DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
vs. ) CASE NO. 84-1857
Respondent. )
A hearing was held in this case based on an Emergency Order of Suspension before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Key West, Florida, on May 24, 1984. The issue for consideration was whether Respondent's alcoholic beverage license should be disciplined because of the misconduct alleged in the Notice to Show Cause filed on May 18, 1984.
For Petitioner: William A. Hatch, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Katherine P. Gardner, pro se
On May 18, 1984, Howard M. Rasmussen, Director of the Division of Alcoholic Beverages and Tobacco, entered a Notice to Show Cause in this case which suspended Respondent's license, 2-COP No. 54-00184, because of alleged violations of the Florida Beverage Law and statutes. Specifically, Petitioner alleges that Respondent was using its premises for the illegal storage, sale, or delivery of a controlled substance in violation of Sections 823.10 and 893.13, Florida Statutes; and maintaining a public nuisance on its premises in violation of Sections 823.01 and 561.29, Florida Statutes. Respondent requested a formal hearing on the allegations, which was conducted as requested. At the hearing, Petitioner introduced the testimony of Louis W. Clark, Beverage Investigator in
the Key West office of the Division of Alcoholic Beverages and Tobacco; Gale Sampson, a Division Investigator; Clark A. Raby, a Division Investigator; Beverly Jenkins, a Division Investigator; Jose Iturralde, a Division Investigator; and Michael Somberg, a Major with the Monroe County Sheriff's Department. Petitioner also offered Exhibits 1 and 2.
Respondent testified in her own behalf and presented the testimony of Geraldine K. Hook, a barmaid; Brenda Louise Gillespie, a barmaid; Barbara Deane Palmer, a barmaid; and Louise 0tona, the bar manager. Respondent introduced no documentary evidence.
At all times pertinent to the issues herein, Respondent held Florida Alcoholic Beverage License 2-COP No. 54-00184 at Stew's Bar located at Third Avenue, Maloney Subdivision, Stock Island, Monroe County, Florida.
The parties stipulated that Robert Stanley Gardner, Respondent's husband, has a financial interest in the leased premises. Based on Respondent's testimony, it is clear that she did not understand the nature of her stipulation regarding Robert Stanley Gardner's interest in the licensed premises, and he in fact has no interest therein.
Stew's Bar has had a reputation with the Monroe County Sheriff's Department as a trouble spot for a considerable period of time prior to the events which took place here. However, upon questioning, Major Somberg, who had a computer printout of all calls received by his office relating to this establishment, was unable to cite even one previous call relating to narcotics. Nonetheless, based on the records of law enforcement agencies in the area, an undercover operation was instituted against Respondent's establishment in late April and early May 1984. On April 25, 1984, at approximately 3:50 p.m., Gale Sampson, an investigator with the Miami office of the Division of Alcoholic Beverages and Tobacco, entered Respondent's bar in an undercover capacity. She spent a period of time observing patrons and employees and noticed a Latin male who had a towel rolled up under his arm. She observed this individual take a packet from the towel, wave it in the air, and say "Haircut." The bartender at the time, Geraldine Hook, laughed, as did several patrons, but made no effort to stop this individual. This packet, a plastic bag containing a white powdery substance, was consistent with the way cocaine is packaged. This package was not, however, confiscated, nor were the contents identified.
The following day, at 5:45 p.m., Sampson again went into the bar. She saw Hook again working behind the bar and asked Hook if she knew where she, Sampson, could get some cocaine. Hook turned and asked a female by the name of Alvarez, who said "Yes." Alvarez and Sampson agreed upon a price of $45 for a half gram, and Sampson gave Alvarez $50. Somewhat later, Alvarez returned to the bar and gave Sampson a half gram package and $5 in change. The contents of this package were subsequently tested in the laboratory of the Monroe County Sheriff's Office and were determined to be cocaine. Hook categorically denies arranging this sale. She admits to knowing Alvarez, but denies knowing even if there was any deal between Alvarez and Sampson. She also contends that when Sampson approached her to buy cocaine, she refused to get Sampson any and told Sampson that if she wanted any, she would have to get it herself. This last admission serves to defeat the credibility of Hook's denial.
