STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 81-1004
)
M.S.B. LOUNGES, INC., d/b/a ) BIRD'S NEST LOUNGE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, held a public hearing in the above matter on April 20, 1981, in Miami, Florida.
APPEARANCES
For Petitioner: Daniel C. Brown, Esquire
725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Seymour Chadroff, Esquire
and Lane S. Abraham, Esquire
200 Southeast 1st Street, Suite 800 Miami, Florida 33131
BACKGROUND
By Notice to Show Cause dated February 9, 1981, the Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, required Respondent, M.S.B. Lounges, Inc., d/b/a Bird's Nest Lounge, to show cause why its alcoholic beverage license should not be revoked or suspended or why a civil penalty should not be imposed for various violations of the Florida Statutes.
Specifically, the Petitioner has charged that: (1) Respondent at its licensed premises on or about January 13, 1981, "... did unlawfully sell and/or deliver a controlled substance, to wit: methaqualone (quaaludes) to (a) beverage officer
. . . in violation of Section 803.13 and 561.29 of the Florida Statutes"; (2) Respondent at its licensed premises on or about January 17, 1081, "... did unlawfully sell and/or deliver a controlled substance, to wit: cannabis, to (a) beverage officer...in violation of Section 893.13 and 561.29 of the Florida Statutes"; (3) Respondent at its licensed premises on or about January 21, 1981, "...did unlawfully sell and/or deliver a controlled substance to wit: methaqualone (quaaludes) to (a) beverage officer. in violation of Section
893.13 and 561.29 of the Florida Statutes"; (4) Respondent between January 13 and January 21, 1981, "did maintain a place, to wit: (its) licensed premises...which is resorted to by persons using controlled substances for the purpose of using these controlled substances, to wit: cannabis and methaqualone
(quaaludes) as this place is used for keeping or selling them in violation of FS 893.13(1)(2)(a)(c) within FS 561.29(1)(a)"; and (5) Respondent between January
13 and 21, 1981, did keep or maintain a public nuisance on (its) licensed premises, to wit: maintaining a building or place which is visited by persons for the purpose of unlawfully using substances controlled under Chapter 893 ... or which is used for the illegal keeping, selling, or delivering of same, contrary to FS 823.10 and FS 561.29(1)(d)
Respondent disputed the allegations of fact contained in the Notice to Show Cause and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The matter was transferred to the Division of Administrative Hearings on April 8, 1981, with a request that a Hearing Officer be assigned to conduct such a hearing. My Notice of Hearing dated April 9, 1981, the final hearing was scheduled for April 20, 1981, in Miami, Florida. Both parties have waived the minimum 14-days notice required by Section 120.57(1)(b)2, Florida Statutes.
At the final hearing petitioner called Patrick M. Roberts as its witness and offered Petitioner's Exhibits 1-3, each of which was received into evidence. Respondent called Robert R. Jones, William J. Miller and Paul Moore as its witnesses and offered Respondent's Exhibits 1 and 2, both of which were received into evidence.
Respondent has also filed a Motion to Disqualify wherein it seeks to remove Charles Nuzum, Director of the Division of Alcoholic Beverages and Tobacco, from further participation in this proceeding by virtue of his entry of an emergency order prior to the final hearing in this case. Because the matters raised in the Motion are outside the jurisdiction of the Division of Administrative Hearings, the Motion is forwarded to the Petitioner with this Recommended Order for appropriate disposition.
The transcript of hearing was filed on May 14, 1981. Proposed findings of fact and conclusions of law were filed by Petitioner and Respondent on May 20 and May 22, 1981, respectively, and have been considered by the undersigned in the preparation of this Order. Proposed findings of fact not included in this Recommended Order were not considered relevant to the issues, were not supported by competent and substantial evidence, or were considered immaterial to the results reached.
The issue herein is whether Respondent's alcoholic beverage license should be revoked or suspended, or whether a civil penalty should be imposed for the alleged violations set forth in the Notice to Show Cause.
