Findings Of Fact Introduction Respondent, Maximilliano N. Gonzales (respondent or Max) is the holder of alcoholic beverage license number 23-04935, Series 2-COP, issued by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). The license is used in conjunction with the operation of a lounge known as the Los Amigos Bar (bar or lounge) located at 5 Southwest 55th Avenue, Miami, Florida. Respondent and his companion, Olga, purchased the lounge in January, 1983 and have operated it since that time. Generally, either Max or Olga is on the premises supervising operations although Max was seriously injured by a customer about a year ago while breaking up an altercation and was forced to curtail his activities. Consequently, he has hired several other persons to assist him in managing the lounge during 1987. In the summer of 1987, the Division received a list of fifty Miami area establishments where the City of Miami police department suspected illicit drug transactions were taking place. RespondeV bar was one of these establishments. As a part of its investigation, the Division sent two undercover investigators (Garcia and Santana) to the lounge on August 21, 1987 to ascertain whether the police department's suspicions were well- founded. The two visited the bar on a recurring basis until October 8, 1987 when the Division issued an Emergency Order of Suspension which shut down the lounge and suspended respondent's license. That prompted the case sub judice. During their seven week investigation, Santana and Garcia observed a number of open and flagrant drug transactions and other illicit acts taking place on the licensed premises. In accordance with the parties' stipulation, these acts are summarized in chronological order in the findings below. For purposes of this order, Roberto was a patron of the bar, Carlos was its manager, and Loreno, Rosa, Lourdes, Eliza and Genny were barmaids. Further, all employees were on duty when the events herein occurred. The investigation While visiting the lounge on or about September 2, 1987, Santana and Garcia were approached by Lorena and Roberto and asked if they wished to purchase some cocaine. The investigators told Roberto that they would each be interested in purchasing a half gram of cocaine. Roberto then left the licensed premises and returned shortly thereafter and handed each investigator a half gram packet containing what appeared to be cocaine, a controlled substance. Garcia paid Roberto sixty dollars for both packets. The transaction took place "in front of the bar" and in the presence of Lorena and Rosa. The substance purchased was sent to a laboratory where an analysis confirmed it to be cocaine. On another visit to the lounge on or about September 4, 1987, Santana and Garcia were approached by Roberto concerning a purchase of cocaine. Garcia told Roberto he and Santana wished to order a half gram each. Roberto left the licensed premises and returned a few minutes later. He handed Garcia two small packets containing what appeared to be cocaine. Garcia then paid Roberto sixty dollars for both packets. The transaction took place in plain view while the investigators were seated at the bar and in the presence of Rosa. The substance purchased was subsequently sent to a laboratory where an analysis confirmed it to be cocaine. While at the premises on September 4, Santana and Garcia heard Roberto ask Rosa in a loud voice if she wanted to purchase some cocaine. A short (but loud) conversation between Roberto and Rosa then ensued while in the presence of approximately ten patrons and three other barmaids. Throughout the same evening, several patrons were observed purchasing what appeared to be cocaine from Roberto inside the licensed premises. On or about September 8, 1987, Santana and Garcia observed Roberto selling what appeared to be cocaine to numerous patrons inside the licensed premises. The investigators were later approached by Roberto who asked if they wished to purchase the drug. After Santana responded that he wished to buy some, Roberto handed him two packets containing what appeared to be cocaine in exchange for sixty dollars. The transaction took place in plain view at the bar and in the presence of Lorena, Lourdes and Eliza. In addition, Carlos was on the licensed premises when these activities occurred. The substance purchased by the investigators from Roberto was thereafter sent to the laboratory for analysis and was found to be cocaine. On or about September 10, 1987, while on the licensed premises, Santana and Garcia were approached on two occasions by Lourdes and Genny who solicited drinks from the officers. The investigators then went to the parking lot of the licensed premises, and were approached by Roberto concerning a purchase of cocaine. After Santana responded that he wished to buy some, Roberto handed Santana two small packets containing what appeared to be cocaine in exchange for fifty dollars. The substance was later laboratory analyzed and found to be cocaine. After entering the premises on or about September 14, 1987, the investigators were immediately approached by Lourdes who solicited the officers for an alcoholic beverage. They were later solicited in the same fashion by Genny. Later on, Santana met with Roberto and Rosa and asked if he could buy some cocaine. Santana handed Roberto sixty dollars and returned to his seat at the bar. Shortly thereafter, Roberto approached the investigators at the bar and handed Santana two small packages containing what appeared to be cocaine. The transaction took place in plain view at the bar and in the presence of Rosa and Genny. The substance purchased was laboratory analyzed and found to be cocaine. On or about September 17, 1987, the investigators returned to the lounge and met with Eliza concerning a purchase of cocaine. Eliza approached a patron who was seated at the other end of the bar and briefly conversed with him. Eliza returned to the investigators and told them that she could obtain cocaine for sixty dollars per gram, and that the cocaine would be delivered to the bar in approximately thirty minutes. Some thirty minutes later, Roberto entered the lounge and approached the investigators and asked if they desired to buy the drug. Santana told him he was interested in such a purchase and handed Roberto sixty dollars in exchange for two small packets containing what appeared to be cocaine. The packets were delivered on top of the bar counter in plain view and in the presence of Eliza and Lourdes. The substance purchased was laboratory analyzed and found to be cocaine. While at the lounge on September 17, Genny solicited two drinks from Santana. The two investigators also had extensive conversations with Eliza regarding the purchase of cocaine. On or about September 21, 1987, Santana and Garcia met with the manager, Carlos, concerning the purchase of cocaine from Roberto. During the conversation, Carlos was told several times that the investigators had purchased cocaine from Roberto inside the licensed premises. Carlos merely responded that "Roberto is a good guy, but he is not here." At no time did Carlos express disapproval of the cocaine transactions occurring within the licensed premises. On the same visit, barmaid Genny solicited two drinks from the investigators. The investigators also had conversations with Genny regarding the availability of cocaine on the licensed premises. However, they were informed by her that Roberto had not yet arrived. On or about September 22, 1987, Santana and Garcia visited the lounge and were approached by Eliza who asked whether they wished to purchase some cocaine. Eliza also informed them that Roberto had instructed her to call him on his beeper if any of his "regular customers" needed to purchase cocaine. She added that if Roberto could not come to the bar, she could sell them drugs obtained from her source who was present at the bar. After Santana and Garcia told her that they were interested in purchasing cocaine,, Eliza took a quarter from the business cash register and placed a telephone call on the lounge telephone. Eliza then returned and informed them that Roberto was on his way to the bar. A few minutes later, Roberto entered the lounge, approached the investigators, and handed Garcia two small packages containing what appeared to be cocaine. For this, Garcia gave Roberto fifty dollars. The transaction took place in plain view at the bar and in the presence of Eliza and Carlos. The substance purchased was sent to the laboratory where an analysis confirmed the substance to be cocaine. It is also noted that on this same visit, Genny solicited a drink from the investigators. On or about September 24, 1987, Santana and Garcia returned to the bar and were approached by Eliza who asked if they wished to purchase cocaine. She again informed them that Roberto had instructed her to call him on his beeper should the investigators wish to make a purchase. After Santana and Garcia placed an order for cocaine, Eliza went to the public telephone inside the licensed premises, and made a telephone call. After she returned she advised them that Roberto would be arriving soon. Approximately twenty minutes later, Roberto arrived at the licensed premises and told them that he had the cocaine that they had ordered. Roberto then gave Santana one gram of a substance that appeared to be cocaine in exchange for sixty dollars. He also handed Garcia one-half gram of a substance appearing to be cocaine in exchange for thirty dollars. The two transactions took place in plain view in the bar and in the presence of Eliza and Carlos. The substances purchased were laboratory analyzed and found to be cocaine. During this same visit, Genny solicited a drink from the investigators. On or about September 28, 1987, the two investigators returned to the lounge and were approached by Eliza and Genny who asked if they were interested in purchasing some cocaine. Eliza told them that Roberto was not in the bar but that she could call him on his beeper. Garcia requested that Eliza telephone Roberto and order a gram of cocaine. Eliza left for a few moments and was observed making a telephone call inside the licensed premises. A few minutes later, Roberto entered the lounge and handed Garcia two small packets containing what appeared to be cocaine. For this, Garcia gave Roberto fifty dollars. The transaction took place in plain view at the bar and in the presence of Eliza and Genny. The purchased substance was laboratory analyzed and found to be cocaine. On the same visit, Santana asked Roberto if he could purchase a gram of cocaine. Roberto said yes and told him the cocaine was stored in his car in the parking lot. The two then went to the car, where Roberto removed a package containing what appeared to be a half gram of cocaine, and gave it to Santana in exchange for twenty-five dollars. The substance was sent to the laboratory for analysis and was found to be cocaine. On October 1, 1987, Santana and Garcia again visited the lounge and were approached by Eliza who asked them if they wished to purchase cocaine. She also advised them that Roberto had not been in the lounge that day. Even so, she told them she could obtain the drug from another source. Garcia and Santana then placed orders for one and one-half grams of cocaine, respectively. After leaving for a few moments, Eliza returned and handed Santana and Garcia a brown paper napkin