STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

MOTI'S, INC., d/b/a )

CONTINENTAL MARKET, )

)

Respondent. )

Case No. 07-0780

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on July 16, 2007, at sites in Tallahassee and Lauderdale Lakes,

Florida.

APPEARANCES

For Petitioner: Michael J. Wheeler, Esquire

Department of Business and Professional Regulation

Northwood Centre, Suite 6 1940 North Monroe Street

Tallahassee, Florida 32399-1020

For Respondent: Gul Ahmed Moti

Moti's Inc., d/b/a Continental Market 3980-90 North Andrews Avenue

Oakland Park, Florida 33309

STATEMENT OF THE ISSUES

The primary issue in this disciplinary proceeding is whether Respondent, which operates a convenience store and sells alcoholic beverages on the premises under a license issued by Petitioner, permitted a sale of drug paraphernalia to occur in the store, in violation of the statutes governing holders of beverage licenses. If Petitioner proves the alleged violation, then it will be necessary to consider whether penalties should be imposed on Respondent.

PRELIMINARY STATEMENT

On January 4, 2007, Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, issued an Administrative Action [Complaint] against Respondent Moti's, Inc., d/b/a Continental Market, charging the liquor licensee with one count of permitting the sale of drug paraphernalia on the licensed premises. Respondent timely requested a formal hearing to contest the allegations, and, on February 14, 2007, the matter was filed with the Division of Administrative Hearings.

The final hearing took place on July 16, 2007, as scheduled, with both parties present. Petitioner offered three exhibits, numbered 1 through 3, and each was received in evidence. In addition, Petitioner called as witnesses its

Special Agents, Ralius Thompson and Michael Fisten. Respondent presented no evidence.

The transcript of the final hearing was filed on September 25, 2007, and thereafter the parties were notified that their respective proposed recommended orders would be due on or before October 5, 2007. Petitioner submitted a proposed recommended order ahead of the deadline, and the undersigned

gave it careful consideration. On October 12, 2007, Respondent, which had been granted additional time to file a proposed recommended order, furnished a brief written argument. This, too, was considered.

Unless otherwise indicated, citations to the Florida Statutes refer to the 2006 Florida Statutes.

FINDINGS OF FACT

1. At all relevant times, Respondent Moti's, Inc., d/b/a Continental Market ("Continental"), has held a license to sell alcoholic beverages at retail. Consequently, Continental is subject to the regulatory and disciplinary jurisdiction of Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (the "Division").

2. On December 12, 2006, two undercover agents of the Division, together with a detective from the Broward County Sheriff's Office, conducted a "sting" operation at the convenience store that Continental owns. The sting was arranged

   in response to complaints that the Sheriff's Office had received regarding sales of drug paraphernalia (specifically "crack pipes" used for smoking crack cocaine), which were allegedly taking place at this store. The purpose of the sting was to purchase a "crack pipe" and arrest anyone involved in the sale.

3. Pursuant to the plan, Special Agent Ralius Thompson entered the store in an undercover capacity. He was wearing a "wire" (concealed microphone) and a hidden camera. These devices, which were monitored by the other agent and the detective (both of whom remained outside the store), allowed the ensuing transaction to be recorded on a videotape.

4. Once inside, Thompson headed first to the cooler, where he took a six-pack of beer from the shelf. He then proceeded to the counter, to purchase the beer. As the clerk, Aziar Baig, was ringing up the sale, Thompson whispered, "Got any pipes? Got any pipes?"i

5. Baig reached down behind the counter and pulled up a "love rose." (A love rose is a trinket, a tiny fake flower encased in a thin glass tube, which latter is about 4 inches long. Though the tube containing a love rose can be used as a pipe, love roses are not necessarily drug paraphernalia; they can be legally sold, purchased, and possessed.) "You're talking about here?" Baig asked, displaying a love rose.

6. "Yeah, smoke my crack in, man, smoke my crack in," replied Thompson. "A pipe——got a stem?"

