STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0500

) SANTOS NAVARRO OSORNIO, d/b/a ) SANTOS CORNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on April 17, 1990, in Immokalee, Florida.

APPEARANCES

For Petitioner: Elizabeth C. Masters, Esquire

725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Kenneth K. Thompson, Esquire

P. O. Drawer 5250 Immokalee, Florida 33934

STATEMENT OF THE ISSUES

The issue is whether respondent's alcoholic beverage license should be disciplined for the reasons stated in the notice to show cause.

PRELIMINARY STATEMENT

By a notice to show cause served on September 21, 1989, petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), charged that respondent, Santos Navarro Orsornio d/b/a Santos Corner, had violated Section 562.41, Florida Statutes (1987). More specifically, the notice to show cause alleged that on May 12, 1989 respondent physically struck a Department investigator and obstructed or hindered the lawful performance of the same investigator in violation of Section 562.41, Florida Statutes (1987). Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1989). The matter was referred by petitioner to the Division of Administrative Hearings on January 26, 1990, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated February 13, 1990, a final hearing was scheduled on April 17, 1990 in Immokalee, Florida.

At final hearing petitioner presented the testimony of Stephen H. Thompkins, a Division investigator, Dennis Strickland, Rick Jones and Joe N. Jones, Jr., Collier County deputy sheriffs, and Tommy Lee Ewing, a Division district supervisor. Also, it offered petitioner's exhibits 1-3. All exhibits ware received in evidence. Respondent testified on his own behalf and presented the testimony of Leticia White, Olga Candia, Vicende Hernandez-Lopez, and Melissa Conner. Also, he offered respondent's exhibits 2, 3, 5, 6 and 7. All exhibits were received in evidence. 1/

There is no transcript of hearing. Proposed findings of fact and conclusion of law were filed by the parties on May 9, 1990. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. At all times relevant hereto, respondent, Santos Navarro Osornio (respondent or Santos), held alcoholic beverage license number 21-00850, series 2-COP, issued by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent operated a bar known as Santos Corner or The Pink Panther located at 190 South Third Street, Immokalee, Florida. Respondent's license authorized him to sell beer and wine for consumption on the premises and package sales for off-premises consumption. Respondent has operated the lounge since October 1987.

   
   

2. As a licensee, respondent's establishment was subject to inspection during regular hours of operation. The Division conducts spot checks of such establishments at random in addition to checking establishments that have been the subject of complaints. It is noted that when respondent was issued his license in October 1987, he signed a statement authorizing Division agents to inspect and search the licensed premises during normal business hours without a search warrant.

   
   

3. In early May 1989 petitioner's Fort Myers district office received a request from other area law enforcement agencies to participate in "Operation Fast Track", an operation planned and coordinated by the United States Department of Immigration and Naturalization Services (INS) in an effort to apprehend illegal aliens residing in the Immokalee area. Among other things, the operation called for a raid on respondent's licensed premises. Besides INS agents, other law enforcement agencies participating in the raid were the "SWAT", team of the Collier County Sheriff's office, the fire marshal's office and the county health department. Petitioner agreed to send agent Thompkins, a certified law enforcement officer, whose sole purpose was to inspect respondent's premises to ascertain if the licensee was in compliance with alcoholic beverage and tobacco laws and regulations.

   
   

4. The raid took place around 11:30 p.m. on Friday, May 12, 1989. The crowded and noisy bar was then filled with more than one hundred customers, primarily Hispanic, who were enjoying entertainment provided by a popular Spanish band from Homestead, Florida. The events which occurred after the agents stormed the premises are sharply in dispute. In reconciling this conflicting testimony, the undersigned has accepted the more credible and persuasive testimony and embodied this testimony in the findings below.

