Findings Of Fact At all pertinent times, Escandar, Inc. had a valid alcoholic beverage license, No. 23-1461 4 COP. The parties so stipulated. Rafael Escandar is president of Escandar, Inc. which owns the building in which he manages the "Apartment Lounge," a bar, featuring "female nude dancing as entertainment." (I T. 25) On August 5, 1981, petitioner formally advised respondent that solicitation by employees of alcoholic beverages from patrons was proscribed by law. The year before allegations of such offenses had resulted in a stipulated $500.00 penalty against respondent. On March 26, 1982, at about quarter past ten, Officers Louis J. Terminello, and Juanita Loud entered the Apartment Lounge, posing as customers. In a separate group, three other undercover agents, Officers Davis, Chastain and Iturralde also visited the establishment. The place was dark and noisy. Aside from illuminated exit signs, the only lights were on stage and in the girls' dressing room. Loud music but no light emanated from the juke box. People could not be heard from one table to the next and had to speak very loudly to be heard from one bar stool to the next. These conditions obtained on all subsequent visits, as well. Mr. Terminello and Ms. Loud struck up a conversation with Carol Brooks, a dancer who stopped at their table clad in a sheer negligee, between dances. They asked her for a gram of cocaine. She said she didn't think a gram was available on the premises, but took Ms. Loud back to the dressing room and gave her an amber glass vial containing a smaller amount of cocaine. On their return to the table where Mr. Terminello had stayed, he passed a ten dollar bill to Ms. Loud, who gave it to Ms. Brooks. At her request, Mr. Terminello bought Ms. Brooks a drink. At one point Terminello left the table for the bar, and another dancer, Lorrie Jobes, asked him for a drink, which he bought for her. Later, after the undercover officers brought up the subject of drugs, Ms. Jobes sold them a gram of cocaine for $70.00. The transaction took place in the women's restroom. Less than a gram may have in fact been involved, since the chemist received only two tenths of a gram of cocaine. Petitioner's Exhibit No. 4. Both groups of undercover agents returned to the Apartment Lounge on the following Thursday, April 1, 1982. Terminello and Loud asked a third dancer, Bonnie Smith, about cocaine and purchased a small amount from her for $5.00. This transaction occurred at a table in the bar. The next night both groups showed up again. Mr. Terminello gave Lorrie Jobes $70.00 for a gram of cocaine which she delivered to him at his table shortly after midnight. At one point Ms. Loud left the table and a dancer offered to give Mr. Terminello a blow job in his car when she got off work for $20.00. Later another dancer, Jill Carpenter, offered to commit oral sex on her next break for $50.00 in the parking lot. Bonnie Smith told Terminello that Linda Vonluttichau, another dancer, had good cocaine for sale at $80.00 per gram with a two gram minimum. After speaking to Ms. Vonluttichau himself, Mr. Terminello left $160.00 inside a napkin on the bar. After she had picked up the money, she waved him over to the bar and gave him some cocaine in a Zip-Loc bag. Later Laurie Hegarty, a barmaid, asked Mr. Terminello if she could ingest some of the cocaine he had purchased because, she said, she had heard it was very good. He obliged. Still later, Mr. Terminello purchased half a gram of cocaine from Lorrie Jobes for $30.00. About twenty of eleven on the night of April 3, 1982, Officers Loud, Terminello, Chastain, Iturralde and Davis made a fourth visit to the Apartment Lounge. Bonnie Smith led Terminello to the women's restroom where he purchased half a gram of cocaine from one William Golden for $30.00. Later the same evening he bought a gram of cocaine for $80.00 from Linda Vonluttichau, which she delivered to him over the bar while Rafael Escandar was seated near the other end of the bar. Another visit by the undercover agents, on April 9, 1982, was no less eventful. Mr. Terminello purchased six Quaalude tablets from still another dancer, Ms. Chitty, a marijuana cigarette from Jill Carpenter for $2.00, and two ounces of marijuana from Sherry Mays, also a dancer at the Apartment Lounge, not to mention drinks for Ms. Chitty and Bonnie Smith. Sherry Mays asked Terminello to buy her a drink, as well. It was also Sherry Mays who, seeing that Mr. Terminello's shirt bore the legend "SUNOCO," indicated her willingness to "agree to exchange a tank full of gas for oral sex on a regular basis, two or three times a week." (II T. 8) After talking to Ms. Linda Vonluttichau about purchasing two grams of cocaine and at her direction, Mr. Terminello gave Ms. Hegarty $160.00. Ms. Vonluttichau later delivered the cocaine to Mr. Terminello at his table. Still later Mr. Terminello accompanied Ms. Hegarty to the women's rest room where she ingested some of the cocaine Mr. Terminello had just purchased. The undercover agents made a final visit to the Apartment Lounge on April 16, 1982. That night Rafael Escandar told Mr. Terminello that "an old friend of his in the North Miami Police Department . . . [advised that the bar was under investigation] for narcotics and that [Terminello] needed to be especially careful because the person who called him described [Terminello] and Loud as having bought narcotics on the premises. "So he cautioned me about being careful, that the police were going to arrest [Terminello and Loud] if