Findings Of Fact At all times material hereto Barnell and Louise Evans held beverage license No. 62-01451-2-COP for premises located at 1313 North Greenwood Avenue, Clearwater, Florida. They have held this beverage license since 1980. Following receipt of complaints regarding the sale and use of controlled substances, principally marijuana and cocaine, on the licensed premises, an undercover investigation of Foxy's Den was initiated. Keith B. Hamilton, Department of Law Enforcement (DLE) Investigator, visited Foxy's Den the evening of February 28, 1985, observed patrons smoking marijuana, purchased a $5.00 packet from a patron in the lounge of what was later tested and found to be marijuana, purchased paper to roll marijuana cigarettes from the barmaid after holding up the packet he had just purchased, and observed other transactions in what appeared to be the sale and use of marijuana on the licensed premises. Ira L. McQueen, another DLE Investigator, visited the licensed premises during the evening hours of March 21, 26, and 28 April 9, 10, 16, 18, 24, and 29 May 6, 9, 15, 21, and 22: June 20, 25, and 26: July 1, 8, 18, 23, and 29, 1985. During each of these visits he observed one or more of the following: Patrons smoking marijuana in plain view in the bar area patrons selling marijuana and cocaine to other patrons, including McQueen, in the bar area without much attempt at secrecy: bartenders and barmaids discussing the purchase of controlled substances with patrons and acting as intermediaries in those purchases packets of marijuana and money in exchange therefor passing between patrons in plain view of the bartender patrons obtaining change from the bartender, for example, a $20.00 bill, to purchase a nickel ($5.00) or dime ($10.00) packet of marijuana and McQueen being asked by the bartender if he, McQueen, was interested in buying marijuana or cocaine, and thereafter the bartender participating in the purchase of cocaine or marijuana by contributing money to the purchase and contacting the vendors. During these visits to the licensed premises by McQueen, he observed the licensee, Barnell Evans, on the premises only twice, but on each of these occasions McQueen observed the illegal use or sale of controlled substances on the premises which could also have been observed by Evans. Louise Evans has a full-time job at a local hospital and visits the licensed premises only for the purpose of taking the books and records home where she prepares the payroll, pays bills, and keeps the books for the business. Barnell Evans' principal occupation is construction. He is a stucco subcontractor and has maintained this business in Clearwater for a number of years. He has a good reputation in the building industry for honesty and integrity. Operation of Foxy's Den is a part-time occupation of Evans. Respondents had been told by a friend that controlled substances were being sold in the vicinity of the premises. One bartender and a barmaid were fired by Respondents for involvement with drugs on the premises after being warned that implication in drugs on the licensed premises would not be tolerated by the owners. One witness described Barnell Evans as naive regarding controlled substances. His appearance during these proceedings supports the conclusion that he is more naive regarding how to stop the use or sale of controlled substances than indifferent to such use or sale. The bartender on duty most of the evenings Foxy's Den was visited by McQueen, and who was involved in McQueen's purchases, is June Little, the nephew of Barnell Evans, who had hired Little because he was out of work, living with his mother, and "needed a job." Respondents have negotiated an agreement, Exhibit 4, with Curtis McCoy Security Agency for the latter to provide an unarmed uniform security guard on the licensed premises from 4:00 p.m. until midnight daily to detect and deter violations of the laws regarding sale and/or use of controlled substances on the licensed premises.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order suspending alcoholic beverage license number 39-0992, series 4-COP, for two years, beginning September 19, 1984, but also providing that the suspension will be lifted on the condi- tion that and so long as: The licensee gives assurances satisfactory to the DABT that it employ a qualified security guard during business hours for purposes of preventing the use, sale or delivery of illegal drugs and preventing illegal drink solicitations on the premises; The licensee prominently posts signs satisfactory to the DABT in content, form, and placement and easily visible to patrons and employees giving notice of the licensee's policy that violations of the law will be reported to the proper authorities and will result in termination of employees and exclusion of non- employees from the premises; The licensee and its employees enforce the policy described in subparagraph 2. above; The licensee gives assurances satisfactory to the DABT that it holds meetings with all employees at least once a week to reemphasize the policies set forth in subparagraph 2. above; The licensee screen all employees and prospective employees in an manner satisfactory to the DABT. RECOMMENDED this 28th day of November, 1984 in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 28th day of November, 1984.
Findings Of Fact The stock in Bourbon Street Corporation is owned by Richard Stanton and James Urie. These individuals also own several other bars and enterprises in the Dade-Broward area. All of the entertainment corporations are managed by Jane Kruger. One such company, Crazy Jim's Corporation, contracts with dancers to provide entertainment at the various Stanton-Urie enterprises managed by Kruger. Bourbon Street pays Crazy Jim's a fee for providing dancers. The dancers are, in turn, paid on an hourly or shift basis by Crazy Jim's. The bartenders at Bourbon Street are employees of the Bourbon Street Corporation and are in charge when on duty. They are instructed to contact Kane Druger when they have trouble with a dancer or with any facet of the business. In practice, bartenders control dancers to the extent of telling them when to dance, when to mingle with customers, how to conduct themselves, and to leave the premises if they are too "high" to work. The efforts of management to prevent drug use and sale by employees- dancers involve the posting of rules of conduct in the dressing room and inclusion of these rules in employment contracts; the use of polygraph examinations; and occasional premises visits by undercover "spotters." Several employees-dancers have been discharged for drug use. The openness of drug use and sales in Bourbon Street varies. The testimony of Beverage Officers Douglas, Maggio, Jones and Imperial, detailed below, indicates generally open drug use and discussion of sales during the period of their investigation (February and March, 1981). During the same period, Beverage Officers Alford, Thompson, Nelson and Fitzenmeyer were also assigned to the Bourbon Street investigation. By stipulation, they observed nothing of an incriminating nature. An attorney and a police officer who were patrons of Bourbon Street saw or heard nothing incriminating on their visits. An undercover investigator working for Bourbon Street observed no drug activity during a check in December, 1980, but had observed substantial drug activity on an earlier visit in May, 1980. On February 22nd, 1981, Beverage Officer Douglas entered the licensed premises of Bourbon Street to investigate alleged violations and remained on the premises until 4:45 a.m. February 23rd. Officer Douglas met a dancer identified as Jacque LaPriest who agreed to arrange a purchase of cocaine. Thereafter, LaPriest placed two calls using the telephone located at the bar. After the second call, which was placed about 4:10 a.m., she advised Douglas that her man would be there in 20 to 25 minutes. At 4:30 a.m. a man introduced as Dave arrived. LaPriest obtained a package which contained the alleged cocaine. Douglas paid $140 to LaPriest for the substance. Douglas