STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )
)
Petitioner, )
vs. ) CASE NO. 84-4142
)
JOHN TIMMONS, JR., d/b/a )
HAROLD'S GROCERY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, duly designated Hearing Officer of the Division of Administrative Hearings, on October 31, 1985, in Miami, Florida.
APPEARANCES
For Petitioner: Thomas A. Klein, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927
For Respondent: Charles G. White, Esquire
14 S.W. Second Avenue Miami, Florida 33130
STATEMENT OF THE CASE
This case arose as the result of a ten (10) count Notice to Show Cause issued by the Petitioner against the Respondent, John Timmons, Jr., d/b/a Harold's Grocery. In response to the Notice to Show Cause the Respondent requested a formal administrative hearing on September 20, 1984.
The Notice to Show Cause and the request for hearing were filed with the Division of Administrative Hearings on November 26, 1984. The request for hearing was assigned case number 84-4142 and was assigned to Michael M. Parrish. The case was subsequently transferred to the undersigned.
On October 31, 1985, the parties executed a Pre-Hearing Stipulation in which the parties admitted certain facts, agreed to certain legal issues and agreed to the admission of certain exhibits. Facts which were admitted in the Pre-Hearing Stipulation have been adopted as Findings of Fact and have been identified as "Stipulated Facts."
At the final hearing, the Petitioner presented the testimony of Sergeant Ed Howett, Detective Preston Lucas, Detective Ricky Smith, Sergeant Louis Battle and Beverage Investigator Lou Terminello.
The Petitioner offered Petitioner's Exhibits 1-34. Petitioner's Exhibits 1, 3, 6, (except paragraphs 1 and 2), 7-23, 27, 30, 33 and 34 were accepted into evidence. The following exhibits were conditionally admitted into evidence, based upon the Petitioner's proffer: Petitioner's Exhibits 6 (paragraphs 1 and 2), 12, 13, 24-26, 28, 29, 31 and 32. Petitioner's Exhibits 2, 4, 5 and 6 (paragraphs 1 and 2) were determined to be hearsay.
The Respondent testified and presented-the testimony of Cary Lou Harris, Caroline Tice and Henry Timmons. The Respondent offered Respondent's Exhibits 1-5A. All were accepted into evidence.
Subsequent to the conclusion of the final hearing, the Respondent filed a Motion to Review all Objections to the Admission of Evidence at Final Hearing. That Motion is hereby denied.
The parties filed proposed findings of fact pursuant to Section 120.57(1)(b)4, Florida Statutes (1985). In the Respondent's Written Final Argument with Proposed Findings of Fact and Conclusions of Law, the Respondent requested an opportunity to reply to the Petitioner's proposed findings of fact and conclusions of law. The Petitioner objected to this request by telephone on February 13, 1986. The Respondent`s request is hereby denied.
A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order. Additionally, attached to this Recommended Order is an Appendix which indicates where proposed findings of fact which have been accepted have been made in this Recommended Order and why proposed findings of fact which have not been accepted have been rejected. The Appendix is hereby incorporated as a part of the Findings of Fact portion of this Recommended Order.
ISSUE
Whether the Respondent's beverage license should be revoked or suspended?
FINDINGS OF FACT
The Petitioner is the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. (Stipulated Fact).
The Respondent is John Timmons, Jr., d/b/a Harold's Grocery. (Stipulated Fact). The Respondent, at all times relevant to this proceeding, operated a grocery store where beer and wine was sold under beverage license number 23-1197, Series 2-APS. (Stipulated Fact).
The Respondent's licensed premises is located at 17347 Homestead Avenue, Miami, Dade County, Florida. (Stipulated Fact).
On September 21, 1962, the Respondent applied for a transfer of the subject beverage license to its current location. Included with the transfer application was a "Sketch of Licensed Premises." In pertinent part, the licensed premises was identified as follows:
Based upon the Sketch of the Licensed Premises submitted by the Respondent to the Petitioner, the licensed premises consisted of only a portion of the building located in the northern part of the building. The southern portion of the building consisted of a pool hall which was not identified as a
part of the licensed premises. The Respondent owned the entire building. The pool hall is identified above by the dotted lines. The dotted lines were not a part of the Sketch of the Licensed Premises.
The Respondent agreed as an incidence of filing the transfer application that any alterations or additions to the licensed premises could be inspected in the same manner as the portion of the licensed premises identified- on the Sketch of the Licensed Premises.
The Respondent subsequently made substantial alterations to the building. The portion of the building formerly used for the pool hall has been incorporated, at least in part, into the portion of the building used by the Respondent in his business. The building and its uses during the period of time at issue in this proceeding consisted of the following:
The portion of the building to the south of the dotted line is the area where the pool "all was located. That area is now used as a storeroom, the Respondent's living quarters and as a part of the store.
The area of the building identified as a part of the store and the storeroom are part of the licensed premises.
The area of the building identified as the Respondent's living quarters is not a part of the licensed premises. This area is used exclusively by the Respondent as his personal residence. Although there is access through a door from the living quarters into the store, the living quarters were not readily accessible by anyone except the Respondent and his personal guests. Employees of the Respondent and patrons did not go into the Respondent's living quarters. No business was conducted in the living quarters.
