vs. ) CASE NO. 84-4512
Respondent. )
Pursuant to notice this matter came to be heard in West Palm Beach on January 30 and 31, 1985 before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:
For Respondent: Craig R. Wilson, Esquire
On November 27, 1984 the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, Petitioner, issued a Notice to Show Cause against Robert and Huguette Meloche, doing business as The Brass Bull, Respondents, containing sixteen (16) counts. During the final hearing, Petitioner dropped Count 1 and that portion of Count 15 which references the substance valium. As amended the Notice to Show Cause charges Respondents with violating Sections 893.13(1)(a)1., 2., 893.13(2)(a)5., and 561.29(1)(a), (c), Florida Statutes, by maintaining a licensed establishment between September 14 and November 20, 1984 which was used for keeping, selling or delivering controlled substances, specifically cocaine and cannabis.
Petitioner introduced exhibits numbered 1 through 7 and 9 through 15. No exhibit 8 was marked for identification or offered by Petitioner. Respondent introduced exhibits numbered 1 through 3 and 5 through 7. Exhibits numbered 4 and 8 were marked for identification for Respondent but were not offered into evidence. Petitioner's exhibit 15 is a deposition of Richard Walker, law enforcement investigator with the Division of Alcoholic Beverages and Tobacco. The deposition was accepted in evidence and objections raised during the taking
of this deposition by counsel for Respondent are specifically overruled. Petitioner's exhibits 2 through 7, and 9 through 14 consisted of various evidence bags containing controlled substances. These were returned to law enforcement agents at the conclusion of the hearing in whose custody these exhibits remain. Petitioner called three witnesses and Respondent offered the testimony of six witnesses, including Respondents themselves. A transcript of the final hearing was filed on March 4, 1985.
Respondents hold alcoholic beverage license number 60- 0122, series 2- COP, and do business at 704 South Military Trail, West Palm Beach under the name of The Brass Bull. Respondents have operated The Brass Bull for six years without any complaints from law enforcement agencies until the execution of a search warrant on the premises on November 29, 1994.
On September 12, 1984 the Petitioner and the Palm Beach County Sheriff's Office began an investigation of The Brass Bull and met with a confidential informant, hereinafter referred to as CI, who was employed at the time as a dancer at The Brass Bull. The CI agreed to make introductions for law enforcement officers to employees on the premises and was paid $150 on November 26, 1964 for making these introductions. The CI had been placed on probation in July, 1983 and was on probation during this investigation. The CI's husband was placed on probation on September 11, 1984.
On September 14, 1984 Investigator Kenneth Goodman, Division of Alcoholic Beverages and Tobacco, and Sergeant David R. Harris, Riviera Beach Police Department, entered the licensed premises and talked with a dancer identified as "Linda" about the purchase of some marijuana. Linda gave Investigator Goodman a single marijuana cigarette analyzed as containing 260 milligrams of cannabis, but she did not have any to sell.
Investigator Goodman and Sgt. Harris met another dancer on the premises, identified as "Sunrise," on September 19, 1984 and discussed their desire to purchase some cocaine. Sunrise was later identified as Dawn Birnbaum. Sgt. Harris gave Sunrise $40, she left the premises through the front door, returned in a few minutes and handed Sgt. Harris two aluminum foil packets later analyzed as containing 200 milligrams of cocaine. Investigator Goodman also purchased 100 milligrams of cocaine from Sunrise on September 19, 1984. These sales took place on the premises while other patrons were present, although Sunrise left the premises to obtain the cocaine for the sales.
On September 25, 1984, Sgt. Harris entered the licensed premises with Investigator Richard Walker, Division of Alcoholic Beverages and Tobacco. Investigator Walker purchased 505 milligrams of cocaine from Sunrise who left the premises to obtain the cocaine but returned to complete the sale on the premises. Other patrons were on the premises at the time of the transaction.
Investigator Goodman and Sgt. Harris were on the licensed premises on October 6, 1984 and discussed their desire to purchase cocaine with a dancer identified as Christine Flynn. They each gave Flynn $45, she left the premises, returned and handed them each a plastic baggie containing a total of 590 milligrams of cocaine. Other patrons were on the premises at the time of the transaction.
On October 12, 1984, Investigator Goodman and Sgt. Harris entered the premises and met a waitress identified as April Finster. Investigator Goodman
asked to buy some marijuana. She went into a back room on the premises and returned with one marijuana cigarette containing 300 milligrams of cannabis, which she gave to Investigator Goodman.
On October 16, 1984, Sgt. Harris and Investigator Walker met a dancer identified as "Blondie" on the premises and discussed their desire to purchase some cocaine from Blondie. The CI was present during this discussion, took $20 from Sgt. Harris, and then left the premises with Blondie. When Blondie and the CI returned, the CI gave Sgt. Harris a plastic bag which was heat sealed and filled with 110 milligrams of cocaine. Blondie stated that she always heat sealed her bags. Later Sgt. Harris gave Blondie $100, she brought him $70 change and then went into the dressing room. When Blondie exited the dressing room she approached the CI and they approached the table where Sgt. Harris was sitting. The CI placed a book of matches on the table and Blondie told Harris the cocaine was in the book of matches. Sgt. Harris found a heat sealed plastic bag containing 135 milligrams of cocaine in the matches. There were other patrons on the premises when these transactions took place.
