STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 81-498

)

PROVENDE, INC., d/b/a CLUB )

ALEXANDRE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, R. L. Caleen, Jr., conducted a formal hearing in this case on Nay 22 and 26, 1981, in Miami, Florida.

APPEARANCES

For Petitioner: Dennis E. LaRosa, Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Lane L. Abraham, Esquire

Seymour Chadroff, Esquire

200 Southeast First Street, Suite 800 Miami, Florida 33131

and

Manuel Diner, Esquire Suite 1746, Biscayne Tower

Two South Biscayne Boulevard Miami, Florida 33131

ISSUES PRESENTED

Whether Respondent's alcoholic beverage license should be revoked or otherwise disciplined on grounds that (1) on several occasions, cocaine was possessed, sold, or delivered on the licensed premises by Respondent's employees in violation of state law, and (2) by virtue of such Possession, sale, or delivery of cocaine by its employees, Respondent maintained a public nuisance on the licensed premises.

BACKGROUND

By a nine-count Notice to Show Cause dated February 10, 1981, Petitioner, State of Florida Department of Business Regulation, Division of Alcoholic Beverages and Tobacco ("Division"), accuses Respondent, Provende, Inc., d/b/a Club Alexandre ("Respondent"), of violating Section 561.29, Florida Statutes,

and seeks to revoke or otherwise discipline Respondent's beverage license. Specifically, the Division alleges: that on seven separate occasions between November 23, 1980, and January 29, 1981, Respondent's employees possessed, sold, or delivered cocaine--a controlled substance--on its licensed premises; that between January 14 and January 29, 1981, Respondents premises was resorted to by persons using cocaine; and that during that period, Respondent maintained the licensed premises as a public nuisance by virtue of the alleged incidents of possession, sale, or delivery of cocaine. Respondent denies the allegations.

After referral to the Division of Administrative Hearings on March 13, 1981, this case was set to be heard on April 14, 1951.

Upon Respondent's motion for continuance, hearing was reset for May 15, 1981; by request of the parties, hearing was then rescheduled for May 6, 1981, which hearing was again continued due to the parties' reaching a tentative settlement. However, the settlement never materialized; final hearing was reset and subsequently conducted on May 22 and 26, 1981.

At hearing, the Division called D.C. Diaz, Jose Luis Mato, Emil Marrero, Louis Terminello, Louis Clark, Arthur Serig, Charles H. McEwan, Joseph A. Maggio, and Leonard H. Delmonte as its witnesses; Petitioner's Exhibit 1/ Nos. 1 through 7 were received into evidence. Respondent called as its

witnesses Mark Sokolowski, Catherine Robertson, Merta Maria Rios, Roberto Amigo Guerre, William D. Mandel, Raul J. Diaz, Alex Cachaldora, Arthur T. Stillman, M.D., and Fernando Puig; Respondent's Exhibit 1/ Nos. 1 through 9 were admitted into evidence.

During mid-proceeding, the Division voluntarily dismissed and withdrew that portion of Count 8 which alleges that Respondent and/or its employees maintained a place, i.e., the licensed premises, which was resorted to by persons using controlled substances. (Tr. 2/ 22-II-59.)

At the close of hearing, Respondent filed a Motion to Disqualify the Director of the Division from participating in further Division action concerning this case. Since this motion concerns Division action subsequent to submittal of a Recommended Order, it is beyond the jurisdiction of the Division of Administrative Hearings. The motion is therefore transmitted to the Division with this Recommended Order for its ultimate disposition.

On Nay 28, 1981, the transcript of hearing was filed; on May 29, 1981, the parties filed memoranda of law and proposed findings of fact.

Based on the evidence presented at hearing, the following facts are determined:

FINDINGS OF FACT

1. Respondent, Provende, Inc., a general partner in a limited partnership known as Alexandre, Ltd., is responsible for and operates a nightclub under the name of Club Alexandre (the "Club") at 1601 Biscayne Boulevard, Miami, Florida. In connection with its operation of Club Alexandre, Respondent holds beverage license No. 23-3953, Series No. 4-COP-SRX, which permits the sale and consumption of intoxicating beverages on the premises. (Stipulation of Parties, Testimony of Cachaldore.)

