STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS )
REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 84-2052
) RIVIERA RESORT HOTEL ASSOCIATES, ) LTD., d/b/a RIVIERA RESORT MOTEL, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on June 22 and 23, 1984, in Lauderhill, Florida.
APPEARANCES
For Petitioner: Thomas L. Barnhart, Staff Attorney
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Henry Latimer, Esquire
Fine, Jacobson, Block, England, Klein Colan and Simon, P.A.
2401 Douglas Road
Post Office Box 140800 Miami, Florida 33134
Steven Reininger, Esquire and William Weber, Esquire
777 Brickell Avenue, Suite 1000
Miami, Florida 33131 ISSUES PRESENTED AND BACKGROUND
The issue presented herein concerns whether or not the Respondent's beverage license should be suspended, revoked, or otherwise disciplined based on multiple sales of controlled substances by employees and patrons on the licensed premises as set forth hereinafter in detail.
At the formal hearing, the Division of Alcoholic Beverages and Tobacco (herein sometimes called the Division or DABT) called as witnesses Michael D'Ambrosia, Beverly Jenkins, Patricia Phillips, Frank Oliva, Tom Wheeler, Sergeant Pat Roberts, and Randy Hilliard. The Respondent called as witnesses, Lou Rappaport, William Heinklein, Walter Patskanick, Elvis Reyes, Bob Skirde,
and Dr. Robert Baer. Petitioner offered eighteen exhibits, all of which were received except Exhibits 15, 17, and 18. Respondent offered seventeen exhibits and all were admitted into evidence. 1/
The Riviera Resort Motel is located on Highway A1A in Hallandale, Broward County, Florida. In addition to approximately 165 guest rooms, the facility contains an indoor lounge, a patio bar, and a coffee shop. The liquor license to operate the lounge and patio bar was transferred to the present owners in January of 1984. Since that time liquor has been sold on the premises up until the time the license was suspended by the Division on June 8, 1984.
The hotel facility was purchased by the present out-of-state owners in early 1983. From the date of purchase until November of 1983, it was managed by a contract on-site management company. In November, the present general manager, Robert Skirde, was hired. Since his hiring, considerable improvements have been made involving decorations, renovations, roofing, and landscaping.
Approximately $156,000 has been spent in upgrading the motel facility. Occupancy of the facility has increased and premium guests are now patronizing Riviera, including a considerable segment of the European tourist market.
Upon Skirde becoming general manager, a former associate, Arturo ("Chi Che") Muniz, was brought aboard to manage the coffee shop, lounge, and patio bar. Consistent with the owners' overall plan to upgrade the facility, substantial improvements were made in these areas and more particularly in the coffee shop.
Responsibilities of Chi Che included hiring employees to work the lounge, coffee shop, and patio bar. Generally, Chi Che is on the premises from 7:00
until 7:00 or 8:00 seven days per week.
Robert Skirde is responsible for the total management at the facility.
Generally, he works six and one-half days per week from 9:00 a.m. until 6:00 or 7:00 p.m., six days a week, plus one-half day (Sunday).
When the present owners purchased the facility, the facility was in a state of deterioration and was unable to attract the type guests that it is presently attracting, i.e., French- Canadian, German, and guests from the United Kingdom. Presently, the occupancy at the facility has surpassed the occupancy for all of calendar year 1983.
Upon taking over the management of the facility, General Manager Skirde retained the services of the Hallandale Police Department to rid the place of derelicts and others who were lounging around the facility. The police department was paid a sum of $588 for its services in that regard. (Respondent's Exhibit 13)
Pursuant to a NOTICE TO SHOW CAUSE and an accompanying RIGHT TO HEARING dated June 7, 1984, Respondent, Riviera Resort Motel, was advised by Howard Rasmussen, Director of the Division of Alcoholic Beverages and Tobacco, that he had been presented evidence which, if true, is good and sufficient cause, pursuant to Chapter 561, Florida Statutes, to suspend or revoke or impose civil penalty against beverage license No. 16-00615, Series 4- COP, for any one of the following allegations:
On or about May 8, 1984, you, Riviera Resort Hotel Associates, Ltd., d/b/a Riviera Resort Motel, licensed under the Beverage
Laws, your servant, agent, or employee, to wit: Tommy Brownyard, did violate F.S.
561.29(1)(a) to wit: did sell or deliver cocaine to Beverage Officer D'Ambrosia on your licensed premises in violation of F.S. 893.13.
On or about May 10, 1984, you, Riviera Resort Hotel Associates, Ltd., d/b/a Riviera Resort Motel, licensed under the Beverage Laws, your servant, agent, or employee, to wit: Tommy Brownyard, did violate F.S. 561.29(1)(a) to wit: did sell or deliver cocaine to Beverage Officer D'Ambrosia on your licensed premises in violation of F.S. 893.13.
On or about June 2, 1984, you, Riviera Resort Hotel Associates, Ltd., d/b/a Riviera Resort Motel, licensed under the Beverage Laws, your servant, agent, or employee, to wit: Bill, did violate F.S. 551.29(1)(a) to wit: did sell or deliver cocaine to Beverage Officer Jenkins on your licensed premises in violation of F.S. 893.13.