Somewhat prior to this transaction between Sampson and Alvarez, Beverage Investigator Clark A. Raby, assigned to the Live Oak, Florida, office,
but in Key West on the same undercover operation, entered Respondent's bar at 4:50 p.m. as a backup for Sampson. He sat at the bar and ordered a beer from Hook. During the course of the evening, he had a conversation with the bartender and various patrons. He saw one Latin and two white males light and pass around what appeared to him to be a marijuana cigarette right at the door. He later went into the men's room and found a Latin male and a white female in the men's room rolling a cigarette. When he excused himself, she said it was all right--she was in there all the time.
Sampson went back into the bar at 11:35 a.m. on April 27 and went right to the bar. She was approached there by a Latin male subsequently identified as Vernesto Seguseo, who asked her to sit in a booth with him. She did, and during the conversation asked him if he was an employee of the establishment. He replied that he was a bouncer, but not on duty. She asked him if he could tell her where she could buy cocaine. He said he had it right there, and she asked him how much one-half gram would cost. He replied "$40," whereupon she paid him as requested. In response, he took a small plastic packet out of his pocket and gave it to her. The contents of this packet were subsequently chemically analyzed by the Monroe County Sheriff's Office and determined to be cocaine. Though this individual never specifically stated he was an employee of this establishment, and evidence indicates from Respondent's witnesses that he was employed as a bouncer at another bar in the area, he was nonetheless seen in this establishment previously in areas reserved for employees of the bar. The testimony of Ms. Otona, the bar manager, and at least one barmaid indicates that this individual was not employed by Respondent's establishment until May 15, 1984, and, at the time of this sale, was not a bar employee.
Raby also entered the bar at 4:50 p.m. on April 27, 1984. He went to the bar, where he ordered a beer from Hook. Shortly afterward, a black male offered to sell him a "Columbian joint" for $1.50. Raby paid him $2 and got the cigarette. Hook was there all the time and did not try to stop the transaction. However, there is some doubt as to whether she saw it. Raby testified that when the transfer of the cigarette was made to him, the cigarette was passed at the level of, or even below the level of, the bar, and it is very possible that Hook did not see the transaction occur. Hook indicates that at that time she was wearing dark glasses to cover the effects of a beating she had received from her boyfriend and did not see anything like what Raby described. Consequently, it is most likely that she did not. This cigarette was subsequently analyzed by the laboratory of the Monroe County Sheriff's Office and determined to be marijuana. This same black male individual, subsequently identified by the initials "J. J.," told Raby at the time that there was good cocaine available for $40 from "Latin brothers."
On that same afternoon, Raby overheard Geraldine Hook agree to smoke and saw her smoke what appeared to be and smelled like marijuana right outside the back door of the establishment. There is no evidence, however, whether or not the substance was in fact marijuana.
On April 28, 1984, Raby went into the Respondent's bar at approximately 5:30 in the afternoon and ordered a beer from the bartender, Joyce. J. J. came up and asked how he liked the cigarette he had purchased the day before, then asked if he wanted to buy some cocaine for $40 a half gram. Raby indicated that he did, whereupon J. J. walked off for awhile and came back. When J. J. came back to the bar, Raby put two $20 bills out which J. J. took. He again went away and came back a moment later with a packet which he passed to Raby beside
the bar. He did nothing to hide it, and Joyce was there and did nothing to stop it. Raby is not sure if Joyce saw this or not, however, as he was not looking at her at the time. The substance was subsequently identified by the laboratory as cocaine.
Sampson was also at the bar early in the morning of April 28, sitting with Vernesto Seguseo. The barmaid, Joyce, said she was taking $15 from the register and someone would replace it later. Seguseo agreed.
Beverage Investigator Beverly Jenkins, who had received word from a confidential informant that an employee of the bar, a maintenance man described as a short black male with a beer belly and no teeth, was selling cocaine. When she first went into the bar on May 14, she saw this man there behind the bar filling the orders and taking orders from Geraldine Hook, the barmaid. When Jenkins talked with him, he admitted he worked there all the time, but did not want to engage in any long discussions at the time. He asked Jenkins to come back without her partner. On May 15, at approximately 5:55 p.m., she went back alone. This individual previously mentioned, who was subsequently identified as "Peter," immediately approached her and offered to introduce her around and "do her right." Jenkins asked him for cocaine. Peter went to another employee, came back, and said he could not provide it. Later, however, he offered to use cocaine with Jenkins if she would go with him. She refused and said she was going to leave, at which point he asked her to wait for him to finish work. Jenkins agreed to this and later left the bar and went out to her car. Shortly thereafter, Peter came out and got in Jenkins' car, at which point he offered to sell her a half gram of cocaine for $40. He offered to reduce the price if she would buy more than one packet. Jenkins agreed to buy three one-half gram packets for $35 each. She paid Peter $105 and received from him a substance which was subsequently identified as cocaine after being analyzed by the Monroe County Sheriff's Office laboratory.
