STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0630

)

LESLIE G. HESSINGS, t/a )

TWILIGHT INN, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with notice furnished the parties on March 20, 1984, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in West Palm Beach, Florida on May 31, 1984. The issue for consideration was whether the Respondent's alcoholic beverage license issued by the State of Florida should be disciplined because of the alleged misconduct contained in the Notice To Show Cause filed against Respondent in this case.

APPEARANCES

For Petitioner: Louisa E. Hargrett, Esquire

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

For Respondent: Thomas Montgomery, Esquire

1 Southeast Avenue East Post Office Box 788

Belle Glade, Florida 33430 BACKGROUND INFORMATION

H. M. Rasmussen, Director of the Division of Alcoholic Beverages and Tobacco issued a Notice To Show Cause in this case on April 11, 1983, which was subsequently served on Mr. Montgomery as attorney for the licensee on April 20, 1983. This Notice To Show Cause indicated the Division's intent to discipline Respondent's beverage license because of alleged sales of marijuana on January 25, 1983; the possession of marijuana in excess of twenty (20) grams and of lottery tickets on the licensed premises on January 26, 1983, and by operating the premises as a public nuisance on both January 25, and 26, 1983, in violation of Chapters 893, 849, and 823, Florida Statutes, 1981. Respondent requested a hearing on a matter and at the hearing, Petitioner called Russell R. Smith, a beverage lieutenant and records custodian in the West Palm Beach office of the Division of Alcoholic Beverages and Tobacco; Richard Browning, a deputy sheriff with the Palm Beach County Sheriff's Department stationed in Belle Glade; Steve

Hallar, III, a detective with the Palm Beach County Sheriff's Office in Belle Glade, Clark A. Raby, an investigator with the Division of Alcoholic Beverages and Tobacco, Live Oak, Florida office; Amerigo J. Braido, a Crime Scene Investigator with the Palm Beach/County Sheriff's Department; and Jay Pintacuda, a chemist with the Palm Beach County Sheriff's Department Crime Lab, as well as Petitioner's Exhibits 1 through 7. Respondent offered no evidence, called no witness.

Counsel have submitted Proposed Recommended Orders in this case, including Findings Of Fact, Conclusions of Law, and Recommendations which have been considered thoroughly in the preparation of this Recommended Order. To the extent that they are not incorporated herein, they were disregarded as being erroneous, irrelevant, immaterial, or not otherwise supported by the evidence of record.

FINDINGS OF FACT

1. At all times pertinent to the allegations herein, Respondent, Leslie G. Hessings, held Florida Alcoholic Beverage License Series Number 2-COP, License Number 60-351, for the Twilight Inn located at 121 Southwest Fifth Street, Belle Glade, Florida.

   
   

2. The Palm Beach County Sheriff's Department, based on information received from street sources indicating the presence of narcotics on the Respondent's premises, on January 25, 1983, undertook an investigation of Respondent's operation through the use of a confidential informant subsequently identified as Samuel Colman.

   
   

3. During the early part of the day on January 25, 1983, Sergeant Richard Browning of the Belle Glade office of the Palm Beach County Sheriff's Department, conducted a formal briefing of the confidential informant, Mr. Colman, as to his duties in the impending investigation. Mr. Colman was a professional informant who had worked for the Sheriff's Department before. Consequently their briefing was primarily to tell him where to go as he was already familiar with the procedures. His person and his vehicle were thoroughly searched for drugs and found to be completely clean. He then was furnished a hidden transmitter that would permit everything he said and did to be heard by Sheriff's Department agents who would be posted nearby with a receiver.

   
   

4. Robinson and Hallar gave Colman $20.00 in money belonging to the police department and sent him to attempt to make a purchase of a controlled narcotic in the Respondent's establishment. At all times from the instant Mr. Colman was searched and wired until such time as he entered the establishment approximately

   400 or 500 feet down the street from where Robinson and Hallar were parked in their car, Colman was in their sight. They saw Colman enter the bar; heard him carry on small talk with some other individuals; and order a beer. After ordering the beer he engaged in conversation with some individual about buying reefers. It appeared to Hallar and Robinson that this individual with whom Colman spoke regarding buying marijuana was the same individual from whom he purchased the beer, the bartender but neither knew who the voice belonged to. In fact he did make a purchase in the bar and after finishing his beer, left.

   
   

5. From the time Colman left the bar until he arrived at the car where

   Browning and Hallar were sitting, he again was constantly in sight. When he got to the car, he pulled from his pocket two (2) bags of what was subsequently identified by the Palm Beach County Sheriff's Department Crime Lab as marijuana, and gave them to Sergeant Browning.

   
   

6. Browning and Hallar, accompanied by Mr. Colman went back to the bar area later in the afternoon just about dusk and sent Colman back to the bar to try and buy from the owner/manager whom they knew to be Shirley Hessings.

   Before going in the second time, the informant was again thoroughly searched, as was his vehicle, and he was provided with police money. From the time he left the two officers until he entered the bar he was constantly in their sight.