You, Riviera Resort Hotel Associates, Ltd., d/b/a Riviera Resort Motel, licensed under the Beverage Laws, between the dates of May 8, 1984, and the date of service of this Notice to Show Cause, have maintained a public nuisance on your licensed premises, to wit: a place or building which is visited by persons for the purpose of unlawfully using, keeping, selling and/or delivering controlled substances in violation of Chapter 893, Florida Statutes, such being a violation of Florida Statutes 561.29(1)(a), 561.29(1)(c), 823.01, and 823.10.
You, Riviera Resort Hotel Associates, Ltd., Riviera Resort Motel, licensed under the Beverage Laws, between the dates of May 8, 1984, and the date of service of this Notice to Show Cause, have maintained a licensed premise as a place which is used for keeping or selling controlled substances in violation of Florida Statutes 893.13(2)(a)5. and 551.29(1)(a).
You, Riviera Resort Motel Associates, Ltd., d/b/a Riviera Resort Motel, licensed under the Beverage Laws, your servant, agent, or employee, to wit: Janette, did violate
F.S. 561.29(1)(a) to wit: did allow violations of the law of this State to occur on the licensed premises by allowing the sale of cocaine on May 14, 1934 from Tommy Brownyard to Officer D'Ambrosia and permitting a sale of cocaine on June 2, 1994, from Bill to Officer Jenkins.
FINDINGS OF FACT
Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, post- hearing memoranda and briefs, and the entire record compiled herein, thereby make the following relevant factual findings.
At all times material to the allegations and charges in this proceeding, Respondent, Riviera Resort Hotel Associates, Ltd., was the holder of a valid alcoholic beverage license No. 16-615-S, Series 4-COP, located at 2080 South Ocean Drive, Hallandale, Broward County, Florida.
On May 8, 1984, at about 9:30 p.m., Officer D'Ambrosia entered the licensed premises in an undercover capacity with a confidential source (CI). Based on a telephone complaint, Officer D'Ambrosia was requested by his supervisors to conduct an investigation to determine if the complaint was meritorious. The main lounge in the licensed premises has a front and back entrance. The front entrance is through the main lobby and the back door leads to a parking lot.
Upon entering the premises, Officer D'Ambrosia and CI approached the main bar. Sergeant Pat Roberts was at the main bar area as a backup officer. There were approximately four other patrons at the bar. Officer D'Ambrosia and CI made contact with the on-duty bartender, Tommy Brownyard. After Brownyard served them drinks and the three of them engaged in general conversation, CI asked Brownyard if he had the "stuff" and if the price of $80.00 was still the same. Brownyard affirmed, stating that it would be in three bags, a one-gram and two half gram bags. CI then turned to Officer D'Ambrosia and stated the price of two grams would be $160.00. Officer D'Ambrosia counted out eight
$20.00 bills and laid them on top of the bar counter. Brownyard left the bar area and entered the men's bathroom. After two or three minutes, Brownyard left the restroom, walked back to the bar and approached Officer D'Ambrosia and CI. Brownyard placed what looked like a pack of Marlboro cigarettes on top of the counter. Officer D'Ambrosia spread out the eight $20.00 bills on top of the counter in a manner that Brownyard could see it and Brownyard picked up the money while facing Officer D'Ambrosia and counted it behind the bar. Brownyard placed the currency in his pants pocket. Officer D'Ambrosia picked up the Marlboro box, opened it, and pulled out three clear plastic zip-lock-bags containing a white powdery substance. After looking at the bags, Officer D'Ambrosia placed them back into the box and placed a box in his shirt pocket.
Sergeant pat Roberts observed the transaction. The three plastic bags which Officer D'Ambrosia purchased from Brownyard contained cocaine, a controlled substance under Chapter 893, Florida Statutes.
As stated, the lounge only had, at most, four patrons besides Officer D'Ambrosia, CI and Roberts. The conversation with Brownyard about drugs occurred in a normal tone of voice. Officer D'Ambrosia did not attempt to conceal the purchase of drugs at the bar.
Before Officer D'Ambrosia and CI left the bar, they spoke to Brownyard about the best time to buy more cocaine. Brownyard stated that Thursday (May 10, 1984) would be good but that Officer D'Ambrosia or CI should first call. Brownyard said that if Officer D'Ambrosia or CI wanted one gram of coke, to call and say "Is the one girl in there tonight?" and if Officer D'Ambrosia or the CI wanted two grams of cocaine, to call and ask "If the two girls are tonight."
Brownyard would respond yes or no to the questions. After Officer D'Ambrosia and CI left, Sergeant Roberts had a conversation with Brownyard. Brownyard told Sergeant Roberts that he worked "directly for the owners" and that he "ran the placed" apparently referring to the lounge.
