Findings Of Fact The Respondents, Conrad F. and Shirley Bouchard, are holders of beverage license number 39-790, series number 2APS. This license is issued to the licensed premises, Brandon Beverage Center, located at 118 Margaret Street, Brandon, Florida. The license was obtained by the Respondents by transfer on August 21, 1981. The licensed premises is a drive-through store which sells beer and wine, milk, bread, and other grocery items. Conrad F. Bouchard, Sr., is one of the owners and licensees and is also the manager of the store. His regular working hours are from 8:30 or 9:00 A.M. to 4:30 or 5:00 P.M. He occasionally is required to work evenings and weekends. Conrad F. Bouchard, Jr., also known as Butch, is the son of the Respondents and worked nights at the licensed premises. On April 1, 1982, the Respondent was given a written warning from Beverage Officer George Miller that there had been complaints about sales of alcoholic beverages to minors at the licensed premises. On October 27, 1982, an employee of Respondent, named Scott Steinberg, was arrested for selling alcoholic beverages to minors. As a result of this, the Division of Alcoholic Beverages by Notice to Show Cause brought formal administrative charges against the Respondents. The charges against the Respondents resulted in a stipulation and settlement with the Respondents agreeing to pay a $300 fine. On July 22, 1983, Scott Steinberg was arrested for selling alcoholic beverages to minors and formal administrative charges were brought against the Respondents as a result of the alleged sales to minors. These charges are still pending. On the evening of October 11, 1983, at approximately 9:00 P.M., Detectives Michael Ray and Mark Olive of the Hillsborough County Sheriff's Office, went to the licensed premises to investigate complaints relating to the sale of drugs on the licensed premises. They were accompanied by a confidential informant. Upon arriving at the licensed premises, Butch Bouchard approached the vehicle and the confidential informant asked if he had any marijuana they could purchase. Butch Bouchard responded that he did. Scott Steinberg, another employee working at the licensed premises, approached the vehicle and took $26 from Detective Ray as payment for the marijuana. Butch Bouchard then returned to the vehicle holding a cigarette carton with the top torn off. He handed the carton to the confidential informant who in turn handed it to Detective Ray. The carton contained a baggie containing approximately five grams of marijuana (cannabis), a controlled substance under Florida Statute 893.13 (1981). On October 13, 1983, at approximately 9:10 P.M., Detectives Ray and Olive returned to the licensed premises. As they stopped their vehicle inside the drive-through store, Butch Bouchard approached Detective Ray. Ray asked Butch Bouchard if they could purchase some marijuana. Bouchard looked in the backseat of the vehicle and saw the confidential informant and then walked over to the office area. Bouchard then returned with a paper bag which he handed to Detective Ray. Detective Ray handed $25, the agreed price of the marijuana, to Bouchard. The paper bag contained a clear plastic baggie filled with marijuana. On this particular evening, Butch Bouchard was the only employee on the licensed premises. In the early evening of October 17, 1983, Detective Ray, accompanied by Detective Tony Roper, drove into the licensed premises. Butch Bouchard approached the vehicle and Detective Ray asked if he could purchase some marijuana. Butch Bouchard then asked Detective Ray to get out of his vehicle and select which bag he wanted. Butch Bouchard had several bags in his hand and asked Detective Ray to look at them. Detective Ray selected one bag and purchased it from Butch Bouchard. The bag contained marijuana. On October 20, 1983, at approximately 9:00 P.M. Detectives Ray and Roper returned to the licensed premises. Officer Ray purchased a plastic baggie of marijuana from Butch Bouchard for $25. On November 10, 1983, Detective Roper and Detective Mathai, Hillsborough County Sheriff's Office, went to the licensed premises and asked to buy a bag of marijuana from Butch Bouchard. Butch said he did not have any and asked them to come back later. When the detectives returned the Beverage Center was closed and Butch Bouchard was in the parking lot. Butch came over to the Detectives' car and sold them a plastic baggie of marijuana. On November 17, 1983, Detectives Geoffry Dean Mathai and John Zdanwic of the Hillsborough County Sheriff's Office, went to the licensed premises. On a prior occasion, Detective Mathai had gone with Detective Tony Roper to the licensed premises and had talked with Butch Bouchard about marijuana. On this evening, Detective Mathai asked Butch Bouchard if he remembered Tony and after a short conversation Mathai asked Butch if he could buy some marijuana. Butch said yes and asked how many bags. Detective Mathai told him they wanted two bags. Butch left the car, went into the office and returned a couple of minutes later with a Benson & Hedges cigarette carton. He handed the carton to Detective Mathai and Detective Mathai and Detective Zdanwic each handed him cash. The two detectives also had ordered a beer each and received the beer and change from Butch Bouchard. The cigarette carton contained two plastic baggies of marijuana. Detectives Mark Olive and Swann also made a purchase of marijuana at the licensed premises on the evening of November 17, 1983. The two detectives drove into the licensed premises and asked Butch Bouchard if they could purchase a $25 bag of marijuana and asked if he had that much. Butch responded yes and walked to the office area and then came back with a cigarette carton which he handed to Detective Olive. The carton contained a plastic baggie of marijuana. Butch Bouchard was paid $25 for the bag of marijuana. The only employees observed on the licensed premises this night were Butch Bouchard and Scott Steinberg. On the evening of November 22, 1983, Detective Ray and several other officers went to the licensed premises to serve a search warrant. When they arrived, Detective Ray spoke to Conrad Bouchard and asked if they could purchase some marijuana. Butch answered yes and went over to the area of the cash register and office area. Detective Ray then got out of his car and walked over to the office where he saw Butch Bouchard crouched down and looking at five bags of marijuana. Detective Ray identified himself as a police officer and Butch then grabbed the bags and ran into the bathroom and tried to flush the marijuana down the toilet. Detective Ray caught Butch before he could flush the toilet. After arresting Butch Bouchard, the officers searched Butch's car and found a pipe and two more plastic baggies of marijuana. When Butch was crouched looking at the bags of marijuana, Scott Steinberg was present in the same area. On each of the evenings that purchases of controlled substances were made at the licensed premises, no employees other than Butch Bouchard and Scott Steinberg were present at the licensed premises. Neither Butch Bouchard nor Scott Steinberg is a night manager. Both these individuals are merely sales clerks. The only manager for the licensed premises is Conrad F. Bouchard, Sr. Although the normal working hours for Conrad F. Bouchard, Sr., is 8:30 to 4:30 or 5:00 P.M., he occasionally returns to the licensed premises in the evenings to check on things. Mrs. Bouchard also makes a point of stopping by the licensed premises in the evening. Occasionally, Mr. or Mrs. Bouchard would check on the licensed premises without the employees being aware they were observing. Mr. and Mrs. Bouchard had no knowledge of the drug transactions which took place on the licensed premises. Shortly after acquiring the licensed premises, Mr. Bouchard fired several of the previous employees for selling alcoholic beverages to minors. Until the arrest of Butch Bouchard and Scott Steinberg for drug violations, there was no evidence that any disciplinary action was taken by the licensee against these two individuals for sales to minors on two occasions. Mr. Bouchard had a clear policy against selling alcoholic beverages to minors. He constantly instructed employees to check identification. There was no evidence of instructions or warnings having been given relating to other types of illegal activity. During July and August, 1983, Mr. and Mrs. Bouchard took separate vacations in order for one of them to be available to oversee the operation at the licensed premises. The licensed premises enjoys a good reputation in the community as a clean, well-run establishment. The Respondents individually enjoy an excellent reputation in the community as honest, hardworking people.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED: That a final order be entered finding the Respondents guilty of the violations as set forth above and imposing a civil penalty of $1400 and a suspension of the beverage license for a period of 30 days. DONE and ORDERED this 21st day of December, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1983. COPIES FURNISHED: Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Danny Hernandez, Esquire 707 Swann Avenue Tampa, Florida 33606