2. Club Alexandre, located within the Omni International complex, is a large, multi-faceted club. Its premises consists of two levels totaling approximately 30,000 square feet. The first level includes a restaurant, bar area, three separate dance floors, bathroom facilities, and a stage for entertainment. Buffet lunches are served as early as 11:30 a.m., followed by a cocktail hour in late afternoon, dinner, and live entertainment which continues until 3:00 a.m. The second level is used primarily for private parties, weddings, and business meetings; it is enclosed in glass, and includes banquet rooms, bathroom facilities, storage rooms, and the Club's business offices. Ordinarily, the Club employs from 45 to 50 persons as busboys, bartenders, barmaids, waiters, maitre d's, cooks, dishwashers, office staff, promoters, and buyers. Most of the employees have been hired by Alex Cachaldora--general manager of the Club, stockholder, and president of Respondent. He either hires or approves the hiring of all Club employees and is the individual responsible for managing the Club on a daily basis. (Testimony of Cachaldora.)

   
   

3. Club Alexandre is a semi-private club. Upon application, acceptance, and payment of a fee, persons may become members; public customers may also use the Club after screening at the entrance and payment of a cover charge. (Testimony of Cachaldora.)

   
   

   I.

   As to Count I

   
   

4. On November 23, 1980, at approximately 12:10 a.m., D.C. Diaz--an off- duty officer of the Miami Police Department--paid a cover charge and entered the Club Alexandre. He sat at the bar counter, ordered a drink from a young barmaid dressed in a black uniform, and asked her if she could give him some "white magic", a street term referring to cocaine. She asked how much he wanted, he said "one gram"; she then informed him that the price would be $65. (Testimony of Diaz.)

   
   

5. Diaz then gave the barmaid a $100 bill; she went to the cash register and returned with $35 in change which he gave to Diaz. She told him, "It will take between five and ten minutes." (Tr. 22-I-22.) Five to ten minutes later, a waiter--dressed in a black tuxedo-type shirt--approached from the restaurant area and gave the barmaid a folded napkin which she, in turn, gave to Diaz. He opened the napkin and found a small tinfoil packet inside containing a white powder which he suspected to be cocaine. (Testimony of Diaz.)

   
   

6. Subsequent laboratory tests by the Metropolitan Dade County Public Safety Department confirmed that the white powder obtained by Diaz from the barmaid on November 23, 1980, was cocaine.

   
   

   II.

   As to Count 2

   
   

7. On January 23, 1981, at approximately 10:30 p.m., Beverage Officers Carmen Gonzalez and Joe Mato, together with Art Serig of the Miami Police Department, entered the Club Alexandre for the purpose of conducting an undercover narcotics investigation. They proceeded to the second floor area, sat at a table, and ordered drinks. (Testimony of Mato.)

   
   

8. At approximately 12:25 am. (January 24, 1981), Officer Mato proceeded to the downstairs bar where a barmaid identified as Enid Epstein was tending bar. After ordering a drink, he asked her if she knew where he could obtain some "white magic"; she answered, "Yes, if he is still here it would be

   $65."(Tr. 22-I-53.) He agreed to the price and handed her $70. She took the money and proceeded to the kitchen area located in the rear of the premises. A few minutes later, he observed her running across the upstairs lounge area to the bar. After a brief delay, she proceeded toward the downstairs bathroom area. She then returned to Officer Mate, handed him a $5 bill folded into a small package, and explained, "This is the change that I owed you." (Tr. 22-I- 54.) He opened the folded $5 bill and found a small tinfoil packet containing a white powder which he suspected to be cocaine. (Testimony of Mato.)

   
   

9. Subsequent Dade Public Safety Department laboratory tests confirmed that the white powder obtained by Officer Mato from Enid Epstein was cocaine. (P-2.)

   
   

   III.

   As to Count 3

   
   

10. On January 24, 1981, at approximately 9:20 p.m., undercover Beverage Officers Lou Clark end Lou Terminello entered the Club Alexandre for the purpose of continuing the Division's narcotic investigation. They seated themselves at the downstairs bar area end ordered drinks from a male bartender who introduced himself as "Bill", later identified as William Mendel. Officer Clark told "Bill" that they had picked up a couple of girls and asked if there was anything to help with the party. A conversation ensued about there being a lot of "snow" in Kansas--Clark using the term's ordinary meaning--and "Bill" answering, "That is not the kind of snow I was referring to." (Tr. 22-I-132.) In response to Clark's question about obtaining something that might help with their party, "Bill" indicated his contact wasn't there at that time, but that "they should be in later." (Tr. 22-I-133.) Officers Clark and Terminello then left the premises. (Testimony of Clark, Terminello.)

