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.
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 This case involves the issue of whether the Respondent's beverage license should be suspended, revoked or otherwise disciplined for multiple sales of controlled substances by employees and patrons on the licensed premises. At the formal hearing, the Division of Alcoholic Beverages and Tobacco called as witnesses, Rodney A. Russ, William J. Spears, and James B. McPherson. The Respondents called as witnesses, Deborah Craven, Tina Meredith, Roxanne Hayes, Walter Humphries, Chris Poulos, Mark Willingham, Leonard Coffee, and Respondent, Fred C. Dillman, II. Petitioner offered no exhibits and Respondent offered and had admitted one exhibit. Counsel for the Petitioner and counsel for the Respondent submitted memoranda of law. Neither party submitted proposed findings of fact and conclusions of law.
Findings Of Fact At all times material to the allegations and charges in this proceeding, the Respondents F. C. Dillman, B. J. Dillman, and F. C. Dillman, Jr., were the holders of a valid beverage license number 47-196, Series 4-COP. This license is held by Respondents as a partnership and is issued to the licensed premises known as Fred's Back Door Lounge, located at 2009 West Tennessee Street, Tallahassee, Florida. On Saturday, November 12, 1983, Beverage Officer Rodney A. Russ entered the licensed premises, Fred's Back Door Lounge, in an undercover capacity. Officer Russ had been requested by his superiors to conduct an investigation of possible drug activity at the lounge. The lounge is divided into a front area and back area by partial walls and there are bars serving drinks located in both areas. The lounge has a front entrance and a back entrance. The back entrance opens out onto a deck or porch area. Upon entering the licensed premises, Officer Russ, and a friend who accompanied him, ordered drinks from a bartender named Brenda. Officer Russ and his friend conversed with Brenda and during the course of the conversation, Officer Russ asked her if she knew someone she trusted that he could get two joints from. Joint is a slang or street term for a marijuana cigarette. Brenda responded that she didn't trust anyone. She then left the area where Officer Russ was seated. Officer Russ observed Brenda approach another bartender named Kathy. Kathy handed a rolled up napkin to Brenda and Brenda then walked back over to Officer Russ and handed the napkin to him. The napkin contained 0.975 grams of marijuana, a controlled substance under Chapter 893, Florida Statutes. On this particular evening, the lounge was approximately 3/4 full and had about 75 patrons. The employees on duty included three bartenders, two doormen, and a gentleman in the package store. The conversation with Brenda about drugs occurred in a low town of voice and could not be overheard by other patrons. Brenda attempted to conceal the transfer of the marijuana and there was no effort on Officer Russ's part to make the transfer obvious to anyone else. Brenda was not paid any money for the marijuana. On November 16, 1983, Officer Russ again went to the licensed premises and on this occasion, he was accompanied by Beverage Officer, Gloria Smith. They entered the lounge at approximately 9:30 p.m. and sat at the bar when Brenda was working mixing drinks. They talked with Brenda, and Officer Russ asked her if she could get a couple of joints for him and Smith. Brenda said she would see what she could do. During this conversation, there were patrons standing 2 or 3 feet behind Officers Russ and Smith. There were no seats on either side of them at the bar. Later that evening, Brenda delivered two joints of marijuana to Officer Russ. The joints were again rolled up in a napkin which Officer Russ did not open. Officer Ruff offered to pay Brenda for the marijuana and she refused to accept payment. This evening, the lounge was almost full and had approximately 100 patrons. There were three bartenders and two doormen on duty in the lounge. The napkins received from Brenda contained two rolled marijuana cigarettes containing 1.5 grams of Marijuana. No other employee participated in the drug transfer and the conversation about drugs was in a soft, low tone of voice. Officer Russ next returned to the licensed premises on November 18, 1983. He went to the lounge along an arrived at approximately 6:40 p.m. There were about 50 patrons in the lounge and Officer Russ took a seat at the back bar where Brenda was working. Of the approximately 50 patrons in the lounge about half of the patrons were in the back area. While seated at the bar, Officer Russ met Larry Mallon. During the conversation, Officer Russ told Mallon that he was looking for some marijuana. Mallon told him he had some and took a clear plastic baggie out of his right coat pocket and handed it to Russ. The marijuana was handed to Officer Russ just below the padded area of the bar. The transfer could have been seen by other persons in the lounge but was not visible to someone behind the bar. The plastic baggie contained 1.1 grams of marijuana. Russ did not pay Mallon for the marijuana. While seated at the bar, Russ also purchased 1 gram of cocaine from Mellon for $75. Mellon took the packet of cocaine from his right coat pocket and handed it to Russ. Russ then placed $80 on the bar and Mallon picked it up and handed him $5 in change. The cocaine transaction took place just as Officer Russ was about to leave the licensed premises. There was an employee present