Findings Of Fact Respondent Yazgi has an ownership interest in respondent Stop N Shop and is the only individual named on respondent Stop N Shop's license. Respondent Yazgi has a one-third interest in a different store at a different location in Jacksonville, which is also called Stop N Shop. Sometime before noon on October 15, 1976, Mr. Yazgi took one carton of Winston menthol cigarettes and one carton of Silver Thin cigarettes from this second store and transferred them to respondent Stop N Shop where they were offered for resale and where petitioner's agents discovered them, except for one package which was missing. The store from which respondent took the cigarettes is not a licensed cigarette wholesaler.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner impose a civil penalty against respondent in the amount of one hundred dollars ($100.00) DONE and ENTERED this 6th day of December, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Tom Yazgi c/o Stop N Shop 2039 West 12th Street Jacksonville, Florida Mr. J. M. Ogonowski District 3 Department of Business Regulation 1934 Beachway Road Jacksonville, Florida 32207 Mr. Francis Bayley, Esquire Department of Business Regulation Legal Section Johns Building 725 South Bronough Street Tallahassee, Florida 32304
Findings Of Fact The Parties. The Petitioner the Department of Business Regulation and Professional Regulation Division of Alcoholic Beverages and Tobacco (hereinafter referred to as the "Division") is an agency of the State of Florida charged with responsibility for enforcing Chapter 561 Florida Statutes. The Respondent Riffy's Inc. d/b/a Riffy's Pub (hereinafter referred to as "Riffy's") is a corporation. Scott Grant possesses an ownership interest in Riffy's. At all times relevant to this proceeding Riffy's held Florida alcoholic beverage license number 19-00616 series 2-COP (hereinafter referred to as the "License"). The License authorized Riffy's to sell and possess alcoholic beverages beer and wine only on the premises of Riffy's located at 948 S.W. U.S. Highway 41 Inverness Citrus County Florida. The Division's Investigation of Riffy's. Between September 15 1993 and December 15 1993 the Division conducted an investigation of possible narcotic laws violations at Riffy's. Special Agents Michael Bays Richard Hulburt Denise Deen Ashley Murray and Dean Pescia participated in the investigation. Throughout the investigation the agents involved who had the opportunity to smoke marijuana at Riffy's simulated smoking. No marijuana was ingested so that the agents' perception would not be affected. On a number of occasions the agents witnessed the smoking of cigarettes which appeared to be marijuana. The conclusion that marijuana may have been smoked was based upon the agents' observation of the manner in which the cigarettes were smoked and the smell of what was being smoked. Unless specifically indicated otherwise in findings of fact made in this Recommended Order the evidence failed to prove that marijuana or cannabis was actually being smoked. The findings concerning those incidents are made only as evidence of whether the owner of Riffy's should have suspected that illegal activities were taking place on or near the licensed premises. Results of the Division's Investigation. September 16 1993; Count 1: Agent Hurlburt entered the licensed premises of Riffy's (hereinafter referred to as the "Premises"). Agent Hurlburt met and spoke with a patron named Neil. After discussing the consumption of marijuana Agent Hurlburt and Neil left the Premises and went to a vehicle in the parking lot of the Premises. The parking lot was for the use of patrons of Riffy's. Agent Hurlburt purchased a cigarette suspected of being marijuana from Neil. Analysis of the cigarette revealed that it was cannabis commonly known as marijuana. Agent Hurlburt simulated smoking another suspected marijuana cigarette with three other patrons. A female patron suggested to them that they go around to the side of the Premises to smoke. The purchase and smoking of the marijuana cigarette took place approximately 15 to 20 feet from the Premises. The evidence failed to prove that Mr. Grant or any employee of Riffy's witnessed these events or that Mr. Grant was at the Premises. September 30 1993: Agent Hurlburt returned to the Premises. Agent Hurlburt observed several patrons leave the Premises and go to the east side of the Premises where the female patron had suggested that Agent Hurlburt go to smoke on September 16 1993. They were then observed smoking a cigarette in a manner consistent with the manner in which marijuana cigarettes are smoked: the "joint" is held near the front end with the thumb and forefinger. The smell of the burning material was also consistent with the smell of marijuana. There were windows at the east side of the Premises. Patrons were allowed to smoke cigarettes in the Premises. They were not required to go into the parking lot of Riffy's in order to smoke. d. The individuals involved returned to the Premises. October 6 1993; Count 2: Agent Hurlburt returned to the Premises. He met an employee known as Mike. Mike was later identified as Mike Smith. Mike was a doorman for Riffy's. He collected entrance fees from patrons. Agent Hurlburt told Mike that he wished to purchase marijuana. Mike did not indicate that this was not permissible on the Premises. Mike told Agent Hurlburt that he could not get any marijuana that night but that he would have some the next night. Agent Hurlburt paid Mike for the marijuana that night with the agreement that delivery would be made the next night. The purchase was made in an open manner. No effort was made to speak softly or to hide the exchange of money. October 7 1993; Count 2: Agent Hurlburt returned to the Premises and met with Mike. Mike directed Agent Hurlburt to the restroom. Mike gave Agent Hurlburt a plastic bag containing 5.5 grams of cannabis. October 14 1993; Count 3 and 4. Agent Hurlburt returned to the Premises. Several patrons were witnessed leaving the Premises during a break by the band playing that night smoking what Agent Hurlburt believed to be marijuana and return to the Premises. Agent Hurlburt purchased 5.3 grams of cannabis from Mike. The sale took place in the restroom. Agent Hurlburt also purchased what Mike called "percs". The percs were percocet which were found to contain oxycodone. This transaction also took place in the restroom. October 22 1993: Agent Hurlburt returned to the Premises. Agent Hurlburt attempted to purchase marijuana from Mike but Mike was unable to supply any. October 28 1993; Count 5: Agent Hurlburt returned to the Premises and asked Mike if he could purchase marijuana. Mike sold marijuana to Agent Hurlburt. The money for the marijuana was given openly to Mike inside the Premises. Later Mike gave the marijuana to Agent Hurlburt: Agent Hurlburt was on a concrete slab just outside the front door of the Premises. Mike held the entrance door open and stepped onto the concrete slab where he gave the marijuana to Agent Hurlburt. The marijuana purchased consisted of 5.5 grams of cannabis. October 30 1993: Agent Hurlburt returned and twice simulated smoking marijuana with patrons and "Ron" a member of the band playing at Riffy's that night. These incidents took place outside the Premises in the parking lot. November 4 1993; Count 6: Agent Hurlburt returned and asked Mike to sell him marijuana. Mike agreed to sell 5.1 grams of cannabis to Agent Hurlburt. This agreement was reached in the Premises. Delivery took place just outside the front door the Premises. November 17 1993: Agent Hurlburt returned to the Premises. Agent Hurlburt attempted to purchase marijuana from an employee of Riffy's known as Crystal. Crystal indicated she was unable to find any that night. Crystal did not indicate that marijuana was not allowed on the Premises. Agent Hurlburt left the Premises and sat in a car in the parking lot with a patron known as "Keith." The car was parked in the front of the Premises. Agent Hurlburt simulated smoking what he believed to be marijuana based upon its odor and the manner in which Keith smoked the cigarette. The car windows were open. While in the car with Keith and while the cigarette was burning Mr. Grant and Casey manager of Riffy's walked immediately in front of the car. Casey laughing asked "what are you guys doing." Keith responded "what do you think." November 18 1993: Agent Hurlburt returned to the Premises and attempted to buy marijuana from Crystal. Crystal again told Agent Hurlburt that she could not find any marijuana that night. She again failed to tell Agent Hurlburt that Marijuana could not be purchased at the Premises. November 19 1993: Agent Hurlburt returned to the Premises. Agent Hurlburt observed several patrons smoking what appeared to be marijuana cigarettes in the parking lot of the Premises. They did not attempt to hide what they were doing. The patrons returned to the Premises after smoking. November 20 1993: Agent Hurlburt returned to the Premises. He again observed patrons smoking what appeared to be marijuana cigarettes outside the Premises in the parking lot. The patrons then returned to the Premises. Mike approached Agent Hurlburt inside the Premises and asked if he was interested in purchasing marijuana. Mike was not able however to provide marijuana that night. November 24 1993; Count 7: Agent Deen and Agent Murray went to the Premises together. The agents met Kenny Smith an employee of Riffy's. Kenny worked in the kitchen. Kenny took the agents out of the kitchen through a door to the back of the Premises to smoke what appeared to be and Kenny identified as a marijuana cigarette. The agents simulated smoking the cigarette with Kenny. Kenny also sold a 6.2 grams of cannabis to Agents Deen and Murray. The sale took place outside in the back of the Premises near the kitchen door. c. Mr. Grant was on the Premises when this transaction took place. November 24 1993; Counts 8 and 9: Agent Hurlburt returned to the Premises. Agent Hurlburt asked Mike about purchasing marijuana. Mike agreed. This conversation took place in the Premises. Mike delivered the marijuana just outside the Premises at the front door. Agent Hurlburt was sold 6.5 grams of cannabis. Agent Hurlburt also simulated smoking marijuana with other patrons outside the Premises in the rear near the kitchen door. Agent Hurlburt also purchased 5.4 grams of cannabis from a patron named "Dave." This sale took place outside the Premises. Mr. Grant was on the Premises when these events took place. December 1 1993; Count 10: Agent Hurlburt returned to the Premises. Agent Hurlburt purchased 7.1 grams of cannabis from Mike. The sale took place inside the Premises at the front door. Mr. Grant was on the Premises when the sale took place. December 2 1993; Count 11: Agent Deen and Murray returned to the Premises. The agents were introduced by Kenny to Mr. Grant in the kitchen of the Premises. Inside the Premises Kenny gave Agent Deen what he described as a marijuana cigarette. Kenny smoked the cigarette and Agent Deen simulated smoking it just outside the kitchen door. Kenny sold 3.9 grams of cannabis to the agents outside the kitchen door. December 3 1993: Agent Deen and Agent Murray returned to the Premises. The agents simulated smoking a marijuana cigarette with Kenny outside the kitchen door. The cigarette contained .1 grams of cannabis. Casey opened the kitchen door while they were smoking the marijuana and told Kenny to come inside. December 4 1993; Count 12: Agent Deen and Agent Murray returned to the Premises. Kenny told the agent to wait for him outside the kitchen door where they simulated smoking what they believed to be a marijuana cigarette. While simulating smoking the cigarette Mr. Grant was at his truck approximately 15 feet away. Mr. Grant was speaking on a mobile telephone. The agents and Kenny were in plain view of Mr. Grant. The agents also purchased 2.4 grams of cannabis from Kenny at the same location. December 9 1993; Count 13: Agent Deen and Agent Murray returned to the Premises. Kenny sold and delivered 2.4 grams of cannabis to the agents in a room used by the bands that played at Riffy's. The room is part of the Premises. The agents also simulated smoking what they believed was marijuana with Kenny and a band member outside the kitchen door. Mr. Grant was only a few feet away when the agents were simulating smoking. Mr. Grant who admitted he is familiar with the smell of marijuana was close enough to smell what was being smoked and did not make any inquiry as to what the patrons were doing. December 2 and 9 1993: a. Agent Hurlburt returned to the Premises on these dates. 