7. "Huh?" said Baig.

   
   

8. "A stem," repeated Thompson. (According to the evidence, the term "stem" is street talk for filter. Filter material is inserted in one end of the pipe to prevent the user from inhaling the burning cocaine "rock.")

9. "This one?" Baig inquired, holding up a Chore Boy® copper scrubber. (Chore Boy® scrubbers are clearly legal merchandise having an obvious, non-nefarious purpose. According to the evidence, however, the metal in these pot scrubbers can be used illicitly as a crack pipe filter.)

10. "Yeah," said Thompson, who then paid $6.75 for the items.

11. Shortly after making this sale, Baig was arrested on the charge of delivering drug paraphernalia, which is a third- degree felony under Section 893.147(2), Florida Statutes.

12. The evidence presented in this case is sufficient, for present purposes, to support the inference——which the undersigned draws——that Baig either knew or reasonably should have known that his customer (Thompson) intended to use the love rose and copper scrubber to fashion a makeshift crack pipe.ii Thus, it is determined, as a matter of ultimate fact, that Baig committed the crime of delivering drug paraphernalia.

13. There is, on the other hand, no persuasive evidence (or any evidence of any quality, for that matter) establishing that the corporate licensee (as opposed to its employee Baig) committed any misconduct, e.g. negligent failure to train or supervise employees; failure to exercise due diligence in attempting to prevent unlawful sales; or fostering or condoning such sales, for which the Division could impose discipline against Continental pursuant to Section 561.29(1), Florida Statutes. It is determined, therefore, as a matter of ultimate fact, that Continental is not guilty of the pending charge, namely permitting the sale of drug paraphernalia on the licensed premises.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2007).

15. Section 561.29, Florida Statutes, sets forth the acts for which the Division may impose discipline. This statute provides, in pertinent part:

    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 her 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 beverages or license requirements of special licenses issued under s. 561.20, 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. A conviction of the licensee or his or her or its agents, officers, servants, or employees 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.

          
          

16. Although the statute seems unambiguously to make licensees variously liable for the misdeeds of their employees, the courts consistently have declined to read Section 561.29(1)(a) as a warrant for imposing discipline under the respondeat superior doctrine. See, e.g., Brother J. Inc. v. Dep't of Bus. and Prof. Regulation, Div. of Alcoholic Beverages and Tobacco, 32 Fla. L. Weekly D1909d (Fla. 1st DCA Aug. 10, 2007); Pic N' Save Central Fla., Inc. v. Dep't of Bus. Regulation, Div. of Alcoholic Beverages and Tobacco, 601 So. 2d 245, 249-56 (Fla. 1st DCA 1992). To suspend or revoke a beverage license under the statute as judicially construed, the Division must clearly and convincingly prove misconduct personal to the licensee. Pic N' Save, 601 So. 2d at 249-56. This means

    that a licensee cannot be punished unless it is shown that he personally committed, or is personally culpable for, a disciplinable offense. Personal culpability attaches, for example, when a licensee knows, or should know, about the misconduct of his employees; negligently fails to train or supervise employees; negligently overlooks, condones, or fosters the wrongdoing of employees; or fails to exercise due diligence in preventing misconduct. Id. at 250.

17. Significantly, moreover, to establish a licensee's personal responsibility in regard to a violation for which discipline could be imposed, the prosecuting agency must present evidence of the minimum standards of conduct against which the licensee's performance can be judged. As the court wrote in Pic N' Save:

    Proof by clear and convincing evidence of a licensee'[s] negligent training or lack of diligence in supervising its employees requires more than merely proving that three illegal sales occurred on the licensee's premises during a six-month period. The imposition of personal responsibility on the licensee for illegal sales by its employees requires proof of minimum standards of conduct, either by adopted rules, communicated agency policy, or expert testimony, against which the licensee's alleged misconduct can be judged.

