The Issue Whether Respondent's alcoholic beverage license should be revoked or otherwise disciplined on grounds that (1) on several occasions, cocaine was possessed, sold, or delivered on the licensed premises by Respondent's employees in violation of state law, and (2) by virtue of such Possession, sale, or delivery of cocaine by its employees, Respondent maintained a public nuisance on the licensed premises.
Findings Of Fact Respondent, Provende, Inc., a general partner in a limited partnership known as Alexandre, Ltd., is responsible for and operates a nightclub under the name of Club Alexandre (the "Club") at 1601 Biscayne Boulevard, Miami, Florida. In connection with its operation of Club Alexandre, Respondent holds beverage license No. 23-3953, Series No. 4-COP-SRX, which permits the sale and consumption of intoxicating beverages on the premises. (Stipulation of Parties, Testimony of Cachaldore.) Club Alexandre, located within the Omni International complex, is a large, multi-faceted club. Its premises consists of two levels totaling approximately 30,000 square feet. The first level includes a restaurant, bar area, three separate dance floors, bathroom facilities, and a stage for entertainment. Buffet lunches are served as early as 11:30 a.m., followed by a cocktail hour in late afternoon, dinner, and live entertainment which continues until 3:00 a.m. The second level is used primarily for private parties, weddings, and business meetings; it is enclosed in glass, and includes banquet rooms, bathroom facilities, storage rooms, and the Club's business offices. Ordinarily, the Club employs from 45 to 50 persons as busboys, bartenders, barmaids, waiters, maitre d's, cooks, dishwashers, office staff, promoters, and buyers. Most of the employees have been hired by Alex Cachaldora--general manager of the Club, stockholder, and president of Respondent. He either hires or approves the hiring of all Club employees and is the individual responsible for managing the Club on a daily basis. (Testimony of Cachaldora.) Club Alexandre is a semi-private club. Upon application, acceptance, and payment of a fee, persons may become members; public customers may also use the Club after screening at the entrance and payment of a cover charge. (Testimony of Cachaldora.) I. As to Count I On November 23, 1980, at approximately 12:10 a.m., D.C. Diaz--an off- duty officer of the Miami Police Department--paid a cover charge and entered the Club Alexandre. He sat at the bar counter, ordered a drink from a young barmaid dressed in a black uniform, and asked her if she could give him some "white magic", a street term referring to cocaine. She asked how much he wanted, he said "one gram"; she then informed him that the price would be $65. (Testimony of Diaz.) Diaz then gave the barmaid a $100 bill; she went to the cash register and returned with $35 in change which he gave to Diaz. She told him, "It will take between five and ten minutes." (Tr. 22-I-22.) Five to ten minutes later, a waiter--dressed in a black tuxedo-type shirt--approached from the restaurant area and gave the barmaid a folded napkin which she, in turn, gave to Diaz. He opened the napkin and found a small tinfoil packet inside containing a white powder which he suspected to be cocaine. (Testimony of Diaz.) Subsequent laboratory tests by the Metropolitan Dade County Public Safety Department confirmed that the white powder obtained by Diaz from the barmaid on November 23, 1980, was cocaine. II. As to Count 2 On January 23, 1981, at approximately 10:30 p.m., Beverage Officers Carmen Gonzalez and Joe Mato, together with Art Serig of the Miami Police Department, entered the Club Alexandre for the purpose of conducting an undercover narcotics investigation. They proceeded to the second floor area, sat at a table, and ordered drinks. (Testimony of Mato.) At approximately 12:25 am. (January 24, 1981), Officer Mato proceeded to the downstairs bar where a barmaid identified as Enid Epstein was tending bar. After ordering a drink, he asked her if she knew where he could obtain some "white magic"; she answered, "Yes, if he is still here it would be $65."(Tr. 22-I-53.) He agreed to the price and handed her $70. She took the money and proceeded to the kitchen area located in the rear of the premises. A few minutes later, he observed her running across the upstairs lounge area to the bar. After a brief delay, she proceeded toward the downstairs bathroom area. She then returned to Officer Mate, handed him a $5 bill folded into a small package, and explained, "This is the change that I owed you." (Tr. 22-I- 54.) He opened the folded $5 bill and found a small tinfoil packet containing a white powder which he suspected to be cocaine. (Testimony of Mato.) Subsequent Dade Public Safety Department laboratory tests confirmed that the white powder obtained by Officer Mato from Enid Epstein was cocaine. (P-2.) III. As to Count 3 On January 24, 1981, at approximately 9:20 p.m., undercover Beverage Officers Lou Clark end Lou Terminello entered the Club Alexandre for the purpose of continuing the Division's narcotic investigation. They seated themselves at the downstairs bar area end ordered drinks from a male bartender who introduced himself as "Bill", later identified as William Mendel. Officer Clark told "Bill" that they had picked up a couple of girls and asked if there was anything to help with the party. A conversation ensued about there being a lot of "snow" in Kansas--Clark using the term's ordinary meaning--and "Bill" answering, "That is not the kind of snow I was referring to." (Tr. 22-I-132.) In response to Clark's question about obtaining something that might help with their party, "Bill" indicated his contact wasn't there at that time, but that "they should be in later." (Tr. 22-I-133.) Officers Clark and Terminello then left the premises. (Testimony of Clark, Terminello.) About an hour later, the two beverage officers returned to the premises, and seated themselves at the downstairs bar. They ordered a drink from "Bill" and asked if his contact had arrived. He went over and talked to a young red-haired female barmaid--later identified as Enid Epstein-and returned to the officers; he then wrote "75" on a white bar napkin and placed it on the counter in front of them. Terminello said, "That is fine, we'll take two" (Tr. 22-I-136) and laid $80 on the table. Clark laid dawn a $100 bill. "Bill" took the $100, and $56 from Terminello's $80, leaving $24 in change. 4/ "Bill" then rang up a $6 sale an the register and placed the rest of the money in the right vest pocket of Enid Epstein. She then left the bar and proceeded into the kitchen area. A few minutes later she returned--via the staircase leading from the second floor--folded an unidentified object into a napkin, and handed it to Bill. He, in turn, handed the napkin to Terminello. After finding two small tinfoil packets in the napkin, the officers departed the premises. (Testimony of Terminello, Clark.) The two small packets contained a white powder. Subsequent Public Safety Department laboratory tests identified the white powder contained in one of the packets as cocaine. 