The Issue Respondent is charged with a single incident of selling beer to a minor. The issue is, therefore, if that incident occurred, what disciplinary action should be taken? The Division of Alcoholic Beverages and Tobacco Notice to Show Cause dated September 18, 1984, alleges: On or about the 19th day of August, 1984, you, JEFFREY NELSON ADKINS, a licensed vendor, and/or your agent, servant or employee, did sell, give, and/or serve alcoholic beverages, to wit: three (3) Michelob beers to a person, JOHN JOSEPH KELLAT, under the age of 19, contrary to F.S. 562.11(1). At the hearing, by stipulation, six exhibits were admitted: the Notice to Show Cause, the Request for Hearing, Petitioner's Request for Admissions, Respondent's Answer to the Request, Petitioner's First Set of Interrogatories and Respondent's Response to Interrogatories, and Affidavit of the minor, John Joseph Kellat. Petitioner called three witnesses: John Joseph Kellat; Rufus Blanton, beverage officer for the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco; and William Moore, a New Smyrna Beach police officer. Respondent also called three witnesses: Michael Block, an employee of Brew- thru during the summer of 1984; Troy Long, Market Manager at the Publix supermarket in New Smyrna Beach; and the Respondent, Jeffrey Nelson Adkins.
Findings Of Fact Both parties submitted Proposed Findings of Fact and Conclusions of Law. Those have been carefully reviewed and considered. Findings of fact which are supported by the evidence have been incorporated herein, unless those findings are subordinate, cumulative, immaterial or unnecessary. More specifically, Petitioner's Proposed Finding of Fact #2, regarding the employee's failure to deny that he sold the beer, is wholly immaterial in light of Petitioner's chief witness' description of the salesperson and his identification of the licensee as the individual who made the sale. As to Proposed Finding of Fact #3, the only evidence that John Kellat purchased beer on prior occasions was his bare, non-substantiated statement to that effect. Such evidence is neither competent nor substantial when viewed in the context of his testimony as a whole.
Recommendation On the basis of the foregoing, I recommend that the Director of the Division of Alcoholic Beverages and Tobacco enter a final order in this case dismissing the charge against the licensee. DONE and ORDERED this 10th day of October, 1985, in Tallahassee, Florida. MARY CLARK, 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 October, 1985. COPIES FURNISHED: Thomas A. Klein, Esquire Staff Attorney Dept. of Business Regulation The Johns Bldg. 725 South Bronough Street Tallahassee, Florida 32301 William Clay Henderson, Esquire HENDERSON & HENDERSON, P.A. Post Office Box 1840 New Smyrna Beach, Florida 32070-1840 Richard B. Burroughs, Jr. Secretary Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, Florida 32301 Harold F. X. Purnell, General Counsel Department of Business Regulation The Johns Bldg. 725 S. Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages & Tobacco 725 S. Bronough Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to these proceedings, Respondent, doing business as The Knight Out, was the holder of alcoholic beverage license number 72-79, series 1-COP. Prior to the hearing . . . in this cause, Respondent had turned in his license to the Petitioner. To the rear of the licensed premises, Respondent operated a bottle club known as The Knight Club. The Knight Club is attached to and shares restroom facilities with The Knight Out. On March 27, 1975, Respondent was served with a "Notice to show cause why beverage license should not have civil penalty assessed against it or be suspended or revoked" on the grounds that on Sunday, January 26, 1975: his employee, Vicki Lynn Williamson, at approximately 2:00 am., did sell at the licensed premises, an alcoholic beverage, a can of Budweiser beer, to beverage officer L. E. Williams during the time that the sale and consumption of alcoholic beverages is prohibited, in violation of City of Perry Ordinance 394 enacted pursuant to F.S. s. 562.14; at approximately 4:00 a.m., he sold at the licensed premises an alcoholic beverage, one can of Budweiser beer, to beverage officer Williams in violation of City of Perry Ordinance 394; at approximately 5:00 a.m., he sold at the licensed premises an alcoholic beverage, one can of Budweiser beer, to beverage officer Williams in violation of City of Perry Ordinance 394; at approximately 6:05 a.m., he refused to admit to the licensed premises beverage officer Jack Garrett, while in the performance of his official duties, contrary to F.S. s. 562.41; and at approximately 6:05 a.m., he had in his possession, custody and control, at the licensed premises a partially full 4/5 quart of Smirnoff Vodka, an alcoholic beverage not authorized to be sold by him, in violation of F.S. s. 562.02. Beverage officer L. E. Williams went to The Knight Out the weekend of January 24, 1975, in order to conduct an undercover investigation of the licensed premises. He observed the Respondent, between 11:30 p.m. and 12:00 a.m. on January 24th, remove four cases of beer from The Knight Out and place them into a small room in The Knight Club portion of the premises. At about 1:00 a.m. on January 25th, Williams paid a $2.00 cover charge, entered The Knight Club and remained there until 6:00 a.m. On Saturday night, January 25th, beverage officer Williams again went to The Knight Out and, at about 11:30 p.m., again observed Respondent moving five cases of beer from The Knight Out to the rear portion, The Knight Club. Williams entered The Knight Club during the early hours of January 26, 1975, carrying a can of beer with him. He left at approximately 2:30 a.m., met with other beverage agents, and returned to The Knight Club at about 3:45 a.m., paying the cover charge of $2.00. At 4:00 a.m. and again at 5:00 a.m. on January 26, 1975, Williams purchased from Respondent Poppell cans of Budweiser beer at seventy-five cents per can. Williams retained control of the two beer cans and at about 6:30 a.m. he tagged them as evidence. They were admitted into evidence at the hearing as Exhibits 4 and 5. At approximately 6:05 a.m. on January 26, 1975, beverage officer Jack Garrett, along with several other law enforcement agents, knocked on the front door of The Knight Club seeking entrance thereto. Respondent told Garrett to get in front of the peephole on the door so that he could see who was there. Garrett, who had known Respondent for some fifteen years, testified that he showed his identification card to Respondent through the peephole, whereupon Respondent