STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, )
DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND ) TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 91-5349
)
JAMES ROY CREWS, d/b/a )
ROY'S PLACE, )
)
Respondent. )
)
RECOMMENDED ORDER
Notice was provided and on August 29, 1991 and September 5, 1991 a formal hearing was held in accordance with Section 120.57(1), Florida Statutes. The location for the hearing was Jasper, Florida. Charles C. Adams was the hearing officer.
APPEARANCES
For Petitioner: Nancy C. Waller, Esquire
Department of Business Regulation
725 S. Bronough Street Tallahassee, Florida 32399-1007
For Respondent: Donald K. Rudser, Esquire
Post Office Drawer 1011 Jasper, Florida 32052
STATEMENT OF THE ISSUES
The issues are framed by a notice to show cause/administrative complaint brought by Petitioner against Respondent charging Respondent with violations under 561.29(1)(a) and (c) and 561.58, Florida Statutes. These alleged violations pertain to alleged drug activities on or about the premises for which Respondent holds a license issued by the Petitioner allowing Respondent to sell alcoholic beverages at that licensed premises. Respondent is also accused of maintaining the licensed premises for purposes of illegal drug activities. More particularly Respondent is held accountable for any violations associated with Sections 823.10, 893.03, 893.13(1)(a) and (f), and 893.13(2)(a)5., Florida Statutes.
PRELIMINARY STATEMENT
Respondent had requested an expedited hearing to defend this action based upon the entry of an emergency order of suspension temporarily closing his business. That order came into effect on August 23, 1991, the date the notice to show cause/administrative complaint was also served. As a consequence the hearing was conducted on the dates described. To further the request for expedited treatment, Respondent on the last hearing date, September 5, 1991, filed a motion to expedite the entry of the recommended order. The parties were encouraged to submit their proposed recommended orders expeditiously to achieve Respondent's ends in requesting immediate disposition of the case. Petitioner's proposed recommended order was filed on September 17, 1991 followed by Respondent's proposed recommended order filed the next day. As indicated to counsel at the hearing, the recommended order is being entered as the work schedule for the undersigned would allow with due regard for the need for expedited disposition.
The fact finding set forth in the proposed recommended orders is spoken to in an appendix attached to the recommended order.
Petitioner presented testimony from Randall R. West and Clark Raby.
Petitioner's exhibits 1 and 3 through 9 were admitted into evidence. Respondent testified and presented the testimony of John Franklin Osborn, Margaret Bell and Frank R. Bell. Respondent's exhibits 1 through 7 were admitted.
On September 17, 1991 Petitioner filed a motion to reopen the case for purposes of offering additional evidence relating to the license disciplinary history. Respondent opposed. The motion is denied.
FINDINGS OF FACT
Petitioner regulates the alcoholic beverage industry in Florida pursuant to Chapter 561, Florida Statutes. Among its functions Petitioner issues various licenses which allow alcoholic beverages to be sold. The license number 34-00017, series 1-COP has been issued to Respondent by Petitioner allowing on-premises sales and consumption at Respondent's premises in Jasper, Florida.
Petitioner seeks to discipline Respondent's beverage license for reasons discussed in these facts and the conclusions of law section within the recommended order.
Randall R. West is a beverage agent employed by the Petitioner. He was assigned to conduct an undercover investigation at Respondent's licensed premises. That investigation commenced in May, 1991 and was concluded in August, 1991. Over that period West tried to ascertain to what extent drug activities were occurring on or about the licensed premises.
West talked to a patron in the licensed premises on May 10, 1991. That patron was Gary Cribbs. The discussion concerned the purchase of cocaine. Cribbs told West that he could get one-half gram of cocaine for $50.00. This discussion took place in the main bar area of the licensed premises in an area near the back pool table. After the arrangement for purchase had been made Cribbs approached West in the licensed premises and told West to follow him to the men's bathroom which was located outside the main bar area. To get there one walks out the back door across an open area to the bathroom which is attached to and part of the building proper. Only a few steps separate the
back door from the bathroom. Once inside the men's bathroom, which is lighted, Cribbs produced a small container from his wallet. He asked West if he, Cribbs, could use some of the cocaine that he had produced from the wallet. Cribbs took some of the substance and poured it on the top of the toilet lid, chopped it up and snorted it up his nostrils. Then Cribbs' wife came into the men's bathroom and both Cribbs and his wife consumed the cocaine. The balance of the cocaine was turned over to West.
On May 10, 1991 at different times the odor of marijuana could be detected in and around the licensed premises but West was uncertain of its origin.
On May 15, 1991 West encountered Lou Brown and Charles Burnett at the licensed premises. Lou Brown arrived on a motorcycle in an area behind the premises. While in this area on a concrete foundation five feet from the building, Brown and Burnett smoked marijuana.
West returned to the licensed premises on May 17, 1991 and once inside spoke to Charles Burnett. Burnett had approached the beverage agent reference a purchase of marijuana. This was a follow-up to a previous conversation about purchasing marijuana. Burnett asked West if West was still interested in purchasing marijuana and West replied in the affirmative. Burnett asked West to step outside the bar. Burnett said that he could get marijuana inside that was already weighed for a price of $40.00. West gave Burnett $40.00 while they were standing behind the building. Burnett went back inside the bar proper. West could not see where Burnett went in the bar. In a few minutes Burnett approached West in the bar and asked West to go outside. They went to West's vehicle which was approximately 20 feet from the entrance to the establishment. There Burnett produced a bag of marijuana.
On May 17, 1991 when Burnett and West had walked through the premises in the direction of the men's bathroom at the back of the building they had observed several people standing outside the back door smoking a marijuana cigarette. When West attempted to gain entry into the men's bathroom the door was partially opened and he observed two additional persons smoking marijuana in the bathroom.
On the evening of May 17, 1991 the Respondent was in the licensed premises.
West returned to the licensed premises on May 22, 1991 and engaged in a conversation with Charles Burnett. Burnett asked West if West had a marijuana cigarette and West stated that he did not. Burnett asked West if he wanted to buy some marijuana and West said that he did. Burnett asked how much marijuana West wanted to purchase. West said he wanted a quarter of an ounce. This conversation took place while they were standing at the bar counter and it resulted in a purchase of marijuana off premises.
On May 22, 1991 while at the licensed premises while going to use the men's bathroom West observed patrons standing just outside the back door of the building engaged in smoking marijuana. During most of that evening the smell of marijuana pervaded the inside of the premises. On two occasions Frank Bell who was the bar manager on duty was observed going out the back door of the premises and smoking marijuana with patrons while standing in back of the building. At this time the front door and back door to the building were propped open.
When West returned to the licensed premises on May 24, 1991 he observed that the Respondent was present. Throughout that evening West observed patrons smoking marijuana behind the building outside the back door. Because of the ventilation system that was within the licensed premises the marijuana smoke from outside was being drawn into the premises such that anyone inside could have detected the marijuana smell if familiar with that aroma.
On May 24, 1991 West observed three persons outside the rear door of the premises smoking a marijuana cigarette. Those persons were Greg Sapp, Jeff Gritzs and Jack Walker.
