03-000973 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco, vs. Harold Lee Hall, D/B/A Royal Blue Banquet Lounge Status: Closed Recommended Order on Friday, July 25, 2003.

Summary: Licensee`s efforts to keep drugs off club premises were sufficient, in light of evidence as a whole, to avoid revocation of license for negligence and drug-related nuisance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioners, )

)

vs. ) Case No. 03 - 0973

)

HAROLD LEE HALL, d/b/a ROYAL )

BLUE BANQUEST LOUNGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed - fact hearing was conducted in

this case on May 14, 2003, in Gainesville, Florida, before the

Division of Administrative Hearings by its duly - assigned

Administrative Law Judge, Ella Jane P. Davis.

APPEARANCES

For Petitioner: Kenneth W. Gieseking, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

F or Respondent: Gary S. Edinger, Esquire

304 Northeast 1st Street

Gainesville, Florida 32601

STATEMENT OF THE ISSUE

Counts 1, 2, 4, 5, 6, 7, 12, 13 and 14:

Whether, pursuant to Section 561.29(1)(a),

Florida Statutes, Respondent, by and t hrough

its agents, servants, and/or employees, did

knowingly or negligently permit another to

violate a state statute [Section 893.13,

Florida Statutes] to wit: possession of

cannabis (less than 20 grams) on the

licensed premises on the following dates:

September 9, 2001, October 28, 2001,

November 2, 2001, January 5, 2002, January

6, 2002, February 16, 2002, and March 3,

2002.

Count 3:

Whether, pursuant to Section 561.29(1)(a),

Florida Statutes, Respondent, by and through

its agents, servants, and/or e mployees, did

knowingly or negligently permit another to

violate a state statute [Sections 893.13 and

893.147, Florida Statutes] to wit:

possession of cannabis (less than 20 grams)

and possession of drug paraphernalia on the

licensed premises on October 2 8, 2001.

Count 8:

Whether, pursuant to Section 561.29(1)(a),

Florida Statutes, Respondent, by and through

its agents, servants, and/or employees, did

knowingly or negligently permit another to

violate a state statute [Sections 893.13 and

843.01, Florida Statutes] to wit:

possession of cocaine and resisting arrest

with violence on the licensed premises on

November 25, 2001.

Count 9:

Whether, pursuant to Section 561.29(1)(a),

Florida Statutes, Respondent, by and trough

its agents, servants, and/or emplo yees, did

knowingly or negligently permit another to

violate a state statute [Sections 893.13 and

893.13(1)(a), Florida Statutes] to wit:

possession of cannabis (more than 20 grams)

with intent to distribute on the licensed

premises on December 25, 2001.

Counts 10 and 11:

Whether, pursuant to Section 561.29(1)(a),

Florida Statutes, Respondent, by and through

its agents, servants and/or employees, did

knowingly or negligently permit another to

violate a state statute [Section 893.13,

Florida Statutes] to wit: sale of cannabis

and possession of cannabis (less than 20

grams) on the licensed premises on January

5, 2002.

Count 15:

Whether, pursuant to Section 561.29(1)(a),

Florida Statutes, Respondent, by and through

its agents, servants, and/or employees, did

knowingly or negligently permit another to

violate a state statute [Section 843.01

Florida Statutes] to wit: possession of

heroin on March 3, 2002.

Count 16:

Unlawfully maintaining a nuisance on the

licensed premises contrary to Sections

561.29(1)(a ) and 561.29(1)(c), Florida

Statutes, from September 9, 2001 through

March 3, 2002.

PRELIMINARY STATEMENT

On March 21, 2002, Petitioner, Department of Business and

Professional Regulation, Division of Alcoholic Beverages and

Tobacco (DABT), issued an Adm inistrative Action [sic. Complaint]

containing the foregoing charges.

On March 24, 2003, the case was referred to the Division of

Administrative Hearings.

At the disputed - fact hearing on May 14, 2003, Petitioner

presented the oral testimony of Linda Jern igan, Ernest Leroy

Wilson, Kevin Trahan, Ernest Graham, Guillermo Ramos, Janice

Kurnick, Justin Fulton, and Glenn William Abate, and had two

exhibits admitted in evidence, one of which was a composite

exhibit consisting of laboratory reports.