replied that he would not let him in. Beverage officer T. A. Hicks, present with Garrett at the time, confirmed these events. Respondent and two other witnesses present at the scene testified that Respondent asked the persons at the front door to identify themselves, but that no response was received. Shortly thereafter, Officer Garrett, along with other law enforcement officers, went around to the other side of The Knight Club and entered, without knocking, the ladies rest room which led to the inside of The Knight Club. Once inside, they met Respondent leaving a small room with a handful of liquor bottles. One such bottle was seized - - a partially filled bottle of Smirnoff Vodka - - and was received into evidence at the hearing as Exhibit 6. Shirrell Woodalf testified that she had come to The Knight Out on the morning in question with another couple. When the other couple left, they gave her their bottle of Smirnoff Vodka. She then gave the bottle to Respondent to keep for her in his office. Woodalf identified Exhibit 6 as being the same bottle as that left with her and given to Respondent. Four witnesses who often frequented The Knight Club testified that patrons of the Club always brought their own beer or other alcoholic beverages into the Club. Respondent would cool their beer for them and keep their bottles in his office if they so desired. Respondent sometimes charged a small fee for cooling the beer and he sold setups for mixed drinks. These four witnesses never saw Respondent sell either beer or other alcoholic beverages in The Knight Club.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that: Paragraphs 1 and 5 of the notice to show cause be dismissed; Respondent be found guilty of violating F.S. ss. 562.14 and 562.41, as set forth in paragraphs 2, 3 and 4 of the notice to show cause; and Respondent's alcoholic beverage license be revoked. Respectfully submitted and entered 26th day of May, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Charles Nuzum Director Division of Beverage 725 South Bronough Street Tallahassee, Florida Charles Tunnicliff, Esquire Department of Business Regulation 725 South Bronough Street, Room 210 Johns Building Tallahassee, Florida 32304 Conrad C. Bishop, Jr., Esquire Weed & Bishop P.O. Box 1090 Perry, Florida 32347
Findings Of Fact At some time prior to March 1, 1963, Randall R. Aleno, a former deputy sheriff with the Volusia County, Florida, Sheriff's Department; his brother, Mick Aleno; his father, Charles Aleno; and his wife, Patty Aleno, formed Aleno's Enterprises, Inc., a Florida corporation, with Randall Aleno owning more than 50 percent of the corporate stock. Randall Aleno is the corporate president; Mick Aleno,the vice president; Charles Aleno, the treasurer; and Patty Aleno, the secretary. Having been a long-time resident of Volusia County, Randall Aleno saw a need for and developed a concept for a form of mobile concession stands to operate on the St. Johns River in the general area of Volusia County and the contiguous counties north and south of it. Before taking any definitive steps toward implementing this idea, Randall Aleno, on January 10, 1983, wrote letters both to the Commanding Officer of Port Operations for the U.S. Coast Guard in Jacksonville, Florida, and a representative of the Volusia County Health Department outlining in general terms the nature of his plan and seeking approval of those agencies for the project. Apparently, neither agency interposed any objection. He also contacted the local office of the Petitioner, Division of Alcoholic Beverages and Tobacco, where he spoke with Agents Dunbar, Blanton, and Clark, outlining his proposal. On at least one occasion, Mr. Aleno told Division of Alcoholic Beverages and Tobacco representative Clark, while at the counter in the Division of Alcoholic Beverages and Tobacco Daytona Beach office, that he intended to make bulk sales of beer from boats tied to buoys in the St. Johns River at the time of sales, but which would, when not in operation, be moored at the Tropical Marina in DeLand, Florida. In Dir. Clark's opinion, this type of proposed operation was not covered or provided for in the statutes or in the rules of the Division and he felt the applications for licenses for these operations should he denied. According to Mr. Clark, when he advised Mr. Aleno of this on several occasions, Mr. Aleno still wanted to try and submitted the application. At some time during this period, Mr. Aleno, who had been with the sheriff's office for 14 years, retired from that employment, 1/ purchased three houseboats (one 39-foot boat and two 26-foot boats) which he thoroughly rehabilitated to be capable of storage and the sale of sandwiches and package sales of soft drinks and beer. The sandwiches to be sold were to he pre- wrapped, the beverages in cans, coffee in styrofoam cups with lids, and all condiments would be in sealed packages. No food or drink was to be opened or consumed on board the boats, floating concession stands. When the boats were completed, because he had been told by Division of Alcoholic Beverages and Tobacco agents at the Daytona Beach office that a license would not be issued to a moving establishment, he secured a boat slip for each boat at the Tropical Marina. Mr. Aleno picked up the applications for beverage licenses from the Daytona Beach office. Me also wrote to a beverage supervisor at the Jacksonville office in an effort to prepare the way for his applications. Mr. Aleno was told, at some point in the procedure, that he would need to submit copies of the plans, the boat layouts and details of the operation. All of these, in addition to the letters from the Coast Guard and the county health department, were submitted for consideration with the applications. Mr. Aleno attempted to describe his proposal to each official with whom he came into contact. The local Division of Alcoholic Beverages Supervisor, Lt. Powell, and Mr. Clark admit that Mr. Aleno told them what he planned to do with his operation and how it would work. Lt. Powell reviewed the complete application and discussed it with Mr. Clark. He, Powell, was aware that the sales of unopened packages of beer would be made out on the river and not at the Tropical Marina before the application was forwarded to Tallahassee for action, but there was nothing written in the application to indicate the sales would be made up and down the river. The applications showed the location of the premises as Tropical Marina, Slips 41, 42 and 43. The applications were forwarded to Tallahassee in the normal course of business apparently without recommendation one way or the other by the local office. The