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 has fostered, condoned, and/or negligently overlooked trafficking in and use of illegal narcotics and controlled substances on or about the licensed premises. Whether Respondent has failed to exercise due diligence in supervising his employees and managing his licensed premises so as to prevent the illegal trafficking and use of narcotics on the licensed premises. Whether Respondent may transfer his alcoholic beverage license to a qualified licensee or if it should be permanently revoked.
Findings Of Fact Respondent is the holder of alcoholic beverage license number 69-0876, series 2-COP, for a licensed premises known as Stormy Norman's, which is located at 3006 South U.S. 17- 92, Casselberry, Seminole County, Florida. On March 13, 1990, five patrons were observed passing and smoking a marijuana cigarette, just outside the rear door on the "patio". The "patio" is a fenced-in, partially covered area, which contains picnic tables and is located immediately behind the licensed premises. The patio is primarily accessible through the rear door of the licensed premises, which is usually left open during business hours. However, access could be made to the patio through the back of the premises onto the patio without knowledge of the Respondent as to who was there or what activity was going on. On March 13, 1990, a patron known as "Billy" sold marijuana to two different patrons on the patio. Subsequently, other patrons were observed dividing up marijuana into plastic bags, rolling "joints" and smoking marijuana on the patio. During this time, the rear door of the licensed premises was open and the smoke from the marijuana cigarettes was easily detectable inside the premises. Also, inside the licenses premises, several patrons openly discussed the purchase and consumption of controlled substances in the presence of employees. On March 14, 1990, a patron known as "Kelly" sold a plastic bag containing marijuana for the sum of $35.00. The sale was discussed in the presence of the bartender known as "Gordie". After this transaction, Kelly offered to sell large quantities of cocaine to Petitioner's investigators. On March 15, 1990, while Respondent was on the premises, several patrons rolled "joints", manufactured a "pipe" and smoked marijuana on the patio. These patrons would freely enter and depart the licensed premises from the patio and did nothing to conceal their activities. Inside the licensed premises, the patrons openly discussed the use of controlled substances and extended invitations to other patrons to consume the same on the patio. In addition, Kelly openly sold a baggy of marijuana to a patron, in plain view and in the presence of several other patrons and bartender Gordie. On March 20, 1990, several patrons were rolling and smoking marijuana cigarettes on the patio. A patron known as "Rabbit" sold and delivered marijuana to another patron known as "Stan". During this time, Respondent was on the licensed premises and was in a position to detect the use of controlled substances. On March 21, 1990, a patron Billy gave Petitioner's investigator a muscle relaxant in exchange for a beer, while in the presence of bartender Gordie at the licensed premises. During this time, Respondent was playing darts near the rear door of the licensed premises and was observed looking out the rear door and watching patrons smoke marijuana. While doing so, several patrons were heard to yell "He's out back doing drugs," in response to bartender Gordie's inquiry about another patron. On March 22, 1990, Petitioner's investigators made two controlled buys of marijuana while on the patio. One of the sellers was Respondent's day manager, known as "Little Dave". On the same date, while Respondent was on the licensed premises, several patrons were observed smoking marijuana on the patio, and other patrons were observed in possession of plastic bags containing marijuana inside the licensed premises. On March 28, 1990, Petitioner's investigator made a controlled buy of marijuana from Respondent's day manager, Little Dave. Just prior to this sale, the bartender known as "Cookie" was asked to make change for a marijuana purchase. In response thereto, Cookie smiled and freely made change for a twenty dollar bill. On this occasion, patrons openly smoked marijuana on the patio, the odor of which was easily detectable inside the licensed premises. On April 4, 1990, patrons were smoking marijuana on the patio, and the bartender Cookie had open conversations regarding the use of cocaine. On April 10, 1990, patron Stan sold marijuana on the patio to two patrons. On April 12, 1990, a patron known as "Fred" approached the bar to purchase a beer. While at the bar, Fred openly displayed two small white pills and a small quantity of marijuana on the bar counter in the presence of bartender Gordie. Subsequently, Fred went to the patio, where he was observed selling white pills to patrons, which were later determined to be "white- crosses". On April 18, 1990, several patrons were observed rolling and smoking marijuana cigarettes. On April 19, 1990, Respondent's day manager, Little Dave, sold a small plastic bag containing marijuana to Petitioner's investigator for $35 while on the patio. Throughout this transaction, there was a young boy, approximately 8 years of age, playing on the patio. Also, bartender Cookie went to the patio on three occasions while on duty to smoke a marijuana cigarette. On one occasion she was observed blowing marijuana smoke at bartender Gordie's face. During this general time period, Respondent was on the patio while several patrons were smoking marijuana. On April 24, 1990, Petitioner's investigator made a purchase of a small bag of marijuana in plain view of the bar while on the licensed premises. On April 25, 1990, several patrons were observed smoking marijuana on the patio of the licensed premises. At no time throughout the entire investigation did the licensee or any of his employees do or say anything to prevent employees from using or selling controlled substances on the licensed premises. The Respondent did not participate in the sale of any controlled substances or drugs, nor did he witness the sale of drugs at any time during the course of the investigation. Respondent was aware of customers smoking marijuana on the patio on several occasions and did not evict them from the premises. Respondent did ask Little Dave to leave the property on divers occasions when it was discovered that he was selling marijuana, but he was allowed to return to the premises. Respondent was taken advantage of by his friends and customers and was not aware that drug use was so prevalent, although he did know that at times some marijuana smoking was going on. Respondent seeks to transfer his beverage license, as provided by Section 561.3 2, Florida Statutes, to Elizabeth Ann Allen of Casselberry, Florida, who would qualify for a temporary license upon application for transfer as provided in Section 561.331, Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent's Alcoholic Beverage License Number 69- 0876, Series 2-COP be REVOKED. DONE AND ENTERED this 4th day of September, 1990, in Tallahassee, Leon County, Florida. DANIEL N. KILBRIDE 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 4 day of September, 1990. COPIES FURNISHED: Thomas A. Klein Assistant General Counsel Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000 Mark E. NeJame, Esquire 1520 E. Amelia Street Orlando, FL 32803 Leonard Ivey Director, DABT Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000 Joseph A. Sole Secretary Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000
The Issue Whether the Respondent's beverage license should be revoked or suspended?
Findings Of Fact The Petitioner is the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. (Stipulated Fact). The Respondent is John Timmons, Jr., d/b/a Harold's Grocery. (Stipulated Fact). The Respondent, at all times relevant to this proceeding, operated a grocery store where beer and wine was sold under beverage license number 23-1197, Series 2-APS. (Stipulated Fact). The Respondent's licensed premises is located at 17347 Homestead Avenue, Miami, Dade County, Florida. (Stipulated Fact). On September 21, 1962, the Respondent applied for a transfer of the subject beverage license to its current location. Included with the transfer application was a "Sketch of Licensed Premises." In pertinent part, the licensed premises was identified as follows: Based upon the Sketch of the Licensed Premises submitted by the Respondent to the Petitioner, the licensed premises consisted of only a portion of the building located in the northern part of the building. The southern portion of the building consisted of a pool hall which was not identified as a part of the licensed premises. The Respondent owned the entire building. The pool hall is identified above by the dotted lines. The dotted lines were not a part of the Sketch of the Licensed Premises. The Respondent agreed as an incidence of filing the transfer application that any alterations or additions to the licensed premises could be inspected in the same manner as the portion of the licensed premises identified- on the Sketch of the Licensed Premises. The Respondent subsequently made substantial alterations to the building. The portion of the building formerly used for the pool hall has been incorporated, at least in part, into the portion of the building used by the Respondent in his business. The building and its uses during the period of time at issue in this proceeding consisted of the following: The portion of the building to the south of the dotted line is the area where the pool "all was located. That area is now used as a storeroom, the Respondent's living quarters and as a part of the store. The area of the building identified as a part of the store and the storeroom are part of the licensed premises. The area of the building identified as the Respondent's living quarters is not a part of the licensed premises. This area is used exclusively by the Respondent as his personal residence. Although there is access through a door from the living quarters into the store, the living quarters were not readily accessible by anyone except the Respondent and his personal guests. Employees of the Respondent and patrons did not go into the Respondent's living quarters. No business was conducted in the living quarters. On or before February 10, 1983, the Metro-Dade Police Department (hereinafter referred to as "MDPD") began an undercover narcotics investigation of the Respondent. On February 10, 1983, MDPD Sergeant Ed Howett searched a confidential informant, gave the informant $10.00 and watched him enter the licensed premises. `When the informant left the licensed premises, the informant was in possession of marijuana and did not have the $10.00 given to him or her. The informant had purchased the marijuana from someone in the Respondent's building. Based upon the sworn