Findings Of Fact Based on the stipulations of the parties, the exhibits received in evidence (including Respondent's Exhibit No. 1), and the testimony of the witnesses at the hearing, I make the following findings of fact: Club 99, Inc., is the holder of alcoholic beverage license number 16- 1053-SRX, series 4-COP, doing business at 451 North State Road 7, Plantation, Broward County, Florida, as a bar and restaurant named Shangri-La. On August 7, 1984, the Plantation Police Department began a narcotics investigation at the licensed premises known as Club 99, Inc. d/b/a Shangri-La, holding license number 16-1053-SRX, series 4-COP, located at 451 North State Road 7, Plantation, Broward County, Florida. On this date Detective Dan Anderson entered the licensed premises undercover and was introduced to a white male bartender identified as Malcolm Perkins. Detective Anderson engaged in a conversation with Perkins regarding a narcotic known as MDA. Perkins explained that MDA was a mixture of heroin and speed and further stated that he could obtain MDA for Anderson at a price of $70.00 a gram or $10.00 a "hit." Detective Anderson also engaged in conversation about MDA with Scott Kiehl, the assistant manager at the licensed premises. Later that same evening Detective Anderson engaged in a conversation about cocaine with a white male bartender on the licensed premises known as "Paul" or "Miss Kitty." None of the employees with whom Detective Anderson discussed MDA or cocaine appeared to be alarmed or concerned about the discussion. On August 10, 1984, at approximately 9:30 P.M., Detective Anderson again entered the licensed premises in an undercover capacity and engaged in a conversation with a white male bartender identified as Richard Christian. Detective Anderson asked if he could buy a half gram of cocaine and Richard Christian answered in the affirmative stating that the price would be $35.00 for one half gram. Detective Anderson gave $40.00 in U.S. currency to Christian and Christian covered the money with a cocktail napkin. Christian took the money and shortly thereafter he placed a clear plastic bag containing a white powdery substance under a cocktail napkin and pushed it across the bar towards Detective Anderson. At this same time, Christian said, "It is underneath." After looking under the napkin, Anderson took the cocktail napkin and the small plastic bag and placed them in his left front pants pocket. On August 17, 1984, Detective Anderson returned to the licensed premises at approximately 10:00 P.M. 2/ On this occasion he met with a white male bartender named Malcolm Perkins. Detective Anderson asked if Perkins had obtained any MDA for him and Perkins answered in the negative. Detective Anderson asked if Perkins could get him any cocaine. Perkins answered in the negative but pointed out a waiter named Everett Campbell and suggested that Anderson ask Campbell about cocaine. Detective Anderson then approached the waiter identified as Everett Campbell and asked Campbell if he could get Anderson a half gram of cocaine. Campbell replied in the affirmative and said the price would be $35.00. Anderson agreed to the price. Later that evening Campbell approached Anderson and said that the person he gets the cocaine from was not in the bar and that, therefore, he could not deliver any cocaine to Detective Anderson. On August 18, 1984, at approximately 11:35 P.M., Detective Anderson entered the licensed premises and met with Everett Campbell. This time Campbell told Anderson that he would be able to obtain some cocaine. At approximately 12:05 A.M. on August 19, 1984, Detective Anderson gave Campbell $40.00 in U.S. currency. Campbell took the money and walked to an unknown location off the premises and returned in about five minutes. Campbell then handed Detective Anderson a small plastic bag containing a white powdery substance. Nothing was wrapped around the plastic bag. Detective Anderson held up the plastic bag to inspect it before putting it in his pocket. The other bartenders and a large number of patrons were nearby and could have seen what was happening. On August 21, 1984, at approximately 11:00 P.M., Detective Anderson entered the licensed premises. Anderson struck up a conversation with a white male patron identified as Dion Burl. Detective Anderson asked Burl if he could obtain some cocaine for Anderson. Burl replied in the affirmative and stated that it would cost $40.00 for one half gram. Anderson placed a cocktail napkin over two $20.00 bills and handed them to Burl. Burl took the money and walked to an unknown location. At approximately 11:30 P.M., Burl returned. He handed Detective Anderson a white cocktail napkin and a small clear plastic bag that contained a white powdery substance. Detective Anderson took the substance and placed it in his pants pocket. On August 23, 1984, Detective Anderson returned to the licensed premises and met with Everett Campbell at approximately 11:00 P.M. Campbell was working as a waiter that night. Detective Anderson asked Campbell if he could obtain a half gram of cocaine for Anderson. Campbell answered in the affirmative and said it would cost $40.00. Detective Anderson gave Campbell the money and a while later Campbell handed him a magazine titled "David" and said, "It's inside." Inside the magazine Detective Anderson found a small clear plastic bags containing a white powdery substance. Detective Anderson held the plastic bag up to inspect it before putting it in his pocket. On August 24, 1984, at approximately 9:30 P.M., Detective Anderson entered the licensed premises again. At approximately the same time Investigator Oliva entered in an undercover capacity as back up. Upon entering the premises Detective Anderson met with white male bartender Richard Christian and both engaged in general conversation. After a short period of time Detective Anderson asked Christian if he had any cocaine. Christian stated that be did not have any right now but for Anderson to go ahead and give Christian $35.00, and that he would have it later. Anderson complied with Christian's request and gave Christian $35.00 U.S. currency. At approximately 11:00 P.M., Detective Anderson and Investigator Oliva seated themselves at a table in the dining area of the licensed premises, where they were greeted by Everett Campbell. Shortly thereafter Anderson asked Campbell if he could get Anderson some cocaine. Campbell replied in the affirmative. Thereupon Anderson folded two $20.00 bills, placed them under a napkin, and gave them to Campbell. Detective Anderson and Investigator Oliva then saw Campbell go into the kitchen area several times. About fifteen or twenty minutes later, Campbell approached the table where Anderson and Oliva were seated and placed a folded cocktail napkin in front of Detective Anderson and said, "It's in there." Anderson unfolded the napkin and found that it contained a small clear plastic bag containing a white powdery substance. Anderson removed the plastic bag from the napkin and inspected the plastic bag by holding it up to eye level for a few seconds. Detective Anderson saw other patrons looking at him when he raised the plastic bag to eve level. After inspecting the plastic bag, Anderson put it in his pocket. At approximately midnight of the evening of August 24-25, 1984, Detective Anderson and Investigator Oliva left the restaurant portion of the licensed premises and proceeded to the upstairs portion of the licensed premises, which is another lounge. After a short period of time, Anderson and Oliva were greeted by a waiter identified as Adam Burnett. Anderson and Oliva negotiated with Burnett for the purchase of cocaine. In approximately five minutes Burnett returned to the table where the officers were seated and stated that he could obtain a better quality of cocaine for $40.00 in U.S. currency for one half gram. At this time Investigator Oliva stated that he would take the better quality of cocaine and gave Burnett $40.00 in U.S. currency. A few minutes later Investigator Oliva followed Burnett into the mens' restroom. Once inside the mens' room, Burnett handed Oliva a white cocktail napkin. Oliva took the napkin and unwrapped it. Inside was a small clear plastic bag containing a white powdery substance. Oliva held the plastic bag up to eye level to view its contents and discussed with Burnett the fact that the white powdery substance had a lot of "rocks" in it. Oliva then stated to Burnett that he was not going to do the cocaine in the bathroom because he did not trust anyone. Burnett's reply was, "It's okay. Everyone does it in here anyway." Oliva and Burnett then left the restroom. A few minutes later that same evening, an unknown white male employee who had been previously working at a bar located in the downstairs portion of the premises approached Detective Anderson and Investigator Oliva and stated to Anderson, "Richard wants to see you downstairs". Anderson and Oliva proceeded downstairs to the bar located by the kitchen entrance. There Detective Anderson met with bartender Richard Christian, who told Anderson to reach into his shirt pocket. Anderson reached in Christian's shirt pocket and pulled out a folded napkin, and a small clear plastic bag which contained a white powdery substance. When Detective Anderson started to open the cocktail napkin, Christian put his hands out to close Anderson's hands in an effort to keep other people from seeing the bag. On August 29, 1984, Detective Anderson again entered the licensed premises. At approximately 10:00 P.M., Detective Anderson was introduced to a white male waiter identified as Tony Brown. Anderson and Brown engaged in general conversation and after a short period of time Anderson asked Brown if he could get a half gram of cocaine. Brown stated that be should be able to obtain one and that he would check around and get back to Detective Anderson. At approximately 11:00 P.M., Brown approached Detective Anderson and stated that he had checked around, but was unable to obtain any cocaine. On the same date, at approximately 11:30 P.M., Detective Anderson met with waiter Adam Burnett and engaged in general conversation and after a short period of time Anderson asked Burnett if Burnett could get him a half gram of cocaine. Burnett replied by stating, "Wait 'til Gus gets here." Burnett further stated that the price would be $35.00 for one half gram. At approximately 12:10 A.M., on August 30, 1984, Anderson handed Burnett two $20.00 bills. About twenty minutes later, Burnett handed Anderson a folded napkin. Anderson unfolded the napkin and found a clear plastic bag containing a white powdery substance. Anderson then placed the clear plastic bag in his left front pocket. On the evening of August 30, 1984, Detective Anderson entered the licensed premises again. Investigator Oliva and Detective Vadnal entered the premises at about the same time in an undercover capacity as back up. Detective Anderson met with a white male patron previously identified as Dion Burl. Anderson asked Burl if he could get Anderson a half gram of cocaine. Burl replied in the affirmative. Detective Anderson then handed Burl two folded $20.00 bills, which were wrapped in a cocktail napkin. Burl took the money and left. At approximately 11:50 P.M., Burl returned to the upstairs portion of the premises and sat at a table with Detective Anderson. At this time Burl handed Anderson a folded cocktail napkin and inside the folded napkin was a small clear plastic bag containing a white powdery substance. On that same evening, August 30, 1984, Detective Anderson met with a white male waiter identified as Tony Brown who was working at the upstairs portion of the licensed premises. Anderson and Brown engaged in a conversation while standing approximately three feet from Investigator Oliva. Anderson asked Brown if Brown could obtain a half gram of cocaine. Brown replied by stating, "It will be about twenty minutes." Detective Anderson gave two $20.00 bills to Brown and told Brown that he would be in the downstairs portion of the licensed premises. At approximately 12:10 A.M, on August 31, 1984, Detective Anderson, while standing at the downstairs portion of the licensed premises was approached by Brown, who handed Anderson a folded white cocktail napkin which contained a clear plastic bag containing a white powdery substance. Anderson inspected the plastic bag and then placed the napkin and its contents in his right rear pants pocket. On or about August 31, 1984, at approximately 11:30 P.M., Detective Anderson again entered the licensed premises. At about the same time Detective Vadnal and Investigator Oliva entered the licensed premises in an undercover capacity as backup. Shortly after midnight (in the early morning minutes of September 1, 1984) Detective Anderson met with white male waiter Adam Burnett and engaged in a general conversation. Detective Anderson asked Burnett if Burnett could get Anderson a