Findings Of Fact Respondent holds alcoholic beverage license no. 39-651, Series 4-COP, which applies to its business known as Library Lounge, located at 10924 Nebraska Avenue, Tampa, Florida. Respondent was so licensed at all times relevant to this proceeding. Tampa Police Department Detective Robert Ulriksen was in the licensed premises in an undercover capacity during November and December, 1980. On November 30, he purchased three grams of cocaine from the dancer-employee Lila Colvert. The purchase was made openly and involved at least one other person who gave Colvert the packet which was later identified as cocaine. Ulriksen paid Colvert $25 for the packet. Tests performed by the Florida Department of Law Enforcement Crime Laboratory (FDLE) estab1ished that the substance purchased by Ulriksen was, in fact, cocaine. Ulriksen purchased three purported Quaalude tablets from the dancer- employee Barbara Ann Smith for ten dollars during a visit to the licensed premises on December 2, 1980. Tests performed by FDLE established that the tablets were Quaaludes (methaqualone) Ulriksen again visited the licensed premises on December 5, 1980. On this occasion he purchased three tablets from the dancer-employee Lila Colvert, which she represented as Quaaludes. FDLE tests established that these tablets were Quaaludes. On December 7, 1980, Ulriksen was again in the licensed premises. On that occasion he purchased four tablets, that were later determined to be quaaludes by FDLE. He purchased these tablets for $12 from the dancer-employee Barbara Ann Smith. Ulriksen visited the licensed premises on December 9, 1980, and purchased four tablets which were later determined by FDLE to be Quaaludes. Ulriksen purchased these tablets from the dancer-employee Brenda Sue Parr for $15. On December 12, 1980, Ulriksen was in the licensed premises and discussed a purchase of quaaludes with the dancer-employee Tammy Yates. She took Ulriksen to the dancers' dressing room where she removed five Quaaludes from her purse. Ulriksen paid her $15 for these tablets, which were determined to be Quaaludes by FDLE. The dressing room transaction was observed by the manager, Gaskins, who told Ulriksen to leave. The testimony of FDLE personnel and Tampa Police Department employees who secured the substances purchased by Ulriksen established that this evidence was properly controlled throughout the investigation. There was no indication whatsoever of tampering or other improper handling of the substances. In mitigation of these charges, Respondent established that it has cooperated with the Tampa Police Department in the investigation of its employees and third persons who were involved in the drug trafficking. Subsequent to the arrest of these employees, Respondent adopted preemployment screening procedures and currently has no female entertainers employed in the licensed premises.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of all charges contained in the Notice to Show Cause/Administrative Complaint and suspend Respondent's alcoholic beverage license no. 39-651 for a period of thirty days. DONE and ENTERED this 19th day of July, 1982 at Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1982.
Findings Of Fact Bay Street, Inc., trading as Howard's G" String, is located at 102 E. Bay Street, Jacksonville, Florida. This facility has been licensed by Petitioner at all times relevant to these proceedings, (Beverage License No. 269l9, Series 4-COP) Case No. 81-1825 contains ten counts, five of which were voluntarily dismissed by Petitioner. The remaining counts involve alleged lewd and lascivious acts and an alleged offer to commit prostitution. These charges were based on an undercover investigation by the Jacksonville Sheriff's Office in May, June, August and September, 1980. The testimony of Officer Beacham established that on May 8, 1980, the dancer Karen Wood rubbed a male patron's groin with her buttocks and the dancer Rosetta Smith allowed a male patron to rub her groin area. This conduct took place while the dancers were performing for individual customers. In both cases, their breasts were bare and in close proximity to the patrons' faces. The testimony of Officer Bennett established that on June 26, 1980, the dancer Catherine E. Maryon permitted a male patron to fondle her groin area and to fondle her nude breasts. This conduct continued over a period of about five minutes while Maryon was performing for the patron. The testimony of Officer Hall established that on August 30, 1980, the dancer Darlene Veldon Hughes allowed a male patron to massage her genital area and the insides of her legs while she was performing for him. She wore a bikini brief, but was otherwise nude during this procedure. The testimony of Officer Perret established that on September 2, 1980, the dancer Trudy A. Blincoe offered to engage in sexual intercourse with him for $100. This was established by the nature of their discussion and her statement that she would give "no oral sex, just straight sex." Petitioner conducted a separate investigation of Respondent in February, 1981, through its beverage officers who visited the licensed premises in undercover capacities. This investigation culminated in the 29 charges contained in Case No. 81-1824. The testimony of Beverage Officer Johnson established that the dancer Belinda asked him to buy her a drink on February 11, 1981. The drink was delivered by the bartender-waitress, Kathy, who received the money for the drink. Kathy also approached Johnson and the dancer Laura on that date, and asked if Laura wanted another drink. Laura then asked Johnson for a drink, which he purchased from Kathy. Johnson's testimony further established that the dancer Ursala Kadlecik asked him to purchase a drink for her on February 27, 1981. The