On May 24, 1991 West was approached by Burnett and asked if West wanted to buy some marijuana. This conversation took place while West was seated at the bar area within the licensed premises. After that conversation West watched Burnett engage in a conversation with Jack Walker. After Burnett and Walker talked Burnett came back to West and told West that he could get a bag of marijuana for $25.00. This second conversation between Burnett and West took place at the bar within the licensed premises. West gave Burnett $25.00 in furtherance of the discussion they had at the bar and Burnett walked around inside the premises and started to exit the rear of the premises. Believing that Burnett was looking for Jack Walker, West went to Jack Walker who was playing a pinball machine within the licensed premises near the front and told Jack Walker that Charlie was looking for him. Charlie refers to Charles Burnett. Walker and West stepped out the rear of the premises and went to a vehicle that was parked directly behind the premises in an alley. That vehicle was parked about 50 feet away from the licensed premises. Walker got into that vehicle and retrieved a bag of marijuana. Walker than handed the bag of marijuana to Burnett, West handed $25.00 to Burnett and then Burnett handed the
$25.00 to Walker. Then a marijuana cigarette was rolled at which time while standing in this area Burnett and Walker smoked a marijuana cigarette.
West returned to the licensed premises on June 6, 1991. While there he observed a patron, who was determined to be James Alford, engaged in a drug transaction with another patron, Michael Brooks. This transaction took place in the dance floor area of the licensed premises near the front in which Alford passed Brooks a bag of what by appearance was marijuana. Brooks then came over to the area where West was seated and while standing up and speaking in a somewhat loud voice told another person that he had "a big bag of pot" (pot is a slang expression for marijuana) and he then pulled it halfway out of his pants pocket.
Subsequent to the events between Brooks and Alford, West approached Alford and asked Alford if Alford had another bag of marijuana for sale. Alford responded that he did for $35.00. West asked if the purchase could be made for
$25.00 and Alford said that he would try. This conversation between West and Alford occurred in the licensed premises near the front door in the area of the front pool table. As a result of this conversation Alford gave West a bag of marijuana while they were standing within 20 feet of the front entrance of the building that is the licensed premises. This exchange took place in plain view of anyone coming in or out of the building.
On June 6, 1991 Burnett invited West to smoke a marijuana cigarette with him. In furthering the invitation West followed Burnett to the men's room associated with the licensed premises. When they reached the men's room they encountered a Billy Willis and Kevin Mercer. (In the investigation West had observed Billy Willis play records and tapes in the licensed premises in the manner of a disc jockey and had seen Willis turn off the lights at the licensed
premises. This does not lead to the conclusion that Willis was an employee there.) The back door was open and Willis was holding a plastic bag with what appeared to West to be marijuana. Willis was putting this substance in a rolling paper. Burnett produced something that he referred to as hash or hashish and this substance was put together with Willis's apparent marijuana and formed into a cigarette by Mercer. The marijuana cigarette that was then passed around and smoked by Burnett, Willis and Mercer, all standing at the back door of the premises just outside, within two feet of the building.
On June 6, 1991 while inside the licensed premises Burnett approached West and again asked West if he wanted to step outside and smoke another marijuana cigarette. Burnett and West exited the rear of the premises and encountered a man identified as Austin. Austin produced a marijuana cigarette at which time the cigarette was smoked by Austin, Burnett, Willis and a person named Doug Parr. This occurred within twenty feet of the rear door of the licensed premises.
On June 7, 1991 West returned to the licensed premises and engaged in a conversation with Kevin Mercer about purchasing a bag of marijuana and Mercer advised that he could get the marijuana but it would be later before he could obtain it. This conversation took place while the two were standing near the front pool table of the licensed premises. West was then approached by a white male patron who introduced himself as Bruce Adams. At this time West was seated on a stool inside the dance floor area of the licensed premises. Adams told West that he had a marijuana cigarette and invited West to go out and smoke it with him, assuming that West had rolling paper. After this conversation West and Adams stepped out the back door of the premises. Adams produced a plastic bag of marijuana. A marijuana cigarette was rolled at which time Adams smoked the marijuana cigarette and there were several other unidentified persons all standing around that engaged in smoking the marijuana cigarette. This event between Adams and the other patrons took place approximately three feet from the door of the premises.
On June 7, 1991 Kevin Mercer approached West while West was standing near the front pool table and asked West if West still wanted a bag of marijuana that had been discussed earlier that evening. West replied in the affirmative. West and Mercer then stepped outside the front entrance at which time Mercer produced a bag of marijuana and handed it to West and West paid Mercer $20.00 for the marijuana. This took place within ten feet of the front door on the sidewalk adjacent to the licensed premises. This transaction was in plain view.
On June 8, 1991 West returned to the licensed premises and while there stepped out back to a car that was parked behind the licensed premises in the alley. Approximately nine people were seated in that car. They were engaged in smoking a substance that was said to be hash or hashish. They were using a coke can converted into a pipe. There was a conversation that went on in which Jack Walker said the cost of a block of this substance being described as hash would be $150.00.
After the events outside with the nine persons in the automobile West returned to the licensed premises where Billy Willis was sitting at the disc jockey booth playing records and tapes. West engaged in a conversation with Willis and asked if he had any hash for sale. Willis advised that he had a small amount which he produced while seated at the D.J. booth and sold to West for $10.00. Later a conversation took place between West and Michael Brooks while seated in a booth across from a bar in reference to hash. West asked Brooks if he had any hash for sale and West advised that he did and directed
West to follow him to the men's bathroom. While in the bathroom Brooks produced a block of suspect hash and West told him he would take $20.00 worth. Brooks took West's knife and cut off a chunk of the suspect hash and handed it to West. Willis and Brooks had been among the nine persons in the vehicle located out behind the licensed premises earlier in the evening. That's how West became familiar with the idea of hash and its possible availability for sale. Later laboratory testing of the substances which Willis and Brooks sold to West did not reveal that the substances were hashish.
Later on June 8, 1991 West engaged in a conversation with Kevin Mercer while standing near the pool table. This conversation was about the purchase of marijuana. West gave Mercer $60.00 in advance to buy marijuana which Mercer said he could get. Subsequently Mercer delivered marijuana to West outside the front door of the licensed premises within a foot of the door.
On June 8, 1991 West spoke to Jack Walker about purchasing marijuana. They went out back within ten feet of the back door and West paid $80.00 to Walker for the purchase of marijuana.
West went back in the licensed premises on June 8, 1991 and engaged in a conversation with Michael Brooks. This conversation took place while seated in a booth across from the bar area. Brooks invited West to go and smoke hash with him. They exited the back door along with another patron named Robert Corey. They stood directly behind the men's room where the roof overhangs. Brooks had a coke can stashed in the rafters above the woodwork of this overhang. That coke can had been converted into a pipe. At that point Corey and Brooks smoked suspect hash. West had been advised that it was hash and it had that appearance.
In addition to the events that have already been described concerning June 8, 1991, West made observations of several groups of people at different times smoking marijuana behind the licensed premises and during these occasions the aroma of the marijuana could be detected inside the licensed premises proper.
