STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO )

)

Petitioner, )

)

vs. ) CASE NO. 82-1473

)

WILKIE P. FLYNN d/b/a THE )

LAUGH INN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Bearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on June 4, 1982, in Pensacola, Florida.

APPEARANCES

For Petitioner: Daniel C. Brown, Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Mark J. Proctor, Esquire

Seville Tower

226 South Palafox Street Pensacola, Florida 32501

ISSUE PRESENTED

Whether respondent's alcoholic beverage license should be suspended or revoked on charges that its licensed lounge: (1) was resorted to be persona using illicit drugs or was used for the keeping or selling of' illicit drugs; and (2) constituted a public nuisance by virtue of such illicit drug activity.

BACKGROUND

On May 25, 1982, petitioner Division of Alcoholic Beverages and Tobacco ("DART") served respondent Wilkie P. Flynn, d/b/a The Laugh Inn ("respondent"), with (1) an emergency order alleging violations of the Beverage Law, Chapter 561, Florida Statutes (1981) and suspending respondent's alcoholic beverage license, and (2) a notice to show cause why the license should not be suspended or revoked on specified grounds.

Respondent contested the allegations and requested a hearing. On June 1, 1982, DABT forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer to conduct the requested hearing.

At the outset of hearing, respondent affirmatively waived the 14-day notice requirement provided by Section 120.57(1)(b)2, Florida Statutes (1981). Both parties were also informed that the charges contained in DABT's notice to show cause were the subject of the hearing, not the specific allegations contained in the emergency suspension order. DABT thereafter called as its witnesses:

Robert Baxley, Stuart Stamm, Mark Chidichimo, Michael J. Steele, Linda Dees, Martha Roberson, Marilyn Medlin, Lawrence Mainer, Marion Parker Estes, John Barber, and Jack Kiker. Petitioner's Exhibit 1/ Nos. 1-7, 9-13, 19, and 20 were received into evidence. Respondent testified in his own behalf and called: Frances Flynn, Doris Sheldon, David Saucier, Larry Harrison, Patricia Randolph, Caroline Burch, Wilbur Settles, June Donlon, and Pat Finney as his witnesses.

Respondent's Exhibit No. 1 was also received into evidence.

The parties submitted proposed findings of fact and conclusions of law by June 14, 1982.

FINDINGS OF FACT I.

Respondent and the Licensed Premises

1. Respondent holds alcoholic beverage license No. 27-00312 (Series 2- COP). Under this license he owns and operates a lounge known as the "Laugh Inn" at 49 Navy Boulevard, Pensacola, Escambia County, Florida. The lounge sells beer, wine, and food to its customers. (Testimony of W. Flynn; P-13.)

   
   

2. The Laugh Inn ("licensed premises" or "premises") has two main rooms with a connecting passageway. The front room contains tables, chairs, pool tables, and a bar. To the rear of the bar is an enclosed storage room separating the front from the rear room. The passageway connecting to the rear room is approximately 6 feet wide. On the north aide of the passageway are three restrooms. The rear room contains additional tables and chairs, pool tables, pinball machines, and a "football" table. Because the two main rooms are separated by the storage room, a person tending bar in the front room would be unable to see the rear room area. The rear room ceilings contain three exhaust fans to remove smoke and odors. (Testimony of W. Flynn; R-1.)

   
   

3. The licensed premises does not include any area outside the lounge. No property outside of the lounge building was included in the sketch attached to respondent's application for an alcoholic beverage license. Be owns land in back of the premises on which he has placed a small trailer. Be owns a narrow strip of land on each side of the premises and a 3-foot-wide strip of land in front, facing Navy Boulevard. The front parking area--where customers ordinarily park their cars--is neither owned nor controlled by respondent. This parking area is on publicly owned property. Several windows on the premises face the parking area, but they have curtains which are ordinarily closed during business hours. There are no other windows on the premises from which the front parking area can be seen. (Testimony of W. Flynn; R-1.)

   
   

   II.

   
   

   Illicit Drug Activities on or Adjacent to Licensed Premises

   
   

4. In April, 1982, undercover officers from the Escambia County Sheriff's Office began an investigation to determine whether violations of the controlled substances law were occurring on the licensed premises. On April 20, 1982,

   Deputy Linda Dees of the Santa Rosa County Sheriff's Office took delivery of a controlled substance--approximately 25.6 grams of cannabis (marijuana) --from Eric Babcock, a patron of the premises. The delivery took place on the premises at the front bar, where Deputy Bees and Mr. Babcock were seated. He placed the bag of cannabis into her purse--which was on her lap below the bar--and she paid him $35. (Testimony of Dees.)

