The Issue Whether respondent's alcoholic beverage license should be suspended or revoked on charges that its licensed lounge: (1) was resorted to be persona using illicit drugs or was used for the keeping or selling of' illicit drugs; and (2) constituted a public nuisance by virtue of such illicit drug activity.
Findings Of Fact Respondent and the Licensed Premises Respondent holds alcoholic beverage license No. 27-00312 (Series 2- COP). Under this license he owns and operates a lounge known as the "Laugh Inn" at 49 Navy Boulevard, Pensacola, Escambia County, Florida. The lounge sells beer, wine, and food to its customers. (Testimony of W. Flynn; P-13.) The Laugh Inn ("licensed premises" or "premises") has two main rooms with a connecting passageway. The front room contains tables, chairs, pool tables, and a bar. To the rear of the bar is an enclosed storage room separating the front from the rear room. The passageway connecting to the rear room is approximately 6 feet wide. On the north aide of the passageway are three restrooms. The rear room contains additional tables and chairs, pool tables, pinball machines, and a "football" table. Because the two main rooms are separated by the storage room, a person tending bar in the front room would be unable to see the rear room area. The rear room ceilings contain three exhaust fans to remove smoke and odors. (Testimony of W. Flynn; R-1.) The licensed premises does not include any area outside the lounge. No property outside of the lounge building was included in the sketch attached to respondent's application for an alcoholic beverage license. Be owns land in back of the premises on which he has placed a small trailer. Be owns a narrow strip of land on each side of the premises and a 3-foot-wide strip of land in front, facing Navy Boulevard. The front parking area--where customers ordinarily park their cars--is neither owned nor controlled by respondent. This parking area is on publicly owned property. Several windows on the premises face the parking area, but they have curtains which are ordinarily closed during business hours. There are no other windows on the premises from which the front parking area can be seen. (Testimony of W. Flynn; R-1.) II. Illicit Drug Activities on or Adjacent to Licensed Premises In April, 1982, undercover officers from the Escambia County Sheriff's Office began an investigation to determine whether violations of the controlled substances law were occurring on the licensed premises. On April 20, 1982, Deputy Linda Dees of the Santa Rosa County Sheriff's Office took delivery of a controlled substance--approximately 25.6 grams of cannabis (marijuana) --from Eric Babcock, a patron of the premises. The delivery took place on the premises at the front bar, where Deputy Bees and Mr. Babcock were seated. He placed the bag of cannabis into her purse--which was on her lap below the bar--and she paid him $35. (Testimony of Dees.) On that same day, April 20, 1982, Deputy Marilyn Medlin of the Escambia County Sheriff's Office took delivery of a controlled substance--approximately 12 grams of cannabis--from Mike Milstead, another patron. Although discussions for the purchase took place in the licensed premises--in a normal tone of voice- -the drugs were delivered and paid for in a vehicle located in the parking area in front of the licensed premises--an area neither owned nor controlled by respondent. (Testimony of Medlin; Seven days later, on April 27, 1982, Deputy Medlin purchased a controlled substance--three tablets of Lysergic Acid Diethylamide (LSD) --from Lydia Quinonas, another patron. The purchase and delivery took place in the rear room of the premises, where Deputy Medlin and Ms. Quinonas were seated. The three tablets were small in size--smaller than ordinary aspirin tablets; Ms. Quinonas delivered the tablets by placing the palm of her hand over the deputy's upturned palm and dropping the tablets. During this transaction, several other persons were in the rear room playing pool. The area was well lighted. (Testimony of Medlin.) On the same day--April 27, 1982--Deputy Dees purchased approximately 21.7 grams of cannabis from Steve Sweat and Kenny Crabtree, patrons of the bar. They also gave Deputy Bees the remaining portion of a marijuana cigarette. The delivery and sale of these drugs took place outside the licensed premises in a truck parked in the front parking area--an area neither owned nor controlled by respondent. Deputy Dees placed the drugs inside her purse where they remained until delivered to law enforcement authorities. (Testimony of Dees.) On May 3, 1982, Deputy Medlin purchased a bag containing approximately 18 grams of cannabis from Thurston Raines, a bar patron. The delivery took place in a private vehicle parked in a well-lighted area in front of the premises. (Neither the vehicle nor the area in which it was parked was owned or controlled by respondent.) Deputy Medlin immediately placed the cannabis into her purse where it remained until delivered to the Sheriff's Office. (Testimony of Medlin.) Later in the evening on May 3, 1982, Deputy Dees i1purchased approximately 17 grams of cannabis from Eric Babcock, a patron of the bar. Mr. Babcock removed a grocery bag concealed above the ceiling in the rear room of the premises. They then proceeded to a private vehicle parked in front of the premises where Deputy Dees selected one of what appeared to be several bags of cannabis in the grocery sack. After placing the bag and the grocery sack in her purse, they returned to the rear room of the premises, where Mr. Babcock returned the grocery bag to its hiding place. (Deputy Dees concealed the grocery bag in her purse when they reentered the premises because Mr. Babcock did not want to be seen carrying it.) The ceiling of the rear room was recently replaced and respondent was not informed of any cannabis having been stored in the ceiling. (Testimony of Dees.) On May 4, 1982, Louis Austie gave Deputy Medlin the remaining portion (.3 gram) of a marijuana cigarette. The cigarette was being smoked by several persons standing outside the front door of the licensed premises. When a sheriff's patrol car entered the lot, Mr. Austie quickly extinguished the cigarette and gave it to Deputy Medlin. This drug transaction took place on property neither owned nor controlled by respondent. (Testimony of Medlin.) During the evening of May 14, 1982, Deputy Medlin telephoned Kay Towney, the night bartender on the premises, and asked her if she knew anyone who would sell her marijuana. Ms. Towney replied that there was a customer on the premises who would sell it to her. Deputy Medlin then proceeded to the premises where Ms. Towney introduced her to Tom Suggs, a customer. After negotiating the sale of .25 ounces of marijuana, Deputy Medlin and Mr. Suggs proceeded to a private car in the front parking area; the delivery took place inside the parked vehicle. (In a subsequent statement given to police officers, Ms. Towney stated that she was aware of drug trafficking on the licensed premises; that she helped arrange drug transactions between her customers; that she knew Eric Babcock had hidden drugs in the ceiling; and that she knew Mr. Babcock, Mark Padgett, and one other person were drug dealers.) (Testimony of Medlin, Kiker.) On May 14, 1982, Mark Padgett approached Deputy Medlin on the premises and asked her if she wanted to buy some quaaludes. She responded that she did. He then delivered a drug to Deputy Medlin in the parking lot area in front of the premises. Subsequent laboratory analysis revealed that drug was not a controlled substance. (Testimony of Medlin.) On several occasions during her investigation, Deputy Medlin observed people in the rear room of the premises smoking what appeared to be marijuana. Since she is familiar with the odor of marijuana smoke, her conclusion is accepted as persuasive. (Testimony of Medlin.) On three or four separate occasions during April, 1982, Stewart Stamm- -a person familiar with the appearance and odor of burning marijuana--saw customers smoking marijuana in the rear room of the licensed premises. He also has purchased marijuana from patrons of th& bar approximately 30 times. (Testimony of Stamm.) On May 26, 1982, Deputy Medlin engaged in an open and loud conversation with Kay Towney, the night bartender. The conversation took place at the bar on the premises and concerned the use of quaaludes. Other customers were 5 to 7 feet away. Ms. Towney then sold to Deputy Medlin what she represented to be two quaalude tablets. 2/ (Testimony of Medlin.) On April 20, 1982, Deputy Medlin observed Kay Towney remove what appeared to be brushes from a compartment in the pool table in the rear room on the premises. A few minutes later, a patron returned to the pool table, opened the compartment and inserted several clear plastic bags containing what appeared to be marijuana. (The bags have not been recovered, so their contents have not been definitively identified.) (Testimony of Medlin.) III. Respondent was Unaware of Illicit Drug Activities on or Adjacent to Licensed Premises Respondent did not know that illicit drug activities had occurred and were occurring on or adjacent to the licensed premises; neither did Frances Flynn, his wife, who acted as the night manager until October, 1981, when she left for eight months to care for her terminally ill brother-in the State of Washington; neither did Doris Sheldon, the daytime bartender; neither did Carolyn Burch, the employee who closed the premises each morning at 2:30 a.m. (Testimony of W. Flynn, F. Flynn, Sheldon, Burch.) Respondent employed Larry Harrison and Pat Randolph to clean in and around the licensed premises on a daily basis. Mr. Harrison and Ms. Randolph would occasionally find in the parking area the remains of what they suspected to be marijuana cigarettes; but there is no evidence that they ever informed respondent of their suspicions. (Testimony of Harrison, Randolph.) No law enforcement officers, including agents of the DABT, have ever informed respondent that they suspected or had reason to believe that illicit drug activities were occurring on the licensed premises. Several regular customers of the bar testified that they had never sheen controlled substances being used, sold, or stored inside or outside the licensed premises. (Testimony of Saucier, Settles, Finney, Donlon.) All of the purchases of the controlled substances described in section II above were initiated by the undercover officers involved. Most of the described purchases and deliveries of controlled substances occurred in the front parking area--an area neither owned nor controlled by respondent and which is not part of the licensed premises. IV. Failure to Diligently Supervise and Maintain Surveillance of Licensed Premises During Evening Hours The illicit drug transactions described above occurred, for the most part, during the evening hours. During those hours--from 6:00 p.m. to 2:30 a.m.--Kay Towney served as the night bartender. Frances Flynn, wife of respondent, ordinarily served as the night-shift manager and supervised the night bartender; but Ms. Flynn was absent from October, 1981, to May, 1982, when she was caring for her ill brother in Washington. (Testimony of W. Flynn, F. Flynn.) Ms. Towney was hired by respondent toward the end of 1981--while his wife was in Washington. At the job interview, respondent asked her if she used drugs; she answered she had used marijuana in the past. During April and May, 1982--when the drug transactions already mentioned took place--Ms. Towney was the only employee regularly on the premises during the night shift. Although respondent considered her a bartender, she considered herself the night manager. (Testimony of W. Flynn.) In April and May, 1982--when the alleged violations occurred-- respondent did not normally supervise and maintain surveillance of the premises during the night shift. He would open the bar at 10:00 a.m. and work there throughout the day, until 6:00 or 7:00 p.m. Then he would go home; Ms. Towney was instructed to call him if any problems arose. During Ms. Flynn's eight- month absence, respondent employed David Saucier to periodically inspect the premises during the night shift. Mr. Saucier inspected the premises approximately ten times and did not observe any illicit drug activities on or adjacent to the premises. (Testimony of W. Flynn, Saucier.) During the time in question--April and May, 1982-- it is concluded that respondent was negligent in that he did not exercise due diligence in supervising and maintaining surveillance of the licensed premises during the evening hours. illicit drug activities occurred repeatedly on the premises-- particularly in the rear room. Such activities were open and persistent and recur- ring. Marijuana was openly smoked in the rear room. The fact that the three exhaust fans may have helped remove the smoke--thus limiting it to the rear room--does not excuse respondent's failure to monitor the rear room area. The person nominally in charge of the premises during the night shift was aware of the illicit drug activity; she not only condoned it but actively participated in it. Although respondent was normally absent from the premises during the night shift, he employed a friend to inspect the premises only about ten times during the night-shift manager's eight-month absence.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage' license be suspended for sixty (60) days, subtracting therefrom the number of days such license has been suspended due to the emergency suspension order served May 28, 1982. DONE AND RECOMMENDED this 29th day of June, 1982, In Tallahassee, Florida. R. L. CALEEN, JR. 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 29th day of June, 1982.