Based upon a review of all the evidence, the following facts are determined:
FINDINGS OF FACT
Respondent, M.S.B. Lounges, Inc., d/b/a Bird's Nest Lounge, is a liquor licensee and holder of License 23-2365 (4-COP) issued by Petitioner, Division of Alcoholic Beverages and Tobacco. It is located at 19017 Southwest 40th Street, Miami, Florida.
At approximately 11:00 p.m., on or about January 13, 1981, Beverage Officers Patrick M. Roberts and Robert R. Jones entered the licensed premises of Respondent in an undercover capacity. Their purpose was to ascertain whether controlled substances could be obtained from employees of the licensee. The visit was prompted by complaints received by the Petitioner's Miami District
Office that narcotics were being sold and used on the licensed premises. There were approximately 15 to 20 patrons present in the lounge that evening during the visit of Roberts and Jones. The patrons were seated either at the bar or tables around the dance floor, where from 3 to 5 girls performed dances for the customers. A white female, Betty Lou Stamm, was the on-duty bartender. Upon being seated, and after ordering drinks, Roberts initiated a conversation with Stamm and asked her if it was possible to obtain a "lude" (methaqualone). She advised him that the person whom she generally obtained ludes from had just left the premises, but that he might return later on that evening. The officers also engaged in a conversation with a white female dancer identified as B.J. They attempted to purchase quaaludes from her, but were unsuccessful. At approximately 11:58 p.m. that evening, while preparing to depart the premises, Stamm reached across the bar with a closed hand and dropped two tablets into Roberts' hand. At that time, the manager of the lounge, Paul Moore, was behind the bar assisting Stamm in serving customers and a number of patrons were seated close by. The tablets given to Roberts were later established to be a controlled substance, methaqualone (Petitioner's Exhibit 1)
At approximately 12:30 a.m., on or about January 17, 1981, Beverage Officers Roberts and Jones again visited the licensed premises of the Bird's Nest Lounge. Upon entering the premises, they seated themselves at the bar and remained there for about an hour and a half. During this time they asked Betty Lou Stamm, the on-duty bartender, if she could obtain some quaaludes. She stated that because her "source" was not on the premises, she could not. B. J., a dancer who was working that night, approached them at 2:00 a.m. and asked if they had any marijuana. Roberts responded he did not and asked if she had any.
B. J. told them if "they would just sit tight she would take care of (them)." The officers then observed B. J. approach 5 or 6 other patrons seated at the bar and begin casual conversations with then. One of these patrons, a white male, produced a plastic bag which appeared to contain marijuana and placed a handful of the substance onto a napkin which B. J. was holding. B. J. then went into the ladies restroom for approximately 5 minutes, returned to the bar, handed Roberts a napkin, and stated "here is enough for a couple of joints." Roberts opened the napkin on the bar and observed what appeared to be marijuana. A subsequent laboratory analysis established that the substance was indeed .9 gram of marijuana (Petitioner's Exhibit 2). When the delivery occurred, Stamm and Moore were working the bar, and a number of patrons were seated close by.
At approximately 10:00 p.m. on or about January 21, 1981, Officers Roberts and Jones entered the licensed premises of the Respondent and seated themselves at the bar. After ordering a drink, they observed Betty Lou Stamm playing a game machine in the corner of the bar. Betty was not on duty that evening, having completed her shift at 8:00 p.m. Roberts approached her, and during the course of the conversation asked if she had cocaine or marijuana. She replied she did not. He then asked if she had any "ludes" (methaqualone) . Betty told him to wait, and Roberts returned to the bar. There he observed Betty approach and engage in a conversation with an unidentified white female who had been dancing earlier in the evening. Betty returned to Roberts and stated she had two ludes for $6. After Roberts paid her $6, Betty carried the money to the white female who handed Betty an unknown substance. Betty then
motioned Roberts to come to a phone booth located at the rear of the bar. There she handed Roberts two tablets which were subsequently established by laboratory analysis to be methaqualone (Petitioner's Exhibit 3)
Mr. William J. Miller is the owner of the Bird's Nest Lounge. He does not actively work in the lounge but does assist in cleaning up the premises each morning. His wife works the day shift on occasion when he runs short of help. Miller occasionally visits the premises in the evenings, but was not present when the transactions occurred, nor was he personally cognizant of the illegal drug transactions occurring on the licensed premises. Although he has outside interests, Miller considers the lounge to be his "primary business". He employs a full-time manager, Paul Moore, who comes on duty each evening at 8:00 p.m. A "House Policy for Dancers at Bird's Nest Lounge" has been posted on the dancers' dressing room door since 1976. This "Policy" enumerates prohibited practices by dancers and provides, inter alia, that "no excessive drinking or taking of drugs will be permitted while at work. (This violation will cause for (sic) immediate dismissal)." (Respondent's Exhibit 2). Brenda Johnson (known as B.J.) was advised of this regulation when she was hired and signed a written agreement whereby she agreed to read and conform to the House Policy (Respondent's Exhibit 1). Other dancers are also required to do the same. In addition, the regular employees, including the manager, are orally advised about the rules relating to narcotics. If an employee or dancer is caught "participating in drugs", Miller's policy is to impose a monetary fine on the first occasion and to dismiss the employee or dancer for any subsequent transgression. It is also the policy of the lounge to request any patron found using narcotics to leave the premises.