half gram of cocaine. Burnett replied in the affirmative. Thereupon Detective Anderson gave Burnett $40.00 in U.S. currency by laying two $20.00 bills on a cocktail tray Burnett was carrying. Burnett walked away from Detective Anderson to an unknown portion of the licensed premises. A few minutes later Burnett returned to where Detective Anderson was standing and handed Anderson a magazine titled "David" and said, "It's in the magazine." Detective Anderson, who was standing near the dance floor of the licensed premises, took the magazine and flipped through its pages, at which time a clear plastic bag containing a white powdery substance fell to the floor. Several patrons standing in the vicinity of Anderson saw the clear plastic bag fall to the floor and laughed at Anderson's clumsiness. Detective Anderson then picked up the clear plastic bag and held it up to eye level to inspect it. He then placed it in his pocket. On the evening of September 5, 1984, Detective Anderson again entered the licensed premises. Shortly thereafter Detective Vadnal and Investigator Oliva entered the licensed premises in an undercover capacity as back up. Detective Anderson met with a white male patron previously identified as Dion Burl and asked Burl if he could purchase a half gram of cocaine. After some conversation, Anderson gave two $20.00 bills to Burl. Detective Anderson then told Burl that he would be sitting on a speaker near the west end of the dance floor and that Burl could deliver the cocaine to him there. At approximately 10:45 P.M., Burl approached Detective Anderson, who was seated on a speaker by the dance floor, and sat next to Anderson. Burl then handed a folded cocktail napkin to Detective Anderson. Inside the cocktail napkin was a small clear plastic bag containing a white powdery substance. Detective Anderson examined the plastic bag and then placed it in his pocket. After concluding the cocaine purchase of September 5, 1984, at the licensed premises, Detective Anderson remained on the licensed premises and during the early morning hours of September 6, 1984, he met with a white male waiter previously identified as Adam Burnett. Detective Anderson asked Burnett if he could get Anderson a half gram of cocaine. Burnett stated that "Gus," referring to the supplier, was not yet at the bar, but that he should be able to obtain some later. A few minutes later, Burnett approached Anderson and stated that Gus was present and Anderson handed Burnett two folded $20.00 bills in U.S. currency. Anderson then stated to Burnett that he would be in the downstairs portion of the premises. A short while later Burnett approached Anderson and handed Anderson what appeared to be a mixed drink with a napkin wrapped around the glass. As he handed the glass to Anderson, Burnett said, "It's just water, but look in the napkin." Anderson set the drink down and unfolded the napkin to expose a small clear plastic bag containing a white powdery substance. Detective Anderson placed the plastic bag in his pocket. At approximately 12:30 A.M. that same evening (prior to purchasing the cocaine from Burnett), Detective Anderson met with a white male waiter previously identified as Everett Campbell and engaged in a general conversation with Campbell. Shortly thereafter Detective Anderson asked Campbell if he could get Anderson a half gram of cocaine. Anderson gave Campbell two folded $20.00 bills in U.S. currency. Approximately two minutes later Campbell returned from an unknown location in the restaurant area of the licensed premises and handed Anderson a small clear plastic bag containing a white powdery substance. Anderson took the plastic bag and held it up to inspect it. The bartender at bar number two could have seen Anderson inspecting the plastic bag. Anderson then placed the plastic bag in his pocket. On the evening of September 10, 1984, Detectives Anderson and Vadnal and Investigator Oliva returned to the licensed premises in an undercover capacity. Anderson engaged in a brief conversation with a white male waiter previously identified as Everett Campbell, who was not working on this date. Anderson asked Campbell if he could get Anderson a half gram of cocaine. Campbell replied in the affirmative. Detective Anderson then handed Campbell a $50.00 bill, which Campbell took. Campbell took the $50.00 bill to a bartender, received change for it, and gave Anderson $10.00. Campbell then went out the front door. At approximately 1:00 A.M. on September 11, 1984, Campbell reentered the licensed premises and met with Detective Anderson who was standing next to Investigator Oliva. At this time Campbell handed Anderson a clear plastic bag containing a white powdery substance. This transaction was observed by an on-duty white male bartender identified only as "Don" and by a white male patron who was standing on the opposite side of Anderson. Detective Anderson took the clear plastic bag and placed it on the bar counter where it remained for two or three minutes in plain view of the bartender. Then Anderson took the plastic bag and attempted to place it in his pants pocket at which time the small plastic bag containing the white powdery substance fell to the floor where Detective Vadnal, Investigator Oliva, and the white male patron previously mentioned observed the same. Detective Anderson retrieved the clear plastic bag from the floor and placed it in his pants pocket. At all times material to this case, the following were employees on the licensed premises. Malcolm Perkins, Richard Christian, Everett Campbell, Adam Burnett, Tony Brown and a bartender identified only as "Don." Each and every one of the clear plastic bags containing a white powdery substance which were sold to Detective Anderson and to Investigator Oliva on the licensed premises during August and September of 1984, were properly examined by a forensic chemist. The contents of each and every one of those clear plastic bags was found to contain cocaine. In brief summary of the foregoing, during the 5-week period from August 7, 1984, through September 11, 1984, the following events occurred on the licensed premises: 8/07/84 Employee Malcolm Perkins told Detective Anderson he could obtain MDA. 8/07/84 Assistant Manager Scott Kiehl and employee "Paul/Miss Kitty" discussed drugs with Detective Anderson without alarm or concern. 8/10/84 Employee Richard Christian sold cocaine to Detective Anderson. 8/17/84 Employee Malcolm Perkins told Detective Anderson that employee Everett Campbell could obtain cocaine for Anderson. 8/17/84 Employee Everett Campbell agreed to sell cocaine to Detective Anderson. 8/19/84 Employee Everett Campbell sold cocaine to Detective Anderson. 8/21/84 Patron Dion Burl sold cocaine to Detective Anderson. 8/23/84 Employee Everett Campbell sold cocaine to Detective Anderson. 8/24/84 Employee Everett Campbell sold cocaine to Detective Anderson. 8/25/84 Employee Richard Christian sold cocaine to Detective Anderson. 8/25/84 Employee Adam Burnett sold cocaine to Investigator Oliva. 8/29/84 Employee Tony Brown offered to sell cocaine to Detective Anderson. 8/30/84 Employee Adam Burnett sold cocaine to Detective Anderson. 8/30/84 Patron Dion Burl sold cocaine to Detective Anderson. 8/31/84 Employee Tony Brown sold cocaine to Detective Anderson. 9/01/84 Employee Adam Burnett sold cocaine to Detective Anderson. 9/05/84 Patron Dion Burl sold cocaine to Detective Anderson. 9/06/84 Employee Adam Burnett sold cocaine to Detective Anderson. 9/06/84 Employee Everett Campbell sold cocaine to Detective Anderson. 9/11/84 Employee Everett Campbell sold cocaine to Detective Anderson. All of the events summarized immediately above took place on the licensed premises during business hours when other employees and patrons were also present on the licensed premises. With the one exception which occurred on August 25, 1984, when Richard Christian reached out to close Detective Anderson's hands so that Anderson would not display a plastic bag containing cocaine, the employees at the licensed premises did not express any concern about any of the drug transactions and did not take any action to prevent or discourage them. Richard DeSanto is the sole officer, director, and shareholder of Club 99, Inc., the licensee in this case. Richard DeSanto is a self-employed attorney in good standing with the Florida Bar. He has been a practicing attorney for six years and maintains an active trial practice. DeSanto does not devote very much time to the management of the licensed premises. The day-to-day management is conducted by a manager and an assistant manager, both hired by DeSanto. The manager is Tommy Engelbrecht and the assistant manager is Scotty Kiehl. DeSanto relies on Engelbrecht to relay DeSanto's instructions about the operation of the licensed premises to the other employees and also relies on Engelbrecht to report back to him regarding any problems in the operation of the licensed premises. Engelbrecht does the hiring and firing at the licensed premises and many of the employees on the licensed premises would not even recognize DeSanto. DeSanto visits the licensed premises about twice a month on a deliberately irregular schedule. Some of his visits are as brief as a few minutes; others are as long as several hours. The primary purpose of his visits is to attend to such things as reviewing business records and signing the payroll. DeSanto has established as policies that intoxicated or disorderly patrons should not be permitted to enter the licensed premises and that patrons who become disorderly once they are inside the licensed premises should be ejected. It is also a policy of the club that if the employees become aware of any drug activity on the licensed premises they are supposed to report the incident to the manager or assistant manager, and the manager or assistant manager is supposed to eject whoever is involved in the drug activity. On three or four occasions during the past year or so patrons have been ejected for drug activities on the licensed premises. DeSanto has discussed drug problems and their prevention with Engelbrecht. All new employees are told about the drug policy at the licensed premises when they are first hired. Engelbrecht has also held a few employee meetings at which he reminded employees of the drug policy. The drug policy established by DeSanto appears to include a policy of firing any employee who is caught with drugs on the premises. During the past year three waiters have been fired on the spot for drug use. In the past year the manager has also been told of three or four instances of drug dealing on the licensed premises. 3/ There are no written personnel rules and regulations. Thus, all of DeSanto's policies are communicated orally to Engelbrecht and are then communicated orally by Engelbrecht to the employees. The entire management of the licensed premises, including management practices concerning hiring of personnel, appear to be very informal. Further, the personnel policies regarding drug activities on the licensed premises are either ineffectively communicated or ineffectively enforced. For example, none of the drug transactions engaged in by Detective Anderson and Investigator Oliva were reported to the manager or assistant manager, and no efforts were made to eject Anderson or Oliva for engaging in drug transactions or attempting to engage in drug transactions, even though some of their transactions were observed by employees who were not involved in the transactions. Further, at least one employee (Richard Christian) knew that a patron named Gus was regularly dealing in cocaine on the licensed premises, but no action was taken to eject Gus. 4/ Yet another example of the informality of the licensee's personnel practices is that even though Englebrecht had recently hired a bartender named "Don" and had supposedly carefully checked with Don's references, Englebrecht could not remember Don's last name. When alcoholic beverage licenses were renewed in March of 1983, the DABT sent information to all licensees advising them that the DABT was willing to provide them with suggestions for controlling drug activity on the licensed premises. DeSanto did not take advantage of this opportunity to obtain suggestions from DABT because he did not think he had a drug problem on the licensed premises. In making the foregoing findings of fact I have given careful consideration to the proposed findings of fact contained in the parties' post- hearing submissions to the Hearing Officer. To the extent that findings of fact proposed by either party are not incorporated in the foregoing findings of fact, the proposed findings have been specifically rejected because they were not supported by competent substantial evidence, because they were contrary to the greater weight of the evidence, because they involve incidental details which were not essential to the resolution of this case, or because they were irrelevant or immaterial.