licenses were issued on April 1, 1983, showing their location as Tropical Marina, Slips 41, 42 and 43, respectively, Lakeview Road, DeLand, Florida. The 1-APS licenses were issued to Aleno's Enterprises, Inc. trading as Randv's Subs #41, 42 and 43. (License Numbers 74-1565, 74-1566, and 74-1567) Respondent does not operate its boats as a steamship line. It does not carry people, other than employees, on the boats for pay or gratis. None of the boats go more than 100 miles in either direction from the point of mooring. Respondent has not been selling beverages for consumption on the premises, but has been making package sales only of beer off the boats. Barry Schoenfeld, Chief of Licensing Records for Respondent in Tallahassee, reviewed these applications and the license files sometime during the summer of 19-83 after the licenses were issued. His review of the files led him to conclude that the Respondent's operation does not qualify for a 1-APE license because the boats are not permanently moored at their docks. Florida Beverage Laws require, generally, a fixed permanent structure. There are some exceptions for movable vehicles such as steamships, trains, and airplanes and also for pleasure boats which go more than 100 miles per outing. He believes Respondent's boats would qualify for this latter license which, however, is a COP license, not an APS license. He has thoroughly examined the Respondent's applications; and the way the total file reads, it gives him the impression the boats would be moored at the dock in a fixed permanent location. This is why the licenses were issued. Since an obvious mistake was made, and since Mr. Schoenfeld did not know of any provision in the Florida Beverage Law which covers an operation such as that of Respondent, in the summer of 1983, he called Respondent, speaking with Mrs. Patty Aleno, and advised her the operation would have to cease. Upon advice of counsel, Respondent did not stop the operation at that time.
Recommendation That Respondent's licenses be revoked without prejudice so as to permit Respondent or its officers to, in the future, apply for the issuance of a beverage license, if otherwise qualified.
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 Whether Glenda Parris (Respondent), while employed as a West Palm Beach Code Enforcement Officer, violated section 112.313(6), Florida Statutes,1/ by using her position to rent property and/or gain preferential treatment at a court proceeding and, if so, the appropriate penalty. Whether Respondent, while employed as a West Palm Beach Code Enforcement Officer, violated section 112.313(7), by having a contractual relationship that conflicted with her official responsibilities and, if so, the appropriate penalty.
Findings Of Fact At the times relevant to this proceeding, Respondent was employed as a West Palm Beach Code Enforcement Officer. Respondent is subject to the requirements of part III, chapter 112, which consists of sections 112.311 - 112.326, and is known as the Code of Ethics for Public Officers and Employees. Respondent's assigned duties included inspecting, observing, reporting, and enforcing the City of West Palm Beach's code regulating zoning, housing, and the environment Respondent's was assigned a work zone in West Palm Beach that included 231 Lytton Court (the subject property). At the times relevant to this proceeding, Dr. Rhonda Nasser was the owner and/or principal of El Nasco II, a limited liability company. El Nasco II owned the house at 231 Lytton Court. In the summer of 2010, Respondent issued multiple notices of violation to Dr. Nasser relating to the subject property. In July 2010, Respondent and Dr. Nasser met at the subject property to discuss the notices of violation. At that meeting, Respondent asked Dr. Nasser if she could rent the subject property. Respondent was on duty and in her uniform when she negotiated the lease of the subject property. Dr. Nasser entered into an agreement with Respondent for Respondent to rent the subject property for $1,200.00 per month beginning in August 2010. As soon as she moved in to the subject property, Respondent began to complain to Dr. Nasser as to items that needed to be repaired or replaced. Respondent wrote a demand letter on August 31, 2010, that referenced code requirements. On November 3, 2010, wrote a second demand letter that also referenced code requirements. Dr. Nasser testified, credibly, that she believed that Respondent was threatening to use code violations to support her demand as to items that needed to be impaired or replaced. Dr. Nasser's belief was reasonable. Respondent began to withhold rent because Dr. Nasser would not make the improvements Respondent had demanded. At the end of January or the beginning of February 2011, Dr. Nasser initiated eviction proceedings against Respondent due to Respondent's failure to pay rent. John Frasca has been employed as a West Palm Beach Code Enforcement Officer for more than 11 years. Respondent asked Mr. Frasca on two separate occasions prior to May 26, 2011, to inspect the subject property. At the first inspection, Respondent deliberately withheld the fact that she lived at the subject property. At the time of the second inspection, Respondent pressured Mr. Frasca to complete the inspection and informed him that she needed the inspection report for her attorney. A rental license for a residence is the official authorization from the City of West Palm Beach that an owner may rent its residence and that the residence will be inspected. A rental license guarantees to a renter that the residence has been inspected and maintained, and is meeting all current codes. A rental license is required by the city code. Mr. Frasca discovered that the owner of the subject property had no rental license. Respondent should have known that the owner did not have a rental license, and she should have refused to rent the property until the owner obtained a rental license. The eviction proceedings initiated by Dr. Nasser progressed to a court hearing before a judge. At the eviction hearing, Respondent wore her work uniform, which consisted of dark colored pants, a code enforcement badge on her belt, and a shirt with "City of West Palm Beach, Code Enforcement" written on it. Dr. Nasser believed that Respondent wore the uniform in court to give the appearance that Respondent was an expert in code enforcement. Alleged code violations came up as an issue during the eviction hearing. Respondent argued that she withheld the payment of rent because Dr. Nasser would not correct perceived code violations. Following the eviction hearing, Dr. Nasser contacted John Alford, who