The Issue The issue herein is whether Respondent is guilty of the allegations in the Notice to Show Cause.
Findings Of Fact Based upon all the evidence the following Findings of Fact are determined: Respondent, Annie L. Wright d/b/a Coffee's Draft Beer, is the holder of license number 26-1716,License Series 2-COP, issued by Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). The license authorizes Respondent to operate an establishment at 2601 Pearl Street, Jacksonville, Florida to sell beer and wine with consumption on premises. On or about August 12, 1982, Division Beverage Officer Hamilton visited Respondent's licensed premises for the purpose of purchasing illegal drugs. The officer sat at the bar and ordered a beer. While seated at the bar, he observed a card game in progress on the premises in which U.S. currency was being transferred between the players. He also observed two individuals named Red and Wesley who were smoking two cigarettes that the officer believed to be marijuana. When the officer asked a patron where he could purchase marijuana, he was directed to Nell, a cardplayer, who sold him a manila envelope allegedly containing marijuana for $5.00. A drug analysis performed at a later date confirmed that the envelope did indeed contain 2.6 grams of cannabis. The purchase of the drug was made in plain view of the card players, bartender and other patrons seated at the bar. At no time did the bartender (Faye) attempt to stop the gambling, use of drugs or the sale of drugs or to ask the individuals to leave the premises. On or about August 21, 1982, Officer Hamilton returned to Respondent's licensed premises around 11:15 a.m. Faye was on duty as bartender. While there the officer observed a female named Doris Jean Johnson take out a cigarette and smoke it in the presence of the bartender and another female patron. The cigarette was passed to the other female patron who also smoked it. Based upon the odor emanating from the cigarette, Officer Hamilton believed it was marijuana. While smoking the cigarette Faye cautioned Johnson to be careful since police officers occasionally visited the premises. The beverage officer also observed four unidentified males on the premises playing cards. United States currency was being bet on each game and transferred between the card players upon the completion of the games. On or about August 28, 1982, Beverage Officer Junious visited Re5pondent'5 licensed premises around 6:30 p.m. He sat at the bar and ordered a beer from a bartender named Tommy. Officer Junious asked Tommy where he could purchase some "grass". He was told someone on the premises should have some for sale but he (Tommy) wasn't exactly sure whom. While seated at the bar Officer Junious saw six hand-rolled cigarettes being smoked by patrons in plain view of the bartender and other patrons. Based upon their odor and the manner in which they were smoked, the officer believed the cigarettes to be marijuana. On or about September 4, 1982, Beverage Officer Hamilton visited the licensed premises around 4:10 p.m. and ordered a beer from an unidentified male bartender. He observed a card game in progress in which U.S. money was being bet and transferred between the players. The bartender also took a "cut" from the pot on several occasions. During the game Wesley, a card player, pulled a manila envelope from his pocket, had a female patron roll a cigarette from its contents, and then smoked it. Based upon its odor and the manner in which it was smoked, Officer Hamilton believed the cigarette to be marijuana. On or about September 29, 1982 Beverage Officer Hicks executed a search warrant on the premises and arrested Doris Jean Johnson for possession of cannabis. A laboratory analysis later confirmed that Johnson was in possession 8.6 grams of cannabis. Respondent stated that when the above events occurred, she was working another full-time job. For that reason she hired Faye to manage the establishment. When Faye was hired she was instructed not to permit gambling or smoking on the premises. She also posted a sign on the front of the building which read "No drugs allowed on premises. Because of her full-time job, and the fact she had no transportation and did not live nearby, Respondent visited the premises only at night. When she learned that drugs and gambling had been discovered at her business, she fired all employees who were working during that period of time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in the notice to show cause, and that her beverage license number 26-1716 be suspended for a period of thirty days. DONE and RECOMMENDED this 28th day of June, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire 725 South Bronough Street Tallahassee, Florida 32301 Annie L. Wright 1703 North Liberty Street Jacksonville, Florida Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue is whether the facts alleged in the Notice to Show Cause in this case are true and whether those facts, to the extent that they are true, warrant revocation, suspension or other discipline of the license of Respondent. The Notice to Show Cause explicitly alleges several drug-related and one disorderly conduct violations on the licensed premises and implicitly alleges the Respondent's culpable responsibility for the violations under Section 561.29(1)(a), Florida Statues. The Notice To Show Cause also alleges that Respondent maintained the licensed premises as a place where controlled substances were illegally kept, sold, or used in violation of Sections 823.01 and 561.29(1)(e), Florida Statutes and Sections 893.13(2)(c) and 561.29(1)(a), Florida Statutes.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: At all times relevant hereto, the Respondent, Rene Tamer, held alcoholic beverage license number 23-07334, series 2-COP, for the licensed premises known as El Emperador, located at 36-38 Ocean Drive, Miami Beach, Florida. On January 27, 1986, Beverage Investigator Carlos Baixauli went to the licensed premises of El Emperador. While there, he saw a black latin female walk over to a dog that was lying on the floor. Baixauli heard the woman ask the dog in spanish if he (the dog) wanted to have sex. The woman then fondled the dog's penis for approximately 20 minutes. Night manager Luis Tamer was present when this incident occurred. On February 5, 1986, Investigator Baixauli, while inside of the licensed premises of El Emperador, arranged to purchase one gram of cocaine from a white latin male, known as El Indio (the Indian). El Indio told Baixauli that he needed the $60.00 "up front." When Baixauli expressed concern as to whether El Indio would return with the cocaine or his money, El Indio stated that he worked at El Emperador, was always around and could be trusted. Baixauli gave El Indio $60.00. El Indio left the premises, returned and handed Baixauli a small plastic package of cocaine wrapped in a white napkin. Baixauli opened the napkin and conspicuously inspected the package of cocaine by holding it up to approximately eye-level and tapping it with his fingers. Luis Tamer was present and behind the bar at the time. On February 10, 1986, Investigator Baixauli visited the licensed premises of El Emperador. While Baixauli was at the bar talking to on-duty manager Luis Tamer, El Indio went over and asked Baixauli if he wanted to buy some "yeyo," a Spanish term for cocaine. Baixauli agreed to purchase one gram of cocaine and gave El Indio $60.00. El Indio subsequently returned and again interrupted a conversation between Baixauli and Luis Tamer. El Indio handed Baixauli a matchbook, from which Baixauli removed a plastic package containing cocaine. Baixauli held up the package and showed to his partner Garcia. El Indio told Baixauli that he could be found at El Emperador between 2:00 and 4:00 A.M. performing clean-up duties and at 11:00 A.M. stocking the beer coolers or running errands for Rene Tamer. On February 12, 1986, Investigator Baixauli visited the licensed premises of El Emperador. While there, Rene Tamer asked Baixauli: "Are you still working for the Division of Alcoholic Beverages?", to which Baixauli feigned ignorance and replied that he did not know what Rene Tamer was talking about. Rene Tamer, Luis Tamer and other employees then briefly retired to the kitchen where Baixauli observed them "looking out" at him as if to get a better view. El Indio arrived at El Emperador at approximately 2:00 P.M. and began stacking beers and cleaning the premises. El Indio asked Baixauli if he wanted any cocaine and Baixauli handed him $60.00 in front of Luis Tamer. El Indio later returned and handed Baixauli a matchbook. Baixauli removed a plastic package containing cocaine from the matchbook, held it up while inspecting it and showed it to his partner, Garcia. Luis Tamer was at the front counter during the transaction. On February 13, 1986, Investigator Baixauli visited the licensed premises of El Emperador. El Indio asked Baixauli if he could bring him anything. Baixauli gave El Indio $60.00 for one gram of cocaine. At approximately 4:00 P.M. El Indio returned and handed Baixauli a plastic package containing cocaine, which Baixauli held up and tapped with his finger. Luis Tamer, the manager, was standing behind the bar and observed Baixauli's inspection of the cocaine. Luis Tamer smiled and said nothing. On February 17, 1986, Investigator Baixauli visited the licensed