Recommendation For all of the foregoing reasons it is recommended that the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking alcoholic beverage license number 16-1053-SRX, Series 4-COP, issued to Club 99, Inc., trading as Shangri-La. DONE and ORDERED this 8th day of October, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1984.
The Issue Whether the Division of Alcoholic Beverages and Tobacco is estopped from denying petitioner's application for a transfer of a special restaurant license.
Findings Of Fact In December, 1981, Applicant applied for transfer of alcoholic beverage license no. 23-02433, 4-COP SRX, a special restaurant license held by Charlies the Lakes Restaurant, Inc. & Willman Co.. DABT denied the application, contending that the licensed premises did not meet minimum seating or square footage requirements. (P-1, letter of denial dated April 8, 1982). The licensed premises, known as the Lakeside Cafe, is located at 6125 Miami Lakes Drive, Miami Lake percent, Florida. It has less than 4,000 square feet of service area and is able to seat less than 200 patrons at tables. (P-1, R-1 Stipulation of counsel) Applicant contends that since DABT granted a special restaurant license (4 COP-SRX) to the present and previous licensees, it is now estopped to deny the application. Although DABT has continuously granted such a license, license applicants have twice filed affidavits indicating that the licensed premises meets square footage and seating requirements. In 1976 and 1980 two separate applicants filed sworn affidavits stating that the licensed premises occupied 4,000 or more square feet of floor space and could accommodate 200 or more patrons at tables. On November 17, 1981, Applicant signed an agreement to purchase the licensed premises from the present licensee for $210,000.00. Under that agreement, the present licensee was required to transfer its interest in the beverage license to applicant. (P-3)
Recommendation Based on the foregoing, it is RECOMMENDED: That Applicant's application to transfer license No. 23-02433, 4-COP SRX, be DENIED. DONE and RECOMMENDED this 16th day of November, 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 16th day of November, 1982.
Findings Of Fact Based on the stipulations of the parties, the exhibits received in evidence, and the testimony of the witnesses at the hearing, I make the following findings of fact. Sweet's Lounge, Inc., held alcoholic beverage license number 16-350, Series 2-COP, for the location of Sweet's Lounge, 706-710 Northwest First Street, Dania, Florida, at all times relevant to the charges in this case. On April 24, 1985, Beverage Investigator Frank Oliva drove his automobile to the front of the premises of Sweet's Lounge. He was approached by a male who asked what he wanted, and Oliva responded that he wanted "Boy," a street name for heroin. The male answered that he did not have any. Another male approached Oliva, who again indicated that he wanted some "Boy". Oliva observed the male enter the premises of Sweet's Lounge. Beverage Investigator Alphonso Junious was inside the licensed premises of Sweet's Lounge and observed the entire transaction with Oliva. He observed the male enter the premises of Sweet's Lounge and approach a female patron known as Ramona, who handed the male a tinfoil package. The male returned to Investigator Oliva and exchanged the tinfoil package for $20.00. The male then reentered Sweet's Lounge and gave the $20.00 to Ramona. The substance alleged to be heroin was laboratory analyzed to contain no controlled substances. On April 25, 1985, Beverage Investigator Frank Oliva returned to the front of the premises of Sweet's Lounge. He discussed the purchase of some "Boy" from an individual named William Rainey. Rainey went inside the premises of Sweet's Lounge and returned with a tinfoil package which he delivered to Oliva in exchange for $20.00. The substance alleged to be heroin was laboratory analyzed to contain no controlled substances. On April 25, 1985, Investigator Junious returned to the premises of Sweet's Lounge. The on-duty barmaid, Beatrice, left the premises for a short time and asked a female, later identified as the barmaid Linda, who was sitting at the end of the bar counter smoking a marijuana cigarette, to watch the bar until Beatrice returned. Beatrice said nothing to Linda about the marijuana cigarette. Linda walked behind the bar and continued smoking the marijuana cigarette while performing bartending duties. When Beatrice re-entered the premises, Ramona was standing in the doorway handing a tinfoil package to a male in the view of Beatrice. Junious entered into conversation with Ramona and, during the conversation, Ramona delivered a small tinfoil package to an unknown male patron. Investigator Reylius Thompson was also inside the premises of Sweet's Lounge on April 25, 1985. He observed several patrons smoking marijuana cigarettes, which he was able to identify through their appearance, smell, and the manner of smoking. On May 1, 1985, Investigators Junious and Thompson returned to the licensed premises of Sweet's Lounge. They observed the bartender Beatrice seated at the bar counter with two male patrons who were smoking a marijuana cigarette. After the bartender Linda came on duty, the officers observed her remove a marijuana cigarette from her purse and begin to smoke it behind the bar counter. Junious asked Linda for change for a $20.00 bill so he could buy cocaine. Linda asked what Junious wanted, and he told her a $10.00 piece of cocaine. Linda removed a tinfoil package of cocaine from her purse behind the counter and sold the cocaine to Junious for $10.00. While Investigator Thompson was seated at the bar on May 1, 1985, he also asked Linda for some cocaine. Linda again removed a tinfoil package of cocaine from her purse and delivered it to Thompson in exchange for $10.00. On May 3, 1985, Investigators Junious and Thompson returned to the licensed premises of Sweet's Lounge. While Beatrice was bartender, Junious observed several patrons smoking marijuana cigarettes. After Linda came on duty, Junious asked to purchase $10.00 piece of cocaine from her. Linda requested Beatrice to hand her her purse, from which she removed a tinfoil package of cocaine. Junious observed a plastic bag containing numerous tinfoil packages inside of Linda's purse. Linda sold the package of cocaine to Junious for $10.00 While Investigator Thompson was sitting at the bar on May 3, 1985, he asked Linda for some cocaine. Linda asked Beatrice to pass her purse to her from behind the bar. Beatrice handed the purse to Linda and Linda took out a tinfoil package of cocaine which she sold to Thompson for $10.00 On May 8, 1985, Investigators Junious and Thompson returned to Sweet's Lounge. While the investigators were seated at the bar counter, they observed three male patrons also seated at the bar counter smoking a marijuana cigarette in the presence of Beatrice, the bartender. After Linda came on duty, Junious asked her for a $10.00 piece of cocaine. Linda removed her purse from behind the bar, removed a tinfoil package of cocaine from her purse, and sold the cocaine to Junious for $10.00. Later that evening, Thompson asked bartender Linda for a $10.00 piece of cocaine. She again removed a tinfoil packet containing cocaine from her purse and sold the cocaine to Thompson. ll. On May 10, 1985, Investigators Junious, Thompson and McKeithen went to Sweet's Lounge. Junious asked the bartender Linda for $10.00 worth of cocaine, and she replied that she only had rocks. Junious agreed to purchase the rocks and received a tinfoil package of cocaine from Linda, which she had removed from her purse behind the bar. Later that same evening, Investigator Thompson also asked Linda for $10.00 worth of cocaine. She removed from her purse a tinfoil package containing cocaine which she sold to Thompson for $10.00. That same evening Investigator Thompson observed a male disc jockey smoking marijuana in the presence of patrons and passing the marijuana cigarette to some of the patrons. On May 14, 1985, Investigators Thompson and McKeithen returned to Sweet's Lounge. Thompson observed four patrons seated at a table cutting a white powder and snorting it from the top of the table. He also observed Ramona and a male patron, while seated at the bar, snort a white powder through an empty cigarette paper tube in view of the bartender Beatrice. On May 15, 1985, Investigators Junious and Thompson returned to Sweet's Lounge. Junious asked the bartender Linda if she had any cocaine, and she responded that she did but Junious would have to wait until she served a customer. After serving a customer, Linda sold Junious a small