Findings Of Fact Respondent is Alice Waldo, holder of Alcoholic Beverage License No. 45- 00293, Series 2-COP, for a licensed premises known as the SILVER DOLLAR CAFE located in Lake County, Florida. On or about February 4, 1989, an investigator employed by Petitioner entered the licensed premises of Respondent. While in Respondent's facility, the investigator observed several patrons smoking a substance, which by its smell and usage, he believed to be marijuana. The investigator then met with a patron, ordered a small quantity of crack cocaine and handed the patron some money for the forthcoming purchase. The patron then asked Respondent to hold the money while he left the premises to retrieve the controlled substance from his automobile. Shortly thereafter, the patron returned with the cocaine. The investigator showed the substance to Respondent's daughter, who had taken her mother's place at the bar. The purpose of displaying the drug to the proprietor, or the proprietor's daughter in this instance, was to later illustrate that Respondent condoned the use and sale of the drug in connection with her licensed premises. A field test by the investigator and a later laboratory test confirmed the identity of the substance purchased as crack cocaine. Petitioner's investigator again entered Respondent's facility on or about February 10, 1989. On this occasion, the investigator purchased a quantity of marijuana from a female patron, then took the substance over to the bar where he proceeded to roll a marijuana cigarette in the presence of Petitioner. At no time did Petitioner inform the investigator that controlled substances were not allowed on the licensed premises. Upon later laboratory analysis, the substance was confirmed to be marijuana. Upon leaving Respondent's facility on February 10, 1989, Petitioner's investigator met an individual within 10 feet of the front door of the premises who sold him a quantity of a substance later determined by laboratory analysis to be crack cocaine. On or about February 24, 1989, Petitioner's investigator entered Respondent's facility. On the front porch of Respondent's facility, the investigator purchased a quantity of a substance later determined by the investigator's field test and a subsequent laboratory analysis to be crack cocaine. After completing the purchase of the substance, the investigator went inside the facility, placed the material on the counter and recounted to Respondent that it had just been purchased on the front porch. Respondent made no reply to the investigator's announcement and, instead, complied with his request for change for a $20 bill. Upon receipt of the change, the investigator wrapped the crack cocaine in a $1 bill in Respondent's presence. On February 28, 1989, Petitioner's investigator again entered Respondent's facility. He approached a black female named "Lilly" and gave her $20 for the purchase of crack cocaine. However, after the lady accepted the $20 and left to retrieve the cocaine, she did not return. The investigator complained to Respondent that "Lilly" had failed to deliver the drug to him. The investigator also told Respondent that the lady could keep the $20 if Respondent would get him some of the drug. At that time, Respondent referred the investigator to a group of three male patrons on the front porch of the facility who appeared to be smoking marijuana. At no time during this incident did Respondent take any steps to prevent the use of any controlled substances on the licensed premises. Subsequently, Petitioner's investigator returned to Respondent's facility on or about March 4, 1989. He purchased a beer and went outside to the front porch of the facility. He observed a number of furtive transactions where currency was passed between certain individuals. He noticed Respondent go to one of the automobiles in the facility parking lot, get into the automobile, engage in conversation with the occupants and shortly thereafter emerge from the automobile. Respondent went back into the facility. The investigator approached a black male and gave him $20 for some crack cocaine. The black male took the investigator's money, then went directly to the automobile where Respondent had been previously. He returned shortly thereafter to the investigator with two pieces of a substance which later tested positive, via field test and laboratory analysis, as cocaine. During another visit to Respondent's facility on or about March 9, 1989, Petitioner's investigator observed a patron rolling what appeared to be marijuana cigarettes in Respondent's presence. While Respondent took no action to prohibit the use or possession of the apparently controlled substance, she did get her coat and leave shortly after the investigator's arrival. On or about March 11, 1989, Petitioner's investigator reentered Respondent's facility. The investigator purchased a small quantity of crack cocaine from a black male on the front porch of the facility. The investigator then took the controlled substance inside the building and displayed it to Respondent, telling her that he had just obtained the drug on the porch. Respondent asked the investigator if he was going to smoke the drug, and he replied yes. Later, a field test and laboratory analysis confirmed the drug to be cocaine. On or about March 17, 1989, Petitioner's investigator visited Respondent's facility. This time the investigator purchased a small quantity of a drug on the front porch of the building which, upon subsequent field test and laboratory analysis, was confirmed to be cocaine. After completing the purchase, the investigator took the substance inside and showed it to Respondent. Later in the evening, the investigator engaged Respondent in conversation on the front porch and related to her that he had observed numerous drug transactions taking place in her facility. Respondent smiled in acknowledgment of the investigator's statement and replied that she certainly hoped he was not a policeman. He told her that he was not a policeman. Respondent took no action to prohibit further use or transactions relating to drugs on the premises.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered revoking Respondent's beverage license bearing number 45-00293, Series 2- COP. DONE AND ENTERED this 13th day of June, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1989 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. 1.-10. Addressed. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: EDWIN R. IVY, ESQUIRE BOX 3223 ORLANDO, FLORIDA 32810 THOMAS A. KLEIN, ESQUIRE DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007 STEPHEN R. MACNAMARA, SECRETARY DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007 LEONARD IVEY, DIRECTOR DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007
The Issue Whether Petitioner, Emad F. Abdelmeseh, d/b/a Emad's Texaco is entitled to recover attorney's fees and costs in defending the charges made against him in the case of Department of Business Regulation, Division of Alcoholic Beverages and Tobacco vs. Emad F. Abdelmeseh, d/b/a Emad's Texaco, Division of Administrative Hearings, Case No. 91-1618, under the provisions of Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code (formerly 22I-6.035, Florida Administrative Code) and, if so, the amount which Petitioner is entitled to recover.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Petitioner was licensed by the Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, to sell alcoholic beverages from the premises of Emad's Texaco, having been issued license number 63-2090, 2APS. The Petitioner timely filed the petition in the instant case in accordance with Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code (now Rule 60Q-2.035, Florida Administrative Code). The Respondent timely filed a written response alleging that Respondent was substantially justified in issuing the Notice To Show. With its response the Respondent filed an Affidavit challenging the amount of attorney's fees and cost requested by the Petitioner. However, this Affidavit was subsequently withdrawn and the Respondent made no further effort to contest the attorney's fees and costs incurred by the Petitioner. Emad Abdelmeseh is domiciled in the state of Florida and is the sole proprietor of an unincorporated business known as Emad's Texaco, located at 101 East Memorial Boulevard, Lakeland, Florida. Emad's Texaco employs less than 25 employees, and the Petitioner's net worth is less than Two Million Dollars ($2,000,000.00). Petitioner is a "small business party" as that term is defined under Section 57.111(3)(d), Florida Statutes. On July 11, 1990, agents for the Division of Alcoholic Beverages and Tobacco (Division), John Blair and Brad Nelson, participated in a joint investigation with the City of Lakeland Police Department (CLPD) in the illegal selling of alcoholic beverages to minors. Throughout the course of this investigation the Division's agents were on official duty. Agents Blair and Nelson met with the CLPD detectives and Smalley prior to the investigation and remained with the investigation until its conclusion, including the investigation of Emad's Texaco. The Division, through its agents Blair and Nelson, fully participated in the investigation conducted on July 11, 1990, including Emad's Texaco, and did not simply rely on the CLPD's independent investigation to institute action against Emad's Texaco. This case was not what the Division