Findings Of Fact Respondent is a Florida corporation doing business in Tampa, Florida, and is the bolder of alcoholic beverage license number 39-482, 4-COP. Respondent's licensed premises are located at 2309 North Dale Mabry Highway, Tampa, Hillsborough County, Florida. The license was suspended by Petitioner's Emergency Order of Suspension issued July 22, 1982. On March 25, 1982, Beverage Officer Freese entered Respondent's licensed premises in an undercover capacity after paying a $1 cover charge. Freese proceeded to a circular room located upstairs in the licensed premises. This room had a small bar in the center, a small dance stage in front of the juke box, and bench-type seats located around the perimeter of the room. Shortly after entering the licensed premises, Freese was approached by a female dancer known as Diane. She sat down next to Freese without invitation and asked Freese if she could call the waitress over. Upon inquiry by Freese, Diane informed him that the reason for calling the waitress was because Freese had a drink and she did not. When Freese asked if that meant she wanted a drink, her reply was yes, and she thereafter ordered a drink. The drink was later served and Freese was charged $4 (Count 1). At approximately 10:45 p.m. on March 25, 1982, a female dancer known as Caryl seated herself next to Freese without invitation and inquired, "Who is going to buy me a drink?" After Freese agreed to buy her a drink, she stated that she was not supposed to solicit drinks because the premises had lost its license for such action in the past. Caryl ordered her drink from a waitress who returned with the drink, placed it in front of her, and charged Freese $4 (Count 2). At approximately 11:55 p.m. on March 25, 1982, a female dancer known as Mercedes was seated next to Freese and asked him if she could call the waitress over. When Freese asked why, the dancer replied that she needed a certain brand of mixed drink, and called the waitress to the table. She then ordered a drink for herself, which the waitress brought and placed in front of Mercedes. The waitress charged Freese $4 for the drink (Count 3). On March 26, 1982, Freese and a Confidential Informant entered the licensed premises in an undercover capacity. After paying the $1 cover charge they proceeded to the same circular room as on the previous occasion. At approximately 9:45 p.m. Mercedes again seated herself next to Freese and remarked that both she and Freese were dry and that she would call the waitress over. When asked by Freese if that meant she wanted him to buy her a drink, she summoned a waitress named Darlene to the table and ordered a drink for herself. Upon returning to the table, the waitress placed Mercedes' drink in front of her and charged Freese for the drink. The total charge for the two drinks was $6, and Mercedes later informed Freese that all of the dancers got doubles when ordering drinks (Count 4). On March 31, 1982, Officer Freese and the Confidential Informant again entered the licensed premises in an undercover capacity. After paying the cover charge of $1 each, Officer Freese again proceeded to the upstairs circular room of the lounge. At approximately 8:25 p.m., the dancer Mercedes again joined Officer Freese at the table. After paying Mercedes $5 for dancing, Mercedes asked Freese if she could call the waitress over. Freese replied, "It's up to you," and Mercedes called a waitress known as Marty to the table and ordered a mixed drink for herself. Upon delivering the drink to Mercedes, the waitress informed Freese that the cost of the drink was $4 (Count 5). At approximately 9:00 p.m. on March 31, 1982, Mercedes again asked Freese, "May I call the waitress over?" Freese replied, "It's your turn to buy." Mercedes replied that it was not her turn and ordered a mixed drink for herself from the waitress. The waitress charged Freese $6 for this drink (Count 6). At approximately 9:40 p.m. on March 31, 1982, Mercedes again asked Freese if she could call the waitress over. After Freese told her that it was her turn to buy this time, Mercedes replied that it was his turn to buy. She again called the waitress over and ordered a drink for which Freese was charged $4 (Count 7) At approximately 11:00 p.m. on March 31, 1982, Freese was in the presence of two dancers, Mercedes and another dancer known as Cheryl. At this time, Mercedes again asked Freese if she could call the waitress over. After Freese asked Mercedes if she was buying this time, she replied, "I do the dancing." In response to this remark, Freese stated, "I guess that means that I pay for all the drinks," to which Mercedes indicated yes. Mercedes ordered a drink from the waitress Marty, who returned with the drink, placed it in front of Mercedes and charged Freese for the drink (Count 8). On April 7, 1982, Officer Freese entered the licensed premises with a Confidential Informant in an undercover capacity. Upon entering the licensed premises, they proceeded to the circular bar upstairs and seated themselves at a small table. At approximately 8:45 p.m., the dancer Mercedes, while seated at the table with Freese, asked him if she could order another drink. She ordered a drink from a waitress who served her the drink and then charged Freese $4 for it (Count 9). On April 7, 1982, at approximately 9:15 p.m., the dancer known as Caryl was seated at the table with Freese. She turned to him and stated, "Mike, I need a drink." When Freese inquired as to what she had said, Caryl replied, "Will you get me a drink?" (Count 10). On April 8, 1982, Officer Freese and a Confidential Informant again entered the licensed premises and proceeded to the upstairs bar. At approximately 8:40 p.m. the female dancer known as Mercedes was seated at the table with Officer Freese. While tipping her empty glass toward Freese, Mercedes asked if she could call the waitress. She then ordered a drink for herself, which was delivered to her by the waitress who charged Freese for the drink (Count 11). At approximately 9:15 on April 5, 1952, Officer Freese and a Confidential Informant were joined by another female dancer known as Caryl, who proceeded to ask, "Who is going to buy me a drink?" While a waitress known as Darlene was standing in front of Caryl, Caryl asked Freese, "Mike, will you buy me a drink?" She then ordered a mixed drink for herself, which was delivered to her, and the waitress charged Freese for the drink (Count 12). On May 13, 1982, at approximately 11:00 p.m., Beverage Officers Freese and Hodge entered the licensed premises in an undercover capacity and proceeded upstairs to the circular room. Shortly after seating themselves, they were joined by a dancer known as Stephanie. At approximately 9:45 p.m. the officers were approached by a waitress known as Doris. Hodge ordered a beer and upon inquiry by the waitress if there would be anything else, Hodge replied in the negative. However, Stephanie stated to the waitress that she would have a mixed drink. While waiting for the drinks to be delivered, Stephanie informed Hodge that she could not ask for a drink because it would be soliciting and she could be thrown into jail for that. After paying for the drinks, Hodge made a remark as to the cost of the drinks to which Stephanie replied, "That's how the house makes its money, off the drinks, and we make ours off the lap dances. That's what this upstairs is about, drinking and dancing." (Count 13) At approximately 11:00 p.m. on May 13, 1982, Freese was approached by a dancer known as Linda, who asked if she could dance for him. While lap dancing for Freese, Linda asked, "Can I get a drink, too?" Freese asked if she wanted him to buy her a drink and she replied, "Yes, will you buy me a drink?" Linda then called the waitress, ordered a drink which was delivered to her at Freese's table, and he was charged $4 for Linda's drink (Count 14). On May 18, 1982, Beverage Officers O'Steen and Freese entered the licensed premises in an undercover capacity and proceeded to the upstairs lounge. At approximately 8:35 p.m., Freese was approached by a female dancer known as Darlene, who asked to dance for him. After informing Darlene that he did not want a dance, she asked him if he would buy her a drink. Darlene then summoned a waitress over to the table and ordered a mixed drink for herself. The waitress delivered the drink to Darlene and charged Freese for it (Count 15). At approximately 10:25 p.m. on May 18, 1982, Freese was again approached by Darlene and asked, "How about a drink?" When Freese asked Darlene if she was buying, she responded "No, you are." Darlene then summoned the waitress and ordered a drink which was delivered to her at Freese's table. Freese paid for the drink (Count 16). On May 19, 1982, Officers Hodge and Freese entered the licensed premises in an undercover capacity and proceeded to the circular lounge upstairs. At approximately 8:45 p.m., a dancer known as Diane asked Freese, "Can I call the waitress?" to which Freese replied, "Does that mean that you want me to buy you a drink?" After Diane replied affirmatively, she summoned the waitress over and ordered a drink which was later delivered to her at Freese's table. Freese was charged $4 for the drink (Count 17). On May 19, 1982, at approximately 8:55 p.m., the dancer Mercedes approached the officers' table and seated herself between them. Mercedes then asked Hodge if she could call the waitress over. She thereafter ordered a drink which was delivered to her at the officers' table by the waitress Darlene, who charged Hodge $4 for the drink (Count 18). At