vs. ) CASE NO. 90-6176
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on December 14, 1990, at Bartow, Florida.
725 S. Bronough Street Tallahassee, Florida 32399-1007
For Respondent: Richard D. Mars, Esquire
Whether the licensee fostered, condoned and/or negligently overlooked trafficking in and use of illegal narcotics and controlled substances on or about the licensed premises, failed to exercise due diligence in supervising its employees; and whether the licensed premises constitute a public nuisance as defined in Section 823.10, Florida Statutes.
By Notice to Show Cause dated September 14, 1990, the Division of Alcoholic Beverages and Tobacco (DABT) Petitioner, seeks to revoke, suspend or otherwise discipline the license of Chessor & McIntire, d/b/a Barry's II, Respondent. As grounds therefor, it is alleged that employees and patrons of Respondent made numerous sales of illegal narcotics and controlled substances on the licensed premises and environs during the period between May 30, 1990 and September 14, 1990, and the licensed premises is a public nuisance. On September 14, 1990, the Department issued an emergency order of suspension of this license, and Respondent was notified of its right to a prompt hearing. By letter dated October 22, 1990 Respondent requested a hearing, and this case was initially
scheduled to be heard October 26, 1990. Respondent's subsequent motion for a continuance was granted, and the case was scheduled for December 14, 1990, at which time it was held.
At the hearing, Petitioner called three witnesses, Respondent called four witnesses; and nine exhibits were admitted into evidence, six of which are depositions Respondent stipulated that the drugs purchased by the undercover agents during the investigation were what they were alleged to be. The only issue here involved is whether Respondent's officers knew or should have known, by the exercise of due diligence, that drugs were being dealt on the licensed premises and its environs. Accordingly, proposed findings submitted by the parties are accepted. Those proposed findings not included below were deemed unnecessary to the conclusions reached.
At all times relevant hereto, Chessor & McIntire, Inc., held alcoholic beverage license number 63-00525, series 4-COP, for a licensed premises known as Barry's II, located at Highway 92 and Fairway Avenue, Lakeland, Florida. Barry McIntire owns 50 percent of the stock and is president of the corporation. Richard Chessor owns the other 50 percent of the stock.
Following receipt of complaints that Barry's II was the site of illegal drug activities, the Division of Alcoholic Beverages and Tobacco contacted the Polk County sheriff's Office; and a joint undercover investigation was instituted. This investigation started in May 1990 and ended on September 14, 1990.
DABT agents entered Barry's II (the bar) on the evening of May 29, 1990, and during the early morning hours of May 30, 1990 agent West purchased a quarter gram of cocaine from a female patron of the bar. The purchase took place inside the premises. Barry McIntire was seated at his usual place at the bar some 15 feet from the end of the bar where the transaction occurred. Apparently, it was after this purchase that DABT contacted the Sheriff's Office, and the joint investigation commenced.
Undercover activities in the bar picked up in August 1990 when special agent Moore of the Polk County Sheriff's Department became a frequent visitor in the bar.
Deputy Sheriff Moore first entered the bar August 16, 1990 with DABT agent Green and a confidential informant (CI). On this date, Moore purchased methamphetamine (crank) from an employee, Robert Hollis (Bob) who worked as bouncer at the bar. This transaction occurred in the men's room on the licensed premises.
On August 21, 1990, Moore again entered the licensed premises and was approached by employee Bob who inquired if he was interested in purchasing crank, and when Moore replied in the affirmative, Bob introduced Moore to Rick, a former employee of the bar, who sold Moore crank. This transaction took place just outside the bar in the parking lot. Later this same evening, Rick again sold crank to Moore with the transaction taking place in the parking lot.
On August 22, 23, 24, 28, and September 4, Rick sold crank to Moore with the contact made inside the bar and the transaction occurring in the parking lot.
On August 23, 1990, Moore was approached inside the bar by another bouncer, "Tiny", who asked if Moore had a knife he could borrow. Tiny returned shortly thereafter, returned Moore's knife and stated he just did a "bodacious line of crank", indicating about 2 inches.
On August 29, 1990, Agent Green, Deputy Moore, and the CI, exited the bar to look for Rick in the parking lot. There they observed six patrons of the bar passing around a joint which each was smoking. The smoke smelled like marijuana. Later in the bar, an unidentified female patron asked Moore if he had any rolling paper so she could prepare a marijuana cigarette. Moore gave her a rolling paper.
On or about September 4, 1990, while Agent Green was in the bar, he was approached by waitress Kathy who asked if he was looking for anything. When Green replied yes, Kathy left and returned a short time later from the rear of the bar. She then handed Green a small plastic bag containing crank, and Green gave her $25.
On September 5, 1990, DABT Agents West and Green, and Deputy Moore, while in the bar, were told by Bob to go out back of the licensed premises. Outside, Moore found Rick who announced he had some "good weed" (marijuana) . Moore gave Rick $35 for a small bag of this marijuana. On the same date, waitress Kathy sold crank to Agent Green inside the bar; and Debbie Hollis, the ex-wife of Bob, sold crank to Moore outside the bar.
On September 6, 1990, Moore was approached by waitress Julie inside the bar, and she asked if he wanted some crank. Moore replied "yes" and handed Julie $25. She returned shortly thereafter and handed Moore, who was standing near the cigarette machine, a quarter gram of crank. On the same date, Moore was twice asked by Julie if he wanted to join her in smoking marijuana in the parking lot. Moore simulated smoking the joint and retained the butts which were later determined to be marijuana.
