STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 95-1482

) I & N STEWART, d/b/a EAST SIDE TAVERN, )

)

Respondent, )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of Administrative Hearings, held a formal hearing in this matter on July 24, 1995, in Dade City, Florida.

APPEARANCES

For Petitioner: Richard A. Grumberg, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Isaiah Stewart, Pro se

Post Office Box 429 Lacoochie, Florida 33537

STATEMENT OF THE ISSUE

Should Respondent's alcoholic beverage license, number 61-00005, 2-COP be revoked, suspended or otherwise disciplined?

PRELIMINARY STATEMENT

By an Administrative Action dated November 8, 1994, and filed with the Division of Administrative Hearings (Division) on March 15, 1995, Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (DABT) is seeking to revoke, suspend or otherwise discipline the Respondent's alcoholic beverage license, number 61-00005, 2-COP. As grounds therefor, it is alleged that Respondent: (a) on May 16, 1994, August 8, 1994, and September 18, 1994, possessed or permitted to be possessed on his licensed premises, alcoholic beverages not authorized by law to be sold by the licensee, contrary to Section 562.02, Florida Statutes; (b) on August 8, 1994, allowed Marlon Vashon Inmon, age 19, Ronald Jaron Adair, age 15, and Tameika Ranell Shaw, age 16, to be in possession of an alcoholic beverage, contrary to Section 562.111, Florida Statutes; (c) on September 18, 1994, sold, served or gave an alcoholic beverage on his licensed premises to Corey Anthony Owens, age

20, contrary to Section 562.11, Florida Statutes; (d) on September 18, 1994, allowed Corey Anthony Owens, age 20, to possess an alcoholic beverage on his licensed premises, contrary to Section 562.111, Florida Statutes; (e) on August 8, 1994, kept or maintained a premises which was resorted to by persons who used or sold illegal drugs, contrary to Chapter 893, Florida Statutes; (f) on September 18, 1994, refused to admit beverage officers to examine alcoholic beverages on his licensed premises, contrary Section 562.41, Florida Statutes; and (g) between the dates of February 1994, and September 1994, maintained a public nuisance at his licensed premises, contrary to Chapter 823, Florida Statutes. By a Request For Hearing, the Respondent denied the allegations and requested a formal administrative hearing under Section 120.57(1), Florida Statutes.

In support of its charges, DABT presented the testimony of Ashley Murray, Keith B. Hamilton, John T. Allen, Michael Scott Freese, Woodrow Allen Ray, Bruce Schmelter and Bruce E. Ashley. DABT's exhibits 1 through 12 were received as evidence. Respondent testified on his own behalf but did not present any other witness. Respondent did not offer any documentary evidence. DABT made an ore tenus motion to have Petitioner's Request For Admissions deemed admitted by the Respondent due to his failure to timely respond. The motion was denied on the basis that Respondent gave sufficient mitigating circumstances for not having timely responded to Petitioner's Request For Admissions. DABT also made an ore tenus motion to amend counts seven through eleven of the Administrative Action by striking the date, August 24, 1994, in counts seven through ten and substituting the date, September 18, 1994; and to strike the date, August 1994, in count eleven and substituting the date, September 1994. Without objection, the motion was granted.

A transcript of the proceeding was filed with the Division on August 2, 1995. DABT timely filed its proposed findings of fact and conclusions of law. The Respondent elected not to file any proposed findings of fact and conclusions of law. A ruling on each proposed finding of fact submitted by DABT has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. DABT is the division within the Department of Business and Professional Regulation charged with the responsibility of administering and enforcing the Beverage Law of the State of Florida.

   
   

2. At all times material to this proceeding, Respondent held a series 2- COP alcoholic beverage license, number 61-00005, authorizing the Respondent to sell only beer and wine on the premises of East Side Tavern (Tavern), located on Cummer Road, 1 mile east of Highway 301, Lacoochee, Pasco County, Florida.

