Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent's license number 42-55 be revoked. Respectfully submitted and entered this 27th day of February, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. C.A. Nuzum Director Division of Beverage 210 Johns Building Tallahassee, Florida Mr. Charles F. Tunnicliff Department of Business Regulation 725 S. Bronough Street Room 210, Johns Building Tallahassee, Florida 32304 Mr. White Route 2, Box 13B Marianna, Florida 32446
The Issue Whether Respondent's plea of nolo contendere to the crime of possession of a controlled substance (for which adjudication was withheld) is sufficient to support the imposition of discipline with regard to his alcoholic beverage license.
Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to issue beverage licenses pursuant to Chapter 561, Florida Statutes, and applicable rules. Prior to September 11, 2000, Respondent, doing business as Smiley's, was the owner and holder of a beverage license, DBPR License No. 74-05336, Series 2-COP, which permits him to sell beer and wine for consumption on premises. On October 9, 1998, Respondent was charged by information with sale and delivery of cocaine. He was acquitted of that charge on May 12, 2000. Subsequently in a separate incident, Respondent was charged with possession of cocaine and on September 11, 2000, pleaded no contest to that charge. Pursuant to Respondent's timely request for formal proceedings, Petitioner's counsel initiated discovery in the course of this administrative proceeding through a Request for Admissions to which Respondent failed to respond. Respondent failed to provide a satisfactory explanation for this circumstance and, upon motion of Petitioner, the Request for Admissions was deemed admitted. Those admissions establish that Respondent entered a no contest plea on September 11, 2000, to the charge of possession of cocaine and that the plea bargain negotiated at that time also included two days' incarceration. Additionally, the admissions establish that Respondent is aware that possession of cocaine is a crime punishable by imprisonment for a term of five years. Respondent's own testimony is uncorroborated by other direct evidence and fails to establish that he possesses good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order revoking Respondent's alcoholic beverage license, DBPR License No. 74-05336, Series 2-COP. DONE AND ENTERED this 30th day of July, 2001, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2001. COPIES FURNISHED: Paul Kwilecki, Jr., Esquire 629 North Peninsula Drive Daytona Beach, Florida 32118 Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1007 Lt. John P. Szabo Department of Business and Professional Regulation 400 West Robinson Street, Room 709 Orlando, Florida 32801 Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Based on the stipulations of the parties, the exhibits received in evidence, and the testimony of the witnesses at the hearing, I make the following findings of fact. Sweet's Lounge, Inc., held alcoholic beverage license number 16-350, Series 2-COP, for the location of Sweet's Lounge, 706-710 Northwest First Street, Dania, Florida, at all times relevant to the charges in this case. On April 24, 1985, Beverage Investigator Frank Oliva drove his automobile to the front of the premises of Sweet's Lounge. He was approached by a male who asked what he wanted, and Oliva responded that he wanted "Boy," a street name for heroin. The male answered that he did not have any. Another male approached Oliva, who again indicated that he wanted some "Boy". Oliva observed the male enter the premises of Sweet's Lounge. Beverage Investigator Alphonso Junious was inside the licensed premises of Sweet's Lounge and observed the entire transaction with Oliva. He observed the male enter the premises of Sweet's Lounge and approach a female patron known as Ramona, who handed the male a tinfoil package. The male returned to Investigator Oliva and exchanged the tinfoil package for $20.00. The male then reentered Sweet's Lounge and gave the $20.00 to Ramona. The substance alleged to be heroin was laboratory analyzed to contain no controlled substances. On April 25, 1985, Beverage Investigator Frank Oliva returned to the front of the premises of Sweet's Lounge. He discussed the purchase of some "Boy" from an individual named William Rainey. Rainey went inside the premises of Sweet's Lounge and returned with a tinfoil package which he delivered to Oliva in exchange for $20.00. The substance alleged to be heroin was laboratory