DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
vs. ) CASE NO. 87-4481
Respondent. )
Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, James E. Bradwell, held a hearing in this cause in Miami, Florida, on October 16, 1987. The parties submitted post-hearing memoranda which were considered by me in preparation of this Recommended Order. 1/
For Petitioner: Katherine A. Emrich, Esquire
On October 8, 1987, Petitioner, Division of Alcoholic Beverages and Tobacco (DABT), entered an Emergency Order of Suspension against Respondent's alcoholic beverage license because of alleged misconduct outlined therein. The same date, Petitioner entered a Notice to Show Cause against Respondent in which the same alleged misconduct was outlined and in which Respondent was directed to show cause why the pertinent alcoholic beverage license should not be revoked or otherwise disciplined. The Respondent requested a hearing before the Division of Administrative Hearings and the file was forwarded to the Director of the Division of Administrative Hearings for appointment of a Hearing Officer.
At the hearing, Petitioner presented the testimony of Orlando Huguet, an officer with DABT's investigatory branch, and introduced one exhibit.
Respondent presented the testimony of the licensee, Jose Manuel Acosta, and introduced six exhibits. The parties stipulated to the testimony of Sgt.
Beverly Jenkins, DABT, regarding the chain of custody and stipulated that all the drugs included in the Notice to Show Cause had been analyzed to be cocaine.
The issue for consideration is whether Respondent's alcoholic beverage license should be disciplined because of the alleged misconduct outlined in the Notice to Show Cause filed by Petitioner.
At all times pertinent to the allegations contained herein, Respondent, Jose Manuel Acosta, was doing business at 425 Northwest 12th Avenue, Miami, Dade County, Florida, as La Romanita Cafeteria under a series 2-COP alcoholic beverage license number 23-03308.
Orlando Huguet is an investigator with the Petitioner, DABT, and has had prior experience with the Coral Gables Police Department and as an investigator with the United States Air Force. During the course of his employment with the DABT, he has been involved in several undercover operations and is fully familiar with the appearance and properties of crack (rock) cocaine. He is also aware that it is a very addictive drug and that it is usually packaged in small cellophane bags but may come in other containers or not be packaged at all.
During the period of mid-August to mid-October, 1987, Mr. Huguet, along with other law enforcement investigators (LEI) of DABT and agents with the Metropolitan Dade County Sheriff's Department and the Miami Police Department were involved in an undercover investigation of Respondent's place of business as part of an investigation of drugs in bars in Dade County. During the investigation, they would enter the premises in the afternoon or evening and attempt to purchase crack cocaine from the licensee, employees or patrons of the establishment. La Romanita's is primarily frequented by Spanish speaking customers.
On August 28, 1987, Huguet entered La Romanita in an undercover capacity in the evening along with a confidential informant (CI). This confidential informant was utilized by Huguet in several undercover investigations. Huguet and the CI took seats at the bar counter and ordered drinks. Huguet observed the licensee, Jose Manuel Acosta, standing in front of him, behind the counter. Huguet overheard the CI ask Acosta if he (Acosta) had any drugs for sale today. Acosta commented that he had run out of drugs, but to try him tomorrow. Acosta continued to discuss drugs with Huguet, the CI, and other patrons. Subsequently, a black Latin male named Miguel approached Huguet and the CI and inquired if they were looking for drugs. Later on Huguet purchased cocaine ("perico" in Spanish) from Miguel outside the licensed premises.
On August 29, 1987, at approximately 11:30 p.m., Huguet and the CI entered the licensed premises and observed the owner, Jose Manuel Acosta, sitting drown at a table with another man identified as Flaco. Huguet and the CI engaged Acosta in conversation which revealed that Acosta would provide one- half ounce of cocaine to the CI and Huguet at a future date. Subsequently, Huguet and the CI left the premises.
On September 3, 1987, Huguet and the CI entered the establishment in the evening and approached the bar counter area and engaged in general
conversation with a barmaid. Huguet observed a white Latin male, Tobacito, walk to the end of the bar counter, open a brown paper bag, and retrieve two pieces of suspected crack cocaine. Tobacito gave the suspected cocaine to a white Latin male in an open manner and the white Latin male gave Tobacito $20.00.