behind the bar approximately three (3) feet from Russ and Mallon when the drugs were transferred but Russ could not say whether the employee was looking at them or not. On this particular evening, Russ had no discussions about drugs with employees of the licensed premises. He left the licensed premises at approximately 9:00 p.m. Officer Russ had never met Larry Mallon. Officer Russ, along with Officer Smith, was next in the licensed premises on November 30, 1983. They entered the lounge at approximately 8:40 p.m. and took the same two seats at the same area of the bar where they had sat on the previous visit. Brenda was working behind the bar and Russ asked her if she had any amphetamines or uppers. She said she believed she-did have some and would look and see. Later, Brenda gave Officer Russ 2 tablets which she said were speed, but testing revealed they were not a controlled substance. He also asked Brenda if she could get some marijuana for Officer Smith. Brenda told Officer Russ that someone in the bar was selling marijuana for $100 an ounce and would break it down to quarter ounce for $30. Kathy, another bartender was present during the conversation about drugs and Brenda informed her that Officer Russ and Officer Smith were looking for some pot (marijuana) Later that evening, Officer Smith met a patron named Butch. Butch joined Officers Russ and Smith at the bar after Smith asked him across the bar about possibly obtaining marijuana. Butch told them he could get them a quarter ounce of marijuana for $30. Be said he would have to leave for about ten minutes but would return. He left and returned a short time later and stated to Officer Russ that he had the marijuana but wanted to make the transfer outside the car. Butch, Officer Russ and Officer Smith went out to the parking lot where Butch sold them 2 grams of marijuana for $30. Officers Smith and Russ returned to the lounge Russ asked Brenda if Butch could be trusted and if his marijuana was any good. She said Butch was o.k. During this conversation, a patron named Jim Bob was present. This particular evening, the lounge was crowded and loud music was playing. There were seven employees on duty in the lounge that night. While in the lounge, Officer Russ observed Brenda with a handful of red tablets and also observed a motorcycle gang type individual smoking what smelled like marijuana on the deck outside the back entrance of the lounge. Officer Russ next visited the licensed premises on December 3, 1983. Russ went to the lounge alone and sat at the bar where Brenda and Kathy were working. He began conversing with Brenda and Kathy and asked Kathy if she knew anyone he could get a quarter of an ounce of marijuana from. Kathy said she would look around and twice during the evening came back to Officer Russ and told him she was still looking. During the evening, Officer Russ also spoke to Butch and asked him if he was holding any drugs. Butch said he was not but that he should check the back porch, that there was someone usually smoking marijuana back there. Officer Russ did not obtain any drugs in the licensed premises this particular evening. Accompanied by Officer Smith, Officer Russ again returned to the licensed premises on December 7, 1983. They arrived at approximately 7:30 p.m. When they arrived, Fred Dillman, Jr., was seated at the front bar talking to Brenda. Officer Russ walked up to the bar and spoke to Brenda, who in turn introduced him to Fred Dillman. Later, after Russ went to the back bar, Brenda came back to the bar and began working behind the bar. Brenda told Russ she wanted to talk to him about her cousins in Bristol. She said her cousins had some good reefer (marijuana) and that she was going over to Bristol for the weekend. She asked if Russ wanted some of the reefer. Brenda initiated this conversation about drugs. While Russ was talking with Brenda, Larry Mellon was standing nearby. After Russ talked with Brenda, Larry Mellon began talking with him about the coke he had given him. Russ told Mellon he wanted to buy some reefer and Smith kept saying she wanted to buy coke. Russ told Mellon he wanted to buy $60 worth of reefer. Mellon then left the lounge with another man and moments later Mellon returned and handed a bag of marijuana to Russ. Russ had given the $60 to Mellon at the bar. The transfer of the money was very open and at the time the transfer took place, Brenda was behind the bar nearby. The baggie which Russ received from Mellon contained 9.9 grams of marijuana. Russ did not talk with any employee other than Brenda about drugs on this particular evening. At no time during the evening did Russ observe Dillman come into the back area of the lounge where Brenda was working. On Friday, December 9, 1983 Officer Russ returned to the licensed premises. He arrived at approximately 8:00 p.m. and went to the back area of the bar where Brenda was working. Officer Russ talked with Brenda about the marijuana she was going to get in Bristol and eventually he asked her if she had any speed. Brenda then took two capsules out of her purse and handed them to Officer Russ. When she retrieved the two capsules from her purse, she placed her purse on the bar and took out medicine vials. She looked in the vials until she found what she was looking for. She handed the two capsules across the bar to Officer Russ. Officer Russ had already received his drink and when he gave her the money, the only thing he received across the bar were the two capsules. The two capsules were phentermine, a