vs. ) CASE NO. 83-3009
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on November 9, 1983, in Tampa, Florida. The hearing officially closed November 28, 1983. The parties were afforded leave to submit posthearing memoranda supportive of their respective positions. Posthearing memoranda received were considered by me in preparation of this Recommended Order. 1/
For Petitioner: James N. Watson, Jr., Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Joseph L. Diaz, Esquire
The issue presented herein, summarily stated, is whether or not the Respondent has allowed, fostered, condoned and/or negligently overlooked the trafficking in illegal narcotics and controlled substances on or about its licensed premises and has failed to exercise due diligence in supervising its employees and managing its licensed premises so as to curtail or prevent the illegal trafficking of illegal narcotics at its licensed premises.
Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, posthearing memoranda and the entire record compiled herein, I hereby make the following relevant findings of fact.
Del Sol Enterprises, Inc., is a corporate entity which holds alcoholic beverage license number 39-2182, series 2-COP, and does business as THE PARADISE
INN, located at 3513 North 22 Street, Tampa, Hillsborough County, Florida. John Gatto, Jr. is the President and sole corporate stockholder of Del Sol Enterprises, Inc., the Respondent corporation.
On several dates during the period July 26 through approximately August 26, 1983, Officer Keith Hamilton of the Division of Alcoholic Beverages and Tobacco (Petitioner herein) and Tampa Police Department Officers, Chester L. Copeland, Corporal Vincent Rodriguez and Officer Frank L. Swope, conducted several surveillance and/or investigations of the licensed premises.
Specifically, on July 26, 1983, Officer Keith Hamilton, a beverage officer employed by the Petitioner since approximately December, 1980, who is trained in the enforcement of beverage and tobacco laws, entered the licensed premises for the purpose of ensuring that the beverage and tobacco laws were being enforced. Officer Hamilton observed two black males seated in the southeast corner of the bar smoking a marijuana cigarette. Officer Hamilton observed the fact that the cigarette being smoked by the two black male patrons was not cylindrical but was, rather, irregular in shape. Officer Hamilton also noted the smell of the burning substance and the manner in which it was inhaled. At no time did any employee of Respondent make an effort to stop the above- referred behavior by the two black male patrons which was observed by Officer Hamilton.
The following day, July 27, 1983, Officer Hamilton again entered the licensed premises. He engaged the off-duty barmaid, Vickie Jean Washington, in conversation. During the conversation, barmaid Washington was approached by an unknown black female who inquired if she (Washington) possessed any marijuana for sale. Officer Hamilton thereafter asked Washington if she could obtain some marijuana for him, giving her ten dollars in U.S. currency for the purchase of same. Washington exited the premises and, upon returning, informed Officer Hamilton that there was no marijuana worth purchasing. Later that evening, Washington asked Officer Hamilton if he desired some cocaine. Officer Hamilton gave Washington twenty dollars in U.S. currency and Washington produced two foil packs containing a substance later analyzed and identified by the FDLE crime laboratory as cocaine.
The cocaine purchased by Officer Hamilton was maintained in his custody and control until it was turned over to beverage officer John T. Allen. Officer Allen maintained custody of the substance until it was placed into the evidence vault at the FDLE crime laboratory in Tampa, Florida. Officer Allen is responsible for the transportation of all evidence from the Petitioner to the FDLE crime laboratory for analysis. During the transportation of evidence in his custody, Officer Allen ensures that all evidence in his custody is properly marked and sealed and FDLE crime laboratory technicians who are responsible for logging and transferring submissions to analysts for analysis, ensure that all submissions received follow the FDLE crime laboratory policies and procedures for the receipt of submissions for analysis. Additionally, FDLE chemists who receive submissions for analysis will not perform an analysis upon a submission which is in any manner a departure from the FDLE crime lab's policies and procedures. (Testimony of FDLE crime laboratory technicians Myrtis Smith and Priscilla Miller, and FDLE crime lab analyst Anthony Ziberna)
On July 28, 1983, Officer Hamilton again entered the licensed premises in an undercover capacity. Hamilton again met with off-duty barmaid Washington and observed Washington ingest the contents of two foil packages while standing at the bar (in the licensed premises) in open view. Officer Hamilton observed barmaid Washington break the substance of the foil packs upon the bar into small
grains, lick the empty foil pack, and discard it on the floor. She proceeded to ingest the powder into her nose in a snorting manner. While on the premises that date, Officer Hamilton also purchased a small clear packet containing suspected marijuana from off-duty barmaid Washington. Officer Hamilton purchased the packet, which later was identified as marijuana by the FDLE crime laboratory, for ten dollars in U.S. currency. During the negotiation for the purchase of the marijuana, Officer Hamilton inquired of Washington if she was afraid to "do" the cocaine by the door and she responded that it was "okay." During the above transactions with off-duty barmaid Washington and her ingestion of the suspected cocaine, no one in the position of authority on the licensed premises attempted to stop either activity.