5/ IV. As to Count 4 After his initial drug transaction with barmaid Enid Epstein during the early morning hours of January 24, 1981, (Paragraph 7 through 9, Count 2, above) Officer Mato returned to the Club Alexandre with Beverage Officer Emil Marrero. They arrived shortly before midnight on January 24, 1981, and seated themselves on opposite ends of the downstairs bar. After ordering drinks, Officer Mato called over barmaid Enid Epstein--who was tending bar--placed $70 on the bar and told her he would like to purchase some "white magic", another street name referring to cocaine. She took the money and proceeded to the kitchen area, then returned and handed Mato a folded $5 bill containing a small tinfoil packet. A few minutes later, the beverage officers departed the premises. (Testimony of Mato, Merrero.) The small tinfoil packet contained white powder which subsequent Public Safety Department laboratory tests identified as cocaine. (P-2.) V As to Count 5 At 11:00 p.m., on January 27, 1981, Beverage Officers Marrero and Delmonte entered the Club Alexandre and seated themselves at the downstairs bar. They ordered drinks from barmaid Enid Epstein. Shortly after midnight Merrero folded $70 in a small packet and placed it on the bar; he then asked Epstein if he could buy some "white magic", meaning cocaine. Taking the money, she went to the kitchen area and returned, placing a folded $5 bill in front of Marrero. Inside the folded bill was a small tinfoil packet. The officers then left the premises. (Testimony of Marrero, Delmonte.) Subsequent Public Safety Department laboratory analysis identified the contents of the tinfoil packet as cocaine. (P-3.) VI. As to Count 6 On January 28, 1981, at 12:45 a.m., Officers Clark and Terminello returned to the Club Alexandre in furtherance of their narcotics investigation. Seated at the lower level bar, they ordered drinks from Enid Epstein, the barmaid. Shortly thereafter, Terminello called her over end asked her if there was any chance of their getting some more "toot", another slang ward for cocaine. She replied that she would have to check to "see if any of my people are here." (Tr. 22-I-104.) She then left the bar, walked to the rear kitchen area and returned several minutes later saying, "Yeah, no problem. There is somebody here." Id. Each officer then placed $75 on the bar; she retrieved the money, left for the kitchen area and returned with a folded napkin which contained two small tinfoil packets. (Testimony of Clark, Terminello.) Subsequent Public Safety Department laboratory analysis identified the contents of one of the packets as cocaine. 6/ (P-5.) VII. As to Count 7 On January 29, 1981, at approximately 11:40 p.m. beverage officers, assisted by officers of the Miami Police Department, executed a search warrant on the premises of the Club Alexandre. During the search, Beverage Officer Joseph Maggio found a brown leather purse on a shelf in a locked storage room on the second floor. The outside pocket of the purse contained ten small tinfoil packets containing a white powder suspected to be cocaine. A further search of the purse revealed small baggies and six additional tinfoil packets--all containing suspected cocaine. (Testimony of Maggio, McEwan.) The purse also contained a checkbook and a Florida driver's license issued in the name of Luis A. Vargas. Vargas, the head chef for Club Alexandre, was subsequently located downstairs. After being advised of his rights, Vargas identified the purse as his own. Of the numerous packets of white powder found within the purse, only one was subjected to Public Safety Department laboratory analysis; the contents of that packet were identified as cocaine. (P-7.) VIII. Licensee's Duty to Exercise Reasonable Care end Diligence Before a beverage license can be suspended or revoked for a violation of law on the licensee's premises, the licensee must be found culpably responsible for the violation through his own negligence, intentional wrongdoing, or lack of diligence. 7/ In the instant case, no intentional wrongdoing by Respondent has been alleged or proved. Rather, the Division contends that the violations of state narcotics laws described above resulted from Respondent's failure to exercise reasonable skill and diligence in managing and supervising its operations. Respondent does not dispute that on seven occasions, as alleged, violations of state narcotics laws occurred on the premises; however, it denys negligence or lack of diligence. It affirmatively contends that it took every reasonable precaution to guard against the illegal sale or use of narcotics on the licensed premises. (Testimony of Cachaldora, Petitioner's Proposed Recommended Order, Respondent's Suggested Findings of Fact.) Respondent's contention is unavailing; the evidence establishes that Respondent failed to take reasonable precautions to guard against violations of narcotics laws on its premises--that Respondent failed to exercise reasonable care end diligence in managing its operations and supervising its employees. The following facts justify this conclusion: The alleged violations of narcotics laws occurred on the premises in a recurring, persistent, and practiced manner. They occurred at least seven times--over a 2 1/2- month period--and involved at least three separate employees of the Respondent. Despite the licensee's knowledge or suspicion, through its operators and managers, that violations of state narcotics laws occasionally occurred on it premises, the licensee never expressly enunciated--either to its employees or patrons--a policy forbidding the possession, sale, or use of narcotics. Employees were not admonished against involving themselves in such violations; neither were penalties for such violations announced in advance. Neither was information concerning possible narcotics law violations or convictions elicited from prospective employees. Given the nature and size of the Club, the number of its employees end patrons, and management's knowledge, or suspicion, that narcotics violations had occurred on the premises--the licensee took inadequate steps to (1) monitor activities on the premises, and (2) detect narcotics violations and prevent their occurrence. It employed off-duty Omni security guards only during times when business activity was greatest. At all other times, it relied on its employees for surveillance and security. The place where narcotics violations were most likely to occur--the bathroom facilities on two floors--were monitored by a single valet with minimal security training and who could neither