The Issue The issue is whether the application for Alcoholic Beverage License No. 23-6847 received by the Department on June 21, 1985, should be disapproved: because the application discloses a person with a direct interest in the premises to be licensed (Mr. Farquharson) is ineligible for licensure pursuant to Section 561.15(2) and 561.17(1), Florida Statutes (1985), due to conviction for the sale of marijuana within the last five years, and for violation of Section 559.791, Florida Statutes (1985) for a material misstatement on the application by not disclosing these convictions?
Findings Of Fact An application for an alcoholic beverage license to permit consumption of beer and wine on a restaurant premises was filed by Pauline B. Farquharson which was received by the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco on June 21, 1985. "Exhibit 1). The application discloses that Barranett Farquharson born 7/1/52, has a direct interest in the premises to be licensed [Exhibit 1, page 18, Section I(6)(C)]. A personal questionnaire, Department of Business Regulation form DBR 71 OL for Barranett Farquharson was included in the application, which contained the following question and answer: "Have you ever been in this state, any other state, by the United States or by any foreign country: Arrested, charged or convicted of any violation of the law excluding minor traffic violations? Answer: Yes. On or about (1980-81). Arrested, possession of a weapon. Found not guilty." (Exhibit 2) The application also disclosed that the funds for the operation of the business, $60,000, had been obtained from personal funds in the amount of $4,934.09, and $56,065.91 from loans and mortgages. (Exhibit 1, page 11). A mortgage in the amount of $23,446.91 had been received from Standard Federal Loan Association of Gaithersburg, Maryland. A settlement statement included with the application, showed the borrowers as Barranett Farquharson and Pauline Farquharson. (Exhibit 1, pages 12-13). As part of the application, Mr. Barranett Farquharson was fingerprinted and the fingerprints were sent for examination to the Federal Bureau of Investigation. The Federal Bureau of Investigation responded with a report showing that the police department of New York City, New York had recorded the following arrest history, charges and charge disposition for Barranett Farquharson: 11/3/80 - Charged with possession of marijuana. Disposition: conditional discharge. 8/14/81 - Charged with sale of marijuana, possession of marijuana. Disposition: time served on criminal possession of marijuana. l0/14/82 - Charged with criminal possession of marijuana 4th, Criminal sale of marijuana 4th. Disposition: conditional discharge on criminal sale marijuana 4th. 11/3/82 - Charged with criminal sale marijuana 4th, unlawful possession marijuana. Disposition: sentenced to $50/30 days, fine paid on criminal sale of marijuana 4th. (Exhibit 4) A certified copy of the records of the Criminal Court of the City of New York was also entered into evidence as Exhibit 3. It disclosed that Barranett Farquharson, born 7/1/52, had been arrested and arraigned on charges of violating Section 221.15 of the penal law of the State of New York for the unlawful possession of marijuana and was adjudicated guilty of that charge on February 19, 1982. Mr. Farquharson was again arraigned on December 17, 1982 for violation of Section 221.40 of the penal law of the State of New York, criminal sale of marijuana in the 4th degree, and he received a conditional discharge. He was again arrested on November 3, 1982, arraigned on charges of violation of Sections 221.05 and 221.40 of the penal law of the State of New York on November 4, 1982, and he was found guilty of criminal sale of marijuana in the 4th degree and sentenced to pay a $250.00 fine. Section 221.05 of the penal law of the State of New York reads as follows: "Unlawful possession of marihuana. (VIOLATION)I A person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana. Unlawful possession of marihuana is a violation punishable only by a fine of not more than one hundred dollars. However, where the defendant has previously been convicted of an offense defined in this article or article 220 of this chapter committed within the three years immediately preceeding such violation, it shall be punishable (a) only by a fine of not more than two hundred dollars, if the defendant was previously convicted of one such offense committed during such period, and (b) by a fine of not more than two hundred fifty dollars or a term of imprisonment not in excess of fifteen days or both, if the defendant was previously convicted of two such offenses committed during such period." (Exhibit 6) Section 221.15 of the penal law of the State of New York provides: "Criminal possession of marihuana in the fourth degree. A person is guilty of criminal possession of marihuana in the fourth degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances of an aggregate weight of more than two ounces containing marihuana." Section 221.40 of the penal law of the State of New York provides: "Criminal sale of marihuana in the fourth degree. A/MISD.) A person is guilty of criminal sale of marihuana in the fourth degree when he knowingly and unlawfully sells marihuana except as provided on Section 221.35 of this article." (Exhibit 6)
Recommendation It is RECOMMENDED that the application for an Alcoholic Beverage License submitted by Mrs. Pauline Farquharson d/b/a Pauline's West Indian Restaurant be DENIED. DONE and ORDERED this 1st day of August, 1986, in Tallahassee, Florida. WILLIAM R. DORSEY, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1986. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301-1927 Mrs. Pauline B. Farquharson 104 N. E. 205th Terrace Miami, Florida 33179 James Kearney, Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301-1927 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 S. Bronough Street Tallahassee, Florida 32301-1927
Findings Of Fact Respondent, Alton Beverages, Inc., trading as Mayflower Lounge, holds Division of Alcoholic Beverages and Tobacco License Number 23-2043, Series 4- COP. Respondent conducts its business pursuant to said license at 17IG Alton Road, Miami Beach, Dade County, Florida. At all times material hereto Sam Rosen was the sole corporate officer and shareholder of Alton Beverages, Inc. In addition, at all times material to this proceeding, Robert L. Pyle was the night manager for Respondent's licensed premises at the aforementioned address. During the time periods alleged in the Notice to Show Cause, that is, from February 21, 1981 through March 7, 1981, Dottie Turner, Laura Kimberly, Mona Castro, Sandra Timmsen and Deborah Sutcliff were dancers at the licensed premises, and were "agents" of Respondent. In the early morning hours of February 21, 1981, an undercover officer in Petitioner's employ was introduced by a confidential informant to Robert L. Pyle, the night manager on duty at Respondent's licensed premises. Shortly after that introduction, the undercover officer purchased a quantity of cocaine from Pyle for $50.00, the sale and delivery of which substance took place on the licensed premises, while Pyle and the officer were seated at a table in the lounge portion of the premises. During the evening hours of February 21, 1981, Petitioner's undercover officer returned to the licensed premises. While seated at a table with Dottie Turner, a topless dancer in the employ of Respondent, Turner mentioned to the undercover officer that she was going outside "to smoke a joint." Thereupon, the undercover officer asked if he could purchase a "joint" from her, and she advised that she would "roll one" for him for one dollar. Thereafter, Turner went outside the licensed premises, subsequently returned to the table, and gave one marijuana cigarette to the undercover officer in exchange for one dollar. Later on the evening of February 21, 1981, the undercover officer made a second purchase of cocaine for $50.00 from Pyle, Respondent's night manager. Again, the purchase ant exchange of this cocaine took place on the licensed promises while the officer and Pyle were seated at a table in the bar. While still in the licensed premises on February 21, 1981, the undercover officer asked for, and obtained, a second marijuana cigarette from dancer Dottie Turner at no cost. On February 23, 1981 the undercover officer again returned to the licensed premises where he spoke with Dottie Turner. On this occasion another purchase of a marijuana cigarette for one dollar from Dottie Turner was accomplished, with the negotiation for and delivery of the cigarette occurring on the licensed premises. After delivery of the marijuana cigarette, the undercover officer inquired of Turner concerning the purchase of a larger quantity of marijuana. The undercover officer was advised by Turner that if he would give her the money for an ounce of marijuana she could purchase it for him and bring it to the licensed premises for delivery. When the undercover officer refused to part with the money prior to delivery, Turner advised him that he would have to come to her apartment to make the purchase. Subsequently, on February 25, 1981, the undercover officer went to Turner's apartment, some distance from the licensed premises, and purchased one ounce of marijuana for $30.00. On February 25, 1981, the undercover officer returned to the licensed premises. On this date, he met with Robert L. Pyle, the night manager, and requested to purchase one quarter-ounce of cocaine. While the undercover officer and Pyle were seated in the Manager's office on the licensed premises, Pyle advised the undercover officer that he could arrange the purchase of that amount of cocaine for $500.00. Pyle further advised the undercover officer that he would have to go upstairs to get the cocaine and would return shortly. Thereupon both the undercover officer and Pyle left the Manager's office, and the undercover officer resumed a seat in the lounge portion of the licensed premises. Shortly thereafter, Pyle returned, and, while seated at a table with the undercover officer and Deborah Sutcliff, one of Respondent's topless dancers, exchanged with the undercover officer the one quarter-ounce of cocaine for $500.00 in currency. As previously indicated, the address of the licensed premises is 1716 Alton Road, Miami Beach. This address consists of the first floor of a two- story concrete block structure. The first floor is leased by Respondent from the building owner, Sam Berlin. The second floor of the structure was leased from the building owner by Robert L. Pyle, the night manager, and several of the dancers and other employees of Respondent for use as apartments. At all times material hereto, access to the apartments on the second floor could be had either by way of an exterior stairway in the rear of the building, or through a door in the interior of the licensed premises opening on an interior stairway. This interior door was used frequently by the dancers to access their apartments, and was used by Pyle on at least one of the occasions when the undercover officer purchased cocaine as hereinabove described. The sketch appearing on or attached to Respondent's license does not show the second floor of the two-story structure as being contained within the licensed premises and, indeed, does not show the interior door giving access to the second floor, although the record in this proceeding establishes that the door was present when Petitioner's agent made the sketch of the premises to attach to Respondent's license. There is no showing in this record that the interior door and stairway were ever used by anyone other than persons making their residence on the second floor. The upstairs portion of the building was never used for storage or for any other purpose connected with the operation of the licensed premises. Finally, there is no showing in this record that Respondent bad, or attempted to exercise, any dominion or control over the second floor of the building. On March 7, 1981, pursuant to a search warrant, law enforcement officers, including Petitioner's undercover officer, conducted a raid of the licensed premises. One of Respondent's dancers was found to be in possession of in excess of 10 grams of cocaine in her purse on the licensed premises. In addition, a quantity of marijuana was found near the bar and a yellow change purse containing a cocaine kit and spoon were found in the Manager's office. In the upstairs area where several of Respondent's employees lived, another of Respondent's dancers was found to be in possession of a controlled substance, Diazepam, and a bartender In Respondent's employ was found to be in possession of Diazepam as well as a small quantity of marijuana. Still another dancer was found to be in possession of a quantity of marijuana in her apartment, while Robert Pyle's bedroom in the upstairs area contained Diazepam and assorted narcotics paraphernalia including a cocaine user's kit, knives and scales. In addition, in the general living area of the upstairs, there was assorted narcotics paraphernalia including large heating elements; boxes and plastic jugs and bags containing different cocaine cutting agents such as procaine; an automatic plastic wrapping machine; a large-size scale; test tubes; and two bags containing cocaine. Respondent does not deny that the aforementioned activities occurred, but instead defends against the allegations or the Notice to Show Cause, as amended, by contending that the corporate licensee, through its sole officer and shareholder, Sam Hill Rosen, took every reasonable precaution to guard against such activity occurring on the premises. Respondent contends, Petitioner admits, and the record herein clearly establishes that Mr. Rosen was not "directly involved" nor did he have personal knowledge of the activities occurring on the licensed premises. Respondent asserts that in an attempt to prevent legal activity from occurring on the licensed premises, it posted signs in conspicuous places, such as the dancers' dressing room, and gave written instructions to employees announcing its policy of prohibiting drugs, other than prescription drugs, from being used or sold on the licensed premises. Violation of this employment policy, according to Respondent, resulted, on occasion, in immediate dismissal of employees. Additional Policies allegedly adopted by Respondent to guard against illegal activity included prohibiting dancers from leaving the licensed premises to go outside while they were working, and subjecting all employees to periodic "shakedown searches". There was also some indication in the record that Respondent reserved the right to subject its employees to polygraph tests. Finally, Respondent also asserts that, acting through its principal, Mr. Rosen, the premises was periodically checked while Mr. Pyle was on duty to assure that no violations of law were occurring. Accepting Respondent's representation that the aforementioned policies were established on the premises, the record in this proceeding clearly establishes that to the extent that these policies did exist they were more honored in the breach than in the observance. For example, of those employees of Respondent who were called to testify at the final hearing in this proceeding, none of them had been administered a polygraph examination, none had had their persons or belongings searched while working on the licensed premises, and they had observed Mr. Rosen on the premises during the evening hours at best "infrequently". Mr. Rosen's failure to adequately supervise the licensed premises is corroborated by the fact that on February 23, 1981, when Petitioner's undercover officer was on the licensed premises, Mr. Pyle, the night manager, was off duty, and Mr. Rosen, who managed the licensed premises during other portions of the day, was not present. In addition, on at least one occasion, one of Respondent's dancers observed Pyle on the licensed premises in possession of both cocaine and pep pills, the latter of which, according to Pyle, were used in case ". . . some of the girls came into work and weren't quite up to doing their performance." The record in this proceeding fails to establish that any agent, employee or patron of Respondent was ever observed using illegal drugs or narcotics inside the licensed premises. In addition, the record clearly establishes that Respondent has never previously been cited by and law enforcement agency, regulatory or governmental body for narcotics law violations of any nature. Both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer in this proceeding. To the extent that those findings of fact have not been incorporated in this Recommended Order, they have been rejected as either being irrelevant to the subject matter of this proceeding, or as not having been supported by the evidence.
The Issue The issues are framed by a notice to show cause/administrative complaint brought by Petitioner against Respondent charging Respondent with violations under 561.29(1)(a) and (c) and 561.58, Florida Statutes. These alleged violations pertain to alleged drug activities on or about the premises for which Respondent holds a license issued by the Petitioner allowing Respondent to sell alcoholic beverages at that licensed premises. Respondent is also accused of maintaining the licensed premises for purposes of illegal drug activities. More particularly Respondent is held accountable for any violations associated with Sections 823.10, 893.03, 893.13(1)(a) and (f), and 893.13(2)(a)5., Florida Statutes.
