Findings Of Fact Respondent, Everett R. Rogers d/b/a Circus Bar (Respondent), has been licensed by Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), to sell alcoholic beverages under License No. 39- 602, Series 2-COP, for licensed premises located at 1118 West Kennedy Boulevard, Tampa, Florida, at all times pertinent to this case. Respondent's most recent license expired by its terms on September 30, 1985. Respondent voluntarily closed the business operated under his license on or about February 2, 1985. On or about February 2, 1985, Respondent initiated personal bankruptcy proceedings which encompassed the business which he was operating at the licensed premises. The licensed premises and Respondent's license have been turned over to Respondent's trustee in bankruptcy. On February 2, 1984, three marijuana cigarettes were possessed, sold and delivered at the licensed premises with the knowledge of Respondent's bartender, Bobby Warner.2 On February 3, 1984, the licensed premises were visited by a person named Melvin Stusse and undercover police officer Paul Miller for the purpose of the sale of cocaine, although no sale took place. On February 3, 1984, three grams of marijuana were possessed, sold and delivered at the licensed premises. On February 3, 1984, undercover police officer Thomas Kinsella possessed marijuana on the licensed premises with the knowledge of bartender Warner. Kinsella asked Warner for something in which to place a baggie of marijuana, and Warner took Kinsella to the stockroom to give him a paper clip box for that purpose. On February 6, 1984, bartender Warner and patrons of the licensed premises gambled on the pool table in the licensed premises. On February 8, 1984, the sale of eight marijuana cigarettes was negotiated at the bar in the licensed premises but the delivery took place outside the premises and there was no evidence that the marijuana was possessed in the licensed premises. On February 9, 1984, three marijuana cigarettes were sold, delivered and possessed at the licensed premises with the knowledge of Respondent's manager, Joan Sammons. On February 13, 1984, the sale of approximately two and one-half grams of marijuana was negotiated at the licensed premises with the knowledge of bartender Warner. The marijuana was delivered outside the licensed premises, and there was no evidence that marijuana was possessed on the licensed premises. On February 24, 1984, six marijuana cigarettes were sold, possessed and delivered on the licensed premises with the knowledge of manager Sammons. On February 28, 1984, approximately two and one-half grams of marijuana were sold, possessed and delivered on the licensed premises with the knowledge of bartender Warner. On March 5, 1984, bartender Warner possessed, sold and delivered five marijuana cigarettes on the licensed premises. On March 6, 1984, manager Sammons sold, possessed and delivered approximately two grams of marijuana on the licensed premises. On March 7, 1984, manager Sammons purchased $50.00 worth of USDA food stamp coupons for $25.00 on the licensed premises. On March 19, 1984, manager Sammons purchased $150.00 worth of USDA food stamp coupons for $75.00 on the licensed premises. Also on March 19, 1984, four marijuana cigarettes were possessed, sold and delivered on the licensed premises with the knowledge of manager Sammons. On March 21, 1984, approximately 1.2 grams of marijuana were possessed, sold and delivered on the licensed premises. It was not proved that any of Respondent's employees were aware of this transaction. On March 30, 1984, Respondent's bartender, Steve Keller, possessed, sold and delivered approximately three and one-half grams of marijuana on the licensed premises. Manager Sammons also knew about this transaction. Respondent had a policy against illegal drug activity and gambling on the licensed premises. He enforced the policy when he was on the licensed premises. Respondent posted signs prohibiting gambling and told employees that they should evict patrons suspected of illegal drug activities or gambling. But Respondent did little or nothing to ensure that his policies were followed evenings and weekends when he was not present at the licensed premises. Respondent performed no background checks on his employees and continued to employ Sammons as his manager although he knew she had been arrested. Respondent had no written employment application or written instructions for his employees. Respondent did not polygraph his employees.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking alcoholic beverage license number 39-602, Series 2-COP, held by Respondent, Everett R. Rogers d/b/a Circus Bar, 1118 W. Kennedy Blvd., Tampa, Florida. RECOMMENDED this 19th day of December, 1985, in Tallahassee, Florida. L LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1985.
The Issue The issues are whether Respondent committed the offenses alleged in the Administrative Action filed by Petitioner against Respondent on August 7, 2007, and, if so, the penalties, if any, that should be imposed.
Findings Of Fact At the times relevant to this proceeding Respondent, Ray’s Market, Inc., d/b/a Ray’s Market was the holder of License No. 16-1362, Series 2 APS. The license authorizes Respondent to sell packaged beer and wine at the licensed premises, which is a convenience store located at 1707 NW 6th Street, Ft. Lauderdale, Florida 33313 (the licensed premises). At the times relevant to this proceeding Ibrahim Abdul-Kahir (the owner) was the owner of the licensee and the manager of the licensed premises. On July 18, 2007, Petitioner’s undercover investigative team performed a compliance check of the licensed premises while checking other licensed locations to determine whether the various stores were selling alcoholic beverages to under-aged patrons. Petitioner’s investigative team included the IA, Agent Boykin, Agent Gayle, and Special Agent Cobban. The IA acted as Petitioner’s underage operative on July 18, 2007. The IA is a female, born November 