DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES AND ) TOBACCO, )
vs. ) CASE NO. 85-1295
Respondent. )
For Petitioner: Harold F.X. Purnell, Esquire
For Respondent: Richard J. Mandell, Esquire
A final hearing was held in this case in Miami on April 25, 1985. The issue was whether Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division) should revoke, suspend, or otherwise discipline the alcoholic beverage license of Respondent, Maritza Garcia, d/b/a Maritza's Pub, license number 23-1341, Series 2-COP, on allegations of multiple drug-related offenses on the licensed premises.
Respondent, Maritza Garcia (Garcia) holds alcoholic and beverage license number 23-1341, Series 2- COP, for licensed premises known as Maritza's Pub located at 6455 Southwest 8th Street, Miami, Dade County, Florida.
Garcia obtained the license on July 3, 1984 and has been the licensee since that date.
Between June, 1982 and July 3, 1984, the license for the premises was held by BKS Enterprises, Inc., a corporation owned and operated by Maria Morales and Garcia's common law husband, Julian Alvarez. Sometime before May, 1984, Alvarez assumed full responsibility for operating the licensed premises. In May 1984, Alvarez died.
Garcia had had no experience operating the licensed premises before Alvarez's death. Garcia contacted Morales, who formally released to Garcia any interest Morales might have had in the licensed premises and recommended that Garcia contact Jack O'Feldman, a former manager of the licensed premises, to assist Garcia in operating the licensed premises. The licensed premises reopened under the name of Maritza's Pub on or about July 3, 1984.
Garcia has a one-year old daughter by Alvarez and was able to spend only minimal amounts of time at the pub. During the evening shift, Garcia spent relatively little time at the licensed premises. When she did, she usually left within a few hours after the beginning of the shift at 7:00 P.M. The authority for operating the evening shift was delegated almost entirely to Jack O'Feldman.
Garcia was involved in hiring employees for the pub. She interviewed prospective employees during the day shift. However, all she asked prospective employees was where they were from, whether they had a car and whether they were married. Garcia's hiring criteria were that she preferred not to hire Cubans, preferred employees with their own transportation, and preferred the stability of married employees. She did not require prospects to complete an employment application and did no background check. Frequently, employees were hired to start on the spot or the next day.
Undercover Officer Miriam Parra of the Metro-Dade Police first went to the licensed premises in the early morning of March 23, 1985, shortly after midnight. She went to the rear office door of the premises. At the rear door Parra asked for the on-duty manager, Jack O'Feldman. At the time, there were several people in the office area, a part of the licensed premises. One of them called for O'Feldman, who was at the bar. O'Feldman came into the office area and opened a brown cabinet. In plain view of
Officer Parra, he removed a clear plastic baggie of cocaine which he handed to Parra in exchange for $50.00. There continued to be several people in the office area at the time of this open transaction.
Parra returned to Maritza's Pub in the evening hours of March 23, 1985. She went to the pub at approximately 9:45 P.M. and saw O'Feldman talking to a patron in the parking lot. When he saw Parra approach the rear office door, O'Feldman unlocked the door and again went to the brown cabinet. At the cabinet in clear view of Parra, he removed a clear plastic baggie of cocaine which he handed to Parra in exchange for $50.00. At the time of this transaction, Maritza Garcia was seated in the office in a chair positioned near the brown cabinet and the door at which Parra was standing. Garcia was in a position to clearly observe the transaction. Additionally, there were three or four other people in the office including an on- duty barmaid named Grizel, who told Parra that she was feeling good and "could see that [Officer Parra] had the same thing in mind."
Parra returned to Maritza's Pub on March 28, 1985. Prior to going to the pub, she called O'Feldman to see if he was "working," i.e., selling drugs that evening. Parra arrived at the pub at approximately 8:45 P.M. and went to the rear office door. When O'Feldman saw her, he went immediately to the brown cabinet, unlocked it and removed a clear plastic baggie of cocaine which he openly handed to Parra in exchange for $50.00. There were approximately two other persons in the office at the time of this transaction.