Respondent p resented the oral testimony of Harold Hall,

Ayide Borges, and Craigurory Jones, and had three exhibits

admitted in evidence.

A Transcript was filed in due course. Each party's

Proposed Recommended Order was timely - filed pursuant to their

agreed extended time frame, and has been considered.

FINDINGS OF FACT

1. At all times material, Respondent Harold Lee Hall has

operated a bar and banquet facility at 4562 N.W. 13th Street,

Gainesville, Florida. It is known as the Royal Blue Banquet

Lounge ("the Royal Blue").

2. Respondent holds Alcoholic Beverage License No. GA -

110314, Series 4COP, which permits the sale of alcoholic

beverages.

3. The Royal Blue is located very near a mobile home park.

Complaints concerning noise in the Royal Blue parking lot,

par ticularly car stereos with a "heavy bass," and complaints

that the Royal Blue's patrons' cars block ingress and egress

from the mobile home park have occasioned "increased patrol" by

the Gainesville Police Department (GPD) in and around the Royal

Blue.

4. When the Royal Blue closes, customers exit in droves

and tend to linger in the parking lot and in gas stations along

13th Avenue. Noise and disorderly behavior in the vicinity has

added to the interest of law enforcement, and caused the area to

be heavi ly patrolled.

5. Several times between September 8, 2001 and

March 3, 2002, 1/ when GPD officers and/or DABT special beverage

agents entered the Royal Blue, a thick smoke haze, which smelled

like cannabis (marijuana), rather than like mere retail tobacco

cigarettes, was present. Sometimes, an amplified voice

announced that law enforcement was present and that patrons

should not be drinking if they did not have an armband,

signifying legal drinking age, and that "smokes" should be put

out. All of the law enforcement officers believed these

announcements warned patrons to get rid of cannabis cigarettes

and "blunts." A "blunt" is a cannabis - laced cigar. While the

foregoing warnings are subject to multiple interpretations, the

fact that smoking toba cco was still permitted in the Royal Blue

during this period supports a finding that a drug warning was

intended. Also, on one occasion, the amplified voice warned

patrons who were carrying "shit," meaning cannabis or other

drugs, to get rid of it. This language is not reasonably

subject to an innocent interpretation. Although most of the

officers believed that on all occasions the amplified voice was

that of a deejay employed by Respondent, they all admitted that

they could not be sure that it even was a deejay.

6. On September 8, 2001, GPD Officers Rochelle and Neville

made three arrests in the Royal Blue within one hour for

possession of cannabis. Sgtahan then contacted Respondent

Hall and informed him of the arrests. He advised Mr. Hall that

R oyal Blue's security needed to be more diligent. Mr. Hall was

very willing to try to get his security to combat drugs. (Only

two arrests are charged in Administrative Complaint Counts 1 and

2 and for September 9, 2001)

7. On October 28, 2001, Officer R ochelle, with Officer

Fulton assisting, arrested Arnold Manuel for possession of a

cannabis cigarette Manuel threw on the floor. (See Count 3 of

the Administrative Complaint) The same day, a Mr. Dawkins was

given a Notice to Appear, which is the equivale nt of an arrest

with simultaneous release on the arrestee's own recognizance,

because the officers thought Mr. Dawkins also had thrown down a

cannabis cigarette. However, the officers could not locate

anything illegal on the floor in Mr. Dawkins' vicinity . (See

Count 2 of the Administrative Complaint)

8. On November 2, 2001, Messrs. Markham, Clark, and Young

were arrested inside the Royal Blue for smoking blunts. On the

same night, actually the morning of November 3, 2001, uniformed

DABT agents observe d marijuana cigarettes littered on the floor

of the club and clearly smelled cannabis in the air. Persons

presumed to be Royal Blue security guards permitted ready entry

for law enforcement and preceded DABT agents into the facility.

