Pursuant to notice, an administrative hearing was held before William A. Buzzett, Administrative Law Judge with the Division of Administrative Hearings, on September 26, 1996, in Marianna, Florida.
Whether controlled substances were possessed, sold, or used at the Jolly Spot Lounge and, if so, whether the owner's
alcoholic beverage license should be revoked or whether he should be otherwise disciplined.
On August 2, 1996, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Department)issued an Emergency Order of Suspension for Alcoholic Beverage License No. 76-00016, Series 2-COP, held by the Respondent, Lawrence C. Whitehead (Whitehead). The Department also issued an Order to Show Cause. In the Order to Show Cause, the Department notified Whitehead of his right to an administrative hearing of the allegations. Thereafter, Whitehead timely filed a request for a hearing, and the case was forwarded to the Division of Administrative Hearings. This cause was later assigned to the undersigned administrative law judge for adjudication, and a hearing was scheduled for August 13, 1996. After granting an uncontested Motion for Continuance, the matter proceeded to formal hearing on September 27, 1996 in Marianna, Jackson County, Florida. The hearing was scheduled for 9:15 A.M. (CST). By 10:15 a.m., Whitehead had not appeared. Soon thereafter, the undersigned determined that Whitehead would not appear at the hearing, and the hearing went on as scheduled. At no time during the hearing did Whitehead or a representative for Whitehead appear at the hearing.1
At the hearing, the Department presented the testimony of six witnesses including Lt. Rodney Russ, District Supervisor,
Division of Alcoholic Beverages and Tobacco; Investigator James Lorenz, Walton County Sheriff’s Department; Confidential Informant Pat; Investigative Aide Tracy Kent; Special Agent Fred Miller; and Investigative Aide Beverly A. Causey. The Department offered nine exhibits that were entered into evidence. At the end of the hearing, the Department requested and the undersigned granted a Motion to Continue the hearing for the sole purpose of deposing and perpetuating the testimony of two additional witnesses who were unable to attend the hearing: FDLE Criminologists Teresa Pribbenow and Donald Walker. Mr. Whitehead was noticed for the depositions, but neither he nor his representative attended.
The Department elected not to transcribe the proceedings.
At the hearing, the Department requested the right to file proposed findings of fact and conclusions of law in the form of a Proposed Recommended Order. The proposed recommended order of the Department was received and considered. Whitehead did not file a proposed recommended order.
Based upon the testimony of the witnesses and documentary evidence received at the hearing, in addition to the testimony found in the above-referenced depositions, the following findings of fact are made:
The Petitioner is the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Department).
The Respondent is Lawrence C. Whitehead, (Whitehead), d/b/a/ the Jolly Spot Lounge located at 508 East Nelson Avenue, DeFuniak Springs, Walton County, Florida. At all times pertinent to the instant matter, Whitehead operated the Jolly Spot Lounge where alcoholic beverages were sold under Alcoholic Beverage License No. 76-00016, Series 2-COP.
During the spring and summer of 1996, Whitehead was the subject of an undercover investigation regarding allegations of narcotic sales at the Jolly Spot Lounge.
During the course of the investigation, Investigator James Lorenz of the Walton County Sheriff’s Department and other law enforcement officers met with a confidential source for the purpose of investigating complaints of narcotic sales at the Jolly Spot Lounge. The confidential source was instructed by the law enforcement officers to attempt to purchase narcotics at the licensed premises. At all time pertinent to the investigation, the confidential source was searched before the investigation to confirm that she had no contraband on her person. After each of the narcotic sales, the confidential source would rejoin the law enforcement officers where she would surrender the purchased cocaine.
On eight separate occasions (May 7, 1996; May 24, 1996; May 24, 1996; May 31, 1996; May 31, 1996; June 7, 1996; July 27, 1996; and July 28, 1996) undercover police officers, confidential informants under the direct supervision and direction of law enforcement officers, or investigators entered the licensed
premises in an attempt to purchase cocaine from employees or patrons. On each occasion, the officers, the informants, or the investigators were able to consummate a drug deal and purchase some form of cocaine.
