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
Findings Of Fact At all times material hereto Barnell and Louise Evans held beverage license No. 62-01451-2-COP for premises located at 1313 North Greenwood Avenue, Clearwater, Florida. They have held this beverage license since 1980. Following receipt of complaints regarding the sale and use of controlled substances, principally marijuana and cocaine, on the licensed premises, an undercover investigation of Foxy's Den was initiated. Keith B. Hamilton, Department of Law Enforcement (DLE) Investigator, visited Foxy's Den the evening of February 28, 1985, observed patrons smoking marijuana, purchased a $5.00 packet from a patron in the lounge of what was later tested and found to be marijuana, purchased paper to roll marijuana cigarettes from the barmaid after holding up the packet he had just purchased, and observed other transactions in what appeared to be the sale and use of marijuana on the licensed premises. Ira L. McQueen, another DLE Investigator, visited the licensed premises during the evening hours of March 21, 26, and 28 April 9, 10, 16, 18, 24, and 29 May 6, 9, 15, 21, and 22: June 20, 25, and 26: July 1, 8, 18, 23, and 29, 1985. During each of these visits he observed one or more of the following: Patrons smoking marijuana in plain view in the bar area patrons selling marijuana and cocaine to other patrons, including McQueen, in the bar area without much attempt at secrecy: bartenders and barmaids discussing the purchase of controlled substances with patrons and acting as intermediaries in those purchases packets of marijuana and money in exchange therefor passing between patrons in plain view of the bartender patrons obtaining change from the bartender, for example, a $20.00 bill, to purchase a nickel ($5.00) or dime ($10.00) packet of marijuana and McQueen being asked by the bartender if he, McQueen, was interested in buying marijuana or cocaine, and thereafter the bartender participating in the purchase of cocaine or marijuana by contributing money to the purchase and contacting the vendors. During these visits to the licensed premises by McQueen, he observed the licensee, Barnell Evans, on the premises only twice, but on each of these occasions McQueen observed the illegal use or sale of controlled substances on the premises which could also have been observed by Evans. Louise Evans has a full-time job at a local hospital and visits the licensed premises only for the purpose of taking the books and records home where she prepares the payroll, pays bills, and keeps the books for the business. Barnell Evans' principal occupation is construction. He is a stucco subcontractor and has maintained this business in Clearwater for a number of years. He has a good reputation in the building industry for honesty and integrity. Operation of Foxy's Den is a part-time occupation of Evans. Respondents had been told by a friend that controlled substances were being sold in the vicinity of the premises. One bartender and a barmaid were fired by Respondents for involvement with drugs on the premises after being warned that implication in drugs on the licensed premises would not be tolerated by the owners. One witness described Barnell Evans as naive regarding controlled substances. His appearance during these proceedings supports the conclusion that he is more naive regarding how to stop the use or sale of controlled substances than indifferent to such use or sale. The bartender on duty most of the evenings Foxy's Den was visited by McQueen, and who was involved in McQueen's purchases, is June Little, the nephew of Barnell Evans, who had hired Little because he was out of work, living with his mother, and "needed a job." Respondents have negotiated an agreement, Exhibit 4, with Curtis McCoy Security Agency for the latter to provide an unarmed uniform security guard on the licensed premises from 4:00 p.m. until midnight daily to detect and deter violations of the laws regarding sale and/or use of controlled substances on the licensed premises.
Findings Of Fact Introduction Respondent, Maximilliano N. Gonzales (respondent or Max) is the holder of alcoholic beverage license number 23-04935, Series 2-COP, issued by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). The license is used in conjunction with the operation of a lounge known as the Los Amigos Bar (bar or lounge) located at 5 Southwest 55th Avenue, Miami, Florida. Respondent and his companion, Olga, purchased the lounge in January, 1983 and have operated it since that time. Generally, either Max or Olga is on the premises supervising operations although Max was seriously injured by a customer about a year ago while breaking up an altercation and was forced to curtail his activities. Consequently, he has hired several other persons to assist him in managing the lounge during 1987. In the summer of 1987, the Division received a list of fifty Miami area establishments where the City of Miami police department suspected illicit drug transactions were taking place. RespondeV bar was one of these establishments. As a part of its investigation, the Division sent two undercover investigators (Garcia and Santana) to the lounge on August 21, 1987 to ascertain whether the police department's suspicions were well- founded. The two visited the bar on a recurring basis until October 8, 1987 when the Division issued an Emergency Order of Suspension which shut down the lounge and suspended respondent's license. That prompted the case sub judice. During their seven week investigation, Santana and Garcia observed a number of open and flagrant drug transactions and other illicit acts taking place on the licensed premises. In accordance with the parties' stipulation, these acts are summarized in chronological order in the findings below. For purposes of this order, Roberto was a patron of the bar, Carlos was its manager, and Loreno, Rosa, Lourdes, Eliza and Genny were barmaids. Further, all employees were on duty when the events herein occurred. The investigation While visiting the lounge on or about September 2, 1987, Santana and Garcia were approached by Lorena and Roberto and asked if they wished to purchase some cocaine. The investigators told Roberto that they would each be interested in purchasing a half gram of cocaine. Roberto then left the licensed premises and returned shortly thereafter and handed each investigator a half gram packet containing what appeared to be cocaine, a controlled substance. Garcia paid Roberto sixty dollars for both packets. The transaction took place "in front of the bar" and in the presence of Lorena and Rosa. The substance purchased was sent to a laboratory where an analysis confirmed it to be cocaine. On another visit to the lounge on or about September 4, 1987, Santana and Garcia were approached by Roberto concerning a purchase of cocaine. Garcia told Roberto he and Santana wished to order a half gram each. Roberto left the licensed premises and returned a few minutes later. He handed Garcia two small packets containing what appeared to be cocaine. Garcia then paid Roberto sixty dollars for both packets. The transaction took place in plain view while the investigators were seated at the bar and in the presence of Rosa. The substance purchased was subsequently sent to a laboratory where an analysis confirmed it to be cocaine. While at the premises on September 4, Santana and Garcia heard Roberto ask Rosa in a loud voice if she wanted to purchase some cocaine. A short (but loud) conversation between Roberto and Rosa then ensued while in the presence of approximately ten patrons and three other barmaids. Throughout the same evening, several patrons were observed purchasing what appeared to be cocaine from Roberto inside the licensed premises. On or about September 8, 1987, Santana and Garcia observed Roberto selling what appeared to be cocaine to numerous patrons inside the licensed premises. The investigators were later approached by Roberto who asked if they wished to purchase the drug. After Santana responded that he wished to buy some, Roberto handed him two packets containing what appeared to be cocaine in exchange for sixty dollars. The transaction took place in plain view at the bar and in the presence of Lorena, Lourdes and Eliza. In addition, Carlos was on the licensed premises when these activities occurred. The substance purchased by the investigators from Roberto was thereafter sent to the laboratory for analysis and was found to be cocaine. On or about September 10, 1987, while on the licensed premises, Santana and Garcia were approached on two occasions by Lourdes and Genny who solicited drinks from the officers. The investigators then went to the parking lot of the licensed premises, and were approached by Roberto concerning a purchase of cocaine. After Santana responded that he wished to buy some, Roberto handed Santana two small packets containing what appeared to be cocaine in exchange for fifty dollars. The substance was later laboratory analyzed and found to be cocaine. After entering the premises on or about September 14, 1987, the investigators were immediately approached by Lourdes who solicited the officers for an alcoholic beverage. They were later solicited in the same fashion by Genny. Later on, Santana met with Roberto and Rosa and asked if he could buy some cocaine. Santana handed Roberto sixty dollars and returned to his seat at the bar. Shortly thereafter, Roberto approached the investigators at the bar and handed Santana two small packages containing what appeared to be cocaine. The transaction took place in plain view at the bar and in the presence of Rosa and Genny. The substance purchased was laboratory analyzed and found to be cocaine. On or about September 17, 1987, the investigators returned to the lounge and met with Eliza concerning a purchase of cocaine. Eliza approached a patron who was seated at the other end of the bar and briefly conversed with him. Eliza returned to the investigators and told them that she could obtain cocaine for sixty dollars per gram, and that the cocaine would be delivered to the bar in