30b. Agent Hurlburt observed patrons exist the Premises smoke what appeared to be marijuana in the parking lot and return to the Premises. Mr. Grant was outside the Premises on December 2 1993 when patrons were smoking outside. December 10 1993; Count 14: Agent Hurlburt returned to the Premises. Mr. Grant was present at the Premises. Agent Hurlburt told Mr. Grant that he had purchased marijuana "here." Agent Hurlburt did not specify whether "here" meant the Premises Inverness or somewhere else. Mr. Grant however did not ask Agent Hurlburt whether he meant the Premises. Agent Hurlburt then asked Mr. Grant if he knew where he could purchase some sensemilla a type of marijuana. Mr. Grant indicated that he did not known where. Mr. Grant did not indicate that he did not allow the purchase or use of narcotics on the Premises. Agent Hurlburt also purchased 6.5 grams of cannabis from Mike that evening. The money was given to Mike inside the Premises and Mike gave Agent Hurlburt the marijuana inside the Premises. December 15 1993: The Division served a Search Warrant Notice to Show Cause and Emergency Order of Suspension on Riffy's. Agent Deen arrested Kenny and confiscated a bag of marijuana from Kenny. The bag contained 2.4 grams of cannabis. A bottle of Jim Bean whiskey was found in a room on the premises used by bands. All of the uses sales and delivery of marijuana described in the foregoing findings of fact took place in a relatively open manner and little effort was taken to disguise or conceal any illegal activity. Riffy's Efforts to Prevent Violations of Law. Mr. Grant testified that he instructed employees to not to engage in drug activities. One employee substantiated this testimony but that employee was Kenny one of the individuals involved in illegal activities on and near the Premises. Mr. Grant's and Kenny's testimony concerning efforts to prevent illegal activities on the Premises is rejected. There was not other evidence of efforts by the owners of Riffy's to insure that illegal activities did not take place on the Premises. In light of the open use of what appeared to be and smelled like marijuana in the parking lot of the Premises Mr. Grant should have taken some steps to prevent illegal narcotics activities on the Premises described in this Recommended Order. This is especially true based upon Mr. Grant's admission during the hearing of this matter that he smelled what he believed to be marijuana smoke "on the way to the dumpster."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco enter a Final Order finding that Riffy's Inc. d/b/a Riffy's Pub is guilty of Counts 2 3 4 5 6 8 10 11 13 14 and 16 of case number 94-0606. It is further RECOMMENDED that Counts 1 7 12 15 and 17 of case number 94-606 be dismissed. It is further RECOMMENDED that Riffy's alcoholic beverage license number 19-00616 series 2-COP be revoked. It is further RECOMMENDED that Riffy's be assessed a $1000.00 civil penalty. DONE AND ENTERED this 14th day of June 1994 in Tallahassee Florida. LARRY J. SARTIN 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 June 1994. APPENDIX Case Numbers 94-0606 and 94-1348 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Division's Proposed Findings of Fact Accepted in 4. Accepted in 5-6 31 and hereby accepted. Hereby accepted. Accepted in 7 and 9. Accepted in 7. Accepted in 10. Accepted in 11. Accepted in 12. Accepted in 13. Accepted in 14-15. The events described in the first sentence took place on October 22 1993. Accepted in 16. Accepted in 17. Accepted in 18. Accepted in 19-21. Accepted in 23. Accepted in 8 and hereby accepted. Accepted in 22. Accepted in 24. Accepted in 25. Accepted in 26. Accepted in 27. Accepted in 27. Accepted in 28. Accepted in 30. Accepted in 31. Accepted in 32. Riffy's Proposed Findings of Fact Accepted in 4. Accepted in 3. Not supported by the evidence. Accepted in 24. Accepted in 11. Accepted in 24. The evidence did fail to prove that Mr. Grant had actual knowledge of these events. Accepted in 22. Accepted in 28. See 28. Accepted in 30. Accepted in 30. Not supported by the weight of the evidence. Statement of law. Not supported by the weight of the evidence. Statement of law. Accepted in 17. Accepted in 4. Statement of law. COPIES FURNISHED: Miguel Oxamendi Assistant General Counsel Department of Business and Professional Regulation 725 South Bronough Street Tallahassee Florida 32399-1007 Stephen C. Booth Esquire 7510 Ridge Road Port Richey Florida 34668 Sgt. Homer Scroggin Department of Business and Professional Regulation 1103 SW 1st Avenue Ocala Florida 32678-4218 Jack McRay DBPR Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee FL 32399-0792 John J. Harris Acting Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee FL 32399-0792
The Issue Whether respondent's alcoholic beverage license should be disciplined on charges that she, her agent or employee, purchased cigarettes for retail from other than a wholesaler, failed to maintain invoices for cigarette purchases on the premises for three years, and possessed on the premises lottery tickets or paraphernalia used in connection with a lottery.
Findings Of Fact Respondent holds alcoholic beverage license No. 23-3145, Series 2-APS, and operates a business known as Shirley's Grocery at 5500 Northwest 17th Avenue, Miami, Florida (Testimony of John Harris; P-4, P-6) Based on information received from a confidential informant, Beverage Officer Carol Houston conducted an inspection of respondent's licensed premises on October 2, 1981. Officer Houston, accompanied by two other beverage officers, identified herself to Willie Mae Robinson, an employee behind the cash register. Officer Houston then examined the beverage license displayed on the wall and began checking cigarette tax meter numbers on the cigarettes displayed for sale behind the counter. (Testimony of Houston) The officers questioned Ms. Robinson about a padlocked cabinet located in the southeast portion of the premises, the area where alcoholic beverages were stored. She disclaimed any knowledge of the packaged cigarettes which were visible through the locked cabinet doors. The officers opened the cabinet with a key from the cash register and found 837 packages of cigarettes and a shotgun. The cigarette packages were marked with tax meter numbers which DABT had previously assigned to Atlantic Tobacco Company, The Southland Corporation, Eli Witt Company, Winn Dixie Stores (which do not wholesale cigarettes) and Miami Tobacco Company. (Testimony of Houston; P-2) Ms. Robinson, who could produce no invoices for these cigarettes, called respondent Shirley Donovan to the premises. Ms. Donovan stated she had no invoices for the cigarettes, which she said belonged to her night manager, Willie Lovette. (She later executed a sworn statement to this effect.) Mr. Lovette was then called to the premises and signed a sworn statement that he bought the cigarettes, for resale, from two unidentified black males while working at the licensed premises on September 28, 1982. (Testimony of Houston; P-5, P-6) The cigarettes were partially visible through the locked cabinet doors, the cabinet was in full view in the alcoholic beverage storage area of the licensed premises, and the key in the cash register opened the cabinet. These facts support an inference that respondent either knew of the illicit cigarettes or failed to diligently supervise the licensed premises. Before leaving the licensed premises on October 2, 1981, Officer Houston served respondent with a written notice that DABT rules require that cigarette invoices be retained on the licensed premises. The packages of cigarettes found in the cabinet were then seized and placed in the DABT evidence vault. (Testimony of Houston; P-3, P-7) On October 15, 1981, Officer Houston and Beverage Officer Edward Pfitzenmaier returned to respondent's licensed premises to serve notice of the Division's intent to file administrative charges relating to the October 2, 1981 inspection. Willie Mae Robinson, again behind the cash register, summoned respondent who, when questioned, stated that she bought cigarettes only from Cantors, Miami Tobacco Company and, on one occasion, from Eagle Discount. Cantors and Miami Tobacco Company were cigarette wholesalers; Eagle Discount was not. Invoices on the premises substantiated cigarette purchases from Cantors on August 10, 17, 18, 19, 20, and October 2, 11, 14, 1981. (Testimony of Houston, Pfitzenmaier) Further inspection of the cigarettes on display behind the-cash register disclosed 476 cigarette packages which bore cigarette tax meter numbers previously assigned by DABT to the following businesses: 41597 - Atlantic Tobacco Company 43936 - Winn Dixie Stores, Inc. 40501 - Eckerd Tobacco Company 41247 - Two Brothers Tobacco Company 43025 - The Southland Corp. 40875 - Eagle Family Discount 41851 - Eagle Family Discount 46087 - The Southland Corp. Respondent could produce no invoices for these cigarettes, some of which bore the same meter numbers as the packages found on the premises in the locked cabinet on October 2, 1981. The cigarettes were seized by Officer Houston and placed in the DABT evidence vault. (Testimony of Houston, Pfitzenmaier; P-7) During the October 15, 1982, inspection and search for invoices on the licensed premises, Officer Pfitzenmaier found numerous slips of paper, booklets and calendars in a cigar box and loosely scattered behind the counter. The calendars were marked for different dates with numbers in series. The booklets, including "King Tut's Dream Book," contained various numerical listings based upon such topics as horoscopes, lucky days, lucky numbers, and racing results. Such materials are commonly used in connection with lotteries. The markings support an inference that these materials had been used or were being used in connection with a lottery. They were seized by Officer Pfitzenmaier and placed in the DABT evidence vault. (Testimony of Pfitzenmaier; P-8) On at least three previous occasions, DABT fined respondent for purchasing cigarettes from other than a wholesaler and for failing to maintain, on the premises, invoices for cigarette purchases. On the third occasion, DABT also suspended her license. (Testimony of Houston)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license no. 23-3145 Series 2-APS, be revoked. DONE AND RECOMMENDED this 11th day of February, 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 11th day of February, 1983.