22, 1989. As of July 18, 2007, the IA was 17 years of age. At all times relevant to this proceeding, the IA operated under the direct supervision of one or more of Petitioner’s agents. The IA was instructed by Petitioner’s agents to attempt to purchase alcoholic beverages from Respondent. She was instructed to enter the licensed premises, retrieve an alcoholic beverage from the cooler, and attempt to purchase the alcoholic beverage. The IA was instructed to answer truthfully if anyone in the store asked her age. Petitioner’s agent gave the IA funds to make the purchase. On July 18, 2007, both Mr. Gayle and Ms. Boykin entered the licensed premises before the IA entered. This procedure provided security for the IA while she was inside the licensed premises and provided corroboration for the events that ensued. Both Mr. Gayle and Ms. Boykin had unobstructed views of the IA’s activities within the licensed premises and were able to hear the conversations described below. At the times relevant to this proceeding, the licensed premises had two cash registers open. Norma Williams, an employee of the licensee, was stationed at one cash register and the owner was stationed at the other. The two cash registers were located within sufficient proximity so that the owner could communicate with Ms. Williams and could observe the events occurring at her register. After Agents Gayle and Boykin were inside the premises the IA entered the licensed premises, walked straight to the cooler, and took out a bottle of Seagram wine cooler. Seagram wine cooler is an alcoholic beverage. The IA then walked to the cash register at which Ms. Williams was stationed and handed the wine cooler to Ms. Williams. At that juncture, the owner asked Ms. Williams whether she had checked the IA’s identification to verify the IA’s age. Ms. Williams responded to the effect that she knew the IA because the IA hangs out with her (Ms. Willliams’) nieces and cousins all the time. Ms. Williams then stated that she knew that the IA was over 18 years of age. The owner responded: “Okay. We’ll let them2 bail you out.” When the owner made that statement, he knew that the IA was about to purchase an alcoholic beverage and he knew that his employee had not verified her age by checking the IA’s identification. The IA paid Ms. Williams for the wine cooler and left the licensed premises. Immediately after she left the premises, the IA dropped the wine cooler, breaking the bottle and spilling the contents on the sidewalk in front of the licensed premises. Upon instructions from Petitioner’s agent, the IA immediately re-entered the licensed premises and told the owner what had happened. The IA asked the owner if she could replace the broken wine cooler. The owner permitted the IA to do so. The IA went to the cooler, retrieved a replacement wine cooler, and left the licensed premises. Respondent’s Exhibit 3 is the replacement wine cooler. The broken wine cooler was discarded. At no time on July 18, 2007, did Ms. Williams, the owner, or anyone else acting on behalf of the licensee ask the IA her age or for identification to verify her age. After the IA obtained the replacement wine cooler and left the licensed premises, Special Agent Cobban entered the licensed premises, identified himself as a special agent, and asked to speak to the owner of the licensed premises. Mr. Abul- Kahir identified himself as the owner of the licensed premises and showed Special Agent Cobban on his store’s security system a re-play of the purchase of the wine by the IA. Mr. Abul-Kahir told Special Agent Cobban that he told Ms. Williams to check the IA’s identification. Mr. Abul-Kahir was present at the formal hearing, but he did not testify. The clear and convincing evidence presented by Petitioner established that Mr. Abul-Kahir did not tell Ms. Williams to check the IA’s identification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of one violation of Subsection 562.11(1)(a) Florida Statutes as alleged in the Administrative Action. It is further recommended that the final order impose an administrative fine against Respondent in the amount of $1,000.00 and suspend Respondent’s license for seven consecutive days. DONE AND ENTERED this 16th day of June, 2008, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2008.
Findings Of Fact Sonny's Italian Restaurant and Pizzeria, Inc., d/b/a Sonny's Italian Restaurant, at 247 23rd Street, Miami Beach, Florida, Respondent or Sonny's, holds Beverage License No. 23-2197 Series 4-COP. Acting upon the request of, and in concert with, the Miami Peach Police Department, the Division of Alcoholic Beverages and Tobacco instituted an investigation of Sonny's during the period of April 25, 1981 through May 13, 1981. Much of the investigation was conducted by beverage officers performing undercover surveillance. On April 25, 1981, while operating undercover, Beverage Officer Luis J. Terminello, while in the lounge area at Sonny's, was offered oral sex by a patron known as "Wallflower" for $45. On April 26 Terminello engaged in a conversation in Sonny's lounge with a black female patron known as "Sherrill" who offered to commit oral sex for $25. On April 29 he again was approached in Sonny's by "Sherrill" who offered oral sex for $25. Later that same evening he engaged in conversation with a female patron known as "Lisa," who offered oral sex for $40. On the same evening, while engaged in conversation with a patron known as "Annette," he was offered oral sex for $50. On April 30, 1981, Terminello engaged in conversation with "Sherrill" in Sonny's lounge and was offered oral sex for $30. On May 2 Terminello engaged a patron known as "Maxine" in conversation and was offered oral sex for $20. He later learned Maxine is a male. On May 3, 1981 in Sonny's lounge Terminello engaged in conversation with Annette who offered him sexual intercourse for $50. All these conversations took place at the bar or in the vicinity thereof while the lounge and bar area were crowded with customers. These