The Issue The issue is whether respondent's alcoholic beverage license should be disciplined for the reasons stated in the notice to show cause.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Dave Fulcher, held alcoholic beverage license number 46-00378, Series 2-COP, issued by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent used the license to sell beer and wine (for on-premises consumption only) at a small establishment known as Club 82 located at 3250 Anderson Avenue (recently renamed Dr. Martin Luther King, Jr. Boulevard) Fort Myers, Florida. As a part of an ongoing narcotics investigation, a Division investigator, Raylius Thompson, visited respondent's establishment on sixteen separate occasions in January and February 1991 to determine whether illegal narcotics were being sold and used on the licensed premises. As a result of that investigation, the Division issued a notice to show cause and emergency order of suspension on February 14, 1991. That agency action prompted respondent to request a hearing. Respondent's license has remained suspended during the course of this proceeding. The club consists of a single room approximately 35' x 45' in size. Besides a small counter bar on one side of the room, there are booths located on both side walls and tables scattered in between. The lounge has a raised floor extending from the back wall with a dance area immediately in front of the stage area. Agent Thompson found the premises to be "moderately" lighted during each of his visits and this was not disputed. Because of the compactness of the establishment, and the nature of the lighting, a customer seated at the bar counter could easily observe all activities in the lounge. At the outset of the hearing respondent stipulated that all suspected drugs purchased by agent Thompson were in fact cocaine and that the laboratory reports confirming that fact could be received in evidence without the necessity of the Division producing the laboratory technician who conducted such tests. There was also no dispute over the chain of custody of the drugs between the time agent Thompson purchased them and the time they were tested by the laboratory. On January 4, 1991, agent Thompson entered the licensed premises around 6:30 p.m. and took a seat at the bar. A black male named Ernest Taylor, also known as Musso, was the bartender on duty. A few minutes later, a white female entered the premises and asked Musso for some controlled substances. The bartender reached behind the counter, retrieved several rock type substances appearing to be rock cocaine (crack or rocks), placed them in a white cup and gave them to the female. The substance was exchanged for U.S. currency. Thompson then asked Musso the cost of the rocks and was quoted a price of $10.00 per piece. Thompson told Musso he was leaving the premises for a few minutes, gave Musso $20.00 in U.S. currency, and requested that Musso save two rocks for him. When Thompson returned a few minutes later, the bartender gave Thompson a napkin containing two pieces of rock cocaine. On January 5, 1991, Thompson returned to the licensed premises at approximately 7:40 p.m. He observed a black male known as James Taylor, a/k/a "Rabbit", who Musso said was his brother, selling what appeared to be crack cocaine to patrons. Thompson observed a white female speak to Rabbit who then retrieved a bag from behind a speaker located on the northern wall. After removing a small item from the bag, Rabbit exchanged the item with the female for U.S. currency. That same evening, Thompson asked bartender Musso for one piece of crack cocaine. Musso retrieved a plastic container from his pocket and exchanged one piece of rock cocaine for $10.00 of U.S. currency. Later on that evening, Thompson observed a black female named "Freida" selling what appeared to be cocaine at the door. Thompson approached the female, asked to purchase some crack, and gave her $10.00 of U.S. currency for one piece of crack cocaine. The exchange occurred in an open manner and was visible to other persons in the lounge. At 12:01 a.m. on January 6, 1991, Thompson returned to the licensed premises where he observed several patrons and bartender Musso selling suspected controlled substances. Also present in the lounge was Rabbit. Thompson asked Rabbit about purchasing crack cocaine. Rabbit called over another patron who removed a zip lock baggie from his pocket. The unidentified patron removed one piece of crack cocaine from the bag and exchanged it with agent Thompson for $10.00 of U.S. currency. The transaction occurred in an open manner. On the evening of January 6, 1991, Thompson returned to the licensed premises and asked bartender Musso for two rocks. Musso retrieved a baggie from his pocket, removed two pieces of crack cocaine, wrapped them in a white napkin, and gave them to Thompson in exchange for $20.00 of U.S. currency. On January 7, 1991, Thompson returned to the licensed premises at approximately 7:55 p.m. An hour later, Thompson asked bartender Musso for one rock. Musso obtained the rock cocaine from behind the bar, placed it in a napkin and gave it to Thompson in exchange for $10.00 of U.S. currency. On January 11, 1991, Thompson returned to the licensed premises around 8:30 p.m. After Thompson asked bartender Musso for two rocks, Musso retrieved two rocks from his pocket and exchanged them for $20.00 of U.S. currency. Around 8:00 p.m. on January 22, 1991, Thompson again visited the licensed premises. After taking a seat at the bar, Thompson asked bartender Musso for one piece of rock cocaine. Musso replied that he did not have any, but directed another black male seated at the bar to sell Thompson some drugs. The black male, later identified as "Eddie", removed two pieces of rock cocaine from his pocket and gave one to Thompson in exchange for $10.00 of U.S. currency. Thompson showed the purchased cocaine to Musso and complained the rock was too small. Musso advised Thompson not to worry, that he would have more cocaine for Thompson the next day. On January 23, 1991, Thompson entered the licensed premises at approximately 8:55 p.m. Bartender Musso walked over to Thompson and stated, "I got some tonight." He then removed a plastic baggie from his pocket containing a number of pieces of suspected controlled substances. Thereafter, Thompson purchased two pieces of rock cocaine in exchange for $20.00 of U.S. currency. On January 24, 1991, Thompson returned to the licensed premises and spoke with bartender Musso, who inquired as to the number of pieces of rock cocaine Thompson wished to purchase. Thompson asked for two and was given two pieces of rock cocaine in exchange for $10.00 of U.S. currency. At approximately 7:45 p.m. on January 26, 1991, Thompson entered the licensed premises and was approached by bartender Musso who asked him how much cocaine he wanted to purchase. Thompson then exchanged $10.00 of U.S. currency for one and a half pieces of rock cocaine. The cocaine was retrieved by Musso from a shelf behind the bar. On February 1, 1991, Thompson entered the licensed premises and spoke with Rabbit, who was carrying a baggie of rock cocaine in his hand. When Rabbit asked Thompson what he wanted, Thompson replied that he wanted two pieces. Thompson then exchanged $20.00 of U.S. currency for two pieces of rock cocaine. Later on that evening, Thompson observed Rabbit smoking suspected marijuana and observed another patron cutting a white powdery substance, consistent in appearance with cocaine, on top of the bar counter. On February 2, 1991, Thompson entered the licensed premises and purchased one piece of rock cocaine for $10.00 of U.S. currency from Rabbit who retrieved the rock cocaine from behind a wall partition. Thompson also observed other individuals selling suspected controlled substances on the licensed premises. When bartender Musso learned that Thompson had purchased cocaine from his brother, he cautioned Thompson that the agent should purchase crack from him (Musso), and not his brother. On February 4, 1991, Thompson returned to the licensed premises where he purchased two pieces of rock cocaine from bartender Musso for $20.00 of U.S. currency. Musso retrieved the rock cocaine from behind the bar. During the course of the evening, Thompson also observed other individuals retrieve what appeared to be rock cocaine from behind the speakers on the walls. On February 6, 1991, Thompson entered the licensed premises and observed an individual named "Wayne" on duty as the bartender. Musso, who was a patron that evening, approached Thompson and sold him three pieces of rock cocaine for $30.00 of U.S. currency. The exchange between Musso and Thompson occurred in plain view of the bartender. On February 11, 1991, while inside the licensed premises at approximately 10:00 p.m., Thompson observed several individuals smoking what appeared to be marijuana. Thompson also purchased from bartender Musso two pieces of rock cocaine for $20.00 of U.S. currency. Agent Thompson returned to the premises for a final visit on February 14, 1991. During that visit he met with bartender Musso at the bar counter and purchased two and one-half pieces of rock cocaine for $20.00 U.S. currency. On February 15, 1991, Division investigators secured a search warrant and executed a raid on the licensed premises. During the course of that search, the agents seized numerous pieces of rock cocaine, a number of aluminum foil packets of cocaine in a powdery form, and marijuana butts. Respondent has owned and operated Club 82 since December 1979. Fulcher described the bar as catering to extremely rough and dangerous individuals who were difficult to control. Although he has tried to stop the use of drugs, Fulcher said he was unable to get customers to obey him unless he had a gun or called law enforcement officers. He also stated that if law enforcement officers were called, he feared for his safety once the law enforcement officers had departed. Fulcher generally did not go on the premises except to open up the bar in the early evening and to lock it up around midnight. He claims he was "totally surprised" by the drug sales that occurred during Thompson's investigation. However, he did not deny that they took place and admitted that while cleaning up the premises, he would sometimes find aluminum foil packets and marijuana butts. He conceded that Musso had a key to the premises and had actively managed the business for the last year or so. Except for a small sign by the front door advising that drugs were prohibited, there was no evidence that respondent actively took steps to prevent such illicit activity or adequately supervised his employees to insure that state drug and beverage laws were obeyed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 561.29(1)(c), Florida Statutes (1989) and that his license number 46-00378 be revoked. DONE and ENTERED this 11th day of March, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER 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 11th day of March, 1991. APPENDIX for Case No. 91-1110 Petitioner: Proposed findings 1-17 and 19-25 have been substantially adopted in this Recommended Order. Proposed finding 18 has been rejected as being irrelevant since the transaction did not occur on the licensed premises. Proposed finding 26 was deemed to be unnecessary. COPIES FURNISHED: Nancy C. Waller, Esquire 725 South Bronough Street Tallahassee, FL 32399-1007 Mr. Dave Fulcher 2802 Price Street Fort Myers, FL 33916 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, FL 32399-1000