considers an "adopted case" - one handled entirely by another law enforcement agency which request the Division to prosecute. Therefore, the investigation, as far as agents Blair and Nelson were concerned, should have been conducted in accordance with the Division's Policy and Procedure. The investigation of July 11, 1990, involved the use of an underage operative by the name of J. Karen Smalley n/k/a J. Karen Raschke (Smalley) with previous experience working with the Division, and documented as an underage operative by the Division. Prior to July 11, 1990, Smalley had also been used as an underage operative by the CLPD. During the July 11, 1990 investigation, Smalley was being paid by, and was under the direction of, the CLPD. Before leaving the Police Department to assist in the investigation on July 11, 1990, Smalley was instructed by both Detective Phillips and Agent Blair, on separate occasions, concerning her duties and responsibilities in regard to the investigation. During the course of the investigation on July 11, 1990, Smalley was sent on to the premises of Emad's Texaco for purposes of attempting to purchase an alcoholic beverage. Smalley went to the cooler area in Emad's Texaco's licensed premises and took a six-pack of beer to the check-out counter. Amad Abdelmeseh asked to see Smalley's identification. Smalley either handed her driver's license to Amad Abdelmeseh or laid her driver's license on the check-out counter. Emad Abdelmeseh looked at Smalley's driver's licenses which showed her date of birth to be July 24, 1970, just a few days short of being 20 years of age. Although the photograph of Smalley on the driver's license was taken in 1986, she still maintained her youthful appearance on July 11, 1990. On July 11, 1990, Smalley's hair was blonde, having dyed her hair which was brown when the driver's license was issued. However, Smalley did not dress-up or wear make-up on July 11, 1990, so as to appear older than her age of almost 20 years. There was insufficient evidence to establish facts to show that at the time Smalley was attempting to purchase the six-pack of beer on July 11, 1990, that she: (a) told Emad Abdelmeseh that she was 21 years of age or older or; (b) produced a driver's license, other than the driver's license referred to above, that listed a date of birth which would have indicated an age of 21 years or older or; (c) in any fashion attempted to misrepresent her age as being 21 years or older After looking at Smalley's driver's license, Emad Abdelmeseh sold Smalley the six-pack of beer. After making the purchase of beer, Smalley exited Emad's Texaco and advised Detective Phillips that she had made a purchase of beer from the person inside the store. Detective Phillips advised Detective Tim Snyder of the purchase. Detective Snyder then went inside Emad's Texaco and identified Emad Abdelmeseh as the person who had sold the beer to Smalley. On August 8, 1990, Agent Blair served a Notice of Intent To File Administrative Charges against Emad Abdelmeseh's alcoholic beverage license as a result of his sale of alcoholic beverage to Smalley. On August 8, 1990, Abdelmeseh complained to Agent Blair about the lapse of time between Smalley making the purchase of beer on July 11, 1990 and the serving of the Notice of Intent on August 8, 1990. Emad Abdelmeseh did not complain to Agent Blair on August 8, 1990 that Smalley had misrepresented her age to him when she made the purchase of beer on July 11, 1990. In fact, Emad Abdelmeseh did not advise Agent Blair, or anyone else with the Division, of his allegation that Smalley had misrepresented her age to him on July 11, 1990, when she purchased the beer from him until after the Notice To Show Cause was issued by Lt. Robert Bishop. After the Notice of Intent was served on Emad Abdelmeseh, Agent Blair prepared a draft Notice To Show Cause and a synopsis for review by Lt. Robert Bishop, District Four Supervisor. Lt. Bishop has been a supervisor with the Division for 23 1/2 years. On August 16, 1990, Lt. Robert Bishop, acting with authority from the Division Director, issued a Notice To Show Cause which was served against the Petitioner's alcoholic beverage license on August 17, 1990 alleging that Petitioner had sold alcoholic beverages from the premises of Emad's Texaco to a person under the age of 21 years contrary to Section 562.11(1)(a), Florida Statutes. The issuance of the Notice To Show Cause was the initiation of the case against the Petitioner and the Division was not a nominal party in this case. In issuing the Notice To Show Cause, Lt. Bishop relied solely on the information in the Notice To Show Cause and the synopsis prepared by Agent Blair without any further investigation or discussion with Agent Blair. The Division had used Smalley as an underage operative on several occasions prior to the investigation on July 11, 1990, and had found her to be a credible and reliable underage operative. Therefore, the Division reasonably relied on Smalley in the issuance to the Notice To Show Cause to Emad Abdelmeseh, notwithstanding that on July 11, 1990, Smalley was being paid by, and was under the direction of, the CLPD. Agent Blair has been an agent with the Division for 16 years and his reports, according to Lt. Bishop, are impeccable. Therefore, Lt. Bishop had no problem in issuing the Notice To Show Cause to Emad Abdelmeseh based solely on Agents Blair's report, notwithstanding that Agent Blair's report did not specifically indicate that he had strictly adhered to the Division's Policy and Procedure. Although the record reflects that Agent Blair did not strictly adhere to the Division's Policy and Procedure on July 11, 1990, there is competent substantial evidence to establish facts to show that the CLPD detectives basically filled in the gaps, so the speak. It is clear from the testimony of Lt. Bishop that even if had he made further inquiry of Agent Blair concerning Agent's Blair's adherence to policy and procedure, it would not have changed Lt. Bishop's mind about issuing the Notice To Show Cause because there was a reasonable basis in law and fact to issue the Notice To Show Cause - there was credible evidence that Emad Abdelmeseh had sold an alcoholic beverage to an underage operative in violation of the Florida Statutes. Along with the Notice To Show Cause served on Emad Abdelmeseh there was a Notice Of Informal Conference which provided for an Informal Conference between the Division and Emad Abdelmeseh on August 28, 1990 at 3:00 p.m. It was at this informal conference on August 28, 1990, that Emad Abdelmeseh first advised anyone from the Division of his allegation that Smalley had misrepresented her age to him on July 11, 1990. The Informal Conference did not resolve the issues and a Request For Formal Hearing signed by Emad Abdelmeseh and dated September 4, 1990 was filed with the Division. In the Request For Hearing Emad Abdelmeseh sets out what he considers to be the disputed issues of fact. In this request there is an allegation that the underage operative was misleading in that when asked if she was 21 years of age she continued to purchase the beer as if she was an adult. There was no mention of Smalley presenting her driver's license By letter dated February 12, 1991, Emad Abdelmeseh again sets out what he considers to be the facts. Among other things, he alleges that Smalley claimed that she was over the age of 21 years and that she did present her driver's license for identification. On March 11, 1991, the matter was referred to the Division of Administrative Hearings for conduct of a formal hearing. The Division prosecuted this action in the case of the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco vs. Emad Abdelmeseh, d/b/a Emad's Texaco, Division of Administrative Hearings Case No. 91-1618. On October 30, 1991 the Division exercised its administrative discretion and entered an Order of Dismissal dismissing the charges against Emad Abdelmeseh set forth in the Notice To Show Cause issued on August 16, 1990. The reasons behind the Division's dismissal of the case were not presented at the hearing on April 29. 1992 or November 17, 1992. The Petitioner is the prevailing small business party as that term is defined in Section 57.111(3)(c), Florida Statutes. The hourly rate and the total number of hours expended by Petitioner's attorney, and others under his control, and the costs incurred in the defense of the Petitioner as set out in Amended Affidavit and attached as Exhibit B to the Petitioner's Amended Petition in the amount of $11,429.77 are reasonable, and should be the amount awarded in the event Petitioner is successful in presenting his Amended Petition. There is competent, substantial evidence to establish facts to show that at the time the Notice To Show Cause was issued on August 16, 1990 the Division had made a meaningful inquiry into the matter and there was a reasonable basis in fact and law to initiate the action. No special circumstances exist which would make the award unjust.