testimony of Beverage Officer Arguelles established that on February 18, 1981, the dancer Barbie asked him to buy drinks for her on two occasions. Arguelles purchased the drinks as requested. The testimony of Beverage Officer Lachman established that on February 11, 1981, the dancers Susan and Elizabeth each asked him to buy drinks for them, and on February 14 and 27, 1981, Susan again asked Lachman to buy drinks for her. On February 18, 1981, the dancers Karen, Angie and April each asked Lachman to buy drinks for them. He purchased the drinks as requested on each of these occasions. The testimony of Beverage Officer Balaguer established that on February 12, 1981, the dancer Belinda asked him to buy her a drink and on February 18, 1981, the dancer Laura asked him to buy her a drink. He purchased the drinks as requested. The testimony of Beverage Officer Sams established that on February 25, 1981, the dancer Belinda asked him to buy her a drink. She repeated the request and Sams purchased the drink. The testimony of Beverage Officer Johnson established that on February 12, 1981, the dancer Marty approached him and performed her dance at his table. During this procedure, she rubbed his hand against her groin and also held it against her nude breast. The testimony of Beverage Officer Lachman established that the dancer Susan performed dances at his table on February 25 and 27, 1981. On each occasion she rubbed her nude breasts against his face. The testimony of Beverage Officer Johnson established that on February 5, 1981, the dancer Susan suggested a "date" to him. She stated that the price was $75 for the night and $25 as a penalty for her to leave the bar. She also stated that they would go to a motel and she would do "anything he wanted." Johnson's testimony further established that on February 11, 1981, the dancer Lisa suggested that she and Johnson go to a "party" at a motel. She stated that the price for this would be $30 for the bar plus either $50 for one- half hour, $100 for an hour or $200 for the whole-night. She also said Johnson could do "anything" so long as he did not "get rough." The testimony of Beverage Officer Arguelles established that on February 28, 1981, the dancer Lucy Brightwell offered to "go out" with him. She stated that the charge for this service was $100, which included $25 to leave the bar. She told Arguelles that he could do anything he wanted except "the back door." She also motioned to her vaginal area and stated, "straight fuck." The testimony of Beverage Officer Lachman established that on February 27, 1981, he discussed leaving the bar with the dancer Ramona Strickland. The discussion involved three dancers leaving with the three undercover beverage officers (Lachman, Sams and Rowe) . Strickland stated that the price would include $25 for each dancer to leave the bar and a total charge of $248. Lachman later paid the bartender-waitress, Kathy, $88 for the three dancers to leave the bar. The testimony of Beverage Officer Sams established that he discussed going to a hotel room with the dancer Belinda on February 27, 1981. She stated that the charge for this would be $25 to leave the bar and $50 per one-half hour for each dancer. The testimony of Beverage Officer Rowe established that on February 25, 1981, he discussed "going out" with the dancers Laura and Belinda. He asked Laura if he would "get his money s worth," and she said that he would and that she was "good in bed." Rowe continued the discussion on February 27, 1981, when he asked Laura if the "deal was still on." She stated that it was and asked him if he had made room arrangements. Laura also stated that she did not want "to fuck" in the same room with others. Rowe also discussed the transaction with the bartender-waitress, Kathy, who told him to meet the dancers at the side door and to have them back in 30 minutes. Although no records were produced to establish that the dancers identified herein were employed by Respondent, the fact of employment was evident from the control exercised over them by the bartender-waitress, their costumes, their periodic dances on stage and their movements from one customer to another while performing individual dances and collecting fees for this service. Testimony in this regard was given by all Petitioner's witnesses and was not rebutted by Respondent. It was not shown that the identification of some dancers by their first names or nicknames only created any ambiguity in the charges or prejudice to Respondent.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner find Respondent guilty as charged in Counts l through 7, 9 through 17, 19, 21 through 24 and 26 through 29, Case No. 81-1824, and Count 9, Case No. 81-1825. It is further RECOMMENDED that Petitioner dismiss all other charges against Respondent. It is further RECOMMENDED that Petitioner suspend Respondent's alcoholic beverage license no. 26-919 for a period of 45 days. DONE and ENTERED this 26th day of August, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1982.