speak nor understand English. The security efforts by the licensee were directed more to controlling disturbing or offensive behavior by patrons than pretending violations of law from occurring on the premises, or taking forceful action when such violations were detected. The quality of the licensee's surveillance program is illustrated by an experiment conducted by Beverage Officer Delmonte. On January 14, 1981--while at the Club with Beverage Officer Marrero--he observed several persons in the men's bathroom with running eyes and noses. During that same visit, Officer Marrero observed several waiters and a patron in the bathroom "sniffing something through their nostrils." (Tr. 22-I-78.) The Respondent's valet was also present in the bathroom at the time. On Officer Delmonte's next visit to the Club--January 27, 1981--he decided to conduct an experiment because of the suspicious activities observed on January 14, 1981. He went to the bathroom with a dollar bill rolled into a small tube; he placed it to his nostril and pretended to inhale something. The valet came in, observed this behavior, and acted surprised. Delmonte then acted embarrassed, smiled, and placed the dollar back in his pocket. After the valet handed him a kleenex, Delmonte exited the bathroom with the valet following him. At the foyer, the valet spoke with an older lady wearing a dark dress; the lady then engaged in a casual conversation with Delmonte and Enid Epstein--who was tending bar. Nothing further occurred in response to Officer Delmonte's experiment. (Testimony of Delmonte, Mendel, McEwen, Maggie, Mato, Clerk, Terminello, Marrero, Guerre, Robertson, Cachaldora, Puig; R-3, R-7.) Respondent's suggested findings of fact are adopted to the extent they establish: (1) Between November 23, 1980, and January 28, 1981, law enforcement officers made numerous undercover visits to the Club when they did not, or were unable to purchase illicit narcotics on the premises; (2) During undercover visits during the period in question--except for the January 14, 1881, incident in the men's bathroom end the incidents alleged in Counts 1 through 7--the officers did not observe anyone using or selling illicit narcotics or marijuana. Moreover, two off-duty police officers who sometimes socially visited the Club-- and were encouraged to do so by Respondent--did not observe any narcotics violations taking place; (3) Each sale of cocaine, as alleged, was preceded by a law enforcement officer's solicitation to purchase; and (4) Unless observed in the act, it is difficult to ascertain--with certainty--whether a person uses, sells, or is inclined to use or sell narcotics. (Testimony of Stillman, Diaz, Sokolowski, Delmonte, Mandel, McEwen, Maggie, Mato, Clark, Terminello, Marrero, Guerra, Robertson.) IX. Appropriate Disciplinary Penalty No aggravating evidence was offered by the Division to justify permanent license revocation; no intentional wrongdoing by Respondent, or its manager, has been shown. Respondent has no record of prior infractions of the Beverage Law. There is no evidence which indicates that Respondent's operator, Alex Cachaldora, was aware that several of his employees were involved with illicit narcotics. In light of the facts of this case, permanent revocation of Respondent's beverage license is unwarranted; rather, a 90-day suspension is appropriate, less any days during which Respondent's beverage license has been effectively suspended by emergency order of the Division. (Testimony of Cachaldora.) Both parties have submitted proposed findings of fact for consideration in this proceeding. To the extent such findings have not been adopted or incorporated in this Recommended Order, they are rejected as irrelevant or unnecessary to resolution of the issues presented or unsupported by the evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, It is RECOMMENDED: That the Division enter a final order suspending Respondent's beverage license No. 23-3953, Series No. 4-COP-SRX, for 90 days; provided, however, to the extent Respondent's license may have been effectively suspended by prior emergency order of the Division, the period of such emergency suspension should be subtracted from the 90-day period. DONE AND RECOMMENDED this 10th day of June, 1981, 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 10th day of June, 1981.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, revoke alcoholic beverage license number 23-1341, Series 2-COP, held by Maritza Garcia, d/b/a Maritza's Pub. RECOMMENDED this 23rd day of May, 1985 in Tallahassee, Florida. Hearings 1550 Hearings J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 FILED with the Clerk of the Division of Administrative this 23rd day of May, 1985.
Recommendation Based upon the foregoing Finding Of Facts and Conclusions Of Law, it is recommended that petitioner Department of Business Regulation, Division of Alcoholic Beverages and Tobacco,enter a final order: Holding respondent Clarece Hicks d/b/a Sand-spur Saloon guilty under the third charge in the Notice To Show Cause; Imposing a civil penalty of $500; and Dismissing the other charges in the Notice To Show Cause. Jurisdiction is retained for purposes of the ruling on the Division's Motion For Costs And Attorneys Fees, served February 25, 1985, filed simultaneously with this Recommended Order and for purposes of determining the Division's reasonable expenses, including attorney fees. RECOMMENDED this 12th day of March, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 12th day of March, 1985.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order suspending alcoholic beverage license number 39-0992, series 4-COP, for two years, beginning September 19, 1984, but also providing that the suspension will be lifted on the condi- tion that and so long as: The licensee gives assurances satisfactory to the DABT that it employ a qualified security guard during business hours for purposes of preventing the use, sale or delivery of illegal drugs and preventing illegal drink solicitations on the premises; The licensee prominently posts signs satisfactory to the DABT in content, form, and placement and easily visible to patrons and employees giving notice of the licensee's policy that violations of the law will be reported to the proper authorities and will result in termination of employees and exclusion of non- employees from the premises; The licensee and its employees enforce the policy described in subparagraph 2. above; The licensee gives assurances satisfactory to the DABT that it holds meetings with all employees at least once a week to reemphasize the policies set forth in subparagraph 2. above; The licensee screen all employees and prospective employees in an manner satisfactory to the DABT. RECOMMENDED this 28th day of November, 1984 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 1984.
