Findings Of Fact At all times relevant to this case, Joel Albert Collinsworth held a valid Division of Alcoholic Beverages and Tobacco liquor license for the premises known as the Silver Bullet Bar and Lounge (hereinafter licensed premises), located at 12 North Ninth Street, DeFuniak Springs, Walton County, Florida. Petitioner's Exhibit 1. The license held by Respondent is number 76- 330, Series 2-COP and is limited to the sale of beer and wine on the licensed premises. Investigator Don Taylor is a police officer with the DeFuniak Springs, Florida, Police Department. On Thursday, December 10, 1987, Investigator Taylor entered the licensed premises and seized glass containers of liquid that were marked as Petitioner's Exhibits 2, 3, and 4. The containers were only partly full. Investigator Taylor, has on many occasions, observed, smelled and tasted distilled spirits (and testified that the liquid was whiskey and not wine or beer.) Respondent, Joel Albert Collinsworth was on the licensed premises at the time Exhibits 2, 3, and 4 were seized and was immediately placed under arrest by Investigator Taylor. The three (3) glass containers were taken to the Florida Department of Law Enforcement laboratory in Pensacola, Florida for testing and identification of the liquid contained in the three (3) bottles. The lab results shows that the liquid contained a high concentration of ethyl alcohol. Petitioner's Exhibit 5. Investigator Roy Harris, an 18 year veteran of the Division testified that the concentrations of alcohol listed in Exhibit 5 were sufficiently high that they could not be anything other than distilled spirits. The 2-COP license held by the Respondent allowed only consumption on the premises of beer and wine. The license does not permit possession, consumption or sale of distilled spirits on the licensed premises. The evidence showed that distilled spirits were being possessed and/or consumed on the premises owned and operated by Respondent under his beverage license. Such possession and consumption constitute a violation of Section 562.02, Florida Statutes. Petitioner requested that Respondent's license be revoked for the violation of the Liquor Law. No mitigating facts were presented by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is therefore RECOMMENDED: That Respondent is guilty of the offense set forth in the Notice to Show Cause issued on January 13, 1988, and that Petitioner should revoke the license of Joel Albert Collinsworth, d/b/a Silver Bullet Bar and Lounge. DONE and ENTERED this 22nd day of July, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1295 Petitioner's Proposed Findings of Fact contained in paragraph 1, 2 and 3 have been adopted in substance in so far as material. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 W. Paul Thompson, Esquire Post Office Drawer 608 DeFuniak Springs, Florida 32433 Lt. Tom Stout, District Supervisor Division of Alcoholic Beverages and Tobacco 160 Governmental Center Suite 401, 4th Floor Pensacola, Florida 32501 Van B. Poole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Harlen Brown, was called and testified that he is a member of a corporation which owns the property which is the subject of this hearing and is located at 477 Northwest Lucy Street, Florida City, Florida. He testified that the licensee rented the space from the corporation on a month to month basis and that he was aware of the charges pending against the licensee. 1/ Brown stated that he was experiencing problems with licensee Washington and that residents of the community had also expressed their problems which were in the nature of a nuisance to the community but that the residents are not criminally inclined. Brown indicated that he would file an application to operate the premises as a beer and wine disco arrangement and that it was his intent to renovate the premises and cater to adults and not minors. He expressed the opinion that the problems stemmed from the prior lessees. Brown urged that if the licensee's license was revoked, that it be done without prejudice. Michael Somberg, a beverage officer for approximately 18 months testified that he visited the Spot Bar on November 2, 1975, along with public safety officers Swain, Davis and others at approximately 12 o'clock, based on complaints that minors were consuming alcohol. Police officers that were also on the scene made an I.D. check of all the occupants on the premises and detained a juvenile, Larry Melvin, whose age as subsequently established revealed that he was 15 years old. He at the time of his detainment was carrying a sealed can of Miller's Beer. Somberg tasted and smelled the beer and determined that it was an alcoholic beverage. He placed Melvin under arrest and the beer was given to Officer E. W. Pfitzenmaier, who in turn submitted it to the crime laboratory bureau of the Metropolitan Dade County Public Safety Department for a laboratory analysis report. The examination conducted on the beer submitted that it contained ethyl alcohol 2.01 percent by volume or 1.61 percent by weight. Somberg testified that there was a flurry of activity on the premises when they announced themselves as beverage agents and/or policemen and that there was an attempt by the patrons to rid themselves of several packets and other items which turned out to be contraband. Somberg found one aluminum packet which contained 8 small packets of what appeared to him to resemble cocaine. He also gathered small amounts of marijuana and other paraphernalia from the floor of the premises. He retained the paraphernalia and had a field reagent test conducted on the narcotics. Present with Somberg was Officer Pfitzenmaier who also assisted in gathering the large wrapper which contained the 8 small packets of the white substance which according to him resembled cocaine also. Pfitzenmaier testified that he, at all times, maintained the confiscated items under his care, custody and control until turned over to the Dade County Laboratory Department. The various reports and items were received in evidence and marked for identification as Board's Exhibits 3 through 10. Also introduced was the notice of hearing which was issued to Licensee Washington and as Exhibit Number 12 the notice to show cause why his license should not be revoked. An examination of the items revealed that the licensee and/or his agents sold to a minor a liquid containing ethyl alcohol; that among the items confiscated was heroin and marijuana i.e., 13.6 grams of marijuana and heroin and 8 small packets containing cocaine. Also introduced was a carton containing 100 packages of non Florida tax paid cigarettes which were found on the licensed premises on January 8, 1976. This possession violates Florida Statutes 561.29(1)(B).
Findings Of Fact Petitioner is the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is Lillian Marie Reynolds, d/b/a Diamond Lil's, who currently operates under beverage license number 54-00573, Series 2-COP, at U.S. Highway #1, Lot #5, Big Coppitt Key, Monroe County, Florida. On August 7, 1986, the Monroe County Sheriff's Department and Petitioner began an undercover narcotics investigation entitled "Operation Sabre". As part of that investigation, two of Petitioner's beverage agents conducted surveillance of Respondent's licensed premises. On August 15, 1986, Petitioner's investigators, Deloach and Warner, entered this licensed premises. They met a patron known as "Ken" and discussed the purchase of marijuana. Subsequently, Ken sold Investigator Deloach approximately 3.4 grams of marijuana, in exchange for $10. This transaction occurred in plain view and took place in an open and notorious manner inside the licensed premises. On that same day Investigator Deloach was invited into the ladies' bathroom by two other patrons to use cocaine. He observed the patrons "snort" cocaine in the licensed premises. On August 16, 1986, Investigators Deloach and Warner reentered the licensed premises. Investigator Deloach was approached by the patron Ken regarding the sale of marijuana. During the conversation, Ken displayed a marijuana cigarette in plain view. Later in the evening, the investigators were approached by Steve Anderson, a member of the band that played at Diamond Lil's. Anderson discussed future sales of marijuana to the investigators. Anderson then sat on the floor just inside the front door of Diamond Lil's, rolled a marijuana cigarette, lit it, smoked it, and passed it to Investigator Deloach who simulated smoking it. On August 18, 1986, Investigators Deloach and Warner returned to the licensed premises. On this occasion, Respondent's son Kevin Blackburn was acting as the bartender/manager. The investigators were approached by Steve Anderson, who inquired whether they would be interested in purchasing some marijuana or cocaine. In response thereto, Investigator Deloach handed Anderson $10 for the purchase of some marijuana. However, Anderson later returned Investigator Deloach's money and stated that his supplier was not at home. On that same day the investigators approached Kevin Blackburn to inquire as to whether he could get them cocaine or marijuana. In response thereto, Blackburn stated that he had been on a "three day buzz" and that there were no drugs available at this time. The term "three day buzz" is a slang term which is generally understood to mean a narcotics-induced euphoria. Investigator Deloach also asked Blackburn to advise him when drugs became available. On August 19, 20 and 21, 1986, Investigators Deloach and Warner returned to the licensed premises. No actual drug purchases were made on these occasions; however, the investigators had loud conversations with Steve Anderson relative to the purchase of cocaine and marijuana. On August 22, 1986, Investigators Deloach and Warner returned to the licensed premises. On this occasion, the licensee and her son were sitting at the bar, facing the investigators, in the vicinity of a patron known as "Jackie Francesia". While at the bar, Investigator Deloach asked Jackie Francesia if he could purchase some cocaine. In response, Jackie Francesia sold Investigator Deloach one-half (1/2) gram of cocaine for $35. This transaction occurred in plain view and took place in an open and notorious manner, some fifteen feet from the licensee and her son. On August 25, 1986, Investigators Deloach and Warner returned to the licensed premises. Investigator Warner met with band member Steve Anderson to inquire as to the availability of marijuana. Anderson stated that he did not have any but that he would check in the bar for some. Anderson then left the immediate vicinity of Investigator Warner and approached Kevin Blackburn, who was tending bar. Investigator Warner observed Kevin Blackburn talking with Anderson and pointing out another patron, who was seated in the premises. Anderson went directly to that patron and spoke with the patron. Shortly thereafter, Anderson returned to Investigator Warner and told her that the cocaine was available but that his motorcycle was not running. Also on this date, the investigators observed three patrons standing just outside the main entrance of the licensed premises, smoking marijuana. On August 26, 1986, Investigators Deloach and Warner returned to the licensed premises. On this occasion, Kevin Blackburn was working behind the bar in a managerial capacity. The investigators met with Jackie Francesia to inquire as to the availability of cocaine. In response, Francesia handed Investigator Warner one-half gram of cocaine in exchange for $35. This transaction occurred in plain view and took place in an open and notorious manner in the licensed premises. After the cocaine delivery, Investigator Deloach approached Investigator Warner at the bar of the licensed premises and held out his wallet in full view of several patrons and Kevin Blackburn. Investigator Warner removed the cocaine from her pants pocket, held it up in plain view of Kevin Blackburn and placed it in Investigator Deloach's wallet. Subsequently, Investigator Deloach approached Kevin Blackburn and told him that he had just purchased cocaine from Jackie Francesia at the bar. In response thereto, Kevin Blackburn voiced his approval of the narcotics transaction occurring on the licensed premises. On August 28, 1986, Investigators Deloach and Warner returned to the licensed premises. Again, Kevin Blackburn was tending bar. The investigators approached Steve Anderson in the presence of Kevin Blackburn to inquire as to the availability of cocaine. Anderson stated that a patron known as "Miguel Vasguez" had some in his possession. Investigator Deloach then gave Anderson $40 for the purchase of cocaine. Anderson left the immediate vicinity of the investigators and returned shortly thereafter with one-half gram of cocaine. He then handed the cocaine to Investigator Deloach. This transaction occurred in plain view and took place in an open and notorious manner on the licensed premises. After taking delivery of the cocaine, Investigator Deloach again approached Kevin Blackburn and told him that he had just purchased cocaine in the licensed premises. Kevin Blackburn again acknowledged his approval of the narcotics transaction. In addition to being the licensee of record in the instant case, Lillian Marie Reynolds operates another premises which has an alcoholic beverage license and at which business she spent almost all of her time. Sometime prior to the commencement of "Operation Sabre", Reynolds turned over the management of Diamond Lil's to her son Kevin Blackburn. Although Reynolds was only present during one of the drug transactions described above, Blackburn was present during most of the others. Neither Reynolds nor Blackburn voiced any disapproval of the drug transactions taking place in Diamond Lil's. Furthermore, Reynolds admitted she had given no specific directions to her son regarding prohibiting drug use or transactions in the premises even though she had told the Sheriff prior to "Operation Sabre" that drug dealing might be taking place in Diamond Lil's.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained within the Notice to Show Cause and assessing a civil penalty against Respondent in the amount of $5,000. DONE and RECOMMENDED this 4th day of December, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2095 Petitioner's Proposed Findings of Fact numbered 1-14 and the first two sentences of finding numbered 15 have been adopted verbatim or in substance in this Recommended Order. The remainder of finding numbered 15, however, has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. Respondent's Proposed Findings of Fact numbered 1, 2, and 4-7 have been adopted in this Recommended Order either verbatim or in substance. The remainder of Respondent's Proposed Findings of Fact have been rejected as follows: 3 and 9 as being immaterial to the issues under consideration herein; 12 as being contrary to the evidence in this cause; and 8, 10, 11, and 13 as not being supported by the evidence herein. COPIES FURNISHED: Daniel Bosanko, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 John P. Rotolo, Esquire 627 Whitehead Street Key West, Florida 33040 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue This case concerns the issue of whether Respondent's beverage license should be suspended, revoked or otherwise disciplined for permitting prostitution activity on his licensed premises. At the formal hearing the Petitioner called as witnesses John Harris, Kelvin Davis, Carlos Bauxalli, Lewis Terminello, Hugo Gomez, Louis Viglione, Keith Bernard Hamilton, and Alfonso Scott Julious. Respondent called as witnesses Isaac Dweck, Gary Arthur, Irene Madden, Collins Jones, Mary Scott, Debbie Heenan, Judy Pearson, Joe E. Clements, Cecil Rolle, and the Respondent himself, Eddie Lee Pittman. Petitioner offered and had admitted a videotape which was viewed during the hearing. Respondent offered and had admitted one exhibit. Petitioner also offered a composite exhibit containing police reports relating to the licensed premises for the years 1981 and 1982. That composite exhibit was admitted as hearsay to corroborate the testimony of the police officers relating to the reputation of the licensed premises. These police records were of very limited probative value and no finding of fact was based upon these records. Neither party submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer.