then left the premises and field tested the substance. He received a positive indicating of cocaine and prepared the substance for delivery to the Metropolitan Dade County Public Safety Department Crime Laboratory Bureau (hereinafter crime lab). Officer Douglas sealed the substance in an envelope but did not personally deliver it to the crime lab. The test was performed by Harry J. Coleman, and his report (Exhibit 2) established that the substance was cocaine. [Count 4]. On the evening of February 22nd and the morning of February 23, 1981, Beverage Officers Douglas and Maggio were on the licensed premises of Bourbon Street. They engaged in conversations centering on drugs with a dancer identified as Jennifer. At about 12:30 a.m., February 23, Jennifer gave Douglas and Maggio a packet containing a substance they believed to be cannabis. Douglas field tested the substance and obtained an indication of cannabis. The crime lab analysis performed by Albert C. Christensen confirmed that the substance was cannabis (Exhibit 4). [Count 7]. About 2:30 a.m., February 23, 1981, Beverage Officer Douglas, while on the licensed premises of Bourbon Street, was approached by a dancer identified as Maya Qaulliu. She offered to sell Douglas one gram of cocaine for $80.00. Douglas made the purchase and secured the substance for delivery to the crime lab. The analysis, performed by Albert C. Christensen, established that the substance was cocaine (Exhibit 4). [Count 8]. During the early morning hours of March 19, 1981, Beverage Officer Douglas was on the licensed premises of Bourbon Street. A dancer, Jacque LaPriest, offered to obtain cocaine for him at $90 per gram. They agreed that Douglas would purchase two grams and give LaPriest one-half gram. At 12:50 a.m. LaPriest informed Douglas that her man had arrived. She went outside the bar to meet the individual bringing the substance. Douglas paid LaPriest $180 and observed her receiving the packets, which Douglas subsequently acquired. He field tested the substance and obtained an indication of cocaine. The crime lab analysis performed by Jack J. Genova established that the substance was cocaine (Exhibit 6). [Count 9]. On the evening of March 19, and in the early morning hours of March 20, 1981, Beverage Officer Douglas was on the licensed premises of Bourbon Street. He discussed drugs with a dancer identified as Jacque LaPriest. At 12:45 a.m., LaPriest advised Douglas that she was going to "snort" cocaine and agreed to save a "line" for Douglas. She subsequently gave him a folded one dollar bill which contained the alleged cocaine. He replaced this dollar bill and tipped LaPriest for giving him the substance. Douglas secured the dollar bill for later analysis. The crime lab test performed by Jack J. Genova established that the substance was cocaine (Exhibit 8). [Count 10]. On the evening of March 20 and early morning of March 21, 1981, Beverage Officer Douglas was on the licensed premises of Bourbon Street. The dancer, Jacque LaPriest, offered to obtain two grams of cocaine for Douglas with a request that he give her one half-gram. Subsequently, LaPriest delivered three packets of the alleged cocaine to Douglas. He gave one container to LaPriest and field tested the contents of the remaining packets. He obtained a positive indication of cocaine which was later confirmed by the crime lab analysis performed by Kenneth F. Ede (Exhibit 15). [Count 11]. On the evening of February 17 and early morning hours of February 18, 1981, Beverage Officers Jones and Imperial were on the licensed premises of Bourbon Street. Jones was approached by the dancer Maya Qaulliu who subsequently gave him two alleged cannabis cigarettes. Jones secured the cigarettes and later submitted them for analysis. The crime lab report, signed by Newton E. Porter, confirmed that the cigarettes contained cannabis (Exhibit 12). [Count 1]. Beverage Officers Imperial and Jones were on the licensed premises of Bourbon Street on the evening of February 17 and the early morning hours of February 18, 1981. Imperial was approached by a dancer identified as Mary, who subsequently gave him an alleged cannabis cigarette. He retained the cigarette and later submitted it for laboratory analysis. The crime lab report, prepared by Newton E. Porter, established that the cigarette contained cannabis (Exhibit 13). [Count 2]. Beverage Officers Imperial and Jones were on the licensed premises of Bourbon Street in the early morning hours of February 18, 1981, and sought to purchase cocaine from the dancer Maya Qaulliu. In response to this request, Qaulliu introduced Imperial and Jones to an individual identified as Herbert R. Wolff, who thereafter left the premises. About 30 minutes after Wolff's departure, the bartender Nina called Qaulliu, who was on the dance stage, to the phone. The beverage officers heard Qaulliu discussing cocaine and during the conversation she stated to the officers: "$80 dollars a gram for coke." This statement was made openly and could have been heard by other persons near the bar, including the bartender Nina who was closer to Qaulliu than the beverage officers. [Counts 3, 12, 13]. Wolff returned to the bar and was thereupon accompanied to the restroom by Imperial and Jones. Wolff gave the beverage officers two grams of suspected cocaine for which each officer paid Wolff $80. This material was later delivered to the crime lab for testing and was found to contain cocaine by Jack J. Genova (Exhibit 18). [Count 3]. Subsequently, during the early morning hours of February 18, 1981, Wolff offered to sell cannabis to Beverage Officers Jones and Imperial. This offer took place on the licensed premises in the presence of Qaulliu. The officers agreed to buy and accompanied Wolff to a parking lot adjacent to the premises where they observed about five pounds of suspected cannabis in the trunk of Wolff's car. The officers purchased one pound of the substance for $180. The material was subsequently tested in the crime lab where it was found to contain cannabis by Newton E. Porter (Exhibit 20). [Counts 12, 13]. Beverage Officers Jones and Imperial were on the licensed premises of Bourbon Street during the evening of February 22, and the early morning hours of February 23, 1981. A dancer known as Kitten or Jennifer gave Jones a suspected cannabis cigarette which he later submitted for crime lab analysis. The substance was tested by Robert J. DiMarzo and proved to be cannabis (Exhibit 23). [Count 6]. During the late evening of February 22, 1981, Beverage Officers Imperial and Jones asked the dancer Maya Qaulliu if cocaine was available. She advised them that she could arrange a purchase and placed several phone calls in the presence of the bartender, Mary. Imperial heard Qaulliu order two grams of cocaine for $80 per gram. Mary was standing nearby and could have heard these conversations. About 2:00 a.m. February 23, Herbert Wolff arrived and requested that Imperial and Jones follow him into the restroom. He then delivered the suspected cocaine and received $180 from the beverage officers. Wolff inhaled a substance suspected to be cocaine while they were in the restroom. Customers came in and left the restroom during these transactions and could have heard the discussions. The substance purchased by Officers Imperial and Jones was forwarded to the crime lab and was found to be cocaine by Robert J. DiMarzo (Exhibit 23). [Counts 5, 12, 13]. Newton E. Porter, who prepared Exhibits 12, 13 and 20, was the only crime lab analyst present to testify at the hearing. However, Porter verified that the other reports offered into evidence by Petitioner were prepared by crime lab employees assigned to substance analysis. Porter described the crime lab accounting controls and testing procedures, and was available for cross- examination on these matters. This testimony coupled with property receipts which the beverage officers obtained on each substance submitted to the crime lab support a finding that the evidence was properly handled and that the conclusions reached in the crime lab reports are valid.
