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
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.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent P R of Brevard County, Inc., doing business as Shark Lounge, was the holder of Florida Alcoholic Beverage License Series 4-COP No. 15-00177 for the Shark Lounge, located at 411 North Orange Avenue, Cocoa Beach, Florida. On March 15, 1984, Terry A. Altman, a special agent for the U.S. Treasury Bureau of Alcohol, Tobacco and Firearms (BATF), in an undercover capacity and in the company of Investigator Gloria Smith of the Division of Alcoholic Beverages and Tobacco (DABT), also in an undercover capacity, entered the Shark Lounge at approximately 2:00 a.m. They had been there before on March 12, 1984, when an employee of the Respondent, the bouncer Harry Haynes, had offered to sell marijuana to Smith. On this March 15th visit, they spoke with an employee by the name of Sherry, and Smith asked if Haynes was there. When Haynes showed up, Smith asked him if he had been able to obtain any of the marijuana he had mentioned previously, whereupon Haynes told her that cocaine was easier to get than marijuana. However, Haynes made some telephone calls and shortly thereafter requested that Altman come outside with him. Altman complied, at which time Haynes requested $30. Altman paid the $30 to Haynes and then went back inside the bar. A little later, Haynes came in and motioned Altman and Smith to come outside, where Haynes handed Altman a plastic envelope containing a green leafy substance. Upon subsequent laboratory analysis, this substance was determined to be marijuana. On March 22, 1984, Altman and Smith went back to Respondent's lounge, where Smith saw Haynes behind the bar. At this time, she asked Haynes if she could get cocaine, and Haynes indicated that he had already ordered some for her. At approximately 2:00 a.m., Haynes came in and told Altman to go outside with him. Haynes quoted a price of $50 a half gram for the substance. Altman paid Haynes the $50 and went back inside, while Haynes went someplace else. A few minutes later, Haynes came back into the bar and requested that Altman again come outside. When he did so, Haynes handed him a small plastic bag of a white powder, suspected to be cocaine, which Altman took back into the lounge and gave to Smith. Sitting at the table and making no effort to conceal her actions, Smith held the package up to the light, tapped the bag to get the substance to one corner, and then put it into her purse. Haynes at that time guaranteed the quality of the substance and offered to get them more in the future if they so desired. This substance was subsequently analyzed and determined to be cocaine. Thereafter, on March 24, 1984, Smith, in the company of undercover agent Jenkins, entered the lounge at about 9:30 p.m. She introduced Jenkins to Haynes and asked Haynes if he could get some cocaine for them. Haynes replied that he could do so but that his source would not be in until later in the evening. At approximately 3:30 the following morning, while Haynes was busy attempting to break up a fight which had just started, an individual identified as Haynes' source entered the bar, and Haynes pointed out Smith to him. This source, identified as Ric, came to Smith and gave her what was subsequently identified as cocaine in a plastic bag, for which she paid him $50. By this time, the lights, which had previously been turned out in an attempt to help stop the fight, were back on, and there was no attempt on the part of Ric to conceal the transaction. Later in the evening, Haynes asked Smith if she had been taken care of. Again, on April 8, 1984, Altman entered the Shark Lounge at approximately midnight. He approached Haynes, who was acting as a bouncer at the entrance, and asked to buy a half gram of cocaine. Haynes asked Altman to step outside and agreed to procure the cocaine for Altman if he would front the money for it. Altman paid Haynes $60 in cash at the Shark Lounge, and, pursuant to the agreement between the parties, the cocaine was subsequently delivered later that afternoon at the Canaveral Pier. The transfer of money from Altman to Haynes took place near the door in front of an independent security guard hired by Respondent. Haynes explained the transfer as being a payoff of a bet. On April 17, 1984, at approximately 9:00 p.m., Smith and Altman again entered the Shark Lounge and engaged Haynes in conversation, at which time Smith indicated that she wanted some more cocaine. Haynes replied he would get it, and Altman gave him $40 to purchase a half gram of cocaine. It was understood between them that Smith and Altman would be back the following evening to pick up the cocaine. When they did come back at approximately 11:45 p.m. on April 18, Haynes, who was out in the parking lot, motioned Altman to get into an Oldsmobile car, which Altman did. Haynes then removed the package of cocaine from the car's ashtray and attempted to give it to Altman, saying that it was good stuff. Altman, however, indicated that Smith had paid for it and that Haynes should give it directly to her. The two men then got out of the car and approached Smith, who was standing near the outside of the door to the lounge. Haynes attempted to give Smith the cocaine at that time, but she would not accept it and instead went into the lounge to use the restroom. As Haynes and Altman followed Smith into the lounge, Haynes pressed the cocaine onto Altman, indicating that he wanted to get rid of it. When Smith came back from the restroom a few moments later, Haynes told her he had already given the cocaine to Altman, who took it out of his pocket and put it in Smith's lap. She examined the cocaine and put it in her purse in full view of the other patrons of the bar. This substance, delivered by Haynes to Aliman and in turn to Smith, was subsequently identified as cocaine. Neither agent went back to the bar until April 26, 1984, at approximately 1:30 a.m., when Altman and Smith, in the company of Special Agent Eslinger of the U.S. Drug Enforcement Administration (DEA), entered the bar. They contacted Haynes, who was working as a bartender at the time, and Smith asked him to get a half gram of cocaine for her. Haynes agreed to do this and told her to check with him the next day to see if he had procured it. At the time of her request, Smith gave Haynes $50 for the cocaine. No further contact was had until late in the evening of April 30, 1984, when Altman, Smith, and an unidentified confidential informant entered the lounge. Smith asked Haynes at that time if he had obtained the cocaine she had paid for on April 26, and Haynes said that he had. This conversation took place near the door, where Haynes was working as a bouncer. Haynes took a plastic envelope containing a white powder from his right front pocket and gave it to Smith, who brought it back to the table and showed it to Altman. Later, pursuant to Smith's invitation, Haynes came to their table and said that over the weekend he had obtained some sensinilla, some speed, and another substance. Smith said she would like to have some speed, and Haynes said he could get 30 capsules of it for $15, which she gave to him. At this point, Haynes showed Smith a package of a black substance which he identified as hashish and offered to sell to her for $5. Smith did not buy any, however, and she, Altman, and the informant departed the lounge after telling Haynes they would be back for the speed the next night. The white powdery substance that Smith obtained from Haynes that night was subsequently tested and found to be cocaine. When Smith went back to the lounge on May 4, 1984, at 11:00 p.m., this time with Eslinger alone, she contacted Haynes, who was working as the bouncer. Haynes told her he had the speed which she had paid for previously on April 30 and told them to go sit down. Shortly thereafter, Haynes motioned for Smith to come over to the door area, and, when she did so, he briefly stepped outside the lounge and then immediately came back. When he returned, Haynes put a package inside Smith's purse, which she saw and which he stated was only 25 capsules instead of the 30 she had paid for. At this point, Smith asked Haynes if she could pay him $50 in advance for a half gram of cocaine, which Eslinger would pick up the following day at the Canaveral Pier. When Haynes agreed, Smith gave him the $50 while they were inside the bar. Thereafter, she and Eslinger left. The capsules which Smith received from Haynes that night in the lounge did not contain amphetamines or any other determinable controlled substance. When Altman and Smith next returned to the bar on June 3, 1984, they found Haynes standing by the entrance. About a half hour after they went in, Smith asked Haynes if he had any cocaine and, when he replied in the affirmative, gave him $50 in advance for a half gram of cocaine. The arrangements made at that time were that the cocaine would be picked up on June Somewhat later, when Altman and Smith were leaving, Haynes told Smith not to leave yet, that his source was getting the cocaine out of his car. Altman and Smith waited, and a few minutes later Haynes came up to Smith at the bar and dropped into her purse a small plastic bag which contained a white powdery substance subsequently identified as cocaine. When Haynes dropped the bag into her purse, Smith took it out and examined it in plain view at the bar, which was well lighted, before putting it back into her right-hand pocket. Shortly thereafter, Altman and Smith left. The packages containing cocaine, which Smith held up to the light to examine, were approximately an inch and a half by an inch and a half in size. Although other employees were in the immediate area at the time that she held the packages up, and Altman does not know hew they could have avoided seeing what Smith was doing, Altman cannot say for sure that the employees did see it, nor can Smith. No other employees of the Respondent were involved in any of the drug deals except for Haynes. No other employees were in the immediate area when the sales were made. Neither Smith, Altman, nor Eslinger engaged in any discussion of drugs with any other employee of the bar on the numerous times they were in there. Smith contends that she first went into the bar on March 12, 1984, with Altman to pick up some drugs offered at another bar. She started talking to a male at her right and asked him if he knew where she could get some grass. This individual said yes and went to make a phone call. Later, he identified himself as Harry Haynes and said that he worked there as a bouncer but was not on duty on that particular night. The drugs were not delivered that night, either. On March 14, at 2:00 a.m., Altman and Smith again went into the lounge. Smith approached Sherry, the bartender, and asked for Haynes, who was not there. Smith told Sherry that Haynes was to get her some grass, and, in Smith's opinion, Sherry did not react to this disclosure at all. Sherry, on the other hand, denies any conversation with Smith about drugs. She indicated that Smith came to her frequently and asked for Haynes but never mentioned drugs in any capacity. Had Smith done so, Sherry states, she would have asked her to leave. This last comment stands to defeat Sherry's credibility, however. It is unlikely that the comment was made. It is also unlikely that an experienced bartender, as Sherry is, would react by asking a repeat patron to leave for mentioning that Haynes was to get marijuana. Sherry is the only one in the bar, except for Haynes, to whom Smith mentioned drugs, although she had a conversation about drugs with Haynes in front of Ric, who is apparently also a bouncer. When Smith asked about that, Haynes said that it was okay. There is a divergence of opinion regarding the reputation of the Shark Lounge as a source of drugs. Randy Arles, a Melbourne Beach police officer on loan to the Cocoa Beach Police Department Vice Squad since mid-March of 1984 and operating undercover, was contacted previously by a confidential informant who indicated there was cocaine traffic at the Shark Lounge. Based on that information, Arles and another officer went in to try to make a buy but were unsuccessful because, as it was explained to him, his identity as a police officer had been disclosed. Information reaching him from such street sources as confidential informants and prostitutes indicated that the Shark Lounge was known as a place to buy cocaine and that Haynes, the bouncer, was the seller. This latter information, however, is hearsay testimony and, with the exception of that relative to Haynes, cannot serve as the basis for a finding of fact. The identity of Haynes as the seller is corroborated by other independent