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DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs. CASEY`S NICKELODEON, INC., 83-003654 (1983)

Court: Division of Administrative Hearings, Florida Number: 83-003654 Visitors: 7
Judges: MARVIN E. CHAVIS
Agency: Department of Business and Professional Regulation
Latest Update: Dec. 16, 1983
Summary: This case concerns the issue of whether the Respondent's alcoholic beverage license should be suspended, revoked or otherwise disciplined for permitting the sale and possession of controlled substances on the licensed premises, Casey's Nickelodeon, located at 5590 Hallandale Beach, Pembroke Park, Florida. At the formal hearing, the Petitioner offered and had admitted into evidence six exhibits and the Respondent offered and had admitted into evidence two exhibits. Counsel for the Petitioner and
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83-3654.PDF

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS


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

)

Petitioner, )

)

vs. ) CASE NO. 83-3654

) CASEY'S NICKELODEON, INC. d/b/a ) CASEY'S NICKELODEON, )

)

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 1 and 2, 1983, in Lauderhill, Florida.


APPEARANCES


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

Staff Attorney

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


For Respondent: Seymour Chadroff, Esquire

Lane Abraham, Esquire

200 Southeast First Street, No. 1101 Miami, Florida 33131


ISSUES AND BACKGROUND


This case concerns the issue of whether the Respondent's alcoholic beverage license should be suspended, revoked or otherwise disciplined for permitting the sale and possession of controlled substances on the licensed premises, Casey's Nickelodeon, located at 5590 Hallandale Beach, Pembroke Park, Florida. At the formal hearing, the Petitioner offered and had admitted into evidence six exhibits and the Respondent offered and had admitted into evidence two exhibits.


Counsel for the Petitioner and counsel for the Respondent submitted findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with the findings and conclusions in this order, they were considered by the Hearing Officer and rejected as being unsupported by the evidence or unnecessary to a resolution of this cause.

FINDINGS OF FACT


  1. Respondent holds beverage license No. 16-498, Series 4-COP, issued to the licensed premises, Casey's Nickelodeon, located at 5590 Hallandale Beach Boulevard, Pembroke Park, Florida. Respondent has held the license for three years.


  2. The Respondent is a corporation owned solely by Dorothy Sucharski. Dorothy Sucharski is Secretary and Treasurer of the corporation and her husband Casimere J. Sucharski, Sr., is President. Their son, Casimere J. Sucharski, Jr., also known as Butch, is actively involved in the management and operation of the business.


  3. The licensed premises is a restaurant and bar operation, which is divided into three main seating areas, all opening into a central covered breezeway. The front entrance is an iron gate opening into the breezeway. As a patron enters the licensed premises through the breezeway, the main bar area is on the right and an open-air covered patio is to the left. At the end of the breezeway is a doorway and entrance into the dance floor area. The dance floor area and the patio area contain tables and chairs. As a patron enters the dance floor area from the breezeway, the office and DJ's booth are located at the left or east end of the dance floor area and the restrooms are located at the south wall opposite the entrance to the dance floor area.


  4. The operating hours of the licensed premises are 11:00 a.m. to 6:00

    a.m. Mr. Sucharski, Sr. and his wife, Dorothy Sucharski, supervise and manage the day shift and their son, Butch, was responsible for the night shift. The primary supervision of the night shift was the responsibility of the manager, Frank Tiberio.


  5. On October 8, 1983, at approximately 2:00 a.m., Beverage Officer Beverly Jenkins entered the licensed premises in an undercover capacity to investigate complaints of drug sales on the licensed premises. When she arrived, the licensed premises were approximately half full of patrons. She took a seat at the bar and ordered a drink. At some point in the evening she met Peter Follari, an employee of the Respondent. They engaged in conversation and after Officer Jenkins related that she was new in town, Peter Follari stated "You'll like it here, this place has the best 'coke' around." "Coke" is slang or street language for cocaine, a controlled substance under Chapter 893, Florida Statutes. Peter Follari was on duty this particular evening and worked normally as a part-time doorman at the licensed premises. Prior to Peter Follari's comment about "coke" there had been no discussion regarding drugs. Butch Sucharski was on the licensed premises that evening.