they found [them] or something like that." (II T. 18-19) This was shortly before other beverage officers arrived and executed a search warrant. The search turned up about one fifth of a gram of cocaine. Petitioner's Exhibit Nob. 14. Rafael Escandar was on the licensed premises every night the undercover agents were there, except for April 1, 1982. He routinely spent time at the bar on a particular stool, in between bookkeeping chores that he performed in an office closed off from the bar's not inconsiderable distractions. As standard practice, hem and Barbara Abbott, who has worked at the Apartment Lounge for more than a decade, specifically warned the dancers, many of whom were transient, against prostitution, drug vending and solicitation of drinks. Dancers have been fired for failing to observe one or more of these prohibitions. According to Tom Mandy, formerly a police officer who visited the Apartment Lounge regularly "to make sure there was no prostitution going on in the place," II T. 223, and occasionally to evict unruly patrons, management's "rules" were strictly enforced, and Mr. Escandar, if the police "wanted people fired that [they] thought were undesirable . . . would fire them immediately. There wouldn't be any questions asked." (II T. 231) Nothing in the evidence suggested that Mr. Escandar expected any share of the money (or gasoline) solicited or obtained by the dancers in exchange for their illegal goods and services. Except for Laurie Hegarty and Linda Vonluttichau, who was employed as a barmaid for a year and a half, the offending employees had not worked long for the Apartment Lounge. Kimberly Chitty worked less than a full night, one of only 20 nights over a period of a few months. Generally, they were transients or "street girls." Lorrie Jobes worked only ten days, she was fired before the raid on April 16, 1982. The evidence did not show what extent, if any, Mr. Escandar or Escandar Inc. profitted from sales of drinks solicited by the dancers. Early on in the investigation, Mr. Escandar noticed officers Loud and Terminello. They stood out because they came together as a couple and because dancers congregated at their table. Mr. Escandar testified that he "never thought about drugs." II. T. 270 Instead, he said he "thought that they were there to have some, trying to make out, to get a party at the end of the night." II. T. 270 On April 16, 1982, Escandar testified, he decided they were undesirables and told them that the police were coming, in an effort to get them to leave the bar. He explained that he had not earlier sought to discourage their presence in the bar, "because the girls ke[pt] telling me that they were spending money." (II. T. 274) There was no evidence of drug sales to anybody other than undercover agents. Mr. Terminello and Ms. Loud developed a certain rapport with many of the dancers, one of whom propositioned Ms. Loud. In preparing the foregoing findings of fact, respondent's proposed findings of fact, to the extent they have been extricable from proposed conclusions of law, have been largely adopted, in substance. To the extent they have been rejected, they have been deemed irrelevant or unsupported by the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondent's beverage license. DONE AND ENTERED this 20th day of December, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1982. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Paul R. Lipton, Esquire 1031 North Miami Beach Boulevard North Miami Beach, Florida 33162 Captain John Harris Ernest R. Graham Building 1350 Northwest 12 Avenue Miami, Florida 33136 Charles A. Nuzum, Director Department of Business Regulation Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue presented is whether Respondent violated the Final Order of Petitioner by failing to pay $1,250 to Petitioner on or before the expiration of 30 days after the entry of the Final Order.
Findings Of Fact Petitioner is the state agency responsible for regulating the sale of alcoholic beverages. Respondent is licensed to sell alcoholic beverages pursuant to license number 15-02311, Series 4COP SRX. The licensed premises are located at 680 George J. King Boulevard, Port Canaveral, Florida, 32920. On October 2, 2000, Petitioner entered a Final Order that required Respondent to pay an administrative fine of $1,250 within 30 days of the date of entry of the order. Respondent appealed the Final Order to the First District Court of Appeal. The First District Court of Appeal upheld the Final Order. Respondent failed to pay any portion of the administrative fine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 561.29; imposing an administrative fine of $2,500, pursuant to Rule 61A-2.022(8); and permanently revoking alcoholic beverage license number 15- 02311, Series 4COP SRX. DONE AND ENTERED this 24th day of May, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2002. COPIES FURNISHED: Richard Turner, Director Division of Alcoholic Beverages & Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Chad D. Heckman, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Raymond J. Cascella Manos Inc., d/b/a Sea Port Restaurant 680 George J. King Boulevard Port Canaveral, Florida 32920 Capt. German Garzon Department of Business and Professional Regulation 400 West Robinson Street, Room 709 North Tower, Hurston Building Orlando, Florida 32801
Findings Of Fact 10. The Division hereby adopts and incorporates by reference the Finding of Fact in foto, as set forth in the Recommended Order.