Betty Lou Stamm worked at the Bird's Nest Lounge as a bartender for about 3 months. She was fired shortly after the events in question occurred.
B. J., a dancer, was also fired immediately after her participation in the transactions was discovered.
The Respondent has operated his lounge since 1975 or 1976. Other than a soliciting violation in 1976, there have been no other beverage violations by the licensee. At no time while on the licensed premises did the beverage agents see anyone, patron or employee, using any suspected narcotic nor did they ever smell the aroma of marijuana in the air.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Section 120.57(1), Florida Statutes.
Section 561.29(1), Florida Statutes, enumerates the grounds upon which the Division may revoke or suspend the license of any person holding a license under the Beverage Law. As is pertinent here, they include:
(1)(a) Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises...of any of the laws of this state...
(1)(c) Maintaining a nuisance on the licensed premises.
Section 893.13(1)(a), Florida Statutes, makes it "unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance." "Cannabis" or "marijuana", and "methaqualones" are defined as controlled substances in Sections 893.03 (1)(c)3 and 893.03(2)(c)5, Florida Statutes. The sale, manufacture or delivery of
marijuana or methaqualones are prohibited acts whose penalties are set forth in Section 893.13, supra.
Section 823.10, Florida Statutes, provides as follows:
Any store, shop...building... or any place whatever, which is visited by persons for the purpose of unlawfully using any sub- stance controlled under chapter 893 or
any drugs as described in chapter 500, or which is used for the illegal keeping, selling, or deliveries of the same, shall be deemed a public nuisance. No person shall keep or maintain such public
nuisance or aid and abet another in keeping or maintaining such public nuisance.
Counts 1 through 3 of the Notice to Show Cause involve alleged illegal sales or deliveries of controlled substances on the licensed promises of Respondent. The record clearly establishes that: (a) the delivery of two methaqualone tablets without compensation from Batty Lou Stamm to Officer Roberts occurred on January 13, 1981, (b) the delivery without compensation of
.9 gram of marijuana from Brenda Johnson (B.J.) to Officer Roberts occurred on January 17, 1981, and (c) the sale of two methaqualone tablets for $6.00 from Betty Lou Stamm to Officer Roberts occurred on January 21, 1981. On each occasion, the transaction took place on the licensed premises of Respondent (see Section 561.01(11), Florida Statutes) and involved his employee or agent. It is immaterial that only one of the three transactions involved an exchange of compensation, for the law does not require that a sale occur. Further, the fact that one employee was off-duty when the illegal activity transpired does not negate the consequences of her act, for she was a regular employee, had just left an on-duty status, was on the licensed premises when the transaction occurred, and presumably was still subject to the control and supervision of the manager insofar as the house prohibition against the use of drugs was concerned.