was, at that time, the Director of Public Works for West Palm Beach. Mr. Alford supervised the West Palm Beach Code Enforcement Department, including the code enforcement officers. There existed an unwritten policy that code enforcement officers were not to wear their uniforms on unofficial business. Mr. Alford had admonished the code enforcement officers, including Respondent, to "take care while wearing the badge." The City of West Palm Beach investigated Respondent's actions and prepared a document titled "Timeline - 231 Lytton Ct., WPB." That document, which is in evidence as Exhibit 9, reflects Respondent's actions regarding the subject property. West Palm Beach uses a computer tracking system called Community Plus System that tracks all activities relating to a building code complaint and/or violation. A code officer puts in all information related to an inspection plus action taken for the property by its owner or a magistrate. The public can go to a website to view the status of a property in the City. The City prepared a report based on the Community Plus System for the subject property. Mr. Alford determined that Respondent had manipulated entries for the subject property in the Community Plus System by changing information relating to inspections. On June 7, 2011, Mr. Alford notified Respondent in writing that he was going to terminate her employment. On July 6, 2011, Respondents' employment was terminated for violations of the City's Employee Handbook and Code of Ethics. Mr. Alford determined that Respondent's actions of proposing and negotiating a lease agreement while on duty and in uniform violated subparagraph 6 of the City's Ethics Policy 4.4, which is as follows: "City representatives shall not engage in financial transactions using non-public information or allow the improper use of such information to further any private interest or gain." Mr. Alford also determined that Respondent violated the City's Code of Ethics provision 4.4 by wearing her City-issued uniform and badge to court for a personal matter giving the appearance that she was acting on behalf of the City.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a Final Order and Public Report that finds that Respondent, Glenda Parris, violated section 112.313(6) and imposes against her a civil penalty in the amount of $500.00. It is further RECOMMENDED that the Florida Commission on Ethics enter a Final Order and Public Report that finds that Respondent, Glenda Parris, violated section 112.313(7) and imposes against her a civil penalty in the amount of $500.00, for a total civil penalty of $1,000.00. DONE AND ENTERED this 4th day of March, 2013, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 4th day of March, 2013.
The Issue The issue is whether the alcoholic beverage license #23-03711 SRX, Series #4-COP issued to Respondent should be revoked, suspended, or otherwise disciplined because the licensee permitted patrons to commit criminal offenses on the licensed premises, including possession, delivery and distribution of controlled substances such as cocaine; because a nuisance is maintained on the licensed premises; or because the premises are a notorious gathering place for those predisposed to deal and deliver controlled substances in violation of Florida law.
Findings Of Fact All Purchase Corp. owns the restaurant and bar known as Flame Steak, located at 216 Lincoln Road, Miami Beach, Florida. The establishment holds a Series #4-COP license, #23- 03711 SRX, for the sale of beer, wine and liquor on the premises. The owner of the licensed premises is Mr. Gilberto Rivas. The licensed location consists of a 35 foot glass store front on Lincoln Road. As one enters the restaurant, immediately to the left there are tables, and farther to the left is the kitchen, which contains an open flame grill (hence the name of the establishment). Going deeper into the restaurant, at the end of the kitchen area is a bar with stools. There are more tables in the center of the room, and to the right is a dance floor. At the right rear of the dance floor is a D.J. booth. At the rear left of the establishment is a staircase leading to an upstairs hall, where the men's and women's bathrooms are located. The establishment uses the services of a security guard firm, Columbo Investigations. One guard ordinarily remains at the entrance to check IDs of patrons, and to pat patrons down, to be sure they are not carrying weapons into the establishment. In the year before the emergency suspension, the Miami Beach Police Department responded to 28 calls of incidents at the licensed premises, but none of these calls were for narcotic violations. Another guard is ordinarily stationed in the hall upstairs just in front of the bathrooms. A third guard occasionally roams the establishment. Both the security guards and the bartender are under instructions from Mr. Rivas to immediately remove any patron who breaks the law, especially one who is disorderly, drunken, or otherwise causing a problem. Although the security guard and bartender also testified that Mr. Rivas had instructed them to remove anyone engaging in any illegal activity such as the sale of cocaine, the Hearing Officer is persuaded that the focus of their activities is to remove drunken or disorderly patrons. There is no evidence of any specific program for observing patrons to watch for illegal narcotics transactions. Indeed, the evidence shows a rather casual attitude on the part of security guards to the presence of narcotics, for at one time during the investigation, one of the security guards was smoking marijuana in the men's room. (See, Finding 11, infra.). On another occasion, a DABT officer openly passed a one inch by one inch baggie of cocaine to another officer on the stairs going up to the men's room, which only elicited a wink from the security guard. (See, Finding 16, infra.). Over time, three confidential informants for the City of Miami Beach Police Department told the police that illegal drug transactions were taking place at Flame Steak. Based on these reports, the Department began an undercover investigation, which included agents from the Division of Alcoholic Beverages and Tobacco of the State. The evidence of the reputation of Flame Steak as a location where drugs can be purchased was rather general, but it did serve to explain a legitimate reason for the Police Department and the DABT to have undertaken their investigation. The police did not go to Mr. Rivas with their information before the investigation began. The investigation began on February 18, 1990, and continued through the arrests made at Flame Steak and the suspension of the