STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 91-6574
)
BERNARD JORDAN, d/b/a CLUB )
ZANZIBAR, )
)
Respondent. )
)
RECOMMENDED ORDER
On December 5 and 6, 1991, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.
APPEARANCES
For Petitioner: Monica Atkins White, Esquire
Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
For Respondent: Robert B. Morrison, Jr., Esquire
Morrison, Gilmore & Clark 610 West Horatio Street Tampa, Florida 33606
STATEMENT OF THE ISSUES
The issues in this case are framed by the Notice to Show Cause issued by the Petitioner, the Department of Alcoholic Beverages and Tobacco (the Department), on or about October 9, 1991. The Notice to Show Cause contains a total of 32 counts. Twenty nine (29) counts accuse the Respondent, Bernard Jordan, d/b/a Club Zanzibar, of permitting an agent, servant, patron, or employee to unlawfully possess, sell or deliver a controlled substance (cocaine) to an undercover informant or law enforcement officer on the licensed premises in violation of Sections 893.13(1)(a) and 893.13(1)(f) within Section 561.29(1)(a), Florida Statutes. One count accuses the Respondent of permitting an agent, servant, patron, or employee to unlawfully possess, sell or deliver five (5) liters of non tax paid whiskey (moonshine) to an undercover informant or law enforcement officer on the licensed premises in violation of Sections
and 562.451 within Section 561.29(1)(a), Florida Statutes. 1/ One count accuses the Respondent of unlawfully keeping or maintaining the licensed premises for the illegal keeping, using, selling or delivering of substances controlled under Chapter 893.03, in violation of Sections 823.10 and
893.13(2)(a)(5), within Section 561.29(1)(a), Florida Statutes. Finally, the last count accuses the Respondent of failing to exercise due diligence in supervising the licensed premises, allowing it to be used by agents, servants, patrons, or employess for the purpose of possessing, selling, delivering and using illegal substances controlled under Chapter 893.03 (coccaine) and 562.451 (moonshine), 2/ in violation of Sections 823.10 and 561.29(1)(c), Florida Statutes.
PRELIMINARY STATEMENT
On or about October 9, 1991, the Department issued the Notice to Show Cause described in the preceding paragraph and an Emergency Suspension Order directed to the Respondent. They were served on the Respondent on October 10, 1991. The Respondent declined the opportunity for "a prompt and speedy administrative hearing" on October 17, 1991, and the matter was referred to the Division of Administrative Hearings on October 15, 1991, with a request that a final formal administrative hearing be scheduled for one of several suggested dates. By Notice of Hearing issued on October 24, final hearing was scheduled for two of the suggested dates, December 5 and 6, 1991.
At the final hearing, Joint Exhibit 1, a sketch of the licensed premises, was admitted in evidence during the Department's case-in-chief. The Department also called its undercover special agent and its undercover informant as witnesses in its case-in-chief. It also had Petitioner's Exhibits 1, 2, 4 (a through e), 5 and 6 admitted in evidence. In the Respondent's case, the Respondent himself and five other witnesses testified. The Respondent also had Respondent's Exhibits 2 through 8 admitted in evidence. In rebuttal, the Department recalled its undercover special agent and called two other witnesses, an undercover Tampa Police officer and a Department enforcement supervisor.
At the conclusion of the hearing, the Respondent ordered the preparation of a transcript of the final hearing, and the parties were given ten days from the filing of the transcript in which to file proposed recommended orders. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 91-6574.
In the Petitioner's Proposed Recommended Order, the Department voluntarily dismissed counts 4, 5, and 24 of the Notice to Show Cause because the evidence presented established that the alleged incidents did not take place on the licensed premises. 3/
FINDINGS OF FACT
The Respondent, Bernard Jordan, has owned and operated the Club Zanzibar, located at 2132 Main Street, Tampa, Hillsborough County, Florida, for approximately nine years. He holds alcoholic beverage license number 39-00839, series 4-COP, issued by the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, authorizing the sale of alcoholic beverages for consumption on the premises. (He also operates a package store on the premises.)
When the Respondent began operating under his license in 1983, there was much less drug activity in the vicinity than there is now. The clientele of the Club Zanzibar was mixed, in the sense that it included the community's professional and blue collar workers, and also law enforcement employees; but the clientele generally was a stable and settled crowd. Supporters of a local
community boys' club regularly met at the Club (and continued to meet there up to the time of the emergency suspension on October 10, 1991.)
During the early years of the Club, the package store part of the business had two entrances, and the less controlled access to and egress from the premises did not present a problem for the Respondent. There was relatively little loitering and drinking on the street in front of the Club.
Notwithstanding the relatively stable environment, the Respondent did not ignore the potential for unlawful activity on the premises. He utilized an Employee Handbook that all new employees had to read and, after completing a month of probationary employment, sign. Among other things, the handbook informed the employees:
If a customer is suspected of performing any unlawful acts in this business, the police will be contacted. . . . Do not accuse a customer of any unlawful acts, if not seen by the employee of the establishment. If the employee is using, has or obtaining [sic] drugs, they will be dismissed immediately. (PLEASE READ NOTICE CONCERNING DRUGS).
* * *
DUE TO RECENT SUSPICIONS OF DRUGS AND OTHER ILLEGAL MATTERS BEING BROUGHT ON THESE PREMISES, ANYONE ENTERING THIS ESTABLISHMENT IS SUBJECT
TO BEING POLITELY CHECKED, AS A MEASURE TO PROTECT THE OPERATION OF THIS BUSINESS. WE OFFER OUR DEEPEST APOLOGIES, BUT POSITIVELY NO
DRUGS OR ANY OTHER ILLEGAL SUBSTANCES ARE ALLOWED.
* * *
No one is allowed to LOITER on the grounds of the establishment and no one should be
standing in front of door exits or entrances. 4/ Club employees also were informed on a regular basis that no illegal drugs were allowed on the premises and that employees should keep them out if they could or, if not, should notify the Respondent, who either would take care of it himself or call the police. The Respondent also would "bar" anyone caught with or strongly suspected of having, illegal drugs on the premises. The "bar" was permanent or until lifted by the Respondent. The employees are told to enforce the "bar," and if someone who has been barred ignores an employee's enforcement measures, the employee is supposed to tell the Respondent, who enforces it himself or, if necessary, calls the police. But the Respondent did not hold regular, formal
meetings to remind the employees of
Respondent's prohibition against the possession, use or sale of illegal drugs and of their responsibility with respect to patrons
violating the policy. He did not require
his employees to complete employment applications
or be screened. Nor did he polygraph his employees.
The Respondent also posts five-by-seven inch placards in conspicuous places throughout the premises informing customers and employees alike: Illegal Activities
Warning: This establishment is firmly against any illegal behavior! . . .
Drugs: Drugs are positively prohibited on these premises! Anyone seen or reported with any form of Narcotics will IMMEDIATELY be reported to the police without warning!
(A similar message is related as to dangerous weapons.)