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to these proceedings, Respondent, doing business as The Knight Out, was the holder of alcoholic beverage license number 72-79, series 1-COP. Prior to the hearing . . . in this cause, Respondent had turned in his license to the Petitioner. To the rear of the licensed premises, Respondent operated a bottle club known as The Knight Club. The Knight Club is attached to and shares restroom facilities with The Knight Out. On March 27, 1975, Respondent was served with a "Notice to show cause why beverage license should not have civil penalty assessed against it or be suspended or revoked" on the grounds that on Sunday, January 26, 1975: his employee, Vicki Lynn Williamson, at approximately 2:00 am., did sell at the licensed premises, an alcoholic beverage, a can of Budweiser beer, to beverage officer L. E. Williams during the time that the sale and consumption of alcoholic beverages is prohibited, in violation of City of Perry Ordinance 394 enacted pursuant to F.S. s. 562.14; at approximately 4:00 a.m., he sold at the licensed premises an alcoholic beverage, one can of Budweiser beer, to beverage officer Williams in violation of City of Perry Ordinance 394; at approximately 5:00 a.m., he sold at the licensed premises an alcoholic beverage, one can of Budweiser beer, to beverage officer Williams in violation of City of Perry Ordinance 394; at approximately 6:05 a.m., he refused to admit to the licensed premises beverage officer Jack Garrett, while in the performance of his official duties, contrary to F.S. s. 562.41; and at approximately 6:05 a.m., he had in his possession, custody and control, at the licensed premises a partially full 4/5 quart of Smirnoff Vodka, an alcoholic beverage not authorized to be sold by him, in violation of F.S. s. 562.02. Beverage officer L. E. Williams went to The Knight Out the weekend of January 24, 1975, in order to conduct an undercover investigation of the licensed premises. He observed the Respondent, between 11:30 p.m. and 12:00 a.m. on January 24th, remove four cases of beer from The Knight Out and place them into a small room in The Knight Club portion of the premises. At about 1:00 a.m. on January 25th, Williams paid a $2.00 cover charge, entered The Knight Club and remained there until 6:00 a.m. On Saturday night, January 25th, beverage officer Williams again went to The Knight Out and, at about 11:30 p.m., again observed Respondent moving five cases of beer from The Knight Out to the rear portion, The Knight Club. Williams entered The Knight Club during the early hours of January 26, 1975, carrying a can of beer with him. He left at approximately 2:30 a.m., met with other beverage agents, and returned to The Knight Club at about 3:45 a.m., paying the cover charge of $2.00. At 4:00 a.m. and again at 5:00 a.m. on January 26, 1975, Williams purchased from Respondent Poppell cans of Budweiser beer at seventy-five cents per can. Williams retained control of the two beer cans and at about 6:30 a.m. he tagged them as evidence. They were admitted into evidence at the hearing as Exhibits 4 and 5. At approximately 6:05 a.m. on January 26, 1975, beverage officer Jack Garrett, along with several other law enforcement agents, knocked on the front door of The Knight Club seeking entrance thereto. Respondent told Garrett to get in front of the peephole on the door so that he could see who was there. Garrett, who had known Respondent for some fifteen years, testified that he showed his identification card to Respondent through the peephole, whereupon Respondent replied that he would not let him in. Beverage officer T. A. Hicks, present with Garrett at the time, confirmed these events. Respondent and two other witnesses present at the scene testified that Respondent asked the persons at the front door to identify themselves, but that no response was received. Shortly thereafter, Officer Garrett, along with other law enforcement officers, went around to the other side of The Knight Club and entered, without knocking, the ladies rest room which led to the inside of The Knight Club. Once inside, they met Respondent leaving a small room with a handful of liquor bottles. One such bottle was seized - - a partially filled bottle of Smirnoff Vodka - - and was received into evidence at the hearing as Exhibit 6. Shirrell Woodalf testified that she had come to The Knight Out on the morning in question with another couple. When the other couple left, they gave her their bottle of Smirnoff Vodka. She then gave the bottle to Respondent to keep for her in his office. Woodalf identified Exhibit 6 as being the same bottle as that left with her and given to Respondent. Four witnesses who often frequented The Knight Club testified that patrons of the Club always brought their own beer or other alcoholic beverages into the Club. Respondent would cool their beer for them and keep their bottles in his office if they so desired. Respondent sometimes charged a small fee for cooling the beer and he sold setups for mixed drinks. These four witnesses never saw Respondent sell either beer or other alcoholic beverages in The Knight Club.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that: Paragraphs 1 and 5 of the notice to show cause be dismissed; Respondent be found guilty of violating F.S. ss. 562.14 and 562.41, as set forth in paragraphs 2, 3 and 4 of the notice to show cause; and Respondent's alcoholic beverage license be revoked. Respectfully submitted and entered 26th day of May, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Charles Nuzum Director Division of Beverage 725 South Bronough Street Tallahassee, Florida Charles Tunnicliff, Esquire Department of Business Regulation 725 South Bronough Street, Room 210 Johns Building Tallahassee, Florida 32304 Conrad C. Bishop, Jr., Esquire Weed & Bishop P.O. Box 1090 Perry, Florida 32347
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license no. 16-637 S, Series 4-COP, be revoked for multiple violations of the Beverage Law. DONE and ENTERED this 5th day of August, 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 5th day of August, 1983.
The Issue This case concerns the issue of whether the Respondent's beverage license should be suspended, revoked, or otherwise disciplined for maintaining a licensed premises where illegal drugs are sold and solicitations for prostitution take place. At the formal hearing, the Petitioner called as witnesses Carol Houston, Michael Collins, Chester L. Copeland, Vincent Rodriguez and John T. Allen. Petitioner offered and had admitted into evidence six exhibits. Respondent offered and had admitted into evidence one exhibit. Mr. Samuel Williams testified on behalf of Respondent.
Findings Of Fact The Respondent holds and at all times material to this action held beverage license No. 39-684, Series 4-COP. The licensed premises under that license is located at 2801 Nebraska Avenue, Tampa, Florida. Mr. Samuel Williams is president of the Respondent, Skylight Corporation, and owns 60 percent of the stock of that corporation. On the evening of July 27, 1983, Beverage Officer Carol Houston went to the licensed premises, The Blue Room Lounge, to conduct an undercover investigation. Upon entering the lounge Officer Houston took a seat at the bar and ordered a drink. After the shift change, Officer Houston talked to Brenda Brock, the bartender on duty. Officer Houston told Ms. Brock she liked to get high and asked if there was anyone in the bar from whom she could buy "reefer". Reefer is a street or slang term for marijuana or cannabis. Brenda Brock told Officer Houston that the person who usually sells reefer wasn't in the lounge at that time. Ms. Brock also related that she was high herself and had smoked a joint before coming on duty. When Officer Houston had entered the bar, Officer Michael Collins of the Tampa Police Department was already present in the lounge. Officer Collins, also working undercover, asked Brenda Brock where he would purchase some marijuana. When he asked Ms. Brock this question, she pointed out a black male named Chunky and said that he sold marijuana. Officer Collins then asked Brenda Brock to get Chunky for him and she did. The young male named Chunky approached Officer Collins and said he didn't have any marijuana but would have some later. At some time later in the evening, a young black male named Ace entered the lounge and Brenda Brock pointed to him and said to Officer Collins "that's him." Ace walked over to Officer Collins and asked if he was the guy looking for some marijuana. Officer Collins told him that he was but that he had promised to buy from someone else. Ace then asked Brenda Brock to verify to Officer Collins that he had been sent by Chunky and Brenda Brock said that he had in fact been sent by Chunky. As Ace had walked up to Officer Collins, he had three plastic bags of marijuana (cannabis) in his hands. He sold one of these bags to Officer Collins. Ace then sold a second bag of marijuana to a woman named Celeste who was sitting next to Officer Collins. Celeste was the bartender who had been relieved by Brenda Brock. Celeste purchased a $5 bag of marijuana from Ace and the exchange took place in the open and was observed by Officer Collins. After making the sales to Officer Collins and to Celeste, Ace approached Beverage Officer Houston who was still seated at the bar in a different area than Officer Collins and Celeste. He asked Officer Houston if she wanted to purchase some marijuana. She said yes and further stated that she wanted a $5 bag. He handed her a plastic bag containing marijuana and Officer Houston laid it on the bar in the open. Brenda Brock walked over and told her to put the bag up. Officer Houston then placed the bag of marijuana in her purse. Officer Houston then asked Brenda Brock if she had any papers she could use to roll a "joint". A joint is