STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-3295

)

REX LIQUOR STORES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this matter before Marvin E. Chavis, duly- designated Hearing Officer of the Division of Administrative Hearings, on December 29, 1983, in Tampa, Florida.

APPEARANCES

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

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

For Respondent: William J. Colonnell

2401 Evinadelman

St. Petersburg, Florida 33706 ISSUES AND BACKGROUND

This case concerns the issue of whether the Respondent's alcoholic beverage license should be suspended, revoked, or otherwise disciplined for the attempted sale and transfer of cocaine and use of a firearm on the licensed premises. At the formal hearing, the Petitioner called as its only witness, John Brady. The Petitioner offered and had admitted into evidence two exhibits. William J. Colonnell testified on behalf of the Respondent and there were no documents or exhibits offered into evidence by the Respondent.

FINDINGS OF FACT

1. At all times relevant to these proceedings, the Respondent, Rex Liquor Stores, Inc., was the holder of beverage license No. 62-535, Series 3-PS. The license is issued to the licensed premises located at 925 62nd Avenue, St. Petersburg, Florida, and is known as Rex Liquor Store No. 1.

2. The officers and directors of the Respondent corporation in June 1983 were:

   
   

   William J. Colonnell President

   Robert V. Colonnell Vice-President William J. Colonnell, Jr. Secretary-Treasurer

   
   

   These three individuals also were the stockholders in the corporation, with William J. Colonnell as the majority stockholder.

   
   

3. On June 15, 1983, Detective John Brady, of the Pinellas County Sheriff's Department, made a controlled buy of cocaine from William J. Colonnell, Jr. This controlled buy was made through a confidential informant and took place at Mr. Colonnell's house. This buy was a sample for a larger buy of one pound of cocaine on June 16, 1983.

   
   

4. The transfer of the one pound of cocaine was to take place on June 16, 1983, at Mr. Colonnell's home. However, at approximately 5:20 p.m. on June 16, William J. Colonnell, Jr., called the confidential informant and said he wanted the "buy" to take place at Rex Liquors located at 925 62nd Avenue in St. Petersburg. Mr. Colonnell also told the confidential informant that "Carlos" was at the liquor store and was getting nervous. Carlos is the street name of Carl Mobley, a well-known drug trafficker in the St. Petersburg area. William

   J. Colonnell, Jr. was acting as a middle man for Mobley in the drug transaction.

   
   

5. The confidential informant and Detective Brady went to the licensed premises. When they arrived at Rex Liquors No. 1, they walked in and saw William Colonnell, Jr. walk out of the storage area and motion them to the rear of the store. Colonnell took them into the store office where Carl Mobley was hiding in the bathroom. Colonnell went over to the desk and removed a packet wrapped in newspaper. He opened the packet and removed a large ziplock plastic bag containing one pound of cocaine. Brady then performed a test to determine if the white powder was, in fact, cocaine. The test showed positive for cocaine and Brady then walked out, got the money and came back in. A young lady named Kristine Lindh was also present in the office and began counting the money. The agreed purchase price was $33,600.00 and this was in twenty dollar bills.

   
   

6. After Brady returned to the office with the money, Colonnell called him over to a filing cabinet in the office and showed him how he could see the cops coming if they came there. He then stated that was why he did his drug deals there, because he could see the cops coming and get rid of the contraband.

   
   

7. For this particular transaction, Detective Brady had been body-bugged; and when the transaction was completed, backup officers were to come in and make the arrest. The body bug was not working; and while Brady sat and watched Ms. Lindh count the money, there was suddenly a crash. Someone yelled "sheriff's department." Colonnell yelled toward the bathroom "Carlos, it's the cops." A black male ran out of the bathroom, and Colonnell grabbed a 357 magnum pistol. Colonnell had previously locked the office door, and the officers were attempting to break down the door. Colonnell pointed the pistol at the door, and Brady jumped him. Colonnell fired two shots at Brady before Brady was able to disarm him. During the struggle, Colonnell was fatally wounded.

