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.
The Issue Whether Respondent unlawfully discriminated against Petitioner.
Findings Of Fact For many years Mark Dunning Industries, Inc. (MDI), held the contract for trash removal and processing for Naval Air Station, Pensacola, Florida (NAS Pensacola). In the summer of 1995, the contract for these services, for a period beginning January 1996, were the subject of a bid solicitation. The apparent winner of the bid was Ohio Disposal Systems, Inc (ODSI). This bid was contested by MDI. Ultimately, ODSI prevailed in the bid contest and was selected to perform the contract. Performance was to begin on January 1, 1996, however, ODSI was not informed that it was to be the contractor until early December 1995. Petitioner was born on July 12, 1922. He is a U.S. citizen from Puerto Rico, and of Hispanic origin. Petitioner first came to be employed by MDI in the summer of 1994. Petitioner worked on the "hill," which is an elevated portion of the trash dump on board NAS Pensacola. It was his job to weld broken equipment. He also operated two kinds of equipment: a Bobcat, which is a small front-end loader, and a backhoe with a dozer blade mounted on the front. Petitioner was paid about $16.00 per hour as a welder. Victor Cantrel, Petitioner's friend, commenced employment with MDI in July 1995. He worked on the "hill" and also drove the Bobcat and the back-hoe. He would utilize this equipment to push trash into a compactor. In trash-handling parlance, he was known as a "hill man." He was not a welder. He worked closely with Petitioner. Mr. Cantrel was born on June 25, 1972, and is Anglo- American. He was paid about $9.00 per hour. The supervisor of Petitioner and Mr. Cantrel, during the latter months of 1995 while they were working for MDI, was Thomas Lucky. The principal of ODSI was Vince Crawford. On or about December 28, 1995, at the end of the workday, Mr. Lucky informed the employees, including Petitioner, Mr. Cantrel, and a number of trash truck drivers, that there was to be a meeting in the company office near the "hill." Present at the meeting in the office, which commenced around 6:30 p.m., was Petitioner, Mr. Cantrel, Mr. Lucky, several truck drivers, Mr. Crawford, and his wife Cathy. Mr. Crawford informed the assembled employees that he was bringing in all new equipment; that because there would be new equipment, the new employees of ODSI would be able to work 40 hours per week; and that due to the requirement to get his company in shape in time to meet the January 1, 1996, deadline, many of the employees of MDI would be offered jobs with ODSI. After revealing these preliminary matters, Mr. Crawford asked a man named Lee what he did at MDI; this man said that he was a truck driver. Mr. Crawford told him that he was hired with the new company. Then he asked Mr. Cantrel what he did; he said he drove the Bobcat. Mr. Crawford said, "Recycle, huh. You are hired." Mr. Cantrel subsequently filed an employment application. However, he knew that after the announcement at the meeting, he was going to work for ODSI. When Mr. Crawford inquired of two more people, they both responded, "truck driver," and Mr. Crawford informed them that they were hired. When he asked Petitioner, Petitioner said, "Welder." Mr. Crawford then said, "We don't need no welders here." This was the first and last encounter Petitioner had with Mr. Crawford. The next day Petitioner arrived at work at the usual time and was informed that he no longer was employed at that facility. On January 2, 1996, Petitioner presented an employment application to the office at ODSI seeking employment as a "Welder and/or Heavy Equip. Opr." He never received a response. No evidence was adduced that at that time there were job openings for a "welder and/or heavy equipment operator." Additionally, according to Petitioner, no one from ODSI informed Petitioner that he was not qualified. No evidence was adduced at the hearing which indicated that Mr. Crawford noticed that Petitioner was 73 years of age, or that he was a Puerto Rican, or that he was of Hispanic origin. The unrebutted evidence demonstrated that Petitioner was not hired, at the time jobs were available, because Mr. Crawford was bringing in new equipment. New equipment does not require frequent welding and, therefore, Mr. Crawford did not need a welder.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered finding Respondent committed no unlawful employment practice. DONE AND ENTERED this 28th day of March, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2002. COPIES FURNISHED: Bruce Committe, Esquire 17 South Palafox Place, Suite 322 Pensacola, Florida 32501 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 H. William Wasden, Esquire Pierce, Ledyard, Latta, Wasden & Bowron, P.C. Post Office Box 16046 Mobile, Alabama 36616 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether the Petitioner timely filed a complaint of discrimination in accordance with the provisions of Chapter 760, Florida Statutes (2009).