approximately 9:10 p.m. on May 19, 1982, Diane was still seated at the officers' table and asked Freese if she could call the waitress again. Diane then called the waitress to the table and ordered a mixed drink for which Freese was charged (Count 19). At approximately 9:50 p.m. on May 19, 1982, Diane asked Hodge "Do you want to buy me a drink now, or do you want me to wait until after I dance?" In response to this, Hodge asked Diane if she wanted him to buy her a drink, to which Diane replied, "yes." While Diane was dancing, the waitress brought her drink to the table and charged Hodge $4 for it (Count 20). On July 6, 1982, Officers Freese and Hodge again entered the licensed premises in an undercover capacity and proceeded to the upstairs lounge. At approximately 8:55 p.m., the dancer Stephanie, who was then seated at the officers' table, said to Hodge, "Will you buy me a drink?" She thereafter ordered a drink for which Hodge was charged (Count 21). At approximately 9:15 p.m. on July 6, 1982, Officers Hodge and Freese were seated in the upstairs portion of the lounge. At this time, they were accompanied by the dancers Caryl and Stephanie. During the course of a conversation, Hodge asked Freese if he was buying the next drinks, and Stephanie said, "What about me?" A waitress was present during this conversation and asked Freese if he intended to buy the dancer Caryl a drink also. Both Stephanie and Caryl each ordered mixed drinks which were delivered to the officers' table and were paid for by the officers (Count 22). At approximately 11:00 p.m. on July 6, 1982, the dancer Stephanie was seated with the officers at their table. At this time, she asked Freese, "Are you going to buy me a drink?" Upon Officer Freese replying "Yes," Stephanie ordered a mixed drink from the waitress who brought the drink to Stephanie and charged Officer Freese $4 (Count 23). On July 8, 1982, Officers Freese and Hodge entered the licensed premises in an undercover capacity and proceeded to the upstairs lounge. At approximately 7:25 p.m., they were approached by a woman known as Judy, who asked if she could join them for a drink. She then stated, "Mine only costs $2. They cost $4 for the girls on the night shift." Judy then ordered a drink which was delivered to her at the officers' table and was paid for by Freese (Count 24). At approximately 7:35 p.m. on July 8, 1982, Judy inquired of Hodge if he was ready for another beer and then said to Freese, "Can I get another one?" She then ordered a drink from the waitress known as Cathy, and the drink was paid for by Officer Freese (Count 25). At approximately 9:45 p.m. on July 8, 1982, Officers Freese and Hodge were seated at a table with a dancer known as Dorothy. At this time, Freese was approached by a waitress who asked him if he needed another drink, at which time Freese looked at Dorothy, and she said, "I'm drinking 7 and 7." The waitress delivered the drink to Dorothy, and it was paid for by Freese (Count 26). On July 19, 1982, Officer Hodge was again in the licensed premises in an undercover capacity and was seated in the upper level of the lounge. At approximately 9:15 p.m. the dancer Stephanie, who was sitting with Hodge asked, "Are you going to buy me a drink?" Upon Hodge agreeing to do so, Stephanie called to a waitress known as Darlene to bring her a mixed drink. Hodge paid for this drink (Count 27). On April 1, 1982, Officer Freese and the Confidential Informant were in the circular lounge in the upper portion of the licensed premises. At approximately 9:00 p.m., the dancer Caryl seated herself between the Confidential Informant and Freese. After the Confidential Informant inquired of Caryl if she had a bag of marijuana she had earlier promised them, Caryl stated that she did and would retrieve it. She then proceeded to a small dance stage and retrieved a large bag from which she transferred something into her handbag. Upon returning to the table, Caryl handed the marijuana to the Confidential Informant and was paid $10 by Freese (Count 25). On May 13, 1982, Officers Hodge and Freese entered the licensed premises in an undercover capacity. At approximately 11:10 p.m., the dancer known as Mercedes joined the officers and entered into a conversation with Freese. During the conversation, Mercedes discussed her use of cocaine and how it affected her. Freese inquired if she was in possession of any cocaine, to which she replied, "No, but I can get you some," and informed him that it would cost $45 for a half gram. At approximately 11:45 p.m., Mercedes delivered a small, clear, plastic package to Hodge containing a white powdery substance, later proven to be cocaine. The delivery of the cocaine occurred on the licensed premises while the officers were seated in the upstairs lounge (Count 29) On July 7, 1982, Officers Hodge and Freese were again in the licensed `premises. They engaged the dancer Stephanie in a conversation concerning the availability of drugs. She informed them that she was in possession of a fourth of an ounce of marijuana and would sell each of the officers two marijuana cigarettes for $5. At approximately 12:30 a.m. on this date, she advised Freese that she needed $10, since she was going to roll their marijuana cigarettes. At approximately 12:50 a.m. Stephanie returned to the officers' table and delivered two hand-rolled marijuana cigarettes to Freese and one to Hodge. This transaction took place on the licensed premises in the upstairs portion of the lounge (Counts 30 and 31). On July 8, 1982, Officers Hodge and Freese were again in the licensed premises. At approximately 7:20 p.m., Freese was approached by the dancer Linda, who inquired if he still wanted a gram of cocaine which she had agreed to sell to him on July 7, 1982. At approximately 9:30 p.m., Linda approached Hodge and Freese in the upper portion of the lounge. She handed Freese a small, amber, glass vial containing a half gram of cocaine for which he paid her $50. She also delivered a one dollar bill containing half a gram of cocaine to Hodge for which he paid her $45. After the deliveries were made, Linda informed Freese that she could obtain cocaine for him at any time as long as he gave her a day's notice (Counts 32 and 33). On July 14, 1982, Officer Freese was again in the licensed premises and took delivery of approximately one gram of cocaine from the woman known as Linda. Linda was not working as a dancer at the time, but was downstairs working as a bartender. Prior to the delivery of the cocaine to Freese, for which he paid $90, Linda requested that she be allowed to ingest part of the cocaine and proceeded to the dancers' restroom. Upon returning she gave Officer Freese the gram of cocaine contained in a plastic bag with the seal broken (Count 34). On July 15, 1982, Officers Freese and Hodge returned to the licensed premises accompanied by Special Agent Rick Look from the Florida Department of Law Enforcement. On this occasion, Agent Look took possession of approximately one-eighth of an ounce of cocaine from the bartender Linda. The delivery was made in the parking lot of the licensed premises where Linda delivered the cocaine to Look in return for $275. The arrangements for this transaction had been made the night before inside the licensed premises (Count 35). On July 20, 1982, Officer Hodge was again in the licensed premises in an undercover capacity. At approximately 8:50 p.m., the bartender Linda delivered approximately one gram of cocaine to Officer Hodge in return for $90. On this same date, Linda also delivered approximately one-eighth of an ounce of cocaine to Special Agent Look in return for payment of $280. The deliveries to Look and Hodge both took place in the downstairs portion of the licensed premises in the vicinity of the bar (Counts 36 and 37). The testimony of Respondent's employees established that the dancers in the upper portion of the lounge are not on Respondent's payroll and, in fact, pay Respondent for the privilege of dancing upstairs. Their compensation is obtained through tips they receive from customers for their dances. It was shown that the upstairs dancers are informed as to the rules of the club which prohibit solicitation of drinks and possession of drugs. These dancers have access to the various portions of the lounge, including the dressing room and the restrooms. Their schedules are controlled by the manager, who also hires and fires them. From the testimony of the dancer Stephanie, whose real name is Peggy Knight, it was shown that dancers generally knew that certain other dancers were selling drugs on the premises, that several of the dancers were using drugs and that they regularly ingested such drugs in the women's restroom. The reason for using this room was the double entrance, which could be locked from the inside so as to prevent intrusion. Testimony of the president of the licensee corporation, 2001, Inc., established that Respondent paid a $10,000 fine and served a two weeks' suspension in 1991 as a result of violations of Section 561.131, Florida Statutes. The president occasionally visits the licensed premises, but had not been to the upstairs portion of the lounge for almost two years.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty as charged in Counts 1 through 12, 14 through 25 and 27 through 37 of the Notice to Show Cause/Administrative Complaint and suspending Respondent's alcoholic beverage license for a period of one year. DONE and ENTERED this 10th day of February, 1983, in 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 10th day of February, 1983.
