Findings Of Fact Respondent holds alcoholic beverage license no. 56-526, Series 2-COP. The licensed premises is known as the "Green Frog" and is located at 1216 Santa Rosa Boulevard, Fort Walton Beach, Florida. The corporate officers of Respondent are Charles J. Schoener, Marlene D. Schoener, Mitch M. Smith and Charles M. Hall. On September 27, 1983, Investigator Robert Randle of the Gulf Breeze Police Department was approached by two individuals as he exited the licensed premises of the Green Frog and was asked if he wanted to purchase some marijuana. While discussing the marijuana purchase, Randle was approached by the Green Frog doorman who was working on the premises that night. The doorman, known as "Animal," inquired of Randle if he wanted to buy a small quantity of cocaine and displayed a small plastic baggie containing a white substance which he offered to sell for $30. After paying the doorman $30 for the small package represented to be cocaine, Randle submitted the contents for chemical analysis. Subsequent analysis revealed the presence of no controlled substance. On or about February 18, 1984, Officer Randle again entered the licensed premises of the Green Frog in an undercover capacity. While on the licensed premises, Randle contacted a dancer known as "Angel." Randle asked Angel where he could obtain some narcotics and she directed him to her apartment. Randle went to the apartment but was unable to purchase any drugs. He returned to the Green Frog and told Angel that he had been unsuccessful. She left Randle's presence but later delivered a partial marijuana cigarette to him on the licensed premises. Subsequent analysis of the partial cigarette showed the contents to be cannabis/marijuana. On or about February 28, 1984, Officer Randle again entered the licensed premises in an undercover capacity. On this date, he made contact with a dancer known as "Sugar" and asked her if he could obtain some marijuana or cocaine. Sugar directed Randle to the dancer Angel's apartment where he was told he could purchase a baggie of marijuana. Upon reaching the apartment Officer Randle informed Angel that Sugar had told him he could buy a bag of marijuana from her. At this time Angel sold a baggie of marijuana to Officer Randle for $25. Subsequent analysis of the baggie's contents revealed that it contained cannabis/marijuana. On or about March 6, 1984, Officer Randle returned to the licensed premises as part of this investigation. Upon entering, Randle engaged the dancer Sugar in conversation and advised her he was looking for narcotics. Shortly thereafter, Sugar told Randle he could purchase one-quarter gram of cocaine for $25. Later, she informed him that she was obtaining the cocaine from another dancer who would only sell half-gram amounts for $50. Randle then gave Sugar $50 and observed Sugar leave his table, speak to an unidentified dancer and return to his table. Sugar then handed Randle a plastic baggie containing a white powdery substance. Subsequent analysis of the contents of the bag showed that it contained cocaine. On or about March 17, 1984, Officer Randle again entered the licensed premises as part of the ongoing investigation. Randle made contact with the dancer "Kelly" and the dancer "Lisa." Randle told Kelly that he had "scored" some good cocaine previously from the dancer Sugar and that he was looking for her. In response to this statement, Kelly informed Randle that she had supplied Sugar with the cocaine and that she could sell him a half-gram of cocaine for $50 that evening. Later, Randle was approached by the dancer Lisa who asked him if he was holding some cocaine. Randle informed her that he was looking for cocaine and asked her if she could sell him some. Lisa also told him that she was waiting for her supplier and that she would sell him a $50 package when the supplier arrived. While waiting for the supplier to arrive on the premises, Randle was again approached by Lisa who gave him the phone number of her supplier and suggested he call the supplier and tell him to come to the licensed premises with the cocaine. Later, a male patron arrived at the premises and was observed talking to Lisa by Randle. Shortly thereafter, both Lisa and Kelly delivered small plastic baggies containing white substances to Randle who was seated at a table. Both deliveries were made inside the lounge in plain view. Subsequent analysis confirmed that both packages contained cocaine. Beginning around late February 1984, Mr. Tim Forehand regularly sold and supplied cocaine on the licensed premises. His sales were generally in one- half gram packages and the dollar amount of such sales on the licensed premises ranged from $200 to $1800 per night. Forehand supplied the cocaine on March 17, 1984, to the dancers Lisa and Kelly who then sold this substance to Officer Randle. Forehand also sold cocaine six or eight times to a corporate officer's son, David Schoener, who worked as a bartender on the licensed premises. On one occasion, Charles Schoener barred Forehand from the licensed premises for dealing drugs. He was, however, allowed back onto the premises within one week, The testimony of Lisa Dixon, Melissa Crawford (a/k/a Sugar) and Tim Forehand indicated that drug use and sales in the licensed premises were open and extensive. Sugar testified that see had used cocaine with Charles Hall, an officer-owner, on the licensed premises. Similarly, Lisa Dixon testified that she was in the presence of Charles Schoener on an occasion when he used cocaine in the licensed premises. In their testimony, Charles Schoener and Charles Hall denied using drugs on the licensed premises. Their testimony and that of a third owner- manager, Mitch Smith, a bartender, Jim Ellis, and a dancer, Evangeline Potts, indicated that drug use and sales were rarely observed and that action was taken to bar customers or warn employees when such incidents occurred. The documentary evidence and testimony of both Petitioner's and Respondent's witnesses established that Respondent had a stated policy against drug use or possession on the premises. Employee rules to this effect had been adopted and posted for over a year and periodic employee meetings were held at which the no drug policy was discussed. However, enforcement was not vigorous as indicated by the fact that Forehand was allowed to return to the Green Frog even though he had earlier been barred for drug activity. Further, Charles Schoener, the corporation president, did not discharge the dancer Kelly, even when he suspected her of illegal drug activity on the licensed premises. Much of the testimony of the witnesses with the exception of Officer Randle and Officer Kiker (who was not directly involved), was self-serving and lacking in credibility. Forehand, Dixon and Crawford have all been arrested and charged with criminal offenses. They were advised that their cooperation in this proceeding could favorably effect their sentences if convicted. Respondent's witnesses are owners and employees of the licensed premises, and thus have a stake in preserving the beverage license. In addition to their denials, the purported use of cocaine by Charles Schoener and Charles Hall on the licensed premises in the presence of their employees is inconsistent with their efforts to prohibit or at least discourage drug use. Further, the testimony of Officer Randle indicates that drug sales and use were not "wide open" as claimed by Petitioner's other witnesses. Randle visited the licensed premises in an undercover capacity on numerous occasions beginning September 27, 1983, but was not able to obtain a delivery of a controlled substance until February 18, 1984.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending Respondent's alcoholic beverage license for a period of 90 days, including the emergency suspension now in effect. DONE and ENTERED this 17th day of April, 1984, 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 17th day of April, 1984.