Findings Of Fact Prior to November 28, 2007, the Petitioner was employed by the Respondent. On November 26, 2008, the Petitioner sent a Technical Assistance Questionnaire (TAQ) to the Florida Commission on Human Relations (FCHR). The TAQ was submitted via facsimile transmission and was not signed. The Petitioner believed she was complying with the directives of the FCHR website and that follow-up assistance (from the FCHR) would not be required. The Petitioner did not understand that a signature was required, notwithstanding the place for same (along with a date) on page 2 of the TAQ. The Petitioner maintains that the FCHR website instructions were unclear and that she erroneously relied on the directions that did not specify she was required to sign the TAQ. The Petitioner filed a signed Charge of Discrimination with the FCHR on January 14, 2009. On February 5, 2009, the Petitioner received a "Notice of Receipt of Complaint" from the FCHR. At the same time, a copy of the complaint was furnished to the Respondent, who was then, presumably, put on notice of the Petitioner's charge. The FCHR did not advise the Petitioner that the TAQ had to be signed. In the course of its review of the instant charge, the FCHR entered a determination of "untimely." Per the FCHR's assessment, the charge of discrimination was filed more than 365 days from the last incident or act of discrimination. Thereafter, the Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against the Respondent. The Commission then forwarded the matter to the Division of Administrative Hearings for formal proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's claim of discrimination. DONE AND ENTERED this 29th day of September, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2009. COPIES FURNISHED: Mark Levitt, Esquire Allen, North & Blue 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Marie C. Perez 517 29th Street West Palm Beach, Florida 33407 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner is the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is Lillian Marie Reynolds, d/b/a Diamond Lil's, who currently operates under beverage license number 54-00573, Series 2-COP, at U.S. Highway #1, Lot #5, Big Coppitt Key, Monroe County, Florida. On August 7, 1986, the Monroe County Sheriff's Department and Petitioner began an undercover narcotics investigation entitled "Operation Sabre". As part of that investigation, two of Petitioner's beverage agents conducted surveillance of Respondent's licensed premises. On August 15, 1986, Petitioner's investigators, Deloach and Warner, entered this licensed premises. They met a patron known as "Ken" and discussed the purchase of marijuana. Subsequently, Ken sold Investigator Deloach approximately 3.4 grams of marijuana, in exchange for $10. This transaction occurred in plain view and took place in an open and notorious manner inside the licensed premises. On that same day Investigator Deloach was invited into the ladies' bathroom by two other patrons to use cocaine. He observed the patrons "snort" cocaine in the licensed premises. On August 16, 1986, Investigators Deloach and Warner reentered the licensed premises. Investigator Deloach was approached by the patron Ken regarding the sale of marijuana. During the conversation, Ken displayed a marijuana cigarette in plain view. Later in the evening, the investigators were approached by Steve Anderson, a member of the band that played at Diamond Lil's. Anderson discussed future sales of marijuana to the investigators. Anderson then sat on the floor just inside the front door of Diamond Lil's, rolled a marijuana cigarette, lit it, smoked it, and passed it to Investigator Deloach who simulated smoking it. On August 18, 1986, Investigators Deloach and Warner returned to the licensed premises. On this occasion, Respondent's son Kevin Blackburn was acting as the bartender/manager. The investigators were approached by Steve Anderson, who inquired whether they would be interested in purchasing some marijuana or cocaine. In response thereto, Investigator Deloach handed Anderson $10 for the purchase of some marijuana. However, Anderson later returned Investigator Deloach's money and stated that his supplier was not at home. On that same day the investigators approached Kevin Blackburn to inquire as to whether he could get them cocaine or marijuana. In response thereto, Blackburn stated that he had been on a "three day buzz" and that there were no drugs available at this time. The term "three day buzz" is a slang term which is generally understood to mean a narcotics-induced euphoria. Investigator Deloach also asked Blackburn to advise him when drugs became available. On August 19, 20 and 21, 1986, Investigators Deloach and Warner returned to the licensed premises. No actual drug purchases were made on these occasions; however, the investigators had loud conversations with Steve Anderson relative to the purchase of