Findings Of Fact At all times relevant to this case, Joel Albert Collinsworth held a valid Division of Alcoholic Beverages and Tobacco liquor license for the premises known as the Silver Bullet Bar and Lounge (hereinafter licensed premises), located at 12 North Ninth Street, DeFuniak Springs, Walton County, Florida. Petitioner's Exhibit 1. The license held by Respondent is number 76- 330, Series 2-COP and is limited to the sale of beer and wine on the licensed premises. Investigator Don Taylor is a police officer with the DeFuniak Springs, Florida, Police Department. On Thursday, December 10, 1987, Investigator Taylor entered the licensed premises and seized glass containers of liquid that were marked as Petitioner's Exhibits 2, 3, and 4. The containers were only partly full. Investigator Taylor, has on many occasions, observed, smelled and tasted distilled spirits (and testified that the liquid was whiskey and not wine or beer.) Respondent, Joel Albert Collinsworth was on the licensed premises at the time Exhibits 2, 3, and 4 were seized and was immediately placed under arrest by Investigator Taylor. The three (3) glass containers were taken to the Florida Department of Law Enforcement laboratory in Pensacola, Florida for testing and identification of the liquid contained in the three (3) bottles. The lab results shows that the liquid contained a high concentration of ethyl alcohol. Petitioner's Exhibit 5. Investigator Roy Harris, an 18 year veteran of the Division testified that the concentrations of alcohol listed in Exhibit 5 were sufficiently high that they could not be anything other than distilled spirits. The 2-COP license held by the Respondent allowed only consumption on the premises of beer and wine. The license does not permit possession, consumption or sale of distilled spirits on the licensed premises. The evidence showed that distilled spirits were being possessed and/or consumed on the premises owned and operated by Respondent under his beverage license. Such possession and consumption constitute a violation of Section 562.02, Florida Statutes. Petitioner requested that Respondent's license be revoked for the violation of the Liquor Law. No mitigating facts were presented by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is therefore RECOMMENDED: That Respondent is guilty of the offense set forth in the Notice to Show Cause issued on January 13, 1988, and that Petitioner should revoke the license of Joel Albert Collinsworth, d/b/a Silver Bullet Bar and Lounge. DONE and ENTERED this 22nd day of July, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1295 Petitioner's Proposed Findings of Fact contained in paragraph 1, 2 and 3 have been adopted in substance in so far as material. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 W. Paul Thompson, Esquire Post Office Drawer 608 DeFuniak Springs, Florida 32433 Lt. Tom Stout, District Supervisor Division of Alcoholic Beverages and Tobacco 160 Governmental Center Suite 401, 4th Floor Pensacola, Florida 32501 Van B. Poole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Respondents hold alcoholic beverage license number 60- 0122, series 2- COP, and do business at 704 South Military Trail, West Palm Beach under the name of The Brass Bull. Respondents have operated The Brass Bull for six years without any complaints from law enforcement agencies until the execution of a search warrant on the premises on November 29, 1994. On September 12, 1984 the Petitioner and the Palm Beach County Sheriff's Office began an investigation of The Brass Bull and met with a confidential informant, hereinafter referred to as CI, who was employed at the time as a dancer at The Brass Bull. The CI agreed to make introductions for law enforcement officers to employees on the premises and was paid $150 on November 26, 1964 for making these introductions. The CI had been placed on probation in July, 1983 and was on probation during this investigation. The CI's husband was placed on probation on September 11, 1984. On September 14, 1984 Investigator Kenneth Goodman, Division of Alcoholic Beverages and Tobacco, and Sergeant David R. Harris, Riviera Beach Police Department, entered the licensed premises and talked with a dancer identified as "Linda" about the purchase of some marijuana. Linda gave Investigator Goodman a single marijuana cigarette analyzed as containing 260 milligrams of cannabis, but she did not have any to sell. Investigator Goodman and Sgt. Harris met another dancer on the premises, identified as "Sunrise," on September 19, 1984 and discussed their desire to purchase some cocaine. Sunrise was later identified as Dawn Birnbaum. Sgt. Harris gave Sunrise $40, she left the premises through the front door, returned in a few minutes and handed Sgt. Harris two aluminum foil packets later analyzed as containing 200 milligrams of cocaine. Investigator Goodman also purchased 100 milligrams of cocaine from Sunrise on September 19, 1984. These sales took place on the premises while other patrons were present, although Sunrise left the premises to obtain the cocaine for the sales. On September 25, 1984, Sgt. Harris entered the licensed premises with Investigator Richard Walker, Division of Alcoholic Beverages and Tobacco. Investigator Walker purchased 505 milligrams of cocaine from Sunrise who left the premises to obtain the cocaine but returned to complete the sale on the premises. Other patrons were on the premises at the time of the transaction. Investigator Goodman and Sgt. Harris were on the licensed premises on October 6, 1984 and discussed their desire to purchase cocaine with a dancer identified as Christine Flynn. They each gave Flynn $45, she left the premises, returned and handed them each a plastic baggie containing a total of 590 milligrams of cocaine. Other patrons were on the premises at the time of the transaction. On October 12, 1984, Investigator Goodman and Sgt. Harris entered the premises and met a waitress identified as April Finster. Investigator Goodman asked to buy some marijuana. She went into a back room on the premises and returned with one marijuana cigarette containing 300 milligrams of cannabis, which she gave to Investigator Goodman. On October 16, 1984, Sgt. Harris and Investigator Walker met a dancer identified as "Blondie" on the premises and discussed their desire to purchase some cocaine from Blondie. The CI was present during this discussion, took $20 from Sgt. Harris, and then left the premises with Blondie. When Blondie and the CI returned, the CI gave Sgt. Harris a plastic bag which was heat sealed and filled with 110 milligrams of cocaine. Blondie stated that she always heat sealed her bags. Later Sgt. Harris gave Blondie $100, she brought him $70 change and then went into the dressing room. When Blondie exited the dressing room she approached the CI and they approached the table where Sgt. Harris was sitting. The CI placed a book of matches on the table and Blondie told Harris the cocaine was in the book of matches. Sgt. Harris found a heat sealed plastic bag containing 135 milligrams of cocaine in the matches. There were other patrons on the premises when these transactions took place. Sgt. Harris and Investigator Walker met a dancer named "Lola" on the premises on October 30, 1984. Sgt. Harris gave Lola $80, she entered the dressing room and then returned to where Sgt. Harris was seated with a white towel around her hand. Inside the towel was a bag containing 800 milligrams of cocaine. While on the premises with Sgt. Harris on October 31, 1984, Investigator Walker gave Lola $100. She left the premises and returned with a plastic bag containing 560 milligrams of cocaine which she gave to Investigator Walker. On November 6, 1984 Investigator Goodman was on the premises with Sgt. Harris, and Investigator Goodman gave Lola $55. Lola approached a white male patron and then returned to Investigator Goodman and gave him a plastic bag containing 400 milligrams of cocaine. On November 20, 1984 Investigator Goodman was on the premises with Sgt. Harris. Lola approached Investigator Goodman and asked him if he wanted to buy some cocaine. He gave her $50, she left the premises and returned with a bag containing 300 milligrams of cocaine which she gave to Investigator Goodman. Other patrons were on the premises at the time of the transaction. Investigator Goodman and Sgt. Harris were also on the licensed premises on September 28, October 9 and 10, November 1 and 5. On each occasion they discussed the purchase of controlled substances as defined in Section 893.03, F.S., with Respondents' employees who were on the premises at the time of these discussions. No actual transactions took place on these dates. In brief summary of the foregoing, during the period of September 14 to November 20, 1984, transactions involving the sale of a total of 3.7 grams of cocaine and gifts of 560 milligrams of cannabis took place at The Brass Bull between Respondents' employees and Investigators Goodman and Walker, and Sgt. Harris. There were also five occasions when the purchase of controlled substances was discussed with Respondents' employees on the premises but no actual transaction took place. The CI was on the premises during most of these occasions, introducing the law enforcement officers to the various employees. The transactions usually took place while other patrons were on the premises, and included Respondents' employees passing the controlled substances on or above the table at which the officers were seated. On some occasions the employees left the premises after receiving money from the officers and returned a short time later with the controlled substance which they then gave to the officers on the premises. Respondents do not take an active role in managing The Brass Bull. They rely on a day manager and a night manager to hire, fire and discipline employees, to schedule the dancers, and to enforce the rules which are posted in the employees' dressing room. Rule 11 prohibits employees from having drugs or "liquors" on the premises, and states that anyone having these substances on the premises will be terminated immediately. Respondents never met with employees, other than their managers with whom they met or talked almost daily. Conversations and meetings with the managers were usually social, however, and generally did not involve business matters. Business meetings with the managers were held infrequently. Robert Meloche only visited the premises at 7:00 a.m. when no one else was present in order to review the prior night's receipts. At all times relevant hereto, Respondents employed various dancers on the licensed premises under the terms of an Entertainment Booking Agreement. All dancers were required to sign the booking agreement and agree to working conditions prescribed by the Respondents, including compensation arrangements, the number and color of their costumes, work hours, and the additional duties of cleaning and serving tables. Respondents also prescribed a set of seventeen (17) rules for all dancers and other employees. The above referenced individuals named Linda, Sunrise, Christine Flynn, April Finster, Blondie, Lola, and the Confidential Informant were employees of Respondents' at the licensed premises during the time relevant to this case. In making the above findings, the undersigned Hearing Officer has considered proposed findings of fact submitted by the parties pursuant to Section 120.57(1)(b)4., F.S. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings have been rejected as subordinate, cumulative, immaterial, unnecessary or not based on competent substantial evidence. Specifically, Respondents' proposed findings as to Counts 14, 15 and 16 are rejected since they are not based on competent substantial evidence and are otherwise immaterial and irrelevant.