The Issue Should the Petitioner impose discipline against Respondent, holder of an alcoholic beverage license, for violations of laws pertaining to that license?
Findings Of Fact At times relevant to the inquiry Respondent held alcoholic beverage license no. 47-00190, series 4COP, issued by Petitioner. This license allowed Respondent to sell alcoholic beverages at the licensed premises known as Kent's Northside Lounge and Restaurant, located at 1133 Thomasville Road, Tallahassee, Florida. Respondent was the sole holder of that license. Respondent continues to hold the license. Beginning January 1997, and ending April 25, 1997, Petitioner, together with other law enforcement agencies, conducted an investigation of the licensed premises to determine if violations of law involving illegal narcotics were occurring. While involved in this investigation, Petitioner also investigated alleged violations involving tobacco. On January 7, 1997, Gordon Chesney entered the licensed premises. He was acting in the capacity of a paid law enforcement undercover operative. He was not a sworn law enforcement officer. Once in the bar he made the acquaintance of a person identified as "Wild Bill." Wild Bill refers to Bill Ferris, Respondent's bartender. Chip Kirby, another bartender, was also in the licensed premises. When Chesney introduced himself to Ferris, Chesney wanted to know "where the action is" in town. In conversation Chesney asked Ferris "Does it ever snow down here?" This reference was a slang term for cocaine. Ferris responded that "it would snow in a few days." This comment referred to the availability of cocaine. Chesney told Ferris he would like to get some "snow." After their initial meeting, Chesney telephoned Ferris at the bar. Ferris told Chesney to come to the bar. Chesney returned to the bar at around 6:30 p.m. on January 9, 1997. Once in the bar Chesney made contact with Ferris. Ferris took Chesney over to a booth in the premises. At this time there were customers in the bar, approximately ten to fifteen people. The other bartender, Kirby, was also in the premises. Respondent was not in the premises. Ferris referred to "she is not here yet," meaning the person who was supposed to deliver cocaine to Ferris. Ferris then invited Chesney to the bathroom in the premises. Chesney showed Ferris money he had brought to purchase cocaine. Ferris indicated that there wasn't enough money. Chesney promised to bring more money later. Chesney went away from the premises to obtain more money and returned to the bar at around 8:30 p.m. When Chesney first arrived at the bar on January 9, 1997, Ferris had not been on duty as a bartender. When Chesney returned to the bar, Ferris was on duty. When Chesney returned, he told Ferris that he was ready. Ferris replied that "she" would be here any minute. A girl then came into the bar. Ferris talked to her. Ferris then came to a booth and invited Chesney to go outside with Ferris. While at the booth, Ferris asked Chesney if he had the rest of the money. They went outside. Chesney gave money to Ferris. The money given to Ferris was in addition to the money which Chesney had given Ferris in the bathroom. Ferris gave Chesney a small baggie containing what was taken to be cocaine. The exchange of additional money and the baggie was made right outside the door of the premises. Chesney turned over the item that he had purchased from Ferris to Officer Kevin Taylor of the Tallahassee Police Department. In turn Detective Louis Donaldson of that department took custody of the item. On January 15, 1997, Chesney returned to the bar. His purpose was to obtain additional cocaine. Once in the bar Chesney contacted Ferris. Ferris was working behind the bar at the time. Chesney told Ferris he wanted to "get a quarter." This refers to a quantity of cocaine. Ferris told Chesney that "she will be here any minute." Chesney waited about half an hour. Then a girl came in the back door and talked to Ferris. Then Ferris went back to an area of the bar which is a restaurant. In about five minutes Ferris came out with a Styrofoam soup cup. He said "here is your soup." Chesney said "okay." Chesney gave Ferris $300 and walked out of the bar. On this occasion Respondent was in the premises seated at a table behind Chesney. That location was about eight feet from Chesney's location. Other people were seated with the Respondent. On this occasion music was playing. Sometimes the music was loud. Sometimes the music was not loud. Chesney cannot recall whether the music was loud during conversations held with Ferris concerning the purchase of the cocaine. But the conversation between Chesney and Ferris was in a normal tone. Once outside of the premises, Chesney turned his purchase over to an officer. Again Detective Donaldson took custody of the item. Detective Donaldson prepared a property receipt for those items seized on January 9 and 15, 1997, that were purchased by Chesney. The items were temporarily held in custody by the Tallahassee Police Department. Those items were then forwarded to and tested by the Florida Department of Law Enforcement, who having analyzed the items, discovered the presence of cocaine. On January 22, 1997, Chesney reentered the licensed premises with Officer Alan Wayne Davis, Jr., who worked for the Petitioner in an undercover capacity. Chesney introduced Davis to Ferris. Ferris was working as a bartender at that time. Specifically Ferris was serving beer and mixed drinks, and taking money. Because Davis was acting in an undercover capacity, he did not tell Ferris that he, Davis, was a law enforcement officer. Davis never revealed his position as a law enforcement officer to any persons who were the subject of the investigation. In pursuit of his undercover role, Davis told Ferris that he was a member of a motorcycle club. On this date a conversation held in a normal tone involved the subject of cocaine. This refers to a conversation between Davis and Ferris. Davis returned to the bar alone on January 23, 1997. He contacted Ferris who was working as a bartender. They discussed a prior cocaine deal between Ferris and Chesney in a normal tone. On January 23, 1997, Davis met Samuel H. Lewis at the bar. Davis was introduced by Ferris. Lewis was taking bets on the upcoming Superbowl football game. The bets were premised upon placing projected scores on a paper square for a cost of one dollar. The winner was to be determined by the individual who placed the bet and guessed the total score. The game was a game of chance, not skill. Davis gave Lewis five dollars to participate in the betting pool. An envelope of bets containing fifty-seven dollars was available when Lewis began to collect bets. Lewis received about twenty additional signatures (twenty dollars) in the bar representing individual bets. The overall pool had one hundred squares. Respondent was not at the bar on January 23, 1997, when the football pool was held. On January 23, 1997, Davis met Robert Strauss, Respondent's son. Robert Strauss was an employee at the bar. In conversation Davis was asked what kind of business he was in. Davis responded that he was in the business of making money. Before Davis met Robert Strauss, Ferris had asked Davis if Davis sold cigarettes, in that, as Ferris described the matter, Robert Strauss was always looking for a good price on cigarettes. Davis had answered Ferris in the affirmative. This led to the introduction to Robert Strauss. Conversations about cigarettes were open, in normal tones. In discussion Robert Strauss asked Davis if the cigarettes that Davis had for sale had stamps on them. Davis replied in the affirmative. On the other hand, Davis commented to Robert Strauss that the cigarettes were "so hot that you could feel it." Davis intended by his remarks to indicate that the cigarettes that he had were stolen. That intent would create the most likely inference to be gained from Davis' remarks. Davis did not indicate that he was a licensed wholesale cigarette distributor on that occasion or any other occasion. Through conversation Davis and Robert Strauss arrived at a price of eight dollars a carton for cigarettes, a price below the expected value of that merchandise. Robert Strauss asked Davis to bring him a case of cigarettes next Wednesday. Davis agreed to that request. When Robert Strauss made the overture to Davis concerning the purchase of cigarettes, Davis was not in control of cigarettes. To further the investigation, Petitioner purchased cigarettes from a wholesaler, SuperValue Warehouse. Petitioner caused stamps to be attached to those cigarettes. Those stamps were out of circulation and not involved in normal commerce. By this attachment, the impression that was created was that the cigarettes were properly stamped. The cigarettes were then turned over to Davis to be used in furtherance of the investigation. In a later conversation between Ferris and Davis on January 23, 1997, the subject of cocaine was discussed. This conversation took place in the bar. Davis told Ferris that he might want cocaine at a later time. Ferris invited Kirby into the conversation. Kirby tried to tell Davis what a good deal Kirby and Ferris could get Davis on some "coke." This refers to cocaine. At that point in time, Kirby was working at the bar. The price discussed was $750 for a half ounce of cocaine. Kirby indicated that the cocaine would be available Friday and that Davis could come back and purchase the cocaine from Kirby and Ferris. The conversation about cocaine was openly stated. Davis returned to the bar on January 29, 1997. Davis made contact with Ferris who was tending bar, and had a conversation about Davis' failure to purchase cocaine, causing Ferris and Kirby to be "stuck with the coke," trying to sell it to someone else. This conversation was held in a normal tone of voice. Robert Strauss was not at the bar on that occasion. Nonetheless, Ferris told Davis that, Robert, referring to Robert Strauss, wanted to purchase cigarettes. Ferris indicated he would contact Robert Strauss and return to purchase cigarettes from Davis. Ferris then made a telephone call. Ferris then purchased cigarettes from Davis for $100 in return for twelve cartons of Winstons. Those cigarettes sold by Davis on this occasion, and on other occasions, were the cigarettes that Petitioner had placed the out-of-date stamps on, after obtaining the cigarettes from the wholesaler SuperValue Warehouse. Davis returned to the licensed premises on February 5, 1997. While at the bar, Robert Strauss walked out of another part of the bar and yelled to Davis, "Hey, cigarette man, I will be right out." Robert Strauss was approximately twenty feet away from Davis when he made those remarks. Respondent was sitting in one of the booths of the bar at the time. On this visit to the bar, Davis engaged in a conversation with Ferris. Ferris was not on duty at that time. Then Davis spoke with Robert Strauss. Robert Strauss asked Davis what type of cigarettes Davis had brought. Davis replied that he had brought thirty cartons of Marlboro Lights and a Phillieblunt box full of cigars. Robert Strauss asked if the price of the cigarettes was still eight dollars a carton. Davis said yes. The cigarettes were delivered from Davis to Robert Strauss across the counter after Davis obtained the cigarettes from his vehicle. At that time patrons were at the bar. Robert Strauss paid Davis $240 for the cigarettes from the cash register at the bar, by openly handing Davis the money. Robert Strauss then took the cigarettes to a back portion of the premises. Davis purchased one pack of Marlboro Lights back from Robert Strauss for a price of three dollars out of the cigarettes that had just been sold from Davis to Robert Strauss. On this date, Davis also told Robert Strauss that the cigarettes "were so hot that they wouldn't even have to be lit," in conversation concerning the purchase of additional cigarettes beyond that point in time. At the bar, Davis then engaged in a conversation with Ferris about cocaine in a normal tone. Davis returned to the bar on February 12, 1997. At that time Ferris was working behind the bar, Robert Strauss was also on the premises in the kitchen area. Davis told Robert Strauss that he had thirty cartons of Winstons. Robert Strauss told Davis he would give Davis five dollars per carton for all thirty. They agreed. Davis sold Robert Strauss thirty cartons for five dollars each. Davis brought the cigarettes in from his car in a large box and placed them on the edge of the bar in making the exchange. Twelve to fifteen patrons were in the licensed premises. Robert Strauss took the money to pay for the cigarettes from a bank bag near the cash register. The transaction was openly conducted. On that same date Davis discussed with Ferris the purchase of cocaine while Ferris was working behind the bar. The amount discussed was an ounce. To facilitate the purchase, Ferris gave Davis his work and home telephone numbers; these included the number for the bar. Davis returned to the bar on February 19, 1997. Davis contacted Ferris who was working as a bartender. Patrons were in the bar at that time. Ferris asked Davis if Davis had brought the cigarettes for Robert Strauss. Kirby came over to Davis and asked if Davis was still looking to get an