STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, DIVISION ) OF ALCOHOLIC BEVERAGES AND )
TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 95-1403
)
EDWARD LEE HOWELL, )
d/b/a MR. B'S LOUNGE, )
)
Respondent. )
) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, DIVISION ) OF ALCOHOLIC BEVERAGES AND )
TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 95-1404
)
WILLIAM A. BELL, )
)
Respondent. )
)
RECOMMENDED ORDER
On March 29, 1995, an immediate post-suspension formal administrative hearing was held in this case. It was held before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings by televideo. (The hearing officer was in a specially-equipped hearing room in Tallahassee, and the other hearing participants were in a specially-equipped hearing room in Fort Myers, Florida.
The two hearing rooms were connected by televideo.)
APPEARANCES
For Petitioner: Thomas A. Klein, Esquire
Chief Attorney
Department of Business and Professional Regulation
Division of Alcoholic Beverages and Tobacco The Johns Building
725 South Bronough Street Tallahassee, Florida 32399-1020
For Respondents: Edward Lee Howell, pro se
1348 Brook Hill Drive
Ft. Myers, Florida 33916
William A. Bell, pro se 19450 Tammy Lane
Ft. Myers, Florida 33917 STATEMENT OF THE ISSUES
The issues in this case are whether the Petitioner, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (DABT), should: (1) revoke or otherwise discipline the Series 2-COP alcoholic beverage license held by the Respondent, Edward Lee Howell, d/b/a Mr. B's Lounge, at licensed premises located at 2712 Towles Street, Fort Myers, Florida; and (2) prohibit any alcoholic beverage license from being placed at those premises, which are owned by the Respondent, William A. Bell, for a period of up to two years.
PRELIMINARY STATEMENT
On or about March 16, 1995, an Emergency Suspension Order was entered and served on the Respondent, Edward Lee Howell (Howell), on grounds that: (1) since 1988, his establishment has been a gathering place for people who act in a violent manner, so as to constitute a public nuisance; and (2) since January, 1992, he has allowed patrons to consume alcoholic beverages after 2 p.m., in violation of a Lee County ordinance prohibiting the sale, service and consumption of alcoholic beverages between the hours of 2 a.m. and 7 a.m. A Notice to Show Cause alleging essentially the same charges was served along with the Emergency Suspension Order.
Also, on or about March 16, 1995, a Notice to Show Cause was served on the Respondent, William A. Bell (Bell), as owner of the licensed premises, to advise him of the charges against Howell and of the DABT's intention to prohibit any alcoholic beverage license from being placed at his property at 2712 Towles Street for a period of up to two years.
The papers served on Howell and Bell offered them the opportunity for an immediate post-suspension hearing by televideo conference on March 29, 1995. Both Howell and Bell requested the immediate post-suspension hearing, and on March 23, 1995, the two cases were referred to the Division of Administrative Hearings (DOAH), where the case against Howell was given DOAH Case No. 95-1403 and the case against Bell was given DOAH Case No. 95-1404. The two cases were consolidated for final hearing by televideo conference on March 29, 1995.
At the final hearing, the DABT called eight law enforcement witnesses and five community witnesses and had DABT Exhibits 1-8 and 11-12 admitted in evidence. Howell testified on behalf of the Respondents and had Howell Exhibits
and 2 admitted in evidence. Bell did not testify or present any additional evidence.
At the end of the hearing, the parties were given ten days in which to file proposed recommended orders. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the Appendix to Recommended Order, Case Nos. 95-1403 and 95-1404.
FINDINGS OF FACT
The Respondent, Edward Lee Howell (Howell), holds alcoholic beverage license number 46-01252, Series 2-COP, for licensed premises located at 2712 Towles Street, Fort Myers, Florida, known as Mr. B's Lounge.
Violation of Local Ordinance
Lee County Ordinance 76-9, as amended by Ordinance 79-1, provides in pertinent part:
All places or establishments within the unincorporated area of the county and lawfully licensed by the State Beverage Department of Florida, may sell or serve, or permit to be sold, served or consumed, any type of alcoholic beverage of any kind whatsoever for consumption
both on or off the premises only during the hours of 7:00 a.m. and 2:00 a.m. of the following morning every day of the week, including Sundays.
