vs. ) CASE NO. 90-6948
) ROBERT A. AND GERALDINE GEDDES, ) d/b/a CRYSTAL BAR, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case, on November 7, 1990, at Tampa, Florida.
For Petitioner: Robin L. Suarez, Esquire
Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007
For Respondent: Peter P. Murnaghan, Esquire
Whether Respondent violated various provisions of Beverage Law and, if so, what disciplinary action against the licensee is appropriate.
By Emergency Order of Suspension dated October 26, 1990, the license of Robert A. and Geraldine Geddes, d/b/a Crystal Bar, Respondent, was suspended; and Respondents were notified of their right to challenge the emergency suspension by reguesting an administrative hearing. The emergency order of suspension was based upon a Notice to Show Cause also dated October 26, 1990, and Respondents requested a hearing to challenge the allegations made in the Notice to Show Cause. Essentially, the Notice to Show Cause alleges, in 15 counts, sale of controlled substances by patrons of the Crystal Bar to Respondent's undercover agents which was sufficiently open and notorious to constitute a public nuisance.
At the hearing, Petitioner called 4 witnesses, Respondent called 9 witnesses and one exhibit was admitted into evidence. At the hearing, Respondent stipulated that it was licensed as alleged and would not dispute the fact that patrons of the bar had sold controlled substances to the undercover investigators as alleged.
Proposed findings have been submitted by the parties. Treatment accorded those proposed findings is contained in the Appendix attached here and made a part hereof.
Based upon the demeanor and candor of the witnesses and considering all evidence presented, the following is submitted.
Robert A. and Geraldine Geddes, d/b/a Crystal Bar, hold beverage license number 61-00040, Series 4-COP and have held this license for 36 years.
Although the licensees still actively supervise the overall operation of the bar and are at the bar on a daily basis, their visits are usually during daylight hours and Robert Geddes usually departs the bar around 7 P.M.. In 1980, active supervision of the bar was turned over to Kurt Geddes, the son of the licensees.
Kurt Geddes is the manager of the bar, does the hiring and firing, is on the premises when a shift of bartenders occurs, but normally leaves the bar around 8 or 9 P.M.. Sometimes he remains on the premises until closing time (2 a.m.), but that is rare. In the absence of Kurt Geddes, the barmaid is in charge. On Saturday night and other "big nights" two barmaids are on duty; and on other nights only one barmaid is on duty. Kurt Geddes spends approximately 60 hours per week at the bar.
Crystal Bar is considered by many patrons to be a family bar, frequented by both younger patrons and middle-aged patrons. The latter frequently come in around 6 p.m. and usually leave by 9 p.m., but occasionally remain until 11 p.m.
During the period from early September 1990 through mid-October 1990, Petitioner conducted investigations in several bars in Pasco County, including the Crystal Bar. Undercover investigators Randy West, Anthony Drinkwater, Betty Warner and Jeanine Williams visited the Crystal Bar on divers occasions during this period, and on several occasions purchased cocaine and/or marijuana.
Anthony Drinkwater was in the Crystal Bar several times in September and October. During these times, he witnessed no drug transactions on the premises or outside the premises.
Randy West was present on the licensed premises September 9, 10, 11 and seven other times during the investigation. Normally he was accompanied by a confidential informant, and agent Drinkwater. On September 11, the confidential informant, who had engaged a patron of the bar in conversation, advised West that the patron had marijuana to sell. West approached the patron, Michael Clayburger, and exited the bar with Clayburger from whom he purchased marijuana in the parking lot outside the bar. During the times West was in the licensed premises, he saw no employee involved in any drug transaction, nor could he purchase marijuana papers from any employee or obtain from the employee a source from whom such rolling paper could be acquired.
Jeanine Williams, the youngest of the Department's investigators, was involved in the most purchases. She first entered the bar on September 8, 1990, with Betty Warner, who has been an investigator with Petitioner for approximately ten years. On September 10, 1990, Williams witnessed the purchase of marijuana by agent West outside the bar.
On September 11, 1990, Williams engaged in conversation with a patron "Dennis" and inquired about the purchase of crack. After making several phone calls, Dennis told Williams he could get crack for her, and she gave him $20. Whereupon, he left the bar and did not return. Another female patron who had observed the transaction between Dennis and Williams returned to the bar and told Williams she had been ripped off.
On September 13, 1990, while in the bar, Williams engaged in conversation with Donnie, a steady patron of the bar who also, on occasion, brought up ice and beer to stock the coolers for the barmaids. During this time, they discussed a 50 pound marijuana deal Donnie was contemplating, and Williams overhead several patrons ask Donnie for a joint.
On September 14, 1990, while in the bar, Williams was told by Donnie that he had given someone $500 for one-half ounce of cocaine and was waiting for it to be delivered to him. Williams and Donnie were sitting at the bar, and when Williams told Donnie she would like to purchase one-half gram, Donnie told her to keep her voice down because the bar manager, Kurt Geddes, who was in the vicinity, might overhear her. Later she gave Donnie $40 for cocaine which was delivered in the bar, but out of the presence of any employee of the bar.