  6. On October 14, 1983, Beverly Jenkins returned to the licensed premises. The doormen on this evening were Raymond Charlonne, nicknamed "Bear" and another young man named Scott. Officer Jenkins went into the bar area and asked about Peter Follari, who later arrived at the licensed premises shortly after 3:00

    a.m. After Follari arrived, Officer Jenkins approached him in the breezeway area where Bear and Scott were working. After a brief general conversation, Follari asked Officer Jenkins if she did coke and she replied "yes." Follari then turned to Bear and Scott and introduced Officer Jenkins to them. Officer Jenkins then asked Follari if he could get her some cocaine and he said that he could, but that at the moment he had to go to work.


  7. Officer Jenkins then observed Follari working around the licensed premises. Later that evening, Officer Jenkins approached Follari in the bar

    area and asked if she could get some cocaine that night. He told her to speak to Bear. She then approached Bear and asked if he could get her some cocaine. Bear asked Officer Jenkins if she was a friend of Pete's and she said "yes." Bear then told her that he was not "holding" but that he would get back to her. Officer Jenkins later went back to Bear but observed him talking with an off- duty police officer. She then returned to Follari and told him that she didn't feel she should buy that night because Bear was talking to an off-duty policeman. Follari said "don't worry." A few minutes later, Bear approached Follari and Follari whispered something to Bear. Bear then handed something to Follari. Follari motioned to Officer Jenkins and told her to go to the service area in the dance area.


  8. Officer Jenkins and Follari went to the service area which is a small recessed area next to the entrance to the dance area. A patron named Chris was in the service area and Follari introduced him to Officer Jenkins. Follari asked Chris for a matchbook. Chris gave him a matchbook which Follari placed in his pocket. Follari then told Officer Jenkins to put her arm in his. She asked him "How much" and he responded "$50." She then put her arm in his and exchanged the money for a matchbook which contained a small packet of cocaine. The conversation between Follari and Jenkins prior to the exchange took place in a normal tone of voice. The cash was handed to Follari in open view and was observed by a backup beverage officer standing a few feet away. The patron, Chris, was present during the entire transaction. After seeing Officer Jenkins hand Follari the currency, Beverage Officer Michael D'Ambrosia heard Follari ask a white male patron for change for a $50 bill.


  9. On October 20, 1983, at approximately 3:30 a.m., Officer Jenkins returned to the licensed premises. When he entered, Bear and Peter Follari were at the entrance door. Bear was working as doorman. Officer Jenkins spoke to them and went inside. At approximately 4:50 a.m., Officer Jenkins approached Follari and asked if she could get some cocaine. After a short conversation, Follari went inside and spoke to Bear. When he returned to Officer Jenkins, he handed her a small clear plastic baggie containing cocaine. She handed him $50. This exchange took place in the area where tables were located and patrons were seated at the tables. As she left to go to the restroom, Follari said "now you can take care of business." As she left the licensed premises about 45 minutes later she was introduced to Butch Sucharski. On this same evening Beverage Officer Roberts observed Bear hand Pete Follari a matchbook and as Follari walked away Bear yelled "Toot it good." "Toot" is a slang term for use of cocaine.


  10. On October 23, 1983, Officer Jenkins returned to the licensed premises. When she entered, Frank Tiberio, the manager, was working as doorman. Officer Jenkins met him and later in the service area talked with him. Frank Tiberio told her he was the manager and Officer Jenkins laughed and said, "I've never seen you here before." Frank responded that he was always in the office taking care of the money.


  11. At approximately 3:30 a.m. Follari approached Officer Jenkins and told her he had some real prime stuff and asked her if she would like to buy a gram this time. She asked him how much it would cost and he responded $90. Follari then left and came back shortly and handed her a zip lock clear plastic baggie containing cocaine. She handed Follari $100, but prior to giving him the money, she held the baggie up above eye level and looked at it in the light of the service area. Follari told her not to be so obvious. When she held up the baggie, it was observed by backup Beverage Officer Roberts who was seated at a table in the dance floor area where the service area is located. Officer

    Jenkins went to the restroom and when she returned, Follari asked her if it was good stuff and if she saw the rocks in it (referring to the purity of the cocaine). She left a few minutes later and because she had not received her $10 in change, she told Follari it could count toward the next transaction. Butch Sucharski was on the licensed premises that evening. No one said anything to her about the transaction that evening.