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, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 13 of the Notice to Show Cause. It is further RECOMMENDED that the charges contained in Count 12 be dismissed. It is further RECOMMENDED that Respondent's License No. 23-0523, Series 4-COP be suspended for a period of 90 days, inclusive of the temporary suspension now in effect. DONE AND ENTERED this 24th day of April, 1981 in Tallahassee, Leon County, 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 24th day of April, 1981. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Henry A. Amoon, Esquire 123 N. W. 12th Avenue Miami, Florida 33128
Findings Of Fact Between June 6 and October 3, 1980, Petitioner's beverage officers and representatives of the Polk County Sheriff's Department conducted an undercover investigation of the Oasis Lounge in Ft. Meade. The business is operated by Milton Haverty who holds alcoholic beverage license No. 63-775. The manager- bartender during this period was John Haverty, the Respondent's son. On June 12, 1980, Beverage Officer West and Sgt. Allen of the Polk County Sheriff's Department visited the licensed premises in an undercover capacity. On that date, Martha Ann Berry delivered a beer to Beverage Officer West and accepted his payment for it. Both Officer West and Sgt. Allen observed Berry serve beer to another patron. Berry had been reported to the Polk County Sheriff's Department as a runaway juvenile. However, there was no evidence presented in this proceeding to establish that she was under 18 years of age at the time she delivered the alcoholic beverages. During the June 12, 1980, undercover visit to the licensed premises, the investigators openly discussed stolen property and were subsequently approached by John Haverty who asked that they obtain a T.V. set for him. Haverty and Sgt. Allen had further discussions about the T.V. set and a "stolen" outboard motor on June 20 and 24, 1980, again on the licensed premises. On June 27, the motor which was represented as stolen property was delivered to Haverty. In exchange for the motor, Haverty gave Allen three bags of marijuana (less than 20 grams) The transaction took place on the licensed premises. A subsequent sale of electronics equipment represented to be stolen goods was made by Allen to John Haverty on the licensed premises October 3, 1980. Haverty paid Allen $75.00 for these items.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner dismiss the Notice to Show Cause. DONE AND ENTERED this 30th day of July, 1981 in Tallahassee, Leon County, 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 July, 1981. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Milton Haverty Oasis Lounge 115 South Charleston Ft. Meade, Florida 33841
Findings Of Fact At all times pertinent to the issues herein, Respondent, Troy E. McCoy, trading as McCoy's Chevron Station in Marianne, Florida, held current alcoholic beverage License No. 42-71, issued by the State of Florida. This license is a 1-COP license. On September 18, 1983, Harold Glisson, a Deputy Sheriff with the Jackson County Sheriff's Department, was engaged in surveillance on property owned by a Mr. Maloy and a Mr. Harding located in Jackson County, Florida. Information had been presented from other deputies, specifically Deputy Wing T. Morris, that a growing plant which he recognized as marijuana had been spotted on the property from the air. Glisson arrived at the property between 1:00 and 2:00 p.m. After looking the property over, the deputies went back to the office to change clothes and pick up the gear necessary for their surveillance. They returned to the property at approximately 7:00 p.m. on September 18 and sat waiting in the dark. Mr. Glisson was located at the southeast corner of the property near Interstate Highway 10. At approximately 10:15 in the evening, Respondent and another individual subsequently identified as Vic Williams passed Deputy Morris, who was also involved in the surveillance, walking toward the field where the marijuana was located. Morris, who had a hand-held radio, called on ahead to Mr. Glisson and advised that two individuals were heading toward him. When the Respondent and Williams came to the area where Glisson was located, Glisson stood up, identified himself, and notified the two that they were under arrest. Williams stayed where he was, but Respondent started running and was apprehended approximately 50 to 75 yards away. At this point, Williams had seven plants subsequently identified as marijuana over his shoulder. Respondent was carrying nothing other than a pocketknife, a flashlight, and some string in his back pocket. After Respondent was apprehended, he was transported to the Jackson County Jail. The field was kept under surveillance all the rest of the night and, when dawn came, deputies pulled out in excess of 290 marijuana plants which were subsequently weighed and determined to weigh approximately 800 pounds, including roots, stalks, stems, etc. After the vegetable matter was dried and stripped down to just limbs and leaves, the net weight was, nonetheless, 117 pounds. This vegetable material was subsequently taken to the Florida Department of Law Enforcement laboratory in Pensacola, Florida, where it was analyzed and determined to be marijuana. The land on which the marijuana was growing was owned by Mr. Harding, for the most part. Mr. Harding was not interrogated by the police regarding this situation, even though he lived on the property. There is some controversy as to whether the deputy who confronted Respondent and Mr. Williams identified himself as a deputy at that time. The deputy contends that he did. Mr. McCoy, on the other hand, contends that he did not, indicating that he was suddenly confronted in an area where he had been advised marijuana was being cultivated by an individual who rose up in front of him, shined a light in his face, and cocked a shotgun; and it was the combination of these factors which caused him to run, fearing that his confronter was someone involved with the growing of the marijuana. This explanation is reasonable, and Respondent's reaction, even if the deputy identified himself as such, is not necessarily indicative of culpability. Respondent indicates that he went to the site voluntarily, knowing or believing that marijuana was being grown there. He indicates that earlier in the evening Mr. Williams had come to his gas station and in the course of conversation related that he had seen a place where marijuana was being grown. Respondent contends that for no other reason than just to see what marijuana looked like growing he decided to accompany Mr. Williams back to the site. It is at this point when he was apprehended. It is significant to note that at the time of apprehension the parties were exiting the marijuana patch and Mr. Williams had several marijuana plants over his shoulder. Williams admits that he had taken them for his own purpose and use. His knowing possession of marijuana, however, does not necessarily require the conclusion that Respondent either owned, possessed, or controlled it. Respondent is a respected businessman who has lived in the community for many years. His business associates know him as an excellent customer who has worked hard and improved his business. He is also known to have a good reputation with the bank and to be a good family man who conducts both his personal and business lives in a highly moral fashion. Respondent has no criminal record, and there is no record of any beverage violations over the six years he has held his beverage license. Respondent operates a gasoline station, grocery, fish bait, feed, and all-around general store. His alcoholic beverage license is for the sale of beer. His alcoholic beverage business constitutes at least 50 percent of his nongasoline business. His operation is the one place in the area where individuals who are going fishing, hunting, camping, or picnicking can come to pick up all of their supplies, including beer, in one place. He contends that if his alcoholic beverage license were suspended or revoked it would have serious adverse consequences upon his business and would very possibly have the ultimate effect of putting him out of business since he could not make his debt service without the beverage business. This estimate was confirmed by Mr. Miller, the jobber who supplies Mr. McCoy with his gasoline and who has invested substantial sums in Mr. McCoy's business for the purpose of improvement. It is these sums which could not be paid off if Respondent were to lose his license. On March 27, 1984, Respondent entered a plea, waiver and consent in the Circuit Court for Jackson County, Florida, on charges alleging trafficking in over 100 pounds off cannabis in violation of Section 893.135(1)(a), Florida Statutes. Respondent entered a plea of guilty to the crime of attempted trafficking. That portion of the form where Respondent was required to state the facts which resulted in the charges contains the comment "I was found and arrested in a wooded area at night where cannabis was growing." As a result of his plea, Respondent was required to pay a fine of $10,000 (notwithstanding counsel for Petitioner's representation that the fine was $25,000) and sentenced to spend every night and weekend in the county jail for a term of one year.
Findings Of Fact Willie Norman, Jr. d/b/a Paradise Cafe holds 2-COP beverage license and was so licensed at all times here relevant. In August, 1977 Willie Norman was in the hospital where he had a gall bladder operation. During this time on August 7 and 14, Gainesville police officers observed the Paradise Cafe open after hours on consecutive Sunday nights. Gainesville City Ordinance No. 2082 (Exhibit 9) prohibits the sale of alcoholic beverages on Sundays after 11 p.m. in the city of Gainesville. On 7 August 1977 the police found the establishment open at approximately 3 a.m. with 30 to 40 patrons in the premises and Ike Norman apparently in charge. The following Sunday night on August 14 the police raided the premises at 11:30 p.m. on Sunday night and found 40 to 50 patrons in the establishment with Ike behind the bar and Manuel Norman serving beer. When Manuel Norman was arrested, Ike stated that he (Ike) was running the business because the licensee was sick and that if anyone was to be arrested it should be him. After receiving the police reports, the premises were inspected by beverage agents on 30 August 1977 and Ike Norman told the agent that he was running the business for his son, the licensee, who was home sick. On 7 October 1978 two beverage agents entered the Paradise Cafe on a routine inspection, and, while looking in the men's room, one of the agents observed a brown paper bag, the contents of which he found suspicious. A subsequent analysis of the contents disclosed that the bag contained 14 grams of cannabis. No evidence was presented that licensee or any employee of licensee knew or should have known that the cannabis was on the premises. Willie Norman, Jr., Ike Norman and Manuel Lee Norman are brothers. Ike was the licensee of the cafe several years ago when it was named the Red Top Cafe. In 1973, Ike was convicted of possession of alcoholic beverages for sale without a license. He sold the business to his brother, Willie, who took over the lease and first became licensed in 1975-76. According to Willie's testimony, while he was in the hospital during the month of August, 1977, he left Manuel Norman in charge. He was aware that Ike could not legally be employed at the business because of Ike's criminal record. Willie expressed no knowledge of any of the other charges preferred against his license.
The Issue The issues presented for resolution in this proceeding concern whether the Respondent's alcoholic beverage licensure should be subjected to disciplinary sanctions because of alleged misconduct involving the sale and use of controlled substances on a licensed premises, more specifically delineated in the Notice to Show Cause filed in this proceeding by Petitioner.
