Findings Of Fact At some time prior to March 1, 1963, Randall R. Aleno, a former deputy sheriff with the Volusia County, Florida, Sheriff's Department; his brother, Mick Aleno; his father, Charles Aleno; and his wife, Patty Aleno, formed Aleno's Enterprises, Inc., a Florida corporation, with Randall Aleno owning more than 50 percent of the corporate stock. Randall Aleno is the corporate president; Mick Aleno,the vice president; Charles Aleno, the treasurer; and Patty Aleno, the secretary. Having been a long-time resident of Volusia County, Randall Aleno saw a need for and developed a concept for a form of mobile concession stands to operate on the St. Johns River in the general area of Volusia County and the contiguous counties north and south of it. Before taking any definitive steps toward implementing this idea, Randall Aleno, on January 10, 1983, wrote letters both to the Commanding Officer of Port Operations for the U.S. Coast Guard in Jacksonville, Florida, and a representative of the Volusia County Health Department outlining in general terms the nature of his plan and seeking approval of those agencies for the project. Apparently, neither agency interposed any objection. He also contacted the local office of the Petitioner, Division of Alcoholic Beverages and Tobacco, where he spoke with Agents Dunbar, Blanton, and Clark, outlining his proposal. On at least one occasion, Mr. Aleno told Division of Alcoholic Beverages and Tobacco representative Clark, while at the counter in the Division of Alcoholic Beverages and Tobacco Daytona Beach office, that he intended to make bulk sales of beer from boats tied to buoys in the St. Johns River at the time of sales, but which would, when not in operation, be moored at the Tropical Marina in DeLand, Florida. In Dir. Clark's opinion, this type of proposed operation was not covered or provided for in the statutes or in the rules of the Division and he felt the applications for licenses for these operations should he denied. According to Mr. Clark, when he advised Mr. Aleno of this on several occasions, Mr. Aleno still wanted to try and submitted the application. At some time during this period, Mr. Aleno, who had been with the sheriff's office for 14 years, retired from that employment, 1/ purchased three houseboats (one 39-foot boat and two 26-foot boats) which he thoroughly rehabilitated to be capable of storage and the sale of sandwiches and package sales of soft drinks and beer. The sandwiches to be sold were to he pre- wrapped, the beverages in cans, coffee in styrofoam cups with lids, and all condiments would be in sealed packages. No food or drink was to be opened or consumed on board the boats, floating concession stands. When the boats were completed, because he had been told by Division of Alcoholic Beverages and Tobacco agents at the Daytona Beach office that a license would not be issued to a moving establishment, he secured a boat slip for each boat at the Tropical Marina. Mr. Aleno picked up the applications for beverage licenses from the Daytona Beach office. Me also wrote to a beverage supervisor at the Jacksonville office in an effort to prepare the way for his applications. Mr. Aleno was told, at some point in the procedure, that he would need to submit copies of the plans, the boat layouts and details of the operation. All of these, in addition to the letters from the Coast Guard and the county health department, were submitted for consideration with the applications. Mr. Aleno attempted to describe his proposal to each official with whom he came into contact. The local Division of Alcoholic Beverages Supervisor, Lt. Powell, and Mr. Clark admit that Mr. Aleno told them what he planned to do with his operation and how it would work. Lt. Powell reviewed the complete application and discussed it with Mr. Clark. He, Powell, was aware that the sales of unopened packages of beer would be made out on the river and not at the Tropical Marina before the application was forwarded to Tallahassee for action, but there was nothing written in the application to indicate the sales would be made up and down the river. The applications showed the location of the premises as Tropical Marina, Slips 41, 42 and 43. The applications were forwarded to Tallahassee in the normal course of business apparently without recommendation one way or the other by the local office. The licenses were issued on April 1, 1983, showing their location as Tropical Marina, Slips 41, 42 and 43, respectively, Lakeview Road, DeLand, Florida. The 1-APS licenses were issued to Aleno's Enterprises, Inc. trading as Randv's Subs #41, 42 and 43. (License Numbers 74-1565, 74-1566, and 74-1567) Respondent does not operate its boats as a steamship line. It does not carry people, other than employees, on the boats for pay or gratis. None of the boats go more than 100 miles in either direction from the point of mooring. Respondent has not been selling beverages for consumption on the premises, but has been making package sales only of beer off the boats. Barry Schoenfeld, Chief of Licensing Records for Respondent in Tallahassee, reviewed these applications and the license files sometime during the summer of 19-83 after the licenses were issued. His review of the files led him to conclude that the Respondent's operation does not qualify for a 1-APE license because the boats are not permanently moored at their docks. Florida Beverage Laws require, generally, a fixed permanent structure. There are some exceptions for movable vehicles such as steamships, trains, and airplanes and also for pleasure boats which go more than 100 miles per outing. He believes Respondent's boats would qualify for this latter license which, however, is a COP license, not an APS license. He has thoroughly examined the Respondent's applications; and the way the total file reads, it gives him the impression the boats would be moored at the dock in a fixed permanent location. This is why the licenses were issued. Since an obvious mistake was made, and since Mr. Schoenfeld did not know of any provision in the Florida Beverage Law which covers an operation such as that of Respondent, in the summer of 1983, he called Respondent, speaking with Mrs. Patty Aleno, and advised her the operation would have to cease. Upon advice of counsel, Respondent did not stop the operation at that time.
Recommendation That Respondent's licenses be revoked without prejudice so as to permit Respondent or its officers to, in the future, apply for the issuance of a beverage license, if otherwise qualified.
The Issue The primary issues for determination are whether Brother J. Inc., d/b/a A.J.’s Sports (Respondent) violated Section 561.29(1)(a), Florida Statutes; and secondarily, if Respondent committed such a violation, what penalty should be imposed?
Findings Of Fact Petitioner is the agency vested with general regulatory authority over the alcoholic beverage industry within the state, including the administration of the laws and rules relating to the sale of alcoholic beverages. Respondent is subject to the regulatory jurisdiction of Petitioner, having been issued license number 47-02607, Series 4-COP by Petitioner. That license allows Respondent to make sales for consumption on premises of liquor, wine, and beer at his establishment located in Tallahassee, Florida. Events at issue in this proceeding revolve around a fraternity/sorority party held at Respondent’s establishment on the evening of March 30/April 1, 2005. Members of the Phi Kappa Psi fraternity and the Delta Nu Zeta sorority decided that they would host a “construction” theme party. To facilitate the party, the social chairman of Phi Kappa Psi contacted Respondent to make arrangements. Respondent’s establishment has several large areas on its ground floor and a single, 1,800 square foot room on the second floor. Respondent agreed to reserve its upstairs room for the Phi Kappa Psi/Delta Nu Zeta party, to waive its cover charge for party patrons, and to make “dollar wells, dollar beers” (i.e. discounted prices on certain alcoholic beverages) available to party participants for a fee of $300.00. On the night in question, most of the participants met at the Phi Kappa Psi house before going out for the evening. They gathered around 10:00 p.m. and socialized. Some people were getting their “construction” costumes together; others were “pre- partying” –-drinking before going out to minimize the size of the bar bill when they go out later. The majority of the people at the frat house at that time were drinking. At some point around 10:30 or 11:00 p.m., the party moved from the Phi Kappa Psi house to Respondent’s establishment, with party members leaving in groups of three or four to drive from the fraternity house to Respondent’s establishment. It was estimated that 15 or so sorority members and 15 to 30 fraternity brothers attended the party, and that somewhere between a third and a-half of those people were not of legal drinking age. When they arrived at Respondent’s establishment, the sorority and fraternity party makers used a side entrance set up for them by Respondent for use in getting to the party. A doorman was posted at the side entrance that checked the age of each of the patrons. He would place a “Tybex®” wristband on those persons who were over the age of 21 and would mark the hand of those under 21 with an indelible marker. Once inside, party members would go upstairs, where there was a bar with a bartender, a disk jockey, and a dance floor. The party continued on until around 2:00 a.m. on the morning of April 1, 2005, at which time the bar closed and the patrons left. During the course of the evening, 244 alcoholic beverages were served at the upstairs bar at Respondent’s facility. No evidence was presented that established with any degree of accuracy how many fraternity and sorority members actually were at the party and how many were of legal drinking age. The evidence of party attendance provided at hearing varied widely and was in each instance an estimate or a guess. Numerous persons who were not members of Phi Kappa Psi or Delta Nu Zeta were in attendance. There is no accurate estimate of how many legal drinkers were at the party or how many drinks each legal patron may have had. The Underage Drinkers Shane Donnor was observed drinking at the frat house that night. He did not, however, appear to be intoxicated when he left the frat house. He had a wristband indicating that he was over 21, which allowed him to drink at Respondent’s establishment, even though he was not of legal age. It is unknown how he obtained his wristband. Donnor was observed to have a glass in his hand while at Respondent’s establishment, but no one could confirm that he was drinking alcohol. While at Respondent’s establishment, various witnesses described him as appearing under the effects of alcohol and thought he appeared quite intoxicated. By 2:30 a.m. on April 1, Donnor had a blood alcohol level of 0.27. This corresponds to at least 10 drinks and probably more. It is an extremely high level of intoxication, which could result in a coma or even alcohol toxicity in some persons. He was quite drunk and had been so for some time. Stephanie Reed was carded upon entering Respondent’s establishment, as was her boyfriend and all the others in her party. She had one or two drinks, but she didn’t buy them herself. One of the fraternity brothers purchased her drinks for her. Reed testified at one point that she did not receive a wristband when she entered the establishment (signifying legal drinking age); later, she testified that she did due to the intervention of some unknown man who told the doorman to give her a bracelet. Reed’s testimony on this point is inconsistent and cannot be credited. Christopher Lowe was carded as he entered Respondent’s establishment. He received marks on the back of his hand indicating that he was underage. Although he was marked as being underage, Lowe was able to purchase two drinks from the bartender. He ordered the drinks; did nothing to conceal the underage marks on his hand; was served; and left money on the bar. Tania Vasquez was carded upon entering Respondent’s establishment and was marked as being underage. She did not buy any drinks while at the party, but was given an alcoholic beverage by a friend that she consumed while on the premises. Elizabeth McKean, and everyone who entered with her, were carded when they arrived at the party. McKean was marked as being underage. She did not buy any drinks for herself, but was given a shot of tequila by someone else. She drank the shot quickly to avoid detection by Respondent’s staff. David Moser had a roommate who manufactured fake i.d. cards. When he entered Respondent’s establishment, he was carded and presented a false drivers license that made it appear that he was over the age of 21. He was marked as though he was over the legal drinking age and was able to buy and consume drinks at the bar, which he did. Lee Habern had several sips of a friend’s drink that was “snuck” to him. Prevention