premises of Emperador. Baixauli went to the bar and struck up a conversation with Luis Tamer. El Indio went over and asked Baixauli if he needed anything, to which Baixauli replied "yes" and gave El Indio $60.00. El Indio returned with some cocaine while Baixauli was still speaking with Luis Tamer. Baixauli removed the plastic package of cocaine from the matchbook and held it up to inspect it. Once again, Luis Tamer just smiled. On February 24, 1986, Investigator Baixauli returned to El Emperador. Baixauli went over to off-duty employee Camaquay and struck up a conversation. El Indio approached them and asked Baixauli if he wanted any cocaine. Baixauli responded that he did and gave El Indio $60.00, at which time Camaquay started laughing and said that he had been told that Baixauli was a "Narc" and must be setting up El Indio. El Indio later returned to where Baixauli was seated at the bar talking to Camaquay and manager, Luis Tamer, and handed Baixauli a matchbook. Baixauli removed a plastic package of cocaine from the matchbook and held it up for inspection, tapping it with his finger. Neither Camaquay nor Luis Tamer said anything to Baixauli. Later on in the evening of February 24, 1986, Baixauli asked Camaquay if El Indio was coming back to El Emperador. Camaquay told Baixauli not to worry, because he, Camaquay, could get cocaine from the same source as El Indio. Baixauli, after obtaining change from Luis Tamer, gave Camaquay $30.00 for a half-gram of cocaine. Camaquay later returned and tossed a plastic package of cocaine onto the bar in front of Baixauli. Baixauli held up the bag at eye level and tapped it with his fingers in view of manager Luis Tamer and other patrons. On February 26, 1986, Investigator Baixauli went to El Emperador and asked Luis Tamer if Camaquay was in. Camaquay went over to Baixauli, showed him a plastic bag containing marijuana and asked if he wanted to smoke. Baixauli said no. Camaquay then went into the restroom from which Baixauli then smelled a strong odor of marijuana. Manager Luis Tamer asked Baixauli where Camaquay was and Baixauli told him that Camaquay was in the bathroom smoking marijuana. Later at El Emperador on February 26, 1986, El Indio approached Baixauli and asked if he needed anything. Baixauli gave El Indio $60.00 for some cocaine. El Indio later returned and gave Baixauli a matchbook. Baixauli removed a plastic package of cocaine from the matchbook, held it up and tapped it with his fingers. Luis Tamer was standing behind the bar looking at Baixauli and Camaquay was standing by the pool table looking at Baixauli. After Baixauli received his cocaine from El Indio on February 26, 1986, Camaquay approached several patrons playing pool and asked if they wanted to buy drugs. Camaquay showed them a plastic package of marijuana which he took from his pocket, in full view of Baixauli, and Luis Tamer the manager, who were all looking in his direction. After Camaquay's attempt to sell marijuana to the pool playing patrons, he approached Baixauli and asked if he could bring him anything. When Baixauli agreed, Camaquay left the premises and shortly returned, tossing a plastic package of cocaine onto the bar in front of Baixauli and Luis Tamer, who was standing behind the bar in front of Baixauli. Baixauli held up the plastic bag and tapped it with his fingers. On March 4, 1986, Investigator Baixauli returned to El Emperador. Luis Tamer yelled to El Indio that his "friends" were there. El Indio approached Baixauli and Baixauli gave him $60.00. While El Indio was out obtaining Baixauli's order, on-duty employee Camaquay went over to Baixauli and asked if he wanted to buy some cocaine. Baixauli said "yes" and handed Camaquay $30.00 over the bar. El Indio returned shortly with a plastic package containing cocaine. Baixauli held up the package and showed it to his partner, Garcia. Camaquay later returned and handed Baixauli a plastic package of cocaine. Baixauli raised the bag and tapped it with his fingers. On March 11, 1986, Investigator Baixauli visited El Emperador. Luis Tamer was present and tending the bar. El Indio approached Baixauli and asked him if he needed any cocaine. Baixauli said "yes" and gave El Indio $30.00 for a half gram of cocaine. El Indio later returned and handed Baixauli a matchbook containing a plastic package of cocaine. Baixauli performed his usual post-sale inspection of the cocaine by holding the package up to approximately eye-level and tapping it with his fingers.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED that a Final Order be issued revoking the alcoholic beverage license number 23-07334, series 2-COP, held by Respondent, Rene Tamer. DONE and ORDERED this 22nd day of August, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 22nd day of August, 1986. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Professional Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927 Mr. Rene Tamer El Emperador 36-38 Ocean Drive Miami Beach, Florida 33149 Howard M. Rasmussen, Director Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, Florida 32301 James Kearney Secretary The Johns Building 725 S. Bronough Street Tallahassee, Florida 32301 Thomas A. Bell, Esquire General Counsel 725 S. Bronough Street Tallahassee, Florida 32301
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, revoke alcoholic beverage license number 23-1341, Series 2-COP, held by Maritza Garcia, d/b/a Maritza's Pub. RECOMMENDED this 23rd day of May, 1985 in Tallahassee, Florida. Hearings 1550 Hearings J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 FILED with the Clerk of the Division of Administrative this 23rd day of May, 1985.
The Issue The issue presented concerns the entitlement of the named Petitioners to he granted a new Series 2-COP beverage license from the Respondent, in the face of a disapproval letter entered by the Director of the State of Florida, Division of Alcoholic Beverage and Tobacco.
Findings Of Fact Bruce F. Eggett and Timothy R. Miller, the named Petitioners in this cause, have made application for the issuance of a new Series 2-COP beverage license. This application has been made with the Respondent, State of Florida, Division of Alcoholic Beverages and Tobacco and in response to this request the Director of the Division of Alcoholic Beverages and Tobacco wrote the Petitioners on July 10, 1980, and in the course of that correspondence indicated his intent to deny the license application. The stated ground for denial was that "one of the applicants convicted of felonies within past fifteen years." The stated authority for the denial was Section 561.15, Florida Statutes. 1/ The Petitioners did not agree with the decision of the Director and orally requested an administrative hearing in this cause. This request was made with Captain Jack Wallace, Beverage Officer and District Supervisor for the Orlando, Florida, District. After receiving the oral request, this matter was made known to the legal staff of the Respondent and one of the staff attorneys, acting at the behest of the Director of the Division of Alcoholic Beverages and Tobacco, asked the Division of Administrative Hearings to conduct the formal hearing pursuant to Section 120.57(1), Florida Statutes. The hearing was conducted on September 8, 1980, and although the Petitioners had been duly noticed of the hearing, the Petitioners did not attend nor offer anything in behalf of their request for license. The Respondent presented copies of the license application request of both Bruce Francis Eggett and Timothy Robert Miller. The application form mentioned here is a personal questionnaire, individually, completed by the Petitioners. (Copies of those personal questionnaires pertaining to Eggett and Miller may be found as the Respondent's Exhibits No.1 and 2 admitted into evidence respectively.) Question 6 of the questionnaire asks the following: Have you ever been: Arrested for violation of any other law of this state, any other state or the United States? (excluding minor traffic) If answer to any of these questions is yes, list aliases and give full disclosure of charges, dates, arresting agencies and places of arrest." To this question, the Petitioner Eggett marked "yes" and stated (1) 1971 breaking and entering and (2) 1977, delivery of Methaquaalude. In response to the same question, Petitioner Miller answered that he had been arrested in 1968 for public intoxication and blocking traffic in Canton, Ohio. No further proof was offered by the Respondent on the question of these arrests and the disposition made of the matters.
Recommendation It is RECOMMENDED that the Director of the State of Florida, Division of Alcoholic beverage and Tobacco, deny the Petitioners, Bruce F. Eggett's and Timothy P. Miller's request to be granted a new Series 2-COP beverage license. DONE AND ENTERED this 24th day of September, 1980, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1980. Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1980.
The Issue Whether Respondent's alcoholic beverage license should be revoked or otherwise disciplined on grounds that (1) on several occasions, cocaine was possessed, sold, or delivered on the licensed premises by Respondent's employees in violation of state law, and (2) by virtue of such Possession, sale, or delivery of cocaine by its employees, Respondent maintained a public nuisance on the licensed premises.