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that Petitioner enter a final order revoking Respondent's license number 60-0122, series 2-COP. DONE and ENTERED this 1st day of April, 1985 at Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of April, 1985. COPIES FURNISHED: Sandra Stockwell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Craig R. Wilson, Esquire 315 Third Street, Suite 204 West Palm Beach, Florida 33401 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Respondent is a Florida corporation. Gary Popkin is its sole corporate officer and stockholder. He holds the positions of President, Vice-President, Secretary and Treasurer. Respondent is now, and has been at all times material hereto, the holder of alcoholic beverage license #16- 03 032 2-COP issued by Petitioner. The licensed business is a bar that operates under the name of Lynda's Lounge. It is located at 8007-8009 Kimberly Boulevard in North Lauderdale, Florida. C.G. is a paid confidential informant. The North Lauderdale Police Department is among the law enforcement agencies for whom he works. On the afternoon of July 19, 1989, C.G. entered Lynda's Lounge, sat down and ordered a drink. While in the bar, C.G. was approached by Vinnie Lavarello, another of the bar's patrons. They were joined by Popkin. A conversation ensued. Popkin advised C.G. that he had some "good pot" and asked him if he wanted to buy some. He suggested that C.G. act quickly because he only had a little left. Both Popkin and Lavarello told C.G. that there was no need to worry because everyone in the bar "smoked pot" and was "cool." C.G. informed Popkin that he would "let him know." He thereupon left the bar and paged Detective Gary Harris of the North Lauderdale Police Department. Harris instructed C.G. to meet him at the North Lauderdale police station, which is a short distance from the bar. In accordance with Harris' instructions, C.G. went to the police station. He provided Harris with a description of Lavarello and Popkin, as well as their names. Harris searched C.G. and C.G.'s car for drugs and found none. He then gave C.G. $20.00 with which to purchase marijuana from Popkin. C.G. drove back to the bar. He was followed by Harris in another vehicle. They arrived at the bar at approximately 5:55 p.m.. C.G. entered the bar, while Harris waited outside. Once in the bar, C.G. walked up to Lavarello and indicated that he was interested in consummating the deal they had discussed earlier that day. Popkin apparently overheard C.G. He gave C.G. a package containing marijuana (cannabis). In return, C.G. gave Popkin the $20.00 he had been given by Harris. Following this transaction, there was a discussion concerning the possibility of C.G. purchasing additional drugs, including cocaine, from Popkin. Popkin quoted C.G. prices for various quantities of the drug and encouraged C.G. to come back and do business with him. At approximately 6:10 p.m., fifteen minutes after he entered the bar, C.G. left and drove in his vehicle to a prearranged location to meet Harris. Harris observed C.G. leave the bar and followed C.G. in his vehicle to their predetermined meeting place. After they both exited their vehicles, C.G. handed Harris the marijuana he had purchased from Popkin and told Harris what had happened in the bar. Harris field tested the marijuana. It tested positive. Harris placed the marijuana in a sealed bag and forwarded it to the crime laboratory of the Broward Sheriff's Office. Tests performed at the crime laboratory reflected that the substance that Popkin had sold C.G. was indeed marijuana. After consulting with Harris regarding the matter, C.G. returned to Lynda's Lounge on July 21, 1989, to make arrangements to purchase an ounce of cocaine. As he had been told to do by Popkin, C.G. discussed the matter with Lavarello. C.G. and Lavarello agreed on a purchase price. C.G. then left the bar to get money to make the purchase. After leaving the bar, C.G. went to the North Lauderdale police station and met with Harris. Harris searched C.G. and C.G.'s vehicle for drugs and found none. He then gave C.G. money with which to purchase an ounce of cocaine from Lavarello. Although C.G. and Lavarello had agreed upon a purchase price of $700.00, because it is a common practice of drug dealers to raise their prices immediately before the transaction is to take place, Harris gave C.G. $800.00 in the event Lavarello raised his price. C.G. then drove back to the bar, followed by Harris in another vehicle. After parking, C.G. exited his vehicle and entered the bar. Harris remained outside, across the street from the bar. C.G. approached Lavarello. It was too noisy inside the bar to talk so C.G. and Lavarello left and continued their conversation in C.G.'s vehicle, which was parked in the lot in front of the bar. Lavarello indicated to C.G. that he did not have the cocaine with him and needed to pick it up, but that C.G. would have to give him the entire purchase price before he did so. C.G. then excused himself. He thereupon contacted Harris and they both returned to the North Lauderdale police station. Harris did not want C.G. to give Lavarello that much money and have to wait for the cocaine to be delivered. He therefore decided to have C.G. purchase an eighth of an ounce, instead of an ounce, of cocaine from Lavarello, the purchase price of which, C.G. had been told, was $150.00. Accordingly, Harris took back $600.00 of the $800.00 he had given C.G. earlier that day. Harris then again searched C.G. for drugs and found none. C.G. thereupon headed directly back to the bar, with Harris following behind him in another vehicle. C.G. met with Lavarello at the bar. He told Lavarello that he wanted to purchase a eighth of an ounce, rather than an ounce, of cocaine. He gave Lavarello $200.00 and made arrangements to meet Lavarello later that day at the bar to receive delivery of the cocaine he had purchased. At Lavarello's request, C.G. drove Lavarello to Lavarello's girlfriend's house. C.G. then returned to the North Lauderdale police station. At all times during this journey, C.G. and his vehicle were under Harris' observation. At the police station, Harris again searched C.G. for contraband and found none. Later that day, C.G. and Harris went back to Lynda's Lounge in separate vehicles. Harris remained outside, as C.G. exited his vehicle and headed towards the front door of the bar, where he encountered Lavarello. C.G. and Lavarello then proceeded to C.G.'s vehicle, where Lavarello handed C.G. a package containing cocaine. Upon receiving the package, C.G. complained that it appeared that he had received less cocaine than he had been promised. Lavarello admitted that he had given his girlfriend some of the cocaine that originally had been intended for C.G. To compensate for the missing cocaine, Lavarello gave C.G. a package containing marijuana. In addition to the cocaine and marijuana, Lavarello also gave C.G. a $20.00 bill and a gas receipt reflecting the amount of money he had paid for gasoline during his trip to pick up the cocaine. Following this transaction, C.G. and Lavarello went their separate ways. As he had done after the buy he had made on July 19, 1989, C.G. met Harris at a prearranged location. He handed Harris everything that Lavarello had given him. Harris searched C.G. and found no additional contraband. Harris then field tested both the cocaine and the marijuana. The test results were positive. After conducting these field tests, Harris placed the cocaine and marijuana in a sealed bag and forwarded the bag to the crime laboratory of the Broward Sheriff's Office. Tests performed at the crime laboratory reflected that the substances in question were indeed cocaine and marijuana. Popkin and Lavarello were subsequently arrested by Harris. 1/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order finding Respondent guilty of the violations of Section 561.29(1), Florida Statutes, charged in the January 9, 1990, Notice to Show Cause and revoking alcoholic beverage license #16-03032 2- COP held by Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this & day of October, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675
Findings Of Fact Respondent is Alice Waldo, holder of Alcoholic Beverage License No. 45- 00293, Series 2-COP, for a licensed premises known as the SILVER DOLLAR CAFE located in Lake County, Florida. On or about February 4, 1989, an investigator employed by Petitioner entered the licensed premises of Respondent. While in Respondent's facility, the investigator observed several patrons smoking a substance, which by its smell and usage, he believed to be marijuana. The investigator then met with a patron, ordered a small quantity of crack cocaine and handed the patron some money for the forthcoming purchase. The patron then asked Respondent to hold the money while he left the premises to retrieve the controlled substance from his automobile. Shortly thereafter, the patron returned with the cocaine. The investigator showed the substance to Respondent's daughter, who had taken her mother's place at the bar. The purpose of displaying the drug to the proprietor, or the proprietor's daughter in this instance, was to later illustrate that Respondent condoned the use and sale of the drug in connection with her licensed premises. A field test by the investigator and a later laboratory test confirmed the identity of the substance purchased as crack cocaine. Petitioner's investigator again entered Respondent's facility on or about February 10, 1989. On this occasion, the investigator purchased a quantity of marijuana from a female patron, then took the substance over to the bar where he proceeded to roll a marijuana cigarette in the presence of Petitioner. At no time did Petitioner inform the investigator that controlled substances were not allowed on the licensed premises. Upon later laboratory analysis, the substance was confirmed to be marijuana. Upon leaving Respondent's facility on February 10, 1989, Petitioner's investigator met an individual within 10 feet of the front door of the premises who sold him a quantity of a substance later determined by laboratory analysis to be crack cocaine. On or about February 24, 1989, Petitioner's investigator entered Respondent's facility. On the front porch of Respondent's facility, the investigator purchased a quantity