Howell was cited on or about July 1, 1989, for allegedly violating this "hours of sale" ordinance, but he was aquitted in August, 1989.
In 1990, Lee County Sheriff's Office (LCSO) Deputy James Nygaard warned Howell a half dozen times not to sell alcoholic beverages after 2 p.m. On or about December 28, 1990, Nygaard cited Howell for allegedly violating the ordinance by allowing a patron to consume alcoholic beverages on the premises after hours. Howell was tried and acquitted because it was not proven that the patron was drinking an alcoholic beverage.
After successive reassignments to another patrol zone and to work as a detective, Nygaard was reassigned to patrol the East Zone in January, 1995. Beginning in January, 1995, Nygaard warned Howell twice not to sell alcoholic beverages after 2 p.m. On or about March 11, 1995, Nygaard cited Howell for violating the ordinance. Howell denied the charges, which still were pending in criminal court at the time of the final hearing.
Nygaard testified that, this time (in contrast to the December, 1990, charge), he retained a sample of the contents of the container out of which the patron was drinking after 2 p.m. He testified that the sample was tested and found to be an alcoholic beverage. But the evidence shed no light on the extent of Howell's responsibility for the violation (e.g., how long after 2 p.m. the violation occurred, whether the violation was flagrant, whether Howell was even on the premises at the time of the violation or, if not, how diligent he was in training his employees on how to prevent violations of the "hours of sale" ordinance.)
Howell denied that he sells or serves or allows alcoholic beverages to be served, sold or consumed in violation of the ordinance. Mr. B's remains open after 2 a.m. and patrons dance and listen to music, but Howell testified that they are not allowed to drink alcohol in the lounge after 2 a.m.
Towles Street Near Mr. B's
Mr. B's Lounge is in a section of Fort Myers, Florida, where in recent years violent crime increasingly has become an undeniably serious problem to area residents and the LCSO, which is the law enforcement agency having jurisdiction.
Towles Street is a two-lane road that runs between Edison Avenue and State Road 82 outside the city limits of the City of Fort Myers. During the evening hours, especially on weekends, large numbers of people park cars in the street and congregate in the area. Some of these people patronize Mr. B's, but many more congregate in the street and on both sides of the street up and down Towles Street in the vicinity of Mr. B's. A good number of these people drink too much and become noisy and violent. (Not all of the drinking takes place in Mr. B's, and not all of what is drunk comes from Mr. B's. Many of these people buy their alcoholic beverages elsewhere, or bring them from home, and drink their alcoholic beverages outside on and along Towles Street.) Many drive at recklessly high speeds up and down the street (when the streets are passable.) Loud music is played from stereos in car driving up and down the street and parked in the street. Some of these people, drunk or not, come to the area with the intention to engage in crime, violence and other disruptive conduct. More and more carry knives and firearms, or keep them in their cars, and many use or threaten to use their weapons. Assaults and armed robberies are common.
The area around and including Mr. B's has become known to those who frequent it as a place to go to "hang out" and be a part of this violent scene. The violence, including stabbings and shootings, has become so prevalent that residents of the area who do not participate in the violence are afraid to leave their homes at night and, even in their homes, they are not completely safe from stray bullets. The violence and reputation for violence on Towles Street in the vicinity of Mr. B's has become like no other place in Lee County. One LCSO deputy testified that he has heard more automatic weapon fire on duty at night on Towles Street than he heard during his entire experience as a member of the United States armed forces.
Some deputies testified that, especially on weekends, there often are so many cars parked illegally in Towles Street that deputies patrolling the area or responding to complaints have to park their police vehicles on Edison Avenue or State Road 82 and walk in. They believe that, when they are seen approaching, the people congregating in the vicinity of Mr. B's lock their weapons in cars and that many of them enter Mr. B's to avoid the deputies.