On or before February 10, 1983, the Metro-Dade Police Department (hereinafter referred to as "MDPD") began an undercover narcotics investigation of the Respondent. On February 10, 1983, MDPD Sergeant Ed Howett searched a confidential informant, gave the informant $10.00 and watched him enter the licensed premises. `When the informant left the licensed premises, the informant was in possession of marijuana and did not have the $10.00 given to him or her. The informant had purchased the marijuana from someone in the Respondent's building. Based upon the sworn affidavits of two MDPD officers as to the reliability of the confidential informant and the events of February 10, 1983, a search warrant for the Respondent's building was issued on February 11, 1983, by the Honorable Judge Alan Kornblum.
On February 15, 1983, MDPD Detective Ricky Smith entered the licensed premises. (Stipulated Fact). Detective Smith was not in uniform. Detective Smith approached Mary Williams, an employee of the Respondent, who was behind the counter on the licensed premises. Detective Smith purchased $2.00 worth of marijuana (2 marijuana cigarettes) from Mary Williams. (Stipulated Fact).
Shortly after Detective Smith's purchase of marijuana, MDPD officers entered the licensed premises to execute the search warrant issued on February 11, 1983. (Stipulated Fact). The search warrant applied to the entire building. At the time of the search Mary Williams, Henry Timmons and the Respondent were present on the licensed premises. (Stipulated Fact). Henry Timmons was behind the counter on the licensed premises. (Stipulated Fact). Henry Timmons is the Respondent's brother and was an employee of the Respondent. Located at the cash register closest to the front door was Mary Williams.
(Stipulated Fact). The Respondent was located on a patio with Cary Lou Harris. The patio was outside the Respondent's living quarters and was accessible from the living quarters.
The Respondent and his brother have similar facial hair. People have confused the Respondent and his brother. Detective Smith and MDPD Detective Preston Lucas, however, were able to distinguish the Respondent from his brother. Detective Smith grew up in the area where the Respondent's store is located and was familiar enough with the Respondent to recognize him.
During the execution of the search warrant, approximately 100 marijuana cigarettes and several separate bags of marijuana were found in plain view on the counter on the licensed premises. (Stipulated Fact). Marijuana was also found in Henry Timmons' back pocket. (Stipulated Fact).
The Respondent was surrounded to the area of the licensed premises where the police officers had entered.
After discovering the marijuana on the counter, the Respondent was asked by the police if that was all of the marijuana. The Respondent replied "yeah, that should be all of it." (Stipulated Fact).
Henry Timmons accompanied police officers to the storeroom at the back of the licensed premises. Although Henry Timmons worked in the storeroom, he lied when he indicated that he was unable to find the light switch. Therefore, the Respondent went to the storeroom and turned the light on. Additional bags of marijuana were found in the storeroom (Stipulated Fact). "Then these additional bags were found the Respondent stated that "well, now you really got it all." (Stipulated Fact).
Based upon the Respondent's statements to police during the execution of the search warrant, it is clear that the Respondent knew that marijuana was located on the licensed premises.
On three separate occasions (March 2, 4 and 28, 1983) MDPD officers entered the licensed premises in an attempt to purchase marijuana from an employee. (Stipulated Fact). On each of the occasions, the employee referred the officers to Larry Wilcox, an individual who was standing outside the licensed premises. (Stipulated Fact). On each of the occasions, the officer purchased marijuana from Larry Wilcox, who retrieved it from a brown paper bag which was stored behind an ice machine in front of the licensed premises. (Stipulated Fact).
On March 2, 1983, Detective Smith entered the licensed premises and asked Mary Williams, who was still employed by the Respondent, if he could buy marijuana. Mary Williams pointed to Larry Wilcox, who was standing outside the licensed premises. The Respondent did not witness this event.
Detective Smith left the licensed premises and approached Larry Wilcox. Wilcox, who was never employed by the Respondent, sold marijuana to Detective Smith. The marijuana was obtained from a bag retrieved by Larry Wilcox from behind the tee machine which "`as located outside of the licensed premises. No evidence was presented as to who owned the ice machine.
On March 4, 1983, Detective Smith and Detective Lucas returned to the licensed premises. They drove up to the curb of the street in front of the licensed premises. The evidence does not show which employee (as stipulated to
by the parties) referred Detective Smith to Wilcox on this occasion. Detective Smith approached Larry `Wilcox who was standing on the sidewalk in front of the licensed premises. Detective Smith again purchased marijuana from Larry Wilcox. The marijuana was retrieved from behind the ice machine.
The Respondent and Henry Timmons were present on the sidewalk in front of the licensed premises during the March 4, 1983 purchase. The Respondent was close enough to witness the transaction.
On March 28, 1983, Detective Smith returned to the licensed premises. He entered the licensed premises and approached the Respondent and Larry Wilcox, who were standing inside the licensed premises. Mary Williams was behind the counter. Detective Smith announced to no one in particular that he wished to buy some marijuana. Again, the evidence does not prove which employee referred the officer to Larry Wilcox. The evidence does prove that the Respondent pointed to Larry Wilcox in response to Detective Smith's question. Larry Wilcox and Detective Smith then left the licensed premises. Detective Smith again purchased marijuana from Larry Wilcox which was obtained from behind the ice machine.
On March 29, 1983, upon sworn affidavit, another search warrant was obtained from the Honorable Judge Alan Kornblum for the Respondent's building (Stipulated Fact). The search warrant was executed on the same day. It applied to the entire building.
During the execution of the search warrant, Larry Wilcox was arrested on the licensed premises. Upon searching Larry Wilcox, marijuana and quaaludes were discovered. (Stipulated Fact). Marijuana and quaaludes were also found in a trash can located outside the front door of the licensed premises. (Stipulated Fact). No evidence was presented as to who owned the trash can.