controlled substance under Chapter 893, Florida Statutes. Officer Russ gave Brenda $10 for the two capsules and she reluctantly accepted the money. When she took the money, Brenda said she would get the prescription refilled and share them with Officer Russ. On this particular evening, there were approximately 35 to 40 patrons in the lounge and 4 or 5 employees on duty. On December 14, 1983, Officers Russ and Smith went to the licensed premises. Brenda was working that evening and Officers Russ and Smith took seats at the bar where she was working. They talked with Brenda and Officer Russ asked her if she could get them something. Brenda then went over to a male patron seated at the bar across from Officers Russ and Smith and talked with him briefly. She reached into the man's right shirt pocket and took out a small amount of marijuana wrapped in a clear plastic material like Saran wrap. Brenda then walked over and handed the packet to Officer Russ. The packet contained .9 grams of marijuana. That same evening, Officer Russ talked with one of the doormen named Hank (aka Hank the Tank) . The conversation took place at the back wall next to the juke box. Russ asked Hank if he knew where he could get some cocaine. Hank said he would check for him. Later that evening, Hank came back to Russ and said that everyone was out but that they would be getting some the next day. There were approximately 75 patrons in the lounge this night and there were approximately 7 employees on duty. On December 16, 1983, Officer Russ returned to the licensed premises. He was accompanied by Barbara Brown, a Callaway police officer. They entered the lounge at approximately 8:25 p.m. and took seats at the beck bar where Brenda was working. There were approximately 50 to 70 patrons in the lounge and 6 employees on duty. While seated at the bar, Officer Russ talked with Brenda, who at one point placed her purse on the bar and searched through several medicine vials just as she had done on a prior occasion. She then handed Officer Russ a yellow capsule similar $0 the ones he had received before. Russ did not pay Brenda any money for the capsule. The capsule was phentermine, a controlled substance under Chapter 893, Florida Statutes. This evening, Officer Russ also spoke with a doorman or bouncer on duty named Kevin. He asked Kevin if he could get him some marijuana. Kevin said Tallahassee was dry and that he had not had a joint in 3 days. Kevin, at the time of the formal hearing, was no longer employed by the Respondent. On his next visit to the licensed premises, Officer Russ was accompanied by Officer Smith. This visit occurred on December 21, 1983. There were between 50 and 75 patrons in the lounge and 5 employees on duty. Officer Russ spoke with one of the barmaids on duty about Kevin. Russ also asked her if she knew where he could get a joint. She said she did not, and suggested he talk to Cindy the bartender at the front bar. Brenda was not working this particular evening end Cindy was working at the front and back bar. Cindy was working at the back bar at that time and Russ spoke with her about the availability of drugs. Cindy told Officer Russ that she had a friend who would be returning with some Hawaiian marijuana. Larry Mellon overheard the conversation and told Cindy and Russ that the guy she was referring to wasn't coming back but was going to Chi-Chi's and then-home. Russ then began talking with Larry Mellon and Jim Bob Kitchen joined them. During the conversation, Jim Bob handed a marijuana cigarette to Officer Smith who then handed it to Officer Russ. The exchange occurred at approximately 10:00 p.m. The marijuana cigarette looked like a rolled marijuana cigarette and contained .2 grams of marijuana. This same evening, Officer Russ was introduced by Butch (whom he had met previously) to a woman named Melinda. Officer Smith had earlier been introduced to Melinda by Butch and was told that Melinda had some marijuana to sell. Officer Russ discussed buying some marijuana from Melinda, and Russ, Smith, and Melinda then went outside the lounge to the parking lot where Melinda sold 11 grams of marijuana to Officer Russ for $30. Officer Russ had never met Melinda before. On Wednesday, December 28, 1983, Officer Russ returned to the licensed premises. Brenda was working at the back bar and Russ took a seat at that bar. Russ asked Brenda if she had gotten the marijuana in Bristol. She said she had not but that she had gotten some more pills from her doctor in Quincy. She said she had marijuana and pills in her car and that she had taken some really good cocaine earlier in the evening. Russ asked Brenda if she had any of the cocaine left and she said she did. Brenda offered to sell Russ some of the cocaine for $75. This discussion took place at the bar with Larry Mellon and Jim Bob Kitchen present. While he was seated at the bar, Brenda got her purse and went to the doorway located next to the little short bar. She took out some pill bottles and in a few moments returned to Russ and gave him an envelope. As she handed him the envelope, Brenda stated she had put the other stuff in there too. The envelope was handed across the bar in open view. The envelope contained 15 capsules of phentermine and a triangular shaped packet of cocaine. Larry Mellon was standing nearby when the transfer occurred and asked Russ what they were doing. Russ said, "Nothing." Larry then stated that he knew what they were doing and that he had seen money change hands and had seen the envelope. After he received the