Judges: J. LAWRENCE JOHNSTON
Agency: Department of Business and Professional Regulation
Latest Update: May 28, 1986
Summary: Licensee played patron in game of pool for money and was involved in illegal gambling on sport contest. There was a single patron drug violation; however there was no culpable negligence.
85-3914.PDFSTATE OF FLORIDA
DIVISION OF ADMINSTRATIVE HEARINGS
DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
)
Petitioner, )
)
vs. ) Case No. 85-3914
) STEVE MARTIN, d/b/a THE HUSTLER ) BAR, )
)
Respondent. )
)
RECOMMENDED ORDER
For Petitioner: Louisa E. Hargrett, Esquire
Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301-1927
For Respondent: G. Craig Soria, Esquire
766 Hudson Avenue, Suite B Sarasota, Florida 33577
A final hearing was held in this case in Sarasota on March 25, 1985. The issue was to be whether the charges against Respondent, Steve Martin, d/b/a The Hustler Bar (Respondent), contained in the Notice To Show Cause filed by Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), were true. The Division had charged multiple violations of Florida's drug and gambling laws on the licensed premises by patrons and employees of Respondent for which Respondent allegedly is responsible under Section 561.29(1)(a), Florida Statutes (1985). The Notice To Show Cause also alleges that Respondent maintained the licensed premises as a place where controlled substances were illegally kept, sold, or used in violation of Sections 823.10 and 561.29(1)(c), Florida Statutes (1985). The Notice To Show Cause also alleges that Respondent maintained the licensed premises as a place where unlawful bets on the result of trials or contests of skill
are made, in violation of Sections 849.01 and 561.29(1)(a), Florida Statutes (1985).
However, at the final hearing, the Division agreed that several charges set out in the Notice To Show Cause should be it stricken. As a result, paragraphs l.a), b), d), e), f), h), i), j), and k) of the Notice To Show Cause remained, all charging illegal drug violations by a patron of The Hustler Bar named Greg Sullivan. The reference in paragraph 2 of the Notice To Show Cause to illegal gambling on a football pool also was stricken.
EVIDENTIARY MATTERS
Neither of the parties ordered the preparation of a transcript of the final hearing.
Of Petitioner's Exhibits 1-10 for identification, Petitioner's 5 and 7 were withdrawn. The remaining Petitioner's Exhibits are in evidence.
Respondent objected to the admissibility of Petitioner's Exhibits 2, 4, 6 and 8 on grounds of lack of authenticity and of hearsay. All of those exhibits are copies of Florida Department of Law Enforcement laboratory reports.
As to authenticity, no witness identified or authenticated Petitioner's Exhibits 2, 4, 6 and 8. However, Petitioner's Exhibits 2, 4, and 6 are certified copies. In any event, all are admissible, subject to the hearsay objection, under Section 120.58(1)(a), Florida Statutes (1985) ("all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida.")
As to the hearsay objection, Section 120.58(1)(a) provides in pertinent part: "Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." In a civil action, the laboratory reports would be admissible under Section 90.803(8), Florida Statutes (1985), as an exception to the hearsay rule. In addition, Petitioner's Exhibits 2 and 8 reflect analyses of the substance which Deputy Vanderweert, who has had training and experience in the identification of marijuana, identified as marijuana. Testimony of trained and
experienced law enforcement officers that a substance is marijuana is sufficient proof without scientific analysis. A. A. v. State, 461 So.2d 165 (Fla. 3rd DCA 1984). Since Vanderweert identified the substances as marijuana, the laboratory reports also would be admissible as corroborative of his direct, non-hearsay testimony and would be admissible under Section 120.58(1)(a).
FINDINGS OF FACT
Respondent, Steve Martin, d/b/a The Hustler Bar, held alcoholic beverage license number 68-929, series 2-COP, for licensed premises located at 5748 Swift Road, Sarasota, Florida, at all times relevant to the charges contained in the Notice To Show Cause and at the time of the final hearing.
On November 10, 1984, Respondent received an official notice from the Division that charges would be filed against him for violations of Chapter 893, Florida Statutes.
On January 11, 1985, Deputy Sheriff Bernie Vanderweert entered the licensed premises of The Hustler Bar. He observed patrons engaged in playing pool for money in the presence of the bartender Jim Sealmayer. Deputy Vanderweert played pool with bartender Sealmayer for $1.00 to $2.00 a game.