On occasion, the crowds of people encountered by LCSO deputies on Towles Street do not disperse so readily. Once, two deputies responding to a call for service in the vicinity of Mr. B's were assaulted before reaching the lounge and received injuries, including a broken jaw, requiring medical attention in the hospital. (Howell assisted the deputies in subduing the assailant.) On another occasion, it took deputies approximately an hour to control and disperse the crowd, during which time another call for LCSO assistance had to go unanswered for half an hour.
Some of the incidents on Towles Street occur before 2 a.m., but many occur later, after the LCSO patrols have been reduced to a single shift. With fewer deputies on patrol, the violence on Towles Street becomes an even greater problem for law enforcement. By the time backup arrives in response to calls on Towles Street, practically no deputies remain available to patrol or respond to calls for service in the rest of the zone.
The Licensed Premises
No sketch of the licensed premises was introduced in evidence. The evidence was that Mr. B's faces Towles Street and that the front door opens onto a front step that is separated from the street by an unpaved strip of grass and dirt about seven feet wide. Until very recently, Mr. B's had only four parking spaces and did not have a parking lot. The precise extent of the licensed premises was not made clear from the evidence.
During an inspection of the licensed premises on February 23, 1995, DABT Special Agent Odom recovered 141 spent gun shell casings in the vicinity of Mr. B's, including: seventy-four 74 9mm's; three 38 Specials; sixteen 16 357 Magnums; four 45-caliber; three 30-caliber; three 44 Magnum; one 10mm; 2 25- caliber; and nineteen 12 gauge shotgun shell cases. Some of these spent shell casings were recovered between the front door to Mr. B's and Towles Street.
Most were recovered within 15 to 20 feet from the lounge building, but some were recovered as far as 20 yards away, including some that were found all the way across Towles Street on the opposite side of the street. Four were recovered under the cushion of a couch inside Mr. B's, but there was no evidence how they got there and no evidence that they were fired inside Mr. B's. Except for these four, it was not proven that any of the spent shell casings actually were recovered from the licensed premises themselves.
From February, 1991, through October, 1994, there have been 135 calls for LCSO service arising out of incidents in the vicinity of Mr. B's. Some of the calls reported finding lost property or suspicious persons or were for the purpose of reporting some other information to the LCSO. Many of the calls were for relatively minor offenses, such as disturbances, trespassing, vandalism, nuisances, car accidents and highway obstruction. But many were for more serious crimes such as assaults, use or display of firearms, burglaries and robberies. Although many of these calls were placed from a telephone at Mr. B's, the evidence was not clear which, if any, of the incidents instigating calls actually occurred at Mr. B's. It seems clear that the police records use a reference to "Mr. B's" as as short hand way of describing Towles Street in the vicinity of Mr. B's.
Some of the incidents in the vicinity of Mr. B's constituted violent crimes. Since 1988, there have been: two murders; four attempted murders; 11 batteries with a firearm; two batteries with a knife; one sexual battery or attempted rape; one shooting into a vehicle; one robbery with a firearm; and two batteries with a dangerous weapon. Most of these crimes occurred outside of Mr. B's, and the evidence did not prove that they occurred on the licensed premises, or how close to the licensed premises they occurred.
One incident that clearly occurred on the licensed premises was a fight that broke out during the early morning hours of February 12, 1995. One person was hit on the head with a claw hammer, and another was stabbed with a knife. After some of the participants left Mr. B's, fighting continued outside on the street. Someone telephoned the LCSO, and when deputies arrived, they witnessed four men kicking another who was lying on the ground behind a car, while approximately fifty other people stood watching. As the deputies approached, a man with a sawed-off shotgun walked up to the man lying on the ground and shot him in the leg. It was not clear from the evidence whether any of the people involved in the incident outside on the street had been patrons of Mr. B's.
On or about August 3, 1993, the LCSO investigated an incident in which a patron of Mr. B's was shot while walking out the door of Mr. B's. The victim did not know who shot him or where the shot came from.
On or about June 7, 1994, the LCSO investigated an incident involving an alleged sexual battery or attempted rape that occurred in the restroom at Mr. B's. The alleged victim in that case withdrew her complaint, and the case was closed.
