vs. ) CASE NO. 86-1030
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on July 17, 1986 in Miami, Florida. The following appearances were entered:
FOR PETITIONER: Louisa E. Hargrett, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32201-1927
This cause came on for final hearing on July 17, 1986. Notice of Hearing was mailed to both parties on April 30, 1986. The Respondent was not present nor otherwise represented at the hearing. The Petitioner presented the testimony of two witnesses. In addition, Petitioner's Exhibits 1-5 were duly offered and admitted into evidence.
On July 25, 1986, the Respondent submitted an affidavit stating that he did not receive notification of the final hearing and requesting that the hearing be "re-opened." The Petitioner submitted a Response to Affidavit wherein she objected to the hearing being "re-opened". In Scott v. Johnson, 386 So.2d 396 (Fla. 3rd DCA 1971) the Court held that where the trial court signed or certified a notice of trial as being mailed, it constituted prima facie proof of mailing. The signature of the hearing officer on a Notice of Hearing may be analogized to a trial court's certificate of service under Scott or an attorney's certificate of service under Rule 1.080, F R Civ. Pro., which serves as prima facie proof that the item concerned was mailed. As the Court stated in Scott: " . . . proof of mailing raises the presumption that the mail was received . . . and . . . this presumption is not overcome by a denial, even though sworn, that the order was not received (citations omitted) . . ." Id at 69. Upon careful consideration, the undersigned is of the opinion that the
Respondent's naked denial of receiving the notice of hearing is not sufficient to overcome the presumption of receipt created by the mailing thereof.
Accordingly, the Respondent's request to re-open the hearing is denied.
The Petitioner submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
The issue is whether the facts alleged in the Notice to Show Cause in this case are true and whether those facts, to the extent that they are true, warrant revocation, suspension or other discipline of the license of Respondent. The Notice to Show Cause explicitly alleges several drug-related and one disorderly conduct violations on the licensed premises and implicitly alleges the Respondent's culpable responsibility for the violations under Section 561.29(1)(a), Florida Statues. The Notice To Show Cause also alleges that Respondent maintained the licensed premises as a place where controlled substances were illegally kept, sold, or used in violation of Sections 823.01 and 561.29(1)(e), Florida Statutes and Sections 893.13(2)(c) and 561.29(1)(a), Florida Statutes.
Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact:
At all times relevant hereto, the Respondent, Rene Tamer, held alcoholic beverage license number 23-07334, series 2-COP, for the licensed premises known as El Emperador, located at 36-38 Ocean Drive, Miami Beach, Florida.
On January 27, 1986, Beverage Investigator Carlos Baixauli went to the licensed premises of El Emperador. While there, he saw a black latin female walk over to a dog that was lying on the floor. Baixauli heard the woman ask the dog in spanish if he (the dog) wanted to have sex. The woman then fondled the dog's penis for approximately 20 minutes. Night manager Luis Tamer was present when this incident occurred.
On February 5, 1986, Investigator Baixauli, while inside of the licensed premises of El Emperador, arranged to purchase one gram of cocaine from a white latin male, known as El Indio (the Indian). El Indio told Baixauli that he needed the $60.00 "up front." When Baixauli expressed concern as to whether El Indio would return with the cocaine or his money, El Indio stated that he worked at El Emperador, was always around and could be trusted. Baixauli gave El Indio $60.00. El Indio left the premises, returned and handed Baixauli a small plastic package of cocaine wrapped in a white napkin. Baixauli opened the napkin and conspicuously inspected the package of cocaine by holding it up to approximately eye-level and tapping it with his fingers. Luis Tamer was present and behind the bar at the time.
On February 10, 1986, Investigator Baixauli visited the licensed premises of El Emperador. While Baixauli was at the bar talking to on-duty manager Luis Tamer, El Indio went over and asked Baixauli if he wanted to buy some "yeyo," a Spanish term for cocaine. Baixauli agreed to purchase one gram of cocaine and gave El Indio $60.00. El Indio subsequently returned and again
interrupted a conversation between Baixauli and Luis Tamer. El Indio handed Baixauli a matchbook, from which Baixauli removed a plastic package containing cocaine. Baixauli held up the package and showed to his partner Garcia. El Indio told Baixauli that he could be found at El Emperador between 2:00 and 4:00
A.M. performing clean-up duties and at 11:00 A.M. stocking the beer coolers or running errands for Rene Tamer.