   
   

8. No other shareholders or stockholders were aware of this drug transaction. William J. Colonnell, Jr. had a clean record and had had no prior criminal charges. He had managed the licensed premises for 20 years.

9. Cocaine is a controlled substance under Chapter 893, Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this action.

    
    

11. Section 561.29(1)(a), Florida Statutes (1983), empowers the Division of Alcoholic Beverages and Tobacco to revoke, suspend or otherwise discipline a beverage license for a violation by the licensee or its agents, officers, servants, or employees, on the licensed premises. In the instant case, the Respondent corporation is charged with violations of Sections 893.13(2)(a), 893.135(1)(b), 790.07, 777.04, and 823.10, Florida Statutes (1983).

    
    

12. Section 893.13(2)(a)(5), Florida Statutes, 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 violation of this chapter for the purpose of using these substances, or which is used for keeping or selling them in violation of this chapter.

    
    

    A violation of this section also constitutes a violation of the Beverage Law through Section 561.29(1)(c), Florida Statutes.

    
    

13. Cocaine is a controlled substance, and it is a violation of state law to sell, use, deliver, or possess them. Section 893.13, Florida Statutes (1981).

14. Section 893.135(1)(b), Florida Statutes (1983), provides: Any person who knowingly sells, manufactures,

    delivers, or brings into this state, or who

    is knowingly in actual or constructive possession of, 28 grams or more of cocaine as described in s. 893.03(2)(a)4., or of any mixture containing cocaine is guilty of a felony of the first degree, which felony shall be known as "trafficking in cocaine."

    
    

15. Section 790.07, Florida Statutes (1983), makes it a felony of the second degree to display, use, threaten, or attempt to use a firearm while committing or attempting to commit a felony.

    
    

16. Negotiating a sale of a controlled substance or acting as a go-between in arranging such a drug transaction is a violation of Florida law and will subject a person committing such acts to a conviction under the criminal laws of Florida. Nadjawski v. State, 371 So.2d 554 (Fla. 2d DCA 1979), State v. Hubbard, 328 So.2d 465 (Fla. 2d DCA 1976), State v. Dent, 322 So.2d 543 (Fla. 1975). It is also unlawful under Florida law to agree, combine, conspire or confederate with another to violate the laws of the State of Florida. Section 777.04, Florida Statutes (1983).

17. A license may also be disciplined by the Division if the licensee is found guilty of maintaining a nuisance on the licensed premises. Section 561.29(1)(c), Florida Statutes (1983). Section 823.10, Florida Statutes, declares a place or building where controlled substances are illegally kept, sold, or used to be a nuisance.

    
    

18. The evidence in the instant case established that an officer, director and shareholder of the Respondent corporation used the licensed premises for the completion of a very serious drug transaction which resulted in the death of William J. Colonnell, Jr. Under these facts, the Respondent is guilty as charged in Counts 1, 2, 3, 4 and 5 of the Notice to Show Cause. See, State Beverage Department v. Ernal, Inc., 115 So.2d 566 (Fla. 3d DCA 1959). The evidence did not establish a violation of Count 6 of the Notice to Show Cause.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a

Final Order finding the Respondent guilty of the violations charged in Counts 1, 2, 3, 4 and 5 of the Notice to Show Cause and revoking beverage license No. 62- 535.

DONE and ENTERED this 23rd day of March, 1984, in Tallahassee, Florida.

MARVIN E. CHAVIS, 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 March, 1984.

COPIES FURNISHED:

James N. Watson, Jr., Esq. Department of Business Regulation 725 Bronough Street

Tallahassee, FL 32301

William J. Colonnell 2401 Evinadelman

St. Petersburg, FL 33706

Howard M. Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, FL 32301

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

Docket for Case No: 83-003295

Orders for Case No: 83-003295