STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-0793

)

ROOSEVELT HORNE, d/b/a )

ROOSEVELT'S PLAYHOUSE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on June 14, 1989, in Port Orange, Florida.

APPEARANCES

For Petitioner: John B. Fretwell

Assistant General Counsel Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Roosevelt Horne, pro se

545 Julia Street

New Smyrna Beach, Florida 32069 STATEMENT OF THE ISSUES

Whether Roosevelt Horne has violated Section 561.29(1)(a) and/or (c), Florida Statutes?

PRELIMINARY STATEMENT

The Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, issued a Notice to Show Cause - Notice of Informal Conference on November 28, 1988, alleging misconduct in the operation of the business of the Respondent, Roosevelt Horne, d/b/a Roosevelt's Playhouse, and seeking to take disciplinary action against Mr. Horne as the holder of an alcoholic beverage license in the State of Florida. Mr. Horne executed a Request for Hearing on January 1, 1989, refuting the allegations of the Petitioner and requesting a formal administrative hearing. By letter dated February 7, 1989, the Petitioner forwarded the request for hearing to the Division of Administrative Hearings.

At the formal hearing the Petitioner presented the testimony of Reylius Thompson and Blossem Butler White. The Petitioner also offered two exhibits which were accepted into evidence. Mr. Horne testified on his own behalf and offered no exhibits.

The parties stipulated that substances obtained by Mr. Thompson at Roosevelt's Playhouse which were testified about by Mr. Thompson were chemically analyzed and found to be cocaine.

The Petitioner has filed a proposed recommended order containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto. Mr. Horne did not file a proposed recommended order.

FINDINGS OF FACT

1. At all times pertinent to these proceedings, Roosevelt Horne was doing business as Roosevelt's Playhouse at 541 Julia Street, New Smyrna Beach, Volusia County, Florida, pursuant to Florida alcoholic beverage license number 74-00549, Series 2-COP. Roosevelt's Playhouse is the licensed premises.

   
   

2. From September 21, 1988, through October 1, 1988, Blossem Butler White was employed by Mr. Horne at Roosevelt's Playhouse. Ms. White was the only person employed at Roosevelt's Playhouse by Mr. Horne from September 21, 1988, through October 1, 1988.

   
   

3. During the period of September 21, 1988, through October 1, 1988, Reylius Thompson, a Law Enforcement Investigator of the Petitioner, participated undercover in a narcotics investigation of Roosevelt's Playhouse conducted by the Petitioner and New Smyrna Beach law enforcement officials.

   
   

4. On the afternoon of September 21, 1988, Investigator Thompson entered Roosevelt's Playhouse. There were approximately 5 to 6 persons on the premises. Ms. White was the bartender. Mr. Thompson asked Ms. White if he could purchase crack cocaine. Ms. White first suggested that Investigator Thompson approach a male patron in the bar. Investigator Thompson indicated that the individual would not sell anything to him. Ms. White then asked Investigator Thompson how much cocaine he wanted and he indicated two pieces. Investigator Thompson gave Ms. White $20.00. Ms. White left her position behind the bar and approached a female patron identified as Angie Lewis. Ms. White and Ms. Lewis then approached a man in the lounge identified as Carlton. Ms. White gave Carlton money and Carlton gave Ms. White an item. Ms. White and Ms. Lewis returned to the bar and Ms. Lewis gave a piece of crack cocaine to Investigator Thompson. Investigator Thompson left Roosevelt's Playhouse and delivered the cocaine to Sergeant Lenz of the New Smyrna Beach Police Department.

   
   

5. During the afternoon of September 29, 1988, Investigator Thompson entered Roosevelt's Playhouse. Ten or less patrons were on the premises. Ms. White was on duty as the bartender. Investigator Thompson sat at the bar and asked Ms. White if he could buy crack cocaine from her. Ms. White indicated that she did not have any at that time and asked if he could wait 15 minutes. After fifteen minutes Ms. White took Investigator Thompson into the men's restroom where she retrieved several pieces of crack cocaine wrapped in a napkin. Investigator Thompson took two pieces of the crack cocaine and paid Ms. White $40.00. Investigator Thompson left Roosevelt's Playhouse and delivered the cocaine to Sergeant Lenz.

6. Investigator Thompson returned to Roosevelt's Playhouse during the evening of September 29, 1988. Ms. White was on duty as the bartender. Investigator Thompson asked Ms. White for one piece of crack cocaine. Ms. White left the service bar and went to the ladies restroom. Ms. White returned shortly thereafter and gave Investigator Thompson a piece of crack cocaine. Investigator Thompson paid Ms. White $10.00. Investigator Thompson left Roosevelt's Playhouse and delivered the cocaine to Sergeant Lenz.