containing what appeared to be a gram and a half of cocaine. She was then paid seventy-five dollars by the investigators. The substance purchased was laboratory analyzed and found to be cocaine. On October 6, 1987, Santana and Garcia returned to the lounge and were asked by Eliza if they were interested in purchasing cocaine. Although she noted that Roberto had not been in the lounge that day, she told them she could obtain the drug from another source. Thereafter, Garcia and Santana each ordered one-half gram of cocaine from Eliza. After leaving the premises for a few minutes, Eliza returned and gave each investigator what appeared to be one- half gram of cocaine in exchange for fifty dollars. A laboratory analysis of the substance confirmed it was cocaine. When the above events occurred, there were no signs posted in the lounge warning patrons not to use drugs or to bring them on the premises. Further, the two investigators were never told by the manager or other employees to not use drugs, nor did they ever see a patron asked to leave because of having drugs in his possession. Max was seen in the lounge almost every day when the investigators were conducting their operation. However, there is no evidence that he personally saw a drug transaction take place, or that he was aware of any illicit activity. This is also the first occasion on which the licensed premises has been investigated. Mitigation At hearing Max and Olga appeared remorseful about this episode. They denied having knowledge of any drug transactions, and stated that around six months ago they had requested two Miami police officers to lend assistance in ridding their lounge of undesirable elements. They also told the police that "rocks" were being smoked in an adjacent parking lot. After the suspension of their license, the barmaids were fired. It is not clear whether Carlos was fired, but he only worked at the lounge for one or two months. A former manager who worked the first five months of 1987 testified he saw no drugs during his tenure, and that he was advised by Max to call the police if there were any problems. Because of his gunshot wounds, Max concedes it was necessary to hire other persons, perhaps too young, to oversee the lounge. He blames the incidents on those employees. If the license is reinstated, Max intends to shorten business hours and to have either himself or Olga on the premises at all times to ensure that no illicit activities occur. They also desire to sell the establishment, since they have invested their life savings in the business, and it represents their sole support.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of all charges in the Notice to Show Cause and that his License No. 230495, Series 2-COP, be REVOKED. DONE AND ORDERED this 2nd day of November, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4483 Petitioner: 1. Covered in finding of fact 1. 2. Covered in finding of fact 5. 3. Covered in finding of fact 6. 4. Covered in finding of fact 7. 5. Covered in finding of fact 8. 6. Covered in finding of fact 9. 7. Covered in finding of fact 10. 8. Covered in finding of fact 11. 9. Covered in finding of fact 11. 10. Covered in finding of fact 12. 11. Covered in finding of fact 13. 12. Covered in finding of fact 14. 13. Covered in finding of fact 15. 14. Covered in finding of fact 16. 15. Covered in finding of fact 17. 16. Covered in finding of fact 18. 17. Covered in finding of fact 19. 18. Covered in finding of fact 20. 19. Covered in finding of fact 3. 20. Covered in findings of fact 4 and 21. Respondent: Covered in findings of fact 1 and 3. Covered in findings of fact 1 and 3. Covered in finding of fact 21. Covered in finding of fact 21. 5.(a) Covered in finding of fact 2. Covered in finding of fact 3 to the extent the investigation was prompted by the City of Miami. The remainder is not supported by the evidence. Covered in finding of fact 22. Covered in finding of fact 21. Covered in finding of fact 22. Rejected since the evidence shows Lourdes and Rosa worked "many months" and "3-4 months," respectively. Covered in finding of fact 22. Covered in finding of fact 23. 6. Covered in finding of fact 23. COPIES FURNISHED: Thomas A. Klein, Esquire 725 South Bronough Street Tallahassee, Florida 32399-1020 Jose M. Herrera, Esquire Post Office Box 345118 Coral Gables, Florida 33114 Daniel Bosanko, Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Van B. Poole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire General Counsel The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact At all times pertinent to the issues herein, Respondent held Florida Alcoholic Beverage License 2-COP No. 54-00184 at Stew's Bar located at Third Avenue, Maloney Subdivision, Stock Island, Monroe County, Florida. The parties stipulated that Robert Stanley Gardner, Respondent's husband, has a financial interest in the leased premises. Based on Respondent's testimony, it is clear that she did not understand the nature of her stipulation regarding Robert Stanley Gardner's interest in the licensed premises, and he in fact has no interest therein. Stew's Bar has had a reputation with the Monroe County Sheriff's Department as a trouble spot for a considerable period of time prior to the events which took place here. However, upon questioning, Major Somberg, who had a computer printout of all calls received by his office relating to this establishment, was unable to cite even one previous call relating to narcotics. Nonetheless, based on the records of law enforcement agencies in the area, an undercover operation was instituted against Respondent's establishment in late April and early May 1984. On April 25, 1984, at approximately 3:50 p.m., Gale Sampson, an investigator with the Miami office of the Division of Alcoholic Beverages and Tobacco, entered Respondent's bar in an undercover capacity. She spent a period of time observing patrons and employees and noticed a Latin male who had a towel rolled up under his arm. She observed this individual take a packet from the towel, wave it in the air, and say "Haircut." The bartender at the time, Geraldine Hook, laughed, as did several patrons, but made no effort to stop this individual. This packet, a plastic bag containing a white powdery substance, was consistent with the way cocaine is packaged. This package was not, however, confiscated, nor were the contents identified. The following day, at 5:45 p.m., Sampson again went into the bar. She saw Hook again working behind the bar and asked Hook if she knew where she, Sampson, could get some cocaine. Hook turned and asked a female by the name of Alvarez, who said "Yes." Alvarez and Sampson agreed upon a price of $45 for a half gram, and Sampson gave Alvarez $50. Somewhat later, Alvarez returned to the bar and gave Sampson a half gram package and $5 in change. The contents of this package were subsequently tested in the laboratory of the Monroe County Sheriff's Office and were determined to be cocaine. Hook categorically denies arranging this sale. She admits to knowing Alvarez, but denies knowing even if there was any deal between Alvarez and Sampson. She also contends that when Sampson approached her to buy cocaine, she refused to get Sampson any and told Sampson that if she wanted any, she would have to get it herself. This last admission serves to defeat the credibility of Hook's denial. Somewhat prior to this transaction between Sampson and Alvarez, Beverage Investigator Clark A. Raby, assigned to the Live Oak, Florida, office, but in Key West on the same undercover operation, entered Respondent's bar at 4:50 p.m. as a backup for Sampson. He sat at the bar and ordered a beer from Hook. During the course of the evening, he had a conversation with the bartender and various patrons. He saw one Latin and two white males light and pass around what appeared to him to be a marijuana cigarette right at the door. He later went into the men's room and found a Latin male and a white female in the men's room rolling a cigarette. When he excused himself, she said it was all right--she was in there all the time. Sampson went back into the bar at 11:35 a.m. on April 27 and went right to the bar. She was approached there by a Latin male subsequently identified as Vernesto Seguseo, who asked her to sit in a booth with him. She did, and during the conversation asked him if he was an employee of the establishment. He replied that he was a bouncer, but not on duty. She asked him if he could tell her where she could buy cocaine. He said he had it right there, and she asked him how much one-half gram would cost. He replied "$40," whereupon she paid him as requested. In response, he took a small plastic packet out of his pocket and gave it to her. The contents of this packet were subsequently chemically analyzed by the Monroe County Sheriff's Office and determined to be cocaine. Though this individual never specifically stated he was an employee of this establishment, and evidence indicates from Respondent's witnesses that he was employed as a bouncer at another bar in the area, he was nonetheless seen in this establishment previously in areas reserved for employees of the bar. The testimony of Ms. Otona, the bar manager, and at least one barmaid indicates that this individual was not employed by Respondent's establishment until May 15, 1984, and, at the time of this sale, was not a bar employee. Raby also entered the bar at 4:50 p.m. on April 27, 1984. He went to the bar, where he ordered a beer from Hook. Shortly afterward, a black male offered to sell him a "Columbian joint" for $1.50. Raby paid him $2 and got the cigarette. Hook was there all the time and did not try to stop the transaction. However, there is some doubt as to whether she saw it. Raby testified that when the transfer of the cigarette was made to him, the cigarette was passed at the level of, or even below the level of, the bar, and it is very possible that Hook did not see the transaction occur. Hook indicates that at that time she was wearing dark glasses to cover the effects of a beating she had received from her boyfriend and did not see anything like what Raby described. Consequently, it is most likely that she did not. This cigarette was subsequently analyzed by the laboratory of the Monroe County Sheriff's Office and determined to be marijuana. This same black male individual, subsequently identified by the initials "J. J.," told Raby at the time that there was good cocaine available for $40 from "Latin brothers." On that same afternoon, Raby overheard Geraldine Hook agree to smoke and saw her smoke what appeared to be and smelled like marijuana right outside the back door of the establishment. There is no evidence, however, whether or not the substance was in fact marijuana. On April 28, 1984, Raby went into the Respondent's bar at approximately 5:30 in the afternoon and ordered a beer from the bartender, Joyce. J. J. came up and asked how he liked the cigarette he had purchased the day before, then asked if he wanted to buy some cocaine for $40 a half gram. Raby indicated that he did, whereupon J. J. walked off for awhile and came back. When J. J. came back to the bar, Raby put two $20 bills out which J. J. took. He again went away and came back a moment later with a packet which he passed to Raby beside the bar. He did nothing to hide it, and Joyce was there and did nothing to stop it. Raby is not sure if Joyce saw