STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

vs. ) CASE No. 92-4319

)

HORACE CLARE, d/b/a )

CAMPBELL'S RESTAURANT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on November 18, 1992, in Haines City, Florida.

APPEARANCES

For Petitioner: Nancy C. Waller, Esquire

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

For Respondent: Horace Clare, pro se

Campbell's Restaurant 1305 North 11th Street

Haines City, Florida 33844 STATEMENT OF THE ISSUES

Whether Respondent's alcoholic beverage license should be suspended or otherwise disciplined based on the Notice to Show Cause filed herein.

PRELIMINARY STATEMENT

On May 19, 1992, Petitioner, Department of Business Regulation, Division Alcoholic Beverages and Tobacco, entered a Notice to Show Cause against Respondent's alcoholic beverage license #63-01368, series 2-COP alleging that Respondent engaged in misconduct.

Respondent requested a formal hearing pursuant to Section 120.57(1), Florida Statutes, and denied the allegations.

At the hearing, Petitioner presented the testimony of special agent Randy West, Division of Alcoholic Beverages and Tobacco, Sgt. Sandra Spicer, Haines City Police Department, a confidential informant, Sgt. Arlis Roberts, Haines City Police Department, Patrolman Randy Alexander, Haines City Police

Department, Patrolman Mervin Stewart, Haines City Police Department, Deputy Ken Power, Polk County Sheriff's Office, Barbara Vohlken, chemist, Florida Department of Law Enforcement. Petitioner introduced 17 exhibits which were received in evidence at the hearing. Respondent testified on his behalf and introduced no documentary evidence.

Petitioner filed a proposed recommended order which is substantially incorporated in this Recommended Order. Respondent filed a letter which is regarded as a statement of position. Respondent's statement acknowledges that there were unlawful incidents occurring at the licensed premises but that he was not present as he was engaged in other employment. Respondent's request for probation was considered and rejected due to the seriousness of the conduct at the licensed premises.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Horace Clare, was the holder of alcohol beverage license #63-01368, series 2-COP, for the licensed premises known as Campbell's Restaurant situated at 1305 North 11th Street, Haines City, Polk County, Florida.

   
   

2. Petitioner used an undercover agent, C.I., who was directed to attempt to purchase controlled substances from the licensed premises.

   
   

3. On January 24, 1992, at approximately 7:35 p.m., C.I. contacted an individual to ascertain if "weed" was available to purchase at the licensed premises.

   
   

4. Sgt. Spicer of the Haines City Police Department was assigned to insure that the confidential informant, "Snoops" was under constant eye surveillance. Spicer was given $20 by the Haines City Police Department while under the surveillance of Sgt. Spicer. Spicer searched the C.I.'s person and insured that the C.I. was not given any additional monies. The C.I. entered the licensed premises and was introduced to a woman whose nickname was "Snoops", later known as Mary Allen. The C.I. went directly to the kitchen and tendered Snoops the

   $20 dollar bill she was given by Spicer. Snoops went into the kitchen area and returned with a small packet of marijuana in exchange for the $20 dollar bill. The C.I. left the licensed premises and returned to the area of Officer Alexander of the Haines City Police Department. The C.I. was again searched and possessed only the marijuana which she gave to Spicer.

   
   

5. On January 25, 1992 at approximately 7:17 p.m., the confidential informant again met with Sergeant Spicer for the purpose of making a controlled purchase of marijuana. Sergeant Spicer searched and observed the confidential informant in the same manner as she had on the evening of January 24, 1992. Spicer gave the C.I. $20.00 and watched the C.I. from her vehicle until she entered the licensed premises. The C.I. contacted Snoops, tendered her $20.00 whereupon Snoops went into the kitchen area and returned with a small packet of marijuana which she retrieved from her purse. Snoops exchanged the marijuana for the $20.00 that the C.I. had given her. The C.I. left the licensed premises and immediately contacted Sergeant Spicer whereupon she tendered the marijuana to her.

   
   

6. On or about January 26, 1992 at approximately 6:53 p.m., the confidential informant again met with Sergeant Spicer of the Haines City Police Department. She was searched to determine if she had any controlled substances on her person and also to ascertain that she had no additional monies. Sergeant

   Spicer again gave the C.I. $20.00 for the purpose of making a controlled purchase of marijuana from the licensed premises. Upon entering the licensed premises, the C.I. met with Respondent and handed him $20.00. Respondent reached under the cash register and retrieved a small packet of marijuana from a brown bag which he then gave to the C.I. The C.I. left the licensed premises and turned the marijuana over to Sergeant Spicer. The C.I. described Respondent and identified him at the hearing.

   
   

7. Sergeant Spicer next directed Officer Mervin Stewart to go to the licensed premises and ascertain the identity of Respondent. Officer Stewart, as directed, encountered Respondent and asked him for identification. Respondent identified himself to officer Stewart as the owner of the licensed premises.