Findings Of Fact At all times material to this proceeding the Respondent, Eddie Lee Pittman, was the holder of beverage license No. 23-371, Series 2-COP. The license is issued to the licensed premises at 1772 N.W. 79th Street, Miami, Dade County, Florida, and was originally issued to Respondent on October 6, 1965. On the evening of March 22, 1983, Beverage Officer Kelvin Davis visited the licensed premises, Eddie's Dive Inn, in an undercover capacity to investigate possible prostitution activity in the licensed premises. Officer Davis was accompanied by Beverage Officer Eddie Bauxalli. After entering the licensed premises Officer Davis was approached by a white female named Elnora Moore who engaged him in conversation. The conversation led to a discussion of voter registration cards and Ms. Moore stated that a voter registration card could get you out of jail on a misdemeanor charge. Officer Davis asked why she needed a card for that purpose and Ms. Moore said because of solicitation. She then asked Officer Davis if he would like to be solicited and asked how much money he had. He responded that he had twenty dollars and she said that would get him a "straight." "Straight" is slang or street language for sexual intercourse. He agreed to the price but told her he also had a friend (Officer Bauxalli). Ms. Moore offered to service both men for $100. Officer Davis and Officer Bauxalli agreed to this offer and the three of them prepared to leave. The conversation between Ms. Moore and Officer Davis took place next to the bar where the officers were seated. This was approximately three to five feet from the cash register where the bartender on duty was working. The conversation took place in a normal tone of voice. As Officers Davis and Bauxalli and Ms. Moore began to leave, a white female named Peggy Schultz yelled across the bar to Officer Bauxalli and asked where he was going. Officer Bauxalli yelled back that he was going to have a good time. In response, Ms. Schultz yelled back "How can you have a good time without a date?" Officer Bauxalli responded that he would figure something out. At this point Ms. Schultz walked over to Officer Bauxalli. Ms. Schultz asked Officer Bauxalli if he wanted a "date" and he asked what is a "date." She responded that a "date" is a "straight" for $20 or a "straight" and a "blow job" for $25. He agreed to a "date" and Ms. Schultz then told him to drive around to the back and she and Ms. Moore would meet them at the back door. She also stated that the owner did not like the girls to go out the front door. Officers Bauxalli and Davis then left the bar, drove around to the back door of the licensed premises and picked up Ms. Moore and Ms. Schultz, who were waiting just inside the back door of the lounge. While Officers Bauxalli and Davis were in the licensed premises, the bar was pretty crowded and there was a lot of noise from people talking. At the time Ms. Schultz solicited Officer Bauxalli, she spoke in a normal tone of voice while they stood approximately four or five feet from the cash register on the bar. Ms. Schultz was dressed in a low-cut blue silky dress that was made of a material which you could easily see through. She was wearing only panties underneath the dress. The owner, Mr. Pittman, was observed in the licensed premises on the evening of March 22, but there was no evidence that he observed or overheard any of the discussions between the two beverage officers and Ms. Schultz and Ms. Moore. On the evening of September 17, 1983, at approximate1y. 10:A5 p.m., Beverage Officer Louis J. Terminello went to the licensed premises in an undercover capacity. Immediately upon entering the licensed premises he was approached by a white female named Michelle Orfino. The bar was pretty crowded and there were a number of females in the bar and poolroom area who by their dress appeared to be prostitutes. These women were mingling with the men at the bar and in the poolroom area. A number of couples were exiting through the back entrance. When Ms. Orfino approached Officer Terminello, she walked up to him and asked if he was looking for a "date." He asked her what a "date" was and she said "a blow job." She then asked if he wanted one and Officer Terminello responded "yes." She told him the price would be $20 plus $5 for the room. As they had been talking Officer Terminello, accompanied by Ms. Orfino, walked into the poolroom area. After agreeing to the price, Officer Terminello took Ms. Orfino by the arm and started to walk out the front door of the lounge. She stopped him and said that they had to use the back door because Eddie does not allow them to leave through the front door. She then told him to drive around back and Officer Terminello responded that his car was just outside the back door. She then walked with him out the back entrance and into the parking lot. As they walked to his car Officer Terminello observed the Respondent, Eddie Pittman, in the parking lot. After driving away, Officer Terminello placed Ms. Orfino under arrest. Ms. Orfino was dressed in a very low-cut latex body suit. For at least three nights prior to September 17, Officer Terminello, while on surveillance, had observed a continuous pattern of a patron entering the bar, coming back out and driving his car to the rear entrance. A woman would then come out the back door, get in the car and they would drive away. Twenty minutes or so later the car would come back and the girl would get out and go back in. After the arrest of September 17, Officer Terminello returned to the bar in the early morning hours of September 18 to arrest two other women for prostitution. The Respondent had not been advised of the arrests on September 17. On the evening of September 15, 1983, Beverage Officer Louis Viglione went to the licensed premises, Eddie's Dive Inn. After entering the licensed premises he took a seat at the bar near the rear entrance. Shortly after entering, he was joined by two black females named Veronica and Angie. He purchased a beer for each of the two women and the three of them engaged in conversation about good times, good loving, and Pink House. The Pink House is a boarding house in the area where the licensed premises is located and is used by prostitutes for "dates." A "date" is a slang or street term used commonly by prostitutes to refer to sexual intercourse or other sexual acts for pay. During this conversation, Veronica stated that one hour with her would cost $40 or $50 and Angie stated that she charged $100 an hour. As an excuse, Officer Viglione then stated that he did not have enough money because he wanted two women at once. He remained in the lounge approximately one more hour and left. On this particular evening Veronica was wearing a short white dress and Angie was wearing a blue print dress with white stockings. Both were dressed in what Officer Viglione described as normal dress. Several other women in the lounge were dressed in a very provocative manner and appeared by their dress to be prostitutes. The lounge was approximately 3/4 full of patrons, but it was not particularly noisy or boisterous. There were also several women outside the front and rear entrances of the licensed premises who appeared to be prostitutes. The area where the licensed premises is located is an area which has a visible concentration of prostitutes and has a reputation as an area where prostitution is prevalent. At approximately 9:30 p.m. on September 16, 1983, Beverage Officer Keith Bernard Hamilton entered Eddie's Dive Inn. Upon entering the lounge, Officer Hamilton took a seat at the west end of the bar. There were approximately 40 or 50 male patrons in the lounge and at least 30 women. The women were scantily dressed in very revealing clothes and were observed by Officer Hamilton to be moving around the bar stopping and talking with the men. Several of the women left the bar after talking to one of the men who also left the bar. While seated at the bar, Officer Hamilton was approached by a young black female named Anna. Anna had been talking to a white male seated next to Officer Hamilton. She asked Officer Hamilton what he was interested in tonight. He asked what she had and she asked if he wanted to fuck. She also stated that for $35 plus $5 for the room she would give him a "suck and fuck." He said he would wait for a while and Anna left but returned several times during the evening. After Anna left, another woman walked up to Officer Hamilton and asked if he dated. He was short with her and she moved over and began talking to the white male seated next to him. A few minutes later, Officer Hamilton went to the bathroom and was stopped by a black female named Carol Lawrence. Ms. Lawrence stated that she needed money and asked if he could help her out. Officer Hamilton asked what did she have and Ms. Lawrence responded "a suck and fuck for $35." Officer Hamilton agreed to this but said he wanted to wait a while. She then left, but approached him at least three more times that evening. On the evening of September 16, 1983, there were three security guards at the licensed premises. They primarily remained outside where they regulated the crowd outside the lounge. One of the guards told one of the females that she shouldn't leave with a guy but should wait inside the rear door. The guard did not object to the woman and man leaving in the man's car. On this particular evening, the Respondent was present at the licensed premises until approximately 11:00 p.m. He was in and out of his office during the course of the evening. On September 17, 1983, at approximately 9:30 p.m. Officer Hamilton returned to the licensed premises, Eddie's Dive Inn. When Officer Hamilton entered the lounge, the Respondent was seated at the bar. The activity in the bar was about the same as the night of September 16, and there was a smaller crowd. There were about 20 women in the bar. These women were walking around the bar talking to the men. There was a man seated next to Mr. Pittman who was being kissed by one of the women. After kissing the man she moved on and began talking to another male patron. Shortly after entering the lounge one of the women in the lounge looked at Officer Hamilton and winked. Later, when Officer Hamilton was in the rear of the lounge near the bathrooms, be observed this same woman standing near the rear entrance. He asked her where she was going and she responded that she would be back. She then offered him a "suck and fuck" for $20 plus the cost of the room. As she walked out the rear entrance Officer Hamilton agreed to the offer. That same evening Officer Hamilton was again approached by Anna whom he had met the previous evening. She asked if he was ready and again told him the price of a "suck and fuck." He agreed and she told him to leave out the front door and she would wait around back. Officer Hamilton left the lounge and drove his car to the rear entrance where Anna was waiting just inside the screened door of the back entrance. On the evening of September 15, 1983, at approximately 9:15 p.m., Beverage Officer Alfonso Scott Julious entered the licensed premises. There were several men seated inside the bar and several women were walking around the bar. The women were dressed casually and some were wearing short dresses which were low cut in the front. After entering the licensed premises Officer Julious observed women from time to time leave the bar with a man and then come back. Each of the women exited through the rear door. At approximately 9:45 p.m. Officer Julious was approached by a white female named Gail Sylvia James. She asked if he wanted a "date" and he said what is a "date." She then said that she would "fuck him and suck him" for $30. He responded that he would be around for a while and would get back to her. Officer Julious left the lounge at approximately 10:30 p.m. During the evening Officer Julious had overheard other men being solicited and observed at least five men leave with women. On this evening Officer Julious considered the women's dress to be casual, nice dresses. Officer Julious returned to the licensed premises at approximately 9:00 p.m. on September 16, 1983. After entering the lounge he was approached by a white female named Patricia. She asked him if he wanted a "date" and he asked "what is a "date?" She then said she would fuck him for $30. Officer Julious responded that he would be around and would get back to her. Some time later in the evening Gail James, whom he had met the previous night, approached Officer Julious and asked if he was ready for a "date." She said she would go half and half, "suck and fuck" for $30. He told her he would be around for a while. Officer Julious was also approached by a woman named Mindy Jo Gelfin, who asked if he wanted a "date." He asked "What is a date?" and she responded "half and half, fuck and suck" for $40. He also did not accept this offer. Officer Julious left the licensed premises at approximately 10:45 p.m. On Saturday, September 17, 1983, Officer Julious returned to the licensed premises at approximately 9:05 p.m. The Respondent, Eddie Lee Pittman, was in the lounge. Immediately after entering the licensed premises, Officer Julious was approached by Mindy Gelfin, who asked if he was ready for a "date." Officer Julious stated that he would be around all night and Mindy said she would come back. Later, Mindy returned and asked if he was ready and he responded "yes." He asked if they could go to the Holiday Inn and she asked if he was a cop. Officer Julious said "Do I look like a cop?" She then asked if she could pat him down. He said "yes" and she patted him down. She then said that she wanted to go in a friend's car. She borrowed the car and drove to the Holiday Inn where she was arrested. At the time of her arrest Mindy Jo Gelfin was residing with Collins Winston Jones and his girlfriend. At the time of the final hearing, Mindy Gelfin was continuing to live at Mr. Jones' residence. Mr. Jones' girlfriend had allowed her to move in. Mr. Jones is the manager of Eddie's Dive Inn. On September 29, 1983, Detective Hugo Gomez of the Metropolitan Dade County Police Department went to the licensed premises, Eddie's Dive Inn. Detective Gomez was accompanied by Detectives Manny Gonzalez and Ray Gonzalez. Detective Gomez stood at the west end of the bar and his two