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Troy E. McCoy, trading as McCoy's Chevron Station in Marianne, Florida, held current alcoholic beverage License No. 42-71, issued by the State of Florida. This license is a 1-COP license. On September 18, 1983, Harold Glisson, a Deputy Sheriff with the Jackson County Sheriff's Department, was engaged in surveillance on property owned by a Mr. Maloy and a Mr. Harding located in Jackson County, Florida. Information had been presented from other deputies, specifically Deputy Wing T. Morris, that a growing plant which he recognized as marijuana had been spotted on the property from the air. Glisson arrived at the property between 1:00 and 2:00 p.m. After looking the property over, the deputies went back to the office to change clothes and pick up the gear necessary for their surveillance. They returned to the property at approximately 7:00 p.m. on September 18 and sat waiting in the dark. Mr. Glisson was located at the southeast corner of the property near Interstate Highway 10. At approximately 10:15 in the evening, Respondent and another individual subsequently identified as Vic Williams passed Deputy Morris, who was also involved in the surveillance, walking toward the field where the marijuana was located. Morris, who had a hand-held radio, called on ahead to Mr. Glisson and advised that two individuals were heading toward him. When the Respondent and Williams came to the area where Glisson was located, Glisson stood up, identified himself, and notified the two that they were under arrest. Williams stayed where he was, but Respondent started running and was apprehended approximately 50 to 75 yards away. At this point, Williams had seven plants subsequently identified as marijuana over his shoulder. Respondent was carrying nothing other than a pocketknife, a flashlight, and some string in his back pocket. After Respondent was apprehended, he was transported to the Jackson County Jail. The field was kept under surveillance all the rest of the night and, when dawn came, deputies pulled out in excess of 290 marijuana plants which were subsequently weighed and determined to weigh approximately 800 pounds, including roots, stalks, stems, etc. After the vegetable matter was dried and stripped down to just limbs and leaves, the net weight was, nonetheless, 117 pounds. This vegetable material was subsequently taken to the Florida Department of Law Enforcement laboratory in Pensacola, Florida, where it was analyzed and determined to be marijuana. The land on which the marijuana was growing was owned by Mr. Harding, for the most part. Mr. Harding was not interrogated by the police regarding this situation, even though he lived on the property. There is some controversy as to whether the deputy who confronted Respondent and Mr. Williams identified himself as a deputy at that time. The deputy contends that he did. Mr. McCoy, on the other hand, contends that he did not, indicating that he was suddenly confronted in an area where he had been advised marijuana was being cultivated by an individual who rose up in front of him, shined a light in his face, and cocked a shotgun; and it was the combination of these factors which caused him to run, fearing that his confronter was someone involved with the growing of the marijuana. This explanation is reasonable, and Respondent's reaction, even if the deputy identified himself as such, is not necessarily indicative of culpability. Respondent indicates that he went to the site voluntarily, knowing or believing that marijuana was being grown there. He indicates that earlier in the evening Mr. Williams had come to his gas station and in the course of conversation related that he had seen a place where marijuana was being grown. Respondent contends that for no other reason than just to see what marijuana looked like growing he decided to accompany Mr. Williams back to the site. It is at this point when he was apprehended. It is significant to note that at the time of apprehension the parties were exiting the marijuana patch and Mr. Williams had several marijuana plants over his shoulder. Williams admits that he had taken them for his own purpose and use. His knowing possession of marijuana, however, does not necessarily require the conclusion that Respondent either owned, possessed, or controlled it. Respondent is a respected businessman who has lived in the community for many years. His business associates know him as an excellent customer who has worked hard and improved his business. He is also known to have a good reputation with the bank and to be a good family man who conducts both his personal and business lives in a highly moral fashion. Respondent has no criminal record, and there is no record of any beverage violations over the six years he has held his beverage license. Respondent operates a gasoline station, grocery, fish bait, feed, and all-around general store. His alcoholic beverage license is for the sale of beer. His alcoholic beverage business constitutes at least 50 percent of his nongasoline business. His operation is the one place in the area where individuals who are going fishing, hunting, camping, or picnicking can come to pick up all of their supplies, including beer, in one place. He contends that if his alcoholic beverage license were suspended or revoked it would have serious adverse consequences upon his business and would very possibly have the ultimate effect of putting him out of business since he could not make his debt service without the beverage business. This estimate was confirmed by Mr. Miller, the jobber who supplies Mr. McCoy with his gasoline and who has invested substantial sums in Mr. McCoy's business for the purpose of improvement. It is these sums which could not be paid off if Respondent were to lose his license. On March 27, 1984, Respondent entered a plea, waiver and consent in the Circuit Court for Jackson County, Florida, on charges alleging trafficking in over 100 pounds off cannabis in violation of Section 893.135(1)(a), Florida Statutes. Respondent entered a plea of guilty to the crime of attempted trafficking. That portion of the form where Respondent was required to state the facts which resulted in the charges contains the comment "I was found and arrested in a wooded area at night where cannabis was growing." As a result of his plea, Respondent was required to pay a fine of $10,000 (notwithstanding counsel for Petitioner's representation that the fine was $25,000) and sentenced to spend every night and weekend in the county jail for a term of one year.