envelope, Russ again asked Brenda about getting some marijuana. Brenda then left the bar through the front door and returned shortly through the same door with a brown bag in her hand. She handed the bag to Officer Russ who then put the bag in his beck pocket. The bag contained .2 grams of marijuana. On January 4, 1984, Officer Russ went to the licensed premises alone. When he arrived, there were very few patrons in the bar and Brenda was seated at the back bar with her feet up. The other bartender, Kathy, was also present. Officer Russ talked with Brenda and Kathy and jokingly asked Kathy if she would like to run a couple of lines of cocaine on the bar. Be also asked Brenda if she had been to Bristol yet. Brenda responded she had but not far enough to get the marijuana. Cindy came back from the front bar and spoke to Brenda, and Russ asked Cindy if her friend with the Hawaiian stuff had come back. Cindy responded, "No." Brenda brought up the subject of pills and placed her purse on the bar end looked at several medicine vials. She took some pills out of one of the vials and placed them in a napkin and handed the napkin to Russ. Russ told Kathy that Brenda had just given him some speed and did she want some. Brenda responded by saying, "Kathy wants coke." Russ then told Cindy that Brenda had given him some speed end did she want to go outside and have some. There were a total of four employees on duty in the lounge this night. There were no doormen working. There were approximately 20 patrons in the lounge. The ten white capsules which Officer Russ received from Brenda were methyephenidate a Schedule II controlled substance under Florida law. Officer Russ's lest visit to the licensed premises was on January 6, 1984. Russ entered the lounge alone and as he entered, he spoke -with Kathy, Cindy and another bartender named Pam. Russ went to the back bar where Brenda was working. He obtained some pills from Brenda. These pills were handed across the bar to Russ and were not in any type of container. Prior to this transfer, Russ had been talking to a patron named Bucky about drugs and pills. As she handed Russ the pills, Brenda stated that she did not have anything to put them in and that she was going to take one herself. Russ told her to give Bucky one and she did. Russ then gave Brenda $20 and told her that she could get the prescription refilled and share them with him. Russ left the licensed premises about 8:55 p.m. and as he was leaving, he spoke to the two doormen. He first asked them where Hank was and they said, "Osceola Hall." Russ then told them that he had just gotten some speed and that he was going outside to take some. The two doormen just laughed. Neither of them asked him to leave. Mr. Fred Dillman was observed in the licensed premises on only one of the 14 evenings Officer Russ was in the lounge. Sometime in October, Mr. Dillman injured his hand and lost a finger in an accident on his farm. Because of this injury he was in the lounge less than he normally would have been in November and December. Mr. Leonard Coffee is the manager of the licensed premises. He manages Fred's Back Door Lounge and another lounge owned by the Respondents. He has worked as manager for 11 or 12 years and has worked in the liquor business off and on since 1955. He divides his work hours between Fred's Back Door Lounge and the other lounge he manages. Mr. Coffee was never informed by any employee that Brenda was dealing drugs in the lounge. It was not established how much of the manager's time is spent in each lounge. Mr. Coffee testified that he instructed all employees to call the police then report to them if they saw anyone with drugs in the lounge. However, only one of three bartenders who testified recalled having been instructed to report drug problems to the manager. Several employees had been approached about drugs and did not report this information to the manager or the owner. One employee, Walter Humphries, had detected a strange odor in the lounge on prior occasions and hand thrown out people in the area of the odor. On one of his visits, Officer Russ also smelled what he considered to he marijuana smoke inside the lounge. There was no clear policy established or communicated to the employees as to what they were to do if they detected drugs being used or sold on the licensed premises. Mr. Coffee testified that he told the employees to call the police end inform him if there were any drugs detected on the licensed premises. However, the employees were not aware of this policy and did not follow the policy. There were no instructions given to employees regarding the detection of drugs and what they should look for in observing and supervising the licensed premises. There were no regular employee meetings where problems or potential problems in the lounge such as drugs were discussed. At the time each employee is hired, they are interviewed and are asked for prior work references. They are not required to fill out an application and are not asked whether they use drugs. No signs were observed in the lounge prohibiting the use or possession of drugs. Approximately two years ago, Respondent, Fred Dillman, 11, was informed by his attorney that the District Beverage Captain had received information that Brenda was selling drugs at the licensed premises. Mr. Dillman confronted Brenda with this information and she denied any involvement with drugs. Brenda, at that time, had been a good employee without any problems at work for seven years. He did not terminate Brenda