The Issue Whether or not on or about October 31, 1975, the Respondents, Bossie Mae and Willie Mae Browdy, licensed under the beverage laws as a package store, and/or their agent, servant or employee, to wit: Bossie Mae Browdy did allow or permit the consumption of alcoholic beverages on their licensed premises, contrary to Rule 7A-3.05, Florida Administrative Code. Whether or not on or about November 1, 1975, the Respondents, Bossie Mae and Willie Mae Browdy, licensed under the beverage laws as Browdy's Mini Market with a 2-APS license to wit: Bossie Mae Browdy did allow gambling (card) on the licensed premises, contrary to Section 849.08, Florida Statutes and in violation of Section 561.29, Florida Statutes.
Findings Of Fact At present, and on October 31, 1975 and November 1, 1975, the Respondents, Bossie Mae and Willie Mae Browdy are and were the holders of a beverage license with the State of Florida, Division of Beverage number 69-299, 2-APS. On October 31, 1975, Eugene Fogel, a Division of Beverage enforcement officer entered the premises licensed by the State of Florida, Division of Beverage, which was operated by the Respondents at Avenue B on Chuluota Road, Oviedo, Florida. While in the store he observed an unknown black female consuming a beverage which was marked Millers High-Life. This consumption was taking place in the presence of the Respondent, Bossie Mae Browdy, and in the course of the consumption a conversation was taking place between the unknown black female and Bossie Mae Browdy. The bottle which Officer Fogel observed was marked with identifying information which the officer based upon his experience, felt indicated that it contained an alcoholic beverage. On November 1, 1975, officer Fogel returned to the licensed premises of the Respondents and entered into a card game in a porch like area which is immediately at the front of the store and connected to the store. This card game was between Fogel and several black males who were participating in a card game when he approached. The game took place over 45 minutes and money was exchanged at 25 cents a game for the winner, for a total amount of approximately $2.00. During the course of the game, Bossie Mae Browdy came to the door and looked out at the card game being played.
Recommendation It is recommended that the Respondents, Bossie Mae and Willie Mae Browdy, be fined in the amount of $100 for the offense as established through this administrative complaint. DONE and ENTERED this 24th day of November, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Curtis, Esquire Division of Beverage The Johns Building Tallahassee, Florida 32304 Carl Thompson, Esquire 25 South Magnolia Avenue Orlando, Florida 32801
The Issue Whether, under the facts and circumstances of this case, Respondent is guilty of the violation alleged in the Notice To Show Cause issued October 20, 1989 by the Director of the Division of Alcoholic Beverages and Tobacco, Department of Business Regulation and filed herein.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this case, OB's Restaurant and Lounge, Inc. held a Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division) license for the premises known as OB's Restaurant and Lounge (OB's), alcoholic beverage license number 74-2421 SRX, Series 4-COP, located at 913 Highway 17, Pierson, Volusia County, Florida. Christine Shuter O'Brien, president of OB's Restaurant and Lounge, Inc. owns 100 per cent of the stock in the corporation. Ms. O'Brien has owned and operated OB's since July 1989. Camiel Long, born July 3, 1969, who was 20 years of age on October, 1989, works with law enforcement investigators of District 12 of the Division, Daytona Beach, Florida, as an Investigation Aide in determining whether licensed establishments are selling alcoholic beverage within their licensed premises to persons under the age of 21 years. On Saturday, October 7, 1989, Long met with Investigator Ron Sullivan for the purpose of Sullivan explaining the procedure used to effect underage investigation. At this time, Sullivan explained to Long that he would enter a licensed premises first and Long was to follow a few minutes later. Upon entry of the licensed premises Long was to approach the appropriate point of sale and ask to purchase an alcoholic beverage. Long was instructed to carry his own personal Florida Driver's license and to present the driver's license upon request. Long's Florida driver's license depicted him as having a mustache. The photographs taken on October 7, 1989 depicts Long as being clean shaven, without a mustache. One of the targeted licensed premises for October 7, 1989 was OB's because of a complaint received from the local police department. At approximately 9:45 p.m. on October 7, 1989, Sullivan and Long arrived at OB's parking lot and Sullivan then entered OB's, with Long following in approximately five minutes. Kevin Cox was in charge of checking identification (ID) at the door of OB's to keep out underage persons, and was in fact checking ID's at the door of OB's on Saturday night, October 7, 1989. On Saturday night, October 7, 1989, at the time Long entered OB's and purchased the beer, the bar was quite busy, some customers were playing pool and a band was playing, as was normal on Friday and Saturday night On Saturday night, October 7, 1989 there were several signs over the entrance to the bar at OB's indicating that proper identification was required and that it would be checked When Long entered OB's, Cox was checking several other persons' ID cards, and did not stop Long to check his ID as he "skirted" around him because he appeared to be about the same age as those persons Cox was checking who were in the 24-25 year-old bracket according to their ID cards. After entering OB's, Long found a seat at the bar, sat down, and ordered a Budweiser beer from Christine Shuter O'Brien who was tending bar at that time, along with Lorraine Ware. Ms. O'Brien opened a long-neck 12 ounce bottle of Budweiser beer, an alcoholic beverage, and served the beer to Long who paid Ms. O'Brien for the beer. Ms. O'Brien did not question Long's age or require any type of ID from him before selling and serving him the beer. Upon receiving the beer and his change, Long turned and handed the beer to Sullivan, and Long left the premises. Sullivan identified himself to Ms. O'Brien and advised her that he had observed her sell an alcoholic beverage to a person under the age of 21 years. Sullivan then requested that they move to area where they could speak. After moving to another area, Sullivan presented O'Brien with a Notice to Appear, in lieu of arrest. Ms. O'Brien has had no previous Beverage Law violation in any establishment that she has owned, including one in DeLand and one in Illinois. Ms. O'Brien's policy concerning the serving of alcoholic