DEPARTMENT OF BUSINESS REGULATION ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
vs. ) CASE NO. 93-2969
Respondent. )
Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Susan B. Kirkland, on September 24, 1993, in Miami, Florida. The following appearances were entered:
Whether Respondent violated Sections 849.01, 849.15, and 849.09(1)(k), Florida Statutes, and if so what penalty should be imposed pursuant to Section 561.29, Florida Statutes.
On April 6, 1993, Petitioner issued a three-count Administrative Action, seeking to discipline Respondent for violations of Sections 849.01, 849.09(1)(k), and 849.15, Florida Statutes. By letter dated April 19, 1993, Respondent requested an administrative hearing. The matter was transferred to the Division of Administrative Hearings for formal proceedings on June 1, 1993. This case was assigned to Hearing Officer Claude B. Arrington, who scheduled the case for hearing on September 24, 1993. The case was transferred to Hearing Officer Susan B. Kirkland who conducted the formal hearing.
The parties stipulated to the following facts: The licensee/Respondent is Christina Market Corporation doing business as Christina Sandwich Shop, with premises located at 4085 East Eighth Avenue, Hialeah, Florida. During the time period April 1, 1993 through March 31, 1994, Respondent had a Series II, COP license, number 23-2039. Gladys Rodriguez is the president and 100 percent stockholder of Respondent corporation.
Petitioner presented three witnesses. Petitioner's exhibits 1-7 were entered into evidence. Respondent called no witnesses. Respondent's exhibits 1 and 1A were entered into evidence.
At the hearing Respondent objected to Sergeant Bidart's interpreting Spanish words on yellow slips of paper found in Gladys Rodriguez's purse and in sales books found on Respondent's premises. Ruling was reserved on the objection until the issuance of the Recommended Order. The objection is overruled. Sergeant Bidart was under oath and showed sufficient knowledge of the Spanish language to be qualified to interpret the simple words in the documents.
A transcript was filed on October 18, 1993. Petitioner timely filed proposed findings of fact and conclusions of law. Respondent did not file findings of fact or conclusions of law. Petitioner's proposed findings of fact are ruled upon in the Appendix to this Recommended Order.
Respondent, Christina Market Corporation, d/b/a Christina Sandwich Shop, is located at 4085 East Eighth Avenue, Hialeah, Florida. At all times relevant to this proceeding, Respondent held a Series II, COP license, number 23-2039. Gladys Rodriguez is the president and 100 percent stockholder of Respondent.
A Series II, COP license is a license issued by the Division of Alcoholic Beverages and Tobacco to sell beer and wine for consumption on the premises.
On March 10, 1992, Leonard H. Delmonte, an investigator for the Miami office of the Division of Alcoholic Beverages and Tobacco conducted an inspection of Respondent's premises. Mr. Delmonte observed five coin-operated poker machines and issued a Notice, warning that the poker machines were in violation of Rule 7A-3.004, Florida Administrative Code.
On March 24, 1992, Respondent's premises were again inspected. The poker machines had been removed.
Phillip Bidart, a sergeant with the organized crime section of the Hialeah Police Department, investigates violations of Chapter 849, Florida Statutes, as part of his duties with the police department. During the last two years he has investigated approximately 45 to 47 premises for gambling violations. Based on these investigations and professional training, Sergeant Bidart has developed expertise in the identification of devices commonly used in gambling and the investigations of violations of Chapter 849.
In September, 1992, Sergeant Bidart observed video game machines at Respondent's premises. Later in September or October, 1992, he went in the establishment and saw a Bosconian video game machine which displayed an El Dorado Super Seven game on the screen and saw patrons playing the machine.
In December, 1992, Sergeant Bidart sent two detectives to Respondent's establishment. They observed remote control type video game machines. One of the detectives played one of the machines and lost.
In January, 1993, the Hialeah police raided an establishment near Respondent and found gambling machines. Shortly thereafter, the police visited Respondent's business and the video games machines previously observed in the fall of 1992 were gone.
In late January or early February 1993, Sergeant Bidart observed people playing the video game machines at the Respondent's establishment. He believed that they were gambling because they were adults and were playing after nine o'clock at night.
On February 6, 1993, Sergeant Bidart and other Hialeah police officers raided Respondent's business. There were no patrons in the establishment at the time of the raid. The police found and seized three video game machines: a Bosconian, a Mario Brothers, and a Chop-Lifter. Each machine had a coin slot and a paper currency slot which was located on the side of the machine and not in the same area as the coin slot. It is a common characteristic of gambling devices to contain such currency slots.
A video gambling machine usually has a meter on the machine which shows the number of credits accumulated by a player. The owners can reset the machine by hitting a button which zeroes out the credit. The El Dorado Super Seven game found on Respondent's premises had such a reset button.