On February 12, 1986, Investigator Baixauli visited the licensed premises of El Emperador. While there, Rene Tamer asked Baixauli: "Are you still working for the Division of Alcoholic Beverages?", to which Baixauli feigned ignorance and replied that he did not know what Rene Tamer was talking about. Rene Tamer, Luis Tamer and other employees then briefly retired to the kitchen where Baixauli observed them "looking out" at him as if to get a better view. El Indio arrived at El Emperador at approximately 2:00 P.M. and began stacking beers and cleaning the premises. El Indio asked Baixauli if he wanted any cocaine and Baixauli handed him $60.00 in front of Luis Tamer. El Indio later returned and handed Baixauli a matchbook. Baixauli removed a plastic package containing cocaine from the matchbook, held it up while inspecting it and showed it to his partner, Garcia. Luis Tamer was at the front counter during the transaction.
On February 13, 1986, Investigator Baixauli visited the licensed premises of El Emperador. El Indio asked Baixauli if he could bring him anything. Baixauli gave El Indio $60.00 for one gram of cocaine. At approximately 4:00 P.M. El Indio returned and handed Baixauli a plastic package containing cocaine, which Baixauli held up and tapped with his finger. Luis Tamer, the manager, was standing behind the bar and observed Baixauli's inspection of the cocaine. Luis Tamer smiled and said nothing.
On February 17, 1986, Investigator Baixauli visited the licensed premises of Emperador. Baixauli went to the bar and struck up a conversation with Luis Tamer. El Indio went over and asked Baixauli if he needed anything, to which Baixauli replied "yes" and gave El Indio $60.00. El Indio returned with some cocaine while Baixauli was still speaking with Luis Tamer. Baixauli removed the plastic package of cocaine from the matchbook and held it up to inspect it. Once again, Luis Tamer just smiled.
On February 24, 1986, Investigator Baixauli returned to El Emperador. Baixauli went over to off-duty employee Camaquay and struck up a conversation. El Indio approached them and asked Baixauli if he wanted any cocaine. Baixauli responded that he did and gave El Indio $60.00, at which time Camaquay started laughing and said that he had been told that Baixauli was a "Narc" and must be setting up El Indio. El Indio later returned to where Baixauli was seated at the bar talking to Camaquay and manager, Luis Tamer, and handed Baixauli a matchbook. Baixauli removed a plastic package of cocaine from the matchbook and held it up for inspection, tapping it with his finger. Neither Camaquay nor Luis Tamer said anything to Baixauli.
Later on in the evening of February 24, 1986, Baixauli asked Camaquay if El Indio was coming back to El Emperador. Camaquay told Baixauli not to worry, because he, Camaquay, could get cocaine from the same source as El Indio. Baixauli, after obtaining change from Luis Tamer, gave Camaquay $30.00 for a half-gram of cocaine. Camaquay later returned and tossed a plastic package of cocaine onto the bar in front of Baixauli. Baixauli held up the bag at eye level and tapped it with his fingers in view of manager Luis Tamer and other patrons.
On February 26, 1986, Investigator Baixauli went to El Emperador and asked Luis Tamer if Camaquay was in. Camaquay went over to Baixauli, showed him a plastic bag containing marijuana and asked if he wanted to smoke. Baixauli said no. Camaquay then went into the restroom from which Baixauli then smelled a strong odor of marijuana. Manager Luis Tamer asked Baixauli where Camaquay was and Baixauli told him that Camaquay was in the bathroom smoking marijuana.
Later at El Emperador on February 26, 1986, El Indio approached Baixauli and asked if he needed anything. Baixauli gave El Indio $60.00 for some cocaine. El Indio later returned and gave Baixauli a matchbook. Baixauli removed a plastic package of cocaine from the matchbook, held it up and tapped it with his fingers. Luis Tamer was standing behind the bar looking at Baixauli and Camaquay was standing by the pool table looking at Baixauli.
After Baixauli received his cocaine from El Indio on February 26, 1986, Camaquay approached several patrons playing pool and asked if they wanted to buy drugs. Camaquay showed them a plastic package of marijuana which he took from his pocket, in full view of Baixauli, and Luis Tamer the manager, who were all looking in his direction.
After Camaquay's attempt to sell marijuana to the pool playing patrons, he approached Baixauli and asked if he could bring him anything. When Baixauli agreed, Camaquay left the premises and shortly returned, tossing a plastic package of cocaine onto the bar in front of Baixauli and Luis Tamer, who was standing behind the bar in front of Baixauli. Baixauli held up the plastic bag and tapped it with his fingers.