of a substance later determined by the investigator's field test and a subsequent laboratory analysis to be crack cocaine. After completing the purchase of the substance, the investigator went inside the facility, placed the material on the counter and recounted to Respondent that it had just been purchased on the front porch. Respondent made no reply to the investigator's announcement and, instead, complied with his request for change for a $20 bill. Upon receipt of the change, the investigator wrapped the crack cocaine in a $1 bill in Respondent's presence. On February 28, 1989, Petitioner's investigator again entered Respondent's facility. He approached a black female named "Lilly" and gave her $20 for the purchase of crack cocaine. However, after the lady accepted the $20 and left to retrieve the cocaine, she did not return. The investigator complained to Respondent that "Lilly" had failed to deliver the drug to him. The investigator also told Respondent that the lady could keep the $20 if Respondent would get him some of the drug. At that time, Respondent referred the investigator to a group of three male patrons on the front porch of the facility who appeared to be smoking marijuana. At no time during this incident did Respondent take any steps to prevent the use of any controlled substances on the licensed premises. Subsequently, Petitioner's investigator returned to Respondent's facility on or about March 4, 1989. He purchased a beer and went outside to the front porch of the facility. He observed a number of furtive transactions where currency was passed between certain individuals. He noticed Respondent go to one of the automobiles in the facility parking lot, get into the automobile, engage in conversation with the occupants and shortly thereafter emerge from the automobile. Respondent went back into the facility. The investigator approached a black male and gave him $20 for some crack cocaine. The black male took the investigator's money, then went directly to the automobile where Respondent had been previously. He returned shortly thereafter to the investigator with two pieces of a substance which later tested positive, via field test and laboratory analysis, as cocaine. During another visit to Respondent's facility on or about March 9, 1989, Petitioner's investigator observed a patron rolling what appeared to be marijuana cigarettes in Respondent's presence. While Respondent took no action to prohibit the use or possession of the apparently controlled substance, she did get her coat and leave shortly after the investigator's arrival. On or about March 11, 1989, Petitioner's investigator reentered Respondent's facility. The investigator purchased a small quantity of crack cocaine from a black male on the front porch of the facility. The investigator then took the controlled substance inside the building and displayed it to Respondent, telling her that he had just obtained the drug on the porch. Respondent asked the investigator if he was going to smoke the drug, and he replied yes. Later, a field test and laboratory analysis confirmed the drug to be cocaine. On or about March 17, 1989, Petitioner's investigator visited Respondent's facility. This time the investigator purchased a small quantity of a drug on the front porch of the building which, upon subsequent field test and laboratory analysis, was confirmed to be cocaine. After completing the purchase, the investigator took the substance inside and showed it to Respondent. Later in the evening, the investigator engaged Respondent in conversation on the front porch and related to her that he had observed numerous drug transactions taking place in her facility. Respondent smiled in acknowledgment of the investigator's statement and replied that she certainly hoped he was not a policeman. He told her that he was not a policeman. Respondent took no action to prohibit further use or transactions relating to drugs on the premises.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered revoking Respondent's beverage license bearing number 45-00293, Series 2- COP. DONE AND ENTERED this 13th day of June, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1989 APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-10. Addressed. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: EDWIN R. IVY, ESQUIRE BOX 3223 ORLANDO, FLORIDA 32810 THOMAS A. KLEIN, ESQUIRE DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007 STEPHEN R. MACNAMARA, SECRETARY DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007 LEONARD IVEY, DIRECTOR DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007
The Issue 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 Whether the Alcoholic Beverage License No. 31-0001, Series 8-COP, issued to the Respondent, should be reinstated and the action dismissed or whether the Petitioner should impose a civil penalty, suspend, or revoke the liquor license of the Respondent, pursuant to Section 561.29(1)(a), Florida Statutes, due to a violation of Chapter 893, Florida Statutes, by Respondent's agents, officers, servants or employees while in the scope of their employment, or by negligently overlooking or condoning violations of Chapter 893, Florida Statutes, by others on the licensed premises; or did the licensee violate Section 561.29(1)(c), Florida Statutes, by maintaining a nuisance on the licensed premises in that flagrant violations of Chapter 823 and 893, Florida Statutes, were allowed.
Findings Of Fact The Respondent is the holder of Alcoholic Beverage License No. 31-0001, Series 8-COP, for a licensed premises known as the Suwannee Lounge and Package, which is located at the intersection of U.S. Highway 19 and State Road 26, Fanning Springs, Florida. Richard D. Chase, a/k/a "Teddy Bear", is the President of the licensed corporation. On February 24, 1990, the Petitioner suspended the Respondent's license by an Emergency Suspension Order. The Petitioner made a timely request for hearing. 1984, Mr. and Mrs. Richard D. Chase, together with two Miami investors, formed Bear Cap Investments, Inc. and purchased the above-referenced alcoholic beverage license. Mr. and Mrs. Chase each had over eight (8) years experience in managing bars at American Legion Posts in the Dade County area. The Miami corporate investors relied upon Mr. Chase's management skills and were not involved in the day-to-day operation of the business. Only licensee Richard Chase, a corporate officer and stockholder of Bear Cap Investments, Inc., was involved in the alleged violation under Chapter 561, Florida Statutes. Mr. Chase is a 15% owner of stock and the other stockholders, John Gmyrek (40% stockholder); Tom Sullivan (30% stockholder); and Phyllis Chase (15% stockholder), are not directly involved with the management of the lounge. The licensed premises was a concrete structure, 60 x 100 feet, sitting on a two-acre parcel of land. The lounge was in Gilchrist County, but the Levy County line ran through the parking lot. The front entrance, facing U.S. 19, has an enclosed 12 x 12 foot foyer with standard glass doors as an entrance to the building. To the left of the entrance, there was a 40-foot bar that ran from a storage room towards the front of the establishment and could seat approximately 40 people on both sides of the U-shaped structure. A second bar to the right of the door, running approximately 15 feet along the west wall, was used only on weekends. In front of the bar was an opened walkway area, then tables and chairs which could seat approximately 200 people, a dance floor and a bandstand. Further, to the right of this bar was an area with game machines and pool tables. Along the south wall was an office for licensee Richard Chase, which was approximately 10 x 12 feet, along the corridor leading to the bathrooms. A diagram of the interior was introduced as Hearing Officer Exhibit 1. The parking lot held upwards of 100 vehicles on weekends. It was illuminated by floodlights and by a sign 60 feet from the foyer door. Entertainment, other than on weekends, was provided by a juke box. Agents in the Special ABSET Unit of the Division of Alcoholic Beverages and Tobacco conducted an investigation in Gilchrist County, Florida, from February 3-22, 1990 of drug sales in licensed liquor establishments following a complaint from the Police Chief of Trenton, Florida, in a letter to the Department, and following conferences with Gilchrist County Sheriff Jim Floyd. In addition to the Suwannee Lounge, the Division of Alcoholic Beverages and Tobacco investigated the Old Tavern, the Hitching Post, and the Santa Fe Lounge. The investigation of the premises was conducted by Agents Randy West, Anthony Drinkwater, Betty D. Warner and Janine Krause. When any of the agents were at the Suwannee Lounge, they were kept under surveillance from a van in the parking lot by Agents Reylius Thompson and Ernest Green. ABSET Director Bruce Ashley also participated in some of the surveillance from the van. Due to Agent Krause's employment as a waitress at the Suwannee Lounge, agents were there during the weekend nights of February 9th, 10th and 16th and 17th. On the night of February 3, 1990, investigators from the DABT arrived on the licensed premises for the purpose of conducting an undercover investigation. They reported nothing untoward, and left, returning again on February 5, 1990. T-I- 26,27. February 4, 1990 was a Saturday. On the night of February 4, 1990, there was a band and an all-male review at the licensed premises. T-I-27. On that date, Investigators Krause and Warner entered the premises together, where they were covered inside by Investigator West and outside by Investigators Ernest Green and Ray Thompson. On this occasion, Krause spoke with Richard Chase with whom she indicated she was trying to find a job. Chase suggested the Wal-Mart; and after finding that Krause had experience as a waitress, he also suggested she see Diana, his head bartender, who did all of the hiring. February 4, 1990 was a Sunday. (a) On the night of February 5, 1990, Investigators Krause, Warner, and West returned to the licensed premises. T-I-30. There was no band; however, there was a juke box playing. A customer named Dave, last name unknown (LNU), was seated at the bar, one seat away from where Krause was sitting, and talking to an unidentified man next to Krause. Krause could not hear the conversation between the two men. After Dave got up, the unidentified man next to Krause commented to her that Dave had