analyzed to contain no controlled substances. On April 25, 1985, Investigator Junious returned to the premises of Sweet's Lounge. The on-duty barmaid, Beatrice, left the premises for a short time and asked a female, later identified as the barmaid Linda, who was sitting at the end of the bar counter smoking a marijuana cigarette, to watch the bar until Beatrice returned. Beatrice said nothing to Linda about the marijuana cigarette. Linda walked behind the bar and continued smoking the marijuana cigarette while performing bartending duties. When Beatrice re-entered the premises, Ramona was standing in the doorway handing a tinfoil package to a male in the view of Beatrice. Junious entered into conversation with Ramona and, during the conversation, Ramona delivered a small tinfoil package to an unknown male patron. Investigator Reylius Thompson was also inside the premises of Sweet's Lounge on April 25, 1985. He observed several patrons smoking marijuana cigarettes, which he was able to identify through their appearance, smell, and the manner of smoking. On May 1, 1985, Investigators Junious and Thompson returned to the licensed premises of Sweet's Lounge. They observed the bartender Beatrice seated at the bar counter with two male patrons who were smoking a marijuana cigarette. After the bartender Linda came on duty, the officers observed her remove a marijuana cigarette from her purse and begin to smoke it behind the bar counter. Junious asked Linda for change for a $20.00 bill so he could buy cocaine. Linda asked what Junious wanted, and he told her a $10.00 piece of cocaine. Linda removed a tinfoil package of cocaine from her purse behind the counter and sold the cocaine to Junious for $10.00. While Investigator Thompson was seated at the bar on May 1, 1985, he also asked Linda for some cocaine. Linda again removed a tinfoil package of cocaine from her purse and delivered it to Thompson in exchange for $10.00. On May 3, 1985, Investigators Junious and Thompson returned to the licensed premises of Sweet's Lounge. While Beatrice was bartender, Junious observed several patrons smoking marijuana cigarettes. After Linda came on duty, Junious asked to purchase $10.00 piece of cocaine from her. Linda requested Beatrice to hand her her purse, from which she removed a tinfoil package of cocaine. Junious observed a plastic bag containing numerous tinfoil packages inside of Linda's purse. Linda sold the package of cocaine to Junious for $10.00 While Investigator Thompson was sitting at the bar on May 3, 1985, he asked Linda for some cocaine. Linda asked Beatrice to pass her purse to her from behind the bar. Beatrice handed the purse to Linda and Linda took out a tinfoil package of cocaine which she sold to Thompson for $10.00 On May 8, 1985, Investigators Junious and Thompson returned to Sweet's Lounge. While the investigators were seated at the bar counter, they observed three male patrons also seated at the bar counter smoking a marijuana cigarette in the presence of Beatrice, the bartender. After Linda came on duty, Junious asked her for a $10.00 piece of cocaine. Linda removed her purse from behind the bar, removed a tinfoil package of cocaine from her purse, and sold the cocaine to Junious for $10.00. Later that evening, Thompson asked bartender Linda for a $10.00 piece of cocaine. She again removed a tinfoil packet containing cocaine from her purse and sold the cocaine to Thompson. ll. On May 10, 1985, Investigators Junious, Thompson and McKeithen went to Sweet's Lounge. Junious asked the bartender Linda for $10.00 worth of cocaine, and she replied that she only had rocks. Junious agreed to purchase the rocks and received a tinfoil package of cocaine from Linda, which she had removed from her purse behind the bar. Later that same evening, Investigator Thompson also asked Linda for $10.00 worth of cocaine. She removed from her purse a tinfoil package containing cocaine which she sold to Thompson for $10.00. That same evening Investigator Thompson observed a male disc jockey smoking marijuana in the presence of patrons and passing the marijuana cigarette to some of the patrons. On May 14, 1985, Investigators Thompson and McKeithen returned to Sweet's Lounge. Thompson observed four patrons seated at a table cutting a white powder and snorting it from the top of the table. He also observed Ramona and a male patron, while seated at the bar, snort a white powder through an empty cigarette paper tube in view of the bartender Beatrice. On May 15, 1985, Investigators Junious and Thompson returned to Sweet's