DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF ALCOHOLIC ) BEVERAGES AND TOBACCO, )
vs. ) CASE NO. 81-1432
) SONNY'S ITALIAN RESTAURANT AND ) PIZZERIA, INC., d/b/a SONNY'S ) ITALIAN RESTAURANT, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 27 May 1981, in Miami, Florida.
For Petitioner: James N. Watson, Jr., Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
By notice to show cause dated 18 May 1981, the Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to revoke, suspend or otherwise discipline license No. 23-2197, Series 4-COP, issued to Sonny's Italian Restaurant and Pizzeria, Inc., Respondent. As grounds therefor it is alleged that employees of Respondent sold controlled substances on the premises, that the premises were resorted to by patrons using and selling controlled substances, that employees and managers of Respondent allowed or overlooked the use of the premises for solicitation by prostitutes, and thereby maintained a public nuisance on the premises.
By Emergency Order of Suspension entered 18 May 1981, the Director, Division of Alcoholic Beverages and Tobacco, suspended the license of Respondent pending a hearing to determine if the suspension should be lifted or the license revoked. This Emergency Order of Suspension was stayed by the Third District Court of Appeal pending the formal hearing on the allegations.
At the hearing four witnesses were called by Petitioner, two witnesses were called by Respondent and eight exhibits were admitted into evidence.
Proposed Findings of Fact submitted by the parties and not included below were not supported by competent evidence or were deemed immaterial to the results reached.
By Motion to Disqualify filed 5 June 1981, Respondent seeks to disqualify Charles Nuzum, Director of the Division of Alcoholic Beverages and Tobacco, from further participation in this case. Whether this Motion is addressed to the Hearing Officer or Mr. Nuzum is not clear. However, ruling on this Motion is beyond the jurisdiction of the Hearing Officer and it is forwarded with the record of proceedings for such action as may be appropriate.
Sonny's Italian Restaurant and Pizzeria, Inc., d/b/a Sonny's Italian Restaurant, at 247 23rd Street, Miami Beach, Florida, Respondent or Sonny's, holds Beverage License No. 23-2197 Series 4-COP.
Acting upon the request of, and in concert with, the Miami Peach Police Department, the Division of Alcoholic Beverages and Tobacco instituted an investigation of Sonny's during the period of April 25, 1981 through May 13, 1981. Much of the investigation was conducted by beverage officers performing undercover surveillance.
On April 25, 1981, while operating undercover, Beverage Officer Luis J. Terminello, while in the lounge area at Sonny's, was offered oral sex by a patron known as "Wallflower" for $45. On April 26 Terminello engaged in a conversation in Sonny's lounge with a black female patron known as "Sherrill" who offered to commit oral sex for $25. On April 29 he again was approached in Sonny's by "Sherrill" who offered oral sex for $25. Later that same evening he engaged in conversation with a female patron known as "Lisa," who offered oral sex for $40. On the same evening, while engaged in conversation with a patron known as "Annette," he was offered oral sex for $50.
On April 30, 1981, Terminello engaged in conversation with "Sherrill" in Sonny's lounge and was offered oral sex for $30. On May 2 Terminello engaged a patron known as "Maxine" in conversation and was offered oral sex for $20. He later learned Maxine is a male. On May 3, 1981 in Sonny's lounge Terminello engaged in conversation with Annette who offered him sexual intercourse for $50. All these conversations took place at the bar or in the vicinity thereof while the lounge and bar area were crowded with customers. These acts of prostitution were offered to be committed in Terminello's automobile or in the restroom at Sonny's.
While Terminello was in Sonny's lounge during the investigation period he observed the females who had solicited him talking with other male patrons. He also saw them leave the lounge with male patrons and return some 45 minutes later.
On the April 25 visit Terminello observed the barmaid, Susan, snorting a white power from a spoon, and, on at least three other occasions, he observed patrons at the dark part of the bar snorting a white powder. At other times he noticed what was recognized by him as marijuana smoke in the bar, lounge and restrooms and saw patrons smoking what appeared to him to be marijuana cigarettes.
During the period of the investigation Terminello became known in Sonny's as a purchaser of controlled substances. On April 30 Robert Jones, a beverage officer, and Terminello purchased a substance they thought to be cocaine from a patron known as "Ice Cream." The transaction occurred in the men's room in the restaurant side of Sonny's and, following the transaction, "Ice Cream" lit a marijuana cigarette and passed it around to Terminello and Jones. Subsequent lab reports confirmed the cigarette to be marijuana but the substance bought was not cocaine.