5. After entering the bar through the front double doors, and going around the partition which lies immediately in front of the doors, the agents observed a bandstand, tables, booths and dance floor to the immediate right, a horseshoe shaped bar to the front, a long unused bar to the left, and, in the upper left rear of the bar, five pool tables sitting between the unused bar and the horseshoe bar. A diagram of the bar received in evidence as respondent's exhibit 7 provides a more precise description of the premises.

   
   

6. A SWAT team and a single INS agent first entered the front doors yelling "police" and "immigration" in English and Spanish. They did not have a search warrant. The SWAT team members wore their uniforms and bullet-proof vests. They also carried billy clubs and weapons. The attire of the INS agent is unknown although all members in the operation were expected to wear something which identified them as law enforcement officers. The first group's mission was to secure the area, line the patrons against the wall and pat them down. The INS agent then checked the patrons for citizenship documents. After the first group of officers entered, they were followed by another group of deputies and other agents, including agent Thompkins, who wore a new dark blue t-shirt with the word "POLICE" encaptioned in bold yellow letters on its back. In smaller letters beneath that word were the words "Division of Alcoholic Beverages and Tobacco". As Thompkins entered the front door he yelled "police" and did so a second time once he entered the bar area.

   
   

7. Shortly after entering the premises, Thompkins observed deputy sheriff Joe Jones talking with a lady behind the horseshoe bar. The lady was Olga Candia, who lived with Santos in an adjoining apartment. Candia, a woman of small stature, was dressed in a red dress and high heel shoes and occupied a chair in the entrance way to the bar. Jones asked Candia to come out from behind the bar so that he could secure the bar area. She refused because, in her words, she "wasn't no wetback" that was going to be lined up against the wall and patted down. After Candia refused several requests to move, Jones advised Candia that she would be arrested for obstruction of justice if she did not comply with his request. At that point Candia started for the back door, but after taking only a few steps, Jones pulled her face down on the floor between the bar and pool table. As Jones attempted to pull her arms behind her back to handcuff her, Candia began to squirm. Agent Thompkins then assisted Jones in holding Candia down while the handcuffs were placed on the detainee. It should be noted that Thompkins is a rather large man who stands over six feet, two inches tall and weighs three hundred plus pounds. Candia immediately began screaming "Santos" at the top of her voice.

   
   

8. While the above events were occurring, Santos, who was described by one officer as being "very cooperative", had complied with a request of another deputy to install a light in the bandstand area. The purpose of this was to provide more light in the dimly lit lounge. From that vantage point, Santos could not see Candia being held on the floor since the horseshoe bar stood around four feet high and was between him and the area where she was being held. However, over the turmoil and yelling in the bar he heard the screams of his girlfriend and proceeded as quickly as he could towards the bar area bent on furnishing Candia assistance. He could not run because of a gimpy leg. After he rounded the horseshoe bar he ran into the back of Thompkins, who was in a bent over position holding Candia down. Thompkins described the bump as having a "battering ram effect" on him and caused him to "stumble". However, he did not lose his grip on Candia, probably because Santos weighs no more than half as much as Thompkins and is much shorter.

9. To illustrate the confusion and conflicting versions of events surrounding the alleged battery, deputies Jones and Strickland recalled seeing Santos flying through the air into Thompkins, jumping on his back and placing his arms around Thompkins' neck. However, Thompkins did not recall anyone hanging onto his back and placing their hands around his neck. Instead, he remembered only that someone or something had rammed his back. Two defense witnesses disagreed and contended that respondent never touched Thompkins but was knocked to the floor by a deputy before he reached Thompkins and Candia. Santos also related this version of events. It is found, however, that as Santos rounded the bar at a quickened pace, he accidentally ran or was pushed into Thompkins' back and was thereafter immediately secured on the floor with handcuffs by deputies. It is found that Santos did not intend to batter the officer nor did he know that the person he was running or falling into was a law enforcement officer. Santos was then arrested and charged with felony counts of battery and obstructing justice. A county judge later reduced those charges to a misdemeanor.

