98-003701 Division Of Alcoholic Beverages And Tobacco vs. Jimmy K. Boyd, D/B/A Get A Way Bar And Lounge Status: Closed Recommended Order on Thursday, September 24, 1998.

Summary: License should be revoked where employees ignored flagrant drug dealings on licensed premises.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

AND PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 98-3701

)

JIMMY K. BOYD d/b/a GET A WAY )

BAR & LOUNGE )

)

Respondent, )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on August 25, 1998, at West Palm Beach, Florida, before Claude B.

Arrington, a duly designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Miguel Oxamendi, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent: J. Steven Reynolds, Esquire

1803 Australian Avenue South, Suite A

Post Office Box 15782

West Palm Beach, Florida 33416

STATEMENT OF THE ISSUES

Whether Respondent's alcoholic beverage license

number 60-05660, series 2COP, should be disciplined based on the

alleged violations of the alcoholic beverage laws set forth in

the Notice to Show Cause dated August 14, 1998.

PRELIMINARY STATEMENT

On August 14, 1998, Petitioner served Respondent with an

Emergency Order of Suspension, which suspended Respondent's

alcoholic beverage license, and a Notice To Show Cause, which

underpins this proceeding. The Notice to Show Cause 1 alleged

certain facts pertaining to drug sales at the premises. Based on

those facts, Petitioner alleged in eleven separate counts three

distinct violations of the beverage laws. Counts 1 through 9

charged Respondent with permitting patrons to unlawfully possess,

sell or deliver controlled substances on the licensed premises,

in violation of Section 561.29(1)(a), Florida Statutes. Count 10

charged Respondent with maintaining a place used for keeping or

selling controlled substances in violation of Section

561.29(1)(a), Florida Statutes. Count 11 charged Respondent with

maintaining a nuisance on the licensed premises in violation of

Section 561.29(1)(c), Florida Statutes. The Respondent requested

a formal hearing under Section 120.57(1), Florida Statutes, the

matter was referred to the Division of Administrative Hearings,

and this proceeding followed.

A formal evidentiary hearing was held on August 25, 1998.

At the formal hearing, Petitioner presented the testimony of

Kent Stant on, Jennifer DeGidio, Beth R. Fisch, and Respondent.

Mr. Stanton and Ms. DeGidio are special agents employed by

Petitioner who conducted an undercover investigation of

Respondent's business. Ms. Fisch is a forensic chemist employed

by the Palm Beach County Sheriff's Office. Petitioner offered

five exhibits, each of which were accepted into evidence.

Without objection, Petitioner retained custody of its Exhibit 5,

which consisted of the cocaine that was purchased by the

Petitioner's undercover agents. In addition to his testimony

during Petitioner's case, Respondent testified on his own behalf

and presented the testimony of Scott Lyons, Kathy Harris, Ellie

Reardon, Shannon Dowding, Charles Acquaotta, and Paul Conlogue.

Mr. Lyons is a patron of Respondent's business who was accused of

dealing drugs on the premises. Ms. Harris, Ms. Reardon, and

Ms. Dowding are employed by Respondent's business as bartenders.

In addition, Ms. Reardon is Respondent's girlfriend and the

manager of Respondent's business. Mr. Acquaotta and Mr. Conlogue

are patrons of Respondent's business. Respondent offered no

exhibits.

The parties stipulated that the substances purchased by the

two undercover agents were kept in a proper chain of custody;

that the substances were appropriately analyzed and found to be

cocaine; and that cocaine is a controlled substance.

No transcript of the proceedings has been filed. Petitioner

and Respondent filed proposed recommended orders, which have been

duly considered by the undersigned in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Respondent Jimmy Karl Boyd is the holder of alcoholic

beverage license number 60-05660, series 2COP, for a licensed

premises known as Get A Way Bar & Lounge, located at 2517 North

Military Trail, West Palm Beach, Palm Beach County, Florida.

2. At all times pertinent to this proceeding, Ellie Reardon

was the girlfriend of the Respondent and the manager of the

premises. Shannon Dowding, who is Ms. Reardon's daughter, and

Kathy Harris were also bartenders at the establishment.

3. Petitioner initiated an investigation of the licensed

premises based on a complaint from Jim Falsia, a deputy with the

Palm Beach Sheriff's Office, that persons were dealing in stolen

property and drugs on the premises. 2

4. Kent Stanton and Jennifer DeGidio, special agents

employed by Petitioner, conducted the undercover investigation of

Respondent's business in cooperation with the Palm Beach County

Sheriff's Office. Before they entered the subject premises for

the first time, Agents Stanton and DeGidio were given certain

information, including identifying information pertaining to two

suspected drug dealers named William Howell and Scott Lyons.