On 2 Hay, while in the bar area at Sonny's, Terminello was offered Quaaludes and he purchased six of them from a patron known as Don. On May 3, while engaged in conversation with Annette at the bar, Terminello said he was interested in getting cocaine. Annette told him she could get some from Susan, the barmaid, for $70 a gram. After he agreed on the price Annette went behind the bar, talked quietly to Susan, and both girls left the bar and went into the ladies' restroom. Terminello followed them to the door of the ladies' room and caught a glimpse of a package being handed by Susan to Annette. Terminello returned to the bar, where he was shortly joined by Annette, who delivered one gram of cocaine in exchange for $70. About an hour later, Terminello returned to Sonny's and arranged for another purchase of cocaine from Susan by Annette. After this transaction was completed Terminello, while sitting at the bar, called Susan over to order a beer and say "Thanks." She replied that she wasn't "holding" all the time but when she was he was welcome.
Later the same evening in Sonny's, Terminello made two purchases of what he thought was cocaine from patrons "Charles" and "Ice Cream." Subsequent lab analysis of these purchases disclosed they were not cocaine.
During the same investigative period Beverage Officer Carmen Gonzalez and Miami Beach Police Officer Joan Donnelly visited Sonny's on several occasions as undercover agents. On April 27, 1981, while seated at the bar Gonzalez and Donnelly negotiated a purchase of marijuana from bartender Gerald (Jerry) Hamburger. He told them he could provide marijuana at $30 an ounce. When they agreed he left the bar and walked toward the restaurant from where he shortly returned saying he would have to send out for it. Thirty to forty-five minutes later Jerry delivered the marijuana at the agreed price.
Gonzalez and Donnelly returned to Sonny's on April 30 and told Jerry they would like to purchase marijuana and he introduced them to the pizza delivery man, "Bobby." When Bobby asked if they wanted anything, Gonzalez told him she was interested in purchasing marijuana. Bobby replied that he would have to go out and get it. He returned some thirty minutes later and motioned for the officers to accompany him to the lounge in the ladies' restroom. There he removed a packet of marijuana from his sock and gave it to Gonzalez who paid him $30.
On May 1 Gonzalez and Donnelly returned to Sonny's. Jerry wasn't working so they asked the bartender, "Ray", where they could find Bobby. When told he was on the restaurant side of Sonny's, they proceeded to the restaurant area, where they were seen and greeted by Bobby. When Gonzalez asked if they could get marijuana, Bobby replied yes but he would have to go out for it. Some thirty minutes later Bobby took Gonzalez and Donnelly into the ladies' restroom in the lounge area where he delivered one ounce of marijuana and Gonzalez paid him $30.
Gonzalez and Donnelly also became acquainted with two band members working in Sonny's called Waco and Termine. On May 3, Termine told them he could got good coke for them; and, when they agreed, he walked to the back of the restaurant and came out with another man. The other man couldn't provide a full gram but could provide three "dimes" for $10 each. He removed these foil- wrapped packets of cocaine from his pocket and handed them to Gonzalez, who paid him $30.
On April 30, Gonzalez and Donnelly purchased a white powder, believed to be cocaine, from "Ice Cream." This transaction took place in the ladies' restroom in the lounge; and, following the sale, "Ice Cream" lit a marijuana cigarette and passed it around. While they were in the restroom "Diane" knocked on the door, came in and lit a second marijuana cigarette. The substance purchased from "Ice Cream," when tested, was found not to be cocaine.
During the investigation, several patrons at Sonny's approached Gonzalez and Donnelly to sell them controlled substances.
Joseph Chierico holds all of the stock in Sonny's. His son, Robert, serves as manager. According to their testimony, both are present at the establishment nearly every evening. Sonny's is open from 4:30 p.m. until 5:00 a.m., with deliveries of food on Miami Beach until 3:30 a.m. Each spends most of his time in the restaurant area but Robert, as manager, walks through the lounge and bar area frequently. Robert spends less than one-half of his time in the lounge side. Each testified he never saw any drugs brought into the licensed premises and when a customer complains about solicitation by a prostitute he tells the prostitute to leave. Richard Chierico testified that on many occasions he escorted patrons off the restaurant premises for use or sale of narcotics. If they hear about someone attempting to sell narcotics on the premises, they tell them to leave and not come back. Both Chiericos testified that they did not know Wallflower, Sherrill, Annette or Maxine; however, they did know a transsexual named Lisa who was not allowed on the premises because of suspicion of solicitation. Joseph Chierico testified he hired a band leader on a contract basis for a specified number of players and had nothing to do with the individual members of the band.
