STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-6060

)

GARNETTA YVONNE GRAHAM )

d/b/a ALEXS GROCERY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on March 22, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: John B. Fretwell, Esquire

Assistant General Counsel Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Lionel Barnet, Esquire

11400 North Kendall Drive Miami, Florida 33176

PRELIMINARY STATEMENT

By amended notice to show cause, petitioner charged that respondent, individually or through the acts of her agent/employee, violated the provisions of Sections 561.29, 823.01, 823.10, and 893.13, Florida Statutes, by possessing, selling, or delivering a controlled substance on the licensed premises, and that she violated the provisions of Sections 561.15 and 561.29, Florida Statutes, by having been convicted of unlawful and felonious possession of cocaine.

Respondent requested a formal hearing on the charges, and the matter was referred to the Division of Administrative Hearings.

At hearing, petitioner called Rickey Mitchell and Sergio Perez as witnesses, and its exhibits 1 and 2 were received into evidence. Respondent called no witnesses and offered no exhibits. 1/

FINDINGS OF FACT

1. At all times material hereto, respondent, Garnetta Yvonne Graham, held alcoholic beverage license number 23-05643, series 2APS, for the premises known as Alexs Grocery, 260 N.W. 71st Street, Miami, Florida.

   
   

2. On June 17, 1988, Detective Rickey Mitchell of the Metro Dade Police Department, operating undercover, entered the licensed premises to purchase narcotics. He approached the young lady who was working behind the counter and asked her for a "dime cigarette" and a "ten cent rock" (cocaine), and passed her a ten dollar bill and one dime. The young lady went to a room at the rear of the store, and when she returned told Detective Mitchell that she did not have any "ten cent rocks" but only "five cent rocks." When Detective Mitchell told her that he would accept two "five cent rocks," the young lady returned to the room at the rear of the store and upon her return delivered two plastic baggies to Detective Mitchell. The contents of the baggies were subsequently analyzed and proved positive for cocaine.

   
   

3. The subject transaction was done openly, and with no attempt to conceal its occurrence from other persons on the premises. Respondent was not, however, present, and there was no proof that she had any actual knowledge that narcotics were sold or possessed on the licensed premises.

   
   

4. In an apparently unrelated incident, respondent was charged by an information filed with the Circuit Court of Dade County, Florida, with having unlawfully and feloniously possessed cocaine on July 24, 1988, in violation of Section 893.13, Florida Statutes, a third degree felony. 2/ On October 31, 1988, following a plea of nolo contendere, a final judgment was entered finding respondent guilty as charged.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. Section 561.29(1), Florida Statutes, authorizes petitioner to revoke or suspend a beverage license upon a showing of:

   
   

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

      (c) Maintaining a nuisance on the licensed premises.

      (g) A determination that any person required to be qualified by the division as a condition for the issuance of the license is not qualified.

      
      

7. Section 561.15, Florida Statutes, establishes the qualifications for issuance of a license. Pertinent to this case, section 561.15 provides:

   
   

   (2) No license under the Beverage Law shall be issued to any person... who has been convicted in the last past 15 years of any felony in this state...

8. The proof is clear and convincing that respondent was convicted of a felony in this state on October 31, 1988. Accordingly, respondent has violated the provisions of Section 561.29(1)(g), Florida Statutes, by having failed to maintain her qualifications for licensure.

   
   

9. The proof fails, however, to sustain the remaining charges against respondent. Here, there was no proof that respondent had any direct knowledge that narcotics were sold on the licensed premises, and the sole violation of law demonstrated was insufficient to demonstrate that respondent fostered, condoned or negligently overlooked such activity. See: Lash, Inc. v. State Department of Business Regulation, 411 So.2d 276 (Fla. 3d DCA 1982), and Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962). Accordingly, the proof fails to demonstrate a violation of Section 561.29(1)(a) or (c), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a

final order revoking alcoholic beverage license number 23-05643 held by

respondent, Garnetta Yvonne Graham d/b/a Alexs Grocery.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of May 1989.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1989.

ENDNOTES

1/ The record remained open for a period of 30 days following hearing to permit respondent the opportunity to submit proof that her judgment of conviction had been vacated or otherwise set aside. No such proof was filed by respondent.

2/ At hearing, there was no proof offered that the activities on which criminal charges were filed against respondent occurred on the licensed premises, or were otherwise related to the activities of that business.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraph 4.

   3 & 4. Addressed in paragraphs 2 and 3.

   
   

   Respondent's response to petitioner's proposed order is addressed as follows:

   
   

   1 & 2. Addressed in paragraphs 2-4.

3. Not relevant.

COPIES FURNISHED:

John B. Fretwell, Esquire Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

Lionel Barnet, Esquire 11400 North Kendall Drive Suite A214

Miami, Florida 33176

Thomas Wheeler, Supervisor Richmond Building

Suite 101

8420 N.W. 52nd Street Miami, Florida 33166

Leonard Ivey, Director

Department of Business Regulation Division of Alcoholic Beverages

and Tobacco

The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

Joseph A. Sole, Esquire General Counsel

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

Docket for Case No: 88-006060

Orders for Case No: 88-006060