Of Underage Drinking It is well recognized that underage persons will seek to obtain alcoholic beverages at bars. This action by underage youths results in a “cat and mouse” game whereby the bar will change its tactics in trying to prevent underage drinking and the underage drinkers will change their methods of trying to obtain drinks. Respondent tries to combat underage drinking by creating a culture of compliance. This starts with the initial hiring of employees by Respondent. Respondent’s policy is that no underage drinking will be tolerated. This policy is stated in the Employee’s Handbook. Every employee is given a copy of the handbook upon becoming employed and is required to sign an acknowledgement that he or she received it. The policy is reiterated in informal training at every staff meeting. Every new employee at Respondent’s establishment is required to go through formal training with regard to liquor laws, the effect of alcohol on the human body, dealing with customers who have had too much to drink, and related topics. These courses are known as “PAR”, “TIPS”, and “Safe Staff” and are offered by the Florida Restaurant Association and Anheiser-Busch. Respondent has also offered training provided by agents of Petitioner. These formal training programs are offered continuously to employees, and at least one of the programs is offered three times each year. The initial formal training is accomplished within 30 days of the employee being hired. Records are maintained by Respondent as to who receives what training, and when it is provided. Respondent has a policy that everyone who is served alcohol is to have his or her age checked. When the bar is not busy, this is accomplished by having the waitress check the patron’s I.D. When the bar is busier, a doorman is posted at the entrance to check the patron’s I.D. If the patron is over age 21, he or she is given a wristband; if under age 21, an indelible mark is placed on the back of the hand. Since Respondent has experienced persons copying their “over 21” designation, it is changed on a nightly basis. Fake identification cards, if detected, are confiscated. On busier nights, Respondent might confiscate 20 to 30 of such fake identifications. On the night in question, the doorman confiscated five altered cards. Respondent also has a floor manager on duty at all times that the bar is open. The floor manager will circulate throughout the establishment to make sure that all of the policies and procedures, including the prevention of underage drinking, are being carried out. On the night in question, the floor manager, Bo Crusoe, is documented to have worked and in the nominal course of events would have checked the upstairs area of the premises several times. On busy nights, Respondent will hire one or more off- duty City of Tallahassee police officers to serve as security at the bar. The officers work in their police uniforms. These officers serve first and foremost as high visibility deterrents to unlawful activity. Their mere presence serves to minimize underage drinking. Respondent regularly has off-duty law enforcement on the premises. Respondent also has a security consultant, Officer John Beemon, who is a Tallahassee Police officer. He evaluates the need for additional security and communicates those needs to the owners. When he becomes aware of a new wrinkle in underage persons obtaining alcohol, he works with Respondent to prevent the practice. He assists the doormen in identifying fraudulent I.D.s. Respondent has always implemented whatever recommendations Beemon makes to them. Generally, the security measures used by Respondent have proven effective. From time to time, Petitioner will try a “sting operation” at Respondent’s establishment by sending a minor into Respondent’s bar to see if they are able to purchase alcohol. On every such “sting operation” Petitioner’s decoy was identified and stopped at the front door and was not allowed to purchase alcoholic beverages. Carrie Bruce is Petitioner’s special agent for the Tallahassee area. She is familiar with most Tallahassee alcoholic establishments and her testimony establishes that Respondent’s establishment is not considered a “problem bar” by Petitioner and is considered to be better than other area bars in preventing underage drinking. To the best of the owner’s knowledge and Beemon’s knowledge, no one has ever knowingly served a drink to a minor at Respondent’s establishment. Further, Respondent has never previously been charged with serving alcohol to minors.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
Findings Of Fact At all times pertinent to the issues herein, Respondent Bisayne Menage Club, Inc., trading as Chantel Menage on the Bay, located at 2333 Brickell Avenue, Miami, Florida held 4-COP-SRX alcoholic Beverage license No 23-4231. The Respondent being a corporation, records of the Division of Business Regulation reflected that the sole corporate officer was Mitchell J. Segal who was president, secretary, and treasurer. On October 22, 1982, pursuant to an ongoing investigation, Officer Jonas Sears, in an undercover capacity, entered the Respondent's club where he met with Jose' Carballea (Coco), who he knew from some other narcotic transactions prior to this time which occurred off the licensed premises. At this time, Coco took Sears back into the kitchen area and, from a small metal key container which he had in his pocket, removed two small plastic bags containing a white powdery substance, one of which he sold to Sears for $80.00. The substance purchased by Sears then was subsequently identified as cocaine. From the access that Carballea had to all areas of the club, utilizing keys in his possesssion, and from the fact that he had advised Sears that his nephew owned the club, Sears concluded, and the evidence clearly establishes, that Core was, in some form or fashion, substantially high in the management of the operation. Sears, accompanied by Detective Ramirez, went back to the club on October 26, 1982 in the afternoon. As on the previous visit, the club was not open to the public at this time and the two officers met with Coco in the office area and then walked into the lounge. At this point Sears advised Coco he was there to buy another gram of cocaine. Coco took him to one of the offices off the kitchen where from a desk he removed a clear plastic bag containing a white powdery substance from the metal container he had used previously. He gave this bag to Sears in return for which Sears gave him $80.00. Before leaving, Sears was served a beer by Coco. The white powder substance purchased by Sears on this occasion was subsequently identified as cocaine. On November 9, Sears, again accompanied by Ramirez and another officer went to the club at 3:45 p.m. and met Coco in the kitchen. After a short discussion there, Coco took Sears into his office where he removed two plastic packages of white powder from the three that were in his metal key container. Sears gave Coco $160.00 for the two packets which were subsequently identified as containing cocaine. On this occasion, Coco indicated to Sears that consistent with the previous conversation they had had, he was interested in buying "Club" which was another name for Canadian Club whiskey. He took a piece of paper from a legal pad and wrote thereon the words, Canadian Club" and several other liquors including "J&B," "Amaretto," "Tia Maria," and "Red/Black" asking Sears if he could get the liquor the same day. This conversation transpired after Sears had asked Coco if his boss still wanted liquor. Coco had previously asked if Sears could get filet mignon. On November 18, 1982, in the afternoon, Sears, Ramirez, and a U.S. Customs agent, all in an undercover capacity, entered the club, When they arrived there, they were advised that Coco was not there. After a short wait, the officers left, returning approximately 40 minutes later. At this time, Sears came in by himself, meeting Coco in the lounge area. When Coco asked about the meat, Sears replied that none was available. However, he had the requested liquor in a friend s car parked outside. The liquor in question was liquor which had been purchased by the Miami Police Department for this operation and consisted of various liquors in case lots. It included some whiskeys that Coco had not mentioned. Coco negotiated with Ramirez in Spanish during which Ramirez allowed himself to be beaten down considerably in price from the original asking figure. Once the par ties struck the bargain the officers were instructed by Coco to carry and stack the cases in the rear office previously mentioned. This office was occupied by Letitia Thomas who was seated at a desk in the office. It was Ms. Thomas who took $245.00 from the pile of cash on her desk and paid Ramirez. Ms. Thomas was obviously an employee of the club. On the way out, Coco called Sears and Ramirez over and asked if Sears wanted to buy any more cocaine. When Sears said he did not have enough money with him, Ramirez offered to pay and Coco removed a small plastic bag containing a white powder from the small metal key container he carried and sold it to Sears for $80.00. This substance was subsequently identified as cocaine. When Sears and Ramirez went into the club again on December 3, 1982, to meet with Coco as per a prior arrangement, Coco again asked Sears if he wanted to buy cocaine. At this point, Sears said he wanted he grams. On this occasion, Coco sold Sears two packages of a substance subsequently identified as cocaine for $70.00 per package instead of the normal $80.00 per package. On December 8, 1982, Sears and Ramirez again went to the Respondent's club. They had previously discussed with Coco not only the sale of liquor and meat but also video recorders which the officers had clearly represented as being stolen. On this occasion, Coco said that his nephew wanted a recorder for his home and when this nephew, identified as Roberto Carbajal, arrived at the club, they discussed the video recorder with him. During this conversation, Carbajal indicated that he knew that the merchandise was stolen. After discussion back and forth, the parties arrived at a purchase price of $120.00 for the brand new unit. The officers were instructed by Carbajal to put the recorder in Coco's office and Carbajal paid Ramirez from his pocket. Carbajal, at this time, was a management employee of the license holder. On December 16, 1982, Sears and Ramirez went to the licensed premises as instructed by Coco. At that time, they had 56 cases of Dom Perignon champagne. Coco had told them to bring the champagne, which, he had indicated, was to be used by the club management. Their understanding with Coco was that he would buy the champagne upon delivery and would also sell them larger amounts of cocaine. When they arrived, Coco was not there and they dealt with other people in the club's employ. The man who approached them was identified as Mario Cordoves, who indicated that neither Coco nor Carbajal were there. Cordoves went off for a moment and returned a few moments later with an individual identified as John Radney who, he indicated, would be interested in buying the champagne. Radney agreed to take all 56 cases but stated that he could not take delivery at the club. He asked them to put some of it in his car. He also indicated that part of the 56 cases could be sold to someone else through his arrangement which was all right with Ramirez so long as the price remained the same. While this was going on, another individual, identified as George Kovacs, approached Ramirez and Sears, and negotiated to buy 18 of the cases of champagne for $100.00 per case. Kovacs left and came back with another individual who was to help him load the champagne into his car. All of this took place on the licensed premises attended by a bartender and two kitchen helpers in addition to Cordoves, Radney, Kovacs, and Kovacs assistant. When the deal was set, all the parties moved out into the parking lot and part of the champagne was placed into Kovacs vehicle. When this was done, Ramirez and Sears identified themselves as police officers and placed Kovacs under arrest. While this transaction was unfolding, Sears was told by Kovacs or someone at the club that the champagne would be sold in the club as part of a "Dom Perignon special" at $100.00 per bottle instead of the normal $200.00 per bottle they usually got. At the time of their arrest, Kovacs and Radney indicated they were up-front operators for the licensed club through an arrangement with Mr. Carbajal but were having difficulty with him. They indicated that Carbajal was the actual owner of the club while Mr. Segal was referred to as an attorney who was acting as registering agent for the corporation which he had set up. Neither Sears nor Ramirez ever saw Segal at the club on any of the visits they made there. Regardless of who was the beneficial owner of the stock in the corporation, Segal was listed as the sole officer and as such, was responsible for the operation.
