Findings Of Fact At all times material hereto, the Respondent, Larry Lyles, was the holder of Florida Beverage License No. 26-2105, license series 2ABS. The licensed premises to which this license was issued is Larry and Gail's Pool Hall, 306 West Eighth Street, Jacksonville, Florida. On August 11, 1982, Mr. Keith Bernard Hamilton, a beverage officer for the Division of Alcoholic Beverages and Tobacco, went to the licensed premises pursuant to an assigned drug investigation. Officer Hamilton, after entering the licensed premises, purchased a beer from Gail Thomas a/k/a Patricia Ann Thomas. Gail Thomas was tending bar. After purchasing the beer, Officer Hamilton sat in a chair approximately 20 feet from the bar, and a few minutes later, approached a young man named Larry and asked about buying some smokes". "Smokes" is a term commonly used to refer to marijuana. Larry asked him how much he wanted and whether he had the money with him. Officer Hamilton stated he wanted two (2) bags and that he did have the money. Officer Hamilton then gave Larry $10 and Larry walked over to a young man named Hamp. Larry handed Hamp the $10 in currency and Hamp handed Larry two small manila envelopes. This exchange took place approximately five feet from the bar in the presence of Gail Thomas. Gail Thomas was one of the owners of the bar. The conversation between Officer Hamilton and Larry was in a normal tone of voice and could have been easily overheard by Gail Thomas and others in the bar. After receiving the two () manila envelopes from Hamp, Larry handed them to Officer Hamilton. Later, lab analysis revealed that these two envelopes contained cannabis, a controlled substance under Chapter 893, Florida Statutes. On August 20, 1982, Officer Hamilton returned to the licensed premises. After entering, he purchased a beer from Gail Thomas and began playing pool. When Gail Thomas began cleaning a table near the pool table, he asked her if anyone had "smokes". She said no but that someone next door might. She then indicated she was going next door to get change. She left, and upon returning, she informed Officer Hamilton that a man next door had some "smokes". She then asked if he wanted her to get some for him. He said yes and gave her $20 in currency. She left and came back with two manila envelopes and two $5.00 bills as change. Later, lab analysis revealed that the two manila envelopes contained cannabis, a controlled substance under Chapter 893, Florida Statutes. On August 21, 1982, Officer Hamilton again visited the licensed premises, and upon entering, purchased a grape soda from Gail Thomas. He saw the young man named Hamp shooting pool and walked over to him and asked him about purchasing some smokes. Hamp said he had some real good stuff and that if he didn't like it, he would buy it back. Officer Hamilton then purchased one manila envelope from Hemp. The exchange took place in the presence of Gail Thomas, who was nearby cleaning tables. After the exchange, Hemp suggested to Officer Hamilton that he try some of the material in the envelope there in the bar. Officer Hamilton declined and Hamp told him "It's okay, Gail doesn't care". Later, lab analysis revealed that the envelope purchased from Hemp contained cannabis, a controlled substance under Chapter 893, Florida Statutes. At the time of each of the purchases on August 11, 20, and 21, 1982, Gail Thomas was the only bartender or person actually working in the licensed premises. Officer Hamilton never observed another employee or person supervising or maintaining in any way the licensed premises.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent's alcoholic beverage license be revoked. DONE and ENTERED this 30th day of June, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 30th day of June, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Larry Lyles 306 West Eighth Street Jacksonville, Florida R. R. Caplano, Captain Division of Beverage Post Office Box 5787 Jacksonville, Florida 32202 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Executive Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Respondent, Lopez Grocery, Inc., is the holder of alcoholic beverage license number 15-02358, series 2APS, for the premises at 214 Emerson Drive, N.W., Palm Bay, Brevard County, Florida. Serafin Lopez and his wife, Elena, are President and Vice-President, respectively and are sole owners of the business. On November 3, 1991, the Palm Bay Police Department was conducting surveillance of Lopez Grocery as a result of reports that it was selling alcoholic beverages to underage persons. Cpl. Kraynick, a seven year law enforcement