affidavits of two MDPD officers as to the reliability of the confidential informant and the events of February 10, 1983, a search warrant for the Respondent's building was issued on February 11, 1983, by the Honorable Judge Alan Kornblum. On February 15, 1983, MDPD Detective Ricky Smith entered the licensed premises. (Stipulated Fact). Detective Smith was not in uniform. Detective Smith approached Mary Williams, an employee of the Respondent, who was behind the counter on the licensed premises. Detective Smith purchased $2.00 worth of marijuana (2 marijuana cigarettes) from Mary Williams. (Stipulated Fact). Shortly after Detective Smith's purchase of marijuana, MDPD officers entered the licensed premises to execute the search warrant issued on February 11, 1983. (Stipulated Fact). The search warrant applied to the entire building. At the time of the search Mary Williams, Henry Timmons and the Respondent were present on the licensed premises. (Stipulated Fact). Henry Timmons was behind the counter on the licensed premises. (Stipulated Fact). Henry Timmons is the Respondent's brother and was an employee of the Respondent. Located at the cash register closest to the front door was Mary Williams. (Stipulated Fact). The Respondent was located on a patio with Cary Lou Harris. The patio was outside the Respondent's living quarters and was accessible from the living quarters. The Respondent and his brother have similar facial hair. People have confused the Respondent and his brother. Detective Smith and MDPD Detective Preston Lucas, however, were able to distinguish the Respondent from his brother. Detective Smith grew up in the area where the Respondent's store is located and was familiar enough with the Respondent to recognize him. During the execution of the search warrant, approximately 100 marijuana cigarettes and several separate bags of marijuana were found in plain view on the counter on the licensed premises. (Stipulated Fact). Marijuana was also found in Henry Timmons' back pocket. (Stipulated Fact). The Respondent was surrounded to the area of the licensed premises where the police officers had entered. After discovering the marijuana on the counter, the Respondent was asked by the police if that was all of the marijuana. The Respondent replied "yeah, that should be all of it." (Stipulated Fact). Henry Timmons accompanied police officers to the storeroom at the back of the licensed premises. Although Henry Timmons worked in the storeroom, he lied when he indicated that he was unable to find the light switch. Therefore, the Respondent went to the storeroom and turned the light on. Additional bags of marijuana were found in the storeroom (Stipulated Fact). "Then these additional bags were found the Respondent stated that "well, now you really got it all." (Stipulated Fact). Based upon the Respondent's statements to police during the execution of the search warrant, it is clear that the Respondent knew that marijuana was located on the licensed premises. On three separate occasions (March 2, 4 and 28, 1983) MDPD officers entered the licensed premises in an attempt to purchase marijuana from an employee. (Stipulated Fact). On each of the occasions, the employee referred the officers to Larry Wilcox, an individual who was standing outside the licensed premises. (Stipulated Fact). On each of the occasions, the officer purchased marijuana from Larry Wilcox, who retrieved it from a brown paper bag which was stored behind an ice machine in front of the licensed premises. (Stipulated Fact). On March 2, 1983, Detective Smith entered the licensed premises and asked Mary Williams, who was still employed by the Respondent, if he could buy marijuana. Mary Williams pointed to Larry Wilcox, who was standing outside the licensed premises. The Respondent did not witness this event. Detective Smith left the licensed premises and approached Larry Wilcox. Wilcox, who was never employed by the Respondent, sold marijuana to Detective Smith. The marijuana was obtained from a bag retrieved by Larry Wilcox from behind the tee machine which "`as located outside of the licensed premises. No evidence was presented as to who owned the ice machine. On March 4, 1983, Detective Smith and Detective Lucas returned to the licensed premises. They drove up to the curb of the street in front of the licensed premises. The evidence does not show which employee (as stipulated to by the parties) referred Detective Smith to Wilcox on this occasion. Detective Smith approached Larry `Wilcox who was standing on the sidewalk in front of the licensed premises. Detective Smith again purchased marijuana from Larry Wilcox. The marijuana was retrieved from behind the ice machine. The Respondent and Henry Timmons were present on the sidewalk in front of the licensed premises during the March 4, 1983 purchase. The Respondent was close enough to witness the transaction. On March 28, 1983, Detective Smith returned to the licensed premises. He entered the licensed premises and approached the Respondent and Larry Wilcox, who were standing inside the licensed premises. Mary Williams was behind the counter. Detective Smith announced to no one in particular that he wished to buy some marijuana. Again, the evidence does not prove which employee referred the officer to Larry Wilcox. The evidence does prove that the Respondent pointed to Larry Wilcox in response to Detective Smith's question. Larry Wilcox and Detective Smith then left the licensed premises. Detective Smith again purchased marijuana from Larry Wilcox which was obtained from behind the ice machine. On March 29, 1983, upon sworn affidavit, another search warrant was obtained from the Honorable Judge Alan Kornblum for the Respondent's building (Stipulated Fact). The search warrant was executed on the same day. It applied to the entire building. During the execution of the search warrant, Larry Wilcox was arrested on the licensed premises. Upon searching Larry Wilcox, marijuana and quaaludes were discovered. (Stipulated Fact). Marijuana and quaaludes were also found in a trash can located outside the front door of the licensed premises. (Stipulated Fact). No evidence was presented as to who owned the trash can. Two cigar boxes, a metal can, a plastic container and three strainers, all of which contained marijuana residue, were discovered in the living quarters. The Respondent was not present during the March ?9, 1983 search of the licensed premises or his living quarters. On April 28, 1984, MDPD Sergeant Louis Battle and Investigator Lou Terminello entered the licensed premises to conduct a license inspection (Stipulated Fact). The Respondent was located behind the counter on the licensed premises when Sergeant Battle and Investigator Terminello entered. A burnt marijuana cigarette was found in plain view on the counter. (Stipulated Fact). During questioning, the Respondent stated that he smoked marijuana in his living quarters and that he no longer sold marijuana. Marijuana residue was found in the living quarters. During the April 28, 1984, search, a loaded, stolen firearm was found underneath the counter on the licensed premises. It was not proved whether the Respondent was aware of the fact that the firearm was stolen. Administrative charges were brought against the Respondent based upon alleged violations of the controlled substance statute within the beverage statute. Specifically, the Respondent was charged with possession of marijuana on the premises, conspiracy to sell marijuana, possession of marijuana by his employees on the premises, sale and conspiracy to sell marijuana by one of his employees on the premises and public nuisance. The Respondent usually worked on the licensed premises until 4:00 p.m. After 4:00 p.m. the Respondent normally retired to his living quarters. All of the events involved in this proceeding occurred after 4:00 p.m. Although there was testimony to the contrary, it is concluded that the Respondent did not take steps to prevent the possession or sale and/or delivery of marijuana on the licensed premises. The Respondent made statements which indicated that he was aware that marijuana was kept on the licensed premises, he admitted smoking marijuana in his living quarters, marijuana was found in his living quarters on several occasions and he did not fire his brother or Mary Williams after the execution of the first search warrant on February 1, 1983. The Respondent was negligent in supervising the operation of his business. The Respondent entered into a Stipulation on October 7, 1974, whereby he agreed to pay a civil penalty of $250.00 in settlement of charges that the Respondent sold alcoholic beverages for food coupons.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent be found guilty of a violation (possession of marijuana) within Section 561.29(1)(a) and (b), Florida Statutes, as alleged in Count 1. It is further RECOMMENDED: That the Respondent be found guilty of a violation (possession of marijuana) within Section 561.29(1)(b), Florida Statutes, as alleged in Count 2. The Respondent should, however, be found not guilty of a violation within Section 561.29(1)(a), Florida Statutes, as alleged in Count 2 and that portion of Count 2 should be dismissed. It is further RECOMMENDED: That the Respondent be found guilty of a violation within Section 561.29(1)(a), Florida Statutes (possession of marijuana on the licensed premises but not the marijuana found in his 1iving quarters), and a violation within Section 561.29(1)(b), Florida Statutes (possession of marijuana on the licensed premises and in the living quarters), as alleged in Count 3. It is further RECOMMENDED: That the Respondent be found not guilty of conspiracy as alleged in Count Count 4 should he dismissed. It is further RECOMMENDED: That the Respondent be found guilty of a violation (possession of marijuana by an employee) with Section 561.29(1)(a), Florida Statutes, as alleged in Count It is further RECOMMENDED: That the Respondent be found guilty of a violation (sale and/or delivery of marijuana by an employee) within Section 561.29(1)(a) , Florida Statutes, as alleged in Count 6. It is further RECOMMENDED: That the Respondent be found guilty of a violation (possession of marijuana by an employee) within Section 561.29(1)(a), Florida Statutes, as alleged in Count 7. It is further
The Issue The issues to be resolved in this proceeding are whether the Respondent has committed violations of Florida statutes pertaining to alcoholic beverage licenses, and, if so, what penalty should be imposed. The Petitioner contends that Respondent violated the provisions of Sections 561.29(1)(a) and (c) by condoning and/or negligently overlooking trafficking in illegal, controlled substances on his licensed premises. The Respondent contends that he took all reasonable steps to prevent any unlawful activities from occurring on his licensed premises, and that to the extent any unlawful activities were conducted on his licensed premises, he neither condoned nor negligently overlooked them.
