STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

vs. ) CASE NO. 92-5404

) RUEBEN McCALL, JR., d/b/a McCALL'S ) CHAMPAGNE LOUNGE, )

)

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 September 11, 1992, in Tampa, Florida.

APPEARANCES

For Petitioner: Thomas A. Klein, Esquire

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

For Respondent: Rueben McCall, Jr., pro se

618 22nd Street South

St. Petersburg, Florida 33712-1761 STATEMENT OF THE ISSUE

Whether or not Respondent's alcoholic beverage license number 62-00231, series 2-COP should be disciplined based on alleged violations of the alcoholic beverage laws as is particularly set forth in the Order to Show Cause and Emergency Order of Suspension filed herein.

PRELIMINARY STATEMENT

By its Order to Show Cause and Emergency Order of Suspension filed herein dated August 28, 1992, Petitioner seeks to revoke Respondent's alcoholic beverage license based on alleged facts which prompted Petitioner to enter an Emergency Order suspending Respondent's beverage license. Respondent challenged the Order to Show Cause and requested an emergency hearing on the Order of Suspension.

At the hearing, Petitioner presented the testimony of Special Agent Bobby Cummings and Officer Tim Brockman. Petitioner introduced Composite Exhibit 1, a series of laboratory analyses, which were received in evidence at the hearing.

Respondent presented the testimony of Thomas Hines, Kathy Burgess, Bonny Bostick, Josephine McCall, Respondent's wife and he testified on his behalf.

The parties submitted proposed recommended orders which were considered in preparation of this Recommended Order. Petitioner's proposed recommended order is substantially adopted in this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix.

Respondent proposed recommendation is in the nature of a letter citing numerous health and related physical and personal problems which do not lend themselves to specific rulings as proposed findings of fact. His recommendation was, however, considered.

FINDINGS OF FACT

1. Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco is the state agency charged with regulating the alcohol beverage and tobacco laws in Florida.

   
   

2. Respondent, Rueben McCall, Jr., d/b/a McCall's Champagne Lounge, is the holder of alcoholic beverage license number 62-00231, series 2-COP, for a licensed premises known as McCall's Champagne Lounge which is located at 618 22nd Street South, St. Petersburg, Pinellas County, Florida.

   
   

3. On or about February 11, 1992, Officer T. Brockman of the St. Petersburg Police Department (SPPD) met with Respondent as licensee to discuss illegal activities which were ongoing in and around his licensed premises. Officer Brockman notified Respondent that controlled substances were being sold in and about the licensed premises and that underaged persons were being permitted to consume alcoholic beverages. Respondent was also notified of other illegal activities including weapons and firearms violations which were occurring on Friday and Saturday nights.

   
   

4. On or about July 26, 1992, the Division's Special Agent, Cummings and other undercover law enforcement agents went to Respondent's premises as part of an ongoing narcotics investigation. While inside the premises, Cummings met a patron known as "Andy Griffin" regarding the purchase of marijuana. As a result of that meeting, Special Agent Cummings handed Andy Griffin $10.00 in exchange for a small plastic bag containing marijuana. The substance purchased was laboratory analyzed and found to be marijuana. At the time, two employees were located a few feet away from the site where the marijuana was delivered. At the time, several patrons were also openly consuming and selling controlled substances in the presence of Respondent and his employees.

   
   

5. On or about July 31, 1992, Cummings again reentered the licensed premises with other undercover law enforcement agents in furtherance of their investigation. While inside the premises, Special Agent Cummings met with an unknown patron regarding the purchase of "crack" cocaine. Subsequently Special Agent Cummings handed the unknown patron $10.00 in exchange for a small quantity of a substance which was analyzed and found to be cocaine. This transaction took place in plain view at the bar in the presence of Respondent and several employees. At the time, several patrons inside the premises were openly smoking marijuana in the presence of Respondent and his employees.

   
   

6. On August 1, 5, 7, 8, 11, 12 and 15, Special Agent Cummings and other law enforcement agents reentered the licensed premises as part of their ongoing narcotics investigation. While inside the premises, on each ocassion except August 8, Special Agent Cummings purchased narcotics for $10.00. On each occasion the substance purchased by Special Agent Cummings was laboratory analyzed and found to be marijuana. During the August 8, 1992 visit by Special

   Agent Cummings and the other law enforcement agents, several patrons were observed openly consuming marijuana in the presence of Respondent and several employees. At no time did Respondent or his employees make efforts to prevent that activity from occurring inside the licensed premises. On each occasion while in the premises, Special Agent Cummings observed several patrons openly consuming and selling controlled substances in the presence of employees.

   
   

7. At the outset of the narcotics investigation, Officer Tim Brockman met with Respondent and advised him that he was a community police officer who was on call and would be walking the "beat" in and around the licensed premises. Officer Brockman made it known to Respondent that he was there to improve the quality of life and that he would be in contact with community leaders to try to get a handle on the extensive criminal activity which appeared to be ongoing in and around the licensed premises. As part of their efforts, Officer Brockman tried to develop a crime watch as the community residents felt threatened by the extensive criminal activity ongoing in and around the licensed premises.

   Officer Brockman advised Respondent that their primary goal would be to try to rid the area of drug sales. Respondent was specifically advised of the extensive drug activities that were ongoing both inside and outside of the licensed premises. Respondent's cooperation and assistance was requested by Officer Brockman and be agreed to assist. Officer Brockman made it known to Respondent that loitering was a problem outside the building and that alcoholic sales were being made in the building to minors. Finally, Officer Brockman told Respondent that he had observed patrons purchasing alcoholic beverages in the bar and who would later bring the open containers outside into the parking areas in and around the building in apparent violations of the local ordinances.

