STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-2669

)

JAMES A. SINGLETON, d/b/a )

HARVEY'S BAR B QUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, on November 4, 1983, in West Palm Beach, Florida. The issue for consideration was whether Respondent's 2-COP alcoholic beverage license should be disciplined because of the misconduct alleged in the Notice to Show Cause.

APPEARANCES

For Petitioner: John A. Boggs, Esquire

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

For Respondent: James A. Singleton, pro se

c/o Harvey's Bar B Que 717 North Tamarind Avenue

West Palm Beach, Florida 33401 BACKGROUND INFORMATION

By Notice to Show Cause dated March 25, 1983, Petitioner indicated its intent to take disciplinary action against Respondent's alcoholic beverage license because he allowed alcoholic beverages not permitted by his license on his premises, possessed marijuana at his premises, and maintained his licensed premises as a place used for the illegal storage or transfer of marijuana.

These allegations, if true, constitute violations of Sections 562.02, 562.12, 561.29, 823.10 and 893.13, Florida Statutes (1981) . Though the file does not so reflect, Respondent requested a formal hearing on the allegations.

At the hearing, Petitioner presented the testimony of Lt. Eugene G. Savage and Officer Cecelia Fernandez of the West Palm Beach Police Department and Lt. Frank Comisso, Division of Alcoholic Beverages and Tobacco, and Petitioner's Exhibit 1. Respondent testified in his own behalf.

FINDINGS OF FACT

1. At all times pertinent to this hearing, Respondent, James A. Singleton, doing business as Harvey's Bar B Que, possessed 2-COP Beverage License No. 60- 2295 at his place of business at 717 North Tamarind Avenue, West Palm Beach,

   Florida. A 2-COP beverage license permits the sale of only beer and wine for on-premises consumption. No hard liquor is permitted to be sold, served or stored on the premises covered by the license.

   
   

2. On December 17, 1982, armed with a search warrant properly issued based on probable cause provided by confidential informants, a West Palm Beach Police Department patrol headed by Lt. (then Sgt.) Eugene G. Savage entered Respondent's premises at 5:15 p.m. In a separate room to the rear of the building they found 2.2 pounds of a leafy vegetable matter packaged, some in 40 small manila envelopes (nickel bags) and some clear plastic bags. This vegetable substance was subsequently analyzed at the Palm Beach County Crime Laboratory and determined to be marijuana.

   
   

3. At the same time, the officers also found 92 sealed half-pint bottles of hard liquor consisting of rum, vodka, gin and brandy.

   
   

4. When Respondent was arrested at the time of the search, he had over

   $400 on his person. None of this money had serial numbers which matched those of money used in an undercover purchase of marijuana several days previously. Respondent explained the large sum of money as being the proceeds of his biweekly paycheck from his regular job on the railroad which he had received on December 15, 1982. Since there was no evidence to show that the undercover purchase of marijuana, which formed a part of the basis for the probable cause to issue the search warrant, was made from Respondent, there is no reason to doubt his explanation.

   
   

5. Respondent contended he did not know anything about the marijuana. He has a full-time job with the railroad, a job he has held for 30 years, and had turned the running of his restaurant, which he had purchased for his retirement years, over to his son. His son, who has a record of prior arrests and incarceration for drug abuse, had assured him he would not do anything wrong. Since the search, the son has gotten into some undisclosed additional trouble and has run away.

   
   

6. As for the liquor, Respondent contends that he purchased it for the personal consumption of his wife and himself. He bought it in large amounts to get it cheap. However, the half-pint is the favored size of the "Saturday Night" drinker, and, because of the large volume and the diverse nature of the stock, it is clear it was purchased for resale.

   
   

7. Respondent is 60 years old and hopes to work for the railroad a few more years before he retires to run his restaurant. In fact, he has to work, he says, to pay off the fines incident to this situation.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the proceedings.

   
   

9. Sections 561.29(1)(a) and (b), Florida Statutes (1981), permit discipline of an alcoholic beverage license for violations of any laws of the State of Florida. Section 562.02, Florida Statutes (1981), prohibits a licensee

   or his agent to have in his possession at the place of business covered by the license alcoholic beverages not authorized by law to be sold by the licensee. Section 562.12(1), Florida Statutes (1981), makes it a misdemeanor for a licensee to keep alcoholic beverages on the premises with intention to unlawfully sell said beverages.

   
   

10. Here, by establishing that Respondent had a "beer and wine for on- premises consumption" license and yet possessed 92 half-pints of assorted liquor on the premises, Petitioner clearly showed a violation of Section 562.02. Further, the possession of such a large quantity of assorted liquor raises a presumption it was possessed for resale that is not overcome by Respondent's contention it was for personal consumption. Consequently, a violation of Section 562.12(1) has also been proven.

    
    

11. Section 893.13(1)(e), Florida Statutes (1981), makes the unauthorized possession of marijuana a violation of the law. Such a violation, if established, would also be a violation of Section 561.29, Florida Statutes (1981). Here, the possession of 2.2 pounds of marijuana is a violation which, if shown to be with the knowledge or consent of Respondent or if it can be shown Respondent should have known of its presence, will support a finding of guilty.

    
    

12. In the third allegation, Respondent is alleged to have maintained his licensed premises as a place which was used for the alleged keeping and selling of drugs. The testimony of Lt. Savage to the effect that the confidential informant bought marijuana in the facility and the fact that the marijuana found on the premises was packaged in a manner used for resale (nickel bags), clearly establish the offense here.

    
    

13. The evidence shows that Respondent turned the operation of the facility over to his son. While the evidence also shows that the allegations made in the Notice to Show Cause have been technically established, 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. Here, Respondent admitted his son was a drug addict, and to turn the operation of such a facility as here over to such an individual without close supervision is the grossest form of negligence. In addition, Respondent admitted possession of the liquor. Taken together, this evidence forms a pattern of culpable irresponsibility or, in other words, negligence.

    
    

14. The parties have submitted posthearing 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.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That Respondent's alcoholic beverage license No. 60-2295 be revoked. RECOMMENDED this 2nd day of December, 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 2nd day of December, 1983.

COPIES FURNISHED:

John A. Boggs, Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Mr. James A. Singleton c/o Harvey's Bar B Que 717 North Tamarind Avenue

West Palm Beach, Florida 33401

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

Docket for Case No: 83-002669

Orders for Case No: 83-002669