approximately thirty minutes. Some thirty minutes later, Roberto entered the lounge and approached the investigators and asked if they desired to buy the drug. Santana told him he was interested in such a purchase and handed Roberto sixty dollars in exchange for two small packets containing what appeared to be cocaine. The packets were delivered on top of the bar counter in plain view and in the presence of Eliza and Lourdes. The substance purchased was laboratory analyzed and found to be cocaine. While at the lounge on September 17, Genny solicited two drinks from Santana. The two investigators also had extensive conversations with Eliza regarding the purchase of cocaine. On or about September 21, 1987, Santana and Garcia met with the manager, Carlos, concerning the purchase of cocaine from Roberto. During the conversation, Carlos was told several times that the investigators had purchased cocaine from Roberto inside the licensed premises. Carlos merely responded that "Roberto is a good guy, but he is not here." At no time did Carlos express disapproval of the cocaine transactions occurring within the licensed premises. On the same visit, barmaid Genny solicited two drinks from the investigators. The investigators also had conversations with Genny regarding the availability of cocaine on the licensed premises. However, they were informed by her that Roberto had not yet arrived. On or about September 22, 1987, Santana and Garcia visited the lounge and were approached by Eliza who asked whether they wished to purchase some cocaine. Eliza also informed them that Roberto had instructed her to call him on his beeper if any of his "regular customers" needed to purchase cocaine. She added that if Roberto could not come to the bar, she could sell them drugs obtained from her source who was present at the bar. After Santana and Garcia told her that they were interested in purchasing cocaine,, Eliza took a quarter from the business cash register and placed a telephone call on the lounge telephone. Eliza then returned and informed them that Roberto was on his way to the bar. A few minutes later, Roberto entered the lounge, approached the investigators, and handed Garcia two small packages containing what appeared to be cocaine. For this, Garcia gave Roberto fifty dollars. The transaction took place in plain view at the bar and in the presence of Eliza and Carlos. The substance purchased was sent to the laboratory where an analysis confirmed the substance to be cocaine. It is also noted that on this same visit, Genny solicited a drink from the investigators. On or about September 24, 1987, Santana and Garcia returned to the bar and were approached by Eliza who asked if they wished to purchase cocaine. She again informed them that Roberto had instructed her to call him on his beeper should the investigators wish to make a purchase. After Santana and Garcia placed an order for cocaine, Eliza went to the public telephone inside the licensed premises, and made a telephone call. After she returned she advised them that Roberto would be arriving soon. Approximately twenty minutes later, Roberto arrived at the licensed premises and told them that he had the cocaine that they had ordered. Roberto then gave Santana one gram of a substance that appeared to be cocaine in exchange for sixty dollars. He also handed Garcia one-half gram of a substance appearing to be cocaine in exchange for thirty dollars. The two transactions took place in plain view in the bar and in the presence of Eliza and Carlos. The substances purchased were laboratory analyzed and found to be cocaine. During this same visit, Genny solicited a drink from the investigators. On or about September 28, 1987, the two investigators returned to the lounge and were approached by Eliza and Genny who asked if they were interested in purchasing some cocaine. Eliza told them that Roberto was not in the bar but that she could call him on his beeper. Garcia requested that Eliza telephone Roberto and order a gram of cocaine. Eliza left for a few moments and was observed making a telephone call inside the licensed premises. A few minutes later, Roberto entered the lounge and handed Garcia two small packets containing what appeared to be cocaine. For this, Garcia gave Roberto fifty dollars. The transaction took place in plain view at the bar and in the presence of Eliza and Genny. The purchased substance was laboratory analyzed and found to be cocaine. On the same visit, Santana asked Roberto if he could purchase a gram of cocaine. Roberto said yes and told him the cocaine was stored in his car in the parking lot. The two then went to the car, where Roberto removed a package containing what appeared to be a half gram of cocaine, and gave it to Santana in exchange for twenty-five dollars. The substance was sent to the laboratory for analysis and was found to be cocaine. On October 1, 1987, Santana and Garcia again visited the lounge and were approached by Eliza who asked them if they wished to purchase cocaine. She also advised them that Roberto had not been in the lounge that day. Even so, she told them she could obtain the drug from another source. Garcia and Santana then placed orders for one and one-half grams of cocaine, respectively. After leaving for a few moments, Eliza returned and handed Santana and Garcia a brown paper napkin containing what appeared to be a gram and a half of cocaine. She was then paid seventy-five dollars by the investigators. The substance purchased was laboratory analyzed and found to be cocaine. On October 6, 1987, Santana and Garcia returned to the lounge and were asked by Eliza if they were interested in purchasing cocaine. Although she noted that Roberto had not been in the lounge that day, she told them she could obtain the drug from another source. Thereafter, Garcia and Santana each ordered one-half gram of cocaine from Eliza. After leaving the premises for a few minutes, Eliza returned and gave each investigator what appeared to be one- half gram of cocaine in exchange for fifty dollars. A laboratory analysis of the substance confirmed it was cocaine. When the above events occurred, there were no signs posted in the lounge warning patrons not to use drugs or to bring them on the premises. Further, the two investigators were never told by the manager or other employees to not use drugs, nor did they ever see a patron asked to leave because of having drugs in his possession. Max was seen in the lounge almost every day when the investigators were conducting their operation. However, there is no evidence that he personally saw a drug transaction take place, or that he was aware of any illicit activity. This is also the first occasion on which the licensed premises has been investigated. Mitigation At hearing Max and Olga appeared remorseful about this episode. They denied having knowledge of any drug transactions, and stated that around six months ago they had requested two Miami police officers to lend assistance in ridding their lounge of undesirable elements. They also told the police that "rocks" were being smoked in an adjacent parking lot. After the suspension of their license, the barmaids were fired. It is not clear whether Carlos was fired, but he only worked at the lounge for one or two months. A former manager who worked the first five months of 1987 testified he saw no drugs during his tenure, and that he was advised by Max to call the police if there were any problems. Because of his gunshot wounds, Max concedes it was necessary to hire other persons, perhaps too young, to oversee the lounge. He blames the incidents on those employees. If the license is reinstated, Max intends to shorten business hours and to have either himself or Olga on the premises at all times to ensure that no illicit activities occur. They also desire to sell the establishment, since they have invested their life savings in the business, and it represents their sole support.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of all charges in the Notice to Show Cause and that his License No. 230495, Series 2-COP, be REVOKED. DONE AND ORDERED this 2nd day of November, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4483 Petitioner: 1. Covered in finding of fact 1. 2. Covered in finding of fact 5. 3. Covered in finding of fact 6. 4. Covered in finding of fact 7. 5. Covered in finding of fact 8. 6. Covered in finding of fact 9. 7. Covered in finding of fact 10. 8. Covered in finding of fact 11. 9. Covered in finding of fact 11. 10. Covered in finding of fact 12. 11. Covered in finding of fact 13. 12. Covered in finding of fact 14. 13. Covered in finding of fact 15. 14. Covered in finding of fact 16. 15. Covered in finding of fact 17. 16. Covered in finding of fact 18. 17. Covered in finding of fact 19. 18. Covered in finding of fact 20. 19. Covered in finding of fact 3. 20. Covered in findings of fact 4 and 21. Respondent: Covered in findings of fact 1 and 3. Covered in findings of fact 1 and 3. Covered in finding of fact 21. Covered in finding of fact 21. 5.(a) Covered in finding of fact 2. Covered in finding of fact 3 to the extent the investigation was prompted by the City of Miami. The remainder is not supported by the evidence. Covered in finding of fact 22. Covered in finding of fact 21. Covered in finding of fact 22. Rejected since the evidence shows Lourdes and Rosa worked "many months" and "3-4 months," respectively. Covered in finding of fact 22. Covered in finding of fact 23. 6. Covered in finding of fact 23. COPIES FURNISHED: Thomas A. Klein, Esquire 725 South Bronough Street Tallahassee, Florida 32399-1020 Jose M. Herrera, Esquire Post Office Box 345118 Coral Gables, Florida 33114 Daniel Bosanko, Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Van B. Poole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire General Counsel The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue The issue posed for decision herein is whether or not the Respondent's alcoholic beverage license should be suspended, revoked, or otherwise disciplined based on the Petitioner's Notice to Show Cause filed herein dated April 13, 1983.