Subsequently, Huguet instructed the CI to try to make a drug purchase from Tobacito. The CI approached Tobacito who reached into the same brown paper bag and took two pieces of rock ("piedra" in Spanish) cocaine and gave them to the CI in exchange for $20.00. Huguet witnessed this entire transaction and took the cocaine from the CI immediately after the drug transaction.
Tobacito approached the table where Huguet and the CI were sitting, which is located on the east side of the premises. Tobacito negotiated a drug transaction with Huguet for $10.00 and then left the licensed premises, returning shortly thereafter with the cocaine. When Huguet received the piece of crack cocaine from Tobacito, he held it up to eye level, examined it, and then placed it in his front pocket.
A short time later Huguet walked over to the bar counter, took a seat next to a patron named Warapito, and engaged in a general conversation about drugs. Warapito bragged that he sold the best rocks in town and stated they would enhance Huguet's sexual performance. During this conversation, Huguet retrieved the rock cocaine he had previously purchased and dropped it on the floor in front of several patrons. Warapito and another patron retrieved the cocaine and returned it to Huguet. This incident was observed by an employee, Papo, who is the son of the licensee, Jose Manuel Acosta. Thereafter, Tobacito came over to Huguet and Warapito and began to argue with Warapito over who sold the best rock cocaine. This conversation took place in front of several patrons and Papo.
On September 4, 1987, Huguet entered La Romanita in the early afternoon and took a seat at one of the tables on the east side of the premises. Huguet engaged in conversation with an employee, Pepito, relative to cocaine. Pepito stated that he could get one-half ounce, but that he would have to make a phone call first since it was not on the premises. During this time, Huguet noted that Pepito did the duties and functions of an employee (serving patrons, working behind the counter, using the cash register and taking orders). Pepito proceeded to make the phone call and a short time later the licensee, Jose Manuel Acosta, entered the licensed premises carrying a large box which he gave to Pepito who took the box to the storage room. Within seconds Pepito exited the storage room, came to Huguet's table and handed him a baggie of cocaine wrapped in toilet paper. Huguet put the baggie on the table and unwrapped it to conf irm that it was cocaine. Huguet rewrapped the baggie, placed it in his right front pocket and handed Pepito $320.00. During this entire transaction, Huguet observed the licensee go by his table several times.
On September 16, 1987, Huguet entered La Romanita at approximately 9:20 p.m. and observed that there were several patrons and two Latin female employees on duty. Huguet took a seat at a table located in the southeast area of the licensed premises and engaged in conversation with patron Tobacito. Huguet and Tobacito negotiated a cocaine transaction and Huguet gave $20.00 to Tobacito who exited the licensed premises, returning a short time later. Tobacito gave the crack cocaine to Huguet who held it up to eye level to examine. At this point, a patron, Jacquin, who was sitting at an adjacent table, offered Huguet a piece of aluminum foil in which to wrap the crack cocaine. Huguet took the foil from Jacquin and wrapped it around the cocaine. This transaction was observed by several patrons, as well as the two female employees.
On September 18, 1987, Huguet entered the licensed premises and took a seat at the bar counter where he struck up a conversation with patron Tobacito. Tobacito asked Huguet if he wanted anything and Huguet responded that he was willing to purchase some cocaine. Tobacito stated that he had only one piece of crack cocaine left, but was willing to sell it for $20.00. Huguet agreed and Tobacito then left the licensed premises. Huguet approached Warapito and engaged in general conversation about cocaine. Warapito took a small piece of rock cocaine from his pocket and offered it to Huguet for $22.00. Huguet gave Warapito the $22.00 and in return received the rock cocaine. This transaction was observed by employee, Isabel, who had been waiting on the two patrons. Huguet noted that Isabel performed the functions and duties of an employee (waiting on customers, working behind the counter and using the cash register). A short time later Tobacito entered the licensed premises and handed Huguet a piece of rock cocaine. Huguet placed the cocaine on top of the bar counter and proceeded to examine it in plain view of employee Isabel. Huguet then placed the cocaine in a napkin, put it in his right front pocket, and paid Tobacito
$20.00.