West returned to the licensed premises on June 13, 1991. While there he observed Billy Willis standing out back near the men's bathroom. Willis advised West that he had enough marijuana for a marijuana cigarette and asked West if he had rolling paper. West gave Willis rolling paper at which time a marijuana cigarette was rolled and Willis smoked it. While Willis was engaged in smoking the marijuana cigarette, Frank Bell, the bar manager, exited the back door of the premises and looked over at West and Willis. West and Willis greeted Bell and Bell stepped back into the premises.
Later on June 13, 1991 while inside the licensed premises seated at the bar, Charles Burnett advised West that he had marijuana. West and Burnett went outside near the men's bathroom and Burnett rolled a marijuana cigarette and smoked it. West observed the smoke from the marijuana cigarette wafting into the licensed premises.
On June 13, 1991 while in the licensed premises West asked Jack Walker if Walker had marijuana to sell and Walker replied in the affirmative. Walker said that the marijuana had to be weighed. Later Walker was seated at the bar and West approached Walker and asked about the marijuana purchase. Walker advised West to step out back. Walker and West went into the men's bathroom where Walker produced the plastic bag of marijuana and a set of handscales.
Walker weighed the bag of marijuana and advised West that it would cost $45.00. West paid Walker $40.00 and gave him the balance of the money later.
On June 13, 1991 while seated at the bar next to Amy West, a patron, the female patron advised West that she had some "speed" also known as amphetamines. West asked the patron how much it would cost. The patron said it would be free. She put her purse on top of the bar and retrieved a pill bottle and produced a couple of white pills. She handed West four of the pills and told him that they were "white crosses". Later laboratory testing revealed that this was not a controlled substance. The pills were epherdrine.
In a further conversation on June 13, 1991 between West and Amy West while seated at the bar, discussion was made about cocaine. Amy West asked the beverage agent if the beverage agent would sponsor half the money necessary to buy half a gram of cocaine. The beverage agent said that he would and was told by Amy West that the beverage agent's share would cost $50.00. West, the beverage agent, put three twenty-dollar bills on top of the bar and asked Frank Bell for change for one of those twenty-dollar bills and then slid $50.00 across the bar to Amy West. She took the money and handed it to Gary Wayne Boyd who was seated next to her. Later Boyd asked beverage agent West to step out front with him. Beverage agent West, Amy West and Boyd then went out front to a pickup truck that was parked there. Boyd and Amy West were seated in the pickup truck and Boyd produced a quantity of suspect cocaine. Boyd divided the cocaine and delivered approximately half of that cocaine to beverage agent West. This took place within 40 or 50 feet of the front door.
On June 14, 1991 West returned to the licensed premises and while in the premises seated at the bar engaged in a conversation with Kevin Mercer about the purchase of marijuana. He gave $40.00 to Mercer to purchase the marijuana. Later Mercer delivered the marijuana to West while standing outside the front door of the licensed premises within about 40 feet of that door. The delivery took place in a corridor between the licensed premises and another building.
Later on June 14, 1991 West engaged in a conversation with Jack Walker while seated at the bar counter. Walker had squeezed between West and the Respondent at the bar. At that time Walker told West that he had a few bags of marijuana for sale at $50.00. West and the Respondent were seated and Walker placed himself between those two individuals. Walker was not seated. West had a further conversation with Walker at the back pool table and they departed to an area behind the men's bathroom at the licensed premises. There they encountered a man named Bart Harvey. Harvey gave two bags of marijuana to Walker who in turn gave the marijuana to West and West paid Walker $50.00.
On June 14, 1991 during the course of the evening West observed the odor of marijuana inside the licensed premises and he observed persons outside the premises smoking marijuana. The aroma of marijuana was even noticeable in the lobby of the licensed premises because of the ventilation system and during this time Respondent and his wife were present in the licensed premises.
On June 15, 1991 West returned to the licensed premises and engaged in a conversation with James Thomas Alford concerning the purchase of marijuana. This conversation took place in front of the premises between two parked cars. West gave Alford $50.00. Alford later approached West while West was in the licensed premises and asked West to step outside with him. Alford and West stepped outside to an area between two cars parked in front of the premises at which time Alford delivered a bag of marijuana to West. This location was within 30 feet of the front entrance to the licensed premises. A patron saw
this delivery being made and asked if he could purchase marijuana from the beverage agent.
On June 19, 1991 West returned to the licensed premises and engaged in a conversation with Amy West. Amy West asked the beverage agent if he wanted to smoke a marijuana cigarette with her at which time Amy West, Charlie Burnett, Gary Wayne Boyd, and the beverage agent exited to the rear of the premises.
They walked around behind the men's bathroom. They then came back in the licensed premises and went to the dance floor area side. When they entered the area of the dance floor inside the premises, Frank Bell, Jack Walker, and another unidentified white female and an unidentified white male were there smoking marijuana. Another marijuana cigarette was rolled by the unidentified white male and it was smoked. While they were in this location a patron Bobby Don Staten banged on the door and hollered out "Everybody put your hands on top of the bar." This person Staten was pretending to be a police officer.
On June 20, 1991 West went back to the licensed premises. While there he stepped out the back door near the men's bathroom and observed Frank Bell and Lou Brown engaged in smoking a marijuana cigarette. This was approximately three feet from the exit at the back.
On June 20, 1991 West engaged in a conversation with Kevin Mercer reference the purchase of marijuana. This was related to a purchase of marijuana off premises. This conversation with Kevin Mercer took place in the area where Lou Brown and Frank Bell had been observed smoking marijuana. The conversation between West and Mercer was overheard by Frank Bell, the bar manager.
On June 24, 1991 West returned to the licensed premises and while seated at the bar was approached by Gary Wayne Boyd. Boyd told West that he had cocaine for sale. Later Boyd came back to the bar where West was seated and motioned for West to follow him outside. They went to the men's bathroom.
There West observed Robert Corey and Charles Burnett. Burnett was sitting backwards on the toilet making lines of what appeared to be cocaine on the tank lid to the toilet. West considered this to be cocaine given its appearance.
While Burnett was conducting this activity Boyd and West were standing at the doorway. Boyd produced a white powdery substance and West asked him how much it would cost to purchase that substance. Boyd said that a gram would cost
$100.00. West told Boyd that he wanted to buy a gram and gave Boyd $100.00 to purchase the cocaine Boyd handed him.
On June 25, 1991 West returned to the licensed premises and was approached by Billy Willis while seated at the bar. Willis advised that he had a joint, meaning a marijuana cigarette. He invited West to step out back with him for the purpose of smoking marijuana. While standing just outside the back door of the premises Willis, Charles Burnett and another patron identified as Farmer smoked the marijuana cigarette. At that time the back door was closed; however, patrons were exiting the back door to use the men's bathroom.
West returned to the licensed premises on July 17, 1991. During that evening West and Jack Walker stepped out the back door of the premises. On the way out Walker made a motion for Walt the bartender on duty to come with West and Walker. While standing just outside the back door Walker produced a small amount of marijuana, rolled a marijuana cigarette and Walt and Walker engaged in smoking the marijuana. They were within three feet of the back door.
