STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 91-7984

)

JOSE B. MEDINA, d/b/a C.J.'S )

PIZZA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on February 5, 1992, in Ft. Lauderdale, Florida.

APPEARANCES

FOR PETITIONER: Thomas A. Klein, Esquire

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

FOR RESPONDENT: Jose B. Medina, Pro Se

5150 Coconut Creek Parkway Margate, Florida 33063

STATEMENT OF THE ISSUES

The issue for determination in this proceeding is whether Respondent committed the acts alleged in the Notice To Show Cause and, if so, what penalty, if any, should be imposed.

PRELIMINARY STATEMENT

Petitioner issued a Notice To Show Cause on October 15, 1991, and Respondent timely requested a formal hearing. The matter was referred to the Division of Administrative Hearings for assignment of a hearing officer and assigned to Hearing Officer Stuart M. Lerner on December 18, 1991. A formal hearing was scheduled for February 5, 1992, pursuant to a Notice of Hearing issued on January 13, 1992. This proceeding was transferred to the undersigned on February 4, 1992.

At the formal hearing, Respondent made an ore tenus motion for continuance on the record. Respondent represented that criminal charges were pending against him and asserted that to conduct the hearing prior to the conclusion of the criminal case would require Respondent to choose between asserting his

constitutional right against self incrimination and remaining silent in the administrative proceeding or testifying in the administrative proceeding and possibly incriminate himself in the criminal case. Respondent represented that the criminal case had been pending for approximately eight months and that he had notice of this hearing shortly after January 13, 1992. Respondent's motion for continuance was denied as not timely made and without good cause.

Respondent elected not to testify and not to participate in the formal hearing in any manner, including cross examination of witnesses and objecting to the admissibility of exhibits.

Petitioner presented the testimony of Cythia Sellers-Sampson, Special Agent, Broward County Sherriff's Office ("BSO"), Detectives John Bukata and Arthur Barnhouse, BSO, and Mr. Randy Hilliard, Chemist, BSO, who was accepted as an expert in forensic chemistry. Petitioner submitted three exhibits for admission in evidence. 1/ Petitioner's exhibits were admitted in evidence without objection.

A transcript of the formal hearing was not requested by either party.

Proposed findings of fact and conclusions of law were timely filed by Petitioner on February 10, 1992. Respondent did not file proposed findings of fact and conclusions of law. Petitioner's proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Jose B. Medina ("Medina"), holds alcoholic beverage license number 16-07324, series 2-COP. The licensed premises are known as C.J.'s Pizza and Subs C.J.'s is located at 5150 Coconut Creek Parkway, Margate, Broward County, Florida.

   
   

2. In June of 1990, Detective Bukata of the Broward County Sheriffs Office (BSO) conducted an undercover narcotics investigation involving Medina and C.J.'s Pizza and Subs. Detective Bukata negotiated with Medina several times at C.J.'s for the purchase of several kilograms of cocaine. However, a transaction was never consummated due to Medina's requirement that approximately $46,000.00 in cash be paid in advance.

   
   

3. After several unsuccessful attempts at negotiations, Detective Bukata referred the open investigation to his partner, Detective Barnhouse, sometime in the spring of 1991. This was due in part to new information being obtained from confidential informants as well as Medina's reputation in the community for dealing in stolen property.

   
   

4. On or about May 28, 1991, two "Uzi" semi-automatic pistols were stolen in a residential burglary in Coral Springs, Florida. Subsequently, Detective Barnhouse was notified by a confidential informant that Medina offered to sell these weapons for $250.00 each. On May 30, 1992, Detective Barnhouse purchased the two semi-automatic pistols from Medina at the licensed premises.

   
   

5. The serial numbers on the weapons were identical to those which were stolen in the burglary. The weapons were still in their original packaging and had a price tag of $875.00 each. Medina offered to sell Detective Barnhouse more stolen weapons and was instructed not to deface the serial numbers. Medina either knew or should have known that the weapons were stolen.

   
   

6. In June of 1991, Detective Barnhouse began conducting negotiations with Medina regarding the purchase of several kilograms of cocaine. Detective

   Barnhouse met several times with Medina at C.J.'s, had several telephone conversations, and openly displayed several thousands of dollars in an attempt to purchase cocaine. However, as in Detective Bukata's prior dealings with Medina, the negotiations were stalled due to Medina's cash advance requirement.

   
   

7. On August 23, 1991, Detective Barnhouse offered to purchase a smaller quantity of cocaine from Medina. Subsequently, Detective Barnhouse met with Medina at the licensed premises and was shown two plastic bags containing approximately sixty grams of cocaine. After the display, Medina returned the cocaine to a storage area in the kitchen. Subsequently, he was arrested by Detectives Bukata and Barnhouse.

   
   

8. The substance displayed by and subsequently seized from Medina tested positively as cocaine during field testing. Laboratory tests confirmed that contents of the packages was cocaine.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Department of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding. The parties were duly noticed for the formal hearing.

   
   

10. Section 561.29(1), Florida Statutes, authorizes Petitioner 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 the state or of the United States, ... or permitting another on the licensed premises to violate any of the laws of this state or of the United States, ...

       
       

       Violation by the licensee or, if a corporation, by any officers thereof, of any laws of this state or any state or territory of the United States.

       
       

11. Section 812.019(1), Florida Statutes, makes it unlawful for any person to traffic in or endeavor to traffic in, property that he or she knows or should know is stolen. Section 812.012(7)(a) defines trafficking as selling, transferring, distributing, dispensing or otherwise disposing of property. Respondent violated Section 812.012(7) a) by trafficking in stolen property.

    
    

12. Section 893.135(1)(a)3(b), Florida Statutes, makes it unlawful for a person to knowingly sell or knowingly possess 28 or more grams of cocaine. If a person possesses more than that statutory threshold, it is defined as "trafficking in cocaine". Respondent violated Section 893.135(1)(a)(3)(b), by trafficking in cocaine.

    
    

13. Section 561.29(1)(a), Florida Statutes, authorize suspension or revocation of an alcoholic beverage license whenever the licensee violates a law or permits another on the licensed premises to violate the laws of this state. Respondent violated Section 561.29(1)(a), Florida Statutes, by trafficking in both stolen property and cocaine.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the alcoholic beverage license held by Respondent, Jose B.

Medina, d/b/a C.J.'s Pizza and Subs, license number 16-07324, series 2-COP, be revoked.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of February, 1992.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1992.

ENDNOTE

1/ Petitioner's Exhibit 1 is a composite exhibit cosisting of the Property Receipt and Crime Laboratory Analysis Report.

Petitioner's Exhibit 2 is a composite exhibit consisting of one original and one copy of photographs of two "Uzis" seized during Respondent's criminal arrest. Petitioner's Exhibit 3 is a composite exhibit consisting of one original and one copy of two bags of cocaine.

APPENDIX CASE NUMBER 91-7984

Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the Paragraph number(s) in the Recommended Order where they have been accepted, if any. Those Proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Respondent waived his right to submit Proposed findings of fact.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. Accepted in Finding 1

2. Accepted in Finding 2

3. Accepted in Finding 3

COPIES FURNISHED:

Thomas A. Klein, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32399-1007

Jose B. Medina, Pro se 5150 Coconut Creek Parkway Margate, Florida 33063

Barbara Palmer, Director Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

Donald D. Conn, General Counsel Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

Janet E. Ferris, Secretary Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-007984

Orders for Case No: 91-007984