STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF ALCOHOLIC ) BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1151

) LIBRARY LOUNGE, INC., d/b/a ) LIBRARY LOUNGE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tampa, Florida, on May 26, 1982, before the Division of Administrative Hearings and its duly appointed Hearing Officer,

1. T. Carpenter. The parties were represented by:

   
   

   For Petitioner: John A. Boggs, Esquire

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

   
   

   For Respondent: Ira Weinstein, Esquire

   2021 East 7th Avenue Tampa, Florida 33605

   
   

   The case was presented through Petitioner's Notice to Show Cause/Administrative Complaint, charging Respondent as follows:

   
   

   1. On or about November 30, 1980, you, Library Lounge, Inc., licensed under the beverage laws, your agent, servant, or employee, to wit: Lila Colvert, did, while in the scope of her employment, violate a law, to wit: Delivery and Possession of Cocaine, contrary to Florida Statute 893.13, within Florida Statute 561.29.

      
      

   2. On or about December 2, 1980, you, Library Lounge, Inc., licensed under the beverage laws, your agent, servant, or employee, to wit: Barbara Ann Smith, did, while in the scope of her employment, violate a law, to wit: Delivery and Possession of Quaaludes, contrary to Florida Statute 893.13, within Florida Statute 561.29.

   3. On or about December 5, 1980, you, Library Lounge, Inc., licensed under the beverage laws, your agent, servant, or employee, to wit: Lila Colvert, did, while in the scope of her employment, violate a law, to wit:

      Delivery and Possession of Quaaludes, contrary to Florida Statute 893.13, within Florida Statute 561.29.

      
      

   4. On or about December 7, 1980, you, Library Lounge, Inc., licensed under the beverage laws, your agent, servant, or employee, to wit: Barbara Ann Smith, did, while in the scope of her employment, violate a law, to wit: Delivery and Possession of Quaaludes, contrary to Florida Statute 893.13 within Florida Statute 561.29.

      
      

   5. On or about December 9, 1980, you, Library Lounge, Inc., licensed under the beverage laws, your agent, servant, or employee, to wit: Brenda Sue Parr, did, while in the scope of her employment, violate a law, to wit: Delivery and Possession of Quaaludes, contrary to Florida Statute 893.13 within Florida Statute 561.29.

      
      

   6. On or about December 12, 1980, you Library Lounge, Inc., licensed under the beverage laws, your agent, servant, or employee, to wit: Tammy Doreen Yates, did while in the scope of her employment violate a law, to wit: Delivery and Possession of Quaaludes, contrary to Florida Statute 893.13 within Florida Statute 561.29.

The parties submitted posthearing briefs which included 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 rejected as irrelevant or unsupported by the evidence.

FINDINGS OF FACT

1. Respondent holds alcoholic beverage license no. 39-651, Series 4-COP, which applies to its business known as Library Lounge, located at 10924 Nebraska Avenue, Tampa, Florida. Respondent was so licensed at all times relevant to this proceeding.

   
   

2. Tampa Police Department Detective Robert Ulriksen was in the licensed premises in an undercover capacity during November and December, 1980. On November 30, he purchased three grams of cocaine from the dancer-employee Lila Colvert. The purchase was made openly and involved at least one other person who gave Colvert the packet which was later identified as cocaine. Ulriksen paid Colvert $25 for the packet. Tests performed by the Florida Department of Law Enforcement Crime Laboratory (FDLE) estab1ished that the substance purchased by Ulriksen was, in fact, cocaine.

3. Ulriksen purchased three purported Quaalude tablets from the dancer- employee Barbara Ann Smith for ten dollars during a visit to the licensed premises on December 2, 1980. Tests performed by FDLE established that the tablets were Quaaludes (methaqualone)

   
   

4. Ulriksen again visited the licensed premises on December 5, 1980. On this occasion he purchased three tablets from the dancer-employee Lila Colvert, which she represented as Quaaludes. FDLE tests established that these tablets were Quaaludes.

   
   

5. On December 7, 1980, Ulriksen was again in the licensed premises. On that occasion he purchased four tablets, that were later determined to be quaaludes by FDLE. He purchased these tablets for $12 from the dancer-employee Barbara Ann Smith.

   
   

6. Ulriksen visited the licensed premises on December 9, 1980, and purchased four tablets which were later determined by FDLE to be Quaaludes. Ulriksen purchased these tablets from the dancer-employee Brenda Sue Parr for

   $15.

   
   

7. On December 12, 1980, Ulriksen was in the licensed premises and discussed a purchase of quaaludes with the dancer-employee Tammy Yates. She took Ulriksen to the dancers' dressing room where she removed five Quaaludes from her purse. Ulriksen paid her $15 for these tablets, which were determined to be Quaaludes by FDLE. The dressing room transaction was observed by the manager, Gaskins, who told Ulriksen to leave.

   
   

8. The testimony of FDLE personnel and Tampa Police Department employees who secured the substances purchased by Ulriksen established that this evidence was properly controlled throughout the investigation. There was no indication whatsoever of tampering or other improper handling of the substances.

   
   

9. In mitigation of these charges, Respondent established that it has cooperated with the Tampa Police Department in the investigation of its employees and third persons who were involved in the drug trafficking. Subsequent to the arrest of these employees, Respondent adopted preemployment screening procedures and currently has no female entertainers employed in the licensed premises.

   
   

   CONCLUSIONS OF LAW

   
   

10. Section 561.29, Florida Statutes (1981), 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 . . . .

          
          

11. The above provisions have been construed to permit license suspension or revocation only where the license holder has knowledge of the illegal

    activity or has been negligent in supervising the licensed premises. 1/ Although a single, isolated incident outside the licensee's knowledge does not warrant a finding of negligence, violations of a persistent and recurring nature render the licensee culpably responsible. 2/

    
    

12. Subsection 893.13(1)(a), Florida Statutes (1979), makes sale or delivery of a controlled substance unlawful except in circumstances not applicable here. Cocaine and methaqualone are listed as controlled substances under Section 893.03, Florida Statutes (1979)

    
    

13. Petitioner demonstrated by substantial, competent evidence that four different employees sold and delivered controlled substances on the licensed premises on six different days between November 30 and December 12, 1980, as charged in the Administrative Complaint.

    
    

14. Although the evidence did not establish that Respondent bad actual knowledge of these transactions, they were carried out openly in the licensed premises. This is the sort of persistent and recurring activity that renders the licensee culpably responsible.

    
    

15. Respondent's defense that the drug sales discussed herein were instigated by members of a motorcycle gang is rejected. Even if this theory had been proven, bit would not have relieved Respondent from its responsibility to supervise the licensed premises.

RECOMMENDATION

From the foregoing, it is RECOMMENDED:

That Petitioner enter a Final Order finding Respondent guilty of all charges contained in the Notice to Show Cause/Administrative Complaint and suspend Respondent's alcoholic beverage license no. 39-651 for a period of thirty days.

DONE and ENTERED this 19th day of July, 1982 at 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 19th day of July, 1982.

ENDNOTES

1/ G&B of Jacksonville, Inc., v. State, 371 So.2d 138, 371 So.2d 139, 381 So.2d

1074 (Fla. 1st DCA 1979); Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962). 2/ Id.

COPIES FURNISHED:

John A. Boggs, Esquire Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32301

Ira Weinstein, Esquire 2021 East 7th Avenue Tampa, Florida 33605

Charles A. Nuzum, Director Division of Alcoholic Beverages

and Tobacco Department of Business Regulation

725 South Bronough Street Tallahhssee, Florida 32301

Gary A. Rutledge, Secretary Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 82-001151

Orders for Case No: 82-001151