this or not, however, as he was not looking at her at the time. The substance was subsequently identified by the laboratory as cocaine. Sampson was also at the bar early in the morning of April 28, sitting with Vernesto Seguseo. The barmaid, Joyce, said she was taking $15 from the register and someone would replace it later. Seguseo agreed. Beverage Investigator Beverly Jenkins, who had received word from a confidential informant that an employee of the bar, a maintenance man described as a short black male with a beer belly and no teeth, was selling cocaine. When she first went into the bar on May 14, she saw this man there behind the bar filling the orders and taking orders from Geraldine Hook, the barmaid. When Jenkins talked with him, he admitted he worked there all the time, but did not want to engage in any long discussions at the time. He asked Jenkins to come back without her partner. On May 15, at approximately 5:55 p.m., she went back alone. This individual previously mentioned, who was subsequently identified as "Peter," immediately approached her and offered to introduce her around and "do her right." Jenkins asked him for cocaine. Peter went to another employee, came back, and said he could not provide it. Later, however, he offered to use cocaine with Jenkins if she would go with him. She refused and said she was going to leave, at which point he asked her to wait for him to finish work. Jenkins agreed to this and later left the bar and went out to her car. Shortly thereafter, Peter came out and got in Jenkins' car, at which point he offered to sell her a half gram of cocaine for $40. He offered to reduce the price if she would buy more than one packet. Jenkins agreed to buy three one-half gram packets for $35 each. She paid Peter $105 and received from him a substance which was subsequently identified as cocaine after being analyzed by the Monroe County Sheriff's Office laboratory. At 6:20 p.m. on the following day, May 16, when Jenkins went back in the bar, Peter was not there, but Vernesto, a former employee, was. Within a few minutes, Peter came in and approached Jenkins, asking her if she wanted more cocaine. When she said she did, he asked her to come outside. She resisted at this time because she was playing pool. When she finished the game, Jenkins went over to Peter, who took her outside and sold her a half-gram of a white powdery substance for $30 on the condition that she always buy from him and not from someone else. The substance Jenkins purchased on this evening was subsequently analyzed and determined to be cocaine. While Jenkins was in the bar this evening, she noticed there was a lot of traffic going to and from the rest rooms. She saw Peter go into the rest room with a patron, and she noticed that as he entered the rest room he was taking from his pocket a plastic bag similar to those which he had sold her previously. Jenkins did not see this transaction go down, however, but later saw the patron leave the rest room. The following day, Jenkins noticed that Gerry (Geraldine Hook) was back behind the bar and looked tired. Jenkins noticed that a female patron followed Gerry and her boyfriend into the back, where she saw Gerry breathe in through her nose a white powder. Jenkins asked to join the party at the time, but was refused. The female patron was identified as Donna, a clinic employee, who said at the time they were all a friendly group. This same patron, Donna, went into the restroom later with a Latin male and shortly after came out, rubbing her nose in a fashion consistent with cocaine use. Geraldine Hook, on the other hand, denies under oath that she was ingesting cocaine. Hook contends that she was explaining to her boyfriend why she could not get off work early and that the other lady was translating her comments to her boyfriend, who does not speak English. Hook contends that she does not ever snort or ingest cocaine because she is allergic to all drugs that are in the cocaine family and in support of that statement submitted a medical record from the Florida Keys Memorial Hospital emergency room showing that on April 23, 1984, when who was treated in the hospital because of being beaten by her boyfriend, she listed as allergies novacaine and tetracycline, tetramycin, morphine, and drugs of a similar nature. Hook also contends that she has asthma and could not use cocaine without it closing off her breathing passages. Emergency room records reflect that she has been previously diagnosed as an asthma sufferer. Later on May 17, Jenkins went back into the bar and went to the ladies' room with Peter. Peter offered to sell her two bags of cocaine for $60. After they entered the rest room, Peter closed the door halfway prior to making the transaction; however, the substance which he passed to Jenkins on that occasion and for which he charged $60 was subsequently identified as cocaine. Later that evening, Jenkins again went into the bar and saw Peter working. They played pool for a while, and she asked him for more cocaine. They went to the ladies' room again, where she paid him $60 for one gram of a substance which was subsequently identified as cocaine. During this entire transaction, the door was not closed. That same evening, Jenkins also saw Peter go into the men's room with three Latin males who, shortly after entering with him, came out rubbing and wiping their noses. This practice of patrons going into the restrooms and coming out rubbing their noses was also observed by Beverage Agent Jose Iturralde, who entered the bar undercover on both the 14th and the 15th of May, but who was unable to make a buy from Peter or anyone else because, he believes, he and the other agents had already been identified as agents. A raid in conjunction with the Monroe County Sheriff's Office and other law enforcement agencies was conducted on the premises on May 18, 1984, pursuant to a search warrant properly issued. Arrested at that time were Seguseo, Geraldine Hook, and several other Latin named patrons. Pursuant to the search carried out, the following items were found: one and one-half grams of cocaine behind the jukebox; 26 clear baggies, each containing a half-grain of cocaine, behind the bar counter on the floor; a partially smoked marijuana cigarette on top of the cash register; 14 baggies, each containing cocaine, on the bar counter; a partially smoked cigarette below and behind the bar on the southeast corner of the bar on the floor; 22 baggies of cocaine on the floor behind the bar near the entrance (these 22 baggies were contained in a white envelope) 9 syringes in a small storage room off the main bar; and a Marlborough cigarette pack containing a clear plastic bag of cocaine on one of the booth seats. Geraldine Hook does not recall seeing any patron waving a plastic bag on April 25, as testified to by Agent Sampson; however, she contends that, because of the fact that the police frequently come into the bar looking for narcotics, it is a habit of some of the patrons, as a joke, to wave around clear plastic bags which do not contain cocaine. These instances generally result in the type of laughter described by Sampson. When Hook was hired by the manager, Ms. Otona, she was told, and she recalls that other girls who had been hired there are told, that they, as employees, cannot have or use drugs on the premises or allow anyone in who uses drugs; that if they see anyone they think is using drugs, they are to put that person out. Any violation of these rules results in discharge of the employee. Hook admits having seen mixed couples going into the rest rooms from time to time, but considers this to be acceptable behavior, since there are no locks on the doors. The rules for employees, which are made known to the employee when hired, were confirmed by another barmaid, Brenda L. Gillespie. She added to the no-drug policy such things as no drinking to excess and no kissing during work, and she herself recalled having barred numerous people and having seen others barred over the past few months because of the new management (that of Mrs. Gardner, Respondent, and Ms. Otona, manager) and their attempts to do away with the previously bad reputation the bar had for drugs. Because of this, the waitresses have taken substantial abuse. Ms. Gillespie confirmed Ms. Hook's comments regarding the joke made of the waving of plastic bags, contending that the patrons are trying to test the barmaids to see how far they can go. Gillespie also contends that she is the one who pried the locks off the restrooms to prevent patrons from locking themselves in the rooms to use drugs and has many times told patrons to keep the drugs out, going so far as to call the police. Notwithstanding the testimony of all of the beverage agents that they had never seen the Respondent or the manager on the premises, Gillespie opined that either one or both are there all the time or are immediately on call, since they live in the immediate vicinity of the bar. Further, she contends that the agents were there on irregular hours or were so busy pretending to be drunk that it was impossible for them to see anyone. She recognized the undercover agents as agents, but she did not let on because she wanted their help. Louise Otona, currently the manager of Stew's Bar for Katherine Gardner, the owner, indicated that she and Respondent realized about one and a half or two months ago that there was a problem at the bar because of Respondent's husband, Stanley Gardner. Mr. Gardner is a cocaine addict, but has no interest in the premises or in the license. Because of his problem, however, Ms. Otona keeps all the money from the sales, and none is left at the bar. Respondent and Ms. Otona have barred anyone they knew who had any connection with Mr. Gardner and his drug habit. Ms. Otona has also fired anyone she knows who has anything to do with drugs and has taken over from the barmaids throwing people out. Ms. Otona admits that drugs may have been sold in the bar, but not with her knowledge or with the knowledge of her employees, because both she and Respondent have tried to do their utmost to keep drugs out. The waitresses in Stew's Bar are hardworking girls who would not knowingly jeopardize their livelihood by selling or permitting drugs to be sold in the bar. Ms. Otona and Respondent have worked hard to make Stew's Bar clean again and have made progress. Ms. Otona has received many compliments from the police on these efforts. With regard to Peter, the Latin male who sold to Jenkins on several occasions, Ms. Otona contends that Peter was fired by her personally on May 15, 1984, and could not then have been an employee of the bar at the time the sales were made. However, many of the barmaids' boyfriends help behind the bar, as do some patrons. Consequently, it may appear that individuals are employees who are working behind the bar when, in fact, they are not. Respondent testified similarly to Ms. Otona. Respondent does not use drugs herself, nor does she drink. Her husband, Stanley, is a drug addict, and she has started work to have him committed because of his addiction. He has nothing to do with the bar, however, and he is not the landlord. As far as J. J.'s coming into the bar is concerned, J. J. was barred from this establishment prior to the incidents in question, but keeps coming back. Respondent has called the police to have him thrown out, but nothing seems to help.