Sgt. Harris and Investigator Walker met a dancer named "Lola" on the premises on October 30, 1984. Sgt. Harris gave Lola $80, she entered the dressing room and then returned to where Sgt. Harris was seated with a white towel around her hand. Inside the towel was a bag containing 800 milligrams of cocaine.
While on the premises with Sgt. Harris on October 31, 1984, Investigator Walker gave Lola $100. She left the premises and returned with a plastic bag containing 560 milligrams of cocaine which she gave to Investigator Walker.
On November 6, 1984 Investigator Goodman was on the premises with Sgt. Harris, and Investigator Goodman gave Lola $55. Lola approached a white male patron and then returned to Investigator Goodman and gave him a plastic bag containing 400 milligrams of cocaine.
On November 20, 1984 Investigator Goodman was on the premises with Sgt. Harris. Lola approached Investigator Goodman and asked him if he wanted to buy some cocaine. He gave her $50, she left the premises and returned with a bag containing 300 milligrams of cocaine which she gave to Investigator Goodman. Other patrons were on the premises at the time of the transaction.
Investigator Goodman and Sgt. Harris were also on the licensed premises on September 28, October 9 and 10, November 1 and 5. On each occasion they discussed the purchase of controlled substances as defined in Section 893.03, F.S., with Respondents' employees who were on the premises at the time of these discussions. No actual transactions took place on these dates.
In brief summary of the foregoing, during the period of September 14 to November 20, 1984, transactions involving the sale of a total of 3.7 grams of cocaine and gifts of 560 milligrams of cannabis took place at The Brass Bull between Respondents' employees and Investigators Goodman and Walker, and Sgt. Harris. There were also five occasions when the purchase of controlled substances was discussed with Respondents' employees on the premises but no actual transaction took place. The CI was on the premises during most of these occasions, introducing the law enforcement officers to the various employees. The transactions usually took place while other patrons were on the premises, and included Respondents' employees passing the controlled substances on or above the table at which the officers were seated. On some occasions the
employees left the premises after receiving money from the officers and returned a short time later with the controlled substance which they then gave to the officers on the premises.
Respondents do not take an active role in managing The Brass Bull. They rely on a day manager and a night manager to hire, fire and discipline employees, to schedule the dancers, and to enforce the rules which are posted in the employees' dressing room. Rule 11 prohibits employees from having drugs or "liquors" on the premises, and states that anyone having these substances on the premises will be terminated immediately. Respondents never met with employees, other than their managers with whom they met or talked almost daily. Conversations and meetings with the managers were usually social, however, and generally did not involve business matters. Business meetings with the managers were held infrequently. Robert Meloche only visited the premises at 7:00 a.m. when no one else was present in order to review the prior night's receipts.
At all times relevant hereto, Respondents employed various dancers on the licensed premises under the terms of an Entertainment Booking Agreement. All dancers were required to sign the booking agreement and agree to working conditions prescribed by the Respondents, including compensation arrangements,
the number and color of their costumes, work hours, and the additional duties of cleaning and serving tables. Respondents also prescribed a set of seventeen
(17) rules for all dancers and other employees. The above referenced individuals named Linda, Sunrise, Christine Flynn, April Finster, Blondie, Lola, and the Confidential Informant were employees of Respondents' at the licensed premises during the time relevant to this case.
In making the above findings, the undersigned Hearing Officer has considered proposed findings of fact submitted by the parties pursuant to Section 120.57(1)(b)4., F.S. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings have been rejected as subordinate, cumulative, immaterial, unnecessary or not based on competent substantial evidence. Specifically, Respondents' proposed findings as to Counts 14, 15 and 16 are rejected since they are not based on competent substantial evidence and are otherwise immaterial and irrelevant.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this cause. Section 120.57(1), F.S. Section 561.29(1)(a), (c), F.S., provides that 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 by the Division that such person, or his employees, have violated the laws of this state on the licensed premises, or have maintained a nuisance on the licensed premises.
Section 893.13(2)(a)5., F.S., makes it unlawful for any person: To keep or maintain any store, shop,
warehouse, dwelling, building, vehicle, boat, aircraft, or place which is resorted to by persons using controlled substances in
violation of this chapter for the purpose of using these subsubstances, or which is used for keeping or selling them in violation of this chapter.
Cocaine and cannabis are controlled substances and it is unlawful to sell, use, deliver or possess these substances, except as otherwise authorized by Chapters 893 and 499, F.S. Section 893.13, F.S.
