The Issue The issue is whether respondent's alcoholic beverage license should be disciplined for the reasons stated in the notice to show cause.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Santos Navarro Osornio (respondent or Santos), held alcoholic beverage license number 21-00850, series 2-COP, issued by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent operated a bar known as Santos Corner or The Pink Panther located at 190 South Third Street, Immokalee, Florida. Respondent's license authorized him to sell beer and wine for consumption on the premises and package sales for off-premises consumption. Respondent has operated the lounge since October 1987. As a licensee, respondent's establishment was subject to inspection during regular hours of operation. The Division conducts spot checks of such establishments at random in addition to checking establishments that have been the subject of complaints. It is noted that when respondent was issued his license in October 1987, he signed a statement authorizing Division agents to inspect and search the licensed premises during normal business hours without a search warrant. In early May 1989 petitioner's Fort Myers district office received a request from other area law enforcement agencies to participate in "Operation Fast Track", an operation planned and coordinated by the United States Department of Immigration and Naturalization Services (INS) in an effort to apprehend illegal aliens residing in the Immokalee area. Among other things, the operation called for a raid on respondent's licensed premises. Besides INS agents, other law enforcement agencies participating in the raid were the "SWAT", team of the Collier County Sheriff's office, the fire marshal's office and the county health department. Petitioner agreed to send agent Thompkins, a certified law enforcement officer, whose sole purpose was to inspect respondent's premises to ascertain if the licensee was in compliance with alcoholic beverage and tobacco laws and regulations. The raid took place around 11:30 p.m. on Friday, May 12, 1989. The crowded and noisy bar was then filled with more than one hundred customers, primarily Hispanic, who were enjoying entertainment provided by a popular Spanish band from Homestead, Florida. The events which occurred after the agents stormed the premises are sharply in dispute. In reconciling this conflicting testimony, the undersigned has accepted the more credible and persuasive testimony and embodied this testimony in the findings below. After entering the bar through the front double doors, and going around the partition which lies immediately in front of the doors, the agents observed a bandstand, tables, booths and dance floor to the immediate right, a horseshoe shaped bar to the front, a long unused bar to the left, and, in the upper left rear of the bar, five pool tables sitting between the unused bar and the horseshoe bar. A diagram of the bar received in evidence as respondent's exhibit 7 provides a more precise description of the premises. A SWAT team and a single INS agent first entered the front doors yelling "police" and "immigration" in English and Spanish. They did not have a search warrant. The SWAT team members wore their uniforms and bullet-proof vests. They also carried billy clubs and weapons. The attire of the INS agent is unknown although all members in the operation were expected to wear something which identified them as law enforcement officers. The first group's mission was to secure the area, line the patrons against the wall and pat them down. The INS agent then checked the patrons for citizenship documents. After the first group of officers entered, they were followed by another group of deputies and other agents, including agent Thompkins, who wore a new dark blue t-shirt with the word "POLICE" encaptioned in bold yellow letters on its back. In smaller letters beneath that word were the words "Division of Alcoholic Beverages and Tobacco". As Thompkins entered the front door he yelled "police" and did so a second time once he entered the bar area. Shortly after entering the premises, Thompkins observed deputy sheriff Joe Jones talking with a lady behind the horseshoe bar. The lady was Olga Candia, who lived with Santos in an adjoining apartment. Candia, a woman of small stature, was dressed in a red dress and high heel shoes and occupied a chair in the entrance way to the bar. Jones asked Candia to come out from behind the bar so that he could secure the bar area. She refused because, in her words, she "wasn't no wetback" that was going to be lined up against the wall and patted down. After Candia refused several requests to move, Jones advised Candia that she would be arrested for obstruction of justice if she did not comply with his request. At that point Candia started for the back door, but after taking only a few steps, Jones pulled her face down on the floor between the bar and pool table. As Jones attempted to pull her arms behind her back to handcuff her, Candia began to squirm. Agent Thompkins then assisted Jones in holding Candia down while the handcuffs were placed on the detainee. It should be noted that Thompkins is a rather large man who stands over six feet, two inches tall and weighs three hundred plus pounds. Candia immediately began screaming "Santos" at the top of her voice. While the above events were occurring, Santos, who was described by one officer as being "very cooperative", had complied with a request of another deputy to install a light in the bandstand area. The purpose of this was to provide more light in the dimly lit lounge. From that vantage point, Santos could not see Candia being held on the floor since the horseshoe bar stood around four feet high and was between him and the area where she was being held. However, over the turmoil and yelling in the bar he heard the screams of his girlfriend and proceeded as quickly as he could towards the bar area bent on furnishing Candia assistance. He could not run because of a gimpy leg. After he rounded the horseshoe bar he ran into the back of Thompkins, who was in a bent over position holding Candia down. Thompkins described the bump as having a "battering ram effect" on him and caused him to "stumble". However, he did not lose his grip on Candia, probably because Santos weighs no more than half as much as Thompkins and is much shorter. To illustrate the confusion and conflicting versions of events surrounding the alleged battery, deputies Jones and Strickland recalled seeing Santos flying through the air into Thompkins, jumping on his back and placing his arms around Thompkins' neck. However, Thompkins did not recall anyone hanging onto his back and placing their hands around his neck. Instead, he remembered only that someone or something had rammed his back. Two defense witnesses disagreed and contended that respondent never touched Thompkins but was knocked to the floor by a deputy before he reached Thompkins and Candia. Santos also related this version of events. It is found, however, that as Santos rounded the bar at a quickened pace, he accidentally ran or was pushed into Thompkins' back and was thereafter immediately secured on the floor with handcuffs by deputies. It is found that Santos did not intend to batter the officer nor did he know that the person he was running or falling into was a law enforcement officer. Santos was then arrested and charged with felony counts of battery and obstructing justice. A county judge later reduced those charges to a misdemeanor. After the above events occurred, Thompkins conducted an inspection of the licensed premises but found no serious violations of alcoholic beverage and tobacco laws or agency rules. Except for the pending charges, Santos has never been disciplined for a violation. Finally, numerous patrons of the bar were arrested the evening of May 12 for being in the country illegally and were taken to an INS detention center for further processing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent be found not guilty of violating the cited statutes and that the notice to show cause be DISMISSED with prejudice. RECOMMENDED this 22nd day of May, 1990, in Tallahassee, Florida. DONALD ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1990.
The Issue Whether petitioner's application to change its corporate officers should be denied because the proposed officer allegedly lacks good moral character.
