STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

v. ) CASE NO. 92-3333

) WILLIE MARION WARE, d/b/a SILVER SHADOW, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 28, 1992, in New Smyrna Beach, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Monica Atkins White

Assistant General Counsel Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Reginald Moore

Attorney at Law

Post Office Box 1848

Daytona Beach, Florida 32115-1848 STATEMENT OF ISSUES

The issue is whether License No. 74-00564 issued to Respondent, Willie Marion Ware d/b/a Silver Shadow (Licensee), should be revoked or otherwise penalized based on the acts alleged in the Notice to Show Cause as amended.

PRELIMINARY STATEMENT

The Notice to Show cause dated March 10, 1992, charges Licensee with four counts, but at hearing Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT), amended the Notice to Show Cause by condensing the charges into two counts as follows:

1. One count alleging Licensee continues to employ his brother, Earl M. Ware, a person known to Licensee to be a convicted felon having been so convicted within the last five years of multiple felony narcotics charges, contrary to Section 562.13(3)(a), Florida Statutes, as contained in Section 561.29.

2. A second count alleging Licensee continues to operate, maintain, foster and condone a premises which tends to be a nuisance, contrary to Sections 823.01, 832.05, 823.10, and 893.03, as contained in Section 561.29, Florida Statutes.

Additionally, Official Recognition was granted for certified copies of the Notice to Show Cause and Final Order in DBR Case No. AY74870121, a case involving similar charges against Licensee.

DABT presented the testimony of Jimmy Edward Powell, Richard Boltz, Edward Bowman, Cornell Brown, William G. Piser, Marcus L. Moore, and Leigh Matusick.

DABT Exhibits 1-7 were admitted into evidence.

Licensee presented his own testimony and offered no exhibits.

The parties waived the filing of a transcript and agreed to file proposed findings of fact and conclusions of law on September 8, 1992. DABT filed its proposed order late on September 9, 1992. Licensee filed no proposed order.

Licensee has not filed any objection to consideration of DABT's late-filed proposed order. DABT's proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. At all times relevant and material to this proceeding, the Respondent, Willie Marion Ware (Licensee), held license number 74-00564, series 2-COP, authorizing him to sell alcoholic beverages on the premises doing business as Silver Shadow, located at 918 S. Adelle, Deland, Volusia County, Florida (the premises).

   
   

2. Between the dates of July 1, 1989, and October 30, 1991, the Licensee's brother, Earl M. Ware (a/k/a Joe or Little Joe), was a convicted felon.

   
   

3. The Licensee's brother, Earl M. Ware, was convicted less than five years ago for selling cocaine inside the licensed premises.

   
   

4. The Licensee fully knew that his brother, Earl M. Ware, was and is a convicted felon who is prohibited from being employed as person in charge, bartender, or manager.

   
   

5. Contrary to agreements made by Licensee in a previous case with this same charge and despite notice by Deputy Bowman, Licensee has continued to employ his brother, Earl M. Ware, as a person in charge, bartender or manager.

   
   

6. At various times relevant to this proceeding, the Licensee's brother, Earl M. Ware, possessed keys to enter the premises and open the locked door to the premises and he opened the premises to the public without any supervision by Licensee or by any other employees.

   
   

7. Earl M. Ware worked inside the premises when there were no other employees or the Licensee present inside the premises.

   
   

8. In fact, Earl M. Ware was the only person in charge for extended periods of time, particularly on Sundays.

9. The Licensee's brother, Earl M. Ware, worked behind the bar, asked clients what they wanted to drink, retrieved the alcoholic beverage orders, served those alcoholic beverages to clients, charged clients for those alcoholic beverages, and took money from clients for those alcoholic beverages.

   
   

10. Between July 1, 1989, and October 30, 1991, the licensed premises were a continuing nuisance.

    
    

11. Complaints regarding or involving the premises and its parking lot owned by Licensee were more than double those of the other two licensed premises located within 5 blocks of Licensee's premises.

    
    

12. The complaints ranged from possession of drug paraphernalia and sale of narcotics, to armed robbery and attempted murders of law enforcement officers.