    Otherwise, determining when a licensee is to be held responsible for employee misconduct will become simply a matter of personal opinion held by the hearing officer or the Division on a case-by-case basis without any

    firm standard for uniformity in application or enforcement.

    
    

    Id. at 256.

    
    

18. In certain cases, the agency's proof might be assisted by the application of a permissible inference. For example, the fact-finder is entitled——but of course is not required, for inferences are always permissive——to infer that the licensee failed to satisfy the minimum standards of conduct if his employee's wrongful actions were persistent, flagrant, or carried out in a "practiced manner." Id. at 252-54.

19. A proceeding, such as this one, to suspend, revoke, or impose other discipline upon a professional license is penal in nature. State ex rel. Vining v. Florida Real Estate Commission,

    281 So. 2d 487, 491 (Fla. 1973). Accordingly, to impose discipline, the Division must prove the charges against the licensee by clear and convincing evidence. Department of Banking and Finance, Div. of Securities and Investor Protection v. Osborne Stern & Co., 670 So. 2d 932, 933-34 (Fla. 1996)(citing Ferris v. Turlington, 510 So. 2d 292, 294-95 (Fla. 1987)); Nair v. Department of Business & Professional Regulation, 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

20. Regarding the standard of proof, in Slomowitz v.

    
    

    Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court of Appeal, Fourth District, canvassed the cases to develop a

    "workable definition of clear and convincing evidence" and found that of necessity such a definition would need to contain "both qualitative and quantitative standards." The court held that:

    clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Id. The Florida Supreme Court later adopted the fourth district's description of the clear and convincing evidence standard of proof. Inquiry Concerning a Judge No. 93-62, 645 So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal also has followed the Slomowitz test, adding the interpretive comment that "[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp., Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev.

    denied, 599 So. 2d 1279 (Fla. 1992)(citation omitted).

    
    

21. As found above, the evidence establishes that Continental's employee, Baig, committed the crime of selling drug paraphernalia, which offense is defined in Section 893.147(2), Florida Statutes, as follows:

    It is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used:

    
    

    (a) To plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal a controlled substance in violation of this act[.]

    
    

22. The term "drug paraphernalia" is defined in Section 893.145, Florida Statutes, which provides in relevant part as follows:

    The term "drug paraphernalia" means all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, transporting, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter or s.

    877.111. Drug paraphernalia is deemed to be contraband which shall be subject to civil forfeiture. The term includes, but is not limited to:

    
    

    * * *

    
    

    (12) Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing cannabis, cocaine, hashish, hashish oil, or nitrous oxide into the human body, such as:

    
    

    (a) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes, with or without

    screens, permanent screens, hashish heads, or punctured metal bowls. . . .

    
    

23. As further found, however, the undersigned has determined, as a matter of fact, that the evidence presented failed to prove, clearly and convincingly, that Continental knew that Baig would violate the law, intended that he do so, failed to take reasonable steps to prevent such wrongdoing, fostered or condoned the illegal sale, or was in any way personally culpable for Baig's misconduct.

24. In making these ultimate factual determinations, the undersigned took note that the Division presented no proof of minimum standards of conduct——either by adopted rules, communicated agency policy, or expert testimony——against which the licensee's alleged misconduct could be judged. Instead, the Division proved merely that one of the licensee's employee's had made one illegal sale on the licensed premises; this is not a legally sufficient predicate for imposing personal responsibility for the unlawful transaction on the licensee.

25. The undersigned also considered whether it would be reasonable to infer that Continental's own misconduct contributed to the violation at issue; he decided, as a matter of fact, that it would not be. This is because, first, the items that were sold in this instance are legal goods having legitimate uses other than as components of makeshift crack

    pipes. Indeed, the undersigned could find the subject transaction illegal only because, at the time of purchase, the undercover agent announced his intent to "smoke crack" in the "pipe" Baig was selling, which fact (in the absence of rebuttal evidence) persuaded the undersigned to infer that Baig should have known that the items in question would be used to ingest or inhale a controlled substance.iii In short, there is no reasonable inference of wrongdoing to be drawn from the fact that Chore Boy® pot scrubbers and "love roses" were available for sale on the licensed premises.