Lounge. Junious asked the bartender Linda if she had any cocaine, and she responded that she did but Junious would have to wait until she served a customer. After serving a customer, Linda sold Junious a small tinfoil package containing cocaine for 510.00. Junious also observed several patrons smoking marijuana cigarettes, sniffing white powder, and removing tobacco from regular cigarettes, inserting white powder into the cigarettes, and smoking same. On that same date, Investigator Thompson also asked Linda for cocaine. She replied that she had rock or powder cocaine and Thompson ordered rock. Linda walked into the package store portion of the lounge and returned shortly to Thompson, handing him a tinfoil package containing a small rock of cocaine in exchange for $10.00. On that same date Thompson observed Ramona using an empty cigarette paper tube to snort a white powder. On May 22, 1985, Investigators Junious and Thompson entered the licensed premises of Sweet's Lounge. The officers observed patrons seated at the bar counter smoking a marijuana cigarette in the presence of bartender Beatrice. The officers also observed Ramona seated at a table with several male patrons, all of whom were snorting a white powder from the table top and smoking a white powder in cigarettes. On May 29, 1985, Investigator Thompson returned to Sweet's Lounge. He observed Linda smoking a marijuana cigarette behind the bar counter and observed Ramona sitting on the west side of the premises with a quantity of white powder on the table. Thompson approached Ramona, sat down next to her, and began to talk to her about cocaine. While Thompson was seated with Ramona another female patron smoked a marijuana cigarette. Later that same evening, Thompson asked bartender Linda for cocaine and she responded that she had rock or powder. He ordered powder and Linda removed a tinfoil package of cocaine from her purse, which she sold to Thompson for $10.00. On the majority of the occasions described above when the investigators were inside the premises of Sweet's Lounge, there was a pervasive odor of marijuana smoke throughout the entire premises. The white powder which was being sniffed by patrons on the licensed premises at the various times described above was cocaine. In brief summary, the following relevant events took place at the licensed premises during the period of the investigation: 4/24/85: A patron participated in sale of a counterfeit controlled substance. 4/25/85: A patron participated in sale of a counterfeit controlled substance, an employee smoked a marijuana cigarette while on duty, and a patron delivered two small tinfoil packages to other patrons, and several patrons smoked marijuana cigarettes. 5/01/85: Two patrons smoked a marijuana cigarette, an employee smoked a marijuana cigarette while on duty, and an employee made two sales of cocaine. 5/03/85: Several patrons smoked marijuana cigarettes, and an employee made two sales of cocaine. 5/08/85: Three patrons smoked marijuana cigarettes in immediate presence of an employee, and an employee made two sales of cocaine. 5/10/85: A disc jockey smoked marijuana and shared it with patrons, and an employee made two sales of cocaine. 5/14/85: Six patrons sniffed cocaine; two did so in immediate presence of an employee. 5/15/85: Several patrons smoked marijuana and sniffed cocaine, and an employee made two sales of cocaine. 5/22/85: Several patrons smoked marijuana cigarettes in the immediate presence of an employee and several patrons sniffed cocaine. 5/24/85: A patron had cocaine in open view on a table, a patron smoked a marijuana cigarette, an employee on duty smoked a marijuana cigarette, and an employee made one sale of cocaine. Mr. Ebbie Sweet was never on the licensed premises on any of the occasions described above when the investigators were on the licensed premises. At all times material to this case, Mr. Andrew Johnson has been the manager of Sweet's Lounge. The owner, Mr. Ebbie Sweet, has given the manager various instructions about the operation of the premises. The instructions include: (a) keep the premises clean, (b) keep drugs out of the premises, (c) tell all employees to do the same, (d) put up signs about what can and cannot be done on the premises [including a sign reading "No Drugs Allowed"], (e) post the DABT flyer, and (f) put a "no loitering" sign outside the premises. The "no loitering" sign has not worked very well. When Mr. Andrew Johnson is on the premises he spends most of his time in the package store portion of the premises and very little of