STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS )
REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 84-2788
)
FRED M. BEDRAN, d/b/a )
FANDANGO'S, )
)
Respondent. )
)
RECOMMENDED ORDER
A final hearing was held in this case in Jacksonville, on August 8, 1984. The issue is whether petitioner Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT), should revoke, suspend or otherwise discipline the alcoholic beverage license number 26-1456, series 2-COP, issued to respondent Fred M. Bedran to operate Fandango's, a bar located at 3024 Lenox Avenue, Jacksonville, Florida, upon the following grounds alleged in DABT's Notice to Show Cause issued July 31, 1984:
Between the date of May 31, 1984 and July 19, 1984, you, Fred M. Bedran, d/b/a Fandango's, have maintained a licensed premise as a place which is used for keeping or selling controlled substances in violation of Florida
Statutes 893.13(2)(a)5. and 561.29(1)(a).
Between the dates of May 31, 1984 and July 19, 1984, you, Fred M. Bedran,
d/b/a Fandango's, have maintained and continue to maintain a public nuisance on your licensed premises, to wit:
a place or building which is visited by persons for the purpose of unlaw- fully using, keeping, selling and/or delivering controlled substances in violation of Chapter 893, Florida Statutes, such being a violation of Florida Statutes 561.29(1)(a), 561.29 (1)(c), 823.01, and 823.10.
On or about May 31, 1984, you, Fred
M. Bedran, d/b/a Fandango's, licensed under the Beverage Laws, your servant, agent, or employee, to wit: Nancy Newberry, did violate F.S. 561.29(1)(a)
to wit: did sell or deliver cocaine to Beverage Investigator Sams on your licensed premises in violation of
F.S. 893.13.
On or about June 1, 1984, you, Fred M. Bedran, d/b/a Fandango's, licensed under the Beverage Laws, your servant, agent,
or employee, to wit: Nancy Newberry, did violate F.S. 561.29 (1)(a) to wit: did sell or deliver cocaine to Beverage Investigator Sams on your licensed pre- mises in violation of F.S. 893.13.
On or about June 7, 1984, you, Fred M. Bedran, d/b/a Fandango's, licensed under the Beverage Laws, your servant, agent,
or employee, to wit: Nancy Newberry, did violate F.S. 561.29(1)(a) to wit: did sell or deliver cocaine to Beverage Inves- tigator Sams on your licensed premises in violation of F.S. 893.13.
On or about June 8, 1984, you, Fred M. Bedran, d/b/a Fandango's, licensed under the Beverage Laws, your servant, agent, or employee, to wit: Nancy Newberry, did violate F.S. 561.29(1)(a) to wit: did sell or deliver cocaine to Beverage
Investigator Sams on your licensed premises in violation of F.S. 893.13.
On or about June 15, 1984, you, Fred M. Bedran, d/b/a Fandango's, licensed under the Beverage Laws, your servant, agent, or
employee, to wit: Sandy Oliver, did violate
F.S. 561.29(1)(a) to wit: did aid in the sale or delivery of cocaine on your licensed premises to Beverage Investigator Sams in violation of F.S. 893.13(1)(a) and Section 777.011, Florida Statutes.
On or about June 15, 1984, you, Fred M. Bedran, d/b/a Fandango's, licensed under the Beverage Laws, your servant, agent, or
employee, to wit: did sell or deliver cocaine to Beverage Investigator Sams on your licensed premises in violation of F.S. 893.13.
On or about June 26, 1984, you, Fred
M. Bedran, d/b/a Fandango's, licensed under the Beverage Laws, your servant, agent, or employee, to wit: Terry Middleton, did violate F.S. 561.29(1)(a)
to wit: did sell or deliver marijuana to Beverage Investigator Wilder on your licensed premises in violation of
F.S. 893.13.
On or about June 29, 3984, you, Fred M.