5. As part of their investigation, Agents Stanton and

DeGidio entered the subject premises during late afternoon or

early evening on the following dates: June 18, 19, 23, and 26;

July 1, 15, 21, 23, 29, and 31; and August 4, 6, and 12, 1998.

After each of these visits, the undercover agents returned to

their office where they recorded their recollection of what had

transpired.

6. At all times, the two agents entered the premises

together. One or the other agent always wore a listening device

that was monitored by backup law enforcement officers.

7. Agents Stanton and DeGidio purchased quantities of

cocaine inside the subject premises on the following dates:

June 19; July 1, 15, 21, 23, 29, and 31; and August 6 and 12,

1998.

THE PREMISES

8. The premises are located in a commercial area that backs

up to an area of low income housing.

9. The premises consist of a parking area and a rectangular

shaped building with approximately 2,000 square feet. The

building has three doors.

10. There is no lighting other than that provided by the

open doors. The evidence established that there was adequate

light in the premises to observe the events pertinent to this

proceeding.

11. There is a long bar with a mirror on the wall that the

patrons face. The bartender on duty is usually stationed behind

the bar in the vicinity of the cash register, which is behind the

bar toward the eastern end of the bar.

12. There is a telephone at the eastern end of the bar that

patrons are free to use.

13. The door at the westerly end of the premises is off a

hallway in the vicinity of the men's room. This hallway is not

visible from where the bartender is usually stationed and is not

otherwise monitored.

14. There are four televisions that could be set on

different stations. One or more television was usually on.

There is a juke box. At the times pertinent to this proceeding,

the bar was cooled by two four-foot fans and an 18-inch fan

because the central air conditioning system was broken. There

were coolers behind the bar. Although the premises was noisy,

the evidence established that the noise did not prevent ordinary

conversation.

JUNE 18, 1998

15. The first time the undercover agents entered the

subject premises was Thursday, June 18, 1998. They observed

Respondent, Ellie Reardon, and two patrons drinking beer and

engaging in conversation. The agents only engaged in small talk

on that occasion.

16. No drugs were purchased by the undercover agents on

this date.

JUNE 19, 1998

17. On Friday, June 19, 1998, the two undercover agents

entered the premises and made contact with Respondent,

Ms. Reardon, and two patrons known to the agents only as "Rick"

and " Gabe." Agent DeGidio asked Rick if he knew where she could

"get something to party with." Rick replied, grass (slang for

marijuana) or powder (slang for cocaine). When Agent DeGidio

responded powder, Rick introduced her to another patron, William

Howell, and requested Howell to provide cocaine to Agent DeGidio.

Howell asked Agent DeGidio what she wanted, and Agent DeGidio

replied an "eight bail," which is slang for 3.5 grams of cocaine.

No employee of the Respondent was in a position to hear those

conversations. After Howell related the price, Agent DeGidio

returned to the bar area to Agent Stanton and asked him for

money. Agent Stanton openly handed Agent DeGidio approximately

$160.00. Ms. Reardon was in a position to observe this transfer

of money. Agent DeGidio returned to Howell and gave him $150.00.

Agent DeGidio and Howell returned to the bar area and Howell

picked up the phone from Ms. Reardon. Howell placed a brief

telephone call, and within a short time, Ms. Reardon picked up

the ringing telephone, and gave it to Howell. Howell then

departed the premises and returned shortly thereafter, whereupon

he handed Agent DeGidio a small plastic bag containing suspected

cocaine. Howell did not attempt to conceal the nature of the

transaction from Ms. Reardon, who was in position to observe the

transfer. The substance purchased on this occasion was

laboratory analyzed and found to contain cocaine.

JUNE 23, 1998

18. On June 23, 1998, the undercover agents returned to the

licensed premises. On this date, Agent DeGidio approached

employee Ms. Reardon and openly asked her if Howell was around

and whether he could "get us some stuff." Ms. Reardon began

looking for Howell, but did not take any other action regarding

Agent DeGidio's obvious drug request. When Howell arrived at the

premises shortly thereafter, he approached Agents DeGidio and

Stanton. Howell told Agent DeGidio that Ellie (Ms. Reardon) had

told him that she ( DeGidio) wanted some, meaning drugs. When

Agent DeGidio told Howell that she was looking for a gram of

cocaine, Howell said he would try, made a phone call, and

thereafter departed the premises. When Howell returned, he told

the agents that his cocaine supplier had not come yet.

