The Issue This case involves the issue of whether the Respondent's beverage license should be suspended, revoked or otherwise disciplined for multiple sales of controlled substances by employees and patrons on the licensed premises. At the formal hearing, the Division of Alcoholic Beverages and Tobacco called as witnesses, Rodney A. Russ, William J. Spears, and James B. McPherson. The Respondents called as witnesses, Deborah Craven, Tina Meredith, Roxanne Hayes, Walter Humphries, Chris Poulos, Mark Willingham, Leonard Coffee, and Respondent, Fred C. Dillman, II. Petitioner offered no exhibits and Respondent offered and had admitted one exhibit. Counsel for the Petitioner and counsel for the Respondent submitted memoranda of law. Neither party submitted proposed findings of fact and conclusions of law.
Findings Of Fact At all times material to the allegations and charges in this proceeding, the Respondents F. C. Dillman, B. J. Dillman, and F. C. Dillman, Jr., were the holders of a valid beverage license number 47-196, Series 4-COP. This license is held by Respondents as a partnership and is issued to the licensed premises known as Fred's Back Door Lounge, located at 2009 West Tennessee Street, Tallahassee, Florida. On Saturday, November 12, 1983, Beverage Officer Rodney A. Russ entered the licensed premises, Fred's Back Door Lounge, in an undercover capacity. Officer Russ had been requested by his superiors to conduct an investigation of possible drug activity at the lounge. The lounge is divided into a front area and back area by partial walls and there are bars serving drinks located in both areas. The lounge has a front entrance and a back entrance. The back entrance opens out onto a deck or porch area. Upon entering the licensed premises, Officer Russ, and a friend who accompanied him, ordered drinks from a bartender named Brenda. Officer Russ and his friend conversed with Brenda and during the course of the conversation, Officer Russ asked her if she knew someone she trusted that he could get two joints from. Joint is a slang or street term for a marijuana cigarette. Brenda responded that she didn't trust anyone. She then left the area where Officer Russ was seated. Officer Russ observed Brenda approach another bartender named Kathy. Kathy handed a rolled up napkin to Brenda and Brenda then walked back over to Officer Russ and handed the napkin to him. The napkin contained 0.975 grams of marijuana, a controlled substance under Chapter 893, Florida Statutes. On this particular evening, the lounge was approximately 3/4 full and had about 75 patrons. The employees on duty included three bartenders, two doormen, and a gentleman in the package store. The conversation with Brenda about drugs occurred in a low town of voice and could not be overheard by other patrons. Brenda attempted to conceal the transfer of the marijuana and there was no effort on Officer Russ's part to make the transfer obvious to anyone else. Brenda was not paid any money for the marijuana. On November 16, 1983, Officer Russ again went to the licensed premises and on this occasion, he was accompanied by Beverage Officer, Gloria Smith. They entered the lounge at approximately 9:30 p.m. and sat at the bar when Brenda was working mixing drinks. They talked with Brenda, and Officer Russ asked her if she could get a couple of joints for him and Smith. Brenda said she would see what she could do. During this conversation, there were patrons standing 2 or 3 feet behind Officers Russ and Smith. There were no seats on either side of them at the bar. Later that evening, Brenda delivered two joints of marijuana to Officer Russ. The joints were again rolled up in a napkin which Officer Russ did not open. Officer Ruff offered to pay Brenda for the marijuana and she refused to accept payment. This evening, the lounge was almost full and had approximately 100 patrons. There were three bartenders and two doormen on duty in the lounge. The napkins received from Brenda contained two rolled marijuana cigarettes containing 1.5 grams of Marijuana. No other employee participated in the drug transfer and the conversation about drugs was in a soft, low tone of voice. Officer Russ next returned to the licensed premises on November 18, 1983. He went to the lounge along an arrived at approximately 6:40 p.m. There were about 50 patrons in the lounge and Officer Russ took a seat at the back bar where Brenda was working. Of the approximately 50 patrons in the lounge about half of the patrons were in the back area. While seated at the bar, Officer Russ met Larry Mallon. During the conversation, Officer Russ told Mallon that he was looking for some marijuana. Mallon told him he had some and took a clear plastic baggie out of his right coat pocket and handed it to Russ. The marijuana was handed to Officer Russ just below the padded area of the bar. The transfer could have been seen by other persons in the lounge but was not visible to someone behind the bar. The plastic baggie contained 1.1 grams of marijuana. Russ did not pay Mallon for the marijuana. While seated at the bar, Russ also purchased 1 gram of cocaine from Mellon for $75. Mellon took the packet of cocaine from his right coat pocket and handed it to Russ. Russ then placed $80 on the bar and Mallon picked it up and handed him $5 in change. The cocaine transaction took place just as Officer Russ was about to leave the licensed premises. There was an employee present behind the bar approximately three (3) feet from Russ and Mallon when the drugs were transferred but Russ could not say whether the employee was looking at them or not. On this particular evening, Russ had no discussions about drugs with employees of the licensed premises. He left the licensed premises at approximately 9:00 p.m. Officer Russ had never met Larry Mallon. Officer Russ, along with Officer Smith, was next in the licensed premises on November 30, 1983. They entered the lounge at approximately 8:40 p.m. and took the same two seats at the same area of the bar where they had sat on the previous visit. Brenda was working behind the bar and Russ asked her if she had any amphetamines or uppers. She said she believed she-did have some and would look and see. Later, Brenda gave Officer Russ 2 tablets which she said were speed, but testing revealed they were not a controlled substance. He also asked Brenda if she could get some marijuana for Officer Smith. Brenda told Officer Russ that someone in the bar was selling marijuana for $100 an ounce and would break it down to quarter ounce for $30. Kathy, another bartender was present during the conversation about drugs and Brenda informed her that Officer Russ and Officer Smith were looking for some pot (marijuana) Later that evening, Officer Smith met a patron named Butch. Butch joined Officers Russ and Smith at the bar after Smith asked him across the bar about possibly obtaining marijuana. Butch told them he could get them a quarter ounce of marijuana for $30. Be said he would have to leave for about ten minutes but would return. He left and returned a short time later and stated to Officer Russ that he had the marijuana but wanted to make the transfer outside the car. Butch, Officer Russ and Officer Smith went out to the parking lot where Butch sold them 2 grams of marijuana for $30. Officers Smith and Russ returned to the lounge Russ asked Brenda if Butch could be trusted and if his marijuana was any good. She said Butch was o.k. During this conversation, a patron named Jim Bob was present. This particular evening, the lounge was crowded and loud music was playing. There were seven employees on duty in the lounge that night. While in the lounge, Officer Russ observed Brenda with a handful of red tablets and also observed a motorcycle gang type individual smoking what smelled like marijuana on the deck outside the back entrance of the lounge. Officer Russ next visited the licensed premises on December 3, 1983. Russ went to the lounge alone and sat at the bar where Brenda and Kathy were working. He began conversing with Brenda and Kathy and asked Kathy if she knew anyone he could get a quarter of an ounce of marijuana from. Kathy said she would look around and twice during the evening came back to Officer Russ and told him she was still looking. During the evening, Officer Russ also spoke to Butch and asked him if he was holding any drugs. Butch said he was not but that he should check the back porch, that there was someone usually smoking marijuana back there. Officer Russ did not obtain any drugs in the licensed premises this particular evening. Accompanied by Officer Smith, Officer Russ again returned to the licensed premises on December 7, 1983. They arrived at approximately 7:30 p.m. When they arrived, Fred Dillman, Jr., was seated at the front bar talking to Brenda. Officer Russ walked up to the bar and spoke to Brenda, who in turn introduced him to Fred Dillman. Later, after Russ went to the back bar, Brenda came back to the bar and began working behind the bar. Brenda told Russ she wanted to talk to him about her cousins in Bristol. She said her cousins had some good reefer (marijuana) and that she was going over to Bristol for the weekend. She asked if Russ wanted some of the reefer. Brenda initiated this conversation about drugs. While Russ was talking with Brenda, Larry Mellon was standing nearby. After Russ talked with Brenda, Larry Mellon began talking with him about the coke he had given him. Russ told Mellon he wanted to buy some reefer and Smith kept saying she wanted to buy coke. Russ told Mellon he wanted to buy $60 worth of reefer. Mellon then left the lounge with another man and moments later Mellon returned and handed a bag of marijuana to Russ. Russ had given the $60 to Mellon at the bar. The transfer of the money was very open and at the time the transfer took place, Brenda was behind the bar nearby. The baggie which Russ received from Mellon contained 9.9 grams of marijuana. Russ did not talk with any employee other than Brenda about drugs on this particular evening. At no time during the evening did Russ observe Dillman come into the back area of the lounge where Brenda was working. On Friday, December 9, 1983 Officer Russ returned to the licensed premises. He arrived at approximately 8:00 p.m. and went to the back area of the bar where Brenda was working. Officer Russ talked with Brenda about the marijuana she was going to get in Bristol and eventually he asked her if she had any speed. Brenda then took two capsules out of her purse and handed them to Officer Russ. When she retrieved the two capsules from her purse, she placed her purse on the bar and took out medicine vials. She looked in the vials until she found what she was looking for. She handed the two capsules across the bar to Officer Russ. Officer Russ had already received his drink and when he gave her the money, the only thing he received across the bar were the two capsules. The two capsules were phentermine, a controlled substance under Chapter 893, Florida Statutes. Officer Russ gave Brenda $10 for the two capsules and she reluctantly accepted the money. When she took the money, Brenda said she would get the prescription refilled and share them with Officer Russ. On this particular evening, there were approximately 35 to 40 patrons in the lounge and 4 or 5 employees on duty. On December 14, 1983, Officers Russ and Smith went to the licensed premises. Brenda was working that evening and Officers Russ and Smith took seats at the bar where she was working. They talked with Brenda and Officer Russ asked her if she could get them something. Brenda then went over to a male patron seated at the bar across from Officers Russ and Smith and talked with him briefly. She reached into the man's right shirt pocket and took out a small amount of marijuana wrapped in a clear plastic material like Saran wrap. Brenda then walked over and handed the packet to Officer Russ. The packet contained .9 grams of marijuana. That same evening, Officer Russ talked with one of the doormen named Hank (aka Hank the Tank) . The conversation took place at the back wall next to the juke box. Russ asked Hank if he knew where he could get some cocaine. Hank said he would check for him. Later that evening, Hank came back to Russ and said that everyone was out but that they would be getting some the next day. There were approximately 75 patrons in the lounge this night and there were approximately 7 employees on duty. On December 16, 1983, Officer Russ returned to the licensed premises. He was accompanied by Barbara Brown, a Callaway police officer. They entered the lounge at approximately 8:25 p.m. and took seats at the beck bar where Brenda was working. There were approximately 50 to 70 patrons in the lounge and 6 employees on duty. While seated at the bar, Officer Russ talked with Brenda, who at one point placed her purse on the bar and searched through several medicine vials just as she had done on a prior occasion. She then handed Officer Russ a yellow capsule similar $0 the ones he had received before. Russ did not pay Brenda any money for the capsule. The capsule was phentermine, a controlled substance under Chapter 893, Florida Statutes. This evening, Officer Russ also spoke with a doorman or bouncer on duty named Kevin. He asked Kevin if he could get him some marijuana. Kevin said Tallahassee was dry and that he had not had a joint in 3 days. Kevin, at the time of the formal hearing, was no longer employed by the Respondent. On his next visit to the licensed premises, Officer Russ was accompanied by Officer Smith. This visit occurred on December 21, 1983. There were between 50 and 75 patrons in the lounge and 5 employees on duty. Officer Russ spoke with one of the barmaids on duty about Kevin. Russ also asked her if she knew where he could get a joint. She said she did not, and suggested he talk to Cindy the bartender at the front bar. Brenda was not working this particular evening end Cindy was working at the front and back bar. Cindy was working at the back bar at that time and Russ spoke with her about the availability of drugs. Cindy told Officer Russ that she had a friend who would be returning with some Hawaiian marijuana. Larry Mellon overheard the conversation and told Cindy and Russ that the guy she was referring to wasn't coming back but was going to Chi-Chi's and then-home. Russ then began talking with Larry Mellon and Jim Bob Kitchen joined them. During the conversation, Jim Bob handed a marijuana cigarette to Officer Smith who then handed it to Officer Russ. The exchange occurred at approximately 10:00 p.m. The marijuana cigarette looked like a rolled marijuana cigarette and contained .2 grams of marijuana. This same evening, Officer Russ was introduced by Butch (whom he had met previously) to a woman named Melinda. Officer Smith had earlier been introduced to Melinda by Butch and was told that Melinda had some marijuana to sell. Officer Russ discussed buying some marijuana