One LCSO deputy testified that he has received several telephone calls from a pay phone down the street at Edison Avenue reporting assaults and other crimes that allegedly occurred inside Mr. B's and that the victim reportedly was afraid to place the call to the police while still at Mr. B's (for fear of further assault.) But there was no specific evidence about any of these alleged crimes.
Although some local residents blamed Mr. B's for the loud music heard in the neighborhood, especially on weekend nights, it was not clear whether the loud music being heard by the local residents actually is coming from Mr. B's, as opposed to being played from car stereos on the streets.
The Respondent's Responsibility for the Violence and Noise
It was not proven that Howell does anything to condone violence and noise in or around Mr. B's Lounge or that he is protecting criminals from apprehension by the LCSO. To the contrary, almost all of the crime reports to the LCSO from 2712 Towles Street were placed by Howell himself or his employees. Not only has Howell telephoned the police for assistance on many occasions, he also has put himself at risk of physical harm by helping law enforcement officers subdue violent subjects in and around the premises. In addition, Howell employs a bouncer who uses a metal detector to try to insure that no weapons are brought into Mr. B's and denies entrance to certain people known to cause problems. (Surprisingly, given the kind of people who congregate on Towles Street, there also was no evidence sufficient to support a finding of illegal drug use in or about the licensed premises.)
One LCSO sergeant recalled an occasion when he confronted Howell about problems in and around Mr. B's and, in the sergeant's opinion, Howell treated him rudely. Howell does not recall the incident. No other law enforcement officer testified to any occasion when Howell was anything but cooperative with law enforcement.
There was no evidence that the DABT counseled Howell on measures to take to reduce violence on his licensed premises. For example, the DABT could have required the Respondent to supervise and control the entire licensed premises, including both the building and grounds (including parking lot). The Respondent also could have been required to fully cooperate with law enforcement in its efforts to control crime in the area, including allowing LCSO complete access to the licensed premises. See Section 562.41(5), Fla. Stat. (1993). Instead, the evidence was that the LCSO complained to the DABT about Mr. B's on or about February 20, 1995, that the DABT inspected the premises on February 23, 1995, and that the DABT then initiated the proceedings that led to the issuance of the Emergency Suspension Order on or about March 16, 1995.
Since Mr. B's has been under the Emergency Suspension Order, there have been markedly fewer problems for law enforcement and law-abiding residents in the area. The people who had been congregating near Mr. B's and causing
problems either have found somewhere else to congregate or have dispersed for the time being. Mr. B's apparently attracted and served as a focal point for these people. It seems that suspending the Respondent's license has had a positive effect on the level of crime in the immediate vicinity. (However, some law enforcement officers seemed to support Howell's opinion that the people causing the problems near Mr. B's eventually will find another place to hang out and cause problems.) Clearly, the LCSO and many of the local residents would like to see Mr. B's closed permanently. But the reduction in violence and loitering after the Respondent's beverage license was suspended does not, in itself, prove that the Respondent was culpably responsible for violence and loitering that occurred while the licensed premises were open and operating.
Howell operates a package store, not far from Mr. B's but within the city limits of Fort Myers, and near another lounge. City police regularly patrol the area, and it has relatively few of the problems experienced on Towles Street. A more frequent and visible law enforcement presence on Towles Street also would reduce violence and disturbances there. Five to ten years ago, Mr. B's operated in the same location with fewer problems. In those earlier years, LCSO patrolled the area more frequently. In those days, parking laws were enforced more consistently, and LCSO patrol cars could drive down Towles Street without difficulty. When loiterers were encountered in the street, LCSO required them to either go inside Mr. B's or go home.
CONCLUSIONS OF LAW
Section 561.29, Fla. Stat. (Supp. 1994), provides in pertinent part:
The division is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when it is determined or found
by the division upon sufficient cause appearing 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, service, or consumption of alcoholic beverages, 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 . . ..
Violation by the licensee . . . of any laws of this state or any state or territory of the United States.
Maintaining a nuisance on the licensed premises.