Bedran d/b/a Fandango's, licensed under the Beverage Laws, your servant, agent, or employee, to wit: Nancy Newberry, did violate F.S. 561.29(1)(a) to wit: did sell or deliver cocaine to Beverage Investigator Sams on your licensed premises in violation of F.S. 893.13.
On or about July 6, 1984, you, Fred M. Bedran, d/b/a Fandango's, licensed under the Beverage Laws, your servant, agent,
or employee, to wit: Nancy Newberry, did violate F.S. 561.29(1)(a) to wit: did sell or deliver cocaine to Beverage Investigator Sams on your licensed pre- mises in violation of F.S. 893.13.
On or about July 6, 1984, you, Fred M.
Bedran d/b/a Fandango's, licensed under the Beverage Laws, your servant, agent, or employee, to wit: Sandy Oliver, did violate F.S. 561.29(1)(a) to wit: did sell or deliver darvocet-N tablets to
Beverage Investigator Sams on your licensed premises in violation of F.S. 893.13 (1)(a)2. and 893.03(4)(g)
On or about July 14, 1984, you, Fred M.
Bedran, d/b/a Fandango's, licensed under the Beverage Laws, your servant, agent, or employee, to wit: Chris Middleton, did violate F.S. 561.29(1)(a) to wit: did sell or deliver cocaine to Beverage Investigator Sams on your licensed pre- mises in violation of F.S. 893.13.
On or about July 16, 1984, you, Fred M.
Bedran, d/b/a Fandango's, licensed under the Beverage Laws, your servant, agent, or employee, to wit: Terry Lynn Gougler, did violate F.S. 561.29(1)(a), to wit: did sell or deliver cocaine to Beverage
Investigator Sams on your licensed premises in violation of F.S. 893.13.
On or about July 24, 1984, you, Fred M.
Bedran d/b/a Fandango's, licensed under the Beverage Laws, your servant, agent, or employee, to wit: Bobbie Jean Berry,
did violate F.S. 561.29(1)(a), to wit:
did sell or deliver marijuana to Beverage Investigator Sams on your licensed pre- mises in violation of F.S. 893.13.
FINDINGS OF FACT 1/
Fred M. Bedran is the holder of alcoholic beverage license no. 26-1456, 2-COP, doing business at 3024 Lenox Avenue, Jacksonville, Florida as a bar called Fandango's. Respondent has owned and operated Fandango's, a topless dance bar, since July 1980 without any drug or other incidents having come to respondent's or DABT's attention.
Respondent also has owned and operated other Jacksonville bars licensed and regulated by DABT for 12-13 years without incident other than one occasion over ten years ago when a 17 year old was discovered in the premises and present while other patrons were drinking alcoholic beverages.
Respondent has a standard policy at Fandango's and all his bars prohibiting employees from having illegal drugs or hard liquor on the premises and from being intoxicated by any drug, including alcohol, while on duty. A notice to this effect was posted in the ladies room at Fandango's used by respondent's employed dancers. Respondent also orally advises his employees of his policy in this regard.
Respondent himself is at Fandango's daily at about 10 a.m. to prepare for opening the bar, usually leaving at about 2 p.m. unless maintenance (which respondent does himself) requires that he stay longer. He usually returns to Fandango's at approximately 11 p.m. and stays until closing at about 2 in the morning. While at the bar, respondent does work as needed, observes the bar's operation and consults with his manager and employees as needed in an effort to be sure the bar operates smoothly.
Before May 1984, respondent observed no sign of illegal drug use on the premises of Fandango's.
Shortly before May 23, 1984, DABT investigators Sams and Wilder began to investigate Fandango's at 3024 Lenox Avenue, Jacksonville, Florida. They patronized the bar several times before May 23, 1984 to become familiar to the employees of the establishment.
On or about May 23, 1984, an on-duty Fandango's bartender/dancer named Nancy Newberry, after being approached by Sams, advised Investigator Sams that she used cocaine and knew about cutting cocaine with "mannitol" and "isotol". While behind the bar and in the scope of employment, Newberry made contact with a man named Larry who had entered the bar. Newberry told Investigators Sams and Wilder that Larry was "her trip" (referring to her acid/LSD source).
