Findings Of Fact Respondent Mary L. Alexander holds beverage license No. 28-0041, Series 2-COP. Under this license she sells beer and wine at Whisper's Cafe, a business which she has owned and operated for approximately two years in Bunnell, Florida. (Testimony of respondent) Respondent employs a cook and a part-time bartender, who also serves as a disc jockey. The cook works primarily in the kitchen. At around 8:30 P.M., the bartender begins operating the juke box and remains in the dance area of the licensed premises, an area separated by a wall from the rest of the premises. Respondent (or a substitute bartender), works primarily in the bar and pool table area, which is located between the dining and dance areas of the premises. (Testimony of respondent) The evidence establishes, without contradiction, that two of respondent's bartenders committed three separate drug violations on the premises during April and May, 1982. Two violations involved bartender Ronney Locke, one involved bartender Fred Austin. I. Two Drug Violations by Bartender Locke On April 30, 1982, Maria Scruggs, a DABT Beverage Officer, entered Whisper's Cafe in an undercover capacity. Approximately twenty customers were on the premises--four or five were standing at the bar. Officer Scruggs ordered a drink at the bar. Several minutes later, Thomas Alexander, respondent's son, approached her and a conversation ensued. She asked him if he had any marijuana she could buy. He replied that he did not, and then referred the question to bartender Ronney Locke. Mr. Locke, offering to check around the bar, approached Clarence Lorick, a customer, who then delivered a small quantity of marijuana to Mr. Alexander for $5.00. Mr. Alexander, seated at the bar, rolled a marijuana (cannabis) cigarette in his lap and gave it to Officer Scruggs, who then left the premises. The cigarette was rolled in an open manner and in plain view of others on the premises. Respondent was not on the premises during this transaction and was unaware of its occurrence. (Testimony of Scruggs, respondent, P-1) On May 7, 1982, Officer Scruggs reentered the licensed premises in an undercover capacity. She began to talk, separately, with respondent and bartender Locke. She asked Mr. Locke if any cocaine or marijuana was available. He replied that he would check with the other customers for a $5.00 bag of marijuana. He approached Ginnie Lee Caskins a customer, Who then approached Officer Scruggs and handed her a manilla envelope containing marijuana (cannabis). Officer Scruggs said nothing and handed her $5.00. This exchange of money and marijuana took place under the bar and out of view of the other customers on the premises. Although respondent was on the premises, she was not close by and did not see the exchange or overhear the conversation. (Testimony of respondent, Scruggs, P-2) II. Drug Violation by Bartender Austin On May 12, 1982, Alphonso Junious, another DABT Beverage Officer, entered the licensed premises in an undercover capacity. He asked bartender Fred Austin, an employee of respondent, if he knew where he could buy some marijuana. Mr. Austin walked to the door and summoned Clarence Lorick, who then entered the premises. After a brief conversation, Mr. Lorick handed a small quantity of marijuana (cannabis) to Officer Junious, who, in turn, handed him $5.00. This exchange took place in a secretive manner and occurred after respondent had left the premises. She was also unaware of this drug transaction. (Testimony of Junious, respondent, P-3) III. Drug Violation by Respondent DABT also contends that on May 14, 1982, respondent unlawfully aided, counseled, or procured the sale or delivery of marijuana (cannabis) to Officer Junious. Respondent denies it. The evidence, although conflicting, substantiates DABT's contention. On May 14, 1982, Officer Junious reentered the licensed premises in an undercover capacity. He purchased a beer from respondent, who was tending bar. While seated at the bar, he overheard respondent tell an unidentified female patron that she (respondent) had been to a musical concert and had to leave to get something to smoke. Officer Junious, construing this to mean marijuana, said to her, "I could use something to smoke too," or words to that effect. Respondent replied, "Boot got some." (Testimony of Junious) Officer Junious knew who "Boot" (Henry Brown) was, having previously purchased marijuana from him in an undercover capacity. Officer Junious then left the premises, found "Boot" outside, and purchased a small quantity of marijuana (cannabis) from him for $5.00. (Testimony of Junious) These findings are based on the testimony of Officer Junious. Respondent denies that she said "Boot got some" or that she had any conversation with Officer Junious on May 14, 1982. She also denies that she said she could use something to smoke, and states that she does not smoke either tobacco or marijuana. Taking into account her bias and interest in the outcome of this proceeding, the testimony of Officer Junious is more credible and is accepted as persuasive. IV. Respondent's Supervision of the Premises Respondent, periodically, reminded her employees that no marijuana was allowed on the premises. She took no other action to ensure that drug violations would not occur on the premises. (Testimony of respondent On May 27, 1982, arrest warrants were executed by DABT and the licensed premises was searched. No illicit drugs were found on the premises. (Testimony of Scruggs) There is no evidence that marijuana has ever been smoked in the licensed premises. Neither does the evidence support a finding that respondent knew that marijuana had been, or was being, sold or delivered on the premises. The four separate drug violations committed on the licensed premises, and the manner in which they were committed, however, support a conclusion that these violations of law were fostered, condoned, or negligently overlooked by respondent, and they occurred, at least in part, due to respondent's failure to diligently supervise her employees.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license be suspended for a period of 90 days. DONE and ORDERED this 10th day of December,1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1982.
The Issue Whether respondent's alcoholic beverage license should be revoked or otherwise disciplined on the grounds stated in petitioner's Notice to Show Cause, as amended.
