STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF ALCOHOLIC ) BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2413

)

GIRALDO GONZALEZ, )

d/b/a LAGOMA RESTAURANT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by it duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on July 9, 1986, in Miami, Florida.

APPEARANCES

For Petitioner: Louisa E. Hargrett, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Juan de Jesus Gonzalez, Esquire

Arnaldo J. Suri, Esquire Soto-Suarez Building

1950 Southwest 27th Avenue Miami, Florida 33145

PRELIMINARY STATEMENT

At issue in this case is whether the alcoholic beverage license of Respondent should be revoked or otherwise disciplined for, inter alia, possession, sale and use of controlled substances and maintaining a gambling house upon the licensed premises.

At final hearing, Petitioner called as witnesses: Hector Garcia, Carlos Baixauli, and Walter Lovisek. Petitioner offered exhibits 1-7, and they were received into evidence. Respondent called no witnesses, but did offer its exhibit 1, which was received into evidence.

The parties were granted leave through September 2, 1986, within which to file proposed findings of fact and conclusions of law. Only Petitioner elected to file proposed findings, and they have been addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Giraldo Gonzalez, d/b/a LaGoma Restaurant, held alcoholic beverage license number 23-03475, series 2- COP, for the premises known as LaGoma Restaurant, 9550 N.W. South River Drive, Miami, Dade County, Florida.

   
   

2. On May 30, 1986, Petitioner, Division of Alcoholic Beverages and Tobacco (DABT), following a complaint from another agency, began a narcotics investigation at the licensed premises. On that date, DABT Investigators Carlos Baixauli and Hector Garcia, operating under cover, entered the licensed premises and seated themselves at the bar. During the course of their visit they observed the on-duty bartender, Annie, deliver money to a male patron and receive from him a matchbook containing a small plastic packet of white powder. Annie subsequently delivered the matchbook to an unidentified male who was standing outside the front door of the premises.

   
   

3. On June 3, 1986, Investigators Baixauli and Garcia returned to the licensed premises and again seated themselves at the bar. Investigator Garcia asked the on-duty bartender, Mindy, if she could get him some "perico" (Spanish slang for cocaine) Mindy subsequently approached Investigator Garcia and, sitting on his lap, pressed a small plastic bag of cocaine into his hand. Garcia paid Mindy $50.00 for the substance. 1/

   
   

4. On June 4, 1986, Investigators Baixauli and Garcia returned to the licensed premises. As they seated themselves at the bar, Investigator Garcia observed two patrons playing the video poker machine and shortly thereafter saw Respondent open the machine, erase the accumulated points, and pay the patrons and unknown quantity of money from the cash register.

   
   

5. Later, while seated at the bar, Investigator Garcia engaged the on-duty bartender, Mindy, in conversation. Mindy placed a napkin on the bar in front of Garcia, poured cocaine onto it from a plastic package she had removed from her pocket, and invited Garcia to try some "perico". At that time there were a number of patrons, including a family with small children, seated proximate to Garcia. The investigators went to the bathroom and secured the cocaine in an evidence bag.

   
   

6. Upon their return from the bathroom, the investigators heard screaming and arguing near the bar. They observed a male patron approach another male patron, who was carrying a gym bag which he claimed contained a shotgun, and demand that he put the gun away or use it. Respondent attempted to quell the disturbance; however, the patron with the bag swung it against the other patron's head, causing a severe cut and profuse bleeding. As the two patrons wrestled to the floor among broken bottles and glass, Respondent picked up the gym bag and hid it in the kitchen. After the fight broke up, Respondent's employees immediately cleaned up the premises. When the police arrived to investigate the disturbance they found no evidence of the mayhem that had occurred, and were assured by Respondent that only a miner altercation had taken place. Contrary to Respondent's assurances, a real donnybrook had occurred, and the patron struck with the gym bag had suffered severe injuries and was, at that moment, in the hospital.

