STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA DEPARTMENT OF BUSINESS ) AND PROFESSIONAL REGULATION, ) DIVISION OF ALCOHOLIC )
BEVERAGES AND TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 95-1430
) FRANCISCO JAVIER MOYA d/b/a ) LA CATRACHA FISH MARKET )
& RESTAURANT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on July 25, 1995, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Miguel Oxamendi, Esquire
Senior Attorney
Department of Business and Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-1007
For Respondent: Francisco Javier Moya
1355 West 44th Place Hialeah, Florida 33012
STATEMENT OF THE ISSUES
Whether Respondent committed the violations alleged in the Administrative Action?
If so, what penalty should be imposed?
PRELIMINARY STATEMENT
On February 27, 1995, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (hereinafter referred to as the "Department") issued a twelve-count Administrative Action against Respondent. Counts 1 and 2 of the Administrative Action alleged the following:
COUNT #1
On or about November 18, 1994, you, MOYA, FRANCISCO JAVIER, D/B/A: LA CATRACHA FISH
MARKET AND RESTAURANT, through your agents, servants, or employees, did keep and maintain a gaming table or room, or gaming implements or apparatus, inside your licensed premises, while you had actual management, dominion and control of said premises, for the purpose of gaming or gambling and to permit persons to play for money or other valuables at any game
whatever, in violation of Chapter 849.01 F.S.S. within Chapter 561.29(1)(a) F.S.S
COUNT #2
On or about November 18, 1994, you, MOYA, FRANCISCO JAVIER, D/B/A: LA CATRACHA FISH
MARKET AND RESTAURANT, through your agents, servants, or employees, did own, store, keep, possess or permit the operation of a slot machine or device to wit: one Cherry Master Slot Machine inside your licensed premises while you had actual management, dominion and control of said premises, in violation of Chapter 849.15(1) F.S.S. within Chapter 561.29(1)(a) F.S.S.
The remaining ten counts of the Administrative Action alleged that, on ten separate occasions in August and September of 1994 (August 31, September 1, September 2, September 6, September 14, September 15, September 16, September
22, September 28, and September 29)
you, MOYA, FRANCISCO JAVIER, D/B/A: LA CATRACHA
FISH MARKET AND RESTAURANT, through your agents, servants, or employees did keep or maintain a store, building or place, to wit: your licensed premises, which is resorted to by persons using controlled substances for the purpose of using, keeping and or selling said substances in viola- tion of Chapter 893.13(7)(a)(5) F.S.S. within Chapter 561.29(1)(a), F.S.S.
Respondent denied the allegations of wrongdoing made against him and requested a formal hearing. On March 23, 1995, the matter was referred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct the hearing Respondent had requested.
The hearing was conducted on July 25, 1995. At the outset of the hearing, the Department announced that it was withdrawing Count 2 of the Administrative Action.
During the evidentiary portion of the hearing, the Department presented the testimony of three witnesses: Sergeant Jorge Herrera of the Department; Detective Elio Oliva of the Hialeah Police Department; and Detective Antonio Llaneras, also of the Hialeah Police Department. In addition to the testimony of these three witnesses, the Department offered, and the Hearing Officer
received without objection, 14 exhibits (Petitioner's Exhibits 1 through 14) into evidence. Respondent testified on his own behalf. The only other evidence he presented was the testimony of his wife, Juanita.
Following the conclusion of the evidentiary portion of the hearing, the Hearing Officer advised the parties of their right to file post-hearing submittals and established a deadline for the filing of such submittals. The filing deadline established by the Hearing Officer was ten days from the date of the hearing. The Department and Respondent timely filed post-hearing submittals on July 31, 1995, and August 3, 1995, respectively. Both parties' post-hearing submittals have been carefully considered by the Hearing Officer. The Department's post-hearing submittal is in the form of a proposed recommended order and contains what are labelled as "findings of fact." Respondent's post- hearing submittal is in the form of a letter and contains factual assertions.
The "findings of fact" proposed by the Department in its proposed recommended order and the factual assertions made by Respondent in his letter are specifically addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:
The Licensed Premises
La Catracha Fish Market and Restaurant (hereinafter referred to as the "Restaurant") is an eatery located at 1255 West 46th Street, Hialeah, Florida, that sells beer and wine pursuant to alcoholic beverage license number 23-15943, series 2-COP.