Conclusions The Director, Division of Alcoholic Beverages and Tobacco, Department of Business and Professional Regulation (hereinafter’Division’), after consideration of the complete record of this case on file with the Division, hereby enters this Final Order.
The Issue Whether the Division of Alcoholic Beverages and Tobacco (DABT) should take disciplinary action against respondent or its DABT license for the reasons alleged in the notice to show cause?
Findings Of Fact At all pertinent times, respondent 201 West, Inc. d/b/a Central City/Congo Craig's Safari, has held a quota license, No. 11-00259 4COP, authorizing it to sell alcoholic beverages at 201 West University Avenue, Gainesville, Florida. On August 23, 1991, Craig Cinque, respondent's sole shareholder and officer, executed on respondent's behalf a consent agreement which petitioner accepted and filed on September 6, 1991, resolving administrative proceedings then pending. The consent agreement provides: "The second and third floors now known as 'Congo Craig's' shall not admit customers under 21 years of age for a period of two years " Underaged Patrons Apprehended At eleven o'clock on a crowded Saturday night, September 7, 1991, five DABT officers entered Congo Craig's to check patrons' ages. DABT and other witnesses agreed that the bar had enough staff demanding proof from patrons of their ages as they entered, and that the lighting was adequate for this purpose. The DABT officers checked a number of already admitted patrons' "ID's" themselves, and found a false one that a 20-year-old woman, Amy L. Bruns, whom they saw drinking draft beer, had used to gain admission. The Maryland driver's license described a woman of its bearer's height and weight, but depicted a blonde, not the brunette the officers accosted. Petitioner's Exhibit No. 3. The next time DABT officers, again a contingent of five, discovered an under age patron at Congo Craig's was on October 12, 1991, another Saturday night when DABT and other witnesses agreed that the bar had enough staff checking patrons' ages as they entered, and that the lighting was adequate. Kim M. Chiappara, then 20 years and eight months old, was sharing a pitcher of draft beer with her older sister and others when she was interrogated by the DABT officers that night. A search of her person turned up no false identification. She was not asked whether she had used any, or borrowed her sister's identification, to get by the bouncers. The next Friday night DABT officers apprehended Dari A. Layne, who was born on October 27, 1972, at Congo Craig's shortly before midnight, as she was consuming a mixed drink. The "very good" counterfeit Pennsylvania driver's license she produced when asked for identification has her photograph, but lacks a holographic state stamp on the obverse and has a photocopied reverse, albeit duly laminated. After midnight on the same foray, DABT officers discovered Kim C. Stampler, three months and a week shy of her 21st birthday, holding a clear plastic cup containing a purple liquid. She denied having false identification, but a DABT officer's search turned some up. Also in the early hours of October 19, 1991, DABT officers arrested Christopher Wisniewski, an apparently intoxicated 16-year-old, whose father, also apparently intoxicated, only reluctantly admitted their relationship. Christopher, who was not asked what or whose identification, if any, he had used to get in, had a valid Florida driver's license on his person. Bar Tender Arrested The personnel that respondent assigned to check patrons identification as they entered did not take their stations until five o'clock evenings, an hour after opening. Aware of this, the DABT dispatched Randy Gordon (a stout, older- looking 19-year-old, who has succeeded two out of three times in efforts of this kind at some ten other establishments) to Congo Craig's. He readily gained admission between four and half past on the afternoon of November 8, 1991, without being asked for identification. The first customer of the evening, Randy asked Eric Frauman (who had agreed at the last minute to fill in for another bartender, and who ordinarily worked evenings when the bouncers, not the bartenders, are responsible for checking customers' identification) for a hamburger and a beer. Although he had been told to "card" everybody, Mr. Frauman neglected to ask young Mr. Gordon for identification. The second customer that evening was Ernest Wilson, the special DABT agent responsible for paying five dollars an hour for Mr. Gordon's services. Mr. Wilson took the beer, and Mr. Gordon, who paid for both, got the hamburger, which he described as very good. Mr. Frauman, a graduate student hoping to work as an educational counselor, was arrested and eventually prosecuted criminally. Precautions Taken Respondent is qualified as a responsible vendor, and was so certified during the time DABT made such certifications. All of the 18 employees respondent relies on for "security," those checking patrons' ages at night as well as the