STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, )

DIVISION OF BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 76-2219

)

INTIMO LOUNGE, INC., )

t/a INTIMO LOUNGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at 9:00 A.M., on the 28th day of January, 1977, at 7880 N.W. 36th Street, Miami, Florida.

APPEARANCES

For Petitioner: William Hatch, Esquire

Division of Beverage The Johns Building 725 Bronough Street

Tallahassee, Florida 32304

For Respondent: Nathaniel Barone, Esquire

777 Northeast 79th Street Miami, Florida 33138

For Mortgagee: Michael B. Solomon, Esquire

Theodore M. Trushin, Law Office

420 Lincoln Road, Number 600 Miami Beach, Florida 33139

ISSUES

1. Whether or not on or about September 28, 1976, one Leouigildo Hernandez, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in his possession, on the aforementioned beverage license premises, a controlled substance, to wit; cocaine, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S.

   
   

2. Whether or not on or about September 28, 1976, one Leouigildo Hernandez, an agent, servant or employee of the beverage license premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in his possession, with the intent to sell, a controlled substance; cocaine, and whether said cocaine was sold to one E. Santiago, for the price of $100 in U.S. currency, and whether said sale was consummated at the aforementioned beverage license premises, on

   the aforementioned date, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S.

   
   

3. Whether or not on or about October 30, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage license premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, on the aforementioned beverage license premises, a controlled substance, to wit; cocaine contrary to Section 893.13, F.S. thereby violating Section 561.29, F.S.

   
   

4. Whether or not on or about October 30, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage license premises of Intimo Lounge, Inc. d/b/a Intimo Lounge, did have in her possession, with the intent to sell, a controlled substance, to wit; cocaine, and whether or not said cocaine was sold to one E. Santiago, for the price of $100 U.S. currency, and whether or not said sale was consummated at the aforementioned beverage licensed premises on the aforementioned date, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S.

   
   

5. Whether or not on November 4 & 5, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, on the aforementioned beverage licensed premises, a controlled substance, to wit; cocaine, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S.

   
   

6. Whether or not on or about November 4 & 5, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, with the intent to sell, a controlled substance, to wit; cocaine, and whether or not said cocaine was sold to one E. Santiago, for the price of $2,200, U.S. currency, and whether or not said sale was consummated at the aforementioned beverage licensed premises, on the aforementioned date, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S.

   
   

7. A count seven was originally charged against the Respondent, but that charge was dismissed at the commencement of the hearing.

   
   

8. A count eight was originally charged against the Respondent, but that charge was dismissed at the commencement of the hearing.

   
   

9. Whether or not on or about November 20, 1976, a bottle of non-tax paid alcoholic beverage, labeled Ron Medeliin Rum, was discovered on the licensed premises, and whether or not said bottle bore no federal strip stamp or any other indication that the lawfully levied federal and/or state taxes had been paid, contrary to Section 562.16, F.S., thereby violating Section 561.29, F.S.

   
   

10. Whether or not on or about September 1, 1976, and continuing until on or about November 24, 1976, the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did maintain a public nuisance, to wit; maintain a place where controlled substances were illegally sold, kept or used, contrary to Section 823.10, F.S., thereby violating Section 561.29, F.S.

    
    

11. Whether or not investigation revealed that on or about November 20, 1976, the Respondent, its agent, servant, or employee, did remove, deposit, or conceal a beverage, to wit, one (1) 2,000 cc bottle of Ron Medeliin Rum, with

the intent to defraud the state of tax, contrary to Section 562.32, F.S. and Section 562.30, F.S., thereby violating Section 561.29, F.S.

FINDINGS OF FACT

1. At all times material to this complaint the Respondent, Intimo Lounge, Inc., d/b/a Intimo Lounge, was the holder of a license no. 23-1901, held with the State of Florida, Division of Beverage, and that license was for the premises located at 1601 Collins Avenue Miami Beach, Florida.

   
   

2. The management of the licensed premises makes arrangements to hire entertainment in the form of musicians. This arrangement is made through agreement with the band leader. One of these agreements was made with a band leader who had as his band member Leouigildo Hernandez. On September 28, 1976, Officer E. Santiago, of the Miami Beach, Florida, Police Department entered the licensed premises and while in the licensed premises entered into discussion with Hernandez. Hernandez left the bar proper and came back with an amount of a substance known as cocaine. Santiago paid Hernandez $100 for the quantity of cocaine and the sale was consummated in the licensed premises.

   
   

3. On October 30, 1976, Officer Santiago returned to the licensed premises. Santiago had been in the licensed premises many times prior to that occasion. Among the persons he had seen in the bar was Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales. Morales was the girlfriend of Anthony Bilbao, one of the principals in the ownership of the licensed premises. Morales had also served Santiago drinks in the bar on more than 50 occasions.

   On the evening in question, October 30, 1976, discussion was entered into between Santiago and Morales about the purchase of a substance known as cocaine. Morales produced a quantity of the cocaine and reached across the bar that she was standing behind and handed the quantity of the substance cocaine to Santiago, who was in the area where customers were served at the bar. Santiago paid her $100 for the cocaine.