Findings Of Fact The Manhattan Restaurant holds alcoholic beverage license No. 68-442 SRX, Series 4-COP, issued in the name of Johnny W. Abner. The premises are located at 1409 Ninth Street, Sarasota, Sarasota County, Florida. Respondent's place of business is well known to the Intelligence Unit of the Sarasota Police Department as a place where sales of narcotics are conducted inside the premises. This information comes from confidential informants and intelligence reports submitted by officers working in the field. (Testimony of Keith Bernard Hamilton, State Beverage Officer; and James D. Fulton, Police Officer, City of Sarasota.) Detective James D. Fulton works primarily in this area of town and is familiar with crimes against persons in narcotics dealing in the area of the Respondent's tavern. Beverage Officer Keith Hamilton was assigned to an investigation of bars and restaurants in the area of Respondent's tavern during late March and early April, 1983. He is a qualified narcotics investigator and is familiar with the smell and appearance of marijuana and cocaine. During the evening of March 22, 1983, Officer Hamilton entered the licensed premises and made contact with the on-duty disc jockey, Joel, and inquired of Joel as to the availability of marijuana. Joel advised that he could obtain some for Officer Hamilton and, upon being given $10, left the area. Joel returned in approximately 10 minutes and handed Officer Hamilton a yellow manila envelope containing a vegetable substance together with $4 in change. The exchange was made openly without any attempt to hide. Officer Hamilton bagged, sealed, and receipted the substance given him by Joel, which was returned to the Sarasota district office and later submitted to the FDLE crime laboratory in Tampa for analysis. Analyst Brenda Norton determined that the substance purchased contained cannabis. At the hearing herein, Officer Hamilton identified the substance analyzed as that purchased by him from Joel. (Petitioner's Exhibit 1.) Joel, during testimony in the instant proceeding, admitted that he made the purchase from an unidentified patron from Bradenton, Florida. Officer Hamilton returned to the licensed premises of the Manhattan Restaurant on the evening of March 22, 1983, where he observed patrons smoking marijuana. Officer Hamilton observed the unique manner in which the cigarette was rolled and the manner in which the patrons held and inhaled the smoke. Based on the aroma of smoke that he smelled on that occasion, he concluded that it was marijuana that was being smoked by the patrons. Officer Hamilton next returned to the licensed premises of the Manhattan Restaurant on the evening of March 23, 1983, at approximately 9:30 p.m. Again, Officer Hamilton made contact with the on-duty disc jockey, Joel, and inquired as to the availability of marijuana. Joel advised that he did not have marijuana for sale at this time, but did advise that he had some good "coke" for sale. Officer Hamilton handed Joel $10, and Joel left and shortly returned with a clear capsule containing a substance which was later analyzed by the FDLE crime laboratory. Analyst Morton determined that the capsule analyzed contained cocaine. At the hearing, Officer Hamilton identified the substance analyzed as that purchased by him on the evening of March 23, 1983. (Petitioner's Exhibit 3.) Joel admitted to such sale and advised that he obtained the drug from a patron at the bar. While at the bar and during the purchase of the cocaine capsule from Joel on March 23, 1983, Officer Hamilton observed the licensee, Johnny Abner, at the bar area of the licensed premises on that occasion. Approximately one hour later, Officer Hamilton again made contact with Joel at the bar area at the Manhattan Restaurant and inquired as to the availability of marijuana. Joel advised that he had some available and told Officer Hamilton to wait for a moment. Joel returned and exchanged one manila envelope for $6. The transaction was carried out in an open manner, and the licensee, Abner, was observed at the time of the transaction at the bar area. The substance purchased by Officer Hamilton was bagged, sealed, receipted and returned to-the district office, which later submitted the substance to the FDLE crime laboratory in Tampa. Analyst Morton determined that the substance analyzed contained cannabis. (Petitioner's Exhibit 2.) Joel admitted to purchasing the marijuana for Officer Hamilton from another patron at the licensed premises whom he knew sold drugs. On that occasion, Officer Hamilton again observed patrons passing what, from his experience, were marijuana cigarettes. The patrons were located in the pool table area, and their actions were observable from the bar. On the afternoon of March 24, 1983, Officer Hamilton discussed with Joel trading liquor which Officer Hamilton represented was stolen from an ABC liquor truck to licensee Abner for marijuana. Joel advised that he would check with Abner as to whether he wanted to make a trade and asked Officer Hamilton to check back with him that evening. As requested, Officer Hamilton returned to the licensed premises of the Manhattan Restaurant at approximately 7:40 p.m. on the evening of March 24. Officer Hamilton made contact with Joel, who advised that Abner had agreed to the trade. Joel and Hamilton thereafter unloaded two cases of allegedly stolen liquor into the back of a red and white Ford van bearing license No. BP8575, which is registered to the licensee, Abner. The transfer was made in the parking lot of the licensed premises pursuant to what Joel represented were instructions from Abner to put it in the truck. Joel thereafter advised Officer Hamilton to check back with him in approximately one hour since licensee Abner had sent someone to get the marijuana. Officer Hamilton returned to the Manhattan Restaurant at approximately 10:00 p.m. and made contact with Joel. Joel advised that Abner had not yet sent anyone for the marijuana, and during the course of that discussion, Joel advised that Abner, when he buys such property, frequently tries these tactics to get the price as low as possible. Joel, however, advised that he would seek to the get the best price for him. During his stay, Officer Hamilton observed Joel and licensee Abner having a discussion and later an exchange of currency. Thereafter, Joel advised Officer Hamilton that Abner had given him the money, and Joel procured from a patron on the licensed premises approximately one-half ounce of a vegetable substance. Officer Hamilton bagged, sealed, and receipted the substance given him by Joel, returned it to the district office, which later submitted it to the FDLE crime laboratory in Tampa. The substance was analyzed by analyst Brenda Morton and was found to contain cannabis. (Petitioner's Exhibit 4.) At the time of the service of th& Emergency Order of Suspension, April 13, 1983, Officer Goodman found two 1.75 liter bottles of Popov Vodka in the bar area of the Manhattan Restaurant where other liquor for sale to customers was kept. These liquor bottles had previously been marked by Officer Ken Goodman as part of the quantity represented to be stolen and traded to Joel by Officer Hamilton in exchange for the marijuana. (Petitioner's Exhibits 6 and 7.) 2/ Officer Hamilton remarked to licensee Abner that he could "get him the same deal again." Jeffery Dawson, a bartender employed at the Manhattan Restaurant, has been given instructions by licensee Abner regarding certain prohibited acts, including the carrying of weapons and the use of drugs in the licensed premises. Dawson has also heard the disc jockey (D.J.) announce that no drugs or firearms were to be used or carried in the licensed premises. Patrice Rivers, a barmaid employed at the Manhattan Restaurant since approximately March, 1983, was told, at the time of her employment, by licensee Abner that there were to be no drugs or firearms carried or used by customers in the licensed premises. Employee Rivers has observed signs outside and inside the building prohibiting drug use in the licensed premises. Kenneth Davis, a part-time handyman employed at the Manhattan Restaurant, assisted licensee Abner in making liquor purchases from distributors and, on occasion, from the ABC Liquor Lounge in Sarasota, Florida. Davis has observed several employees using licensee Abner's van. Employee Davis has listened to both the disc jockey and licensee Abner use the P.A. system to announce that there were to be no drugs consumed in the licensed premises. Employee Davis heard the conversation between Joel and licensee Abner regarding the exchange of the allegedly stolen liquor for drugs. Initially, Joel asked licensee Abner for $80 to purchase the allegedly stolen liquor. Licensee Abner refused, whereupon Joel returned for the second time and requested $60 to purchase the allegedly stolen liquor. Again, licensee Abner refused and, the third time, Joel requested $40 to purchase the liquor. Again, licensee Abner refused and, at that time, Joel asked to borrow $40 until he received his paycheck the following week. Licensee Abner loaned Joel the $40, and the exchange was made between Officer Hamilton and Joel outside the licensed premises. Later that evening, Joel asked the bartender to keep two bottles of Popov Vodka behind the bar. According to Davis, Smirnoff is the vodka principally sold by the licensee. Davis refers to licensee Abner as "Buddy." Joel asked Buddy to use the van to take the liquor home that he had purchased from Officer Hamilton. James Bowen, a bartender employed full-time at the Manhattan Restaurant, has been so employed since the club's inception approximately eight years ago. As part of his duties, bartender Bowen stops fights, serves drinks, and attempts to prohibit the use of drugs inside the licensed premises. Bartender Bowen kept two bottles of Popov Vodka for Joel behind the bar area. Joel Harris, a disc jockey employed full-time at the Manhattan Restaurant since approximately 1980, is familiar with Officer Hamilton. Joel met Officer Hamilton approximately four weeks prior to April 13, 1983, when he was introduced by another friend. Officer Hamilton asked Joel if he could assist him in getting some "girl." 3/ Joel admits to purchasing marijuana and cocaine for Officer Hamilton and confidential informant Sutton. Although Joel admits to purchasing marijuana and cocaine for Officer Hamilton, he insists that licensee Abner was unaware of such purchases and that they were not made in licensee Abner's presence. Further, Joel contends that when offered the exchange for the stolen liquor by Officer Hamilton, licensee Abner refused to purchase the allegedly stolen liquor and would not assist him in the purchase of same despite his attempts to do so on at least three occasions. Joel borrowed licensee Abner's van to transport the allegedly stolen liquor from the licensed premises to his apartment where he was to later have a party. Joel admits to having made a mistake in purchasing the allegedly stolen liquor and purchasing drugs for Officer Hamilton on the licensed premises; however, he states that licensee Abner should not be held responsible for his acts and/or conduct. Joel has been arrested and charged for the felony sale of a controlled substance to Officer Hamilton. Johnny Wilbur Abner, the licensee, is the owner/operator of the Manhattan Restaurant. Licensee Abner has operated the Manhattan Restaurant for approximately eight years. Licensee Abner has a policy of no drugs or loitering in his premises, and he further enforces a no loitering policy in the parking lot of his premises. Licensee Abner enforces that policy with and through his employees. Licensee Abner has evicted a number of patrons from the Manhattan Restaurant and recalled having done so as frequently as three (3) times each week. Additionally, licensee Abner has a policy to avoid dealing in stolen property entirely. He has not knowingly purchased any stolen liquor, nor has he been introduced to Officer Hamilton prior to the subject incident. Licensee Abner loans Joel money on a regular basis. Licensee Abner offered no explanation as to how the Popov Vodka got to his place, inasmuch as he does not sell Popov Vodka. Division Director Willingham's examination of the inventory taken when the Emergency Suspension and Notice to Show Cause were served upon the Respondent on April 13, 1983, revealed that there were, inter alia, four 1.75 liters of Popov liquor on the licensed premises on that date and that, in addition, there were two other bottles of Popov liquor which were seized by beverage agents during the serving of the Emergency Suspension Order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Respondent's alcoholic beverage license No. 68-442 SRX, Series 4-COP, be suspended for a period of ninety (90) days and that it pay a fine of $100 for each of seven (7) violations alleged in the Notice to Show Cause filed herein dated April 13, 1983. RECOMMENDED this 24th day of June, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, 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 24th day of June, 1983.