partners sat at the bar next to him. After they ordered a beer, they were approached by a white female named Catrina Gibides. She sat down between the two officers who were seated. She asked what they were doing and told Detective Gomez he looked like a cop. He then pulled up his pants legs to show he was wearing no socks and she said "you can't be a cop" and grabbed his groin. She then began playing with Manny Gonzalez's leg and asked if they wanted a "date." She was wearing a very loose chiffon type outfit and her breasts were barely covered. The officers who were seated had been pretending not to speak English and Ms. Gibides asked Detective Gomez to ask Manny Gonzales if he wanted to go across the street to a motel with her. She said that she would perform intercourse and fellatio for $25 plus $5. She then called over another white female named Lisa Brown, who also began talking about going across the street to a motel. Lisa Brown said her price was $25 plus $5 for the room. They then discussed going in different cars. During these conversations the bar was crowded and Eddie Pittman was in the lounge approximately 8 to 10 feet from where the officers were located. It was pretty loud in the bar. There were also barmaids working behind the bar. Isaac Dweck is a regular patron of Eddie's Dive Inn. He goes there primarily on Sunday afternoons to watch football and shoot pool. He is almost never in the licensed premises after 9:00 p.m. and averages going to the lounge four or five times a month. He has never been solicited for prostitution in the lounge and has never overheard someone else being solicited. Gary Arthur goes to Eddie's Dive Inn two or three times a week and generally leaves some time between 7:30 and 9:00 p.m. Once or twice he has stayed until 11:00 or 12:00 p.m. He has never been solicited for prostitution and has never overheard anyone else being solicited. He has been going to Eddie's Dive Inn for five or six years. The Respondent has a policy against drugs, fighting, solicitation, and profanity and also has a dress code. He employs 11 full-time employees at the lounge and three or four of these employees are security guards who work at front and back doors. The Respondent has a closed circuit television system with cameras on the cash register and pool room area. The screen is in Respondent's office. Over the past 12 years the manager, Collins Jones, has barred 12 or 13 women from the bar after he heard them soliciting in the bar. In the twenty years he has operated Eddie's Dive Inn, the Respondent has barred approximately 20 women from coming into the licensed premises because of prostitution. Once the women are arrested for prostitution, they are barred from the premises. There are signs posted in the bar prohibiting soliciting. Irene Madden works as a barmaid at Eddie's Dive Inn. She has been instructed to not serve known prostitutes and that if she heard someone soliciting she should diplomatically ask them to not do that and inform Mr. Pittman or the manager. Mary Scott works as a barmaid at Eddie's Dive Inn. She has heard women solicit in the lounge for prostitution. She does not have the authority to ask someone who solicits for prostitution to leave the premises. She does have authority to ask people to leave who are in violation of the dress code. In September, 1972, the Respondent was charged in an administrative proceeding against his license with permitting prostitution on the licensed premises. He was also charged criminally with permitting prostitution. Respondent paid a $350 administrative fine and his license was placed on probation for the remainder of the license year. He pleaded guilty to the criminal charge.
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 ninety (90) days. DONE AND ENTERED this 9th day of November, 1983, at 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 9th day of November, 1983. COPIES FURNISHED: William A. Hatch, Esquire Gary R. Rutledge, Secretary Department of Business Department of Business Regulation Regulation 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Arthur M. Garel, Esquire 40 Southwest 13th Street Miami, Florida 33130 Howard Milan Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue posed for decision herein is whether or not the Respondent's alcoholic beverage license should be suspended, revoked, or otherwise disciplined on the grounds stated in the Notice to Show Cause filed herein dated April 13, 1983.
Findings Of Fact During times material herein, The Chosen Few Motorcycle Club (herein Respondent) held alcoholic beverage License 68-629, Series 2-COP, issued in the name of Walter L. Vann and Leroy M. Allen. The premises is located at 1782 27th Street, Sarasota, Sarasota County, Florida. On April 13, 1983, the Division issued an Emergency Order of Suspension of The Chosen Few Motorcycle Club beverage license together with a Notice to Show Cause charging that employees and patrons of The Chosen Few engaged in numerous controlled substance transactions and use of controlled substances while on the licensed premises. Further, it was alleged that because of such controlled substance sales and use, the premises constituted a public nuisance. Respondent's place of business is well known to the intelligence unit of the Sarasota Police Department as a place where sales of narcotics and their use are conducted inside the premises. This knowledge has been gained from intelligence reports and investigations conducted by undercover agents during the period March 21, 1983, to April 9, 1983. (Testimony of Sarasota Police Department Sergeant Jim Fulton and Beverage Officer Keith Hamilton.) Beverage Officer Hamilton was assigned to an investigation of bars and restaurants in the area of Respondent's tavern during late March and early April, 1983. Officer Hamilton has received detailed training in the detection of controlled substances, including marijuana, and has participated in numerous drug investigations since his employment by the Division as a Beverage Officer. Officer Hamilton is a qualified narcotics investigator and is familiar with the appearance and smell of cocaine and marijuana. At approximately 11:20 p.m. on March 21, 1983, Officer Hamilton entered The Chosen Few and ordered a beer. Officer Hamilton struck up a conversation with an individual who identified himself as a part-time employee of The Chosen Few and went by the street name of "Freak." Freak openly sold to Officer Hamilton a capsule which was later identified by the Florida Department of Law Enforcement (FDLE) crime laboratory as cocaine. Freak transferred the capsule of cocaine in an overt manner from a brown medicine bottle which he had on his person and which contained numerous such capsules to c Officer Hamilton in exchange for $10.00. The item was properly bagged, sealed and receipted by Officer Hamilton, and thereafter submitted to the FDLE crime laboratory. Analyst Anthony Keith Zibernia identified the capsule as cocaine. Prior to analyzing the substance, Analyst Zibernia noted that that capsule, as with all other evidence which comes into the FDLE crime laboratory, was properly taped/sealed and tagged upon submission to the laboratory. (Petitioner's Exhibit 2.) While on the licensed premises of The Chosen Few on March 21, 1983, Officer Hamilton observed the open smoking of marijuana by patrons. Officer Hamilton based his testimony on the aroma of the substance being smoked by the patrons and by the manner in which the cigarettes were being handled and smoked by the patrons. On March 22, 1983, at approximately 9:00 p.m. Officer Hamilton returned to the licensed premises of The Chosen Few and inquired of the on-duty bartender, who identified himself as "Mose," as to the availability of marijuana. Mose advised Officer Hamilton that he could obtain such substance for him and Officer Hamilton in turn gave Mose a $10.00 bill. Mose left from the bar area and went among the patrons of the establishment. Upon his return, he handed to Officer Hamilton, from behind the bar, a manila envelope containing a substance, later analyzed by the FDLE crime laboratory and found to contain cannabis, together with $4.00 in change. The substance purchased from Mose, which Officer Hamilton bagged, sealed, and receipted, was submitted to the FDLE crime laboratory. (Petitioner's Exhibit 1 and testimony of Analyst Anthony Zibernia) Officer Hamilton returned to The Chosen Few premises at approximately 8:00 p.m. on the evening of March 23, 1983. At that time, he inquired of the on-duty barmaid who was then serving alcoholic beverages to patrons as to the availability of marijuana. That barmaid pointed out to Officer Hamilton an individual among the patrons from whom marijuana could be obtained. Officer Hamilton called the patron pointed out by the barmaid over to the bar and inquired as to the availability of marijuana. That individual advised that he had some for sale and thereupon sold, in an overt transaction at the bar, a manila envelope, containing what was later identified by the FDLE crime laboratory as marijuana, in exchange for $10.00. The on-duty barmaid had an unobstructed view of the entire transaction. Following the purchase of the marijuana, Officer Hamilton then purchased from the barmaid a pack of rolling paper and proceeded to roll one marijuana cigarette on the bar in front of the barmaid without objection from her. (Petitioner's Exhibit 3) Officer Hamilton next returned to the licensed premises of The Chosen Few on the afternoon of March 24, 1983, at approximately 3:30 p.m. Officer Hamilton approached the bar and inquired of the on-duty barmaid who was working behind the bar as to the availability of marijuana. She advised Officer Hamilton to check with patrons at the pool table for marijuana. Officer Hamilton, as instructed, inquired as to the availability of marijuana from the patrons and successfully purchased from a patron, in an open transaction, a substance in a manila envelope, later identified by the FDLE crime laboratory as being marijuana, in exchange for $6.00. The barmaid had an unobstructed view of this transaction. Immediately upon the purchase by Officer Hamilton, he observed the barmaid rolling a marijuana cigarette on the bar which she proceeded thereafter to smoke. Based on the manner in which the substance was rolled and the way in which it was smoked, Officer Hamilton concluded that it was, in fact, marijuana. The item purchased by Officer Hamilton on the afternoon of March 24, 1983, was properly bagged, sealed, receipted and, following the submission to the FDLE crime laboratory, was determined by Analyst Anthony Zibernia to contain cannabis. (Petitioner's Exhibit 4.) Officer Hamilton returned to the licensed premises of The Chosen Few at approximately 9:00 p.m. on March 24, 1983, and again observed Mose serving as a bartender. At approximately 9:00 p.m. Officer Hamilton inquired of Mose as to the availability of marijuana. Mose advised he would check and Officer Hamilton gave him $10.00. Mose exited from behind the bar and returned approximately two minutes later to the area behind the bar , transferred to Officer Hamilton over the top of the bar a manila envelope containing a substance, later identified by Analyst Zibernia to be marijuana, with $4.00 in change. The transaction was made in an open manner add the substance purchased by Officer Hamilton was properly bagged, sealed, receipted and submitted to the FDLE crime laboratory. As stated, it was analyzed and found by Analyst Zibernia to contain cannabis. (Petitioner's Exhibit 5) While on the premises of The Chosen Few on the evening of March 24, Officer Hamilton again observed the use of marijuana by patrons on the premises. Such use by the patrons was completely open, without any attempt on the part of the patrons to hide such use. Officer Hamilton next returned to the licensed premises of The Chosen Few on the evening of April 9, 1983 While seated at the bar he inquired of a patron as to the availability of marijuana. The negotiations for the purchase of marijuana were made at the bar in front of the on-duty bartender, who was later identified by Officer Hamilton as one of the licensees, Leroy Allen. The negotiations were carried on in a normal conversational tone immediately in front of Allen. Officer Hamilton purchased from a patron, in an open manner, one clear baggie, later analyzed by the FDLE crime laboratory and found to contain cannabis, in exchange for $6.00. The substance was bagged, sealed, receipted and submitted to the FDLE crime laboratory for analysis by Analyst Anthony Zibernia. (Petitioner's Exhibit 6) Respondent's Defense Respondent presented the testimony of licensees Walter Vann and Leroy Allen. Both licensees testified that they instructed their employees that no drugs were to be used on the premises and instructed those patrons who were observed using marijuana to leave the premises. Licensee Allen could not recall any discussion of marijuana sales by Officer Hamilton, nor could he recall any drugs ever being sold on the premises. Licensee Allen and Mose Williams stated that they "cannot stand the smell of marijuana." Mose Williams denied making any sales of marijuana to Officer Hamilton and "throws out patrons he finds using marijuana." Additionally, like bartender Mose Williams, barmaid Gloria Williams also claims to throw out any patrons she observes using marijuana and denied assisting Officer Hamilton, or any patron in their effort to purchase marijuana at The Chosen Few Motorcycle Club. Rebuttal Petitioner presented the testimony of confidential informant, Harold Sutton. Informant Sutton accompanied Officer Hamilton at The Chosen Few and observed the occasions when Officer Hamilton purchased marijuana from Mose Williams and the on-duty barmaid. Informant Sutton also observed the on-duty barmaid roll and smoke a marijuana cigarette at the bar on March 24, 1983.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's alcoholic beverage license No. 68-629, Series 2-COP, be suspended for a period of one hundred eighty (180) days and that Respondent pay a fine of two hundred fifty dollars ($250.00) for each of seven (7) violations alleged in the Notice to Show Cause filed herein dated April 13, 1983. RECOMMENDED , this 23rd day of June, 1983, at Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1983.