On September 8, 1990, Deputy Moore, while in the bar, was approached by Julie who inquired if he had a blade. He gave her his knife, which she returned some five minutes later and asked if he wanted any crank. Moore responded "no". Shortly before 2 a.m. the next morning, Julie gave Moore a small package of crank saying this is for the use of your knife.
The same evening, September 8th, Agent Green purchased crank from an employee named Sheila who delivered it to him in a cigarette package inside the bar.
On September 11, 1990, Deputy Moore was approached inside the bar by Rick. They went outside to the parking lot where Moore bought both cocaine and crank from Rick.
On September 12, 1990, Agent Green approached inside the bar by employee Kathy who inquired if he wanted "any" and said she had two kinds of [crank] that night. Green later purchased one quarter gram of "white methamphetamine" from Kathy in the parking lot.
On September 13, 1990, Deputy Moore followed McIntire to his office and asked McIntire if he could get Moore anything to "perk him up". McIntire told him he didn't do drugs, didn't condone drugs, but said "God bless you" when Moore departed.
Following many of these transactions, the undercover agents held the packages they had purchased up to the light of the cigarette machine to examine the quantity in such a manner that could readily be seen by patrons and others in the bar. They frequently showed these baggies to waitresses who smiled with the appearance of recognizing the contents of the baggies.
Robert W. Hollis (Bob) confirmed that Barry's had a policy of firing employees who sold drugs, but nobody was banned or kicked out of the bar for using drugs; and that there were too many people using drugs to kick everybody out. Hollis told Rick not to sell inside the bar, but to do his transactions outside.
Barry McIntire came to the bar almost every night around 10 p.m. and stayed until closing at 2 a.m., except weekends when he came in around 8 p.m. Most of the time McIntire was seated at the bar where he could observe the patrons and employees. McIntire testified he doesn't smoke, drink or do drugs, and that he doesn't condone the use of drugs. He has a policy not to allow drugs being sold on the premises, and if employees are observed doing drugs on the premises they are fired immediately. He also testified that he walks around in the bar occasionally and also strolls outside into the parking lot. He further testified that nobody can say he doesn't know what is going on in the bar and parking lot and that drugs are everywhere.
The bar was raided on September 14, 1990 by sheriff's deputies and DABT agents who also searched the premises. Several arrests were made, but no controlled substances were found on the licensed premises.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 561.29, Florida Statutes, provides the Division may 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 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.
Since Respondent's business is not a professional license, Petitioner need only prove the allegations by a preponderance of the evidence.
Section 823.10, Florida Statutes, provides that any store, shop or building 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 delivery of the same, is deemed to be a public nuisance.
Section 893.13(2)(a)5, Florida Statutes, makes it unlawful to keep or maintain any store, shop, warehouse, dwelling or building which is resorted to by persons using controlled substance in violation of Chapter 893, Florida Statutes. Chapter 893 makes it illegal to sell, inter alia, methamphetamine, cocaine or marijuana.
Although the corporate officer, Barry McIntire, who was present in the bar while most of the drug transactions above noted were made, denies any knowledge of these transactions, the circumstances surrounding these transactions and McIntire's testimony regarding the prevalence of drugs, belie this denial.
First, it is noted that these transactions were numerous, little effort was made to conceal the packets containing the drugs, the agents displayed their purchases to other patrons and employees without observing any disapprobation, employees as well as patrons were engaging in these transactions, and a goodly number of these transactions occurred on the licensed premises.
Second, McIntire himself testified that nobody could say he didn't know what was going on at the licensed premises, that drugs were everywhere, and he didn't condone anyone doing drugs on the premises. A permissible inference from the testimony is that McIntire wasn't too concerned about those transactions which occurred in the parking lot.
Third, there was testimony by one former employee that there were too many people doing drugs in the bar for one to throw all of them out.
With the frequency of the transactions and McIntire's presence in the bar every evening, it is concluded that McIntire was aware of the drug transactions taking place or was culpably negligent in not being so aware. Accordingly, Petitioner has proved, by a preponderance of the evidence, that employees of Respondent violated various provisions of Chapter 893, Florida Statutes, relating to the sale and use of controlled substances. Further, the evidence is clear that an officer of the Respondent, to wit: Barry McIntire, was aware of and permitted others on the licensed premises to violate provisions of Chapter 893, Florida Statutes.
Petitioner has also proved by more than a preponderance of the evidence, that this bar was visited by person for the purpose of using, buying or selling controlled substance, and thereby it became a public nuisance. Accordingly, Respondent has violated Section 893.13(2)(8)5, above quoted.
From the foregoing, it is concluded that Respondent has fostered, condoned and/or negligently overlooked trafficking in and use of illegal narcotics and controlled substance on the licensed premises and has failed to exercise due diligence in supervising its employees and managing the licensed premises to prevent the illegal trafficking in controlled substances thereon.
Based upon the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be entered finding Chessor & McIntire, d/b/a Barry's II, guilty of violating Section 561.29(1)(a) and (c), Florida Statutes, and revoking the license of Chessor & McIntire, d/b/a Barry's II, and assessing an administrative fine of $7500.
ENTERED this 18th day of January, 1991, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1990.
725 S. Bronough Street Tallahassee, FL 32399-1000
Richard D. Mars, Esquire Post Office Box 1276 Bartow, FL 33830
725 S. Bronough Street Tallahassee, FL 32399-1000