The Restaurant offers both counter and table service.
The counter where patrons are served (hereinafter referred to as the "Counter") is situated toward the front of the Restaurant, to the right of the entrance.
Ownership and Operation of the Restaurant
Respondent is now, and has been at all times material to the instant case, the owner of the Restaurant and the holder of the license that authorizes the sale of alcoholic beverages on the premises.
Respondent and his wife, Juanita, are now, and have been at all times material to the instant case, actively involved in the operation of the Restaurant. They maintain a regular presence on the premises.
Among other things, Juanita mans the cash register behind the Counter.
From February of 1994, until the end of July of that year, when the Moyas were on an extended vacation, Respondent had "other people" run the business. When they returned from their vacation, the Moyas discovered that the Restaurant had a "new clientele."
The Undercover Operation
Elio Oliva and Antonio Llaneras are detectives with the Hialeah Police Department.
In August and September of 1994, they participated in an undercover investigation at the Restaurant. The investigation was initiated after the Hialeah Police Department had received complaints that illegal drug and gambling activities were taking place on the premises.
The August 31, 1994, Visit
The undercover operation began on August 31, 1994.
On that date, Oliva and Llaneras, dressed in civilian attire, went to the Restaurant to see if they would be able to make a controlled buy of narcotics.
Upon entering the Restaurant, they walked over to the Counter and sat down.
From their vantage point at the Counter, Oliva and Llaneras observed a number of patrons walk up to another patron, Antonio Rosales, 1/ hand him money and receive in return a clear plastic bag containing a white powdery substance.
After approximately 20 minutes, Oliva approached Rosales and asked him if he had any cocaine to sell. Rosales responded in the negative, but directed Oliva to another patron in the Restaurant, from whom Oliva purchased a clear plastic bag containing, what the patron represented was, a half of a gram of powdered cocaine. The transaction occurred at the Counter in plain view. There was no effort to conceal what was taking place.
Oliva subsequently conducted a field test of the substance he had purchased at the Restaurant that day. The field test was positive for the presence of cocaine. 2/
The September 1, 1994, Visit
Oliva and Llaneras returned to the Restaurant at around 8:00 p.m. on September 1, 1994. When they arrived, Rosales was at the Counter.
There was a telephone on the Counter near where Rosales was seated.
Rosales received incoming calls on the telephone that evening. (Employees at the Restaurant answered the telephone and handed it to Rosales, who then engaged in conversation with the caller.)
Upon entering the Restaurant, Oliva noticed Rosales at the Counter and walked up to him.
He told Rosales that he was interested in purchasing cocaine and then handed Rosales $20.00. Rosales thereupon pulled out from one of his pockets a clear plastic bag containing, what Rosales represented was, a half of a gram of powdered cocaine. He then gave the bag to Oliva. The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife was on the premises at the time of the transaction.
Oliva subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. 3/
The September 2, 1994, Visit
Llaneras went back to the Restaurant the following day.
When he arrived, Rosales was again at the Counter.
From his position near the entrance of the Restaurant, Llaneras, in a normal tone of voice, told Rosales that he wanted to buy a half of a gram of cocaine. Rosales thereupon signaled for Llaneras to sit down next to him.
Llaneras complied with Rosales' request.
Rosales then pulled out from one of his pockets a clear plastic bag containing a white powdery substance. Upon handing the bag to Llaneras, Rosales bragged, rather loudly, that it was "good stuff." The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent and his wife were behind the Counter at the time of the transaction.
Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the restaurant that day. The field test was positive for the presence of cocaine.
The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine.
The September 6, 1994, Visit
On September 6, 1994, Llaneras returned to the Restaurant, accompanied by Oliva.
On separate occasions, they each approached Rosales, who was seated at the Counter.
Llaneras' September 6, 1994, Purchase
When Llaneras approached Rosales, Rosales asked him if he "needed some more." Llaneras' response was to hand Rosales $20.00. Rosales then took out a folded napkin from one of his pockets and placed the napkin on top of the Counter. He proceeded to unfold the napkin. Inside the napkin were approximately 12 clear plastic bags. Each contained a white powdery substance. Rosales handed one of the bags to Llaneras. He told Llaneras that it was "good stuff." The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife was behind the Counter, approximately three to four feet from Llaneras and Rosales, at the time of the transaction.
Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine.
The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine.
Oliva's September 6, 1994, Purchase
When Oliva approached Rosales, he handed Rosales $20.00.
Rosales thereupon took out a folded napkin from one of his pockets and unfolded it on top of the Counter. Inside the napkin were approximately ten clear plastic bags, each of which contained a white powdery substance. Rosales handed one of the bags to Oliva. The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife was behind the Counter, approximately six feet from Llaneras and Rosales, and was facing in their direction at the time of the transaction.
The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of cocaine.
The September 14, 1994, Visit
Oliva and Llaneras next visited the Restaurant on September 14, 1994.
When they arrived at the Restaurant, Rosales was seated at the Counter talking on the telephone.
Oliva sat down at the Counter next to Rosales and handed him $20.00.
As he had done during his previous encounter with Oliva on September 6, 1994, Rosales took out a folded napkin from one of his pockets and unfolded it on top of the Counter. Inside the napkin was a clear plastic bag containing a white powdery substance. Rosales handed the bag to Oliva. The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife and the barmaids on duty were behind the Counter at the time of the transaction.
The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine.
The September 15, 1994, Visit
Oliva and Llaneras returned to the Restaurant on the following day, September 15, 1994.
Gaming Activities
During their visit, they heard a loud commotion in the kitchen and went to investigate. Upon entering the kitchen, 4/ they observed several persons, including Respondent and Rosales, gathered around a table participating in a game similar to roulette. The table was round and approximately three feet in diameter. It was filled with indentations painted either black or white. A funnel was held above the center of the table through which a marble was dropped. Participants in the game bet on whether the marble would come to rest on a black or white colored indentation. If the marble landed on a white indentation, the person dropping the marble would win the money that was in the pot. If it landed on a black indentation, the other player(s) would win. The game did not require any skill to play. Its outcome was based entirely on chance.
After entering the kitchen, both Oliva and Llaneras played the game.
Oliva's September 15, 1994, Purchase
While Oliva was in the kitchen, Rosales asked him if he "needed anything." Oliva indicated that he did and handed Rosales $20.00. In return, Rosales gave Oliva a clear plastic bag containing a white powdery substance. Oliva and Rosales each spoke in a normal tone of voice during the exchange. Respondent was among those who were in the kitchen at the time of the transaction.
The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine.
Llaneras' September 15, 1994, Purchase
Llaneras also made a buy from Rosales in the kitchen.
Rosales initiated the transaction. He asked Llaneras if he needed any cocaine. Llaneras responded in the affirmative and gave Rosales $20.00, in return for which Llaneras received from Rosales a clear plastic bag containing a white powdery substance. Llaneras and Rosales each spoke in a louder than normal tone of voice during the exchange. Respondent was in the kitchen a few feet away from Llaneras and Rosales when the transaction took place.
Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine.
The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine.
The September 16, 1994, Visit
The next day, September 16, 1994, Oliva and Llaneras came back to the Restaurant.
During their visit on this date, they each made buys from Rosales.
Oliva's September 16, 1994, Purchase
Rosales was at the Counter talking with Respondent's wife when Oliva approached him.
After greetings were exchanged, Rosales asked Oliva if he "needed anything," in response to which Oliva handed Rosales $20.00. Rosales then gave Oliva a clear plastic bag containing a white powdery substance. Oliva and Rosales each spoke in a normal tone of voice during the exchange.
The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine.
Llaneras' September 16, 1994, Purchase
Rosales was in the kitchen when Llaneras approached him and inquired about purchasing a half of a gram of powdered cocaine.
After Llaneras tendered the money needed to make the purchase, Rosales gave him a clear plastic bag containing a white powdery substance. Llaneras and
Rosales each spoke in a louder than normal tone of voice during the exchange. Respondent was in the kitchen, approximately three to four feet away from Llaneras and Rosales, when the transaction took place. Respondent's wife was also nearby.
Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine.
The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine.
The September 22, 1994, Visit
Oliva and Llaneras paid separate visits to the Restaurant on September 22, 1994.
During their visits, they each made buys from Rosales.
Oliva's September 22, 1994, Purchase
Rosales was at the Counter talking with Respondent's wife when Oliva walked up to him.