Findings Of Fact Respondents hold alcoholic beverage license number 60- 0122, series 2- COP, and do business at 704 South Military Trail, West Palm Beach under the name of The Brass Bull. Respondents have operated The Brass Bull for six years without any complaints from law enforcement agencies until the execution of a search warrant on the premises on November 29, 1994. On September 12, 1984 the Petitioner and the Palm Beach County Sheriff's Office began an investigation of The Brass Bull and met with a confidential informant, hereinafter referred to as CI, who was employed at the time as a dancer at The Brass Bull. The CI agreed to make introductions for law enforcement officers to employees on the premises and was paid $150 on November 26, 1964 for making these introductions. The CI had been placed on probation in July, 1983 and was on probation during this investigation. The CI's husband was placed on probation on September 11, 1984. On September 14, 1984 Investigator Kenneth Goodman, Division of Alcoholic Beverages and Tobacco, and Sergeant David R. Harris, Riviera Beach Police Department, entered the licensed premises and talked with a dancer identified as "Linda" about the purchase of some marijuana. Linda gave Investigator Goodman a single marijuana cigarette analyzed as containing 260 milligrams of cannabis, but she did not have any to sell. Investigator Goodman and Sgt. Harris met another dancer on the premises, identified as "Sunrise," on September 19, 1984 and discussed their desire to purchase some cocaine. Sunrise was later identified as Dawn Birnbaum. Sgt. Harris gave Sunrise $40, she left the premises through the front door, returned in a few minutes and handed Sgt. Harris two aluminum foil packets later analyzed as containing 200 milligrams of cocaine. Investigator Goodman also purchased 100 milligrams of cocaine from Sunrise on September 19, 1984. These sales took place on the premises while other patrons were present, although Sunrise left the premises to obtain the cocaine for the sales. On September 25, 1984, Sgt. Harris entered the licensed premises with Investigator Richard Walker, Division of Alcoholic Beverages and Tobacco. Investigator Walker purchased 505 milligrams of cocaine from Sunrise who left the premises to obtain the cocaine but returned to complete the sale on the premises. Other patrons were on the premises at the time of the transaction. Investigator Goodman and Sgt. Harris were on the licensed premises on October 6, 1984 and discussed their desire to purchase cocaine with a dancer identified as Christine Flynn. They each gave Flynn $45, she left the premises, returned and handed them each a plastic baggie containing a total of 590 milligrams of cocaine. Other patrons were on the premises at the time of the transaction. On October 12, 1984, Investigator Goodman and Sgt. Harris entered the premises and met a waitress identified as April Finster. Investigator Goodman asked to buy some marijuana. She went into a back room on the premises and returned with one marijuana cigarette containing 300 milligrams of cannabis, which she gave to Investigator Goodman. On October 16, 1984, Sgt. Harris and Investigator Walker met a dancer identified as "Blondie" on the premises and discussed their desire to purchase some cocaine from Blondie. The CI was present during this discussion, took $20 from Sgt. Harris, and then left the premises with Blondie. When Blondie and the CI returned, the CI gave Sgt. Harris a plastic bag which was heat sealed and filled with 110 milligrams of cocaine. Blondie stated that she always heat sealed her bags. Later Sgt. Harris gave Blondie $100, she brought him $70 change and then went into the dressing room. When Blondie exited the dressing room she approached the CI and they approached the table where Sgt. Harris was sitting. The CI placed a book of matches on the table and Blondie told Harris the cocaine was in the book of matches. Sgt. Harris found a heat sealed plastic bag containing 135 milligrams of cocaine in the matches. There were other patrons on the premises when these transactions took place. Sgt. Harris and Investigator Walker met a dancer named "Lola" on the premises on October 30, 1984. Sgt. Harris gave Lola $80, she entered the dressing room and then returned to where Sgt. Harris was seated with a white towel around her hand. Inside the towel was a bag containing 800 milligrams of cocaine. While on the premises with Sgt. Harris on October 31, 1984, Investigator Walker gave Lola $100. She left the premises and returned with a plastic bag containing 560 milligrams of cocaine which she gave to Investigator Walker. On November 6, 1984 Investigator Goodman was on the premises with Sgt. Harris, and Investigator Goodman gave Lola $55. Lola approached a white male patron and then returned to Investigator Goodman and gave him a plastic bag containing 400 milligrams of cocaine. On November 20, 1984 Investigator Goodman was on the premises with Sgt. Harris. Lola approached Investigator Goodman and asked him if he wanted to buy some cocaine. He gave her $50, she left the premises and returned with a bag containing 300 milligrams of cocaine which she gave to Investigator Goodman. Other patrons were on the premises at the time of the transaction. Investigator Goodman and Sgt. Harris were also on the licensed premises on September 28, October 9 and 10, November 1 and 5. On each occasion they discussed the purchase of controlled substances as defined in Section 893.03, F.S., with Respondents' employees who were on the premises at the time of these discussions. No actual transactions took place on these dates. In brief summary of the foregoing, during the period of September 14 to November 20, 1984, transactions involving the sale of a total of 3.7 grams of cocaine and gifts of 560 milligrams of cannabis took place at The Brass Bull between Respondents' employees and Investigators Goodman and Walker, and Sgt. Harris. There were also five occasions when the purchase of controlled substances was discussed with Respondents' employees on the premises but no actual transaction took place. The CI was on the premises during most of these occasions, introducing the law enforcement officers to the various employees. The transactions usually took place while other patrons were on the premises, and included Respondents' employees passing the controlled substances on or above the table at which the officers were seated. On some occasions the employees left the premises after receiving money from the officers and returned a short time later with the controlled substance which they then gave to the officers on the premises. Respondents do not take an active role in managing The Brass Bull. They rely on a day manager and a night manager to hire, fire and discipline employees, to schedule the dancers, and to enforce the rules which are posted in the employees' dressing room. Rule 11 prohibits employees from having drugs or "liquors" on the premises, and states that anyone having these substances on the premises will be terminated immediately. Respondents never met with employees, other than their managers with whom they met or talked almost daily. Conversations and meetings with the managers were usually social, however, and generally did not involve business matters. Business meetings with the managers were held infrequently. Robert Meloche only visited the premises at 7:00 a.m. when no one else was present in order to review the prior night's receipts. At all times relevant hereto, Respondents employed various dancers on the licensed premises under the terms of an Entertainment Booking Agreement. All dancers were required to sign the booking agreement and agree to working conditions prescribed by the Respondents, including compensation arrangements, the number and color of their costumes, work hours, and the additional duties of cleaning and serving tables. Respondents also prescribed a set of seventeen (17) rules for all dancers and other employees. The above referenced individuals named Linda, Sunrise, Christine Flynn, April Finster, Blondie, Lola, and the Confidential Informant were employees of Respondents' at the licensed premises during the time relevant to this case. In making the above findings, the undersigned Hearing Officer has considered proposed findings of fact submitted by the parties pursuant to Section 120.57(1)(b)4., F.S. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings have been rejected as subordinate, cumulative, immaterial, unnecessary or not based on competent substantial evidence. Specifically, Respondents' proposed findings as to Counts 14, 15 and 16 are rejected since they are not based on competent substantial evidence and are otherwise immaterial and irrelevant.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that Petitioner enter a final order revoking Respondent's license number 60-0122, series 2-COP. DONE and ENTERED this 1st day of April, 1985 at Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of April, 1985. COPIES FURNISHED: Sandra Stockwell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Craig R. Wilson, Esquire 315 Third Street, Suite 204 West Palm Beach, Florida 33401 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issues are whether the Respondent possessed, sold, or aided and abetted in the sale of controlled substances by his employee Pamela Martin on the licensed premises and whether the licensed premises were a public nuisance contrary to Section 561.29(1), Florida Statutes.
Findings Of Fact At all times relevant to the charges in this case Bernard Jordan, the Respondent, was holder of an alcoholic beverage license number 39-597, Series 2- COP, issued to the premises known as Little Paradise, located at 3602-29th Street, Tampa, Hillsborough County, Florida. The licensed premises are located on the corner of 29th Street and 29th Avenue in Tampa, Florida. On the other corners of the intersection are located a dentist's office, a physician's office, a building containing a real estate office and the office of three attorneys. Further down the street is located a laundromat and various other businesses. A persistent drug problem existed in this vicinity on 29th Street. Alphaeus Johnson is a confidential informant who works with the City of Tampa Police Department and for George Miller, an investigator with the Division of Alcoholic Beverages and Tobacco. Mr. Johnson had worked for Miller for over five years. As an undercover informant, A1phaeus Johnson entered the licensed premises. Johnson was searched by Investigator Miller and/or Detective Ron Harrison thoroughly prior to each occasion upon which he entered the licensed premises. These searches revealed that Johnson had no money or narcotics on his person at the time he was searched. After search, on each occasion, Johnson was given funds by the officers with which to purchase controlled substances. The officers kept Johnson in view from the time he left him until the time he entered the establishment and from the time he left the establishment until the time he returned to their location. The informant was paid a flat rate per day for assisting in the investigations and his compensation was not dependent upon whether he made any narcotic purchases. On February 15, 21, 22, and March 3, 22, 23, 1983, Johnson purchased quantities of cocaine from Pamela Martin inside the licensed premises. On February 15 and 21, 1983, Johnson purchased a quantity of marijuana from a male customer inside the licensed premises upon the referral of Pamela Martin. David Hauser, a detective with the University of South Florida, entered the licensed premises during the month of March, 1983, as part of an undercover investigation. Hauser asked Jordan if Jordan would sell him cocaine or whether he would have to purchase it from Pam. Jordan told Hauser he would have to get the cocaine from Pam. When Hauser approached Pam, she responded that she did not sell drugs. No sale ever occurred between Hauser and Pam. Pamela Martin had worked for the Respondent Bernard Jordan since 1975. Jordan had hired Martin after checking her references to include that of Martin's mother, with whom he was personally acquainted. At the time Martin was hired she had not ever been charged with a crime. At that time she did not use drugs. Martin had worked for Jordan off and on at various of Jordan's licensed premises since 1975. Jordan stressed with Martin and reemphasized to her at various times during her employment that any drug involvement by her on the licensed premises would result in her immediate discharge. Jordan also stressed with Martin and his other employees that any use of controlled substances by customers on the licensed premises was prohibited and that anyone using controlled substances be required to leave. At the time in question, the licensed premises were divided roughly in two by an iron grill. Neither Martin or any other employee had access to the locked area behind the iron grill which had been used as a disco. Use of the licensed premises was restricted to the front part of the premises which contained a bar, pool table, tables for customers and rest rooms. The disco had not been used for several months before the time in question. April 6, 1983, law enforcement officers executed a search warrant on the licensed premises. At the time the warrant was served, Martin was on the premises but did not possess a key or have access to the area behind the iron grill. The investigators found a blue plastic bowl in the mens room containing residue, a marijuana cigarette in Pamela Martin's purse, a partially smoked cigarette on the floor behind the bar, and a black zipper bag containing marijuana residue in an unlocked cabinet behind the locked gate. The black zipper bag was found after the Respondent Bernard Jordan was called to the licensed premises and unlocked the area. Marijuana and cocaine are controlled substances under the laws of the State of Florida. Jordan terminated the employment of Pamela Martin on April 6, 1983. Subsequently Martin pleaded guilty to sale and delivery of cocaine and was placed on probation. After being asked by Hauser whether Hauser could purchase cocaine from him or whether Hauser should wait for Pam, Jordan hired Alton Silas to remain at the licensed premises all of the day following Hauser's approach to Jordan. Silas was to watch Martin and report to Jordan any illegal activities which he observed. Silas saw no illegal acts while he was on the premises. Jordan operates six additional licensed premises in the city of Tampa. Jordan has strict overall rules concerning the use of controlled substances on all of his licensed premises. Jordan is in each of his licensed premises daily, generally on more than one occasion. Most of Jordan's employees have worked for him for long periods and some are members of his family. Jordan's policy is to discharge any employee involved with drugs or who permits the use of drugs on the premises. Jordan has discharged three employees over the last three years for failure to follow his policies concerning drugs. The informant Johnson testified that Jordan was never in the bar during any of his visits to the licensed premises. The licensed premises are the original licensed premises open by Jordan's family in the Tampa area. Many of the customers on the licensed premises are businessmen who work in the neighborhood. A dentist whose office is located near the licensed premises testified that he routinely visited the Little Paradise between 10:00 A.M. and 1:00 or 2:00 P.M. remaining on the premises for approximately twenty minutes. He never observed any drug use or drug sale on the premises. Jordan has never had any disciplinary action taken against any of his licensed premises.