admissible evidence, however. On the other hand, Officer Charles B. Autry, who has been with the Cocoa Beach Police Department for 14 years, has come into contact with the Shark Lounge and its owner on several occasions and has been inside the lounge four or five times. To his knowledge, it is a well-run establishment, and he has never in his 14 years been called there while on duty. The owner is very businesslike and very cooperative. He runs a tight ship and encourages the police to come inside both while on and off duty. In Officer Autry's opinion, considering today's morality, any place where crowds congregate has the potential for drugs, including the Shark Lounge, which he would not class as a nuisance. This opinion was also held by Major Gary Hummel, who has been with the Cocoa Beach Police Department for 14 years. He has been in the Shark Lounge on many occasions and knows the owner personally. He considers Mr. Autry to be an upright businessman who is not himself involved in drugs. The lounge in question here is one of only two lounges in Cocoa Beach that Hummel will patronize and take his wife. Both socially and professionally, he knows of no employees who sell drugs at the lounge, but the employees know he is a police officer, and this may have some bearing on their behavior in his presence. Hummel believes the owner is tough and knows that he will fire any employee for being drunk on duty. He also discharges employees for even the slightest infractions of rules. This bar is not a nuisance in his opinion but is a good clean place where many of the Cape workers go. These sentiments were reinforced by the proffered testimony of Officers William MacDonald and Al Otto of the Cocoa Beach Police Department, who both have been in the Shark Lounge frequently both socially and professionally. They have been encouraged to come in by the owner and find the lounge to be a clean, well-run, drug-free operation. Sharon LeVaugh (Sherry) has worked at the lounge as a bartender for six and a half years and runs the floor operation. Her immediate supervisor is the owner, Mr. Autry, who, to her knowledge, has a strict policy against drugs. Anyone using them, whether it be an employee or a patron, is immediately put out of the place. There is a low turnover of employees at the Shark Lounge, because it is a good place to work. During the six and a half years she has worked there, Sherry has never seen drugs used at the bar. She had no idea that Harry Haynes was dealing in drugs and doesn't think anyone else did. The Shark Lounge is dark inside like a normal lounge. The crowd which patronizes it is made up of regulars, both young and old, with repeat patronage common. A lot of business comes from Space Center employees, and police are encouraged to come in frequently. Friday and Saturday nights are quite busy, with 200 to 300 people in attendance. The bar offers live music seven nights a week, and the music is a noisy rock and roll band. Chad J. Milkint, the manager of the Shark Lounge, has worked there for a little over a year. Before that, he worked at another bar in the area for three years and has been in the lounge business both in Florida and outside the state for more than 11 years. When Milkint was hired, the owner was very clear about the "no drug policy," and he has followed it closely. He has, on occasion, thrown people out for being intoxicated either on drugs or alcohol. There is, he claims, a practical reason for this. If a patron is intoxicated, he is not buying drinks, and they are in business to sell drinks. Milkint did not know Haynes was using drugs or selling them. If he had, he would have fired him immediately. It was not at all unusual for Haynes to go outside as part of his job. In fact, Haynes' duties included a patrol of the outside area around the bar three or four times a night. Milkint admits he did no background check on Haynes except to check with his former employer, who gave Haynes a favorable recommendation. Haynes was a part-time employee who worked two or three days a week as a backup to the main barmen in addition to his duties as a bouncer. In a normal week, Haynes would work approximately 20 hours and had been employed sporadically by the bar for only five or six months. During the period of employment at the lounge, Haynes also worked at the Canaveral Pier. When Milkint checked with the beverage manager there, he was told that Haynes' performance was satisfactory. Milkint is frequently in the bar and observes what goes on. He denies ever seeing anyone check baggies by tapping or holding them up to the light, as described by Altman and Smith. He does not believe his employees saw that, either, because he feels that if they had seen it they would have reported it. The owner also supervises on a day-to-day basis, and in Milkint's opinion the operation is a good, ethical, well-run establishment. The employees are good, the entertainment is good, and the drinks are good and sold at fair prices. Milkint does not know how he could have prevented the sales by Haynes that took place there. Gary C. Autry, sole stock owner of the Shark Lounge, has owned the establishment for eight years. He used to work more in the bar than he does now, but a recent blood condition has developed that has made him curtail his activities. When Autry came down with this condition, he hired Milkint as a manager and an individual by the name of Mike Harris as an assistant. He has known both of them for years and knew both had previous lounge experience. When he hired them, Autry told them immediately that his policy was "no drugs whatsoever." Although he cannot spend as much time in the establishment as he used to, Autry is nonetheless there seven days a week and closely supervises his operation. His bouncers are trained to handle drugs and work with the police. Had Autry known Haynes was selling or using drugs, Haynes would have been dismissed immediately. When he hires employees, he asks them their habits. He believes that because of his policies his turnover of employees is as low as it is.
The Issue The parties stipulated as to the identification of all drugs seized and purchased by the investigators. The issues presented in this case are as follows: Whether the individual counts as set forth in the Notice to Show Cause took place as alleged; Whether Jerry Alden ("Alden") was an employee, agent or servant of the Respondent; Whether Respondent was culpably negligent in the supervision of the licensed premises. Both parties have submitted posthearing proposed findings of fact. A ruling has been made on each proposed findings of fact in the Appendix to this Recommended Order.
Findings Of Fact At all times pertinent to the allegations in the Notice to Show Cause, the Respondent, Michael George Shlepr, d/b/a Eau Gallie Inn, was the holder of a valid Alcoholic Beverage License #15-1912, series 4-COP, issued by the Petitioner to the Respondent for the Eau Gallie Inn located at 1841 Avocado Avenue, Melbourne, Brevard County, Florida. On January 22, 1986, Detective Bruce Triolo of the Melbourne Police Department ("MPD") entered the licensed premises as part of an undercover investigation of narcotics trafficking. Triolo was accompanied by a confidential informant who frequented the licensed premises and was well known by the patrons and employees of the licensed premises. During said evening, Triolo was approached by an individual known as Jerry Alden (and also referred to as "Jerry Holden" during the hearing), who asked Triolo if he wanted to buy marijuana. Triolo indicated he desired to purchase marijuana and thereafter met Alden in the parking lot of the licensed premises where Triolo purchased two bags of marijuana from Alden. On January 23, 1986, Triolo again entered the licensed premises as part of an undercover investigation. Triolo and Alden negotiated the sale of marijuana inside the licensed premises and Triolo met Alden in the picnic area adjacent to the building (see diagram in Petitioner's Exhibit 1) where Triolo purchased marijuana from Alden. This picnic area was included in the diagram of the licensed premises and made a part thereof at the suggestion of an agency employee after the undercover investigation of the licensed premises had begun. This area is irregularly shaped and has at least one entrance to it which cannot be observed from inside the licensed premises. On January 24, 1986, Triolo again entered the licensed premises as part of an undercover investigation. Triolo discussed purchasing marijuana from Alden. On this occasion, Alden asked the bartender, "Lynn," to hand him his jacket. Lynn brought Alden his jacket from a small office area behind the bar and gave it to Alden. Alden took a bag of marijuana from the jacket and delivered it to Triolo while they were sitting at the bar of the licensed premises. On January 28, 1986, Triolo entered the licensed premises as part of an undercover investigation and spoke with the bartender identified as "Bruce." Triolo asked Bruce where he could find Alden and was advised that Alden "was around." Triolo asked Bruce about purchasing marijuana and Bruce offered to sell Triolo one marijuana cigarette. Bruce took $1.50 from Triolo's change that was on the bar as payment for the cigarette. On January 31, 1986, Triolo entered the licensed premises as part of an undercover investigation. Triolo negotiated with Alden in the licensed premises the purchase of marijuana, which was delivered and paid for in the men's bathroom of the licensed premises by Alden. At that time, Alden asked Triolo if he was interested in purchasing any cocaine. Triolo said that he was and Alden left and returned in approximately 15 minutes. At that time, Alden met Triolo by the picnic table in the picnic area. Alden showed Triolo several cocaine rocks and sold Triolo one for $20.00. During the time that this transaction was taking place, the bartender, "Shawn," was standing at the back door of the licensed premises observing what was taking place in the picnic area. On February 25, 1986, Triolo entered the licensed premises with Agent Richard White of the Division of Alcoholic Beverages and Tobacco as part of an undercover investigation. Triolo purchased a bag of marijuana from Alden while sitting at the bar. Shawn, who was the bartender, handed Alden the bag of marijuana from behind the bar and Alden delivered the bag to Triolo. On February 26, 1986, Triolo entered the licensed premises as part of an undercover investigation. While there, he discussed the purchase of marijuana from "Marie," another patron. Marie delivered the marijuana to Triolo inside the licensed premises and Triolo passed the marijuana to White in the open while both men were sitting at the bar in the licensed premises. As part of an undercover investigation, on March 7, 1986, Triolo entered the licensed premises where he negotiated the purchase of a bag of marijuana with Alden. Alden only had one bag and a white female patron had also indicated she wanted to purchase a bag of marijuana. Alden met with the white female and Triolo at the picnic table in the picnic area and split the bag of marijuana between the white female and Triolo. On the same night, a patron, Brian Riordon, sold and delivered cocaine to Triolo in the parking lot of the licensed premises. On March 9, 1986, Triolo and White attended a party in the licensed premises for which they had purchased tickets as part of the continuing investigation. On this occasion, which was on a Sunday, Shlepr was present and served beer to Triolo and White at 11:57 a.m., contrary to Melbourne City Ordinance that prohibits the sale of alcoholic beverages prior to 1:00 p.m. on Sundays. On March 13, 1986, White entered the licensed premises as part of an undercover investigation with Triolo. White engaged in wagering on a game of liar's poker with another patron, "Tim," at the bar in front of the bartender. On March 14, 1986, Triolo entered the licensed premises and negotiated the purchase of marijuana with Alden. Triolo gave Alden $60.00; however, Alden returned and said he could not get the marijuana and gave Triolo his money back. The negotiations for the purchase took place in the licensed premises. On March 15, 1986, White entered the licensed premises with Triolo as part of their investigation. White began playing pool for money with Alden and another patron. The bartender, Lynn, was present and observed their gambling. On March 19, 1986, Triolo entered the licensed premises as part of an undercover investigation and discussed with Alden purchasing marijuana. Alden advised Triolo that "the marijuana was on its way over." In a short while, a white male patron, Dennis Thorp, arrived and delivered the marijuana to Alden, who in turn delivered it to