19. No drugs were purchased by the undercover agents on

this date.

JUNE 26, 1998

20. On June 26, 1998, the undercover agents returned to the

licensed premises. On this date, Agent DeGidio made contact with

Howell regarding the purchase of cocaine. Howell placed a phone

call at the bar phone, and received a return call a few minutes

later. Howell informed Agent DeGidio that he could sell her

cocaine as soon as his supplier arrived. When Howell returned

and advised that his cocaine supplier had not arrived, the agents

departed. The evidence failed to establish that anyone employed

by Respondent heard this conversation.

21. No drugs were purchased by the undercover agents on

this date.

JULY 1, 1998

22. On July 1, 1998, Agents Stanton and DeGidio returned to

the licensed premises. On this date, Agent DeGidio made contact

with Howell regarding the purchase of cocaine. Their

conversation occurred at the bar less than two feet from Shannon

Dowding, who was tending the bar and in a position to hear the

conversation. Ms. Dowding took no action in response to this

conversation. Howell placed a call using the telephone at the

bar and received a return call seconds later.

23. Agent DeGidio approached Agent Stanton, who openly

handed her $60.00. Agent DeGidio then handed the money to

Howell. This exchange occurred in the middle of the bar in plain

view of Ms. Dowding, but no reasonable inquiry or action was

taken.

24. Howell later approached an unidentified patron and

called Agent DeGidio to where he was standing in the hallway in

the vicinity of the men's room. This area was not monitored or

supervised by the Respondent or his employees and was not visible

from the bar counter where the Respondent's bartender was

stationed. When Agent DeGidio arrived, Howell handed her a small

plastic bag containing cocaine. The substance purchased on this

occasion was laboratory-analyzed and found to contain cocaine.

JULY 15, 1998

25. On July 15, 1998, Agents Stanton and DeGidio returned

to the licensed premises. On this date, the agents met with

Kathy Harris, who was working as the bartender at the premises.

Ms. Harris answered the telephone at the bar and the caller asked

for Howell, but Howell was not on the premises. Agent Stanton

asked Ms. Harris if she knew whether Howell was coming to the

premises that day. When Ms. Harris replied that she did not

know, Agent DeGidio asked Ms. Harris if she knew someone who

could get the agents "something to party with." Ms. Harris told

the agents that Howell's "partner" was present. Ms. Harris then

brought the partner into the premises and introduced him to the

agents as "Scott," later identified as Scott Lyons. Agent

DeGidio then loudly asked Lyons, in the presence of Ms. Harris,

whether he could provide the agents "something to party with."

Agent DeGidio and Lyons then discussed availability and price of

the cocaine in the presence of Ms. Harris. When Agent Stanton

expressed concern over giving Lyons money before receiving

cocaine, Ms. Harris stated that Lyons could be trusted. Agent

Stanton then handed Lyons $60.00 and Lyons departed the premises.

Soon thereafter, Lyons returned to the premises and approached

Agent Stanton, who was sitting at the bar two feet from

Ms. Harris. Lyons handed Agent Stanton, at bar level, a small

plastic bag with a white powdery substance. At no time during

this transaction did Ms. Harris, or any other employee, take any

action to stop the drug transaction or even inquire about it.

The substance purchased on this occasion was laboratory-analyzed

and found to contain cocaine.

JULY 21, 1998

26. On July 21, 1998, Agents Stanton and DeGidio returned

to the licensed premises. On this date, the agents sat at the

bar, which was tended by Ms. Dowding. Agent DeGidio made contact

with Lyons, who was standing at the bar in front of Ms. Dowding,

and asked if he could "get some stuff." Lyons said that he

could, made another call using the bar phone, and departed the

premises. Lyons and Howell later entered the premises together.

Lyons approached Agent Stanton, and they discussed a cocaine

transaction. Agent Stanton openly handed Lyons $60.00. These

conversations were at normal speaking volumes and could have been

heard by anybody at the bar including Ms. Dowding. After

departing and then returning to the premises, Lyons approached

Agent Stanton, who was sitting at the bar three feet from

Ms. Dowding and four feet from Ms. Reardon, who had entered the

premises. Lyons handed Agent Stanton, at bar level, two small

clear plastic bags containing a white powdery substance. Agent

Stanton placed the small clear bags in the palm of his hand, and

then placed his hand at chest level and looked at the bags of

cocaine for a few seconds. Anybody at the bar was in a position

to see the bags in Agent Stanton's hand including Ms. Dowding and

Ms. Reardon. At no time did Ms. Dowding or Ms. Reardon take any

action to stop the drug transaction or inquire about it. The

substance purchased on this occasion was laboratory-analyzed and

found to contain cocaine.