ounce, referring to the purchase of cocaine. Davis said yes. Davis gave Kirby $1,400 in cash in furtherance of a purchase. Kirby counted the money while at the bar without attempting to disguise his activities. Kirby put the money in his pocket and went to the business phone in the premises and made a call. Kirby then returned and told Davis he couldn't contact his main supplier, but that he had another source he could get it from who was in the bar. This discussion was held in a regular tone of voice. Kirby left the bar and then returned. Davis was instructed to follow Kirby and Ferris to a back room. Davis followed them to a storage room. Kirby then pulled a bag out of his shirt represented to be cocaine. Davis weighed the substance on scales. While this transaction took place, the parties were concealed by a door. The substance weighed approximately an ounce. When Davis left the licensed premises, he turned the substance over to a case agent for the Drug Enforcement Administration (DEA). On the same day, Davis sold Robert Strauss thirty cartons of cigarettes delivered to Ferris after Robert Strauss handed Ferris $100 to give to Davis. Davis delivered the cigarettes in a box from the trunk of his vehicle and placed them on the top of the bar during the exchange. Robert Strauss had obtained the money from a bank bag. On February 25, 1997, Ferris paged Davis. Davis called Ferris and Ferris told Davis he would give Davis an ounce of cocaine for $1,320. Davis said he wanted three ounces. An arrangement was made to meet on February 27, 1997, at the bar to carry out the transaction. On February 27, 1997, Davis returned to the bar in the company of a law enforcement officer, Agent Scirpan of the DEA. Davis met with Ferris after walking in the bar. Ferris told Davis to follow him outside. Ferris questioned Davis concerning the possibility that Davis was a cop or affiliated with law enforcement. Davis did not acknowledge his status as a law enforcement officer. They then went to Ferris' truck to count the money that would be used in purchasing cocaine. Respondent was seated at a table in the premises when Davis and Ferris left the premises to go to Ferris' truck. The truck was located by the side of the bar. Davis gave Ferris $4,000. They then went inside the bar. Ferris made a telephone call from the business phone in the premises. Ferris then exited the bar. While in the bar, Davis observed a girl sitting at the bar rolling what appeared to be a cannabis cigarette, known by its appearance to Davis to be cannabis, based upon his experience as a law enforcement officer. Robert Strauss was there at that time two to three feet away. Robert Strauss made no attempt to confront the patron concerning this practice. Davis ordered a pack of Marlboro Lights from the bartender and paid for them. To get the cigarettes, Respondent had to produce the keys to the storage room to obtain the cigarettes purchased. The cigarettes that Davis purchased bore the out-of-date stamp involved with the cigarettes that Davis had sold to Robert Strauss. On that same date an unidentified white male came in offering to sell cartons of cigarettes. The unidentified male was trying to sell cigarettes for ten dollars a carton. At that time Respondent had left the bar. Later Ferris returned to the bar and asked Davis to go outside with him. They got in Davis' car and rode around the block. Ferris gave Davis approximately three ounces of a substance as part of the arrangement to purchase cocaine. This item was turned over to a DEA agent. On March 6, 1997, Davis called Kirby at the bar and ordered an ounce of cocaine. The tone of the conversation was normal. On March 7, 1997, Davis went to the bar and contacted Kirby. Kirby was working. Kirby said the deal was off because of a death in the family. Kirby told Davis that they could talk later about doing one or two "keys" of coke. A "key" refers to a kilo of cocaine. This conversation was held in a normal tone of voice across the bar. On March 17, 1997, Davis called Ferris at the business phone number Ferris had given Davis. The call was about purchasing more cocaine. The phone number used was the number for the licensed premises. An arrangement was made to purchase cocaine of an undisclosed amount on the following Wednesday. On the following Wednesday, which was March 19, 1997, Davis returned to the bar and met with Ferris. Ferris was concerned about the rumor that there was an undercover officer working inside the bar. Davis did not acknowledge his undercover capacity in this conversation. It was decided to wait awhile before the parties did any more business. However, there was a conversation between Davis and Kirby in which Kirby said they could go to Miami and pick up cocaine. This conversation was in a normal tone of voice. As Davis was starting to leave, Robert Strauss approached Davis and asked Davis to bring back some cigarettes when Davis returned. On April 7, 1997, Davis called Ferris and discussed the purchase of one ounce of cocaine on the following Wednesday. This call was made to the telephone within the licensed premises. An agreement was made to purchase an ounce of cocaine, the cost of which was not determined. On April 16, 1997, Davis called the licensed premises and spoke with Kirby about the purchase of an ounce of cocaine. Then Davis went to the licensed premises and contacted Kirby who was working behind the bar. Kirby told Davis that the purchase of cocaine would cost $1,400 an ounce. This conversation was conducted in an open manner. Then Robert Strauss walked out from the back of the bar and asked Davis if Davis "had any hot cigarettes to sell." Davis said "they were all in the trunk." Robert Strauss followed Davis out to Davis' vehicle. In the trunk there were ten cartons of Camels and ten cartons of Marlboro Lights. Robert Strauss carried the cigarettes back into the bar in a box. Robert Strauss put the cigarettes up, went over to the cash register and obtained $100 which was given to Davis. The reference to putting the cigarettes up means that Robert Strauss took them to the storage room. Robert Strauss told Davis that he would buy more cigarettes if Davis would bring them to Robert Strauss. The transaction concerning the purchase of the cigarettes was made with no attempt to conceal the activity. Then Ferris came in and took over Kirby's assignment at the bar. Kirby then sat down next to Davis at the bar. They discussed the purchase of a key of coke, meaning a kilo of cocaine. They discussed that if that amount was broken down, the cost for an ounce would be $700. The purchase was to be made in Miami. This conversation was conducted openly. Davis and Kirby went outside and Davis gave Kirby $1,400 to purchase a smaller amount of cocaine. Kirby returned to the bar. Davis and Kirby then went to Davis' vehicle. Davis took the substance that had been offered as cocaine. This transaction took place after they drove away from the bar. Again, that substance was turned over to an agent with the DEA. On April 22, 1997, Davis called the bar and spoke to Kirby. They discussed the purchase of another ounce of cocaine for the next day. On April 23, 1997, Davis returned to the bar after arranging with Kirby, through a telephone call, to come to the bar. Kirby was tending the bar. Kirby and Davis discussed a cocaine deal. Kirby told Davis that basically all suppliers were sold out of cocaine. Kirby told Davis that some people were offering to sell for as much as $1,600 an ounce. This conversation took place at a little table next to the bar. Patrons were in the premises at that time. The conversation was held in a normal tone. Eventually Kirby told Davis that he had found someone that lives at the Gulf who could get an ounce of cocaine for $1,450. That price was agreed upon. After a person drove up, Kirby commented, "There's my man." At that moment Davis gave Kirby the money. Kirby counted the money. Kirby left the bar and returned. Kirby told Davis to go with Kirby to Kirby's van. They got in the van and drove around the block. Kirby gave Davis an ounce of a substance which was tendered as cocaine. That substance was turned over to an agent of the DEA. Davis returned to the bar on April 24, 1997. He met with Kirby who was tending bar. They discussed the purchase of cocaine. Kirby said he had an ounce of cocaine to sell and asked Davis if he wanted to purchase the cocaine. Davis agreed to purchase the cocaine for $1,400. Davis gave $1,400 to Kirby across the counter. Kirby told Davis to follow him to a bathroom. In the bathroom Kirby handed a substance in aluminum foil to Davis, represented to be cocaine. The substance was turned over to an agent of the DEA. On the same date, Kirby and Davis discussed making a trip to Miami to purchase cocaine, and what it would cost Davis if Kirby delivered the cocaine from Miami, as opposed to Davis and Kirby going to Miami to obtain the cocaine. A price of $32,000 for a kilo of cocaine was discussed. This conversation was held in an open manner. On April 25, 1997, the Tallahassee Police Department served a search warrant on the licensed premises looking for illegal drugs. Petitioner's agency was also involved in the search. During the search, underneath the bar on the right-hand side, an item was discovered, which through a field test revealed the presence of cocaine. The item was wrapped in tin foil. The tin foil was readily visible when standing behind the bar. In addition cigarettes were seized. The item that tested as cocaine in the field test was turned over to the resident agent in charge for the DEA. At the time the search was made on April 25, 1997, Petitioner was investigating the purchase of cigarettes from a non-wholesaler, as well as its interest in the sale of illegal narcotics. On that date, the Petitioner seized the cigarettes that Davis had sold to Respondent's employees. The cigarettes Davis sold had never had taxes remitted to the state of Florida based upon a wholesale transaction. Respondent identified that Kirby and Ferris were part- time bartenders who worked at night. Ferris also worked a Saturday day shift. Ordinarily a shift change to the night shift occurred at 6:00 p.m. Ferris had been a customer of the bar before being hired. Before being hired, Kirby was referred to Respondent by Respondent's friends. Respondent identified that Robert Strauss was more or less the supervisor in charge at the premises when the Respondent was not there. Robert Strauss cooked at the bar a couple of days a week. Robert Strauss was involved with purchasing supplies for the bar. Respondent indicated that Robert Strauss' duties in purchasing during the time in question involved the purchase of cigarettes. Beyond the time of the investigation described, within the last six months prior to the hearing, two employees had been dismissed for suspected drug use. This did not include Messrs. Ferris and Kirby. The dismissal of the other employees was made by Respondent. Respondent's day at the bar runs usually from 7:30 or 8:00 a.m. to 6:00 p.m. Prior to the events described in the facts, Respondent did not have a policy for his establishment concerning activity involving narcotics. Subsequent to the investigation, there is a written policy prohibiting employee activities involving narcotics. Respondent has no written policies advising his employees what the employees should do if they observe persons engaging in illegal narcotic activities. Respondent says that he explains to his employees verbally that if anyone discusses narcotics at the bar "they are out." Respondent has video cameras to monitor activities in the bar. The manner in which Robert Strauss solicited Davis for the purchase of cigarettes, Davis sold the cigarettes, and Respondent's employees sold the cigarettes obtained from the SuperValue Warehouse, creates the inference of impropriety by Robert Strauss and other employees affiliated with Respondent's licensed premises. The inference of impropriety is to the exclusion of any other inference to be gained from the conduct. The inference is that the cigarettes were not part of ordinary commerce and had questionable origins. Under the circumstances, it would be appropriate for an ordinary law-abiding person to suspect that the cigarettes which Davis presented to Robert Strauss and others in the premises, as solicited by Robert Strauss, were stolen. Davis billed the cigarettes as outside the bounds of ordinary commerce when describing the cigarettes as "hot." Davis also identified that the cigarettes were being purchased at a price that was more than a good bargain. The price helped in creating the appearance that the cigarettes were not part of legitimate commerce. As stated, the substances purchased by Chesney on January 9 and 15, 1997, were cocaine. The substance found during the search of the premises on April 25, 1997, was cocaine.1
Recommendation Based upon the findings of fact and conclusions of law, it is recommended that a final order be entered finding Respondent in violation of counts 1, 2, and 9 through 28, and finding that Respondent did not violate counts 2 through 8, and that imposes a penalty of revocation of license number 47-00190, series 4COP. DONE AND ENTERED this 17th day of June, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1998.