a slang term or street term referring to a marijuana cigarette. Brenda Brock said she did not have any papers. The purchase by Officer Houston of the marijuana took place in the open and was observed by Officer Collins from a different area of the bar. Later in the evening of July 27, 1983 two white females came into the lounge. Brenda Brock pointed to them and said those two ugly bitches called themselves prostitutes. At the time that the purchases of marijuana were made by Officer Collins, Celeste and Officer Houston, Brenda Brock was on duty as bartender and made no effort to stop the transactions. Mr. Samuel Williams had been in the lounge earlier in the evening, but was not present in the lounge when the marijuana transactions took place. On July 28, 1983, Officer Houston returned to the licensed premises approximately 7:00 p.m. When she arrived Samuel Williams was present in the lounge. Mr. Williams was talking with two men seated at the bar and was overheard by Officer Houston to say that before he would have those two prostitutes on the phone all night, he would have it taken out. Brenda Brock was the bartender on duty that evening and Officer Houston asked her if Ace was around. Ms. Brock replied that no one was around who had any reefer. Officer Houston left the lounge approximately 8:30 p.m. and returned at approximately 11:30 p.m. Upon entering, she ordered a drink from Brenda Brock and asked Ms. Brock if Ace had been back in because she wanted to get some reefer now. Ms. Brock replied that he was in the lounge and that she would get him for her. Shortly thereafter, Ace came over and asked Officer Houston what she wanted. She told him she wanted some reefer. Ace then walked away and shortly returned with a plastic bag containing marijuana. Officer Houston handed Ace a $20 bill and because Ace indicated he had no change, Officer Houston handed the $20 bill to Brenda Brock who gave her two $5 bills and one $10 bill as change. Officer Houston then handed a $5 bill to Ace as payment for the bag of marijuana. Also on the evening of July 28, 1983, while Officer Houston was seated at the bar, Brenda Brock told her a gentleman wanted to speak to her. The gentleman was Officer Collins, also working undercover. Officer Houston walked over and spoke to him briefly and the two of them returned to where Officer Houston had been seated in front of the cash register. There they discussed the price of a "date". A date is a common palance or street term for a sexual encounter for money or prostitution. A "date" is also referred to as a "trick". After agreeing upon a price, Officer Houston handed her purse and drink to Brenda Brock and asked Ms. Brock to hold them while she went outside to do a trick. Brenda accepted the purse and drink and Officer Houston left the bar with Officer Collins. Approximately 20 minutes later, Officer Houston returned and Brenda Brock gave her back her purse and her drink. At no time did Brenda Brock object to or inquire about Officer Houston's activities. On July 30, 1983, Beverage Officer Houston returned to The Blue Room Lounge at approximately 5:30 p.m. She entered the lounge and took a seat at the bar and ordered a drink from Brenda Brock who was on duty as bartender. While she was seated at the bar a young black female came up and asked her if she wanted to buy some reefer. Officer Houston had seen this young woman in the bar previously. She told her she did not want to buy any marijuana and after the young woman left she asked Brenda Brock who the young woman was. Brenda Brock said she was Ace's sister and in response to Officer Houston's questions, indicated that it was alright to buy reefer from her. Later that evening Ace came in and asked Officer Houston if she wanted to buy some marijuana. She told him that she had met his sister and Ace then called the young black female over and introduced her to Officer Houston as his sister. Officer Houston told Ace that she wanted to buy a $5 bag of marijuana. Ace then went over to his sister and brought back a clear plastic bag of marijuana. Officer Houston handed him a $20 bill and he indicated he did not have change. She then obtained change for the $20 bill from Brenda Brock and handed $5 of the change to Ace. Brenda Brock was standing right in front of her at the bar when she handed Ace the $5. In the early morning hours of July 30, 1983, just after midnight, Beverage Officer Hamilton entered the The Blue Room Lounge. He came over and talked with Officer Houston about a "date". While they haggled over a price Brenda Brock was seated directly across the bar from Beverage Officer Houston. After agreeing upon a price for the date, Officer Houston handed her purse to Brenda Brock and asked her to hold it while she did this trick. Brenda Brock took the purse and agreed to hold it. Beverage Officer Houston then left the lounge with Officer Hamilton. A few minutes later Beverage Officer Houston returned to the bar and Brenda Brock gave her her purse and put the drink which she had been drinking back on the bar. On August 1, 1983, Officer Houston returned to the licensed premises at approximately 9:30 p.m. She took the same seat near the cash register where she had sat on the previous evenings. Ace was present in the lounge. Officer Houston asked Brenda Brock to ask Ace to bring her a dime bag of marijuana. (A dime bag is a $10 bag. Brenda Brock went over to Ace and Ace then approached Officer Houston and asked her how much she wanted. At that time Officer Houston asked him if he could sell her some cocaine. He said he didn't have any but would have some later. Officer Houston then purchased two bags of marijuana from Ace for which she paid him $10. She handed him a $20 bill and he gave her $10 in change and when this exchange took place, Brenda Brock was in the area nearby on the other side of the bar. Officer Collins also went to the licensed premises on August 1, 1983 at approximately 10:55 p.m. After entering the lounge he told the barmaid, Brenda Brock, that he wanted to buy some good marijuana. She signaled to Ace and Ace came over to her. She whispered to Ace. Ace had walked up with a bag of marijuana already in his hand and after speaking with Brenda Brock he walked over and sold the bag of marijuana to Officer Collins for $5. Brenda Brock never objected to discussions regarding drugs or refused to get involved. There were no signs in the bar saying "No Drugs, No Loitering, No Prostitution", or signs with rules of management. On the evening of August 1, 1983, Officer Chester L. Copeland of the Tampa Police Department was also in the licensed premises in an undercover capacity. While standing at the bar Officer Copeland talked with Brenda Brock and asked her if Carol Houston was "dating". Brenda Brock said she didn't know. Ms. Brock then walked over and whispered something to Carol Houston and then returned to where Officer Copeland was standing and informed him that Carol was "dating". Officer Copeland then went over to Officer Houston and conversed with her about the price of a date. Brenda Brock was standing nearby during this conversation and made no objection to the discussion. After agreeing on a price Officer Houston handed her purse to Brenda Brock and left the lounge with Officer Copeland. Officer Collins also present in the lounge, observed Officer Houston and Officer Copeland leave the lounge together. Prior to this occasion Officer Collins had asked Brenda Brock if Officer Houston dated. Ms. Brock had indicated she didn't know and he had told her to go ask. She did go ask Officer Houston and came back and informed Officer Collins that she did date. Officer Collins then asked Ms. Brock the price of a date and she said she didn't know. Officer Collins asked her to go ask. Ms. Brock walked over and spoke with Officer Houston and came back and said the price was $50. On this particular evening of August 1, 1983, after he observed Officer Houston and Officer Copeland leave the bar, Officer Collins asked Brenda Brock if Officer Houston was coming back. Ms. Brock said she didn't know. Officer Collins then asked her if Carol (Officer Houston) was out on a date and Brenda Brock replied that she thought so. On each of the occasions that Officer Collins discussed prostitution with Brenda Brock he instituted the conversation, but Ms. Brock freely discussed it and made no objection to the discussions. Shortly after she had left with Officer Copeland, Carol Houston returned to the licensed premises. Officer Collins then approached her and talked about a "date". After a short discussion he and Officer Houston left the bar together. On August 3, 1983, Officer Houston again returned to the licensed premises at approximately 10:30 p.m. She took a seat at the bar directly in front of where Brenda Brock was working as bartender. Seated near her at the bar was a latin male who kept asking her to come over. After she had been there a short time, Brenda Brock came over to Officer Houston and said that the latin male wanted to know how much she charged for a date. Officer Houston did not respond and Brenda Brock shouted to the latin male $100. A short time later Brenda Brock came back over to Officer Houston and said that the latin male said he had some cocaine. Officer Houston then told the latin male in a loud voice that he better also have lots of money. That same evening Brenda Brock also told Officer Houston that another male, Officer