STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3399

) RONALD WAYNE DIAMOND and SUSAN ) JOYCE SAIIA, t/a SUSAN'S LAS OLAS ) SEAFOOD MARKET, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, R. L. Caleen, Jr., a Hearing Officer with the Division of Administrative Hearings, conducted a hearing in this case on May 12, 1983, in Lauderhill, Florida.

APPEARANCES

For Petitioner: John A. Boggs, Esquire

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

For Respondent Maurice Graham, Esquire

Susan Joyce 2161 East Commercial Boulevard, Suite 2 Saiia: Ft. Lauderdale, Florida 33308

Ronald Wayne

Diamond: No appearance. ISSUE

Whether Respondents' alcoholic beverage license should be disciplined on charges that Respondent Ronald Diamond unlawfully trafficked and possessed controlled substances on the licensed premises and was convicted of two felonies relating to controlled substances.

BACKGROUND

By Notice to Show Cause dated July 20, 1982, Petitioner Division of Alcoholic Beverages and Tobacco ("DABT") charged Respondents Ronald Wayne Diamond and Susan Joyce Saiia t/a Susan's Las Olas Seafood Market with unlawful trafficking and possession of controlled substances (by Ronald Diamond) and two felony convictions of Ronald Diamond relating to controlled substances. As penalty, DABT sought suspension or revocation of Respondents' alcoholic beverage license or imposition of a civil penalty.

Respondent Susan Joyce Saiia disputed the charges and requested a hearing; Respondent Ronald Diamond did neither.

On December 15, 1982, his case was forwarded to the Division of Administrative Hearings for assignment of a hearing officer. The hearing was thereafter set for April 19, 1983, then-- on Respondent's motion--continued and reset for May 12, 1983.

At hearing, DABT Exhibit Nos. 1-3 were received into evidence. The parties presented testimony of Beverage Officer Richard A. Boyd and Susan Saiia.

DABT filed its proposed recommended order by May 26, 1983. Although Respondents' had until June 26, 1983 to submit their proposed recommended order, they did not do so. No transcript of the hearing has been filed.

FINDINGS OF FACT

Based on the evidence presented at hearing, the following facts are determined:

1. At all times material to the charges, Ronald Wayne Diamond and Susan Joyce Saiia owned and operated a partnership trading as Susan's Las Olas Seafood Market at 1404 E. Las Olas Boulevard, Fort Lauderdale, Florida ("the licensed premises") On the licensed premises, they sold alcoholic beverages under the authority of alcoholic beverage license No. 16-3029, Series 2-APS.

   
   

2. On January 17 or 18, 1982,and on January 19, 1982, Broward County Sheriff's Department Detective Fernandez entered the licensed premises in an undercover capacity and negotiated with Respondent Ronald Diamond for the sale and delivery of cocaine and cannabis. Respondent Susan Saiia was present and aware of these negotiations, although she did not actively participate in them. On one of these occasions, she warned Respondent Diamond to be careful, that she had seen someone in the back alley who looked like he was wearing a recording device.

   
   

3. On January 20, 1982, Respondent Diamond was arrested on charges of unlawful trafficking in cocaine and possessing cannabis in violation of Sections 893.135(1)(b) and 893.13(1)(e), Florida Statutes. He was taken to the licensed premises where a search warrant was executed and two ounces of marijuana were found in an office file cabinet. (Petitioner's Exhibit No. 2)

   
   

4. On May 6, 1982, the Circuit Court of the Seventeenth Judicial Circuit, adjudging Respondent Diamond guilty of these felonies, sentenced him to fifteen years in prison and fined him $250,000 for trafficking in cocaine. He was sentenced to an additional five years for the possession of cannabis. (Petitioner's Exhibit No. 3)

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. DABT is empowered to revoke or suspend an alcoholic beverage license upon a determination that the licensee has violated a state law on the licensed premises. Section 561.29(1)(a) Fla.Stat. (1981). An alcoholic beverage license may also be revoked when the existing licensee's qualifications become

   impaired so that he does not qualify for the issuance of a new license. Section 561.15, Fla.Stat. (1981). Finally, Section 561.15(2) prohibits the issuance of a license to any person who has been convicted in the past fifteen years of any felony in this state.

   
   

7. The record in this case convincingly establishes that on January 17, or

   18 and January 19, 1982, Respondent Diamond, with Respondent Saiia's knowledge, unlawfully negotiated the sale and delivery of marijuana and cocaine while on the licensed premises; that on January 20, 1982, cannabis, a controlled substance, was found on the licensed premises; and that on May 6, 1932, Respondent Diamond was convicted of committing two felonies in this state. Accordingly, pursuant to Sections 561.29(1) and 561.15 Florida Statutes (1981) Respondents' jointly-held alcoholic beverage license may be disciplined. Revocation is warranted, since the two felony convictions impair the qualifications of Respondent Diamond to retain the license at issue.

   
   

8. DABT filed proposed findings of fact. To the extent that they are incorporated herein, they are adopted; otherwise they are rejected as unsupported by the evidence or unnecessary to resolution of the issue presented.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That Respondents' alcoholic beverage license No. 16-3029, Series 2-APS, be revoked for multiple violations of the Beverage Law.

DONE and ORDERED this 12th day of July, 1983, 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 12th day of July, 1983.

COPIES FURNISHED:

John A. Hoggs, Esquire Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32301

Maurice Graham, Esquire Suite 2

2161 E. Commercial Blvd.

Ft. Lauderdale, Florida 33308

Howard M. Rasmussen 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: 82-003399

Orders for Case No: 82-003399