daytime bartenders and servers, are current with regard to the courses, tests and update meetings the responsible vendor program requires. Respondent's managers are current on requirements for managers. At weekly meetings of the managers, underage drinking was a regular topic. A book depicting driver's licenses in various jurisdictions is kept on the premises, and respondent's employees who testified seemed knowledgeable on the subject. Employees responsible for checking patrons' ages are told to require, at least of anybody who looks younger than 45, a driver's license, military identification or a passport. Several repeat customers testified that they had invariably been "carded." Although Congo Craig's can lawfully accommodate no more than 925 persons at any one time, the crowd "turns over" as the night wears on. From 35,000 to 45,000 patrons were on the premises between September 7, 1991, and November 18, 1991. During this period, DABT officers made several visits on which they failed to find a single patron under the age of 21. According to Kim Ehrich, who once worked at Congo Craig's, but now works elsewhere, Congo Craig's is probably the "strictest" bar in Gainesville, and does a more thorough job checking identification than the three other bars where she has worked in Gainesville. Willful Breach A week or so before the party at Congo Craig's on October 3, 1991, Charlotte Olsen, then social chairperson for the Phi Sigma Sigma sorority, told somebody at Congo Craig's that some of the party-goers would be under 21 years of age. She offered the sorority's wrist bands to demarcate those old enough to drink legally, but Congo Craig's used its own instead. Mr. Cinque was aware that underaged persons were expected to attend the party scheduled for the second and third floors, and decided to allow it, despite the consent agreement, in order to preserve "good will." About half of the 50 to 60 people at the party were under 21 years of age. He added staff, he testified, in an effort to stymie drinking by underaged attendees. This effort proved dramatically unsuccessful. Past Problems DABT established (in aggravation of penalty only) that respondent has a long history of problems of the kind proven in this case, dating to when respondent's father owned the establishment. When Mr. Cinque worked as a manager, before he became the owner, DABT issued some ten orders to show cause alleging beverage law violations, most of which respondent admitted. Since the younger Mr. Cinque assumed ownership, DABT has filed eight additional orders to show cause, the first seven of which were consolidated and disposed of by the consent agreement accepted by DABT on September 6, 1991.
Recommendation It is, accordingly, RECOMMENDED: That the Division of Alcoholic Beverages and Tobacco suspend respondent's license for ten (10) days. DONE and ENTERED this 10th day of December, 1992, at Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact Nos. 1-21, 24, 25, 28, 29, 31, 34- 46, 50, 53-56 and 58 have been adopted, in substance, insofar as material. With respect to petitioner's proposed findings of fact Nos. 22 and 23, it is not that easy to make out the eye color of the woman depicted on the license. With respect to petitioner's proposed finding of fact No. 26, Ms. Chiappara did not testify at hearing; it is not clear what sworn statement is meant. With respect to petitioner's proposed finding of fact No. 27, the evidence suggested that she used the counterfeit license to gain entry. With respect to petitioner's proposed findings of fact Nos. 30 and 33, the method of entry was not proven, but there was speculation. With respect to petitioner's proposed finding of fact No. 32, she was drinking a purple beverage. With respect to petitioner's proposed finding of fact No. 47, she so testified. Petitioner's proposed findings of fact Nos. 48, 49 and 59 are properly proposed conclusions of law. Petitioner's proposed findings of fact No. 51 and 52 have been rejected as not established by the weight of the evidence. With respect to petitioner's proposed finding of fact No. 57, the number of allegations is immaterial. Respondent's proposed findings of fact Nos. 1-10 and 14-17 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 11, Mr. Frauman did not usually work the day shift. With respect to respondent's proposed finding of fact No. 12, time constraints do not account for the failure to honor the consent order. Respondent's proposed finding of fact No. 13 is properly a proposed conclusion of law. COPIES FURNISHED: Thomas A. Klein, Esquire 725 South Bronough Street Tallahassee, Florida 32399-1007 Sy Chadroff, Esquire 2700 S. W. 37th Avenue Miami, Florida 33133-2728 Donald D. Conn General Counsel The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Richard W. Scully Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license no. 16-637 S, Series 4-COP, be revoked for multiple violations of the Beverage Law. DONE and ENTERED this 5th day of August, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1983.
