STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3718

)

ARTURO G. MUNIZ, d/b/a )

CHICHE ON THE BEACH, )

)

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 10, 1992, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Monica Adkins-White

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

For Respondent: Norman D. Zimmerman, Esquire

737 East Atlantic Boulevard Pompano Beach, Florida 33060

STATEMENT OF THE ISSUES

At issue in this proceeding is whether respondent committed the offenses set forth in the notice to show cause and, if so, what disciplinary action should be imposed.

PRELIMINARY STATEMENT

By notice to show cause dated May 17, 1991, petitioner charged that respondent, the holder of an alcoholic beverage license, violated the provisions of Sections 561.14, 561.29, 893.13 and 893.147, Florida Statutes, and Rule 7A- 4.043, Florida Administrative Code, by unlawfully possessing, selling or delivering a controlled substance on the licensed premises; by unlawfully possessing drug paraphernalia on the licensed premises; by unlawfully purchasing alcoholic beverages from an unlicensed distributor; and by failing to maintain records required by the beverage law.

At hearing, petitioner called as witnesses: James Carney, Curtis Mancini, John Brigido, Michael Antinick, Randy Hilliard, Carol Owsiany, and Sandra Lamar.

Petitioner's exhibits 1-7 were received into evidence subject to the limitations noted of record. Respondent called James Carney as a witness, but offered no exhibits.

The transcript of hearing was not ordered, and the parties were granted leave until March 23, 1992, to file proposed findings of fact. Petitioner elected to file such proposals, and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times pertinent hereto, respondent, Arturo G. Muniz, held alcoholic beverage license number 16-06467, series 2-COP, for the premises known as Chiche on the Beach, (the "premises") located at 2805 East Hallandale Beach Boulevard, Hallandale, Broward County, Florida.

   
   

2. On January 11, 1991, Detective James Carney, of the Davie Police Department, operating undercover, and a confidential informant (CI) entered the licensed premises as part of an ongoing narcotics investigation to purchase marijuana. At the premises, the detective and the CI approached respondent, and the CI inquired of respondent if he "had something" or if he could "get something today," referring to marijuana. Respondent replied that "it was not here now," advised that he was expecting a delivery soon, that it would be more expensive ($60 instead of $55 for a quarter ounce), and advised the undercover officer and CI that they should place their order now. The CI then informed respondent that they wanted "2-quarters."

   
   

3. While awaiting the arrival of the marijuana, the undercover officer and CI walked toward the beach to dispel suspicion and to communicate with backup police regarding the possible sale. Returning to the premises, the officer and CI sat on a wall outside the premises until the respondent whistled or beckoned the CI to the premises. Shortly thereafter, the CI purchased a baggie containing approximately one quarter ounce of cannabis, commonly known as marijuana, from respondent for $60.00.

   
   

4. On March 5, 1991, the undercover officer, accompanied by Hallandale Police Officer Michael Antinick, returned to the licensed premises to arrest respondent. The respondent was standing behind the service counter, and there was no one else near the service counter and certainly no one, other than respondent, within arm's length of an ashtray that contained a smoldering "roach" (marijuana cigarette) or the white paper plate that contained a small amount of marijuana and some rolling papers. Such paper plate is commonly used, as it apparently was in this case, to separate the desirable marijuana leaf particles from the undesirable marijuana seeds by placing the marijuana on the plate and shaking it until the leaf particles and seeds are separated. The rolling papers found on the paper plate are commonly used to roll the marijuana leaf particles into a cigarette, such as the marijuana cigarette that was found smoldering in the adjacent ashtray.

   
   

5. On March 13, 1991, petitioner, through its special agent Carol Owsiany, conducted an inspection of the licensed premises. At such time, respondent was not present, but an employee named "Sheedie" (phonetic) was on duty. Agent Owsiany requested the records and invoices for the business from "Sheedie."