Findings Of Fact Petitioner is the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is Lillian Marie Reynolds, d/b/a Diamond Lil's, who currently operates under beverage license number 54-00573, Series 2-COP, at U.S. Highway #1, Lot #5, Big Coppitt Key, Monroe County, Florida. On August 7, 1986, the Monroe County Sheriff's Department and Petitioner began an undercover narcotics investigation entitled "Operation Sabre". As part of that investigation, two of Petitioner's beverage agents conducted surveillance of Respondent's licensed premises. On August 15, 1986, Petitioner's investigators, Deloach and Warner, entered this licensed premises. They met a patron known as "Ken" and discussed the purchase of marijuana. Subsequently, Ken sold Investigator Deloach approximately 3.4 grams of marijuana, in exchange for $10. This transaction occurred in plain view and took place in an open and notorious manner inside the licensed premises. On that same day Investigator Deloach was invited into the ladies' bathroom by two other patrons to use cocaine. He observed the patrons "snort" cocaine in the licensed premises. On August 16, 1986, Investigators Deloach and Warner reentered the licensed premises. Investigator Deloach was approached by the patron Ken regarding the sale of marijuana. During the conversation, Ken displayed a marijuana cigarette in plain view. Later in the evening, the investigators were approached by Steve Anderson, a member of the band that played at Diamond Lil's. Anderson discussed future sales of marijuana to the investigators. Anderson then sat on the floor just inside the front door of Diamond Lil's, rolled a marijuana cigarette, lit it, smoked it, and passed it to Investigator Deloach who simulated smoking it. On August 18, 1986, Investigators Deloach and Warner returned to the licensed premises. On this occasion, Respondent's son Kevin Blackburn was acting as the bartender/manager. The investigators were approached by Steve Anderson, who inquired whether they would be interested in purchasing some marijuana or cocaine. In response thereto, Investigator Deloach handed Anderson $10 for the purchase of some marijuana. However, Anderson later returned Investigator Deloach's money and stated that his supplier was not at home. On that same day the investigators approached Kevin Blackburn to inquire as to whether he could get them cocaine or marijuana. In response thereto, Blackburn stated that he had been on a "three day buzz" and that there were no drugs available at this time. The term "three day buzz" is a slang term which is generally understood to mean a narcotics-induced euphoria. Investigator Deloach also asked Blackburn to advise him when drugs became available. On August 19, 20 and 21, 1986, Investigators Deloach and Warner returned to the licensed premises. No actual drug purchases were made on these occasions; however, the investigators had loud conversations with Steve Anderson relative to the purchase of cocaine and marijuana. On August 22, 1986, Investigators Deloach and Warner returned to the licensed premises. On this occasion, the licensee and her son were sitting at the bar, facing the investigators, in the vicinity of a patron known as "Jackie Francesia". While at the bar, Investigator Deloach asked Jackie Francesia if he could purchase some cocaine. In response, Jackie Francesia sold Investigator Deloach one-half (1/2) gram of cocaine for $35. This transaction occurred in plain view and took place in an open and notorious manner, some fifteen feet from the licensee and her son. On August 25, 1986, Investigators Deloach and Warner returned to the licensed premises. Investigator Warner met with band member Steve Anderson to inquire as to the availability of marijuana. Anderson stated that he did not have any but that he would check in the bar for some. Anderson then left the immediate vicinity of Investigator Warner and approached Kevin Blackburn, who was tending bar. Investigator Warner observed Kevin Blackburn talking with Anderson and pointing out another patron, who was seated in the premises. Anderson went directly to that patron and spoke with the patron. Shortly thereafter, Anderson returned to Investigator Warner and told her that the cocaine was available but that his motorcycle was not running. Also on this date, the investigators observed three patrons standing just outside the main entrance of the licensed premises, smoking marijuana. On August 26, 1986, Investigators Deloach and Warner returned to the licensed premises. On this occasion, Kevin Blackburn was working behind the bar in a managerial capacity. The investigators met with Jackie Francesia to inquire as to the availability of cocaine. In response, Francesia handed Investigator Warner one-half gram of cocaine in exchange for $35. This transaction occurred in plain view and took place in an open and notorious manner in the licensed premises. After the cocaine delivery, Investigator Deloach approached Investigator Warner at the bar of the licensed premises and held out his wallet in full view of several patrons and Kevin Blackburn. Investigator Warner removed the cocaine from her pants pocket, held it up in plain view of Kevin Blackburn and placed it in Investigator Deloach's wallet. Subsequently, Investigator Deloach approached Kevin Blackburn and told him that he had just purchased cocaine from Jackie Francesia at the bar. In response thereto, Kevin Blackburn voiced his approval of the narcotics transaction occurring on the licensed premises. On August 28, 1986, Investigators Deloach and Warner returned to the licensed premises. Again, Kevin Blackburn was tending bar. The investigators approached Steve Anderson in the presence of Kevin Blackburn to inquire as to the availability of cocaine. Anderson stated that a patron known as "Miguel Vasguez" had some in his possession. Investigator Deloach then gave Anderson $40 for the purchase of cocaine. Anderson left the immediate vicinity of the investigators and returned shortly thereafter with one-half gram of cocaine. He then handed the cocaine to Investigator Deloach. This transaction occurred in plain view and took place in an open and notorious manner on the licensed premises. After taking delivery of the cocaine, Investigator Deloach again approached Kevin Blackburn and told him that he had just purchased cocaine in the licensed premises. Kevin Blackburn again acknowledged his approval of the narcotics transaction. In addition to being the licensee of record in the instant case, Lillian Marie Reynolds operates another premises which has an alcoholic beverage license and at which business she spent almost all of her time. Sometime prior to the commencement of "Operation Sabre", Reynolds turned over the management of Diamond Lil's to her son Kevin Blackburn. Although Reynolds was only present during one of the drug transactions described above, Blackburn was present during most of the others. Neither Reynolds nor Blackburn voiced any disapproval of the drug transactions taking place in Diamond Lil's. Furthermore, Reynolds admitted she had given no specific directions to her son regarding prohibiting drug use or transactions in the premises even though she had told the Sheriff prior to "Operation Sabre" that drug dealing might be taking place in Diamond Lil's.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained within the Notice to Show Cause and assessing a civil penalty against Respondent in the amount of $5,000. DONE and RECOMMENDED this 4th day of December, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2095 Petitioner's Proposed Findings of Fact numbered 1-14 and the first two sentences of finding numbered 15 have been adopted verbatim or in substance in this Recommended Order. The remainder of finding numbered 15, however, has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. Respondent's Proposed Findings of Fact numbered 1, 2, and 4-7 have been adopted in this Recommended Order either verbatim or in substance. The remainder of Respondent's Proposed Findings of Fact have been rejected as follows: 3 and 9 as being immaterial to the issues under consideration herein; 12 as being contrary to the evidence in this cause; and 8, 10, 11, and 13 as not being supported by the evidence herein. COPIES FURNISHED: Daniel Bosanko, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 John P. Rotolo, Esquire 627 Whitehead Street Key West, Florida 33040 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether the violations alleged in the Administrative Action, as amended, were committed? If so, should Respondent be held responsible for these violations? If so, what penalty should be imposed against Respondent?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, the holder of alcoholic beverage license number 60-00602, Series 4-COP issued by the Department. The licensed premises is Club Diamonds (Club), an adult entertainment establishment located in West Palm Beach (at 1000 North Congress Avenue) that features scantily clad female dancers.1 Patrons of the Club are served in two main areas: at the bar and at tables that are located between the bar and the stage area where the dancers perform to recorded music played by a DJ stationed in an elevated booth. On the north and west ends of the Club are partitioned areas with couches (Partitioned Areas). After receiving an anonymous complaint concerning the Club, the Department began an undercover operation at the establishment in which Special Agent John Murray and others participated. In his undercover capacity, Special Agent Murray visited the Club on three occasions during its normal business hours when there were other patrons, as well as Club employees (including dancers, at least one bartender/barmaid, a waitress, and a DJ) present. These visits were made on May 27, 1998, June 2, 1998, and June 6, 1998. On each visit, Special Agent Murray was approached by a dancer at the Club ("Faith" on May 27, "Riley" on June 2, and "Memphis" on June 6), who, after ascertaining that he was interested in a "private dance" for $20.00, escorted him to a couch in one of the Partitioned Areas on the north and west ends of the Club, sat him down on the couch, and spread his legs apart. The dancer then positioned herself between Special Agent Murray's legs and took off her top. Wearing only a thong-style bikini (G-string) bottom (which left her buttocks exposed), the dancer proceeded to perform for a fully clothed Special Agent Murray what is commonly referred to as a "lap dance." During the course of the "dance," the dancer, to the rhythm of the music, provocatively rubbed her bare breasts against Special Agent Murray's face and (while on his lap) rhythmically grinded her (covered) crotch area against his in a manner designed to simulate sexual intercourse and to sexually arouse Special Agent Murray. The "lap dance" lasted approximately the length of a song being played by the DJ over the Club's sound system. Following the conclusion of the "lap dance," Special Agent Murray paid the dancer $20.00. While at the Club, Special Agent Murray witnessed other patrons receive "lap dances" from the Club's dancers. Although the "lap dances" that Special Agent Murray and other patrons of the Club received were given in an area of the Club with "subdued" lighting (in contrast to the stage area, which was brightly lit), there was sufficient lighting for others in the Club at the time, including other employees, to observe these "lap dances," which were performed in an open and notorious manner in plain view. At no time did any employee of the Club make an effort to stop these "lap dances." Indeed, the DJ made comments to the patrons over the sound system encouraging them to purchase "private dances" from the Club's dancers. Although Respondent's officers and shareholders may not have been present on the premises during the May 27, 1998, June 2, 1998, and June 6, 1998, undercover operations, given the persistent and repeated instances of "lap dancing" engaged in by the dancers working at the Club, the inference is made that Respondent either fostered, condoned, or negligently overlooked these flagrant acts of indecency, which were patently offensive, lacked any serious artistic value and that the average person, applying contemporary community standards, would find, taken as a whole, appealed to prurient interests. On June 9, 1998, Special Agent Murray returned to the Club. On this occasion, however, he identified himself as a Special Agent for the Division. After doing so, he provided the Club's management with a written notice of the Department's intention to file administrative charges against Respondent based upon the conduct he had observed during his previous three visits to the Club. At no time prior to this June 9, 1998, visit had Special Agent Murray informed the Club's management that the Department had any concerns regarding activities taking place at the Club. Administrative charges were filed against Respondent on June 16, 1998. In September of 1998, Respondent hired a new general manager, Jorge Courts, to run the Club. Mr. Courts has taken measures reasonably calculated to prevent the reoccurrence of the inappropriate conduct that Special Agent Murray observed on his May 27, 1998, June 2, 1998, and June 6, 1998, visits to the Club.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Respondent liable for the violations alleged in the Administrative Action, as amended, and penalizing Respondent therefor by imposing an administrative fine in the amount of $1,000.00. DONE AND ORDERED this 16th day of March, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1999.
The Issue This case concerns the issue of whether the Respondent's beverage license should be suspended, revoked, or otherwise disciplined for maintaining a licensed premises where illegal drugs are sold and solicitations for prostitution take place. At the formal hearing, the Petitioner called as witnesses Carol Houston, Michael Collins, Chester L. Copeland, Vincent Rodriguez and John T. Allen. Petitioner offered and had admitted into evidence six exhibits. Respondent offered and had admitted into evidence one exhibit. Mr. Samuel Williams testified on behalf of Respondent.
Findings Of Fact The Respondent holds and at all times material to this action held beverage license No. 39-684, Series 4-COP. The licensed premises under that license is located at 2801 Nebraska Avenue, Tampa, Florida. Mr. Samuel Williams is president of the Respondent, Skylight Corporation, and owns 60 percent of the stock of that corporation. On the evening of July 27, 1983, Beverage Officer Carol Houston went to the licensed premises, The Blue Room Lounge, to conduct an undercover investigation. Upon entering the lounge Officer Houston took a seat at the bar and ordered a drink. After the shift change, Officer Houston talked to Brenda Brock, the bartender on duty. Officer Houston told Ms. Brock she liked to get high and asked if there was anyone in the bar from whom she could buy "reefer". Reefer is a street or slang term for marijuana or cannabis. Brenda Brock told Officer Houston that the person who usually sells reefer wasn't in the lounge at that time. Ms. Brock also related that she was high herself and had smoked a joint before coming on duty. When Officer Houston had entered the bar, Officer Michael Collins of the Tampa Police Department was already present in the lounge. Officer Collins, also working undercover, asked Brenda Brock where he would purchase some marijuana. When he asked Ms. Brock this question, she pointed out a black male named Chunky and said that he sold marijuana. Officer Collins then asked Brenda Brock to get Chunky for him and she did. The young male named Chunky approached Officer Collins and said he didn't have any marijuana but would have some later. At some time later in the evening, a young black male named Ace entered the lounge and Brenda Brock pointed to him and said to Officer Collins "that's him." Ace walked over to Officer Collins and asked if he was the guy looking for some marijuana. Officer Collins told him that he was but that he had promised to buy from someone else. Ace then asked Brenda Brock to verify to Officer Collins that he had been sent by Chunky and Brenda Brock said that he had in fact been sent by Chunky. As Ace had walked up to Officer Collins, he had three plastic bags of marijuana (cannabis) in his hands. He sold one of these bags to Officer Collins. Ace then sold a second bag of marijuana to a woman named Celeste who was sitting next to Officer Collins. Celeste was the bartender who had been relieved by Brenda Brock. Celeste purchased a $5 bag of marijuana from Ace and the exchange took place in the open and was observed by Officer Collins. After making the sales to Officer Collins and to Celeste, Ace approached Beverage Officer Houston who was still seated at the bar in a different area than Officer Collins and Celeste. He asked Officer Houston if she wanted to purchase some marijuana. She said yes and further stated that she wanted a $5 bag. He handed her a plastic bag containing marijuana and Officer Houston laid it on the bar in the open. Brenda Brock walked over and told her to put the bag up. Officer Houston then placed the bag of marijuana in her purse. Officer Houston then asked Brenda Brock if she had any papers she could use to roll a "joint". A joint is a slang term or street term referring to a marijuana cigarette. Brenda Brock said she did not have any papers. The purchase by Officer Houston of the marijuana took place in the open and was observed by Officer Collins from a different area of the bar. Later in the evening of July 27, 1983 two white females came into the lounge. Brenda Brock pointed to them and said those two ugly bitches called themselves prostitutes. At the time that the purchases of marijuana were made by Officer Collins, Celeste and Officer Houston, Brenda Brock was on duty as bartender and made no effort to stop the transactions. Mr. Samuel Williams had been in the lounge earlier in the evening, but was not present in the lounge when the marijuana transactions took place. On July 28, 1983, Officer Houston returned to the licensed premises approximately 7:00 p.m. When she arrived Samuel Williams was present in the lounge. Mr. Williams was talking with two men seated at the bar and was overheard by Officer Houston to say that before he would have those two prostitutes on the phone all night, he would have it taken out. Brenda Brock was the bartender on duty that evening and Officer Houston asked her if Ace was around. Ms. Brock replied that no one was around who had any reefer. Officer Houston left the lounge approximately 8:30 p.m. and returned at approximately 11:30 p.m. Upon entering, she ordered a drink from Brenda Brock and asked Ms. Brock if Ace had been back in because she wanted to get some reefer now. Ms. Brock replied that he was in the lounge and that she would get him for her. Shortly thereafter, Ace came over and asked Officer Houston what she wanted. She told him she wanted some reefer. Ace then walked away and shortly returned with a plastic bag containing marijuana. Officer Houston handed Ace a $20 bill and because Ace indicated he had no change, Officer Houston handed the $20 bill to Brenda Brock who gave her two $5 bills and one $10 bill as change. Officer Houston then handed a $5 bill to Ace as payment for the bag of marijuana. Also on the evening of July 28, 1983, while Officer Houston was seated at the bar, Brenda Brock told her a gentleman wanted to speak to her. The gentleman was Officer Collins, also working undercover. Officer Houston walked over and spoke to him briefly and the two of them returned to where Officer Houston had been seated in front of the cash register. There they discussed the price of a "date". A date is a common palance or street term for a sexual encounter for money or prostitution. A "date" is also referred to as a "trick". After agreeing upon a price, Officer Houston handed her purse and drink to Brenda Brock and asked Ms. Brock to hold them while she went outside to do a trick. Brenda accepted the purse and drink and Officer Houston left the bar with Officer Collins. Approximately 20 minutes later, Officer Houston returned and Brenda Brock gave her back her purse and her drink. At no time did Brenda Brock object to or inquire about Officer Houston's activities. On July 30, 1983, Beverage Officer Houston returned to The Blue Room Lounge at approximately 5:30 p.m. She entered the lounge and took a seat at the bar and ordered a drink from Brenda Brock who was on duty as bartender. While she was seated at the bar a young black female came up and asked her if she wanted to buy some reefer. Officer Houston had seen this young woman in the bar previously. She told her she did not want to buy any marijuana and after the young woman left she asked Brenda Brock who the young woman was. Brenda Brock said she was Ace's sister and in response to Officer Houston's questions, indicated that it was alright to buy reefer from her. Later that evening Ace came in and asked Officer Houston if she wanted to buy some marijuana. She told him that she had met his sister and Ace then called the young black female over and introduced her to Officer Houston as his sister. Officer Houston told Ace that she wanted to buy a $5 bag of marijuana. Ace then went over to his sister and brought back a clear plastic bag of marijuana. Officer Houston handed him a $20 bill and he indicated he did not have change. She then obtained change for the $20 bill from Brenda Brock and handed $5 of the change to Ace. Brenda Brock was standing right in front of her at