Findings Of Fact The Village Zoo holds alcoholic beverage license no. 16-839, Series 4- COP SR, authorizing it to serve alcoholic beverages at its bar (the "licensed premises") at 900 Sunrise Lane, Fort Lauderdale, Florida. On September 22, 1982, the Village Zoo filed an application with DABT to change corporate officers by adding James C. Dowd as a vice president1. While this application was pending, James C. Dowd was employed as one of the managers at the Village Zoo. One of his duties was to help the bartender serve alcoholic beverages on an as-needed basis. On November 5, 1982, undercover Beverage Officer Tom Wheeler, 24, entered the licensed premises to investigate complaints of alleged sales of alcoholic beverages to underaged persons--persons under the age of 19. He paid a cover charge at the door, his identification was not checked. Inside, he saw 50-75 young patrons crowded in the area of the second floor bar. Two persons were tending bar, one of whom was James C. Dowd. Officer Wheeler saw two young patrons, William Esler, 17, and Kelly Heatherman, 18, approach the bar and ordered drinks from Mr. Dowd, who then served them two alcoholic beverages. (William Esler ordered and was served a Whiskey and Seven- up; Kelly Heatherman ordered and was served a Budweiser beer). Mr. Dowd served them these drinks without asking their age or checking their identification. When these two underaged individuals ordered the drinks, they were standing at the bar and in plain view of Mr. Dowd; they were neither standing behind others nor hidden from view. After Mr. Dowd served these two drinks, he was arrested and charged with the crime of serving alcoholic beverages to persons under the age of 19. When Kelly Heatherman and William Esler, the two underaged persons, entered the premises that evening, they paid a cover charge but their age was not questioned at the entry door. Neither was their identification checked. The Village Zoo has a reputation in the community as a popular gathering place for young people. Both William Esler and Kelly Heatherman had been there before. William Esler had been there twice, prior to the November 5, 1982, incident, and once since. His identification had never been checked, although he did not order a drink on his last visit. Kelly Heatherman had been there every week from approximately September (1982) to November 5, 1982. During most of his visits, he ordered alcoholic beverages. One time, his identification was checked at the door and he was turned away. Since the November 5, 1982, incident, he has returned to the Village Zoo a couple of times. James C. Dowd was aware of Heatherman's continued patronage of the Village Zoo and described Heatherman as a regular customer. Heatherman continued to order and was served alcoholic beverages during his visits to the Village Zoo after November 5, 1982. After November 5, 1982, Heatherman continued to enter the Village Zoo without having his identification checked, despite the fact he was identified to the Village Zoo and James C. Dowd, on November 5, 1982, as being under the legal age (19) to possess or consume alcoholic beverages. Both William Esler and Kelly Heatherman were, as of the date of the administrative hearing on this case, under the age of 19 years. James C. Dowd knew or should have known that Kelly Heatherman's consumption of alcoholic beverages served by the Village Zoo after November 5, 1982, was contrary to the Beverage Law. (This paragraph contains findings of fact which are in addition to those found by the Hearing Officer. Such additional facts are not contrary to those found by the Hearing Officer, rather they amplify the same and are supported by competent, substantial evidence in the form of sworn testimony of Kelly Heatherman, William Esler and James C. Dowd). The Village Zoo had an announced policy prohibiting the sale of alcoholic beverages to underaged persons and prohibiting their entry onto the licensed premises. To enforce this policy, two persons were posted at the entryway to check identification and collect cover charges from patrons. Peter Balcunas, and off-duty Fort Lauderdale policeman, was also hired to provide security and assistance to the door-checkers. He was ordinarily posted near the front door, outside the premises. Under this Village Zoo policy, the two door-checkers had the primary responsibility to check the identification of patrons and prevent underaged persons from entering the premises. All employees, however, had the duty to check the identification of any patron if there was any question or doubt about whether the individual was of drinking age. Both William Esler and Kelly Heatherman fall within this "questionable or doubtful" category. From their demeanor and outward appearance at hearing, it is difficult to determine their true age. Their faces are mature for their age and they could reasonably pass as 18, 19 or 20-year olds. On the evening of November 5, 1982, Kelly Heatherman and William Esler entered the premises, walking past the door-checkers and Officer Balcunas. They then proceeded to the second floor bar and ordered drinks from Mr. Dowd. Their age was not questioned and their identification was not checked. The Village Zoo's announced policy of forbidding sale of alcoholic beverages to minors, including steps taken to enforce it, compares favorably with those of similar businesses in the area serving alcoholic beverages. James C. Dowd, the person allegedly lacking in good moral character, has a reputation in the community as an honest trustworthy, hardworking and law- abiding man. He attends church regularly. His business associates view him as a man who honors his financial obligations and who has good moral character. Mr. Dowd does not recall serving alcoholic beverages to William Esler and Kelly Heatherman on November 5, 1982. There was a crowd of customers near the bar at the time, and he was helping the bartender serve drinks as quickly as possible. Nevertheless, in his haste, he violated the Village Zoo policy. He served alcoholic beverages to two youthful-looking persons whose age was difficult to determine, without inquiring as to their age or checking their identification. There is no evidence that he knowingly and intentionally sold alcoholic beverages to underaged persons. (Two sentences contained in the Recommended Order at this place, were deleted as such constitute conclusions of law, not of fact). Although there was evidence that the two underaged persons had been served alcoholic beverages at the Village Zoo prior to and after November 5, 1982, it was not shown that Mr. Dowd served them or that (as one of the managers) he was culpably responsible.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Village Zoo's application to change corporate officers be granted. DONE and ENTERED this 29th day of June, 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 29th day of June, 1983.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the stipulations of the parties, the documentary evidence presented and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent, Ceola Virginia Cutliff is the holder of Alcoholic Beverage License No. 23-06844, Series 2-COP, for a licensed premises known as Club Night Shift, located at 6704 N.W. 18th Avenue, Miami, Dade County, Florida. On or about September 18, 1987, Division of Alcoholic Beverages and Tobacco (DABT) Investigators R. Campbell, R. Thompson and C. Houston entered the licensed premises as part of an ongoing narcotics task force investigation. An individual named "Frances" was on duty at the bar. The investigators observed Frances sell what appeared to be narcotics to several patrons on the licensed premises. At approximately 7:50 p.m., Investigator Houston approached Frances and asked to purchase narcotics. Frances and Investigator Houston then went to the rear of the bar where Frances sold 2 pieces of "crack" cocaine to Investigator Houston for $10.00. Approximately fifteen minutes later, Investigator Campbell asked Frances if he could purchase narcotics. Frances presented a piece of rock cocaine which Investigator Campbell purchased for $5.00. This transaction took place in plain view of other individuals in the licensed premises. Frances, upon making a sale, would take the money and give it to a black male called "Spider" a/k/a Arthur Dorsey. Spider would then retain the money. On September 19, 1987, Investigators Houston and Thompson again entered the