Findings Of Fact Charles J. Evans and Inez P. Hamer, t/a Nezzers, hold beverage license No. 52-00669 and held this license at all times relevant hereto. On July 13, 1983, Beverage Agents Brown and Rozar, following up on a complaint of gambling at Nezzers, visited Nezzers around 7:30 p.m. It was a quiet night in the bar. Upon entry they observed two men playing pool at Table A (Exhibit 2), which is the nearest to the bar of the four pool tables in the room. Table A is a time table and the players pay based on the time the table is used. The other three tables are coin tables which are activated for play by depositing $.50 in coins in the table for each game. Brown and Rozar each bought a beer and commenced playing pool on Table D (Exhibit 2). Some 15 to 30 minutes later two other men started playing pool at Table B (Exhibit 2). At this time, in addition to the six pool players, the only people in the bar were the bartender, Marjorie Hamer, and two or three other patrons. Brown and Rozar observed the men at Table B, later identified as Valencourt and Mosely, flip a coin to see who would break. Thereafter, the agents several times observed Valencourt and Mosely exchange money at the conclusion of a game. One would toss a bill on the pool table and the winner [presumably] would pick it up and put it in his pocket. Hayman and Foreman playing at Table A were overheard to say one or the other was "one down" or "two down" and were seen putting a bill on the end of the bar away from the cash register from where it was picked up by the other player. On several occasions the players were observed getting change from Marjorie Hamer. Table A is closer to the bar than to Table D. Accordingly, Marjorie Hamer, setting behind the bar, was in as good or better position to observe the exchange of money as were agents brown and Rozar. Marjorie Hamer, the 22-year- old daughter of Inez Hamer, has worked at establishments dispensing alcoholic beverages and is generally familiar with beverage laws prohibiting gambling at a licensed establishment. Two large signs are conspicuously posted in the room which say "NO GAMBLING." On July 13, 1983, neither of the owners was present during the time the agents were in Nezzers. Inez Hamer had worked until 6:00 p.m. when she was relieved by Marjorie. Marjorie had earlier told her mother that she did not feel well and would like not to come in on July 13, but Inez told her it would be a quiet night without much business and Marjorie came in. Marjorie Hamer concurred with the testimony of Brown and Rozar that there were three pool tables occupied and few other people were in the bar. Marjorie spent most of the evening reading the paper and testified she did not see any of the pool players give money to his opponent at the end of a game or overhear any conversation that would lead her to believe gambling was going on.
Findings Of Fact Respondent holds alcoholic beverage license No. 39-1060, Series 4-COP, for the premises known as the Big Oak Patio, located at 501 South Waller Street, Plant City, Florida. Petitioner's investigation indicated that Charles W. Nettles, Jr., the son of Beatrice Nettles, was primarily responsible for the operation of the licensed business and the payment of all bills attributed to the licensed business. The evidence established that Charles Nettles, Jr., had opened a bank account with the Hillsborough State Bank of Plant City which was used to pay business expenses for the Big Oak Patio. Bank records revealed that Charles Nettles, Jr.'s bank account showed an address of 501 South Waller Street, Plant City, the address of the licensed premises owned by Beatrice Nettles and E. W. Strickland. Petitioner's inspection of the bank records established that nine checks signed by Charles Nettles, Jr. were issued to alcoholic beverage distributing companies servicing the Big Oak Patio. On September 15, 1982, Petitioner's investigator contacted the Department of Revenue for the State of Florida, Tampa District, and confirmed the sales tax number for the Big Oak Patio was issued to Beatrice Nettles and Charles Nettles, Jr. The investigation also showed that Charles Nettles was responsible for having the power turned on by the electric power company, Plant City Office, for the Big Oak Patio and has been responsible for payment of the utility bills for the Big Oak Patio. As part of Petitioner's investigation, the licensee, Beatrice Nettles, was interviewed at her residence in Plant City. Throughout the interview, Mrs. Nettles denied any involvement with the business and repeatedly informed Petitioner's investigator that Charles Nettles, Jr. owned the business. At the formal hearing, testimony by Respondent showed that the original license of the Big Oak Patio was held in Beatrice Nettles' husband's name. Upon his death, over fifteen years ago, Beatrice Nettles and E. W. Strickland were appointed as co-administrators by the probate court handling Charles Nettles, Sr.'s estate. An order was entered by this court authorizing the co- administrators to continue the business of the Big Oak Patio. The appointment of co-administrators at the death of Charles Nettles, Sr. was necessitated by the fact that Charles Nettles, Jr. and his sister were not of age and could not lawfully operate the business. Neither Charles Nettles, Jr. nor his sister have gone back to court to have the co-administrators removed and final distribution made of the assets of Charles Nettles, Sr.'s estate.
Recommendation From the foregoing, it is RECOMMENDED that Respondent furnish Petitioner a court order removing the co-administrators and distributing the remaining estate of Charles Nettles, Sr., in so far as it affects the licensed business, along with proper application(s) for such heir(). It is further RECOMMENDED that if Respondent does not present the above described order and application(s) by March 1, 1983, that Petitioner enter a Final Order revoking alcoholic beverage license No. 39-1060. DONE and ENTERED this 30th day of December, 1982, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1982.
The Issue Whether Petitioner, Emad F. Abdelmeseh, d/b/a Emad's Texaco is entitled to recover attorney's fees and costs in defending the charges made against him in the case of Department of Business Regulation, Division of Alcoholic Beverages and Tobacco vs. Emad F. Abdelmeseh, d/b/a Emad's Texaco, Division of Administrative Hearings, Case No. 91-1618, under the provisions of Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code (formerly 22I-6.035, Florida Administrative Code) and, if so, the amount which Petitioner is entitled to recover.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Petitioner was licensed by the Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, to sell alcoholic beverages from the premises of Emad's Texaco, having been issued license number 63-2090, 2APS. The Petitioner timely filed the petition in the instant case in accordance with Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code (now Rule 60Q-2.035, Florida Administrative Code). The Respondent timely filed a written response alleging that Respondent was substantially justified in issuing the Notice To Show. With its response the Respondent filed an Affidavit challenging the amount of attorney's fees and cost requested by the Petitioner. However, this Affidavit was subsequently withdrawn and the Respondent made no further effort to contest the attorney's fees and costs incurred by the Petitioner. Emad Abdelmeseh is domiciled in the state of Florida and is the sole proprietor of an unincorporated business known as Emad's Texaco, located at 101 East Memorial Boulevard, Lakeland, Florida. Emad's Texaco employs less than 25 employees, and the Petitioner's net worth is less than Two Million Dollars ($2,000,000.00). Petitioner is a "small business party" as that term is defined under Section 57.111(3)(d), Florida Statutes. On July 11, 1990, agents for the Division of Alcoholic Beverages and Tobacco (Division), John Blair and Brad Nelson, participated in a joint investigation with the City of Lakeland Police Department (CLPD) in the illegal selling of alcoholic beverages to minors. Throughout the course of this investigation the Division's agents were on official duty. Agents Blair and Nelson met with the CLPD detectives and Smalley prior to the investigation and remained with the investigation until its conclusion, including the investigation of Emad's Texaco. The Division, through its agents Blair and Nelson, fully participated in the investigation conducted on July 11, 1990, including Emad's Texaco, and did not simply rely on the CLPD's independent investigation to institute action against Emad's Texaco. This case was not what the Division considers an "adopted case" - one handled entirely by another law enforcement agency which request the Division to prosecute. Therefore, the investigation, as far as agents Blair and Nelson were concerned, should have been conducted in accordance with the Division's Policy and Procedure. The investigation of July 11, 1990, involved the use of an underage operative by the name of J. Karen Smalley n/k/a J. Karen Raschke (Smalley) with previous experience working with the Division, and documented as an underage operative by the Division. Prior to July 11, 1990, Smalley had also been used as an underage operative by the CLPD. During the July 11, 1990 investigation, Smalley was being paid by, and was under the direction of, the CLPD. Before leaving the Police Department to assist in the investigation on July 11, 1990, Smalley was instructed by both Detective Phillips and Agent Blair, on separate occasions, concerning her duties and responsibilities in regard to the investigation. During the course of the investigation on July 11, 1990, Smalley was sent on to the premises of Emad's Texaco for purposes of attempting to purchase an alcoholic beverage. Smalley went to the cooler area in Emad's Texaco's licensed premises and took a six-pack of beer to the check-out counter. Amad Abdelmeseh asked to see Smalley's identification. Smalley either handed her driver's license to Amad Abdelmeseh or laid her driver's license on the check-out counter. Emad Abdelmeseh looked at Smalley's driver's licenses which showed her date of birth to be July 24, 1970, just a few days short of being 20 years of age. Although the photograph of Smalley on the driver's license was taken in 1986, she still maintained her youthful appearance on July 11, 1990. On July 11, 1990, Smalley's hair was blonde, having dyed her hair which was brown when the driver's license was issued. However, Smalley did not dress-up or wear make-up on July 11, 1990, so as to appear older than her age of almost 20 years. There was insufficient evidence to establish facts to show that at the time Smalley was attempting to purchase the six-pack of beer on July 11, 1990, that she: (a) told Emad Abdelmeseh that she was 21 years of age or older or; (b) produced a driver's license, other than the driver's license referred to above, that listed a date of birth which would have indicated an age of 21 years or older or; (c) in any fashion attempted to misrepresent her age as being 21 years or older After looking at Smalley's driver's license, Emad Abdelmeseh sold Smalley the six-pack of beer. After making the purchase of beer, Smalley exited Emad's Texaco and advised Detective Phillips that she had made a purchase of beer from the person inside the store. Detective Phillips advised Detective Tim Snyder of the purchase. Detective Snyder then went inside Emad's Texaco and identified Emad Abdelmeseh as the person who had sold the beer to Smalley. On August 8, 1990, Agent Blair served a Notice of Intent To File Administrative Charges against Emad Abdelmeseh's alcoholic beverage license as a result of his sale of alcoholic beverage to Smalley. On August 8, 1990, Abdelmeseh complained to Agent Blair about the lapse of time between Smalley making the purchase of beer on July 11, 1990 and the serving of the Notice of Intent on August 8, 1990. Emad Abdelmeseh did not complain to Agent Blair on August 8, 1990 that Smalley had misrepresented her age to him when she made the purchase of beer on July 11, 1990. In fact, Emad Abdelmeseh did not advise Agent Blair, or anyone else with the Division, of his allegation that Smalley had misrepresented her age to him on July 11, 1990, when she purchased the beer from him until after the Notice To Show Cause was issued by Lt. Robert Bishop. After the Notice of Intent was served on Emad Abdelmeseh, Agent Blair prepared a draft Notice To Show Cause and a synopsis for review by Lt. Robert Bishop, District Four Supervisor. Lt. Bishop has been a supervisor with the Division for 23 1/2 years. On August 16, 1990, Lt. Robert Bishop, acting with authority from the Division Director, issued a Notice To Show Cause which was served against the Petitioner's alcoholic beverage license on August 17, 1990 alleging that Petitioner had sold alcoholic beverages from the premises of Emad's Texaco to