The Issue The issues to be resolved in this proceeding are whether the Respondent has committed violations of Florida statutes pertaining to alcoholic beverage licenses, and, if so, what penalty should be imposed. The Petitioner contends that Respondent violated the provisions of Sections 561.29(1)(a) and (c) by condoning and/or negligently overlooking trafficking in illegal, controlled substances on his licensed premises. The Respondent contends that he took all reasonable steps to prevent any unlawful activities from occurring on his licensed premises, and that to the extent any unlawful activities were conducted on his licensed premises, he neither condoned nor negligently overlooked them.
Findings Of Fact Robert Pauley is the holder of Alcoholic Beverage License No. 60-1229, Series 2-COP. The licensed premises is located at 4458 Purdy Lane, West Palm Beach, Florida, and is operated under the name "The Treehouse Saloon". The Treehouse Saloon is a "topless bar". It offers so-called adult entertainment to members of the public as well as beer and wine for consumption on the premises. The entertainment consists of women who dance nude or semi- nude. The premises includes numerous tables and a bar where patrons sit, pool tables, restrooms, an office where the Respondent conducted business, a disc jockey's booth, and a dance floor where the women performed. The Treehouse Saloon has been closed since June 8, 1983, when the Petitioner issued an emergency suspension order and notice to show cause. During May and June, 1983, John T. Slavin, an agent employed with the Palm Beach County Sheriff's Department, was acting in an undercover capacity. He took on the appearance and wore clothes compatible with the role of a member of a motorcycle gang. He had been directed to frequent topless lounges in Palm Beach County and to work undercover to determine if illegal drug activities or prostitution were occurring. On May 5, 1983, Slavin entered the Treehouse Saloon. During the evening, he made friends with "Duane" who was working in the saloon as a disc jockey. Slavin asked Duane about the prospects of purchasing cocaine. Duane told Slavin that that could be arranged and that it would cost $60 for three- fourths of a gram. Slavin gave Duane $60. Duane left the disc jockey area and approached one of the dancers whose name was "Barbara." Duane then returned to Slavin and advised him that the "product" was on the way. A short time later, Barbara approached Duane, then Duane brought a matchbox to Slavin. The matchbox contained a transparent plastic bag with white powder in it. After he left the bar, Slavin 7 field-tested the "product" then turned it over to a chemist employed with the Sheriff's Department. The "product" was cocaine. The sale was made at approximately 2:00 a.m. On or about May 12, 1983, Slavin entered the Treehouse lounge at approximately 11:45 p.m. He saw Duane and asked whether Duane was "playing oldies." This was a signal meaning that Slavin wished to purchase more cocaine. Duane said that he was "playing oldies nightly" and asked Slavin how much he wanted. Slavin handed Duane $60. A short time later, Duane delivered a cigarette pack to Slavin and told Slavin that a cigarette was missing. Slavin found two transparent bags containing a white powder inside the cigarette pack. Slavin later field-tested the contents and delivered them to the chemist. The product was cocaine. On or about May 13, 1983, Slavin returned to the Treehouse Saloon at approximately 11:30 p.m. Shortly after mid- night on May 14, he approached Duane's booth and asked if they could do business. Duane said "yes," but that it would take a little longer for the delivery due to a special event (a "banana eating contest") that was being presented. Slavin gave Duane $60 which Duane put in his pocket. Later that morning, Duane put a pack of matches in Slavin's pocket. Slavin went to the men's room and found two plastic bags with a white powder inside. He later field-tested the contents then delivered them to the chemist. The product was cocaine. On or about May 18, 1983, Slavin returned to the Treehouse Saloon at approximately 10:30 p.m. He saw Duane at the bar and asked him why he was not in the disc jockey's booth. Duane indicated that he was squabbling with the management and would be taking some time off. Duane asked Slavin if he was interested in "some white" which is a "street name" for cocaine. Slavin asked if Duane could get him a gram. Duane said that he could. Slavin gave Duane $80. Later, Duane handed Slavin an aspirin tin. There were two small bags of white powder inside the tin. Slavin later field tested the contents then delivered them to a chemist. The product was cocaine. On this occasion, Duane said that he would be away for a while. Slavin asked Duane who could supply "coke" (cocaine) in Duane's absence. Duane named three dancers: "Linda," "Doree," and "Barbara." Although Duane was not in the disc jockey's booth on that occasion, he did appear to be directing other employees, including dancers, in their activities. On or about May 19, 1983, Slavin returned to the Treehouse Saloon at approximately 1:00 a.m. He talked to a dancer called "Doree." Doree's actual name is Diana Donnell. Since then, she has been arrested. Slavin asked Doree if she could get him some "coke." She told Slavin that it would cost $40 for a half gram. Slavin asked if he could buy a full gram, and she said "yes." Doree then performed as a dancer, after which Slavin gave her $80. At that time, he was standing right next to the dance floor. A short time later, Doree returned with two small plastic bags which contained a white powder. Later, Slavin field-tested the powder and turned it over to the chemist. The product was cocaine. On or about May 25, 1983, Slavin returned to the Treehouse Saloon shortly after noon. He sat at the bar next to a dancer whose name was "Samantha." Slavin asked her where Doree was, and was told that Doree was not working there anymore. Slavin asked Samantha if she could help him buy a half gram of cocaine. She said "yes" and that it would cost $40. Slavin placed $40 on the bar between them. She placed a cigarette pack on the bar and told him that there was a half gram inside. She took the money. The witness examined the contents of the cigarette pack, removed a plastic bag which contained a white substance, and returned the cigarettes to Samantha. Samantha told Slavin that he could buy from her in the future. Later, Slavin field-tested the product and delivered it to the chemist. The product was cocaine. Later in the day on May 25, 1983, at approximately 7:30 p.m., Slavin returned to the Treehouse Saloon. He saw Samantha and asked her if he could buy another half gram. She told him it would cost $40. Slavin gave her $40 and she went into the dressing room that was on the premises. When she came out, she gave him a transparent package that had white powder inside. Later, Slavin field-tested the contents and delivered it to the chemist. The product was cocaine. On May 31, 1983, at approximately 10:45 p.m. Slavin returned to the Treehouse Saloon. He talked to a dancer known as "Mama She She." Slavin asked if Samantha was available and was told that she was not there. Maid She She, whose actual name is Michelle West, said that she had "done a line of coke" earlier which was "dirty," but had given her a "good high." She told Slavin that a half gram would cost $40. Shortly after midnight, Slavin gave her $40. He did not receive anything from Mama She She until approximately 3:50 a.m. On several occasions in the interim, Slavin talked to Mama She She about it, but she indicated she was having some difficulty obtaining the cocaine. Eventually, she gave him a clear bag that had powder inside. She told Slavin that she would be working the next day (June 2) from 11:00 a.m. until 7:00 p.m. and that the witness could buy more then. Later, Slavin field-tested the contents of the bag and delivered them to the chemist. The product was cocaine. On or about June 2, 1983, Slavin returned to the Treehouse Saloon at approximately 3:30 p.m. He saw Mama She She and talked to her. She asked him if he was interested in "a half or a whole." He said "A half." She returned a bit later and said that there was nothing there then, but that if he would wait, she could probably get it. Later, she told Slavin that she was a bit reluctant to sell to him because he had not given her a "line" from his purchases. Slavin told Mama She She that he was buying it for friend to whom he owed money. At approximately 7:30 p.m., Mama She She still had not delivered anything to Slavin. She asked if he could drive her home, which he agreed to do. As they were leaving, another dancer, "Barbie," came in. Barbie asked Slavin if he recognized her. She told him that he had gotten cocaine from her through Duane in the past. Slavin asked if he could get a half gram, and Barbie said "yes." Slavin then took Mama She She home and returned at approximately 8:30 p.m. Barbie gave him a plastic bag with white powder inside. Slavin later field- tested the product and delivered it to the chemist. The product was cocaine. All of the women that Slavin dealt with at the Treehouse Saloon were dancers. They were either scantily clad or nude. They would dance for three songs on the dance floor, and customers would put money in their garter belts. A bartender and a bouncer were also present at the saloon. From time to time, a bartender or the disc jockey would tell a dancer it was her turn. The Respondent had hired the dancers as "independent contractors." Whatever their status at the Treehouse Saloon, the dancers were subject to direction from the Respondent or his managers. A list of rules for dancers provided, among other things, that no hard liquor or drugs were allowed on the premises and that the first offense would result in termination. The dancers were required to sign an "independent contractor agreement." The contract provided that dancers would not be considered an agent or employee of the saloon for any purpose. Despite these provisions, the dancers were clearly subject to direction by the bartender or disc jockey at the saloon. In addition, they were required to wait on tables, to circulate among customers, to work their complete shifts, to tip the bartender, and to perform other functions. They were clearly subject to the supervision and control of the Respondent, the bartender, or the disc jockey. When Slavin made the cocaine purchases described above, he communicated with Duane or the dancers in a normal conversational tone. A normal conversational tone in the Treehouse Saloon would he somewhat loud because loud music was constantly playing. The transactions were made in a somewhat secretive manner. A person who was carefully observing or monitoring the premises, however, would necessarily have been suspicious of Slavin, Duane, and the dancers. The Respondent did post rules in various locations of the Treehouse Saloon which provided that illicit drugs were not allowed. His dancers' rules provided to the same effect. Other than that, it does not appear that the Respondent took any steps to properly monitor his premises to assure that such activities were not occurring. Given the number of transactions and the nature of the transactions undertaken by Slavin, the transactions would have been observed by a manager who was reasonably observing and monitoring the premises. There is no evidence from which it could be concluded that the Respondent was directly involved in any drug trafficking or that he condoned it. The evidence does, however, establish that he was negligent in not properly monitoring the licensed premises to assure that illegal activities were not being undertaken there.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered by the Division of Alcoholic Beverages and Tobacco, Department of Business Regulation, finding the Respondent guilty of the violations alleged in the notice to show cause and suspending his beverage license for a period of two years. RECOMMENDED this 14 day of July, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1983. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Albert R. Wilber, Jr., Esquire 315 Third Street, Suite 301 West Palm Beach, Florida 33401 Mr. Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue This case concerns the issue of whether the Respondents' beverage license should be suspended, revoked or otherwise disciplined for permitting their licensed premises to be used for the purpose of prostitution and for gaining profit from that prostitution. At the formal hearing, the Petitioner called as witnesses, Beverly Fraley, Alfred Stone, and Raphael Grulau. The Respondents presented no evidence. The Petitioner offered and had admitted over the objection of the Respondent, one tape recording of conversations which occurred inside the licensed premises as a part of the undercover investigation by the Hillsborough County Sheriff's Office. Counsel for the Petitioner and counsel for the Respondents submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that these proposed findings and conclusions are inconsistent with the findings and conclusions contained in this order, they were considered by the Hearing Officer and rejected as not being supported by the evidence or as being unnecessary to the resolution of this cause.