Collins, wanted a date and had some cocaine. On the evening of August 3, 1983, Officer Copeland also entered the licensed premises. While seated at the bar, Officer Copeland met the young man named Ace. Ace came over and asked if he wanted to buy a $5 bag of reefer. He indicated that he did and gave Ace $5, and Ace handed him a plastic baggie of marijuana. On August 9, 1983, Officer Houston entered the licensed premises approximately 10:30 p.m. She took a seat at the bar, ordered a drink, and asked Brenda Brock, the bartender on duty, if Ace was around. Brenda Brock indicated that he was over at the Pac-Man machine but he had left the lounge. Later Ace came in and Brenda Brock said "there he is" to Officer Houston. Ace came over to Officer Houston and said he had some cocaine and asked if she still wanted to buy some. She asked now how much it would cost. Ace indicated he had "nickel" ($5) pieces. Ace stated that it was back at his room and he left and then returned with a small foil pack. Officer Houston gave Ace $5 and he handed her the small foil pack. The small foil pack contained cocaine, a controlled substance under Section 893.03, Florida Statutes. That same evening Officer Houston observed two black males rolling some type of cigarette. She observed a plastic bag containing material similar to marijuana. She observed Brenda Brock obtain some rolling papers from behind the bar and hand them to the two males. On August 10, 1983, Officer Houston entered the licensed premises approximately 10:00 p.m. Ace was not in the lounge when she arrived, but approximately 10:15 p.m. Ace entered the lounge and came over and asked if she wanted to buy some "coke". "Coke" is a slang or street term for cocaine. She said she would like to buy some and he said he would have it later. At approximately 11:30 p.m., Ace came over to Officer Houston and stated that he had coke. Officer Houston told him that she wanted two hits and she then bought two foil packs from Ace. Officer Houston gave Ace a $20 bill but he had no change. She then handed the $20 bill to Brenda Brock who gave her change. She paid $10 for the two foil packs which contained cocaine. That same evening a black male was seated at the bar smoking a marijuana cigarette. Brenda Brock who was the bartender on duty stated "Do I smell dope?" She then looked at the male smoking the marijuana cigarette, but made no effort to stop him. On August 11, 1983, Officer Houston was again on the licensed premises. While seated at the bar, Officer Houston observed a white female smoking what appeared to be a marijuana cigarette Brenda Brock came over to Officer Houston and said that the white female had just gotten some reefer and wanted to know if she wanted some. Officer Houston told her that she did not. Mr. Samuel Williams the president of the Respondent corporation was the manager and owner of the licensed premises. During the time of the charges in this case, Mr. Williams would open the bar in the mornings and remain at the bar all day until the shift change at approximately 7:00 or 7:30 p.m. He was not present in the bar when the various transactions took place and was generally not present in the bar in the evening. A Mr. Raifield had been hired by him to manage the bar at night. However, Mr. Raifield had been terminated shortly before the transactions which are the subject of this case. Brenda Brock had become a full-time bartender on July 26, 1983. Prior to that time she had worked part-time and Mr. Williams had no indication that she used drugs or allowed other people to use drugs or solicit for prostitution on the licensed premises. At no time was Mr. Williams aware that Brenda Brock was permitting drug transactions and solicitations for prostitution to take place in the licensed premises. There is a substantial prostitution problem in the Nebraska Avenue area where the licensed premises is located. Mr. Williams has been active in civic attempts to eliminate the prostitution from this area. Within a year of the charges which are the subject of this case, Mr. Williams' life was threatened by a pimp operating along Nebraska Avenue and the tires and convertible top of his car were slashed. One of the reasons that Mr. Williams was not in the lounge in the evening was because he had been advised by the police that it would be safer for him to not be in the lounge in the evenings. This occurred following the threat on his life. Mr. Williams had no policy of random visits or inspections to the lounge in the evenings. There have been no prior complaints or charges brought against the Respondent's license.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered finding the Respondent in violation of Section 561.29, Florida Statutes, and imposing a civil penalty of 1,000 and suspending Respondent's beverage license for a period of sixty (60) days. DONE and RECOMMENDED this 1st day of September, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Samuel Williams 3513 Rivergrove Drive Tampa, Florida Mr. Howard M. Rasmussen Director of the Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue This case was presented through a Notice to Show Cause/Administrative Complaint filed by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, against the Respondent, Norma D. Kettering, t/a Fancy Dancer, in which the requested relief is for the imposition of civil penalty, suspension or revocation of the beverage license allegedly held by Norma D. Kettering. The Notice to Show Cause/Administrative Complaint contains the following accusations: "1. On or about the 27th of March, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit "JOHN DOE" on your licensed premises, a public place, did unlawfully sell or deliver, or possess with intent to sell, or deliver, a controlled substance to wit; METHAQUALONE to one Robert R. Jones, Beverage Officer, for the sum of $3.50 each, U.S. Currency, contrary to F.S. 561.29 to wit F.S. 893.13. On or about the 27th of March, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; DEBORAH MARIE ALTIZER, a/k/a "GINGER", dancer, on your licensed premises, a public place, did unlawfully sell or deliver or possess with intent to sell or deliver a controlled substance to wit; METHAQUALONE, to one ROBERT R. JONES, Beverage Officer, for the sum of $3.50 each, U.S. Currency, contrary to F.S. 561.29 to wit; F.S. 893.13. On or about the 27th of March, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; TAMMIE R. FRANCIS, a/k/a "RINA", dancer, on your licensed premises, a public place, did unlawfully offer to commit an act of prostitution, by giving her body for sexual intercourse to one ROBERT R. JONES, Beverage Officer, for the sum of $50.00 U.S. Currency, contrary to F.S. 561.29 to wit; F.S. 796.07(3) (A). On or about the 9th of April, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit KATHY JEANETTE BROWN, a/k/a "KATHY", dancer, on your licensed premises, a public place, did unlawfully offer to commit an act of prostitution, by giving her body for sexual intercourse to one C. E. LLOYD, Beverage Officer, for the sum of $100.00, U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3) (A). On or about the 9th of April, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; KATHY JEANETTE BROWN, a/k/a "KATHY", dancer, on your licensed premises, a public place, did unlawfully offer to commit an act of prostitution, by giving her body for sexual intercourse to one C. E. LLOYD, Beverage Officer, for the sum of $100.00 U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3) (A). On or about the 12th of April, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; "CINNAMON", dancer, did unlawfully offer to commit an act of prostitution on your licensed premises, a public place, by giving her body for sexual intercourse to one B.A. WATTS, JR., Beverage Officer, for the sum of $20.00 U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3)(A). On or about the 12th of April, 1980, you NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; TAMMIE R. FRANCIS a/k/a "RINA", dancer, did unlawfully offer to commit an act of prostitution on your licensed premises, a public place, by giving her body for sexual intercourse to one M. L. IMPERIAL, Beverage Officer, for the sum of $50.00 U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3) (A). On or about the 13th of April, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; "TAMMY", dancer, did unlawfully offer to commit an act of prostitution on your licensed premises, a public place, by giving her body for sexual intercourse to one B.A. WATTS, JR., Beverage Officer, for the sum of $75.00, U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3)(A). On or about the 13th of April, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; "LICORICE", dancer, did unlawfully offer to commit an act of prostitution on your licensed premises, a public place by giving her body for sexual intercourse to one M. L. IMPERIAL, Beverage Officer, for the sum of $75.00 U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3)(A). On or about the 13th of April, 1980, you NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; DEBORAH MARIE ALTIZER, a/k/a "GINGER", dancer, did unlawfully sell or deliver, or possess with intent to sell or deliver on your licensed premises, a public place, a controlled substance to wit; METHAQUALONE to one ROBERT R. JONES, Beverage Officer, for the sum of $4.00 each, U.S. Currency, contrary to FS. 561.29 to wit F.S. 893.13."