from Melinda, and Russ, Smith, and Melinda then went outside the lounge to the parking lot where Melinda sold 11 grams of marijuana to Officer Russ for $30. Officer Russ had never met Melinda before. On Wednesday, December 28, 1983, Officer Russ returned to the licensed premises. Brenda was working at the back bar and Russ took a seat at that bar. Russ asked Brenda if she had gotten the marijuana in Bristol. She said she had not but that she had gotten some more pills from her doctor in Quincy. She said she had marijuana and pills in her car and that she had taken some really good cocaine earlier in the evening. Russ asked Brenda if she had any of the cocaine left and she said she did. Brenda offered to sell Russ some of the cocaine for $75. This discussion took place at the bar with Larry Mellon and Jim Bob Kitchen present. While he was seated at the bar, Brenda got her purse and went to the doorway located next to the little short bar. She took out some pill bottles and in a few moments returned to Russ and gave him an envelope. As she handed him the envelope, Brenda stated she had put the other stuff in there too. The envelope was handed across the bar in open view. The envelope contained 15 capsules of phentermine and a triangular shaped packet of cocaine. Larry Mellon was standing nearby when the transfer occurred and asked Russ what they were doing. Russ said, "Nothing." Larry then stated that he knew what they were doing and that he had seen money change hands and had seen the envelope. After he received the envelope, Russ again asked Brenda about getting some marijuana. Brenda then left the bar through the front door and returned shortly through the same door with a brown bag in her hand. She handed the bag to Officer Russ who then put the bag in his beck pocket. The bag contained .2 grams of marijuana. On January 4, 1984, Officer Russ went to the licensed premises alone. When he arrived, there were very few patrons in the bar and Brenda was seated at the back bar with her feet up. The other bartender, Kathy, was also present. Officer Russ talked with Brenda and Kathy and jokingly asked Kathy if she would like to run a couple of lines of cocaine on the bar. Be also asked Brenda if she had been to Bristol yet. Brenda responded she had but not far enough to get the marijuana. Cindy came back from the front bar and spoke to Brenda, and Russ asked Cindy if her friend with the Hawaiian stuff had come back. Cindy responded, "No." Brenda brought up the subject of pills and placed her purse on the bar end looked at several medicine vials. She took some pills out of one of the vials and placed them in a napkin and handed the napkin to Russ. Russ told Kathy that Brenda had just given him some speed and did she want some. Brenda responded by saying, "Kathy wants coke." Russ then told Cindy that Brenda had given him some speed end did she want to go outside and have some. There were a total of four employees on duty in the lounge this night. There were no doormen working. There were approximately 20 patrons in the lounge. The ten white capsules which Officer Russ received from Brenda were methyephenidate a Schedule II controlled substance under Florida law. Officer Russ's lest visit to the licensed premises was on January 6, 1984. Russ entered the lounge alone and as he entered, he spoke -with Kathy, Cindy and another bartender named Pam. Russ went to the back bar where Brenda was working. He obtained some pills from Brenda. These pills were handed across the bar to Russ and were not in any type of container. Prior to this transfer, Russ had been talking to a patron named Bucky about drugs and pills. As she handed Russ the pills, Brenda stated that she did not have anything to put them in and that she was going to take one herself. Russ told her to give Bucky one and she did. Russ then gave Brenda $20 and told her that she could get the prescription refilled and share them with him. Russ left the licensed premises about 8:55 p.m. and as he was leaving, he spoke to the two doormen. He first asked them where Hank was and they said, "Osceola Hall." Russ then told them that he had just gotten some speed and that he was going outside to take some. The two doormen just laughed. Neither of them asked him to leave. Mr. Fred Dillman was observed in the licensed premises on only one of the 14 evenings Officer Russ was in the lounge. Sometime in October, Mr. Dillman injured his hand and lost a finger in an accident on his farm. Because of this injury he was in the lounge less than he normally would have been in November and December. Mr. Leonard Coffee is the manager of the licensed premises. He manages Fred's Back Door Lounge and another lounge owned by the Respondents. He has worked as manager for 11 or 12 years and has worked in the liquor business off and on since 1955. He divides his work hours between Fred's Back Door Lounge and the other lounge he manages. Mr. Coffee was never informed by any employee that Brenda was dealing drugs in the lounge. It was not established how much of the manager's time is spent in each lounge. Mr. Coffee testified that he instructed all employees to call the police then report to them if they saw anyone with drugs in the lounge. However, only one of three bartenders who testified recalled having been instructed to report drug problems to the manager. Several employees had been approached about drugs and did not report this information to the manager or the owner. One employee, Walter Humphries, had detected a strange odor in the lounge on prior occasions and hand thrown out people in the area of the odor. On one of his visits, Officer Russ also smelled what he considered to he marijuana smoke inside the lounge. There was no clear policy established or communicated to the employees as to what they were to do if they detected drugs being used or sold on the licensed premises. Mr. Coffee testified that he told the employees to call the police end inform him if there were any drugs detected on the licensed premises. However, the employees were not aware of this policy and did not follow the policy. There were no instructions given to employees regarding the detection of drugs and what they should look for in observing and supervising the licensed premises. There were no regular employee meetings where problems or potential problems in the lounge such as drugs were discussed. At the time each employee is hired, they are interviewed and are asked for prior work references. They are not required to fill out an application and are not asked whether they use drugs. No signs were observed in the lounge prohibiting the use or possession of drugs. Approximately two years ago, Respondent, Fred Dillman, 11, was informed by his attorney that the District Beverage Captain had received information that Brenda was selling drugs at the licensed premises. Mr. Dillman confronted Brenda with this information and she denied any involvement with drugs. Brenda, at that time, had been a good employee without any problems at work for seven years. He did not terminate Brenda but asked Mr. Coffee and another employee, Mr. Poulis, to keep an eye on Brenda. Mr. Poulis works in the liquor store from 6:00 p.m. to 10:00 p.m. and then works in the lounge until closing time at 2:00 a.m. Prior to his accident in October, Mr. Dillman was in the lounge more at night. Mr. Dillman's father and mother do not go-to the lounge at night. The patrons of the lounge are almost entirely college age. Mr. Dillman had received information that patrons were smoking marijuana on the back deck of the lounge and that the bikers were dealing drugs on the deck. Approximately one month ago, he instructed his bartenders to stop serving the bikers. Mr. Dillman was aware that drugs were likely to be present in a primarily college age crowd. Fred's Back Door Lounge has a reputation in the community as an establishment where drugs could be obtained. The Respondents do not approve of or condone use of drugs in the licensed premises or elsewhere. Neither the Respondents nor the manager, Mr. Coffee, were aware that Brenda was selling drugs on the licensed premises.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondents guilty of the violations as set forth above and suspending the Respondent's license for a period of 90 days and impose a civil penalty of $10,000. DONE and ORDERED this 23rd day of January, 1984, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1984. COPIES FURNISHED: Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 James N. Watson, Jr., Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 James P. Judkins, Esquire P.O. Box 10368 Tallahassee, Florida 32302 Marion D. Lamb, Jr., Esquire P.O. Box 1778 Tallahassee, Florida 32302
Findings Of Fact Respondent Michael G. Mandeville, d/b/a The Sugar Shack (Mandeville), is licensed under the Beverage Law, license number 27-1311, series 2-COP, for the premises known as The Sugar Shack located at 11 East Fairfield Drive, Pensacola, Escambia County, Florida. Mandeville has operated The Sugar Shack at that location under that license from July 1985 through the emergency suspension of the license and closing of the business on January 16, 1986. Previously, Mandeville was President, Secretary and Treasurer and 100 percent stockholder of Someplace Else Pensacola, Inc., a licensee under the Beverage Law. On February 1, 1984, Someplace Else Pensacola, Inc., entered into a Stipulation with Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), settling a Notice To Show Cause containing eight counts of solicitation of drinks and one count of conspiring to deliver a controlled substance. At the time, the licensee, Someplace Else Pensacola, Inc., was doing business as The Sugar Shack at 720 West Government Street, Pensacola, Florida. Earlier the licensee Someplace Else Pensacola, Inc., was doing business as Someplace Else at Highway 29 and Roberts Road in Pensacola, Florida. Mandeville was its Secretary and Treasurer and owned half of the stock issued by the corporate licensee. On July 29, 1982, the licensee Someplace Else Pensacola, Inc., d/b/a Someplace Else, entered into a Stipulation with the Division settling a Notice To Show Cause containing twelve counts of solicitation of drinks and five counts of delivering a controlled substance. In the short time Mandeville's current license was being operated, he was aware of drug problems on the premises. Problems of this sort in approximately September 1985 caused Mandeville to be in contact with the Escambia County Sheriff's Office, Narcotics Division. In order to help himself, Mandeville agreed to cooperate with the Sheriff's Office. Although Mandeville told officers in the Sheriff's Narcotics Division that he personally knew no drug users on the premises, he would have a part-time employed disk jockey named Darrel Able, who might have information, contact the Narcotics Division. Mandeville and his staff also had to fire several employees on suspicion of drugs, including a dancer named Margie. The Sugar Shack's premises consist of one large major room with a separate room for playing pool, separate dressing rooms, and men and ladies restrooms. The licensed, premises contain two stages for topless dancing performances, a booth for the disk jockeys and a large bar. It is not possible to see into the dressing rooms from the main room, from the bar or from the disk jockey booth. It is not possible to see the room containing the pool tables from the main room, the disk jockey booth, or the bar. Within the licensed premises, there are many tables where customers sit. During business hours of The Sugar Shack, there are topless dancers performing to loud music. Because of the loud music, it is difficult to hear normal conversations even among those sitting at one of the various tables in the licensed premises. Mandeville employs several people to assist him in the operation and maintenance of The Sugar Shack. During most of the business day, Mandeville is present at the licensed premises. When Mandeville is not present, his brother Steve is in charge of the licensed premises. When Steve Mandeville is not present, the assistant manager and doorman Russell Sapp is in the licensed premises and supervises them. When Sapp is not present, John Chiarito, an employed disk jockey, manages the licensed premises and supervises them. For most of the day, two or three of these people are present in the licensed premises and serve in a supervisory capacity. Additionally, Mandeville employs a day bartender named Helen Mabie, who functions in a supervisory capacity. Mandeville also employs other personnel including bartenders and waitresses who are in the licensed premises during business hours and are supposed to inform management of any violations of laws and rules they suspect. Mandeville himself is present at the licensed premises for approximately eight hours a day at various times between 1:30 p.m. and 2:00 a.m. Mandeville generally supervises the overall business operations of The Sugar Shack, including the hiring and firing of employees. Since Mandeville opened the licensed premises, he has announced a policy applicable to all employees prohibiting the possession of drugs in the licensed premises and the solicitation of drinks by employees. Generally, all employees, especially dancers, are required to sign statements agreeing to the policies. Rules implementing the policies are posted prominently in several locations within the licensed premises including the dancers' dressing rooms. However, the signs contain statements like: "there's a time & place for everything, please think before making your move"; "they are watching you know the law, they know you"; and "the law has the right to walk in this dressing room at any given second keep yourself & your friends out of trouble." Although the overall message of the signs and policies prohibit drugs and drink solicitation, the above unfortunately phrased parts of the signs might tend to imply a management attitude that those activities are acceptable as long as no employees are caught doing them. Mandeville has made it known to his employees that violation of the prohibition against drugs would result in termination, supposedly without giving anybody a second chance. Mandeville and his management staff have in fact fired several employees for violation of the prohibition against drugs on the licensed premises: Toni for smoking marijuana in the dressing room; Nicki for possession of prescription drugs not in a bottle; Margie for using and selling cocaine; and Nicole for suspicion of selling cocaine. According to Mandeville, even suspicion of violating the drug prohibition will result in termination, and there is not supposed to be a second chance for anyone. However, Margie was rehired after being terminated for violating the drug prohibition. In addition, Mandeville did not fire Margie a second time before his license was suspended and did not fire another