Findings Of Fact Respondent, Provende, Inc., a general partner in a limited partnership known as Alexandre, Ltd., is responsible for and operates a nightclub under the name of Club Alexandre (the "Club") at 1601 Biscayne Boulevard, Miami, Florida. In connection with its operation of Club Alexandre, Respondent holds beverage license No. 23-3953, Series No. 4-COP-SRX, which permits the sale and consumption of intoxicating beverages on the premises. (Stipulation of Parties, Testimony of Cachaldore.) Club Alexandre, located within the Omni International complex, is a large, multi-faceted club. Its premises consists of two levels totaling approximately 30,000 square feet. The first level includes a restaurant, bar area, three separate dance floors, bathroom facilities, and a stage for entertainment. Buffet lunches are served as early as 11:30 a.m., followed by a cocktail hour in late afternoon, dinner, and live entertainment which continues until 3:00 a.m. The second level is used primarily for private parties, weddings, and business meetings; it is enclosed in glass, and includes banquet rooms, bathroom facilities, storage rooms, and the Club's business offices. Ordinarily, the Club employs from 45 to 50 persons as busboys, bartenders, barmaids, waiters, maitre d's, cooks, dishwashers, office staff, promoters, and buyers. Most of the employees have been hired by Alex Cachaldora--general manager of the Club, stockholder, and president of Respondent. He either hires or approves the hiring of all Club employees and is the individual responsible for managing the Club on a daily basis. (Testimony of Cachaldora.) Club Alexandre is a semi-private club. Upon application, acceptance, and payment of a fee, persons may become members; public customers may also use the Club after screening at the entrance and payment of a cover charge. (Testimony of Cachaldora.) I. As to Count I On November 23, 1980, at approximately 12:10 a.m., D.C. Diaz--an off- duty officer of the Miami Police Department--paid a cover charge and entered the Club Alexandre. He sat at the bar counter, ordered a drink from a young barmaid dressed in a black uniform, and asked her if she could give him some "white magic", a street term referring to cocaine. She asked how much he wanted, he said "one gram"; she then informed him that the price would be $65. (Testimony of Diaz.) Diaz then gave the barmaid a $100 bill; she went to the cash register and returned with $35 in change which he gave to Diaz. She told him, "It will take between five and ten minutes." (Tr. 22-I-22.) Five to ten minutes later, a waiter--dressed in a black tuxedo-type shirt--approached from the restaurant area and gave the barmaid a folded napkin which she, in turn, gave to Diaz. He opened the napkin and found a small tinfoil packet inside containing a white powder which he suspected to be cocaine. (Testimony of Diaz.) Subsequent laboratory tests by the Metropolitan Dade County Public Safety Department confirmed that the white powder obtained by Diaz from the barmaid on November 23, 1980, was cocaine. II. As to Count 2 On January 23, 1981, at approximately 10:30 p.m., Beverage Officers Carmen Gonzalez and Joe Mato, together with Art Serig of the Miami Police Department, entered the Club Alexandre for the purpose of conducting an undercover narcotics investigation. They proceeded to the second floor area, sat at a table, and ordered drinks. (Testimony of Mato.) At approximately 12:25 am. (January 24, 1981), Officer Mato proceeded to the downstairs bar where a barmaid identified as Enid Epstein was tending bar. After ordering a drink, he asked her if she knew where he could obtain some "white magic"; she answered, "Yes, if he is still here it would be $65."(Tr. 22-I-53.) He agreed to the price and handed her $70. She took the money and proceeded to the kitchen area located in the rear of the premises. A few minutes later, he observed her running across the upstairs lounge area to the bar. After a brief delay, she proceeded toward the downstairs bathroom area. She then returned to Officer Mate, handed him a $5 bill folded into a small package, and explained, "This is the change that I owed you." (Tr. 22-I- 54.) He opened the folded $5 bill and found a small tinfoil packet containing a white powder which he suspected to be cocaine. (Testimony of Mato.) Subsequent Dade Public Safety Department laboratory tests confirmed that the white powder obtained by Officer Mato from Enid Epstein was cocaine. (P-2.) III. As to Count 3 On January 24, 1981, at approximately 9:20 p.m., undercover Beverage Officers Lou Clark end Lou Terminello entered the Club Alexandre for the purpose of continuing the Division's narcotic investigation. They seated themselves at the downstairs bar area end ordered drinks from a male bartender who introduced himself as "Bill", later identified as William Mendel. Officer Clark told "Bill" that they had picked up a couple of girls and asked if there was anything to help with the party. A conversation ensued about there being a lot of "snow" in Kansas--Clark using the term's ordinary meaning--and "Bill" answering, "That is not the kind of snow I was referring to." (Tr. 22-I-132.) In response to Clark's question about obtaining something that might help with their party, "Bill" indicated his contact wasn't there at that time, but that "they should be in later." (Tr. 22-I-133.) Officers Clark and Terminello then left the premises. (Testimony of Clark, Terminello.) About an hour later, the two beverage officers returned to the premises, and seated themselves at the downstairs bar. They ordered a drink from "Bill" and asked if his contact had arrived. He went over and talked to a young red-haired female barmaid--later identified as Enid Epstein-and returned to the officers; he then wrote "75" on a white bar napkin and placed it on the counter in front of them. Terminello said, "That is fine, we'll take two" (Tr. 22-I-136) and laid $80 on the table. Clark laid dawn a $100 bill. "Bill" took the $100, and $56 from Terminello's $80, leaving $24 in change. 4/ "Bill" then rang up a $6 sale an the register and placed the rest of the money in the right vest pocket of Enid Epstein. She then left the bar and proceeded into the kitchen area. A few minutes later she returned--via the staircase leading from the second floor--folded an unidentified object into a napkin, and handed it to Bill. He, in turn, handed the napkin to Terminello. After finding two small tinfoil packets in the napkin, the officers departed the premises. (Testimony of Terminello, Clark.) The two small packets contained a white powder. Subsequent Public Safety Department laboratory tests identified the white powder contained in one of the packets as cocaine. 5/ IV. As to Count 4 After his initial drug transaction with barmaid Enid Epstein during the early morning hours of January 24, 1981, (Paragraph 7 through 9, Count 2, above) Officer Mato returned to the Club Alexandre with Beverage Officer Emil Marrero. They arrived shortly before midnight on January 24, 1981, and seated themselves on opposite ends of the downstairs bar. After ordering drinks, Officer Mato called over barmaid Enid Epstein--who was tending bar--placed $70 on the bar and told her he would like to purchase some "white magic", another street name referring to cocaine. She took the money and proceeded to the kitchen area, then returned and handed Mato a folded $5 bill containing a small tinfoil packet. A few minutes later, the beverage officers departed the premises. (Testimony of Mato, Merrero.) The small tinfoil packet contained white powder which subsequent Public Safety Department laboratory tests identified as cocaine. (P-2.) V As to Count 5 At 11:00 p.m., on January 27, 1981, Beverage Officers Marrero and Delmonte entered the Club Alexandre and seated themselves at the downstairs bar. They ordered drinks from barmaid Enid Epstein. Shortly after midnight Merrero folded $70 in a small packet and placed it on the bar; he then asked Epstein if he could buy some "white magic", meaning cocaine. Taking the money, she went to the kitchen area and returned, placing a folded $5 bill in front of Marrero. Inside the folded bill was a small tinfoil packet. The officers then left the premises. (Testimony of Marrero, Delmonte.) Subsequent Public Safety Department laboratory analysis identified the contents of the tinfoil packet as cocaine. (P-3.) VI. As to Count 6 On January 28, 1981, at 12:45 a.m., Officers Clark and Terminello returned to the Club Alexandre in furtherance of their narcotics investigation. Seated at the lower level bar, they ordered drinks from Enid Epstein, the barmaid. Shortly thereafter, Terminello called her over end asked her if there was any chance of their getting some more "toot", another slang ward for cocaine. She replied that she would have to check to "see if any of my people are here." (Tr. 22-I-104.) She then left the bar, walked to the rear kitchen area and returned several minutes later saying, "Yeah, no problem. There is somebody here." Id. Each officer then placed $75 on the bar; she retrieved the money, left for the kitchen area and returned with a folded napkin which contained two small tinfoil packets. (Testimony of Clark, Terminello.) Subsequent Public Safety Department laboratory analysis identified the contents of one of the packets as cocaine. 