licensed premises known as Club Night Shift. On duty that night, was a black female known as "Josephine". Spider was also on the licensed premises positioned in the D.J.'s booth, apparently trying to fix a speaker. Houston and Thompson had observed a black male, named "Gary", exchanging an unknown substance for money with various individuals, immediately outside the licensed premises. Gary, upon receiving money in exchange for the unknown substance, would go into the licensed premises and hand the money to Spider. Later that evening, Investigator Houston noticed that Spider had a brown paper bag in his hand. Gary and Spider proceeded to the bathroom on the licensed premises. After exiting the bathroom, Gary left the premises and Spider went behind the bar and began counting a large amount of money onto the counter of the bar. Spider placed the money in his back pocket. Investigator Thompson then inquired whether Spider could sell him some crack cocaine. Spider acknowledged that he could and proceeded with Thompson to the rear of the bar, where Spider sold Thompson 20 pieces of rock cocaine for $100.00. On September 22, 1987, Investigators Houston and Thompson again entered the licensed premises known as Club Night Shift. Bartender Josephine-was on duty at that time along with another black female known as "Niecey". When the investigators inquired as to the whereabouts of Spider, Niecey replied that "he went home to cook up the stuff because they were very low on supply." Niecey reiterated the above statement on numerous occasions when individuals would enter the bar searching for Spider. At approximately 10:30 p.m., Spider appeared on the licensed premises with a brown paper bag in his possession. Patrons that had been waiting outside the premises came inside and Niecey locked the doors to the front and rear exits of the bar. Spider went to the D.J.'s booth and pbured the contents of the paper bag onto the counter inside the booth. The bag contained approximately 200 small zip-lock bags containing suspected crack cocaine. The patrons who had been waiting outside for the arrival of Spider then proceeded to line up in front of the D.J.'s booth in order to make purchases. Niecey would take the money from the individual patrons and Spider would deliver the crack cocaine. Investigator Houston got in line and upon arriving at the booth, purchased 20 packets of crack cocaine from Spider in exchange for $100.00. These transactions took place in plain view on the licensed premises. On September 23, 1987, Investigators Houston, Thompson and Campbell entered the licensed premises known as the Club Night Shift. The barmaid on duty was Josephine. Spider was positioned in the D.J.'s booth making sales to patrons of what appeared to be crack cocaine. Investigator Campbell walked over to the D.J.'s booth and asked to purchase ten (10) pieces of crack cocaine from Spider. Approximately 200 zip-lock packets of suspected crack cocaine were positioned in front of Spider. Spider motioned for Campbell" to pick them out." Campbell then picked out ten (10) packets in exchange for $50.00 which he gave to Spider. This transaction occurred in plain view of other individuals on the licensed premises. Before leaving Spider went behind the bar, obtained a .357 magnum pistol, placed it inside his pants and exited the premises. On September 29, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. The bartender on duty was Josephine. Shortly after the investigators arrived, Spider appeared on the premises and went behind the bar where he took a pistol from inside his pants and placed it under the bar counter. Spider then removed a brown paper bag from under the bar counter and went to the D.J. s booth. Investigator Thompson proceeded to the D.J.'s booth and asked to purchase two (2) large pieces of crack cocaine. Spider reached into the bag and gave Investigator Thompson two (2) large pieces of crack cocaine in exchange for $100.00. On October 3, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. Investigator Campbell approached an unknown black male who Campbell had seen selling narcotics on prior occasions. Campbell made inquiries relative to the purchase of cocaine and the unknown black male indicated that he could sell Campbell crack cocaine. The unknown male then gave two five dollar ($5.00) pieces of crack cocaine to Investigator Campbell in exchange for $10.00. This transaction took place in plain view on the licensed premises. On October 6, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. Shortly after the investigators arrived, they observed Spider on the premises selling crack cocaine to patrons from the D.J.'s booth. Subsequently, Investigator Thompson went to the D.J.'s booth and asked to purchase twenty (20) pieces of crack cocaine. In response thereto, Spider left the licensed premises and proceeded to a pickup truck parked outside. Spider then retrieved a brown paper bag from the vehicle, returned to Investigator Thompson and handed him twenty (20) pieces of crack cocaine in exchange for $100.00. The substance purchased on this occasion was laboratory analyzed and found to be cocaine. The Respondent licensee admitted to being an absentee owner. The Respondent did not maintain payroll, employment or other pertinent business records. The licensee was aware that drugs were a major problem in the area surrounding the premises and that drug transactions were known to take place immediately outside of the licensed premises. The licensee did nothing to prevent the incursion of narcotics trafficking onto the licensed premises. The licensee, CeoIa Cutliff, is engaged to Arthur Dorsey. Ms. Cutliff gave Mr. Dorsey a key to the premises and knew or should have known that he was operating in the capacity of a manager on the licensed premises. Josephine, the bartender generally on duty, referred to Mr. Dorsey as "boss man" and Mr. Dorsey directed her activities in the licensed premises. Mr. Dorsey a/k/a Spider utilized the licensed premises as if they were his own and was operating in the capacity of a manager at the Club Night Shift.
Recommendation Based upon the foregoing, it is recommended that Respondent's beverage license 23-06844, Series 2-COP, located in Miami, Dade County, Florida, be revoked. DONE and ORDERED this 12th day of November, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 12th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4482 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in substance in Finding of Fact 1. 2. Adopted in substance in Finding of Fact 2. 2. (Petitioner has two paragraphs numbered 2) Adopted in substance in Finding of Fact 3. 3. Adopted in substance in Finding of Fact 4. 4. Adopted in substance in Finding of Fact 5. 5. Adopted in substance in Finding of Fact 6. 6. Adopted in substance in Finding of Fact 7. 7. Adopted in substance in Finding of Fact 8. 8. Adopted in substance in Finding of Fact 9. 9. Adopted in substance in Finding of Fact 10, 11 & 12. Rulings on Proposed Findings of Fact Submitted by the Respondent (None Submitted). COPIES FURNISHED: W. Douglas Moody, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 R. Scott Boundy, Esquire 901 E. Second Avenue Miami, Florida 33132 Honorable Van B. Poole Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Bell, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Daniel Bosanko Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue This is a case in which the Petitioner seeks to suspend, revoke, and/or take other disciplinary action against the Respondent's alcoholic beverage license. The primary grounds for the proposed disciplinary action are that the licensee has permitted patrons on the licensed premises to sell cocaine on numerous occasions in violation of various statutory provisions. The specific allegations are set forth in a Notice To Show Cause dated February 27, 1989. An Emergency Order Of Suspension was served on the Respondent on February 27, 1989. The Respondent requested an emergency hearing, which was conducted on March 7, 1989. Both parties offered evidence at the hearing. Following the hearing the parties requested and were allowed until March 17, 1989, within which to file their proposed recommended orders. The Petitioner filed a timely proposed recommended order. The Respondent has not filed any post-hearing documents. The proposed findings of fact submitted by the Petitioner are specifically addressed in the appendix to this recommended order.