dancer named Nicole until the first week of January 1986 although he suspected both of them of selling cocaine as early as December 19, 1985, when an undercover Escambia County Sheriff's Office narcotics deputy posing as a patron told him that Nicole had sold the deputy cocaine. Mandeville also made it known to his employees that patrons were supposed to be asked to leave the premises if they violated drug laws on the premises. If such a patron refused to leave, either they were to be forced to leave or law enforcement was to be notified. However, Mandeville did not ask the undercover deputy to leave on December 19, 1985, although the undercover deputy told Mandeville that he had bought cocaine from Nicole. Similarly, the same undercover deputy was not asked to leave by an employee named Sophia on December 27, 1985, when the deputy told Sophia that he had bought cocaine from Nicole. Mandeville or his managements staff conducts periodic unannounced searches of the dancers' lockers. These searches are conducted in the dancers' presence. Refusal to permit a locker search is grounds for termination, and two employees, one a dancer named Connie, were fired for refusal to allow a locker search. According to Mandeville, his management staff is supposed to periodically review with the employees the rules prohibiting drugs and drink solicitation. However, Mandeville does not follow up on the performance of his management staff and several understand their obligation to be only to go over the rules with the employees when one of the employees violates the rules. Only Dwight Sparks, the Sunday night manager, goes over the rules each night he works. Violation of the rule against drink solicitation, when detected, is supposed to result in termination. But there was no evidence that any employee has been fired for drink solicitation. Enforcement of this policy is not as strict as enforcement of the policy against drugs on the premises. Mandeville does not require his employees to subject themselves to a polygraph lie detector examination. He asks prospective employees for an oral history of employment but does not get it in writing and does not check the validity or quality of the references. Mandeville does not check for arrest records of his employees. On December 3, 1985, Officer Zeka of the Escambia County Sheriff's Department entered the licensed premises in an undercover capacity posing as a patron. Within minutes of entering the premises, Zeka was able to buy five capsules of cocaine from the employed dancer Nicole. Nicole and Zeka were sitting back to back in adjoining booths when the transaction took place. Nicole reached over the waist high back of the booths and placed the capsules on Zeka's table in exchange for $50. Because of the loud music, dark lighting, relatively cluttered table and the topless dancing performances attracting attention elsewhere, the transaction would have been difficult for anyone to detect who was not paying attention and trying to detect a drug transaction even though the transaction was not completely concealed. Zeka quickly counted the capsules and put them in his pocket. On December 4, 1985, Zeka bought from Nicole another three capsules of cocaine in a clear cellophane cigarette package wrapper for $50. The circumstances of the transaction were essentially the same as on December 3. Later on December 4, 1985, Zeka bought from Nicole another five capsules of cocaine for $50. The circumstances of this transaction also were the same as on December 3. As on December 3, Nicole placed the capsules on the table in front of Zeka who counted them and put them in his pocket. On December 5, 1985, Zeka again bought from Nicole five capsules of cocaine. Again, the circumstances were essentially the same as on December 3. As on December 3, Nicole placed the capsules on the table in front of Zeka who counted them and put them in his pocket. On December 26, 1985, Zeka was in the licensed premises and asked employed dancer Margie to sell him some cocaine. At first Margie was unable to because "her man," i.e., her source of drugs, was not around. Later she walked over to and embraced "her man," Darrel Able, who slipped a clear plastic bag containing approximately one-half gram of cocaine into the back of her g-string type panties. Margie returned to the table and put the bag on the table between Zeka and another undercover officer named Lewis. Somehow the bag opened, and some cocaine spilled on the table. Margie suggested they "do a line" from the cocaine spilled on the table and took a straw out of one of the glasses on the table. When Zeka and Lewis affected to warn her not to be so open about it in order to preserve their cover, Margie told them not to worry because it was done all the time. However, it was not proved that Margie was not either joking or intoxicated, and no credence can be given to her statement that cocaine was used at the tables in the licensed premises. As before, the licensed premises were dark and noisy at the time and the attention was directed to the dance stage. Although the transaction was not completely concealed it still would not have been easy to detect. On December 27, 1985, an employed dancer named June openly handed Lewis a marijuana cigarette she said she had been given as a tip and invited Lewis to smoke it outside. Again, although June made no attempt to conceal what she was doing, it would have been difficult to detect exactly what she was doing and that she had a marijuana cigarette. Also on December 27, 1985, Zeka asked employed dancer Nicole to sell him some more cocaine. Nicole had none and had to leave the licensed premises to obtain some. She put on her street clothes, left, returned and handed Zeka four capsules of cocaine in a concealed manner. On December 31, 1985, a man named John Carroll sold cocaine to Zeka's confidential informant twice within 20 minutes. Both times the confidential informant walked over to Carroll, who was standing by the bar. The first time Mandeville himself was seated five bar stools away from Carroll. Both times the confidential informant persuaded Carroll to sell the cocaine, reached into his front shirt pocket to get the cocaine and returned to Zeka who was approximately 15 feet away. In a concealed manner, the cocaine was handed to Zeka, who held the clear plastic bag containing the cocaine up by the corner, looked at it and placed it in his pocket. Again, although Mandeville was in a position to see the first transaction if he had been paying attention and watching for it, the evidence did not prove that he actually saw the transaction. It was not proved that Carroll was an employee, as opposed to a patron, of Mandeville. On January 13, 1985, Lewis bought a half gram of cocaine from employed dancer Margie for $50. Margie delivered the cocaine in a concealed manner that would have avoided any detection. In addition to the activity involving controlled substances described above, Mandeville's employees on numerous occasions solicited drinks from Lewis as follows: Sophia December 19, 1985 Liz December 19, 1985 Angela December 19, 1985 Debbie December 19, 1985 Candy December 30, 1985 Judy December 30, 1985 Chastity December 30, 1985 Candy December 30, 1985 Margie December 26, 1985 June December 27, 1985 Cindy December 27, 1985 Candy December 27, 1985 Peggy December 27, 1985 Mandeville never asked the Division for assistance in, or suggestions for, supervising the licensed premises so as to control or eliminate illegal drug violations and drink solicitations. Rather, the evidence is that Mandeville offered to cooperate with the Escambia County Sheriff's Office to "help himself and them" in September 1985 and later in late December 1985 or early January 1986. In essence, as previously mentioned, Mandeville put the Sheriff's Office in contact with Darrell Able and, on one occasion in early January 1986, telephoned the Sheriff's Office to relate that Able supposedly thought he was going to be able to set up a drug deal for the Sheriff's Office. Neither Mandeville nor Able ever re-contacted the Sheriff's Office. Weighing the totality of the evidence, it is found that Mandeville did not supervise the premises and his employees in a reasonably diligent manner under the circumstances. Mandeville was aware from past experience of the problem of drugs in an establishment like the licensed premises in general and in the licensed premises themselves in particular. Mandeville announced adequate policies and placed some management techniques in effect to implement the policies. However, Mandeville did not adequately follow up and did not know that his staff was not following all of the techniques. They were not, for example, regularly reviewing the rules prohibiting drugs and drink solicitation with the employees, and the employees did not understand that they were to report all suspicion of violation of the rules by both employees and patrons to the management. Mandeville himself failed to follow his own procedures by rehiring Margie and failing to fire Margie and Nicole immediately upon receiving information or knowledge of their drug use and dealing at least by December 19, 1985. Not only did Mandeville and his staff not follow all the procedures that he had in place, Mandeville did not seek the assistance and suggestions of the Division for additional management techniques. He did not improve the lighting in the licensed premises, did not polygraph his employees and did not check the background of prospective employees. A combination of the laxity of Mandeville and his staff in enforcing the procedures he had in place and Mandeville's failure to adopt more effective available procedures that he should have known were required under the circumstances proximately caused the employee violations on the premises. As for the drink solicitation violations, Mandeville's written policy against drink solicitation appears to be more honored in the breach. In addition to the thirteen violations within eleven days charged in this case, the two previous notices to show cause against a licensee in which Mandeville had substantial interest and control contained a total of twenty counts of drink solicitation which were settled by stipulation.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking Alcoholic Beverage License Number 27-1311, Series 2-COP, held by Respondent, Michael G. Mandeville, d/b/a The Sugar Shack, 11 Eastfair field Drive, Pensacola, Escambia County, Florida, on all the grounds alleged in the Notice To Show Cause in this case except paragraphs (1)g. and (2)g. RECOMMENDED this 13th day of February 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 13th day of February 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0203 Rulings On Petitioner's Proposed Findings of Fact. Covered by Finding 1. 2.-5. Covered by Findings 16.-19., respectively. 6. Covered by Finding 10. 7.-8. Covered by Findings 20-21, respectively. 9. Covered by Finding 11. 10-11. Covered by Findings 22-23., respectively. Covered by Finding 25. Rejected as cumulative. Covered by Finding 26. 15-16. Covered by Findings 2-3., respectively. Covered by Finding 27. Covered by Findings 8-14. 19-20. Covered by Findings 6, 10 and 13, to the extent necessary. Covered by Findings 8 and 10, to the extent necessary. Whether Mandeville has fired June is irrelevant since the Sugar Shack has been closed since the license was suspended. Covered by Finding 13. Covered by Findings 23 and 24. Covered by Findings 4, 7, and 27. Rulings On Respondent's Proposed Findings of Fact. Covered by Finding 1. 2-4. Covered by Findings 5-7, respectively. 5. Covered by Findings 15, 8, and 9, to the extent necessary. 6-9. Covered by Finding 10, to the extent necessary. (The evidence was not clear exactly who fired the various employees but that is not necessary or relevant). 10. Covered by Finding 1. 11-13. Rejected as unnecessary recitation of procedural history. 14-17. Covered by Findings 16-19., respectively. 18. Covered by Findings 11 and 28. (There was no persuasive evidence that Mandeville "conducted an investigation concerning the activities of Nicole" or "obtained additional information" or that Mandeville fired Nicole "as soon as the Respondent verified this information"). 19-22. Covered by Findings 20-23, respectively. Covered by Finding 23. Rejected as not proven by the weight of the totality of the evidence. See Finding 11. Also, he certainly would not have been in trouble if caught by Nicole, Margie or June. Covered by Finding 25. Rejected as irrelevant and unnecessary. 27-37. Covered by Finding 26, to the extent necessary. 38-40. Rejected as incomprehensible. See also paragraphs 41-49. below. 41-49. Covered by Findings 8-14. There was no evidence that any employee ever has been fired for solicitation of drinks. The evidence was not clear which individual or group of individuals actually fired all of the individuals listed in Finding 10. Their identity is not necessary or relevant. 50. Covered by Findings 8, 13. and 14. 51-52. Covered by Finding 12. (There was only evidence that two employees were fired for refusing to allow a locker search). Covered by Findings 4 and 27. Accepted and covered by Finding 23 and the absence 55.Accepted and covered by the absence of any finding that they did. Covered by Findings 16-23. Rejected as irrelevant and unnecessary. 58-59. Accepted and covered by the absence of any finding that they did. COPIES FURNISHED: Sandra P. Stockwell, Esouire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Michael J. Griffith, Esguire Post Office Box 12308 Pensacola, Florida 32581 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 South Bronugh Street Tallahassee, Florida 32301
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
The Issue The question presented in this cause concerns the necessity that the Petitioner pay an additional $1,000 fee which is purportedly required by the conditions of Subsection 565.02(1)(g), Florida Statutes, if it is determined that the Petitioner has more than three permanent separate locations serving alcoholic beverages for consumption on its licensed premises, Store No. 126. This alleged fee requirement is associated with the Petitioner's application to the Respondent for an "increase in series" of its alcoholic beverage license from a Series 3-PS, which permits "package sales" for off-premises consumption only, to a Series 4-COP, which permits consumption of alcoholic beverages on the licensed premises. The Petitioner claims that the arrangement in the licensed premises does not exceed the limit of three permanent separate locations for serving alcoholic beverages and the Respondent claims that there are four permanent separate locations for serving alcoholic beverages for consumption on the licensed premises, thereby exceeding by one the allowable limit and causing the imposition of the $1,000 additional license tax set forth in Subsection 565.02(1)(g), Florida Statutes.