The Issue Whether or not on or about August 9, 1975, Martha L. Washington, a licensed vendor did have in her place of business, one (1) four-fifths brokenseal bottle of Barcardi Rum, Light, not authorized by law to be sold under her license, contrary to Section 562.02, Florida Statutes.
Recommendation It is recommended that a civil penalty in the amount of $200.00 be imposed against the license of Martha L. Washington for the violation established through the allegation of the subject Administrative Complaint. DONE and ENTERED this 17th day of February, 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: William Hatch, Esquire Department of Business Regulation 725 Bronough Street Tallahassee, Florida 32304 Martha L. Washington 1085 Palmetto Street Bartow, Florida
The Issue Whether the Petitioners are entitled to a transfer of the quota license they attempted to apply for in their initial application. Whether the Petitioners are entitled to an alcoholic beverage license for a restaurant based upon their second application. Whether the Petitioners are entitled to an alcoholic beverage license based upon their third application in spite of the county's refusal to approve the zoning of the proposed location until a pending declaratory judgment before the circuit court is resolved. Whether the Respondent is estopped to deny any of the applications because of the representations made by a field agent for the agency that to his knowledge, there were no problems at the proposed location.
Findings Of Fact The joint stipulation of facts entered into by the parties on December 21, 1988, are adopted as the findings of fact in this proceeding. A copy of the stipulation is attached and made part of this Recommended Order.
Findings Of Fact Respondent is Alice Waldo, holder of Alcoholic Beverage License No. 45- 00293, Series 2-COP, for a licensed premises known as the SILVER DOLLAR CAFE located in Lake County, Florida. On or about February 4, 1989, an investigator employed by Petitioner entered the licensed premises of Respondent. While in Respondent's facility, the investigator observed several patrons smoking a substance, which by its smell and usage, he believed to be marijuana. The investigator then met with a patron, ordered a small quantity of crack cocaine and handed the patron some money for the forthcoming purchase. The patron then asked Respondent to hold the money while he left the premises to retrieve the controlled substance from his automobile. Shortly thereafter, the patron returned with the cocaine. The investigator showed the substance to Respondent's daughter, who had taken her mother's place at the bar. The purpose of displaying the drug to the proprietor, or the proprietor's daughter in this instance, was to later illustrate that Respondent condoned the use and sale of the drug in connection with her licensed premises. A field test by the investigator and a later laboratory test confirmed the identity of the substance purchased as crack cocaine. Petitioner's investigator again entered Respondent's facility on or about February 10, 1989. On this occasion, the investigator purchased a quantity of marijuana from a female patron, then took the substance over to the bar where he proceeded to roll a marijuana cigarette in the presence of Petitioner. At no time did Petitioner inform the investigator that controlled substances were not allowed on the licensed premises. Upon later laboratory analysis, the substance was confirmed to be marijuana. Upon leaving Respondent's facility on February 10, 1989, Petitioner's investigator met an individual within 10 feet of the front door of the premises who sold him a quantity of a substance later determined by laboratory analysis to be crack cocaine. On or about February 24, 1989, Petitioner's investigator entered Respondent's facility. On the front porch of Respondent's facility, the investigator purchased a quantity of a substance later determined by the investigator's field test and a subsequent laboratory analysis to be crack cocaine. After completing the purchase of the substance, the investigator went inside the facility, placed the material on the counter and recounted to Respondent that it had just been purchased on the front porch. Respondent made no reply to the investigator's announcement and, instead, complied with his request for change for a $20 bill. Upon receipt of the change, the investigator wrapped the crack cocaine in a $1 bill in Respondent's presence. On February 28, 1989, Petitioner's investigator again entered Respondent's facility. He approached a black female named "Lilly" and gave her $20 for the purchase of crack cocaine. However, after the lady accepted the $20 and left to retrieve the cocaine, she did not return. The investigator complained to Respondent that "Lilly" had failed to deliver the drug to him. The investigator also told Respondent that the lady could keep the $20 if Respondent would get him some of the drug. At that time, Respondent referred the investigator to a group of three male patrons on the front porch of the facility who appeared to be smoking marijuana. At no time during this incident did Respondent take any steps to prevent the use of any controlled substances on the licensed premises. Subsequently, Petitioner's investigator returned to Respondent's facility on or about March 4, 1989. He purchased a beer and went outside to the front porch of the facility. He observed a number of furtive transactions where currency was passed between certain individuals. He noticed Respondent go to one of the automobiles in the facility parking lot, get into the automobile, engage in conversation with the occupants and shortly thereafter emerge from the automobile. Respondent went back into the facility. The investigator approached a black male and gave him $20 for some crack cocaine. The black male took the investigator's money, then went directly to the automobile where Respondent had been previously. He returned shortly thereafter to the investigator with two pieces of a substance which later tested positive, via field test and laboratory analysis, as cocaine. During another visit to Respondent's facility on or about March 9, 1989, Petitioner's investigator observed a patron rolling what appeared to be marijuana cigarettes in Respondent's presence. While Respondent took no action to prohibit the use or possession of the apparently controlled substance, she did get her coat and leave shortly after the investigator's arrival. On or about March 11, 1989, Petitioner's investigator reentered Respondent's facility. The investigator purchased a small quantity of crack cocaine from a black male on the front porch of the facility. The investigator then took the controlled substance inside the building and displayed it to Respondent, telling her that he had just obtained the drug on the porch. Respondent asked the investigator if he was going to smoke the drug, and he replied yes. Later, a field test and laboratory analysis confirmed the drug to be cocaine. On or about March 17, 1989, Petitioner's investigator visited Respondent's facility. This time the investigator purchased a small quantity of a drug on the front porch of the building which, upon subsequent field test and laboratory analysis, was confirmed to be cocaine. After completing the purchase, the investigator took the substance inside and showed it to Respondent. Later in the evening, the investigator engaged Respondent in conversation on the front porch and related to her that he had observed numerous drug transactions taking place in her facility. Respondent smiled in acknowledgment of the investigator's statement and replied that she certainly hoped he was not a policeman. He told her that he was not a policeman. Respondent took no action to prohibit further use or transactions relating to drugs on the premises.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered revoking Respondent's beverage license bearing number 45-00293, Series 2- COP. DONE AND ENTERED this 13th day of June, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1989 APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-10. Addressed. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: EDWIN R. IVY, ESQUIRE BOX 3223 ORLANDO, FLORIDA 32810 THOMAS A. KLEIN, ESQUIRE DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007 STEPHEN R. MACNAMARA, SECRETARY DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007 LEONARD IVEY, DIRECTOR DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007
The Issue Whether petitioner's application to change its corporate officers should be denied because the proposed officer allegedly lacks good moral character.