Triolo. Subsequently, on March 19, 1986, Alden sold a stolen outboard motor to Triolo at an apartment in the vicinity of the licensed premises. The negotiations for the purchase of the stolen outboard motor took place on the licensed premises. On March 20, 1986, Triolo entered the licensed premises with White as part of an undercover investigation. Alden, with Dennis Thorp, sold and delivered marijuana to Triolo on the licensed premises. White engaged in a pool game with Alden for money on the same evening. As part of the continuing investigation, on March 26, 1986, Triolo entered the licensed premises where he discussed the purchase of marijuana with Alden. He subsequently drove Alden to a house in Melbourne which Alden entered and returned with several bags of marijuana. Alden explained that he had more orders for marijuana than he had bags of marijuana. As a result, the potential purchasers, to include Triolo, met with Alden at the picnic table in the picnic area at the Eau Gallie Inn where the bags were split. Triolo received part of a bag in return for driving Alden to pick up the drug. On April 1, 1986, Triolo entered the licensed premises as part of the ongoing investigation and discussed the purchase of marijuana with Alden. Alden sold and delivered marijuana to Triolo on the licensed premises. Subsequently, Alden approached Triolo with another white male, identified as "Ted" and discussed with Triolo the purchase of cocaine. Triolo gave money to Ted, and Ted and Shawn, a bartender at the Eau Gallie Inn, left the licensed premises together and returned with cocaine. Ted delivered cocaine to Triolo on the licensed premises. No evidence was received that Shawn was on duty the night in question. On April 3, 1986, Triolo entered the licensed premises as part of the continuing investigation. On this occasion he negotiated the purchase of marijuana from Alden and Thorp and cocaine from Alden and Ted on the premises. The cocaine was delivered in the picnic area. Evidence was not clear on where the marijuana was delivered. On April 4, 1986, Triolo entered the licensed premises as part of the continuing investigation. A patron, Mark Harrold, injected himself with drugs in the bathroom of the licensed premises while Detective Triolo guarded the door. On April 5, 1986, Triolo and White entered the licensed premises as part of the continuing investigation and spoke with Alden. A purchase of marijuana was negotiated and money was delivered by Triolo to Alden; however, when Alden returned with the marijuana, he had less marijuana than potential purchasers. Alden went into the kitchen area behind the bar where he split a bag and delivered half to Bruce, the bartender on duty, and half to Triolo. Alden approached White on the premises about purchasing a Colt revolver which Alden represented had been stolen. On April 9, 1986, Triolo entered the licensed premises as part of the continuing investigation. On this occasion, Alden delivered to Agent White in Triolo's presence, cocaine which White held up to the light and examined while standing at the pool table in the licensed premises. On said night, no marijuana was available for purchase; however, a number of people were in the picnic area smoking marijuana and free-basing cocaine. Also on April 9, 1986, Alden approached Triolo about purchasing some amphetamines. Alden left the premises and when he returned, sold to Triolo a substance represented to be amphetamines. However, upon analysis it was determined to be a caffeine derivative. Alden collaborated in this transaction with a patron known as "Doc Holliday." On the night of April 11/12, 1986, Agent White entered the licensed premises as part of the investigation. He discussed purchase of marijuana with Alden, who left the premises and returned after midnight. Alden delivered marijuana to White in the men's room. Shawn the bartender was in the toilet, came out, and saw Alden and White concluding the purchase of the drugs. Shawn asked if Alden would have a bag left which he could purchase. On April 15, 1986, Agent White brought up marijuana with the licensee, Shlepr, who was tending bar. Shlepr told White to put the marijuana back in his pocket; that he did not want to see it in the licensed premises. On April 16, 1986, Alden sold and delivered cocaine to Triolo on the licensed premises. Conflicting testimony was received concerning the status of Alden as an employee. The records of the licensed premises do not reflect Alden was an employee; however, the records of at least one other employee were also demonstrated to be incomplete or inaccurate. The licensee, Shlepr, testified that Alden was not an employee but was a regular patron who voluntarily would do helpful things around the licensed premises on occasion. Shlepr gave Alden free drinks on occasion in recognition of Alden's patronage and help. Triolo and White observed Alden on occasion taking beer from the stock room to the bar, clearing tables, and in one instance going next door to get Shlepr change. Triolo and White also observed that Alden had easy access to the area behind the bar, the small office behind the bar, the telephone, and cash register. Testimony was also received that during a portion of the investigation, Alden was dating one of the regular barmaids. Another of the regular bartenders testified Alden was not an employee. Based upon the most credible evidence, it is found Alden was not an employee; however, Alden was clearly permitted too much freedom in the licensed premises. The licensee, Shlepr, worked full-time on the evening shift at a local business in Melbourne at all times relevant to this complaint. He was on the premises from noon until the commencement of his shift and returned to the licensed premises after he got off work to close the licensed premises. He did not have a manager on the premises and the only employee present when Shlepr was not there was the bartender. The bartenders were given great freedom; one going so far as giving away drinks. The only two allegations which Shlepr could have observed or participated in were when Shlepr served the investigators beer on Sunday, March 9, and when White showed Shlepr marijuana on April 15. There is no allegation Shlepr had knowledge of the other incidents. Gary Michael Gordon was a substitute bartender during the period of the investigation at the Eau Gallie Inn, during which time and unto the present he was the Respondent's roommate. The identification of all the drugs mentioned above is accurate. There have been no previous disciplinary actions against this licensee. No evidence was introduced in support of counts 24 and 32. Respondent had no direct knowledge of the drug trafficking and gambling.
Recommendation Considering the fact that the violations of Sections 561.29(1)(a) and (c), Florida Statutes, arise primarily from acts of omission and not commission, and that only very minor and technical violations were attributable to the Respondent personally, it is recommended that the Respondent's license be suspended for six months; that he be fined $1,000; and that his presence or the presence of a responsible manager on the premises be required as a condition for continued operation. DONE AND ORDERED this 28th day of May 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 28th day of May 1986. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-1343 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties. Both Petitioner and Respondent filed proposed findings of fact in this case. These proposed findings were read, considered, and adopted unless the proposed finding was rejected for the reason stated. Rulings on Proposed Findings of Fact Submitted by Petitioner Adopted in paragraph 1. Adopted in paragraph 2. (NOTE: Petitioner's Proposed Findings of Fact contains two paragraphs numbered "3"; the paragraphs are herein referred to as Page 2, Paragraph 3, or Page 3, Paragraph 3. All other paragraphs in Petitioner's findings are referred to by their indicated number. Page 2, Paragraph 3 Adopted in part; rejected in part and rewritten in paragraph 25. Page 3, Paragraph 3 Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 8. Adopted in paragraph 9. Adopted in paragraph 10. Adopted in paragraph 11. Adopted in paragraph 12. Adopted in paragraph 13. Adopted in paragraph 14. Adopted in paragraph 15. Adopted in paragraph 16. Adopted in paragraph 17. Adopted in paragraph 18. Adopted in paragraph 19. Adopted in paragraph 20. Rejected; contrary to evidence. Adopted in paragraph 21. Adopted in paragraph 22. Adopted in paragraph 24. While the evidence taken as a whole might lead to this conclusory fact, this proposal is rejected. The facts surrounding the individual incidents are clear enough to permit the hearing officer to conclude that the Respondent knew or should have known about the conduct and was negligent in his supervision. Rulings on Proposed Findings of Fact Submitted by Respondent Respondent's repeated proposal that there was no evidence that Respondent had knowledge of the incidents is modified and adopted in paragraphs 29 and 30. Adopted. Rejected - argument. Reject first and last sentence as argument or summarization. Adopts second sentence in paragraph 25. Rejected; contrary to evidence. Description and nature of picnic area is addressed in paragraph 3. Adopted in paragraphs 2 and 3. Adopted in paragraph 4. Adopted in paragraph 5. 9&10. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 8. Adopted in paragraph 9. Adopted in paragraph 10. Adopted in paragraph 11. Adopted in paragraphs 12 and 14. Adopted in paragraph 14. Adopted in paragraphs 15, 16, 17, 18 and 20. Adopted in part in paragraph 29. Rejected in part as contrary to the evidence. Adopted in part in paragraph 20. Adopted in paragraphs 21, 22 and 24. Rejected as to Dowd and Taylor because they worked earlier shifts during the day when a different group of patrons were at the bar. Rejected as to Gary Gordon because of credibility. Rejected as contrary to evidence. Rejected as cumulative summary of specific findings relating to each charge. First sentence: Similar findings were made in paragraph 23; the remainder is rejected based upon lack of credibility. Adopted in paragraph 28. COPIES FURNISHED: Mr. Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927 Mr. James Kearny Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Bell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 David W. Dyer, Esquire Post Office Box 3648 Indiatlantic, Florida 32903
The Issue The issue for consideration is whether Respondent's alcoholic beverage license should be disciplined because of the alleged misconduct outlined in the Notice to Show Cause filed by Petitioner.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent, Jose Manuel Acosta, was doing business at 425 Northwest 12th Avenue, Miami, Dade County, Florida, as La Romanita Cafeteria under a series 2-COP alcoholic beverage license number 23-03308. Orlando Huguet is an investigator with the Petitioner, DABT, and has had prior experience with the Coral Gables Police Department and as an investigator with the United States Air Force. During the course of his employment with the DABT, he has been involved in several undercover operations and is fully familiar with the appearance and properties of crack (rock) cocaine. He is also aware that it is a very addictive drug and that it is usually packaged in small cellophane bags but may come in other containers or not be packaged at all. During the period of mid-August to mid-October, 1987, Mr. Huguet, along with other law enforcement investigators (LEI) of DABT and agents with the Metropolitan Dade County Sheriff's Department and the Miami Police Department were involved in an undercover investigation of Respondent's place of business as part of an investigation of drugs in bars in Dade County. During the investigation, they would enter the premises in the afternoon or evening and attempt to purchase crack cocaine from the licensee, employees or patrons of the establishment. La Romanita's is primarily frequented by Spanish speaking customers. On August 28, 1987, Huguet entered La Romanita in an undercover capacity in the evening along with a confidential informant (CI). This confidential informant was utilized by Huguet in several undercover investigations. Huguet and the CI took seats at the bar counter and ordered drinks. Huguet observed the licensee, Jose Manuel Acosta, standing in front of him, behind the counter. Huguet overheard the CI ask Acosta if he (Acosta) had any drugs for sale today. Acosta commented that he had run out of drugs, but to try him tomorrow. Acosta continued to discuss drugs with Huguet, the CI, and other patrons. Subsequently, a black Latin male named Miguel approached Huguet and the CI and inquired if