Judges: R. T. CARPENTER
Agency: Department of Business and Professional Regulation
Latest Update: Dec. 03, 1982
Summary: Recommend revocation where licensee was negligent in supervising bar, allowing sale of cannabis and delegating management to others.
82-2729.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 82-2729
) EUGENE NORRIS, t/a JOE'S TAVERN, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing on November 2, 1982, in Jacksonville, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter.
For Petitioner: James N. Watson, Jr., Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: No appearance
This matter arose on Petitioner's Notice to Show Cause/Administrative Complaint which alleges the following:
On or about the 14th of October 1981, you, Eugene Norris, licensed under the beverage laws, did unlawfully carry a concealed firearm, to wit: .38 caliber, RG model 40, revolver, in violation of Section 790.01(2), Florida Statutes, within Section 561.29, Florida Statutes.
On or about the 22nd day of January 1982, you, Eugene Norris, licensed under the beverage laws, and/or your agent, servant or employee did unlawfully keep a place where controlled substance, to wit: cannabis and pills, is illegally kept, sold or used, contrary to Section 823.10, Florida Statutes, within Section 561.29, Florida Statutes.
On or about the 25th day of February, you, Eugene Norris, licensed under the beverage laws, and/or your agent, servant or employee did unlawfully keep a place where a controlled substance, to wit: cannabis, is illegally kept, sold or used, contrary to
Section 823.10, Florida Statutes, within Section 561.29, Florida Statutes.
On or about the 4th day of March 1982, you, Eugene Norris, licensed under the beverage laws, and/or your agent, servant or employee did unlawfully keep a place where a controlled substance, to wit: cannabis, is illegally kept, sold or used, contrary to Section 823.10, Florida Statutes, within Section 561.29, Florida Statutes.
On or about the 11th day of March 1982, Eugene Norris, licensed under the beverage laws, and/or your agent, servant or employee did unlawfully keep a place where a controlled substance, to wit: cannabis, is illegally kept, sold or used, contrary to Section 823.10, Florida Statutes, within Section 561.29, Florida Statutes.
On or about the 23rd day of March 1982, you, Eugene Norris, licensed under the beverage laws, and/or your agent, servant or employee did unlawfully keep a place where a controlled substance, to wit: cannabis, is illegally kept, sold or used, contrary to Section 823.10, Florida Statutes, within Section 561.29, Florida Statutes.
On or about the 25th day of March 1982, you, Eugene Norris, licensed under the beverage laws, and/or your agent, servant or employee did unlawfully keep a place where a controlled substance, to wit: cannabis, is illegally kept, sold or used, contrary to Section 823.10, Florida Statutes, within Section 561.29, Florida Statutes.
On or about the 27th day of March 1982, you, Eugene Norris, licensed under the beverage laws, and/or your agent, servant or employee did unlawfully keep a place where a controlled substance, to wit: cannabis, is illegally kept, sold or used, contrary to Section 823.10, Florida Statutes, within Section 561.29, Florida Statutes.
On or about the 9th day of April 1982, you, Eugene Norris, licensed under the beverage laws, and/or your agent, servant or employee did unlawfully keep a place where a controlled substance, to wit: cannabis, is illegally kept, sold or used, contrary to Section 823.10, Florida Statutes, within Section 561.29, Florida Statutes.
On or about the 22nd day of January 1982, you, Eugene Norris, licensed under the beverage laws, and/or your agent, servant or employee did unlawfully have in your possession on your licensed premises, alcoholic beverages, to wit: vodka and wine, not authorized by law to be sold under your license, contrary to Section 562.02, Florida Statutes.
On or about the 29th day of March 1982, investigation revealed that you, Eugene Norris, licensed under the beverage laws, had relinquished control, operation and responsibility of your licensed premises to Bruce Norris, contrary to Administrative Rule 7A-3.17.
FINDINGS OF FACT
Respondent holds alcoholic beverage license No. 26- 1719, Series 1-COP. This license authorizes the sale of alcoholic beverages at 402 E. Third Street, Jacksonville, Florida.
Petitioner presented the testimony of Jacksonville police officers, sheriff's deputies, and beverage officers who conducted an undercover investigation of the licensed premises on the dates indicated in the Notice to Show Cause/Administrative Complaint. Their testimony supported all allegations involving cannabis set forth in said complaint. Petitioner's Exhibit Two contains Florida Department of Law Enforcement laboratory reports obtained by the witnesses and which confirm that substances they secured on the licensed premises were, in fact, cannabis.
