DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
vs. ) CASE NO. 86-1343
Respondent. )
Pursuant to an emergency order of suspension and Notice to Show Cause a final hearing was held in this matter in Melbourne, Florida on April 25, 1986, before Stephen F. Dean, assigned a hearing officer of the Division of Administrative Hearings.
For Petitioner: Thomas A. Klein, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927
For Respondent: David W. Dyer, Esquire
The parties stipulated as to the identification of all drugs seized and purchased by the investigators.
Both parties have submitted posthearing proposed findings of fact. A ruling has been made on each proposed findings of fact in the Appendix to this Recommended Order.
At all times pertinent to the allegations in the Notice to Show Cause, the Respondent, Michael George Shlepr, d/b/a Eau Gallie Inn, was the holder of a valid Alcoholic Beverage License #15-1912, series 4-COP, issued by the Petitioner to the Respondent for the Eau Gallie Inn located at 1841 Avocado Avenue, Melbourne, Brevard County, Florida.
On January 22, 1986, Detective Bruce Triolo of the Melbourne Police Department ("MPD") entered the licensed premises as part of an undercover investigation of narcotics trafficking. Triolo was accompanied by a confidential informant who frequented the licensed premises and was well known by the patrons and employees of the licensed premises. During said evening, Triolo was approached by an individual known as Jerry Alden (and also referred to as "Jerry Holden" during the hearing), who asked Triolo if he wanted to buy marijuana. Triolo indicated he desired to purchase marijuana and thereafter met Alden in the parking lot of the licensed premises where Triolo purchased two bags of marijuana from Alden.
On January 23, 1986, Triolo again entered the licensed premises as part of an undercover investigation. Triolo and Alden negotiated the sale of marijuana inside the licensed premises and Triolo met Alden in the picnic area adjacent to the building (see diagram in Petitioner's Exhibit 1) where Triolo purchased marijuana from Alden. This picnic area was included in the diagram of the licensed premises and made a part thereof at the suggestion of an agency employee after the undercover investigation of the licensed premises had begun. This area is irregularly shaped and has at least one entrance to it which cannot be observed from inside the licensed premises.
On January 24, 1986, Triolo again entered the licensed premises as part of an undercover investigation. Triolo discussed purchasing marijuana from Alden. On this occasion, Alden asked the bartender, "Lynn," to hand him his jacket. Lynn brought Alden his jacket from a small office area behind the bar and gave it to Alden. Alden took a bag of marijuana from the jacket and delivered it to Triolo while they were sitting at the bar of the licensed premises.
On January 28, 1986, Triolo entered the licensed premises as part of an undercover investigation and spoke with the bartender identified as "Bruce." Triolo asked Bruce where he could find Alden and was advised that Alden "was around." Triolo asked Bruce about purchasing marijuana and Bruce offered to sell Triolo one marijuana cigarette. Bruce took $1.50 from Triolo's change that was on the bar as payment for the cigarette.
On January 31, 1986, Triolo entered the licensed premises as part of an undercover investigation. Triolo negotiated with Alden in the licensed premises the purchase of marijuana, which was delivered and paid for in the men's bathroom of the licensed premises by Alden. At that time, Alden asked Triolo if he was interested in purchasing any cocaine. Triolo said that he was and Alden left and returned in approximately 15 minutes. At that time, Alden met Triolo by the picnic table in the picnic area. Alden showed Triolo several cocaine rocks and sold Triolo one for $20.00. During the time that this transaction was taking place, the bartender, "Shawn," was standing at the back door of the licensed premises observing what was taking place in the picnic area.
On February 25, 1986, Triolo entered the licensed premises with Agent Richard White of the Division of Alcoholic Beverages and Tobacco as part of an undercover investigation. Triolo purchased a bag of marijuana from Alden while sitting at the bar. Shawn, who was the bartender, handed Alden the bag of marijuana from behind the bar and Alden delivered the bag to Triolo.