On September 24, 1987, Huguet entered La Romanita and took a seat at the bar counter. Warapito approached Huguet and asked if he needed any rocks (cocaine). Huguet stated that he did and gave Warapito $20.00. This conversation took place in front of employee, Papo. Papo proceeded to leave the bar counter area, enter the women's restroom and lock the door. Another employee, identified as Chino, noted Papo's actions and advised Huguet that if Huguet ever wanted to "shoot up, snort up, or smoke up," that Chino would let him have the key to the women's bathroom. Huguet noted that Chino performed the duties and responsibilities of an employee (serving customers, working behind the counter and using the cash register). A short time later, Warapito reentered La Romanita and gave Huguet a large piece of rock cocaine. Huguet placed the cocaine on top of the bar counter, examined it, and proceeded to wrap it in a napkin in front of employees Chino and Alisa. Huguet stated that Alisa also performed the duties of an employee (waiting on customers, working behind the counter and using the cash register).
Tobacito subsequently approached Huguet and handed him two pieces of rock cocaine which Huguet placed on top the bar counter and examined. He then wrapped the cocaine in a napkin. Alisa and Chino were in a position to observe this transaction as well. A short time later, Warapito and Tobacito began to argue over who sold the better rock cocaine. A few minutes later Huguet paid Tobacito $20.00 for the cocaine he had received and exited the licensed premises.
On September 29, 1987, Huguet entered La Romanita and approached Tobacito who was sitting on a bar stool next to the counter. Tobacito told Huguet that he was sorry but that he had run out of rocks (cocaine). Huguet then called Warapito over to where he was sitting and asked him if he had any drugs. Warapito replied that he could get Huguet cocaine but would need $30.00 up front. Thereupon, Huguet handed him the money and Warapito exited the premises. This conversation took place in front of several patrons and an employee, Papo, who was standing behind the counter making change from the cash register. A short time later, Warapito entered La Romanita and handed Huguet two pieces of rock cocaine. Huguet took the cocaine, held it up to eye level to examine in front of several patrons and an employee, Chino, and then placed the cocaine in a napkin he had retrieved from the counter.
On September 30, 1987, Huguet entered the premises and met with Warapito. Warapito offered to sell Huguet one gram of cocaine for $50.00 but stated that he would need the money up front. Huguet gave Warapito the money whereupon Warapito exited the premises. A short time later Huguet approached the bar counter and took a seat next to Tobacito. Tobacito advised Huguet that if he (Huguet) wanted any drugs that he (Tobacito) had two pieces of rock cocaine left and would sell them for $20.00. Huguet agreed to buy the cocaine whereupon Tobacito exited the premises. A short time later, Tobacito returned and presented the cocaine to Huguet in front of employees Alisa and Chino. Huguet took the two pieces of rock cocaine, examined them and made the comment that they were very dirty. Tobacito exclaimed that he had dropped the cocaine on the way back to La Romanita because he had been frightened when he had observed police officers nearby. Huguet then paid Tobacito the $20.00. A short time later, Warapito returned to the premises and stated that he had been unable to find any cocaine and returned the $50.00 to Huguet.
On October 1, 1987, Huguet entered La Romanita and proceeded to the juke box area of the premises to have a conversation with Warapito. Warapito advised Huguet that he would try to obtain one gram of cocaine for him for
$50.00. Huguet and Warapito discussed the drug purchase in further detail. Standing next to Huguet and Warapito was Jose Manuel Acosta, the licensee, who was in a position to hear the conversation. Subsequently, Warapito told Huguet that he thought he was a police officer. Huguet denied this allegation and then departed the licensed premises.
On October 6, 1987, at approximately 12:15 p.m., Huguet entered La Romanita and approached Tobacito and Warapito at the bar where they were talking to employee Papo. Tobacito asked what Huguet wanted and Huguet responded that "twenty" would do. Huguet gave Tobacito the money and Tobacito exited the premises. Warapito subsequently told Huguet that he (Warapito) was going to secure a half gram for a friend of his and asked if Huguet wanted any cocaine as well. Huguet replied that he would like one gram and gave Warapito $50.00.