his time in the bar portion. On one occasion prior to the events described above, the Dania Police Department told Mr. Andrew Johnson there was a drug problem in Sweet's Lounge. He told them to come in anytime they wanted to and to arrest anyone they wanted to. Mr. Johnson did not change any procedures at Sweet's Lounge after the Dania Police Department told him about drug problems. Mr. Andrew Johnson knows Ramona. He has never seen her buy or use drugs, but he has heard that she is suspected of being a drug user. Ramona was a frequent visitor at Sweet's Lounge. Mr. Ebbie Sweet is the president of and the principal functionary of Sweet's Lounge, Inc. A sister and a nephew of Mr. Sweet also have some nominal connection to the corporation, but neither of them is active in running the licensed business. Mr. Ebbie Sweet enjoys an excellent reputation in his community. He is active in community affairs and has engaged in various charitable activities for the betterment of his community. It has always been his desire to run a reputable business and if he had known what was going on inside the lounge he would have fired those involved and would have closed the place up himself. In sum: Mr. Ebbie Sweet appears to be a good citizen who was trying to do the right thing. Unfortunately, for both him and the community, he wasn't trying quite hard enough. Some time ago Mr. Ebbie Sweet's wife passed away. As a result of that misfortune Mr. Sweet slowed down a lot and became less active in many things, including the amount of time and energy he devoted to the licensed business. He had at one time visited the licensed premises on a regular basis, but during the past ten months he only made a couple of trips a month to the licensed premises, and those were primarily to check on the inventory. During the past ten months he has hardly ever visited the licensed premises after dark. Mr. Sweet was relying on Mr. Andrew Johnson to manage things for him at the licensed premises even though he knew that Mr. Johnson was not the most reliable of managers. As Mr. Sweet put it, Mr. Johnson "has a few faults." Some years ago Mr. Sweet had an alcoholic beverage quota license which permitted him to sell all types of alcoholic beverages at Sweet's Lounge. When he had that license he had written instructions for his employees, he had doormen, and he had security guards. Since he sold the quota license and obtained his present license (which is limited to beer and wine sales), he has not had written instructions for his employees, he has not had doormen, and he has not had security guards. Mr. Sweet does not perform polygraph examinations or background checks on his employees. He has thought about hiring undercover people to patrol the premises, but has never done anything about it. The area of town in which Sweet's Lounge is located is one in which controlled substances are readily obtainable. Sweet's Lounge has had a recurring problem with undesirable people loitering in front of the lounge, people Mr. Sweet described as "hoodlums." All of the employees who worked in the bar portion of the licensed premises knew that marijuana and cocaine were being used by patrons inside the licensed premises on a regular, frequent, and flagrant basis. None of the employees took any action to prevent, discourage, or terminate the use of controlled substances by patrons. The foregoing findings of fact include the majority of the findings of fact proposed by the Petitioner. They do not, however, include any proposed findings based solely on the testimony of Investigator McKeithen. Some of the proposed findings based on McKeithen's testimony are irrelevant to the disposition of this case. Other proposed findings based solely on McKeithen's testimony are rejected because much of her testimony was neither persuasive nor convincing. While I have no doubts at all about her candor, honesty, or integrity, I have certain doubts about her attention to detail and her ability to recall and describe with accuracy events that took place in her presence. In making the finding that the employees who worked in the bar portion of the licensed premises were aware of the extensive use of drugs by patrons, I have not overlooked the testimony of the employees denying such knowledge. I find the denials to be unworthy of belief in light of all the other evidence in the record.