    
    

11. About an hour later, the two beverage officers returned to the premises, and seated themselves at the downstairs bar. They ordered a drink from "Bill" and asked if his contact had arrived. He went over and talked to a young red-haired female barmaid--later identified as Enid Epstein-and returned to the officers; he then wrote "75" on a white bar napkin and placed it on the counter in front of them. Terminello said, "That is fine, we'll take two" (Tr. 22-I-136) and laid $80 on the table. Clark laid dawn a $100 bill. "Bill" took the $100, and $56 from Terminello's $80, leaving $24 in change. 4/ "Bill" then rang up a $6 sale an the register and placed the rest of the money in the right vest pocket of Enid Epstein. She then left the bar and proceeded into the kitchen area. A few minutes later she returned--via the staircase leading from the second floor--folded an unidentified object into a napkin, and handed it to Bill. He, in turn, handed the napkin to Terminello. After finding two small tinfoil packets in the napkin, the officers departed the premises. (Testimony of Terminello, Clark.)

    
    

12. The two small packets contained a white powder. Subsequent Public Safety Department laboratory tests identified the white powder contained in one of the packets as cocaine. 5/

    IV.

    As to Count 4

    
    

13. After his initial drug transaction with barmaid Enid Epstein during the early morning hours of January 24, 1981, (Paragraph 7 through 9, Count 2, above) Officer Mato returned to the Club Alexandre with Beverage Officer Emil Marrero. They arrived shortly before midnight on January 24, 1981, and seated themselves on opposite ends of the downstairs bar. After ordering drinks, Officer Mato called over barmaid Enid Epstein--who was tending bar--placed $70 on the bar and told her he would like to purchase some "white magic", another street name referring to cocaine. She took the money and proceeded to the kitchen area, then returned and handed Mato a folded $5 bill containing a small tinfoil packet. A few minutes later, the beverage officers departed the premises. (Testimony of Mato, Merrero.)

    
    

14. The small tinfoil packet contained white powder which subsequent Public Safety Department laboratory tests identified as cocaine. (P-2.)

    
    

    V

    As to Count 5

    
    

15. At 11:00 p.m., on January 27, 1981, Beverage Officers Marrero and Delmonte entered the Club Alexandre and seated themselves at the downstairs bar. They ordered drinks from barmaid Enid Epstein. Shortly after midnight Merrero folded $70 in a small packet and placed it on the bar; he then asked Epstein if he could buy some "white magic", meaning cocaine. Taking the money, she went to the kitchen area and returned, placing a folded $5 bill in front of Marrero. Inside the folded bill was a small tinfoil packet. The officers then left the premises. (Testimony of Marrero, Delmonte.)

    
    

16. Subsequent Public Safety Department laboratory analysis identified the contents of the tinfoil packet as cocaine. (P-3.)

    
    

    VI.

    As to Count 6

    
    

17. On January 28, 1981, at 12:45 a.m., Officers Clark and Terminello returned to the Club Alexandre in furtherance of their narcotics investigation. Seated at the lower level bar, they ordered drinks from Enid Epstein, the barmaid. Shortly thereafter, Terminello called her over end asked her if there was any chance of their getting some more "toot", another slang ward for cocaine. She replied that she would have to check to "see if any of my people are here." (Tr. 22-I-104.) She then left the bar, walked to the rear kitchen area and returned several minutes later saying, "Yeah, no problem. There is somebody here." Id. Each officer then placed $75 on the bar; she retrieved the money, left for the kitchen area and returned with a folded napkin which contained two small tinfoil packets. (Testimony of Clark, Terminello.)

    
    

18. Subsequent Public Safety Department laboratory analysis identified the contents of one of the packets as cocaine. 6/ (P-5.)

    
    

    VII.