Findings Of Fact Robert Pauley is the holder of Alcoholic Beverage License No. 60-1229, Series 2-COP. The licensed premises is located at 4458 Purdy Lane, West Palm Beach, Florida, and is operated under the name "The Treehouse Saloon". The Treehouse Saloon is a "topless bar". It offers so-called adult entertainment to members of the public as well as beer and wine for consumption on the premises. The entertainment consists of women who dance nude or semi- nude. The premises includes numerous tables and a bar where patrons sit, pool tables, restrooms, an office where the Respondent conducted business, a disc jockey's booth, and a dance floor where the women performed. The Treehouse Saloon has been closed since June 8, 1983, when the Petitioner issued an emergency suspension order and notice to show cause. During May and June, 1983, John T. Slavin, an agent employed with the Palm Beach County Sheriff's Department, was acting in an undercover capacity. He took on the appearance and wore clothes compatible with the role of a member of a motorcycle gang. He had been directed to frequent topless lounges in Palm Beach County and to work undercover to determine if illegal drug activities or prostitution were occurring. On May 5, 1983, Slavin entered the Treehouse Saloon. During the evening, he made friends with "Duane" who was working in the saloon as a disc jockey. Slavin asked Duane about the prospects of purchasing cocaine. Duane told Slavin that that could be arranged and that it would cost $60 for three- fourths of a gram. Slavin gave Duane $60. Duane left the disc jockey area and approached one of the dancers whose name was "Barbara." Duane then returned to Slavin and advised him that the "product" was on the way. A short time later, Barbara approached Duane, then Duane brought a matchbox to Slavin. The matchbox contained a transparent plastic bag with white powder in it. After he left the bar, Slavin 7 field-tested the "product" then turned it over to a chemist employed with the Sheriff's Department. The "product" was cocaine. The sale was made at approximately 2:00 a.m. On or about May 12, 1983, Slavin entered the Treehouse lounge at approximately 11:45 p.m. He saw Duane and asked whether Duane was "playing oldies." This was a signal meaning that Slavin wished to purchase more cocaine. Duane said that he was "playing oldies nightly" and asked Slavin how much he wanted. Slavin handed Duane $60. A short time later, Duane delivered a cigarette pack to Slavin and told Slavin that a cigarette was missing. Slavin found two transparent bags containing a white powder inside the cigarette pack. Slavin later field-tested the contents and delivered them to the chemist. The product was cocaine. On or about May 13, 1983, Slavin returned to the Treehouse Saloon at approximately 11:30 p.m. Shortly after mid- night on May 14, he approached Duane's booth and asked if they could do business. Duane said "yes," but that it would take a little longer for the delivery due to a special event (a "banana eating contest") that was being presented. Slavin gave Duane $60 which Duane put in his pocket. Later that morning, Duane put a pack of matches in Slavin's pocket. Slavin went to the men's room and found two plastic bags with a white powder inside. He later field-tested the contents then delivered them to the chemist. The product was cocaine. On or about May 18, 1983, Slavin returned to the Treehouse Saloon at approximately 10:30 p.m. He saw Duane at the bar and asked him why he was not in the disc jockey's booth. Duane indicated that he was squabbling with the management and would be taking some time off. Duane asked Slavin if he was interested in "some white" which is a "street name" for cocaine. Slavin asked if Duane could get him a gram. Duane said that he could. Slavin gave Duane $80. Later, Duane handed Slavin an aspirin tin. There were two small bags of white powder inside the tin. Slavin later field tested the contents then delivered them to a chemist. The product was cocaine. On this occasion, Duane said that he would be away for a while. Slavin asked Duane who could supply "coke" (cocaine) in Duane's absence. Duane named three dancers: "Linda," "Doree," and "Barbara." Although Duane was not in the disc jockey's booth on that occasion, he did appear to be directing other employees, including dancers, in their activities. On or about May 19, 1983, Slavin returned to the Treehouse Saloon at approximately 1:00 a.m. He talked to a dancer called "Doree." Doree's actual name is Diana Donnell. Since then, she has been arrested. Slavin asked Doree if she could get him some "coke." She told Slavin that it would cost $40 for a half gram. Slavin asked if he could buy a full gram, and she said "yes." Doree then performed as a dancer, after which Slavin gave her $80. At that time, he was standing right next to the dance floor. A short time later, Doree returned with two small plastic bags which contained a white powder. Later, Slavin field-tested the powder and turned it over to the chemist. The product was cocaine. On or about May 25, 1983, Slavin returned to the Treehouse Saloon shortly after noon. He sat at the bar next to a dancer whose name was "Samantha." Slavin asked her where Doree was, and was told that Doree was not working there anymore. Slavin asked Samantha if she could help him buy a half gram of cocaine. She said "yes" and that it would cost $40. Slavin placed $40 on the bar between them. She placed a cigarette pack on the bar and told him that there was a half gram inside. She took the money. The witness examined the contents of the cigarette pack, removed a plastic bag which contained a white substance, and returned the cigarettes to Samantha. Samantha told Slavin that he could buy from her in the future. Later, Slavin field-tested the product and delivered it to the chemist. The product was cocaine. Later in the day on May 25, 1983, at approximately 7:30 p.m., Slavin returned to the Treehouse Saloon. He saw Samantha and asked her if he could buy another half gram. She told him it would cost $40. Slavin gave her $40 and she went into the dressing room that was on the premises. When she came out, she gave him a transparent package that had white powder inside. Later, Slavin field-tested the contents and delivered it to the chemist. The product was cocaine. On May 31, 1983, at approximately 10:45 p.m. Slavin returned to the Treehouse Saloon. He talked to a dancer known as "Mama She She." Slavin asked if Samantha was available and was told that she was not there. Maid She She, whose actual name is Michelle West, said that she had "done a line of coke" earlier which was "dirty," but had given her a "good high." She told Slavin that a half gram would cost $40. Shortly after midnight, Slavin gave her $40. He did not receive anything from Mama She She until approximately 3:50 a.m. On several occasions in the interim, Slavin talked to Mama She She about it, but she indicated she was having some difficulty obtaining the cocaine. Eventually, she gave him a clear bag that had powder inside. She told Slavin that she would be working the next day (June 2) from 11:00 a.m. until 7:00 p.m. and that the witness could buy more then. Later, Slavin field-tested the contents of the bag and delivered them to the chemist. The product was cocaine. On or about June 2, 1983, Slavin returned to the Treehouse Saloon at approximately 3:30 p.m. He saw Mama She She and talked to her. She asked him if he was interested in "a half or a whole." He said "A half." She returned a bit later and said that there was nothing there then, but that if he would wait, she could probably get it. Later, she told Slavin that she was a bit reluctant to sell to him because he had not given her a "line" from his purchases. Slavin told Mama She She that he was buying it for friend to whom he owed money. At approximately 7:30 p.m., Mama She She still had not delivered anything to Slavin. She asked if he could drive her home, which he agreed to do. As they were leaving, another dancer, "Barbie," came in. Barbie asked Slavin if he recognized her. She told him that he had gotten cocaine from her through Duane in the past. Slavin asked if he could get a half gram, and Barbie said "yes." Slavin then took Mama She She home and returned at approximately 8:30 p.m. Barbie gave him a plastic bag with white powder inside. Slavin later field- tested the product and delivered it to the chemist. The product was cocaine. All of the women that Slavin dealt with at the Treehouse Saloon were dancers. They were either scantily clad or nude. They would dance for three songs on the dance floor, and customers would put money in their garter belts. A bartender and a bouncer were also present at the saloon. From time to time, a bartender or the disc jockey would tell a dancer it was her turn. The Respondent had hired the dancers as "independent contractors." Whatever their status at the Treehouse Saloon, the dancers were subject to direction from the Respondent or his managers. A list of rules for dancers provided, among other things, that no hard liquor or drugs were allowed on the premises and that the first offense would result in termination. The dancers were required to sign an "independent contractor agreement." The contract provided that dancers would not be considered an agent or employee of the saloon for any purpose. Despite these provisions, the dancers were clearly subject to direction by the bartender or disc jockey at the saloon. In addition, they were required to wait on tables, to circulate among customers, to work their complete shifts, to tip the bartender, and to perform other functions. They were clearly subject to the supervision and control of the Respondent, the bartender, or the disc jockey. When Slavin made the cocaine purchases described above, he communicated with Duane or the dancers in a normal conversational tone. A normal conversational tone in the Treehouse Saloon would he somewhat loud because loud music was constantly playing. The transactions were made in a somewhat secretive manner. A person who was carefully observing or monitoring the premises, however, would necessarily have been suspicious of Slavin, Duane, and the dancers. The Respondent did post rules in various locations of the Treehouse Saloon which provided that illicit drugs were not allowed. His dancers' rules provided to the same effect. Other than that, it does not appear that the Respondent took any steps to properly monitor his premises to assure that such activities were not occurring. Given the number of transactions and the nature of the transactions undertaken by Slavin, the transactions would have been observed by a manager who was reasonably observing and monitoring the premises. There is no evidence from which it could be concluded that the Respondent was directly involved in any drug trafficking or that he condoned it. The evidence does, however, establish that he was negligent in not properly monitoring the licensed premises to assure that illegal activities were not being undertaken there.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered by the Division of Alcoholic Beverages and Tobacco, Department of Business Regulation, finding the Respondent guilty of the violations alleged in the notice to show cause and suspending his beverage license for a period of two years. RECOMMENDED this 14 day of July, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1983. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Albert R. Wilber, Jr., Esquire 315 Third Street, Suite 301 West Palm Beach, Florida 33401 Mr. Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue This case concerns an Administrative Complaint filed by the Petitioner against the Respondent. Count I to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its director, stockholder or corporate officer, namely: Carl Bilotti, related to the possession, sale and/or delivery of the controlled substance cocaine on July 15 and 18, 1981; August 20, 1981; and September 9 and 20, 1981. Count II to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee namely: "Anne," related to the possession of the controlled substance cocaine on August 22 and 28, 1981. Count III to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Anne," related to the possession, sale and/or delivery of the controlled substance cocaine on August 23, 1981, and September 4, 1981. Count IV to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Sandy," related to the possession, sale and/or delivery of the controlled substance methaqualone on July 19 and 25, 1981, and the possession, sale and/or delivery of the controlled substance cocaine on August 14, 22 and 23, 1981. Count V to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Eve," related to the possession, sale and/or delivery of the controlled substance diazepam on July 23, 1981. Count VI to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Gina," related to the possession, sale and/or delivery of the controlled substance diazepam on July 25, 1981, two (2) incidents. Count VII to the Administrative Complaint accuses the Respondent of violations of Sections893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Ivy " related to the possession, sale and/or delivery of the controlled substance cocaine on August 14, 1981. Count VIII to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Shayne," related to the possession, sale and/or delivery of the controlled substance cocaine on July 25, 1981. Count IX to the Administrative Complaint alleges that between July 15, 1981, and October 2, 1981, the Respondent, by actions of its agents, servants, employees, manager, corporate officer and stockholder, maintained a place, to wit: the licensed premises, at 2095 best Fourth Avenue, Hialeah, Florida, which place was used for keeping or selling of controlled substances, namely: cocaine, methaqualone and diazepam, in violation of Subsection 893.13(2)(a) 5; Florida Statutes, within the meaning of Subsection 561.29(1)(c), Florida Statutes. Count X to the Administrative Complaint alleges that between July 15, 1981, and October 2, 1981, the Respondent, through its agents, servants, employees, manager, corporate officer and stockholder, kept or maintained a public nuisance on the licensed premises, to wit: maintaining a building or place which is used for the illegal keeping, selling or delivering of controlled substances within the meaning of Chapter 893, Florida Statutes, in violation of Section 823.10, Florida Statutes, and Subsection 561.29(1)(c) , Florida Statutes. Count XI to the Administrative Complaint alleges that on or about July 25, 1981, an agent, servant or employee of the Respondent, one Gina, while engaged as a dancer, unlawfully offered to commit prostitution, in violation of Subsection 796.07(3)(a), Florida Statutes, causing a violation on the part of the Respondent of Subsection 561.29(1)(a), Florida .Statutes. Count XII to the Administrative Complaint alleges that on or about October 2, 1981, an agent, servant or employee of the Respondent, namely: Cathryne Edmondson, possessed a controlled substance, to wit: marijuana, on the licensed premises, in violation of Subsection 893.13(1)(a) Florida Statutes, causing a violation of Subsection 561.29 (1)(a) , Florida Statutes. Count XIII to the Administrative Complaint alleges that on or about December 2, 1981, a director, stockholder or corporate officer, namely: Carl Bilotti, corporate vice-president and 50 percent stockholder, pled guilty and was adjudicated guilty in the Circuit Court of the State of Florida, Eleventh Judicial Circuit, on five (5) counts of violation of Section 893.13, Florida Statutes, sale of controlled substances, namely: cocaine, a felony, and that the felony conviction impairs qualifications of the Respondent to obtain and continue holding an alcoholic beverage license under Subsection 561.15(3), Florida Statutes, and Subsection 56l.29(1)(b), Florida Statutes.