Although the Respondent makes efforts to enforce the basic "no drugs" policy, he does not always follow the letter of his warnings and announced enforcement measures. He does not, for example, report drug violators to the police "immediately" and "without warning," as the placards state. Indeed, there is no evidence that the Respondent ever reports drug violations to the police or asks for police or Department assistance to address the issue of drugs on the premises.
In recent years, the environment around and in the Club Zanzibar has changed drastically. In recent years, crack cocaine has become a serious problem in the vicinity. Crack is sold predominantly by a crowd that is younger than the historical Club Zanzibar clientele. This younger crowd now mixes with the historical Club clientele. It also loiters around in the street in front of the Club and in the general vicinity. Street sales of crack are so frequent in the area that the street has been likened to a drug supermarket. Anyone, anywhere in Tampa, can come to Main Street in this part of the city and buy crack with almost no wait. The problem has become so bad that the Tampa Police Department has opened a sector office nearby; yet, the drug problem in the area persists despite the greater police presence.
Because of changed circumstances in the neighborhood, the Respondent has altered the premises to eliminate one of the two entries to the package store to make it a little easier to monitor those going in and out of the package store. The Respondent also has placed a mirror in the premises to allow whoever is tending bar to monitor the foyer of the Club for possible loitering or illegal activity from a particular vantage point near the cash register. But he did not take steps to improve the lighting in the licensed premises. Nor did he vigorously police his establishment. The Respondent did not hire a manager or adequate security guards to police the licensed premises. The Respondent has volunteers who work for him on weekends and, to some extent, watch for illegal activities on the premises. But these volunteers are retirees who are not particularly effective and their primary function seems to be to collect the cover charge for the Respondent. Even assuming that they were actively policing the establishment, they were not capable of doing the job that should have been done.
In response to apparent complaints, the Department sent an undercover special agent and an undercover confidential informant (the CI) into the Club Zanzibar on or about May 31, 1991. (An undercover Tampa Police detective also went as a back-up.) The CI and Agent Murray entered the Club and took a seat at the bar. In a short while, a black male known to the CI as a drug pusher who went by the initials "C.C." walked up to them. (C.C. also had told the CI that he (C.C.) was the Respondent's brother, but the evidence did not prove that C.C.
was in fact the Respondent's brother.) The CI told C.C. he wanted to buy "a 20" ($20 worth of crack cocaine.) C.C. left for the men's room and returned with a plastic baggy. He held it up waist high or higher to show them that the baggy contained crack cocaine. He removed some of the crack from the baggy and gave it to the CI. 5/ After examining the crack, the CI told Agent Murray to pay
C.C. the $20.
There were about 15 people in the Club during the transaction on May 31, 1991. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. 6/
No extraordinary effort was made to hide the transaction on May 31, 1991. /7 But neither was the transaction done in an open manner for all to see. The evidence was not clear whether anyone in the bar during the transaction on May 31, 1991, other than the participants, observed the drug deal or heard any of the related conversation.
On June 7, 1991, Agent Murray and the CI again entered the Club. There they talked to Wayne Fowler, who gave them the impression that he was employed at the bar as a manager or bouncer. (However, the evidence did not prove that Fowler was ever employed by the Respondent in any capacity.) The CI asked for C.C. Fowler told him that he (Fowler) was "holding C.C.'s stuff" and asked if they wanted to buy from him or wait for C.C. The CI said they would buy from Fowler, and Fowler passed some crack to the CI's lap, under the level of the bar (but not actually underneath the bar counter top). Agent Murray similarly passed a $20 bill to the CI, who passed it to Fowler.
There were about 20 people in the Club during the transaction on June 7, 1991. But the evidence was not clear whether anyone in the bar during the transaction on June 7, 1991, other than the participants, observed the drug deal or heard any of the related conversation.
On June 12, 1991, the CI and Agent Murray, together with a backup from the Tampa Police Department, again went to the Club. This time, they did not see anyone in the Club to buy drugs from, and the CI and Agent Murray were leaving when Fowler came in and met them in the foyer, which was not visible from throughout the Club's interior. Fowler immediately asked them if they wanted to buy crack. They said yes, and Fowler sold them "a 20." The whole transaction took no more than four or five seconds.
The participants in the transaction on June 12, 1991, spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone passing through the foyer at the time. Although there ordinarily are people entering and leaving the Club through the foyer at fairly regular intervals, it was not proven that anyone passed by during the couple of seconds the drug deal lasted. 8/ The evidence was not clear whether anyone in the bar during the transaction on June 12, 1991, other than the participants, observed the drug deal or heard any of the related conversation.
On June 14, 1991, the CI and Agent Murray again went to the Club Zanzibar to make a drug buy. Shortly after they entered and sat down at the bar, Fowler came in and went over to them at the bar and asked if they wanted to buy crack. They told him they did, and Fowler left the premises. He returned a short while later and walked up behind the empty stool between them and shook
some crack out of a handkerchief onto the empty stool. (The bar stools had a back; and the seats were below bar level.) The CI picked up the crack and gave it to Agent Murray, who gave Fowler a $20 bill.
There were about 15 people in the Club during the transaction on June 14, 1991. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants.
No extraordinary effort was made to hide the transaction on June 14, 1991. But neither was the transaction done in an open manner for all to see. The crack was blocked from general view by the bar on one side, by the bar stool back and Fowler on the opposite side, and by the CI and Agent Fowler on either side of the empty stool. The whole transaction took only about five seconds. Although there were people moving about in the Club, as usual, the evidence did not prove that anyone in the bar during the transaction on June 14, 1991, observed the drug deal.
On June 18, 1991, the CI, Agent Murray and their backup undercover detective from the Tampa Police Department returned to the Club Zanzibar to make drug buys. Although there were about 15 people in the premises, apparently no one was selling drugs to them, and the CI left to try to find Fowler. The CI found out that a man named Don Vanderhorst was holding Fowler's crack and would sell some to them. Vanderhorst returned with the CI to the Club. There, Vanderhorst showed them a plastic bag containing crack, holding it in a partially concealed manner between waist and chest height, sold them $10 of crack and left.
After buying from Vanderhorst on June 18, 1991, the three law enforcement personnel stayed on the premises. A short time later, Fowler came in and went directly over to the CI and Agent Murray to see if they wanted to buy some more crack from him. Fowler passed to the CI, at waist level, a piece of crack folded up in a torn piece of brown paper the size of a quarter coin. Fowler said he would sell it to them for $10. He changed a $20 bill for them and made the sale.
There were about 15 people in the Club during the transactions on June 18, 1991. The participants in the transactions spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants.
No extraordinary effort was made to hide the transactions on June 18, 1991. But neither were the transactions done in an open manner for all to see. View of the Vanderhorst transaction was blocked from the back and sides by the three participants. Although customers generally move around and about inside the Club on a fairly regular basis, these transactions took place on the side of the "U"-shaped bar opposite the entrance to the Club, between the bar and the right hand perimeter wall of the premises, near the corner where one end of the bar "dead-ends" on that side into the front perimeter wall of the inside of the premises. There generally is much less traffic in this area since it is a "dead end." An unidentified female bartender might have been able to observe the transactions, but the evidence was not clear whether anyone in the bar during the transaction on June 18, 1991, other than the participants, observed the drug deal or heard any of the related conversation.