Parra returned to Maritza's Pub on March 29, 1985 at approximately 9:50 P.M. She again went to the rear office door. Observing her, O'Feldman again went straight to the brown cabinet, unlocked it, and removed a clear plastic baggie of cocaine which he handed to Parra in exchange for $50.00.
Officer Parra next returned to Maritza's Pub on March 30, 1985. This time Parra went in the front door of the licensed premises and entered the bar area. Parra asked on-duty barmaid, Grizel, as to Jack's whereabouts. Parra told Grizel that she wanted to see Jack about buying a gram of coke. The barmaid went to the office and got O'Feldman. O'Feldman came up to Parra and told her to go
around the building to the rear office door. While Parra was still in the bar area, she saw Garcia, the licensee, standing at the door between the lounge area and office area of the licensed premises. Parra then exited the front door of the bar and walked around the building to the rear office door. O'Feldman met Parra at the rear office door and had with him at the time a clear plastic baggie of cocaine which he handed to Parra in exchange for $50.00.
Parra returned to Maritza's Pub on April 4, 1985, after first calling O'Feldman to find out that he was "working" that evening. On arriving at the pub, Parra went to the rear office door where she observed on-duty barmaids Grizel and Marie in the office. She asked where O'Feldman was and was told that he would be away from the premises for about twenty minutes. Parra told the barmaids that she needed to see him as soon as he got back. The barmaid named Marie asked: "Do you want to buy a $50.00 gram bag?" Parra said she did, and the barmaid stated she would get "Jack's lady," who could sell the cocaine to her. When the woman identified only as "Jack's lady" approached the office, Grizel stated: "She will be able to give you the stuff you want." "Jack's lady" and Marie went to the brown cabinet, but returned to tell Parra that it was locked and that Jack had the key. Jack then returned through the rear office door and, seeing Parra, unlocked the cabinet and openly handed her a clear plastic baggie of cocaine in exchange for $50.00. This transaction was made with barmaid Grizel and "Jack's lady" standing in the office watching. Parra then asked O'Feldman about the chances of doing an ounce deal, Jack replied that there would be no problem and that the cocaine would sell for $1100 an ounce. They agreed on a delivery date of April 6, 1985.
Parra next returned to Maritza's Pub on April 6, 1985. She first called O'Feldman at the licensed premises at approximately 1O:1O P.M. and advised him that she had enough money for the purchase of an ounce and a half of cocaine. He advised her that it would take approximately ten or fifteen minutes to get it. Parra then went to the rear office door of the pub and met with O'Feldman. She came inside the office while O'Feldman made several telephone calls. While Parra waited for the cocaine, a man named Rene pestered O'Feldman to sell him a gram of cocaine for $30.00. O'Feldman retorted: "You owe me money. The price is $50.00." At approximately 10:45 P.M., Parra observed a car pull into the parking lot, and O'Feldman
stated: "She is here." O'Feldman left the office, approached the car and was handed a bag which he carried back into the office. Once inside the office, O'Feldman showed Parra a clear plastic bag containing approximately one and one-half ounces of cocaine. Parra then advised O'Feldman that she would go to her car to get the money. When Parra left the premises, other police officers placed O'Feldman and the occupants of the delivery automobile under arrest. A search of the premises disclosed the bag containing 41.5 grams of cocaine (the one and a half ounce quantity), 4 grams of cocaine located in the brown cabinet in the office, and 1 gram of cocaine under a calendar on the office desk.
After O'Feldman was placed under arrest, Maritza Garcia was observed by the officers reacquiring the keys to the licensed premises from O'Feldman.
Garcia, in her testimony, stated that following O'Feldman's arrest on April 6, 1985, she fired him as manager. However, at 1:30 P.M. on April 17, 1985, O'Feldman was seen unlocking the back door into the office area of Maritza's Pub, using keys which he had on his person. An Emergency Suspension Order was served at 6:00
P.M. on the evening of April 17, 1985. At the time of service of the emergency order, O'Feldman was in the office area of the licensed premises and, after service of the emergency order, advised the employees at the premises to leave as he was closing up. O'Feldman proceeded to lock up the establishment utilizing the keys which he again had on his person.
