STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-1150

) WALTER L. VANN & LEROY M. ALLEN, ) d/b/a THE CHOSEN FEW MOTORCYCLES ) CLUB, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on April 21, 1983, based upon an Emergency Order of Suspension and Notice to Show Cause dated April 13, 1983, charging violations of controlled substances laws and charging the licensees with operating a public nuisance.

APPEARANCES

For Petitioner: Harold F.X. Purnell, Esquire

General Counsel

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

For Respondent: Alexander G. Paderewski, Esquire

45 Links Avenue Sarasota, Florida 33577

ISSUE

The issue posed for decision herein is whether or not the Respondent's alcoholic beverage license should be suspended, revoked, or otherwise disciplined on the grounds stated in the Notice to Show Cause filed herein dated April 13, 1983.

BACKGROUND

On April 13, 1983, the Division of Alcoholic Beverages and Tobacco (Division or Petitioner) issued a Notice to Show Cause why the Respondent's license should not be disciplined because of alleged sales and use of marijuana and controlled substances while on the licensed premises; and that because of such sales and use, the premises constituted a public nuisance. (Sections 561.29(1)(a), 823.01 and 823.10, Florida Statutes (1981).)

At the hearing, Petitioner presented the testimony of Mark Willingham, Anthony Keith Zibernia, James Fulton, and Keith Hamilton. Petitioner also introduced documentary evidence received as Petitioner's Exhibits 1 through 6. Respondent presented the testimony of Walter L. Vann, Leroy M. Allen, Mose Williams, and Gloria Williams, and introduced Respondent's Exhibit 1. In rebuttal, the Petitioner presented the testimony of confidential informant Harold Sutton.

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, posthearing memoranda 1/ and the entire record compiled herein, I make the following relevant:

FINDINGS OF FACT

1. During times material herein, The Chosen Few Motorcycle Club (herein Respondent) held alcoholic beverage License 68-629, Series 2-COP, issued in the name of Walter L. Vann and Leroy M. Allen. The premises is located at 1782 27th Street, Sarasota, Sarasota County, Florida.

   
   

2. On April 13, 1983, the Division issued an Emergency Order of Suspension of The Chosen Few Motorcycle Club beverage license together with a Notice to Show Cause charging that employees and patrons of The Chosen Few engaged in numerous controlled substance transactions and use of controlled substances while on the licensed premises. Further, it was alleged that because of such controlled substance sales and use, the premises constituted a public nuisance.

   
   

3. Respondent's place of business is well known to the intelligence unit of the Sarasota Police Department as a place where sales of narcotics and their use are conducted inside the premises. This knowledge has been gained from intelligence reports and investigations conducted by undercover agents during the period March 21, 1983, to April 9, 1983. (Testimony of Sarasota Police Department Sergeant Jim Fulton and Beverage Officer Keith Hamilton.)

   
   

4. Beverage Officer Hamilton was assigned to an investigation of bars and restaurants in the area of Respondent's tavern during late March and early April, 1983. Officer Hamilton has received detailed training in the detection of controlled substances, including marijuana, and has participated in numerous drug investigations since his employment by the Division as a Beverage Officer. Officer Hamilton is a qualified narcotics investigator and is familiar with the appearance and smell of cocaine and marijuana.

   
   

5. At approximately 11:20 p.m. on March 21, 1983, Officer Hamilton entered The Chosen Few and ordered a beer. Officer Hamilton struck up a conversation with an individual who identified himself as a part-time employee of The Chosen Few and went by the street name of "Freak." Freak openly sold to Officer Hamilton a capsule which was later identified by the Florida Department of Law Enforcement (FDLE) crime laboratory as cocaine. Freak transferred the capsule of cocaine in an overt manner from a brown medicine bottle which he had on his person and which contained numerous such capsules to c Officer Hamilton in exchange for $10.00. The item was properly bagged, sealed and receipted by Officer Hamilton, and thereafter submitted to the FDLE crime laboratory. Analyst Anthony Keith Zibernia identified the capsule as cocaine. Prior to analyzing the substance, Analyst Zibernia noted that that capsule, as with all other evidence which comes into the FDLE crime laboratory, was properly taped/sealed and tagged upon submission to the laboratory. (Petitioner's Exhibit 2.)

6. While on the licensed premises of The Chosen Few on March 21, 1983, Officer Hamilton observed the open smoking of marijuana by patrons. Officer Hamilton based his testimony on the aroma of the substance being smoked by the patrons and by the manner in which the cigarettes were being handled and smoked by the patrons.