   
   

3. Around 12:30 a.m. on May 16, 1994, Special Agents Ashley Murray and Keith B. Hamilton went to the Tavern in an undercover capacity. This undercover activity was initiated due to a request of the Pasco County Sheriff's Office (PCSO) concerning allegations of drugs sales on the premises of the Tavern.

   
   

4. Agent Murray has been a sworn law enforcement officer for five and one- half years. Agent Murray completed a two-week basic Drug Enforcement Administration (DEA) drug school regarding the identification, sale and the manner of use of drugs. Agent Murray also completed a three-day undercover DEA

   school. During her five and one-half years as a sworn law enforcement officer, Agent Murray has been involved in at least 100 occasions where drugs were being sold or used.

   
   

5. Agent Hamilton has been a law enforcement officer since 1981. During Agent Hamilton's tenure as a law enforcement officer he has been involved in numerous training classes regarding the identification, sale and manner of use of drugs, including courses taught by DEA. Agent Hamilton has been trained to recognize the scent of burning marijuana. Agent Hamilton has been in at least

   70 different establishments where drugs, including marijuana, were being sold and used.

   
   

6. As the agents approached the Tavern, they noticed a large number of people (100-150) standing in front of the Tavern and in a vacant lot across the road from the Tavern. Additionally, cars were parked along Cummer Road in front of the Tavern. The agents also testified that a "lot" of the people standing outside appeared to be "young".

   
   

7. Upon entering the Tavern, the agents noticed that no one was checking identification at the door.

   
   

8. The Tavern consists of two rooms divided by wall with a door between the two rooms. The bar is located in one room. The second room is a disco/dance area. Based on the description of the inside of the Tavern, a person behind the bar would not have clear view of all of the disco/dance area.

   
   

9. On May 16, 1994, the Tavern was crowded with customers. Agent Murray saw what appeared to her to be a "lot of really young kids" in the crowd.

   
   

10. Upon entering the Tavern on May 16, 1994, Agent Hamilton detected a scent in the air that resembled, based on his training and experience, the odor of burning marijuana. Agent Hamilton did not actually see anyone smoking marijuana inside the Tavern. Agent Murray also noticed, both on the inside of the Tavern in the dance floor area and outside the Tavern by the entrance, what appeared to her to be a hand-to-hand exchange between customers of what appeared to be money for something that she could not identify.

    
    

11. As Agent Murray left the Tavern she noticed what appeared to her, based on experience and training, to be customers passing and maybe smoking marijuana. However, Agent Murray did not actually see the marijuana or the customers actually smoking marijuana. Agent Murray also noticed a customer with a closed fist going to another customer and placing the closed fist over an open palm and then the release of the closed fist. Based on her training and experience, this appeared to Agent Murray to be an exchange of crack cocaine between the customers. Agent Murray did not see or confirm that any crack cocaine was actually being exchanged.

    
    

12. Upon reentering the Tavern, the agents were together at the bar and saw a black female customer place a large bottle of liquid on top of the bar close to where they were sitting. The customer ordered something from the bar and left with the bottle. Agent Murray testified that by observing the label on the bottle she was able to identify the liquid as scotch whiskey. Agent Hamilton testified that he observed the same black female with a bottle of "alcohol, distilled spirits" and further identified the liquid as a "bottle of gin". Neither Agent Murray nor Agent Hamilton testified that the bottle bore the manufacturer's insignia, name or trademark. Both agents were apparently close enough to the customer to be able to observe the label. Neither agent smelled

    or tasted the contents of the bottle. For reasons of their own, the agents did not seize the bottle. Agent Murray thought she saw the Respondent behind the bar on that day. Agent Hamilton referred to the person behind the bar that day as the clerk but did not identify the Respondent as being the clerk on May 16, 1994.

    
    

13. On August 8, 1994, ten DABT agents and 20 deputies from the PCSO conducted a walk-through inspection (inspection) of the Tavern. The agents and deputies were dressed in such attire as to be visibly recognized as law enforcement officers.

