STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 80-046

) JANET and LEONARD SPIVAK d/b/a ) HEL-LEN'S CULINARY DEN II )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Lauderhill, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on July 22, 1980. The parties were represented by counsel:

APPEARANCES

For Petitioner: James N. Watson, Jr., Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: George S. Yochmowitz, Esquire

Suite 906, Dupont Plaza Center Miami, Florida 33131

By notice to show cause, petitioner alleged that respondents "[o]n or about the 12th day of October, 1979, did unlawfully deliver a controlled substance, to wit: 100 tablets of methaqualone, in violation of F.S. 893.13 (1)(a) , within F.S. 561.29"; and that respondents on the same day "did unlawfully possess a controlled substance, to wit: 1. Capsules (black) of phentermine; 2. 4 - tablets (blue) of diazapam, in violation of F.S.

693.13(1)(a) within F.S. 561.29."

The parties stipulated that respondents were licensed by petitioner on October 12, 1979, having license No. 16-2330.

FINDINGS OF FACT

1. Respondents Janet and Leonard Spivak acquired Hel- Len's Culinary Den II while they were still married, and their joint ownership persisted even after their divorce. Their marriage was dissolved some two or three years before the hearing.

2 During the month of October, 1979, Mr. Spivak was working as an accountant five days a week and helping out at the restaurant on weekends. On October 12, 1979, he was busy at the pizza oven 30 or 40 feet from Janet Spivak when he heard a disturbance and looked up to see Mrs. Spivak being arrested.

She had just sold drugs, including 100 tablets of methaqualone, to an undercover deputy sheriff. Leonard Spivak had had no prior knowledge of his former wife's involvement with illicit drugs.

1. At the time of Mrs. Spivak's arrest, Joseph Williams, the Broward County deputy sheriff to whom Mrs. Spivak sold the drugs, also arrested one Goldsmith, who had arranged the transaction at Williams' behest. Before his conversation with Goldsmith on October 12, 1979, Williams had no reason to suspect that drugs were being sold at Hel-Len's Culinary Den II.

   
   

2. After her arrest, Mrs. Spivak produced all other pills and medications in her possession, upon instructions to do so. Among the pills were black capsules containing phentermine, a stimulant sometimes prescribed for weight loss, and blue diazapam tablets, which are sold under the trade name of Valium. Both of these drugs Mrs. Spivak kept for personal consumption.

   
   

   CONCLUSIONS OF LAW

   
   

3. Petitioner has authority to take disciplinary action against respondents' license upon a showing of "[v]iolation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises . . . of any of the laws of this state . . . whether or not the licensee or . employees, have been convicted in any criminal court Section 561.29(1)(a), Florida Statutes (1979).

   
   

4. In the present case, the evidence established that respondent Janet Spivak unlawfully delivered methaqualone tablets, in violation of Section 893.13(1)(a), Florida Statutes (1979) , as alleged in the first paragraph of the notice to show cause.

   
   

5. Although the evidence showed that Mrs. Spivak had phentermine and diazapam in her possession, petitioner did not prove that Mrs. Spivak possessed either of these drugs "with intent to sell, manufacture, or deliver," Section 893.13(1)(a), Florida Statutes (1979) , them. Petitioner failed, therefore, to establish the violation of Section 893.13(1)(a), Florida Statutes (1979), alleged in the second paragraph of the notice to show cause.

   
   

6. Respondent Leonard Spivak contends that he should not suffer for his former wife's misdeeds. Nothing in the evidence suggested any reason why Mr. Spivak individually should be disciplined or why he would not be eligible for continued licensure individually. It was clear from the evidence that he had no prior knowledge of his partner's criminal activities. But a "partner's misconduct is attributable in law to the partnership which holds the license. Division of Alcoholic Beverages and Tobacco v. Richard and Ella Morgan d/b/a Black Cat Lounge, No. 80-047 (DOAH; Rec. Order entered August 7, 1980) , at p. 6; State of Florida, Division of Alcoholic Beverages and Tobacco v. Marvin and Flossie Jones t/a Marvin's Beer & Wine, No. 79-2111 (DOAH; Rec. Order entered March 26, 1980).

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That petitioner revoke respondents' license.

DONE and ENTERED this 13th day of August, 1980, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

James Watson, Jr., Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

George Yochmowitz, Esquire Suite 906, Dupont Plaza Center Miami, Florida 33131

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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO,

Petitioner,

vs. CASE NO. 80-046

JANET and LEONARD SPIVAK d/b/a HEL-LEN'S CULINARY DEN II,

Respondent.

