STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS REGULATION) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 83-2065
) ELIZABETH GERVAIS, d/b/a THE ) STARBUST BAR, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings, on July 7, 1983, in Tampa, Florida. The issue for determination was whether the alcoholic beverage license of the Respondent should be revoked, suspended, or otherwise disciplined because of the misconduct alleged in the Notice to Show Cause.
APPEARANCES
For Petitioner: James N. Watson, Jr., Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Michael D. LaBarbera, Esquire
LaBarbera & Campbell
Suite 2A, 620 Madison Street Tampa, Florida 33602
BACKGROUND INFORMATION
On June 29, 1983, Petitioner entered a Notice to Show Cause to Elizabeth Gervais, trading as The Stardust Bar, at 2631 East Lake Avenue, Tampa, Florida, to show cause why her alcoholic beverage license should not be suspended, revoked, or be otherwise disciplined because of allegations that during the period June 23 through June 27, 1983, cocaine and marijuana were sold within the bar premises by employees of the Respondent or that purchases of marijuana and cocaine were arranged by employees of the bar on the premises. Additional allegations contained in the Notice to Show Cause allege maintaining the licensed premises as a place resorted to by persons using controlled substances and by maintaining a public nuisance on the premises in the form of a place visited by persons for the purpose of unlawfully trafficking in controlled substances. The same date, an emergency suspension of Respondent's alcoholic beverage license was entered based on basically the same misconduct as alleged in the Notice to Show Cause. Respondent requested a formal hearing under the
provisions of Section 120.57(1), Florida Statutes (1981), and the hearing was held thereafter, as referenced above.
Petitioner presented the testimony of Reylius Thompson, William B. Iler, Carol Houston, and John T. Allen, and Petitioner's Exhibits 1 through 5.
Respondent testified in her own behalf and presented the testimony of Joseph E. Pelkington, A. M. Peters, B. A. Terwilliger, Paul Douglas Miller, Larry J. Henderson, Robert O'Neill, Rebecca K. McKinney, Willie A. Cannon, and Louis Charbonier, Jr. Hearing Officer's Exhibit 1 was received as well.
FINDINGS OF FACT
At all times pertinent to this hearing, Respondent possessed a valid 4- COP alcoholic beverage license, No. 39-589, and operated The Stardust Bar, located at 2631 East Lake Avenue, Tampa, Florida
Reylius Thompson has been a state beverage officer assigned to the Fort Lauderdale district office for approximately four years. He has attended beverage school and a drug enforcement administration course, police standards training, and other various courses in law enforcement. Based on his training and experience, he is familiar with the sight, smell, and appearance of marijuana and with its method of smoking and-handling. He is also familiar with the sight and taste of cocaine.
At approximately 6:30 p.m. on June 23, 1983, Mr. Thompson entered the Respondent's bar at 2631 East Lake Avenue, Tampa, to investigate the alleged serving of alcohol to minors and the sale of controlled substances. He entered the bar by himself, but Agent Carol Houston and a Tampa Police Department Officer Collins were already inside. When he entered the bar, he spoke with Officer Collins near the disco seat and sat down in the same general area.
When he and Collins sat down, a black male came up and asked them to move to another table, as he kept his "stash" there. Thompson and Collins did as requested and observed the same male lift up the top of the table and remove from the hollow, oval center part a brown paper bag. Thompson asked the individual what he had in there, and the individual replied "5-cent and 10-cent pieces of cocaine." These terms mean a "deck" or a "hit," or less than a gram. Five cents equals $5, 10 cents equals $10, in value. Thompson then asked to buy a 10-cent piece. In response, the black male opened the bag and pulled out a foil package which he gave to Thompson in return for $10 in cash. This substance was subsequently determined to be cocaine.
The black male referenced above identified himself as "Chick." After Thompson got the cocaine from Chick, he and Officer Collins walked back to another booth. Thompson observed two partially smoked cigarettes on the table. He picked them up, placed them in a napkin, and put them in his rear left pocket. They were subsequently determined to contain marijuana.