but asked Mr. Coffee and another employee, Mr. Poulis, to keep an eye on Brenda. Mr. Poulis works in the liquor store from 6:00 p.m. to 10:00 p.m. and then works in the lounge until closing time at 2:00 a.m. Prior to his accident in October, Mr. Dillman was in the lounge more at night. Mr. Dillman's father and mother do not go-to the lounge at night. The patrons of the lounge are almost entirely college age. Mr. Dillman had received information that patrons were smoking marijuana on the back deck of the lounge and that the bikers were dealing drugs on the deck. Approximately one month ago, he instructed his bartenders to stop serving the bikers. Mr. Dillman was aware that drugs were likely to be present in a primarily college age crowd. Fred's Back Door Lounge has a reputation in the community as an establishment where drugs could be obtained. The Respondents do not approve of or condone use of drugs in the licensed premises or elsewhere. Neither the Respondents nor the manager, Mr. Coffee, were aware that Brenda was selling drugs on the licensed premises.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondents guilty of the violations as set forth above and suspending the Respondent's license for a period of 90 days and impose a civil penalty of $10,000. DONE and ORDERED this 23rd day of January, 1984, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1984. COPIES FURNISHED: Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 James N. Watson, Jr., Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 James P. Judkins, Esquire P.O. Box 10368 Tallahassee, Florida 32302 Marion D. Lamb, Jr., Esquire P.O. Box 1778 Tallahassee, Florida 32302
The Issue The issue posed for decision herein is whether or not the Respondent's alcoholic beverage license should be suspended, revoked, or otherwise disciplined based on the Petitioner's Notice to Show Cause filed herein dated April 13, 1983.
Findings Of Fact The Manhattan Restaurant holds alcoholic beverage license No. 68-442 SRX, Series 4-COP, issued in the name of Johnny W. Abner. The premises are located at 1409 Ninth Street, Sarasota, Sarasota County, Florida. Respondent's place of business is well known to the Intelligence Unit of the Sarasota Police Department as a place where sales of narcotics are conducted inside the premises. This information comes from confidential informants and intelligence reports submitted by officers working in the field. (Testimony of Keith Bernard Hamilton, State Beverage Officer; and James D. Fulton, Police Officer, City of Sarasota.) Detective James D. Fulton works primarily in this area of town and is familiar with crimes against persons in narcotics dealing in the area of the Respondent's tavern. Beverage Officer Keith Hamilton was assigned to an investigation of bars and restaurants in the area of Respondent's tavern during late March and early April, 1983. He is a qualified narcotics investigator and is familiar with the smell and appearance of marijuana and cocaine. During the evening of March 22, 1983, Officer Hamilton entered the licensed premises and made contact with the on-duty disc jockey, Joel, and inquired of Joel as to the availability of marijuana. Joel advised that he could obtain some for Officer Hamilton and, upon being given $10, left the area. Joel returned in approximately 10 minutes and handed Officer Hamilton a yellow manila envelope containing a vegetable substance together with $4 in change. The exchange was made openly without any attempt to hide. Officer Hamilton bagged, sealed, and receipted the substance given him by Joel, which was returned to the Sarasota district office and later submitted to the FDLE crime laboratory in Tampa for analysis. Analyst Brenda Norton determined that the substance purchased contained cannabis. At the hearing herein, Officer Hamilton identified the substance analyzed as that purchased by him from Joel. (Petitioner's Exhibit 1.) Joel, during testimony in the instant proceeding, admitted that he made the purchase from an unidentified patron from Bradenton, Florida. Officer Hamilton returned to the licensed premises of the Manhattan Restaurant on the evening of March 22, 1983, where he observed patrons smoking marijuana. Officer Hamilton observed the unique manner in which the cigarette was rolled and the manner in which the patrons held and inhaled the smoke. Based on the aroma of smoke that he smelled on that occasion, he concluded that it was marijuana that was being smoked by the patrons. Officer Hamilton next returned to the licensed premises of the Manhattan Restaurant on the evening of March 23, 1983, at approximately 9:30 p.m. Again, Officer Hamilton made contact with the on-duty disc jockey, Joel, and inquired as to the availability of marijuana. Joel advised that he did not have marijuana for sale at this time, but did advise that he had some good "coke" for sale. Officer Hamilton handed Joel $10, and Joel left and shortly returned with a clear capsule containing a substance which was later analyzed by the FDLE crime laboratory. Analyst Morton determined that the capsule analyzed contained cocaine. At the hearing, Officer Hamilton identified the substance analyzed as that purchased by him on the evening of March 23, 1983. (Petitioner's Exhibit 3.) Joel admitted to such sale and advised that he obtained the drug from a patron at the bar. While at the bar and during the purchase of the cocaine capsule from Joel on March 23, 1983, Officer Hamilton observed the licensee, Johnny Abner, at the bar area of the licensed