Findings Of Fact Petitioner regulates the alcoholic beverage industry in Florida pursuant to Chapter 561, Florida Statutes. Among its functions Petitioner issues various licenses which allow alcoholic beverages to be sold. The license number 34-00017, series 1-COP has been issued to Respondent by Petitioner allowing on-premises sales and consumption at Respondent's premises in Jasper, Florida. Petitioner seeks to discipline Respondent's beverage license for reasons discussed in these facts and the conclusions of law section within the recommended order. Randall R. West is a beverage agent employed by the Petitioner. He was assigned to conduct an undercover investigation at Respondent's licensed premises. That investigation commenced in May, 1991 and was concluded in August, 1991. Over that period West tried to ascertain to what extent drug activities were occurring on or about the licensed premises. West talked to a patron in the licensed premises on May 10, 1991. That patron was Gary Cribbs. The discussion concerned the purchase of cocaine. Cribbs told West that he could get one-half gram of cocaine for $50.00. This discussion took place in the main bar area of the licensed premises in an area near the back pool table. After the arrangement for purchase had been made Cribbs approached West in the licensed premises and told West to follow him to the men's bathroom which was located outside the main bar area. To get there one walks out the back door across an open area to the bathroom which is attached to and part of the building proper. Only a few steps separate the back door from the bathroom. Once inside the men's bathroom, which is lighted, Cribbs produced a small container from his wallet. He asked West if he, Cribbs, could use some of the cocaine that he had produced from the wallet. Cribbs took some of the substance and poured it on the top of the toilet lid, chopped it up and snorted it up his nostrils. Then Cribbs' wife came into the men's bathroom and both Cribbs and his wife consumed the cocaine. The balance of the cocaine was turned over to West. On May 10, 1991 at different times the odor of marijuana could be detected in and around the licensed premises but West was uncertain of its origin. On May 15, 1991 West encountered Lou Brown and Charles Burnett at the licensed premises. Lou Brown arrived on a motorcycle in an area behind the premises. While in this area on a concrete foundation five feet from the building, Brown and Burnett smoked marijuana. West returned to the licensed premises on May 17, 1991 and once inside spoke to Charles Burnett. Burnett had approached the beverage agent reference a purchase of marijuana. This was a follow-up to a previous conversation about purchasing marijuana. Burnett asked West if West was still interested in purchasing marijuana and West replied in the affirmative. Burnett asked West to step outside the bar. Burnett said that he could get marijuana inside that was already weighed for a price of $40.00. West gave Burnett $40.00 while they were standing behind the building. Burnett went back inside the bar proper. West could not see where Burnett went in the bar. In a few minutes Burnett approached West in the bar and asked West to go outside. They went to West's vehicle which was approximately 20 feet from the entrance to the establishment. There Burnett produced a bag of marijuana. On May 17, 1991 when Burnett and West had walked through the premises in the direction of the men's bathroom at the back of the building they had observed several people standing outside the back door smoking a marijuana cigarette. When West attempted to gain entry into the men's bathroom the door was partially opened and he observed two additional persons smoking marijuana in the bathroom. On the evening of May 17, 1991 the Respondent was in the licensed premises. West returned to the licensed premises on May 22, 1991 and engaged in a conversation with Charles Burnett. Burnett asked West if West had a marijuana cigarette and West stated that he did not. Burnett asked West if he wanted to buy some marijuana and West said that he did. Burnett asked how much marijuana West wanted to purchase. West said he wanted a quarter of an ounce. This conversation took place while they were standing at the bar counter and it resulted in a purchase of marijuana off premises. On May 22, 1991 while at the licensed premises while going to use the men's bathroom West observed patrons standing just outside the back door of the building engaged in smoking marijuana. During most of that evening the smell of marijuana pervaded the inside of the premises. On two occasions Frank Bell who was the bar manager on duty was observed going out the back door of the premises and smoking marijuana with patrons while standing in back of the building. At this time the front door and back door to the building were propped open. When West returned to the licensed premises on May 24, 1991 he observed that the Respondent was present. Throughout that evening West observed patrons smoking marijuana behind the building outside the back door. Because of the ventilation system that was within the licensed premises the marijuana smoke from outside was being drawn into the premises such that anyone inside could have detected the marijuana smell if familiar with that aroma. On May 24, 1991 West observed three persons outside the rear door of the premises smoking a marijuana cigarette. Those persons were Greg Sapp, Jeff Gritzs and Jack Walker. On May 24, 1991 West was approached by Burnett and asked if West wanted to buy some marijuana. This conversation took place while West was seated at the bar area within the licensed premises. After that conversation West watched Burnett engage in a conversation with Jack Walker. After Burnett and Walker talked Burnett came back to West and told West that he could get a bag of marijuana for $25.00. This second conversation between Burnett and West took place at the bar within the licensed premises. West gave Burnett $25.00 in furtherance of the discussion they had at the bar and Burnett walked around inside the premises and started to exit the rear of the premises. Believing that Burnett was looking for Jack Walker, West went to Jack Walker who was playing a pinball machine within the licensed premises near the front and told Jack Walker that Charlie was looking for him. Charlie refers to Charles Burnett. Walker and West stepped out the rear of the premises and went to a vehicle that was parked directly behind the premises in an alley. That vehicle was parked about 50 feet away from the licensed premises. Walker got into that vehicle and retrieved a bag of marijuana. Walker than handed the bag of marijuana to Burnett, West handed $25.00 to Burnett and then Burnett handed the $25.00 to Walker. Then a marijuana cigarette was rolled at which time while standing in this area Burnett and Walker smoked a marijuana cigarette. West returned to the licensed premises on June 6, 1991. While there he observed a patron, who was determined to be James Alford, engaged in a drug transaction with another patron, Michael Brooks. This transaction took place in the dance floor area of the licensed premises near the front in which Alford passed Brooks a bag of what by appearance was marijuana. Brooks then came over to the area where West was seated and while standing up and speaking in a somewhat loud voice told another person that he had "a big bag of pot" (pot is a slang expression for marijuana) and he then pulled it halfway out of his pants pocket. Subsequent to the events between Brooks and Alford, West approached Alford and asked Alford if Alford had another bag of marijuana for sale. Alford responded that he did for $35.00. West asked if the purchase could be made for $25.00 and Alford said that he would try. This conversation between West and Alford occurred in the licensed premises near the front door in the area of the front pool table. As a result of this conversation Alford gave West a bag of marijuana while they were standing within 20 feet of the front entrance of the building that is the licensed premises. This exchange took place in plain view of anyone coming in or out of the building. On June 6, 1991 Burnett invited West to smoke a marijuana cigarette with him. In furthering the invitation West followed Burnett to the men's room associated with the licensed premises. When they reached the men's room they encountered a Billy Willis and Kevin Mercer. (In the investigation West had observed Billy Willis play records and tapes in the licensed premises in the manner of a disc jockey and had seen Willis turn off the lights at the licensed premises. This does not lead to the conclusion that Willis was an employee there.) The back door was open and Willis was holding a plastic bag with what appeared to West to be marijuana. Willis was putting this substance in a rolling paper. Burnett produced something that he referred to as hash or hashish and this substance was put together with Willis's apparent marijuana and formed into a cigarette by Mercer. The marijuana cigarette that was then passed around and smoked by Burnett, Willis and Mercer, all standing at the back door of the premises just outside, within two feet of the building. On June 6, 1991 while inside the licensed premises Burnett approached West and again asked West if he wanted to step outside and smoke another marijuana cigarette. Burnett and West exited the rear of the premises and encountered a man identified as Austin. Austin produced a marijuana cigarette at which time the cigarette was smoked by Austin, Burnett, Willis and a person named Doug Parr. This occurred within twenty feet of the rear door of the licensed premises. On June 7, 1991 West returned to the licensed premises and engaged in a conversation with Kevin Mercer about purchasing a bag of marijuana and Mercer advised that he could get the marijuana but it would be later before he could obtain it. This conversation took place while the two were standing near the front pool table of the licensed premises. West was then approached by a white male patron who introduced himself as Bruce Adams. At this time West was seated on a stool inside the dance floor area of the licensed premises. Adams told West that he had a marijuana cigarette and invited West to go out and smoke it with him, assuming that West had rolling paper. After this conversation West and Adams stepped out the back door of the premises. Adams produced a plastic bag of marijuana. A marijuana cigarette was rolled at which time Adams smoked the marijuana cigarette and there were several other unidentified persons all standing around that engaged in smoking the marijuana cigarette. This event between Adams and the other patrons took place approximately three feet from the door of the premises. On June 7, 1991 Kevin Mercer approached West while West was standing near the front pool table and asked West if West still wanted a bag of marijuana that had been discussed earlier that evening. West replied in the affirmative. West and Mercer then stepped outside the front entrance at which time Mercer produced a bag of marijuana and handed it to West and West paid Mercer $20.00 for the marijuana. This took place within ten feet of the front door on the sidewalk adjacent to the licensed premises. This transaction was in plain view. On June 8, 1991 West returned to the licensed premises and while there stepped out back to a car that was parked behind the licensed premises in the alley. Approximately nine people were seated in that car. They were engaged in smoking a substance that was said to be hash or hashish. They were using a coke can converted into a pipe. There was a conversation that went on in which Jack Walker said the cost of a block of this substance being described as hash would be $150.00. After the events outside with the nine persons in the automobile West returned to the licensed premises where Billy Willis was sitting at the disc jockey booth playing records and tapes. West engaged in a conversation with Willis and asked if he had any hash for sale. Willis advised that he had a small amount which he produced while seated at the D.J. booth and sold to West for $10.00. Later a conversation took place between West and Michael Brooks while seated in a booth across from a bar in reference to hash. West asked Brooks if he had any hash for sale and West advised that he did and directed West to follow him to the men's bathroom. While in the bathroom Brooks produced a block of suspect hash and West told him he would take $20.00 worth. Brooks took West's knife and cut off a chunk of the suspect hash and handed it to West. Willis and Brooks had been among the nine persons in the vehicle located out behind the licensed premises earlier in the evening. That's how West became familiar with the idea of hash and its possible availability for sale. Later laboratory testing of the substances which Willis and Brooks sold to West did not reveal that the substances were hashish. Later on June 8, 1991 West engaged in a conversation with Kevin Mercer while standing near the pool table. This conversation was about the purchase of marijuana. West gave Mercer $60.00 in advance to buy marijuana which Mercer said he could get. Subsequently Mercer delivered marijuana to West outside the front door of the licensed premises within a foot of the door. On June 8, 1991 West spoke to Jack Walker about purchasing marijuana. They went out back within ten feet of the back door and West paid $80.00 to Walker for the purchase of marijuana. West went back in the licensed premises on June 8, 1991 and engaged in a conversation with Michael Brooks. This conversation took place while seated in a booth across from the bar area. Brooks invited West to go and smoke hash with him. They exited the back door along with another patron named Robert Corey. They stood directly behind the men's room where the roof overhangs. Brooks had a coke can stashed in the rafters above the woodwork of this overhang. That coke can had been converted into a pipe. At that point Corey and Brooks smoked suspect hash. West had been advised that it was hash and it had that appearance. In addition to the events that have already been described concerning June 8, 1991, West made observations of several groups of people at different times smoking marijuana behind the licensed premises and during these occasions the aroma of the marijuana could be detected inside the licensed premises proper. West returned to the licensed premises on June 13, 1991. While there he observed Billy Willis standing out back near the men's bathroom. Willis advised West that he had enough marijuana for a marijuana cigarette and asked West if he had rolling paper. West gave Willis rolling paper at which time a marijuana cigarette was rolled and Willis smoked it. While Willis was engaged in smoking the marijuana cigarette, Frank Bell, the bar manager, exited the back door of the premises and looked over at West and Willis. West and Willis greeted Bell and Bell stepped back into the premises. Later on June 13, 1991 while inside the licensed premises seated at the bar, Charles Burnett advised West that he had marijuana. West and Burnett went outside near the men's bathroom and Burnett rolled a marijuana cigarette and smoked it. West observed the smoke from the marijuana cigarette wafting into the licensed premises. On June 13, 1991 while in the licensed premises West asked Jack Walker if Walker had marijuana to sell and Walker replied in the affirmative. Walker said that the marijuana had to be weighed. Later Walker was seated at the bar and West approached Walker and asked about the marijuana purchase. Walker advised West to step out back. Walker and West went into the men's bathroom where Walker produced the plastic bag of marijuana and a set of handscales. Walker weighed the bag of marijuana and advised West that it would cost $45.00. West paid Walker $40.00 and gave him the balance of the money later. On June 13, 1991 while seated at the bar next to Amy West, a patron, the female patron advised West that she had some "speed" also known as amphetamines. West asked the patron how much it would cost. The patron said it would be free. She put her purse on top of the bar and retrieved a pill bottle and produced a couple of white pills. She handed West four of the pills and told him that they were "white crosses". Later laboratory testing revealed that this was not a controlled substance. The pills were epherdrine. In a further conversation on June 13, 1991 between West and Amy West while seated at the bar, discussion was made about cocaine. Amy West asked the beverage agent if the beverage agent would sponsor half the money necessary to buy half a gram of cocaine. The beverage agent said that he would and was told by Amy West that the beverage agent's share would cost $50.00. West, the beverage agent, put three twenty-dollar bills on top of the bar and asked Frank Bell for change for one of those twenty-dollar bills and then slid $50.00 across the bar to Amy West. She took the money and handed it to Gary Wayne Boyd who was seated next to her. Later Boyd asked beverage agent West to step out front with him. Beverage agent West, Amy West and Boyd then went out front to a pickup truck that was parked there. Boyd and Amy West were seated in the pickup truck and Boyd produced a quantity of suspect cocaine. Boyd divided the cocaine and delivered approximately half of that cocaine to beverage agent West. This took place within 40 or 50 feet of the front door. On June 14, 1991 West returned to the licensed premises and while in the premises seated at the bar engaged in a conversation with Kevin Mercer about the purchase of marijuana. He gave $40.00 to Mercer to purchase the marijuana. Later Mercer delivered the marijuana to West while standing outside the front door of the licensed premises within about 40 feet of that door. The delivery took place in a corridor between the licensed premises and another building. Later on June 14, 1991 West engaged in a conversation with Jack Walker while seated at the bar counter. Walker had squeezed