STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1371

)

MELBA MOSCA, d/b/a )

71 BAR AND GRILL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on March 17, 1994, in Miami, Florida.

APPEARANCES

For Petitioner: Richard D. Courtemanche, Jr.

Assistant General Counsel

Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent: Louis J. Terminello

Terminello & Terminello, P.A. 2700 Southwest 37th Avenue Miami, Florida 33133-2728

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses alleged in the notice to show cause and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By a nine-count notice to show cause dated March 10, 1994, petitioner charged that respondent, the holder of an alcoholic beverage license, either personally or through her agent, servant or employee, violated the provisions of Section 893.13(1)(a), and therefore Section 561.29(1)(a), Florida Statutes, by the sale or delivery of controlled substances on the licensed premises (Counts

1-8), and the provisions of Sections 823.10 and 893.13(2)(a)5, and therefore Section 561.29(1)(a), Florida Statutes, by maintaining her licensed premises for the illegal keeping, selling or delivering of controlled substances (Count 9).

Count 8 was voluntarily dismissed by petitioner at hearing.

Respondent filed a timely request for hearing disputing the allegations set forth in the notice to show cause, and the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called Luis King, an officer with the City of Miami Beach Police Department, but offered no exhibits. Respondent testified on her own behalf and called Helia Mercado as a witness. Respondent's exhibit 1 was received into evidence.

The transcript of hearing was not ordered, and the parties were granted ten days from the date of hearing to file proposed findings of fact. The parties' proposals are addressed in the appendix to this recommended order.

FINDINGS OF FACT

The bar

1. At all times pertinent hereto, respondent, Melba Mosca, held alcoholic beverage license number 23-00737, series 2-COP, for the premises known as 71 Bar and Grill (the "premises"), located at 1220 Normandy Drive, Miami Beach, Dade County, Florida.

   
   

   The investigation

   
   

2. On January 28, 1994, Officer Luis King of the Miami Beach Police Department, operating undercover, entered the licensed premises as part of an investigation of illegal drug activity.

   
   

3. The premises is a small bar, containing one main bar, a pool table, a pinball machine and a jukebox. At the time he entered, Officer King observed between 15 and 20 patrons, a female bartender, and another individual behind the bar, later identified as "Dave."

   
   

4. At the time, Dave appeared to Officer King to be the manager or in charge of the premises since he had the keys to the register, full access to the bar and the remainder of the premises, and actively controlled the bartender and patrons. During subsequent visits, Officer King discovered that Dave was the son of the owner, respondent Melba Mosca, and his activities in the bar, from bartending, scheduling the bartenders, and ordering bar supplies and food, confirmed his employment and management status in the bar. 1/

   
   

5. That evening, Officer King observed one Phillipi Blanco (Flip), a known narcotics dealer, on the premises, and the pattern of his activities suggested to Officer King that Flip might be dealing narcotics. Accordingly, Officer King resolved to return to the premises on another occasion.

   
   

6. On February 11, 1994, Officer King returned to the premises at or about 9:30 p.m., and noticed Dave, the only employee on the premises, tending the bar. Dave appeared very agitated that evening, consistent with being under the influence of some controlled substance, and exhibited some strange behavior, such as exposing his genitalia while working behind the bar. On one occasion that night, Dave locked himself in the men's restroom with unknown patrons for approximately one-half hour, leaving the bar unattended.

7. That same evening, Officer King met with Eugene Scott, who he had met the previous night, in the men's restroom, and Scott offered to sell Officer King one plastic baggie of cocaine for $30. Officer King accepted, and paid Scott $30 in exchange for the cocaine. 2/

   
   

8. On February 12, 1994, Officer King returned to the licensed premises at or about 7:30 p.m. Officer King did not recall if Dave was on the premises that evening, but about 8:40 p.m. he approached Eugene Scott by the back door and asked Scott if he could purchase some more cocaine. Scott stated that he did not have any cocaine but that he did have some marijuana. In exchange for $10, Officer King purchased a baggie of marijuana from Scott. As noted, this transaction occurred near the back door, and was not observable from the bar.

   
   

9. During the evening of February 19, 1994, Officer King returned to the licensed premises to continue his investigation. While at the premises, Officer King played pool with a patron known as Manuel Fernandez (Manny), who he knew from previous visits and during the course of that game asked Manny if he could purchase some cocaine. Manny refused. Later, Officer King observed Flip and an unknown patron enter the restroom. Officer King and Manny entered the restroom and Officer King asked Flip if he could buy some cocaine. Flip refused, because he "did not know " Officer King "well enough." Immediately after Flip left the restroom, Manny asked Officer King what he wanted and Officer King replied that he wanted to purchase $20 worth of cocaine. Officer King handed Manny $20 and a few minutes later Manny joined Officer King at the pool table and handed him a plastic baggie, secreted inside a matchbook, containing cocaine. Dave was in the bar at the time, but the proof fails to demonstrate that he observed or had the opportunity to observe any of these discussions or transactions.