acts of prostitution were offered to be committed in Terminello's automobile or in the restroom at Sonny's. While Terminello was in Sonny's lounge during the investigation period he observed the females who had solicited him talking with other male patrons. He also saw them leave the lounge with male patrons and return some 45 minutes later. On the April 25 visit Terminello observed the barmaid, Susan, snorting a white power from a spoon, and, on at least three other occasions, he observed patrons at the dark part of the bar snorting a white powder. At other times he noticed what was recognized by him as marijuana smoke in the bar, lounge and restrooms and saw patrons smoking what appeared to him to be marijuana cigarettes. During the period of the investigation Terminello became known in Sonny's as a purchaser of controlled substances. On April 30 Robert Jones, a beverage officer, and Terminello purchased a substance they thought to be cocaine from a patron known as "Ice Cream." The transaction occurred in the men's room in the restaurant side of Sonny's and, following the transaction, "Ice Cream" lit a marijuana cigarette and passed it around to Terminello and Jones. Subsequent lab reports confirmed the cigarette to be marijuana but the substance bought was not cocaine. On 2 Hay, while in the bar area at Sonny's, Terminello was offered Quaaludes and he purchased six of them from a patron known as Don. On May 3, while engaged in conversation with Annette at the bar, Terminello said he was interested in getting cocaine. Annette told him she could get some from Susan, the barmaid, for $70 a gram. After he agreed on the price Annette went behind the bar, talked quietly to Susan, and both girls left the bar and went into the ladies' restroom. Terminello followed them to the door of the ladies' room and caught a glimpse of a package being handed by Susan to Annette. Terminello returned to the bar, where he was shortly joined by Annette, who delivered one gram of cocaine in exchange for $70. About an hour later, Terminello returned to Sonny's and arranged for another purchase of cocaine from Susan by Annette. After this transaction was completed Terminello, while sitting at the bar, called Susan over to order a beer and say "Thanks." She replied that she wasn't "holding" all the time but when she was he was welcome. Later the same evening in Sonny's, Terminello made two purchases of what he thought was cocaine from patrons "Charles" and "Ice Cream." Subsequent lab analysis of these purchases disclosed they were not cocaine. During the same investigative period Beverage Officer Carmen Gonzalez and Miami Beach Police Officer Joan Donnelly visited Sonny's on several occasions as undercover agents. On April 27, 1981, while seated at the bar Gonzalez and Donnelly negotiated a purchase of marijuana from bartender Gerald (Jerry) Hamburger. He told them he could provide marijuana at $30 an ounce. When they agreed he left the bar and walked toward the restaurant from where he shortly returned saying he would have to send out for it. Thirty to forty-five minutes later Jerry delivered the marijuana at the agreed price. Gonzalez and Donnelly returned to Sonny's on April 30 and told Jerry they would like to purchase marijuana and he introduced them to the pizza delivery man, "Bobby." When Bobby asked if they wanted anything, Gonzalez told him she was interested in purchasing marijuana. Bobby replied that he would have to go out and get it. He returned some thirty minutes later and motioned for the officers to accompany him to the lounge in the ladies' restroom. There he removed a packet of marijuana from his sock and gave it to Gonzalez who paid him $30. On May 1 Gonzalez and Donnelly returned to Sonny's. Jerry wasn't working so they asked the bartender, "Ray", where they could find Bobby. When told he was on the restaurant side of Sonny's, they proceeded to the restaurant area, where they were seen and greeted by Bobby. When Gonzalez asked if they could get marijuana, Bobby replied yes but he would have to go out for it. Some thirty minutes later Bobby took Gonzalez and Donnelly into the ladies' restroom in the lounge area where he delivered one ounce of marijuana and Gonzalez paid him $30. Gonzalez and Donnelly also became acquainted with two band members working in Sonny's called Waco and Termine. On May 3, Termine told them he could got good coke for them; and, when they agreed, he walked to the back of the restaurant and came out with another man. The other man couldn't provide a full gram but could provide three "dimes" for $10 each. He removed these foil- wrapped packets of cocaine from his pocket and handed them to Gonzalez, who paid him $30. On April 30, Gonzalez and Donnelly purchased a white powder, believed to be cocaine, from "Ice Cream." This transaction took place in the ladies' restroom in the lounge; and, following the sale, "Ice Cream" lit a marijuana cigarette and passed it around. While they were in the restroom "Diane" knocked on the door, came in and lit a second marijuana cigarette. The substance purchased from "Ice Cream," when tested, was found not to be cocaine. During the investigation, several patrons at Sonny's approached Gonzalez and Donnelly to sell them controlled substances. Joseph Chierico holds all of the stock in Sonny's. His son, Robert, serves as manager. According to their testimony, both are present at the establishment nearly every evening. Sonny's is open from 4:30 p.m. until 5:00 a.m., with deliveries of food on Miami Beach until 3:30 a.m. Each spends most of his time in the restaurant area but Robert, as manager, walks through the lounge and bar area frequently. Robert spends less than one-half of his time in the lounge side. Each testified he never saw any drugs brought into the licensed premises and when a customer complains about solicitation by a prostitute he tells the prostitute to leave. Richard Chierico testified that on many occasions he escorted patrons off the restaurant premises for use or sale