On or about May 24, 1984, Newberry was behind the bar performing normal bartending duties. Newberry let Investigators Sams and Wilder know that she was "tripping on acid" (under the influence of LSD). Newberry stated she had purchased "acid" from Larry on the previous night. Newberry told Investigator Sams that she knew people who could get good quality uncut cocaine. Newberry quoted prices of $225.00 for 1/8 of an ounce and grams for $100.00. Newberry offered to "cut" Sams "a line" of cocaine as a sample, but she then got busy and
never did. Newberry advised Investigator Sams that she was in possession of 1/2 gram of cocaine and 1/2 of a "joint" (marijuana) that she had been sharing with the other girls in the ladies room.
On or about May 30, 1984, a dancer, identified as Johnnie Mae McGowan, a/k/a Jamie and Nancy Newberry solicited marijuana from Investigator Sams. At approximately 10 p.m., a bartender/dancer identified as Sandy Oliver obtained some pills from an unknown patron who was inside the licensed premises. Oliver subsequently consumed the pills while seated at the bar in the presence of Investigators Sams and Wilder and Fandango's manager, Gary Brumbalough. Brumbalough observed: "She's going to OD if she doesn't watch it." Sandy Oliver was later carried into the restroom in an unconscious state.
On or about May 31, 1984, Investigators Sams and Wilder reentered the premises. Newberry who was working as a dancer that night, advised Investigator Sams that she had half a gram of cocaine. Newberry told Investigator Sams he would have to front $100.00 for a gram of cocaine. Investigator Sams asked Newberry to cut him a couple of lines of coke from her half gram as a sample for Investigator Sams. Sams handed Newberry an empty glass vial. Newberry took the vial and went into the ladies room. Newberry exited a few minutes later and handed Sams the glass vial which now contained cocaine. Newberry stated to Investigator Sams: "It doesn't look like much, but I put three good rocks in it (referring to pure cocaine crystals)."
On or about June 1, 1984, Investigators Sams and Wilder returned to the premises. Newberry asked Investigator Sams if he was still interested in purchasing cocaine. Investigator Sams stated "yes". Newberry then made a phone call on the pay phone inside the licensed premises. After hanging up the phone, Newberry advised Investigator Sams she would have the cocaine in 15 minutes. A few minutes later, Newberry received a phone call on the same pay phone inside the premises. Newberry talked for a minute and then motioned Investigator Sams to the phone. Newberry asked Investigator Sams if it was okay if she held the
$100.00. Sams replied that it would be okay. Newberry relayed this information to the person she was talking to. Investigator Sams handed Newberry $100.00.
Newberry later met with an unknown subject outside the front area of the premises and obtained a gram of cocaine for Investigator Sams. Newberry reentered the premises with the cocaine and told Investigator Sams to follow her. Investigator Sams followed Newberry as proceeded outside through the back door of the premises. Investigator Sams stood with Newberry approximately 2 to
3 feet to the right of the rear door area. Newberry handed Investigator Sams a clear, triangular shaped plastic bag containing cocaine, represented as a 1-gram bag. Newberry also showed Investigator Sams half-gram bags of suspected cocaine, and stated that she had to sell these also.
Prior to this cocaine sale, Newberry gave Investigator Sams, free of charge, two white oblong shaped tablets she represented to Investigator Sams as being "pharmaceutical speed" (amphetamines). She offered some to Wilder, too, who declined. The three also discussed LSD along with Brumbalough. Brumbalough said he had seen the source, Larry, at another bar earlier in the evening.