These persons wore n o specific identification as security guards

and immediately upon entry of the agents into the Royal Blue an

announcement to put out smokes was made. (See Finding of Fact

5) The room was still hazy and smelled of cannabis. Apparently

some time passed be fore a representative of management

approached the DABT agents. (See Counts 5, 6, and 7 of the

Administrative Complaint)

9. On November 25, 2001, Sgtahan observed Larry

Howard, a white male, making a hand - to - hand exchange of

narcotics for money with a black male in the pool room area of

the Royal Blue. Sgtahan followed Mr. Howard into the

bathroom and observed bagged cocaine on the counter, which

Mr. Howard then stuffed in his pocket. When Sgtahan asked

to see his hands, Mr. Howard compl ied, and two baggies of

cocaine fell to the floor. Officer Fulton then found more

cocaine. Mr. Howard then violently resisted arrest for

possession of cocaine. Three additional officers were required

to subdue him. Mr. Howard also was charged with resi sting

arrest with violence. (See Count 8 of the Administrative

Complaint)

10. Mr. Howard was apparently a friend of Antonio "Tony"

Hall. Antonio is Respondent Harold Hall's nephew. At all times

material to the Administrative Complaint, Antonio was emp loyed

by Howard Hall as a promoter and a member of the Royal Blue's

security staff. Howard Hall never considered Antonio to be the

head of his security staff, but many law enforcement officers

assumed Antonio was Royal Blue's head of security. The real

h ead of security at all times material to the Administrative

Complaint was Clyde Garrison.

11. On November 26, 2001, Sgtahan again contacted

Respondent Hall about problems with open narcotics use and

transactions and about ineffective security at the Royal Blue.

12. On Christmas Day, December 25, 2001, Albert Leggett

was standing in a semi - circle of 2 to 3 people in a Royal Blue

restroom when Officers Fulton and Rochelle entered. Mr. Leggett

attempted to flush something. He was deprived of a bag gie of

marijuana, 21 smaller baggies of marijuana, and a partially

smoked blunt. He was charged with possession with intent to

distribute, possession of paraphernalia, and resisting arrest

without violence. His potential customers fled and were not

appre hended. (See Count 9 of the Administrative Complaint)

13. On February 16, 2002, Larry Dotry was observed by

officer Graham on the Royal Blue's dance floor, smoking

"overhand" a blunt cigar. He was arrested for possession of

cannabis. Tests confirmed t hat the blunt seized was cannabis

contraband. (See Count 13 of the Administrative Complaint)

14. On some unspecified date, Officer Graham was attacked

in the Royal Blue's parking lot by a patron who had been ejected

from the Royal Blue by Royal Blue sec urity. The incident

occurred when Officer Graham assisted security by telling the

man he needed to stay outside.

15. On March 3, 2002, Vision Wilson a/k/a Songria McCoy

was present in a restroom of the Royal Blue and in possession of

a pill which, from all appearances, was a controlled substance,

methylenedioxy methamphetamine (MDMA), a/k/a "ecstasy." She

represented to Officer Kurnick that the pill was percocet, that

she did not have a prescription for percocet, and that she had

gotten the pill from a guy in the bar. The pill tested positive

for MDMA, heroin, and other substances. Ms. Wilson was arrested

and charged with possession of heroin. (See Count 15 of the

Administrative Complaint)

16. Also on March 3, 2002, Antonio Hall was leaning

against a car, talking to its occupant, in the parking lot of

the Royal Blue. At this time, Officers believed that Antonio

Hall was the head of the Royal Blue's security. Officer

Rochelle retrieved a small baggie of marijuana from the ground

at Antonio Hall's f eet, and he was charged with possession. The

charge was nolle prossed. There also was no competent evidence

presented in this disciplinary case that Antonio Hall dropped

the baggie for which he was arrested and charged. (See Count 14

of the Administrati ve Complaint)

17. DABT's expert from the FDLE crime lab clearly and

competently testified that the drugs were tested and found to be

the controlled substance(s) charged against each of the

arrestees as set out above. He also testified that in each

insta nce, the quantities of drugs involved in the arrests were

very small.

Q. And with respect to most of the items

that your lab analyzed, would you agree that

they were measurable in tenths of a gram.

A. Yes.

Q. Very small quantities?

A. Yes.

18. The largest amount of marijuana seized was 17.6 grams

which is a little more than one ounce, an amount capable of

being contained in only one third of a plastic sandwich baggie.