beverages is that if someone appears to be of age (21 years or older), then it is not necessary to request an ID to confirm their age. Both Kevin Cox and Lorraine Ware was aware of this policy, as well as other employees. Lorraine Ware, through experience and having taken a course taught by the Division concerning serving underage persons, is aware that it is her responsibility to avoid serving an underage person alcoholic beverage. Ware has also received instruction from Ms. O'Brien not to sell alcoholic beverages to an underage person. Long's appearance on Saturday night, October 7, 1989 and on the day of the hearing (February 13, 1990), four months later, was very similar, except for his clothing, and would cause an ordinary prudent person to question whether he was 21 years of age or older. Long's appearance should have caused both Cox and Ms. O'Brien to require him to confirm his age by some type of identification. O'Brien's failure to require confirmation of Long's age before selling him the beer on Saturday night, October 7, 1989 showed a lack of due diligence on her part, notwithstanding her presumption that Cox had checked Long's ID at the door, or the fact that she had several signs posted concerning the checking of ID's.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the mitigating circumstances surrounding the sale, it is, therefore, RECOMMENDED that the Petitioner enter a Final Order finding Respondent guilty of a violation of Section 562.011(1)(a), Florida Statutes, and for such violation assess a civil penalty of $500.00. DONE AND ENTERED this 21st day of March, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 March, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6962 Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-2. Adopted in Findings of Fact 1 and 3, respectively. Adopted in Findings of Fact 4 and 5. Adopted in Findings of Fact 6 and 7. 5.-9 Adopted in Findings of Fact 8, 12, 13, 14 and 12, respectively. 10. Adopted in Findings of Fact 2, 15. 11.-15. Adopted in Findings of Fact 16, 8, 18, 9 and 18, respectively. 16 Rejected as not being supported by substantial competent evidence in the record. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-3. Covered in Preliminary Statement. Covered in beginning paragraphs. Covered in Preliminary Statement and in Findings of Fact 5. Adopted in Findings of Fact 5, as modified. Adopted in Findings of Fact 4 and 5, as modified. Adopted in Findings of Fact 7, 12 and 14, as modified, except for the last sentence which was rejected because O'Brien was not arrested but given Notice To Appear in lieu of an arrest. 9.-14. Rejected as being more of a restatement of testimony than proposed findings of fact, but if stated as proposed findings of fact then adopted in Findings of Fact 8, 9, 10, 12 and 17. COPIES FURNISHED: Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Harry Hooper, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399- Joseph A. Scarlett, Esquire 208 West Howry Avenue Deland, Florida 32720
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order suspending alcoholic beverage license number 39-0992, series 4-COP, for two years, beginning September 19, 1984, but also providing that the suspension will be lifted on the condi- tion that and so long as: The licensee gives assurances satisfactory to the DABT that it employ a qualified security guard during business hours for purposes of preventing the use, sale or delivery of illegal drugs and preventing illegal drink solicitations on the premises; The licensee prominently posts signs satisfactory to the DABT in content, form, and placement and easily visible to patrons and employees giving notice of the licensee's policy that violations of the law will be reported to the proper authorities and will result in termination of employees and exclusion of non- employees from the premises; The licensee and its employees enforce the policy described in subparagraph 2. above; The licensee gives assurances satisfactory to the DABT that it holds meetings with all employees at least once a week to reemphasize the policies set forth in subparagraph 2. above; The licensee screen all employees and prospective employees in an manner satisfactory to the DABT. RECOMMENDED this 28th day of November, 1984 in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 28th day of November, 1984.
The Issue Whether Respondent's beverage license should be suspended or revoked, or a civil penalty assessed, for an alleged violation of Sections 562.12 and 562.02, Florida Statutes, pursuant to Section 561.29, Florida Statutes, as set forth in Notice to Show Cause issued by Petitioner. The hearing was originally scheduled for December 8, 1977, but Respondent filed a motion for continuance which was granted by the Hearing Officer, and the hearing was rescheduled for January 18, 1978. Another hearing on that date precluded reaching the instant case and therefore the matter was again continued until January 30, 1978. At the hearing, Respondent moved to dismiss the charges on the ground that the Notice of Hearing issued by the Hearing Officer on November 21, 1977, was defective in that it did not adequately describe Petitioner's Notice to Show Cause or attach it to the Notice of Hearing. The motion was denied upon a determination that Respondent had adequately been placed on notice as to the nature of the offenses charged and due to the fact that the notice to show cause had been sent by certified mail to Respondent and that the receipt thereof on August 13, 1977, which reflected his signature, was not contested. Further, Respondent's motion for continuance indicates that his counsel was aware of the subject matter of the charges. Additionally, if such had not been the case, Respondent had more than ample opportunity during the periods in which the case was continued to seek amplification or clarification of the issues involved as set forth in the Notice of Hearing. Respondent also inquired as to whether Chapter 120, Florida Statutes, requires that the Hearing Officer have access to a hearing transcript prior to rendering a Recommended Order to the Petitioner. The undersigned Hearing Officer ruled that such a transcript is unnecessary under applicable law and regulation, specifically Rule 28-5.25(7), Florida Administrative Code, which provides that at a hearing during which the services of a court reporter have been retained, any party who wishes a written copy of the testimony shall order the same at his own expense. Upon inquiry by the Hearing Officer, both parties to the proceedings indicated that they did not intend to order a transcript of the testimony adduced at the hearing. Accordingly, the Hearing Officer advised respondent that the Recommended Order in this matter would be prepared without access to such a transcript.