The Issue Whether Respondent sold alcoholic beverages in violation of a municipal ordinance concerning the hours of sale of such beverages and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the state agency charged with regulating the sale of alcoholic beverages and tobacco in Florida. Respondent, Ferrell A. Melton and Nora J. Melton, d/b/a Prince Grocery (Respondent), is the holder of Alcoholic Beverage License No. 30-00004, Series 2APS. This license authorizes the Respondent to sell alcoholic beverages on the premises of Prince Grocery, located at 705 West Columbus Drive, Tampa, Florida (licensed premises). Prince Grocery is a neighborhood store. The City of Tampa Code, Article I, Section 3-3, prohibits places within its city limits and licensed by the State of Florida to sell alcoholic beverages after 3:00 a.m. and before 1:00 p.m. on Sunday. On September 21, 1997, Officer Anthony Pullara of the Tampa Police Department was dispatched to Respondent's licensed premises at approximately 3:00 a.m. Officer Pullara was dispatched to investigate complaints that Respondent was selling alcoholic beverages after hours. When Officer Pullara began the investigation of Respondent, he did not immediately go on the licensed premises, but rather positioned himself directly across the street from and facing the licensed premises. This location placed Officer Pullara about 200 feet from the licensed premises and gave him a clear view of the outside of the store and the parking lot. To aid his vision from this distance and to get a view of what was occurring inside the licensed premises, Officer Pullara used binoculars. On Sunday, September 21, 1997, between 3:00 a.m. and 3:55 a.m., Officer Pullara observed several persons enter the licensed premises. In each instance, the person would go to the front door of the premises and then knock on the door. Respondent, Nora Melton, who was inside the premises, would unlock the door and allow the person to come inside. After a short time inside, the patron would leave the premises carrying a brown paper bag that appeared to contain something. Officer Pullara could not see the contents of the bags. However, from the size and shape of the bags, the bags appeared to contain objects about the size of either bottles of beer or a quart of beer. Although Officer Pullara never verified the contents of any of the bags, he suspected that the bags contained beer. At approximately 3:55 a.m. on Sunday, September 21, 1997, George Munoz went to the front door of the licensed premises and appeared to knock on the door. Thereafter, George Munoz entered the premises. From Officer Pullara's vantage point, he observed Respondent and Munoz in the licensed premises appearing to engage in a friendly conversation. Officer Pullara also observed Respondent gather some bags from the front register area and then escort Munoz to the rear of the store. For the brief time Respondent and Munoz were in the rear of the store, they were out of Officer Pullara's view. When they returned to the front area of the licensed premises to the area where the cash register was located, Officer Pullara observed Munoz give something to Respondent. It then appeared to Officer Pullara that Respondent escorted Munoz to the front door and unlocked it so that he could leave. Munoz then exited the licensed premises carrying a brown paper bag. From Officer Pullara's observation's, the transaction with Munoz appeared to be similar to the transactions that Officer Pullara had observed between Respondent and other individuals who had come to the licensed premises between 3:00 a.m. and 3:55 a.m. on this same day. As Munoz was leaving the licensed premises, Respondent came to the front door and she and Munoz continued to engage in a conversation. Due to his position, Officer could not hear what the Respondent and Munoz were saying to each other, but it appeared to him to be a friendly conversation. After Munoz left the licensed premises, he went toward the car from which he had earlier exited. However, prior to getting into the vehicle Munoz pulled down the brown bag and a plastic bag contained therein, revealing two quarts bottles bearing the name "Schlitz Malt Liquor." In describing this event, Officer Pullara testified that "[Munoz] held them up in the air in front of his face, as if showing the other occupant of the vehicle that he had in fact purchased the beer." Officer Pullara then drove his police car into the parking lot of the licensed premises and observed Munoz get into his vehicle with the two quarts of Schlitz Malt Liquor. After Munoz pulled out of the parking lot, Officer Pullara stopped him. Officer Pullara then confiscated the two quarts of malt liquor. After he confiscated the malt liquor from Munoz, Officer Pullara returned to the licensed premises and arrested Respondent Nora Melton for after-hour sale of alcoholic beverages. Respondent was charged with the after-hour sale of alcoholic beverages and resisting an officer. Munoz did not testify at trial and Respondent Nora Melton was subsequently acquitted of the charge related to after-hour sale of alcoholic beverages. As a result of the events of September 21, 1997, Respondent was convicted of resisting arrest although adjudication was withheld on this charge. There is no dispute that, on September 21, 1997, Munoz got two quarts of Schlitz Malt Liquor from the licensed premises. However, Respondent's version of how Munoz came in possession of the malt liquor is at odds with that of Officer Pullara. According to Respondent, a female customer who had been in the licensed premises earlier telephoned Respondent and indicated that Respondent had forgotten to give the customer the cigarettes which she had purchased. Respondent knew this customer. However, when the customer called, Respondent did not recall whether she had given the customer the cigarettes. Nonetheless, Respondent gave the customer the benefit of the doubt and told her that if she came "right now . . . I'll give them to you." After the telephone conversation, the customer arrived at the licensed premises to retrieve the cigarettes. Respondent went to the front door and unlocked it to let the customer in, but did not relock the front door once the