Findings Of Fact On March 24, 1977, the Petitioner, ABC Liquors, Inc., made an application with the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, for an "increase in series" of its alcoholic beverage license for Store No. 126, located at 3427 Southwest Archer Road, Gainesville, Alachua County, Florida. The increase requested was a change from a Series 3-PS license, which permitted "package sales" for off-premises consumption only, to a new Series 4-COP license, which permits consumption of alcoholic beverages on the licensed premises. For reference purposes, a copy of the front sheet of the application is attached to this Recommended Order and incorporated by reference as Attachment "A". In compliance with the procedures of the Respondent, T. L. Ewing, the Respondent's employee, drew a sketch of the premises on the reverse side of the application referred to in Attachment "A", and a copy of that sketch is attached to this Recommended Order and incorporated by reference as Attachment "B". That sketch is an accurate representation of the interior floor plan of the licensed premises. The floor plan is further depicted in the Petitioner's Composite Exhibit 5, specifically 5E, which is a sketch of the "as-built" plans of the portion of the licensed premises which is the subject of this dispute. This Exhibit 5E, which was admitted into evidence, depicts the deployment of the bar area which is utilized under the terms of a Series 4-COP license applied for. Additionally, Petitioner's Exhibit 1 is a photographic depiction of the type bar arrangements and accessways between certain portions of the bar arrangement; however, this photograph is taken of a similar lounge area and is not the actual area in question. This depicts another one of the Petitioner's lounges, located in a separate licensed premises. As described in the issue statement of this Recommended Order, the controversy presented for consideration involves a characterization of the bar areas shown in Attachment "B" and Petitioner's Exhibit 5E on the question of whether there are more than three permanent separate locations for serving alcoholic beverages for consumption on the licensed premises. The significance of having more than three permanent separate locations for serving alcoholic beverages for consumption on the licensed premises is revealed by a reading of Subsection 565.02(1)(g), Florida Statutes, which states: 565.02 License fees; vendors; clubs; caterers and others.-- (g) Vendors operating places of business where consumption on the premises is permitted and which have ,more than three permanent separate locations serving alcoholic beverages for consumption on the licensed premises shall pay in addition to the license tax imposed in paragraphs (b), (c), (d), (e), and (f), $1,000. However, such permanent separate locations shall not include service bars not accessible to the public or portable or temporary bars being used for a single occasion or event. Golf club license holders may operate service bars or portable or temporary bars on the grounds contiguous to their licensed premises and shall pay $100 for a certified copy of the club license, which shall be posted on the bar. The area contiguous to the licensed premises shall be considered an extension of the licensed premises upon payment of the fee, posting of the certified copy of the license, and notation of such extension upon the sketch accompanying the original license application. In reviewing the license application for "increase in series", the Respondent has taken the position that there are within the room which constitutes the lounge area, four separate locations and those four locations are made up of the rotating bar, and the perimeter bar areas which show three sections broken up by the east and west ramps separating those portions of the perimeter bar area. It is the contention of the Respondent that the word "location" is equivalent to the bar areas shown in the lounge room and, counting the rotating bar and the three separate perimeter sections, there would be four locations. Consequently, under the Respondent's theory, the Petitioner is required to pay an additional license tax in the amount of $1,000 for the extra location in excess of the allowable three locations. The Petitioner asserts that the meaning of the word "location" as found in the subsection calls for more definitive separation than is found between the sections of the perimeter bar operation and that the design of the perimeter bar which allows for entrance and exit ramps through the center of the horseshoe shaped device which is the perimeter bar area, does not create the type definition contemplated by the law. To the Petitioner, separate rooms would be more in keeping with the legislative intent in drafting the requirement in Subsection 565.02(1)(g), Florida Statutes. Moreover, the Petitioner argues that the rampways which divide the perimeter bar into three sections were installed primarily for the purposes of safety and convenience and those efforts to allow for safety and convenience should not be used to unfair advantage by the Respondent in claiming that there are four locations as opposed to a maximum of two locations; those two locations being constituted of the rotating bar and a perimeter bar. The Petitioner claims that certain local ordinances require that exits be available within a specified number of feet of the position a patron might be found in during the course of an emergency and the Petitioner alludes to the fact that the rampways aid in the evacuation through the exits. The Petitioner did not demonstrate that the removal of the passageways would cause a violation of the ordinances dealing with emergency exit accessibility. Petitioner also states, and the facts reveal, that within the room proper there are six serving stations in the perimeter bar area, constituted of case registers, soda heads, sinks and other necessary structures to the service of patrons. These soda heads, waterlines, and drainage systems have common origins or terminus. Other relevant facts presented in the case include the facts that the bar structure in terms of the shell of the various positions within the lounge area, are permanent installations, although the soda heads for mixed drinks may be moved around within the shell. There are swinging doors on the northern and southern fingers of the various sections of the perimeter bar area. The rampway is unobstructed unless one of those swinging doors is opened when a person is attempting to use the rampways. The dimensions and measurements within the lounge may be discerned by an examination of the other aspects of the Petitioner's Composite Exhibit 5, with the caveat that these design sheets must be considered in view of the "as-built" sketch found in Petitioner's Exhibit 5E. This statement is made because there were design changes made from the original proposal which relocated the dance floor in the lounge area and made other changes which may be seen in this review.
Recommendation It is recommended that the Petitioner, ABC Liquors, Inc., be required to pay an additional license tax of $1,000 in all applicable periods for its place of business located at 3427 Southwest Archer Road, Gainesville, Alachua County, Florida. DONE AND ENTERED this 3rd day of October, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Harold F.X. Purnell, Esq. General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 James E. Foster, Esq. 170 East Washington Street Orlando, Florida 32801 ================================================================= AGENCY FINAL ORDER =================================================================
Findings Of Fact The Respondents, Conrad F. and Shirley Bouchard, are holders of beverage license number 39-790, series number 2APS. This license is issued to the licensed premises, Brandon Beverage Center, located at 118 Margaret Street, Brandon, Florida. The license was obtained by the Respondents by transfer on August 21, 1981. The licensed premises is a drive-through store which sells beer and wine, milk, bread, and other grocery items. Conrad F. Bouchard, Sr., is one of the owners and licensees and is also the manager of the store. His regular working hours are from 8:30 or 9:00 A.M. to 4:30 or 5:00 P.M. He occasionally is required to work evenings and weekends. Conrad F. Bouchard, Jr., also known as Butch, is the son of the Respondents and worked nights at the licensed premises. On April 1, 1982, the Respondent was given a written warning from Beverage Officer George Miller that there had been complaints about sales of alcoholic beverages to minors at the licensed premises. On October 27, 1982, an employee of Respondent, named Scott Steinberg, was arrested for selling alcoholic beverages to minors. As a result of this, the Division of Alcoholic Beverages by Notice to Show Cause brought formal administrative charges against the Respondents. The charges against the Respondents resulted in a stipulation and settlement with the Respondents agreeing to pay a $300 fine. On July 22, 1983, Scott Steinberg was arrested for selling alcoholic beverages to minors and formal administrative charges were brought against the Respondents as a result of the alleged sales to minors. These charges are still pending. On the evening of October 11, 1983, at approximately 9:00 P.M., Detectives Michael Ray and Mark Olive of the Hillsborough County Sheriff's Office, went to the licensed premises to investigate complaints relating to the sale of drugs on the licensed premises. They were accompanied by a confidential informant. Upon arriving at the licensed premises, Butch Bouchard approached the vehicle and the confidential informant asked if he had any marijuana they could purchase. Butch Bouchard responded that he did. Scott Steinberg, another employee working at the licensed premises, approached the vehicle and took $26 from Detective Ray as payment for the marijuana. Butch Bouchard then returned to the vehicle holding a cigarette carton with the top torn off. He handed the carton to the confidential informant who in turn handed it to Detective Ray. The carton contained a baggie containing approximately five grams of marijuana (cannabis), a controlled substance under Florida Statute 893.13 (1981). On October 13, 1983, at approximately 9:10 P.M., Detectives Ray and Olive returned to the licensed premises. As they stopped their vehicle inside the drive-through store, Butch Bouchard approached Detective Ray. Ray asked Butch Bouchard if they could purchase some marijuana. Bouchard looked in the backseat of the vehicle and saw the confidential informant and then walked over to the office area. Bouchard then returned with a paper bag which he handed to Detective Ray. Detective Ray handed $25, the agreed price of the marijuana, to Bouchard. The paper bag contained a clear plastic baggie filled with marijuana. On this particular evening, Butch Bouchard was the only employee on the licensed premises. In the early evening of October 17, 1983, Detective Ray, accompanied by Detective Tony Roper, drove into the licensed premises. Butch Bouchard approached the vehicle and Detective Ray asked if he could purchase some marijuana. Butch Bouchard then asked Detective Ray to get out of his vehicle and select which bag he wanted. Butch Bouchard had several bags in his hand and asked Detective Ray to look at them. Detective Ray selected one bag and purchased it from Butch Bouchard. The bag contained marijuana. On October 20, 1983, at approximately 9:00 P.M. Detectives Ray and Roper returned to the licensed premises. Officer Ray purchased a plastic baggie of marijuana from Butch Bouchard for $25. On November 10, 1983, Detective Roper and Detective Mathai, Hillsborough County Sheriff's Office, went to the licensed premises and asked to buy a bag of marijuana from Butch Bouchard. Butch said he did not have any and asked them to come back later. When the detectives returned the Beverage Center was closed and Butch Bouchard was in the parking lot. Butch came over to the Detectives' car and sold them a plastic baggie of marijuana. On November 17, 1983, Detectives Geoffry Dean Mathai and John Zdanwic of the Hillsborough County Sheriff's Office, went to the licensed premises. On a prior occasion, Detective Mathai had gone with Detective Tony Roper to the licensed premises and had talked with Butch Bouchard about marijuana. On this evening, Detective Mathai asked Butch Bouchard if he remembered Tony and after a short conversation Mathai asked Butch if he could buy some marijuana. Butch said yes and asked how many bags. Detective Mathai told him they wanted two bags. Butch left the car, went into the office and returned a couple of minutes later with a Benson & Hedges cigarette carton. He handed the carton to Detective Mathai and Detective Mathai and Detective Zdanwic each handed him cash. The two detectives also had ordered a beer each and received the beer and change from Butch Bouchard. The cigarette carton contained two plastic baggies of marijuana. Detectives Mark Olive and Swann also made a purchase of marijuana at the licensed premises on the evening of November 17, 1983. The two detectives drove into the licensed premises and asked Butch Bouchard if they could purchase a $25 bag of marijuana and asked if he had that much. Butch responded yes and walked to the office area and then came back with a cigarette carton which he handed to Detective Olive. The carton contained a plastic baggie of marijuana. Butch Bouchard was paid $25 for the bag of marijuana. The only employees observed on the licensed premises this night were Butch Bouchard and Scott Steinberg. On the evening of November 22, 1983, Detective Ray and several other officers went to the licensed premises to serve a search warrant. When they arrived, Detective Ray spoke to Conrad Bouchard and asked if they could purchase some marijuana. Butch answered yes and went over to the area of the cash register and office area. Detective Ray then got out of his car and walked over to the office where he saw Butch Bouchard crouched down and looking at five bags of marijuana. Detective Ray identified himself as a police officer and Butch then grabbed the bags and ran into the bathroom and tried to flush the marijuana down the toilet. Detective Ray caught Butch before he could flush the toilet. After arresting Butch Bouchard, the officers searched Butch's car and found a pipe and two more plastic baggies of marijuana. When Butch was crouched looking at the bags of marijuana, Scott Steinberg was present in the same area. On each of the evenings that purchases of controlled substances were made at the licensed premises, no employees other than Butch Bouchard and Scott Steinberg were present at the licensed premises. Neither Butch Bouchard nor Scott Steinberg is a night manager. Both these individuals are merely sales clerks. The only manager for the licensed premises is Conrad F. Bouchard, Sr. Although the normal working hours for Conrad F. Bouchard, Sr., is 8:30 to 4:30 or 5:00 P.M., he occasionally returns to the licensed premises in the evenings to check on things. Mrs. Bouchard also makes a point of stopping by the licensed premises in the evening. Occasionally, Mr. or Mrs. Bouchard would check on the licensed premises without the employees being aware they were observing. Mr. and Mrs. Bouchard had no knowledge of the drug transactions which took place on the licensed premises. Shortly after acquiring the licensed premises, Mr. Bouchard fired several of the previous employees for selling alcoholic beverages to minors. Until the arrest of Butch Bouchard and Scott Steinberg for drug violations, there was no evidence that any disciplinary action was taken by the licensee against these two individuals for sales to minors on two occasions. Mr. Bouchard had a clear policy against selling alcoholic beverages to minors. He constantly instructed employees to check identification. There was no evidence of instructions or warnings having been given relating to other types of illegal activity. During July and August, 1983, Mr. and Mrs. Bouchard took separate vacations in order for one of them to be available to oversee the operation at the licensed premises. The licensed premises enjoys a good reputation in the community as a clean, well-run establishment. The Respondents individually enjoy an excellent reputation in the community as honest, hardworking people.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED: That a final order be entered finding the Respondents guilty of the violations as set forth above and imposing a civil penalty of $1400 and a suspension of the beverage license for a period of 30 days. DONE and ORDERED this 21st day of December, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1983. COPIES FURNISHED: Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Danny Hernandez, Esquire 707 Swann Avenue Tampa, Florida 33606