   
   

7. On March 22, 1983, at approximately 9:00 p.m. Officer Hamilton returned to the licensed premises of The Chosen Few and inquired of the on-duty bartender, who identified himself as "Mose," as to the availability of marijuana. Mose advised Officer Hamilton that he could obtain such substance for him and Officer Hamilton in turn gave Mose a $10.00 bill. Mose left from the bar area and went among the patrons of the establishment. Upon his return, he handed to Officer Hamilton, from behind the bar, a manila envelope containing a substance, later analyzed by the FDLE crime laboratory and found to contain cannabis, together with $4.00 in change. The substance purchased from Mose, which Officer Hamilton bagged, sealed, and receipted, was submitted to the FDLE crime laboratory. (Petitioner's Exhibit 1 and testimony of Analyst Anthony Zibernia)

   
   

8. Officer Hamilton returned to The Chosen Few premises at approximately 8:00 p.m. on the evening of March 23, 1983. At that time, he inquired of the on-duty barmaid who was then serving alcoholic beverages to patrons as to the availability of marijuana. That barmaid pointed out to Officer Hamilton an individual among the patrons from whom marijuana could be obtained. Officer Hamilton called the patron pointed out by the barmaid over to the bar and inquired as to the availability of marijuana. That individual advised that he had some for sale and thereupon sold, in an overt transaction at the bar, a manila envelope, containing what was later identified by the FDLE crime laboratory as marijuana, in exchange for $10.00. The on-duty barmaid had an unobstructed view of the entire transaction. Following the purchase of the marijuana, Officer Hamilton then purchased from the barmaid a pack of rolling paper and proceeded to roll one marijuana cigarette on the bar in front of the barmaid without objection from her. (Petitioner's Exhibit 3)

   
   

9. Officer Hamilton next returned to the licensed premises of The Chosen Few on the afternoon of March 24, 1983, at approximately 3:30 p.m. Officer Hamilton approached the bar and inquired of the on-duty barmaid who was working behind the bar as to the availability of marijuana. She advised Officer Hamilton to check with patrons at the pool table for marijuana. Officer Hamilton, as instructed, inquired as to the availability of marijuana from the patrons and successfully purchased from a patron, in an open transaction, a substance in a manila envelope, later identified by the FDLE crime laboratory as being marijuana, in exchange for $6.00. The barmaid had an unobstructed view of this transaction. Immediately upon the purchase by Officer Hamilton, he observed the barmaid rolling a marijuana cigarette on the bar which she proceeded thereafter to smoke. Based on the manner in which the substance was rolled and the way in which it was smoked, Officer Hamilton concluded that it was, in fact, marijuana.

   
   

10. The item purchased by Officer Hamilton on the afternoon of March 24, 1983, was properly bagged, sealed, receipted and, following the submission to the FDLE crime laboratory, was determined by Analyst Anthony Zibernia to contain cannabis. (Petitioner's Exhibit 4.)

    
    

11. Officer Hamilton returned to the licensed premises of The Chosen Few at approximately 9:00 p.m. on March 24, 1983, and again observed Mose serving as a bartender. At approximately 9:00 p.m. Officer Hamilton inquired of Mose

    as to the availability of marijuana. Mose advised he would check and Officer Hamilton gave him $10.00. Mose exited from behind the bar and returned approximately two minutes later to the area behind the bar , transferred to Officer Hamilton over the top of the bar a manila envelope containing a substance, later identified by Analyst Zibernia to be marijuana, with $4.00 in change. The transaction was made in an open manner add the substance purchased by Officer Hamilton was properly bagged, sealed, receipted and submitted to the FDLE crime laboratory. As stated, it was analyzed and found by Analyst Zibernia to contain cannabis. (Petitioner's Exhibit 5)

    
    

12. While on the premises of The Chosen Few on the evening of March 24, Officer Hamilton again observed the use of marijuana by patrons on the premises. Such use by the patrons was completely open, without any attempt on the part of the patrons to hide such use.

    
    

13. Officer Hamilton next returned to the licensed premises of The Chosen Few on the evening of April 9, 1983 While seated at the bar he inquired of a patron as to the availability of marijuana. The negotiations for the purchase of marijuana were made at the bar in front of the on-duty bartender, who was later identified by Officer Hamilton as one of the licensees, Leroy Allen. The negotiations were carried on in a normal conversational tone immediately in front of Allen. Officer Hamilton purchased from a patron, in an open manner, one clear baggie, later analyzed by the FDLE crime laboratory and found to contain cannabis, in exchange for $6.00. The substance was bagged, sealed, receipted and submitted to the FDLE crime laboratory for analysis by Analyst Anthony Zibernia. (Petitioner's Exhibit 6)

    
    

    Respondent's Defense

    
    

14. Respondent presented the testimony of licensees Walter Vann and Leroy Allen. Both licensees testified that they instructed their employees that no drugs were to be used on the premises and instructed those patrons who were observed using marijuana to leave the premises. Licensee Allen could not recall any discussion of marijuana sales by Officer Hamilton, nor could he recall any drugs ever being sold on the premises. Licensee Allen and Mose Williams stated that they "cannot stand the smell of marijuana."

    
    

15. Mose Williams denied making any sales of marijuana to Officer Hamilton and "throws out patrons he finds using marijuana." Additionally, like bartender Mose Williams, barmaid Gloria Williams also claims to throw out any patrons she observes using marijuana and denied assisting Officer Hamilton, or any patron in their effort to purchase marijuana at The Chosen Few Motorcycle Club.