Findings Of Fact The Petitioner had served an Administrative Complaint on the Respondent, which Administrative Complaint contained the Counts as set forth in the Issues statement to this Recommended Order. Subsequent to that time, the Respondent, in the person of counsel, requested a formal Subsection 120.57 (1), Florida Statutes, hearing and the formal hearing was conducted on January 6, 1982. As indicated by correspondence from former counsel for the Respondent to counsel for the Petitioner dated December 15, 1901, Respondent's counsel withdrew from the case. This withdrawal of counsel postdated a Notice of Hearing setting forth January 6, 1982, as the date for hearing and a separate Order of November 24, 1981, which identified January 6, 1982, a the date for hearing. Notwithstanding the Notice and separate Order identifying January 6, 1982, as the hearing date, the Respondent, by and through its attorney or other authorized representative, did not attend the formal hearing. Although the Respondent was not in attendance, the hearing was conducted in view of the continuing request for hearing, which has never been withdrawn. The Petitioner is a governmental agency in the State of Florida, which has, among other duties, the licensure of the several alcoholic beverage license holders in the State of Florida, and the requirement to discipline those beverage license holders who have violated the terms and conditions of their licensure. The Respondent Carl and Mike, Inc., is the holder of an alcoholic beverage license issued by the Petitioner. The Respondent trades as the Raw Hide Bar at a licensed premises at 2095 West Fourth Avenue, Hialeah, Dade County, Florida. On July 15, 1981, at approximately 9:45 P.M., Beverage Officer L. J. Terminello, and a confidential informant, who was assisting Officer Terminello, entered the licensed premises in undercover capacities to continue an investigation which had begun on July 12, 1981. (The Beverage Officer and confidential informant had been in the licensed premises on that former date for purposes of conducting a narcotics investigation.) On this occasion, the investigative purpose was to purchase narcotics. Terminello and the informant took a seat at the bar and waited for the appearance of Carl N. Bilotti, the vice-president of the Respondent and 50 shareholder. It was the intention of Terminello to attempt to purchase narcotics from Bilotti. At 10:50 P.M. Bilotti had not arrived at the licensed premises and Terminello decided to leave; however, when he reached the front door, Bilotti was entering and Bilotti spoke to the confidential informant in the parking lot area of the licensed premises. The confidential informant, in the course of that conversation, asked Bilotti if, "we could get any coke," meaning Terminello and the confidential informant were interested in purchasing cocaine. Bilotti responded by stating, "Sure, no problem. Wait here a minute, I'll be right back." Bilotti then entered the licensed premises and returned a few minutes later and handed the confidential informant a piece of aluminum foil which was folded and the confidential informant handed this item to Terminello. Terminello opened the package and noted a quantity of white powder. Terminello asked Bilotti, "how much" and Bilotti stated, "anything close to $70.00." Terminello paid Bilotti $70.00 in United States currency and following a short conversation, departed the area of the licensed premises. The white powder in question was in fact cocaine. Terminello and the confidential informant returned to the licensed premises on July 18, 1981, at approximately 12:15 A.M. Terminello approached Carl Bilotti who was standing at the end of the bar area next to a cash register. Terminello asked Bilotti if he had any "stuff," referring to cocaine. Bilotti answered "sure" and indicated that the cost for the cocaine would be $70.00. Terminello agreed to the price, telling Bilotti that he would meet him in the mens room for purposes of the exchange of drugs and money. At approximately 12:20 A.M., while located in the mens rest room of the licensed premises, Terminello paid Bilotti $70.00 in United States currency and Bilotti gave Terminello a folded piece of white paper which Terminello could see contained white powder. Shortly thereafter, Terminello and the confidential informant exited the licensed premises. The white powder which had been purchased was analyzed and revealed the presence of cocaine. On July 19, 1981, at around 11:00 P.M., Officer Terminello returned to the licensed premises. While in the licensed premises he spoke with Sandra McQuire, a person that he had met on July 12, 1981. On July 12, 1981, McQuire had been employed as a cocktail waitress on the licensed premises and Terminello had been advised by the confidential informant that McQuire had delivered ten (10) methaqualone tablets to the confidential informant on that date. On that date, July 19, 1981, Terminello told employee McQuire that he wanted to purchase ten (10) more "ludes, meaning methaqualone. At around 11:20 P.M., while Terminello was sitting at the bar, McQuire walked by and handed him a napkin containing ten (10) white tablets. A few minutes later, Terminello handed McQuire $30.00 in U.S. currency in payment for the white tablets. Terminello then left the licensed premises at approximately 11:40 P.M. The ten (10) tablets were subsequently analyzed and found to be methaqualone. On July 23, 1981, at approximately 12:30 A.M., Officer Terminello and the confidential informant entered the licensed premises. Terminello and the confidential informant took a seat at the bar, where shortly afterwards a conversation ensued with an employee/dancer who identified herself as "Eve" and was later determined to be one Eve Mary Carroll. Carroll and the confidential informant had been acquainted prior to this time. During the course of the conversation, Terminello asked Carroll if she knew where he could get some "good ludes." This refers again to methaqualone. Carroll told him that she was "holding," meaning that she had some in her possession. She asked Terminello to pay her $4.00 for each tablet. She stated that the price was higher because they were "pure methaqualone tablets" and that they would "really do a job." Terminello told Carroll that he would purchase three (3) tablets and handed her $12.00 in U.S. currency. A few moments beyond this time, at around 12:45 A.M., Carroll handed Terminello three (3) tablets, each individually wrapped in aluminum foil, which tablets Terminello placed in his pocket. The suspect methaqualone tablets were later determined to be diazepam. On the same date, July 23, 1981, Terminello observed Carl Bilotti enter the licensed premises at around 1:00 A.M. In the course of a conversation that ensued, Bilotti told Terminello he could sell Terminello some cocaine, but that the transaction would have to occur later, in that Bilotti had to leave the licensed premises. Terminello waited until 2:30 A.M. and Bilotti never returned. On July 25, 1981, at approximately 12:00 A.M., Terminello and the confidential informant went back to the licensed premises. Over the next hour and a half, Terminello talked to Carl Bilotti and employee Sandra McQuire about purchasing narcotics; however, neither of those persons were able to deliver narcotics at that time. On that same date, Terminello and the confidential informant did speak with a dancer/employee in the licensed premises who was identified as "Gina" and this individual indicated that she had some "ludes" for sale, meaning methaqualone, that she would sell for $3.00 each. Terminello indicated that he would like to purchase five (5) tablets and they walked out the front door of the premises and Terminello gave her $15.00 in U.S. currency, in return for five (5) white tablets which were marked "Lemon 714." Those tablets were subsequently analyzed and found to be diazepam. At around 2:45 A.M. on July 25, 1981, while in the bar area, Terminello and the confidential informant spoke to an individual, a male, who was known as "Frenchie" later identified to be one Laurent E. Duval, who was in the company of a dancer employed in the licensed premises whose name was "Shayne" later identified to be Sharon K. Hicks. In the presence of Hicks, Terminello and Duval negotiated for the sale of a quantity of cocaine for the amount of $75.00. Duval also indicated that he had to be careful because he had a stolen car, was carrying a firearm and had recently been placed on probation by Circuit Court for narcotics and firearms charges. Duval told Terminello that the narcotics arrangement would have to be consummated in the parking lot of the licensed premises in view of the fact that too many people he did not know were in the bar. Terminello and the confidential informant exited the licensed premises at around 3:00 A.M. in the company of Duval and Hicks. Duval took a seat on the driver's side of an automobile in the parking lot and Hicks sat in the front passenger side seat. Duval handed Terminello a large plastic bag. containing a quantity of white powder which was suspect cocaine. Terminello started to hand Duval $75.00 in U.S. currency but Duval refused to take it, telling Terminello to hand the money to Hicks. Hicks had been observing this transaction and agreed to take the money and did accept the $75.00 in U.S. currency. The suspected cocaine was later revealed to be cocaine. Terminello next returned to the licensed premises on July 25, 1981, at around 9:30 P.M. At that time he was in the presence of the confidential informant. Terminello and the confidential informant took a seat at the bar and were approached by a dancer/employee who had earlier been identified as "Gina." There had been a prior telephone negotiation between the confidential informant and "Gina" for the purchase of five (5) "ludes," methaqualone, and in keeping with that arrangement, "Gina" handed Terminello a white napkin which contained five (5) white tablets. Terminello in turn gave "Gina" $15.00 in U.S. currency. Those tablets were subsequently analyzed and found to be diazepam. On the same evening, i.e., July 25, 1981, at around 9:45 P.M., the cocktail waitress, Sandra McQuire, approached Terminello and stated that she had five (5) methaqualone tablets that Terminello had asked for on the prior evening. She handed him a zip-lock plastic bag containing five (5) white tablets marked "Lemon 714." Shortly after this time, Terminello gave McQuire $15.00 in U.S. currency to pay for the tablets. Those tablets were subsequently analyzed and found to be methaqualone. At around 10:15 P.M. on July 25, 1981, the dancer/ employee "Gina" approached Terminello while he was seated at the bar and advised him that if he "got rid of" his "old lady" and returned about 4:00 A.M. to the premises that she, "Gina," would show him a good time by "fucking his brain out" for $50.00. Terminello acknowledged this offer. On August 3, 1981, at approximately 10:30 P.M., Terminello and the confidential informant returned to the licensed premises. At that time, Terminello entered into a conversation with Carl Bilotti on the subject of narcotics; however, Bilotti indicated that he was unable to procure cocaine at that time. Bilotti did state that he expected a delivery soon and that Terminello should wait a while. Nothing had transpired by 11:45 P.M. concerning the narcotics and Terminello and the confidential informant left the licensed premises. On August 14, 1981, at approximately 10:45 P.M., Terminello and the confidential informant went back to the licensed premises and upon entry took a seat at the bar where they were greeted by the cocktail waitress Sandra McQuire. Terminello asked McQuire if there were any "ludes" around, meaning methaqualone, and McQuire answered in the negative, but she did indicate that there was some "toot," meaning cocaine available for $70.00 a gram if Terminello was interested. Terminello advised McQuire that he was interested and removed $70.. 