Findings Of Fact Respondent, Everett R. Rogers d/b/a Circus Bar (Respondent), has been licensed by Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), to sell alcoholic beverages under License No. 39- 602, Series 2-COP, for licensed premises located at 1118 West Kennedy Boulevard, Tampa, Florida, at all times pertinent to this case. Respondent's most recent license expired by its terms on September 30, 1985. Respondent voluntarily closed the business operated under his license on or about February 2, 1985. On or about February 2, 1985, Respondent initiated personal bankruptcy proceedings which encompassed the business which he was operating at the licensed premises. The licensed premises and Respondent's license have been turned over to Respondent's trustee in bankruptcy. On February 2, 1984, three marijuana cigarettes were possessed, sold and delivered at the licensed premises with the knowledge of Respondent's bartender, Bobby Warner.2 On February 3, 1984, the licensed premises were visited by a person named Melvin Stusse and undercover police officer Paul Miller for the purpose of the sale of cocaine, although no sale took place. On February 3, 1984, three grams of marijuana were possessed, sold and delivered at the licensed premises. On February 3, 1984, undercover police officer Thomas Kinsella possessed marijuana on the licensed premises with the knowledge of bartender Warner. Kinsella asked Warner for something in which to place a baggie of marijuana, and Warner took Kinsella to the stockroom to give him a paper clip box for that purpose. On February 6, 1984, bartender Warner and patrons of the licensed premises gambled on the pool table in the licensed premises. On February 8, 1984, the sale of eight marijuana cigarettes was negotiated at the bar in the licensed premises but the delivery took place outside the premises and there was no evidence that the marijuana was possessed in the licensed premises. On February 9, 1984, three marijuana cigarettes were sold, delivered and possessed at the licensed premises with the knowledge of Respondent's manager, Joan Sammons. On February 13, 1984, the sale of approximately two and one-half grams of marijuana was negotiated at the licensed premises with the knowledge of bartender Warner. The marijuana was delivered outside the licensed premises, and there was no evidence that marijuana was possessed on the licensed premises. On February 24, 1984, six marijuana cigarettes were sold, possessed and delivered on the licensed premises with the knowledge of manager Sammons. On February 28, 1984, approximately two and one-half grams of marijuana were sold, possessed and delivered on the licensed premises with the knowledge of bartender Warner. On March 5, 1984, bartender Warner possessed, sold and delivered five marijuana cigarettes on the licensed premises. On March 6, 1984, manager Sammons sold, possessed and delivered approximately two grams of marijuana on the licensed premises. On March 7, 1984, manager Sammons purchased $50.00 worth of USDA food stamp coupons for $25.00 on the licensed premises. On March 19, 1984, manager Sammons purchased $150.00 worth of USDA food stamp coupons for $75.00 on the licensed premises. Also on March 19, 1984, four marijuana cigarettes were possessed, sold and delivered on the licensed premises with the knowledge of manager Sammons. On March 21, 1984, approximately 1.2 grams of marijuana were possessed, sold and delivered on the licensed premises. It was not proved that any of Respondent's employees were aware of this transaction. On March 30, 1984, Respondent's bartender, Steve Keller, possessed, sold and delivered approximately three and one-half grams of marijuana on the licensed premises. Manager Sammons also knew about this transaction. Respondent had a policy against illegal drug activity and gambling on the licensed premises. He enforced the policy when he was on the licensed premises. Respondent posted signs prohibiting gambling and told employees that they should evict patrons suspected of illegal drug activities or gambling. But Respondent did little or nothing to ensure that his policies were followed evenings and weekends when he was not present at the licensed premises. Respondent performed no background checks on his employees and continued to employ Sammons as his manager although he knew she had been arrested. Respondent had no written employment application or written instructions for his employees. Respondent did not polygraph his employees.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking alcoholic beverage license number 39-602, Series 2-COP, held by Respondent, Everett R. Rogers d/b/a Circus Bar, 1118 W. Kennedy Blvd., Tampa, Florida. RECOMMENDED this 19th day of December, 1985, in Tallahassee, Florida. L LAWRENCE JOHNSTON 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 19th day of December, 1985.
Findings Of Fact Respondent Michael G. Mandeville, d/b/a The Sugar Shack (Mandeville), is licensed under the Beverage Law, license number 27-1311, series 2-COP, for the premises known as The Sugar Shack located at 11 East Fairfield Drive, Pensacola, Escambia County, Florida. Mandeville has operated The Sugar Shack at that location under that license from July 1985 through the emergency suspension of the license and closing of the business on January 16, 1986. Previously, Mandeville was President, Secretary and Treasurer and 100 percent stockholder of Someplace Else Pensacola, Inc., a licensee under the Beverage Law. On February 1, 1984, Someplace Else Pensacola, Inc., entered into a Stipulation with Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), settling a Notice To Show Cause containing eight counts of solicitation of drinks and one count of conspiring to deliver a controlled substance. At the time, the licensee, Someplace Else Pensacola, Inc., was doing business as The Sugar Shack at 720 West Government Street, Pensacola, Florida. Earlier the licensee Someplace Else Pensacola, Inc., was doing business as Someplace Else at Highway 29 and Roberts Road in Pensacola, Florida. Mandeville was its Secretary and Treasurer and owned half of the stock issued by the corporate licensee. On July 29, 1982, the licensee Someplace Else Pensacola, Inc., d/b/a Someplace Else, entered into a Stipulation with the Division settling a Notice To Show Cause containing twelve counts of solicitation of drinks and five counts of delivering a controlled substance. In the short time Mandeville's current license was being operated, he was aware of drug problems on the premises. Problems of this sort in approximately September 1985 caused Mandeville to be in contact with the Escambia County Sheriff's Office, Narcotics Division. In order to help himself, Mandeville agreed to cooperate with the Sheriff's Office. Although Mandeville told officers in the Sheriff's Narcotics Division that he personally knew no drug users on the premises, he would have a part-time employed disk jockey named Darrel Able, who might have information, contact the Narcotics Division. Mandeville and his staff also had to fire several employees on suspicion of drugs, including a dancer named Margie. The Sugar Shack's premises consist of one large major room with a separate room for playing pool, separate dressing rooms, and men and ladies restrooms. The licensed, premises contain two stages for topless dancing performances, a booth for the disk jockeys and a large bar. It is not possible to see into the dressing rooms from the main room, from the bar or from the disk jockey booth. It is not possible to see the room containing the pool tables from the main room, the disk jockey booth, or the bar. Within the licensed premises, there are many tables where customers sit. During business hours of The Sugar Shack, there are topless dancers performing to loud music. Because of the loud music, it is difficult to hear normal conversations even among those sitting at one of the various tables in the licensed premises. Mandeville employs several people to assist him in the operation and maintenance of The Sugar Shack. During most of the business day, Mandeville is present at the licensed premises. When Mandeville is not present, his brother Steve is in charge of the licensed premises. When Steve Mandeville is not present, the assistant manager and doorman Russell Sapp is in the licensed premises and supervises them. When Sapp is not present, John Chiarito, an employed disk jockey, manages the licensed premises and supervises them. For most of the day, two or three of these people are present in the licensed premises and serve in a supervisory capacity. Additionally, Mandeville employs a day bartender named Helen Mabie, who functions in a supervisory capacity. Mandeville also employs other personnel including bartenders and waitresses who are in the licensed premises during business hours and are supposed to inform management of any violations of laws and rules they suspect. Mandeville himself is present at the licensed premises for approximately eight hours a day at various times between 1:30 p.m. and 2:00 a.m. Mandeville generally supervises the overall business operations of The Sugar Shack, including the hiring and firing of employees. Since Mandeville opened the licensed premises, he has announced a policy applicable to all employees prohibiting the possession of drugs in the licensed premises and the solicitation of drinks by employees. Generally, all employees, especially dancers, are required to sign statements agreeing to the policies. Rules implementing the policies are posted prominently in several locations within the licensed premises including the dancers' dressing rooms. However, the signs contain statements like: "there's a time & place for everything, please think before making your move"; "they are watching you know the law, they know you"; and "the law has the right to walk in this dressing room at any given second keep yourself & your friends out of trouble." Although the overall message of the signs and policies prohibit drugs and drink solicitation, the above unfortunately phrased parts of the signs might tend to imply a management attitude that those activities are acceptable as long as no employees are caught doing them. Mandeville has made it known to his employees that violation of the prohibition against drugs would result in termination, supposedly without giving anybody a second chance. Mandeville and his management staff have in fact fired several employees for violation of the prohibition against drugs on the licensed premises: Toni for smoking marijuana in the dressing room; Nicki for possession of prescription drugs not in a bottle; Margie for using and selling cocaine; and Nicole for suspicion of selling cocaine. According to Mandeville, even suspicion of violating the drug prohibition will result in termination, and there is not supposed to be a second chance for anyone. However, Margie was rehired after being terminated for violating the drug prohibition. In addition, Mandeville did not fire Margie a second time before his license was suspended and did not fire another dancer named Nicole until the first week of January 1986 although he suspected both of them of selling cocaine as early as December 19, 1985, when an undercover Escambia County Sheriff's Office narcotics deputy posing as a patron told him that Nicole had sold the deputy cocaine. Mandeville also made it known to his employees that patrons were supposed to be asked to leave the premises if they violated drug laws on the premises. If such a patron refused to leave, either they were to be forced to leave or law enforcement was to be notified. However, Mandeville did not ask the undercover deputy to leave on December 19, 1985, although the undercover deputy told Mandeville that he had bought cocaine from Nicole. Similarly, the same undercover deputy was not asked to leave by an employee named Sophia on December 27, 1985, when the deputy told Sophia that he had bought cocaine from Nicole. Mandeville or his managements staff conducts periodic unannounced searches of the dancers' lockers. These searches are conducted in the dancers' presence. Refusal to permit a locker search is grounds for termination, and two employees, one a dancer named Connie, were fired for refusal to allow a locker search. According to Mandeville, his management staff is supposed to periodically review with the employees the rules prohibiting drugs and drink solicitation. However, Mandeville does not follow up on the performance of his management staff and several understand their obligation to be only to go over the rules with the employees when one of the employees violates the rules. Only Dwight Sparks, the Sunday night manager, goes over the rules each night he works. Violation of the rule against drink solicitation, when detected, is supposed to result in termination. But there was no evidence that any employee has been fired for drink solicitation. Enforcement of this policy is not as strict as enforcement of the policy against drugs on the premises. Mandeville does not require his employees to subject themselves to a polygraph lie detector examination. He asks prospective employees for an oral history of employment but does not get it in writing and does not check the validity or quality of the references. Mandeville does not check for arrest records of his employees. On December 3, 1985, Officer Zeka of the Escambia County Sheriff's Department entered the licensed premises in an undercover capacity posing as a patron. Within minutes of entering the premises, Zeka was able to buy five capsules of cocaine from the employed dancer Nicole. Nicole and Zeka were sitting back to back in adjoining booths when the transaction took place. Nicole reached over the waist high back of the booths and placed the capsules on Zeka's table in exchange for $50. Because of the loud music, dark lighting, relatively cluttered table and the topless dancing performances attracting attention elsewhere, the transaction would have been difficult for anyone to detect who was not paying attention and trying to detect a drug transaction even though the transaction was not completely concealed. Zeka quickly counted the capsules and put them in his pocket. On December 4, 1985, Zeka bought from Nicole another three capsules of cocaine in a clear cellophane cigarette package wrapper for $50. The circumstances of the transaction were essentially the same as on December 3. Later on December 4, 1985, Zeka bought from Nicole another five capsules of cocaine for $50. The circumstances of this transaction also were the same as on December 3. As on December 3, Nicole placed the capsules on the table in front of Zeka who counted them and put them in his pocket. On December 