   
   

10. After the above events occurred, Thompkins conducted an inspection of the licensed premises but found no serious violations of alcoholic beverage and tobacco laws or agency rules. Except for the pending charges, Santos has never been disciplined for a violation. Finally, numerous patrons of the bar were arrested the evening of May 12 for being in the country illegally and were taken to an INS detention center for further processing.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

    
    

12. The Notice to Show Cause alleges that two violations occurred on the licensed premises:

    
    

    1. On or about 5-12-89, you, Santos Navarro Osornio, licensee of Santos Corner, on your licensed premises, did actually and intentionally physically strike with your body the back of Division of Alcoholic Beverages and Tobacco Investigator Stephen Thompkins who was wearing a clearly marked departmental shirt, while engaged in the lawful performance of his duties, specifically assisting Collier County Deputy

       J. Jones, ID #364, in violation of F.S. 784.03 and F.S. 784.07(2).

    2. On or about 5-12-89, you, Santos Navarro Osornio, licensee of Santos Corner, did obstruct or hinder the lawful performance of duty by Beverage Law Enforcement Investigator Stephen Thompkins who was assisting Collier County Deputy J. Jones ID #364, when you actually and intentionally struck, with your body, Thompkins back, in violation of F.S. 562.41.

       If proven true, such violations would constitute grounds for revoking respondent's license under the authority of Subsection 561.29(1)(a), Florida Statutes (1989). That subsection authorizes the Division to revoke a beverage license if, while on the licensed premises, the licensee violates any laws of this state.

       
       

13. To sustain the charge in count I, petitioner must prove that respondent violated either Section 784.03 or Subsection 784.07(2), Florida Statutes (1987). Those sections provide in pertinent part as follows:

    
    

    784.03 Battery. -

    1. A person commits battery if he:

       1. Actually and intentionally touches or strikes another person against the will of the other; or

       2. Intentionally causes bodily harm to an individual.

    2. Whoever commits battery shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

    784.07 Assault or battery of law enforcement officers, firefighters, or intake officers; reclassification of offenses. -

    * * *

    (2) Whenever any person is charged with knowingly committing an assault or battery upon a law enforcement officer . . . while the officer . . . is engaged in the lawful performance of his duties, the offense for which the person is charged shall be reclassified (to a higher offense).

    * * *

    
    

    Thus, petitioner is obliged to prove that respondent "actually and intentionally" touched or struck agent Thompkins against the will of Thompkins. Since the undersigned has specifically found that Santos did not intend to touch or strike Thompkins, 2/ the charge that respondent violated section 784.03 must fail. Evans v. State, 452 So.2d 1093 (Fla. 2d DCA 1984)(battery on a law enforcement officer is a specific intent crime requiring evidence that defendant formed specific intent to do so). As to subsection 784.07(2), that statute simply reclassifies an assault or battery upon law enforcement officers to a more serious offense, and any violation thereof is directly dependent upon a finding that an assault and battery has occurred. Since such an offense did not occur, this charge must also fail.

    
    

14. Respondent is next charged with violating Subsection 562.41(4), Florida Statutes (1987) by "obstruct(ing) or hinder(ing) the lawful performance of duty by Thompkins who was assisting Collier County Deputy J. Jones . . ., when you actually and intentionally struck, with your body, Thompkins' back." The cited statute provides in part as follows:

    
    

    (4) Any person who shall forcibly obstruct or hinder . . . any division employee ... in the execution of any power or

    vested in him by law, or who shall forcibly rescue or cause to be rescued any property if

    the same shall have been seized by such officer, or shall attempt to endeavor to do so, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or S. 775.083.