   
   

7. Colman was again wearing the radio transmitter and when he entered the bar the officers heard the juke box and heard Colman speak to several unidentified individuals. They also heard him speak to someone identified to them as Shirley and heard him say after leaving the bar that he bought a $8.00 bag from a black female who was identified to him as Shirley. The officers were unable to hear any of the conversation between Colman and the individual identified as Shirley because of the background noise on the tape caused by the juke box. However, when he arrived at the car where the officers were located, after being in constant sight after he left the bar until arriving at the car, he turned over to them an $8.00 bag of what was subsequently identified by the Palm Beach County Sheriff's Department Crime Lab as marijuana.

   
   

8. Samuel Colman is dead and therefore did not testify at the hearing. The testimony of both Sergeant Browning and Detective Hallar concerning what Colman told them as to the identity of the individuals from whom he purchased the marijuana is hearsay and, as such cannot, without corroboration, serve as the basis for a finding of fact. It must be concluded therefore that while there is no doubt that Colman purchased marijuana while he was in the Twilight bar on January 25, it cannot be established who he purchased it from.

   
   

9. Based on the two (2) buys, however, the police obtained a search warrant for the premises that was used as the basis for a search conducted on January 26 or 27, 1983. When they entered the Twilight bar pursuant to the warrant, the only individual present at the time was a black female identified as Beverly Hessings. Beverly Hessings is Respondent's sister.

   
   

10. Detective Hallar was involved in the search of the Twilight Inn on January 26. When he entered the bar he found nineteen (19) $8.00 bags of a substance, subsequently identified as marijuana, packaged for sale in the store room. The little bags were hidden from plain view and were located in a candy box lid. They were identical with those previously given him by Samuel Colman after his two (2) controlled buys. Officer Hallar left the little baggies where they were and called the evidence custodian, Sergeant Braido, who took custody of them.

    
    

11. Officer Dowdell of the Belle Glade Police Department was also a participant in the search on January 26 or 27. During the search he found a brown paper bag containing twenty-one (21) small manila envelopes which was under a hole in the cushion on a bench which was located on the north side of the dance floor. Dowdell took the paper bag to Detective Simons who in turn immediately released it to Detective Braido. These twenty-one (21) bags, each contained a substance which was subsequently identified as marijuana.

    
    

12. When Dowdell entered the bar he observed between ten (10) and twenty

    (20) patrons. The officers had the patrons stand up against the wall while the

    search was going on. The bar is dark even during the day time, but it is lighted on the inside, though dimly, and it is possible to see. While the search was going on a policeman was stationed at each exit and it is unlikely any of the patrons or staff were able to exit the bar from the time the search was commenced.

    
    

13. Another participant in the search was DABT Investigator Clark Raby, who was present because of a request from the Palm Beach County Sheriff's Department due to the fact the premises were licensed by Petitioner. Raby's area to search was the kitchen and laid out on a table in the kitchen he found what appeared to be several lottery tickets which he confiscated and maintained until he was able to relinquish them to the evidence custodian. These tickets, which appeared to be yellow sales slips bearing no proprietory identification - the kind of check one might get in a hardware store - had numbers printed on the bottom, but also had a series of numbers written on the check along with amounts of money written thereon. These tickets were in plain view on the table in the kitchen and Raby identifies them as bolita lottery tickets by virtue of his experience with such kinds of tickets in the past.

    
    

14. At the close of Petitioner's case, respondent moved to dismiss the Notice To Show Cause on the basis that Petitioner had failed to establish that Respondent had a license on the dates alleged on the Notice To Show Cause. He contended that the actual license or a copy thereof was not admitted into evidence, which is true, and that the testimony of Lieutenant Smith indicated only that Respondent had a license in January, 1983. This testimony was adequate, absent a showing that Respondent held a license for less than an entire month, to establish jurisdiction and the motion was denied. Respondent also moved to dismiss on the basis that the testimony of the investigating officers as well as the sheets upon which the chemist's analysis of the substances was recorded reflected dates other than those alleged in the Notice To Show Cause as being the dates on which the offenses took place. It was obvious from an examination of the analysis sheets that they reflected, as to the individual buys, the correct date. As to the substance discovered during the search, the analysis sheet reflected January 27, which is one day later than the date listed in the Notice To Show Cause. The Notice to Show Cause reflected that the substance was on the license premises on or about January 26, which is sufficiently related in time to the evidence to support a denial of the motion to dismiss.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding

    
    

16. In the five (5) subparagraphs of the Notice To Show Cause which allege violations of the Florida Statutes, none specifically refers to a subsection of Chapter 561. The only reference to this Chapter is found in that portion of the Notice To Show Cause where the allegation is made that evidence exists to support discipline under that Chapter. The specific allegations refer to the sale or possession of marijuana in violation of Section 893.13(1)(a), the possession of lottery tickets in violation of Section 849.09, and the maintenance of the licensed premises as a public nuisance in violation of Section 823.10, Florida Statutes.