Findings Of Fact The Village Zoo holds alcoholic beverage license no. 16-839, Series 4- COP SR, authorizing it to serve alcoholic beverages at its bar (the "licensed premises") at 900 Sunrise Lane, Fort Lauderdale, Florida. On September 22, 1982, the Village Zoo filed an application with DABT to change corporate officers by adding James C. Dowd as a vice president1. While this application was pending, James C. Dowd was employed as one of the managers at the Village Zoo. One of his duties was to help the bartender serve alcoholic beverages on an as-needed basis. On November 5, 1982, undercover Beverage Officer Tom Wheeler, 24, entered the licensed premises to investigate complaints of alleged sales of alcoholic beverages to underaged persons--persons under the age of 19. He paid a cover charge at the door, his identification was not checked. Inside, he saw 50-75 young patrons crowded in the area of the second floor bar. Two persons were tending bar, one of whom was James C. Dowd. Officer Wheeler saw two young patrons, William Esler, 17, and Kelly Heatherman, 18, approach the bar and ordered drinks from Mr. Dowd, who then served them two alcoholic beverages. (William Esler ordered and was served a Whiskey and Seven- up; Kelly Heatherman ordered and was served a Budweiser beer). Mr. Dowd served them these drinks without asking their age or checking their identification. When these two underaged individuals ordered the drinks, they were standing at the bar and in plain view of Mr. Dowd; they were neither standing behind others nor hidden from view. After Mr. Dowd served these two drinks, he was arrested and charged with the crime of serving alcoholic beverages to persons under the age of 19. When Kelly Heatherman and William Esler, the two underaged persons, entered the premises that evening, they paid a cover charge but their age was not questioned at the entry door. Neither was their identification checked. The Village Zoo has a reputation in the community as a popular gathering place for young people. Both William Esler and Kelly Heatherman had been there before. William Esler had been there twice, prior to the November 5, 1982, incident, and once since. His identification had never been checked, although he did not order a drink on his last visit. Kelly Heatherman had been there every week from approximately September (1982) to November 5, 1982. During most of his visits, he ordered alcoholic beverages. One time, his identification was checked at the door and he was turned away. Since the November 5, 1982, incident, he has returned to the Village Zoo a couple of times. James C. Dowd was aware of Heatherman's continued patronage of the Village Zoo and described Heatherman as a regular customer. Heatherman continued to order and was served alcoholic beverages during his visits to the Village Zoo after November 5, 1982. After November 5, 1982, Heatherman continued to enter the Village Zoo without having his identification checked, despite the fact he was identified to the Village Zoo and James C. Dowd, on November 5, 1982, as being under the legal age (19) to possess or consume alcoholic beverages. Both William Esler and Kelly Heatherman were, as of the date of the administrative hearing on this case, under the age of 19 years. James C. Dowd knew or should have known that Kelly Heatherman's consumption of alcoholic beverages served by the Village Zoo after November 5, 1982, was contrary to the Beverage Law. (This paragraph contains findings of fact which are in addition to those found by the Hearing Officer. Such additional facts are not contrary to those found by the Hearing Officer, rather they amplify the same and are supported by competent, substantial evidence in the form of sworn testimony of Kelly Heatherman, William Esler and James C. Dowd). The Village Zoo had an announced policy prohibiting the sale of alcoholic beverages to underaged persons and prohibiting their entry onto the licensed premises. To enforce this policy, two persons were posted at the entryway to check identification and collect cover charges from patrons. Peter Balcunas, and off-duty Fort Lauderdale policeman, was also hired to provide security and assistance to the door-checkers. He was ordinarily posted near the front door, outside the premises. Under this Village Zoo policy, the two door-checkers had the primary responsibility to check the identification of patrons and prevent underaged persons from entering the premises. All employees, however, had the duty to check the identification of any patron if there was any question or doubt about whether the individual was of drinking age. Both William Esler and Kelly Heatherman fall within this "questionable or doubtful" category. From their demeanor and outward appearance at hearing, it is difficult to determine their true age. Their faces are mature for their age and they could reasonably pass as 18, 19 or 20-year olds. On the evening of November 5, 1982, Kelly Heatherman and William Esler entered the premises, walking past the door-checkers and Officer Balcunas. They then proceeded to the second floor bar and ordered drinks from Mr. Dowd. Their age was not questioned and their identification was not checked. The Village Zoo's announced policy of forbidding sale of alcoholic beverages to minors, including steps taken to enforce it, compares favorably with those of similar businesses in the area serving alcoholic beverages. James C. Dowd, the person allegedly lacking in good moral character, has a reputation in the community as an honest trustworthy, hardworking and law- abiding man. He attends church regularly. His business associates view him as a man who honors his financial obligations and who has good moral character. Mr. Dowd does not recall serving alcoholic beverages to William Esler and Kelly Heatherman on November 5, 1982. There was a crowd of customers near the bar at the time, and he was helping the bartender serve drinks as quickly as possible. Nevertheless, in his haste, he violated the Village Zoo policy. He served alcoholic beverages to two youthful-looking persons whose age was difficult to determine, without inquiring as to their age or checking their identification. There is no evidence that he knowingly and intentionally sold alcoholic beverages to underaged persons. (Two sentences contained in the Recommended Order at this place, were deleted as such constitute conclusions of law, not of fact). Although there was evidence that the two underaged persons had been served alcoholic beverages at the Village Zoo prior to and after November 5, 1982, it was not shown that Mr. Dowd served them or that (as one of the managers) he was culpably responsible.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Village Zoo's application to change corporate officers be granted. DONE and ENTERED this 29th day of June, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. 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 29th day of June, 1983.
The Issue Whether or not on or about May 25, 1976, Leroy Francis, a licensed vendor, or his agent or employee, to wit: Lela Mae Caldwell, did have in her possession, on his licensed premises, alcoholic beverage to, wit: a one half pint bottle of Seagram's Extra Dry Gin, not authorized by law to be sold under his license, contrary to s. 562.02, F.S. Whether or not on or about June 2, 1976, Leroy Francis, licensed under the beverage laws, or his agent or employee, to wit: Lela Mae Caldwell, did sell a one half pint of Seagram's 7 Crown Whiskey, on his licensed premises to a Guy William, said sale not permitted by his license, contrary to s. 562.12, F.S. Whether or not on or about June 7, 1976, Leroy Francis, licensed under the beverage laws, or his agent or employee, to wit: Lela Mae Caldwell, did have in her possession, certain alcoholic beverages, to wit: 185 assorted bottles of tax paid whiskey and 13 assorted bottles of wine, with the intent to sell said alcoholic beverages without a license, contrary to s. 562.12, F.S.
Findings Of Fact From May 25, 1976, up to and including the date of the hearing, Leroy Francis, t/a Palm Beer Garden was the holder of license no 30-71, series 1-COP with the State of Florida, Division of Beverage. The license was for a premises located at 22 South Adams Street, Quincy, Florida. On May 25, 1976, Officer Garry Sands and Officer John Harris of the State of Florida, Division of Beverage went to the aforementioned licensed premises. Officer Sands went to the rear and Officer Harris went to the front. Officer Sands observed a black female leave the licensed premises from the back and go to a white 1969 Chevrolet car, open the trunk and remove a bottle of whiskey, place it in her shirt and return to the premises. He then entered the bar together with Officer Harris and retrieved a one half pint bottle of Seagram's Extra Dry Gin from the same female, while in the licensed premises. This bottle is Petitioner's Exhibit number 4, admitted into evidence. The woman was identified as Lela Mae Caldwell who on another occasion had signed an inspection paper as being an employee in the licensed premises. The series 1- COP license does not allow sale of said alcoholic beverage on the premises. On June 20, 1976, Officer Sands returned to the premises with one Guy William. Guy William is an undercover informant for the Petitioner. This trip was made around 8:30 P.M. Officer Sands checked to see that Guy William did not have any liquor or money on his person and then gave Guy William $5.00 to attempt to purchase liquor from within the licensed premises. Guy William left Officer Sands and was observed going directly through the rear door of the licensed premises. While in the licensed premises Guy William asked Lela Mae Caldwell for a half pint bottle of alcoholic beverage and made such a purchase from Lela Mae Caldwell. Agent Sands, while at the rear of the building, observed a person go to the same white 1969 Chevrolet and remove a bottle of alcoholic beverage and return to the licensed premises Guy William saw a similar person leave the building and return with a bottle of alcoholic beverage. The alcoholic beverage which was purchased was admitted as Petitioner's Exhibit number 5. This alcoholic beverage was not allowed for sale under the series 1- COP license for the premises. Based upon the information supplied by the informant, Guy William, a search warrant was secured to allow a search of the 1969 white Chevrolet. On June 7, 1976, around 12:00 A.M. officers of the State of Florida, Division of Beverage returned to the licensed premises and served a search warrant on Lela Mae Caldwell, who was working at that time. Leroy Francis, the licensee was also seen in the area of the bar at that time. The officers went to the white 1969 Chevrolet and Leroy Francis returned to the car and gave them the key which unlocked the trunk, in which was found an assortment of alcoholic beverages to include 185 assorted bottles of tax paid whiskey and 13 assorted bottles of tax paid wine. These bottles constitute Exhibit number 6, admitted into evidence. After being advised of his rights, Leroy Francis, the licensee, admitted that he had keys to the car as well as Lela Mae Caldwell, his common law wife.
Recommendation It is recommended, based upon the facts as shown in the Rules to Show Cause, that the license of Leroy Francis to sell alcoholic beverages be suspended for a period of 60 days. DONE and ENTERED this 13th 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 Leroy Francis 22 South Adams Street Quincy, Florida
The Issue The issue in this case is whether the Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT), should revoke, suspend, or otherwise discipline the alcoholic beverage license number 13-153, Series 5-COP, issued to the Respondent, Tupelo Management, Inc., doing business as Pastime, a bar located at 3602 West Highway 98, Panama City, Florida, upon the following grounds alleged in DABT's Notice To Show Cause issued May 2, 1984: On or about March 7, 1984, you, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, your agent, servant or employee, to wit: Margie, did violate F.S. 561.29(1)(a), to wit: did sell or deliver marijuana to Investigator Moore on your licensed premises in violation of F.S. 893.13. On or about March 12, 1984, you, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, your servant, agent or employee, to wit: Margie, did violate F.S. 561.29(1)(a), to wit: did sell or deliver marijuana to Detective Moore on your licensed premises in violation of F.S. 893.13. On or about March 23, 1984, you, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, your agent, servant or employee, to wit: Teresa, did violate F.S. 561.29(1)(a), to wit: did deliver marijuana to Investigator Moore on your licensed premises in violation of section 893.13. On or about March 26, 1984, you, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, your agent, servant, or employee, to wit: Margie, did violate F.S. 561.29(1)(a), to wit: did sell or deliver marijuana to Investigator Moore and Officer Russ on your licensed premises in violation of Section 893.13. On or about April 2, 1984, you, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, your servant, agent or employee, to wit: Margie, did violate F.S. 561.29(1)(a), to wit: did sell or deliver marijuana to Investigator Moore and Officer Russ on your licensed premises in violation of Section 893.13. On or about April 9, 1984, you, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, your servant, agent or employee, to wit: Margie, did violate F.S. 561.29(1)(a), to wit: did sell or deliver marijuana to Investigator Moore and Officer Russ on your licensed premises in violation of Section 893.13. You, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, between March 7, 1984 and the date of service of this Notice to Show Cause have maintained a public nuisance on your licensed premises, to wit: a place or building which is visited by persons for the purpose of unlawfully using, keeping, selling and/or delivering controlled substances in violation of Chapter 893, Florida Statutes, such being a violation of: (a) Florida Statutes 823.10 and 561.29(1)(c); (b) Florida Statutes 823.01 and 561.29(1)(a). You, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, between March 7, 1984 and the date of this Notice to Show Cause have maintained your licensed premises as a place resorted to by persons selling controlled substances in violation of Chapter 893, Florida Statutes, in violation of Sections 893.13(2)(a)5 and 561.29(1)(a), Florida Statutes.