Recommendation It is recommended that the charges be dismissed and that no action be taken. DONE and ORDERED this 29th day of January, 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of January, 1985. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Charles R. Wilson, Esquire 300 North Franklin Street Tampa, Florida 33602 Gary Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issues presented for resolution in this proceeding concern whether the Respondent's alcoholic beverage licensure should be subjected to disciplinary sanctions because of alleged misconduct involving the sale and use of controlled substances on a licensed premises, more specifically delineated in the Notice to Show Cause filed in this proceeding by Petitioner.
Findings Of Fact The Respondent, JIMMIE WILLIAMS, owns the club or tavern known as the "Copa Cabana", doing business at 2901 North Haynes Street, Pensacola, Florida. That establishment holds a Series 2-COP alcoholic beverage license number 27- 00239, authorizing the sale of beer and wine on the premises. The Respondent is the sole owner of the Copa Cabana. Burnett Patterson, at times pertinent hereto, during September 1988 through February 1989, was a patrol deputy with the Okaloosa County Sheriff's Department. While a deputy with that Department, he engaged in special drug investigations. During the course of this employment, he became involved in numerous undercover operations designed to curb traffic and use of controlled substances. He thus became familiar with the appearance, properties and paraphernalia associated with crack cocaine and marijuana. On September 2, 1988, he met with Law Enforcement Investigator, Paul Blackmon, of the DABT. Investigator Blackmon asked Deputy Patterson to assist in a drug investigation of the Copa Cabana. At approximately 8:00 p.m. on that date, Deputy Patterson entered the Copa Cabana licensed premises in an undercover capacity. While in the licensed premises, inside the Copa Cabana, he observed patrons of that establishment openly smoking marijuana and crack cocaine. He observed one black male patron walking around inside the licensed premises holding a piece of crack cocaine visibly in his front teeth in order to advertise it for sale. This activity was done in the presence of the licensee/Respondent, Jimmie Williams. The undercover agent further observed numerous persons selling marijuana and cocaine inside, as well as outside the licensed premises. These persons made no attempt to conceal their illegal actions. It has not been demonstrated who owned or controlled the grounds immediately outside the door of the licensed premises. On September 16, 1988, at approximately 8:15 p.m., Deputy Patterson again entered the licensed premised in an undercover capacity. Upon entering the licensed premises, he observed 15 to 20 patrons inside and observed the Respondent working at the bar. Deputy Patterson went to the restroom inside the Copa Cabana and observed two black males cutting crack cocaine into small pieces, mixing them with marijuana, and rolling the resulting material into cigarettes or "joints" for smoking. Deputy Patterson purchased one piece of crack cocaine for $20.00 from a patron known as William Barker while inside the restroom. While inside the licensed premises, Deputy Patterson observed patrons openly smoking crack cocaine and marijuana. He was approached by other patrons, who asked if he wanted to purchase controlled substances. The substance purchased was analyzed and tested positive for cocaine. On September 19, 1988, at approximately 7:40 p.m., Deputy Patterson again entered the licensed premises in an undercover capacity. Upon entering, he made contact with patron, Jerry Green, who was accompanied by a patron known as "Killer." Deputy Patterson purchased one "baggie" of marijuana for $10.00 from "Killer." This transaction, along with the open smoking of marijuana, took place in the presence of the Respondent. Deputy Patterson also observed numerous controlled substance transactions taking place outside and near the entrance of the licensed premises. The substance he purchased was analyzed and proved to be marijuana. On September 24, 1988, at approximately 3:30 p.m., Deputy Patterson again entered the license's premises. He observed several patrons entering and exiting the restroom area. He entered the restroom and made contact with patron, John Butler. John Butler asked Deputy Patterson what he was looking for, and the Deputy replied "crack." Deputy Patterson was sold one piece of crack cocaine by John Butler and another unknown patron for $20.00. Deputy Patterson observed several patrons entering the restroom and purchasing crack cocaine. Jimmie Williams was inside the licensed premises during the time Deputy Patterson was present and making these observations. Deputy Patterson further observed several narcotic transactions outside the front entrance of the licensed premised. The substance purchased by Deputy Patterson was analyzed and tested as positive for the presence of cocaine. On October 8, 1988, at approximately 4:10 p.m., Deputy Patterson again entered the licensed premises in an undercover capacity. Prior to entering, he was asked by several patrons loitering near the entrance of the Copa Cabana if he wanted to purchase controlled substances. Once inside the licensed premises, he entered the restroom, where he made contact with patron, Calvin Black. Deputy Patterson purchased one piece of crack cocaine from Calvin Black for $20.00. Deputy Patterson then departed the restroom and observed patrons openly smoking marijuana while playing pool. Deputy Patterson contacted patron, Terry Boutwell, by the pool table. Terry Boutwell sold Deputy Patterson one baggie of marijuana for $10.00 at that location. Upon leaving the building, Deputy Patterson was again approached by persons outside the entrance to the Copa Cabana and asked if he wanted to purchase controlled substances. During all of the aforementioned events, including the sale of marijuana and the smoking of marijuana in the vicinity of the pool table, the Respondent was inside the licensed premises. Both the substance purchased from Calvin Black and that purchased from' Terry Boutwell were subsequently analyzed and proved to be controlled substances. On January 28, 1989, at approximately 5:00 p.m, a confidential informant, Alonzo Blackman, was designated to conduct a controlled substance purchase inside the licensed premises from the licensee, Jimmie Williams. The confidential informant was given specific instructions to buy only from Williams. Prior to departing the Sheriff's Department, he was thoroughly searched. It was determined that he had no controlled substances or money on his person. He was provided with a concealed, wireless voice transmitter. He was also given $50.00 of the Sheriff's Department's money for the purpose of purchasing crack cocaine. Subsequently, the confidential informant departed the Sheriff's Department with Deputy Gwen Salter. The pair was followed and traced by Escambia County Sheriff's Deputy Mark Shaeffer. Deputy Shaeffer was equipped with a radio receiver and monitored transmissions emitted from Alonzo Blackman's transmitter. Deputy Shaeffer observed Alonzo Blackman park behind the Copa Cabana to the rear of the building on a back street and depart Deputy Salter's vehicle. He observed Alonzo Blackman walk through the wooded area behind the Copa Cabana and disappear around the side of the building, moving toward the front of the Copa Cabana building. After Alonzo Blackman was out of sight around the corner of the Copa Cabana building, Deputy Shaeffer could hear normal outdoor sounds, as well as Alonzo Blackman's footsteps through the transmitter. Shortly thereafter, he heard the sound of a juke box playing and loud voices consistent with the noises one would expect when a person entered a bar. Within two or three minutes thereafter, Deputy Schaeffer observed Alonzo Blackman come back in sight around the corner of the licensed premises and enter Deputy Salter's vehicle. Deputy Schaeffer followed the two back to the Sheriff's Department, keeping Alonzo Blackman in visual sight the entire time. When Alonzo Blackman and Deputy Salter returned to the Sheriff's Department, Alonzo Blackman presented Deputy Schaeffer with a slab of rock cocaine and no longer had the $50.00 given to him by the Sheriff's Department. Subsequently, the substance purchased was analyzed and tested positive for the presence of cocaine. The Petitioner adduced a hearsay statement from Deputy Schaeffer to the effect that Alonzo Blackman had told him that he had purchased the rock cocaine in question from the Respondent. That statement was not admitted into evidence since it was not corroborative hearsay for the purposes of Section 120.58, Florida Statutes. The hearsay statement concerning the alleged purchase from the Respondent is not corroborative of the testimony concerning the other independent events in question in this proceeding involving the sale and use of controlled substances on the licensed premises by others. The only testimony or evidence directly concerning the alleged purchase of cocaine from the Respondent was that related by confidential informant, Blackman, to Deputy Schaeffer. The only other evidence purporting to show that the Respondent sold a slab of rock cocaine was the testimony by Deputy Schaeffer revealing what he saw and heard over his radio receiver. All he saw was Alonzo Blackman passing around the side of the building aid later returning around the back corner of the building. He heard his footsteps as he passed around and presumably entered the building, judging from the change in sounds received. There was no evidence that any voices or other noises transmitted to Deputy Schaeffer's listening station consisted of the actual drug transaction and specifically that any of the voices or sounds he might have heard were those of the Respondent in conducting that transaction. Since Deputy Schaeffer's testimony, itself, does not implicate the Respondent in selling the drug, the hearsay statement of the confidential informant, Alonzo Blackman, who could not be located at the time of the hearing, cannot be admissible corroborative hearsay. Thus, it was not established that on this occasion, the slab of rock cocaine was actually purchased from the Respondent. On February 8, 1989, at approximately 5:00 p.m., Alonzo Blackman was again designated to conduct a controlled substance purchase inside the Copa Cabana from the Respondent. He was given the same specific instructions, and Deputy Schaeffer made the same visual and auditory observations as he had with regard to the alleged transaction of January 28, 989. The same factual findings apply, and are made, with regard to this transaction as were made above concerning the January 28, 1989 transaction. The alleged fact that the purchase was made from Jimmie Williams was again predicated on the hearsay statement of Blackman, which was not corroborative and was uncorroborated. It cannot be used to support a finding that the Respondent sold the cocaine in question. On February 7, 1989, at approximately 8:00 p.m., Escambia County Investigators, Tyron Wicks, Melvin Possey and J. Johnson, conducted a "routine drug sweep" of the Copa Cabana. This type of operation was a routine matter for Investigator Wicks in the six months prior to February 7, 1989. Upon entering the licensed premises, Investigator Wicks went directly to the men's restroom where he observed four patrons having a conversation while looking into a paper bag. Investigator Wicks seized the paper bag which contained nine plastic baggies of marijuana ready for distribution and charged him with possession of 20 grams of marijuana with the intent to distribute. Investigator Wicks is familiar with the smell of marijuana smoke; and during "drug sweeps" conducted in the licensed premises, estimated to be 20 or 30 such operations for the previous six months, he smelled such smoke in the licensed premises on a number of occasions. On these occasions, he had also found marijuana and crack and razor blades, as well as pipes and cans used for smoking crack, on the floor of the licensed premises. He has seen people buy drugs at the Copa Cabana while he has been present there with the Sheriff's Department Narcotics Unit during the years 1988 and 1989. Sergeant Bobby Jackson of the Narcotics Division of the Escambia County Sheriff's Department has bean a law enforcement officer for approximately 14 years. He is familiar with the smell and appearance of marijuana and crack cocaine. He has been involved in 20 to 30 raids at the licensed premises. On at least 15 occasions, officers in his party have found controlled substances. The Respondent was always present when these raids took place. On many of the raids, Sergeant Jackson smelled the odor of marijuana smoke in the licensed premises. He is certain that the Respondent was present on these occasions. During these raids, he has observed marijuana cigarette butts on the floor of the licensed premises and has often found people inside bagging marijuana. Prior to the suspension of the beverage license on February 10, 1989, Sergeant Jackson received quite a few complaints about the licensed premises; and each time he visited it, he would observe a great number of people standing around inside and outside the licensed premises. It has been quite different since the suspension of the license and the shutdown of operations at the Copa Cabana. Sergeant Jackson has received very few complaints since February 10, 1989. Sergeant Jackson, however, never received any complaints from the Respondent about drug use in the establishment. John Green is a black male, whose mother lives approximately a block from the licensed premises. He has been a friend of the Respondent for approximately 15 years. During the period of January and February of 1989, he patronized the licensed premises six days a week, every week. He would go there after work and stay until approximately 9:00 p.m. He states that he always saw the Respondent behind the bar. John Green stated that the bar was a self- service bar where patrons could get beer out of the cooler in front of the bar and pay for it at the counter. He maintained that he had never seen Deputy Patterson and that, in his opinion, marijuana smoke smells just like Kool cigarette smoke. He drinks beer every night, including the times when he patronized the Copa Cabana. He testified under oath that he had never seen anyone use drugs in the