Findings Of Fact At all times material hereto, respondent, Garnetta Yvonne Graham, held alcoholic beverage license number 23-05643, series 2APS, for the premises known as Alexs Grocery, 260 N.W. 71st Street, Miami, Florida. On June 17, 1988, Detective Rickey Mitchell of the Metro Dade Police Department, operating undercover, entered the licensed premises to purchase narcotics. He approached the young lady who was working behind the counter and asked her for a "dime cigarette" and a "ten cent rock" (cocaine), and passed her a ten dollar bill and one dime. The young lady went to a room at the rear of the store, and when she returned told Detective Mitchell that she did not have any "ten cent rocks" but only "five cent rocks." When Detective Mitchell told her that he would accept two "five cent rocks," the young lady returned to the room at the rear of the store and upon her return delivered two plastic baggies to Detective Mitchell. The contents of the baggies were subsequently analyzed and proved positive for cocaine. The subject transaction was done openly, and with no attempt to conceal its occurrence from other persons on the premises. Respondent was not, however, present, and there was no proof that she had any actual knowledge that narcotics were sold or possessed on the licensed premises. In an apparently unrelated incident, respondent was charged by an information filed with the Circuit Court of Dade County, Florida, with having unlawfully and feloniously possessed cocaine on July 24, 1988, in violation of Section 893.13, Florida Statutes, a third degree felony. 2/ On October 31, 1988, following a plea of nolo contendere, a final judgment was entered finding respondent guilty as charged.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order revoking alcoholic beverage license number 23-05643 held by respondent, Garnetta Yvonne Graham d/b/a Alexs Grocery. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of May 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1989.
The Issue This case concerns an Administrative Complaint filed by the Petitioner against the Respondent. Count I to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its director, stockholder or corporate officer, namely: Carl Bilotti, related to the possession, sale and/or delivery of the controlled substance cocaine on July 15 and 18, 1981; August 20, 1981; and September 9 and 20, 1981. Count II to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee namely: "Anne," related to the possession of the controlled substance cocaine on August 22 and 28, 1981. Count III to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Anne," related to the possession, sale and/or delivery of the controlled substance cocaine on August 23, 1981, and September 4, 1981. Count IV to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Sandy," related to the possession, sale and/or delivery of the controlled substance methaqualone on July 19 and 25, 1981, and the possession, sale and/or delivery of the controlled substance cocaine on August 14, 22 and 23, 1981. Count V to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Eve," related to the possession, sale and/or delivery of the controlled substance diazepam on July 23, 1981. Count VI to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Gina," related to the possession, sale and/or delivery of the controlled substance diazepam on July 25, 1981, two (2) incidents. Count VII to the Administrative Complaint accuses the Respondent of violations of Sections893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Ivy " related to the possession, sale and/or delivery of the controlled substance cocaine on August 14, 1981. Count VIII to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Shayne," related to the possession, sale and/or delivery of the controlled substance cocaine on July 25, 1981. Count IX to the Administrative Complaint alleges that between July 15, 1981, and October 2, 1981, the Respondent, by actions of its agents, servants, employees, manager, corporate officer and stockholder, maintained a place, to wit: the licensed premises, at 2095 best Fourth Avenue, Hialeah, Florida, which place was used for keeping or selling of controlled substances, namely: cocaine, methaqualone and diazepam, in violation of Subsection 893.13(2)(a) 5; Florida Statutes, within the meaning of Subsection 561.29(1)(c), Florida Statutes. Count X to the Administrative Complaint alleges that between July 15, 1981, and October 2, 1981, the Respondent, through its agents, servants, employees, manager, corporate officer and stockholder, kept or maintained a public nuisance on the licensed premises, to wit: maintaining a building or place which is used for the illegal keeping, selling or delivering of controlled substances within the meaning of Chapter 893, Florida Statutes, in violation of Section 823.10, Florida Statutes, and Subsection 561.29(1)(c) , Florida Statutes. Count XI to the Administrative Complaint alleges that on or about July 25, 1981, an agent, servant or employee of the Respondent, one Gina, while engaged as a dancer, unlawfully offered to commit prostitution, in violation of Subsection 796.07(3)(a), Florida Statutes, causing a violation on the part of the Respondent of Subsection 561.29(1)(a), Florida .Statutes. Count XII to the Administrative Complaint alleges that on or about October 2, 1981, an agent, servant or employee of the Respondent, namely: Cathryne Edmondson, possessed a controlled substance, to wit: marijuana, on the licensed premises, in violation of Subsection 893.13(1)(a) Florida Statutes, causing a violation of Subsection 561.29 (1)(a) , Florida Statutes. Count XIII to the Administrative Complaint alleges that on or about December 2, 1981, a director, stockholder or corporate officer, namely: Carl Bilotti, corporate vice-president and 50 percent stockholder, pled guilty and was adjudicated guilty in the Circuit Court of the State of Florida, Eleventh Judicial Circuit, on five (5) counts of violation of Section 893.13, Florida Statutes, sale of controlled substances, namely: cocaine, a felony, and that the felony conviction impairs qualifications of the Respondent to obtain and continue holding an alcoholic beverage license under Subsection 561.15(3), Florida Statutes, and Subsection 56l.29(1)(b), Florida Statutes.
Findings Of Fact The Petitioner had served an Administrative Complaint on the Respondent, which Administrative Complaint contained the Counts as set forth in the Issues statement to this Recommended Order. Subsequent to that time, the Respondent, in the person of counsel, requested a formal Subsection 120.57 (1), Florida Statutes, hearing and the formal hearing was conducted on January 6, 1982. As indicated by correspondence from former counsel for the Respondent to counsel for the Petitioner dated December 15, 1901, Respondent's counsel withdrew from the case. This withdrawal of counsel postdated a Notice of Hearing setting forth January 6, 1982, as the date for hearing and a separate Order of November 24, 1981, which identified January 6, 1982, a the date for hearing. Notwithstanding the Notice and separate Order identifying January 6, 1982, as the hearing date, the Respondent, by and through its attorney or other authorized representative, did not attend the formal hearing. Although the Respondent was not in attendance, the hearing was conducted in view of the continuing request for hearing, which has never been withdrawn. The Petitioner is a governmental agency in the State of Florida, which has, among other duties, the licensure of the several alcoholic beverage license holders in the State of Florida, and the requirement to discipline those beverage license holders who have violated the terms and conditions of their licensure. The Respondent Carl and Mike, Inc., is the holder of an alcoholic beverage license issued by the Petitioner. The Respondent trades as the Raw Hide Bar at a licensed premises at 2095 West Fourth Avenue, Hialeah, Dade County, Florida. On July 15, 1981, at approximately 9:45 P.M., Beverage Officer L. J. Terminello, and a confidential informant, who was assisting Officer Terminello, entered the licensed premises in undercover capacities to continue an investigation which had begun on July 12, 1981. (The Beverage Officer and confidential informant had been in the licensed premises on that former date for purposes of conducting a narcotics investigation.) On this occasion, the investigative purpose was to purchase narcotics. Terminello and the informant took a seat at the bar and waited for the appearance of Carl N. Bilotti, the vice-president of the Respondent and 50 shareholder. It was the intention of Terminello to attempt to purchase narcotics from Bilotti. At 10:50 P.M. Bilotti had not arrived at the licensed premises and Terminello decided to leave; however, when he reached the front door, Bilotti was entering and Bilotti spoke to the confidential informant in the parking lot area of the licensed premises. The confidential informant, in the course of that conversation, asked Bilotti if, "we could get any coke," meaning Terminello and the confidential informant were interested in purchasing cocaine. Bilotti responded by stating, "Sure, no problem. Wait here a minute, I'll be right back." Bilotti then entered the licensed premises and returned a few minutes later and handed the confidential informant a piece of aluminum foil which was folded and the confidential informant handed this item to Terminello. Terminello opened the package and noted a quantity of white powder. Terminello asked Bilotti, "how much" and Bilotti stated, "anything close to $70.00." Terminello paid Bilotti $70.00 in United States currency and following a short conversation, departed the area of the licensed premises. The white powder in question was in fact cocaine. Terminello and the confidential informant returned to the licensed premises on July 18, 1981, at approximately 12:15 A.M. Terminello approached Carl Bilotti who was standing at the end of the bar area next to a cash register. Terminello asked Bilotti if he had any "stuff," referring to cocaine. Bilotti answered "sure" and indicated that the cost for the cocaine would be $70.00. Terminello agreed to the price, telling Bilotti that he would meet him in the mens room for purposes of the exchange of drugs and money. At approximately 12:20 A.M., while located in the mens rest room of the licensed premises, Terminello paid Bilotti $70.00 in United States currency and Bilotti gave Terminello a folded piece of white paper which Terminello could see contained white powder. Shortly thereafter, Terminello and the confidential informant exited the licensed premises. The white powder which had been purchased was analyzed and revealed the presence of cocaine. On July 19, 1981, at around 11:00 P.M., Officer Terminello returned to the licensed premises. While in the licensed premises he spoke with Sandra McQuire, a person that he had met on July 12, 1981. On July 12, 1981, McQuire had been employed as a cocktail waitress on the licensed premises and Terminello had been advised by the confidential informant that McQuire had delivered ten (10) methaqualone tablets to the confidential informant on that date. On that date, July 19, 1981, Terminello told employee McQuire that he wanted to purchase ten (10) more "ludes, meaning methaqualone. At around 11:20 P.M., while Terminello was sitting at the bar, McQuire walked by and handed him a napkin containing ten (10) white tablets. A few minutes later, Terminello handed McQuire $30.00 in U.S. currency in payment for the white tablets. Terminello then left the licensed premises at approximately 11:40 P.M. The ten (10) tablets were subsequently analyzed and found to be methaqualone. On July 23, 1981, at approximately 12:30 A.M., Officer Terminello and the confidential informant entered the licensed premises. Terminello and the confidential informant took a seat at the bar, where shortly afterwards a conversation ensued with an employee/dancer who identified herself as "Eve" and was later determined to be one Eve Mary Carroll. Carroll and the confidential informant had been acquainted prior to this time. During the course of the conversation, Terminello asked Carroll if she knew where he could get some "good ludes." This refers again to methaqualone. Carroll told him that she was "holding," meaning that she had some in her possession. She asked Terminello to pay her $4.00 for each tablet. She stated that the price was higher because they were "pure methaqualone tablets" and that they would "really do a job." Terminello told Carroll that he would purchase three (3) tablets and handed her $12.00 in U.S. currency. A few moments beyond this time, at around 12:45 A.M., Carroll handed Terminello three (3) tablets, each individually wrapped in aluminum foil, which tablets Terminello placed in his pocket. The suspect methaqualone tablets were later determined to be diazepam. On the same date, July 23, 1981, Terminello observed Carl Bilotti enter the licensed premises at around 1:00 A.M. In the course of a conversation that ensued, Bilotti told Terminello he could sell Terminello some cocaine, but that the transaction would have to occur later, in that Bilotti had to leave the licensed premises. Terminello waited until 2:30 A.M. and Bilotti never returned. On July 25, 1981, at approximately 12:00 A.M., Terminello and the confidential informant went back to the licensed premises. Over the next hour and a half, Terminello talked to Carl Bilotti and employee Sandra McQuire about purchasing narcotics; however, neither of those persons were able to deliver narcotics at that time. On that same date, Terminello and the confidential informant did speak with a dancer/employee in the licensed premises who was identified as "Gina" and this individual indicated that she had some "ludes" for sale, meaning methaqualone, that she would sell for $3.00 each. Terminello indicated that he would like to purchase five (5) tablets and they walked out the front door of the premises and Terminello gave her $15.00 in U.S. currency, in return for five (5) white tablets which were marked "Lemon 714." Those tablets were subsequently analyzed and found to be diazepam. At around 2:45 A.M. on July 25, 1981, while in the bar area, Terminello and the confidential informant spoke to an individual, a male, who was known as "Frenchie" later identified to be one Laurent E. Duval, who was in the company of a dancer employed in the licensed premises whose name was "Shayne" later identified to be Sharon K. Hicks. In the presence of Hicks, Terminello and Duval negotiated for the sale of a quantity of cocaine for the amount of $75.00. Duval also indicated that he had to be careful because he had a stolen car, was carrying a firearm and had recently been placed on probation by Circuit Court for narcotics and firearms charges. Duval told Terminello that the narcotics arrangement would have to be consummated in the parking lot of the licensed premises in view of the fact that too many people he did not know were in the bar. Terminello and the confidential informant exited the licensed premises at around 3:00 A.M. in the company of Duval and Hicks. Duval took a seat on the driver's side of an automobile in the parking lot and Hicks sat in the front passenger side seat. Duval handed Terminello a large plastic bag. containing a quantity of white powder which was suspect cocaine. Terminello started to hand Duval $75.00 in U.S. currency but Duval refused to take it, telling Terminello to hand the money to Hicks. Hicks had been observing this transaction and agreed to take the money and did accept the $75.00 in U.S. currency. The suspected cocaine was later revealed to be cocaine. Terminello next returned to the licensed premises on July 25, 1981, at around 9:30 P.M. At that time he was in the presence of the confidential informant. Terminello and the confidential informant took a seat at the bar and were approached by a dancer/employee who had earlier been identified as "Gina." There had been a prior telephone negotiation between the confidential informant and "Gina" for the purchase of five (5) "ludes," methaqualone, and in keeping with that arrangement, "Gina" handed Terminello a white napkin which contained five (5) white tablets. Terminello in turn gave "Gina" $15.00 in U.S. currency. Those tablets were subsequently analyzed and found to be diazepam. On the same evening, i.e., July 25, 1981, at around 9:45 P.M., the cocktail waitress, Sandra McQuire, approached Terminello and stated that she had five (5) methaqualone tablets that Terminello had asked for on the prior evening. She handed him a zip-lock plastic bag containing five (5) white tablets marked "Lemon 714." Shortly after this time, Terminello gave McQuire $15.00 in U.S. currency to pay for the tablets. Those tablets were subsequently analyzed and found to be methaqualone. At around 10:15 P.M. on July 25, 1981, the dancer/ employee "Gina" approached Terminello while he was seated at the bar and advised him that if he "got rid of" his "old lady" and returned about 4:00 A.M. to the premises that she, "Gina," would show him a good time by "fucking his brain out" for $50.00. Terminello acknowledged this offer. On August 3, 1981, at approximately 10:30 P.M., Terminello and the confidential informant returned to the licensed premises. At that time, Terminello entered into a conversation with Carl Bilotti on the subject of narcotics; however, Bilotti indicated that he was unable to procure cocaine at that time. Bilotti did state that he expected a delivery soon and that Terminello should wait a while. Nothing had transpired by 11:45 P.M. concerning the narcotics and Terminello and the confidential informant left the licensed premises. On August 14, 1981, at approximately 10:45 P.M., Terminello and the confidential informant went back to the licensed premises and upon entry took a seat at the bar where they were greeted by the cocktail waitress Sandra McQuire. Terminello asked McQuire if there were any "ludes" around, meaning methaqualone, and McQuire answered in the negative, but she did indicate that there was some "toot," meaning cocaine available for $70.00 a gram if Terminello was interested. Terminello advised McQuire that he was interested and removed $70.. 00 in U.S. currency from his wallet, wrapped it in a napkin and handed it to McQuire. She then stated that she would be back in a few moments. After several moments, McQuire signaled Terminello to walk over to the opposite side of the bar where she was fixing drinks. She then made a comment about the good quality of the "stuff." While Terminello was talking to McQuire, another employee, a dancer in the licensed premises identified as "Ivy" later shown to be one Julie Ann Schwartz, approached Terminello and handed him a plastic zip- lock bag containing white powder. She told Terminello "here is a present from Sandy." Terminello accepted the material. Schwartz then asked Terminello if she could "do a line," referring to the ingestion of cocaine. In view of the circumstances, Terminello did allow Schwartz to taste the cocaine. Schwartz did this by opening the packet in plain view at the bar area and placing her finger into the container and then tasting the substance that adhered to her finger. She then handed the plastic bag back to Terminello and said "you are going to enjoy this. That's good stuff." These matters transpired in the presence of McQuire. The white powder was subsequently analyzed and revealed to be cocaine. On August 22, 1981, at approximately 11:00 P.M., Terminello returned to the licensed premises. Upon entry to the licensed premises, Terminello was greeted by Carl Bilotti who appeared to be leaving the bar at that time. Bilotti told Terminello he could be back in about one hour if Terminello wanted to wait for purposes of purchasing cocaine. Terminello told him he would wait. Following his conversation with Bilotti, Terminello spoke with the cocktail waitress Sandra McQuire asking her if there was any "toot" around, meaning cocaine. McQuire indicated that there was and it would cost $70.00. Terminello followed McQuire into the