On July 18, 1991 while at the licensed premises West went to the men's bathroom and observed Robert Corey and an unidentified white female behind the premises engaged in smoking marijuana. Corey and this woman were within fifteen feet of the door. The odor of the marijuana being smoked could be detected inside of the premises. Corey and the woman were not trying to hide their activities in smoking the marijuana.
West returned to the licensed premises on July 19, 1991. He engaged in conversation with Jack Walker about the purchase of a quarter pound of marijuana while standing at the front pool table of the licensed premises. Later, while seated in the dance floor area of the bar, Walker asked West if he had a pocket knife. West replied in the affirmative and was told to follow Walker outside that he had something to share with him. They went into the men's bathroom at the licensed premises and while there Walker produced a quantity of what appeared to be cocaine and made it into lines on the toilet lid. Walker told West that this substance was cocaine. Walker snorted the suspect cocaine up his nose and they reentered the licensed premises.
On July 20, 1991 West returned to the licensed premises and went with Charles Burnett, Corey and Farmer out back. While outside near the back door Corey produced a marijuana cigarette while standing near the air conditioned compressor. Lou Brown and two other unidentified persons were already in the area. Those three individuals were engaged in passing a marijuana cigarette between them and were smoking it. While these activities were occurring other patrons stepped out of the back door of the premises either to use the bathroom or just to look around. The patrons were in a position to observe the marijuana being smoked. The back door was also propped open.
On July 22, 1991 West returned to the licensed premises. He was seated at the bar and there were only about five patrons present at that time. The patron known as Butch Brown entered the premises with his wife and hollered out "Who's got the best dope around." Jack Walker walked up to Butch Brown and produced a marijuana cigarette from his shirt pocket. This action by Walker could be clearly observed. Brown then produced his own marijuana cigarette from his shirt pocket. Brown and Walker compared the marijuana cigarettes while standing at the bar. Walker then said in a voice loud enough to be heard that when this "joint was gone he had a bag that he would smoke." These events took place in the licensed premises standing at the corner of the bar near the front pool table. Shortly thereafter West, Walker, Brown and Burnett went out behind the men's bathroom at which time the marijuana cigarette that Brown had earlier and the marijuana cigarette that Walker had earlier were smoked by Walker, Brown and Burnett. They were standing under the roof overhang near the bathroom.
On July 23, 1991 West returned to the licensed premises and while standing out back he engaged in a conversation with Jack Walker. Charles Burnett approached them and produced a marijuana cigarette and smoked it. This was within ten feet of the rear entrance to the licensed premises.
Later on July 23, 1991 West and Burnett were seated at the bar when they were approached by Walker who asked them to step out back with him. The three of them entered the men's bathroom at which time Walker produced a quantity of suspect cocaine. Walker put the suspect cocaine on the back of the toilet at which time Burnett began chopping the suspect cocaine into a finer powder and putting it into lines. Walker and Burnett inhaled the suspect cocaine up their nostrils. While this was occurring the door to the bathroom was closed. While in there someone banged on the door and said, "Hey, now ya'll get out of there with them drugs."
On July 23, 1991 while back inside the licensed premises Jack Walker was seated at the corner of the bar near the front pool table Walker motioned West to come over to him at which time Walker handed West a bag of marijuana in an open manner. This was done by pulling the bag of marijuana out of his pants pocket and handing it to West. This transfer occurred at the corner of the bar near the front pool table. West then stepped out back of the licensed premises with the bag of marijuana at which time Charles Burnett rolled a marijuana cigarette from that bag. Kevin Mercer and Charles Burnett engaged in smoking the marijuana cigarette. This took place within ten feet of the back door of the licensed premises.
On July 23, 1991 when West reentered the licensed premises Burnett had the previously described bag of marijuana that belonged to Jack Walker. Burnett was seen to walk over to where Walker was seated and in an open manner handed the bag to Walker.
On July 31, 1991 West returned to the licensed premises and was seated at the bar with Charles Burnett on his right and Jack Walker to Burnett's right. West overheard a conversation between Burnett and Walker in which Burnett was asking Walker about where something was. He observed Burnett walk to the dance floor area of the premises which was closed. Burnett then came back from the dance floor area and handed the person attending the bar a package wrapped up with a wrapper made of a brown paper bag. He asked the person tending bar to put it in the microwave for ten seconds. The bartender placed the package in the microwave in the bar area for ten seconds. After ten seconds he opened the door and smoke rolled out of the microwave and the smoke revealed the presence of marijuana which pervaded the licensed premises. Burnett then took possession of the marijuana. Burnett stated that a hole needed to be bored into the package of marijuana until his hands could cool down and then Burnett placed the package in his pants pocket. Frank Bell, who was the bar manager, was present playing the pinball machine. When the odor of marijuana started he made a comment to Burnett to not be cooking that marijuana in his microwave anymore.
On August 2, 1991 West went back to the licensed premises and noticed that Respondent was present. On that evening Walker approached West while West was standing at the pinball game and asked West if he wanted to buy an ounce of marijuana. West replied in the affirmative. Later Walker and West stepped out back of the licensed premises and while standing there Walker produced a plastic bag containing suspect marijuana and West purchased it from him for $65.00. There was a pickup truck parked next to the back door and the purchase was made while standing at the back of the pickup truck.
On August 3, 1991 West returned to the licensed premises. He saw Lou Brown, a patron, arrive at the premises on his motorcycle. Several other patrons and West stepped outside to take a look at the motorcycle Brown was riding. The motorcycle was parked directly in front of the premises. At that time Lou Brown produced a marijuana cigarette and lit it and began smoking it and passing it to Charlie Burnett to smoke as well as Farmer. Farmer was squatting down next to the front door. Frank Bell opened the door, poked his head out, looked at the motorcycle and said "nice bike." When Bell did this, Farmer who was engaged in smoking the marijuana cigarette, had his head turned toward Frank Bell and blew marijuana smoke in the direction of Bell.
On August 3, 1991 West went to the men's bathroom and saw several patrons smoking marijuana just outside the back door. He made a similar observation when going to the men's bathroom later on that evening.
West returned to the licensed premises on August 8, 1991. Burnett invited West to step out back of the premises to smoke marijuana with him. Once out back Burnett produced a bag of marijuana and a marijuana cigarette was rolled. Farmer and a white female identified as "Ditty-Bop" joined in with Burnett in smoking marijuana. They were within ten feet of the back door.
On August 8, 1991 Michael Brooks invited West to step out back of the premises to smoke marijuana with him. They were accompanied by Billy Willis and once outside Willis and Brooks went in the men's bathroom and with the door opened rolled a marijuana cigarette. Once the cigarette was rolled Brooks and Willis while standing behind the premises just outside the back door smoked the marijuana cigarette. They were within two or three feet of the back door when smoking the marijuana.