Two cigar boxes, a metal can, a plastic container and three strainers, all of which contained marijuana residue, were discovered in the living quarters.
The Respondent was not present during the March ?9, 1983 search of the licensed premises or his living quarters.
On April 28, 1984, MDPD Sergeant Louis Battle and Investigator Lou Terminello entered the licensed premises to conduct a license inspection (Stipulated Fact). The Respondent was located behind the counter on the licensed premises when Sergeant Battle and Investigator Terminello entered. A burnt marijuana cigarette was found in plain view on the counter. (Stipulated Fact). During questioning, the Respondent stated that he smoked marijuana in his living quarters and that he no longer sold marijuana. Marijuana residue was found in the living quarters.
During the April 28, 1984, search, a loaded, stolen firearm was found underneath the counter on the licensed premises. It was not proved whether the Respondent was aware of the fact that the firearm was stolen.
Administrative charges were brought against the Respondent based upon alleged violations of the controlled substance statute within the beverage statute. Specifically, the Respondent was charged with possession of marijuana on the premises, conspiracy to sell marijuana, possession of marijuana by his employees on the premises, sale and conspiracy to sell marijuana by one of his employees on the premises and public nuisance.
The Respondent usually worked on the licensed premises until 4:00 p.m. After 4:00 p.m. the Respondent normally retired to his living quarters.
All of the events involved in this proceeding occurred after 4:00 p.m.
Although there was testimony to the contrary, it is concluded that the Respondent did not take steps to prevent the possession or sale and/or delivery of marijuana on the licensed premises. The Respondent made statements which indicated that he was aware that marijuana was kept on the licensed premises, he admitted smoking marijuana in his living quarters, marijuana was found in his living quarters on several occasions and he did not fire his brother or Mary Williams after the execution of the first search warrant on February 1, 1983.
The Respondent was negligent in supervising the operation of his business.
The Respondent entered into a Stipulation on October 7, 1974, whereby he agreed to pay a civil penalty of $250.00 in settlement of charges that the Respondent sold alcoholic beverages for food coupons.
CONCLUSIONS OF LAW
The Division of administrative Hearings has jurisdiction of the parties to, and subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1985).
Section 561.29, Florida Statutes (1985), gives the Respondent the authority to revoke or suspend the license of any person holding a license under the beverage law if, among other things, it is shown:
the licensee or his or its agents, officers, servants or employees violated the laws of Florida on the licensed premises or if another is permitted to violate the laws of Florida on the licensed premises (Section 561.29(11(a), Florida Statutes);
the licensee violated the laws of Florida, any other state or any territory of the United States (Section 561.29(1)(b) , Florida Statutes); or
the licensed premises is maintained as a nuisance (Section 561.29(1)(c), Florida statutes).
The Petitioner has charged that the Respondent's license should be revoked for violations of all three of these prohibited acts.
In general, the Respondent has been charged with the following: possession of marijuana (Counts 1-3); conspiracy (Count 4); possession of marijuana by Henry Timmons, an employee of the Respondent (Count 5); possession and sale and/or delivery of marijuana by Mary Williams, an employee of the Respondent (Counts 6-7); conspiracy by Mary Williams (Counts 8-9); and (6) maintaining a public nuisance (Count 10).
The first three counts against the Respondent charge the Respondent with possession of a controlled substance (marijuana) as defined in Section 893.03, Florida Statutes, in violation of Section 893.13(1)(a), Florida Statutes, within Section 561.29(1)(a) and (b), Florida Statutes.
Marijuana is a controlled substance. Section 893.03, Florida Statutes. It is a violation of Florida law to sell, use, deliver or possess marijuana. Section 893.13, Florida Statutes.
Count 1 alleges that the Respondent was in possession of marijuana on February 15, 1983. This count is based upon the Respondent's constructive possession of marijuana found on the counter located on the licensed premises and in the storeroom on the licensed premises. In order to conclude that the Respondent was in constructive possession of the marijuana found on the licensed premises on February 15, 1983, the following test must be applied:
It is well established that in order to prove possession, the state must prove that the defendant had dominion and control over the contraband and that he had knowledge that illicit drugs were within his presence.
Muwwakil v. State, 435 So.2d 304, 305 (Fla. 3d DCA 1983), rehearing denied, 444
So.2d 417.
In determining whether a person has dominion and control over contraband, it is not necessary to prove actual dominion and control. All that is necessary is that the person have the ability to maintain control over the contraband or reduce it to his or her physical possession. Kickasola v. State, 405 So.2d 200 (Fla. 3d DCA 1981).
Where a person is the exclusive owner of the premises where contraband is found, as in this case, dominion and control over she contraband may be inferred. Brown v. State, 412 So.2d 420 (Fla. 1982), aff'd, 428 So.2d 250 (Fla.); and Mwvwakil v. State, supra.
In this case, the Respondent was the exclusive owner of the premises where the marijuana was found. Although the Respondent was not in the rooms where the marijuana was found, he was a short distance away. Additionally, the persons who were present where the marijuana was found were employees of the Respondent and were therefore subject to his supervision and control. Based upon these facts, it is concluded that the Respondent had the ability to control the marijuana and to reduce it to his physical possession.