premises on that occasion. Approximately one hour later, Officer Hamilton again made contact with Joel at the bar area at the Manhattan Restaurant and inquired as to the availability of marijuana. Joel advised that he had some available and told Officer Hamilton to wait for a moment. Joel returned and exchanged one manila envelope for $6. The transaction was carried out in an open manner, and the licensee, Abner, was observed at the time of the transaction at the bar area. The substance purchased by Officer Hamilton was bagged, sealed, receipted and returned to-the district office, which later submitted the substance to the FDLE crime laboratory in Tampa. Analyst Morton determined that the substance analyzed contained cannabis. (Petitioner's Exhibit 2.) Joel admitted to purchasing the marijuana for Officer Hamilton from another patron at the licensed premises whom he knew sold drugs. On that occasion, Officer Hamilton again observed patrons passing what, from his experience, were marijuana cigarettes. The patrons were located in the pool table area, and their actions were observable from the bar. On the afternoon of March 24, 1983, Officer Hamilton discussed with Joel trading liquor which Officer Hamilton represented was stolen from an ABC liquor truck to licensee Abner for marijuana. Joel advised that he would check with Abner as to whether he wanted to make a trade and asked Officer Hamilton to check back with him that evening. As requested, Officer Hamilton returned to the licensed premises of the Manhattan Restaurant at approximately 7:40 p.m. on the evening of March 24. Officer Hamilton made contact with Joel, who advised that Abner had agreed to the trade. Joel and Hamilton thereafter unloaded two cases of allegedly stolen liquor into the back of a red and white Ford van bearing license No. BP8575, which is registered to the licensee, Abner. The transfer was made in the parking lot of the licensed premises pursuant to what Joel represented were instructions from Abner to put it in the truck. Joel thereafter advised Officer Hamilton to check back with him in approximately one hour since licensee Abner had sent someone to get the marijuana. Officer Hamilton returned to the Manhattan Restaurant at approximately 10:00 p.m. and made contact with Joel. Joel advised that Abner had not yet sent anyone for the marijuana, and during the course of that discussion, Joel advised that Abner, when he buys such property, frequently tries these tactics to get the price as low as possible. Joel, however, advised that he would seek to the get the best price for him. During his stay, Officer Hamilton observed Joel and licensee Abner having a discussion and later an exchange of currency. Thereafter, Joel advised Officer Hamilton that Abner had given him the money, and Joel procured from a patron on the licensed premises approximately one-half ounce of a vegetable substance. Officer Hamilton bagged, sealed, and receipted the substance given him by Joel, returned it to the district office, which later submitted it to the FDLE crime laboratory in Tampa. The substance was analyzed by analyst Brenda Morton and was found to contain cannabis. (Petitioner's Exhibit 4.) At the time of the service of th& Emergency Order of Suspension, April 13, 1983, Officer Goodman found two 1.75 liter bottles of Popov Vodka in the bar area of the Manhattan Restaurant where other liquor for sale to customers was kept. These liquor bottles had previously been marked by Officer Ken Goodman as part of the quantity represented to be stolen and traded to Joel by Officer Hamilton in exchange for the marijuana. (Petitioner's Exhibits 6 and 7.) 2/ Officer Hamilton remarked to licensee Abner that he could "get him the same deal again." Jeffery Dawson, a bartender employed at the Manhattan Restaurant, has been given instructions by licensee Abner regarding certain prohibited acts, including the carrying of weapons and the use of drugs in the licensed premises. Dawson has also heard the disc jockey (D.J.) announce that no drugs or firearms were to be used or carried in the licensed premises. Patrice Rivers, a barmaid employed at the Manhattan Restaurant since approximately March, 1983, was told, at the time of her employment, by licensee Abner that there were to be no drugs or firearms carried or used by customers in the licensed premises. Employee Rivers has observed signs outside and inside the building prohibiting drug use in the licensed premises. Kenneth Davis, a part-time handyman employed at the Manhattan Restaurant, assisted licensee Abner in making liquor purchases from distributors and, on occasion, from the ABC Liquor Lounge in Sarasota, Florida. Davis has observed several employees using licensee Abner's van. Employee Davis has listened to both the disc jockey and licensee Abner use the P.A. system to announce that there were to be no drugs consumed in the licensed premises. Employee Davis heard the conversation between Joel and licensee Abner regarding the exchange of the allegedly stolen liquor for drugs. Initially, Joel asked licensee Abner for $80 to purchase the allegedly stolen liquor. Licensee Abner refused, whereupon Joel returned for the second time and requested $60 to purchase the allegedly stolen liquor. Again, licensee Abner refused and, the third time, Joel requested $40 to purchase the liquor. Again, licensee Abner refused and, at that time, Joel asked to borrow $40 until he received his paycheck the following week. Licensee Abner loaned Joel the $40, and the exchange was made between