cocaine and marijuana. On August 22, 1986, Investigators Deloach and Warner returned to the licensed premises. On this occasion, the licensee and her son were sitting at the bar, facing the investigators, in the vicinity of a patron known as "Jackie Francesia". While at the bar, Investigator Deloach asked Jackie Francesia if he could purchase some cocaine. In response, Jackie Francesia sold Investigator Deloach one-half (1/2) gram of cocaine for $35. This transaction occurred in plain view and took place in an open and notorious manner, some fifteen feet from the licensee and her son. On August 25, 1986, Investigators Deloach and Warner returned to the licensed premises. Investigator Warner met with band member Steve Anderson to inquire as to the availability of marijuana. Anderson stated that he did not have any but that he would check in the bar for some. Anderson then left the immediate vicinity of Investigator Warner and approached Kevin Blackburn, who was tending bar. Investigator Warner observed Kevin Blackburn talking with Anderson and pointing out another patron, who was seated in the premises. Anderson went directly to that patron and spoke with the patron. Shortly thereafter, Anderson returned to Investigator Warner and told her that the cocaine was available but that his motorcycle was not running. Also on this date, the investigators observed three patrons standing just outside the main entrance of the licensed premises, smoking marijuana. On August 26, 1986, Investigators Deloach and Warner returned to the licensed premises. On this occasion, Kevin Blackburn was working behind the bar in a managerial capacity. The investigators met with Jackie Francesia to inquire as to the availability of cocaine. In response, Francesia handed Investigator Warner one-half gram of cocaine in exchange for $35. This transaction occurred in plain view and took place in an open and notorious manner in the licensed premises. After the cocaine delivery, Investigator Deloach approached Investigator Warner at the bar of the licensed premises and held out his wallet in full view of several patrons and Kevin Blackburn. Investigator Warner removed the cocaine from her pants pocket, held it up in plain view of Kevin Blackburn and placed it in Investigator Deloach's wallet. Subsequently, Investigator Deloach approached Kevin Blackburn and told him that he had just purchased cocaine from Jackie Francesia at the bar. In response thereto, Kevin Blackburn voiced his approval of the narcotics transaction occurring on the licensed premises. On August 28, 1986, Investigators Deloach and Warner returned to the licensed premises. Again, Kevin Blackburn was tending bar. The investigators approached Steve Anderson in the presence of Kevin Blackburn to inquire as to the availability of cocaine. Anderson stated that a patron known as "Miguel Vasguez" had some in his possession. Investigator Deloach then gave Anderson $40 for the purchase of cocaine. Anderson left the immediate vicinity of the investigators and returned shortly thereafter with one-half gram of cocaine. He then handed the cocaine to Investigator Deloach. This transaction occurred in plain view and took place in an open and notorious manner on the licensed premises. After taking delivery of the cocaine, Investigator Deloach again approached Kevin Blackburn and told him that he had just purchased cocaine in the licensed premises. Kevin Blackburn again acknowledged his approval of the narcotics transaction. In addition to being the licensee of record in the instant case, Lillian Marie Reynolds operates another premises which has an alcoholic beverage license and at which business she spent almost all of her time. Sometime prior to the commencement of "Operation Sabre", Reynolds turned over the management of Diamond Lil's to her son Kevin Blackburn. Although Reynolds was only present during one of the drug transactions described above, Blackburn was present during most of the others. Neither Reynolds nor Blackburn voiced any disapproval of the drug transactions taking place in Diamond Lil's. Furthermore, Reynolds admitted she had given no specific directions to her son regarding prohibiting drug use or transactions in the premises even though she had told the Sheriff prior to "Operation Sabre" that drug dealing might be taking place in Diamond Lil's.