officer, was assigned to the surveillance on the 3:00 p.m. to 1:00 a.m. shift. Cpl. Kraynick was positioned about 40 feet outside the store, at the edge of the woods, with a clear view of the cash register and clerk inside the store. The store is at the end corner of a small strip shopping center. The other stores were vacant at the relevant time. At approximately 7:00 p.m., the parking lot was empty and the store was well lit from within. Cpl. Kraynick observed a brown pick-up truck pull up to the store. A white juvenile female went in, brought a six-pack of beer to the counter, got cigarettes and exited. She went to the passenger side of the truck to speak with the passenger and reentered the store where she picked up several more loose beers and paid for her purchases. The clerk bagged the beer and made change without requesting identification. The juvenile left the store with the beer. Cpl. Kraynick's original instructions had been to simply conduct the surveillance and notify his partners to make a traffic stop and arrest. When he learned that the partners were called out, he pursued the brown pick-up in his vehicle, and made the stop about 1/4 mile from the store. As soon as he activated his lights, the pick-up pulled over. He obtained a driver's license from the driver, the same person who had purchased the beer, and he confirmed that she was sixteen. Cpl. Kraynick confiscated the beer, still cold, from behind the driver's seat. The passenger had stashed an opened beer in her purse, where it had spilled, leaving an empty bottle. After releasing the girls to their parents, Cpl. Kraynick returned to Lopez Grocery. When he returned, he found Mr. Lopez, who explained that his wife had gone to buy a lottery ticket. She returned around 7:45 p.m. and was arrested for selling alcoholic beverages to an underage person. At the hearing, Angela Theresa Valente, the girl who purchased the beer, unequivocally identified Ms. Lopez as the clerk who made the sale. At no time was she asked her age or was asked for identification by Ms. Lopez. Angela was 16 at the time of the sale; she was born on December 28, 1974. Her appearance is that of a teenager. Ms. Lopez denies that she made the sale and claims that she was away purchasing lottery tickets when the sale was made. She and her husband are the only employees. Ms. Lopez also denies that her store sells Coors Light beer, the loose beer confiscated by Cpl. Kraynick. The grocery does sell Michelob Light, the six- pack that was confiscated. Cpl. Kraynick observed Coors Light singles in the grocery cooler the night that the arrests were made. Ms. Lopez' testimony was substantially less credible than that of Cpl. Kraynick and Angela Valente, both of whom positively identified her as the person who made the sale. Ms. Lopez claimed to have witnesses who could establish that she was not at the store around 7:00 p.m. when the sale was made, but she did not produce those witnesses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondents' alcoholic beverage license # 15-02358, series 2-APS be suspended for 30 days and that a civil penalty of $500 be imposed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 1st day of September 1992. MARY CLARK 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 1st day of September 1992. COPIES FURNISHED: Nancy C. Waller, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Elena and Serafin Lopez 214 Emerson Drive Palm Bay, Florida 32907 Richard W. Scully, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Donald D. Conn, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007
The Issue This case concerns the issue of whether the Respondents' beverage license should be suspended, revoked or otherwise disciplined for permitting their licensed premises to be used for the purpose of prostitution and for gaining profit from that prostitution. At the formal hearing, the Petitioner called as witnesses, Beverly Fraley, Alfred Stone, and Raphael Grulau. The Respondents presented no evidence. The Petitioner offered and had admitted over the objection of the Respondent, one tape recording of conversations which occurred inside the licensed premises as a part of the undercover investigation by the Hillsborough County Sheriff's Office. Counsel for the Petitioner and counsel for the Respondents submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that these proposed findings and conclusions are inconsistent with the findings and conclusions contained in this order, they were considered by the Hearing Officer and rejected as not being supported by the evidence or as being unnecessary to the resolution of this cause.