26. Second, as far as the evidence in this case reveals, the sale at issue was an isolated occurrenceiv; there is simply no proof whatsoever that Baig or any other employee of Continental flagrantly, persistently, or skillfully (in a "practiced" manner) delivered drug paraphernalia on the licensed premises. As a result, the undersigned exercised his exclusive prerogative as the trier of fact to reject the inferences that the law might permit (but does not require) him to draw regarding the licensee's complicity in the wrongdoing.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order finding Continental not guilty of the instant charge.

DONE AND ENTERED this 17th day of October, 2007, in Tallahassee, Leon County, Florida.

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.stae.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2007.

ENDNOTES

i/ The dialogue set forth herein is based primarily on the videotape of the transaction, which the undersigned has watched a number of times.

ii/ The undersigned hastens to add that the evidence in this regard was completely one-sided. This is because Baig, who remained in criminal jeopardy at the time of the final hearing in this case, did not testify, which means that the undersigned has no evidence concerning Baig's theory of innocence. It is certainly possible, for any number of conceivable reasons, see Subuh v. State, 732 So. 2d 40, 42 (Fla. 2d DCA 1999)(reversing conviction of store clerk on charge of selling drug paraphernalia where defendant denied knowing what buyer had meant in referring to "glass pipes"), that Baig did not, in fact, have the requisite intent to establish a violation under § 893.147(2), Fla. Stat. None of these reasons was proved in this case, however, and thus there is no evidence at hand rebutting the Division's circumstantial evidence of Baig's guilt.

iii/ Ironically, though, Thompson's statements to Baig regarding his intent to smoke crack strike the undersigned as the sort of

disclosures-against-interest that a real crack user would be unlikely to make. Why would anyone admit to a stranger (the clerk) that he is in possession of a controlled substance ("my crack"), which he plans unlawfully to ingest? The apparent implausibility of someone's making such a gratuitous admission of serious criminal behavior is compounded by the fact that just by announcing the intended illicit use of the otherwise legal merchandise, the purchaser turns a lawful transaction into a criminal one, not only for the clerk (delivery of drug paraphernalia) but also for himself (possession of drug paraphernalia, see § 893.147(1), Fla. Stat.) The undersigned actually gave some thought as to whether Thompson's statements were so unbelievable that Baig likely dismissed or ignored them as, rather than credible manifestations of intent, simple-minded chitchat unworthy of serious concern. Ultimately, however, because no evidence was presented concerning what Baig made of Thompson's statements regarding how he would use his purchases (assuming Baig heard and understood them), the undersigned decided, based on the evidence in the record, that Baig reasonably should have accepted Thompson's statements at face value, however irrational they might have seemed.

iv/ The undersigned has not forgotten that the sting was arranged in response to complaints that the sheriff's office had received about alleged sales of paraphernalia at Continental's convenience store. No evidence concerning the substance of these complaints was offered, however, and even if it had been, such proof (almost certainly) would have been uncorroborated hearsay if offered to establish that such illegal sales had occurred. To be clear, there is no evidence in the record of any illegal sales other than the one involving Baig that occurred on December 12, 2006. Moreover, there is no evidence of any kind tending to show that the licensee knew or should have known about the complaints concerning suspicious sales at the licensed premises.

COPIES FURNISHED:

Michael J. Wheeler, Esquire Department of Business and Professional Regulation

Northwood Centre, Suite 6 1940 North Monroe Street

Tallahassee, Florida 32399-1020

Gul Ahmed Moti

Moti's Inc., d/b/a Continental Market 3980-90 North Andrews Avenue

Oakland Park, Florida 33309

Steven M. Hougland, Ph.D., Director Division of Alcoholic Beverages and Tobacco Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Lucynski, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 07-000780

Orders for Case No: 07-000780