Officer Hamilton and Joel outside the licensed premises. Later that evening, Joel asked the bartender to keep two bottles of Popov Vodka behind the bar. According to Davis, Smirnoff is the vodka principally sold by the licensee. Davis refers to licensee Abner as "Buddy." Joel asked Buddy to use the van to take the liquor home that he had purchased from Officer Hamilton. James Bowen, a bartender employed full-time at the Manhattan Restaurant, has been so employed since the club's inception approximately eight years ago. As part of his duties, bartender Bowen stops fights, serves drinks, and attempts to prohibit the use of drugs inside the licensed premises. Bartender Bowen kept two bottles of Popov Vodka for Joel behind the bar area. Joel Harris, a disc jockey employed full-time at the Manhattan Restaurant since approximately 1980, is familiar with Officer Hamilton. Joel met Officer Hamilton approximately four weeks prior to April 13, 1983, when he was introduced by another friend. Officer Hamilton asked Joel if he could assist him in getting some "girl." 3/ Joel admits to purchasing marijuana and cocaine for Officer Hamilton and confidential informant Sutton. Although Joel admits to purchasing marijuana and cocaine for Officer Hamilton, he insists that licensee Abner was unaware of such purchases and that they were not made in licensee Abner's presence. Further, Joel contends that when offered the exchange for the stolen liquor by Officer Hamilton, licensee Abner refused to purchase the allegedly stolen liquor and would not assist him in the purchase of same despite his attempts to do so on at least three occasions. Joel borrowed licensee Abner's van to transport the allegedly stolen liquor from the licensed premises to his apartment where he was to later have a party. Joel admits to having made a mistake in purchasing the allegedly stolen liquor and purchasing drugs for Officer Hamilton on the licensed premises; however, he states that licensee Abner should not be held responsible for his acts and/or conduct. Joel has been arrested and charged for the felony sale of a controlled substance to Officer Hamilton. Johnny Wilbur Abner, the licensee, is the owner/operator of the Manhattan Restaurant. Licensee Abner has operated the Manhattan Restaurant for approximately eight years. Licensee Abner has a policy of no drugs or loitering in his premises, and he further enforces a no loitering policy in the parking lot of his premises. Licensee Abner enforces that policy with and through his employees. Licensee Abner has evicted a number of patrons from the Manhattan Restaurant and recalled having done so as frequently as three (3) times each week. Additionally, licensee Abner has a policy to avoid dealing in stolen property entirely. He has not knowingly purchased any stolen liquor, nor has he been introduced to Officer Hamilton prior to the subject incident. Licensee Abner loans Joel money on a regular basis. Licensee Abner offered no explanation as to how the Popov Vodka got to his place, inasmuch as he does not sell Popov Vodka. Division Director Willingham's examination of the inventory taken when the Emergency Suspension and Notice to Show Cause were served upon the Respondent on April 13, 1983, revealed that there were, inter alia, four 1.75 liters of Popov liquor on the licensed premises on that date and that, in addition, there were two other bottles of Popov liquor which were seized by beverage agents during the serving of the Emergency Suspension Order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Respondent's alcoholic beverage license No. 68-442 SRX, Series 4-COP, be suspended for a period of ninety (90) days and that it pay a fine of $100 for each of seven (7) violations alleged in the Notice to Show Cause filed herein dated April 13, 1983. RECOMMENDED this 24th day of June, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1983.
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 The Parties. Petitioner, the Department of Business Regulation and Professional Regulation, Division of Alcoholic Beverages and Tobacco (hereinafter referred to as the "Division"), is an agency of the State of Florida charged with responsibility for enforcing Chapter 561, Florida Statutes. The Respondent is Walter Falcon, d/b/a Falcons JVJ General Store (hereinafter referred to as "Falcons"). At all times relevant to this proceeding Mr. Falcon held Florida alcoholic beverage license number 64-00453, series 2-COP (hereinafter referred to as the "License"). The License authorized Mr. Falcon to sell and possess alcoholic beverages on premises of Falcon's located at 1088 Highway 20, Interlachen, Putnam County, Florida. The Putnam County Sheriffs Office Investigation of Falcon's. In October of 1993, the Putnam County Sheriffs Office initiated an investigation of alleged sales of alcoholic beverages to persons under the age of 21 years at Falcons. On October 14, 19, 20 and 28, 1993 Pollyanna Alessi entered Falcons in furtherance of the Putnam County Sheriffs Office investigation. Ms. Alessi's date of birth is March 13, 1973. At all times relevant to this proceeding, Ms. Alessi was 20 years old. Ms. Alessi's appearance in October of 1993 was not such that an ordinary prudent person would believe her to be of legal age. On October 14, 1993: Ms. Alessi entered Falcon's and purchased a six-pack of Miller Genuine Draft beer. Petitioner's exhibit 2. Mr. Falcon sold the beer to Ms. Alessi. Mr. Falcon did not ask Ms. Alessi for any identification or other proof of age. Mr. Falcon