STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2308

)

JAVIS PUB, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on July 15, 1988, in Orlando, Florida, before Robert E. Neale, Hearing Officer of the Division of Administrative Hearings.

The representatives of the parties were as follows: For Petitioner: Thomas A. Klein, Esquire

Department of Business Regulation

723 S. Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Richard A. Colgrove, Esquire

Firm of Thomas C. Greene, Esquire

212 North Park Avenue Post Office Box 693

Sanford, Florida 32772-0695 BACKGROUND

On May 3, 1988, Petitioner issued an Emergency Order of Suspension and concurrent Notice to Show Cause against Respondent. Petitioner alleged that Jose Javier Zudaire, sole owner and officer of Javis Pub, Inc., and another employee named John sold cocaine to an undercover informant on April 8 and April 21, 1988, respectively. Petitioner alleged that such illicit activity was grounds for license revocation under Section 561.29(1)(a) and (c), Florida Statutes. Petitioner ordered that Respondent's alcoholic beverage license be suspended immediately and that Respondent cease and desist from selling alcoholic beverages.

By Request for Immediate Post-Suspension Hearing dated May 10, 1988, Respondent requested an immediate hearing. By agreement of the parties, the hearing was later postponed.

Petitioner presented three witnesses and offered into evidence eight exhibits. Respondent presented no witnesses and offered into evidence no exhibits. All exhibits were admitted into evidence.

Petitioner filed a proposed recommended order. Treatment accorded the proposed findings of fact is detailed in the Appendix.

FINDINGS OF FACT

1. Respondent currently holds alcoholic beverage license number 69-007441, series 2COP, for the licensed premises known as Javis Pub located at 600 North Highway 17-92, Longwood, Seminole County, Florida.

   
   

2. At all material times, Jose Javier Zudaire (Javi) was the sole owner and officer of Respondent.

   
   

3. At all material times, a person known only by the name of John was employed by Respondent as a bartender.

   
   

4. On April 7, 1988, Sandra D. Owens, who was employed by the Seminole County Narcotic Unit, entered Javis Pub in an undercover capacity with a confidential informant who had advised the law enforcement authorities that illicit drugs were being sold in the bar.

   
   

5. At the time, the informant was negotiating with Javi for the purchase of the bar. The informant introduced Ms. Owens to Javi. In the ensuing conversation, Javi told Ms. Owens that he had not gotten home until 7:00 a.m. that day because he had been out taking cocaine the prior evening. Ms. Owens complained that cocaine was hard to come by. Javi began to discuss the quality of the cocaine that he could obtain and the prices for which he could obtain it. Javi then offered to get Ms. Owens a free sample of his cocaine, but she stated that she would rather purchase it. They then agreed that she would return the next evening and purchase 1/8 ounce for $200 from John, who was the bartender.

   
   

6. When Ms. Owens returned the next evening, John was not there. Javi and Ms. Owens began conversing. After a short time, Javi picked up a pack of cigarettes that Ms. Owens had laid down on the bar, emptied it of most of the cigarettes, took the pack into a back room behind the bar, and returned with the pack, into which he had placed 1/8 ounce of cocaine. Javi then placed the pack in front of Ms. Owens, who placed two one-hundred dollar bills under a nearby ashtray. Javi completed the transaction by taking the two bills.

   
   

7. Before Ms. Owens left the bar, Javi assured her that she would like the cocaine. She left the bar, but returned later in the evening to thank Javi and tell him that she would be leaving town for a week or so.

   
   

8. During the next couple of weeks, Ms. Owens spoke by telephone with Javi and John about seven times. Although she in fact had remained in town, she told them that she was visiting friends in Houston and gave them a telephone number in Houston to call her. Through an arrangement with the Houston police department, they took the calls on a private line and forwarded all messages to Ms. Owens.

   
   

9. On the evening of April 21, 1988, Ms. Owens returned to the bar. She met with John, who told her that he would sell her an ounce of cocaine if she returned to the bar at midnight.