* * *
(3) 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. If the licensee fails
to pay the civil penalty, his license shall be suspended for such period of time as the division may specify. . . .
According to the decision in Pic N' Save v. Dept. of Business Reg., 601 So. 2d 245, 249 (Fla. 1st DCA 1992), the burden of proof on the DABT in this case is to prove the charges by clear and convincing evidence. In addition, where the alleged violation is by employees or patrons, not only must the violation be proven by clear and convincing evidence, it also must be proven by clear and convincing evidence that the licensee is culpably responsible. Id. at 250-256.
In this case, the DABT proved that, on or about March 11, 1995, a patron of Mr. B's was caught drinking an alcoholic beverage after 2 p.m., in violation of Lee County Ordinance 76-9, as amended by Ordinance 79-1. Because of the potential for after-hours drinking to exacerbate the problems on Towles Street, an "hours of sale" violation at Mr. B's must be treated more seriously than might otherwise be the case. But the evidence in this case shed no light on the extent of Howell's responsibility for the violation (e.g., how long after
p.m. the violation occurred, whether the violation was flagrant, whether Howell was even on the premises at the time of the violation or, if not, how diligent he was in training his employees on how to prevent violations of the "hours of sale" ordinance.) The evidence also did not establish any other violations of the "hours of sale" ordinance (i.e., did not prove persistent violations of the ordinance.)
Clearly, Towles Street in the vicinity of Mr. B's is extremely violent, especially on weekend nights (and early morning.) But the Respondent is not obligated to enforce the law outside his licensed the premises, and cannot be held strictly liable for what happens on the street outside his licensed premises. Cf. Pic N' Save v. Dept. of Business Reg., supra. The exact extent of the licensed premises was not proven by the evidence in the case, and the evidence proved only one violent incident that clearly occurred on the licensed premises (the start of the violence on February 12, 1995.)
The reduction in the level of violence and loitering after Mr. B's beverage license was suspended does not, in itself, prove that the Respondent was culpably responsible for violence and loitering that occurred while the licensed premises were open and operating. It was not proven that the single "hours of sale" violation contributed to the level of noise and violence in and around Mr. B's. Nor was it proven that Howell allowed his licensed premises to be used to escape from law enforcement officials.
It also was not proven that the Respondent or his employees permitted patrons to engage in violence. Under Section 561.29(1)(a), Fla. Stat. (Supp. 1994), permission means actual or constructive permission. See Jones v. State Department of Business Regulation, 448 So.2d 1109 (Fla. 1st DCA 1984). Cf. Bach
v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980). The evidence did not prove that the Respondent "permitted" violence to occur on February 12, 1995, or at any other time or place.
Taken as a whole, the evidence did not prove that either the Respondent or his employees condoned or fostered violence either on or off the licensed premises. To the contrary, the greater weight of the evidence was that the Respondent has cooperated with law enforcement officials to control violence in and around his licensed premises.
As for the charge that the Respondent was "[m]aintaining a nuisance on the licensed premises," a literal reading of Section 561.29(1)(c), Fla. Stat. (Supp. 1994), might suggest that the Respondent could have his license suspended or revoked irrespective of his own personal fault. Without Mr. B's, Towles Street in the vicinity does not appear to have the level of activity that has been such a public nuisance with Mr. B's (although it is possible that the public nuisance would just move somewhere else if Mr. B's stayed closed.) But the law developed in connection with Section 561.29(1)(a), Fla. Stat. (Supp. 1994), makes it clear that Section 561.29(1)(c) also must be read to require proof of culpable responsibility by the licensee as a result of his own negligence, intentional wrongdoing or lack of diligence in order to warrant discipline of his license. See Pic N' Save v. Dept. of Business Reg., supra, at 250-256, and cases cited in it. As previously explained, in this case proof of culpable responsibility was insufficient.
Section 561.58, Fla. Stat. (1993), authorizes the DABT to prohibit the issuance of a license for a particular location for up to two years, but only when the existing license for the location is revoked.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (DABT), enter a final order: (1) dismissing the charges in the Notice to Show Cause against the Respondent, Edward Lee Howell; and (2) also dismissing the Notice to Show Cause seeking to impair the licensed location owned by the Respondent, William A. Bell.