During the raid the police also found a remote control on a shelf behind the counter. When one of the top three buttons was pushed, the Bosconian game screen turned into an El Dorado screen and the Mario Brothers screen turned into a Winner's Circle screen. The Chop-Lifter machine was not working; however Ms. Rodriguez advised Sergeant Bidart that the Chop-Lifter screen could be changed to a Cherry Bonus screen by the use of the remote control. A remote control is a device that is commonly used in gambling establishments to change the screens on video machines in order to mask game screens that are used for gambling.
When an El Dorado Super Seven game is being played, three columns each containing three items will form three rows, each row containing three items.
If three of the same items come up, vertically, horizontally, or diagonally, the player gets credits. El Dorado Super Seven games also have a high-low game which can be played as a bonus. Sergeant Bidart tested the El Dorado game by putting $20 in the machine and playing up to 110 credits. No skill was involved in playing the game.
Sergeant Bidart turned on the Winner's Circle game and tested it by putting money in the currency slot. The game is a horse race with eight horses which run across the screen, and the player is supposed to bet on a horse. Sergeant Bidart was not certain how a player was supposed to win so he did not play the game. Based on his experience and training, he concluded that the Winner's Circle is a game of chance commonly used in gambling establishments, and that the screen on the Winner's Circle game was consistent with other Winner's Circle games that he had observed.
At the time of the raid, the Bosconian/El Dorado machine contained
$1.50 and the Mario Brothers/Winners Circle contained $8.00. There was no money in the Chop-Lifter machine. Ms. Rodriguez told Sergeant Bidart that she had emptied the money from the machines just prior to the raid.
During the raid, the police found a blue bank deposit bag containing
$1,116.00 in Ms. Rodriguez's purse. Ms. Rodriguez told the police that she had collected the money from the video game machines and that approximately $100 represented the receipts from the music machine.
At the time of the raid Ms. Rodriguez said that Tokyo Video owned the machines and collected the money from the machines each week. She gave 40 percent of the receipts to Tokyo Video and kept the remaining 60 percent. She admitted that she had had the machines for three months and that her average net receipt was $300 per week.
The police also found yellow slips of paper in Ms. Rodriguez's purse. Ms. Rodriguez told Mr. Bidart that the slips were some of the slips that Tokyo Video gives to her to show how much money she makes on the machines. She gives the slips to her accountant who records the take from the machines as sales.
She pays the appropriate tax and normally destroys the slips after reporting the amounts to her accountant.
One of the slips is dated 9-29-92 and the other is dated 12-15-92. The other slip is undated. Based on Ms. Rodriguez's admission that the slips show her split with Tokyo Video on the machines, it is concluded that the names under the heading "Modelo Equipo," "Caballo", "Dorado" and "C. Bonus" refer to the Winner's Circle game, the El Dorado game, and the Chop-Lifter game. The slips show that credits were deducted from the amounts that were put in the machines to arrive at the net amounts that would be due Respondent and Tokyo Video.
Tally sheets are used in gambling establishments to record payouts to the owners. In the video game gambling business a credit usually represents 25 cents. Tally sheets record the number of credits and games played on the machine. The net due the owners is calculated by dividing the total credits by four. The yellow slips of paper found in Ms. Rodriguez' purse at the time of the raid are tally sheets.
Normally, owners of bars with gambling machines will keep records on the premises which show how much they have paid out to players on a particular day or show specific wins. The police also found three sales books. The books contain some pages with names and dates written at the top and had cash entries from 5 to 200. Most of the entries are for 200. Several entries are for an individual named Felix showing cash payments to him. One of the books shows a drawing resembling an El Dorado Super Seven screen when all 7's come up, with the exclusion of the two side scores from the center. The drawing shows three 7's horizontally across the top and across the bottom and three 7's vertically in the center. Above the drawing are the words, "Pago a Felix $2,812.50 Cash." Underneath the drawing is the notation "32 Bet" and underneath that is "11,250 Credit" with an arrow going from the 11,250 to the $2,812.50 above the drawing.
The police also found a composition book which contains one page with dollar amounts in two columns titled "pago" and "calro maq."
Ms. Rodriguez told Sergeant Bidart that she knew the machines were illegal but that since numerous bars in Hialeah and Opalocka had them she was going to have them too.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Petitioner has the burden of establishing the violations alleged in the Administrative Action filed against the Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292, (Fla. 1987). Clear and convincing evidence requires that:
[T]he evidence must found to be credible; the facts to which witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Much of the evidence presented by Petitioner is circumstantial evidence. In Davis v. State, 90 So. 2d 629, 631 (Fla. 1956), the court discussed the use of circumstantial evidence:
Circumstantial evidence is proof of certain facts and circumstances from which the trier of fact may infer that the ultimate facts in dispute existed or did not exist. The conclusion as to the ultimate facts must be one which in the common experience of man may reasonably be made on the basis of known facts and circumstances.