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained within the Notice to Show Cause and assessing a civil penalty against Respondent in the amount of $5,000. DONE and RECOMMENDED this 4th day of December, 1987, at Tallahassee, Florida. LINDA M. RIGOT, 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 4th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2095 Petitioner's Proposed Findings of Fact numbered 1-14 and the first two sentences of finding numbered 15 have been adopted verbatim or in substance in this Recommended Order. The remainder of finding numbered 15, however, has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. Respondent's Proposed Findings of Fact numbered 1, 2, and 4-7 have been adopted in this Recommended Order either verbatim or in substance. The remainder of Respondent's Proposed Findings of Fact have been rejected as follows: 3 and 9 as being immaterial to the issues under consideration herein; 12 as being contrary to the evidence in this cause; and 8, 10, 11, and 13 as not being supported by the evidence herein. COPIES FURNISHED: Daniel Bosanko, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 John P. Rotolo, Esquire 627 Whitehead Street Key West, Florida 33040 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Respondent, Everett R. Rogers d/b/a Circus Bar (Respondent), has been licensed by Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), to sell alcoholic beverages under License No. 39- 602, Series 2-COP, for licensed premises located at 1118 West Kennedy Boulevard, Tampa, Florida, at all times pertinent to this case. Respondent's most recent license expired by its terms on September 30, 1985. Respondent voluntarily closed the business operated under his license on or about February 2, 1985. On or about February 2, 1985, Respondent initiated personal bankruptcy proceedings which encompassed the business which he was operating at the licensed premises. The licensed premises and Respondent's license have been turned over to Respondent's trustee in bankruptcy. On February 2, 1984, three marijuana cigarettes were possessed, sold and delivered at the licensed premises with the knowledge of Respondent's bartender, Bobby Warner.2 On February 3, 1984, the licensed premises were visited by a person named Melvin Stusse and undercover police officer Paul Miller for the purpose of the sale of cocaine, although no sale took place. On February 3, 1984, three grams of marijuana were possessed, sold and delivered at the licensed premises. On February 3, 1984, undercover police officer Thomas Kinsella possessed marijuana on the licensed premises with the knowledge of bartender Warner. Kinsella asked Warner for something in which to place a baggie of marijuana, and Warner took Kinsella to the stockroom to give him a paper clip box for that purpose. On February 6, 1984, bartender Warner and patrons of the licensed premises gambled on the pool table in the licensed premises. On February 8, 1984, the sale of eight marijuana cigarettes was negotiated at the bar in the licensed premises but the delivery took place outside the premises and there was no evidence that the marijuana was possessed in the licensed premises. On February 9, 1984, three marijuana cigarettes were sold, delivered and possessed at the licensed premises with the knowledge of Respondent's manager, Joan Sammons. On February 13, 1984, the sale of approximately two and one-half grams of marijuana was negotiated at the licensed premises with the knowledge of bartender Warner. The marijuana was delivered outside the licensed premises, and there was no evidence that marijuana was possessed on the licensed premises. On February 24, 1984, six marijuana cigarettes were sold, possessed and delivered on the licensed premises with the knowledge of manager Sammons. On February 28, 1984, approximately two and one-half grams of marijuana were sold, possessed and delivered on the licensed premises with the knowledge of bartender Warner. On March 5, 1984, bartender Warner possessed, sold and delivered five marijuana cigarettes on the licensed premises. On March 6, 1984, manager Sammons sold, possessed and delivered approximately two grams of marijuana on the licensed premises. On March 7, 1984, manager Sammons purchased $50.00 worth of USDA food stamp coupons for $25.00 on the licensed premises. On March 19, 1984, manager Sammons purchased $150.00 worth of USDA food stamp coupons for $75.00 on the licensed premises. Also on March 19, 1984, four marijuana cigarettes were possessed, sold and delivered on the licensed premises with the knowledge of manager Sammons. On March 21, 1984, approximately 1.2 grams of marijuana were possessed, sold and delivered on the licensed premises. It was not proved that any of Respondent's employees were aware of this transaction. On March 30, 1984, Respondent's bartender, Steve Keller, possessed, sold and delivered approximately three and one-half grams of marijuana on the licensed premises. Manager Sammons also knew about this transaction. Respondent had a policy against illegal drug activity and gambling on the licensed premises. He enforced the policy when he was on the licensed premises. Respondent posted signs prohibiting gambling and told employees that they should evict patrons suspected of illegal drug activities or gambling. But Respondent did little or nothing to ensure that his policies were followed evenings and weekends when he was not present at the licensed premises. Respondent performed no background checks on his employees and continued to employ Sammons as his manager although he knew she had been arrested. Respondent had no written employment application or written instructions for his employees. Respondent did not polygraph his employees.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking alcoholic beverage license number 39-602, Series 2-COP, held by Respondent, Everett R. Rogers d/b/a Circus Bar, 1118 W. Kennedy Blvd., Tampa, Florida. RECOMMENDED this 19th day of December, 1985, in Tallahassee, Florida. L LAWRENCE JOHNSTON 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 19th day of December, 1985.