been the second person to offer to sell him drugs on that evening. Dave subsequently approached Investigator West, who was standing close to the door, and offered to sell marijuana to West. West agreed; they both walked to Dave's truck, which was parked in the parking lot; and West purchased marijuana from Dave. T-I-149. Thereafter, Dave approached Krause, who was walking to the bathroom, and offered to sell her marijuana. She agreed, sought out Investigator Warner, who accompanied her to Dave's truck, where Krause purchased marijuana from Dave. T-I- 31. Subsequently, one of the male dancers, who Krause had met the night before, approached Krause and asked her whether she had purchased drugs from Dave. T-I-33. She smiled and the dancer approached Dave. Dave and the dancer left the bar, returned sometime later, and asked Krause if she had some cigarette papers. T-I-33. She said she did not and the dancer left again. T- I-34. Krause and another patron sat at the bar carrying on a discussion about drug use during this period. While they were talking, Viola was tending bar in their vicinity. T-1-34. The dancer returned and said he had found some cigarette papers. He and Dave asked if Krause wanted to go get high. Krause asked where and was advised they could go to the "band house", a small building detached from the licensed premises in which the male dancers were being permitted to stay. The dancer and Dave left and returned in a few minutes. T-I-36. Krause and Warner left the premises shortly after that. T-I-37. The drugs purchased by West and Krause were analyzed and found to be marijuana. Richard Chase was not on the premises on February 5, 1990, which was a Monday. On February 7, 1990, Investigator Drinkwater entered the licensed premises. While there, he went to the bathroom, where he observed three males bent over what appeared to be three "lines" of cocaine on the bathroom vanity. Upon his return to the bar, he was asked by a customer, Wayne Vincent (or Vinson), if he wanted to "do a line" of drugs. On the night of February 8, 1990, Krause and Warner entered the licensed premises covered by Jackson and Green in the van parked in the parking lot. T-I-37. While inside the premises, Krause and Warner were invited by a customer, Carlton Jackson, a patron of the bar, to leave the bar and smoke marijuana in his car in the parking lot of the bar. They smoked marijuana (or simulated smoking it) in Jackson's car, which he moved from the front of the door to the side of the building. February 8, 1990, was a Thursday. (a) On the night of Friday, February 9, 1990, Krause worked as a waitress on the licensed premises. She was accompanied by Warner. T-I-112 and T-I-39. As she began to wait on tables, she was given a tray, money, and a ticket book by Diana, the head bartender, who did not give any instructions to Krause about what to do about drugs on the premises. Richard Chase was on the premises on February 9, 1990. Krause observed the patrons as she waited tables. She saw patrons walk outside together and re-enter the premises. Krause observed the patrons had a marijuana smell about them, their eyes were bloodshot; and they appeared to be under the influence. Other patrons were talking about using drugs. Krause had six offers to take her outside and get high, which she declined, and was given a marijuana cigarette as a tip. On February 10, 1990, Investigator West negotiated the purchase of half a gram of cocaine in the licensed premises from a customer, Wayne Vinson or Vincent. Vinson or Vincent delivered the cocaine to West in the bathroom of the bar. On February 11, 1990, Krause worked as a waitress again at the licensed premises. T-I-43. Annie LNU, another waitress, advised Krause that she could safely discuss drugs with her and most others there, but not in front of Diana, the head bartender. Annie also told Krause she could not leave her station during her shift, except to go to the bathroom and doing drugs in there was "not cool." After closing on that night, Krause displayed a package of cigarette papers to Richard Chase and thought that he saw them. Outside the premises, a couple of white, male patrons commented to Krause that she "had just missed some snort." (a) On the evening of February 16, 1990 and on the morning of February 17, 1990, Krause worked as a waitress at the licensed premises. T-I-46. Investigator Warner was covering Krause inside the premises. Warner was introduced to a customer, James Corbin, by Investigator Drinkwater, who told Corbin that Warner wanted to purchase some cocaine. Corbin told Warner he could get her a half gram of cocaine. Later, Drinkwater came to Warner and said that Corbin did not trust her and would only do business through him. Warner gave $40.00 to Drinkwater while he was standing at the second bar in the vicinity of the bathrooms. Subsequently, Corbin delivered a bag of cocaine to Drinkwater in the bathroom, and Drinkwater, in turn, delivered the cocaine to Warner. Warner walked up to Krause in the middle of the darkened lounge while she was working, held up a small bag of cocaine, and stated, "See what I have got." Krause held up a marijuana cigarette which she had received from a patron and stated, "See what I have got." This occurred while the band was playing, and their conversation was loud enough that they could hear one another. She left the marijuana cigarette on her tray for 45 minutes while waiting on customers and ordering drinks from the bar. Krause was working a station serviced by Wanda LNU, and if Wanda saw the marijuana cigarette, Wanda made no comment about it. After closing, Krause conversed with Richard Chase in his office as he was counting money. She advised him that it had been a weird night and that she had had several offers to go outside and get high. Chase answered her with one word, "Yeah." (a) On February 17, 1990, Krause worked as a waitress at the licensed premises. T-I-50. Krause asked a patron, Mitch LNU, if he could find a bag of marijuana for her. Mitch later told Krause that he had found a marijuana cigarette for her, and it would be great to smoke that after work. T-I-51. Krause also told a patron named Shannon LNU that she was looking for a quarter of an ounce of marijuana. Shannon later told her that he had looked at a bag of marijuana but that it was over priced. Investigator Warner approached James Corbin and asked him if he could get her another half gram of cocaine. Warner got $40.00 from her purse at the bar, delivered it to James Corbin, and Corbin subsequently delivered a bag of cocaine to Warner in the vicinity of the hallway to the bathrooms. T-I-51 and T-I-120. Warner showed Krause the cocaine in the middle of the bar; however, the lights were turned down. Krause put her tray down at her station, went to the bathroom with Warner and pretended as if they had taken cocaine. Krause talked with Annie and told her that it had been a bad night, and the only good thing that had happened was that she had received a marijuana cigarette for a tip. Annie replied to Krause that she wished someone would leave her a marijuana cigarette. T-I-53. Krause told Wanda, her bartender, that someone had walked out on a drink tab, and someone had left her a marijuana cigarette as a tip. Wanda commented that that sometimes happened. T-I-53. Krause showed the marijuana cigarette to Rob LNU, a member of the band and his girlfriend, Sharon LNU. Rob tried to get her to split it with them, but Krause refused. T-I-53. As Krause left the premises that night, Krause showed Chase a marijuana cigarette outside the premises which she had gotten as a tip and commented that it was the only good thing that had happened that night. Chase laughed and put his arm around her. On February 18, 1990, Krause and Warner entered the premises as patrons. Another patron, Tommy LNU, asked them if they wanted to go outside and smoke a marijuana cigarette. They left the bar with Tommy, went to his truck which was across the parking lot in view of the front door, and simulated smoking a marijuana cigarette. Tommy also gave them the remains of several marijuana cigarettes. On February 21-22, 1990, Krause and Warner entered the licensed premises. T-I-60 and T-I-129. Investigators West and Drinkwater were sitting at the bar when Krause and Warner arrived. Investigator Drinkwater purchased marijuana from Daniel "Dano" McKenzie and Investigator West purchased cocaine at the bar of the licensed premises. T-I-l64-166, T-I-60 and T-I-129. At the time of the purchase, the bartender and manager, Diana Kirkland was tending bar by herself, (T-I-82) and had her back turned towards West and McKenzie while they were conversing. During these sales, West and Drinkwater were seated at the end of the main bar closest to the main entrance, and Kirkland was standing in the middle of the main bar approximately 15-20 feet away. See Hearing Officer's Exhibit 1. During the transaction, West stated that Kirkland was standing there looking over at her customers and looking back at West and McKenzie. Although Krause heard part of the conversation between McKenzie and West (T-I-57), Kirkland did not hear the conversation (T-I-254), and although West held up the bags of drugs, Kirkland did not see them. On February 21-22, 1990, Krause purchased a half gram of cocaine from McKenzie for $40.00 while sitting at the back bar. McKenzie told her to be real careful around the people in the bar and told Krause to find him when he was on the door and he would tell her which people were okay. McKenzie was a major source of drug trafficking on the premises. McKenzie described himself as a part-time employee of the premises. He was hired and paid by Neal Nielson, who was a regular employee, to fill in for him. When working, McKenzie had access to the storeroom and did various tasks, to include collecting money, checking identification, and filling up coolers. He advised Krause on February 21-22, 1990 to be careful about talking about drugs around Viola and Barbara LNU. On that night, McKenzie was not working and was not an employee of the licensed premises. On February 24, 1990, a raid was conducted of the licensed premises by agents of several law enforcement agencies. During the raid, all of the customers and employees were forced to leave the premises where they were checked by narcotics dogs. The premises was then searched with the assistance of these dogs. This revealed a cache of drugs which were found in the area in which McKenzie had