between West and the Respondent at the bar. At that time Walker told West that he had a few bags of marijuana for sale at $50.00. West and the Respondent were seated and Walker placed himself between those two individuals. Walker was not seated. West had a further conversation with Walker at the back pool table and they departed to an area behind the men's bathroom at the licensed premises. There they encountered a man named Bart Harvey. Harvey gave two bags of marijuana to Walker who in turn gave the marijuana to West and West paid Walker $50.00. On June 14, 1991 during the course of the evening West observed the odor of marijuana inside the licensed premises and he observed persons outside the premises smoking marijuana. The aroma of marijuana was even noticeable in the lobby of the licensed premises because of the ventilation system and during this time Respondent and his wife were present in the licensed premises. On June 15, 1991 West returned to the licensed premises and engaged in a conversation with James Thomas Alford concerning the purchase of marijuana. This conversation took place in front of the premises between two parked cars. West gave Alford $50.00. Alford later approached West while West was in the licensed premises and asked West to step outside with him. Alford and West stepped outside to an area between two cars parked in front of the premises at which time Alford delivered a bag of marijuana to West. This location was within 30 feet of the front entrance to the licensed premises. A patron saw this delivery being made and asked if he could purchase marijuana from the beverage agent. On June 19, 1991 West returned to the licensed premises and engaged in a conversation with Amy West. Amy West asked the beverage agent if he wanted to smoke a marijuana cigarette with her at which time Amy West, Charlie Burnett, Gary Wayne Boyd, and the beverage agent exited to the rear of the premises. They walked around behind the men's bathroom. They then came back in the licensed premises and went to the dance floor area side. When they entered the area of the dance floor inside the premises, Frank Bell, Jack Walker, and another unidentified white female and an unidentified white male were there smoking marijuana. Another marijuana cigarette was rolled by the unidentified white male and it was smoked. While they were in this location a patron Bobby Don Staten banged on the door and hollered out "Everybody put your hands on top of the bar." This person Staten was pretending to be a police officer. On June 20, 1991 West went back to the licensed premises. While there he stepped out the back door near the men's bathroom and observed Frank Bell and Lou Brown engaged in smoking a marijuana cigarette. This was approximately three feet from the exit at the back. On June 20, 1991 West engaged in a conversation with Kevin Mercer reference the purchase of marijuana. This was related to a purchase of marijuana off premises. This conversation with Kevin Mercer took place in the area where Lou Brown and Frank Bell had been observed smoking marijuana. The conversation between West and Mercer was overheard by Frank Bell, the bar manager. On June 24, 1991 West returned to the licensed premises and while seated at the bar was approached by Gary Wayne Boyd. Boyd told West that he had cocaine for sale. Later Boyd came back to the bar where West was seated and motioned for West to follow him outside. They went to the men's bathroom. There West observed Robert Corey and Charles Burnett. Burnett was sitting backwards on the toilet making lines of what appeared to be cocaine on the tank lid to the toilet. West considered this to be cocaine given its appearance. While Burnett was conducting this activity Boyd and West were standing at the doorway. Boyd produced a white powdery substance and West asked him how much it would cost to purchase that substance. Boyd said that a gram would cost $100.00. West told Boyd that he wanted to buy a gram and gave Boyd $100.00 to purchase the cocaine Boyd handed him. On June 25, 1991 West returned to the licensed premises and was approached by Billy Willis while seated at the bar. Willis advised that he had a joint, meaning a marijuana cigarette. He invited West to step out back with him for the purpose of smoking marijuana. While standing just outside the back door of the premises Willis, Charles Burnett and another patron identified as Farmer smoked the marijuana cigarette. At that time the back door was closed; however, patrons were exiting the back door to use the men's bathroom. West returned to the licensed premises on July 17, 1991. During that evening West and Jack Walker stepped out the back door of the premises. On the way out Walker made a motion for Walt the bartender on duty to come with West and Walker. While standing just outside the back door Walker produced a small amount of marijuana, rolled a marijuana cigarette and Walt and Walker engaged in smoking the marijuana. They were within three feet of the back door. On July 18, 1991 while at the licensed premises West went to the men's bathroom and observed Robert Corey and an unidentified white female behind the premises engaged in smoking marijuana. Corey and this woman were within fifteen feet of the door. The odor of the marijuana being smoked could be detected inside of the premises. Corey and the woman were not trying to hide their activities in smoking the marijuana. West returned to the licensed premises on July 19, 1991. He engaged in conversation with Jack Walker about the purchase of a quarter pound of marijuana while standing at the front pool table of the licensed premises. Later, while seated in the dance floor area of the bar, Walker asked West if he had a pocket knife. West replied in the affirmative and was told to follow Walker outside that he had something to share with him. They went into the men's bathroom at the licensed premises and while there Walker produced a quantity of what appeared to be cocaine and made it into lines on the toilet lid. Walker told West that this substance was cocaine. Walker snorted the suspect cocaine up his nose and they reentered the licensed premises. On July 20, 1991 West returned to the licensed premises and went with Charles Burnett, Corey and Farmer out back. While outside near the back door Corey produced a marijuana cigarette while standing near the air conditioned compressor. Lou Brown and two other unidentified persons were already in the area. Those three individuals were engaged in passing a marijuana cigarette between them and were smoking it. While these activities were occurring other patrons stepped out of the back door of the premises either to use the bathroom or just to look around. The patrons were in a position to observe the marijuana being smoked. The back door was also propped open. On July 22, 1991 West returned to the licensed premises. He was seated at the bar and there were only about five patrons present at that time. The patron known as Butch Brown entered the premises with his wife and hollered out "Who's got the best dope around." Jack Walker walked up to Butch Brown and produced a marijuana cigarette from his shirt pocket. This action by Walker could be clearly observed. Brown then produced his own marijuana cigarette from his shirt pocket. Brown and Walker compared the marijuana cigarettes while standing at the bar. Walker then said in a voice loud enough to be heard that when this "joint was gone he had a bag that he would smoke." These events took place in the licensed premises standing at the corner of the bar near the front pool table. Shortly thereafter West, Walker, Brown and Burnett went out behind the men's bathroom at which time the marijuana cigarette that Brown had earlier and the marijuana cigarette that Walker had earlier were smoked by Walker, Brown and Burnett. They were standing under the roof overhang near the bathroom. On July 23, 1991 West returned to the licensed premises and while standing out back he engaged in a conversation with Jack Walker. Charles Burnett approached them and produced a marijuana cigarette and smoked it. This was within ten feet of the rear entrance to the licensed premises. Later on July 23, 1991 West and Burnett were seated at the bar when they were approached by Walker who asked them to step out back with him. The three of them entered the men's bathroom at which time Walker produced a quantity of suspect cocaine. Walker put the suspect cocaine on the back of the toilet at which time Burnett began chopping the suspect cocaine into a finer powder and putting it into lines. Walker and Burnett inhaled the suspect cocaine up their nostrils. While this was occurring the door to the bathroom was closed. While in there someone banged on the door and said, "Hey, now ya'll get out of there with them drugs." On July 23, 1991 while back inside the licensed premises Jack Walker was seated at the corner of the bar near the front pool table Walker motioned West to come over to him at which time Walker handed West a bag of marijuana in an open manner. This was done by pulling the bag of marijuana out of his pants pocket and handing it to West. This transfer occurred at the corner of the bar near the front pool table. West then stepped out back of the licensed premises with the bag of marijuana at which time Charles Burnett rolled a marijuana cigarette from that bag. Kevin Mercer and Charles Burnett engaged in smoking the marijuana cigarette. This took place within ten feet of the back door of the licensed premises. On July 23, 1991 when West reentered the licensed premises Burnett had the previously described bag of marijuana that belonged to Jack Walker. Burnett was seen to walk over to where Walker was seated and in an open manner handed the bag to Walker. On July 31, 1991 West returned to the licensed premises and was seated at the bar with Charles Burnett on his right and Jack Walker to Burnett's right. West overheard a conversation between Burnett and Walker in which Burnett was asking Walker about where something was. He observed Burnett walk to the dance floor area of the premises which was closed. Burnett then came back from the dance floor area and handed the person attending the bar a package wrapped up with a wrapper made of a brown paper bag. He asked the person tending bar to put it in the microwave for ten seconds. The bartender placed the package in the microwave in the bar area for ten seconds. After ten seconds he opened the door and smoke rolled out of the microwave and the smoke revealed the presence of marijuana which pervaded the licensed premises. Burnett then took possession of the marijuana. Burnett stated that a hole needed to be bored into the package of marijuana until his hands could cool down and then Burnett placed the package in his pants pocket. Frank Bell, who was the bar manager, was present playing the pinball machine. When the odor of marijuana started he made a comment to Burnett to not be cooking that marijuana in his microwave anymore. On August 2, 1991 West went back to the licensed premises and noticed that Respondent was present. On that evening Walker approached West while West was standing at the pinball game and asked West if he wanted to buy an ounce of marijuana. West replied in the affirmative. Later Walker and West stepped out back of the licensed premises and while standing there Walker produced a plastic bag containing suspect marijuana and West purchased it from him for $65.00. There was a pickup truck parked next to the back door and the purchase was made while standing at the back of the pickup truck. On August 3, 1991 West returned to the licensed premises. He saw Lou Brown, a patron, arrive at the premises on his motorcycle. Several other patrons and West stepped outside to take a look at the motorcycle Brown was riding. The motorcycle was parked directly in front of the premises. At that time Lou Brown produced a marijuana cigarette and lit it and began smoking it and passing it to Charlie Burnett to smoke as well as Farmer. Farmer was squatting down next to the front door. Frank Bell opened the door, poked his head out, looked at the motorcycle and said "nice bike." When Bell did this, Farmer who was engaged in smoking the marijuana cigarette, had his head turned toward Frank Bell and blew marijuana smoke in the direction of Bell. On August 3, 1991 West went to the men's bathroom and saw several patrons smoking marijuana just outside the back door. He made a similar observation when going to the men's bathroom later on that evening. West returned to the licensed premises on August 8, 1991. Burnett invited West to step out back of the premises to smoke marijuana with him. Once out back Burnett produced a bag of marijuana and a marijuana cigarette was rolled. Farmer and a white female identified as "Ditty-Bop" joined in with Burnett in smoking marijuana. They were within ten feet of the back door. On August 8, 1991 Michael Brooks invited West to step out back of the premises to smoke marijuana with him. They were accompanied by Billy Willis and once outside Willis and Brooks went in the men's bathroom and with the door opened rolled a marijuana cigarette. Once the cigarette was rolled Brooks and Willis while standing behind the premises just outside the back door smoked the marijuana cigarette. They were within two or three feet of the back door when smoking the marijuana. On August 9, 1991 West returned to the licensed premises. At that time he saw the Respondent and the Respondent's wife present. He also observed Frank Bell open the front and back doors and turn on the ventilating fans. When this was done West observed people standing outside the back door. He also observed that the smell of marijuana was sucked into the premises by the ventilating fans. On August 9, 1991 West and Burnett went to the rear of the premises near the men's bathroom. Burnett produced a plastic bag of marijuana. A cigarette was rolled and Burnett smoked it. While Burnett and West were standing right at the corner of the men's bathroom, West observed the Respondent exit the premises. The Respondent entered the men's bathroom, exited the bathroom and looked back at West and Burnett. When the Respondent looked back Burnett was engaged in smoking the marijuana cigarette. Burnett was smoking the cigarette in an open manner. When Burnett would exhale the smoke of the marijuana it entered in through the back door of the premises. Respondent took no action to stop Burnett from smoking marijuana. On August 9, 1991 while West was standing in front of the licensed premises, he ordered a bag of marijuana from Kevin Mercer and paid $25.00 in advance. Back inside the licensed premises seated near the lift windows inside the dance floor area Mercer approached West and asked him to step out back. They went out the back of the licensed premises and near the back door Mercer delivered a bag of marijuana to West. The delivery was made in an open manner within one foot of the exit on the side of the licensed premises where the D.J. booth is located. On August 10, 1991 West entered the licensed premises and engaged in a conversation with Walker while standing next to the pool table. This discussion involved the purchase of marijuana. Walker told West that he had a bag of marijuana in his pocket and would have to look at it and see what it was worth. Walker and West stepped out back of the premises just outside the door. Walker produced a plastic bag of marijuana and told West that it would cost $20.00. West paid $20 for the marijuana. They were within two feet of the back door at that time. Later on August 10, 1991 Burnett asked West to go outside and smoke a marijuana cigarette with him. As they were exiting West leaned over and told Frank Bell, bar manager, that West and Burnett were going outside to smoke a joint, meaning marijuana. Bell replied "good, I'll be right out". Later Burnett, Robert Corey and Frank Bell engaged in smoking a marijuana cigarette outside. West returned to the bar on August 15, 1991. When he entered the bar the man named Walt was tending the bar. There were approximately eight patrons present. West ordered a beer and asked Walt where everybody was located. Walt explained that people were in the other portion of the licensed premises known as the dance floor, which was shut off and the door closed and the windows that separate the dance floor from the other part of the licensed premises were pulled down. West entered the dance floor area and saw several patrons. Those patrons were at the back of the dance floor near a service bar. Among them was Jack Walker. He commented that he had a bag of "pot," meaning marijuana, to smoke a joint from. Walker was trying to explain to Charlie Burnett where the bag of "pot" was. He explained that it was in a Budweiser beer box next to the bar on the other side, that is the main part of the premises. Burnett was having difficulty understanding Walker's directions and West offered to go get the marijuana. He walked over to the main part of the bar where approximately six patrons were present. He went to the boxes that were stacked in the area of the bar in the main part of the licensed premises. The box that he was looking for was among boxes where empty beer bottles are kept. He found the marijuana in a baggie and removed it and observed Walt the bartender watching what he was doing. He retrieved the bag of marijuana with his left hand and carried it around the main bar area back to the dance floor area. Once back in the dance floor area a white female patron named Sherry rolled a marijuana cigarette on top of the service bar in the dance floor area. That cigarette was then passed around and smoked. Eventually the persons in the dance floor area went back to the main part of the bar. At that time, Walt the bartender commented that the smell of marijuana was stinking up the bar. His reference was to "pot" smelling up the bar, meaning marijuana. Walt then went and turned the big ventilating fan on located in the wall and this cleared the marijuana smoke out. Later Burnett asked West to go smoke a marijuana cigarette with him at which time Burnett and West