licensed premises and that on one occasion, however, he had thrown someone out of the licensed premises for using drugs. Dorothy Mouton lives approximately six miles from the Copa Cabana and works at Washington Junior High School in an administrative capacity. She knows the Respondent, who also works there as a coach. She, in the past, has stopped at the Copa Cabana to eat a snack and converse the During the period of August of 1988 to February of 1989, she went to the Copa Cabana every week. According to Ms. Mouton, the Respondent had a stool behind the bar and would get beer from the cooler for patrons who requested beer. She claimed that she was able, by her experience, to identify marijuana smoke and crack cocaine. She maintained that she never saw any drug of either sort in the licensed premises She also testified that it was her habit to depart the licensed premises every day between 6:00 p.m. and 6:30 p.m. Chris Dortch is a 27 year old black male who has known the Respondent for a long period of time. He helped the Respondent operate the Copa Cabana when he first established it. He lives approximately four blocks from the Copa Cabana. He goes to the licensed premises every day and sometimes stays until it closes. He has always observed the Respondent staying behind the bar counter while he is on duty. This witness also claimed under oath that he had never seen any cocaine or marijuana smoked in the licensed premises and had never smelled any marijuana smoke within the licensed premises. He testified that he saw police officers in the licensed premises at least ten times, but never observed any arrests. Elizabeth Freeman lives around the corner from the licensed premises and has lived there approximately four years. During the period of September of 1988 to February 10, 1989, she went to the club every day for about an hour where she would talk to Williams and play video games. She claimed that she observed Williams, on occasion, move from behind the counter into the public area of the tavern. She also testified that she has never seen any indications of drug use on the premises. Shirley Washington was in the habit of going to the club during the period of August of 1988 to February of 1989 at approximately 4:30 p.m. and generally would stay until closing, usually around 9:00 p.m. She was a member of a social group called "The Copa Cabana Queens." It was her habit, during this period of time, to drink four to five six-packs of beer each day. She is familiar with the smell of crack cocaine smoke and marijuana smoke. She testified that she had never observed any marijuana or crack cocaine within the licensed premises. She has been a friend of the Respondent for approximately 25 years. The Respondent is an instructor and coach with the Escambia County School Board. He has owned the Copa Cabana for 15 years. It is a recreation center, lounge, notion store and meeting place. He also has live entertainment and occasionally, a fashion show. His license authorizes him to sell and serve beer and wine. He is the only employee, but Ms. Washington minds the bar for him when he is temporarily away from it (in the restroom, etc.). He testified that he never observed Deputy Patterson until the day of the hearing. He testified that no drugs had ever been in the licensed premises and that he had never dealt in drugs. The testimony of Deputies Patterson and Schaeffer, Investigator Wicks, Sergeant Jackson, and Law Enforcement Investigator Ralph Kelly, to the effect that controlled substances were openly and notoriously used and sold on the premises in question, conflicts in a general sense with the testimony of Respondent's witnesses to the effect that they never saw any marijuana or crack cocaine on the premises or smelled any and so forth. This conflict in the testimony of the witnesses of the Petitioner and Respondent must be resolved by determining which are more credible. Determining the credibility of witnesses is an important and exclusive task of the fact finder Guidelines for resolving credibility issues are provided in Volume 24, Florida Jurisprudence 2nd, Sections 688-696, and grand jury instruction 2.04 on page 779 of West's Florida Criminal Laws and Rules (1989), which sets forth areas to consider in determining whether a witness is credible. Those areas include: whether the witness had an opportunity to observe and know the things about which he testifies' whether his memory seemed accurate; whether he was straight forward in his answers; whether he was interested in the result of the case at issue; whether it is consistent with other testimony and evidence adduced; and whether he has, at some different time, made an inconsistent statement from the testimony given before the court. Firstly, concerning the testimony of John Green, it can be seen that he testified to having patronized the establishment during the period of January and February of 1989 and purported never to have seen Deputy Patterson. This is not surprising since there was no testimony by the Deputy that he was in the licensed premises during those two months. Therefore, John Green would have had no opportunity to observe Deputy Patterson at the time he frequented the licensed the premises. John Green also testified that he drank beer in the licensed premises every night and, thus, could quite likely have suffered a diminution of his powers of observation as a result of drinking beer. Dorothy Mouton maintained that she went to the Copa Cabana every week during the period of August of 1988 to February of 1989. She stated that she went there between the time she got off work until 6:00 p.m. or 6:30 p.m. Her time in the licensed premises was, therefore, very limited; and everything alleged by the Petitioner's witnesses could easily have occurred without her being on the licensed premises to observe the alleged violations. Elizabeth Freeman stated that she went to the Copa Cabana for about an hour each day during the time alleged in the Notice to Show Cause. If her testimony that she saw no drugs used on the licensed premises is accepted as true that still does not resolve the problem that the amount of time that she spent on the licensed premises was quite limited. The violations testified to by the Petitioner's witnesses could have occurred during her absence from the licensed premises. Shirley Washington claimed that she was at the Copa Cabana every day from 4:30 p.m. to approximately 9:00 p.m. during the time pertinent to the charges in the Notice to Show Cause. She also testified that she would drink four to five six-packs of beer every day. That could easily diminish her powers of observation and, no doubt, did. None of the witnesses for the Respondent could describe the events of any particular day alleged in the Notice to Show Cause. Their testimony was rather of a very general nature and not date or time-specific. On the other hand, the Petitioner's witnesses were trained law enforcement officers and observers, who kept meticulous records of their participation in the events in question and who gave detailed testimony as to the time, date and circumstances of each event that took place on the licensed premises and later became the subject of the charges in the Notice to Show Cause. There is no evidence that any of the law enforcement officers were drinking or otherwise had impaired powers of observation during the pertinent times. The Respondent's witnesses' memories and resulting testimonies appeared very general at best. Concerning the issue of whether the witnesses might have some interest in how the case should be resolved, it should be pointed out that the Respondent's witnesses were all old friends of the Respondent. John Green has been a friend of the Respondent for 15 years. Dorothy Mouton is a co-worker of the Respondent's at Washington Junior High School and must be counted as a friend of the Respondent. Chris Dortch has apparently known the Respondent since he was a small child. Elizabeth Freeman has been his friend and customer for the past four years. Shirley Washington has been the Respondent's friend for 25 years. All of these people are not only friends of the Respondent, but apparently considered the Copa Cabana a sort of favorite resort or meeting place away from home and clearly wanted to continue the benefit of the close friendly relationship. The Petitioner's witnesses, on the other hand, were professional police officers, none of whom had any relationship with the Respondent or the Copa Cabana. There was no evidence that any of the officers were somehow targeting the Respondent for special prosecution efforts. It rather appears that the events which came to light, as described in their testimony and the Notice to Show Cause, were discovered through routine police operations. Further, Deputy Patterson testified concerning the issue of whether the Respondent exhibited proper diligence in supervising and maintaining surveillance over the licensed premises. He stated that when the Respondent sold' a beer, he would do so by receiving the money for the beer and then moving outside of the bar to the cooler, kept in the room near the bar, to obtain the beer and give it to the customer. The Respondent's witnesses, however, addressed this matter with differing testimony. John Green, stated that customers would get the beer themselves from the cooler and then go to the counter to pay for it. Dorothy Mouton stated that the Respondent would get the beer from the cooler himself, which required him to walk outside the area behind the bar into the area of the room, in which the bar was located, to the cooler, which would allow him to view the rear room and restroom area of the licensed premises. Chris Dortch testified that the Respondent stayed behind the counter during beer sales. Elizabeth Freeman stated that she had observed the Respondent move from behind the counter into the open area of the licensed premises in the act of getting a beer for a customer. Thus, the Respondent's witnesses' testimony as to this question was inconsistent in terms of rebutting the testimony of Deputy Patterson as to the manner in which beverages were sold by the Respondent, as that relates to the Respondent's physical position in the licensed premises and ability to see what activities transpired in the rear room, the area of the restroom entrance and the pool table. In any event, the foregoing analysis reveals that the testimony of the Petitioner's witnesses is more credible. It is concluded that that of the Respondent's witness, and the Respondent himself, show a lack of knowledge, clear memory, and consistency, at best, without reaching the question of whether any of the Respondent's witnesses deliberately falsified their testimony. Accordingly, the testimony of the Petitioner's witnesses, to the extent that it conflicts with that of the Respondent's witnesses, is accepted as more credible.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the competent, credible evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Respondent, JIMMIE WILLIAMS, d/b/a Copa Cabana, be found guilty of the offenses set forth in Counts II and III of the Notice to Show Cause. It is further recommended that Count I of the Notice to Show Cause be dismissed. It is further recommended that the alcoholic beverage license held by the Respondent be revoked and that a civil penalty of $2,000.00 be assessed against the Respondent. DONE AND ENTERED this 26th day of January, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-719 Petitioner's Proposed Findings of Fact 1.-6. Accepted. Accepted, but not as probative of the ultimate fact of the sale of rock cocaine by the Respondent, himself. Accepted, but not as probative of the ultimate fact of the sale of rock cocaine by the Respondent, himself. Accepted. Accepted. Accepted, but not as probative of any material issue presented for adjudication. 12.-16. Accepted, in that these proposed findings of fact describe the testimony of these witnesses. However, these witnesses have been determined to be not credible. 17. Accepted, to the extent that it is arc accurate description of the Respondent's testimony. Respondent's Proposed Findings of Fact 1.-4. Accepted. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and as not Entirely in accordance with the clear and convincing evidence. 7.-9. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and hot in accordance with the clear and convincing evidence. Rejected, as not materially dispositive of the issues presented. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and not, itself, materially dispositive. Rejected, as not, .in itself, materially dispositive. Accepted, in part, but the evidence in this case does not delineate the extent of the premises owned or controlled by the Respondent, and to that extent, it is rejected. Rejected, as subordinate to tide Hearing Officer's findings of fact on the subject matter and as to it's purported material import. Rejected, as to its material import in relation to the remainder of Deputy Patterson's testimony. Rejected, as contrary to the clear and convincing evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and not in accordance with the clear and convincing evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and not being an accurate reflection of the overall sense of the witnesses' testimonies. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as being contrary to the greater weight of the clear and convincing evidence. Accepted, but not, itself, dispositive of material issues presented, except to the extent that it has not been proven that the Respondent, himself, offered any drugs for sale. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and as not being, itself, dispositive of material issues presented. Rejected, as immaterial. Even if this is true, it does not overcome proof that the Copa Cabana club's operations constitute a nuisance. COPIES FURNISHED: Harry Hooper, Esq. Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Leo A. Thomas, Esq. Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. P.O. Box 12308 Pensacola, FL 32581 Leonard Ivey, Director Department Of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000
The Issue Whether the licensee fostered, condoned and/or negligently overlooked trafficking in and use of illegal narcotics and controlled substances on or about the licensed premises, failed to exercise due diligence in supervising its employees; and whether the licensed premises constitute a public nuisance as defined in Section 823.10, Florida Statutes.