been working and several marijuana cigarette butts discovered in a spittoon in the pool playing area of the bar. No other drugs were found on the premises, customers, or employees. There were no written policies on drug use or signs prohibiting it on the premises. T-I-50 The only regular, full-time employee who discussed drugs and drug use with agent Krause was "Annie" Curiel, who had worked at the bar for only five (5) weekends prior to her discussion on February 9, 1990. She warned Agent Krause not to talk about marijuana to Diana, the Manager. The only drugs found by agents and law enforcement officers, using a drug-sniffing dog on February 24, 1990, the night the Emergency Suspension Order was served, were those belonging to Daniel "Dano" McKenzie and a few marijuana "roaches" in a spittoon near the pool table. Every patron and employee was searched by the drug-sniffing dog as they exited. A complete search of the premises, including storage areas above the bar, by the dog, turned up no illegal narcotics. Agents Thompson and Green, in their surveillance van in the parking lot, did not witness, hear, or photograph any drug transaction during the entire operation, to include those in the parking lot. While agent Krause was wearing a body bug, it was not possible to hear clearly during business hours due to the noise and at no time did Thompson and Green hear any discussion of drugs. The bug was used mostly for Agent Krause's safety after closing. All of the employees, with the exception of Investigator Krause, were aware of the licensee policy that drug use by employees would not be tolerated. The licensee had instructed the manager, Diana Kirkland, to fire a former employee, Denise, after a patron reported to bartender, Wanda Sampley, that the waitress was using cocaine in the bathroom. Most employees were aware that they would be fired if found to be using drugs or that patrons would be ejected and barred from the establishment if they were involved in drug activity. Sheriff Jim Floyd reported that there were 97 calls to the Suwannee Lounge from February 24, 1989 until February 23, 1990, of which only 15 (or 15%) were related to drugs. Of the five (5) Series 8-COP licenses in his jurisdiction, two (2) are in the City of Trenton for which he has no statistics. The Suwannee Lounge is by far the largest licensed premises in his jurisdiction. The only other licensed premises for which he was able to provide statistics indicated that eight (8) drug arrests were made in the parking lot of the Santa Fe Lounge, another licensed premises, in one evening. The licensed premises is not charged for maintaining a nuisance for anything other than drug activity, as stated in Count 15 of the Order to Show Cause. Licensee Richard Chase had requested uniformed Gilchrist County Deputies, to be paid by the licensee, inside his premises and in his parking lot as a deterrent to any violation of the law; however, Sheriff Jim Floyd denied the employees permission because of potential liability by the Sheriff's Department. Licensee Richard Chase was aware of the Beverage Department's policy of revoking beverage licenses on premises where the owners or licensees were involved in the sale or possession of drugs. Licensee Chase had signed up for the voluntary Responsible Vendors Program, which went into effect on January 1st, of which training on handling illegal drug activities on the premises is a minor component. On June 16, 1990, the building housing the licensed premises burned from unknown causes, leaving only the concrete block walls standing.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, recommended that the charge against the licensee be dismissed. RECOMMENDED this 24th day of September, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 24th day of September, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-1194 Respondent's Proposed Findings of Fact Adopted as paragraph 9. Adopted as paragraphs 1, 6, 7 and 8. Adopted as paragraphs 10 and 12. Summary of evidence. Adopted. Adopted. True, but irrelevant. True, but irrelevant. Adopted in part as paragraph 3; remainder is irrelevant. Adopted as paragraph 33. True, discussed in detail in different context. True, discussed in detail in different context. Adopted as paragraph 27. Adopted as paragraph 28. First sentence rejected as contrary to facts. Second sentence true but summarized. Adopted as paragraph 24. First sentence true but irrelevant. Second sentence, drug use by employees is discussed in detail. Adopted and discussed in detail in Conclusions of Law. Adopted as paragraph 22. Adopted as paragraphs 22 and 23. Adopted as paragraph 31. Adopted as paragraph 32. Adopted as paragraph 5. Adopted as paragraphs 2 and 34. Petitioner's Proposed Findings of Fact Adopted as paragraph 1. Adopted as paragraph 3. Adopted as paragraph 13. Adopted as paragraph 13. Adopted as paragraph 13. Irrelevant. Adopted as paragraph 14. Adopted as paragraph 15. Adopted as paragraph 16. Adopted as paragraph 17. Adopted as paragraph 18. The facts show that Krause showed Chase drugs and spoke to him about drugs when he was otherwise occupied and in ambiguous language. This does not establish that he was knowledgeable of violations occurring. Adopted as paragraph 19. Adopted as paragraph 24. Adopted as paragraph 19. Adopted as paragraph 19. Adopted as paragraph 20. Adopted as paragraph 20. Adopted as paragraph 20. Adopted as paragraph 21. Adopted as paragraph 22. Adopted as paragraph 22. Adopted as paragraph 22. Adopted as paragraph 23. Rejected as hearsay. First sentence true and adopted as paragraphs 26 and 30. Second sentence rejected as argument. 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 Joseph A. Sole, Esq. General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Thomas A. Klein, Esq. Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Don Reid, Esq. 605 N.E. 1st Street, Suite E Gainesville, FL 32601
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to these proceedings, Respondent, doing business as The Knight Out, was the holder of alcoholic beverage license number 72-79, series 1-COP. Prior to the hearing . . . in this cause, Respondent had turned in his license to the Petitioner. To the rear of the licensed premises, Respondent operated a bottle club known as The Knight Club. The Knight Club is attached to and shares restroom facilities with The Knight Out. On March 27, 1975, Respondent was served with a "Notice to show cause why beverage license should not have civil penalty assessed against it or be suspended or revoked" on the grounds that on Sunday, January 26, 1975: his employee, Vicki Lynn Williamson, at approximately 2:00 am., did sell at the licensed premises, an alcoholic beverage, a can of Budweiser beer, to beverage officer L. E. Williams during the time that the sale and consumption of alcoholic beverages is prohibited, in violation of City of Perry Ordinance 394 enacted pursuant to F.S. s. 562.14; at approximately 4:00 a.m., he sold at the licensed premises an alcoholic beverage, one can of Budweiser beer, to beverage officer Williams in violation of City of Perry Ordinance 394; at approximately 5:00 a.m., he sold at the licensed premises an alcoholic beverage, one can of Budweiser beer, to beverage officer Williams in violation of City of Perry Ordinance 394; at approximately 6:05 a.m., he refused to admit to the licensed premises beverage officer Jack Garrett, while in the performance of his official duties, contrary to F.S. s. 562.41; and at approximately 6:05 a.m., he had in his possession, custody and control, at the licensed premises a partially full 4/5 quart of Smirnoff Vodka, an alcoholic beverage not authorized to be sold by him, in violation of F.S. s. 562.02. Beverage officer L. E. Williams went to The Knight Out the weekend of January 24, 1975, in order to conduct an undercover investigation of the licensed premises. He observed the Respondent, between 11:30 p.m. and 12:00 a.m. on January 24th, remove four cases of beer from The Knight Out and place them into a small room in The Knight Club portion of the premises. At about 1:00 a.m. on January 25th, Williams paid a $2.00 cover charge, entered The Knight Club and remained there until 6:00 a.m. On Saturday night, January 25th, beverage officer Williams again went to The Knight Out and, at about 11:30 p.m., again observed Respondent moving five cases of beer from The Knight Out to the rear portion, The Knight Club. Williams entered The Knight Club during the early hours of January 26, 1975, carrying a can of beer with him. He left at approximately 2:30 a.m., met with other beverage agents, and returned to The Knight Club at about 3:45 a.m., paying the cover charge of $2.00. At 4:00 a.m. and again at 5:00 a.m. on January 26, 1975, Williams purchased from Respondent Poppell cans of Budweiser beer at seventy-five cents per can. Williams retained control of the two beer cans and at about 6:30 a.m. he tagged them as evidence. They were admitted into evidence at the hearing as Exhibits 4 and 5. At approximately 6:05 a.m. on January 26, 1975, beverage officer Jack Garrett, along with several other law enforcement agents, knocked on the front door of The Knight Club seeking entrance thereto. Respondent told Garrett to get in front of the peephole on the door so that he could see who was there. Garrett, who had known Respondent for some fifteen years, testified that he showed his identification card to Respondent through the peephole, whereupon Respondent replied that he would not let him in. Beverage officer T. A. Hicks, present with Garrett at the time, confirmed these events. Respondent and two other witnesses present at the scene testified that Respondent asked the persons at the front door to identify themselves, but that no response was received. Shortly thereafter, Officer Garrett, along with other law enforcement officers, went around to the other side of The Knight Club and entered, without knocking, the ladies rest room which led to the inside of The Knight Club. Once inside, they met Respondent leaving a small room with a handful of liquor bottles. One such bottle was seized - - a partially filled bottle of Smirnoff Vodka - - and was received into evidence at the hearing as Exhibit 6. Shirrell Woodalf testified that she had come to The Knight Out on the morning in question with another couple. When the other couple left, they gave her their bottle of Smirnoff Vodka. She then gave the bottle to Respondent to keep for her in his office. Woodalf identified Exhibit 6 as being the same bottle as that left with her and given to Respondent. Four witnesses who often frequented The Knight Club testified that patrons of the Club always brought their own beer or other alcoholic beverages into the Club. Respondent would cool their beer for them and keep their bottles in his office if they so desired. Respondent sometimes charged a small fee for cooling the beer and he sold setups for mixed drinks. These four witnesses never saw Respondent sell either beer or other alcoholic beverages in The Knight Club.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that: Paragraphs 1 and 5 of the notice to show cause be dismissed; Respondent be found guilty of violating F.S. ss. 562.14 and 562.41, as set forth in paragraphs 2, 3 and 4 of the notice to show cause; and Respondent's alcoholic beverage license be revoked. Respectfully submitted and entered 26th day of May, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Charles Nuzum Director Division of Beverage 725 South Bronough Street Tallahassee, Florida Charles Tunnicliff, Esquire Department of Business Regulation 725 South Bronough Street, Room 210 Johns Building Tallahassee, Florida 32304 Conrad C. Bishop, Jr., Esquire Weed & Bishop P.O. Box 1090 Perry, Florida 32347