hallway outside the ladies' room where he handed her a hundred dollar bill and she handed him a plastic wrapped package containing white powder. A few minutes later, Terminello was sitting at the bar when McQuire returned and laid $30.00 in U.S. currency before Terminello stating "thank you very much." This material in the plastic bag which had been provided to Terminello by McQuire was subsequently determined to be cocaine. Terminello was still in the bar area at around 12:30 A.M. on August 23, 1981, and entered into a conversation with the manager of the licensed premises identified a "Anne" later shown to be Anne R. Milotta, also known as Ann Bilotti, the sister of Carl Bilotti. Terminello told Milotta that he felt that her brother Carl Bilotti was inconsiderate in that Terminello had planned to purchase cocaine from Bilotti that night and Bilotti had not come back to the premises. Milotta agreed with Terminello and told him that he could sit in the manager's office with her to have a drink and to wait for her brother to return. Milotta and Terminello went to the manager's office. While in that office, ,Milotta answered the telephone, gave directions to employees, answered questions, was observed to have the keys to the office, and at times was seen tending bar. These managerial activities were further substantiated on a later date based upon Terminello's procurement of a copy of an application which Milotta had made with the City of Hialeah, Florida, for an identification card in which she had listed herself as the "owner-manager of the licensed premises." While in the office with Milotta, she told Terminello that it was too bad that her brother had not yet come back so that Terminello could purchase cocaine. Terminello, during this conversation, indicated to Milotta that he had purchased cocaine from Sandy McQuire, the cocktail waitress, and Milotta stated to Terminello "how 'bout turning me on to a line" and Terminello responded "OK." Terminello removed the cocaine he had received from McQuire and handed it to Milotta. She opened it and tapped out two one and one half inch long "lines" of cocaine on the desk in the office and handed the package back to Terminello. Terminello then watched Milotta ingest one of the lines through her nose using a plastic straw and he in turn simulated that activity. At around 1:15 A.M., on August 23, 1981, Terminello indicated to Milotta that, in view of the fact that Carl Bilotti was not going to appear, he would like to purchase another gram of cocaine to keep him supplied for the upcoming week. Milotta stated she would get McQuire and exited the office and called McQuire in, telling her that Terminello wanted to purchase another gram of cocaine. McQuire indicated that this would not be a problem and removed another packet similar to the first from a large plastic bag she kept on her person. This large bag appeared to have twenty (20) to thirty (30) similar type packets within it. Terminello removed a hundred dollar bill from his wallet and handed it to Milotta who in turn handed it to McQuire. McQuire then reached over Milotta and handed Terminello the packet. Shortly after this exchange, McQuire left the office and Milotta continued in general conversation both in the bar and office area until Terminello left the premises at approximately 1:50 A.M. The second package that McQuire gave to Terminello was subsequently determined to be cocaine. On August 28, 1981, at approximately 10:30 A.M., Terminello went back to the licensed premises to continue the investigation. Upon entering the licensed premises he spoke with Carl Bilotti asking if he had any "toot," meaning cocaine. Bilotti stated that he did and that it would be the same price as usual, $70.00. A few minutes later, Bilotti walked up to Terminello who was sitting at the bar and handed him a plastic zip-lock bag containing white powder and Terminello gave him $70.00 in U.S. currency in exchange. The substance which Terminello had purchased from Bilotti was subsequently determined to be cocaine. A few minutes after the exchange of cocaine and currency, Anne Milotta approached Terminello in the bar area and invited him into the manager's office for a drink. When they entered the office, Milotta told Terminello that she had seen the transaction involving the sale of cocaine between Terminello and her brother and wanted to make sure that Terminello was satisfied with the "product." The conversation continued while Milotta intended her managerial duties of making schedules, and answering the telephone. At approximately 11:00 P.M., Milotta asked Terminello if she could "do a line" of his cocaine, meaning use the material. She indicated that she knew "this coke was as good as all the coke that Carl gets." Terminello complied with her request by handing her the plastic zip-lock bag that he had purchased from Carl Bilotti. She again placed two (2) "lines" of the cocaine on the desk and on this occasion used a twenty dollar bill which had been rolled up as a tool to ingest the cocaine in her nose. Terminello simulated the use of cocaine in her presence. Terminello then left the office and exited the licensed premises. On September 4, 1981, at approximately 9:30 P.M., Terminello went back to the licensed premises. When he entered the premises he spoke with Anne Milotta asking her if her brother had "any shit to sell," referring to cocaine. Milotta invited Terminello into her office indicating that her brother did not have cocaine for sale but that she did. Terminello told her that he wanted one (1) gram. She left the office and returned a few minutes later, at around 9:50 P.M., handing Terminello a piece of plastic wrapping containing white powder. Terminello handed her 580.00 in U.S. currency and she returned $5.00, stating that her price was $75.00. Subsequent analysis of the material which he had received from Milotta revealed the presence of cocaine. While in the office area, Milotta continued to perform managerial duties. As Terminello was preparing to leave the licensed premises on this date, Milotta approached him and gave him an additional $5.00 in U.S. currency stating that she had made a mistake and that a gram should only be $70.00 and that she did not want Terminello to think that she was "ripping him off." This discussion of money referred to the purchase of cocaine. On September 9, 1981, at around 10:10 P.M., Terminello went back to the licensed premises. He took a seat at the bar and waited for the appearance of Carl Bilotti. Bilotti entered the licensed premises at around 10:25 P.M. and Terminello asked him if he was "holding any shit," referring to cocaine. Bilotti stated that he was and that it was the usual price of $70.00. Bilotti and Terminello then went to the manager's office. Bilotti left Terminello in that office, shortly thereafter and following this sequence, Terminello gave Bilotti $70.00 in U.S. currency while in the office in exchange for a white piece of paper folded in four parts which contained white, powder. The analysis of this white powder material revealed cocaine. Terminello and Bilotti stayed in the office for a few minutes discussing general topics and the possibility of a large narcotics purchase in the future. Bilotti told Terminello that he would be better off buying a quarter ounce of cocaine for $425.00 rather than one gram at a time for $70.00. Terminello then left the licensed premises at approximately 10:45 P.M. On September 20, 1901, at approximately 12:15 A.M., Terminello returned to the licensed premises. He undertook a conversation with Carl Bilotti while standing near the outside of the front door. After a short conversation, Bilotti indicated that he had cocaine for sale. A few minutes later while inside the licensed premises, Bilotti waved Terminello into the manager's office where he removed a quantity of white powder from a large plastic bag and placed a small quantity of white powder into a piece of paper on the desk. He then folded the piece of paper and handed it to Terminello who handed Bilotti 570.00 in U.S. currency. This white powder was subsequently determined to be cocaine. At approximately 1:00 A.M., Terminello left the licensed premises. On September 26, 1981, at approximately 12:20 A.M., Terminello, while in the licensed premises, entered into a discussion with Carl Bilotti about a narcotics transaction involving the purchase of cocaine. Bilotti indicated that two (2) ounces of cocaine could be purchased for $1,700.00 an ounce and he stated that the safest place for the transaction to occur would be in the office at the licensed premises. On September 29, 1981, at around 11:15 P.M., Terminello and Carl Bilotti, while in the office at the licensed premises, confirmed a future purchase of two (2) ounces of cocaine. Bilotti explained to Terminello the packaging and adulterating procedures to be used in connection with selling the cocaine. On October 2, 1981, at approximately 12:45 A.M., in the office of the licensed premises, Anne Milotta told Terminello that she was aware of the pending large transaction for the purchase of cocaine between Terminello and Carl Bilotti and that her understanding was that the purchase was to occur later that evening. She further stated that due to her brother's unreliability she would also guarantee that two (2) ounces of cocaine would be in the office by 7:00 P.M. on October 2, 1981. On October 2, 1981, a search was made of the licensed premises in connection with a warrant issued by the Dade County Circuit Court. The search warrant was read to Dorothy Bilotti, a principal in the beverage license. During the course of the search, Cathryne Edmondson, one of the dancer/employees was found in possession of marijuana. On December 2, 1981, Carl Bilotti entered a plea of guilty to five (5) counts of sale of cocaine and five (5) counts of possession of cocaine. He was subsequently adjudicated guilty of the sale of cocaine and adjudication was withheld on the counts of possession of cocaine. These matters were in connection with a court case in the Circuit Court, Dade County, Florida.
