STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

Respondent. )

RECOMMENDED ORDER

designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this

APPEARANCES

725 South Bronough Street For Respondent: Lane Abraham, Esquire, and

Suite 800 Miami,

ISSUE

abetting bookmaking on its licensed premises. If so, what disciplinary action

BACKGROUND

("Division") filed a notice to show cause against respondent Rickey's Restaurant charged Rickey's with unlawfully maintaining a gambling house and aiding and

Rickey's requested a hearing on the charges; thereafter, the Division

Hearing was initially set for July 21, 1981. ON Rickey's motion, and November 17, 1981.

Terminello, Jean Mignolet, J. Favitta, and Emil Marrero; it also called Kenneth 1/ Nos. 1 through 3 were offered and received into evidence.

Greene, and James Renzo; it also called its owner, William J. Mitchell, and

The parties were allowed to file proposed findings of fact and conclusions submittalof the recommended order would begin on the date of those filings. No

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

I.

1. Rickey's owns and operates a restaurant and bar at 4645 Hollywood Division beverage license No. 16-00527, series 4-COP. Food sales account for 55 in 1980. It serves a variety of other items, including seafood, soups, salads

   
   

2. Rickey's is a corporation which was purchased in April, 1974, by

at Rickey's; he manages the inventory and purchases the liquor and food. His approximately 18 persons. (Testimony of Mitchell.)

Hollywood location, it owns similar establishments in Gainesville and Tampa. In its food and specialty items, it continues to sell large volumes of beer and Mitchell.)

Rickey's (1981), and Division rules. During the seven years of Mitchell's ownership, it 1975, the Division claimed that an employee permitted gambling at a pool table. from the premises. (Testimony of Mitchell; P-3)

II.

5. During October and

weeks--James Rickey's daytime bartender, operated a football "pool" on

service to his steady customers, a form of harmless entertainment for football 2/ He did not realize that it was illegal. Neither he nor Rickey's made

Mitchell, Terminello, Mignolet.)

plastic-coated graph, divided by lines into 100 squares. Patrons could place $5 writing their names in the appropriate open box. After the game was played,

the end of his day shift, he would take the "pool" graph and cash home with him, behind the bar below the cash register. (Testimony of Renzo, Terminello.)

Terminello entered the licensed premises and placed $5 bets on the football

to Renzo. The transaction took place in an open manner. Renzo did not attempt Mingolet.)

Football Parlay Cards

December, 1980, Kenneth J. Carter, a customer of licensed premises. The owners and employees of Rickey's neither participated in Mitchell,

9. The parlay cards were pre-printed, serial-numbered cards showing placed bets on the games by indicating their choices on the tickets; they would on their face. At the bottom of the card is printed the following:

games. Not to be used or sold for gambling (Testimony of terminello, Carter; P-2, P-2A).

cards on a weekly basis to a patron of Rickey's known as "Geancola." Geancola completed cards (absent the portion kept as receipts) and cash to Carter. week, after the football games were played, Carter would give sufficient money

1. On October 15, 1980, Beverage Officer Terminello approached Carter on the licensed premises and asked him if he could distribute parlay cards on a commission basis. Carter agreed. During the next two months, Officer terminello would regularly receive parlay cards from Carter on Rickey's premises, and later turn in the completed cards to Carter with the requisite cash. These transactions between Terminello and Carter occurred at Rickey's on October 20, 24, and 27, 1980; November 3, 10, 14, 17, and 24, 1980; and December

   5 and 9, 1980. (Testimony of Terminello.)

   
   

2. On two occasions, employees of Rickey's unknowingly assisted in exchanging parlay cards and cash between Terminello and Carter. On October 24, 1980, Terminello handed 19 parlay cards and $29 to Jack Greene, the night bartender, asking that they be given to Carter when he came in. Greene accommodated him. However, the money and cards were wrapped together; they were not identified to Greene, and Greene did not know they were parlay cards or illicit gambling materials. 3/ On November 10, 1980, Michael Teitler, another bartender at Rickey's, handed Terminello a package of 34 parlay cards which he had earlier received from Carter. Teitler did not know what was in the package; 3/ he simply handed it to Terminello as a favor to Carter. Neither bartender examined the materials; it was not unusual for patrons to leave materials with bartenders for delivery to other patrons. Neither Greene nor Teitler knowingly participated in or aided in the operation of the illicit parlay card scheme. (Testimony of Terminelo, Teitler, Greene.)

   
   

3. When Renzo heard that Carter may have been involved with gambling activities in another bar, he sternly warned Carter to not engage in gambling activities on Rickey's premises. Carter subsequently complied with Renzo's order. (Testimony of Renzo, Carter.)

   
   

   IV.

