The Issue Whether respondent's alcoholic beverage license should be disciplined for five solicitations of alcoholic beverages; two solicitations for purpose of prostitution, assignation, or lewdness; and one incident of gross, lewd, and lascivious behavior allegedly committed on the licensed premises by respondent's employees.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license no. 16-2052, Series 2-COP be revoked for multiple violations of the Beverage Law. DONE and ENTERED this 23rd day of June, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1983. COPIES FURNISHED: John A. Boggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Sy Chadroff, Esquire and Lane Abraham, Esquire Suite 800 200 S. E. First Street Miami, Florida 33131 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Petitioner, vs. CASE NO. 83-388 DABT CASE NO. 33943-A C & A LOUNGES, INC. d/b/a ORANGE TREE LOUNGE, Respondent. /
The Issue Whether petitioner's suspension of respondents' license should be terminated or extended, or whether other disciplinary action should be taken against the license for the reasons alleged in the notice to show cause?
Findings Of Fact Respondents Raymond and Gwendolyn House hold alcoholic beverage license No. 27-00177, Series 4-COP, for Ray's Lounge & Package at 501 East Baars Street in a crime-ridden section of Pensacola, Florida. Until petitioner closed them down on October 27, 1991, as far as respondents and their managers knew, the licensed premises stood, in recent times, like an island in a veritable sea of open illegality. Mrs. House stationed security guards in front of the lounge, and assigned them the duty of keeping undesirables out. Young people ignore "no loitering" signs in the area and congregate on street corners, spilling into the street, blocking traffic and keeping "older folks" from passing. In the neighborhood outside respondents' establishment, drug sales take place in plain view of passersby. Although the authorities have closed the lounge, these problems persist. Except on Saturdays and Sundays when her husband opened the bar, Mrs. House arrived at ten in the morning and stayed until seven or eight at night, when she turned things over to the assistant manager, Ernestine Dunklin, or to her son Michael. Sometimes she came back after supper. The parents of six grown children, one of whom was allegedly prosecuted for selling heroin in the lounge in July of 1982, Mr. and Mrs. House have owned Ray's Lounge & Package for 18 years. Mr. House, who has worked at the Naval Air Station for two decades, leaves most of the management to his wife. Maggie Baldwin, who had worked at Ray's Package & Lounge for the last 15 years, arrived at seven and stayed until closing. She usually sat just inside the entrance, where she checked younger patrons' IDs. Neither Ms. Baldwin, Ms. Dunklin nor Ms. House has ever seen drugs used or distributed inside the lounge, or anybody appearing to use or sell drugs there. In the last few months, young women named Brenda and Senora worked at the lounge. Mario, another of the Houses' four sons and a full-time "installer" for Cox Cable, filled in for Ernestine Dunklin on August 24, 1991, when she was away at a cousin's wedding, but he has not worked at the lounge since. Like his brothers Raymond Jr., and Herman, he sometimes patronized the bar. On the night of September 1, 1991, however, Mario House was at home. John Anderson "Bud" McCants, who looked to be in his fifties, spent a lot of time at the lounge, where he was permitted to "bus" tables for tips. Although never on respondents' payroll, he also acted as a waiter, bringing drinks to patrons' tables and taking their money to a barmaid who (unlike him) was authorized to operate a cash register. He ran errands for Ms. House and often drove her home from the lounge. For these services, she paid him in cash. Many people who frequented Ray's Lounge & Package, in some cases three or four times weekly, among whom are Barbara Livingston, Helen Gaines, Randy Jean Peeples Broughton, and professional people including a doctor, an engineer, and Elmer Jenkins, a retired college professor who serves on the Escambia County School Board, have never seen or smelled drugs being used or sold there. Willie James Crenshaw, who lives four or five houses from Ray's Package & Lounge, was a regular customer Sunday nights. At least then, the crowd was mostly 50-ish and older, the proprietors' generation. But young "jits" also patronized the lounge, and respondents felt constrained to take steps to keep the premises "clean." A metal sign on the front door reads: ANYONE CAUGHT FIGHTING OR USING ANY ILLEGAL DRUGS ON THESE PREMISES WILL BE BARRED FROM THIS CLUB FOR LIFE AND SUBJECT TO DUE PROCESS OF LAW THANK YOU THE MANAGEMENT Respondents' Exhibit No. 1. Inside, signs were posted "from one end to the other," including in the bathrooms, advising patrons that monitors were on the look out for illegal activities. Friends, a grandson and employees did help monitor, including occasionally checking both bathrooms. When Ms. House thought she saw drugs being sold outside, she called the Escambia County Sheriff's Department, sometimes as often as five or six times a night. Between October 26, 1990, and October 31, 1991, sheriff's deputies made 289 trips to Ray's Package & Lounge. Perhaps partly because of her calls, law enforcement officials decided to "target" Ray's Lounge & Package. Undercover Agents