Findings Of Fact At all times material to this proceeding, Katherine J. and Guy H. Sutton were the holders of a valid, current beverage license No. 39-1792, Series 2COP. This license was issued to a licensed premises called Guy's Tavern located on Highway 301, South, in Riverview, Florida. On May 12, 1983, Detective Beverly Fraley of the Hillsborough County Sheriff's Office, went to the licensed premises in an undercover capacity to investigate possible prostitution activity. On this particular evening, Detective Fraley was accompanied by two other detectives of the Hillsborough County Sheriff's Office in a backup capacity. Prior to entering the licensed premises, Detective Fraley was fitted with a body bug for the purpose of recording any conversations that she might have in the licensed premises during the course of the investigation. When Officer Fraley arrived, the two backup detectives were inside the licensed premises shooting pool. Upon entering the licensed premises, Officer Fraley went to the bar and ordered a drink. After obtaining her drink, she was approached by a white male, who called himself "Stogie." While talking with Stogie, another white male, who called himself "Turkey" approached Officer Fraley from behind and placed his arms around her. She had never met Turkey before. Officer Fraley pushed Turkey away and said "Keep your hands off the merchandise." Shortly after her encounter with Turkey, Officer Fraley began shooting pool with Stogie and the two undercover detectives. After a short time, she left the licensed premises with Detective Grulau and after a few minutes the two of them reentered the licensed premises. After reentering, Officer Fraley went to the ladies' rest room and when she came out, she was called over to the bar area by the owner, Guy Sutton, who was behind the bar. As Officer Fraley approached the bar, Mr. Sutton stated, "If you're going to fuck here you've got to pay me." Officer Fraley asked what he meant and he told her that she would have to pay him $5.00 for every trick" she took out of the bar. "Trick" is a slang or street term used to describe an act of prostitution. Mr. Sutton then identified himself as the owner and said that the other women in the bar also paid. Officer Fraley then gave Mr. Sutton a $5 bill. After paying Mr. Sutton, Officer Fraley turned to the bartender, Irene Springer, who was present during this conversation and asked if in fact the other women in the bar were required to pay. Irene Springer stated that the other women in the bar did in fact have to pay $5.00 per trick and a group of white females sitting at a table near the bar responded, "That's right honey." Later that evening, Officer Fraley left with the other undercover detective. When they returned, Guy Sutton was in the pool room area. Officer Fraley intentionally did not go over to Sutton. Shortly after she returned, Sutton came over to her and told her that she owed him another $5.00. He then told her that she would be better off paying him $25.00 per week rather than $5.00 per trick. He also stated that she had the potential to make $300 or $400 per week in his place. Guy's Tavern has a reputation in the community as a bar where prostitutes can be picked up.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered revoking Respondents' beverage license No. 39-1792, Series 2COP. DONE and ORDERED this 30th day of December, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 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 Johnnie Woods, Jr. is the owner of the licensed premises known as "Black Magic" located at 2908 Northwest 62nd Street, Miami, Florida, operating under alcoholic beverage license no. 23-5233, Series 2-COP. On January 26, 1984, Beverage Officer Davis entered the licensed premises known as Black Magic as part of an investigation to determine if drug violations were occurring on the licensed premises. On this visit, Davis observed numerous patrons either smoking marijuana (cannabis) or snorting suspected cocaine. On January 30, 1984, Beverage Officer Houston observed a barmaid known as May smoke a marijuana cigarette and snort suspected cocaine from a plate while working at the bar. Houston also purchased a marijuana cigarette from an unknown patron who she had seen walking through the bar with a baggie of rolled marijuana cigarettes. On this date, Houston was approached by a patron known as Daryl Chester-field who handed her a small brown envelope containing marijuana and some rolling papers. She then rolled a marijuana cigarette and placed it in her purse for safekeeping. While on the premises this date with Officer Houston, Officer Davis also observed numerous patrons openly smoking marijuana and snorting suspected cocaine. On February 2, 1984, Investigator Davis was on the licensed premises as part of this investigation. He observed an unidentified patron place a plastic bag of marijuana on top of a video game machine and roll several marijuana cigarettes while at the machine. This took place openly and no attempt was made by any employee to stop such activity. On February 10, 1984, Officer Houston entered the licensed premises as part of this investigation. She observed the on-duty bartender, Willie Brown, a/k/a Johnnie, smoke a marijuana cigarette while standing at the bar. At her request, Houston was referred to an individual known as Jimmy by the doorman, Slim, in order to purchase marijuana cigarettes. She thereafter purchased two separately rolled marijuana cigarettes from Jimmy for a total of two dollars. While purchasing the marijuana cigarettes from Jimmy, he inquired if Officer Houston would be interested in any cocaine. Later on February 10, 1984, Officer Davis approached Jimmy and purchased a $25 bag of cocaine from him. The transaction between Jimmy and Officer Davis occurred in the storeroom of the licensed premises from which Jimmy had earlier been observed removing beer to stock the bar. Before leaving the licensed premises this date, Jimmy approached Officer Davis and handed him a marijuana cigarette while Davis was seated at the bar. The delivery of this cigarette was unsolicited by either Officer Davis or Officer Houston. On February 16, 1984, Officers Houston and Davis again entered the licensed premises of Black Magic. Upon entering both officers observed the majority of the patrons either smoking marijuana or snorting what appeared to be cocaine. They also observed the on-duty bartender, May, smoking marijuana behind the bar. May was also seen this date snorting suspected cocaine from a saucer on the bar. While on the premises, Officer Houston again purchased two marijuana cigarettes from the individual known as Jimmy for a total price of two dollars. Also on this date, Houston approached the manager, Willie Brown, a/k/a Johnnie, and inquired if he had any cocaine. He then walked to the rear of the bar, entered the storage room, and returned with a small suede pouch from which he obtained a foil package containing cocaine. Houston gave Johnnie $25 in exchange for the package of cocaine. On March 1, 1984, Officer Thompson entered the premises of Black Magic as part of this investigation. Upon entering the licensed premises, Thompson observed numerous patrons openly smoking marijuana. While on the premises this date, Thompson purchased a $10 package of cocaine from the employee/manager known as Johnnie. The cocaine transaction took place inside the bar in an open manner. On March 2, 1984, Officer Thompson again entered the licensed premises as part of the investigation. Thompson observed the on-duty bartender, May, smoking a marijuana cigarette while working behind the bar. After observing May remove a cellophane bag containing several rolled marijuana cigarettes from her purse, Thompson inquired if she would sell him too of the cigarettes. In response to this request, May sold Thompson two marijuana cigarettes from the cellophane bag for two dollars. On the evening of March 2, 1984, Officer Thompson again entered the licensed premises at which time he observed the on-duty doorman, Slim, smoking a marijuana cigarette. He also observed numerous patrons openly smoking marijuana. On this occasion, Thompson inquired of an on-duty barmaid known as Felicia, if she had any cocaine. She initially stated that she had none, but later returned and asked Thompson what he wanted. He requested a ten dollar bag of cocaine. She then took Thompson's money and walked to the south end of the bar. Upon returning she handed him two foil packages containing cocaine. 1/ While on the licensed premises this date, Thompson observed the licensee, Johnnie Woods, Jr., seated at the south end of the bar with an unidentified individual who was observed smoking a marijuana cigarette. The controlled substances obtained from the employees and patrons of the licensed premises of Black Magic were maintained in the exclusive custody and control of the referenced beverage officers until such time as they could be submitted to the Metro-Dade Crime Lab for analysis. Upon submission to the Crime Lab, chemists analyzed each submission by the Division and found that each purchase made by the respective beverage agents were in fact the controlled substances represented to them at the times of the transactions. Upon each occasion that the beverage officers entered the bar during the investigation, there was widespread use of marijuana and cocaine throughout the licensed premises. While there were at least two signs on the licensed premises prohibiting the use or possession of drugs, at no time did the officers ever observe managers or employees of the licensed premises attempt to stop or restrict the use or sale of controlled substances on the licensed premises. In mitigation, Respondent established that he was hospitalized for a three-month period prior to and during the early portion of the investigation. He was, however, present on March 2, 1984, when controlled substances were openly used and delivered.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending Respondent's alcoholic beverage license for a period of 90 days, including the emergency suspension now in effect. DONE and ENTERED this 11th day of April, 1984, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1984.