Findings Of Fact The Petitioner has complained against the named Respondent pursuant to those accusations as set forth in the issues statement of this Recommended Order. The Respondent requested a formal hearing to be conducted in accordance with the provisions of Subsection 120.57(1), Florida Statues, and although the Respondent did not attend the hearing, the Respondent having requested the hearing, the Petitioner's case was presented. The Petitioner in this cause, 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 the several beverage license holders in the State of Florida. Norma D. Kettering, who trades under the name of Fancy Dancer, is the holder of License No. 69-293, Series 2-COP, which allows for the consumption of alcoholic beverages on the premises. The license is for a premises at Highways 17 and 92, Fern Park, Florida. The facts reveal that Beverage Officer Robert R. Jones went to the licensed premises on March 27, 1980, to investigate alleged Beverage Law violations. Those violations dealt with offers by the agents, servants or employees of the licensee to commit acts of prostitution. Once inside the premises, Officer Jones was approached by a dancer in the premises whose stage name is "Ginger", who commented to Officer Jones that she was loaded on "Quaaludes". (The word "Quaalude" refers to the substance Methaqualone.) Officer Jones asked "Ginger" if she knew where he could get "Quaaludes". In response to this request, "Ginger" left the officer and went to an unknown white male who was seated in a chair in the establishment. He took two Methaqualones from his person and gave them to "Ginger", who in turn gave them to Officer Jones in return for money. On that same date, March 27, 1980, "Ginger" was seen to dance for the patrons while attired In a "G" string costume. She danced both on the main stage and in the area of the audience and was seen to receive money in exchange for her dancing. She was also referred to by the master of ceremonies as "Ginger". On March 27, 1980, Officer Jones was additionally approached by another dancer known as "Rina" who had been referred to by that name by the master of ceremonies who was announcing appearance of the dancers who were dancing on the main stage in the licensed premises. "Rina" then asked Jones if he wanted a "fuck." She explained to the officer that it would cost him $50.00; and that he would have to get rid of Beverage Officer Blanton, who was with Jones at the time. "Rina" also stated that she would "go more than once if she liked the first time". This conversation took place in the licensed promises. On April 13, 1980, Officer Robert R. Jones returned to the licensed premises and encountered the dancer, "Ginger" and paid her $4.00 each for two Methaqualone which she obtained after going to the dancers' dressing room in the licensed premises and returning to Officer Jones. On that date, "Ginger" was still performing as a dancer in the licensed premises. Beverage Officer C. E. Lloyd went to the licensed premises on April 9, 1980, as part of the investigation. While in the licensed premises, he was approached by a dancer, Kathy Brown, whose stage name is "Kathy", who asked Officer Lloyd if she could dance for him. He agreed to allow her to "lap dance". Beverage Officer Lloyd paid "Kathy" $5.00 for a "lap dance" she performed. This is a form of dance where the female dancer sits on the lap of the male patron and goes through a series of gyrations while a record is played. Officer Lloyd asked Brown what would happen when she "got things started". Brown stated that she could take care of everything for him after she got off from work for a price of $100.00. He asked her what that meant and she replied she could "give you a fuck for $100.00". After this conversation, dancer Brown was called by the master of ceremonies to dance for the benefit of those patrons in the licensed premises and she danced on the stage. She was wearing a bikini-type costume. The conversation between Lloyd and Brown was overheard by Beverage Officer James A. Jones, Jr., who was with Lloyd on the date in question. She told Jones that he could drive Lloyd and her in the car while she serviced Lloyd and then she said she would "fuck" Jones, also for $100.00. Lloyd and Jones left the licensed premises and Brown followed them and upon entering the officers' vehicle, Brown was arrested for offering to commit prostitution. On April 12, 1980, Beverage Officer Bethel Watts, Jr., was dispatched to the licensed premises to continue the investigation. While in the licensed premises on that date, he was approached by a female dancer whom he had seen perform on the stage as a dancer while wearing only a "G" string. This dancer had been referred to as "Cinnamon", with that reference being made by the master of ceremonies in the licensed premises. "Cinnamon" asked the Respondent if he wanted a "lap dance". He replied, "Yes" and the dancer sat on his lap and squirmed around for the duration of one record. The dancer then told Officer Watts that she could "give you anything you want right here." He stated that he could not afford it and she asked if he had $20.00. She further stated that she could, "give him a 'quickie'". The dancer then went back to the stage area. Officer Watts paid the dancer "Cinnamon" $3.00 for the "lap dance". Officer Watts had gone to the licensed premises on April 12, 1980, with another Beverage Officer, Michael Lee Imperial. On that same date, a dancer who had been performing in the licensed premises who was known as "Rina" approached Officer Imperial and asked if he would like her to "lap dance". He agreed and she sat on his lap and performed the "dance" through three different records for a price of $5.00 each, a total price of $15.00. He asked the dancer if she did anything other than dance, to which she asked if he were a policeman, and he answered, "no". "Rina" then patted down the Beverage Officer to check to see if he were carrying any form of police identification. She then stated that she got off at 1:30 a.m. and would come by his room. She asked the Beverage Officer how much he could afford and he said "$50.00" and she indicated that she would give him "anything and everything he wanted" for the $50.00. Officers Watts and Imperial returned to the licensed premises on April 13, 1980. While in the licensed premises, Officer Imperial was approached by a dancer who was known as "Licorice" and she asked if he wanted her to "lap dance". He responded, "Yes" and she "danced" one record for a cost of $5.00. Officer Imperial stated to the dancer that she "sure felt good" and stated that he "bet" she was good in bed. She responded by stating that, "I am" and in turn he stated that he "bet" that, "I'll never find out", to which she responded that he could find out for $75.00. In turn the officer wanted to know what he would get for $75.00 and the dancer said, "You will get whatever you want me to do". Officer Imperial said that he would pick her up at seven o'clock. Nothing further occurred concerning this event. On the same date, April 13, 1980, Officers Watts and Imperial were sitting together and in the course of the conversation which Imperial had with one of the dancers, Imperial turned to Watts and asked Watts if he (Watts) wanted the dancer to get a girl for Watts. After some discussion, the dancer arranged to have another dancer whose stage name was "Tammy" and who had danced in the licensed premises and been referred to by the master of ceremonies by that name was brought and introduced to Officer Watts. (Watts had asked the other dancer to ask "Tammy" if she "would party". The other dancer responded that "Tammy" "would party" but it would cost $75.00.) Watts asked "Tammy" if she "would party" and she responded by saying that for $75.00 she would do anything that he wanted up to two hours, at which point she had an appointment in the licensed premises. The conversation terminated at the point when Watts stated that he would pick up a bottle of whiskey.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Counts One (1), Two (2), Three (3), Five (5) and Ten (10) of the Notice to Show Cause/Administrative Complaint be DISMISSED and that the Respondent not be held for further answer. It is FURTHER RECOMMENDED that the license held by the Respondent, Norma D. Kettering, No. 69-293, Series 2-COP, be REVOKED in view of the violations as established through Counts Four (4), Six (6), Seven (7), Eight (8) and Nine (9) in the Notice to Show Cause/Administrative Complaint. DONE AND ENTERED this 3rd day of October, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Norma D. Kettering, t/a Fancy Dancer 236 Highways 17 & 92 Fern Park, Florida
The Issue Whether Respondent unlawfully obstructed and/or hindered the inspection of his licensed premises by law enforcement officers and allowed or otherwise condoned the sale of alcoholic beverages in violation of a municipal ordinance concerning the hours of sale and, if so, what disciplinary action is warranted.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the state agency charged with regulating the sale of alcoholic beverages and tobacco in Florida. Respondent, El Greco, Inc., d/b/a El Greco is the holder of alcoholic beverage license number 63-00458, series 4-COP. Respondent's premises is located at 1109 East Main Street in Lakeland, Florida. Respondent's president is John Houvardis (herein Respondent). Petitioner issued two official warnings to Respondent on October 19, 1992. One warning was for a violation of Section 562.41, Florida Statutes, to wit, hindering or obstructing a law enforcement officer from conducting a search of the licensed premises which included locking a law enforcement officer from the premises. The other warning was for an alleged violation of the Lakeland City Ordinance relating to the sale, serving, or consumption of alcoholic beverages after the legal hours of sale. On January 29, 1994, Officer Ed Mingus of the Lakeland Police Department was dispatched to Respondent's premises at approximately 2:29 a.m. Officer Mingus was dispatched to investigate a complaint of "loud noises and sale of alcoholic beverages after hours". When Officer Mingus arrived at Respondent's premises on January 29, 1994, he heard noise coming from the licensed premises and observed several cars in the parking lot. The front door of the licensed premises was locked and Officer Mingus knocked to gain entry. An unidentified person answered the door and Officer Mingus identified himself as a police officer and requested entrance. Within seconds after requesting entrance, Respondent opened the door and allowed Officer Mingus inside the premises. At the time, approximately five employees were cleaning the licensed premises and no alcoholic beverages were observed either being served or consumed by Officer Mingus. Officer Mingus gained entry to the premises within five minutes of first knocking on the door. Officer Mingus suspected that there were other people inside and, in this regard, he asked Respondent if there were, in fact, other people in the licensed premises. Officer Mingus told Respondent of his suspicion that he was violating the hours of sale whereupon Respondent reiterated of his awareness of the ordinance prohibiting sale of alcoholic beverages after hours and insisted that he was not violating the ordinance. Officer Mingus thereafter requested permission from Respondent to search the licensed premises and Respondent consented to a search. Officer Mingus observed approximately nine or ten patrons in the kitchen area. Officer Mingus again reiterated his suspicion that Respondent was violating the municipal laws concerning the hours of sale and gave Respondent a verbal warning that if he was caught violating the ordinance, he would face criminal and administrative sanctions. Detective Denny Phillips of the Lakeland Police Department conducted a sight investigation of Respondent's premises on January 29, 1994, both prior to and while Officer Mingus was inside the licensed premises. Detective Phillips was across the street from the licensed premises with an unobstructed view of the premises on January 29, 1994. On February 26, 1994, Detective Phillips continued his investigation of Respondent's licensed premises. Detective Phillips instructed Officer Ed Cain, also a patrol officer for the Lakeland Police Department, to enter the licensed premises in an undercover capacity. Officer Cain was instructed to attempt to remain in the licensed premises after 2:00 a.m., and to purchase an alcoholic beverage. Officer Cain entered the licensed premises at approximately 12:30 a.m. on February 26, 1994, and observed a crowded lounge consisting mostly of college-aged patrons. Respondent was observed inside the premises. Officer Cain observed a large number of the patrons leaving the premises by 1:00 a.m., and Respondent's employees escorted the remaining patrons from the licensed premises at approximately 1:45 a.m. Officer Cain was not asked to leave the licensed premises and he remained along with approximately four or five other patrons. At approximately 2:10 a.m., Officer Cain ordered a shot of Sambuca, an alcoholic beverage described as a licorice liqueur, from a female employee. Officer Cain placed $2.00 for the beverage on the counter of the bar. Officer Cain observed that same employee placing the money in a bank bag containing the contents of the cash register. Officer Cain is familiar with alcoholic beverages and what they smell and taste like and has consumed alcoholic beverages prior to the evening of February 26, 1994. Officer Cain exited the licensed premises and notified Detective Phillips that he had purchased an alcoholic beverage from an employee after 2:00 a.m. Detective Phillips entered the licensed premises and met with Respondent who was still in the licensed premises. Detective Phillips advised Respondent that undercover officer Cain had purchased an alcoholic beverage from an employee after 2:00 a.m. and that Respondent and the employee would be cited for violation of the municipal ordinance respecting the sale of alcoholic beverages after hours. Respondent usually has extra food left over from functions that he has at the licensed premises from time to time and the employees and others who were in the kitchen area of the licensed premises after 2:00 a.m., on January 29, 1994, were eating some of that extra food.