Findings Of Fact The Respondent Respondent corporation holds alcoholic beverage license No. 23-00739, Series 4 COP, issued by the DABT, and operates a bar known as Doc Watson's ("the licensed premises") at 4591 Northwest 36th Street, Miami Springs, Florida. Entertainment is provided by female dancers who perform to jukebox music. (Testimony of Harden; P-1, R-1.) As to Count I II. Sale, Use, or Possession of Drugs on the Licensed Premises On November 8, 1981, at approximately 12:30 a.m., undercover Beverage Agent Donald Chastain purchased cocaine for $70 from Mike Pack, a doorman employed by respondent. The sale took place in the storeroom at the east entrance to the west bar on the licensed premises. During the drug transaction, Pack remarked that he "had been turning them [cocaine sales] over like hotcakes- -10 to 12 a day." (Testimony of Chastain.) On November 14, 1981, during the evening hours, Agent Chastain purchased a clear plastic baggie of cocaine (a white powder) for $70 from doorman Pack. The transaction took place, in plain view, at the east entrance to the west bar on the licensed premises. (Testimony of Chastain.) On November 21, 1981, during the evening hours, Agent Chastain again purchased a clear plastic baggie of cocaine for 565 from doorman Pack. The sale took place at the east entrance to the west bar on the licensed premises, and in plain view of Carlos Santana (known as "Manny") , a male patron. (Testimony of Chastain.) On December 11, 1981, during the evening hours, Agent Chastain again approached doorman Pack at the east entrance to the west bar on the licensed premises and offered to buy cocaine. Pack replied that he had none but would try to find some; he then left his post at the bar entrance, walked to the pool table area where he talked with Sonya Olitsky, a female dancer, then returned to Agent Chastain. Doorman Pack then sold a clear plastic baggie containing cocaine to Agent Chastain for 570. (Testimony of Chastain.) On December 21, 1981, during the evening hours, Agent Chastain again approached doorman Pack at the east entrance to the licensed premises and asked to purchase cocaine. Pack replied that he had none but could obtain some; a little later, Agent Chastain approached Pack again, but he still did not have any cocaine available. Doorman Pack then offered to obtain some from another employee on the licensed premises; after Chastain gave him 570, Pack left his post and, a few minutes later, returned and gave Agent Chastain a clear plastic baggie containing cocaine. The drug exchange took place in plain view at doorman Pack's duty station, the east entrance to the bar. (Testimony of Chastain.) On February 10, 1982, doorman Pack, off duty at the time, approached Agent Chastain on the licensed premises and asked if he was looking for cocaine. Chastain said yes; Pack replied that it would cost 570. Chastain then gave him 570 for a white plastic baggie containing cocaine; this transaction occurred at the entrance to the east bar, in plain view of Victor Narin, the on-duty doorman. After the sale, at Pack's request, Chastain brought the cocaine to a bathroom on the premises where Pack ingested a small quantity. (Testimony of Chastain.) On February 15, 1982, during the evening hours, Agent Chastain entered the premises. Doorman Pack asked him if he wanted to buy some excellent cocaine; Chastain agreed and handed him $70 for a clear plastic baggie of cocaine. This transaction took place in plain view at Pack's duty station at the east entrance to the west bar. (Testimony of Chastain.) On February 23, 1982, Agent Chastain met doorman Pack at his duty station at the east entrance to the west bar and asked if he had any cocaine for sale; Pack replied that he had none but sent Ray Patterson, an off-duty doorman, to get Joe Hevia, a patron. Hevia told Chastain that he would need $70 "up- front"; Chastain was reluctant to agree since he didn't know Hevia. Doorman Pack then obtained a clear plastic baggie of cocaine from Benjamin Maples, 2/ a former doorman on the premises, and sold it to Chastain for $70. This transaction took place in plain view at the east entrance to the west bar. (Testimony of Chastain.) As to Count II On December 15, 1981, Agent Chastain approached Dorothy E. Zink, a dancer employed by respondent, and asked if he could buy some cocaine; she agreed. He gave her $70; she directed him to a pay telephone across from the stage area on the licensed premises where he found a small baggie of cocaine in the coin return slot. (Testimony of Chastain.) Later that evening, Agent Chastain asked dancer Zink if she knew where he could get some quaaludes; she agreed to sell him some. He handed her $12, and she told him the quaaludes would be placed in the same coin return slot of the pay telephone used earlier. He proceeded to the pay telephone and found a plastic bag containing four tablets of diazepam. (Testimony of Chastain; P-7.) On January 4, 1982, Agent Chastain approached dancer Zink on the licensed premises and gave her $70 for the purchase of cocaine. After checking elsewhere in the bar, she returned and told him that she could only find one- half a gram for $35. Thereafter, he met her by the pay telephone and, in plain view, gave him a clear plastic baggie containing cocaine. (Testimony of Chastain.) On January 21, 1982, in response to Agent Chastain's inquiry, dancer Zink agreed to sell him cocaine for $70. He slowly counted out $70 while in the stage area of the west bar of the licensed premises and in plain view of several nearby patrons. He placed the money in an address book held by dancer Zink, then ;net her at the pay telephone where she handed him a folded piece of paper containing cocaine. (Testimony of Chastain.) As to Count III On January 26, 1982, Darlene Harper, Melaine Goransky, and Linda Pryor, dancers employed by respondent, exited the west entrance of the licensed premises with purses in hand. They entered a parked vehicle where they removed from one of the purses a marijuana cigarette which they lit and passed between them. (Testimony of Johnson; P-3, P-4.) As to Count IV On February 10, 1982, during the evening hours, Agent Chastain entered the west bar of the licensed premises. Michael Stoodley, the doorman, told him that doorman Pack had some good cocaine for sale. Chastain replied that he had just bought some; Stoodley then asked Chastain to give him some. After Chastain handed him the cocaine, Stoodley entered the storeroom near the east entrance and ingested some. Upon exiting the storeroom, doorman Stoodley handed him a tablet containing methaqualone. (Testimony of Chastain.) When Agent Chastain entered the licensed premises on March 4, 1982, doorman Pack approached him and asked if he wanted to buy some cocaine for $75. Chastain declined but said he wanted to buy some quaaludes. Pack said to contact doorman Stoodley, who was then on duty at the entrance to the east bar. Agent Chastain then proceeded to the entrance and bought four methaqualone tablets from doorman Stoodley for $12. (Testimony of Chastain.) As to Count V On February 23, 1982, Benjamin Maples supplied cocaine to doorman Pack which was, in turn, sold to Agent Chastain on the licensed premises. (See paragraph 9 above.) He was, however, no longer employed by respondent, since he had been fired in October, 1981. (Testimony of Chastain, Harden, Swanfeld.) On February 27, 1982, after midnight, Agent Chastain entered the licensed premises and discussed with doormen Patterson, Pack, and former doorman Maples a cocaine purchase he had made there two days earlier. Maples then offered to sell Chastain a gram of cocaine. Chastain agreed and handed Maples $70 in return for a clear plastic baggie containing cocaine. But, when this transaction took place, Maples was not an employee of the respondent. (Testimony of Chastain, Harden, Swanfeld, Coronado.) As to Count VI On February 25, 1982, during the evening hours, Agent Chastain entered the licensed premises and asked Dale Patterson, the doorman on duty, if he knew where he could buy some cocaine. Patterson told him he would sell him one gram for $100. After Chastain balked at the price, Patterson lowered it to $80 and told him to check back with him in 15 minutes. Later, when Chastain returned, Patterson introduced him to Jack Corderra, a patron, who took him to a room separating the two bars on the