For Respondent to be held accountable for the above violations by its agent or employee, there must be sufficient evidence to show that the licensee was "culpably responsible for the alleged violations as a result of his own negligence, intentional wrong-doing or lack of diligence." G & B of Jacksonville, Inc. v. State of Florida, 366 So.2d 877, 878 (Fla. 1st DCA 1979). The activity must also be persistent or recurring, and involve more than one employee on a single occasion. Pauline v. Lee, 147 So.2d 359, 364 (Fla. 2nd DCA 1962)
The evidence herein discloses that the corporate licensee, William Miller, was unaware of the illegal activity. Therefore, Petitioner must demonstrate that Respondent failed to exercise reasonable care and diligence "to see that the licensed place of business is conducted in a lawful manner and that its employees do not violate any of the laws of the State of Florida." G & B of Jacksonville, Inc. v. State of Florida, 371 So.2d 138, 139 (Fla. 1st DCA 1979). Here we have three illicit transactions on the licensed premises involving two employees or agents over a period of nine days. Two of the transactions occurred in an open and notorious manner at the bar where other patrons were seated. The third was less visible and cannot be characterized as such since it took place in a telephone booth at the rear of the premises. On each occasion the full-time manager was on-duty, and although in reasonably close proximity to the errant employees, professed to be without knowledge of their illegal
activities. The admonition of the Court in G & B of Jacksonville, Inc., supra, is applicable under the circumstances herein and bears repeating. "If a licensee does not maintain sufficient intelligence with reference to activities at his or its licensed premises so as to know that two or more of its employees are engaged in such activity as was herein established, then such licensee must be held to have been lacking in reasonable diligence in the proper management of its Premises." Id. at 139. The offenses committed by Stamm and B. J. on three separate occasions over a nine day period, together with Respondent's conduct in failing to adequately supervise the licensed premises, establish the violations in Counts 1 through 3 of the Notice to Show Cause. Further, while the number of employees involved (two) and illegal acts (three) do not represent widespread or rampant illegal conduct, they nevertheless constitute a sufficient minimal number to permit a factual inference that they were a persistent and recurring activity on the premises of the lounge.
Respondent contends that the factual situation herein differs from that present in the G & B of Jacksonville, Inc. cases in that the commission of illegal acts here was prompted by the beverage agents rather than the employees. In the G & B decisions, the employees of the licensee had solicited beverage agents posing as patrons to commit certain illegal sexual acts. While it is true that this distinction exists, nevertheless the licensee is still held to a standard of reasonable care to insure that his employees do not violate any laws of this State, irrespective of who initiates the illegal conduct.
Count 4 involves a charge that Respondent "did maintain a place, to wit: your licensed premises at 10917-19 S.W. 40th Street, Miami, Dade County, Florida which is resorted to by persons using controlled substances for the purpose of using these controlled substances, to wit: cannabis and methaqualone (quaaludes) as this place is used for keeping or selling them in violation of FS 893.13(1)(2)(a)(c) within FS 561.29(1)(a)." The section of Chapter 893 upon which Petitioner relies is apparently a typographical error for no such section exists. Presumably, the Petitioner had reference to Section 893.13(2)(a)5, Florida Statutes, which generally proscribes the activity described in Count 4. In any event, there was no showing of intent by the owner to keep the premises for any of these purposes and, therefore, the charge should be dismissed.
Count 5 charges the Respondent with maintaining a "public nuisance" on its licensed premises in that said premises are "visited by persons for the purpose of unlawfully using substances controlled under Chapter 893...or which (are) used for the illegal keeping, selling, or delivering of same, contrary to FS 823.10 and FS 561.29(1)(d)." The law does not prescribe a minimum number of transactions that must occur on the premises in order to constitute a public nuisance. Certainly in keeping with the rationale of Pauline, supra, more than one illegal transaction must occur and there must be a "persistent and recurring" pattern of conduct. The three transactions by two employees over a nine-day period has previously been found herein to constitute a persistent and recurring activity, and it is concluded that such conduct is sufficient to warrant a finding of guilt as to Count 5. While Respondent correctly states that no controlled substances were actually used on the licensed premises, nevertheless two deliveries and a sale did occur, both of which are proscribed activities under the law.