Findings Of Fact At all times material to this proceeding, Katherine J. and Guy H. Sutton were the holders of a valid, current beverage license No. 39-1792, Series 2COP. This license was issued to a licensed premises called Guy's Tavern located on Highway 301, South, in Riverview, Florida. On May 12, 1983, Detective Beverly Fraley of the Hillsborough County Sheriff's Office, went to the licensed premises in an undercover capacity to investigate possible prostitution activity. On this particular evening, Detective Fraley was accompanied by two other detectives of the Hillsborough County Sheriff's Office in a backup capacity. Prior to entering the licensed premises, Detective Fraley was fitted with a body bug for the purpose of recording any conversations that she might have in the licensed premises during the course of the investigation. When Officer Fraley arrived, the two backup detectives were inside the licensed premises shooting pool. Upon entering the licensed premises, Officer Fraley went to the bar and ordered a drink. After obtaining her drink, she was approached by a white male, who called himself "Stogie." While talking with Stogie, another white male, who called himself "Turkey" approached Officer Fraley from behind and placed his arms around her. She had never met Turkey before. Officer Fraley pushed Turkey away and said "Keep your hands off the merchandise." Shortly after her encounter with Turkey, Officer Fraley began shooting pool with Stogie and the two undercover detectives. After a short time, she left the licensed premises with Detective Grulau and after a few minutes the two of them reentered the licensed premises. After reentering, Officer Fraley went to the ladies' rest room and when she came out, she was called over to the bar area by the owner, Guy Sutton, who was behind the bar. As Officer Fraley approached the bar, Mr. Sutton stated, "If you're going to fuck here you've got to pay me." Officer Fraley asked what he meant and he told her that she would have to pay him $5.00 for every trick" she took out of the bar. "Trick" is a slang or street term used to describe an act of prostitution. Mr. Sutton then identified himself as the owner and said that the other women in the bar also paid. Officer Fraley then gave Mr. Sutton a $5 bill. After paying Mr. Sutton, Officer Fraley turned to the bartender, Irene Springer, who was present during this conversation and asked if in fact the other women in the bar were required to pay. Irene Springer stated that the other women in the bar did in fact have to pay $5.00 per trick and a group of white females sitting at a table near the bar responded, "That's right honey." Later that evening, Officer Fraley left with the other undercover detective. When they returned, Guy Sutton was in the pool room area. Officer Fraley intentionally did not go over to Sutton. Shortly after she returned, Sutton came over to her and told her that she owed him another $5.00. He then told her that she would be better off paying him $25.00 per week rather than $5.00 per trick. He also stated that she had the potential to make $300 or $400 per week in his place. Guy's Tavern has a reputation in the community as a bar where prostitutes can be picked up.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered revoking Respondents' beverage license No. 39-1792, Series 2COP. DONE and ORDERED this 30th day of December, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 30th day of December, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Howard M. Rasmussen, 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
The Issue Whether or not on or about the 14th of March, 1976, Pearlie Mae Smith, a licensed vendor, did have in her possession, permit or allow someone else, to wit: Junior Lee Smith, to have in their possession on the licensed premises, alcoholic beverages, to wit: 5 half-pints of Smirnoff Vodka, not authorized by law to be sold under her license, contrary to s. 562.02, F.S.
Findings Of Fact On March 14, 1976, and up to and including the date of the hearing, the Respondent, Pearlie Mae Smith, held license no. 72-65, series 2-COP with the State of Florida, Division of Beverage. The licensed premises is located at 1013 West Malloy Avenue, Perry, Florida. On the morning of March 14, 1976, Officer B.C. Maxwell with the State of Florida, Division of Beverage acting on an informant's information, searched the informant to determine if the informant had monies other than the money that the officer had given him or any alcoholic beverages on his person. Once the informant had been searched and it was determined that the informant was carrying with him only the money that the officer had given him to purchase alcoholic beverages, the informant was sent into the subject licensed premises. The informant returned with a half-pint bottle of alcoholic beverage not permitted to be sold on the licensed premise and indicated that this purchase was made from one Junior Lee Smith. Later in the morning, around 11:30, officers of the State of Florida, Division of Beverage entered the licensed premises and an inspection of those premises revealed a bag containing 5 half-pint bottles of Smirnoff Vodka in the kitchen area of the licensed premises. This bag and contents were admitted as Petitioner's Exhibit #2. The 5 half-pint bottles of Smirnoff Vodka are alcoholic beverages which are not allowed to be sold under the series 2-COP license on the subject premises. When the officers entered, the same Junior Lee Smith was in the licensed premises and indicated that he was in charge of the licensed premises and had been selling alcoholic beverages for "quite some time" together with his wife, Pearlie Mae Smith, the licensee. The bag he indicated, had been whiskey that had been left over from the night before.
Recommendation It is recommended that based upon the violation as established in the hearing that the licensee, Pearlie Mae Smith, have her beverage license suspended for a period of 30 days. DONE and ENTERED this 19th day of December, 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: Larry D. Winson, Esquire Staff Attorney Division of Beverage 725 Bronough Street Tallahassee, Florida 32304 Mrs. Pearlie Mae Smith 1013 West Malloy Avenue Perry, Florida
The Issue Whether Respondent committed the offenses alleged in the notice to show cause and, if so, what disciplinary action should be taken.