Findings Of Fact The Respondent, JIMMIE WILLIAMS, owns the club or tavern known as the "Copa Cabana", doing business at 2901 North Haynes Street, Pensacola, Florida. That establishment holds a Series 2-COP alcoholic beverage license number 27- 00239, authorizing the sale of beer and wine on the premises. The Respondent is the sole owner of the Copa Cabana. Burnett Patterson, at times pertinent hereto, during September 1988 through February 1989, was a patrol deputy with the Okaloosa County Sheriff's Department. While a deputy with that Department, he engaged in special drug investigations. During the course of this employment, he became involved in numerous undercover operations designed to curb traffic and use of controlled substances. He thus became familiar with the appearance, properties and paraphernalia associated with crack cocaine and marijuana. On September 2, 1988, he met with Law Enforcement Investigator, Paul Blackmon, of the DABT. Investigator Blackmon asked Deputy Patterson to assist in a drug investigation of the Copa Cabana. At approximately 8:00 p.m. on that date, Deputy Patterson entered the Copa Cabana licensed premises in an undercover capacity. While in the licensed premises, inside the Copa Cabana, he observed patrons of that establishment openly smoking marijuana and crack cocaine. He observed one black male patron walking around inside the licensed premises holding a piece of crack cocaine visibly in his front teeth in order to advertise it for sale. This activity was done in the presence of the licensee/Respondent, Jimmie Williams. The undercover agent further observed numerous persons selling marijuana and cocaine inside, as well as outside the licensed premises. These persons made no attempt to conceal their illegal actions. It has not been demonstrated who owned or controlled the grounds immediately outside the door of the licensed premises. On September 16, 1988, at approximately 8:15 p.m., Deputy Patterson again entered the licensed premised in an undercover capacity. Upon entering the licensed premises, he observed 15 to 20 patrons inside and observed the Respondent working at the bar. Deputy Patterson went to the restroom inside the Copa Cabana and observed two black males cutting crack cocaine into small pieces, mixing them with marijuana, and rolling the resulting material into cigarettes or "joints" for smoking. Deputy Patterson purchased one piece of crack cocaine for $20.00 from a patron known as William Barker while inside the restroom. While inside the licensed premises, Deputy Patterson observed patrons openly smoking crack cocaine and marijuana. He was approached by other patrons, who asked if he wanted to purchase controlled substances. The substance purchased was analyzed and tested positive for cocaine. On September 19, 1988, at approximately 7:40 p.m., Deputy Patterson again entered the licensed premises in an undercover capacity. Upon entering, he made contact with patron, Jerry Green, who was accompanied by a patron known as "Killer." Deputy Patterson purchased one "baggie" of marijuana for $10.00 from "Killer." This transaction, along with the open smoking of marijuana, took place in the presence of the Respondent. Deputy Patterson also observed numerous controlled substance transactions taking place outside and near the entrance of the licensed premises. The substance he purchased was analyzed and proved to be marijuana. On September 24, 1988, at approximately 3:30 p.m., Deputy Patterson again entered the license's premises. He observed several patrons entering and exiting the restroom area. He entered the restroom and made contact with patron, John Butler. John Butler asked Deputy Patterson what he was looking for, and the Deputy replied "crack." Deputy Patterson was sold one piece of crack cocaine by John Butler and another unknown patron for $20.00. Deputy Patterson observed several patrons entering the restroom and purchasing crack cocaine. Jimmie Williams was inside the licensed premises during the time Deputy Patterson was present and making these observations. Deputy Patterson further observed several narcotic transactions outside the front entrance of the licensed premised. The substance purchased by Deputy Patterson was analyzed and tested as positive for the presence of cocaine. On October 8, 1988, at approximately 4:10 p.m., Deputy Patterson again entered the licensed premises in an undercover capacity. Prior to entering, he was asked by several patrons loitering near the entrance of the Copa Cabana if he wanted to purchase controlled substances. Once inside the licensed premises, he entered the restroom, where he made contact with patron, Calvin Black. Deputy Patterson purchased one piece of crack cocaine from Calvin Black for $20.00. Deputy Patterson then departed the restroom and observed patrons openly smoking marijuana while playing pool. Deputy Patterson contacted patron, Terry Boutwell, by the pool table. Terry Boutwell sold Deputy Patterson one baggie of marijuana for $10.00 at that location. Upon leaving the building, Deputy Patterson was again approached by persons outside the entrance to the Copa Cabana and asked if he wanted to purchase controlled substances. During all of the aforementioned events, including the sale of marijuana and the smoking of marijuana in the vicinity of the pool table, the Respondent was inside the licensed premises. Both the substance purchased from Calvin Black and that purchased from' Terry Boutwell were subsequently analyzed and proved to be controlled substances. On January 28, 1989, at approximately 5:00 p.m, a confidential informant, Alonzo Blackman, was designated to conduct a controlled substance purchase inside the licensed premises from the licensee, Jimmie Williams. The confidential informant was given specific instructions to buy only from Williams. Prior to departing the Sheriff's Department, he was thoroughly searched. It was determined that he had no controlled substances or money on his person. He was provided with a concealed, wireless voice transmitter. He was also given $50.00 of the Sheriff's Department's money for the purpose of purchasing crack cocaine. Subsequently, the confidential informant departed the Sheriff's Department with Deputy Gwen Salter. The pair was followed and traced by Escambia County Sheriff's Deputy Mark Shaeffer. Deputy Shaeffer was equipped with a radio receiver and monitored transmissions emitted from Alonzo Blackman's transmitter. Deputy Shaeffer observed Alonzo Blackman park behind the Copa Cabana to the rear of the building on a back street and depart Deputy Salter's vehicle. He observed Alonzo Blackman walk through the wooded area behind the Copa Cabana and disappear around the side of the building, moving toward the front of the Copa Cabana building. After Alonzo Blackman was out of sight around the corner of the Copa Cabana building, Deputy Shaeffer could hear normal outdoor sounds, as well as Alonzo Blackman's footsteps through the transmitter. Shortly thereafter, he heard the sound of a juke box playing and loud voices consistent with the noises one would expect when a person entered a bar. Within two or three minutes thereafter, Deputy Schaeffer observed Alonzo Blackman come back in sight around the corner of the licensed premises and enter Deputy Salter's vehicle. Deputy Schaeffer followed the two back to the Sheriff's Department, keeping Alonzo Blackman in visual sight the entire time. When Alonzo Blackman and Deputy Salter returned to the Sheriff's Department, Alonzo Blackman presented Deputy Schaeffer with a slab of rock cocaine and no longer had the $50.00 given to him by the Sheriff's Department. Subsequently, the substance purchased was analyzed and tested positive for the presence of cocaine. The Petitioner adduced a hearsay statement from Deputy Schaeffer to the effect that Alonzo Blackman had told him that he had purchased the rock cocaine in question from the Respondent. That statement was not admitted into evidence since it was not corroborative hearsay for the purposes of Section 120.58, Florida Statutes. The hearsay statement concerning the alleged purchase from the Respondent is not corroborative of the testimony concerning the other independent events in question in this proceeding involving the sale and use of controlled substances on the licensed premises by others. The only testimony or evidence directly concerning the alleged purchase of cocaine from the Respondent was that related by confidential informant, Blackman, to Deputy Schaeffer. The only other evidence purporting to show that the Respondent sold a slab of rock cocaine was the testimony by Deputy Schaeffer revealing what he saw and heard over his radio receiver. All he saw was Alonzo Blackman passing around the side of the building aid later returning around the back corner of the building. He heard his footsteps as he passed around and presumably entered the building, judging from the change in sounds received. There was no evidence that any voices or other noises transmitted to Deputy Schaeffer's listening station consisted of the actual drug transaction and specifically that any of the voices or sounds he might have heard were those of the Respondent in conducting that transaction. Since Deputy Schaeffer's testimony, itself, does not implicate the Respondent in selling the drug, the hearsay statement of the confidential informant, Alonzo Blackman, who could not be located at the time of the hearing, cannot be admissible corroborative hearsay. Thus, it was not established that on this occasion, the slab of rock cocaine was actually purchased from the Respondent. On February 8, 1989, at approximately 5:00 p.m., Alonzo Blackman was again designated to conduct a controlled substance purchase inside the Copa Cabana from the Respondent. He was given the same specific instructions, and Deputy Schaeffer made the same visual and auditory observations as he had with regard to the alleged transaction of January 28, 989. The same factual findings apply, and are made, with regard to this transaction as were made above concerning the January 28, 