The Issue The issue herein is whether Respondent is guilty of the allegations in the Notice to Show Cause.
Findings Of Fact Based upon all the evidence the following Findings of Fact are determined: Respondent, Annie L. Wright d/b/a Coffee's Draft Beer, is the holder of license number 26-1716,License Series 2-COP, issued by Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). The license authorizes Respondent to operate an establishment at 2601 Pearl Street, Jacksonville, Florida to sell beer and wine with consumption on premises. On or about August 12, 1982, Division Beverage Officer Hamilton visited Respondent's licensed premises for the purpose of purchasing illegal drugs. The officer sat at the bar and ordered a beer. While seated at the bar, he observed a card game in progress on the premises in which U.S. currency was being transferred between the players. He also observed two individuals named Red and Wesley who were smoking two cigarettes that the officer believed to be marijuana. When the officer asked a patron where he could purchase marijuana, he was directed to Nell, a cardplayer, who sold him a manila envelope allegedly containing marijuana for $5.00. A drug analysis performed at a later date confirmed that the envelope did indeed contain 2.6 grams of cannabis. The purchase of the drug was made in plain view of the card players, bartender and other patrons seated at the bar. At no time did the bartender (Faye) attempt to stop the gambling, use of drugs or the sale of drugs or to ask the individuals to leave the premises. On or about August 21, 1982, Officer Hamilton returned to Respondent's licensed premises around 11:15 a.m. Faye was on duty as bartender. While there the officer observed a female named Doris Jean Johnson take out a cigarette and smoke it in the presence of the bartender and another female patron. The cigarette was passed to the other female patron who also smoked it. Based upon the odor emanating from the cigarette, Officer Hamilton believed it was marijuana. While smoking the cigarette Faye cautioned Johnson to be careful since police officers occasionally visited the premises. The beverage officer also observed four unidentified males on the premises playing cards. United States currency was being bet on each game and transferred between the card players upon the completion of the games. On or about August 28, 1982, Beverage Officer Junious visited Re5pondent'5 licensed premises around 6:30 p.m. He sat at the bar and ordered a beer from a bartender named Tommy. Officer Junious asked Tommy where he could purchase some "grass". He was told someone on the premises should have some for sale but he (Tommy) wasn't exactly sure whom. While seated at the bar Officer Junious saw six hand-rolled cigarettes being smoked by patrons in plain view of the bartender and other patrons. Based upon their odor and the manner in which they were smoked, the officer believed the cigarettes to be marijuana. On or about September 4, 1982, Beverage Officer Hamilton visited the licensed premises around 4:10 p.m. and ordered a beer from an unidentified male bartender. He observed a card game in progress in which U.S. money was being bet and transferred between the players. The bartender also took a "cut" from the pot on several occasions. During the game Wesley, a card player, pulled a manila envelope from his pocket, had a female patron roll a cigarette from its contents, and then smoked it. Based upon its odor and the manner in which it was smoked, Officer Hamilton believed the cigarette to be marijuana. On or about September 29, 1982 Beverage Officer Hicks executed a search warrant on the premises and arrested Doris Jean Johnson for possession of cannabis. A laboratory analysis later confirmed that Johnson was in possession 8.6 grams of cannabis. Respondent stated that when the above events occurred, she was working another full-time job. For that reason she hired Faye to manage the establishment. When Faye was hired she was instructed not to permit gambling or smoking on the premises. She also posted a sign on the front of the building which read "No drugs allowed on premises. Because of her full-time job, and the fact she had no transportation and did not live nearby, Respondent visited the premises only at night. When she learned that drugs and gambling had been discovered at her business, she fired all employees who were working during that period of time.