CONCLUSIONS OF LAW
Section 561.29(1), Florida Statutes 1983, provides in pertinent part:
The division is given full power and authority to revoke or suspend the license of any person
holding a license under the Beverage Law, when it is determined or found by the division upon sufficient cause appearing of:
Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of the state or of the United States; . . .
or permitting another on the licensed premises to violate any of the laws of this state or of the United States; except that whether or not the licensee or his or its agents, officers, servants, or employees have been convicted in any criminal court of any violation as set forth in this paragraph shall not be considered in
proceedings before the division for suspension or revocation of a license except as permitted
by chapter 92 of the rules of evidence.
Violation by the licensee or, if a corporation, by any officers thereof, of any laws of the state or any state or territory of the United States.
Maintaining a nuisance on the licensed premises.
Section 893.13, Florida Statutes (1983), makes it unlawful and a crime against the State of Florida to possess or deliver controlled substances.
Cocaine is a controlled substance as defined under Chapter 893, Florida Statutes.
Section 823.01, Florida Statutes (1983), makes it illegal to maintain a public nuisance. Section 823.10, Florida Statutes (1983), provides that any place visited by persons for the purpose of unlawfully using any controlled substances, or which is used for the illegal keeping, selling or delivering of same should be deemed a public nuisance. No person is permitted to keep or maintain a public nuisance or aid and abet another in so doing.
Section 893.13(2)(a), Florida Statutes (1983), prohibits maintaining a place which is used for the keeping or selling of substances controlled by Chapter 893, Florida Statutes.
Before a liquor license can be suspended or revoked for violations of law on the premises, a licensee must be found culpably responsible for such violation based upon his own negligence, intentional wrongdoing or lack of diligence. Cohen v. Schott, 48 So. 2d 154 (Fla. 1950); Trader Jon, Inc. v. State Beverage Department, 119 So. 2d 735 (Fla. 1st DCA 1960); and Taylor v. State Beverage Department, 194 So. 2d 321, 325 (Fla. 2nd DCA 1967). In
Bach v. Florida State Board of Dentistry, 378 So. 2d 34, 36 (Fla. 1st DCA 1979), the Court stated:
Section 561.29(1)(a) authorized the Division of Alcoholic Beverages and Tobacco to revoke or suspend the license of any person when the Division finds that either the licensee or his agents have violated certain laws of
the state on the licensed premises. A literal reading of the statute would indicate that a beverage license could be suspended or revoked for a violation of the law committed by the licensee's employees, irrespective of his
own personal fault. See Pauline v. Lee, supra at 364. In an effort, no doubt, to construe that statute so as to sustain it
against constitutional attack, the courts have refused to uphold revocations of beverage licenses when the evidence showed only that on one occasion the licensee's employees violated the laws, but also showed that the licensee otherwise took measures to comply with them.
E.g., Cohen v. Schott, 48 So. 2d 154 (Fla. 1950); Trader Jon, Inc. v. State Beverage Department,
119 So. 2d 735 (Fla. 1st DCA 1960); Taylor v. State Beverage Department, 194 So. 2d 321 (Fla. 2nd DCA 1967). However, if the laws were repeatedly and flagrantly violated by the employees, an inference arose "leading to the conclusion that such violations . . . were either fostered, condoned, or negligently over looked by the licensee, notwithstanding his absence from the premises on the dates
in question." Pauline v. Lee, supra at 364. The above cases apply a standard of simple negligence to the revocation of a beverage license. As a result, if the evidence supported the conclusion that the licensee failed to exercise ordinary care in the maintenance of the licensed premises of
the supervision of his employees, he could be found guilty of negligence and his license revoked.
The testimony and evidence presented at the hearing clearly supports the charges of violations of Section 893.13, Florida Statutes (1983), by possession and
sale of narcotics by Garcia's manager, Jack O'Feldman, and by aiding and abetting the sale of narcotics by other employees of the licensee.
The Notice To Show Cause charges Garcia with maintaining a public nuisance on her licensed premises by maintaining them as a place used for the illegal keeping, selling and delivering of controlled substances in violation of Section 823.10, Florida Statutes. The testimony and evidence indicates that the licensed premises repeatedly served as the place for the keeping, sale and delivery of cocaine by O'Feldman.