customer was inside. After Respondent gave the customer the cigarettes, the customer decided to purchase lottery tickets, which were located on the front counter area of the licensed premises. During the course of these transactions, Respondent and the customer engaged in a casual conversation in the front counter area of the licensed premises. While Respondent and the customer were engaged in conversation, Munoz, who appeared to be drunk, entered the premises through the unlocked front door and then reached around the customer for a bag. Respondent had known Munoz for several years and warned the customer that Munoz was a "dangerous person." As Munoz proceeded to the back of the store where the beer was located, Respondent told him that he could not purchase any beer because it was after 3:00 a.m. Munoz told Respondent, "Wait and see what I do." Munoz continued to the back of the store, moved a barricade that was in front of the beer, and removed two quarts of malt liquor. When Munoz returned to the front of the licensed premises, Respondent ordered him to give her the beer because he was not going to "[take] it outside." Respondent came from behind the counter where she had been standing, got between the customer and Munoz, and tried to grab the beer from Munoz. Munoz refused to give Respondent the beer and began "turning around and swinging the beer at [Respondent]." While Respondent was attempting to take the beer from Munoz, she thought of using a bat to break the beer bottles but decided against doing that for fear that he would hurt her. Respondent's concern for her own safety was based on her knowledge or belief that on an earlier occasion Munoz had broken his girlfriend's arm and "knocked her eye out." Respondent told Munoz that if he left the premises with the beer, she would "charge" him with shoplifting. Despite Respondent's threats and attempts to grab the malt liquor from Munoz, he left the licensed premises with the two quarts of malt liquor. While in the parking lot, Munoz removed or lowered the bag and displayed the two quarts of Schlitz Malt Liquor, by waving it in front of his face. At the time of the investigation which is the subject of these proceedings, Respondent had known Munoz for many years. Although Munoz had been a customer of the licensed premises, Respondent has had problems with him. About six years ago, Munoz gave Respondent a "bad check" which he never paid. Respondent believes that her problems with Munoz are due to his anger toward her because she always asks him about paying the check. On Monday morning, at about 11:00 a.m., September 22, 1997, Respondent went to the police department to file an incident report regarding Munoz taking the malt liquor from the licensed premises. Immediately after filing that incident report, Respondent went to the Internal Affairs Office and filed a complaint against Officer Pullara. The basis of Respondent's complaint against Officer Pullara was that he had mistreated her when he arrested her on September 21, 1997. Petitioner filed the subject Administrative Action against Respondent based on a complaint and report from the Tampa Police Department regarding an alleged violation of a City of Tampa Code provision relating to the hours that alcoholic beverages may be sold. At all times relevant to this proceeding, Respondent Nora Melton stayed at the licensed premises. She began staying there because of the increased number of burglaries occurring on the licensed premises. Respondent usually locked the front door to the premises at about 10:00 p.m., but the business did not close at this time. If someone who Respondent knew came to the front door of the licensed premises after 10:00 p.m., she would open it and let that person come inside to make a purchase. Since the September 21, 1997, incident, however, the shutters to the licensed premises are put down no later than 2:30 a.m. and no customers are allowed into the premises. The testimony of Respondent was credible and was unrebutted by Petitioner. Petitioner acknowledged that George Munoz has a long criminal record dating back to July 10, 1979, with his last arrest listed as July 23, 1997, about two months before the subject incident. The records reviewed at hearing by Agent Thompson reflected only arrests and not the disposition of the arrests. According to the records, Munoz has been arrested for: unlawful use of a weapon; theft; at least three incidents involving the purchase of cocaine; delivery and control of cocaine; disorderly conduct; petty theft; criminal mischief; burglary of a structure; burglary of a dwelling; at least two incidents involving probation violations; escape; domestic assault; domestic battery; at least two incidents of trespass; battery; and trespass of a structure. The record also revealed that a warrant had been recently issued against Munoz for domestic violence, aggravated battery, and driving under the influence. In an Administrative Action signed on June 2, 1998, Respondent was charged with violating a city ordinance relating to the hours that alcoholic beverages may be sold. The matter was disposed of by an informal hearing and Respondent was fined $250.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Petitioner enter a Final Order (1) finding that Respondent did not violate Section 561.29(1)(a), Florida Statutes, by selling alcoholic beverages after hours in violation the Tampa City Code; and (2) dismissing the charge in the Administrative Action. DONE AND ENTERED this 1st day of September, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1998. COPIES FURNISHED: Thomas D. Winokur Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Nora J. Melton, pro se 705 West Columbus Drive Tampa, Florida 33602 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Miguel Oxamendi, Esquire Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399
The Issue Whether or not on or about the 14th day of May, 1976, Mary Lener Arnold, a licensed vendor, did have in her possession, permit or allow someone else to have unlawfully in their possession on Mary Lener Arnold's licensed premises, alcoholic beverages, to wit: 9 half-pints of Smirnoff Vodka, not authorized by law to be sold under her license, contrary to 562.02, F.S.