Findings Of Fact Based on the stipulations of the parties, the exhibits received in evidence, and the testimony of the witnesses at the hearing, I make the following findings of fact. Sweet's Lounge, Inc., held alcoholic beverage license number 16-350, Series 2-COP, for the location of Sweet's Lounge, 706-710 Northwest First Street, Dania, Florida, at all times relevant to the charges in this case. On April 24, 1985, Beverage Investigator Frank Oliva drove his automobile to the front of the premises of Sweet's Lounge. He was approached by a male who asked what he wanted, and Oliva responded that he wanted "Boy," a street name for heroin. The male answered that he did not have any. Another male approached Oliva, who again indicated that he wanted some "Boy". Oliva observed the male enter the premises of Sweet's Lounge. Beverage Investigator Alphonso Junious was inside the licensed premises of Sweet's Lounge and observed the entire transaction with Oliva. He observed the male enter the premises of Sweet's Lounge and approach a female patron known as Ramona, who handed the male a tinfoil package. The male returned to Investigator Oliva and exchanged the tinfoil package for $20.00. The male then reentered Sweet's Lounge and gave the $20.00 to Ramona. The substance alleged to be heroin was laboratory analyzed to contain no controlled substances. On April 25, 1985, Beverage Investigator Frank Oliva returned to the front of the premises of Sweet's Lounge. He discussed the purchase of some "Boy" from an individual named William Rainey. Rainey went inside the premises of Sweet's Lounge and returned with a tinfoil package which he delivered to Oliva in exchange for $20.00. The substance alleged to be heroin was laboratory analyzed to contain no controlled substances. On April 25, 1985, Investigator Junious returned to the premises of Sweet's Lounge. The on-duty barmaid, Beatrice, left the premises for a short time and asked a female, later identified as the barmaid Linda, who was sitting at the end of the bar counter smoking a marijuana cigarette, to watch the bar until Beatrice returned. Beatrice said nothing to Linda about the marijuana cigarette. Linda walked behind the bar and continued smoking the marijuana cigarette while performing bartending duties. When Beatrice re-entered the premises, Ramona was standing in the doorway handing a tinfoil package to a male in the view of Beatrice. Junious entered into conversation with Ramona and, during the conversation, Ramona delivered a small tinfoil package to an unknown male patron. Investigator Reylius Thompson was also inside the premises of Sweet's Lounge on April 25, 1985. He observed several patrons smoking marijuana cigarettes, which he was able to identify through their appearance, smell, and the manner of smoking. On May 1, 1985, Investigators Junious and Thompson returned to the licensed premises of Sweet's Lounge. They observed the bartender Beatrice seated at the bar counter with two male patrons who were smoking a marijuana cigarette. After the bartender Linda came on duty, the officers observed her remove a marijuana cigarette from her purse and begin to smoke it behind the bar counter. Junious asked Linda for change for a $20.00 bill so he could buy cocaine. Linda asked what Junious wanted, and he told her a $10.00 piece of cocaine. Linda removed a tinfoil package of cocaine from her purse behind the counter and sold the cocaine to Junious for $10.00. While Investigator Thompson was seated at the bar on May 1, 1985, he also asked Linda for some cocaine. Linda again removed a tinfoil package of cocaine from her purse and delivered it to Thompson in exchange for $10.00. On May 3, 1985, Investigators Junious and Thompson returned to the licensed premises of Sweet's Lounge. While Beatrice was bartender, Junious observed several patrons smoking marijuana cigarettes. After Linda came on duty, Junious asked to purchase $10.00 piece of cocaine from her. Linda requested Beatrice to hand her her purse, from which she removed a tinfoil package of cocaine. Junious observed a plastic bag containing numerous tinfoil packages inside of Linda's purse. Linda sold the package of cocaine to Junious for $10.00 While Investigator Thompson was sitting at the bar on May 3, 1985, he asked Linda for some cocaine. Linda asked Beatrice to pass her purse to her from behind the bar. Beatrice handed the purse to Linda and Linda took out a tinfoil package of cocaine which she sold to Thompson for $10.00 On May 8, 1985, Investigators Junious and Thompson returned to Sweet's Lounge. While the investigators were seated at the bar counter, they observed three male patrons also seated at the bar counter smoking a marijuana cigarette in the presence of Beatrice, the bartender. After Linda came on duty, Junious asked her for a $10.00 piece of cocaine. Linda removed her purse from behind the bar, removed a tinfoil package of cocaine from her purse, and sold the cocaine to Junious for $10.00. Later that evening, Thompson asked bartender Linda for a $10.00 piece of cocaine. She again removed a tinfoil packet containing cocaine from her purse and sold the cocaine to Thompson. ll. On May 10, 1985, Investigators Junious, Thompson and McKeithen went to Sweet's Lounge. Junious asked the bartender Linda for $10.00 worth of cocaine, and she replied that she only had rocks. Junious agreed to purchase the rocks and received a tinfoil package of cocaine from Linda, which she had removed from her purse behind the bar. Later that same evening, Investigator Thompson also asked Linda for $10.00 worth of cocaine. She removed from her purse a tinfoil package containing cocaine which she sold to Thompson for $10.00. That same evening Investigator Thompson observed a male disc jockey smoking marijuana in the presence of patrons and passing the marijuana cigarette to some of the patrons. On May 14, 1985, Investigators Thompson and McKeithen returned to Sweet's Lounge. Thompson observed four patrons seated at a table cutting a white powder and snorting it from the top of the table. He also observed Ramona and a male patron, while seated at the bar, snort a white powder through an empty cigarette paper tube in view of the bartender Beatrice. On May 15, 1985, Investigators Junious and Thompson returned to Sweet's Lounge. Junious asked the bartender Linda if she had any cocaine, and she responded that she did but Junious would have to wait until she served a customer. After serving a customer, Linda sold Junious a small tinfoil package containing cocaine for 510.00. Junious also observed several patrons smoking marijuana cigarettes, sniffing white powder, and removing tobacco from regular cigarettes, inserting white powder into the cigarettes, and smoking same. On that same date, Investigator Thompson also asked Linda for cocaine. She replied that she had rock or powder cocaine and Thompson ordered rock. Linda walked into the package store portion of the lounge and returned shortly to Thompson, handing him a tinfoil package containing a small rock of cocaine in exchange for $10.00. On that same date Thompson observed Ramona using an empty cigarette paper tube to snort a white powder. On May 22, 1985, Investigators Junious and Thompson entered the licensed premises of Sweet's Lounge. The officers observed patrons seated at the bar counter smoking a marijuana cigarette in the presence of bartender Beatrice. The officers also observed Ramona seated at a table with several male patrons, all of whom were snorting a white powder from the table top and smoking a white powder in cigarettes. On May 29, 1985, Investigator Thompson returned to Sweet's Lounge. He observed Linda smoking a marijuana cigarette behind the bar counter and observed Ramona sitting on the west side of the premises with a quantity of white powder on the table. Thompson approached Ramona, sat down next to her, and began to talk to her about cocaine. While Thompson was seated with Ramona another female patron smoked a marijuana cigarette. Later that same evening, Thompson asked bartender Linda for cocaine and she responded that she had rock or powder. He ordered powder and Linda removed a tinfoil package of cocaine from her purse, which she sold to Thompson for $10.00. On the majority of the occasions described above when the investigators were inside the premises of Sweet's Lounge, there was a pervasive odor of marijuana smoke throughout the entire premises. The white powder which was being sniffed by patrons on the licensed premises at the various times described above was cocaine. In brief summary, the following relevant events took place at the licensed premises during the period of the investigation: 4/24/85: A patron participated in sale of a counterfeit controlled substance. 4/25/85: A patron participated in sale of a counterfeit controlled substance, an employee smoked a marijuana cigarette while on duty, and a patron delivered two small tinfoil packages to other patrons, and several patrons smoked marijuana cigarettes. 5/01/85: Two patrons smoked a marijuana cigarette, an employee smoked a marijuana cigarette while on duty, and an employee made two sales of cocaine. 5/03/85: Several patrons smoked marijuana cigarettes, and an employee made two sales of cocaine. 5/08/85: Three patrons smoked marijuana cigarettes in immediate presence of an employee, and an employee made two sales of cocaine. 5/10/85: A disc jockey smoked marijuana and shared it with patrons, and an employee made two sales of cocaine. 5/14/85: Six patrons sniffed cocaine; two did so in immediate presence of an employee. 5/15/85: Several patrons smoked marijuana and sniffed cocaine, and an employee made two sales of cocaine. 5/22/85: Several patrons smoked marijuana cigarettes in the immediate presence of an employee and several patrons sniffed cocaine. 