Findings Of Fact Based on the evidence presented at hearing, the following facts are determined: At all times material to the charges, Ronald Wayne Diamond and Susan Joyce Saiia owned and operated a partnership trading as Susan's Las Olas Seafood Market at 1404 E. Las Olas Boulevard, Fort Lauderdale, Florida ("the licensed premises") On the licensed premises, they sold alcoholic beverages under the authority of alcoholic beverage license No. 16-3029, Series 2-APS. On January 17 or 18, 1982,and on January 19, 1982, Broward County Sheriff's Department Detective Fernandez entered the licensed premises in an undercover capacity and negotiated with Respondent Ronald Diamond for the sale and delivery of cocaine and cannabis. Respondent Susan Saiia was present and aware of these negotiations, although she did not actively participate in them. On one of these occasions, she warned Respondent Diamond to be careful, that she had seen someone in the back alley who looked like he was wearing a recording device. On January 20, 1982, Respondent Diamond was arrested on charges of unlawful trafficking in cocaine and possessing cannabis in violation of Sections 893.135(1)(b) and 893.13(1)(e), Florida Statutes. He was taken to the licensed premises where a search warrant was executed and two ounces of marijuana were found in an office file cabinet. (Petitioner's Exhibit No. 2) On May 6, 1982, the Circuit Court of the Seventeenth Judicial Circuit, adjudging Respondent Diamond guilty of these felonies, sentenced him to fifteen years in prison and fined him $250,000 for trafficking in cocaine. He was sentenced to an additional five years for the possession of cannabis. (Petitioner's Exhibit No. 3)
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondents' alcoholic beverage license No. 16-3029, Series 2-APS, be revoked for multiple violations of the Beverage Law. DONE and ORDERED this 12th day of July, 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 12th day of July, 1983. COPIES FURNISHED: John A. Hoggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Maurice Graham, Esquire Suite 2 2161 E. Commercial Blvd. Ft. Lauderdale, Florida 33308 Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Wiley U. Pridgett, d/b/a Strip World Topless Entertainment, holds a Series 2-COP license to sell alcoholic beverages at 2201 South Orange Blossom Trail, Orlando. Petitioner has requested a new Series 2-COP license to operate at the same location. Petitioner has no specific plans for the use of her license. Her testimony established only that she ha a a close relationship with Wiley U. Pridgen and would look to him for guidance.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State of Florida, Division of Alcoholic Beverages and Tobacco, enter a final order denying the application of Cheryl Ann Nascimento for an alcoholic beverage license. DONE AND ENTERED this 25th day of March, 1981, in Tallahassee, Leon County, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1981. COPIES FURNISHED: H. Franklin Robbins, Jr., Esquire 112 South Lake Avenue Orlando, Florida 32801 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Should Respondent's alcoholic beverage license, number 61-00005, 2-COP be revoked, suspended or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: DABT is the division within the Department of Business and Professional Regulation charged with the responsibility of administering and enforcing the Beverage Law of the State of Florida. At all times material to this proceeding, Respondent held a series 2- COP alcoholic beverage license, number 61-00005, authorizing the Respondent to sell only beer and wine on the premises of East Side Tavern (Tavern), located on Cummer Road, 1 mile east of Highway 301, Lacoochee, Pasco County, Florida. Around 12:30 a.m. on May 16, 1994, Special Agents Ashley Murray and Keith B. Hamilton went to the Tavern in an undercover capacity. This undercover activity was initiated due to a request of the Pasco County Sheriff's Office (PCSO) concerning allegations of drugs sales on the premises of the Tavern. Agent Murray has been a sworn law enforcement officer for five and one- half years. Agent Murray completed a two-week basic Drug Enforcement Administration (DEA) drug school regarding the identification, sale and the manner of use of drugs. Agent Murray also completed a three-day undercover DEA school. During her five and one-half years as a sworn law enforcement officer, Agent Murray has been involved in at least 100 occasions where drugs were being sold or used. Agent Hamilton has been a law enforcement officer since 1981. During Agent Hamilton's tenure as a law enforcement officer he has been involved in numerous training classes regarding the identification, sale and manner of use of drugs, including courses taught by DEA. Agent Hamilton has been trained to recognize the scent of burning marijuana. Agent Hamilton has been in at least 70 different establishments where drugs, including marijuana, were being sold and used. As the agents approached the Tavern, they noticed a large number of people (100-150) standing in front of the Tavern and in a vacant lot across the road from the Tavern. Additionally, cars were parked along Cummer Road in front of the Tavern. The agents also testified that a "lot" of the people standing outside appeared to be "young". Upon entering the Tavern, the agents noticed that no one was checking identification at the door. The Tavern consists of two rooms divided by wall with a door between the two rooms. The bar is located in one room. The second room is a disco/dance area. Based on the description of the inside of the Tavern, a person behind the bar would not have clear view of all of the disco/dance area. On May 16, 1994, the Tavern was crowded with customers. Agent Murray saw what appeared to her to be a "lot of really young kids" in the crowd. Upon entering the Tavern on May 16, 1994, Agent Hamilton detected a scent in the air that resembled, based on his training and experience, the odor of burning marijuana. Agent Hamilton did not actually see anyone smoking marijuana inside the Tavern. Agent Murray also noticed, both on the inside of the Tavern in the dance floor area and outside the Tavern by the entrance, what appeared to her to be a hand-to-hand exchange between customers of what appeared to be money for something that she could not identify. As Agent Murray left the Tavern she noticed what appeared to her, based on experience and training, to be customers passing and maybe smoking marijuana. However, Agent Murray did not actually see the marijuana or the customers actually smoking marijuana. Agent Murray also noticed a customer with a closed fist going to another customer and placing the closed fist over an open palm and then the release of the closed fist. Based on her training and experience, this appeared to Agent Murray to be an exchange of crack cocaine between the customers. Agent Murray did not see or confirm that any crack cocaine was actually being exchanged. Upon reentering the Tavern, the agents were together at the bar and saw a black female customer place a large bottle of liquid on top of the bar close to where they were sitting. The customer ordered something from the bar and left with the bottle. Agent Murray testified that by observing the label on the bottle she was able to identify the liquid as scotch whiskey. Agent Hamilton testified that he observed the same black female with a bottle of "alcohol, distilled spirits" and further identified the liquid as a "bottle of gin". Neither Agent Murray nor Agent Hamilton testified that the bottle bore the manufacturer's insignia, name or trademark. Both agents were apparently close enough to the customer to be able to observe the label. Neither agent smelled or tasted the contents of the bottle. For reasons of their own, the agents did not seize the bottle. Agent Murray thought she saw the Respondent behind the bar on that day. Agent Hamilton referred to the person behind the bar that day as the clerk but did not identify the Respondent as being the clerk on May 16, 1994. On August 8, 1994, ten DABT agents and 20 deputies from the PCSO conducted a walk-through inspection (inspection) of the Tavern. The agents and deputies were dressed in such attire as to be visibly recognized as law enforcement officers. During the inspection on August 8, 1994, DABT Sergeant Allen Ray observed an individual inside the Tavern in possession of a cup of beer, which individual Sergeant Ray suspected of being under 21 years of age. Sergeant Ray testified that this person identified herself as Tamieka Ranell Shaw and that Shaw advised him she was under 21 years of age. Sergeant Ray then took Shaw outside and placed her in the custody of Agent Hamilton for processing. Agent Hamilton testified that Shaw advised him that she was 16 years of age. At this time, Shaw did not have a driver's license or any other type of identification in her possession that would verify her age or date of birth. Furthermore, Shaw was not identified by a family member or anyone else having personal knowledge of Shaw's age or date of birth. Neither Shaw nor anyone else having personal knowledge of Shaw's age testified at the hearing. Furthermore, DABT did not present any documentary evidence of Shaw's age at the hearing. DABT failed to prove that Shaw was under 21 years of age on August 8, 1994. There was no evidence that Respondent or any person working for Respondent had sold, given, served or permitted the beer to be served to Shaw. During the August 8, 1994, inspection, DABT Sergeant John Allen observed three individuals in the Tavern that he suspected of being under 21 years of age that were in possession of what Sergeant Allen