Recommendation For all of the foregoing reasons it is recommended that the Director of the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking alcoholic beverage license number 16-350, series 2-COP issued to Sweet's Lounge, Inc., for the premises located at 706-710 Northwest First Street, Dania, Florida. DONE AND ORDERED this 16th day of August, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 16th day of August, 1985. COPIES FURNISHED: Louisa Hargrett, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Chesley V. Morton, Esquire 604 Southeast Sixth Avenue Ft. Lauderdale, Florida 33301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr. Secretary The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
The Issue This case concerns an Administrative Complaint filed by the Petitioner against the Respondent. Count I to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its director, stockholder or corporate officer, namely: Carl Bilotti, related to the possession, sale and/or delivery of the controlled substance cocaine on July 15 and 18, 1981; August 20, 1981; and September 9 and 20, 1981. Count II to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee namely: "Anne," related to the possession of the controlled substance cocaine on August 22 and 28, 1981. Count III to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Anne," related to the possession, sale and/or delivery of the controlled substance cocaine on August 23, 1981, and September 4, 1981. Count IV to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Sandy," related to the possession, sale and/or delivery of the controlled substance methaqualone on July 19 and 25, 1981, and the possession, sale and/or delivery of the controlled substance cocaine on August 14, 22 and 23, 1981. Count V to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Eve," related to the possession, sale and/or delivery of the controlled substance diazepam on July 23, 1981. Count VI to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Gina," related to the possession, sale and/or delivery of the controlled substance diazepam on July 25, 1981, two (2) incidents. Count VII to the Administrative Complaint accuses the Respondent of violations of Sections893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Ivy " related to the possession, sale and/or delivery of the controlled substance cocaine on August 14, 1981. Count VIII to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Shayne," related to the possession, sale and/or delivery of the controlled substance cocaine on July 25, 1981. Count IX to the Administrative Complaint alleges that between July 15, 1981, and October 2, 1981, the Respondent, by actions of its agents, servants, employees, manager, corporate officer and stockholder, maintained a place, to wit: the licensed premises, at 2095 best Fourth Avenue, Hialeah, Florida, which place was used for keeping or selling of controlled substances, namely: cocaine, methaqualone and diazepam, in violation of Subsection 893.13(2)(a) 5; Florida Statutes, within the meaning of Subsection 561.29(1)(c), Florida Statutes. Count X to the Administrative Complaint alleges that between July 15, 1981, and October 2, 1981, the Respondent, through its agents, servants, employees, manager, corporate officer and stockholder, kept or maintained a public nuisance on the licensed premises, to wit: maintaining a building or place which is used for the illegal keeping, selling or delivering of controlled substances within the meaning of Chapter 893, Florida Statutes, in violation of Section 823.10, Florida Statutes, and Subsection 561.29(1)(c) , Florida Statutes. Count XI to the Administrative Complaint alleges that on or about July 25, 1981, an agent, servant or employee of the Respondent, one Gina, while engaged as a dancer, unlawfully offered to commit prostitution, in violation of Subsection 796.07(3)(a), Florida Statutes, causing a violation on the part of the Respondent of Subsection 561.29(1)(a), Florida .Statutes. Count XII to the Administrative Complaint alleges that on or about October 2, 1981, an agent, servant or employee of the Respondent, namely: Cathryne Edmondson, possessed a controlled substance, to wit: marijuana, on the licensed premises, in violation of Subsection 893.13(1)(a) Florida Statutes, causing a violation of Subsection 561.29 (1)(a) , Florida Statutes. Count XIII to the Administrative Complaint alleges that on or about December 2, 1981, a director, stockholder or corporate officer, namely: Carl Bilotti, corporate vice-president and 50 percent stockholder, pled guilty and was adjudicated guilty in the Circuit Court of the State of Florida, Eleventh Judicial Circuit, on five (5) counts of violation of Section 893.13, Florida Statutes, sale of controlled substances, namely: cocaine, a felony, and that the felony conviction impairs qualifications of the Respondent to obtain and continue holding an alcoholic beverage license under Subsection 561.15(3), Florida Statutes, and Subsection 56l.29(1)(b), Florida Statutes.