1989 transaction. The alleged fact that the purchase was made from Jimmie Williams was again predicated on the hearsay statement of Blackman, which was not corroborative and was uncorroborated. It cannot be used to support a finding that the Respondent sold the cocaine in question. On February 7, 1989, at approximately 8:00 p.m., Escambia County Investigators, Tyron Wicks, Melvin Possey and J. Johnson, conducted a "routine drug sweep" of the Copa Cabana. This type of operation was a routine matter for Investigator Wicks in the six months prior to February 7, 1989. Upon entering the licensed premises, Investigator Wicks went directly to the men's restroom where he observed four patrons having a conversation while looking into a paper bag. Investigator Wicks seized the paper bag which contained nine plastic baggies of marijuana ready for distribution and charged him with possession of 20 grams of marijuana with the intent to distribute. Investigator Wicks is familiar with the smell of marijuana smoke; and during "drug sweeps" conducted in the licensed premises, estimated to be 20 or 30 such operations for the previous six months, he smelled such smoke in the licensed premises on a number of occasions. On these occasions, he had also found marijuana and crack and razor blades, as well as pipes and cans used for smoking crack, on the floor of the licensed premises. He has seen people buy drugs at the Copa Cabana while he has been present there with the Sheriff's Department Narcotics Unit during the years 1988 and 1989. Sergeant Bobby Jackson of the Narcotics Division of the Escambia County Sheriff's Department has bean a law enforcement officer for approximately 14 years. He is familiar with the smell and appearance of marijuana and crack cocaine. He has been involved in 20 to 30 raids at the licensed premises. On at least 15 occasions, officers in his party have found controlled substances. The Respondent was always present when these raids took place. On many of the raids, Sergeant Jackson smelled the odor of marijuana smoke in the licensed premises. He is certain that the Respondent was present on these occasions. During these raids, he has observed marijuana cigarette butts on the floor of the licensed premises and has often found people inside bagging marijuana. Prior to the suspension of the beverage license on February 10, 1989, Sergeant Jackson received quite a few complaints about the licensed premises; and each time he visited it, he would observe a great number of people standing around inside and outside the licensed premises. It has been quite different since the suspension of the license and the shutdown of operations at the Copa Cabana. Sergeant Jackson has received very few complaints since February 10, 1989. Sergeant Jackson, however, never received any complaints from the Respondent about drug use in the establishment. John Green is a black male, whose mother lives approximately a block from the licensed premises. He has been a friend of the Respondent for approximately 15 years. During the period of January and February of 1989, he patronized the licensed premises six days a week, every week. He would go there after work and stay until approximately 9:00 p.m. He states that he always saw the Respondent behind the bar. John Green stated that the bar was a self- service bar where patrons could get beer out of the cooler in front of the bar and pay for it at the counter. He maintained that he had never seen Deputy Patterson and that, in his opinion, marijuana smoke smells just like Kool cigarette smoke. He drinks beer every night, including the times when he patronized the Copa Cabana. He testified under oath that he had never seen anyone use drugs in the licensed premises and that on one occasion, however, he had thrown someone out of the licensed premises for using drugs. Dorothy Mouton lives approximately six miles from the Copa Cabana and works at Washington Junior High School in an administrative capacity. She knows the Respondent, who also works there as a coach. She, in the past, has stopped at the Copa Cabana to eat a snack and converse the During the period of August of 1988 to February of 1989, she went to the Copa Cabana every week. According to Ms. Mouton, the Respondent had a stool behind the bar and would get beer from the cooler for patrons who requested beer. She claimed that she was able, by her experience, to identify marijuana smoke and crack cocaine. She maintained that she never saw any drug of either sort in the licensed premises She also testified that it was her habit to depart the licensed premises every day between 6:00 p.m. and 6:30 p.m. Chris Dortch is a 27 year old black male who has known the Respondent for a long period of time. He helped the Respondent operate the Copa Cabana when he first established it. He lives approximately four blocks from the Copa Cabana. He goes to the licensed premises every day and sometimes stays until it closes. He has always observed the Respondent staying behind the bar counter while he is on duty. This witness also claimed under oath that he had never seen any cocaine or marijuana smoked in the licensed premises and had never smelled any marijuana smoke within the licensed premises. He testified that he saw police officers in the licensed premises at least ten times, but never observed any arrests. Elizabeth Freeman lives around the corner from the licensed premises and has lived there approximately four years. During the period of September of 1988 to February 10, 1989, she went to the club every day for about an hour where she would talk to Williams and play video games. She claimed that she observed Williams, on occasion, move from behind the counter into the public area of the tavern. She also testified that she has never seen any indications of drug use on the premises. Shirley Washington was in the habit of going to the club during the period of August of 1988 to February of 1989 at approximately 4:30 p.m. and generally would stay until closing, usually around 9:00 p.m. She was a member of a social group called "The Copa Cabana Queens." It was her habit, during this period of time, to drink four to five six-packs of beer each day. She is familiar with the smell of crack cocaine smoke and marijuana smoke. She testified that she had never observed any marijuana or crack cocaine within the licensed premises. She has been a friend of the Respondent for approximately 25 years. The Respondent is an instructor and coach with the Escambia County School Board. He has owned the Copa Cabana for 15 years. It is a recreation center, lounge, notion store and meeting place. He also has live entertainment and occasionally, a fashion show. His license authorizes him to sell and serve beer and wine. He is the only employee, but Ms. Washington minds the bar for him when he is temporarily away from it (in the restroom, etc.). He testified that he never observed Deputy Patterson until the day of the hearing. He testified that no drugs had ever been in the licensed premises and that he had never dealt in drugs. The testimony of Deputies Patterson and Schaeffer, Investigator Wicks, Sergeant Jackson, and Law Enforcement Investigator Ralph Kelly, to the effect that controlled substances were openly and notoriously used and sold on the premises in question, conflicts in a general sense with the testimony of Respondent's witnesses to the effect that they never saw any marijuana or crack cocaine on the premises or smelled any and so forth. This conflict in the testimony of the witnesses of the Petitioner and Respondent must be resolved by determining which are more credible. Determining the credibility of witnesses is an important and exclusive task of the fact finder Guidelines for resolving credibility issues are provided in Volume 24, Florida Jurisprudence 2nd, Sections 688-696, and grand jury instruction 2.04 on page 779 of West's Florida Criminal Laws and Rules (1989), which sets forth areas to consider in determining whether a witness is credible. Those areas include: whether the witness had an opportunity to observe and know the things about which he testifies' whether his memory seemed accurate; whether he was straight forward in his answers; whether he was interested in the result of the case at issue; whether it is consistent with other testimony and evidence adduced; and whether he has, at some different time, made an inconsistent statement from the testimony given before the court. Firstly, concerning the testimony of John Green, it can be seen that he testified to having patronized the establishment during the period of January and February of 1989 and purported never to have seen Deputy Patterson. This is not surprising since there was no testimony by the Deputy that he was in the licensed premises during those two months. Therefore, John Green would have had no opportunity to observe Deputy Patterson at the time he frequented the licensed the premises. John Green also testified that he drank beer in the licensed premises every night and, thus, could quite likely have suffered a diminution of his powers of observation as a result of drinking beer. Dorothy Mouton maintained that she went to the Copa Cabana every week during the period of August of 1988 to February of 1989. She stated that she went there between the time she got off work until 6:00 p.m. or 6:30 p.m. Her time in the licensed premises was, therefore, very limited; and everything alleged by the Petitioner's witnesses could easily have occurred without her being on the licensed premises to observe the alleged violations. Elizabeth Freeman stated that she went to the Copa Cabana for about an hour each day during the time alleged in the Notice to Show Cause. If her testimony that she saw no drugs used on the licensed premises is accepted as true that still does not resolve the problem that the amount of time that she spent on the licensed premises was quite limited. The violations testified to by the Petitioner's witnesses could have occurred during her absence from the licensed premises. Shirley Washington claimed that she was at the Copa