On September 15, 1990, Williams made purchases of cocaine through Donnie from a patron named Joe, and also from Tom, another regular patron of the bar who also helped with stocking the beer cooler.
On September 20, 1990, Williams while in the bar, discussed with Tom a
$30,000 pot deal Tom was considering with Donnie, but backed off because he was afraid it was a rip off.
On September 21, 1990, Williams, was again in the bar pursuing the investigation when she was approached by Tom and told that he was going out for cocaine because so many wanted it. She later observed agent Warren making a purchase from Tom.
On September 23, 1990, Williams again purchased cocaine from Tom in the bar. On September 26, 1990, she purchased cocaine from another patron identified as Joe Cochrane. On September 28, 1990, Williams purchased one gram of cocaine from Tom for $80 which was delivered in the bar.
On October 6, 1990, Williams approached Donnie to buy cocaine, and he took her outside to the parking lot where the transaction took place. On October 7, 1990, she witnessed a cocaine transaction between Tom and agent Warner. On October 9, 1990, Williams purchased cocaine from Tom on the licensed premises. On October 17, 1990, she purchased cocaine from a patron named Orville inside the crowded noisy bar. Finally, on October 18, 1990, she purchased one-half gram of cocaine from Donnie just outside the front door of the licensed premises.
Agent Warner was in the Crystal Bar each time agent Williams made a purchase and positioned herself to observe those purchases. On September 11, 1990, Warner went outside the bar with a patron and simulated snorting coke in his car. On September 12, 1990, she observed Donnie restock the bar, sweep up a broken glass, and bring in ice for the bar. On September 26, 1990, she purchased marijuana from Joe Cochrane, which was delivered outside the bar. On September 27, 1990, Warner purchased cocaine from Joe Cochrane, again delivered outside the bar.
On several occasions when beverage agents purchased controlled substances in the bar, the purchase was openly displayed to other patrons of the bar and could have been seen by the barmaid. However, no one ever told these agents to remove these drugs from the premises. In openly displaying those controlled substances, the agent's were "over acting" to publicize as much as possible that they had purchased and were displaying controlled substances.
Of those purchases made inside the bar, six were from Tom, two were from Donnie and one each from Orville and Joe Cochrane. No witness observed any employee involved in any drug transaction.
The license holders, Robert and Geraldine Geddes visit the bar on a daily basis, she to maintain the books and records, and he to socialize a few hours before leaving around 7 p.m. The daily operation of the bar was turned over to their son, Kurt Geddes, in 1980, although they are consulted and approve all major decisions.
As manager, Kurt Geddes instructs employees in their duties. He has established a well known policy that any employee involved in any drug transaction is immediately fired, that if any drug transactions on the premises are observed, the patrons are to be directed to leave immediately, and the police are called if they do not leave. These policies are not written out and published in an "employee's manual" but are discussed with all new employees, and intermittent meetings are held with employees to reiterate these policies. Kurt Geddes testified that he was aware of Donnie's previous conviction for dealing drugs, but that Donnie had assured him that he (Donnie) had learned his lesson and was totally removed from drugs. He never saw any evidence of drugs being used or sold in the bar, nor had anyone advised him that drug dealings were being negotiated on the licensed premises. He once saw a patron with marijuana in the bar and told him to leave.
The Geddes are members of the Independent Beverage Dealers Association and have been for many years. They have attended seminars offered by this Association. Kurt Geddes was unaware of the Tampa DABT's Awareness Program for licensees, but is aware of the Responsible Vendor's Program.
Two barmaids employed by Respondent testified that they were aware of the policy regarding drugs in the bar and that they never saw any employee or patron use or sell drugs in the bar.
Four regular customers of the Crystal Bar who consider themselves friends of the licensee testified that they visit the bar frequently, but usually leave at an early hour, and they have never seen any drugs sold or used in the bar. They consider the bar to be a family bar where friends congregate. The patrons consist of both an older group and a younger group, and there is not a lot of mixing between the two groups.
During this investigation, several bars were targets of the investigation, and emergency suspension orders were, at the time of this hearing, issued to two of these licensees, viz., the Crystal Bar and Quaker Bar. Both of these cases were referred to the Division of Administrative Hearings and assigned to this Hearing Officer. Before the date scheduled for hearing, the case against Quaker Bar was settled; and the Quaker Bar was allowed to reopen.
The charges preferred against the Quaker Bar were similar to the charges here involved, viz., sale of controlled substances on the licensed premises. However, the allegations against the Quaker Bar included the sale of controlled substance on the premises by an employee of the Quaker Bar as well as by patrons of the bar.