On June 19, 1991, the CI and Agent Murray returned to the Club Zanzibar. This time, Fowler was seated at a table inside. After they were seated at the bar, Fowler approached them and asked them what they wanted. Agent Murray answered that they wanted "a 20." Fowler told them quietly and privately that they would have to wait because of the customer seated next to Agent Murray. When the customer left, Fowler proceeded to take out a folded up torn piece of brown paper. Holding it at waist level, he showed them the crack that was in it. He took two pieces and passed them to the CI, who passed them to Agent Murray, who gave the CI a $20 bill to give to Fowler.
There were about 15 people in the Club during the transactions on June 19, 1991. The participants in the transaction spoke in a quiet tone in the presence of the customer seated next to Agent Murray but otherwise in a normal conversational tone. The juke box was playing, as usual, and the normal conversational tone probably could be overheard only by someone sitting immediately adjacent to the participants.
No extraordinary effort was made to hide the transaction on June 19, 1991. But neither was the transaction done in an open manner for all to see. The participants partially blocked the view from the back and sides. The evidence did not prove that anyone in the bar observed the drug deal on on June 19, 1991.
On June 24, 1991, Fowler and Vanderhorst were outside talking when the CI and Agent Murray arrived at the Club Zanzibar. Shortly after they entered, Fowler came in and approached them to ask them if they wanted to buy crack. Fowler said that Vanderhorst was "holding my stuff." He left and went to the back of the bar (where the bathrooms are). (Apparently, Vanderhorst also had entered the Club with Fowler and went to the back of the premises, perhaps to the bathroom.) Fowler returned with two pieces of crack which he passed to the CI. Agent Murray gave Fowler $20.
There were about ten people in the Club during the transaction on June 24, 1991. No extraordinary effort was made to hide the transaction. The evidence was not clear whether anyone in the bar during the transaction on June 24, 1991, other than the participants, observed the drug deal or heard any of the related conversation.
When the CI and Agent Murray arrived at the Club Zanzibar on July 1, 1991, once again Fowler and Vanderhorst were outside on the street. Fowler followed the two inside and approached them to ask if they wanted crack. They said they did, and Fowler passed some crack to the CI for $20.
There were about 20 people in the Club during the transaction on July 1, 1991. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants.
No extraordinary effort was made to hide the transaction on July 1, 1991. But neither was the transaction done in an open manner for all to see. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence was not clear whether anyone in the bar during the transaction on July 1, 1991, other than the participants, observed the drug deal or heard any of the related conversation.
On July 5, 1991, the CI and Agent Murray entered the Club Zanzibar to buy drugs but did not see anyone to sell to them. The CI had to go outside looking for Fowler. He found Fowler, who told him he (Fowler) was waiting for his "supply," i.e., the person supplying him with cocaine. The CI brought Fowler back into the Club with him. There, Agent Murray asked Fowler for "some play," i.e., some crack to buy. Fowler told her he would have to "cut" it, i.e., convert it to crack, and left. About five minutes later, Fowler came back in and passed a piece of crack to the CI.
There were about 10-15 people in the Club during the transaction on July 5, 1991. The Respondent and his sister were working on the premises on July 5, 1991. No extraordinary effort was made to hide the transaction on July 5, 1991. But neither was the transaction done in an open manner for all to see. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence was not clear whether anyone in the bar during the transaction on July 5, 1991, other than the participants, observed the drug deal or heard any of the related conversation.
On July 8, 1991, Fowler again was outside on the street when the CI and Agent Murray arrived at the Club. Fowler followed them inside. The Respondent was tending bar. Fowler quietly and privately told the CI and Agent Murray that they would have to watch out for the Respondent. Fowler left them and returned in a minute or two. Fowler kept a close eye on the Respondent and, about three or four minutes later, got an opportunity to do the drug deal without the Respondent seeing it. While keeping a close eye out for the Respondent, Fowler passed two pieces of crack to the CI, who passed the crack to Agent Murray. Murray passed $20 back to Fowler through the CI.
Besides the Respondent, there were about 10 people in the Club during the transaction on July 8, 1991. Except when they were lowering their voices so the Respondent would not hear them, the participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants.
Except for the efforts to keep the Respondent from seeing it, no other extraordinary effort was made to hide the transaction on July 8, 1991. But neither was the transaction done in an open manner for all to see. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence was not clear whether anyone in the bar during the transaction on July 8, 1991, other than the participants, observed the drug deal or heard any of the related conversation.
When the CI and Agent Murray arrived at the Club on July 16, 1991, they again saw Fowler outside on the street. Fowler followed them in but stopped in the foyer area and beckoned them to come to the foyer. There, Fowler informed them that the Respondent had barred him from the Club and that they would have to do the deal on the street. The CI protested that he did not want the police to see him. Fowler left, and the CI and Agent Murray returned to the Club. When they left the Club some time later, Fowler met them in the foyer. Within a matter of five to ten seconds, Fowler had passed a single piece of crack to the CI, and Murray passed $20 to Fowler.
Although there ordinarily are people entering and leaving the Club through the foyer at fairly regular intervals, it was not proven that anyone
passed by during the couple of seconds the drug deal lasted. The evidence was not clear whether anyone in the bar during the transaction on July 16, 1991, other than the participants, observed the drug deal or heard any of the related conversation.
On July 18, 1991, Fowler was sitting outside on the street when the CI and Agent Murray arrived at and entered the Club. Fowler did not follow them in. Vanderhorst was inside, and they asked him for crack, but he did not have any to sell. Eventually, they left. Fowler apparently had been waiting for them in the street and, as the CI opened the door to exit the premises, Fowler met him and kept the door propped open while he offered to sell them crack. Fowler passed crack to CI, and Murray gave the CI $20 to give to Fowler.
People were walking by on the street, and it would have been possible for someone in the street or walking into the foyer to observe the drug deal that took place on July 18, 1991. But it was not proved that anyone in the bar during the transaction on July 18, 1991, other than the participants, observed the drug deal or heard any of the related conversation.
On July 22, 1991, Fowler stopped the CI and Agent Murray before they could even get into the Club. Again dealing in the doorway with the door propped open, Fowler passed crack to the CI (in a manner such that Murray herself, who was not looking directly at the transaction, was unable to observe it). The CI passed the crack to Murray, who gave Fowler $20.
Again, as on July 18, people were walking by on the street, and it would have been possible for someone in the street or entering the foyer to observe the drug deal that took place on July 22, 1991. But it was not proved that anyone in the bar during the transaction on July 22, 1991, other than the participants, observed the drug deal or heard any of the related conversation.