Findings Of Fact The bar At all times pertinent hereto, respondent, Melba Mosca, held alcoholic beverage license number 23-00737, series 2-COP, for the premises known as 71 Bar and Grill (the "premises"), located at 1220 Normandy Drive, Miami Beach, Dade County, Florida. The investigation On January 28, 1994, Officer Luis King of the Miami Beach Police Department, operating undercover, entered the licensed premises as part of an investigation of illegal drug activity. The premises is a small bar, containing one main bar, a pool table, a pinball machine and a jukebox. At the time he entered, Officer King observed between 15 and 20 patrons, a female bartender, and another individual behind the bar, later identified as "Dave." At the time, Dave appeared to Officer King to be the manager or in charge of the premises since he had the keys to the register, full access to the bar and the remainder of the premises, and actively controlled the bartender and patrons. During subsequent visits, Officer King discovered that Dave was the son of the owner, respondent Melba Mosca, and his activities in the bar, from bartending, scheduling the bartenders, and ordering bar supplies and food, confirmed his employment and management status in the bar. 1/ That evening, Officer King observed one Phillipi Blanco (Flip), a known narcotics dealer, on the premises, and the pattern of his activities suggested to Officer King that Flip might be dealing narcotics. Accordingly, Officer King resolved to return to the premises on another occasion. On February 11, 1994, Officer King returned to the premises at or about 9:30 p.m., and noticed Dave, the only employee on the premises, tending the bar. Dave appeared very agitated that evening, consistent with being under the influence of some controlled substance, and exhibited some strange behavior, such as exposing his genitalia while working behind the bar. On one occasion that night, Dave locked himself in the men's restroom with unknown patrons for approximately one-half hour, leaving the bar unattended. That same evening, Officer King met with Eugene Scott, who he had met the previous night, in the men's restroom, and Scott offered to sell Officer King one plastic baggie of cocaine for $30. Officer King accepted, and paid Scott $30 in exchange for the cocaine. 2/ On February 12, 1994, Officer King returned to the licensed premises at or about 7:30 p.m. Officer King did not recall if Dave was on the premises that evening, but about 8:40 p.m. he approached Eugene Scott by the back door and asked Scott if he could purchase some more cocaine. Scott stated that he did not have any cocaine but that he did have some marijuana. In exchange for $10, Officer King purchased a baggie of marijuana from Scott. As noted, this transaction occurred near the back door, and was not observable from the bar. During the evening of February 19, 1994, Officer King returned to the licensed premises to continue his investigation. While at the premises, Officer King played pool with a patron known as Manuel Fernandez (Manny), who he knew from previous visits and during the course of that game asked Manny if he could purchase some cocaine. Manny refused. Later, Officer King observed Flip and an unknown patron enter the restroom. Officer King and Manny entered the restroom and Officer King asked Flip if he could buy some cocaine. Flip refused, because he "did not know " Officer King "well enough." Immediately after Flip left the restroom, Manny asked Officer King what he wanted and Officer King replied that he wanted to purchase $20 worth of cocaine. Officer King handed Manny $20 and a few minutes later Manny joined Officer King at the pool table and handed him a plastic baggie, secreted inside a matchbook, containing cocaine. Dave was in the bar at the time, but the proof fails to demonstrate that he observed or had the opportunity to observe any of these discussions or transactions. On March 1, 1994, at or about 7:45 p.m., Officer King returned to the licensed premises to continue his investigation, and during the course of that visit engaged Dave in a game of pool. While playing pool, Officer King was approached by a patron known as "Gennie," who Officer King had observed on the premises previously. Gennie asked Officer King if he needed anything and Officer King replied that he wished to purchase $20 worth of cocaine. Officer King gave Gennie $20 and Gennie approached Dave and asked if he had any cocaine. Dave replied that it would be a little while, and shortly thereafter he left the premises. A few minutes later Dave returned with an unknown male, entered the men's restroom, and locked the door. A few minutes later, Dave exited the restroom, and he and Gennie engaged in a hand-to-hand transaction. Gennie then went to the lady's restroom, and on her return handed Officer King a plastic baggie of cocaine and explained she had taken a "hit" before delivering it to him. Later that evening, Officer King asked Gennie if she could get him another $20 worth of cocaine. Gennie