STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS REGULATION ) DIVISION OF ALCOHOLIC BEVERAGES, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0545

) ORLANDO AND LORETTA MULKEY, d/b/a ) SONNY'S SERVICE CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing on April 19, 1988, in Clewiston, Florida.

APPEARANCES

For Petitioner: Belinda G. Noah, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondents: Orlando and Loretta Mulkey, pro se

d/b/a Sonny's Service Center Post Office Box 1921 Clewiston, Florida 33440

On December 14, 1987, the Respondents, through ORLANDO MULKEY, requested a formal administrative hearing on the charges set forth in the Notice to Show Cause dated October 27, 1987, which seeks to assess a civil penalty against, or to suspend or revoke Alcoholic Beverage License Number 36-00019, Series Number 2-APS.

At the hearing, the Petitioner called three witnesses and submitted two exhibits. The Respondent ORLANDO MULKEY cross examined two witnesses and testified in his own behalf. The Respondent LORETTA MULKEY submitted one exhibit and testified in her own behalf. All three tendered exhibits were admitted into evidence without objection. After cross examination of the Respondents, no additional evidence was presented and the evidentiary portion of the proceedings was closed by the Hearing Officer.

A transcript was not ordered by the parties. Proposed Findings of Fact and Conclusions of Law were submitted by the Petitioner. Specific rulings on the Findings of Fact are found in the attached Appendix. Although the Respondent LORETTA MULKEY submitted a number of letters attesting to her good character on April 29, 1988, these will not be considered by the Hearing Officer as the evidence was closed on April 19, 1988.

ISSUE

Whether the Respondents, ORLANDO MULKEY and LORETTA MULKEY, d/b/a SONNY'S SERVICE CENTER, should have their alcoholic beverage license suspended or revoked.

FINDINGS OF FACT

1. The Respondents ORLANDO MULKEY and LORETTA MULKEY hold Beverage License No. 36-00019, Series No. 2-APS for the premises known as SONNY'S SERVICE CENTER located at 635 and 637 Alabama Avenue, Clewiston, Florida.

   
   

2. On July 14, 1987, the Respondent ORLANDO MULKEY was adjudicated guilty of the offense "Sale of a Controlled Substance, Cocaine" in Circuit Court Case No. 87-59 in Hendry County, Florida.

   
   

   Although the specific statute number was not set forth in the judgment and sentence as suggested in the uniform judgment and sentence found in Rule 3.986, Rules of Criminal Procedure, it appears that ORLANDO MULKEY was found guilty of a felony under Section 893.13(1)(a) and Section 893.03(2)(a)4, Florida Statutes. This finding is based upon the length of the probation term (5 years) and the written description of the offense in the judgment.

   
   

3. The judgment and sentence were a result of a criminal offense which took place on November 13, 1986.

   
   

4. During the hearing, after receiving instruction from the Hearing Officer concerning his Constitutional right against self-incrimination, which he appeared to understand, ORLANDO MULKEY admitted to possessing crack cocaine on the premises of SONNY'S SERVICE CENTER on November 13, 1986, during his management shift.

   
   

5. ORLANDO MULKEY and LORETTA MULKEY conducted business in SONNY'S SERVICE CENTER on different shifts. LORETTA MULKEY was not aware that ORLANDO MULKEY, her co-licensee, was using crack cocaine. She was not aware that he had crack cocaine in his possession on the licensed premises during his shift. As the managerial and supervisory responsibilities were divided between the co- licensees on the basis of their respective shifts, LORETTA MULKEY, had no connection with any drug related activities.

   
   

6. On June 18, 1987, ORLANDO MULKEY quitclaimed his interest in the real property where SONNY'S SERVICE CENTER is located to LORETTA MULKEY.

   
   

7. Although ORLANDO MULKEY and LORETTA MULKEY are co- licensees, there is no evidence in the record to establish that a legal entity relationship exists between the MULKEYS in the conduct of business as SONNY'S SERVICE CENTER.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57(1), Florida Statutes.