they were looking for drugs. Later on Huguet purchased cocaine ("perico" in Spanish) from Miguel outside the licensed premises. On August 29, 1987, at approximately 11:30 p.m., Huguet and the CI entered the licensed premises and observed the owner, Jose Manuel Acosta, sitting drown at a table with another man identified as Flaco. Huguet and the CI engaged Acosta in conversation which revealed that Acosta would provide one- half ounce of cocaine to the CI and Huguet at a future date. Subsequently, Huguet and the CI left the premises. On September 3, 1987, Huguet and the CI entered the establishment in the evening and approached the bar counter area and engaged in general conversation with a barmaid. Huguet observed a white Latin male, Tobacito, walk to the end of the bar counter, open a brown paper bag, and retrieve two pieces of suspected crack cocaine. Tobacito gave the suspected cocaine to a white Latin male in an open manner and the white Latin male gave Tobacito $20.00. Subsequently, Huguet instructed the CI to try to make a drug purchase from Tobacito. The CI approached Tobacito who reached into the same brown paper bag and took two pieces of rock ("piedra" in Spanish) cocaine and gave them to the CI in exchange for $20.00. Huguet witnessed this entire transaction and took the cocaine from the CI immediately after the drug transaction. Tobacito approached the table where Huguet and the CI were sitting, which is located on the east side of the premises. Tobacito negotiated a drug transaction with Huguet for $10.00 and then left the licensed premises, returning shortly thereafter with the cocaine. When Huguet received the piece of crack cocaine from Tobacito, he held it up to eye level, examined it, and then placed it in his front pocket. A short time later Huguet walked over to the bar counter, took a seat next to a patron named Warapito, and engaged in a general conversation about drugs. Warapito bragged that he sold the best rocks in town and stated they would enhance Huguet's sexual performance. During this conversation, Huguet retrieved the rock cocaine he had previously purchased and dropped it on the floor in front of several patrons. Warapito and another patron retrieved the cocaine and returned it to Huguet. This incident was observed by an employee, Papo, who is the son of the licensee, Jose Manuel Acosta. Thereafter, Tobacito came over to Huguet and Warapito and began to argue with Warapito over who sold the best rock cocaine. This conversation took place in front of several patrons and Papo. On September 4, 1987, Huguet entered La Romanita in the early afternoon and took a seat at one of the tables on the east side of the premises. Huguet engaged in conversation with an employee, Pepito, relative to cocaine. Pepito stated that he could get one-half ounce, but that he would have to make a phone call first since it was not on the premises. During this time, Huguet noted that Pepito did the duties and functions of an employee (serving patrons, working behind the counter, using the cash register and taking orders). Pepito proceeded to make the phone call and a short time later the licensee, Jose Manuel Acosta, entered the licensed premises carrying a large box which he gave to Pepito who took the box to the storage room. Within seconds Pepito exited the storage room, came to Huguet's table and handed him a baggie of cocaine wrapped in toilet paper. Huguet put the baggie on the table and unwrapped it to conf irm that it was cocaine. Huguet rewrapped the baggie, placed it in his right front pocket and handed Pepito $320.00. During this entire transaction, Huguet observed the licensee go by his table several times. On September 16, 1987, Huguet entered La Romanita at approximately 9:20 p.m. and observed that there were several patrons and two Latin female employees on duty. Huguet took a seat at a table located in the southeast area of the licensed premises and engaged in conversation with patron Tobacito. Huguet and Tobacito negotiated a cocaine transaction and Huguet gave $20.00 to Tobacito who exited the licensed premises, returning a short time later. Tobacito gave the crack cocaine to Huguet who held it up to eye level to examine. At this point, a patron, Jacquin, who was sitting at an adjacent table, offered Huguet a piece of aluminum foil in which to wrap the crack cocaine. Huguet took the foil from Jacquin and wrapped it around the cocaine. This transaction was observed by several patrons, as well as the two female employees. On September 18, 1987, Huguet entered the licensed premises and took a seat at the bar counter where he struck up a conversation with patron Tobacito. Tobacito asked Huguet if he wanted anything and Huguet responded that he was willing to purchase some cocaine. Tobacito stated that he had only one piece of crack cocaine left, but was willing to sell it for $20.00. Huguet agreed and Tobacito then left the licensed premises. Huguet approached Warapito and engaged in general conversation about cocaine. Warapito took a small piece of rock cocaine from his pocket and offered it to Huguet for $22.00. Huguet gave Warapito the $22.00 and in return received the rock cocaine. This transaction was observed by employee, Isabel, who had been waiting on the two patrons. Huguet noted that Isabel performed the functions and duties of an employee (waiting on customers, working behind the counter and using the cash register). A short time later Tobacito entered the licensed premises and handed Huguet a piece of rock cocaine. Huguet placed the cocaine on top of the bar counter and proceeded to examine it in plain view of employee Isabel. Huguet then placed the cocaine in a napkin, put it in his right front pocket, and paid Tobacito $20.00. On September 24, 1987, Huguet entered La Romanita and took a seat at the bar counter. Warapito approached Huguet and asked if he needed any rocks (cocaine). Huguet stated that he did and gave Warapito $20.00. This conversation took place in front of employee, Papo. Papo proceeded to leave the bar counter area, enter the women's restroom and lock the door. Another employee, identified as Chino, noted Papo's actions and advised Huguet that if Huguet ever wanted to "shoot up, snort up, or smoke up," that Chino would let him have the key to the women's bathroom. Huguet noted that Chino performed the duties and responsibilities of an employee (serving customers, working behind the counter and using the cash register). A short time later, Warapito reentered La Romanita and gave Huguet a large piece of rock cocaine. Huguet placed the cocaine on top of the bar counter, examined it, and proceeded to wrap it in a napkin in front of employees Chino and Alisa. Huguet stated that Alisa also performed the duties of an employee (waiting on customers, working behind the counter and using the cash register). Tobacito subsequently approached Huguet and handed him two pieces of rock cocaine which Huguet placed on top the bar counter and examined. He then wrapped the cocaine in a napkin. Alisa and Chino were in a position to observe this transaction as well. A short time later, Warapito and Tobacito began to argue over who sold the better rock cocaine. A few minutes later Huguet paid Tobacito $20.00 for the cocaine he had received and exited the licensed premises. On September 29, 1987, Huguet entered La Romanita and approached Tobacito who was sitting on a bar stool next to the counter. Tobacito told Huguet that he was sorry but that he had run out of rocks (cocaine). Huguet then called Warapito over to where he was sitting and asked him if he had any drugs. Warapito replied that he could get Huguet cocaine but would need $30.00 up front. Thereupon, Huguet handed him the money and Warapito exited the premises. This conversation took place in front of several patrons and an employee, Papo, who was standing behind the counter making change from the cash register. A short time later, Warapito entered La Romanita and handed Huguet two pieces of rock cocaine. Huguet took the cocaine, held it up to eye level to examine in front of several patrons and an employee, Chino, and then placed the cocaine in a napkin he had retrieved from the counter. On September 30, 1987, Huguet entered the premises and met with Warapito. Warapito offered to sell Huguet one gram of cocaine for $50.00 but stated that he would need the money up front. Huguet gave Warapito the money whereupon Warapito exited the premises. A short time later Huguet approached the bar counter and took a seat next to Tobacito. Tobacito advised Huguet that if he (Huguet) wanted any drugs that he (Tobacito) had two pieces of rock cocaine left and would sell them for $20.00. Huguet agreed to buy the cocaine whereupon Tobacito exited the premises. A short time later, Tobacito returned and presented the cocaine to Huguet in front of employees Alisa and Chino. Huguet took the two pieces of rock cocaine, examined them and made the comment that they were very dirty. Tobacito exclaimed that he had dropped the cocaine on the way back to La Romanita because he had been frightened when he had observed police officers nearby. Huguet then paid Tobacito the $20.00. A short time later, Warapito returned to the premises and stated that he had been unable to find any cocaine and returned the $50.00 to Huguet. On October 1, 1987, Huguet entered La Romanita and proceeded to the juke box area of the premises to have a conversation with Warapito. Warapito advised Huguet that he would try to obtain one gram of cocaine for him for $50.00. Huguet and Warapito discussed the drug purchase in further detail. Standing next to Huguet and Warapito was Jose Manuel Acosta, the licensee, who was in a position to hear the conversation. Subsequently, Warapito told Huguet that he thought he was a police officer. Huguet denied this allegation and then departed the licensed premises. On October 6, 1987, at approximately 12:15 p.m., Huguet entered La Romanita and approached Tobacito and Warapito at the bar where they were talking to employee Papo. Tobacito asked what Huguet wanted and Huguet responded that "twenty" would do. Huguet gave Tobacito the money and Tobacito exited the premises. Warapito subsequently told Huguet that he (Warapito) was going to secure a half gram for a friend of his and asked if Huguet wanted any cocaine as well. Huguet replied that he would like one gram and gave Warapito $50.00. A short time later, Tobacito reentered La Romanita and handed Huguet two rocks of cocaine in front of Papo. Huguet examined the cocaine at eye level, took a napkin from the bar counter and wrapped up the cocaine. A few minutes later, Warapito reentered La Romanita and gave Huguet back his money stating that he had been unable to locate any cocaine. All of the events referred to herein, with the exception of the drug purchase on August 28, 1987, took place on the licensed premises during business hours when other employees and patrons were present on the licensed premises. None of the employees or patrons who sold or delivered cocaine to Officer Huguet, or allowed others to do so, ever expressed any concern about any of the drug transactions and took no action to prevent or discourage drug transactions. The licensee, Jose Manuel Acosta, stated that he was neither present during most of the dates set out in the Notice to Show Cause nor did he hear or observe any drug transaction. He denied ever meeting or speaking with Officer Orlando Huguet about any cocaine transactions. He knew that drugs were easily obtainable in the area of town in which La Romanita was located, but did not believe that he had any drug problems on his premises. In light of the detailed testimony of Officer Huguet, which was recorded in his report, stating he and the CI spoke with Mr. Acosta on two occasions about purchasing cocaine and that on one other occasion Mr. Acosta was in a position to observe a cocaine transaction, Mr. Acosta's statements are not credible. Mr. Acosta did not perform polygraph examinations or background checks on his employees and did not use a security guard on the licensed premises. The premises contained no signs or other form of documentation revealing to patrons the policy of the management relative to drug possession, sale or usage. Instead, the only sign on the licensed premises stated that customers should not detain themselves if they were not going to consume. Mr. Acosta denied that Pepito, Isabel or Chino were his employees. Instead, he stated that he employed his wife, his son Papo, other relatives and occasionally people to help him lift things on his licensed premises. He did admit that Alisa was his employee for several weeks. His only policy concerning drugs was to tell his employees that it was illegal and to call "911" if there was a problem. He noted that he had received letters from the Division of Alcoholic Beverages and Tobacco but did not read them because he did not know English. At all times material to this case, Papo, Pepito, Isabel, Chino and Alisa were employees on the licensed premises of La Romanita. They performed the functions and duties of employees in that they served customers, worked behind the counter, waited on tables and used the cash register. The great majority of drug transactions related herein took place in plain view on the licensed premises of La Romanita. The exchanges of drugs and money in conjunction with the open conversations engaged in by employees, patrons and Officer Huguet demonstrated a persistent pattern of open and flagrant drug activity. The instances occurring at La Romanita were sufficiently open to put a reasonably diligent licensee on express notice that drug sales were occurring on the licensed premises.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the alcoholic beverage license held by Respondent, Jose Manuel Acosta, No. 23-03308, series 2-COP, be REVOKED. RECOMMENDED this 4th day of February, 1988, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1988.