licensed premises and sold him two lumps of cocaine for $80. (Testimony of Chastain.) As to Counts VII and VIII Between November 8, 1981, and March 6, 1982, illicit drugs, including cocaine, methaqualone, marijuana, and percodan (oxycodone) were kept, sold, and delivered on the licensed premises in the manner described herein. As to Count IX through XIII Pursuant to a search warrant executed on the licensed premises on March 6, 1982, respondent's employees and their possessions were searched. Percodan, containing oxycodone, was found in the purse of dancer Cynthia Lytle; marijuana was found in the purse of dancer Margaret McLain; diazepam was found in the purse of dancer Nicole Moon; marijuana was found in the purse of dancer Deronda Doolittle; and a packet of cocaine was found on waitress Ruth Robinson. (Testimony of Houston, Chastain.) III. Respondent's Management and Supervision of the Licensed Premises A. The No-Drug Policy Both before and during the time in which these drug transactions occurred on the licensed premises, respondent announced a no-drug policy to its employees. It posted notices and distributed memoranda prohibiting the possession, use, or sale of any illicit drugs on the premises; employees were told to report any drug violations to the manager and warned that violation of the no-drug policy would result in immediate dismissal. (Testimony of Harden; R-1, R-3.) During the time in question, respondent was aware that complaints had been made to DABT about narcotic violations occurring on the licensed premises. By letter to the Dade County Liquor Consortium, Inc., dated November 2, 1981, DABT expressed a hope that the owners of Doc Watson's, and several other named licensees, "will strictly supervise the conduct of their employees (P-2.) Respondent requested information concerning the complaints; DABT did not provide the requested information because it was conducting an ongoing drug investigation of the premises and did not know, at that time, whether management was involved in illicit drug activities. Respondent also sought advice from Miami Springs police officers on how to control illegal drug activities. (Testimony of Harris, Lifset; P-2, R-21.) Respondent took several steps to implement its no-drug policy. In February, 1981, it hired Larry Williams, a former police officer, as its-new night manager. Williams was instructed to eliminate drug violations on the premises; during the next several months he caught four employees possessing, using, or selling drugs and summarily fired them. Between 1980 and 1981, several other employees had been fired because of suspected use of drugs on the licensed premises. When customers were observed passing illicit drugs, they were asked to leave the premises. (Testimony of Williams, Lifset, Milligan, Sayer, Harden; R-5, R-6, R-7, R-8, R-9.) Respondent required its employees to keep their personal belongings in lockers provided on the premises. The combinations to the locks were known to respondent, and it would occasionally spot search the lockers for illicit drugs. (Testimony of Harden, Hoffman.) Respondent reiterated its no-drug policy at its staff meetings held every four to six weeks. (Testimony of Harden, Lifset, Williams.) Neither James Harden, sole stockholder of the respondent corporation, nor any of respondent's managers were personally involved in any of the illicit drug violations described in Part II above. H. Widespread and Persistent Drug Trafficking on the Licensed Premises Despite respondent's announced no-drug policy, employees, during the time in question, engaged in illicit drug activities on the licensed premises in a persistent and practiced manner. Beverage Agent Chastain was successful in purchasing illicit drugs during one-half of his 25-30 visits to the licensed premises. Employees who did not have drugs available at the time often helped him locate and purchase drugs from others on the premises. (Testimony of Chastain, Houston.) These drug transactions were not isolated events. Drug trafficking on the premises was widespread and occurred in plain view of other employees and patrons. Drugs were sold and talked about in an open manner. For instance, on March 2, 198.2-- when Agent Chastain stepped from his car in respondent's parking lot--doorman Pack called down from an apartment on the second floor above the licensed premises and, in a loud voice, asked him if he wanted some white powder, meaning cocaine. (Testimony of Chastain.) Many of the 75 employees of respondent were involved or implicated in the drug transactions described in Part II above. Out of a total of six doormen, three sold drugs to Agent Chastain. Of approximately five waitresses employed by respondent, two were arrested for possessing illicit drugs on March 6, 1982. Of the 30-35 dancers, at least five engaged in illicit drug activities on the premises between November, 1981, and March, 1982. (Testimony of Chastain, Houston.) C. Respondent's Failure to Diligently Enforce its No-Drug Policy By November, 1981, the owner of respondent was aware that illicit drug activities had been occurring on its licensed premises. Earlier in the year he had hired a former policeman as night manager to control such activities; several persons had been fired for illicit drug activities on the premises. (Testimony of Harris, Harden, Williams.) Respondent was also aware of concrete steps--suggested by DABT--which could be taken by bar owners to prevent illicit drug activity on their premises. 3/ Those steps included giving polygraph examinations to employees, forbidding employees access to their personal belongings while on duty, checking the background of prospective employees for drug history, strictly enforcing rules of conduct for employees, and periodically searching employees. (Testimony of Harris, Harden.) Under these circumstances, respondent failed to diligently supervise its employees and enforce its no-drug policy between November, 1981, and March, 1982. Employees who violated the no-drug policy, such as Darlene Harper, Melanie Goransky, and Linda Pryor (see paragraph 14 above) , were not immediately dismissed. Neither was dancer Dorothy Zink, although day-manager Marilyn Lifset suspected her of selling drugs. Employee searches and spot checks were haphazard and infrequent: Jack Wandel, a bartender for six years, and Sandra Sayer, a waitress for 3 1/2 years, had never been searched; Ann Hoffman, a dancer for five months, had never been searched; Sandra Olitsky, a dancer for two years, and Kathy Mitler, a bartender for eight months, had each been searched once. (Testimony of Chastain, Lifset, Wandel, Sayer, Hoffman, Olitsky, Mitler.) Night-manager Larry Williams conscientiously enforced the no-drug policy between February and October, 1981. A former police officer, Williams watched his employees closely and fired employees he suspected of drug trafficking. But, manager Williams left respondent's employment in October, 1981, before the drug violations in question here occurred. There is no evidence to indicate that his eventual replacement, who has since left respondent's employment, enforced the no-drug policy with equal commitment. Most of the illicit drug activities encompassed by the charges at issue occurred during the night shift. (Testimony of Williams, Harden, Chastain.) Respondent neglected to take reasonable steps to effectively carry out its no-drug policy. Although it knew illicit drug activity had occurred on the premises it: (1) failed to conduct frequent and thorough spot searches of its employees; (2) failed to promptly dismiss employees who violated the policy; (3) failed to consistently investigate the background of prospective employees; (4) failed to administer polygraph examinations; (5) failed to prohibit employee access to personal belongings while on duty; and (6) failed to closely monitor and supervise its nightshift employees for the purpose of detecting illicit drug activity. IV. Prior Record Licensee has never before been cited for any violation of the Beverage Law. (Testimony of Harden.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license be suspended for a period of 90 days, with credit given for any period of suspension effected by the Emergency Order of Suspension executed in March, 1982. DONE AND RECOMMENDED this 2nd day of April, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1982.
