STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 80-047

) RICHARD and ELLA MORGAN, d/b/a ) BLACK CAT LOUNGE, )

)

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 M. Watson, Jr., Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Martin Moncarz, Esquire

200 Southeast 6th Street, Suite 204 Fort Lauderdale, Florida 33301

By notice to show cause, petitioner alleged that "[o]n or about August 1, 1979, . . . RICHARD MORGAN, did sell or deliver a controlled substance, to wit: heroin, contrary to F.S. 893.13(1)(a)1, within F.S. 561.29(1)(a)"; that "[o]n or about August 10, 1979, . . . RICHARD MORGAN, did have in [his] possession with intent to sell, a controlled substance, to wit: heroin, contrary to F.S. 893.13 (1)(a)1, within F.S. 561.29(1)(a)"; that "[o]n or about August 10, 1979, . . . RICHARD MORGAN, did have in [his] possession with intent to sell a controlled substance, to wit: cocaine, contrary to F.S. 893.13(1)(a)1, within F.S. 561.29(1)(a)"; that "[o]n or about August 10, 1979,

. . RICHARD MORGAN, did have in [his] possession) with intent to sell a controlled substance, to wit: cannabis, contrary to F.S. 893.13(1)(a)2, within

1. 561.29(1)(a)"; that "[o]n or about August 10, 1979, . . . [respondents] did keep or maintain a place where controlled substances are kept or sold unlawfully, contrary to F.S. 893.13(2)(a)5, within F.S. 561.29(1)(a)"; that "[o]n or about August 10, 1979, . RICHARD MORGAN, did possess and use unlawfully the property of another, to wit: a firearm belonging to RANION OSMOND, contrary to F.S. 812.014(2)(b)3, within F.S. 561.29(a)(a) [sic]"; that "[own or about August 10, 1979, . [respondents maintained] a public nuisance as defined by F.S. 823.10" on the licensed premises.

   
   

   The parties stipulated that, on August 1, and August 10, 1979, respondents were licensed by petitioner and doing business under license No. 16-2516.

   FINDINGS OF FACT

   
   

   1. On August 1, 1979, Deputy Alvin Pollock of the Broward County Sheriff's Department went to the Black Cat Lounge with an informant who had furnished information previously that had led to the arrest of six individuals. Before leaving for the Black Cat Lounge, Deputy Pollock searched the informant and determined that he had no money or contraband on his person. Deputy Pollock then gave him some money. At the Black Cat Lounge, Deputy Pollock waited outside in the car while the informant went inside. After the informant returned, Deputy Pollock drove him to another location and searched him. He found no money but did find a foil packet containing heroin.

      
      

   2. Deputy Pollock subsequently executed an affidavit and applied for a search warrant which was issued on August 10, 1979. Petitioner's exhibit No. 1. On the night of August 10, 1979, Deputy Pollock., Sgt. Robert Dietrich of the Fort Lauderdale Police Department, Deputy Dennis Robert Gavalier of the Broward County Sheriff's Department, petitioner's Sgt. Russell R. Smith, Beverage Officer David William Shomers and more than a half dozen other law enforcement officers assembled at the Black Cat Lounge. Deputy Pollock gave the same informant who had accompanied him on August 1, 1979, a marked ten dollar bill with which to effect a second "controlled buy." After the informant had completed this mission, the law enforcement officers prepared to enter the bar. Deputy Pollock called out, "Deputy Sheriff. I have a search warrant for the promises. Everybody freeze." He then led a group of law enforcement officers through one door of the Black Cat Lounge while another group entered through another door. Respondent Richard Morgan was thrown to the floor and his hands were handcuffed behind him. "For safety reasons," more than ten patrons on the premises received similar treatment.

      
      

   3. On top of a ledge formed by a false ceiling over two bathrooms inside the Black Cat Lounge, law enforcement officers found a light brown purse, a dark brown purse, and a black pouch with the word "Kawasaki" printed on it. Inside the pouch were nine manila envelopes containing marijuana. Inside the light brown purse were thirteen foil packets containing heroin. Inside the dark brown purse were twenty-eight foil packets containing cocaine. Petitioner's Sgt. Russell R. Smith discovered a single marijuana cigarette on the floor near the west wall of the establishment. The cigarette was unlighted and unburnt.

      
      

   4. Detective Sgt. Robert Dietrich discovered a Smith & Wesson .38 revolver under a baseball cap on a shelf behind the bar. Although respondent Richard Morgan told Sgt. Dietrich that the gun belonged to him, he testified at the hearing that he had taken the pistol as collateral for repayment of a loan of $10.00 he had made earlier on August 10, 1979, to a man named George, whom he knew well but has not seen since. The gun belonged to Ranion Osmond and was stolen from Mr. Osmond's residence at 704 Northwest 20th Avenue, Fort Lauderdale, on or before April 14, 1979. Petitioner's exhibit No. 2.

      
      

   5. Before petitioner shut it down, tide Black Cat Lounge was the meeting place for a motorcycle club whose members numbered 32 on the Saturday the search warrant was executed. The club had last met on the preceding Wednesday. All members of the club had access to a storage space near the bar in the northeast corner of the Black Cat Lounge, which contained a stove and a refrigerator. In this storage space, the officers executing the search warrant found two books of financial records. In one book the members of the motorcycle club were listed opposite the amounts of dues they had paid. One of the books held about $150.00 in five, ten and twenty dollar bills. The searching officers found a bag of

      twenty dollar bills inside the oven. They also discovered an open bag of marijuana resting on a horizontal board in the wall.