Findings Of Fact Based upon the stipulation of the parties, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: On February 17, 1990, Frank Vitale was arrested at or near the ABC Liquors at 3097 Curry Ford Road, Orlando, Florida for trafficking in cocaine (400 grams or more). On February 17, 1990, Noel Frederick Shumann was arrested at or near the ABC Liquors (ABC) at 3097 Curry Ford Road, Orlando, Florida for trafficking in cocaine (400 grams or more). Noel Frederick Shumann was acquitted for both the charges of trafficking in cocaine and conspiracy to traffic in cocaine on May 2, 1991. Noel Frederick Shumann was present at the ABC on February 17, 1990. Noel Frederick Shumann denies that he was involved in any illegal drug transactions; however, he admits that an illegal drug transaction occurred on February 17, 1990 at the ABC. Frank Vitale, who was convicted of the charges, testified on behalf of Noel Frederick Shumann at the criminal proceeding. Mr. Vitale's testimony is as follows: That the money used to purchase the estimated retail value of cocaine of $9,400.00 was in fact Mr. Vitale's money. That Mr. Vitale had accumulated this money from the sale of an interest in some green houses and monies from the sale of jewelry from his flea market business. He stored the money at Mr. Shumann's house while living there for a brief period of time. On February 17, 1990, he called Mr. Shumann and asked Mr. Shumann to bring envelopes containing the money to the ABC Lounge. Mr. Vitale was not living at Mr. Shumann's house at the time he called Mr. Shumann and asked him to bring the envelope containing the money to the ABC Lounge. These envelopes were stored in the bedroom Mr. Vitale resided in while living in Mr. Shumann's house. Mr. Shumann acquiesced with Mr. Vitale's request. Mr. Vitale further testified that Mr. Shumann had nothing to do with the drug transaction, did not know there was a drug transaction taking place at the ABC Lounge until such time as he arrived and remained at the lounge for a period of time. Mr. Vitale further testified that Mr. Shumann was not to share in the cocaine or any expected profits from the sale of the cocaine. The drug transaction involved 500 grams of cocaine. The estimated retail value of the cocaine was $9,400.00. The money used to purchase the cocaine was in Noel Frederick Shumann's vehicle. Mr. Shumann was assessed on February 26, 1990, pursuant to Section 212.0505, Florida Statutes, for the delinquent tax, penalty and interest relating to the drug transaction which took place on February 17, 1990. The jeopardy assessment is a correct and proper assessment both as to form and content of an illegal drug transaction involving cocaine with the retail value of $9,400.00. Mr. Shumann does not contest the mathematical accuracy of the tax assessment nor the procedures followed in issuing the notice. Mr. Shumann has not paid the sales tax assessed and the amount claimed has not been paid by another on his behalf. Mr. Shumann asserts that the assessment is improper only because he was not personally involved in the illegal transaction and, therefore, committed no act to give rise to the tax. Consequently, he argues the assessment against him should be dismissed. Prior to February 17, 1990, Agent Cannon, an undercover narcotics investigator, was introduced to Frank Vitale. Mr. Vitale met Agent Cannon through a third party, a confidential informant, named Barbara Anderson. Ms. Anderson advised Agent Cannon that Mr. Vitale wanted to purchase cocaine. Ms. Anderson had known Mr. Vitale for some time prior to February 17, 1990. On some occasion prior to February 17, 1990, Mr. Vitale spoke to Ms. Anderson regarding his partner in the drug transaction. When Noel Frederick Shumann arrived at the ABC on February 17, 1990, Mr. Vitale introduced Mr. Shumann to Ms. Anderson as "his partner." Because he remained present during the activities that followed, and because he told Ms. Anderson that he was there to keep an eye on his money, Ms. Anderson presumed Mr. Shumann was the partner in the drug transaction to whom Mr. Vitale had earlier referred. When Agent Cannon arrived to complete the drug transaction, Mr. Vitale introduced Mr. Shumann to him as his partner but maintained he (Vitale) would be handling the deal. In fact, Mr. Vitale became very upset any time Agent Cannon attempted to speak with Mr. Shumann instead of dealing with him exclusively. At one point in time, Agent Cannon threatened to abort the transaction