alcoholic beverage license on Friday, April 6, 1990. Events of February 18, 1990. Miami Beach Police Detective Elicio Zacarias went to Flame Steak with a confidential informant at approximately 12:30 a.m. on February 18, 1990, in an undercover capacity. He spent several hours there, and the confidential informant introduced him to a man, "Eric" and a woman. After meeting Eric, Detective Zacarias asked Eric "how much he could get for $40" as he was standing at the bar. Eric told him to move to a table about 10 feet from the bar. Shortly thereafter Eric returned, and put a one inch by one inch clear plastic baggie of cocaine on the table top next to Detective Zacarias' hand. Detective Zacarias then gave him $40 cash in plain view; Detective Zacarias flicked the baggie to get residue from the top of the baggie down into its bottom in an open manner. Detective Zacarias then made three or four trips to the men's room in order to appear to be snorting the cocaine. He did not pretend to use the drug in the view of anyone in the public areas of the bar; he merely went to the men's room. That same night, Eric introduced Detective Zacarias to the owner of Flame Steak, Mr. Gilberto Rivas. Mr. Rivas is at the location every night. Eric obviously knew Mr. Rivas, and appeared to be familiar with the other people who worked at the bar. Nothing Eric said to Detective Zacarias implied that Mr. Rivas used cocaine, or had ever seen cocaine being passed in the bar, however. Before the bar closed, Detective Zacarias approached Eric for a second time and asked if he could get some more "to go". Eric replied "sure," and went to the front of the establishment to meet with some other person who Detective Zacarias could not see. Eric returned and gave him a similar baggie in a hand- to-hand exchange over the bar during which Detective Zacarias gave Eric $25. Detective Zacarias then left -the bar at about 4:00 a.m. with the two baggies of cocaine. Events of the night of February 24 and 25, 1990. Detective Zacarias returned to the Flame Steak with DABT Investigator Weiner and the confidential informant at approximately 11:00 p.m. on February 24, 1990, in an undercover capacity. The confidential informant introduced Detective Zacarias to a white latin male at the bar, near the staircase to the restrooms. The confidential informant asked that man if he could get something for later, to which the unidentified man replied "I'll take care of you," and told Detective Zacarias and the confidential informant to go up to the men's room. That unidentified man then came to the men's room and in the open part of the men's room sold a similar small baggie of cocaine for $45. Detective Zacarias and the confidential informant then returned to the bar and sat with Agent Weiner. From time to time they would go up to the men's room to appear to be using the cocaine. At about 1:45 a.m. on the morning of February 25, 1990, they made another buy from the same individual. This time the baggie of cocaine was transferred hand-to-hand but below the bar level. Detective Zacarias paid $45 for the cocaine. He left at about 3:00 a.m. Events of March 3, 1990. Detective Zacarias again went to Flame Steak with another undercovered detective, John Quiros on Saturday March 3, 1990. They met the same unidentified white latin male who had sold Detective Zacarias cocaine on two occasions on the night of February 24 and 25, 1990. Detective Zacarias asked him if there was anything available, and was told to go to the men's room. The unidentified latin male removed a baggie from his wallet, which he sold to Detective Zacarias for $30. Detective Zacarias was at the restaurant for approximately 2-3 hours on that occasion. Events of March 16, 1990. Detective Zacarias again went to Flame Steak on Friday, March 16, 1990, at about 10:30 p.m. with Detective Quiros and DABT Investigator Weiner and a female detective for the Miami Beach Police Department, Kelli Reid. The were also in the company of the confidential informant. After they were there almost two hours, Detective Zacarias was introduced to a black female, and he asked her in Spanish if there was "anything available." She replied "for $40 I can get you enough," and Detective Zacarias gave her $40. She went over to a latin male at the bar who took a small baggie, similar to the other baggies in which cocaine had been packaged on prior occasions, from his right rear pocket and gave it to her; she in turn gave it to Detective Zacarias over the table. At about 1:45 a.m. Detective Zacarias asked the same female if she could get more at a lesser price. She then introduced Detective Zacarias to a different white latin male who came to their table from the bar. She told him in Spanish "bring me back for 30" and about 20 minutes later he gave her a baggie which she gave to Detective Zacarias hand- to-hand at waist level containing cocaine. That same morning at about 3:30 a.m. Detective Zacarias asked the black female if he could buy some "to take home." She took Detective Zacarias to the second man again; he took the cocaine from his shirt pocket, and gave it to her for $35. Detective Zacarias held the cocaine in his right hand, examined it, put it in his pocket while he was at a table about five feet from the bar area. That same morning, Detective Zacarias saw a man whom he knew as "Freddie" snorting cocaine in the men's room as Detective Zacarias entered. At about 4:30 a.m. on March 17, 1990, DABT Investigator Weiner was introduced by the confidential informant to a white latin female, "Atricia." Agent Weiner asked Atricia if she could get cocaine, and she left the area where Weiner had been sitting to approach an unidentified latin male. She returned with a message that she could obtain cocaine for $30. Weiner gave her the $30. She left, and when she returned handed Weiner a clear plastic baggie of cocaine. Events of March 24, 1990. Detective Zacarias returned to Flame Steak with Miami Beach Police Detective Reid and DABT Investigator Weiner early in the morning of March 24, 1990, with the confidential informant. After being in the lounge for 45 minutes to an hour, the black female from March 17, 1990, invited Detective Zacarias to sit at her table in the center of the lounge area, near the dance floor. She was with three other women. Detective Zacarias asked her in Spanish if she could find something, she asked "how much?" Detective Zacarias gave her $40. The black female went to a male at the other end of the dance floor and when she returned she gave Detective Zacarias openly in a hand-to-hand fashion a baggie of cocaine over the table. Later they were joined by Eric. Eric had seen the black