      
      

   6. A search of respondent Richard Morgan yielded some $400.00 in cash, including the marked ten dollar bill which had entered the premises in the custody of the informant. Respondent Richard Morgan's left thumb print was discovered on a foil packet found in one of the purses. The packet contained heroin or cocaine; it was not clear from the evidence which. Respondent Richard Morgan used aluminum foil to wrap the fish sandwiches he sold to bar patrons. Mr. Morgan owns a Kawasaki motorcycle which was parked inside the Black Cat Lounge on the night of August 10, 1979.

      
      

   7. Respondent Ella Morgan left the running of the Black Cat Lounge to her husband and spent less than an hour a week on the premises, on the average.

      
      

      CONCLUSIONS OF LAW

      
      

   8. Counsel indicated that criminal proceedings against Mr. Morgan arising out of events in August of 1979 concluded with the dismissal of all charges. This circumstance is irrelevant in the present proceeding, however, because petitioner is authorized to take disciplinary action against a licensee who permits violations of state law on licensed premises or who breaks the law himself "whether or not the licensee . . . [has] been convicted in any criminal court." Section 561.29(1)(a), Florida Statutes (1979)

      
      

   9. Petitioner did not establish by competent evidence that Mr. Morgan sold heroin to the confidential informant on August 1, 1979. Deputy Pollock's testimony was the only evidence offered on this specification. No witness to the alleged transaction testified.

      
      

   10. In the second paragraph of the notice to show cause, petitioner alleges that respondent possessed heroin with the intent to sell it, on August 10, 1979. Heroin was found that night, wrapped in foil packets, in a purse hidden on the premises. Since the evidence did not exclude "the possibility of others having access to the place where the drugs were hidden," Thompson v. State, 375 So.2d 633 (Fla. 4th DCA 1979) , "it may not be inferred that [respondent] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference." Evans v. United States, 357 F.2d 121, 128 (9th Cir. 1958) quoted with approval in Spataro v. State, 179 So.2d 873, 877 (Fla. 2d DCA 1965)

       
       

   11. Mr. Morgan's thumbprint on one of the packets of heroin is just the sort of "incriminating circumstance" necessary to prove constructive possession notwithstanding shared access. It was not clear from the evidence whether the foil packet on which Richard Morgan's thumbprint was discovered contained heroin or whether it contained cocaine. The purse containing heroin packets and the purse containing cocaine packets were hidden in the same place, however; these drugs and the pouch containing marijuana-filled envelopes were all part of the same cache. At least in license revocation proceedings, where the standard of proof is less than the criminal "beyond a reasonable doubt" standard, see Cans

       v. Department of Profess tonal and Occupational Regulation, No. 79-186 (3d DCA Fla.; April 29, 1980)(petition for rehearing pending); Reid v. Florida Real Estate Comm'n, 188 So.2d 846 (2d DCA Fla. 1966) , tide thumbprint suffices to prove constructive possession by Mr. Morgan of all the drugs hidden on the ledge over the bathroom.

   12. In paragraph two of the notice to show cause, petitioner alleges possession of heroin with intent to sell it, in violation of Section 893.13(1)(a)1, Florida Statutes (1979) The packaging of the herein and Deputy Pollock's testimony about "controlled buys' proved an intention to sell the heroin.

       
       

   13. In paragraphs three and four of the notice to show cause, petitioner alleges that respondent possessed cocaine and cannabis with the intent to sell on August 10, 1979. Although the evidence showed that Mr. Morgan had constructive possession of these drugs, it was insufficient to establish an intent to sell them, despite their packaging.

       
       

   14. The evidence showed that Mr. Morgan kept controlled substances in the Black Cat Lounge in violation of Sections 893.13(2)(a)5 and 823.10, Florida Statutes (1979), as alleged in paragraphs five and seven of the notice to show cause.

       
       

   15. Petitioner proved that Mr. Morgan had possession of recently stolen property but failed to prove that he was guilty of the theft itself, in violation of Section 812.014 (2)(b)5, Florida Statutes (1979), as alleged in paragraph six of the notice to show cause.

       
       

   16. Nothing in the evidence suggested any participation in or knowledge of criminal acts by Mrs. Morgan, but her (husband and) partner's misconduct is attributable in law to the partnership which holds the license.

       
       

   17. Respondents' counsel moved to suppress all evidence obtained as a result of the search on August 10, 1979, on the grounds that there was no probable cause for the search. A motion to suppress may be appropriate in administrative proceedings, One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965); Ray v. Pottorf v. Howard W. Adams, No. 79-958 (DOAH, Order granting motion to suppress; Nov. 2, 1979) , but the motion was denied in the present case because respondents did not meet their burden to show a lack of probable cause for the search made pursuant to warrant on August 10, 1979. State v. Middleton, 302 So.2d 144 (1st DCA Fla. 1974).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner revoke respondents' license.

DONE and ENTERED this 7th 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 M. Watson, Jr., Esquire 725 South Bronough Street Tallahassee, Florida 32301

Martin Moncarz, Esquire

200 S.E. 6th Street Suite 204

Fort Lauderdale, Florida 33301

Docket for Case No: 80-000047

Orders for Case No: 80-000047