considered to be an alcoholic beverage. Sergeant Allen escorted each of these individuals out of the Tavern separately. None of these individuals had a drivers license or any other type of identification to verify their age or date of birth. Sergeant Allen testified that each of the individuals identified themselves and admitted to being under the age of 21 years. However, one of the individuals managed to leave the premises before any other identification could be made. Sergeant Allen testified that Ronald Adair, one of the alleged underage customers referred to in Finding of Fact 15 above, was identified by his mother as being under 21 years of age in a telephone conversation with Sergeant Allen on August 8, 1994. However, neither Adair, his mother nor anyone else having personal knowledge of Adair's age was present at the hearing to testify as to Adair's age. Furthermore, DABT did not present any type of documentary evidence of Adair's age at the hearing. DABT failed to prove that Adair was under 21 years of age on August 8, 1994. The person identifying himself as Marlon Inmon, another of the alleged underage customers referred to Finding of Fact 15 above, was alleged to have been in possession of an alcoholic beverage inside the Tavern on August 8, 1994. Sergeant Allen testified that he talked to a relative of Inmon's over the telephone and that this relative identified Inmon and advised Sgt. Allen that Inmon was under 21 years of age. However, this person did not talk to or see the person claiming to be Inmon. Neither Inmon nor the person identifying Inmon over the telephone or anyone else with personal knowledge of Inmon's age testified at the hearing. Furthermore, DABT did not present any documentary evidence of Inmon's age at the hearing. DABT failed to prove that Inmon was under 21 years of age on August 8, 1994. The third alleged underage person referred to in Finding of Fact 15 above in possession of an alcoholic beverage on August 8, 1994, was never identified by anyone before he left the premises. Neither this person nor anyone else having personal knowledge of this person's age testified at the hearing as to this person's age. Furthermore, DABT did not present any documentary evidence as to this person's age. DABT has failed to prove that this person was under 21 years of age on August 8, 1994. During the walk-through inspection on August 8, 1994, DABT Special Agent Michael Freese seized a 1.75 liter of Seagrams gin, alcoholic beverage. The gin was in plain view on a table in the dance floor area. In attempting to seize the gin, Agent Freese had a confrontation with a customer who claimed the gin belonged to him. There was no evidence that the gin had been purchased on the premises. This gin is not the type of alcoholic beverage allowed to be possessed by the licensee or anyone else on the licensed premises of a licensee holding only a 2-COP alcoholic beverage license such as Respondent. The Respondent was present at the Tavern on August 8, 1994, and either directly observed, or was in such a position at the bar to have easily detected the presence of the unauthorized alcoholic beverage on the table. Also during the walk-through inspection on August 8, 1994, Agent Freese observed a small plastic bag containing a substance that resembled marijuana on the floor behind one of the speakers around the "DJ" booth. Agent Freese seized the bag and identified it as marijuana by sight and smell. A field test conducted by Agent Freese indicated that the substance was marijuana. However, Agent Freese testified that the field test may not be 100 percent accurate. No laboratory analysis was made of the substance suspected of being marijuana. DABT failed to prove that the substance was in fact marijuana. Likewise, DABT has failed to prove that Stewart was aware of alleged marijuana being present on the premises. During the walk-through inspection on August 8, 1994, Lieutenant Bruce Schmelter, PCSO, seized a loaded 22-caliber revolver that was protruding from beneath one of the speakers near the "DJ" booth. The revolver was turned over to DABT. However, DABT failed to prove that Stewart was aware of the revolver being present on the premises. After the walk-through inspection on August 8, 1994, Sergeant Allen gave Respondent official notice of the problems encountered during the inspection. On September 18, 1994, a second walk-through inspection (second inspection) was conducted at the Tavern by ten DABT agents and 25 PCSO deputies. The DABT agents and the deputies from the PCSO were dressed in such attire as to be visibly recognized as law enforcement officers. During the second inspection, agents Murray and Aikens advised Respondent that they intended to go behind the bar to secure that area. After advising Stewart of their intended action, there was a confrontation between Stewart and the agents wherein Stewart's daughter became involved. The agents became concerned because of the crowd and notified Sergeant Ray of the problem. Sergeant Ray advised Stewart of why they were there and that DABT agents had the authority to secure the area behind the bar. After this explanation, Respondent allowed Sergeant Ray and another DABT agent behind the bar without further incident. After the incident at the bar during the second inspection, Agents Murray and Aikens seized a bottle of Seagrams Extra Dry Gin, an alcoholic beverage, which they found on the floor against the wall in the area of the bar inside the Tavern. This gin is not the type of alcoholic beverage allowed to be possessed by the licensee or anyone else on or at the licensed premises of a licensee holding a 2-COP alcoholic beverage license such as Respondent. The Respondent was present in the Tavern on September 18, 1994, and either directly observed, or was in such a position as to have easily detected the presence of the unauthorized alcoholic beverage. During the second inspection, Agent Hamilton observed an individual in possession of a bottle of beer which individual he suspected of being under 21 years of age. Agent Hamilton testified that the individual was identified as Corey Anthony Owens, 20 years of age. Neither Owens nor anyone else having personal knowledge of Owens' age were present to testify at the hearing. Furthermore, DABT did not present any documentary evidence as to Owens' age. Agent Hamilton testified that Owens advised him that he had purchased the beer in the Tavern from a black male behind the bar. DABT presented no other evidence that the beer had been purchased in the Tavern. Although DABT has proven that Owens did have beer in his possession while in the Tavern on September 18, 1994, DABT failed to prove that Owens purchased or was served or given the beer in his possession on September 18, 1994, by Stewart or his servant, agent or employee. Furthermore, DABT failed to prove that Owens was under 21 years of age on September 18, 1994. On December 7, 1994, Captain Bruce Ashley met with Stewart at Stewart's request to discuss the Administrative Action that had been served on Stewart. At Stewart's request, Captain Ashley marked an X by the first box on the Request For Hearing which states as follows: "I dispute issues of fact. (Please list which of the charges and counts in the Administrative Action you dispute and why)." Also at Stewart's request, Captain Ashley wrote the following: "There are facts and issues that are not true that need to be discussed. I have documents and facts to bring out about this matter." (Emphasis supplied) Below this statement Captain Ashley wrote "Written On Behalf Of Licensee By" and signed his name. Below the above underlined statement there was an X with Isaiah Stewart's signature. On December 8, 1994, Captain Ashley wrote a memorandum setting forth what Captain Ashley considered to be the conversation between he and Stewart on December 7, 1994. However, because of the circumstances under which this conversation with Respondent occurred and the conflict between the statement signed by Respondent and Captain Ashley's memorandum, the memorandum is somewhat suspect and a cause for concern, and thereby lacks credibility. DABT's exhibit 4 consist of computer records from the PCSO listing the calls that the PCSO responded to around the Tavern from May 12, 1993 through June 29, 1994. Using these computer records DABT summarized the type of calls and the total number of each type of call received between February, 1994 and June 29, 1994. This summary shows a total of 69 calls of various types responded to by the PCSO during the period covered by the summary. Of the 69 calls listed in the summary, 22 were calls to backup units which apparently were backup for some of the other 47 calls. Ten calls were to assist a sick person. The balance of the calls were as follows: 2-affray/incite or encourage riot; 1- special patrol request; 1-juvenile problem; 3-miscellaneous incident; 2-field interrogation report; 4-shooting in area; 1-battery (simple); 4- disturbance(noise); 1-accident traffic; 1-illegal parking; 1-suspicious person; 3-narcotics violation; 1-throwing a deadly missile; 1-obstructing police without violence; 1-warrant arrest; 1-robbery, strong arm; 1-simple assault; 2-traffic warning; 1-aggravated assault; 1-weapons; 1-shooting into occupied dwelling; 1- battery on officer and 2-special detail. It is clear from the PCSO computer printout that the whole area around Cummer Road, not just the area around the Tavern, kept the PCSO busy responding to calls during the period in question. DABT presented no evidence as to the legitimacy of the call or if the call involved the activity of the Tavern's customers on the premises of the Tavern or the activity of someone else in the vicinity of the Tavern or what action was required upon the PCSO responding to the call. DABT failed to prove that Respondent kept or maintained a premises which was resorted to by persons who use or sell illegal drugs. DABT failed to prove that between the dates of February 1994, and September 1994, the Respondent maintained a public nuisance at his licensed premises.