STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, )

DIVISION OF BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 77-004

)

LONDONAIRE LOUNGE, INC., )

t/a LONDONAIRE LOUNGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on January 20, 1977 at 11:00 a.m. at 1934 Beachway Road, Jacksonville, Florida.

APPEARANCES

For Petitioner: Charles Tunicliff, Esquire

Division of Beverage

Department of Business Regulation The Johns Building

725 Bronough Street

Tallahassee, Florida 32304

For Respondent: H. R. Fallin, Esquire

1239 King Street

Jacksonville, Florida 32204 ISSUES

1. Whether or not on or about January 6, 1976 the Respondent, Londonaire Lounge, Inc., on its licensed premises, did unlawfully have in its possession with the intent to distribute approximately 35 grams of cocaine, a Schedule II controlled substance, listed under Title 21, United States Code, Section 812(c), in violation of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2, thereby violating 561.29, F.S.

   
   

2. Whether or not on or about January 23, 1976, the Respondent, Londonaire Lounge, Inc., licensed under the Beverage Law as a corporation, failed to notify the Division of a change in their corporate officers, within ten (10) days of the election, contrary to Rule 7A-2.07, F.A.C., thereby violating 561.29, F.S.

   
   

3. Whether or not on or about January 22, 1975 the Respondent, Londonaire Lounge, Inc., licensed under the Beverage Laws as a corporation, failed to notify the Division of a change in its corporate officers, within ten (10) days of the election, contrary to Rule 7A-2.07, F.A.C., thereby violating 561.29, F.S.

FINDINGS OF FACT

1. At all times relevant to the Notice to Show Cause, the Respondent, Londonaire Lounge, Inc., was the holder of License No. 26-664, a Series 4-COP license held with the State of Florida, Division of Beverage.

   
   

2. On January 22, 1975, the Respondent, Londonaire Lounge, Inc., licensed under the Beverage Laws as a corporation, had listed Robert Larson as its vice president/secretary in its statement on file with the State of Florida, Division of Beverage. In fact, Robert Larson had served in that capacity from November 27, 1973 to January 28, 1974 and subsequent to that time, Nicholas Balistreri was, in fact, the corporate secretary and had been serving in that capacity for more than ten (10) days subsequent to Robert Larson's removal as vice president/secretary.

   
   

3. On January 23, 1976, the Respondent, Londonaire Lounge, Inc., licensed under the Beverage Laws as a corporation, had listed Robert Larson as its vice president/secretary in its statement on file with the State of Florida, Division of Beverage. In fact, Robert Larson had served in that capacity from November 27, 1973 to January 28, 1974 and subsequent to that time, Nicholas Balistreri was, in fact, the corporate secretary and had been serving in that capacity for more than ten (10) days subsequent to Robert Larson's removal as vice president/secretary.

   
   

4. On or about the evening of January 6, 1976, Nicholas Balistreri, a corporate officer and employee of the Respondent went to the licensed premises at 1553 South Lane Avenue, Jacksonville, Florida about the time of closing. He was in the company of a man names Paul Spencer and both of these individuals were riding in Balistreri's automobile. Spencer and Balistreri entered the licensed premises and Spencer went into the office of the licensed premises and was joined by Balistreri and another individual who was an agent of the United States Drug Enforcement Administration. Spencer had in his possession approximately 35 grams of cocaine, a Schedule II controlled substance listed under Title 21, United States Code, Section 812(c). Spencer removed the cocaine and Balistreri, the agent, and Spencer ingested a quantity of the cocaine. The agent was acquainted with Spencer from some other occasion. After the individuals had ingested the cocaine, Balistreri told the agent and Spencer that no sale of that substance could be made in the licensed premises. Balistreri and Spencer then left with the agent of the Drug Enforcement Administration and returned to Balistreri's apartment in Balistreri's car, at which time Balistreri and Spencer were arrested. Balistreri was subsequently charged and convicted of having in his possession with the intent to distribute the substance, the aforementioned cocaine, a Schedule II controlled substance, listed under Title 21, United States Code, Section 812(c), in violation of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2. He was sentenced to three years confinement for that offense. Subsequent to the arrest of Balistreri, charges were placed against the Respondent, i.e., a Notice to Show Cause was filed against the Respondent corporation. Balistreri remained as an employee of the corporation until after the informal conference with the Division of Beverage and the date of Balistreri's dismissal from the corporation occurred in May, 1976.

   
   

5. The above facts were as stipulated to by the parties.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction in this cause.

   
   

7. It is concluded as a matter of law that on or about January 6, 1976, Nicholas Balistreri, an employee and corporate secretary of the Respondent, Londonaire Lounge, Inc., did on the licensed premises, unlawfully have in his constructive possession with the intent to distribute approximately 35 grams of cocaine, a Schedule II controlled substance, listed under Title 21, United States Code, Section 812(c), in violation of Title 21, United States Code, Section 841(a)(1), and Title 18, United States Code, Section 2, thereby violating 561.29, F.S.

   
   

8. It is concluded as a matter of law that on or about January 23, 1976, Respondent, Londonaire Lounge, Inc., licensed under the Beverage Laws as a corporation, failed to notify the Division of a change in its corporate officers within ten (10) days of the election, contrary to Rule 7A-2.07, F.A.C., thereby violating 561.29, F.S.

   
   

9. It is concluded as a matter of law that on or about January 22, 1975, Respondent, Londonaire Lounge, Inc., licensed under the Beverage Laws as a corporation, failed to notify the Division of a change in its corporate officers within ten (10) days of the election, contrary to Rule 7A-2.07, F.A.C., thereby violating 561.29, F.S.

RECOMMENDATIONS

Based upon the findings of facts and conclusions of law, and in consideration of the aggravating and mitigating factors, and the agreement of the counsel of the Petitioner that the Petitioner does not seek revocation or suspension, it is recommended that the Respondent, Londonaire Lounge, Inc., be fined in the amount of $750.00, against its License No. 26-664, Series 4-COP.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Charles Tunicliff, Esquire Division of Beverage

Department of Business Regulation The Johns Building

725 Bronough Street

Tallahassee, Florida 32304

H. R. Fallin, Esquire 1239 King Street

Jacksonville, Florida 32204

Docket for Case No: 77-000004

Orders for Case No: 77-000004