STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4482

)

CEOLA VIRGINIA CUTLIFF )

d/b/a CLUB NIGHT SHIFT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on October 14, 1987 in Miami, Florida.

APPEARANCES

The following appearances were entered:

For Petitioner: W. Douglas Moody, Jr., Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: R. Scott Boundy, Esquire

901 Northeast Second Avenue Miami, Florida 33132

PROCEDURAL BACKGROUND

The Director, Division of Alcoholic Beverages and Tobacco, Department of Professional Regulation, entered an Emergency Order of Suspension of the Respondent's alcoholic beverage license on October 8, 1987. On October 8, 1987, the Petitioner filed its Notice to Show Cause alleging that the Respondent violated various provisions of the Beverage Law, Chapter 561, Florida Statutes. The Respondent requested a formal administrative hearing pursuant to the provisions of Chapter 120, Florida Statutes.

This cause came on for final hearing on October 14, 1987. The Respondent stipulated to the Findings of Fact as alleged in the Emergency Order of Suspension, except for the employment status of Arthur Dorsey a/k/a Spider. The Petitioner presented the testimony of three (3) witnesses and introduced Petitioner's Exhibit 1 into evidence. The Respondent testified in her own behalf but presented no documentary evidence. The Petitioner submitted post- hearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Based on my observation of the witnesses and their demeanor while testifying, the stipulations of the parties, the documentary evidence presented and the entire record compiled herein, I hereby make the following Findings of Fact:

   
   

2. The Respondent, Ceola Virginia Cutliff is the holder of Alcoholic Beverage License No. 23-06844, Series 2-COP, for a licensed premises known as Club Night Shift, located at 6704 N.W. 18th Avenue, Miami, Dade County, Florida.

   
   

3. On or about September 18, 1987, Division of Alcoholic Beverages and Tobacco (DABT) Investigators R. Campbell, R. Thompson and C. Houston entered the licensed premises as part of an ongoing narcotics task force investigation. An individual named "Frances" was on duty at the bar. The investigators observed Frances sell what appeared to be narcotics to several patrons on the licensed premises. At approximately 7:50 p.m., Investigator Houston approached Frances and asked to purchase narcotics. Frances and Investigator Houston then went to the rear of the bar where Frances sold 2 pieces of "crack" cocaine to Investigator Houston for $10.00.

   
   

4. Approximately fifteen minutes later, Investigator Campbell asked Frances if he could purchase narcotics. Frances presented a piece of rock cocaine which Investigator Campbell purchased for $5.00. This transaction took place in plain view of other individuals in the licensed premises. Frances, upon making a sale, would take the money and give it to a black male called "Spider" a/k/a Arthur Dorsey. Spider would then retain the money.

   
   

5. On September 19, 1987, Investigators Houston and Thompson again entered the licensed premises known as Club Night Shift. On duty that night, was a black female known as "Josephine". Spider was also on the licensed premises positioned in the D.J.'s booth, apparently trying to fix a speaker. Houston and Thompson had observed a black male, named "Gary", exchanging an unknown substance for money with various individuals, immediately outside the licensed premises. Gary, upon receiving money in exchange for the unknown substance, would go into the licensed premises and hand the money to Spider. Later that evening, Investigator Houston noticed that Spider had a brown paper bag in his hand. Gary and Spider proceeded to the bathroom on the licensed premises.

   After exiting the bathroom, Gary left the premises and Spider went behind the bar and began counting a large amount of money onto the counter of the bar.

   Spider placed the money in his back pocket. Investigator Thompson then inquired whether Spider could sell him some crack cocaine. Spider acknowledged that he could and proceeded with Thompson to the rear of the bar, where Spider sold Thompson 20 pieces of rock cocaine for $100.00.

   
   

6. On September 22, 1987, Investigators Houston and Thompson again entered the licensed premises known as Club Night Shift. Bartender Josephine-was on duty at that time along with another black female known as "Niecey". When the investigators inquired as to the whereabouts of Spider, Niecey replied that "he went home to cook up the stuff because they were very low on supply." Niecey reiterated the above statement on numerous occasions when individuals would enter the bar searching for Spider. At approximately 10:30 p.m., Spider appeared on the licensed premises with a brown paper bag in his possession. Patrons that had been waiting outside the premises came inside and Niecey locked the doors to the front and rear exits of the bar. Spider went to the D.J.'s

   booth and pbured the contents of the paper bag onto the counter inside the booth. The bag contained approximately 200 small zip-lock bags containing suspected crack cocaine. The patrons who had been waiting outside for the arrival of Spider then proceeded to line up in front of the D.J.'s booth in order to make purchases. Niecey would take the money from the individual patrons and Spider would deliver the crack cocaine. Investigator Houston got in line and upon arriving at the booth, purchased 20 packets of crack cocaine from Spider in exchange for $100.00. These transactions took place in plain view on the licensed premises.