Findings Of Fact Respondent, Harold V. Edwards, holds License No. 30-23, Series 1-COP, issued to him in the name of "Edwards Store,' Chattahoochee, Florida, and held the same at the time of the alleged violations charged by Petitioner in this matter. A series 1-COP license authorizes the sale of beer for consumption on the licensed premises only. (Petitioner's Exhibit 1, Testimony of Sams) At approximately 10:00 a.m. on August 15, 1976, Petitioner's beverage officer, Gary E. Sams, drove a paid informant, Guy Williams, to a place near Respondent's place of business where they met another beverage agent, Fred Miller, who was in a separate vehicle. At that time, Sams searched Williams and determined that he had no alcoholic beverages or money on his person. Sams gave him $5.00. Williams then proceeded to drive Sams' vehicle to Edwards' Store with Sams in a prone position in the back seat. Upon arrival, Williams entered the store and ordered a half pint of Seagrams gin from a short, chunky, heavy built, white woman behind the counter. He also purchased a beer. He observed the woman go through a door in the back of the store, and she thereafter returned with a sealed bottle labeled "Seagrams Extra Dry Gin." She gave him $2.20 change from a $5.00 bill which he had given her. Williams thereupon returned to the car outside and he and Sams returned to the area where Miller had been waiting. Sams opened the bottle and determined that it was liquor by its smell. He permitted Williams to take two drinks from the bottle and Williams determined that it was gin. Sams placed an identification label on the bottle which he and Williams signed and it was later placed in Petitioner's evidence room in their Tallahassee office. On some date between August 15 and August 29, 1976, Sams inspected Respondent's premises at which time Respondent's wife, Louise Edwards, signed a state inspection form. Sams noted that she met the general description of the woman who had sold Williams alcoholic beverages on August 15. Mrs. Edwards told Sams at this time that she and her husband were the only persons who worked at the store. Sams thereafter inserted her name on the identification label of the bottle turned over to him by Williams to reflect that she had been the seller of the alcoholic beverages. At the hearing, Respondent attacked the credibility of Williams based on what are considered by the Hearing Officer to be minor discrepancies in his testimony. It is found that his testimony, in conjunction with that of Sams, is sufficient to establish that Louise Edwards sold him a half-pint bottle of Seagrams Extra Dry Gin on August 15, 1978, at Respondent's licensed premises. (Testimony of Sams, Miller, Williams, Petitioner's Exhibit 2) On August 24, 1976, a warrant was issued by the Circuit Court of Gadsden County, Florida, authorizing the search of Respondent's premises, together with the curtilage and all outbuildings. On August 29, 1976, at about 10:30 a.m., Sams, Miller, and other beverage agents and county law enforcement officials entered Respondent's store at which time Sams served the search warrant on Louise Edwards. She went to the living quarters of the building behind the store and Miller heard her go down the hallway and close a door. Miller proceeded down the hallway and found that one door at the end of the hallway was locked. When Mrs. Edwards was asked if she had the key, she replied in the negative, stating that it was her daughter's room and that no one was allowed to go in. At that point, Miller opened the lock with a jackknife. In the room, the agents found a number of cases of alcoholic beverages containing some 252 bottles of assorted sizes and brands of whiskey, vodka, rum, and gin. The bottles were found in a paper sack which Mrs. Edwards said had been given to her husband by a friend and were "not for resale." The agents inventoried the contents of the room, placed identification tags on the items and placed the seized articles in the evidence room of Respondent at Tallahassee. Although the room where the liquor was found was once a separate building, it has been joined to the main building by means of the hallway and there was free access between the structures. Respondent was in a bed in the living quarters at the time of the search. (Testimony of Sams, Miller, Petitioner's Exhibits 1-4)
Recommendation That Petitioner impose a civil penalty of $500 against Respondent, Harold V. Edwards, under the authority of Section 561.29(1)(b) and (4), Florida Statutes, for violation of Sections 562.02 and 562.12, Florida Statutes. DONE and ENTERED this 15th day of February, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Francis Bayley, Esquire Department of Business Regulation The Johns Building Tallahassee, Florida 32304 Jack A. Harnett, Esquire Post Office Box 706 Quincy, Florida 32351 Charles Nuzum, Director Division of Beverage Department of Business Regulation State of Florida Johns Building 725 South Bronough Street Tallahassee, Florida 32304
The Issue Whether or not on or about April 3, 1979, Terwell, Inc., d/b/a Nite Gallery II, licensed under the Beverage Law, its servant, agent, or employee, one Rina Norman, did solicit Robert Hutter for the purpose of committing a lewd act, to-wit; fellatio, contrary to Section 796.07, Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about April 3, 1979, Terwell, Inc., d/b/a Nite Gallery II, licensed under the Beverage Law, its servant, agent, or employee, one Heather Lovell did commit a lewd act, to-wit; oral copulation on one Steven Lee Hobson, contrary to Section 796.07, Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about April 12, 1979, Terwell, Inc., d/b/a Nite Gallery II, licensed under the Beverage Law, its servant, agent, or employee, one Susan Edith Laursen, did commit a lewd act, to-wit; fellatio, on one Norman Eric Williams, contrary to Section 796.07, Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about July 20, 1979, Terwell, Inc., d/b/a Mite Gallery II, licensed under the Beverage Law, its servant, agent, or employee, one Connie Nadine Reeves did solicit Beverage Officers F. J. Dunbar and P. M. Roberts for the purposes of prostitution, contrary to Section 796.07, Florida Statutes, and Section 561.29, Florida Statutes.