On May 10, 1984, at about 9:20 p.m., Officer D'Ambrosia and CI went to the licensed premises and took seats at the bar. Officer Olive had arrived about 15 minutes earlier to be the backup officer. Officer Oliva was seated at the bar across from Officer D'Ambrosia and CI with a clear view of both D'Ambrosia and CI. There were at most five unidentified patrons at the bar on that evening. Brownyard was attending the bar. Officer D'Ambrosia and CI greeted at bar and, after approximately ten minutes, Brownyard approached Office D'Ambrosia and CI and stated "Those two girls are here if you are interested." Officer D'Ambrosia affirmed and Brownyard told Officer D'Ambrosia and CI that the cocaine would be in 2 one-gram bags. Brownyard then left the bar and walked to the area of the men's restroom. After approximately one minute, Brownyard left the area of the restroom and walked back to the bar. Brownyard approached Officer D'Ambrosia and CI. Brownyard placed a matchbox on the top of the bar and looked at Officer D'Ambrosia. Officer D'Ambrosia placed $160.00 on the bar counter and picked up the matchbox. Brownyard picked up the money and, after counting it, placed it in his pocket. Officer D'Ambrosia opened the matchbox and noticed two clear plastic zip-lock bags containing a white powdery substance. Office Olive observed the transaction. The two plastic bags bought and received from Brownyard contained cocaine. The conversation with Brownyard about drugs occurred in a normal tone of voice and Officer D'Ambrosia made no effort to conceal the sale on the premises.
On May 14, 1984, at approximately 9:15 p.m. Officer D'Ambrosia entered the Riviera Resort Motel. Officer D'Ambrosia walked to the bar and sat down. Officer Wheeler had arrived before Officer D'Ambrosia as the backup officer. Officer D'Ambrosia entered into a conversation with the on-duty bartender named Janette about Brownyard. Janette stated that Brownyard had been fired. Janette told Officer D'Ambrosia that Brownyard had been fired by Chi Che, the bar manager (Arturo Muniz).
At approximately 9:45 p.m., a patron later identified as Benee Scola entered the bar. Approximately 15 minutes later, Janette received a phone call from Brownyard. Janette advised Brownyard that Officer D'Ambrosia was at the bar looking for him. Brownyard told Janette that he would be at the bar in approximately 45 minutes. Janette relayed this information to Officer D'Ambrosia and at approximately 10:45 p.m., Brownyard entered the bar and sat down. D'Ambrosia and Janette approached and greeted Brownyard. Office D'Ambrosia asked Brownyard if "The two girls were around." Brownyard affirmed and stated that the price would be $80.00 per gram. Janette was in a position to hear this conversation. Officer Wheeler moved to a different part of the bar to get a better view of D'Ambrosia, Brownyard and Janette and to talk to Benne Scola.
Brownyard asked D'Ambrosia if he was still interested in the "two girls" and Officer D'Ambrosia affirmed. Brownyard then obtained two matchboxes from Janette, who asked him (Brownyard) if one of the matchboxes was for her. Brownyard said yes. Brownyard left the bar and walked toward the men's restroom. Approximately two minutes, Brownyard returned and sat next to D'Ambrosia, placing a matchbox on top of the bar counter. The two clear plastic zip-lock bags containing cocaine were inside the matchbook cover. Officer D'Ambrosia pulled some currency from his pocket, counted out eight $20.00 bills and handed Brownyard the money below the bar counter. Officer D'Ambrosia picked
up the matchbook, examined the contents, and placed it in his shirt pocket. Officer Wheeler did not see the exchange of money but observed the remaining portion of the transaction.
On that evening, Chi Che entered the premises and set down two bar stools from Brownyard. Brownyard told D'Ambrosia that he had an argument with Chi Che about the liquor to carry at the bar and about accepting bad traveler's checks. After five or ten minutes, Chi Che left the bar. Janette asked Brownyard to watch the bar while she used the restroom. Brownyard agreed. Brownyard left the bar area after Janette returned from the restroom. D'Ambrosia states that Scola asked him (D'Ambrosia) if he knew where she could get some "blow." D'Ambrosia stated that she would have to talk to Brownyard.
Brownyard returned to the bar and Scola approached him and asked about the going rate for blow. Brownyard stated $80.00 for a gram and $40.00 for a half gram. Brownyard said that he could handle a half gram right now. Scola agreed and handed Brownyard some currency. Brownyard took the currency, left the bar, existed the premises and returned approximately five minutes later. Brownyard handed Scola a small plastic baggie. Officer D'Ambrosia left the bar at approximately 7:30 and Officer Wheeler left approximately 15 minutes later.
The conversations between Brownyard, Janette and Officers D'Ambrosia, Wheeler and Scola concerning the purchase of drugs occurred in normal tones of voice. Officer D'Ambrosia made no attempt to conceal the transaction.