Findings Of Fact The Petitioner had served an Administrative Complaint on the Respondent, which Administrative Complaint contained the Counts as set forth in the Issues statement to this Recommended Order. Subsequent to that time, the Respondent, in the person of counsel, requested a formal Subsection 120.57 (1), Florida Statutes, hearing and the formal hearing was conducted on January 6, 1982. As indicated by correspondence from former counsel for the Respondent to counsel for the Petitioner dated December 15, 1901, Respondent's counsel withdrew from the case. This withdrawal of counsel postdated a Notice of Hearing setting forth January 6, 1982, as the date for hearing and a separate Order of November 24, 1981, which identified January 6, 1982, a the date for hearing. Notwithstanding the Notice and separate Order identifying January 6, 1982, as the hearing date, the Respondent, by and through its attorney or other authorized representative, did not attend the formal hearing. Although the Respondent was not in attendance, the hearing was conducted in view of the continuing request for hearing, which has never been withdrawn. The Petitioner is a governmental agency in the State of Florida, which has, among other duties, the licensure of the several alcoholic beverage license holders in the State of Florida, and the requirement to discipline those beverage license holders who have violated the terms and conditions of their licensure. The Respondent Carl and Mike, Inc., is the holder of an alcoholic beverage license issued by the Petitioner. The Respondent trades as the Raw Hide Bar at a licensed premises at 2095 West Fourth Avenue, Hialeah, Dade County, Florida. On July 15, 1981, at approximately 9:45 P.M., Beverage Officer L. J. Terminello, and a confidential informant, who was assisting Officer Terminello, entered the licensed premises in undercover capacities to continue an investigation which had begun on July 12, 1981. (The Beverage Officer and confidential informant had been in the licensed premises on that former date for purposes of conducting a narcotics investigation.) On this occasion, the investigative purpose was to purchase narcotics. Terminello and the informant took a seat at the bar and waited for the appearance of Carl N. Bilotti, the vice-president of the Respondent and 50 shareholder. It was the intention of Terminello to attempt to purchase narcotics from Bilotti. At 10:50 P.M. Bilotti had not arrived at the licensed premises and Terminello decided to leave; however, when he reached the front door, Bilotti was entering and Bilotti spoke to the confidential informant in the parking lot area of the licensed premises. The confidential informant, in the course of that conversation, asked Bilotti if, "we could get any coke," meaning Terminello and the confidential informant were interested in purchasing cocaine. Bilotti responded by stating, "Sure, no problem. Wait here a minute, I'll be right back." Bilotti then entered the licensed premises and returned a few minutes later and handed the confidential informant a piece of aluminum foil which was folded and the confidential informant handed this item to Terminello. Terminello opened the package and noted a quantity of white powder. Terminello asked Bilotti, "how much" and Bilotti stated, "anything close to $70.00." Terminello paid Bilotti $70.00 in United States currency and following a short conversation, departed the area of the licensed premises. The white powder in question was in fact cocaine. Terminello and the confidential informant returned to the licensed premises on July 18, 1981, at approximately 12:15 A.M. Terminello approached Carl Bilotti who was standing at the end of the bar area next to a cash register. Terminello asked Bilotti if he had any "stuff," referring to cocaine. Bilotti answered "sure" and indicated that the cost for the cocaine would be $70.00. Terminello agreed to the price, telling Bilotti that he would meet him in the mens room for purposes of the exchange of drugs and money. At approximately 12:20 A.M., while located in the mens rest room of the licensed premises, Terminello paid Bilotti $70.00 in United States currency and Bilotti gave Terminello a folded piece of white paper which Terminello could see contained