Dispatched Casey Roberts, a "professional contract operator" whose primary occupation since 1972 has been as a confidential informant for law enforcement, found himself idle after some 60 domestic and an additional, approximately 60 international exploits. When he asked a friend at a federal agency for work, his friend put him in touch with Ray Reed, a special assistant to Escambia County's Sheriff, Charlie W. Johnson. The Escambia County Sheriff's Department also asked to "borrow" an undercover operative from Orange County. Orange County Deputy Sheriff Julia A. Chatman arrived in Pensacola in time to accompany Mr. Roberts to Ray's Package & Lounge on August 24, 1991. Both wore "wires," microphones and transmitters that Mr. Reed and Escambia County Deputy Sheriff Roosevelt Walker, Jr. (on every occasion but two) monitored from a vehicle nearby. As it happened, August 24, 1991, was Mrs. House's 63rd birthday. Entering the bar, the agents found what Mr. Roberts described as a "happy type of environment." After a half-hour visit to the bar between four and six o'clock that afternoon, the undercover agents returned around supper time and stayed an hour and a half. The birthday celebrants had shrimp for dinner. About ten o'clock that night, undercover agents Roberts and Chatman returned a third time and purchased a small plastic bag of cocaine from Bud McCants for $40 or $50. An occasional user of marijuana and cocaine, Mr. McCants, a "known liar and cheat," also has a problem with alcohol. (But somebody else had put the Crown Royal he was accused of stealing in his jacket pocket, he testified.) The uncontroverted testimony was that Mrs. House did not know that he "did drugs." After the purchase, the undercover agents left the bar and gave the cocaine to their handlers, then returned a fourth time and bought two more plastic bags of cocaine from "Bud" McCants for $40 each. Although she was on the premises the whole time, Mrs. House was unaware of either transaction. Both occurred while the bar was crowded. Each packet was on the order of an inch square, contained approximately one gram and could be carried unobtrusively in the palm of the hand. The next day Ms. Chatman and Mr. Roberts returned for an hour or two, and found only seven or eight other customers. Mrs. House was not at the bar then. (Her husband was not on the premises on any of the occasions on which the undercover agents visited.) Casey Roberts bought two pills containing hydromorphone hydrochloride or "Dilaudid" from Raymond House, Jr. First Roberts gave Raymond $100. A little while later Raymond left the premises. As he returned, Roberts met him at the door and received the pills in a "hand exchange." On August 30, 1991, agent Roberts paid Mr. McCants $40 for cocaine, only 25 or 30 feet from where Mrs. House, unaware of the transaction, was cleaning collard greens. On September 1, 1991, Roberts bought cocaine from McCants for $50 on two separate occasions. On September 4, 1991, Roberts again bought cocaine from McCants for $50, and also bought a single pill of hydromorphone hydrochloride (delivered in a folded napkin) for $60 from Raymond House, Jr. On September 7, 1991, the undercover agents returned to Ray's Lounge & Package Store. Ms. Chatman asked Senora where she could get some "blow," by which she meant cocaine (although Senora originally understood her inquiry to relate to marijuana.) Senora spoke to Michael Collins who approached Ms. Chatman. Eventually a third person, Dave, gave her cocaine in exchange for $50. Altogether the undercover agents went inside Ray's Lounge & Package on eight separate days, as many as four times on a single day. On ten to fifteen of these trips, they failed to obtain drugs. Ms. Chatman testified that the first time she offered Raymond House, Jr. drugs, he said "No, I don't deal with that," and returned money she had thrust on him. Now facing criminal charges, he did not testify himself. Licensees Not Shown To Be Culpable Ms. House testified convincingly that she did not know anything about any of the drug transactions proven at hearing, and that she was shocked and angry when she learned of them (on or after October 27, 1991.) The other evidence is completely consistent with her testimony in this regard. Nothing in the evidence suggested that Raymond House, Sr. had any knowledge of the transactions. The respondents knew that their son, Raymond House, Jr., was accused of agreeing to sell a packet of heroin over the telephone while working in the lounge in 1982. In fact, they removed the telephone on that account. Events in 1982 resulted in administrative proceedings against their license. Petitioner's Exhibit No. 3. Petitioner also proved that, in a case of mistaken identity, Bud McCants was arrested in 1986 on the licensed premises; and that, as it turned out, he had a single marijuana cigarette on his person at that time. But the evidence did not show that respondents knew about the marijuana (which had not occasioned the arrest.) Except for reports months and years earlier of drug use or dealing by patrons, the evidence did not clearly and convincingly show that respondents had reason to know (before October 27, 1991) of any illegal activity on the licensed premises since 1982, much less than they condoned, encouraged or fostered it. Mrs. House responded diligently and appropriately to any report of illegal activity that reached her, as far as the credible evidence showed.