On or about June 7, 1984, Investigators Sams and Wilder returned to the premises. Upon entering the premises, a dancer identified as Johnnie Mae McGowan approached Investigator Sams. She sniffed twice and asked Investigator Sams: "You need anything from me or Nancy?" Investigator Sams ordered two half grams of cocaine from Newberry at $50 per half gram. Newberry advised Investigator Sams she had a one-quarter gram and a half gram left which she had to sell before she could "Z-up" (referring to purchasing for resale from her
source in ounce or partial ounce quantities). Newberry told Investigator Sams that she and Jamie McGowan were pooling their money together and purchasing in 1/8 ounce quantities. Investigator Sams later handed Newberry $75.00 while she was standing in front of the juke box in the lounge area of the premises, and advised he wanted the 1/4 ounce and 1/2 ounce bags of cocaine. Newberry reached into a small white change purse and got two triangular shaped clear plastic bags of cocaine which she then handed to Sams. Newberry stated to Investigator Sams she would be expecting some more cocaine in approximately 1/2 hour. On this same night Investigators Sams and Wilder observed Newberry and McGowan smoking a partial marijuana cigarette inside the bar's pool room area, but they were not in plain view of anyone outside the pool room or the area near the entrance from the bar to the pool room.
After purchasing the cocaine from Newberry, Investigator Sams talked with Fandango's manager, Gary Brumbalough. Sams advised Brumbalough that he had purchased cocaine from Newberry. Brumbalough told Investigator Sams that Brumbalough did acid sometimes and that the acid source known as Larry was currently out of town.
On or about June 8, 1984, Investigators Sams and Wilder returned to the premises. Newberry came out of the ladies room where she had been using drugs, and walked to the bar where Investigator Sams was sitting. She approached Sams and made obvious sniffing sounds, had watering eyes, and made a statement to Investigator Sans about how good she was feeling. Investigator Sams later asked Newberry if she had a half gram of cocaine. Newberry replied that she did and went into the ladies room. Newberry exited the ladies room end met Investigator Sams to the far right of the partition separating the pool room area from the bar area. Sams handed Newberry $50.00. Newberry handed Sams a triangular shaped clear plastic bag containing cocaine.
On or about June 14, 1984, Investigators Sams and Wilder returned to the premises. Manager Gary Brumbalough told Investigator Wilder that Larry was supposed to deliver the acid to the bar on this date. Larry never showed up on this date, and Brumbalough agreed to continue to hold Wilder's $20.00 in hopes of locating Larry. Brumbalough told Sams on this date that Wilder should be careful when taking this acid because it was very strong stuff. Brumbalough said that he takes half of a "cap" or "shaves it down".
On or about June 15, 1984, Investigators Wilder and Sams returned to the premises. Brumbalough advised Investigator Wilder that Larry was again supposed to deliver the acid to the bar. Larry never showed up. At approximately 7:55 p.m., Investigator Sams, who was playing pool with bartender/dancer Sandy Oliver, handed her $50.00 and asked her to give the money to Newberry who was in the ladies room at the time, saying: "She'll know what it's for." Oliver entered the ladies room. She exited a minute later and advised Sams she had delivered the money. Oliver advised Investigator Sams that it was hard for her to see other people purchase drugs because she was trying to beat a cocaine habit. Oliver told Sams that she knew that Newberry and McGowan purchased their cocaine from the same source and that the coke was cut three times. Newberry exited the ladies room a few minutes later and delivered a triangular shaped clear plastic bag containing cocaine to Sams by allowing him to remove it from the halter top of her dancing costume. Also on this date, Newberry again gave Investigator Sams two white oblong shaped tablets that Newberry and dancers Oliver and Terry Middleton represented to be "pharmaceutical speed".
On or about June 20, 1984, Investigators Sams and Wilder returned to the premises. Newberry received several phone calls. At about 10:30 p.m., after receiving one call, Newberry replied in a loud voice, in front of other people including Manager Brumbalough, "front, front, front, front, everyone wants me to front" (referring to buying cocaine on a cash basis for delivery to people who order it on a credit basis). Newberry told Investigator Sams that a person she calls "Wild Bill" had asked her to front him a gram of cocaine. Newberry advised that dancers Terry and Chris Middleton also owed her money because she fronted them cocaine. Later, Terry Middleton told Investigators Wilder and Sams that she and her sister, Chris, had been purchasing cocaine from Newberry. Sams mentioned to Terry Middleton: "It's hard to find good marijuana on the west side [of Jacksonville]. Middleton told Investigators Sams and Wilder she could get bags of good "sents" (Sensimilla marijuana) or "Colombian" for $35.00 a bag. Terry advised she could have the marijuana the following night.