The Issue The parties stipulated as to the identification of all drugs seized and purchased by the investigators. The issues presented in this case are as follows: Whether the individual counts as set forth in the Notice to Show Cause took place as alleged; Whether Jerry Alden ("Alden") was an employee, agent or servant of the Respondent; Whether Respondent was culpably negligent in the supervision of the licensed premises. Both parties have submitted posthearing proposed findings of fact. A ruling has been made on each proposed findings of fact in the Appendix to this Recommended Order.
Findings Of Fact At all times pertinent to the allegations in the Notice to Show Cause, the Respondent, Michael George Shlepr, d/b/a Eau Gallie Inn, was the holder of a valid Alcoholic Beverage License #15-1912, series 4-COP, issued by the Petitioner to the Respondent for the Eau Gallie Inn located at 1841 Avocado Avenue, Melbourne, Brevard County, Florida. On January 22, 1986, Detective Bruce Triolo of the Melbourne Police Department ("MPD") entered the licensed premises as part of an undercover investigation of narcotics trafficking. Triolo was accompanied by a confidential informant who frequented the licensed premises and was well known by the patrons and employees of the licensed premises. During said evening, Triolo was approached by an individual known as Jerry Alden (and also referred to as "Jerry Holden" during the hearing), who asked Triolo if he wanted to buy marijuana. Triolo indicated he desired to purchase marijuana and thereafter met Alden in the parking lot of the licensed premises where Triolo purchased two bags of marijuana from Alden. On January 23, 1986, Triolo again entered the licensed premises as part of an undercover investigation. Triolo and Alden negotiated the sale of marijuana inside the licensed premises and Triolo met Alden in the picnic area adjacent to the building (see diagram in Petitioner's Exhibit 1) where Triolo purchased marijuana from Alden. This picnic area was included in the diagram of the licensed premises and made a part thereof at the suggestion of an agency employee after the undercover investigation of the licensed premises had begun. This area is irregularly shaped and has at least one entrance to it which cannot be observed from inside the licensed premises. On January 24, 1986, Triolo again entered the licensed premises as part of an undercover investigation. Triolo discussed purchasing marijuana from Alden. On this occasion, Alden asked the bartender, "Lynn," to hand him his jacket. Lynn brought Alden his jacket from a small office area behind the bar and gave it to Alden. Alden took a bag of marijuana from the jacket and delivered it to Triolo while they were sitting at the bar of the licensed premises. On January 28, 1986, Triolo entered the licensed premises as part of an undercover investigation and spoke with the bartender identified as "Bruce." Triolo asked Bruce where he could find Alden and was advised that Alden "was around." Triolo asked Bruce about purchasing marijuana and Bruce offered to sell Triolo one marijuana cigarette. Bruce took $1.50 from Triolo's change that was on the bar as payment for the cigarette. On January 31, 1986, Triolo entered the licensed premises as part of an undercover investigation. Triolo negotiated with Alden in the licensed premises the purchase of marijuana, which was delivered and paid for in the men's bathroom of the licensed premises by Alden. At that time, Alden asked Triolo if he was interested in purchasing any cocaine. Triolo said that he was and Alden left and returned in approximately 15 minutes. At that time, Alden met Triolo by the picnic table in the picnic area. Alden showed Triolo several cocaine rocks and sold Triolo one for $20.00. During the time that this transaction was taking place, the bartender, "Shawn," was standing at the back door of the licensed premises observing what was taking place in the picnic area. On February 25, 1986, Triolo entered the licensed premises with Agent Richard White of the Division of Alcoholic Beverages and Tobacco as part of an undercover investigation. Triolo purchased a bag of marijuana from Alden while sitting at the bar. Shawn, who was the bartender, handed Alden the bag of marijuana from behind the bar and Alden delivered the bag to Triolo. On February 26, 1986, Triolo entered the licensed premises as part of an undercover investigation. While there, he discussed the purchase of marijuana from "Marie," another patron. Marie delivered the marijuana to Triolo inside the licensed premises and Triolo passed the marijuana to White in the open while both men were sitting at the bar in the licensed premises. As part of an undercover investigation, on March 7, 1986, Triolo entered the licensed premises where he negotiated the purchase of a bag of marijuana with Alden. Alden only had one bag and a white female patron had also indicated she wanted to purchase a bag of marijuana. Alden met with the white female and Triolo at the picnic table in the picnic area and split the bag of marijuana between the white female and Triolo. On the same night, a patron, Brian Riordon, sold and delivered cocaine to Triolo in the parking lot of the licensed premises. On March 9, 1986, Triolo and White attended a party in the licensed premises for which they had purchased tickets as part of the continuing investigation. On this occasion, which was on a Sunday, Shlepr was present and served beer to Triolo and White at 11:57 a.m., contrary to Melbourne City Ordinance that prohibits the sale of alcoholic beverages prior to 1:00 p.m. on Sundays. On March 13, 1986, White entered the licensed premises as part of an undercover investigation with Triolo. White engaged in wagering on a game of liar's poker with another patron, "Tim," at the bar in front of the bartender. On March 14, 1986, Triolo entered the licensed premises and negotiated the purchase of marijuana with Alden. Triolo gave Alden $60.00; however, Alden returned and said he could not get the marijuana and gave Triolo his money back. The negotiations for the purchase took place in the licensed premises. On March 15, 1986, White entered the licensed premises with Triolo as part of their investigation. White began playing pool for money with Alden and another patron. The bartender, Lynn, was present and observed their gambling. On March 19, 1986, Triolo entered the licensed premises as part of an undercover investigation and discussed with Alden purchasing marijuana. Alden advised Triolo that "the marijuana was on its way over." In a short while, a white male patron, Dennis Thorp, arrived and delivered the marijuana to Alden, who in turn delivered it to Triolo. Subsequently, on March 19, 1986, Alden sold a stolen outboard motor to Triolo at an apartment in the vicinity of the licensed premises. The negotiations for the purchase of the stolen outboard motor took place on the licensed premises. On March 20, 1986, Triolo entered the licensed premises with White as part of an undercover investigation. Alden, with Dennis Thorp, sold and delivered marijuana to Triolo on the licensed premises. White engaged in a pool game with Alden for money on the same evening. As part of the continuing investigation, on March 26, 1986, Triolo entered the licensed premises where he discussed the purchase of marijuana with Alden. He subsequently drove Alden to a house in Melbourne which Alden entered and returned with several bags of marijuana. Alden explained that he had more orders for marijuana than he had bags of marijuana. As a result, the potential purchasers, to include Triolo, met with Alden at the picnic table in the picnic area at the Eau Gallie Inn where the bags were split. Triolo received part of a bag in return for driving Alden to pick up the drug. On April 1, 1986, Triolo entered the licensed premises as part of the ongoing investigation and discussed the purchase of marijuana with Alden. Alden sold and delivered marijuana to Triolo on the licensed premises. Subsequently, Alden approached Triolo with another white male, identified as "Ted" and discussed with Triolo the purchase of cocaine. Triolo gave money to Ted, and Ted and Shawn, a bartender at the Eau Gallie Inn, left the licensed premises together and returned with cocaine. Ted delivered cocaine to Triolo on the licensed premises. No evidence was received that Shawn was on duty the night in question. On April 3, 1986, Triolo entered the licensed premises as part of the continuing investigation. On this occasion he negotiated the purchase of marijuana from Alden and Thorp and cocaine from Alden and Ted on the premises. The cocaine was delivered in the picnic area. Evidence was not clear on where the marijuana was delivered. On April 4, 1986, Triolo entered the licensed premises as part of the continuing investigation. A patron, Mark Harrold, injected himself with drugs in the bathroom of the licensed premises while Detective Triolo guarded the door. On April 5, 1986, Triolo and White entered the licensed premises as part of the continuing investigation and spoke with Alden. A purchase of marijuana was negotiated and money was delivered by Triolo to Alden; however, when Alden returned with the marijuana, he had less marijuana than potential purchasers. Alden went into the kitchen area behind the bar where he split a bag and delivered half to Bruce, the bartender on duty, and half to Triolo. Alden approached White on the premises about purchasing a Colt revolver which Alden represented had been stolen. On April 9, 1986, Triolo entered the licensed premises as part of the continuing investigation. On this occasion, Alden delivered to Agent White in Triolo's presence, cocaine which White held up to the light and examined while standing at the pool table in the licensed premises. On said night, no marijuana was available for purchase; however, a number of people were in the picnic area smoking marijuana and free-basing cocaine. Also on April 9, 1986, Alden approached Triolo about purchasing some amphetamines. Alden left the premises and when he returned, sold to Triolo a substance represented to be amphetamines. However, upon analysis it was determined to be a caffeine derivative. Alden collaborated in this transaction with a patron known as "Doc Holliday." On the night of April 11/12, 1986, Agent White entered the licensed premises as part of the investigation. He discussed purchase of marijuana with Alden, who left the premises and returned after midnight. Alden delivered marijuana to White in the men's room. Shawn the bartender was in the toilet, came out, and saw Alden and White concluding the purchase of the drugs. Shawn asked if Alden would have a bag left which he could purchase. On April 15, 1986, Agent White brought up marijuana with the licensee, Shlepr, who was tending bar. Shlepr told White to put the marijuana back in his pocket; that he did not want to see it in the licensed premises. On April 16, 1986, Alden sold and delivered cocaine to Triolo on the licensed premises. Conflicting testimony was received concerning the status of Alden as an employee. The records of the licensed premises do not reflect Alden was an employee; however, the records of at least one other employee were also demonstrated to be incomplete or inaccurate. The licensee, Shlepr, testified that Alden was not an employee but was a regular patron who voluntarily would do helpful things around the licensed premises on occasion. Shlepr gave Alden free drinks on occasion in recognition of Alden's patronage and help. Triolo and White observed Alden on occasion taking beer from the stock room to the bar, clearing tables, and in one instance going next door to get Shlepr change. Triolo and White also observed that Alden had easy access to the area behind the bar, the small office behind the bar, the telephone, and cash register. Testimony was also received that during a portion of the investigation, Alden was dating one of the regular barmaids. Another of the regular bartenders testified Alden was not an employee. Based upon the most credible evidence, it is found Alden was not an employee; however, Alden was clearly permitted too much freedom in the licensed premises. The licensee, Shlepr, worked full-time on the evening shift at a local business in Melbourne at all times relevant to this complaint. He was on the premises from noon until the commencement of his shift and returned to the licensed premises after he got off work to close the licensed premises. He did not have a manager on the premises and the only employee present when Shlepr was not there was the bartender. The bartenders were given great freedom; one going so far as giving away drinks. The only two allegations which Shlepr could have observed or participated in were when Shlepr served the investigators beer on Sunday, March 9, and when White showed Shlepr marijuana on April 15. There is no allegation Shlepr had knowledge of the other incidents. Gary Michael Gordon was a substitute bartender during the period of the investigation at the Eau Gallie Inn, during which time and unto the present he was the Respondent's roommate. The identification of all the drugs mentioned above is accurate. There have been no previous disciplinary actions against this licensee. No evidence was introduced in support of counts 24 and 32. Respondent had no direct knowledge of the drug trafficking and gambling.