Findings Of Fact Based on the stipulations of the parties and on the evidence received at the final hearing, I make the following findings of fact: The Respondent, Ocean Drive Hotel Corporation, d/b/a/ Ocean Haven Restaurant, is the holder of Alcoholic Beverage License Number 23-3568, Series 2-COP, for a licensed premises known as Ocean Haven Restaurant, which is located at 155 Ocean Drive, Miami Beach, Dade County, Florida. The licensed premises are located in a neighborhood which is somewhat less than wholesome; a neighborhood in which there is a substantial amount of illegal drug related activity. It is a neighborhood in which it is not uncommon for police officers to observe people who have been previously arrested for drug violations. The Respondent corporation owns the licensed premises, as well as the hotel premises of which the licensed premises are a part. The Respondent corporation is owned by Mr. Heriberto Velasco. Mr. Velasco is the president of the Respondent corporation and he is the manager of both the hotel and the restaurant businesses. Mr. Velasco lives in the hotel with his wife, his mother, and one of his sons. Mr. Velasco takes most of his meals in the restaurant which comprises the licensed premises, and usually visits the licensed premises at least three times a day for that purpose. There is no evidence that he regularly spends any other time supervising activities in the restaurant. There are four employees in the restaurant that comprises the licensed premises. Two of those employees are Gloria E. Berlioz and Antonia Rodriguez de Alcina. The latter is also known by the name of Nora. Ms. Berlioz and Ms. Alcina have both been employees on the licensed premises for a year or two. Ms. Alcina is employed as a waitress. Ms. Berlioz is employed as a cook. During the course of an undercover investigation during the months of January and February of 1989, the following transactions involving controlled substances took place within the licensed premises: On January 10, 1989, a patron known as Loraine sold cocaine to Investigator Huguet. On January 18, 1989, a patron named Roberto Cantero sold cocaine to Investigator Huguet. On January 19, 1989, an unknown white Latin male patron sold cocaine to a patron named Tommy. On January 25, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. On January 26, 1989, an unknown Latin male patron sold cocaine to Investigator Huguet. On February 6, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. On February 7, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. On February 10, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet in two separate transactions. On February 10, 1989, a patron named Roberto Cantero also sold cocaine to Investigator Lerra. On February 17, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet, in two separate transactions. On February 17, 1989, a patron named Roberto Cantero also delivered cocaine to an unknown white male patron. On February 22, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. During the course of the vast majority of the drug transactions described in the preceding paragraph, the people involved in the transactions discussed the subject of drug transactions in normal conversational tones of voice. During the majority of those conversations, either Ms. Berlioz or Ms. Alcina was standing close enough to have heard the conversations. During some of the conversations, Ms. Berlioz or Ms. Alcina was standing immediately on the other side of the lunch counter, within two or three feet from the conversations. During the course of the vast majority of the drug transactions described in Paragraph 5, above, the drugs involved in the transactions were openly displayed on the table top or on the counter top in front of the participants to the transactions. In each of the transactions involving purchases by Investigator Huguet, the investigator attempted to be obvious about what he was doing by holding the drugs in front of his face to inspect them before putting the drugs in his pocket. During the vast majority of those transactions, Ms. Berlioz or Ms. Alcina was standing close enough to have observed the transactions. During some of the transactions, Ms. Berlioz or Ms. Alcina was standing immediately on the other side of the lunch counter within two or three feet from the drug transactions. One of the drug transactions took place while Mr. Heriberto Velasco was standing several feet away. All of the drug transactions described in Paragraph 5, above, took place within the licensed premises during business hours when employees and patrons were present on the licensed premises. None of the employees ever called the police or asked any of the parties to the drug transactions to leave the licensed premises. Mr. Heriberto Velasco was aware that the licensed premises are located in a neighborhood in which there is a high level of illegal drug activity. Nevertheless, he did not take any special precautions to prevent or detect drug activity on the licensed premises other than to tell the employees to let him know if they saw any drug activity. Mr. Heriberto Velasco has never asked the Division of Alcoholic Beverages and Tobacco for assistance or suggestions with respect to preventing or eliminating drug activity on the licensed premises, even though the Division of Alcoholic Beverages and Tobacco advises all licensees of the availability of such assistance. Mr. Heriberto Velasco did not have actual knowledge that drug transactions were taking place on the licensed premises. He is opposed to drug trafficking and he has not knowingly permitted sales of drugs in his hotel or on the licensed premises. He has instructed his employees in the hotel and in the restaurant to call him if they observe any drug related activity so that he can throw out anyone involved in such activity. He has thrown people out of the hotel when he suspected they were involved in drug related activities. The employees in the licensed premises never told him about any drug related activity on the premises. Mr. Velasco never observed any activity on the licensed premises that he thought was drug related activity. Mr. Velasco does not know what crack cocaine looks like. Mr. Eric Velasco is the 20-year-old son of Mr. Heriberto Velasco. The son lives at the hotel with his parents and helps with the management of the hotel and restaurant to the extent he can between going to college and working at another near-by job. Mr. Eric Velasco has never observed any activity in the licensed premises that appeared to him to be drug related activity. He does not know what crack cocaine looks like. In brief summary, the vast majority of the drug transactions described in Paragraph 5, above, took place in plain view within the licensed premises. The open exchanges of drugs and money in conjunction with the open conversations about drug transactions demonstrate a persistent pattern of open and flagrant drug activity. The subject drug transactions were sufficiently open that they would have been noticed by a reasonably diligent licensee.
Recommendation On the basis of all of the foregoing, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a final order in this case revoking the Respondent's alcoholic beverage license number 23-3568, series 2-COP, for the premises located at 155 Ocean Drive, Miami Beach, Dade County, Florida. DONE AND ENTERED this 19th day of April, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1096 The following are my specific rulings on all of the proposed findings of fact submitted by all parties. Findings proposed by Petitioner Paragraph 1: Accepted. Paragraph 2: Rejected as subordinate and unnecessary details. Paragraph 3: Rejected as constituting subordinate and unnecessary details. Further, some details proposed in this paragraph are not supported by clear and convincing evidence. Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19: Accepted in substance, with many subordinate and unnecessary details omitted. Paragraph 20: Rejected as irrelevant. Paragraph 21: Accepted in substance. Findings proposed by Respondent (None) COPIES FURNISHED: Katherine A. Emrich, Esquire Assistant General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Gino P. Negretti, Esquire 44 West Flagler Street Miami, Florida 33130 Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue This is a license discipline case in which the Division of Alcoholic Beverages and Tobacco seeks to suspend, revoke, and otherwise take disciplinary action against the Respondent and its license on the basis of allegations that the Respondent has violated Section 561.29(1)(a), Florida Statutes, by permitting patrons to engage in illegal activities on the licensed premises and by allowing the licensed premises to be used for the illegal keeping, selling, or delivery of controlled substances. The Respondent contends that no disciplinary action should be taken because the Respondent has qualified as a "responsible vendor," and has taken reasonable steps to attempt to prevent the conduct complained of in the Notice To Show Cause.