The testimony and evidence presented at the hearing clearly supports the charges of violating Section 893.13, F.S., through the unlawful selling, possessing and assisting in the sale of controlled substances on the licensed premises by Respondents' employees. The same evidence and testimony indicates that the licensed premises repeatedly served as a place for the sale and delivery of controlled substances between September 14 and November 20, 1984. Specifically, there were five separate occasions (September 28, October 9, 10, November 1, 5) during this time when law enforcement officers entered the premises and discussed the purchase of controlled substances with Respondents' employees, and an additional eight separate occasions when the actual purchase of controlled substances took place (September 19, 25, October 6, 16, 30, 31, November 6, 20). There were also two occasions when Respondents' employee gave law enforcement officers a marijuana cigarette on the premises (September 14, October 12). These transactions and discussions about the illegal sale of controlled substances on the licensed premises involved six of Respondents' employees, excluding the confidential informant (Linda, Sunrise, Christine Flynn, April Finster, Blondie and Lola).
It the case of G & B of Jacksonville, Inc. v. State, Department of Business Regulation, 371 So. 2d 137 (Fla. 1st DCA 1979), it was held that a licensee may not remove himself from responsibility for violations of the law committed by his agents, servants, or employees "by claiming ignorance of the repeated violation." It was further held:
If a licensee does not maintain sufficient intelligence with reference to activities at his or its licensed premises so as to know that two or more of its employees are engaged in such activity as was herein established, then such licensee must be held to have been lacking in reasonable diligence in the proper management of its licensed premises.
Id. at 139.
In the leading case of Lash, Inc. v. State, Department of Business Regulation, 411 So. 2d 276 (Fla. 3d DCA 1962), a license revocation was upheld where it was established that beverage agents had on five occasions, over a period of a week, purchased controlled substances from two of appellant's employees. The court noted that where the laws are repeatedly and flagrantly violated by employees of the licensed premises, "an inference arises leading to the conclusion that such violations are either fostered, condoned, or negligently overlooked by the licensee. See also Pauline v. Lee, 147 So. 2d 359 (Fla. 2d DCA 1962).
The evidentiary standard for the revocation of an alcoholic beverage license is competent substantial evidence. Mr. Humble, Inc. v. Division of Alcoholic Beverages and Tobacco, 461 So. 2d 223 (Fla. 1st DCA 1994). This
standard has been met herein as well as the criteria set forth in the G & B and Lash cases, above. In contrast to Lash where two employees made a total of five unlawful sales of controlled substances, here six of Respondent's employees were involved with unlawful activities which included sales of controlled substances on eight separate occasions, discussions of such sales with law enforcement officers on an additional five separate occasions, and the gift of marijuana cigarettes to an officer on two occasions. In further contrast to Lash where the violations took place over a one week period, here the violations occurred over a two month period.
The violations in this case are more persistent and recurring than in Lash, have been established by competent substantial evidence, and there is no evidence that Respondents exercised the level of care and diligence which they should have to prevent these continuous violations on their licensed premises. They seek to delegate all responsibility for the day to day management of the premises, and it's employees, to their day and night managers, in whom they continue to express great confidence despite these events. Yet, Respondents hold the license for these premises, are ultimately responsible for its operation, and cannot abdicate their duty to exercise ordinary care in the maintenance of the premises and the supervision of their employees.
Respondents contend that the dancers working on the licensed premises were not their employees, but were independent contractors. The facts do not support Respondents' contention since clearly Respondents had the right, and in fact did direct what the dancers would and would not do, as well as when and how it would be done. Respondents retained the absolute right to fire these entertainers without liability or damages, and did exercise that authority. As such, Respondents had the right of control over these entertainers who therefore are properly classified as their employees. 2 Fla. Jur. 2d, AGENCY AND EMPLOYMENT, Sections 106-109 at pp. 267-274. It must also be pointed out that Sections 561.29(1)(c) and 893.13(2)(a)5., F.S., with which Respondents are charged, proscribe the maintenance of a store, shop, building etc. which is resorted to by persons using controlled substances in violation of the law, or which constitutes a nuisance. The evidence supports a finding that Respondents have violated these provisions since they owned and maintained the licensed premises where these illegal activities occurred, and these violations are not conditioned upon the acts being committed by Respondents' agents or employees. It is the maintaining of such a place of business that is prohibited.
Respondents have also questioned the propriety of the way in which a confidential informant was used in this case. They contend that the confidential informant was not honestly dealing with law enforcement agents and also was not acting within the parameters of a law-abiding citizen. The evidence does not support either contention. Unlike the situation in State v. Glosson, et al., Florida Supreme Court, Case No. 64,699, January 17, 1985, 10
F.L.W. 56, the confidential informant in this case was not offered a contingent fee, nor was she left unsupervised to make cases for which she would receive substantial financial benefit depending upon her testimony and the success of prosecutions. In Glosson the Supreme Court stated, "The due process rights of all citizens require us to forbid criminal prosecutions based upon the testimony of vital state witnesses who have what amounts to a financial stake in criminal convictions." (Emphasis supplied). The facts in Glosson significantly differ from those in this case.
Based upon the foregoing findings of fact and conclusions of law, it is recommended that Petitioner enter a final order revoking Respondent's license number 60-0122, series 2-COP.
DONE and ENTERED this 1st day of April, 1985 at Tallahassee, Florida.
DONALD D. CONN
FILED with the Clerk of the Division of Administrative Hearings this 1st day of April, 1985.
Sandra Stockwell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Craig R. Wilson, Esquire
Howard M. Rasmussen, Director Division of Alcoholic