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 her beverage license number 26-1716 be suspended for a period of thirty days. DONE and RECOMMENDED this 28th day of June, 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 June, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire 725 South Bronough Street Tallahassee, Florida 32301 Annie L. Wright 1703 North Liberty Street Jacksonville, Florida Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Respondent's beverage licensure should be subjected to sanctions for allegedly selling alcoholic beverages to a minor and what if any penalties should be imposed.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating licensure, and practice under that licensure, of alcoholic beverage-selling entities in the State of Florida, including administration of the laws and rules related to the selling of alcoholic beverages by restaurant businesses. The Respondent is an entity licensed and domiciled in the State of Florida and authorized to sell alcoholic beverages under license number 55-00306, Series 2-COP. The Respondent is subject to the Division's regulatory jurisdiction. The subject license allows the Respondent to make sales "by the drink" for consumption on the premises at the restaurant business located at 1766 S. Eighth Street, Fernandina Beach, Florida. On October 22, 2002, Ms. Deidre Kaye Miller, then 18 years of age, was employed as an I.A. by the Petitioner Agency for the purpose of attempting to purchase beer at the Respondent's restaurant. She was paid a total of $35.00 for her services as an undercover operative that day by the Division. She was given instructions by Agent Edwards and Agent Maxwell to attempt to purchase an alcoholic beverage from the Respondent. Ms. Miller was told that if asked for identification she was to show her valid Florida Driver's License, if asked her age to tell her correct age and not to engage in any extensive conversation with anyone. On October 22, 2002, Ms. Miller entered the restaurant and walked to the left of the entrance where the bar was located. A waitress asked what she wanted and she told her she wanted a Corona (Beer). After Ms. Miller ordered the beer from the waitress the owner and Respondent Mr. Wong came over and asked for her identification. She provided her driver's license as an I.D. to Mr. Wong. As he was checking her driver's license the waitress, Tabitha Cornett, opened the Corona and set it on the counter so that it would be ready when Mr. Wong approved giving Ms. Miller the beer. The point on the bar where the beer was placed was approximately 16 feet away from where Mr. Wong and Ms. Miller were having the conversation about her I.D. Mr. Wong viewed Ms. Miller's Driver License I.D. for 30 or 45 seconds. The driver's license had her correct name and date of birth, which was in 1984, and a statement printed on the license which said "Under 21 until 09-02-05." Mr. Wong allowed the beer to be served to Ms. Miller. Ms. Miller took the beer and placed it on a table near the bar. She then indicated to the waitress that she was going to call friends to meet her and walked outside the restaurant, leaving the beer on the table. In restaurant sales situations, IAs are instructed to depart the premises once they have been served alcohol. Generally payment will not be tendered because, in restaurant situations, the law and licensure calls for consumption on the premises and it is customary to consume the alcohol and pay for at the end of one's stay at the restaurant. In the instant situation neither Ms. Miller nor anyone else ever paid for the beer in question. Mr. Wong acknowledged in a due diligence statement taken at 5:30 p.m., on the day in question October 22, 2002 (in evidence as Petitioner's Exhibit four) that he checked the I.D. but he wasn't wearing his glasses and he thought it said that Ms. Miller was born in 1964. He asked her, "You were born in 64?" He said in his statement that Ms. Miller did not reply to him and then he states (in his due diligence statement) that he told her that she was too young for that I.D. and again she said nothing. He again asked her if this was her I.D. and she said nothing. He handed it back to her. He then said in the statement: "I did not want to insult someone so I allowed it served." In other words he questioned whether she was old enough based upon the I.D. he saw; believing it to say 1964 because he did not have his glasses on, but also believing that she appeared too young for that I.D. Ms. Miller left the premises and Agent Edwards and Agent Maxwell entered the premises and informed Mr. Wong that he had just allowed service of alcohol to a minor. Thereafter Mr. Wong was placed under arrest handcuffed, and taken to the Nassau County Jail. Mr. Wong had never had any beverage-related offense on his record prior to that time. No investigation or prosecution concerning his business had ever occurred up to that point. A criminal prosecution was instituted against him concerning this same incident and facts, which resulted in a jury verdict of acquittal. The totality of the evidence shows that although Mr. Wong did not actually serve Ms. Miller, he did allow a beer to be served to her. She was under 21 years of age. Mr. Wong testified that even though one person checks identification, any employee can open a beer and place it on the counter or service bar. Ms. Cornett did so in this case, placing the beer at the far end of the service bar from where Mr. Wong and Ms. Miller were conversing concerning her I.D. This allows the beer to be ready once the person checking the I.D. authorizes the sale. In the situation at hand, Ms. Cornett opened the beer, placed in on the bar and Mr. Wong then went through the door away from the bar into the main part of the restaurant. Ms. Miller, the I.A., then took the beer from the bar and placed it on the table and told Ms. Cornett that she was going outside to meet her friends or to call her friends. After that occurrence the other agents named above came in, explained the situation to Mr. Wong, and arrested him during the course of which discussion he made the above-referenced statement. Mr. Wong never touched the beer in question and Ms. Cornett never actually physically handed it to Ms. Miller, but both Mr. Wong and Ms. Cornett allowed Ms. Miller to take the beer from the bar and place it on her table, thus taking the beer into her own custody and control at least temporarily, even though no money was exchanged in return for the beer.