    
    

13. Deputy Brown, in particular, testified that he purchased crack cocaine right at the front door of the premises.

    
    

14. Deputy Brown also observed numerous narcotics transactions taking place inside the premises, while Licensee was inside the premises.

    
    

15. Deputy Brown also made several purchases of cocaine in the parking lot of the Silver Shadow when the dealer advised that he was not holding the drugs and he then went inside the Silver Shadow to retrieve the drugs to be sold.

    
    

16. Deputy Boltz removed two males under age 21 from the bathroom of the Silver Shadow, one of whom had a gun in his pocket.

    
    

17. Deputy Bowman followed up on a complaint by a man who said he was beaten and robbed in the Silver Shadow. Deputy Bowman was advised by "Joe" that a fight occurred and that he had broken it up. The shoe missing from the complainant's foot was found by Bowman in the back corner of the bathroom.

    
    

18. Deputy Bowman notified Licensee several times between the dates of July 1, 1989, and October 30, 1991, that the premises was fostering illegal activity, particularly narcotics activity.

    
    

19. Every deputy who testified identified multiple occasions when he found containers of cocaine, bags with drug residual, and drug paraphernalia on the premises. They also each smelled marijuana and crack cocaine being smoked on the premises.

    
    

20. Licensee was made aware of the incidents and told the law enforcement officers that he couldn't check or control the use of drugs on the premises.

    
    

21. The Licensee never contacted the Sheriff's Office and never asked any of the deputy sheriff's specifically assigned to work the area to come inside his premises to enforce any criminal laws. Licensee did not contact the police when he knew that a criminal was hiding the gun used in an attempted murder of a police officer inside the premises.

    
    

22. The Licensee denied ever speaking with Deputy Bowman regarding the continued illegal activity inside the premises. According to the Licensee, there is no illegal activity taking place inside the premises. This testimony is simply not worthy of belief.

23. While the Licensee did attend community meetings and did place no trespassing signs in the adjoining parking lot, he had never asked any law enforcement officer to remove anyone from his premises.

    
    

24. The Licensee acknowledged that he did not feel it was his duty to police his premises and identify persons who are engaging in illegal activity to the law enforcement authorities. According to the Licensee, that was the job of the police, and not his responsibility.

    
    

25. In DABT Case No. AY74870121, Licensee's license was suspended and fined for multiple instances of the sale of crack cocaine on the premises by Earl M. Ware and for keeping an establishment used by persons using controlled substances and thereby deemed a public nuisance. The Final Order in that case was entered on May 25, 1989. In that proceeding, Licensee made various assurances regarding the exclusion of Earl M. Ware from the premises and the implementation of various devices meant to discourage and prevent any sale and use of drugs on the premises. Despite that Final Order and the terms thereof, the proof in this case shows that these same violations continued from July 1, 1989, to November 1, 1991, without cease.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

27. Section 561.29(1)(a), Florida Statutes, authorizes DABT to revoke or suspend the beverage license of a licensee, or his agents, officers, servants, or employees, for violation on the licensed premises of any of the laws of Florida or of the United States.

    
    

28. Section 561.29(1)(c) authorizes the same penalties for maintaining a nuisance on the licensed premises.

    
    

29. Section 562.13(3)(a), Florida Statutes, makes it unlawful for any licensee to employ as a manager, person in charge or bartender any person who has been convicted of any felony within the State of Florida or any felony violation of Chapter 893, Florida Statutes.

    
    

30. Section 893.10, Florida Statutes, declares that any store, shop, or building which is visited by persons for the purpose of unlawfully using any substance controlled under that chapter or which is used for the illegal keeping, selling or delivery of the same is deemed a public nuisance.

    
    

31. Section 893.13(2)(a) makes it unlawful to keep or maintain any store, shop or building which is resorted to by persons using controlled substances in violation of that chapter.

    
    

32. Finally, Section 823.05 makes it unlawful to own, continue or maintain any place where any law of the state is violated.