On or about June 21, 1984, Investigators Sams and Wilder returned to the premises. Terry Middleton advised investigators Wilder and Sams that her source would deliver the marijuana to the bar as soon as it stopped raining.
The subject was to deliver the marijuana on a motorcycle, but the rain never stopped. Investigator Wilder made arrangements to purchase the marijuana at the bar from Terry on June 26, 1984.
On or about June 26, 1984, at approximately 6:55 p.m., Investigator Wilder advised Terry Middleton that he still wanted a bag of marijuana. Middleton told Investigator Wilder that her sister, Chris, had the car, and she would have to wait for Chris to get back because she might have to go get the marijuana. Investigators Sams and Wilder entered Fandango's at approximately 7:15 p.m. About 10 minutes later, Middleton advised Sams and Wilder that she would make a phone call. Middleton made a call on the pay phone inside the licensed premises. After completing the call, Middleton advised Investigator Wilder that she had called a neighbor and left a message to the neighbor to have her sister, Chris, or Mark call her at the bar. At about 7:30 p.m. Middleton received a call. After completing the call, Middleton advised Investigator Wilder that Mark had called and told her he would be at Fandango's in 30 minutes and to get the $35.00 up front. Wilder then handed Middleton the $35.00. At about 7:45 p.m., Middleton received another phone call. After completing her phone call, Middleton advised Investigator Wilder that Mark had told her he would bring the bag of marijuana to the bar at 8:30 p.m. At approximately 8:50 p.m., Mark Ruel arrived at the licensed premises. Ruel entered the licensed premises and made immediate contact with Middleton. Middleton and Ruel walked out the back door of the licensed premises. They came back in approximately 1 minute later. Middleton walked directly to Investigator Wilder and stated "let's go out back."
On or about June 29, 1984, at approximately 9:40 p.m., Investigator Sams approached Newberry and purchased a 1/4 gram of cocaine from her for
$25.00. Newberry telephoned "Wild Bill" and reported: "I just called. It's coming." McGowan drove up with her boyfriend Ray Charles Arnold, her and Newberry's cocaine source, and got out. When she entered the bar, Sams asked: "Anyone deliver any coke for me?" McGowan answered: "Nancy has her stuff." The buy later took place inside the licensed premises near the bar area. About
1 hour later, Investigator Sams advised bar manager Brumbalough that he had purchased cocaine from Newberry and asked if Brumbalough wanted to do a cut of cocaine with him. Brumbalough said yes. Otherwise, as before, Brumbalough took no action.
On or about June 6, 1984, at approximately 8:55 p.m., Investigator Sams again approached Newberry and purchased another 1/4 gram of cocaine from her for $25.00 inside the licensed premises while seated at the bar. Arnold again delivered the cocaine, this time in a brown paper bag to Newberry. Newberry took it to McGowan in the ladies room and returned to Sams to say: "It'll be ready soon." While waiting, Sams and Oliver talked. Oliver reported that Larry had been in the bar the night before and sold LSD. Sams asked Brumbalough about it, and he confirmed it and said it was too bad Wilder was not there. Later, at about 10:25 p.m., Oliver told Sams she was taking Darvocet for tooth pain. She asked Sams if he wanted to try some. He accepted, and she gave him two. Later, she asked him how they were. Later, after Newberry delivered Sam's cocaine, Larry entered the bar. Sams asked Chris Middleton if Larry had any LSD; she checked and reported he did not. Brumbalough later approached Sams and suggested: "There's the man [Larry]; go talk to him." Sams replied he already knew Larry had no LSD for sale that night.
