STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1028

) JOHNNY L. and ROBERT J. MIMS, ) t/a LIBRA LOUNGE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on September 3, 1980.

APPEARANCES

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

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Appeared on their own behalf.

By notice to show cause petitioner alleged that "[on] or about January 8, 1980, . . .[respondents] did employ on [the] licensed premises, a person, to wit: Carlos Roncelli Mims, under the age of18 years of age, contrary to F.S.

1. . .[and that] Carlos Roncelli Mims, did have in his possession, custody, or control, on [the] licensed premises certain controlled substances, to wit: marijuana, and phencyclidine (PCP), contrary to F.S. 893.13 and 561.29."

   
   

   FINDINGS OF FACT

   
   

   1. On January 8, 1980, Johnny L. and Robert J. Mims held license No. 27-75 2COP for the Libra Lounge at 2409 Palafox Street in Pensacola, Florida.

      
      

   2. Larry Stevens, a beverage officer in petitioner's employ, visited the Libra Lounge in order to make a routine inspection. Accompanying him was James Loman, a deputy sheriff in the Escambia County Sheriff's Department. They arrived about half past one o'clock on the afternoon of January 8, 1980, and found the door standing open. Inside, Carlos Roncelli Mims was standing behind the bar. Carlos Roncelli Mims had spent the night of January 7, 1980, at the lounge, and had been there when Johnny L. Mims closed the place up. Also on the premises were a man and woman drinking beer, who left when Officer Stevens and Deputy Loman began questioning Carlos. Officer Stevens asked for the owner or manager and Carlos Roncelli Mims telephoned Robert Mims, who arrived about 15 minutes later.

   3. In the interim, Officer Stevens inspected the premises, and discovered a shallow cardboard box to the left of the cash register. The box was open and in plain sight. It was accessible to someone working the bar but was not accessible to the public. In the box was a clear bag of what appeared to be marijuana, a number of black capsules, and a folded piece of tinfoil, containing some white powder. In a separate room housing the pool table, there was a marijuana cigarette butt. Carlos was arrested for possession of narcotics.

      When Carlos left the premises, he took money with him. Later, a chemist analyzed the apparent marijuana and confirmed that the substance was cannabis. He also analyzed the contents of the foil packet and established that the powder was a small quantity of phencyclidine.

      
      

   4. Carlos Roncelli Mims, a nephew of the respondents, was born on March 5, 1962. He is employed by the Pensacola Port Authority. He had his uncles' permission to sleep on the premises of the Libra Lounge, in exchange for cleaning up and doing other chores. Carlos was never paid any money for this work. He was authorized to call the police if somebody should break in. His uncles did not authorize him to open the business himself at any time, nor was he authorized to serve beverages or handle money.

      
      

      CONCLUSIONS OF LAW

      
      

   5. With exceptions not pertinent here, licensed vendors like respondents are forbidden "to employ any person under 18 years of age." Section 562.13(1), Florida Statutes (1979). Although the evidence showed that Carlos Roncelli Mims acted beyond his authority in opening the bar on January 8, 1980, it was clear from the evidence that he was employed by his uncles to do various other chores in exchange for lodging on the premises. This constitutes a violation of Section 562.13, Florida Statutes (1979).

      
      

   6. Petitioner also established that Carlos Roncelli Mims was in possession of marijuana and phencyclidine on respondents' premises on January 8, 1980. But there is no basis in the evidence, as petitioner's counsel conceded at the hearing, for imputing to the uncles knowledge of or responsibility for the nephew's lawbreaking. See Taylor v. State Beverage Department, 194 So.2d 321 (Fla. 2d DCA 1967); Cohen v. Schott, 48 So. 154 (Fla. 1950); Woodberry v. State Beverage Department, 219 So.2d 47 (Fla. 1st DCA 1969).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner assess a civil penalty against respondents' license in the amount of One Hundred Dollars ($100).

DONE AND ENTERED this 2d day of October, 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:

Johnny L. and Robert J. Mims t/a Libra Lounge

2409 Palafox Street

Pensacola, Florida 32501

James N. Watson, Jr., Esquire 725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 80-001028

Orders for Case No: 80-001028