It is also concluded that the Respondent had knowledge that illicit drugs were within his presence. This conclusion is based upon the fact that the Respondent admitted to law enforcement officers that they had "gotten it all." These statements to the police indicating knowledge that illicit drugs were on the premises and the Respondent's ability as the exclusive owner of the premises and the employer of the individuals involved, clearly leads to the conclusion that the Respondent was in possession of marijuana on the licensed premises on February 15, 1983.
Based upon the foregoing, the Respondent is guilty of violating Section 561.29(1)(a) and (b), Florida Statutes, as alleged in Count 1.
Count 2 alleges that the Respondent was in possession of marijuana on March 29, 1983. The drugs found on this date included drugs found on Larry Wilcox, drugs found in a trash can outside the licensed premises and drugs found in the Respondent's living quarters. In its proposed recommended order, the Petitioner has not argued that the Respondent is guilty of constructive or actual possession of the drugs found on March 29, 1983, in Larry Wilcox's
possession or in the trash can outside the licensed premises. Nor does the evidence support a conclusion that the Respondent was in possession of those drugs for purposes of determining whether his beverage license should be revoked or suspended.
In order for the Respondent's license to be revoked for possession of the drugs on Larry Wilcox's possession or in the trash can, it must be shown that the Respondent or his agents, officers, servants or employees possessed the drugs on the licensed premises (Section 561.29(a), Florida Statutes) or that the Respondent himself violated the law of Florida, any other state or any territory of the United States on or off the licensed premises (Section 561.29(b), Florida Statutes). Larry Wilcox was not an agent, officer, servant or employee of the Respondent. Nor does the evidence establish that the Respondent had dominion and control over the drugs found on Larry Wilcox or that the Respondent had knowledge that Larry Wilcox was in possession of drugs.
Larry Wilcox, kept his drugs in a paper bag which he kept outside the licensed premises behind an ice machine. No evidence was presented to indicate that Larry Wilcox normally kept drugs on his person or that the Respondent should have known that Larry Wilcox had drugs on his person when he was arrested on March 29, 1983 on the licensed premises. The Respondent is therefore not guilty of possession of the drugs found on Larry Wilcox.
As to the drugs found in the trash can, no evidence was offered from which it can he concluded who owned them. There was also no evidence to prove whether the trash can belonged to the Respondent or that the Respondent had any knowledge that drugs were in the trash can. It cannot therefore be concluded that the Respondent was in possession, actual or constructive, of the drugs found in the trash can.
As to the drugs found in the Respondent's living quarters on March 29, 1983, the parties have focused on whether the Respondent's living quarters constitute part of the licensed premises. This question is relevant because the Respondent has been charged in Count 2 with possession of marijuana in violation of Florida law within Section 561.29(1)(a), Florida Statutes. This Section is specifically limited to violations which occur on the licensed premises.
The "licensed premises" is defined in Section 561.01(11), Florida Statutes (1985), as follows:
"Licensed premises" means not only rooms where alcoholic beverages are stored or sold by the licensee, but also all other rooms in the building which are so closely connected therewith as to admit of free passage from drink parlor to other rooms over which the licensee has some dominion or control and shall also include all of the area embraced within the sketch, appearing on or attached to the application for the license involved and designated as such on said sketch, in addition to that included or designated by general law.
Based upon the facts in this case and the above definition of the licensed premises, it is clear that the portion of the building shown on the Sketch of the Licensed Premises filed by the Respondent in 1962 constitutes part
of the licensed premises. It is also clear that the portion of the building originally used as a pool hall and not included on the Sketch of the Licensed Premises which was later converted into a storeroom and part of the store constitutes part of the licensed premises.
Whether the Respondent's living quarters constitute part of the licensed premises is a more difficult question. The living quarters were not designated as part of the licensed premises on the Sketch of the Licensed Premises filed by the Respondent in 1962. Nor has the Respondent ever designated his living quarters as part of the licensed premises.
The living quarters are accessible from the store by way of a door. Access is also available from a patio located outside of the living quarters. The living quarters are part of the same building in which the licensed premises are located. The Respondent had dominion and control over the living quarters. Despite these facts, it is clear that the living quarters were not used in any way by the Respondent as a part of his business. Nor was access available to employees or patrons of the Respondent's business. There was, therefore, no free passage from the store to the living quarters, as contemplated in the statutory definition of "licensed premises."
The fact that the search warrants executed by law enforcement officers applied to the entire building is not relevant in determining whether the living quarters are a part of the licensed premises. The issuance of those search warrants was not governed by Chapter 561, Florida Statutes, and what constituted the "licensed premises" was not at issue in determining the scope of the search warrants.
Based upon the foregoing, it is concluded that the Respondent's living quarters were clearly not a part of the licensed premises. See Bovton v. State, 64 So.2d 536 (Fla. 1959).
In light of the conclusion that the Respondent's living quarters are not a part of the licensed premises, it is concluded that the Petitioner has not shown that the Respondent's possession of marijuana on March 29, 1983 in his living quarters came within Section 561.29(1)(a), Florida Statutes. This determination does not, however, dispose of Count 2. The Petitioner has also alleged in Count 2 that the Respondent's possession of marijuana on March 29, 1983 came within Section 561.29(1)(b), Florida Statutes. Under this section, it is not necessary that it be shown that a violation occurred on the licensed premises. Section 561.29(1)(b), Florida Statutes, only requires that it be shown that the licensee violated the laws of Florida, any other state or any territory of the United States. See Deen South Plantation Foods, Inc. v. Wynne, 317 So.2d 131 (Fla. 2d DCA 1975).