The Issue The issue in this case is whether Respondent failed to comply with the requirements of its license under the beverage law. Specifically, Respondent purportedly violated the actions set forth in two counts, as follows: Count I--Respondent failed to "provide the required service area, seating and equipment to serve 200 persons full course meals at tables at one time as required by its license. [S]ections 561.20(2)(A)(4), within Section 561.29(1)(A), Florida Statutes"; and Count II--Respondent failed to "provide at least 4,000 square feet of area dedicated to the operation of the restaurant as required by its license. [S]ections 561.20(2)(A)(4), within Section 561.29(1)(A), Florida Statutes." Respondent has also raised the issue of whether Petitioner should be estopped from enforcement actions concerning the alleged violations.
Findings Of Fact The Division is the state agency responsible for, inter alia, issuing and monitoring licenses to businesses within the state relating to the sale of alcoholic beverages. Respondent is the holder of an alcoholic beverage license, No. BEV46-261 Series 4-COP/SR (the "License"). An SR, or Special Restaurant, license is a unique kind of license which was issued by the Division prior to the establishment of quota licenses. Holders of SR licenses are allowed to sell beer, wine and liquor, package sales and sales by the drink on the premises. Quota licenses are issued based on a population ratio, i.e., no more than one license per 7,500 people in a given geographic area may exist. When Respondent obtained its SR license in 1979 (by way of transfer from the original owner of that license), the existing statutes mandated that the License be housed in a building of not less than 4,000 square feet with room in the building to seat at least 200 people at any one time. The statutes also required that food be served at all times the establishment was open. In 1979, when Respondent filed an application seeking to obtain the transfer of the SR license that had been issued in 1957, the application included an Affidavit from Marianne Gunn agreeing to a specific location (2704 Anderson Avenue, Fort Myers, Florida)1 for the business, which was to be known as the Stardust Lounge. The Affidavit affirmed Marianne Gunn's agreement to maintain the premises with the necessary equipment and supplies to seat 200 people at any one time. The Affidavit affirmed that the building housing Stardust Lounge would be at least 4,000 square feet in size. The License was then transferred to Respondent by the Division. Approximately one year after receiving the License and commencing operations, the Stardust Lounge burned down. Some undisclosed portion of the building remained, but no business could be operated on the site. It would have been difficult to rebuild the building under the then-current building codes. Further, the City of Fort Myers expressed its opposition to the existence of an alcoholic beverage establishment at that site. Some time after the fire, Respondent asked the Division to place the License in an inactive status (also known as placing a license in escrow). The request from Respondent asked that the License be placed in escrow for up to eight months. Respondent represented that it was in negotiation with the City of Fort Myers concerning a land swap to settle certain claims Respondent had against the city. Respondent estimated the negotiations would go on for approximately two months. Respondent advised the Division that if negotiations were successful, it would allow the License to be cancelled upon transfer of the premises to the city. If the negotiations were not successful, Respondent estimated it would need at least six months to sell the property at a private sale. It was Respondent's intent that the License be "taken care of" along with the land deal. "That's what that was all about," Fox testified at final hearing. Based upon Respondent's request, the Division apparently placed the License in escrow. There was no documentation presented at final hearing to substantiate this fact. However, the Division sent Respondent a bill each year to renew the License despite there being no physical site for operating a business by the licensee. Respondent dutifully paid the renewal fee each year. Eighteen years after the License was placed in escrow, the State of Florida commenced condemnation proceedings relating to a portion of the premises where the Stardust Lounge had formerly existed.2 During this nearly two-decade hiatus, Respondent continued to renew the License each year upon notice from the Division. Respondent's counsel sent a letter to the Division dated June 27, 2000, which said in pertinent part: We send you this letter at the request of our client, Mrs. Fox. . . . She has a liquor license in escrow with the Department. Due to the condemnation taking, she will not be able to utilize the license at this location and she has agreed that if this license can be moved to another location, it would not be an issue in the condemnation case. The letter did not address the issue of Respondent's prior representation that the License would be cancelled within eight months of its May 21, 1982, letter, some 18 years earlier. The Division responded to Respondent's counsel in a letter dated the very next day which stated in pertinent part: I am responding to the request of you and the licensee wanting to know if the liquor license that is held in the name of Marianne Gunn, DBA Stardust Lounge is movable. In the case of the property being taken by the state, the license may be moved one time and only one time. Providing that we have copies of all paperwork involved with the property condemnation taking. This license is not a moveable license unless in a case like this. The only thing that the licensee needs to understand is that it is changing location only one time. The Division's letter did not mention the escrow status of the License, either. The inartfully worded request and nebulous response added to the confusion concerning the status of the License. There is no evidence indicating whether any information concerning the condemnation was ever provided to the Division. Respondent could not say at final hearing when the condemnation actually occurred, how much land was taken, or how much was paid for the land. The License apparently remained in escrow at that time pending a move to some other location. Marianne Gunn Fox testified that the reason for her negotiations with the City of Fort Myers in 1982 was partly because the city did not want the bar located at the site where it had burned down. She testified that she had received insurance proceeds from the fire and intended to rebuild the lounge, but the city objected. That was the only testimony given as to why the lounge was not rebuilt during the 18 years it remained in escrow. Glen Fox testified that the original site of the Stardust Lounge would not be acceptable for rebuilding the structure after the fire due to certain building code issues. Both Mr. and Mrs. Fox testified that there was insufficient land available to build on site after the property condemnation taking. Fox testified that she owned three lots at the corner of Martin Luther King Boulevard and Cranford Avenue. Those lots were 50-feet-wide by 150-feet-deep (for a presumed total lot size of 150-feet-wide by 150-feet-deep). Fox does not know the size of the lots after the condemnation proceeding. It has long been the policy of the Division, pursuant to its interpretations of the Beverage Law set forth in statute, that SR licenses could not be moved from their original location. In 2005 or 2006, a licensee who was operating a business in American Beach filed a lawsuit against the Division seeking to move his SR license to a different location. As a result of the lawsuit, the Division changed its existing policy to allow for