   
   

7. During the afternoon of September 30, 1988, Investigator Thompson entered Roosevelt's Playhouse. Five to six patrons were on the premises. Ms. White was on duty as the bartender. Investigator Thompson asked Ms. White is she had any crack cocaine. Ms. White said that he should get it from a man in the lounge later identified as Darnell. Investigator Thompson indicated that he did not want to buy it from Darnell. Ms. White then told Investigator Thompson that she would get it for him. Investigator Thompson then gave Ms. White $20.00 and Ms. White gave the money to Darnell in exchange for an item. Ms. White returned to her position behind the bar and gave Investigator Thompson a piece of crack cocaine. Investigator Thompson left Roosevelt's Playhouse and delivered the cocaine to Sergeant Lenz.

   
   

8. During the evening of October 1, 1988, Investigator Thompson entered Roosevelt's Playhouse. Ms. White was on duty as the bartender. Ms. White was standing by a video machine talking to an individual known as Tony.

   Investigator Thompson approached the two individuals and asked Tony if he could buy crack cocaine. Tony said yes, took a piece of crack cocaine from his pocket and placed it on top of the video machine. Investigator Thompson gave Tony

   $20.00 and took the cocaine. Ms. White witnessed the. transaction. Investigator Thompson left Roosevelt's Playhouse and delivered the cocaine to Sergeant Lenz on October 3, 1988.

   
   

9. The items purchased by Investigator Thompson at Roosevelt's Playhouse were analyzed and determined to be cocaine.

   
   

10. During the period of September 21, 1988, through October 1, 1988, Mr. Horne was told by a friend that the friend suspected that Ms. White was selling illegal drugs at Roosevelt's Playhouse. Mr. Horne approached Ms. White on two separate occasions and asked her if she was in fact selling drugs. Ms. White denied that she was selling drugs. Mr. Horne did not take any other steps to insure that Ms. White was not selling, or allowing the sale of, drugs on the premises.

    
    

11. During the time that Investigator Thompson was in Roosevelt's Playhouse, Mr. Horne did not enter the premises. Mr. Horne did not enter the premises very often despite the fact that Mr. Horne lived only one house from the premises.

    
    

12. During the period at issue in this case Mr. Horne's wife had a stroke and was in the hospital. Mr. Horne spent his time visiting his wife in the hospital and working as a building contractor.

    
    

13. Other than asking Ms. White if she was selling drugs in the lounge, Mr. Horne did not take any steps to prevent the sale of illegal drugs at Roosevelt's Playhouse.

    
    

14. Roosevelt's Playhouse is closed and Mr. Horne is attempting the sell

    it.

15. Mr. Horne cooperated with the Petitioner in the prosecution of this case.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

17. Section 561.29(1), Florida Statutes (1987), authorizes the Petitioner to revoke or suspend the beverage license of any person holding a license under the beverage law if, among other things, it is shown that the licensee is guilty of the following violations:

    
    

    1. 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 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; . . .

       (c) Maintaining a nuisance on the licensed premises.

       
       

18. Mr. Horne has been charged with violating both of these prohibited acts. In particular, the Petitioner has alleged that Ms. White, an agent, servant or employee of Mr. Horne, sold crack cocaine, a controlled substance, on September 21, 29 and 30, 1988, on the licensed premises and that on October 1, 1988, a man known as Tony sold crack cocaine on the licensed premises in violation of Sections 893.13(1)(a) and 561.29(1)(a), Florida Statutes (1987).

    It has also been alleged by the Petitioner that Mr. Horne, through his agent, servant or employee, Ms. White, maintained Roosevelt's Playhouse as a place which was resorted to by persons using controlled substances or for the keeping or selling of controlled substances contrary to Sections 893.13 (2)(a)5, 823.10 and 561.29, Florida Statutes (1987).

    
    

19. Cocaine is a controlled substance. Section 893.03, Florida Statutes (1987). The sale, purchase, delivery or possession with intent to sell, purchase or deliver cocaine is a violation of Florida law. Section 893.13(1)(a), Florida Statutes (1987). Section 893.13(2)(a)5, Florida Statutes (1987), also 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.

    
    

20. Finally, Section 823.10, Florida Statutes (1987), provides that it is unlawful to maintain a place or building where controlled substances are

    illegally kept, sold or delivered. The maintaining of such a place or building constitutes a nuisance.

    
    

21. The evidence in this case proved that Ms. White, an agent, servant or employee of Mr. Horne violated Section 893.13(1)(a), Florida Statutes (1987), by selling, purchasing and possessing with intent to sell cocaine, a controlled substance. Ms. White also violated Section 893.13(2)(a)5, Florida Statutes (1987), by keeping or maintaining a structure or place resorted to by persons far keeping and selling controlled substances. Ms. White also violated Section 823.10, Florida Statutes (1987), by maintaining or keeping a place or building where a controlled substance was illegally kept, sold and delivered. Finally, Ms. White allowed others to violate Sections 823.10, 893.13(1)(a) and 893.13(2)(a)5, Florida Statutes (1987), on Mr. Horne's licensed premises. These violations constitute a literal violation of Sections 561.29(1)(a) and (c), Florida Statutes (1987).