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law and having reviewed the penalty guidelines set forth in Rule 61A-2.022, Florida Administrative Code, it is recommended that a final order be entered finding Respondent guilty of the allegations contained in Counts 5 and 8 of the Administrative Action and for this violation that DABT assess an administrative fine in the amount of $1,000 against Respondent. It is further recommended that DABT dismiss Counts 1, 2, 3, 4, 6, 7, 9, 10 and 11 of the Administrative Action. RECOMMENDED this day 27th of September, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, 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 27th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1482 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner in this case. Petitioner's Proposed Findings of Fact. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1-3(2); 4-5(3); 6(6); 7(7); 8(8); 9(9); 10(5); 11(10); 12(4,10-11); 13(11); 14(12); 15(13); 17-18(15); 21-22(19); 24-25(21); 26(22); 27(23); 28-29(24); 30(25); 32(27); and 34(28). Proposed finding of fact 16 is adopted in Finding of Fact 14, except that portion regarding the age of Shaw, which is rejected. Proposed finding of fact 19 is adopted in Finding of Fact 16, except that portion regarding the age of Adair, which is rejected. Proposed finding of fact 20 is adopted in Finding of Fact 17, except that portion regarding the age of Inmon, which is rejected. Proposed finding of Fact 23 is adopted in Finding of Fact 19, except that the field test did not absolutely prove that the substance was in fact marijuana. Proposed finding of fact 31 is adopted in Finding of Fact 26, except that portion regarding the age of Owens and that Owens purchased the beer in the Tavern, which is rejected. Proposed finding of fact 33 is rejected as not being supported by competent, substantial evidence in the record. The Respondent elected not file any proposed findings of fact. COPIES FURNISHED: John J. Harris, Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda L. Goodgame, Esquire General Counsel Department of Business Professional Regulations Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard A. Grumberg, Esquire Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Isaiah Stewart, Pro se Post Office Box 429 Lacoochie Florida 33537
The Issue The issue in this case is whether the alcoholic beverage license of Harold Haffner, Jr., and Catherine B. Haffner, d/b/a Bay's Produce Market (Respondents) should be disciplined by the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Petitioner), based on actions they are alleged to have taken on October 18, 1988, in the sale of a can of beer to a person under 21 years of age.
Findings Of Fact At all times material hereto, Respondents have held an alcoholic beverage license issued by the Petitioner, number 39-02010-1-APS, and have done business at 6609 South Westshore Boulevard, Tampa, Florida, as Bay's Produce Market. On October 18, 1988, Respondent Catherine B. Haffner sold a can of beer to James L. Leschner, whose birthdate is November 21, 1970. At the time of this sale, Leschner was 17 years of age. At the time of this sale, Respondent Catherine B. Haffner testified that Bay's Produce Market was very busy since it was around noon. She did not check Leschner's identification, or even ask him his age. She testified that he looked 25 years old, and she simply assumed he was at least 21 years of age because he was approximately 6 feet 3 inches tall. The Petitioner's investigator, William P. Fisher, disputed Respondent's testimony. The store was not very busy, and only three customers were in the store, including Leschner, Fisher, and one other investigator. Based upon the demeanor of the witnesses, the testimony of Fisher is found to be more credible than that of Respondent. It is, therefore, found that Bay's Produce Market was not filled with many lunchtime customers, but rather, only Leschner and two other people were in the store at the time Respondent sold him a can of beer. Leschner did not show Respondent any false identification, or misrepresent his age. He was simply not asked for any identification, or about his age.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order suspending Respondents' license to sell alcoholic beverages for a period of thirty days, and imposing an administrative fine of $500. DONE AND ENTERED this 28th day of August, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1989. APPENDIX (DOAH CASE NO. 89-0804) Rulings on the Petitioner's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-3. Adopted in Finding 2. 4. Adopted in Finding 3. The Respondents did not file Proposed Findings of Fact. COPIES FURNISHED: John B. Fretwell, Esquire The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Robert H. Carlton, Esquire 1101 East Jackson Street Tampa, Florida 33602 Steven Royal, Esquire 209 North Brush Street Tampa, Florida 33602 Joseph A. Sole, Esquire The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Stephen R. MacNamara, Secretary Dept. of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007
Findings Of Fact Respondent is a Florida corporation. Gary Popkin is its sole corporate officer and stockholder. He holds the positions of President, Vice-President, Secretary and Treasurer. Respondent is now, and has been at all times material hereto, the holder of alcoholic beverage license #16- 03 032 2-COP issued by Petitioner. The licensed business is a bar that operates under the name of Lynda's Lounge. It is located at 8007-8009 Kimberly Boulevard in North Lauderdale, Florida. C.G. is a paid confidential informant. The North Lauderdale Police Department is among the law enforcement agencies for whom he works. On the afternoon of July 19, 1989, C.G. entered Lynda's Lounge, sat down and ordered a drink. While in the bar, C.G. was approached by Vinnie Lavarello, another of the bar's patrons. They were joined by Popkin. A conversation ensued. Popkin advised C.G. that he had some "good pot" and asked him if he wanted to buy some. He suggested that C.G. act quickly because he only had a little left. Both Popkin and Lavarello told C.G. that there was no need to worry because everyone in the bar "smoked pot" and was "cool." C.G. informed Popkin that he would "let him know." He thereupon left the bar and paged Detective Gary Harris of the North Lauderdale Police Department. Harris instructed C.G. to meet him at the North Lauderdale police station, which is a short distance from the bar. In accordance with Harris' instructions, C.G. went to the police station. He provided Harris with a description of Lavarello and Popkin, as well as their names. Harris searched C.G. and C.G.'s car for drugs and found none. He then gave C.G. $20.00 with which to purchase marijuana from Popkin. C.G. drove back to the bar. He was followed by Harris in another vehicle. They arrived at the bar at approximately 5:55 p.m.. C.G. entered the bar, while Harris waited outside. Once in the bar, C.G. walked up to Lavarello and indicated that he was interested in consummating the deal they had discussed earlier that day. Popkin apparently overheard C.G. He gave C.G. a package containing marijuana (cannabis). In return, C.G. gave Popkin the $20.00 he had been given by Harris. Following this transaction, there was a discussion concerning the possibility of C.G. purchasing additional drugs, including cocaine, from Popkin. Popkin quoted C.G. prices for various quantities of the drug and encouraged C.G. to come back and do business with him. At approximately 6:10 p.m., fifteen minutes after he entered the bar, C.G. left and drove in his vehicle to a prearranged location to meet Harris. Harris observed C.G. leave the bar and followed C.G. in his vehicle to their predetermined meeting place. After they both exited their vehicles, C.G. handed Harris the marijuana he had purchased from Popkin and told Harris what had happened in the bar. Harris field tested the marijuana. It tested positive. Harris placed the marijuana in a sealed bag and forwarded it to the crime laboratory of the Broward Sheriff's Office. Tests performed at the crime laboratory reflected that the substance that Popkin had sold C.G. was indeed marijuana. After consulting with Harris regarding the matter, C.G. returned to Lynda's Lounge on July 21, 1989, to make arrangements to purchase an ounce of cocaine. As he had been told to do by Popkin, C.G. discussed the matter with Lavarello. C.G. and Lavarello agreed on a purchase price. C.G. then left the bar to get money to make the purchase. After leaving the bar, C.G. went to the North Lauderdale police station and met with Harris. Harris searched C.G. and C.G.'s vehicle for drugs and found none. He then gave C.G. money with which to purchase an ounce of cocaine from Lavarello. Although C.G. and Lavarello had agreed upon a purchase price of $700.00, because it is a common practice of drug dealers to raise their prices immediately before the transaction is to take place, Harris gave C.G. $800.00 in the event Lavarello raised his price. C.G. then drove back to the bar, followed by Harris in another vehicle. After parking, C.G. exited his vehicle and entered the bar. Harris remained outside, across the street from the bar. C.G. approached Lavarello. It was too noisy inside the bar to talk so C.G. and Lavarello left and continued their conversation in C.G.'s vehicle, which