Findings Of Fact At all times material hereto, Respondents, Alejandrina Mora and Felix Aristides, held alcoholic beverage license number 23-4816, series 2-APS, and 23- 8295, series 2-COP, for the premises known as Las Tunas Market and Cafeteria, 628-30 6th Street, Miami Beach, Florida. In March 1988, Petitioner, Division of Alcoholic Beverages and Tobacco (DABT), in conjunction with the Miami Beach Police Department (MBPD), began a narcotics investigation at the licensed premises. Previously, Sergeant Tom Hunker and Detective Walter Campbell of the MBPD had made several drug arrests at the licensed premises, and had warned the owners to stop such activities on their premises or their licenses would be subject to revocation. On March 8, 1988, DABT Investigator Oscar Santana, operating undercover, entered the licensed premises. During the course of his visit, he observed a male patron known as Junior sell what appeared to be rock cocaine to several persons both on and off the licensed premises. After observing the foregoing transactions, Investigator Santana approached Junior and asked him if he had any more to sell. In response, Junior handed Santana two crack cocaine rocks, for which Santana paid Junior $20. This transaction occurred in plan view of respondents' employee Gonzalo. 1/ On March 9, 1988, Investigator Santana returned to the licensed premises. Upon entering, Santana was approached by Junior who inquired as to whether he would be interested in purchasing some more cocaine. Santana responded affirmatively, and handed Junior $20. Junior then left the premises for a short time, and when he returned handed Santana two crack cocaine rocks. This transaction occurred at the counter, and in plain view of respondents' employee Gonzalo. After the foregoing transaction, Investigator Santana was approached by another patron known as Paul, who inquired whether he would be interested in buying some cocaine. Santana agreed to buy from Paul if he brought it to the licensed premises. Paul left the premises, returned shortly thereafter, and met Santana just outside the door. At that time, Santana paid Paul $30 in exchange for two crack cocaine rocks. During the course of this transaction, respondents' employees Ricky and Gonzalo were nearby. On March 10, 1988, Investigator Santana returned to the licensed premises. During the course of his visit, Santana met with a patron known as Charlie, who offered to sell him some cocaine. Santana handed Charlie $20 and observed him leave the premises, walk across the street, and hand the money to another individual. Shortly thereafter, Charlie returned to the licensed premises and delivered the cocaine rocks to Santana. The exchange between Santana and Charlie took place in plain view and in the presence of respondents' employee Nene. On March 17, 1988, Investigator Santana returned to the licensed premises. Also on the premises that day were DABT Investigators Jenkins and Elkin, operating separately from Santana to provide backup for him. As he entered the premises, Santana seated himself with Junior and respondents' employee Ricky at a table by the front door. There, in front of Ricky, Santana purchased a cocaine rock from Junior for $20. Ricky, suspicious of Jenkins and Elkin, two female non-latins, warned Santana to be careful because the two females were police officers. On March 18, 1988, Investigator Santana returned to the licensed premises. Investigators Jenkins and Elkin, again operating separately from Santana, were also on the premises that day. Upon entering the premises, Santana was approached by a patron known as Reyna who inquired whether he was interested in purchasing some cocaine. Santana responded yes, handed Reyna $25, and Reyna left the premises. After Reyna left the premises, Santana seated himself at the front table. When Reyna returned, she sat down at the table with him and delivered, above the table, two cocaine rocks. This transaction took place in front of respondents' employee Ricky, who again warned Santana to beware of the police officers (Investigators Jenkins and Elkin). Later that day, Santana gave Junior $20 to purchase cocaine for him. When Junior delivered the rock cocaine to Santana it was done in plain view and in the presence of respondents' employees Gonzalo and Ricky. During the course of this visit to the premises, Investigators Jenkins and Elkin, also undercover, were seated separately from Santana. At some point they were joined by a male patron who later gave them two marijuana cigarettes. The investigators retired to the women's bathroom and burnt a marijuana cigarette to see what, if any, response it would bring. While one of respondents' employees entered the bathroom after they left, the aroma of marijuana brought no response. On March 21, 1988, Investigator Santana returned to the licensed premises. Upon entry, Santana, respondents' employee Gonzalo, and two black latin male patrons were the only persons present. These patrons approached Santana and inquired if he was interested in purchasing marijuana. Santana responded yes, and paid the men $20 for approximately one ounce of marijuana. This transaction occurred in plain view, and in the presence of Gonzalo. On March 24, 1988, Investigator Santana returned to the licensed premises. During the course of his visit he met with Junior inside the bathroom, and purchased two cocaine rocks for $40. On March 25, 1988, Investigator Santana returned to the licensed premises. Santana was approached by Junior who inquired whether he was interested in purchasing some cocaine. Santana handed Junior $40, and Junior left the premises to get the cocaine. Upon his return, Junior placed the cocaine rocks on the counter in front of Santana. This transaction occurred in plain view, and in the presence of respondents' employees Gonzalo and Ricky. All of the events summarized in the proceeding paragraphs took place at the licensed premises during normal business hours. At no time did respondents' employees express concern about any of the drug transactions. In fact, the proof demonstrates that all of the employees knew that marijuana and cocaine were being sold on the licensed premises on a regular, frequent and flagrant basis. Neither respondents, who were on notice of such activities, nor any of their employees, took any action to prevent, discourage, or terminate the sale of any controlled substance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order revoking alcoholic beverage license number 23-4816, series 2-APS, and alcoholic beverage license number 23-8295, series 2-COP, issued to Alejandrina Mora and Felix Aristid d/b/a Las Tunas Market and Cafeteria, for the premises located at 628-30 6th Street, Miami Beach, Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of April, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1988.
The Issue This case arises out of a notice to show cause served upon the Respondent by the Division of Alcoholic Beverages and Tobacco alleging that Beverage License No. 27-92 should be suspended, revoked or otherwise disciplined for five separate counts involving drug sales on the licensed premises. As a basis for its proof, Petitioner relied upon a stipulation entered into with the Respondent and a Division of Alcoholic Beverages and Tobacco Case Report which was admitted without objection. Mr. Charles Andrews testified on behalf of himself as licensee. A copy of the notice to show cause was admitted as Joint Exhibit 1 and the Petitioner of foreign and had admitted without objection one exhibit, the case report of the Division of Alcoholic Beverages and Tobacco.
Findings Of Fact Charles D. Andrews, trading as Odom's Bar, is the licensee of Beverage License No. 27-92, License Series 4-COP. The licensed premises is located on Highway 29 in Century, Escambia County, Florida. The Petitioner and Respondent, having stipulated to the truth and accuracy of those facts alleged in the notice to show cause, and based upon that stipulation, the undersigned Hearing Officer finds those facts set forth in A through F of this paragraph: On May 24, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate the laws of the State of Florida by delivering a controlled substance, to wit: cannabis to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews, contrary to Florida Statute 893.13 within Florida Statute 561.29. On June 14, 1982, Johnny Andrews, the employee of Charles D Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, cannabis, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews. On June 17, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, cannabis, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews. On July 11, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, LSD, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews. On August 6, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, LSD, to Actent P. A. Blackman while on the licensed premises of Charles D. Andrews. A. The negotiations and discussions about the May 24, 1982, transaction occurred inside Odom's Bar and the delivery took place through the drive-in window located on the north side of the licensed premises. On June 14, 1982, Beverage Officer Blackman drove to the drive-in window and asked Johnny Andrews if he was holding any pot. Johnny Andrews stated he was holding a 35 cents bag. After a short discussion about possible purchase of a larger quantity, Officer Blackman purchased the bag of marijuana for $35.00. The plastic bag of marijuana was in a brown paper bag and was handed to Officer Blackman through the drive-in window. The delivery of the marijuana to Officer Blackman on June 17, 1982, also took place at the drive-in window. Johnny Andrews handed Blackman a brown paper bag containing a Miller and a plastic bag of marijuana. On July 11, 1982, Officer Blackman observed three patrons smoking a marijuana cigarette in Odom's Bar, and this activity was observed. by the barmaid on duty. No attempt was made to stop the activity. Officer Blackman was offered the marijuana cigarette and he pretended to smoke it. At this time, Johnny Andrews approached Officer Blackman and offered to 7 sell him some "acid" (LSD). Officer Blackman agreed and was instructed to drive around to the drive- in window. He did so and the delivery of the "acid" took place through the drive-in window. On August 5, 1982, Officer Blackman, after being in the licensed premises, drove up to the drive-in window where Johnny Andrews offered to sell him some "acid" (LSD) Officer Blackman agreed to purchase and agreed to return on August 6 to pick up the "acid". on august 6, 1982, Officer Blackman returned to the drive-in window where Andrews handed him a bag containing six hits of acid. At the time of the conversations and purchases on June 14, August 5, and August 6, 1982, Johnny Andrews was on duty and working at Odom's Bar. Mr. Charles Andrews has owned Odom's Bar for the past five years and worked for the two previous owners. He began working at Odom's Bar 20 years ago. The bar is managed by Respondent and his wife. Johnny Andrews, referred to in the stipulation above, is the son of Mr. and Mrs. Charles D. Andrews, and during the time period of the incidents set forth in Paragraph 1, was working as an employee at the bar. This was the first summer he had worked at the bar. He was working while he was home from college, and has not been allowed to work at the bar since August, 1982, when he was arrested. Generally, Johnny Andrews would relieve Mr. and Mrs. Andrews and they would leave the bar while he was working. The Respondent, Charles D. Andrews, had no knowledge of the drug transactions his son was involved in. Prior to the incidents in question, Odom's Bar was operated by Mr. and Mrs. Andrews with the help of four women whom they employed. Mr. Andrews had previously given instructions to his employees that they were not to allow drugs of any type to be used or sold on the premises. On the date of Johnny Andrews' arrest, agents for the Division of Alcoholic Beverages and Tobacco thoroughly searched the licensed premises and found no drugs. The clientele of Odom's Bar is primarily middle- aged persons. Prior to the incidents described in Paragraph 1 above, the licensee, Charles Andrews, had had no other violations of the law or drug related problems at the licensed premises. Once Mr. and Mrs. Andrews were notified of the charges and arrest warrant for their son, they cooperated with the police and also aided them in completing their arrest of Johnny Andrews. Although the Respondent testified that he had cautioned his employees against drugs on the premises, there was no evidence that he took any steps to ensure that the premises were being properly supervised and legally operated in his absence. There was no arrangement or plan whereby the licensee monitored what was occurring at the licensed premises in his absence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That a Final Order be entered finding the Respondent in violation of Florida statute 561.29, imposing a civil penalty of $1,000,and suspending Respondent's beverage license for a period of 60 days. DONE and ENTERED this 26th day of April, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1983. COPIES FURNISHED: William A. Hatch, Esquire Mr. Howard N. Rasmussen Department of Business Director, Division of Alcoholic Regulation Beverages and Tobacco 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Mr. Charles D. Andrews Mr. Gary Rutledge Highway 29, Odom's Bar Secretary, Department of Business Century, Florida Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issues presented are the product of an administrative complaint/notice to show cause placed against Respondent by Petitioner pertaining to 19 separate allegations of possession, sale-delivery of controlled substances, within the meaning of Chapter 893, Florida Statutes. The transactions were allegedly made by agents, servants, or employees of Respondent. The activities by those individuals, i.e., agents, servants, or employees are allegedly tantamount to keeping or maintaining a public nuisance on the licensed premises, to wit: maintaining a building or place which is used fob the keening, selling, or delivery of controlled substances defined in Chapter 893, Florida Statutes. As a result of the accusations, Respondent is accused of violating Subsections 561.29(1)(a) and (c), Florida Statutes.