The Issue This case concerns an Administrative Complaint filed by the Petitioner against the Respondent. Count I to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13(1)(a) and 561.29, Florida Statutes, by actions of one of its agents, servants or employees, namely: Penny Reid, related to sales of the substance methaqualone, on July 26, 1981, and August 22, 1981. Count II to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of one of its agents, servants or employees, namely: Penny Reid, related to sales of the substance methaqualone, on July 16, 1981, and July 20, 1981, and September 9, 1981. In addition, there are allegations of a sale of lysergic acid diethylamid, on July 16, 1981. 2/ Count III to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13(1)(a) and 561.29, Florida Statutes, by actions of one of its agents, servants or employees, namely: "Eve" related to sales of the substance methaqualone, on August 14, 1981, and with the sale of the substance cocaine, on August 15, 1981. Count IV to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13(1)(a) and 561.29, Florida Statutes, by actions of one of its agents, servants or employees, namely: "Kitty," related to sales of the substance methaqualone, on August 15, 1981, and with the sale of the substance cocaine on September 26, 1981. Count V to the Administrative Complaint accuses the Respondent of violations of Sections 893.03, 893.13(1)(a) and 561.29, Florida Statutes, by actions of one of its agents, servants or employees, namely: "Orlando," related to sales of the substance cannabis, on July 26, 1981. Count VI to the Administrative Complaint accuses the Respondent of violations of Sections 893.03, 893.13(1)(a) and 561.29, Florida Statutes, by actions of one of its agents, servants or employees, namely: "Julie," related to sales of the substance cocaine on September 26, 1981. Count VII to the Administrative Complaint accuses the Respondent, between July 16, 1981, and October 2, 1981, of maintaining a place, namely the licensed premises, which was used for keeping or selling controlled substances, in particular methaqualone, cocaine and cannabis, in violation of Subsections 893.13(2)(a).5 and 561.29(1)(c), Florida Statutes. Count VIII contends that between July 16, 1981, and October 2, 1981, the Respondent, by actions of its agents, servants or employees and patrons, kept or maintained the building or place which was used for illegal keeping, selling or delivering of substances controlled under Chapter 893, Florida Statutes, and in doing so violated Section 823.10, Florida Statutes, and Subsection 561.29(1)(c), Florida Statutes. Count IX accuses the Respondent of allowing its agent, servant or employee, Annie D. Bryant, to unlawfully possess a controlled substance on the licensed premises, namely, marijuana, in violation of Section 893.13, Florida Statutes, and Subsection 561.29(1)(a), Florida Statutes. Count X accuses the Respondent of allowing its agent, servant or employee, Danita Buchin, to unlawfully possess a controlled substance on the licensed premises, namely, marijuana, in violation of Section 893.13, Florida Statutes, and Subsection 561.29(1)(a), Florida Statutes. Count XI accuses the Respondent of allowing its agent, servant or employee, Barbara Jean O'Rourke, to unlawfully possess a controlled substance on the licensed premises, namely, marijuana, in violation of Section 893.13, Florida Statutes, and Subsection 561.29(1)(a), Florida Statutes. Count XII accuses the Respondent, on April 20, 1981, through its corporate officers, directors, stockholders, employees, agents, or servants, of failing to file a sworn declaration of the transfer of voting stock of the corporate licensee, in violation of Rule 7A-3.37, Florida Administrative Code. Count XIII accuses the Respondent, through actions of its corporate officers, directors, stockholders, employees, agents, or servants, on May 4, 1981, of failing to notify the Petitioner of a change of corporate officers within ten (10) days of that change, in particular, within ten (10) days of the resignation of George and Florrie Pappas, as corporate officers and directors of the corporate licensee, in violation of Rule 7A-2.07(2), Florida Administrative Code.
Findings Of Fact Effective August 18, 1980, Pappas Enterprises, Inc., which trades or does business as Foremost Liquors and Hideaway Lounge, at 1005 East 49th Street, in Hialeah, Dade County, Florida, was licensed by the Petitioner to sell alcoholic beverages. At that time, the sole officers listed for the corporation were George and Florrie Pappas. George Pappas was listed as the sole shareholder. In May, 1981, Miguel Rodriguez purchased the shares in the corporation, Pappas Enterprises, Inc. At that time, in his attorney's office, he executed a personal data sheet and certificate of incumbency for the benefit of the Division of Alcoholic Beverages and Tobacco; however, this personal data sheet proposing Rodriguez as a new officer and shareholder of the subject corporation was not filed with the Division of Alcoholic Beverages and Tobacco until October 14, 1981. Furthermore, the first official request for change of corporate officers, owners and shareholders from the Pappases to Rodriguez was not filed with the Division of Alcoholic Beverages and Tobacco until November 4, 1981. Prior to October 14, 1981, the Respondent corporation, in the person of Miguel Rodriguez, was served with a Notice to Show Cause/Administrative Complaint containing the first eight (8) counts alluded to in the Issues statement in this Recommended Order. The date of this service was October 2, 1981. Subsequent to that time, an amendment was allowed adding the remaining counts to the Administrative Complaint. The Respondent, through actions of Miguel Rodriguez, in his effort to protect his interest in the Respondent corporation, which he had purchased, and in view of the fact that he had effective control of the licensed premises during all times pertinent to the Administrative Complaint, has requested a Subsection 120.57(1), Florida Statutes, hearing, following service of him at the licensed premises as agent in fact for the corporation. The hearing was allowed to go forward upon the request made by Rodriguez because Rodriguez's substantial interests are at stake. The requested transfer of ownership and substitution of officers filed on November 4, 1981, is unresolved pending the outcome of the proceedings herein. See Subsection 561.32(2), Florida Statutes. On July 15, 1981, in the evening hours, Beverage Officer, Louis J. Terminello, went to the licensed premises known as the Hideaway for purposes of conducting an undercover narcotics investigation. Once he had entered the premises, he spoke with one of the employees, Penny Reid, a dancer. Upon his inquiry concerning the subject of narcotics Reid told him that she would sell him methaqualone tablets for $3.00 each and lysergic acid diethylamid (LSD) for $5.00 per dosage. In order to consummate the transaction, she explained that she would need to leave the licensed premises. Around 12:15 A.M. on July 16, 1981, Reid approached Miguel Rodriguez and asked permission to leave the licensed premises. She was granted that permission and Reid and Terminello went to a residence location off the licensed premises where a purchase was made of ten (10) methaqualone tablets and four (4) units of LSD at the unit prices as have been indicated. The Beverage Officer and dancer then returned to the licensed premises around 1:30 A.M. On July 20, 1981, at around 9:45 P.M., Officer Robert Chastain entered the licensed premises and spoke with Penny Reid. This conversation ensued when Reid approached Chastain. The subject of drugs was discussed and subsequent to that time, Reid received permission to leave the licensed premises. (She was still employed by the Respondent.) On the date above, Reid and Chastain went to a residence and purchased ten (10) methaqualone tablets. The price for the tablets was $30.00. When they returned to the bar, while in the premises, Reid removed one methaqualone tablet from the napkins in which they were wrapped and gave Chastain nine (9) tablets. Terminello came back to the licensed premises on the evening of July 25, 1981, and spoke with the dancer Reid. During the conversation methaqualone was discussed and she indicated that she did not have that substance at the time. She said she might have some of the material available to her later that night. Reid left the licensed premises around 11:35 P.M. on July 25, 1981, to return around 11:55 P.M. While in the licensed premises she exchanged five (5) methaqualone tablets at $3.00 per tablet, in return for $15.00 on July 26, 1981. This transaction took place in the hall area near the rest rooms in the licensed premises and no effort was made on the part of Reid to disguise the transaction. On July .26, 1981, during his visit to the licensed premises, at approximately 1:30 A.M., Officer Terminello spoke to a man who identified himself as "Orlando" and who claimed to be a manager at the premises and the son of Miguel Rodriguez. In fact, "Orlando" was not a manager at the licensed premises nor the son of Rodriguez. During this conversation, Terminello asked "Orlando" where he could get coke, meaning the controlled substance cocaine. "Orlando" responded that he might get the cocaine on some occasion but not on that evening. "Orlando" did give Officer Terminello marijuana, also known as cannabis, a controlled substance. This item was given to Officer Terminello as he was departing the premises on July 26, 1981. Terminello returned to the licensed premises on August 14, 1981, around 9:45 P.M. On that evening, he spoke with a dancer identified to him as "Eve" who was later determined to be Eve Mae Carroll. Carroll was employed as a dancer in