tinfoil package containing cocaine for 510.00. Junious also observed several patrons smoking marijuana cigarettes, sniffing white powder, and removing tobacco from regular cigarettes, inserting white powder into the cigarettes, and smoking same. On that same date, Investigator Thompson also asked Linda for cocaine. She replied that she had rock or powder cocaine and Thompson ordered rock. Linda walked into the package store portion of the lounge and returned shortly to Thompson, handing him a tinfoil package containing a small rock of cocaine in exchange for $10.00. On that same date Thompson observed Ramona using an empty cigarette paper tube to snort a white powder. On May 22, 1985, Investigators Junious and Thompson entered the licensed premises of Sweet's Lounge. The officers observed patrons seated at the bar counter smoking a marijuana cigarette in the presence of bartender Beatrice. The officers also observed Ramona seated at a table with several male patrons, all of whom were snorting a white powder from the table top and smoking a white powder in cigarettes. On May 29, 1985, Investigator Thompson returned to Sweet's Lounge. He observed Linda smoking a marijuana cigarette behind the bar counter and observed Ramona sitting on the west side of the premises with a quantity of white powder on the table. Thompson approached Ramona, sat down next to her, and began to talk to her about cocaine. While Thompson was seated with Ramona another female patron smoked a marijuana cigarette. Later that same evening, Thompson asked bartender Linda for cocaine and she responded that she had rock or powder. He ordered powder and Linda removed a tinfoil package of cocaine from her purse, which she sold to Thompson for $10.00. On the majority of the occasions described above when the investigators were inside the premises of Sweet's Lounge, there was a pervasive odor of marijuana smoke throughout the entire premises. The white powder which was being sniffed by patrons on the licensed premises at the various times described above was cocaine. In brief summary, the following relevant events took place at the licensed premises during the period of the investigation: 4/24/85: A patron participated in sale of a counterfeit controlled substance. 4/25/85: A patron participated in sale of a counterfeit controlled substance, an employee smoked a marijuana cigarette while on duty, and a patron delivered two small tinfoil packages to other patrons, and several patrons smoked marijuana cigarettes. 5/01/85: Two patrons smoked a marijuana cigarette, an employee smoked a marijuana cigarette while on duty, and an employee made two sales of cocaine. 5/03/85: Several patrons smoked marijuana cigarettes, and an employee made two sales of cocaine. 5/08/85: Three patrons smoked marijuana cigarettes in immediate presence of an employee, and an employee made two sales of cocaine. 5/10/85: A disc jockey smoked marijuana and shared it with patrons, and an employee made two sales of cocaine. 5/14/85: Six patrons sniffed cocaine; two did so in immediate presence of an employee. 5/15/85: Several patrons smoked marijuana and sniffed cocaine, and an employee made two sales of cocaine. 5/22/85: Several patrons smoked marijuana cigarettes in the immediate presence of an employee and several patrons sniffed cocaine. 5/24/85: A patron had cocaine in open view on a table, a patron smoked a marijuana cigarette, an employee on duty smoked a marijuana cigarette, and an employee made one sale of cocaine. Mr. Ebbie Sweet was never on the licensed premises on any of the occasions described above when the investigators were on the licensed premises. At all times material to this case, Mr. Andrew Johnson has been the manager of Sweet's Lounge. The owner, Mr. Ebbie Sweet, has given the manager various instructions about the operation of the premises. The instructions include: (a) keep the premises clean, (b) keep drugs out of the premises, (c) tell all employees to do the same, (d) put up signs about what can and cannot be done on the premises [including a sign reading "No Drugs Allowed"], (e) post the DABT flyer, and (f) put a "no loitering" sign outside the premises. The "no loitering" sign has not worked very well. When Mr. Andrew Johnson is on the premises he spends most of his time in the package store portion of the premises and very little of his time in the bar portion. On one occasion prior to the events described above, the Dania Police Department told Mr. Andrew Johnson there was a drug problem in Sweet's Lounge. He told them to come in anytime they wanted to and to arrest anyone they wanted to. Mr. Johnson did not change any procedures at Sweet's Lounge after the Dania Police Department told him about drug problems. Mr. Andrew Johnson knows Ramona. He has never seen her buy or use drugs, but he has heard that she is suspected of being a drug user. Ramona was a frequent visitor at Sweet's Lounge. Mr. Ebbie Sweet is the president of and the principal functionary of Sweet's Lounge, Inc. A sister and a nephew of Mr. Sweet also have some nominal connection to the corporation, but neither of them is active in running the licensed business. Mr. Ebbie Sweet enjoys an excellent reputation in his community. He is active in community affairs and has engaged in various charitable activities for the betterment of his community. It has always been his desire to run a reputable business and if he had known what was going on inside the lounge he would have fired those involved and would have closed the place up himself. In sum: Mr. Ebbie Sweet appears to be a good citizen who was trying to do the right thing. Unfortunately, for both him and the community, he wasn't trying quite hard enough. Some time ago Mr. Ebbie Sweet's wife passed away. As a result of that misfortune Mr. Sweet slowed down a lot and became less active in many things, including the amount of time and energy he devoted to the licensed business. He had at one time visited the licensed premises on a regular basis, but during the past ten months he only made a couple of trips a month to the licensed premises, and those were primarily to check on the inventory. During the past ten months he has hardly ever visited the licensed premises after dark. Mr. Sweet was relying on Mr. Andrew Johnson to manage things for him at the licensed premises even though he knew that Mr. Johnson was not the most reliable of managers. As Mr. Sweet put it, Mr. Johnson "has a few faults." Some years ago Mr. Sweet had an alcoholic beverage quota license which permitted him to sell all types of alcoholic beverages at Sweet's Lounge. When he had that license he had written instructions for his employees, he had doormen, and he had security guards. Since he sold the quota license and obtained his present license (which is limited to beer and wine sales), he has not had written instructions for his employees, he has not had doormen, and he has not had security guards. Mr. Sweet does not perform polygraph examinations or background checks on his employees. He has thought about hiring undercover people to patrol the premises, but has never done anything about it. The area of town in which Sweet's Lounge is located is one in which controlled substances are readily obtainable. Sweet's Lounge has had a recurring problem with undesirable people loitering in front of the lounge, people Mr. Sweet described as "hoodlums." All of the employees who worked in the bar portion of the licensed premises knew that marijuana and cocaine were being used by patrons inside the licensed premises on a regular, frequent, and flagrant basis. None of the employees took any action to prevent, discourage, or terminate the use of controlled substances by patrons. The foregoing findings of fact include the majority of the findings of fact proposed by the Petitioner. They do not, however, include any proposed findings based solely on the testimony of Investigator McKeithen. Some of the proposed findings based on McKeithen's testimony are irrelevant to the disposition of this case. Other proposed findings based solely on McKeithen's testimony are rejected because much of her testimony was neither persuasive nor convincing. While I have no doubts at all about her candor, honesty, or integrity, I have certain doubts about her attention to detail and her ability to recall and describe with accuracy events that took place in her presence. In making the finding that the employees who worked in the bar portion of the licensed premises were aware of the extensive use of drugs by patrons, I have not overlooked the testimony of the employees denying such knowledge. I find the denials to be unworthy of belief in light of all the other evidence in the record.