RECOMMENDED this 21st day of April, 1995, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON 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 21st day of April, 1995.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 95-1403 and 95-1404
To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact:
Petitioner's Proposed Findings of Fact.
Accepted and incorporated.
Accepted and incorporated to the extent not subordinate or unnecessary. (However, the reputation attached to licensed premises actually applies not only to the licensed premises but also to Towles Street and the area surrounding Mr. B's.
First sentence, rejected as not proven. (Many of the 176 calls on DABT Ex. 3 were not made from Mr. B's.) Second and third sentences, accepted and incorporated to the extent not subordinate or unnecessary. (However, it only was proven that a few of the violent acts actually were committed on the licensed premises.)
Accepted and incorporated to the extent not subordinate or unnecessary. (One of the questions for determination in this case is the extent of Howell's "affirmative duty.")
Rejected as not proven that the violent acts were committed by patrons or, if they were patrons, that they were committed on the licensed premises. Otherwise, the first sentence is accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, accepted and incorporated.
Accepted and incorporated to the extent not subordinate or unnecessary. However, in the public mind, "Mr. B's" describes not just the licensed premises but also Towles Street and the area surrounding Mr. B's.
First sentence, rejected as not proven that the initial service call reported the shooting of a patron. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven that the incidents described in the second sentence occurred during the investigation. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven that the 141 shell casings were recovered in the Respondent's "parking lot." (They were recovered from the immediate vicinity of Mr. B's, starting from the side of the building and extending for up to approximately 40 yards away, and including on the opposite side of Towles Street across from the licensed premises. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Last sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. (Nygaard warned Howell several times in 1990 before arresting him. Howell was tried and acquitted on a judge's ruling that it was not proven that the patron was drinking alcoholic beverages after hours. After Nygaard was reassigned to the East Zone in January, 1995, he again arrested Howell on similar charges, which Howell denies and which are still pending.)
Accepted but subordinate and unnecessary.
Accepted and incorporated.
Howell's Proposed Findings of Fact. (Howell wrote a letter from which findings arguably have been proposed, as indicated.)
Rejected as contrary to the greater weight of the evidence that the crimes described in the evidence did not "in the vicinity of" Mr. B's.
Accepted that the Respondent recently added a parking lot and incorporated to the extent necessary.
Accepted that, if they cooperate, the Respondent and LCSO can solve some of the problems, and incorporated to the extent necessary.
Bell's Proposed Findings of Fact. (Bell also wrote a letter. Much of the letter is argument but findings arguably also have been proposed, as indicated. For purposes of these rulings, the unnumbered paragraphs of Bell's letter are treated as consecutive, separate proposed findings.)
Accepted and incorporated.
Rejected as argument and as not supported by any evidence.
First sentence, accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, rejected as argument and as conclusion of law.
Accepted and incorporated that Howell called LCSO frequently to report crime. Rejected as not proven that none of the incidents involved Mr. B's, that all involved "just the neighborhood"; accepted and incorporated that many of the calls involved incidents occurring off the licensed premises. The rest is rejected as argument and as subordinate and unnecessary.
Rejected as not supported by the record that most of the alcoholic beverages drunk by people hanging around in Towles Street are from sources other than Mr. B's; accepted and incorporated that much is, and that all the liquor is. (Mr. B's has a Series 2-COP license.)
Rejected as argument, as subordinate and unnecessary, and as unsupported by any evidence.
Accepted and incorporated that LCSO has reduced patrols in the area, in part due to budgetary constraints but also in part due to the illegally parked cars that block Towles Street, and that Howell places many of the telephone calls reporting crime in the area. Otherwise, rejected in part as unsupported by any evidence, in part as argument and conclusion of law, and in part as subordinate and unnecessary.
Accepted and incorporated that reduced police presence in areas like Towles Street increases crime. Otherwise, rejected as argument, as subordinate and as unnecessary.