Findings Of Fact Based on the testimony of the witnesses and the exhibits admitted in evidence at the hearing, I make the following findings of fact: At all times relevant and material to this case, Tupelo Management, Inc., has been the holder of alcoholic beverage license number 13-153, Series 5- COP, issued for the premises known as the Pastime, located at 3602 West Highway 98, Panama City, Florida. Mr. John Michael Whitfield is, and was at all relevant and material times, the president of Tupelo Management, Inc. Mr. Whitfield and his wife own all of the stock of Tupelo Management, Inc. Mr. Whitfield first opened the Pastime on May 18, 1977. At that time it was a small beer and wine bar with five pool tables. Over the years the business grew and in August of 1983 Mr. Whitfield purchased a 5-COP license for the Pastime. Prior to the events giving rise to this case, the Pastime had only been cited by the DABT for two violations. The first violation occurred during the first year of Pastime's operation. It concerned the wording of an advertisement on the exterior of the building. A DABT agent wrote a report or citation and the sign was promptly removed. No penalty was imposed as a result of that event. The second violation occurred during January of 1984. On that occasion the DABT agents found two minors on the licensed premises. The January 1984 violation was resolved by stipulation, pursuant to which Tupelo Management, Inc., paid a civil penalty in the amount of $250.00. The Bay County Sheriff's Department began an investigation of the Pastime in March of 1984 on the basis of information that illegal drug activity was occurring on the licensed premises. Mr. Floyd M. Moore, Jr., an investigator with the Bay County Sheriff's Department, went to the licensed premises the evening of March 7, 1984. Investigator Moore was introduced by a confidential informant to a waitress named Margie Adams, who was employed on the licensed premises. Investigator Moore asked Margie Adams if she could obtain some marijuana and she answered in the affirmative. Investigator Moore left the premises and returned at approximately 7:45 P.M. that same evening. He made contact with Margie Adams again. Margie Adams made a telephone call and then told Investigator Moore the marijuana would be there a short time later. At about 8:45 P.M. Margie Adams asked Moore how the transaction could be made. At Moore's suggestion they went to a table on the licensed premises and Margie Adams handed Investigator Moore a clear plastic bag containing marijuana. The plastic bag was covered when it was given to Investigator Moore. Investigator Moore paid Margie Adams $35.00 for the marijuana. On March 12, 1984, at approximately 7:45 P.M. Investigator Moore and Beverage Officer Rodney Russ entered the Pastime. After Investigator Moore introduced Margie Adams to Russ, Margie asked Moore if he had liked what she had previously sold him and agreed to get another bag for Moore, stating that it would just take a phone call. Margie spoke to a female waitress for a few minutes, after which she went behind the bar and made a telephone call. She thereafter returned to the officers and stated that the marijuana would arrive in approximately 30 minutes and asked that Investigator Moore pay her at that time to avoid confusion when it arrived. Investigator Moore gave Margie $35. At approximately 8:45 P.M. Margie told Investigator Moore that the merchandise had arrived and asked him to walk to the end of the bar. Moore went to the end of the bar located next to the dart board, where there was a lot of activity and numerous people, and Margie handed him a white paper napkin covering a plastic baggie of marijuana. On the evening of March 19, 1984, Investigators Moore and Russ returned to the Pastime. The officers each ordered one-quarter ounce of marijuana from Margie Adams but she stated that the person she was getting it from was not home so it would take some time. The officers observed Margie making a phone call, after which she told them that it would be approximately one hour before she could deliver. The officers left the Pastime and returned at approximately 9:00 P.M. The officers entered into a conversation with a male patron who told them there was a man in the pool room trying to sell marijuana. Investigator Moore told the patron to tell the man in the pool room that they were interested in buying. The patron went to the pool room and spoke to a male, who later came over to the officers and introduced himself as George. George (who was later identified as George W. Osborne) told the Officers that he had heard they were interested in buying, and Moore explained that they had ordered one-quarter ounce each but it did not look like it was going to arrive. George stated that he could sell them one-quarter ounce for $35.00 and the officers agreed to buy it. George left the officers and went to speak with Margie Adams. He returned shortly and asked the officers if they were getting their marijuana from Margie Adams. Russ stated that he would rather not say, and George said it was okay because he and the waitress were getting from the same person and that he and Margie had discovered that they were each ordering for the same persons. Russ told Margie that he did not want to cut her out of a sale, and she stated that it was okay to buy from George, that it was just like buying from her and she would get credit for the sale. During the time that Russ was talking to Margie, George handed Investigator Moore an orange tablet which he stated was a Preludin. Shortly thereafter, the officers and George walked outside to a motorcycle parked near the door and George laid two plastic baggies containing marijuana on the seat of the motorcycle. Each officer obtained one of the baggies of marijuana and each paid George 535.00. On March 22, 1984, Investigators Moore and Russ returned to the pastime. Margie was not on duty that night. Moore and Russ spoke to two waitresses who were on duty, Karen and Sionna, and told the waitresses they had purchased marijuana from George and were waiting to buy some more from him. The officers asked Sionna if George was an all right guy to deal with and she said that he was. Later that evening when George entered the Pastime he spoke to Sionna and then went back outside where the officers observed him talking to customers near the front door. A few minutes later George approached the officers and asked how they had liked the marijuana he had sold them. The officers said it had been fine and they asked George if he could obtain some more marijuana and some more "speed" or Preludin. George said he could obtain both and he left the premises on his motorcycle. When George returned he approached Investigator Russ and handed him five orange tablets which were supposed to be "speed" or Preludin. Investigator Russ paid George $25.00 for the tablets. George told the officers he had been unable to obtain marijuana, but would have some the following morning. The five tablets sold to Investigator Russ were later tested and found to contain caffeine, but they did not contain any controlled substances. On March 22, 1984, Detective Jonathan McNeil and Investigator Pam Hellett were also at the Pastime. They were seated at a booth with other officers. A male who identified himself as Phillip (later identified as Leroy Phillips) sat with the officers for a while. He got up to leave and told Detective McNeil that he would be back, he just needed to find something for his head. When he returned, McNeil asked Phillips where he could get something for his head and Phillips got up and said that he would go see his sister, he knew she had something. Phillips later identified his sister as Gloria, the manager of the Pastime. When Phillips returned to the table, he pulled a package of cigarettes from his pocket and showed Detective McNeil two small white square pieces of paper under the cellophane portion and stated that they were two hits of acid. McNeil paid Phillips $10.00 and took the two pieces of paper and inserted them into his cigarette package. Phillips told McNeil that the acid was "Mr. Natural." The pieces of paper were subsequently tested and found to contain LSD. The male previously identified as George came and sat with the officers and they began discussing whether a man seated at the next booth was a police officer. Investigator Hellett said to George, "Hurry up and give me everything you have," and George reached into his jacket and removed several orange tablets and some marijuana, which he placed in Investigator Hellett's lap. Hellett told George that she did not accept anything that she did not pay for and he asked how much she would like to buy. Detective McNeil asked George how much he was selling the tablets for and he stated that he would sell them to the officers for $3.00 apiece although he had sold them to other Persons for $5.00. McNeil agreed to buy five tablets and, in an attempt to be discreet, handed George $15.00 under the table. George handed the tablets to McNeil under the table, although McNeil stated that he was the only one trying to be discreet about the transaction. Investigator Hellett bought seven tablets from George in exchange for $21.00. George gave Investigator Hellett a small amount of marijuana and told her to try it and see if she liked it. The substance given to Investigator Hellett was subsequently tested and found to be marijuana, and the pills were tested and found to contain caffeine, but not to contain any controlled substance. Late in the morning on March 23, 1984, Investigator Moore went to the licensed premises to obtain the marijuana previously promised by George. George was not at the Pastime, and Moore talked to the bartender Teresa about being there to obtain marijuana from George. Teresa stated that George was probably getting it from "us." After conversing with Teresa about other drug transactions, Moore told Teresa that it looked like George was not going to arrive and Teresa stated that she would give him some. She put her purse on the bar and removed from it a small portion of marijuana and placed it in a napkin lying on the bar. Investigator Moore observed Mr. Michael Whitfield and his wife on the licensed premises, but neither of them were in sight at the time Teresa placed the marijuana on the napkin. Moore also talked to Teresa about cocaine and she said she could obtain some for him for $100.00 a gram. On March 26, 1984, Investigators Moore and Russ returned to the Pastime. They asked the waitress Margie Adams if she could get them a quarter ounce of marijuana. At first she said she could not, because she said she had had a fight with her supplier. Later she said she could obtain some marijuana from someone else, but that she did not know anything about the quality of the marijuana. The officers told Margie that they would trust her judgment on the matter. Investigator Russ paid Margie $40.00 for the marijuana, $5.00 of which was a tip for her. At about 8:55 P.M. that evening Margie Adams approached Investigator Moore. She had a napkin on a tray and told Moore that