  12. Officer Jenkins went back to the licensed premises on October 27, 1983, at approximately 2:45 a.m. She saw Follari and Frank Tiberio talking in the dance floor area. When Officer Jenkins observed Follari go into the breezeway area, she followed him. As she approached the entrance area, she observed a blond female sitting on the doorman's stool. As Officer Jenkins approached the entrance, the woman said "Hello." Officer Jenkins then observed Follari holding a large zip lock clear plastic bag containing small plastic baggies with white powder in them. He was counting the small baggies. He had counted up to 15. She asked him to see her when he was finished so they could do business. As he was counting the plastic baggies, Follari was outside the entrance with his back to the entrance area. The baggies were visible to persons entering the bar from the parking lot, but could not have been seen by anyone inside the licensed premises.


  13. Later that evening, Officer Jenkins purchased a plastic baggie of cocaine from Follari for $80. The exchange took place in the breezeway and when Officer Jenkins approached Follari prior to the exchange, she observed a clear plastic bag containing white powder in his hand.


  14. Officer Jenkins next returned to the licensed premises on October 30, 1983. The entire premises were very crowded. Peter Follari had not shown up for work and Officer Jenkins asked Bear if he could sell to her. He said he wasn't holding but that he would look around for her. While talking to her, Bear pulled a small plastic baggie like the two she had received from Follari on her first two purchases. The small baggie contained only a residue of white powder. Officer Jenkins was unable to make a buy that evening.


  15. On the evening of October 31, 1983, Beverage Officer Roberts, while seated at the bar in the licensed premises, was told by a female patron named Susan that she had just snorted some good cocaine. She also said she could get him some. These statements were made in the presence of the bartender. She did not say where she had snorted the cocaine.


  16. Pursuant to Bear's suggestion on October 30, Officer Jenkins returned to the licensed premises on November 1, 1983. When she entered, the licensed premises was not very crowded and Bear was sitting in the bar area looking at pictures on a screen with a photographer named Nate. Officer Jenkins walked up to Bear and said she had come back like he asked her to. Bear then stated that he didn't have any that night either, but that he would look around for her. Bear later told her there was no one there that he could get some from.


  17. On November 3, 1983, Officer Jenkins returned to the licensed premises. When she entered, Officer Jenkins saw Bear talking to a male patron who followed her into the bar and introduced himself as Paul Mineo. After talking with Mineo, Officer Jenkins returned to the entrance where Bear was working and as she approached Bear, she observed Peter Follari drive up. Bear told Officer Jenkins that Follari had been rehired after being fired for not showing up for work on October 30. Officer Jenkins spoke with Follari in the doorway and he asked her if she wanted to buy some cocaine. She said she had made arrangements with Bear and Follari then told her that he would take care of

    her. She then returned to a table near the service area where she sat with Paul Mineo. At approximately 2:55 a.m., Follari came over to the table and asked her to come over to the service area. Once in the service area, they began arguing about the price of the cocaine. Follari thought she owed him money and wanted to charge her $100 for a gram. They compromised on a price of $95. Officer Jenkins went to the restroom and counted out the $95 and then returned to Follari in the service area. Follari handed her a clear plastic baggie containing cocaine and she handed him the $95. During the argument and exchange, Paul Mineo and other patrons were seated at tables only a few feet away from the service area. When she returned to the table, Mineo asked her what was going on. She told him none of his business. He persisted and she told him it was only business.


  18. On November 10, 1983, Officer Jenkins returned to the licensed premises. As she entered, Bear, who was working as doorman, asked her if she was looking for some and she said "yes, a gram." She left and returned a while later and asked Bear where the transaction would take place. He told her in the office. As they were talking, a uniformed sheriff's deputy came up and Officer Jenkins stopped talking. Later, Bear came into the dance area where Officer Jenkins was standing and they went into the office where Bear gave her two 1/2 gram plastic baggies containing cocaine in exchange for $80. It was unusual for a bouncer to go into the office with a patron.


  19. Later that evening, Officer Jenkins made arrangements with Follari to buy a "quarter" of cocaine for a party the following Saturday night. Follari quoted her a price of approximately $500.