Recommendation For all of the foregoing reasons it is recommended that the Director of the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking alcoholic beverage license number 16-350, series 2-COP issued to Sweet's Lounge, Inc., for the premises located at 706-710 Northwest First Street, Dania, Florida. DONE AND ORDERED this 16th day of August, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 16th day of August, 1985. COPIES FURNISHED: Louisa Hargrett, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Chesley V. Morton, Esquire 604 Southeast Sixth Avenue Ft. Lauderdale, Florida 33301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr. Secretary The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Respondents hold alcoholic beverage license number 60- 0122, series 2- COP, and do business at 704 South Military Trail, West Palm Beach under the name of The Brass Bull. Respondents have operated The Brass Bull for six years without any complaints from law enforcement agencies until the execution of a search warrant on the premises on November 29, 1994. On September 12, 1984 the Petitioner and the Palm Beach County Sheriff's Office began an investigation of The Brass Bull and met with a confidential informant, hereinafter referred to as CI, who was employed at the time as a dancer at The Brass Bull. The CI agreed to make introductions for law enforcement officers to employees on the premises and was paid $150 on November 26, 1964 for making these introductions. The CI had been placed on probation in July, 1983 and was on probation during this investigation. The CI's husband was placed on probation on September 11, 1984. On September 14, 1984 Investigator Kenneth Goodman, Division of Alcoholic Beverages and Tobacco, and Sergeant David R. Harris, Riviera Beach Police Department, entered the licensed premises and talked with a dancer identified as "Linda" about the purchase of some marijuana. Linda gave Investigator Goodman a single marijuana cigarette analyzed as containing 260 milligrams of cannabis, but she did not have any to sell. Investigator Goodman and Sgt. Harris met another dancer on the premises, identified as "Sunrise," on September 19, 1984 and discussed their desire to purchase some cocaine. Sunrise was later identified as Dawn Birnbaum. Sgt. Harris gave Sunrise $40, she left the premises through the front door, returned in a few minutes and handed Sgt. Harris two aluminum foil packets later analyzed as containing 200 milligrams of cocaine. Investigator Goodman also purchased 100 milligrams of cocaine from Sunrise on September 19, 1984. These sales took place on the premises while other patrons were present, although Sunrise left the premises to obtain the cocaine for the sales. On September 25, 1984, Sgt. Harris entered the licensed premises with Investigator Richard Walker, Division of Alcoholic Beverages and Tobacco. Investigator Walker purchased 505 milligrams of cocaine from Sunrise who left the premises to obtain the cocaine but returned to complete the sale on the premises. Other patrons were on the premises at the time of the transaction. Investigator Goodman and Sgt. Harris were on the licensed premises on October 6, 1984 and discussed their desire to purchase cocaine with a dancer identified as Christine Flynn. They each gave Flynn $45, she left the premises, returned and handed them each a plastic baggie containing a total of 590 milligrams of cocaine. Other patrons were on the premises at the time of the transaction. On October 12, 1984, Investigator Goodman and Sgt. Harris entered the premises and met a waitress identified as April Finster. Investigator Goodman asked to buy some marijuana. She went into a back room on the premises and returned with one marijuana cigarette containing 300 milligrams of cannabis, which she gave to Investigator Goodman. On October 16, 1984, Sgt. Harris and Investigator Walker met a dancer identified as "Blondie" on the premises and discussed their desire to purchase some cocaine from Blondie. The CI was present during this discussion, took $20 from Sgt. Harris, and then left the premises with Blondie. When Blondie and the CI returned, the CI gave Sgt. Harris a plastic bag which was heat sealed and filled with 110 milligrams of cocaine. Blondie stated that she always heat sealed her bags. Later Sgt. Harris gave Blondie $100, she brought him $70 change and then went into the dressing room. When Blondie exited the dressing room she approached the CI and they approached the table where Sgt. Harris was sitting. The CI placed a book of matches on the table and Blondie told Harris the cocaine was in the book of matches. Sgt. Harris found a heat sealed plastic bag containing 135 milligrams of cocaine in the matches. There were other patrons on the premises when these transactions took place. Sgt. Harris and Investigator Walker met a dancer named "Lola" on the premises on October 30, 1984. Sgt. Harris gave Lola $80, she entered the dressing room and then returned to where Sgt. Harris was seated with a white towel around her hand. Inside the towel was a bag containing 800 milligrams of cocaine. While on the premises with Sgt. Harris on October 31, 1984, Investigator Walker gave Lola $100. She left the premises and returned with a plastic bag containing 560 milligrams of cocaine which she gave to Investigator Walker. On November 6, 1984 Investigator Goodman was on the premises with Sgt. Harris, and Investigator Goodman gave Lola $55. Lola approached a white male patron and then returned to Investigator Goodman and gave him a plastic bag containing 400 milligrams of cocaine. On November 20, 1984 Investigator Goodman was on the premises with Sgt. Harris. Lola approached Investigator Goodman and asked him if he wanted to buy some cocaine. He gave her $50, she left the premises and returned with a bag containing 300 milligrams of cocaine which she gave to Investigator Goodman. Other patrons were on the premises at the time of the transaction. Investigator Goodman and Sgt. Harris were also on the licensed premises on September 28, October 9 and 10, November 1 and 5. On each occasion they discussed the purchase of controlled substances as defined in Section 893.03, F.S., with Respondents' employees who were on the premises at the time of these discussions. No actual transactions took place on these dates. In brief summary of the foregoing, during the period of September 14 to November 20, 1984, transactions involving the sale of a total of 3.7 grams of cocaine and gifts of 560 milligrams of cannabis took place at The Brass Bull between Respondents' employees and Investigators Goodman and Walker, and Sgt. Harris. There were also five occasions when the purchase of controlled substances was discussed with Respondents' employees on the premises but no actual transaction took place. The CI was on the premises during most of these occasions, introducing the law enforcement officers to the various employees. The transactions usually took place while other patrons were on the premises, and included Respondents' employees passing the controlled substances on or above the table at which the officers were seated. On some occasions the employees left the premises after receiving money from the officers and returned a short time later with the controlled substance which they then gave to the officers on the premises. Respondents do not take an active role in managing The Brass Bull. They rely on a day manager and a night manager to hire, fire and discipline employees, to schedule the dancers, and to enforce the rules which are posted in the employees' dressing room. Rule 11 prohibits employees from having drugs or "liquors" on the premises, and states that anyone having these substances on the premises will be terminated immediately. Respondents never met with employees, other than their managers with whom they met or talked almost daily. Conversations and meetings with the managers were usually social, however, and generally did not involve business matters. Business meetings with the managers were held infrequently. Robert Meloche only visited the premises at 7:00 a.m. when no one else was present in order to review the prior night's receipts. At all times relevant hereto, Respondents employed various dancers on the licensed premises under the terms of an Entertainment Booking Agreement. All dancers were required to sign the booking agreement and agree to working conditions prescribed by the Respondents, including compensation arrangements, the number and color of their costumes, work hours, and the additional duties of cleaning and serving tables. Respondents also prescribed a set of seventeen (17) rules for all dancers and other employees. The above referenced individuals named Linda, Sunrise, Christine Flynn, April Finster, Blondie, Lola, and the Confidential Informant were employees of Respondents' at the licensed premises during the time relevant to this case. In making the above findings, the undersigned Hearing Officer has considered proposed findings of fact submitted by the parties pursuant to Section 120.57(1)(b)4., F.S. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings have been rejected as subordinate, cumulative, immaterial, unnecessary or not based on competent substantial evidence. Specifically, Respondents' proposed findings as to Counts 14, 15 and 16 are rejected since they are not based on competent substantial evidence and are otherwise immaterial and irrelevant.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that Petitioner enter a final order revoking Respondent's license number 60-0122, series 2-COP. DONE and ENTERED this 1st day of April, 1985 at Tallahassee, Florida. DONALD D. CONN 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 1st day of April, 1985. COPIES FURNISHED: Sandra Stockwell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Craig R. Wilson, Esquire 315 Third Street, Suite 204 West Palm Beach, Florida 33401 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact The Respondent, Cornelia T Brown, doing business as the Oasis Restaurant Bar and Lounge, is the holder of beverage license No. 45-356, Series 2-COP. This license allows the consumption of alcoholic beverages on the premises, located on Douglas Road, Groveland, Florida. The Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida which has its responsibility the licensure and regulation of beverage license holders in the State of Florida. On June 12, 1980, pursuant to a search warrant, Lake County Sheriff and Groveland Police officials accompanied by Petitioner's Beverage Officer, conducted a search of the licensed premises. Respondent was present throughout the investigation. Among the items seized as suspected controlled substances were seven plastic baggies and eight small manila envelopes containing a total of 52.1 grams of cannabis. Currency in the amount of $2,273,67 was also seized. The cannabis and currency were contained in a purse belonging to Respondent. The purse was discovered in the kitchen of the licensed premises, an area not open to bar/restaurant patrons or other members of the public.