the licensed premises. While seated at a table near the front door, Carroll told Terminello that she would sell "quaaludes" meaning methaqualone at a price of $2.50 a tablet and a total of three (3) tablets. Terminello paid her the prescribed price and she delivered the substance methaqualone to him while seated at the table. She also indicated that she would sell him cocaine at a later time, in that she was expecting a delivery of that substance. At around 12:30 A.M. on August 15, 1981, a further discussion was held between Terminello and Carroll and while standing at the bar, Terminello purchased cocaine from Carroll. On August 15, 1981, at around 12:45 A.M., Terminello spoke with another dancer employed in the licensed premises who was identified as "Kitty" whose actual name is Kathleen Keddie, who explained to him that she had some "ludes," meaning methaqualone. She wanted $4.00 for each tablet and while seated at a table in the bar area, Terminello purchased two (2) methaqualone tablets from Kitty. On August 22, 1981, Terminello was back in the licensed premises at approximately 9:50 P.M. and was seated at the bar talking to Penny Reid who told him she was going to get some "ludes," methaqualone. This activity was to occur on her next break from dancing as an employee in the licensed premises. She left the licensed premises with a patron and returned at around 10:25P.M. and handed Terminello a paper towel containing five (5) methaqualone tablets for which he paid her $15.00. On September 9, 1981, Terminello was again at the licensed premises and was approached by Penny Reid. He asked her for "ludes or acid" meaning methaqualone or LSD, respectively. She told Terminello that she would have to go to a house to obtain these items. She then asked the manager to leave and Terminello and Reid went to the residence where methaqualone was purchased and suspected LSD as requested by Terminello. (She was still employed by the Respondent.) On September 16, 1981, while pursuing the investigation, Terminello again returned to the licensed premises and spoke with Reid who was still an employee at the premises. She told Terminello that she could go to a residence and obtain narcotics. At this time Terminello was accompanied by another Beverage Officer, Robert Chastain. After entering into a discussion on the evening in question, the two (2) officers went with Reid to an off-premises residence where methaqualone and suspected LSD were purchased. On this occasion, Reid took part of the methaqualone purchased as a "tip" and carried those methaqualone tablets back into the licensed premises when the officers and the dancer returned to the licensed premises. On September 19, 1981, Officer Terminello talked to Reid who remained employed at the licensed premises and the discussion concerned narcotics. Then they left the licensed premises and went to a residence where cocaine and methaqualone were purchased. Reid kept three (3) of the methaqualone tablets as a "tip" and she carried those methaqualone tablets back into the licensed premises when Terminello and the dancer returned to the bar. When they had returned to the licensed premises on September 19, 1981, Terminello was approached in the bar by a Michael Harrington who asked Terminello if he wanted to buy coke, meaning cocaine. Harrington then indicated that they should go out into the parking lot of the premises which they did and in the presence of another patron, Alexis Pagan, Terminello purchased a gram of cocaine. On September 25, 1981, Terminello returned to the licensed premises and spoke to an employee/dancer previously identified as Kathleen Keddie. Keddie told him that her "old man" could bring some cocaine into the premises and make some of it available to Terminello. This conversation took place around 9:45 P.M. on that evening. At approximately 12:05 A.M. on September 26, 1981, while seated at the bar, Terminello purchased approximately one (1) gram of cocaine from Keddie for $75.00. In the early morning hours of September 26, 1981, Terminello was also approached by a Julie Murphy who was employed as a cocktail waitress in the licensed premises and she told Terminello that she could sell him cocaine cheaper, at $55.00 a gram. She indicated she would serve as a go-between, intermediary, and told Terminello to leave the premises and come back later. Terminello left and returned at around 3:00 A.M., and while at the bar, purchased the cocaine from Murphy at the agreed upon price of $55.00. During the course of Terminello's investigation at the licensed premises, on a number of occasions he saw people sniffing what, from his expertise in law enforcement, appeared to be cocaine and, from the appearance and odor, using cigarettes thought to be marijuana. These activities occurred in the bathroom areas, halls and package store area. Augusto Garcia who was employed as a manager in the licensed premises was observed at times in the proximity of the activities referred to immediately above and Garcia was also observed by Officer Terminello in the men's room snorting what appeared to be cocaine. On one occasion Garcia was observed near the front door to the bar and package area where a marijuana type cigarette was being smoked in the presence of Garcia, by an employee who worked in the package store. Reid had also told Terminello that she had been fired as an employee at the licensed premises because she was so "luded" out that she fell off the stage. Nonetheless, she had been rehired. Terminello had observed Miguel Rodriguez in the licensed premises during the course of the investigation, mostly in the package store and on occasion in the bar area. Terminello did not speak with Rodriguez during the investigation. On October 2, 1981, the petitioning agency served the Notice to Show Cause/Administrative Complaint at the licensed premises. Following this service, an inspection was conducted in the licensed premises of the lockers of several dancers, for which the dancers had the keys. These dancers were employees at the licensed premises on that date. The search of the lockers and purses of the dancers led to the discovery of marijuana. The dancers in question were Annie D. Bryant, Danita Buchin and Barbara Jean O'Rourke. (Following the October 2, 1981, service of the Administrative Complaint on Miguel Rodriguez, and with Rodriguez's knowledge of the pendency of narcotics allegations being placed against the dancers, Kathleen Keddie, Annie D. Bryant and Danita Buchin, those individuals were allowed to remain as employees in the licensed premises.) During the time in question by the Administrative Complaint, Augusto Garcia acted as a manager in the licensed premises. He had been hired by Miguel Rodriguez. His normal hours of employment were 6:00 P.M. through as late as 4:30 A.M., except for Fridays and Saturdays when he worked a couple of hours. When he was on duty, Rodriguez was ordinarily at the licensed premises. Rodriguez had instructed Garcia to be cognizant of drug problems in the licensed premises and to keep the bar quiet and peaceful. In particular, Rodriguez had instructed Garcia not to allow drugs in the bar and if someone was found with drugs to throw him out. An individual identified as Hector who is a friend of Garcia's assisted in these matters. Garcia indicated the policy of management at the licensed premises was to check the person of the dancers and their bathroom and dressing area to discover narcotics. Nevertheless, testimony by Kathleen Keddie, a person implicated in these matters for narcotics violations and an employee at the bar as a dancer established the fact that she had never been searched for narcotics. Rodriguez was not told by Garcia about people selling drugs in the licensed premises, Garcia would simply "throw them out." Garcia did tell Rodriguez about people "sniffing" what he suspected to be cocaine. At the time Garcia served as a manager in the licensed premises, one Willie Rolack also was a manager in the licensed premises. Willie Rolack's duties as manager were primarily associated with the package store, in contrast to the bar, area. He would periodically go in the bar to check to see if there were fights occurring and to determine if drugs were being used. Rolack had been instructed by Rodriguez to call the Hialeah Police Department if persons who were using drugs would not depart the premises. At times, the Hialeah Police Department has assisted in removing those patrons. Additionally, some employees at the licensed premises had been dismissed for drug involvement as observed by Rolack. Miguel Rodriguez worked sixteen (16) to eighteen (18) hours in the licensed premises, mostly in the package store; however, he did have occasion to check the bar area while at the licensed premises. Rodriguez had told the dancers that he would not tolerate their involvement with drugs and he had instructed customers who were found with drugs that they should leave and not return. He had a policy of not allowing the dancers to leave the licensed premises except on occasion to go for food at nearby restaurants; however, as has been determined in the facts found, the occasions of the departures of the dancers were fairly frequent and not always for the purposes of obtaining food. Rodriguez, through his testimony, verifies a general policy of checking dancers' lockers and pocketbooks and watching their activities. The lockers as have been indicated before were controlled by the dancers themselves who had keys. Prior to July, 1981, and in particular, in June, 1981, one Alexis Pagan had worked as the bar manager and had been dismissed for drug involvement. Nonetheless, the same Alexis Pagan had been observed in the licensed premises during the times set forth in the administrative charges, to include the instance mentioned before.