6/ (P-5.) VII. As to Count 7 On January 29, 1981, at approximately 11:40 p.m. beverage officers, assisted by officers of the Miami Police Department, executed a search warrant on the premises of the Club Alexandre. During the search, Beverage Officer Joseph Maggio found a brown leather purse on a shelf in a locked storage room on the second floor. The outside pocket of the purse contained ten small tinfoil packets containing a white powder suspected to be cocaine. A further search of the purse revealed small baggies and six additional tinfoil packets--all containing suspected cocaine. (Testimony of Maggio, McEwan.) The purse also contained a checkbook and a Florida driver's license issued in the name of Luis A. Vargas. Vargas, the head chef for Club Alexandre, was subsequently located downstairs. After being advised of his rights, Vargas identified the purse as his own. Of the numerous packets of white powder found within the purse, only one was subjected to Public Safety Department laboratory analysis; the contents of that packet were identified as cocaine. (P-7.) VIII. Licensee's Duty to Exercise Reasonable Care end Diligence Before a beverage license can be suspended or revoked for a violation of law on the licensee's premises, the licensee must be found culpably responsible for the violation through his own negligence, intentional wrongdoing, or lack of diligence. 7/ In the instant case, no intentional wrongdoing by Respondent has been alleged or proved. Rather, the Division contends that the violations of state narcotics laws described above resulted from Respondent's failure to exercise reasonable skill and diligence in managing and supervising its operations. Respondent does not dispute that on seven occasions, as alleged, violations of state narcotics laws occurred on the premises; however, it denys negligence or lack of diligence. It affirmatively contends that it took every reasonable precaution to guard against the illegal sale or use of narcotics on the licensed premises. (Testimony of Cachaldora, Petitioner's Proposed Recommended Order, Respondent's Suggested Findings of Fact.) Respondent's contention is unavailing; the evidence establishes that Respondent failed to take reasonable precautions to guard against violations of narcotics laws on its premises--that Respondent failed to exercise reasonable care end diligence in managing its operations and supervising its employees. The following facts justify this conclusion: The alleged violations of narcotics laws occurred on the premises in a recurring, persistent, and practiced manner. They occurred at least seven times--over a 2 1/2- month period--and involved at least three separate employees of the Respondent. Despite the licensee's knowledge or suspicion, through its operators and managers, that violations of state narcotics laws occasionally occurred on it premises, the licensee never expressly enunciated--either to its employees or patrons--a policy forbidding the possession, sale, or use of narcotics. Employees were not admonished against involving themselves in such violations; neither were penalties for such violations announced in advance. Neither was information concerning possible narcotics law violations or convictions elicited from prospective employees. Given the nature and size of the Club, the number of its employees end patrons, and management's knowledge, or suspicion, that narcotics violations had occurred on the premises--the licensee took inadequate steps to (1) monitor activities on the premises, and (2) detect narcotics violations and prevent their occurrence. It employed off-duty Omni security guards only during times when business activity was greatest. At all other times, it relied on its employees for surveillance and security. The place where narcotics violations were most likely to occur--the bathroom facilities on two floors--were monitored by a single valet with minimal security training and who could neither speak nor understand English. The security efforts by the licensee were directed more to controlling disturbing or offensive behavior by patrons than pretending violations of law from occurring on the premises, or taking forceful action when such violations were detected. The quality of the licensee's surveillance program is illustrated by an experiment conducted by Beverage Officer Delmonte. On January 14, 1981--while at the Club with Beverage Officer Marrero--he observed several persons in the men's bathroom with running eyes and noses. During that same visit, Officer Marrero observed several waiters and a patron in the bathroom "sniffing something through their nostrils." (Tr. 22-I-78.) The Respondent's valet was also present in the bathroom at the time. On Officer Delmonte's next visit to the Club--January 27, 1981--he decided to conduct an experiment because of the suspicious activities observed on January 14, 1981. He went to the bathroom with a dollar bill rolled into a small tube; he placed it to his nostril and pretended to inhale something. The valet came in, observed this behavior, and acted surprised. Delmonte then acted embarrassed, smiled, and placed the dollar back in his pocket. After the valet handed him a kleenex, Delmonte exited the bathroom with the valet following him. At the foyer, the valet spoke with an older lady wearing a dark dress; the lady then engaged in a casual conversation with Delmonte and Enid Epstein--who was tending bar. Nothing further occurred in response to Officer Delmonte's experiment. (Testimony of Delmonte, Mendel, McEwen, Maggie, Mato, Clerk, Terminello, Marrero, Guerre, Robertson, Cachaldora, Puig; R-3, R-7.) Respondent's suggested findings of fact are adopted to the extent they establish: (1) Between November 23, 1980, and January 28, 1981, law enforcement officers made numerous undercover visits to the Club when they did not, or were unable to purchase illicit narcotics on the premises; (2) During undercover visits during the period in question--except for the January 14, 1881, incident in the men's bathroom end the incidents alleged in Counts 1 through 7--the officers did not observe anyone using or selling illicit narcotics or marijuana. Moreover, two off-duty police officers who sometimes socially visited the Club-- and were encouraged to do so by Respondent--did not observe any narcotics violations taking place; (3) Each sale of cocaine, as alleged, was preceded by a law enforcement officer's solicitation to purchase; and (4) Unless observed in the act, it is difficult to ascertain--with certainty--whether a person uses, sells, or is inclined to use or sell narcotics. (Testimony of Stillman, Diaz, Sokolowski, Delmonte, Mandel, McEwen, Maggie, Mato, Clark, Terminello, Marrero, Guerra, Robertson.) IX. Appropriate Disciplinary Penalty No aggravating evidence was offered by the Division to justify permanent license revocation; no intentional wrongdoing by Respondent, or its manager, has been shown. Respondent has no record of prior infractions of the Beverage Law. There is no evidence which indicates that Respondent's operator, Alex Cachaldora, was aware that several of his employees were involved with illicit narcotics. In light of the facts of this case, permanent revocation of Respondent's beverage license is unwarranted; rather, a 90-day suspension is appropriate, less any days during which Respondent's beverage license has been effectively suspended by emergency order of the Division. (Testimony of Cachaldora.) Both parties have submitted proposed findings of fact for consideration in this proceeding. To the extent such findings have not been adopted or incorporated in this Recommended Order, they are rejected as irrelevant or unnecessary to resolution of the issues presented or unsupported by the evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, It is RECOMMENDED: That the Division enter a final order suspending Respondent's beverage license No. 23-3953, Series No. 4-COP-SRX, for 90 days; provided, however, to the extent Respondent's license may have been effectively suspended by prior emergency order of the Division, the period of such emergency suspension should be subtracted from the 90-day period. DONE AND RECOMMENDED this 10th day of June, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1981.