The Issue Whether Respondent committed the offenses alleged in the notice to show cause and, if so, what disciplinary action should be taken.
Findings Of Fact The bar At all times pertinent hereto, respondent, Melba Mosca, held alcoholic beverage license number 23-00737, series 2-COP, for the premises known as 71 Bar and Grill (the "premises"), located at 1220 Normandy Drive, Miami Beach, Dade County, Florida. The investigation On January 28, 1994, Officer Luis King of the Miami Beach Police Department, operating undercover, entered the licensed premises as part of an investigation of illegal drug activity. The premises is a small bar, containing one main bar, a pool table, a pinball machine and a jukebox. At the time he entered, Officer King observed between 15 and 20 patrons, a female bartender, and another individual behind the bar, later identified as "Dave." At the time, Dave appeared to Officer King to be the manager or in charge of the premises since he had the keys to the register, full access to the bar and the remainder of the premises, and actively controlled the bartender and patrons. During subsequent visits, Officer King discovered that Dave was the son of the owner, respondent Melba Mosca, and his activities in the bar, from bartending, scheduling the bartenders, and ordering bar supplies and food, confirmed his employment and management status in the bar. 1/ That evening, Officer King observed one Phillipi Blanco (Flip), a known narcotics dealer, on the premises, and the pattern of his activities suggested to Officer King that Flip might be dealing narcotics. Accordingly, Officer King resolved to return to the premises on another occasion. On February 11, 1994, Officer King returned to the premises at or about 9:30 p.m., and noticed Dave, the only employee on the premises, tending the bar. Dave appeared very agitated that evening, consistent with being under the influence of some controlled substance, and exhibited some strange behavior, such as exposing his genitalia while working behind the bar. On one occasion that night, Dave locked himself in the men's restroom with unknown patrons for approximately one-half hour, leaving the bar unattended. That same evening, Officer King met with Eugene Scott, who he had met the previous night, in the men's restroom, and Scott offered to sell Officer King one plastic baggie of cocaine for $30. Officer King accepted, and paid Scott $30 in exchange for the cocaine. 2/ On February 12, 1994, Officer King returned to the licensed premises at or about 7:30 p.m. Officer King did not recall if Dave was on the premises that evening, but about 8:40 p.m. he approached Eugene Scott by the back door and asked Scott if he could purchase some more cocaine. Scott stated that he did not have any cocaine but that he did have some marijuana. In exchange for $10, Officer King purchased a baggie of marijuana from Scott. As noted, this transaction occurred near the back door, and was not observable from the bar. During the evening of February 19, 1994, Officer King returned to the licensed premises to continue his investigation. While at the premises, Officer King played pool with a patron known as Manuel Fernandez (Manny), who he knew from previous visits and during the course of that game asked Manny if he could purchase some cocaine. Manny refused. Later, Officer King observed Flip and an unknown patron enter the restroom. Officer King and Manny entered the restroom and Officer King asked Flip if he could buy some cocaine. Flip refused, because he "did not know " Officer King "well enough." Immediately after Flip left the restroom, Manny asked Officer King what he wanted and Officer King replied that he wanted to purchase $20 worth of cocaine. Officer King handed Manny $20 and a few minutes later Manny joined Officer King at the pool table and handed him a plastic baggie, secreted inside a matchbook, containing cocaine. Dave was in the bar at the time, but the proof fails to demonstrate that he observed or had the opportunity to observe any of these discussions or transactions. On March 1, 1994, at or about 7:45 p.m., Officer King returned to the licensed premises to continue his investigation, and during the course of that visit engaged Dave in a game of pool. While playing pool, Officer King was approached by a patron known as "Gennie," who Officer King had observed on the premises previously. Gennie asked Officer King if he needed anything and Officer King replied that he wished to purchase $20 worth of cocaine. Officer King gave Gennie $20 and Gennie approached Dave and asked if he had any cocaine. Dave replied that it would be a little while, and shortly thereafter he left the premises. A few minutes later Dave returned with an unknown male, entered the men's restroom, and locked the door. A few minutes later, Dave exited the restroom, and he and Gennie engaged in a hand-to-hand transaction. Gennie then went to the lady's restroom, and on her return handed Officer King a plastic baggie of cocaine and explained she had taken a "hit" before delivering it to him. Later that evening, Officer King asked Gennie if she could get him another $20 worth of cocaine. Gennie replied that would be "no problem," and approached Dave and asked him for another $20 worth of cocaine. Shortly thereafter, Dave and the unknown male again entered the men's restroom and locked the door. When he exited a few moments later, Dave went directly to Gennie and they again engaged in a hand-to-hand transaction. Gennie then went to the lady's restroom, and when she emerged a few moments later handed Officer King a small plastic baggie containing cocaine. Gennie again advised Officer King that she had taken a "hit" prior to delivery, as "her payment". On March 4, 1994, Officer King returned to the licensed premises to continue his investigation. Upon entering the premises Officer King went directly to the restroom and was followed by Scott. Scott asked Officer King if he "needed anything." Officer King told Scott he wished to purchase some cocaine, and later that he wished to purchase some marijuana and crack cocaine. Scott advised Officer King that it would be a while before he could get the cocaine, but that he could get the marijuana and crack cocaine immediately for $10 each. Officer King gave Scott $20, and Scott left the premises. A few minutes later, Scott returned to the premises and handed Officer King a plastic baggie containing marijuana and a rock of crack cocaine. Officer King then left the premises, but returned about 30 minutes later. While Officer King was playing pool with Dave, Scott returned to the premises, approached Officer King, and handed Officer King a plastic baggie containing cocaine. This transaction occurred openly, with no attempt by Scott to conceal the transaction from Dave. The owner's explanation Respondent, Melba Mosca, is 70 years of age, and has owned the 71 Bar and Grill since April 1993. According to respondent, she has been very alert to prevent drugs from being present on the premises, has signs posted in the bar prohibiting drugs, and has instructed her bartenders not to allow drugs and to phone the police if they see any drugs. Respondent further averred that in October 1993 she was hospitalized for an operation, and her ability to supervise the premises since that time was impaired. Notwithstanding, she was on the premises two to three times a day, and at shift change. According to respondent, her son Dave "watched" the premises for her when she was ill, but was not an employee. The testimony of Helia Mercado, respondent's nighttime bartender, was consistent with that of respondent. As heretofore noted in endnote 1, the testimony of respondent and Ms. Mercado that Dave was not an employee or agent of the owner was rejected as not persuasive or credible. Indeed, respondent's own testimony that Dave "watched" the premises for her, and Officer King's observation of his activities, compel the conclusion that Dave was an agent or employee of the owner. The testimony of respondent and Ms. Mercado that they had never observed any narcotics activity on the premises, as well as the efforts that were taken to discourage it, while of questionable credibility, stands unrefuted. Indeed, there is no proof of record that respondent was present on the premises when any of the transactions occurred that are the subject matter of the notice to show cause, and no proof that she or any of her agents or employees, except for Dave, were ever in a position to observe, much less observed, those or any other illicit activities on the premises. Under such circumstances, and given the limited number of transactions, the limited time of day at which they occurred, and the surreptitious nature of the majority of the transactions at issue, it cannot be concluded that respondent, based on the competent proof of record, fostered, condoned, or negligently overlooked such illegal activity.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the notice to show cause. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of April 1994. WILLIAM J. KENDRICK 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 15th day of April 1994.