    
    

14. During the inspection on August 8, 1994, DABT Sergeant Allen Ray observed an individual inside the Tavern in possession of a cup of beer, which individual Sergeant Ray suspected of being under 21 years of age. Sergeant Ray testified that this person identified herself as Tamieka Ranell Shaw and that Shaw advised him she was under 21 years of age. Sergeant Ray then took Shaw outside and placed her in the custody of Agent Hamilton for processing. Agent Hamilton testified that Shaw advised him that she was 16 years of age. At this time, Shaw did not have a driver's license or any other type of identification in her possession that would verify her age or date of birth. Furthermore, Shaw was not identified by a family member or anyone else having personal knowledge of Shaw's age or date of birth. Neither Shaw nor anyone else having personal knowledge of Shaw's age testified at the hearing. Furthermore, DABT did not present any documentary evidence of Shaw's age at the hearing. DABT failed to prove that Shaw was under 21 years of age on August 8, 1994. There was no evidence that Respondent or any person working for Respondent had sold, given, served or permitted the beer to be served to Shaw.

    
    

15. During the August 8, 1994, inspection, DABT Sergeant John Allen observed three individuals in the Tavern that he suspected of being under 21 years of age that were in possession of what Sergeant Allen considered to be an alcoholic beverage. Sergeant Allen escorted each of these individuals out of the Tavern separately. None of these individuals had a drivers license or any other type of identification to verify their age or date of birth. Sergeant Allen testified that each of the individuals identified themselves and admitted to being under the age of 21 years. However, one of the individuals managed to leave the premises before any other identification could be made.

    
    

16. Sergeant Allen testified that Ronald Adair, one of the alleged underage customers referred to in Finding of Fact 15 above, was identified by his mother as being under 21 years of age in a telephone conversation with Sergeant Allen on August 8, 1994. However, neither Adair, his mother nor anyone else having personal knowledge of Adair's age was present at the hearing to testify as to Adair's age. Furthermore, DABT did not present any type of documentary evidence of Adair's age at the hearing. DABT failed to prove that Adair was under 21 years of age on August 8, 1994.

    
    

17. The person identifying himself as Marlon Inmon, another of the alleged underage customers referred to Finding of Fact 15 above, was alleged to have been in possession of an alcoholic beverage inside the Tavern on August 8, 1994. Sergeant Allen testified that he talked to a relative of Inmon's over the telephone and that this relative identified Inmon and advised Sgt. Allen that Inmon was under 21 years of age. However, this person did not talk to or see the person claiming to be Inmon. Neither Inmon nor the person identifying Inmon over the telephone or anyone else with personal knowledge of Inmon's age testified at the hearing. Furthermore, DABT did not present any documentary

    evidence of Inmon's age at the hearing. DABT failed to prove that Inmon was under 21 years of age on August 8, 1994.

    
    

18. The third alleged underage person referred to in Finding of Fact 15 above in possession of an alcoholic beverage on August 8, 1994, was never identified by anyone before he left the premises. Neither this person nor anyone else having personal knowledge of this person's age testified at the hearing as to this person's age. Furthermore, DABT did not present any documentary evidence as to this person's age. DABT has failed to prove that this person was under 21 years of age on August 8, 1994.

    
    

19. During the walk-through inspection on August 8, 1994, DABT Special Agent Michael Freese seized a 1.75 liter of Seagrams gin, alcoholic beverage. The gin was in plain view on a table in the dance floor area. In attempting to seize the gin, Agent Freese had a confrontation with a customer who claimed the gin belonged to him. There was no evidence that the gin had been purchased on the premises. This gin is not the type of alcoholic beverage allowed to be possessed by the licensee or anyone else on the licensed premises of a licensee holding only a 2-COP alcoholic beverage license such as Respondent. The Respondent was present at the Tavern on August 8, 1994, and either directly observed, or was in such a position at the bar to have easily detected the presence of the unauthorized alcoholic beverage on the table.