After exiting the licensed premises, Officer Hamilton maintained complete custody and control of the suspected marijuana until such time as he turned it over to Officer Allen who properly marked the substance, maintained complete custody and control of it until it was turned over to the FDLE crime laboratory for analysis.
On July 29, 1983, Officer Hamilton again entered the licensed premises. Upon entering the licensed premises, Officer Hamilton spoke with a black female who related that she was one of the managers of the licensed premises. While engaged in conversation with this black female, Officer Hamilton observed another black male snorting a "line" of suspected cocaine on the bar. Upon pointing this out to the female manager, no action was taken on her part to stop said activity.
While on the licensed premises, Officer Hamilton was also approached by a black male who sold him a foil pack containing a substance, later identified as cocaine upon analysis by the FDLE crime laboratory, in exchange for ten dollars in U.S. currency. The substance was properly maintained under the custody and control of either Officers Hamilton, Allen, or analysts at the FDLE crime laboratory.
On August 1, 1983, Officer Hamilton was again in the licensed premises. While there, Officer Hamilton observed several patrons smoking marijuana in the licensed premises. Hamilton inquired of the manager whether or not he had some marijuana and was advised that no one had any on this occasion. Officer Hamilton then departed the licensed premises.
On August 2, 1983, Officer Hamilton again was on the licensed premises. While on the licensed premises, Officer Hamilton observed several patrons in the bar either smoking suspected marijuana or "doing" cocaine on the bar counter.
On or about August 3, 1983, Officer Hamilton again entered the licensed premises and observed several persons engaged in the sale and use of suspected marijuana without any attempt to control such activity on Respondent's part.
On or about August 5, 1983, Officer Hamilton again entered the licensed premises in an undercover capacity and observed approximately five or more transactions involving suspected marijuana and/or cocaine buys. While on the premises, Officer Hamilton purchased a package of suspected marijuana from a black male in exchange for five dollars in U.S. currency. Officer Hamilton left the bar with the suspected marijuana and maintained custody and control thereof until it was received by Officer Allen for marking and identification. Officer
Allen thereafter proceeded to the FDLE crime lab where he submitted the substance for analysis.
On August 15, 1983, Officer Hamilton again visited the licensed premises in an undercover capacity. While there, he observed barmaid Washington and several patrons smoking what he suspected to be marijuana. While that activity was ongoing, no one on Respondent's behalf attempted to stop such activity.
On August 17, 1983, Officer Chester L. Copeland of the Tampa Police Department, Street Anti-Crime Section, entered the licensed premises as part of the same undercover operation. While there, Officer Copeland was approached by an unknown black male who asked Copeland if he desired to buy some cocaine. At this time, Officer Copeland purchased a foil packet of cocaine for the price of five dollars in U.S. currency. While on the licensed premises, Officer Copeland also observed the same individual make several drug sales in an open and unobstructed manner. Officer Copeland also observed several patrons in the bar smoking what he believed to be marijuana cigarettes. Officer Copeland has received training and is experienced in the detection and identification of controlled substances and their usage. Barmaid Washington, who was on the premises at the time, made no attempt to stop the above-referred activity observed by Officer Copeland. Upon leaving the licensed premises, Officer Copeland returned to the Tampa Police Department and administered a valtox chemical test upon the suspected cocaine purchased while at the licensed premises and the results thereof were positive for the presence of the controlled substance cocaine.
Officer Hamilton also entered the licensed premises on August 23, 24 and 25, 1983. While on the premises on August 23, 1983, Officer Hamilton observed on-duty barmaid Washington smoke marijuana and snort what he suspected to be cocaine from the top of the east bar. While there, Hamilton approached an unidentified black male patron and asked if he could purchase some cocaine.