of narcotics. If they hear about someone attempting to sell narcotics on the premises, they tell them to leave and not come back. Both Chiericos testified that they did not know Wallflower, Sherrill, Annette or Maxine; however, they did know a transsexual named Lisa who was not allowed on the premises because of suspicion of solicitation. Joseph Chierico testified he hired a band leader on a contract basis for a specified number of players and had nothing to do with the individual members of the band. Exhibits 5 and 6 were admitted into evidence as business records purporting to show the employees of Sonny' a each week. No hours worked are shown on these exhibits, and Joseph Chierico, through whom the exhibits were offered, could not explain them. These records are maintained by the bookkeeper who did not testify. He prepares the payroll from which Chierico writes the employee's checks on Sunday nights. These exhibits indicate that Jerry was on duty only one day during the week ending 2 May 1981; but, without a witness to verify the accuracy of this record, they are insufficient to rebut the testimony of Gonzalez and Donnelly that Jerry was on duty as bartender on at least two nights when marijuana was purchased. Joseph Chierico became the sole shareholder of Sonny's on 30 October 1980 and executed the Personal Questionnaire (Form UBR 710-L), (Exhibit 4), on 31 October. However, the Certificate of Incumbency and Declaration of Stock Ownership (Form DBR 759-L), (Exhibit 1), was not filed wish the petitioner until April 9, 1981. Joseph Chierico testified that he has been the operator of Sonny's off and on for the past 25 years; that if he suspects any employees of using or selling drugs he gets rid of the suspected employee; that he sees many patrons using drugs and when he does, he tells them to leave; and that he vaguely recalls an incident involving the license several years ago but nothing came out of it. On rebuttal, Exhibits 7 and 8 were introduced into evidence. In Exhibit 7, the licensee was charged with changing corporate officers in 1969 without notifying the Beverage Department and with failing to disclose that Joseph Chierico held an interest in the business. Exhibit 8 is a STIPULATION executed June 21, 1971 in which Barbara Chierico, President of licensee and estranged wife of Joseph Chierico, agreed to pay a $500 fine and submit a management contract to the Beverage Department for approval.
Findings Of Fact On November 14, 1986, undercover investigator Monte Griffin sat on the porch of the Corral Bar simulating the act of smoking marijuana with Terry Lea (R-19). Subsequently, Investigator Monte Griffin, while on the porch negotiated a deal with Terry Lea to purchase one gram of cocaine for $85.00. The $85.00 was delivered to Terry Lea in the parking lot of the Corral Bar next to the porch, and shortly thereafter one gram of cocaine was delivered to Monte Griffin in the same location (R-23, 24). On November 28, 1986, Investigators Noel and Monte Griffin purchased marijuana in the Corral Bar (R-26,27). On December 1, 1986, Investigators Noel and Monte Griffin entered the bar and observed Terry Lea tending bar. Terry Lea was standing behind the bar, taking money he served beers, working the cash register, and serving additional customers. Terry Lea produced a marijuana cigarette and invited the investigators to go out of the back part of the bar and smoke a marijuana cigarette with him. The investigators accepted the invitation and simulated smoking a marijuana cigarette supplied by Lea. (R-29, 30). Terry provided the officers with the name of a person who could provide them with marijuana (R-30, 31). Pursuant to this information the investigators purchased marijuana in the parking lot of the Corral Bar from one Herbert Blackburn (R-32, 33). On that same day the investigators, on the porch of the bar, simulated smoking a marijuana cigarette with Blackburn (R-33). On December 3, 1986, the investigators purchased a bag of marijuana from Terry Lea on the porch of the bar (R-36). On December 5, 1986, Monty Griffin again purchased a bag of marijuana from Terry Lea inside the bar (R-39). On that same date Terry Lea, while inside the bar, openly weighed marijuana in the bar on finger scales (R-40). On December 8, 1986, the officers again purchased marijuana from Terry Lea inside the bar (R-42). On the same day a juvenile by the name of Joseph Register entered the bar and exhibited two buds of marijuana and offered them for sale (R-42, 43). Subsequently, the officers purchased two buds of marijuana from Register in exchange for $10.00 within the bar (R-43). Register held those buds of marijuana in the air and in full view of everyone in the bar (R-44). Unlike previously described transactions, Patricia Freeze was in a position at this time where she would have been able to observe the marijuana being displayed by Registered (R-45). Noel Griffin stated that he had worked undercover in several dozen bars and that the Corral Bar was unusual because of the freedom with which drugs were bought and sold in and around the bar (R-45, 46). During the course of the investigation the officers saw other people on different occasions smoking marijuana in the bar (R-47). People in the bar told the officers that the bar was "cool" which means that it's permissible to be in the bar smoking marijuana (R-47). People sat out on the porch of the bar and used marijuana regularly and freely (R-48). A bar being "cool" refers to the person running the bar, that is, the owner not objecting to the sale and use of drugs (R-48). The officers stated there was no fear of ever having the proprietor "walk out and run us off or tell us to put the dope out or don't smoke" (R-48) Terry Lea was a part-time bartender and bouncer (R-51). Officer Noel Griffin stated "there was no paranoia either from patrons in the bar, people behind the bar or the police about openly smoking marijuana. There was no attempt ever made to conceal that type of activity." (R-74). Wildwood