On January 17, 1985, Deputy Venderweert again observed patrons playing pool for money inside the licensed premises of The Hustler Bar. The pool table was in view of the bar, where bartender Dory Korowold was on duty. Deputy Vanderweert played dice at the bar with bartender Dory for drinks.
On January 18, 1985, Deputy Vanderweert played the game of pool with various patrons for money. He additiogally gambled with bartender Jim Sealmayer on the pool table.
On January 24, 1985, Deputy Vanderweert observed patrons playing pool for money inside The Hustler Bar and himself gambled on the pool table with patron Greg Sullivan.
On January 29, 1985, Deputy Vanderweert gambled on the pool table with other patrons inside the licensed premises of The Hustler Bar while bartender Dory was on duty.
On January 31, 1985, Beverage Investigator James Woodrow visited the licensed premises of The Hustler Bar. He overheard licensee Steve Martin discuss wagering on games of
pool with a patron named Leo. Martin and Leo agreed to play pool for $25.00 a game. Investigator Woodrow observed Martin and Leo playing pool, but did not actually see an exchange of money.
On February 5, 1985, Deputy Vanderweert observed patrons gambling on games of pool inside the licensed premises of The Hustler Bar and himself wagered on a game of pool with patron Greg Sullivan. Dory Korswald was on duty behind the bar during this activity. Deputy Vanderweert observed the bartender Dory smoke a marijuana cigarette inside the premises with several patrons. Vanderweert approached Greg Sullivan and asked if he had a marijuana cigarette. When Greg responded that he did, Vanderweert purchased a marijuana cigarette from him while seated at the bar in the vicinity of bartender Dory and other patrons.
On February 7, 1985, Deputy Vanderweert gambled on games of pool with patron Sullivan for $1.00 to $5.00 a game while on the licensed premises of The Hustler Bar. Deputy Vanderweert overheard licensee Steve Martin attempting to induce a patron to play the game of pool with him for $1,000.00 per game. When the patron would not play for that amount of money, Martin and the patron played games of pool for $5.00 to $10.00 a game. Vanderweert purchased marijuana from patron Greg Sullivan while they were seated at the bar. Respondent was present in the bar at the time of the transaction.
On February 14, 1985, Deputy Vanderweert played games of pool with patron Sullivan for $5.00 to $10.00 a game. Respondent Steve Martin was present during the gambling and was aware that gambling was taking place. Investigator Woodrow observed Sullivan produce a package of marijuana while he was standing at the bar. Sullivan asked the bartender Maggie and the officers if they had rolling papers but received negative replies.
On February 19, 1985, Deputy Vanderweert observed Greg Sullivan obtain cigarette rolling papers from bartender Dory Korswald and smoke a marijuana cigarette with her while inside the licensed premises of The Hustler Bar. While Vanderweert and Sullivan were seated at the bar in the presence of bartender Dory, Vanderweert purchased a plastic baggie of marijuana and a plastic baggie of cocaine from Sullivan.
On February 21, 1985, Investigator Woodrow was approached by Sullivan inside the licensed premises of The
Hustler Bar and asked if he would like to buy cocaine. Sullivan delivered a plastic package of cocaine to Woodrow while they were seated at the bar. Respondent Martin came into the bar during the negotiations and was seated three seats away at the time of the transaction and bartender Dory Korswald was on duty behind the the bar.
On February 26, 1985, Deputy Vanderweert played games of pool with patron Greg Sullivan for money. While Vanderweert was seated at the bar, he purchased a plastic package of suspected cocaine from patron Sullivan while bartender Dory Korswald was on duty behind the bar. But the Division never proved that the substance was cocaine.
On February 28, 1985, Deputy Vanderweert engaged in playing pool for money on the licensed premises of The Hustler Bar. Vanderweert observed bartender Dory Korowald smoke a marijuana cigarette with patrons inside the premises. Investigator Woodrow observed Greg Sullivan produce a baggie of marijuana and roll a marijuana cigarette while he was seated at the bar. After Sullivan finished rolling his cigarette, Vanderweert purchased the remainder of the baggie of marijuana from him. Woodrow purchased a plastic package of cocaine from Sullivan while they were seated at the bar in the presence of bartender Dory Korawald.
On March 5, 1985, Investigator Woodrow purchased from patron Greg Sullivan, inside the licensed premises of The suspected LSD. The transaction took place at the bar. However, the Division could not prove that the substance was LSD.