On May 18, 1984, at approximately 11:30 p.m., Officer D'Ambrosia entered the licensed premises in an undercover capacity. Janette was tending the bar. Officer Phillips was seated at the bar as the backup officer. Brownyard and Scola were also at the bar. Officer D'Ambrosia sat down and Brownyard approached him. D'Ambrosia asked Brownyard if he had any "stuff" with him tonight. Brownyard said "sure." D'Ambrosia asked if it was still the same price and Brownyard said "yes." D'Ambrosia said "OK." Brownyard left the bar and walked away from D'Ambrosia's view. About three minutes later Brownyard returned and placed a matchbox on the bar counter in front of D'Ambrosia. Officer D'Ambrosia pulled out four twenty dollar bills from his pocket and paid Brownyard. D'Ambrosia opened the match box up, lifted out a clear plastic zip lock bag containing suspected cocaine. Janette was in a position to see this transaction. Officer Phillips also observed this transaction.
While tending bar, Janette spoke to Scola, "You want to go halves with me?" Scola stated that she would think about it since she had previously arranged a one half gram buy with Brownyard before officers D'Ambrosia and Phillips entered the bar. Janette later remarked that her boyfriend was later coming in with some medicine. Officer Phillips heard Scola and Janette discussing a cocaine deal. Janette told Scola it would be $35. Janette walked over to her boyfriend, Jeff Acosta, who gave her a small packet of aluminum foil. Janette gave the foil to Sonia and reminded her it was $35. Scola gave Janette two U.S. currency bills and told her to keep the rest as a tip. Janette gave Jeff the requested amount of the money. Scola later walked to the women's restroom. Officer Phillips later entered the women's restroom and observed Scola standing next to a toilet tank cover with an open packet of aluminum foil containing the suspected cocaine. Scola asked Officer Phillips to do a "line" with her, but Officer Phillips declined.
Conversations at the bar area concerning the use of drugs occurred in a normal tone of voice.
On May 25, 1984, at about 9:20 p.m., Officer Jenkins entered the licensed premises as a back up officer to Officer D'Ambrosia. At that time there were approximately six patrons in the bar area. Officer D'Ambrosia entered the premises approximately 9:25 and spoke to Janette about cocaine. Janette was told by Officer D'Ambrosia that the cocaine he bought from Brownyard was "poor quality" whereupon Janette allegedly admitted she was now dealing through her boyfriend Jeff. D'Ambrosia asked Janette if she would talk to Jeff about getting him some coke and she complied stating she would talk to him at about 10:10 p.m. when he (Jeff) entered the bar. D'Ambrosia approached and asked Jeff if he could get him an ounce and Jeff replied that he could. Later that night, D'Ambrosia and Jeff made a deal for one gram of coke that would be a sample for a future one ounce deal. According to D'Ambrosia, the purchase of one gram would take place on the next night, May 26, 1984. During that evening, Chi Che Muniz, the restaurant and lounge manager, entered the bar area. Officer D'Ambrosia approached Chi Che and told him that maybe Chi Che could pick up a woman if he did a couple of lines of coke. Chi Che refused.
On May 26, 1984, at approximately 8:45 p.m., Officers D'Ambrosia and Jenkins entered the licensed premises. Shortly thereafter, Officer Aliva and Sergeant Roberts entered the bar. D'Ambrosia greeted Janette and had a general conversation with her. Janette asked D'Ambrosia if he had scored any cocaine and he reply "no." Janette stated that she would try and contact Jeff by phone because he had beeper. Janette made a short phone call from the bar and later told D'Ambrosia that she had left a message that he (D'Ambrosia) was at the bar.
At approximately 9:30 p.m., a person later identified as Bill Hawkins entered the licensed premises. Bill approached Janette and told her that he was trying to locate some cocaine for her. Janette stated that she would buy a half from Bill for $35.00. Bill left the bar area and walked to the men's restroom. Officer Oliva went to the men's restroom. As Officer Oliva entered the restroom, he observed Bill changing clothes putting on a security uniform, complete with badge and night stick. Bill left the restroom and returned to the area. Bill told Officer D'Ambrosia that he worked part time as a security guard for Respondent on an as needed basis. At that time there were approximately 15 people in the lounge area.
Bill Hawkins told Janette that the cocaine would be on the premises but that he would have to leave for a while to pick it up. Bill left for approximately 30 minutes and returned to the bar area. When he returned, he engaged in conversation with Bob Skirde. Janette later handed D'Ambrosia a small clear plastic zip-lock bag and asked D'Ambrosia to give it to Bill and tell him it was from me. D'Ambrosia complied with Janette's request. D'Ambrosia asked Bill if he had an extra half gram and Bill replied no that he could give D'Ambrosia "a nose full." Bill Hawkins then walked to the men's restroom where he found Officer Oliva who had previously arranged to buy a half gram of cocaine from Bill for $35. Bill asked Officer Olive to hold the door
leading into the men's restroom while he did a line of coke. Officer D'Ambrosia observed Bob Skirde walk to the men's restroom and attempt to enter. Skirde was unable to enter the restroom inasmuch as Officer Olive was holding the door shut. Bill later approached Janette and asked her to get something to put it in. "Get me something." Janette handed Bill a napkin. Bill placed an object in the napkin, wrapped it up and gave it to Janette. Janette took the napkin and placed it in her purse. Janette later left the bar area and went to the restroom with what appeared to be the napkin she had received from Bill. Chi Che watched the bar while Janette was away. Officer D'Ambrosia states that he asked Janette "how was it?" and she replied "OK, but not as good as Jeff's."