since Mr. Vitale would not let him count the money. The money, which was stored in Mr. Shumann's car at that time, was not counted until Mr. Shumann told Mr. Vitale to let Agent Cannon count the money. Mr. Shumann was aware that Mr. Vitale was attempting to purchase cocaine from Agent Cannon and was aware that the money to be utilized in that purchase was in his (Shumann's) car. During a second conversation, Mr. Shumann directed Mr. Vitale to weigh and test the cocaine to be purchased and to proceed with the transaction if the substance looked good. Mr. Vitale then left the lounge with Agent Cannon and proceeded across the street to the van where Agent Cannon's partner was located with the drugs. Following the exchange of the money for the cocaine, Mr. Vitale was placed under arrest and the MBI team converged. Subsequently, Mr. Vitale and Mr. Shumann were placed in a police patrol car that was wired to record their conversation. The taped conversation (Petitioner's exhibit 1) contains statements by Mr. Vitale to the effect that he knew the police were listening, that he was sorry to get Mr. Shumann into "this," and that Mr. Shumann should "put everything on me (Vitale)." During the counting of the money, the weighing and testing of the cocaine, and the sale and purchase of the cocaine between Agent Cannon and Mr. Vitale, Mr. Shumann remained in the lounge. Mr. Shumann continued to talk to Ms. Anderson even though he knew a cocaine transaction was proceeding, knew that he had been introduced as Mr. Vitale's partner, knew that the money for the transaction was stored first in his house then in his vehicle, and knew that the supplier (Agent Cannon) had sought authorization from him to count the money and complete the deal. It is wholly incredible to conclude that a disinterested party would have remained in the lounge throughout the foregoing events. Cocaine is a controlled substance as defined by Florida law.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Revenue enter a final order confirming the notice of assessment and jeopardy findings and finding the amount due to be $10,575.00 plus interest (1% per month until paid). DONE and ENTERED this 5th day of May, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1992. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. Petitioner submitted proposed findings in a form such that rulings cannot be entered. Petitioner summarized: the testimony of Chuck Cannon; the testimony of Mr. Shumann; the patrol car tape (Petitioner's ex. 1); the stipulated statements of facts submitted by the parties; the deposition of Vernon Taylor; and the testimony of Barbara Anderson. Such summaries did not present paragraphs with factual allegations in a form such that specific rulings can be made. Such summaries included argument, irrelevant information and comment on the evidence. Except as set forth in the findings of fact above, they must be rejected as not supported by the weight of credible evidence or as argument. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Respondent listed the stipulated facts submitted by the parties. They have been accepted and incorporated in the foregoing recommended order as findings of fact. As to the proposed findings of fact submitted by Respondent, which began on page 4 of the proposed order, the following specific rulings are given. Paragraphs 1 through 9 are accepted. With regard to paragraph 10, it is accepted that Mr. Vitale introduced Mr. Shumann to Ms. Anderson as his partner. It is not accepted that he specifically told Ms. Anderson that Mr. Shumann was his partner in this drug transaction. That factual conclusion has been reached based upon a preponderance of all evidence presented in this case. Paragraphs 11 through 20 are accepted. Copies to: Robert J. Buonauro 14 E. Washington Street Suite 602 Orlando, Florida 32801 James McAuley Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Vicki Weber General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact During the month of April in 1988, and perhaps also in March of that year, the Petitioner, Sam Anthony Ciotti, conspired with others to purchase 200 pounds of marijuana in Broward County, Florida, for $110,000.00 The conspirators intended to transport the 200 pounds of marijuana to Ohio, where they expected to sell the marijuana to others. Unbeknownst to the conspirators, the persons from whom they arranged to purchase the marijuana were detectives of the City of Fort Lauderdale Police Department. The negotiations for the sale were primarily between the detectives and a conspirator named Klenner. The basic terms of the agreement were that the detectives would deliver 200 pounds of marijuana to Klenner or to someone designated by Klenner, Klenner would then transport the marijuana to Ohio and sell it, and once he received the money for selling the marijuana, Klenner would pay $110,000.00 to one of the detectives. To secure the deal, Klenner agreed that he and the Petitioner, Ciotti, would