Findings Of Fact The Respondent, Edward Lee Howell (Howell), holds alcoholic beverage license number 46-01252, Series 2-COP, for licensed premises located at 2712 Towles Street, Fort Myers, Florida, known as Mr. B's Lounge. Violation of Local Ordinance Lee County Ordinance 76-9, as amended by Ordinance 79-1, provides in pertinent part: All places or establishments within the unincorporated area of the county and lawfully licensed by the State Beverage Department of Florida, may sell or serve, or permit to be sold, served or consumed, any type of alcoholic beverage of any kind whatsoever for consumption both on or off the premises only during the hours of 7:00 a.m. and 2:00 a.m. of the following morning every day of the week, including Sundays. Howell was cited on or about July 1, 1989, for allegedly violating this "hours of sale" ordinance, but he was aquitted in August, 1989. In 1990, Lee County Sheriff's Office (LCSO) Deputy James Nygaard warned Howell a half dozen times not to sell alcoholic beverages after 2 p.m. On or about December 28, 1990, Nygaard cited Howell for allegedly violating the ordinance by allowing a patron to consume alcoholic beverages on the premises after hours. Howell was tried and acquitted because it was not proven that the patron was drinking an alcoholic beverage. After successive reassignments to another patrol zone and to work as a detective, Nygaard was reassigned to patrol the East Zone in January, 1995. Beginning in January, 1995, Nygaard warned Howell twice not to sell alcoholic beverages after 2 p.m. On or about March 11, 1995, Nygaard cited Howell for violating the ordinance. Howell denied the charges, which still were pending in criminal court at the time of the final hearing. Nygaard testified that, this time (in contrast to the December, 1990, charge), he retained a sample of the contents of the container out of which the patron was drinking after 2 p.m. He testified that the sample was tested and found to be an alcoholic beverage. But the evidence shed no light on the extent of Howell's responsibility for the violation (e.g., how long after 2 p.m. the violation occurred, whether the violation was flagrant, whether Howell was even on the premises at the time of the violation or, if not, how diligent he was in training his employees on how to prevent violations of the "hours of sale" ordinance.) Howell denied that he sells or serves or allows alcoholic beverages to be served, sold or consumed in violation of the ordinance. Mr. B's remains open after 2 a.m. and patrons dance and listen to music, but Howell testified that they are not allowed to drink alcohol in the lounge after 2 a.m. Towles Street Near Mr. B's Mr. B's Lounge is in a section of Fort Myers, Florida, where in recent years violent crime increasingly has become an undeniably serious problem to area residents and the LCSO, which is the law enforcement agency having jurisdiction. Towles Street is a two-lane road that runs between Edison Avenue and State Road 82 outside the city limits of the City of Fort Myers. During the evening hours, especially on weekends, large numbers of people park cars in the street and congregate in the area. Some of these people patronize Mr. B's, but many more congregate in the street and on both sides of the street up and down Towles Street in the vicinity of Mr. B's. A good number of these people drink too much and become noisy and violent. (Not all of the drinking takes place in Mr. B's, and not all of what is drunk comes from Mr. B's. Many of these people buy their alcoholic beverages elsewhere, or bring them from home, and drink their alcoholic beverages outside on and along Towles Street.) Many drive at recklessly high speeds up and down the street (when the streets are passable.) Loud music is played from stereos in car driving up and down the street and parked in the street. Some of these people, drunk or not, come to the area with the intention to engage in crime, violence and other disruptive conduct. More and more carry knives and firearms, or keep them in their cars, and many use or threaten to use their weapons. Assaults and armed robberies are common. The area around and including Mr. B's has become known to those who frequent it as a place to go to "hang out" and be a part of this violent scene. The violence, including stabbings and shootings, has become so prevalent that residents of the area who do not participate in the violence are afraid to leave their homes at night and, even in their homes, they are not completely safe from stray bullets. The violence and reputation for violence on Towles Street in the vicinity of Mr. B's has become like no other place in Lee County. One LCSO deputy testified that he has heard more automatic weapon fire on duty at night on Towles Street than he heard during his entire experience as a member of the United States armed forces. Some deputies testified that, especially on weekends, there often are so many cars parked illegally in Towles Street that deputies patrolling the area or responding to complaints have to park their police vehicles on Edison Avenue or State Road 82 and walk in. They believe that, when they are seen approaching, the people congregating in the vicinity of Mr. B's lock their weapons in cars and that many of them enter Mr. B's to avoid the deputies. On occasion, the crowds of people encountered by LCSO deputies on Towles Street do not disperse so readily. Once, two deputies responding to a call for service in the vicinity of Mr. B's were assaulted before reaching the lounge and received injuries, including a broken jaw, requiring medical attention in the hospital. (Howell assisted the deputies in subduing the assailant.) On another occasion, it took deputies approximately an hour to control and disperse the crowd, during which time another call for LCSO assistance had to go unanswered for half an hour. Some of the incidents on Towles Street occur before 2 a.m., but many occur later, after the LCSO patrols have been reduced to a single shift. With fewer deputies on patrol, the violence on Towles Street becomes an even greater problem for law enforcement. By the time backup arrives in response to calls on Towles Street, practically no deputies remain available to patrol or respond to calls for service in the rest of the zone. The Licensed Premises No sketch of the licensed premises was introduced in evidence. The evidence was that Mr. B's faces Towles Street and that the front door opens onto a front step that is separated from the street by an unpaved strip of grass and dirt about seven feet wide. Until very recently, Mr. B's had only four parking spaces and did not have a parking lot. The precise extent of the licensed premises was not made clear from the evidence. During an inspection of the licensed premises on February 23, 1995, DABT Special Agent Odom recovered 141 spent gun shell casings in the vicinity of Mr. B's, including: seventy-four 74 9mm's; three 38 Specials; sixteen 16 357 Magnums; four 45-caliber; three 30-caliber; three 44 Magnum; one 10mm; 2 25- caliber; and nineteen 12 gauge shotgun shell cases. Some of these spent shell casings were recovered between the front door to Mr. B's and Towles Street. Most were recovered within 15 to 20 feet from the lounge building, but some were recovered as far as 20 yards away, including some that were found all the way across Towles Street on the opposite side of the street. Four were recovered under the cushion of a couch inside Mr. B's, but there was no evidence how they got there and no evidence that they were fired inside Mr. B's. Except for these four, it was not proven that any of the spent shell casings actually were recovered from the licensed premises themselves. From February, 1991, through October, 1994, there have been 135 calls for LCSO service arising out of incidents in the vicinity of Mr. B's. Some of the calls reported finding lost property or suspicious persons or were for the purpose of reporting some other information to the LCSO. Many of the calls were for relatively minor offenses, such as disturbances, trespassing, vandalism, nuisances, car accidents and highway obstruction. But many were for more serious crimes such as assaults, use or display of firearms, burglaries and robberies. Although many of these calls were placed from a telephone at Mr. B's, the evidence was not clear which, if any, of the incidents instigating calls actually occurred at Mr. B's. It seems clear that the police records use a reference to "Mr. B's" as as short hand way of describing Towles Street in the vicinity of Mr. B's. Some of the incidents in the vicinity of Mr. B's constituted violent crimes. Since 1988, there have been: two murders; four attempted murders; 11 batteries with a firearm; two batteries with a knife; one sexual battery or attempted rape; one shooting into a vehicle; one robbery with a firearm; and two batteries with a dangerous weapon. Most of these crimes occurred outside of Mr. B's, and the evidence did not prove that they occurred on the licensed premises, or how close to the licensed premises they occurred. One incident that clearly occurred on the licensed premises was a fight that broke out during the early morning hours of February 12, 1995. One person was hit on the head with a claw hammer, and another was stabbed with a knife. After some of the participants left Mr. B's, fighting continued outside on the street. Someone telephoned the LCSO, and when deputies arrived, they witnessed four men kicking another who was lying on the ground behind a car, while approximately fifty other people stood watching. As the deputies approached, a man with a sawed-off shotgun walked up to the man lying on the ground and shot him in the leg. It was not clear from the evidence whether any of the people involved in the incident outside on the street had been patrons of Mr. B's. On or about August 3, 1993, the LCSO investigated an incident in which a patron of Mr. B's was shot while walking out the door of Mr. B's. The victim did not know who shot him or where the shot came from. On or about June 7, 1994, the LCSO investigated an incident involving an alleged sexual battery or attempted rape that occurred in the restroom at Mr. B's. The alleged victim in that case withdrew her complaint, and the case was closed. One LCSO deputy testified that he has received several telephone calls from a pay phone down the street at Edison Avenue reporting assaults and other crimes that allegedly occurred inside Mr. B's and that the victim reportedly was afraid to place the call to the police while still at Mr. B's (for fear of further assault.) But there was no specific evidence about any of these alleged crimes. Although some local residents blamed Mr. B's for the loud music heard in the neighborhood, especially on weekend nights, it was not clear whether the loud music being heard by the local residents actually is coming from Mr. B's, as opposed to being played from car stereos on the streets. The Respondent's Responsibility for the Violence and Noise It was not proven that Howell does anything to condone violence and noise in or around Mr. B's Lounge or that he is protecting criminals