At 6:20 p.m. on the following day, May 16, when Jenkins went back in the bar, Peter was not there, but Vernesto, a former employee, was. Within a few minutes, Peter came in and approached Jenkins, asking her if she wanted more cocaine. When she said she did, he asked her to come outside. She resisted at this time because she was playing pool. When she finished the game, Jenkins went over to Peter, who took her outside and sold her a half-gram of a white powdery substance for $30 on the condition that she always buy from him and not from someone else. The substance Jenkins purchased on this evening was subsequently analyzed and determined to be cocaine.
While Jenkins was in the bar this evening, she noticed there was a lot of traffic going to and from the rest rooms. She saw Peter go into the rest room with a patron, and she noticed that as he entered the rest room he was taking from his pocket a plastic bag similar to those which he had sold her previously. Jenkins did not see this transaction go down, however, but later saw the patron leave the rest room.
The following day, Jenkins noticed that Gerry (Geraldine Hook) was back behind the bar and looked tired. Jenkins noticed that a female patron followed Gerry and her boyfriend into the back, where she saw Gerry breathe in through her nose a white powder. Jenkins asked to join the party at the time, but was refused. The female patron was identified as Donna, a clinic employee, who said at the time they were all a friendly group. This same patron, Donna, went into the restroom later with a Latin male and shortly after came out, rubbing her nose in a fashion consistent with cocaine use. Geraldine Hook, on the other hand, denies under oath that she was ingesting cocaine. Hook contends
that she was explaining to her boyfriend why she could not get off work early and that the other lady was translating her comments to her boyfriend, who does not speak English. Hook contends that she does not ever snort or ingest cocaine because she is allergic to all drugs that are in the cocaine family and in support of that statement submitted a medical record from the Florida Keys Memorial Hospital emergency room showing that on April 23, 1984, when who was treated in the hospital because of being beaten by her boyfriend, she listed as allergies novacaine and tetracycline, tetramycin, morphine, and drugs of a similar nature. Hook also contends that she has asthma and could not use cocaine without it closing off her breathing passages. Emergency room records reflect that she has been previously diagnosed as an asthma sufferer.
Later on May 17, Jenkins went back into the bar and went to the ladies' room with Peter. Peter offered to sell her two bags of cocaine for $60. After they entered the rest room, Peter closed the door halfway prior to making the transaction; however, the substance which he passed to Jenkins on that occasion and for which he charged $60 was subsequently identified as cocaine.
Later that evening, Jenkins again went into the bar and saw Peter working. They played pool for a while, and she asked him for more cocaine. They went to the ladies' room again, where she paid him $60 for one gram of a substance which was subsequently identified as cocaine. During this entire
transaction, the door was not closed. That same evening, Jenkins also saw Peter go into the men's room with three Latin males who, shortly after entering with him, came out rubbing and wiping their noses. This practice of patrons going into the restrooms and coming out rubbing their noses was also observed by Beverage Agent Jose Iturralde, who entered the bar undercover on both the 14th and the 15th of May, but who was unable to make a buy from Peter or anyone else because, he believes, he and the other agents had already been identified as agents. A raid in conjunction with the Monroe County Sheriff's Office and other law enforcement agencies was conducted on the premises on May 18, 1984, pursuant to a search warrant properly issued. Arrested at that time were Seguseo, Geraldine Hook, and several other Latin named patrons. Pursuant to the search carried out, the following items were found: one and one-half grams of cocaine behind the jukebox; 26 clear baggies, each containing a half-grain of cocaine, behind the bar counter on the floor; a partially smoked marijuana cigarette on top of the cash register; 14 baggies, each containing cocaine, on the bar counter; a partially smoked cigarette below and behind the bar on the southeast corner of the bar on the floor; 22 baggies of cocaine on the floor behind the bar near the entrance (these 22 baggies were contained in a white envelope) 9 syringes in a small storage room off the main bar; and a Marlborough cigarette pack containing a clear plastic bag of cocaine on one of the booth seats.