it was in the napkin. Investigator Moore took the napkin from the tray. Inside the napkin was a small plastic bag containing marijuana. On April 2, 1984, Investigators Moore and Russ returned to the Pastime. The waitress Margie Adams told the officers that she was leaving at 8:00 P.M. and Investigator Russ advised her that they would like to purchase one-quarter ounce of marijuana before she left. Margie stated that she would see what she could do and later came over and said that she had arranged for some marijuana to be delivered and that if it did not arrive before she left, one of the other waitresses would deliver it to them. A short time later Margie returned and showed Investigator Russ a towel on her tray. A plastic baggie of marijuana was under the towel. Investigator Russ took the plastic baggie of marijuana and paid Margie for it. Then he placed the baggie on the table and both investigators wrote their initials on it. On April 9, 1984, Investigators Moore and Russ returned to the Pastime. Margie Adams approached the officers and Russ asked whether she could get them some more of the same marijuana. She said she could and asked how much they wanted. The officers openly discussed the amount to be purchased and agreed upon one-half ounce, which Margie stated would be cheaper than purchasing two one-quarter ounces. Russ asked Margie if she could get some LSD or acid. Margie later came over to the officers and stated that the marijuana had arrived but that she could not deliver it because an undercover officer was seated at the bar. Margie later returned and sat beside Moore and handed him a white napkin covering a clear plastic baggie of marijuana. The officers paid her for the marijuana. Margie told them that she had not been able to get any acid. Investigator Russ told her he would be in town later on and would like to have a couple of hits of acid. On April 11, 1984, Investigator Russ went to the Pastime and asked Margie Adams if she had been able to obtain any acid or LSD. Margie said she had been unable to get it yet. Russ told her he was going to Montego Bay (another bar) and Margie said that if she was able to get the acid she would bring it to him at Montego Bay later that night. Russ paid her $20.00 for three hits of acid at $5.00 each, plus $5.00 as a tip for her. On April 16, 1984, Investigators Moore and Russ entered the Pastime to find out if Margie Adams had been able to obtain the acid Investigator Russ had paid her for. Margie was not present when the investigators arrived. When she came in later, she told the officers she had been unable to obtain the acid since she had been out of town for her grandmother's funeral. George Osborne was on the premises and Investigator Moore asked George if he had a quarter- ounce of marijuana to sell. George stated that he could get it for them in a few seconds. George left and returned shortly, motioning to investigator Moore to follow him. Moore followed George to the restroom and George handed Moore a plastic baggie containing marijuana. As Moore was examining the baggie, two white males entered the restroom, observed George and Moore, commented on how nice the marijuana looked, and asked how much it cost. Officer Moore paid George $45.00 for the marijuana and returned to the table and handed the baggie to Russ. Russ opened the baggie in plain view of other patrons and smelled the contents. Margie Adams, who was waiting on another nearby table, observed the bag of marijuana and commented to the investigators that she saw that they had gotten what they were looking for. Russ then put the baggie of marijuana in his shirt pocket so that half of it was visible and visited around the bar for several minutes. One patron told Russ that he was about to lose something out of his pocket. On April 25, 1984, Investigators Moore and Russ entered the Pastime again. They asked Margie Adams if she had been able to obtain the acid Russ had paid her for. Margie told the investigators she had been unable to obtain the acid. Investigator Moore contacted George Osborne and asked whether George could get the officers a quarter-ounce bag of marijuana and also asked how long it would take. Shortly thereafter George and the two investigators walked outside to George's motorcycle and George removed from his shoe a wallet containing two plastic baggies. As George handed Moore one of the baggies, a white male walked up. George asked what he wanted and he said he wanted a bag. George went inside to make change for the $40.00 Moore had given him. While George was inside the white male said that he had been told to go to the Pastime if he wanted drugs. George returned with Moore's change and then walked around to the back of the establishment with the white male. The baggie George had handed to Moore contained marijuana. In brief summary of the foregoing, during the 7-week period from March 7, 1984, through April 25, 1984, the following events occurred on the licensed premises: 3/07/84 Employee Margie Adams sold marijuana to Investigator Moore. 3/12/84 Employee Margie Adams sold marijuana to Investigator Moore. 3/19/84 Employee Margie Adams agreed to sell marijuana to Investigator Moore and Russ, but she did not sell them anything that day. 3/19/84 Patron George Osborne, with the knowledge of employee Margie Adams, agreed to sell marijuana to Investigator Moore and Russ. (The actual sale took place outside the licensed premises.) 3/22/84 Patron George Osborne, with the knowledge of employee Sionna, agreed to sell marijuana and "speed," or Preludin to Investigators Moore and Russ, and actually sold 5 tablets to Investigator Moore which were supposed to he "speed," or Preludin. 3/22/84 Patron Leroy Phillips sold fro tabs of LSD to Detective McNeil. 3/22/84 Patron George Osborne gave some marijuana to Investigator Hellett, sold 7 tablets that were supposed to be "speed," or Preludin to Investigator Hellett and sold 5 of the same tablets to Detective McNeil. 3/23/84 Employee Teresa gave some marijuana to Investigator Moore and told him she could obtain cocaine for him. 3/26/84 Employee Margie Adams sold marijuana to Investigators Moore and Russ. 4/02/84 Employee Margie Adams sold marijuana to Investigators Moore and Russ. 4/09/84 Employee Margie Adams sold marijuana to Investigators Moore and Russ and agreed to sell Russ some LSD. 4/11/84 Employee Margie Adams agreed to sell LSD to Investigator Russ and accepted payment for same, but did not deliver anything to him that day. 4/16/84 Patron George Osborne, with the knowledge of employee Margie Adams, sold marijuana to Investigator Moore. 4/25/84 Patron George Osborne agreed to sell marijuana to Investigators Moore and Russ. (The actual sale took place outside the licensed premises.) The vast majority of the drug transactions described above were accomplished in a relatively discreet manner. Most of the transactions took place in a booth and involved delivery of marijuana that was covered with a towel or a napkin. During the period of the investigation which led up to this case, the police officers and DABT investigators did not see any illegal drug usage or any illegal drug transactions on the licensed premises other than the ones they were personally involved in. Mr. John Michael Whitfield, the President of Tupelo Management, Inc., and co-owner with his wife of all of the corporation's stock, takes an active role in the management of the business because it is his family's sole source of income. He usually visits this licensed premises six days per week and he spends between 40 and 50 hours per week at the licensed premises. Mr. Whitfield is well educated. His formal education includes a Bachelor of Science degree in Social Welfare and a Master's degree in Social Work, both from Florida State University. After receiving his Master's degree, Mr. Whitfield was employed for three years as the Assistant Director of the Mental Health Center in Panama City, Florida. Thereafter he also worked for a year as Director of the Gerontology program at the same Mental Health Center. His work at the Mental Health Center included work in the area of drug abuse and alcoholism programs. Mr. Whitfield has never used any type of illegal drugs and is opposed to the use of illegal drugs by others. Mr. Whitfield has a very responsible attitude towards the fulfillment of his obligations and responsibilities as an alcoholic beverage licensee. For example, prior to January 1984, Mr. Whitfield had always used his own employees as doormen to check identification of patrons. Immediately after two minors were found on the licensed premises in January of 1984, Mr. Whitfield not only fired the doorman who was on duty that night, but arranged with Florida Security Service to provide extra uniformed security personnel to check the identification of patrons. When Mr. Whitfield met with DABT representatives concerning the problem with the two minors, he was advised that the two major priorities of the DABT were minors and drugs. Mr. Whitfield had several meetings with all of his employees in which he told them explicitly that he did not want to have any problems with minors or drugs on the licensed premises. He told all of the employees that they would be fired if they were responsible for any problems on the licensed premises related to minors or drugs. He also told the employees they would not be given any second chances about such matters, but would be fired for a first offense. Prior to May 2, 1904, when the Notice To Show Cause was served on the Pastime, Mr. Whitfield had never seen anything that caused him to suspect there was a drug problem at the Pastime. The security service never told him that there was a drug problem at the Pastime or that they suspected a drug problem. The uniformed police officers who walked through the Pastime practically every night never told him he had a drug problem on the licensed premises. Mr. Whitfield usually requires prospective employees to fill out a written application form. He usually does not check references, but he usually does check with prior employers. Mr. Whitfield will not hire people who have previously worked in what he considers to be dives. His usual employment practices notwithstanding, Mr. Whitfield has occasionally failed to require a written application and has occasionally failed to check the background of new employees. Some of the employees and former employees he failed to check were the causes of the present charges against Mr. Whitfield. One former employee whose background was not checked was George Osborne. Mr. Whitfield has barred several patrons in the past for improper conduct on the licensed premises and he has barred a suspected drug dealer from patronizing the Pastime. The DABT sent a letter to all alcoholic beverage licensees in south Florida in March of 1984 advising them of the DABT's priorities. The main priorities were the prevention of sales of alcoholic beverages to minors and the prevention of illegal drug activities on the licensed premises. The letter was not sent to alcoholic beverage licensees in north Florida, but will be sent to them later.