Although the above violations will support some form of disciplinary action against the Petitioner, mitigating circumstances should be considered, particularly since "outright revocation of a beverage license is a most serious and drastic penalty, even in a flagrant case." Taylor v. State Beverage Department, 194 So.2d 321, 329 (Fla. 2nd DCA 1967). Respondent's only prior
violation involved a soliciting charge some 5 years ago. In the meantime, Respondent has sought, albeit with only partial success, to control illegal drug use and sales by written rules of conduct, oral instructions to employees, the employment of a full-time evening manager and the imposition of sanctions against guilty employees or agents. Further, there is nothing to indicate that the sale or use of illegal drugs were fostered or condoned by the licensee or were in any way advantageous to its business.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violations as alleged in
Counts 1, 2, 3 and 5 of the Notice to Show Cause. It is further
RECOMMENDED that the charge contained in Count 4 be dismissed. It is further
RECOMMENDED that Respondent's License No. 23-2365 (4-COP) be suspended for a period of 30 days from the date of the final agency order.
DONE and ENTERED this 12th day of June, 1981, in Tallahassee, Florida.
DONALD R. ALEXANDER
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1981.
COPIES FURNISHED:
Daniel C. Brown, Esquire 725 South Bronough Street Tallahassee, Florida 32301
Seymour Chadroff, Esquire and Lane S. Abraham, Esquire
200 Southeast 1st Street Suite 800
Miami, Florida 33131
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO,
Petitioner,
vs. CASE NO. 81-1004
LOUNGE, INC., d/b/a BIRD'S NEST LOUNGE,
Respondent.
_/
FINAL ORDER
This matter is before the undersigned for consideration of the Recommended Order of the Hearing Officer dated June 12, 1981, the Motion to Disqualify filed by Respondent and Respondent's exceptions to the Recommended Order.
The Motion to Disqualify has been considered. It is hereby denied. In issuing the Emergency Order of Suspension the undersigned was acting within the powers lawfully granted by Chapter 120, Florida Statutes. Further, the undersigned was exercising powers analogous to the authority of the judicial branch to issue temporary restraining orders wherein the same individual subsequently decides upon the merits of the controversy. No grounds for disqualification have been shown.
FINDINGS OF FACT
Respondent, M.S.B. Lounges, Inc., d/b/a Bird's Nest Lounge, is a liquor licensee and holder of License 23-2365 (4-COP) issued by Petitioner, Division of Alcoholic Beverages and Tobacco. It is located at 19017 Southwest 40th Street, Miami, Florida.
At approximately 11:00 p.m., on or about January 13, 1981, Beverage Officers Patrick M. Roberts and Robert R. Jones entered the licensed premises of Respondent in an undercover capacity. Their purposes was to ascertain whether controlled substances could be obtained from employees of the licensee. The visit was prompted by complaints received by the Petitioner's Miami District Office that narcotics were being sold and used on the licensed premises. There were approximately 15 to 20 patrons present in the lounge that evening during the visit of Roberts and Jones. The patrons were seated either at the bar or tables around the dance floor, where from 3 to 5 girls performed dances for the customers. A white female, Betty Lou Stamm, was the on-duty bartender. Upon being seated, and after ordering drinks, Roberts initiated a conversation with Stamm and asked her if it was possible to obtain a "lude" (methaqualone). She advised him that the person whom she generally obtained ludes from had just left the premises, but that he might return later on that evening. The officers also engaged in a conversation with a white female dancer identified as B.J. They attempted to purchase quaaludes from her, but were unsuccessful. At approximately 11:58 p.m. that evening, while the officers were preparing to depart the premises, Stamm reached across the bar with a closed hand and dropped
two tablets into Roberts' hand. At that time, the manager of the lounge, Paul Moore, was behind the bar assisting Stamm in serving customers and a number of patrons were seated close by. The tablets given to Roberts were later established to be a controlled substance, methaqualone (Petitioner's Exhibit 1).