Findings Of Fact Respondent corporation operates a business known as the Act I Lounge, which is located at 290 Seventh Avenue and U.S. Highway 19 North, Clearwater, Pinellas County, Florida. Brewer Miller is the sole owner of the Respondent corporation and is the president of that concern. The corporation holds an alcoholic beverage license, No. 62-508, Series 4-COP issued by Petitioner allowing the sale of alcoholic beverages in the subject business premises. In the month of April, 1982, Sherie Morel, Tina Belcher, Robin Herro, Mitzi Stevens, and Chris Goodman worked in the licensed premises as dancers. These performances took place in an area in the licensed premises where a raised platform was located. The purpose of the dancing was to entertain the patrons and the dancers solicited "tips" from the patrons. Respondent corporation did not pay a salary to the dancers. The dancers performed with the permission subject to dismissal by officials within the Respondent corporation, pursuant to verbal agreements between management and performers. Brewer Miller and managers who worked at the Act I Lounge established criteria for costume requirements for the dancers; content and manner of dances performed; and frequency and length of each dance performance. The criteria were designed to avoid violation of State laws and county ordinances related to dress. The dancers could choose their costumes within those guidelines. Ordinarily, the dancers provided their own choice of music. In addition to dances performed on stage, the dancers would dance at the table of patrons within the establishment and would dance while seated on the laps of patrons. This latter performance is known as a "lap dance". The routines, performed for the benefit of individual customers, were compensated for by payment sought from those particular customers. The dancers were also entitled to discounts on alcoholic beverages purchased beyond a certain number. The effect of the arrangement which the Respondent had with the dancers was one which allowed the dancers to be compensated by patrons and the Respondent to gain the benefits of having patrons in the bar to observe the dancing and to consume alcoholic beverages. Finally, should any dancer be caught with drugs or selling drugs, she would be barred from admission to the licensed premises. In pursuit of the Respondent's drug policy in the premises, a barmaid, identified as "Donna", had been dismissed for using drugs, based upon her appearance of being under drug influence and having been found with a syringe in a napkin. This occurred in 1981. An individual associated with the bar employment identified as Pam Fletcher had been dismissed for drug related matters. Brewer Miller had dismissed one Cally Russell from employment at the Act I Lounge based upon information to the effect that she sold methaqualone; his observation of her handing something to a customer suspected of being that substance; and her failure to show whether the substance was in fact a drug. In addition, around 1:30 a.m. on April 25, 1982, the manager in the Act I Lounge had summoned the Pinellas County Sheriff's Office to remove a patron based upon the fact that the customer had been observed with drugs in the restroom area. Robin Herro, one of the dancers, was in the restroom facility at the time the customer was observed with the drugs. She did not have drugs on her person. Consequently, Miller made the judgment to fine Robin Herro as opposed to removing her from the licensed premises, with the admonition that her presence with someone using drugs on another occasion would bar her from the licensed premises in the future. Miller had also spoken to his bar managers employed at the Act I on the topic of the laws and ordinances related to the sale of alcoholic beverages, and mirrors were installed to help security surveillance activity by management. Notwithstanding those occasions in which drug usage was discovered and action taken to avoid the problem, an investigation conducted by Beverage Officers working for Petitioner in an undercover capacity in April, 1982, led to the purchase of a number of controlled substances within the meaning of Chapter 893, Florida Statutes. The purchases were made from the aforementioned dancers working in the premises in April, 1982. The dancers had been operating in the licensed premises for a period of two or three months prior to the investigation. In a related vein, Brewer Miller had told one of his bar managers at the Act I, a man named Cox, that the dancers could smoke marijuana in the public restroom because Miller did not have control over that public convenience. In the initial part of April, 1982, the agents from the Division of Alcoholic `Beverages and Tobacco began their investigation at the Respondent's licensed premises. Emphasis was placed on determining whether illicit drug sales were being conducted in the facility. Michael Freese, Beverage Officer, worked in an individual capacity. Beverage Officers Gary Hodge and Donald O'Steen worked as a team, always remaining in close proximity when in the licensed premises, except for April 16, 1982, when Hodge did not enter the bar. Respondent, in the person of its owner or other officials, was not made aware of the undercover investigation. When the officers would enter the licensed premises in April, 1982, they would find a doorman on duty and various bartenders, waitresses, and bar managers working there. Brewer Miller was also in attendance at times, which occasions will be more particularly described subsequently. On April 14, 1982, Freese entered the licensed premises at around 9:25 p.m. and spoke to dancer Sherie Morel. In the course of the conversation, Freese commented to Morel that it appeared that a drug transaction was occurring at a nearby location between dancer Chris Goodman and a white male. Morel indicated that it was a drug transaction and that Chris Goodman had cocaine which could be obtained by Morel. A discussion was then held between Morel and Freese in which Morel indicated that one-half gram of cocaine would cost $50. Morel left Freese and met with Goodman and brought back a packet containing a white powdery substance. That packet had been opened and Freese made Morel return the packet to Goodman and substitute a packet which was not opened. During this sequence, Morel licked some of the contents of the packet. The transaction took place in the licensed premises at approximately 10:45 p.m. The exchanges between Morel and Freese were made in the open. The substitute packet contained cocaine, approximately one-half gram. At the time that this transaction took place, there was no indication that Brewer Miller was in the bar. Freese returned to the licensed premises at around 9:40 p.m. on April 15, 1982, and contacted Sherie Morel. He talked about the purchase of one gram of cocaine, and Morel indicated that the cost of that cocaine would be $100. Morel obtained material from Chris Goodman which Morel gave to Freese, and which was later revealed to be cocaine in the amount of approximately one gram. The transaction took place in the licensed premises. Freese did not see the exchange of the cocaine between Goodman and Morel before Morel returned and handed the cocaine to Freese. Morel was gone approximately 20 minutes in pursuit of the transaction with Goodman and during that time, the dancers went to the dressing room area set aside for dancers. Although Freese did not see the exchange between Goodman and Morel, Morel indicated that Goodman had given her the cocaine and the circumstances establish an exchange from Goodman to Morel. While Morel and Goodman were conferring, Brewer Miller was standing within six to eight feet of that conversation. Miller was located at the bar. At around 11:15 p.m. on April 15, 1982, Freese purchased a marijuana cigarette from Morel for $5 following a conversation in which Morel told Freese she could "turn him on to marijuana". The marijuana/cannabis contained less than one gram of that controlled substance. On April 16, 1982, Freese went back to the licensed premises at around 10:00 p.m. and spoke with Morel. While dancing for Freese, Morel asked him if he liked "downers'. He told her he liked "ludes", meaning methaqualone. He also stated he was partial to cocaine. Out of this conversation, while in the licensed premises, she sold Freese two capsules of suspected valium, which was revealed to be Diazepam. There was no indication that Brewer Miller was in the licensed premises at the time of this transaction. On April 17, 1982, at around 1:15 a.m., Freese entered the licensed premises. After contacting Morel, a transaction was entered into in the licensed premises in which approximately one-half gram of cocaine was purchased from Morel for the price of $50. The cocaine was contained in a packet. At the time of the exchange of the material, Brewer Miller was located approximately 30 to 40 feet away. On April 19, 1902, Freese entered the bar at around 9:30 p.m. and spoke with Tina Belcher, another dancer in the licensed premises. Belcher had previously talked to Freese and Morel about the subject of drugs. On this occasion, Morel stated that she was going to be gone and wanted Belcher "to take care of Freese". At around 10:10 p.m., Belcher delivered cocaine to Freese in a small packet while in the licensed premises. There was no indication that Brewer Miller was in the licensed premises at the time of the exchange. On April 19, 1982, at around 9:20 p.m., Officers Hodge and O'Steen entered the licensed premises and spoke with Tina Belcher about the drug cocaine. This occurred while Helcher was seated next to Hodge and during the course of the playing of a song on the "jukebox", which song was entitled "Cocaine". At that time, Belcher stated to Hodge "I wish I had some", referring to cocaine. Hodge in turn expressed his desire to obtain cocaine. Belcher stated that she would get cocaine for Hodge. She left Hodge to obtain the drug. When she returned, she handed Hodge a package containing cigarettes, also containing a packet with approximately one-half gram of cocaine. This transaction took place in the licensed premises. Brewer Miller had been observed on the licensed premises by Hodge on the evening of April 19, 1982; however, Hodge does not recall whether Brewer Miller was there at the time that the drug transaction