While in the bar, Thompson talked for a while with the disc jockey named "Bobby," subsequently identified as Robert O'Neill. Thompson had stepped into the deejay booth and started a conversation with Bobby, asking if he, Bobby, had any cocaine. Bobby replied that no he did not, but called over another man called "Black Man," who spoke with Bobby and then asked Thompson if he was the one who wanted cocaine. When Thompson asked what he had, Black Man said "5-cent pieces." Thereafter, Black Man left, returning shortly with three small foil-wrapped packages which he gave to Thompson. Thompson only wanted one of the packages, for which he gave Black Man the sum of $5. This substance was
subsequently identified at the lab as cocaine. O'Neill's protests that he did not do this because of his former dispute with "Black Man" notwithstanding, the weight of the evidence indicates that he did and I so find.
Thompson also observed quite a few black males and females in the bar smoking marijuana. He also observed sales of marijuana, not only in the rear lounge area, but also out in front. He observed individuals pulling out brown paper grocery bags which appeared to contain already prepared packages of marijuana and cocaine.
Thompson came back to the bar on the afternoon of Friday, June 24, 1983, and sat at the bar toward the center. One employee, Slim, was working behind the bar, and Thompson bought a half pint of liquor from him. At that point, he saw Chick standing down at the open end of the bar with a few other black males and females, about 10 feet away but in plain view. Thompson also saw a package of Kool cigarettes lying on the bar and observed Chick open a small, foil package and pour a small amount of white powder onto the Kool cigarettes. This foil package was similar to that which Thompson had previously purchased from Chick which contained cocaine. While this was being done, another employee of the bar, "Short Man," walked down to that end of the bar, standing right by the Kool cigarettes and the powder, and did nothing to have it removed.
Thompson then walked over to Chick, who offered him some "good" cocaine. Thompson, however, declined to use any at that point, but asked if Chick had any to sell. Chick replied that he had a 25-cent piece, whereupon Thompson pulled $25 out of his pocket and gave it to Chick, who gave him the suspected cocaine. Thompson then went back to his seat in the center of the bar, but observed Chick and the others smoking what appeared to him to be a marijuana cigarette. He came to this conclusion from the smell and from the way the cigarette was held and passed around, all of which was common to marijuana use.
Carol Houston has been a beverage officer with the Division of Alcoholic Beverages and Tobacco for about 2 1/2 years and is assigned to the Miami district office. She participated in an undercover investigation of The Stardust Bar in late June, 1983. On several occasions, she was accompanied by Officer Thompson. On the evening of June 24 at approximately 9:00 p.m., she went into the bar and ordered a "rum and Coke" from the male by the name of Tony working behind the bar. At this time, she noticed Tony smoking a cigarette handed to him by a patron. From the smell of the cigarette, with which she was familiar based on her training and experience, the cigarette appeared to be marijuana. She asked Tony if the "shit" he was smoking was any good and where she could get some. "Shit" is the street name for any contraband, narcotic, or substance. Tony called over a man by the name of Frank from whom Officer Houston made a purchase of a "nickel's worth" ($5) of a substance subsequently identified by the laboratory as marijuana.
On June 25 at approximately 9:00 p.m., Thompson again went back into the lounge and sat at the bar where Slim was the bartender. At this time, he was accompanied by Agent Houston. While they were sitting there, Chick came up to Thompson and asked him if he wanted to buy any cocaine. In response, Thompson purchased a 5-cent package of what was subsequently identified as cocaine.
Earlier that day, at approximately 4:30 p.m., when Thompson went into the bar, he saw a female barmaid subsequently identified as "Pat." While
Thompson and Pat were talking, Chick came up and asked Thompson if he wanted to buy any "rock" (cocaine). Thompson said he did not know-- he wanted to see it. Consequently, Chick went to the rear of the lounge and came back a moment later with a foil package which he opened in plain view of Thompson and Pat, who said absolutely nothing about getting it out of the premises. Thompson looked closely at the substance, showed it to Pat, and asked Chick how much it was.
Chick said "normally $25," but for Thompson, a special price of $20. Thompson paid Chick the $20 and got the substance, all during which time Pat, an employee of the bar, said nothing. This substance was subsequently identified as cocaine. Also on this date and at approximately the same time, Thompson observed numerous sales of marijuana and cocaine openly in such a manner that anyone looking could see what was going on. These sales took place primarily at the bar and at the jukebox.