The Issue Whether respondent's alcoholic beverage license should be disciplined for five solicitations of alcoholic beverages; two solicitations for purpose of prostitution, assignation, or lewdness; and one incident of gross, lewd, and lascivious behavior allegedly committed on the licensed premises by respondent's employees.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license no. 16-2052, Series 2-COP be revoked for multiple violations of the Beverage Law. DONE and ENTERED this 23rd day of June, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1983. COPIES FURNISHED: John A. Boggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Sy Chadroff, Esquire and Lane Abraham, Esquire Suite 800 200 S. E. First Street Miami, Florida 33131 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Petitioner, vs. CASE NO. 83-388 DABT CASE NO. 33943-A C & A LOUNGES, INC. d/b/a ORANGE TREE LOUNGE, Respondent. /
The Issue Whether the respondent's alcoholic beverage license should be disciplined on charges of violating Chapters 561 and 562, Fla. Stat. (1981), the Florida Beverage Law.
Recommendation Based on the foregoing, it is RECOMMENDED That respondent's alcoholic beverage license be revoked for multiple violations of the Beverage Law. DONE and RECOMMENDED this 25th day of April, 1983 in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1983.
Findings Of Fact No evidence was offered at the hearing to establish that the Licensee holds a beverage license issued by the State of Florida, Department of Business Regulation, Division of Beverage. It is alleged in the Agency's Notice to Show Cause that the Licensee holds beverage license number 52-207. No issue was raised as to whether the Licensee holds a beverage license. It will be assumed for the purpose of this order that the Licensee holds beverage license number 52-207. No admissible evidence was offered or received at the hearing to establish that the Licensee has violated any provisions of Florida Statutes s. 561.29 as is alleged in the Notice to Show Cause issued by the Agency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondents be found guilty of violating Subsection 561.29(1)(b), Florida Statutes, and that a $100 fine be imposed upon each, said fine to be paid within fifteen days of the final order entered in this cause. DONE and ENTERED this 28th day of October, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER 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 28th day of October, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire 725 South Bronough Street Tallahassee, Florida 32301 Mr. Frank Piehl 4738 Ocean Street Mayport, Florida 32233 Howard Milan Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue A notice to show cause dated February 21, 1990, alleges that Respondent licensee sold beer to a person under the age of 21 on three occasions. The issue for determination is whether those allegations are true, and if so, what discipline is appropriate.