Findings Of Fact At all times relevant and material to this proceeding, a corporation named 3673 Bird, Inc. (hereinafter referred to as "the Respondent corporation"), has been the holder of alcoholic beverage license number 23-01224, series 4-COP, for licensed premises knows as Uncle Charlie's, which premises are located at 3673 Bird Road, Miami, Dade County, Florida. The Respondent is owned by Robert Sloate, who is also the sole officer of the Respondent corporation. Mr. Sloate does not take an active part in the day-to-day management of the licensed premises. Mr. Sloate makes only rare or occasional visits to the licensed premises. During November of 1991 and during the first few days of December of 1991, Mr. Sloate was hardly ever on the licensed premises. Mr. Sloate did not have personal knowledge of the events described in Paragraphs 5, 6, and 7 of these Findings of Fact. The business of the licensed premises is managed by a group of four managers. The Respondent corporation has a total of twenty-six employees, including the four managers. The Respondent corporation has performed the actions necessary to qualify as a "responsible vendor" within the meaning of Section 561.705, Florida Statutes, as amended by Chapter 91-60, Laws of Florida. 1/ Those actions include training and instruction sessions for managers and employees, meetings of employees, and the posting of signs to discourage underage sales and illegal activity involving controlled substances. The licensed premises were also equipped with TV cameras that cover both doors, the front bar, and the back bar. However, the TV cameras do not make a tape recording of what they cover, and there is no evidence that the TV monitors are watched by employees of the Respondent corporation on any regular basis. During the course of an undercover investigation that began on or about November 13, 1991, and continued until the licensed premises were raided on December 6, 1991, the following transactions involving controlled substances took place within the licensed premises: On or about November 14, 1991, a patron known as Mark sold two baggies, each containing approximately one-half gram of cocaine, to a confidential informant who was cooperating with the undercover investigation. 2/ On or about November 14, 1991, a patron known as Gus sold cocaine to a confidential informant who was cooperating with the undercover investigation. On or about November 14, 1991, a patron known as Mark sold cocaine to Detective Bales. (d) On or about to Detective Rivera. November 15, 1991, a patron known as Sergio sold cocaine (e) On or about Agent Lopez. November 15, 1991, a patron known as Clint sold cocaine to (f) On or about to Detective Bales. November 15, 1991, a patron known as Sergio sold cocaine (g) On or about Detective Bales. November 15, 1991, a patron known as Mark sold cocaine to (h) On or about Detective Rivera. November 15, 1991, a patron known as Mike sold cocaine to (i) On or about to Agent Lopez. November 15, 1991, a patron known as Sergio sold cocaine (j) On or about November 15, 1991, a patron known as Mike sold cocaine to Detective Fernandez. On or about November 21, 1991, a patron known as Sergio sold cocaine to Detective Bales. On or about November 21, 1991, a patron known as Sergio sold cocaine to a confidential informant who was cooperating with the undercover investigation. On or about November 22, 1991, a patron known as Sergio sold cocaine to Agent Lopez. Or or about November 22, 1991, a patron known as Wesley sold cocaine to Detective Bales. On or about November 22, 1991, a patron known as David sold cocaine to a confidential informant who was cooperating with the undercover investigation. On or about November 22, 1991, a patron known as Clint sold cocaine to Agent Lopez. On or about December 4, 1991, a patron known as Clint sold cocaine to Agent Lopez. On or about December 4, 1991, a patron known as Charles Garcia sold cocaine to Detectives Villanueva and Feria. The vast majority of the drug transactions described in the preceding paragraph were conducted in an open and casual manner, with no effort by either party to conceal the transaction. Most of the drug transactions described above took place when the licensed premises were quite crowded and noisy, which would have made it difficult for some of the transactions to be noticed by employees of the Respondent corporation. However, many of the transactions took place near employees of the Respondent corporation, and from the open nature of the transactions, it should have been obvious to the employees of the Respondent corporation what was going on. The flagrant nature of the illegal drug transactions taking place in the licensed premises during the period of the undercover investigation is illustrated by the following: The patron Sergio, who made several sales of cocaine to the undercover police officers and to the confidential informant, was so flagrant about his illegal activities that he carried a tambourine with him and would shake the tambourine to advise all who were interested that he had cocaine available for sale. At least one of the managers was aware of Sergio's tambourine shaking, because he testified that it annoyed him. It was obvious to anyone who troubled to look that Sergio was dealing in something, because after he shook his tambourine there would be several people who would approach him, hand him money, and receive from him small plastic baggies containing white powder. Sergio's cocaine sale activity was so casual that on at least one occasion he took a twenty dollar bill and delivered a baggie containing cocaine without even being specifically asked for cocaine. The casual nature of Sergio's activity is also indicated by the fact that he was not concerned about being asked for cocaine in the presence of two other people, and he carried numerous baggies of cocaine in his pockets. The patron Charles Garcia attempted to promote the ingestion of cocaine inside the licensed premises after he delivered cocaine to Detectives Villanueve and Feria. The undercover police officers observed numerous transactions during which a patron would approach another patron, deliver money to the other patron, and then receive a small plastic baggie from the person who took the money. These observations included the observation of numerous such transactions involving Sergio (the tambourine man) and several involving the patron known as Mike. On one occasion during the investigation, Detective Rivera observed a patron exiting the restroom with white powder beneath his nose. When Detectives Villanueva and Fiera were purchasing cocaine from Charles Garcia on December 4, 1991, a patron named Ray asked Detective Fiera to join him in the restroom. In the restroom, Ray ingested a white powder that appeared to be cocaine in front of both Detective Fiera and the restroom attendant. All of the drug transactions described in Paragraphs 5, 6, and 7 of these Findings of Fact took place within the licensed premises during business hours, when employees and patrons were present on the licensed premises. None of the employees ever called the police or asked any of the parties to the drug transactions to leave the licensed premises. The Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, and the Metro-Dade Police Department executed a raid on December 6, 1991, at the licensed premises. After the raid was completed, thirty-four packets of unclaimed cocaine were found on the floor, as were several pills and several packets of marijuana. An unclaimed pen knife with cocaine on the tip was also found. On the night of the raid, one of the bartenders tossed a baggie of cocaine over the bar. That bartender was arrested for possession of cocaine. On the night of the raid, Sergio was found to be in possession of three baggies of cocaine, as well as other controlled substances. The investigative expenses incurred in the course of the undercover investigation of the Respondent corporation's premises totaled one thousand one hundred forty-eight dollars ($1,148.00). In brief summary, the vast majority of the drug transactions described in Paragraphs 5, 6, and 7 of these Findings of Fact, took place in plain view. The open exchanges of drugs and money, the casualness with which those selling drugs on the licensed premises went about their business, and the frequency of the drug transactions, all demonstrate a pattern of flagrant, persistent, repeated, and recurring violations. The nature and frequency of the subject drug transactions were such that they would have been noticed by a reasonably diligent licensee.
Recommendation On the basis of all of the foregoing, it is recommended that the Division of Alcoholic Beverages issue a final order in this case revoking the Respondent corporation's alcoholic beverage license number 23-01224, series 4-COP, for the premises located at 3763 Bird Road, Miami, Dade County, Florida, and imposing an administrative fine in the total amount of $18,000.00. RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of December 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of December 1991.
