DEPARTMENT OF BUSINESS REGULATION) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
vs. ) CASE NO. 83-1185
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Arnold H. Pollock, held a formal hearing in this case on April 22, 1983, in Sarasota, Florida.
For Petitioner: Harold F. X. Purnell, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Harold H. Moore, Esquire
Whether Respondent's alcoholic beverage license should be suspended, revoked, or otherwise disciplined on the grounds stated in Petitioner's Notice to Show Cause dated April 13, 1983.
On April 13, 1983, the Division of Alcoholic Beverages and Tobacco (Division) issued a Notice to Show Cause why Respondent's license should not be disciplined because of alleged sales of marijuana and cocaine on the premises by employees and the maintaining of a public nuisance in violation of Sections 561.29(1)(a)7(c) 777.011, 777.04, 823.01, and 823.10, Florida Statutes (1981)
At the hearing, Petitioner presented the testimony of Marc Willingham, James G. Fulton, Peter Viana, Brenda Morton, and Keith Hamilton, and Petitioner's Exhibits 1 through 10. Respondent called Kenneth S. Goodman, Dave Burns, Henry Clemon, and Marc Willingham; testified in his own behalf; and introduced Respondent's Exhibits A and B.
At all times pertinent to this hearing, Respondent possessed alcoholic beverage license numbered 68-776, Series 2-COP, located at 1968 Unit A 27th Street, Sarasota, Florida, where he operated the Town Hall Restaurant.
During the last year and a half prior to April 13, 1983, officers of the Sarasota Police Department (SPD) have been called to Respondent's place of business on a frequent basis for various infractions of the law. Numerous narcotics arrests have been made outside of, but in the immediate vicinity of, the Respondent's restaurant, and there have been responses to other crimes, such as assaults and robberies, in the area.
Sgt. Peter Viana, SPD, works primarily in this area of town, which contains primarily black oriented businesses, and has smelled marijuana in Respondent's business place on several occasions. In addition, SPD Detective James Fulton related that police intelligence within that same time frame, the last year and a half, indicates repeated sales of narcotics both inside and outside Respondent's establishment.
Beverage Officer Keith Hamilton was assigned to an investigation of bars and restaurants in the area of Respondent's business during late March and early April 1, 1983. He is a qualified narcotics investigator and is familiar with the appearance, smell, and taste of such substances as marijuana and cocaine.
Early in the morning of March 22, 1983, Hamilton entered the Town Hall Restaurant and went up to the bar to order a beer. There he met "Precious," the barmaid/bartender, who is a male transvestite. During the course of the conversation, Hamilton asked Precious if he could do him a favor. When Precious agreed, Hamilton gave $10 to Precious, who then went over to a patron elsewhere in the room. When Precious returned to Hamilton, he gave him his change and a paper bag which contained a substance later analyzed at the laboratory of the Florida Department of Law Enforcement and determined to be 1.7 grams of marijuana. All tests referred to herein were accomplished by this laboratory.
Later that same morning, having returned to the Town Hall Restaurant, Hamilton asked Precious about the availability of cocaine. Precious said he did not know much about it, but would try. Hamilton gave $23 to Precious, who went over to another customer in the bar, made a purchase of some substance, returned to the bar, and after waiting on one other customer, transferred what he had purchased to Hamilton. This substance was subsequently tested and determined to be cocaine. During this second visit to the Town Hall, Hamilton observed other individuals in the building smoking what appeared to be marijuana cigarettes and what he believed to be two sales of the substance. He held this opinion because of the way the cigarettes were wrapped, burned, and held in the peculiar fashion of the marijuana "joint."
That same evening, March 22, 1983, Hamilton went to the Town Hall for the third time and this time met with another male transvestite bartender known as "Buffy." He asked Buffy about the possibility of getting some marijuana, but Buffy was reluctant and told him to deal direct. Therefore, Hamilton called over one of the other patrons who he knew to be a dealer and purchased what was subsequently tested and identified as 1.6 grams of marijuana. Again, at this time, he observed other patrons at the pool table in the building to be smoking what he believed was marijuana.
About 11:00 p.m. that same night, Hamilton made a fourth buy in the Town Hall Restaurant, this time through Precious, who followed the prior procedure and made the purchase from an unidentified black male. This time, the substance tested out to be 1.6 grams of marijuana.
When Hamilton went into the Town Hall again on March 23, 1983, Buffy was on duty and again refused to be the direct conduit for a purchase of marijuana. However, Hamilton contacted other patrons in the restaurant from whom he purchased two $6 bags of what was later tested and identified as marijuana. Again, at this time, no attempt was made to hide the marijuana, and Hamilton observed other people in the bar smoking what he believed to be marijuana.