Recommendation It is, accordingly recommended that petitioner terminate the suspension of respondents' license forthwith, and dismiss the notice to show cause filed against the license. RECOMMENDED this 26th day of November, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II 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 26th day of November, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-6985 Petitioner's proposed findings of fact Nos. 1, 4, 5, 8, 9, 10 and 14 have been adopted, in substance, insofar as material. With respect to petitioner's proposed findings of fact Nos. 2, 6, 11, 13, 17, and footnote 2, the evidence did not clearly establish that Raymond House, Jr. worked as a manager of the lounge or that respondents employed him in any other capacity. Credible testimony put him behind the bar helping himself to drinks, but Ms. Dunklin, who was responsible for work assignments, testified that he was not an employee, and was not ever scheduled to work; and her testimony has been credited. With respect to petitioner's proposed finding of fact No. 3 and footnote No. 1, the evidence showed that the Houses and Mr. McCants had known each other since 1968 or 1969, but not that he had worked for them continuously since then. At all pertinent times, however, the evidence did establish that he was a de facto employee of the licensees, even though not on the payroll. With respect to petitioner's proposed findings of fact Nos. 6 and 7 and footnotes Nos. 3, 4 and 5, Casey Roberts' testimony was wholly unreliable (and came to a sudden halt when he was asked to testify without referring to the administrative complaint.) His descriptions of accused sellers and others, which he rattled off with seemingly great assurance, bore no resemblance to reality. But for Ms. Chatman's testimony and that of the law enforcement officers who monitored conversations electronically, none of the transactions with Roberts would have been established. With respect to petitioner's proposed findings of fact Nos. 15 and 18, there was no evidence of drug use or drug dealing that was not carefully hidden from respondents and their managers. Bud McCants did not testify otherwise, (even though Bud McCants was brought to the hearing from jail where he is awaiting trial on charges of selling cocaine, giving him a strong incentive to cooperate with the authorities.) The fact that patrons discarded a marijuana cigarette, "suspected cocaine," and pills when the raid occurred on October 27, 1991, does not mean these items were visible beforehand, or intended for use or sale on the premises. With respect to petitioner's proposed finding of fact No. 16, the only evidence of conviction was hearsay. Respondents' proposed findings of fact Nos. 1, 2, 3, 6, 8 and 9 have been adopted, in substance, insofar as material. With respect to respondents' proposed finding of fact No. 5, respondents did not produce all the regular customers. With respect to respondents' proposed finding of fact No. 7, the monitoring officers received uninterrupted transmissions from the undercover agents' microphones, and could hear (usually loud) music as they entered the lounge, even if they did not have visual contact then. With respect to respondents' proposed finding of fact No. 10, although petitioner proved drug transactions occurred, petitioner did not prove that respondents knew this or were in any way responsible for it. COPIES FURNISHED: Thomas A. Klein, Esquire 725 South Bronough Street Tallahassee, FL 32399-1000 Leo A. Thomas, Esquire Levin, Middlebrooks, Mabie, Thomas Mayer & Mitchell P.O. Box 12308 Pensacola, FL 32501 Richard W. Scully, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, FL 32399-1000 Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000
The Issue The issues for disposition are whether Respondent sold alcoholic beverages to an underage person in violation of section 562.11(1)(a), Florida Statutes, as alleged in the Petitioner’s Administrative Action dated February 20, 1996, and if so, what penalty or discipline is appropriate.