Geraldine Hook does not recall seeing any patron waving a plastic bag on April 25, as testified to by Agent Sampson; however, she contends that, because of the fact that the police frequently come into the bar looking for narcotics, it is a habit of some of the patrons, as a joke, to wave around clear plastic bags which do not contain cocaine. These instances generally result in the type of laughter described by Sampson. When Hook was hired by the manager, Ms. Otona, she was told, and she recalls that other girls who had been hired there are told, that they, as employees, cannot have or use drugs on the premises or allow anyone in who uses drugs; that if they see anyone they think is using drugs, they are to put that person out. Any violation of these rules results in discharge of the employee. Hook admits having seen mixed couples going into the rest rooms from time to time, but considers this to be acceptable behavior, since there are no locks on the doors.
The rules for employees, which are made known to the employee when hired, were confirmed by another barmaid, Brenda L. Gillespie. She added to the no-drug policy such things as no drinking to excess and no kissing during work, and she herself recalled having barred numerous people and having seen others barred over the past few months because of the new management (that of Mrs. Gardner, Respondent, and Ms. Otona, manager) and their attempts to do away with the previously bad reputation the bar had for drugs. Because of this, the waitresses have taken substantial abuse.
Ms. Gillespie confirmed Ms. Hook's comments regarding the joke made of the waving of plastic bags, contending that the patrons are trying to test the barmaids to see how far they can go. Gillespie also contends that she is the one who pried the locks off the restrooms to prevent patrons from locking themselves in the rooms to use drugs and has many times told patrons to keep the drugs out, going so far as to call the police.
Notwithstanding the testimony of all of the beverage agents that they had never seen the Respondent or the manager on the premises, Gillespie opined that either one or both are there all the time or are immediately on call, since they live in the immediate vicinity of the bar. Further, she contends that the agents were there on irregular hours or were so busy pretending to be drunk that it was impossible for them to see anyone. She recognized the undercover agents as agents, but she did not let on because she wanted their help.
Louise Otona, currently the manager of Stew's Bar for Katherine Gardner, the owner, indicated that she and Respondent realized about one and a half or two months ago that there was a problem at the bar because of Respondent's husband, Stanley Gardner. Mr. Gardner is a cocaine addict, but has no interest in the premises or in the license. Because of his problem, however, Ms. Otona keeps all the money from the sales, and none is left at the bar. Respondent and Ms. Otona have barred anyone they knew who had any connection with Mr. Gardner and his drug habit. Ms. Otona has also fired anyone she knows who has anything to do with drugs and has taken over from the barmaids throwing people out. Ms. Otona admits that drugs may have been sold in the bar, but not with her knowledge or with the knowledge of her employees, because both she and Respondent have tried to do their utmost to keep drugs out.
The waitresses in Stew's Bar are hardworking girls who would not knowingly jeopardize their livelihood by selling or permitting drugs to be sold in the bar. Ms. Otona and Respondent have worked hard to make Stew's Bar clean again and have made progress. Ms. Otona has received many compliments from the police on these efforts. With regard to Peter, the Latin male who sold to Jenkins on several occasions, Ms. Otona contends that Peter was fired by her personally on May 15, 1984, and could not then have been an employee of the bar at the time the sales were made. However, many of the barmaids' boyfriends help behind the bar, as do some patrons. Consequently, it may appear that individuals are employees who are working behind the bar when, in fact, they are not.
Respondent testified similarly to Ms. Otona. Respondent does not use drugs herself, nor does she drink. Her husband, Stanley, is a drug addict, and she has started work to have him committed because of his addiction. He has nothing to do with the bar, however, and he is not the landlord. As far as J. J.'s coming into the bar is concerned, J. J. was barred from this establishment prior to the incidents in question, but keeps coming back. Respondent has called the police to have him thrown out, but nothing seems to help.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Under the provisions of Section 823.10, Florida Statutes (1983), any building which is used for the illegal keeping, selling, or delivery of controlled substances is deemed to be a public nuisance. Both marijuana and cocaine are controlled substances. The repeated established instances of the use and sale of marijuana and cocaine by patrons of Respondent's establishment, even if not Respondent's employees, establishes the existence of a public nuisance during the period April 25 through May 17, 1984, in the licensed premises. Respondent's ownership of the bar and her operation of it at the licensed premises, when coupled with the showing of repeated instances of use and sale of the controlled substances cited above, also constitutes a violation of Section 893.13(2)(a)5, Florida Statutes (1983), and, therefore, a violation of Section 561.29(1)(c), Florida Statutes (1893), which permits discipline of a license when a nuisance is maintained on the licensed premises.