   
   

5. On that same day, April 20, 1982, Deputy Marilyn Medlin of the Escambia County Sheriff's Office took delivery of a controlled substance--approximately

   12 grams of cannabis--from Mike Milstead, another patron. Although discussions for the purchase took place in the licensed premises--in a normal tone of voice-

   -the drugs were delivered and paid for in a vehicle located in the parking area in front of the licensed premises--an area neither owned nor controlled by respondent. (Testimony of Medlin;

   
   

6. Seven days later, on April 27, 1982, Deputy Medlin purchased a controlled substance--three tablets of Lysergic Acid Diethylamide (LSD) --from Lydia Quinonas, another patron. The purchase and delivery took place in the rear room of the premises, where Deputy Medlin and Ms. Quinonas were seated. The three tablets were small in size--smaller than ordinary aspirin tablets; Ms. Quinonas delivered the tablets by placing the palm of her hand over the deputy's upturned palm and dropping the tablets. During this transaction, several other persons were in the rear room playing pool. The area was well lighted. (Testimony of Medlin.)

   
   

7. On the same day--April 27, 1982--Deputy Dees purchased approximately

   21.7 grams of cannabis from Steve Sweat and Kenny Crabtree, patrons of the bar. They also gave Deputy Bees the remaining portion of a marijuana cigarette. The delivery and sale of these drugs took place outside the licensed premises in a truck parked in the front parking area--an area neither owned nor controlled by respondent. Deputy Dees placed the drugs inside her purse where they remained until delivered to law enforcement authorities. (Testimony of Dees.)

   
   

8. On May 3, 1982, Deputy Medlin purchased a bag containing approximately

   18 grams of cannabis from Thurston Raines, a bar patron. The delivery took place in a private vehicle parked in a well-lighted area in front of the premises. (Neither the vehicle nor the area in which it was parked was owned or controlled by respondent.) Deputy Medlin immediately placed the cannabis into her purse where it remained until delivered to the Sheriff's Office. (Testimony of Medlin.)

   
   

9. Later in the evening on May 3, 1982, Deputy Dees i1purchased approximately 17 grams of cannabis from Eric Babcock,

   a patron of the bar. Mr. Babcock removed a grocery bag concealed above the ceiling in the rear room of the premises. They then proceeded to a private vehicle parked in front of the premises where Deputy Dees selected one of what appeared to be several bags of cannabis in the grocery sack. After placing the bag and the grocery sack in her purse, they returned to the rear room of the premises, where Mr. Babcock returned the grocery bag to its hiding place. (Deputy Dees concealed the grocery bag in her purse when they reentered the premises because Mr. Babcock did not want to be seen carrying it.) The ceiling of the rear room was recently replaced and respondent was not informed of any cannabis having been stored in the ceiling. (Testimony of Dees.)

   
   

10. On May 4, 1982, Louis Austie gave Deputy Medlin the remaining portion (.3 gram) of a marijuana cigarette. The cigarette was being smoked by several persons standing outside the front door of the licensed premises. When a

    sheriff's patrol car entered the lot, Mr. Austie quickly extinguished the cigarette and gave it to Deputy Medlin. This drug transaction took place on property neither owned nor controlled by respondent. (Testimony of Medlin.)

    
    

11. During the evening of May 14, 1982, Deputy Medlin telephoned Kay Towney, the night bartender on the premises, and asked her if she knew anyone who would sell her marijuana. Ms. Towney replied that there was a customer on the premises who would sell it to her. Deputy Medlin then proceeded to the premises where Ms. Towney introduced her to Tom Suggs, a customer. After negotiating the sale of .25 ounces of marijuana, Deputy Medlin and Mr. Suggs proceeded to a private car in the front parking area; the delivery took place inside the parked vehicle. (In a subsequent statement given to police officers, Ms. Towney stated that she was aware of drug trafficking on the licensed premises; that she helped arrange drug transactions between her customers; that she knew Eric Babcock had hidden drugs in the ceiling; and that she knew Mr. Babcock, Mark Padgett, and one other person were drug dealers.) (Testimony of Medlin, Kiker.)

    
    

12. On May 14, 1982, Mark Padgett approached Deputy Medlin on the premises and asked her if she wanted to buy some quaaludes. She responded that she did. He then delivered a drug to Deputy Medlin in the parking lot area in front of the premises. Subsequent laboratory analysis revealed that drug was not a controlled substance. (Testimony of Medlin.)

    
    

13. On several occasions during her investigation, Deputy Medlin observed people in the rear room of the premises smoking what appeared to be marijuana. Since she is familiar with the odor of marijuana smoke, her conclusion is accepted as persuasive. (Testimony of Medlin.)