Police Chief and Chief Deputy Sheriff Greg Matthews told Officer Noel Griffin that they needed some help in the Corral Bar because there were drugs being openly sold and used there and "they wanted us to target the place." That was the basis for initiating the investigation in the Corral Bar (R-75, 76). On one occasion when Officer Monte Griffin was on the porch of the Corral Bar, Patricia Freeze came onto the porch and observed patrons smoking marijuana. The patrons had no reaction to her presence because this activity was a common practice. This was on a day in which no case was made (R- 113,114). On the dates that have been mentioned as to drug sales or drug usage, Patricia Freeze was usually present within the Corral Bar (R-133). Patricia Freeze was normally in the bar during the evening hours (R- 134). On December 20, 1986, law enforcement investigator Mike Bays of the Division off Alcoholic Beverages and Tobacco accompanied Sumter County Sheriff officers on a raid of the Corral Bar. Subsequent to the raid, while discussing the use of drugs within the Corral Bar with Patricia Freeze, Patricia Freeze said that she had told people about "smoking that shit in here." This is credible evidence that licensee, Patricia Freeze, was well aware of marijuana activity within her licensed premises (R-190). On January 7, 1987, Patricia Freeze spoke to Investigator Bays at the Ocala office of the Division of Alcoholic Beverages and Tobacco. Ms. Freeze complained that the undercover officers, Noel and Monte Griffin, had been smoking marijuana at her place of business and stated that she thought they should have been arrested along with everyone else. This indicates conclusively that Patricia Freeze was aware of marijuana smoking on her licensed premises during all times pertinent (R-191, 192). Patricia Freeze testified that she had never seen anybody smoking marijuana in her bar during the pertinent times. Her testimony is regarded as self-serving and unworthy of belief (R-210, 211). Patricia Freeze is present in her bar about 75 percent of the time they are open (R-224). Patricia Freeze believes that she keeps track of what's going on in the Corral Bar at all times (R-226). Terry Lea pleaded no contest to felony charge of selling marijuana and was sentenced to two years unsupervised probation and adjudication was withheld (R-252). Robert Hildebrand was employed as a police officer in the City of Wildwood during the pertinent times (R-311). Hildebrand often visited the Corral Bar and smelled marijuana smoke though he didn't smell it on a regular basis. When he thought that he smelled marijuana they would start parking other places as opposed to right in front of the bar (R-319). The foregoing facts coupled with the facts set forth by the hearing Officer and accepted by the Director demonstrate the sort of open and notorious sale, delivery and use of marijuana that would put any licensee on notice that such activities were on-going within the licensed premises. This drug activity was not secretive but was out in the open and capable of being discovered with the exercise of any diligence on the part of Respondent. The porch area of the bar is a part of the licensed premises and was the preferred marijuana smoking area because it allowed patrons to observe approaching law enforcement officers. The Hearing Officer's gratuitous conclusion that the lounge catered to a working class clientele which are not the kind of patrons a licensee should typically expect to be involved in drugs is patently without evidentiary support in the record. It is clear from the record that Ms. Freeze had past experience with marijuana and was familiar with both the appearance of the drug and the smell of marijuana smoke. ADDITIONAL CONCLUSIONS OF LAW Before an alcoholic beverage license can be suspended or revoked, the record should contain substantial and competent evidence to support a finding that the licensee was culpably responsible for the violation as a result of his own negligence, intentional wrongdoing or lack of diligence. So where a licensee momentarily left his bar to run an errand and thereafter his bartender sold an alcoholic beverage to a minor, it would be inappropriate to seek to revoke the license of the licensee. Woodbury v. State Beverage Department, 219 So.2d 47 (Fla. 1 DCA 1969). Where, however, the evidence shows a persistent or recurring activity, the fact finder may infer that the licensee had knowledge. G.R.B. of Jacksonville, Inc. d/b/a/ Out of Sight v. State, 371 So.2d 139 (Fla. 1 DCA 1979), appeal dismissed, 379 So.2d 205 (Fla. 1979) and Golden Dolphin No. 2, Inc., v. State division of alcoholic Beverages and Tobacco, 403 So.2d 1372. In the latter case one of the customers of the Golden Dolphin testified that he had witnessed the type of activity charged occurring on several previous occasions. The court held this was sufficient evidence for a finding that the Golden Dolphin's corporate officers had knowledge that its employee was performing in an obscene manner as alleged. If evidence supports the conclusion that the licensee failed to exercise ordinary care in the maintenance of the licensed premises or supervision of his employees, he can be found negligent and his liquor license revoked. Lash, Inc. v. State Department of Business Regulation, 411 So.2d 276 (Fla. 3 DCA 1982). In the instant case the evidence clearly establishes that three patrons of the licensed premises sold marijuana and cocaine, both controlled substances, to undercover officers on the earlier described occasions. Each of these sales occurred on the licensed premises. With the exception of Terry Lea, none of the sales were made by employees or persons acting as employees of the licensed premises. There was no evidence that the licensees were personally involved in the drug activity. However, a licensee, granted a privilege to sell alcoholic beverages by the State of Florida, must exercise due diligence in his or her responsibility to prevent the sale, delivery and use of