McClellan; Walter Biichle; Norma Warren; Phillip Arena; Jill Linenfelser; and Catherine Haney. The Respondent's exhibits numbered 1 and 2 were admitted into evidence.
After the hearing, a transcript of the proceedings was filed on June 20, 1990, and the parties timely filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.
Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:
At all times material to this matter, the Respondent, Robert L. Seamans, held alcoholic beverage license no. 23-00987, series 4-COP, for the licensed premises located at 11425 S.W. 40th Street, Miami, Dade County, Florida, known as the Lucky Lady. Respondent, age 64, has held alcoholic beverage licenses in the states of New York or Florida since 1963. Respondent has never been charged or reprimanded for a beverage law violation until these proceedings.
At all times material to this case, the Respondent employed a barmaid at the Lucky Lady who was known as "Stella." Also present at the Lucky Lady during relevant time periods was a drifter known to the bar patrons as "Tom". In exchange for food and/or the use of the bar kitchen, Tom assisted the barmaids by carrying out trash, stocking the beer cooler, or filling the ice bins. Although Tom was not an employee at the Lucky Lady, he, like many of the regular patrons, had unrestricted use of the Lucky Lady's kitchen area.
Sometime prior to April, 1990, a bar located near the Lucky Lady was closed by the Department following an investigation and a determination that controlled substances were being either sold or possessed on the licensed premises. Respondent was aware of the action taken to close the local bar and was further aware that undesirable persons from that bar might attempt to patronize the Lucky Lady. Respondent had considered joining the Department's Responsible Vendors Program but did not.
Respondent's policy was to exclude any customer suspected of improper conduct whether related to drugs or other inappropriate activities. To effect that policy Respondent maintained a "barred" list which listed those individuals either by name or description who were not welcome at the Lucky Lady. Employees were instructed to request any person on the barred list to leave the facility. In the event such person refused, the police were to be summoned. On numerous occasions not described below, patrons of the Lucky Lady have observed Respondent escorting persons from the bar who were suspected of, or were known to have exhibited, improper conduct.
Respondent relied on his wife, Tanya, to assist him to monitor the interior areas of the Lucky Lady. It was Mrs. Seamans' custom to remain in the licensed premises throughout the evening hours and to watch for any improper conduct. If she observed anything suspicious, she would either report the activity to her husband or to an employee for further investigation and/or action. Unfortunately, Mrs. Seamans sustained a broken hip on April 29, 1990, and was unable to supervise the licensed premises after that date. The Respondent did not obtain a replacement to perform Mrs. Seaman's monitoring function.
During May, 1990, Vincent Weiner, a law enforcement investigator employed by the Department, conducted an undercover narcotics investigation of the Lucky Lady. To effect his purpose, Mr. Weiner assumed the name "Vinnie Capio" and began to patronize the licensed premises.
On May 5, 1990, Mr. Weiner and a confidential informant went to the Lucky Lady and asked Stella if cocaine were available. Stella directed the two men to the restroom. Once there, they proceeded to complete the transaction with Tom based upon the price which had been negotiated with Stella ($25.00).
On this occasion, in exchange for the $25.00, Mr. Weiner received a clear baggie containing a substance which was later analyzed and found to be cocaine.
On May 8, 1990, Mr. Weiner returned to the Lucky Lady and again inquired if cocaine were available for purchase. On this date, Stella went to the kitchen and returned with a packet which was exchanged with Mr. Weiner across the bar counter for $25.00. This packet was later analyzed to be cocaine. At all times when Mr. Weiner was seated at the bar counter, other patrons were also present at the counter during the course of the transactions.
Mr. Weiner attempted to make a second purchase of cocaine on May 8, 1990. Similar to the prior transaction of that date, Stella went to the kitchen but returned with a written message for Mr. Weiner which she handed to him (instead of another packet). Tide message stated, "he's OUT he got rid of all of them already." Stella did not identify the "he" noted in the message.
On May 15, 1990, Mr. Weiner purchased two packets of cocaine at the Lucky Lady. During the first transaction, Stella advised Mr. Weiner to enter the kitchen where he met Tom. Tom then took a packet from an envelope on the kitchen shelf and exchanged it for $25.00. Later in the evening, Mr. Weiner gave $25.00 to Stella while Tom removed another packet from the envelope and handed it to the investigator. This second exchange also took place in the Lucky Lady kitchen. Both of the packets purchased on this date were later analyzed and found to be cocaine.
On May 18, 1990, the investigator returned to the Lucky Lady and purchased two packets from Stella and Tom. Again, the exchange took place within the kitchen and the amount for these transactions totalled $50.00. The substance obtained on this date was later analyzed and found to be cocaine.
