STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 85-2608

) BARNELL and LOUISE EVANS, ) t/a FOXY'S DEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above-styled case on August 6, 1985, at Tampa, Florida, following the emergency suspension of Respondent's 2-COP beverage license on July 31, 1985

APPEARANCES

For Petitioner: Harry F. X. Purnell, Esq.

General Counsel Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Barnell and Louise Evans, pro se

635 Fairmount Street

Clearwater, Florida 32515

By Notice to Show Cause filed July 31, 1985, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, seeks to revoke or suspend beverage license No. 01451, Series 2-COP issued to Barnell and Louise Evans to operate a tavern at premises located at 1313 North Greenwood Avenue, Clearwater, Florida. As grounds therefor it

is alleged that on divers occasions between February 8, 1985, and July 29, 1985, Respondents maintained a public nuisance at the licensed premises by reason of allowing the keeping, selling, and using of controlled substances on the licensed premises, by its employees violating the controlled substances laws, and by allowing these controlled substances laws to be violated on the premises .

At the hearing Petitioner called three witnesses, Respondent called two witnesses, including one of the Respondents, and seven exhibits were admitted into evidence. The document initially marked Exhibit 2 was thereafter included as part of Exhibit 1. As the result there is no Exhibit 2, and the last exhibit is marked Exhibit 8.

Proposed findings submitted by Petitioner, to the extent they are incorporated herein, are adopted otherwise, they are rejected as not supported by the evidence, mere recitation of the testimony presented, redundant, or unnecessary to the conclusions reached. Inasmuch as no evidence was presented to refute the testimony of Agent McQueen regarding events he observed and participated in during his undercover surveillance of Foxy's Den, a general finding, in lieu of specific findings, is submitted.

FINDINGS OF FACT

1. At all times material hereto Barnell and Louise Evans held beverage license No. 62-01451-2-COP for premises located at 1313 North Greenwood Avenue, Clearwater, Florida. They have held this beverage license since 1980.

   
   

2. Following receipt of complaints regarding the sale and use of controlled substances, principally marijuana and cocaine, on the licensed premises, an undercover investigation of Foxy's Den was initiated.

   
   

3. Keith B. Hamilton, Department of Law Enforcement (DLE) Investigator, visited Foxy's Den the evening of February 28, 1985, observed patrons smoking marijuana, purchased a $5.00 packet from a patron in the lounge of what was later tested and found to be marijuana, purchased paper to roll marijuana cigarettes from the barmaid after holding up the packet he had just purchased, and observed other transactions in what appeared to be the sale and use of marijuana on the licensed premises.

4. Ira L. McQueen, another DLE Investigator, visited the licensed premises during the evening hours of March 21, 26, and 28 April 9, 10, 16, 18, 24, and 29 May 6, 9, 15, 21, and 22: June 20, 25, and 26: July 1, 8, 18, 23, and 29, 1985. During each of these visits he observed one or more of the following: Patrons smoking marijuana in plain view in the bar area patrons selling marijuana and cocaine to other patrons, including McQueen, in the bar area without much attempt at secrecy: bartenders and barmaids discussing the purchase of controlled substances with patrons and acting as intermediaries in those purchases packets of marijuana and money in exchange therefor passing between patrons in plain view of the bartender patrons obtaining change from the bartender, for example, a $20.00 bill, to purchase a nickel ($5.00) or dime ($10.00) packet of marijuana and McQueen being asked by the bartender if he, McQueen, was interested in buying marijuana or cocaine, and thereafter the bartender participating in the purchase of cocaine or marijuana by contributing money to the purchase and contacting the vendors.

   
   

5. During these visits to the licensed premises by McQueen, he observed the licensee, Barnell Evans, on the premises only twice, but on each of these occasions McQueen observed the illegal use or sale of controlled substances on the premises which could also have been observed by Evans.

   
   

6. Louise Evans has a full-time job at a local hospital and visits the licensed premises only for the purpose of taking the books and records home where she prepares the payroll, pays bills, and keeps the books for the business.

   
   

7. Barnell Evans' principal occupation is construction.

   He is a stucco subcontractor and has maintained this business in Clearwater for a number of years. He has a good reputation in the building industry for honesty and integrity. Operation of Foxy's Den is a part-time occupation of Evans.

   
   

8. Respondents had been told by a friend that controlled substances were being sold in the vicinity of the premises. One bartender and a barmaid were fired by Respondents for involvement with drugs on the premises after being warned that implication in drugs on the licensed premises would not be tolerated by the owners. One witness described Barnell Evans as naive regarding controlled substances. His appearance during these proceedings supports the conclusion that he is more naive regarding how to stop the use or sale of controlled substances than indifferent to such use or sale.

   
   

9. The bartender on duty most of the evenings Foxy's Den was visited by McQueen, and who was involved in McQueen's purchases, is June Little, the nephew of Barnell Evans, who had hired Little because he was out of work, living with his mother, and "needed a job."

   
   

10. Respondents have negotiated an agreement, Exhibit 4, with Curtis McCoy Security Agency for the latter to provide an unarmed uniform security guard on the licensed premises from 4:00 p.m. until midnight daily to detect and deter violations of the laws regarding sale and/or use of controlled substances on the licensed premises.

    
    

    CONCLUSIONS OF LAW

    
    

    The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings.

    
    

    Section 561.29, Florida Statutes, provides that the Division of Alcoholic Beverages and Tobacco may revoke or suspend the license or impose an administrative fine upon the licensee upon a finding of:

    
    

    1. Violation by the licensee or its agent, officers, servants or employees, on the licensed premises . . . of any of the laws of this state . . . 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. . . .

* * *

(c) Maintaining a nuisance on the licensed premises.

The evidence here submitted is clear and convincing that the employees of the licensees permitted others on the licensed premises to violate the controlled substance laws of the state, that these employees also violated these laws relating to controlled substances, and that the widespread use and sale of controlled substances on the premises constitute a public nuisance. Whether the licensees actually observed a violation of the narcotics laws on the premises and did nothing to prevent such conduct is immaterial in view of the licensees' admissions

that they were aware of these violations occurring on the licensed premises and failed to take appropriate action to correct the problem.

It is noted that this investigation continued for more than four months prior to the emergency suspension of the license.

Sufficient evidence was accumulated after five weeks to warrant filing a notice to show cause against the licensees. Had that been done, it is likely that appropriate action would have been taken by the licensees to correct the situation and the emergency suspension would not have been required. It is noted, however, that the investigation was conducted by the Department of Law Enforcement and not the Division of Alcoholic Beverages and Tobacco. Accordingly, DABT may not have received the information until the DLE investigation had continued for four months.

This is the first offense against these licensees and their appearance at the hearing clearly indicates they are interested in operating a law-abiding establishment but did not know how to handle the situation with which they were confronted.

From the foregoing it is concluded that Barnell and Louise Evans, t/a Foxy's Den are guilty of violating Section 561.29(1)(a) and (c), Florida Statutes, as alleged. It is

RECOMMENDED that the 2-COP license of Barnell and Louise Evans, t/a Foxy's Den be suspended for a period of sixty (60) days and thereafter reactivated only upon the licensees taking positive steps to stop violations of the controlled substances law on the licensed premises, such as employing security guards.

ENTERED this 29th day of August, 1985, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings

this 29th day of August, 1985.

COPIES FURNISHED:

Harold F. X. Purnell, Esq. General Counsel

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

Burnell and Louise Evans 635 Fairmount Street

Clearwater, Florida 32515

Howard M. Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

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

Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 85-002608

Orders for Case No: 85-002608