STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4620

)

JULIO AND LIDA DIAZ, d/b/a )

FLOR-LIDITA RESTAURANT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on June 14, 1988, in Miami, Florida, before Joyous Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Katherine A. Emrich, Esquire

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

For Respondent: Rene M. Valdes

1830 Northwest 7th Street Miami, Florida 33125

BACKGROUND AND PROCEDURAL MATTERS

This case began on April 13, 1987, when the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Department) filed an amended seventeen count Notice to Show Cause against Respondents. This amended notice alleged Respondents had, on several identified occasions, sold Illegal lottery chances known as "bolita." It was claimed the bolita sales occurred on the licensed premises and were made either by Respondents or their employee.

Further, the amended notice maintained that Respondents used their licensed premises for the purpose of gambling and conspired with others to conduct the illegal lottery. Finally, the amended notice charged Respondents with the unlawful possession of an open bottle of scotch whiskey. The license held by Respondents authorized only beer and wine. On February 9, 1987, Respondents requested an administrative hearing and the case was forwarded to the Division of Administrative Hearings for formal proceedings on October 20, 1987.

At the hearing, the Department presented the testimony of the following witnesses: Robert Bates, a special agent employed by the Florida Department of

Law Enforcement (FDLE); Hector Zeno, a police officer employed by the City of Hollywood Police Department; Jacqueline Sirven, a special agent employed by FDLE; Joyce Dawley, a special agent employed by FDLE; Joseph Ogonowski, an investigator employed by the Department; and Frank Oliva, a special agent employed by FDLE. The Department's exhibits identified as Petitioner's exhibits 1a, 1b, 2, 4, 4A, IA1, JA1, KA1, 5A, 6, 7, 8, 10 and 21A were admitted into evidence. Respondents offered no evidence. No transcript was filed; however both parties timely filed proposed recommended orders. They have been carefully considered in the preparation of this Recommended Order and specific rulings on the proposed findings of fact are included in the attached Appendix.

ISSUE

The central issue in this case is whether Respondents are guilty of the violations alleged in the Amended Notice to Show Cause; and, if so, what penalty should be imposed.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. At all times material to the allegations in the Amended Notice to Show Cause, Respondents, Julio and Lida Diaz, d/b/a Flor-Lidita Restaurant, held alcoholic beverage license number 23-4636. This license was a 2-COP license which authorized the sale of beer and wine for the premises known as Flor-Lidita Restaurant which is located at 4762 N. W. 183rd Street, Miami, Florida.

   
   

2. In July, 1986, the FDLE began an investigation concerning an illegal gambling lottery commonly known as "bolita" which was believed to be operating in connection with the Flor-Lidita Restaurant. The investigation undertaken involved a surveillance of the restaurant together with undercover agents who were used to frequent the restaurant for the purposes of observing activities and placing bets with the restaurant personnel.

   
   

3. An individual identified as Rafael Rosquete was determined to be a courier who would enter the restaurant, collect the gambling paraphernalia and returns, and deliver the items to a home located in Broward County.

   
   

4. On July 9, 1986, a police officer, Hector Zeno, working undercover in connection with the FDLE, entered the Flor-Lidita Restaurant and observed customers writing numbers on bolita slips. Officer Zeno also observed individuals placing bets with the owner, Julio Diaz. In turn, Zeno filled out a bolita slip and placed a $5.00 bet with the owner Julio Diaz.

   
   

5. On July 16, 1986, Joyce Dawley and Jacqueline Sirven entered the Flor- Lidita Restaurant and observed customers placing bolita bets with the Respondents, Lida and Julio Diaz. These agents also observed another employee known to them as "Rolando" (later identified as Rolando Nunez) taking bets. Agents Dawley and Sirven placed $5.00 bets with Julio Diaz on this date and received carbon copies of their bolita slips.

   
   

6. On July 22, 1986, Zeno returned to the restaurant for the purpose of observing the customers and again placed a $5.00 bet by completing a bolita slip and tendering money to Julio Diaz. During this visit Zeno observed Nunez and Lida Diaz taking money and bolita slips from other customers within the restaurant.

7. On July 23, 1986, Dawley and Sirven returned to the restaurant and again placed two $5.00 bets with Julio Diaz. During this visit the agents observed other individuals inside the licensed premises place bets with Rolando Nunez and Lida Diaz.

   
   

8. On July 24, 1986, Dawley and Sirven returned to the Flor-Lidita Restaurant for the purpose of picking up $70.00 in winnings which Agent Dawley was entitled to as a result of the bet she had placed the previous evening.

   
   

9. On July 30, 1986, Dawley and Sirven went to the Flor- Lidita Restaurant and again placed two $5.00 bets. This time Lida Diaz took their money and the original bolita slips and gave them carbon copies of their bets.

   
   

10. On July 31, 1986, Sirven entered the Flor-Lidita Restaurant for the purpose of receiving $70.00 in winnings based on the prior day's bolita bet.

    
    

11. On August 6, 1986, Dawley entered the Flor-Lidita Restaurant, received a bolita pad from Rolando Nunez and placed a $5.00 bet with Nunez in the present of Julio Diaz. On this visit Nunez showed Dawley a ledger which contained a list of dates together with numbers which indicated the winning numbers for the dates in question.

    
    

12. On August 11, 1986, Dawley went to the Flor-Lidita Restaurant and observed Lida and Julio Diaz receiving bolita bets from persons within the restaurant. Dawley also observed Rolando Nunez taking bets. Dawley placed a

    $5.00 bet with Nunez on this date.