the bar when she handed Ace the $5. In the early morning hours of July 30, 1983, just after midnight, Beverage Officer Hamilton entered the The Blue Room Lounge. He came over and talked with Officer Houston about a "date". While they haggled over a price Brenda Brock was seated directly across the bar from Beverage Officer Houston. After agreeing upon a price for the date, Officer Houston handed her purse to Brenda Brock and asked her to hold it while she did this trick. Brenda Brock took the purse and agreed to hold it. Beverage Officer Houston then left the lounge with Officer Hamilton. A few minutes later Beverage Officer Houston returned to the bar and Brenda Brock gave her her purse and put the drink which she had been drinking back on the bar. On August 1, 1983, Officer Houston returned to the licensed premises at approximately 9:30 p.m. She took the same seat near the cash register where she had sat on the previous evenings. Ace was present in the lounge. Officer Houston asked Brenda Brock to ask Ace to bring her a dime bag of marijuana. (A dime bag is a $10 bag. Brenda Brock went over to Ace and Ace then approached Officer Houston and asked her how much she wanted. At that time Officer Houston asked him if he could sell her some cocaine. He said he didn't have any but would have some later. Officer Houston then purchased two bags of marijuana from Ace for which she paid him $10. She handed him a $20 bill and he gave her $10 in change and when this exchange took place, Brenda Brock was in the area nearby on the other side of the bar. Officer Collins also went to the licensed premises on August 1, 1983 at approximately 10:55 p.m. After entering the lounge he told the barmaid, Brenda Brock, that he wanted to buy some good marijuana. She signaled to Ace and Ace came over to her. She whispered to Ace. Ace had walked up with a bag of marijuana already in his hand and after speaking with Brenda Brock he walked over and sold the bag of marijuana to Officer Collins for $5. Brenda Brock never objected to discussions regarding drugs or refused to get involved. There were no signs in the bar saying "No Drugs, No Loitering, No Prostitution", or signs with rules of management. On the evening of August 1, 1983, Officer Chester L. Copeland of the Tampa Police Department was also in the licensed premises in an undercover capacity. While standing at the bar Officer Copeland talked with Brenda Brock and asked her if Carol Houston was "dating". Brenda Brock said she didn't know. Ms. Brock then walked over and whispered something to Carol Houston and then returned to where Officer Copeland was standing and informed him that Carol was "dating". Officer Copeland then went over to Officer Houston and conversed with her about the price of a date. Brenda Brock was standing nearby during this conversation and made no objection to the discussion. After agreeing on a price Officer Houston handed her purse to Brenda Brock and left the lounge with Officer Copeland. Officer Collins also present in the lounge, observed Officer Houston and Officer Copeland leave the lounge together. Prior to this occasion Officer Collins had asked Brenda Brock if Officer Houston dated. Ms. Brock had indicated she didn't know and he had told her to go ask. She did go ask Officer Houston and came back and informed Officer Collins that she did date. Officer Collins then asked Ms. Brock the price of a date and she said she didn't know. Officer Collins asked her to go ask. Ms. Brock walked over and spoke with Officer Houston and came back and said the price was $50. On this particular evening of August 1, 1983, after he observed Officer Houston and Officer Copeland leave the bar, Officer Collins asked Brenda Brock if Officer Houston was coming back. Ms. Brock said she didn't know. Officer Collins then asked her if Carol (Officer Houston) was out on a date and Brenda Brock replied that she thought so. On each of the occasions that Officer Collins discussed prostitution with Brenda Brock he instituted the conversation, but Ms. Brock freely discussed it and made no objection to the discussions. Shortly after she had left with Officer Copeland, Carol Houston returned to the licensed premises. Officer Collins then approached her and talked about a "date". After a short discussion he and Officer Houston left the bar together. On August 3, 1983, Officer Houston again returned to the licensed premises at approximately 10:30 p.m. She took a seat at the bar directly in front of where Brenda Brock was working as bartender. Seated near her at the bar was a latin male who kept asking her to come over. After she had been there a short time, Brenda Brock came over to Officer Houston and said that the latin male wanted to know how much she charged for a date. Officer Houston did not respond and Brenda Brock shouted to the latin male $100. A short time later Brenda Brock came back over to Officer Houston and said that the latin male said he had some cocaine. Officer Houston then told the latin male in a loud voice that he better also have lots of money. That same evening Brenda Brock also told Officer Houston that another male, Officer Collins, wanted a date and had some cocaine. On the evening of August 3, 1983, Officer Copeland also entered the licensed premises. While seated at the bar, Officer Copeland met the young man named Ace. Ace came over and asked if he wanted to buy a $5 bag of reefer. He indicated that he did and gave Ace $5, and Ace handed him a plastic baggie of marijuana. On August 9, 1983, Officer Houston entered the licensed premises approximately 10:30 p.m. She took a seat at the bar, ordered a drink, and asked Brenda Brock, the bartender on duty, if Ace was around. Brenda Brock indicated that he was over at the Pac-Man machine but he had left the lounge. Later Ace came in and Brenda Brock said "there he is" to Officer Houston. Ace came over to Officer Houston and said he had some cocaine and asked if she still wanted to buy some. She asked now how much it would cost. Ace indicated he had "nickel" ($5) pieces. Ace stated that it was back at his room and he left and then returned with a small foil pack. Officer Houston gave Ace $5 and he handed her the small foil pack. The small foil pack contained cocaine, a controlled substance under Section 893.03, Florida Statutes. That same evening Officer Houston observed two black males rolling some type of cigarette. She observed a plastic bag containing material similar to marijuana. She observed Brenda Brock obtain some rolling papers from behind the bar and hand them to the two males. On August 10, 1983, Officer Houston entered the licensed premises approximately 10:00 p.m. Ace was not in the lounge when she arrived, but approximately 10:15 p.m. Ace entered the lounge and came over and asked if she wanted to buy some "coke". "Coke" is a slang or street term for cocaine. She said she would like to buy some and he said he would have it later. At approximately 11:30 p.m., Ace came over to Officer Houston and stated that he had coke. Officer Houston told him that she wanted two hits and she then bought two foil packs from Ace. Officer Houston gave Ace a $20 bill but he had no change. She then handed the $20 bill to Brenda Brock who gave her change. She paid $10 for the two foil packs which contained cocaine. That same evening a black male was seated at the bar smoking a marijuana cigarette. Brenda Brock who was the bartender on duty stated "Do I smell dope?" She then looked at the male smoking the marijuana cigarette, but made no effort to stop him. On August 11, 1983, Officer Houston was again on the licensed premises. While seated at the bar, Officer Houston observed a white female smoking what appeared to be a marijuana cigarette Brenda Brock came over to Officer Houston and said that the white female had just gotten some reefer and wanted to know if she wanted some. Officer Houston told her that she did not. Mr. Samuel Williams the president of the Respondent corporation was the manager and owner of the licensed premises. During the time of the charges in this case, Mr. Williams would open the bar in the mornings and remain at the bar all day until the shift change at approximately 7:00 or 7:30 p.m. He was not present in the bar when the various transactions took place and was generally not present in the bar in the evening. A Mr. Raifield had been hired by him to manage the bar at night. However, Mr. Raifield had been terminated shortly before the transactions which are the subject of this case. Brenda Brock had become a full-time bartender on July 26, 1983. Prior to that time she had worked part-time and Mr. Williams had no indication that she used drugs or allowed other people to use drugs or solicit for prostitution on the licensed premises. At no time was Mr. Williams aware that Brenda Brock was permitting drug transactions and solicitations for prostitution to take place in the licensed premises. There is a substantial prostitution problem in the Nebraska Avenue area where the licensed premises is located. Mr. Williams has been active in civic attempts to eliminate the prostitution from this area. Within a year of the charges which are the subject of this case, Mr. Williams' life was threatened by a pimp operating along Nebraska Avenue and the tires and convertible top of his car were slashed. One of the reasons that Mr. Williams was not in the lounge in the evening was because he had been advised by the police that it would be safer for him to not be in the lounge in the evenings. This occurred following the threat on his life. Mr. Williams had no policy of random visits or inspections to the lounge in the evenings. There have been no prior complaints or charges brought against the Respondent's license.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered finding the Respondent in violation of Section 561.29, Florida Statutes, and imposing a civil penalty of 1,000 and suspending Respondent's beverage license for a period of sixty (60) days. DONE and RECOMMENDED this 1st day of September, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 1st day of September, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Samuel Williams 3513 Rivergrove Drive Tampa, Florida Mr. Howard M. Rasmussen Director of the Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in the notice to show cause and that his license number 26-2026 be suspended for a period of fifteen days. DONE and ENTERED this 15th day of July, 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 15th day of July, 1983. COPIES FURNISHED: James N. Watson, Jr. Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Joseph S. Farley, Jr., Esquire 350 East Adams Street Jacksonville, Florida 32202 Howard M. Rasmussen, Director Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
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.