The Issue This is a case in which the Petitioner seeks to suspend, revoke, and/or take other disciplinary action against the Respondent's alcoholic beverage license. The primary grounds for the proposed disciplinary action are that the licensee has permitted patrons on the licensed premises to sell cocaine on numerous occasions in violation of various statutory provisions. The specific allegations are set forth in a Notice To Show Cause dated February 27, 1989. An Emergency Order Of Suspension was served on the Respondent on February 27, 1989. The Respondent requested an emergency hearing, which was conducted on March 7, 1989. Both parties offered evidence at the hearing. Following the hearing the parties requested and were allowed until March 17, 1989, within which to file their proposed recommended orders. The Petitioner filed a timely proposed recommended order. The Respondent has not filed any post-hearing documents. The proposed findings of fact submitted by the Petitioner are specifically addressed in the appendix to this recommended order.
Findings Of Fact Based on the stipulations of the parties and on the evidence received at the final hearing, I make the following findings of fact: The Respondent, Ocean Drive Hotel Corporation, d/b/a/ Ocean Haven Restaurant, is the holder of Alcoholic Beverage License Number 23-3568, Series 2-COP, for a licensed premises known as Ocean Haven Restaurant, which is located at 155 Ocean Drive, Miami Beach, Dade County, Florida. The licensed premises are located in a neighborhood which is somewhat less than wholesome; a neighborhood in which there is a substantial amount of illegal drug related activity. It is a neighborhood in which it is not uncommon for police officers to observe people who have been previously arrested for drug violations. The Respondent corporation owns the licensed premises, as well as the hotel premises of which the licensed premises are a part. The Respondent corporation is owned by Mr. Heriberto Velasco. Mr. Velasco is the president of the Respondent corporation and he is the manager of both the hotel and the restaurant businesses. Mr. Velasco lives in the hotel with his wife, his mother, and one of his sons. Mr. Velasco takes most of his meals in the restaurant which comprises the licensed premises, and usually visits the licensed premises at least three times a day for that purpose. There is no evidence that he regularly spends any other time supervising activities in the restaurant. There are four employees in the restaurant that comprises the licensed premises. Two of those employees are Gloria E. Berlioz and Antonia Rodriguez de Alcina. The latter is also known by the name of Nora. Ms. Berlioz and Ms. Alcina have both been employees on the licensed premises for a year or two. Ms. Alcina is employed as a waitress. Ms. Berlioz is employed as a cook. During the course of an undercover investigation during the months of January and February of 1989, the following transactions involving controlled substances took place within the licensed premises: On January 10, 1989, a patron known as Loraine sold cocaine to Investigator Huguet. On January 18, 1989, a patron named Roberto Cantero sold cocaine to Investigator Huguet. On January 19, 1989, an unknown white Latin male patron sold cocaine to a patron named Tommy. On January 25, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. On January 26, 1989, an unknown Latin male patron sold cocaine to Investigator Huguet. On February 6, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. On February 7, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. On February 10, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet in two separate transactions. On February 10, 1989, a patron named Roberto Cantero also sold cocaine to Investigator Lerra. On February 17, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet, in two separate transactions. On February 17, 1989, a patron named Roberto Cantero also delivered cocaine to an unknown white male patron. On February 22, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. During the course of the vast majority of the drug transactions described in the preceding paragraph, the people involved in the transactions discussed the subject of drug transactions in normal conversational tones of voice. During the majority of those conversations, either Ms. Berlioz or Ms. Alcina was standing close enough to have heard the conversations. During some of the conversations, Ms. Berlioz or Ms. Alcina was standing immediately on the other side of the lunch counter, within two or three feet from the conversations. During the course of the vast majority of the drug transactions described in Paragraph 5, above, the drugs involved in the transactions were openly displayed on the table top or on the counter top in front of the participants to the transactions. In each of the transactions involving purchases by Investigator Huguet, the investigator attempted to be obvious about what he was doing by holding the drugs in front of his face to inspect them before putting the drugs in his pocket. During the vast majority of those transactions, Ms. Berlioz or Ms. Alcina was standing close enough to have observed the transactions. During some of the transactions, Ms. Berlioz or Ms. Alcina was standing immediately on the other side of the lunch counter within two or three feet from the drug transactions. One of the drug transactions took place while Mr. Heriberto Velasco was standing several feet away. All of the drug transactions described in Paragraph 5, above, took place within the licensed premises during business hours when employees and patrons were present on the licensed premises. None of the employees ever called the police or asked any of the parties to the drug transactions to leave the licensed premises. Mr. Heriberto Velasco was aware that the licensed premises are located in a neighborhood in which there is a high level of illegal drug activity. Nevertheless, he did not take any special precautions to prevent or detect drug activity on the licensed premises other than to tell the employees to let him know if they saw any drug activity. Mr. Heriberto Velasco has never asked the Division of Alcoholic Beverages and Tobacco for assistance or suggestions with respect to preventing or eliminating drug activity on the licensed premises, even though the Division of Alcoholic Beverages and Tobacco advises all licensees of the availability of such assistance. Mr. Heriberto Velasco did not have actual knowledge that drug transactions were taking place on the licensed premises. He is opposed to drug trafficking and he has not knowingly permitted sales of drugs in his hotel or on the licensed premises. He has instructed his employees in the hotel and in the restaurant to call him if they observe any drug related activity so that he can throw out anyone involved in such activity. He has thrown people out of the hotel when he suspected they were involved in drug related activities. The employees in the licensed premises never told him about any drug related activity on the premises. Mr. Velasco never observed any activity on the licensed premises that he thought was drug related activity. Mr. Velasco does not know what crack cocaine looks like. Mr. Eric Velasco is the 20-year-old son of Mr. Heriberto Velasco. The son lives at the hotel with his parents and helps with the management of the hotel and restaurant to the extent he can between going to college and working at another near-by job. Mr. Eric Velasco has never observed any activity in the licensed premises that appeared to him to be drug related activity. He does not know what crack cocaine looks like. In brief summary, the vast majority of the drug transactions described in Paragraph 5, above, took place in plain view within the licensed premises. The open exchanges of drugs and money in conjunction with the open conversations about drug transactions demonstrate a persistent pattern of open and flagrant drug activity. The subject drug transactions were sufficiently open that they would have been noticed by a reasonably diligent licensee.
Recommendation On the basis of all of the foregoing, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a final order in this case revoking the Respondent's alcoholic beverage license number 23-3568, series 2-COP, for the premises located at 155 Ocean Drive, Miami Beach, Dade County, Florida. DONE AND ENTERED this 19th day of April, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1096 The following are my specific rulings on all of the proposed findings of fact submitted by all parties. Findings proposed by Petitioner Paragraph 1: Accepted. Paragraph 2: Rejected as subordinate and unnecessary details. Paragraph 3: Rejected as constituting subordinate and unnecessary details. Further, some details proposed in this paragraph are not supported by clear and convincing evidence. Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19: Accepted in substance, with many subordinate and unnecessary details omitted. Paragraph 20: Rejected as irrelevant. Paragraph 21: Accepted in substance. Findings proposed by Respondent (None) COPIES FURNISHED: Katherine A. Emrich, Esquire Assistant General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Gino P. Negretti, Esquire 44 West Flagler Street Miami, Florida 33130 Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