took place between Hodge and Belcher involving the cocaine. On April 19, 1982, Officer O'Steen spoke with Robin Herro, and she stated she could get him some "coke", meaning cocaine. A deal was made between those individuals to purchase approximately one-half gram of cocaine for the price of $50. The money was paid at around 11:45 p.m., and after leaving his location in the licensed premises, Herro returned to O'Steen and gave him the one-half gram of cocaine at around 12:07 a.m, on April 20, 1982. At the time O'Steen purchased the cocaine from Herro, Brewer Miller was in the licensed premises approximately 20 to 30 feet away from that purchase location. At around 9:20 p.m., April 20, 1982, Freese entered the licensed premises and spoke to Morel about the possible purchase of cocaine. Freese was unable to consummate the purchase and Morel indicated that she might have quaaludes to sell, meaning methaqualone. Later he told her, at around 11:10 p.m., that he would like four and paid her $3 each for those suspected methaqualones which were later revealed to be Diazepam. At the time of this transaction, there was no indication that Brewer Miller was in the licensed premises. On April 20, 1982, at approximately 8:55 p.m., O'Steen and Hodge entered the licensed premises. Hodge spoke to the dancer Belcher and at 9:45 p.m. purchased approximately one-half gram of cocaine for the price of $50 while in the licensed premises. This followed a conversation in which Belcher had indicated that she could not afford the substance but could obtain it for Hodge. On this date, Brewer Miller had been in the licensed premises; however, Hodge was unsure whether Brewer Miller was present at the time that the transaction took place between Hodge and Belcher. On April 20, 1982, during the evening hours, Officer O'Steen was engaged in a conversation with a dancer, Mitzi Stevens. She told him that she could obtain cocaine for him for a price of $50. Approximately one-half gram of cocaine was delivered to O'Steen and Stevens was paid $50. The transaction took place in the licensed premises. On April 23, 1982, Officer Freese entered the licensed premises at around 8:15 p.m. and spoke to the dancer Robin Herro. Herro danced for him and while dancing, asked him if he wanted to buy a "lude", meaning methaqualone. She stated she had ten in quantity. He told her he wanted cocaine. At around 9:45 p.m., Freese decided to purchase methaqualone and bought four tablets from Herro for a price of $12 total. The substance was determined to be methaqualone. The transaction took place in the licensed premises. There was no indication that Brewer Miller was in attendance when the transaction took place. On April 28, 1982, Freese entered the licensed premises at around 9:30 p.m. At the time, he contacted Robin Herro, and following that contact, purchased approximately one gram of cocaine from her for $100. The purchase was made in the licensed premises. Freese was seated at a table at the time the transfer took place, and Brewer Miller was at the bar area approximately 25 feet away. On April 28, 1982, Officers O'Steen and Hodge returned to the licensed premises. In the evening hours on that date, O'Steen made an arrangement with the dancer Chris Goodman to purchase one-half gram of cocaine for $50 for the benefit of himself and another half gram for $50 for Officer Hodge. The Officers each paid Goodman $50 and retrieved the cocaine from napkins found in the dancer's garterbelt. Shortly thereafter, Tina Belcher, another dancer, sat down and requested that O'Steen give her some of the cocaine. He retrieved the napkin which contained the cocaine, give it to Belcher, who left and later returned with a package containing the substance cocaine, in the amount of approximately one-half gram. Tina Belcher also requested Hodge to provide her cocaine after the transaction with Goodman. On April 29, 1982, Officer Freese entered the licensed premises at around 9:20 p.m., and after arriving, bought cocaine from Robin Herro. During the conversation to establish the sale, Herro asked Freese if he had obtained cocaine from Chris Goodman and he replied that Goodman didn't have cocaine. Herro indicated that her "connection" was in the licensed premises, and she went and sat with a man in the bar and returned with the substance. It was at the point of her return with the cocaine that the price of $50 was arrived at. The money was paid to Herro, and the substance cocaine was provided to the officer in the licensed premises. There was no indication that Brewer Miller was in the premises at that time. At around 8:55 p.m., Hodge and O'Steen entered the licensed premises on April 29, 1982. Hodge spoke to Robin Herro and she performed a dance while seated on his lap for which she charged money. A discussion was held about narcotics and she stated "the reason I didn't talk to you last night is because I had a deal going and the guy didn't want it to be known". She stated that she could obtain cocaine for Hodge from Goodman. Herro obtained cocaine for Hodge and gave it to him and he paid Goodman $50 after asking Goodman if the price was $45 or $50, and Goodman indicating the price was $50. O'Steen had talked to Chris Goodman about the purchase of one-half gram of cocaine and saw Herro give the one-half gram to Hodge after O'Steen had informed Hodge that the deal, through Goodman, had been made. O'Steen wanted Hodge to buy the cocaine since only one-half gram was available. This transaction took place in the licensed premises. At the time of this transaction, Brewer Miller was at the bar area some 10 to 15 feet away facing in the general area of the transaction. He was nearer the "jukebox", which was playing, than he was the transaction, and the music was louder than the conversation involved in the drug transaction. On April 30, 1982, Freese returned to the licensed premises in the evening. In a conversation with Chris Goodman, she stated that her "guy is not here with the stuff, meaning her supplier of cocaine. At around 11:35 p.m. Freese approached Goodman at a table where O'Steen and Hodge were also located and asked her if the "guy" had arrived. Goodman answered in the affirmative. Freese had been seated some 10 to 12 feet away from O'Steen and Hodge. Freese returned to his location on the east wall. Goodman went to the bar area and spoke with a Bill Higgins, who-was working there, and received something from him. She then went to the ladies restroom area. At that time, Miller was located at the north end-of the bar. Goodman subsequently came to Freese's table and he removed a napkin from her garterbelt and placed $100 there. The $100 payment was in exchange for a quantity of cocaine. The transaction took place in the licensed premises, and at the point of transfer between Goodman and Freese, Miller was approximately 30 feet away. On April 30, 1982, at approximately 8:55 p.m., Hodge and O'Steen entered the licensed premises and talked to Chris Goodman. She danced a "lap dance" for Hodge and charged him for it. Goodman asked O'Steen if he still wanted a "gram". O'Steen made arrangements with Goodman to purchase approximately one gram of cocaine for the price of $100 for the benefit of O'Steen and another one-half gram for Hodge for $50. The transaction took place after Goodman indicated that her contact had arrived in the licensed premises, by stating "it's here", meaning cocaine. In the transaction, Goodman handed napkins containing the cocaine to O'Steen. O'Steen kept two packets and Hodge kept one packet. The transaction occurred in the licensed premises, and the payment of $150 was made, $100 from O'Steen and $50 from Hodge. At the time the transaction took place with Goodman involving the three packets of cocaine, Brewer Miller was at the bar area near the "jukebox". On other occasions in April, 1982, Officer Hodge had pursued the investigation; however, no drugs were purchased. He was in the licensed premises on April 13, 1982, and made no purchase of drugs. On April 15, 1982, he talked to Chris Goodman about drugs in that he needed something for his sinuses, referring to cocaine. She replied that had you asked earlier, "I would have". She told him to ask again the next day and asked if he wanted a "G", meaning a gram. This conversation followed another conversation with Goodman on April 14, 1982. On April 22, 1982, Hodge spoke with Tina Belcher and asked her if she had anything for his nose,' meaning cocaine. She stated-that she did not because Chris was all out. Chris refers to Chris Goodman. Belcher indicated she had been "ripped-off" about drugs and Fred the manager had also been "ripped-off" by Sherie Morel, in that the substance they had purchased was not what they thought it would be. At the time that drug purchases were being made by Hodge and O'Steen, 10 to 25 people would be located in the bar. All officers found the lighting to be sufficient to identify people located at the other end of the premises while purchases were being made.
The Issue The issues in these cases are whether Respondent is guilty of serving alcoholic beverages to minors and, if so, what penalty is appropriate.
Findings Of Fact Respondent holds license number 58-01997, series 2-COP, for the retail sale of alcoholic beverages. The licensed premises were located at 536 West Church Street, Orlando, Florida. Respondent abandoned the premises at the end of August, 1989. The bar owned and operated by Respondent is no longer in operation, and the license is no longer active. On at least three occasions prior to the incident in question, one or more representatives of Petitioner had warned Lester Thomas, the sole shareholder and officer of Respondent, that he or his company's employees were serving alcoholic beverages to underage persons. On one of these occasions, Mr. Thomas complained, "Every time you come around here, there are problems. You catch me." At about 11:15 p.m. on August 5, 1989, two representatives of Petitioner entered the Negril Cove bar and observed Mary Ann Carmody, age 16 years, consuming an alcoholic beverage that a companion had purchased from Respondent. At all material times on that evening, Mr. Thomas himself was tending the bar at Negril Cove. At no time was Ms. Carmody asked for any identification. Under the circumstances, Mr. Thomas permitted Ms. Carmody to consume the alcoholic beverage on the premises.