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violations as alleged in Counts 1, 2 and 4. It is further RECOMMENDED that County 3, which duplicates County 2, and Count 5, be DISMISSED. It is further RECOMMENDED that Respondent's License No. 45-356 be REVOKED. DONE AND ENTERED this 30th day of September 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER 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 30th day of September 1981. COPIES FURNISHED: Cornelia T. Brown Route 1, Box 350-7 Groveland, Florida 32736 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Respondent, Giraldo Gonzalez, d/b/a LaGoma Restaurant, held alcoholic beverage license number 23-03475, series 2- COP, for the premises known as LaGoma Restaurant, 9550 N.W. South River Drive, Miami, Dade County, Florida. On May 30, 1986, Petitioner, Division of Alcoholic Beverages and Tobacco (DABT), following a complaint from another agency, began a narcotics investigation at the licensed premises. On that date, DABT Investigators Carlos Baixauli and Hector Garcia, operating under cover, entered the licensed premises and seated themselves at the bar. During the course of their visit they observed the on-duty bartender, Annie, deliver money to a male patron and receive from him a matchbook containing a small plastic packet of white powder. Annie subsequently delivered the matchbook to an unidentified male who was standing outside the front door of the premises. On June 3, 1986, Investigators Baixauli and Garcia returned to the licensed premises and again seated themselves at the bar. Investigator Garcia asked the on-duty bartender, Mindy, if she could get him some "perico" (Spanish slang for cocaine) Mindy subsequently approached Investigator Garcia and, sitting on his lap, pressed a small plastic bag of cocaine into his hand. Garcia paid Mindy $50.00 for the substance. 1/ On June 4, 1986, Investigators Baixauli and Garcia returned to the licensed premises. As they seated themselves at the bar, Investigator Garcia observed two patrons playing the video poker machine and shortly thereafter saw Respondent open the machine, erase the accumulated points, and pay the patrons and unknown quantity of money from the cash register. Later, while seated at the bar, Investigator Garcia engaged the on-duty bartender, Mindy, in conversation. Mindy placed a napkin on the bar in front of Garcia, poured cocaine onto it from a plastic package she had removed from her pocket, and invited Garcia to try some "perico". At that time there were a number of patrons, including a family with small children, seated proximate to Garcia. The investigators went to the bathroom and secured the cocaine in an evidence bag. Upon their return from the bathroom, the investigators heard screaming and arguing near the bar. They observed a male patron approach another male patron, who was carrying a gym bag which he claimed contained a shotgun, and demand that he put the gun away or use it. Respondent attempted to quell the disturbance; however, the patron with the bag swung it against the other patron's head, causing a severe cut and profuse bleeding. As the two patrons wrestled to the floor among broken bottles and glass, Respondent picked up the gym bag and hid it in the kitchen. After the fight broke up, Respondent's employees immediately cleaned up the premises. When the police arrived to investigate the disturbance they found no evidence of the mayhem that had occurred, and were assured by Respondent that only a miner altercation had taken place. Contrary to Respondent's assurances, a real donnybrook had occurred, and the patron struck with the gym bag had suffered severe injuries and was, at that moment, in the hospital. After the police left, another on-duty bartender, Debra (Mindy's sister), approached the investigators while they were seated at the bar and, laughing, began talking about the fight. During the course of their conversation, Debra removed a straw from her shoe and a five dollar bill from her blouse. She unfolded the bill on the bar, revealing a white powdered substance, and snorted a portion of the substance through the straw. Several patrons, together with bartender Mindy, were present at this time. Later that evening, Mindy handed Investigator Garcia a small plastic bag of cocaine, telling him to go try some. The investigators went into the bathroom where they transferred a portion of the cocaine into a plastic bag for evidence and returned the remainder to Mindy." 2/ On June 6, 1986, Investigators Baixauli and Garcia returned to the premises, and assumed their usual seats at the bar. A patron seated next to Investigator Garcia introduced himself as Eduardo and asked Garcia if he wanted to buy some good perico. When Garcia agreed, Eduardo stood, removed a small plastic bag of cocaine from his pocket, laid it on the bar, and received $45.00 from Garcia. Several patrons, together with the on-duty bartender, Maritza, observed the transaction. Later, Investigator Baixauli asked on-duty bartender Debra if she could get him some cocaine. When Debra agreed, Baixauli gave her $50.00 and she walked over to three male patrons. Upon her return, Debra placed a plastic package of cocaine on the bar in front of the investigator. Several patrons smiled at Baixauli after observing the transaction. Following this sale, off- duty waitress Jenny approached Investigator Baixauli and told him she was sure he would like the perico since she was the supplier. Subsequently, Jenny joined a male patron seated down the bar, and the two snorted a white powder off the bar in the presence of numerous patrons. On June 9, 1986, Investigators Baixauli and Garcia returned to the licensed premises. The investigators began speaking with patron Eduardo, regarding the purchase of more cocaine. The investigators left the bar for a short time with Eduardo, but returned before him. When Eduardo entered the premises, he was carrying a large plastic bag containing approximately one ounce of marijuana. Eduardo placed the bag on the bar in front of the investigators, and told them the marijuana was on the house. On-duty bartenders Esperanza and Candy, together with Respondent, were proximate to this transaction. On June 10, 1986, the investigators returned to the premises. During the course of their visit, Investigator Baixauli observed a male patron playing the video poker machine who suddenly exclaimed "I won". Respondent told the patron to "leave it on 600 and I'll pay you". Respondent then paid the patron $150.00 from the cash register. The investigators again returned to the premises on June 12, 1986. As Investigator Garcia spoke with off-duty waitress Jenny, she removed a small change purse from her boot, which she opened to reveal several small packages of white powder. Jenny told Garcia she would sell him some for $50.00, as opposed to $60.00, if he would agree to let on-duty bartender Maritza have some. When Garcia agreed, Jenny and Haritza went to the restroom. Jenny subsequently returned and handed the packet of cocaine to Investigator Garcia. Later, a patron identified as Roger sat next to Investigator Garcia and Jenny, and purchased a packet of cocaine from her. Roger subsequently handed Jenny the packet and told her to let her friends try some. Investigator Garcia went to the restroom, secured a sample of the cocaine for evidence, and returned the remainder to Jenny. On June 16, 1986, the investigators returned to the premises and took their usual seats at the bar; on duty were bartenders Mindy and Debra. Investigator Baixauli observed Respondent standing at the video poker machine watching a patron play. When the patron had achieved a score of 400 points, he told Respondent to "credit me 50 on the machine and give me the rest". Respondent credited the machine 50 points, and paid the patron an unknown amount of money from the cash register. Meanwhile, Eduardo seated himself next to Investigator Garcia and asked if he wanted to buy some good cocaine. Garcia told Eduardo that he was a little short of cash, however, since Mindy volunteered to go halves, Garcia agreed. Garcia gave Mindy $25.00, she borrowed $10.00 from Debra, and gave Eduardo a total of $50.00 in exchange for a plastic packet of cocaine. Mindy held the packet up for Debra to see, whereupon they went to the restroom. Upon their return, Mindy placed the packet of cocaine on the bar in front of Garcia. On June 18, 1986, the investigators returned to the premises, and took their usual seats at the bar. While Garcia was seated next to, and speaking with, off-duty waitress Jenny, Jenny summoned Respondent. While Respondent was present, Garcia asked Jenny if she had a small amount of perico he could have since he was short of cash. At that point, Respondent moved about 3-4 feet away to speak with a patron. Jenny removed a plastic packet of cocaine from her pocket and placed it on the bar. As Garcia reached to pick up the packet, he observed Respondent looking in his direction. As Garcia continued to speak with Jenny, a male patron approached her and asked if she had his "stuff". Jenny handed the man a plastic packet containing a white powder and he paid her an unknown quantity of money. Investigator Garcia subsequently observed the patron snort a portion of the white powder through a rolled up dollar bill while standing in the pool room area. A number of patrons were playing pool or standing in the area during his activity. The investigators returned to the premises on June 20, 1986, and observed Respondent pay off on the video poker machine. Later in the evening, while Respondent was speaking to Sixto Gonzalez, Sixto called Mindy over and handed her a marijuana cigarette. Mindy and her sister Debra went to the service door and smoked the marijuana. On June 23, 1986, the investigators returned to the premises. After assuming their usual seats, Investigator Baixauli asked on-duty bartender Debra if she had any cocaine for sale. Debra replied that she did not, but that she could get some from another on-duty bartender, Esperanza. Baixauli gave Debra $50.00, and she secured a plastic packet of cocaine from Esperanza and delivered it to Baixauli. Several patrons, who were speaking with Esperanza at the time, observed the transaction. On June 27, 1986, the investigators returned to the premises for the last time. Seated in their usual seats, Investigator Baixauli counted out $50.00 in front of on-duty bartender Mindy. Mindy immediately picked up the money and, walking away, announced "it's perico time". Baixauli observed Mindy approach a male known as Flaco and then go the restroom. When she returned to Baixauli, she handed him a plastic packet of cocaine. Baixauli held the packet up in the presence of other patrons, and while Respondent was standing behind the bar. All of the events summarized in the preceding paragraphs took place at the licensed premises during normal business hours and at times when Respondent was present. At no time did Respondent or his employees express any concern about any of the drug transactions. In fact, all of the employees who worked in the bar portion of the licensed premises knew that marijuana and cocaine were being used and sold on the licensed premises, on a regular, frequent, and flagrant basis. Neither Respondent, nor any of his employees, took any action to prevent, discourage, or terminate the sale or use of controlled substances.
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 respondent's alcoholic beverage license should be suspended or revoked on charges that its licensed lounge: (1) was resorted to be persona using illicit drugs or was used for the keeping or selling of' illicit drugs; and (2) constituted a public nuisance by virtue of such illicit drug activity.