JULY 23, 1998

27. On July 23, 1998, Agents Stanton and DeGidio returned

to the licensed premises. Agent Stanton went to the hallway by

the men's room and met with Lyons regarding the purchase of

cocaine. Agent Stanton handed Lyons $60.00. Approximately five

minutes later, Lyons approached Agent Stanton at the bar and

handed him at bar level two small clear plastic bags containing a

white powdery substance. Agent Stanton held the cocaine in his

palm and looked at it before placing it into his pocket. The

cocaine transfer could have been viewed by anyone sitting at the

bar, including a ten-year old boy, who was sitting next to Agent

Stanton, and Ms. Reardon. At no time did Ms. Reardon or any

other employee take any action to stop the drug transaction or

inquire about it. The substance purchased on this occasion was

laboratory analyzed and found to contain cocaine.

JULY 29, 1998

28. On July 29, 1998, Agents Stanton and DeGidio returned

to the licensed premises. On this date, Agent DeGidio met with

Howell regarding the purchase of cocaine and asked him, in the

presence of Ms.Dowding, for a gram. Howell walked to the end of

the bar where Ms. Dowding handed him the telephone. Howell

placed a call. When the phone rang moments later, Ms. Dowding

answered and handed the telephone to Howell. After a short

conversation, Howell told Agent DeGidio that she would have to

wait. Ms. Dowding was sitting right next to Howell during this

exchange. Shortly thereafter Ms. Dowding departed the premises

and was replaced by Ms. Reardon, who had arrived with a child

approximately ten years old. Agent DeGidio looked out the back

door and saw Howell and an unidentified male in an automobile

engaged in what appeared to be a hand-to-hand drug transaction.

Howell then reentered the bar and approached Agent DeGidio.

Agent DeGidio told Agent Stanton that Howell needed the money,

and Agent Stanton gave Howell $60.00 in the presence of

Ms. Reardon. Howell briefly walked out the back door, reentered

and handed Agent DeGidio two small clear plastic bags containing

a white powdery substance. The transfer occurred at the back of

the bar. At no time did Ms. Dowding or Ms. Reardon take any

action to stop the drug transaction or to inquire about it. The

substance purchased on this occasion was laboratory-analyzed and

found to contain cocaine.

J ULY 31, 1998

29. On July 31, 1998, Agents Stanton and DeGidio returned

to the licensed premises. On this date, Agent Stanton met with

Lyons regarding the purchase of cocaine. Later, Lyons signaled

Agent Stanton to walk to the hall by the men's room. Lyons

stated that he needed the money, and Agent Stanton gave Lyons

$60.00. Approximately ten minutes later, Lyons again signaled

Agent Stanton to go to the back of the bar. There Lyons handed

Agent Stanton two small clear plastic bags containing a white

powdery substance. The evidence failed to establish that any

employee of the Respondent was in a position to see these events

or hear these conversations. The substance purchased on this

occasion was laboratory-analyzed and found to contain cocaine.

AUGUST 4, 1998

30. On August 4, 1998, the undercover agents returned to

the premises, but they did not purchase any drugs.

AUGUST 6, 1998

31. On August 6, 1998, Agents Stanton and DeGidio returned

to the licensed premises. On this date, Agent DeGidio met with

Howell regarding the purchase of cocaine. Agent DeGidio obtained

$60.00 from Agent Stanton and handed it to Howell. Approximately

ten minutes later, Howell signaled Agent DeGidio to go to the

back of the bar in front of the men's restroom. Once there

Howell handed Agent DeGidio two small clear plastic bags

containing a white powdery substance. Ms. Reardon was in a

position to observe Agent Stanton give Agent DeGidio the money

that she subsequently gave to Howell. Ms. Reardon was not in a

position to see or hear the remaining events. At no time did any

employee take any action to stop the drug transaction or to

inquire about it. The substance purchased on this occasion was

laboratory-analyzed and found to be cocaine.

AUGUST 12, 1998

32. On August 12, 1998, Agents Stanton and Agent DeGidio

returned to the licensed premises. On this date, Agent DeGidio

again met with Howell regarding the purchase of cocaine. Howell

was standing in the back of the bar with employee Ms. Reardon,

Respondent, and an unknown patron. In the presence of these

people, Agent DeGidio asked Howell if he could "hook her up."

