STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DIVISION OF ) BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1924

)

JOSEPH HILTON SMITH, t/a )

STARLIGHT CLUB, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on June 30, 1977 in Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles T. Collett, Esquire and

Richard Gentry, Esquire Staff Attorneys Division of Beverage Johns Building

725 South Bronough Street Tallahassee, Florida 32304

For Respondent: Joseph H. Smith,

Route 5, Box 373-C Tallahassee, Florida 32301

By Notice to Show Cause filed May 10, 1977 the Division of Beverage, Petitioner, seeks to assess a civil penalty against or to suspend or revoke the beverage license issued to Joseph Hilton Smith, Respondent. As grounds therefor it is alleged that, on or about March 3, 1976, Respondent and/or his agent Hugh Lee Ott kept or maintained a place where controlled substances are sold; and that, on or about March 3, 1976, Respondent and/or his agent Hugh Lee Ott possessed in excess of 5 grams of cannabis while in the scope of employment.

The parties stipulated that at all times here involved Smith held license 47-52 which is now lapsed. Thereafter two witnesses were called by Petitioner and Respondent testified in his own behalf.

FINDINGS OF FACT

1. On March 3, 1976 Leon County Deputy Sheriffs armed with a search warrant and accompanied by a beverage agent visited the Starlight Club to search for marijuana. The beverage agent did not enter the premises.

2. When a search of the Starlight Club failed to disclose any marijuana the mobile home parked behind the Starlight Club was searched and therein more than 5 grams of cannabis was found.

   
   

3. The mobile home is owned by Respondent Smith, but was leased to Hugh Lee Ott who occupied the mobile home as his residence. Ott was in the employ of Respondent as manager of the Starlight Club at the time of the alleged offense.

   
   

4. Ott was arrested and subsequently tried and convicted of possession of cannabis in an amount greater than 5 grams.

   
   

   CONCLUSIONS OF LAW

   
   

5. Section 561.29(1)(a) F.S. provides:

   
   

   "The Division of Beverage is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, where it is determined or found by the division upon sufficient cause appearing of:

   1. Violation by the licensee, 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 the United States, or violation of any municipal or county regula- tion in 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."

      
      

6. No evidence was produced that the mobile home was appurtenant to the licensed premises or that any cannabis was found on the licensed premises. Likewise no evidence was produced that any sale of cannabis was made. Accordingly the allegations in the Notice to Show Cause that Respondent maintained or kept a place where controlled substances are sold is unsupported by any evidence and must fall.

   
   

7. With respect to the allegation that Respondent or his agent possessed on the licensed premises cannabis in an amount exceeding 5 grams the proof is that the cannabis was found in the mobile home occupied by Ott. Ott leased the mobile home and exercised full control over the dwelling. No evidence was presented that Respondent was in any way involved in Ott's possession of cannabis or of anything else Ott may have decided to bring into his residence.

   
   

8. The fact that Ott was employed as operator of the Starlight Club when the marijuana was found in Ott's mobile home does not show that Ott's possession of marijuana was in the scope of his employment as operator of the Starlight Club.

   
   

9. The fact that the mobile home was close to the Starlight Club would undoubtedly make it easier for Ott to sell marijuana from his residence while he was engaged as operator of the Star light Club. However, no evidence was presented that any cannabis was sold. The simple fact that Ott's residence was

   in the immediate vicinity of the Starlight Club is not sufficient, as a matter of law, to support the conclusion that Ott possessed marijuana while in the scope of his employment as operator of the Starlight Club.

   
   

10. From the foregoing it is concluded that the evidence presented was insufficient to prove that cannabis was sold on the licensed premises or that Respondent's agent, Ott, possessed marijuana within the scope of his employment as operator of the Starlight Club. It is therefore,

RECOMMENDED that the charges be dismissed.

DONE and ENTERED this 22nd day of July, 1977, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Charles T. Collett, Esquire and Richard Gentry, Esquire

Staff Attorneys Division of Beverage Johns Building

725 South Bronough Street Tallahassee, Florida 32304

Joseph H. Smith Route 5, Box 373-C

Tallahassee, Florida 32301

Docket for Case No: 76-001924

Orders for Case No: 76-001924