    As to Count 7

    
    

19. On January 29, 1981, at approximately 11:40 p.m. beverage officers, assisted by officers of the Miami Police Department, executed a search warrant on the premises of the Club Alexandre. During the search, Beverage Officer

    Joseph Maggio found a brown leather purse on a shelf in a locked storage room on the second floor. The outside pocket of the purse contained ten small tinfoil packets containing a white powder suspected to be cocaine. A further search of the purse revealed small baggies and six additional tinfoil packets--all containing suspected cocaine. (Testimony of Maggio, McEwan.)

    
    

20. The purse also contained a checkbook and a Florida driver's license issued in the name of Luis A. Vargas. Vargas, the head chef for Club Alexandre, was subsequently located downstairs. After being advised of his rights, Vargas identified the purse as his own.

    
    

21. Of the numerous packets of white powder found within the purse, only one was subjected to Public Safety Department laboratory analysis; the contents of that packet were identified as cocaine. (P-7.)

    
    

    VIII.

    Licensee's Duty to Exercise Reasonable Care end Diligence

    
    

22. Before a beverage license can be suspended or revoked for a violation of law on the licensee's premises, the licensee must be found culpably responsible for the violation through his own negligence, intentional wrongdoing, or lack of diligence. 7/ In the instant case, no intentional wrongdoing by Respondent has been alleged or proved. Rather, the Division contends that the violations of state narcotics laws described above resulted from Respondent's failure to exercise reasonable skill and diligence in managing and supervising its operations. Respondent does not dispute that on seven occasions, as alleged, violations of state narcotics laws occurred on the premises; however, it denys negligence or lack of diligence. It affirmatively contends that it took every reasonable precaution to guard against the illegal sale or use of narcotics on the licensed premises. (Testimony of Cachaldora, Petitioner's Proposed Recommended Order, Respondent's Suggested Findings of Fact.)

    
    

23. Respondent's contention is unavailing; the evidence establishes that Respondent failed to take reasonable precautions to guard against violations of narcotics laws on its premises--that Respondent failed to exercise reasonable care end diligence in managing its operations and supervising its employees. The following facts justify this conclusion:

    
    

    1. The alleged violations of narcotics laws occurred on the premises in a recurring, persistent, and practiced manner. They occurred at least seven times--over a 2 1/2- month period--and involved at least three separate employees of the Respondent.

    2. Despite the licensee's knowledge or suspicion, through its operators and managers, that violations of state narcotics laws occasionally occurred on it premises, the licensee never expressly enunciated--either to its employees or patrons--a policy forbidding the possession, sale, or use of narcotics. Employees were not admonished against involving themselves in such violations; neither were penalties for such violations announced in advance. Neither was information concerning possible narcotics law violations

       or convictions elicited from prospective employees.

    3. Given the nature and size of the Club, the number of its employees end patrons, and management's knowledge, or suspicion, that narcotics violations had occurred on the premises--the licensee took inadequate steps to (1) monitor activities on the premises, and

       (2) detect narcotics violations and prevent their occurrence. It employed off-duty Omni security guards only during times when business activity was greatest. At all other times, it relied on its employees for surveillance and security. The place where narcotics violations were most likely to occur--the bathroom facilities on two

       floors--were monitored by a single valet with minimal security training and who could neither speak nor understand English.

    4. The security efforts by the licensee were directed more to controlling disturbing or offensive behavior by patrons than pretending violations of law from occurring on the premises, or taking forceful action when such violations were detected.

    5. The quality of the licensee's surveillance program is illustrated by an experiment conducted by Beverage Officer Delmonte. On January 14, 1981--while at the Club with Beverage Officer Marrero--he observed several persons in the men's bathroom with running

       eyes and noses. During that same visit, Officer Marrero observed several waiters and a patron in the bathroom "sniffing something through their nostrils." (Tr. 22-I-78.) The Respondent's valet was also present in the bathroom at the time. On Officer Delmonte's next visit to the Club--January 27, 1981--he decided to conduct an experiment because of the suspicious activities observed on January 14, 1981. He went to the bathroom with a dollar bill rolled into a small tube; he placed it to his nostril and pretended to inhale something. The valet came in, observed this behavior, and acted surprised. Delmonte then acted embarrassed, smiled, and placed the dollar back in his pocket. After the valet handed him a kleenex, Delmonte exited the bathroom with the valet following him. At the foyer, the valet spoke with an older lady wearing a dark dress; the lady then engaged in a casual conversation with Delmonte and Enid Epstein--who was tending bar. Nothing further occurred in response to Officer Delmonte's experiment.