female purchase the cocaine she recently had given to Detective Zacarias, and asked for a "hit" of the cocaine. Detective Zacarias gave him the baggie and Eric and the black female consumed the cocaine, not openly on the floor of the establishment, but by going to the restrooms. Detective Zacarias had to make the cocaine available to the black female and to Eric in order to maintain his cover. It is common for people who arrange cocaine purchases to be rewarded by being given part of the cocaine they assisted in procuring. On another occasion that night while going to the men's room, Eric asked Detective Zacarias for a hit and Detective Zacarias gave Eric the cocaine in front of the security guard on the second floor landing. Detective Zacarias offered cocaine to the security guard on the second floor landing, who looked directly at it, declined, but did make the comment "it looks good." DABT Investigator Weiner later saw the guard smoking marijuana in the men's room. Later that evening at about 2:00 a.m. Detective Zacarias asked the unidentified black female if she could get more cocaine. She motioned for money and he gave her $40. The black female approached a latin male with a goatee. She gave him the cash and she returned with a clear plastic baggie of cocaine which she delivered to Detective Zacarias hand-to-hand at table level. Thereafter, at about 2:20 a.m., Investigator Weiner met Atricia and negotiated a cocaine purchase for $40. Atricia gave Weiner a baggie of cocaine in an open fashion over the table and he delivered currency to her in the same way. At about 3:45 a.m., after Detective Zacarias had made several trips to the men's room, he asked the black female if he could get some more, and gave her another $40. She then went to a latin female who had been identified as "Isabelle," and while DABT Investigator Weiner saw currency change hands, he did not see Isabelle deliver any cocaine to the black female because of obstruction of his view by people in the bar. The black female returned and delivered cocaine to him in a baggie hand-to- hand, at table level about 10 feet from the bar near the dance floor. Events of March 31, 1990. Detective Zacarias, Detective Reid, and DABT Investigators Weiner and Mesa (a female) went to Flame Steak with a confidential informant at about 12:15 a.m. on March 31, 1990. Investigator Weiner met the white latin male patron, "Frank," who asked Weiner if he "needed anything tonight?" Weiner said "yes," he would start with 1/2 gram. Frank pulled out a clear baggie and sold it to Investigator Weiner for $20. The barmaid then came to the table to take drink orders. Investigator Weiner passed the cocaine over the table to Investigator Mesa as the barmaid was serving the drinks and Mesa returned the cocaine baggie to Weiner. Although this transaction could easily have been seen by the barmaid, the evidence is not persuasive that the barmaid actually saw it. DABT Investigator Weiner negotiated a second cocaine purchase from Frank in the front part of a lounge, paying $20 for the cocaine. It was passed hand-to-hand at waist level. While they were at Flame Steak, Weiner asked Mesa to accompany him upstairs to the restrooms. They passed the security guard at the top of the stairs, where Weiner openly passed the cocaine to Mesa, which elicited the wink from the security guard which has previously been referred to in Finding 2 above. Finally at about 2:30 a.m. on March 31, 1990, Investigator Weiner negotiated his third purchase from Frank. The cocaine was purchased for $20 which was exchanged for cocaine in the same manner as the prior purchases. General Findings Despite the numerous cocaine transactions which the Miami Beach Detectives or the DABT Investigators were able to make with ease from several patrons on the licensed premises, during the entire time of the investigation, no City of Miami Beach Detective or DABT Investigator ever observed any other patrons making drug transactions at any time. Obviously Eric saw the purchase made by Detective Zacarias on March 24, 1990, because he came over and asked for "hits" from the cocaine purchased, see, Finding 11, supra. It is not clear whether the barmaid taking drink orders on March 31, 1990, saw Investigator Weiner pass cocaine to Investigator Mesa. It is clear, however, that on two occasions the security guard at the top of the stairs saw cocaine, once when it was passed from Detective Zacarias to Eric (Finding 11), the second time when it was passed from Investigator Weiner to Investigator Mesa (Finding 16). That security guard also smoked marijuana in the bathroom on the licensed premises (Finding 11). There is no evidence that any drug transactions took place in front of the owner, Mr. Gilberto Rivas. The music played by the D.J. in the bar was so loud that it would be difficult for bartenders or barmaids to overhear conversations among patrons not in close proximity to those employees. No person who sold or procured the sale of cocaine ever made any statement which could be construed as an indication that Mr. Rivas, or any bartender or barmaid knew that illegal drug transactions were taking place on the licensed premises. On the other hand, the security guards, who may nominally be independent contractors, but who are under the direction and control of the owner, Mr. Rivas, saw, knew about, and participated (through smoking marijuana) in the use of controlled substances on the licensed premises. No security guard called the police or asked any persons he saw with cocaine to leave the premises. Mr. Gilberto Rivas did not take any special precautions to prevent or detect drug activity on the premises. He did tell the employees to remove anyone whom they may see involved in drug activities. Mr. Gilberto Rivas had no actual knowledge that drug transactions were taking place on the licensed premises. He opposes drug trafficking, and he has not knowingly permitted the sale of drugs at the restaurant. He has even thrown people out of the establishment if he suspected that they were involved in drug- related activities. The majority of the cocaine sale transactions took place in plain view on the licensed premises. The sales did not take place only in closed toilet stalls in one of the restrooms, but in the open part of the restroom, and more importantly, at the bar or at tables in the restaurant. The number of people at the premises did make watching drug transactions somewhat difficult. For example, on several occasions the detectives or investigators had their views obstructed, so that the could not view both the exchange of currency and the delivery of cocaine to persons who purchased drugs for them. Nonetheless, in view of the number of drug buys that were made over a relatively brief period of time, and the remarkable ease with which apparently innocuous inquiries about whether "something was available" were immediately recognized by bar patrons as request to purchase cocaine, and the very brief periods of time in which sales were consummated, there was a sufficiently persistent pattern of open drug activity that the problem should have been noticed by a reasonably diligent licensee. Mr. Rivas focused his attention on patrons who became rowdy, drunk, or would not pay their bills, and failed to take reasonable efforts to discover or prevent drug transactions on the licensed premises.