a person under the age of 21 years contrary to Section 562.11(1)(a), Florida Statutes. The issuance of the Notice To Show Cause was the initiation of the case against the Petitioner and the Division was not a nominal party in this case. In issuing the Notice To Show Cause, Lt. Bishop relied solely on the information in the Notice To Show Cause and the synopsis prepared by Agent Blair without any further investigation or discussion with Agent Blair. The Division had used Smalley as an underage operative on several occasions prior to the investigation on July 11, 1990, and had found her to be a credible and reliable underage operative. Therefore, the Division reasonably relied on Smalley in the issuance to the Notice To Show Cause to Emad Abdelmeseh, notwithstanding that on July 11, 1990, Smalley was being paid by, and was under the direction of, the CLPD. Agent Blair has been an agent with the Division for 16 years and his reports, according to Lt. Bishop, are impeccable. Therefore, Lt. Bishop had no problem in issuing the Notice To Show Cause to Emad Abdelmeseh based solely on Agents Blair's report, notwithstanding that Agent Blair's report did not specifically indicate that he had strictly adhered to the Division's Policy and Procedure. Although the record reflects that Agent Blair did not strictly adhere to the Division's Policy and Procedure on July 11, 1990, there is competent substantial evidence to establish facts to show that the CLPD detectives basically filled in the gaps, so the speak. It is clear from the testimony of Lt. Bishop that even if had he made further inquiry of Agent Blair concerning Agent's Blair's adherence to policy and procedure, it would not have changed Lt. Bishop's mind about issuing the Notice To Show Cause because there was a reasonable basis in law and fact to issue the Notice To Show Cause - there was credible evidence that Emad Abdelmeseh had sold an alcoholic beverage to an underage operative in violation of the Florida Statutes. Along with the Notice To Show Cause served on Emad Abdelmeseh there was a Notice Of Informal Conference which provided for an Informal Conference between the Division and Emad Abdelmeseh on August 28, 1990 at 3:00 p.m. It was at this informal conference on August 28, 1990, that Emad Abdelmeseh first advised anyone from the Division of his allegation that Smalley had misrepresented her age to him on July 11, 1990. The Informal Conference did not resolve the issues and a Request For Formal Hearing signed by Emad Abdelmeseh and dated September 4, 1990 was filed with the Division. In the Request For Hearing Emad Abdelmeseh sets out what he considers to be the disputed issues of fact. In this request there is an allegation that the underage operative was misleading in that when asked if she was 21 years of age she continued to purchase the beer as if she was an adult. There was no mention of Smalley presenting her driver's license By letter dated February 12, 1991, Emad Abdelmeseh again sets out what he considers to be the facts. Among other things, he alleges that Smalley claimed that she was over the age of 21 years and that she did present her driver's license for identification. On March 11, 1991, the matter was referred to the Division of Administrative Hearings for conduct of a formal hearing. The Division prosecuted this action in the case of the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco vs. Emad Abdelmeseh, d/b/a Emad's Texaco, Division of Administrative Hearings Case No. 91-1618. On October 30, 1991 the Division exercised its administrative discretion and entered an Order of Dismissal dismissing the charges against Emad Abdelmeseh set forth in the Notice To Show Cause issued on August 16, 1990. The reasons behind the Division's dismissal of the case were not presented at the hearing on April 29. 1992 or November 17, 1992. The Petitioner is the prevailing small business party as that term is defined in Section 57.111(3)(c), Florida Statutes. The hourly rate and the total number of hours expended by Petitioner's attorney, and others under his control, and the costs incurred in the defense of the Petitioner as set out in Amended Affidavit and attached as Exhibit B to the Petitioner's Amended Petition in the amount of $11,429.77 are reasonable, and should be the amount awarded in the event Petitioner is successful in presenting his Amended Petition. There is competent, substantial evidence to establish facts to show that at the time the Notice To Show Cause was issued on August 16, 1990 the Division had made a meaningful inquiry into the matter and there was a reasonable basis in fact and law to initiate the action. No special circumstances exist which would make the award unjust.
The Issue Whether petitioner qualifies for a II-C Club alcoholic beverage license, which is issued to Nonprofit organizations or clubs devoted to promoting community, municipal, or county development or any phase of community, municipal or county development.
Findings Of Fact Code I is a nonprofit Florida corporation located at 3420-31 West Broward Boulevard, Ft. Lauderdale, Florida. In February, 1982, it applied for a II-C or Club alcoholic beverage license pursuant to Section 561.20(7)(a)3, Florida Statutes (1981) and Rule 7A-3.19, Florida Administrative Code. On August 3, 1982, DABT denied its application, asserting that it was not qualified for licensing under tie statute and rule. Code I was incorporated as a Florida nonprofit corporation in 1962. Ms. Bessie Walton and her former husband formed the corporation to raise funds to build a home for the elderly. With funds subsequently generated by the corporation, Tropical Home for Senior Citizens was constructed and continues to be operated in Ft. Lauderdale, Florida. In 1974, the corporation became inactive. According to several members of Code I, the goals and purposes of the Club are to support and make contributions to benevolent causes. This testimony, however, is based upon representations made to them by others concerning the goals and purposes of the Club. (Testimony of Troutman, Reddick) In the past, Code I has donated funds to numerous organizations or allowed them to use its facilities--without charge. These organizations, included Broward County Youth Football, Greater Bethel AME Church, Tropical Home for Senior Citizens, North Fork Elementary School, and Kappa Alpha Psi Fraternity (for scholarships). It has also sponsored foster families. Code I has charged, however, some organizations $175 for the use of its facilities. (Testimony of Troutman) The articles of Incorporation of Code I state that the objectives of the organization are to provide a meeting place for recreational purposes of its members, to provide aid and comfort for its members in case of sickness or death, and to assist in any other matters pertaining to the highest orders of American Citizenship. For carrying out these purposes, the corporation is authorized to buy, hold and sell real and personal property, to invest funds, and to construct and operate social club houses. (P-1) Neither the articles nor the bylaws of the corporation explicitly, or by reasonable inference, dedicate it to promoting community, municipal, or county development. (P-1, P-4) According to its treasurer, its main purpose is to provide a facility where the public can enjoy an evening on the town in a conducive club atmosphere. Membership is open to the general public. An alcoholic beverage license would enable the Club to earn additional funds for its operations.
Recommendation Based on the foregoing, it is RECOMMENDED: That Code I's application for a II-C Club alcoholic beverage license be DENIED, without prejudice to its right to reapply after amendment of its charter and bylaws. DONE AND ORDERED this 25th 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 25th day of February, 1983.
The Issue The issue in this case is whether the allegations set forth in the Second Amended Administrative Complaint filed by the Department of Business and Professional Regulation (Petitioner) against Eden Supply, LLC (Respondent), are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent held alcoholic beverage license no. BEV5810598, series 13CT, which is commonly referred to as a "caterer's license." Florida Statutes set forth specific restrictions applicable to the sale or service of alcoholic beverages by the holder ("licensee") of a caterer's license. One such restriction is that service of alcohol at an event catered by the licensee is restricted to events where the licensee is also providing prepared food. On Friday, November 18, 2011, the Respondent sold and served alcoholic beverages for consumption on the premises by customers attending an event at Club LAX, 7430 Universal Boulevard, in Orlando, Florida. The Respondent provided no prepared food to persons attending the event at Club LAX on November 18, 2011. There were no menus, plates or utensils present at the event. There were no dining tables or food service staff present at the event. On April 21, 2012, the Respondent sold and served alcoholic beverages for consumption on the premises by customers attending an event at Club Magic, 5600 West Colonial Drive, in Orlando, Florida. The Respondent provided no prepared food to persons attending the event at Club Magic on April 21, 2012. There were no menus, plates or utensils present at the event. There were no dining tables or food service staff present at the event. The Respondent asserted that on the dates referenced above, food was made available to customers at the end of the catered events and that many customers took the food "to go" as they left the event. The assertion was contradicted by the personal observations of witnesses who testified at the hearing, was unsupported by credible evidence, and has been rejected. Florida law requires that a licensee maintain, for a period of three years, all records "required by the department by rule" to demonstrate compliance with the requirements for the caterer's license. One such requirement is that a caterer must derive "at least 51 percent of its gross revenue from the sale of food and nonalcoholic beverages." The Petitioner has alleged that the Respondent failed to "maintain separate records of all purchases and gross retail sales of food and non-alcoholic beverages, and all purchases and gross retail sales of alcoholic beverages." Such records are required to determine whether the caterer is meeting the "51 percent" requirement. At the request of the Petitioner, the Respondent provided various documents covering three specific time periods. The materials were reviewed by an employee of the Petitioner, who testified at the hearing in detail as to his unsuccessful attempt to correlate the Respondent's documents to specific events allegedly catered by the Respondent. The documents submitted by the Respondent are insufficient to permit a determination as to whether or not the Petitioner has complied with the statutory requirements to maintain a caterer's license. The Respondent presented no credible evidence that the employee's review of the submitted documents was inaccurate or otherwise flawed. The Respondent asserted that the statute does not specifically state the time frame within which the "51 percent" requirement must be met. The documents submitted by the Respondent to the Petitioner lack sufficient reliability to establish that the statutory requirement was met at any point in time. The applicable statute also requires that a licensee's records include "licensed vendor receipts for the purchase of alcoholic beverages and records identifying each customer and the location and date of each catered event." Alcohol purchased by a licensee for a catered event, but not used at the event, must remain with the customer for whom the event was catered or must be returned, unopened, to the vendor for credit or reimbursement. At the hearing, the Petitioner presented the testimony of an alcohol vendor with whom the Respondent had an account for the purchase of alcohol in 2012. The vendor reviewed records of the Respondent's purchases and testified that it was "impossible" to bill the Respondent for a single event because the Respondent did not return the unused products. The records for the Respondent's purchases of alcohol from the vendor cannot be credibly correlated to specific events allegedly catered by the Respondent. The quantities of alcohol purchased cannot be reliably attributed to consumption at any specific event. The vendor described the records as a "running invoice" because alcohol taken by the Respondent for use at one event and unused, was retained by the Respondent for use at subsequent events. There was no credible evidence offered to contradict the vendor's testimony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order imposing a fine of $1,000 and revoking the Respondent's license no. BEV5810598, as set forth in the penalty guidelines. DONE AND ENTERED this 30th day of October, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2013.