The cocaine (0.2 of a gram) was described as capable of filling

the bottom porti on of a baggie, and the MDMA and heroin were

mixed with other ingredients and the whole lot was contained in

a single, asprin - sized tablet. The Department's expert further

confirmed that it would be easy to conceal these quantities of

drugs on the body of a patron.

19. Although there was abundant evidence to show that the

foregoing arrests had taken place, and that the crime laboratory

had confirmed the presence of drugs in the materials seized from

patrons, there was no evidence presented that any of th e arrests

had led to criminal prosecutions or convictions. The record

does not exclude the possibility of plea bargains.

20. While DABT is not held to a criminal standard of proof

in this proceeding, it is relevant that there was no clear proof

that an y of the law enforcement action at the Royal Blue

resulted in the conviction of any of the accused individuals.

21. There is also no evidence that the licensee or Royal

Blue's employees actively participated in the foregoing illegal

acts or were running d rug sales out of the club. The arrest of

Antonio Hall on March 3, 2002, and subsequent nolle prosse of

the charges against him does not establish his involvement in

the drug trade or a pattern of benign neglect by the licensee.

22. Rather, it appears th at the drug use on the licensee's

premises was that of individual patrons (not employees) bringing

the narcotics for their own use into the Royal Blue. Arrests

for individual drug possession and use in Gainesville, Florida,

are not exclusive to the Royal Blue.

23. There have been a number of other arrests around the

Royal Blue property, mostly in the parking lot: two for

outstanding warrants, one for a stolen vehicle, and "possibly"

one for discharge of a firearm. No connection of any of the

miscreants to Respondent's employees was shown. The dates of

the foregoing events are unclear. The possible discharge of a

firearm may have been after March 3, 2002.

24. Respondent Harold Hall bought the premises in 2001.

The exact date of purchase is unclear. DABT's licensure file

indicates he was assigned an option to purchase the license by

one Antonio Hall in 1997. Whether this is the same Antonio Hall

who worked as a promoter and security guard does not appear of

record.

25. Sgtahan and Officer Graham each spoke with Harold

Hall, with the chief of security by whatever name, and with

Antonio Hall on numerous occasions about stopping disturbances

in the parking lot and stopping the presence of drugs anywhere

on the licensee's premises. Respondent Hall h as been present on

the licensed premises on many of the foregoing dates of arrest.

Sgtahan notified Mr. Hall of problems on almost every one of

the 24 weekends during the period material to the Administrative

Complaint. However, these contacts did no t necessarily equate

with full, serious, productive discussions of how to correct his

security problems. Respondent Hall's response on every such

occasion was the equivalent of "I'll talk to my security."

26. Also, on at least two occasions, law enfor cement

officers sat at length with Harold Hall and described methods to

keep drugs off the licensed premises. Overall, the officers

found Harold Hall receptive to any suggestions they had, and Mr.

Hall ultimately implemented most of their suggestions.

2 7. The time frame for Mr. Hall putting law enforcement

suggestions into effect is somewhat vague, and he most probably

did not begin in earnest to clean up the Royal Blue's situation

until after he was cited by DABT.

28. The Administrative Complaint in this cause was filed

March 21, 2002.

29. Respondent and his witnesses testified credibly that,

over time, they had instituted many changes in the Royal Blue's

operating procedure to address the problem of narcotics.

30. For awhile, Respondent employed off - duty GPD officers

as some of his security team, but a change in state law

prevented the continuation of this practice.

31. Harold Hall submitted a list of the names of his

security personnel to GPD. On the basis of background checks,

he terminated h is chief of security, Mr. Granger, and replaced

him with Mr. Craigurory Jones, who was already on the security

team. All new security personnel are now subject to background

checks.

32. All new security personnel had always been provided a

security empl oyees' handbook, but apparently they are now

required to read and adhere to it.

33. GPD provides Respondent updated lists of people to

watch out for. Respondent's security personnel, stationed at

the entrance, are provided by Harold Hall with a further

expanded list of persons, presumed to be troublemakers or drug

users, he has banned from the club. The security team is

charged with preventing banned individuals from entering the

club. If any of these people do manage to get inside the Royal

Blue, eith er the new bar manager or security personnel request

that they leave, security escorts them out, or the GPD are

called.