Respondent presented no evidence that rebutted the inference established by the evidence presented that Respondent permitting gambling on its premises. Respondent presented no reasonable hypothesis of innocence that could be inferred from the circumstantial evidence presented.
Section 561.29, Florida Statutes, provides that the Division of Alcoholic Beverages and Tobacco may revoke or suspend the license of any person holding a license under the Beverage Law when it is determined that the licensee, or if a corporation, any officers thereof, have violated any laws of the state or rules promulgated by the Division of Alcoholic Beverages and Tobacco. The Division may impose a civil penalty against a licensee for any violation mentioned in the Beverage Law or any rule issued pursuant thereto, not to exceed $1,000 for violations arising out of a single transaction.
In Count I of the Administrative Action, Petitioner alleged that Respondent through Gladys Rodriguez kept a gambling house "by permitting any person to play electronic gambling devices inside your licensed premises, for money or other valuable thing" in violation of Section 849.01, Florida Statutes, which provides:
Whoever by himself, his servant, clerk or agent, or in any other manner has, keeps, exercises or maintains a gaming table or room, or gaming implements or apparatus, or house, booth, tent, shelter or other place for the purpose of gaming or gambling or in any place of which he may directly or indirectly have charge, control or management, either exclusively or with others, procures, suffers or permits any person to play for money or other valuable thing, at any game whatever, whether heretofore prohibited or not, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or 775.084.
Section 849.01 specifies two offenses. "One is the maintaining of a house for the purposes of gambling. The other is permitting gambling in a place under one's control." Perlman v. State, 269 So.2d 385, 387 (Fla. 4th DCA 1972).
Count I of the Administrative Action does not allege a violation of the first offense in Section 849.01. It alleges only a violation of the second offense, the permitting of gambling in a place under one's control. Section 849.05, Florida Statutes provides:
If any of the implements, devices or apparatus commonly used in games of chance in gambling houses or by gamblers, are found in any house, room, booth, shelter or other place, it shall be prima facie evidence that the said house, room, booth, shelter or other place where the same are found is kept for the purpose of gambling.
Section 849.05 pertains to the first offense in Section 849.01, the maintaining of a place for the purpose of gambling. See Wooten v. State, 24 Fla. 335, 5 So. 39 (Fla. 1888). Thus, Petitioner's reliance on Section 849.05 to establish a prima facie case of the violation alleged in Count I of the Administrative Action is misplaced.
Petitioner did establish a prima facie case that Respondent did maintain a place for the purpose of gambling. Sergeant Bidart's unrebutted testimony was that the El Dorado Super Seven and the Winner's Circle were commonly known video gambling games; the remote control was a commonly used device used to change the screens on video games for children's games to gambling games; and the currency slots on the machines were common to gambling machines. However, the Administrative Action did not allege a violation of maintaining a place for the purpose of gambling; thus, such a finding will not
support disciplinary action against Respondent's license as alleged in Count I. See Davis v. Department of Professional Regulation, 457 So. 2d 1074 (Fla. 1st DCA 1984).
In order to establish a violation of the second offense in Section 849.01, Petitioner must show that 1) Respondent had control over the premises,
2) Respondent procured or permitted others to gamble on the premises and 3) there was habitual use of the premises for gambling. Ferguson v. State, 377 So.2d 709, (Fla. 1979).
Petitioner has established by clear and convincing evidence that Respondent had control over the premises located at 4085 East Eighth Avenue, Hialeah, Florida.
Petitioner has proved by clear and convincing evidence that Respondent permitted others to gamble on the premises. Gambling has been defined by the Florida Supreme Court as "anything which induces risk of money or property without any other hope of return than to get for nothing any given amount from another." Bellamy v. State, 347 So. 2d 419, 420 (Fla. 1977). There were video gambling machines on the premises, and testimony to the fact that others were seen playing the video gambling machines. Gladys Rodriguez was observed taking money from the machines. She admitted that the money found in the blue bank deposit bag represented, with the exception of approximately $100, receipts from the machines. The tally sheets found in Ms. Rodriguez' purse show that credits were being deducted from the amounts that were put in the machines by the players. If the players were not receiving money for the credits they accumulated, there would be no need to deduct anything from the amounts put in the machines to calculate the money due Respondent and Tokyo Video. The money put in the machines simply would be divided between them. It is a reasonable inference that the cash entries in the sales books are records of the payouts to the players of the video gambling machines. The page in one of the sales books which shows a drawing of an El Dorado Super Seven game screen with the notations concerning a $32 bet, 11,250 credit and a $2,812.50 cash payment to Felix leaves no doubt that that page is a record of a cash payment to Felix as a result of a bet on the El Dorado Super Seven game.