went through a door at the back of the dance floor area. Walt opened the door behind them in the dance floor area and told West and Burnett not to smoke any more dope back there. He said that if you want to roll one back there you can roll it but don't smoke it back there. Burnett could not find any rolling papers to prepare a marijuana cigarette so West and Burnett exited the dance floor area and went back to the main area of the bar. Subsequently, Burnett, Walker, Billy Willis, Sherry and West entered the dance floor area of the premises and Burnett produced a marijuana cigarette and rolling papers and a marijuana cigarette was rolled and smoked. There were times other than the dates described when beverage agent West entered the licensed premises in the period May through August, 1991 and nothing irregular occurred. On the Friday nights when Respondent would be in attendance there was a great deal of noise inside the licensed premises. Concerning an awareness of the possible problems with drugs in the licensed premises, on April 19, 1990 Chief of Police John Franklin Osborn of Jasper, Florida spoke with the Respondent at Respondent's instigation. Chief Osborn also spoke with the sheriff's office of Hamilton County about getting an undercover officer to examine that potential problem. Osborn had previously spoken with the Respondent in November or December, 1990 about having an undercover person in the bar to look at the issue of possible drug activities there. At that time Osborn checked with the Hamilton County Sheriff's Office about an undercover officer doing surveillance. An undercover surveillance or investigation by the sheriff's office was not conducted. In conversation Respondent had told Osborn that if sales of drugs were going on in the licensed premises the Respondent wanted to do something about it. Osborn described the alley behind the licensed premises as one in which lighting is available at the local telephone office at the opposite end of the alley from the licensed premises. Osborn is also aware that a light exists in the men's bathroom of the licensed premises which provides light immediately outside that convenience. There are no lights in the alley proper. His description of the lighting is that it is medium quality lighting and that at night you can identify people if you are in the alley but if you are outside the alley you cannot look into the alley and identify who the people are. Osborn established that no drug arrest had been made in the licensed premises other than arrests associated with the case that has been described here. Osborn heard the Respondent tell Jack Walker to leave the licensed premises on one occasion, but the Respondent allowed Jack Walker back into the bar at a later date. The nature of the patrol activity around the bar area was once on Friday and once on Saturday night. This refers to patrol activity by the Jasper, Florida Police Department. Margaret Bell, who is the sister-in-law of Frank Bell, had managed the licensed premises in the past, as recently as the summer of 1990. She describes the Respondent's instructions to her were that she not allow drugs, unauthorized liquor, or fighting, and to call Respondent if problems occurred. In her experience the Respondent would be at the bar on Friday night. Respondent would return on Sunday or Monday morning to check up on the week's business. Frank Bell who worked at the bar with his sister-in-law, Margaret Bell, had been informed of Respondent's conditions about misconduct in the bar. Frank Bell was recommended to replace his sister-in-law as bar manager and was the manager in the period of the subject investigation. The recommendation came from Margaret Bell. Margaret Bell worked on July 5 and 6, 1991 as an employee under the management of Frank Bell and did not observe any problems in the bar. She established that Billy Willis is not an employee of the bar but someone who was allowed to play the records and tapes as disc jockey and would be given chips and cokes in return for his service. Margaret Bell identified that on Friday and Saturday night with the noise level up you might have to yell at the person next to you to be heard above the din. Margaret Bell identified that to get the kind of ventilation necessary to deal with the number of people in the bar in the summer that the employees would open the front door in the dance area and the back door on the main bar side. Margaret Bell states that she has smelled marijuana in the bar when the exhaust fans were on and had told patrons to leave from the area behind the bar. She also told persons out front who were smoking marijuana to leave. These requests to have these persons leave were in accordance with the Respondent's instructions to her. Margaret Bell has also seen Frank Bell ask patrons to leave five or six times. Margaret Bell did not call law enforcement when she smelled marijuana out back which had occurred on seven to nine occasions. Additionally, she did not post signs about drug usage or receive any specific instructions about drug matters beyond those described before concerning Respondent's remarks to her. Margaret Bell was told that Frank Bell had smoked marijuana during the period when she and her husband had first been married but she had not witnessed this personally. Frank Bell was the bar manager from August, 1990 to August 23, 1991. His instructions as bar manager, based upon what the Respondent told him about management, was that no drugs and no unauthorized liquor would be allowed in the bar. Respondent made mention of those basic rules on many occasions. Frank Bell identified the fact that he had told people to leave the outside area who were smoking marijuana. In this connection Frank Bell had asked people to leave the back door area on many occasions. The record does not reveal that he had called for law enforcement assistance to deal with this problem. Frank Bell didn't post signs concerning prohibition against drug usage in the licensed premises. Frank Bell's arrangement with the Respondent concerning his employment status was that he would share 50% of the net profits for his work as manager. Frank Bell identified that Jack Walker, Gary Wayne Boyd, Billy Willis, Kevin Mercer, and Charles Burnett are customers of the licensed premises. Frank Bell has also experienced the exhaust fans pulling marijuana smoke into the licensed premises. Frank Bell was arrested based upon facts that are described, and charged with a criminal law violation based on those facts. Respondent has been associated with the establishment for 33 years and has been the licensee since 1977. His practice in the past has been to hire someone to run the licensed premises and to split the profits with them. He is typically at the licensed premises on Friday. His instructions for management are no drugs, unauthorized liquor, fighting or card games. Respondent corroborates that the noise level on Friday night is loud and that you need to be close to the person that you are conversing with to hear and be heard. Respondent has never overheard people discussing drug transactions inside the bar. In the one instance where a transaction was discussed in his presence he did not hear because he has impaired hearing. Respondent in describing his conversations with Chief Osborn spoke in terms of having the Chief check on the possibility of drugs at the licensed premises, although Respondent says he has never seen drugs in his business. He has smelled the marijuana smoke in the place. Respondent has smelled the odor of marijuana on three or four occasions and that led him to tell Frank Bell or the person running the bar to tell people to leave who were smoking the marijuana. Again, the record does not reveal that Respondent sought the assistance of law enforcement on these occasions. Respondent has never seen a drug transaction on or about the premises. Respondent's attendance at the bar is usually from 7:00 p.m. until closing on Friday nights. Otherwise he just drops in occasionally. Respondent has not put up lights out back so that patrons could be seen more clearly and their activities monitored, nor has he put signs up concerning the prohibition against drugs and he has not asked the Petitioner, local police department, or sheriff's office to talk to employees about drug problems.
Recommendation Based upon a consideration of the facts found and conclusions of law reached, it is recommended that a final order be entered which revokes license no. 34-00017, Series 1-COP held by the Respondent. RECOMMENDED this 2nd day of October, 1991, in Tallahassee, Florida. CHARLES C. ADAMS 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 2nd day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5349 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1-5 are subordinate to facts found. Paragraph 6 is subordinate to facts found, except with the reference to Billy Willis as being an employee of the Respondent. That reference and others that suggest that Willis was an employee is incorrect. Paragraphs 7-37 are subordinate to facts found. Paragraph 38 is subordinate to facts found with the exception that the facts were not presented to show that the odor of burning marijuana was prevalent inside the licensed premises. Paragraphs 39-47 are subordinate to facts found as is Paragraph 48 with the exception of the proposed fact that Respondent did a "double take when he came out of the men's restroom." That is rejected. Paragraphs 49-51 are subordinate to facts found. Paragraph 52 is rejected. Paragraphs 53-57 are not necessary to the resolution of the dispute. Paragraph 58 is subordinate to facts found. Paragraphs 59 and 60 are not necessary to the resolution of the dispute. Paragraphs 61-63 are subordinate to facts found. Paragraph 64 is not necessary to the resolution of the dispute. Paragraphs 65-69 are subordinate to facts found. Paragraph 70 is not necessary to the resolution of the dispute. Respondent's Facts Paragraph 1 in the initial sentence is subordinate to facts found. The balance of that paragraph is not necessary to the resolution of the dispute. As to Paragraph 2 while the 1977 sketch of the licensed premises that was filed with the application did not show the men's bathroom in the same location as it was in 1991, the men's bathroom in 1991 is still considered part of the licensed premises. Paragraphs 3-11 are subordinate to facts found. Paragraph 12 is rejected. Paragraph 13 is subordinate to facts found. Paragraph 14 is rejected in that Chief Osborn described the available lighting behind the licensed premises as moderate. Paragraphs 15-18 are subordinate to facts found. Paragraph 19 is rejected in that Respondent indicated that he had some belief that marijuana was used outside the premises on occasion based upon its odor. Paragraph 20 is subordinate to facts found. Paragraph 21 is rejected. COPIES FURNISHED: Nancy C. Waller, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 Donald K. Rudser, Esquire Post Office Drawer 1011 Jasper, FL 32052 Richard W. Scully, Director Division of Alcoholic Beverages and Tobacco 725 S. Bronough Street Tallahassee, FL 32399-1000 Donald D. Conn, General Counsel Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1000
The Issue Should discipline be imposed against Respondent's license as a limited surety agent for violation of Section 648.45(2)(a) (e), and (k), Florida Statutes (2006)?
Findings Of Fact On January 6, 2003, DFS issued Respondent a series 2-34 limited surety agent (bail bond) license. That license remains valid. On May 3, 2006, in State of Florida vs. Vincent Lamone Addison, in the Circuit Court, 14th Judicial Circuit of the State of Florida, in and for Gulf County, Case No. 06-0107CF, Respondent was charged by information with: Count I, Possession with intent to sell/deliver within 1000 feet of place of worship or convenience business; Count II, Possession of marijuana in excess of 20 grams, offenses contrary to Section 893.13, Florida Statutes (2005), third degree felonies. In the same information, in Count III, it was charged that he did obstruct (an) officer without violence, a violation of Section 843.02, Florida Statutes (2005), a first degree misdemeanor. On December 18, 2006, the assistant state attorney in Circuit Court Case No. 06-107CF, filed a Motion to Consolidate, asking that the Court enter an order consolidating the count for possession of a controlled substance with intent to deliver, with the count related to possession of more than 20 grams of marijuana. On December 19, 2006, in Circuit Court Case No. 06- 107CF, a Plea, Waiver and Consent was signed by Respondent as defendant in that case, attested by his counsel and the assistant state attorney, and found by the Circuit Court Judge to be a plea freely and voluntarily made and sworn to and subscribed before the court and approved and accepted by the court related to possession of marijuana, a third degree felony with a statutory maximum imprisonment of five years. The plea was made upon the agreement that the adjudication be withheld, with service of three-years' probation, to terminate after 18 months if all conditions were complete and no violations of the probation had occurred. In addition, by order of the Circuit Court Judge, certain charges/costs/fees were imposed in Circuit Court Case No. 06-107CF. When Respondent executed his Plea, Waiver and Consent in Circuit Court Case No. 06-107CF, it reflected that the charge of "Obstruct officer without violence" had been stricken by line and initials provided, by what appears to be the defense counsel and the assistant state attorney in the case. In Circuit Court Case No. 06-107CF, as reflected in an order by the Circuit Court Judge referring to those proceedings, entered December 19, 2006, upon his appearance before the Court with representation, it indicates a plea of nolo contendere was entered. It pertained to Count I. On the form order, it refers to "Sales/Del/Poss/cannis-w/in-100Ft. Church 893.13(1)(a) 3F." Under that reference is found "Poss. Marijuana in Excess 20 grs. 893.13(6)(a) 3F". The numbers refer to Section 893.13(1)(a) and (6)(a), Florida Statutes (2005), and "3F" refers to third degree felony. In this order it was reflected that the adjudication of guilt was withheld, and that the defendant received three-years' probation, to terminate after 18 months upon satisfaction of conditions of probation. The court order refers to fees required by the court to satisfy its terms for accepting the plea. On December 21, 2006, in Circuit Court Case No. 06- 107CF, the Circuit Court Judge entered an Order Withholding Adjudication of Guilt and Placing Defendant on probation. In this order it reflects entry of a plea of nolo contendere to the offense of "Possession of more than 20 grams, 3rd-Degree Felony," for which the Respondent received three years of probation. Other conditions of the probation were reflected in this order, to include the costs and fees imposed by the Court. On January 12, 2007, precisely the same order was entered by the Circuit Court Judge. In addition to the nolo contendere plea in Circuit Court Case No. 06-107CF, Respondent in his testimony at hearing in the present case, acknowledged that the drug offense took place in Port St. Joe, Florida. He was arrested on April 21, 2006. Respondent did not contest the charges because marijuana was found on the console of his car and some was in his front pocket. Respondent's understanding of his nolo contendere plea was that it was to possession of marijuana exceeding 20 grams. The amount was somewhere in the range of 118 to 120 grams. In the present case, Respondent through his testimony, explained that he had been diagnosed with lupus and that he smoked marijuana to help his body function while confronting his disease. Respondent is aware that possession of marijuana in Florida is illegal, even if intended for the purpose he had in mind to provide him relief from the pain of lupus. Respondent is not acting in the capacity of a bail bond agent at this time. That loss of income has had significant impact on his earning capacity. Mr. Tynalin Smiley, who resides in Port St. Joe where the Respondent lives, has known the Respondent from the time Respondent was born. They are good friends. Mr. Smiley belongs to the same church as Respondent. He visits in Respondent's home at times. He believes that Respondent is a respectable person in the community. Mr. Robert Humphrey, who resides in Dothan, Alabama, met Respondent in 1996 when Respondent did an internship from Troy State University. Mr. Humphrey and Respondent worked in the area of juvenile justice, going into schools and providing counseling to students. Over the years Mr. Humphrey has kept in contact with Respondent. Occasionally Mr. Humphrey and Respondent are together socially. They go out to dinner. Respondent has attended Mr. Humphrey's church. Mr. Humphrey looks upon himself as being a big brother to Respondent. Mr. Humphrey has observed that Respondent remains active in the Respondent's community. Mr. Humphrey believes that Respondent regrets his choice that led to the action against him, that involving the marijuana possession that has been discussed.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered Respondent in violation of Section 648.45(2)(a), (e) and (k), Florida Statutes (2006) and revoking Respondent's limited surety agent (bail bond) license. DONE AND ENTERED this 27th day of July, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2007. COPIES FURNISHED: William Gautier Kitchen, Esquire Gregg Marr, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Vincent Lamone Addition Post Office Box 483 Port St. Joe, Florida 32457 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The capitol, Level 11 Tallahassee, Florida 32399-0307
The Issue The issue in this case is whether Petitioner may terminate the continuing teaching contract of Respondent on the grounds that she has been guilty of misconduct in office, immorality, breach of contract, and other just causes for dismissal. Petitioner alleges that Respondent had in her possession two pipes for the purpose of smoking marijuana.