Recommendation Based on the foregoing, it is hereby recommended that the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking the license of Respondent. RECOMMENDED this 23rd day of April, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1990. COPIES FURNISHED: Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Joseph A. Sole, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Thomas A. Klein Assistant General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Jerry S. Luxenburg 1214 East Robinson Street Orlando, FL 32801
Findings Of Fact Respondent is Alice Waldo, holder of Alcoholic Beverage License No. 45- 00293, Series 2-COP, for a licensed premises known as the SILVER DOLLAR CAFE located in Lake County, Florida. On or about February 4, 1989, an investigator employed by Petitioner entered the licensed premises of Respondent. While in Respondent's facility, the investigator observed several patrons smoking a substance, which by its smell and usage, he believed to be marijuana. The investigator then met with a patron, ordered a small quantity of crack cocaine and handed the patron some money for the forthcoming purchase. The patron then asked Respondent to hold the money while he left the premises to retrieve the controlled substance from his automobile. Shortly thereafter, the patron returned with the cocaine. The investigator showed the substance to Respondent's daughter, who had taken her mother's place at the bar. The purpose of displaying the drug to the proprietor, or the proprietor's daughter in this instance, was to later illustrate that Respondent condoned the use and sale of the drug in connection with her licensed premises. A field test by the investigator and a later laboratory test confirmed the identity of the substance purchased as crack cocaine. Petitioner's investigator again entered Respondent's facility on or about February 10, 1989. On this occasion, the investigator purchased a quantity of marijuana from a female patron, then took the substance over to the bar where he proceeded to roll a marijuana cigarette in the presence of Petitioner. At no time did Petitioner inform the investigator that controlled substances were not allowed on the licensed premises. Upon later laboratory analysis, the substance was confirmed to be marijuana. Upon leaving Respondent's facility on February 10, 1989, Petitioner's investigator met an individual within 10 feet of the front door of the premises who sold him a quantity of a substance later determined by laboratory analysis to be crack cocaine. On or about February 24, 1989, Petitioner's investigator entered Respondent's facility. On the front porch of Respondent's facility, the investigator purchased a quantity of a substance later determined by the investigator's field test and a subsequent laboratory analysis to be crack cocaine. After completing the purchase of the substance, the investigator went inside the facility, placed the material on the counter and recounted to Respondent that it had just been purchased on the front porch. Respondent made no reply to the investigator's announcement and, instead, complied with his request for change for a $20 bill. Upon receipt of the change, the investigator wrapped the crack cocaine in a $1 bill in Respondent's presence. On February 28, 1989, Petitioner's investigator again entered Respondent's facility. He approached a black female named "Lilly" and gave her $20 for the purchase of crack cocaine. However, after the lady accepted the $20 and left to retrieve the cocaine, she did not return. The investigator complained to Respondent that "Lilly" had failed to deliver the drug to him. The investigator also told Respondent that the lady could keep the $20 if Respondent would get him some of the drug. At that time, Respondent referred the investigator to a group of three male patrons on the front porch of the facility who appeared to be smoking marijuana. At no time during this incident did Respondent take any steps to prevent the use of any controlled substances on the licensed premises. Subsequently, Petitioner's investigator returned to Respondent's facility on or about March 4, 1989. He purchased a beer and went outside to the front porch of the facility. He observed a number of furtive transactions where currency was passed between certain individuals. He noticed Respondent go to one of the automobiles in the facility parking lot, get into the automobile, engage in conversation with the occupants and shortly thereafter emerge from the automobile. Respondent went back into the facility. The investigator approached a black male and gave him $20 for some crack cocaine. The black male took the investigator's money, then went directly to the automobile where Respondent had been previously. He returned shortly thereafter to the investigator with two pieces of a substance which later tested positive, via field test and laboratory analysis, as cocaine. During another visit to Respondent's facility on or about March 9, 1989, Petitioner's investigator observed a patron rolling what appeared to be marijuana cigarettes in Respondent's presence. While Respondent took no action to prohibit the use or possession of the apparently controlled substance, she did get her coat and leave shortly after the investigator's arrival. On or about March 11, 1989, Petitioner's investigator reentered Respondent's facility. The investigator purchased a small quantity of crack cocaine from a black male on the front porch of the facility. The investigator then took the controlled substance inside the building and displayed it to Respondent, telling her that he had just obtained the drug on the porch. Respondent asked the investigator if he was going to smoke the drug, and he replied yes. Later, a field test and laboratory analysis confirmed the drug to be cocaine. On or about March 17, 1989, Petitioner's investigator visited Respondent's facility. This time the investigator purchased a small quantity of a drug on the front porch of the building which, upon subsequent field test and laboratory analysis, was confirmed to be cocaine. After completing the purchase, the investigator took the substance inside and showed it to Respondent. Later in the evening, the investigator engaged Respondent in conversation on the front porch and related to her that he had observed numerous drug transactions taking place in her facility. Respondent smiled in acknowledgment of the investigator's statement and replied that she certainly hoped he was not a policeman. He told her that he was not a policeman. Respondent took no action to prohibit further use or transactions relating to drugs on the premises.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered revoking Respondent's beverage license bearing number 45-00293, Series 2- COP. DONE AND ENTERED this 13th day of June, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1989 APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-10. Addressed. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: EDWIN R. IVY, ESQUIRE BOX 3223 ORLANDO, FLORIDA 32810 THOMAS A. KLEIN, ESQUIRE DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007 STEPHEN R. MACNAMARA, SECRETARY DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007 LEONARD IVEY, DIRECTOR DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007
Findings Of Fact Introduction Respondent, Maximilliano N. Gonzales (respondent or Max) is the holder of alcoholic beverage license number 23-04935, Series 2-COP, issued by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). The license is used in conjunction with the operation of a lounge known as the Los Amigos Bar (bar or lounge) located at 5 Southwest 55th Avenue, Miami, Florida. Respondent and his companion, Olga, purchased the lounge in January, 1983 and have operated it since that time. Generally, either Max or Olga is on the premises supervising operations although Max was seriously injured by a customer about a year ago while breaking up an altercation and was forced to curtail his activities. Consequently, he has hired several other persons to assist him in managing the lounge during 1987. In the summer of 1987, the Division received a list of fifty Miami area establishments where the City of Miami police department suspected illicit drug transactions were taking place. RespondeV bar was one of these establishments. As a part of its investigation, the Division sent two undercover investigators (Garcia and Santana) to the lounge on August 21, 1987 to ascertain whether the police department's suspicions were well- founded. The two visited the bar on a recurring basis until October 8, 1987 when the Division issued an Emergency Order of Suspension which shut down the lounge and suspended respondent's license. That prompted the case sub judice. During their seven week investigation, Santana and Garcia observed a number of open and flagrant drug transactions and other illicit acts taking place on the licensed premises. In accordance with the parties' stipulation, these acts are summarized in chronological order in the findings below. For purposes of this order, Roberto was a patron of the bar, Carlos was its manager, and Loreno, Rosa, Lourdes, Eliza and Genny were barmaids. Further, all employees were on duty when the events herein occurred. The investigation While visiting the lounge on or about September 2, 1987, Santana and Garcia were approached by Lorena and Roberto and asked if they wished to purchase some cocaine. The investigators told Roberto that they would each be interested in purchasing a half gram of cocaine. Roberto then left the licensed premises and returned shortly thereafter and handed each investigator a half gram packet containing what appeared to be cocaine, a controlled substance. Garcia paid Roberto sixty dollars for both packets. The transaction took place "in front of the bar" and in the presence of Lorena and Rosa. The substance purchased was sent to a laboratory where an analysis confirmed it to be cocaine. On another visit to the lounge on or about September 4, 1987, Santana and Garcia were approached by Roberto concerning a purchase of cocaine. Garcia told Roberto he and Santana wished to order a half gram each. Roberto left the licensed premises and returned a few minutes later. He handed Garcia two small packets containing what appeared to be cocaine. Garcia then paid Roberto sixty dollars for both packets. The transaction took place in plain view while the investigators were seated at the bar and in the presence of Rosa. The substance purchased was subsequently sent to a laboratory where an analysis confirmed it to be cocaine. While at the premises on September 4, Santana and Garcia heard Roberto ask Rosa in a loud voice if she wanted to purchase some cocaine. A short (but loud) conversation between Roberto and Rosa then ensued while in the presence of approximately ten patrons and three other barmaids. Throughout the same evening, several patrons were observed purchasing what appeared to be cocaine from Roberto inside the licensed premises. On or about September 8, 1987, Santana and Garcia observed Roberto selling what appeared to be cocaine to numerous patrons inside the licensed premises. The investigators were later approached by Roberto who asked if they wished to purchase the drug. After Santana responded that he wished to buy some, Roberto handed him two packets containing what appeared to be cocaine in exchange for sixty dollars. The transaction took place in plain view at the bar and in the presence of Lorena, Lourdes and Eliza. In addition, Carlos was on the licensed premises when these activities occurred. The substance purchased by the investigators from Roberto was thereafter sent to the laboratory for analysis and was found to be cocaine. On or about September 10, 1987, while on the licensed premises, Santana and Garcia were approached on two occasions by Lourdes and Genny who solicited drinks from the officers. The investigators then went to the parking lot of the licensed premises, and were approached by Roberto concerning a purchase of cocaine. After Santana responded that he wished to buy some, Roberto handed Santana two small packets containing what appeared to be cocaine in exchange for fifty dollars. The substance was later laboratory analyzed and found to be cocaine. After entering the premises on or about September 14, 1987, the investigators were immediately approached by Lourdes who solicited the officers for an alcoholic beverage. They were later solicited in the same fashion by Genny. Later on, Santana met with Roberto and Rosa and asked if he could buy some cocaine. Santana handed Roberto sixty dollars and returned to his seat at the bar. Shortly thereafter, Roberto approached the investigators at the bar and handed Santana two small packages containing what appeared to be cocaine. The transaction took place in plain view at the bar and in the presence of Rosa and Genny. The substance purchased was laboratory analyzed and found to be cocaine. On or about September 17, 1987, the investigators returned to the lounge and met with Eliza concerning a purchase of cocaine. Eliza approached a patron who was seated at the other end of the bar and briefly conversed with him. Eliza returned to the investigators and told them that she could obtain cocaine for sixty dollars per gram, and that the cocaine would be delivered to the bar in approximately thirty minutes. Some thirty minutes later, Roberto entered the lounge and approached the investigators and asked if they desired to buy the drug. Santana told him he was interested in such a purchase and handed Roberto sixty dollars in exchange for two small packets containing what appeared to be cocaine. The packets were delivered on top of the bar counter in plain view and in the presence of Eliza and Lourdes. The substance purchased was laboratory analyzed and found to be cocaine. While at the lounge on September 17, Genny solicited two drinks from