   
   

7. On September 23, 1987, Investigators Houston, Thompson and Campbell entered the licensed premises known as the Club Night Shift. The barmaid on duty was Josephine. Spider was positioned in the D.J.'s booth making sales to patrons of what appeared to be crack cocaine. Investigator Campbell walked over to the D.J.'s booth and asked to purchase ten (10) pieces of crack cocaine from Spider. Approximately 200 zip-lock packets of suspected crack cocaine were positioned in front of Spider. Spider motioned for Campbell" to pick them out." Campbell then picked out ten (10) packets in exchange for $50.00 which he gave to Spider. This transaction occurred in plain view of other individuals on the licensed premises. Before leaving Spider went behind the bar, obtained a .357 magnum pistol, placed it inside his pants and exited the premises.

   
   

8. On September 29, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. The bartender on duty was Josephine. Shortly after the investigators arrived, Spider appeared on the premises and went behind the bar where he took a pistol from inside his pants and placed it under the bar counter. Spider then removed a brown paper bag from under the bar counter and went to the D.J. s booth. Investigator Thompson proceeded to the D.J.'s booth and asked to purchase two (2) large pieces of crack cocaine. Spider reached into the bag and gave Investigator Thompson two (2) large pieces of crack cocaine in exchange for $100.00.

   
   

9. On October 3, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. Investigator Campbell approached an unknown black male who Campbell had seen selling narcotics on prior occasions. Campbell made inquiries relative to the purchase of cocaine and the unknown black male indicated that he could sell Campbell crack cocaine. The unknown male then gave two five dollar ($5.00) pieces of crack cocaine to Investigator Campbell in exchange for $10.00. This transaction took place in plain view on the licensed premises.

   
   

10. On October 6, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. Shortly after the investigators arrived, they observed Spider on the premises selling crack cocaine to patrons from the D.J.'s booth. Subsequently, Investigator Thompson went to the D.J.'s booth and asked to purchase twenty (20) pieces of crack cocaine. In response thereto, Spider left the licensed premises and proceeded to a pickup truck parked outside. Spider then retrieved a brown paper bag from the vehicle, returned to Investigator Thompson and handed him twenty (20) pieces of crack cocaine in exchange for $100.00. The substance purchased on this occasion was laboratory analyzed and found to be cocaine.

    
    

11. The Respondent licensee admitted to being an absentee owner. The Respondent did not maintain payroll, employment or other pertinent business records.

12. The licensee was aware that drugs were a major problem in the area surrounding the premises and that drug transactions were known to take place immediately outside of the licensed premises. The licensee did nothing to prevent the incursion of narcotics trafficking onto the licensed premises.

    
    

13. The licensee, CeoIa Cutliff, is engaged to Arthur Dorsey. Ms. Cutliff gave Mr. Dorsey a key to the premises and knew or should have known that he was operating in the capacity of a manager on the licensed premises. Josephine, the bartender generally on duty, referred to Mr. Dorsey as "boss man" and Mr.

    Dorsey directed her activities in the licensed premises. Mr. Dorsey a/k/a Spider utilized the licensed premises as if they were his own and was operating in the capacity of a manager at the Club Night Shift.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

    
    

15. Count I of the Notice to Show Cause alleges that on September 18, 1987, the licensee permitted bartender Frances to unlawfully possess, sell and deliver a controlled substance as defined in Section 893.03, Florida Statutes in violation of Section S6l.29(1)(a), Florida Statutes. Count II alleges that on September 18, 1987, the licensee permitted bartender Frances to unlawfully possess, sell and deliver a controlled substance to a third party on the licensed premises. Count III alleges that on September 19, 1987, the licensee permitted patron/manager Spider to unlawfully possess, sell and deliver a controlled substance to a third party on the licensed premises. Count IV alleges that on September 22, 1987, the licensee permitted patron/manager Spider to unlawfully possess, sell and deliver a controlled substance to a third party on the licensed premises. Count V alleges that on September 23, 1987, the licensee permitted patron/manager Spider to unlawfully possess, sell and deliver a controlled substance to a third party on the licensed premises. Count VI charges that on September 29, 1987, the licensee permitted patron/manager Spider to unlawfully possess, sell and deliver a controlled substance to a third party on the licensed premises. Count VII alleges that on October 3, 1987, the licensee allowed an unknown patron to unlawfully possess, sell and deliver a controlled substance to a third party on the licensed premises. Count VIII alleges that on October 6, 1987, the licensee permitted patron/manager Spider to unlawfully possess, sell and deliver a controlled substance to a third party on the licensed premises.