The next day, the CI and Agent Murray returned to the Club Zanzibar. They didn't see Fowler or Vanderhorst. The CI saw someone named Eddie Hall, who was known to the CI to be a "watch dog" for drug pushers. The CI approached him and asked for Fowler and Vanderhorst. Hall left looking for them and returned to tell them that the Respondent had barred Fowler from the Club and that he couldn't come in. Hall told the CI that Fowler was outside and would sell them "a half a packet" (apparently, four pieces of crack) for $20. Just then, Fowler appeared just inside the entrance to the Club and beckoned the CI and Murray to come to him. In all, Fowler was inside the Club for just a matter of seconds (four to five). Fowler met them in the foyer, and the CI told him that they declined the offer to sell "a half a packet" because they were looking for a full "packet." Fowler became irate, apparently at the illogic of their refusal to buy anything. He yelled and screamed and carried on for thirty seconds to a minute until they were in the street. Eventually, the CI and Agent Murray relented in their dubious position and bought a "half a packet" for $20 on the street in front of the Club. 9/
Except for Fowler's yelling and carrying on in the foyer and in the street, the participants in the transaction on July 23, 1991, spoke in a normal conversational tone. The juke box was playing, as usual, and the conversational tone probably could be overheard only by someone sitting immediately adjacent to the participants. As for the Fowler's yelling and screaming, it might have been heard by the bartender, a female named Brunette, and she did not do anything about it before they all moved into the street, but the evidence did not prove that she would have been able to tell that Fowler's yelling and screaming necessarily involved a drug deal. The evidence did not prove that anyone in the
bar during the transaction on July 23, 1991, other than the participants, observed the drug deal or heard any of the related conversation.
On July 25, 1991, the CI and Agent Murray again went to the Club Zanzibar. The Respondent was behind the bar. His sister was working there, too. After a time, the Respondent left, and Eddie Hall approached them. He told them that the Respondent was gone and that Fowler wanted to see them outside. The CI objected to doing the deal in the street and went to the front door of the Club and called out to Fowler to come in. Fowler went as far as the foyer and met them there. No employees were nearby. In conducting the transaction, Fowler accidentally dropped a white crack "rock" on the foyer floor. He nonchalantly bent down as if he were tying his shoe and picked it up. 10/ Fowler passed the crack to CI, who passed it to Agent Murray, who gave the CI $20 to give to Fowler.
Other than Fowler's effort to pick up the crack he had dropped without attracting attention, no other extraordinary effort was made to hide the transaction on July 25, 1991. But neither was the transaction done in an open manner for all to see. It was conducted in the foyer where no employee saw it. Indeed, there is no evidence that anyone saw the transaction other than the participants. There is no evidence that anyone in the bar during the transaction on July 25, 1991, other than the participants, observed the drug deal or heard any of the related conversation.
On July 26, 1991, the CI and Agent Murray returned to the Club Zanzibar. As they were about to enter, they saw Vanderhorst just outside. Vanderhorst followed them in. The CI went over to Vanderhorst to ask about crack. Vanderhorst said Fowler was waiting to get some from his girl friend. He left to look for them. Later, Vanderhorst returned and told the CI and Murray that Fowler had some crack and would meet them in the foyer. They went to meet Fowler and bought $20 of crack from him.
The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants.
No extraordinary effort was made to hide the transaction on July 26, 1991. But neither was the transaction done in an open manner for all to see. It was conducted in the foyer where no employee saw it. Indeed, although there were 10-15 people in the Club at the time, there is no evidence that anyone in the bar during the transaction on July 26, 1991, other than the participants, observed the drug deal or heard any of the related conversation.
On August 2, 1991, Vanderhorst followed the CI and Agent Murray into the Club Zanzibar. Vanderhorst approached them and told them his crack was in his car. Vanderhorst left and returned with a $10 piece of crack. The drugs and money passed inside the bar.
There were about 10-15 people in the Club during the transaction on August 2, 1991. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants.
No extraordinary effort was made to hide the transaction on August 2, 1991. But neither was the transaction done in an open manner for all to see.
This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence did not prove that anyone in the bar during the transaction on August 2, 1991, other than the participants, observed the drug deal or heard any of the related conversation.
On August 14, 1991, the CI and Agent Murray went to the Club Zanzibar and apparently found no one to sell them drugs. The CI went outside to find someone named "Dragon," who was leaving when they came in. The CI returned with someone named James Royal, who had "some dubs" and sold them "a 20" of crack. Royal passed the crack to the CI at chest height (i.e., above the bar). Holding it between his two fingers, the CI showed it to Murray for a few seconds (three or four) before giving it to her. Murray gave Royal $20 for the crack.
There were about 15 people in the Club during the transaction on August 14, 1991. No extraordinary effort was made to hide the transaction on August 14, 1991. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence did not prove that the two female bartenders on duty--Pat and Lena--or anyone in the bar during the transaction on August 14, 1991, other than the participants, observed the drug deal or heard any of the related conversation.
On August 26, 1991, the Respondent was working in the package store when the CI and Agent Murray entered the Club Zanzibar. Lena was tending the bar. A man known as Adelbert Cliatt or Al Clyde (Clyde) came up to the CI, who asked if Clyde was "still in the business." Clyde said he was but that someone else was holding his "stuff" to reduce the chances that he would get caught. During the conversation between Clyde and the CI, the Respondent came into the Club to try to fix the juke box. The Respondent was kneeling with his back to the bar, about 8-10 feet away from where they were sitting at the bar. While the Respondent was still working on the juke box, someone named Toby Adams came in and joined them. Clyde told Adams, apparently the person holding Clyde's crack, that the CI had asked for "a 20" and to go get. Adams gestured towards the Respondent, afraid to discuss it further or to deal while the Respondent was there. Clyde and Adams then left the Club. When they returned with the drugs, Clyde and Adams just stood behind where Murray and the CI were seated at the bar and waited until the Respondent was finished with the juke box and returned to the package store. Then Clyde took out a piece of crack on a piece of paper to display it to the CI at about chest level. Twice during the five or seven seconds Clyde was displaying the crack to the CI, the CI told Clyde in hushed tones to lower the crack so that it would not be as easy for others to see. The CI also complained that it was not "a 20," but Clyde insisted that it was, pointed out that he was also selling the "shake," i.e., the loose crack particles, that was on the paper. Clyde then folded the paper and gave it to the CI.
While the Respondent did not return to the bar area while the transaction was taking place on August 26, 1991, Lena was in the vicinity the whole time and was able to see what was happening, but she showed no interest and did nothing to stop it. It was not proven that the Respondent or any other of the 15 or so people in the Club, other than the participants, observed the drug deal or heard any of the related conversation.
Two days later, on August 28, 1991, Agent Murray and the CI returned to the Club Zanzibar and met Fowler on the street outside the Club. As the three headed towards the entrance, Fowler reminded them that he was barred from
the Club, and Fowler passed crack to Murray in the foyer. There was no evidence that anyone other than the participants saw the transaction or knew that drugs had been passed. Agent Murray and the CI then continued into the Club.