    
    

    Rebuttal

    
    

16. Petitioner presented the testimony of confidential informant, Harold Sutton. Informant Sutton accompanied Officer Hamilton at The Chosen Few and observed the occasions when Officer Hamilton purchased marijuana from Mose Williams and the on-duty barmaid. Informant Sutton also observed the on-duty barmaid roll and smoke a marijuana cigarette at the bar on March 24, 1983.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

18. The authority of the Division of Alcoholic Beverages and Tobacco is derived from Chapter 561, Florida Statutes (1981).

    
    

19. The Petitioner (Division) has the authority to revoke or suspend a license of any licensee when it finds that either the licensee or its agents have violated certain state laws on the licensed premises. Section 569.29(1)(a) Florida Statutes (1981). A showing of repeated and flagrant violations of the licensing laws by the licensee, or its agents, is sufficient proof to support a revocation petition notwithstanding a licensee's absence from the premises or claimed lack of knowledge. See, for example, Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962); Lash, Inc. v. State, Department of Business Regulation, 411 So.2d 276 (Fla. 3d DCA 1982). In that connection, a licensee has the obligation to maintain sufficient intelligence with regard to his establishment so as to know, in a general sense, what its employees and agents are doing, and his failure to do so constitutes a lack of reasonable diligence and a failure of proper management. G & B of Jacksonville, Inc. v. State, Department of Business Regulation, 371 So.2d 138 (Fla. 1st DCA 1979)

    
    

20. Section 893.03, Florida Statutes, defines controlled substances. Cannabis is listed as a controlled substance in subsection 893.03(1)(c)3, Florida Statutes and cocaine is listed as a controlled substance in subsection 893.03(2)(a)4, Florida Statutes. Subsection 893.13(1)(a)2, Florida Statutes, makes it a felony of the third degree to sell any controlled substance described in subsection 893.03(1)(c), Florida Statutes (1981) [cannabis]. Subsection 893.13(1)(a)1, Florida Statutes, makes it a felony of the second degree to sell any controlled substance [cocaine] described in subsection 093.03(2)(a), Florida Statutes (1981).

    
    

21. Evidence herein clearly establishes that Respondent, through its agent, Mose Williams, sold marijuana in violation of Section 893.13, Florida Statutes, to Officer Hamilton on March 22 and 24, 1983, in violation of subsection 561.29 (1)(a), Florida Statutes (1981)

    
    

22. Evidence further establishes that Respondent, through its agents, permitted felony sales of marijuana and cocaine to occur on the licensed premises on March 21, 22, 23, 24 and April 9, 1983.

    
    

23. Evidence herein also establishes that on March 23, 1983, Respondent, through its agent (an unidentified black female employee serving as a barmaid) violated subsection 561.29 (1)(a), Florida Statutes (1981) by aiding or conspiring with an unidentified black male patron to sell or deliver a felony amount of marijuana on its licensed premises in violation of Sections 893.13 and 777.011, Florida Statutes.

    
    

24. Respondent, at its licensed place of business, between March 21, 1983 and April 13, 1983, maintained the licensed premises as a place resorted to by persons using controlled substances in violation of Chapter 093, Florida Statutes (1981), or for the purpose of using said substances or which is used for keeping or selling said substances inviolation of Chapter 893, Florida Statutes (1981) and Sections 893.13 and 569.29(1)(a), Florida Statutes (1981).

    
    

25. Respondent, at its licensed premises herein, between the dates March 21, 1983,and April 13, 1983, has maintained a public nuisance, to wit: a place which is visited by persons for the purpose of unlawfully using, keeping, selling, and/or delivering controlled substances in violation of Chapter 893, Florida Statutes (1981), which is a derivative violation of [1] Sections 823.10

and 561.29(1)(c) , Florida Statutes, and [2] Sections 823.01 and 561.29(1)(a), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That Respondent's alcoholic beverage license No. 68-629, Series 2-COP, be suspended for a period of one hundred eighty (180) days and that Respondent pay a fine of two hundred fifty dollars ($250.00) for each of seven (7) violations alleged in the Notice to Show Cause filed herein dated April 13, 1983.

RECOMMENDED , this 23rd day of June, 1983, at Tallahassee, Florida.

JAMES E. BRADWELL, 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 23rd day of June, 1983.

ENDNOTE

1/ The parties were afforded leave through April 25, 1983, to submit posthearing memoranda supportive of their respective positions. Petitioner submitted a posthearing memorandum which was considered by me in preparation of this Recommended Order. To the extent that the proposed findings, etc. are not incorporated in this Recommended Order, they have been rejected as being either irrelevant, immaterial, or not otherwise supported by record evidence.

COPIES FURNISHED:

Harold F. X. Purnell, Esquire General Counsel

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

Alexander G. Paderewski, Esquire

45 Links Avenue Sarasota, Florida 33577

Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Howard M. Rasmussen, Director

Division of Alcoholic Beverages & Tobacco Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 83-001150

Orders for Case No: 83-001150