On February 26, 1986, Triolo entered the licensed premises as part of an undercover investigation. While there, he discussed the purchase of marijuana from "Marie," another patron. Marie delivered the marijuana to Triolo inside the licensed premises and Triolo passed the marijuana to White in the open while both men were sitting at the bar in the licensed premises.
As part of an undercover investigation, on March 7, 1986, Triolo entered the licensed premises where he negotiated the purchase of a bag of marijuana with Alden. Alden only had one bag and a white female patron had also indicated she wanted to purchase a bag of marijuana. Alden met with the white female and Triolo at the picnic table in the picnic area and split the bag of marijuana between the white female and Triolo. On the same night, a patron, Brian Riordon, sold and delivered cocaine to Triolo in the parking lot of the licensed premises.
On March 9, 1986, Triolo and White attended a party in the licensed premises for which they had purchased tickets as part of the continuing investigation. On this occasion, which was on a Sunday, Shlepr was present and served beer to Triolo and White at 11:57 a.m., contrary to Melbourne City Ordinance that prohibits the sale of alcoholic beverages prior to 1:00 p.m. on Sundays.
On March 13, 1986, White entered the licensed premises as part of an undercover investigation with Triolo. White engaged in wagering on a game of liar's poker with another patron, "Tim," at the bar in front of the bartender.
On March 14, 1986, Triolo entered the licensed premises and negotiated the purchase of marijuana with Alden. Triolo gave Alden $60.00; however, Alden returned and said he could not get the marijuana and gave Triolo his money back. The negotiations for the purchase took place in the licensed premises.
On March 15, 1986, White entered the licensed premises with Triolo as part of their investigation. White began playing pool for money with Alden and another patron. The bartender, Lynn, was present and observed their gambling.
On March 19, 1986, Triolo entered the licensed premises as part of an undercover investigation and discussed with Alden purchasing marijuana. Alden advised Triolo that "the marijuana was on its way over." In a short while, a white male patron, Dennis Thorp, arrived and delivered the marijuana to Alden, who in turn delivered it to Triolo. Subsequently, on March 19, 1986, Alden sold a stolen outboard motor to Triolo at an apartment in the vicinity of the licensed premises. The negotiations for the purchase of the stolen outboard motor took place on the licensed premises.
On March 20, 1986, Triolo entered the licensed premises with White as part of an undercover investigation. Alden, with Dennis Thorp, sold and delivered marijuana to Triolo on the licensed premises. White engaged in a pool game with Alden for money on the same evening.
As part of the continuing investigation, on March 26, 1986, Triolo entered the licensed premises where he discussed the purchase of marijuana with
Alden. He subsequently drove Alden to a house in Melbourne which Alden entered and returned with several bags of marijuana. Alden explained that he had more orders for marijuana than he had bags of marijuana. As a result, the potential purchasers, to include Triolo, met with Alden at the picnic table in the picnic area at the Eau Gallie Inn where the bags were split. Triolo received part of a bag in return for driving Alden to pick up the drug.
On April 1, 1986, Triolo entered the licensed premises as part of the ongoing investigation and discussed the purchase of marijuana with Alden. Alden sold and delivered marijuana to Triolo on the licensed premises. Subsequently, Alden approached Triolo with another white male, identified as "Ted" and discussed with Triolo the purchase of cocaine. Triolo gave money to Ted, and Ted and Shawn, a bartender at the Eau Gallie Inn, left the licensed premises together and returned with cocaine. Ted delivered cocaine to Triolo on the licensed premises. No evidence was received that Shawn was on duty the night in question.
On April 3, 1986, Triolo entered the licensed premises as part of the continuing investigation. On this occasion he negotiated the purchase of marijuana from Alden and Thorp and cocaine from Alden and Ted on the premises. The cocaine was delivered in the picnic area. Evidence was not clear on where the marijuana was delivered.
On April 4, 1986, Triolo entered the licensed premises as part of the continuing investigation. A patron, Mark Harrold, injected himself with drugs in the bathroom of the licensed premises while Detective Triolo guarded the door.