On August 9, 1991 West returned to the licensed premises. At that time he saw the Respondent and the Respondent's wife present. He also observed Frank Bell open the front and back doors and turn on the ventilating fans. When this was done West observed people standing outside the back door. He also observed that the smell of marijuana was sucked into the premises by the ventilating fans.
On August 9, 1991 West and Burnett went to the rear of the premises near the men's bathroom. Burnett produced a plastic bag of marijuana. A cigarette was rolled and Burnett smoked it. While Burnett and West were standing right at the corner of the men's bathroom, West observed the Respondent exit the premises. The Respondent entered the men's bathroom, exited the bathroom and looked back at West and Burnett. When the Respondent looked back Burnett was engaged in smoking the marijuana cigarette. Burnett was smoking the cigarette in an open manner. When Burnett would exhale the smoke of the marijuana it entered in through the back door of the premises. Respondent took no action to stop Burnett from smoking marijuana.
On August 9, 1991 while West was standing in front of the licensed premises, he ordered a bag of marijuana from Kevin Mercer and paid $25.00 in advance. Back inside the licensed premises seated near the lift windows inside the dance floor area Mercer approached West and asked him to step out back. They went out the back of the licensed premises and near the back door Mercer delivered a bag of marijuana to West. The delivery was made in an open manner within one foot of the exit on the side of the licensed premises where the D.J. booth is located.
On August 10, 1991 West entered the licensed premises and engaged in a conversation with Walker while standing next to the pool table. This discussion involved the purchase of marijuana. Walker told West that he had a bag of marijuana in his pocket and would have to look at it and see what it was worth. Walker and West stepped out back of the premises just outside the door. Walker produced a plastic bag of marijuana and told West that it would cost $20.00. West paid $20 for the marijuana. They were within two feet of the back door at that time.
Later on August 10, 1991 Burnett asked West to go outside and smoke a marijuana cigarette with him. As they were exiting West leaned over and told Frank Bell, bar manager, that West and Burnett were going outside to smoke a joint, meaning marijuana. Bell replied "good, I'll be right out". Later Burnett, Robert Corey and Frank Bell engaged in smoking a marijuana cigarette outside.
West returned to the bar on August 15, 1991. When he entered the bar the man named Walt was tending the bar. There were approximately eight patrons present. West ordered a beer and asked Walt where everybody was located. Walt explained that people were in the other portion of the licensed premises known as the dance floor, which was shut off and the door closed and the windows that separate the dance floor from the other part of the licensed premises were pulled down. West entered the dance floor area and saw several patrons. Those patrons were at the back of the dance floor near a service bar. Among them was Jack Walker. He commented that he had a bag of "pot," meaning marijuana, to smoke a joint from. Walker was trying to explain to Charlie Burnett where the bag of "pot" was. He explained that it was in a Budweiser beer box next to the bar on the other side, that is the main part of the premises. Burnett was having difficulty understanding Walker's directions and West offered to go get the marijuana. He walked over to the main part of the bar where approximately six patrons were present. He went to the boxes that were stacked in the area of the bar in the main part of the licensed premises. The box that he was looking for was among boxes where empty beer bottles are kept. He found the marijuana in a baggie and removed it and observed Walt the bartender watching what he was doing. He retrieved the bag of marijuana with his left hand and carried it around the main bar area back to the dance floor area. Once back in the dance floor area a white female patron named Sherry rolled a marijuana cigarette on top of the service bar in the dance floor area. That cigarette was then passed around and smoked. Eventually the persons in the dance floor area went back to the main part of the bar. At that time, Walt the bartender commented that the smell of marijuana was stinking up the bar. His reference was to "pot" smelling up the bar, meaning marijuana. Walt then went and turned the big ventilating fan on located in the wall and this cleared the marijuana smoke out. Later Burnett asked West to go smoke a marijuana cigarette with him at which time Burnett and West went through a door at the back of the dance floor area. Walt opened the door behind them in the dance floor area and told West and Burnett not to smoke any more dope back there. He said that if you want to roll one back there you can roll it but don't smoke it back there. Burnett could not find any rolling papers to prepare a marijuana cigarette so West and Burnett exited the dance floor area and went back to the main area of the bar. Subsequently, Burnett, Walker, Billy Willis, Sherry and West entered the dance floor area of the premises and Burnett produced a marijuana cigarette and rolling papers and a marijuana cigarette was rolled and smoked.
There were times other than the dates described when beverage agent West entered the licensed premises in the period May through August, 1991 and nothing irregular occurred.
On the Friday nights when Respondent would be in attendance there was a great deal of noise inside the licensed premises.
Concerning an awareness of the possible problems with drugs in the licensed premises, on April 19, 1990 Chief of Police John Franklin Osborn of Jasper, Florida spoke with the Respondent at Respondent's instigation. Chief Osborn also spoke with the sheriff's office of Hamilton County about getting an undercover officer to examine that potential problem. Osborn had previously spoken with the Respondent in November or December, 1990 about having an undercover person in the bar to look at the issue of possible drug activities there. At that time Osborn checked with the Hamilton County Sheriff's Office about an undercover officer doing surveillance. An undercover surveillance or investigation by the sheriff's office was not conducted.
In conversation Respondent had told Osborn that if sales of drugs were going on in the licensed premises the Respondent wanted to do something about it.
Osborn described the alley behind the licensed premises as one in which lighting is available at the local telephone office at the opposite end of the alley from the licensed premises. Osborn is also aware that a light exists in the men's bathroom of the licensed premises which provides light immediately outside that convenience. There are no lights in the alley proper. His description of the lighting is that it is medium quality lighting and that at night you can identify people if you are in the alley but if you are outside the alley you cannot look into the alley and identify who the people are.
Osborn established that no drug arrest had been made in the licensed premises other than arrests associated with the case that has been described here.
Osborn heard the Respondent tell Jack Walker to leave the licensed premises on one occasion, but the Respondent allowed Jack Walker back into the bar at a later date.
The nature of the patrol activity around the bar area was once on Friday and once on Saturday night. This refers to patrol activity by the Jasper, Florida Police Department.
Margaret Bell, who is the sister-in-law of Frank Bell, had managed the licensed premises in the past, as recently as the summer of 1990. She describes the Respondent's instructions to her were that she not allow drugs, unauthorized liquor, or fighting, and to call Respondent if problems occurred. In her experience the Respondent would be at the bar on Friday night. Respondent would return on Sunday or Monday morning to check up on the week's business.
Frank Bell who worked at the bar with his sister-in-law, Margaret Bell, had been informed of Respondent's conditions about misconduct in the bar. Frank Bell was recommended to replace his sister-in-law as bar manager and was the manager in the period of the subject investigation. The recommendation came from Margaret Bell.
Margaret Bell worked on July 5 and 6, 1991 as an employee under the management of Frank Bell and did not observe any problems in the bar. She established that Billy Willis is not an employee of the bar but someone who was allowed to play the records and tapes as disc jockey and would be given chips and cokes in return for his service.
Margaret Bell identified that on Friday and Saturday night with the noise level up you might have to yell at the person next to you to be heard above the din.