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties it is, therefore, RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, finding that the Respondent violated Section 562.11(1)(a), Florida Statutes, and that he be required to pay a $250.00 fine to the Division. DONE AND ENTERED this 31st day of July, 2003, in Tallahassee, Leon County, Florida. S COPIES FURNISHED: Christina Pardieck, Assistant General Counsel P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 31st day of July, 2003. Division of Alcoholic Beverage and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-2202 Gary Barker, Esquire Post Office Box 1177 Callahan, Florida 32011 Hardy L. Roberts, III, General Counsel Division of Alcoholic Beverage and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Peter Williams, Director Division of Alcoholic Beverage and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Petitioner is an agency of the State of Florida which has as its responsibility the licensure and regulation of beverage license holders in the State. The Respondent, 27th Avenue Corporation, doing business as Climax Lounge, holds Division of Alcoholic Beverages and Tobacco License No. 23-0358, Series 4-COP. At all times pertinent hereto John Ekberg and Daniel A. Wick were the sole corporate officers and shareholders of 27th Avenue Corporation. The Climax Lounge, the premises which are the subject of this proceeding, is located at 12001 N. W. 27th Avenue, Miami, Florida. In the early morning hours of January 17, 1981, undercover Beverage Officer Aurelius Thompson visited the Climax Lounge in the course of an investigation of suspected "drug violations" allegedly occurring on the premises. Officer Thompson approached a barmaid by the name of O. Z. Porter and engaged her in conversation, ultimately asking if she knew where he could obtain cocaine and she indicated she had none. At this time Officer Thompson observed a group of patrons "snorting a white powder" at the end of the bar where he was sitting. He spoke with an individual named "Larry" who indicated he had one gram of cocaine for sale for $75.00. Officer Thompson left the bar to get the required purchase price, and upon returning, Larry's brother Michael sold him approximately one gram of a white powdery substance which later proved to be cocaine. The parties in this proceeding have stipulated into evidence the lab reports and agreed that the substances obtained or purchased by the two investigating officers, Officer Thompson and Officer Alford, were cocaine and marijuana. The above described exchange of cocaine occurred inside the licensed premises at the bar. The exchange was made with the barmaid O. Z. Porter standing across the bar in close proximity to the transaction. Officer Thompson offered Ms. Porter some cocaine at the time of the exchange, but she refused, although she accepted some in a wadded up dollar bill for later use. In the early morning hours of January 23, 1981 this same officer returned to the Climax lounge. He went into the men's restroom and encountered an individual by the name of "Leech." "Leech" had a cellophane bag of capsules containing a white powder which he offered for sale for $10.00 each. He also had a bag with a larger amount of white powder selling for $25.00 per packet. Officer Thompson, during this encounter, purchased a foil package containing the white powder from Leech for $25.00. The contents of the packet proved to be cocaine. After concluding his transaction with the individual called "Leech" In the restroom, Officer Thompson then returned to the common area of the lounge and took a seat at the bar. He encountered and engaged in a conversation with the same individual named "Larry" whom he had met on his visit to the bar on January 17, 1981 in connection with the first purchase of cocaine on the premises. As a result of the second encounter, Larry ultimately sold Officer Thompson a packet of cocaine for $70.00. This transaction was conducted and concluded in approximately the center portion of the bar in plain view and was observed by "Norma", a barmaid employed by the Respondent. Beverage Officer Alford was also present on the premises the night of January 23, 1981 assisting in this investigation. While on the Respondent's premises he also purchased a quantity of cocaine from the individual known as Leech. The cocaine was contained in a capsule for which he paid $10.00, which transaction also occurred in the men's restroom of the Respondent's facility. Officer Thompson described his training in identification of cocaine and marijuana and established that on both visits of January 17 and January 23, 1981 he observed patrons in various areas of the lounge "snorting" what he believed to be cocaine and smoking or rolling marijuana cigarettes. Officer Thompson returned to the Climax Lounge on January 25, 1981. He approached a barmaid by the name of "Johnnie Mae" and inquired of her whether she knew who could sell him some marijuana. Johnnie Mae directed Officer Thompson to an individual called "Richard". The barmaid introduced Thompson to Richard and informed Richard that Thompson wanted to purchase some marijuana. Richard led Officer Thompson into the men's restroom where Thompson viewed "Leech" at the sink with a small quantity of marijuana in view. Thompson then purchased from Leech a small quantity of marijuana for $10.00. Upon leaving the restroom, Officer Thompson was summoned to the bar area by the previously identified individual, Larry, who informed Thompson that he had a gram of cocaine which he wished to sell him for $70.00. Thompson agreed and purchased the cocaine for that amount with the transaction taking place at the bar in front of the barmaid "Norma." Thompson thereupon asked Norma if she desired any cocaine, which she refused. On this evening, while he was in the restroom purchasing marijuana from Leech, Thompson observed approximately five individuals smoking marijuana. Pursuant to the investigation conducted by these officers, at this point, an Emergency Order of Suspension was entered against the license of the Respondent on January 29, 1981. On February 14, 1981 Officer Thompson accompanied by Officer Alford again entered the lounge on an additional visit. On this occasion Officer Thompson was approached by the same individual "Larry" from whom he had made the previous purchase and ultimately bought from Larry a quantity of cocaine for $65.00 on this occasion. Officer Thompson's observations on each occasion were approximately one to three hours in duration and he observed the use of cocaine and marijuana on each occasion, as did Officer Alford. Both officers indicated that they saw security guards on duty and circulating through the licensed premises, but were apparently unaware of the extent and vigor of enforcement procedures by the security guards. Officer Thompson did describe a plain clothed individual, whom the Respondent established was its security guard Larry McFadden, who forced he and other patrons to leave the men's restroom of the facility on the occasion of the February 14, 1981 visit. Other than this incident, the two officers testifying did not observe security guards attempting to curb the use or sale of drugs on the premises other than the management attempting to keep out of the restrooms people who had been there an inordinate period of time. The Respondent presented testimony