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that All Purchase Corp. d/b/a Flame Steak be found guilty of violation of the beverage laws by permitting patrons to violate the laws of Florida on the licensed premises through the use of cocaine and marijuana, and by maintaining a nuisance on the licensed premises because cocaine was used and sold and marijuana was used on the premises, in violation of Sections 561.29(1)(a) and (c), 823.10 and 893.13(2)(a)5. Florida Statutes. As a result, the beverage license should not be revoked, but should be suspended for a period of 60 days, and an administrative fine of $2,000 should be imposed. DONE and ENTERED this 20th day of April, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 20th day of April, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-2189 Rulings on proposals made by the Respondent: 1. Adopted in Finding 1. and 3. Accepted, passim. Adopted in Findings 4-6, except that the amount of cocaine sold in each instance was not proven to be 1/2 gram, but from viewing it, it appear to have been approximately 1/2 gram. Adopted in Finding 7. Adopted in Finding 8. Adopted in Findings 9 and 10, except that the packets were approximately 1 to 1 1/2 inches square, not 1/2 inches square. Adopted in Finding 11, except that the transfer of the cocaine was not done in a concealed manner, because Eric saw it. In addition, the evidence supports the inference that the security guard was either employed by the restaurant, or was under the direct supervision and control of Mr. Rivas. Covered in Findings 14-17. Adopted in Finding 18. Accepted as to Mr. Rivas, the bartender, and the barmaids, but rejected with respect to the security guard. Accepted, see, Finding 2. Rejected because there had been 28 calls, not 4 or 5 calls to the Miami Beach Police Department. Discussed in Findings 19-22. Rulings on proposals made by the Department: Covered in Finding 1. Covered in Finding 3, in a general manner as to the impetus for the investigation. The events of each of the nights is separately explained in the Recommended Order. and 4. Rejected as unnecessary; the material purchased was cocaine. To the extent appropriate, covered in Finding 3. While the printout Sergeant Hunker offered was not admitted, his testimony established the number of police calls to the bar. Separately covered in the Findings relating to the nights of March 16 and 31, 1990. Rejected as unnecessary. Gilberto Rivas had very little useful information in his testimony, due to his limited work at the bar. Adopted in Findings 19 and 22. Generally accepted as it relates to the duties of the security guards at the premises and the instructions from Mr. Rivas. The Notice to Show Cause raises no issue with respect to sales to underaged drinkers, so no findings on that subject have been made. Generally rejected because the testimony of Mr. Rivas was rather confusing, no doubt in great part because of the difficulty in translation. Findings with respect to the time Mr. Rivas spends at the location and what he told his employees are made in Findings 5 and 19-22. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Yale L. Galanter, Esquire Beverly Myrberg, Esquire 2800 Biscayne Boulevard 9th Floor Miami, Florida 33137 Leonard Ivey, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Peter P. Sedler, at all times material to the complaint, has been licensed as a real estate broker, holding license 0079017. He was last licensed as a broker c/o Marshall & Sedler, Inc., 7771 St. Andrews, Lake Worth, Florida 33467. Marshall & Sedler, Inc., at all times relevant to the complaint, had been registered as a Florida real estate broker, holding license 0250511, its last licensed address was 7771 St. Andrews, Lake Worth, Florida 33467. Peter P. Sedler was the qualifying broker and officer for Marshall & Sedler, Inc. On about July 3, 1987, Tom Teixeira was employed as a salesman by Cartier Realty, of 11852 42nd Road North, Royal Palm Beach, Florida. Cartier Realty had solicited, through a direct mailing, listings for property in the Royal Palm Beach area. Ms. Mary Myers, an older woman of about 70 years of age, responded to the advertisement, and gave Mr. Teixeira an open listing for real property which she owned. While Mr. Teixeira placed a Cartier Realty "For Sale" sign on the property, the sign was somehow removed shortly thereafter, and no party dealing with Ms. Myers during the months of July, August and September of 1987 would have been placed on notice that Cartier Realty had any listing on the property. Mr. Sedler had nothing to do with the disappearance of the sign. Ms. Myers had originally acquired the property from her daughter. Long before Ms. Myers gave a listing to Cartier Realty, William Kemp and his wife Gina DiPace Kemp had told Ms. Myers that they were interested in purchasing the property, which is adjacent to the home of Mr. and Mrs. Kemp. When Mr. and Mrs. Kemp first contacted Ms. Myers, she had wanted to keep the property, in the belief that she might eventually convey it back to her daughter. Mr. Teixeira brought to Ms. Myers an offer from David R. and Maureen C. Rose to purchase the land for $11,900. Ms. Myers did not accept that offer, but the Roses accepted Ms. Myers' counteroffer on July 24, 1987, to sell it for $12,300. The sale was contingent upon the buyers obtaining financing; they applied for a loan, and ordered both an appraisal and a survey. The closing was to be held by September 1, 1987. (Contract, paragraph VI.) The closing date passed, without the buyers obtaining the necessary financing, so the contract was no longer effective. On about September 8, 1987, Mr. Teixeira attempted to contact Ms. Myers. He had obtained no written extension of the contract but hoped the sale might yet close. Ms. Myers told Teixeira that she was still willing to sell the property to Mr. and Mrs. Rose. In the meantime, Mr. and Mrs. Kemp became aware that Ms. Myers wanted to sell the