STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0502

)

QUINTO PATIO BAR, INC., d/b/a )

QUINTO PATIO BAR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on May 4, 1988, in Miami, Florida.

APPEARANCES

For Petitioner: Katherine A. Emrich, Esquire

Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Rene Valdes, qualified representative 1830 N.W. 7th Street

Miami, Florida 33125 PRELIMINARY STATEMENT

At issue in this proceeding is whether controlled substances were possessed, sold, or used on the licensed premises and, if so, whether respondent's alcoholic beverage license should be revoked or otherwise disciplined.

At hearing, petitioner called as witnesses: Diane Miller, Beverly Jenkins, Pedro Pidermann, and Orlando Huguet. Petitioner's exhibits 1-9 were received into evidence. Respondent called Dominga Lora as a witness, but offered no exhibits.

The hearing transcript was not ordered by the parties, and they were granted leave until May 16, 1988, to file proposed findings of fact. Petitioner elected to file proposed findings, and they have been adopted in substance in this recommended order.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Quinto Patio Bar, Inc., d/b/a Quinto Patio Bar, held alcoholic beverage license number 23-02231, series 2-COP, for the premises known as Quinto Patio Bar, 1552 West Flagler Street, Miami, Dade County, Florida.

   
   

2. In August 1987, a joint task force was formed consisting of police officers from Metropolitan Dade County and the City of Miami, as well as investigators of the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT) , to investigate narcotics complaints against numerous business establishments in Dade County. Among the businesses targeted was the licensed premises at issue in this case.

   
   

3. On August 27, 1987, DABT Investigator Oscar Huguet and City of Miami Investigator Pedro Pidermann, operating undercover, entered the licensed premises in furtherance of the aforesaid investigation. Accompanying Investigators Huguet and Pidermann was a confidential informant (CI), who would accompany them on subsequent visits. During the course of this visit, and three other visits that predated September 5, 1987, the investigators familiarized themselves with the licensed premises, and became acquainted with the employees and patrons of the bar.

   
   

4. On September 5, 1987, Investigators Huguet and Pidermann, in the company of the CI, returned to the licensed premises. Upon entering the premises, the investigators proceeded to play a game of pool and directed the CI to see if any drugs were available in the bar.

   
   

5. The CI walked to the bar, spoke with employee Maria, and accompanied her back to the pool table. At that time, Maria offered to sell the investigators a gram of cocaine for $50. Investigator Pidermann handed Maria a

   $50 bill, Maria removed a clear plastic packet of cocaine from her pants' pocket and handed it to the CI, and the CI handed it to Investigator Huguet. Huguet held the packet up to the light at eye level, and then commented that it "looks like good stuff." This transaction took place in plain view, and in the presence of several patrons.

   
   

6. On September 16, 1987, Investigator Huguet and the CI returned to the licensed premises and seated themselves at the bar. Huguet struck up a conversation with the barmaid Maria, and asked whether she had any cocaine for sale. Maria responded that the individual (later identified as Bandera) who brings in the "stuff" had not come in yet, but to come back the next day. Huguet told Maria he would return the next day and to reserve two grams for him.

   
   

7. On September 17, 1987, Investigator Huguet and the CI returned to the licensed premises to make the purchase of cocaine arranged the previous day. Upon entry, Maria told Huguet that the man (Bandera) who sold the cocaine had just left through the front door. Huguet gave the CI $100, and told him to follow the individual and make the purchase. These conversations occurred in the presence of Yolanda, another employee of the licensed premises.

   
   

8. After the purchase from Bandera, the CI returned to the bar and handed Investigator Huguet 4 clear plastic bags of cocaine. Huguet examined the bags at eye level and in the presence of Maria, and placed them in his shirt pocket.

   
   

9. On September 18, 1987, Investigators Huguet and Pidermann, together with the CI, returned to the licensed premises and began playing pool. A short

   time later Bandera entered the bar and, upon being motioned over by the CI, approached the investigators. Upon greeting Bandera, Huguet asked him how much cocaine $100 would buy. Bandera replied "two grams", whereupon Huguet borrowed

   $50 from Pidermann to which he added $50 from his pocket, and tried to hand it to Bandera. Bandera, who had not previously met the investigators, told him no, to meet him in the restroom.

   
   

10. Huguet met Bandera in the restroom, and purchased two grams of cocaine for $100. Upon exiting the restroom, Huguet observed Maria looking at him, held up the two clear plastic bags of cocaine, and mouthed the words "thank you" to her.

    
    

11. On September 24, 1987, Investigators Huguet and Pidermann, together with the CI, returned to the licensed premises. During the course of this visit, Bandera was observed seated at the bar conversing with Maria. Pidermann and the CI approached Bandera, and asked whether he had any cocaine for sale. Bandera responded yes, and invited Investigator Pidermann to the restroom to consummate the transaction.

    
    

12. Pidermann met Bandera in the restroom and purchased two grams of cocaine for $100. Upon exiting the restroom, Investigator Pidermann displayed the cocaine to Investigator Huguet and the CI above the bar. This display occurred in plain view and in the presence of several patrons.