The Issue The matters presented for consideration concern the two-count Notice to Show Cause/Administrative Complaint filed by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, against the Respondent, Bland Corporation, which trades as Grace's Place. Count One (1) of that Complaint alleges that beginning May 15, 1977, through November 16, 1979, the Respondent failed to disclose the names and addresses of persons interested directly or indirectly with its business for which a beverage license had been issued and that in doing so, the Respondent acted contrary to Section 561.17, Florida Statutes. More specifically, the Complaint alleges that one Grace Sherman had an undisclosed interest in the licensed premises. Count Two (2) of the Administrative Complaint alleges that the Respondent, on or about May 15, 1977, failed to comply with the order of the Director of the Division of Alcoholic Beverages and Tobacco dated April 15, 1977, in that Grace Sherman failed to divest her interest in the Respondent's beverage license and this was contrary to Section 561.11, Florida Statutes, and Section 561.29, Florida Statutes.
Findings Of Fact This action is here presented by way of a Notice to Show Cause/Administrative Complaint filed by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, against the Respondent, Bland Corporation, which trades as Grace's Place, 2502 North Albany Avenue, Tampa, Florida. The terms and details of the allegations may be found in the issues statement of this Recommended Order. The Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, is a State agency charged with regulating those persons within the State of Florida who hold beverage licenses issued by the Petitioner. This responsibility includes the requirement that the Petitioner take administrative action against those licensees believed to have violated the terms and conditions of their 1icensurezzz. In pursuit of this responsibility, the allegations as set forth herein were brought against the Respondent, Bland Corporation, a Florida corporation, Beverage License Number 39-537, Series 4- COP. The Bland Corporation held the subject beverage license in the beverage license year, October 1, 1976, through September 30, 1977, using the trade name, Ace Lounge. In the course of that year, the trade name was changed to Grace's Place and the Respondent has continued to do business under the name Grace's Place up to and including the time of the administrative hearing in this cause. On April 15, 1977, the Corporation was solely owned by Darlene K. Cowans and was operating under the business name, Ace Lounge. At that time a stipulation and settlement was consummated between Ms. Cowans with the accompanying signature of the present counsel for the Respondent, Mr. Levine, and signed by the petitioner in the person of its Director. This stipulation and implementing order settled the pending administrative charges against the licensee. The first charge related to an allegation that the Respondent had a person, namely, Grace Bland Sherman, who was directly or indirectly involved in the Respondent's business and that Mrs. Sherman had an undisclosed interest in that business, contrary to Section 561.17, Florida Statutes, and Rule 7A-2.14, Florida Administrative Code. There was a second Count in that complaint document which alleged that the Respondent had relinquished management and control of the licensed premises to the same Mrs. Sherman, in contravention of Rule 7A-3.17, Florida Administrative Code. The stipulation in its operative parts stated that the Respondent would pay a fifteen hundred dollar ($1,500.00) civil penalty within fifteen (15) days of the date of the stipulation or, upon failure to do so, an automatic suspension of fifteen (15) days would take effect. There was additional language in the stipulation for penalty which stated: "Licensee further agrees to the divesture[sic] of interest in this license of Grace Bland Sherman within thirty (30) days of receipt of this stipulation approved by the Director." (A copy of this Stipulation and the Statement of Charges may be found as the Petitioner's Composite Exhibit No. 4 admitted into evidence.) In examining the latter provision within the Stipulation, the details of what the parties intended in effectuating the purposes of the divestiture of interest which Grace Bland Sherman might have in the license was not spoken to by the Petitioner in the present hearing and the complaint allegations do not fill this void. (Grace Sherman is an individual who has been required to serve a probationary term in connection with a court disposition in the United States District Court, Middle District of Florida, which probation was concluded in February, 1980. The particular violation for which this probationary term was given to Grace Sherman was not shown in the course of the hearing.) Grace Bland Sherman gave testimony and that testimony establishes that Mrs. Sherman was acting as a bookkeeper for the Respondent on April 15, 1977, and continued to serve in that capacity at the time of the hearing. Her duties included and now include daily bookkeeping, daily preparation of receipts, coordination of the payment of payroll taxes and sales taxes, and the preparation of bank deposits for the business. Following the April 15, 1977, stipulation, Darlene K. Cowans, who was the sister of Grace Sherman, sold her 100 percent controlling interest in the Bland Corporation to Marlon Lewis, the son of Grace Sherman. Marlon Lewis paid Darlene K. Cowans five thousand dollars ($5,000.00) cash with a balance of seventy-eight thousand dollars ($78,000.00) due and owing to be paid from profits of the licensed premises in exchange for the control of the assets of the Corporation. A copy of the stock assignment may be found as Petitioner's Exhibit No. 5. The stock assignment took place on June 14, 1977, and the Petitioner allowed Marlon A. Lewis to be substituted as the President, Secretary, Treasurer and owner of the Bland Corporation for purposes of the Corporation holding the subject beverage license. A copy of the application for change of name, officers and ownership, together with Certificate of Incumbency and Declaration of Stock Ownership and license investigation papers may be found as the Petitioner's Composite Exhibit No. 3 admitted into evidence. The substitution of officers and ownership took place in 1977 and at the time of the hearing Marlon Lewis remained as the President, Director and owner of the Corporation, with Marjorie Lewis serving as Vice President and Treasurer, and Vedus McCray serving as the Secretary. The business is managed by Sallie M. Hubert. (Marlon Lewis has other employment and is not involved with the matters of routine management of the licensed premises.) The principal operating bank account of the Corporation is conducted through the Southeast Bank of Tampa, in Tampa, Florida. Those persons listed above as officers and manager of the Corporation are empowered to write checks on the corporate account of the Respondent, together with Grace Sherman, the bookkeeper. A copy of the authorization for signatures may be found as Petitioner's Exhibit No. 6 admitted into evidence. Petitioner's Exhibit No. 36 admitted into evidence is a copy of other signature cards related to the operating account and the right to withdraw funds from corporate savings accounts. Grace Sherman receives a salary from the Respondent and the Petitioner's Composite Exhibit No. 7 contains a number of salary checks issued on the above referenced Southeast Bank of Tampa account, for the period November 27, 1977, through September 26, 1979. Some of these checks here issued by Grace Sherman and some were issued by other individuals within the corporate organization. There are several other checks in this series of exhibits. One of those checks is a ten dollar ($10.00) check written to the Secretary of the State of Florida for the purpose of paying a filing fee for the 1978 Annual Report for Cowans Realty. The remaining two checks in this series relate to checks issued by Grace Sherman for the payment to the Tampa Bay Buccaneers, one of those checks indicating that it is for "Bucks tickets". Each of the two remaining checks is in the amount of three hundred twenty dollars ($320.00). No further explanation of the reason for expenditures related to the several checks was made during the course of the hearing. The Bland Corporation pays for life insurance and medical insurance for the benefit of Marlon A. Lewis on policies issued by Bankers Life Company. These moneys for payment are deducted from the operating account of the Petitioner in the Southeast Bank of Tampa. A copy of the payment drafts and other matters related to the policies may be found as Petitioner's Composite Exhibit No. 8. Grace Sherman is the beneficiary of the life insurance policy. The Respondent pays for a life insurance, disability and double indemnity policy for the benefit of Grace Sherman. This policy is with the Wabash Life Insurance Company and deductions are made from the aforementioned operating account to effectuate payment for the premiums. The beneficiary for the life insurance aspect of this policy is Marlon Lewis. A copy of the policy and premium payment drafts may be found as the Petitioner's Composite Exhibit No. 9 admitted into evidence. In addition, the Corporation through the same operating bank account, pays for a medical policy for the benefit of Grace B. Sherman, including major medical of up to twenty-five thousand dollars ($25,000.00). A copy of the policy and bank drafts for payment may be found as Petitioner's Composite Exhibit No. 10 admitted into evidence. This policy is as issued by American States Insurance Company. In the years 1977, 1978 and 1979, the Respondent employed the Bookkeepers Business Service Company to keep its books in the way of profit and loss statements. The arrangement for these services was made by Marlon Lewis and the routine coordination for these services was through Grace Sherman, the bookkeeper of the Corporation. The services continued until such time as the Bookkeepers Business Service Company unilaterally discontinued the service due to a management decision unrelated to any disagreement with the Respondent. The profit and loss statements for the month of October, 1978, entered by the bookkeeping service and found in Petitioner's Composite Exhibit No. 11, do not reflect a two hundred dollar ($200.00) cash withdrawal from the Corporation's operating account in the Southeast Bank of Tampa. This check is written by Grace Sherman and indicates that the purposes were "quarters for weekend". On November 28, 1977, Marlon Lewis, representing Bland Corporation on that date referred to as Bland, Inc., and Grace Sherman were granted a bank loan by Southeast Bank of Tampa for purposes of consolidating the personal debts of Marlon Lewis and Grace Sherman. This loan was issued to the Respondent, Bland Corporation, and seven thousand dollars ($7,000.00) of Marlon Lewis's personal debts and fourteen thousand eight hundred dollars ($14,800.00) of personal debts of Grace Sherman were retired. The amount of loan to the borrower, Bland Corporation, referred to as Bland, Inc., was twenty-one thousand eight hundred dollars ($21,800.00). The arrangement for the new loan obligated the Respondent Corporation to allow draws from its operating business account at the Southeast Bank of Tampa, in the amount of four hundred sixty-three dollars and nineteen cents ($463.19) for a period of sixty (60) months and in fact those drawals have been made. The details of this financing and examples of debit charges to the operating account of the Respondent Corporation and the lending institution may he found in the Petitioner's Composite Exhibit No. 17 admitted into evidence. On May 12, 1978, Bland Corporation in the person of Marlon A. Lewis with Grace Sherman as guarantors borrowed twenty-four thousand four hundred ninety-four dollars and sixteen cents ($24,494.16) for the purpose of purchasing a 1978 Mercedes Benz automobile. By this arrangement, the bank required security through the assignment of certain savings accounts which were the property of Grace Sherman. The automobile had been selected by Grace Sherman and a 1976 Cadillac automobile, which was her property, had been used in trade. At present, the automobile is primarily used by Grace Sherman. It