Hamilton again returned to the Town Hall Restaurant on the morning of March 24, 1983. When he entered, he saw neither Precious nor Buffy and was, instead, approached by the Respondent. Hamilton ordered a chicken sandwich, but Smith told him no food was ready. He then asked Smith if he knew where he, Hamilton, could get some marijuana, but Smith said he did not. Hamilton started out of the building, but happened to notice that one of the employees who was mopping the floor was one of the same people from whom his prior purchases were made. On the spot, with Smith standing by, Hamilton then purchased another 1.7 grams of what was tested and identified as marijuana.
Later that day, March 24, 1983, Hamilton again went into the Town Hall, approached and was again rebuffed by Buffy, and instead made a purchase from some other unidentified individual in the bar. At that time, there were few patrons in the bar, and Hamilton observed the smoking of what appeared to him to be marijuana.
When Hamilton entered the bar on March 25, 1983, Precious refused to deal with him and suggested that he deal with another black male named "Georgia." After observing Georgia make sales of some substance to other patrons, Hamilton approached him and purchased what was later tested and found to be marijuana. During the entire time Hamilton was in the Town Hall Restaurant on this date, he observed the open smoking of what he identified as marijuana from the method of smoking and the smell.
Hamilton was again refused by Buffy ire the Town Hall on April 9, 1983. However, there was another patron at the bar who agreed to get him some stuff" and who then left the area. Shortly afterwards, a black male named "Sylvester" came into the restaurant, approached him, and sold him $20 worth of what was later tested and identified as cocaine. During this entire time, Buffy, an employee of Respondent, was standing behind and across the bar directly across from the sale--a distance of less than three feet.
Hamilton's instructions prior to the operation were to attempt to purchase drugs in not only this establishment but also in others in the area, and he did. He offered no inducements separate from the purchase, though an informant accompanying him on one visit offered sexual favors to Buffy.
A raid was conducted at the Town Hall on April 13, 1983, by agents of Petitioner and SPD. Marijuana was found on only one patron.
Respondent Smith has had his beverage license for this establishment for approximately 14 months, during which time he has had no problem with Petitioner or other law enforcement authorities. It is his practice when hiring
personnel to tell them to keep drugs out. His hours at the bar are from 9:00
a.m. to 5:00 p.m. on Monday through Thursday and from 11:00 p.m. to 3:00 a.m. on Friday and Saturday. While at this establishment, he is usually near the pool table. Though he does not recall being approached by Hamilton at the bar, he agrees that what Hamilton said transpired is probably correct, except for the sale of drugs.
Respondent has a good reputation in the community as a law-abiding citizen. Several witnesses who have been in the Town Hall at different times of the day and night claim not to have seen anyone using drugs there.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.
Petitioner has the authority to revoke or suspend the license of any licensee when it finds that either the licensee or its agent have violated certain laws of the state on the licensed premises. Section 561.29(1)(a), Florida Statutes (1981).
A showing of but one isolated violation combined with a showing that the licensee otherwise took pains to obey the law would not normally support a revocation. However, if the evidence shows that the laws are repeatedly and flagrantly violated by the employees, there arises an inference that the violations were either fostered, condoned, or negligently overlooked by the licensee, notwithstanding his absence from the premises when the violations took place; Pauline v. Lee, 147 So.2d 359 (2 DCA Fla. 1962); Lash, Inc. v. State, Department of Business Regulation, 411 So.2d 276 (3 DCA Fla. 1982). As a result of the above cases and others similar, the standard of simple negligence may be applied to the revocation of a beverage license. Bach v. Florida State Board of Dentistry, 378 So.2d 34 (1 DCA Fla. 1979). In that connection, a licensee has the obligation of maintaining sufficient intelligence with regard to his own establishment so as to know at least generally what his employees 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 (1 DCA Fla. 1979).
Here, Respondent is alleged to have repeatedly, either himself or through his employee, Precious, violated Section 893.13, Florida Statutes (1981), by the felony sale of marijuana and thereby also violated Section 561.29(1)(a), Florida Statutes (1981).
Section 893.13(1)(a)2, Florida Statutes (1981) states: (1)(a) Except as authorized by this
chapter and chapter 500, it is unlaw- ful for any person to sell, manufac- ture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance.
Any person who violates this provi- sion with respect to:
2. A controlled substance
named or described in s. 893.03(1)(c), (2)(c) , (3) , or (4) is guilty of a
felony of the third degree, punishable as provided in s. 775.082, s. 775.083,
and s. 775.084. Section 561.29(1)(a), Florida Statutes (1981), states:
(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:
(a) 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 vio- lation of any municipal or county regu- lation in regard to the hours of sale, service, or consumption of alcoholic beverages, or engaging in or permitting disorderly conduct on the licensed prem- ises 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.