5/24/85: A patron had cocaine in open view on a table, a patron smoked a marijuana cigarette, an employee on duty smoked a marijuana cigarette, and an employee made one sale of cocaine. Mr. Ebbie Sweet was never on the licensed premises on any of the occasions described above when the investigators were on the licensed premises. At all times material to this case, Mr. Andrew Johnson has been the manager of Sweet's Lounge. The owner, Mr. Ebbie Sweet, has given the manager various instructions about the operation of the premises. The instructions include: (a) keep the premises clean, (b) keep drugs out of the premises, (c) tell all employees to do the same, (d) put up signs about what can and cannot be done on the premises [including a sign reading "No Drugs Allowed"], (e) post the DABT flyer, and (f) put a "no loitering" sign outside the premises. The "no loitering" sign has not worked very well. When Mr. Andrew Johnson is on the premises he spends most of his time in the package store portion of the premises and very little of his time in the bar portion. On one occasion prior to the events described above, the Dania Police Department told Mr. Andrew Johnson there was a drug problem in Sweet's Lounge. He told them to come in anytime they wanted to and to arrest anyone they wanted to. Mr. Johnson did not change any procedures at Sweet's Lounge after the Dania Police Department told him about drug problems. Mr. Andrew Johnson knows Ramona. He has never seen her buy or use drugs, but he has heard that she is suspected of being a drug user. Ramona was a frequent visitor at Sweet's Lounge. Mr. Ebbie Sweet is the president of and the principal functionary of Sweet's Lounge, Inc. A sister and a nephew of Mr. Sweet also have some nominal connection to the corporation, but neither of them is active in running the licensed business. Mr. Ebbie Sweet enjoys an excellent reputation in his community. He is active in community affairs and has engaged in various charitable activities for the betterment of his community. It has always been his desire to run a reputable business and if he had known what was going on inside the lounge he would have fired those involved and would have closed the place up himself. In sum: Mr. Ebbie Sweet appears to be a good citizen who was trying to do the right thing. Unfortunately, for both him and the community, he wasn't trying quite hard enough. Some time ago Mr. Ebbie Sweet's wife passed away. As a result of that misfortune Mr. Sweet slowed down a lot and became less active in many things, including the amount of time and energy he devoted to the licensed business. He had at one time visited the licensed premises on a regular basis, but during the past ten months he only made a couple of trips a month to the licensed premises, and those were primarily to check on the inventory. During the past ten months he has hardly ever visited the licensed premises after dark. Mr. Sweet was relying on Mr. Andrew Johnson to manage things for him at the licensed premises even though he knew that Mr. Johnson was not the most reliable of managers. As Mr. Sweet put it, Mr. Johnson "has a few faults." Some years ago Mr. Sweet had an alcoholic beverage quota license which permitted him to sell all types of alcoholic beverages at Sweet's Lounge. When he had that license he had written instructions for his employees, he had doormen, and he had security guards. Since he sold the quota license and obtained his present license (which is limited to beer and wine sales), he has not had written instructions for his employees, he has not had doormen, and he has not had security guards. Mr. Sweet does not perform polygraph examinations or background checks on his employees. He has thought about hiring undercover people to patrol the premises, but has never done anything about it. The area of town in which Sweet's Lounge is located is one in which controlled substances are readily obtainable. Sweet's Lounge has had a recurring problem with undesirable people loitering in front of the lounge, people Mr. Sweet described as "hoodlums." All of the employees who worked in the bar portion of the licensed premises knew that marijuana and cocaine were being used by patrons inside the licensed premises on a regular, frequent, and flagrant basis. None of the employees took any action to prevent, discourage, or terminate the use of controlled substances by patrons. The foregoing findings of fact include the majority of the findings of fact proposed by the Petitioner. They do not, however, include any proposed findings based solely on the testimony of Investigator McKeithen. Some of the proposed findings based on McKeithen's testimony are irrelevant to the disposition of this case. Other proposed findings based solely on McKeithen's testimony are rejected because much of her testimony was neither persuasive nor convincing. While I have no doubts at all about her candor, honesty, or integrity, I have certain doubts about her attention to detail and her ability to recall and describe with accuracy events that took place in her presence. In making the finding that the employees who worked in the bar portion of the licensed premises were aware of the extensive use of drugs by patrons, I have not overlooked the testimony of the employees denying such knowledge. I find the denials to be unworthy of belief in light of all the other evidence in the record.
Recommendation For all of the foregoing reasons it is recommended that the Director of the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking alcoholic beverage license number 16-350, series 2-COP issued to Sweet's Lounge, Inc., for the premises located at 706-710 Northwest First Street, Dania, Florida. DONE AND ORDERED this 16th day of August, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1985. COPIES FURNISHED: Louisa Hargrett, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Chesley V. Morton, Esquire 604 Southeast Sixth Avenue Ft. Lauderdale, Florida 33301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr. Secretary The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact At all times relevant hereto, respondent, Willie Coachman, was a licensed beer vendor having been issued license number 39-02165 by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent uses his license at a business known as Willie's Fina Station located at 1312 East Columbus Drive, Tampa, Florida. The license is a Series 1-APS which authorizes Coachman to sell beer by package only for consumption off premises. On August 17, 1988 a Division investigator, Keith B. Hamilton, conducted an investigation of Coachman's licensed premises to determine if respondent was selling beer. He did so since Coachman's license was then under a suspension. After finding the beer coolers sealed with tape, Hamilton left the premises and stood outside the front door. He then observed a black male enter the premises carrying two boxes filled with cartons of cigarettes. The black male gave them to the store clerk, and Hamilton observed the clerk pay the male $80 from the cash register for the cigarettes. The cigarettes were then placed on the floor near Coachman's office. The male was not driving a vendor's truck nor was he dressed in a vendor's uniform. Hamilton telephoned another Division investigator, William P. Fisher, who came to the premises some ninety minutes later. The two entered Coachman's store, identified themselves to a clerk and inspected the stock room. According to Hamilton, Coachman is authorized to buy cigarettes from two area cigarette wholesale distributors, Costco Wholesale Corporation (Costco) and Eli Witt Corporation (Eli Witt). Each wholesaler has a distinctive stamp on its cigarette packages so that an investigator can easily determine from which wholesaler a vendor obtained cigarettes. Upon examining the cigarettes in Coachman's stock room, including the two boxes just sold to the cashier, Hamilton and Fisher noted that approximately 3,137 packs did not have a Costco or Eli Witt stamp. After the clerk could not produce invoices to verify that the cigarettes were purchased from a licensed wholesale dealer, the 3,137 packs were seized and taken to an evidence vault. At that time, the clerk acknowledged that Coachman had authorized her to make cigarette purchases from patrons. Coachman arrived at the premises as the investigators were leaving. He objected to the seizure saying that some of the cigarettes being taken were "good." Coachman was told the cigarettes would be returned if he could produce invoices establishing that they were validly purchased. During the course of the inspection on August 17, investigator Fisher observed nine bottles of Chivas Regal Scotch on a desk in Coachman's office. The bottles were unopened. According to Hamilton, it is unlawful for a beer vendor to have such alcoholic beverages on the premises even for personal consumption. Thus, even though Coachman maintained, without contradiction, that the scotch was for his own use, it was improper for him to store the same on his premises. After the cigarettes were placed in the evidence vault, Coachman produced certain invoices for the Division and also had several wholesalers telephone the Division to confirm various sales to Coachman. This resulted in 540 packs being returned to Coachman. Some 2,502 packs still remain in the Division's custody. At hearing, Coachman indicated that he normally buys some $30,000 to $40,000 of cigarettes monthly from various wholesalers. Also, he offered into evidence various receipts for purchases made in July and August 1988 and documentation verifying that a large quantity of cigarettes was obtained through transfers (exchanges) of cigarettes with other vendors. This latter situation occurs whenever one vendor has a slow-moving brand and exchanges them for a different brand with another vendor. However, each transfer must be documented with paperwork. The Division did not inventory the seized cigarettes by brand or dealer. Its evidence vault receipt, which has been received in evidence as petitioner's exhibit 3, reflected only that 2502 packs of cigarettes were taken. However, by credible testimony it was established that none of the confiscated cigarettes had indicia to show that they were purchased from Costco or Eli Witt. This was not contradicted. On the evening of August 31, 1988 investigator Turner and two informants carried fifteen cases of beer to another licensed premises operated by Coachman. The beer was transported in an unmarked, private vehicle. They offered to sell the beer to Coachman for $4.00 per case but then agreed to sell it for $3.00 per case, which is substantially below the fair and wholesale market value. The sale took place at the house of Coachman's children but Turner was paid with monies from respondent's cash register. Prior to the sale, Division personnel placed special markings on the bottom of the cans for identification purposes so that they could be later identified. On September 6, 1988 investigator Freese went inside respondent's premises and purchased a six pack of Busch beer for $2.69. The package was one of those previously sold to Coachman on August 31. Coachman denied reselling the Busch beer and contended it was purchased for personal consumption and use by his children. However, this testimony is not accepted as being credible. Also, he contended that all cigarettes were legally purchased from wholesalers or by exchange with other dealers and that he had appropriate documentation on hand at all times. However, such documentation was not on hand on the night the cigarettes were taken, and Coachman did not show that any of the cigarettes referred to on the documents supplied at hearing were the same that were seized by the investigators on August 17. Thus, the documentation was not sufficient. Coachman's license has been subject to disciplinary action on two other occasions. It was first suspended for thirty days effective January 6, 1987 for Coachman dealing in stolen property and purchasing cigarettes from other than a wholesale dealer. It was suspended a second time for a twenty day period effective August 9, 1988 for respondent (a) purchasing cigarettes from other than a wholesale dealer, (b) failing to maintain invoices of cigarette purchases on the premises, (c) possessing beverages not permitted to be sold under his license, (d) gambling and possession of gambling paraphernalia, and (e) conducting a prohibited lottery. Under petitioner's policy, as explicated at hearing, a license is revoked after repeat violations occur.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the notice to show cause, as amended, and that his APS license number 39-02165 be REVOKED. DONE and ENTERED this 23rd day of March, 1989, in Tallahassee, Florida. DONALD R. ALEXANDER 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 23rd day of March, 1989.