Findings Of Fact At all times material, Respondent, Convenience Alley, Inc. held alcoholic beverage license number 15-019272-APS, for the premises located at 5020 Minton Road NW, Palm Bay, Brevard County, Florida. On Saturday April 29, 1989, at the request of the City of Palm Bay Police Department, the Division of Alcoholic Beverages and Tobacco (DABT) participated in a joint operation with the Palm Bay police and the City of Melbourne police. The law enforcement agencies had received a series of complaints regarding the sale of alcohol to minors in the Palm Bay area. In the early evening, sometime between 6:00 p.m. and 7:00 p.m., Amy Dvorak, a 17-year old underaged operative working with Sgt. Gordon Myers, an investigator with DABT, entered Respondent's licensed premises and purchased a sealed 6-pack of Budweiser beer from the clerk, Lisa McCormick. The clerk did not ask Ms. Dvorak's age and did not request her identification. Like all other underaged operatives working with DABT, Ms. Dvorak had parental permission to participate. She wore light makeup and appeared to be under 21 years of age at the time of the operation. She was casually dressed and her face and hair were fully exposed. Ms. Dvorak was instructed to carry legitimate identification and to produce it, or respond truthfully if requested. Convenience Alley is primarily a drive-through establishment where most customers are served while they wait in their automobiles. There is a walk-in entrance, however, and Ms. Dvorak made her purchase on foot. After exiting the premises, she gave the beer to the waiting law enforcement officers. The evidence was marked and placed in the inventory of the Palm Bay Police Department, where it was later destroyed in accordance with the department's policy of destroying evidence that is over one year old. Palm Bay Police Department property report #89-08883, maintained by Officer P. Scholem, documents the disposition of the 6-pack of beer. Melbourne Police Detective Ronald King observed the sale to Ms. Dvorak. Afterwards he approached the clerk, Lisa McCormick, under direction of Palm Bay Police Detective Paul Scholem and arrested her for unlawful sale to a minor. On May 3, 1989, Sgt. Myers mailed an "official notice" to the licensee, Convenience Alley, stating that the arrest had been made and warning that future violations could result in a charge against the license. On November 21, 1989, around 6:50 p.m. Sgt. Myers revisited Convenience Alley with another underage operative, James Core, Jr. As Sgt. Myers stood outside in the shadows, the youth drove through in his own vehicle and purchased a 6-pack of Budweiser beer. James Core was 19 years old and was attending the local police academy at the time. He was clean-shaven and looked his age. As he made the purchase, the clerk laughingly said to him, "Shouldn't I be checking your I.D.?" He responded, also in a joking manner "Yes, ma'am." Nothing more was said, and Core did not offer his license. After the purchase, James Core drove into the parking lot and gave Sgt. Myers the beer and change from the $10.00 he had been given for the purchase. Sgt. Myers went into the establishment and issued an arrest citation to Valerie Britts, the clerk. DABT sent Convenience Alley a notice, titled "Final Warning" dated November 27, 1989, stating that the next violation would subject the licensee to formal revocation or suspension proceedings. On February 7, 1990, Sgt. Myers returned to Convenience Alley with George Madden, a 20 year old recruit from the police academy, also clean shaven and casually dressed. George Madden drove through in his own vehicle with two beverage agents behind him in their vehicle. He asked for the 6-pack of Budweiser. The clerk returned with the beer and asked for his identification. Madden showed his driver's license; the clerk looked at it and sold him the beer. George Madden's birthdate is 11/30/69. His driver's license reflects this, and is stamped "Under 21", across the front. The stamp, however, obscures one digit of the 11, making his birthdate appear, without close scrutiny, to be 1/30/69. The clerk, Keith Wayne Lewis, read the birthdate as January. Since the incident occurred in February 1990, Lewis figured his customer had just turned 21, notwithstanding the stamp and yellow background on the photograph. A few minutes after the sale Sgt. Myers arrested Lewis. On February 8, 1990 Sgt. Myers sent Convenience Alley a notice of intent to file a notice to show cause, citing the recent, as well as two previous arrests of employees. On each occasion noted above, the store and drive through area were well-lit. The three operatives were appropriately trained and none appeared old beyond his or her years. None had been in the premises before. The DABT has written policies and procedures, dated July 1, 1989, governing the investigation of sales to minors and the use of underage operatives. The agency generally will not proceed against a licensee until there have been three violations, unless the licensee (owner) is on the premises making the sale or observing it. The policy guide suggests that the second sale should be on a different date, time or shift than the first, and within three to eight weeks after the official notice has been issued to the licensee. The third sale should be on a still different date, time or shift than the first two sales, and within three to eight