34. Persons entering the Royal Blue are required to show

identification, to empty their pockets and/or purses for

inspection, and to s ubmit to a thorough pat down search by

security personnel at the door.

35. A security "station" has been established in the

parking lot.

36. A security officer has been permanently posted in the

restroom known to be the most problematic.

37. A new dr ess code has been imposed to discourage the

"shorts and tee - shirt crowd" and younger patrons in general.

38. The music booked has been gradually shifted away from

rap to rhythm and blues so as to attract older, more mature,

more sedate patrons. Friday n ights are now devoted exclusively

to this type of patron. These events "card" at age 25 instead

of age 21.

39. Although Respondent's witnesses testified that new

restrictions had been imposed at certain banquet functions, such

as fraternity parties, it would appear that 21 remains the age

for entry to the Royal Blue on all nights except for Fridays,

and that at fraternity parties, arm bands are issued to persons

21 years of age or older. Under - age patrons, without arm bands,

are simply not permitted to drink. (See Finding of Fact 5,

concerning use of armbands)

40. The change that has had the greatest effect and the

one that was acknowledged by both GPD and DABT special agents

was Respondent's institution in September 2002, of a "no

smoking" policy. While this ban went into effect in September

2002, well before state law rendered it mandatory, it was not in

effect at any time material to the Administrative Complaint, nor

was it put into effect until six months after that complaint was

filed.

41. The consensus of Petitioner's and Respondent's

witnesses is that from the time "No Smoking" appeared on the

Royal Blue's outside marquee, drug control got easier. Because

anyone smoking anything is easier to spot in a "no smoking"

environment, a zero toleran ce on smoking largely results in a

zero tolerance on the use of cannabis. The Royal Blue's

security team or law enforcement officers making spot checks

have no trouble locating the offender and removing him.

42. The "no smoking" policy appears on t he outside

marquee. It is also posted inside and outside the Royal Blue's

front door. Hand bills have also been used to advise patrons

and potential patrons of the "no smoking" policy, of the zero

drug tolerance situation, and that the impossession of dr ugs

will be ejected and banned.

43. The "no smoking" policy is enforced through means

ranging from reminders of the policy to expulsion of offending

patrons. Any suspicion of smoking or drug use is met with a

request by the Respondent's bar manager or se curity personnel to

"put it out," followed by a request to leave and/or ejection by

security personnel, and/or management's call to the GPD for

assistance.

44. A flashing light system, operated from behind the bar

on each floor, has always allowed Respond ent's employees to

silently alert security personnel that assistance is needed.

Respondent's new bar manager testified she uses it to signal

security about any violation of the no smoking policy, about

suspected drug use, or impending violence.

45. Res pondent Hall admitted that currently, his deejay is

under instructions to announce regularly that patrons should put

out smokes and to regularly announce that law enforcement

officers are present, even when they are not present, so as to

deter tobacco smok ing, marijuana smoking, drug use, and under -

age drinking (no armband). These announcements still may result

in warning the offenders as suggested above in Finding of Fact

5, but it can also act as a deterrent.

46. Respondent's witnesses testified that t he changes were

specifically adopted to combat drug use and had resulted in

significant changes for the better at the Royal Blue.

47. Several of the law enforcement officers who testified

on DABT's behalf acknowledged that these changes improved

circumst ances at the Royal Blue. According to Officer Fulton,

while there is still some smoking going on, those persons who

may smoke marijuana on the premises are now readily identifiable

because the smoke can be seen emanating from them. He

testified:

At the b eginning of our time going into

Royal Blue, or at least at my time of going

into Royal Blue when I started increasing

patrol there, there were times that the

establishment was smokey and very loud, but

then there was a short time after that Mr.

Hall had pu t no smoking signs up in the

building and his security did try to keep

that down to a very, very low [sic], which

they did a good job of. And that made our

job a little bit easier to try and locate

people who were in violation of the no

smoking rule.

