STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-2131

) ALICE WALDO d/b/a SILVER DOLLAR CAFE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on May 24, 1989, in Orlando, Florida.

APPEARANCES

For Petitioner: Thomas A. Klein, Esquire

Assistant General Counsel Department of Business Regulation 725 South Bronough St.

Tallahassee, Florida 32399-1007

For Respondent: Edwin R. Ivy, Esquire

Box 3223

Orlando, Florida 32810 STATEMENT OF THE ISSUES

The issue for determination is whether Respondent, holder of an alcoholic beverage license, permitted other persons to possess, sell or deliver, or use controlled substances on the licensed premises of her business in violation of law.

PRELIMINARY STATEMENT

On March 22, 1989, Petitioner issued an EMERGENCY ORDER OF SUSPENSION and a NOTICE TO SHOW CAUSE which had the immediate effect of suspending Respondent's alcoholic beverage license pending the completion of an administrative hearing, if requested, and the entry of a final order by Respondent.

Respondent requested a formal administrative hearing on the charges set forth in the NOTICE TO SHOW CAUSE. In summary, those charges are that Respondent permitted individuals to use, possess, and sell or deliver controlled substances on the licensed premises of her business, contrary to requirements of

Florida law. Subsequently, the matter was transferred to the Division Of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the hearing, Petitioner presented the testimony of one witness.

Respondent also presented the testimony of one witness. While no exhibits were admitted into evidence, the parties stipulated to the chain of custody of certain seized controlled substances with the understanding that Petitioner had the burden of proof of confirming the identity of those substances.

No transcript of the hearing was provided by the parties. Respondent did not timely file proposed findings of fact, and no proposed findings had been received at the time of the preparation of this recommended order. Proposed findings of fact submitted by Petitioner are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent is Alice Waldo, holder of Alcoholic Beverage License No. 45- 00293, Series 2-COP, for a licensed premises known as the SILVER DOLLAR CAFE located in Lake County, Florida.

   
   

2. On or about February 4, 1989, an investigator employed by Petitioner entered the licensed premises of Respondent. While in Respondent's facility, the investigator observed several patrons smoking a substance, which by its smell and usage, he believed to be marijuana. The investigator then met with a patron, ordered a small quantity of crack cocaine and handed the patron some money for the forthcoming purchase. The patron then asked Respondent to hold the money while he left the premises to retrieve the controlled substance from his automobile. Shortly thereafter, the patron returned with the cocaine. The investigator showed the substance to Respondent's daughter, who had taken her mother's place at the bar. The purpose of displaying the drug to the proprietor, or the proprietor's daughter in this instance, was to later illustrate that Respondent condoned the use and sale of the drug in connection with her licensed premises. A field test by the investigator and a later laboratory test confirmed the identity of the substance purchased as crack cocaine.

   
   

3. Petitioner's investigator again entered Respondent's facility on or about February 10, 1989. On this occasion, the investigator purchased a quantity of marijuana from a female patron, then took the substance over to the bar where he proceeded to roll a marijuana cigarette in the presence of Petitioner. At no time did Petitioner inform the investigator that controlled substances were not allowed on the licensed premises. Upon later laboratory analysis, the substance was confirmed to be marijuana.

   
   

4. Upon leaving Respondent's facility on February 10, 1989, Petitioner's investigator met an individual within 10 feet of the front door of the premises who sold him a quantity of a substance later determined by laboratory analysis to be crack cocaine.

   
   

5. On or about February 24, 1989, Petitioner's investigator entered Respondent's facility. On the front porch of Respondent's facility, the investigator purchased a quantity of a substance later determined by the investigator's field test and a subsequent laboratory analysis to be crack cocaine. After completing the purchase of the substance, the investigator went inside the facility, placed the material on the counter and recounted to

   Respondent that it had just been purchased on the front porch. Respondent made no reply to the investigator's announcement and, instead, complied with his request for change for a $20 bill. Upon receipt of the change, the investigator wrapped the crack cocaine in a $1 bill in Respondent's presence.