Rosales interrupted his conversation with Respondent's wife to ask Oliva if he "needed anything." In response to Rosales' inquiry, Oliva handed Rosales $20.00. Rosales then handed Oliva a clear plastic bag containing a white powdery substance. Oliva and Rosales each spoke in a normal tone of voice during the exchange. Respondent's wife was behind the Counter, approximately four to five feet from Oliva and Rosales, when the transaction took place.
The substance Oliva had purchased from Rosales at the restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine.
Llaneras' September 22, 1994, Purchase
Llaneras encountered Rosales as Rosales was leaving the Restaurant.
Rosales asked Llaneras if he "needed anything." Llaneras responded in the affirmative. Rosales, in turn, told Llaneras to wait at the Counter. Rosales then left the Restaurant. He returned shortly thereafter with a clear plastic bag containing a white powdery substance, which he handed to Llaneras. The transaction took place in plain view of Respondent's wife, who was approximately three feet away behind the Counter. Respondent was on the premises at the time of the transaction.
Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine.
The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine.
Llaneras' September 28, 1994, Visit
Llaneras next visited the Restaurant on September 28, 1994.
Rosales was seated at the Counter when Llaneras entered the Restaurant. He saw Llaneras enter and walked up to him.
Llaneras greeted Rosales by telling Rosales, in a normal tone of voice, that he wanted to purchase cocaine. He then handed Rosales $20.00. In return, Rosales gave Llaneras a clear plastic bag containing a white powdery substance. Respondent's wife was behind the Counter when the transaction took place. Respondent was on the premises.
Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine.
The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine.
Oliva's September 29, 1994, Visit
Oliva returned to the Restaurant on September 29, 1994.
He met Rosales at the Restaurant.
As was his usual custom when he conversed with Oliva, Rosales asked if Oliva "needed anything." As was his customary response to such an inquiry, Oliva handed Rosales $20.00. Rosales then stepped outside the Restaurant and retrieved from his car, which was parked in front of the Restaurant, a clear plastic bag containing a white powdery substance. When he returned to the Restaurant, he handed the bag to Oliva. The transaction occurred in plain view at the Counter. There was no effort to conceal what was taking place. Oliva and Rosales each spoke in a normal tone of voice during the exchange. Respondent's wife was behind the Counter at the time of the transaction. Respondent was on the premises.
Respondent's Responsibility for Drug Transactions on Licensed Premises
Although Respondent may not have been directly involved in any of the above-described sales of cocaine that took place at the Restaurant during the Hialeah Police Department's undercover operation and he may not have even been on the licensed premises at the time of some of these sales, given the persistent and repeated nature of the transactions and the open manner in which they were made, the inference is made that Respondent either fostered, condoned, or negligently overlooked them.
CONCLUSIONS OF LAW
The Department is statutorily empowered to suspend or revoke an alcoholic beverage license, such as the one held by Respondent, based upon any of the grounds enumerated in Section 561.29(1), Florida Statutes, provided that the proof establishing the existence of the such grounds is clear and convincing. See Pic N' Save v. Department of Business Regulation, 601 So.2d
245 (Fla. 1st DCA 1992); Evans Packing Company v. Department of Agriculture and Consumer Services, 550 So.2d 112, 116 (Fla. 1st DCA 1989). "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).
Subsection (1)(a) of Section 561.29, Florida Statutes, provides that the suspension or revocation of an alcoholic beverage license may be based upon the "[v]iolation by the licensee 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 permitting another on the licensed premises to violate any of the laws of this state."
"An alcoholic beverage licensee is not an absolute insurer of the propriety of all conduct and human activities upon [hi]s premises, but is held to a high degree of accountability for a violation of law occurring during the operation of its establishment." Pinacoteca Corporation v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 580 So.2d 881, 882 (Fla. 4th DCA 1991). While a licensee may not have his license suspended or revoked under subsection (1)(a) of Section 561.29, Florida Statutes, based upon a violation of law that was committed on the licensed premises through no fault of his own, the suspension or revocation of his license is warranted where he is culpably responsible for the violation as a result of his own negligence, intentional wrongdoing, or lack of diligence. See Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992) and the cases cited therein.