Findings Of Fact Respondent is a 37 year-old second-grade teacher. She has continuing contract status. She has taught continuously for 10 years in the Osceola County School District, until she was suspended in early January, 1992, as a result of the subject incident. At the time of her suspension, she was completing her third year at Ventura Elementary School, which has only been open for three years. She taught the prior five years at Boggy Creek Elementary School. Respondent has always had good relations with principals, fellow teachers, and parents. Her students stand out when they enter third grade. Respondent has a unique ability to maintain rapport and control in the classroom. She is an enthusiastic teacher who invests considerable energy in teaching. Respondent has enjoyed excellent evaluations. The most revealing indicator of her exceptional value as a teacher rests in the fact that other teachers with children entering second grade select Respondent much more frequently than they select the other second-grade teachers. Respondent has consistently produced students better prepared than their counterparts to meet the academic and social demands of third grade. Since being divorced several years ago, the center of Respondent's life has been teaching. About a year prior to the subject incident, Respondent met Richard Kenny. Mr. Kenny, who apparently lives out of town, shares Respondent's residence when he visits. On December 20, 1991, Mr. Kenny and Respondent invited four casual acquaintances over to Respondent's home for a barbecue. Respondent invited her guests to make themselves at home. At some point after the party began, Respondent and Mr. Kenny re-entered the house. Respondent smelled burning marijuana and, although she saw no one smoking it, immediately informed her guests that she would not tolerate the consumption of marijuana in her home. Offended, the guests left. The following day, Respondent and Mr. Kenny were cleaning the house. Winter break had already begun, and they were planning to drive to New Hampshire to visit Mr. Kenny's family. In the course of cleaning the living room, Respondent found two marijuana pipes that had been left by her guests the prior day. There was no more than trace amounts of marijuana residue in the pipes so, without considerable thought, Respondent took them into her bedroom and placed them on the dresser. It is unclear what Respondent intended to do with the pipes. Her focus at the moment was on completing a hurried housecleaning, so she and Mr. Kenny could get on the road and begin their vacation. She typically placed in her bedroom all misplaced items found during housecleaning. On the evening of December 21, Respondent and Mr. Kenny went out to eat. When they returned, Respondent changed and went to the utility room to turn on the water heater, which she turned off when unneeded in order to save money. She noticed that a window had been broken in the utility room in an apparent attempt to burglarize her home. Respondent called the police. A female sheriff's deputy arrived about five minutes before a male deputy arrived on the scene. The deputies, who are young and inexperienced, remained on the scene together. The male deputy arrived while Respondent was showing the female deputy the utility room, which was at the other end of the house from Respondent's bedroom. Because the house was in the male deputy's territory, he assumed the primary responsibility of investigating and filling out the police report. The male deputy and Mr. Kenny sat down in the living room to fill out the police report. Respondent went back to her bedroom to find a sweater and a lighter in order to smoke a cigarette. Unknown to her, the female deputy had followed her. Standing in the doorway, the deputy saw one of the pipes on the dresser. Returning to the living room, the deputies conferred momentarily about the pipes. The female deputy returned to the bedroom, seized the pipes, brought them out to the living room, and confronted Respondent with them. Respondent initially denied ownership of the pipes. In the course of questioning, Respondent became emotionally upset and, defying the instructions of the deputies, kept walking back into her bedroom. Exasperated, the male deputy, who is 21 years old and had been in law enforcement less than one year, handcuffed Respondent. He and possibly the female deputy expressed a concern, unfounded as it turned out, that Respondent might be returning to her bedroom to destroy evidence. Neither deputy could give credible testimony as to when Respondent was given her Miranda rights. In fact, she was advised of her rights as the handcuffs were applied. The details are unclear as to how an investigation of a house burglary transformed into the arrest of the homeowner without any criminal record for possession of drug paraphernalia in the form of two empty pipes (except for residue) commonly available in the Central Florida area. At some point prior to being handcuffed, Respondent "admitted" that the pipes were hers. But the admission was induced by what can be characterized as nothing less than a fraudulent inducement on the part of one or both deputes, who assured Respondent that if she admitted to ownership of the pipes, nothing would happen. Numerous material inconsistencies exist between the stories of the two deputies. Based on all of the circumstances, the State Attorney's office agreed that Respondent could enter a pretrial diversion program designed to leave Respondent without a criminal record. After being booked and obtaining release on bail, Respondent returned home in the early morning hours of December 22. She and Mr. Kenny proceeded to leave town on their trip. When she returned, Respondent learned that Petitioner had been advised of her arrest. On the second day of school following Winter break (car trouble had delayed Respondent's return by one day), Petitioner informed Respondent that she was suspended without pay due to the incident. Considerable evidence was produced at the hearing concerning a teacher's effectiveness following two versions of the subject facts. The first version is that Respondent possessed the pipes without any intent to smoke marijuana. This is the version adopted in the present case in which one or more guests had, without permission, lighted the pipes to consume marijuana, had been told to leave, and had left the pipes. There was no evidence that such innocent possession of the pipes, together with a subsequent arrest, would impair Respondent's effectiveness as a teacher, constitute immorality, jeopardize the welfare of Respondent's students, or establish other grounds for the cancellation of Respondent's contract. The second version is that Respondent possessed the pipes with an intent to smoke marijuana. Petitioner has failed to establish such guilty possession. Even if Respondent had been guilty of possession of the two pipes with an intent to smoke marijuana, Petitioner has failed to establish, absent any evidence suggesting that this would have been more than an isolated incident, that Respondent's effectiveness as a teacher would be impaired, the welfare of her students would be compromised, or that prevailing community standards of morality would be violated. Petitioner has undertaken considerable efforts at eradicating drug abuse among students. Justifiably concerned that the subject incident could undermine these critically important efforts, Petitioner prudently decided to initiate a process that would trigger an administrative factfinding process in which both sides could present evidence for impartial consideration under principles of law. Not surprisingly, there is no uniformity of opinion as to Respondent's fitness as a teacher had been she been proved to have had guilty possession of the two pipes in an isolated incident. However, several critical facts emerge. First, Respondent is an outstanding teacher. There is no evidence that any aspect of her personal life has ever had an adverse bearing on her ability to teach. Second, Respondent's effectiveness as a teacher would be unaffected, even if Respondent were found guilty of possession of the two pipes with an intent to smoke marijuana in an isolated incident. Respondent has for many years maintained firm control of her classroom. There is no evidence that her effectiveness in this regard, especially given the tender age of her students, would be impaired if she were to return to the classroom, even after having been found guilty of possessing the pipes with an intent to smoke marijuana. The majority of parents and fellow teachers would not be troubled by Respondent's return to the classroom even if she had possessed the pipes with an intent to smoke marijuana in an isolated incident. To the contrary, with the exception of managerial-level school administrators, the evidence suggests that all components of the relevant community would want Respondent to be able to bring her considerable talents back to the classroom even if she had been guilty of possessing the pipes with an intent to smoke marijuana in an isolated incident. The willingness of the parents and teachers to receive Respondent back in the classroom, even if she had been proved guilty of wrongful possession of the pipes in an isolated incident, is based in part upon the recognition of her unique talents working with students. The opinions of many teachers and parents are informed by a willingness to tolerate a considerable separation between a teacher's private and public lives. These persons focus on the work of the person rather than aspects of her personality or personal life when these latter factors do not impact her teaching. Parents and teachers offered a variety of explanations as to why Respondent should be allowed to return to the classroom, even if she were guilty of wrongful possession of the pipes. The most articulate explanation was offered by Elizabeth Williams, who had a daughter in Respondent's class during the 1991-92 schoolyear. She also has another daughter who will be in second grade in the 1993-94 schoolyear. Explaining why Ms. Williams would want her younger daughter to be taught by Respondent, even if she were guilty of wrongful possession of the pipes in an isolated incident, Ms. Williams first described her older daughter's reaction when Respondent was abruptly suspended in January. The daughter told her mother that she wanted to quit going to school. As a mother residing in the neighborhood served by Ventura Elementary School and a teacher at Ventura, Ms. Williams explained that second graders, unlike older students, are not thinking about drugs. Ms. Williams' attitude toward Respondent's return to the classroom, even if Respondent had possessed the pipes with an intent to smoke marijuana in an isolated incident, reflects conservative values prevalent in the community. Describing herself as a member of a conservative Christian denomination, Ms. Williams, while rejecting a repetitive cycle of sinning followed by repentance, emphasizes the importance of forgiveness in an isolated incident. Expressing this core aspect of the community's moral code, Ms. Williams testified that she would welcome Respondent back to the classroom and send her younger daughter to Respondent's class as long as there was no evidence that the guilty possession was other than an isolated incident. The core community value of forgiveness was recently embraced by the administration in connection with a principal of another school in the district. He was arrested for driving under the influence of alcohol. Unlike Respondent, the principal was convicted of the offense. Petitioner decided in his case to impose a two-week suspension without pay and other relatively minor sanctions. In part, the attitude of the administration, which is an important community with which Respondent must interact in order to be an effective teacher, appears to have been based on a misreading of the attitudes of other members of relevant communities, such as teachers and parents. For example, one representative of Petitioner identified several teachers by name as opponents to Respondent's return to the classroom. But when these persons were called as witnesses, they testified differently. In any event, there is no evidence that Respondent would have trouble working with any member of the administration if she were not found guilty of wrongful possession of the pipes. Even under the guilty-possession scenario, the weight of the evidence is that the administration is properly mindful of the vital need to protect students from the scourge of drug abuse, the support for Respondent from the parent and teaching communities, and the importance of maintaining exceptional teachers. After weighing these factors, even under the wrongful- possession hypothetical scenario, the evidence is that the administration would continue to work professionally with Respondent, despite in an isolated incident, as it has with the principal who was actually convicted of driving under the influence. Petitioner has failed to establish that Respondent was guilty of possession of the two pipes with an intent to smoke marijuana. The evidence shows that she came into possession of the pipes under innocent circumstances so that, notwithstanding her arrest, there is no question surrounding her moral fitness and effectiveness as a teacher or the welfare and safety of her students. Even if Petitioner had proved that Respondent possessed the pipes with an intent to smoke marijuana in an isolated incident, Petitioner failed to prove that, under the circumstances of this case, her contract should be terminated. Even under this scenario, the evidence fails to show that Respondent's effectiveness as a teacher would have been impaired, she would have been guilty of immoral behavior or moral turpitude, or that the safety, health, or welfare of her students would have been imperilled.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Osceola County enter a final order reinstating Lynn Epstein and awarding her full back pay for the time that she would normally have worked following her suspension. ENTERED this 27 day of July, 1992, in Tallahassee, Florida. COPIES FURNISHED: Chris Colombo, Superintendent Osceola County School Board 817 Osceola Blvd. Kissimmee, FL 34744-4495 Andrew B. Thomas Rowland, Thomas & Jacobs, P.A. 1786 N. Mills Ave. Orlando, FL 32803 Joseph Egan, Jr. Egan, Lev & Siwica, P.A. P.O. Box 2231 Orlando, FL 32802 ROBERT E. MEALE 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 27 day of July, 1992.