Cabana every day from 4:30 p.m. to approximately 9:00 p.m. during the time pertinent to the charges in the Notice to Show Cause. She also testified that she would drink four to five six-packs of beer every day. That could easily diminish her powers of observation and, no doubt, did. None of the witnesses for the Respondent could describe the events of any particular day alleged in the Notice to Show Cause. Their testimony was rather of a very general nature and not date or time-specific. On the other hand, the Petitioner's witnesses were trained law enforcement officers and observers, who kept meticulous records of their participation in the events in question and who gave detailed testimony as to the time, date and circumstances of each event that took place on the licensed premises and later became the subject of the charges in the Notice to Show Cause. There is no evidence that any of the law enforcement officers were drinking or otherwise had impaired powers of observation during the pertinent times. The Respondent's witnesses' memories and resulting testimonies appeared very general at best. Concerning the issue of whether the witnesses might have some interest in how the case should be resolved, it should be pointed out that the Respondent's witnesses were all old friends of the Respondent. John Green has been a friend of the Respondent for 15 years. Dorothy Mouton is a co-worker of the Respondent's at Washington Junior High School and must be counted as a friend of the Respondent. Chris Dortch has apparently known the Respondent since he was a small child. Elizabeth Freeman has been his friend and customer for the past four years. Shirley Washington has been the Respondent's friend for 25 years. All of these people are not only friends of the Respondent, but apparently considered the Copa Cabana a sort of favorite resort or meeting place away from home and clearly wanted to continue the benefit of the close friendly relationship. The Petitioner's witnesses, on the other hand, were professional police officers, none of whom had any relationship with the Respondent or the Copa Cabana. There was no evidence that any of the officers were somehow targeting the Respondent for special prosecution efforts. It rather appears that the events which came to light, as described in their testimony and the Notice to Show Cause, were discovered through routine police operations. Further, Deputy Patterson testified concerning the issue of whether the Respondent exhibited proper diligence in supervising and maintaining surveillance over the licensed premises. He stated that when the Respondent sold' a beer, he would do so by receiving the money for the beer and then moving outside of the bar to the cooler, kept in the room near the bar, to obtain the beer and give it to the customer. The Respondent's witnesses, however, addressed this matter with differing testimony. John Green, stated that customers would get the beer themselves from the cooler and then go to the counter to pay for it. Dorothy Mouton stated that the Respondent would get the beer from the cooler himself, which required him to walk outside the area behind the bar into the area of the room, in which the bar was located, to the cooler, which would allow him to view the rear room and restroom area of the licensed premises. Chris Dortch testified that the Respondent stayed behind the counter during beer sales. Elizabeth Freeman stated that she had observed the Respondent move from behind the counter into the open area of the licensed premises in the act of getting a beer for a customer. Thus, the Respondent's witnesses' testimony as to this question was inconsistent in terms of rebutting the testimony of Deputy Patterson as to the manner in which beverages were sold by the Respondent, as that relates to the Respondent's physical position in the licensed premises and ability to see what activities transpired in the rear room, the area of the restroom entrance and the pool table. In any event, the foregoing analysis reveals that the testimony of the Petitioner's witnesses is more credible. It is concluded that that of the Respondent's witness, and the Respondent himself, show a lack of knowledge, clear memory, and consistency, at best, without reaching the question of whether any of the Respondent's witnesses deliberately falsified their testimony. Accordingly, the testimony of the Petitioner's witnesses, to the extent that it conflicts with that of the Respondent's witnesses, is accepted as more credible.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the competent, credible evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Respondent, JIMMIE WILLIAMS, d/b/a Copa Cabana, be found guilty of the offenses set forth in Counts II and III of the Notice to Show Cause. It is further recommended that Count I of the Notice to Show Cause be dismissed. It is further recommended that the alcoholic beverage license held by the Respondent be revoked and that a civil penalty of $2,000.00 be assessed against the Respondent. DONE AND ENTERED this 26th day of January, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 26th day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-719 Petitioner's Proposed Findings of Fact 1.-6. Accepted. Accepted, but not as probative of the ultimate fact of the sale of rock cocaine by the Respondent, himself. Accepted, but not as probative of the ultimate fact of the sale of rock cocaine by the Respondent, himself. Accepted. Accepted. Accepted, but not as probative of any material issue presented for adjudication. 12.-16. Accepted, in that these proposed findings of fact describe the testimony of these witnesses. However, these witnesses have been determined to be not credible. 17. Accepted, to the extent that it is arc accurate description of the Respondent's testimony. Respondent's Proposed Findings of Fact 1.-4. Accepted. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and as not Entirely in accordance with the clear and convincing evidence. 7.-9. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and hot in accordance with the clear and convincing evidence. Rejected, as not materially dispositive of the issues presented. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and not, itself, materially dispositive. Rejected, as not, .in itself, materially dispositive. Accepted, in part, but the evidence in this case does not delineate the extent of the premises owned or controlled by the Respondent, and to that extent, it is rejected. Rejected, as subordinate to tide Hearing Officer's findings of fact on the subject matter and as to it's purported material import. Rejected, as to its material import in relation to the remainder of Deputy Patterson's testimony. Rejected, as contrary to the clear and convincing evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and not in accordance with the clear and convincing evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and not being an accurate reflection of the overall sense of the witnesses' testimonies. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as being contrary to the greater weight of the clear and convincing evidence. Accepted, but not, itself, dispositive of material issues presented, except to the extent that it has not been proven that the Respondent, himself, offered any drugs for sale. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and as not being, itself, dispositive of material issues presented. Rejected, as immaterial. Even if this is true, it does not overcome proof that the Copa Cabana club's operations constitute a nuisance. COPIES FURNISHED: Harry Hooper, Esq. Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Leo A. Thomas, Esq. Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. P.O. Box 12308 Pensacola, FL 32581 Leonard Ivey, Director Department Of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000
The Issue Whether respondent's law enforcement officer certificate should be revoked or suspended for alleged failure to maintain qualifications for certification, failure to maintain good moral character, and willful neglect of duty, incompetence, or gross misconduct which seriously reduces his effectiveness as a law enforcement officer.
Findings Of Fact At all times relevant to the charges, respondent held a law enforcement certificate issued by the Commission, and was employed as a Deputy Sheriff by the Polk County Sheriff's Department. In December, 1979, Respondent -- while employed as a Deputy Sheriff -- purchased a $5.00 bag of marijuana from an individual identified as "Baldy." The purchase took place in the presence of others and occurred at Baldy's apartment located at 904 Center Avenue, Haines City, Florida. Respondent did not arrest Baldy for possession and sale of marijuana. Moreover, on at least one occasion during the same year, respondent smoked marijuana at Baldy's apartment in the presence of others. This finding is based on respondent's admissions to R. L. Stanley and Jerry Whitehead. Those admissions are corroborated by the hearsay statement made by John Butler, Jr. to investigator Robert Parnell, and by the results of a polygraph examination which respondent took on February 9, 1981. The examination was administered by an expert polygraph examiner. Moreover, respondent did not object to receiving the examination results into evidence. At hearing, respondent admitted using marijuana, but denied having purchased marijuana at Baldy's apartment in December, 1979. His denial is rejected as unworthy of belief. (Testimony of Stanley, Whitehead, respondent; P-1, P-2, P- 3) On February 9, 1981, respondent was involuntarily terminated as a Deputy Sheriff with the Polk County Sheriff's Department for conduct unbecoming an employee, i.e., the purchase and use of marijuana.
Recommendation Based on the foregoing it is RECOMMENDED: That respondent's law enforcement officer's certificate be suspended for one year, with reinstatement upon a showing of rehabilitation. DONE and RECOMMENDED this 30th day of March, 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 30th day of March, 1983.