Fandango's is divided into three main areas: the bar area; the dance area with a stage and area for customer seating; and the pool room. The lighting is fair on the stage and the bar area, good in the pool room and poor in the customer seating area. All of the drug buys described herein, except the ones on June 1 and 15, could have been easily observed by employees and patrons of Fandango's.
Shortly before July 13, 1984, respondent learned from his new bartender, Bobbie Jean Berry, that Newberry, McGowan and Oliver were making many phone calls and frequently leaving the bar. Respondent asked her to keep an eye on them. On or about June 13, 1984, McGowan became enraged at Berry for making her miss a phone call and threw a beer mug at Berry. Respondent, when he heard of this, suspected McGowan of being involved in drugs. He ordered Brumbalough to fire Newberry, McGowan and Oliver and threatened to fire Brumbalough, primarily for allowing the disturbance to occur. Respondent agreed not to fire Brumbalough but put him on a probation of sorts. Shortly thereafter, Newberry and McGowan got jobs as dancers at another topless bar across town, Vanity Fair.
On or about July 14, 1984, Investigator Sams entered Fandango's. Sams mentioned to another Fandango's dancer, Terry Lynne Gougler, that he was sorry Newberry was no longer working since she was his cocaine connection. Gougler said she could get him cocaine at $45 for half a gram. She said Frances, Saturday daytime bartender at Fandango's, was her source. At approximately 7:50 p.m., Sams told dancer Chris Middleton that he was leaving to go across town to find a cocaine connection. Middleton told Sams she could get some cocaine by calling Nancy Newberry. Sams told Middleton that he wanted a 1/4 gram. Middleton made a phone call from the pay telephone inside the premises. After completing the call, Middleton advised Sams that Newberry would call Middleton in a few minutes. Middleton received a phone call a few minutes later. Middleton then advised Sams that he would have to give Middleton $25.00 for the 1/4 gram and she would meet Newberry in the ladies room to get the cocaine.
Sams gave Middleton $25.00. Newberry entered Fandango's about 8:00 p.m. Newberry and Middleton entered the ladies room and exited a few minutes later. On her way out, Newberry told Sams he should see her at Vanity Fair. Newberry then left the premises, and Middleton handed Sams a clear plastic bag of cocaine taped to the inside of a match book.
On or about July 16, 1984, Investigator Sams entered Fandango's. At approximately 8:50 p.m., Investigator Sams again talked with dancer Terry Lynne Gougler. Sams indicated that he wanted some cocaine from Gougler's source, Frances. Terry telephoned Frances and asked Investigator Sams to talk with
Frances. Sams spoke to Frances and told her that he wanted a 1/2 gram of cocaine. Terry then got back on the phone with Frances. After Terry finished talking to Frances, Terry advised Sams that a girl named "Cricket" would bring the cocaine. At about 9:35 p.m., "Cricket" had just entered the premises.
Terry followed "Cricket" into the ladies room. Terry exited the ladies room, walked to Investigator Sams and told him the price was $50.00. Sams gave $50.00 to Terry, and Terry walked back in the ladies room. While waiting for the cocaine, Sams complained to manager Brumbalough that a strange black male sitting across the bar was making him nervous since he was in the process of buying cocaine from Terry Gougler, who was about to return from the ladies room. Brumbalough replied that he did not know the man but that "Cricket's cool." Terry and "Cricket" exited the ladies room, and Terry delivered to Sams a clear plastic bag containing cocaine.
By July 20, Brumbalough had fired the Middletons for leaving the bar while on duty. He later rehired Chris because she was "good for business."
On or about July 20, 1984, Brumbalough rehired Sandy Oliver, who at this time was his live-in girlfriend, without respondent's knowledge. When respondent confronted Brumbalough, respondent was told that Oliver was not involved with drugs but was using Darvocet for tooth pain. Respondent was not aware of Oliver's overdose at the bar on May 30, 1984; he was aware of Oliver's attempted suicide at her home by a drug overdose. In any event, he chose to trust Brumbalough, who had been his manager for two years, and he allowed Oliver to continue to work at the bar.