On April 5, 1986, Triolo and White entered the licensed premises as part of the continuing investigation and spoke with Alden. A purchase of marijuana was negotiated and money was delivered by Triolo to Alden; however, when Alden returned with the marijuana, he had less marijuana than potential purchasers. Alden went into the kitchen area behind the bar where he split a bag and delivered half to Bruce, the bartender on duty, and half to Triolo. Alden approached White on the premises about purchasing a Colt revolver which Alden represented had been stolen.
On April 9, 1986, Triolo entered the licensed premises as part of the continuing investigation. On this occasion, Alden delivered to Agent White in Triolo's presence, cocaine which White held up to the light and examined while standing at the pool table in the licensed premises. On said night, no marijuana was available for purchase; however, a number of people were in the picnic area smoking marijuana and free-basing cocaine. Also on April 9, 1986, Alden approached Triolo about purchasing some amphetamines. Alden left the premises and when he returned, sold to Triolo a substance represented to be amphetamines. However, upon analysis it was determined to be a caffeine derivative. Alden collaborated in this transaction with a patron known as "Doc Holliday."
On the night of April 11/12, 1986, Agent White entered the licensed premises as part of the investigation. He discussed purchase of marijuana with Alden, who left the premises and returned after midnight. Alden delivered marijuana to White in the men's room. Shawn the bartender was in the toilet, came out, and saw Alden and White concluding the purchase of the drugs. Shawn asked if Alden would have a bag left which he could purchase.
On April 15, 1986, Agent White brought up marijuana with the licensee, Shlepr, who was tending bar. Shlepr told White to put the marijuana back in his pocket; that he did not want to see it in the licensed premises.
On April 16, 1986, Alden sold and delivered cocaine to Triolo on the licensed premises.
Conflicting testimony was received concerning the status of Alden as an employee. The records of the licensed premises do not reflect Alden was an employee; however, the records of at least one other employee were also demonstrated to be incomplete or inaccurate. The licensee, Shlepr, testified that Alden was not an employee but was a regular patron who voluntarily would do helpful things around the licensed premises on occasion. Shlepr gave Alden free drinks on occasion in recognition of Alden's patronage and help. Triolo and White observed Alden on occasion taking beer from the stock room to the bar, clearing tables, and in one instance going next door to get Shlepr change. Triolo and White also observed that Alden had easy access to the area behind the bar, the small office behind the bar, the telephone, and cash register. Testimony was also received that during a portion of the investigation, Alden was dating one of the regular barmaids. Another of the regular bartenders testified Alden was not an employee. Based upon the most credible evidence, it is found Alden was not an employee; however, Alden was clearly permitted too much freedom in the licensed premises.
The licensee, Shlepr, worked full-time on the evening shift at a local business in Melbourne at all times relevant to this complaint. He was on the premises from noon until the commencement of his shift and returned to the licensed premises after he got off work to close the licensed premises. He did not have a manager on the premises and the only employee present when Shlepr was not there was the bartender. The bartenders were given great freedom; one going so far as giving away drinks. The only two allegations which Shlepr could have observed or participated in were when Shlepr served the investigators beer on Sunday, March 9, and when White showed Shlepr marijuana on April 15. There is no allegation Shlepr had knowledge of the other incidents. Gary Michael Gordon was a substitute bartender during the period of the investigation at the Eau Gallie Inn, during which time and unto the present he was the Respondent's roommate.
The identification of all the drugs mentioned above is accurate.
There have been no previous disciplinary actions against this licensee.
No evidence was introduced in support of counts 24 and 32.
Respondent had no direct knowledge of the drug trafficking and gambling.
CONCLUSIONS OF LAW
The Division of Alcoholic Beverages and Tobacco may discipline the Respondent pursuant to Section 561.29, Florida Statutes. This Recommended Order is entered pursuant to Section 120.57(1), Florida Statutes.
The Division of Alcoholic Beverages and Tobacco charges the Respondent with violation of Section 561.29(1)(a) and Section 561.29(1)(c), Florida Statutes, which provide as follows:
Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws
of this state or of the United States, 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 this 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.