   
   

8. Officer Brockman analyzed the phone calls which had been logged through the St. Petersburg Police Departments switchboard from the lounge and for law enforcement assistance in that area. The number of calls to Respondent's lounge greatly exceed the number of calls for law enforcement assistance in other areas of the City.

   
   

9. Josephine McCall, Respondent's wife, denies that she ever saw drugs in the licensed premises. Ms. McCall maintains that Respondent would "come home sick as he could not stand the smell of marijuana."

   
   

10. Thomas E. Hines, is a patron who occasionally frequents the bar during the early evening hours. During the times that he has frequented the club, he has not witnessed ellicit drugs being sold in the area nor would he recognize "reefer" if he saw it.

    
    

11. Kathy Burgess has been a barmaid at Respondent's lounge in excess of thirteen years. Ms. Burgess contends that Respondent did not allow drug sales to occur and that if such sales were made, she told employees to "get them out of the premises."

    
    

12. Bonny Bostick serves as a janitor at Respondent's lounge and works on the admissions door on Friday and Saturday nights. Bostick recalls having to get Respondent to curtail drug activities on four or five occasions. 0/ To the extent that the testimony of Respondent and witnesses J. McCall, T. Hines, K. Burgess and B. Bostick is in conflict with that of Officers Cummings and Brockman, their testimony is not credible. The testimony of Officers Cummings and Brockman is more credible and is more worthy of belief as they had no interest in the outcome of the proceedings.

13. At all times throughout the investigation, Respondent was in the licensed premises while the illegal activities referred to herein were taking place. Respondent's employees either ignored or overlooked illegal activities as it was occurring inside the licensed premises.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to subsection 120.57(1), Florida Statutes.

    
    

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

    
    

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

    
    

17. Section 561.29(1), Florida Statutes authorizes the Division of Alcoholic Beverages and Tobacco to revoke or suspend a beverage license upon a showing of:

    
    

    1. Violation of the licensee or his or its agents, officers, servants, or employees on the licensed premises...of any of the laws of the state or of the United States,...or permitting another on the licensed premises to violate any of the laws of this state or of the United States,....

    2. Violation by the licensee or, if a corporation, by any officers thereof, of any laws of this state or any state or territory of the United States.

       
       

18. Any store, shop or building which is visited by persons for the purpose of unlawfully using any controlled substance under Chapter 893 or which is used for the illegal keeping, selling or delivery of the same is deemed to be a public nuisance. Section 823.10, Florida Statutes.

    
    

19. Section 893.13(2)(a)5, Florida Statutes, makes it unlawful to keep or maintain any store, shop, warehouse, dwelling or building which is resorted to by persons using controlled substances in violation of Chapter 893, Florida Statutes.

    
    

20. Section 561.29(1)(c), Florida Statutes subjects an alcoholic beverage license to suspension or revocation where there is maintained a nuisance on the licensed premises.

    
    

21. An alcoholic beverage license may be revoked, regardless of the intent of the licensee, where the licensee knew of violations of the beverage law or where the licensee's own negligence or lack of diligence of supervising and maintaining surveillance of the premises results in violations of the law. See Pauline V. Lee, 147 So.2d 359, 364 (Fla. 2nd DCA 1962). Here the evidence demonstrates, clearly and convincingly, that Respondent either fostered, condoned or negligently overlooked trafficking in and illegal use of narcotics in the licensed premises. Based thereon, Respondent engaged in conduct proscribed by Section 893.13, Florida Statutes.

22. Respondent's licensed premises are maintained in such a manner as to constitute a nuisance within the meaning of Section 823.10 and subsection 561.29(1)(c), Florida Statutes.

    
    

23. Section 893.13(1)(a), Florida Statutes provides that it is unlawful for a person to sell or deliver any controlled substance in violation of Chapter 893, Florida Statutes. Here all of the aforementioned substances purchased or delivered on the licensed premises were controlled substances.

    
    

24. Section 561.58, Florida Statutes provides that the Division, upon revoking an alcoholic beverage license, may prohibit any other alcoholic beverage license from being issued at the same location.

RECOMMENDATION

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

Petitioner enter a Final Order prevailing that Respondent, Rueben McCall, Jr., d/b/a McCall Champagne Lounge, license number 62-00231, series 2-COP be revoked. It is further recommended that this location be deemed ineligible for having an alcoholic beverage license issued for the maximum period allowable under the alcoholic beverage law.

DONE and ENTERED this 4th day of November, 1992 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 4th day of November, 1992.

ENDNOTE

0/ To the extent that the testimony of Respondent and witnesses J. McCall, T. Hines, K. Burgess and B. Bostick is in conflict with that of Officers Cummings and Brockman, their testimony is not credited. The testimony of Officers Cummings and Brockman is more credible and is more worthy of belief as they had no interest in the outcome of the proceedings.

APPENDIX

Rulings on Petitioner's Proposed Findings of Fact:

Paragraphs 5-11, adopted as modified, Paragraph 6, Recommended Order.

Paragraph 12, adopted as modified, Paragraph 8, Recommended Order.

COPIES FURNISHED:

Richard W. Scully, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32399-1000

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

Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Rueben McCall, Jr. 618 22nd Street South

St. Petersburg, Florida 33712-1761

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: 92-005404

Orders for Case No: 92-005404