    
    

22. The Petitioner has not argued, nor did the evidence in this case prove, that Mr. Horne personally participated in any of the violations of law which took place at Roosevelt's Playhouse. Therefore, in order to conclude that Mr. Horne has violated Sections 561.29(1)(a) and (c), Florida Statutes, the Petitioner, had the burden of also proving that Mr. Horne was guilty of negligence, intentional wrongdoing, or lack of diligence in supervising and maintaining surveillance over the licensed premises. See, e.g., Simmons v. Business Regulation, Division of Alcoholic Beverages and Tobacco, 465 So.2d 578 (Fla. 1st DCA 1985); Golden Dolphin No. 2, Inc. v. Division of Alcoholic Beverages and Tobacco, 403 So.2d 1372 (Fla. 5th DCA 1981); and G & B of Jacksonville, Inc. v. Department of Business Regulation, 371 So.2d 138 (Fla. 1st DCA 1979)

    
    

23. Licensees, such as Mr. Horne, are not insurers against their agents or servants violating any liquor law. Wopdbury v. State Beverage Department, 219 So.2d 47 (Fla. 1st DCA 1969). Licensees may not, however, remove themselves from responsibility for violations of the liquor laws by their agents or servants by merely avoiding being present on the licensed premises or by claiming ignorance of repeated violations. G & B. of Jacksonville, Inc., supra. In order to avoid responsibility, licensees must fulfill their duty to exercise reasonable care and diligence to see that the licensed premises is conducted in a lawful manner and that the licensees' agents and servants do not violate any such law. Id.

    
    

24. The evidence in this case proved that Mr. Horne did not fulfill his responsibility to exercise reasonable care and diligence to supervise Roosevelt's Playhouse. The violations in this case were repeatedly and flagrantly committed by Ms. White, Mr. Horne's employee. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); Lash, Inc. v. Department of Business Regulation, 411 So.2d 276 (Fla. 3d DCA 1982); and Pauline

    v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962). Significantly, Mr. Horne had been advised by a friend that Ms. White may have been selling drugs at Roosevelt's Playhouse. Mr. Horne, therefore, had some indication that illegal activity was taking place on the licensed premises. Mr. Horne's only response to this information was to ask Ms. White whether she was in fact violating the law. Merely accepting Ms. White's denial that she was committing criminal acts did not fulfill Mr. Horne's responsibility.

    
    

25. Based upon the foregoing, it is concluded that Mr. Horne is in violation of Section 561.29(1)(a) and (c), Florida Statutes (1987). The Petitioner therefore has the right to revoke or suspend Mr. Horne's license.

Mr. Horne presented some facts in mitigation which the Petitioner should take into account. First Mr. Horne's wife was in the hospital during the period of time that the violations of law took place. Secondly, Mr. Horne cooperated with the Petitioner in the prosecution of this matter. Finally, Roosevelt's Playhouse is closed and Mr. Horne is attempting to sell the business. Based upon these facts, Mr. Horne should be given an opportunity to complete a sale of the business.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Roosevelt Horne, d/b/a/ Roosevelt's Playhouse, be found

guilty of violating Sections 561.29(1)(a) and (c), Florida Statutes (1987). It

is further

RECOMMENDED that the alcoholic beverage license held by Roosevelt Horne be suspended for a period of six months to allow Mr. Horne an opportunity to sell the license and business. It is further

RECOMMENDED that, if Mr. Horne has not sold his alcoholic beverage license by the end of the six months suspension of Mr. Horne's license, Mr. Horne's alcoholic beverage license be revoked.

DONE and ENTERED this 19th day of July, 1989, in Tallahassee, Florida.

LARRY J. SARTIN

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 day of 19th July, 1989.

APPENDIX Case Number 89-0793

The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of

Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. 1.

2-3. 2.

4. 3.

5. See 4.

6-7. Not supported by the weight of the evidence. The evidence did not prove what was being sold on September 21, 1988, by Carlton and on September 23, 1988.

8. See 5.

9. 6.

10. See 7. The sixth sentence is not supported by the weight of the evidence.

11. 8.

12. 9.

13-14. 10.

14-16. 11.

COPIES FURNISHED:

John B. Fretwell Assistant General Counsel

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

Roosevelt Horne

d/b/a Roosevelt's Playhouse

541 Julia Street

New Smyrna Beach, Florida 32069

Leonard Ivey Director

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927

Joseph A. Sole General Counsel

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927

Docket for Case No: 89-000793

Orders for Case No: 89-000793