   
   

7. After the police left, another on-duty bartender, Debra (Mindy's sister), approached the investigators while they were seated at the bar and, laughing, began talking about the fight. During the course of their conversation, Debra removed a straw from her shoe and a five dollar bill from

   her blouse. She unfolded the bill on the bar, revealing a white powdered substance, and snorted a portion of the substance through the straw. Several patrons, together with bartender Mindy, were present at this time.

   
   

8. Later that evening, Mindy handed Investigator Garcia a small plastic bag of cocaine, telling him to go try some. The investigators went into the bathroom where they transferred a portion of the cocaine into a plastic bag for evidence and returned the remainder to Mindy." 2/

   
   

9. On June 6, 1986, Investigators Baixauli and Garcia returned to the premises, and assumed their usual seats at the bar. A patron seated next to Investigator Garcia introduced himself as Eduardo and asked Garcia if he wanted to buy some good perico. When Garcia agreed, Eduardo stood, removed a small plastic bag of cocaine from his pocket, laid it on the bar, and received $45.00 from Garcia. Several patrons, together with the on-duty bartender, Maritza, observed the transaction.

   
   

10. Later, Investigator Baixauli asked on-duty bartender Debra if she could get him some cocaine. When Debra agreed, Baixauli gave her $50.00 and she walked over to three male patrons. Upon her return, Debra placed a plastic package of cocaine on the bar in front of the investigator. Several patrons smiled at Baixauli after observing the transaction. Following this sale, off- duty waitress Jenny approached Investigator Baixauli and told him she was sure he would like the perico since she was the supplier. Subsequently, Jenny joined a male patron seated down the bar, and the two snorted a white powder off the bar in the presence of numerous patrons.

    
    

11. On June 9, 1986, Investigators Baixauli and Garcia returned to the licensed premises. The investigators began speaking with patron Eduardo, regarding the purchase of more cocaine. The investigators left the bar for a short time with Eduardo, but returned before him. When Eduardo entered the premises, he was carrying a large plastic bag containing approximately one ounce of marijuana. Eduardo placed the bag on the bar in front of the investigators, and told them the marijuana was on the house. On-duty bartenders Esperanza and Candy, together with Respondent, were proximate to this transaction.

    
    

12. On June 10, 1986, the investigators returned to the premises. During the course of their visit, Investigator Baixauli observed a male patron playing the video poker machine who suddenly exclaimed "I won". Respondent told the patron to "leave it on 600 and I'll pay you". Respondent then paid the patron

    $150.00 from the cash register.

    
    

13. The investigators again returned to the premises on June 12, 1986. As Investigator Garcia spoke with off-duty waitress Jenny, she removed a small change purse from her boot, which she opened to reveal several small packages of white powder. Jenny told Garcia she would sell him some for $50.00, as opposed to $60.00, if he would agree to let on-duty bartender Maritza have some. When Garcia agreed, Jenny and Haritza went to the restroom. Jenny subsequently returned and handed the packet of cocaine to Investigator Garcia.

    
    

14. Later, a patron identified as Roger sat next to Investigator Garcia and Jenny, and purchased a packet of cocaine from her. Roger subsequently handed Jenny the packet and told her to let her friends try some. Investigator Garcia went to the restroom, secured a sample of the cocaine for evidence, and returned the remainder to Jenny.

15. On June 16, 1986, the investigators returned to the premises and took their usual seats at the bar; on duty were bartenders Mindy and Debra. Investigator Baixauli observed Respondent standing at the video poker machine watching a patron play. When the patron had achieved a score of 400 points, he told Respondent to "credit me 50 on the machine and give me the rest". Respondent credited the machine 50 points, and paid the patron an unknown amount of money from the cash register. Meanwhile, Eduardo seated himself next to Investigator Garcia and asked if he wanted to buy some good cocaine. Garcia told Eduardo that he was a little short of cash, however, since Mindy volunteered to go halves, Garcia agreed. Garcia gave Mindy $25.00, she borrowed

    $10.00 from Debra, and gave Eduardo a total of $50.00 in exchange for a plastic packet of cocaine. Mindy held the packet up for Debra to see, whereupon they went to the restroom. Upon their return, Mindy placed the packet of cocaine on the bar in front of Garcia.