At approximately 7:00 p.m. the following Monday, June 27, 1983, Thompson went back in with Agent Houston, but when they got there, they split up. Thompson sat at the counter and observed that Pat and Tony were both behind the bar as barmaid and, ostensibly, bartender. Thompson talked with Pat at that time about things in general, but later asked her if she had any cocaine. She asked how much he wanted, and he replied that he wanted something small. Tony was standing nearby at that time, and Pat said something to him and told him to go get it. Tony went to the closed end of the bar, where he talked to a customer, and immediately came back, giving Pat five separate small foil packages. Thompson gave Pat $30, and in return she gave him the five small packages, after which she went to another area of the bar. She came back shortly thereafter and gave Thompson $5 change. A few minutes later, however, she came and asked Thompson for one of the five packages. Thompson said he could not give her one because they were for someone else and that person would be angry if he did not turn over the entire amount. Somewhat later that same night, Thompson was seated further back in the lounge at a table. He noticed a pregnant, black female (previously noticed by him to be selling marijuana) go to the bar counter where Houston was seated. He observed them have a conversation and saw her give Houston a cellophane bag.
Houston confirmed this, stating that while she was sitting at the bar, she ordered a drink from Tony. Later, the pregnant, black female came into the bar. Houston asked Tony if what she was selling was any good, but Tony did not answer. When Houston said she should get some of the substance, Tony went out, got the pregnant female, and brought her back to Houston, whereupon Houston bought a bag of a substance subsequently identified as marijuana from the pregnant female paying therefor the sum of $10.
Somewhat previously, on June 25, Houston was again in the bar, where she ordered a drink from Tony, who was `behind the bar. Later that day, she saw Tony down at the other end of the bar smoking what to her smelled like a marijuana cigarette. She called him over and asked him where she could get some. He asked what she wanted, and she said "a dime's worth of coke." Tony went away and came back shortly thereafter, giving her two foil packets, for which she paid him the sum of $10. The foil packets were subsequently identified to contain cocaine.
Neither Houston nor Thompson ever saw Respondent, Elizabeth Gervais, in the bar. In fact, they rarely saw any white individuals in the bar.
Thompson saw whites there twice--once when a younger white male was behind the bar talking to a bartender. This individual was there when Thompson came in and left within seconds after his arrival. The other time was when a white patron came in with a black patron, had a drink, and left. Houston only saw a young,
white male on the premises on one occasion when she was there. At this time, the individual came in, went behind the bar, and then left.
According to William B. Iler, Sergeant with the Tampa Police Department and supervisor of the street anti-crime squad (SAC unit), The Stardust Bar and the surrounding area is known to be in the area of heaviest concentration of street-level narcotics on this side of town. Within the law enforcement community, The Stardust Bar has a reputation of being a location where numerous narcotics transactions occur both inside and outside of the bar both day and night. His unit has been in and out of the bar since May 10 on numerous occasions, but never in response to a call from the bar.
Respondent, Elizabeth Cervais, owner of The Stardust Bar and two others in the Tampa area, works full time for a private industrial concern on varying shift work, and operates the bars as a sideline investment. She is the only one with the authority to hire in any of the bars, although the Louis Charboniers, both senior and junior, who work for her in an operational capacity, have the authority to interview prospective employees. When she interviews, a substantial and important part of the interview concerns itself with whether the individual is a drug user or comfortable in the drug environment. If there is any indication that individuals use drugs, they will not be hired. If the individual is hired, he or she is told immediately that The Stardust Bar policy is: drugs are not permitted, drugs will not be used in the bar, drugs will not be used by employees in the bar, and no individuals who are not employees of the bar are allowed behind the bar. When she purchased The Stardust Bar, she was not aware of any drug problem, either there or at the others she owned. She has repeatedly told her employees to immediately call the police if there is any evidence of drugs being used or possessed in the bar.
She contends she has also directed both junior and senior Charbonier to inquire of the police to see what they and she can do about the drug problem. She says she has talked with police officials, although she cannot give their names, but it appears to her that neither she nor the police can do anything about the drug problem. However, she did not check with the police or with the Petitioner as to the incidence of narcotics incidents prior to buying either this bar or any of the others that she owned, even though she knew that they were located in a high narcotics area.
Several officers of the Tampa Police Department have spoken with Louis Charbonier, Jr., concerning drugs in the bar at varying times. None recall ever talking with Ms. Gervais and, of the contacts made by Louis Charbonier, Jr., most were as the result of calls to come to the bar because of reported use of narcotics going on at the time, and most have come within the three to four weeks prior to the emergency suspension after a young, underage, black female was shot by accident in the bar.