A short time later, Tobacito reentered La Romanita and handed Huguet two rocks of cocaine in front of Papo. Huguet examined the cocaine at eye level, took a napkin from the bar counter and wrapped up the cocaine. A few minutes later, Warapito reentered La Romanita and gave Huguet back his money stating that he had been unable to locate any cocaine.
All of the events referred to herein, with the exception of the drug purchase on August 28, 1987, took place on the licensed premises during business hours when other employees and patrons were present on the licensed premises. None of the employees or patrons who sold or delivered cocaine to Officer Huguet, or allowed others to do so, ever expressed any concern about any of the drug transactions and took no action to prevent or discourage drug transactions.
The licensee, Jose Manuel Acosta, stated that he was neither present during most of the dates set out in the Notice to Show Cause nor did he hear or observe any drug transaction. He denied ever meeting or speaking with Officer Orlando Huguet about any cocaine transactions. He knew that drugs were easily obtainable in the area of town in which La Romanita was located, but did not believe that he had any drug problems on his premises.
In light of the detailed testimony of Officer Huguet, which was recorded in his report, stating he and the CI spoke with Mr. Acosta on two occasions about purchasing cocaine and that on one other occasion Mr. Acosta was in a position to observe a cocaine transaction, Mr. Acosta's statements are not credible.
Mr. Acosta did not perform polygraph examinations or background checks on his employees and did not use a security guard on the licensed premises. The premises contained no signs or other form of documentation revealing to patrons the policy of the management relative to drug possession, sale or usage. Instead, the only sign on the licensed premises stated that customers should not detain themselves if they were not going to consume.
Mr. Acosta denied that Pepito, Isabel or Chino were his employees. Instead, he stated that he employed his wife, his son Papo, other relatives and occasionally people to help him lift things on his licensed premises. He did admit that Alisa was his employee for several weeks. His only policy concerning drugs was to tell his employees that it was illegal and to call "911" if there was a problem. He noted that he had received letters from the Division of Alcoholic Beverages and Tobacco but did not read them because he did not know English.
At all times material to this case, Papo, Pepito, Isabel, Chino and Alisa were employees on the licensed premises of La Romanita. They performed the functions and duties of employees in that they served customers, worked behind the counter, waited on tables and used the cash register.
The great majority of drug transactions related herein took place in plain view on the licensed premises of La Romanita. The exchanges of drugs and money in conjunction with the open conversations engaged in by employees, patrons and Officer Huguet demonstrated a persistent pattern of open and flagrant drug activity. The instances occurring at La Romanita were sufficiently open to put a reasonably diligent licensee on express notice that drug sales were occurring on the licensed premises.
CONCLUSIONS OF LAW
Based on the foregoing findings of fact, factual conclusions, and the applicable principles of law, I make the following conclusions of law:
The Division of Administrative Hearings has jurisdiction over the subject matter of and parties to this proceeding pursuant to Section 120.57(1), Florida Statutes.
Section 561.29, Florida Statutes (1985), provides in pertinent part:
The Division 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 premises, 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 another on the licensed premises to violate any of the laws of this state or of the United States, . . . .
* * *
(c) Maintaining a nuisance on the licensed premises.
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, 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.
Cocaine is a controlled substance. It is a violation of state law to sell, use, deliver, or possess cocaine. Section 893.13, Florida Statutes.
The testimony and evidence presented at the hearing clearly establishes that the Respondent, through the actions of his employees, Papo, Pepito, Alisa, Isabel, and Chino, maintained the licensed premises as a place resorted to by persons using controlled substances for the purpose of using them and which was used for the keeping and selling of controlled substances.
Cocaine is a controlled substance under Florida law and it is unlawful for any person to keep or maintain any place which is resorted to by persons using controlled substances under Section 893.13(2)(a)5, Florida Statutes.
Consequently, Respondent engaged in conduct within the purview of Subsection 893.13(2)(a)5, Florida Statutes, as is alleged in paragraph 4 of the Notice to Show Cause.
