STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-1607

)

PERNELL CRANE, d/b/a CRANE'S )

LOUNGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on June 22, 1983, in Jacksonville, Florida.

APPEARANCES

For Petitioner: James N. Watson, Jr., Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Joseph S. Farley, Jr., Esquire

350 East Adams Street Jacksonville, Florida 32202

BACKGROUND

By Notice to Show Cause issued on November 18, 1982, Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, has alleged that Respondent, Pernell Crane, d/b/a Crane's Lounge, was guilty of six violations of Section 561.29, Florida Statutes, for which disciplinary action against his beverage license should be taken.

On December 29, 1982, Respondent requested a formal hearing to contest the allegations pursuant to Subsection 120.57(1), Florida Statutes. The matter was referred by Petitioner to the Division of Administrative Hearings on May 25, 1983, with a request that a hearing officer be assigned to conduct a formal hearing.

By notice of hearing dated June 2, 1983, the matter was scheduled for a final hearing on June 22, 1983, in Jacksonville, Florida. At the final hearing the parties stipulated to certain parts of the beverage officers' case reports which have been received in evidence as Hearing Officer's Exhibit l. They also stipulated that the Respondent held a valid beverage license issued by the Division when the alleged violations occurred, that the substances alleged to be illegal in counts 1, 3 and 5 of the notice to show cause were marijuana, that

Respondent's son was in charged of the licensed premises, that Respondent was not present when the alleged violations occurred, and that the allegations in the notice to show cause were true insofar as Respondent's son was concerned. Because of the foregoing stipulations, Petitioner presented no witnesses.

Respondent testified on his own behalf.

There was no transcript of hearing in this proceeding. Although the parties were given an opportunity to file proposed findings of fact and conclusions of law, none were timely filed.

The issue herein is whether Respondent is guilty of the allegations in the Notice to Show Cause and should have his beverage license disciplined.

Based upon all the evidence the following Findings of Fact are determined: FINDINGS OF FACT

1. Respondent, Pernell Crane d/b/a Crane's Lounge, is the holder of license number 26-2026, license series 2-COP, issued by Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division) . The license authorizes Respondent to operate an establishment at 308-310 West Eighth Street, Jacksonville, Florida to sell beer and wine with consumption on premises.

   
   

2. On the evening of August 20, 1982, Division Beverage Officer Junious visited Respondent's licensed premises for the purpose of purchasing illegal drugs. After paying a cover charge, the officer went to the bar and ordered a beer from the bartender, Pernell Crane, Jr., who was Respondent's son. While standing at the bar, he observed two unidentified black males purchase what appeared to be "nickle" bags of marijuana from the bartender. Officer Junious then asked the bartender where he could buy some grass", and was told by Crane Jr., "I got some grass, how much do you want?" The bartender then reached under the bar and pulled out a manilla envelope. Upon paying the bartender $5.00, Junious received the envelope. A laboratory analysis performed at a later date confirmed that the envelope did indeed contain 1.4 grams of cannabis. The transaction occurred at approximately 12:15 a.m. on August 21, 1982.

   
   

3. On or about August 29, 1982 Officer Junious returned to Respondent's licensed premises around 12:37 a.m. After ordering a beer from Pernell Crane, Jr., he asked Cassius, the doorman, where he could purchase some marijuana. Cassius was another son of Respondent. Cassius told Junious to see Crane, Jr. Junious then approached Crane, Jr. and asked if he had any "smokes". Crane, Jr. asked how much he wanted and Junious replied he needed a "nickle" bag. Crane, Jr. then removed a drawstring bag partly out of the inside of his waist band and took out a manilla envelope. Junious paid Crane, Jr. $5.00 for the manilla envelope. Its contents were later determined by laboratory analysis to contain 1.4 grams of marijuana.

   
   

4. On or about September 29, 1982, Beverage Officers Junious and Cunningham and Duval County patrolman Holycross executed a search warrant for cannabis at Respondent's licensed premises. After entering the premises, they searched the same and found, among other things, nine manilla envelopes containing cannabis hidden in the storage room behind the bar. Respondent's son was then arrested for possession of a controlled substance.

   
   

5. Respondent acquired his lounge in December, 1981. He has added several thousand dollars in improvements since that time. Respondent works as a

   longshoreman and is unable to devote full time to operating the lounge. Because of this he permitted his son, Pernell Crane, Jr., who was 21 years old, to manage the business in his absence Crane, Sr. normally spends a few hours of each weekday afternoon on the premises when not working his other job. He also closes up the lounge on weekend nights.

   
   

6. Respondent was unaware of the illegal drug activities being conducted on the premises. Upon learning of these activities, the son was immediately dismissed. Prior to his son's arrest, respondent had heard `street talk" to the effect that drugs were being sold on the licensed premises. He sent a friend to attempt to purchase some drugs but the friend was unsuccessful and reported the place was "clean".

   
   

7. Respondent now watches the premises carefully to insure that no illegal conduct is carried on. He has installed lights in the parking lot to deter the use of drugs in that area. He acknowledged he was somewhat negligent in the past but attributed this to the trust he placed in his son. Upon authorizing the son to initially manage the business, he had instructed him that no drugs were allowed on the premises.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

9. Respondent is charged with six violations of Section 561.29, Florida Statutes, arising out of events that occurred on August 21 and 29, and September 20, 1982. Sub-section (1) therein empowers the Division to revoke or suspend a beverage license upon a determination that a licensee or his agents and employees has violated a law of this state while in the scope of his-employment.

   
   

10. The evidence clearly establishes, and respondent so concedes, that the illicit conduct described in counts 1 through 6 of the notice to show cause did indeed occur. The only remaining issue is whether respondent can be held accountable for the conduct of an employee where he was not present when the violations occurred, and had no knowledge of such activities. The law is clear that in order for Crane to be held accountable for the illicit acts of his son, there must be sufficient evidence to show that the licensee was "culpably responsible for the alleged violations as a result of his own negligence, intentional wrongdoing or lack of diligence." G & B of Jacksonville, Inc. v. State of Florida,366 So.2d 877, 878;(Fla: 1st DCA 1979). Further, the activity must be persistent or recurring, and involve more than one employee on a single occasion. Pauline v. Lee, 147 So.2d 359, 364 (Fla. 2nd DCA 1962). Here the evidence discloses that Crane failed to exercise reasonable care and diligence to insure that the business was conducted in a lawful manner. The illegal conduct occurred on a number of occasions and was carried out in an open and notorious manner. Even though Crane was unaware of this activity, he is nontheless responsible "as a result of his own negligence...or lack of diligence." G & B, 366 So.2d at 878. Accordingly, it is concluded that Respondent is guilty of violating Subsection 561.29(1), Florida Statutes, for which disciplinary action should be imposed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in the notice to

show cause and that his license number 26-2026 be suspended for a period of fifteen days.

DONE and ENTERED this 15th day of July, 1983, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 15th day of July, 1983.

COPIES FURNISHED:

James N. Watson, Jr. Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Joseph S. Farley, Jr., Esquire

350 East Adams Street Jacksonville, Florida 32202

Howard M. Rasmussen, Director

Division of Alcoholic Beverages & Tobacco 725 South Bronough Street

Tallahassee, Florida 32301

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

Docket for Case No: 83-001607

Orders for Case No: 83-001607