sign a promissory note for $110,000.00 secured by a boat co-owned by Klenner and Ciotti. On April 14, 1988, one of the detectives met with the Petitioner, Ciotti, at the boat yard where the boat was. docked. During that meeting the detective confirmed with Ciotti that a promissory note would be signed for 200 pounds of marijuana and that the boat would be collateral for the promissory note. On April 15, 1988, the two detectives met with Klenner and Ciotti, at which time Klenner delivered to one of the detectives a promissory note in the amount of $110,000.00 signed by both Klenner and Ciotti. On April 19, 1988, one of the detectives spoke to Klenner and arrangements were made for the marijuana to be delivered to a third conspirator named Bradford. Later that day the two detectives met Bradford at a prearranged location. One of the detectives took possession of Bradford's motor vehicle, loaded it with 200 pounds of marijuana, and returned the motor vehicle and its cargo of marijuana to Bradford. The trunk was opened and Bradford examined the marijuana cargo. Bradford then took possession of his motor vehicle and attempted to drive away with the 200 pounds of marijuana. At that point, he was arrested. Later that same day, the detectives went to the boat yard where the boat owned by Klenner and Ciotti was docked, where they arrested Ciotti and seized the boat owned by Klenner and Ciotti. On June 8, 1989, the Department of Revenue issued a document titled Notice Of Assessment And Jeopardy Findings which assessed tax, penalties, and interest in the amount of $52,534.42 against the Petitioner, Ciotti, pursuant to Section 212.0505, Florida Statutes (1987). The factual basis for the assessment was the Petitioner's involvement in the marijuana transaction described in the foregoing findings of fact. Following other unsuccessful efforts to resolve the matter, the Petitioner ultimately filed a timely petition seeking a formal hearing. At the formal hearing in this case on September 28, 1990, the Department of Revenue delivered to the Petitioner a document dated September 27, 1990, titled Revised Notice Of Assessment And Jeopardy Findings. The significant difference between the original assessment and the "revised" assessment is that in the latter document the Department seeks to recover less than in the original assessment. Specifically, the "revised" assessment contains a lower estimated retail price than on the original assessment and eliminates a fifty percent penalty that was included on the original assessment. These changes are consistent with the Department's current policies regarding the assessment of taxes, penalties, and interest. The net difference between the two assessment documents is a reduction of $18,809.39 in the amount sought by the Department. The specific amounts assessed in the "revised" assessment are as follows: Tax, $22,000.00; Penalty, $5,500,00; and Interest, $6,225.03; for a total of $33,725.03. Interest continues to accrue at the rate of $7.23 per day. The factual predicate for the "revised" assessment is the same as that of the original assessment.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Department of Revenue issue a final order in this case concluding that the Petitioner, Sam Anthony Ciotti, is liable for taxes, penalties, and interest pursuant to Section 212.0505, Florida Statutes (1987), and assessing the amount of such liability at $33,725.03, plus interest at the rate of $7.23 per day since September 28, 1990. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of February 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February 1991.
Findings Of Fact At all times material hereto, Respondent, Horace Clare, was the holder of alcohol beverage license #63-01368, series 2-COP, for the licensed premises known as Campbell's Restaurant situated at 1305 North 11th Street, Haines City, Polk County, Florida. Petitioner used an undercover agent, C.I., who was directed to attempt to purchase controlled substances from the licensed premises. On January 24, 1992, at approximately 7:35 p.m., C.I. contacted an individual to ascertain if "weed" was available to purchase at the licensed premises. Sgt. Spicer of the Haines City Police Department was assigned to insure that the confidential informant, "Snoops" was under constant eye surveillance. Spicer was given $20 by the Haines City Police Department while under the surveillance of Sgt. Spicer. Spicer searched the C.I.'s person and insured that the C.I. was not given any additional monies. The C.I. entered the licensed premises and was introduced to a woman whose nickname was "Snoops", later known as Mary Allen. The C.I. went directly to the kitchen and tendered Snoops the $20 dollar bill she was given by Spicer. Snoops went into the kitchen area and returned with a small packet of marijuana in exchange for the $20 dollar bill. The C.I. left the licensed premises and returned to the area of Officer Alexander of the Haines City Police