Findings Of Fact Respondent and the Licensed Premises Respondent holds alcoholic beverage license No. 27-00312 (Series 2- COP). Under this license he owns and operates a lounge known as the "Laugh Inn" at 49 Navy Boulevard, Pensacola, Escambia County, Florida. The lounge sells beer, wine, and food to its customers. (Testimony of W. Flynn; P-13.) The Laugh Inn ("licensed premises" or "premises") has two main rooms with a connecting passageway. The front room contains tables, chairs, pool tables, and a bar. To the rear of the bar is an enclosed storage room separating the front from the rear room. The passageway connecting to the rear room is approximately 6 feet wide. On the north aide of the passageway are three restrooms. The rear room contains additional tables and chairs, pool tables, pinball machines, and a "football" table. Because the two main rooms are separated by the storage room, a person tending bar in the front room would be unable to see the rear room area. The rear room ceilings contain three exhaust fans to remove smoke and odors. (Testimony of W. Flynn; R-1.) The licensed premises does not include any area outside the lounge. No property outside of the lounge building was included in the sketch attached to respondent's application for an alcoholic beverage license. Be owns land in back of the premises on which he has placed a small trailer. Be owns a narrow strip of land on each side of the premises and a 3-foot-wide strip of land in front, facing Navy Boulevard. The front parking area--where customers ordinarily park their cars--is neither owned nor controlled by respondent. This parking area is on publicly owned property. Several windows on the premises face the parking area, but they have curtains which are ordinarily closed during business hours. There are no other windows on the premises from which the front parking area can be seen. (Testimony of W. Flynn; R-1.) II. Illicit Drug Activities on or Adjacent to Licensed Premises In April, 1982, undercover officers from the Escambia County Sheriff's Office began an investigation to determine whether violations of the controlled substances law were occurring on the licensed premises. On April 20, 1982, Deputy Linda Dees of the Santa Rosa County Sheriff's Office took delivery of a controlled substance--approximately 25.6 grams of cannabis (marijuana) --from Eric Babcock, a patron of the premises. The delivery took place on the premises at the front bar, where Deputy Bees and Mr. Babcock were seated. He placed the bag of cannabis into her purse--which was on her lap below the bar--and she paid him $35. (Testimony of Dees.) On that same day, April 20, 1982, Deputy Marilyn Medlin of the Escambia County Sheriff's Office took delivery of a controlled substance--approximately 12 grams of cannabis--from Mike Milstead, another patron. Although discussions for the purchase took place in the licensed premises--in a normal tone of voice- -the drugs were delivered and paid for in a vehicle located in the parking area in front of the licensed premises--an area neither owned nor controlled by respondent. (Testimony of Medlin; Seven days later, on April 27, 1982, Deputy Medlin purchased a controlled substance--three tablets of Lysergic Acid Diethylamide (LSD) --from Lydia Quinonas, another patron. The purchase and delivery took place in the rear room of the premises, where Deputy Medlin and Ms. Quinonas were seated. The three tablets were small in size--smaller than ordinary aspirin tablets; Ms. Quinonas delivered the tablets by placing the palm of her hand over the deputy's upturned palm and dropping the tablets. During this transaction, several other persons were in the rear room playing pool. The area was well lighted. (Testimony of Medlin.) On the same day--April 27, 1982--Deputy Dees purchased approximately 21.7 grams of cannabis from Steve Sweat and Kenny Crabtree, patrons of the bar. They also gave Deputy Bees the remaining portion of a marijuana cigarette. The delivery and sale of these drugs took place outside the licensed premises in a truck parked in the front parking area--an area neither owned nor controlled by respondent. Deputy Dees placed the drugs inside her purse where they remained until delivered to law enforcement authorities. (Testimony of Dees.) On May 3, 1982, Deputy Medlin purchased a bag containing approximately 18 grams of cannabis from Thurston Raines, a bar patron. The delivery took place in a private vehicle parked in a well-lighted area in front of the premises. (Neither the vehicle nor the area in which it was parked was owned or controlled by respondent.) Deputy Medlin immediately placed the cannabis into her purse where it remained until delivered to the Sheriff's Office. (Testimony of Medlin.) Later in the evening on May 3, 1982, Deputy Dees i1purchased approximately 17 grams of cannabis from Eric Babcock, a patron of the bar. Mr. Babcock removed a grocery bag concealed above the ceiling in the rear room of the premises. They then proceeded to a private vehicle parked in front of the premises where Deputy Dees selected one of what appeared to be several bags of cannabis in the grocery sack. After placing the bag and the grocery sack in her purse, they returned to the rear room of the premises, where Mr. Babcock returned the grocery bag to its hiding place. (Deputy Dees concealed the grocery bag in her purse when they reentered the premises because Mr. Babcock did not want to be seen carrying it.) The ceiling of the rear room was recently replaced and respondent was not informed of any cannabis having been stored in the ceiling. (Testimony of Dees.) On May 4, 1982, Louis Austie gave Deputy Medlin the remaining portion (.3 gram) of a marijuana cigarette. The cigarette was being smoked by several persons standing outside the front door of the licensed premises. When a sheriff's patrol car entered the lot, Mr. Austie quickly extinguished the cigarette and gave it to Deputy Medlin. This drug transaction took place on property neither owned nor controlled by respondent. (Testimony of Medlin.) During the evening of May 14, 1982, Deputy Medlin telephoned Kay Towney, the night bartender on the premises, and asked her if she knew anyone who would sell her marijuana. Ms. Towney replied that there was a customer on the premises who would sell it to her. Deputy Medlin then proceeded to the premises where Ms. Towney introduced her to Tom Suggs, a customer. After negotiating the sale of .25 ounces of marijuana, Deputy Medlin and Mr. Suggs proceeded to a private car in the front parking area; the delivery took place inside the parked vehicle. (In a subsequent statement given to police officers, Ms. Towney stated that she was aware of drug trafficking on the licensed premises; that she helped arrange drug transactions between her customers; that she knew Eric Babcock had hidden drugs in the ceiling; and that she knew Mr. Babcock, Mark Padgett, and one other person were drug dealers.) (Testimony of Medlin, Kiker.) On May 14, 1982, Mark Padgett approached Deputy Medlin on the premises and asked her if she wanted to buy some quaaludes. She responded that she did. He then delivered a drug to Deputy Medlin in the parking lot area in front of the premises. Subsequent laboratory analysis revealed that drug was not a controlled substance. (Testimony of Medlin.) On several occasions during her investigation, Deputy Medlin observed people in the rear room of the premises smoking what appeared to be marijuana. Since she is familiar with the odor of marijuana smoke, her conclusion is accepted as persuasive. (Testimony of Medlin.) On three or four separate occasions during April, 1982, Stewart Stamm- -a person familiar with the appearance and odor of burning marijuana--saw customers smoking marijuana in the rear room of the licensed premises. He also has purchased marijuana from patrons of th& bar approximately 30 times. (Testimony of Stamm.) On May 26, 1982, Deputy Medlin engaged in an open and loud conversation with Kay Towney, the night bartender. The conversation took place at the bar on the premises and concerned the use of quaaludes. Other customers were 5 to 7 feet away. Ms. Towney then sold to Deputy Medlin what she represented to be two quaalude tablets. 2/ (Testimony of Medlin.) On April 20, 1982, Deputy Medlin observed Kay Towney remove what appeared to be brushes from a compartment in the pool table in the rear room on the premises. A few minutes later, a patron returned to the pool table, opened the compartment and inserted several clear plastic bags containing what appeared to be marijuana. (The bags have not been recovered, so their contents have not been definitively identified.) (Testimony of Medlin.) III. Respondent was Unaware of Illicit Drug Activities on or Adjacent to Licensed Premises Respondent did not know that illicit drug activities had occurred and were occurring on or adjacent to the licensed premises; neither did Frances Flynn, his wife, who acted as the night manager until October, 1981, when she left for eight months to care for her terminally ill brother-in the State of Washington; neither did Doris Sheldon, the daytime bartender; neither did Carolyn Burch, the employee who closed the premises each morning at 2:30 a.m. (Testimony of W. Flynn, F. Flynn, Sheldon, Burch.) Respondent employed Larry Harrison and Pat Randolph to clean in and around the licensed premises on a daily basis. Mr. Harrison and Ms. Randolph would occasionally find in the parking area the remains of what they suspected to be marijuana cigarettes; but there is no evidence that they ever informed respondent of their suspicions. (Testimony of Harrison, Randolph.) No law enforcement officers, including agents of the DABT, have ever informed respondent that they suspected or had reason to believe that illicit drug activities were occurring on the licensed premises. Several regular customers of the bar testified that they had never sheen controlled substances being used, sold, or stored inside or outside the licensed premises. (Testimony of Saucier, Settles, Finney, Donlon.) All of the purchases of the controlled substances described in section II above were initiated by the undercover officers involved. Most of the described purchases and deliveries of controlled substances occurred in the front parking area--an area neither owned nor controlled by respondent and which is not part of the licensed premises. IV. Failure to Diligently Supervise and Maintain Surveillance of Licensed Premises During Evening Hours The illicit drug transactions described above occurred, for the most part, during the evening hours. During those hours--from 6:00 p.m. to 2:30 a.m.--Kay Towney served as the night bartender. Frances Flynn, wife of respondent, ordinarily served as the night-shift manager and supervised the night bartender; but Ms. Flynn was absent from October, 1981, to May, 1982, when she was caring for her ill brother in Washington. (Testimony of W. Flynn, F. Flynn.) Ms. Towney was hired by respondent toward the end of 1981--while his wife was in Washington. At the job interview, respondent asked her if she used drugs; she answered she had used marijuana in the past. During April and May, 1982--when the drug transactions already mentioned took place--Ms. Towney was the only employee regularly on the premises during the night shift. Although respondent considered her a bartender, she considered herself the night manager. (Testimony of W. Flynn.) In April and May, 1982--when the alleged violations occurred-- respondent did not normally supervise and maintain surveillance of the premises during the night shift. He would open the bar at 10:00 a.m. and work there throughout the day, until 6:00 or 7:00 p.m. Then he would go home; Ms. Towney was instructed to call him if any problems arose. During Ms. Flynn's eight- month absence, respondent employed David Saucier to periodically inspect the premises during the night shift. Mr. Saucier inspected the premises approximately ten times and did not observe any illicit drug activities on or adjacent to the premises. (Testimony of W. Flynn, Saucier.) During the time in question--April and May, 1982-- it is concluded that respondent was negligent in that he did not exercise due diligence in supervising and maintaining surveillance of the licensed premises during the evening hours. illicit drug activities occurred repeatedly on the premises-- particularly in the rear room. Such activities were open and persistent and recur- ring. Marijuana was openly smoked in the rear room. The fact that the three exhaust fans may have helped remove the smoke--thus limiting it to the rear room--does not excuse respondent's failure to monitor the rear room area. The person nominally in charge of the premises during the night shift was aware of the illicit drug activity; she not only condoned it but actively participated in it. Although respondent was normally absent from the premises during the night shift, he employed a friend to inspect the premises only about ten times during the night-shift manager's eight-month absence.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage' license be suspended for sixty (60) days, subtracting therefrom the number of days such license has been suspended due to the emergency suspension order served May 28, 1982. DONE AND RECOMMENDED this 29th day of June, 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 29th day of June, 1982.
The Issue The issues for determination are: (1) Whether Respondent violated Section 562.12(1), Florida Statutes, by selling alcoholic beverages in a manner not authorized by law and/or maintaining a place where alcoholic beverages were sold unlawfully; (2) Whether Respondent violated Section 561.29, Florida Statutes, by failing to comply with the terms set forth in a prior Final Order of the Division of Alcoholic Beverages and Tobacco; and (3) If so, what sanctions should be imposed against Respondent's alcoholic beverage licenses.