Findings Of Fact The Respondent in this cause is Terwell, Inc. This corporation is the holder of beverage license No. 58-1134, Series 2-COP, to trade as Nite Gallery II at a business premises located at 1720 Lee Road, Orlando, Florida. This license is held with the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, which organization has the responsibility of the licensure and regulation of those several business entities within the State that sell alcoholic beverages. On April 3, 1979, Officer Robert T. Hutter of the Orlando, Florida, Police Department went to the licensed premises at 1720 Lee Road. Officer Hutter was in the company of Police Officer Barrett of the same department. The two officers entered the bar in an undercover capacity and sat down and ordered a beer. After a moment, the officers were approached by a female who was a dancer in the licensed premises. The dancer's name was Rina Norman and in conversation Norman asked the officers if they wanted a "blow job" for $25.00. (This expression pertains to an offer to commit fellatio.) Rina Norman was subsequently arrested by Officer Hutter and was allowed to go to the back of the licensed premises to a dressing room area and to change from her "go go" outfit into street clothes. The suspect, Rina Norman, had also been seen dancing as a performer on the licensed premises prior to her apprehension. On the same evening, April 3, 1979, Officer Barrett had been contacted by two females in the licensed premises and from his encounter with those individuals determined to arrest them for assignation to commit prostitution or lewdness. The officer went outside briefly and then reentered the licensed premises to look for the two suspect females. One of the areas which he examined in his search for the suspects was an area in which there are two booths with curtains across the front opening of the cubicles. These booths are located down a hall leading to the female dancers' dressing room area which is on the west side of the bar. In looking in one of the booths, Officer Barrett pulled hack the curtain and found a woman identified as Heather Lovell committing an act of fellatio on a man who was in the booth with her. Lovell was-wearing a "go go" costume at the time she was seen involved in this activity. She was placed under arrest and went to the dressing room area to put on street clothes after the arrest was effected. The dressing room area which Lovell used was the same area used by Rina Norman. Lovell had also been seen by Officer Barrett in the licensed premises at an earlier time on the evening of April 3, 1979. Officers Hutter and Barrett went back to the licensed premises in the company of Beverage Officers Wallace and Boyd on April 12, 1979. At that time, Officer Hutter went to the booth area spoken of before to investigate for lewd acts. When Officer Butter pulled back the curtain to one of the booths, he observed Susan Laursen performing fellatio on a man located in the booth with her. Laursen and the man were arrested and Laursen went back to the dressing room area mentioned before to change into her street clothes. Beverage Officers Dunbar and Boyd returned to the licensed premises on July 20, 1979, at around 11:35 p.m. for the purpose of investigating alleged prostitution which was occurring in the licensed premises. The two officers seated themselves inside the bar area and they were approached by Connie Nadine Reeves, who sat by them and asked them if they would like to have a private party in the back, which would include nude dancing and a "blow job", meaning fellatio. Officer Dunbar asked if this entertainment was free and Reeves replied that, "No, the 'blow job' (fellatio) is $25.00 and dancing is $10.00." Beverage Officer Roberts had not heard this overture from Reeves and Dunbar asked Reeves to repeat her statements, which she did. Roberts then went with Reeves to the back part of the area of the hallway and the two booths which have been mentioned before. Beverage Officer Dunbar went outside to pain the assistance of the other Beverage Officer and the local police officers for purposes of effecting an arrest of Connie Nadine Reeves. Roberts followed Reeves down the hallway and into one of the booths. Reeves had motioned Roberts to follow her to this location. Reeves repeated the statement that it would cost $25.00 for a "blow job" (fellatio) and Roberts gave her $30.00 and she replied that she would keep $5.00 for a tip. Roberts seated himself on a chair in the room and Reeves told him to "Go ahead and pull it out" and he replied that he was not turned on and that she should dance. Reeves took her clothes off and danced for a few moments and then there was some problem with the music and she yelled out of the room for someone to get the jukebox working. This problem with the jukebox occurred a couple of times. At this point, Roberts arrested Reeves for violation of Section 796.07, Florida Statutes, pertaining to lewd acts. In the interim, Beverage Officer Dunbar and the other law enforcement officers had entered or reentered the licensed premises and attempted to go up the hallway to the booth area and were confronted by a number of females in "go go" attire who tried to keep them from going into that area and in doing so stated that the area was private and was to be used by employees only, referring to the area of the booths. Officer Dunbar went back to the booth where Roberts had made his arrest and at this point Reeves was protesting her arrest and acting belligerent. Dunbar left that location and met Beverage Officer Wallace, who was talking to Ron Wells, a corporate officer of the Respondent. Wells was asked to go with Dunbar to try to convince Reeves to accompany the officers without further incident. The officers asked Wells if Reeves were his employee and Wells responded that she was. Wells was then told by Dunbar to straighten her out, meaning that if she did not get dressed they would take her into custody without clothing. Wells then talked to Reeves and she left and went to the dressing room mentioned before in this case and dressed herself. Reeves also stated that she was an employee at the licensed premises.