Recommendation Considering the fact that the violations of Sections 561.29(1)(a) and (c), Florida Statutes, arise primarily from acts of omission and not commission, and that only very minor and technical violations were attributable to the Respondent personally, it is recommended that the Respondent's license be suspended for six months; that he be fined $1,000; and that his presence or the presence of a responsible manager on the premises be required as a condition for continued operation. DONE AND ORDERED this 28th day of May 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 28th day of May 1986. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-1343 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties. Both Petitioner and Respondent filed proposed findings of fact in this case. These proposed findings were read, considered, and adopted unless the proposed finding was rejected for the reason stated. Rulings on Proposed Findings of Fact Submitted by Petitioner Adopted in paragraph 1. Adopted in paragraph 2. (NOTE: Petitioner's Proposed Findings of Fact contains two paragraphs numbered "3"; the paragraphs are herein referred to as Page 2, Paragraph 3, or Page 3, Paragraph 3. All other paragraphs in Petitioner's findings are referred to by their indicated number. Page 2, Paragraph 3 Adopted in part; rejected in part and rewritten in paragraph 25. Page 3, Paragraph 3 Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 8. Adopted in paragraph 9. Adopted in paragraph 10. Adopted in paragraph 11. Adopted in paragraph 12. Adopted in paragraph 13. Adopted in paragraph 14. Adopted in paragraph 15. Adopted in paragraph 16. Adopted in paragraph 17. Adopted in paragraph 18. Adopted in paragraph 19. Adopted in paragraph 20. Rejected; contrary to evidence. Adopted in paragraph 21. Adopted in paragraph 22. Adopted in paragraph 24. While the evidence taken as a whole might lead to this conclusory fact, this proposal is rejected. The facts surrounding the individual incidents are clear enough to permit the hearing officer to conclude that the Respondent knew or should have known about the conduct and was negligent in his supervision. Rulings on Proposed Findings of Fact Submitted by Respondent Respondent's repeated proposal that there was no evidence that Respondent had knowledge of the incidents is modified and adopted in paragraphs 29 and 30. Adopted. Rejected - argument. Reject first and last sentence as argument or summarization. Adopts second sentence in paragraph 25. Rejected; contrary to evidence. Description and nature of picnic area is addressed in paragraph 3. Adopted in paragraphs 2 and 3. Adopted in paragraph 4. Adopted in paragraph 5. 9&10. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 8. Adopted in paragraph 9. Adopted in paragraph 10. Adopted in paragraph 11. Adopted in paragraphs 12 and 14. Adopted in paragraph 14. Adopted in paragraphs 15, 16, 17, 18 and 20. Adopted in part in paragraph 29. Rejected in part as contrary to the evidence. Adopted in part in paragraph 20. Adopted in paragraphs 21, 22 and 24. Rejected as to Dowd and Taylor because they worked earlier shifts during the day when a different group of patrons were at the bar. Rejected as to Gary Gordon because of credibility. Rejected as contrary to evidence. Rejected as cumulative summary of specific findings relating to each charge. First sentence: Similar findings were made in paragraph 23; the remainder is rejected based upon lack of credibility. Adopted in paragraph 28. COPIES FURNISHED: Mr. Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927 Mr. James Kearny Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Bell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 David W. Dyer, Esquire Post Office Box 3648 Indiatlantic, Florida 32903
Findings Of Fact Respondent Mary L. Alexander holds beverage license No. 28-0041, Series 2-COP. Under this license she sells beer and wine at Whisper's Cafe, a business which she has owned and operated for approximately two years in Bunnell, Florida. (Testimony of respondent) Respondent employs a cook and a part-time bartender, who also serves as a disc jockey. The cook works primarily in the kitchen. At around 8:30 P.M., the bartender begins operating the juke box and remains in the dance area of the licensed premises, an area separated by a wall from the rest of the premises. Respondent (or a substitute bartender), works primarily in the bar and pool table area, which is located between the dining and dance areas of the premises. (Testimony of respondent) The evidence establishes, without contradiction, that two of respondent's bartenders committed three separate drug violations on the premises during April and May, 1982. Two violations involved bartender Ronney Locke, one involved bartender Fred Austin. I. Two Drug Violations by Bartender Locke On April 30, 1982, Maria Scruggs, a DABT Beverage Officer, entered Whisper's Cafe in an undercover capacity. Approximately twenty customers were on the premises--four or five were standing at the bar. Officer Scruggs ordered a drink at the bar. Several minutes later, Thomas Alexander, respondent's son, approached her and a conversation ensued. She asked him if he had any marijuana she could buy. He replied that he did not, and then referred the question to bartender Ronney Locke. Mr. Locke, offering to check around the bar, approached Clarence Lorick, a customer, who then delivered a small quantity of marijuana to Mr. Alexander for $5.00. Mr. Alexander, seated at the bar, rolled a marijuana (cannabis) cigarette in his lap and gave it to Officer Scruggs, who then left the premises. The cigarette was rolled in an open manner and in plain view of others on the premises. Respondent was not on the premises during this transaction and was unaware of its occurrence. (Testimony of Scruggs, respondent, P-1) On May 7, 1982, Officer Scruggs reentered the licensed premises in an undercover capacity. She began to talk, separately, with respondent and bartender Locke. She asked Mr. Locke if any cocaine or marijuana was available. He replied that he would check with the other customers for a $5.00 bag of marijuana. He approached Ginnie Lee Caskins a customer, Who then approached Officer Scruggs and handed her a manilla envelope containing marijuana (cannabis). Officer Scruggs said nothing and handed her $5.00. This exchange of money and marijuana took place under the bar and out of view of the other customers on the premises. Although respondent was on the premises, she was not close by and did not see the exchange or overhear the conversation. (Testimony of respondent, Scruggs, P-2) II. Drug Violation by Bartender Austin On May 12, 1982, Alphonso Junious, another DABT Beverage Officer, entered the licensed premises in an undercover capacity. He asked bartender Fred Austin, an employee of respondent, if he knew where he could buy some marijuana. Mr. Austin walked to the door and summoned Clarence Lorick, who then entered the premises. After a brief conversation, Mr. Lorick handed a small quantity of marijuana (cannabis) to Officer Junious, who, in turn, handed him $5.00. This exchange took place in a secretive manner and occurred after respondent had left the premises. She was also unaware of this drug transaction. (Testimony of Junious, respondent, P-3) III. Drug Violation by Respondent DABT also contends that on May 14, 1982, respondent unlawfully aided, counseled, or procured the sale or delivery of marijuana (cannabis) to Officer Junious. Respondent denies it. The evidence, although conflicting, substantiates DABT's contention. On May 14, 1982, Officer Junious reentered the licensed premises in an undercover capacity. He purchased a beer from respondent, who was tending bar. While seated at the bar, he overheard respondent tell an unidentified female patron that she (respondent) had been to a musical concert and had to leave to get something to smoke. Officer Junious, construing this to mean marijuana, said to her, "I could use something to smoke too," or words to that effect. Respondent replied, "Boot got some." (Testimony of Junious) Officer Junious knew who "Boot" (Henry Brown) was, having previously purchased marijuana from him in an undercover capacity. Officer Junious then left the premises, found "Boot" outside, and purchased a small quantity of marijuana (cannabis) from him for $5.00. (Testimony of Junious) These findings are based on the testimony of Officer Junious. Respondent denies that she said "Boot got some" or that she had any conversation with Officer Junious on May 14, 1982. She also denies that she said she could use something to smoke, and states that she does not smoke either tobacco or marijuana. Taking into account her bias and interest in the outcome of this proceeding, the testimony of Officer Junious is more credible and is accepted as persuasive. IV. Respondent's Supervision of the Premises Respondent, periodically, reminded her employees that no marijuana was allowed on the premises. She took no other action to ensure that drug violations would not occur on the premises. (Testimony of respondent On May 27, 1982, arrest warrants were executed by DABT and the licensed premises was searched. No illicit drugs were found on the premises. (Testimony of Scruggs) There is no evidence that marijuana has ever been smoked in the licensed premises. Neither does the evidence support a finding that respondent knew that marijuana had been, or was being, sold or delivered on the premises. The four separate drug violations committed on the licensed premises, and the manner in which they were committed, however, support a conclusion that these violations of law were fostered, condoned, or negligently overlooked by respondent, and they occurred, at least in part, due to respondent's failure to diligently supervise her employees.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license be suspended for a period of 90 days. DONE and ORDERED this 10th day of December,1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1982.