Findings Of Fact At all times relevant hereto, Chessor & McIntire, Inc., held alcoholic beverage license number 63-00525, series 4-COP, for a licensed premises known as Barry's II, located at Highway 92 and Fairway Avenue, Lakeland, Florida. Barry McIntire owns 50 percent of the stock and is president of the corporation. Richard Chessor owns the other 50 percent of the stock. Following receipt of complaints that Barry's II was the site of illegal drug activities, the Division of Alcoholic Beverages and Tobacco contacted the Polk County sheriff's Office; and a joint undercover investigation was instituted. This investigation started in May 1990 and ended on September 14, 1990. DABT agents entered Barry's II (the bar) on the evening of May 29, 1990, and during the early morning hours of May 30, 1990 agent West purchased a quarter gram of cocaine from a female patron of the bar. The purchase took place inside the premises. Barry McIntire was seated at his usual place at the bar some 15 feet from the end of the bar where the transaction occurred. Apparently, it was after this purchase that DABT contacted the Sheriff's Office, and the joint investigation commenced. Undercover activities in the bar picked up in August 1990 when special agent Moore of the Polk County Sheriff's Department became a frequent visitor in the bar. Deputy Sheriff Moore first entered the bar August 16, 1990 with DABT agent Green and a confidential informant (CI). On this date, Moore purchased methamphetamine (crank) from an employee, Robert Hollis (Bob) who worked as bouncer at the bar. This transaction occurred in the men's room on the licensed premises. On August 21, 1990, Moore again entered the licensed premises and was approached by employee Bob who inquired if he was interested in purchasing crank, and when Moore replied in the affirmative, Bob introduced Moore to Rick, a former employee of the bar, who sold Moore crank. This transaction took place just outside the bar in the parking lot. Later this same evening, Rick again sold crank to Moore with the transaction taking place in the parking lot. On August 22, 23, 24, 28, and September 4, Rick sold crank to Moore with the contact made inside the bar and the transaction occurring in the parking lot. On August 23, 1990, Moore was approached inside the bar by another bouncer, "Tiny", who asked if Moore had a knife he could borrow. Tiny returned shortly thereafter, returned Moore's knife and stated he just did a "bodacious line of crank", indicating about 2 inches. On August 29, 1990, Agent Green, Deputy Moore, and the CI, exited the bar to look for Rick in the parking lot. There they observed six patrons of the bar passing around a joint which each was smoking. The smoke smelled like marijuana. Later in the bar, an unidentified female patron asked Moore if he had any rolling paper so she could prepare a marijuana cigarette. Moore gave her a rolling paper. On or about September 4, 1990, while Agent Green was in the bar, he was approached by waitress Kathy who asked if he was looking for anything. When Green replied yes, Kathy left and returned a short time later from the rear of the bar. She then handed Green a small plastic bag containing crank, and Green gave her $25. On September 5, 1990, DABT Agents West and Green, and Deputy Moore, while in the bar, were told by Bob to go out back of the licensed premises. Outside, Moore found Rick who announced he had some "good weed" (marijuana) . Moore gave Rick $35 for a small bag of this marijuana. On the same date, waitress Kathy sold crank to Agent Green inside the bar; and Debbie Hollis, the ex-wife of Bob, sold crank to Moore outside the bar. On September 6, 1990, Moore was approached by waitress Julie inside the bar, and she asked if he wanted some crank. Moore replied "yes" and handed Julie $25. She returned shortly thereafter and handed Moore, who was standing near the cigarette machine, a quarter gram of crank. On the same date, Moore was twice asked by Julie if he wanted to join her in smoking marijuana in the parking lot. Moore simulated smoking the joint and retained the butts which were later determined to be marijuana. On September 8, 1990, Deputy Moore, while in the bar, was approached by Julie who inquired if he had a blade. He gave her his knife, which she returned some five minutes later and asked if he wanted any crank. Moore responded "no". Shortly before 2 a.m. the next morning, Julie gave Moore a small package of crank saying this is for the use of your knife. The same evening, September 8th, Agent Green purchased crank from an employee named Sheila who delivered it to him in a cigarette package inside the bar. On September 11, 1990, Deputy Moore was approached inside the bar by Rick. They went outside to the parking lot where Moore bought both cocaine and crank from Rick. On September 12, 1990, Agent Green approached inside the bar by employee Kathy who inquired if he wanted "any" and said she had two kinds of [crank] that night. Green later purchased one quarter gram of "white methamphetamine" from Kathy in the parking lot. On September 13, 1990, Deputy Moore followed McIntire to his office and asked McIntire if he could get Moore anything to "perk him up". McIntire told him he didn't do drugs, didn't condone drugs, but said "God bless you" when Moore departed. Following many of these transactions, the undercover agents held the packages they had purchased up to the light of the cigarette machine to examine the quantity in such a manner that could readily be seen by patrons and others in the bar. They frequently showed these baggies to waitresses who smiled with the appearance of recognizing the contents of the baggies. Robert W. Hollis (Bob) confirmed that Barry's had a policy of firing employees who sold drugs, but nobody was banned or kicked out of the bar for using drugs; and that there were too many people using drugs to kick everybody out. Hollis told Rick not to sell inside the bar, but to do his transactions outside. Barry McIntire came to the bar almost every night around 10 p.m. and stayed until closing at 2 a.m., except weekends when he came in around 8 p.m. Most of the time McIntire was seated at the bar where he could observe the patrons and employees. McIntire testified he doesn't smoke, drink or do drugs, and that he doesn't condone the use of drugs. He has a policy not to allow drugs being sold on the premises, and if employees are observed doing drugs on the premises they are fired immediately. He also testified that he walks around in the bar occasionally and also strolls outside into the parking lot. He further testified that nobody can say he doesn't know what is going on in the bar and parking lot and that drugs are everywhere. The bar was raided on September 14, 1990 by sheriff's deputies and DABT agents who also searched the premises. Several arrests were made, but no controlled substances were found on the licensed premises.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be entered finding Chessor & McIntire, d/b/a Barry's II, guilty of violating Section 561.29(1)(a) and (c), Florida Statutes, and revoking the license of Chessor & McIntire, d/b/a Barry's II, and assessing an administrative fine of $7500. ENTERED this 18th day of January, 1991, in Tallahassee, Florida. K. N. AYERS 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 18th day of January, 1990. COPIES FURNISHED: Robin Suarez, Esquire Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000 Richard D. Mars, Esquire Post Office Box 1276 Bartow, FL 33830 Joseph Sole Secretary Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000
The Issue The issues presented are the product of an administrative complaint/notice to show cause placed against Respondent by Petitioner pertaining to 19 separate allegations of possession, sale-delivery of controlled substances, within the meaning of Chapter 893, Florida Statutes. The transactions were allegedly made by agents, servants, or employees of Respondent. The activities by those individuals, i.e., agents, servants, or employees are allegedly tantamount to keeping or maintaining a public nuisance on the licensed premises, to wit: maintaining a building or place which is used fob the keening, selling, or delivery of controlled substances defined in Chapter 893, Florida Statutes. As a result of the accusations, Respondent is accused of violating Subsections 561.29(1)(a) and (c), Florida Statutes.
Findings Of Fact Respondent corporation operates a business known as the Act I Lounge, which is located at 290 Seventh Avenue and U.S. Highway 19 North, Clearwater, Pinellas County, Florida. Brewer Miller is the sole owner of the Respondent corporation and is the president of that concern. The corporation holds an alcoholic beverage license, No. 62-508, Series 4-COP issued by Petitioner allowing the sale of alcoholic beverages in the subject business premises. In the month of April, 1982, Sherie Morel, Tina Belcher, Robin Herro, Mitzi Stevens, and Chris Goodman worked in the licensed premises as dancers. These performances took place in an area in the licensed premises where a raised platform was located. The purpose of the dancing was to entertain the patrons and the dancers solicited "tips" from the patrons. Respondent corporation did not pay a salary to the dancers. The dancers performed with the permission subject to dismissal by officials within the Respondent corporation, pursuant to verbal agreements between management and performers. Brewer Miller and managers who worked at the Act I Lounge established criteria for costume requirements for the dancers; content and manner of dances performed; and frequency and length of each dance performance. The criteria were designed to avoid violation of State laws and county ordinances related to dress. The dancers could choose their costumes within those guidelines. Ordinarily, the dancers provided their own choice of music. In addition to dances performed on stage, the dancers would dance at the table of patrons within the establishment and would dance while seated on the laps of patrons. This latter performance is known as a "lap dance". The routines, performed for the benefit of individual customers, were compensated for by payment sought from those particular customers. The dancers were also entitled to discounts on alcoholic beverages purchased beyond a certain number. The effect of the arrangement which the Respondent had with the dancers was one which allowed the dancers to be compensated by patrons and the Respondent to gain the benefits of having patrons in the bar to observe the dancing and to consume alcoholic beverages. Finally, should any dancer be caught with drugs or selling drugs, she would be barred from admission to the licensed premises. In pursuit of the Respondent's drug policy in the premises, a barmaid, identified as "Donna", had been dismissed for using drugs, based upon her appearance of being under drug influence and having been found with a syringe in a napkin. This occurred in 1981. An individual associated with the bar employment identified as Pam Fletcher had been dismissed for drug related matters. Brewer Miller had dismissed one Cally Russell from employment at the Act I Lounge based upon information to the effect that she sold methaqualone; his observation of her handing something to a customer suspected of being that substance; and her failure to show whether the substance was in fact a drug. In addition, around 1:30 a.m. on April 25, 1982, the manager in the Act I Lounge had summoned the Pinellas County Sheriff's Office to remove a patron based upon the fact that the customer had been observed with drugs in the restroom area. Robin Herro, one of the dancers, was in the restroom facility at the time the customer was observed with the drugs. She did not have drugs on her person. Consequently, Miller made the judgment to fine Robin Herro as opposed to removing her from the licensed premises, with the admonition that her presence with someone using drugs on another occasion would bar her from the licensed premises in the future. Miller had also spoken to his bar managers employed at the Act I on the topic of the laws and ordinances related to the sale of alcoholic beverages, and mirrors were installed to help security surveillance activity by management. Notwithstanding those occasions in which drug usage was discovered and action taken to avoid the problem, an investigation conducted by Beverage Officers working for Petitioner in an undercover capacity in April, 1982, led to the purchase of a number of controlled substances within the meaning of Chapter 893, Florida Statutes. The purchases were made from the aforementioned dancers working in the premises in April, 1982. The dancers had been operating in the licensed premises for a period of two or three months prior to the investigation. In a related vein, Brewer Miller had told one of his bar managers at the Act I, a man named Cox, that the dancers could smoke marijuana in the public restroom because Miller did not have control over that public convenience. In the initial part of April, 1982, the agents from the Division of Alcoholic `Beverages and Tobacco began their investigation at the Respondent's licensed premises. Emphasis was placed on determining whether illicit drug sales were being conducted in the facility. Michael Freese, Beverage Officer, worked in an individual capacity. Beverage Officers Gary Hodge and Donald O'Steen worked as a team, always remaining in close proximity when in the licensed premises, except for April 16, 1982, when Hodge did not enter the bar. Respondent, in the person of its owner or other officials, was not made aware of the undercover investigation. When the officers would enter the licensed premises in April, 1982, they would find a doorman on duty and various bartenders, waitresses, and bar managers working there. Brewer Miller was also in