STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 97-2541

)

SADIE MAE JAMES, d/b/a )

RED TOP LOUNGE, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted in this proceeding on June 5, 1997, in Cocoa, Florida, before Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas A. Klein, Chief Attorney

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Sadie Mae James, pro se

Red Top Lounge

2804 Kennedy Street

Mims, Florida 32754

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner should suspend or revoke Respondent's alcoholic beverage license, pursuant to Section 561.29(1), Florida Statutes (1995),1 and Florida Administrative Rule 61A-2.022,2 because Respondent operated the licensed premises in a manner that was a public nuisance and permitted others to violate state criminal laws prohibiting the possession and use of controlled substances, or both.

PRELIMINARY STATEMENT

Petitioner filed a Notice To Show Cause and an Emergency Order Of Suspension against Respondent on May 15 and 16, 1997, respectively. Respondent timely requested a administrative hearing.

At the hearing, Petitioner presented the testimony of five witnesses and submitted one exhibit for admission in evidence. Respondent testified in her own behalf, called one witness, and submitted one exhibit for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the record of the hearing.

Neither party requested a transcript of the hearing. Petitioner timely filed its proposed recommended order ("PRO") on June 16, 1997. Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating alcoholic beverage licenses. Respondent holds alcoholic beverage license number 15-02695, series 2-COP for the Red Top Lounge located at 2804 Kennedy Street, Mims, Florida (the "licensed premises"). Respondent is the sole proprietor of the licensed premises.

2. On February 13, 1997, two of Petitioner's special agents ("SAS") and other undercover law enforcement officers entered the licensed premises as part of an ongoing narcotics investigation. Several patrons of the licensed premises were consuming marijuana

   and rolling marijuana cigars in plain view of Respondent's employees and managers. Respondent was not present at the time.

3. On February 28, 1997, the same SAS and law enforcement officers returned to the licensed premises incident to the same investigation. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Black."

4. On March 14, 1997, the same SAS and law enforcement officers returned to the licensed premises incident to the same investigation. After midnight on March 15, 1997, the SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Marty."

5. On March 15, 1997, the same SAS and law enforcement officers returned to the licensed premises, incident to the same investigation. After midnight on March 16, 1997, the SAS purchased a small package of marijuana for $10 from an unknown patron. The disc jockey routinely encouraged patrons over the public address system to smoke marijuana inside the licensed premises.

6. On April 25, 1997, one of the same SAS, another SAS, and other law enforcement officers returned to the licensed premises incident to the same investigation. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Kenny Harvey."

7. On April 26, 1997, the same SAS and law enforcement officers involved in the investigation on the previous day returned to the licensed premises. After midnight on April 27,

   1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey.

8. On May 2, 1997, two SAS previously involved in the investigation and other law enforcement officers returned to the licensed premises. After midnight on May 3, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey.

9. After midnight on May 3, 1997, two SAS previously involved in the investigation and other law enforcement officers returned to the licensed premises. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Roy."

10. After the previous transaction on May 3, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. After midnight on May 4, 1997, the SAS purchased a small package of marijuana for $10 from an unknown patron.

11. Subsequent to each purchase of marijuana by the SAS, the items purchased were chemically analyzed in a laboratory and found to be marijuana. Subsequent to each purchase of cocaine by the SAS, the items purchased were chemically analyzed in a laboratory and found to be cocaine.

12. The SAS involved in the investigation have extensive experience and training in narcotics investigation and detection of controlled substances. They have conducted numerous undercover investigations. Each agent has personal knowledge of the appearance and smell of marijuana. The open, flagrant, and

    notorious drug activity on the licensed premises was the worst each agent had observed in his career.

13. Each time the SAS entered the licensed premises, underage patrons consumed alcoholic beverages. More than half of the patrons present on each occasion consumed and rolled marijuana cigars. The second-hand marijuana smoke inside the premises was so great that the SAS were concerned for their personal health and the affect the second-hand smoke could have on each agent if subjected to a random drug test, pursuant to agency policy.