Findings Of Fact Based on the stipulations of the parties, the exhibits received in evidence, and the testimony of the witnesses at the hearing, I make the following findings of fact. Sweet's Lounge, Inc., held alcoholic beverage license number 16-350, Series 2-COP, for the location of Sweet's Lounge, 706-710 Northwest First Street, Dania, Florida, at all times relevant to the charges in this case. On April 24, 1985, Beverage Investigator Frank Oliva drove his automobile to the front of the premises of Sweet's Lounge. He was approached by a male who asked what he wanted, and Oliva responded that he wanted "Boy," a street name for heroin. The male answered that he did not have any. Another male approached Oliva, who again indicated that he wanted some "Boy". Oliva observed the male enter the premises of Sweet's Lounge. Beverage Investigator Alphonso Junious was inside the licensed premises of Sweet's Lounge and observed the entire transaction with Oliva. He observed the male enter the premises of Sweet's Lounge and approach a female patron known as Ramona, who handed the male a tinfoil package. The male returned to Investigator Oliva and exchanged the tinfoil package for $20.00. The male then reentered Sweet's Lounge and gave the $20.00 to Ramona. The substance alleged to be heroin was laboratory analyzed to contain no controlled substances. On April 25, 1985, Beverage Investigator Frank Oliva returned to the front of the premises of Sweet's Lounge. He discussed the purchase of some "Boy" from an individual named William Rainey. Rainey went inside the premises of Sweet's Lounge and returned with a tinfoil package which he delivered to Oliva in exchange for $20.00. The substance alleged to be heroin was laboratory analyzed to contain no controlled substances. On April 25, 1985, Investigator Junious returned to the premises of Sweet's Lounge. The on-duty barmaid, Beatrice, left the premises for a short time and asked a female, later identified as the barmaid Linda, who was sitting at the end of the bar counter smoking a marijuana cigarette, to watch the bar until Beatrice returned. Beatrice said nothing to Linda about the marijuana cigarette. Linda walked behind the bar and continued smoking the marijuana cigarette while performing bartending duties. When Beatrice re-entered the premises, Ramona was standing in the doorway handing a tinfoil package to a male in the view of Beatrice. Junious entered into conversation with Ramona and, during the conversation, Ramona delivered a small tinfoil package to an unknown male patron. Investigator Reylius Thompson was also inside the premises of Sweet's Lounge on April 25, 1985. He observed several patrons smoking marijuana cigarettes, which he was able to identify through their appearance, smell, and the manner of smoking. On May 1, 1985, Investigators Junious and Thompson returned to the licensed premises of Sweet's Lounge. They observed the bartender Beatrice seated at the bar counter with two male patrons who were smoking a marijuana cigarette. After the bartender Linda came on duty, the officers observed her remove a marijuana cigarette from her purse and begin to smoke it behind the bar counter. Junious asked Linda for change for a $20.00 bill so he could buy cocaine. Linda asked what Junious wanted, and he told her a $10.00 piece of cocaine. Linda removed a tinfoil package of cocaine from her purse behind the counter and sold the cocaine to Junious for $10.00. While Investigator Thompson was seated at the bar on May 1, 1985, he also asked Linda for some cocaine. Linda again removed a tinfoil package of cocaine from her purse and delivered it to Thompson in exchange for $10.00. On May 3, 1985, Investigators Junious and Thompson returned to the licensed premises of Sweet's Lounge. While Beatrice was bartender, Junious observed several patrons smoking marijuana cigarettes. After Linda came on duty, Junious asked to purchase $10.00 piece of cocaine from her. Linda requested Beatrice to hand her her purse, from which she removed a tinfoil package of cocaine. Junious observed a plastic bag containing numerous tinfoil packages inside of Linda's purse. Linda sold the package of cocaine to Junious for $10.00 While Investigator Thompson was sitting at the bar on May 3, 1985, he asked Linda for some cocaine. Linda asked Beatrice to pass her purse to her from behind the bar. Beatrice handed the purse to Linda and Linda took out a tinfoil package of cocaine which she sold to Thompson for $10.00 On May 8, 1985, Investigators Junious and Thompson returned to Sweet's Lounge. While the investigators were seated at the bar counter, they observed three male patrons also seated at the bar counter smoking a marijuana cigarette in the presence of Beatrice, the bartender. After Linda came on duty, Junious asked her for a $10.00 piece of cocaine. Linda removed her purse from behind the bar, removed a tinfoil package of cocaine from her purse, and sold the cocaine to Junious for $10.00. Later that evening, Thompson asked bartender Linda for a $10.00 piece of cocaine. She again removed a tinfoil packet containing cocaine from her purse and sold the cocaine to Thompson. ll. On May 10, 1985, Investigators Junious, Thompson and McKeithen went to Sweet's Lounge. Junious asked the bartender Linda for $10.00 worth of cocaine, and she replied that she only had rocks. Junious agreed to purchase the rocks and received a tinfoil package of cocaine from Linda, which she had removed from her purse behind the bar. Later that same evening, Investigator Thompson also asked Linda for $10.00 worth of cocaine. She removed from her purse a tinfoil package containing cocaine which she sold to Thompson for $10.00. That same evening Investigator Thompson observed a male disc jockey smoking marijuana in the presence of patrons and passing the marijuana cigarette to some of the patrons. On May 14, 1985, Investigators Thompson and McKeithen returned to Sweet's Lounge. Thompson observed four patrons seated at a table cutting a white powder and snorting it from the top of the table. He also observed Ramona and a male patron, while seated at the bar, snort a white powder through an empty cigarette paper tube in view of the bartender Beatrice. On May 15, 1985, Investigators Junious and Thompson returned to Sweet's Lounge. Junious asked the bartender Linda if she had any cocaine, and she responded that she did but Junious would have to wait until she served a customer. After serving a customer, Linda sold Junious a small tinfoil package containing cocaine for 510.00. Junious also observed several patrons smoking marijuana cigarettes, sniffing white powder, and removing tobacco from regular cigarettes, inserting white powder into the cigarettes, and smoking same. On that same date, Investigator Thompson also asked Linda for cocaine. She replied that she had rock or powder cocaine and Thompson ordered rock. Linda walked into the package store portion of the lounge and returned shortly to Thompson, handing him a tinfoil package containing a small rock of cocaine in exchange for $10.00. On that same date Thompson observed Ramona using an empty cigarette paper tube to snort a white powder. On May 22, 1985, Investigators Junious and Thompson entered the licensed premises of Sweet's Lounge. The officers observed patrons seated at the bar counter smoking a marijuana cigarette in the presence of bartender Beatrice. The officers also observed Ramona seated at a table with several male patrons, all of whom were snorting a white powder from the table top and smoking a white powder in cigarettes. On May 29, 1985, Investigator Thompson returned to Sweet's Lounge. He observed Linda smoking a marijuana cigarette behind the bar counter and observed Ramona sitting on the west side of the premises with a quantity of white powder on the table. Thompson approached Ramona, sat down next to her, and began to talk to her about cocaine. While Thompson was seated with Ramona another female patron smoked a marijuana cigarette. Later that same evening, Thompson asked bartender Linda for cocaine and she responded that she had rock or powder. He ordered powder and Linda removed a tinfoil package of cocaine from her purse, which she sold to Thompson for $10.00. On the majority of the occasions described above when the investigators were inside the premises of Sweet's Lounge, there was a pervasive odor of marijuana smoke throughout the entire premises. The white powder which was being sniffed by patrons on the licensed premises at the various times described above was cocaine. In brief summary, the following relevant events took place at the licensed premises during the period of the investigation: 4/24/85: A patron participated in sale of a counterfeit controlled substance. 4/25/85: A patron participated in sale of a counterfeit controlled substance, an employee smoked a marijuana cigarette while on duty, and a patron delivered two small tinfoil packages to other patrons, and several patrons smoked marijuana cigarettes. 5/01/85: Two patrons smoked a marijuana cigarette, an employee smoked a marijuana cigarette while on duty, and an employee made two sales of cocaine. 5/03/85: Several patrons smoked marijuana cigarettes, and an employee made two sales of cocaine. 5/08/85: Three patrons smoked marijuana cigarettes in immediate presence of an employee, and an employee made two sales of cocaine. 5/10/85: A disc jockey smoked marijuana and shared it with patrons, and an employee made two sales of cocaine. 5/14/85: Six patrons sniffed cocaine; two did so in immediate presence of an employee. 5/15/85: Several patrons smoked marijuana and sniffed cocaine, and an employee made two sales of cocaine. 5/22/85: Several patrons smoked marijuana cigarettes in the immediate presence of an employee and several patrons sniffed cocaine. 5/24/85: A patron had cocaine in open view on a table, a patron smoked a marijuana cigarette, an employee on duty smoked a marijuana cigarette, and an employee made one sale of cocaine. Mr. Ebbie Sweet was never on the licensed premises on any of the occasions described above when the investigators were on the licensed premises. At all times material to this case, Mr. Andrew Johnson has been the manager of Sweet's Lounge. The owner, Mr. Ebbie Sweet, has given the manager various instructions about the operation of the premises. The instructions include: (a) keep the premises clean, (b) keep drugs out of the premises, (c) tell all employees to do the same, (d) put up signs about what can and cannot be done on the premises [including a sign reading "No Drugs Allowed"], (e) post the DABT flyer, and (f) put a "no loitering" sign outside the premises. The "no loitering" sign has not worked very well. When Mr. Andrew Johnson is on the premises he spends most of his time in the package store portion of the premises and very little of his time in the bar portion. On one occasion prior to the events described above, the Dania Police Department told Mr. Andrew Johnson there was a drug problem in Sweet's Lounge. He told them to come in anytime they wanted to and to arrest anyone they wanted to. Mr. Johnson did not change any procedures at Sweet's Lounge after the Dania Police Department told him about drug problems. Mr. Andrew Johnson knows Ramona. He has never seen her buy or use drugs, but he has heard that she is suspected of being a drug user. Ramona was a frequent visitor at Sweet's Lounge. Mr. Ebbie Sweet is the president of and the principal functionary of Sweet's Lounge, Inc. A sister and a nephew of Mr. Sweet also have some nominal connection to the corporation, but neither of them is active in running the licensed business. Mr. Ebbie Sweet enjoys an excellent reputation in his community. He is active in community affairs and has engaged in various charitable activities for the betterment of his community. It has always been his desire to run a reputable business and if he had known what was going on inside the lounge he would have fired those involved and would have closed the place up himself. In sum: Mr. Ebbie Sweet appears to be a good citizen who was trying to do the right thing. Unfortunately, for both him and the community, he wasn't trying quite hard enough. Some time ago Mr. Ebbie Sweet's wife passed away. As a result of that misfortune Mr. Sweet slowed down a lot and became less active in many things, including the amount of time and energy he devoted to the licensed business. He had at one time visited the licensed premises on a regular basis, but during the past ten months he only made a couple of trips a month to the licensed premises, and those were primarily to check on the inventory. During the past ten months he has hardly ever visited the licensed premises after dark. Mr. Sweet was relying on Mr. Andrew Johnson to manage things for him at the licensed premises even though he knew that Mr. Johnson was not the most reliable of managers. As Mr. Sweet put it, Mr. Johnson "has a few faults." Some years ago Mr. Sweet had an alcoholic beverage quota license which permitted him to sell all types of alcoholic beverages at Sweet's Lounge. When he had that license he had written instructions for his employees, he had doormen, and he had security guards. Since he sold the quota license and obtained his present license (which is limited to beer and wine sales), he has not had written instructions for his employees, he has not had doormen, and he has not had security guards. Mr. Sweet does not perform polygraph examinations or background checks on his employees. He has thought about hiring undercover people to patrol the premises, but has never done anything about it. The area of town in which Sweet's Lounge is located is one in which controlled substances are readily obtainable. Sweet's Lounge has had a recurring problem with undesirable people loitering in front of the lounge, people Mr. Sweet described as "hoodlums." All of the employees who worked in the bar portion of the licensed premises knew that marijuana and cocaine were being used by patrons inside the licensed premises on a regular, frequent, and flagrant basis. None of the employees took any action to prevent, discourage, or terminate the use of controlled substances by patrons. The foregoing findings of fact include the majority of the findings of fact proposed by the Petitioner. They do not, however, include any proposed findings based solely on the testimony of Investigator McKeithen. Some of the proposed findings based on McKeithen's testimony are irrelevant to the disposition of this case. Other proposed findings based solely on McKeithen's testimony are rejected because much of her testimony was neither persuasive nor convincing. While I have no doubts at all about her candor, honesty, or integrity, I have certain doubts about her attention to detail and her ability to recall and describe with accuracy events that took place in her presence. In making the finding that the employees who worked in the bar portion of the licensed premises were aware of the extensive use of drugs by patrons, I have not overlooked the testimony of the employees denying such knowledge. I find the denials to be unworthy of belief in light of all the other evidence in the record.
Recommendation For all of the foregoing reasons it is recommended that the Director of the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking alcoholic beverage license number 16-350, series 2-COP issued to Sweet's Lounge, Inc., for the premises located at 706-710 Northwest First Street, Dania, Florida. DONE AND ORDERED this 16th day of August, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1985. COPIES FURNISHED: Louisa Hargrett, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Chesley V. Morton, Esquire 604 Southeast Sixth Avenue Ft. Lauderdale, Florida 33301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr. Secretary The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
The Issue At issue herein is whether or not the Respondent, Lucille Marie Royce, is guilty of alleged illegal possession of Marijuana, Librium and Darvocet capsules as alleged by the Petitioner's Administrative Complaint dated May 14, 1979, charging that the Respondent, on or about October 20, 1978, was arrested at her home by officers of the Santa Rosa County Sheriff's Department and found to be in illegal possession of Marijuana and the above-mentioned controlled substances, in violation of Subsection 464.21(d), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the following relevant facts are found. On October 20, 1978, officers of the Sheriff's Office of Santa Rosa County, Florida visited the Respondent's premises in Santa Rosa County and, pursuant to an authorization to search her (Respondent's) premises, found and seized approximately sixteen items as reflected on Petitioner's Exhibit 14, which is an inventory of items received from Respondent's residence on October 20, 1978. Among these items were Marijuana, three Darvocet 100 tablets and one Librium tablet. The Respondent was placed under arrest; however, the charges of possession of paraphernalia and possession of controlled substances wore nolle prossequi. 2/ Rosa Lee Wier, a Deputy Sheriff of Santa Rosa County, testified that she received a call on or about October 20, 1978, to the effect that there were Marijuana plants growing on the outside of Respondent's residence. Deputy Weir visited Respondent's neighborhood and observed what appeared to be Marijuana plants growing in the front and side of Respondent's residence. Deputy Weir returned to the Sheriff's Office and received assistance from two other deputies who returned to the scene and inquired of Respondent the reason the "flowers" were growing in her front yard. Respondent credibly testified that she did not know what kind of "flowers" there were growing in her front yard but that she suspected that they were Marijuana plants which had been planted by Navy student pilots who were living in the apartment building next door. Following the deputies' discovery that the plants were in fact Marijuana plants, they requested, and obtained, a voluntary search release from Respondent to search her premises for other controlled drugs. Based on the ensuing search, several packets of Marijuana, three Darvocet 100 tablets and one Librium tablet were found. The Respondent is a Registered Nurse and has been since 1977. She has been a Licensed Practical Nurse since 1966. Prior to the subject incident, she has not been involved in any disciplinary actions by the Petitioner. Respondent, since 1977, was employed as a Charge Nurse in the Emergency Room at Santa Rosa Hospital. Respondent's supervisor on the three to eleven shift, Leilanim Fobtanilla, testified that Respondent was a good nurse who renders good health care. In this regard, character letters are introduced reflecting the fact that the Respondent is a person of unquestionable character. (Respondent's Exhibits 1 and 2.) Respondent's supervisor testified that it was not unusual for nurses to withdraw medications intended for patients and and up taking such medications home when patients refuse to take it. According to Ms. Fobtanilla, this situation usually occur when patients refuse to take prescribed medication and the nurse, being busy, forgets to return the medication to the medication drawer. (TR 40-42.) In this regard, Respondent testified that this exact situation occurred to her on October 19, 1978, when she withdrew three Darvocet 100 tablets and one Librium capsule which had been prescribed for a patient who refused to take the medication. Respondent testified that she put the medication in her uniform because she would never leave medication lying around in the Emergency Room due to the large number of patients milling around therein. Respondent took the medication home and while changing clothes, noted that she bad taken the medication home. She put the medication in her purse to return it to the hospital the following day. In this regard, Respondent's testimony was credible and was not attached by Petitioner's counsel. Respondent testified that she inherited the residence at which she is now living from a former patient for whom she had served as a private duty nurse, Elton E. Nichols. Respondent testified that Mr. Nichols and she became lovers while she was caring for him as a private duty nurse. Mr. Nichols died of cancer on September 12, 1978, and willed the property to Respondent based on their relationship. Respondent testified credibly that she underwent a period of grief following Mr. Nichols' demise and that it was months before she could pull herself together to try to rid herself of his personal effects. It was noted that the subject incident occurred on October 20, 1978, which, of course, is approximately five weeks subsequent to Mr. Nichols' death. Additionally, Respondent credibly testified that she has a metabolic disease which prevents her from taking drugs, even for a cold. She testified that she has no use for drugs and per instructions from her physicians, cannot take any narcotics. Respondent testified that she has never used drugs nor has she sold them. In these circumstances, it is the undersigned's considered opinion that the above facts do not warrant disciplinary action as contemplated by Subsection 464.21(1)(d), Florida Statutes, and I shall, therefore, recommend that the Administrative Complaint filed herein be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED IN ITS ENTIRETY. RECOMMENDED this 31st day of October, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether Respondent has fostered, condoned, and/or negligently overlooked trafficking in and use of illegal narcotics and controlled substances on or about the licensed premises. Whether Respondent has failed to exercise due diligence in supervising his employees and managing his licensed premises so as to prevent the illegal trafficking and use of narcotics on the licensed premises. Whether Respondent may transfer his alcoholic beverage license to a qualified licensee or if it should be permanently revoked.