replied that would be "no problem," and approached Dave and asked him for another $20 worth of cocaine. Shortly thereafter, Dave and the unknown male again entered the men's restroom and locked the door. When he exited a few moments later, Dave went directly to Gennie and they again engaged in a hand-to-hand transaction. Gennie then went to the lady's restroom, and when she emerged a few moments later handed Officer King a small plastic baggie containing cocaine. Gennie again advised Officer King that she had taken a "hit" prior to delivery, as "her payment". On March 4, 1994, Officer King returned to the licensed premises to continue his investigation. Upon entering the premises Officer King went directly to the restroom and was followed by Scott. Scott asked Officer King if he "needed anything." Officer King told Scott he wished to purchase some cocaine, and later that he wished to purchase some marijuana and crack cocaine. Scott advised Officer King that it would be a while before he could get the cocaine, but that he could get the marijuana and crack cocaine immediately for $10 each. Officer King gave Scott $20, and Scott left the premises. A few minutes later, Scott returned to the premises and handed Officer King a plastic baggie containing marijuana and a rock of crack cocaine. Officer King then left the premises, but returned about 30 minutes later. While Officer King was playing pool with Dave, Scott returned to the premises, approached Officer King, and handed Officer King a plastic baggie containing cocaine. This transaction occurred openly, with no attempt by Scott to conceal the transaction from Dave. The owner's explanation Respondent, Melba Mosca, is 70 years of age, and has owned the 71 Bar and Grill since April 1993. According to respondent, she has been very alert to prevent drugs from being present on the premises, has signs posted in the bar prohibiting drugs, and has instructed her bartenders not to allow drugs and to phone the police if they see any drugs. Respondent further averred that in October 1993 she was hospitalized for an operation, and her ability to supervise the premises since that time was impaired. Notwithstanding, she was on the premises two to three times a day, and at shift change. According to respondent, her son Dave "watched" the premises for her when she was ill, but was not an employee. The testimony of Helia Mercado, respondent's nighttime bartender, was consistent with that of respondent. As heretofore noted in endnote 1, the testimony of respondent and Ms. Mercado that Dave was not an employee or agent of the owner was rejected as not persuasive or credible. Indeed, respondent's own testimony that Dave "watched" the premises for her, and Officer King's observation of his activities, compel the conclusion that Dave was an agent or employee of the owner. The testimony of respondent and Ms. Mercado that they had never observed any narcotics activity on the premises, as well as the efforts that were taken to discourage it, while of questionable credibility, stands unrefuted. Indeed, there is no proof of record that respondent was present on the premises when any of the transactions occurred that are the subject matter of the notice to show cause, and no proof that she or any of her agents or employees, except for Dave, were ever in a position to observe, much less observed, those or any other illicit activities on the premises. Under such circumstances, and given the limited number of transactions, the limited time of day at which they occurred, and the surreptitious nature of the majority of the transactions at issue, it cannot be concluded that respondent, based on the competent proof of record, fostered, condoned, or negligently overlooked such illegal activity.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the notice to show cause. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of April 1994. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April 1994.
The Issue This is a case in which the Petitioner seeks to suspend, revoke, and/or take other disciplinary action against the Respondent's alcoholic beverage license. The primary grounds for the proposed disciplinary action are that the licensee has permitted patrons on the licensed premises to sell cocaine on numerous occasions in violation of various statutory provisions. The specific allegations are set forth in a Notice To Show Cause dated February 27, 1989. An Emergency Order Of Suspension was served on the Respondent on February 27, 1989. The Respondent requested an emergency hearing, which was conducted on March 7, 1989. Both parties offered evidence at the hearing. Following the hearing the parties requested and were allowed until March 17, 1989, within which to file their proposed recommended orders. The Petitioner filed a timely proposed recommended order. The Respondent has not filed any post-hearing documents. The proposed findings of fact submitted by the Petitioner are specifically addressed in the appendix to this recommended order.