such a change. The new policy was posted on the Division's website for review by SR license holders. There is no evidence that SR license holders were notified about the change in policy by any other means. Respondent does not remember receiving any notice whatsoever regarding the change in policy. Within four to six months, and as a result of further legal research by Division attorneys, the Division once again altered its policy concerning the transfer of SR licenses. The newly-revised policy established the current Division position, i.e., that no SR license could be moved for any reason. Further, the policy states that all licensed premises must be in continuous operation or else the license would be forfeited. Again, the Division posted the new policy on its website and notified all SR license holders by way of letters to their establishments (or, in the case of Respondent, to the last known address). It is unclear from the record whether the letter was ever sent to or received by Respondent, although the Division obviously had Respondent's address because it sent renewal notices there each year. Some time after the change in policy, the Division determined that Respondent's license must be terminated or revoked. At that time, there were no premises associated with the License. The last time the License was in operation was 1979 or 1980, some 28 years prior to the Administrative Action being filed. The official address of the premises on the License during each of the renewal periods since 1980 had been "Escrow." That is, there was no site address associated with the License. There was obviously some address associated with the License, however, since Fox received annual billing statements from the Division. In November 2007, the Division issued an Administrative Action against Respondent concerning the License. The Administrative Action alleged that Respondent had not complied with the requirements of the License, i.e., size of premises and on-going operations. The Division indicated that it would sanction the License, including, but not limited to, revocation. Respondent does not dispute the fact that it is not complying with the requirements for an active license, but maintains that its escrowed license is exempt from those requirements. The License, despite being inactive for 28 years, is still apparently valid at this point in time (based on the Division's acceptance of Respondent's renewal payments each year). The License may have some monetary value, but there was no competent, substantial evidence presented at final hearing as to what the value might actually be. Marianne Gunn Fox testified that she did not know how much the License was worth, only that "nothing is worth as much as it used to be." Fox cannot remember how much she paid for the License when it was transferred to her. She cannot remember how much she asked for the License when she offered it for sale. She cannot remember how much was offered for the License as part of the condemnation sale. Fox does know that she paid an annual fee each year for renewal of the License. She does not know what the fee was each year, but "I paid whatever the state told me was due." (The Division testified that the annual fee was $1,820.00. Presuming 28 years of payments, the total paid to-date would be approximately $50,960.) When suggested to Fox by her counsel that the License was worth $300,000, she agreed with that amount, but could not substantiate why that amount was valid. Fox testified that she would like a "reasonable time" to market the License for sale. She did not express what a reasonable time might be, but has not been able (or willing) to sell the License for over 28 years. Respondent put the License "out for feelers" three or four years ago, but did not include an asking price for the License. About seven months ago, someone told Fox that the License was worth approximately $326,000, but there is no support for that estimate. Patrick Roberts, former law enforcement major with the Division, opined that he would have handled Respondent's case differently had it come across his desk. He opined that the requirement for 4,000 square feet and seating for 200 people should only apply to an existing business, not one in escrow. Roberts agreed that only quota licenses are allowed escrow status by statute. Roberts did not express any opinion as to the requirement that a business be on-going at all times. Roberts agreed that an SR license should not be placed in escrow, but said he'd try to negotiate a settlement, rather than file an Administrative Action. He did concur that an Administrative Action might be necessary if all else failed. Roberts did not opine that an Administrative Action was improper, only that it wasn't his first choice of action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, revoking Respondent, Fox Marianne Gunn, d/b/a Stardust Lounge's, License No. BEV46-261 Series 4-COP/SR. DONE AND ENTERED this 11th day of June, 2010, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 11th day of June, 2010.
The Issue The issues to be resolved in this proceeding are whether the Respondent has committed violations of Florida statutes pertaining to alcoholic beverage licenses, and, if so, what penalty should be imposed. The Petitioner contends that Respondent violated the provisions of Sections 561.29(1)(a) and (c) by condoning and/or negligently overlooking trafficking in illegal, controlled substances on his licensed premises. The Respondent contends that he took all reasonable steps to prevent any unlawful activities from occurring on his licensed premises, and that to the extent any unlawful activities were conducted on his licensed premises, he neither condoned nor negligently overlooked them.
Findings Of Fact Robert Pauley is the holder of Alcoholic Beverage License No. 60-1229, Series 2-COP. The licensed premises is located at 4458 Purdy Lane, West Palm Beach, Florida, and is operated under the name "The Treehouse Saloon". The Treehouse Saloon is a "topless bar". It offers so-called adult entertainment to members of the public as well as beer and wine for consumption on the premises. The entertainment consists of women who dance nude or semi- nude. The premises includes numerous tables and a bar where patrons sit, pool tables, restrooms, an office where the Respondent conducted business, a disc jockey's booth, and a dance floor where the women performed. The Treehouse Saloon has been closed since June 8, 1983, when the Petitioner issued an emergency suspension order and notice to show cause. During May and June, 1983, John T. Slavin, an agent employed with the Palm Beach County Sheriff's Department, was acting in an undercover capacity. He took on the appearance and wore clothes compatible with the role of a member of a motorcycle gang. He had been directed to frequent topless lounges in Palm Beach County and to work undercover to determine if illegal drug activities or prostitution were occurring. On May 5, 1983, Slavin entered the Treehouse Saloon. During the evening, he made friends with "Duane" who was working in the saloon as a disc jockey. Slavin asked Duane about the prospects of purchasing cocaine. Duane told Slavin that that could be arranged and that it would cost $60 for three- fourths of a gram. Slavin gave Duane $60. Duane left the disc jockey area and approached one of the dancers whose name was "Barbara." Duane then returned to Slavin and advised him that the "product" was on the way. A short time later, Barbara approached Duane, then Duane brought a matchbox to Slavin. The matchbox contained a transparent plastic bag with white powder in it. After he left the bar, Slavin 7 field-tested the "product" then turned it over to a chemist employed with the Sheriff's Department. The "product" was cocaine. The sale was made at approximately 2:00 a.m. On or about May 12, 1983, Slavin