    
    

13. After receiving a search warrant for the Flor-Lidita Restaurant, special agents of the FDLE entered the licensed premises on August 12, 1986 and searched the restaurant. During the search, agents took possession of various items of gambling paraphernalia which included bolita betting slips, Puerto Rican lottery tickets, blank bolita pads, currency and ledger books. Over

    $40,000 worth of U.S. currency and gambling paraphernalia was confiscated in connection with the police raid on the restaurant and the house in Broward County.

    
    

14. In connection with the search of the licensed premises, Joseph Ogonowski seized an open bottle of scotch whiskey which was behind the counter at the restaurant. The scotch was not listed on the menu as a designated ingredient for any of the food items available for purchase at the restaurant.

    
    

15. During the period of surveillance of the Flor-Lidita Restaurant, Rosquete was repeatedly observed by FDLE agents. Rosquete would routinely visit the restaurant, obtain items of gambling paraphernalia including betting slips and U.S. currency, and deliver the proceeds from the restaurant to a residence located in Broward County.

    
    

16. The gambling activities conducted on the licensed premises were open, frequent, and included the active participation of the Respondents, Julio and Lida Diaz.

    
    

    CONCLUSIONS OF LAW

    
    

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

18. Section 561.29(1), Florida Statutes, 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:

    1. 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 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 another on the licensed premises to violate any of the laws of this state or of the United State; 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 or the rules of evidence.

       
       

19. Section 849.09(1), Florida Statutes provides, in pertinent part:

    
    

    1. It is unlawful for any person in this state to

       1. Set up, promote, or conduct any lottery for money or for anything of value;

    * * *

    1. Aid or assist in the setting up, promoting, or conducting of any lottery or lottery drawing, whether by writing, printing, or in any other manner whatsoever, or be interested in or connected in any way with any lottery or lottery drawing;

    2. Attempt to operate, conduct, or advertise any lottery scheme or device;

    * * *

    1. Have in his possession any lottery ticket, or any evidence of any share or right in any lottery ticket, or in any lottery scheme or device, whether such ticket or evidence of share or right represents an interest in a live lottery not yet played or whether it represents, or has represented, an interest in a lottery that has already been played;

    2. Aid or assist in the sale, deposal, or procurement of any lottery ticket, coupon, or share, or any right to any drawing in a lottery; or

    * * *

    (k) Have in his possession any so- called "run down sheets,?? tally sheets, or other papers, records, instruments, or paraphernalia designed for use, either directly or indirectly, in, or in connection with, the violation of the laws of

    this state by law to be sold by such licensee.

    
    

20. In the case at issue, the evidence established that the Respondents, Julio and Lida Diaz, along with their employee Rolando Nunez maintained a place utilized for the purpose of placing bolita gambling bets. In this case the Department has established by clear and convincing evidence that violations of law were so numerous and the conduct so open as to require the conclusion that Respondents knowingly participated, fostered and condoned the activity constituting the violations. All three employees of the restaurant (Julio and Lida Diaz and Rolando Nunez) actively participated or assisted in the placing of the bolita gambling bets. This conduct was observed by several undercover agents involved in the surveillance of the restaurant. The Respondents together with the individual known as Rafael Rosquete conspired to conduct an illegal lottery at the licensed premises.

    
    

21. The evidence further established that in addition to the gambling activities conducted on the premises, the Respondents did unlawfully possess an open bottle of scotch whiskey at the licensed premises. Since the 2-COP license only allowed for the sale of beer and wine, it was improper for the whiskey to be present a the location. Further, there is no evidence from which it could be reasonably concluded that the scotch whiskey was used as a food ingredient for any of the items available for purchase on the menu at the restaurant.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a Final Order revoking license number 23-4636, series 2-COP, held by Respondents, Julio and Lida Diaz, d/b/a Flor-Lidita Restaurant.

DONE and RECOMMENDED this 15th day of July, 1988, in Tallahassee, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4620

Rulings on Petitioner's proposed findings of fact:

1. Paragraphs 1 and 2 are accepted.

2. With the exception of the last sentence paragraph 3 is accepted. The last sentence is rejected as speculation.

3. Paragraph 4 is accepted.

4. Paragraph 5 is accepted.

5. Paragraphs 6-20 are accepted.

6. With the exception of the last sentence in paragraph 21, which is rejected as speculation, paragraph 21 is accepted.

7. Paragraphs 22-23 are accepted.

8. The last two sentences of paragraph 24 are accepted. The first sentence is rejected as argument or a conclusion of law.

Rulings on Respondent's proposed findings of fact:

1. Paragraphs 1-3 are accepted.

2. Paragraphs 4 is rejected as contrary

   to the weight of the evidence. Mr. Ogonowski was qualified to and did identify the substance seized as scotch whiskey.

3. Paragraph 5 is accepted but is unnecessary to the determinations reached by this Recommended Order.

4. Paragraph 6 is rejected as irrelevant, immaterial and unsupported by the record in this cause having previously ruled the adjudications inadmissible.

5. Paragraph 7 is rejected as unsupported by the record in this cause.

COPIES FURNISHED:

Katherine A. Emrich, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Rene Valdes

1830 N. W. 7th Street Miami, Florida 33125

Daniel Bosanko, Director Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

Docket for Case No: 87-004620

Orders for Case No: 87-004620