    
    

14. On three or four separate occasions during April, 1982, Stewart Stamm-

    -a person familiar with the appearance and odor of burning marijuana--saw customers smoking marijuana in the rear room of the licensed premises. He also has purchased marijuana from patrons of th& bar approximately 30 times. (Testimony of Stamm.)

    
    

15. On May 26, 1982, Deputy Medlin engaged in an open and loud conversation with Kay Towney, the night bartender. The conversation took place at the bar on the premises and concerned the use of quaaludes. Other customers were 5 to 7 feet away. Ms. Towney then sold to Deputy Medlin what she represented to be two quaalude tablets. 2/ (Testimony of Medlin.)

    
    

16. On April 20, 1982, Deputy Medlin observed Kay Towney remove what appeared to be brushes from a compartment in the pool table in the rear room on the premises. A few minutes later, a patron returned to the pool table, opened the compartment and inserted several clear plastic bags containing what appeared to be marijuana. (The bags have not been recovered, so their contents have not been definitively identified.) (Testimony of Medlin.)

    
    

    III.

    
    

    Respondent was Unaware of Illicit Drug Activities on or Adjacent to Licensed Premises

    
    

17. Respondent did not know that illicit drug activities had occurred and were occurring on or adjacent to the licensed premises; neither did Frances Flynn, his wife, who acted as the night manager until October, 1981, when she left for eight months to care for her terminally ill brother-in the State of

    Washington; neither did Doris Sheldon, the daytime bartender; neither did Carolyn Burch, the employee who closed the premises each morning at 2:30 a.m. (Testimony of W. Flynn, F. Flynn, Sheldon, Burch.)

    
    

18. Respondent employed Larry Harrison and Pat Randolph to clean in and around the licensed premises on a daily basis. Mr. Harrison and Ms. Randolph would occasionally find in the parking area the remains of what they suspected to be marijuana cigarettes; but there is no evidence that they ever informed respondent of their suspicions. (Testimony of Harrison, Randolph.)

    
    

19. No law enforcement officers, including agents of the DABT, have ever informed respondent that they suspected or had reason to believe that illicit drug activities were occurring on the licensed premises.

    
    

20. Several regular customers of the bar testified that they had never sheen controlled substances being used, sold, or stored inside or outside the licensed premises. (Testimony of Saucier, Settles, Finney, Donlon.)

    
    

21. All of the purchases of the controlled substances described in section II above were initiated by the undercover officers involved. Most of the described purchases and deliveries of controlled substances occurred in the front parking area--an area neither owned nor controlled by respondent and which is not part of the licensed premises.

    
    

    IV.

    
    

    Failure to Diligently Supervise and Maintain Surveillance of Licensed Premises During Evening Hours

22. The illicit drug transactions described above occurred, for the most part, during the evening hours. During those hours--from 6:00 p.m. to 2:30 a.m.--Kay Towney served as the night bartender. Frances Flynn, wife of respondent, ordinarily served as the night-shift manager and supervised the night bartender; but Ms. Flynn was absent from October, 1981, to May, 1982, when she was caring for her ill brother in Washington. (Testimony of W. Flynn, F. Flynn.)

    
    

23. Ms. Towney was hired by respondent toward the end of 1981--while his wife was in Washington. At the job interview, respondent asked her if she used drugs; she answered she had used marijuana in the past. During April and May, 1982--when the drug transactions already mentioned took place--Ms. Towney was the only employee regularly on the premises during the night shift. Although respondent considered her a bartender, she considered herself the night manager. (Testimony of W. Flynn.)

    
    

24. In April and May, 1982--when the alleged violations occurred-- respondent did not normally supervise and maintain surveillance of the premises during the night shift. He would open the bar at 10:00 a.m. and work there throughout the day, until 6:00 or 7:00 p.m. Then he would go home; Ms. Towney was instructed to call him if any problems arose. During Ms. Flynn's eight- month absence, respondent employed David Saucier to periodically inspect the premises during the night shift. Mr. Saucier inspected the premises approximately ten times and did not observe any illicit drug activities on or adjacent to the premises. (Testimony of W. Flynn, Saucier.)

25. During the time in question--April and May, 1982-- it is concluded that respondent was negligent in that he did not exercise due diligence in supervising and maintaining surveillance of the licensed premises during the evening hours. illicit drug activities occurred repeatedly on the premises-- particularly in the rear room. Such activities were open and persistent and recur- ring. Marijuana was openly smoked in the rear room. The fact that the three exhaust fans may have helped remove the smoke--thus limiting it to the rear room--does not excuse respondent's failure to monitor the rear room area. The person nominally in charge of the premises during the night shift was aware of the illicit drug activity; she not only condoned it but actively participated in it. Although respondent was normally absent from the premises during the night shift, he employed a friend to inspect the premises only about ten times during the night-shift manager's eight-month absence.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1) , Fla. Stat. (1981) .