   
   

9. Section 561.29(1)(a), Florida Statutes, authorizes the DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO to revoke or suspend an alcoholic beverage license when it is shown that the licensee, or his agent or his employee, while

   on the premises, violated any law of the state. Section 561.29(1)(a), Florida Statutes, further provides:

   
   

   . . . whether or not the licensee or his or its agents, 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.

   
   

10. Section 92.05, Florida Statutes, allows certified copies of final judgments rendered and entered in courts of record of this state to be admissible as prima facie evidence of the entry and validity of such judgments. The certified copy of the judgment and sentence entered on July 14, 1987, placed into evidence by Petitioner, coupled with the testimony of ORLANDO MULKEY, establishes by clear and convincing evidence that a felony drug violation took place on November 13, 1986, on the licensed premises.

    
    

11. Section 893.13(1)(a), Florida Statutes, makes it unlawful for any person to sell a controlled substance. Cocaine is a controlled substance pursuant to Section 893.03(2)(a)4, Florida Statutes.

    
    

12. The Notice to Show Cause alleges seven separate charges in which ORLANDO and LORETTA MULKEY were jointly accused of either possession or sale of crack cocaine. The eighth charge alleges that ORLANDO MULKEY and LORETTA MULKEY, or their agent, servant or employee was convicted of the felony sale of controlled substances.

    
    

13. The proof, as adduced in hearing, reveals that ORLANDO MULKEY was in possession of crack cocaine on November 13, 1986, contrary to Section 893.13(1)(a) and Section 893.03(2)(a)4, Florida Statutes. As a result of his possession of the crack cocaine on that date, the felony judgment, Case No. 87-

    59 in Hendry County, Florida, was entered against him. Based upon the foregoing, there is clear and convincing evidence to establish violations of the charges set forth in Paragraphs 7 and 8 against ORLANDO MULKEY in the Notice to Show Cause dated October 27, 1987.

    
    

14. There is no competent testimony in the proceedings to establish that ORLANDO MULKEY committed any of the violations charged in Paragraphs 1 through 6 of the Notice to Show Cause. Accordingly, the charges set forth in the enumerated paragraphs should be dismissed for lack of evidence.

    
    

15. During the hearing, there was no evidence presented which would connect LORETTA MULKEY with any of the charges set forth in the Notice to Show Cause. In fact, testimony revealed that she was unaware of ORLANDO MULKEY's crack cocaine use or his possession of it on the licensed premises.

    
    

16. ORLANDO MULKEY's possession of a controlled substance on the premises violated Section 561.29 and Section 893.13, Florida Statutes. This direct knowledge and participation by the licensee ORLANDO MULKEY warrants revocation of the license held by both ORLANDO MULKEY and LORETTA MULKEY. Section 561.15(3), Florida Statutes.

    
    

17. However, because of the innocent conduct of LORETTA MULKEY, co- licensee, it is recommended that the precedent set forth in the case of

    Oldhausen v. Department of Business Regulation, 472 So.2d 514 (Fla. 3d DCA 1985) be followed, and that LORETTA MULKEY be allowed to obtain a new beverage license in her sole name, which would automatically be issued upon payment of the appropriate fees.

    
    

18. Again, there is no evidence that the co-licensee, LORETTA MULKEY, actually or constructively permitted anyone to conduct illegal drug activity on the licensed premises. The Petitioner, THE DEPARTMENT OF BUSINESS REGULATION, proved only one incident of a felony drug violation on November 13, 1986. On the basis of the lack of personal knowledge and the fact of only one proved incident involving illegal drug activity, LORETTA MULKEY should be allowed the equitable remedy as to the joint license revocation and reissuance of a license in her name as set forth in Oldhausen. The Division has the authority to apply equity in license revocation proceedings, and should adjudicate on equitable principles. Cohen v. Scott, 48 So.2d 154 (Fla. 1950)

Based upon the foregoing, it is RECOMMENDED:

That all of the charges against the Respondent LORETTA MULKEY in the Notice to Show Cause dated October 27, 1987, should be DISMISSED.

That the charges in Paragraphs 1 through 6 against the Respondent ORLANDO MULKEY in the same Notice to Show Cause should be DISMISSED.