    
    

13. On September 25, 1987, Investigators Huguet and Pidermann, together with the CI, returned to the licensed premises and proceeded to play pool. A short time later, Bandera entered the bar, approached the pool table, and placed two clear bags of cocaine on top of the pool table in front of Investigator Huguet. Huguet asked Bandera how much the cocaine would cost and he stated

    $100. Huguet gave Bandera the money, picked up the packets and held them at eye level for examination. This transaction took place in plain view, in the presence of numerous patrons, and was observed by employee Asucercion.

    
    

14. On October 2, 1987, Investigators Huguet and Pidermann returned to the licensed premise. During the course of this visit, Huguet engaged Maria in general conversation and inquired as to the whereabouts of Bandera. Maria advised Huguet that Bandera was probably at the Yambo Bar, and that if he wanted cocaine to see him there.

    
    

15. Investigator Huguet left the licensed premises and went to the Yambo Bar, located approximately one block away. There he met with Bandera and told him that he wanted to purchase cocaine but that Pidermann had the money at the Quinto Patio Bar. Bandera told Huguet he would meet him out back of the licensed premises.

    
    

16. Huguet returned to the Quinto Patio Bar and spoke with Investigator Pidermann in the presence of employee Asucercion. Huguet told Pidermann that for $100 Bandera would supply the cocaine. Pidermann gave Huguet the money, and Huguet went out back to purchase the cocaine from Bandera.

    
    

17. After the purchase from Bandera, Investigator Huguet returned to the bar and placed two clear plastic bags of cocaine on the bar counter in front of Investigator Pidermann and Asucercion. Pidermann picked up the cocaine, examined it, and placed it in his pocket.

    
    

18. On October 3, 1987, Investigators Huguet and Pidermann returned to the licensed premises and seated themselves at the bar. While the investigators

    were being served by Maria and an unidentified barmaid, Huguet inquired as to the whereabouts of Bandera. Maria replied that he was probably at the Yambo selling cocaine.

    
    

19. Investigator Huguet left the licensed premises, met Bandera at the Yambo Bar, and arranged the same drug deal they had made the previous day. Huguet returned to the Quinto Patio Bar and spoke with Investigator Pidermann in the presence of Maria. Huguet again told Pidermann that for $100 Bandera would supply the cocaine. Pidermann gave Huguet the money, and Huguet went out back to purchase the cocaine from Bandera.

    
    

20. After the purchase from Bandera, Investigator Huguet returned to the bar and seated himself next to Pidermann. In front of Maria and the unidentified bar maid, Huguet wrapped the two clear plastic bags of cocaine in a napkin and handed them to Pidermann.

    
    

21. All of the events summarized in the preceding paragraphs took place at the licensed premises during normal business hours. At no time did respondent's employees express concern about any of the drug transactions. In fact, the proof demonstrates that the employees knew that cocaine was being sold, delivered, or possessed on the licensed premises on a regular, frequent, and flagrant basis.

    
    

22. Ms. Dominga Lora (Lora), is the sole corporate officer of the licensee and owner of 100 percent of its stock. According to her, she is generally always on the licensed premises, and usually is seated at a small table by the pool table. Notwithstanding the fact that the lighting within the premises is good, Lora averred that she had no knowledge of any drug transactions on the premises and, in fact, doubted that any did occur. Lora's testimony is not credible.

    
    

23. The proof is clear and convincing that the drug transactions previously discussed did occur on the licensed premises, and that they occurred in an open manner visible to patrons and employees alike. If reasonably diligent, Lora had to observe that drug transactions were occurring on the licensed premises but failed to make any reasonable effort to prevent them. Under the circumstances, it is concluded that Lora knew such sales occurred or negligently overlooked them.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

25. Section 561.29(1), Florida Statutes, authorizes DABT to revoke or suspend a beverage license upon a showing of:

    
    

    1. Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises...of any of the laws of this state or of the United States...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....

       * * *

       (c) Maintaining a nuisance on the licensed premises.

       
       

26. Section 823.10, Florida Statutes, declares a place or building where controlled substances are illegally sold or delivered to be a public nuisance. Cocaine is a controlled substance. Section 893.03, Florida Statutes. It is a violation of state law, under the circumstances of this case, to sell, deliver, or possess cocaine. Section 893.13, Florida Statutes.

    
    

27. The proof is clear and convincing that patrons of the licensed premises possessed, sold, and delivered controlled substances on the licensed premises in violation of the law. In the instant case, the violations of law were so numerous and flagrant as to compel the conclusion that respondent fostered, condoned or negligently overlooked them. Lash, Inc. v. State, Department of Business Regulation, 411 So.2d 276 (Fla. 3d DCA 1982), and Pauline

v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962). Under such circumstances, the evidence supports the revocation of respondent's license.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a

final order revoking alcoholic beverage license number 23-02231, series 2-COP,

issued to Quinto Patio Bar, Inc., d/b/a Quinto Patio Bar, for the premises located at 1552 West Flagler Street, Miami, Florida.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of May, 1988.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1050

Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1988.

COPIES FURNISHED:

Katherine A. Emrich, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

Rene Valdes

1830 N.W. 7th Street Miami, Florida 33125

Daniel Bosanko, Director Department of Business Regulation Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32399-1000

Joseph A. Sole, Esquire General Counsel

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

Docket for Case No: 88-000502

Orders for Case No: 88-000502