At approximately 12:30 am., on or about January 17, 1981, Beverage Officers Roberts and Jones again visited the licensed premises of the Bird's Nest Lounge. Upon entering the premises, they seated themselves at the bar and remained there for about an hour and a half. During this time they asked Betty Lou Stamm, the on-duty bartender, if she could obtain some quaaludes. She stated that because her source was not on the premises, she could not. B. J., a dancer who was working that night, approached them at 2:00 am., and asked if they had any marijuana. Roberts responded he did not and asked if she had any.
B. J. told them if "they would just sit tight she would take care of (them)." The officers then observed B. J. approach 5 or 6 other patrons seated at the bar and began casual conversations with them. One of these patrons, a white male, produced a plastic bag which appeared to contain marijuana and placed a handful of the substance onto a napkin which B. J. was holding. D. J. then went into the ladies restroom for approximately 5 minutes, returned to the bar, handed Roberts a napkin, and stated "here is enough for a couple of joints." Roberts opened the napkin on the bar and observed what appeared to be marijuana. A subsequent laboratory analysis established that the substance was indeed .9 gram of marijuana (Petitioner's Exhibit 2). When the delivery occurred, Stamm and Moore were working the bar, and a number of patrons were seated close by.
At approximately 10:00 p.m. on or about January 21, 1981, Officers Roberts and Jones entered the licensed premises of the Respondent and seated themselves at the bar. After ordering a drink, they observed Betty Lou Stamm playing a game machine in the corner of the bar. Betty was not on duty that evening, having completed here shift at 8:00 p.m. Roberts approached her, and during the course of the conversation asked if she had cocaine or marijuana. She replied she did not. He then asked if she had any "ludes" (methaqualone). Betty told him to wait, and Roberts returned to the bar. There he observed Betty approach and engage in a conversation with an unidentified white female who had been dancing earlier in the evening. Betty returned to Roberts and stated she had two ludes for $6. After Roberts paid her $6, Betty carried the money to the white female who handed Betty an unknown substance. Betty then
motioned Roberts to come to a phone booth located at the rear of the bar. There she handed Roberts two tablets which were subsequently established by laboratory analysis to be methaqualone (Petitioner's Exhibit 3).
Mr. William J. Miller is the owner of the Bird's Nest Lounge. He does not actively work in the lounge but does assist in cleaning up the premises each morning. His wife works the day shift on occasions when he runs short of help. Miller occasionally visits the premises in the evenings, but was not present when the transactions occurred, nor was he personally cognizant of the illegal drug transactions occurring on the licensed premises. Although he has outside interests, Miller considers the lounge to be his "primary business". He employs a full-time manager, Paul Moore, who comes on duty each evening at 8:00 P. M. A "House Policy for dancers at Bird's Nest Lounge" has been posted on the dancers' dressing room door since 1976. This "Policy" enumerates prohibited practices by dancers and provides, inter alia, that "no excessive drinking or taking of drugs will be permitted while at work. (this violation will cause (sic) for immediate dismissal.)" (Respondent's Exhibit 2). Brenda Johnson (known as B. J.) was advised of this regulation when she was hired and signed a written agreement whereby she agreed to read and conform to the House Policy (Respondent's Exhibit 1). Other dancers are also required to do the same. In addition, the regular
employees, including the manager, are orally advised about rules relating to narcotics. If an employee or dancer is caught "participating in drugs", Miller's policy is to impose a monetary fine on the first occasion and to dismiss the employee or dancer for any subsequent transgression. It is also the policy of the lounge to request any patron found using narcotics to leave the premises.
Betty Lou Stamm worked at the Bird's Nest Lounge as a bartender for about 3 months. She was fired shortly after the events in question occurred.
B.J. , a dancer, was also fired immediately after her participation in the transactions was discovered.
The Respondent has operated his lounge since 1975 or 1976. Other than a soliciting violation in 1976, there having been no other beverage violations by the licensee. At no time while on the licensed premises did the beverage agents see anyone, patron or employee, using any suspected narcotic nor did they ever smell the aroma of marijuana in the air.
CONCLUSIONS OF LAW
The Division of Administrative Hearings had jurisdiction of the subject matter and the parties here to pursuant to Section 120.57(1), Florida Statutes.