4 8. Two criticisms by law enforcement remain with regard

to the licensee. First, one or more prosecution witnesses felt

every person arrested on the premises, including in the parking

lot, should also have been "trespassed." To "trespass" someone

require s that the name be reported by Respondent to the GPD so

that if that person returns to the licensed premises, police

officers can remove him without new cause. Second, one or more

prosecution witnesses gave the impression that Respondent's

nephew, Antonio Hall, was the root of the drug problem as head

of security or just because he was on the premises. They felt

he should have been "trespassed" by Respondent after his arrest.

49. Apparently, Respondent has "trespassed" only some

patrons, but he does use the composite list referenced above at

Finding of Fact 33, to ban potentially troublesome people from

the Royal Blue. While it is true Antonio Hall was not

"trespassed" by Respondent, the Respondent did terminate Antonio

and replace him as a promoter and as a security guard.

Respondent Hall further testified that he sat down with Antonio,

after Antonio's background check came back, and told Antonio he

just could not be inside the Royal Blue anymore. All of

Respondent's witnesses testified that Antonio H all is currently

banned from coming into the Royal Blue.

50. The City of Gainesville Nuisance Abatement Board

instituted some form of proceeding against Respondent in 2003.

Respondent acknowledges that as many as 20 - 30 arrests have

occurred in the Royal Blue's parking lot since the indoor "no

smoking" policy was instituted, but denies that the Board's

proceeding was related to any issue other than noise.

Apparently, the Board's decision went against Respondent and he

has appealed, but the Board's Order is not in evidence.

Therefore, there is no competent evidence with regard to that

proceeding.

CONCLUSIONS OF LAW

51. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.57(1 ), Florida Statutes.

52. Respondent is charged in the Administrative Complaint

with 16 counts as set out in the Statement of the Issues, which

is adopted here by reference.

53. It is the duty of the Petitioner herein to go forward

and prove by clear and convincing evidence the elements of each

and every count. Dept. of Banking and Finance v. Osbourne Stern

& Co. , 670 So. 2d 932 (Fla. 1996)

54. Petitioner has not established clearly and

convincingly even the facts of the arrests alleged in Counts 4,

10, 11, and 12, let alone any involvement by "Respondent's

employees agents, or servants." Those Counts should be

dismissed outright.

55. The remaining counts, except for Count 14 pertaining

to Antonio Hall, an employee, and Count 16 pertaining to

"nuisance ," allege that Respondent Harold Hall, through his

employees, agents, or servants permitted named patrons on

specified dates to possess, use, sell, or deliver contraband

drugs on the licensed premises, in violation of Sections

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

the arrests alleged in these Counts 1, 2, 3, 5, 6, 7, 8, 9, 13,

and 15, have been established, but Respondent's responsibility

or lack of responsibility therefor are discussed below.

56. Count 14, alleges the same charge s pertaining to

Antonio Hall, an employee. The arrest of Antonio Hall was

proven, but the facts of contraband possession by Antonio Hall

or conviction of Antonio Hall was not proven. Respondent's

responsibility or lack of responsibility therefor are disc ussed

below.

57. Count 16, alleges that the licensed premises

constituted a public nuisance as defined by Section 823.10,

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

Statutes, and is discussed below.

58. Sub - Sections 561.29(1)(a) and (c), Florida Statutes,

provide 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

ap pearing of:

(a) Violation by the licensee or his or her

or its agents, officers, servants, or

employees, on the licensed premises, or

elsewhere while in the scope of employment

of any laws of this state or of the United

States, or violation of any munici pal or

county regulation in regard to the hours of

sale, service, or consumption of alcoholic

beverages or license requirements of special

license issued under Section 561.20, or

engaging in or permitting disorderly conduct

on the licensed premises, or per mitting

another on the licensed premises to violate

any of the laws of the state or of the

United States. A conviction of the licensee

or his or her or its agents, officers,

servants, or employees in any criminal court

of any violation set forth in this p aragraph

shall not be considered in proceedings

before the division for suspension or

revocation of a license except as permitted

by chapter 92 or the rules of evidence.

* * *

(c) Maintaining a nuisance on the licensed

premises.