   
   

8. On January 29, 1992, the Haines City Police Department executed a search warrant at the licensed premises with the assistance of the Polk County Sheriff's Office. An employee named Mary Allen a/k/a "Snoops" was present during the search. The search resulted in the discovery of 21 packets of marijuana, five packets of rolling papers and three packets of cocaine and several "baggies". In addition, several containers of money were found as well as $120.00 that was found in the wicker purse with the marijuana. A narcotics dog assisted in the search of the licensed premises for the presence of controlled substances. The narcotics dog alerted to the presence of a controlled substance in an envelope containing money from the licensed premises evidencing that the subject money had been in contact with controlled substances.

   
   

9. Each of the packets purchased by the C.I. were tested with a presumptive field test by Sergeant Spicer. Each packet tested positive for the presence of marijuana. Likewise, each packet had the odor, appearance and packaging common to marijuana. Each packet was sent to the Florida Department of Law Enforcement for analysis and each packet tested positive for marijuana, a controlled substance.

   
   

10. Likewise, the cocaine from the licensed premises also field tested positive for the presence of cocaine and upon subsequent laboratory analysis, tested positive for cocaine.

    
    

11. Rolling papers are commonly used to roll marijuana cigarettes or loose tobacco cigarettes. No loose tobacco was found on the licensed premises. The empty baggies seized in the house and the licensed premises were identical to those used to package marijuana. Consequently, the rolling papers and the baggies are drug paraphernalia.

    
    

12. The licensed premises is 651 feet and 8 inches from the Bethune Elementary School in Haines City.

    
    

13. A consensual seal search was conducted of Respondent's home which was shared by Mary Allen. That search resulted in the seizure of fifty packets of marijuana, a number of empty baggies and a scale. The marijuana was located in the master bedroom.

    
    

14. Respondent has lived with Mary Allen for ten years.

    
    

15. At the hearing, Respondent also acknowledged that he lived with and worked with Mary Allen whose nickname is "Snoops".

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Subsection 120.57(1),

    
    

17. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

18. The authority of the Petitioner is derived from Chapter 561, Florida Statutes.

    
    

19. Section 561.29, Florida Statutes, subjects an alcoholic beverage license to revocation, suspension or the imposition of a civil penalty when the licensee, his agents, officers, servants violates the laws of Florida, the United States or specific local regulations or permits disorderly conduct or permits another to violate any of the laws of Florida or the United States. That section further permits the imposition of penalties for maintaining a nuisance on the licensed premises.

    
    

20. Section 893.13(1)(a), Florida Statutes proscribes the sale, purchase, manufacture, delivery or possession with the intent to sell, purchase, manufacture or deliver a controlled substance.

    
    

21. Section 893.13(1)(e), Florida Statutes, proscribes the sale, purchase, manufacture or delivery or to possess with the intent to sell, purchase, manufacture, or deliver a controlled substance in, on, or within 1,000 feet of real property comprising a public or private elementary, middle or secondary school.

    
    

22. Section 893.147, Florida Statutes proscribes the use, or the possession with the intent to use, drug paraphernalia. Drug paraphernalia is defined in Section 893.145, Florida Statutes as:

    
    

    all equipment, products and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body, a controlled substance in violation of this chapter.

    
    

23. Cocaine is a controlled substance under Chapter 893, Florida Statutes.

    
    

24. Marijuana is a controlled substance under Chapter 893, Florida Statutes.

    
    

25. Petitioner presented clear and convincing evidence that the licensee, Horace Clare, participated in the sale of controlled substances from his licensed premises. Here, the evidence reveals that Respondent, in addition to permitting his employees to engage in the sale and delivery of controlled substances, also made a sale to a confidential informant.

26. Respondent's sale of controlled substances and the keeping of same in the licensed premises constitutes a nuisance. Likewise, such sales occurred within 1000 feet of an elementary school. Such conduct is violative of Subsection 893.13(1)(e), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

Petitioner enter a final order revoking Respondent's alcoholic beverage license at the licensed premises, to wit, Horace Clare, d/b/a Campbell's Restaurant, license number 63-01368, Series 2-COP.

DONE and ORDERED this 11th day of January, 1993, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 11th day of January, 1993.

COPIES FURNISHED:

NANCY C WALLER ESQ ASST GENERAL COUNSEL

DEPT OF BUSINESS REGULATION 725 S BRONOUGH ST TALLAHASSEE FL 32399 1007

HORACE CLARE CAMPBELL'S RESTAURANT 1305 N 11TH ST

HAINES CITY FL 33844

RICHARD W SCULLY DIRECTOR DIVISION OF HOTELS & RESTAURANTS 725 S BRONOUGH ST

TALLAHASSEE FL 32399 1007

DONALD D CONN ESQ GENERAL COUNSEL

DEPT OF BUSINESS REGULATION 725 S BRONOUGH ST TALLAHASSEE FL 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: 92-004319

Orders for Case No: 92-004319