entered the Treehouse lounge at approximately 11:45 p.m. He saw Duane and asked whether Duane was "playing oldies." This was a signal meaning that Slavin wished to purchase more cocaine. Duane said that he was "playing oldies nightly" and asked Slavin how much he wanted. Slavin handed Duane $60. A short time later, Duane delivered a cigarette pack to Slavin and told Slavin that a cigarette was missing. Slavin found two transparent bags containing a white powder inside the cigarette pack. Slavin later field-tested the contents and delivered them to the chemist. The product was cocaine. On or about May 13, 1983, Slavin returned to the Treehouse Saloon at approximately 11:30 p.m. Shortly after mid- night on May 14, he approached Duane's booth and asked if they could do business. Duane said "yes," but that it would take a little longer for the delivery due to a special event (a "banana eating contest") that was being presented. Slavin gave Duane $60 which Duane put in his pocket. Later that morning, Duane put a pack of matches in Slavin's pocket. Slavin went to the men's room and found two plastic bags with a white powder inside. He later field-tested the contents then delivered them to the chemist. The product was cocaine. On or about May 18, 1983, Slavin returned to the Treehouse Saloon at approximately 10:30 p.m. He saw Duane at the bar and asked him why he was not in the disc jockey's booth. Duane indicated that he was squabbling with the management and would be taking some time off. Duane asked Slavin if he was interested in "some white" which is a "street name" for cocaine. Slavin asked if Duane could get him a gram. Duane said that he could. Slavin gave Duane $80. Later, Duane handed Slavin an aspirin tin. There were two small bags of white powder inside the tin. Slavin later field tested the contents then delivered them to a chemist. The product was cocaine. On this occasion, Duane said that he would be away for a while. Slavin asked Duane who could supply "coke" (cocaine) in Duane's absence. Duane named three dancers: "Linda," "Doree," and "Barbara." Although Duane was not in the disc jockey's booth on that occasion, he did appear to be directing other employees, including dancers, in their activities. On or about May 19, 1983, Slavin returned to the Treehouse Saloon at approximately 1:00 a.m. He talked to a dancer called "Doree." Doree's actual name is Diana Donnell. Since then, she has been arrested. Slavin asked Doree if she could get him some "coke." She told Slavin that it would cost $40 for a half gram. Slavin asked if he could buy a full gram, and she said "yes." Doree then performed as a dancer, after which Slavin gave her $80. At that time, he was standing right next to the dance floor. A short time later, Doree returned with two small plastic bags which contained a white powder. Later, Slavin field-tested the powder and turned it over to the chemist. The product was cocaine. On or about May 25, 1983, Slavin returned to the Treehouse Saloon shortly after noon. He sat at the bar next to a dancer whose name was "Samantha." Slavin asked her where Doree was, and was told that Doree was not working there anymore. Slavin asked Samantha if she could help him buy a half gram of cocaine. She said "yes" and that it would cost $40. Slavin placed $40 on the bar between them. She placed a cigarette pack on the bar and told him that there was a half gram inside. She took the money. The witness examined the contents of the cigarette pack, removed a plastic bag which contained a white substance, and returned the cigarettes to Samantha. Samantha told Slavin that he could buy from her in the future. Later, Slavin field-tested the product and delivered it to the chemist. The product was cocaine. Later in the day on May 25, 1983, at approximately 7:30 p.m., Slavin returned to the Treehouse Saloon. He saw Samantha and asked her if he could buy another half gram. She told him it would cost $40. Slavin gave her $40 and she went into the dressing room that was on the premises. When she came out, she gave him a transparent package that had white powder inside. Later, Slavin field-tested the contents and delivered it to the chemist. The product was cocaine. On May 31, 1983, at approximately 10:45 p.m. Slavin returned to the Treehouse Saloon. He talked to a dancer known as "Mama She She." Slavin asked if Samantha was available and was told that she was not there. Maid She She, whose actual name is Michelle West, said that she had "done a line of coke" earlier which was "dirty," but had given her a "good high." She told Slavin that a half gram would cost $40. Shortly after midnight, Slavin gave her $40. He did not receive anything from Mama She She until approximately 3:50 a.m. On several occasions in the interim, Slavin talked to Mama She She about it, but she indicated she was having some difficulty obtaining the cocaine. Eventually, she gave him a clear bag that had powder inside. She told Slavin that she would be working the next day (June 2) from 11:00 a.m. until 7:00 p.m. and that the witness could buy more then. Later, Slavin field-tested the contents of the bag and delivered them to the chemist. The product was cocaine. On or about June 2, 1983, Slavin returned to the Treehouse Saloon at approximately 3:30 p.m. He saw Mama She She and talked to her. She asked him if he was interested in "a half or a whole." He said "A half." She returned a bit later and said that there was nothing there then, but that if he would wait, she could probably get it. Later, she told Slavin that she was a bit reluctant to sell to him because he had not given her a "line" from his purchases. Slavin told Mama She She that he was buying it for friend to whom he owed money. At approximately 7:30 p.m., Mama She She still had not delivered anything to Slavin. She asked if he could drive her home, which he agreed to do. As they were leaving, another dancer, "Barbie," came in. Barbie asked Slavin if he recognized her. She told him that he had gotten cocaine from her through Duane in the past. Slavin asked if he could get a half gram, and Barbie said "yes." Slavin then took Mama She She home and returned at approximately 8:30 p.m. Barbie gave him a plastic bag with white powder inside. Slavin later field- tested the product and delivered it to the chemist. The product was cocaine. All of the women that Slavin dealt with at the Treehouse Saloon were dancers. They were either scantily clad or nude. They would dance for three songs on the dance floor, and customers would put money in their garter belts. A bartender and a bouncer were also present at the saloon. From time to time, a bartender or the disc jockey would tell a dancer it was her turn. The Respondent had hired the dancers as "independent contractors." Whatever their status at the Treehouse Saloon, the dancers were subject to direction from the Respondent or his managers. A list of rules for dancers provided, among other things, that no hard liquor or drugs were allowed on the premises and that the first offense would result in termination. The dancers were required to sign an "independent contractor agreement." The contract provided that dancers would not be considered an agent or employee of the saloon for any purpose. Despite these provisions, the dancers were clearly subject to direction by the bartender or disc jockey at the saloon. In addition, they were required to wait on tables, to circulate among customers, to work their complete shifts, to tip the bartender, and to perform other functions. They were clearly subject to the supervision and control of the Respondent, the bartender, or the disc jockey. When Slavin made the cocaine purchases described above, he communicated with Duane or the dancers in a normal conversational tone. A normal conversational tone in the Treehouse Saloon would he somewhat loud because loud music was constantly playing. The transactions were made in a somewhat secretive manner. A person who was carefully observing or monitoring the premises, however, would necessarily have been suspicious of Slavin, Duane, and the dancers. The Respondent did post rules in various locations of the Treehouse Saloon which provided that illicit drugs were not allowed. His dancers' rules provided to the same effect. Other than that, it does not appear that the Respondent took any steps to properly monitor his premises to assure that such activities were not occurring. Given the number of transactions and the nature of the transactions undertaken by Slavin, the transactions would have been observed by a manager who was reasonably observing and monitoring the premises. There is no evidence from which it could be concluded that the Respondent was directly involved in any drug trafficking or that he condoned it. The evidence does, however, establish that he was negligent in not properly monitoring the licensed premises to assure that illegal activities were not being undertaken there.