Findings Of Fact Respondent is the holder of alcoholic beverage license no. 69-01472, Series 2APS, for a licensed premises doing business as Superette #3, located at 199 North Country Club Road, Lake Mary, Seminole County, Florida. On February 8, 1996 and at all relevant times, Salim Dhanani was the sole corporate officer and sole shareholder of Superette #3, Inc., the holder of the above-referenced alcoholic beverage license. The “City/County Investigative Bureau” (CCIB) is a task force of officers from the Seminole County Sheriff’s Department and surrounding cities assigned to investigate crimes relating to drugs, alcohol and vice, including the sale of alcohol to minors. CCIB acts on complaints and works with the Florida Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (DABT). Darrell Brewer, born March 18, 1976, was a police explorer who was asked to help the CCIB investigate sales of alcohol to underage persons. On February 8, 1996, he was 19 years old and was working with Officers Johnson and Hartner. On February 8, 1996, in the evening around 8:00 p.m., Brewer and a CCIB agent entered the licensed premises, Superette #3. Brewer wore jeans and a tee-shirt and carried cash and a valid ID, which he was instructed to present if requested. Brewer picked out a 6-pack of Miller Genuine Draft beer and took it to the counter, where he purchased it without being asked for identification or any question regarding his age. Brewer turned over the beer to Officer Johnson, who returned to the store and arrested the clerk who had made the sale, Salim Dhanani. In May 1996, Dhanani went to court and pled no contest to the criminal charge of sale of alcohol to an underage person. He paid a fine. In his eleven years in the United States, this is the only violation by Dhanani. He worked in several places before taking over Superette #3 in November 1993, and he never had problems with DABT. After the Brewer incident, Dhanani hired a private consultant to train his wife and him and their one employee. They learned to “ID” everyone, including regular customers; they posted signs and notices informing customers of their “responsible vendor policy” and their intent to prosecute minors attempting to purchase alcohol. Dhanani admits that he sold beer to Brewer without asking for identification and without questioning his age. Brewer is a large, mature youth who, at the time of hearing, looked to be in his mid-20’s. To Dhanani, at the time of sale, Brewer appeared to be “28 or so”. Under the responsible vendor program any customer who appears to be under the age of 30 must be required to present proper identification. Through Capt. Ewing, DABT presented unrebutted evidence that the premises in Lake Mary has been vacated by the licensee, Superette #3, Inc., and a new license was issued to the landlord of the premises. Cancellation of the Superette #3 license is in abeyance pending this proceeding.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Division of Alcohol Beverages and Tobacco enter its final order finding that Respondent committed the violation alleged in the Administrative Action, assessing a fine of $1000.00, and suspending the license for 7 days, or until Respondent has found an approved new location. DONE and ENTERED this 17th day of April 1997 in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April 1997. COPIES FURNISHED: Thomas D. Winokur, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Steven G. Horneffer, Esquire Suite 109 101 Sunnytown Road Casselberry, Florida 32707 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue presented is whether Respondent violated the Final Order of Petitioner by failing to pay $1,250 to Petitioner on or before the expiration of 30 days after the entry of the Final Order.
Findings Of Fact Petitioner is the state agency responsible for regulating the sale of alcoholic beverages. Respondent is licensed to sell alcoholic beverages pursuant to license number 15-02311, Series 4COP SRX. The licensed premises are located at 680 George J. King Boulevard, Port Canaveral, Florida, 32920. On October 2, 2000, Petitioner entered a Final Order that required Respondent to pay an administrative fine of $1,250 within 30 days of the date of entry of the order. Respondent appealed the Final Order to the First District Court of Appeal. The First District Court of Appeal upheld the Final Order. Respondent failed to pay any portion of the administrative fine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 561.29; imposing an administrative fine of $2,500, pursuant to Rule 61A-2.022(8); and permanently revoking alcoholic beverage license number 15- 02311, Series 4COP SRX. DONE AND ENTERED this 24th day of May, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2002. COPIES FURNISHED: Richard Turner, Director Division of Alcoholic Beverages & Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Chad D. Heckman, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Raymond J. Cascella Manos Inc., d/b/a Sea Port Restaurant 680 George J. King Boulevard Port Canaveral, Florida 32920 Capt. German Garzon Department of Business and Professional Regulation 400 West Robinson Street, Room 709 North Tower, Hurston Building Orlando, Florida 32801
The Issue The issue presented concerns the entitlement of the named Petitioners to he granted a new Series 2-COP beverage license from the Respondent, in the face of a disapproval letter entered by the Director of the State of Florida, Division of Alcoholic Beverage and Tobacco.
Findings Of Fact Bruce F. Eggett and Timothy R. Miller, the named Petitioners in this cause, have made application for the issuance of a new Series 2-COP beverage license. This application has been made with the Respondent, State of Florida, Division of Alcoholic Beverages and Tobacco and in response to this request the Director of the Division of Alcoholic Beverages and Tobacco wrote the Petitioners on July 10, 1980, and in the course of that correspondence indicated his intent to deny the license application. The stated ground for denial was that "one of the applicants convicted of felonies within past fifteen years." The stated authority for the denial was Section 561.15, Florida Statutes. 1/ The Petitioners did not agree with the decision of the Director and orally requested an administrative hearing in this cause. This request was made with Captain Jack Wallace, Beverage Officer and District Supervisor for the Orlando, Florida, District. After receiving the oral request, this matter was made known to the legal staff of the Respondent and one of the staff attorneys, acting at the behest of the Director of the Division of Alcoholic Beverages and Tobacco, asked the Division of Administrative Hearings to conduct the formal hearing pursuant to Section 120.57(1), Florida Statutes. The hearing was conducted on September 8, 1980, and although the Petitioners had been duly noticed of the hearing, the Petitioners did not attend nor offer anything in behalf of their request for license. The Respondent presented copies of the license application request of both Bruce Francis Eggett and Timothy Robert Miller. The application form mentioned here is a personal questionnaire, individually, completed by the Petitioners. (Copies of those personal questionnaires pertaining to Eggett and Miller may be found as the Respondent's Exhibits No.1 and 2 admitted into evidence respectively.) Question 6 of the questionnaire asks the following: Have you ever been: Arrested for violation of any other law of this state, any other state or the United States? (excluding minor traffic) If answer to any of these questions is yes, list aliases and give full disclosure of charges, dates, arresting agencies and places of arrest." To this question, the Petitioner Eggett marked "yes" and stated (1) 1971 breaking and entering and (2) 1977, delivery of Methaquaalude. In response to the same question, Petitioner Miller answered that he had been arrested in 1968 for public intoxication and blocking traffic in Canton, Ohio. No further proof was offered by the Respondent on the question of these arrests and the disposition made of the matters.