Exhibits 5 and 6 were admitted into evidence as business records purporting to show the employees of Sonny' a each week. No hours worked are shown on these exhibits, and Joseph Chierico, through whom the exhibits were offered, could not explain them. These records are maintained by the bookkeeper who did not testify. He prepares the payroll from which Chierico writes the employee's checks on Sunday nights. These exhibits indicate that Jerry was on duty only one day during the week ending 2 May 1981; but, without a witness to verify the accuracy of this record, they are insufficient to rebut the testimony of Gonzalez and Donnelly that Jerry was on duty as bartender on at least two nights when marijuana was purchased.
Joseph Chierico became the sole shareholder of Sonny's on 30 October 1980 and executed the Personal Questionnaire (Form UBR 710-L), (Exhibit 4), on
31 October. However, the Certificate of Incumbency and Declaration of Stock Ownership (Form DBR 759-L), (Exhibit 1), was not filed wish the petitioner until April 9, 1981.
Joseph Chierico testified that he has been the operator of Sonny's off and on for the past 25 years; that if he suspects any employees of using or selling drugs he gets rid of the suspected employee; that he sees many patrons using drugs and when he does, he tells them to leave; and that he vaguely
recalls an incident involving the license several years ago but nothing came out of it. On rebuttal, Exhibits 7 and 8 were introduced into evidence. In Exhibit 7, the licensee was charged with changing corporate officers in 1969 without notifying the Beverage Department and with failing to disclose that Joseph Chierico held an interest in the business. Exhibit 8 is a STIPULATION executed June 21, 1971 in which Barbara Chierico, President of licensee and estranged wife of Joseph Chierico, agreed to pay a $500 fine and submit a management contract to the Beverage Department for approval.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, these proceedings.
Section 561.29, Florida Statutes, contains various grounds for which a license issued under the Beverage Law may be revoked or suspended. These include:
1(a) Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state or of the United States. . .
(c) Maintaining a nuisance on the licensed premises.
(e) Violation by the licensee or, if a corporation, by any officers thereof, of any rule or rules promulgated by the division. . .
Chapter 893, Florida Statutes, makes it unlawful to sell or deliver controlled substances, which include marijuana and cocaine. By selling cocaine to Terminello, the barmaid, Susan, violated this provision. The fact that the purchase was through an intermediary does not change this finding. Cf. Elias
v. State, 301 So.2d 111 (Fla. 2d DCA 1974.) Similarly, when Jerry, the bartender, and Bobby, the delivery-man, sold marijuana to Gonzalez this provision was violated. These sales of controlled substances by employees of licensee subject Respondent's license to revocation.
The evidence respecting the purchase of cocaine from band member Waco and/or Termine was conflicting. One of Petitioner's witnesses testified that Waco produced the man who sold them the three "dimes" of coke. The other witness who participated in the purchase testified the purchase was made from Waco. In Findings of Fact No. 13 above, it was found the purchase was made from the man produced by Waco. Accordingly, Respondent is not guilty of the charge involving this one sale by Waco. Respondent Is guilty of the other allegations of Count 1.
With respect to Counts 2 and 3, Section 893.13(2)(a)(5), Florida Statutes, provides:
It is 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. . .
Section 823.10, Florida Statutes, provides that any such place as above- described constitutes a public nuisance.
Petitioner's witnesses observed patrons of Sonny's snorting a white powder and smoking pot in the bar, lounge and restrooms. Numerous purchases of controlled substances and of material sold as a controlled substance were made during the period 25 April through 13 May 1981. Frequently, several purchases were made during one evening from several patrons of Sonny's. Once Terminello became known as a purchaser, he was found by numerous sellers in the crowded bar and lounge. Such widespread availability of controlled substances in Sonny's leads to the conclusion that this bar and lounge were resorted to by persons using controlled substances. Accordingly, Respondent Is guilty of Count 2.