Findings Of Fact The Respondent, Mary Lener Arnold, t/a Buggs' Drive Inn, held on May 14, 1976 and now holds beverage license no. 50-2 series 1-COP with the State of Florida, Division of Beverage. This licensed premises is located on Main Street, Greenville, Florida. On May 14, 1976, a confidential informant with the Division of Beverage went to the licensed premise of the Respondent in Greenville, Florida and purchased a bottle of alcoholic beverage not permitted under a 1-COP license. This confidential informant was working for officer B.C. Maxwell of the State of Florida, Division of Beverage. Officer Maxwell along with other officers with the Division of Beverage and officers of the Madison County, Sheriff's office returned to the licensed premises on May 14, 1976 and in looking through the licensed premises found a black bag containing 9 half-pints of Smirnoff Vodka on the licensed premises. This Smirnoff Vodka was not permissible on the licensed premises under a 1-COP license. On the licensed premises at the time of the inspection was one Patsy Jackson Williams who indicated that she was in charge of the premises. The confidential informant who had purchased the bottle of alcoholic beverage indicated that his purchase had been made from the same Patsy Jackson Williams. The black bag with its contents of 9 half-pints of Smirnoff Vodka is Petitioner's Exhibit #2 admitted into evidence. The alcoholic beverage purchased by the confidential informant is Petitioner's Exhibit #4 admitted into evidence.
Recommendation It is recommended that the Respondent, Mary Lener Arnold have her beverage license suspended for a period of 30 days based upon the charge proven in the hearing. DONE and ENTERED this 22nd day of December, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Larry D. Winson, Esquire Staff Attorney Division of Beverage 725 Bronough Street Tallahassee, Florida 32304 Mary Lener Arnold t/a Buggs' Drive Inn Main Street Greenville, Florida
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, the Respondent was the holder of a valid alcoholic beverage License No. 58-1090, Series 2APS. Respondent is a corporation which owns and operates several convenience stores in the Orlando, Florida area. On February 19, 1983, David Aaron Morgan purchased twelve cans of Budweiser beer at the Respondent's "Pore Jack's store located at 2233 Goldenrod Road, in Orlando, Florida. The purchase was made from a Mr. Claude P. Gillenwater, a clerk and employee at the store. Mr. Morgan had purchased beer from Mr. Gillenwater on at least three (3) prior occasions. At the time of his first purchase of beer from Gillenwater, David Morgan was required to show identification. He showed Mr. Gillenwater a restricted driver's license on which the year of birth appeared to be 1963. Mr. Morgan's date of birth is July 1, 1965. On February 19, 1983, Mr. Gillenwater did not check Mr. Morgan's identification. Mr. Morgan had never informed Mr. Gillenwater that he was underage. He knew Mr. Gillenwater would not serve him beer if he knew he was underage. The information on the restricted license was unclear because the license had been partially mutilated in the washing machine in the Morgan home. David Morgan is in the eleventh grade at Colonial High School. He is 5'8" tall and weighs approximately 160-170 pounds. He wears a mustache and has for over a year. After purchasing the beer, David Morgan left the store and walked to a car in the parking lot where two friends were waiting in a car. Mr. Morgan was observed leaving the store with the beer by Beverage Officers Homer Kenneth Rigsby and Claude E. Cruz. The beverage officers followed Mr. Morgan and his friends as they drove away from the store and stopped them a short distance away. Mr. Morgan was placed under arrest and taken to his home, where his parents were informed of the purchase of beer. It was then verified by a driver's license produced by Mr. Morgan's mother that he was, in fact, not of legal age to purchase alcoholic beverages. Prior to the February 19, 1983, incident, Mr. Gillenwater had been an employee with Respondent for six (6) years. He worked different shifts on an as need basis and the Respondent had never received any complaints regarding the performance of his duties. At the time of his initial employment, Mr. Gillenwater received training and instruction regarding his duties and specifically his responsibilities in assuring compliance with the beverage laws. After his initial training , Mr. Gillenwater was required to work under the supervision of the manager of the store or an experienced cashier until he became familiar enough with the policies and procedures of the company. All employees, and specifically Mr. Gillenwater, were instructed in checking identifications and in the Respondent's strict policy against sales of alcoholic beverages to minors. Mr. Gillenwater was fired by Respondent as a result of this incident. The store in question had a sign posted informing customers that they must be 19 years of age to purchase alcoholic beverages and that a Florida driver's license would be required as identification. (See Respondent's Exhibit 1.) There was also a sign reflecting the date prior to