This question should have been construed by all who heard it as

an inquiry pertaining to drugs. Howell replied that he would

attempt to locate some cocaine for Agent DeGidio. Shortly

thereafter, Howell met with Agent DeGidio and told Agent DeGidio

that his usual source wasn't home, but he would see if he could

get it from someone else. After discussing price with Howell,

Agent DeGidio approached Agent Stanton and obtained $60.00 from

him. Agent Stanton counted out the money in front of Ms. Reardon

and Ms. Dowding and handed the money to Agent DeGidio. Agent

DeGidio then gave the $60.00 to Howell. Shortly thereafter,

Howell motioned for Agent DeGidio to come to the area of the

men's room, where he handed Agent DeGidio $10.00 3 and two paper

packets containing a white powdery substance. At no time did any

of the employees attempt to stop the transaction or to inquire

about it. The substance purchased on this occasion was

laboratory-analyzed and found to be cocaine.

33. Although the consummation of the foregoing transactions

was frequently in the area of the men's room, any reasonable

employee knew or should have known that the undercover agents

were purchasing drugs from Howell and Lyons. With the exception

of the transaction on July 31, 1998, at least a part of each

transaction was conducted in an open manner near the bar, where

the transaction could easily be viewed by the bartender on duty.

Ellie Reardon, Shannon Dowding, and Kathy Harris were aware of,

or should have been aware of, the drug activity. Respondent's

employees openly condoned it, to the point of actually directing

the agents to the sellers and vouching for the reliability of

Lyons.

34. The testimony of the Respondent and his employees that

they had no idea drugs were being bought and sold in the

establishment is rejected because that testimony is contrary to

the clear and convincing evidence of the two special agents and

to the multiple bags of cocaine that were produced as evidence.

NO RESPONSIBLE VENDOR TRAINING

35. Respondent took no action to prevent drug activity on

the premises. Respondent provided no Responsible Vendor Training

pursuant to Section 561.701, Florida Statutes. 4 The Respondent

never informed his employees that drug use and sales were not to

be tolerated on the licensed premises, nor did he instruct them

what they should do if they observed drugs being trafficked on

the premises.

36. Ms. Reardon, Ms. Dowding, and Ms. Harris testified that

they had been given appropriate vendor training by the

Respondent. This testimony is rejected as being contrary to the

Respondent's testimony.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

38. Petitioner bears the burden of proving the allegations

of the Notice to Show Cause by clear and convincing evidence.

Department of Banking and Finance v. Osborne Stern & Co. ,

670 So. 2d 932 (Fla. 1996).

39. Counts 1 through 9 of the Notice to Show Cause alleged

that Respondent, through his employees, permitted named patrons

(Howell or Lyons) on specified dates, to possess, sell, or

deliver cocaine on the licensed premises in violation of

Sections 893.13(1)(a) and 561.29(1)(a), Florida Statutes. The

respective dates of the alleged violations are the dates the

undercover agents purchased cocaine at the licensed premises.

40. Count 10 of the Notice to Show Cause alleged that

Respondent, through his employees, violated Sections

893.13(7)(a)5 and 561.29(1)(a), Florida Statutes, by keeping or

maintaining his licensed premises as a place that is used for

keeping or selling cocaine.

41. Count 11 of the Notice to Show Cause alleged that

Respondent, through his employees, kept or maintained his

licensed premises in such a manner that his premises constituted

a public nuisance as defined by Section 823.10, Florida Statutes,

and in violation of Section 561.29(1)(c), Florida Statutes.

42. The provisions of Section 561.29(1)(a), Florida

Statutes, pertain to Counts 1 through 10 of the Notice to Show

Cause. The provisions of Section 561.29(1)(c), Florida Statutes,

pertain to Count 11. Those provisions provide, in pertinent

part, as follows:

(1) The division is given full power and

authority to revoke or suspend the license of

any person holding a license under the

Beverage Law, when it is determined or found

by the division upon sufficient cause

appearing of:

(a) Violation by the licensee or his or

its agents, officers, servants, or employees,

on the licensed premises, or elsewhere while

in the scope of employment, of any of the

laws of this state or of the United States,

. . . or permitting another on the licensed

premises to violate any of the laws of this

state or of the United States. . . .

* * *

(c) Maintaining a nuisance on the licensed

premises.

43. Pursuant to Section 893.13(1)(a), Florida Statutes, it

is a violation of state law to sell, use, deliver, or possess

cocaine, which is a controlled substances as defined in

Section 893.03, Florida Statutes. Petitioner established by

clear and convincing evidence that the undercover agents

purchased quantities of cocaine on the licensed premises on nine

separate occasions. With the exception of the transaction on

July 31, 1998, a part of each transaction was in an open and

conspicuous manner.