attendance at times, which occasions will be more particularly described subsequently. On April 14, 1982, Freese entered the licensed premises at around 9:25 p.m. and spoke to dancer Sherie Morel. In the course of the conversation, Freese commented to Morel that it appeared that a drug transaction was occurring at a nearby location between dancer Chris Goodman and a white male. Morel indicated that it was a drug transaction and that Chris Goodman had cocaine which could be obtained by Morel. A discussion was then held between Morel and Freese in which Morel indicated that one-half gram of cocaine would cost $50. Morel left Freese and met with Goodman and brought back a packet containing a white powdery substance. That packet had been opened and Freese made Morel return the packet to Goodman and substitute a packet which was not opened. During this sequence, Morel licked some of the contents of the packet. The transaction took place in the licensed premises at approximately 10:45 p.m. The exchanges between Morel and Freese were made in the open. The substitute packet contained cocaine, approximately one-half gram. At the time that this transaction took place, there was no indication that Brewer Miller was in the bar. Freese returned to the licensed premises at around 9:40 p.m. on April 15, 1982, and contacted Sherie Morel. He talked about the purchase of one gram of cocaine, and Morel indicated that the cost of that cocaine would be $100. Morel obtained material from Chris Goodman which Morel gave to Freese, and which was later revealed to be cocaine in the amount of approximately one gram. The transaction took place in the licensed premises. Freese did not see the exchange of the cocaine between Goodman and Morel before Morel returned and handed the cocaine to Freese. Morel was gone approximately 20 minutes in pursuit of the transaction with Goodman and during that time, the dancers went to the dressing room area set aside for dancers. Although Freese did not see the exchange between Goodman and Morel, Morel indicated that Goodman had given her the cocaine and the circumstances establish an exchange from Goodman to Morel. While Morel and Goodman were conferring, Brewer Miller was standing within six to eight feet of that conversation. Miller was located at the bar. At around 11:15 p.m. on April 15, 1982, Freese purchased a marijuana cigarette from Morel for $5 following a conversation in which Morel told Freese she could "turn him on to marijuana". The marijuana/cannabis contained less than one gram of that controlled substance. On April 16, 1982, Freese went back to the licensed premises at around 10:00 p.m. and spoke with Morel. While dancing for Freese, Morel asked him if he liked "downers'. He told her he liked "ludes", meaning methaqualone. He also stated he was partial to cocaine. Out of this conversation, while in the licensed premises, she sold Freese two capsules of suspected valium, which was revealed to be Diazepam. There was no indication that Brewer Miller was in the licensed premises at the time of this transaction. On April 17, 1982, at around 1:15 a.m., Freese entered the licensed premises. After contacting Morel, a transaction was entered into in the licensed premises in which approximately one-half gram of cocaine was purchased from Morel for the price of $50. The cocaine was contained in a packet. At the time of the exchange of the material, Brewer Miller was located approximately 30 to 40 feet away. On April 19, 1902, Freese entered the bar at around 9:30 p.m. and spoke with Tina Belcher, another dancer in the licensed premises. Belcher had previously talked to Freese and Morel about the subject of drugs. On this occasion, Morel stated that she was going to be gone and wanted Belcher "to take care of Freese". At around 10:10 p.m., Belcher delivered cocaine to Freese in a small packet while in the licensed premises. There was no indication that Brewer Miller was in the licensed premises at the time of the exchange. On April 19, 1982, at around 9:20 p.m., Officers Hodge and O'Steen entered the licensed premises and spoke with Tina Belcher about the drug cocaine. This occurred while Helcher was seated next to Hodge and during the course of the playing of a song on the "jukebox", which song was entitled "Cocaine". At that time, Belcher stated to Hodge "I wish I had some", referring to cocaine. Hodge in turn expressed his desire to obtain cocaine. Belcher stated that she would get cocaine for Hodge. She left Hodge to obtain the drug. When she returned, she handed Hodge a package containing cigarettes, also containing a packet with approximately one-half gram of cocaine. This transaction took place in the licensed premises. Brewer Miller had been observed on the licensed premises by Hodge on the evening of April 19, 1982; however, Hodge does not recall whether Brewer Miller was there at the time that the drug transaction took place between Hodge and Belcher involving the cocaine. On April 19, 1982, Officer O'Steen spoke with Robin Herro, and she stated she could get him some "coke", meaning cocaine. A deal was made between those individuals to purchase approximately one-half gram of cocaine for the price of $50. The money was paid at around 11:45 p.m., and after leaving his location in the licensed premises, Herro returned to O'Steen and gave him the one-half gram of cocaine at around 12:07 a.m, on April 20, 1982. At the time O'Steen purchased the cocaine from Herro, Brewer Miller was in the licensed premises approximately 20 to 30 feet away from that purchase location. At around 9:20 p.m., April 20, 1982, Freese entered the licensed premises and spoke to Morel about the possible purchase of cocaine. Freese was unable to consummate the purchase and Morel indicated that she might have quaaludes to sell, meaning methaqualone. Later he told her, at around 11:10 p.m., that he would like four and paid her $3 each for those suspected methaqualones which were later revealed to be Diazepam. At the time of this transaction, there was no indication that Brewer Miller was in the licensed premises. On April 20, 1982, at approximately 8:55 p.m., O'Steen and Hodge entered the licensed premises. Hodge spoke to the dancer Belcher and at 9:45 p.m. purchased approximately one-half gram of cocaine for the price of $50 while in the licensed premises. This followed a conversation in which Belcher had indicated that she could not afford the substance but could obtain it for Hodge. On this date, Brewer Miller had been in the licensed premises; however, Hodge was unsure whether Brewer Miller was present at the time that the transaction took place between Hodge and Belcher. On April 20, 1982, during the evening hours, Officer O'Steen was engaged in a conversation with a dancer, Mitzi Stevens. She told him that she could obtain cocaine for him for a price of $50. Approximately one-half gram of cocaine was delivered to O'Steen and Stevens was paid $50. The transaction took place in the licensed premises. On April 23, 1982, Officer Freese entered the licensed premises at around 8:15 p.m. and spoke to the dancer Robin Herro. Herro danced for him and while dancing, asked him if he wanted to buy a "lude", meaning methaqualone. She stated she had ten in quantity. He told her he wanted cocaine. At around 9:45 p.m., Freese decided to purchase methaqualone and bought four tablets from Herro for a price of $12 total. The substance was determined to be methaqualone. The transaction took place in the licensed premises. There was no indication that Brewer Miller was in attendance when the transaction took place. On April 28, 1982, Freese entered the licensed premises at around 9:30 p.m. At the time, he contacted Robin Herro, and following that contact, purchased approximately one gram of cocaine from her for $100. The purchase was made in the licensed premises. Freese was seated at a table at the time the transfer took place, and Brewer Miller was at the bar area approximately 25 feet away. On April 28, 1982, Officers O'Steen and Hodge returned to the licensed premises. In the evening hours on that date, O'Steen made an arrangement with the dancer Chris Goodman to purchase one-half gram of cocaine for $50 for the benefit of himself and another half gram for $50 for Officer Hodge. The Officers each paid Goodman $50 and retrieved the cocaine from napkins found in the dancer's garterbelt. Shortly thereafter, Tina Belcher, another dancer, sat down and requested that O'Steen give her some of the cocaine. He retrieved the napkin which contained the cocaine, give it to Belcher, who left and later returned with a package containing the substance cocaine, in the amount of approximately one-half gram. Tina Belcher also requested Hodge to provide her cocaine after the transaction with Goodman. On April 29, 1982, Officer Freese entered the licensed premises at around 9:20 p.m., and after arriving, bought cocaine from Robin Herro. During the conversation to establish the sale, Herro asked Freese if he had obtained cocaine from Chris Goodman and he replied that Goodman didn't have cocaine. Herro indicated that her "connection" was in the licensed premises, and she went and sat with a man in the bar and returned with the substance. It was at the point of her return with the cocaine that the price of $50 was arrived at. The money was paid to Herro, and the substance cocaine was provided to the officer in the licensed premises. There was no indication that Brewer Miller was in the premises at that time. At around 8:55 p.m., Hodge and O'Steen entered the licensed premises on April 29, 1982. Hodge spoke to Robin Herro and she performed a dance while seated on his lap for which she charged money. A discussion was held about narcotics and she stated "the reason I didn't talk to you last night is because I had a deal going and the guy didn't want it to be known". She stated that she could obtain cocaine for Hodge from Goodman. Herro obtained cocaine for Hodge and gave it to him and he paid Goodman $50 after asking Goodman if the price was $45 or $50, and Goodman indicating the price was $50. O'Steen had talked to Chris Goodman about the purchase of one-half gram of cocaine and saw Herro give the one-half gram to Hodge after O'Steen had informed Hodge that the deal, through Goodman, had been made. O'Steen wanted Hodge to buy the cocaine since only one-half gram was available. This transaction took place in the licensed premises. At the time of this transaction, Brewer Miller was at the bar area some 10 to 15 feet away facing in the general area of the transaction. He was nearer the "jukebox", which was playing, than he was the transaction, and the music was louder than the conversation involved in the drug transaction. On April 30, 1982, Freese returned to the licensed premises in the evening. In a conversation with Chris Goodman, she stated that her "guy is not here with the stuff, meaning her supplier of cocaine. At around 11:35 p.m. Freese approached Goodman at a table where O'Steen and Hodge were also located and asked her if the "guy" had arrived. Goodman answered in the affirmative. Freese had been seated some 10 to 12 feet away from O'Steen and Hodge. Freese returned to his location on the east wall. Goodman went to the bar area and spoke with a Bill Higgins, who-was working there, and received something from him. She then went to the ladies restroom area. At that time, Miller was located at the north end-of the bar. Goodman subsequently came to Freese's table and he removed a napkin from her garterbelt and placed $100 there. The $100 payment was in exchange for a quantity of cocaine. The transaction took place in the licensed premises, and at the point of transfer between Goodman and Freese, Miller was approximately 30 feet away. On April 30, 1982, at approximately 8:55 p.m., Hodge and O'Steen entered the licensed premises and talked to Chris Goodman. She danced a "lap dance" for Hodge and charged him for it. Goodman asked O'Steen if he still wanted a "gram". O'Steen made arrangements with Goodman to purchase approximately one gram of cocaine for the price of $100 for the benefit of O'Steen and another one-half gram for Hodge for $50. The transaction took place after Goodman indicated that her contact had arrived in the licensed premises, by stating "it's here", meaning cocaine. In the transaction, Goodman handed napkins containing the cocaine to O'Steen. O'Steen kept two packets and Hodge kept one packet. The transaction occurred in the licensed premises, and the payment of $150 was made, $100 from O'Steen and $50 from Hodge. At the time the transaction took place with Goodman involving the three packets of cocaine, Brewer Miller was at the bar area near the "jukebox". On other occasions in April, 1982, Officer Hodge had pursued the investigation; however, no drugs were purchased. He was in the licensed premises on April 13, 1982, and made no purchase of drugs. On April 15, 1982, he talked to Chris Goodman about drugs in that he needed something for his sinuses, referring to cocaine. She replied that had you asked earlier, "I would have". She told him to ask again the next day and asked if he wanted a "G", meaning a gram. This conversation followed another conversation with Goodman on April 14, 1982. On April 22, 1982, Hodge spoke with Tina Belcher and asked her if she had anything for his nose,' meaning cocaine. She stated-that she did not because Chris was all out. Chris refers to Chris Goodman. Belcher indicated she had been "ripped-off" about drugs and Fred the manager had also been "ripped-off" by Sherie Morel, in that the substance they had purchased was not what they thought it would be. At the time that drug purchases were being made by Hodge and O'Steen, 10 to 25 people would be located in the bar. All officers found the lighting to be sufficient to identify people located at the other end of the premises while purchases were being made.