weeks after the letter of final warning has been received by the licensee. The three sales in this case do not conform to those written guidelines. Instead of three sales over a period of approximately two months, this case involves three illegal sales in approximately ten months. Linda Beard is the Vice-president/Secretary and part owner of Convenience Alley, Inc. Her sister-in-law, Barbara Thomas is Treasurer and part-owner. A third owner, Terry Loy, is President and is unrelated. None of the owners was on the premises at the time of the sales which are the subject of this proceeding. The licensee owns only this one location. One of the two women works at the store every day and closes up the premises every night. Respondent did not provide formal training to its employees in the past, but now administers the "responsible vendor" test, which it obtained in March, after the third violation. The store has always had a sign near the cash register facing the clerks, reminding them to check ID's and giving the birthdates by which persons may legally purchase alcohol and tobacco. After the first violation, Linda Beard requested that DABT send her a poster explaining the new format for driver's licenses adopted on July 1, 1988. The poster was sent, but it was a black and white photocopy, and arrived in an envelope with $.10 postage due. The agency provides such aids to licensees as a courtesy. Sgt. Myers offered training to Convenience Alley's employees, but Linda Beard felt that since they were primarily part-time, it would be difficult to schedule the training, so she did not take advantage of the offer. Instead she relied on careful recruiting. The employees were only hired on good recommendations. Keith Lewis, for example, had experience in other convenience stores and is the son of a local police officer. She also admonished the employees to check IDs and warned that no sale is worth an arrest or the loss of a license. The owners now use a colored poster to train the clerks themselves. They also point out to the employees how difficult it is to read the birthday with the "Under 21" stamp superimposed.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That a final order be entered dismissing the February 21, 1990 notice to show cause. DONE and RECOMMENDED this 8th day of October, 1990, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1990. APPENDIX The following constitute rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraphs 3-5. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 14. Adopted in paragraph 7. Adopted in substance in paragraph 18. Rejected as immaterial. Respondent obtained the poster. and 11. Adopted in paragraph 8 and 9. 12. and 13. Adopted in paragraph 14. Adopted in paragraph 9. Rejected as unnecessary. and 18. Adopted in substance in paragraph 11. Rejected as unnecessary. Adopted in paragraph 14. Adopted in paragraph 13. Rejected as unnecessary. Adopted in part in paragraph 12. The date is legible if the observer is looking for second digit; it is not in plain sight. and 25. Rejected as unnecessary. Adopted in paragraph 16. Adopted in paragraph 14. Rejected as cumulative and, as to non-misleading actions, contrary to the weight of evidence. No one lied and each operative followed the specific instructions. However, Operative Core's response was, in the context, sufficiently ambiguous as to mislead the clerk. Respondent's Proposed Findings of Fact ["Point 2"] Rejected as unnecessary. ["Point 3"] Rejected as unnecessary. ["Point 8"] Adopted in substance in paragraphs 17 and 18. ["Point 11"] Adopted in part, as to the response, in paragraph 9, otherwise rejected as unsupported by the evidence. Petitioners were not "out to get" Respondents, according to the evidence in this case. and 6. ["Point 16" and "Point 24"] Rejected as unnecessary. ["Point 26"] Adopted in paragraph 16. and 9. ["Point 33" and "Point 37"] Rejected as unnecessary, except as addressed in paragraphs 12 and 15. COPIES FURNISHED TO: Robin L. Suarez Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Linda J. Beard, Vice-President/Secretary Convenience Alley, Inc. 5020 Minton Road, N.W. Palm Bay, FL 32907 Joseph Sole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Leonard Ivey, Director Dept. of Business Regulation The Johns Building 725 S. Bronough St. Tallahassee, FL 32399-1000
Findings Of Fact Between June 6 and October 3, 1980, Petitioner's beverage officers and representatives of the Polk County Sheriff's Department conducted an undercover investigation of the Oasis Lounge in Ft. Meade. The business is operated by Milton Haverty who holds alcoholic beverage license No. 63-775. The manager- bartender during this period was John Haverty, the Respondent's son. On June 12, 1980, Beverage Officer West and Sgt. Allen of the Polk County Sheriff's Department visited the licensed premises in an undercover capacity. On that date, Martha Ann Berry delivered a beer to Beverage Officer West and accepted his payment for it. Both Officer West and Sgt. Allen observed Berry serve beer to another patron. Berry had been reported to the Polk County Sheriff's Department as a runaway juvenile. However, there was no evidence presented in this proceeding to establish that she was under 18 years of age at the time she delivered the alcoholic beverages. During the June 12, 1980, undercover visit to the licensed premises, the investigators openly discussed stolen property and were subsequently approached by John Haverty who asked that they obtain a T.V. set for him. Haverty and Sgt. Allen had further discussions about the T.V. set and a "stolen" outboard motor on June 20 and 24, 1980, again on the licensed premises. On June 27, the motor which was represented as stolen property was delivered to Haverty. In exchange for the motor, Haverty gave Allen three bags of marijuana (less than 20 grams) The transaction took place on the licensed premises. A subsequent sale of electronics equipment represented to be stolen goods was made by Allen to John Haverty on the licensed premises October 3, 1980. Haverty paid Allen $75.00 for these items.