On or about July 23, 1984, Investigator Sams entered Fandango's. Sams talked with the nightshift bartender identified as Bobbie Jean Berry. Sams asked Berry if she knew where he could get some marijuana. Berry told Sams she had tried to get some earlier. Berry told Sams that she would try to get a good bag for Sams the next night for $30. Sams also talked to Brumbalough, who discussed with Sams how to make drug buys. At about 11 p.m., Larry, the LSD source, entered the bar. Oliver told Sams that Larry would deliver LSD to the bar on the following Friday. When Sams asked what time, Oliver asked Larry and reported: "After 5:30."
On or about July 24, 1984, Investigator Sams returned to Fandango's. Berry was the on-duty bartender. Respondent was in the stage area helping put up a new stage. Sams asked Berry if she had gotten any marijuana. Berry said she had a bag she had paid $115 for that was not too good. Berry offered Sams a sample joint. Sams left the bar and returned later to buy a $30 bag. At approximately 8:00 p.m., Sams handed Berry a clear plastic zip-lock bag containing $30.00. Berry reached into her purse and, behind the bar, made up a
$30 bag of marijuana. She then placed it in a Kentucky Fried Chicken paper bag and placed it on top of the bar. Sams took the bag to the men's room.
On no occasion, other than July 24, did a drug transaction or discussion of drug transactions take place on the 4-5 occasions respondent was in the bar. From where respondent was in the stage area, he could not see or hear what was happening between Berry and Sams on July 24. On no occasion, other than respondent's discussion with Berry concerning frequency of telephone calls, did Sams or anyone else inform respondent that drug transactions were taking place at Fandango's.
After July 24, respondent observed that Chris Middleton was frequently telephoning and leaving the bar while on duty. He became suspicious of her, as he had of Newberry and McGowan. He had Brumbalough fire her.
On July 27, Sams and Wilder returned to get Wilder's $35 he had fronted for LSD. At about 6 p.m., Brumbalough told them Larry, the LSD source, would be back later with something other than LSD tablets at $3 a hit. When Larry came in, Brumbalough went to him, determined he had nothing and told this to Wilder. Brumbalough then returned Wilder's $35.
Fandango's was raided on August 1, 1984. An Emergency Suspension Order was served on respondent and a small amount of marijuana was found in Berry's purse. After reading the suspension order, respondent fired Brumbalough, Oliver, Berry and everyone else named in the suspension order.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding.
Section 561.29(1)(a), Florida Statutes (1983), 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 violating, or 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 are limited to the lounge itself.
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 of the Florida Statutes declares a place or building where controlled substances are illegally kept, sold, or used to be a nuisance.
Florida Statutes 893.13(2)(a)(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 vio- lation 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.
Cocaine and marijuana (cannabis) are controlled substances, and it is a violation of state law to sell, use, deliver, or possess them. Section 893.13, Florida Statutes (1983).
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, 325 So.2d 465 (Fla. 2d DCA 1976), State v. Dent, 322 So.2d 543 (Fla. 1975). Florida Statute Section 777.011.
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).
Although a single isolated incident may not serve as a basis for disciplining a beverage license, where the evidence shows a persistent or recurring activity, the fact finder may infer the licensee had knowledge. Golden Dolphin II v. State, supra, G.& B. of Jacksonville, Inc. d/b/a Out of Sight v. State, 371 So.2d 139 (Fla. 1st DCA 1979) appeal dismissed, 379 So.2d
205 (Fla. 1979) Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962). A licensee may not remove itself from responsibility by not being present on the premises or by claiming ignorance of the repeated violations. Pauline v. Lee, supra; G. & B. of Jacksonville, Inc. v. State, 371 So.2d 137 (Fla. 1st DCA 1979)
The evidence in this case establishes the violations described in paragraphs 1 through 8, 10, 11 and 13 through 15 of the Notice to Show Cause referred to above; the violation alleged in paragraphs 9 and 12 were not proven. Respondent was negligent in that he did not ensure that the licensed premises were diligently supervised during his absence, as well as while he was present. Cocaine and cannabis were possessed and sold on the premises as well as in an area directly adjacent to the premises. Their use was open, persistent, and recurring. Contacts and discussions about sales and deliveries of several other illegal drugs also occurred inside the lounge. There were open discussions inside the lounge in normal tone of voice about the purchase and sale of these drugs. Several different employees of the lounge actively arranged drug sales.