also did not ask Ms. Alessi her age. On October 19, 1993: Ms. Alessi entered Falcon's and purchased a six-pack of Miller Genuine Draft beer. Petitioner's exhibit 3. Mr. Falcon sold the beer to Ms. Alessi. Mr. Falcon did not ask Ms. Alessi for any identification or other proof of age. Mr. Falcon also did not ask Ms. Alessi her age. On October 20, 1993: Ms. Alessi entered Falcon's and purchased one bottle of Miller Genuine Draft beer. Petitioner's exhibit 4. Mr. Falcon sold the beer to Ms. Alessi. Mr. Falcon did not ask Ms. Alessi for any identification or other proof of age. Mr. Falcon also did not ask Ms. Alessi her age. On October 28, 1993: Ms. Alessi entered Falcon's and purchased a six-pack of Coors beer. Petitioner's exhibit 5. Mr. Falcon sold the beer to Ms. Alessi. Mr. Falcon did not ask Ms. Alessi for any identification or other proof of age. Mr. Falcon also did not ask Ms. Alessi her age. The products purchased by Ms. Alessi were clearly labelled as beer, an alcoholic beverage, and were identified as alcoholic beverages. The Division's Investigation of Falcon's. On October 29, 1993, Chris LaBelle, while in the employ of the Division, participated in the investigation of alleged sales of alcoholic beverages to persons under the age of 21 years at Falcons. Ms. LaBelle's date of birth is April 29, 1974. At all times relevant to this proceeding, Ms. LaBelle was 19 years old. Ms. LaBelle's appearance on October 29, 1993 was not such that an ordinary prudent person would believe her to be of legal age. On October 29, 1993: Ms. LaBelle entered Falcon's and purchased a six-pack of Michelob Light beer. Petitioner's exhibit 7. Mr. Falcon sold the beer to Ms. LaBelle. Mr. Falcon did not ask Ms. LaBelle for any identification or other proof of age. Mr. Falcon also did not ask Ms. LaBelle her age. The products purchased by Ms. LaBelle were clearly labelled as beer, an alcoholic beverage, and were identified as alcoholic beverages.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a Final Order finding that Walter Falcon, d/b/a Falcon's JVJ General Store, is guilty of the violations of Section 562.11(1)(a), Florida Statutes, alleged in the Administrative Action of December 17, 1993. It is further RECOMMENDED that Walter Falcon, d/b/a Falcon's JVJ General Store, alcoholic beverage license number 64-0453, series 2-COP be revoked. DONE AND ENTERED this 9th day of November, 1994, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1994. APPENDIX The Division has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Falcon did not file a proposed recommended order. The Division's Proposed Findings of Fact 1 Accepted in 3. 2 See 4. 3 Accepted in 5-7. 4 Accepted in 7. 5 Accepted in 8. 6 Accepted in 9. 7 Accepted in 10. 8 Accepted in 12-14. 9 Accepted in 14. 10 Accepted in 11 and 15. COPIES FURNISHED: Miguel Oxamendi Assistant General Counsel Department of Business and Professional Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Jack McRay DBPR Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 John J. Harris Acting Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent Lois Davis, who does business under the name of The Cotton Club, holds License No. 60-00245, a Series 2-COP license issued by petitioner authorizing her to sell beer and wine for consumption on the licensed premises, which are located at 233 Southwest Fifth Street, Belle Glade, Florida. At one time Ms. Davis held License No. 60-576 which authorized sale of hard liquor as well as wine and beer for consumption on the premises of The Cotton Club. On January 25, 1980, as a result of foreclosure proceedings against respondent's landlords, an order was entered directing that "all right, title and interest to Alcoholic Beverage License 60-576" be conveyed to Mr. and Mrs. Robert Daniel. Robert Daniel, et ux. v. Gilbert Adams, et al. v. Lois Davis, No. 78-4667 CA (L) 01 G (Fla. 17th Cir.). At the time respondent applied for her current license, shortly before the previous license expired, she asked that the latter be extended so that she could sell off her stock of hard or spirituous liquors. Petitioner's Lieutenant Little explained that the matter was before a court but agreed to approach the judge. In September of 1980, L. Dell Grieve, a six-year veteran of the Belle Glade Police Department, visited The Cotton Club, saw liquor in a storeroom, and told the bartender that it should be removed. The bartender protested that it was all right to store the liquor while something was being worked out about the license, or words to that effect. Beverage Officers Ramey and Rabie accompanied Officer Grieve on November 15, 1980, on a visit to The Cotton Club, where they found Andre Lavince Moore, respondent's son, tending bar. In the storeroom, they found numerous bottles of spirituous liquors which they confiscated. Petitioner's Exhibit No. Wine and beer were stored in a separate place in the same storeroom. At no time after she lost License No. 60-576 did respondent or her agents or employees sell any alcoholic beverages other than wine or beer at The Cotton Club, or have any intention of doing so without petitioner's permission.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint. DONE AND ENTERED this 14th day of May, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1981. COPIES FURNISHED: Daniel C. Brown, Esquire Lt. J. E. Little 725 South Bronough Street Post Office Drawer 2750 Tallahassee, Florida 32301 West Palm Beach, FL 33402 Lois Davis The Cotton Club 233 Southwest Fifth Street Belle Glade, Florida