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 During times material hereto, Respondent, Boyd's Service, Inc., was under the control and operation of its owner, Leslie Boyd. Respondent holds Alcoholic Beverage license no. 62-03664, series 2-APS, for a premises known as Boyds Service located at 1500 22nd Street South in St. Petersburg, Pinellas County, Florida. Commencing on or about January 12, 1990, Petitioner, the Division of Alcoholic Beverages and Tobacco, engaged in a cooperative effort with the St. Petersburg Police Department by conducting a "sting" investigation of eight businesses in the south St. Petersburg area to determine if the owners of such businesses were trafficking in stolen property. Investigators Craig Parsons, Ira McQueen, Priscilla Turner, and David Henry, all employees of Petitioner and Detectives Glen Henry, Luke Williams, Johnny Harris, Tom Kewin, and Rod Adams of the St. Petersburg Police Department participated in the sting investigation. On or about January 12, 1990, Detective Harris, while monitored by Investigator Parsons and Detective Henry, entered Respondent's licensed premises in an undercover capacity as part of the sting investigation and Detective Harris discussed with Respondent his desire to purchase property that Detective Harris asserted was stolen, to wit, several cartons of "Kool Kings" cigarettes. Respondent expressed a willingness to buy stolen property from Detective Harris but that he needed Newport cigarettes. Detective Harris indicated to Respondent that he would return on a later date with stolen Newport cigarettes for Respondent to purchase. On or about January 19, 1990, Detective Harris, while monitored by investigator Parsons and Detective Williams, drove to Respondent's premises accompanied by Investigators McQueen and Turner as part of the sting investigation. Detective Harris parked in front of Respondent's premises and exited his vehicle. Detective Harris approached Respondent and related "I have five cartons of Newport 100's for you which I stole the other day". Respondent asked Detective Harris where the merchandise was and inquired if he was "wired". Detective Harris exited the premises, returned to his vehicle, removed the cigarettes that he asserted were stolen and reentered Respondent's business. Respondent handed Detective Harris $30.00 in exchange for the cigarettes. On or about January 24, 1990, Detectives Harris and Williams, while monitored by Investigator Parsons, Detectives Henry and Kewin, reentered Respondent's licensed premises as part of the sting investigation. While there, Detective Harris introduced Respondent to Detective Williams identifying him as "Pete" and further identifying him as his buddy who works at Pace Warehouse who was stealing the property which Detective Harris was selling to Respondent. Detective Harris told Respondent that he had in his vehicle which was parked in front of Respondent's business, five cartons of Kool King cigarettes and five cases of Colt 45 beer which he asserted to be stolen. Respondent asked to see the merchandise whereupon they exited the licensed premises and the detectives opened the trunk of their vehicle to display the "stolen" merchandise. Respondent agreed to "buy it all" and directed the detectives to drive their vehicle around to the back of his premises into an attached garage area. A discussion ensued from which Respondent admitted that he had previously been arrested of dealing in stolen property and if they (the detectives) were "setting him up" he would kill them. Respondent directed the detectives to unload the property from their vehicle into the garage area. While doing so, Respondent walked to the front of the store and returned with the money in exchange for the merchandise. On or about January 29, 1990, Detective Williams, while monitored by Detectives Henry and Kewin, reentered Respondent's licensed premises as part of the ongoing sting investigation. While there, Detective Williams approached Respondent and related "I kept you in mind" to which Respondent related "I think I know what you're talking about". Detective Williams then stated to Respondent "I stole some more stuff from Pace". Respondent then asked to see the merchandise whereupon the Detectives told Respondent that they had a "trunk full of stuff, they don't even know it's gone yet". Detective Williams related having about nine cases of beer and some cigarettes which he agreed to let Respondent purchased for $60.00. Respondent agreed to make the purchase whereupon Detective Williams and Respondent exited the licensed premises and Detective Williams opened the trunk of his vehicle to display the merchandise. Respondent directed Detective Williams to bring the beer into the licensed premises and Respondent removed two cartons of Newport 100's and two cartons of Kool cigarettes which he (Respondent) carried into the licensed premises. Upon reentering the licensed premises, Detective Harris and Respondent negotiated a price for the merchandise. Respondent tendered Detective Williams $36.00 from the cash register in exchange for the "stolen" merchandise. Before leaving, Detective Williams advised Respondent that he would have to slack off from stealing from Pace because he had taken quite a bit over the past week. Respondent requested that Detective Williams bring him some cigarettes and some more Old Milwaukee beer concluding that he could not buy what he could not sell and that he still had some Colt 45 left from his last purchase. On or about January 30, 1990 Officer Adams entered Respondent's licensed premises on two separate occasions and purchased two cans of Colt 45 beer, two packs of Newport 100's and four packs of Kool cigarettes. These items were turned over to Detective Henry who secured their custody until the hearing herein. Upon examination, it is determined that three of the four packs of Kool cigarettes had an Indian tax exempt stamp affixed and the two packs of Newport 100's had an extra pin dot affixed to the state tax seal. These were specific identifying marks which the detectives had affixed to identify property which they sold to Respondent during the course of the sting investigation. On or about March 29, 1990, Detectives Williams, Henry, Kewin and Investigators Parsons and Merrill reentered the licensed premises and arrested Respondent. Respondent was transported to the St. Petersburg Police Department where his Miranda rights were explained to him. He was thereafter interviewed by Detective Henry and Investigator Merrill. During the course of the interview, Respondent was allowed to listen to a cassette tape which contained a recording of a conversation which took place on the licensed premises on January 19, 1990 between Respondent and Detective Harris. In that tape, Respondent is heard agreeing to purchase the stolen property. Respondent admitted it was his voice on the tape and confessed to Detective Henry and Investigator Merrill that he had previously purchased property which was allegedly stolen from them on three different occasions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent's Alcoholic Beverage license no. 62-03664, series 2- APS, be revoked. RECOMMENDED this 25th day of April, 1991, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1991.
The Issue This case concerns the issue of whether Respondent's beverage license should be suspended, revoked or otherwise disciplined for permitting prostitution activity on his licensed premises. At the formal hearing the Petitioner called as witnesses John Harris, Kelvin Davis, Carlos Bauxalli, Lewis Terminello, Hugo Gomez, Louis Viglione, Keith Bernard Hamilton, and Alfonso Scott Julious. Respondent called as witnesses Isaac Dweck, Gary Arthur, Irene Madden, Collins Jones, Mary Scott, Debbie Heenan, Judy Pearson, Joe E. Clements, Cecil Rolle, and the Respondent himself, Eddie Lee Pittman. Petitioner offered and had admitted a videotape which was viewed during the hearing. Respondent offered and had admitted one exhibit. Petitioner also offered a composite exhibit containing police reports relating to the licensed premises for the years 1981 and 1982. That composite exhibit was admitted as hearsay to corroborate the testimony of the police officers relating to the reputation of the licensed premises. These police records were of very limited probative value and no finding of fact was based upon these records. Neither party submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer.