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner dismiss the Notice to Show Cause. DONE AND ENTERED this 30th day of July, 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1981. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Milton Haverty Oasis Lounge 115 South Charleston Ft. Meade, Florida 33841
The Issue The issue is whether the facts alleged in the Notice to Show Cause in this case are true and whether those facts, to the extent that they are true, warrant revocation, suspension or other discipline of the license of Respondent. The Notice to Show Cause explicitly alleges several drug-related and one disorderly conduct violations on the licensed premises and implicitly alleges the Respondent's culpable responsibility for the violations under Section 561.29(1)(a), Florida Statues. The Notice To Show Cause also alleges that Respondent maintained the licensed premises as a place where controlled substances were illegally kept, sold, or used in violation of Sections 823.01 and 561.29(1)(e), Florida Statutes and Sections 893.13(2)(c) and 561.29(1)(a), Florida Statutes.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: At all times relevant hereto, the Respondent, Rene Tamer, held alcoholic beverage license number 23-07334, series 2-COP, for the licensed premises known as El Emperador, located at 36-38 Ocean Drive, Miami Beach, Florida. On January 27, 1986, Beverage Investigator Carlos Baixauli went to the licensed premises of El Emperador. While there, he saw a black latin female walk over to a dog that was lying on the floor. Baixauli heard the woman ask the dog in spanish if he (the dog) wanted to have sex. The woman then fondled the dog's penis for approximately 20 minutes. Night manager Luis Tamer was present when this incident occurred. On February 5, 1986, Investigator Baixauli, while inside of the licensed premises of El Emperador, arranged to purchase one gram of cocaine from a white latin male, known as El Indio (the Indian). El Indio told Baixauli that he needed the $60.00 "up front." When Baixauli expressed concern as to whether El Indio would return with the cocaine or his money, El Indio stated that he worked at El Emperador, was always around and could be trusted. Baixauli gave El Indio $60.00. El Indio left the premises, returned and handed Baixauli a small plastic package of cocaine wrapped in a white napkin. Baixauli opened the napkin and conspicuously inspected the package of cocaine by holding it up to approximately eye-level and tapping it with his fingers. Luis Tamer was present and behind the bar at the time. On February 10, 1986, Investigator Baixauli visited the licensed premises of El Emperador. While Baixauli was at the bar talking to on-duty manager Luis Tamer, El Indio went over and asked Baixauli if he wanted to buy some "yeyo," a Spanish term for cocaine. Baixauli agreed to purchase one gram of cocaine and gave El Indio $60.00. El Indio subsequently returned and again interrupted a conversation between Baixauli and Luis Tamer. El Indio handed Baixauli a matchbook, from which Baixauli removed a plastic package containing cocaine. Baixauli held up the package and showed to his partner Garcia. El Indio told Baixauli that he could be found at El Emperador between 2:00 and 4:00 A.M. performing clean-up duties and at 11:00 A.M. stocking the beer coolers or running errands for Rene Tamer. On February 12, 1986, Investigator Baixauli visited the licensed premises of El Emperador. While there, Rene Tamer asked Baixauli: "Are you still working for the Division of Alcoholic Beverages?", to which Baixauli feigned ignorance and replied that he did not know what Rene Tamer was talking about. Rene Tamer, Luis Tamer and other employees then briefly retired to the kitchen where Baixauli observed them "looking out" at him as if to get a better view. El Indio arrived at El Emperador at approximately 2:00 P.M. and began stacking beers and cleaning the premises. El Indio asked Baixauli if he wanted any cocaine and Baixauli handed him $60.00 in front of Luis Tamer. El Indio later returned and handed Baixauli a matchbook. Baixauli removed a plastic package containing cocaine from the matchbook, held it up while inspecting it and showed it to his partner, Garcia. Luis Tamer was at the front counter during the transaction. On February 13, 1986, Investigator Baixauli visited the licensed premises of El Emperador. El Indio asked Baixauli if he could bring him anything. Baixauli gave El Indio $60.00 for one gram of cocaine. At approximately 4:00 P.M. El Indio returned and handed Baixauli a plastic package containing cocaine, which Baixauli held up and tapped with his finger. Luis Tamer, the manager, was standing behind the bar and observed