Findings Of Fact At all times material hereto, Respondent, Quinto Patio Bar, Inc., d/b/a Quinto Patio Bar, held alcoholic beverage license number 23-02231, series 2-COP, for the premises known as Quinto Patio Bar, 1552 West Flagler Street, Miami, Dade County, Florida. In August 1987, a joint task force was formed consisting of police officers from Metropolitan Dade County and the City of Miami, as well as investigators of the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT) , to investigate narcotics complaints against numerous business establishments in Dade County. Among the businesses targeted was the licensed premises at issue in this case. On August 27, 1987, DABT Investigator Oscar Huguet and City of Miami Investigator Pedro Pidermann, operating undercover, entered the licensed premises in furtherance of the aforesaid investigation. Accompanying Investigators Huguet and Pidermann was a confidential informant (CI), who would accompany them on subsequent visits. During the course of this visit, and three other visits that predated September 5, 1987, the investigators familiarized themselves with the licensed premises, and became acquainted with the employees and patrons of the bar. On September 5, 1987, Investigators Huguet and Pidermann, in the company of the CI, returned to the licensed premises. Upon entering the premises, the investigators proceeded to play a game of pool and directed the CI to see if any drugs were available in the bar. The CI walked to the bar, spoke with employee Maria, and accompanied her back to the pool table. At that time, Maria offered to sell the investigators a gram of cocaine for $50. Investigator Pidermann handed Maria a $50 bill, Maria removed a clear plastic packet of cocaine from her pants' pocket and handed it to the CI, and the CI handed it to Investigator Huguet. Huguet held the packet up to the light at eye level, and then commented that it "looks like good stuff." This transaction took place in plain view, and in the presence of several patrons. On September 16, 1987, Investigator Huguet and the CI returned to the licensed premises and seated themselves at the bar. Huguet struck up a conversation with the barmaid Maria, and asked whether she had any cocaine for sale. Maria responded that the individual (later identified as Bandera) who brings in the "stuff" had not come in yet, but to come back the next day. Huguet told Maria he would return the next day and to reserve two grams for him. On September 17, 1987, Investigator Huguet and the CI returned to the licensed premises to make the purchase of cocaine arranged the previous day. Upon entry, Maria told Huguet that the man (Bandera) who sold the cocaine had just left through the front door. Huguet gave the CI $100, and told him to follow the individual and make the purchase. These conversations occurred in the presence of Yolanda, another employee of the licensed premises. After the purchase from Bandera, the CI returned to the bar and handed Investigator Huguet 4 clear plastic bags of cocaine. Huguet examined the bags at eye level and in the presence of Maria, and placed them in his shirt pocket. On September 18, 1987, Investigators Huguet and Pidermann, together with the CI, returned to the licensed premises and began playing pool. A short time later Bandera entered the bar and, upon being motioned over by the CI, approached the investigators. Upon greeting Bandera, Huguet asked him how much cocaine $100 would buy. Bandera replied "two grams", whereupon Huguet borrowed $50 from Pidermann to which he added $50 from his pocket, and tried to hand it to Bandera. Bandera, who had not previously met the investigators, told him no, to meet him in the restroom. Huguet met Bandera in the restroom, and purchased two grams of cocaine for $100. Upon exiting the restroom, Huguet observed Maria looking at him, held up the two clear plastic bags of cocaine, and mouthed the words "thank you" to her. On September 24, 1987, Investigators Huguet and Pidermann, together with the CI, returned to the licensed premises. During the course of this visit, Bandera was observed seated at the bar conversing with Maria. Pidermann and the CI approached Bandera, and asked whether he had any cocaine for sale. Bandera responded yes, and invited Investigator Pidermann to the restroom to consummate the transaction. Pidermann met Bandera in the restroom and purchased two grams of cocaine for $100. Upon exiting the restroom, Investigator Pidermann displayed the cocaine to Investigator Huguet and the CI above the bar. This display occurred in plain view and in the presence of several patrons. On September 25, 1987, Investigators Huguet and Pidermann, together with the CI, returned to the licensed premises and proceeded to play pool. A short time later, Bandera entered the bar, approached the pool table, and placed two clear bags of cocaine on top of the pool table in front of Investigator Huguet. Huguet asked Bandera how much the cocaine would cost and he stated $100. Huguet gave Bandera the money, picked up the packets and held them at eye level for examination. This transaction took place in plain view, in the presence of numerous patrons, and was observed by employee Asucercion. On October 2, 1987, Investigators Huguet and Pidermann returned to the licensed premise. During the course of this visit, Huguet engaged Maria in general conversation and inquired as to the whereabouts of Bandera. Maria advised Huguet that Bandera was probably at the Yambo Bar, and that if he wanted cocaine to see him there. Investigator Huguet left the licensed premises and went to the Yambo Bar, located approximately one block away. There he met with Bandera and told him that he wanted to purchase cocaine but that Pidermann had the money at the Quinto Patio Bar. Bandera told Huguet he would meet him out back of the licensed premises. Huguet returned to the Quinto Patio Bar and spoke with Investigator Pidermann in the presence of employee Asucercion. Huguet told Pidermann that for $100 Bandera would supply the cocaine. Pidermann gave Huguet the money, and Huguet went out back to purchase the cocaine from Bandera. After the purchase from Bandera, Investigator Huguet returned to the bar and placed two clear plastic bags of cocaine on the bar counter in front of Investigator Pidermann and Asucercion. Pidermann picked up the cocaine, examined it, and placed it in his pocket. On October 3, 1987, Investigators Huguet and Pidermann returned to the licensed premises and seated themselves at the bar. While the investigators were being served by Maria and an unidentified barmaid, Huguet inquired as to the whereabouts of Bandera. Maria replied that he was probably at the Yambo selling cocaine. Investigator Huguet left the licensed premises, met Bandera at the Yambo Bar, and arranged the same drug deal they had made the previous day. Huguet returned to the Quinto Patio Bar and spoke with Investigator Pidermann in the presence of Maria. Huguet again told Pidermann that for $100 Bandera would supply the cocaine. Pidermann gave Huguet the money, and Huguet went out back to purchase the cocaine from Bandera. After the purchase from Bandera, Investigator Huguet returned to the bar and seated himself next to Pidermann. In front of Maria and the unidentified bar maid, Huguet wrapped the two clear plastic bags of cocaine in a napkin and handed them to Pidermann. All of the events summarized in the preceding paragraphs took place at the licensed premises during normal business hours. At no time did respondent's employees express concern about any of the drug transactions. In fact, the proof demonstrates that the employees knew that cocaine was being sold, delivered, or possessed on the licensed premises on a regular, frequent, and flagrant basis. Ms. Dominga Lora (Lora), is the sole corporate officer of the licensee and owner of 100 percent of its stock. According to her, she is generally always on the licensed premises, and usually is seated at a small table by the pool table. Notwithstanding the fact that the lighting within the premises is good, Lora averred that she had no knowledge of any drug transactions on the premises and, in fact, doubted that any did occur. Lora's testimony is not credible. The proof is clear and convincing that the drug transactions previously discussed did occur on the licensed premises, and that they occurred in an open manner visible to patrons and employees alike. If reasonably diligent, Lora had to observe that drug transactions were occurring on the licensed premises but failed to make any reasonable effort to prevent them. Under the circumstances, it is concluded that Lora knew such sales occurred or negligently overlooked them.
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 23-02231, series 2-COP, issued to Quinto Patio Bar, Inc., d/b/a Quinto Patio Bar, for the premises located at 1552 West Flagler Street, Miami, Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of May, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1988. COPIES FURNISHED: Katherine A. Emrich, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Rene Valdes 1830 N.W. 7th Street Miami, Florida 33125 Daniel Bosanko, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether respondent's alcoholic beverage license should be revoked or otherwise disciplined on the grounds stated in petitioner's Notice to Show Cause, as amended.