   
   

10. On March 1, 1994, at or about 7:45 p.m., Officer King returned to the licensed premises to continue his investigation, and during the course of that visit engaged Dave in a game of pool. While playing pool, Officer King was approached by a patron known as "Gennie," who Officer King had observed on the premises previously. Gennie asked Officer King if he needed anything and Officer King replied that he wished to purchase $20 worth of cocaine.

    
    

11. Officer King gave Gennie $20 and Gennie approached Dave and asked if he had any cocaine. Dave replied that it would be a little while, and shortly thereafter he left the premises. A few minutes later Dave returned with an unknown male, entered the men's restroom, and locked the door. A few minutes later, Dave exited the restroom, and he and Gennie engaged in a hand-to-hand transaction. Gennie then went to the lady's restroom, and on her return handed Officer King a plastic baggie of cocaine and explained she had taken a "hit" before delivering it to him.

    
    

12. Later that evening, Officer King asked Gennie if she could get him another $20 worth of cocaine. Gennie replied that would be "no problem," and approached Dave and asked him for another $20 worth of cocaine. Shortly thereafter, Dave and the unknown male again entered the men's restroom and locked the door. When he exited a few moments later, Dave went directly to Gennie and they again engaged in a hand-to-hand transaction. Gennie then went to the lady's restroom, and when she emerged a few moments later handed Officer King a small plastic baggie containing cocaine. Gennie again advised Officer King that she had taken a "hit" prior to delivery, as "her payment".

    
    

13. On March 4, 1994, Officer King returned to the licensed premises to continue his investigation. Upon entering the premises Officer King went directly to the restroom and was followed by Scott. Scott asked Officer King if

    he "needed anything." Officer King told Scott he wished to purchase some cocaine, and later that he wished to purchase some marijuana and crack cocaine.

    
    

14. Scott advised Officer King that it would be a while before he could get the cocaine, but that he could get the marijuana and crack cocaine immediately for $10 each. Officer King gave Scott $20, and Scott left the premises. A few minutes later, Scott returned to the premises and handed Officer King a plastic baggie containing marijuana and a rock of crack cocaine.

    
    

15. Officer King then left the premises, but returned about 30 minutes later. While Officer King was playing pool with Dave, Scott returned to the premises, approached Officer King, and handed Officer King a plastic baggie containing cocaine. This transaction occurred openly, with no attempt by Scott to conceal the transaction from Dave.

    
    

    The owner's explanation

    
    

16. Respondent, Melba Mosca, is 70 years of age, and has owned the 71 Bar and Grill since April 1993. According to respondent, she has been very alert to prevent drugs from being present on the premises, has signs posted in the bar prohibiting drugs, and has instructed her bartenders not to allow drugs and to phone the police if they see any drugs. Respondent further averred that in October 1993 she was hospitalized for an operation, and her ability to supervise the premises since that time was impaired. Notwithstanding, she was on the premises two to three times a day, and at shift change. According to respondent, her son Dave "watched" the premises for her when she was ill, but was not an employee. The testimony of Helia Mercado, respondent's nighttime bartender, was consistent with that of respondent.

    
    

17. As heretofore noted in endnote 1, the testimony of respondent and Ms. Mercado that Dave was not an employee or agent of the owner was rejected as not persuasive or credible. Indeed, respondent's own testimony that Dave "watched" the premises for her, and Officer King's observation of his activities, compel the conclusion that Dave was an agent or employee of the owner.

    
    

18. The testimony of respondent and Ms. Mercado that they had never observed any narcotics activity on the premises, as well as the efforts that were taken to discourage it, while of questionable credibility, stands unrefuted. Indeed, there is no proof of record that respondent was present on the premises when any of the transactions occurred that are the subject matter of the notice to show cause, and no proof that she or any of her agents or employees, except for Dave, were ever in a position to observe, much less observed, those or any other illicit activities on the premises. Under such circumstances, and given the limited number of transactions, the limited time of day at which they occurred, and the surreptitious nature of the majority of the transactions at issue, it cannot be concluded that respondent, based on the competent proof of record, fostered, condoned, or negligently overlooked such illegal activity.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

20. At issue in this proceeding is whether respondent violated the provisions of Section 561.29(1)(a) or (c), Florida Statutes. In cases of this

    nature, the petitioner bears the burden of proving its charges by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987), and Slomowitz v. Walker, 492 So.2d 797 (Fla. 4th DCA 1983).

    
    

21. Pertinent to this case, Section 561.29, Florida Statutes, provides:

    
    

    1. The division is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when it is determined or found

       by the division upon sufficient cause appearing of:

       1. Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises . . . 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 . . .

          * * *

          (c) Maintaining a nuisance on the licensed premises.

          
          

22. Section 893.13(1)(a), Florida Statutes, makes it "unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance." Cannabis, commonly known as marijuana, and cocaine are such controlled substances. Section 893.03(1)(c) and (2)(a)4, Florida Statutes. Moreover, Section 893.13(7)(a)5, Florida Statutes (formerly Section 893.13(2)(a)5, Florida Statutes), makes it unlawful for any person to "keep or maintain any store, shop . . . building . . . or other structure or place which is resorted to by persons using controlled substances, or which is used for keeping or selling them" in violation of Chapter 893, Florida Statutes. Finally, Section 823.10, Florida Statutes, declares that any "store, shop . . . [or] . . . building . . . which is visited by persons for the purpose of unlawful using any substance controlled under chapter 893 . . . or which is used for the illegal keeping, selling, or delivering of the same, shall be deemed a public nuisance."