5, 1985, Zeka again bought from Nicole five capsules of cocaine. Again, the circumstances were essentially the same as on December 3. As on December 3, Nicole placed the capsules on the table in front of Zeka who counted them and put them in his pocket. On December 26, 1985, Zeka was in the licensed premises and asked employed dancer Margie to sell him some cocaine. At first Margie was unable to because "her man," i.e., her source of drugs, was not around. Later she walked over to and embraced "her man," Darrel Able, who slipped a clear plastic bag containing approximately one-half gram of cocaine into the back of her g-string type panties. Margie returned to the table and put the bag on the table between Zeka and another undercover officer named Lewis. Somehow the bag opened, and some cocaine spilled on the table. Margie suggested they "do a line" from the cocaine spilled on the table and took a straw out of one of the glasses on the table. When Zeka and Lewis affected to warn her not to be so open about it in order to preserve their cover, Margie told them not to worry because it was done all the time. However, it was not proved that Margie was not either joking or intoxicated, and no credence can be given to her statement that cocaine was used at the tables in the licensed premises. As before, the licensed premises were dark and noisy at the time and the attention was directed to the dance stage. Although the transaction was not completely concealed it still would not have been easy to detect. On December 27, 1985, an employed dancer named June openly handed Lewis a marijuana cigarette she said she had been given as a tip and invited Lewis to smoke it outside. Again, although June made no attempt to conceal what she was doing, it would have been difficult to detect exactly what she was doing and that she had a marijuana cigarette. Also on December 27, 1985, Zeka asked employed dancer Nicole to sell him some more cocaine. Nicole had none and had to leave the licensed premises to obtain some. She put on her street clothes, left, returned and handed Zeka four capsules of cocaine in a concealed manner. On December 31, 1985, a man named John Carroll sold cocaine to Zeka's confidential informant twice within 20 minutes. Both times the confidential informant walked over to Carroll, who was standing by the bar. The first time Mandeville himself was seated five bar stools away from Carroll. Both times the confidential informant persuaded Carroll to sell the cocaine, reached into his front shirt pocket to get the cocaine and returned to Zeka who was approximately 15 feet away. In a concealed manner, the cocaine was handed to Zeka, who held the clear plastic bag containing the cocaine up by the corner, looked at it and placed it in his pocket. Again, although Mandeville was in a position to see the first transaction if he had been paying attention and watching for it, the evidence did not prove that he actually saw the transaction. It was not proved that Carroll was an employee, as opposed to a patron, of Mandeville. On January 13, 1985, Lewis bought a half gram of cocaine from employed dancer Margie for $50. Margie delivered the cocaine in a concealed manner that would have avoided any detection. In addition to the activity involving controlled substances described above, Mandeville's employees on numerous occasions solicited drinks from Lewis as follows: Sophia December 19, 1985 Liz December 19, 1985 Angela December 19, 1985 Debbie December 19, 1985 Candy December 30, 1985 Judy December 30, 1985 Chastity December 30, 1985 Candy December 30, 1985 Margie December 26, 1985 June December 27, 1985 Cindy December 27, 1985 Candy December 27, 1985 Peggy December 27, 1985 Mandeville never asked the Division for assistance in, or suggestions for, supervising the licensed premises so as to control or eliminate illegal drug violations and drink solicitations. Rather, the evidence is that Mandeville offered to cooperate with the Escambia County Sheriff's Office to "help himself and them" in September 1985 and later in late December 1985 or early January 1986. In essence, as previously mentioned, Mandeville put the Sheriff's Office in contact with Darrell Able and, on one occasion in early January 1986, telephoned the Sheriff's Office to relate that Able supposedly thought he was going to be able to set up a drug deal for the Sheriff's Office. Neither Mandeville nor Able ever re-contacted the Sheriff's Office. Weighing the totality of the evidence, it is found that Mandeville did not supervise the premises and his employees in a reasonably diligent manner under the circumstances. Mandeville was aware from past experience of the problem of drugs in an establishment like the licensed premises in general and in the licensed premises themselves in particular. Mandeville announced adequate policies and placed some management techniques in effect to implement the policies. However, Mandeville did not adequately follow up and did not know that his staff was not following all of the techniques. They were not, for example, regularly reviewing the rules prohibiting drugs and drink solicitation with the employees, and the employees did not understand that they were to report all suspicion of violation of the rules by both employees and patrons to the management. Mandeville himself failed to follow his own procedures by rehiring Margie and failing to fire Margie and Nicole immediately upon receiving information or knowledge of their drug use and dealing at least by December 19, 1985. Not only did Mandeville and his staff not follow all the procedures that he had in place, Mandeville did not seek the assistance and suggestions of the Division for additional management techniques. He did not improve the lighting in the licensed premises, did not polygraph his employees and did not check the background of prospective employees. A combination of the laxity of Mandeville and his staff in enforcing the procedures he had in place and Mandeville's failure to adopt more effective available procedures that he should have known were required under the circumstances proximately caused the employee violations on the premises. As for the drink solicitation violations, Mandeville's written policy against drink solicitation appears to be more honored in the breach. In addition to the thirteen violations within eleven days charged in this case, the two previous notices to show cause against a licensee in which Mandeville had substantial interest and control contained a total of twenty counts of drink solicitation which were settled by stipulation.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking Alcoholic Beverage License Number 27-1311, Series 2-COP, held by Respondent, Michael G. Mandeville, d/b/a The Sugar Shack, 11 Eastfair field Drive, Pensacola, Escambia County, Florida, on all the grounds alleged in the Notice To Show Cause in this case except paragraphs (1)g. and (2)g. RECOMMENDED this 13th day of February 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 13th day of February 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0203 Rulings On Petitioner's Proposed Findings of Fact. Covered by Finding 1. 2.-5. Covered by Findings 16.-19., respectively. 6. Covered by Finding 10. 7.-8. Covered by Findings 20-21, respectively. 9. Covered by Finding 11. 10-11. Covered by Findings 22-23., respectively. Covered by Finding 25. Rejected as cumulative. Covered by Finding 26. 15-16. Covered by Findings 2-3., respectively. Covered by Finding 27. Covered by Findings 8-14. 19-20. Covered by Findings 6, 10 and 13, to the extent necessary. Covered by Findings 8 and 10, to the extent necessary. Whether Mandeville has fired June is irrelevant since the Sugar Shack has been closed since the license was suspended. Covered by Finding 13. Covered by Findings 23 and 24. Covered by Findings 4, 7, and 27. Rulings On Respondent's Proposed Findings of Fact. Covered by Finding 1. 2-4. Covered by Findings 5-7, respectively. 5. Covered by Findings 15, 8, and 9, to the extent necessary. 6-9. Covered by Finding 10, to the extent necessary. (The evidence was not clear exactly who fired the various employees but that is not necessary or relevant). 10. Covered by Finding 1. 11-13. Rejected as unnecessary recitation of procedural history. 14-17. Covered by Findings 16-19., respectively. 18. Covered by Findings 11 and 28. (There was no persuasive evidence that Mandeville "conducted an investigation concerning the activities of Nicole" or "obtained additional information" or that Mandeville fired Nicole "as soon as the Respondent verified this information"). 19-22. Covered by Findings 20-23, respectively. Covered by Finding 23. Rejected as not proven by the weight of the totality of the evidence. See Finding 11. Also, he certainly would not have been in trouble if caught by Nicole, Margie or June. Covered by Finding 25. Rejected as irrelevant and unnecessary. 27-37. Covered by Finding 26, to the extent necessary. 38-40. Rejected as incomprehensible. See also paragraphs 41-49. below. 41-49. Covered by Findings 8-14. There was no evidence that any employee ever has been fired for solicitation of drinks. The evidence was not clear which individual or group of individuals actually fired all of the individuals listed in Finding 10. Their identity is not necessary or relevant. 50. Covered by Findings 8, 13. and 14. 51-52. Covered by Finding 12. (There was only evidence that two employees were fired for refusing to allow a locker search). Covered by Findings 4 and 27. Accepted and covered by Finding 23 and the absence 55.Accepted and covered by the absence of any finding that they did. Covered by Findings 16-23. Rejected as irrelevant and unnecessary. 58-59. Accepted and covered by the absence of any finding that they did. COPIES FURNISHED: Sandra P. Stockwell, Esouire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Michael J. Griffith, Esguire Post Office Box 12308 Pensacola, Florida 32581 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 South Bronugh Street Tallahassee, Florida 32301
The Issue This case is presented on the basis of a certain Notice to Show Cause/Administrative Complaint placed by the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco against Toney Hatfield McDonald Koenemann d/b/a McDonald's Liquor Store and Lounge. The Administrative Complaint contains the following allegations On or about January 10, 1981, you, TONEY HATFIELD MCDONALD KOENEMANN, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws and/or your agent, servant, or employee, DEBRA LYNN HART, at your licensed premises did unlawfully solicit or conspire with a B/M identified as DENNIS to sell and/or deliver a controlled substance, to wit: cannabis, to Beverage Officer R. THOMPSON in violation of F.S. 893.13 to wit: F.S. 561.29. On or about January 10, 1981, you, TONEY HATFIELD MCDONALD KOENEMANN, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws and/or your agent, servant, or employee at your licensed premises, to wit: DEBRA LYNN HART, did solicit Beverage Officer R. THOMPSON to buy her an alcoholic beverage, to wit: beer, said alcoholic beverage subsequently purchased by THOMPSON and given to DEBRA LYNN HART, in violation of F.S. 562.131. On or about January 13, 1981, you TONEY HARTFIELD MCDONALD KOENEMANN, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws and/or hour [sic] agent, servant, or employee, GWENDOLYN HENRY, at your licensed premises, did unlawfully sell and/or deliver a controlled substance, to wit: cannabis, to Beverage Officer J. BATES, in violation of F.S. 893.13 to wit: F.S. 561.29. On or about January 15, 1981, you, TONEY HATFIELD MCDONALD KOENEMAN, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws and/or your agent, servant, or employee, DEDRA LYNN HART, at your licensed premises did unlawfully criminally solicit or conspire with a B/M identified as "COOKIE" to sell and/or deliver a controlled substance, to wit: cannabis, to Beverage Officer R. THOMPSON in violation of F.S. 893.13 to wit: F.S. 561.29. Between January 10, 1981 and January 15, 1981, you, TONEY HATFIELD MCDONALD KOENEMANN, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws, license #23-2362:4-COP, your agent, servant, employee, did maintain a place to wit: your licensed premises at 15966-15974 N. W. 27th Avenue, Miami, Dade County, Florida, which is resorted to by persons rising controlled substances for the purpose of using these controlled substances, to wit: canabis and cocaine, or which place is used for keeping or selling them in violation of FSS[sic] 893.13(2)(a)5. within F.S. 561.29(1)(a). Between January 10, 1981 sod January 15, 1981, you, TONEY HATFIELD MCDONALD, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws, license #23-2362:40 COP [sic], your agent, servant, end/or employee, did keep or maintain a public nuisance on your licensed premises, to wit: maintaining a building or place which is visited by persons for the purpose of unlawfully using substances controlled under Chapter 893 (Florida Statutes as amended) or which is used for the illegal keeping, selling, or delivering of same, contrary to F.S. 823.10 and F.S. 561.29 (1)(c).