That the Respondent ORLANDO MULKEY be found GUILTY of the violations charged in Paragraphs 7 and 8 in the Notice to Show Cause dated October 27, 1987.

That the Division of Alcoholic Beverages and Tobacco should revoke Beverage License No. 36-0019, Series No. 2-APS, and that LORETTA MULKEY should be allowed to obtain a new beverage license in her sole name, which would automatically be issued by the Division upon payment of the appropriate fees.

DONE AND ENTERED this 20th day of May, 1988, at Tallahassee, Florida.

VERONICA E. DONNELLY, 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 20th day of May, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0545

Petitioner's proposed Findings of Fact are addressed as follows:

1. Included in H.O. 1.

2. The testimony of Petitioner's witness Lorenzo Jackson is rejected by the Hearing Officer as being incompetent, unreliable, and lacking in credibility. Lorenzo Jackson was a paid confidential informant who worked for

   the Hendry County Sheriff's Department. No one from the Sheriff's Department testified as to Lorenzo Jackson's reliability as a confidential informant. He allegedly purchased drugs from ORLANDO MULKEY, but there was no testimony from a member of the Sheriff's Department demonstrating that such controlled buys had taken place with the proper searches and monitoring of the scene and Lorenzo Jackson by the Sheriff's Department before the alleged buys. Also, there were no lab reports entered into evidence confirming that narcotics given to Lorenzo Jackson were handed over to the Sheriff's Department and found to be crack cocaine after testing. His reliability and competency were further tainted by the fact that an undercover police officer accompanied him to the hearing, sat through his testimony, had promised to pay for his testimony, and left with the witness after he "performed." Therefore, the second proposed Finding of Fact is rejected in full by the Hearing Officer.

3. Rejected. (See Paragraph 2)

4. Rejected. (See Paragraph 2)

5. There is no Number 5 proposed Finding of Fact.

6. Irrelevant.

7. Rejected in part. Mr. Chamness is not a lawyer and is incompetent to render a legal opinion on the issue of whether probable cause existed to obtain a search warrant. Mr. Chamness did not participate in the search of ORLANDO MULKEY, but his testimony that ORLANDO MULKEY was arrested for possession of drugs at the licensed premises is accepted. Mr. Chamness' testimony as to the result of the lab analysis is accepted, but is given weight only because of ORLANDO MULKEY's testimony at hearing which corroborated this hearsay. Accepted Findings are included in H.O. 3.

8. Rejected. Irrelevant.

9. Rejected. Double hearsay and clearly inadmissible and irrelevant testimony.

10. Rejected. Double hearsay. Also, the judgment and sentence speak for themselves and do not say what the witness proposed that they say. Such testimony is clearly contrary to the requirements of Section 561.29(1)(a), Florida Statutes, and must be rejected.

11. Accepted. Included in H.O. 3 and 4.

12. Accepted. Included in H.O. 3 and 4.

13. Rejected. Irrelevant.

14. Accepted in part. LORETTA MULKEY said she operated the business while ORLANDO MULKEY was in jail. She did not say "for the charges stemming from his plea of guilty to four counts of sale of cocaine." That portion of the summarizing by counsel for Petitioner is rejected.

15. Accepted except for the part that ORLANDO MULKEY always kept cocaine in his sock. This summarizing by counsel is rejected. This summary neglects to provide ORLANDO MULKEY's testimony that he will not be working in the store and has started a lawn care business in order to earn a living.

16. Rejected. The Notice to Show Cause is part of the pleadings in the cause and it was cumulative to reiterate what it contains in the proposed Findings of Fact. Proposed Finding of Fact Number 16 also contains conclusions of law, which were rejected as Findings. They were reviewed as if placed in the Proposed Recommended Order as Conclusions of Law.

COPIES FURNISHED:

Belinda G. Noah, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Orlando and Loretta Mulkey d/b/a Sonny's Service Center Post Office Box 1921 Clewiston, Florida 33440

Daniel Bosanko, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32399-1000

Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

Docket for Case No: 88-000545

Orders for Case No: 88-000545