Later, Bill asked Officer D'Ambrosia to go to the men's restroom with him. Inside the restroom, Bill pulled out a clear plastic zip-lock bag containing suspected cocaine. Bill asked D'Ambrosia to do a couple of lines with him and he (D'Ambrosia) refused. D'Ambrosia asked Bill if he could purchase a half gram from him and Bill stated yes he would look into it.
On June 1, 1984, at approximately 11:30 p.m., Officers D'Ambrosia and Jenkins separately entered the bar area. Officer Olive and Sergeant Roberts were there as back-up officers. D'Ambrosia talked to Jeff in Janette's presence about setting up a deal for an ounce of cocaine. Bill entered the premises and walked directly to Officer Jenkins. Bill and Officer Jenkins discussed cocaine and set up a deal for one gram to occur the next night at 7:00 p.m.
On June 2, 1984, at approximately 7:10 p.m., Officer Jenkins entered the Riviera Resort Motel. Officer Jenkins asked an employee at the front desk if the bar was closed. The employee stated that it would be opened soon and suggest that she go to the patio bar. Sergeant Roberts was at the patio bar. Bill Hawkins called Officer Jenkins and they both walked to the patio bar. Janette was sitting on the patrons' side of the bar. At approximately 7:30 p.m., Janette left the patio bar to open the inside bar.
Bill asked Beth, the patio bar attendant for a straw. Beth gave Bill a straw and stated that she knew Bill was not going to use it for his beer.
Bill cut the straw to a length of approximately two inches and stated to Officer Jenkins "Let's go take care of business." Officer Jenkins and Bill walked to the inside bar. Janette was tending the bar and approximately two patrons were there. Officer Jenkins paid Bill $80 with money from her purse. Officer Jenkins extended the money to Bill over the bar counter and asked how the cocaine was packaged. Bill said "in a small plastic bag" and thereupon reached in his back pocket and pulled out his wallet. Bill laid the wallet on the bar counter and pulled back a flap which exposed a small clear plastic zip-lock bag containing suspected cocaine. Later analysis revealed the substance was in fact cocaine. This transaction was observed by Officer Roberts. Janette later came over to Bill and asked "if he wanted to work as a bell boy tonight because the front desk had called her." Bill was offered fond and drink for his services of helping with the luggage of the guests at the hotel.
On June 4, 1984, Officer D'Ambrosia entered the Riviera Resort Motel and talked to Janette, the on-duty bartender. D'Ambrosia asked why Jeff was not at the bar. Janette replied that she would call Jeff about 10:30 or 11 p.m. and tell him that Officer D'Ambrosia was there at the bar. According to D'Ambrosia, Janette acknowledged that Jeff was to sell him (D'Ambrosia) a gram of cocaine. Officer D'Ambrosia left the bar and returned at approximately 10:45 p.m. D'Ambrosia and Jeff talked about setting up a deal for an ounce. On June 5, 1984, at about 8:10 p.m., D'Ambrosia telephoned Jeff at the Riviera Resort Motel to reschedule the drug deal to January 8, 1984 at 11:00 p.m.
On June 8, 1984, at approximately 8:45 p.m., Officer D'Ambrosia arrested Tommy Brownyard outside the Rodeo Lounge. A search of Brownyard's person produced a quantity of cocaine. Between 10:00 and 10:30 p.m., Officer D'Ambrosia, Jenkins, Oliva, Wheeler, and Sergeant Roberts entered the Riviera Resort Motel and proceeded to the bar area. D'Ambrosia talked briefly with Jeff. D'Ambrosia pulled $1500 from his wallet and showed the money to Jeff. Jeff told D'Ambrosia that it would take him approximately 10 minutes to get the cocaine and he (Jeff) left. Jeff came back to the bar area in approximately 15 minutes. Jeff was then carrying a short black leather jacket over his shoulder.
Sergeant Roberts observed a large clear plastic bag with cocaine stuck inside the jacket. Officer D'Ambrosia and Sergeant Roberts placed Jeff under arrest. The weight of the cocaine was determined to be 28.18 grams.
The Respondent's Defense
When Bob Skirde became responsible for total management of the Riviera, he inherited a security agreement with a service operated under contract with "Chief Bill Heinklein." The service provided one guard stationed at Riviera for patrol seven nights per week from 10:00 p.m. till 6:00 p.m. This service was terminated with Chief Heinklein's company on March 15, 1984 due to a seasonal decline in the occupancy in the hotel and due to unsatisfactory performance by guards supplied by Chief Heinklein.
William (Bill) Hawkins was hired by the "Chief" in January of 1984 and was terminated on March 15, 1984 because he was sleeping on duty while at the Riviera. Subsequent to terminating the relationship with Heinklein's company, Robert Skirde hired security on an as needed basis when heavy occupancy was anticipated such as the Memorial Day weekend. In this regard, Walter Patskanick was hired to provide security services during that weekend. During the weekend of May 26, 1984, William Dale Hawkins was at the facility and offered to "help out" in a conversation with Chi Che in exchange for food and drink. Bill Hawkins did not receive any monetary compensation for any services he provided.