/

FINAL ORDER

This matter came on for hearing in Lauderhill, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on July 22, 1980. The parties were represented by counsel:

APPEARANCES

For Petitioner: James N. Watson, Jr., Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: George S. Yochmowitz, Esquire

Suite 906, Dupont Plaza Center Miami, Florida 33131

By Notice to Show Cause, petitioner alleged that Respondents "(o)n or about the 12th day of October, 1979, did unlawfully deliver a controlled substance, to wit: 100 tablets of methaqualone, in violation of Florida Statute 893.13(1)(a), within Florida Statute 56l.29; and that Respondents on the same day "did unlawfully possess a controlled substances to wit: 1. Capsules (black) of phentermine; 2. 4 - tablets (blue) of diazapam, in violation of Florida Statute 893.13(1)(a), within Florida Statute 561.29."

The parties stipulate that Respondents were licensed by Petitioner on October 12, 1979, having license No. 16-2330.

FINDINGS OF FACT

1. Respondents Janet and Leonard Spivak acquired Helen's Culinary Den II while they were still married, and their joint ownership persisted even after their divorce. Their marriage was dissolved some two or three years before the hearing.

   
   

2. During the month of October, 1979, Mr. Spivak was working as an accountant five days a week and helping out at the restaurant on weekends. On October 12, 1979, he was busy at the pizza oven 30 or 40 feet from Janet Spivak when he heard a disturbance and looked up to see Mrs. Spivak being arrested.

   She had just sold drugs, including 100 tablets of methaqualone, to an undercover deputy sheriff. Leonard Spivak had had no prior knowledge of his former wife's involvement with illicit drugs.

   
   

3. At the time of Mrs. Spivak's arrest, Joseph Williams, the Broward County deputy sheriff to whom Mrs. Spivak sold the drugs, also arrested one Goldsmith, who had arranged the transaction at Williams' behest. Before his conversation with Goldsmith on October 12, 1979, Williams had no reason to suspect that drugs were being sold at Hen-Len's Culinary Den II

   
   

4. After her arrest, Mrs. Spivak produced all other pills and medications in her possession, upon instructions to do so. Among the pills were black capsules containing phentermine, a stimulant some times prescribed for wright loss, and blue diazapam tablets, which are sold under the trade name of Valium. Both of these drugs Mrs. Spivak kept for personal consumption.

   
   

   CONCLUSIONS OF LAW

   
   

5. Petitioner has authority to take disciplinary action against respondents' license upon a showing of "(v)iolation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises . . . of any of the laws of this state . . . whether or not the licensee or . employees, have been convicted in any criminal court. Section 561.29(1)(a) , Florida Statutes (1979)

6. In the present case, the evidence established that Respondent Janet Spivak unlawfully delivered methaqualone tablets, in violation of Section 893(1)(a), Florida Statutes (1979), as alleged in the first paragraph of the Notice to Show Cause.

   
   

7. Although the evidence showed that Mrs. Spivak had phentermine and diazapam in her possession, Petitioner did not prove that Mrs. Spivak possessed either of these drugs "with intent to sell, manufacture, or deliver, "Section 893.13(1)(a), Florida Statutes (1979), them. Petitioner failed, therefore, to establish the violation of Section 893.13(1)(a), Florida Statutes (1979) , alleged in the second paragraph of the Notice to Show Cause.

   
   

8. Respondent Leonard Spivak contends that he should not suffer for his former wife's misdeeds. Nothing in the evidence suggested any reason why Mr. Spival individually should be disciplined or why he would not be eligible for continued licensure individually. It was clear from the evidence that he had no prior knowledge of his partner's criminal activities. But a "partner's misconduct is attributable in law to the partnership which holds the license." Division of Alcoholic Beverages and Tobacco v. Richard and Ella Morgan d/b/a Black Cat Lounge, No. 80-047 (DOAH; Rec. Order entered August 7, 1980) , at p.6; State, of Florida, Division of Alcoholic Beverages and Tobacco v. Marvin and Flossie Jones t/a Margin's Beer & Wine, No. 79-2111 (DOAH; Rec. Order entered March 26, 1980).

It is, accordingly, ORDERED:

That Respondents beverage license is revoked forthwith.

DONE AND ORDERED this 16th day of September, 1980, in Tallahassee, Florida.

Charles A. Nuzum, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

(904) 488-7891

Copies furnished to:

James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

George Yochmowitz, Esquire Suite 906, Dupont Plaza Center Miami, Florida 33131

Robert T. Benton, II Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

Docket for Case No: 80-000046

Orders for Case No: 80-000046