Findings Of Fact Based on the stipulations of the parties and on the evidence received at the final hearing, I make the following findings of fact: The Respondent, Ocean Drive Hotel Corporation, d/b/a/ Ocean Haven Restaurant, is the holder of Alcoholic Beverage License Number 23-3568, Series 2-COP, for a licensed premises known as Ocean Haven Restaurant, which is located at 155 Ocean Drive, Miami Beach, Dade County, Florida. The licensed premises are located in a neighborhood which is somewhat less than wholesome; a neighborhood in which there is a substantial amount of illegal drug related activity. It is a neighborhood in which it is not uncommon for police officers to observe people who have been previously arrested for drug violations. The Respondent corporation owns the licensed premises, as well as the hotel premises of which the licensed premises are a part. The Respondent corporation is owned by Mr. Heriberto Velasco. Mr. Velasco is the president of the Respondent corporation and he is the manager of both the hotel and the restaurant businesses. Mr. Velasco lives in the hotel with his wife, his mother, and one of his sons. Mr. Velasco takes most of his meals in the restaurant which comprises the licensed premises, and usually visits the licensed premises at least three times a day for that purpose. There is no evidence that he regularly spends any other time supervising activities in the restaurant. There are four employees in the restaurant that comprises the licensed premises. Two of those employees are Gloria E. Berlioz and Antonia Rodriguez de Alcina. The latter is also known by the name of Nora. Ms. Berlioz and Ms. Alcina have both been employees on the licensed premises for a year or two. Ms. Alcina is employed as a waitress. Ms. Berlioz is employed as a cook. During the course of an undercover investigation during the months of January and February of 1989, the following transactions involving controlled substances took place within the licensed premises: On January 10, 1989, a patron known as Loraine sold cocaine to Investigator Huguet. On January 18, 1989, a patron named Roberto Cantero sold cocaine to Investigator Huguet. On January 19, 1989, an unknown white Latin male patron sold cocaine to a patron named Tommy. On January 25, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. On January 26, 1989, an unknown Latin male patron sold cocaine to Investigator Huguet. On February 6, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. On February 7, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. On February 10, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet in two separate transactions. On February 10, 1989, a patron named Roberto Cantero also sold cocaine to Investigator Lerra. On February 17, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet, in two separate transactions. On February 17, 1989, a patron named Roberto Cantero also delivered cocaine to an unknown white male patron. On February 22, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. During the course of the vast majority of the drug transactions described in the preceding paragraph, the people involved in the transactions discussed the subject of drug transactions in normal conversational tones of voice. During the majority of those conversations, either Ms. Berlioz or Ms. Alcina was standing close enough to have heard the conversations. During some of the conversations, Ms. Berlioz or Ms. Alcina was standing immediately on the other side of the lunch counter, within two or three feet from the conversations. During the course of the vast majority of the drug transactions described in Paragraph 5, above, the drugs involved in the transactions were openly displayed on the table top or on the counter top in front of the participants to the transactions. In each of the transactions involving purchases by Investigator Huguet, the investigator attempted to be obvious about what he was doing by holding the drugs in front of his face to inspect them before putting the drugs in his pocket. During the vast majority of those transactions, Ms. Berlioz or Ms. Alcina was standing close enough to have observed the transactions. During some of the transactions, Ms. Berlioz or Ms. Alcina was standing immediately on the other side of the lunch counter within two or three feet from the drug transactions. One of the drug transactions took place while Mr. Heriberto Velasco was standing several feet away. All of the drug transactions described in Paragraph 5, above, took place within the licensed premises during business hours when employees and patrons were present on the licensed premises. None of the employees ever called the police or asked any of the parties to the drug transactions to leave the licensed premises. Mr. Heriberto Velasco was aware that the licensed premises are located in a neighborhood in which there is a high level of illegal drug activity. Nevertheless, he did not take any special precautions to prevent or detect drug activity on the licensed premises other than to tell the employees to let him know if they saw any drug activity. Mr. Heriberto Velasco has never asked the Division of Alcoholic Beverages and Tobacco for assistance or suggestions with respect to preventing or eliminating drug activity on the licensed premises, even though the Division of Alcoholic Beverages and Tobacco advises all licensees of the availability of such assistance. Mr. Heriberto Velasco did not have actual knowledge that drug transactions were taking place on the licensed premises. He is opposed to drug trafficking and he has not knowingly permitted sales of drugs in his hotel or on the licensed premises. He has instructed his employees in the hotel and in the restaurant to call him if they observe any drug related activity so that he can throw out anyone involved in such activity. He has thrown people out of the hotel when he suspected they were involved in drug related activities. The employees in the licensed premises never told him about any drug related activity on the premises. Mr. Velasco never observed any activity on the licensed premises that he thought was drug related activity. Mr. Velasco does not know what crack cocaine looks like. Mr. Eric Velasco is the 20-year-old son of Mr. Heriberto Velasco. The son lives at the hotel with his parents and helps with the management of the hotel and restaurant to the extent he can between going to college and working at another near-by job. Mr. Eric Velasco has never observed any activity in the licensed premises that appeared to him to be drug related activity. He does not know what crack cocaine looks like. In brief summary, the vast majority of the drug transactions described in Paragraph 5, above, took place in plain view within the licensed premises. The open exchanges of drugs and money in conjunction with the open conversations about drug transactions demonstrate a persistent pattern of open and flagrant drug activity. The subject drug transactions were sufficiently open that they would have been noticed by a reasonably diligent licensee.