controlled substances on the licensed premises. It is specifically concluded that Ms. Freeze could not have been ignorant of the widespread, open and notorious sales that occurred and of the open and notorious use of marijuana within the licensed premises. Steps taken by Ms. Freeze after she learned action would be taken against her license, if she did take steps, to prevent a reoccurrence of the use of the premises for sale, delivery and use of controlled substances, are irrelevant to the events set forth in the Notice to Show Cause. Whether or not the kind of patrons who visited the Corral Bar were the types of persons that could typically be expected to be involved in drugs as a matter of conjecture which cannot not be determined from a study of the record. In any event it is concluded that the licensee knew or should have known of the use of her licensed premises for the sale, delivery and use of controlled substances and that between December 1, 1986 and December 20, 1986, the licensees did in fact keep and maintain a building which was resorted to by persons using, keeping or selling controlled substances in violation of Chapter 893, Florida Statutes, contrary to Section 893.13(2)(a)5, Florida Statutes, and that during the same time the licensees did keep or maintain a public nuisance; a shop, store, or building which was being used for the illegal using and keeping, selling, or delivering substances controlled under Chapter 893, contrary to Sections 823.10 and 561.29(1)(c), Florida Statutes.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Respondents be found NOT GUILTY of the violations charged in the Notice to Show Cause and that the charges be dismissed. DONE and ENTERED this 8th day of August, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1988.
The Issue The issue for consideration is whether Respondent's alcoholic beverage license should be disciplined because of the alleged misconduct outlined in the Notice to Show Cause filed by Petitioner.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent, Jose Manuel Acosta, was doing business at 425 Northwest 12th Avenue, Miami, Dade County, Florida, as La Romanita Cafeteria under a series 2-COP alcoholic beverage license number 23-03308. Orlando Huguet is an investigator with the Petitioner, DABT, and has had prior experience with the Coral Gables Police Department and as an investigator with the United States Air Force. During the course of his employment with the DABT, he has been involved in several undercover operations and is fully familiar with the appearance and properties of crack (rock) cocaine. He is also aware that it is a very addictive drug and that it is usually packaged in small cellophane bags but may come in other containers or not be packaged at all. During the period of mid-August to mid-October, 1987, Mr. Huguet, along with other law enforcement investigators (LEI) of DABT and agents with the Metropolitan Dade County Sheriff's Department and the Miami Police Department were involved in an undercover investigation of Respondent's place of business as part of an investigation of drugs in bars in Dade County. During the investigation, they would enter the premises in the afternoon or evening and attempt to purchase crack cocaine from the licensee, employees or patrons of the establishment. La Romanita's is primarily frequented by Spanish speaking customers. On August 28, 1987, Huguet entered La Romanita in an undercover capacity in the evening along with a confidential informant (CI). This confidential informant was utilized by Huguet in several undercover investigations. Huguet and the CI took seats at the bar counter and ordered drinks. Huguet observed the licensee, Jose Manuel Acosta, standing in front of him, behind the counter. Huguet overheard the CI ask Acosta if he (Acosta) had any drugs for sale today. Acosta commented that he had run out of drugs, but to try him tomorrow. Acosta continued to discuss drugs with Huguet, the CI, and other patrons. Subsequently, a black Latin male named Miguel approached Huguet and the CI and inquired if they were looking for drugs. Later on Huguet purchased cocaine ("perico" in Spanish) from Miguel outside the licensed premises. On August 29, 1987, at approximately 11:30 p.m., Huguet and the CI entered the licensed premises and observed the owner, Jose Manuel Acosta, sitting drown at a table with another man identified as Flaco. Huguet and the CI engaged Acosta in conversation which revealed that Acosta would provide one- half ounce of cocaine to the CI and Huguet at a future date. Subsequently, Huguet and the CI left the premises. On September 3, 1987, Huguet and the CI entered the establishment in the evening and approached the bar counter area and engaged in general conversation with a barmaid. Huguet observed a white Latin male, Tobacito, walk to the end of the bar counter, open a brown paper bag, and retrieve two pieces of suspected crack cocaine. Tobacito gave the suspected cocaine to a white Latin male in an open manner and the white Latin male gave Tobacito $20.00. Subsequently, Huguet instructed the CI to try to make a drug purchase from Tobacito. The CI approached Tobacito who reached into the same brown paper bag and took two pieces of rock ("piedra" in Spanish) cocaine and gave them to the CI in exchange for $20.00. Huguet witnessed this entire transaction and took the cocaine from the CI immediately after the drug transaction. Tobacito approached the table where Huguet and the CI were sitting, which is located on the east side of the premises. Tobacito negotiated a drug transaction with Huguet for $10.00 and then left the licensed premises, returning shortly thereafter with the cocaine. When Huguet received the piece of crack cocaine from Tobacito, he held it up to eye level, examined it, and then placed it in his front pocket. A short time later Huguet walked over to the bar counter, took a seat next to a patron named Warapito, and engaged in a general conversation about drugs. Warapito bragged