    
    

17. Section 893.13(1)(a), Florida Statues makes it unlawful for any person to, inter alia, sell or possess a controlled substance. Marijuana (cannabis) is identified as a controlled substance.

18. Section 849.09, Florida Statutes, makes it unlawful in Florida to set up, promote, or conduct any lottery (849.09(1)(a)) or to have in his possession any. . . device whatsoever for conducting any lottery or scheme for the disposal by lot or chance of anything of value (849.09(1)(f).

    
    

19. Section 823.10, Florida Statutes makes it an offense to maintain a public nuisance by keeping a place that is used for the illegal keeping, selling, or delivering of a substance controlled under Chapter 893. It has already been concluded that marijuana is such a controlled substance. The evidence taken as a whole here, while perhaps not sufficient to support a conclusion that an employee of the license sold or delivered marijuana as alleged, is nonetheless sufficient to establish that marijuana was kept and sold on the licensed premises and this constitutes a public nuisance as alleged in subparagraph five (5) of the Notice To Show Cause.

    
    

20. As was stated above, there is some substantial problem with arriving at a conclusion that the allegations in subparagraphs one (1) and (2) of the Notice To Show Cause have been proven. The agents were not present at the time either purchase was made and cannot, themselves, identify the individual by whom the sales were made. In regard to the alleged sale by the bartender which was heard over the transmitter, neither agent was familiar with the voice of the bartender nor did they hear anything identifying the bartender as the seller.

    In regard to the alleged sale by Shirley Hessings, they admit they did not hear the sale take place because of background noise. While this evidence is sufficient to support a conclusion that sales took place on the premises so as to conclude that a nuisance was maintained, the only evidence to identify the sellers is the hearsay testimony of the confidential informant, Mr. Coleman, who is deceased. It is, therefore, impossible to conclude that the violations alleged in subparagraphs one and two have been proven.

    
    

21. The situation is substantially different regarding the allegations in subparagraphs three and four. In this case, the evidence is clear that Respondent's sister, Beverly Hessings, was in charge and was, in fact, the only person present. The discovery of marijuana on the premises packaged identical to that purchased there earlier by Mr. Coleman and of what has clearly been shown to be lottery tickets in plain view in the kitchen is sufficient to establish the violations alleged in these subparagraphs.

    
    

22. It having been established that three (3) of the five (5) alleged offenses, to-wit: the illegal possession of narcotics with intent to sell on January 26, 1983; the possession of lottery tickets on the licensed premises, on the same date; and the maintaining of a nuisance on that day and the day previously, took place, the question remains as to what should be done about it. It is clear that the Petitioner has the authority to discipline a license holder when either the licensee or his agents or employees have violated certain laws of the State on the licensed premises. Section 561.29(1)(a) Florida Statutes, provides that a liquor license may be disciplined upon the showing of:

    
    

    1. Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employ- ment, of any of the laws of this state or of the United States, or violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages, or engaging in or permitting disorderly conduct on

       the licensed premises, or permitting another on the licensed premises to violate any of the laws of this state or of the United States; except that whether or not the licensee or his or its agents, officers, servants, or employees have

       been convicted in any criminal court of any violation as set forth in this paragraph shall not be considered in proceedings before the division for suspension

       or revocation of a license except as permitted by chapter 92 or the rules of evidence.

       
       

23. Here there is no evidence that Respondent personally violated the laws

- only his employees. However, a licensee has the obligation to maintain a sufficient intelligence with regard to his own establishment so as to know, at least generally, what his employees are doing, 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 So2d 138 (Fla. 1st DCA 1979). Nonetheless, this case and others (See Pauline v. Lee, 147 So2d 359 (Fla. 2d DCA 1962); Golden Dolphin No. 2, Inc., v. State, Division of Alcoholic Beverages & Tobacco, 403 So2d 1372 (Fla. 5th DCA 1981); also stand for the proposition that the licensee is not an absolute insurer against violations of the law on his premises even when committed by his employees and that an isolated violation or incident is not a basis for revoking a beverage license. See also, Rex Allen Jones t/a Happy Hour v. State, Division of Alcoholic Beverages and Tobacco, Case No. AO-132 (Fla. 1st DCA 1984), opinion filed March 30, 1984. Consequently, while discipline is appropriate, revocation is not, in this case.

RECOMMENDED ACTION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore,

RECOMMENDED that Respondent, Leslie G. Hessings, t/a Twilight Inn, pay a fine of $1,000.00.

DONE and RECOMMENDED this 24th day of August, 1984, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1984.

COPIES FURNISHED:

Howard M. Rasmussen, Director Division of Alcoholic Beverages

& Tobacco

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32301

Gary R. Rutledge, Secretary Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32301

Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Thomas Montgomery, Esquire

1 Southeast Avenue East Post Office Box 788

Belle Glade, Florida 33430

Leslie G. Hessings c/o Twilight Inn

121 S.W. Fifth Street Belle Glade, Florida

Lt. Russell R. Smith Division of Beverage Post Office Drawer 2750

West Palm Beach, Florida 33402

Docket for Case No: 84-000630

Orders for Case No: 84-000630