The cannabis transactions were conducted openly in the licensed premises, and undercover investigators had no difficulty making such purchases. On March 11, 1982, the bartender directed an undercover investigator to a patron who had cannabis for sale and who made such sale to the investigator. He also observed the open exchange and use of cannabis among various customers.
Respondent was convicted of the concealed firearm charge contained in Count 1, but there was no evidence that this conviction was associated with his operation of the licensed business. Likewise, Count 2 insofar as it refers to "pills" was not shown to have involved any violation of beverage laws or any other statute or rule.
Count 10 concerning alcohol not authorized by the license was found in the possession of a patron. There was no evidence to indicate that Petitioner was aware or should have been aware of this violation.
On March 29, 1982, Petitioner's beverage agent interviewed Bruce Norris who appeared to be in charge of the licensed premises. Bruce Norris stated that he was the licensee's brother, that he had taken over the business in late 1981, and had operated it since that time. The waitress-bartender, Joanne McCarthy, stated that she did not know the licensee, Eugene Norris, but had been hired and was paid by Bruce Norris.
CONCLUSIONS OF LAW
Section 561.29, F.S., provides in part:
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:
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 or of the United States, or violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages, or engaging in or permitting disorderly conduct on the licensed premises, or permitting another on the licensed premises to violate any of the laws of this state or of the United States; except that whether or not the licensee or his or its agents, officers, servants, or employees have been convicted in any criminal court of any violation as set forth in this paragraph shall not be considered in proceedings before the division for suspension or revocation of a license except as permitted by chapter 92 or the rules of evidence.
Violation by the licensee or, if a corporation, by any officers thereof, of any laws of this state or any state or territory of the United States.
Maintaining a nuisance on the licensed premises.
* * *
(e) Violation by the licensee, or, if a corporation, by any officer or stockholder thereof, of any rule or rules promulgated by the division in accordance with the provisions of this chapter or of any such rule or law by any agent, servant, or employee of the licensee on the licensed premises or in the scope of such employment.
The above provisions empower Petitioner to revoke or suspend a beverage license for violation by the licensee or his employees of a federal or state law or applicable ordinance. Violation of the beverage statute or rules by the licensee may also result in fines of up to $1,000 per transaction.
These 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/
Cannabis is a controlled substance under Chapter 893, F.S., which makes possession or use of this substance illegal excent in circumstances not applicable here. Section 823.10, F.S., declares as a public nuisance any place which is visited by persons for the purpose of unlawfully using such substance. The frequency and openness of cannabis use and sales on the licensed premises constitutes a public nuisance within the meaning of these provisions. The frequency of such misconduct also constitutes negligence on the part of the licensee in the operation of his business. Respondent is therefore guilty as charged in Counts 2 (cannabis charge only) and Counts 3 through 9 of the Notice to Show Cause/Administrative Complaint.
Rule 7A-3.17, F.A.C., requires that the licensee retain control of the operation of the business. Respondent's turnover of the business for an extended period of time violates this provision as charged in Count 11 of the Notice to Show Cause/Administrative Complaint.
The Count 1 charge was not shown to be applicable to operation of the licensed premises and the Count 10 charge appears to have been an isolated incident. These charges should therefore be dismissed.
RECOMMENDATION
From the foregoing, it is RECOMMENDED:
That Petitioner enter a Final Order revoking Respondent's alcoholic beverage license.
DONE and ENTERED this 3rd day of December, 1982, 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 3rd day of December, 1982.
ENDNOTE
1/ G&B of Jacksonville, Inc. v. State, 371 So.2d 138; 371 So.2d 138; 381 So.2d
1074 (Fla. 1st DCA 1979); Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962). 2/ Id.
COPIES FURNISHED:
James N. Watson, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Mr. Eugene Norris
4311 Portsmouth Avenue
Jacksonville, Florida 32209
Charles A. Nuzum, Executive Director Division of Alcoholic Beverages
and Tobacco
725 South Bronough Street Tallahassee, Florida 32301
Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Docket for Case No: 82-002729
Orders for Case No: 82-002729
| Issue Date |
Document |
Summary |
|
Dec. 03, 1982 |
Recommended Order
|
Recommend revocation where licensee was negligent in supervising bar, allowing sale of cannabis and delegating management to others.
|