Only one officer, Douglas Miller, can recall contacts with Charbonier going back a year and a half. Miller relates that on several occasions, Charbonier asked how he could clean up drugs in the bar, and Miller told him to contact the vice squad, but does not know if this was done. Most of these discussions with Miller took place other than in The Stardust Bar. In fact, though Miller has been in The Stardust Bar at least 200 times over the past year and a half or so, he has seen either Respondent, Gervais, or the Charboniers in the bar only five or ten times. In fact, to his knowledge, he has never seen a manager in the bar all during the time he has been going in there.
Joseph E. Pelkington, Colonel of Operations of the Tampa Police Department, was assigned to look into allegations contained in a letter dated January 18, 1983, from Respondent's attorney to the Chief, Tampa Police Department, complaining of, in essence, police harassment of patrons in The Stardust Bar. The letter specifically complains about the repeated attention given to The Stardust Bar and the apparent improper conduct of police department officers in their handling of patrons in the bar. While the letter does not complain of legitimate responses to the bar by the police regarding actual cases of narcotics violations, in essence it complains that rather than too little attention being paid, too much attention is paid to The Stardust Bar by the police department.
Louis Charbonier, Jr., works for Respondent as manager of her three bars and sees that they are fully stocked and run smoothly. At the time Respondent acquired this particular bar in the fall of 1981, there appeared to be no particular problem with drugs. However, in the last six months, the drug situation, according to this witness, appeared to be becoming more serious. As a result, he discussed this with the Respondent and was given orders by her to stop it. He claims he went to the vice department, though he cannot remember the officer's name with whom he spoke, and asked for assistance to come in and clean up the drug problem. According to Charbonier, he was told by the police that the problem was too small, and they could not waste their time on "nickel and dime stuff."
He claims that within the last two months, he has made 20 to 30 requests to the Tampa Police Department for assistance in the form of reports of drug activities.
Charbonier says that he goes to The Stardust Bar three times a day-- usually in the afternoon, in the evening, and at closing. On an almost daily basis, he has cautioned employees about keeping drugs out, has made reports to the police, and has contacted the police about having an off-duty or undercover policeman in the bar. In fact, he has offered the disco booth as an observation point, but so far has received no response from the Tampa Police Department. Notwithstanding this contention by Charbonier, other employees, such as Willie
A. Cannon (Slim) and Robert O'Neill (Bobby), have seen him in the bar sporadically, not regularly.
Not only Respondent but other employees, such as Becky and Slim, deny that Tony is an employee of the bar and that Tony has any legitimate basis for being behind the bar. They recognize, however, that it is possible from time to time that Tony has been behind the bar, though this is without permission of the Respondent or her organization. This was confirmed by Mr. Charbonier. There is, therefore, insufficient evidence to conclude that Tony is an employee of Respondent.
Respondent seems to feel that her current difficulties are as a result of a concerted effort by the Tampa Police Department and the Division of Alcoholic Beverages and Tobacco to put her out of business because of her association with Louis Charbonier, Sr. In fact, when she bought The Stardust Bar and it was known that the Charboniers would be associated with her in some capacity in the venture, she was allegedly told by an agent of the Division of Alcoholic Beverages and Tobacco that they did not like her association with the Charboniers because Louis Charbonier, Sr., was an undesirable (convicted felon)
. There is no other evidence to verify this allegation, however.
Respondent contends, further, that prior to the last four months, she visited this and her other bars every day. However, during the last four months, because of her varying schedule at her primary occupation, she has basically turned the management and operation of her businesses over to the Charboniers, both of whom work for her, but neither of whom has a financial interest in any of her enterprises.
Though she has no formal staff meeting, though she has no formal or written operating instructions, and though nothing is placed on a bulletin board to substantiate or publicize her policies regarding drugs, she contends that she talks with each employee at least once a week, either through the Charboniers or by telephone, and repeatedly emphasizes her non-drug policy. In addition, she has had three large signs posted on the premises stating "no drugs allowed," but has had to replace these frequently because they are torn down by the patrons. To the best of her knowledge, there is only one in place at the present time. By her own admission, she had not been at The Stardust Bar for at least two weeks prior to the Emergency Order of Suspension being issued.
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 has violated certain laws of the State on the licensed premises. Section 561.29(1)(a), Florida Statutes (1981).
Ordinarily, revocation action will not be supported by a showing of only one isolated violation, especially if it can be shown that the licensee otherwise took pains to obey the law. On the other hand, if the evidence shows that the law is repeatedly and flagrantly violated by the licensee's employees, an inference arises 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). Consequently, the standard of simple negligence may be applied to the revocation of the beverage license. Bach v. Florida State Board of Dentistry, 378 So.2d 34 (1 DCA Fla. 1979). Therefore, a licensee has the obligation to maintain sufficient intelligence regarding his own business establishment to know at least generally what his employees are doing therein, 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).