Findings Of Fact At all times material to this proceeding the Respondent, Eddie Lee Pittman, was the holder of beverage license No. 23-371, Series 2-COP. The license is issued to the licensed premises at 1772 N.W. 79th Street, Miami, Dade County, Florida, and was originally issued to Respondent on October 6, 1965. On the evening of March 22, 1983, Beverage Officer Kelvin Davis visited the licensed premises, Eddie's Dive Inn, in an undercover capacity to investigate possible prostitution activity in the licensed premises. Officer Davis was accompanied by Beverage Officer Eddie Bauxalli. After entering the licensed premises Officer Davis was approached by a white female named Elnora Moore who engaged him in conversation. The conversation led to a discussion of voter registration cards and Ms. Moore stated that a voter registration card could get you out of jail on a misdemeanor charge. Officer Davis asked why she needed a card for that purpose and Ms. Moore said because of solicitation. She then asked Officer Davis if he would like to be solicited and asked how much money he had. He responded that he had twenty dollars and she said that would get him a "straight." "Straight" is slang or street language for sexual intercourse. He agreed to the price but told her he also had a friend (Officer Bauxalli). Ms. Moore offered to service both men for $100. Officer Davis and Officer Bauxalli agreed to this offer and the three of them prepared to leave. The conversation between Ms. Moore and Officer Davis took place next to the bar where the officers were seated. This was approximately three to five feet from the cash register where the bartender on duty was working. The conversation took place in a normal tone of voice. As Officers Davis and Bauxalli and Ms. Moore began to leave, a white female named Peggy Schultz yelled across the bar to Officer Bauxalli and asked where he was going. Officer Bauxalli yelled back that he was going to have a good time. In response, Ms. Schultz yelled back "How can you have a good time without a date?" Officer Bauxalli responded that he would figure something out. At this point Ms. Schultz walked over to Officer Bauxalli. Ms. Schultz asked Officer Bauxalli if he wanted a "date" and he asked what is a "date." She responded that a "date" is a "straight" for $20 or a "straight" and a "blow job" for $25. He agreed to a "date" and Ms. Schultz then told him to drive around to the back and she and Ms. Moore would meet them at the back door. She also stated that the owner did not like the girls to go out the front door. Officers Bauxalli and Davis then left the bar, drove around to the back door of the licensed premises and picked up Ms. Moore and Ms. Schultz, who were waiting just inside the back door of the lounge. While Officers Bauxalli and Davis were in the licensed premises, the bar was pretty crowded and there was a lot of noise from people talking. At the time Ms. Schultz solicited Officer Bauxalli, she spoke in a normal tone of voice while they stood approximately four or five feet from the cash register on the bar. Ms. Schultz was dressed in a low-cut blue silky dress that was made of a material which you could easily see through. She was wearing only panties underneath the dress. The owner, Mr. Pittman, was observed in the licensed premises on the evening of March 22, but there was no evidence that he observed or overheard any of the discussions between the two beverage officers and Ms. Schultz and Ms. Moore. On the evening of September 17, 1983, at approximate1y. 10:A5 p.m., Beverage Officer Louis J. Terminello went to the licensed premises in an undercover capacity. Immediately upon entering the licensed premises he was approached by a white female named Michelle Orfino. The bar was pretty crowded and there were a number of females in the bar and poolroom area who by their dress appeared to be prostitutes. These women were mingling with the men at the bar and in the poolroom area. A number of couples were exiting through the back entrance. When Ms. Orfino approached Officer Terminello, she walked up to him and asked if he was looking for a "date." He asked her what a "date" was and she said "a blow job." She then asked if he wanted one and Officer Terminello responded "yes." She told him the price would be $20 plus $5 for the room. As they had been talking Officer Terminello, accompanied by Ms. Orfino, walked into the poolroom area. After agreeing to the price, Officer Terminello took Ms. Orfino by the arm and started to walk out the front door of the lounge. She stopped him and said that they had to use the back door because Eddie does not allow them to leave through the front door. She then told him to drive around back and Officer Terminello responded that his car was just outside the back door. She then walked with him out the back entrance and into the parking lot. As they walked to his car Officer Terminello observed the Respondent, Eddie Pittman, in the parking lot. After driving away, Officer Terminello placed Ms. Orfino under arrest. Ms. Orfino was dressed in a very low-cut latex body suit. For at least three nights prior to September 17, Officer Terminello, while on surveillance, had observed a continuous pattern of a patron entering the bar, coming back out and driving his car to the rear entrance. A woman would then come out the back door, get in the car and they would drive away. Twenty minutes or so later the car would come back and the girl would get out and go back in. After the arrest of September 17, Officer Terminello returned to the bar in the early morning hours of September 18 to arrest two other women for prostitution. The Respondent had not been advised of the arrests on September 17. On the evening of September 15, 1983, Beverage Officer Louis Viglione went to the licensed premises, Eddie's Dive Inn. After entering the licensed premises he took a seat at the bar near the rear entrance. Shortly after entering, he was joined by two black females named Veronica and Angie. He purchased a beer for each of the two women and the three of them engaged in conversation about good times, good loving, and Pink House. The Pink House is a boarding house in the area where the licensed premises is located and is used by prostitutes for "dates." A "date" is a slang or street term used commonly by prostitutes to refer to sexual intercourse or other sexual acts for pay. During this conversation, Veronica stated that one hour with her would cost $40 or $50 and Angie stated that she charged $100 an hour. As an excuse, Officer Viglione then stated that he did not have enough money because he wanted two women at once. He remained in the lounge approximately one more hour and left. On this particular evening Veronica was wearing a short white dress and Angie was wearing a blue print dress with white stockings. Both were dressed in what Officer Viglione described as normal dress. Several other women in the lounge were dressed in a very provocative manner and appeared by their dress to be prostitutes. The lounge was approximately 3/4 full of patrons, but it was not particularly noisy or boisterous. There were also several women outside the front and rear entrances of the licensed premises who appeared to be prostitutes. The area where the licensed premises is located is an area which has a visible concentration of prostitutes and has a reputation as an area where prostitution is prevalent. At approximately 9:30 p.m. on September 16, 1983, Beverage Officer Keith Bernard Hamilton entered Eddie's Dive Inn. Upon entering the lounge, Officer Hamilton took a seat at the west end of the bar. There were approximately 40 or 50 male patrons in the lounge and at least 30 women. The women were scantily dressed in very revealing clothes and were observed by Officer Hamilton to be moving around the bar stopping and talking with the men. Several of the women left the bar after talking to one of the men who also left the bar. While seated at the bar, Officer Hamilton was approached by a young black female named Anna. Anna had been talking to a white male seated next to Officer Hamilton. She asked Officer Hamilton what he was interested in tonight. He asked what she had and she asked if he wanted to fuck. She also stated that for $35 plus $5 for the room she would give him a "suck and fuck." He said he would wait for a while and Anna left but returned several times during the evening. After Anna left, another woman walked up to Officer Hamilton and asked if he dated. He was short with her and she moved over and began talking to the white male seated next to him. A few minutes later, Officer Hamilton went to the bathroom and was stopped by a black female named Carol Lawrence. Ms. Lawrence stated that she needed money and asked if he could help her out. Officer Hamilton asked what did she have and Ms. Lawrence responded "a suck and fuck for $35." Officer Hamilton agreed to this but said he wanted to wait a while. She then left, but approached him at least three more times that evening. On the evening of September 16, 1983, there were three security guards at the licensed premises. They primarily remained outside where they regulated the crowd outside the lounge. One of the guards told one of the females that she shouldn't leave with a guy but should wait inside the rear door. The guard did not object to the woman and man leaving in the