This inquiry resulted in a sale of suspected cocaine in exchange for ten dollars in U.S. currency. Upon leaving the premises, Officer Hamilton maintained custody and control of the suspected cocaine until it was turned over to Officer Tim Allen. Officer Allen thereafter maintained control of the suspected cocaine until it was submitted to the FDLE crime laboratory for analysis.
While on the premises on August 24, 1983, Officer Hamilton again observed off-duty barmaid Washington snort a powdery substance suspected to be cocaine. This activity by Washington as in the presence of a patron and was done on the bar corner in the licensed premises. At no time did anyone on Respondent's behalf attempt to stop said activity.
While on the licensed premises on August 25, Officer Hamilton was approached by a black male from whom Officer Hamilton had purchased suspected cocaine on a prior occasion. Pursuant to an inquiry by that patron, Officer Hamilton proceeded to purchase a quantity of suspected cocaine in exchange for ten dollars in U.S. currency. Upon exiting the premises, Officer Hamilton proceeded to the Tampa Police Department where he delivered the suspected cocaine to Officer Tim Allen. After marking and receiving the suspected cocaine from Hamilton, Officer Hamilton submitted it to the FDLE crime lab for analysis.
On August 23, 1983, Officer Copeland again entered the licensed premises in an undercover capacity. While there, he purchased a baggie of suspected marijuana from a black female in exchange for ten dollars in U.S. currency. While there, Officer Copeland observed on-duty barmaid Washington
snort a white powdery substance suspected to be cocaine in addition to smoking what he recognized as a marijuana cigarette.
Upon leaving the premises, Officer Copeland returned to the Tampa Police Department where he ran a valtox chemical test on the suspected marijuana which results were positive for the controlled substance marijuana.
The licensed premises is situated in an area of Tampa whereby drugs and other drug-related problems are commonplace. Narcotics and other controlled substances are readily purchased in and around the immediate area where the licensed premises is situated. The FDLE crime laboratory has uniform policies and procedures respecting the acceptance of substances submitted for analysis. Prior to acceptance by the FDLE crime lab, submissions must be properly marked, identified, and sealed. Thereafter, the submission from the agency involved is placed into an evidence locker or vault where it is kept under lock until such time as it is removed for analysis by a lab chemist. Chemists for the FDLE crime lab will not conduct a chemical analysis on a suspected substance where there is any evidence of tampering with the submission or if the submission is not sealed upon receipt by the chemist. Finally, there was no evidence introduced herein that any of the submissions received (6) were in any manner tampered with prior to analysis by the chemists from the FDLE crime laboratory (Testimony of chemist Anthony Ziberna)
Of six (6) submissions submitted by the Petitioner to the FDLE crime lab, only those submissions dated August 26 and August 2, 1983 proved not to be controlled substances under the provisions of Chapter 893, Florida Statutes.
Jerry Cumbie, a self-employed contractor, has done substantial remodeling work on behalf of the Respondent corporation for many years. On approximately August 5, 2/ Mr. Cumbie started remodeling and other construction of the licensed premises in an effort to prohibit patrons from using the licensed premises for hiding controlled substances. Among the things Mr. Cumbie did was close off a section of the dance area (the north side of the bar) to prevent patrons from going into that area to smoke marijuana; the tying down of the ceiling tiles and erection of new paneling to keep patrons from hiding drugs behind loose walls.
Harold Gillespie, the manager of the Paradise Inn, has been employed by the Respondent corporation for approximately 12 years. Mr. Gillespie is approximately five feet five inches tall and weighs approximately 290 pounds.
He is the only black male manager at the Paradise Inn during the months June and July of 1983.
Mr. Gillespie acknowledged that drugs were a problem in the area and that that problem overflows into the licensed premises. In an effort to curb that overflow, Messrs. Gillespie and Gatto met with representatives of the Tampa Police Department Vice Squad during June or July of 1983 and advised the vice employees of their problems with drugs in the area. Mr. Gillespie recalled that he spoke with a Sergeant Kester and a Captain Stallings of the Tampa Police Department.