Findings Of Fact The Respondent Respondent corporation holds alcoholic beverage license No. 23-00739, Series 4 COP, issued by the DABT, and operates a bar known as Doc Watson's ("the licensed premises") at 4591 Northwest 36th Street, Miami Springs, Florida. Entertainment is provided by female dancers who perform to jukebox music. (Testimony of Harden; P-1, R-1.) As to Count I II. Sale, Use, or Possession of Drugs on the Licensed Premises On November 8, 1981, at approximately 12:30 a.m., undercover Beverage Agent Donald Chastain purchased cocaine for $70 from Mike Pack, a doorman employed by respondent. The sale took place in the storeroom at the east entrance to the west bar on the licensed premises. During the drug transaction, Pack remarked that he "had been turning them [cocaine sales] over like hotcakes- -10 to 12 a day." (Testimony of Chastain.) On November 14, 1981, during the evening hours, Agent Chastain purchased a clear plastic baggie of cocaine (a white powder) for $70 from doorman Pack. The transaction took place, in plain view, at the east entrance to the west bar on the licensed premises. (Testimony of Chastain.) On November 21, 1981, during the evening hours, Agent Chastain again purchased a clear plastic baggie of cocaine for 565 from doorman Pack. The sale took place at the east entrance to the west bar on the licensed premises, and in plain view of Carlos Santana (known as "Manny") , a male patron. (Testimony of Chastain.) On December 11, 1981, during the evening hours, Agent Chastain again approached doorman Pack at the east entrance to the west bar on the licensed premises and offered to buy cocaine. Pack replied that he had none but would try to find some; he then left his post at the bar entrance, walked to the pool table area where he talked with Sonya Olitsky, a female dancer, then returned to Agent Chastain. Doorman Pack then sold a clear plastic baggie containing cocaine to Agent Chastain for 570. (Testimony of Chastain.) On December 21, 1981, during the evening hours, Agent Chastain again approached doorman Pack at the east entrance to the licensed premises and asked to purchase cocaine. Pack replied that he had none but could obtain some; a little later, Agent Chastain approached Pack again, but he still did not have any cocaine available. Doorman Pack then offered to obtain some from another employee on the licensed premises; after Chastain gave him 570, Pack left his post and, a few minutes later, returned and gave Agent Chastain a clear plastic baggie containing cocaine. The drug exchange took place in plain view at doorman Pack's duty station, the east entrance to the bar. (Testimony of Chastain.) On February 10, 1982, doorman Pack, off duty at the time, approached Agent Chastain on the licensed premises and asked if he was looking for cocaine. Chastain said yes; Pack replied that it would cost 570. Chastain then gave him 570 for a white plastic baggie containing cocaine; this transaction occurred at the entrance to the east bar, in plain view of Victor Narin, the on-duty doorman. After the sale, at Pack's request, Chastain brought the cocaine to a bathroom on the premises where Pack ingested a small quantity. (Testimony of Chastain.) On February 15, 1982, during the evening hours, Agent Chastain entered the premises. Doorman Pack asked him if he wanted to buy some excellent cocaine; Chastain agreed and handed him $70 for a clear plastic baggie of cocaine. This transaction took place in plain view at Pack's duty station at the east entrance to the west bar. (Testimony of Chastain.) On February 23, 1982, Agent Chastain met doorman Pack at his duty station at the east entrance to the west bar and asked if he had any cocaine for sale; Pack replied that he had none but sent Ray Patterson, an off-duty doorman, to get Joe Hevia, a patron. Hevia told Chastain that he would need $70 "up- front"; Chastain was reluctant to agree since he didn't know Hevia. Doorman Pack then obtained a clear plastic baggie of cocaine from Benjamin Maples, 2/ a former doorman on the premises, and sold it to Chastain for $70. This transaction took place in plain view at the east entrance to the west bar. (Testimony of Chastain.) As to Count II On December 15, 1981, Agent Chastain approached Dorothy E. Zink, a dancer employed by respondent, and asked if he could buy some cocaine; she agreed. He gave her $70; she directed him to a pay telephone across from the stage area on the licensed premises where he found a small baggie of cocaine in the coin return slot. (Testimony of Chastain.) Later that evening, Agent Chastain asked dancer Zink if she knew where he could get some quaaludes; she agreed to sell him some. He handed her $12, and she told him the quaaludes would be placed in the same coin return slot of the pay telephone used earlier. He proceeded to the pay telephone and found a plastic bag containing four tablets of diazepam. (Testimony of Chastain; P-7.) On January 4, 1982, Agent Chastain approached dancer Zink on the licensed premises and gave her $70 for the purchase of cocaine. After checking elsewhere in the bar, she returned and told him that she could only find one- half a gram for $35. Thereafter, he met her by the pay telephone and, in plain view, gave him a clear plastic baggie containing cocaine. (Testimony of Chastain.) On January 21, 1982, in response to Agent Chastain's inquiry, dancer Zink agreed to sell him cocaine for $70. He slowly counted out $70 while in the stage area of the west bar of the licensed premises and in plain view of several nearby patrons. He placed the money in an address book held by dancer Zink, then ;net her at the pay telephone where she handed him a folded piece of paper containing cocaine. (Testimony of Chastain.) As to Count III On January 26, 1982, Darlene Harper, Melaine Goransky, and Linda Pryor, dancers employed by respondent, exited the west entrance of the licensed premises with purses in hand. They entered a parked vehicle where they removed from one of the purses a marijuana cigarette which they lit and passed between them. (Testimony of Johnson; P-3, P-4.) As to Count IV On February 10, 1982, during the evening hours, Agent Chastain entered the west bar of the licensed premises. Michael Stoodley, the doorman, told him that doorman Pack had some good cocaine for sale. Chastain replied that he had just bought some; Stoodley then asked Chastain to give him some. After Chastain handed him the cocaine, Stoodley entered the storeroom near the east entrance and ingested some. Upon exiting the storeroom, doorman Stoodley handed him a tablet containing methaqualone. (Testimony of Chastain.) When Agent Chastain entered the licensed premises on March 4, 1982, doorman Pack approached him and asked if he wanted to buy some cocaine for $75. Chastain declined but said he wanted to buy some quaaludes. Pack said to contact doorman Stoodley, who was then on duty at the entrance to the east bar. Agent Chastain then proceeded to the entrance and bought four methaqualone tablets from doorman Stoodley for $12. (Testimony of Chastain.) As to Count V On February 23, 1982, Benjamin Maples supplied cocaine to doorman Pack which was, in turn, sold to Agent Chastain on the licensed premises. (See paragraph 9 above.) He was, however, no longer employed by respondent, since he had been fired in October, 1981. (Testimony of Chastain, Harden, Swanfeld.) On February 27, 1982, after midnight, Agent Chastain entered the licensed premises and discussed with doormen Patterson, Pack, and former doorman Maples a cocaine purchase he had made there two days earlier. Maples then offered to sell Chastain a gram of cocaine. Chastain agreed and handed Maples $70 in return for a clear plastic baggie containing cocaine. But, when this transaction took place, Maples was not an employee of the respondent. (Testimony of Chastain, Harden, Swanfeld, Coronado.) As to Count VI On February 25, 1982, during the evening hours, Agent Chastain entered the licensed premises and asked Dale Patterson, the doorman on duty, if he knew where he could buy some cocaine. Patterson told him he would sell him one gram for $100. After Chastain balked at the price, Patterson lowered it to $80 and told him to check back with him in 15 minutes. Later, when Chastain returned, Patterson introduced him to Jack Corderra, a patron, who took him to a room separating the two bars on the licensed premises and sold him two lumps of cocaine for $80. (Testimony of Chastain.) As to Counts VII and VIII Between November 8, 1981, and March 6, 1982, illicit drugs, including cocaine, methaqualone, marijuana, and percodan (oxycodone) were kept, sold, and delivered on the licensed premises in the manner described herein. As to Count IX through XIII Pursuant to a search warrant executed on the licensed premises on March 6, 1982, respondent's employees and their possessions were searched. Percodan, containing oxycodone, was found in the purse of dancer Cynthia Lytle; marijuana was found in the purse of dancer Margaret McLain; diazepam was found in the purse of dancer Nicole Moon; marijuana was found in the purse of dancer Deronda Doolittle; and a packet of cocaine was found on waitress Ruth Robinson. (Testimony of Houston, Chastain.) III. Respondent's Management and Supervision of the Licensed Premises A. The No-Drug Policy Both before and during the time in which these drug transactions occurred on the licensed premises, respondent announced a no-drug policy to its employees. It posted notices and distributed memoranda prohibiting the possession, use, or sale of any illicit drugs on the premises; employees were told to report any drug violations to the manager and warned that violation of the no-drug policy would result in immediate dismissal. (Testimony of Harden; R-1, R-3.) During the time in question, respondent was aware that complaints had been made to DABT about narcotic violations occurring on the licensed premises. By letter to the Dade County Liquor Consortium, Inc., dated November 2, 1981, DABT expressed a hope that the owners of Doc Watson's, and several other named licensees, "will strictly supervise the conduct of their employees (P-2.) Respondent requested information concerning the complaints; DABT did not provide the requested information because it was conducting an ongoing drug investigation of the premises and did not know, at that time, whether management was involved in illicit drug activities. Respondent also sought advice from Miami Springs police officers on how to control illegal drug activities. (Testimony of Harris, Lifset; P-2, R-21.) Respondent took several steps to implement its no-drug policy. In February, 1981, it hired Larry