man's car. On this particular evening, the Respondent was present at the licensed premises until approximately 11:00 p.m. He was in and out of his office during the course of the evening. On September 17, 1983, at approximately 9:30 p.m. Officer Hamilton returned to the licensed premises, Eddie's Dive Inn. When Officer Hamilton entered the lounge, the Respondent was seated at the bar. The activity in the bar was about the same as the night of September 16, and there was a smaller crowd. There were about 20 women in the bar. These women were walking around the bar talking to the men. There was a man seated next to Mr. Pittman who was being kissed by one of the women. After kissing the man she moved on and began talking to another male patron. Shortly after entering the lounge one of the women in the lounge looked at Officer Hamilton and winked. Later, when Officer Hamilton was in the rear of the lounge near the bathrooms, be observed this same woman standing near the rear entrance. He asked her where she was going and she responded that she would be back. She then offered him a "suck and fuck" for $20 plus the cost of the room. As she walked out the rear entrance Officer Hamilton agreed to the offer. That same evening Officer Hamilton was again approached by Anna whom he had met the previous evening. She asked if he was ready and again told him the price of a "suck and fuck." He agreed and she told him to leave out the front door and she would wait around back. Officer Hamilton left the lounge and drove his car to the rear entrance where Anna was waiting just inside the screened door of the back entrance. On the evening of September 15, 1983, at approximately 9:15 p.m., Beverage Officer Alfonso Scott Julious entered the licensed premises. There were several men seated inside the bar and several women were walking around the bar. The women were dressed casually and some were wearing short dresses which were low cut in the front. After entering the licensed premises Officer Julious observed women from time to time leave the bar with a man and then come back. Each of the women exited through the rear door. At approximately 9:45 p.m. Officer Julious was approached by a white female named Gail Sylvia James. She asked if he wanted a "date" and he said what is a "date." She then said that she would "fuck him and suck him" for $30. He responded that he would be around for a while and would get back to her. Officer Julious left the lounge at approximately 10:30 p.m. During the evening Officer Julious had overheard other men being solicited and observed at least five men leave with women. On this evening Officer Julious considered the women's dress to be casual, nice dresses. Officer Julious returned to the licensed premises at approximately 9:00 p.m. on September 16, 1983. After entering the lounge he was approached by a white female named Patricia. She asked him if he wanted a "date" and he asked "what is a "date?" She then said she would fuck him for $30. Officer Julious responded that he would be around and would get back to her. Some time later in the evening Gail James, whom he had met the previous night, approached Officer Julious and asked if he was ready for a "date." She said she would go half and half, "suck and fuck" for $30. He told her he would be around for a while. Officer Julious was also approached by a woman named Mindy Jo Gelfin, who asked if he wanted a "date." He asked "What is a date?" and she responded "half and half, fuck and suck" for $40. He also did not accept this offer. Officer Julious left the licensed premises at approximately 10:45 p.m. On Saturday, September 17, 1983, Officer Julious returned to the licensed premises at approximately 9:05 p.m. The Respondent, Eddie Lee Pittman, was in the lounge. Immediately after entering the licensed premises, Officer Julious was approached by Mindy Gelfin, who asked if he was ready for a "date." Officer Julious stated that he would be around all night and Mindy said she would come back. Later, Mindy returned and asked if he was ready and he responded "yes." He asked if they could go to the Holiday Inn and she asked if he was a cop. Officer Julious said "Do I look like a cop?" She then asked if she could pat him down. He said "yes" and she patted him down. She then said that she wanted to go in a friend's car. She borrowed the car and drove to the Holiday Inn where she was arrested. At the time of her arrest Mindy Jo Gelfin was residing with Collins Winston Jones and his girlfriend. At the time of the final hearing, Mindy Gelfin was continuing to live at Mr. Jones' residence. Mr. Jones' girlfriend had allowed her to move in. Mr. Jones is the manager of Eddie's Dive Inn. On September 29, 1983, Detective Hugo Gomez of the Metropolitan Dade County Police Department went to the licensed premises, Eddie's Dive Inn. Detective Gomez was accompanied by Detectives Manny Gonzalez and Ray Gonzalez. Detective Gomez stood at the west end of the bar and his two partners sat at the bar next to him. After they ordered a beer, they were approached by a white female named Catrina Gibides. She sat down between the two officers who were seated. She asked what they were doing and told Detective Gomez he looked like a cop. He then pulled up his pants legs to show he was wearing no socks and she said "you can't be a cop" and grabbed his groin. She then began playing with Manny Gonzalez's leg and asked if they wanted a "date." She was wearing a very loose chiffon type outfit and her breasts were barely covered. The officers who were seated had been pretending not to speak English and Ms. Gibides asked Detective Gomez to ask Manny Gonzales if he wanted to go across the street to a motel with her. She said that she would perform intercourse and fellatio for $25 plus $5. She then called over another white female named Lisa Brown, who also began talking about going across the street to a motel. Lisa Brown said her price was $25 plus $5 for the room. They then discussed going in different cars. During these conversations the bar was crowded and Eddie Pittman was in the lounge approximately 8 to 10 feet from where the officers were located. It was pretty loud in the bar. There were also barmaids working behind the bar. Isaac Dweck is a regular patron of Eddie's Dive Inn. He goes there primarily on Sunday afternoons to watch football and shoot pool. He is almost never in the licensed premises after 9:00 p.m. and averages going to the lounge four or five times a month. He has never been solicited for prostitution in the lounge and has never overheard someone else being solicited. Gary Arthur goes to Eddie's Dive Inn two or three times a week and generally leaves some time between 7:30 and 9:00 p.m. Once or twice he has stayed until 11:00 or 12:00 p.m. He has never been solicited for prostitution and has never overheard anyone else being solicited. He has been going to Eddie's Dive Inn for five or six years. The Respondent has a policy against drugs, fighting, solicitation, and profanity and also has a dress code. He employs 11 full-time employees at the lounge and three or four of these employees are security guards who work at front and back doors. The Respondent has a closed circuit television system with cameras on the cash register and pool room area. The screen is in Respondent's office. Over the past 12 years the manager, Collins Jones, has barred 12 or 13 women from the bar after he heard them soliciting in the bar. In the twenty years he has operated Eddie's Dive Inn, the Respondent has barred approximately 20 women from coming into the licensed premises because of prostitution. Once the women are arrested for prostitution, they are barred from the premises. There are signs posted in the bar prohibiting soliciting. Irene Madden works as a barmaid at Eddie's Dive Inn. She has been instructed to not serve known prostitutes and that if she heard someone soliciting she should diplomatically ask them to not do that and inform Mr. Pittman or the manager. Mary Scott works as a barmaid at Eddie's Dive Inn. She has heard women solicit in the lounge for prostitution. She does not have the authority to ask someone who solicits for prostitution to leave the premises. She does have authority to ask people to leave who are in violation of the dress code. In September, 1972, the Respondent was charged in an administrative proceeding against his license with permitting prostitution on the licensed premises. He was also charged criminally with permitting prostitution. Respondent paid a $350 administrative fine and his license was placed on probation for the remainder of the license year. He pleaded guilty to the criminal charge.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered finding the Respondent in violation of Section 561.29, Florida Statutes, and imposing a civil penalty of $1,000 and suspending Respondent's beverage license for a period of ninety (90) days. DONE AND ENTERED this 9th day of November, 1983, at 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 9th day of November, 1983. COPIES FURNISHED: William A. Hatch, Esquire Gary R. Rutledge, Secretary Department of Business Department of Business Regulation Regulation 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Arthur M. Garel, Esquire 40 Southwest 13th Street Miami, Florida 33130 Howard Milan Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