The evidence clearly shows that the Respondent was in possession of marijuana in his living quarters in violation of Florida law. The Respondent does not dispute this fact. Such a violation is sufficient to revoke or suspend the Respondent's beverage license under Section 561.29(1)(b), Florida Statutes.
Based upon the foregoing, it is concluded that the Respondent is not guilty of a violation within Section 561.29(1)(a), Florida Statutes, as alleged in Count 2. It is, however, concluded that the Respondent is guilty of a violation within Section 561.29(1)(b), Florida Statutes, as alleged in Count 2, to wit, possession of marijuana in his living quarters.
Count 3 alleges that the Respondent was in possession of marijuana on April 28, 1984. On this date, marijuana was found on the counter on the licensed premises and in his living quarters. It is concluded that the Respondent was in possession of the marijuana found on this date. The Respondent was behind the counter when the marijuana was found there. No evidence was offered to prove that anyone else was present in the store at the time. Some of the marijuana was in plain view. The Respondent's possession of the marijuana found on the counter is a violation within Section 561.29(a) and (b), Florida Statutes.
The marijuana found in the Respondent's living quarters was also in the Respondent's possession. The living quarters were under the Respondent's exclusive dominion and control and the Respondent admitted that he smoked marijuana in his living quarters.
In light of the conclusion that the living quarters are not a part of the licensed premises, the Respondent's possession of marijuana in his living quarters on April 28, 1984 is not a violation within Section 561.29(1)(a), Florida Statutes. It is, however, a violation within Section 561.29(1)(b), Florida Statutes.
Based upon the foregoing, it is concluded that the Respondent is guilty of a violation of law within Section 561.29(1)(a), Florida Statutes (possession of marijuana on the licensed premises but not the marijuana found in his living quarters), and a violation within Section 561.29(1)(b), Florida Statutes (possession of marijuana on the licensed premises and in the living quarters), as alleged in Count 3.
Count 4 charges that the Respondent conspired with Larry Wilcox to commit the offense of sale and/or delivery of a controlled substance (marijuana) as defined in Section 893.03, Florida Statutes, in violation of Sections 777.04(3) and 893.13(1)(a), Florida Statutes, within Section 561.29(1)(a) and (b), Florida Statutes. The conspiracy allegedly occurred on March 28, 1983.
On March 28, 1983, Detective Smith entered the licensed premises and approached the Respondent and Larry Wilcox and stated to no one in particular that he wished to buy some marijuana. The Respondent pointed to Larry Wilcox. Larry Wilcox and Detective Smith then left the premises and completed a drug sale outside.
In order to find that the Respondent conspired with Larry Wilcox, it is necessary to find that there was an express or implied agreement or understanding between them with the intention of committing a criminal offense. See Orantes v. State, 452 So.2d 68 (Fla. 1st DCA 1984); and Ashenoff v. State,
391 So.2d 289 (Fla. 3d DCA 1981). Proof of a formal agreement is not necessary. Ashenoff v. State, supra. An agreement may be inferred from circumstantial evidence. See Orantes v. State, supra; and Borders v. State, 312 So.2d 247 (Fla. 3d DCA 1975).
Conspiracy is a separate and distinct crime from the crime which is the object of the conspiracy. Ashenoff v State, supra. Therefore, evidence that a person aided and abetted another in the commission of an offense is insufficient to convict either person of conspiracy. Ashenoff v. State, supra. Mere presence at the scene of a crime is also insufficient to prove conspiracy. Ashenoff v. State, supra.
Based upon the evidence in this case, it is concluded that the Respondent is not guilty of conspiring with Larry Wilcox to sell and/or deliver marijuana on March 28, 1983. At the most, the Respondent may have aided and abetted the sale of marijuana and may have had knowledge of the sale. These facts, however, are insufficient to infer that the Respondent and Larry Wilcox had an agreement to commit a criminal offense.
The Petitioner has argued that the Respondent employed a new modus operandi after the search of February 15, 1983: referring marijuana purchasers to Larry Wilcox. The Petitioner has failed to prove this allegation.
The Petitioner has failed to show that the Respondent conspired with Larry Wilcox as alleged in Count 4.
Counts 5 through 9 charge the Respondent with certain acts of his employees in violation of Sections 777.04(3) and 893.13(1)(a), Florida Statutes, within Section 561.29(1)(a) and (b), Florida Statutes. In particular, the employee acts include possession of marijuana by Henry Timmons on February 15, 1983 (Count 5), sale and/or delivery of marijuana by Mary Williams on February 15, 1983 (Count 6), possession of marijuana by Mary Williams on February 15, 1983 (Count 7), and conspiracy by Mary Williams with Larry Wilcox to sell and/or deliver marijuana on
March 2, 1983 (Count 8) and March 4, 1983 (Count 9).
It is clear that a beverage licensee is not an insurer against all violations of the law which may be committed by or through his employees on his licensed premises. Woodbury v. State Beverage Department, 219 So.2d 69 (Fla. 1st DCA 1969). Instead, a licensee is only held to a reasonable standard of diligence and should be found culpably responsible only as a result of the licensee's own negligence, intentional wrongdoing or lack of diligence. Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962).
It is also clear that the commission of a single offense by a single employee is insufficient to find that a licensee is culpably responsible for that employee's offense. G & B of Jacksonville v. State Department of Business Regulation, 381 So.2d 1074 (Fla. 1st DCA 1979). If, however, violations are committed in a persistent and flagrant manner consisting of more that one isolated incident, the courts have not hesitated to find that the violations were either fostered, condoned or negligently overlooked by the licensee. Lash
v. State Department of Business Regulation, 411 So.2d 276 (Fla. 3d DCA 1982).