that he sold the best rocks in town and stated they would enhance Huguet's sexual performance. During this conversation, Huguet retrieved the rock cocaine he had previously purchased and dropped it on the floor in front of several patrons. Warapito and another patron retrieved the cocaine and returned it to Huguet. This incident was observed by an employee, Papo, who is the son of the licensee, Jose Manuel Acosta. Thereafter, Tobacito came over to Huguet and Warapito and began to argue with Warapito over who sold the best rock cocaine. This conversation took place in front of several patrons and Papo. On September 4, 1987, Huguet entered La Romanita in the early afternoon and took a seat at one of the tables on the east side of the premises. Huguet engaged in conversation with an employee, Pepito, relative to cocaine. Pepito stated that he could get one-half ounce, but that he would have to make a phone call first since it was not on the premises. During this time, Huguet noted that Pepito did the duties and functions of an employee (serving patrons, working behind the counter, using the cash register and taking orders). Pepito proceeded to make the phone call and a short time later the licensee, Jose Manuel Acosta, entered the licensed premises carrying a large box which he gave to Pepito who took the box to the storage room. Within seconds Pepito exited the storage room, came to Huguet's table and handed him a baggie of cocaine wrapped in toilet paper. Huguet put the baggie on the table and unwrapped it to conf irm that it was cocaine. Huguet rewrapped the baggie, placed it in his right front pocket and handed Pepito $320.00. During this entire transaction, Huguet observed the licensee go by his table several times. On September 16, 1987, Huguet entered La Romanita at approximately 9:20 p.m. and observed that there were several patrons and two Latin female employees on duty. Huguet took a seat at a table located in the southeast area of the licensed premises and engaged in conversation with patron Tobacito. Huguet and Tobacito negotiated a cocaine transaction and Huguet gave $20.00 to Tobacito who exited the licensed premises, returning a short time later. Tobacito gave the crack cocaine to Huguet who held it up to eye level to examine. At this point, a patron, Jacquin, who was sitting at an adjacent table, offered Huguet a piece of aluminum foil in which to wrap the crack cocaine. Huguet took the foil from Jacquin and wrapped it around the cocaine. This transaction was observed by several patrons, as well as the two female employees. On September 18, 1987, Huguet entered the licensed premises and took a seat at the bar counter where he struck up a conversation with patron Tobacito. Tobacito asked Huguet if he wanted anything and Huguet responded that he was willing to purchase some cocaine. Tobacito stated that he had only one piece of crack cocaine left, but was willing to sell it for $20.00. Huguet agreed and Tobacito then left the licensed premises. Huguet approached Warapito and engaged in general conversation about cocaine. Warapito took a small piece of rock cocaine from his pocket and offered it to Huguet for $22.00. Huguet gave Warapito the $22.00 and in return received the rock cocaine. This transaction was observed by employee, Isabel, who had been waiting on the two patrons. Huguet noted that Isabel performed the functions and duties of an employee (waiting on customers, working behind the counter and using the cash register). A short time later Tobacito entered the licensed premises and handed Huguet a piece of rock cocaine. Huguet placed the cocaine on top of the bar counter and proceeded to examine it in plain view of employee Isabel. Huguet then placed the cocaine in a napkin, put it in his right front pocket, and paid Tobacito $20.00. On September 24, 1987, Huguet entered La Romanita and took a seat at the bar counter. Warapito approached Huguet and asked if he needed any rocks (cocaine). Huguet stated that he did and gave Warapito $20.00. This conversation took place in front of employee, Papo. Papo proceeded to leave the bar counter area, enter the women's restroom and lock the door. Another employee, identified as Chino, noted Papo's actions and advised Huguet that if Huguet ever wanted to "shoot up, snort up, or smoke up," that Chino would let him have the key to the women's bathroom. Huguet noted that Chino performed the duties and responsibilities of an employee (serving customers, working behind the counter and using the cash register). A short time later, Warapito reentered La Romanita and gave Huguet a large piece of rock cocaine. Huguet placed the cocaine on top of the bar counter, examined it, and proceeded to wrap it in a napkin in front of employees Chino and Alisa. Huguet stated that Alisa also performed the duties of an employee (waiting on customers, working behind the counter and using the cash register). Tobacito subsequently approached Huguet and handed him two pieces of rock cocaine which Huguet placed on top the bar counter and examined. He then wrapped the cocaine in a napkin. Alisa and Chino were in a position to observe this transaction as well. A short time later, Warapito and Tobacito began to argue over who sold the better rock cocaine. A few minutes later Huguet paid Tobacito $20.00 for the cocaine he had received and exited the licensed premises. On September 29, 1987, Huguet entered La Romanita and approached Tobacito who was sitting on a bar stool next to the counter. Tobacito told Huguet that he was sorry but that he had run out of rocks (cocaine). Huguet then called Warapito over to where he was sitting and asked him if he had any drugs. Warapito replied that he could get Huguet cocaine but would need $30.00 up front. Thereupon, Huguet handed him the money and Warapito exited the premises. This conversation took place in front of several patrons and an employee, Papo, who was standing behind the counter making change from the cash register. A short time later, Warapito entered La Romanita