The Issue This is a license discipline case in which the Division of Alcoholic Beverages and Tobacco seeks to suspend, revoke, and otherwise take disciplinary action against the Respondent and its license on the basis of allegations that the Respondent has violated Section 561.29(1)(a), Florida Statutes, by permitting patrons to engage in illegal activities on the licensed premises and by allowing the licensed premises to be used for the illegal keeping, selling, or delivery of controlled substances. The Respondent contends that no disciplinary action should be taken because the Respondent has qualified as a "responsible vendor," and has taken reasonable steps to attempt to prevent the conduct complained of in the Notice To Show Cause.
Findings Of Fact At all times relevant and material to this proceeding, a corporation named 3673 Bird, Inc. (hereinafter referred to as "the Respondent corporation"), has been the holder of alcoholic beverage license number 23-01224, series 4-COP, for licensed premises knows as Uncle Charlie's, which premises are located at 3673 Bird Road, Miami, Dade County, Florida. The Respondent is owned by Robert Sloate, who is also the sole officer of the Respondent corporation. Mr. Sloate does not take an active part in the day-to-day management of the licensed premises. Mr. Sloate makes only rare or occasional visits to the licensed premises. During November of 1991 and during the first few days of December of 1991, Mr. Sloate was hardly ever on the licensed premises. Mr. Sloate did not have personal knowledge of the events described in Paragraphs 5, 6, and 7 of these Findings of Fact. The business of the licensed premises is managed by a group of four managers. The Respondent corporation has a total of twenty-six employees, including the four managers. The Respondent corporation has performed the actions necessary to qualify as a "responsible vendor" within the meaning of Section 561.705, Florida Statutes, as amended by Chapter 91-60, Laws of Florida. 1/ Those actions include training and instruction sessions for managers and employees, meetings of employees, and the posting of signs to discourage underage sales and illegal activity involving controlled substances. The licensed premises were also equipped with TV cameras that cover both doors, the front bar, and the back bar. However, the TV cameras do not make a tape recording of what they cover, and there is no evidence that the TV monitors are watched by employees of the Respondent corporation on any regular basis. During the course of an undercover investigation that began on or about November 13, 1991, and continued until the licensed premises were raided on December 6, 1991, the following transactions involving controlled substances took place within the licensed premises: On or about November 14, 1991, a patron known as Mark sold two baggies, each containing approximately one-half gram of cocaine, to a confidential informant who was cooperating with the undercover investigation. 2/ On or about November 14, 1991, a patron known as Gus sold cocaine to a confidential informant who was cooperating with the undercover investigation. On or about November 14, 1991, a patron known as Mark sold cocaine to Detective Bales. (d) On or about to Detective Rivera. November 15, 1991, a patron known as Sergio sold cocaine (e) On or about Agent Lopez. November 15, 1991, a patron known as Clint sold cocaine to (f) On or about to Detective Bales. November 15, 1991, a patron known as Sergio sold cocaine (g) On or about Detective Bales. November 15, 1991, a patron known as Mark sold cocaine to (h) On or about Detective Rivera. November 15, 1991, a patron known as Mike sold cocaine to (i) On or about to Agent Lopez. November 15, 1991, a patron known as Sergio sold cocaine (j) On or about November 15, 1991, a patron known as Mike sold cocaine to Detective Fernandez. On or about November 21, 1991, a patron known as Sergio sold cocaine to Detective Bales. On or about November 21, 1991, a patron known as Sergio sold cocaine to a confidential informant who was cooperating with the undercover investigation. On or about November 22, 1991, a patron known as Sergio sold cocaine to Agent Lopez. Or or about November 22, 1991, a patron known as Wesley sold cocaine to Detective Bales. On or about November 22, 1991, a patron known as David sold cocaine to a confidential informant who was cooperating with the undercover investigation. On or about November 22, 1991, a patron known as Clint sold cocaine to Agent Lopez. On or about December 4, 1991, a patron known as Clint sold cocaine to Agent Lopez. On or about December 4, 1991, a patron known as Charles Garcia sold cocaine to Detectives Villanueva and Feria. The vast majority of the drug transactions described in the preceding paragraph were conducted in an open and casual manner, with no effort by either party to conceal the transaction. Most of the drug transactions described above took place when the licensed premises were quite crowded and noisy, which would have made it difficult for some of the transactions to be noticed by employees of the Respondent corporation. However, many of the transactions took place near employees of the Respondent corporation, and from the open nature of the transactions, it should have been obvious to the employees of the Respondent corporation what was going on. The flagrant nature of the illegal drug transactions taking place in the licensed premises during the period of the undercover investigation is illustrated by the following: The patron Sergio, who made several sales of cocaine to the undercover police officers and to the confidential informant, was so flagrant about his illegal activities that he carried a tambourine with him and would shake the tambourine to advise all who were interested that he had cocaine available for sale. At least one of the managers was aware of Sergio's tambourine shaking, because he testified that it annoyed him. It was obvious to anyone who troubled to look that Sergio was dealing in something, because after he shook his tambourine there would be several people who would approach him, hand him money, and receive from him small plastic baggies containing white powder. Sergio's cocaine sale activity was so casual that on at least one occasion he took a twenty dollar bill and delivered a baggie containing cocaine without even being specifically asked for cocaine. The casual nature of Sergio's activity is also indicated by the fact that he was not concerned about being asked for cocaine in the presence of two other people, and he carried numerous baggies of cocaine in his pockets. The patron Charles Garcia attempted to promote the ingestion of cocaine inside the licensed premises after he delivered cocaine to Detectives Villanueve and Feria. The undercover police officers observed numerous transactions during which a patron would approach another patron, deliver money to the other patron, and then receive a small plastic baggie from the person who took the money. These observations included the observation of numerous such transactions involving Sergio (the tambourine man) and several involving the patron known as Mike. On one occasion during the investigation, Detective Rivera observed a patron exiting the restroom with white powder beneath his nose. When Detectives Villanueva and Fiera were purchasing cocaine from Charles Garcia on December 4, 1991, a patron named Ray asked Detective Fiera to join him in the restroom. In the restroom, Ray ingested a white powder that appeared to be cocaine in front of both Detective Fiera and the restroom attendant. All of the drug transactions described in Paragraphs 5, 6, and 7 of these Findings of Fact took place within the licensed premises during business hours, when employees and patrons were present on the licensed premises. None of the employees ever called the police or asked any of the parties to the drug transactions to leave the licensed premises. The Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, and the Metro-Dade Police Department executed a raid on December 6, 1991, at the licensed premises. After the raid was completed, thirty-four packets of unclaimed cocaine were found on the floor, as were several pills and several packets of marijuana. An unclaimed pen knife with cocaine on the tip was also found. On the night of the raid, one of the bartenders tossed a baggie of cocaine over the bar. That bartender was arrested for possession of cocaine. On the night of the raid, Sergio was found to be in possession of three baggies of cocaine, as well as other controlled substances. The investigative expenses incurred in the course of the undercover investigation of the Respondent corporation's premises totaled one thousand one hundred forty-eight dollars ($1,148.00). In brief summary, the vast majority of the drug transactions described in Paragraphs 5, 6, and 7 of these Findings of Fact, took place in plain view. The open exchanges of drugs and money, the casualness with which those selling drugs on the licensed premises went about their business, and the frequency of the drug transactions, all demonstrate a pattern of flagrant, persistent, repeated, and recurring violations. The nature and frequency of the subject drug transactions were such that they would have been noticed by a reasonably diligent licensee.