10. Ms. Owens returned to the bar at 11:55 p.m. on April 21. John was waiting outside for her. Together, they entered the bar where they were joined by Javi. Javi asked John if he was going to take care of Ms. Owens. Javi then left the bar and John went to the back room behind the bar and returned with a white envelope containing cocaine. He removed the envelope from a back pocket and Ms. Owens asked him if he wanted to complete the transaction out in the open. He told her not to worry about "my people."

    
    

11. While seated at the bar in good lighting with other persons present, Ms. Owens counted out, onto the surface of the bar, the $1300 cash that they had agreed upon and John gave her the cocaine.

    
    

12. Shortly after purchasing the cocaine, Javi returned to the bar, asked Ms. Owens if John had taken care of her, and assured her that she would like the cocaine.

    
    

13. Petitioner's policy calls for the revocation of an alcoholic beverage license whenever illegal drug sales repeatedly take place in the licensed premises, the premises are declared a public nuisance, and the premises are a place of dealing, storing, selling, or using illegal drugs; the licensee sells a controlled substance one or more times; or an employee makes three or more sales of a controlled substance on the licensed premises and in an open manner so as to indicate culpable negligence on the part of the licensee in the management of the premises.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes.

    
    

15. Petitioner is authorized to revoke or suspend an alcoholic beverage license if the licensee of its agents, officers, or employees, on the licensed premises, violate any Florida or federal law, or permitting another on the licensed premises to violate any Florida or federal law. Section 561.29(1)(a), Florida Statutes.

    
    

16. Petitioner is authorized to revoke or suspend any alcoholic beverage license if a nuisance is maintained on the licensed premises. Section 561.29(1)(c) , Florida Statutes.

    
    

17. Cocaine is a Schedule II controlled substance. Section 893.03(2)(a)4, Florida Statutes. As such, cocaine may not lawfully be sold, purchased, delivered, or possessed with intent to sell or deliver. Section 893.13(1)(a), Florida Statutes.

    
    

18. Any shop, building, or place that is used for the illegal keeping, selling, or delivering of a controlled substance is a public nuisance. Section 823.10, Florida Statutes. It is unlawful for any person to keep or maintain such a shop, building, or place. Section 893.13(2)(a)5, Florida Statutes.

    
    

19. Whoever aids, abets, or otherwise procures a criminal act that is in fact committed is himself guilty of a criminal act. Section 777.011, Florida Statutes.

    
    

20. The sale by Javi of cocaine on the licensed premises violated Florida law and constitutes the action of the licensee. As such, under Petitioner's policy, Respondent's license may be revoked on this basis alone.

21. The second sale required Javi's active approval. Moreover, he procured the sale by arranging the meeting between Ms. Owens and John. Javi's criminal act in the second sale must also be imputed to Respondent. Given the intentional participation of the sole owner and officer of Respondent in the second sale, it is unnecessary to consider whether Respondent was culpably negligent in the second sale. There is no issue of negligence even as to the second sale. A corporation must act through natural persons and, under the circumstances, it is evident that Respondent acted through Javi, its sole owner and officer. Therefore, the intentional actions of Javi must be imputed to Respondent so as to eliminate the need to determine whether Respondent was culpably negligent.

    
    

22. Under the circumstances, Respondent's license may also be revoked because the pub has become a public nuisance.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Section 561.29(1)(a) and (c) Florida Statutes, and revoking the subject alcoholic beverages license.

DONE and RECOMMENDED this 17th day of October, 1988, in Tallahassee, Florida

ROBERT E. MEALE

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 17th day of October, 1987.

APPENDIX TO RECOMMENDED ORDER

Treatment Accorded Petitioner's Proposed Findings 1-2. Adopted.

3. First and last sentences adopted. Remainder rejected as unsupported by the evidence.

4-6 . Adopted.

7. Rejected as legal argument. 8-12. Adopted.

COPIES FURNISHED:

Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Richard A. Colgrove, Esquire

Firm of Thomas C. Greene, Esquire

212 North Park Avenue Post Office Box 695

Sanford, Florida 32772-0693

Leonard Ivey, Director

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32399-1007

Joseph A. Sole, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Docket for Case No: 88-002308

Orders for Case No: 88-002308