There is no doubt that Precious procured marijuana for Officer Hamilton as listed in Allegations 1 and 4 of the Notice to Show Cause and that those transfers constituted a violation of Section 561.29(1)(a).
Sections 777.011 and 777.04(3), Florida Statutes (1981), state:
Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in
the first degree and may be charged, convicted, and punished as such, whether he is or is not actually or constructively present at the commis- sion of such offense.
(3) Whoever shall agree, conspire, combine, or confederate with another person or persons to commit any
offense commits the offense of crimi- nal conspiracy and shall, when no express provision is made by law for the punishment of such conspiracy, be punished as provided in subsection (4).
Again, there is no doubt that Precious, on March 26, 1983, refused to make this purchase for Hamilton, but did conspire with him to violate the drug law by directing him to a drug dealer in the bar by the name of "Georgia," from whom Hamilton purchased marijuana. This constitutes a violation of Section 561.29(1)(a) as outlined in Allegation 8.
In Allegation 2 of the Notice, Respondent's employee Precious is alleged to have made a felony sale of cocaine to Hamilton. Hamilton's testimony establishes the commission of that offense in violation of Section 893.03(2)(a)4, Florida Statutes)(1981), which also constitutes a violation of Section 561.29(1)(a)
The evidence in the testimony by Officer Hamilton, that he purchased marijuana from the janitor in Respondent's business place on March 24, 1983, with Respondent standing by, though this is denied by Respondent, in light of all the evidence, establishes a violation as alleged in Allegation 6.
With regard to Allegations 3, 5 and 7, the evidence is clear that Buffy steadfastly refused to participate in any purchases of drugs by Officer Hamilton. There is evidence that Buffy was approached with much persuasion, considering his orientation, and offered other nonmonetary inducements by Hamilton's companion on one occasion. Yet, no contacts were made by Buffy, nor were any sales made Buffy merely advised Hamilton to look elsewhere, and this cannot fairly constitute violations in those incidents.
The ninth allegation of the Notice to Show Cause refers to the use of the premises as a place resorted to by persons using controlled substances in violation of Section 893.13(2)(a)5, Florida Statutes (1981), which makes it unlawful for any person:
To keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place which is resorted to by persons using controlled substances in viola- tion of this chapter for the purpose
of using these substances, or which is used for keeping or selling them in violation of this chapter.
The testimony of Officer Hamilton that he, on several occasions, such as twice on March 22, 23, 24, and 26, 1983, observed other patrons smoking what he recognized as marijuana in the bar, and on at least one occasion witnessed the transfer of it readily, supports a conclusion that this statutory provision was violated.
Finally, in Allegation 10, Respondent is alleged to have maintained a public nuisance on the premises by allowing people to use it for using, keeping, selling, or delivering controlled substances on it in violation of Sections
and 823.10, Florida Statutes (1981). These state:
823.01:
All nuisances which tend to annoy the community or injure the health of the citizens in general, or to corrupt the public morals, shall be misdemeanors of the second degree, punishable as pro- vided in s. 775.083.
Any nuisance which tends to the immediate annoyance of the citizens in general, or is manifestly injuri- ous to the public health and safety, or tends greatly to corrupt the manners and morals of the people, may
be removed and suppressed by the order of the county court judge of the county, founded upon the verdict of 12 house- holders of the same, who shall be summoned, sworn, and impaneled for
that purpose, which order shall be directed to and executed by any sheriff of the county; and an indict- ment or information shall lie for the same.
823.10:
Any store, shop, warehouse, dwelling house, building, vehicle, ship, boat, vessel, aircraft, or any place what- ever, which is visited by persons for the purpose of unlawfully using any substance controlled under chapter 893 or any drugs as described in chapter 500, or which is used for the illegal keeping, selling, or delivering of the same, shall be deemed a public nuisance. No person shall keep or maintain such public nuisance or aid and abet another in keeping or maintaining such public nuisance.
Clearly, the marijuana and cocaine sold, used, delivered, or kept in the Town Hall Restaurant are controlled substances, and the statutory provisions (cited above cover this situation. Consequently, this conduct constitutes a violation of Section 561.29(1)(a) as well and subjects Respondent to disciplinary action.
The parties have submitted posthearing legal memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.
That Respondent's alcoholic beverage license be suspended for one year and that he pay a fine of $100 for each violation as alleged in Allegations 1, 2, 4, 6, 8, 9 and 10 in the Notice to Show Cause dated April 13, 1983.
RECOMMENDED this 24th day of May, 1983, in Tallahassee, Florida.
ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1983.
Harold F. X. Purnell, Esquire General Counsel
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Harold H. Moore, Esquire Post Office Box 4311 Sarasota, Florida 33578
Mr. Gary R. Rutledge Secretary
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Mr. Harold M. Rasmussen Director
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