The Issue The issue posed for decision herein is whether or not the Respondent's alcoholic beverage license should be suspended, revoked, or otherwise disciplined based on the Petitioner's Notice to Show Cause filed herein dated April 13, 1983.
Findings Of Fact The Manhattan Restaurant holds alcoholic beverage license No. 68-442 SRX, Series 4-COP, issued in the name of Johnny W. Abner. The premises are located at 1409 Ninth Street, Sarasota, Sarasota County, Florida. Respondent's place of business is well known to the Intelligence Unit of the Sarasota Police Department as a place where sales of narcotics are conducted inside the premises. This information comes from confidential informants and intelligence reports submitted by officers working in the field. (Testimony of Keith Bernard Hamilton, State Beverage Officer; and James D. Fulton, Police Officer, City of Sarasota.) Detective James D. Fulton works primarily in this area of town and is familiar with crimes against persons in narcotics dealing in the area of the Respondent's tavern. Beverage Officer Keith Hamilton was assigned to an investigation of bars and restaurants in the area of Respondent's tavern during late March and early April, 1983. He is a qualified narcotics investigator and is familiar with the smell and appearance of marijuana and cocaine. During the evening of March 22, 1983, Officer Hamilton entered the licensed premises and made contact with the on-duty disc jockey, Joel, and inquired of Joel as to the availability of marijuana. Joel advised that he could obtain some for Officer Hamilton and, upon being given $10, left the area. Joel returned in approximately 10 minutes and handed Officer Hamilton a yellow manila envelope containing a vegetable substance together with $4 in change. The exchange was made openly without any attempt to hide. Officer Hamilton bagged, sealed, and receipted the substance given him by Joel, which was returned to the Sarasota district office and later submitted to the FDLE crime laboratory in Tampa for analysis. Analyst Brenda Norton determined that the substance purchased contained cannabis. At the hearing herein, Officer Hamilton identified the substance analyzed as that purchased by him from Joel. (Petitioner's Exhibit 1.) Joel, during testimony in the instant proceeding, admitted that he made the purchase from an unidentified patron from Bradenton, Florida. Officer Hamilton returned to the licensed premises of the Manhattan Restaurant on the evening of March 22, 1983, where he observed patrons smoking marijuana. Officer Hamilton observed the unique manner in which the cigarette was rolled and the manner in which the patrons held and inhaled the smoke. Based on the aroma of smoke that he smelled on that occasion, he concluded that it was marijuana that was being smoked by the patrons. Officer Hamilton next returned to the licensed premises of the Manhattan Restaurant on the evening of March 23, 1983, at approximately 9:30 p.m. Again, Officer Hamilton made contact with the on-duty disc jockey, Joel, and inquired as to the availability of marijuana. Joel advised that he did not have marijuana for sale at this time, but did advise that he had some good "coke" for sale. Officer Hamilton handed Joel $10, and Joel left and shortly returned with a clear capsule containing a substance which was later analyzed by the FDLE crime laboratory. Analyst Morton determined that the capsule analyzed contained cocaine. At the hearing, Officer Hamilton identified the substance analyzed as that purchased by him on the evening of March 23, 1983. (Petitioner's Exhibit 3.) Joel admitted to such sale and advised that he obtained the drug from a patron at the bar. While at the bar and during the purchase of the cocaine capsule from Joel on March 23, 1983, Officer Hamilton observed the licensee, Johnny Abner, at the bar area of the licensed premises on that occasion. Approximately one hour later, Officer Hamilton again made contact with Joel at the bar area at the Manhattan Restaurant and inquired as to the availability of marijuana. Joel advised that he had some available and told Officer Hamilton to wait for a moment. Joel returned and exchanged one manila envelope for $6. The transaction was carried out in an open manner, and the licensee, Abner, was observed at the time of the transaction at the bar area. The substance purchased by Officer Hamilton was bagged, sealed, receipted and returned to-the district office, which later submitted the substance to the FDLE crime laboratory in Tampa. Analyst Morton determined that the substance analyzed contained cannabis. (Petitioner's Exhibit 2.) Joel admitted to purchasing the marijuana for Officer Hamilton from another patron at the licensed premises whom he knew sold drugs. On that occasion, Officer Hamilton again observed patrons passing what, from his experience, were marijuana cigarettes. The patrons were located in the pool table area, and their actions were observable from the bar. On the afternoon of March 24, 1983, Officer Hamilton discussed with Joel trading liquor which Officer Hamilton represented was stolen from an ABC liquor truck to licensee Abner for marijuana. Joel advised that he would check with Abner as to whether he wanted to make a trade and asked Officer Hamilton to check back with him that evening. As requested, Officer Hamilton returned to the licensed premises of the Manhattan Restaurant at approximately 7:40 p.m. on the evening of March 24. Officer Hamilton made contact with Joel, who advised that Abner had agreed to the trade. Joel and Hamilton thereafter unloaded two cases of allegedly stolen liquor into the back of a red and white Ford van bearing license No. BP8575, which is registered to the licensee, Abner. The transfer was made in the parking lot of the licensed premises pursuant to what Joel represented were instructions from Abner to put it in the truck. Joel thereafter advised Officer Hamilton to check back with him in approximately one hour since licensee Abner had sent someone to get the marijuana. Officer Hamilton returned to the Manhattan Restaurant at approximately 10:00 p.m. and made contact with Joel. Joel advised that Abner had not yet sent anyone for the marijuana, and during the course of that discussion, Joel advised that Abner, when he buys such property, frequently tries these tactics to get the price as low as possible. Joel, however, advised that he would seek to the get the best price for him. During his stay, Officer Hamilton observed Joel and licensee Abner having a discussion and later an exchange of currency. Thereafter, Joel advised Officer Hamilton that Abner had given him the money, and Joel procured from a patron on the licensed premises approximately one-half ounce of a vegetable substance. Officer Hamilton bagged, sealed, and receipted the substance given him by Joel, returned it to the district office, which later submitted it to the FDLE crime laboratory in Tampa. The substance was analyzed by analyst Brenda Morton and was found to contain cannabis. (Petitioner's Exhibit 4.) At the time of the service of th& Emergency Order of Suspension, April 13, 1983, Officer Goodman found two 1.75 liter bottles of Popov Vodka in the bar area of the Manhattan Restaurant where other liquor for sale to customers was kept. These liquor bottles had previously been marked by Officer Ken Goodman as part of the quantity represented to be stolen and traded to Joel by Officer Hamilton in exchange for the marijuana. (Petitioner's Exhibits 6 and 7.) 2/ Officer Hamilton remarked to licensee Abner that he could "get him the same deal again." Jeffery Dawson, a bartender employed at the Manhattan Restaurant, has been given instructions by licensee Abner regarding certain prohibited acts, including the carrying of weapons and the use of drugs in the licensed premises. Dawson has also heard the disc jockey (D.J.) announce that no drugs or firearms were to be used or carried in the licensed premises. Patrice Rivers, a barmaid employed at the Manhattan Restaurant since approximately March, 1983, was told, at the time of her employment, by licensee Abner that there were to be no drugs or firearms carried or used by customers in the licensed premises. Employee Rivers has observed signs outside and inside the building prohibiting drug use in the licensed premises. Kenneth Davis, a part-time handyman employed at the Manhattan Restaurant, assisted licensee Abner in making liquor purchases from distributors and, on occasion, from the ABC Liquor Lounge in Sarasota, Florida. Davis has observed several employees using licensee Abner's van. Employee Davis has listened to both the disc jockey and licensee Abner use the P.A. system to announce that there were to be no drugs consumed in the licensed premises. Employee Davis heard the conversation between Joel and licensee Abner regarding the exchange of the allegedly stolen liquor for drugs. Initially, Joel asked licensee Abner for $80 to purchase the allegedly stolen liquor. Licensee Abner refused, whereupon Joel returned for the second time and requested $60 to purchase the allegedly stolen liquor. Again, licensee Abner