Findings Of Fact Having been charged with the allegations set forth in the Issues statement of this Recommended Order, which were brought by the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, the Respondent, Toney Hatfield McDonald Koeneman d/b/a McDonald's Liquor Store and Lounge, requested a Subsection 120.57)1), Florida Statutes, hearing. The formal hearing in this cause was conducted on May 15, 1981. This Recommended Order is being entered in furtherance of that hearing and after granting the parties an opportunity to offer memoranda of law, proposed findings of fact, conclusions of law and recommendations and in keeping with the schedule designed to effectuate that opportunity. 1/ The State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, is a regulatory agency within the State of Florida, which has among its functions, the licensure of individuals who sell alcoholic beverages in the State of Florida and the responsibility to discipline those several licenses, should the licensees violate the underlying regulatory statutes and rules. The Respondent, Toney Hatfield McDonald Koenemann, operates a business known as McDonald's Liquor Store and Lounge at a location on Northwest 27th Avenue, Miami, Dade County, Florida. Respondent is the holder of License No. 23-2363, Series 4-COP, issued by the Petitioner. This license allows the sale of alcoholic beverages at the business location for purposes of consumption off premises. At all times pertinent to the Administrative Complaint, the Respondent was the holder of that license. On January 10, 1981, Beverage Officers R. Thompson and Eddie Alford went to the licensed premises to determine if drugs were being sold or used at the licensed premises. When Thompson and Alford approached the front door to the licensed premises, they asked the man who was at the window in the vicinity of that door, how much it would cost to be admitted. The employee replied that the cost was $2.00. Thompson then asked this individual where they might obtain marijuana and the response was, "you ran get it back there," while pointing to the area in which the licensed premises were used as a discotheque club. This gesture made by the employee at the door was by one Rollins Donald, who was the bar manager. The officers entered the bar area to commence their surveillance: however, Officer Alford only stayed in the licensed premises for a period of approximately fifteen (15) minutes, after which time he left the building for fear that he had can recognized by persons in the bar. Alford was concerned that his identity not be revealed in view of the fact that the beverage officers were operating in an undercover capacity and when operating, law enforcement personnel do not wish persons to know their identity. This revelation would inhibit the investigation. While in the licensed premises, Alford did not observe any form of narcotics violation. Once Thompson had entered the licensed premises, he took a seat at the bar area where certain female dancers were performing a nude dance routine. The dancers were employees of the Respondent. One of those dancers was a person identified as "Debra." While at the bar, a conversation was held between Thompson and "Debra" and Thompson asked her to obtain marijuana for him. "Debra" walked over to a man in the licensed premises who was sweeping the floor and the man gestured with his head, after which time the dancer returned and said, "he didn't have any." "Debra" then left Thompson and returned with a second man and in the presence of "Debra" negotiations were held and Thompson bought a $7.00 quantity of marijuana, which is also known as cannabis sativa L. During the transaction, the non who was identified as "Dennis," left the licensed premises, and after returning, the transaction was concluded. On the same date, January 10, 1981, another team of investigators from the Beverage Division went to the licensed premises. These officers were Sergeants Allan F. Nash and James P. Bates. The officers entered the licensed premises and observed the dancing of the female employees, and undertook the investigation but did not observe any sale or use of narcotics. On January 13, 1981, Sergeants Nash and Bates returned to the licensed premises. The officers, upon entering the licensed premises, purchased beers from the bartender and were seated at a table inside the premises. They were approached by a dancer employed at the bar who identified herself as "Tiny." She asked them for money related to her dancing. Nash gave her $2.00 and Bates gave her $1.00. Bates asked the dancer where he might obtain "reefer," meaning marijuana. The dancer responded that he should give her $5.00. The dancer then left and spoke to a woman behind the bar and obtained a bag from that woman. "Tiny" returned to the officers and sold Bates the contents of the bag for a price of $5.00. The bag contained marijuana, also known as cannabis sativa L. While at the licensed premises on January 13, 1981, Sergeants Bates and Nash observed two men at the bar smoking cigarettes which had an aroma which the officers associated with burning marijuana, a substance which they had the sufficient expertise to detect when confronted with a similar aroma. The barmaid behind the bar where the men were seen to be smoking this material did not take steps to prevent this activity on the part of the men. On the evening of January 13, 1981, Sergeants Nash and Bates took no further steps to purchase narcotics in the bar after the purchase from the dancer "Tiny." Officer Thompson was also at the licensed premises on January 13, 1981. While in the bar proper, he observed a man and woman sitting in a corner of the bar. From that location he noticed a smell which had an odor similar to marijuana. The officer was familiar with the smell of marijuana. Thompson then went to the location of the man and woman and spoke to the woman and asked her if she knew where he might purchase some "coke," meaning cocaine. This woman then accompanied Officer Thompson to the restroom area, and after being introduced to a man identified as "Wallace" concerning the subject of the possible purchase of cocaine, Thompson negotiated with "Wallace" and purchased a quantity of cocaine in the amount of $25.00. "Wallace" then inquired of Thompson about a further purchase of cocaine and Thompson was amenable to that transaction. "Wallace" left the area of the licensed premises and returned and spoke with one of the employees of the bar, a barmaid named "Carrie." He then returned to Thompson and they went to the restroom area again and Thompson paid "Wallace" a price of $37.00 for an additional Quantity of cocaine Thompson then returned to the bar proper and soaks with the barmaid "Carrie" and asked her what she thought he had, referring to the cocaine, and she replied to the effect that she knew and for him to do what he wanted. This same "Carrie" had been at the bar on January 10, 1981, as an employee and Thompson had asked her about cocaine and she indicated that she had used cocaine before but did not use it at present. Officer Thompson returned to the licensed premises on January 15, 1981, in the company of Beverage Officer Ted Fagan. When entering the licensed premises, they spoke to the bar manager, Rollins Donald, and Thompson asked Donald if he wanted to smoke some "grass," meaning marijuana. Donald said that he did not "mess with it" but that "you can go back there," referring to the lounge area and Donald stated that if someone comes in, "I will let you know." Officer Thompson and Fagan then entered the licensed premises and sat in the northwest corner of the discotheque portion of the bar at a table where four or five females were located. One of those females was the individual "Debra" an employee in the licensed premises who worked as a dancer and who is the same "Debra" referred to before in this matter. There were other dancers employed in the licensed premises who were seated around the table. While at the table, cigarettes were passed around and smoked by those persons seated at the table, with the exception of the officers, and those persons included the dancers employed in the licensed premises and a barmaid employed in the licensed premises. The cigarettes that were being smoked had an aroma which was similar to burning marijuana and was identified by the two officers who have a knowledge in the identification of burning marijuana. Thompson, while seated at the table, struck up a conversation with "Debra" and asked her about purchasing marijuana. She then went to another table and returned with a man and after conversing with that man in the presence of "Debra," Thompson purchased marijuana for $6.00 paid to the man. This marijuana is also known as cannabis sativa L. Thompson had identified his request to "Debra" as being a request for "smoke." On the subject of bar management, the Respondent goes to the licensed premises four to six times a week. Visits which the Respondent makes to the licensed premises are during the daylight hours or from noon through the afternoon. She has instructed the manager Donald that she does not like to have narcotics in the lounge and to refuse the entrance of "undesirables." The business has a policy against the usage of drugs by employees. Persons who are employed by the licensed premises are asked if they use drugs and fired if they do. The manager, Rollins Donald, hires employees and after the incidents in question, fired all the employees at the licensed premises. The nude dancers were employed in the licensed Premises for a period of five to six months; however, following the instance of the current Administrative Complaint, the business no longer employs the nude dancers. The police have been contacted about drug violations in the past.