59. Section 893.13(7) (a), Florida Statutes, provides in

pertinent part:

It is unlawful for any person:

5. To keep maintain any store, shop,

warehouse, dwelling, building, vehicle,

boat, aircraft, or other structure or place

which is resorted to by persons using

controlled su bstances 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.

60. Section 823.10(1), Florida Statutes,

provides in pertinent part:

(1) Any store, shop, w arehouse, dwelling

house, building, structure, vehicle, ship,

boat, vessel, or aircraft, or any place

whatever, which is visited by persons for

the purposes of unlawfully using any

substance controlled under chapter 893 or

any drugs as described in chapter 499, 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. Any perso n who

willfully keeps or maintains a public

nuisance or willfully aids or abets another

in keeping or maintaining a public nuisance,

and such public nuisance is a warehouse

structure, or building, commits a felony of

the third degree, punishable as provid ed in

section 775.082, section 775.083, or section

775.084.

61. Upon the situation as a whole, the undersigned, too,

might be suspicious of Antonio Hall's drug connections, but

there is no clear and convincing evidence that Respondent,

Antonio Hall, or any other of Respondent's employees dealt in

drugs or even possessed them. The issue then becomes: did they

turn a blind eye to drug use or drug sales?

62. An alcoholic beverage licensee's responsibility for

illegal acts committed by others on the lice nsed 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, (RO: October 2, 1991; adopted in

part or modified in FO: February 11, 1992) at paragr aph 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 suf fice

to subject the license to discipline,

especially not if the licensee had taken

measures to protect against the prohibited

acts by these persons. It is persistent and

recurring violations that may place the

license in jeopardy There, even acts of

sim ple 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, w rongdoing 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.

Repeat 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 repe ated

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 ,

311 So. 2d 138 (Fla. 1st DCA 1979); and

Lash, Inc., v. State of Florida, Department

of Busine ss Regulation , 411 So. 2d 276 (Fla.

3d DCA 1982).

63. Supporting the conclusion that a licensee should be

held responsible for the acts of his employees in turning a

blind eye toward flagrant drug dealing inside the licensed

premises are the following c ases: DABT v. Boyd d/b/a Get A Way

Bar and Lounge , DOAH Case No. 98 - 3701 (RO September 24, 1998

adopted in toto in FO: December 17, 1998); 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 Beverage and Tobacco , 403 So.

2d 1372 (Fla. 5th DCA 1981); Pic N' Save v. Division of

Alcoholic Beverage 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 (RO: May 31, 1995;

adopted in toto in FO: December 5, 1995); and Department of

Business Regu lation v. 3673 Bird, Inc. d/b/a Uncle Charlie's ,

DOAH Case No. 91 - 7901 (RO: December 24, 1991, adopted in toto in

FO: April 7, 1992).

64. However, the licensee's duty to prevent narcotic

violations is not absolute and does not impose vicarious or

absolut e liability. See Jones v. Dept. of Business Regulations ,

448 So. 2d 1109 (Fla. 1st DCA 1984) holding:

The licensee may be guilty of violating the

beverage law and of operating a nuisance if

he is guilty of intentional wrongdoing or if

he falls to exercise due diligence in

supervising and maintaining surveillance

over the licensed premises. . . There is no

evidence the licensee actually or

constructively permitted anyone to conduct

illegal drug activities on the premises.

Bach v. Florida State Board of Den tistry ,

378 So. 2d 34 (Fla. 1st DCA 1980). All of

the case cited involved a persistent and

practiced manner in which violations

executed by agents, servants, or employees

of the licensee led to the conclusion that

the licensee either condoned or negligent ly

overlooked the illegal activities. Those

cases also stand for the proposition that

the licensee is not absolute insurer against

violations of the law on his premises even

when committed by or through his employees

and that an isolated violation or inci dent

is not a basis for finding the existence of

a nuisance or a violation of the beverage

law and is not a basis for revoking a

beverage license.

65. Petitioner seeks a $1,000.00 fine for each first

occurrence of the misdemeanor counts and revocation o f the

license on the basis of the felony counts, but in the absence of

any proof of criminal conviction of the principal offenders or

collusion of Respondent's agents, servants, or employees in the

crimes charged against third parties, Petitioner's penalty goal

is not viable.