    
    

16. On June 18, 1986, the investigators returned to the premises, and took their usual seats at the bar. While Garcia was seated next to, and speaking with, off-duty waitress Jenny, Jenny summoned Respondent. While Respondent was present, Garcia asked Jenny if she had a small amount of perico he could have since he was short of cash. At that point, Respondent moved about 3-4 feet away to speak with a patron. Jenny removed a plastic packet of cocaine from her pocket and placed it on the bar. As Garcia reached to pick up the packet, he observed Respondent looking in his direction.

    
    

17. As Garcia continued to speak with Jenny, a male patron approached her and asked if she had his "stuff". Jenny handed the man a plastic packet containing a white powder and he paid her an unknown quantity of money. Investigator Garcia subsequently observed the patron snort a portion of the white powder through a rolled up dollar bill while standing in the pool room area. A number of patrons were playing pool or standing in the area during his activity.

    
    

18. The investigators returned to the premises on June 20, 1986, and observed Respondent pay off on the video poker machine. Later in the evening, while Respondent was speaking to Sixto Gonzalez, Sixto called Mindy over and handed her a marijuana cigarette. Mindy and her sister Debra went to the service door and smoked the marijuana.

    
    

19. On June 23, 1986, the investigators returned to the premises. After assuming their usual seats, Investigator Baixauli asked on-duty bartender Debra if she had any cocaine for sale. Debra replied that she did not, but that she could get some from another on-duty bartender, Esperanza. Baixauli gave Debra

    $50.00, and she secured a plastic packet of cocaine from Esperanza and delivered it to Baixauli. Several patrons, who were speaking with Esperanza at the time, observed the transaction.

    
    

20. On June 27, 1986, the investigators returned to the premises for the last time. Seated in their usual seats, Investigator Baixauli counted out

    $50.00 in front of on-duty bartender Mindy. Mindy immediately picked up the money and, walking away, announced "it's perico time". Baixauli observed Mindy approach a male known as Flaco and then go the restroom. When she returned to Baixauli, she handed him a plastic packet of cocaine. Baixauli held the packet up in the presence of other patrons, and while Respondent was standing behind the bar.

    
    

21. All of the events summarized in the preceding paragraphs took place at the licensed premises during normal business hours and at times when Respondent

    was present. At no time did Respondent or his employees express any concern about any of the drug transactions. In fact, all of the employees who worked in the bar portion of the licensed premises knew that marijuana and cocaine were being used and sold on the licensed premises, on a regular, frequent, and flagrant basis. Neither Respondent, nor any of his employees, took any action to prevent, discourage, or terminate the sale or use of controlled substances.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

23. Section 561.29, Florida Statutes, authorizes DABT to revoke or suspend a beverage license upon a showing of:

    
    

    1. Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or else-

       where while in the scope of employment, of any of the laws of this state or of the United States, or violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages, or engaging in or permitting disorderly

       conduct on the licensed premises, or permitting disorderly conduct on the licensed premises, or permitting another on the licensed premises to violate any of the laws of this state or of the United States; . . .

       * * *

       (c) Maintaining a nuisance on the licensed premises.

       
       

24. Section 823.10, Florida Statutes, declares a place or building where controlled substances are illegally kept, sold, or used, to be a nuisance. Section 893.13(2)(a)(5), Florida Statutes, makes it unlawful for any person:

    
    

    To keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, air- craft, or other structure or place which is resorted to by persons using controlled 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.