Although Fowler had not yet been paid for the crack, he did not follow them but stopped at the end of the bar nearest the entrance. The Respondent saw Fowler and went over to talk to him. The evidence was not clear what was said, but no more than a minute later, Fowler left. 11/
While the CI and Agent Murray were inside the Club, someone named Clements came in and approached them to tell them that Fowler was "waiting for his package," i.e., his $20. The CI told him, "later," and Clements left. A little while later, Fowler came back into the Club, went up to the CI and Murray at the bar near the entrance, and began to yell at them for not giving Clements Fowler's money. The CI or Murray apparently told Fowler to keep it down, because Fowler informed them that he had seen the Respondent leave, apparently to assure them that it was safer now (even though Brunette still was there). While Agent Murray handed Fowler the money, the CI explained to Fowler that they were not sure Clements would give Fowler the money and that they wanted to give it to him personally. This seemed to satisfy Fowler.
Brunette was able to hear Fowler arguing loudly with Murray and the CI and did not intervene or try to find out what the argument was about. But the evidence did not prove that Brunette could hear or could tell what it was that they were saying.
The CI and Agent Murray were back at the Club on September 10, 1991. Apparently, there was no one inside to sell them drugs, so the CI went outside. On his return, he told Murray that Fowler was outside "doing a deal." A while later, Fowler came into the Club and joined them. He held a small brown bag up to about chest level to show them the crack inside and then gave it to them. Agent Murray gave Fowler $20.
During the conversation between the CI and Fowler on September 10, 1991, the CI asked if Fowler was "back in with " the Respondent, to which Fowler answered that he was. The evidence was not clear whether the CI meant, or that Fowler understood, anything by the question other than that the CI thought Fowler was barred from the Club and was surprised to see him back inside. The CI also asked Fowler if Fowler worked at the Club. Fowler glanced back at the CI, making a face as if to ask, "are you crazy?" and answered, "no way." The CI then asked, "you mean [the Respondent] wants to bar you but still wants you to do favors for him?" and Fowler answered, "yes." However, again, the meaning of this exchange was ambiguous.
There were about ten people in the Club during the transaction on September 10, 1991. No extraordinary effort was made to hide the transaction. The Respondent was not there. The bartender on duty, Debra, was new and did not work at the Club very long before her employment was terminated. The evidence was not clear whether she witnessed the transaction or heard the conversation, or heard or saw anything suspicious (although it is possible that she did.) The transaction took place on the side of the bar opposite the entrance to the Club, between the bar and the right hand perimeter wall of the premises, half way to the corner where the "U"-shaped bar "dead-ends" on that side into the front perimeter wall of the inside of the premises. Although customers generally circulate fairly regularly throughout the premises, there generally is much less traffic in this area since it near the "dead end." See Finding of Fact 22, above. There were people playing dominos at a low table in the corner behind the bar where the transaction occurred, but it was not proven that the
transaction could have been observed from the domino table. The evidence did not prove that anyone in the bar during the transaction on September 10, 1991, other than the participants, observed the drug deal or heard any of the related conversation.
The CI and Agent Murray returned to the Club on September 13, 1991. The Club was crowded; there were 20-25 people there. Lena was tending bar; the Respondent's wife was in the package store; the Respondent himself was not there. At one point, while the CI and Murray were seated at the bar, a man called "Big John" Polite walked up to them, and the CI told him that Murray wanted "a 20." Polite asked if they wanted to do the deal in the Club, and the CI said, "yes." Polite left to go to the men's room, where he said his crack was, and returned to where they were sitting. He walked up between them and passed the crack to the CI under bar level. The CI passed it to Murray, who put it on a napkin on the bar counter top, wrapped it up, and put it in her pocket. Murray then passed $20 to Polite.
The man sitting next to Murray at the bar on September 13, 1991, easily could have seen the crack, but the evidence did not prove that he did, or that he would have known what it was. Others also could perhaps have recognized that a drug transaction was occurring, but the evidence did not prove that anyone else in fact knew it was happening. With the juke box playing, and the crowd making noise, probably only someone actually involved in the conversations with Polite would have been able to hear them.
When the CI and Agent Murray were in the Club on September 17, 1991, it was again crowded, with about 25 people inside. Brunette and a man named Carl were tending bar. There was confusion in the testimony as to who Carl was. The CI understood him to be the Respondent's cousin, Carl Jordan. The Respondent testified that he had no cousin named Carl Jordan. He admitted he had a cousin name Carl Warmack, who sometimes accompanied him to the Club, but said his cousin Carl was severely retarded and incapable of tending bar or doing anything other than simple menial chores. The CI and Agent Murray did not seem to think that the person they identified as Carl Jordan was retarded.
Seated at the bar on September 17, 1991, on the side where there is less traffic circulating, 12/ Murray and the CI observed an unidentified female patron holding three crack "rocks" in her open palm while fingering them with her other hand. She did this in the open so that others seated on that side of the bar also would have been able to see. But it was not proven that anyone else in fact saw what she was doing or knew she had crack in her hand.
A little later, Clyde walked up to them, and Murray asked for "a 20." Clyde left and returned shortly to pass some crack to Murray under bar level. Murray put the crack in her pocket and passed $20 to Clyde.
"Carl" did nothing about the drug deal between Clyde and Murray. Much of the time while this transaction was taking place, "Carl" was talking to the CI within about three feet from where Murray was sitting. He could have seen the transaction but the evidence did not prove that "Carl" in fact saw it or knew it was taking place. Nor did the evidence prove that Brunette saw the transaction or knew it was taking place.
On September 19, 1991, Agent Murray and the CI again went to the Club. Lena was tending bar. The Respondent's daughter also was there. It was crowded, with about 25 people inside. During the time they were there, Murray saw Clyde and asked him for "a 20." Clyde pulled a small brown bag out of his
shirt pocket, took out three pieces of crack, and passed them to Murray below the level of the bar where they were sitting. Murray then passed Clyde $20. There were people sitting all around the bar, but the evidence did not prove that anyone saw the transaction to that point. Then, Murray held the crack up for Lena to see and asked her if it was "hard white," a common illegal drug dealing slang intended to describe the potentially dangerous kind of crack that is "cut" with baking soda. Lena lit a cigarette lighter to see it better, looked at it for a moment and answered, "it looks beige to me." Crack that is "cut" in the acceptable manner has a beige-like color and is referred to as "beige" in illegal drug dealing slang. It is found that Lena was using the drug dealing slang.
On September 26, 1991, Agent Murray and the CI were at the Club sitting at the bar. The CI called over to a man named David Glover, a/k/a Jake, who was playing dominoes. Glover came over and sat in the bar stool next to the CI. There, Glover sold the CI crack for $25.
There were 15-20 people in the Club on September 26, 1991. No extraordinary effort was made to hide the transaction. But neither was the transaction done in an open manner for all to see. This transaction took place on the side where there is less traffic circulating. See Finding of Fact 61, above. However, after the deal, the CI called the bartender, Debra, over and asked for a napkin. He put the crack on the napkin on the bar counter top and asked her if she knew what it was. She looked at it and, knowing what it was, simply said, "you better get it off the bar." Debra was terminated shortly afterwards for reasons not disclosed by the evidence. (The Respondent said only that "she didn't work out.")