Recommendation It is, therefore, RECOMMENDED that the beverage license of the Respondent, Terwell, Inc., No. 58-1134, Series 2-COP, which allows the Respondent to trade as Nite Gallery II in a business premises located at 1720 Lee Road, Orlando, Florida, be REVOKED. DONE AND ENTERED this 10th day of March, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue is whether the facts alleged in the Notice to Show Cause in this case are true and whether those facts, to the extent that they are true, warrant revocation, suspension or other discipline of the license of Respondent. The Notice to Show Cause explicitly alleges several drug-related and one disorderly conduct violations on the licensed premises and implicitly alleges the Respondent's culpable responsibility for the violations under Section 561.29(1)(a), Florida Statues. The Notice To Show Cause also alleges that Respondent maintained the licensed premises as a place where controlled substances were illegally kept, sold, or used in violation of Sections 823.01 and 561.29(1)(e), Florida Statutes and Sections 893.13(2)(c) and 561.29(1)(a), Florida Statutes.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: At all times relevant hereto, the Respondent, Rene Tamer, held alcoholic beverage license number 23-07334, series 2-COP, for the licensed premises known as El Emperador, located at 36-38 Ocean Drive, Miami Beach, Florida. On January 27, 1986, Beverage Investigator Carlos Baixauli went to the licensed premises of El Emperador. While there, he saw a black latin female walk over to a dog that was lying on the floor. Baixauli heard the woman ask the dog in spanish if he (the dog) wanted to have sex. The woman then fondled the dog's penis for approximately 20 minutes. Night manager Luis Tamer was present when this incident occurred. On February 5, 1986, Investigator Baixauli, while inside of the licensed premises of El Emperador, arranged to purchase one gram of cocaine from a white latin male, known as El Indio (the Indian). El Indio told Baixauli that he needed the $60.00 "up front." When Baixauli expressed concern as to whether El Indio would return with the cocaine or his money, El Indio stated that he worked at El Emperador, was always around and could be trusted. Baixauli gave El Indio $60.00. El Indio left the premises, returned and handed Baixauli a small plastic package of cocaine wrapped in a white napkin. Baixauli opened the napkin and conspicuously inspected the package of cocaine by holding it up to approximately eye-level and tapping it with his fingers. Luis Tamer was present and behind the bar at the time. On February 10, 1986, Investigator Baixauli visited the licensed premises of El Emperador. While Baixauli was at the bar talking to on-duty manager Luis Tamer, El Indio went over and asked Baixauli if he wanted to buy some "yeyo," a Spanish term for cocaine. Baixauli agreed to purchase one gram of cocaine and gave El Indio $60.00. El Indio subsequently returned and again interrupted a conversation between Baixauli and Luis Tamer. El Indio handed Baixauli a matchbook, from which Baixauli removed a plastic package containing cocaine. Baixauli held up the package and showed to his partner Garcia. El Indio told Baixauli that he could be found at El Emperador between 2:00 and 4:00 A.M. performing clean-up duties and at 11:00 A.M. stocking the beer coolers or running errands for Rene Tamer. On February 12, 1986, Investigator Baixauli visited the licensed premises of El Emperador. While there, Rene Tamer asked Baixauli: "Are you still working for the Division of Alcoholic Beverages?", to which Baixauli feigned ignorance and replied that he did not know what Rene Tamer was talking about. Rene Tamer, Luis Tamer and other employees then briefly retired to the kitchen where Baixauli observed them "looking out" at him as if to get a better view. El Indio arrived at El Emperador at approximately 2:00 P.M. and began stacking beers and cleaning the premises. El Indio asked Baixauli if he wanted any cocaine and Baixauli handed him $60.00 in front of Luis Tamer. El Indio later returned and handed Baixauli a matchbook. Baixauli removed a plastic package containing cocaine from the matchbook, held it up while inspecting it and showed it to his partner, Garcia. Luis Tamer was at the front counter during the transaction. On February 13, 1986, Investigator Baixauli visited the licensed premises of El Emperador. El Indio asked Baixauli if he could bring him anything. Baixauli gave El Indio $60.00 for one gram of cocaine. At approximately 4:00 P.M. El Indio returned and handed Baixauli a plastic package containing cocaine, which Baixauli held up and tapped with his finger. Luis Tamer, the manager, was standing behind the bar and observed Baixauli's inspection of the cocaine. Luis Tamer smiled and said nothing. On February 17, 1986, Investigator Baixauli visited the licensed premises of Emperador. Baixauli went to the bar and struck up a conversation with Luis Tamer. El Indio went over and asked Baixauli if he needed anything, to which Baixauli replied "yes" and gave El Indio $60.00. El Indio returned with some cocaine while Baixauli was still speaking with Luis Tamer. Baixauli removed the plastic package of cocaine from the matchbook and held it up to inspect it. Once again, Luis Tamer just smiled. On February 24, 1986, Investigator Baixauli returned to El Emperador. Baixauli went over to off-duty employee Camaquay and struck up a conversation. El Indio approached them and asked Baixauli if he wanted any cocaine. Baixauli responded that he did and gave El Indio $60.00, at which time Camaquay started laughing and said that he had been told that Baixauli was a "Narc" and must be setting up El Indio. El Indio later returned to where Baixauli was seated at the bar talking to Camaquay and manager, Luis Tamer, and handed Baixauli a matchbook. Baixauli removed a plastic package of cocaine from the matchbook and held it up for inspection, tapping it with his finger. Neither Camaquay nor Luis Tamer said anything to Baixauli. Later on in the evening of February 24, 1986, Baixauli asked Camaquay if El Indio was coming back to El Emperador. Camaquay told Baixauli not to