   
   

6. On February 28, 1989, Petitioner's investigator again entered Respondent's facility. He approached a black female named "Lilly" and gave her

   $20 for the purchase of crack cocaine. However, after the lady accepted the $20 and left to retrieve the cocaine, she did not return. The investigator complained to Respondent that "Lilly" had failed to deliver the drug to him.

   The investigator also told Respondent that the lady could keep the $20 if Respondent would get him some of the drug. At that time, Respondent referred the investigator to a group of three male patrons on the front porch of the facility who appeared to be smoking marijuana. At no time during this incident did Respondent take any steps to prevent the use of any controlled substances on the licensed premises.

   
   

7. Subsequently, Petitioner's investigator returned to Respondent's facility on or about March 4, 1989. He purchased a beer and went outside to the front porch of the facility. He observed a number of furtive transactions where currency was passed between certain individuals. He noticed Respondent go to one of the automobiles in the facility parking lot, get into the automobile, engage in conversation with the occupants and shortly thereafter emerge from the automobile. Respondent went back into the facility. The investigator approached a black male and gave him $20 for some crack cocaine. The black male took the investigator's money, then went directly to the automobile where Respondent had been previously. He returned shortly thereafter to the investigator with two pieces of a substance which later tested positive, via field test and laboratory analysis, as cocaine.

   
   

8. During another visit to Respondent's facility on or about March 9, 1989, Petitioner's investigator observed a patron rolling what appeared to be marijuana cigarettes in Respondent's presence. While Respondent took no action to prohibit the use or possession of the apparently controlled substance, she did get her coat and leave shortly after the investigator's arrival.

   
   

9. On or about March 11, 1989, Petitioner's investigator reentered Respondent's facility. The investigator purchased a small quantity of crack cocaine from a black male on the front porch of the facility. The investigator then took the controlled substance inside the building and displayed it to Respondent, telling her that he had just obtained the drug on the porch. Respondent asked the investigator if he was going to smoke the drug, and he replied yes. Later, a field test and laboratory analysis confirmed the drug to be cocaine.

   
   

10. On or about March 17, 1989, Petitioner's investigator visited Respondent's facility. This time the investigator purchased a small quantity of a drug on the front porch of the building which, upon subsequent field test and laboratory analysis, was confirmed to be cocaine. After completing the purchase, the investigator took the substance inside and showed it to Respondent. Later in the evening, the investigator engaged Respondent in conversation on the front porch and related to her that he had observed numerous drug transactions taking place in her facility. Respondent smiled in acknowledgment of the investigator's statement and replied that she certainly hoped he was not a policeman. He told her that he was not a policeman. Respondent took no action to prohibit further use or transactions relating to drugs on the premises.

    CONCLUSIONS OF LAW

    
    

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

    
    

12. The proof establishes that Respondent has fostered, condoned or negligently overlooked trafficking and use of illegal controlled substances on the licensed premises. By permitting such drug transactions to take place on her licensed premises, Respondent's conduct constitutes a violation of Section 561.29(1)(a), Florida Statutes, which prohibits any licensee of Petitioner from "permitting another on the licensed premises to violate any of the laws of this state or of the United States."

    
    

13. Section 893.03, Florida Statutes, designates all of the controlled substances, which the evidence establishes were purchased or delivered on the premises of Respondent's facility, to be controlled substances. Sale or delivery of those controlled substances is prohibited by Section 893.13(1)(a), Florida Statutes.

    
    

14. Respondent's conduct authorizes the revocation or suspension of her license by Petitioner. Section 561.29(1)(a), Florida Statutes.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered revoking Respondent's beverage license bearing number 45-00293, Series 2- COP.

DONE AND ENTERED this 13th day of June, 1989, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1989

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings. 1.-10. Addressed.

Respondent's Proposed Findings. None submitted.

COPIES FURNISHED:

EDWIN R. IVY, ESQUIRE BOX 3223

ORLANDO, FLORIDA 32810

THOMAS A. KLEIN, ESQUIRE DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007

STEPHEN R. MACNAMARA, SECRETARY DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007

LEONARD IVEY, DIRECTOR

DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007

Docket for Case No: 89-002131

Orders for Case No: 89-002131