STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on April 11, 1995, in Miami, Florida.

APPEARANCES

For Petitioner: Miquel Oxamendi

Senior Attorney

Department of Business and Professional Regulation Northwood Centre

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

Howard Sohn

2534 Southwest Sixth Street Miami, Florida 33135-2926

STATEMENT OF THE ISSUES

The central issue in these cases is whether the Respondents are guilty of the violations alleged; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On or about February 9, 1995, the Department of Business and Professional Regulation, Division of Alcoholic Beverages (Department) issued an emergency order of suspension and notice to show cause in connection with Myriam J. Grau, d/b/a Feelings Restaurant. The licensed premises, alcoholic beverage license no. 23-15849, series 2 COP, is located at 2496 Palm Avenue in Hialeah, Florida. The matter was forwarded to the Division of Administrative Hearings on February 17, 1995 for formal proceedings and assigned DOAH case no. 95-0703.

Similarly, the Department issued an emergency order of suspension and notice to show cause in connection with Feelings Restaurant, Inc. t/a Feelings Restaurant, II on February 9, 1995. The licensed premises, alcoholic beverage license no. 23-15990, series 2 COP, is located at 231 East 4th Avenue in Hialeah, Florida. The matter was forwarded to the Division of Administrative Hearings on February 21, 1995 for formal proceedings and assigned DOAH case no. 95-0704.

Finally, the Department issued an emergency order of suspension and notice to show cause in connection with Hialeah Dolphin, Inc. d/b/a Hialeah Dolphin Restaurant and Lounge on February 9, 1995. The licensed premises, alcoholic beverage license no. 23-02256, series 2 COP, is located at 4660 Palm Avenue in Hialeah, Florida. The matter was forwarded to the Division of Administrative Hearings on February 21, 1995 for formal proceedings and assigned DOAH case no. 95-0705.

Subsequently, the cases were consolidated for hearing. At the hearing, the Department presented the testimony of the following witnesses: Addy Mesa, a special agent employed by the Florida Department of Law Enforcement; Elio Olivia, a detective with the Hialeah Police Department; and Michael Barsky, a detective employed by the Hialeah Police Department. The Department's exhibits numbered 1 through 24 have been admitted into evidence.

The Respondent, Myriam Grau testified in her own behalf and Respondent's exhibit 1 has been accepted into evidence. A transcript of the proceedings has not been filed. The parties were granted ten days to file their proposed recommended order but a motion for extension of that time was granted. Specific rulings on the proposed findings of fact submitted are included in the appendix at the conclusion of this order

FINDINGS OF FACT

1. This matter deals with three licensed premises all owned or controlled by the Respondent, Myriam Grau. Ms. Grau is either the sole proprietor or the sole corporate officer and shareholder for each of the named businesses.

   
   

2. Feelings Restaurant located on Palm Avenue in Hialeah, Florida, holds series 2 COP license no. 23-15849.

   
   

3. Hialeah Dolphin also located on Palm Avenue in Hialeah, holds series 2 COP license no. 23-02256.

   
   

4. Feelings Restaurant II which is located on East 4th Avenue holds series

   2 COP license no. 23-15990.

   
   

5. It is undisputed that Ms. Grau, her husband, and her mother-in-law are responsible for the day-to-day operations of the three licensed premises.

6. The Petitioner is the state agency charged with the responsibility of regulating licensed premises which sell or dispense alcoholic beverages.

   
   

7. Special Agent Addy Mesa, formerly employed by the Division of Alcoholic Beverages and Tobacco, conducted an undercover investigation at the Feelings located on Palm Avenue.

   
   

8. On or about January 13, 1995, while engaged in such investigation, Special Agent Mesa went to the Hialeah Dolphin along with Detective Barbara Rivera and spoke with the Respondent, Ms. Grau.

   
   

9. At that time and in that place, Special Agent Mesa asked for cocaine but Ms. Grau advised her that she did not have any. Ms. Grau requested that she wait as she was expecting a delivery.

   
   

10. Special Agent Mesa waited approximately ten minutes but was unable to purchase the cocaine. After confronting Respondent regarding the delay, Ms. Grau directed Special Agent Mesa to Feelings (also on Palm Avenue) and told her to ask for Carlos or Carmen.