  20. On a couple of occasions, Officer Jenkins tried to engage or start a conversation with Frank Tiberio, the manager, regarding drugs. She was unsuccessful. There were no signs on the licensed premises prohibiting the use of drugs.


  21. On the evening of November 13, 1983, beverage agents along with several police officers went to the licensed premises and served a search warrant and emergency suspension beverage order. The search revealed a clear plastic baggie at the southeast corner of the bar where the bartenders enter the bar. The bag found near the bar contained residue of cocaine. On this evening, Pete Follari was arrested and searched. In Follari's pocket were found two plastic baggies containing cocaine residue. Bear was also arrested and searched and found to be in possession of a tin foil package containing six (6) baggies of cocaine, a straw, and a folded one dollar bill containing cocaine. The straw was for using cocaine.


  22. As the warrant was served and the lights were turned on in the licensed premises, David Mann, a bartender, was observed by Beverage Officer Oliva trying to conceal something in his sock. A search of David Mann revealed a white plastic baggie containing cocaine residue and a straw.


  23. On the evening of November 13, 1983, approximately 15 to 20 minutes after the officer entered and served the search warrant, Frank Tiberio, the manager, entered the kitchen area of the premises and stated in the presence of Beverage Officer Patricia Phillips and State trooper Clark, "Do you believe this? I told those guys someday someone you least expect will set you up and they said, 'no way, we know our customers.' I told them."


  24. On the evenings he was there as a backup officer, Michael D'Ambrosia observed what he considered to be two or three drug transactions in addition to

    those involving Officer Jenkins. Each evening from midnight to 6:00 a.m., there is a disc jockey playing records. The music is normally very loud and makes it difficult to hear normal conversation in most areas of the bar.


  25. Drugs are prevalent in South Florida and Butch Sucharski, Frank Tiberio and the other employees were aware of this fact. On several occasions, bartenders were asked about where to obtain drugs or were offered drugs by patrons. About eight months prior to the final hearing in this matter, Kathy Bosse, the daytime bartender, had caught two girls using cocaine in the restroom and she asked them to leave. She asked them to leave and reported the matter to Butch. There was no evidence the incident was reported to the police.


  26. On one occasion, Frank Tiberio cooperated with a sheriff's deputy in arresting a patron who was snorting cocaine off of one of the tables in the patio area. The sheriff's office had also arrested people for cocaine possession in the parking area of the licensed premises. During the previous year, Frank Tiberio had thrown a number of patrons out of the establishment for suspected drug use.


  27. To combat the drug problem, the management held regular monthly employee meetings and cautioned the employees against drugs on the premises. Employees were instructed to throw out anyone caught using drugs and were informed they would be immediately fired if they were caught using drugs.

    During the late night shift, a bouncer or doorman and one security man were in the licensed premises. The night manager Frank Tiberio was also present late at night but spent a substantial amount of time in the office. Butch Sucharski was on the licensed premises at different times and periods each night. Employees were searched, but there was no announced policy of random searches of employees. Only employees suspected of using drugs were searched. From midnight to 6:00 a.m., valets were hired for the restrooms and were instructed to not let two people into a stall at one time and to report anything that appeared suspicious. New employees were required to fill out an application and usually their prior employers were contacted. In addition, a friend of Butch Sucharski, Artie Silversmith, was asked on occasions to try to make buys from employees. He was always unsuccessful. He was never asked to try to buy from Pete Follari or Bear.


  28. Bear was searched on two different occasions by Frank Tiberio. On one of those occasions, Bear cursed loudly and objected to being searched. He was searched because Frank Tiberio and Butch Sucharski had heard rumors that he was using drugs. Bear was not fired. There was no evidence of any follow up beyond the two searches. Frank Tiberio testified that he had a policy of firing an employee after they were suspicioned a second time of being involved in drugs. Pete Follari was never searched because there was no suspicion that he was using drugs. Bear obtained the drugs he sold from a customer at the licensed premises, who came there about once a week. The only people Bear sold to were customers at Casey's Nickelodeon. Bear usually made his transfers at the front entrance where no one was around. Dan Ferry, a part-time security man, was also searched twice by Frank Tiberio because Frank had heard rumors that someone was selling drugs inside the licensed premises.