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered by the Division of Alcoholic Beverages and Tobacco, Department of Business Regulation, finding the Respondent guilty of the violations alleged in the notice to show cause and suspending his beverage license for a period of two years. RECOMMENDED this 14 day of July, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 14th day of July, 1983. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Albert R. Wilber, Jr., Esquire 315 Third Street, Suite 301 West Palm Beach, Florida 33401 Mr. Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the regulatory agency charged with enforcing beverage and cigarette tax laws. As part of its duties, Petitioner investigate the sales of cigarettes to minors (under age persons). Respondent, Workman, Inc., d/b/a Coastal Mart, is the holder of alcoholic beverage license number 39-02924, series 1-APS, and retail tobacco products permit number 39-04440. Respondent's licensed premises is located at 9931 North Florida Avenue, Tampa, Florida. Raymond Daoud is Respondent's sole stockholder and is a corporate officer. Pursuant to an anonymous complaint received by Petitioner during the spring of 1993, Special Agent Joseph A. Maggio directed investigative aide Kimberly Siebel to enter the premises of Coastal Mart and attempt to purchase cigarettes. Petitioner, during times material, utilized the services of investigative aides Kimberly Siebel and Stephanie Haley, whose birth dates are September 20, 1975, and January 24, 1978, respectively. Both aides were under the age of 18 during the spring of 1993. Investigative aides Siebel and Haley, are trained by Petitioner, when conducting investigations for the purchase of either beer or cigarettes, to enter premises and to truthfully tell their age when requested. They also provide proper identification to establish their age if requested to do so by the clerk when they are attempting to purchase beer or cigarettes. This procedure was used in this case by investigative aides Siebel and Haley when they purchased cigarettes from Respondent on May 20 and July 8, 1993. When investigative aide Siebel purchased cigarettes from Respondent on May 20, 1993, she had previously worked as an undercover operative for Petitioner approximately 30 times. On May 20, 1993, Siebel entered the premises of Respondent with Special Agent Maggio at approximately 9:25 p.m. Investigative aide Siebel approached the counter and ordered a pack of Marlboro Light cigarettes from the clerk who was later identified as Angela Schulte, an employee of Respondent. Ms. Siebel received a pack of Marlboro Light cigarettes as requested from Schulte without being asked for identification. She paid for the cigarettes and exited the store. Special Agent Maggio observed the purchase of cigarettes by Siebel from his position next in line behind her. When Siebel purchased the cigarettes from Schulte on May 20, 1993, she and Special Agent Maggio observed Respondent, Daoud, behind the counter when they entered the licensed premises. When Siebel and Maggio exited the premises, Siebel gave the cigarettes to Maggio. Maggio placed the cigarettes in a plastic bag and Siebel signed them. Maggio then sealed and placed them in the locked trunk of his vehicle until they were deposited in Petitioner's evidence file the following day. Approximately ten minutes after Siebel purchased the cigarettes and turned them over to Maggio, he reentered the premises, identified himself to Schulte, and advised her that she was under arrest for the sale of cigarettes to an under age person. Daoud was still inside the premises near the front counter. Special Agent Fisher, who is no longer employed by Petitioner, accompanied Special Agent Maggio inside the premises. Fisher completed a letter of warning and Daoud signed the warning. Fisher gave Daoud a copy of the warning as they left. On July 8, 1993, Maggio again directed investigative aide Stephanie Haley to enter Respondent's premises to attempt to purchase cigarettes. On July 8, 1993, investigative aide Haley was fifteen years old. Haley had on her person a Florida Drivers License showing her birthday to be January 24, 1978. On July 8, 1993, investigative aide Haley had previously acted as an undercover operative for Petitioner approximately 20 times. On July 8, 1993, Haley entered the premises of Respondent and approached the counter. She ordered a pack of Marlboro Light cigarettes from the clerk, who was later identified as Raymond Daoud. Daoud asked Haley for identification whereupon she presented her Florida Drivers License. Daoud examined the license and completed the transaction. Haley exited the premises and turned over the cigarettes purchased to Special Agent Maggio. Special Agents Maggio and Bock witnessed the transaction from a vantage point outside the premises. Maggio and Special Agent Bock then entered the premises of Coastal Mart and Bock identified himself and placed Daoud under arrest for the sale of cigarettes to an underage person. Daoud complained that he had been "setup" and that he remembered the girl, "thought she was young," and asked her for identification. Daoud observed Haley's license and thought that it had eighteen years of age on it. Special Agent Bock reminded Daoud that the license did not have an age on it. Daoud insisted that he thought the license had the date 1979 which would, of course, make investigative aide Haley, fourteen when she was, in fact, fifteen at the time. Petitioner has a policy of not letting undercover operatives reenter premises to allow licensed vendors to review items from undercover operatives such as their identification cards, etc., so as not to jeopardize them in future operations and for their own personal safety. Petitioner explained to Respondent that he could examine the identifying card (license) either during the hearing or in court. Respondent suspended Schulte for one week without pay for selling cigarettes to a minor. Respondent also verbally warned Schulte for selling cigarettes to a minor and reminded her that it was against company policy to do so. Schulte recalled that Respondent was "extremely mad" about the incident. Respondent would not knowingly sell cigarettes or alcoholic beverages to a minor. Respondent has operated his business for approximately three years, and this is the first infraction that he has received for the sale of beer or cigarettes to a minor.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent's alcoholic beverage license number 39-02924, series #1-APS, be assessed a $500.00 civil penalty for each count for a total civil penalty of $1,000.00. 1/ RECOMMENDED in Tallahassee, Leon County, Florida, this 4th day of April, 1994. JAMES E. BRADWELL 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 4th day of April, 1994.