Likewise, Section 561.29(1)(c), Florida Statutes, authorizes the discipline of a license if the licensee maintains a nuisance on the licensed premises. The testimony of Officer Huguet established that drug activity consisting of the sale, delivery or transfer of controlled substances (cocaine) took place on the premises regularly as is outlined in the specific subparagraphs of Counts 1, 2 and 3 of the Notice to Show Cause. This renders the licensed premises a public nuisance in violation of Section 823.10, Florida Statutes.
Section 561.29, Florida Statutes, authorizes the discipline of a license when the license holder is shown to have, either himself or through his employees, possessed, sold or delivered controlled substances on the licensed premises. Here, the testimony of Officer Huguet again clearly indicates that an employee of the licensee, Pepito, sold cocaine to Officer Huguet on the licensed premises.
Similarly, the testimony of Officer Huguet clearly establishes that during the time in question, the licensee, through his employees Papo, Alisa,
Chino and Isabel, permitted patrons of the establishment to sell or deliver cocaine to Investigator Huguet. Such activity subjects the license holder to discipline under Section 561.29(1)(a), Florida Statutes.
Competent and substantial evidence was offered to establish that the transactions took place on the premises and that the employees of the licensee were involved in the activity. While Respondent contends that he had no knowledge of what was going on within the licensed facility, and that if any illegal activity occurred it must have taken place when the licensee was not present, his testimony in that regard is not credible. Respondent is charged with taking steps to know what takes place on she licensed premises. Since the evidence established that the employees, agents or servants of the licensee were engaged in criminal activities on the licensed premises and permitted the licensed premises to be resorted to by persons using, keeping or selling controlled substances, well established legal principles make Respondent responsible for such violations. Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962). In Lash, Inc. v. State Department of Business Regulation, 411 So.2d 276, at page 278, (Fla. 3rd DCA 1983), the court set forth the following standards:
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 employees, an inference arises leading to the conclusion that such violations are either fostered, condoned or negligently overlooked by the licensee, notwithstanding his absence from the premises when 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 to the supervision 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 than one isolated incident, the courts have not hesitated to find that such violations are 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 appellant's failure to
supervise the premises and his employees in a reasonably diligent manner, properly leading to the license revocation.
In Lash, supra, five narcotic transactions took place over a period of a week. In the instant case, eleven narcotic transactions took place over a period of approximately one and one-half months. Accordingly, the evidence in this case establishes a prima facie case which will support a factual inference that the Respondent fostered, condoned, or negligently overlooked the violations occurring on his premises. No evidence was presented by Respondent to show that he supervised his premises in a diligent manner.
The violations proved are greater in number than those proved in Lash and occurred over a greater period of time. Accordingly, where the unlawful activity is more persistent and recurring than in the Lash case, the appropriate penalty should be no less than that imposed in the Lash case, absent some convincing evidence tending to prove that the unlawful activities took place in spite of the licensee's exercise of due diligence to detect and prevent it. There is no such evidence in this case. Cf., Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985).
A licensee, has the obligation to be aware of the activities that occur on his premises such that he knows, at least generally, what his employees are doing. His failure to do so constitutes a lack of reasonable diligence and a failure of proper management. G and B of Jacksonville, Inc. v. State Department of Business Regulation, 371 So.2d 138 (Fla. 1st DCA 1979).
It is clear, therefore, that prohibited activity repeatedly took place on the licensed premises and that the licensee was either unwilling or unable to manage the premises sufficiently to curb this illegal activity. Inability of the licensee to take effective preventive action, especially in light of the total lack of evidence that any reasonable effort was made, is not an excuse.
As a result, discipline of the license is indicated.
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the alcoholic beverage license held by Respondent, Jose
Manuel Acosta, No. 23-03308, series 2-COP, be REVOKED.
RECOMMENDED this 4th day of February, 1988, in Tallahassee, Leon County, Florida.
JAMES E. BRADWELL
Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1988.
1/ Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix attached hereto.
Katherine A. Emrich, Esquire Department of Business Regulation The Johns Building
Van B. Poole, Secretary Department of Business Regulation The Johns Building
Joseph A. Sole, Esquire General Counsel