Santana. The two investigators also had extensive conversations with Eliza regarding the purchase of cocaine. On or about September 21, 1987, Santana and Garcia met with the manager, Carlos, concerning the purchase of cocaine from Roberto. During the conversation, Carlos was told several times that the investigators had purchased cocaine from Roberto inside the licensed premises. Carlos merely responded that "Roberto is a good guy, but he is not here." At no time did Carlos express disapproval of the cocaine transactions occurring within the licensed premises. On the same visit, barmaid Genny solicited two drinks from the investigators. The investigators also had conversations with Genny regarding the availability of cocaine on the licensed premises. However, they were informed by her that Roberto had not yet arrived. On or about September 22, 1987, Santana and Garcia visited the lounge and were approached by Eliza who asked whether they wished to purchase some cocaine. Eliza also informed them that Roberto had instructed her to call him on his beeper if any of his "regular customers" needed to purchase cocaine. She added that if Roberto could not come to the bar, she could sell them drugs obtained from her source who was present at the bar. After Santana and Garcia told her that they were interested in purchasing cocaine,, Eliza took a quarter from the business cash register and placed a telephone call on the lounge telephone. Eliza then returned and informed them that Roberto was on his way to the bar. A few minutes later, Roberto entered the lounge, approached the investigators, and handed Garcia two small packages containing what appeared to be cocaine. For this, Garcia gave Roberto fifty dollars. The transaction took place in plain view at the bar and in the presence of Eliza and Carlos. The substance purchased was sent to the laboratory where an analysis confirmed the substance to be cocaine. It is also noted that on this same visit, Genny solicited a drink from the investigators. On or about September 24, 1987, Santana and Garcia returned to the bar and were approached by Eliza who asked if they wished to purchase cocaine. She again informed them that Roberto had instructed her to call him on his beeper should the investigators wish to make a purchase. After Santana and Garcia placed an order for cocaine, Eliza went to the public telephone inside the licensed premises, and made a telephone call. After she returned she advised them that Roberto would be arriving soon. Approximately twenty minutes later, Roberto arrived at the licensed premises and told them that he had the cocaine that they had ordered. Roberto then gave Santana one gram of a substance that appeared to be cocaine in exchange for sixty dollars. He also handed Garcia one-half gram of a substance appearing to be cocaine in exchange for thirty dollars. The two transactions took place in plain view in the bar and in the presence of Eliza and Carlos. The substances purchased were laboratory analyzed and found to be cocaine. During this same visit, Genny solicited a drink from the investigators. On or about September 28, 1987, the two investigators returned to the lounge and were approached by Eliza and Genny who asked if they were interested in purchasing some cocaine. Eliza told them that Roberto was not in the bar but that she could call him on his beeper. Garcia requested that Eliza telephone Roberto and order a gram of cocaine. Eliza left for a few moments and was observed making a telephone call inside the licensed premises. A few minutes later, Roberto entered the lounge and handed Garcia two small packets containing what appeared to be cocaine. For this, Garcia gave Roberto fifty dollars. The transaction took place in plain view at the bar and in the presence of Eliza and Genny. The purchased substance was laboratory analyzed and found to be cocaine. On the same visit, Santana asked Roberto if he could purchase a gram of cocaine. Roberto said yes and told him the cocaine was stored in his car in the parking lot. The two then went to the car, where Roberto removed a package containing what appeared to be a half gram of cocaine, and gave it to Santana in exchange for twenty-five dollars. The substance was sent to the laboratory for analysis and was found to be cocaine. On October 1, 1987, Santana and Garcia again visited the lounge and were approached by Eliza who asked them if they wished to purchase cocaine. She also advised them that Roberto had not been in the lounge that day. Even so, she told them she could obtain the drug from another source. Garcia and Santana then placed orders for one and one-half grams of cocaine, respectively. After leaving for a few moments, Eliza returned and handed Santana and Garcia a brown paper napkin containing what appeared to be a gram and a half of cocaine. She was then paid seventy-five dollars by the investigators. The substance purchased was laboratory analyzed and found to be cocaine. On October 6, 1987, Santana and Garcia returned to the lounge and were asked by Eliza if they were interested in purchasing cocaine. Although she noted that Roberto had not been in the lounge that day, she told them she could obtain the drug from another source. Thereafter, Garcia and Santana each ordered one-half gram of cocaine from Eliza. After leaving the premises for a few minutes, Eliza returned and gave each investigator what appeared to be one- half gram of cocaine in exchange for fifty dollars. A laboratory analysis of the substance confirmed it was cocaine. When the above events occurred, there were no signs posted in the lounge warning patrons not to use drugs or to bring them on the premises. Further, the two investigators were never told by the manager or other employees to not use drugs, nor did they ever see a patron asked to leave because of having drugs in his possession. Max was seen in the lounge almost every day when the investigators were conducting their operation. However, there is no evidence that he personally saw a drug transaction take place, or that he was aware of any illicit activity. This is also the first occasion on which the licensed premises has been investigated. Mitigation At hearing Max and Olga appeared remorseful about this episode. They denied having knowledge of any drug transactions, and stated that around six months ago they had requested two Miami police officers to lend assistance in ridding their lounge of undesirable elements. They also told the police that "rocks" were being smoked in an adjacent parking lot. After the suspension of their license, the barmaids were fired. It is not clear whether Carlos was fired, but he only worked at the lounge for one or two months. A former manager who worked the first five months of 1987 testified he saw no drugs during his tenure, and that he was advised by Max to call the police if there were any problems. Because of his gunshot wounds, Max concedes it was necessary to hire other persons, perhaps too young, to oversee the lounge. He blames the incidents on those employees. If the license is reinstated, Max intends to shorten business hours and to have either himself or Olga on the premises at all times to ensure that no illicit activities occur. They also desire to sell the establishment, since they have invested their life savings in the business, and it represents their sole support.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of all charges in the Notice to Show Cause and that his License No. 230495, Series 2-COP, be REVOKED. DONE AND ORDERED this 2nd day of November, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 2nd day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4483 Petitioner: 1. Covered in finding of fact 1. 2. Covered in finding of fact 5. 3. Covered in finding of fact 6. 4. Covered in finding of fact 7. 5. Covered in finding of fact 8. 6. Covered in finding of fact 9. 7. Covered in finding of fact 10. 8. Covered in finding of fact 11. 9. Covered in finding of fact 11. 10. Covered in finding of fact 12. 11. Covered in finding of fact 13. 12. Covered in finding of fact 14. 13. Covered in finding of fact 15. 14. Covered in finding of fact 16. 15. Covered in finding of fact 17. 16. Covered in finding of fact 18. 17. Covered in finding of fact 19. 18. Covered in finding of fact 20. 19. Covered in finding of fact 3. 20. Covered in findings of fact 4 and 21. Respondent: Covered in findings of fact 1 and 3. Covered in findings of fact 1 and 3. Covered in finding of fact 21. Covered in finding of fact 21. 5.(a) Covered in finding of fact 2. Covered in finding of fact 3 to the extent the investigation was prompted by the City of Miami. The remainder is not supported by the evidence. Covered in finding of fact 22. Covered in finding of fact 21. Covered in finding of fact 22. Rejected since the evidence shows Lourdes and Rosa worked "many months" and "3-4 months," respectively. Covered in finding of fact 22. Covered in finding of fact 23. 6. Covered in finding of fact 23. COPIES FURNISHED: Thomas A. Klein, Esquire 725 South Bronough Street Tallahassee, Florida 32399-1020 Jose M. Herrera, Esquire Post Office Box 345118 Coral Gables, Florida 33114 Daniel Bosanko, Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Van B. Poole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire General Counsel The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue This case concerns the issue of whether the Respondent's beverage license should be suspended, revoked, or otherwise disciplined for maintaining a licensed premises where illegal drugs are sold and solicitations for prostitution take place. At the formal hearing, the Petitioner called as witnesses Carol Houston, Michael Collins, Chester L. Copeland, Vincent Rodriguez and John T. Allen. Petitioner offered and had admitted into evidence six exhibits. Respondent offered and had admitted into evidence one exhibit. Mr. Samuel Williams testified on behalf of Respondent.
Findings Of Fact The Respondent holds and at all times material to this action held beverage license No. 39-684, Series 4-COP. The licensed premises under that license is located at 2801 Nebraska Avenue, Tampa, Florida. Mr. Samuel Williams is president of the Respondent, Skylight Corporation, and owns 60 percent of the stock of that corporation. On the evening of July 27, 1983, Beverage Officer Carol Houston went to the licensed premises, The Blue Room Lounge, to conduct an undercover investigation. Upon entering the lounge Officer Houston took a seat at the bar and ordered a drink. After the shift change, Officer Houston talked to Brenda Brock, the bartender on duty. Officer Houston told Ms. Brock she liked to get high and asked if there was anyone in the bar from whom she could buy "reefer". Reefer is a street or slang term for marijuana or cannabis. Brenda Brock told Officer Houston that the person who usually sells reefer wasn't in the lounge at that time. Ms. Brock also related that she was high herself and had smoked a joint before coming on duty. When Officer Houston had entered the bar, Officer Michael Collins of the Tampa Police Department was already present in the lounge. Officer Collins, also working undercover, asked Brenda Brock where he would purchase some marijuana. When he asked Ms. Brock this question, she pointed out a black male named Chunky and said that he sold marijuana. Officer Collins then asked Brenda Brock to get Chunky for him and she did. The young male named Chunky approached Officer Collins and said he didn't have any marijuana but would have some later. At some time later in the evening, a young black male named Ace entered the lounge and Brenda Brock pointed to him and said to Officer Collins "that's him." Ace walked over to Officer Collins and asked if he was the guy looking for some marijuana. Officer Collins told him that he was but that he had promised to buy from someone else. Ace then asked Brenda Brock to verify to Officer Collins that he had been sent by Chunky and Brenda Brock said that he had in fact been sent by Chunky. As Ace had walked up to Officer Collins, he had three plastic bags of marijuana (cannabis) in his hands. He sold one of these bags to Officer Collins. Ace then sold a second bag of marijuana to a woman named Celeste who was sitting next to Officer Collins. Celeste was the bartender who had been relieved by Brenda Brock. Celeste purchased a $5 bag of marijuana from Ace and the exchange took place in the open and was observed by Officer Collins. After making the sales to Officer Collins and to Celeste, Ace approached Beverage Officer Houston who was still seated at the bar in a different area than Officer Collins and Celeste. He asked Officer Houston if she wanted to purchase some marijuana. She said yes and further stated that she wanted a $5 bag. He handed her a plastic bag containing marijuana and Officer Houston laid it on the bar in the open. Brenda Brock walked over and told her to put the bag up. Officer Houston then placed the bag of marijuana in her purse. Officer Houston then asked Brenda Brock if she had any papers she could use to roll a "joint". A joint is a slang term or street term referring to a marijuana cigarette. Brenda Brock said she did not have any papers. The purchase by Officer Houston of the marijuana took place in the open and was observed by Officer Collins from a different area of the bar. Later in the evening of July 27, 1983 two white females came into the lounge. Brenda Brock pointed to them and said those two ugly bitches called themselves prostitutes. At the time that the purchases of marijuana were made by Officer Collins, Celeste and Officer Houston, Brenda Brock was on duty as bartender and made no effort to stop the transactions. Mr. Samuel Williams had been in the lounge earlier in the evening, but was not present in the lounge when the marijuana transactions took place. On July 28, 1983, Officer Houston returned to the licensed premises approximately 7:00 