66. Even in those instances where there are multiple

violations of the law by patrons, the courts have stressed that

the license holder is not automatically subject to the loss of

his license. See Heifetz v. Department of Business Re gulation ,

475 So. 2d 1277 (Fla. lst DCA 1985), holding:

Although the recurring number of

transactions legally permits an inference

that appellant failed to exercise ordinary

care, the hearing officer acted within his

discretion in reaching a different infe rence

in light of other competent, substantial

evidence to the contrary. . .

The mere fact that the drug transactions

were persistent or recurring does not,

alone, require a finding, as a matter of

law, that the licensee failed to exercise

reasonable care or due diligence. . . .

Additionally, we point out:

[I]n those instances where courts have

sanctioned revocation by DBR because of

simple negligence on a licensee's part for

failing to exercise due care in the

supervision of agents or employees who

eng age in unlawful activity on the

licensee's premises, the courts have found

repeated and flagrant violations by the

employees which allow an inference that said

violations have been fostered, condoned, or

negligently overlooked by the licensee.

Charlotte Co unty Lodge v. Department of

Business Regulation , 463 So. 2d 1208, 1212

(Fla. 1st DCA 1985); accord Taylor v. State

Beverage Department , 194 So. 2d 321, 329

(Fla. 2nd DCA 1967); Lash, Inc., v.

Department of Business Regulation , 411 So.

2d 276; Bach v. Flori da State Board of

Dentistry , 378 So. 2d 34. "Flagrant," by

definition, means "glaring, notorious,

scandalous," or "flaming into notice." The

Compact Edition of the Oxford English

Dictionary, page 1014 (Oxford University

Press 1971). The evidence and the hearing

officer's findings of fact do not support

the conclusion that the drug activity in

appellant's lounge was flagrant. The

hearing officer was entitled to weigh the

surreptitious nature of the transactions,

i.e., lack of flagrancy, in determining th at

appellant was not negligent in supervising

his employees.

67. It is significant in the instant case that, although

the smoke haze and cannabis odor should have alerted Harold Hall

and the Royal Blue security team, the quantities of all drugs

actually verified by arrest and testing involved very small

amounts which are readily concealed in a patron's purse or

pocket, and it is conceded by law enforcement personnel that

drug use by any individual did not become subject to easy

identification and enforce ment until Respondent voluntarily

adopted a "no smoking" policy. The amplified announcement to

"get rid of your shit," does not pass "the smell test" for

innocence, but no employee of Respondent was identified as

having made the announcement, and the othe r amplified

announcements are subject to innocent interpretations.

68. The "no smoking" policy and subsequent format changes

have dramatically reduced the incidence of drug use at

Respondent's club.

69. Respondent has acted responsibly and effectivel y,

albeit in a delayed manner, to combat a drug problem among

patrons which, unfortunately, is not unique in Gainesville, nor

in the nation as a whole. The changes in Respondent's

procedures appear to be an appropriate response at the present

time to the level of law enforcement activity which has taken

place on the premises. Respondent has delayed, but not avoided,

his obligations as a license holder. These efforts constitute,

at the very least, mitigation of a revocable offense.

70. Upon the foregoin g analysis, there was insufficient

evidence present to conclude that Respondent maintained a

nuisance as charged.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED: that the Department of Professional

Regul ation, Division of Alcoholic Beverages and Tobacco enter a

final order dismissing the Administrative Complaint.

DONE AND ENTERED this 25th day of July, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P. DAV IS

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

Divisio n of Administrative Hearings

this 25th day of July 2003.

ENDNOTE

1/ Dates testified - to by DABT's witnesses are sometimes "off" by

one day from the dates listed in the Administrative Complaint

because much club activity occurs after midnight. These

dis crepancies have been reconciled to the Administrative

Complaint on that basis.

COPIES FURNISHED:

Kenneth W. Gieseking, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Gary S. Edinge r, Esquire

304 Northeast 1st Street

Gainesville, Florida 32601

Peter Williams, Director

Division of Alcoholic Beverages

and Tobacco

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Har dy L. Roberts, III, General Counsel

Division of Alcoholic Beverages

and Tobacco

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the ri ght 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.