Margaret Bell identified that to get the kind of ventilation necessary to deal with the number of people in the bar in the summer that the employees would open the front door in the dance area and the back door on the main bar side.
Margaret Bell states that she has smelled marijuana in the bar when the exhaust fans were on and had told patrons to leave from the area behind the bar. She also told persons out front who were smoking marijuana to leave. These requests to have these persons leave were in accordance with the
Respondent's instructions to her. Margaret Bell has also seen Frank Bell ask patrons to leave five or six times.
Margaret Bell did not call law enforcement when she smelled marijuana out back which had occurred on seven to nine occasions. Additionally, she did not post signs about drug usage or receive any specific instructions about drug matters beyond those described before concerning Respondent's remarks to her.
Margaret Bell was told that Frank Bell had smoked marijuana during the period when she and her husband had first been married but she had not witnessed this personally.
Frank Bell was the bar manager from August, 1990 to August 23, 1991. His instructions as bar manager, based upon what the Respondent told him about management, was that no drugs and no unauthorized liquor would be allowed in the bar. Respondent made mention of those basic rules on many occasions.
Frank Bell identified the fact that he had told people to leave the outside area who were smoking marijuana. In this connection Frank Bell had asked people to leave the back door area on many occasions. The record does not reveal that he had called for law enforcement assistance to deal with this problem.
Frank Bell didn't post signs concerning prohibition against drug usage in the licensed premises.
Frank Bell's arrangement with the Respondent concerning his employment status was that he would share 50% of the net profits for his work as manager.
Frank Bell identified that Jack Walker, Gary Wayne Boyd, Billy Willis, Kevin Mercer, and Charles Burnett are customers of the licensed premises.
Frank Bell has also experienced the exhaust fans pulling marijuana smoke into the licensed premises.
Frank Bell was arrested based upon facts that are described, and charged with a criminal law violation based on those facts.
Respondent has been associated with the establishment for 33 years and has been the licensee since 1977. His practice in the past has been to hire someone to run the licensed premises and to split the profits with them. He is typically at the licensed premises on Friday. His instructions for management are no drugs, unauthorized liquor, fighting or card games.
Respondent corroborates that the noise level on Friday night is loud and that you need to be close to the person that you are conversing with to hear and be heard.
Respondent has never overheard people discussing drug transactions inside the bar. In the one instance where a transaction was discussed in his presence he did not hear because he has impaired hearing.
Respondent in describing his conversations with Chief Osborn spoke in terms of having the Chief check on the possibility of drugs at the licensed premises, although Respondent says he has never seen drugs in his business. He has smelled the marijuana smoke in the place.
Respondent has smelled the odor of marijuana on three or four occasions and that led him to tell Frank Bell or the person running the bar to tell people to leave who were smoking the marijuana. Again, the record does not reveal that Respondent sought the assistance of law enforcement on these occasions.
Respondent has never seen a drug transaction on or about the premises.
Respondent's attendance at the bar is usually from 7:00 p.m. until closing on Friday nights. Otherwise he just drops in occasionally.
Respondent has not put up lights out back so that patrons could be seen more clearly and their activities monitored, nor has he put signs up concerning the prohibition against drugs and he has not asked the Petitioner, local police department, or sheriff's office to talk to employees about drug problems.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.
Counts 1 through 19 involve allegations that Respondent through his own conduct or that of his agents, servants or employees; based upon possession, sell or delivery of controlled substances as defined in Section 893.03, Florida Statutes, the controlled substances alleged to be marijuana, cocaine and methamphetamine, by patrons, constituting a violation of Sections 893.13(1)(a) and (f), Florida Statutes, makes Respondent accountable under Section 561.29(1)(a). All those allegations have been proven save Counts 2, 5, 6, 10,
11 and 12.
In Count 20 Respondent, through his actions or those of his agents, servants or employees, Respondent is accused of unlawfully keeping or maintaining a place, to wit the licensed premisses which building or place was used for the illegal keeping, using, selling or delivering of substances controlled under Chapter 893.03, Florida Statutes, in particular cocaine and marijuana and by such arrangement violating Sections 823.10 and 893.13(2)(a)5, Florida Statutes, and by those violations Section 561.29(1)(c), Florida Statutes. Based upon the stated reasons more specifically described under Count 20, with the exception of those instances which relate back to Counts 2, 5, 6,
11 and 12, the Respondent has violated Section 823.10 and 893.13(2)(a)5, Florida Statutes, and by that violation has violated Section 561.29(1)(c), Florida Statutes.
Count 21 accuses the Respondent of failing to exercise due diligence in supervising his place of business in that he allowed his employees, agents and patrons to utilize the place of business for possessing, selling, delivering and using controlled substances in violation of Section 893.13, Florida Statutes, thereby violating Section 561.58, Florida Statutes.
Section 561.58, Florida Statutes states: Issuance of license for a prior license revoked.--When a license is revoked by the division, it may prohibit or permit a license to be issued for the location of the place of business formerly operated under such revoked
license. The maximum period of time that any such license shall be prohibited by the division from any such place of business shall be 2 years from the succeeding license renewal date as fixed by the division following such revocation.
This provision is interpreted to be an enforcement mechanism available to the Petitioner when a decision has been reached to revoke, following which Petitioner decides to prohibit as opposed to permit a license to be issued for the location of the place of business. It is not perceived as a matter examined contemporaneously with the administrative prosecution and is not seen to form the basis for a separate count in the notice to show cause/administrative complaint. Therefore, Count 21 should be dismissed.
In deciding the question of the culpability of the Respondent on the facts that have been found, it is understood that the licensee is not the absolute insurer of the actions of his employees, servants or agents or actions by patrons. He is not strictly accountable for their conduct. When misconduct occurs by one of those persons a single incident would not suffice to subject the license to discipline, especially not if the licensee had taken measures to protect against the prohibited acts by those persons. It is the persistent and recurring violations that may place the license in jeopardy. There, even acts of simple negligence by an employee would subject the licensee to the penalties envisioned by Section 561.29(1), Florida Statutes. Culpability by the Respondent for the actions of agents, servants and employees or patrons can occur through his own negligence, wrongdoing or lack of diligence. If he fosters, condones or negligently overlooks the violations, even if absent from the premises when they occurred, he may be held accountable. Repeated or flagrant violations by those persons creates an inference that the licensee condoned or negligently overlooked the violations and is accountable for them, even when absent. Respondent may not remove himself from responsibility in this case by reason of his absence from the premises or by a claim of ignorance of the repeated violations. His obligation was to supervise the operation of his business in a reasonable and diligent manner and he failed to do so. See Pauline v. Lee, 147 So.2d 359 (Fla. 2DCA 1962); G & B of Jacksonville, Inc. d/b/a/ Out of Sight v. State of Florida, Department of Business Regulation, Division of Beverage, 371 So.2d 138 (Fla. 1DCA 1979) and Lash, Inc. v. State of Florida, Department of Business Regulation, 411 So.2d 276 (Fla. 3DCA 1982).