    Marijuana and cocaine are controlled substances. Section 893.03, Florida Statutes. It is a violation of state law, under the circumstances of this case, to sell, use, deliver, or possess marijuana or cocaine. Section 893.13, Florida Statutes.

25. Further, Section 849.01, Florida Statutes, provides: Whoever, by himself, his servant,

    clerk or agent, or in any other

    manner has, keeps, exercises or maintains a gaming table or room, or gaming implements or apparatus, or house, booth, tent, shelter or other place for the purpose of gaming or gambling or in any place of which he may directly or indirectly have charge, control or management, either exclusively or with others, procures, suffers or

    permits any person to play for money or other valuable thing at any game

    whatever, whether heretofore prohibited or not, shall be guilty of a felony of the third degree, . . .

    
    

    A person who habitually allows others to play a game for money upon his premises is guilty of maintaining a gambling house. See: Ferguson v. State, 377 So.2d 709 (Fla. 1979).

    
    

26. The proof is clear and convincing that the employees and patrons of the licensed premises possessed, used, and sold controlled substances on the licensed premises in violation of the law. The proof is equally clear that Respondent maintained a gambling house in violation of the law.

    
    

27. In the instant case, the violations of law were so numerous and flagrant as to compel the conclusion that Respondent, who was present on the licensed premises at all times, fostered, condoned or negligently overlooked them. Lash, Inc. v. State, Department of Business Regulation, 411 So.2d 276 (Fla. 3d DCA 1982), Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1982). Accordingly, the evidence supports the revocation of Respondent's license. 3/

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a

Final Order revoking alcoholic beverage license number 23-03475, series 2-COP,

issued to Giraldo Gonzalez, d/b/a LaGoma Restaurant, for the premises located at 9550 N.W. South River Drive, Miami, Florida.

DONE and ORDERED this 12th day of September, 1986, in Tallahassee, Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1986.

ENDNOTES

1/ All substances received by the investigators were laboratory analyzed, and proved positive for cocaine or marijuana. In those circumstances where the investigators did not actually receive the substance, and analysis was not possible, I conclude that the white powder being used or sold was cocaine; the appearance of the powder was consistent with cocaine, the manner in which the powder was used was consistent with the manner in which cocaine was customarily used, and the powder was being used in a place where cocaine was sold and used on a regular basis. See: A. A. vs. State, 461 So.2d 165 (Fla. 3d DCA 1985).

2/ On June 4, 1986, another incident occurred on the premises which, although not of itself a basis to discipline Respondent's license, is demonstrative of the wide open character of the establishment. On that date, Debra grabbed Investigator Baixauli's hand and began licking and sucking his fingers as she told him she wanted to suck his penis. She subsequently began fondling her breasts, unhooked her bra, and exposed herself to the apparent appreciation of several smiling patrons.

3/ In light of this holding, it is not necessary to pass on DABT's assertion that Respondent is guilty of being an accessory after the fact, in violation of Sections 561.29(1), 784.045, and 777.03, Florida Statutes, because he secreted the gym bag which had been used to injure a patron, cleaned the premises before the police arrived, and informed the police upon their arrival that there had been no problem.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2413

DABT's proposed findings of fact numbered 1-13 have been addressed in paragraphs 1-13, respectively, of the Findings of Fact.

COPIES FURNISHED:

Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Juan de Jesus Gonzalez, Esquire Arnaldo J. Suri, Esquire

Soto-Suarez Building 1950 S.W. 27th Avenue Miami, Florida 33145

and

2153 Coral Way, Suite 601

Miami, Florida 33145

Giraldo Gonzalez d/b/a LaGoma Restaurant

9550 N.W. South River Dr. Miami, Florida 33145

Howard M. Rasmussen, Director The Johns Building

725 S. Bronough Street Tallahassee, Florida 32301

James Kearney, Secretary The Johns Building

725 S. Bronough Street Tallahassee, Florida 32301

Thomas A. Bell, Esquire General Counsel

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 86-002413

Orders for Case No: 86-002413