    
    

11. When Special Agent Mesa arrived at Feelings and found Carlos, he advised the women to wait as he, too, was waiting on someone to come.

    
    

12. Eventually, Special Agent Mesa observed a Latin male enter the licensed premises and confer with Carlos. At that time Carlos was standing behind the bar but took the Latin man behind a door to an area presumed to be a back room.

    
    

13. When Carlos returned to the bar area, Special Agent Mesa purchased illegal narcotics from him. During the sales transaction, Carlos was at the bar and, in exchange for $40.00, passed two clear plastic bags to Special Agent Mesa containing a white powder substance which was later tested and proved to be cocaine. This transaction took place in the licensed premises and could have been observed by the six or seven patrons then at the bar.

    
    

14. On another occasion, Special Agent Mesa went to the Hialeah Dolphin Restaurant with Heidi Puig. Again, as indicated above, Special Agent Mesa was working undercover. On this occasion Special Agent Mesa met a man who introduced himself as "Ricardo" and who told her he was the manager for the business.

    
    

15. Ricardo had access to a back room in which he apparently resided and gave Special Agent Mesa a business card, a copy of which has been admitted into evidence in this cause as DABT exhibit 2. Such card contains the handwritten words "Ricardo" above the printed line denoting manager and "ask for Miriam" along the bottom of the card. The remainder of the card contains the printed information for the business.

    
    

16. After talking with Ricardo for a short time, Special Agent Mesa purchased two packets of cocaine for $40.00.

    
    

17. Special Agent Mesa returned to the Dolphin on still another occasion with Detective Rivera. On this visit there were approximately six or seven patrons in the bar and Ricardo approached them when they entered.

18. After engaging in conversation for a few moments, Special Agent Mesa asked to purchase cocaine and Ricardo accommodated the undercover agent. While Special Agent Mesa waited at the bar, Ricardo went to his back room and returned with two baggies of cocaine wrapped inside a napkin. In return for the twenty dollar bills from Special Agent Mesa and Detective Rivera, the two packets containing cocaine were delivered inside the bar.

    
    

19. Thereafter, Special Agent Mesa did not return to the premises until the search warrant was executed on February 10, 1995.

    
    

20. All of the foregoing transactions took place while Special Agent Mesa was working in an undercover capacity and utilizing language that is common to transactions of this nature. Given the successfulness of her efforts to purchase illegal narcotics it is found that Special Agent Mesa communicated her intent to Respondent Grau, Carlos, and Ricardo in such a manner that they knew she was attempting to purchase cocaine.

    
    

21. Carlos and Ricardo conducted themselves in a manner which gave the appearance of being employees of the licensed premises. Both men had access to the area behind the bar. Both utilized areas presumed to be private from the public.

    
    

22. On at least one of the occasions Ricardo advised Special Agent Mesa of jobs available.

    
    

23. The conduct of the transactions was inside the licensed premises, repeated on several occasions, and open to the view of bar patrons.

    
    

24. Elio Olivia is a detective with the Hialeah Police Department. During January, 1995, while working in an undercover capacity, Detective Olivia was investigating illegal narcotic activities at the Feelings located on Palm Avenue in Hialeah.

    
    

25. On or about January 12, 1995, Detective Olivia entered the licensed premises and spoke with Carlos who was behind the counter.

    
    

26. For twenty dollars Detective Olivia purchased, and the individual Carlos sold, one packet of a white powdered substance which was tested and proved to be cocaine.

    
    

27. Later, on January 18, 1995, Detective Olivia returned to the Palm Avenue Feelings and, again, purchased cocaine from Carlos. On this occasion Carlos went from behind the bar to an office, returned to the bar, and delivered the packet.

    
    

28. Detective Olivia went to Feelings on a third date and repeated the process. Again, Carlos was observed behind the counter at the time of the transaction and Detective Olivia presumed him to be an employee of the premises based upon the manner in which he conducted himself.

    
    

29. On at least one of the occasions, Detective Olivia observed another patron at the bar purchase a packet from Carlos. While the contents of the observed packet are unknown, the manner of the transaction was consistent with Detective Olivia's experience with purchasing cocaine from Carlos.