The Issue Whether respondent's alcoholic beverage license should be disciplined for alleged multiple violations of the Beverage Law.
Recommendation Based on the foregoing, it is RECOMMENDED: That the respondent's alcoholic beverage license be revoked for multiple violations of the Beverage Law. DONE and ENTERED this 22nd day of June, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1983. COPIES FURNISHED: William A. Hatch, Esquire Howard M. Rasmussen, Department of Business Regulation Director 725 South Bronough Street Division of Alcoholic Tallahassee, Florida 32301 Beverages and Tobacco 725 South Bronough Street Aaron A. Green, Esquire Tallahassee, Florida 32301 410 S.E. 4th Avenue Gainesville, Florida 32602 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Respondent, Giraldo Gonzalez, d/b/a LaGoma Restaurant, held alcoholic beverage license number 23-03475, series 2- COP, for the premises known as LaGoma Restaurant, 9550 N.W. South River Drive, Miami, Dade County, Florida. On May 30, 1986, Petitioner, Division of Alcoholic Beverages and Tobacco (DABT), following a complaint from another agency, began a narcotics investigation at the licensed premises. On that date, DABT Investigators Carlos Baixauli and Hector Garcia, operating under cover, entered the licensed premises and seated themselves at the bar. During the course of their visit they observed the on-duty bartender, Annie, deliver money to a male patron and receive from him a matchbook containing a small plastic packet of white powder. Annie subsequently delivered the matchbook to an unidentified male who was standing outside the front door of the premises. On June 3, 1986, Investigators Baixauli and Garcia returned to the licensed premises and again seated themselves at the bar. Investigator Garcia asked the on-duty bartender, Mindy, if she could get him some "perico" (Spanish slang for cocaine) Mindy subsequently approached Investigator Garcia and, sitting on his lap, pressed a small plastic bag of cocaine into his hand. Garcia paid Mindy $50.00 for the substance. 1/ On June 4, 1986, Investigators Baixauli and Garcia returned to the licensed premises. As they seated themselves at the bar, Investigator Garcia observed two patrons playing the video poker machine and shortly thereafter saw Respondent open the machine, erase the accumulated points, and pay the patrons and unknown quantity of money from the cash register. Later, while seated at the bar, Investigator Garcia engaged the on-duty bartender, Mindy, in conversation. Mindy placed a napkin on the bar in front of Garcia, poured cocaine onto it from a plastic package she had removed from her pocket, and invited Garcia to try some "perico". At that time there were a number of patrons, including a family with small children, seated proximate to Garcia. The investigators went to the bathroom and secured the cocaine in an evidence bag. Upon their return from the bathroom, the investigators heard screaming and arguing near the bar. They observed a male patron approach another male patron, who was carrying a gym bag which he claimed contained a shotgun, and demand that he put the gun away or use it. Respondent attempted to quell the disturbance; however, the patron with the bag swung it against the other patron's head, causing a severe cut and profuse bleeding. As the two patrons wrestled to the floor among broken bottles and glass, Respondent picked up the gym bag and hid it in the kitchen. After the fight broke up, Respondent's employees immediately cleaned up the premises. When the police arrived to investigate the disturbance they found no evidence of the mayhem that had occurred, and were assured by Respondent that only a miner altercation had taken place. Contrary to Respondent's assurances, a real donnybrook had occurred, and the patron struck with the gym bag had suffered severe injuries and was, at that moment, in the hospital. After the police left, another on-duty bartender, Debra (Mindy's sister), approached the investigators while they were seated at the bar and, laughing, began talking about the fight. During the course of their conversation, Debra removed a straw from her shoe and a five dollar bill from her blouse. She unfolded the bill on the bar, revealing a white powdered substance, and snorted a portion of the substance through the straw. Several patrons, together with bartender Mindy, were present at this time. Later that evening, Mindy handed Investigator Garcia a small plastic bag of cocaine, telling him to go try some. The investigators went into the bathroom where they transferred a portion of the cocaine into a plastic bag for evidence and returned the remainder to Mindy." 2/ On June 6, 1986, Investigators Baixauli and Garcia returned to the premises, and assumed their usual seats at the bar. A patron seated next to Investigator Garcia introduced himself as Eduardo and asked Garcia if he wanted to buy some good perico. When Garcia agreed, Eduardo stood, removed a small plastic bag of cocaine from his pocket, laid it on the bar, and received $45.00 from Garcia. Several patrons, together with the on-duty bartender, Maritza, observed the transaction. Later, Investigator Baixauli asked on-duty bartender Debra if she could get him some cocaine. When Debra agreed, Baixauli gave her $50.00 and she walked over to three male patrons. Upon her return, Debra placed a plastic package of cocaine on the bar in front of the investigator. Several patrons smiled at Baixauli after observing the transaction. Following this sale, off- duty waitress Jenny approached Investigator Baixauli and told him she was sure he would like the perico since she was the supplier. Subsequently, Jenny joined a male patron seated down the bar, and the two snorted a white powder off the bar in the presence of numerous patrons. On June 9, 1986, Investigators Baixauli and Garcia returned to the licensed premises. The investigators began speaking with patron Eduardo, regarding the purchase of more cocaine. The investigators left the bar for a short time with Eduardo, but returned before him. When Eduardo entered the premises, he was carrying a large plastic bag containing approximately one ounce of marijuana. Eduardo placed the bag on the bar in front of the investigators, and told them the marijuana was on the house. On-duty bartenders Esperanza and Candy, together with Respondent, were proximate to this transaction. On June 10, 1986, the investigators returned to the premises. During the course of their visit, Investigator Baixauli observed a male patron playing the video poker machine who suddenly exclaimed "I won". Respondent told the patron to "leave it on 600 and I'll pay you". Respondent then paid the patron $150.00 from the cash register. The investigators again returned to the premises on June 12, 1986. As Investigator Garcia spoke with off-duty waitress Jenny, she removed a small change purse from her boot, which she opened to reveal several small packages of white powder. Jenny told Garcia she would sell him some for $50.00, as opposed to $60.00, if he would agree to let on-duty bartender Maritza have some. When Garcia agreed, Jenny and Haritza went to the restroom. Jenny subsequently returned and handed the packet of cocaine to Investigator Garcia. Later, a patron identified as Roger sat next to Investigator Garcia and Jenny, and purchased a packet of cocaine from her. Roger subsequently handed Jenny the packet and told her to let her friends try some. Investigator Garcia went to the restroom, secured a sample of the cocaine for evidence, and returned the remainder to Jenny. On June 16, 1986, the investigators returned to the premises and took their usual seats at the bar; on duty were bartenders Mindy and Debra. Investigator Baixauli observed Respondent standing at the video poker machine watching a patron play. When the patron had achieved a score of 400 points, he told Respondent to "credit me 50 on the machine and give me the rest". Respondent credited the machine 50 points, and paid the patron an unknown amount of money from the cash register. Meanwhile, Eduardo seated himself next to Investigator Garcia and asked if he wanted to buy some good cocaine. Garcia told Eduardo that he was a little short of cash, however, since Mindy volunteered to go halves, Garcia agreed. Garcia gave Mindy $25.00, she borrowed $10.00 from Debra, and gave Eduardo a total of $50.00 in exchange for a plastic packet of cocaine. Mindy held the packet up for Debra to see, whereupon they went to the restroom. Upon their return, Mindy placed the packet of cocaine on the bar in front of Garcia. On June 18, 1986, the investigators returned to the premises, and took their usual seats at the bar. While Garcia was seated next to, and speaking with, off-duty waitress Jenny, Jenny summoned Respondent. While Respondent was present, Garcia asked Jenny if she had a small amount of perico he could have since he was short of cash. At that point, Respondent moved about 3-4 feet away to speak with a patron. Jenny removed a plastic packet of cocaine from her pocket and placed it on the bar. As Garcia reached to pick up the packet, he observed Respondent looking in his direction. As Garcia continued to speak with Jenny, a male patron approached her and asked if she had his "stuff". Jenny handed the man a plastic packet containing a white powder and he paid her an unknown quantity of money. Investigator Garcia subsequently observed the patron snort a portion of the white powder through a rolled up dollar bill while standing in the pool room area. A number of patrons were playing pool or standing in the area during his activity. The investigators returned to the premises on June 20, 1986, and observed Respondent pay off on the video poker machine. Later in the evening, while Respondent was speaking to Sixto Gonzalez, Sixto called Mindy over and handed her a marijuana cigarette. Mindy and her sister Debra went to the service door and smoked the marijuana. On June 23, 1986, the investigators returned to the premises. After assuming their usual seats, Investigator Baixauli asked on-duty bartender Debra if she had any cocaine for sale. Debra replied that she did not, but that she could get some from another on-duty bartender, Esperanza. Baixauli gave Debra $50.00, and she secured a plastic packet of cocaine from Esperanza and delivered it to Baixauli. Several patrons, who were speaking with Esperanza at the time, observed the transaction. On June 27, 1986, the investigators returned to the premises for the last time. Seated in their usual seats, Investigator Baixauli counted out $50.00 in front of on-duty bartender Mindy. Mindy immediately picked up the money and, walking away, announced "it's perico time". Baixauli observed Mindy approach a male known as Flaco and then go the restroom. When she returned to Baixauli, she handed him a plastic packet of cocaine. Baixauli held the packet up in the presence of other patrons, and while Respondent was standing behind the bar. All of the events summarized in the preceding paragraphs took place at the licensed premises during normal business hours and at times when Respondent was present. At no time did Respondent or his employees express any concern about any of the drug transactions. In fact, all of the employees who worked in the bar portion of the licensed premises knew that marijuana and cocaine were being used and sold on the licensed premises, on a regular, frequent, and flagrant basis. Neither Respondent, nor any of his employees, took any action to prevent, discourage, or terminate the sale or use of controlled substances.