44. There was no evidence that the Respondent or any of his

employees dealt in drugs.

45. The evidence was not clear and convincing that

Respondent personally knew that Howell and Lyons were dealing

drugs in the licensed premises.

46. The evidence was clear and convincing that the

bartenders employed by the Respondent knew or should have known

that Lyons and Howell were routinely dealing drugs on the

licensed premises and that the bartenders did nothing to stop or

discourage it.

47. Respondent provided no Responsible Vendor training

pursuant to Section 561.701, Florida Statutes, and is not

entitled to the benefits of Section 561.706, Florida Statutes. 5

48. Section 893.13(7)(a), Florida Statutes, reads in

pertinent part:

(7)(a) It is unlawful for any person:

* * *

5. To keep or maintain any store, shop,

warehouse, dwelling, building, vehicle, boat,

aircraft, or other structure or place which

is resorted to by persons using controlled

substances in violation of this chapter for

the purpose of using these substances, or

which is used for keeping or selling them in

violation of this chapter.

49. Section 823.10, Florida Statutes, provides as follows

with respect to places where illegal activity involving

controlled substances takes place:

Any store, shop . . . or any place whatever

which is visited by persons for the purpose

of unlawfully using any substance controlled

under chapter 893 . . . or which is used for

the illegal keeping, selling, or delivering

of the same, shall be deemed a public

nuisance. No person shall keep or maintain

such public nuisance or aid and abet another

in keeping or maintaining such public

nuisance.

50. An alcoholic beverage licensee's responsibility for

illegal acts committed by others on the licensed premises was

discussed in Department of Business Regulation, Division of

Alcoholic Beverages and Tobacco v. James Roy Crews d/b/a Roy's

Place , DOAH Case No. 91-5349, at paragraph 97:

[T]he licensee is not the absolute insurer

of the actions of his employees, servants or

agents or actions by patrons. He is not

strictly accountable for their conduct. When

misconduct occurs by one of those persons a

single incident would not suffice to subject

the license to discipline, especially not if

the licensee had taken measures to protect

against the prohibited acts by those persons.

It is the persistent and recurring violations

that may place the license in jeopardy.

There, even acts of simple negligence by an

employee would subject the licensee to the

penalties envisioned by Section 561.29(1),

Florida Statutes. Culpability by the

Respondent for the actions of agents,

servants and employees or patrons can occur

through his own negligence, wrongdoing or

lack of diligence. If he fosters, condones

or negligently overlooks the violations, even

if absent from the premises when they

occurred, he may be held accountable.

Repeated or flagrant violations by those

persons creates an inference that the

licensee condoned or negligently overlooked

the violations and is accountable for them,

even when absent. Respondent may not remove

himself from responsibility in this case by

reason of his absence from the premises or by

a claim of ignorance of the repeated

violations. See Pauline v. Lee , 147 So. 2d

359 (Fla. 2nd DCA 1962); G & B of

Jacksonville. Inc. v. Department of Business

Regulation, Division of Beverage , 371 So. 2d

138 (Fla. 1st DCA 1979); and Lash, Inc. v.

State of Florida, Department of Business

Regulation , 411 So. 2d 276 (Fla. 3rd DCA

1982).

51. Also supporting the conclusion that Respondent should

be held responsible for the acts of his employees in turning a

blind eye toward the flagrant drug dealing that occurred inside

the licensed premises are the following cases: Taylor v. State

Beverage Department , 194 So. 2d 321 (Fla. 2nd DCA) cert. den. ,

201 So. 2d 464 (Fla. 1967); Woodbury v. State Beverage

Department , 219 So. 2d 47 (Fla. 1st DCA 1969); Golden Dolphin #2,

Inc. v. Division of Alcoholic Beverages and Tobacco , 403 So. 2d

1372 (Fla. 5th DCA 1981); Pic N' Save v. Division of Alcoholic

Beverages and Tobacco , 601 So. 2d 245 (Fla. 1st DCA 1992);

Department of Business and Professional Regulation, Division of

Alcoholic Beverages and Tobacco v. McKown's, Inc. d/b/a The

Cabin , DOAH Case No. 94-5882; and Department of Business

Regulation v. 3673 Bird, Inc. d/b/a Uncle Charlie's , DOAH

Case No. 91-7901.

52. The Petitioner established by clear and convincing

evidence the allegations of all counts in the Notice to Show

Cause with the exception of Count 7, which pertained to the sale

on July 31, 1998. There was insufficient evidence to establish

that the Respondent's employees knew or should have known about

that transaction.