Respondent made an arrangement with Frank Bell in the relevant period to run his business. By entrusting Bell to act appropriately and to ensure that others who frequented the establishment did likewise, Respondent made a decision that has been shown to be ill-advised. Frank Bell not only condoned illegal activities involving the controlled substances marijuana and cocaine, he was a willing participant in that conduct, as was another employee Walt. Respondent's decision to only attend the affairs of his business on Friday and limited to checking up on financial matters on Sunday or Monday does not excuse him from the implications of the persistent and recurring violations that have been reported in the facts. This was not an isolated incident. This was a series of incidents over a number of months beginning in May, 1991 into August, 1991. Respondent effectively turned the supervision of the business over to Frank Bell and Frank Bell did not exercise his duties in a reasonable and diligent manner and Respondent is accountable for that lack of supervision and absence of reason and diligence on the part of Frank Bell. The violations here were repeated and flagrant. Respondent by his knowledge of the use of marijuana by patrons in the proximity of his bar and in the area of the licensed premises between the back
door on the main bar side and the men's bathroom and by reason that he should have known about other illegal activities has condoned or negligently overlooked those activities while in attendance and while absent from the licensed premises.
Respondent was not obligated to absolutely ensure or be strictly accountable for the violations. However, his attempts at assuring that his business would not be frequented by persons who had in mind the illegal use of controlled substances was woefully inadequate. The instructions given to his employees were not likely to control the circumstance of illegal use of controlled substances. The failure to employ the assistance of law enforcement to rid himself of those persons who would come and go from his business and stand nearby and participate in activities that permeated the inside of the bar with the aroma of marijuana being smoked points to this ineffective response to the problem. It was not enough to invite persons to leave. Respondent should have sought the assistance of law enforcement given the persistent nature of the problem. Failing to do so he tacitly invited the return of that conduct. While not strictly accountable for the violations, there is a pattern of activity here which promotes his accountability. By absenting himself from the business and hoping that Frank Bell would adequately perform his duties as bar manager, Respondent abandoned his responsibility and now suffers the consequences of that choice. No signs were posted reminding patrons of the fact that the owner would not tolerate the use of controlled substance inside the licensed premises proper nor immediately adjacent. Inadequate lighting was placed in the rear of the premises. Better lighting could have been expected to discourage the use of controlled substances.
The area between the back door outside the licensed premises where the main bar is found, leading to the men's bathroom, as well as the bathroom itself are considered part of the licensed premises. There a number of violations took place. In that connection, this case is similar to the case of Freeze v. Department of Business Regulation, 556 So.2d 1204 (Fla. 5 DCA 1990). There the frequent use of controlled substances by patrons on the patio of the premises and the constructive knowledge of that licensee lead to a revocation. Here Respondent has both actual knowledge and constructive knowledge of the use of controlled substances by the patrons in an area behind the bar which is the functional equivalent of the patio area in the Freeze case. A similar result should pertain.
Finally, Respondent argues that penal statutes should be strictly construed and that the majority of actions took place outside of the licensed premises. For that proposition he cites Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 2DCA 1980). That reasoning has been taken into account leading to the conclusion that some of the transactions were outside the purview of the reasonable control of the Respondent. Setting aside those circumstances, the Respondent is still culpable and the appropriate disposition should be a revocation of the license.
Based upon a consideration of the facts found and conclusions of law reached, it is recommended that a final order be entered which revokes license no. 34-00017, Series 1-COP held by the Respondent.
RECOMMENDED this 2nd day of October, 1991, in Tallahassee, Florida.
CHARLES C. ADAMS
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1991.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5349
The following discussion is given concerning the proposed facts of the parties.
Petitioner's Facts
Paragraphs 1-5 are subordinate to facts found.
Paragraph 6 is subordinate to facts found, except with the reference to Billy Willis as being an employee of the Respondent. That reference and others that suggest that Willis was an employee is incorrect.
Paragraphs 7-37 are subordinate to facts found.
Paragraph 38 is subordinate to facts found with the exception that the facts were not presented to show that the odor of burning marijuana was prevalent inside the licensed premises.
Paragraphs 39-47 are subordinate to facts found as is Paragraph 48 with the exception of the proposed fact that Respondent did a "double take when he came out of the men's restroom." That is rejected.
Paragraphs 49-51 are subordinate to facts found. Paragraph 52 is rejected.
Paragraphs 53-57 are not necessary to the resolution of the dispute. Paragraph 58 is subordinate to facts found.
Paragraphs 59 and 60 are not necessary to the resolution of the dispute. Paragraphs 61-63 are subordinate to facts found.
Paragraph 64 is not necessary to the resolution of the dispute. Paragraphs 65-69 are subordinate to facts found.
Paragraph 70 is not necessary to the resolution of the dispute.
Respondent's Facts
Paragraph 1 in the initial sentence is subordinate to facts found. The balance of that paragraph is not necessary to the resolution of the dispute.
As to Paragraph 2 while the 1977 sketch of the licensed premises that was filed with the application did not show the men's bathroom in the same location as it was in 1991, the men's bathroom in 1991 is still considered part of the licensed premises.
Paragraphs 3-11 are subordinate to facts found. Paragraph 12 is rejected.
Paragraph 13 is subordinate to facts found.
Paragraph 14 is rejected in that Chief Osborn described the available lighting behind the licensed premises as moderate.
Paragraphs 15-18 are subordinate to facts found.
Paragraph 19 is rejected in that Respondent indicated that he had some belief that marijuana was used outside the premises on occasion based upon its odor.
Paragraph 20 is subordinate to facts found. Paragraph 21 is rejected.
COPIES FURNISHED:
Nancy C. Waller, Esquire Department of Business
Regulation
725 S. Bronough Street Tallahassee, FL 32399-1007
Donald K. Rudser, Esquire Post Office Drawer 1011 Jasper, FL 32052
Richard W. Scully, Director Division of Alcoholic Beverages
and Tobacco
725 S. Bronough Street Tallahassee, FL 32399-1000
Donald D. Conn, General Counsel Department of Business
Regulation
725 S. Bronough Street Tallahassee, FL 32399-1000
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. 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.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO
DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO,
Petitioner,
vs. DABT CASE NO. IV34900351
DOAH CASE NO. 91-5349
JAMES ROY CREWS, d/b/a LICENSE NO. 34-00017
ROY'S PLACE, SERIES 1-COP
Respondent.
/
FINAL ORDER
COMES NOW, the Director, Division of Alcoholic Beverages and Tobacco and enters his Final Order in the above styled cause pursuant to authority vested by Chapter 120, Florida Statutes.
Respondent has submitted a 52 page document excepting the Recommended Order issued by the Hearing Officer. The exceptions, while not individually numbered, are broken down into nine sections, each of which will be addressed.
Section I: Section I is a recitation of the background of the case and is not a specific exception and is therefore rejected as being without merit.
Section II: Section II reiterates the Recommended Order's Finding of Fact without listing specific exception to those findings and is therefore rejected as being without merit.
Section III: Section III contains suggested additional findings of facts Respondent argues should be included in the findings. There are thirteen paragraphs in Section III and I will address them as if they were numbered.