Recommendation On the basis of all of the foregoing, it is recommended that the Division of Alcoholic Beverages issue a final order in this case revoking the Respondent corporation's alcoholic beverage license number 23-01224, series 4-COP, for the premises located at 3763 Bird Road, Miami, Dade County, Florida, and imposing an administrative fine in the total amount of $18,000.00. RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of December 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of December 1991.
Findings Of Fact Respondent, Alton Beverages, Inc., trading as Mayflower Lounge, holds Division of Alcoholic Beverages and Tobacco License Number 23-2043, Series 4- COP. Respondent conducts its business pursuant to said license at 17IG Alton Road, Miami Beach, Dade County, Florida. At all times material hereto Sam Rosen was the sole corporate officer and shareholder of Alton Beverages, Inc. In addition, at all times material to this proceeding, Robert L. Pyle was the night manager for Respondent's licensed premises at the aforementioned address. During the time periods alleged in the Notice to Show Cause, that is, from February 21, 1981 through March 7, 1981, Dottie Turner, Laura Kimberly, Mona Castro, Sandra Timmsen and Deborah Sutcliff were dancers at the licensed premises, and were "agents" of Respondent. In the early morning hours of February 21, 1981, an undercover officer in Petitioner's employ was introduced by a confidential informant to Robert L. Pyle, the night manager on duty at Respondent's licensed premises. Shortly after that introduction, the undercover officer purchased a quantity of cocaine from Pyle for $50.00, the sale and delivery of which substance took place on the licensed premises, while Pyle and the officer were seated at a table in the lounge portion of the premises. During the evening hours of February 21, 1981, Petitioner's undercover officer returned to the licensed premises. While seated at a table with Dottie Turner, a topless dancer in the employ of Respondent, Turner mentioned to the undercover officer that she was going outside "to smoke a joint." Thereupon, the undercover officer asked if he could purchase a "joint" from her, and she advised that she would "roll one" for him for one dollar. Thereafter, Turner went outside the licensed premises, subsequently returned to the table, and gave one marijuana cigarette to the undercover officer in exchange for one dollar. Later on the evening of February 21, 1981, the undercover officer made a second purchase of cocaine for $50.00 from Pyle, Respondent's night manager. Again, the purchase ant exchange of this cocaine took place on the licensed promises while the officer and Pyle were seated at a table in the bar. While still in the licensed premises on February 21, 1981, the undercover officer asked for, and obtained, a second marijuana cigarette from dancer Dottie Turner at no cost. On February 23, 1981 the undercover officer again returned to the licensed premises where he spoke with Dottie Turner. On this occasion another purchase of a marijuana cigarette for one dollar from Dottie Turner was accomplished, with the negotiation for and delivery of the cigarette occurring on the licensed premises. After delivery of the marijuana cigarette, the undercover officer inquired of Turner concerning the purchase of a larger quantity of marijuana. The undercover officer was advised by Turner that if he would give her the money for an ounce of marijuana she could purchase it for him and bring it to the licensed premises for delivery. When the undercover officer refused to part with the money prior to delivery, Turner advised him that he would have to come to her apartment to make the purchase. Subsequently, on February 25, 1981, the undercover officer went to Turner's apartment, some distance from the licensed premises, and purchased one ounce of marijuana for $30.00. On February 25, 1981, the undercover officer returned to the licensed premises. On this date, he met with Robert L. Pyle, the night manager, and requested to purchase one quarter-ounce of cocaine. While the undercover officer and Pyle were seated in the Manager's office on the licensed premises, Pyle advised the undercover officer that he could arrange the purchase of that amount of cocaine for $500.00. Pyle further advised the undercover officer that he would have to go upstairs to get the cocaine and would return shortly. Thereupon both the undercover officer and Pyle left the Manager's office, and the undercover officer resumed a seat in the lounge portion of the licensed premises. Shortly thereafter, Pyle returned, and, while seated at a table with the undercover officer and Deborah Sutcliff, one of Respondent's topless dancers, exchanged with the undercover officer the one quarter-ounce of cocaine for $500.00 in currency. As previously indicated, the address of the licensed premises is 1716 Alton Road, Miami Beach. This address consists of the first floor of a two- story concrete block structure. The first floor is leased by Respondent from the building owner, Sam Berlin. The second floor of the structure was leased from the building owner by Robert L. Pyle, the night manager, and several of the dancers and other employees of Respondent for use as apartments. At all times material hereto, access to the apartments on the second floor could be had either by way of an exterior stairway in the rear of the building, or through a door in the interior of the licensed premises opening on an interior stairway. This interior door was used frequently by the dancers to access their apartments, and was used by Pyle on at least one of the occasions when the undercover officer purchased cocaine as hereinabove described. The sketch appearing on or attached to Respondent's license does not show the second floor of the two-story structure as being contained within the licensed premises and, indeed, does not show the interior door giving access to the second floor, although the record in this proceeding establishes that the door was present when Petitioner's agent made the sketch of the premises to attach to Respondent's license. There is no showing in this record that the interior door and stairway were ever used by anyone other than persons making their residence on the second floor. The upstairs portion of the building was never used for storage or for any other purpose connected with the operation of the licensed premises. Finally, there is no showing in this record that Respondent bad, or attempted to exercise, any dominion or control over the second floor of the building. On March 7, 1981, pursuant to a search warrant, law enforcement officers, including Petitioner's undercover officer, conducted a raid of the licensed premises. One of Respondent's dancers was found to be in possession of in excess of 10 grams of cocaine in her purse on the licensed premises. In addition, a quantity of marijuana was found near the bar and a yellow change purse containing a cocaine kit and spoon were found in the Manager's office. In the upstairs area where several of Respondent's employees lived, another of Respondent's dancers was found to be in possession of a controlled substance, Diazepam, and a bartender In Respondent's employ was found to be in possession of Diazepam as well as a small quantity of marijuana. Still another dancer was found to be in possession of a quantity of marijuana in her apartment, while Robert Pyle's bedroom in the upstairs area contained Diazepam and assorted narcotics paraphernalia including a cocaine user's kit, knives and scales. In addition, in the general living area of the upstairs, there was assorted narcotics paraphernalia including large heating elements; boxes and plastic jugs and bags containing different cocaine cutting agents such as procaine; an automatic plastic wrapping machine; a large-size scale; test tubes; and two bags containing cocaine. Respondent does not deny that the aforementioned activities occurred, but instead defends against the allegations or the Notice to Show Cause, as amended, by contending that the corporate licensee, through its sole officer and shareholder, Sam Hill Rosen, took every reasonable precaution to guard against such activity occurring on the premises. Respondent contends, Petitioner admits, and the record herein clearly establishes that Mr. Rosen was not "directly involved" nor did he have personal knowledge of the activities occurring on the licensed premises. Respondent asserts that in an attempt to prevent legal activity from occurring on the licensed premises, it posted signs in conspicuous places, such as the dancers' dressing room, and gave written instructions to employees announcing its policy of prohibiting drugs, other than prescription drugs, from being used or sold on the licensed premises. Violation of this employment policy, according to Respondent, resulted, on occasion, in immediate dismissal of employees. Additional Policies allegedly adopted by Respondent to guard against illegal activity included prohibiting dancers from leaving the licensed premises to go outside while they were working, and subjecting all employees to periodic "shakedown searches". There was also some indication in the record that Respondent reserved the right to subject its employees to polygraph tests. Finally, Respondent also asserts that, acting through its principal, Mr. Rosen, the premises was periodically checked while Mr. Pyle was on duty to assure that no violations of law were occurring. Accepting Respondent's representation that the aforementioned policies were established on the premises, the record in this proceeding clearly establishes that to the extent that these policies did exist they were more honored in the breach than in the observance. For example, of those employees of Respondent who were called to testify at the final hearing in this proceeding, none of them had been administered a polygraph examination, none had had their persons or belongings searched while working on the licensed premises, and they had observed Mr. Rosen on the premises during the evening hours at best "infrequently". Mr. Rosen's failure to adequately supervise the licensed premises is corroborated by the fact that on February 23, 1981, when Petitioner's undercover officer was on the licensed premises, Mr. Pyle, the night manager, was off duty, and Mr. Rosen, who managed the licensed premises during other portions of the day, was not present. In addition, on at least one occasion, one of Respondent's dancers observed Pyle on the licensed premises in possession of both cocaine and pep pills, the latter of which, according to Pyle, were used in case ". . . some of the girls came into work and weren't quite up to doing their performance." The record in this proceeding fails to establish that any agent, employee or patron of Respondent was ever observed using illegal drugs or narcotics inside the licensed premises. In addition, the record clearly establishes that Respondent has never previously been cited by and law enforcement agency, regulatory or governmental body for narcotics law violations of any nature. Both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer in this proceeding. To the extent that those findings of fact have not been incorporated in this Recommended Order, they have been rejected as either being irrelevant to the subject matter of this proceeding, or as not having been supported by the evidence.