    
    

20. Also during the walk-through inspection on August 8, 1994, Agent Freese observed a small plastic bag containing a substance that resembled marijuana on the floor behind one of the speakers around the "DJ" booth. Agent Freese seized the bag and identified it as marijuana by sight and smell. A field test conducted by Agent Freese indicated that the substance was marijuana. However, Agent Freese testified that the field test may not be 100 percent accurate. No laboratory analysis was made of the substance suspected of being marijuana. DABT failed to prove that the substance was in fact marijuana. Likewise, DABT has failed to prove that Stewart was aware of alleged marijuana being present on the premises.

    
    

21. During the walk-through inspection on August 8, 1994, Lieutenant Bruce Schmelter, PCSO, seized a loaded 22-caliber revolver that was protruding from beneath one of the speakers near the "DJ" booth. The revolver was turned over to DABT. However, DABT failed to prove that Stewart was aware of the revolver being present on the premises.

    
    

22. After the walk-through inspection on August 8, 1994, Sergeant Allen gave Respondent official notice of the problems encountered during the inspection.

    
    

23. On September 18, 1994, a second walk-through inspection (second inspection) was conducted at the Tavern by ten DABT agents and 25 PCSO deputies. The DABT agents and the deputies from the PCSO were dressed in such attire as to be visibly recognized as law enforcement officers.

    
    

24. During the second inspection, agents Murray and Aikens advised Respondent that they intended to go behind the bar to secure that area. After advising Stewart of their intended action, there was a confrontation between Stewart and the agents wherein Stewart's daughter became involved. The agents became concerned because of the crowd and notified Sergeant Ray of the problem. Sergeant Ray advised Stewart of why they were there and that DABT agents had the

    authority to secure the area behind the bar. After this explanation, Respondent allowed Sergeant Ray and another DABT agent behind the bar without further incident.

    
    

25. After the incident at the bar during the second inspection, Agents Murray and Aikens seized a bottle of Seagrams Extra Dry Gin, an alcoholic beverage, which they found on the floor against the wall in the area of the bar inside the Tavern. This gin is not the type of alcoholic beverage allowed to be possessed by the licensee or anyone else on or at the licensed premises of a licensee holding a 2-COP alcoholic beverage license such as Respondent. The Respondent was present in the Tavern on September 18, 1994, and either directly observed, or was in such a position as to have easily detected the presence of the unauthorized alcoholic beverage.

    
    

26. During the second inspection, Agent Hamilton observed an individual in possession of a bottle of beer which individual he suspected of being under 21 years of age. Agent Hamilton testified that the individual was identified as Corey Anthony Owens, 20 years of age. Neither Owens nor anyone else having personal knowledge of Owens' age were present to testify at the hearing. Furthermore, DABT did not present any documentary evidence as to Owens' age. Agent Hamilton testified that Owens advised him that he had purchased the beer in the Tavern from a black male behind the bar. DABT presented no other evidence that the beer had been purchased in the Tavern. Although DABT has proven that Owens did have beer in his possession while in the Tavern on September 18, 1994, DABT failed to prove that Owens purchased or was served or given the beer in his possession on September 18, 1994, by Stewart or his servant, agent or employee. Furthermore, DABT failed to prove that Owens was under 21 years of age on September 18, 1994.

    
    

27. On December 7, 1994, Captain Bruce Ashley met with Stewart at Stewart's request to discuss the Administrative Action that had been served on Stewart. At Stewart's request, Captain Ashley marked an X by the first box on the Request For Hearing which states as follows: "I dispute issues of fact. (Please list which of the charges and counts in the Administrative Action you dispute and why)." Also at Stewart's request, Captain Ashley wrote the following: "There are facts and issues that are not true that need to be discussed. I have documents and facts to bring out about this matter." (Emphasis supplied) Below this statement Captain Ashley wrote "Written On Behalf Of Licensee By" and signed his name. Below the above underlined statement there was an X with Isaiah Stewart's signature. On December 8, 1994, Captain Ashley wrote a memorandum setting forth what Captain Ashley considered to be the conversation between he and Stewart on December 7, 1994. However, because of the circumstances under which this conversation with Respondent occurred and the conflict between the statement signed by Respondent and Captain Ashley's memorandum, the memorandum is somewhat suspect and a cause for concern, and thereby lacks credibility.