On March 7, 1985, Deputy Vanderweert purchased from patron Sullivan, inside the licensed premises, what was described to him to be two hits of LSD. Again, the Division could not prove that the substance was LSD.
On March 11, 1985, Investigator Woodrow purchased from patron Sullivan what was described to him to be two hits of LSD inside the licensed premises of The Hustler Bar. Respondent Martin was seated at the bar during the transaction. Again, the Division could not prove that the substance was LSD.
Respondent Martin works at the licensed premises of The Hustler Bar between 11:00 A.M. and 3:00 P.M. every day, but is seldom there at night. He has never seen or possessed illegal drugs inside the bar. He is aware that patrons gamble on the pool tables and has done so himself. He stopped all
gambling on the tables after charges were brought by the Division. Respondent cannot afford a manager and has only two full time employees, with one additional fill in. He does not require his employees to fill out an employment application and cannot remember if he checked his employees' prior employment records. He has no signs posted concerning drugs but does have posted a letter from the Division of Alcoholic Beverages and Tobacco. Respondent was told by employees and customers that Greg Sullivan was involved in drug transactions and barred Sullivan from the premises.
No evidence was presented as to what, if any, changes were made in Respondent's management of the premises after he received notice in November 1984 that drug transactions were alleged to have occurred on the premises.
CONCLUSIONS OF LAW
Section 561.29, Florida Statutes (1985) provides in pertinent part:
The division is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when it is determined or found by the division upon sufficient cause appearing of:
Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, or any of the laws of this state or of the United States, or violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages, or engaging in or permitting disorderly conduct on the licensed premises, or permitting another on the licensed premises to violate any of the laws of this state or of the United States; except that whether or not the licensee or his or its agency, officers, servants, or employees have been convicted in any criminal court of any violation as set forth in this paragraph shall not be considered in proceedings before the division for
suspension or revocation of a license except as permitted by chapter 92 or the rules of evidence.
* * *
(c) Maintaining a nuisance on the licensed premises.
* * *
(3) The division may impose a civil penalty against a licensee for any violation mentioned in the Beverage Law, or any rule issued pursuant thereto, not to exceed
$1,000 for violations arising out of a single transaction. If the licensee fails to pay the civil penalty, his license shall be suspended for such period of time as the division may specify. The funds so collected as civil penalties shall be deposited in the state General Revenue Fund.
* * *
The Division agreed at final hearing that the charges in Count 2.b), subpart 3 (regarding gambling on a football pool), and 2.c) should be stricken from the Notice To Show Cause. The Division proved the other gambling violations alleged in Count 2 of the Notice To Show Cause. Count 2.f) alleged that Respondent Steve Martin gambled on the pool table with a patron known as Leo.
Investigator Woodrow heard an agreement between Martin and Leo to play pool for $25 a game but did not actually observe an exchange of money. Section 849.14, Florida Statutes (1985), provides that "whoever stakes, bets or wagers any money or other thing of value upon the result of any trial or cor.tcst of skill, speed or power or endurance of man. . . shall be guilty of a misdemeanor. . . ." An agreement between two persons to risk money on a contest or chance of any kind constitutes a violation of this section. See Bellamy v. State, 347 So.2d 419 (Fla. 1977) Creash v. State, 179 So. 149 (Fla. 1938); State v. Tate, 420 So.2d 116 (Fla. 2nd DCA 1982). Since Martin and Leo entered into an agreement to wager money on games of pool, Count 2.f) has been established.
The evidence establishes that Respondent had knowledge of these gambling violations or fostered and condoned them. Respondent therefore is culpably responsible for them. See Lash, Inc. v. Department of Business Regulation 411 So.2d 276 (Fla. 3rd DCA 1983) Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962).
Respondent also is guilty as charged in Count 4 of the Notice To Show Cause with maintaining the licensed premises as a place where unlawful bets on results of trials or contests of skill are made in violation of Sections 849.01 and 561.29(1)(a), Florida Statutes (1985).
As to the alleged drug violations, the Division agreed at the final hearing that the charges alleged in Counts l.c), g) and 1) through p) should be stricken. The remaining charges -- Counts l.a), b), d) through f) and h) through k) -- all allege violations by only a single patron named Greg Sullivan selling controlled substances to one of two law enforcement officers. The evidence proved that the illegal drug sales took place.