Mr. Gillespie recalled having apprehended numerous patrons in the licensed premises who were using illegal drugs on the premises. Mr. Gillespie ejects any patron from the licensed premises that refuses to stop the illegal use of controlled substances while on the premises. He has also taken other steps including turning off water in the lavatories to make it difficult for drug users to "setup" in order to conveniently use the drugs. Mr. Gillespie
also sought the assistance of police officers from the local precinct and recalls speaking to an Officer Keys and others who work out of the local precinct in the area of the licensed premises.
Mr. Gillespie fired Vickie Washington when she was arrested for drugs. Finally, Mr. Gillespie instructed employees to patrol the restrooms and other vacant areas to attempt to curtail patrons from the use of illegal or prohibited drugs in the licensed premises.
John Gatto, Jr., the president and owner of the respondent corporate entity since 1965, has owned and operated as many as six (6) liquor establishments at one time. Presently, the Respondent operates four bars and has sold two within the last six months.
Del Sol Enterprises has experienced one problem with the Division of Alcoholic Beverages and Tobacco prior to the subject incident. That problem occurred approximately 8 years ago when a janitor sold a bottle of liquor before opening hours.
Mr. Gatto also recalls contacting Sergeant Jones of the Tampa Vice Squad and was assured that the vice squad would help to the extent practicable with the drug related problems.
Mr. Gatto spent approximately $4,000 for remodeling the licensed premises in an effort to shut it off from patrons in areas which could not be easily supervised. Mr. Gatto acknowledges the existence of the drug problems in the licensed premises and in the area and concedes that more employees would possibly alleviate part of the problem. However, he counters that the establishment was losing money and that he did the best that he could do with the available help under the circumstances.
Mr. Gatto employed Vickie Washington on approximately July 17, 1983. Manager Gillespie inquired of her background and got reports that she was "pretty clean." Mr. Gatto was unaware that Vickie Washington used drugs while on the licensed premises.
Mr. Gatto recalled having found drugs in the cocktail tables; loose paneling areas of the licensed premises; and in pockets in the billiard tables.
Mr. Gatto frequented the Paradise Inn approximately twice per month to check the manner in which the establishment was operating. He had no knowledge of the number of drug transactions that were occurring in the licensed premises and does not condone or otherwise foster the use of drugs in the licensed premises.
Finally, Mr. Gatto tied the ceiling tiles down with wire and installed a booth in the entrance area to check who went in and out of the bar.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.
The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.
The Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, has the authority to revoke or suspend a license of any licensee when it finds that either the licensee or his agents have violated certain state laws on the licensed premises. Section 561.29(1)(a), Florida Statutes (1981)
A showing of but one isolated violation combined with a showing that the licensee otherwise took pains to obey the law would not normally support a revocation. However, if the evidence shows that the laws are repeatedly and flagrantly violated by the employees, there arises an inference that the violations were either fostered, condoned, or negligently overlooked by the licensee, notwithstanding the licensee's absence from the premises when the violations took place; Pauline V. Lee, 147 So.2d 359 (2nd DCA Fla. 1962); Lash, Inc. v. State, Department of Business Regulation, 411 So.2d 276 (3rd DCA Fla. 1982). As a result of the above cases and similar cases, the standard of simple negligence may be applied to the revocation of a beverage license; Bach v. Florida State Board of Dentistry, 378 So.2d 34 (1st DCA Fla. 1979). In that connection, a licensee has the obligation of maintaining sufficient intelligence with regard to his own establishment so as to know at least generally what his employees are doing, and his failure to do so constitutes a lack of reasonable diligence and a failure of proper management; G & B of Jacksonville, Inc. v. State, Department of Business Regulation, 371 So.2d 138 (1st DCA Fla. 1979)
In the instant matter, Petitioner presented clear and convincing evidence that marijuana and cocaine buys had been made on the licensed premises from several patrons and an employee both on and off duty. In connection with the sale and delivery of the controlled substances, the Petitioner's witnesses also observed the open use and sales of marijuana and cocaine on the premises by patrons therein without any effort on the part of the licensee's employees. 3/
Authoritative case law is clear that the identification of marijuana can be made without chemical analysis by officers trained in its detection. See, for example, Dean v. State, 406 So.2d 1162 (2nd DCA Fla. 1981); Turner v. State, 388 So.2d 250 (1st DCA Fla. 1980); and State v. Raulerson, 403 So.2d 102 (5th DCA Fla. 1981). Based on the laboratory analysis and the valtox tests conducted by Officer Copeland, it is hereby concluded that the submissions for laboratory analysis and the findings by Officer Copeland were properly identified as cannabis and cocaine.