Petitioner has shown by clear and convincing evidence that others habitually used Respondent's premises for gambling. Sergeant Bidart observed persons playing the machines in the fall of 1992 and again in January or February, 1993 before the raid. An undercover police officer went into the establishment in December, 1992, played one of the machines and lost and observed others playing the machines. Two of the slips of paper in Ms. Rodriguez's purse had dates of September 1992 and December 1992. Ms. Rodriguez admitted that she had had the machines at least three months. The evidence is clear and convincing that persons were playing the games and had been for several months. The sales books also show that Respondent had been making cash payments to the players for the months in which the police had observed persons playing the gambling machines.
Petitioner has met its burden of proof concerning the allegations in Count I of the Administrative Action.
In Count II of the Administrative Action, Petitioner alleged that Respondent kept on the licensed premises, coin-operated machines or amusement devices, which the user, by a reason of element of chance, unpredictable by the user, may become entitled to receive money, credit allowance, additional chances to use the device or any other thing of value in violation of Section 849.15, Florida Statutes, which provides:
It is unlawful:
To manufacture, own, store, keep, possess, sell, rent, lease, let on shares, lend or give away, transport or expose for sale or lease, or to offer to sell, rent, lease, let on shares, lend or give away, or permit the operation of, or for any person to permit to be placed, maintained or used or kept in any room, space, or building owned, leased or occupied by him or under his management or control, any slot machine or device or any part thereof;
or
To make or to permit to be made with any person any agreement with reference to any
slot machine or device, pursuant to which the user thereof, as a result, of any element of chance or other outcome unpredictable to him, may become entitled to receive any money, credit, allowance, or thing of value or additional chance or right to use such machine or device, or to receive any check, slug, token or memorandum entitling the holder to receive any money, credit, allowance or thing of value.
Section 849.16(1), Florida Statutes, defines a slot machine as follows:
Any machine or device is a slot machine or device within the provisions of this chapter if it is one that is adapted for use in such a way that, as a result of the insertion of any piece of money, coin, or other object, such machine or device is caused to operate or may be operated and if the user, by reason of any element of chance or any other outcome of such operation unpredictable by him, may:
Receive or become entitled to receive any piece of money, credit, allowance, or thing of value, or any check, slug, token, or memorandum, whether of value or otherwise, which may be exchanged for any money, credit allowance, or thing of value which may be given in trade; or
Secure additional chances or rights to use such machine, apparatus, or device, even though it may, in addition to any element of chance or unpredictable outcome of such
operation, also sell, deliver, or present some merchandise, indication of weight, entertainment, or other thing of value.
The evidence presented clearly and convincingly shows that the El Dorado Super Seven game is a slot machine which was kept on premises of Respondent's business. The game is a game of chance in which players insert money in the machine and can receive credits entitling them to cash payments.
In Count III of the Administrative Action, Petitioner alleged that Respondent possessed at the licensed premises rundown sheets, tally sheets, or other papers, records, instruments, or paraphernalia designed for use, either directly or indirectly, in, or in connection with, the violation of laws of the state prohibiting lotteries and gambling in violation of Section 849.09(1)(k), Florida Statutes, which provides:
It is unlawful for any person in this state to:
(k) Have in his possession any so-called "run-down sheets," tally sheets, or other papers, records, instruments, or paraphernalia designed for use, either directly or indirectly, in or in connection with, the violation of the laws of this state prohibiting lotteries and gambling.
Petitioner has proved by clear and convincing evidence that Respondent violated Section 849.09(1)(k), Florida Statutes. The evidence shows that the tally sheets found in Gladys Rodriguez's purse at the time of the raid were used directly or indirectly in connection with the violation of the laws of this state prohibiting gambling. Ms. Rodriguez admitted that tally sheets showed the split of the receipts from the video machines between Respondent and Tokyo Video. The slips themselves reference the gambling games El Dorado, C. Bonus, and Caballo. Additionally, Ms. Rodriguez admitted that she knew that the machines were illegal. Her admission is consistent with the testimony of Sergeant Bidart that the machines were devices commonly used in games of chance in gambling houses. The sales books found on Respondent's premises are also records showing the cash paid to the players of the gambling video machines; thus they are used in connection with the violation of the laws of Florida prohibiting gambling.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of
violating Sections 849.01, 849.15, and 849.09(1)(k), Florida Statutes and revoking Respondent's alcoholic beverage license No. 23-02039, series 2-COP.
DONE AND ENTERED this 29th day of November, 1993, in Tallahassee, Leon County, Florida.
SUSAN B. KIRKLAND
Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1993.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2969
To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the Petitioner's proposed findings of fact:
Petitioner's Proposed Findings of Fact.
Miguel Oxamendi, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
Department of Business Regulation 1940 North Monroe Street Tallahassee, Florida 32399
John J. Harris Acting Director
Department of Business Regulation 1940 North Monroe Street Tallahassee, Florida 32399
All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten 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.
