STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2088

) JAMES R. NUSS T/A LIL RASCALS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Orlando, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter, September 9, and December 1, 1981.

APPEARANCES

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

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Richard S. Rhodes, Esquire

126 East Jefferson Street Orlando, Florida 32801

This case was presented through a Notice to Show Cause in which the requested relief is the revocation of Respondent's alcoholic beverage license. The Notice to Show Cause contains the following charges:

1. On or about the 4th of March, 1981, you, JAMES R. NUSS, d/b/a LIL RASCALS, licensed under the beverage

   laws and/or your agent, servant, or employee, LITTLE BIT, on your licensed premises, did unlawfully sell and/or deliver a controlled substance named or described in

   F.S. 893.03(2)(a)4 to wit: cocaine, to Beverage Officer R. A. RUSS, in violation of F.S. 893.13(1)(a) to wit: F.S. 561.29(1)(a)

   
   

2. On or about the 13th of March, 1981, you, JAMES R. NUSS, d/b/a LIL RASCALS, licensed under the beverage laws and/or your agent, servant, or employee, LITTLE BIT,

   on your licensed premises, - did unlawfully sell and/or deliver a controlled substance named or

   described in F.S. 893.03(2)(c)5 to wit: Methaqualone to Beverage Officer R. A. RUSS, in violation of F.S. 893.13(1)(a) to wit: F.S. 561.29(1)(a).

   
   

3. On or about the 19th day of March, 1981, you, JAMES R. NUSS d/b/a LIL RASCALS, licensed under the beverage laws and/or your agent, servant, or employee, BOB CARTER, 1/ on your licensed premises did unlawfully sell and/or deliver a controlled substance named or described in F.S. 893.03(1)(c)3 to wit: Cannabis, to Beverage Officer

   D. G. MacLAREN, in violation of F.S. 893.13(1)(a) to wit: F.S. 561.29(1)(a).

   
   

4. On or about the 19th day of March, 1981, you, JAMES R. NUSS d/b/a

   LIL RASCALS, licensed under the beverage laws and/or your agent, servant, or employee, BOB CARTER, on your licensed premises did unlawfully sell and/or deliver a controlled substance named or described in F.S. 893.03(1)(c)3 to wit: Cannabis, to Beverage Officer R. A. RUSS, in violation of F.S. 893.13(1)(a) to wit: F.S. 561.29(1)(a).

   
   

5. On or about the 30th day of March, 1981, you, JAMES R. NUSS d/b/a

   LIL RASCALS, licensed under the beverage laws and/or your agent, servant, or employee, to wit:

   BOB CARTER, did unlawfully solicit or conspire with an unidentified

   white male at your licensed premises to sell and/or deliver a

   controlled substance named or described in F.S. 893.03(2)(c)5 to wit: Methaqualone to Beverage Officer R. A. RUSS, in violation of F.S. 893.13(1)(a) to wit:

   F.S. 561.29(1)(a).

   
   

6. On or about the 30th day of March, 1981, you, JAMES R. NUSS d/b/a

LIL RASCALS, licensed under the beverage laws and/or your agent, servant, or employee, to wit:

BOB CARTER, did unlawfully solicit

or conspire with an unidentified white male at your licensed premises to sell and/or deliver a controlled substance named or described

in F.S. 893.03(2)(c)5 to wit:

Methaqualone to Beverage Officer

D. G. MacLAREN, in violation of

F.S. 893.13(1)(a) to wit: F.S. 561.29(1)(a).

The parties submitted proposed findings of fact and conclusions of law. To the extent these proposed findings have not been adopted or otherwise incorporated herein, they have been specifically rejected as irrelevant or unsupported by the evidence.

FINDINGS OF FACT

1. Respondent was granted a temporary beverage license on February 3, 1981, under which he began operating the bar known as Lil Rascals, located at 6040 Old Winter Garden Road, Orlando. He was subsequently issued beverage license number 58-1497, Series 2-COP, which was suspended pending the outcome of these proceedings.

   
   

2. Respondent hired Robert Trotter about March 1, 1981, as bar manager/bartender. Trotter had 18 years experience as a bartender, and had held a beverage license in Florida between 1977 and 1979. He was introduced by a business broker who is active in the sale of licensed beverage establishments, and Respondent had no apparent reason to doubt his qualifications.

   
   

3. Respondent instructed Trotter to operate a "clean" bar and they jointly developed policies for employees which prohibited drug use or sale on the premises. Although Respondent visited the bar several times weekly for various business reasons, Trotter was generally responsible for hiring and firing of employees and maintaining order.

   
   

4. Petitioner conducted an undercover investigation of the licensed premises between March 4 and March 30, 1981. Beverage Officers D. G. MacLaren and R. A. Russ purchased drugs from both Trotter and the employee/dancer, "Little Bit," and discussed these transactions openly in the bar. Delivery of the drugs was made inside the licensed premises and in the adjacent parking lot.

   
   

5. The following six drug purchases were made by MacLaren and Russ: March 4, cocaine; March 13, methaqualone; March 19, cannabis (2); and March 30, methaqualone (2). The March 4 and 13 purchases were from the employee/dancer Little Bit. The March 19 purchases were from the bartender/manager, Trotter. The March 30 purchases were made from a patron on the licensed premises with the assistance of Trotter.

   
   

   CONCLUSIONS OF LAW

   
   

6. Subsection 893.13(1)(a), Florida Statutes (1979) makes sale or delivery of a controlled substance unlawful except in circumstances not applicable here. Cocaine, methaqualone and cannabis are listed as controlled substances under Section 893.03, Florida Statutes (1979). Therefore, Respondent's employees Trotter and Little Bit are guilty of violating these provisions in the course of their employment through the sale and delivery of such substances to Petitioner's beverage officers.

7. Subsection 561.29(1)(a), Florida Statues (1979), provides in part:

   
   

   1. The division is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when it is determined or found by the division upon sufficient cause appearing of:

      1. Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state . . . .

         
         

8. The above provisions have been construed to permit license suspension or revocation only where the owner has knowledge of the illegal activity or has been negligent in supervising the licensed premises. 2/ Although a single, isolated incident does not warrant a finding of negligence, the drug sales here were of a persistent and recurring nature, and Respondent must be held responsible for this illegal activity.

   
   

9. Although the above findings establish licensee negligence and will support the revocation sought by Petitioner, mitigating factors should be considered. There is no evidence to indicate the drug sales were known to Respondent or were in any way advantageous to his business. Be had only briefly operated under his license when it was suspended and thus his opportunity to control the illegal drug activity was somewhat limited. Therefore, license suspension rather than revocation is appropriate.

RECOMMENDATION

From the foregoing, it is

RECOMMENDED that Respondent be found guilty of violations as charged in Counts one through six of the Notice to Show Cause. It is further

RECOMMENDED that Respondent's beverage license number 58-1497, Series 2- COP, be suspended for a period of six months.

DONE AND ENTERED this 30th day of December, 1981, in Tallahassee, Florida.

R. T. CARPENTER, 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 30th day of December, 1981.

ENDNOTES

1/ The correct name of this individual is Robert Trotter.

2/ Cases cited by the parties which support this rule are G&B of Jacksonville, Inc., v. State, 371 So.2d 138, 378 So.2d 139, 381 So.2d 1074 (Fla. 1st DCA

1979); and Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962).

COPIES FURNISHED:

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

Richard S. Rhodes, Esquire

126 East Jefferson Street Orlando, Florida 32801

Docket for Case No: 81-002088

Orders for Case No: 81-002088