According to the evidence, Agent Murray's last visit to the Club Zanzibar was on October 8, 1991. She and a backup sat at the part of the bar closest to the domino table. Clyde walked up, and Murray asked for "a 20." She gave him $20, and Clyde went to the domino table to talk to someone and then left. The unidentified person with whom he had spoken came over and told Murray that he could get whatever she wanted if Clyde couldn't. Murray told him that Clyde had just left with her money and that she hoped Clyde had what she wanted. A little later, Clyde returned and passed Murray a crack "rock" at the bar under bar level height.
After the deal with Clyde, the Respondent walked behind and past where Clyde and Murray were, but the evidence did not prove that the Respondent saw anything suspicious occurring.
After the drug deal with Clyde, Murray beckoned to the unidentified male with whom she had spoken earlier. He gestured acknowledgement and came over shortly. Murray asked him for $10 worth of crack. He said he would get it and returned shortly to say it would have to be "a 20." Murray said, "OK," and passed him a $20 bill. He passed her the crack at waist level as he walked past her.
There were about 15 people in the Club on October 8, 1991. The Respondent was there. Brunette and "Carl" were behind the bar. No extraordinary effort was made to hide the transaction. But neither was the transaction done in an open manner for all to see. From where Murray was sitting, her back and Clyde's back were between the transaction and the domino table. The unidentified pusher sneakily slipped the crack to Murray as he walked past between her and the vantage from the domino table. The evidence did not prove that anyone in the bar during the transaction on October 8, 1991,
other than the participants, observed the drug deal or heard any of the related conversation. The Respondent testified that he later barred Clyde for drug activity.
On or about October 10, 1991, the Club Zanzibar was raided by Tampa Police, arrests were made, and an Emergency Suspension Order issued by the Department was served. The Club has not been in operation since then.
There is no evidence that the Respondent ever asked the Division or the Tampa Police for help in controlling illegal drug use on his premises. He did not ask the police to send undercover agents into the area and his establishment to make cases against customers who broke the drug laws or to "test" his employees. There is no evidence that the Respondent gave the Tampa Police intelligence information regarding the source of illegal drugs in the area. Nor did he work as closely or as diligently with local community leaders as he could have.
Since the Club Zanzibar has been closed, illegal drug activity in the immediate vicinity has decreased markedly. This is a common occurrence for some period of time after a police raid. Longer periods of decreased drug activity also can be explained by the arrest of some of the participants in the illegal activities and by the fewer number of people in the area, which translates to fewer potential drug buyers in the area. The extended duration of decreased illegal drug activity after the raid in this case (almost two months, through the time of the final hearing) is somewhat unusual.
CONCLUSIONS OF LAW
Section 561.29, Fla. Stat. (1991), contains the following relevant provisions:
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:
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 . . . permitting another on the licensed premises to violate any
of the laws of this state or of the United States . . ..
Violation by the licensee . . . of any laws of this state or any state or territory of the United States.
Maintaining a nuisance on the licensed premises.
* * *
(3) The division may impose a civil penalty against a licensee for any violation mentioned in the Beverage Law, or any rule issued pursuant thereto, not to exceed $1,000 for violations arising out of a single transaction. If the licensee fails to pay the civil penalty, his license shall be suspended for such period of time as the division may specify.
Section 823.10, Fla. Stat. (1991), declares a place or building visited by persons for the purpose of unlawfully using any controlled substance, or where controlled substances are illegally kept, sold, or used, to be a nuisance.
80. Section 893.13(2)(a)(5), Fla. Stat. (1991), makes it unlawful for any person:
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. Section 893.03(2)(a)4., Fla. Stat. (1991). Except when specifically authorized by statute (e.g., when prescribed by a licensed physician), it is a violation of state law to sell, use, deliver, or possess cocaine. Section 893.13(1)(a)1. and (1)(f), Fla. Stat. (1991).
As reflected in the Findings of Fact above, the evidence in this case, as a whole, did not prove that the Respondent himself violated Section 893.13, Fla. Stat. (1991), or that the Respondent either condoned or fostered illegal drug activities on the licensed premises. But it was proven that the Respondent's employee, Lena, and several patrons, including those who dealt with the CI and Agent Murray, violated Section 893.13, Fla. Stat. (1991), on the premises. (It was not proven that Fowler or C.C. were employees.) "The licensee may be guilty of violating the beverage law and of operating a nuisance if he is guilty of intentional wrongdoing or if he fails to exercise due diligence in supervising and maintaining surveillance over the licensed premises." Jones v. State Department of Business Regulation, 448 So.2d 1109, 1111 (Fla. 1st DCA 1984).
In Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA
1962), the evidence consisted of five separate solicitations for prostitution by five different employees of the licensee. The court held:
The persistence and practiced manner with which the solicitations [for prostitution] described by the state's witnesses were made is sufficient to permit a factual inference leading to the conclusion that such violations of law were either fostered, condoned or negligently overlooked by the licensee notwithstanding his absence from the premises on the dates in question.
Id. at 364. See also Taylor v. State Beverage Department, 194 So.2d 321, 325 (Fla. 2nd DCA 1967).
There is less basis for an inference of negligent oversight in a case involving relatively discreet drug transactions than in cases involving open solicitation for prostitution or lewd and lascivious behavior. 1/3 But in Lash, Inc. v. State Department of Business Regulation, 411 So.2d 276 (Fla 3rd DCA 1983), the operative facts before the court were:
The license revocation stemmed from narcotics violations on appellant's premises. The evidence established that on five occasions over a period of a week, undercover beverage agents purchased controlled substances from two of appellant's employees.
At page 278 of its decision, the court in Lash applied the Pauline v. Lee standard for revocation or suspension of a beverage license to the facts of that case:
Under Section 561.29(1), where the unlawful activity is committed by the Licensee's agent, simple negligence is sufficient for revocation. Admittedly, the courts have refused to uphold revocations when the evidence showed only that on one occasion the licensee's employees violated the laws, and that the licensee otherwise took measures to comply with them. (Citations omitted.) Where, however, the laws are repeatedly and flagrantly violated by the employees, an inference arises leading to the conclusion that such violations are either fostered, condoned or negligently overlooked
by the licensee, notwithstanding his absence from the premises when the violations occur. (Citations omitted.) Consequently, if the evidence supports the conclusion that the licensee failed to exercise ordinary care in the maintenance of the licensed premises or the supervision of his employees, he can be found negligent and his license revoked. (Citation omitted.)
Where the violations are, as here, committed
in a persistent and recurring manner, consisting of more than one isolated incident, the courts have not hesitated to find that such violations were either fostered, condoned, or negligently overlooked by the licensee, even though he may have been absent at the time of the commission of such. (Citations omitted.) In the present case, the recurring sales were made possible by appellant's failure to supervise the premises and his employees in a reasonably diligent
manner, properly leading to the license revocation.