is also used by the Respondent Corporation's manager and by the owner, Marlon Lewis. Petitioner's Exhibits Nos. 30 and 31 admitted into evidence are papers dealing with the purchase of the automobile from Precision Motor Cars of Tampa, Florida, and the Petitioner's Composite Exhibit No. 18 admitted into evidence is a copy of the promissory note and assignment of savings deposits and other matters related to the loan. The insurance on the Mercedes Benz automobile was initially written by Eastern Underwriters listing Grace Sherman as the insured as opposed to Bland Corporation, the true owner of the automobile; however, this problem occurred due to certain confusion in the office of Eastern Underwriters and was not due to any improper motives on the part of the members of Bland Corporation or Grace Sherman. The exhibits dealing with this insurance coverage may be found as Petitioner's Exhibits 32 through 35 admitted into evidence and Respondent's Exhibits 2 through 4 admitted into evidence. On August 14, 1979, Sallie M. Hubert, the manager for the Respondent/Licensee, paid a twenty-five dollar ($25.00) membership fee in a private club, the Copper Door, and this membership was issued in the name of Grace Sherman. The check in payment may be found as Petitioner's Exhibit No. 25 admitted into evidence, and the membership card may be found as Petitioner's Exhibit No. 24 admitted into evidence. Grace Sherman had prior to the time of the payment of the membership fees in the Copper Door paid for an individual membership in a private club known as the Cypress Club, and the amount of that payment was fifty dollars ($50.00). The check in payment may be found as Petitioner's Exhibit No. 26 admitted into evidence. Both of the private club memberships mentioned above were drawn on the corporate account of the Bland Corporation referred to before and the purpose of those memberships was for the entertainment of Grace Sherman and Marlon Lewis. Grace Sherman, at the insistence of Marlon Lewis, made arrangements to have Mrs. Sherman's mother's house fumigated and the payment on the installment contract which financed the fumigation service was made on the corporate account of the Bland Corporation and was subsequently reimbursed by Marlon Lewis. Exhibits dealing with this arrangement for service may be found as Petitioner's Composite Exhibits 27 and 28 admitted into evidence. In the application form which is petitioner's Exhibit No. 3, in responding to the question related to the disclosure of the names of any of the persons directly or indirectly interested in his business, Marlon Lewis indicated "N/A". Therefore, Grace Sherman was not shown to have any direct or indirect interest in the license which was held naming Marlon Lewis as the primary officer and the owner of the Bland Corporation. Likewise, Grace Sherman was never required by the present ownership of the Respondent Corporation or by any requirement of the agency proven herein, to register her fingerprints with the District Office of the Division of Alcoholic Beverages and Tobacco in connection with her association with the current principal in the license, Marlon Lewis.
Recommendation Upon the consideration of the facts in this matter and in view of the conclusions of law reached, it is RECOMMENDED that the charges against the licensee be DISMISSED. 4/ DONE AND ENTERED this 18th day of August, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1980.
The Issue The issue for consideration in this hearing is whether Respondent's beverage license, Series 14BC, No. 39-03729, should be disciplined because of the matters outlined in the Notice to Show Cause filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Division was the state agency responsible for the licensing of establishments for the dispensing and sale of alcoholic beverages and enforcement of the beverage laws of the State of Florida. McKown's, Inc., a corporation whose sole stockholders are Duncan and Gloria McKown, holds 14ABC license number 39-03729, located at The Cabin, an establishment situated at 8205 North Dale Mabry Highway in Tampa. This license is a license to operate a bottle club on the premises, and allows patrons to bring their own bottles into the club to drink from. Patrons may either bring their bottle each time they come, or they may leave it at the club to be used each time they visit. Patrons must drink from their own bottle or as the guest of another bottle holder, but cannot buy alcoholic drinks from the licensed establishment. The establishment may sell only ice, setups and food - no alcohol. Mr. McKown is Secretary-Treasurer of McKown's, Inc., the licensee in issue here. He has been in the restaurant and service business since 1937. He opened a large restaurant and lounge in Dunedin, Florida in the early 1960's, and opened The Cabin approximately fifteen years ago with a county bottle club license. When state licensure became required, approximately three years ago, he secured one of those as well. Mr. McKown claims he was open every day from 2 to 7 AM. His clientele was mostly made up of people in the service industry - people who work at night and get off early in the morning. These are people such as waitresses, cooks, restaurant and bar managers. Many of his patrons work at or manage high quality restaurants, and the interior of The Cabin is decorated with T-shirts from many of them. He believes that as a general rule, his clientele is of good quality and is law abiding. The Cabin is made up of one building and a patio. It has one front door, which is manned by a security guard, and there is a sign posted on the inside of the front door which indicates the facility is a private club, non- members of which must pay a service charge. Though it once was private, it is now open to anyone of legal age. If the door is closed, an individual approaching from the outside can not see the sign. Security is designed to keep out minors and to insure that persons admitted have a bottle with them or already inside. The two Messrs. Bailey are the security guards. They wear uniforms similar to those worn by law enforcement people and carry firearms. McKown claims this i s because a firearm was discharged on the premises some time ago and the guards' firearms and uniforms tend to dissuade drunks. Many companies have bottles for their employees. It is Mr. McKown's policy, which he believes is consistent with state law, that two or more people can come into a bottle club and drink from one bottle. It is also a practice of his to allow people to leave their bottles on the premises for future use. Many of his customers are repeat customers who are recognized by security and other employees. If the patron is known to the security guard, he or she might not be checked. Each entrance requires the payment of a $7.00 service fee which authorizes the patron two setup chips. When the patron comes in with a bottle, the cashier puts the patron's name on it using a role of waterproof tape on which is marked the name in color-coded pen, depending on what month it is. Bottles are discarded after three months, whether empty or not. Once a bottle is brought in and given to the bartender, it is kept on the service island behind the bar. At one time, the licensee maintained a membership list. The practice was abandoned when it was decided to seek patrons from the service industry. The inside of the bar is lighted but dark. Music is provided by a jukebox which plays continuously. If patrons do not put money in, the machine comes on automatically after twelve minutes, and the volume is loud, though Akins did not think so. There are speakers both at the jukebox and in the ceiling. The men's room has one stall and two urinals. Mr. McKown removed the door to the stall to keep illegal activity, such as drug sales or homosexual activity, from going on inside. By removing the door, he can readily check to determine that nothing improper is going on inside the stall. The ladies' room has two stalls with cafe doors. He put that type of door in at the same time he removed the men's stall door for the same reason. Both restrooms are to be checked periodically by the manager, by Mr. McKown or the cashiers, as available. The Cabin is busier on weekends than during the week and the staff is adjusted accordingly. On the weekends, there are two cashiers as opposed to one during the week. By the same token, on the weekend, three bartenders are on duty as opposed to two during the week. A maintenance man is also employed. At all times pertinent to the issues herein, Special Agent Jennifer Akins was a special agent with the Division and had been since December, 1989. She was a certified law enforcement officer and, prior to May, 1994, had been involved in between fifteen and twenty undercover operations, of which at least ten involved narcotics. She was trained in the identification of narcotics and street level narcotics activities by the Drug Enforcement Agency, and has taken other professional courses in the subject. Prior to the institution of this undercover operation, Akins had been in The Cabin four or five times. S/A Murray is also an experienced agent with twenty-five to thirty undercover investigations to her credit. At least half involved narcotics. She, too, had been at The Cabin prior to the onset of this investigation. On January 12, 1994 Akins went to The Cabin where she was stopped outside the door by the security guard, Mr. Bailey. He advised her it was a bottle club and inquired if she had a bottle. When she said she had, he also told her that her name would be placed on it and it would be kept behind the bar and drunk from when she was there. She gave over the bottle of rum she had brought. She was not required to fill out an application form nor to pay a membership fee. Akins went back to The Cabin with S/A Murray at approximately 5:15 AM on May 10, 1994. They were met at the door by Mr. Bailey and paid a $7.00 per person cover charge to Mr. Sparks, an employee, who was stationed inside the door. This cover charge entitled them to two drink chips which they would exchange for setups. Additional chips could be bought at $3.50 each. Once inside, they gave their bottle of rum to Mr. Sparks who, after placing a piece of tape with Murray's name on it on the bottle, gave it to the bartender. Akins asked where the bottle of rum was she had brought in on January 12, 1994, and was told it was gone. Bottles are disposed of after ninety days if not consumed first. Consequently, the only bottle the agents had on May 10, 1994 was the bottle they brought that visit. That night, Akins and Murray sat at the bar and were served one or two drinks each from the bottle they had brought in. Later on that evening, Akins was served a drink made with vodka by Mr. Strauss, a bartender. Akins saw Strauss make the drink and knows he did not use the bottle they brought in. Besides, when she tasted it, she recognized it was vodka, not rum. She paid for the drink with one of the chips she got upon entering. She drank only a small part of the drink in order to comply with Division policy that undercover agents will not drink enough to become impaired. Akins and Murray left The Cabin about 6:50 AM without taking the rum bottle they had brought, but while there, Akins observed a white male she recognized as Victor near the women's restroom talking with a white couple. Victor received money from the male in the couple, counted it, and gave the man something in return. This procedure is consistent with what she had observed in other drug transactions. Later on that evening, she again saw Victor near the men's restroom. Victor approached a black male who, after entering and exiting the restroom, handed Victor a small package and received something in return. While this was going on, both were furtively looking around. Akins didn't see what was transferred. Even later, Akins saw Victor exchange something with a black male near the front door. Again, she could not see what it was. S/A Murray also observed this activity and it appeared to be drug activity to her as well. Akins and Murray went back to The Cabin about 5:00 AM on May 11, 1994. As they approached the door they were met by two employees who let them in, and they paid a white female cashier upon entry. On this occasion they did not have a bottle with them. When asked, they said they had a bottle