worry, because he, Camaquay, could get cocaine from the same source as El Indio. Baixauli, after obtaining change from Luis Tamer, gave Camaquay $30.00 for a half-gram of cocaine. Camaquay later returned and tossed a plastic package of cocaine onto the bar in front of Baixauli. Baixauli held up the bag at eye level and tapped it with his fingers in view of manager Luis Tamer and other patrons. On February 26, 1986, Investigator Baixauli went to El Emperador and asked Luis Tamer if Camaquay was in. Camaquay went over to Baixauli, showed him a plastic bag containing marijuana and asked if he wanted to smoke. Baixauli said no. Camaquay then went into the restroom from which Baixauli then smelled a strong odor of marijuana. Manager Luis Tamer asked Baixauli where Camaquay was and Baixauli told him that Camaquay was in the bathroom smoking marijuana. Later at El Emperador on February 26, 1986, El Indio approached Baixauli and asked if he needed anything. Baixauli gave El Indio $60.00 for some cocaine. El Indio later returned and gave Baixauli a matchbook. Baixauli removed a plastic package of cocaine from the matchbook, held it up and tapped it with his fingers. Luis Tamer was standing behind the bar looking at Baixauli and Camaquay was standing by the pool table looking at Baixauli. After Baixauli received his cocaine from El Indio on February 26, 1986, Camaquay approached several patrons playing pool and asked if they wanted to buy drugs. Camaquay showed them a plastic package of marijuana which he took from his pocket, in full view of Baixauli, and Luis Tamer the manager, who were all looking in his direction. After Camaquay's attempt to sell marijuana to the pool playing patrons, he approached Baixauli and asked if he could bring him anything. When Baixauli agreed, Camaquay left the premises and shortly returned, tossing a plastic package of cocaine onto the bar in front of Baixauli and Luis Tamer, who was standing behind the bar in front of Baixauli. Baixauli held up the plastic bag and tapped it with his fingers. On March 4, 1986, Investigator Baixauli returned to El Emperador. Luis Tamer yelled to El Indio that his "friends" were there. El Indio approached Baixauli and Baixauli gave him $60.00. While El Indio was out obtaining Baixauli's order, on-duty employee Camaquay went over to Baixauli and asked if he wanted to buy some cocaine. Baixauli said "yes" and handed Camaquay $30.00 over the bar. El Indio returned shortly with a plastic package containing cocaine. Baixauli held up the package and showed it to his partner, Garcia. Camaquay later returned and handed Baixauli a plastic package of cocaine. Baixauli raised the bag and tapped it with his fingers. On March 11, 1986, Investigator Baixauli visited El Emperador. Luis Tamer was present and tending the bar. El Indio approached Baixauli and asked him if he needed any cocaine. Baixauli said "yes" and gave El Indio $30.00 for a half gram of cocaine. El Indio later returned and handed Baixauli a matchbook containing a plastic package of cocaine. Baixauli performed his usual post-sale inspection of the cocaine by holding the package up to approximately eye-level and tapping it with his fingers.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED that a Final Order be issued revoking the alcoholic beverage license number 23-07334, series 2-COP, held by Respondent, Rene Tamer. DONE and ORDERED this 22nd day of August, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 22nd day of August, 1986. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Professional Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927 Mr. Rene Tamer El Emperador 36-38 Ocean Drive Miami Beach, Florida 33149 Howard M. Rasmussen, Director Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, Florida 32301 James Kearney Secretary The Johns Building 725 S. Bronough Street Tallahassee, Florida 32301 Thomas A. Bell, Esquire General Counsel 725 S. Bronough Street Tallahassee, Florida 32301
Findings Of Fact Respondent, Edna P. Smith, d/b/a Silver Tip Beer And Wine, holds Alcoholic Beverage License Number 69-465, Series Number 2-COP, to operate Silver Tip Beer And Wine at 1509 West 13th Street, Sanford, Seminole County, Florida. Due to her age and bad health, Respondent hired a manager named Joseph Lee Solomon (Joe) to operate the licensed premises and herself withdrew from the operation and supervision of the licensed premises approximately one to one and one-half years ago. Since then, Respondent's only contact with the operation or supervision of the licensed premises was to receive her profits from Joe. On or about October 22, l985, while he was actively engaged as the manager on the licensed premises, Joe did unlawfully aid, abet, counsel, hire or otherwise procure the sale/or delivery of a controlled substance as defined in Section 893.03, Florida Statutes, to wit: aided a patron, in selling marijuana to a third party, on the licensed premises, in violation of Sections 777.011 and 893.13(1)(a), Florida Statutes. On or about October 28, 1985, while he was actively engaged as the manager on the licensed premises, Joe did unlawfully aid, abet, counsel, hire or otherwise procure the sale and/or delivery of a controlled substance as defined in Section 893.03, Florida Statutes, to wit: aided a patron, in selling marijuana to a third party, on the licensed premises, in violation of Sections 777.011 and 893.13(1)(a), Florida Statutes. On or about November 6, 1985, while he was actively engaged as the manager on the licensed premises, Joe did unlawfully aid, abet, counsel, hire or otherwise procure the sale and/or delivery of a controlled substance as defined in Section 893.03, Florida Statutes, to wit: aided a patron, in selling marijuana to a third party on the licensed premises, in violation of Sections 777.011 and 893.13(1)(a) within Section 561.29(1)(a), Florida Statutes. On or about November 18, 1985, while he was actively engaged as the manager on the licensed premises, Joe did unlawfully possess and sell and/or deliver a controlled substance as defined in Section 893.03, Florida Statutes, to wit: sold and personally delivered marijuana to a third party, on the licensed premises in