was parked in the lot in front of the bar. Lavarello indicated to C.G. that he did not have the cocaine with him and needed to pick it up, but that C.G. would have to give him the entire purchase price before he did so. C.G. then excused himself. He thereupon contacted Harris and they both returned to the North Lauderdale police station. Harris did not want C.G. to give Lavarello that much money and have to wait for the cocaine to be delivered. He therefore decided to have C.G. purchase an eighth of an ounce, instead of an ounce, of cocaine from Lavarello, the purchase price of which, C.G. had been told, was $150.00. Accordingly, Harris took back $600.00 of the $800.00 he had given C.G. earlier that day. Harris then again searched C.G. for drugs and found none. C.G. thereupon headed directly back to the bar, with Harris following behind him in another vehicle. C.G. met with Lavarello at the bar. He told Lavarello that he wanted to purchase a eighth of an ounce, rather than an ounce, of cocaine. He gave Lavarello $200.00 and made arrangements to meet Lavarello later that day at the bar to receive delivery of the cocaine he had purchased. At Lavarello's request, C.G. drove Lavarello to Lavarello's girlfriend's house. C.G. then returned to the North Lauderdale police station. At all times during this journey, C.G. and his vehicle were under Harris' observation. At the police station, Harris again searched C.G. for contraband and found none. Later that day, C.G. and Harris went back to Lynda's Lounge in separate vehicles. Harris remained outside, as C.G. exited his vehicle and headed towards the front door of the bar, where he encountered Lavarello. C.G. and Lavarello then proceeded to C.G.'s vehicle, where Lavarello handed C.G. a package containing cocaine. Upon receiving the package, C.G. complained that it appeared that he had received less cocaine than he had been promised. Lavarello admitted that he had given his girlfriend some of the cocaine that originally had been intended for C.G. To compensate for the missing cocaine, Lavarello gave C.G. a package containing marijuana. In addition to the cocaine and marijuana, Lavarello also gave C.G. a $20.00 bill and a gas receipt reflecting the amount of money he had paid for gasoline during his trip to pick up the cocaine. Following this transaction, C.G. and Lavarello went their separate ways. As he had done after the buy he had made on July 19, 1989, C.G. met Harris at a prearranged location. He handed Harris everything that Lavarello had given him. Harris searched C.G. and found no additional contraband. Harris then field tested both the cocaine and the marijuana. The test results were positive. After conducting these field tests, Harris placed the cocaine and marijuana in a sealed bag and forwarded the bag to the crime laboratory of the Broward Sheriff's Office. Tests performed at the crime laboratory reflected that the substances in question were indeed cocaine and marijuana. Popkin and Lavarello were subsequently arrested by Harris. 1/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order finding Respondent guilty of the violations of Section 561.29(1), Florida Statutes, charged in the January 9, 1990, Notice to Show Cause and revoking alcoholic beverage license #16-03032 2- COP held by Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this & day of October, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675
The Issue Whether Respondent committed the violations alleged in the Emergency Order of Suspension and Notice to Show Cause and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating licensed alcoholic beverage establishments. At all times material to the allegations in this case, the Respondent, Marsbar of Kendall, Inc., doing business as Marsbar, held alcoholic beverage license number 23-00706 which is a series 4-COP license. At all times material to the allegations in this case, Marsbar was located at 8505 Mills Drive, R-2, in Miami, Dade County, Florida. At all times material to the allegations in this case, the following persons were officers and/or shareholders of the Respondent corporation: Mark Vasu, Shannon Miller, David Lageschulte, Gerald Joe Delaney, and Henry Long. Others having a direct or indirect interest in the company are: Bonnie M. Vasu, Carole W. Vasu, Paul Lynch, Jonathan G. Delaney, and Douglas Long. Prior to the issuance of the Emergency Order of Suspension which is at issue in this proceeding, the Department conducted an investigation of alleged acts of recurring, illegal narcotic activity on the licensed premises. In furtherance of such investigation, Special Agent Bartelt, Detective Fernandez, and Detective Robertson entered the licensed premises in an undercover capacity for the purpose of purchasing illegal substances. In this regard Special Agent Bartelt observed the two detectives as they attempted to acquire illegal substances from persons within the licensed premises. The investigation at Marsbar began on April 5, 1997, and was concluded on June 12, 1997. In total, the detectives made eight purchases of a substance which was later tested and determined to contain cocaine. Respondent did not object to, nor dispute the accuracy of, the lab reports received into evidence which confirmed the substances contained cocaine. As to the purchase which occurred on April 5, 1997, Detective Robertson approached a male bathroom attendant and represented to him that "Anthony" had sent him. He then asked the attendant for drugs and, by implication in the language of such transactions, requested cocaine. The attendant referred him to a patron of the bar who he described as a man in a black shirt with a black cap. Detective Robertson attempted to locate the patron as he had been described and even asked a security person if he had seen the male. When the security person denied having seen any drug dealers, Detective Robertson went back to the attendant for clarification who then pointed out an individual known in this record as "Juan." After transferring $20.00 to Juan, Detective Robertson received a small plastic bag containing less than one-half gram of cocaine. Upon receipt of the bag, Detective Robertson held the bag at approximately waist level and "flicked" it to verify the amount of the contents. This was done in an inconspicuous manner and simulated the procedure the detective felt was used by drug purchasers to examine the amount of the substance being procured. Although this transaction took place eight or ten feet from a bartender, there is no evidence that the transaction was witnessed by any person other than those participating in the buy. On April 19, 1997, Detective Fernandez went to the female restroom attendant and asked for drugs. After being advised to return later, Detective Fernandez observed an unknown male hand the attendant a plastic bag. In exchange for $25.00, the attendant then delivered a plastic bag containing approximately one-half gram of cocaine to Detective Fernandez. Although Detective Fernandez observed a bartender enter and exit the restroom during the events described in this paragraph, there is no evidence that the bartender observed any or part of the transactions which took place. On May 8, 1997, or the early morning of May 9, 1997, Detective Robertson again approached the male bathroom attendant at Marsbar and requested drugs. On this occasion the attendant, in exchange for $20.00, sold the detective approximately one-half gram of cocaine in the men's restroom. Although there were other patrons of the bar within the restroom, there is no evidence that any of them witnessed the transaction. On May 9, 1997, Detective Fernandez also sought to purchase drugs through the female restroom attendant. Although there were numerous patrons entering and exiting the facility, there is no evidence that anyone observed Detective Fernandez exchange $25.00 for approximately one-half gram of cocaine which was delivered in a small plastic bag. On May 16, 1997, Detective Fernandez purchased two bags of cocaine for $30.00 each from the female restroom attendant following the same procedure described above. Again, there is no evidence that anyone in or near the restroom observed the transactions. Detectives Fernandez and Robertson went to Marsbar again on May 30, 1997 for the purpose of purchasing illegal drugs. Using the same methods described above, Detective Fernandez was unable to purchase cocaine on this date. Detective Robertson, however, after beginning a conversation inside Marsbar, was able to purchase cocaine in the parking lot outside the club. This transaction resulted from contact made with a club patron known in the record as "Alex." This individual and the female restroom attendant introduced Detective Robertson to another patron known in this record as "Al" who later delivered the cocaine in the parking lot. Another male, "Manolito" in this record, approached Al and demanded cocaine he had allegedly been sold but had not received. Conversation regarding the pending sales took place in the licensed club, but it is unknown whether any employee of Marsbar heard the nature of the transactions discussed. A presumably drunken outburst from one bar patron suggests he understood a drug transaction was being discussed. It is undisputed that the actual exchange took place off the licensed premises. Finally, on June 12, 1997, Detective Fernandez returned to Marsbar and for $30.00 was able to purchase approximately one- half gram of cocaine. This purchase, like the others by Detective Fernandez, was through the female restroom attendant and occurred in or near the restroom facility. There is no evidence anyone observed the transaction. At all times material to the allegations of this case, Marsbar