there from the previous visit and were allowed in. Akins ordered two or three drinks from Mr. Sparks, who was behind the bar that evening. The first drink she had was rum, but she does not know from which bottle it was poured. She later ordered a vodka drink which Sparks poured without asking if she had a vodka bottle there. She paid for the vodka with a chip. Later that evening, Mr. Leal, also an employee of The Cabin, offered her a drink. He had called out that the police were outside and that everyone had to stay inside. He sweetened the call by saying he would buy a drink for everyone. At this time, Akins asked for a Zambuca, which they did not have, and they gave her Amaretto instead. Though she saw Mr. Sparks make the drink, she could not tell if there was a name on the bottle or not. Leal offered Murray a drink as well. All this time, Mr. McKown, whom she knew, was present in the facility, going in and out from the back office talking to people. He had done this the previous night as well. Akins left the premises at 7:00 AM and returned again at 5:00 AM the following day, May 12, 1994, accompanied by S/A Murray. They did not bring a bottle this time because they had not taken their bottle with them the previous night. They went through the usual routine of passing the guard, who asked what bottle they would be drinking from. When they said they had one inside, the guard went to check and thereafter allowed them. After paying the cover charge, they were admitted. Inside, Akins saw two black males and a white male exchanging something outside the men's restroom. They were looking around and speaking quietly, and she did not see what was exchanged. That evening, she spoke with the Bartender, Lee, and with Mr. McKown. She also spoke with a patron, Mr. LaRuso, who approached her and commented that she was either a cop or seeking cocaine. In response, she said she wasn't a cop. The two agents both ordered rum from the bartender who poured the drinks from a bottle with their name on it. The rum ran out while the drinks were being poured, so the bartender finished pouring from another bottle which was not theirs. Mr. McKown was in and out of the back office all during this period and would stop and talk with patrons. He appeared quite normal and was not drinking at the time. They returned on May 17, 1994 at 5:20 AM. Mr. Bailey was the security guard who admitted them. On this occasion they had a bottle of rum with them and paid the cover charge. Their bottle was marked by the bartender and Akins ordered a drink from him which was made from their bottle. Later on she also ordered and was served a vodka drink by the bartender who did not inquire from whose bottle he should pour it. S/A Murray was also served a vodka. Akins paid for the vodka drink with a chip even though neither she nor Murray had ever brought a bottle of vodka to the establishment. That evening, she spoke with Mr. Sparks, Mr. Mille and Mr. McKown. Sparks and Mille were both employees. Sparks said he had been divorced because he used too much cocaine. Mille said he had been arrested for cocaine. These discussions took place at the bar or at the cashier stand and were carried on in a normal tone of voice. The agents went back to The Cabin on May 24, 1994 at 4:45 AM with a confidential informant, (CI). They were met at the door by a white male who allowed them to enter. When they did, they paid the cover charge to Mr. Sparks. They brought a bottle of scotch with them even though they had previously brought in at least two bottles of rum. At that point, Akins did not know if the last rum bottle they had brought on May 17, 1994 was still there, so they brought the scotch to be sure they would be admitted. The bottle of scotch was marked and placed behind the bar by Mr. Sparks. Mr. Strauss and a white female were tending bar. Akins approached Strauss who asked if she wanted what she had just brought in or rum instead. When she replied she preferred rum, Strauss went to look for some in the back. When he came back, he said he could find none, but would give her vodka instead. Akins agreed and Strauss made a vodka drink for her. It was, in fact, vodka, and she paid for it. She also had another vodka drink that evening, made for her by Mr. Strauss, who did not use any of the bottles the agents had brought in. Agent Akins, in a conversation with Mr. Sparks that evening, asked him if he had any more cocaine like that which she had purchased on May 17, 1994. This conversation took place near the juke box which was playing, but not loudly. Their conversation was in a normal tone. Strauss walked away after her question and she went up to the cashier's booth and was talking with some people when Sparks returned. He handed her a small package in front of Mr. Bailey and Agent Murray. It consisted of a small cellophane wrapper containing a white powder for which Sparks would not take any money. Akins put the package in her pocket and it was later analyzed at the Florida Department of Law Enforcement, (FDLE), laboratory and determined to be cocaine. After that purchase was made by Akins, the CI purchased a substance from a lady known as Michelle, who Akins described as an employee of The Cabin. Mr. McKown denies this, however, and it is found that she was not an employee. Prior to the purchase, the CI had informed the agents he thought he could make a purchase and Agent Murray searched him before he approached Michelle. Determining he had no cocaine on his person, he was released to make the buy, which he did, on the premises. Michelle gave him a package of a substance, later determined to be cocaine, for which he paid with $30.00 given him previously by Murray. He then delivered the substance to Murray who in turn gave it to Akins for evaluation. It was later tested and determined to be cocaine. That same evening, Akins also saw three white males in a corner of the bar making what she considered a suspicious transaction. They were looking around and acting furtively. There was a big crowd in the bar that evening - at least 35 people. The lighting was good and Akins had no problem seeing. Mr. McKown was also in and out that evening. The two agents returned to the Cabin on June 27, 1994 at about 3:50 AM. When they arrived, they were met at the door by the security guard who asked them who they were, where they worked, and other similar questions. Akins got the impression that he did not want to let them in even though she had indicated that they had a bottle of scotch inside. While this was going on, Mr. Sparks came out and vouched for them and they were admitted. After paying the cover charge, Akins ordered a scotch. The drink was poured from her bottle by the bartender, Ms. Hart, but she noticed at the time that the bottle was almost empty even though she and Agent Murray had had few drinks from it. Akins paid for the drink with one of her chips. Because Akins did not drink the scotch, she was offered another drink by Ms. Hart and asked for a rum drink. The bottles of rum which she and Murray had brought in on May 10 and 17, 1994, had previously been used up, and she noted that there was no ownership label on the bottle from which her drink, and that for Murray, were poured. In any event, they paid for the drinks and when they tasted them, determined they were made from rum. That same morning, Akins saw a black male enter the bar without paying the cover charge. He bypassed the cashier and went toward the restrooms where he was approached by Mr. Strauss, to whom he passed something and got something in return. At this point, Akins was approximately 12 feet away, and though she could not see what was actually passed, she saw Strauss put what he had received into his pocket. Strauss then went back to the bar and the black male left. Shortly thereafter, Mr. McKown entered the bar. He seemed normal and walked around, talking with his customers. Akins left soon thereafter without taking her bottle of scotch. On July 27, 1994, Akins and Murray arrived at The Cabin at approximately 3:30 AM and were admitted by Mr. Bailey. This time they brought a bottle of rum. The scotch, which they had brought previously, was gone even though neither agent had had more than one or two drinks out of it. At this time, a female bartender asked her what she wanted and Akins ordered a peppermint schnapps. Without any questions regarding whose bottle it should be poured from, the bartender poured the requested drink from a bottle which bore a name that Akins could not see. It was not hers, however. She tasted the drink and found it was, in fact, peppermint schnapps. That same evening, Akins and Murray were approached at the bar by a white female, Ronnie, who asked them to split an 8-ball of cocaine. An 8-ball is one eighth of an ounce. No effort was made by Ronnie to hide her solicitation. In response, Akins said she didn't have any cocaine with her, but if Ronnie could find some, she, Akins, would go in with her. With that, Ronnie spoke with several customers but did not come back that evening. Mr. McKown was present but was not a participant in the conversation. When Akins left the bar that morning, she did not take the bottle of rum she brought in with her. The agents went back to The Cabin on August 9, 1994, at approximately 3:05 AM, and met three men, Beltran, Ramos and Encena, in the parking lot. As the five approached the door, they were met by Bailey and Sparks and were admitted, even though they did not have any alcohol with them. Once inside, Akins ordered from Ms. Hart a tequila drink which was poured from a bottle with no name on it. She had first asked for rum, but all that was available was spiced rum. When she tasted the drink, she found that it was tequila. Later on, she ordered a Kamikaze, which contained vodka, from Ms. Hart. Hart did not ask her whose bottle she should pour it from but poured from a bottle with no name tag on it. The drink was vodka. She paid for both drinks she ordered that evening with chips purchased at the door. During the morning, Akins spoke with Mr. Beltran, one of the men she had come in with, who was a patron at the bar. While they were still outside, however, before entering, Beltran had asked the two agents if they used cocaine. When they replied that they did, he said he would have to go inside to get it. When Akins later spoke with him at the bar, he told her to get her friend and that he had obtained the cocaine. Beltran and Ramos had the two agents follow them outside and to Beltran's car where the substance, later tested and identified as cocaine, was produced by Beltran and Ramos and given to the two agents. After Ramos ingested some of the substance, they went back inside and Akins put the substance she had received into her purse for later testing. After the parties went back inside to the bar, the men were ejected because they annoyed Ms. Hart. Mr. McKown was there at the time. After the men were ejected, Akins and Murray had a discussion with a patron named Guinta who said Akins had white stuff under her nose. Akins wiped her nose and denied the allegation. Guinta then asked Murray and Akins if they had any cocaine. Akins said she did not but would see if she could get some. She spoke with Mr. Sparks who said he had none available. All this was in a regular tone of voice, and all during this conversation, Mr. McKown was within three to five feet of them. Later on, there was a quite loud conversation between Guinta and another individual about cocaine. Afterwards, the parties went outside to Murray's car where Guinta gave them a substance later tested and identified as cocaine. Both agents went back to The Cabin on August 16, 1994 at approximately 3:30 AM. On this visit they had no alcohol with them. Mr. Bailey was on duty as the security guard and Strauss and Hart were the bartenders. Akins ordered a vodka Kamikaze from Hart. Later on, Hart asked her if she wanted another drink. When Akins agreed, Hart offered to make it with tequila instead of vodka. She made the drink from a bottle not marked with an owner's name, and when Akins tasted the drink, she found it was tequila. Murray also had two rum drinks which were poured from a bottle with no name on it. Akins spoke with Charles Bailey that evening at the bar. She asked him for some cocaine, and he said he could give her a "bump", (a small amount of cocaine), but could not sell her any. Akins