The Issue The issue for consideration in this hearing was whether the Department of Environmental Regulation's Amended Rule 17-105, F.A.C, Smoking Policy, was properly implemented and is a proper exercise of delegated legislative authority.
Findings Of Fact At all times pertinent to the issues herein, the Petitioners were employees of the Department. Petitioner Huck was employed in the Tallahassee headquarters and the other Petitioners were employed elsewhere. GENESIS The Florida Legislature, in 1985, enacted Chapter 386, Part 11, Florida Statutes, The Florida Clean Indoor Air Act, (Act), under the authority of which, in February, 1986, the Department promulgated its own "Smoking Policy" incorporated in Rule 17-105, F.A.C.. This rule prohibited smoking in all Department facilities except in those areas specifically exempted as designated smoking areas. These included private office areas and employee lounge areas as well as the first floor cafeteria. Dale Twachtmann was appointed Secretary of the Department in January, 1987. At the very beginning of his incumbency, he became aware of the ongoing controversy over smoking within the Department and concluded that a management decision to put the matter to rest was called for. He determined, from the information made available to him, that even before his arrival, the headquarters building in Tallahassee had serious air handling problems due partially, at least, to activities that had previously been carried on in parts of the building. A previously operating print shop and laboratory were moved shortly after his arrival. He could not determine how much of the "bad" air was attributable to each program. THE RULEMAKING PROCESS Mr. Twachtmann also determined that smoking within the building was considered, by a significant number of employees, to be a part of the air problem second only in seriousness to the laboratory. When the lab was moved, those proponents of clean air struck upon smoking as their bete noire. No studies of air quality were done during Mr. Twachtmann's tenure, however, nor had anything been done to curb smoking except for the promulgation of the original Rule 17-105. The controversy over smoking within the building continued, however, culminating in the drafting and circulation, in December, 1988, by an employee, Mr. Billy Kahn, of a petition to totally ban smoking in the facility. This petition was signed by approximately 275 of the 500 to 600 employees in the Tallahassee office. Though the Secretary did not recognize all the names thereon, he did recognize enough to satisfy him of its validity, notwithstanding a few irregularities on it, and he was influenced by it to do something. It reinforced his own observations of the smoking situation gathered while going about the building. For example, though he never noticed smoke in the halls, nor did he ever see anyone smoking in open areas, he would find some heavy and unpleasant odors in some of the break rooms and the lunchroom where smoking was allowed. Mr. Twachtmann thereupon decided, as Department Secretary, to take action which would resolve the smoking issue once and for all. He decided to initiate the rulemaking process with a view toward, if and after all legal requirements were met, banning smoking completely in all Department facilities and vehicles. Part of the process, which called for workshops to advise all employees of the proposed action and to solicit employee input, included consideration of alternative solutions to banning smoking. The process also included consideration by the Secretary of the substantial information available on both sides of the issue which was provided to him by his staff and by experts whose opinions on the matter were solicited. Much of this information was presented by advocates of both positions at a series of senior staff meetings held in early 1990 at which the senior staff voted unanimously to proceed with rulemaking to amend the smoking policy in Rule 17-105 to ban smoking. At this point, no studies had been made of air quality within the Tallahassee headquarters building. Nonetheless, after the vote was taken to amend the rule, in May, 1990, Mr. Shearer prepared and dispatched a memorandum to Department staff, referring to the "decision" by the Secretary to ban smoking from the headquarters building. This memo solicited personnel participation in the rulemaking process and instructed anyone who had any input to coordinate it through their supervisors. The task of drafting the amended rule was given to Mr. Peyton, the chief administrator of the Department, who, in turn, delegated the task initially to his counsel, Ms. Costas. Mr. Peyton was not told, when assigned his task, that he could not change the substance of the existing rule. Because Mr. Peyton was not satisfied with the draft of the proposed amendment prepared by Ms. Costas, he reassigned the task to one of his deputies, a nonlawyer, Ms. Drew. He instructions to her were to cut it down and make it simple, but to reflect the Department policy to ban all smoking in Department facilities and vehicles. The latter was an afterthought subsequent to Mr. Peyton's receiving comments regarding the smell in the Department's vehicles. After the draft of the rule was prepared, workshops to address the proposed rule were scheduled, noticed in the Florida Administrative Weekly, (F.A.W.), and conducted in various locations throughout the state. The published notice indicated discussion would include the need, if any, for the rule, and the proposed terms thereof. Instructions governing the conduct of the workshops and the method of handling employee comments were disseminated by Ms. Costas to the Deputy Assistant Secretary in each district. Those employees who held opinions on the need for or terms of the proposed rule were to be instructed to forward their comments in writing to the Department headquarters in Tallahassee. Hearings were held throughout the state in late June and early July, 1990. The comments received by Mr. Peyton, who conducted the Tallahassee workshop, and those submitted from elsewhere within the Department, were consolidated and summarized by Ms. Costas and thereafter forwarded, through Peyton, to the Secretary. Comments in writing were received from members in the Central, Northeast and Northwest Districts and orally from the Southeast District. There is no record of any comments having been received from any other district. All comments received were forwarded to, discussed with, and considered by the Secretary personally. Consistent with appropriate rulemaking procedure, a hearing on the rule was scheduled to be held by the Secretary regardless of whether there was a request therefor or not. In the interim, on June 20, 1990, copies of the hearing notice, the rule, the economic impact statement and the Statement of Facts and Circumstances Justifying the Proposed Rule were sent to the required agencies for coordination. Thereafter, based on the input received from employees and other pertinent sources, the rule was changed and notice thereof appropriately published in the F.L.W.. The secretarial hearing was held as noticed and did not result in any input sufficient to cause delay in the process. On July 27, 1990, the rule was certified to the Secretary of State by Secretary Twachtmann. MATTERS RELATING TO THE NEED FOR THE RULE There has been and continues to be discourse in the medical and lay communities on the harmful effect of secondhand tobacco smoke. While few disagree that the direct inhalation of tobacco smoke by smokers has harmful effects on the health of those individuals, controversy is still rampant as to what effect, if any, the forced inhalation by nonsmokers of tobacco smoke generated by smokers in the area, has on the health of these passive exposees. It is well recognized that chemicals shown to be carcinogens are found in tobacco, (cigarette) smoke. Responsible medical studies have also shown a higher incidence of lung cancer in persons exposed to second hand cigarette smoke than in those who have routinely been free of it. A secondary effect is a higher incidence of pulmonary disease and a detriment to lung development. "Secondary smoke" is that smoke generated by burning tobacco between puffs and that smoke exhaled by smokers. There is substantial evidence that the inhalation of secondary smoke for 8 or 9 hours per day over time increases the risk of cancer in an individual so exposed since tobacco smoke contains known carcinogens. Dr. Dennis Williams, a cardiologist accepted by the parties as an expert in the effect of tobacco on human health, is not aware of any showing of increased danger there in the workplace as a result of secondary smoke. However, studies have conclusively shown such an increased danger in the home and to children. Increased levels of nicotine and cotenine have also been observed in the blood and urine of nonsmokers in a workplace where smoking is permitted. Cotenine is a known carcinogen and nicotine, while not, itself, a carcinogen, is an addictive substance. The tar from cigarette smoke contains thousands of cancer causing chemicals. Admittedly, some of these can be found in substances other than cigarette smoke. However, lung cancer is now the leading cause of death among men and women in the United States, and 90% of all lung cancer deaths are due to the use of cigarettes and other tobacco products. Considering all the above, Dr. Williams feels there is no reasonable alternative to concluding that secondary smoke creates a health hazard to the nonsmoker who is frequently exposed to it. It is so found. It is also found that limiting smoking to a closed room does not protect the nonsmoking worker. Smoke quickly diffuses, through the ventilating system, throughout the total air of the facility. Cigarette smoking is a major cause of indoor air pollution and constitutes a major exposure of the worker to a carcinogen. Nonsmokers in the workplace have been found to have metabolized nicotine and cotenine in their urine which could have come only from secondary smoke to which they have been exposed there. The 1986 Report of the Surgeon General of the United States on the Health Consequences of Involuntary Smoking supports the conclusions drawn by Dr. Williams both as to the adverse health effects of secondary smoke and the ineffectuality of artificial separation, within the same air space, of smokers and nonsmokers. This report, along with other supporting information, was considered by Mr. Peyton during the rulemaking process and reported to Secretary Twachtmann prior to final decision. SPECIFICS The poor quality of air in the Department's headquarters building in Tallahassee has been known for some time. Studies of the building's air quality in both 1987 and 1988, while not dealing with the issue of cigarette smoking, both recognized the problem and recommended solutions. The building's ventilation is accomplished through two air handlers on each floor which re- circulate heated or chilled air, depending on the season. Interior air lost through doors and exhaust fans is replenished by outside air brought in by the air handlers. Approximately 88% of the air in the building at any time, however, is re-circulated. In very cold weather, when the introduction of cold outside air must be restricted, that percentage is increased. Any tobacco smoke in the air is, therefore, re-circulated again and again on the floor where it originates. Consequently, regardless of physical separation, nonsmokers sharing a ventilation system with smokers will be exposed to their smoke. In order to reduce that risk, internal air would have to be expelled and more outside air brought in. This cannot be done without a major modification to the building structure and a replacement of the existing air handling system. This is neither reasonable nor economically feasible. In order to reduce the air pollution problems within the building, the Department relocated two of the major polluting functions; the laboratory and the print shop. All these factors were known to and considered by the Department during the rulemaking process. Previous efforts were also made to accommodate the desires of both smoking and nonsmoking employees. Until the adoption of the total ban, smoking was allowed in private offices, in the break room on the fourth floor, and in the employee deli on the first floor. Since smoke concentration in the deli was heavy, many nonsmoking employees found it either unpleasant or impossible to eat there. Consequently, business and the resultant income therefrom was lost. On the other hand, since the ban on smoking, many smokers who formerly patronized the facility during their breaks no longer use it, with a resultant loss of business and income. The use of private offices for smoking was equally unsuccessful since not only were nonsmokers put off from entering either for business or other purposes, but smoke and the smell of smoke escaped through the ventilation system and open doors, and the odor of smoke, so unpleasant to many, would linger in an office long after the occupant thereof was gone. Taken together, the information available on the subject indicated that the only way to safely allow smoking in the building was to limit it to an area that was independently ventilated. This would require an independent access to the outside for the exhaust of