53. The guideline penalty for this violation, contained in

Rule 61A-2.022, Florida Administrative Code, is revocation of the

alcoholic beverage license. No separate civil penalty is

recommended because Petitioner did not establish that Respondent

had direct knowledge that Howell and Lyons were dealing drugs on

the premises.

RECOMMENDATIONS

Based on the foregoing findings of fact and conclusions of

law it is

RECOMMENDED that Respondent's alcoholic beverage license

number 60-05660, series 2COP, be revoked.

DONE AND ENTERED this 24th day of September, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of September, 1998.

ENDNOTES

1/ The allegations of the Notice to Show Cause are discussed in

generalities here and in the Conclusions of Law section of this

Recommended Order. Any question as to the specific contents of

the Notice to Show Cause should be resolved by reviewing the

Notice to Show Cause in its entirety.

2/ Respondent and Ms. Reardon had cooperated with Deputy Falsia

in the past in attempting to clear loiterers from the parking lot

of the bar and in keeping persons who had been banned for

fighting away from the bar.

3/ Howell explained to Agent DeGidio that he was charging $50.00

instead of the customary $60.00 because he had purchased the

cocaine from a different supplier who had a cheaper price.

4/ Section 561.705, Florida Statutes, sets out the requirements

for qualification as a responsible vendor:

To qualify as a responsible vendor, the

vendor must:

(1) Provide a course of instruction for

its employees that must include subjects

dealing with alcoholic beverages and may also

include subjects dealing with controlled

substances as follows:

(a) Laws covering the service of alcoholic

beverages and the operation of establishments

serving alcoholic beverages.

(b) Alcohol or controlled substances or

both as a drug and its effects on the body

and behavior, including its effects on a

person operating a motor vehicle.

(c) Effects of alcohol in combination with

commonly used drugs, both legal and illegal.

(d) Methods of recognizing and dealing

with underage customers.

(e) Methods for dealing with customers,

and for dealing with employees, who use or

traffic in illegal drugs.

(2) Provide an alcohol server management

course for managers of establishments that

sell alcoholic beverages. The course must

include subjects on alcoholic beverages and

may include subjects on controlled substances

as follows:

(a) Laws governing the service of

alcoholic beverages and the operation of

establishments serving alcoholic beverages.

(b) Development of standard operating

procedures for dealing with underage

customers.

(c) Development of standard operating

procedures for dealing with customers, and

for dealing with employees, who use or

traffic in illegal drugs.

(d) Methods of assisting employees in

dealing with underage customers and in

maintaining records that relate to such

incidents.

(3) Require each nonmanagerial employee

who is employed to serve alcoholic beverages

to complete the employee training course

specified in subsection (1) within 30 days

after commencing employment. The vendor must

provide for the supervision of such an

employee in the service of alcoholic

beverages until the employee has received

such training.

(4) Require each managerial employee to

complete the managerial training course

specified in subsection (2) within 15 days

after commencing employment.

(5) Require all employees to attend one

meeting every 4 months. Each meeting must

include the dissemination of information

covering the applicable subjects specified in

this section and an explanation of the

vendor's policies and procedures relating to

those subjects.

(6) Require each employee, as a condition

of her or his initial employment, to complete

a written questionnaire "providing the vendor

the same information as is required by the

division from persons who apply for alcoholic

beverage licenses and to determine therefrom

whether the employee is precluded by law from

serving or selling alcoholic beverages;

however, employees of vendors licensed under

s. 563.02(1)(a) or s. 564.02(1)(a) shall not

be subject to the requirements of this

subsection.

(7) Establish a written policy under which

any employee who engages in the illegal use

of controlled substances on the licensed

premises will be immediately dismissed from

employment and require each employee to

acknowledge the policy in writing.

(8) Maintain employment records ~f the

applications, acknowledgments, and training

of its employees required by this section and

records of the vendor's enforcement of the

policies requiring dismissal specified in

subsection (7).

(9) Post signs on the vendor's premises

informing customers of the vendor's policy

against serving alcoholic beverages to

underage persons and informing customers that

the purchase of alcoholic beverages by an

underage person or the illegal use of or

trafficking in controlled substances will

result in ejection from the premises and

prosecution.

5/ Section 561.706, Florida Statutes, states, in pertinent part,

as follows:

(1) The license of a vendor qualified as a

responsible vendor under this act may not be

suspended or revoked for an employee's

illegal sale or service of an alcoholic

beverage to a person who is not of lawful

drinking age or for an employee's engaging in

or permitting others to engage in the illegal

sale, use of; or trafficking in controlled

substances, if the employee had completed the

applicable training prescribed by this act

prior to committing such violation, unless

the vendor had knowledge of the violation,

should have known about such violation, or

participated in or committed such violation.