A number of violations by employees occurred on February 15, 1983. In particular, Henry Timmons and Mary Williams were found to be in possession of a large amount of marijuana on the licensed premises. A large portion of the marijuana was found in plain view on the counter on the licensed premises. Evidently, no effort was made by these employees to hide the drugs.
Additionally, Mary Williams openly sold marijuana on February 15, 1983. The sale was transacted over the counter on the licensed premises and no effort was made to conceal the sale.
The other violations by an employee which allegedly occurred which the Petitioner has contended the Respondent should be found to be responsible for include an alleged conspiracy of Mary Williams with Larry Wilcox to sell and/or deliver marijuana on March 2, 1983 and March 4,1983. The evidence does not, however, prove that any conspiracy existed between Mary Williams and Larry Wilcox.
On March 2, 1983, Mary Williams merely referred Detective Smith to Larry Wilcox in response to Detective Smith's proposed marijuana purchase. Larry Wilcox, who was outside the licensed premises, then sold marijuana to Detective Smith. This act, which may constitute aiding and abetting, is insufficient to conclude that Mary Williams and Larry Wilcox had an express or implied agreement or understanding between them to sell marijuana.
The evidence also fails to prove that Mary Williams conspired with Larry Wilcox on March 4, 1983. No evidence was presented to prove that Mary Williams was even present on or near the licensed premises or that she had any knowledge of the marijuana sale which took place on that date.
Based upon the foregoing, it is concluded that the Respondent's employees committed offenses only on February 15, 1983. Although only one date was involved, the events of February 15, 1983 do not involve a single offense and a single employee. Three violations involving two employees occurred. Most of these offenses were also carried out in an open and flagrant manner.
The evidence also failed to prove that the Respondent took any steps to prevent his employees from committing offenses on the licensed premises.
As the Respondent has argued, the Respondent left the operation of his business to his employees after 4:00 p.m. The offenses by employees all took place after 4:00 p.m. The Respondent argues that the Respondent should therefore not be held culpably responsible for his employees' offenses. These facts, however, support the conclusion that the Respondent was negligent in supervising his employees. In light of the Respondent's lack of effort to prevent his employees from committing offenses, the open and flagrant manner in which the offenses were committed and the Respondent's knowledge of the presence of marijuana, the Respondent's failure to check his employees after 4:00 p.m. supports a conclusion that the Respondent was negligent.
Even if the employee offenses of February 15, 1983 were insufficient to infer that the Respondent fostered, condoned or negligently overlooked his employees' offenses, the fact that the despondent knew that marijuana was being kept on the licensed premises on February 15, 1983, is sufficient to conclude that the Respondent is culpably responsible for Henry Timmons' and Mary Williams' possession of marijuana and Mary Williams' sale and delivery of marijuana on February 15, 1983.
Based upon the foregoing it is concluded that the Respondent is responsible for the possession of marijuana by Henry Timmons, (Count 5), the sale and delivery of marijuana by Mary Williams (Count 6) and the possession of marijuana by Mary Williams (Count 7). The Respondent is not, however, responsible for any alleged conspiracy by Mary Williams on March 2, 1983 (Count
8) or March 4, 1983 (Count 9).
In the final count (Count 1O), it is alleged that the Respondent unlawfully kept or maintained the licensed premises from February 10, 1983 until at least April 28, 1984 for the illegal keeping, selling or delivering of a controlled substance (marijuana) in violation of Sections 832.10 and 893.13(2)(a)5, Flo%rida Statutes, within Section 561.29(1)(a),(b) and (c), Florida Statutes.
Section 823.10, Florida Statutes, provides that no person shall maintain any place for the illegal keeping, selling or delivering of a
controlled substance. Section 893.13(2)(a)5, Florida Statutes, provides that it is unlawful to keep or maintain any place which is used for keeping or selling a controlled substance.
The facts in this case clearly prove that marijuana was kept on the licensed premises on February 15, 1983 and April 28, 1984. These are the only dates that the evidence proves that marijuana was kept on the licensed premises.
The evidence also shows that marijuana was sold to a confidential informant on February 10, 1983. The evidence failed, however, to prove where in the building (the living quarters or the licensed premises) the sale took place or who sold the marijuana. It cannot, therefore, be concluded that a sale took place for which the Respondent is responsible on the licensed premises.
The other events involving drugs in this case occurred in the living quarters or off the licensed premises. Those events do no prove that the Respondent maintained a nuisance on the licensed premises within Section 561.29(1)(c), Florida Statutes. The fact that marijuana was kept on the licensed premises on February 15, 1983 and April 28, 1984 is insufficient to conclude that the Respondent is guilty of "[m)aintaining a nuisance on the licensed premises." [emphasis added]. Section 561.29(1)(c), Florida Statutes.
Count 10 also alleges that the Respondent violated Section 823.10 and 893.13(2)(a)5, Florida Statutes, within Section 561.29(1)(a), Florida Statutes. In determining whether a violation occurred within Section 561.29(1)(a), Florida Statutes, it must be concluded that the violation occurred on the licensed premises. The conclusions with regard to whether the Respondent maintained a nuisance on the licensed premises within Section 561.29(1)(c), Florida Statutes, also apply to this determination. The Respondent is therefore not guilty of violating Sections 823.10 and 893.13(2)(a)5, Florida Statutes, within Section 561.29(1)(a), Florida Statutes.