Findings Of Fact The parties stipulated to the factual matters set forth in the Petitioner's emergency order of suspension received by Respondent on July 16, 1987. Those facts are set forth in the following paragraphs 1 through 14. The Stipulated Facts The records of the Petitioner disclose that 2000 Collins Avenue, Corp., is the holder of Alcoholic Beverage License No. 23-02639, Series 4-COP, for a licensed premises known as the Five O'Clock Club, which is located at 2000 Collins Avenue, Miami Beach, Dade County, Florida. On or about May 20, 1987, Petitioner's Investigators O. Santana and H. Garcia, entered the licensed premises of the Respondent as part of an ongoing narcotics investigation. While on the premises, Investigator Garcia purchased crack cocaine in plain view at the bar from a patron named "Maggy". Two male bartenders named Joe and Paul were also present. On May 27, 1987, Investigators Santana and Garcia returned to the licensed premises of the Respondent known as the Five O'Clock Club. Bartender Joe was on duty at this time. At approximately 6:45 p.m., Maggy appeared and inquired of Investigator Garcia whether he wished to purchase more crack cocaine. Investigator Garcia indicated that he desired to do so and gave Maggy $40.00 for the purchase. Maggy left Investigator Garcia, returned shortly thereafter and placed the crack cocaine in a napkin on the bar counter. Maggy cut a small piece of the crack cocaine rock and placed it in her mouth in plain view of the bartender and patrons on the licensed premises. On June 3, 1987, Investigators Santana and Garcia again entered the Five O'Clock Club in an undercover capacity. Once on the premises, the investigators were approached by a white male patron later identified as "Vincent". He asked if the investigators wished to purchase any drugs. The investigators indicated that they would take any thing that was available. The investigators indicated that they would prefer some powder cocaine and if it was unavailable some rock cocaine. Vincent went to the end of the bar and engaged in conversation with an unidentified latin male. He returned to the investigators and indicated that he could get some rock cocaine immediately from someone in the bar. Vincent indicated that he could get three cocaine rocks for $40.00 and the investigators agreed to purchase them. Vincent then returned to talk to the latin male who was also joined by Joe, the bartender on duty . During conversation between these three, Joe indicated that they should be careful to whom they sold as he did not want to get arrested. Vincent then returned to the investigators and requested identification to indicate that they were not police officers. Investigator Garcia removed his wallet showing Vincent false identification which Vincent accepted as legitimate. Garcia gave $40.00 to Vincent who then walked back over to the latin male. Vincent inquired of Joe whether Investigators Garcia and Santana were "okay". Joe indicated that the investigators were okay and were regulars at the bar. Vincent then placed a napkin on the bar in front of the investigators. When the napkin was opened on the bar top, three crack cocaine rocks were revealed. This transaction occurred, and the cocaine rocks exposed, in plain view of patrons and employees on the licensed premises. Joe made no effort at any time to terminate the transaction. On June 4, 1987, Investigators Santana and Garcia returned to the licensed premises known as the Five O'Clock Club in an undercover capacity. At that time, bartender "Billy" was on duty. After a period of time, the investigators observed a black male walk up to Billy and indicate that he was going to "make his rounds." The black male then proceeded from patron to patron speaking in short conversations. When the black male reached an unidentified male patron playing an amusement device, the investigators heard the black male ask the patron if he wanted some "crack". The patron indicated yes and handed the black male $10.00. The black male handed a small, clear plastic bag containing a brownish rock to the patron. Shortly after this transaction occurred, Vincent again returned to the licensed premises. He approached the investigators and inquired whether or not they desired to purchase some additional crack. The investigators indicated that they did, and Garcia handed Vincent $40.00 for the purchase. Vincent left the bar and returned a period of time later and placed a napkin with three cocaine rocks on the bar in front of the investigators. While the cocaine rocks were still in plain view on the bar, Billy served a beer to Vincent. Billy made no effort whatsoever to either complain about or terminate the drug transaction taking place in plain view on the licensed premises. On June 8, 1987, Investigators Santana and Garcia again returned to the Five O'Clock Club in an undercover capacity. While on the premises, the investigators observed a white female walk into the bar and engage several patrons in short conversations. She was stopped and handed a $20.00 bill by another white female patron identified as "Candy". The first white female reached into the front of her pants and pulled out a small plastic bag containing a white powder which she then handed to Candy. Candy stated, "I'm going to the restroom and have some fun." Shortly after this transaction occurred, the investigators left the premises. After exiting the Five O'Clock Club , they were confronted by Vincent. Vincent inquired whether the investigators intended to buy some crack from him on this date. The investigators indicated they would, however they did not wish to make a purchase on a public street. Vincent suggested they go back into the Five O'Clock Club and conduct the transaction at the bar. They did. While seated at the bar, Investigator Garcia gave Vincent $40.00. Billy, the bartender then on duty, stated to Vincent, "you are a great salesman." Vincent then left the bar and returned shortly thereafter placing 3 pieces of rock cocaine on the bar for the investigators and suggested that it was the "best crack on Miami Beach." After the investigators took possession of the cocaine, Billy remarked, "do you really like that stuff?" On June 15, 1987, Investigators Santana and Garcia again returned to the licensed premises of the Five O'Clock Club in an undercover capacity. After a period of time on the licensed premises, the investigators were unable to locate any patrons with whom they had previously transacted drug purchases. Upon leaving the premises, the investigators were approached by an individual known as "Eita", who had been previously introduced to them by Vincent. Eita and the investigators went back into the Five O'Clock Club. Eita informed the investigators that Vincent was incarcerated and that he, Eita, could obtain crack cocaine for them. The investigators agreed and provided Eita $40.00 . Eita left the premises and returned shortly with three cocaine rocks. Eita, in the presence of Billy the bartender, placed the three cocaine rocks on the bar of the licensed premises. He then wrapped the cocaine rocks in a brown piece of paper. Investigator Garcia picked the rocks up and placed them in his pocket. This transaction occurred in the immediate presence of Bill and other patrons on the licensed premises. On June 17, 1987, Investigators Santana and Garcia again returned to the Five O'Clock Club in an undercover capacity. At this time the licensed premises were being serviced by a barmaid known as "Toni". Eita again appeared on the licensed premises. Eita offered to sell crack cocaine to Investigators Santana and Garcia. The investigators agreed and in furtherance of the transaction provided Eita $40.00. Eita left the premises and returned shortly thereafter and seated himself next to the investigators. Eita opened his purse and began to place pieces of rock cocaine on the bar top. While this transpired Toni approached the group and placed a beer in front of Eita. Toni observed as Eita took three cocaine rocks and wrapped them in a cigarette wrapper and handed them to Investigator Garcia. Toni made no effort to either complain about or otherwise terminate the drug transaction taking place on the licensed premises. On the same date as indicated in paragraph 8 above, Investigators Santana and Garcia approached a patron known as "Paco" while on the licensed premises of the Five O'Clock Club. They engaged in a casual conversation with Paco who was known to them as a crack dealer in the Miami Beach area. They inquired of Paco whether or not he could obtain crack cocaine for them and he replied that he could. The investigators provided Paco $30.00. Paco handed Investigator Garcia three cocaine rocks which Garcia placed on the bar and subsequently wrapped in a napkin. This transaction occurred without complaint on the licensed premises in the plain view of Toni and other patrons. On June 22, 1987, Investigators Santana and Garcia returned to the licensed premises in an undercover capacity. Bartender Billy was on duty at this time. After a period of time, Paco arrived on the licensed premises and inquired of the investigators whether they needed "any thing" today. Investigator Garcia asked Paco if he could obtain some rock cocaine on this date. Paco indicated that he could. Paco left the premises, returned shortly thereafter and gave Investigator Garcia a large cocaine rock. Paco then demanded $40.00. This transaction took place in plain view at the bar in the presence of Billy and other patrons in the licensed premises. At no time did Billy complain about or terminate the transaction. On June 24, 1987, Investigators Santana and Garcia entered the licensed premises of the Five O'Clock Club in an undercover capacity. Bartender Joe was on duty at this time. Paco was on the licensed premises. The investigators listened while several other patrons approached Paco in an effort to obtain rock cocaine. Paco indicated that rock cocaine was presently unavailable. After a period of time, a black male came into the licensed premises and sat by Paco. The black male provided Paco several cocaine rocks which he distributed to the patrons who had made the previous requests. Further, Paco provided Investigator Garcia with a large cocaine rock for the purchase price of $30.00. These transactions took place at the bar and in the presence of Joe and other patrons. At no time did Joe object to the drug transactions taking place at the bar of the Five O'Clock Club On the same date identified in paragraph 11, shortly after the foregoing transactions occurred, Eita came into the Five O'Clock Club. Eita asked the investigators if they wished to purchase any rock cocaine and they indicated that they did. They provided Eita $35.00 whereupon he left the premises. Eita returned shortly thereafter and placed cocaine rocks on the bar in plain view of Joe and other patrons at the bar. The investigators then took possession of the cocaine. At no time did Joe protest the occurrence of this transactions. On July 13, 1987, Investigators Santana and Garcia returned to the licensed premises known as the Five O'Clock Club in an undercover capacity. While seated at the bar, the investigators purchased two cocaine rocks from a patron known as "Orlando". Bartender Billy was on duty at this time. The transaction took place at the bar in plain view of Billy and other patrons on the licensed premises. At no time did any employee of the bar make an effort to terminate the transaction. All substances purchased at the licensed premises and