On March 4, 1986, Investigator Baixauli returned to El Emperador. Luis Tamer yelled to El Indio that his "friends" were there. El Indio approached Baixauli and Baixauli gave him $60.00. While El Indio was out obtaining Baixauli's order, on-duty employee Camaquay went over to Baixauli and
asked if he wanted to buy some cocaine. Baixauli said "yes" and handed Camaquay
$30.00 over the bar. El Indio returned shortly with a plastic package containing cocaine. Baixauli held up the package and showed it to his partner, Garcia. Camaquay later returned and handed Baixauli a plastic package of cocaine. Baixauli raised the bag and tapped it with his fingers.
On March 11, 1986, Investigator Baixauli visited El Emperador. Luis Tamer was present and tending the bar. El Indio approached Baixauli and asked him if he needed any cocaine. Baixauli said "yes" and gave El Indio $30.00 for a half gram of cocaine. El Indio later returned and handed Baixauli a matchbook containing a plastic package of cocaine. Baixauli performed his usual post-sale inspection of the cocaine by holding the package up to approximately eye-level and tapping it with his fingers.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to this proceeding. Section 120.57, Florida Statutes.
Section 561.29, Florida Statutes, provides in pertinent part that: "1. The [Division of Alcoholic Beverages and Tobacco] is given full power
and authority to revoke or suspend the license of any person holding a license
under the Beverage Law, when it is determined or found by the Division upon sufficient cause appearing of:
Violation by the licensee or his or
its agents, officers, servants, or employees, on the licensed premised, or elsewhere
while in the scope of employment, or any of
the laws of this state or of the United States, or violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages, or engaging in or permitting disorderly
conduct on the licensed premises, or permitting another on the licensed premises to violate any of the laws of the State
or of the United States; except that whether or not the licensee or his or its agents, officers, servants, or employees have been convicted in any criminal court of any violation as set forth in this paragraph shall not be considered in proceedings before the Division for suspension or revocation of a license except as
permitted by Chapter 92 or the rules of evidence.
(c) maintaining a nuisance on the licensed premises.
* * *
3. The Division may impose a civil penalty against the licensee for any violation mentioned in the Beverage Law, or any rule issued pursuant hereto, not to exceed $1,000 for violations arising out of a single transaction. If the licensee fails to pay the civil penalty, his license shall be suspended for such period of time as the division may specify.
Section 823.10, Florida Statutes, declares a place or building where controlled substances are illegally kept, sold, or used, to be a nuisance. And, Section 893.13(2)(a) Florida Statutes, 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."
Marijuana and cocaine are controlled substances. It is a violation of state law to sell, use, deliver, or possess marijuana or cocaine. Section 893.13, Florida Statutes;
The negotiation of a sale of a controlled substance or the act of serving as a go-between in arranging such a drug transaction is a violation of Florida law, and a person committing any such acts is subject to conviction
under the criminal laws of Florida. State v. Dent 322 So.2d 543 (Fla. 1975); Nadjawski v., State, 371 So.2d 554 (Fla. 2nd DCA 1976); State v. Hubbard, 328 So.2d 543 (Fla. 2nd DCA 1976); Section 777.011, Florida Statutes.
The evidence presented at the hearing was sufficient to establish that the illegal drug transactions described in the Notice To Show Cause took place as alleged. The Petitioner proved that Respondent's employees, while both on and off duty, sold cocaine in the presence of the manager of the licensed premises. The Petitioner also proved that an employee possessed marijuana on the premises and in the presence of the manager of the premises.
Once it has been established that violations of the law occurred on the licensed premises by employees, or by patrons with knowledge of employees, a licensee may be held accountable for the violations if he was culpably responsible by reason of his own negligence, intentional wrong doing or lack of diligence. Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962). In Pauline v. Lee at 364, The Court stated that:
"The persistent and practiced manner with which the solicitations (for prostitution) described by the State's witnesses were made is sufficient to provide a factual inference leading to the conclusion that
such violations of law were either fostered, condoned or negligently overlooked by the licensee notwithstanding his absence from the premises on the dates in question."
The evidence in Pauline v. Lee consisted of five separate solicitations for prostitution by five different employees of the licensee.