    
    

28. DABT's exhibit 4 consist of computer records from the PCSO listing the calls that the PCSO responded to around the Tavern from May 12, 1993 through June 29, 1994. Using these computer records DABT summarized the type of calls and the total number of each type of call received between February, 1994 and June 29, 1994. This summary shows a total of 69 calls of various types responded to by the PCSO during the period covered by the summary. Of the 69 calls listed in the summary, 22 were calls to backup units which apparently were backup for some of the other 47 calls. Ten calls were to assist a sick person. The balance of the calls were as follows: 2-affray/incite or encourage riot; 1- special patrol request; 1-juvenile problem; 3-miscellaneous incident; 2-field

    interrogation report; 4-shooting in area; 1-battery (simple); 4- disturbance(noise); 1-accident traffic; 1-illegal parking; 1-suspicious person; 3-narcotics violation; 1-throwing a deadly missile; 1-obstructing police without violence; 1-warrant arrest; 1-robbery, strong arm; 1-simple assault; 2-traffic warning; 1-aggravated assault; 1-weapons; 1-shooting into occupied dwelling; 1- battery on officer and 2-special detail. It is clear from the PCSO computer printout that the whole area around Cummer Road, not just the area around the Tavern, kept the PCSO busy responding to calls during the period in question.

    DABT presented no evidence as to the legitimacy of the call or if the call involved the activity of the Tavern's customers on the premises of the Tavern or the activity of someone else in the vicinity of the Tavern or what action was required upon the PCSO responding to the call.

    
    

29. DABT failed to prove that Respondent kept or maintained a premises which was resorted to by persons who use or sell illegal drugs.

    
    

30. DABT failed to prove that between the dates of February 1994, and September 1994, the Respondent maintained a public nuisance at his licensed premises.

    
    

    CONCLUSIONS OF LAW

    
    

31. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

32. DABT is statutorily empowered to suspend or revoke an alcoholic beverage license, such as the one held by Respondent, based upon any of the grounds enumerated in Section 561.29(1), Florida Statutes, which in pertinent part provides:

    
    

    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 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.

          . . . .

          (c) Maintaining a nuisance on the licensed premises.

          
          

33. A literal reading of the language in Section 561.29(1), Florida Statutes, suggests that a licensee may have its license suspended or revoked based on a violation of state law committed by its agents, officers, servants, or employees on the licensed premises, regardless of the licensee's own personal fault or misconduct in connection with the unlawful activity. However, the courts of this state have consistently held to the contrary. Under the well- established case law, a license may be suspended or revoked pursuant to Section 561.29(1)(a), Florida Statutes, only if it is determined that the licensee is culpably responsible for the violation as a result of his own negligence, intentional wrongdoing, or lack of diligence. See Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (1st DCA Fla. 1992) and the cases cited therein.

    
    

34. Counts 1, 5 and 8 of the Administrative Action charge Respondent, his agent, employee or servant with possessing or permitting to be possessed at or in Respondent's licensed premises, alcoholic beverages not authorized by law to be sold by the licensee, contrary to Section 562.02, Florida Statutes. Respondent was present at the licensed premises on August 8, 1994, and September 18, 1994, and either directly observed or was in such a position as to have easily detected the presence of the unauthorized alcoholic beverages in possession of the customers in the licensed premises on August 8, 1994, and September 18, 1994. Furthermore, Respondent had been placed on notice as to this activity after the inspection on August 8, 1994, and should have been more diligent in his effort to have his customers cease this activity. However, there was insufficient evidence to establish that the contents of the bottle observed by Agents Murray and Hamilton on May 16, 1994, was in fact an unauthorized alcoholic beverage. Therefore, DABT has proven the allegations of Counts 5 and 8 but failed to prove the allegation of Count 1.