00 in U.S. currency from his wallet, wrapped it in a napkin and handed it to McQuire. She then stated that she would be back in a few moments. After several moments, McQuire signaled Terminello to walk over to the opposite side of the bar where she was fixing drinks. She then made a comment about the good quality of the "stuff." While Terminello was talking to McQuire, another employee, a dancer in the licensed premises identified as "Ivy" later shown to be one Julie Ann Schwartz, approached Terminello and handed him a plastic zip- lock bag containing white powder. She told Terminello "here is a present from Sandy." Terminello accepted the material. Schwartz then asked Terminello if she could "do a line," referring to the ingestion of cocaine. In view of the circumstances, Terminello did allow Schwartz to taste the cocaine. Schwartz did this by opening the packet in plain view at the bar area and placing her finger into the container and then tasting the substance that adhered to her finger. She then handed the plastic bag back to Terminello and said "you are going to enjoy this. That's good stuff." These matters transpired in the presence of McQuire. The white powder was subsequently analyzed and revealed to be cocaine. On August 22, 1981, at approximately 11:00 P.M., Terminello returned to the licensed premises. Upon entry to the licensed premises, Terminello was greeted by Carl Bilotti who appeared to be leaving the bar at that time. Bilotti told Terminello he could be back in about one hour if Terminello wanted to wait for purposes of purchasing cocaine. Terminello told him he would wait. Following his conversation with Bilotti, Terminello spoke with the cocktail waitress Sandra McQuire asking her if there was any "toot" around, meaning cocaine. McQuire indicated that there was and it would cost $70.00. Terminello followed McQuire into the hallway outside the ladies' room where he handed her a hundred dollar bill and she handed him a plastic wrapped package containing white powder. A few minutes later, Terminello was sitting at the bar when McQuire returned and laid $30.00 in U.S. currency before Terminello stating "thank you very much." This material in the plastic bag which had been provided to Terminello by McQuire was subsequently determined to be cocaine. Terminello was still in the bar area at around 12:30 A.M. on August 23, 1981, and entered into a conversation with the manager of the licensed premises identified a "Anne" later shown to be Anne R. Milotta, also known as Ann Bilotti, the sister of Carl Bilotti. Terminello told Milotta that he felt that her brother Carl Bilotti was inconsiderate in that Terminello had planned to purchase cocaine from Bilotti that night and Bilotti had not come back to the premises. Milotta agreed with Terminello and told him that he could sit in the manager's office with her to have a drink and to wait for her brother to return. Milotta and Terminello went to the manager's office. While in that office, ,Milotta answered the telephone, gave directions to employees, answered questions, was observed to have the keys to the office, and at times was seen tending bar. These managerial activities were further substantiated on a later date based upon Terminello's procurement of a copy of an application which Milotta had made with the City of Hialeah, Florida, for an identification card in which she had listed herself as the "owner-manager of the licensed premises." While in the office with Milotta, she told Terminello that it was too bad that her brother had not yet come back so that Terminello could purchase cocaine. Terminello, during this conversation, indicated to Milotta that he had purchased cocaine from Sandy McQuire, the cocktail waitress, and Milotta stated to Terminello "how 'bout turning me on to a line" and Terminello responded "OK." Terminello removed the cocaine he had received from McQuire and handed it to Milotta. She opened it and tapped out two one and one half inch long "lines" of cocaine on the desk in the office and handed the package back to Terminello. Terminello then watched Milotta ingest one of the lines through her nose using a plastic straw and he in turn simulated that activity. At around 1:15 A.M., on August 23, 1981, Terminello indicated to Milotta that, in view of the fact that Carl Bilotti was not going to appear, he would like to purchase another gram of cocaine to keep him supplied for the upcoming week. Milotta stated she would get McQuire and exited the office and called McQuire in, telling her that Terminello wanted to purchase another gram of cocaine. McQuire indicated that this would not be a problem and removed another packet similar to the first from a large plastic bag she kept on her person. This large bag appeared to have twenty (20) to thirty (30) similar type packets within it. Terminello removed a hundred dollar bill from his wallet and handed it to Milotta who in turn handed it to McQuire. McQuire then reached over Milotta and handed Terminello the packet. Shortly after this exchange, McQuire left the office and Milotta continued in general conversation both in the bar and office area until Terminello left the premises at approximately 1:50 A.M. The second package that McQuire gave to Terminello was subsequently determined to be cocaine. On August 28, 1981, at approximately 10:30 A.M., Terminello went back to the licensed premises to continue the investigation. Upon entering the licensed premises he spoke with Carl Bilotti asking if he had any "toot," meaning cocaine. Bilotti stated that he did and that it would be the same price as usual, $70.00. A few minutes later, Bilotti walked up to Terminello who was sitting at the bar and handed him a plastic zip-lock bag containing white powder and Terminello gave him $70.00 in U.S. currency in exchange. The substance which Terminello had purchased from Bilotti was subsequently determined to be cocaine. A few minutes after the exchange of cocaine and currency, Anne Milotta approached Terminello in the bar area and invited him into the manager's office for a drink. When they entered the office, Milotta told Terminello that she had seen the transaction involving the sale of cocaine between Terminello and her brother and wanted to make sure that Terminello was satisfied with the "product." The conversation continued while Milotta intended her managerial duties of making schedules, and answering the telephone. At approximately 11:00 P.M., Milotta asked Terminello if she could "do a line" of his cocaine, meaning use the material. She indicated that she knew "this coke was as good as all the coke that Carl gets." Terminello complied with her request by handing her the plastic zip-lock bag that he had purchased from Carl Bilotti. She again placed two (2) "lines" of the cocaine on the desk and on this occasion used a twenty dollar bill which had been rolled up as a tool to ingest the cocaine in her nose. Terminello simulated the use of cocaine in her presence. Terminello then left the office and exited the licensed premises. On September 4, 1981, at approximately 9:30 P.M., Terminello went back to the licensed premises. When he entered the premises he spoke with Anne Milotta asking her if her brother had "any shit to sell," referring to cocaine. Milotta invited Terminello into her office indicating that her brother did not have cocaine for sale but that she did. Terminello told her that he wanted one (1) gram. She left the office and returned a few minutes later, at around 9:50 P.M., handing Terminello a piece of plastic wrapping containing white powder. Terminello handed her 580.00 in U.S. currency and she returned $5.00, stating that her price was $75.00. Subsequent analysis of the material which he had received from Milotta revealed the presence of cocaine. While in the office area, Milotta continued to perform managerial duties. As Terminello was preparing to leave the licensed premises on this date, Milotta approached him and gave him an additional $5.00 in U.S. currency stating that she had made a mistake and that a gram should only be $70.00 and that she did not want Terminello to think that she was "ripping him off." This discussion of money referred to the purchase of cocaine. On September 9, 1981, at around 10:10 P.M., Terminello went back to the licensed premises. He took a seat at the bar and waited for the appearance of Carl Bilotti. Bilotti entered the licensed premises at around 10:25 P.M. and Terminello asked him if he was "holding any shit," referring to cocaine. Bilotti stated that he was and that it was the usual price of $70.00. Bilotti and Terminello then went to the manager's office. Bilotti left Terminello in that office, shortly thereafter and following this sequence, Terminello gave Bilotti $70.00 in U.S. currency while in the office in exchange for a white piece of paper folded in four parts which contained white, powder. The analysis of this white powder material revealed cocaine. Terminello and Bilotti stayed in the office for a few minutes discussing general topics and the possibility of a large narcotics purchase in the future. Bilotti told Terminello that he would be better off buying a quarter ounce of cocaine for $425.00 rather than one gram at a time for $70.00. Terminello then left the licensed premises at approximately 10:45 P.M. On September 20, 1901, at approximately 12:15 A.M., Terminello returned to the licensed premises. He undertook a conversation with Carl Bilotti while standing near the outside of the front door. After a short conversation, Bilotti indicated that he had cocaine for sale. A few minutes later while inside the licensed premises, Bilotti waved Terminello into the manager's office where he removed a quantity of white powder from a large plastic bag and placed a small quantity of white powder into a piece of paper on the desk. He then folded the piece of paper and handed it to Terminello who handed Bilotti 570.00 in U.S. currency. This white powder was subsequently determined to be cocaine. At approximately 1:00 A.M., Terminello left the licensed premises. On September 26, 1981, at approximately 12:20 A.M., Terminello, while in the licensed premises, entered into a discussion with Carl Bilotti about a narcotics transaction involving the purchase of cocaine. Bilotti indicated that two (2) ounces of cocaine could be purchased for $1,700.00 an ounce and he stated that the safest place for the transaction to occur would be in the office at the licensed premises. On September 29, 1981, at around 11:15 P.M., Terminello and Carl Bilotti, while in the office at the licensed premises, confirmed a future purchase of two (2) ounces of cocaine. Bilotti explained to Terminello the packaging and adulterating procedures to be used in connection with selling the cocaine. On October 2, 1981, at approximately 12:45 A.M., in the office of the licensed premises, Anne Milotta told Terminello that she was aware of the pending large transaction for the purchase of cocaine between Terminello and Carl Bilotti and that her understanding was that the purchase was to occur later that evening. She further stated that due to her brother's unreliability she would also guarantee that two (2) ounces of cocaine would be in the office by 7:00 P.M. on October 2, 1981. On October 2, 1981, a search was made of the licensed premises in connection with a warrant issued by the Dade County Circuit Court. The search warrant was read to Dorothy Bilotti, a principal in the beverage license. During the course of the search, Cathryne Edmondson, one of the dancer/employees was found in possession of marijuana. On December 2, 1981, Carl Bilotti entered a plea of guilty to five (5) counts of sale of cocaine and five (5) counts of possession of cocaine. He was subsequently adjudicated guilty of the sale of cocaine and adjudication was withheld on the counts of possession of cocaine. These matters were in connection with a court case in the Circuit Court, Dade County, Florida.