Where the violations committed on the licensed premises are flagrant and repeated over a relatively short period of time, an inference may be drawn that the licensee either fostered, condoned, or negligently overlooked the unlawful activity and, based upon such an inference, his license may be suspended or revoked pursuant to subsection (1)(a) of Section 561.29, Florida Statutes, notwithstanding that the licensee himself may not have committed the violations or even been present on the premises when the violations were committed. See Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992) and the cases cited therein. "A licensee may not remove [him]self from responsibility by not being present on the premises or by claiming ignorance of the repeated violations." G & B of Jacksonville, Inc. v. Department of Business Regulation, 371 So.2d 139, 140 (Fla. 1st DCA 1979); see also Pauline v. Lee, 147 So.2d 359, 362 (Fla. 2d DCA 1962)("[c]ertainly it is not the intent or purpose of the law that the licensee must be present during any and every violation of law by his employees in proceedings for revocation of an alcoholic beverage license" under subsection (1)(a) of Section 561.29, Florida Statutes).
The Administrative Action issued in the instant case, as modified by the Department's action in withdrawing Count 2 at hearing, alleges that violations of Section 849.01, Florida Statutes, (Count 1) and Section 893.13(7)(a)5, Florida Statutes, (Counts 3 through 12) were committed at the Restaurant and that Respondent should be held accountable and penalized for these violations pursuant to subsection (1)(a) of Section 561.29, Florida Statutes.
At all times material to the instant case, Section 849.01, Florida Statutes, has provided as follows:
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 s. 775.084.
At all times material to the instant case, Section 893.13(7)(a)5, Florida Statutes, has provided as follows:
It is unlawful for any person:
To keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for keeping or selling them in violation of this chapter.
Cocaine is a "controlled substance" pursuant to Section 893.03(2)(a), Florida Statutes. Its sale is made illegal by Section 893.13(1), Florida Statutes.
The record in the instant case clearly and convincingly establishes that, as alleged in Count 1 of the Administrative Action, Respondent violated Section 849.01, Florida Statutes, by maintaining in the Restaurant a "gaming table" that he and others used for purposes of gambling. 5/
The record in the instant case also clearly and convincingly establishes that, as alleged in Counts 3 through 12 of the Administrative Action, Respondent violated Section 893.13(7)(a)5, Florida Statutes, by either fostering, condoning or negligently overlooking the illegal sales of cocaine that occurred at the Restaurant on August 31 and September 1, 2, 6, 14, 15, 16, 22, 28 and 29, 1994, during the Hialeah Police Department's undercover investigation.
Inasmuch as these violations of Section 849.01, Florida Statutes, and Section 893.13(7)(a)5, Florida Statutes, that the Department has alleged and proven by clear and convincing evidence are violations that Respondent himself committed, the Department has grounds to suspend or revoke Respondent's alcoholic beverage license pursuant to Section 561.29(1)(a), Florida Statutes.
In determining the particular penalty the Department should select, it is necessary to consult Rule 61A-2.022, Florida Administrative Code, which contains the Department's "penalty guidelines." Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).
Rule 61A-2.022, Florida Administrative Code, establishes the "penalties that will be routinely imposed by the [Department] for violations." It provides that the "routine" penalty for a violation of Chapter 893, Florida Statutes, committed by the licensee is the revocation of his license. It further provides that the "routine" penalty for a violation of Chapter 849, Florida Statutes, committed by the licensee is "$250 per type of unlawful game and forfeiture of all unlawful gross income received from participants."
In its proposed recommended order, the Department proposes that Respondent's alcoholic beverage license be revoked for his having committed the violations of Section 849.01, Florida Statutes, and Section 893.13(7)(a)5, Florida Statutes, alleged in Counts 1 and 3 through 12 of the Administrative Action.
In view of the "penalty guidelines" set forth in Rule 61A-2.022, Florida Administrative Code, the Hearing Officer agrees that revocation is the appropriate penalty to impose in the instant case. 6/
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Department enter a final order finding Respondent guilty of the violations alleged in Counts 1 and 3 through 12 of the Administrative Action and penalizing Respondent therefor by revoking his alcoholic beverage license number 23-15943, series 2-COP.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of August, 1995.
STUART M. LERNER
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 11th day of August, 1995.
ENDNOTES
1/ The other patrons called Rosales, "Kiko."
2/ Although there was testimony that the substance was sent to the Metro-Dade Police Department's Crime Laboratory for analysis, no evidence was produced regarding the results of such analysis.