    
    

33. The facts set forth hereinabove demonstrate by clear and convincing evidence that the Licensee has fostered, condoned, and/or negligently overlooked the possession, sale and use of illegal narcotics and controlled substances on or about the licensed premises and has failed to exercise due diligence in supervising and managing his licensed premises so as to prevent the illegal possession, sale and use of illegal narcotics and controlled substances in and

    about the licensed premises in violation of Chapter 893, specifically Sections

    893.13. Such activity has continued from the last time the Licensee was adjudicated culpable for this violation and will continue.

    
    

34. It is further concluded that the premises constitutes an open and notorious gathering place for those predisposed to using, dealing in, and delivering controlled substances prohibited by Chapter 893. In fact, the premises also constitutes an open and notorious gathering place for those predisposed to committing other types of illegal activities, including the Licensee's own illegal activity of employing a convicted felon as a person in charge, bartender, or manager, activities prohibited in Sections 561.29(1)(c), and 823.10. The premises are a nuisance.

    
    

35. Whether Licensee's brother, Earl M. Ware, was employed as a person in charge, manager, or bartender, is a question of material fact to be determined by the fact finder in a case by case basis. Goldie v. Dillon, 140 So.2d 81 (Fla. 2nd DCA 1962); Jaworski v. City of Opa Locka, 170 So.2d 484 (Fla. 3rd DCA 1964); and Burns v. Sams, 458 So.2d 359 (Fla. 1st DCA 1984). Although most cases dealing with the definition of employee involve liability for the acts of an "employee," the analysis applies in this situation. "A person who voluntarily assists in the work of another with his consent may become a servant of the letter and that consent need not be expressed, but may be implied."

    Burns supra at 360.. A master-servant employment relationship may arise by implication whenever a person renders assistance upon the occasion, without pay, if the master does not object to the employment services being rendered by this volunteer. Goldie supra at 85. For example, a grandfather who filled gas tanks and "stepped in" for the owner without receiving any pay for his services, was an employee. See McEvoy v. Union Oil Company, 552 So.2d 1169. (Fla. 3rd DCA 1989).

    
    

36. Licensee's brother, Earl M. Ware, a convicted felon, was employed by Licensee as a person in charge, bartender or manager, contrary to Section 562.13(3)(a). The most compelling evidence was that the Licensee's brother was observed over and over again in possession of the keys to the Licensee's premises, and was observed opening the premises for public, and serving the public, without any other employee or licensee being present.

    
    

37. The law requires that the Licensee actively put a stop to this violation, however, from the testimony of the officers, and from observing the Licensee's own demeanor, there is no indication that this employment relationship will ever cease, and there is every indication to believe that the Licensee's brother will continue in the same employment capacity within the premises.

    
    

38. This is a case that is unique as to penalty, because of this Licensee's prior history of this same kind of violation, and because of the Licensee's failure to prevent its continuation, even though the last time a substantial suspension and penalty was imposed. The standard penalty guideline will not apply for persistent, repeated, recurring, knowing and willful violations.

    
    

39. The unique facts of this case and the clear guilt of the Licensee on both counts require that the Licensee pay the ultimate penalty of revocation.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business Regulation, Division of

Alcoholic Beverages and Tobacco enter a Final Order and therein:

1. Find that the Licensee, Willie Marion Ware, is guilty of the first count of employing a convicted felon.

   
   

2. Find that the Licensee is guilty of the second count of maintaining a nuisance.

   
   

3. Find that the previous conviction history of this Licensee for similar offenses is a sufficient aggravating factor to exceed the penalty guidelines

   
   

4. Revoke license No. 74-00564, Series 2-COP, issued to Willie Marion Ware d/b/a Silver Shadow.

DONE and ENTERED this 29th day of September, 1992, in Tallahassee, Florida.

DIANE K. KIESLING

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 29th day of September, 1992.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3333

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, DABT

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-6(1-6); 7-10(6-9); 11-16(9-14); 17(18); and 18-22(21-24).

COPIES FURNISHED:

Richard W. Scully, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, FL 32399-1000

Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000

Monica Atkins White Assistant General Counsel

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

Reginald Moore Attorney at Law

Post Office Box 1848

Daytona Beach, FL 32115-1848

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: 92-003333

Orders for Case No: 92-003333