Findings Of Fact Respondent is the holder of alcoholic beverage license number 69-0876, series 2-COP, for a licensed premises known as Stormy Norman's, which is located at 3006 South U.S. 17- 92, Casselberry, Seminole County, Florida. On March 13, 1990, five patrons were observed passing and smoking a marijuana cigarette, just outside the rear door on the "patio". The "patio" is a fenced-in, partially covered area, which contains picnic tables and is located immediately behind the licensed premises. The patio is primarily accessible through the rear door of the licensed premises, which is usually left open during business hours. However, access could be made to the patio through the back of the premises onto the patio without knowledge of the Respondent as to who was there or what activity was going on. On March 13, 1990, a patron known as "Billy" sold marijuana to two different patrons on the patio. Subsequently, other patrons were observed dividing up marijuana into plastic bags, rolling "joints" and smoking marijuana on the patio. During this time, the rear door of the licensed premises was open and the smoke from the marijuana cigarettes was easily detectable inside the premises. Also, inside the licenses premises, several patrons openly discussed the purchase and consumption of controlled substances in the presence of employees. On March 14, 1990, a patron known as "Kelly" sold a plastic bag containing marijuana for the sum of $35.00. The sale was discussed in the presence of the bartender known as "Gordie". After this transaction, Kelly offered to sell large quantities of cocaine to Petitioner's investigators. On March 15, 1990, while Respondent was on the premises, several patrons rolled "joints", manufactured a "pipe" and smoked marijuana on the patio. These patrons would freely enter and depart the licensed premises from the patio and did nothing to conceal their activities. Inside the licensed premises, the patrons openly discussed the use of controlled substances and extended invitations to other patrons to consume the same on the patio. In addition, Kelly openly sold a baggy of marijuana to a patron, in plain view and in the presence of several other patrons and bartender Gordie. On March 20, 1990, several patrons were rolling and smoking marijuana cigarettes on the patio. A patron known as "Rabbit" sold and delivered marijuana to another patron known as "Stan". During this time, Respondent was on the licensed premises and was in a position to detect the use of controlled substances. On March 21, 1990, a patron Billy gave Petitioner's investigator a muscle relaxant in exchange for a beer, while in the presence of bartender Gordie at the licensed premises. During this time, Respondent was playing darts near the rear door of the licensed premises and was observed looking out the rear door and watching patrons smoke marijuana. While doing so, several patrons were heard to yell "He's out back doing drugs," in response to bartender Gordie's inquiry about another patron. On March 22, 1990, Petitioner's investigators made two controlled buys of marijuana while on the patio. One of the sellers was Respondent's day manager, known as "Little Dave". On the same date, while Respondent was on the licensed premises, several patrons were observed smoking marijuana on the patio, and other patrons were observed in possession of plastic bags containing marijuana inside the licensed premises. On March 28, 1990, Petitioner's investigator made a controlled buy of marijuana from Respondent's day manager, Little Dave. Just prior to this sale, the bartender known as "Cookie" was asked to make change for a marijuana purchase. In response thereto, Cookie smiled and freely made change for a twenty dollar bill. On this occasion, patrons openly smoked marijuana on the patio, the odor of which was easily detectable inside the licensed premises. On April 4, 1990, patrons were smoking marijuana on the patio, and the bartender Cookie had open conversations regarding the use of cocaine. On April 10, 1990, patron Stan sold marijuana on the patio to two patrons. On April 12, 1990, a patron known as "Fred" approached the bar to purchase a beer. While at the bar, Fred openly displayed two small white pills and a small quantity of marijuana on the bar counter in the presence of bartender Gordie. Subsequently, Fred went to the patio, where he was observed selling white pills to patrons, which were later determined to be "white- crosses". On April 18, 1990, several patrons were observed rolling and smoking marijuana cigarettes. On April 19, 1990, Respondent's day manager, Little Dave, sold a small plastic bag containing marijuana to Petitioner's investigator for $35 while on the patio. Throughout this transaction, there was a young boy, approximately 8 years of age, playing on the patio. Also, bartender Cookie went to the patio on three occasions while on duty to smoke a marijuana cigarette. On one occasion she was observed blowing marijuana smoke at bartender Gordie's face. During this general time period, Respondent was on the patio while several patrons were smoking marijuana. On April 24, 1990, Petitioner's investigator made a purchase of a small bag of marijuana in plain view of the bar while on the licensed premises. On April 25, 1990, several patrons were observed smoking marijuana on the patio of the licensed premises. At no time throughout the entire investigation did the licensee or any of his employees do or say anything to prevent employees from using or selling controlled substances on the licensed premises. The Respondent did not participate in the sale of any controlled substances or drugs, nor did he witness the sale of drugs at any time during the course of the investigation. Respondent was aware of customers smoking marijuana on the patio on several occasions and did not evict them from the premises. Respondent did ask Little Dave to leave the property on divers occasions when it was discovered that he was selling marijuana, but he was allowed to return to the premises. Respondent was taken advantage of by his friends and customers and was not aware that drug use was so prevalent, although he did know that at times some marijuana smoking was going on. Respondent seeks to transfer his beverage license, as provided by Section 561.3 2, Florida Statutes, to Elizabeth Ann Allen of Casselberry, Florida, who would qualify for a temporary license upon application for transfer as provided in Section 561.331, Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent's Alcoholic Beverage License Number 69- 0876, Series 2-COP be REVOKED. DONE AND ENTERED this 4th day of September, 1990, in Tallahassee, Leon County, Florida. DANIEL N. KILBRIDE 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 4 day of September, 1990. COPIES FURNISHED: Thomas A. Klein Assistant General Counsel Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000 Mark E. NeJame, Esquire 1520 E. Amelia Street Orlando, FL 32803 Leonard Ivey Director, DABT Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000 Joseph A. Sole Secretary Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000
The Issue The issue in this case is whether the Respondent’s license should be disciplined; and if so, what penalty should be imposed.
Findings Of Fact The Respondent, Lashawn R. Williams, was certified by the Petitioner as a correctional officer on May 22, 2001, and was issued certificate number 197081. Eventually, the Respondent was employed as a full-time correctional officer by the Corrections Corporation of America. Sometime prior to June 20, 2004, the Respondent’s apartment received smoke damage from a fire that had occurred in the unit next to her. Because of the damage, she and her two children, ages seven and one, were required to temporarily move while repairs to her apartment were being made. She moved in with Typhrus McNeil and his father, Connie McNeil at 112 Cheri Lane, Parker, Florida. The McNeil residence is a small two-bedroom townhouse of approximately eight hundred square feet. The front door is located about twenty feet from the street. Typhrus McNeil was the Respondent’s boyfriend. At the time, they had been dating for approximately three years. Mr. McNeil was the father of the Respondent’s youngest child and occasionally took care of the Respondent’s children while the Respondent was at work. At the time, Typhrus McNeil was also under community control for a 2004 drug charge. The Respondent Knew Mr. McNeil had a past criminal history, but felt he had changed. On June 20, 2004, Officer Aaron Wilson of the Parker Police Department received a “Crime Stoppers” tip. The tip consisted of an allegation that a male and a female person living at 112 Cheri Lane in Parker were engaged in the sale of narcotics from the residence. The tip also included an allegation that the female subject was conducting hand-to-hand narcotics transactions with the occupants of vehicles that pulled up outside the residence. Over the next two weeks, Officer Wilson conducted approximately six surveillances and observed activities ongoing at the McNeil residence. During his surveillances, Officer Wilson observed the Respondent coming and going from the residence along with her two children. He observed them playing outside. Officer Wilson also observed Typhrus McNeil, whom he recognized from past arrests, and his father Connie McNeil, coming and going from the residence. He observed vehicles driving up to the residence for short stops and leaving. On occasion, he observed people from the residence talking for a short time with the occupants of the vehicles, sometimes going back into the residence and then returning a short time later to talk with the occupants of the vehicles again. The vehicle would then leave the area. Officer Wilson described such activity as indicating drug-related activity was going on at the residence. Officer Wilson only observed the Respondent talk to the occupants of a vehicle one time. During his observation, the Respondent spoke with the occupants for a short while, went into the residence and returned to speak with the occupants of the vehicle some more. The vehicle then left. Officer Wilson did not observe the exchange of any money or drugs. There was no evidence regarding who the occupants of the vehicle were or whether the Respondent knew the occupants of the vehicle. This one observation does not clearly and convincingly demonstrate that the Respondent was engaged in drug related activity. On July 1, 2004, Officer Wilson applied for and obtained a warrant from the Circuit Court in Bay County to search for controlled substances and other related items in the McNeil residence. The warrant also authorized searches of persons and vehicles present at the residence. On July 2, 2004, Officer Wilson, together with several other officers, served the search warrant at 112 Cheri Lane in Parker. Upon arrival at the residence, Officer Wilson knocked and announced his authority and purpose for being there. Present in the residence were Typhrus McNeil, Connie McNeil, the Respondent, her two children and two visitors. Officers located and seized several items in the bedroom shared by the Respondent and Typhrus McNeil. These items were in plain view lying on the headboard of the bed. These included Typhrus McNeil’s wallet, which contained $1704 in cash, another $1335 in loose cash and an open box of clear plastic sandwich bags with $13 in cash protruding from the top of the box. The cash appeared to be in denominations of $20 or less. The Respondent believed the loose cash was from Mr. McNeil’s paycheck, which he had recently cashed. Next to the bed, officers located and seized a closed shoebox on the floor. Inside the shoebox, officers found a set of electronic scales consistent with the type utilized for weighing quantities of illicit drugs for purposes of sale. Also, officers located and seized two plastic bags containing cannabis residue along with two partially burnt cannabis cigarettes in a closed dresser drawer located in the bedroom. The evidence did not demonstrate that the Respondent knew about the contents of the shoebox or the dresser drawer. None of her personal effects were in the dresser drawer. There was no evidence showing the length of time the cigarettes had been in the drawer. In the common living room of the residence, officers located and seized a cannabis cigarette lying on top of the television adjacent to a remote control. The cannabis cigarette appeared to be in plain view of the occupants of the residence. However, there was no evidence of the length of time the cannabis cigarette had been on top of the television or that the Respondent had observed the cigarette there. In fact, the Respondent denies knowing about the activity at the McNeil home or the Marijuana cigarettes in the house. During the course of the execution of the search warrant, officers also located and seized several items in the second bedroom, occupied by Connie McNeil. These items included a box found in Connie McNeil’s closet, which contained suspected cannabis seeds and two partially burnt cannabis cigarettes located inside a nightstand drawer. Officers also located and seized nineteen clear plastic bags, each containing approximately one-half ounce of cannabis. The plastic bags were under the bed in the bedroom of Connie McNeil. Together, such quantities and packaging demonstrate that Connie McNeil was engaged in illicit drug sales and not simply possession of illicit drugs. However, the evidence did not demonstrate that the Respondent was aware of the activities of Connie McNeil or the contents of his room. During the course of the execution of the search warrant, officers also located and seized five partially burnt cannabis cigarettes located inside a closed kitchen drawer. Again, the evidence did not demonstrate that the Respondent was aware of the cigarettes in the kitchen drawer, especially in light of the fact that she was only staying temporarily at the McNeil residence. The McNeils and the Respondent were arrested and charged with drug possession and sale. The Respondent was also charged with child neglect. Eventually, all the charges were dropped against the Respondent. The aggregate weight of the cannabis seized by the officers was in excess of 20 grams. However, in this case, the evidence only raises suspicions that the Respondent may have known about the possession of marijuana in the McNeil residence. At the time, the Respondent was a temporary occupant of the residence, waiting for repairs to be completed on her apartment. The evidence is neither clear nor convincing that the Respondent actually knew of such possession. Likewise, the evidence did not demonstrate that the Respondent was aware of or engaged in any drug sales during her stay at the McNeil residence. The most incriminating evidence was not found in the bedroom where the Respondent slept, but in Connie McNeil’s bedroom or in closed drawers and boxes. The one cannabis cigarette that was in a common area does not clearly or convincingly demonstrate that the Respondent knew it was there or that she knew of any drug activity at the McNeil house. Finally, the evidence did not demonstrate the Respondent criminally neglected her children when she was staying at the home of one of the children’s father. Vague testimony regarding the possibility that living in close proximity to illicit drug activity might cause danger to the occupants of the home is not clear or convincing evidence that the Respondent is guilty of criminal child neglect. Given this lack of clear evidence, the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found not guilty of violations of Subsection 943.13(7), Florida Statutes, and that the Administrative Complaint be dismissed. DONE AND ENTERED this 1st day of March, 2006, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2006. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lashawn R. Williams Michael Crews, Program Director Division of Criminal Justice Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Division of Criminal Justice Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The parties stipulated as to the identification of all drugs seized and purchased by the investigators. The issues presented in this case are as follows: Whether the individual counts as set forth in the Notice to Show Cause took place as alleged; Whether Jerry Alden ("Alden") was an employee, agent or servant of the Respondent; Whether Respondent was culpably negligent in the supervision of the licensed premises. Both parties have submitted posthearing proposed findings of fact. A ruling has been made on each proposed findings of fact in the Appendix to this Recommended Order.