14. The purchase, consumption, and use of marijuana occurred in plain view of Respondent's employees and managers. Respondent's managers and employees never attempted to prohibit the illegal drug activity.

15. Respondent was never present on the licensed premises. She was caring for her daughter who died on April 2, 1997. During the time she was caring for daughter, Respondent relinquished management and control of the licensed premises to her granddaughter and her boyfriend.

    CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has jurisdiction over the subject matter and parties. The parties were duly noticed for the administrative hearing.

17. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Notice To Show Cause

    and Emergency Order of Suspension and the reasonableness of any penalty to be imposed. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Petitioner satisfied its burden of proof.

18. Respondent operated the licensed premises in a manner that was a public nuisance within the meaning of Section 823.10. Patrons visited the licensed premises for the purpose of using controlled substances defined in Section 893.03. The patrons kept, delivered, or sold such substances in the licensed premises in plain view of Respondent's authorized employees and managers.

19. Section 893.13 makes it unlawful to keep or maintain licensed premises used by patrons for unlawful purposes. Respondent personally fostered, condoned, or negligently supervised the licensed premises in a manner that permitted them to be used by patrons for unlawful purposes, including the unlawful possession and sale of controlled substances.

20. Section 561.29(1) provides, in relevant part, for the suspension or revocation of an alcoholic beverage license when the licensed premises are operated in a manner that constitutes a public nuisance; or the licensee permits another on the licensed premises to violate the law. Respondent did both.

21. Rule 61A-2.022 prescribes guidelines for imposing a penalty in this case. The only mitigating factor in evidence in this proceeding is the tragic loss of Respondent's daughter. That factor has been duly considered in determining an appropriate penalty in this proceeding.

22. There are several aggravating factors evidenced in this case. They include the severity of the offenses, the continuing and repetitive occurrence of illegal activities, their excessive, open, and notorious nature, the involvement of underage individuals, and the egregious harm to minors.

23. SAS visited the licensed premises on numerous occasions during a 90-day period from February 13 through May 4, 1997. By her own admission, Respondent never personally visited or supervised the premises. The tragic loss in Respondent's personal life does not justify the negligent manner in which Respondent allowed the licensed premises to be operated as a public nuisance and in violation of state criminal statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a Final Order revoking Respondent's alcohol and tobacco license.

DONE AND ENTERED this 7th day of August, 1997, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1997.

ENDNOTES

1/ All references to chapters and sections are to Florida Statutes (1995) unless otherwise stated.

2/ Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect as of the date of this Recommended Order.

COPIES FURNISHED:

Richard Boyd, Director

Division of Alcoholic Beverages and Tobacco

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Lynda Goodgame, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Thomas A. Klein, Chief Attorney Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Sadie Mae James, pro se Red Top Lounge

2804 Kennedy Street

Mims, Florida 32754

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

1/ All references to chapters and sections are to Florida Statutes (1995) unless otherwise stated.

2/ Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect as of

the date of this Recommended Order.

COPIES FURNISHED:

Richard Boyd, Director

Division of Alcoholic Beverages and Tobacco

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Lynda Goodgame, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Thomas A. Klein, Chief Attorney Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Sadie Mae James, pro se Red Top Lounge

2804 Kennedy Street

Mims, Florida 32754

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

RICHARD BOYD DIRECTOR DBPR DABT

NORTHWOOD CENTRE 1940 N MONROE ST

TALLAHASSEE FL 32399-0792

LYNDA GOODGAME GENERAL COUNSEL DBPR

NORTHWOOD CENTRE 1940 N MONROE ST

TALLAHASSEE FL 32399-0792

THOMAS A KLEIN CHIEF ATTORNEY DBPR

1940 N MONROE ST TALLAHASSEE FL 32399-1007

SADIE MAE JAMES RED TOP LOUNGE

2804 KENNEDY ST

MIMS FL 32754

Docket for Case No: 97-002541

Orders for Case No: 97-002541