       (Testimony of Delmonte, Mendel, McEwen, Maggie, Mato, Clerk, Terminello, Marrero, Guerre, Robertson, Cachaldora, Puig; R-3, R-7.)

       
       

24. Respondent's suggested findings of fact are adopted to the extent they establish: (1) Between November 23, 1980, and January 28, 1981, law enforcement officers made numerous undercover visits to the Club when they did not, or were unable to purchase illicit narcotics on the premises; (2) During undercover visits during the period in question--except for the January 14, 1881, incident in the men's bathroom end the incidents alleged in Counts 1 through 7--the officers did not observe anyone using or selling illicit narcotics or marijuana. Moreover, two off-duty police officers who sometimes socially visited the Club-- and were encouraged to do so by Respondent--did not observe any narcotics violations taking place; (3) Each sale of cocaine, as alleged, was preceded by a law enforcement officer's solicitation to purchase; and (4) Unless observed in the act, it is difficult to ascertain--with certainty--whether a person uses, sells, or is inclined to use or sell narcotics. (Testimony of Stillman, Diaz, Sokolowski, Delmonte, Mandel, McEwen, Maggie, Mato, Clark, Terminello, Marrero, Guerra, Robertson.)

    
    

    IX.

    Appropriate Disciplinary Penalty

    
    

25. No aggravating evidence was offered by the Division to justify permanent license revocation; no intentional wrongdoing by Respondent, or its manager, has been shown. Respondent has no record of prior infractions of the Beverage Law. There is no evidence which indicates that Respondent's operator, Alex Cachaldora, was aware that several of his employees were involved with illicit narcotics. In light of the facts of this case, permanent revocation of Respondent's beverage license is unwarranted; rather, a 90-day suspension is appropriate, less any days during which Respondent's beverage license has been effectively suspended by emergency order of the Division. (Testimony of Cachaldora.)

    
    

26. Both parties have submitted proposed findings of fact for consideration in this proceeding. To the extent such findings have not been adopted or incorporated in this Recommended Order, they are rejected as irrelevant or unnecessary to resolution of the issues presented or unsupported by the evidence.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding. 120.57(1), Fla. Stat. (1979).

    
    

28. During the hearing, Respondent objected on hearsay grounds to the admission of certain testimony by Officers Mato and Serig. (Tr. 22-I-44, 49, 158, 161, 163.) In this proceeding, hearsay--objectionable in a civil action-- may be used only to explain or corroborate other competent evidence and cannot, in itself, support a finding of fact. 120.58(1)(a), Fla. Stat. (1979) Ruling was reserved on Respondent's objections pending submittal of memoranda of law.

    
    

29. The testimony in dispute contains several statements of Respondent's employees which the Division seeks to use against Respondent. Respondent's objections are sustained; the statements are excluded. They constitute hearsay statements, i.e., out-of- court statements by persons who did not testify at hearing and which are offered to prove the truth of the matter asserted. They do not explain or corroborate other competent evidence. Neither do they

    constitute authorized hearsay exceptions which may be admitted despite their hearsay character. 90.802, 90.803, 90.804, Fla. Stat. (1979). To allow the use of such hearsay statements--highly prejudicial on their face--would controvert Section 120.58(1) and deprive this proceeding of fundamental fairness. See, 120.57(1)9., Fla. Stat. (1979).

    
    

30. Section 561.29(1), Florida Statutes (1979), provides in part:

    
    

    1. The (Division of Alcoholic Beverages and Tobacco) 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 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. . .

    1. Maintaining a nuisance on the licensed premises.

    2. Maintaining licensed premises that are unsanitary, or are not approved as sanitary by the county board of health or the Department of Health and Rehabilitative Services, whichever has jurisdiction thereof.

    
    

31. Section 561.01(11), Florida Statutes (1978), defines the term "licensed premises" to mean:

    
    

    . . .not only rooms where alcoholic beverages are stored or sold by the licensee, but also all other rooms in the building which are so closely connected therewith as to admit of free passage from drink parlor to other rooms over which the licensee has some dominion or control. . .