Recommendation It is RECOMMENDED that the Director of the State of Florida, Division of Alcoholic beverage and Tobacco, deny the Petitioners, Bruce F. Eggett's and Timothy P. Miller's request to be granted a new Series 2-COP beverage license. DONE AND ENTERED this 24th day of September, 1980, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1980. Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1980.
Findings Of Fact At all times material hereto, the Respondent was the holder of a valid alcoholic beverage License No. 58-1090, Series 2APS. Respondent is a corporation which owns and operates several convenience stores in the Orlando, Florida area. On February 19, 1983, David Aaron Morgan purchased twelve cans of Budweiser beer at the Respondent's "Pore Jack's store located at 2233 Goldenrod Road, in Orlando, Florida. The purchase was made from a Mr. Claude P. Gillenwater, a clerk and employee at the store. Mr. Morgan had purchased beer from Mr. Gillenwater on at least three (3) prior occasions. At the time of his first purchase of beer from Gillenwater, David Morgan was required to show identification. He showed Mr. Gillenwater a restricted driver's license on which the year of birth appeared to be 1963. Mr. Morgan's date of birth is July 1, 1965. On February 19, 1983, Mr. Gillenwater did not check Mr. Morgan's identification. Mr. Morgan had never informed Mr. Gillenwater that he was underage. He knew Mr. Gillenwater would not serve him beer if he knew he was underage. The information on the restricted license was unclear because the license had been partially mutilated in the washing machine in the Morgan home. David Morgan is in the eleventh grade at Colonial High School. He is 5'8" tall and weighs approximately 160-170 pounds. He wears a mustache and has for over a year. After purchasing the beer, David Morgan left the store and walked to a car in the parking lot where two friends were waiting in a car. Mr. Morgan was observed leaving the store with the beer by Beverage Officers Homer Kenneth Rigsby and Claude E. Cruz. The beverage officers followed Mr. Morgan and his friends as they drove away from the store and stopped them a short distance away. Mr. Morgan was placed under arrest and taken to his home, where his parents were informed of the purchase of beer. It was then verified by a driver's license produced by Mr. Morgan's mother that he was, in fact, not of legal age to purchase alcoholic beverages. Prior to the February 19, 1983, incident, Mr. Gillenwater had been an employee with Respondent for six (6) years. He worked different shifts on an as need basis and the Respondent had never received any complaints regarding the performance of his duties. At the time of his initial employment, Mr. Gillenwater received training and instruction regarding his duties and specifically his responsibilities in assuring compliance with the beverage laws. After his initial training , Mr. Gillenwater was required to work under the supervision of the manager of the store or an experienced cashier until he became familiar enough with the policies and procedures of the company. All employees, and specifically Mr. Gillenwater, were instructed in checking identifications and in the Respondent's strict policy against sales of alcoholic beverages to minors. Mr. Gillenwater was fired by Respondent as a result of this incident. The store in question had a sign posted informing customers that they must be 19 years of age to purchase alcoholic beverages and that a Florida driver's license would be required as identification. (See Respondent's Exhibit 1.) There was also a sign reflecting the date prior to which a customer had to have been born in order to be able to purchase alcoholic beverages. Respondent's employees were instructed to require a driver's license as identification each time a purchase of alcoholic beverages was made by anyone who appeared under 30 years of age. They were required to do this until they became familiar with the particular individual and recognized him on sight as a person who had previously provided proper identification. There was no evidence that Respondent had had any previous violations at the store involved or at any of its other stores. During most of the hours the store is open, a manager or assistant manager is on duty supervising the cashiers. Respondent had no notice or information that any of its employees were failing to follow its procedures regarding the requirement for proper identification.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Respondent be found not guilty of the violation charged in the Notice to Show Cause and that the charge be dismissed. DONE and ENTERED this 28th day of June, 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 28th day of June, 1983. COPIES FURNISHED: Aldo Icardi, Esquire Post Office Box 879 Winter Park, Florida 32790 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Executive Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Findings regarding general matters The Respondent, Ernest Scott, d/b/a Sonny's Stardust Lounge and Restaurant, is the holder of a special alcoholic beverage license for premises located at 5181 N.W. 9th Avenue, Fort Lauderdale, Broward County, Florida. His current license number is 16-00368SRX. The type of license held by the Respondent is a special license authorized by Chapter 61-579, Laws of Florida. The Respondent purchased the licensed premises as a going business in 1983. At that time the business had a similar license, which license was transferred to the Respondent when the Respondent purchased the business. Findings regarding sales to minors On December 15, 1989, Respondent's employee, Lillian C. Pender, unlawfully sold an alcoholic beverage to a person under the age of twenty-one years. The beverage sold was a 12-ounce can of Budweiser beer. The minor to whom the sale was made was Jerry Wieczorek, age 16, date of birth April 11, 1973. 