identified as cocaine have been laboratory analyzed and determined to be cocaine. Additional Facts In addition to the above stipulated facts, Respondent presented testimony upon which the following factual findings are based. Myrtle Klass is the predominant shareholder of the respondent, 2000 Collins Avenue Corporation. Mrs. Klass is 88 years of age, is in declining health, and requires the services of a full-time caregiver. Mrs. Klass's late husband purchased the building in which the Five O'Clock Club is located in the late 1950's. Upon his death a trust fund was created, 75% of which goes to Mrs. Klass and 25% of which is divided between the Klass's two children, Mrs. Marshall and her brother. Her brother, because of health problems, is totally dependent on the income from such trust fund. Portions of Mrs. Marshall's share of the trust fund are passed on to her children, one of whom is likewise dependent on such income. At the time of acquisition of the 2000 Collins Avenue building and license No. 23-2639, the neighborhood was a substantially better locale than at present. The neighborhood has significantly declined and is populated by "street people" whose involvement in drug dealing is endemic. Mrs. Klass, since 1963, has utilized the services of a certified public accountant-attorney and a property manager to manage the overall operation of the licensed property. She has utilized the same "on premises" manager since 1963 to supervise the day to day operation of the Five O'Clock Club. There have been no prior violations during the approximate 25 years in which the premises have been operated in this manner. The Klass family trust sold the building in early 1987 because of the decline in the neighborhood. The Five O'Clock Club was due to be closed permanently in September 1987. At the time of the service of the Petitioner's emergency order, license No. 23-2639, services 4-COP, was the subject of a contract for sale for $45,000 to the owner of a family restaurant located elsewhere on Collins Avenue. Because of the emergency order of suspension, the contract could not be completed. Because of Mrs. Klass's age and health, her daughter, Doris Marshall, represents that Mrs. Klass has no desire to hold any alcoholic beverage license, but only desires to sell the existing license so as not to deprive the trust and the persons dependent on the income therefrom of an asset valued at $45,000.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by Petitioner revoking Respondent's alcoholic beverage license No. 23-2639, series 4-COP, subject first to a suspension of 120 days or such lesser period of time within which Respondent may sell the license, in an arms length transfer, to a duly qualified transferee who will agree to 1) operate such license at a location other than the present licensed premises 2) not employ any personnel of the Respondent that were present on the premises during the incidents set forth in the Notice To Show Cause and 3) operate the license under a name other than the "5 O'Clock Club." Upon completion of the license transfer in accordance with the above stated conditions or the expiration of the 120 day suspension period, whichever occurs first, the license, as to the Respondent in this case, shall stand revoked. DONE AND RECOMMENDED this 29th day of February, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 29th day of February, 1988. APPENDIX The following constitutes my ruling on proposed findings of fact submitted by the Respondent. All stipulated facts are included in findings numbered 1-14. Accepted in finding number 15. Accepted in finding number 16. Accepted in finding number 17. Accepted in finding number 18. Accepted in finding number 19. Accepted in finding number 20. COPIES FURNISHED: Douglas Moody, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Harold F. X. Purnell, Esquire OERTEL & HOFFMAN, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Daniel Bosanko, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Van B. Poole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact At all times pertinent to these proceedings, Roosevelt Horne was doing business as Roosevelt's Playhouse at 541 Julia Street, New Smyrna Beach, Volusia County, Florida, pursuant to Florida alcoholic beverage license number 74-00549, Series 2-COP. Roosevelt's Playhouse is the licensed premises. From September 21, 1988, through October 1, 1988, Blossem Butler White was employed by Mr. Horne at Roosevelt's Playhouse. Ms. White was the only person employed at Roosevelt's Playhouse by Mr. Horne from September 21, 1988, through October 1, 1988. During the period of September 21, 1988, through October 1, 1988, Reylius Thompson, a Law Enforcement Investigator of the Petitioner, participated undercover in a narcotics investigation of Roosevelt's Playhouse conducted by the Petitioner and New Smyrna Beach law enforcement officials. On the afternoon of September 21, 1988, Investigator Thompson entered Roosevelt's Playhouse. There were approximately 5 to 6 persons on the premises. Ms. White was the bartender. Mr. Thompson asked Ms. White if he could purchase crack cocaine. Ms. White first suggested that Investigator Thompson approach a male patron in the bar. Investigator Thompson indicated that the individual would not sell anything to him. Ms. White then asked Investigator Thompson how much cocaine he wanted and he indicated two pieces. Investigator Thompson gave Ms. White $20.00. Ms. White left her position behind the bar and approached a female patron identified as Angie Lewis. Ms. White and Ms. Lewis then approached a man in the lounge identified as Carlton. Ms. White gave Carlton money and Carlton gave Ms. White an item. Ms. White and Ms. Lewis returned to the bar and Ms. Lewis gave a piece of crack cocaine to Investigator Thompson. Investigator Thompson left Roosevelt's Playhouse and delivered the cocaine to Sergeant Lenz of the New Smyrna Beach Police Department. During the afternoon of September 29, 1988, Investigator Thompson entered Roosevelt's Playhouse. Ten or less patrons were on the premises. Ms. White was on duty as the bartender. Investigator Thompson sat at the bar and asked Ms. White if he could buy crack cocaine from her. Ms. White indicated that she did not have any at that time and asked if he could wait 15 minutes. After fifteen minutes Ms. White took Investigator Thompson into the men's restroom where she retrieved several pieces of crack cocaine wrapped in a napkin. Investigator Thompson took two pieces of the crack cocaine and paid Ms. White $40.00. Investigator Thompson left Roosevelt's Playhouse and delivered the cocaine to Sergeant Lenz. Investigator Thompson returned to Roosevelt's Playhouse during the evening of September 29, 1988. Ms. White was on duty as the bartender. Investigator Thompson asked Ms. White for one piece of crack cocaine. Ms. White left the service bar and went to the ladies restroom. Ms. White returned shortly thereafter and gave Investigator Thompson a piece of crack cocaine. Investigator Thompson paid Ms. White $10.00. Investigator Thompson left Roosevelt's Playhouse and delivered the cocaine to Sergeant Lenz. During the afternoon of September 30, 1988, Investigator Thompson entered Roosevelt's Playhouse. Five to six patrons were on the premises. Ms. White was on duty as the bartender. Investigator Thompson asked Ms. White is she had any crack cocaine. Ms. White said that he should get it from a man in the lounge later identified as Darnell. Investigator Thompson indicated that he did not want to buy it from Darnell. Ms. White then told Investigator Thompson that she would get it for him. Investigator Thompson then gave Ms. White $20.00 and Ms. White gave the money to Darnell in exchange for an item. Ms. White returned to her position behind the bar and gave Investigator Thompson a piece of crack cocaine. Investigator Thompson left Roosevelt's Playhouse and delivered the cocaine to Sergeant Lenz. During the evening of October 1, 1988, Investigator Thompson entered Roosevelt's Playhouse. Ms. White was on duty as the bartender. Ms. White was standing by a video machine talking to an individual known as Tony. Investigator Thompson approached the two individuals and asked Tony if he could buy crack cocaine. Tony said yes, took a piece of crack cocaine from his pocket and placed it on top of the video machine. Investigator Thompson gave Tony $20.00 and took the cocaine. Ms. White witnessed the. transaction. Investigator Thompson left Roosevelt's Playhouse and delivered the cocaine to Sergeant Lenz on October 3, 1988. The items purchased by Investigator Thompson at Roosevelt's Playhouse were analyzed and determined to be cocaine. During the period of September 21, 1988, through October 1, 1988, Mr. Horne was told by a friend that the friend suspected that Ms. White was selling illegal drugs at Roosevelt's Playhouse. Mr. Horne approached Ms. White on two separate occasions and asked her if she was in fact selling drugs. Ms. White denied that she was selling drugs. Mr. Horne did not take any other steps to insure that Ms. White was not selling, or allowing the sale of, drugs on the premises. During the time that Investigator Thompson was in Roosevelt's Playhouse, Mr. Horne did not enter the premises. Mr. Horne did not enter the premises very often despite the fact that Mr. Horne lived only one house from the premises. During the period at issue in this case Mr. Horne's wife had a stroke and was in the hospital. Mr. Horne spent his time visiting his wife in the hospital and working as a building contractor. Other than asking Ms. White if she was selling drugs in the lounge, Mr. Horne did not take any steps to prevent the sale of illegal drugs at Roosevelt's Playhouse. Roosevelt's Playhouse is closed and Mr. Horne is attempting the sell it. Mr. Horne cooperated with the Petitioner in the prosecution of this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Roosevelt Horne, d/b/a/ Roosevelt's Playhouse, be found guilty of violating Sections 561.29(1)(a) and (c), Florida Statutes (1987). It is further RECOMMENDED that the alcoholic beverage license held by Roosevelt Horne be suspended for a period of six months to allow Mr. Horne an opportunity to sell the license and business. It is further RECOMMENDED that, if Mr. Horne has not sold his alcoholic beverage license by the end of the six months suspension of Mr. Horne's license, Mr. Horne's alcoholic beverage license be revoked. DONE and ENTERED this 19th day of July, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 day of 19th July, 1989. APPENDIX Case Number 89-0793 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1. 1. 2-3. 2. 4. 3. 5. See 4. 6-7. Not supported by the weight of the evidence. The evidence did not prove what was being sold on September 21, 1988, by Carlton and on September 23, 1988. 8. See 5. 9. 6. 10. See 7. The sixth sentence is not supported by the weight of the evidence. 11. 8. 12. 9. 13-14. 10. 14-16. 11. COPIES FURNISHED: John B. Fretwell Assistant General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Roosevelt Horne d/b/a Roosevelt's Playhouse 541 Julia Street New Smyrna Beach, Florida 32069 Leonard Ivey Director Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Joseph A. Sole General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927
The Issue Whether controlled substances were possessed, sold, or used at the Jolly Spot Lounge and, if so, whether the owner's alcoholic beverage license should be revoked or whether he should be otherwise disciplined.