On May 22, 1990, Mr. Weiner was seated at the bar when Stella asked him if he would be needing anything that evening. The investigator placed
$25.00 on the bar while Stella went to her purse (located behind the bar counter) and retrieved a packet which she then exchanged for the money. This transaction took place in front of the other patrons seated at the bar. Later
in the evening, in the same manner as described above, Mr. Weiner purchased a second packet from Stella. Both of the packets obtained on this date were later analyzed and found to be cocaine.
On May 29, 1990, Stella was again behind the bar at the Lucky Lady. On this date, Mr. Weiner negotiated for one packet (which she obtained from her purse located within the bar area) in exchange for $25.00. This packet was later analyzed and found to be cocaine.
The Respondent was present within the premises at the Lucky Lady during at least one of the transactions described above. There is no evidence that Respondent was personally involved in the exchanges nor that he was aware of the sales.
The Respondent does not dispute that the substance purchased by Mr. Weiner on each of the occasions described above was cocaine.
During the course of the investigation Mr. Weiner observed video poker games located within the licensed premises. The games were coin operated and required the player to choose a hand for five card draw poker. By discarding any or all of his original hand, the player attempts to, by the chance of the game, receive a winning hand. The game awards points for Winning hands and subtracts points for losing hands. If a player accrues more points than he paid for, he finishes ahead of the machine.
On May 22, 1990, Mr. Weiner finished playing the video poker game with a total of 36 points. That total was 16 more than he had originally purchased. Mr. Weiner consulted Stella regarding the results and she wrote his name and the point total on a piece of paper which she then placed near the cash register.
On May 23, 1990, Mr. Weiner returned to the Lucky Lady and requested his "mail." He intended to obtain his winnings related to the video game he had played the day before. He received $9.00 which he believed was the amount he was due for accruing the 36 points. No other explanation as to why Mr. Weiner would receive
$9.00 from the bar (except in connection with video game results) was suggested by either party.
On May 31, 1990, an Emergency Order of Suspension was executed by the Director of the Division of Alcoholic Beverages and Tobacco. That order was served on the Respondent on June 1, 1990, and the licensed premises have been closed since that time.
On June 1, 1990, an inspection of the Lucky Lady premises was conducted by agents of the Department. The Respondent had keys to the video poker games described in Paragraphs 16 and 17.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these Proceedings.
Section 561.29, Florida Statutes, provides, in 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:
(a) 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 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 or the rules of evidence.
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(c) Maintaining a nuisance on the licensed premises.
Section 823.10, Florida Statutes, provides:
Any store, shop, warehouse, dwelling house, building, vehicle, ship, boat, vessel, or aircraft, or any place whatever which is visited by persons for the purpose of unlawfully using any substance controlled under chapter 893 or any drugs as described in chapter 499, or which is used for the illegal keeping, selling, or delivering of the same, shall be deemed a public nuisance. No person shall keep or maintain such public nuisance or aid and abet another in keeping or maintaining such public nuisance.
Section 893.13, Florida Statutes, provides, in part: (1)(a) Except as authorized by this chapter
and chapter 499, it is unlawful for any person to sell, purchase, manufacture, or deliver, or possess with intent to sell, purchase, manufacture, or deliver, a controlled substance.
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(2)(a) It is unlawful for any person:
1. To distribute or dispense a controlled substance in violation of the
provisions of this chapter relating thereto.
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5. To keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, 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.
Cocaine is a controlled substance listed among those described in Section 893.03, Florida Statutes.
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 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, punishable as provided in s. 775.082, s.
775.083, or s. 775.084.
During the month of May, 1990, an undercover investigator purchased cocaine at the Lucky Lady on nine separate occasions. The time frame for those purchases ranged from May 5 through May 29, 1990. Apparently, all of the transactions took place within areas of the licensed premises open and available for public use: the bathroom, the bar counter, or the kitchen. The repeated and flagrant violations of the drug laws on the premises in this case give rise to a presumption that such activity was negligently overlooked by the Respondent. Lash Inc. v. State, Department of Business Regulation, 411 So.2d
276 (Fla. 3rd DCA 1982). Accordingly, the Department has established that the Respondent is guilty of violating Section 561.29, Florida Statutes, as alleged in the Emergency Order of Suspension and Notice to Show Cause.
Further, the Respondent, by himself or through his employees, maintained the video poker machines in order to permit bar patrons to play the games for money. Therefore, the Department has established that the Respondent is guilty of violating Section 561.29, Florida Statutes, as alleged in the Emergency Order of Suspension and Notice to Show Cause.