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order imposing a civil penalty against Respondent in the amount of one thousand ($1,000) dollars for the above-referenced violation (sale of an alcoholic beverage after hours). DONE AND ENTERED this 22nd day of November, 1994, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1994. APPENDIX TO RECOMMENDED ORDER Rulings on Petitioner's proposed findings of fact: Paragraph 4, rejected, unnecessary and not probative. Paragraph 10, adopted as modified, paragraph 5, Recommended Order. Paragraph 16, adopted as modified, paragraph 8, Recommended Order. Paragraph 20, rejected, contrary to the greater weight of evidence, paragraphs 11 and 12, Recommended Order. Paragraph 27, rejected as being a recitation of testimony, and not proposed findings of fact. COPIES FURNISHED: John M. Houvardas, President El Greco, Inc. 1109 East Main Street Lakeland, Florida 33801 Richard Courtemanche, Jr., Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 John J. Harris, Acting Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence and on the testimony of the witnesses at the hearing, I make the following findings of fact: The Respondent, Jamestown In The Grove Apartments Club, Inc., d/b/a Suzanne's In The Grove, (hereinafter referred to as "Suzanne's") holds alcoholic beverage license number 23-1193, license series 11-C. Respondent has held the subject license since December of 1971. For a number of years the Respondent operated at its present location in much smaller premises. Several years ago the buildings where Respondent was located were demolished and a highrise condominium building was erected on the site. Respondent obtained space in the new building and embarked upon a plan to create a larger and fancier facility then it had previously operated. The new improved facility began operations in May of 1983 under the present name of Suzanne's In The Grove. The new improved facility is, in the words of one of the witnesses, "... a high fashion, beautiful people-type disco nightclub in Coconut Grove." The property and furnishings for the new improved facility required an investment in excess of two million dollars. During the planning stages for the new improved facility which opened in May of 1983, Suzanne's retained the services of a consultant who was an expert in the planning and operation of limited membership clubs. The consultant worked with the management of Suzanne's in designing the layout of the premises and in instituting operational procedures designed to maximize the ability of management to control access into the premises. The concepts employed by the consultant were modeled on the procedures used at limited access private clubs on military bases. The premises were specifically designed to facilitate the limitation of access to members and their guests. To that end, the premises had a small doorway, had a desk for checking membership just inside the doorway, and had a narrow stairway that led from the reception desk to the main area of the club. Suzanne's also issued plastic membership cards embossed with the member's name in raised letters. The operations procedures included provisions for a doorman, at least one receptionist at the desk, and at least one employee at the top of the stairs. Often they had more than one employee at the desk and at the top of the stairs. Due to unexpected extremely large crowds of patrons when Suzanne's first opened, they also contracted for additional security personnel to assist their regular employees with access control. As part of the preparation for the opening of Suzanne's the management of the club formulated a set of written policies for employees. Included in these written policies were specific prohibitions against any conduct which would constitute a violation of the alcoholic beverage laws. Each employee was given a copy of these written policies and was required to read the policies and then sign a statement agreeing to comply with the policies and acknowledging that he or she would be fired for any violation of the policies. These policies included a specific prohibition against admitting anyone who was not a member or a bona fide guest of a member. Between the opening of Suzanne's and the dates of the violations charged in this case, Suzanne's had fired employees for admitting people who were not members. Prior to opening in May of 1983, Suzanne's also instituted a policy of requiring periodic polygraph examinations of all employees. The consultant helped them formulate the questions to be asked during the polygraph examinations. The polygraph examinations specifically covered questions as to whether the employee was aware of the members-only regulations, whether the employee had ever distributed a membership card without collecting a membership fee and turning the fee over to the club, and whether the employee had ever let anyone into the club who was not a member or a bona fide guest of a member. If the results of the polygraph examination indicated that an employee was being deceptive about whether he or she had admitted non-members to the club, the employee was terminated. The consultant also assisted the management of Suzanne's in the selection of key employees and participated in the interviews of those employees. From the date of opening through August 28, 1983, Suzanne's sold 3,025 memberships at $50.00 each. Since August 28, 1983, Suzanne's has taken in an additional $198,000.00 in membership fees. Because of the large amount of revenue generated by the sale of memberships, Suzanne's has always been very interested in strict enforcement of the members-only policy. It is in Suzanne's best economic interests to maintain strict enforcement because without such enforcement there would be no reason for anyone to buy a membership and Suzanne's would in all likelihood lose substantial membership revenues. Suzanne's entire marketing concept would have been ruined if people could get in easily without having a membership card. When Suzanne's first opened in May of 1983, all employees were required to attend a meeting at which an attorney specializing in alcoholic beverage law told them about the requirements of the liquor laws in general and about the special provisions of the liquor laws relating to 11-C licenses. All of the employees were specifically told that the sale of alcoholic beverages was restricted to members and their guests. The consultant employed by Suzanne's recommended an emphasis on access control at the door rather than a system of point of sale control because Suzanne's did not have an in-house credit or charge system, which is the best system to use for a point of sale control system. An in-house credit system was prohibitively expensive where membership dues were only $50.00 per person. A typical Dade County club with an in-house credit system has an annual membership fee of $460.00 in addition to an initial fee of $1,000.00 to join. Since the dates of the violations charged in this case Suzanne's has maintained its access control procedure at the door and has added a point of sale control system as well. The point of sale control includes imprinting the membership card on all sales slips. On August 28, 1983, two investigators of the Division of Alcoholic Beverages and Tobacco went to Suzanne's at about 2:20 a.m. They told the doorman ("Robert") that they were not members but that they wanted to go in and look around. The doorman let them in, but told them that if anyone asked they should say they came in with a member. Once inside the premises, each of the DABT investigators ordered and were served an alcoholic beverage. None of the bartenders or barmaids asked if they were members. On September 7, 1983, the same two investigators returned to Suzanne's at approximately 11:40 p.m. They walked past the doorman and other employees and entered the premises. No one tried to determine if they were members. Both investigators ordered and were served an alcoholic beverage. On September 10, 1983, two DABT investigators (one who had been on both prior occasions and one who had not been there before) went to Suzanne's. A line of approximately 300 people were waiting outside to enter Suzanne's. To avoid waiting in the line, the two investigators went near the front of the line and waited until the one who had been there before could get the attention of Robert, the doorman. When he got Robert's attention, he asked Robert if Robert could do them a favor about the line and gave Robert $5.00. Robert took the money and admitted the two investigators without asking whether they were members. One of the investigators was able to order and be served an alcoholic beverage. It was so crowded inside that the other investigator was not able to place an order for an alcoholic beverage. On September 21, 1983, the two DABT investigators who had visited Suzanne's on the first occasions described above returned to the premises. Again they were able to enter without being asked about their membership status and both ordered and were served an alcoholic beverage. None of the DABT investigators who went to Suzanne's on the four occasions described above were members of the Suzanne's, nor were they bona fide guests of anyone who was a member. On each occasion when they were served alcoholic beverages, they paid the regular price for the beverages, approximately $3.50 each. On all four of the occasions described above when the DABT investigators entered Suzanne's and purchased alcoholic beverages, the club was very crowded. The extent of the crowds on those nights is reflected by the gross receipts for those four nights which were, respectively, $10,099.35, $5,125.60, $9,973.25, and $5,034.15. On all four of the occasions described above when DABT investigators entered Suzanne's, there were several employees of Suzanne's both in the area of the reception desk at the bottom of the stairs as well as at the top of the stairs attempting to control access to the premises and maintain control over the crowds. During 1983 Suzanne's was obtaining security services from Dade Federal Security. The security company would provide plainclothes guards to assist Suzanne's employees check membership, to help maintain order, and to help control the line outside when it was especially crowded. Sometime during 1983 the management at Suzanne's complained to Dade Federal Security that they suspected that some of the guards provided by Dade Federal Security had been taking money to admit non-members into the premises. Dade Federal Security confronted its employees with this complaint and one of the employees confessed to having taken money to admit non-members to Suzanne's. The employee was fired. The foregoing findings of fact contain the substance of the vast majority of the findings proposed by both parties. Proposed findings which are not incorporated in the foregoing findings are specifically rejected as irrelevant, as contrary to the greater weight of the evidence, or as unsupported by persuasive competent substantial evidence.