Accepted and incorporated that the DABT did not prove lack of due diligence. Otherwise, rejected in part as argument and conclusion of law, and in part as subordinate and unnecessary.
In part, rejected as contrary to the greater weight of the evidence (that only one of the violent crimes was reported to have originated in Mr. B's.) (See Findings of Fact 19 and 20.) Otherwise, accepted and incorporated in part. In part, rejected in part as argument and conclusion of law, and in part as subordinate and unnecessary.
Accepted and incorporated that the wounds were not received on the licensed premises. Otherwise, rejected as cumulative.
Accepted and incorporated that the evidence did not clearly identify either the victim or the assailant as being patrons. Otherwise, rejected in part as argument and conclusion of law, and in part as subordinate and unnecessary.
Accepted and incorporated to the extent not subordinate or unnecessary.
Cumulative.
Accepted and incorporated that Towles Street presents a difficult police problem and that increased patrols and manpower could help. Otherwise, rejected in part as unsupported by any evidence (the nine-block area), in part as argument, and in part as subordinate and unnecessary.
Accepted and incorporated that many people congregate in the streets and that policing them is made difficult by the congestion. Otherwise, rejected in part as argument and in part as subordinate and unnecessary.
17.-18. Cumulative.
Rejected that Tamayo's statement was naive. Accepted and incorporated that the problem could move elsewhere if Mr. B's were closed. Otherwise, argument, subordinate and unnecessary.
Generally accepted and incorporated to the extent not subordinate or unnecessary, or argument. However, Bell does not seem to acknowledge the serious problems faced by law enforcement in the Towles Street.
Rejected as contrary to the greater weight of the evidence that no problems occur before 2 a.m. Also, subordinate, unnecessary, and argument.
22.-23. Argument.
COPIES FURNISHED:
Thomas A. Klein, Esquire Chief Attorney
Department of Business and Professional Regulation,
Division of Alcoholic Beverages and Tobacco
The Johns Building
725 South Bronough Street Tallahassee, Florida 32399-1020
Edward Lee Howell 1348 Brook Hill Drive
Ft. Myers, Florida 33916
William A. Bell 19450 Tammy Lane
Ft. Myers, Florida 33917
Lynda L. Goodgame, Esquire General Counsel
Department of Business and Professional Regulation
Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
John J. Harris, Division Director Department of Business and
Professional Regulation, Division of Alcoholic Beverages and Tobacco
The Johns Building
725 South Bronough Street Tallahassee, Florida 32399-1020
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit to the Department of Business and Professional Regulation 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 consult with the to the Department of Business and Professional Regulation concerning its rules on the deadline for filing exceptions to this Recommended Order.
| Issue Date | Proceedings |
|---|---|
| Aug. 28, 1996 | (Agency) Stipulation; Consent Order filed. |
| Apr. 21, 1995 | Recommended Order sent out. CASE CLOSED. Hearing held 03/29/95. |
| Apr. 18, 1995 | Letter to JLJ from T. Klein (RE: list of exhibits that has been forwarded to DOAH) filed. |
| Apr. 10, 1995 | Letter to HEARING OFFICER from Edward Howell Re: License; Exhibits ; Letter to HEARING OFFICER from Wally Bell Re: Suspension of Mr. Howell`s license filed. |
| Apr. 07, 1995 | Petitioner`s Proposed Recommended Order filed. |
| Apr. 06, 1995 | Box of Exhibits filed. |
| Apr. 05, 1995 | Petitioner`s Exhibits filed. |
| Mar. 29, 1995 | CASE STATUS: Hearing Held. |
| Mar. 23, 1995 | Notice of Final Hearing (Video) sent out. (Video Hearing set for 3/29/95; 9:00am) |
| Mar. 23, 1995 | Order Consolidating Cases sent out. (Consolidated cases are: 95-1403, 95-1404) |
| Mar. 23, 1995 | Agency referral letter; Notice to Show Cause; Emergency Order of Suspension filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 21, 1995 | Recommended Order | Violence in area and one after hours sale. Only one violent incident actually on premises. Respondent's culpable responsibility not proven. Recommended Order dismiss charges. |