from its corporate owners and several employees regarding their policy and efforts designed to curb the use of drugs on the premises. The manager, Ira Maxwell, verbally informed his employees of the licensee's prohibition of the presence or use of drugs on the premises and promulgated a set of written rules against certain activities, including the use of drugs or condonation by employees of the presence of drugs on the premises. The employees were required to sign acknowledgments that they had read and were informed of these rules. Employees Norma Jean Riley and O. Z. Porter signed these acknowledgments. The Manager' testimony established that the licensee's policy regarding controlled drug presence and drug transactions was to ask the possessors of drugs to leave the premises and, if their behavior was repetitive, to permanently bar them from the premises. Both the licensee's manager and its owner, Mr. Ekberg, established that warning signs prohibiting the use of drugs, or transactions involving drugs, were posted at several points in the common areas of the club at all times pertinent herein. Officer Thompson stated that he had simply not noticed the signs while he was on the premises. The club's manager, Ira Maxwell, testified that although he made personal observations of the public areas of the premises, most of his time was spent in the office. The principle stockholder and owner, Mr. Ekberg, is on the premises daily, but generally leaves around 10:00 p.m. each night. The lounge's open hours are from 9:00 p.m. to 5:00 a.m. Three security officers patrol the club at all times it is open with instructions to eject drug traffickers, users or possessors from the premises. Employees are instructed to advise management when a patron is observed using or possessing controlled drugs. The principle security officer, Larry McFadden, Jr. corroborated the fact that the drug warning signs were posted at the club during all times pertinent hereto. Be is constantly on watch for drug use and orders such people to leave the premises if he suspects their use or involvement with drugs. McFadden established that at certain times, although he maintains a constant vigil, it is difficult to observe everything that transpires. Sometimes he must make rapid judgments in deciding whether situations involving violence or use of weapons are more critical at a given moment than apprehension of patrons who have brought drugs onto the premises. Neither McFadden nor the club's manager, Ira Maxwell, had ever summoned police in an effort to curb the possession or use of controlled drugs on the Premises. Mr. Ekberg, the Respondent's president, inquires daily of McFadden regarding problems occurring the previous evening and primarily relies on his manager, Ira Maxwell, to maintain order. His inquiries are generally directed to instances of property damage and fights. He too emphasized that the Respondent's policy towards drug use is to eject those possessing drugs and permanently bar those suspected of dealing in drugs from entry on the premises. His primary duties when present at the club involve ordering supplies, preparing the payroll and other administrative duties. He has in the past had difficulty obtaining police assistance and controlling drug use at his club. On one occasion Mr. Ekberg suggested to the police that they place undercover officers at the club for curbing drug usage and he has inquired of his employees on occasion regarding individuals suspected of being drug users, but has not made a practice of seeking law enforcement assistance nor have his management and employees ever summoned police in an effort to eliminate illegal drug activity. Mr. Ekberg believes that only hiring an undercover, unknown security staff would permit him to obtain any better results in eliminating the presence of drugs on his licensed premises. He has been in the liquor business for approximately 20 years with no previous violations. No testimony was offered however which could establish that any member of management or any employee of the Respondent attempted to learn the identities of patrons alleged to have been using or trafficking in drugs on the licensed premises or to aid in apprehending them, even after being served with the subject emergency suspension orders. On April 22, 1981 the second Notice to Show Cause (Case No. 81-1218) was served on the Respondent with the identical charges relating to the observations by the Petitioner's officers occurring on February 13 and 14, 1981 at the licensed premises referred to above which observations occurred after the initial suspension order entered in Case No. 81-1090 was served on the Respondent.
The Issue Whether or not on or about October 31, 1975, the Respondents, Bossie Mae and Willie Mae Browdy, licensed under the beverage laws as a package store, and/or their agent, servant or employee, to wit: Bossie Mae Browdy did allow or permit the consumption of alcoholic beverages on their licensed premises, contrary to Rule 7A-3.05, Florida Administrative Code. Whether or not on or about November 1, 1975, the Respondents, Bossie Mae and Willie Mae Browdy, licensed under the beverage laws as Browdy's Mini Market with a 2-APS license to wit: Bossie Mae Browdy did allow gambling (card) on the licensed premises, contrary to Section 849.08, Florida Statutes and in violation of Section 561.29, Florida Statutes.
Findings Of Fact At present, and on October 31, 1975 and November 1, 1975, the Respondents, Bossie Mae and Willie Mae Browdy are and were the holders of a beverage license with the State of Florida, Division of Beverage number 69-299, 2-APS. On October 31, 1975, Eugene Fogel, a Division of Beverage enforcement officer entered the premises licensed by the State of Florida, Division of Beverage, which was operated by the Respondents at Avenue B on Chuluota Road, Oviedo, Florida. While in the store he observed an unknown black female consuming a beverage which was marked Millers High-Life. This consumption was taking place in the presence of the Respondent, Bossie Mae Browdy, and in the course of the consumption a conversation was taking place between the unknown black female and Bossie Mae Browdy. The bottle which Officer Fogel observed was marked with identifying information which the officer based upon his experience, felt indicated that it contained an alcoholic beverage. On November 1, 1975, officer Fogel returned to the licensed premises of the Respondents and entered into a card game in a porch like area which is immediately at the front of the store and connected to the store. This card game was between Fogel and several black males who were participating in a card game when he approached. The game took place over 45 minutes and money was exchanged at 25 cents a game for the winner, for a total amount of approximately $2.00. During the course of the game, Bossie Mae Browdy came to the door and looked out at the card game being played.