Department. The C.I. was again searched and possessed only the marijuana which she gave to Spicer. On January 25, 1992 at approximately 7:17 p.m., the confidential informant again met with Sergeant Spicer for the purpose of making a controlled purchase of marijuana. Sergeant Spicer searched and observed the confidential informant in the same manner as she had on the evening of January 24, 1992. Spicer gave the C.I. $20.00 and watched the C.I. from her vehicle until she entered the licensed premises. The C.I. contacted Snoops, tendered her $20.00 whereupon Snoops went into the kitchen area and returned with a small packet of marijuana which she retrieved from her purse. Snoops exchanged the marijuana for the $20.00 that the C.I. had given her. The C.I. left the licensed premises and immediately contacted Sergeant Spicer whereupon she tendered the marijuana to her. On or about January 26, 1992 at approximately 6:53 p.m., the confidential informant again met with Sergeant Spicer of the Haines City Police Department. She was searched to determine if she had any controlled substances on her person and also to ascertain that she had no additional monies. Sergeant Spicer again gave the C.I. $20.00 for the purpose of making a controlled purchase of marijuana from the licensed premises. Upon entering the licensed premises, the C.I. met with Respondent and handed him $20.00. Respondent reached under the cash register and retrieved a small packet of marijuana from a brown bag which he then gave to the C.I. The C.I. left the licensed premises and turned the marijuana over to Sergeant Spicer. The C.I. described Respondent and identified him at the hearing. Sergeant Spicer next directed Officer Mervin Stewart to go to the licensed premises and ascertain the identity of Respondent. Officer Stewart, as directed, encountered Respondent and asked him for identification. Respondent identified himself to officer Stewart as the owner of the licensed premises. On January 29, 1992, the Haines City Police Department executed a search warrant at the licensed premises with the assistance of the Polk County Sheriff's Office. An employee named Mary Allen a/k/a "Snoops" was present during the search. The search resulted in the discovery of 21 packets of marijuana, five packets of rolling papers and three packets of cocaine and several "baggies". In addition, several containers of money were found as well as $120.00 that was found in the wicker purse with the marijuana. A narcotics dog assisted in the search of the licensed premises for the presence of controlled substances. The narcotics dog alerted to the presence of a controlled substance in an envelope containing money from the licensed premises evidencing that the subject money had been in contact with controlled substances. Each of the packets purchased by the C.I. were tested with a presumptive field test by Sergeant Spicer. Each packet tested positive for the presence of marijuana. Likewise, each packet had the odor, appearance and packaging common to marijuana. Each packet was sent to the Florida Department of Law Enforcement for analysis and each packet tested positive for marijuana, a controlled substance. Likewise, the cocaine from the licensed premises also field tested positive for the presence of cocaine and upon subsequent laboratory analysis, tested positive for cocaine. Rolling papers are commonly used to roll marijuana cigarettes or loose tobacco cigarettes. No loose tobacco was found on the licensed premises. The empty baggies seized in the house and the licensed premises were identical to those used to package marijuana. Consequently, the rolling papers and the baggies are drug paraphernalia. The licensed premises is 651 feet and 8 inches from the Bethune Elementary School in Haines City. A consensual seal search was conducted of Respondent's home which was shared by Mary Allen. That search resulted in the seizure of fifty packets of marijuana, a number of empty baggies and a scale. The marijuana was located in the master bedroom. Respondent has lived with Mary Allen for ten years. At the hearing, Respondent also acknowledged that he lived with and worked with Mary Allen whose nickname is "Snoops".
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order revoking Respondent's alcoholic beverage license at the licensed premises, to wit, Horace Clare, d/b/a Campbell's Restaurant, license number 63-01368, Series 2-COP. DONE and ORDERED this 11th day of January, 1993, in Tallahassee, Leon County, Florida. 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 11th day of January, 1993. COPIES FURNISHED: NANCY C WALLER ESQ ASST GENERAL COUNSEL DEPT OF BUSINESS REGULATION 725 S BRONOUGH ST TALLAHASSEE FL 32399 1007 HORACE CLARE CAMPBELL'S RESTAURANT 1305 N 11TH ST HAINES CITY FL 33844 RICHARD W SCULLY DIRECTOR DIVISION OF HOTELS & RESTAURANTS 725 S BRONOUGH ST TALLAHASSEE FL 32399 1007 DONALD D CONN ESQ GENERAL COUNSEL DEPT OF BUSINESS REGULATION 725 S BRONOUGH ST TALLAHASSEE FL 32399 1007