On May 7, 1996, the confidential source entered the Jolly Spot Lounge and met with a person identified as Ernest Whitehead (E. Whitehead). E. Whitehead was tending bar, and he told the confidential source that he was the manager. E. Whitehead and the confidential source discussed the purchase of crack cocaine and subsequently, E. Whitehead sold the confidential source crack cocaine in exchange for twenty dollars. Both the conversation and the narcotics transaction occurred in an open manner without any attempt to conceal the subject matter of the conversation or the transaction. The substance purchased from E. Whitehead was later analyzed at the Florida Department of Law Enforcement (FDLE) laboratory and determined to be cocaine.
On May 24, 1996, a confidential source drove to the Jolly Spot Lounge, and while in the parking lot she was approached by a person identified as Darrell Guice. The confidential source and Guice engaged in a conversation regarding the purchase of narcotics. Subsequently, Guice entered the Jolly Spot Lounge and immediately returned with crack cocaine. The cocaine was sold to the confidential informant in exchange for twenty dollars. The conversation and the narcotics transaction occurred in an open manner without any attempt to conceal the subject matter of the conversation or the transaction. The
substance purchased on this occasion was later analyzed by the FDLE laboratory and determined to be cocaine.
Later on May 24, 1996, the confidential source, returned to the Jolly Spot Lounge. While in the parking lot, E. Whitehead exited the Jolly Spot Lounge and approached the confidential source's vehicle. The confidential source and E. Whitehead engaged in a conversation regarding the purchase of one hundred dollars' worth of cocaine. E. Whitehead then sold the confidential source five pieces of crack cocaine in exchange for the bargained price. The conversations and the narcotics transaction occurred in an open manner without any attempt to conceal the subject matter of the conversation or the transaction. The substance purchased on this occasion was later analyzed by the FDLE laboratory and determined to be cocaine.
On May 31, 1996, the confidential source returned to the Jolly Spot Lounge, and similar to past episodes, E. Whitehead exited the Jolly Spot Lounge and approached the confidential source’s vehicle. The confidential source and E. Whitehead engaged in a conversation regarding the purchase of fifty dollars worth of cocaine. Soon thereafter, E. Whitehead sold the confidential source three pieces of crack cocaine. The conversation and the narcotics transaction occurred in an open manner without any attempt to conceal the subject matter of the conversation or the transaction. The substance purchased on this occasion was later analyzed by the FDLE laboratory and determined to be cocaine.
Later on May 31, 1996, the confidential source returned in a vehicle and parked in a parking lot immediately across the street from the Jolly Spot Lounge. E. Whitehead exited the Jolly Spot Lounge and spoke with the confidential informant regarding the purchase of cocaine. E. Whitehead reentered the Jolly Spot Lounge and shortly thereafter, Donald Whitehead exited the Jolly Spot Lounge and delivered seven pieces of cocaine to the confidential source. After the transaction was completed, Donald Whitehead returned to the Jolly Spot Lounge. The conversation and the narcotics transaction occurred in an open manner without any attempt to conceal the subject matter of the conversation or the transaction. The substance purchased on this occasion was later analyzed by the FDLE laboratory and determined to be cocaine.
On June 7, 1996, the confidential source returned to the Jolly Spot Lounge and met with E. Whitehead for the purpose of discussing the purchase of a “cookie.” A cookie is a slang word for an ounce of cocaine. After brief negotiations, E. Whitehead informed the confidential source that the “cookie” would cost $1,100.00. Later on the same day, the confidential source returned in her vehicle, parked in the Jolly Spot Lounge parking lot, and met with E. Whitehead. After a brief meeting,
E. Whitehead went into the Jolly Spot Lounge and immediately returned with a plastic bag containing the “cookie” of cocaine. The cocaine was given to the confidential source in return for
$1,100.00. The conversation and the narcotics transaction
occurred in an open manner without any attempt to conceal the subject matter of the conversation or the transaction. The substance purchased on this occasion was field tested with positive results for the presence of cocaine and confirmed by the
U.S. Department of Law Enforcement, Drug Enforcement Administration Laboratory.