Findings Of Fact Respondent, Easy Way of Lee County, Inc., d/b/a Hollywood Underground, holds a bottle club license number 46- 03606, issued by the Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Department/Division) and has held such license since June 1995. Under this license, Respondent operates a bottle club known as Hollywood Underground (the licensed premises/the premises or Hollywood Underground) located at 16440 South Tamiami Trail, Unit 1, Fort Myers, Florida. At all times relevant to this action, Mattheos Milonas was the director, president, secretary, and treasurer of Easy Way of Lee County, Inc., d/b/a Hollywood Underground, and the holder of the above-referenced alcoholic beverage license. On or about February 12, 1999, Peggy Duffala, a special agent with the Department, organized an undercover on-site investigation of Hollywood Underground, based on a complaint that Respondent was in violation of certain laws pertaining to the sale of alcoholic beverages without a proper license. On February 12, 1999, Agent Duffala, and two other special agents of the Department, Agent David Perez and Agent Patrick McEnroe, went to the licensed premises to further the investigation. When Agent Duffala arrived, she conducted surveillance in the parking lot of the licensed premises for approximately one and a half hours. During that time, Agent Duffala observed patrons entering and exiting the premises, but saw no patrons entering the premises carrying alcoholic beverages or containers of any kind in their hands. On February 12, 1999, at or near 2:30 a.m., acting in an undercover capacity, Agent Perez and Agent McEnroe entered the licensed premises. Upon entering the premises, Agent Perez paid a $5.00 cover charge and received a wristband. Perez brought no alcohol into the premises with him on that evening. Once inside the licensed premises, Agent Perez went to the bar where he was approached by bartender Norman Vanderbiest. After Vanderbiest asked him what he would like, Agent Perez ordered a Budweiser beer. Vanderbiest retrieved the beer from the cooler behind the bar and gave Agent Perez the beer. After Perez asked how much the Budweiser cost, Vanderbiest responded, "$3.00." Agent Perez then gave $3.00 to Vanderbiest, who subsequently rang up the sale and placed the money in the cash register. At no time during the transaction described in paragraph 6 did Vanderbiest ask Agent Perez if he had brought any alcoholic beverages with him to the licensed premises. In fact, Agent Perez had not brought any alcoholic beverages into the licensed premises on August 12, 1999. Furthermore, prior to February 12, 1999, Agent Perez had never visited the licensed premises, and thus, had never taken any alcoholic beverages there. After Agent Perez purchased the Budweiser beer, he moved from the main bar area to the west end of the bar where he remained for about ten minutes. While situated at the west end of the bar, Agent Perez observed several patrons approach the bar and speak with Vanderbiest. Agent Perez was unable to hear what was being said but he observed Vanderbiest serve each patron an alcoholic beverage. After receiving the alcoholic beverages, each patron would then give Vanderbiest money. At no time during these transactions did Agent Perez observe patrons present cards to Vanderbiest to punch. Furthermore, Agent Perez did not see Vanderbiest check a logbook before he served alcoholic beverages to those patrons. From the west end of the bar, Agent Perez saw 10 to 15 patrons entering the licensed premises. During that time, Agent Perez observed that none of the patrons entering the premises brought alcoholic beverages with them. Agent Patrick McEnroe entered the premises on February 12, 1999, at about 2:30 a.m. Upon entering the premises, Agent McEnroe paid a $5.00 cover charge. Agent McEnroe brought no alcoholic beverages into the licensed premises with him nor did he receive a ticket or card to be punched. Once inside the premises, Agent McEnroe went to the bar and ordered a Bud Light beer from bartender, Norman Vanderbiest. Vanderbiest informed Agent McEnroe that the cost was $3.00, then retrieved a Bud Light beer from the cooler and handed it to Agent McEnroe. Agent McEnroe gave the bartender $3.00 for the beer. Agent McEnroe purchased three bottles of beer that evening. In none of these transactions did Vanderbiest ask Agent McEnroe if he brought any beer with him nor did he ask Agent McEnroe for a card to be punched. Later that evening, after Agents Perez and McEnroe exited the premises, Division agents, assisted by the Lee County Sheriff's Office, entered and raided the premises. During the raid, agents seized 571 containers of alcoholic beverages, $315.00 in cash from the cash register, and two notebooks. One of the notebooks seized was a log book containing entries listing alleged patrons' names along with an alcoholic beverage type, a number assigned to the beverage, and a date. The last entry in the log book was made on February 6, 1999, six days prior to the raid. Neither Agent Perez nor Agent McEnroe was listed in the logbooks. During the raid, Division agents entered the premises and arrested the manager of the club. Subsequently, the manager pled guilty in the Lee County Circuit Court to the criminal charge of keeping or maintaining a place, the licensed premises, that sold alcoholic beverages without a proper license on February 12, 1999. The licensed premises had procedures that governed how employees of Hollywood Underground were to accept and distribute beer and liquor brought into the premises by patrons. When a patron brought beer into the licensed premises, an employee of the club was to write on a card the number and kind of beer that the patron brought to the premises. Once this information was recorded on the card, the employee would give the card to the patron. After the club employee accepted the beer from and issued the card to the patron, in order for the patron to retrieve one or more of the beers, the patron was to present the card to the bartender. The bartender was to then give the patron the requested number of beers and punch the card the corresponding number of times, thereby indicating to both the bartender and patron the number of beers the patron had been given and how many remained. To facilitate ease in the dispensing of the beer, like brands of beer were commingled and placed in a cooler with other containers of identical brands. No attempt was made to designate or label containers of beer by the patrons who brought them into the premises. With regard to liquor, the policy of Hollywood Underground was that bottles of liquor brought in by patrons were to be identified in a manner to ensure that patrons were served liquor only from the bottles that they brought to the premises. In accordance with this policy, when a patron brought a bottle of liquor into the licensed premises, an employee of the club was to put a label on each bottle and write a number on the label. Next, in a log book, the employee was to write the number designated on the club's label, the kind of liquor, and the name of the patron who brought in that bottle of liquor. On February 12, 1999, these policies were not implemented by employees of the licensed premises as evidenced by the transactions involving Agents Perez and McEnroe. In the fall of 1998, Tom Lloyd, a videographer for Channel 6 television, followed Division agents into the licensed premises for purposes of an undercover television news story regarding illegal sale of alcoholic beverages by Respondent. Lloyd did not bring any alcoholic beverages with him to the licensed premises. Nevertheless, while sitting at the bar, Lloyd was approached by a bartender who solicited an order from Lloyd for an alcoholic beverage. Lloyd requested a rum and coke and was sold a rum and coke for $4.00 by the bartender. Prior to the Administrative Action which is the subject of this proceeding, three other administrative actions have been filed against Hollywood Underground for violations of Section 562.12, Florida Statutes. All of the three previously filed administrative actions resulted in disciplinary action against Respondent's license. Respondent was charged in two separate administrative actions (DBPR Case Nos. 46-95-0582 and 46-95-0089) with selling alcoholic beverages in a manner not permitted by license, in violation of Section 562.12, Florida Statutes. These two cases were resolved by combined Consent Order (Final Order No. BPR-96-02540), wherein Respondent paid a $5,000 civil penalty and agreed that its "agents, servants, or employees would not sell or supply alcoholic beverages to any person other than the patron who brought such alcoholic beverages onto the premises." Respondent also agreed to diligently "ensure that no alcoholic beverage would be dispensed to any person that did not bring such alcoholic beverage onto the premises." In DBPR Case No. 46-97-0890, Respondent was charged for the third time with selling alcoholic beverages in a manner not permitted by license, a violation of Section 562.12, Florida Statutes. This case was resolved by Consent Order (Final Order No. BPR-98-06888), wherein Respondent paid a $7,500 civil penalty and agreed to take corrective action regarding the unlawful sale of alcohol on the premises. Respondent agreed to prevent further occurrences of violations of Section 562.12, Florida Statutes. In paragraph 6 of the Consent Order, Respondent agreed and acknowledged that revocation of its alcoholic beverage license would be the appropriate sanction for any subsequent administrative action against the Respondent's license alleging failure of the Respondent to comply with the beverage laws.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that a final order be entered finding that Respondent committed the offenses alleged in the Administrative Action; that Respondent's alcoholic beverage license number 39-01181 be revoked; and that Respondent be assessed a civil penalty of $1,000 per count for a total of $2,000. DONE AND ENTERED this 16th day of February, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2000. COPIES FURNISHED: Miriam S. Wilkinson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Julius F. Parker, Esquire Pennington, Moore, Wilkerson, Bell and Dunbar, P.A. 215 South Monroe Street, Second Floor Tallahassee, Florida 32301 Joseph Martelli, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
Findings Of Fact Respondent held valid alcoholic beverage licenses for Pirate Jim's Restaurant and Lounge and Island House Games People Play at all times relevant to these proceedings. Thomas Joseph Dorsey was a principal corporate officer during such relevant period. Dorsey was arrested in the Miami area for trafficking in cannabis on or about September 2, 1981. The testimony of a Florida Department of Law Enforcement special agent established that he attempted to arrange the purchase of a large quantity of marijuana from Dorsey pursuant to their agreement. The evidence did not establish that the substance viewed by the special agent was, in fact, marijuana. Further, there was no evidence that any sale or delivery took place or that any controlled substances were seized as a result of the proposed transaction.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order dismissing the charges against Respondent. DONE and ENTERED this 7th day of December, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1982.