    
    

30. Detective Olivia did not observe Respondent Grau on the licensed premises during any of the times he was there.

31. The transactions involving the purchase of illegal narcotics took place in the licensed premises and could have been viewed by the patrons of the facility. Given the fact that Detective Olivia observed at least one such transaction himself, it is found that the actions of Carlos were open and notorious to the public.

    
    

32. Michael Barsky is a detective employed by the Hialeah Police Department. At all times material to this matter, Detective Barsky was working undercover investigating illegal narcotics.

    
    

33. On or about June 15, 1994, Detective Barsky went to the Feelings located on 4th Avenue. While there, he conversed with a male later known to him as Ricardo. Detective Barsky presumed Ricardo to be an employee at the business as it appeared he had the "run of the place." That is to say, Ricardo went behind the bar, went throughout the premises, and paid winnings to patrons who prevailed on a gambling machine that was located within the business.

    
    

34. Detective Barsky went to the 4th Avenue Feelings again on October 14, 1994. On this date he met Ricardo and in exchange for twenty dollars purchased a small packet of a white powder substance which was later tested and proved to be cocaine. Although the transaction was discussed in the bar area in front of approximately five patrons, Ricardo took Detective Barsky to the mens room to make the exchange.

    
    

35. From October 14, 1994 through December 7, 1994, Detective Barsky returned to Feelings on six occasions. For each visit he purchased cocaine from Ricardo as described above except on the later occasions the exchange took place at the bar instead of in the mens room.

    
    

36. From the time of his first visit through December 7, 1994, Detective Barsky observed Respondent Grau on the licensed premises only once or twice.

    
    

37. While the date of the arrest is not certain, Ricardo was arrested for illegal drug possession sometime during Detective Barsky's investigation at Feelings (4th Avenue).

    
    

38. There came a time after Ricardo was arrested when Detective Barsky no longer observed him at the Feelings on 4th. In fact, when Detective Barsky returned to the licensed premises on January 12, 1995 (he had had a tip sales were still being made at the location), he met with an individual known as Orlando who claimed to be the new manager who could help him.

    
    

39. As with Ricardo, Detective Barsky observed that Orlando appeared to have the run of the place. He was behind the counter, went into the DJ's booth, and was never reproached by the servers who were assisting bar patrons. Additionally, Detective Barsky observed and heard Orlando giving directions to the females who "did everything" in the kitchen area. In doing so, Orlando entered areas of the premises not available to the general public.

    
    

40. As had occurred with Ricardo on the first buy, Orlando took Detective Barsky into the mens room and in exchange for twenty dollars the cocaine was purchased.

    
    

41. On the next visit, on or about January 18, 1995, Detective Barsky purchased cocaine from Orlando at the bar. Orlando took a packet from his pocket and slipped it to Detective Barsky in a secretive manner.

42. Detective Barsky returned to Feelings on several occasions thereafter. On each visit he successfully purchased cocaine from Orlando. On one occasion Orlando went to the back room before he delivered the packet to Detective Barsky.

    
    

43. On one of the later visits, on or about January 27, 1995, Detective Barsky observed the Respondent Grau with an unknown male enter the premises and exchange money for what appeared to be drugs packaged in small zip baggies. This transaction took place in the licensed premises in view of the detective.

    
    

44. Detective Barsky purchased cocaine at the Feelings on 4th Avenue at least twelve times for the period October 14, 1994 through February 3, 1995.

    
    

45. On January 18, 1995, Detective Barsky went to the Dolphin and observed the male he knew as Ricardo at that licensed premises. Ricardo was fixing lights at a pool table when the detective confronted him and sought to purchase cocaine. On this occasion as in the past, Detective Barsky purchased a twenty dollar amount of a substance which was later tested and proved to be cocaine.

    
    

46. Subsequently, Detective Barsky returned to the Dolphin and purchased cocaine from Ricardo on four additional visits.

    
    

47. On one such visit, February 2, 1995, Detective Barsky observed Ricardo and a bar patron "do" cocaine at the bar counter. This was in plain view of bar patrons and was open and notorious.

    
    

48. Respondent Grau knew that Ricardo had been arrested for illegal drugs prior to allowing him to reside at the Dolphin premises. Respondent Grau did not ask Ricardo to vacate the premises or to stay away from the licensed premises.