On or about July 27, 1996, Investigative Aide T. Kent, a sworn correctional officer, entered the Jolly Spot Lounge in furtherance of the above referenced investigation. Kent met with persons identified as Charles Whitehead and “Sugar Man,” and engaged them in conversation regarding the purchase of crack cocaine. Charles Whitehead was tending the bar. During this conversation, a person identified as “Jody” approached, and “Sugar Man” advised Kent that “Jody” could sell her some crack cocaine. Kent ordered and “Jody” delivered two rocks of crack cocaine in exchange for $40.00. At or near the time of the transaction, “Jody” gave “Sugar Man” a piece of crack cocaine who in turn immediately began smoking it in the Jolly Spot Lounge. The conversation and the narcotics transaction occurred in an open manner without attempt to conceal the subject matter of the conversation or the transaction. The substance purchased on this occasion was later analyzed by the FDLE laboratory and determined to be cocaine.
On July 28, 1996, Kent and Division Special Agent Beverly Causey entered the Jolly Spot Lounge. There were approximately 40 patrons inside the premises. Kent noted that
there was the distinctive odor of crack cocaine inside the premises. “Sugar Man” met Kent and Causey at the bar. Kent told “Sugar Man” that they wanted some more crack cocaine and they were directed to “Jody.” Kent and Causey each purchased from “Jody” what he represented to be crack cocaine. The conversation and the transaction occurred in an open manner without attempt to conceal the subject matter of the conversation or the transaction. The substance purchased on this occasion was later analyzed by the FDLE laboratory and determined not to be cocaine.
Administrative charges were brought against Whitehead based upon alleged violations of the controlled substance statute within the beverage statute.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding. The parties were duly noticed of the formal hearing.
Count 1 of the Notice to Show Cause alleges that on May 7, 1996, the licensee permitted a patron or employee, Ernest Whitehead, to unlawfully possess, sell, or deliver a controlled substance as defined in Section 893.03, Florida Statutes, in violation of section 893.13(1)(a), Florida Statutes. Count 2 alleges that on May 24, 1996, the licensee permitted a patron or employee, Darrell Guice, to unlawfully possess, sell, or deliver a controlled substance as defined in Section 893.03, Florida Statutes, in violation of section 893.13(1)(a), Florida Statutes. Count 3 alleges that on May 24, 1996, the licensee permitted a
patron or employee, Ernest Whitehead, to unlawfully possess, sell, or deliver a controlled substance as defined in Section 893.03, Florida Statutes, in violation of section 893.13(1)(a), Florida Statutes. Count 4 alleges that on May 31, 1996, the licensee permitted a patron or employee, Ernest Whitehead, to unlawfully possess, sell, or deliver a controlled substance as defined in Section 893.03, Florida Statutes, in violation of section 893.13(1)(a), Florida Statutes. Count 5 alleges that on May 31, 1996, the licensee permitted a patron or employee, Ernest Whitehead, to unlawfully possess, sell, or deliver a controlled substance as defined in Section 893.03, Florida Statutes, in violation of section 893.13(1)(a), Florida Statutes. Count 6 alleges that on June 7, 1996, the licensee permitted a patron or employee, Ernest Whitehead, to unlawfully possess, sell, or deliver a controlled substance as defined in Section 893.03, Florida Statutes, in violation of section 893.13(1)(a), Florida Statutes. Count 7 alleges that on July 27, 1996, the licensee permitted a patron or employee, “Jody” to unlawfully possess, sell, or deliver a controlled substance as defined in Section 893.03, Florida Statutes, in violation of section 893.13(1)(a), Florida Statutes. Count 8 alleges that on July 27, 1996, the licensee permitted a patron or employee, “Sugar Man” to unlawfully possess, sell, or deliver a controlled substance as defined in Section 893.03, Florida Statutes, in violation of section 893.13(1)(a), Florida Statutes. Count 9 alleges that on July 28, 1996, the licensee permitted a patron or employee to
unlawfully possess, sell, or deliver a controlled substance as defined in Section 893.03, Florida Statutes, in violation of section 893.13(1)(a), Florida Statutes. Count 10 alleges that on July 28, 1996, the licensee permitted a patron or employee, “Jody,” to unlawfully possess, sell, or deliver a controlled substance as defined in Section 893.03, Florida Statutes, in violation of section 893.13(1)(a), Florida Statutes. Count 11 alleges that the licensee did unlawfully keep or maintain a place for the illegal keeping, selling, or delivering of cocaine in violation of Sections 823.10 and 893.13(2), Florida Statutes.