  29. Dorothy Sucharski and her husband, Casimere Sucharski, Sr., were not aware of any drugs being sold or used on the licensed premises.


  30. Casey's Nickelodeon enjoys a good reputation in the community as a clean-cut, well run, nice establishment. It does not have a reputation as a place frequented by persons using drugs. The clientele is a mixture of business

    people, local residents and people from surrounding areas coming in after bars in other areas close.


    CONCLUSIONS OF LAW


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


  32. The Division of Alcoholic Beverages and Tobacco is empowered under Florida Statute 561.29 (1981) to discipline a beverage license when the licensee is found to have committed one or more violations enumerated in that section.


  33. In the instant case, the Notice to Show Cause charges the Respondent with the following violations:


    1. A violation of Florida Statute 893.13(1)(a) and Florida Statute 561.29(1)(a), by the felony sale or delivery of cocaine on the licensed premises by an employee;


    2. A violation of Florida Statutes 561.29(1)(a), 777.011 and/or

      777.04 by an employee aiding or abetting and/or conspiring with an employee to sell cocaine on the licensed premises;


    3. A violation of Florida Statutes 561.29(1)(a) and 893.13(2)(a)(5) by maintaining the licensed premises as a place resorted to by persons using controlled substances; and


    4. A violation of Florida Statutes 561.29(1)(c) 561.29(1)(a), 823.10, and 823.01 by maintaining a public nuisance on the licensed premises. Each of these charges arises out of the sale of cocaine by an employee of the licensed premises to an undercover beverage officer on October 14, 20, 23 and 27 and November 3, 1983.


  34. Section 561.29(1)(a), Florida Statutes (1981) empowers the Division of Alcoholic Beverages and Tobacco to revoke or suspend an alcoholic beverage license if it finds that the licensee or his agents, servants, or employees are permitting another on the licensed premises to violate any of the laws of this state or the United States. Section 561.01(11) defines the "licensed premises" to include the building area where alcoholic beverages are served and the area embraced within the sketch of the premises attached to the license application. Based upon the evidence, the licensed premises in the instant case is limited to the lounge itself.


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


  36. 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). Florida Statute Section 776.011. It is also unlawful to aid or abet in the commission of a violation of Chapter 893, Florida Statutes or to conspire with another to commit a violation of that chapter. Florida Statute 777.011 (1981)

  37. Florida Statutes 893.13(2)(1)(5) 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.


  38. 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 (1981). Section 823.10 of the Florida Statutes declares a place or building where controlled substances are illegally kept, sold, or used to be a nuisance. Section 823.01, Florida Statutes, declares such a nuisance to be a violation of the criminal laws of the State of Florida.


  39. Licensees are not insurers against unlawful acts by their employees. Woodbury v. State Beverage Department, 219 So.2d 47 (Fla. 1st DCA 1969). In order to discipline Respondent's license, the Division of Alcoholic Beverages and Tobacco must prove the Respondent was culpably responsible for the violations alleged; that he is guilty either of intentional wrongdoing, or of condoning wrongdoing or failing to exercise due diligence in supervising and maintaining surveillance over the licensed premises. See, e.g., Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980); Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962); Golden Dolphin II v. State of Florida, Division of Alcoholic Beverages and Tobacco, 403 So.2d 1372 (Fla. 5th DCA 1981); G. & B. of Jacksonville, Inc. v. State, 371 So.2d 137 (Fla. 1st DCA 1979).


  40. In the instant case, the evidence clearly establishes that two employees of the licensed premises sold cocaine, a controlled substance, to an undercover Beverage Officer on the evenings of October 14, 20, 23, 27 and November 3 and 10, 1983. Each of these sales was made while the two men were on duty working as floor manager and doorman at the licensed premises. Each of the sales occurred on the licensed premises. The sole issue remaining is whether the licensee is culpably responsible for the illegal drug sales.


  41. There was no evidence that the licensee was involved in or knowingly condoned the drug activity. Therefore culpability, if it exists, must have been the result of negligence or the failure of the licensee to exercise diligence. The evidence does establish negligence on the part of the licensee.