Recommendation On the basis of all of the foregoing, I recommend that the Director of the Division of Alcoholic Beverages and Tobacco enter a Final Order in this case dismissing all charges against the licensee. DONE AND ORDERED this 3rd day of July, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1985. COPIES FURNISHED: Howard Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Harold F. X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Sy Chadroff, Esquire 2700 Southwest 37th Avenue Miami, Florida 33133
The Issue Whether Respondent committed the offenses set forth in the Administrative Action and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent was licensed by Petitioner, having been issued license number 60-01280, Series 1- APS. No dispute exists that such license permits Respondent to make packaged sales of beer and wine at its establishment. Respondent's last known address is 148 West Avenue A, Belle Glade, Florida. Respondent's establishment is a convenience store. On or about April 17, 2002, Jeremiah Alexander Maxie went to Respondent's establishment for the specific purpose of attempting to purchase beer. Mr. Maxie is employed as an investigative aide for Petitioner. At the time that he visited Respondent's establishment, Mr. Maxie was under 21 years of age; he was 17 years of age, having been born on August 10, 1984. Mr. Maxie did nothing to alter his appearance in an attempt to affect his age. Mr. Maxie attempted to purchase beer at twelve other locations on April 17, 2002. He was paid $35 by Petitioner for that day. Mr. Maxie entered Respondent's establishment at approximately 4:50 p.m. Shortly thereafter, approximately 20 seconds later, Petitioner's Special Agent Danny Stoops, who was undercover, entered Respondent's establishment. Agent Stoops observed the actions of Mr. Maxie. Agent Stoops is a 24-year veteran with Petitioner. He gave Mr. Maxie instructions as to what to do. Agent Stoops instructed Mr. Maxie to attempt to purchase a Budweiser product and, if the clerk requested identification, for Mr. Maxie to politely set the beer down and leave. Mr. Maxie proceeded to the rear of Respondent's establishment to the coolers. He removed a can of beer, a Budweiser product, and proceeded to the cash register. At the time of hearing, Mr. Maxie could not recall the particular type of Budweiser product. Agent Stoops observed Mr. Maxie proceed from the coolers to the cash register although he did not observe the product that Mr. Maxie had obtained. Mr. Maxie gave the cashier/clerk, Armando Rodriguez, who is Respondent's owner, U.S. Currency as payment for the beer. Mr. Rodriguez placed the Budweiser product in a paper bag and gave Mr. Maxie a receipt, but Mr. Maxie did not look at the receipt. Mr. Maxie departed Respondent's establishment. At the time of hearing, Mr. Maxie could not recall the denomination of currency that he gave to Mr. Rodriguez or the amount that he had paid for the beer. Agent Stoops observed Mr. Maxie give Mr. Rodriguez the currency but did not observe the denomination. Agent Stoops departed Respondent's establishment approximately 15 to 20 feet behind Mr. Maxie. When they were outside, the purchased Budweiser product was given to Agent Stoops by Mr. Maxie. Both Agent Stoops and Mr. Maxie initialed the paper bag into which Mr. Rodriguez had placed the Budweiser product. Agent Stoops placed the Budweiser product in an evidence bag, tagged it with an evidence receipt bearing a control number, and secured the bagged evidence in the trunk of his vehicle. Agent Stoops removed the bagged evidence from the trunk of his vehicle and placed it in Petitioner's evidence vault. For hearing, Agent Stoops retrieved the bagged evidence from the evidence vault. The Budweiser product presented at hearing was a can of Bud Light Beer, which was still in the paper bag in which the beer was placed at the time of purchase. No challenge to the chain of custody of the can of beer was made and no problem exists as to the chain of custody of the can of beer. No receipt for the purchase of the Budweiser product was included in the bagged evidence. Agent Stoops could not independently recall that a receipt was presented to him by Mr. Maxie. Respondent entered into evidence cash register receipts for April 17, 2002, which do not reflect the purchase of any alcoholic beverage. However, the cash register receipts reflect, among other things, "taxable" and "grocery" items, not the particular items themselves, and "meat"; thereby, the cash register receipts differentiate only between "grocery" and "taxable" and "meat" items. Further, the cash register receipts are numbered 058616 through 058619, with times of day reflecting 16:05 through 16:09, and 058624 through 058627, with times of day reflecting 16:46 through 16:52. Not included in the cash register receipts are receipts numbered 058620 through 058623, with times of day reflecting 16:10 through 16:45. With the missing numbered-cash register receipts included, a total of 12 transactions were completed, but only eight transactions were offered and admitted into evidence. No explanation was presented for the missing eight transactions. Taking into consideration the overwhelming evidence of the purchase of the Budweiser product by Mr. Maxie, not having a receipt is insufficient to show that the beer-purchase transaction did not occur. Moreover, the evidence is clear and convincing that the beer-purchase transaction did occur. The product purchased at Respondent's establishment by Mr. Maxie was a can of beer, a Budweiser product, a Bud Light. At the time of hearing, Mr. Rodriguez was 76 years of age and had owned Respondent's establishment for 36 years. He is Respondent's agent. Mr. Rodriguez speaks Spanish. At the time of hearing, an interpreter was provided for him. Mr. Rodriguez denies that he saw Mr. Maxie in Respondent's establishment and denies that he sold any beer to Mr. Maxie. Mr. Rodriguez failed to realize to whom he sold the can of beer. At the time Mr. Maxie purchased the can of beer from Respondent's establishment, Mr. Rodriguez was engaged in a conversation with another gentleman. Mr. Rodriguez did not ask Mr. Maxie any questions or ask for his identification. Mr. Maxie said nothing to suggest that he was 21 years of age or older. As a matter of fact, no evidence was presented that any conversation took place between Mr. Maxie and Mr. Rodriguez. The evidence further suggests that Mr. Rodriguez paid very little attention to Mr. Maxie even at the time of the purchase of the beer. Mr. Rodriguez did not knowingly and willfully sell the can of beer to a minor, i.e., Mr. Maxie. Mr. Rodriguez was negligent and failed to exercise reasonable diligence in preventing the sale of the can of beer to Mr. Maxie. No prior disciplinary action has been taken against Respondent by Petitioner.
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 enter a final order: Finding that Lake Supermarket, Inc., d/b/a Lake Supermarket, violated Subsection 562.11(1)(a), Florida Statutes; Imposing a fine of $1,000.00 payable within a time deemed appropriate; and Suspending the license of Lake Supermarket, Inc., d/b/a Lake Supermarket, for seven days. DONE AND ENTERED this 31st day of December, 2002, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 31st day of December, 2002. COPIES FURNISHED: Chad D. Heckman, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Valentin Rodriguez, Jr., Esquire Valentin Rodriguez, P.A. 318 Ninth Street West Palm Beach, Florida 33401 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Peter Williams, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Danny Stoops, Agent Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 400 North Congress Avenue, No. 150 West Palm Beach, Florida 33401