Employees
Chi Che hired Tommy Brownyard as a bartender on February 19, 1984. His pay was $25 per shift. His employment application indicated that he had worked as an internal revenue service agent from January, 1976 until January, 1982. On May 12, 1984, Brownyard was fired by Chi Che for failure to observe company rules and policy.
On April 1, 1984, Chi Che hired Janette Hawkins to work the patio bar. Her pay was set at $25 per shift. Her employment application, as did the application of Tommy Brownyard, indicated that she had never been convicted of a crime. Following May 12, 1984, when Brownyard was fired, Janette was transferred to the inside lounge to work as bartender.
Respondent denies having any knowledge of any specific work being performed by Bill Hawkins on June 1, 1984. In this regard, the evidence revealed that Bill was not on Respondent's payroll and did not receive any pay on that date. Further, Respondent denies that Bill Hawkins was an employee at any time following his termination on March 15, 1984.
Upon the retention of Robert Skirde as the general manager of the Riviera Resort Motel, he (manager Skirde) immediately started to refurbish the facility and to generally upgrade the facility to serve the tourist market and to attract international tourists. The facility increased its occupancy more than 200 percent above the occupancy level that existed while the prior operator, Lodging Unlimited, operated the hotel.
Manager Skirde has completely refurbished the lobby; has renovated the plumbing; has recarpeted all of the villas; has painted selected areas of the facility to "change the theme"; has repaired the south side of the roof; has spent in excess of $12,000 in landscaping has published another brochure which
is being forwarded to travel agencies and, as stated earlier herein, has retained the services of the Hallandale Police Department to rid the facility of derelicts.
Manager Skirde has been in the hotel business in excess of 24 years and in Florida for more than 12 years in that business. He started his employment in the Industry with the Sheraton Hotel Chain and has worked at several large tourist hotels in the area before being retained by the Respondent. Manager Skirde is the incoming President of the HSMA, a trade association of hotels and motels.
Respondent has installed an electronic device which can contact police during an emergency, as needed.
While Respondent used Chief Heinklein's services to provide security at the facility, manager Skirde reviewed a log book which was maintained by the security personnel, a daily basis, immediately after he got to the facility each morning.
During May, 1984, occupancy declined significantly at the hotel and, for that reason, manager Skirde cut back on security and other areas until the season picks up during mid- July, 1984. Prior to that time, there had been no evidence of any drug transactions either by employees or patrons, by management or other persons involved in the operation of the Respondent's facility.
During manager Skirde's tenure, he has issued several memos concerning problems with security and other means of maintaining security at the facility. At his arrival at the facility each morning, he usually "walked the property off and has instructed all employees that they can contact him on a 24- hour basis if needed."
Manager Skirde has a policy of prohibiting employees from being on the property after their normal work hours have ended. Additionally, manager Skirde has instructed employees to contact him at any hint of drug activity.
Manager Skirde has never overheard any conversation regarding drug use on the premises of the Riviera motel. Manager Skirde has not seen any memo published by the Petitioner as to a drug educational program for licensees.
Elvis Reyes, a resident of New York City, New York, is employed by DBG properties, the owner of the Respondent's facility as an internal security officer. As part of his duties as an internal security officer, Reyes visits various properties owned by DBG properties unannounced and, in that connection, visited the Riviera Motel on May 2, 1984. Part of his instructions were not to divulge his affiliation with the parent company.
During Reyes' visit to the Riviera Resort Hotel on May 2, 1984, he was there for the specific purpose of trying to find drugs on the property, either through the use by patrons or the sale of drugs in the bar areas. When Reyes went to the facility, he visited the lounge on May 2 and while in the bar lounge, there were 3 people present, 2 of whom were bartenders and 1 patron. Reyes asked the bartenders and the 1 patron if they knew where he could get some "toot" or some "blow." On each occasion, Reyes got a negative response. Reyes returned to the lounge on May 3 and again tried to buy some drugs from both the on-duty bartenders and the patrons without any success.
Mr. Reyes filed a report with his superior, a Mr. Fruitbind of DBG properties in New York City, and related to him that there was no evidence of drugs being used on the premises by either patrons or employees. (Respondent's Exhibit 5.)
Dr. Robert Baer is the holder of a doctorate degree in Public Affairs and Administration and is employed at Nova University in Ft. Lauderdale. Dr. Baer has extensive educational training and experience in drug detection training and experience in the installation of security measures at hotel facilities. Dr. Baer served as a police officer with the Metro-Dade County Police Bureau from 1971 through 1977. He has served as an Officer in the Narcotics Unit and in the Organized Crime Bureau. Dr. Baer was received as an expert in these proceedings in surveillance, drugs and narcotics usage in hotels.