p.m. When she arrived Samuel Williams was present in the lounge. Mr. Williams was talking with two men seated at the bar and was overheard by Officer Houston to say that before he would have those two prostitutes on the phone all night, he would have it taken out. Brenda Brock was the bartender on duty that evening and Officer Houston asked her if Ace was around. Ms. Brock replied that no one was around who had any reefer. Officer Houston left the lounge approximately 8:30 p.m. and returned at approximately 11:30 p.m. Upon entering, she ordered a drink from Brenda Brock and asked Ms. Brock if Ace had been back in because she wanted to get some reefer now. Ms. Brock replied that he was in the lounge and that she would get him for her. Shortly thereafter, Ace came over and asked Officer Houston what she wanted. She told him she wanted some reefer. Ace then walked away and shortly returned with a plastic bag containing marijuana. Officer Houston handed Ace a $20 bill and because Ace indicated he had no change, Officer Houston handed the $20 bill to Brenda Brock who gave her two $5 bills and one $10 bill as change. Officer Houston then handed a $5 bill to Ace as payment for the bag of marijuana. Also on the evening of July 28, 1983, while Officer Houston was seated at the bar, Brenda Brock told her a gentleman wanted to speak to her. The gentleman was Officer Collins, also working undercover. Officer Houston walked over and spoke to him briefly and the two of them returned to where Officer Houston had been seated in front of the cash register. There they discussed the price of a "date". A date is a common palance or street term for a sexual encounter for money or prostitution. A "date" is also referred to as a "trick". After agreeing upon a price, Officer Houston handed her purse and drink to Brenda Brock and asked Ms. Brock to hold them while she went outside to do a trick. Brenda accepted the purse and drink and Officer Houston left the bar with Officer Collins. Approximately 20 minutes later, Officer Houston returned and Brenda Brock gave her back her purse and her drink. At no time did Brenda Brock object to or inquire about Officer Houston's activities. On July 30, 1983, Beverage Officer Houston returned to The Blue Room Lounge at approximately 5:30 p.m. She entered the lounge and took a seat at the bar and ordered a drink from Brenda Brock who was on duty as bartender. While she was seated at the bar a young black female came up and asked her if she wanted to buy some reefer. Officer Houston had seen this young woman in the bar previously. She told her she did not want to buy any marijuana and after the young woman left she asked Brenda Brock who the young woman was. Brenda Brock said she was Ace's sister and in response to Officer Houston's questions, indicated that it was alright to buy reefer from her. Later that evening Ace came in and asked Officer Houston if she wanted to buy some marijuana. She told him that she had met his sister and Ace then called the young black female over and introduced her to Officer Houston as his sister. Officer Houston told Ace that she wanted to buy a $5 bag of marijuana. Ace then went over to his sister and brought back a clear plastic bag of marijuana. Officer Houston handed him a $20 bill and he indicated he did not have change. She then obtained change for the $20 bill from Brenda Brock and handed $5 of the change to Ace. Brenda Brock was standing right in front of her at the bar when she handed Ace the $5. In the early morning hours of July 30, 1983, just after midnight, Beverage Officer Hamilton entered the The Blue Room Lounge. He came over and talked with Officer Houston about a "date". While they haggled over a price Brenda Brock was seated directly across the bar from Beverage Officer Houston. After agreeing upon a price for the date, Officer Houston handed her purse to Brenda Brock and asked her to hold it while she did this trick. Brenda Brock took the purse and agreed to hold it. Beverage Officer Houston then left the lounge with Officer Hamilton. A few minutes later Beverage Officer Houston returned to the bar and Brenda Brock gave her her purse and put the drink which she had been drinking back on the bar. On August 1, 1983, Officer Houston returned to the licensed premises at approximately 9:30 p.m. She took the same seat near the cash register where she had sat on the previous evenings. Ace was present in the lounge. Officer Houston asked Brenda Brock to ask Ace to bring her a dime bag of marijuana. (A dime bag is a $10 bag. Brenda Brock went over to Ace and Ace then approached Officer Houston and asked her how much she wanted. At that time Officer Houston asked him if he could sell her some cocaine. He said he didn't have any but would have some later. Officer Houston then purchased two bags of marijuana from Ace for which she paid him $10. She handed him a $20 bill and he gave her $10 in change and when this exchange took place, Brenda Brock was in the area nearby on the other side of the bar. Officer Collins also went to the licensed premises on August 1, 1983 at approximately 10:55 p.m. After entering the lounge he told the barmaid, Brenda Brock, that he wanted to buy some good marijuana. She signaled to Ace and Ace came over to her. She whispered to Ace. Ace had walked up with a bag of marijuana already in his hand and after speaking with Brenda Brock he walked over and sold the bag of marijuana to Officer Collins for $5. Brenda Brock never objected to discussions regarding drugs or refused to get involved. There were no signs in the bar saying "No Drugs, No Loitering, No Prostitution", or signs with rules of management. On the evening of August 1, 1983, Officer Chester L. Copeland of the Tampa Police Department was also in the licensed premises in an undercover capacity. While standing at the bar Officer Copeland talked with Brenda Brock and asked her if Carol Houston was "dating". Brenda Brock said she didn't know. Ms. Brock then walked over and whispered something to Carol Houston and then returned to where Officer Copeland was standing and informed him that Carol was "dating". Officer Copeland then went over to Officer Houston and conversed with her about the price of a date. Brenda Brock was standing nearby during this conversation and made no objection to the discussion. After agreeing on a price Officer Houston handed her purse to Brenda Brock and left the lounge with Officer Copeland. Officer Collins also present in the lounge, observed Officer Houston and Officer Copeland leave the lounge together. Prior to this occasion Officer Collins had asked Brenda Brock if Officer Houston dated. Ms. Brock had indicated she didn't know and he had told her to go ask. She did go ask Officer Houston and came back and informed Officer Collins that she did date. Officer Collins then asked Ms. Brock the price of a date and she said she didn't know. Officer Collins asked her to go ask. Ms. Brock walked over and spoke with Officer Houston and came back and said the price was $50. On this particular evening of August 1, 1983, after he observed Officer Houston and Officer Copeland leave the bar, Officer Collins asked Brenda Brock if Officer Houston was coming back. Ms. Brock said she didn't know. Officer Collins then asked her if Carol (Officer Houston) was out on a date and Brenda Brock replied that she thought so. On each of the occasions that Officer Collins discussed prostitution with Brenda Brock he instituted the conversation, but Ms. Brock freely discussed it and made no objection to the discussions. Shortly after she had left with Officer Copeland, Carol Houston returned to the licensed premises. Officer Collins then approached her and talked about a "date". After a short discussion he and Officer Houston left the bar together. On August 3, 1983, Officer Houston again returned to the licensed premises at approximately 10:30 p.m. She took a seat at the bar directly in front of where Brenda Brock was working as bartender. Seated near her at the bar was a latin male who kept asking her to come over. After she had been there a short time, Brenda Brock came over to Officer Houston and said that the latin male wanted to know how much she charged for a date. Officer Houston did not respond and Brenda Brock shouted to the latin male $100. A short time later Brenda Brock came back over to Officer Houston and said that the latin male said he had some cocaine. Officer Houston then told the latin male in a loud voice that he better also have lots of money. That same evening Brenda Brock also told Officer Houston that another male, Officer Collins, wanted a date and had some cocaine. On the evening of August 3, 1983, Officer Copeland also entered the licensed premises. While seated at the bar, Officer Copeland met the young man named Ace. Ace came over and asked if he wanted to buy a $5 bag of reefer. He indicated that he did and gave Ace $5, and Ace handed him a plastic baggie of marijuana. On August 9, 1983, Officer Houston entered the licensed premises approximately 10:30 p.m. She took a seat at the bar, ordered a drink, and asked Brenda Brock, the bartender on duty, if Ace was around. Brenda Brock indicated that he was over at the Pac-Man machine but he had left the lounge. Later Ace came in and Brenda Brock said "there he is" to Officer Houston. Ace came over to Officer Houston and said he had some cocaine and asked if she still wanted to buy some. She asked now how much it would cost. Ace indicated he had "nickel" ($5) pieces. Ace stated that it was back at his room and he left and then returned with a small foil pack. Officer Houston gave Ace $5 and he handed her the small foil pack. The small foil pack contained cocaine, a controlled substance under Section 893.03, Florida Statutes. That same evening Officer Houston observed two black males rolling some type of cigarette. She observed a plastic bag containing material similar to marijuana. She observed Brenda Brock obtain some rolling papers from behind the bar and hand them to the two males. On August 10, 1983, Officer Houston entered the licensed premises approximately 10:00 p.m. Ace was not in the lounge when she arrived, but approximately 10:15 p.m. Ace entered the lounge and came over and asked if she wanted to buy some "coke". "Coke" is a slang or street term for cocaine. She said she would like to buy some and he said he would have it later. At approximately 11:30 p.m., Ace came over to Officer Houston and stated that he had coke. Officer Houston told him that she wanted two hits and she then bought two foil packs from Ace. Officer Houston gave Ace a $20 bill but he had no change. She then handed the $20 bill to Brenda Brock who gave her change. She paid $10 for the two foil packs which contained cocaine. That same evening a black male was seated at the bar smoking a marijuana cigarette. Brenda Brock who was the bartender on duty stated "Do I smell dope?" She then looked at the male smoking the marijuana cigarette, but made no effort to stop him. On August 11, 1983, Officer Houston was again on the licensed premises. While seated at the bar, Officer Houston observed a white female smoking what appeared to be a marijuana cigarette Brenda Brock came over to Officer Houston and said that the white female had just gotten some reefer and wanted to know if she wanted some. Officer Houston told her that she did not. Mr. Samuel Williams the president of the Respondent corporation was the manager and owner of the licensed premises. During the time of the charges in this case, Mr. Williams would open the bar in the mornings and remain at the bar all day until the shift change at approximately 7:00 or 7:30 p.m. He was not present in the bar when the various transactions took place and was generally not present in the bar in the evening. A Mr. Raifield had been hired by him to manage the bar at night. However, Mr. Raifield had been terminated shortly before the transactions which are the subject of this case. Brenda Brock had become a full-time bartender on July 26, 1983. Prior to that time she had worked part-time and Mr. Williams had no indication that she used drugs or allowed other people to use drugs or solicit for prostitution on the licensed premises. At no time was Mr. Williams aware that Brenda Brock was permitting drug transactions and solicitations for prostitution to take place in the licensed premises. There is a substantial prostitution problem in the Nebraska Avenue area where the licensed premises is located. Mr. Williams has been active in civic attempts to eliminate the prostitution from this area. Within a year of the charges which are the subject of this case, Mr. Williams' life was threatened by a pimp operating along Nebraska Avenue and the tires and convertible top of his car were slashed. One of the reasons that Mr. Williams was not in the lounge in the evening was because he had been advised by the police that it would be safer for him to not be in the lounge in the evenings. This occurred following the threat on his life. Mr. Williams had no policy of random visits or inspections to the lounge in the evenings. There have been no prior complaints or charges brought against the Respondent's license.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered finding the Respondent in violation of Section 561.29, Florida Statutes, and imposing a civil penalty of 1,000 and suspending Respondent's beverage license for a period of sixty (60) days. DONE and RECOMMENDED this 1st day of September, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Samuel Williams 3513 Rivergrove Drive Tampa, Florida Mr. Howard M. Rasmussen Director of the Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issues are whether the Respondent possessed, sold, or aided and abetted in the sale of controlled substances by his employee Pamela Martin on the licensed premises and whether the licensed premises were a public nuisance contrary to Section 561.29(1), Florida Statutes.