Williams, a former police officer, as its-new night manager. Williams was instructed to eliminate drug violations on the premises; during the next several months he caught four employees possessing, using, or selling drugs and summarily fired them. Between 1980 and 1981, several other employees had been fired because of suspected use of drugs on the licensed premises. When customers were observed passing illicit drugs, they were asked to leave the premises. (Testimony of Williams, Lifset, Milligan, Sayer, Harden; R-5, R-6, R-7, R-8, R-9.) Respondent required its employees to keep their personal belongings in lockers provided on the premises. The combinations to the locks were known to respondent, and it would occasionally spot search the lockers for illicit drugs. (Testimony of Harden, Hoffman.) Respondent reiterated its no-drug policy at its staff meetings held every four to six weeks. (Testimony of Harden, Lifset, Williams.) Neither James Harden, sole stockholder of the respondent corporation, nor any of respondent's managers were personally involved in any of the illicit drug violations described in Part II above. H. Widespread and Persistent Drug Trafficking on the Licensed Premises Despite respondent's announced no-drug policy, employees, during the time in question, engaged in illicit drug activities on the licensed premises in a persistent and practiced manner. Beverage Agent Chastain was successful in purchasing illicit drugs during one-half of his 25-30 visits to the licensed premises. Employees who did not have drugs available at the time often helped him locate and purchase drugs from others on the premises. (Testimony of Chastain, Houston.) These drug transactions were not isolated events. Drug trafficking on the premises was widespread and occurred in plain view of other employees and patrons. Drugs were sold and talked about in an open manner. For instance, on March 2, 198.2-- when Agent Chastain stepped from his car in respondent's parking lot--doorman Pack called down from an apartment on the second floor above the licensed premises and, in a loud voice, asked him if he wanted some white powder, meaning cocaine. (Testimony of Chastain.) Many of the 75 employees of respondent were involved or implicated in the drug transactions described in Part II above. Out of a total of six doormen, three sold drugs to Agent Chastain. Of approximately five waitresses employed by respondent, two were arrested for possessing illicit drugs on March 6, 1982. Of the 30-35 dancers, at least five engaged in illicit drug activities on the premises between November, 1981, and March, 1982. (Testimony of Chastain, Houston.) C. Respondent's Failure to Diligently Enforce its No-Drug Policy By November, 1981, the owner of respondent was aware that illicit drug activities had been occurring on its licensed premises. Earlier in the year he had hired a former policeman as night manager to control such activities; several persons had been fired for illicit drug activities on the premises. (Testimony of Harris, Harden, Williams.) Respondent was also aware of concrete steps--suggested by DABT--which could be taken by bar owners to prevent illicit drug activity on their premises. 3/ Those steps included giving polygraph examinations to employees, forbidding employees access to their personal belongings while on duty, checking the background of prospective employees for drug history, strictly enforcing rules of conduct for employees, and periodically searching employees. (Testimony of Harris, Harden.) Under these circumstances, respondent failed to diligently supervise its employees and enforce its no-drug policy between November, 1981, and March, 1982. Employees who violated the no-drug policy, such as Darlene Harper, Melanie Goransky, and Linda Pryor (see paragraph 14 above) , were not immediately dismissed. Neither was dancer Dorothy Zink, although day-manager Marilyn Lifset suspected her of selling drugs. Employee searches and spot checks were haphazard and infrequent: Jack Wandel, a bartender for six years, and Sandra Sayer, a waitress for 3 1/2 years, had never been searched; Ann Hoffman, a dancer for five months, had never been searched; Sandra Olitsky, a dancer for two years, and Kathy Mitler, a bartender for eight months, had each been searched once. (Testimony of Chastain, Lifset, Wandel, Sayer, Hoffman, Olitsky, Mitler.) Night-manager Larry Williams conscientiously enforced the no-drug policy between February and October, 1981. A former police officer, Williams watched his employees closely and fired employees he suspected of drug trafficking. But, manager Williams left respondent's employment in October, 1981, before the drug violations in question here occurred. There is no evidence to indicate that his eventual replacement, who has since left respondent's employment, enforced the no-drug policy with equal commitment. Most of the illicit drug activities encompassed by the charges at issue occurred during the night shift. (Testimony of Williams, Harden, Chastain.) Respondent neglected to take reasonable steps to effectively carry out its no-drug policy. Although it knew illicit drug activity had occurred on the premises it: (1) failed to conduct frequent and thorough spot searches of its employees; (2) failed to promptly dismiss employees who violated the policy; (3) failed to consistently investigate the background of prospective employees; (4) failed to administer polygraph examinations; (5) failed to prohibit employee access to personal belongings while on duty; and (6) failed to closely monitor and supervise its nightshift employees for the purpose of detecting illicit drug activity. IV. Prior Record Licensee has never before been cited for any violation of the Beverage Law. (Testimony of Harden.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license be suspended for a period of 90 days, with credit given for any period of suspension effected by the Emergency Order of Suspension executed in March, 1982. DONE AND RECOMMENDED this 2nd day of April, 1982, 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 2nd day of April, 1982.
Findings Of Fact The Respondent, Linda Diane Kinsey, holds Beverage License No. 63-1339, Series 2-CO. Under this license, she operated a business establishment named Fred Said's located at 913 West Robinson Street, Lakeland, Florida. On December 3, 1982, Beverage Officer Randall Robert West, accompanied by Dennis B. Russo of the Polk County Sheriff's Department, initiated an undercover investigation of Fred Said's. They arrived at the licensed premises approximately 2 00 p.m. Fred Tucker was behind the bar and served them two beers. The Respondent, Linda Diane Kinsey, was seated on a stool behind the bar. After a short time, Fred Tucker went out in the back of the bar to work on some construction. While he was out back, Deputy Russo approached Tucker about buying some marijuana. Tucker indicated he had some and they went back into the bar where Tucker retrieved a plastic bag of what he represented to be marijuana. The bag was taken from a drawer behind the bar and when Tucker opened the drawer, Officer West saw other bass of what appeared to be marijuana in the drawer. Tucker handed the bag to Deputy Russo who paid him 825. The bag was later verified by laboratory analysis to contain approximately 9 grams of cannabis, a controlled substance listed in Florida Statute 893.03. (See Petitioner's Exhibit 1). When Fred Tucker took the bag of marijuana out of the drawer, the Respondent, Linda Diane Kinsey, was still seated behind the bar a few feet from the drawer and Fred Tucker. The drawer was in a clear line of sight from where she was seated. On December 14, 1982, Officer West, along with Investigator Russo and Deputy Nicolas H. Del Costello, returned to Fred Said's. When they arrived, the Respondent, Linda Diane Kinsey, was seated behind the bar. Officer West asked Ms. Kinsey if Fred Tucker was around. He then asked "Does Tucker have a bag for sale?" "Bag" is a common term for marijuana. In response to the question about the "bag for sale", Linda Diane Kinsey nodded her head yes and then got up and went to the back of the bar and called Tucker. Tucker came in and walked over to the game area where officer West and his companions were. After asking what they wanted, Tucker took a bag of marijuana out of his docket and sold it to Officer West. The bag was later confirmed by laboratory analysis to contain approximately 12 grams of cannabis, a controlled substance listed in Chapter 893.03, Florida Statutes. (See Petitioner's Exhibit 2). When the transfer of marijuana took place on December 14, 1982, on the licensed premises, the Respondent, Linda Diane Kinsey, was seated behind the bar approximately 30 feet away from where the transfer took place. On December 16, 1982, Officer West, accompanied by Investigator Russo, returned to Fred Said's with a search warrant. In the course of the search of the licensed premises, two plastic bags containing seeds were found. These bags were in the drawer behind the bar from which Fred Tucker had taken the bag of marijuana on December 3, 1982. The bags of seeds were later verified by laboratory analysis to contain 25 grams and 4.6 grams of cannabis, a controlled substance listed in Florida Statute 893.03. During December, 1982, Mr. Fred Tucker was employed as manager of Fred Said's. On December 3, 1982, he was tending bar and was observed signing an invoice for a beer delivery that occurred while Officer West and Investigator Russo were present. The Respondent testified that she was not aware of Fred Tucker's drug activity. However, she and Mr. Tucker were living together prior to December 16, 1982, and they scent a lot of time together. She was also present in the bar at the time of the purchases on December 3 and December 14. She admitted on cross examination that she was not sure he was dealing but she never asked. She did not recall telling Officer West on December 14 that Fred Tucker had a bag for sale but did not specifically deny such a conversation. She also testified that even while sitting behind the bar, she was not aware of what was going on in the licensed premises. There was no evidence that she, as licensee, had taken any steps to ensure that the premises were properly supervised and not being used for illegal purposes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's alcoholic beverage license he revoked. DONE and ENTERED this 29th day of April, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1983. COPIES FURNISHED: Daniel J. Bosanko, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Ms. Linda Diane Kinsey 3333 Baird Street Lakeland, Florida 33805