Based on Dr. Haer's interview of Respondent's management team and the security service in force at the facility, he concludes that the security at Respondent's facility is at least average or better than average. His opinion was based on his study of the area which is a low crime area, the fact that police officers frequent the area in the lounge and they regularly are seen patroling the area. Based on the following reasons, Dr. Baer felt that security at the Respondent's facility was more than adequate:
The security personnel are told not to go into the bar area;
The Security Director goes into the bar on a daily basis;
Brownyard was fired for dereliction of duties;
There was a penetration study conducted by Internal Security Officer Hayes, and
Management was unaware of any problems relative to drug usage by either employees or patrons.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Section 120.57(1), Florida Statutes.
The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.
The authority of the Petitioner is derived from Chapter 561, Florida Statutes.
Respondent, holder of a valid alcoholic beverage license, is subject to the disciplinary guides of Chapter 561, Florida Statutes.
Section 561.29(1)(a), Florida Statutes, empowers the Division of Alcoholic averages and Tobacco to revoke or suspend an alcoholic beverage license if it finds that a licensee or his agents, servants or employees are permitting another on the licensed premises to violate any of the laws of this state or the United States (emphasis added). A licensee may also be disciplined by the Division if the licensee is found guilty of "maintaining a nuisance on
the licensed premises." Section 561.29(1)(c), Florida Statutes. Section 823.10, Florida Statutes, declares a place or building where controlled substances are illegally kept, sold, or used to be a nuisance.
Section 893.13(2)(a)5, 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. A violation of this section also constitutes a violation of the beverage law through section 561.29(1)(c), Florida Statutes.
Florida law prohibits the sale, use, delivery or possession of cocaine, a controlled substance. Section 893.13, Florida Statutes.
Insufficient evidence was offered herein to establish that Respondent had any knowledge of the illegal drug transactions which occurred on the premises of the Respondent's facility during the times cited herein in the Notice to Show Cause. In this regard, evidence reveals that the Respondent conducted a penetration study by its Internal Security Officer, Elvis Reyes, which revealed that there were no illegal drug transactions being consummated on the premises by either patrons or employees of the Respondent. Also, on the one occasion when Officer D'Ambrosia attempted to involve Chi Che, the lounge manager, into an illegal drug transaction, Chi Che unequivocally refused to get so involved. Evidence herein further reveals that the Respondent also exercised due diligence in supervising and maintaining surveillance of the licensed premises during the evening hours. Evidence herein, as revealed by the expert testimony of Dr. Baer, confirms Respondent's position that the security measures employed by Respondent were adequate at the facility and were perhaps better than the security devices employed by other licensees in the area.
Unlike the situations that existed in golden Dolphin II, Inc. v. State, Division of Alcoholic Beverages and Tobacco, 403 So. 2d 1372 (Fla. 5th DCA 1081), and G and B of Jacksonville, Inc. v. State, Department of Business Regulation, Division of Beverage, 371 So. 2d 137 (Fla. 1st DCA 1979), and Pauline v. Lee, 147 So. 2d 359 (Fla. 2d DCA 1962), there was insufficient evidence of violations herein by Respondent's employees to show a persistent and recurring activity from which it could be inferred that the licensee had knowledge of the illegal activity. Here, there "was no evidence that the licensee actually or constructively permitted anyone to conduct illegal drug activities on the premises. Cf. Bach v. Florida State Board of Dentistry, 378 So. 2d 34 (Fla. 1st DCA 1980). All of those cases referred to situations where there was a persistent and practiced manner in which violations executed by agents, servants or employees of the licensee led to the conclusion that the licensee either condoned or negligently overlooked the illegal activity. No such showing was made in this proceeding.
Specifically, consideration was given to the fact that Respondent is alleged to have violated Section 561.29(1)(a), Florida Statutes, by its employee, Tommy Brownyard, on May 8 and May 10, 1984, stemming from a sale or delivery of cocaine to Beverage Officer D'Ambrosia on the licensed premises in
violation of Section 893.13, Florida Statutes. The evidence is clear as set forth in the facts hereinabove that on May 12, 1984, Brownyard was fired by Chi Che for failure to observe company rules and policy. There is no evidence tending to show that the Respondent was aware of the illegal acts conducted by Brownyard on May 8 and May 10 which could be chargeable to the Respondent.
Further, there was no evidence that the Respondent had actual or constructive knowledge of any of Brownyard's acts as relates to illegal activities on its premises prior to or subsequent to the time the his discharge.
Insufficient evidence was offered to establish that Respondent violated Section 561.29(1)(a), Florida Statutes, by the sale or delivery of cocaine to Beverage Officer Jenkins on Respondent's premises in violation of Section 893.13, Florida Statutes, on or about June 2, 1984, as alleged in paragraph 3 of the Notice to Show Cause filed herein. Specifically, the evidence reveals, and it is concluded, that William (Bill) Hawkins was no longer an employee of Respondent subsequent to March 15, 1984, the date that he was terminated by Chief Bill Heinklein because he was sleeping on duty while serving as a security guard for Chief Heinklein while employed at the Riviera. There was no evidence introduced herein tending to show that the Respondent had actual or constructive knowledge of any illegal activities by Bill Hawkins which may be chargeable to the Respondent. It is so concluded.