Findings Of Fact At all times relevant to the charges in this case Bernard Jordan, the Respondent, was holder of an alcoholic beverage license number 39-597, Series 2- COP, issued to the premises known as Little Paradise, located at 3602-29th Street, Tampa, Hillsborough County, Florida. The licensed premises are located on the corner of 29th Street and 29th Avenue in Tampa, Florida. On the other corners of the intersection are located a dentist's office, a physician's office, a building containing a real estate office and the office of three attorneys. Further down the street is located a laundromat and various other businesses. A persistent drug problem existed in this vicinity on 29th Street. Alphaeus Johnson is a confidential informant who works with the City of Tampa Police Department and for George Miller, an investigator with the Division of Alcoholic Beverages and Tobacco. Mr. Johnson had worked for Miller for over five years. As an undercover informant, A1phaeus Johnson entered the licensed premises. Johnson was searched by Investigator Miller and/or Detective Ron Harrison thoroughly prior to each occasion upon which he entered the licensed premises. These searches revealed that Johnson had no money or narcotics on his person at the time he was searched. After search, on each occasion, Johnson was given funds by the officers with which to purchase controlled substances. The officers kept Johnson in view from the time he left him until the time he entered the establishment and from the time he left the establishment until the time he returned to their location. The informant was paid a flat rate per day for assisting in the investigations and his compensation was not dependent upon whether he made any narcotic purchases. On February 15, 21, 22, and March 3, 22, 23, 1983, Johnson purchased quantities of cocaine from Pamela Martin inside the licensed premises. On February 15 and 21, 1983, Johnson purchased a quantity of marijuana from a male customer inside the licensed premises upon the referral of Pamela Martin. David Hauser, a detective with the University of South Florida, entered the licensed premises during the month of March, 1983, as part of an undercover investigation. Hauser asked Jordan if Jordan would sell him cocaine or whether he would have to purchase it from Pam. Jordan told Hauser he would have to get the cocaine from Pam. When Hauser approached Pam, she responded that she did not sell drugs. No sale ever occurred between Hauser and Pam. Pamela Martin had worked for the Respondent Bernard Jordan since 1975. Jordan had hired Martin after checking her references to include that of Martin's mother, with whom he was personally acquainted. At the time Martin was hired she had not ever been charged with a crime. At that time she did not use drugs. Martin had worked for Jordan off and on at various of Jordan's licensed premises since 1975. Jordan stressed with Martin and reemphasized to her at various times during her employment that any drug involvement by her on the licensed premises would result in her immediate discharge. Jordan also stressed with Martin and his other employees that any use of controlled substances by customers on the licensed premises was prohibited and that anyone using controlled substances be required to leave. At the time in question, the licensed premises were divided roughly in two by an iron grill. Neither Martin or any other employee had access to the locked area behind the iron grill which had been used as a disco. Use of the licensed premises was restricted to the front part of the premises which contained a bar, pool table, tables for customers and rest rooms. The disco had not been used for several months before the time in question. April 6, 1983, law enforcement officers executed a search warrant on the licensed premises. At the time the warrant was served, Martin was on the premises but did not possess a key or have access to the area behind the iron grill. The investigators found a blue plastic bowl in the mens room containing residue, a marijuana cigarette in Pamela Martin's purse, a partially smoked cigarette on the floor behind the bar, and a black zipper bag containing marijuana residue in an unlocked cabinet behind the locked gate. The black zipper bag was found after the Respondent Bernard Jordan was called to the licensed premises and unlocked the area. Marijuana and cocaine are controlled substances under the laws of the State of Florida. Jordan terminated the employment of Pamela Martin on April 6, 1983. Subsequently Martin pleaded guilty to sale and delivery of cocaine and was placed on probation. After being asked by Hauser whether Hauser could purchase cocaine from him or whether Hauser should wait for Pam, Jordan hired Alton Silas to remain at the licensed premises all of the day following Hauser's approach to Jordan. Silas was to watch Martin and report to Jordan any illegal activities which he observed. Silas saw no illegal acts while he was on the premises. Jordan operates six additional licensed premises in the city of Tampa. Jordan has strict overall rules concerning the use of controlled substances on all of his licensed premises. Jordan is in each of his licensed premises daily, generally on more than one occasion. Most of Jordan's employees have worked for him for long periods and some are members of his family. Jordan's policy is to discharge any employee involved with drugs or who permits the use of drugs on the premises. Jordan has discharged three employees over the last three years for failure to follow his policies concerning drugs. The informant Johnson testified that Jordan was never in the bar during any of his visits to the licensed premises. The licensed premises are the original licensed premises open by Jordan's family in the Tampa area. Many of the customers on the licensed premises are businessmen who work in the neighborhood. A dentist whose office is located near the licensed premises testified that he routinely visited the Little Paradise between 10:00 A.M. and 1:00 or 2:00 P.M. remaining on the premises for approximately twenty minutes. He never observed any drug use or drug sale on the premises. Jordan has never had any disciplinary action taken against any of his licensed premises.
Recommendation It is recommended that the charges be dismissed and that no action be taken. DONE and ORDERED this 29th day of January, 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of January, 1985. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Charles R. Wilson, Esquire 300 North Franklin Street Tampa, Florida 33602 Gary Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner should suspend or revoke Respondent's alcoholic beverage license, pursuant to Section 561.29(1), Florida Statutes (1995),1 and Florida Administrative Rule 61A-2.022,2 because Respondent operated the licensed premises in a manner that was a public nuisance and permitted others to violate state criminal laws prohibiting the possession and use of controlled substances, or both.
Findings Of Fact Petitioner is the state agency responsible for regulating alcoholic beverage licenses. Respondent holds alcoholic beverage license number 15-02695, series 2-COP for the Red Top Lounge located at 2804 Kennedy Street, Mims, Florida (the "licensed premises"). Respondent is the sole proprietor of the licensed premises. On February 13, 1997, two of Petitioner's special agents ("SAS") and other undercover law enforcement officers entered the licensed premises as part of an ongoing narcotics investigation. Several patrons of the licensed premises were consuming marijuana and rolling marijuana cigars in plain view of Respondent's employees and managers. Respondent was not present at the time. On February 28, 1997, the same SAS and law enforcement officers returned to the licensed premises incident to the same investigation. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Black." On March 14, 1997, the same SAS and law enforcement officers returned to the licensed premises incident to the same investigation. After midnight on March 15, 1997, the SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Marty." On March 15, 1997, the same SAS and law enforcement officers returned to the licensed premises, incident to the same investigation. After midnight on March 16, 1997, the SAS purchased a small package of marijuana for $10 from an unknown patron. The disc jockey routinely encouraged patrons over the public address system to smoke marijuana inside the licensed premises. On April 25, 1997, one of the same SAS, another SAS, and other law enforcement officers returned to the licensed premises incident to the same investigation. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Kenny Harvey." On April 26, 1997, the same SAS and law enforcement officers involved in the investigation on the previous day returned to the licensed premises. After midnight on April 27, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. On May 2, 1997, two SAS previously involved in the investigation and other law enforcement officers returned to the licensed premises. After midnight on May 3, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. After midnight on May 3, 1997, two SAS previously involved in the investigation and other law enforcement officers returned to the licensed premises. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Roy." After the previous transaction on May 3, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. After midnight on May 4, 1997, the SAS purchased a small package of marijuana for $10 from an unknown patron. Subsequent to each purchase of marijuana by the SAS, the items purchased were chemically analyzed in a laboratory and found to be marijuana. Subsequent to each purchase of cocaine by the SAS, the items purchased were chemically analyzed in a laboratory and found to be cocaine. The SAS involved in the investigation have extensive experience and training in narcotics investigation and detection of controlled substances. They have conducted numerous undercover investigations. Each agent has personal knowledge of the appearance and smell of marijuana. The open, flagrant, and notorious drug activity on the licensed premises was the worst each agent had observed in his career. Each time the SAS entered the licensed premises, underage patrons consumed alcoholic beverages. More than half of the patrons present on each occasion consumed and rolled marijuana cigars. The second-hand marijuana smoke inside the premises was so great that the SAS were concerned for their personal health and the affect the second-hand smoke could have on each agent if subjected to a random drug test, pursuant to agency policy. The purchase, consumption, and use of marijuana occurred in plain view of Respondent's employees and managers. Respondent's managers and employees never attempted to prohibit the illegal drug activity. Respondent was never present on the licensed premises. She was caring for her daughter who died on April 2, 1997. During the time she was caring for daughter, Respondent relinquished management and control of the licensed premises to her granddaughter and her boyfriend.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's alcohol and tobacco license. DONE AND ENTERED this 7th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1997.