was a popular club which was well attended on the nights of this investigation. The audio system for the club, though especially dominating on the dance floor, distributed music throughout the licensed premises. As to the lighting system for the club, at all times material to this investigation, it would have been set at its lowest levels of illumination throughout the licensed premises. Consequently, only the restrooms would have been well lit. At all times material to the allegations of this case, the restroom attendants were not employees of Marsbar or its management company but were contract personnel through a third party valet service operated by David Cook. Marsbar paid Cook to provide restroom attendants. This contract was terminated on June 13, 1997, when Respondent learned of the attendants' alleged involvement in the illegal transactions described above. Further, Marsbar notified Cook of its intention to assist in the prosecution of such individuals. Marsbar is managed by a company known as Chameleon Concepts. In order to effectively identify and minimize potential losses for Marsbar, Chameleon Concepts contracted with a company whose purpose was to audit operations to ensure the overall integrity of the business operation. This auditor, a forensic fraud examiner, was to identify losses or potential losses due to fraud, embezzlement, policy or procedure violations, or other improprieties. Thus, effective October 1, 1996, Marsbar was voluntarily being reviewed by an independent company for potential improprieties. The auditor for the company, John Capizzi, found no violations of policy, alcoholic beverage rules, or regulations. Prior to the investigation of this case, Marsbar employees have been required to participate in responsible vendor programs. Marsbar management routinely conducts meetings wherein responsible vendor practices are discussed. Marsbar and Chameleon Concepts have developed written employee handbooks and policies which specifically admonish employees regarding illegal substances on the licensed premises. Marsbar employees and managers are instructed to advise the management of any suspected illegal substances on the licensed premises. In the past, Marsbar has participated in campaigns designed to retain false identification used by suspected underage drinkers to gain entrance to licensed premises. The testimony of Mr. Vasu, regarding efforts of the company to comply with all rules or regulations of the Department, has been deemed credible and persuasive regarding Marsbar's position on illegal drug transactions. Management would not condone or allow illegal drug sales if they were known to it. None of the officers or shareholders of Marsbar were aware of the illegal drug transactions occurring on the licensed premises. Cocaine is a controlled substance, the sale of which is prohibited by Florida law. None of the purchases described herein were of such a nature or were so conspicuously transacted that a reasonable person would have known illegal sales were taking place. None of the patrons of the club who testified for Respondent were aware that illegal drug sales took place within the licensed premises. Neither of the detectives making the purchases acted in a flagrant or open manner. Moreover, neither of the detectives attempted to verify whether or not bartenders, security guards, or managers employed by Marsbar were aware of the restroom attendants' illegal activities. In addition to selling illegal drugs, the restroom attendants handed out towels to club patrons and offered for sale personal toiletry items at tables maintained within the restroom. For a club patron to have money to purchase such items or tip the attendant would be reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order dismissing the Emergency Order of Suspension. DONE AND ENTERED this 23rd day of July, 1997, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July 1997. COPIES FURNISHED: Miguel Oxamendi, Senior Attorney Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Louis J. Terminello, Esquire Chadroff, Terminello & Terminello 2700 Southwest 37th Avenue Miami, Florida 33133-2728 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact On January 10, 1981, Beverage Officer P. M. Roberts entered the licensed premises of Perrine Pub to Investigate alleged drug violations. He engaged In a conversation with the bartender, Angela Maria Dickens, an employee of the licensee. Dickens subsequently offered to sell Roberts methaqualone (quaaludes). Roberts accepted and ordered the tablets for which he paid Dickens 25 dollars. Dickens obtained the tablets from a storage point behind the bar and delivered them openly to Roberts by placing them on the bar. On January 14, 1981, Beverage Officer Roberts returned to the licensed premises of Perrine Pub accompanied by Beverage Officer R. Jones. After engaging in a conversation concerning drugs, the officers each purchased methaqualone (quaaludes) from Dickens. The tablets were delivered openly from behind the bar, with Roberts purchasing ten tablets and Jones purchasing five. Roberts also purchased one gram of cocaine from Dickens on January 14, 1981. A third person, later identified as Lawrence Donovan, was involved in this transaction. Dickens gave Donovan four 20 dollar bills after receiving four 20 dollar bills from Roberts. Donovan then left the bar, subsequently returning with a package he gave to Dickens. She then delivered the gram of cocaine to Roberts. On January 16, 1981, Beverage Officers Roberts end Jones returned to the licensed premises of Perrine Pub. The officers attempted to purchase drugs from Dickens, who was at the door collecting cover charges. Dickens referred the officers to Marta Horstein who was on duty as the bartender. Jones purchased four methaqualone tablets (quaaludes) from Horstein for ten dollars. Jones gave Dickens one of these methaqualone tablets, which she consumed on the premises. On January 29, 1981, Beverage Officer O. Sams and P. Roberts arrived at the licensed premises to serve an Emergency Order of Suspension. They arrested Marta Horstein as she arrived by automobile. She was apprehended outside the premises and ordered inside by the officers where they searched her incidental to the arrest. The search of her purse revealed substances which she admitted were cocaine and hashish. Respondent Lash, Inc., d/b/a Perrine Pub, holds beverage license Number 23-0898, Series 2-COP. Richard Breeder is the sole stockholder of this corporation, which he actively manages. He has been the owner since 1976, and has not previously been charged with any beverage law violations. Breeder has an announced policy against the sale or use of drugs on the premises, and has fired employees for such use.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violations as alleged in Counts one through five of the Notice to Show Cause. It is further RECOMMENDED that the charges contained in Counts six through eight be dismissed. It is further RECOMMENDED that Respondent's Beverage License No. 23-0898, Series 2-COP be suspended for a period of thirty (30) days. DONE AND ENTERED this 19th day of May, 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1981.
Findings Of Fact Respondent Lois Davis, who does business under the name of The Cotton Club, holds License No. 60-00245, a Series 2-COP license issued by petitioner authorizing her to sell beer and wine for consumption on the licensed premises, which are located at 233 Southwest Fifth Street, Belle Glade, Florida. At one time Ms. Davis held License No. 60-576 which authorized sale of hard liquor as well as wine and beer for consumption on the premises of The Cotton Club. On January 25, 1980, as a result of foreclosure proceedings against respondent's landlords, an order was entered directing that "all right, title and interest to Alcoholic Beverage License 60-576" be conveyed to Mr. and Mrs. Robert Daniel. Robert Daniel, et ux. v. Gilbert Adams, et al. v. Lois Davis, No. 78-4667 CA (L) 01 G (Fla. 17th Cir.). At the time respondent applied for her current license, shortly before the previous license expired, she asked that the latter be extended so that she could sell off her stock of hard or spirituous liquors. Petitioner's Lieutenant Little explained that the matter was before a court but agreed to approach the judge. In September of 1980, L. Dell Grieve, a six-year veteran of the Belle Glade Police Department, visited The Cotton Club, saw liquor in a storeroom, and told the bartender that it should be removed. The bartender protested that it was all right to store the liquor while something was being worked out about the license, or words to that effect. Beverage Officers Ramey and Rabie accompanied Officer Grieve on November 15, 1980, on a visit to The Cotton Club, where they found Andre Lavince Moore, respondent's son, tending bar. In the storeroom, they found numerous bottles of spirituous liquors which they confiscated. Petitioner's Exhibit No. Wine and beer were stored in a separate place in the same storeroom. At no time after she lost License No. 60-576 did respondent or her agents or employees sell any alcoholic beverages other than wine or beer at The Cotton Club, or have any intention of doing so without petitioner's permission.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint. DONE AND ENTERED this 14th day of May, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II 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 14th day of May, 1981. COPIES FURNISHED: Daniel C. Brown, Esquire Lt. J. E. Little 725 South Bronough Street Post Office Drawer 2750 Tallahassee, Florida 32301 West Palm Beach, FL 33402 Lois Davis The Cotton Club 233 Southwest Fifth Street Belle Glade, Florida