Findings Of Fact Respondent is Alice Waldo, holder of Alcoholic Beverage License No. 45- 00293, Series 2-COP, for a licensed premises known as the SILVER DOLLAR CAFE located in Lake County, Florida. On or about February 4, 1989, an investigator employed by Petitioner entered the licensed premises of Respondent. While in Respondent's facility, the investigator observed several patrons smoking a substance, which by its smell and usage, he believed to be marijuana. The investigator then met with a patron, ordered a small quantity of crack cocaine and handed the patron some money for the forthcoming purchase. The patron then asked Respondent to hold the money while he left the premises to retrieve the controlled substance from his automobile. Shortly thereafter, the patron returned with the cocaine. The investigator showed the substance to Respondent's daughter, who had taken her mother's place at the bar. The purpose of displaying the drug to the proprietor, or the proprietor's daughter in this instance, was to later illustrate that Respondent condoned the use and sale of the drug in connection with her licensed premises. A field test by the investigator and a later laboratory test confirmed the identity of the substance purchased as crack cocaine. Petitioner's investigator again entered Respondent's facility on or about February 10, 1989. On this occasion, the investigator purchased a quantity of marijuana from a female patron, then took the substance over to the bar where he proceeded to roll a marijuana cigarette in the presence of Petitioner. At no time did Petitioner inform the investigator that controlled substances were not allowed on the licensed premises. Upon later laboratory analysis, the substance was confirmed to be marijuana. Upon leaving Respondent's facility on February 10, 1989, Petitioner's investigator met an individual within 10 feet of the front door of the premises who sold him a quantity of a substance later determined by laboratory analysis to be crack cocaine. On or about February 24, 1989, Petitioner's investigator entered Respondent's facility. On the front porch of Respondent's facility, the investigator purchased a quantity of a substance later determined by the investigator's field test and a subsequent laboratory analysis to be crack cocaine. After completing the purchase of the substance, the investigator went inside the facility, placed the material on the counter and recounted to Respondent that it had just been purchased on the front porch. Respondent made no reply to the investigator's announcement and, instead, complied with his request for change for a $20 bill. Upon receipt of the change, the investigator wrapped the crack cocaine in a $1 bill in Respondent's presence. On February 28, 1989, Petitioner's investigator again entered Respondent's facility. He approached a black female named "Lilly" and gave her $20 for the purchase of crack cocaine. However, after the lady accepted the $20 and left to retrieve the cocaine, she did not return. The investigator complained to Respondent that "Lilly" had failed to deliver the drug to him. The investigator also told Respondent that the lady could keep the $20 if Respondent would get him some of the drug. At that time, Respondent referred the investigator to a group of three male patrons on the front porch of the facility who appeared to be smoking marijuana. At no time during this incident did Respondent take any steps to prevent the use of any controlled substances on the licensed premises. Subsequently, Petitioner's investigator returned to Respondent's facility on or about March 4, 1989. He purchased a beer and went outside to the front porch of the facility. He observed a number of furtive transactions where currency was passed between certain individuals. He noticed Respondent go to one of the automobiles in the facility parking lot, get into the automobile, engage in conversation with the occupants and shortly thereafter emerge from the automobile. Respondent went back into the facility. The investigator approached a black male and gave him $20 for some crack cocaine. The black male took the investigator's money, then went directly to the automobile where Respondent had been previously. He returned shortly thereafter to the investigator with two pieces of a substance which later tested positive, via field test and laboratory analysis, as cocaine. During another visit to Respondent's facility on or about March 9, 1989, Petitioner's investigator observed a patron rolling what appeared to be marijuana cigarettes in Respondent's presence. While Respondent took no action to prohibit the use or possession of the apparently controlled substance, she did get her coat and leave shortly after the investigator's arrival. On or about March 11, 1989, Petitioner's investigator reentered Respondent's facility. The investigator purchased a small quantity of crack cocaine from a black male on the front porch of the facility. The investigator then took the controlled substance inside the building and displayed it to Respondent, telling her that he had just obtained the drug on the porch. Respondent asked the investigator if he was going to smoke the drug, and he replied yes. Later, a field test and laboratory analysis confirmed the drug to be cocaine. On or about March 17, 1989, Petitioner's investigator visited Respondent's facility. This time the investigator purchased a small quantity of a drug on the front porch of the building which, upon subsequent field test and laboratory analysis, was confirmed to be cocaine. After completing the purchase, the investigator took the substance inside and showed it to Respondent. Later in the evening, the investigator engaged Respondent in conversation on the front porch and related to her that he had observed numerous drug transactions taking place in her facility. Respondent smiled in acknowledgment of the investigator's statement and replied that she certainly hoped he was not a policeman. He told her that he was not a policeman. Respondent took no action to prohibit further use or transactions relating to drugs on the premises.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered revoking Respondent's beverage license bearing number 45-00293, Series 2- COP. DONE AND ENTERED this 13th day of June, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1989 APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-10. Addressed. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: EDWIN R. IVY, ESQUIRE BOX 3223 ORLANDO, FLORIDA 32810 THOMAS A. KLEIN, ESQUIRE DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007 STEPHEN R. MACNAMARA, SECRETARY DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007 LEONARD IVEY, DIRECTOR DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007
Findings Of Fact Based on the stipulations of the parties, the exhibits received in evidence (including Respondent's Exhibit No. 1), and the testimony of the witnesses at the hearing, I make the following findings of fact: Club 99, Inc., is the holder of alcoholic beverage license number 16- 1053-SRX, series 4-COP, doing business at 451 North State Road 7, Plantation, Broward County, Florida, as a bar and restaurant named Shangri-La. On August 7, 1984, the Plantation Police Department began a narcotics investigation at the licensed premises known as Club 99, Inc. d/b/a Shangri-La, holding license number 16-1053-SRX, series 4-COP, located at 451 North State Road 7, Plantation, Broward County, Florida. On this date Detective Dan Anderson entered the licensed premises undercover and was introduced to a white male bartender identified as Malcolm Perkins. Detective Anderson engaged in a conversation with Perkins regarding a narcotic known as MDA. Perkins explained that MDA was a mixture of heroin and speed and further stated that he could obtain MDA for Anderson at a price of $70.00 a gram or $10.00 a "hit." Detective Anderson also engaged in conversation about MDA with Scott Kiehl, the assistant manager at the licensed premises. Later that same evening Detective Anderson engaged in a conversation about cocaine with a white male bartender on the licensed premises known as "Paul" or "Miss Kitty." None of the employees with whom Detective Anderson discussed MDA or cocaine appeared to be alarmed or concerned about the discussion. On August 10, 1984, at approximately 9:30 P.M., Detective Anderson again entered the licensed premises in an undercover capacity and engaged in a conversation with a white male bartender identified as Richard Christian. Detective Anderson asked if he could buy a half gram of cocaine and Richard Christian answered in the affirmative stating that the price would be $35.00 for one half gram. Detective Anderson gave $40.00 in U.S. currency to Christian and Christian covered the money with a cocktail napkin. Christian took the money and shortly thereafter he placed a clear plastic bag containing a white powdery substance under a cocktail napkin and pushed it across the bar towards Detective Anderson. At this same time, Christian said, "It is underneath." After looking under the napkin, Anderson took the cocktail napkin and the small plastic bag and placed them in his left front pants pocket. On August 17, 1984, Detective Anderson returned to the licensed premises at approximately 10:00 P.M. 2/ On this occasion he met with a white male bartender named Malcolm Perkins. Detective Anderson asked if Perkins had obtained any MDA for him and Perkins answered in the negative. Detective Anderson asked if Perkins could get him any cocaine. Perkins answered in the negative but pointed out a waiter named Everett Campbell and suggested that Anderson ask Campbell about cocaine. Detective Anderson then approached the waiter identified as Everett Campbell and asked Campbell if he could get Anderson a half gram of cocaine. Campbell replied in the affirmative and said the price would be $35.00. Anderson agreed to the price. Later that evening Campbell approached Anderson and said that the person he gets the cocaine from was not in the bar and that, therefore, he could not deliver any cocaine to Detective Anderson. On August 18, 1984, at approximately 11:35 P.M., Detective Anderson entered the licensed premises and met with Everett Campbell. This time Campbell told Anderson that he would be able to obtain some cocaine. At approximately 12:05 A.M. on August 19, 1984, Detective Anderson gave Campbell $40.00 in U.S. currency. Campbell took the money and walked to an unknown location off the premises and returned in about five minutes. Campbell then handed Detective Anderson a small plastic bag containing a white powdery substance. Nothing was wrapped around the plastic bag. Detective Anderson held up the plastic bag to inspect it before putting it in his pocket. The other bartenders and a large number of patrons were nearby and could have seen what was happening. On August 21, 1984, at approximately 11:00 P.M., Detective Anderson entered the licensed premises. Anderson struck