Lawrence Johnston.
For Petitioner: Thomas A. Klein, Esq.
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Edna P. Smith
An immediate post-suspension final hearing was held in this case in Orlando on December 30, 1985. The issue is whether Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, should revoke, suspend or otherwise discipline the license of Respondent, Edna P. Smith, d/b/a Silver Tip Beer And Wine, License Number 69-465, Series Number 2-COP.
The Notice To Show Cause in this case alleges multiple drug violations on the licensed premises. At final
hearing, Respondent conceded that the violations took place, and the issue now is solely whether Respondent is culpably responsible for those violations and, if so, to what extent her license should be disciplined.
Respondent, Edna P. Smith, d/b/a Silver Tip Beer And Wine, holds Alcoholic Beverage License Number 69-465, Series Number 2-COP, to operate Silver Tip Beer And Wine at 1509 West 13th Street, Sanford, Seminole County, Florida.
Due to her age and bad health, Respondent hired a manager named Joseph Lee Solomon (Joe) to operate the licensed premises and herself withdrew from the operation and supervision of the licensed premises approximately one to one and one-half years ago. Since then, Respondent's only contact with the operation or supervision of the licensed premises was to receive her profits from Joe.
On or about October 22, l985, while he was actively engaged as the manager on the licensed premises, Joe did unlawfully aid, abet, counsel, hire or otherwise procure the sale/or delivery of a controlled substance as defined in Section 893.03, Florida Statutes, to wit: aided a patron, in selling marijuana to a third party, on the licensed premises, in violation of Sections 777.011 and 893.13(1)(a), Florida Statutes.
On or about October 28, 1985, while he was actively engaged as the manager on the licensed premises, Joe did unlawfully aid, abet, counsel, hire or otherwise procure the sale and/or delivery of a controlled substance as defined in Section 893.03, Florida Statutes, to wit: aided a patron, in selling marijuana to a third party, on the licensed premises, in violation of Sections 777.011 and 893.13(1)(a), Florida Statutes.
On or about November 6, 1985, while he was actively engaged as the manager on the licensed premises, Joe did unlawfully aid, abet, counsel, hire or otherwise procure the sale and/or delivery of a controlled substance as defined in Section 893.03, Florida Statutes, to wit: aided a patron, in selling marijuana to a third party on the licensed premises, in violation of Sections 777.011 and 893.13(1)(a) within Section 561.29(1)(a), Florida Statutes.
On or about November 18, 1985, while he was actively engaged as the manager on the licensed premises, Joe did unlawfully possess and sell and/or deliver a controlled substance as defined in Section 893.03, Florida Statutes, to wit: sold and personally delivered marijuana
to a third party, on the licensed premises in violation of Section 893.13(1)(a), Florida Statutes.
On or about November 21, 1985, while he was actively engaged as the manager on the licensed premises, Joe did unlawfully possess and sell and/or deliver a controlled substance as defined in Section 893.03, Florida Statutes, to wit: sold and personally delivered cocaine to a third party, on the licensed premises in violation of Section 893.13(1)(a), Florida Statutes.
On or about November 25, 1985, while he was actively engaged as the manager of the licensed premises, Joe did unlawfully possess and sell and/or deliver a controlled substance as defined in Section 893.03, Florida Statutes, to wit: sold and personally delivered cocaine to a third party, on the licensed premises in violation of Section 893.13(1)(a), Florida Statutes.
On or about December 5, 1985, while he was actively engaged as the manager of the licensed premises, Joe did unlawfully possess and sell and/or deliver a controlled substance as defined in Section 893.03, Florida Statutes, to wit: sold and personally delivered cocaine to a third party, on the licensed premises in violation of Section 893.13(1)(a), Florida Statutes.
On or about December 16, 1985, while he was actively engaged as the manager of the licensed premises, Joe did unlawfully possess and sell and/or deliver a controlled substance as defined in Section 893.03, Florida Statutes, to wit: sold and personally delivered cocaine to a third party, on the licensed premises in violation of Section 893.13(1)(a), Florida Statutes.
The transactions referred to in paragraphs 3. through 10. above occurred in view of all patrons in the licensed premises at the time. In addition, patrons openly smoked marijuana, snorted cocaine and injected drugs hypodermically in front of Joe, the manager, during the time period from approximately October 22, 1985, through December 19, 1985. There was no need to hide these activities from Joe because he knew about them and condoned them.
On December 19, 1985, Joe was arrested and was in possession of cocaine in violation of Section 893.13(1)(a),
Florida Statutes.