Findings Of Fact Based upon the testimony of the witnesses and documentary evidence received at the hearing, in addition to the testimony found in the above-referenced depositions, the following findings of fact are made: The Petitioner is the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Department). The Respondent is Lawrence C. Whitehead, (Whitehead), d/b/a/ the Jolly Spot Lounge located at 508 East Nelson Avenue, DeFuniak Springs, Walton County, Florida. At all times pertinent to the instant matter, Whitehead operated the Jolly Spot Lounge where alcoholic beverages were sold under Alcoholic Beverage License No. 76-00016, Series 2-COP. During the spring and summer of 1996, Whitehead was the subject of an undercover investigation regarding allegations of narcotic sales at the Jolly Spot Lounge. During the course of the investigation, Investigator James Lorenz of the Walton County Sheriff’s Department and other law enforcement officers met with a confidential source for the purpose of investigating complaints of narcotic sales at the Jolly Spot Lounge. The confidential source was instructed by the law enforcement officers to attempt to purchase narcotics at the licensed premises. At all time pertinent to the investigation, the confidential source was searched before the investigation to confirm that she had no contraband on her person. After each of the narcotic sales, the confidential source would rejoin the law enforcement officers where she would surrender the purchased cocaine. On eight separate occasions (May 7, 1996; May 24, 1996; May 24, 1996; May 31, 1996; May 31, 1996; June 7, 1996; July 27, 1996; and July 28, 1996) undercover police officers, confidential informants under the direct supervision and direction of law enforcement officers, or investigators entered the licensed premises in an attempt to purchase cocaine from employees or patrons. On each occasion, the officers, the informants, or the investigators were able to consummate a drug deal and purchase some form of cocaine. On May 7, 1996, the confidential source entered the Jolly Spot Lounge and met with a person identified as Ernest Whitehead (E. Whitehead). E. Whitehead was tending bar, and he told the confidential source that he was the manager. E. Whitehead and the confidential source discussed the purchase of crack cocaine and subsequently, E. Whitehead sold the confidential source crack cocaine in exchange for twenty dollars. Both the conversation and the narcotics transaction occurred in an open manner without any attempt to conceal the subject matter of the conversation or the transaction. The substance purchased from E. Whitehead was later analyzed at the Florida Department of Law Enforcement (FDLE) laboratory and determined to be cocaine. On May 24, 1996, a confidential source drove to the Jolly Spot Lounge, and while in the parking lot she was approached by a person identified as Darrell Guice. The confidential source and Guice engaged in a conversation regarding the purchase of narcotics. Subsequently, Guice entered the Jolly Spot Lounge and immediately returned with crack cocaine. The cocaine was sold to the confidential informant in exchange for twenty dollars. The conversation and the narcotics transaction occurred in an open manner without any attempt to conceal the subject matter of the conversation or the transaction. The substance purchased on this occasion was later analyzed by the FDLE laboratory and determined to be cocaine. Later on May 24, 1996, the confidential source, returned to the Jolly Spot Lounge. While in the parking lot, E. Whitehead exited the Jolly Spot Lounge and approached the confidential source's vehicle. The confidential source and E. Whitehead engaged in a conversation regarding the purchase of one hundred dollars' worth of cocaine. E. Whitehead then sold the confidential source five pieces of crack cocaine in exchange for the bargained price. The conversations and the narcotics transaction occurred in an open manner without any attempt to conceal the subject matter of the conversation or the transaction. The substance purchased on this occasion was later analyzed by the FDLE laboratory and determined to be cocaine. On May 31, 1996, the confidential source returned to the Jolly Spot Lounge, and similar to past episodes, E. Whitehead exited the Jolly Spot Lounge and approached the confidential source’s vehicle. The confidential source and E. Whitehead engaged in a conversation regarding the purchase of fifty dollars worth of cocaine. Soon thereafter, E. Whitehead sold the confidential source three pieces of crack cocaine. The conversation and the narcotics transaction occurred in an open manner without any attempt to conceal the subject matter of the conversation or the transaction. The substance purchased on this occasion was later analyzed by the FDLE laboratory and determined to be cocaine. Later on May 31, 1996, the confidential source returned in a vehicle and parked in a parking lot immediately across the street from the Jolly Spot Lounge. E. Whitehead exited the Jolly Spot Lounge and spoke with the confidential informant regarding the purchase of cocaine. E. Whitehead reentered the Jolly Spot Lounge and shortly thereafter, Donald Whitehead exited the Jolly Spot Lounge and delivered seven pieces of cocaine to the confidential source. After the transaction was completed, Donald Whitehead returned to the Jolly Spot Lounge. The conversation and the narcotics transaction occurred in an open manner without any attempt to conceal the subject matter of the conversation or the transaction. The substance purchased on this occasion was later analyzed by the FDLE laboratory and determined to be cocaine. On June 7, 1996, the confidential source returned to the Jolly Spot Lounge and met with E. Whitehead for the purpose of discussing the purchase of a “cookie.” A cookie is a slang word for an ounce of cocaine. After brief negotiations, E. Whitehead informed the confidential source that the “cookie” would cost $1,100.00. Later on the same day, the confidential source returned in her vehicle, parked in the Jolly Spot Lounge parking lot, and met with E. Whitehead. After a brief meeting, E. Whitehead went into the Jolly Spot Lounge and immediately returned with a plastic bag containing the “cookie” of cocaine. The cocaine was given to the confidential source in return for $1,100.00. The conversation and the narcotics transaction occurred in an open manner without any attempt to conceal the subject matter of the conversation or the transaction. The substance purchased on this occasion was field tested with positive results for the presence of cocaine and confirmed by the U.S. Department of Law Enforcement, Drug Enforcement Administration Laboratory. On or about July 27, 1996, Investigative Aide T. Kent, a sworn correctional officer, entered the Jolly Spot Lounge in furtherance of the above referenced investigation. Kent met with persons identified as Charles Whitehead and “Sugar Man,” and engaged them in conversation regarding the purchase of crack cocaine. Charles Whitehead was tending the bar. During this conversation, a person identified as “Jody” approached, and “Sugar Man” advised Kent that “Jody” could sell her some crack cocaine. Kent ordered and “Jody” delivered two rocks of crack cocaine in exchange for $40.00. At or near the time of the transaction, “Jody” gave “Sugar Man” a piece of crack cocaine who in turn immediately began smoking it in the Jolly Spot Lounge. The conversation and the narcotics transaction occurred in an open manner without attempt to conceal the subject matter of the conversation or the transaction. The substance purchased on this occasion was later analyzed by the FDLE laboratory and determined to be cocaine. On July 28, 1996, Kent and Division Special Agent Beverly Causey entered the Jolly Spot Lounge. There were approximately 40 patrons inside the premises. Kent noted that there was the distinctive odor of crack cocaine inside the premises. “Sugar Man” met Kent and Causey at the bar. Kent told “Sugar Man” that they wanted some more crack cocaine and they were directed to “Jody.” Kent and Causey each purchased from “Jody” what he represented to be crack cocaine. The conversation and the transaction occurred in an open manner without attempt to conceal the subject matter of the conversation or the transaction. The substance purchased on this occasion was later analyzed by the FDLE laboratory and determined not to be cocaine. Administrative charges were brought against Whitehead based upon alleged violations of the controlled substance statute within the beverage statute.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order revoking alcoholic beverage license number 76-00016, Series 2-COP, issued to Lawrence C. Whitehead, d/b/a the Jolly Spot Lounge, for premises located at 508 East Nelson Avenue, DeFuniak Springs, Walton County, Florida. DONE and ORDERED this 19th day of December, 1996, at Tallahassee, Florida. WILLIAM A. BUZZETT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1996.
Findings Of Fact At all times pertinent to the allegations herein, Respondent, Leslie G. Hessings, held Florida Alcoholic Beverage License Series Number 2-COP, License Number 60-351, for the Twilight Inn located at 121 Southwest Fifth Street, Belle Glade, Florida. The Palm Beach County Sheriff's Department, based on information received from street sources indicating the presence of narcotics on the Respondent's premises, on January 25, 1983, undertook an investigation of Respondent's operation through the use of a confidential informant subsequently identified as Samuel Colman. During the early part of the day on January 25, 1983, Sergeant Richard Browning of the Belle Glade office of the Palm Beach County Sheriff's Department, conducted a formal briefing of the confidential informant, Mr. Colman, as to his duties in the impending investigation. Mr. Colman was a professional informant who had worked for the Sheriff's Department before. Consequently their briefing was primarily to tell him where to go as he was already familiar with the procedures. His person and his vehicle were thoroughly searched for drugs and found to be completely clean. He then was furnished a hidden transmitter that would permit everything he said and did to be heard by Sheriff's Department agents who would be posted nearby with a receiver. Robinson and Hallar gave Colman $20.00 in money belonging to the police department and sent him to attempt to make a purchase of a controlled narcotic in the Respondent's establishment. At all times from the instant Mr. Colman was searched and wired until such time as he entered the establishment approximately 400 or 500 feet down the street from where Robinson and Hallar were parked in their car, Colman was in their sight. They saw Colman enter the bar; heard him carry on small talk with some other individuals; and order a beer. After ordering the beer he engaged in conversation with some individual about buying reefers. It appeared to Hallar and Robinson that this individual with whom Colman spoke regarding buying marijuana was the same individual from whom he purchased the beer, the bartender but neither knew who the voice belonged to. In fact he did make a purchase in the bar and after finishing his beer, left. From the time Colman left the bar until he arrived at the car where Browning and Hallar were sitting, he again was constantly in sight. When he got to the car, he pulled from his pocket two (2) bags of what was subsequently identified by the Palm Beach County Sheriff's Department Crime Lab as marijuana, and gave them to Sergeant Browning. Browning and Hallar, accompanied by Mr. Colman went back to the bar area later in the afternoon just about dusk and sent Colman back to the bar to try and buy from the owner/manager whom they knew to be Shirley Hessings. Before going in the second time, the informant was again thoroughly searched, as was his vehicle, and he was provided with police money. From the time he left the two officers until he entered the bar he was constantly in their sight. Colman was again wearing the radio transmitter and when he entered the bar the officers heard the juke box and heard Colman speak to several unidentified individuals. They also heard him speak to someone identified to them as Shirley and heard him say after leaving the bar that he bought a $8.00 bag from a black female who was identified to him as Shirley. The officers were unable to hear any of the conversation between Colman and the individual identified as Shirley because of the background noise on the tape caused by the juke box. However, when he arrived at the car where the officers were located, after being in constant sight after he left the bar until arriving at the car, he turned over to them an $8.00 bag of what was subsequently identified by the Palm Beach County Sheriff's Department Crime Lab as marijuana. Samuel Colman is dead and therefore did not testify at the hearing. The testimony of both Sergeant Browning and Detective Hallar concerning what Colman told them as to the identity of the individuals from whom he purchased the marijuana is hearsay and, as such cannot, without corroboration, serve as the basis for a finding of fact. It must be concluded therefore that while there is no doubt that Colman purchased marijuana while he was in the Twilight bar on January 25, it cannot be established who he purchased it from. Based on the two (2) buys, however, the police obtained a search warrant for the premises that was used as the basis for a search conducted on January 26 or 27, 1983. When they entered the Twilight bar pursuant to the warrant, the only individual present at the time was a black female identified as Beverly Hessings. Beverly Hessings is Respondent's sister. Detective Hallar was involved in the search of the Twilight Inn on January 26. When he entered the bar he found nineteen (19) $8.00 bags of a substance, subsequently identified as marijuana, packaged for sale in the store room. The little bags were hidden from plain view and were located in a candy box lid. They were identical with those previously given him by Samuel Colman after his two (2) controlled buys. Officer Hallar left the little baggies where they were and called the evidence custodian, Sergeant Braido, who took custody of them. Officer Dowdell of the Belle Glade Police Department was also a participant in the search on January 26 or 27. During the search he found a brown paper bag containing twenty-one (21) small manila envelopes which was under a hole in the cushion on a bench which was located on the north side of the dance floor. Dowdell took the paper bag to Detective Simons who in turn immediately released it to Detective Braido. These twenty-one (21) bags, each contained a substance which was subsequently identified as marijuana. When Dowdell entered the bar he observed between ten (10) and twenty (20) patrons. The officers had the patrons stand up against the wall while the search was going on. The bar is dark even during the day time, but it is lighted on the inside, though dimly, and it is possible to see. While the search was going on a policeman was stationed at each exit and it is unlikely any of the patrons or staff were able to exit the bar from the time the search was commenced. Another participant in the search was DABT Investigator Clark Raby, who was present because of a request from the Palm Beach County Sheriff's Department due to the fact the premises were licensed by Petitioner. Raby's area to search was the kitchen and laid out on a table in the kitchen he found what appeared to be several lottery tickets which he confiscated and maintained until he was able to relinquish them to the evidence custodian. These tickets, which appeared to be yellow sales slips bearing no proprietory identification - the kind of check one might get in a hardware store - had numbers printed on the bottom, but also had a series of numbers written on the check along with amounts of money written thereon. These tickets were in plain view on the table in the kitchen and Raby identifies them as bolita lottery tickets by virtue of his experience with such kinds of tickets in the past. At the close of Petitioner's case, respondent moved to dismiss the Notice To Show Cause on the basis that Petitioner had failed to establish that Respondent had a license on the dates alleged on the Notice To Show Cause. He contended that the actual license or a copy thereof was not admitted into evidence, which is true, and that the testimony of Lieutenant Smith indicated only that Respondent had a license in January, 1983. This testimony was adequate, absent a showing that Respondent held a license for less than an entire month, to establish jurisdiction and the motion was denied. Respondent also moved to dismiss on the basis that the testimony of the investigating officers as well as the sheets upon which the chemist's analysis of the substances was recorded reflected dates other than those alleged in the Notice To Show Cause as being the dates on which the offenses took place. It was obvious from an examination of the analysis sheets that they reflected, as to the individual buys, the correct date. As to the substance discovered during the search, the analysis sheet reflected January 27, which is one day later than the date listed in the Notice To Show Cause. The Notice to Show Cause reflected that the substance was on the license premises on or about January 26, which is sufficiently related in time to the evidence to support a denial of the motion to dismiss.