up a conversation with a white male patron identified as Dion Burl. Detective Anderson asked Burl if he could obtain some cocaine for Anderson. Burl replied in the affirmative and stated that it would cost $40.00 for one half gram. Anderson placed a cocktail napkin over two $20.00 bills and handed them to Burl. Burl took the money and walked to an unknown location. At approximately 11:30 P.M., Burl returned. He handed Detective Anderson a white cocktail napkin and a small clear plastic bag that contained a white powdery substance. Detective Anderson took the substance and placed it in his pants pocket. On August 23, 1984, Detective Anderson returned to the licensed premises and met with Everett Campbell at approximately 11:00 P.M. Campbell was working as a waiter that night. Detective Anderson asked Campbell if he could obtain a half gram of cocaine for Anderson. Campbell answered in the affirmative and said it would cost $40.00. Detective Anderson gave Campbell the money and a while later Campbell handed him a magazine titled "David" and said, "It's inside." Inside the magazine Detective Anderson found a small clear plastic bags containing a white powdery substance. Detective Anderson held the plastic bag up to inspect it before putting it in his pocket. On August 24, 1984, at approximately 9:30 P.M., Detective Anderson entered the licensed premises again. At approximately the same time Investigator Oliva entered in an undercover capacity as back up. Upon entering the premises Detective Anderson met with white male bartender Richard Christian and both engaged in general conversation. After a short period of time Detective Anderson asked Christian if he had any cocaine. Christian stated that be did not have any right now but for Anderson to go ahead and give Christian $35.00, and that he would have it later. Anderson complied with Christian's request and gave Christian $35.00 U.S. currency. At approximately 11:00 P.M., Detective Anderson and Investigator Oliva seated themselves at a table in the dining area of the licensed premises, where they were greeted by Everett Campbell. Shortly thereafter Anderson asked Campbell if he could get Anderson some cocaine. Campbell replied in the affirmative. Thereupon Anderson folded two $20.00 bills, placed them under a napkin, and gave them to Campbell. Detective Anderson and Investigator Oliva then saw Campbell go into the kitchen area several times. About fifteen or twenty minutes later, Campbell approached the table where Anderson and Oliva were seated and placed a folded cocktail napkin in front of Detective Anderson and said, "It's in there." Anderson unfolded the napkin and found that it contained a small clear plastic bag containing a white powdery substance. Anderson removed the plastic bag from the napkin and inspected the plastic bag by holding it up to eye level for a few seconds. Detective Anderson saw other patrons looking at him when he raised the plastic bag to eve level. After inspecting the plastic bag, Anderson put it in his pocket. At approximately midnight of the evening of August 24-25, 1984, Detective Anderson and Investigator Oliva left the restaurant portion of the licensed premises and proceeded to the upstairs portion of the licensed premises, which is another lounge. After a short period of time, Anderson and Oliva were greeted by a waiter identified as Adam Burnett. Anderson and Oliva negotiated with Burnett for the purchase of cocaine. In approximately five minutes Burnett returned to the table where the officers were seated and stated that he could obtain a better quality of cocaine for $40.00 in U.S. currency for one half gram. At this time Investigator Oliva stated that he would take the better quality of cocaine and gave Burnett $40.00 in U.S. currency. A few minutes later Investigator Oliva followed Burnett into the mens' restroom. Once inside the mens' room, Burnett handed Oliva a white cocktail napkin. Oliva took the napkin and unwrapped it. Inside was a small clear plastic bag containing a white powdery substance. Oliva held the plastic bag up to eye level to view its contents and discussed with Burnett the fact that the white powdery substance had a lot of "rocks" in it. Oliva then stated to Burnett that he was not going to do the cocaine in the bathroom because he did not trust anyone. Burnett's reply was, "It's okay. Everyone does it in here anyway." Oliva and Burnett then left the restroom. A few minutes later that same evening, an unknown white male employee who had been previously working at a bar located in the downstairs portion of the premises approached Detective Anderson and Investigator Oliva and stated to Anderson, "Richard wants to see you downstairs". Anderson and Oliva proceeded downstairs to the bar located by the kitchen entrance. There Detective Anderson met with bartender Richard Christian, who told Anderson to reach into his shirt pocket. Anderson reached in Christian's shirt pocket and pulled out a folded napkin, and a small clear plastic bag which contained a white powdery substance. When Detective Anderson started to open the cocktail napkin, Christian put his hands out to close Anderson's hands in an effort to keep other people from seeing the bag. On August 29, 1984, Detective Anderson again entered the licensed premises. At approximately 10:00 P.M., Detective Anderson was introduced to a white male waiter identified as Tony Brown. Anderson and Brown engaged in general conversation and after a short period of time Anderson asked Brown if he could get a half gram of cocaine. Brown stated that be should be able to obtain one and that he would check around and get back to Detective Anderson. At approximately 11:00 P.M., Brown approached Detective Anderson and stated that he had checked around, but was unable to obtain any cocaine. On the same date, at approximately 11:30 P.M., Detective Anderson met with waiter Adam Burnett and engaged in general conversation and after a short period of time Anderson asked Burnett if Burnett could get him a half gram of cocaine. Burnett replied by stating, "Wait 'til Gus gets here." Burnett further stated that the price would be $35.00 for one half gram. At approximately 12:10 A.M., on August 30, 1984, Anderson handed Burnett two $20.00 bills. About twenty minutes later, Burnett handed Anderson a folded napkin. Anderson unfolded the napkin and found a clear plastic bag containing a white powdery substance. Anderson then placed the clear plastic bag in his left front pocket. On the evening of August 30, 1984, Detective Anderson entered the licensed premises again. Investigator Oliva and Detective Vadnal entered the premises at about the same time in an undercover capacity as back up. Detective Anderson met with a white male patron previously identified as Dion Burl. Anderson asked Burl if he could get Anderson a half gram of cocaine. Burl replied in the affirmative. Detective Anderson then handed Burl two folded $20.00 bills, which were wrapped in a cocktail napkin. Burl took the money and left. At approximately 11:50 P.M., Burl returned to the upstairs portion of the premises and sat at a table with Detective Anderson. At this time Burl handed Anderson a folded cocktail napkin and inside the folded napkin was a small clear plastic bag containing a white powdery substance. On that same evening, August 30, 1984, Detective Anderson met with a white male waiter identified as Tony Brown who was working at the upstairs portion of the licensed premises. Anderson and Brown engaged in a conversation while standing approximately three feet from Investigator Oliva. Anderson asked Brown if Brown could obtain a half gram of cocaine. Brown replied by stating, "It will be about twenty minutes." Detective Anderson gave two $20.00 bills to Brown and told Brown that he would be in the downstairs portion of the licensed premises. At approximately 12:10 A.M, on August 31, 1984, Detective Anderson, while standing at the downstairs portion of the licensed premises was approached by Brown, who handed Anderson a folded white cocktail napkin which contained a clear plastic bag containing a white powdery substance. Anderson inspected the plastic bag and then placed the napkin and its contents in his right rear pants pocket. On or about August 31, 1984, at approximately 11:30 P.M., Detective Anderson again entered the licensed premises. At about the same time Detective Vadnal and Investigator Oliva entered the licensed premises in an undercover capacity as backup. Shortly after midnight (in the early morning minutes of September 1, 1984) Detective Anderson met with white male waiter Adam Burnett and engaged in a general conversation. Detective Anderson asked Burnett if Burnett could get Anderson a half gram of cocaine. Burnett replied in the affirmative. Thereupon Detective Anderson gave Burnett $40.00 in U.S. currency by laying two $20.00 bills on a cocktail tray Burnett was carrying. Burnett walked away from Detective Anderson to an unknown portion of the licensed premises. A few minutes later Burnett returned to where Detective Anderson was standing and handed Anderson a magazine titled "David" and said, "It's in the magazine." Detective Anderson, who was standing near the dance floor of the licensed premises, took the magazine and flipped through its pages, at which time a clear plastic bag containing a white powdery substance fell to the floor. Several patrons standing in the vicinity of Anderson saw the clear plastic bag fall to the floor and laughed at Anderson's clumsiness. Detective Anderson then picked up the clear plastic bag and held it up to eye level to inspect it. He then placed it in his pocket. On the evening of September 5, 1984, Detective Anderson again entered the licensed premises. Shortly thereafter Detective Vadnal and Investigator Oliva entered the licensed premises in an undercover capacity as back up. Detective Anderson met with a white male patron previously identified as Dion Burl and asked Burl if he could purchase a half gram of cocaine. After some conversation, Anderson gave two $20.00 bills to Burl. Detective Anderson then told Burl that he would be sitting on a speaker near the west end of the dance floor and that Burl could deliver the cocaine to him there. At approximately 10:45 P.M., Burl approached Detective Anderson, who was seated on a speaker by the dance floor, and sat next to Anderson. Burl then handed a folded cocktail napkin to Detective Anderson. Inside the cocktail napkin was a small clear plastic bag containing a white powdery substance. Detective Anderson examined the plastic bag and then placed it in his pocket. After concluding the cocaine purchase of September 5, 1984, at the licensed premises, Detective Anderson remained on the licensed premises and during the early morning hours of September 6, 1984, he met with a white male waiter previously identified as Adam Burnett. Detective Anderson asked Burnett if he could get Anderson a half gram of cocaine. Burnett stated that "Gus," referring to the