The only apparent difference in the licensees is that the Quaker Bar had entered into a responsible vendor's certification program which became effective January 1, 1990 (Section 561.705, Florida Statutes). This statute provides that a licensee seeking to qualify as a responsible vendor shall provide the Division with evidence of compliance with the provisions of this section. Generally, this requires a vendor to provide an approved course of instruction to its employees in alcohol and controlled substance effects, methods of dealing with customers and recognizing underage customers, requiring each employee to complete certain courses relating to alcoholic beverage operations and to complete applications requiring background information on the applicant for employment, and the posting of signs on the premises advising customers of the vendor's policies regarding drugs on the premises.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 561.29(1), Florida Statutes, provides the Division may take disciplinary action against a licensee under the beverage law upon sufficient cause 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, 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, consumption or use
of alcoholic beverages, or engaging in or permitting disorderly conduct on the licensed premises, or per- mitting 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, provides in pertinent part:
Any store, shop . . . or any place whatsoever which is visited by persons for the purpose of unlawfully using any substance controlled under Chapter 893
. . . or which is used for the illegal keeping, selling, or delivering of the same shall be deemed a public nuisance.
Section 893.13(l) (a), Florida Statutes, provides generally that it is unlawful for any person to sell a controlled substance. The cocaine and marijuana here involved are controlled substances as defined in Chapter 893, Florida Statutes.
Here no credible evidence was presented that any agent, servant or employee of the licensee violated any laws of this state by selling controlled substances on the licensed premises. Accordingly, a violation of Section 561.29(1)(a), Florida Statutes, was not proved.
However, the evidence of ten buys inside the licensed premises between September 10 and October 24, 1990, and several more buys in the parking lot outside the licensed premises is unrebutted evidence that the Crystal Bar was a place used for the illegal selling, delivering and using of controlled substances. Therefore, by definition, the Crystal Bar constituted a public nuisance, and thereby the licensee violated Section 561.29(1)(c), above quoted.
Normally the appropriate penalty for violation of Section 561.29(1)(c), Florida Statutes, is revocation of license. However, in most of those cases the sale of drugs in the licensed premises is so blatant that the licensee is presumed to be aware of, if not actually aware of, and to have condoned the sale; or the employees of the licensee are players in the transaction. Here, those conditions do not appear.
Further, the fact that the Quaker Bar received a punishment less than revocation when an employee of the Quaker Bar was a participant in the sale of controlled substances on the premises, raises the question of disparate treatment if this license is revoked.
When an employee violates a law by selling controlled substances on the licensed premises, a violation of Section 561.29(1)(a) is committed. Thus, the factual situation at Quaker Bar is worse than the factual situation here as only patrons were involved in sales at the Crystal Bar.
It is recognized that encouragement should be given to licensees to participate in the Responsible Vendor Program, but revoking this licensee for a beverage law violation much less severe than that allegedly committed by the Quaker Bar who, solely because of their participation in the Responsible Vendor Program, has been given a punishment less than revocation of license, constitutes disparate treatment. Had both licenses been equally guilty, then participation in the Responsible Vendor Program could have saved the participant's license from revocation; but not when the participant's in the Responsible Vendor Program conduct is more egregious than the conduct of the nonparticipant.
No evidence was presented regarding the terms of the settlement agreement with the Quaker Bar. Accordingly, I cannot recommend a specific penalty comparable to that imposed upon the Quaker Bar, although that is the maximum penalty here deemed appropriate.
Based upon the foregoing findings and conclusions, it is recommended that Robert A. and Geraldine Geddes, d/b/a Crystal Bar, be assessed an administrative fine of $10,000 plus investigative costs of the investigation: $1000 to Pasco County Sheriff's Office and $3800 to the Division of Alcoholic Beverages and Tobacco, and the license suspended for a period of three months. It is further recommended that the suspension be stayed for a probationary period of one year under such terms and conditions as the Division deems appropriate, and upon satisfactory completion of the probationary period, the license be restored to its original status and condition. It is further recommended that this penalty not exceed the penalty administered to the Quaker Bar.
K. N. AYERS Hearing Officer
Treatment Accorded Petitioner's proposed findings: 1-2. Accepted.
3. First part accepted, except marijuana purchased for
$20, vice $23. Remainder of finding rejected as recitation of testimony of witness rather than finding of fact. Other parts rejected as uncorroborated hearsay. Last sentence incomplete.
5-17. Accepted.
18. Accepted, except for penultimate sentence regarding transaction observed by barmaid. The witness testified only to what the barmaid could have seen.
19-22. Accepted.
23. Generally accepted, however, the testimony of Investigator Maggio was that the marijuana fell out of Investigator Warner's bag, and the barmaid smiled when she saw it.
24-26. Accepted.
27-28. Rejected as recitation of testimony of witnesses rather than findings of fact.
1-13. Accepted.
16-17. Rejected. Petitioner's investigators testified they overreacted to make their purchase of drugs in the bar more obvious.
18-21. Accepted.
22. Accepted only insofar as no employee who testified in these proceedings saw any drug transaction on the licensed premises.
23-24. Accepted.
25. Accepted insofar as no patron of the bar who testified in these proceedings observed drug use or saw drug transactions on the licensed premises.
26-39. Accepted.
42-44. Accepted.
Robin L. Suarez, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007
Peter P. Murnaghan, Esquire Jeanne Maguire, Esquire Post Office Box 0959
Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007
Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007