    
    

35. Counts 2, 3, 4 and 10 of the Administrative Action charge Respondent, his agent, servant, or employee with allowing persons under 21 years of age to possess an alcoholic beverage on Respondent's licensed premises contrary to Section 562.111, Florida Statutes. The testimony offered to prove these allegations tended to show that the individuals were under 21 years of age and that each was in possession of an alcoholic beverage. However, since the testimony concerning these individuals age was hearsay and did not come within any exception to the hearsay rule or supplement or explain other evidence, it is insufficient to establish that the individuals were under 21 years of age.

    While DABT has proven that each of these individuals did possess an alcoholic beverage, it has failed to prove the allegation that the individuals were under

    21 years of age. Therefore, DABT failed to prove the allegations of Counts 2, 3, 4 and 10. However, assuming arguendo that each of these individuals was under 21 years of age, Section 562.111, Florida Statutes, prohibits possession of alcoholic beverages by persons under 21 years of age, and is directed to criminal sanctions for the underaged person possessing an alcoholic beverage, not administrative sanctions against a licensee such as the Respondent. However, if it can be established that the Respondent permitted an underaged person to possess an alcoholic beverage on the licensed premises, thereby permitting the underaged person to violate Section 562.111, Florida Statutes, then the Respondent's license could be disciplined under Section 561.29(1)(a), Florida Statutes. In this case, there was no evidence to establish that Respondent permitted the individuals to possess the alcoholic beverage.

36. Count 6 of the Administrative Action charges that Respondent, his agent, employee or servant did keep or maintain a premises which was resorted to by persons who use or sell illegal drugs, contrary to Chapter 893, Florida Statutes. The testimony of the DABT agents offered to prove this allegation indicated, based on the agents' experience and training, that marijuana was possibly present and being smoked in or at the licensed premises and that drug transactions were possibly taking place in or at the licensed premises. However, there was no competent, substantial evidence that marijuana was in fact present and being smoked in or at the licensed premises or that drug transactions were in fact taking place in or at the licensed premises. Therefore, DABT failed to prove the allegations of Count 6.

    
    

37. Count 7 of the Administrative Action charges Respondent, his agent, employee or servant refusing to admit DABT agents to examine alcoholic beverages on his licensed premises, contrary to Section 562.41, Florida Statutes.

    Although the Respondent did question DABT's authority of going behind the bar, once DABT's authority was thoroughly explained to Respondent, there was no further incident concerning this matter. There was no evidence that Respondent or his employee refused DABT admittance but only questioned its agents' authority to go behind the bar. Likewise, there was no evidence that Respondent or his employee forcibly obstructed or hindered DABT agents in the furtherance of their duty. Therefore, DABT failed to prove the allegations of Count 7.

    
    

38. Count 9 of the Administrative Action charges Respondent, his agent, employee or servant with selling, serving or giving an alcoholic beverage on the licences premises to Corey Anthony Owens, an alleged underaged person, contrary to Section 562.11, Florida Statutes. The testimony offered to prove this allegation tended to show that Owens was under 21 years of age and that he had purchased an alcoholic beverage from Respondent, his agent, servant or employee. However, since the testimony was purely hearsay and did not come within any exception to the hearsay rule or supplement or explain other evidence it is insufficient to establish that Owens was under 21 years of age or that Respondent sold, gave, served or permitted to be served an alcoholic beverage to Owens. While DABT has proven that Owens did in fact have an alcoholic beverage in his possession, DABT has failed to prove that Owens was under 21 years of age or that he purchased the alcoholic beverage from Respondent. Therefore, DABT failed to prove the essential allegations of Count 9.