supplier, was not yet at the bar, but that he should be able to obtain some later. A few minutes later, Burnett approached Anderson and stated that Gus was present and Anderson handed Burnett two folded $20.00 bills in U.S. currency. Anderson then stated to Burnett that he would be in the downstairs portion of the premises. A short while later Burnett approached Anderson and handed Anderson what appeared to be a mixed drink with a napkin wrapped around the glass. As he handed the glass to Anderson, Burnett said, "It's just water, but look in the napkin." Anderson set the drink down and unfolded the napkin to expose a small clear plastic bag containing a white powdery substance. Detective Anderson placed the plastic bag in his pocket. At approximately 12:30 A.M. that same evening (prior to purchasing the cocaine from Burnett), Detective Anderson met with a white male waiter previously identified as Everett Campbell and engaged in a general conversation with Campbell. Shortly thereafter Detective Anderson asked Campbell if he could get Anderson a half gram of cocaine. Anderson gave Campbell two folded $20.00 bills in U.S. currency. Approximately two minutes later Campbell returned from an unknown location in the restaurant area of the licensed premises and handed Anderson a small clear plastic bag containing a white powdery substance. Anderson took the plastic bag and held it up to inspect it. The bartender at bar number two could have seen Anderson inspecting the plastic bag. Anderson then placed the plastic bag in his pocket. On the evening of September 10, 1984, Detectives Anderson and Vadnal and Investigator Oliva returned to the licensed premises in an undercover capacity. Anderson engaged in a brief conversation with a white male waiter previously identified as Everett Campbell, who was not working on this date. Anderson asked Campbell if he could get Anderson a half gram of cocaine. Campbell replied in the affirmative. Detective Anderson then handed Campbell a $50.00 bill, which Campbell took. Campbell took the $50.00 bill to a bartender, received change for it, and gave Anderson $10.00. Campbell then went out the front door. At approximately 1:00 A.M. on September 11, 1984, Campbell reentered the licensed premises and met with Detective Anderson who was standing next to Investigator Oliva. At this time Campbell handed Anderson a clear plastic bag containing a white powdery substance. This transaction was observed by an on-duty white male bartender identified only as "Don" and by a white male patron who was standing on the opposite side of Anderson. Detective Anderson took the clear plastic bag and placed it on the bar counter where it remained for two or three minutes in plain view of the bartender. Then Anderson took the plastic bag and attempted to place it in his pants pocket at which time the small plastic bag containing the white powdery substance fell to the floor where Detective Vadnal, Investigator Oliva, and the white male patron previously mentioned observed the same. Detective Anderson retrieved the clear plastic bag from the floor and placed it in his pants pocket. At all times material to this case, the following were employees on the licensed premises. Malcolm Perkins, Richard Christian, Everett Campbell, Adam Burnett, Tony Brown and a bartender identified only as "Don." Each and every one of the clear plastic bags containing a white powdery substance which were sold to Detective Anderson and to Investigator Oliva on the licensed premises during August and September of 1984, were properly examined by a forensic chemist. The contents of each and every one of those clear plastic bags was found to contain cocaine. In brief summary of the foregoing, during the 5-week period from August 7, 1984, through September 11, 1984, the following events occurred on the licensed premises: 8/07/84 Employee Malcolm Perkins told Detective Anderson he could obtain MDA. 8/07/84 Assistant Manager Scott Kiehl and employee "Paul/Miss Kitty" discussed drugs with Detective Anderson without alarm or concern. 8/10/84 Employee Richard Christian sold cocaine to Detective Anderson. 8/17/84 Employee Malcolm Perkins told Detective Anderson that employee Everett Campbell could obtain cocaine for Anderson. 8/17/84 Employee Everett Campbell agreed to sell cocaine to Detective Anderson. 8/19/84 Employee Everett Campbell sold cocaine to Detective Anderson. 8/21/84 Patron Dion Burl sold cocaine to Detective Anderson. 8/23/84 Employee Everett Campbell sold cocaine to Detective Anderson. 8/24/84 Employee Everett Campbell sold cocaine to Detective Anderson. 8/25/84 Employee Richard Christian sold cocaine to Detective Anderson. 8/25/84 Employee Adam Burnett sold cocaine to Investigator Oliva. 8/29/84 Employee Tony Brown offered to sell cocaine to Detective Anderson. 8/30/84 Employee Adam Burnett sold cocaine to Detective Anderson. 8/30/84 Patron Dion Burl sold cocaine to Detective Anderson. 8/31/84 Employee Tony Brown sold cocaine to Detective Anderson. 9/01/84 Employee Adam Burnett sold cocaine to Detective Anderson. 9/05/84 Patron Dion Burl sold cocaine to Detective Anderson. 9/06/84 Employee Adam Burnett sold cocaine to Detective Anderson. 9/06/84 Employee Everett Campbell sold cocaine to Detective Anderson. 9/11/84 Employee Everett Campbell sold cocaine to Detective Anderson. All of the events summarized immediately above took place on the licensed premises during business hours when other employees and patrons were also present on the licensed premises. With the one exception which occurred on August 25, 1984, when Richard Christian reached out to close Detective Anderson's hands so that Anderson would not display a plastic bag containing cocaine, the employees at the licensed premises did not express any concern about any of the drug transactions and did not take any action to prevent or discourage them. Richard DeSanto is the sole officer, director, and shareholder of Club 99, Inc., the licensee in this case. Richard DeSanto is a self-employed attorney in good standing with the Florida Bar. He has been a practicing attorney for six years and maintains an active trial practice. DeSanto does not devote very much time to the management of the licensed premises. The day-to-day management is conducted by a manager and an assistant manager, both hired by DeSanto. The manager is Tommy Engelbrecht and the assistant manager is Scotty Kiehl. DeSanto relies on Engelbrecht to relay DeSanto's instructions about the operation of the licensed premises to the other employees and also relies on Engelbrecht to report back to him regarding any problems in the operation of the licensed premises. Engelbrecht does the hiring and firing at the licensed premises and many of the employees on the licensed premises would not even recognize DeSanto. DeSanto visits the licensed premises about twice a month on a deliberately irregular schedule. Some of his visits are as brief as a few minutes; others are as long as several hours. The primary purpose of his visits is to attend to such things as reviewing business records and signing the payroll. DeSanto has established as policies that intoxicated or disorderly patrons should not be permitted to enter the licensed premises and that patrons who become disorderly once they are inside the licensed premises should be ejected. It is also a policy of the club that if the employees become aware of any drug activity on the licensed premises they are supposed to report the incident to the manager or assistant manager, and the manager or assistant manager is supposed to eject whoever is involved in the drug activity. On three or four occasions during the past year or so patrons have been ejected for drug activities on the licensed premises. DeSanto has discussed drug problems and their prevention with Engelbrecht. All new employees are told about the drug policy at the licensed premises when they are first hired. Engelbrecht has also held a few employee meetings at which he reminded employees of the drug policy. The drug policy established by DeSanto appears to include a policy of firing any employee who is caught with drugs on the premises. During the past year three waiters have been fired on the spot for drug use. In the past year the manager has also been told of three or four instances of drug dealing on the licensed premises. 3/ There are no written personnel rules and regulations. Thus, all of DeSanto's policies are communicated orally to Engelbrecht and are then communicated orally by Engelbrecht to the employees. The entire management of the licensed premises, including management practices concerning hiring of personnel, appear to be very informal. Further, the personnel policies regarding drug activities on the licensed premises are either ineffectively communicated or ineffectively enforced. For example, none of the drug transactions engaged in by Detective Anderson and Investigator Oliva were reported to the manager or assistant manager, and no efforts were made to eject Anderson or Oliva for engaging in drug transactions or attempting to engage in drug transactions, even though some of their transactions were observed by employees who were not involved in the transactions. Further, at least one employee (Richard Christian) knew that a patron named Gus was regularly dealing in cocaine on the licensed premises, but no action was taken to eject Gus. 4/ Yet another example of the informality of the licensee's personnel practices is that even though Englebrecht had recently hired a bartender named "Don" and had supposedly carefully checked with Don's references, Englebrecht could not remember Don's last name. When alcoholic beverage licenses were renewed in March of 1983, the DABT sent information to all licensees advising them that the DABT was willing to provide them with suggestions for controlling drug activity on the licensed premises. DeSanto did not take advantage of this opportunity to obtain suggestions from DABT because he did not think he had a drug problem on the licensed premises. In making the foregoing findings of fact I have given careful consideration to the proposed findings of fact contained in the parties' post- hearing submissions to the Hearing Officer. To the extent that findings of fact proposed by either party are not incorporated in the foregoing findings of fact, the proposed findings have been specifically rejected because they were not supported by competent substantial evidence, because they were contrary to the greater weight of the evidence, because they involve incidental details which were not essential to the resolution of this case, or because they were irrelevant or immaterial.
Recommendation For all of the foregoing reasons it is recommended that the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking alcoholic beverage license number 16-1053-SRX, Series 4-COP, issued to Club 99, Inc., trading as Shangri-La. DONE and ORDERED this 8th day of October, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1984.