The fact that the Respondent was absent from the premises a good bit of the operating hours does not relieve him of the responsibility to supervise the activities occurring on the licensed premises. Although there was evidence that Respondent took some steps to properly maintain Fandango's, he did not do enough. He trusted a manager who allowed things to occur which were significant enough to raise Respondent's suspicions about illegal drug activity in his bar. He also allowed the manager to talk him into rehiring an employee whom Respondent previously had fired for suspected involvement with illegal drugs.
It must be concluded that Respondent was somewhat negligent in failing to take stricter control over what was happening in Fandango's. His negligence, while not gross negligence, was enough to allow his employees to turn Fandango's into a veritable haven for persons to approach patrons and strike illegal drug deals on a frequent and regular basis.
The offers to sell illegal drugs and the discussions leading to the ultimate transfers of illegal drugs are analogous to the solicitations and offers to engage in sexual intercourse in Pauline v. Lee, supra. There, the Court stated:
The persistence and practiced manner with which the solicitations described by the state's witnesses were made is sufficient to permit a factual inference leading to the conclusion that such violations of law
were either fostered, condoned or negligently
overlooked by the licensee, notwithstanding his absence from the premises on the dates in question. Pauline v. Lee, supra, at 364.
Applying that same logic to the instant case, the Respondent should be found guilty of the violations referred to above. These constitute a violation of Florida Statute 561.29(1)(a). By these violations, the Respondent has also violated Section 561.29(1)(c) by maintaining a nuisance on the licensed premises.
Regarding the 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 1967). Here, Respondent is guilty of simple negligence, not intentional wrongdoing. He was not aware of the extent of illicit drug violations taking place on his premises and was never advised prior to August 1, 1984, by law enforcement authorities that they suspected that such activities were occurring on his licensed premises. His failure to diligently supervise operations during the evening hours was due in part to his own choice of where to spend his working hours and splitting his time between more than one bar. He used some diligence, but not enough. Only one minor prior disciplinary infraction has been shown.
On the other hand, the penalty should be severe enough to impress upon Respondent the importance of adequately supervising his establishments and the seriousness of the consequences of not doing so.
Accordingly, it is concluded that a six (6) month suspension of Respondent's alcoholic beverage license and $1000 fine is warranted and appropriate.
Based on the Foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That a Final Order be entered finding the Respondent guilty of violations of Florida Statutes 561.29(1)(a) and 561.29 (1)(c), that respondent be fined
$1,000.00 and that his beverage license be suspended for a period of six (6) months or until payment in full of the $1,000.00 fine, whichever last occurs.
RECOMMENDED this 5 day of September, 1984, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Division of Administrative Hearings Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301 904/488-9575
FILED with the Clerk of the Division of Administrative Hearings this 5 day of September, 1984.
ENDNOTE
1/ After having been given an opportunity to submit proposed findings of fact after the final hearing, both parties declined to do so.
COPIES FURNISHED:
William A. Hatch, Esq.
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Alan C. Jensen, Esq.
220 East Forsyth Street Jacksonville, Florida 32202
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
| Issue Date | Proceedings |
|---|---|
| Sep. 05, 1984 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 05, 1984 | Recommended Order | Employees and patrons arranged frequent drug deals on premises. Respondent was not there and was negligent in failing to supervise. Fine and suspend. |