Recommendation On the basis of all of the foregoing, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a final order in this case revoking the Respondent's alcoholic beverage license number 23-3568, series 2-COP, for the premises located at 155 Ocean Drive, Miami Beach, Dade County, Florida. DONE AND ENTERED this 19th day of April, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH 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 19th day of April, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1096 The following are my specific rulings on all of the proposed findings of fact submitted by all parties. Findings proposed by Petitioner Paragraph 1: Accepted. Paragraph 2: Rejected as subordinate and unnecessary details. Paragraph 3: Rejected as constituting subordinate and unnecessary details. Further, some details proposed in this paragraph are not supported by clear and convincing evidence. Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19: Accepted in substance, with many subordinate and unnecessary details omitted. Paragraph 20: Rejected as irrelevant. Paragraph 21: Accepted in substance. Findings proposed by Respondent (None) COPIES FURNISHED: Katherine A. Emrich, Esquire Assistant General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Gino P. Negretti, Esquire 44 West Flagler Street Miami, Florida 33130 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 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence and on the testimony of the witnesses at the hearing, I make the following findings of fact: The Respondent, Jamestown In The Grove Apartments Club, Inc., d/b/a Suzanne's In The Grove, (hereinafter referred to as "Suzanne's") holds alcoholic beverage license number 23-1193, license series 11-C. Respondent has held the subject license since December of 1971. For a number of years the Respondent operated at its present location in much smaller premises. Several years ago the buildings where Respondent was located were demolished and a highrise condominium building was erected on the site. Respondent obtained space in the new building and embarked upon a plan to create a larger and fancier facility then it had previously operated. The new improved facility began operations in May of 1983 under the present name of Suzanne's In The Grove. The new improved facility is, in the words of one of the witnesses, "... a high fashion, beautiful people-type disco nightclub in Coconut Grove." The property and furnishings for the new improved facility required an investment in excess of two million dollars. During the planning stages for the new improved facility which opened in May of 1983, Suzanne's retained the services of a consultant who was an expert in the planning and operation of limited membership clubs. The consultant worked with the management of Suzanne's in designing the layout of the premises and in instituting operational procedures designed to maximize the ability of management to control access into the premises. The concepts employed by the consultant were modeled on the procedures used at limited access private clubs on military bases. The premises were specifically designed to facilitate the limitation of access to members and their guests. To that end, the premises had a small doorway, had a desk for checking membership just inside the doorway, and had a narrow stairway that led from the reception desk to the main area of the club. Suzanne's also issued plastic membership cards embossed with the member's name in raised letters. The operations procedures included provisions for a doorman, at least one receptionist at the desk, and at least one employee at the top of the stairs. Often they had more than one employee at the desk and at the top of the stairs. Due to unexpected extremely large crowds of patrons when Suzanne's first opened, they also contracted for additional security personnel to assist their regular employees with access control. As part of the preparation for the opening of Suzanne's the management of the club formulated a set of written policies for employees. Included in these written policies were specific prohibitions against any conduct which would constitute a violation of the alcoholic beverage laws. Each employee was given a copy of these written policies and was required to read the policies and then sign a statement agreeing to comply with the policies and acknowledging that he or she would be fired for any violation of the policies. These policies included a specific prohibition against admitting anyone who was not a member or a bona fide guest of a member. Between the opening of Suzanne's and the dates of the violations charged in this case, Suzanne's had fired employees for admitting people who were not members. Prior to opening in May of 1983, Suzanne's also instituted a policy of requiring periodic polygraph examinations of all employees. The consultant helped them formulate the questions to be asked during the polygraph examinations. The polygraph examinations specifically covered questions as to whether the employee was aware of the members-only regulations, whether the employee had ever distributed a membership card without collecting a membership fee and turning the fee over to the club, and whether the employee had ever let anyone into the club who was not a member or a bona fide guest of a member. If the results of the polygraph examination indicated that an employee was being deceptive about whether he or she had admitted non-members to the club, the employee was terminated. The consultant also assisted the management of Suzanne's in the selection of key employees and participated in the interviews of those employees. From the date of opening through August 28, 1983, Suzanne's sold 3,025 memberships at $50.00 each. Since August 28, 1983, Suzanne's has taken in an additional $198,000.00 in membership fees. Because of the large amount of revenue generated by the sale of memberships, Suzanne's has always been very interested in strict enforcement of the