Recommendation It is recommended that the Respondents, Bossie Mae and Willie Mae Browdy, be fined in the amount of $100 for the offense as established through this administrative complaint. DONE and ENTERED this 24th day of November, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Curtis, Esquire Division of Beverage The Johns Building Tallahassee, Florida 32304 Carl Thompson, Esquire 25 South Magnolia Avenue Orlando, Florida 32801
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Edward Lee Howell, held alcoholic beverage license number 46-01252, Series 2-COP, issued by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent used the license to sell beer and wine (for on-premises consumption only) at an establishment known as Mr. B's Lounge located at 2712 Towles Street, Fort Myers, Florida. Because of numerous violent crimes, including murder and robbery, that had occurred in an area around the lounge, the Lee County Sheriff's Department (Department) maintained what it called a "constant area check" in the neighborhood surrounding the bar. Indeed, respondent acknowledged that the most recent murder had occurred across the street just two weeks prior to hearing. In all, Department personnel made around twelve visits to the lounge in 1990. After receiving a report that alcoholic beverages were being sold or consumed after closing hours at respondent's lounge, a deputy sheriff, James Nygard, visited the licensed premises around 3:45 a.m. on December 8, 1990. During that visit, Nygard gave respondent a copy of Lee County Ordinance No. 76- 9 and read section 4.2 of the ordinance to respondent. That section prohibits the sale, dispensing or consumption of "any type of alcoholic beverage on or off the premises" between the hours of 2:00 a.m. and 7:00 a.m. every day of the week. Howell acknowledged to Nygard that he understood the law. Although Nygard contended that during his visit he observed at least one patron drinking what appeared to be an alcoholic beverage from a beer can, he opted to give Howell only a warning. At approximately 3:10 a.m. on December 23, 1990, Nygard and another deputy, Glenn Kraft, entered the licensed premises and observed an estimated eighty to one hundred patrons still in the lounge. Nygard also observed two unidentified black males in the crowd lift beer cans to their mouths and take a sip of the contents. Nygard recalled that there was condensation on one of the two cans of beer. However, Nygard did not seize the beer cans as evidence or arrest the two patrons, and there is insufficient evidence, inferential or otherwise, to establish that the drinks being consumed were actually beer. Nygard then asked Howell to step outside where Howell was given a citation for allowing beer to be sold and/or consumed on the licensed premises after 2:00 a.m. in contravention of Lee County Ordinance 76-9. The parties agree that criminal charges were filed against respondent but later dismissed on the ground Nygard could not prove that the two patrons were actually consuming beer. According to respondent, Nygard was only on the premises for a few seconds before going outside to write up the citation. Howell denied that the customers were drinking beer and pointed out that he has given his four employees strict instructions to stop all beer and wine sales at 1:30 a.m. and to clear the tables of beer cans by 2:00 a.m. After that hour, he operates a dance club until around 4:00 a.m. and sells soft drinks and food to customers. On July 23, 1990, the Division sent respondent by certified mail an "official notice" relating to a complaint about sales and consumption of alcoholic beverages taking place after 2:00 a.m. Other than that notice, there is no evidence of any other disciplinary action being taken against respondent during the eight years he had held a license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent be found not guilty of violating Subsection 561.29(1)(a), Florida Statutes (1989) and the notice to show cause be dismissed with prejudice. RECOMMENDED this 12th day of July, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2091 Petitioner: 1. Adopted in finding of fact 1. 2-3. Adopted in finding of fact 4. Partially adopted in finding of fact 4. Adopted in finding of fact 4. Adopted in finding of fact 3. Adopted in finding of fact 2. COPIES FURNISHED: Nancy C. Waller, Esquire 725 South Bronough Street Tallahassee, FL 32399-1007 Mr. Edward Lee Howell 1348 Brookhill Drive Fort Myers, FL 33916 Donald D. Conn, Esquire 725 South Bronough Street Tallahssee, FL 32399-1007 Richard W. Scully, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, FL 32399-1007
The Issue Petitioner (hereafter DABT) seeks to assess a civil penalty against, or to suspend or revoke the Division of Beverage license issued to, Respondent, Ernest Isaac (hereafter Isaac) doing business as Rip's Corner. DABT has charged Isaac with four (4) violations of the beverage law. It is alleged that Isaac unlawfully possessed alcoholic beverages for which excise taxes had not been paid, that he unlawfully possessed for the purpose of sale or resale, malt beverages which did not have the word "Florida" printed on the lid, that he unlawfully possessed an alcoholic beverage which was not authorized to be sold under his beverage license and finally that Isaac conspired with another person to unlawfully obtain his beverage license.
Findings Of Fact Isaac is the holder of series 2-COP Alcoholic Beverage license, State of Florida, number 26-1381 for the years 1976-77 and 1977-78. The license was first issued in 1973. Series 2-COP vendor's licenses authorize the sale of beer and wine for consumption on the premises. Isaac, the nominal licensee, had nothing to do with the existing business at the licensed premises known as Rip's Corner. The initial issuance of the license was obtained by Isaac on behalf of a Mr. Cornell Tarver because Tarver thought at the time that he was a convicted felon. In fact, Tarver later discovered that he was not a convicted felon. Nonetheless, the license has continued to be reissued in Isaac's name. Rip's Corner is actually run by Cornell Tarver and has been since 1973. Tarver supervises the day to day management of the business by one Cecil Jackson, pays Jackson, does the hiring and firing and otherwise conducts all aspects of the business operation. On July 16, 1977, Mr. Robert L. Dirst, a patrol officer with the United States Customs Services, went to the licensed premises in the company of Detective Sykes of the Jacksonville Sheriff's office. The purpose of the visit was to determine whether there was any stolen beer on the premises. The two originally intended to go to the Pace Setter Club but that was closed. The two went to the licensed premises with the understanding that they could locate the owner of the Pace Setter Club there. Mr. Tarver had a key to the Pace Setter Club and let them in. At that time, Detective Sykes advised Tarver that he was looking for stolen beer. Tarver told Sykes that he had recently purchased ten cases of what purported to be Miller High Life beer and agreed to take the two officers to the licensed premises to show them the cases. The cases were stamped "For Export Without Payment of Tax." The two officers at that point placed the ten cases under seizure and took them into custody. On September 14, 1977, Richard A. Boyd, a beverage officer with DABT, went to the licensed premises and identified himself to the person in charge, one Ceaser Jackson. At that time, Boyd found two bottles of liquid labeled "Leroux Sloe Gin." Boyd seized these bottles because the license allows only the sale of beer and wine beverages. Isaac, when asked about the sloe gin, claimed it was his and that he inadvertently left it on the licensed premises. At the hearing, no evidence was introduced other than the containers themselves to establish whether the liquids were alcoholic beverages or malt beverages.