and Murray went back to The Cabin on August 26, 1994. On that occasion, again, they had no alcohol with them. The bottle of scotch and the rum they had brought on two separate prior occasions was gone. They met three other patrons outside. Mr. Bailey, the security guard, let them in and after paying the cover charge, Akins spoke with Mr. Mille and thanked him for the cocaine she had received previously from Mr. Guinta. At first Mille seemed confused, but when she explained, he seemed to understand, but denied he had any more available. Akins had several drinks that evening. The first was made with tequila which she got from Ms. Hart. Neither Akins nor Murray had ever brought tequila to the bar. The tag on the bottle said "Killian's", but Akins did not know anyone by that name or where the bottle came from. Nonetheless, she paid for the drink, tasted it, and determined it was tequila. She also had a drink made with Amaretto that evening which she bought from Mr. Strauss. In this case, also, she was served a drink made with a beverage she had not brought in. Murray was served a rum drink from a bottle marked "hooters". She did not work for or know anybody from Hooters. Apparently, that same evening, Akins was looking quite tired as she sat at the bar. She was approached by Julio Pabone who said he could get her something that would wake her up. He then spoke with Mr. Leal, after which he came back to Akins and asked for money. She gave him $20.00 to add to what he already had, and he returned to Leal, gave him the money, and received a baggy with white powder in it in return. Returning to Akins, Pabone gave the baggy to her. The substance in the bag was later tested and identified as cocaine. Leal is an employee of the licensee. That same evening, Murray saw two women in the restroom use what appeared to her to be cocaine near the sink. On September 9, 1994, the agents again went to The Cabin and were admitted by Charles Bailey. After paying the cover charge, and while sitting at the bar, Akins saw a patron identified as Manuel pull out a wrapper containing a white substance and give it to another male who gave him money in return for it. At the time of this transaction, Mr. McKown was standing approximately five feet away. Later on, a male identified as Julio approached Akins and said he needed $30.00 for cocaine. She gave him the money and he went into the men's room followed by Leal and another individual. When Julio came out, he gave Akins a package with white powder in it which was subsequently tested and identified as cocaine. Mr. McKown was present in the bar at the time, but Akins cannot say whether he observed this transaction. On the evening of September 30, 1994, Sergeant Woodrow A. Ray, a longtime employee of the Division, was the supervisor of the raid conducted at The Cabin. When he arrived, he entered the establishment to insure that all other agents were in place. Sometime thereafter, Agent Miller, also a long time employee of the Division, arrived to serve an Emergency Order of Suspension on the licensee. Miller contacted Mr. McKown, read the Search Warrant and the Emergency Order of Suspension to him, and advised him of his rights against self-incrimination. While this was being done, Mr. McKown expressed surprise regarding the narcotics allegations but admitted he may have sold some alcohol. He stated this four times in different ways. He stated, "We may have sold some alcohol but no drugs"; "Maybe my people sold liquor, but I don't know about drugs"; "We sell a few drinks to help the guys, but no drugs"; and "If drugs were sold, I never knew it - maybe drinks but no drugs." Agent Miller helped with the ensuing search, in the course of which he went into the office to seize the license. He also searched the adjoining storage area in which he discovered a black bag. He asked McKown if the bag was his, which McKown denied. McKown indicated that only himself, Mr. Leal, and Charles Bailey had access to this room. Miller then went to get Bailey, who had been detained on the patio, advised him of his rights, and asked if the bag was his. Bailey acknowledged it was. Miller took Bailey back inside where he placed him in a chair under guard. Miller had Bailey identify the bag and when he did, Miller asked if there was anything in it he should know about. Bailey thereafter gave his permission to search the bag. Before the bag was opened, however, Miller had it taken outside to be sniffed by the narcotics detection dog on the scene who alerted on it. Miller then opened the bag, and inside, in an ammunition box, found drug paraphernalia and approximately 98.6 grams of a white powder which was subsequently tested and identified as cocaine. On or about February 4, 1993, Gene Leal, who was the manager of The Cabin, cashed a check there for Julio Pabone in the amount of $120.00 which was subsequently dishonored. When contacted about this, Pabone agreed to pay off the check in periodic cash payments, and in fact, did so, making a payment of $20.00 on August 26, 1994. The payment which Leal received on that date was not for cocaine but in repayment of a portion of the dishonored check. Company policy regarding illegal drugs is simple. If seen going on, the activity is to be stopped and the individual expelled from the facility forever. Mr. McKown recalls this as having happened at least six times in the year prior to closing. He claims he has no use for drugs and never has. He has a "no tolerance" policy for any drug activity he knew about, and his employees knew that. This policy is not in writing, however. Mr. McKown has not had any of his employees trained in drug identification, and even though he is aware of the state's responsible vendor program, neither he nor any of his employees have participated in it. Mr. Leal has worked for The Cabin for approximately eight years, as has Mr. Sparks. Both were instructed regarding the company's drug policy. Most of The Cabin employees have been on staff for between eight and fifteen years. Mr. McKown claims he would have periodic meetings with employees to inform them of his policy and to solicit reports of illegal activity. In addition to these instructions, employees are furnished with trespass warning slips which are to be issued when patrons are expelled for drug use. Two of these were introduced into evidence. Byron L. Bailey, one of the security guards, confirms this. Though usually stationed at the front door, he would make between four and five checks per night of the restrooms to be sure they were not being used for drug activity or for drinking. He did not, however, look to see what was going on in the lounge. Kathryn Katz, also formerly an employee of The Cabin, was instructed in the company's policy when hired. Not only was the use or transfer of drugs prohibited but so was the sale of alcohol. She was told that only those individuals who had a bottle with them or already inside could be admitted. It is possible that some people lied about this, but she had to take their word. If they said they had a bottle inside, she would admit them. She also checked the ladies' restroom periodically. The Cabin welcomes law enforcement officers as patrons. When deputies from the sheriff's office periodically come out and park in the lot of the neighboring Steak and Ale, they are always welcome. Approximately a year prior to the hearing, Mr. McKown was reportedly told that a van was in his lot from which drugs were being sold. He claims he called 911 and an arrest was made. However, over the fifteen years he's operated The Cabin, Mr. McKown claims there has never been an arrest made inside the club. Concerning the "admissions" he made to Agent Miller at the time of the service of the warrant and the Order of Suspension, Mr. McKown was reading a copy of the affidavit as Miller was reading it to him. As he read it, he was shocked to discover that his own people, whom he felt were family, were doing such things. He admits that perhaps his employees made a mistake in selling drinks. He does not condone it and he definitely does not condone any sales of illegal drugs. His admissions were not meant to specific dates or incidents but were rhetorical more than actual. He admitted his employees had the opportunity to sell unlawful drinks. He does not believe, in his heart, however, that they made any drug sales. He is wrong. No bottles of alcohol were seized by law enforcement officials at the time of the raid. Approximately two weeks after the closing, Mr. McKown conducted an inventory of the bottles on the premises. At that time, there were approximately one hundred fifty bottles, all of which, he insists, had patrons' names on them. Of that number, thirty to forty were establishment bottles. The balance were owned by individuals. Several prominent restaurant owners and managers who patronize The Cabin have known Mr. McKown for several years. None has ever observed any illegal drug activity inside the establishment and had they done so, would have left and not returned. Mr. Caballero, a former Tampa City Councilman, has patronized The Cabin since it was opened. Because of his public position, he was very sensitive to any possibility of illegal activity in his presence, and though he would be at the club once or twice a month, never saw any such conduct. All of these individuals claim to be friends of Mr. McKown. Dr. Poritz and Mr. Queen, a chiropractor and private investigator, respectively, have also patronized The Cabin periodically for several years. Neither has ever seen any illegal activity in there. Mr. Queen, while a member of the Tampa Police Department's Narcotics Division, would patronize the establishment periodically and was always comfortable there. Had he seen any illegal activity on the premises, he would taken appropriate action as a law enforcement officer and would have reported what he saw. A previous Administrative Complaint was filed against the Respondent in 1993 for violation of liquor sales laws. At that time, the Respondent and the Division entered into a Consent Agreement which called for Respondent to pay a civil penalty of $500.00 plus investigative costs of $14.50, and to provide a letter of corrective action. This letter, dated July 31, 1993, and signed by Mr. McKown and several of his employees, such as Mr. Bailey, Mr. Leal, Mr. Strauss and Ms. Hart, all of whom are referenced in the instant action, indicated the signatories had come up with a good system "to keep people without a bottle from coming in" which should "tighten it up and not break down as it did." From the evidence presented, it appears they were wrong and that their system did not work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's alcoholic beverage license No. 39-3729, Series 14BC, be revoked. RECOMMENDED this 31st day of May, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 31st day of May, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-5882 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: - 4. Accepted and incorporated herein. Accepted and incorporated herein, except that the evidence indicates the January 12, 1994 visit occurred prior to the commencement of the instant investigation. Accepted and incorporated herein. - 9. Accepted and in substance incorporated herein. 10. & 11. Accepted and in substance incorporated herein. 12. - 14. Accepted and in substance incorporated herein. 15. & 16. Accepted and in substance incorporated herein. 17. - 21. Accepted and in substance incorporated herein. 22. - 24. Accepted and in substance incorporated herein. 25. & 26. Accepted and in substance incorporated herein. 27. - 29. Accepted and in substance incorporated herein. 30. & 31. Accepted and in substance incorporated herein. 32. - 34. Accepted and in substance incorporated herein. - 37. Accepted and in substance incorporated herein. Accepted and incorporated herein. & 40. Accepted and incorporated herein. Accepted but not probative of any material issue. Accepted and incorporated herein. Accepted and incorporated herein. & 45. Accepted and incorporated herein. 46. & 47. Accepted. FOR THE RESPONDENT: None submitted. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 J. Thomas Wright, Esquire Suite A 2506 Tampa Bay Boulevard Tampa, Florida 33607 Linda Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 John J. Harris Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007