Findings Of Fact At all times material hereto, Respondent, Horace Clare, was the holder of alcohol beverage license #63-01368, series 2-COP, for the licensed premises known as Campbell's Restaurant situated at 1305 North 11th Street, Haines City, Polk County, Florida. Petitioner used an undercover agent, C.I., who was directed to attempt to purchase controlled substances from the licensed premises. On January 24, 1992, at approximately 7:35 p.m., C.I. contacted an individual to ascertain if "weed" was available to purchase at the licensed premises. Sgt. Spicer of the Haines City Police Department was assigned to insure that the confidential informant, "Snoops" was under constant eye surveillance. Spicer was given $20 by the Haines City Police Department while under the surveillance of Sgt. Spicer. Spicer searched the C.I.'s person and insured that the C.I. was not given any additional monies. The C.I. entered the licensed premises and was introduced to a woman whose nickname was "Snoops", later known as Mary Allen. The C.I. went directly to the kitchen and tendered Snoops the $20 dollar bill she was given by Spicer. Snoops went into the kitchen area and returned with a small packet of marijuana in exchange for the $20 dollar bill. The C.I. left the licensed premises and returned to the area of Officer Alexander of the Haines City Police Department. The C.I. was again searched and possessed only the marijuana which she gave to Spicer. On January 25, 1992 at approximately 7:17 p.m., the confidential informant again met with Sergeant Spicer for the purpose of making a controlled purchase of marijuana. Sergeant Spicer searched and observed the confidential informant in the same manner as she had on the evening of January 24, 1992. Spicer gave the C.I. $20.00 and watched the C.I. from her vehicle until she entered the licensed premises. The C.I. contacted Snoops, tendered her $20.00 whereupon Snoops went into the kitchen area and returned with a small packet of marijuana which she retrieved from her purse. Snoops exchanged the marijuana for the $20.00 that the C.I. had given her. The C.I. left the licensed premises and immediately contacted Sergeant Spicer whereupon she tendered the marijuana to her. On or about January 26, 1992 at approximately 6:53 p.m., the confidential informant again met with Sergeant Spicer of the Haines City Police Department. She was searched to determine if she had any controlled substances on her person and also to ascertain that she had no additional monies. Sergeant Spicer again gave the C.I. $20.00 for the purpose of making a controlled purchase of marijuana from the licensed premises. Upon entering the licensed premises, the C.I. met with Respondent and handed him $20.00. Respondent reached under the cash register and retrieved a small packet of marijuana from a brown bag which he then gave to the C.I. The C.I. left the licensed premises and turned the marijuana over to Sergeant Spicer. The C.I. described Respondent and identified him at the hearing. Sergeant Spicer next directed Officer Mervin Stewart to go to the licensed premises and ascertain the identity of Respondent. Officer Stewart, as directed, encountered Respondent and asked him for identification. Respondent identified himself to officer Stewart as the owner of the licensed premises. On January 29, 1992, the Haines City Police Department executed a search warrant at the licensed premises with the assistance of the Polk County Sheriff's Office. An employee named Mary Allen a/k/a "Snoops" was present during the search. The search resulted in the discovery of 21 packets of marijuana, five packets of rolling papers and three packets of cocaine and several "baggies". In addition, several containers of money were found as well as $120.00 that was found in the wicker purse with the marijuana. A narcotics dog assisted in the search of the licensed premises for the presence of controlled substances. The narcotics dog alerted to the presence of a controlled substance in an envelope containing money from the licensed premises evidencing that the subject money had been in contact with controlled substances. Each of the packets purchased by the C.I. were tested with a presumptive field test by Sergeant Spicer. Each packet tested positive for the presence of marijuana. Likewise, each packet had the odor, appearance and packaging common to marijuana. Each packet was sent to the Florida Department of Law Enforcement for analysis and each packet tested positive for marijuana, a controlled substance. Likewise, the cocaine from the licensed premises also field tested positive for the presence of cocaine and upon subsequent laboratory analysis, tested positive for cocaine. Rolling papers are commonly used to roll marijuana cigarettes or loose tobacco cigarettes. No loose tobacco was found on the licensed premises. The empty baggies seized in the house and the licensed premises were identical to those used to package marijuana. Consequently, the rolling papers and the baggies are drug paraphernalia. The licensed premises is 651 feet and 8 inches from the Bethune Elementary School in Haines City. A consensual seal search was conducted of Respondent's home which was shared by Mary Allen. That search resulted in the seizure of fifty packets of marijuana, a number of empty baggies and a scale. The marijuana was located in the master bedroom. Respondent has lived with Mary Allen for ten years. At the hearing, Respondent also acknowledged that he lived with and worked with Mary Allen whose nickname is "Snoops".
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order revoking Respondent's alcoholic beverage license at the licensed premises, to wit, Horace Clare, d/b/a Campbell's Restaurant, license number 63-01368, Series 2-COP. DONE and ORDERED this 11th day of January, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 1993. COPIES FURNISHED: NANCY C WALLER ESQ ASST GENERAL COUNSEL DEPT OF BUSINESS REGULATION 725 S BRONOUGH ST TALLAHASSEE FL 32399 1007 HORACE CLARE CAMPBELL'S RESTAURANT 1305 N 11TH ST HAINES CITY FL 33844 RICHARD W SCULLY DIRECTOR DIVISION OF HOTELS & RESTAURANTS 725 S BRONOUGH ST TALLAHASSEE FL 32399 1007 DONALD D CONN ESQ GENERAL COUNSEL DEPT OF BUSINESS REGULATION 725 S BRONOUGH ST TALLAHASSEE FL 32399 1007
The Issue Whether respondent's alcoholic beverage license should be revoked or otherwise disciplined on the grounds stated in petitioner's Notice to Show Cause, as amended.
Findings Of Fact The Respondent Respondent corporation holds alcoholic beverage license No. 23-00739, Series 4 COP, issued by the DABT, and operates a bar known as Doc Watson's ("the licensed premises") at 4591 Northwest 36th Street, Miami Springs, Florida. Entertainment is provided by female dancers who perform to jukebox music. (Testimony of Harden; P-1, R-1.) As to Count I II. Sale, Use, or Possession of Drugs on the Licensed Premises On November 8, 1981, at approximately 12:30 a.m., undercover Beverage Agent Donald Chastain purchased cocaine for $70 from Mike Pack, a doorman employed by respondent. The sale took place in the storeroom at the east entrance to the west bar on the licensed premises. During the drug transaction, Pack remarked that he "had been turning them [cocaine sales] over like hotcakes- -10 to 12 a day." (Testimony of Chastain.) On November 14, 1981, during the evening hours, Agent Chastain purchased a clear plastic baggie of cocaine (a white powder) for $70 from doorman Pack. The transaction took place, in plain view, at the east entrance to the west bar on the licensed premises. (Testimony of Chastain.) On November 21, 1981, during the evening hours, Agent Chastain again purchased a clear plastic baggie of cocaine for 565 from doorman Pack. The sale took place at the east entrance to the west bar on the licensed premises, and in plain view of Carlos Santana (known as "Manny") , a male patron. (Testimony of Chastain.) On December 11, 1981, during the evening hours, Agent Chastain again approached doorman Pack at the east entrance to the west bar on the licensed premises and offered to buy cocaine. Pack replied that he had none but would try to find some; he then left his post at the bar entrance, walked to the pool table area where he talked with Sonya Olitsky, a female dancer, then returned to Agent Chastain. Doorman Pack then sold a clear plastic baggie containing cocaine to Agent Chastain for 570. (Testimony of Chastain.) On December 21, 1981, during the evening hours, Agent Chastain again approached doorman Pack at the east entrance to the licensed premises and asked to purchase cocaine. Pack replied that he had none but could obtain some; a little later, Agent Chastain approached Pack again, but he still did not have any cocaine available. Doorman Pack then offered to obtain some from another employee on the licensed premises; after Chastain gave him 570, Pack left his post and, a few minutes later, returned and gave Agent Chastain a clear plastic baggie containing cocaine. The drug exchange took place in plain view at doorman Pack's duty station, the east entrance to the bar. (Testimony of Chastain.) On February 10, 1982, doorman Pack, off duty at the time, approached Agent Chastain on the licensed premises and asked if he was looking for cocaine. Chastain said yes; Pack replied that it would cost 570. Chastain then gave him 570 for a white plastic baggie containing cocaine; this transaction occurred at the entrance to the east bar, in plain view of Victor Narin, the on-duty doorman. After the sale, at Pack's request, Chastain brought the cocaine to a bathroom on the premises where Pack ingested a small quantity. (Testimony of Chastain.) On February 15, 1982, during the evening hours, Agent Chastain entered the premises. Doorman Pack asked him if he wanted to buy some excellent cocaine; Chastain agreed and handed him $70 for a clear plastic baggie of cocaine. This transaction took place in plain view at Pack's duty station at the east entrance to the west bar. (Testimony of Chastain.) On February 23, 1982, Agent Chastain met doorman Pack at his duty station at the east entrance to the west bar and asked if he had any cocaine for sale; Pack replied that he had none but sent Ray Patterson, an off-duty doorman, to get Joe Hevia, a patron. Hevia told Chastain that he would need $70 "up- front"; Chastain was reluctant to agree since he didn't know Hevia. Doorman Pack then obtained a clear plastic baggie of cocaine from Benjamin Maples, 2/ a former doorman on the premises, and sold it to Chastain for $70. This transaction took place in plain view at the east entrance to the west bar. (Testimony of Chastain.) As to Count II On December 15, 1981, Agent Chastain approached Dorothy E. Zink, a dancer employed by respondent, and asked if he could buy some cocaine; she agreed. He gave her $70; she directed him to a pay telephone across from the stage area on the licensed premises where he found a small baggie of cocaine in the coin return slot. (Testimony of Chastain.) Later that evening, Agent Chastain asked dancer Zink if she knew where he could get some quaaludes; she agreed to sell him some. He handed her $12, and she told him the quaaludes would be placed in the same coin return slot of the pay telephone used earlier. He proceeded to the pay telephone and found a plastic bag containing four tablets of diazepam. (Testimony of Chastain; P-7.) On January 4, 1982, Agent Chastain approached dancer Zink on the licensed premises and gave her $70 for the purchase of cocaine. After checking elsewhere in the bar, she returned and told him that she could only find one- half a gram for $35. Thereafter, he met her by the pay telephone and, in plain view, gave him a clear plastic baggie containing cocaine. (Testimony of Chastain.) On January 21, 1982, in response to Agent Chastain's inquiry, dancer Zink agreed to sell him cocaine for $70. He slowly counted out $70 while in the stage area of the west bar of the licensed premises and in plain view of several nearby patrons. He placed the money in an address book held by dancer Zink, then ;net her at the pay telephone where she handed him a folded piece of paper containing cocaine. (Testimony of Chastain.) As to Count III On January 26, 1982, Darlene Harper, Melaine Goransky, and Linda Pryor, dancers employed by respondent, exited the west entrance of the licensed premises with purses in hand. They entered a parked vehicle where they removed from one of the purses a marijuana cigarette which they lit and passed between them. (Testimony of Johnson; P-3, P-4.) As to Count IV On February 10, 1982, during the evening hours, Agent Chastain entered the west bar of the licensed premises. Michael Stoodley, the doorman, told him that doorman Pack had some good cocaine for sale. Chastain replied that he had just bought some; Stoodley then asked Chastain to give him some. After Chastain handed him the cocaine, Stoodley entered the storeroom near the east entrance and ingested some. Upon exiting the storeroom, doorman Stoodley handed him a tablet containing methaqualone. (Testimony of Chastain.) When Agent Chastain entered the licensed premises on March 4, 1982, doorman Pack approached him and asked if he wanted to buy some cocaine for $75. Chastain declined but said he wanted to buy some quaaludes. Pack said to contact doorman Stoodley, who was then on duty at the entrance to the east bar. Agent Chastain then proceeded to the entrance and bought four methaqualone tablets from doorman Stoodley for $12. (Testimony of Chastain.) As to Count V On February 23, 1982, Benjamin Maples supplied cocaine to doorman Pack which was, in turn, sold to Agent Chastain on the licensed premises. (See paragraph 9 above.) He was, however, no longer employed by respondent, since he had been fired in October, 1981. (Testimony of Chastain, Harden, Swanfeld.) On February 27, 