Findings Of Fact The Respondent, Cornelia T Brown, doing business as the Oasis Restaurant Bar and Lounge, is the holder of beverage license No. 45-356, Series 2-COP. This license allows the consumption of alcoholic beverages on the premises, located on Douglas Road, Groveland, Florida. The Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida which has its responsibility the licensure and regulation of beverage license holders in the State of Florida. On June 12, 1980, pursuant to a search warrant, Lake County Sheriff and Groveland Police officials accompanied by Petitioner's Beverage Officer, conducted a search of the licensed premises. Respondent was present throughout the investigation. Among the items seized as suspected controlled substances were seven plastic baggies and eight small manila envelopes containing a total of 52.1 grams of cannabis. Currency in the amount of $2,273,67 was also seized. The cannabis and currency were contained in a purse belonging to Respondent. The purse was discovered in the kitchen of the licensed premises, an area not open to bar/restaurant patrons or other members of the public.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violations as alleged in Counts 1, 2 and 4. It is further RECOMMENDED that County 3, which duplicates County 2, and Count 5, be DISMISSED. It is further RECOMMENDED that Respondent's License No. 45-356 be REVOKED. DONE AND ENTERED this 30th day of September 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September 1981. COPIES FURNISHED: Cornelia T. Brown Route 1, Box 350-7 Groveland, Florida 32736 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact During times material hereto, Respondent, Boyd's Service, Inc., was under the control and operation of its owner, Leslie Boyd. Respondent holds Alcoholic Beverage license no. 62-03664, series 2-APS, for a premises known as Boyds Service located at 1500 22nd Street South in St. Petersburg, Pinellas County, Florida. Commencing on or about January 12, 1990, Petitioner, the Division of Alcoholic Beverages and Tobacco, engaged in a cooperative effort with the St. Petersburg Police Department by conducting a "sting" investigation of eight businesses in the south St. Petersburg area to determine if the owners of such businesses were trafficking in stolen property. Investigators Craig Parsons, Ira McQueen, Priscilla Turner, and David Henry, all employees of Petitioner and Detectives Glen Henry, Luke Williams, Johnny Harris, Tom Kewin, and Rod Adams of the St. Petersburg Police Department participated in the sting investigation. On or about January 12, 1990, Detective Harris, while monitored by Investigator Parsons and Detective Henry, entered Respondent's licensed premises in an undercover capacity as part of the sting investigation and Detective Harris discussed with Respondent his desire to purchase property that Detective Harris asserted was stolen, to wit, several cartons of "Kool Kings" cigarettes. Respondent expressed a willingness to buy stolen property from Detective Harris but that he needed Newport cigarettes. Detective Harris indicated to Respondent that he would return on a later date with stolen Newport cigarettes for Respondent to purchase. On or about January 19, 1990, Detective Harris, while monitored by investigator Parsons and Detective Williams, drove to Respondent's premises accompanied by Investigators McQueen and Turner as part of the sting investigation. Detective Harris parked in front of Respondent's premises and exited his vehicle. Detective Harris approached Respondent and related "I have five cartons of Newport 100's for you which I stole the other day". Respondent asked Detective Harris where the merchandise was and inquired if he was "wired". Detective Harris exited the premises, returned to his vehicle, removed the cigarettes that he asserted were stolen and reentered Respondent's business. Respondent handed Detective Harris $30.00 in exchange for the cigarettes. On or about January 24, 1990, Detectives Harris and Williams, while monitored by Investigator Parsons, Detectives Henry and Kewin, reentered Respondent's licensed premises as part of the sting investigation. While there, Detective Harris introduced Respondent to Detective Williams identifying him as "Pete" and further identifying him as his buddy who works at Pace Warehouse who was stealing the property which Detective Harris was selling to Respondent. Detective Harris told Respondent that he had in his vehicle which was parked in front of Respondent's business, five cartons of Kool King cigarettes and five cases of Colt 45 beer which he asserted to be stolen. Respondent asked to see the merchandise whereupon they exited the licensed premises and the detectives opened the trunk of their vehicle to display the "stolen" merchandise. Respondent agreed to "buy it all" and directed the detectives to drive their vehicle around to the back of his premises into an attached garage area. A discussion ensued from which Respondent admitted that he had previously been arrested of dealing in stolen property and if they (the detectives) were "setting him up" he would kill them. Respondent directed the detectives to unload the property from their vehicle into the garage area. While doing so, Respondent walked to the front of the store and returned with the money in exchange for the merchandise. On or about January 29, 1990, Detective Williams, while monitored by Detectives Henry and Kewin, reentered Respondent's licensed premises as part of the ongoing sting investigation. While there, Detective Williams approached Respondent and related "I kept you in mind" to which Respondent related "I think I know what you're talking about". Detective Williams then stated to Respondent "I stole some more stuff from Pace". Respondent then asked to see the merchandise whereupon the Detectives told Respondent that they had a "trunk full of stuff, they don't even know it's gone yet". Detective Williams related having about nine cases of beer and some cigarettes which he agreed to let Respondent purchased for $60.00. Respondent agreed to make the purchase whereupon Detective Williams and Respondent exited the licensed premises and Detective Williams opened the trunk of his vehicle to display the merchandise. Respondent directed Detective Williams to bring the beer into the licensed premises and Respondent removed two cartons of Newport 100's and two cartons of Kool cigarettes which he (Respondent) carried into the licensed premises. Upon reentering the licensed premises, Detective Harris and Respondent negotiated a price for the merchandise. Respondent tendered Detective Williams $36.00 from the cash register in exchange for the "stolen" merchandise. Before leaving, Detective Williams advised Respondent that he would have to slack off from stealing from Pace because he had taken quite a bit over the past week. Respondent requested that Detective Williams bring him some cigarettes and some more Old Milwaukee beer concluding that he could not buy what he could not sell and that he still had some Colt 45 left from his last purchase. On or about January 30, 1990 Officer Adams entered Respondent's licensed premises on two separate occasions and purchased two cans of Colt 45 beer, two packs of Newport 100's and four packs of Kool cigarettes. These items were turned over to Detective Henry who secured their custody until the hearing herein. Upon examination, it is determined that three of the four packs of Kool cigarettes had an Indian tax exempt stamp affixed and the two packs of Newport 100's had an extra pin dot affixed to the state tax seal. These were specific identifying marks which the detectives had affixed to identify property which they sold to Respondent during the course of the sting investigation. On or about March 29, 1990, Detectives Williams, Henry, Kewin and Investigators Parsons and Merrill reentered the licensed premises and arrested Respondent. Respondent was transported to the St. Petersburg Police Department where his Miranda rights were explained to him. He was thereafter interviewed by Detective Henry and Investigator Merrill. During the course of the interview, Respondent was allowed to listen to a cassette tape which contained a recording of a conversation which took place on the licensed premises on January 19, 1990 between Respondent and Detective Harris. In that tape, Respondent is heard agreeing to purchase the stolen property. Respondent admitted it was his voice on the tape and confessed to Detective Henry and Investigator Merrill that he had previously purchased property which was allegedly stolen from them on three different occasions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent's Alcoholic Beverage license no. 62-03664, series 2- APS, be revoked. RECOMMENDED this 25th day of April, 1991, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1991.