Paragraph 1: The statement in Paragraph 1 is subordinate to the facts found and is therefore rejected. The Recommended Order already addresses the noise level in Finding of Fact 63 and 86.
Paragraph 2: Paragraph 2 is subordinate to the facts found and is therefore rejected. See Finding of Fact 64-65.
Paragraph 3: Paragraph 3 seems to take exceptions to Finding of Fact numbers 75, 76, 79 and 89 which indicate that upon observing suspicious activity no one called the police. These Findings of Fact are amply supported in the transcript at 57, 75 and 96. Paragraph 3 is therefore rejected.
Paragraph 4: Paragraph 4 is subordinate to Finding of Fact 67 and is therefore rejected.
Paragraph 5: Paragraph 5 is not an exception to the facts found and to the point necessary for resolution of the issues presented is subordinate to the facts found in 4, 6, 11, 12, 15, 20, 25, 26, 34, 36, 43, 45, 50, 52,
56, 61, 66, 74, 83 and Petitioner's Exhibits 3 and 4; Respondent's
Exhibits 2 - 7. Paragraph 5 is therefore rejected.
Paragraph 6: Paragraph 6 is not necessary to a resolution of the issues and is therefore rejected.
Paragraph 7: Paragraph 7 suggests facts that are subordinate to the facts in the Recommended Order at 70, 73 and 75 and is therefore rejected.
Paragraph 8: Paragraph 8 is not supported by the evidence and is therefore rejected.
Paragraph 9: Paragraph 9 is subordinate to Finding of Fact 64 and is therefore rejected.
Paragraph 10: Paragraph 10 is subordinate to Finding of Facts 63, 70, 78,
85, 86 and 88 and is therefore rejected.
Paragraph 11: Paragraph 11 is subordinate to Findings of Fact 85-92. The remainder of paragraph 11 is not necessary to the resolution of the issues presented and is therefore rejected.
Paragraph 12: Paragraph 12 is not necessary to the resolution of the issues presented and is therefore rejected.
Paragraph 13: Paragraph 13 is not necessary to the resolution of the issues presented and is therefore rejected.
Section IV: Section IV addresses specific exceptions to the Findings of Fact contained in the Recommended Order in alphabetical order.
Paragraph A: Finding of Fact 7 is amply supported by the facts produced at trial. Transcript at 1-37, 39 and 40. Paragraph A is therefore rejected.
Paragraph B: Finding of Fact 11 does use the word "pervade" and the officer used the word "prevalent" however the distinction is without substance. Transcript 44. Paragraph B is therefore rejected.
Paragraph C: Finding of Fact 45 is supported by the evidence.
Transcript 105 -107. Paragraph C is therefore rejected.
Paragraph D: The Transcript at 112-113 supports the finding that the individual `who placed the marijuana in the microwave was the bartender.
However it does not support a finding that a "hole needed to be bored into the package." It does support the remainder of Finding of Fact 50. Paragraph D is rejected except as to the above statement.
Paragraph E: The suggested addition to the Findings of Fact concerning Mr. Walker's ejection from the licensed premises is not necessary to the resolution of the issues presented. Paragraph E is therefore rejected.
Section V: Section V is an attempt to reargue the issues presented in Respondent's Proposed Recommended Order. They were not accepted by the Hearing Officer and are rejected here as contrary to the weight of law as cited in the Recommended Order.
Section VI: Section VI is an attempt to reargue the issues presented in Respondent's Proposed Recommended Order. They were not accepted by the Hearing Officer and are rejected here as contrary to the weight of law.
Section VII: The Hearing Officer did in fact address the issues of patron activity in his Recommended Order at 34-38 Section VII is therefore rejected.
Section VIII: Section VIII presents "additional considerations" presented in the form of mitigation. The mitigation presented by Respondent does not overcome the pervasive nature of the illegal activity permitted on the licensed premises. Furthermore, this mitigation was presented to the Hearing Officer who also found it to be of insufficient weight. Section VIII is therefore rejected.
Section IX is a summary of Section's I - VIII which have been addressed above.
The Director has considered Respondents entire 52 page submission and the Division of Alcoholic Beverages and Tobacco adopts the Recommended Order of Charles C. Adams, Hearing Officer, Division of Administrative Hearings, issued on October 2, 1991 with the exception of the portion of Finding of Fact 50 which indicated that a statement was made that "a hole needed to be bored into the package".
ORDER
It is hereby ORDERED that alcoholic beverage license number 34-00017, series 1-COP, is hereby revoked effective fifteen (15) days after service of this Final Order.
DONE AND ORDERED this 11th day of February, 1992.
RICHARD W. SCULLY, DIRECTOR
Division of Alcoholic Beverages and Tobacco
725 South Bronough Street Tallahassee, FL 32399-1020
(904) 488-7891
RIGHT TO APPEAL
This Final Order may be appealed pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure by filing a Notice of Appeal conforming to the requirements of Rule 9.110(d), Florida Rules of Appellate Procedure, both with the appropriate District Court of Appeal and with this agency within 30 days of rendition of this Order, accompanied by the appropriate filing fee.
Copies furnished:
O. Stephen Thacker, Esquire Post Office Box 1808 Clearwater, FL 34617-1808
Nancy C. Waller
Assistant General Counsel Department of Business Regulation
Charles C. Adams, Hearing Officer Division of Administrative Hearings
Michael L. Hawkins, Chief of Law Enforcement Division of Alcoholic Beverages and Tobacco Northern Region
Sgt. Clark Raby, Supervisor
Division of Alcoholic Beverages and Tobacco Live Oak District Office
THIS ORDER SERVED/ISSUED ON BY: DATE:
THE TERMS OF THIS ORDER COMPLIED WITH ON BY THE FOLLOWING TERM(S):
SUPERVISOR
| Issue Date | Proceedings |
|---|---|
| Feb. 21, 1992 | Final Order filed. |
| Oct. 02, 1991 | Recommended Order sent out. CASE CLOSED. Hearing held 8/29/91 & 9/5/91. |
| Sep. 23, 1991 | Response to Petitioner's Motion to Reopen Case filed. (From Donald K.Rudser) |
| Sep. 18, 1991 | Proposed Order with Findings of Fact filed. (From Donald K. Rudser) |
| Sep. 17, 1991 | (Petitioner) Motion to Reopen Case for The Purpose of Offering Additional Evidence (Exhibit A) filed. |
| Sep. 17, 1991 | Petitioners Proposed Recommended Order filed. |
| Sep. 05, 1991 | Motion to Expedite; Subpoena filed. |
| Sep. 05, 1991 | CASE STATUS: Hearing Held. |
| Sep. 03, 1991 | Amended Notice of Hearing sent out. (hearing set for Sept. 3, 1991; 9:00am; Jasper). |
| Aug. 26, 1991 | Agency referral letter; Emergency Order of Suspension; Request for Administrative Hearing, letter form filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 11, 1992 | Agency Final Order | |
| Oct. 02, 1991 | Recommended Order | Drug sales by employees in bar and allowed premises to be used for drug activities by partons and employees. Sale means any form of distribution. |