Findings Of Fact At all times pertinent to this hearing, Respondent possessed alcoholic beverage license number 28-319, Series 2-COP, located at 1963 27th Street, Sarasota, Florida, where it operated the Friendly Tavern. Respondent's place of business is well known to the intelligence unit of the Sarasota Police Department (SPD) , as a place where sales of narcotics are conducted both inside the premises and on the grounds. This information comes from confidential informants and intelligence reports submitted by officers working in the field. Sergeant John P. Viana, SPD, works primarily in this area of town and is personally aware of two recent drug arrests at Respondent's tavern. One took place about 3 to 4 weeks prior to April 13, 1983, and the other, about 3 to 4 weeks prior to that. In the first arrest mentioned, three officers were injured and several arrests were made. In the second, the offender actually ran into Respondent's tavern to escape arrest. Beverage Officer Keith Hamilton was assigned to an investigation of bars and restaurants in the area of Respondent's tavern during late March and early April, 1983. He is a qualified narcotics investigator and is familiar with the appearance and me11 of marijuana. At approximately 11:30 A.M. on March 24, 1983, Hamilton entered the Friendly Tavern, went to the bar and ordered a beer. While drinking, he asked the barmaid, Clarice, if she knew where he could get marijuana. When she indicated she did, he then gave her $10.00. She went down to the other end of the bar, talked with an unidentified black male, and returned to him with a bag of vegetable substance and $4.00 change. She gave him this bag after taking out enough of its contents for two cigarettes, one of which she smoked. After receiving the bag, Hamilton gave Clarice $1.00 with which to purchase rolling papers for him, which she did. The substance in the bag referenced above was subsequently tested at the laboratory of the Florida Department of Law Enforcement, and identified as marijuana. All tests referred to herein were conducted at that same laboratory. Later that same day, at approximately 3:00 P.M., Hamilton went back into the Friendly Tavern where, after playing pool with a patron, he again went to the bar, had a beer, and asked Clarice if he could purchase more marijuana. This time he gave her $12.00 which she took to the end of the bar, called over a black male, and gave him the money. This individual left the area and when he came back shortly thereafter, he gave what he had with him to Clarice who brought it to Hamilton. This substance, in two separate bags, was subsequently tested and identified as marijuana. The next day, March 25, at approximately 1:00 A.M., Hamilton went back to the Friendly Tavern. This time, Clarice was not there and Hamilton talked with a female patron who, in his opinion, was using marijuana. He asked her where he could get some and she told him she would send someone to him, whereupon she left the bar. Shortly thereafter, a man, subsequently identified as "Pop," came in and approached him. After a short discussion, Hamilton paid Pop $10.00,getting in return a bag of a vegetable substance subsequently tested and identified as marijuana. All during this transaction, Hamilton and Pop were in clear view of the barmaid. About 10:00 P.M. the same day, Hamilton went back to the Friendly Tavern and talked with Clarice who was playing pool at the time. Hamilton gave her $10.00 to buy some marijuana for him and left. When he came back about an hour later, she gave him the substance which was later tested and determined to be marijuana. Hamilton did not return to the Friendly Tavern until April 9, 1983. On this day, when he entered, he talked with Clarice who was upset with him because he had not been back as he had promised. When he asked her about marijuana, she left the bar returning shortly thereafter with a black male with whom she talked at the other end of the bar. Soon, she called Hamilton over and told him that this person had only $10.00 bags for sale, as opposed to the $6.00 bags she had purchased previously. Hamilton indicated he did not want to buy any at that price but Clarice encouraged him to do so saying it was good quality. He did buy some, whereupon Clarice took it behind the bar and rolled two cigarettes with it. While she was doing this, she asked Hamilton to stand over by the pool tables and keep watch. When she had rolled the first two cigarettes, Clarice asked Hamilton if he wanted her to roll some for him, to which he replied "yes." When she had done so, he went to the bar and got them and the remaining substance which was later tested and identified as marijuana. On the several occasions Hamilton visited Respondent's tavern he did not see Mrs. Wetherington there. In fact, the only employees he saw on the premises were Clarice and the other unidentified barmaid. He smelled marijuana smoke in the bar only once when he was in there other than when smoked by Clarice, and on only one occasion did he see other patrons smoking what he believed to be, from his training, marijuana. Mrs. Ann M. Anderson-Wetherington, a public health nurse for the Sarasota County Health Department, is the sole stockholder in Friendly Tavern, Inc.. She is also the manager and does all the hiring and firing. She is on the premises almost every afternoon at shift change, approximately 6:30 P.M., to check the cash, etc. The Friendly Tavern is open from 10:30 A.M. to 2:30 A.M. on Monday through Saturday and from 12:30 P.M. to 2:30 A.M. on Sunday. In March and April, 1983, the Friendly Tavern had three employees, Claritha Harris (Clarice) and Fanny Lou Williams, both barmaids, and Lawrence Major, a custodian. Mrs. Wetherington claims to have a staff meeting each Sunday before opening during which she updates her employees on her policies. This lecture frequently includes specific prohibitions against the use, possession, or sale of drugs on the premises. She was out of town during the raid on April 13, 1983, and states she first learned of the sales of marijuana when she returned to town on April 17. When she learned of Clarice's sales, she immediately fired her and had she known earlier, she would have fired her earlier. Her other employees never told her about Clarice's activities nor did the Division ever contact her directly about drug activity in her establishment. In light of the two previous drug arrests at the Friendly Tavern, as testified to by Sergeant Viana, however, I find that she did know, or should have known, of the activities going on in there regarding drugs.