Insufficient evidence as offered herein to establish that the Respondent maintained a public nuisance on its licensed premises between the dates of May 8, 1984 through the date of the service of the Notice to Show Cause filed herein in violation of Sections 561.29(1)(a) and (c); Section 823.01 and 823.10, Florida Statutes, as alleged in paragraphs 4 and 5 of the Notice to Show Cause filed herein. A licensee may be guilty of violating the beverage law and of operating a nuisance if he is guilty of intentional wrongdoing or if he fails to exercise due diligence in supervising and maintaining surveillance over the licensed premises. See, Hex Allen Jones, t/a Happy Hour v. State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco,
408 So. 2d 1108. As concluded hereinabove, there was no evidence tending to show that Respondent bad any knowledge, actual or constructive, of the illegal drug transactions referred to herein in the Notice to Show Cause.
Likewise, there was no evidence introduced herein which could plausibly form a basis for concluding that the Respondent allowed its agent, Janette, to violate the beverage laws on its licensed premises by permitting the sale of cocaine on May 14, 1984 from Tommy Brownyard to Officer D'Ambrosia and permitting a sale of cocaine on June 2, 1984 from Bill to Officer Jenkins' as alleged in paragraph 6 of the Notice to Show Cause filed herein.
In each of the alleged violations set forth in the Notice to Show Cause, based on the facts as established during the hearing, the employees were not acting within the scope of their employment with Respondent. Further, in substantially all of the violations referred to during the hearing, the perpetrators were not acting as agents, servants or employees of the Respondent in a manner which would be chargeable to the Respondent based on a failure to exercise a reasonable standard of negligence or culpability within the meaning of Section 561.29(1)(a), Florida Statutes. In this regard, evidence reveals that the Respondent employed security measures to detect, or attempt to detect, the presence of illegal drug transactions on the licensed premises. Moreover, on the one occasion wherein Petitioner attempted to involve management in the illegal drug transactions, Respondent's lounge manager, Chi Che, refused. For all of these reasons, including the security measures employed by the Respondent, the lack of any evidence tending to establish that the Respondent
had knowledge of any illegal drug transactions being consummated on its licensed premises, Petitioner failed to establish that the Respondent violated Section 561.29(1)(a), Florida Statutes, as alleged in the Notice to Show Cause filed herein. Finally, insufficient evidence was of fared herein to establish that the Respondent violated Section 561.29(1)(c) in that the evidence failed to establish that the complained of activity was a nuisance in fact. In this regard, evidence revealed that the Petitioner, only through various covert mechanisms, as able to detect the complained of activity. There was no evidence introduced herein tending to establish that the public at large or that management had any knowledge of the illegal activity. The activity involved herein and, as cited in the Notice to Show Cause, was activity which was apparently created by Petitioner's agents and increased only at the behest of the Petitioner's actions on the licensed premises. Evidence reveals that the actions of discharged employee, Brownyard, "could have been consummated at any location that the Petitioner had selected and it is concluded herein that this is not the kind of activity which Petitioner can initiate, increase and thereafter cite as a nuisance absent other factors showing involvement by either the public or management. Finally, based on the overall upgrading of the facility by the Respondent to attempt to attract select guests at its facility, the penetration measures undertaken by its Internal Security Office and the other security measures coupled with the total lack of actual or constructive knowledge by management, all points to the conclusion that Respondent was not at all guilty of the violations cited in the Notice to Show Cause filed herein.
See, Jones, supra.
Based upon the foregoing findings of fact and conclusions of law, it is hereby recommended that the Petitioner enter a Final Order lifting its emergency suspension of Respondent's alcoholic beverage license number 16-615-S, Series 4- COP, and dismiss the Administrative Complaint filed herein and the accompanying Notice to Show Cause filed against the Respondent.
RECOMMENDED this 6th day of August, 1984, in Tallahassee, Florida.
JAMES E. BRADWELL
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 6th day of August, 1984.
ENDNOTES
1/ The parties were allowed through June 29, 1984, to submit briefs and/or memoranda supportive of their respective positions. Briefs and memoranda were received from counsel for the parties and were considered by the undersigned in preparation of this Recommended Order. To the extent that the parties' proposed
findings, etc., are not incorporated in this Recommended Order, said proposed findings, etc., were deemed either irrelevant, immaterial, or not otherwise supported by record evidence.
2/ Based on the recommendation entered herein, no recommendation is made respecting Respondent's claim that it did not receive sufficient notice of the charges and allegations respecting the drug episode of June 8 and other episodes referred during the hearing to allow it an opportunity to prepare defenses to those charges and that it therefore was thus denied of due process of law.
COPIES FURNISHED:
Thomas Barnhart Staff Attorney Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Henry Latimer, Esquire Post Office Box 140800 Miami, Florida 33134
Steven Reininger, Esquire William Weber, Esquire
777 Brickell Avenue, Suite 1000
Miami, Florida 33131
Gary Rutledge Secretary
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Aug. 07, 1984 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 07, 1984 | Recommended Order | There was insufficient evidence presented that Respondent was at fault or responsible for illegal activities on his premises. Recommend dismissal. |