Although the drug violations by Greg Sullivan were proved, Respondent is not responsible for them unless he actively or constructively permitted Sullivan, who is only a patron and not an employee, to conduct illegal drug activities on the premises. Jones v. Department of Business Regulation,
448 So.2d 1101 (Fla. 1st DCA 1984). The Division concedes that Respondent Steve Martin never saw or possessed illegal drugs inside the premises, as found in the Findings Of Fact. When told by employees and customers that Sullivan was involved in drug transactions, he barred Sullivan from the premises. The Division did not prove that Martin permitted Sullivan to violate the drug laws on the premises and therefore did not prove that Respondent violated Section 561.29(1)(a), Florida Statutes (1985), as a result of Sullivan's drug violations.
Respondent is, however, culpably responsible for maintaining a nuisance on his licensed premises in violation of Section 823.10 and 561.29(1)(c), Florida Statutes (1985). Section 823.10, Florida Statutes (1985), deems to be a public nuisance any store or place which is visited by persons for the purpose of unlawfully using any substance controlled under Chapter 893 or which is used for the illegal keeping, selling or delivering of the same. Under Section 823.01, Florida Statutes (1985), a public nuisance is a misdemeanor.
In addition to the illegal drug violations by Greg Sullivan specifically charged in the Notice To Show Cause, there was evidence under the nuisance charge that Martin's bartenders participated in marijuana violations. The evidence also proved that Respondent's bartenders had knowledge of, fostered and condoned drug violations on the premises. Although Respondent himself did not have knowledge and did not foster or condone drug violations on the premises, he did not exercise due diligence in an attempt to prevent drug violations on the premises. Some of the violations took place in Respondent's presence under circumstances in which he could have detected and prevented the violations if he had been diligently looking for them. Respondent almost exclusively relied upon his bartenders during the evening hours when most of the drug violations took place. He rarely if ever supervised the premises during the evening hours. He has no method of screening applicants for bartender positions, checking background or checking prior employment. He has no prominent signs posted prohibiting drugs on the premises. (He has only posted a letter in ordinary type from the Division concerning drug violations.)
The evidence as a whole proves Respondent's negligence and lack of due diligence in seeking to prevent drug violations on the premises especially since he had been warned in November, 1984, that drug violations had been alleged to have occurred on the premises. For these reasons, Respondent Steve Martin is culpably responsible for maintaining a nuisance on the licensed premises.
RECOMMENDATION
Based upon the foregoing Findings Of Fact and Conclusions Of Law it is RECOMMENDED that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking Alcoholic Beverage License Number 68-929, Series 2-COP, held by Respondent, Steve Martin, d/b/a The Hustler Bar.
RECOMMENDED this 28th day of May, 1986, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Division of Administrative Hearings 2009 Apalachee Parkway
Tallahassee, Florida 32399
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1986.
COPIES FURNISHED:
Louisa E. Hargrett, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301-1927
Craig Soria, Esquire 766 Hudson Avenue
Suite B
Sarasota, Florida 33577
Lt. Tom Ewing
2665 Cleveland Avenue
Ft. Myers, Florida 33482
James Kearney, Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301-1927
Howard M. Rasmussen, Director Division of Alcoholic
Beverages and Tobacco 725 Sough Bronough Street
Tallahassee, Florida 32301-1927
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 85-3914
The following are specific rulings on the parties' proposed findings of fact as required by Section 120.59(2), Florida Statutes (1985).
The following proposed findings of fact submitted by Petitioner are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar
format to the extent necessary: 1-5, 8, 9, 10, 12, 13, 15, and
19.
Petitioner's proposed finding of fact 6 would have been included in paragraph 1 above except that the second sentence was not proved.
Petitioner's proposed finding of fact 7 would have been included in paragraph 1 above except that the evidence was that other patrons, not Sullivan, were gambling with Vanderweert.
Petitioner's proposed finding of fact 11 would have been included in paragraph 1 above except that it is in part subordinate.
Petitioner's proposed findings of fact 14, 16, 17 and
18 would have been included verbatim in the Findings Of Fact except that the evidence never proved the identity of the alleged substances.
Respondent did not submit any proposed findings of fact.
Docket for Case No: 85-003914
Orders for Case No: 85-003914
| Issue Date |
Document |
Summary |
|
May 28, 1986 |
Recommended Order
|
Licensee played patron in game of pool for money and was involved in illegal gambling on sport contest. There was a single patron drug violation; however there was no culpable negligence.
|