The same evidence also proves elements of the violation alleged in the Notice To Show Cause that Garcia maintained her licensed premises as a place which is used for the keeping or selling of substances controlled by Chapter 893, Florida Statutes.
Whether the various violations can be linked to the licensee in this case depends on whether the licensee "fostered, condoned or negligently overlooked" the violations by failure to use ordinary care in maintaining the premises.
In the case of G & B of Jacksonville, Inc. v. State, Department of Business Regulation, 371 So. 2d 137 (Fla. 1st DCA 1979), it was held that a licensee may not remove himself from responsibility for violations of the laws committed by his agents, servants, or employees "by claiming ignorance of the repeated violations." It was further held:
If a licensee does not maintain sufficient intelligence with reference to activities at his or its licensed premises so as to know that two or more of its employees are engaged in such activity as are herein established, then such licensee must be held to have been lacking in reasonable diligence in the proper management
of its licensed premises.
Id. at 139.
In Lash, Inc. v. State, Department of Business Regulation, 411 So. 2d 276 (Fla. 3rd DCA 1982), a license revocation was upheld where it was established that
beverage agents had on five occasions, over a period of a week, purchased controlled substances from two of appellant's employees. The court noted that where the laws are repeatedly and flagrantly violated by employees of the licensed premises, "an inference arises leading to the conclusion that such violations are either fostered, condoned, or negligently overlooked by the licensee."
In the leading case of Pauline v. Lee, 147 So. 2d
359 (Fla. 2nd DCA 1962), five of the alcoholic beverage licensee's female employees offered to commit prostitution at various designated times over a three-day period. The beverage agents and police officers testified that the employees made the prostitution solicitations on the licensed premises and that the licensee's bartender was in a position to hear some of the conversations between the police officers and beverage agents and the employees. The licensee, at its administrative hearing, called the female employees who denied any improper action on their part and the bartender who also denied any improper action on his part or on the part of the female employees. The licensee further testified that his employees were instructed not to solicit for prostitution and that he had, on occasion, had to dismiss a few female employees for soliciting for prostitution. The court, however, concluded that there was substantial competent evidence to uphold the revocation of the alcoholic beverage license at issue. The court defined competent substantial evidence to mean "evidence as will establish a substantial basis of fact from which a fact at issue can be reasonably inferred; that is, such relevant evidence as a reasonable mind would accept as adequate to support a conclusion." Id. at 362. The court concluded:
The persistence and practiced manner with
which the solicitations described by the state's witnesses were made is insufficient to permit a factual inference leading to the conclusion that such violations of law were either fostered, condoned, or negligently overlooked by the licensee, notwithstanding his absence from the premises on the date in question. Id. at 364.
In this case, there were multiple drug violations on the premises. After the death of Julian Alvarez, Garcia took over the licensed premises. Garcia had no experience and devoted little of her time to supervision and management of the premises. Nonetheless, Garcia happened
to be in a position to have observed drug transactions on two occasions. She knew or should have known that her manager was conducting an active cocaine business out of the rear office of her pub. Even after her manager was arrested, Garcia continued to allow him to manage her pub. Her screening of the other employees was practically nonexistent.
Under these circumstances, it must be concluded that Garcia is culpably responsible for O'Feldman's violations, if not an aider and abettor of them.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, revoke alcoholic beverage license number 23-1341, Series 2-COP, held by Maritza Garcia, d/b/a Maritza's Pub.
RECOMMENDED this 23rd day of May, 1985 in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
this 23rd day of May, 1985.
1/ The parties submitted proposed findings of fact. The proposed findings of fact were reviewed, and the following
Findings Of Fact attempt to rule, either directly or indirectly, on each proposed finding of fact. Where proposed findings of fact are not reflected and no direct ruling rejecting them is apparent, the proposed findings of fact have been rejected as being subordinate, cumulative, immaterial or unnecessary.
Harold F.X. Purnell General Counsel
Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301
Howard A. Rasmussen, Director Division of Alcoholic Beverages and Tobacco
725 S. Bronough Street Tallahassee, Florida 32301
Richard J. Mandell Attorney at Law
Richard B. Burroughs, Jr. Secretary
725 S. Bronough St. Tallahassee, Florida 32301