    
    

32. Cocaine is a controlled substance. 893.03(2)(a)4., Fla. Stat. (1979).

    
    

33. Section 893.13(1)(e), Florida Statutes (1979), with limited exceptions, makes actual or constructive possession of a controlled substance a felony of the third degree.

34. Section 893.13(2)(a)5., Florida Statutes (1979), 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.

    
    

35. While an alcoholic beverage licensee is not an insurer that its employees will not violate any state laws while on the premises, it has a "duty to exercise reasonable care and diligence" to see that its business is conducted lawfully and its employees are law abiding. G & B, Inc., v. State, 371 So.2d 138, 139 (Fla. 1st DCA 1979). Persistent or recurring violations on the premises can permit an inference leading to a conclusion that such violations were either fostered, condoned, or negligently overlooked by the licensee--thus justifying license discipline. Pauline v. Lee, 147 So.2d 359, 364 (Fla. 2d DCA 1962). A standard of simple negligence is applied to the revocation of a beverage license.

    
    

    As a result, if the evidence supported the conclusion that the licensee failed to exercise ordinary care in the maintenance of the licensed premises or the supervision of his employees, he could be found guilty of the negligence and his license revoked. Bach v.

    State Board of Dentistry, 378 So.2d 34, 36 (Fla. 1st DCA 1979).

    
    

36. The evidence of record establishes the violations of Section 561.29(1)(a), supra, as alleged in Counts 1 through 7, and Count 8, as amended at mid-proceeding. The evidence further establishes that the violations of state narcotics laws occurred as a result of the failure of the licensee, through its president and manager, to exercise reasonable care and diligence in supervising its employees and monitoring activities on its premises.

    
    

37. The evidence does not establish the allegation in Count 9--that Respondent violated Section 561.29(1)(d), which concerns maintaining unsanitary premises. While the context of Count 9 indicates that the Division may have intended to charge Respondent with a violation of Section 561.29(1)(c), supra, it did not do so. Section 561.29 is a penal section, and must be strictly construed. See, Bach v. State Board of Dentistry, supra at 36. Its violation cannot rest on loose interpretations of law. See, Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). As the court observed in Bowling at 172:

    
    

    In other words, in a world ensnarled by false assumptions and hasty judgements, let the prosecutor's proof be as serious-minded as the intended penalty is serious.

    Id.

38. In light of the nature of the charges and evidence presented, including the failure to show intentional wrongdoing or prior violations by licensee, a 90-day suspension of Respondent's beverage license is warranted. Revocation is a serious and drastic penalty, even for a flagrant case, Taylor v. State Beverage Department, 194 So.2d 321, 329 (Fla. 2d DCA 1967); the facts of this case do not warrant its imposition.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, It is RECOMMENDED:

That the Division enter a final order suspending Respondent's beverage license No. 23-3953, Series No. 4-COP-SRX, for 90 days; provided, however, to the extent Respondent's license may have been effectively suspended by prior emergency order of the Division, the period of such emergency suspension should be subtracted from the 90-day period.

DONE AND RECOMMENDED this 10th day of June, 1981, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1981.

ENDNOTES

1/ Petitioner's and Respondent's Exhibits will be referred to as "P- " and "R- ", respectively.

2/ The transcript of hearing will be referred to as Tr. (date of hearing, volume, and page).

3/ He was accompanied by Officer Agras, an officer working out of the narcotics section of the Miami Police Department.

4/ The additional $6 charge was due to the officer's bar tab.

5/ No laboratory analysis was conducted on the other tinfoil packet.

6/ The contents of only one of the packets was subjected to laboratory analysis.

7/ Pauline v. Lee, 147 So.d 359, 364 (Fla. 2d DCA 1962) Woodbury v. State, 219

So.2d 47 (Fla. 1st DCA 1969).

COPIES FURNISHED:

Dennis E. LaRosa, Esquire 725 South Bronough Street Tallahassee, Florida 32301

Lane L. Abraham, Esquire and

Seymour Chadroff, Esquire Suite 800

200 Southeast First Street Miami, Florida 33131

Manuel Diner, Esquire Suite 1746, Biscayne Tower

Two South Biscayne Boulevard Miami, Florida 33131

Docket for Case No: 81-000498

Orders for Case No: 81-000498