members-only policy. It is in Suzanne's best economic interests to maintain strict enforcement because without such enforcement there would be no reason for anyone to buy a membership and Suzanne's would in all likelihood lose substantial membership revenues. Suzanne's entire marketing concept would have been ruined if people could get in easily without having a membership card. When Suzanne's first opened in May of 1983, all employees were required to attend a meeting at which an attorney specializing in alcoholic beverage law told them about the requirements of the liquor laws in general and about the special provisions of the liquor laws relating to 11-C licenses. All of the employees were specifically told that the sale of alcoholic beverages was restricted to members and their guests. The consultant employed by Suzanne's recommended an emphasis on access control at the door rather than a system of point of sale control because Suzanne's did not have an in-house credit or charge system, which is the best system to use for a point of sale control system. An in-house credit system was prohibitively expensive where membership dues were only $50.00 per person. A typical Dade County club with an in-house credit system has an annual membership fee of $460.00 in addition to an initial fee of $1,000.00 to join. Since the dates of the violations charged in this case Suzanne's has maintained its access control procedure at the door and has added a point of sale control system as well. The point of sale control includes imprinting the membership card on all sales slips. On August 28, 1983, two investigators of the Division of Alcoholic Beverages and Tobacco went to Suzanne's at about 2:20 a.m. They told the doorman ("Robert") that they were not members but that they wanted to go in and look around. The doorman let them in, but told them that if anyone asked they should say they came in with a member. Once inside the premises, each of the DABT investigators ordered and were served an alcoholic beverage. None of the bartenders or barmaids asked if they were members. On September 7, 1983, the same two investigators returned to Suzanne's at approximately 11:40 p.m. They walked past the doorman and other employees and entered the premises. No one tried to determine if they were members. Both investigators ordered and were served an alcoholic beverage. On September 10, 1983, two DABT investigators (one who had been on both prior occasions and one who had not been there before) went to Suzanne's. A line of approximately 300 people were waiting outside to enter Suzanne's. To avoid waiting in the line, the two investigators went near the front of the line and waited until the one who had been there before could get the attention of Robert, the doorman. When he got Robert's attention, he asked Robert if Robert could do them a favor about the line and gave Robert $5.00. Robert took the money and admitted the two investigators without asking whether they were members. One of the investigators was able to order and be served an alcoholic beverage. It was so crowded inside that the other investigator was not able to place an order for an alcoholic beverage. On September 21, 1983, the two DABT investigators who had visited Suzanne's on the first occasions described above returned to the premises. Again they were able to enter without being asked about their membership status and both ordered and were served an alcoholic beverage. None of the DABT investigators who went to Suzanne's on the four occasions described above were members of the Suzanne's, nor were they bona fide guests of anyone who was a member. On each occasion when they were served alcoholic beverages, they paid the regular price for the beverages, approximately $3.50 each. On all four of the occasions described above when the DABT investigators entered Suzanne's and purchased alcoholic beverages, the club was very crowded. The extent of the crowds on those nights is reflected by the gross receipts for those four nights which were, respectively, $10,099.35, $5,125.60, $9,973.25, and $5,034.15. On all four of the occasions described above when DABT investigators entered Suzanne's, there were several employees of Suzanne's both in the area of the reception desk at the bottom of the stairs as well as at the top of the stairs attempting to control access to the premises and maintain control over the crowds. During 1983 Suzanne's was obtaining security services from Dade Federal Security. The security company would provide plainclothes guards to assist Suzanne's employees check membership, to help maintain order, and to help control the line outside when it was especially crowded. Sometime during 1983 the management at Suzanne's complained to Dade Federal Security that they suspected that some of the guards provided by Dade Federal Security had been taking money to admit non-members into the premises. Dade Federal Security confronted its employees with this complaint and one of the employees confessed to having taken money to admit non-members to Suzanne's. The employee was fired. The foregoing findings of fact contain the substance of the vast majority of the findings proposed by both parties. Proposed findings which are not incorporated in the foregoing findings are specifically rejected as irrelevant, as contrary to the greater weight of the evidence, or as unsupported by persuasive competent substantial evidence.
Recommendation On the basis of all of the foregoing, I recommend that the Director of the Division of Alcoholic Beverages and Tobacco enter a Final Order in this case dismissing all charges against the licensee. DONE AND ORDERED this 3rd day of July, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH 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 3rd day of July, 1985. COPIES FURNISHED: Howard Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Harold F. X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Sy Chadroff, Esquire 2700 Southwest 37th Avenue Miami, Florida 33133