Recommendation On the basis of the facts and circumstances above, it is RECOMMENDED: That Respondent's alcoholic beverage license number 68-319, Series 2-COP, be suspended for a period of 90 days and that it pay a fine of $100.00 for each of six violations alleged. RECOMMENDED this 24th day of May, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1983. COPIES FURNISHED: Harold F. X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 S. Thomas Padgett, Esquire 2168 Main Street Sarasota, Florida 33577 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary R. Rutledge Secretary, Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
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.
The Issue Whether Petitioner's application for an alcoholic beverage license should be granted or denied on the grounds stated in Respondent's letter of denial dated November 18, 1982.
Findings Of Fact During September, 1979, Del Percio was asked by an acquaintance of his in Orlando, Florida, Kenneth McCall, to assist in the running of a lounge which McCall owned there called "The Foxy Lady." Del Percio agreed to do this, and a written agreement was signed by the parties whereby Del Percio bought into a newly formed corporation, Success and Prosperity, Inc., with both Del Percio and McCall to each receive 50 percent of the corporate stock and with Del Percio to be president and McCall, vice president. Leonard P. Del Percio was a 50 percent owner of Success and Prosperity, Inc., and had the right and duty to manage the business operated by it called "The Shingle Shack." McCall was to have no management responsibilities. The Shingle Shack was the new name of the lounge owned previous to September, 1979, by Kenneth McCall known as "The Foxy Lady," which operated under license numbered 58-1076, at 3135 South Orange Avenue, Orlando, Florida. Notwithstanding Del Percio's allegation that his 50 percent ownership of the corporate stock was for his protection in managing the business, the stockholders' agreement signed on August 13, 1979, by both McCall and Petitioner reflects that Del Percio loaned McCall a certain amount of money and McCall sold Del Percio one-half of all the shares of the corporation for an amount equal to the loan. On September 13, 1979, Del Percio, as corporate president, filled out and signed various papers requesting that 2-COP license numbered 58-1076, issued in the name of Kenneth McCall, be transferred to Success and Prosperity, Inc., for a lounge called "The Shingle Shack" doing business at the same location as its predecessor business, The Foxy Lady, which was utilizing the license at that time. These application forms were never submitted to the appropriate authorities for transfer, and the license was never issued in Del Percio's name or the name of Success and Prosperity, Inc., although the business was formed and the lounge name was changed from The Foxy Lady to The Shingle Shack. Del Percio became actively engaged in management of the business during September, 1979. The license was to be the only asset of any major value to the corporation, but it never became an asset of the corporation. On April 20, 1980, Kenneth McCall signed a stipulation calling for the revocation of license numbered 58-1076 because of repeated violations of Florida Statutes taking place at the lounge in question during the month of November, 1979, and because of the failure to file the application for the transfer of the license after a bona fide sale of the business in whose name the license was issued.
Recommendation On the basis of the facts and conclusions above, it is RECOMMENDED: That Leonard P. Del Percio, doing business as the Yum Yum Tree, be issued a license as applied for. RECOMMENDED this 20th day of April, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1983. COPIES FURNISHED: Mr. Leonard P. Del Percio Post Office Box 6202, Station A Daytona Beach, Florida 32022 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 Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 =================================================================
Findings Of Fact At all times pertinent to this hearing, Respondent, James A. Singleton, doing business as Harvey's Bar B Que, possessed 2-COP Beverage License No. 60- 2295 at his place of business at 717 North Tamarind Avenue, West Palm Beach, Florida. A 2-COP beverage license permits the sale of only beer and wine for on-premises consumption. No hard liquor is permitted to be sold, served or stored on the premises covered by the license. On December 17, 1982, armed with a search warrant properly issued based on probable cause provided by confidential informants, a West Palm Beach Police Department patrol headed by Lt. (then Sgt.) Eugene G. Savage entered Respondent's premises at 5:15 p.m. In a separate room to the rear of the building they found 2.2 pounds of a leafy vegetable matter packaged, some in 40 small manila envelopes (nickel bags) and some clear plastic bags. This vegetable substance was subsequently analyzed at the Palm Beach County Crime Laboratory and determined to be marijuana. At the same time, the officers also found 92 sealed half-pint bottles of hard liquor consisting of rum, vodka, gin and brandy. When Respondent was arrested at the time of the search, he had over $400 on his person. None of this money had serial numbers which matched those of money used in an undercover purchase of marijuana several days previously. Respondent explained the large sum of money as being the proceeds of his biweekly paycheck from his regular job on the railroad which he had received on December 15, 1982. Since there was no evidence to show that the undercover purchase of marijuana, which formed a part of the basis for the probable cause to issue the search warrant, was made from Respondent, there is no reason to doubt his explanation. Respondent contended he did not know anything about the marijuana. He has a full-time job with the railroad, a job he has held for 30 years, and had turned the running of his restaurant, which he had purchased for his retirement years, over to his son. His son, who has a record of prior arrests and incarceration for drug abuse, had assured him he would not do anything wrong. Since the search, the son has gotten into some undisclosed additional trouble and has run away. As for the liquor, Respondent contends that he purchased it for the personal consumption of his wife and himself. He bought it in large amounts to get it cheap. However, the half-pint is the favored size of the "Saturday Night" drinker, and, because of the large volume and the diverse nature of the stock, it is clear it was purchased for resale. Respondent is 60 years old and hopes to work for the railroad a few more years before he retires to run his restaurant. In fact, he has to work, he says, to pay off the fines incident to this situation.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent's alcoholic beverage license No. 60-2295 be revoked. RECOMMENDED this 2nd day of December, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1983. COPIES FURNISHED: John A. Boggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. James A. Singleton c/o Harvey's Bar B Que 717 North Tamarind Avenue West Palm Beach, Florida 33401 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact At all times material hereto Barnell and Louise Evans held beverage license No. 62-01451-2-COP for premises located at 1313 North Greenwood Avenue, Clearwater, Florida. They have held this beverage license since 1980. Following receipt of complaints regarding the sale and use of controlled substances, principally marijuana and cocaine, on the licensed premises, an undercover investigation of Foxy's Den was initiated. Keith B. Hamilton, Department of Law Enforcement (DLE) Investigator, visited Foxy's Den the evening of February 28, 1985, observed patrons smoking marijuana, purchased a $5.00 packet from a patron in the lounge of what was later tested and found to be marijuana, purchased paper to roll marijuana cigarettes from the barmaid after holding up the packet he had just purchased, and observed other transactions in what appeared to be the sale and use of marijuana on the licensed premises. Ira L. McQueen, another DLE Investigator, visited the licensed premises during the evening hours of March 21, 26, and 28 April 9, 10, 16, 18, 24, and 29 May 6, 9, 15, 21, and 22: June 20, 25, and 26: July 1, 8, 18, 23, and 29, 1985. During each of these visits he observed one or more of the following: Patrons smoking marijuana in plain view in the bar area patrons selling marijuana and cocaine to other patrons, including McQueen, in the bar area without much attempt at secrecy: bartenders and barmaids discussing the purchase of controlled substances with patrons