Finally, Count 10 alleges that the Respondent violated Sections 823.10 and 893.13(2)(a)5, Florida Statutes, within Section 561.29(1)(b), Florida Statutes. This Section, as previously concluded, is not limited to a determination of whether a violation occurred on the licensed premises. Therefore, it is concluded that all drug transactions which occurred in the Respondent's building should be taken into account in determining whether a violation occurred within Section 561.29(1)(b), Florida Statutes.
The evidence proves that in addition to the marijuana found on the licensed premises on February 15, 1983 and April 28, 1984, marijuana residue was found in the living quarters on March 29, 1983 and April 28, 1984. Marijuana was also sold from the building on February 10, 1983. Based upon these facts it is concluded that the building was maintained or kept for the illegal keeping of a controlled substance in violation of Sections 823.10 and 893.13(2)(a)5, Florida Statutes, within Section 561.29(1)(b), Florida Statutes.
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). In this case, the Respondent is guilty of several violations of Florida drug laws. The Respondent not only failed to adequately supervise his employees, but also was personally involved in those activities. This is the Respondent's second violation of the beverage laws. Revocation is therefore warranted and appropriate.
The Respondent has failed to prove any extenuating circumstances which mitigate the conclusion that his beverage license should be revoked.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That the Respondent be found guilty of a violation (possession of marijuana) within Section 561.29(1)(a) and (b), Florida Statutes, as alleged in Count 1. It is further
RECOMMENDED:
That the Respondent be found guilty of a violation (possession of marijuana) within Section 561.29(1)(b), Florida Statutes, as alleged in Count 2. The Respondent should, however, be found not guilty of a violation within Section 561.29(1)(a), Florida Statutes, as alleged in Count 2 and that portion of Count 2 should be dismissed. It is further
RECOMMENDED:
That the Respondent be found guilty of a violation within Section 561.29(1)(a), Florida Statutes (possession of marijuana on the licensed premises but not the marijuana found in his 1iving quarters), and a violation within Section 561.29(1)(b), Florida Statutes (possession of marijuana on the licensed premises and in the living quarters), as alleged in Count 3. It is further
RECOMMENDED:
That the Respondent be found not guilty of conspiracy as alleged in Count
Count 4 should he dismissed. It is further RECOMMENDED:
That the Respondent be found guilty of a violation (possession of marijuana by an employee) with Section 561.29(1)(a), Florida Statutes, as alleged in Count
It is further RECOMMENDED:
That the Respondent be found guilty of a violation (sale and/or delivery of marijuana by an employee) within Section 561.29(1)(a) , Florida Statutes, as alleged in Count 6. It is further
RECOMMENDED:
That the Respondent be found guilty of a violation (possession of marijuana by an employee) within Section 561.29(1)(a), Florida Statutes, as alleged in Count 7. It is further
RECOMMENDED
That the Respondent be found not guilty of a violation (conspiracy by an employee) within Section 561.29(1)(a) or(b) Florida Statutes, as alleged in Count 8. Count 8 should be dismissed. It is further
RECOMMENDED:
That the Respondent be found not guilty of a violation (conspiracy by an employee) within Section 561.29(1) or Florida Statutes, as alleged in Count 9. Count 9 should be dismissed. It is further
RECOMMENDED:
That the Respondent be found guilty of a violation within Section 561.29(1)(b), Florida Statutes, as alleged in Count 10. The Respondent should, however, be found not guilty of a violation within Section 561.29(1)(a) and (c), Florida Statutes as alleged in Count 10 and those portions of Count 10 should be dismissed. It is further
RECOMMENDED:
That the Respondent's beverage license be revoked.
D0NE and ENTERED this 26th day of February, 1986, in Tallahassee, Florida.
LARRY J. SARTIN
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1986.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-4142
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they were accented. Those proposed findings of fact which have been rejected and the reasons for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ."
Petitioner's Proposed Findings of Fact: Paragraph 1: Accepted in RO 1, 2 and 3.
Paragraph 2: Accepted, with the exception of the next to the last
sentence, in RO 4, 5, and 6. The next to the last sentence is rejected as contrary to the evidence. The evidence showed that there was a patio outside the living quarters which was accessible from the living quarters. See RO 11.
Paragraph 3: Accepted, in part, in RO 9. Why the undercover investigation began is based upon hearsay and is not relevant and is therefore rejected . Who made the sale on February 10, 1983, was not proved by admissible evidence. The proposed finding that Mary Williams made the sale is therefore rejected.
Paragraph 4: The first 4 sentences of this paragraph are accented in RO 10 and 11.
The fifth and sixth sentences are not proposed findings of fact and are rejected. These two sentences are merely statements of issues of fact which have been resolved in the Recommended Order. See RO 4-8.
The last sentence is accepted in RO 11. Paragraph 5: Accepted in RO 13 and 15.
Paragraph 6: The first sentence of this paragraph is accepted in RO 18.
The second sentence is rejected as unsupported by the evidence. Although the Respondent was present and observed the transactions on March 4 and 28, 1983, the evidence does not prove that he was present and observed the transactions on all three occasions.
The third sentence is rejected. The parties stipulated that officers were referred to Larry Wilcox on March 2, 4 and 28, 1983 by an employee. Evidence was presented to support a finding of fact that the Respondent also referred officers to Larry Wilcox on one occasion and a finding of fact to that affect has been made in RO 23. Additionally, no evidence that Larry Wilcox was a "patron" was presented.