The landmark case in this area of the law is Lash, Inc. v. State Department of Business Regulation, 411 So.2d 276 (Fla. 3rd DCA 1983). The operative facts before the court in the Lash case are described as follows at page 277 of the decision:
"The license revocation stemmed from narcotics violations on appellant's premises. The evidence established that on five occasions over a period of a week, undercover beverage agents purchased
controlled substances from two of appellant's employees."
At page 278 of its decision, the court in Lash applied the standard for revocation or suspension of a beverage license to the facts of that case:
"Under Section 561.29(1), where the unlawful activity is committed by the licensee's agent, simple negligence is sufficient for revocation. Admittedly, the courts have refused to uphold revocations when the evidence showed only that on one occasion the licensee's employees violated the laws, and that the licensee otherwise
took measures to comply with them. (Citations omitted). Where, however, the laws are
repeatedly and flagrantly violated by the employees, an inference arises leading to the conclusion that such violations were either fostered, condoned or negligently overlooked by the licensee, notwithstanding his absence from the premises where the violations occur. (Citations omitted.) Consequently, if the evidence supports the conclusion that the licensee failed to exercise ordinary care in the maintenance of the licensed premises or the supervisor of his employees, he can be found negligent and his license revoked. (Citations omitted).
Where the violations are, as here, committed in a persistent and recurring manner, consisting of more that one isolated incident, the courts have not hesitated to find that such violations were either fostered, condoned, or negligently overlooked by the licensee, even though he may have been
absent at the time of the commission of such. (Citations omitted). In the present case, the recurring sales were made possible by appellants failure to supervise the premises and his employees in a reasonably diligent manner, properly leading to the license revocation."
While it is unlikely that the courts have sought to enunciate a purely mathematical formula to be applied in these types of cases it is instructive to note that in Pauline v. Lee, five (5) violations occurred over a 3-day period; in Lash, there were five (5) violations within one (1) week; in G & B of Jacksonville, Inc. v. Department of Business Regulation, 371 So.2d 137 (Fla. 1st DCA 1979), three (3) violations occurred in one day; and, in Golden Dolphin No. 2, Inc. v. Division of Alcoholic Beverages and Tobacco, 403 So.2d 1372 (Fla. 5th DCA 1981), there were violations on "several" occasions. In the instant case, thirteen narcotic transactions took place over a period of approximately five
(5) weeks. The evidence concerning the narcotic transactions showed that the violations were flagrant, persistent and recurring. Accordingly, the violations established in this case are sufficient to give rise to the inferences discussed in Lash that the licensee negligently overlooked the violations or failed to exercise ordinary care in the maintenance of the licensed premises or the supervision of his employees. No evidence was presented by Respondent to show that he supervised his premises in a diligent manner.
Likewise, the Respondent is also culpably responsible for maintaining a nuisance on his licensed premises in violation of Sections 823.10 and 561.29(1)(c), Florida Statutes and, culpably responsible for maintaining a store or place which is used for keeping or selling controlled substances in violation of Chapter 893, Florida Statutes.
The evidence failed to show that the Respondent is culpably responsible for the incident of January 27, 1986 in which a female patron entered the premises and fondled a dog. Assuming arguendo that the female's conduct met all of the elements of disorderly conduct pursuant to Section 877.03, Florida Statutes, the courts have held that the licensee is not required
to be an absolute insurer against violations of law on the premises by employees or patrons. Therefore, where the evidence shows only a single, isolated violation of the law, the courts have refused to permit the inference of negligence, intentional wrongdoing or lack of diligence on the part of the licensee. See Jones v. Department of Business Regulation, 448 So.2d 1109 (Fla. 1st DCA 1984); Woodbury v. State Beverage Department, 219 So.2d 47 (Fla. 1st DCA 1969).
Based upon the foregoing findings of fact and conclusions of law, it is, therefore,
RECOMMENDED that a Final Order be issued revoking the alcoholic beverage license number 23-07334, series 2-COP, held by Respondent, Rene Tamer.
DONE and ORDERED this 22nd day of August, 1986 in Tallahassee, Leon County, Florida.
W. MATTHEW STEVENSON Hearing Officer
FILED with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1986.
Louisa E. Hargrett, Esquire Department of Professional
Mr. Rene Tamer El Emperador
Howard M. Rasmussen, Director Department of Business Regulation The Johns Building
725 S. Bronough Street Tallahassee, Florida 32301
The Johns Building 725 S. Bronough Street
Thomas A. Bell, Esquire General Counsel
725 S. Bronough Street Tallahassee, Florida 32301