    
    

49. At least six of the cocaine purchases occurred after Respondent Grau knew Ricardo had been arrested for drugs.

    
    

50. Cocaine is a controlled substance the sale of which is prohibited by

    law.

    
    

    CONCLUSIONS OF LAW

    
    

51. The Division of Administrative Hearings has jurisdiction over the

    parties to, and the subject matter of, these proceedings.

52. Section 893.13(1)(a), Florida Statutes, provides, in pertinent part: (1)(a) Except as authorized by this chapter

    and chapter 499, it is unlawful for any person to sell, purchase, manufacture, or deliver, or possess with intent to sell, purchase, manu- facture, or deliver, a controlled substance.

    
    

53. Section 561.29(1), Florida Statutes, provides, in part:

    
    

    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, or elsewhere while in the scope of employment, of any of the laws of this state or of the United States, or violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages, or engaging in or permitting disorderly conduct on

          the licensed premises, or permitting another on the licensed premises to violate any of the laws of this state or of the United States; except that whether or not the licensee or his or its agents, officers, servants, or employees have been convicted in any criminal court of any violation as set forth in

          this paragraph shall not be considered in proceed- ings before the division for suspension or revocation of a license except as permitted by chapter 92 or

          the rules of evidence

       2. Violation by the licensee or, if a corporation, by any officers thereof, of any laws of this state or any state or territory of the United States.

       3. Maintaining a nuisance on the licensed premises.

          * * *

          (e) Violation by the licensee, or, if a corporation, by any officer or stockholder thereof, of any rule or rules promulgated by the division in accordance with the provisions of this chapter or of any law referred to in paragraph (a), or a violation of any such rule

          or law by any agent, servant, or employee of the licensee on the licensed premises or in the scope of such employment.

          
          

54. In this case, the agency bears the burden of proof to establish, by clear and convincing evidence, the allegations of the notices to show cause. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

55. According to the agency, the licensee either fostered, condoned or negligently overlooked the criminal activities conducted on the licensed premises. To the contrary, the Respondent, Ms. Grau maintains that there was no credible evidence that she, personally, had any knowledge of the illegal drug transactions being conducted on the licensed premises. While Respondent does not dispute that illegal drug transactions took place, she argues that employees were not involved and that such activities were not so open and notorious as to put a reasonable person on notice of the illegal acts.

    
    

56. In this case it is concluded that, based upon the record in its entirety, the clear and convincing evidence in this matter establishes that the Respondent fostered, condoned, or negligently overlooked the possession and sale of cocaine at the licensed premises. Further, the Respondent allowed an individual known to be involved with controlled substances to reside at and presume a position of involvement at the licensed facility. Finally, the credible testimony of the undercover agents linked the Respondent, Ms. Grau, to the activities in at least two instances.

57. Rule 61A-2.022, Florida Administrative Code, sets forth the penalty guidelines applicable to this matter. In accordance with that rule, the guideline penalty for a violation of Chapter 893, Florida Statutes, is revocation.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking the licenses nos. 23-15849, 23-02256, and 23-15990.

DONE AND RECOMMENDED this 30th day of June, 1995, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 30th day of June, 1995.

APPENDIX TO DOAH CASE NOS. 95-0703, 95-0704, and 95-0705

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Paragraphs 1 through 19 are accepted.

2. Paragraph 20 is clarified in the findings above as to the manner of the delivery of the cocaine (which in some instances did include a secretive manner), therefore, as drafted the paragraph is inconsistent with the total evidence presented in the case.

Rulings on the proposed findings of fact submitted by the Respondent:

1. Paragraphs 1 through 6 are rejected as comments or argument regarding Petitioner's proposed findings of fact.

2. Paragraph 7 is rejected as not supported by the weight of the credible evidence.

COPIES FURNISHED:

Miquel Oxamendi Senior Attorney

Department of Business and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1007

Louis J. Terminello TERMINELLO & TERMINELLO, P.A.

2700 S.W. 37th Avenue Miami, Florida 33133-2728

Howard Sohn

2534 Southwest Sixth Street Miami, Florida 33135-2926

Lynda L. Goodgame General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

John J. Harris, Director Division of Alcoholic Beverages and Tobacco

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-000703

Orders for Case No: 95-000703