  42. The evidence establishes that on six different nights between October

    14 and November 10, 1983, Beverage Officer Beverly Jenkins was able to purchase varying quantities of cocaine on the licensed premises. On October 8, when Officer Jenkins first visited the licensed premises she met Peter Follari who without any urging brought up the subject of cocaine. She had never met Follari before. On her second visit, Follari again brought up the subject of cocaine and actually sold a 1/2 gram packet of cocaine to Officer Jenkins.


  43. The exchanges of cocaine and currency were open enough that other beverage officers were able to observe the currency changing hands and on at

    least one occasion actually observed the baggie of cocaine. There was no effort made on five of the sales to make the transfer where no other people were around. One of the transfers took place in the office.


  44. The conversations regarding the sales took place in a normal tone of voice and on one occasion, Bear yelled "Toot it good" to Pete Follari. Several of the transfers occurred on evenings when Frank Tiberio as well as Butch Sucharski were on the licensed premises. There was no evidence that either of these people was aware of the drug sales. There was, however, clear evidence that Butch and Frank had serious concerns and suspicions about Bear.


  45. These suspicions were strong enough that on two separate occasions Bear was searched. They had also heard rumors that Bear was into drugs and Frank had heard rumors that someone was selling drugs on the licensed premises. In light of this information, there was no evidence that Bear was either terminated or placed under any kind of surveillance. Bear felt so secure that on one evening he stood near the entrance counting what appeared to be packets of cocaine.


  46. Although several employees were fired because of drugs and numerous patrons were thrown out of the premises for drugs, there was evidence of only one occasion where the police were brought in. That incident involved one of the patrons snorting cocaine openly on one of the tables in the patio area.


  47. There were searches made of employees who were suspected of using drugs, but there was no announced policy of random searches of all employees. There was also no effort made to inform patrons that they would be prosecuted if caught using drugs on the licensed premises. It was a customer of the bar that was supplying cocaine to Bear for resale.


  48. Although many steps were taken to prevent drugs from being brought into the licensed premises, the steps taken were not stringent enough in light of the suspicions about Bear and the prevalence of drugs in South Florida. The worst sanction for employees caught with drugs was termination and in Bear's case that sanction was not used after suspicions on two different occasions. Although management clearly opposed drugs on the premises, there was an atmosphere created which caused two employees to feel they could openly deal cocaine without serious repercussions.


  49. The owners relied upon their son and the night manager to provide the necessary security during the late night hours when the various purchases occurred. Had these two individuals aggressively monitored the activities of all employees on a constant basis, there would have been no opportunity for the continuing and persistent pattern of open drug sales to occur.


  50. The evidence did not establish that the licensed premises are a nuisance as alleged in Count 8 of the Notice to Show Cause.


  51. Penalty: License revocation is an extreme and drastic penalty which should be applied only in the most flagrant cases. Taylor v. State Beverage Department, 194 So.2d 321 (Fla. 2d DCA 1962). In this case the licensee is a corporation owned by a very reputable and hardworking family. There was no evidence to show that they encouraged or condoned the drug activity. There is ample evidence that several steps were in fact taken to prevent such drug transactions. These steps in light of the suspicions of the managers and the prevalence of drugs fell below the due diligence standard, but showed a clear attempt to deal with the problem. The sales were limited to two employees who

have now been terminated. Under the circumstances, it is concluded that an appropriate penalty would be a forty-five day suspension and a $3,000 fine or

$500 for each of the six transactions.


RECOMMENDATION


Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That a Final Order be entered finding the Respondent guilty of the violations charged in Counts 1 through 7 and that the license be suspended for a period of thirty days with credit for the days the premises were closed under the emergency order and imposing a civil penalty of $3,000.


DONE and ORDERED this 16th day of December, 1983, 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 16th day of December, 1983.


COPIES FURNISHED:


James N. Watson, Jr., Esquire Staff Attorney

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


Seymour Chadroff, Esquire Lane Abraham, Esquire

200 S.E. First Street, No. 1101 Miami, Florida 33131


Howard M. Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

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


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


Docket for Case No: 83-003654
Issue Date Proceedings
Dec. 16, 1983 Recommended Order sent out. CASE CLOSED.

Orders for Case No: 83-003654
Issue Date Document Summary
Dec. 16, 1983 Recommended Order Respondent violated statute by allowing narcotics to be sold/consumed on licensed premises. Recommend civil fine and suspension of license.
Source:  Florida - Division of Administrative Hearings

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