Findings Of Fact Respondent currently holds alcoholic beverage license number 69-007441, series 2COP, for the licensed premises known as Javis Pub located at 600 North Highway 17-92, Longwood, Seminole County, Florida. At all material times, Jose Javier Zudaire (Javi) was the sole owner and officer of Respondent. At all material times, a person known only by the name of John was employed by Respondent as a bartender. On April 7, 1988, Sandra D. Owens, who was employed by the Seminole County Narcotic Unit, entered Javis Pub in an undercover capacity with a confidential informant who had advised the law enforcement authorities that illicit drugs were being sold in the bar. At the time, the informant was negotiating with Javi for the purchase of the bar. The informant introduced Ms. Owens to Javi. In the ensuing conversation, Javi told Ms. Owens that he had not gotten home until 7:00 a.m. that day because he had been out taking cocaine the prior evening. Ms. Owens complained that cocaine was hard to come by. Javi began to discuss the quality of the cocaine that he could obtain and the prices for which he could obtain it. Javi then offered to get Ms. Owens a free sample of his cocaine, but she stated that she would rather purchase it. They then agreed that she would return the next evening and purchase 1/8 ounce for $200 from John, who was the bartender. When Ms. Owens returned the next evening, John was not there. Javi and Ms. Owens began conversing. After a short time, Javi picked up a pack of cigarettes that Ms. Owens had laid down on the bar, emptied it of most of the cigarettes, took the pack into a back room behind the bar, and returned with the pack, into which he had placed 1/8 ounce of cocaine. Javi then placed the pack in front of Ms. Owens, who placed two one-hundred dollar bills under a nearby ashtray. Javi completed the transaction by taking the two bills. Before Ms. Owens left the bar, Javi assured her that she would like the cocaine. She left the bar, but returned later in the evening to thank Javi and tell him that she would be leaving town for a week or so. During the next couple of weeks, Ms. Owens spoke by telephone with Javi and John about seven times. Although she in fact had remained in town, she told them that she was visiting friends in Houston and gave them a telephone number in Houston to call her. Through an arrangement with the Houston police department, they took the calls on a private line and forwarded all messages to Ms. Owens. On the evening of April 21, 1988, Ms. Owens returned to the bar. She met with John, who told her that he would sell her an ounce of cocaine if she returned to the bar at midnight. Ms. Owens returned to the bar at 11:55 p.m. on April 21. John was waiting outside for her. Together, they entered the bar where they were joined by Javi. Javi asked John if he was going to take care of Ms. Owens. Javi then left the bar and John went to the back room behind the bar and returned with a white envelope containing cocaine. He removed the envelope from a back pocket and Ms. Owens asked him if he wanted to complete the transaction out in the open. He told her not to worry about "my people." While seated at the bar in good lighting with other persons present, Ms. Owens counted out, onto the surface of the bar, the $1300 cash that they had agreed upon and John gave her the cocaine. Shortly after purchasing the cocaine, Javi returned to the bar, asked Ms. Owens if John had taken care of her, and assured her that she would like the cocaine. Petitioner's policy calls for the revocation of an alcoholic beverage license whenever illegal drug sales repeatedly take place in the licensed premises, the premises are declared a public nuisance, and the premises are a place of dealing, storing, selling, or using illegal drugs; the licensee sells a controlled substance one or more times; or an employee makes three or more sales of a controlled substance on the licensed premises and in an open manner so as to indicate culpable negligence on the part of the licensee in the management of the premises.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Section 561.29(1)(a) and (c) Florida Statutes, and revoking the subject alcoholic beverages license. DONE and RECOMMENDED this 17th day of October, 1988, in Tallahassee, Florida ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1987. APPENDIX TO RECOMMENDED ORDER Treatment Accorded Petitioner's Proposed Findings 1-2. Adopted. 3. First and last sentences adopted. Remainder rejected as unsupported by the evidence. 4-6 . Adopted. 7. Rejected as legal argument. 8-12. Adopted. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Richard A. Colgrove, Esquire Firm of Thomas C. Greene, Esquire 212 North Park Avenue Post Office Box 695 Sanford, Florida 32772-0693 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1007 Joseph A. Sole, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the notice to show cause and, if so, what disciplinary action should be imposed.
Findings Of Fact At all times pertinent hereto, respondent, Arturo G. Muniz, held alcoholic beverage license number 16-06467, series 2-COP, for the premises known as Chiche on the Beach, (the "premises") located at 2805 East Hallandale Beach Boulevard, Hallandale, Broward County, Florida. On January 11, 1991, Detective James Carney, of the Davie Police Department, operating undercover, and a confidential informant (CI) entered the licensed premises as part of an ongoing narcotics investigation to purchase marijuana. At the premises, the detective and the CI approached respondent, and the CI inquired of respondent if he "had something" or if he could "get something today," referring to marijuana. Respondent replied that "it was not here now," advised that he was expecting a delivery soon, that it would be more expensive ($60 instead of $55 for a quarter ounce), and advised the undercover officer and CI that they should place their order now. The CI then informed respondent that they wanted "2-quarters." While awaiting the arrival of the marijuana, the undercover officer and CI walked toward the beach to dispel suspicion and to communicate with backup police regarding the possible sale. Returning to the premises, the officer and CI sat on a wall outside the premises until the respondent whistled or beckoned the CI to the premises. Shortly thereafter, the CI purchased a baggie containing approximately one quarter ounce of cannabis, commonly known as marijuana, from respondent for $60.00. On March 5, 1991, the undercover officer, accompanied by Hallandale Police Officer Michael Antinick, returned to the licensed premises to arrest respondent. The respondent was standing behind the service counter, and there was no one else near the service counter and certainly no one, other than respondent, within arm's length of an ashtray that contained a smoldering "roach" (marijuana cigarette) or the white paper plate that contained a small amount of marijuana and some rolling papers. Such paper plate is commonly used, as it apparently was in this case, to separate the desirable marijuana leaf particles from the undesirable marijuana seeds by placing the marijuana on the plate and shaking it until the leaf particles and seeds are separated. The rolling papers found on the paper plate are commonly used to roll the marijuana leaf particles into a cigarette, such as the marijuana cigarette that was found smoldering in the adjacent ashtray. On March 13, 1991, petitioner, through its special agent Carol Owsiany, conducted an inspection of the licensed premises. At such time, respondent was not present, but an employee named "Sheedie" (phonetic) was on duty. Agent Owsiany requested the records and invoices for the business from "Sheedie." What "Sheedie" did produce was "not much" in the opinion of Agent Owsiany, but from the records that were available it was disclosed that on March 2, 1991, and again on March 8, 1991, a total of eight six-packs of Heineken beer had been purchased from Valros Warehouse, which was not a licensed distributor under the Florida Beverage Laws, for resale on the premises. According to "Sheedie," such beer was purchased to "tide them over" until their regular distributor made its delivery. No further proof was offered regarding any further efforts by petitioner to secure the records of the business regarding alcoholic beverage purchases or the licenses, if any, held by Valros Warehouse. In cases involving possession, use, delivery, or sale of controlled substances on the licensed premises, if the violation is committed by the licensee, it is the petitioner's established policy to revoke the license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered revoking alcoholic beverage license 16-06467, series 2-COP, held by respondent, Arturo G. Muniz. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of March 1992. WILLIAM J. KENDRICK 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 26th day of March 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: Adopted in paragraph 1. Subordinate. 3-8. Addressed in paragraphs 2 and 3, otherwise subordinate. 9-11. Addressed in paragraph 4, otherwise subordinate. 12 & 13. Addressed in paragraph 5. 14. Addressed in paragraph 6. COPIES FURNISHED: Monica Adkins-White Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Norman D. Zimmerman, Esquire 737 East Atlantic Boulevard Pompano Beach, Florida 33060 Richard W. Scully, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Donald D. Conn General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, revoke alcoholic beverage license number 23-1341, Series 2-COP, held by Maritza Garcia, d/b/a Maritza's Pub. RECOMMENDED this 23rd day of May, 1985 in Tallahassee, Florida. Hearings 1550 Hearings J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 FILED with the Clerk of the Division of Administrative this 23rd day of May, 1985.