old air and the re-supply of fresh air. Only one area in the building ever had an independent air exhaust, and that system, formerly in the laboratory, has been removed and is now being used in the Jacksonville district office. The former lab space is now an open office. As was found previously, physical modification of a currently operational building to accommodate the desires of a portion of the employee force is neither required nor justified. The issue regarding vehicles is somewhat different. The Department operates a fleet of state-owned vehicles, access to which is available to all Department employees. These vehicles are not separated into groups reserved for smokers or nonsmokers. Department employees are sometimes required to travel in Departmental vehicles. Some trips are of several hours duration, and while so occupied, the employees are on Department business. The vehicles also may be used, under proper authorization, to carry individuals other than state employees. Nonsmoking passengers, whether employees or not, may be in the position of riding with another passenger who smokes or in a vehicle which has previously been occupied by a smoker. There have been complaints regarding both situations, with the latter relating primarily to the objectionable smell left in the vehicle by the former smoking occupant. Dr. Williams opined that occupying a vehicle with another, smoking, individual poses the same risk to the nonsmoker's health as does occupying a room with such an individual. However, the residual odor of smoke left in a vehicle by a previous smoking passenger, while offensive, normally is not harmful. It is so found. All these factors were considered by the Department during the rulemaking process. The Department has taken the position that when Departmental vehicles are occupied by its employees, the vehicles are the employees' assigned workplace and individuals are, therefore, afforded the protection of the Act. OPERATION AND EFFECT Penalties for violation of the rule are incorporated therein and provide for a fine of $100.00 for the first violation, and of $500.00 for each subsequent violation in addition to discipline in accordance with the provisions of Chapter 17-130, F.A.C., the Department's disciplinary rule. Those provisions for fine are taken directly from the terms of the Act, Section 386.208, Florida Statutes. The disciplinary rule previously mentioned, (Section 17- 130.300(7)(b)2, F.A.C.), makes it a violation to smoke in a restricted area, an area in which smoking is prohibited. Penalties are outlined in the rule for the various violations which might occur, and each employee is provided with a copy of that rule upon employment with the Department. The Department claims it incorporated the fine provisions of the Act into its amended rule to "reference those disciplinary actions what would be involved" as a result of a violation of the rule and that they are informative only and do not create any additional disciplinary rules. This may be so, but any provision for discipline of an employee for violation of the terms of an agency rule should be incorporated in the agency's employee discipline rule to which reference is made in the instant rule. OTHER PROBLEMS Petitioners have objected to the use of the term, "right" in the amended rule which refers to the objection of nonsmokers to the effects of having to work in closed areas with smokers. Petitioners urge that the Department has sought to create and utilize a new "constitutional" right and that such action is unlawful and unsupportable. A thorough review of all the evidence presented in relation to the promulgation of this rule and its predecessor 1986 rule clearly demonstrates that the use of the term, "right" was no more than an in-artful word choice and in no way dispositive of the smoking issue. To be sure, the Legislature has, by implementation of the Act, encumbered the freedom of the smoker to engage in his passion in a public place, absent an affirmative designation of a smoking area. The use of the term, "public", does not necessarily mean only open to the general public. A building is public if it is owned or operated by a governmental agency. Here, the Department's use of the word, "right", in its rule is no more than a recognition of the differences of opinion which separate the ranks of the smoker and nonsmoker and a recognition of the proposition that the interests of one are as important as are those of the other. The Petitioners have also argued that in its implementation of the amended rule, the Department has denied them due process, specifically referring to the May 8, 1990 memorandum, and the participation in the rulemaking process of Ms. Drew, who was a signatory to the anti-smoking Petition solicited and presented by Mr. Kahn. In his memo, Assistant Secretary Shearer indicated that, "...a decision ha[d] been made .... " to ban smoking, and Petitioners claim that that "decision" having been made, the entire subsequent rulemaking process was a sham. Again we see what appears to be, in light of all that followed, no more than in-artful phraseology to announce the recognition of a Departmental problem and the initiation of a process designed to correct that problem. Admittedly, the use of that phrase raises a spectre of improper influence and a closed mind on the part of the Department hierarchy. However, the testimony of the principals, Secretary Twachtmann and Assistant Secretary Shearer, as to their intent from the beginning of the process, and the uncontroverted testimony regarding the openness of the succeeding activity toward the ultimate determination of a need for and the drafting of the proposed rule, clearly dispels any shade of impropriety. The process was conducted in the open. Employee comment was solicited and several forums were employed in which these comments, pro or con, could be made known to the Secretary. Inquiry was solicited and none who now object to the rule either asked questions or made recorded comment at the time. Petitioners have not shown by any definitive evidence of record, that any interested party who wished to object was prevented from doing so or dissuaded from negative comment by fear of reprisal. To the contrary, the evidence clearly demonstrates that all required notices were published, and that management went far beyond that which was required to insure the opportunity for fair comment and to, as best as possible, guarantee the maximum available input to the Secretary before the final decision was made. As for the participation of Ms. Drew in the process, the evidence shows that she is Mr. Peyton's deputy. When Mr. Peyton received Ms. Costas' draft of the proposed amended rule and was dissatisfied with it, he requested Ms. Drew, with Ms. Costas, rework it. His guidelines were to cut excessive wordage and make it simple. The operating thesis was also simple and left little room for interpretation. There is little risk that Ms. Drew, or anyone else, could have, in this instance, gone beyond the basic instructional premise upon which she was to work because of her own feelings about the subject matter. The lines were simply drawn on this issue. There were those who favored allowing smoking and those who favored abolishing it. To claim that one who supported abolition could not, thereafter, work on a rule to bring about that end is unrealistic and inappropriate. Petitioners also claim that the Department failed to provide a statement of data and methodology with its Economic Impact Statement, (EIS). Review of the EIS filed with the Joint Administrative Procedures Committee, (Respondent's Exhibit K), reveals that it contains the required statement which appears to demonstrate that the agency's methodology for information collection was appropriate. There was no evidence presented by Petitioners to demonstrate to the contrary. Petitioners further claim that the Department was not the appropriate agency to take the action regarding smoking, assuming, arguendo, such action was appropriate. The Act, which formerly provided that the government entity "responsible for the management and maintenance" of a government building should "implement" the provisions of the Act, was amended in 1988 to require that agency only to report observed violations of the Act to the Department of Health and Rehabilitative Services. In this case, the management and maintenance of Departmental buildings is accomplished through contracts entered through leases on the buildings let through the Department of General Services, (DGS). Petitioners claim that as a result, the rule, if appropriate, should have been promulgated and implemented by DGS. Petitioners overlook the fact that the Department is ultimately responsible for the headquarters building and the activities therein, and is the major employer therein. Petitioners raise the issue that the Department should have, under the Act, designated a smoking area since it claims to be the agency charged with enforcing the Act. This claim presupposes that the Act requires a smoking area be designated in all buildings where smoking is otherwise regulated. Such is not the case. Section 386.202 specifically noted that the Act shall not be interpreted to require the designation of smoking areas. The Department has construed the Act to indicate that as the employer, it implements smoking policy in its facilities. This interpretation conforms to that of other state agencies, including the Department of Education, the Department of Transportation, and the Division of Administrative Hearings, all of which have implemented smoking policies in their facilities. The Department's interpretation appears to be correct, even though different agencies than those listed have provided for separate smoking areas.
The Issue Whether or not on or about the 2nd day of April, 1976, the Respondent, Charter Distributing Company, licensed under the Cigarette Laws, did unlawfully attempt to evade or defeat the state tax by attempting to gain a cigarette tax rebate on unstamped cigarettes, contrary to s. 210.18(1), F.S.
Findings Of Fact At all times material to the Notice to Show Cause, the Respondent, Charter Distributing Company was licensed under License No. 26-106, CWD, with the State of Florida, Division of Beverage. On April 2, 1976, Mr. Jesse Bob Cooper, an Excise Auditor II, with the State of Florida, Division of Beverage went to the licensed premises at 975 Broad Street, Jacksonville, Florida to cancel certain cigarette imprints to enable the licensee to get a refund of cigarette taxes paid. Those cigarettes upon which the imprints were to be cancelled were cigarettes which were taken out of commercial circulation because they were stale. These cigarettes were part of a quantity of cigarettes which were being returned by manufacturers representatives of the various cigarette companies to Charter Distributing Company. The arrangement was to have the cigarette company representative bring the cigarettes into the warehouse area and stack those cigarettes in a "dump area" and receive credit for them. The amounts being brought in by the manufacturers representatives were from 30 to 250 cartons on each occasion. The president of the Respondent, William Moore, would then ask the manufacturers representative if the cigarettes had the appropriate stamps for cancellation. When he was prepared, he would contact the Petitioner's representative to come over and cancel the cigarettes for refund. On April 2, 1976, when Mr. Cooper arrived to cancel the Cigarettes, the cigarettes were placed on a table and examined for proper stamps. On that date, eleven (11) packs of cigarettes were discovered which had inappropriate stamps. Nine of those packs of cigarettes were meter stamped, that is, had meter imprints that were inappropriate. One pack of the eleven packs had the heat or Addco stamp and the final pack had a hand stamp. Although the latter two packs of cigarettes had the appropriate form of stamp, the cellophane wrapper around the pack had been taped there and the stamps were not correct for those two packs. The process was being conducted by having Mr. Moore cancel the packs of cigarettes that were being examined, while Mr. Cooper witnessed. There was no effort at concealing the inappropriate packages of cigarettes made on the part of Mr. Moore. The eleven packs of cigarettes had been brought in by some undisclosed manufacturer's representative and had not been discovered until the point of checking for tax refunds, which was the activity on April 2, 1976. The Respondent, after discovery of the inappropriate stamps had been made, did not make any further request for tax refund and has not received such refund. Finally, there was no showing that the Respondent had any knowledge of the impropriety of the stamps prior to the discovery on April 2, 1976 when these eleven packs and other cigarettes were being cancelled.
Recommendation It is recommended that the Respondent, Charter Distributing Company, License No. 26-106, CWB, be released from further responsibility to answer to the Notice to Show Cause herein. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles T. Collette, Esquire Division of Beverage Department of Business Regulation The Johns Building 725 Bronough Street Tallahassee, Florida 32304 Stephen D. Busey, Esquire 500 Barnett Bank Building Jacksonville, Florida 32202