from apprehension by the LCSO. To the contrary, almost all of the crime reports to the LCSO from 2712 Towles Street were placed by Howell himself or his employees. Not only has Howell telephoned the police for assistance on many occasions, he also has put himself at risk of physical harm by helping law enforcement officers subdue violent subjects in and around the premises. In addition, Howell employs a bouncer who uses a metal detector to try to insure that no weapons are brought into Mr. B's and denies entrance to certain people known to cause problems. (Surprisingly, given the kind of people who congregate on Towles Street, there also was no evidence sufficient to support a finding of illegal drug use in or about the licensed premises.) One LCSO sergeant recalled an occasion when he confronted Howell about problems in and around Mr. B's and, in the sergeant's opinion, Howell treated him rudely. Howell does not recall the incident. No other law enforcement officer testified to any occasion when Howell was anything but cooperative with law enforcement. There was no evidence that the DABT counseled Howell on measures to take to reduce violence on his licensed premises. For example, the DABT could have required the Respondent to supervise and control the entire licensed premises, including both the building and grounds (including parking lot). The Respondent also could have been required to fully cooperate with law enforcement in its efforts to control crime in the area, including allowing LCSO complete access to the licensed premises. See Section 562.41(5), Fla. Stat. (1993). Instead, the evidence was that the LCSO complained to the DABT about Mr. B's on or about February 20, 1995, that the DABT inspected the premises on February 23, 1995, and that the DABT then initiated the proceedings that led to the issuance of the Emergency Suspension Order on or about March 16, 1995. Since Mr. B's has been under the Emergency Suspension Order, there have been markedly fewer problems for law enforcement and law-abiding residents in the area. The people who had been congregating near Mr. B's and causing problems either have found somewhere else to congregate or have dispersed for the time being. Mr. B's apparently attracted and served as a focal point for these people. It seems that suspending the Respondent's license has had a positive effect on the level of crime in the immediate vicinity. (However, some law enforcement officers seemed to support Howell's opinion that the people causing the problems near Mr. B's eventually will find another place to hang out and cause problems.) Clearly, the LCSO and many of the local residents would like to see Mr. B's closed permanently. But the reduction in violence and loitering after the Respondent's beverage license was suspended does not, in itself, prove that the Respondent was culpably responsible for violence and loitering that occurred while the licensed premises were open and operating. Howell operates a package store, not far from Mr. B's but within the city limits of Fort Myers, and near another lounge. City police regularly patrol the area, and it has relatively few of the problems experienced on Towles Street. A more frequent and visible law enforcement presence on Towles Street also would reduce violence and disturbances there. Five to ten years ago, Mr. B's operated in the same location with fewer problems. In those earlier years, LCSO patrolled the area more frequently. In those days, parking laws were enforced more consistently, and LCSO patrol cars could drive down Towles Street without difficulty. When loiterers were encountered in the street, LCSO required them to either go inside Mr. B's or go home.
Recommendation Based on 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 (DABT), enter a final order: (1) dismissing the charges in the Notice to Show Cause against the Respondent, Edward Lee Howell; and (2) also dismissing the Notice to Show Cause seeking to impair the licensed location owned by the Respondent, William A. Bell. RECOMMENDED this 21st day of April, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 21st day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 95-1403 and 95-1404 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. (However, the reputation attached to licensed premises actually applies not only to the licensed premises but also to Towles Street and the area surrounding Mr. B's. First sentence, rejected as not proven. (Many of the 176 calls on DABT Ex. 3 were not made from Mr. B's.) Second and third sentences, accepted and incorporated to the extent not subordinate or unnecessary. (However, it only was proven that a few of the violent acts actually were committed on the licensed premises.) Accepted and incorporated to the extent not subordinate or unnecessary. (One of the questions for determination in this case is the extent of Howell's "affirmative duty.") Rejected as not proven that the violent acts were committed by patrons or, if they were patrons, that they were committed on the licensed premises. Otherwise, the first sentence is accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. However, in the public mind, "Mr. B's" describes not just the licensed premises but also Towles Street and the area surrounding Mr. B's. First sentence, rejected as not proven that the initial service call reported the shooting of a patron. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the incidents described in the second sentence occurred during the investigation. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the 141 shell casings were recovered in the Respondent's "parking lot." (They were recovered from the immediate vicinity of Mr. B's, starting from the side of the building and extending for up to approximately 40 yards away, and including on the opposite side of Towles Street across from the licensed premises. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. (Nygaard warned Howell several times in 1990 before arresting him. Howell was tried and acquitted on a judge's ruling that it was not proven that the patron was drinking alcoholic beverages after hours. After Nygaard was reassigned to the East Zone in January, 1995, he again arrested Howell on similar charges, which Howell denies and which are still pending.) Accepted but subordinate and unnecessary. Accepted and incorporated. Howell's Proposed Findings of Fact. (Howell wrote a letter from which findings arguably have been proposed, as indicated.) Rejected as contrary to the greater weight of the evidence that the crimes described in the evidence did not "in the vicinity of" Mr. B's. Accepted that the Respondent recently added a parking lot and incorporated to the extent necessary. Accepted that, if they cooperate, the Respondent and LCSO can solve some of the problems, and incorporated to the extent necessary. Bell's Proposed Findings of Fact. (Bell also wrote a letter. Much of the letter is argument but findings arguably also have been proposed, as indicated. For purposes of these rulings, the unnumbered paragraphs of Bell's letter are treated as consecutive, separate proposed findings.) Accepted and incorporated. Rejected as argument and as not supported by any evidence. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, rejected as argument and as conclusion of law. Accepted and incorporated that Howell called LCSO frequently to report crime. Rejected as not proven that none of the incidents involved Mr. B's, that all involved "just the neighborhood"; accepted and incorporated that many of the calls involved incidents occurring off the licensed premises. The rest is rejected as argument and as subordinate and unnecessary. Rejected as not supported by the record that most of the alcoholic beverages drunk by people hanging around in Towles Street are from sources other than Mr. B's; accepted and incorporated that much is, and that all the liquor is. (Mr. B's has a Series 2-COP license.) Rejected as argument, as subordinate and unnecessary, and as unsupported by any evidence. Accepted and incorporated that LCSO has reduced patrols in the area, in part due to budgetary constraints but also in part due to the illegally parked cars that block Towles Street, and that Howell places many of the telephone calls reporting crime in the area. Otherwise, rejected in part as unsupported by any evidence, in part as argument and conclusion of law, and in part as subordinate and unnecessary. Accepted and incorporated that reduced police presence in areas like Towles Street increases crime. Otherwise, rejected as argument, as subordinate and as unnecessary. Accepted and incorporated that the DABT did not prove lack of due diligence. Otherwise, rejected in part as argument and conclusion of law, and in part as subordinate and unnecessary. In part, rejected as contrary to the greater weight of the evidence (that only one of the violent crimes was reported to have originated in Mr. B's.) (See Findings of Fact 19 and 20.) Otherwise, accepted and incorporated in part. In part, rejected in part as argument and conclusion of law, and in part as subordinate and unnecessary. Accepted and incorporated that the wounds were not received on the licensed premises. Otherwise, rejected as cumulative. Accepted and incorporated that the evidence did not clearly identify either the victim or the assailant as being patrons. Otherwise, rejected in part as argument and conclusion of law, and in part as subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Cumulative. Accepted and incorporated that Towles Street presents a difficult police problem and that increased patrols and manpower could help. Otherwise, rejected in part as unsupported by any evidence (the nine-block area), in part as argument, and in part as subordinate and unnecessary. Accepted and incorporated that many people congregate in the streets and that policing them is made difficult by the congestion. Otherwise, rejected in part as argument and in part as subordinate and unnecessary. 17.-18. Cumulative. Rejected that Tamayo's statement was naive. Accepted and incorporated that the problem could move elsewhere if Mr. B's were closed. Otherwise, argument, subordinate and unnecessary. Generally accepted and incorporated to the extent not subordinate or unnecessary, or argument. However, Bell does not seem to acknowledge the serious problems faced by law enforcement in the Towles Street. Rejected as contrary to the greater weight of the evidence that no problems occur before 2 a.m. Also, subordinate, unnecessary, and argument. 22.-23. Argument. COPIES FURNISHED: Thomas A. Klein, Esquire Chief Attorney Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1020 Edward Lee Howell 1348 Brook Hill Drive Ft. Myers, Florida 33916 William A. Bell 19450 Tammy Lane Ft. Myers, Florida 33917 Lynda L. Goodgame, Esquire General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 John J. Harris, Division Director Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1020
The Issue Whether Respondents violated the terms of probation of the Consent Agreement, effective January 12, 1990. Whether Respondents committed the violations alleged in the notices to Show Cause.