Baixauli's inspection of the cocaine. Luis Tamer smiled and said nothing. On February 17, 1986, Investigator Baixauli visited the licensed premises of Emperador. Baixauli went to the bar and struck up a conversation with Luis Tamer. El Indio went over and asked Baixauli if he needed anything, to which Baixauli replied "yes" and gave El Indio $60.00. El Indio returned with some cocaine while Baixauli was still speaking with Luis Tamer. Baixauli removed the plastic package of cocaine from the matchbook and held it up to inspect it. Once again, Luis Tamer just smiled. On February 24, 1986, Investigator Baixauli returned to El Emperador. Baixauli went over to off-duty employee Camaquay and struck up a conversation. El Indio approached them and asked Baixauli if he wanted any cocaine. Baixauli responded that he did and gave El Indio $60.00, at which time Camaquay started laughing and said that he had been told that Baixauli was a "Narc" and must be setting up El Indio. El Indio later returned to where Baixauli was seated at the bar talking to Camaquay and manager, Luis Tamer, and handed Baixauli a matchbook. Baixauli removed a plastic package of cocaine from the matchbook and held it up for inspection, tapping it with his finger. Neither Camaquay nor Luis Tamer said anything to Baixauli. Later on in the evening of February 24, 1986, Baixauli asked Camaquay if El Indio was coming back to El Emperador. Camaquay told Baixauli not to worry, because he, Camaquay, could get cocaine from the same source as El Indio. Baixauli, after obtaining change from Luis Tamer, gave Camaquay $30.00 for a half-gram of cocaine. Camaquay later returned and tossed a plastic package of cocaine onto the bar in front of Baixauli. Baixauli held up the bag at eye level and tapped it with his fingers in view of manager Luis Tamer and other patrons. On February 26, 1986, Investigator Baixauli went to El Emperador and asked Luis Tamer if Camaquay was in. Camaquay went over to Baixauli, showed him a plastic bag containing marijuana and asked if he wanted to smoke. Baixauli said no. Camaquay then went into the restroom from which Baixauli then smelled a strong odor of marijuana. Manager Luis Tamer asked Baixauli where Camaquay was and Baixauli told him that Camaquay was in the bathroom smoking marijuana. Later at El Emperador on February 26, 1986, El Indio approached Baixauli and asked if he needed anything. Baixauli gave El Indio $60.00 for some cocaine. El Indio later returned and gave Baixauli a matchbook. Baixauli removed a plastic package of cocaine from the matchbook, held it up and tapped it with his fingers. Luis Tamer was standing behind the bar looking at Baixauli and Camaquay was standing by the pool table looking at Baixauli. After Baixauli received his cocaine from El Indio on February 26, 1986, Camaquay approached several patrons playing pool and asked if they wanted to buy drugs. Camaquay showed them a plastic package of marijuana which he took from his pocket, in full view of Baixauli, and Luis Tamer the manager, who were all looking in his direction. After Camaquay's attempt to sell marijuana to the pool playing patrons, he approached Baixauli and asked if he could bring him anything. When Baixauli agreed, Camaquay left the premises and shortly returned, tossing a plastic package of cocaine onto the bar in front of Baixauli and Luis Tamer, who was standing behind the bar in front of Baixauli. Baixauli held up the plastic bag and tapped it with his fingers. On March 4, 1986, Investigator Baixauli returned to El Emperador. Luis Tamer yelled to El Indio that his "friends" were there. El Indio approached Baixauli and Baixauli gave him $60.00. While El Indio was out obtaining Baixauli's order, on-duty employee Camaquay went over to Baixauli and asked if he wanted to buy some cocaine. Baixauli said "yes" and handed Camaquay $30.00 over the bar. El Indio returned shortly with a plastic package containing cocaine. Baixauli held up the package and showed it to his partner, Garcia. Camaquay later returned and handed Baixauli a plastic package of cocaine. Baixauli raised the bag and tapped it with his fingers. On March 11, 1986, Investigator Baixauli visited El Emperador. Luis Tamer was present and tending the bar. El Indio approached Baixauli and asked him if he needed any cocaine. Baixauli said "yes" and gave El Indio $30.00 for a half gram of cocaine. El Indio later returned and handed Baixauli a matchbook containing a plastic package of cocaine. Baixauli performed his usual post-sale inspection of the cocaine by holding the package up to approximately eye-level and tapping it with his fingers.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED that a Final Order be issued revoking the alcoholic beverage license number 23-07334, series 2-COP, held by Respondent, Rene Tamer. DONE and ORDERED this 22nd day of August, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 22nd day of August, 1986. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Professional Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927 Mr. Rene Tamer El Emperador 36-38 Ocean Drive Miami Beach, Florida 33149 Howard M. Rasmussen, Director Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, Florida 32301 James Kearney Secretary The Johns Building 725 S. Bronough Street Tallahassee, Florida 32301 Thomas A. Bell, Esquire General Counsel 725 S. Bronough Street Tallahassee, Florida 32301