and acting as intermediaries in those purchases packets of marijuana and money in exchange therefor passing between patrons in plain view of the bartender patrons obtaining change from the bartender, for example, a $20.00 bill, to purchase a nickel ($5.00) or dime ($10.00) packet of marijuana and McQueen being asked by the bartender if he, McQueen, was interested in buying marijuana or cocaine, and thereafter the bartender participating in the purchase of cocaine or marijuana by contributing money to the purchase and contacting the vendors. During these visits to the licensed premises by McQueen, he observed the licensee, Barnell Evans, on the premises only twice, but on each of these occasions McQueen observed the illegal use or sale of controlled substances on the premises which could also have been observed by Evans. Louise Evans has a full-time job at a local hospital and visits the licensed premises only for the purpose of taking the books and records home where she prepares the payroll, pays bills, and keeps the books for the business. Barnell Evans' principal occupation is construction. He is a stucco subcontractor and has maintained this business in Clearwater for a number of years. He has a good reputation in the building industry for honesty and integrity. Operation of Foxy's Den is a part-time occupation of Evans. Respondents had been told by a friend that controlled substances were being sold in the vicinity of the premises. One bartender and a barmaid were fired by Respondents for involvement with drugs on the premises after being warned that implication in drugs on the licensed premises would not be tolerated by the owners. One witness described Barnell Evans as naive regarding controlled substances. His appearance during these proceedings supports the conclusion that he is more naive regarding how to stop the use or sale of controlled substances than indifferent to such use or sale. The bartender on duty most of the evenings Foxy's Den was visited by McQueen, and who was involved in McQueen's purchases, is June Little, the nephew of Barnell Evans, who had hired Little because he was out of work, living with his mother, and "needed a job." Respondents have negotiated an agreement, Exhibit 4, with Curtis McCoy Security Agency for the latter to provide an unarmed uniform security guard on the licensed premises from 4:00 p.m. until midnight daily to detect and deter violations of the laws regarding sale and/or use of controlled substances on the licensed premises.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the regulatory agency charged with enforcing beverage and cigarette tax laws. As part of its duties, Petitioner investigate the sales of cigarettes to minors (under age persons). Respondent, Workman, Inc., d/b/a Coastal Mart, is the holder of alcoholic beverage license number 39-02924, series 1-APS, and retail tobacco products permit number 39-04440. Respondent's licensed premises is located at 9931 North Florida Avenue, Tampa, Florida. Raymond Daoud is Respondent's sole stockholder and is a corporate officer. Pursuant to an anonymous complaint received by Petitioner during the spring of 1993, Special Agent Joseph A. Maggio directed investigative aide Kimberly Siebel to enter the premises of Coastal Mart and attempt to purchase cigarettes. Petitioner, during times material, utilized the services of investigative aides Kimberly Siebel and Stephanie Haley, whose birth dates are September 20, 1975, and January 24, 1978, respectively. Both aides were under the age of 18 during the spring of 1993. Investigative aides Siebel and Haley, are trained by Petitioner, when conducting investigations for the purchase of either beer or cigarettes, to enter premises and to truthfully tell their age when requested. They also provide proper identification to establish their age if requested to do so by the clerk when they are attempting to purchase beer or cigarettes. This procedure was used in this case by investigative aides Siebel and Haley when they purchased cigarettes from Respondent on May 20 and July 8, 1993. When investigative aide Siebel purchased cigarettes from Respondent on May 20, 1993, she had previously worked as an undercover operative for Petitioner approximately 30 times. On May 20, 1993, Siebel entered the premises of Respondent with Special Agent Maggio at approximately 9:25 p.m. Investigative aide Siebel approached the counter and ordered a pack of Marlboro Light cigarettes from the clerk who was later identified as Angela Schulte, an employee of Respondent. Ms. Siebel received a pack of Marlboro Light cigarettes as requested from Schulte without being asked for identification. She paid for the cigarettes and exited the store. Special Agent Maggio observed the purchase of cigarettes by Siebel from his position next in line behind her. When Siebel purchased the cigarettes from Schulte on May 20, 1993, she and Special Agent Maggio observed Respondent, Daoud, behind the counter when they entered the licensed premises. When Siebel and Maggio exited the premises, Siebel gave the cigarettes to Maggio. Maggio placed the cigarettes in a plastic bag and Siebel signed them. Maggio then sealed and placed them in the locked trunk of his vehicle until they were deposited in Petitioner's evidence file the following day. Approximately ten minutes after Siebel purchased the cigarettes and turned them over to Maggio, he reentered the premises, identified himself to Schulte, and advised her that she was under arrest for the sale of cigarettes to an under age person. Daoud was still inside the premises near the front counter. Special Agent Fisher, who is no longer employed by Petitioner, accompanied Special Agent Maggio inside the premises. Fisher completed a letter of warning and Daoud signed the warning. Fisher gave Daoud a copy of the warning as they left. On July 8, 1993, Maggio again directed investigative aide Stephanie Haley to enter Respondent's premises to attempt to purchase cigarettes. On July 8, 1993, investigative aide Haley was fifteen years old. Haley had on her person a Florida Drivers License showing her birthday to be January 24, 1978. On July 8, 1993, investigative aide Haley had previously acted as an undercover operative for Petitioner approximately 20 times. On July 8, 1993, Haley entered the premises of Respondent and approached the counter. She ordered a pack of Marlboro Light cigarettes from the clerk, who was later identified as Raymond Daoud. Daoud asked Haley for identification whereupon she presented her Florida Drivers License. Daoud examined the license and completed the transaction. Haley exited the premises and turned over the cigarettes purchased to Special Agent Maggio. Special Agents Maggio and Bock witnessed the transaction from a vantage point outside the premises. Maggio and Special Agent Bock then entered the premises of Coastal Mart and Bock identified himself and placed Daoud under arrest for the sale of cigarettes to an underage person. Daoud complained that he had been "setup" and that he remembered the girl, "thought she was young," and asked her for identification. Daoud observed Haley's license and thought that it had eighteen years of age on it. Special Agent Bock reminded Daoud that the license did not have an age on it. Daoud insisted that he thought the license had the date 1979 which would, of course, make investigative aide Haley, fourteen when she was, in fact, fifteen at the time. Petitioner has a policy of not letting undercover operatives reenter premises to allow licensed vendors to review items from undercover operatives such as their identification cards, etc., so as not to jeopardize them in future operations and for their own personal safety. Petitioner explained to Respondent that he could examine the identifying card (license) either during the hearing or in court. Respondent suspended Schulte for one week without pay for selling cigarettes to a minor. Respondent also verbally warned Schulte for selling cigarettes to a minor and reminded her that it was against company policy to do so. Schulte recalled that Respondent was "extremely mad" about the incident. Respondent would not knowingly sell cigarettes or alcoholic beverages to a minor. Respondent has operated his business for approximately three years, and this is the first infraction that he has received for the sale of beer or cigarettes to a minor.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent's alcoholic beverage license number 39-02924, series #1-APS, be assessed a $500.00 civil penalty for each count for a total civil penalty of $1,000.00. 1/ RECOMMENDED in Tallahassee, Leon County, Florida, this 4th day of April, 1994. JAMES E. BRADWELL 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 4th day of April, 1994.