2/ On January 12, 1990, the Respondent, Ernest Scott, unlawfully sold an alcoholic beverage to a person under the age of twenty-one years. The beverage sold was a 12-ounce can of Budweiser beer. The minor to whom the sale was made was Seth Ross, age 18, date of birth August 22, 1971. At the time of the alcoholic beverage sale on January 12, 1990, Seth Ross was engaged as an under age "Investigative Aide." His primary function in that capacity was to attempt, under the watchful eyes of the Division's Investigators, to purchase alcoholic beverages from various premises licensed to sell alcoholic beverages. When his efforts were successful, the Division Investigators would arrest the person who sold the alcoholic beverage to the Investigative Aide and would issue a notice to the licensee. All Investigative Aides, including Seth Ross, were instructed not to make any false statements about their age, not to use any false identification documents, and to answer truthfully any questions regarding their age that might be asked by the person from whom they were attempting to buy alcoholic beverages. Shortly after 8:00 p.m. on the evening of January 12, 1990, Seth Roth entered the licensed premises and walked up to the bar. The Respondent, Ernest Scott, was on duty behind the bar. Ross asked the Respondent for a Budweiser and in response the Respondent asked Ross for identification. Ross handed the Respondent a valid Florida driver license that contained Ross' correct date of birth, namely August 22, 1971. The Respondent looked at the driver license and then said to Ross, "This makes you twenty." Ross replied, "No, it makes me eighteen." The Respondent said something to the effect that that was "good enough," and sold a Budweiser beer to Ross. Ross paid for the beer and then walked over to where two Division Investigators were sitting and delivered the beer to them. 3/ Findings regarding seating accommodations The furniture inventory at the time of Respondent's purchase of the licensed premises included the following: 49 four seat tables, 5 two seat tables, and 206 chairs. Except as specifically noted in the findings which follow, that original inventory of furniture has been continuously located on the licensed premises. Since the purchase of the licensed premises the Respondent has added some furniture to the licensed premises, including at least 5 small chairs and one large table. On December 18, 1989, Investigator R. W. Dees went to the licensed premises, contacted the Respondent, and conducted an inspection of the licensed premises. On the basis of the inspection, Investigator Dees concluded that the licensed premises were not being maintained in compliance with Chapter 61-579, Laws of Florida, and he issued a notice to that effect to the Respondent. 4/ The notice constituted a warning to the Respondent, as well as specific instructions regarding what the Respondent was required to do to be in compliance with the requirements of Chapter 61-579, Laws of Florida. At the time of the inspection on December 18, 1989, the Division's policy with regard to first offenses regarding the accommodations required by special acts like Chapter 61-578, Laws of Florida, was to issue a warning and to allow the licensee ten days within which to take the necessary corrective action. On the basis of the record in this case it cannot be said with certainty how many patrons could be served full course meals with the accommodations on the licensed premises at the time of the inspection on December 18, 1989. 5/ However, by the next day the Respondent had taken steps to remedy any deficiencies in that regard, and on December 19, 1989, there were sufficient tables and chairs on the licensed premises to serve at least two hundred patrons at tables. On January 12, 1990, Investigators Krauss and Dees conducted another inspection of the Respondent's licensed premises. At the time of the inspection on January 12, 1990, there were a sufficient number of tables and chairs on the licensed premises for service of at least two hundred patrons. 6/
Recommendation For all of the foregoing reasons, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a final order in this case to the following effect: Concluding that there has been no violation of Chapter 61-579, Laws of Florida, and dismissing the charges set forth in the second and fourth paragraphs of the Notice To Show Cause; Concluding that the Respondent did violate Section 562.11, Florida Statutes, by reason of the sale, by the Respondent's employee, of an alcoholic beverage to a minor, as charged in the first paragraph of the Notice To Show Cause; Concluding that the Respondent did violate Section 562.11, Florida Statutes, by reason of the sale, by the Respondent, of an alcoholic beverage to a minor, as charged in the third paragraph of the Notice To Show Cause; and Imposing a penalty consisting of a fine in the amount of five hundred dollars ($500.00) for the violation described in subparagraph (b) of this recommendation and an additional fine in the amount of five hundred dollars ($500.00) for the violation described in subparagraph (c) of this recommendation. RECOMMENDED at Tallahassee, Leon County, Florida, this 24th day of September, 1990. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1990.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent's license number 42-55 be revoked. Respectfully submitted and entered this 27th day of February, 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. C.A. Nuzum Director Division of Beverage 210 Johns Building Tallahassee, Florida Mr. Charles F. Tunnicliff Department of Business Regulation 725 S. Bronough Street Room 210, Johns Building Tallahassee, Florida 32304 Mr. White Route 2, Box 13B Marianna, Florida 32446
Findings Of Fact No evidence was offered at the hearing to establish that the Licensee holds a beverage license issued by the State of Florida, Department of Business Regulation, Division of Beverage. It is alleged in the Agency's Notice to Show Cause that the Licensee holds beverage license number 52-207. No issue was raised as to whether the Licensee holds a beverage license. It will be assumed for the purpose of this order that the Licensee holds beverage license number 52-207. No admissible evidence was offered or received at the hearing to establish that the Licensee has violated any provisions of Florida Statutes s. 561.29 as is alleged in the Notice to Show Cause issued by the Agency.