The Issue The issue in this case is whether Petitioner should suspend or revoke Respondent's alcoholic beverage license, pursuant to Section 561.29(1), Florida Statutes (1995),1 and Florida Administrative Rule 61A-2.022,2 because Respondent operated the licensed premises in a manner that was a public nuisance and permitted others to violate state criminal laws prohibiting the possession and use of controlled substances, or both.
Findings Of Fact Petitioner is the state agency responsible for regulating alcoholic beverage licenses. Respondent holds alcoholic beverage license number 15-02695, series 2-COP for the Red Top Lounge located at 2804 Kennedy Street, Mims, Florida (the "licensed premises"). Respondent is the sole proprietor of the licensed premises. On February 13, 1997, two of Petitioner's special agents ("SAS") and other undercover law enforcement officers entered the licensed premises as part of an ongoing narcotics investigation. Several patrons of the licensed premises were consuming marijuana and rolling marijuana cigars in plain view of Respondent's employees and managers. Respondent was not present at the time. On February 28, 1997, the same SAS and law enforcement officers returned to the licensed premises incident to the same investigation. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Black." On March 14, 1997, the same SAS and law enforcement officers returned to the licensed premises incident to the same investigation. After midnight on March 15, 1997, the SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Marty." On March 15, 1997, the same SAS and law enforcement officers returned to the licensed premises, incident to the same investigation. After midnight on March 16, 1997, the SAS purchased a small package of marijuana for $10 from an unknown patron. The disc jockey routinely encouraged patrons over the public address system to smoke marijuana inside the licensed premises. On April 25, 1997, one of the same SAS, another SAS, and other law enforcement officers returned to the licensed premises incident to the same investigation. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Kenny Harvey." On April 26, 1997, the same SAS and law enforcement officers involved in the investigation on the previous day returned to the licensed premises. After midnight on April 27, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. On May 2, 1997, two SAS previously involved in the investigation and other law enforcement officers returned to the licensed premises. After midnight on May 3, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. After midnight on May 3, 1997, two SAS previously involved in the investigation and other law enforcement officers returned to the licensed premises. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Roy." After the previous transaction on May 3, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. After midnight on May 4, 1997, the SAS purchased a small package of marijuana for $10 from an unknown patron. Subsequent to each purchase of marijuana by the SAS, the items purchased were chemically analyzed in a laboratory and found to be marijuana. Subsequent to each purchase of cocaine by the SAS, the items purchased were chemically analyzed in a laboratory and found to be cocaine. The SAS involved in the investigation have extensive experience and training in narcotics investigation and detection of controlled substances. They have conducted numerous undercover investigations. Each agent has personal knowledge of the appearance and smell of marijuana. The open, flagrant, and notorious drug activity on the licensed premises was the worst each agent had observed in his career. Each time the SAS entered the licensed premises, underage patrons consumed alcoholic beverages. More than half of the patrons present on each occasion consumed and rolled marijuana cigars. The second-hand marijuana smoke inside the premises was so great that the SAS were concerned for their personal health and the affect the second-hand smoke could have on each agent if subjected to a random drug test, pursuant to agency policy. The purchase, consumption, and use of marijuana occurred in plain view of Respondent's employees and managers. Respondent's managers and employees never attempted to prohibit the illegal drug activity. Respondent was never present on the licensed premises. She was caring for her daughter who died on April 2, 1997. During the time she was caring for daughter, Respondent relinquished management and control of the licensed premises to her granddaughter and her boyfriend.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's alcohol and tobacco license. DONE AND ENTERED this 7th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1997.