which a customer had to have been born in order to be able to purchase alcoholic beverages. Respondent's employees were instructed to require a driver's license as identification each time a purchase of alcoholic beverages was made by anyone who appeared under 30 years of age. They were required to do this until they became familiar with the particular individual and recognized him on sight as a person who had previously provided proper identification. There was no evidence that Respondent had had any previous violations at the store involved or at any of its other stores. During most of the hours the store is open, a manager or assistant manager is on duty supervising the cashiers. Respondent had no notice or information that any of its employees were failing to follow its procedures regarding the requirement for proper identification.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Respondent be found not guilty of the violation charged in the Notice to Show Cause and that the charge be dismissed. DONE and ENTERED this 28th day of June, 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 28th day of June, 1983. COPIES FURNISHED: Aldo Icardi, Esquire Post Office Box 879 Winter Park, Florida 32790 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Executive 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
The Issue The issues for disposition are whether Respondent sold alcoholic beverages to an underage person in violation of section 562.11(1)(a), Florida Statutes, as alleged in the Petitioner’s Administrative Action dated February 20, 1996, and if so, what penalty or discipline is appropriate.
Findings Of Fact Respondent is the holder of alcoholic beverage license no. 69-01472, Series 2APS, for a licensed premises doing business as Superette #3, located at 199 North Country Club Road, Lake Mary, Seminole County, Florida. On February 8, 1996 and at all relevant times, Salim Dhanani was the sole corporate officer and sole shareholder of Superette #3, Inc., the holder of the above-referenced alcoholic beverage license. The “City/County Investigative Bureau” (CCIB) is a task force of officers from the Seminole County Sheriff’s Department and surrounding cities assigned to investigate crimes relating to drugs, alcohol and vice, including the sale of alcohol to minors. CCIB acts on complaints and works with the Florida Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (DABT). Darrell Brewer, born March 18, 1976, was a police explorer who was asked to help the CCIB investigate sales of alcohol to underage persons. On February 8, 1996, he was 19 years old and was working with Officers Johnson and Hartner. On February 8, 1996, in the evening around 8:00 p.m., Brewer and a CCIB agent entered the licensed premises, Superette #3. Brewer wore jeans and a tee-shirt and carried cash and a valid ID, which he was instructed to present if requested. Brewer picked out a 6-pack of Miller Genuine Draft beer and took it to the counter, where he purchased it without being asked for identification or any question regarding his age. Brewer turned over the beer to Officer Johnson, who returned to the store and arrested the clerk who had made the sale, Salim Dhanani. In May 1996, Dhanani went to court and pled no contest to the criminal charge of sale of alcohol to an underage person. He paid a fine. In his eleven years in the United States, this is the only violation by Dhanani. He worked in several places before taking over Superette #3 in November 1993, and he never had problems with DABT. After the Brewer incident, Dhanani hired a private consultant to train his wife and him and their one employee. They learned to “ID” everyone, including regular customers; they posted signs and notices informing customers of their “responsible vendor policy” and their intent to prosecute minors attempting to purchase alcohol. Dhanani admits that he sold beer to Brewer without asking for identification and without questioning his age. Brewer is a large, mature youth who, at the time of hearing, looked to be in his mid-20’s. To Dhanani, at the time of sale, Brewer appeared to be “28 or so”. Under the responsible vendor program any customer who appears to be under the age of 30 must be required to present proper identification. Through Capt. Ewing, DABT presented unrebutted evidence that the premises in Lake Mary has been vacated by the licensee, Superette #3, Inc., and a new license was issued to the landlord of the premises. Cancellation of the Superette #3 license is in abeyance pending this proceeding.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Division of Alcohol Beverages and Tobacco enter its final order finding that Respondent committed the violation alleged in the Administrative Action, assessing a fine of $1000.00, and suspending the license for 7 days, or until Respondent has found an approved new location. DONE and ENTERED this 17th day of April 1997 in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April 1997. COPIES FURNISHED: Thomas D. Winokur, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Steven G. Horneffer, Esquire Suite 109 101 Sunnytown Road Casselberry, Florida 32707 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