Count 3 alleges that by maintaining a place visited by persons for the purpose of unlawfully using controlled substances Respondent maintained a public nuisance. The finding of guilty of Count 2 and the statutory definition of public nuisance carries with it a finding of guilty of Count 3. Orlando Sports Stadium, Inc. v. State, 262 So.2d 881 (Fla. 1972).
With respect to Count 4, the evidence was unrebutted that Terminello was solicited by numerous patrons in Sonny's to commit sexual acts for compensation. The evidence was also unrebutted that these acts of soliciting for prostitution were open and notorious, that numerous male patrons were solicited, and that as many as three prostitutes would frequent Sonny's at one time. These were not isolated events. The prostitutes, although not employees of the licensee, were frequent, if not constant, patrons of Sonny's. The testimony of the Chiericos that they were on the premises nightly supervising the restaurant, and to a lesser extent the bar and lounge, was not rebutted. Since Joseph Chierico has been in this business for at least 25 years, it is inconceivable that he could be present and not realize that the premises were being used as a hangout for prostitutes, users and pushers. While Richard Chierico has much less experience than his father in these matters, he testified that he has worked in the business for approximately three years. His testimony that he was on the premises and walked around the bar and lounge area several times every night yet observed no soliciting by prostitutes or sale or use of controlled substances is simply not credible. Even if this testimony could be believed and neither was aware of the prostitution and controlled substances use and sale that was being carried out on the premises, they would be culpably negligent not to see what was openly taking place on the premises. G & B of Jacksonville, Inc. v. Florida Department of Business Regulation, Division of Beverage, 366 So.2d 877 (Fla. 1st DCA 1979). These were not isolated incidents of which management might be unaware, but constituted a pattern which was consistently followed until management became aware of the surveillance and pending raid.
Count 4 alleges Respondent, by allowing soliciting for prostitution on the premises, maintained a public nuisance. Section 823.05, Florida Statutes, specifically declares any house or place of prostitution a nuisance. Although no evidence was presented that the prostitutes were employees of Respondent, one or more offered to commit prostitution on the premises. This Count is duplicitous of Count 3 in that both charge Respondent with maintaining a public nuisance on the licensed premises. The evidence clearly supports a finding that Respondent is guilty of Count 4 as alleged; however, in view of Count 3 also
alleging the same offense, these two counts will be merged and considered as only one offense when recommending an appropriate penalty.
Count 5 alleges that Respondent failed to timely submit the change in ownership of the licensed premises required by Rule 7A-2.07, Florida Administrative Code, which provides in pertinent part:
(2) If any corporation holding a beverage license shall change corporate officers, such corporation shall within ten days of such change submit a certified copy of the minutes of the stockholders' meeting at which the change in officers was effected to the district office of the district of the Division of Beverage wherein the license(s) held by such corporation is located.
The evidence is clear that Joseph Chierico took over the ownership of Sonny's on October 39, 1980 and did not submit the required information until 9 April 1981, well beyond the ten days allowed by the rule. In view of Respondent's submission of the Personal Questionnaire immediately following the change in stock ownership, the violation of the rule is a technical violation and is disregarded in recommending an appropriate penalty.
From the foregoing it is concluded that employees of Sonny's sold controlled substances on the licensed premises as alleged; that the licensed premises were resorted to by those using and selling controlled substances; that the premises were used by prostitutes to solicit business from patrons; that Respondent was in technical violation of Rule 7A-2.07, Florida Administrative Code, as alleged; that the licensed premises constituted a public nuisance by reason of the use and sale of controlled substances on the premises and of the soliciting on the premises by prostitutes; and that Respondent knew, or by the exercise of ordinary diligence would have known, of the illegal activities involving controlled substances and prostitution that occurred on the premises. With the actual presence of the owner and manager on the premises each day and night Sonny's was opened, it would be virtually impossible for these illegal activities to occur without the knowledge and/or active encouragement by the management of licensee. It is, therefore,
RECOMMENDED that license No. 23-2197, Series 4-COP, issued to Sonny's Italian Restaurant and Pizzeria, Inc. be revoked.
Entered this 19th day of June, 1981.
K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1981.
James N. Watson, Jr., Esquire Staff Attorney
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
200 South East 1st Street, No. 800 Miami, Florida 33131