The fourth sentence is accepted in RO 18, 20, 21 and 23. The fifth and last sentences are accepted in RO 12.
Paragraph 7: The first and second sentences are accepted in RO 24. The remaining portion of paragraph 7 is accepted in RO 25 and 26.
Paragraph 8: Accepted in RO 28, 29 and 31.
Paragraph 9: Most of this paragraph is rejected. This paragraph summarizes testimony of various witnesses, irrelevant findings of fact, proposed findings of fact not supported by the record or argument. A finding of fact has been made in RO 30, however, that Henry Timmons and Mary Williams continued to be employed.
Respondent`s Proposed Findings of Fact.
Paragraph 1: Generally accepted in RO 2. The racial makeup of the area where the licensed premises is located is rejected as irrelevant.
Paragraph 2: Accepted in RO 3.
Paragraph 3: Accepted in RO 2.
Paragraph 4: Generally accepted in RO 4 and 6. The evidence does not establish who prepared the Sketch of Licensed Premises, however.
Paragraph 5: Accepted in RO 6.
Paragraph 6: Accepted in RO 8.
Paragraph 7: Accepted in RO 8.
Paragraph 8: Accepted in RO 4, 6 and 7.
Paragraph 9: Accepted in RO 10.
Paragraph 10: Accepted in 160 10.
Paragraph 11: Accepted in RO 11.
Paragraph 12: Accepted in RO 11.
Paragraph 13: Accepted in RO 11 and 16.
Paragraph 14: Accepted in RO 16.
Paragraph 15: Accepted in RO 13.
Paragraph 16: Accented in RO 13.
Paragraph 17: Accepted in RO 16.
Paragraph 18: The first 2 sentence are accepted in RO 16. The last sentence is rejected as unsupported by the evidence.
Paragraph 19: The first sentence is rejected. See RO 15, 16, 17 and 30.
The second sentence is also rejected. This sentence is not a proposed finding of fact; it is argument.
Paragraph 20: Accepted in RO 19.
Paragraph 21: Accepted in RO 19.
Paragraph 22: Accepted in RO 20.
Paragraph 23: Accepted in RO 20.
Paragraph 24: Accepted in RO 19.
Paragraph 25: Accepted in RO 20.
Paragraph 26: Accepted in RO 21.
Paragraph 27: The first sentence is rejected. This proposed finding of fact is not supported by the evidence.
The remaining portion of this paragraph is also rejected. The remaining portion of this paragraph is a summary of testimony or argument. This testimony has been considered and a finding of fact has been made that the Respondent was present in" some of the events at issue in this proceeding.
Paragraph 28: Accepted in RO 23.
Paragraph 29: The first sentence is accepted in RO 23.
The remaining portion of this paragraph is rejected. The remaining port ion is argument concerning whether the Respondent was present on March 28, 1983. A finding of fact that the Respondent was present has been made in RO 23.
Paragraph 30: Accepted in RO 23.
Paragraph 31: Accepted in RO 23.
Paragraph 32: Accepted in RO 24.
Paragraph 33: Accepted in RO 25.
Paragraph 34: Accepted in RO 25.
Paragraph 35: This paragraph is rejected. The evidence does not show who owned the drugs found in the trash can located outside of the licensed premises. The second and third sentences are argument and are therefore rejected.
Paragraph 36: Accepted in 160 26.
Paragraph 37: Accepted in RO 27.
Paragraph 38: Accepted, in part, in RO 28. According to the facts contained in the Pre-Hearing Stipulation, Sergeant Battle and Investigator Terminello entered the licensed premises on April 28, 1984 to conduct a license inspection. The proposed finding of fact that they entered the premises to serve a Notice of Action is contrary to the facts as stipulated to by the parties and therefore rejected.
Paragraph 39: The first sentence is accepted in RO 28. The second sentence is rejected as irrelevant.
Paragraph 40: Accepted in RO 28.
Paragraph 41: Accepted in RO 29.
Paragraph 42: Accepted in RO 29.
Paragraph 43: Accepted in RO 28.
Paragraph 44: Accepted in RO 12. Paragraph 45: Rejected as irrelevant.
Paragraph 46: This proposed finding of fact is rejected. The Respondent's personal involvement with marijuana and the number of marijuana sales which were proved to have occurred in the Respondent's presence supports a contrary conclusion.
Paragraph 47: This paragraph is rejected. Again, the Respondent's personal involvement with marijuana and the fact that Larry Wilcox sold marijuana within plain sight of the Respondent supports a contrary conclusion.
Paragraph 48: Accented in RO 32.
Paragraph 49: Accepted in RO 33.
Paragraph 50: This paragraph is rejected. The Respondent had personal knowledge that marijuana was on the licensed premises on February 15, 1983. This fact and others support a conclusion contrary to the proposed finding of fact made in this paragraph.
Paragraph 51: This paragraph is rejected. The evidence supports a finding of fact that the Respondent did not fire Henry Timmons or Mary Williams after the events of February 15, 1983.
Paragraph 52: This paragraph is rejected. The evidence supports a contrary conclusion.
COPIES FURNISHED:
Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927
Charles G. White, Esquire
14 S.W. Second Avenue Miami, Florida 33130
Richard B. Burroughs, Jr., Secretary Department of Business Regulation Johns Building
725 South Bronough Street Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Feb. 26, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 26, 1986 | Recommended Order | Beverage license revoked for possession and sale of marijuana on licensed premises. |