The Issue Whether Respondent's alleged possession of marijuana and paraphernalia commonly associated with its trafficking and sale justifies suspension or revocation of his Florida teaching certificate.
Findings Of Fact Based on the evidence presented at hearing, the following facts are determined: I. BAKER holds Florida teaching certificate No. 403108. From 1976 to 1980, he taught fourth and fifth grades at Fessenden Academy, an elementary school located in a rural area of northern Marion County. He was a competent classroom teacher. In 1979, upon recommendation of his school principal, the Marion County School Board granted him continuing contract status--a form of tenure. (Testimony of Broxton, Prehearing Stipulation.) II. In the early part of 1979, BAKER--against the advice of his school principal--became involved in helping operate a small nightclub in Ocala known as the Club Aquarius ("Club"). Although there was no School Board policy against part-time employment by teachers, BAKER's principal advised against becoming involved with the Club because of its poor reputation in the community. However, BAKER's subsequent operation of the Club Aquarius did not adversely affect his teaching performance. (Testimony of Broxton.) During his employment at the Club, several members of the community informed BAKER's school principal that they suspected illicit drugs could be obtained there. In response to his principal's inquiry, BAKER repeatedly denied that anyone at the Club was involved in drug dealing. (Testimony of Broxton.) II. The owners of the Club (Mr. and Mrs. Clyde Howard and Dr. Ernest Lamb 2/ ) applied for and were issued a "2-COP" license by the Department of Business Regulation, Division of Beverage, in 1977. Only beer and wine may be sold under such a license. Possession of distilled liquor on the premises is not allowed. In accordance with the Division's requirements, a "Sketch of the Licensed Premises" was made by the Division of Beverage agent, verified by one of the owners, and attached to the application. The owners also executed an attached affidavit swearing that the sketch was "substantially a true and correct representation of the premises to be licensed and . . . [agreeing] that the place of business, if licensed, may be inspected and searched during business hours . . . without a search warrant . . . ." (P-1.) The sketch depicts those portions of the Club Aquarius building where the license is intended to be in effect-- where routine beverage inspections may be conducted without a search warrant. The owners understood that adjacent property which they controlled and which was accessible by passage from the nightclub was considered part of the licensed premises and subject to warrantless search under the Beverage Law. In order to remove such adjoining property used for residential purposes from the licensed premises (and sketch attached to the application) they understood that the passage way must be permanently sealed. (Testimony of Scroggin; P-1.) The sketch shows the licensed premises of the Club consists of two floors. The first floor includes the main bar, dance floor, kitchen, restrooms, storage room, and package sales area. Stairs on each side of the dance floor lead to the second floor, which consists of restrooms, a balcony overlooking the dance floor, and several additional rooms, one of which contains a wooden bar. The second floor area provides a quiet atmosphere for customers preferring to enjoy drinks and dance floor entertainment from the overlooking balcony. The second floor area permits free passage and is directly connected to the Club's first floor business area. (Testimony of Scroggins, Jones, Imperial; P-1.) III. At approximately 4:45 p.m., on January 24, 1980, Richard Jones and Michael Imperial--Beverage officers employed by the Florida Division of Alcoholic Beverages and Tobacco--began an inspection of the Club Aquarius to determine compliance with the Beverage Laws. Neither officer suspected or had reason to believe that illegal alcohol or illicit drugs might be found on the premises. The last time Agent Jones had inspected the Club to ascertain compliance with the Beverage Laws was in February, 1979; during that inspection, no illegal alcohol or illicit drugs had been found. Agent Imperial had inspected the Club early in 1978, and found nothing out of order. The practice of their Division was to routinely inspect the premises of licensed alcoholic beverage establishments at least once per year. On that afternoon of January 24, 1980, the Beverage agents decided on their own initiative to inspect the Club because they were in the vicinity and had time to conduct a periodic routine inspection. (Testimony of Jones, Imperial, Deen.) After identifying themselves, the two Beverage officers informed BAKER and his brother, Clyde Baker--who were operating the Club--that a routine beverage inspection would be conducted. The officers then inspected the cooler, bar, and surrounding first floor area. After finding