    
    

    Under petitioner's theory, Santos obstructed agent Thompkins while Thompkins was lawfully in the bar attempting to aid an officer in distress, deputy Jones, who was in the process of handcuffing Candia. As such, petitioner posits that Santos obstructed and hindered Thompkins in the lawful performance of his duties. While it is true that Santos "forcibly", ran into Thompkins' back in that the two collided, the undersigned has found that such touching was unintentional. Since a violation of this statute would also appear to require scienter or intent on the part of the violator, it cannot be concluded that Santos "obstructed or hindered" Thompkins within the meaning of the law.

    Therefore, count II should be dismissed.

    
    

15. In view of the above conclusions, it is unnecessary to reach the constitutional arguments advanced by respondent. Parenthetically, however, it is noted that even if an arrest is illegal, as respondent contends here by virtue of the lack of a search warrant, a citizen has no privilege to use force or to commit a battery on the arresting officer. See, e.g., State v. Gilchrist, 458 So.2d 1200 (Fla. 5th DCA 1984). Further, the cited general proposition that, whenever a search is declared to be illegal by a criminal court all evidence arising out of the arrest must also be dismissed in the administrative proceeding, is misplaced. This is because the "seizure of evidence (in a criminal case) in violation of the Fourth Amendment does not preclude admission of that evidence in a civil proceeding." Harris v. State, Department of Revenue, 15 FLW 1043, 1044 (Fla. 1st DCA, April 16, 1990) and cases cited therein.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent be found not guilty of violating the cited statutes and that the notice to show cause be DISMISSED with prejudice.

RECOMMENDED this 22nd day of May, 1990, in Tallahassee, Florida.

DONALD ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1990.

ENDNOTES

1/ Exhibit 2, which was identified as a copy of the court docket sheet, was never submitted by respondent. Consequently, the undersigned has not considered that document.

2/ See, e.g., Morris v. Department of Professional Regulation, 474 So.2d 841, 843 (Fla. 3d DCA 1985)( the presence or absence of intent is a finding of fact, not a conclusion of law).

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-0500

Petitioner:

1. Rejected as being unnecessary.

2. Partially adopted in finding of fact 1.

3. Partially adopted in finding of fact 2.

4. Rejected as being unnecessary.

5-7. Partially adopted in finding of fact 3.

1. Rejected as being unnecessary.

2. Partially adopted in finding of fact 3.

3. Partially adopted in findings of fact 3 and 4.

4. Partially adopted in findings of fact 3, 4 and 5.

5. Partially adopted in finding of fact 5.

6. Partially adopted in finding of fact 7.

14-16. Partially adopted in finding of fact 6.

1. Partially adopted in finding of fact 7.

2. Partially adopted in finding of fact 8.

3. Rejected as being contrary to the more persuasive and credible evidence.

4. Partially adopted in finding of fact 9. 21-22. Rejected as being unnecessary.

Respondent:

1-2. Partially adopted in finding of fact 2.

1. Partially adopted in finding of fact 4.

2. Partially adopted in finding of fact 6.

3. Partially adopted in findings of fact 2 and 5.

4. Partially adopted in finding of fact 5.

5. Partially adopted in finding of fact 7.

8-10. Partially adopted in finding of fact 6.

11. Rejected as being unnecessary.

12-13. Partially adopted in finding of fact 6.

1. Partially adopted in finding of fact 5.

2. Partially adopted in finding of fact 8.

NOTE - Where proposed findings have been partially used, the remainder has been rejected as being irrelevant, cumulative, unnecessary, subordinate, not supported by the evidence or a conclusion of law.

COPIES FURNISHED:

Elizabeth C. Masters

725 South Bronough Street Tallahassee, FL 32399-1007

Joseph A. Sole, Esquire 725 South Bronough Street Tallahassee, FL 32399-1007

Kenneth K. Thompson, Esquire

P. O. Drawer 5250 Immokalee, FL 33934 (813) 657-4416

Leonard Ivey, Director Division of Alcoholic

Beverages and Tobacco 725 South Bronough Street

Tallahassee, FL 32399-1007

Docket for Case No: 90-000500

Orders for Case No: 90-000500