white powder. Shortly thereafter, Terminello and the confidential informant exited the licensed premises. The white powder which had been purchased was analyzed and revealed the presence of cocaine. On July 19, 1981, at around 11:00 P.M., Officer Terminello returned to the licensed premises. While in the licensed premises he spoke with Sandra McQuire, a person that he had met on July 12, 1981. On July 12, 1981, McQuire had been employed as a cocktail waitress on the licensed premises and Terminello had been advised by the confidential informant that McQuire had delivered ten (10) methaqualone tablets to the confidential informant on that date. On that date, July 19, 1981, Terminello told employee McQuire that he wanted to purchase ten (10) more "ludes, meaning methaqualone. At around 11:20 P.M., while Terminello was sitting at the bar, McQuire walked by and handed him a napkin containing ten (10) white tablets. A few minutes later, Terminello handed McQuire $30.00 in U.S. currency in payment for the white tablets. Terminello then left the licensed premises at approximately 11:40 P.M. The ten (10) tablets were subsequently analyzed and found to be methaqualone. On July 23, 1981, at approximately 12:30 A.M., Officer Terminello and the confidential informant entered the licensed premises. Terminello and the confidential informant took a seat at the bar, where shortly afterwards a conversation ensued with an employee/dancer who identified herself as "Eve" and was later determined to be one Eve Mary Carroll. Carroll and the confidential informant had been acquainted prior to this time. During the course of the conversation, Terminello asked Carroll if she knew where he could get some "good ludes." This refers again to methaqualone. Carroll told him that she was "holding," meaning that she had some in her possession. She asked Terminello to pay her $4.00 for each tablet. She stated that the price was higher because they were "pure methaqualone tablets" and that they would "really do a job." Terminello told Carroll that he would purchase three (3) tablets and handed her $12.00 in U.S. currency. A few moments beyond this time, at around 12:45 A.M., Carroll handed Terminello three (3) tablets, each individually wrapped in aluminum foil, which tablets Terminello placed in his pocket. The suspect methaqualone tablets were later determined to be diazepam. On the same date, July 23, 1981, Terminello observed Carl Bilotti enter the licensed premises at around 1:00 A.M. In the course of a conversation that ensued, Bilotti told Terminello he could sell Terminello some cocaine, but that the transaction would have to occur later, in that Bilotti had to leave the licensed premises. Terminello waited until 2:30 A.M. and Bilotti never returned. On July 25, 1981, at approximately 12:00 A.M., Terminello and the confidential informant went back to the licensed premises. Over the next hour and a half, Terminello talked to Carl Bilotti and employee Sandra McQuire about purchasing narcotics; however, neither of those persons were able to deliver narcotics at that time. On that same date, Terminello and the confidential informant did speak with a dancer/employee in the licensed premises who was identified as "Gina" and this individual indicated that she had some "ludes" for sale, meaning methaqualone, that she would sell for $3.00 each. Terminello indicated that he would like to purchase five (5) tablets and they walked out the front door of the premises and Terminello gave her $15.00 in U.S. currency, in return for five (5) white tablets which were marked "Lemon 714." Those tablets were subsequently analyzed and found to be diazepam. At around 2:45 A.M. on July 25, 1981, while in the bar area, Terminello and the confidential informant spoke to an individual, a male, who was known as "Frenchie" later identified to be one Laurent E. Duval, who was in the company of a dancer employed in the licensed premises whose name was "Shayne" later identified to be Sharon K. Hicks. In the presence of Hicks, Terminello and Duval negotiated for the sale of a quantity of cocaine for the amount of $75.00. Duval also indicated that he had to be careful because he had a stolen car, was carrying a firearm and had recently been placed on probation by Circuit Court for narcotics and firearms charges. Duval told Terminello that the narcotics arrangement would have to be consummated in the parking lot of the licensed premises in view of the fact that too many people he did not know were in the bar. Terminello and the confidential informant exited