3/ Although there was testimony that the substance was sent to the Metro-Dade Police Department's Crime Laboratory for analysis, no evidence was produced regarding the results of such analysis.
4/ The door to the kitchen was open.
5/ Count 1 of the Administrative Action alleges that this violation was committed "on or about November 18, 1994." That the record establishes that the violation was actually committed on September 15, 1994, is not a basis upon which to find that this count of the Administrative Action should be dismissed.
Cf. Tingley v. State, 549 So.2d 649, 651 (Fla. 1989)("time is not ordinarily a substantive part of an indictment or information and there may be a variance between the dates proved at trial and those alleged in the indictment or information as long as: (1) the crime was committed before the return date of the indictment; (2) the crime was committed within the applicable statute of limitations; and (3) the defendant has been neither surprised nor hampered in preparing his defense").
6/ There are no circumstances present in the instant case warranting a deviation from the "penalty guidelines" prescribed by Rule 61A-2.022, Florida Administrative Code, and the imposition of a penalty less severe than revocation, which, according Rule 61A-2.022, is the "routine" penalty for a violation of Chapter 893, Florida Statutes, committed by the licensee.
APPENDIX TO RECOMMENDED ORDER
The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the Department in its proposed recommended order and on the factual assertions made by Respondent in his post-hearing letter to the Hearing Officer:
"Findings of Fact" in the Department's Proposed Recommended Order 1-4. Accepted as true and incorporated in substance, although not
necessarily repeated verbatim, in this Recommended Order.
Fifth sentence: Rejected because it lacks sufficient evidentiary/record support; Remaining sentences: Accepted and incorporated in substance.
To the extent that this proposed finding states that the napkin contained more than one plastic bag, it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.
Next to the last sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Remaining sentences: Accepted and incorporated in substance.
To the extent that this proposed finding states that, during their transaction, Oliva and Rosales "used a loud tone of voice," it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
11. (there is no proposed "finding of fact" 10) Rejected because it is contrary to the greater weight of the evidence.
12-13. Accepted and incorporated in substance.
Next to the last sentence: Rejected because it lacks sufficient evidentiary/record support; Remaining sentences: Accepted and incorporated in substance.
Accepted and incorporated in substance.
First and second sentences: Accepted and incorporated in substance; Third sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Factual Assertions in Respondent's Letter
First paragraph: The factual assertions made herein have been rejected because they lack sufficient evidentiary/record support.
Second paragraph: The factual assertions made herein have been rejected because they are contrary to the greater weight of the evidence.
Third paragraph: The factual assertions made herein have been rejected because they lack sufficient evidentiary/record support.
COPIES FURNISHED:
Miguel Oxamendi, Esquire Senior Attorney
Department of Business and Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-1007
Francisco Javier Moya 1355 West 44th Place Hialeah, Florida 33012
John J. Harris, Director Division of Alcoholic Beverages
and Tobacco
Department of Business and Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-1007
Lynda L. Goodgame, Esquire General Counsel
Department of Business
and Professional Regulation 1940 North Monroe Street 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 of time 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.
| Issue Date | Proceedings |
|---|---|
| Sep. 14, 1995 | Final Order filed. |
| Aug. 11, 1995 | Recommended Order sent out. CASE CLOSED. Hearing held 7-25-95. |
| Aug. 03, 1995 | Letter to DOAH from F. Moya (RE: advising that business was rented from 3/1/94 thru 8/26/94) filed. |
| Jul. 31, 1995 | Petitioner`s Proposed Recommended Order filed. |
| Jul. 25, 1995 | CASE STATUS: Hearing Held. |
| Jul. 20, 1995 | Notice of Appearance (from Miguel Oxamendi) filed. |
| Apr. 18, 1995 | Notice of Hearing sent out. (hearing set for 7/25/95; 10:30am; Miami) |
| Apr. 10, 1995 | (Petitioner) Response to Initial Order filed. |
| Mar. 31, 1995 | Initial Order issued. |
| Mar. 23, 1995 | Agency referral letter; Administrative Summary; Report Of Complaint; Administrative Action; Case Report; Request for Hearing Form filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 05, 1995 | Agency Final Order | |
| Aug. 11, 1995 | Recommended Order | Revocation of beverage license warranted where illegal drug sales and gambling took place on licensed premises. |