COPIES FURNISHED:

Miguel Oxamendi, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

J. Steven Reynolds, Esquire

1803 Australian Avenue South, Suite A

Post Office Box 15782

West Palm Beach, Florida 33416

Richard Boyd, Director

Division of Alcoholic Beverages

and Tobacco

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.

1 The allegations of the Notice to Show Cause are discussed in generalities

here and in the Conclusions of Law section of this Recommended Order. Any

question as to the specific contents of the Notice to Show Cause should be

resolved by reviewing the Notice to Show Cause in its entirety.

2 Respondent and Ms. Reardon had cooperated with Deputy Falsia in the past in

attempting to clear loiterers from the parking lot of the bar and in keeping

persons who had been banned for fighting away from the bar.

3 Howell explained that he charged Agent DeGidio $50.00 instead of the

customary $60.00 because he had purchased the cocaine from a different

supplier who had a cheaper price.

4 Section 561.705, Florida Statutes., sets out the

requirements for qualification as a responsible vendor:

To qualify as a responsible vendor, the

vendor must:

(1) Provide a course of instruction for

its employees that must include subjects

dealing with alcoholic beverages and may also

include subjects dealing with controlled

substances as follows:

(a) Laws covering the service of

alcoholic beverages and the operation of

establishments serving alcoholic beverages.

(b) Alcohol or controlled substances or

both as a drug and its effects on the body

and behavior, including its effects on a

person operating a motor vehicle.

(c) Effects of alcohol in combination

with commonly used drugs, both legal and

illegal.

(d) Methods of recognizing and dealing

with underage customers.

(e) Methods for dealing with customers,

and for dealing with employees, who use or

traffic in illegal drugs.

(2) Provide an alcohol server management

course for managers of establishments that

sell alcoholic beverages. The course must

include subjects on alcoholic beverages and

may include subjects on controlled substances

as follows:

(a) Laws governing the service of

alcoholic beverages and the operation of

establishments serving alcoholic beverages.

(b) Development of standard operating

procedures for dealing with underage

customers.

(c) Development of standard operating

procedures for dealing with customers, and

for dealing with employees, who use or

traffic in illegal drugs.

(d) Methods of assisting employees in

dealing with underage customers and in

maintaining records that relate to such

incidents.

(3) Require each nonmanagerial employee

who is employed to serve alcoholic beverages

to complete the employee training course

specified in subsection (1) within 30 days

after commencing employment. The vendor must

provide for the supervision of such an

employee in the service of alcoholic

beverages until the employee has received

such training.

(4) Require each managerial employee to

complete the managerial training course

specified in subsection (2) within 15 days

after commencing employment.

(5) Require all employees to attend one

meeting every 4 months. Each meeting must

include the dissemination of information

covering the applicable subjects specified in

this section and an explanation of the

vendor's policies and procedures relating to

those subjects.

(6) Require each employee, as a

condition of her or his initial employment,

to complete a written questionnaire

"providing the vendor the same information as

is required by the division from persons who

apply for alcoholic beverage licenses and to

determine therefrom whether the employee is

precluded by law from serving or selling

alcoholic beverages; however, employees of

vendors licensed under s. 563.02(1)(a) or s.

564.02(1)(a) shall not be subject to the

requirements of this subsection.

(7) Establish a written policy under

which any employee who engages in the illegal

use of controlled substances on the licensed

premises will be immediately dismissed from

employment and require each employee to

acknowledge the policy in writing.

(8) Maintain employment records ~f the

applications, acknowledgments, and training

of its employees required by this section and

records of the vendor's enforcement of the

policies requiring dismissal specified in

subsection (7).

(9) Post signs on the vendor's premises informing customers of the vendor's

policy against serving alcoholic beverages to underage persons and informing

customers that the purchase of alcoholic beverages by an underage person or

the illegal use of or trafficking in controlled substances will result in

ejection from the premises and prosecution.

Section 561.706, Florida Statutes, states, in pertinent

part, as follows:

(1) The license of a vendor qualified as

a responsible vendor under this act may not

be suspended or revoked for an employee's

illegal sale or service of an alcoholic

beverage to a person who is not of lawful

drinking age or for an employee's engaging in

or permitting others to engage in the illegal

sale, use of; or trafficking in controlled

substances, if the employee had completed the

applicable training prescribed by this act

prior to committing such violation, unless

the vendor had knowledge of the violation,

should have known about such violation, or

participated in or committed such violation.