Concerning the allegations of violation of Section 561.29(1)(c), Florida Statutes, the facts reveal the following:
Shlepr personally served beer on Sunday before 1:00 p.m. on the licensed premises, contrary to local ordinance.
Several of the regular bartenders engaged in the use or sale of controlled substances contrary to Chapter 893, Florida Statutes, on the licensed premises.
Shlepr personally was aware of the possession of a controlled substance by a patron on the premises, contrary to Chapter 893, Florida Statutes, and did not eject the patron from the premises.
The Respondent was responsible for his own acts and those of his agents. The Respondent was in violation of Section 561.29(1)(c), Florida Statutes, by the preceding conduct.
Regarding the allegations of violating Section 561.29(1)(a), Florida Statutes, the evidence demonstrates that there were multiple incidents of drug trafficking, open displays of drug possession, open gambling or dice and pool games, and open use of drugs on or in the direct vicinity of the premises. The bartenders knew and, in some instances, participated in this conduct which is illegal and contrary to state law. Given the extent and duration of these activities, it is concluded Shlepr knew or should have known about these activities. Shlepr cannot avoid his responsibilities as the licensee by not being present on the premises and the reoccurring sales of controlled substances made possible by the licensee's failure to supervise the premises and his employees in a reasonable, diligent manner form a basis for disciplinary action. See Pauline v. Lee, 147 So.2d 359 (Fla. 2 DCA 1962); G and B of Jacksonville, Inc. v. State of Florida, Department of Business Regulation, Division of
Beverage, So.2d 139 (Fla. 1 DCA 1979); Harvey v. Division of Alcoholic Beverages and Tobacco, 451 So.2d 1065 (Fla. 5 DCA 1984).
It is therefore concluded that the Respondent's conduct constitutes a simultaneous violation of both Sections 561.29(1)(a) and 561.29(1)(c), Florida Statutes.
In mitigation there were no arrests for drug offenses on the premises during the investigation; the Respondent was not advised by the authorities and had no way of knowing that this trafficking was taking place. The primary participant, Alden, was not an employee as originally suspected. The Respondent had demonstrated ability to maintain order and had barred persons arrested for fighting on the premises. When the Respondent was present, there were no illegal activities conducted where he could see them, according to the investigators, with the exception of Agent White's display of marijuana. The Respondent acted with strong disapproval of White's action on the licensed premises. Respondent's participation in serving alcoholic beverages contrary to city ordinance arose out of a private party at the licensed premises and involved a technicality of the law relating to the sale of tickets to the party.
Considering the fact that the violations of Sections 561.29(1)(a) and (c), Florida Statutes, arise primarily from acts of omission and not commission, and that only very minor and technical violations were attributable to the Respondent personally, it is recommended that the Respondent's license be suspended for six months; that he be fined $1,000; and that his presence or the presence of a responsible manager on the premises be required as a condition for continued operation.
DONE AND ORDERED this 28th day of May 1986 in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN
FILED with the Clerk of the Division of Administrative Hearings this 28th day of May 1986.
APPENDIX TO RECOMMENDED ORDER CASE NO. 86-1343
The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties. Both Petitioner and Respondent filed proposed findings of fact in this case. These proposed findings were read, considered, and adopted unless the proposed finding was rejected for the reason stated.
(NOTE: Petitioner's Proposed Findings of Fact contains two paragraphs numbered "3"; the paragraphs are herein referred to as Page 2, Paragraph 3, or Page 3, Paragraph 3. All other paragraphs in Petitioner's findings are referred to by their indicated number.
25.
Paragraph 3 Adopted in paragraph 3.
fact, this proposal is rejected. The facts surrounding the individual incidents are clear enough to permit the hearing officer to conclude that the Respondent knew or should have known about the conduct and was negligent in his supervision.
Respondent's repeated proposal that there was no evidence that Respondent had knowledge of the incidents is modified and adopted in paragraphs 29 and 30.
Mr. Howard M. Rasmussen Director
Mr. James Kearny Secretary
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927
Thomas A. Bell, Esquire General Counsel
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927
Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927
David W. Dyer, Esquire Post Office Box 3648