In Allegations 1a and b of the Notice to Show Cause, Respondent is alleged to have violated Section 893.13(1)(a), Florida Statutes (1981), by the felony sale of cocaine 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, or s. 775.084.
There is little doubt that the testimony of Officer Houston and Officer Thompson establishes that on the date set out in Allegations 1a and b Houston bought cocaine from Tony, and Thompson bought cocaine from or through Pat. There is, however, no evidence to establish that Tony was an employee of the Respondent, even though he was apparently working behind the bar and gave all appearances of being an employed bartender. The fact is that Respondent and several of Respondent's bona fide employees clearly stated that Tony was not an employee of The Stardust Bar and there was no evidence presented on the part of the Petitioner that he in fact was. That he may have been engaged in work-like conduct behind the bar does not establish an agency relationship or an employee- employer relationship between Tony and the Respondent. Therefore, the evidence clearly shows Pat arranged for the sale of cocaine to Thompson on June 27, 1983, and that Pat was an employee of the Respondent, supporting Allegation 1b. However, there is insufficient evidence to show that the sale to Houston on June 25, 1983, by Tony as alleged in 1a was a sale by an agent, servant, or employee to bring it within the purview of Section 561.29(1)(a), Florida Statutes (1981).
In Subparagraphs a, b, c, and d of Allegation 2, it is alleged that Respondent, through various agents, servants, or employees on the dates set out in the subparagraphs, violated Sections 777.011 or 777.04(1) through (3), Florida Statutes (1981), by aiding and abetting the sale or delivery of substances controlled under Section 893.13, Florida Statutes, which is also in violation of Section 561.29(1)(a), Florida Statutes (1981). Subparagraph c of Allegation 2 alleges the same offense as that alleged in Subparagraph b under Allegation 1.
Again, Officer Thompson's testimony that he bought the marijuana from Roosevelt Jackson, a/k/a Black Man, verified by the testimony of Officer Houston, establishes without doubt that the sale was made and that Black Man was involved. The only subject in controversy is whether the disc jockey Bobby arranged for the purchase. There is ample evidence to establish that Bobby, although he claims to be an independent contractor, is nonetheless an employee of the Respondent. Bobby, however, strongly denies any involvement in the possession, use, or sale of drugs and denies arranging for Roosevelt Jackson to make the sale to Officer Thompson. Nonetheless, there is little doubt that Bobby arranged for the purchase of the cocaine by Officer Thompson.
There is, however, no doubt that Tony arranged the purchase of marijuana by Houston from Frank and participated in the sale of cocaine to Thompson as was discussed in the analysis of Subparagraph b in Allegation 1. I am satisfied, therefore, that the evidence is sufficient to support a conclusion that the sale did occur as alleged.
I am also satisfied that Tony arranged the purchase of marijuana from Michelle, the pregnant patron, by Officer Houston on the date set out. Yet, Tony has not been shown to be Respondent's employee. Therefore, in my opinion,
the evidence fails to establish the commission of the three offenses alleged in Subparagraphs b, c, and d of Allegation 2 as drafted in the Notice to Show Cause.
Sections 777.011 and 777.04, Florida Statutes (1981) , state: 777.011:
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.
777.04:
Whoever attempts to commit an offense prohibited by law and in such attempt does any act toward the com- mission of such an offense, but
fails in the perpetration or is intercepted or prevented in the exe- cution of the same, commits the offense of criminal attempt and shall, when no express provision is made by
law for the punishment of such attempt, be punished as provided in subsection (4)
Whoever solicits another to commit an offense prohibited by law and in
the course of such solicitation com- mands, encourages, hires, or requests another person to engage in specific conduct which would constitute such offense or an attempt to commit such offense commits the offense of crimi- nal solicitation and shall, when no express provision is made by law for the punishment of such solicitation,
be punished as provided-in subsection (4)
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).
In Subparagraphs a and b of Allegation 3 in the Notice to Show Cause, it is alleged that, Respondent, through her agents, servants, or employees, did violate Section 817.563, Florida Statutes (1981), by the felony sale and delivery of a substance represented to be cocaine.