Section 561.29(1), Florida Statutes, enumerates the grounds upon which the Division may revoke or suspend the license of any person holding a license under the Beverage Law. As is pertinent here, they include:
(1)(a) Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises. . . of any of the laws of this state. . .
(1)(c) Maintaining a nuisance on the license premises.
Section 893.13(1)(a), Florida Statutes, makes it "unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance." "Cannabis" or "marijuana", and "methaqualones" are defined as controlled substances in Sections 893.03(1)(c)3 and 893.03(2)(c)5, Florida Statutes. The sale, manufacture or delivery of marijuana or methaqualones are prohibited acts whose penalties are set forth in Section 893.13, supra.
Section 823.10, Florida Statutes, provides as follows:
Any store, shop. . . building. . . or any place whatever, which is visited
by persons for the purpose of unlawfully using any substance controlled under Chapter 893 or any drugs as described in Chapter 500, or which is used for the illegal keeping, selling, or deliveries of the same, shall be deemed a public nuisance. No person shall keep or maintain such public nuisance or aid and abet another in keeping or maintaining such
public nuisance.
Counts 1 through 3 of the Notice to Show Cause involve alleged illegal sales or deliveries of controlled substances on the licensed premises of Respondent. The record clearly establishes that: (a) the delivery of two methaqualone tablets without compensation from Betty Lou Stamm to Officer Roberts occurred on January 13, 1981, (b) the delivery without compensation of
.9 gram of marijuana from Brenda Johnson (B.J.) to Officer Roberts occurred on January 17, 1981, and (c) the sale of two methaqualone tablets for $6.00 from Betty Lou Stamm to Officer Roberts occurred on January 21, 1981. On each occasion, the transaction took place on the licensed premises of Respondent (see Section 561.01(11), Florida Statutes) and involved his employee or agent. It is immaterial that only one of the three transactions involved an exchange of compensation, for the law does not require that a sale occur. Further, the fact that one employee was off-duty when the illegal activity transpired does not negate the consequences of her act, for she was a regular employee, had just left an on-duty status, was on the licensed premises when the transaction occurred, and presumably was still subject to the control and supervision of the manager insofar as the house prohibition against the use of drugs was concerned.
For Respondent to be held accountable for the above violations by its agent or employee, there must be sufficient evidence to show that the licensee was "culpably responsible for the alleged violations as a result of his own negligence, intentional wrongdoing or lack of diligence." G & B of Jacksonville, Inc., v. State of Florida, 366 So.2d. 877, 878 (Fla. 1st DCA 1979). The activity must also be persistent or recurring, and involve more than one employee on a single occasion. Pauline v. Lee, 147 So.2d. 359, 364 (Fla. 2nd DCA 1962).
The evidence herein discloses that the corporate licensee, William Miller, was unaware of the illegal activity. Therefore, Petitioner must demonstrate that Respondent failed to exercise reasonable care and diligence "to see that the licensed place of business is conducted in a lawful manner and that its employees do not violate any of the laws of the State of Florida." G & B of Jacksonville, Inc. v. State of Florida, 371 So.2d 138, 139 (Fla. 1st DCA 1979). Here we have three illicit transactions on the licensed premises involving two employees or agents over a period of nine days. Two of the transactions occurred in an open and notorious manner at the bar where other patrons were seated. The third was less visible and cannot be characterized as such since it took place in a telephone booth at the rear of the premises. On each occasion the full-time manager was on-duty, and although in reasonably close proximity to the errant employees, professed to be without knowledge of their illegal activities. The admonition of the Court in G & B of Jacksonville, Inc., supra, is applicable under the circumstances herein and bears repeating. "If a licensee does not maintain sufficient intelligence with reference to activities at his or its licensed premises so as to know that one or more of its employees are engaged in such activity as was herein established, then such licensee must be held to have been lacking in reasonable diligence in the proper management of its premises." Id. at 139. The offenses committed by Stamm and B.J. on three separate occasions over a nine day period, together with Respondent's conduct in failing to adequately supervise the licensed premises, establish the violations in Counts 1 through 3 of the Notice to Show Cause. Further, while the number of employees involved (two) and illegal acts (three) do not represent widespread or rampant illegal conduct, they nevertheless constitute a sufficient minimal number to permit a factual inference that they were a persistent and recurring activity on the premises of the lounge.