   
   

   Owner's "No Gambling" Policy

   
   

4. Since the 1975 incident of alleged gambling at a pool table, William Mitchell--owner of Rickey's--had enforced a strict "no gambling" policy. He informed all new employees that gambling on the premises was forbidden. Renzo was a trusted employee of many years; Mitchell had no reason to think that Renzo would betray that trust or operate a gambling activity on the premises. The fact that Renzo sternly warned Carter that no gambling would be permitted on the premises tends to justify the confidence which Mitchell placed in Renzo. Renzo did not knowingly engage in illicit gambling; he simply failed to understand that the football "pool," which he considered harmless, constituted gambling prohibited by Mitchell's policy and Florida law. (Testimony of Mitchell, Renzo.)

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Fla. Stat. (1981).

6. The Division is authorized to revoke or otherwise discipline a license

   
   

   premises--violated, or permitted another to violate, any of the laws of Florida. Section 561.29(1)(a), Fla. Stat. (1981). License revocation statutes are penal

   
   

   Insurance, 394 So.2d 165 (Fla. 1st DCA 1981).

   
   

7. The burden rests upon the prosecuting agency to prove its charges with penalty does on the scale of penalties." Id. at 172. 4/

8. In Count I of its notice to show cause, the Division contends that

   
   

   849.01, Florida Statutes (1981), by keeping a gambling house. An essential element of this criminal offense is that "by the owner's knowledge and consent

   
   

   played . . . [on the premise]." Mart v. State, 350 so.2d 1123, 1124 (Fla. 3rd DCA 1977), cert. den. 359 So.2d 1220 (Fla. 1978). The statute's primary purpose

   
   

   house or room designed for people to assemble and gamble therein." Id. at 1124.

   In the instant case, the evidence is insufficient to establish that the

   
   

   football pool or parlay cards) on the licensed premises. To the contrary, the evidence establishes that the licensed premises was not designed to accommodate

   
   

   owners received no profit from illicit gambling on the premises; such activities placed their business in jeopardy. It is concluded that Count I must be

   
   

   (1981).

   
   

9. Count II of the Division's notice charges that Rickey's aided and

Statutes. 5/ The two instances of Teitler and Greene storing or delivering football parlay cards are specifically cited.

Teitler ad Greene knowingly participated in, or aided and abetted the parlay card gambling activities

conclusion that the licensee is culpably responsible for such isolated violations by its employees. See, Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA

resulted from the licensee's negligence, intentional wrongdoing, or lack of diligence.

employees. See, Woodbury v. State Beverage Department, 219 So.2d 47 (Fla. 1st DCA 1969). While persistent and recurring violations may support a conclusion

at 364, G & B of Jacksonville, Inc. v. Division of Beverage, 371 So.2d 137 (Fla. 1st DCA 1979), no such repetitive violations occurred here. Count II should

1. Count III charges that Rickey's, through Renzo and his football "pool," engaged in bookmaking in violation of Section 849.25(2), Florida

   
   

   "bookmaking" as defined by Section 489.25(1), Florida Statutes (1981). 6/ However, the evidence does not establish that the licensee was culpably

   
   

   Rickey's had no knowledge of the football "pool" operation. Given the trust

   which they reasonably placed in Renzo, and the limited time during which the "pool" operated, it cannot be concluded that they negligently overlooked his violations. G & B of Jacksonville, supra. Count III should be dismissed.

   
   

2. The parties' proposed findings of fact which are incorporated in this recommended order are adopted; otherwise they are rejected as unsupported by the evidence or unnecessary to resolution of the issues presented.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the charges against Rickey's Restaurant and Bar, Inc., be DISMISSED.

DONE AND RECOMMENDED this 5th day of February, 1982, 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

ENDNOTES

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

2/ Many of Rickey's customers are avid football fans. During the season, football is a favorite topic of conversation. The bar premises also has a 7- foot TV screen for sports events.

3/ As already mentioned, the cards were innocuous on their face. A person seeing the cards, could not be expected to conclude that they are part of an illicit gambling activity.

4/ This "substantially of evidence" standard emanates from the nature and consequences of the proceeding. See, Harnett v. Department of Insurance, So.2d (Fla. 1st DCA, Case No. PP-224, Opinion filed November 18, 1981.)

5/ (2) Any person who engaged in bookmaking shall be guilt of a felony of the third degree, punishable as provided in s. 775.082, 775.083, or s. 775.084 . . .

. Section 849.25(2), Fla. Stat. (1981).

6/ Section 849.25(1) defines bookmaking as "the act of taking or receiving any bet or wager "

COPIES FURNISHED:

James N. Watson, Jr., Esquire Charles A. Nuzum, Director Department of Business Division of Alcoholic Beverages Regulation and Tobacco

725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301

Lane Abraham, Esquire, and Sy Chadroff, Esquire

Suite 800

200 Southeast First Street Miami, Florida 33131

Richard A. Boyd Division of Beverage Post Office Box 8276

Lauderhill, Florida 33310

Docket for Case No: 81-001718

Orders for Case No: 81-001718