Section 817.563, Florida Statutes (1981), states:
It is unlawful for any person to agree, consent, or in any manner offer to unlawfully sell to any person a con- trolled substance named or described in
893.03 and then sell to such person any other substance in lieu of such controlled substance. Any person
who violates this section with respect to:
A controlled substance named or described in s. 893.03(1), (2), (3), or (4) is guilty of a felony of the third degree, punishable as pro- vided in s. 775.082, s. 775.083, or s. 775.084.
A controlled substance named
or described in s. 893.03(5) is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
It is obvious from a reading of this paragraph that it refers to the representation by the seller that what is being sold is a controlled substance and the subsequent delivery of something else in lieu of such controlled substance. My review of the evidence as it pertains to these two specific allegations reflects that the substance was represented in each case to be cocaine and upon test turned out to be in fact cocaine. Therefore, while the sale constitutes a violation of Section 893.13(1)(a)2, it does not constitute a violation of Section 817.563 since there was no misrepresentation.
The fourth allegation in 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 Chapter 893, Florida Statutes (1981), which makes it unlawful for any person, as outlined at Section 893.13(2)(a)5, Florida Statutes (1981):
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 Officers Thompson and Houston that they on numerous occasions during the period between June 23 and June 27, 1983, observed other persons smoking what they recognized to be marijuana in the bar and at least on one occasion witnessed a transfer of it supports without question the conclusion that this statutory provision was in fact violated.
Finally, in the fifth allegation of the notice to show cause, Respondent is alleged to have maintained a public nuisance on the premises by allowing people to use it for the sale, use, or delivery of controlled
substances on it in violation of Sections 823.01 and 823.10, Florida Statutes (1981) . These sections 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 provided in s. 775.083.
Any nuisance which tends to the immediate annoyance of the citizens
in general, or is manifestly injurious 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 householders of the same, who shall be summoned, sworn, and impaneled for that purpose, which order shall be directed to and exe- cuted by any sheriff of the county; and an indictment 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.
There can be no doubt that the marijuana and the cocaine sold and delivered and, to some extent, used in The Stardust Bar by the various persons as alleged in the Notice to Show Cause are controlled substances and the statutory provisions cited cover a situation such as this. Consequently, this conduct constitutes a violation of Section 561.29(1)(a), as well, and subjects Respondent to disciplinary action.
The question to be resolved once it is established that the transactions took place is whether or not Respondent was aware of, or should have been aware of, them. While the conduct complained of technically violates the terms of the statute, it is nonetheless necessary to establish that Respondent was aware of and condoned, or was negligently unaware of, the misconduct before disciplinary action may be taken.
Respondent admitted that she was aware herself and through the reports given to her by her manager, Mr. Charbonier, and others that drug activity was prevalent not only in the area of but in The Stardust Bar. Her representations that she made substantial effort to secure the assistance of the Tampa Police Department and perhaps others in getting rid of the drug activity is really not supported by other credible evidence and is not persuasive. She further admitted that she had not been in The Stardust Bar for approximately four weeks prior to the issuance of the Emergency Order of Suspension and relied primarily upon Mr. Charbonier to take whatever action was necessary to run the operation. It is unfortunate that she did so because not taking a personal interest and relying on the representations of others, regard less of how well motivated, nonetheless constitutes negligence, which subjects her to discipline for violations of the statutes in question. There is insufficient evidence to establish that reasonable effort was made to find out what was going on and to take appropriate corrective action.
The parties have submitted proposed recommended orders 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.
On the basis of the foregoing, it is RECOMMENDED:
That Respondent's alcoholic beverage license, No. 4-COP, 39-589, be revoked.
RECOMMENDED this 27th day of July, 1983, in Tallahassee, Florida.
ARNOLD H. POLLOCK, 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 27th day of July, 1983.
COPIES FURNISHED:
James N. Watson, Jr., Esquire Department of Business
Regulation
725 South Bronough Street Tallahassee, Florida 32301
Michael D. LaBarbera, Esquire LaBarbera & Campbell
Suite 2A, 620 Madison Street Tampa, Florida 33602
Mr. Gary R. Rutledge Secretary
Department of Business Regulation
725 South Bronough Street Tallahassee, Florida 32301
Mr. Howard M. Rasmussen Director, Division of Alcoholic
Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jul. 27, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 27, 1983 | Recommended Order | Drug activity in licensed premises supports revocation of beverage license especially when licensee knew about them but took no corrective actions. |