Findings Of Fact At all times pertinent to the allegations in the Notice to Show Cause, the Respondent, Michael George Shlepr, d/b/a Eau Gallie Inn, was the holder of a valid Alcoholic Beverage License #15-1912, series 4-COP, issued by the Petitioner to the Respondent for the Eau Gallie Inn located at 1841 Avocado Avenue, Melbourne, Brevard County, Florida. On January 22, 1986, Detective Bruce Triolo of the Melbourne Police Department ("MPD") entered the licensed premises as part of an undercover investigation of narcotics trafficking. Triolo was accompanied by a confidential informant who frequented the licensed premises and was well known by the patrons and employees of the licensed premises. During said evening, Triolo was approached by an individual known as Jerry Alden (and also referred to as "Jerry Holden" during the hearing), who asked Triolo if he wanted to buy marijuana. Triolo indicated he desired to purchase marijuana and thereafter met Alden in the parking lot of the licensed premises where Triolo purchased two bags of marijuana from Alden. On January 23, 1986, Triolo again entered the licensed premises as part of an undercover investigation. Triolo and Alden negotiated the sale of marijuana inside the licensed premises and Triolo met Alden in the picnic area adjacent to the building (see diagram in Petitioner's Exhibit 1) where Triolo purchased marijuana from Alden. This picnic area was included in the diagram of the licensed premises and made a part thereof at the suggestion of an agency employee after the undercover investigation of the licensed premises had begun. This area is irregularly shaped and has at least one entrance to it which cannot be observed from inside the licensed premises. On January 24, 1986, Triolo again entered the licensed premises as part of an undercover investigation. Triolo discussed purchasing marijuana from Alden. On this occasion, Alden asked the bartender, "Lynn," to hand him his jacket. Lynn brought Alden his jacket from a small office area behind the bar and gave it to Alden. Alden took a bag of marijuana from the jacket and delivered it to Triolo while they were sitting at the bar of the licensed premises. On January 28, 1986, Triolo entered the licensed premises as part of an undercover investigation and spoke with the bartender identified as "Bruce." Triolo asked Bruce where he could find Alden and was advised that Alden "was around." Triolo asked Bruce about purchasing marijuana and Bruce offered to sell Triolo one marijuana cigarette. Bruce took $1.50 from Triolo's change that was on the bar as payment for the cigarette. On January 31, 1986, Triolo entered the licensed premises as part of an undercover investigation. Triolo negotiated with Alden in the licensed premises the purchase of marijuana, which was delivered and paid for in the men's bathroom of the licensed premises by Alden. At that time, Alden asked Triolo if he was interested in purchasing any cocaine. Triolo said that he was and Alden left and returned in approximately 15 minutes. At that time, Alden met Triolo by the picnic table in the picnic area. Alden showed Triolo several cocaine rocks and sold Triolo one for $20.00. During the time that this transaction was taking place, the bartender, "Shawn," was standing at the back door of the licensed premises observing what was taking place in the picnic area. On February 25, 1986, Triolo entered the licensed premises with Agent Richard White of the Division of Alcoholic Beverages and Tobacco as part of an undercover investigation. Triolo purchased a bag of marijuana from Alden while sitting at the bar. Shawn, who was the bartender, handed Alden the bag of marijuana from behind the bar and Alden delivered the bag to Triolo. On February 26, 1986, Triolo entered the licensed premises as part of an undercover investigation. While there, he discussed the purchase of marijuana from "Marie," another patron. Marie delivered the marijuana to Triolo inside the licensed premises and Triolo passed the marijuana to White in the open while both men were sitting at the bar in the licensed premises. As part of an undercover investigation, on March 7, 1986, Triolo entered the licensed premises where he negotiated the purchase of a bag of marijuana with Alden. Alden only had one bag and a white female patron had also indicated she wanted to purchase a bag of marijuana. Alden met with the white female and Triolo at the picnic table in the picnic area and split the bag of marijuana between the white female and Triolo. On the same night, a patron, Brian Riordon, sold and delivered cocaine to Triolo in the parking lot of the licensed premises. On March 9, 1986, Triolo and White attended a party in the licensed premises for which they had purchased tickets as part of the continuing investigation. On this occasion, which was on a Sunday, Shlepr was present and served beer to Triolo and White at 11:57 a.m., contrary to Melbourne City Ordinance that prohibits the sale of alcoholic beverages prior to 1:00 p.m. on Sundays. On March 13, 1986, White entered the licensed premises as part of an undercover investigation with Triolo. White engaged in wagering on a game of liar's poker with another patron, "Tim," at the bar in front of the bartender. On March 14, 1986, Triolo entered the licensed premises and negotiated the purchase of marijuana with Alden. Triolo gave Alden $60.00; however, Alden returned and said he could not get the marijuana and gave Triolo his money back. The negotiations for the purchase took place in the licensed premises. On March 15, 1986, White entered the licensed premises with Triolo as part of their investigation. White began playing pool for money with Alden and another patron. The bartender, Lynn, was present and observed their gambling. On March 19, 1986, Triolo entered the licensed premises as part of an undercover investigation and discussed with Alden purchasing marijuana. Alden advised Triolo that "the marijuana was on its way over." In a short while, a white male patron, Dennis Thorp, arrived and delivered the marijuana to Alden, who in turn delivered it to Triolo. Subsequently, on March 19, 1986, Alden sold a stolen outboard motor to Triolo at an apartment in the vicinity of the licensed premises. The negotiations for the purchase of the stolen outboard motor took place on the licensed premises. On March 20, 1986, Triolo entered the licensed premises with White as part of an undercover investigation. Alden, with Dennis Thorp, sold and delivered marijuana to Triolo on the licensed premises. White engaged in a pool game with Alden for money on the same evening. As part of the continuing investigation, on March 26, 1986, Triolo entered the licensed premises where he discussed the purchase of marijuana with Alden. He subsequently drove Alden to a house in Melbourne which Alden entered and returned with several bags of marijuana. Alden explained that he had more orders for marijuana than he had bags of marijuana. As a result, the potential purchasers, to include Triolo, met with Alden at the picnic table in the picnic area at the Eau Gallie Inn where the bags were split. Triolo received part of a bag in return for driving Alden to pick up the drug. On April 1, 1986, Triolo entered the licensed premises as part of the ongoing investigation and discussed the purchase of marijuana with Alden. Alden sold and delivered marijuana to Triolo on the licensed premises. Subsequently, Alden approached Triolo with another white male, identified as "Ted" and discussed with Triolo the purchase of cocaine. Triolo gave money to Ted, and Ted and Shawn, a bartender at the Eau Gallie Inn, left the licensed premises together and returned with cocaine. Ted delivered cocaine to Triolo on the licensed premises. No evidence was received that Shawn was on duty the night in question. On April 3, 1986, Triolo entered the licensed premises as part of the continuing investigation. On this occasion he negotiated the purchase of marijuana from Alden and Thorp and cocaine from Alden and Ted on the premises. The cocaine was delivered in the picnic area. Evidence was not clear on where the marijuana was delivered. On April 4, 1986, Triolo entered the licensed premises as part of the continuing investigation. A patron, Mark Harrold, injected himself with drugs in the bathroom of the licensed premises while Detective Triolo guarded the door. On April 5, 1986, Triolo and White entered the licensed premises as part of the continuing investigation and spoke with Alden. A purchase of marijuana was negotiated and money was delivered by Triolo to Alden; however, when Alden returned with the marijuana, he had less marijuana than potential purchasers. Alden went into the kitchen area behind the bar where he split a bag and delivered half to Bruce, the bartender on duty, and half to Triolo. Alden approached White on the premises about purchasing a Colt revolver which Alden represented had been stolen. On April 9, 1986, Triolo entered the licensed premises as part of the continuing investigation. On this occasion, Alden delivered to Agent White in Triolo's presence, cocaine which White held up to the light and examined while standing at the pool table in the licensed premises. On said night, no marijuana was available for purchase; however, a number of people were in the picnic area smoking marijuana and free-basing cocaine. Also on April 9, 1986, Alden approached Triolo about purchasing some amphetamines. Alden left the premises and when he returned, sold to Triolo a substance represented to be amphetamines. However, upon analysis it was determined to be a caffeine derivative. Alden collaborated in this transaction with a patron known as "Doc Holliday." On the night of April 11/12, 1986, Agent White entered the licensed premises as part of the investigation. He discussed purchase of marijuana with Alden, who left the premises and returned after midnight. Alden delivered marijuana to White in the men's room. Shawn the bartender was in the toilet, came out, and saw Alden and White concluding the purchase of the drugs. Shawn asked if Alden would have a bag left which he could purchase. On April 15, 1986, Agent White brought up marijuana with the licensee, Shlepr, who was tending bar. Shlepr told White to put the marijuana back in his pocket; that he did not want to see it in the licensed premises. On April 16, 1986, Alden sold and delivered cocaine to Triolo on the licensed premises. Conflicting testimony was received concerning the status of Alden as an employee. The records of the licensed premises do not reflect Alden was an employee; however, the records of at least one other employee were also demonstrated to be incomplete or inaccurate. The licensee, Shlepr, testified that Alden was not an employee but was a regular patron who voluntarily would do helpful things around the licensed premises on occasion. Shlepr gave Alden free drinks on occasion in recognition of Alden's patronage and help. Triolo and White observed Alden on occasion taking beer from the stock room to the bar, clearing tables, and in one instance going next door to get Shlepr change. Triolo and White also observed that Alden had easy access to the area behind the bar, the small office behind the bar, the telephone, and cash register. Testimony was also received that during a portion of the investigation, Alden was dating one of the regular barmaids. Another of the regular bartenders testified Alden was not an employee. Based upon the most credible evidence, it is found Alden was not an employee; however, Alden was clearly permitted too much freedom in the licensed premises. The licensee, Shlepr, worked full-time on the evening shift at a local business in Melbourne at all times relevant to this complaint. He was on the premises from noon until the commencement of his shift and returned to the licensed premises after he got off work to close the licensed premises. He did not have a manager on the premises and the only employee present when Shlepr was not there was the bartender. The bartenders were given great freedom; one going so far as giving away drinks. The only two allegations which Shlepr could have observed or participated in were when Shlepr served the investigators beer on Sunday, March 9, and when White showed Shlepr marijuana on April 15. There is no allegation Shlepr had knowledge of the other incidents. Gary Michael Gordon was a substitute bartender during the period of the investigation at the Eau Gallie Inn, during which time and unto the present he was the Respondent's roommate. The identification of all the drugs mentioned above is accurate. There have been no previous disciplinary actions against this licensee. No evidence was introduced in support of counts 24 and 32. Respondent had no direct knowledge of the drug trafficking and gambling.
Recommendation Considering the fact that the violations of Sections 561.29(1)(a) and (c), Florida Statutes, arise primarily from acts of omission and not commission, and that only very minor and technical violations were attributable to the Respondent personally, it is recommended that the Respondent's license be suspended for six months; that he be fined $1,000; and that his presence or the presence of a responsible manager on the premises be required as a condition for continued operation. DONE AND ORDERED this 28th day of May 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 28th day of May 1986. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-1343 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties. Both Petitioner and Respondent filed proposed findings of fact in this case. These proposed findings were read, considered, and adopted unless the proposed finding was rejected for the reason stated. Rulings on Proposed Findings of Fact Submitted by Petitioner Adopted in paragraph 1. Adopted in paragraph 2. (NOTE: Petitioner's Proposed Findings of Fact contains two paragraphs numbered "3"; the paragraphs are herein referred to as Page 2, Paragraph 3, or Page 3, Paragraph 3. All other paragraphs in Petitioner's findings are referred to by their indicated number. Page 2, Paragraph 3 Adopted in part; rejected in part and rewritten in paragraph 25. Page 3, Paragraph 3 Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 8. Adopted in paragraph 9. Adopted in paragraph 10. Adopted in paragraph 11. Adopted in paragraph 12. Adopted in paragraph 13. Adopted in paragraph 14. Adopted in paragraph 15. Adopted in paragraph 16. Adopted in paragraph 17. Adopted in paragraph 18. Adopted in paragraph 19. Adopted in paragraph 20. Rejected; contrary to evidence. Adopted in paragraph 21. Adopted in paragraph 22. Adopted in paragraph 24. While the evidence taken as a whole might lead to this conclusory fact, this proposal is rejected. The facts surrounding the individual incidents are clear enough to permit the hearing officer to conclude that the Respondent knew or should have known about the conduct and was negligent in his supervision. Rulings on Proposed Findings of Fact Submitted by Respondent Respondent's repeated proposal that there was no evidence that Respondent had knowledge of the incidents is modified and adopted in paragraphs 29 and 30. Adopted. Rejected - argument. Reject first and last sentence as argument or summarization. Adopts second sentence in paragraph 25. Rejected; contrary to evidence. Description and nature of picnic area is addressed in paragraph 3. Adopted in paragraphs 2 and 3. Adopted in paragraph 4. Adopted in paragraph 5. 9&10. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 8. Adopted in paragraph 9. Adopted in paragraph 10. Adopted in paragraph 11. Adopted in paragraphs 12 and 14. Adopted in paragraph 14. Adopted in paragraphs 15, 16, 17, 18 and 20. Adopted in part in paragraph 29. Rejected in part as contrary to the evidence. Adopted in part in paragraph 20. Adopted in paragraphs 21, 22 and 24. Rejected as to Dowd and Taylor because they worked earlier shifts during the day when a different group of patrons were at the bar. Rejected as to Gary Gordon because of credibility. Rejected as contrary to evidence. Rejected as cumulative summary of specific findings relating to each charge. First sentence: Similar findings were made in paragraph 23; the remainder is rejected based upon lack of credibility. Adopted in paragraph 28. COPIES FURNISHED: Mr. Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927 Mr. James Kearny Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Bell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 David W. Dyer, Esquire Post Office Box 3648 Indiatlantic, Florida 32903