1982, after midnight, Agent Chastain entered the licensed premises and discussed with doormen Patterson, Pack, and former doorman Maples a cocaine purchase he had made there two days earlier. Maples then offered to sell Chastain a gram of cocaine. Chastain agreed and handed Maples $70 in return for a clear plastic baggie containing cocaine. But, when this transaction took place, Maples was not an employee of the respondent. (Testimony of Chastain, Harden, Swanfeld, Coronado.) As to Count VI On February 25, 1982, during the evening hours, Agent Chastain entered the licensed premises and asked Dale Patterson, the doorman on duty, if he knew where he could buy some cocaine. Patterson told him he would sell him one gram for $100. After Chastain balked at the price, Patterson lowered it to $80 and told him to check back with him in 15 minutes. Later, when Chastain returned, Patterson introduced him to Jack Corderra, a patron, who took him to a room separating the two bars on the licensed premises and sold him two lumps of cocaine for $80. (Testimony of Chastain.) As to Counts VII and VIII Between November 8, 1981, and March 6, 1982, illicit drugs, including cocaine, methaqualone, marijuana, and percodan (oxycodone) were kept, sold, and delivered on the licensed premises in the manner described herein. As to Count IX through XIII Pursuant to a search warrant executed on the licensed premises on March 6, 1982, respondent's employees and their possessions were searched. Percodan, containing oxycodone, was found in the purse of dancer Cynthia Lytle; marijuana was found in the purse of dancer Margaret McLain; diazepam was found in the purse of dancer Nicole Moon; marijuana was found in the purse of dancer Deronda Doolittle; and a packet of cocaine was found on waitress Ruth Robinson. (Testimony of Houston, Chastain.) III. Respondent's Management and Supervision of the Licensed Premises A. The No-Drug Policy Both before and during the time in which these drug transactions occurred on the licensed premises, respondent announced a no-drug policy to its employees. It posted notices and distributed memoranda prohibiting the possession, use, or sale of any illicit drugs on the premises; employees were told to report any drug violations to the manager and warned that violation of the no-drug policy would result in immediate dismissal. (Testimony of Harden; R-1, R-3.) During the time in question, respondent was aware that complaints had been made to DABT about narcotic violations occurring on the licensed premises. By letter to the Dade County Liquor Consortium, Inc., dated November 2, 1981, DABT expressed a hope that the owners of Doc Watson's, and several other named licensees, "will strictly supervise the conduct of their employees (P-2.) Respondent requested information concerning the complaints; DABT did not provide the requested information because it was conducting an ongoing drug investigation of the premises and did not know, at that time, whether management was involved in illicit drug activities. Respondent also sought advice from Miami Springs police officers on how to control illegal drug activities. (Testimony of Harris, Lifset; P-2, R-21.) Respondent took several steps to implement its no-drug policy. In February, 1981, it hired Larry Williams, a former police officer, as its-new night manager. Williams was instructed to eliminate drug violations on the premises; during the next several months he caught four employees possessing, using, or selling drugs and summarily fired them. Between 1980 and 1981, several other employees had been fired because of suspected use of drugs on the licensed premises. When customers were observed passing illicit drugs, they were asked to leave the premises. (Testimony of Williams, Lifset, Milligan, Sayer, Harden; R-5, R-6, R-7, R-8, R-9.) Respondent required its employees to keep their personal belongings in lockers provided on the premises. The combinations to the locks were known to respondent, and it would occasionally spot search the lockers for illicit drugs. (Testimony of Harden, Hoffman.) Respondent reiterated its no-drug policy at its staff meetings held every four to six weeks. (Testimony of Harden, Lifset, Williams.) Neither James Harden, sole stockholder of the respondent corporation, nor any of respondent's managers were personally involved in any of the illicit drug violations described in Part II above. H. Widespread and Persistent Drug Trafficking on the Licensed Premises Despite respondent's announced no-drug policy, employees, during the time in question, engaged in illicit drug activities on the licensed premises in a persistent and practiced manner. Beverage Agent Chastain was successful in purchasing illicit drugs during one-half of his 25-30 visits to the licensed premises. Employees who did not have drugs available at the time often helped him locate and purchase drugs from others on the premises. (Testimony of Chastain, Houston.) These drug transactions were not isolated events. Drug trafficking on the premises was widespread and occurred in plain view of other employees and patrons. Drugs were sold and talked about in an open manner. For instance, on March 2, 198.2-- when Agent Chastain stepped from his car in respondent's parking lot--doorman Pack called down from an apartment on the second floor above the licensed premises and, in a loud voice, asked him if he wanted some white powder, meaning cocaine. (Testimony of Chastain.) Many of the 75 employees of respondent were involved or implicated in the drug transactions described in Part II above. Out of a total of six doormen, three sold drugs to Agent Chastain. Of approximately five waitresses employed by respondent, two were arrested for possessing illicit drugs on March 6, 1982. Of the 30-35 dancers, at least five engaged in illicit drug activities on the premises between November, 1981, and March, 1982. (Testimony of Chastain, Houston.) C. Respondent's Failure to Diligently Enforce its No-Drug Policy By November, 1981, the owner of respondent was aware that illicit drug activities had been occurring on its licensed premises. Earlier in the year he had hired a former policeman as night manager to control such activities; several persons had been fired for illicit drug activities on the premises. (Testimony of Harris, Harden, Williams.) Respondent was also aware of concrete steps--suggested by DABT--which could be taken by bar owners to prevent illicit drug activity on their premises. 3/ Those steps included giving polygraph examinations to employees, forbidding employees access to their personal belongings while on duty, checking the background of prospective employees for drug history, strictly enforcing rules of conduct for employees, and periodically searching employees. (Testimony of Harris, Harden.) Under these circumstances, respondent failed to diligently supervise its employees and enforce its no-drug policy between November, 1981, and March, 1982. Employees who violated the no-drug policy, such as Darlene Harper, Melanie Goransky, and Linda Pryor (see paragraph 14 above) , were not immediately dismissed. Neither was dancer Dorothy Zink, although day-manager Marilyn Lifset suspected her of selling drugs. Employee searches and spot checks were haphazard and infrequent: Jack Wandel, a bartender for six years, and Sandra Sayer, a waitress for 3 1/2 years, had never been searched; Ann Hoffman, a dancer for five months, had never been searched; Sandra Olitsky, a dancer for two years, and Kathy Mitler, a bartender for eight months, had each been searched once. (Testimony of Chastain, Lifset, Wandel, Sayer, Hoffman, Olitsky, Mitler.) Night-manager Larry Williams conscientiously enforced the no-drug policy between February and October, 1981. A former police officer, Williams watched his employees closely and fired employees he suspected of drug trafficking. But, manager Williams left respondent's employment in October, 1981, before the drug violations in question here occurred. There is no evidence to indicate that his eventual replacement, who has since left respondent's employment, enforced the no-drug policy with equal commitment. Most of the illicit drug activities encompassed by the charges at issue occurred during the night shift. (Testimony of Williams, Harden, Chastain.) Respondent neglected to take reasonable steps to effectively carry out its no-drug policy. Although it knew illicit drug activity had occurred on the premises it: (1) failed to conduct frequent and thorough spot searches of its employees; (2) failed to promptly dismiss employees who violated the policy; (3) failed to consistently investigate the background of prospective employees; (4) failed to administer polygraph examinations; (5) failed to prohibit employee access to personal belongings while on duty; and (6) failed to closely monitor and supervise its nightshift employees for the purpose of detecting illicit drug activity. IV. Prior Record Licensee has never before been cited for any violation of the Beverage Law. (Testimony of Harden.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license be suspended for a period of 90 days, with credit given for any period of suspension effected by the Emergency Order of Suspension executed in March, 1982. DONE AND RECOMMENDED this 2nd day of April, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1982.
The Issue This case concerns the issue of whether the Respondents' beverage license should be suspended, revoked or otherwise disciplined for permitting their licensed premises to be used for the purpose of prostitution and for gaining profit from that prostitution. At the formal hearing, the Petitioner called as witnesses, Beverly Fraley, Alfred Stone, and Raphael Grulau. The Respondents presented no evidence. The Petitioner offered and had admitted over the objection of the Respondent, one tape recording of conversations which occurred inside the licensed premises as a part of the undercover investigation by the Hillsborough County Sheriff's Office. Counsel for the Petitioner and counsel for the Respondents submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that these proposed findings and conclusions are inconsistent with the findings and conclusions contained in this order, they were considered by the Hearing Officer and rejected as not being supported by the evidence or as being unnecessary to the resolution of this cause.
Findings Of Fact At all times material to this proceeding, Katherine J. and Guy H. Sutton were the holders of a valid, current beverage license No. 39-1792, Series 2COP. This license was issued to a licensed premises called Guy's Tavern located on Highway 301, South, in Riverview, Florida. On May 12, 1983, Detective Beverly Fraley of the Hillsborough County Sheriff's Office, went to the licensed premises in an undercover capacity to investigate possible prostitution activity. On this particular evening, Detective Fraley was accompanied by two other detectives of the Hillsborough County Sheriff's Office in a backup capacity. Prior to entering the licensed premises, Detective Fraley was fitted with a body bug for the purpose of recording any conversations that she might have in the licensed premises during the course of the investigation. When Officer Fraley arrived, the two backup detectives were inside the licensed premises shooting pool. Upon entering the licensed premises, Officer Fraley went to the bar and ordered a drink. After obtaining her drink, she was approached by a white male, who called himself "Stogie." While talking with Stogie, another white male, who called himself "Turkey" approached Officer Fraley from behind and placed his arms around her. She had never met Turkey before. Officer Fraley pushed Turkey away and said "Keep your hands off the merchandise." Shortly after her encounter with Turkey, Officer Fraley began shooting pool with Stogie and the two undercover detectives. After a short time, she left the licensed premises with Detective Grulau and after a few minutes the two of them reentered the licensed premises. After reentering, Officer Fraley went to the ladies' rest room and when she came out, she was called over to the bar area by the owner, Guy Sutton, who was behind the bar. As Officer Fraley approached the bar, Mr. Sutton stated, "If you're going to fuck here you've got to pay me." Officer Fraley asked what he meant and he told her that she would have to pay him $5.00 for every trick" she took out of the bar. "Trick" is a slang or street term used to describe an act of prostitution. Mr. Sutton then identified himself as the owner and said that the other women in the bar also paid. Officer Fraley then gave Mr. Sutton a $5 bill. After paying Mr. Sutton, Officer Fraley turned to the bartender, Irene Springer, who was present during this conversation and asked if in fact the other women in the bar were required to pay. Irene Springer stated that the other women in the bar did in fact have to pay $5.00 per trick and a group of white females sitting at a table near the bar responded, "That's right honey." Later that evening, Officer Fraley left with the other undercover detective. When they returned, Guy Sutton was in the pool room area. Officer Fraley intentionally did not go over to Sutton. Shortly after she returned, Sutton came over to her and told her that she owed him another $5.00. He then told her that she would be better off paying him $25.00 per week rather than $5.00 per trick. He also stated that she had the potential to make $300 or $400 per week in his place. Guy's Tavern has a reputation in the community as a bar where prostitutes can be picked up.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered revoking Respondents' beverage license No. 39-1792, Series 2COP. DONE and ORDERED this 30th day of December, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