The Issue Whether or not on or about September 28, 1976, one Leouigildo Hernandez, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in his possession, on the aforementioned beverage license premises, a controlled substance, to wit; cocaine, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on or about September 28, 1976, one Leouigildo Hernandez, an agent, servant or employee of the beverage license premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in his possession, with the intent to sell, a controlled substance; cocaine, and whether said cocaine was sold to one E. Santiago, for the price of $100 in U.S. currency, and whether said sale was consummated at the aforementioned beverage license premises, on the aforementioned date, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on or about October 30, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage license premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, on the aforementioned beverage license premises, a controlled substance, to wit; cocaine contrary to Section 893.13, F.S. thereby violating Section 561.29, F.S. Whether or not on or about October 30, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage license premises of Intimo Lounge, Inc. d/b/a Intimo Lounge, did have in her possession, with the intent to sell, a controlled substance, to wit; cocaine, and whether or not said cocaine was sold to one E. Santiago, for the price of $100 U.S. currency, and whether or not said sale was consummated at the aforementioned beverage licensed premises on the aforementioned date, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on November 4 & 5, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, on the aforementioned beverage licensed premises, a controlled substance, to wit; cocaine, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on or about November 4 & 5, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, with the intent to sell, a controlled substance, to wit; cocaine, and whether or not said cocaine was sold to one E. Santiago, for the price of $2,200, U.S. currency, and whether or not said sale was consummated at the aforementioned beverage licensed premises, on the aforementioned date, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. A count seven was originally charged against the Respondent, but that charge was dismissed at the commencement of the hearing. A count eight was originally charged against the Respondent, but that charge was dismissed at the commencement of the hearing. Whether or not on or about November 20, 1976, a bottle of non-tax paid alcoholic beverage, labeled Ron Medeliin Rum, was discovered on the licensed premises, and whether or not said bottle bore no federal strip stamp or any other indication that the lawfully levied federal and/or state taxes had been paid, contrary to Section 562.16, F.S., thereby violating Section 561.29, F.S. Whether or not on or about September 1, 1976, and continuing until on or about November 24, 1976, the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did maintain a public nuisance, to wit; maintain a place where controlled substances were illegally sold, kept or used, contrary to Section 823.10, F.S., thereby violating Section 561.29, F.S. Whether or not investigation revealed that on or about November 20, 1976, the Respondent, its agent, servant, or employee, did remove, deposit, or conceal a beverage, to wit, one (1) 2,000 cc bottle of Ron Medeliin Rum, with the intent to defraud the state of tax, contrary to Section 562.32, F.S. and Section 562.30, F.S., thereby violating Section 561.29, F.S.
Findings Of Fact At all times material to this complaint the Respondent, Intimo Lounge, Inc., d/b/a Intimo Lounge, was the holder of a license no. 23-1901, held with the State of Florida, Division of Beverage, and that license was for the premises located at 1601 Collins Avenue Miami Beach, Florida. The management of the licensed premises makes arrangements to hire entertainment in the form of musicians. This arrangement is made through agreement with the band leader. One of these agreements was made with a band leader who had as his band member Leouigildo Hernandez. On September 28, 1976, Officer E. Santiago, of the Miami Beach, Florida, Police Department entered the licensed premises and while in the licensed premises entered into discussion with Hernandez. Hernandez left the bar proper and came back with an amount of a substance known as cocaine. Santiago paid Hernandez $100 for the quantity of cocaine and the sale was consummated in the licensed premises. On October 30, 1976, Officer Santiago returned to the licensed premises. Santiago had been in the licensed premises many times prior to that occasion. Among the persons he had seen in the bar was Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales. Morales was the girlfriend of Anthony Bilbao, one of the principals in the ownership of the licensed premises. Morales had also served Santiago drinks in the bar on more than 50 occasions. On the evening in question, October 30, 1976, discussion was entered into between Santiago and Morales about the purchase of a substance known as cocaine. Morales produced a quantity of the cocaine and reached across the bar that she was standing behind and handed the quantity of the substance cocaine to Santiago, who was in the area where customers were served at the bar. Santiago paid her $100 for the cocaine. In the late hours of November 4 and early hours of November 5, 1976, Santiago again entered the licensed premises, his purpose for going to the licensed premises was to purchase a large quantity of cocaine from Morales. This arrangement had been entered into based upon the sample of cocaine that had been provided him on October 30, 1976. Morales left the licensed premises and returned 3 to 5 minutes later with a quantity of cocaine, for which Santiago paid her $2,200. On one of the above occasions of a purchase of cocaine from Morales, while in the licensed premises, Morales had conferred with Anthony Bilbao. In the course of that conference, Bilbao told Morales to be careful to whom she sold because "you don't know him", meaning Santiago. In the course of an investigation in the license premises on November 28, 1976, a bottle of non-tax-paid alcoholic beverage, labeled Ron Medeliin Rum, was discovered in the licensed premises, which bore no federal strip stamp or any other indication that the lawfully levied federal and/or state taxes had been paid. The size of the bottle was 2,000 cc.
Recommendation Based upon the violations as established in the hearing on the notice to show cause, it is recommended that the license no. 23-1901 held by Respondent, Intimo Lounge, Inc., d/b/a Intimo Lounge, be revoked. DONE AND ENTERED this 24th day of February, 1977, in Tallahassee ,Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Michael B. Solomon, Esquire Division of Beverage Theodore M. Trushin, Law Office The Johns Building 420 Lincoln Road, Number 600 725 Bronough Street Miami Beach, Florida 33139 Tallahassee, Florida 32304 Nathaniel Barone, Esquire 777 N.E. 79th Street Miami, Florida 33138
The Issue This case involves the consideration of a Notice to Show Cause/Administrative Complaint by the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco against Palace Bar and Lounge, Inc. Specifically, it is alleged in Count I that between January 16, 1981, and January 29, 1981, the Palace Bar and Lounge, while licensed under the beverage laws of the State of Florida, in the person of the corporation or by its agent, servant and/or employee did maintain a place, to wit: the licensed premises at 6970 N. W. 17th Avenue, Miami, Dade County, Florida, which is resorted to by persons using controlled substances for the purpose of using these controlled substances, to wit: cannabis and cocaine, or which place is used for keeping or selling them, in violation of Subsection 893.13(2)(a)5., Florida Statutes, and Subsection 561.29(1)(a), Florida Statutes. It is further alleged by Count II that between January 16, 1981, and January 29, 1981, the Respondent, Palace Bar and Lounge, Inc., as a licensee under the beverage laws of the State of Florida, or its agent, servant and/or employee did keep or maintain a public nuisance on its licensed premises, to wit: maintaining a building or place which is visited by persons for the purpose of unlawfully using substances controlled under Chapter 893, Florida Statutes, as amended, or which is used for the illegal keeping, selling or delivering or same, contrary to Section 823.10, Florida Statutes, and Subsection 561.29(1)(c), Florida Statutes.