and handed Huguet two pieces of rock cocaine. Huguet took the cocaine, held it up to eye level to examine in front of several patrons and an employee, Chino, and then placed the cocaine in a napkin he had retrieved from the counter. On September 30, 1987, Huguet entered the premises and met with Warapito. Warapito offered to sell Huguet one gram of cocaine for $50.00 but stated that he would need the money up front. Huguet gave Warapito the money whereupon Warapito exited the premises. A short time later Huguet approached the bar counter and took a seat next to Tobacito. Tobacito advised Huguet that if he (Huguet) wanted any drugs that he (Tobacito) had two pieces of rock cocaine left and would sell them for $20.00. Huguet agreed to buy the cocaine whereupon Tobacito exited the premises. A short time later, Tobacito returned and presented the cocaine to Huguet in front of employees Alisa and Chino. Huguet took the two pieces of rock cocaine, examined them and made the comment that they were very dirty. Tobacito exclaimed that he had dropped the cocaine on the way back to La Romanita because he had been frightened when he had observed police officers nearby. Huguet then paid Tobacito the $20.00. A short time later, Warapito returned to the premises and stated that he had been unable to find any cocaine and returned the $50.00 to Huguet. On October 1, 1987, Huguet entered La Romanita and proceeded to the juke box area of the premises to have a conversation with Warapito. Warapito advised Huguet that he would try to obtain one gram of cocaine for him for $50.00. Huguet and Warapito discussed the drug purchase in further detail. Standing next to Huguet and Warapito was Jose Manuel Acosta, the licensee, who was in a position to hear the conversation. Subsequently, Warapito told Huguet that he thought he was a police officer. Huguet denied this allegation and then departed the licensed premises. On October 6, 1987, at approximately 12:15 p.m., Huguet entered La Romanita and approached Tobacito and Warapito at the bar where they were talking to employee Papo. Tobacito asked what Huguet wanted and Huguet responded that "twenty" would do. Huguet gave Tobacito the money and Tobacito exited the premises. Warapito subsequently told Huguet that he (Warapito) was going to secure a half gram for a friend of his and asked if Huguet wanted any cocaine as well. Huguet replied that he would like one gram and gave Warapito $50.00. A short time later, Tobacito reentered La Romanita and handed Huguet two rocks of cocaine in front of Papo. Huguet examined the cocaine at eye level, took a napkin from the bar counter and wrapped up the cocaine. A few minutes later, Warapito reentered La Romanita and gave Huguet back his money stating that he had been unable to locate any cocaine. All of the events referred to herein, with the exception of the drug purchase on August 28, 1987, took place on the licensed premises during business hours when other employees and patrons were present on the licensed premises. None of the employees or patrons who sold or delivered cocaine to Officer Huguet, or allowed others to do so, ever expressed any concern about any of the drug transactions and took no action to prevent or discourage drug transactions. The licensee, Jose Manuel Acosta, stated that he was neither present during most of the dates set out in the Notice to Show Cause nor did he hear or observe any drug transaction. He denied ever meeting or speaking with Officer Orlando Huguet about any cocaine transactions. He knew that drugs were easily obtainable in the area of town in which La Romanita was located, but did not believe that he had any drug problems on his premises. In light of the detailed testimony of Officer Huguet, which was recorded in his report, stating he and the CI spoke with Mr. Acosta on two occasions about purchasing cocaine and that on one other occasion Mr. Acosta was in a position to observe a cocaine transaction, Mr. Acosta's statements are not credible. Mr. Acosta did not perform polygraph examinations or background checks on his employees and did not use a security guard on the licensed premises. The premises contained no signs or other form of documentation revealing to patrons the policy of the management relative to drug possession, sale or usage. Instead, the only sign on the licensed premises stated that customers should not detain themselves if they were not going to consume. Mr. Acosta denied that Pepito, Isabel or Chino were his employees. Instead, he stated that he employed his wife, his son Papo, other relatives and occasionally people to help him lift things on his licensed premises. He did admit that Alisa was his employee for several weeks. His only policy concerning drugs was to tell his employees that it was illegal and to call "911" if there was a problem. He noted that he had received letters from the Division of Alcoholic Beverages and Tobacco but did not read them because he did not know English. At all times material to this case, Papo, Pepito, Isabel, Chino and Alisa were employees on the licensed premises of La Romanita. They performed the functions and duties of employees in that they served customers, worked behind the counter, waited on tables and used the cash register. The great majority of drug transactions related herein took place in plain view on the licensed premises of La Romanita. The exchanges of drugs and money in conjunction with the open conversations engaged in by employees, patrons and Officer Huguet demonstrated a persistent pattern of open and flagrant drug activity. The instances occurring at La Romanita were sufficiently open to put a reasonably diligent licensee on express notice that drug sales were occurring on the licensed premises.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the alcoholic beverage license held by Respondent, Jose Manuel Acosta, No. 23-03308, series 2-COP, be REVOKED. RECOMMENDED this 4th day of February, 1988, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1988.