The evidence establishes that Ms. Hook, the bartender on duty on the afternoon of April 26, 1984, either participated in or, at the very least, abetted the sale of cocaine by Alvarez to Sampson in violation of Section 777.011, Florida Statutes (1983)
The evidence also establishes that on April 28, 1984, Ms. Sampson purchased cocaine from Vernesto Seguseo in the licensed premises. There is some doubt as to whether Seguseo was an employee of the licensee or not. Sampson contends he said he was a bouncer, but the licensee's manager contends he was not employed at that time. Since the burden of proof is on Petitioner to establish the connection, and since the evidence admitted results in an equipoise, it must be concluded that Petitioner has failed to establish the employer/employee relationship. Consequently, it cannot be concluded that in this case an employee of the licensee sold cocaine to Sampson in violation of Section 561.29(1)(a), Florida Statutes (1983).
The same conclusion is not so easily drawn regarding the status of "Peter," who was involved in sales of cocaine to Beverage Officer Jenkins on May 15, 16 and 17, 1984. Notwithstanding the manager's protestations that she fired Peter on May 15, 1984, the evidence clearly indicates he had free access to the premises on the succeeding days. However, the evidence also indicates that the sale on May 15 took place in Jenkins' car outside the premises. There is no evidence to show where the car was parked--in Respondent's lot or on the street. Consequently, it cannot be said the sale was made on the premises.
Peter's sale on May 16 also took place outside the licensed premises, and, again, there was no evidence to show where outside the sale took place. While Section 561.29(1)(a), Florida Statutes (1983), permits discipline of a license for a violation by the licensee or an employee on the licensed premises or elsewhere while in the scope of employment, it cannot be said that the sale of cocaine by Peter was in the scope of employment, and a violation has not been established in either of these two cited instances.
The sale on May 17 is an entirely different story and clearly took place on the premises--in the ladies' room--and constitutes a clear violation of Section 561.29(1)(a), Florida Statutes (1983)
As to the allegation that Ms. Hook, a bartender, used cocaine on the premises on May 17, there is a clear denial and documentary evidence in the form of a hospital emergency room record on Hook which shows her to have previously listed an allergy to such things as novacaine and morphine. In light of the fact that Jenkins merely observed what she thought was the ingestion of cocaine by Hook and none was recovered for analysis, a violation cannot be supported here.
Petitioner has the authority to revoke or suspend the license of any licensee when it finds that either the licensee or its agents have violated certain laws of the state on the licensed premises. Section 561.29(1)(a), Florida Statutes (1983).
A showing of only one isolated violation, when combined with a showing that the licensee otherwise took pains to obey the law, would not normally support a revocation. See, Rex Allen Jones, t/a Happy Hour v. State, Division of Alcoholic Beverages & Tobacco, So.2d (Fla. 1st DCA 1984), Order in Case No. AV-132 filed March 30, 1984. If, however, 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; Pauline v. Lee, 417 So.2d 359 (Fla. 2nd DCA 1982); Lash, Inc. v. State, Dept. of Business Regulation, 411 So.2d 276 (Fla. 3rd DCA (1982).
A licensee has the obligation to know what his employees are doing, and his failure to do so constitutes a lack of diligence and a failure of proper management; G & B of Jacksonville, Inc. v. State, Department of Business Regulation, 371 So.2d 138 (Fla. 1st DCA 1979).
Here, while either the licensee or the manager was frequently on the premises, it is obvious that they either overlooked or failed to see what was obviously open drug dealing and usage in and about the premises. That demonstrated repeated misconduct brings the situation out from the strictures of Happy Hour, supra, and justifies severe corrective action. If, in fact, the licensee, her manager, and her bar girls have, as they say, been trying to get drugs out of the licensed premises, it is obvious their efforts have been inadequate.
Respondent's 2-COP alcoholic beverage license number 54-000184 be revoked.
RECOMMENDED in Tallahassee, Leon County, Florida, this 20th day of June 1984.
ARNOLD H. POLLOCK
FILED with the Clerk of the Division of Administrative Hearings this 20th day of June 1984.
William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Mrs. Katherine P. Gardner c/o Stew's Bar
Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Howard M. Rasmussen, Director Division of Alcoholic Beverages