    
    

39. Count 11 of the Administrative Action charges Respondent, his agent, employee or servant with maintaining a public nuisance at Respondent's licensed premises between the dates of February 1994, and September 1994, contrary to Chapter 823, Florida Statutes. It is unclear as to the basis for the allegations of Count 11. However, from the language it appears that the basis is the number of calls responded to by the PCSO around the Tavern between February, 1994, and September, 1994, and the allegation that Respondent, his agent, servant or employee did keep or maintain a premises which was resorted to by persons who use or sell illegal drugs, contrary to Chapter 893, Florida Statutes. However, a call is just that - a call - and without more is of little use in determining if the activity around the Tavern was such that it created a public nuisance. DABT presented no evidence as to the legitimacy of the calls or if the calls involved the activity of the Tavern's customers on the premises of the Tavern or the activity of someone else in the vicinity of the Tavern or what action was required by PCSO upon responding and determining the nature of the call. As to the allegation that Respondent, his agent, servant or employee did keep or maintain a premises which was resorted to by persons who use or sell illegal drugs, contrary to Chapter 893, Florida Statutes, it has previously been determined that DABT failed to establish facts necessary to prove that

    allegation. Therefore, DABT has failed to establish facts necessary to prove that Respondent maintained a public nuisance at his licensed premises between February, 1994, and September, 1994 and thereby failed to prove the allegations of Count 11.

    
    

40. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino

1. Department of Health and Rehabilitative Services, 348 So.2d 349 (1st DCA Fla. 1977). DABT must prove the material allegations of the Administrative Action by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Pic N'Save v. Department of Business Regulation, 601 So.2d 245 (1st DCA Fla. 1992). DABT has shown by clear and convincing evidence that Respondent did possess or permit to be possess an unauthorized alcoholic beverage on his licensed premises on August 8, 1994, and September 18, 1994, and has proven the allegations of Counts 5 and 8 but has failed to prove the allegations of Counts 1, 2, 3, 4, 6, 7, 9, 10, and 11 by clear and convincing evidence.

   
   

   RECOMMENDATION

   
   

   Based upon the foregoing Findings of Fact and Conclusions of Law and having reviewed the penalty guidelines set forth in Rule 61A-2.022, Florida Administrative Code, it is recommended that a final order be entered finding Respondent guilty of the allegations contained in Counts 5 and 8 of the Administrative Action and for this violation that DABT assess an administrative fine in the amount of $1,000 against Respondent. It is further recommended that DABT dismiss Counts 1, 2, 3, 4, 6, 7, 9, 10 and 11 of the Administrative Action.

   
   

   RECOMMENDED this day 27th of September, 1995, at Tallahassee, Florida.

   
   

   
   

   WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building

   1230 Apalachee Parkway

   Tallahassee, Florida 32399-1550

   (904) 488-9675

   
   

   Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1995.

   
   

   APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1482

   
   

   The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner in this case.

   
   

   Petitioner's Proposed Findings of Fact.

   
   

   1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1-3(2); 4-5(3); 6(6); 7(7); 8(8); 9(9); 10(5); 11(10); 12(4,10-11); 13(11); 14(12); 15(13); 17-18(15); 21-22(19); 24-25(21); 26(22); 27(23); 28-29(24); 30(25); 32(27); and 34(28).

   2. Proposed finding of fact 16 is adopted in Finding of Fact 14, except that portion regarding the age of Shaw, which is rejected.

   3. Proposed finding of fact 19 is adopted in Finding of Fact 16, except that portion regarding the age of Adair, which is rejected.

   4. Proposed finding of fact 20 is adopted in Finding of Fact 17, except that portion regarding the age of Inmon, which is rejected.

   5. Proposed finding of Fact 23 is adopted in Finding of Fact 19, except that the field test did not absolutely prove that the substance was in fact marijuana.

   6. Proposed finding of fact 31 is adopted in Finding of Fact 26, except that portion regarding the age of Owens and that Owens purchased the beer in the Tavern, which is rejected.

   7. Proposed finding of fact 33 is rejected as not being supported by competent, substantial evidence in the record.

The Respondent elected not file any proposed findings of fact.

COPIES FURNISHED:

John J. Harris, Director Division of Alcoholic

Beverages and Tobacco Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Linda L. Goodgame, Esquire General Counsel

Department of Business Professional Regulations

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Richard A. Grumberg, Esquire Office of the General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Isaiah Stewart, Pro se Post Office Box 429 Lacoochie Florida 33537

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-001482

Orders for Case No: 95-001482