Findings Of Fact At all times pertinent to the issues herein, the Department of Business and Professional Regulation's Division of Alcoholic Beverages and Tobacco, (Division), was the state agency responsible for regulation the wholesale and retail sales of alcoholic beverages in Florida. Respondent, Warehouse Liquors, III d/b/a Lake Avenue Liquors, held 3-PS liquor license 93-00582, for its retail liquor store located at 209 E. Lake Avenue in Tampa. The parties stipulated that the facts as alleged in paragraphs 1 - 18 of the Emergency Order of Suspension issued in this case on September 27, 1994, and Counts 1 through 11 of the Notice to Show Cause of even date are correct, and may be incorporated herein as Findings of Fact of the Hearing Officer. They are as follows: On or about April 29, 1991, Tampa City Councilman, Perry Harvey, notified the licensee's President and sole officer, Michael Kwasin, Jr., by letter, of specific public nuisance problem associated with his operation of the licensed premises. Mr. Kwasin was also given a corrective action plan to follow which included working with the Tampa Police Department, (TPD), to remedy the problem. In addition, TPD Sergeant G. Kelly contacted the licensee, through Mr. Kwasin, by telephone on several occasions in an effort to have him address the public nuisance complaints from the police Citizens Advisory Committee, made up of community leaders and city officials, relative to the licensed premises. In addition, citizens who reside in the surrounding neighborhood have met with Mr. Kwasin to voice their complaints about the drug dealing and safety problems related to his operation. Notwithstanding the repeated notices of misconduct in and around his facility given to Mr. Kwasin, the records of TPD reflect numerous complaints, incident reports and arrests associated with the licensed premises. On or about April 16, 1994, Special Agents, (SA), Hamilton and Murray went to the licensed premises as a part of an ongoing narcotics investigation. While at the premises, SA Murray observed patrons in the possession of "crack" cocaine. On or about May 19, 1994, SA Hamilton spoke with Mr. Kwasin regarding drug and loitering problems at the licensed premises. Nonetheless, TPD continued to receive complaints about the drug activity on the premises from citizens of the neighborhood. On or about June 2, 1994, SA's Hamilton, Zedell and Akins returned to the premises and while there, Zedell observed several male patrons, some of whom were conducting drug transactions, loitering in front of the licensed premises. Again, on or about July 21, 1994, SA's Maggio and Zedell returned to the licenses premises where Zedell observed patrons conducting drug transactions right in front. On or about August 25, 1994, SA's McKenzie and Zedell returned to the licensed premises and went inside where they met with the two female employees of the licensee and a male patron to arrange a purchase of marijuana. Zedell handed the male patron ten dollars and received, in exchange, a small plastic package of a substance which, when later analyzed, was determined to be marijuana. On or about August 26, 1994, SA's McKenzie and Zedell again returned to the licensed premises where Zedell observed patrons conducting drug transactions out in front. After one transaction, a patron went inside. When the agents went inside, they met with an employee, Lori, who asked the previously mentioned male patron if he had any marijuana. Thereafter, McKenzie got change from Lori from which he gave the patron ten dollars in exchange for a small plastic package containing a substance later analyzed and found to be marijuana. On or about September 1, 1994, SA's McKenzie and Zedell again returned to the licensed premises. While there they were approached by a male patron and solicited to buy marijuana. This patron thereafter directed McKenzie inside the premises to conduct the transaction because, he indicated, there were two police cars in the area. While inside, in front of employee, Lori, McKenzie gave the patron ten dollars for a small plastic bag of a substance later analyzed and determined to be marijuana. Again, on or about September 2, 1994, McKenzie and Zedell returned to the licensed premises where they observed several male patrons loitering outside. Just outside the door, McKenzie met with one of the male patrons to whom he gave ten dollars in return for a small bag containing a substance later analyzed and determined to be marijuana. On or about September 7, 1994, McKenzie and Zedell went back to the licensed premises where they were approached outside by a male patron regarding the sale of marijuana. McKenzie and the patron went inside where McKenzie handed him ten dollars in exchange for a small package containing a substance later analyzed and found to be marijuana. Later that same day, McKenzie and Zedell were again approached by the same patron regarding a sale of marijuana. McKenzie and the patron entered the premises where McKenzie again handed him ten dollars in exchange for a small plastic package containing a substance later analyzed and determined to be marijuana. This transaction was witnessed without interference by a male employee of the establishment. Again, that same day, Zedell met for a third time with that patron and gave him ten dollars in exchange for which he received a small plastic bag containing a substance later analyzed and found to be marijuana. On September 9, 1994, McKenzie and Zedell returned to the licensed premises where they were approached by another patron, different from all the previous patrons mentioned, who offered to sell them marijuana. They went with that patron inside the licensed premises where, in the presence of Respondent's employee, Jackie, McKenzie handed the patron ten dollars in exchange for which he received a small plastic bag containing a substance later analyzed and determined to be marijuana. On September 12, 1994, McKenzie and Zedell again went to the licensed premises where they were approached by yet another patron, a female this time, who offered to sell them marijuana. Again, as with prior patrons, they went inside the licensed premises where, in the presence of and with the concurrence of Respondent's employee, Lori, McKenzie handed the patron ten dollars in exchange for which he received a small plastic bag containing a substance which was later analyzed and determined to be marijuana. Two days later, on September 14, 1994, McKenzie and Zedell again went to the licensed premises where they were approached by several male patrons who were competing with one another to sell marijuana. All these patrons displayed small packages of purported marijuana and followed McKenzie into the licensed premises. Two of the patrons got into an argument about what was described as marijuana being openly displayed on the counter. Nonetheless, while inside the premises, McKenzie gave one of the patrons ten dollars in front of Jackie for which he received in return a small plastic bag containing a substance which was later analyzed and determined to be marijuana. Respondent's President, Mr. Kwasin, on the other hand, while not denying the details of the reported drug transactions which reportedly took place on the premises, denied ever being advised by his employees, the police, or his neighbors, that the situation was as bad as reported. His employee, Jacqueline Hall, (Jackie), in testimony at the hearing, indicated there was no room for drugs in the store because Mr. Kwasin has made it clear he doesn't want them there. She indicated management has also tried to get rid of the pushers outside the store as well and has cooperated with the police in all efforts to clean up the area. In her opinion, the primary responsibility lies with the police. Ms. Hall noted that she and Mr. Kwasin have gone to neighborhood meetings and have tried to implement the suggestions give by the police and others in an effort to cut down drug activities. There are only two employees at the store, she and Lori, and she has heard from law enforcement and others in the area that Respondent's policies on drugs are effective. According to her, the police have indicated that Respondent is doing all that can be done, and his efforts are appreciated. Ms. Hall has lived in that area all her life and she knows who the drug dealers are. They have come onto the licensed premises, but when they try to sell drugs inside, she sends them out. She denies having ever seen Lori selling drugs on the premises. Her testimony is patently incredible. Nonetheless, some law enforcement officers feel Respondent is being cooperative and trying to solve the drug problem. According to TPD Officer Garrett, who has spoken with Respondent Kwasin about the problem on many occasions, there has never been an instance where Kwasin has not cooperated fully with him, and Kwasin has sought suggestions from him on how to curb the drug traffic in the area. Respondent's general manager, Ms. Kennedy, has worked with him for about eight years. Approximately three years ago, the company put out a policy seeing to operate a drug-free work place. All employees are given copies of this policy. Earlier this year, Respondent's worker's compensation carrier provided her with new information to use to promote a drug free environment, which called for mandatory drug testing of employees and signed affidavits of non-use required from each employee. These new procedures have not been implemented as yet, however. Ms. Kennedy knows that Mr. Kwasin goes to the licensed premises in question each day, seven days a week. She also sees him at the location where she works, at least four hours a day the six days a week she is there. They have frequently discussed, prior to their implementation, anti-drug policies and procedures which Mr. Kwasin has brought back with him from training sessions at the IBD conventions he attends. He recognizes it to be in his best interests to conform to a no-drug policy in his stores. Ms. Kennedy is available to all Respondent's employees 24 hours a day, either at work, or on call at home. All employees go through a training program on anti-drug activity, but the drug testing and the anti-drug affidavits have not yet been implemented. Mr. Kwasin believes his efforts to curb drug activity in and around Lake Avenue Liquors had brought the problem under control. When Sgt. Hamilton spoke with him in May, 1994, he added more external lights and found that within a week of installation, all bulbs were broken. He replaced them four times, finally installing another type of bulb which is not so easily broken. He has tried to work with the police and even suggested they send in an undercover agent to work in the store as a clerk. This was not done, however. He has tried to enlarge the peep hole through which in-store activity could be monitored, but this was resisted by his employees who felt it placed them in increased danger of bodily harm. Mr. Kwasin claims he tried every way he knew to reduce the drug activity in the area because he knew it was a liability. He has taken pictures of the drug activity going on in the area outside his facility and contends they show open and unfettered drug sales going on without any interference by police. He tried to solicit suggestions from the police but nothing he tried helped. He thought his presence at the store would reduce drug dealing and when he was present, it was usually quiet. All of this related to drug activity outside the store, however. Mr. Kwasin claims to have had no knowledge at all that any drug activity was going on inside the store. He was told by his employees that they were doing what the could do and that no problem existed. It was only recently he found that his two female employees were being flattered by the male patrons who then could do what they wanted on the premises. Respondent now has a plan for new employees which includes "responsible vendor training" on anti-drug policies and procedures at the company headquarters and at the store. He had thought his prior policy was enough since no liquor was sold over the bar. At Respondent's Gandy Boulevard store, where liquor is sold by the drink, he has implemented such training, and will implement it at Lake Avenue Liquors. He will also repair and place into operation a video monitor which has been installed but not working for the past year, and he will manage the licensed premises personally until he gets proper, qualified employees in place, and he will monitor the closely after that. In short, Mr. Kwasin contends there was a tremendous breakdown in communications between him and the police and his neighbors, but denies there is any reason to fear being in the area at night. He claims he has been there at night many times. He admits his previous written policies have not worked with the employees he had. He admits his video system didn't work, and he admits that neither Jackie nor Lori was checked out on anti-drug training or tested. Notwithstanding Mr. Kwasin's denials of knowledge that any problem regarding drug sales existed inside the premises, Senator James T. Hargrett, Jr., who has lived in the area of the licensed premises for many years and who passes it frequently, has received numerous complaints from residents about the area, and as a property owner, he has made considerable effort to insure his properties are in compliance with all requirements of the law. He has observed the area at all hours and has worked with the police regarding it. Senator Hargrett believes Respondent could have done more to thwart the drug trafficking in the area. If the Senator suspected drug activity inside the premises, he would have gotten rid of those who were engaged in illegal activity; he would have worked more closely with the police; and he would have worked to get rid of loiterers. Lake Avenue Liquors has a very poor reputation in the surrounding community. It is not responsive to the neighbors' concerns about illegal activity. This facility constitutes a definite problem compared with other businesses in the neighborhood and seems to suffer from owner neglect. In Hargrett's opinion, it is incumbent upon anyone in business to supervise and audit what goes on in his business establishment and to be aware of any illegal activity. This was not done here, he feels, and this absence of proper supervision has resulted in the creation of a nuisance in the community.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the alcoholic beverage license number 39-00583, series 3- PS, issued to Respondent, Warehouse Liquors III, Inc., d/b/a Lake Avenue Liquors, be revoked. RECOMMENDED this 17th day of November, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 17th day of November, 1994. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 18. Accepted and incorporated herein. 19. - 29. Not Proposed Findings of Fact but restatements of the testimony of witnesses. They are, however, accepted as accurate restatements of the testimony as they support the findings made herein. FOR THE RESPONDENT: No submittal by Respondent. COPIES FURNISHED: Thomas A. Klein, Esquire Richard D. Courtemanche, Jr., Esquire Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Michael Kwasin, Jr., pro se Lake Avenue Liquors 4023 Gandy Boulevard Tampa, Florida 33611 John J. Harris Acting Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