Section 561.29(1)(a), Florida Statutes, subjects an alcoholic beverage license to suspension or revocation whenever the licensee permits another on the licensed premises to violate the laws of Florida. Specifically, section 561.29(1) provides:
The division is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when it is determined or found by the division upon sufficient cause appearing of:
Violation by the licensee or his agents, officers, servants, or employees, on the licensed premises or elsewhere while in the scope of employment, of any of the laws of this state or of the United States, or violation of any municipal or county regulation in regard to hours of sale, services, or consumption of alcoholic beverages or license requirements of special licenses issued under s. 561.20, or engaging in or permitting disorderly conduct on the licensed premises, or permitting another on the licensed premises to violate any of the laws of this state or of the United States.
Cocaine is a controlled substance pursuant to section 893.03, Florida Statutes. It is a violation of Florida law to sell, use, deliver or possess cocaine. Section 893.13(1)(a), Florida Statutes.
Section 817.563, Florida Statutes, provides that it is unlawful to agree, consent, or in any manner offer to unlawfully sell to any person a controlled substance named or described in section 893.03 and then sell to such person any other substance in lieu of such controlled substance.
The Findings of Fact set forth above demonstrate that Whitehead’s employees, servants, or agents persistently committed the offenses of possession, sale or delivery of controlled substances in violation of Chapter 893, Florida Statutes, in and about the Jolly Spot Lounge and further allowed patrons to violate the provisions of Chapter 893.
In Lash, Inc. v. State Department of Business Regulation, 411 So.2d 276 (Fla. 3d DCA 1982), the court upheld the revocation of the Appellant’s alcoholic beverage license based on five(5) narcotic violations committed by his employees over the period of a week. The court held:
Where the violations are, as here, committed in a persistent and recurring manner consisting of more than one isolated incident, the Courts have not hesitated to find that such violations are either fostered, condoned or negligently overlooked by the licensee, even though he may have been absent at the time of the commission of such. In the present case, the recurring sales were made possible by Appellant’s failure to supervise the premises and its employees in a reasonable and diligent manner, properly leading to the license revocation.
Id. at 278.
The instant case falls within the holding of Lash. The narcotics violations at the Jolly Spot Lounge were persistent and recurring. Furthermore, the licensee or his agents, officers, servants, or employees knew or should have known about the drug activity occurring within the licensed premises.
Whitehead did not attend the hearing and as such no evidence was offered to rebut the evidenced presented by the Department.
In summary, the Department met its burden of proof. The proof is clear and convincing that employees and patrons of the licensed premises possessed, sold, and delivered controlled substances on the licensed premises in violation of the law.
Under such circumstances, the evidence supports the revocation of Whitehead’s license.
RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order revoking alcoholic beverage license number 76-00016, Series 2-COP, issued to Lawrence C. Whitehead, d/b/a the Jolly Spot Lounge, for premises located at 508 East Nelson Avenue, DeFuniak Springs, Walton County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1996.
1 A review of the file confirms that on August 13, 1996, Whitehead was sent an order confirming the continuance of the hearing scheduled for August 13, 1996, and rescheduling the hearing for September 27, 1996, at 9:15 A.M. CST in Marianna, Florida. Furthermore, the Department confirmed that it had no contact with Whitehead. To be abundantly cautious, the undersigned checked with his office and confirmed that Whitehead made no effort to reschedule the hearing or to notify the parties of any impending problem.
Lawrence C. Whitehead
Lynda L. Goodgame, General Counsel Department of Business and
All parties have the right to submit written exceptions within 15 days from the date of this Recommenced Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