violation of Section 893.13(1)(a), Florida Statutes. On or about November 21, 1985, while he was actively engaged as the manager on the licensed premises, Joe did unlawfully possess and sell and/or deliver a controlled substance as defined in Section 893.03, Florida Statutes, to wit: sold and personally delivered cocaine to a third party, on the licensed premises in violation of Section 893.13(1)(a), Florida Statutes. On or about November 25, 1985, while he was actively engaged as the manager of the licensed premises, Joe did unlawfully possess and sell and/or deliver a controlled substance as defined in Section 893.03, Florida Statutes, to wit: sold and personally delivered cocaine to a third party, on the licensed premises in violation of Section 893.13(1)(a), Florida Statutes. On or about December 5, 1985, while he was actively engaged as the manager of the licensed premises, Joe did unlawfully possess and sell and/or deliver a controlled substance as defined in Section 893.03, Florida Statutes, to wit: sold and personally delivered cocaine to a third party, on the licensed premises in violation of Section 893.13(1)(a), Florida Statutes. On or about December 16, 1985, while he was actively engaged as the manager of the licensed premises, Joe did unlawfully possess and sell and/or deliver a controlled substance as defined in Section 893.03, Florida Statutes, to wit: sold and personally delivered cocaine to a third party, on the licensed premises in violation of Section 893.13(1)(a), Florida Statutes. The transactions referred to in paragraphs 3. through 10. above occurred in view of all patrons in the licensed premises at the time. In addition, patrons openly smoked marijuana, snorted cocaine and injected drugs hypodermically in front of Joe, the manager, during the time period from approximately October 22, 1985, through December 19, 1985. There was no need to hide these activities from Joe because he knew about them and condoned them. On December 19, 1985, Joe was arrested and was in possession of cocaine in violation of Section 893.13(1)(a), Florida Statutes. It was not proved that Respondent had actual knowledge of the violations described in paragraphs 3. through 10. and 12. above. Nor was it proved that she actually condoned them. But it was proved that Respondent was negligent in supervising her manager, Joe, and the operation of the licensed premises. Her negligence allowed the violations to take place easily and with impunity until her license was suspended.
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 69-465, Series 2-COP, held by Respondent, Edna P. Smith, d/b/a Silver Tip Beer And Wine, 1509 West 13th Street, Sanford, Florida. RECOMMENDED this 24th day of January, 1986, at Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1986. COPIES FURNISHED: Thomas A. Klein, Esq. Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Edna P. Smith 1900 West 18th Street Sanford, Florida 32771 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Recommendation Adequate grounds having been demonstrated by the Petitioner, it is therefore recommended the Respondent's license be revoked. DONE and ORDERED this 10th day of May, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William A. Hatch, Esquire Staff Attorney Department of Business Regulation The Johns Building Tallahassee, Florida 32304 Emmett Abdoney, Esquire First Financial Tower Suite 2115 Tampa, Florida 33602 Charles Nuzum, Director Division of Beverage Department of Business Regulation The Johns Building Tallahassee, Florida 32304
Findings Of Fact Respondent, C.S.G., Inc., d/b/a The Arena, holds alcoholic beverage license no. 62-427, Series 4-COP. The licensed premises is located at 4469 49th Street North, St. Petersburg, Florida. During the period relevant to this proceeding, Sam I. Ferrara, Jr. was the sole officer and stockholder of C.S.G, Inc. On November 19, 1980, prior to Ferrara's purchase of the C.S.G., Inc., Eugene O'Steen submitted a license application for transfer of alcoholic beverage license no. 62-427, from Edward Mickler, Jr. to C.S.G., Inc., showing O'Steen as the sole corporate officer and stockholder of C.S.G., Inc., and Ferrara as the manager. O'Steen's license application was not accepted as the application end accompanying documentation were incomplete. The initial application included a lease for the licensed premises signed by O'Steen over the whited-out signature of Sam I. Ferrara, Jr., dated October 9, 1980. O'Steen had negotiated the purchase of beverage license no. 62-427 from Edward Mickler, Jr., for $78,500. O'Steen intended to fund the purchase with a $2,000 down payment from personal assets and a $76,500 loan from the Central Bank of Tampa. However, O'Steen voluntarily withdrew his application on November 26, 1980, due to the possible filing of criminal charges which could have resulted in denial of the application. On the same day that O'Steen withdrew his application, Ferrara initiated a new application for transfer of alcoholic beverage license no. 62- 427. Ferrara's application was also in the name of C.S.G., Inc. showing Ferrara as the sole corporate officer and stockholder of this corporation. On December 2, 1980, Ferrara advised Petitioner's Beverage Officer Maggio that he, Ferrara, had negotiated the same contract to purchase beverage license no. 62-427, as had O'Steen. Said beverage license was to he purchased by Ferrara (C.S.G., Inc.) for a total of $78,500. A deposit of $2,000 had been made and a balance of $76,500 was due at closing on purchase of this license. Ferrara further advised that he (C.S.G., Inc.) was obtaining an $80,000 loan from the Central Dank of Tampa to finance the purchase of the beverage license and that he (C.S.G., Inc.) was obtaining a $20,000 loan from Attorney Matthews to reimburse O'Steen for remodeling expenses incurred on the licensed premises. On December 3, 1980, Ferrara submitted a personal questionnaire (PX-10) listing finances concerning the license application as follows: Central Bank of Tampa $80,000 Eugene O'Steen - [Crossed through] $20,000 John Matthews - $20,000 On December 3, 1980, Ferrara provided Beverage Officer Maggie with a completed license application (PX-9) together with a letter of commitment for a loan to C.S.G., Inc. in the amount of $80,000 signed by Orlando Garcia, President of the Central Bank of Tampa. This letter was dated December 3, 1980 (PX-1) On December 3, 1980, Ferrara was questioned by Beverage Officer Maggie as to the completeness and accuracy of his license application (PX-9) and his personal questionnaire (PX-10) Ferrara advised Maggie on that date that both referenced documents were complete and accurate. Additionally, on the same date, Maggie reviewed with Ferrara his answers to all questions and both of the referenced documents. Ferrara's answers contained in the referenced documents were sworn and made under oath. Section 7 of Ferrara's license application (PX-9) reads: List below the names of all those connected, directly or indirectly, in the business for which the license is sought: (This includes partner(s), spouse, director(s), stockholder(s), chief executive, limited and general partner(s), corporation(s), or any form of entity which is connected with the business. Name office (if corporation) or other title if any. Nature of interest including stock percentage. In response to this question, on his license application (PX-9), Ferrara identified himself as President, Secretary, Treasurer and 100 percent stockholder. No other person or entity was listed as interested directly or indirectly. Subsequent to December 3, 1980, Beverage Officer Maggio transmitted Ferrara's license application (Px-9) and related documentation to Petitioner's Tallahassee office with a recommendation that the application be approved. Thereafter, on December 5, 1980, C.S.G., Inc. was issued a temporary beverage license. The permanent beverage license, number 62-427, Series 4-COP, was issued on January 7, 1981. On December 1, 1980, prior to the letter of commitment from the Central Bank of Tampa (PX-1), and Ferrara's submission of his license application (PX-9) and personal questionnaire (PX-10), and also prior to Ferrara's oral statements to Beverage Officer Maggio, the Central Bank of Tampa issued a loan closing statement (PX-8) concerning C.S.G., Inc.'s (Ferrara) $80,000 loan. This loan closing statement (PX-8) reflected an $80,000 loan to C.S.G., Inc. and P & O, Inc. jointly, not solely to C.S.G., Inc. as indicated in the loan commitment letter (PX-1), Ferrara's oral statement, and Ferrara's license application (PX-9). Said loan closing statement reflected collateral for this loan which included beverage license no. 62-427, Series 4-COP (C.S.G., Inc. license) and an alcoholic beverage license held by P & O, Inc. On December 5, 1980, a bank note, number 55-25549 (PX-6) was executed in the amount of $80,000 with C.S.G., Inc. and P & O, Inc. as co-makers. This note was signed by Ferrara on behalf of C.S.G., Inc., and by Charles and Olga Pitisci on behalf of P & O, Inc. Said note (PX-6) corresponds to the loan closing statement dated December 1,1980 (PX-8). Pursuant and subsequent to the execution of the bank note discussed above (PX-6), a cashier's check, number 312768 (Px-3), was drawn on the Central Bank of Tampa and issued December 5, 1980 to C.S.G., Inc. and P & O, Inc. jointly, in the amount of $70,278.25. This cashier's check represented the proceeds from the loan generated on bank note 55-25549 (PX-6). These proceeds were deposited in the Central Bank of Tampa to the account of C.S.G., Inc. On December 5, 1980, a separate cashier's check (PX-2) number 312502 was issued by the Central Bank of Tampa payable to Edward Mickler, Jr in the amount of 576,500. Funds for this check came from C.S.G., Inc.'s account. The purpose of this check (PX-2) was to pay the balance of the purchase price due on beverage license no. 62-427. On December 5, 1980, another cashier's check (PX-4) number 312503 was issued by the Central Bank of Tampa in the amount of 52,775.25, to C.S.G., Inc. This check represented the balance of the loan proceeds from the Central Bank to P & O, Inc. and C.S.G., Inc. jointly (See PX-2 and PX-6). Collateral pledged as security for said loan (PX-6) includes real property of P & O, Inc., a beverage license of P & O, Inc., the beverage license of C.S.G, Inc., together with certain equipment of C.S.G., Inc. P & O, Inc. and C.S.G., Inc. executed a mortgage to the Central Bank of Tampa to secure said lean (PX-6) and the Central Bank of Tampa, effective December 5, 1980, insured said lean in the amount of 575,000 as evidenced by a fund mortgage form (Px-5) Neither C.S.G., Inc., the Central Bank of Tampa nor Ferrara in his oral statements to Petitioner's representative, disclosed the fact that P & O, Inc. was a co-maker of the $50,000 loan (PX-6) from the Central Bank of Tampa, or that P & O, Inc. had pledged real property and a beverage license as collateral for said loan. At all times pertinent to this procedure, P & O, Inc. was owned by Charles Pitisci, Olga Pitisci and Carlten O'Steen. At all times pertinent Charles Pitisci, Olga Pitisci and Eugene O'Steen were corporate officers of P & O, Inc. The testimony of Ferrara and Eugene O'Steen established that a close personal relationship existed between Ferrara and the owners of P & O, Inc. Ferrara's testimony established that the Central Hank of Tampa demanded additional security, and that P & O, Inc. principals cosigned the note as a personal favor to Ferrara and not to obtain an interest in the licensed business. This evidence was not rebutted by Petitioner. Ferrara did not believe he was under any duty to disclose the role of the Pitiscis and P & O, Inc. with respect to the Central Bank of Tampa loan since he did not believe they had acquired any direct or indirect interest in C.S.G., Inc. or beverage license no. 62-427.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order dismissing the Administrative Complaint/Notice to Show Cause. DONE and ENTERED this 28th day of June, 1982 at Tallahassee, Florida. R. T. CARPENTER, 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 28th day of June, 1982. COPIES FURNISHED: John A. Beggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Paul Antineri, Jr., Esquire 601 E. Twiggs Street Tampa, Florida 33602 Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