    
    

23. While a literal reading of Section 561.29(1)(a) and (c), Florida Statutes, would suggest that a licensee is absolutely liable for violations of law committed on his premises, existent law holds that the holder of an alcoholic beverage license is not an absolute insurer against such violations. Woodbury v. State Beverage Department, 219 So.2d 47 (Fla. 1st DCA 1969), and Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962). Indeed, a licensee "may be guilty of violating the beverage law and of operating a nuisance [only] 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. Department of Business Regulation, 448 So.2d 1109, 1111 (Fla. 1st DCA 1984).

    
    

24. Here, there was no evidence that the respondent had any knowledge of the illegal drug transactions. Accordingly, to find her guilty of violating the beverage law or of operating a nuisance, would require a finding that the nature and number of illegal transactions permits "a factual inference leading to the conclusion that such violations of law were either fostered, condoned or negligently overlooked by the licensee, notwithstanding her absence from the premises on the dates in question. Pauline v. Lee, supra, at pages 364.

    Indeed, as noted by the court in Charlotte County Lodge v. Department of Business Regulation, 463 So.2d 1208, 1212 (Fla. 1st DCA 1985):

    [I]n those instances where courts have sanctioned revocation by the DBR because of simple negligence on a licensee's part for failing to exercise due care in the

    supervision of agents or employees who engage in unlawful activity on the licensee's premises, the courts have found repeated and flagrant violations by employees which allow an inference that said violations had been fostered, condoned, or negligently overlooked by the licensee.

    
    

    Accord, Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla.

    1st DCA 1985): "Flagrant," by definition, means "Extremely or deliberately conspicuous; notorious; shocking." The American Heritage Dictionary of the English Language, New College Edition, p. 498 (1979). Obviously, the same standard would apply should the licensee, as here, be charged with permitting patrons to engage in unlawful activity on the licensed premises.

    
    

25. As heretofore noted in the findings of fact, the subject transactions were not shown to be so frequent and flagrant as to compel the conclusion that respondent fostered, condoned, or negligently overlooked such illegal activity. Under such circumstances, the notice to show cause should be dismissed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the notice to show

cause.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of April 1994.

WILLIAM J. KENDRICK

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 15th day of April 1994.

ENDNOTES

1/ In concluding that Dave was an employee or agent of respondent and managed the premises on her behalf, the testimony of respondent and Helia Mercado, which was to the contrary, has not been overlooked. Such testimony was not, however, persuasive or credible, and has been rejected.

2/ Here, petitioner contends that Scott was an employee of the bar, which respondent denies. Such contention is predicated on Officer King's observations which demonstrated that on one or more occasions he observed Scott run errands for Dave, such as picking up potato chips, hot dog buns and change as well as cleanup around the pool table, sweep, and pick up, bottles. Scott was not, however, observed otherwise working at the bar, and these isolated incidents are as consistent with the acts of a friend or volunteer to Dave as those of an employee. Accordingly, it is concluded that the proof fails to support the conclusion that Scott was an employee of the premises.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Unnecessary.

2-4. Addressed in paragraph 1.

1. Addressed in paragraph 2.

2. Unnecessary detail.

7 & 8. Addressed in paragraphs 2 and 4, otherwise unnecessary detail. 9-12. Addressed in paragraphs 6 and 7, otherwise unnecessary detail.

13. Addressed in paragraph 8.

14-16. Addressed in paragraph 9.

17-22. Addressed in paragraphs 10-12.

23-27. Addressed in paragraphs 13-15.

28-34. Addressed in paragraphs 16-18.

Respondent's proposed findings of fact are addressed as follows:

1. Unnecessary.

2-4. Addressed in paragraph 1.

1. Addressed in paragraph 2.

2. Unnecessary detail.

7 & 8. Addressed in paragraphs 2 and 4, otherwise unnecessary detail. 9-12. Addressed in paragraphs 6 and 7, otherwise unnecessary detail.

13. Addressed in paragraph 8.

14-16. Addressed in paragraph 9.

17-22. Addressed in paragraphs 10-12.

23-26. Addressed in paragraphs 13-15.

27. Addressed in paragraph 4, otherwise subordinate or unnecessary detail. 28-34. Addressed in paragraphs 16-18, otherwise subordinate.

COPIES FURNISHED:

Richard D. Courtemanche, Jr. Assistant General Counsel Division of Alcoholic Beverages

and Tobacco

1940 North Monroe Street Tallahassee, Florida 32399-1007

Louis J. Terminello Terminello & Terminello, P.A. 2700 S.W. 37th Avenue

Miami, Florida 33133-2728

John J. Harris, Acting Director Department of Business

and Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Business

and Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. A

Docket for Case No: 94-001371

Orders for Case No: 94-001371