Findings Of Fact Respondent Mary L. Alexander holds beverage license No. 28-0041, Series 2-COP. Under this license she sells beer and wine at Whisper's Cafe, a business which she has owned and operated for approximately two years in Bunnell, Florida. (Testimony of respondent) Respondent employs a cook and a part-time bartender, who also serves as a disc jockey. The cook works primarily in the kitchen. At around 8:30 P.M., the bartender begins operating the juke box and remains in the dance area of the licensed premises, an area separated by a wall from the rest of the premises. Respondent (or a substitute bartender), works primarily in the bar and pool table area, which is located between the dining and dance areas of the premises. (Testimony of respondent) The evidence establishes, without contradiction, that two of respondent's bartenders committed three separate drug violations on the premises during April and May, 1982. Two violations involved bartender Ronney Locke, one involved bartender Fred Austin. I. Two Drug Violations by Bartender Locke On April 30, 1982, Maria Scruggs, a DABT Beverage Officer, entered Whisper's Cafe in an undercover capacity. Approximately twenty customers were on the premises--four or five were standing at the bar. Officer Scruggs ordered a drink at the bar. Several minutes later, Thomas Alexander, respondent's son, approached her and a conversation ensued. She asked him if he had any marijuana she could buy. He replied that he did not, and then referred the question to bartender Ronney Locke. Mr. Locke, offering to check around the bar, approached Clarence Lorick, a customer, who then delivered a small quantity of marijuana to Mr. Alexander for $5.00. Mr. Alexander, seated at the bar, rolled a marijuana (cannabis) cigarette in his lap and gave it to Officer Scruggs, who then left the premises. The cigarette was rolled in an open manner and in plain view of others on the premises. Respondent was not on the premises during this transaction and was unaware of its occurrence. (Testimony of Scruggs, respondent, P-1) On May 7, 1982, Officer Scruggs reentered the licensed premises in an undercover capacity. She began to talk, separately, with respondent and bartender Locke. She asked Mr. Locke if any cocaine or marijuana was available. He replied that he would check with the other customers for a $5.00 bag of marijuana. He approached Ginnie Lee Caskins a customer, Who then approached Officer Scruggs and handed her a manilla envelope containing marijuana (cannabis). Officer Scruggs said nothing and handed her $5.00. This exchange of money and marijuana took place under the bar and out of view of the other customers on the premises. Although respondent was on the premises, she was not close by and did not see the exchange or overhear the conversation. (Testimony of respondent, Scruggs, P-2) II. Drug Violation by Bartender Austin On May 12, 1982, Alphonso Junious, another DABT Beverage Officer, entered the licensed premises in an undercover capacity. He asked bartender Fred Austin, an employee of respondent, if he knew where he could buy some marijuana. Mr. Austin walked to the door and summoned Clarence Lorick, who then entered the premises. After a brief conversation, Mr. Lorick handed a small quantity of marijuana (cannabis) to Officer Junious, who, in turn, handed him $5.00. This exchange took place in a secretive manner and occurred after respondent had left the premises. She was also unaware of this drug transaction. (Testimony of Junious, respondent, P-3) III. Drug Violation by Respondent DABT also contends that on May 14, 1982, respondent unlawfully aided, counseled, or procured the sale or delivery of marijuana (cannabis) to Officer Junious. Respondent denies it. The evidence, although conflicting, substantiates DABT's contention. On May 14, 1982, Officer Junious reentered the licensed premises in an undercover capacity. He purchased a beer from respondent, who was tending bar. While seated at the bar, he overheard respondent tell an unidentified female patron that she (respondent) had been to a musical concert and had to leave to get something to smoke. Officer Junious, construing this to mean marijuana, said to her, "I could use something to smoke too," or words to that effect. Respondent replied, "Boot got some." (Testimony of Junious) Officer Junious knew who "Boot" (Henry Brown) was, having previously purchased marijuana from him in an undercover capacity. Officer Junious then left the premises, found "Boot" outside, and purchased a small quantity of marijuana (cannabis) from him for $5.00. (Testimony of Junious) These findings are based on the testimony of Officer Junious. Respondent denies that she said "Boot got some" or that she had any conversation with Officer Junious on May 14, 1982. She also denies that she said she could use something to smoke, and states that she does not smoke either tobacco or marijuana. Taking into account her bias and interest in the outcome of this proceeding, the testimony of Officer Junious is more credible and is accepted as persuasive. IV. Respondent's Supervision of the Premises Respondent, periodically, reminded her employees that no marijuana was allowed on the premises. She took no other action to ensure that drug violations would not occur on the premises. (Testimony of respondent On May 27, 1982, arrest warrants were executed by DABT and the licensed premises was searched. No illicit drugs were found on the premises. (Testimony of Scruggs) There is no evidence that marijuana has ever been smoked in the licensed premises. Neither does the evidence support a finding that respondent knew that marijuana had been, or was being, sold or delivered on the premises. The four separate drug violations committed on the licensed premises, and the manner in which they were committed, however, support a conclusion that these violations of law were fostered, condoned, or negligently overlooked by respondent, and they occurred, at least in part, due to respondent's failure to diligently supervise her employees.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license be suspended for a period of 90 days. DONE and ORDERED this 10th day of December,1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1982.
Findings Of Fact At all times relevant to this case, Joel Albert Collinsworth held a valid Division of Alcoholic Beverages and Tobacco liquor license for the premises known as the Silver Bullet Bar and Lounge (hereinafter licensed premises), located at 12 North Ninth Street, DeFuniak Springs, Walton County, Florida. Petitioner's Exhibit 1. The license held by Respondent is number 76- 330, Series 2-COP and is limited to the sale of beer and wine on the licensed premises. Investigator Don Taylor is a police officer with the DeFuniak Springs, Florida, Police Department. On Thursday, December 10, 1987, Investigator Taylor entered the licensed premises and seized glass containers of liquid that were marked as Petitioner's Exhibits 2, 3, and 4. The containers were only partly full. Investigator Taylor, has on many occasions, observed, smelled and tasted distilled spirits (and testified that the liquid was whiskey and not wine or beer.) Respondent, Joel Albert Collinsworth was on the licensed premises at the time Exhibits 2, 3, and 4 were seized and was immediately placed under arrest by Investigator Taylor. The three (3) glass containers were taken to the Florida Department of Law Enforcement laboratory in Pensacola, Florida for testing and identification of the liquid contained in the three (3) bottles. The lab results shows that the liquid contained a high concentration of ethyl alcohol. Petitioner's Exhibit 5. Investigator Roy Harris, an 18 year veteran of the Division testified that the concentrations of alcohol listed in Exhibit 5 were sufficiently high that they could not be anything other than distilled spirits. The 2-COP license held by the Respondent allowed only consumption on the premises of beer and wine. The license does not permit possession, consumption or sale of distilled spirits on the licensed premises. The evidence showed that distilled spirits were being possessed and/or consumed on the premises owned and operated by Respondent under his beverage license. Such possession and consumption constitute a violation of Section 562.02, Florida Statutes. Petitioner requested that Respondent's license be revoked for the violation of the Liquor Law. No mitigating facts were presented by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is therefore RECOMMENDED: That Respondent is guilty of the offense set forth in the Notice to Show Cause issued on January 13, 1988, and that Petitioner should revoke the license of Joel Albert Collinsworth, d/b/a Silver Bullet Bar and Lounge. DONE and ENTERED this 22nd day of July, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1295 Petitioner's Proposed Findings of Fact contained in paragraph 1, 2 and 3 have been adopted in substance in so far as material. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 W. Paul Thompson, Esquire Post Office Drawer 608 DeFuniak Springs, Florida 32433 Lt. Tom Stout, District Supervisor Division of Alcoholic Beverages and Tobacco 160 Governmental Center Suite 401, 4th Floor Pensacola, Florida 32501 Van B. Poole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