It was not proved that Respondent had actual knowledge of the violations described in paragraphs 3. through 10. and 12. above. Nor was it proved that she actually condoned them. But it was proved that Respondent was negligent in supervising her manager, Joe, and the operation of the licensed premises. Her negligence allowed the violations to take place easily and with impunity until her license was suspended.
CONCLUSIONS OF LAW
Section 561.29, Florida Statutes (1983), contains the following relevant provisions:
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, of any of the laws of this state or of the United States, or violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages, or engaging in or permitting disorderly conduct in the licensed premises, or permitting another on the licensed premises to violate any of the laws of this state or of the United States. . . .
Violation by the licensee. of
any laws of this state or any state or territory of the United States.
Maintaining a nuisance on the licensed premises.
* * *
(3) The division may impose a civil penalty against 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.
Section 823.10, Florida Statutes (1983), declares
a place or building where controlled substances are illegally kept, sold, or used, to be a nuisance.
Section 893.13(2)(a)~5), Florida Statutes (19B3), 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 violation of this chapter for the purpose of using these substances, or which is used for keeping or selling them in violation of this chapter.
Marijuana and cocaine are controlled substances. It is a violation of state law to sell, use, deliver, or possess marijuana or cocaine. Section 893.13, Florida Statutes (1983).
Respondent's employee Joe violated Section 893.13, Florida Statutes (1983).
Respondent is held accountable for the violations of Joe if she was culpably responsible by reason of her own negligence, intentional wrong-doing or lack of diligence. Pauline v. Lee, 147 So. 2d 359 (Fla. 2nd DCA 1962). In Pauline v. Lee, the court held:
The persistent and practiced manner with which the solicitations [for prostitution] 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 date in question.
Id. at 364. See also Taylor v. State Beverage Department,
194 So. 2d 321, 325 (Fla. 2nd DCA 1967). The evidence in Pauline v. Lee consisted of five separate solicitations for prostitution by five different employees of the licensee.
In Lash, Inc. v. State Department of Business
Regulation, 411 So. 2d 276 (Fla. 3rd DCA 1983), the operative facts before the court were:
The license revocation stemmed from narcotics violations on appellant's premises. The evidence established that on five occasions over a period of a week, undercover beverage agents purchased controlled substances from two of appellant's employees.
At page 278 of its decision, the court in Lash applied the standard for revocation or suspension of a beverage license to the facts of that case:
Under Section 561.29(1), where the unlawful activity is committed by the Licensee's agent, simple negligence is sufficient for revocation. Admittedly, the courts have refused to uphold revocations when the evidence showed only that on one occasion the licensee's employees violated the laws, and that the licensee otherwise took measures to comply with them. (Citations omitted.) Where, however, the laws are repeatedly and flagrantly violated by the employees, an inference arises leading to the conclusion that such violations are either fostered, condoned or negligently overlooked by the licensee, notwithstanding his absence from the premises when the violations occur. (Citations omitted.) Consequently, if the evidence supports the conclusion that the licensee failed to exercise ordinary care in the maintenance of the licensed premises or the supervision of his employees, he can be found negligent and his license revoked. (Citation omitted.)
Where the violations are, as here, committed in a persistent and recurring manner, consisting of more than one isolated incident, the courts have not hesitated to find that such violations were either fostered, condoned, or, negligently overlooked by the licensee, even though he may have been absent at the time of the commission of such. (Citations omitted.) In the present case, the recurring sales were made possible by appellant's failure to supervise the premises and his employees in a reasonably diligent manner, properly leading to the license revocation.
The Court in Lash permitted the Division to draw an inference that the licensee negligently overlooked the violations or failed to exercise ordinary care in the maintenance of the licensed premises or supervision of his employees based upon the operative facts in Lash.
In this case, there was evidence of more violations over a longer period of time than in the Lash case. Accordingly, the evidence in this case establishes a prima facie case. In this case, the evidence is sufficient to support an inference of the type drawn in Lash. Respondent negligently overlooked the several drug violations that took place on the licensed premises and failed to supervise the premises and her employee in a reasonably diligent manner under the circumstances.
For the reasons set forth above, Respondent also is culpably responsible for maintaining a nuisance in violation of Sections 823.10 and 561.29(1)(c), Florida Statutes (1983), and for keeping a place which is resorted to by persons using controlled substances in violation of Chapter 893 for the purpose of using those substances or which is used for keeping or selling them in violation of Chapter 893, thereby violating Sections 893.13(2)(a)(5) and 561.29(1)(a), Florida Statutes (1983).