In this case, except for the single time Lena handled crack on September 19, 1991, none of the violations were by employees. But there were many more violations over a much longer period of time than in the Lash case. In addition, the evidence was clear that the Respondent knew the extent of the illegal drug problem in the vicinity of, and inside of, his establishment. (He had to bar more than one patron for illegal drug activity on the premises.) As reflected in the Findings of Fact, it is concluded that, taking all of these factors into consideration, the Respondent "fail[ed] to exercise due diligence in supervising and maintaining surveillance over the licensed premises." Jones
v. State Department of Business Regulation, supra, at 1111.
The Respondent did make it a policy to, and was diligent in taking steps to, be sure that all employees knew his policies against illegal drugs on the premises. He has employees who passed probation sign a pledge to follow his policies. But the Respondent did not require his employees to complete employment applications or be screened. The Respondent also did not consider polygraphing his employees.
The Respondent spent time at the Club but did not hire a manager or adequate security guards to police the licensed premises, especially while he was not there. (Even assuming that the retirees who volunteered on weekends to collect cover charges for the Respondent were actively policing the establishment, they were not capable of doing the job that should have been done.) The Respondent did not hold regular, formal meetings to remind the employees of Respondent's prohibition against the possession, use or sale of illegal drugs and of their responsibility with respect to patrons violating the policy. He did not vigorously police his establishment.
The Respondent had signs on the premises prohibiting illegal drugs possession, use or sale. But he took no steps to improve the lighting in the licensed premises.
The Respondent did not ask the Division or the Tampa Police for help in controlling illegal drug use on his premises. He did not ask the police to send undercover agents into the area and his establishment to make cases against customers who broke the drug laws or to "test" his employees. There is no evidence that the Respondent gave the Tampa Police intelligence information regarding the source of illegal drugs in the area. Nor did he work as closely or as diligently with local community leaders as he could have.
In conclusion, although the Respondent knew, and should have known because of the level of illegal drug activities in the area, that illegal drug activity at his establishment was a serious problem, he did not take reasonable steps to police his establishment. The evidence in this case proved that the measures the Respondent took fell short of the legal standard of care. See Jones v.
State Department of Business Regulation, supra. Cf. also Dept. of Bus. Reg. v. Ocean Drive Hotel Corp., 12 F.A.L.R. 1194 (DBR 1988).
The Division also charges that the Respondent was "[m]aintaining a nuisance on the licensed premises" in violation of Sections 561.29(1)(c) and 823.10, Fla. Stat. (1991), and was violating Section 893.13(2)(a)(5), Fla. Stat. (1991), which makes it unlawful for any person "[t]o keep or maintain any store
. . . 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." A literal reading of those statutes, like 561.29(1)(a), "would indicate that a liquor licensee is under the onus of suspension or revocation . . . irrespective of his own personal fault in connection therewith." Pauline v. Lee, supra, at 364. But, like Section 561.29(1)(a), those statutes must be read to require proof of culpable responsibility by the licensee as a result of his own negligence, intentional wrongdoing or lack of diligence in order to warrant discipline of his license. As previously explained, proof in this regard was sufficient in this case.
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 suspending the Respondent's license for six months from entry of final order and fining the Respondent $1,000.
RECOMMENDED this 21st day of February, 1992, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1992.
ENDNOTES
1/ This was one of the counts that were dismissed voluntarily in the Petitioner's Proposed Recommended Order. See page 4, below.
2/ Again, the moonshine count was dismissed voluntarily in the Petitioner's Proposed Recommended Order.
3/ See footnote 1, above.
4/ It is not clear from the evidence whether all of these provisions were in the original handbook or whether some or all of them may have been added since 1983.
5/ Agent Murray described a "fist over palm, then open the fist" method of physically delivering illegal drugs. She was taught in drug enforcement training that this was a "typical" way of passing illegal drugs. At times she almost made it seem that this typical motion served as a form of unspoken communication between the seller and buyer, saying "these are the drugs you wanted." She seemed to be saying that a cognoscente, whether a frequent participant in drug deals or a trained law enforcement officer, would understand this form of communication. At times she likened the motion to a handshake.
This led to examination comparing the so-called handshake motion to other typical handshakes or greetings in the black community. Actually, the motion used to deliver the illegal drugs was an effort to conceal them from view during delivery. Other methods were used (other than the so-called "handshake" method.)
6/ Except where otherwise specifically noted in these findings, these conditions prevailed during all of the drug deals at the Club, and it was not proven that anyone other than the participants in fact overheard the conversations involved.
7/ It is conceivable that extraordinary efforts to be furtive or to hide the transaction could have the opposite effect, i.e., of drawing attention to it.
Generally, and unless otherwise specifically noted in these findings, all of the transactions were carried out in this casual or nonchalant manner so as to attract a minimum of attention.
8/ Neither the CI nor Agent Murray could pinpoint when someone walked through the foyer area during a drug deal. The CI felt sure it happened at least once, but he couldn't further describe the incident.
9/ Agent Murray testified that the transaction occurred in the foyer, but her testimony did not adequately explain the apparently illogical return to the foyer to transact the deal.
10/ Although there is no evidence that anyone other than the participants in the transaction was in the foyer when Fowler dropped the crack, the Department nonetheless suggests that, if Fowler was concerned about getting caught by the Resopndent, he would have suddenly looked around anxiously or in panic when he dropped the crack. But, in fact, Fowler's reaction is entirely consistent with a desire not to be caught by the Respondent. It would have drawn less attention from anyone who might have been observing than the reaction the Department suggests.
11/ There was confusion in the testimony about whether the Respondent or the other bartender on duty, Brunette, sold Fowler a beer while he was standing at the bar. If one of them did, Fowler apparently was required to leave and drink the rest of the beer off the premises, consistent with his being barred.
12/ See Finding of Fact 61, above.
13/ The first application of the inference appears to be Pauline v. Lee, supra. It has since been applied in a number of "exotic" dancer cases. See, the G & B of Jacksonville cases beginning at 371 So.2d 137, and Golden Dolphin No. 2, Inc.
v. State Division of Alcoholic Beverages and Tobacco, 403 So.2d 1372 (Fla. 5th DCA 1982).
APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-6574
To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact.
Accepted and incorporated.
Accepted and incorporated. However, just because the CI proved himself to be generally reliable does not necessarily mean that all of his testimony is completely accurate.
Rejected as not proven that one had to go inside the Club Zanzibar to get drugs. Drugs were readily available on the street in front of and around the Club. As the findings show, many drug deals occurred inside the Club because the CI asked the pushers in, or went out and found them and brought them in, or the pushers saw them go into the Club and followed them in. Otherwise, accepted and incorporated.
Rejected as not proven. This alleged admission by the Respondent would have been extremely adverse to the Respondent's interests. It was related in testimony by the CI, who made no written notes during the entire investigation. Although it was perhaps the most critical piece of evidence in the entire case on the issue of the Respondent's alleged complicity, it also was not noted by Agent Murray, who took extensive notes on everything else. (At least, she never testified about this statement, even on rebuttal after the Respondent's attorney cross-examined the CI on it.)