Findings Of Fact This case is presented for consideration pursuant to Subsection 120.57(1), Florida Statutes, following administrative charges brought by the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, against Palace Bar and Lounge, Inc., d/b/a Palace Bar. The details of those charges are as set forth in the Issues statement to this Recommended Order. The formal hearing in this cause was conducted on May 11 and 12, 1981. The Recommended Order is being entered in furtherance of that hearing and after granting the parties an opportunity to offer memoranda of law, proposed findings of fact, conclusions of law and recommendations, and in keeping with the schedule designed to effectuate that opportunity. The State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco is a regulatory agency within the State of Florida, which has among its functions, the licensure of individuals who sell alcoholic beverages in the State of Florida and the responsibility to discipline those several licensees, should the licensees violate the underlying regulatory statutes and rules. Respondent, Palace Bar and Lounge, Inc., d/b/a Palace Bar, is the holder of and held a valid beverage license on all dates in question in the Administrative Complaint. Specifically, Palace Bar is the holder of license No. 23-479, Series 4-COP, which allows the sale of alcoholic beverages for consumption off premises. The licensed premises is located at 6970 N. W. 17th Avenue, Miami, Dade County, Florida. The facts in this case reveal that James P. Bates, Sergeant with the Division of Alcoholic Beverages and Tobacco, went to the licensed premises on January 12, 1981, at approximately 8:00 P.M. The purpose of this visit was a pre-surveillance inspection. While at the bar, Bates spoke with a bartender identified as "Miss Frances." This particular bartender was blind. During the course of the conversation with Frances, Officer Bates inquired of Frances on the subject of the possibility that Bates might purchase "reefer," meaning the controlled substance marijuana, in the bar. Frances replied that he could not point out anyone selling "reefer" specifically, but all that all that was necessary on Bates' part to obtain "reefer" was to ask around the licensed premises. Officer Bates returned to the licensed premises in the early morning hours of January 17, 1981, with the express purpose of attempting to buy marijuana in the licensed premises. While there, Bates spoke with Frances again and asked where he could buy "reefer." The response by Frances was as before, in that he indicated that the officer should inquire around the licensed premises. To that end, Officer Bates spoke to a customer identified as "Red" who also, upon being asked about the purchase of marijuana, told Bates that he could ask around the licensed premises about the purchase of "reefer." This same customer indicated that the management did not allow the sale of marijuana in the bar. On January 17, 1981, on this particular visit, Sergeant Bates saw a person in the licensed premises who was dressed in a uniform. (This individual was located in the package store which is the locale where the alcoholic beverages were being sold for consumption off premises. The bar area is separate from the package store and customers bring the alcoholic beverages that they have purchased from the package store into the bar area where they may purchase mixers from the bartender to be used with the alcoholic beverages which they purchased separately.) Sergeant Bates made an additional visit to the licensed premises on January 29, 1981, and this was the first occasion of visits in which he saw the bar manager, Theodore Ferguson, Jr. On January 16, 1981, Beverage Sergeant Allen F. Nash, went to the licensed premises in an undercover capacity to ascertain if drugs could be purchased in the licensed premises. He arrived at around 1:45 A.M. and remained until approximately 2:50 A.M. in the licensed premises. No purchases were made in the licensed premises, but upon leaving the building at approximately 2:50 A.M., and while just outside the doorway, the officer encountered a man who was advertising that he had drugs for sale. Officer Nash inquired of the individual what was for sale and the man responded that he had "bags" meaning bags of marijuana. A deal was struck and Officer Nash bought a $7.00 bag of marijuana from the subject. The marijuana was a controlled substance. On January 20, 1981, Sergeant Nash returned to the licensed premises at approximately 11:55 P.M. At that time, he was in the company of another Beverage Officer, Phyllis Williams. The officers entered the bar area and took a seat at the bar proper. At around 1:15 A.M., on January 21, 1981, Nash spoke with an unidentified male patron and asked if that individual knew where he could get some "reefer." The patron indicated that he had $3.00 "bags" for sale. In turn, Nash told the man to give him two "bags" and a purchase of the controlled substance marijuana was made for a price of $6.00. The exchange of money and marijuana was made at the bar proper at a level above the bar. The same bartender, Frances, was behind the bar on this occasion. (Nash did not observe any uniformed security guards on the premises.) At around 1:50 A.M. on January 21, 1981, while Officers Nash and Williams were seated at the bar, a different male approached them and Nash asked this individual if he had marijuana. That individual replied that he had "joints and bags" meaning different increments of marijuana. Officer Williams asked how much the man would charge and he replied that the cost would be $7.00 for a "bag." She purchased two separate "bags" of marijuana for a total cost of $14.00 and the individual gave her a complimentary marijuana cigarette. This form of marijuana purchased was a controlled substance. The purchase was made at the bar and at a level above the bar. The two officers left the licensed premises around 2:00 A.M. on January 21, 1981, and as they walked out the door, they overheard an individual say that cocaine was for sale and that "I've got the best girl in the world." Officer Williams asked the individual for two "caps" of cocaine. The individual indicated that the price was $10.00 a "cap" and that he only had one "cap." She paid him $20.00. He gave her the "cap" that he had and went back in the licensed premises and returned with the second "cap." The so called "caps" were in tinfoil packs and contained the substance cocaine which is a controlled substance. Sergeant Nash returned to the licensed premises on January 24, 1981. He entered the bar area and while there, saw an elderly man in a security guard uniform cleaning up, that is, mopping and sweeping. Although Officer Nash was there for the purpose of seeing if he could purchase controlled substances while operating in an undercover capacity, he did not make purchases in the bar proper. Officer Nash did make a purchase outside the licensed premises approximately four (4) feet from the door and this purchase was made around 2:40 A.M. The purchase was made from a man who had individual marijuana cigarettes and who sold Nash five marijuana cigarettes, which were controlled substances. Officers Nash and Williams went to the licensed premises in the early morning hours of January 28, 1981, for purposes of attempting to purchase narcotics while operating in an undercover capacity. At that time, they were unsuccessful in making those purchases. The officers returned to the licensed premises in the evening hours of January 28, 1981, at around 9:30 P.M. When they approached the front door of the licensed premises, a man who was approximately four (4) feet from the front door, stated that he had "joints" for sale for a dollar. This meant marijuana cigarettes for $1.00 each. Two other people were standing with this individual when the officers approached. The officers purchased five marijuana cigarettes from the man for the price of $5.00. The marijuana was a controlled substance. Once the officers went inside, on the evening of January 28, 1981, and while at the bar proper, a man approached Officer Williams and said that he had marijuana for sale. Officer Williams purchased ten marijuana cigarettes, a controlled substance, for a price of 10.00, which the man extracted from a clear plastic bag. Part of this transaction occurred at the level above the bar. At that time, a woman was behind the bar serving as bartender. No uniformed security guards were seen on this visit. During all of the transactions that took place in the licensed premises involving Officers Nash and Williams, no covert acts were taken on the part of the sellers to keep employees of the licensee from seeing those activities. No employees of the licensee took part in any of the sales either in the licensed premises or immediately outside the building. On all occasions, the bar was crowded and noisy. The two officers did not observe other sales of narcotics being made while in the licensed premises and while there on January 28, 1981, in the early morning hours, they were asked to move away from the door and this request was made by a security guard. The officers never made purchases from the same individual twice. On January 21, 1981, Beverage Officers Redis Thompson and Eddie Alford went to the licensed premises. They arrived at approximately 11:30 P.M., entered the building and sat at the bar in the center portion. Three men were at the southern extreme of the bar smoking and one of those individuals left the group and approached Officer Thompson. At that juncture, the man asked Thompson if he wanted to buy some "smoke." This meant marijuana. Thompson asked him what he had and the individual took out a cellophane packet containing marijuana cigarettes. Thompson asked him how much they cost and the individual replied that it was one dollar. At that point, Thompson purchased twenty (20) marijuana cigarettes, a controlled substance for a price of twenty dollars. In the early morning hours of January 22, 1981, while at the bar, the two officers were approached by an individual identified as "Larry." "Larry" indicated that he had some "good coke" and "grass." These terms referred to mean cocaine and marijuana. Thompson indicated that he would like to buy some cocaine and did purchase cocaine from the individual "Larry" for the price of $10.00. This cocaine is a controlled substance. Officer Alford also purchased cocaine on this occasion from a man identified as "Spider" who sold Alford three containers of cocaine for a price of $25.00. This cocaine is a controlled substance. The transactions with "Larry" and "Spider" took place at the bar area at a level above the bar. This same individual "Spider," consumed a portion of the cocaine by "snorting," that is, ingesting the material through his nostrils. On January 28, 1981, at around 1:00 A.M., Officers Thompson and Alford entered the licensed premises and went to the bar and took their seats. The same man identified as "Larry" came over to them and asked if they wanted some "smoke." This meant marijuana. "Larry" produced marijuana cigarettes and charged Thompson five dollars for five marijuana cigarettes, a controlled substance. On this occasion, no security guards were observed at the licensed premises by either of the officers. While the two officers were in the licensed premises on the occasions mentioned, the premises ware crowded and noisy. Employees of the licensed premises did not participate in any of the drug transactions, which took place during the visits, ranging from forty minutes to two hours. On January 29, 1981, a search was conducted on the licensed premises related to action by the Petitioner and this search did not reveal the presence of any form of narcotics. As mentioned before, the bar manager, during the time in question, was one Theodore Ferguson, Jr. In keeping with the policies of the ownership, certain signs have been posted in the licensed premises calling to the attention of the patrons the management policy against the delivery or sale of drugs, the use of drugs and the fact that management could prosecute and hold those persons liable who violated these conditions. Notwithstanding these prohibitions, one of the employees of the bar "Miss Frances" made mention to Sergeant Bates the matter of the availability of controlled substances in the licensed premises. Ferguson identified a management policy to ask people who have drugs to leave the premises and grounds around the premises and the efforts to call law enforcement to assist in this undertaking. Employees of the bar wear identification tags and there are security guards who report to Ferguson if drug violations or loitering is observed on the part of patrons. At the time of the investigation, some of the security guards had green caps with shields and green shirts and pants. Other security guards were in street clothes and this group constituted the majority of security personnel. In the past, patrons have been asked to leave for violating the prohibitions against loitering or drug usage, possession or sale and the authorities have been called. The security guards are instructed to inspect the parking lot as well as the inside of the licensed premises. Nonetheless, there were times in January, 1981, during the pendency of the investigation referred to in this matter, in which the number of desired security guards and the number to which the licensee had stipulated with the Petitioner would be provided as security, were not available. See Petitioner's Composite Exhibit No. 1. (This stipulation settled a complaint by the Petitioner against the licensee for nuisance activities at the premises, wherein patrons were suspected of using narcotics at the licensed premises, and wherein the stipulation incorporated terms of a stipulation between the Respondent's owners and the Dade County, Florida, State Attorney's Office.) The problem with having sufficient numbers of security guards was due to a high turnover. There was other difficulty related to maintaining the security guards in uniform due to removal of the uniforms by former security guards and the fact that the uniforms did not fit replacement security guards. As a result, at some point in the January, 1981, time period, Ferguson made the decision to put all security guards in street clothes, with the exception of one uniformed security guard. Ferguson, as bar manager, is routinely at the bar for a period of 12 to 14 hours a day, as much as 20, and at times has worked 30 hours straight. When he is absent from the bar, it is ordinarily between the hours of 5:00 P.M. and 11:00 P.M. Since January 29, 1981, ownership has taken steps to provide all security guards with uniforms which are constituted of shirts with the word "security" written on them. During January, 1981, Ferguson established through his testimony that the security personnel also fulfilled custodial functions in the licensed premises. Ownership of the licensed premises has left the management of the licensed premises in the period January, 1981, in the hands of Ferguson and visits by ownership to the licensed premises were infrequent and not ordinarily at a time when the bar was having its peak business cycle.