   What "Sheedie" did produce was "not much" in the opinion of Agent Owsiany, but from the records that were available it was disclosed that on March 2, 1991, and again on March 8, 1991, a total of eight six-packs of Heineken beer had been purchased from Valros Warehouse, which was not a licensed distributor under the

   Florida Beverage Laws, for resale on the premises. According to "Sheedie," such beer was purchased to "tide them over" until their regular distributor made its delivery. No further proof was offered regarding any further efforts by petitioner to secure the records of the business regarding alcoholic beverage purchases or the licenses, if any, held by Valros Warehouse.

   
   

6. In cases involving possession, use, delivery, or sale of controlled substances on the licensed premises, if the violation is committed by the licensee, it is the petitioner's established policy to revoke the license.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. 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. . . .

      * * *

      (e) Violation by the licensee . . . of any rule or rules promulgated by the division in accordance with the provisions of this chapter . . . .

      
      

9. Section 893.13(1)(a), Florida Statutes, makes it unlawful for "any person to sell, purchase, manufacture, or deliver, or possess with intent to sell, purchase, manufacture, or deliver, a controlled substance. Cannabis, commonly known as marijuana, is such a controlled substance. Section 893.03(1)(c), Florida Statutes. Here, the proof demonstrates that respondent violated the provisions of Section 893.13(1)(a), Florida Statutes, on the licensed premises and, therefore, violated the provisions of Section 561.29(a)(1), Florida Statutes.

   
   

10. Section 893.147(1), Florida Statutes, makes it unlawful for "any person to use, or to possess with intent to use, drug paraphernalia." Applying the definition of drug paraphernalia set forth in Section 893.145, Florida Statutes, and the criteria for determining when an object is drug paraphernalia set forth in Section 893.146, Florida Statutes, to the facts of this case, demonstrates that respondent violated the provisions of Section 893.147(1), Florida Statutes, on the licensed premises and, therefore, violated the provisions of Section 561.29(1)(a), Florida Statutes. See also, Brown v. State, 428 So.2d 251 (Fla. 1983).

    
    

11. Pertinent to this case, Section 561.14(3), Florida Statutes, prohibits a vendor from purchasing or acquiring in any manner for the purpose of resale any alcoholic beverages from any person not licensed as a manufacturer, bottler or distributor under the Beverage Law. Here, the proof fails to support the conclusion that respondent violated the provisions of Section 561.14(3), Florida Statutes, and, therefore, violated the provisions of Section 561.29(1)(a), Florida Statutes. Notably, while the proof demonstrated that Valros Warehouse was not a licensed distributor, it failed to demonstrate that Valros Warehouse was not a licensed manufacturer or bottler.

12. Finally, Section 561.55(3)(b), Florida Statutes, and Rule 7A-4.043, Florida Administrative Code, require a vendor to keep records of all purchases and other acquisitions of alcoholic beverages for a period of three years.

Here, the proof fails to support the conclusion that respondent violated the provisions of Section 561.55(3)(b), Florida Statutes, and Rule 7A-4.043, Florida Administrative Code, and therefore violated the provisions of Section 561.29(1)(a) and (e), Florida Statutes. Notably, while the law requires that a vendor maintain purchase records for a period of three years, no requirement has been advanced, and none has been discovered, that mandates that such records be maintained on the premises. Accordingly, given the nominal effort expended by the petitioner to secure such records, or the paucity of proof in this regard, it cannot be concluded that respondent failed to maintain records as required by law.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered revoking alcoholic beverage

license 16-06467, series 2-COP, held by respondent, Arturo G. Muniz.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of March 1992.

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 26th day of March 1992.

APPENDIX TO RECOMMENDED ORDER

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

1. Adopted in paragraph 1.

2. Subordinate.

3-8. Addressed in paragraphs 2 and 3, otherwise subordinate. 9-11. Addressed in paragraph 4, otherwise subordinate.

12 & 13. Addressed in paragraph 5.

14. Addressed in paragraph 6.

COPIES FURNISHED:

Monica Adkins-White Assistant General Counsel

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

Norman D. Zimmerman, Esquire 737 East Atlantic Boulevard Pompano Beach, Florida 33060

Richard W. Scully, Director Division of Alcoholic Beverages

and Tobacco

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

Donald D. Conn General Counsel

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-003718

Orders for Case No: 91-003718