property, because they noticed Mr. and Mrs. Rose coming to look at the land, and had engaged them in conversation. Ms. Kemp then contacted Ms. Myers to remind her that they were still willing to purchase the property, and also to say that they would offer more than the current offer on the property. On about September 11, 1987, Ms. Kemp contacted Cartier Realty to say that she also wished to make an offer on the Myers' lot. For a reason which was never adequately explained at the hearing, Teixeira, who should have been working on behalf of the seller, refused to take the offer, even though it was for a higher price. After this rebuff by Teixeira, Ms. Kemp contacted Marshall & Sedler, Inc., in order to try to find a broker who would convey their offer to Ms. Myers and spoke with Patricia Marshall, Ms. Marshall referred her to her partner, Peter Sedler. The Kemps told Sedler that Ms. Myers had told them that she had received a $9,000 offer on the lot. Why Ms. Myers told the Kemps that the Rose offer was $9,000 is not clear, for the actual offer had been $12,300, but Sedler did not know this. There was no listing of the lot in the local board of realtors multiple listing service book, and Mr. Sedler found the address of Ms. Myers through the public records. Mr. Sedler knew from his conversations with Ms. Kemp that Cartier Realty had some involvement with an offer on the property. He called Cartier Realty and tried to speak with the broker handling the matter. He spoke with a man named Tom, who he thought was a brother of the owner of Cartier Realty, Pete Cartier. Mr. Sedler actually talked with Tom Teixeira. Sedler believed he was dealt with rudely by Teixeira, who had hung up on him. Sedler then called Pete Cartier directly to find out whether there was an outstanding contract on the property, and Cartier told Sedler that he would call Sedler back. When Cartier called Sedler, Cartier warned Sedler that he should stay out of the deal. Mr. Sedler became suspicious about Cartier Realty's failure to bring a higher offer to the attention of the seller, and on September 16, 1987, filed a complaint against Tom Cartier with the Lake Worth Board of Realtors. Mr. Sedler then traveled to Pompano Beach to meet with Ms. Myers at her home, and brought with him a contract for sale and purchase of the property, already signed by the Kemps and dated September 14, 1987. While at the door, Ms. Myers asked Peter Sedler if he was "Tom." Ms. Myers knew that she had been dealing with a "Tom" at Cartier Realty, but all her dealings were on the phone, and she did not know what Tom Teixeira looked like. Sedler replied "Yes, but you can call me Pete." Sedler merely intended the comment as humor. At that time Sedler gave Ms. Myers his pink business card and specifically identified himself as Pete Sedler of Marshall & Sedler, Inc. Mr. Sedler asked Ms. Myers if she had any paperwork, such as the prior contract for the sale of the lot which had expired on September 1, 1987, but she did not. While Sedler was with Ms. Myers, she agreed to sell the property to the Kemps for $12,500 and signed the Kemp contract. The Kemps had put the purchase price of $12,500 into the Marshall & Sedler escrow account. Three days later, on September 18, 1987, Mr. Sedler, in the company of his wife Bonnie, presented a post-dated check to Ms. Myers in the amount of $11,020, the net amount due to Ms. Myers for the lot, based on the purchase price of $12,500. When they met this second time he introduced himself again as Pete Sedler and offered Ms. Myers his card for a second time. The post-dated check was conditioned by an endorsement making it good upon a determination that the title to the lot was good. A quit claim deed to Mr. and Mrs. Kemp was executed by Ms. Myers and witnessed by Bonnie Sedler. The post-dated check was given to Ms. Myers because she was about to leave on vacation. The check was given as a sort of security for good title, in return for the quit claim deed which closed the transaction. Mr. Sedler had structured the transaction in this way because he was concerned that someone at Cartier Realty might also attempt to purchase the property from Ms. Myers on behalf of one of their clients. At that time, Mr. Sedler held the reasonable belief that no other party had a subsisting contract to purchase the property from Ms. Myers. Sedler had no reason to believe the Roses would or could pay more for the property than the Kemps offered. Ms. Myers knew that Tom Teixeira from the Cartier realty firm represented a distinct business entity from Marshall & Sedler or Pete Sedler. After a title search showed that Ms. Myers had clear title to the property, the check which Mr. Sedler had given to Ms. Myers on September 18, 1987, with the restrictive endorsement was replaced. Later Mr. and Mrs. Rose tried to close their purchase, but found they could not. Ms. Myers had failed to inform them of the sale she made to the Kemps through Mr. Sedler. Mr. Teixeira, in retribution, filed an ethics complaint about Mr. Sedler with the West Palm Beach Board of Realtors.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint against Peter P. Sedler and Marshall & Sedler, Inc., be dismissed. RECOMMENDED this 14th day of March, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 14th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6183 Rulings on findings proposed by the Department: 1. Rejected as unnecessary. 2 and 3. Adopted in Finding 1. 4 - 6. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 3. Implicit in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 6. Implicit in Finding 6. This does not mean that the contract subsisted, however. Rejected. Ms. Myers was willing to sell the property to Mr. and Mrs. Rose after the contract expired, but she was not under any obligation to do so. Adopted in Finding 7. Rejected, because there was no pending contract. Teixeira never obtained a written extension of the closing date and Ms. Myers was free to sell elsewhere. Rejected. No one could have truthfully told Sedler there was a pending contract. None existed. Rejected, because Mr. Sedler had no reason to believe that there was a subsisting contract for the sale of the property; there was none. Admission number 20 is not to the contrary. Adopted in Findings 10 and 11. Rejected. See, Findings 9 and 10. Rejected as unpersuasive. Rejected as cumulative to Finding 9. Adopted in Finding 14. Adopted in Finding 11. Rejected as unnecessary. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Frank W. Weathers, Esquire Frank W. Weathers, P.A. Post Office Box 3967 Lantana, Florida 33465-3967 Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