some empty cognac bottles in a trash can, Officer Jones informed Clyde Baker that the presence of such bottles on the premises was unlawful. Jones then asked him to show him the upstairs part of the Club. Together they climbed the stairs to the second floor. There, Officer Jones observed that a door, with an "Office" sign on it, was ajar. He entered the room and observed two bottles of distilled liquor in plain view on a bar: that bar is depicted on the "Sketch of Licensed Premises" attached to the beverage license application, infra. After placing Clyde Baker under arrest for allowing distilled liquor on an establishment with a 2-COP license, Officer Jones continued to inspect the room for additional contraband. He searched a chest of drawers and found in the bottom drawer a triple beam balance scale and approximately 40 small paper envelopes commonly referred to as "nickel bags" --paraphernalia commonly used by drug dealers to measure and sell illicit drugs. He also discovered two plastic bags--one, 6" x 6", and another, 10" x 10". The smaller bag contained what appeared to be marijuana; the other contained what appeared to be marijuana residue. Upon discovery of what appeared to be marijuana, Officer Jones exclaimed "marijuana". BAKER, who had just come upstairs with his wife, entered the room and responded: "That's not marijuana, that's just my seeds." (Tr. 43.) Agent Jones immediately arrested BAKER for possession of marijuana, and escorted him downstairs. After resuming his search of the second floor area, Jones entered another room depicted on the "Sketch of Licensed Premises"; there he found a metal can--approximately 10" x 12"--which appeared to contain marijuana residue. (Testimony of Jones; P-1.) The two upstairs rooms where the marijuana and paraphernalia were found were depicted on the beverage license application as a part of the licensed premises. They were unlocked and accessible from the first floor; one room contained a bed, chest of drawers, dresser, clothes, and other personal effects; the other room contained a cot. Both rooms looked as if someone might sleep in them for several hours or an evening. At hearing, the parties stipulated that BAKER sometimes used one of the rooms as his residence. Immediately after the marijuana was found, Clyde Baker stated that he was manager of the Club and responsible for the marijuana and liquor being there. It is concluded that the Club manager exercised dominion and control over the second floor rooms. However, most of the equipment and supplies normally used in the operation of the nightclub, such as beer, wine, coolers, dance floor, and barstools, were located on the first floor. Customers could come and go without entering the second floor area. (Testimony of Jones, Prehearing Stipulation; P-1.) BAKER was subsequently charged with unlawful possession of less than 20 grams of marijuana pursuant to Section 893.13, Florida Statutes. The School Board of Marion County thereupon suspended him from his teaching duties at Fessenden Academy. Crime lab analysis confirmed that the two plastic bags and metal can contained marijuana residue with a total weight of less than 20 grams. Fingerprints on the metal can, and plastic bags were identified as belonging to BAKER. On May 7, 1980, BAKER pled guilty to the charge of possession of less than 20 grams of marijuana. The County Court of Marion County withheld adjudication of guilt and sentenced BAKER to pay $500 in court costs, and suspended a sentence of one year of imprisonment in the county jail upon the condition that BAKER would commit no further criminal offenses for a period of one year. (Testimony of Broxton, Prehearing Stipulation; P-2, P-3.) III. School Board hearings involving BAKER's suspension were televised and his involvement with marijuana has become widely known in the community. Newspapers have published accounts of the criminal charges and their disposition. His arrest and subsequent plea of guilty to the charge of possession of marijuana have gained notoriety and seriously reduced his effectiveness as a teacher for the Marion County School Board. Parents of children at Fessenden Academy would object to BAKER resuming his teaching duties there. Teachers must serve as examples and impart character and moral values to their students. BAKER's involvement with marijuana has interfered with his ability to effectively carry out this important function. (Testimony of Broxton, Jones.)
Conclusions Petitioner has established that Respondent's possession of marijuana and paraphernalia commonly associated with its trafficking and sale violates Section 231.28, Florida Statutes (1979). Permanent revocation of his teaching certificate is warranted.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the teaching certificate of Respondent, Clinton Baker, be revoked permanently. DONE AND ORDERED this 23rd day of March, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the clerk of the Division of Administrative Hearings this 23rd day of March, 1981.