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 committed the violations alleged in the Emergency Order of Suspension and Notice to Show Cause and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating licensed alcoholic beverage establishments. At all times material to the allegations in this case, the Respondent, Café Iguana, Inc., doing business as Café Iguana, held alcoholic beverage license number 23-01868 which is a series 4-COP license. At all times material to the allegations in this case, Iguana was located at 8505 Mills Drive, D-75, in Miami, Dade County, Florida. At all times material to the allegations in this case, the following persons were officers and/or shareholders of the Respondent corporation: Mark Vasu, Shannon Miller, David Lageschulte, and Gerald Joe Delaney. Prior to the issuance of the Emergency Order of Suspension which is at issue in this proceeding, the Department conducted an investigation of alleged acts of recurring illegal narcotic activity on the licensed premises. In furtherance of such investigation Special Agent Bartelt, Detective Fernandez, and Detective Robertson entered the licensed premises in an undercover capacity for the purpose of purchasing illegal substances. In this regard Special Agent Bartelt observed the two detectives as they attempted to acquire illegal substances from persons within the licensed premises. The investigation at Iguana began on March 15, 1997, and was concluded on June 12, 1997. In total, the detectives made seven purchases of a substance which was later tested and determined to contain cocaine. Respondent did not object to, nor dispute the accuracy of, the lab reports received into evidence which confirmed the substances contained cocaine. As to the purchase which occurred on March 15, 1997, Detective Fernandez approached a female bathroom attendant and represented that she wanted "to get hooked up." According to Detective Fernandez this type of language is commonly used to ask for illegal drugs. She sought cocaine, by implication in the language of such transactions. The attendant referred her to an individual known in this record as "Anthony" who was the men's restroom attendant. Standing in the doorway to the men's restroom, Detective Fernandez exchanged $20.00 for approximately one-half gram of cocaine. The cocaine was in a clear plastic zip-lock style bag that was no larger than two inches by two inches. Upon receipt of the bag, Detective Fernandez placed it in her pocket and left the restroom area. All of the transactions later described were completed in the same manner. Detective Fernandez made no effort to be noticed by the club's management. She was not conspicuous in the purchase of the illegal substance. Instead, she made every effort to mimic her perception of a drug transaction. The next purchase occurred on April 4, 1997. On this date, Detective Fernandez went back to Anthony and again requested drugs. She was told to wait. Approximately forty-five minutes later she returned to the doorway area adjacent to the men's room. At that time other females were also waiting for Anthony. After transferring $25.00 to the attendant, Detective Fernandez received approximately one-half gram of cocaine. During this purchase, Detective Fernandez believes Respondent's employees may have walked past to use the restroom but could not verify that anyone observed her transaction. Additionally, Detective Fernandez did not observe a sale of a similar type to the other females in line at the restroom corridor. On April 12, 1997, Detective Fernandez went to Anthony and asked him if she could "get a half." Noteworthy on this date was the fact that Detective Fernandez went inside the men's room to make the transaction. During her stay in the restroom she saw a bartender and a security person who were using the facility. Neither asked why she was inside the men's restroom. Neither interfered with her discussion with Anthony. Instead, Anthony introduced her to a white male who was using the telephone in the room who is identified in this record as "Juan." Anthony reported that Juan was "my man." In exchange for $40.00 Anthony delivered approximately one gram of cocaine to Detective Fernandez. There is no evidence that the bartender or the security person observed any of the transaction which took place. On May 9, 1997, Detective Fernandez again went to Respondent's club and sought illegal drugs. This time she asked a bartender how to "hook up." He referred her to the restroom. Anthony was not at the men's room, so she went to the female attendant known in this record as "Rica." Inside the female's restroom Rica exchanged approximately one-half gram of cocaine for $25.00. On May 15, 1997, Detective Fernandez purchased one-half gram of cocaine from Anthony for $30.00. Later, during the early morning hours of May 16, 1997, Detective Fernandez made a second purchase from Anthony. Although there were other patrons of the bar within the restroom, there is no evidence that any of them witnessed either of these transactions. The final purchase by Detective Fernandez was on June 11, 1997. On this date she contacted Rica and again sought to purchase drugs. She handed Rica $30.00, and the attendant left the restroom and returned a short while later with approximately one-half gram of cocaine. Although there were numerous patrons entering and exiting the facility, there is no evidence that anyone observed Detective Fernandez receive the bag of cocaine. At all times material to the allegations of this case, Iguana was a popular club which was well attended on the nights of this investigation. The audio system for the club, although especially dominating on the dance floor, distributed music throughout the licensed premises. In this regard it is uncertain if any of the conversations between the undercover officer and the parties selling drugs could be easily overheard. As to the lighting system for the club, at all times material to this investigation, lighting would have been set at its lowest levels of illumination throughout the licensed premises. Consequently, only the restrooms would have been well- lit. As a result it is uncertain as to how visible transactions occurring outside the restrooms would have been. At all times material to the allegations of this case, the restroom attendants were not employees of Iguana or its management company but were contract personnel through a third party valet service operated by David Cook. Iguana paid Cook to provide restroom attendants. This contract was terminated on June 13, 1997, when Respondent learned of the attendants' alleged involvement in the illegal transactions described above. Further, Iguana notified Cook of its intention to assist in the prosecution of such individuals. Iguana is managed by a company known as Chameleon Concepts. In order to effectively identify and minimize potential losses for Iguana, Chameleon Concepts contracted with a company whose purpose was to audit operations to ensure the overall integrity of the business operation. This auditor, a forensic fraud examiner, was to identify losses or potential losses due to fraud, embezzlement, policy or procedure violations, or other improprieties. Thus, effective October 1, 1996, Iguana was voluntarily being reviewed by an independent company, with an on-going, monthly retainer, to determine if there were any potential improprieties. The auditor for the company, John Capizzi, found no violations of policy, alcoholic beverage rules, or regulations. Prior to the investigation of this case, Iguana employees were required to participate in responsible vendor programs. Prior to the investigation of this case, Iguana managers were required to participate in responsible vendor programs. Iguana management routinely conducts meetings wherein responsible vendor practices are discussed. Iguana and Chameleon Concepts have developed written employee handbooks and policies which specifically admonish employees regarding illegal substances on the licensed premises. Iguana employees and managers are instructed to advise the management of any suspected illegal substances on the licensed premises. In the past, Iguana has participated in campaigns designed to retain false identification used by suspected underage drinkers to gain entrance to licensed premises. The testimony of Mr. Vasu regarding efforts of the company to comply with all rules and regulations of the Department has been deemed credible and persuasive regarding Iguana's position on illegal drug transactions. Management would not condone or allow illegal drug sales if it were known to them. None of the officers or shareholders of Iguana were aware of the illegal drug transactions occurring on the licensed premises. The only Iguana employee alleged to have been connected to a sale was one incident wherein a bartender referred Detective Fernandez to the restroom. Cocaine is a controlled substance, the sale of which is prohibited by Florida law. None of the purchases described herein were of such a nature or were so conspicuously transacted that a reasonable person would have known illegal sales were taking place. None of the patrons of the club who testified for Respondent were aware that illegal drug sales took place within the licensed premises. The detective making the purchases did not act in a flagrant or open manner. Moreover, the detective did not attempt to verify whether or not bartenders, security guards, or managers employed by Iguana were aware of the restroom attendants' illegal activities. At best, one bartender knew to refer the detective to the restroom. In addition to selling illegal drugs, the restroom attendants handed out towels to club patrons and offered for sale personal toiletry items at tables maintained within the restroom. For a club patron to have money to purchase such items or tip the attendant would be a reasonable assumption.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order dismissing the Emergency Order of Suspension. DONE AND ENTERED this 23rd day of July, 1997, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July 1997. COPIES FURNISHED: Miguel Oxamendi, Senior Attorney Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Louis J. Terminello, Esquire Chadroff, Terminello & Terminello 2700 Southwest 37th Avenue Miami, Florida 33133-2728 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