Respondent contends that the factual situation herein differs from that present in the G & B of Jacksonville, Inc. cases in that the commission of illegal acts here was prompted by the beverage agents rather than the employees. In the G & B decisions, the employees of the licensee had solicited beverage agents posing as patrons to commit certain illegal sexual acts. While it is true that this distinction exists, nevertheless the licensee is still held to a standard of reasonable care to insure that his employees do not violate any laws of this State, irrespective of who initiates the illegal conduct.
7. Count 4 involves a charge that Respondent "did maintain a place, to wit: your licensed premises at 10917-19 S.W. 40th Street, Miami, Dade County, Florida which is resorted to by persons using controlled substances for the purpose of using these controlled substances, to wit: cannabis and methaqualone (quaaludes) as this place is, used for keeping or selling then in violation of FS 893.13(1)(2)(a)(c) within FS 561.29(1)(a)." The section of Chapter 593 upon which Petitioner relies is apparently a typographical error for no such section exists. The Petitioner had reference to Section 693.13(2)(a)5, Florida Statutes, which proscribes the activity described in Count 4.
For Respondent to be found guilty of the violation alleged in Count 4, there must be a showing by competent substantial evidence that the licensee, by its negligence or lack of diligence, allowed the licensed premises to be resorted to by persons using controlled substances in violation of Florida Statute 893.13(2)(a)5. The three transactions by two employees over a nine day period has previously been found herein to constitute a persistent and recurring activity, and it is concluded that such conduct is sufficient to warrant a finding of guilty as to Count 4.
6. Count 5 charges the Respondent with maintaining a "public nuisance" on its licensed premises in that said premises are "visited by persons for the purpose of unlawfully using substances controlled under Chapter 893. . . or which (are) used for the illegal keeping, selling, or delivering of same, contrary to FS 823.10 and FS 561.29(1)(d)." The law does not prescribe a minimum number of transactions that must occur on the premises in order to constitute a public nuisance. Certainly in keeping with the rationale of Pauline, supra, more than one illegal transaction must occur and there must be a "persistent and recurring" pattern of conduct. The three transactions by two employees over a nine-day period has previously been found herein to constitute a persistent and recurring activity, and it is concluded that much conduct is sufficient to warrant a finding of guilt as to Count 5. While Respondent correctly states that no controlled substances were actually used on the licensed premises, nevertheless two deliveries and a sale did occur, both of which are proscribed activities under the law.
RULINGS ON EXCEPTIONS
Respondent's exceptions 1 through 3 are overruled. The undersigned, having reviewed the transcript and evidence presented to the Hearing Officer, is of the opinion that competent substantial evidence exists in the record to support the factual and legal conclusions challenged by Respondent's exceptions number 1 through 3.
Respondent's exception 4 is overruled. To the extent that the Hearing Officer rejected Respondent's proposed findings of fact, be did so because they were immaterial or not supported by competent substantial evidence and his action was correct.
The undersigned, having reviewed the evidence and record in this case in its entirety, concludes that the nature of the charges and the facts in this case warrant revocation of the beverage license in question.
Accordingly, it is Ordered:
That Respondent is guilty of the violations alleged in Count 1, 2, 3, 4 and
5 of the Notice to Show Cause.
It is further Ordered that Respondent's license no. 23-2365 (4-COP) be and is hereby revoked.
DONE AND ENTERED this 6th day of July, 1981, in Tallahassee, Florida.
CHARLES A. NUZUM, DIRECTOR
Division of Alcoholic Beverages and Tobacco
State of Florida
Copies furnished to:
Daniel C. Brown Seymour Chadroff Lane Abraham
Donald R. Alexander
| Issue Date | Proceedings |
|---|---|
| Jul. 21, 1981 | Final Order filed. |
| Jun. 12, 1981 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 06, 1981 | Agency Final Order | |
| Jun. 12, 1981 | Recommended Order | Charge that statute was violated sustained. |