Findings Of Fact As to Case No. 90-2711: At all times pertinent to this case, Respondents were doing business at 3200 South Orlando Drive, Sanford, Seminole County, Florida as Cesare's Palace, under alcoholic beverage license number 69-00467, series 4-COP-S. On April 19, 1989 a formal hearing was conducted in Sanford, Florida, and presided over by Hearing Officer Mary Clark of the Division of Administrative Hearings, in which the parties were the same. On August 4, 1989, a Final Order was issued in which the Division Director adopted in toto Hearing Officer Clark's findings of fact, all but one of her conclusions of law, and adopted her recommendation for a finding of guilty. The Division Director changed the recommended penalty to a twenty day suspension and a $1,000.00 civil penalty. The twenty day suspension was to commence, and the $1,000 civil penalty was to be paid on August 23, 1989. Respondents timely appealed Petitioner's Final Order on August 14, 1989. On August 22, 1989, Petitioner stayed the imposition of the penalty pending appellate review. Respondents and Petitioner executed a Consent Agreement in settlement of the case. Accordingly, Respondents withdrew their appeal, and timely paid the $1,000.00 civil penalty. Petitioner suspended imposition of the 20 day license suspension for 12 months commencing on January 12, 1990. The Agreement and the Addendum thereto were signed by both Respondents and their attorney. Respondents agreed to abide by certain terms of probation, as set forth in the Consent Agreement, and acknowledged that violation of one or more of the terms of probation would result in the imposition of the 20 day license suspension. The terms of probation called for Respondents to affirm in writing not later than 30 days after the effective date of the Consent Agreement, to the Division of Alcoholic Beverages and Tobacco, that certain specified tasks had been accomplished. The Consent Agreement became effective on January 12, 1990 when it was accepted by the Director, Division of Alcoholic Beverages and Tobacco. On or about February 11 (a Sunday) or February 12, 1990, Law Enforcement Investigator David Ramey went to the licensed premises to ascertain whether Respondents had accomplished the tasks which were to be affirmed in writing to the Division as being accomplished. The task of posting signs indicating that identification was required had been accomplished. The task to provide "written policies and procedures for employees to ensure that they are familiar with Florida drivers licenses, Florida identification cards, and passports; that they are sensitive to the importance of ensuring that alcoholic beverages are not sold to the underaged; that they are capable of, given a birth date, computing age; and that they understand that service of alcoholic beverages must be refused to those whose age and/or identification appear questionable to the employee" was not accomplished. The task of training and instructing all employees on the written policies and procedures relative to identification was not accomplished. The task of carefully monitoring employees to ensure that they are following company policy was not accomplished. No written affirmation reporting accomplishment of the above tasks was forwarded to the Division either within or without the thirty day period. The Consent Agreement included as a term of probation that Respondents become certified responsible vendors by March 1, 1990. Respondents' Application for Certification as a Responsible Vendor is dated March 5, 1990; the application was not forwarded to the Bureau of Vendor Training until April 7, 1990. Respondents had not become certified responsible vendors by March 1, 1990. William Walter Proctor was born on October 1, 1970 and has been serving as an underaged operative with the Division of Alcoholic Beverages and Tobacco since late January or early February 1990. When serving as an underaged operative, Mr. Proctor is to bring his drivers license, and to possess only the money given to him by the investigators. If asked for identification, Mr. Proctor is instructed to provide his drivers license which accurately reflects his date of birth. If asked his age, Mr. Proctor is instructed to answer truthfully. On March 6, 1990, Proctor was serving as an underaged operative with the Division of Alcoholic Beverages and Tobacco. He was working with Investigators Dave Ramey and Mark Douglas. During the evening Proctor entered the licensed premises, Cesare's Palace, located at 3200 South Orlando Boulevard, Sanford, Florida. Investigator Douglas also entered the premises. Proctor went to the bar and took a seat. The bartender took Proctor's order for a Michelob light beer, and asked to see Proctor's identification. Proctor gave the bartender his drivers license. The bartender took the license to the end of the bar, held it under a light, and then returned the license to Proctor and handed him the beer he had ordered. Proctor observed the bartender open the Michelob Light beer, and place the beer in front of Proctor. Proctor took possession of the beer, and the bartender took possession of the $1.85 provided by Proctor in payment for the beer. Proctor immediately turned the Michelob Light beer over to Investigator Douglas. Proctor identified Petitioner's Exhibit 3 as the drivers license he provided the bartender at Cesare's Palace on March 6, 1990. Mark Douglas is a law enforcement investigator for the Division of Alcoholic Beverages and Tobacco. He, along with Investigator Ramey were working with the underaged operative William Walter Proctor on March 6, 1990. Investigator Douglas entered the licensed premises, Cesare's Palace around 9:15 p.m. on the 6th of March. Some ten minutes later, underaged operative Proctor entered the premises. Investigator Douglas observed Mr. Adams open a bottle of Michelob Light beer and place it in front of Mr. Proctor. Investigator Douglas deals with alcoholic beverages every day of his working life. He is familiar with Michelob beer, and has seen bottles of Michelob Light before. The bottle of Michelob Light he received from Mr. Proctor on the 6th of March looked like the other such bottles he had seen. Additionally, Investigator Douglas took a sample of the beer prior to destroying the remaining contents of the bottle. Investigator Douglas has been trained in identifications; drivers licenses in particular. He knows that the yellow background against which Proctor's picture is depicted on Petitioner's Exhibit 3 means that the individual to whom the license was issued was under 21 at the time of the issuance. Investigator Douglas identified Respondent Polidoro as having been seated at the end of the bar when the sale to Proctor occurred. When Mr. Adams was looking at Mr. Proctor's drivers license, Respondent Polidoro leaned forward and looked down the bar. Respondent Polidoro has very bad vision; he is both nearsighted and farsighted. His glasses were not on at the time of the events involving Adams and Proctor. Respondent Polidoro has known Adams for two years and has complete confidence in him. On March 6, 1990, Respondent Polidoro was not aware that his bartender, Adams wore reading glasses. Adams made the mistake of forgetting his glasses. He left them in his room. Thus he was without his reading glasses while tending bar at the licensed premises on March 6, 1990. Respondent Polidoro is of the opinion that he has twice been entrapped by Petitioner into selling an alcoholic beverage to a minor, and that Petitioner, on 15 other occasions has failed to entrap Respondents. As to Case No. 90-5983: Marino Benevides went to work for Respondents as the housekeeping manager of the Cavalier Motor Inn, located at 3200 South Orlando Drive, in April, 1988. On or about May 1, 1989, Benevides leased from Respondents the lounge that is part of the Cavalier Motor Inn complex. The rent was $7500 a month, and was paid to Respondent Polidoro. Although the lease agreement was reduced to writing, it was never signed. Benevides hired and paid the employees of the lounge. Benevides hired and paid for the entertainment in the lounge. Benevides paid the utility bill for the lounge. Had there been net profits generated by the lounge, the net profits would have been received by Benevides. Benevides' obligation to Respondents was to pay them a fixed sum of $7500 a month. Payment of distributors for alcoholic beverages was made by the Respondents who were then reimbursed by Benevides. Benevides could not pay the distributors directly because the liquor license was not under his name. Respondent Milazzo was aware that leasing the lounge was a violation. The Respondents had the authority to "kick out" Benevides and that is what they did on January 27, 1990. "No violations of Section 562.11(1)(a), Florida Statutes during the probationary period" is a term of probation in the Consent Order.