    
    

27. Section 561.29(1)(a), Florida Statutes (1981), empowers DABT to revoke or suspend an alcoholic beverage license if it finds:

    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 or the United States . . .

       
       

       Section 561.01(11) defines the "licensed premises" to include the building area where alcoholic beverages are served and the area embraced within the sketch of the premises attached to the license application. A license may also be disciplined if the licensee is found guilty of "maintaining a nuisance on the licensed premises." Section 561.29(1)(c) , Fla. Stat. (1981). A place or building where controlled substances are illegally kept, sold, or used is declared a statutory nuisance by Section 823.10. Cannabis and Lysergic Acid Diethylamide (LSD) are controlled substances; it is a violation of state law to sell, use, deliver, or possess them. Sections 893.18, 893.13, Fla. Stat. (1981).

       
       

28. Licensees are not insurers against unlawful acts by their employees. Woodbury v. State Beverage Department, 219 So.2d 47 (Fla. 1st DCA 1969). In order to discipline respondent's license, DABT must prove that respondent was culpably responsible for the violations alleged; that he is guilty either of intentional wrongdoing, or of condoning wrongdoing or failing to exercise due diligence in supervising and maintaining surveillance over the licensed premises. See, e.g., Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980); Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962); Golden Dolphin No. 2 v. State of Florida, Division of Alcoholic Beverages and Tobacco,

    403 So.2d 1372 (Fla. 5th DCA 1981); G & B of Jacksonville, Inc. v. State, 371 So.2d 137, 139 (Fla. 1st DCA 1979)

    
    

29. The evidence in this case establishes that respondent was negligent in that he did not ensure that the licensed premises was diligently supervised during the evening hours. Cannabis was possessed and used repeatedly on the premises during the time in question; its use was open, persistent, and recurring, particularly in the rear room. The fact that the rear room could not be effectively supervised by a bartender in the front room (because of the

    partition between the two main rooms) does not relieve respondent of responsibility to supervise activities in that area. After all, it is the respondent who decided the configuration of rooms within the premises and the number of employees hired to supervise operations during evening hours. He cannot avoid the consequences of those decisions.

    
    

30. The record therefore establishes that respondent is guilty of the charges--that he violated Section 561.29 of the Beverage Law --in the manner alleged. Respondent, however, is not legally responsible for the numerous violations of the state controlled substances law which occurred outside of and adjacent to the licensed premises--on property which he neither owned nor controlled. See, Section 561.29(1)(a) and (c), Fla. Stat. (1981).

    
    

31. Penalty. License revocation is an extreme and drastic penalty which should be applied only in the most flagrant cases. Taylor v. State Beverage Department, 194 So.2d 321, 329 (Fla. 2d DCA 1967). Here, respondent is guilty of simple negligence, not intentional wrongdoing. Be did not know that illicit drug violations were taking place on or adjacent to the premises, neither did law enforcement authorities ever advise him of their suspicions that such activities were occurring. His failure to diligently supervise operations during the evening hours is due, in part, to the unexpected and extended eight- month absence of his night-shift manager. No prior disciplinary infractions have been shown. Accordingly, it is concluded that a sixty (60) day suspension of respondent's alcoholic beverage license is warranted and appropriate.

    
    

32. To the extent the parties' proposed findings of fact are incorporated in this recommended order, they are adopted; otherwise, they are rejected as unsupported by the evidence or unnecessary to resolution of the issues presented. 3/

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That respondent's alcoholic beverage' license be suspended for sixty (60) days, subtracting therefrom the number of days such license has been suspended due to the emergency suspension order served May 28, 1982.

DONE AND RECOMMENDED this 29th day of June, 1982, In Tallahassee, Florida.

R. L. CALEEN, JR. 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 29th day of June, 1982.

ENDNOTES

1/ Petitioner's and Respondent's Exhibits will be referred to as "P- ," and "R- ," respectively.

2/ The chemical content of these tablets was not proven at hearing.

3/ Respondent's motion for leave to file its proposed findings of fact by June 14, 1982, is granted.

COPIES FURNISHED:

Daniel C. Brown, Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Mark J. Proctor, Esquire Seville Tower

226 South Palafox Street Pensacola, Florida 32501

Charles A. Nuzum, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 82-001473

Orders for Case No: 82-001473