Florida Statutes 893.03 defines controlled substances. Cannabis and cocaine are listed as controlled substances under Florida Statutes in Sections 893.03(1)(c)3 and 093.03(2)(a)4, Florida Statutes. Section 893.13(1)(1)(a)2 makes it a felony of the third degree to sell any controlled substance described in Florida Statutes 893.03(1)(c), (2)(c), (3) or in (4). Accordingly, cannabis and cocaine are controlled substances making users subject to third degree and second degree felony violations respectively.
Evidence herein clearly establishes that the patrons and an employee on the licensed premises sold marijuana and cocaine to Officers Hamilton and Copeland in violation of Florida Statutes 893.13 during the investigation conducted at the licensed premises set forth herein above.
Section 771.01, Florida Statutes, provides that anyone who aids, abets, or otherwise procures a felony to be committed, and such offense is committed, are principals in the first degree and may be charged, convicted and punished as such. The aid and assistance given by barmaid Vickie Washington in helping Officers Hamilton and Copeland procure controlled substances from
patrons clearly establishes that the actual purchases of these controlled substances were made with the help of an agent of the licensee. As such, barmaid Vickie Washington is clearly guilty of aiding and abetting in the commission of the purchase of controlled substances in violation of Section 777.011, Florida Statutes. See, for example, Beasley v. State, 360 So.2d 1275 (4th DCA Fla. 1978)
Section 893.13(2)(a)4, Florida Statutes, makes it unlawful: to keep or maintain any store, shop,
warehouse, dwelling, building... or other structure or place which is resorted to by persons using con- trolled 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 shall be deemed a public nuisance. No persons shall keep or maintain such a public nuisance or aid and abet another in keeping or maintaining such a public nuisance.
Florida Statutes 823.91 makes the keeping of a public nuisance a misdemeanor of the second degree. In the instant matter, it was clearly established through the repeated drug usage, that trafficking on the licensed premises of the Paradise Inn is a violation of Section 893.13(2)(a)5, Florida Statutes.
Based on the foregoing, it is hereby concluded that a public nuisance was maintained on the licensed premises. As such, the Respondent is guilty of a violation of Section 561.29(1)
Florida Statutes. Further, given the criminal prescriptions of Section 823.91, Florida Statutes, against maintaining a public nuisance, the maintenance of a public nuisance by the licensee amounts to conduct violating Section 569.29(1)(a), Florida Statutes (1981)
Competent and substantial evidence was offered to establish that a proper chain of custody was maintained by the officers involved until the substances were either submitted to the FDLE crime laboratory or until the substances were subjected to valtox tests administered by Officer Copeland.
Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Respondent's alcoholic beverage license number 39- 2182, series 2-COP, doing business as the Paradise Inn, be suspended for a period of 6 months from the date of the final order entered herein.
RECOMMENDED this 30th day of December, 1983, in Tallahassee, Florida.
JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1983.
1/ To the extent that the proposed findings, etc. contained in the posthearing memoranda are not incorporated in this Recommended Order, said proposed findings, etc. were deemed irrelevant, immaterial, or not otherwise supported by record evidence.
2/ Unless otherwise noted, all dates are in 1983.
3/ In making this conclusion, consideration was given to manager Gillespie's testimony of his efforts as well as the efforts of Mr. Gatto, owner. However, those efforts appear to be insufficient in view of the repeated infractions witnessed by Officers Hamilton and Copeland.
4/ In making this recommendation, consideration was given to the fact that respondent has been the holder of an alcoholic beverage license for a number of years without any notice or charge of violation of the alcoholic beverage laws; the fact that the respondent independently sought the aid and assistance of local law enforcement officers in dealing with its acknowledged drug problem in the licensed premises and the fact that the employee who was involved in a number of the violations herein was immediately discharged upon the filing of charges against her. In such circumstances, it appears that a suspension, rather than a revocation, of the license is warranted.
James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough St.
Joseph L. Diaz, Esquire 2522 W. Kennedy Blvd.
Charles A. Nuzum Director
Beverages and Tobacco 725 S. Bronough St.
Gary R. Rutledge Secretary
Department of Business Regulation 725 S. Bronough St.