5.-6. Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as to the Respondent as not proven; otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven that Fowler bought the beer from the Respondent. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. However, as the findings suggest, neither was Fowler's behavior, or the Respondent's conduct, wholly inconsistent with Fowler's having been barred.
9.-10. Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven. (The entire testimony reflects not an admission that the Respondent never was at the Club but that he could not always be at the Club because of other responsibilities.)
Second and fourth sentences, accepted and incorporated. The rest, rejected as not proven.
Second sentence, rejected as not proven. Except as to Lena, third sentence, rejected as subordinate to facts contrary to those found. Last sentence, rejected because the predicate was not proven. See 4., above. Otherwise, accepted and incorporated.
14.-15. Accepted and incorporated to the extent not subordinate or unnecessary.
There were a minimum of about ten to a maximum of about 25. Otherwise, accepted and incorporated.
Accepted and incorporated.
Rejected as not proven. The transactions proven to have been observed are set out in the Findings of Fact.
In part, rejected as conclusions of law and argument; in part, accepted but subordinate to facts found and unnecessary.
In part, rejected as argument; in part, accepted but subordinate to facts found and unnecessary.
Accepted but subordinate to facts found and unnecessary.
First sentence, rejected as not proven. Second sentence, rejected as not proven ("nothing") or as argument ("next to nothing").
First sentence, rejected as not proven that the Respondent "allowed" the premises to be so used in the sense that he had actual knowledge and expressly condoned the activity; accepted and incorporated that he did not use due diligence under the circumstances to prevent the activity. The rest is accepted but subordinate to facts found and argument.
Rejected as not proven that it was "in plain view of everyone and anyone in the premises." Otherwise, accepted and incorporated.
Rejected as not proven that Fowler was introduced by anyone other than himself. The CI also drew his own conclusions as to Fowler's connection with the Club from his observations of Fowler. Otherwise, accepted and incorporated.
Last sentence, rejected as not proven that "any one of them" could have observed the transaction. It was proven only that it is possible that any one of them could have observed the transaction. Otherwise, accepted and incorporated.
Accepted but unnecessary.
Rejected as not proven.
29.-31. Accepted and incorporated to the extent not subordinate or unnecessary.
32. Rejected as not proven.
33.-36. Accepted and incorporated to the extent not subordinate or unnecessary.
Last clause of the last sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated to the extent not subordinate or unnecessary. 39.-40. Last sentence of each, rejected as not proven. See 26, above. Also,
they were not all inside the foyer. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Last sentence, rejected as not proven. See 26, above. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated to the extent not subordinate or unnecessary.
Last sentence, rejected as not proven. See 26, above. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven that it was raised "up in the air," in the sense that it was held overhead, or that it was "in plain view of everyone and anyone." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven that the Respondent sold Fowler the beer. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Accepted but unnecessary.
Rejected as not proven that the crack was held "so anyone in the bar area could see what he was holding" or that Fowler was asked "if he was going back to the licensee now." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven that the crack was held "so anyone in the bar area could see what she was holding." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
In part, rejected as not proven. (No findings can be based on Clyde's hearsay statements. Also, the CI asked about borrowing money to buy crack; he did not make a statement about having told Agent Murray that Clyde could "set her up.") Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven that the Respondent was there. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven that "anyone in the bar area could see it." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven that the Respondent was inside the premises when the transaction took place. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact.
Rejected as contrary to facts found and to the greater weight of the evidence that the enforcement measures eliminated or identified "any and all illegal activity." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated.
Accepted but unnecessary.
Rejected as contrary to facts found and to the greater weight of the evidence that Lena was not using drug slang. Otherwise, generally accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated to the extent not subordinate or unnecessary.
In part, accepted and subordinate to facts found; in part, rejected and subordinate to facts contrary to those found. In part, also rejected as argument.
Generally, accepted and subordinate to facts found. However, at the same time, the motion also could resemble one person handing something to another and, depending on the circumstances, could arouse suspicion even if the item being handed over was not seen.
Accepted and incorporated to the extent not subordinate or unnecessary. Some parts rejected as argument.
9.-14. Accepted and incorporated to the extent not subordinate or unnecessary.
15. Rejected in part as contrary to the greater weight of the evidence and as argument (that the testimony "is contradicted" and that it is "not plausible that any loan would be considered.") (The check was owed by the CI, not by Agent Murray.) Otherwise, accepted but subordinate to facts contrary to those found.
16.-19. In part, rejected as argument; but, generally, Accepted and incorporated to the extent not subordinate or unnecessary.
Last clause, rejected in part as contrary to facts found and to the greater weight of the evidence. (The "additional workers" were volunteers who were there only on weekends and whose main job seems to have been to collect cover charges. The Respondent did some training of his employees, but he could have done more and better training.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Rejected in part as contrary to facts found and to the greater weight of the evidence. The Respondent did not "avail himself" to the assistance of the Tampa Police. If he "availed himself" of other community groups, he could have done more.
COPIES FURNISHED:
Monica Atkins White, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
Robert B. Morrison, Jr., Esquire Morrison, Gilmore & Clark
610 West Horatio Street Tampa, Florida 33606
Richard W. Scully, Director Div. of Alcoholic Beverages
and Tobacco
Dept. of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, Florida 32399-1000
Donald D. Conn, Esquire General Counsel
Department of Business Regulation 725 South Bronough Street Tallahassee Florida 32399-1007
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.
| Issue Date | Proceedings |
|---|---|
| Feb. 04, 1994 | Final Order filed. |
| Jun. 25, 1992 | Petitioner`s Exceptions to Recommended Order filed. |
| Mar. 19, 1992 | Petitioner) Motion for Extension of Time of File Exceptions filed. |
| Feb. 21, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held 12/5-6/91. |
| Jan. 17, 1992 | (Respondent) Closing Argument; Recommended Order filed. |
| Jan. 16, 1992 | Petitioner`s Proposed Recommended Order filed. |
| Jan. 06, 1992 | Transcript (Volumes 1&2) filed. |
| Jan. 02, 1992 | cc: Letter to B. Morrison from A. Bennett (re: payment for transcript) filed. |
| Nov. 26, 1991 | Petitioner`s Unilateral Response to Prehearing Order filed. |
| Nov. 22, 1991 | Letter to Robert B. Morrison, Jr. from Monica A. White (re: receiving formal request for Discovery) filed. |
| Oct. 24, 1991 | Notice of Hearing sent out. (hearing set for Dec. 5, 1991; 9:00am; Tampa). |
| Oct. 24, 1991 | Prehearing Order sent out. |
| Oct. 24, 1991 | Prehearing Order sent out. |
| Oct. 17, 1991 | Initial Order issued. |
| Oct. 15, 1991 | Emergency Order of Suspension; Request for Hearing, letter form; Agency referral letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 03, 1992 | Agency Final Order | |
| Feb. 21, 1992 | Recommended Order | Evidence of multiple sales of illegal drugs on and near premises proved licensee lacked due diligence and was culpably responsible. |