    
    

16. Section 561.29(1)(a), Florida Statutes, subjects an alcoholic beverage license to suspension or revocation whenever the licensee permits another on the licensed premises to violate the laws of Florida. The Findings of Fact set forth herein demonstrate that employees, servants or agents of the licensee persistently committed the offenses of possession, sale or delivery of controlled substances in violation of Chapter 893, Florida Statutes, in and about the licensed premises and further allowed patrons to violate the provisions of Chapter 893, Florida Statutes. Based on the facts of this case, it must be concluded that the licensee was culpably negligent in the management of the licensed premises. The level of drug activity occurring on the licensed premises during the undercover investigation was so pervasive that even the most negligent licensee should have been aware of the illegal activity.

    
    

17. In Lash Inc., vs. State, Department of Business Regulation, 411 So.2d

    276 (Fla 3rd DCA 1982), the Court upheld the revocation of the Appellant's

    alcoholic beverage licensee based on five (5) narcotics violations committed by his employees over the period of a week. The Court stated:

    
    

    Where the violations are, as here, committed in a persistent and recurring manner con- sisting of more than one isolated incident, the Courts have not hesitated to find that such violations are either fostered, con- doned or negligently overlooked by the licensee, even though he may have been absent at the time of the commission of such. In the present case, the recurring sales were made possible by Appellant's failure to supervise the premises and its employees in a reasonably diligent manner, properly leading to the license revocation. Id. at 278.

    
    

    The instant case falls squarely within the parameters set by the Lash decision. The narcotics violations at the Club Night Shift were persistent and recurring. Furthermore, the licensee was aware of pervasive drug activity in the area surrounding the licensed premises and should have been placed on notice of the likelihood of drug activity within the licensed premises. Yet, the licensee failed to take any responsible action to alleviate the possibility of drug possession and sales on the licensed premises. The Respondent is guilty of Counts I thru VIII as alleged in the Notice to Show Cause.

    
    

18. In Count IX of the Notice to Show Cause, the Petitioner alleges that from September 18, 1987, and continuing to October 8, 1987, the licensee kept or maintained a store building, or place which was resorted to by persons using controlled substances or which place was used for keeping or selling controlled substances in violation of Section 893.13(2)(a)(5), Florida Statutes, and therefore in violation of Section 561.29(1)(c), Florida Statutes.

    
    

19. In Count X of the Notice to Show Cause, the Petitioner alleges that from September 18, 1987, and continuing to October 8, 1987, the licensee maintained a shop or place which was visited by persons for the purpose of unlawfully using controlled substances or which place was used for the illegal keeping, selling or delivering of the same, thus rendering the licensed premises a public nuisance in violation of Section 823.10, Florida Statutes and therefore in violation of Section 561.29(1(c), Florida Statutes.

    
    

20. Section 561.29(1)(c), Florida Statutes, subjects an alcoholic beverage license to suspension or revocation where there is maintained a nuisance on the licensed premises. In the instant case, the licensee has fostered, condoned and/or negligently overlooked pervasive dealing in illegal narcotics and controlled substances on the licensed premises and has failed to exercise due diligence in supervising its employees and managing the licensed premises so as to prevent illegal drug activity. See Lash, infra. As such, the Club Night Shift constituted an open and notorious gathering place for those pre-disposed to using, dealing in, and delivering controlled substances prohibited by Chapter 893, Florida Statutes. Furthermore, the Club Night Shift became a convenient place for those dealing in controlled substances to keep, deliver and sell their illegal commodity. The Respondent is guilty as charged in Counts IX and X of the Notice to Show Cause.

RECOMMENDATIONS

Based upon the foregoing, it is recommended that Respondent's beverage license 23-06844, Series 2-COP, located in Miami, Dade County, Florida, be revoked.

DONE and ORDERED this 12th day of November, 1987 in Tallahassee, Leon County, Florida.

W. MATTHEW STEVENSON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4482

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

Rulings on Proposed Findings of Fact Submitted by the Respondent (None Submitted).

COPIES FURNISHED:

W. Douglas Moody, Jr., Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1007

R. Scott Boundy, Esquire 901 E. Second Avenue Miami, Florida 33132

Honorable Van B. Poole Secretary

Department of Business Regulation

The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

Thomas A. Bell, Esquire Department of Business

Regulation

The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

Daniel Bosanko Director

Department of Business Regulation

The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

Docket for Case No: 87-004482

Orders for Case No: 87-004482