   
   

4. In the late hours of November 4 and early hours of November 5, 1976, Santiago again entered the licensed premises, his purpose for going to the licensed premises was to purchase a large quantity of cocaine from Morales.

   This arrangement had been entered into based upon the sample of cocaine that had been provided him on October 30, 1976. Morales left the licensed premises and returned 3 to 5 minutes later with a quantity of cocaine, for which Santiago paid her $2,200.

   
   

5. On one of the above occasions of a purchase of cocaine from Morales, while in the licensed premises, Morales had conferred with Anthony Bilbao. In the course of that conference, Bilbao told Morales to be careful to whom she sold because "you don't know him", meaning Santiago.

   
   

6. In the course of an investigation in the license premises on November 28, 1976, a bottle of non-tax-paid alcoholic beverage, labeled Ron Medeliin Rum, was discovered in the licensed premises, which bore no federal strip stamp or any other indication that the lawfully levied federal and/or state taxes had been paid. The size of the bottle was 2,000 cc.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction in this cause.

8. It is concluded as a matter of law that the Petitioner has failed to show that the cocaine which Leouigildo Hernandez had in his possession on the aforementioned beverage licensed premises, a controlled substance, to wit; cocaine, in violation of Section 893.13, constitutes a violation by the Respondent of that law and therefore the Petitioner has failed to show a violation of Section 561.29, F.S.

   
   

9. It is concluded as a matter of law that the Petitioner has failed to show that the cocaine which Leouigildo Hernandez had in his possession with the intent to sell on the licensed premises on September 28, 1976, in violation of Section 893.13, F.S., constitutes a violation of that law by the Respondent, and therefore the Petitioner has failed to establish the violation of Section 561.29, F.S., on the cart of the Respondent.

   
   

10. It is concluded as a matter of law that on October 30, 1976 one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage licensed premises of the Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, on the aforementioned beverage licensed premises, a controlled substance, to wit; cocaine, contrary to Section 893.13, F.S., thereby establishing a violation of Section 561.29, on the part of the Respondent.

    
    

11. It is concluded as a matter of law that on or about October 30, 1976, one Thelma Bilbao, a/k/a-Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, with the intent to sell, a controlled substance, to wit; cocaine, said cocaine was sold to one E. Santiago for the price of $100 in U.S. currency and said sale was consummated on the aforementioned licensed premises on the aforementioned date, in violation of Section 893.13, F.S., thereby establishing a violation of Section 561.29 on the part of the Respondent.

    
    

12. It is concluded as a matter of law that on November 4 & 5, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, on the aforementioned licensed premises, a controlled substance, to wit; cocaine, contrary to Section 893.13, F.S., thereby establishing a violation of Section 561.29, on the part of the Respondent.

    
    

13. It is concluded as a matter of law that on or about November 4 & 5, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, with the intent to sell, a controlled substance, to wit; cocaine and said cocaine was sold to one E. Santiago, for the price of $2,200 U.S. currency, and was consummated at the aforementioned licensed premises on the aforementioned date, contrary to Section 893.13, F.S., thereby establishing a violation of Section 561.29, on the part of the Respondent.

    
    

14. It is concluded as a matter of law that on or about November 20, 1976, a bottle of non-tax paid alcoholic beverage, labeled Ron Medeliin Rum, was discovered on the Respondent's licensed premises, and said bottle bore no federal strip stamp or any other indication that the lawfully levied federal and/or state taxes had been paid, contrary to 562.16, F.S., thereby establishing a violation of Section 561.29, F.S., on the part of the Respondent.

15. It is concluded as a matter of law that on or about September 28, 1976, and continuing until on or about November 5, 1976, the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did maintain a public nuisance, to wit; maintain a place where controlled substances were illegally sold, kept or used contrary to Section 823.10, F.S., thereby establishing a violation of Section 561.29, on the part of the Respondent.

    
    

16. It is concluded as a matter of law that on or about November 20, 1976, Respondent, its agent, servant or employee, did conceal a beverage, to wit; one

(1) 2,000 cc bottle of Ron Medeliin Rum with the intent to defraud of tax, contrary to Section 562.32, F.S., thereby establishing a violation of Section 561.29, on the part of the Respondent.

RECOMMENDATION

Based upon the violations as established in the hearing on the notice to show cause, it is recommended that the license no. 23-1901 held by Respondent, Intimo Lounge, Inc., d/b/a Intimo Lounge, be revoked.

DONE AND ENTERED this 24th day of February, 1977, in Tallahassee ,Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

William Hatch, Esquire Michael B. Solomon, Esquire Division of Beverage Theodore M. Trushin, Law Office The Johns Building 420 Lincoln Road, Number 600

725 Bronough Street Miami Beach, Florida 33139 Tallahassee, Florida 32304

Nathaniel Barone, Esquire 777 N.E. 79th Street Miami, Florida 33138

Docket for Case No: 76-002219

Orders for Case No: 76-002219