refused and, the third time, Joel requested $40 to purchase the liquor. Again, licensee Abner refused and, at that time, Joel asked to borrow $40 until he received his paycheck the following week. Licensee Abner loaned Joel the $40, and the exchange was made between Officer Hamilton and Joel outside the licensed premises. Later that evening, Joel asked the bartender to keep two bottles of Popov Vodka behind the bar. According to Davis, Smirnoff is the vodka principally sold by the licensee. Davis refers to licensee Abner as "Buddy." Joel asked Buddy to use the van to take the liquor home that he had purchased from Officer Hamilton. James Bowen, a bartender employed full-time at the Manhattan Restaurant, has been so employed since the club's inception approximately eight years ago. As part of his duties, bartender Bowen stops fights, serves drinks, and attempts to prohibit the use of drugs inside the licensed premises. Bartender Bowen kept two bottles of Popov Vodka for Joel behind the bar area. Joel Harris, a disc jockey employed full-time at the Manhattan Restaurant since approximately 1980, is familiar with Officer Hamilton. Joel met Officer Hamilton approximately four weeks prior to April 13, 1983, when he was introduced by another friend. Officer Hamilton asked Joel if he could assist him in getting some "girl." 3/ Joel admits to purchasing marijuana and cocaine for Officer Hamilton and confidential informant Sutton. Although Joel admits to purchasing marijuana and cocaine for Officer Hamilton, he insists that licensee Abner was unaware of such purchases and that they were not made in licensee Abner's presence. Further, Joel contends that when offered the exchange for the stolen liquor by Officer Hamilton, licensee Abner refused to purchase the allegedly stolen liquor and would not assist him in the purchase of same despite his attempts to do so on at least three occasions. Joel borrowed licensee Abner's van to transport the allegedly stolen liquor from the licensed premises to his apartment where he was to later have a party. Joel admits to having made a mistake in purchasing the allegedly stolen liquor and purchasing drugs for Officer Hamilton on the licensed premises; however, he states that licensee Abner should not be held responsible for his acts and/or conduct. Joel has been arrested and charged for the felony sale of a controlled substance to Officer Hamilton. Johnny Wilbur Abner, the licensee, is the owner/operator of the Manhattan Restaurant. Licensee Abner has operated the Manhattan Restaurant for approximately eight years. Licensee Abner has a policy of no drugs or loitering in his premises, and he further enforces a no loitering policy in the parking lot of his premises. Licensee Abner enforces that policy with and through his employees. Licensee Abner has evicted a number of patrons from the Manhattan Restaurant and recalled having done so as frequently as three (3) times each week. Additionally, licensee Abner has a policy to avoid dealing in stolen property entirely. He has not knowingly purchased any stolen liquor, nor has he been introduced to Officer Hamilton prior to the subject incident. Licensee Abner loans Joel money on a regular basis. Licensee Abner offered no explanation as to how the Popov Vodka got to his place, inasmuch as he does not sell Popov Vodka. Division Director Willingham's examination of the inventory taken when the Emergency Suspension and Notice to Show Cause were served upon the Respondent on April 13, 1983, revealed that there were, inter alia, four 1.75 liters of Popov liquor on the licensed premises on that date and that, in addition, there were two other bottles of Popov liquor which were seized by beverage agents during the serving of the Emergency Suspension Order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Respondent's alcoholic beverage license No. 68-442 SRX, Series 4-COP, be suspended for a period of ninety (90) days and that it pay a fine of $100 for each of seven (7) violations alleged in the Notice to Show Cause filed herein dated April 13, 1983. RECOMMENDED this 24th day of June, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, 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 24th day of June, 1983.
The Issue Whether or not on or about July 13, 1975, Arthur Hayes, Jr., licensed under the beverage laws, and or his agent, servant or employee did sell or permit to be sold, served or consumed alcoholic beverages, to wit: a quart bottle of Schlitz beer, any time otherwise not provided for by county or municipal ordinance, contrary to Florida Statutes 561.29 Whether or not on or about July 20, 1975, Arthur Hayes, Jr. licensed under the beverage laws and or his agent, servant or employee did sell or permit to be sold, served or consumed, alcoholic beverages, to wit: a quart bottle of Schlitz beer at a time otherwise not provided for by county or municipal ordinance, contrary to Florida Statutes 561.29.
Findings Of Fact In the presentation of its case, the petitioner called beverage agent Eugene Fogel to the stand. On or about July 13, 1975, agent Fogel was working for the Sanford, Florida, Police Department and in addition was acting in an undercover capacity for the Division of Beverage. At around 2:00 p.m. July 13, 1975, then police officer Fogel met with agent Herb Baker of the Division of Beverage in Sanford, Florida, for purposes of investigating alleged illegal alcoholic beverage sales which were being made on Sunday. The witness, Fogel, went to the address of Dinah's West Side Grocery, entered the store and purchased a quart bottle of Schlitz beer from the respondent, Arthur Hayes, Jr., This particular item of evidence became petitioner's exhibit 1 and is currently in the custody vault of the Division of Beverage District Office in Orlando, Florida. Testimony by agent Herb Baker indicated that the meeting as spoken of by agent Fogel had transpired, and he had seen agent Fogel enter the subject premises on July 13, 1975, and come out with a paper bag which contained petitioner's exhibit number 1. This exhibit was turned over to agent Baker. Officer Fogel testified that on Sunday, July 20, 1975, the same sequence of events occurred that had occurred on Sunday, July 13, 1975. He met agent Baker and then went to Dinah's West Side Grocery around 3:30 p.m. and purchased a quart bottle of Schlitz beer, which is petitioner's exhibit number 2. The petitioner's exhibit number 2 is now located in the custody of the District Office, Division of Beverage, Orlando, Florida. Again, agent Baker stated that he observed officer Fogel go into the premises on July 20, 1975, return with a bag and that the bag contained a quart bottle of Schlitz beer. The testimony was given by officer Fogel that July 13, 1975 and July 20, 1975, were Sundays. Other Petitioner's exhibits admitted into evidence were exhibit number 3 which is a notice to show cause with accompanying administrative complaint, exhibit 4 which is a notice of hearing, and exhibit 5 which is a copy of an ordinance in Seminole County, Florida. This ordinance was in effect on July 13, 1975 and July 20, 1975, and prohibited the sale of alcoholic beverages on any Sunday. The respondent took the stand in his own behalf and indicated that he knew Eugene Fogel in July of 1975, and knew that Eugene Fogel was a policemen with the Sanford Police Department. He stated that he therefore would not have sold beer to Officer Fogel on Sunday, because he knew such a sale would be illegal. The witness also stated that the only employees in his store were he and his wife and consequently the only explanation he could think of for the two quarts of beer, was that the policemen had stolen the beer from his freezer. He said this would have been easy since there was no lock on the beer freezer and it was close to the door. After assessing the testimony of the witnesses, together with the examination of the evidence it is determined that the violations as alleged in counts 1 and 2 in the administrative complaint have been proven. This determination is arrived at because it would not appear that there is any motive on the part of the two police officers to promote absolute falsehoods. On the other hand considering the interest of the respondent and the quality of his comments, he has not effectively explained or defended against the charges.
Recommendation For committing the offense as alleged in Count 1 of the Administrative Complaint, it is recommended that the respondent, Arthur Hayes Jr., have his license suspended for a period of 30 days. For committing the offense as alleged in Count 2 of the Administrative Complaint, it is recommended that the respondent, Arthur Hayes, Jr., pay a civil penalty in the amount of $150.00. DONE and ENTERED this 5th day of February, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation The Johns Building Tallahassee, Florida 32304 Arthur Hayes, Jr. 1717 West 18th Street Sanford, Florida ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF BEVERAGE IN RE: DINAH'S WEST SIDE GROCERY 1717 West 18th Street CASE NO. 75-2011 Sanford, Florida DABT CASE NO. 5-75-94-A License No. 69-139 /
