STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6995

)

CESAR J. REYES, d/b/a )

BUSY CAFETERIA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on December 14, 1993, in Miami, Florida.

APPEARANCES

For Petitioner: Thomas A. Klein, Esquire

Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Cesar J. Reyes, pro se

260 Northwest 107th Avenue, Apartment 106 Miami, Florida 33172

STATEMENT OF THE ISSUES

At issue in this proceeding is whether respondent committed the offenses set forth in the notice to show cause and, if so, what disciplinary action should be imposed.

PRELIMINARY STATEMENT

By notice to show cause dated December 3, 1993, petitioner charged that respondent, the holder of an alcoholic beverage license, on November 17, 1993, November 23, 1993, December 1, 1993, and December 2, 1993, "unlawfully possessed, sold or delivered a controlled substance as defined in Section 893.03, F.S., to wit: . . . cocaine, to a third party, on [his] licensed premises in violation of Section 893.13(1)(a), within Section 561.29(1)(a), F.S.," and from "on or about November 17, 1993, and continuing to the date of the service of [the notice to show cause] . . . did unlawfully keep or maintain a place, to wit: [his] licensed premises, which building or place was used for

the illegal keeping, selling or delivery of substances controlled under Chapter 893.03, F.S., to wit: cocaine, in violation of Sections 823.10 and 893.13(2)(a)5, within Section 561.29(1)(a), F.S."

At hearing, petitioner called Special Agents Brian Weiner and Joe Lopez as witnesses. Respondent testified on his own behalf. Neither party presented any documentary evidence; however, at petitioner's request official recognition was taken of Rule 61A-2.022, Florida Administrative Code.

The transcript of hearing was not ordered so, at respondent's request, the parties were granted five days from the date of hearing to file proposed findings of fact. The parties' proposals are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times material hereto, respondent, Cesar J. Reyes, held alcoholic beverage license number 23-05034, series 2-COP, for the premises known as Busy Cafeteria Bar (the "premises"), located at 4601 West Flagler Street, Miami, Dade County, Florida.

   
   

2. In November 1993, Special Agent Joe Lopez of the Division of Alcoholic Beverages and Tobacco, together with the assistance of a confidential informant (CI), began an undercover investigation of the premises. Such investigation was predicated on information Special Agent Lopez had received from federal authorities which indicated that narcotics were being sold upon the premises.

   
   

3. On December 1, 1993, Special Agent Lopez and the CI entered the licensed premises. While inside the premises, the CI met with respondent and purchased a small plastic package containing 1/2 gram of cocaine for $30.00. On the same occasion, Special Agent Lopez met with respondent, and he also purchased a small plastic package containing 1/2 gram of cocaine for $30.00. 1/

   
   

4. On December 2, 1993, Special Agent Lopez and the CI returned to the licensed premises. While inside the licensed premises, they again met with respondent and purchased a small plastic package containing 1/2 gram of cocaine for $30.00.

   
   

5. On December 7, 1993, Special Agent Brian Weiner of the Division of Alcoholic Beverages and Tobacco served respondent with an emergency order suspending his alcoholic beverage license, and placed respondent under arrest for the sale of cocaine. Incident to such arrest, Special Agent Weiner searched respondent's person and discovered six small plastic packages, each containing 1/2 gram of cocaine, in a small box tucked under respondent's waist band.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 120.60(7), Florida Statutes.

7. 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 this state or of the United States

      . . . .

      * * *

      (c) Maintaining a nuisance on the licensed premises.

      
      

8. Section 893.13(1)(a), Florida Statutes, makes it unlawful for "any person to sell, purchase, manufacture, or deliver, or possess with intent to sell, purchase, manufacture, or deliver, a controlled substance. Cocaine is such a controlled substance. Section 893.03(2)(a)4, Florida Statutes. Here, the proof demonstrates that respondent violated the provisions of Section 893.13(1)(a), Florida Statutes, on the licensed premises on December 1 and 2, 1993, as alleged in the notice to show cause, and therefore violated the provisions of Section 561.29(1)(a), Florida Statutes.

   
   

9. Section 823.10, Florida Statutes, makes it unlawful for any person to keep or maintain a public nuisance, which is defined as "any store . . . 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 delivery of the same." Moreover, Section 893.13(2)(a)5, makes it unlawful "to keep or maintain any store, shop . . . or other structure or place which is resorted to by persons using controlled substances in violation of [Chapter 893] . . . or which is used for keeping or selling them in violation of [Chapter 893]." Here, the proof demonstrates that respondent violated the provisions of Sections 823.10 and 893.13(2)(a)5, Florida Statutes, on December 1, 2 and 7, 1993, and therefore violated the provisions of Section 561.29(1)(a) and (c), Florida Statutes.

   
   

10. Where, as here, the licensee personally engages in the sale of controlled substances on the licensed premises, the appropriate penalty is revocation. Rule 61A-2.022, Florida Administrative Code.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing Counts 1 and 2 of the

notice to show cause, finding respondent guilty of Counts 3, 4, 5 and 6 of the

notice to show cause, and revoking respondent's alcoholic beverage license.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of December 1993.

WILLIAM J. KENDRICK

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 28th day of December 1993.

ENDNOTE

1/ The notice to show cause also alleges that respondent sold cocaine to the CI for $30.00 on November 17 and 23, 1993, on the licensed premises. There was, however, no competent proof offered at hearing to support such allegations.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6995

Petitioner's proposed findings of fact are addressed as follows:

1. Adopted in paragraph 1.

2 & 3. Rejected as not relevant since there was no competent proof to demonstrate what occurred within the licensed premises or that respondent sold any cocaine to the CI on November 17 and 23, 1993. See endnote 1.

4 & 5. Addressed in paragraph 3.

1. Addressed in paragraph 4.

2. Addressed in paragraph 5.

3. Subordinate.

Respondent's proposed findings, as detailed in his letter of December 13, 1993, in so far as they suggest he did not sell cocaine on the licensed premises are rejected as contrary to the facts as found.

COPIES FURNISHED:

Thomas A. Klein, Esquire Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007

Cesar J. Reyes

260 Northwest 107th Avenue, Apartment 106 Miami, Florida 33172

and

c/o Busy Cafeteria

4601 West Flagler Street Miami, Florida 33133

John J. Harris, Acting Director Division of Alcoholic Beverages

and Tobacco Department of Business

and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Business

and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

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: 93-006995

Orders for Case No: 93-006995