STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 78-130

) RICK FLORES d/b/a LUCY'S GROCERY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Miami, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on February 21, 1978.

APPEARANCES

For Petitioner: Mr. Francis Bayley, Esquire

725 South Bronough Street Tallahassee, Florida 32304

For Respondent: Appeared propria persona

By notice to show cause, petitioner alleged that respondent Flares, on September 7, 1977, on his "licensed premises . . . did have in his possession

. . . four marijuana cigarettes in violation of Florida Statutes 501.29(1)(b) to wit Florida Statutes 893.13."

FINDINGS OF FACT

1. On September 7, 1977, respondent was behind the counter in Lucy's Grocery attending to requests for potato chips and other snacks from youthful customers crowded against the counter. Robert Young, who sometimes helped out around the store, happened to be in the store at the time, and noticed one Larry Washington leave four cigarettes on the counter. Robert Young told respondent that the cigarettes were on the counter and asked what to do with them. Respondent took them himself and placed them in a drawer behind the counter.

   
   

2. Robert Young was still in the store when Victor E. Sosa, who was employed by respondent as a beverage officer, entered and identified himself to respondent. In the course of inspecting the store, Officer Sosa opened the drawer behind the counter and discovered the four cigarettes. In the same drawer he also found some pink paper and what looked to be marijuana seeds wrapped in tissue paper. Respondent first said that these things were for his personal use. When Robert Young told Officer Sosa about Larry Washington, however, respondent said that the cigarettes had just been left in the store and said that he intended to throw them out but had not gotten around to it.

3. Officer Sosa left Lucy's Grocery with the cigarettes and the seeds. He caused these things to be transmitted to the Dade County Crime Laboratory, where Harry Coleman, a chemist, analyzed them. This analysis revealed that the cigarettes, with a combined weight of 0.8 grams, contained marijuana and that the seeds were marijuana seeds.

   
   

   CONCLUSIONS OF LAW

   
   

4. Petitioner has "full power and authority to revoke or suspend the license of any person," Section 561.29(1), Florida Statutes (1977), or to "impose a civil penalty against a licensee," Section 561.29(4), Florida Statutes (1977), on account of "[v]iolation by the licensee . . . of any laws of this state." Section 561.29(1)(b), Florida Statutes (1977). Possession of marijuana is a violation of Florida law. Section 893.13(f) and (g), Florida Statutes (1977). Accordingly, the evidence established that petitioner has legal grounds for taking action against respondent's license.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner assess a civil penalty against respondent's license in the amount of twenty-five dollars (25.00)

DONE and ENTERED this 17th day of March, 1978, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Mr. Francis Bayley, Esquire The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

Rick Flores

d/b/a Lucy's Grocery 1920 N. W. 95th Street Miami, Florida

================================================================= AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF BUSINESS REGULATION DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO

STATE OF FLORIDA

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

Petitioner,

vs. CASE NO. 78-130

RICK FLORES d/b/a LUCY'S GROCERY,

Respondent.

/

FINAL ORDER

After due notice a hearing in the above-styled cause was held in Miami on February 21, 1978, and the Herring Officer issued a Recommended Order dated March 17, 1978; the Director having considered the Recommended Order approves and adopts the findings of fact and conclusions of law. However, the recommendation for the assessment of a twenty-five dollar ($25.00) civil penalty is so insignificant that it would be useless as a deterrent to this or any other licensee from keeping his licensed premises free of contraband. It is considered that this recommended civil penalty is substantially below that assessed for similar violations on a statewide basis.

ORDERED:

That the recommended civil penalty of twenty-five dollars ($25.00) is suspended.

DONE AND ORDERED this 8th day of May, 1978.

CHARLES A. NUZUM, DIRECTOR

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32304

Pursuant to the Department of Business Regulation Appellate Rules, you have the right to appeal this Order to the Board of Business Regulation by Filing Notice of Appeal with the Executive Director, Department of Business Regulation, Johns Building, Tallahassee, Florida, within 20 days from the date of this Order.

Pursuant to Rule 7-1.22, Department of Business Regulation Appellate Rules, you must enclose a check or money order made payable to the Department of

Business Regulation for $25.00 as a filing fee. A copy of the Appellate Rules is attached.

CHARLES A. NUZUM, DIRECTOR

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32304

Copies to:

Rick Flores

d/b/a Lucy's Grocery 1920 N.W. 95th Street. Miami, Florida

Robert T. Benton, II Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304

Francis Bayley Staff Attorney

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304

Docket for Case No: 78-000130

Orders for Case No: 78-000130