Recommendation For all of the foregoing reasons I recommend that the Division of Alcoholic Beverages and Tobacco enter a Final Order finding that the Respondent has violated Sections 561.29(1)(a) and (c), Florida Statutes, ordering the Respondent to pay a civil penalty of five hundred dollars ($500.00) for each of the violations charged in the first six paragraphs of the Notice To Show Cause (a total of three thousand dollars), and suspending the Respondent's alcoholic beverage license for a period of six months. DONE and ORDERED this 29day of October, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1984.
The Issue Whether or not on or about the 19th day of August, 1975, the Respondent, Leartis Frazier, his agent, servant or employee, one Robert Henry Williams did unlawfully sell an alcoholic beverage, to wit: one 16 ounce can of Budweiser beer, in a manner not permitted by the Respondent's beverage license, to wit: while the license was suspended, contrary to Section 562.12, Florida Statutes.
Findings Of Fact On August 19, 1975, the beverage license which the Respondent, Leartis Frazier, held with the State of Florida, Division of Beverage was on active suspension. The notice of suspension had been served on Leartis Frazier at Frazier's Grocery, 2273 Commonwealth Avenue, Jacksonville, Florida. Furthermore, a sign had been posted at that address which indicated that the license of Leartis Frazier t/a Frazier's Grocery was suspended. On August 19, 1975, while the license was under suspension an officer of the Jacksonville Sheriff's Office observed one David Brooks enter Frazier's Grocery, without any objects in his hands. This observation occurred after the officer had encountered Brooks moments before in the conduct of an investigation and Brooks had not been carrying any objects in his hands at that moment either. Several minutes after entering the Frazier's, the same David Brooks exited Frazier's Grocery with a paper bag in his hands which contained one 16 ounce can of Budweiser beer. The Officer then entered the licensed premises and went to the beer counter and opened it up and discovered one can of beer missing from a six-pack container of Budweiser beer. At the time the officer made this investigation the sign which had been placed in the window of Frazier's Grocery to indicate the license suspension was being displayed. A Mr. Williams was sitting behind the counter inside the licensed premises as an employee, agent or servant of the Respondent at the time the officer of the Jacksonville Sheriff's Office discovered the missing can of beer. Mr. Brooks, when questioned about where he had bought the can of beer, after discussion, indicated that he had bought it at Frazier's Grocery. By Mr. Brooks' statement and the officer's observation, it is established that Mr. Williams sold the Budweiser beer to Brooks. The Mr. Williams was identified in the hearing, as being Robert Henry Williams.
Recommendation It is recommended that the license of the Respondent, Leartis Frazier, be suspended for a period of one year for the violation as established in the hearing on this Notice to Show Cause. DONE and ENTERED this 14th day of September, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Leartis Frazier 2273 Commonwealth Avenue Jacksonville, Florida 32209 Charles F. Tunnicliff, Esquire Division of Beverage The Johns Building 725 Bronough Street Tallahassee, Florida 32304
The Issue The issues are: (1) whether Respondent violated Section 562.02, Florida Statutes (2007),1 by unlawfully possessing certain alcoholic beverages on its licensed premises which were not authorized to be sold under its license; (2) whether Respondent violated Subsection 561.14(3), Florida Statutes, by purchasing or acquiring alcoholic beverages for the purpose of resale from persons not licensed as distributors; and (3) if so, what penalty or administrative fine should be imposed.
Findings Of Fact Respondent is, and was at all times relevant hereto, the holder of alcoholic beverage License No. 62-10299, Series 2-COP, which permits the sale of beer and wine, but no other alcoholic beverages, for consumption on the premises. Petitioner seeks to impose sanctions on the license of Respondent. Mr. Pagini owned and operated Latin American Café, a restaurant located at 3780 Tampa Road, Oldsmar, Florida. The restaurant serves Latin American and South American foods and desserts, some of which contain alcoholic beverages in preparation of said food. At all times relevant to this proceeding, the menu for Latin American Café stated that only one type of liquor was used for cooking. Respondent was placed on the Division's "No Sale" list on August 21, 2007, for failure to renew its license. As a result of being on the "No Sale" list, distributors were prohibited from selling alcoholic beverages to Respondent. Nevertheless, as discussed below, a receipt dated August 23, 2007, shows that a distributor sold alcoholic beverages to Respondent. Due to Respondent's being placed on the "No Sale" list, Casey Simon, a special agent with the Division, conducted an inspection of Latin American Café on November 21, 2007. During the inspection, Agent Casey discovered beer and liquor on the premises. The beer was located in a cooler behind the bar at the front of the premises, and the liquor was located in the manager's office and in the kitchen cupboards. The liquor discovered on Respondent's premises on November 21, 2007, consisted of the following: (a) one, one-quart bottle of Mr. Boston Crème De Cassis; (b) one, 750-millimeter bottle of Cinzano Rosso Vermouth; (c) one, 750-millimeter bottle of Chevas Regal Whiskey; (d) one, 750-millimeter bottle of Sambuca Di Amare; (e) one, 1.75-liter bottle of Heritage Triple Sec; (f) one, 250-millimeter bottle of Chasqui Licor De Café; (g) one, 750-millimeter bottle of Truffles Liquor; (h) one, one-liter bottle of Sambroso Licor De Café; and (i) one, .75-liter bottle of Heritage Rum. Respondent contends that seven of the nine kinds of suspect liquor found on the premises were used for cooking, mostly desserts, at the business. The remaining two liquors found on the premises, Chevas Regal Whiskey and Sambuca, were for Mr. Pagani's personal use. The Chevas Regal Whiskey was a present that had been given to Mr. Pagini, and at the time of the inspection, the whiskey was in a box in his office. The Sambuca Di Amare is a "digestive" liquor made in Italy and was for Mr. Pagini's personal use. Although most of the liquor was found on Respondent's premises during the inspection, Respondent's menu does not list any of the suspect liquors as an ingredient in any of the menu items. The beer discovered on Respondent's premises on November 21, 2007, consisted of the following: (a) 41, 12-ounce bottles of Bud Light, with a born date of September 2007; (b) six, 12-ounce bottles of Budweiser; (c) 27, 12-ounce bottles of Miller Lite; (d) 12, 12-ounce bottles of Heineken; and (e) 19, 12-ounce bottles of Corona. The Bud Light's "born date" of September 2007, is the date in which the beer was manufactured. Thus, it can be reasonably concluded that beer with a "born date" of September 2007, cannot be purchased prior to that month. During the November 21, 2007, investigation, the Division's agent requested invoices for the beer found on the premises. Respondent produced a receipt from Sam's Club dated November 16, 2007, which reflected the sale of various items to a "member," identified, presumably, by a membership number. Among the items purchased were other documents provided to Agent Simon which showed that Latin American Café was the member on the November receipt. Next to the name of each kind of beer was the number "24" which, presumably, indicated the number of bottles of beer that were purchased. Mr. Pagini testified that many of the items purchased from Sam's Club on November 16, 2007, including the Bud Light and the Heineken, were for personal use. At this proceeding, Respondent introduced into evidence copies of two receipts which reflect that it purchased alcoholic beverages from two authorized distributors, J.J. Taylor Distributors Florida, Inc. ("J.J. Taylor Distributors") and Great Bay Distributors, Inc. ("Great Bay Distributors"). The receipts were dated August 9, 2007, and August 23, 2007, respectively. The receipt from J.J. Taylor Distributors dated August 9, 2007, reflects that Respondent purchased the following alcoholic beverages: (a) 24, 12-ounce bottles of Becks beer; (b) 24, 12-ounce bottles of Braham beer; (c) 24, 12-ounce bottles of Heineken beer; (d) 24, 12-ounce bottles of "Lite" beer; and (e) 24, 12-ounce bottles of Presidente. The receipt from Great Bay Distributors dated August 23, 2007, reflected the purchase of the following alcoholic beverages: (a) 24, 12-ounce bottles of Budweiser beer; (b) 24, 12-ounce bottles of Corona beer; (c) 24, 12-ounce bottles of Modesto Especial; and (d) 24, 12-ounce bottles of Negro Modesto. Despite Respondent's providing receipts from distributors, no plausible explanation was provided to establish when and from whom the Bud Light, discovered on Respondent's premises on November 21, 2007, was purchased. The receipts from the distributor were dated about one month prior to the Bud Light's born date of September 2007. The suspect Bud Light has a born date of September 2007, which is after the dates of the distributor receipts and after Respondent was placed on the "No Sale" list. No evidence was offered to establish where the suspect beer, Bud Light, was purchased or acquired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order: (1) finding that Respondent, Latin American Café and Market, Inc., d/b/a Latin American Café, violated Section 562.02, Florida Statutes; (2) finding that Respondent did not violate Subsection 562.14(3), Florida Statutes; (3) imposing an administrative fine of $1,000.00 for the violation of Section 562.02, Florida Statutes; and requiring the fine to be paid within 30 days of the final order. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2009.