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondents be found guilty of the following offenses: Respondents violated the terms of probation contained in the Consent Agreement, dated January 12, 1990, as follows: Respondents did not affirm to the Division, prior to February 12, 1990, that written policies and procedures for employees to ensure compliance with the Florida Beverage Laws had been established; that all employees had been properly trained in the identification of underaged persons; and did not carefully monitor all employees to ensure that they were following company policy. 1990. Respondents did not become certified responsible vendors by March 1, On March 6, 1990, during the probationary period, a bartender employed by Respondents, on the licensed premises, sold an alcoholic beverage to a person under 21 years of age. On March 6, 1990, a bartender employed by Respondents sold an alcoholic beverage on the licensed premises to a person under 21 years of age, in violation of Sections 562.11 and 561.29, Florida Statutes, and Respondents were negligent in failing to exercise due diligence in supervising its employees and maintaining surveillance over the premises. Respondents failed to maintain control of the licensed premises by leasing the premises to an independent contractor contrary to Rule 7A-3.017, Florida Administrative Code. It is further RECOMMENDED that: Respondents' probation be revoked and that the alcoholic beverage license held by Anthony J. Milazzo and Cesare A. Polidoro, License No. 69-00467, Series 4-COP-S be suspended for 20 days. Based on the sale of an alcoholic beverage to a person under age 21 and for failure to maintain control of the licensed premises, Respondents' alcoholic beverage license, No. 69-00467, Series 4-COP-S, be suspended for 90 days, to run concurrently with the suspension for violation of probation, pay a fine of $1,000 and submit proof of compliance with the terms of the Consent Agreement prior to reinstatement of the license. DONE AND ENTERED this 30th day of November, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 30th day of November, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact Accepted in substance: paragraph 1 through (blank on original document-ac) Respondent did not file proposed findings of fact. COPIES FURNISHED: John B. Fretwell Deputy General Counsel Dept. of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 Richard A. Colegrove, Jr., Esquire 101 W. First St., Suite C Sanford, FL 32771 Leonard Ivey, Director Dept. of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 S. Bronough St. Tallahassee, FL 32399-1000 Joseph Sole Secretary Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000
Findings Of Fact At all times pertinent to this hearing, Respondent, James A. Singleton, doing business as Harvey's Bar B Que, possessed 2-COP Beverage License No. 60- 2295 at his place of business at 717 North Tamarind Avenue, West Palm Beach, Florida. A 2-COP beverage license permits the sale of only beer and wine for on-premises consumption. No hard liquor is permitted to be sold, served or stored on the premises covered by the license. On December 17, 1982, armed with a search warrant properly issued based on probable cause provided by confidential informants, a West Palm Beach Police Department patrol headed by Lt. (then Sgt.) Eugene G. Savage entered Respondent's premises at 5:15 p.m. In a separate room to the rear of the building they found 2.2 pounds of a leafy vegetable matter packaged, some in 40 small manila envelopes (nickel bags) and some clear plastic bags. This vegetable substance was subsequently analyzed at the Palm Beach County Crime Laboratory and determined to be marijuana. At the same time, the officers also found 92 sealed half-pint bottles of hard liquor consisting of rum, vodka, gin and brandy. When Respondent was arrested at the time of the search, he had over $400 on his person. None of this money had serial numbers which matched those of money used in an undercover purchase of marijuana several days previously. Respondent explained the large sum of money as being the proceeds of his biweekly paycheck from his regular job on the railroad which he had received on December 15, 1982. Since there was no evidence to show that the undercover purchase of marijuana, which formed a part of the basis for the probable cause to issue the search warrant, was made from Respondent, there is no reason to doubt his explanation. Respondent contended he did not know anything about the marijuana. He has a full-time job with the railroad, a job he has held for 30 years, and had turned the running of his restaurant, which he had purchased for his retirement years, over to his son. His son, who has a record of prior arrests and incarceration for drug abuse, had assured him he would not do anything wrong. Since the search, the son has gotten into some undisclosed additional trouble and has run away. As for the liquor, Respondent contends that he purchased it for the personal consumption of his wife and himself. He bought it in large amounts to get it cheap. However, the half-pint is the favored size of the "Saturday Night" drinker, and, because of the large volume and the diverse nature of the stock, it is clear it was purchased for resale. Respondent is 60 years old and hopes to work for the railroad a few more years before he retires to run his restaurant. In fact, he has to work, he says, to pay off the fines incident to this situation.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent's alcoholic beverage license No. 60-2295 be revoked. RECOMMENDED this 2nd day of December, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1983. COPIES FURNISHED: John A. Boggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. James A. Singleton c/o Harvey's Bar B Que 717 North Tamarind Avenue West Palm Beach, Florida 33401 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Timothy John O'Dea, on behalf of Respondent, Skyline Caterers Corporation, d/b/a Cracker Barrel, willingly and knowingly falsely swore to having no criminal charges filed against him within the past 15 years on his Alcoholic Beverage and Tobacco license application on September 1, 1999.
Findings Of Fact Petitioner, the Department of Business and Professional Regulations, Division of Alcoholic Beverages and Tobacco, is the Agency charged with the responsibility of administrating and enforcing the beverage laws of the State. Chapters 559-568 Florida Statutes. At all times material to this proceeding, Respondent, Skyline Caters Corporation, d/b/a Cracker Barrel, Timothy John O'Dea, President, operated a licensed restaurant-catering business located at 7984 North Tamiami Trail, Sarasota, Florida 34243. At all times material to this proceeding, Respondent applied for and was holding Beverage License Number 51-00228, Series 2APS, package sales only of beer and wine (and other alcoholic beverages under 6 percent alcohol by volume) and 51-02385 tobacco. On or about September 1, 1999, Timothy John O'Dea, on behalf of Respondent, completed a License/Permit application, Form ABT 4000-001L. On page four of the application, under oath or affirmation, Mr. O'Dea answered "NO" to the question have you had any criminal charges filed against you within the past 15 years. Special Agent Suzanne Castro, testimony proved that the criminal charges portion of the Alcoholic Beverage License Application, that asks whether Respondent has any criminal charges filed against him, is used in determining applicant's initial eligibility for the requested license. According to Special Agent Castro, reliance upon the sworn information provided by Respondent was the basis upon which the Agency issued to Timothy John O'Dea the herein- referred to license. In completing the approval process, DABT's routine and subsequent investigation revealed that Timothy John O'Dea had been arrested and charged with thief of services by the Passaic, New Jersey, Police Department on January 18, 1995. The Bergen, New Jersey, Police Department, on August 3, 1995, arrested Respondent a second time on the charge of thief of services. The dispositions of the arrests are unknown. Presently, there are two outstanding New Jersey arrest warrants for Timothy John O'Dea. Timothy John O'Dea, willingly and knowingly, falsely swore, under oath or affirmation, of having no criminal charges filed against him within the 15 years prior to September 1, 1999.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, and review of the penalty guidelines in Rule 61A.2-022, Florida Administrative Code, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order revoking license numbered 51-00228, Series 2APS, issued to Timothy John O'Dea. DONE AND ENTERED this 24th day of July 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2001. COPIES FURNISHED: Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1007 Lt. David Merrill Department of Business and Professional Regulation 1748 Independence Boulevard Building E, Suite 4 Sarasota, Florida 34234 Timothy John O'Dea Cracker Barrell 7984 North Tamiami Trail Sarasota, Florida 34243 Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