the licensed premises at around 3:00 A.M. in the company of Duval and Hicks. Duval took a seat on the driver's side of an automobile in the parking lot and Hicks sat in the front passenger side seat. Duval handed Terminello a large plastic bag. containing a quantity of white powder which was suspect cocaine. Terminello started to hand Duval $75.00 in U.S. currency but Duval refused to take it, telling Terminello to hand the money to Hicks. Hicks had been observing this transaction and agreed to take the money and did accept the $75.00 in U.S. currency. The suspected cocaine was later revealed to be cocaine. Terminello next returned to the licensed premises on July 25, 1981, at around 9:30 P.M. At that time he was in the presence of the confidential informant. Terminello and the confidential informant took a seat at the bar and were approached by a dancer/employee who had earlier been identified as "Gina." There had been a prior telephone negotiation between the confidential informant and "Gina" for the purchase of five (5) "ludes," methaqualone, and in keeping with that arrangement, "Gina" handed Terminello a white napkin which contained five (5) white tablets. Terminello in turn gave "Gina" $15.00 in U.S. currency. Those tablets were subsequently analyzed and found to be diazepam. On the same evening, i.e., July 25, 1981, at around 9:45 P.M., the cocktail waitress, Sandra McQuire, approached Terminello and stated that she had five (5) methaqualone tablets that Terminello had asked for on the prior evening. She handed him a zip-lock plastic bag containing five (5) white tablets marked "Lemon 714." Shortly after this time, Terminello gave McQuire $15.00 in U.S. currency to pay for the tablets. Those tablets were subsequently analyzed and found to be methaqualone. At around 10:15 P.M. on July 25, 1981, the dancer/ employee "Gina" approached Terminello while he was seated at the bar and advised him that if he "got rid of" his "old lady" and returned about 4:00 A.M. to the premises that she, "Gina," would show him a good time by "fucking his brain out" for $50.00. Terminello acknowledged this offer. On August 3, 1981, at approximately 10:30 P.M., Terminello and the confidential informant returned to the licensed premises. At that time, Terminello entered into a conversation with Carl Bilotti on the subject of narcotics; however, Bilotti indicated that he was unable to procure cocaine at that time. Bilotti did state that he expected a delivery soon and that Terminello should wait a while. Nothing had transpired by 11:45 P.M. concerning the narcotics and Terminello and the confidential informant left the licensed premises. On August 14, 1981, at approximately 10:45 P.M., Terminello and the confidential informant went back to the licensed premises and upon entry took a seat at the bar where they were greeted by the cocktail waitress Sandra McQuire. Terminello asked McQuire if there were any "ludes" around, meaning methaqualone, and McQuire answered in the negative, but she did indicate that there was some "toot," meaning cocaine available for $70.00 a gram if Terminello was interested. Terminello advised McQuire that he was interested and removed $70.. 00 in U.S. currency from his wallet, wrapped it in a napkin and handed it to McQuire. She then stated that she would be back in a few moments. After several moments, McQuire signaled Terminello to walk over to the opposite side of the bar where she was fixing drinks. She then made a comment about the good quality of the "stuff." While Terminello was talking to McQuire, another employee, a dancer in the licensed premises identified as "Ivy" later shown to be one Julie Ann Schwartz, approached Terminello and handed him a plastic zip- lock bag containing white powder. She told Terminello "here is a present from Sandy." Terminello accepted the material. Schwartz then asked Terminello if she could "do a line," referring to the ingestion of cocaine. In view of the circumstances, Terminello did allow Schwartz to taste the cocaine. Schwartz did this by opening the packet in plain view at the bar area and placing her finger into the container and then tasting the substance that adhered to her finger. She then handed the plastic bag back to Terminello and said "you are going to enjoy this. That's good stuff." These matters transpired in the presence of McQuire. The white powder was subsequently analyzed and revealed to be cocaine. On August 22, 1981, at approximately 11:00 P.M., Terminello returned to the licensed premises. Upon entry to the licensed premises, Terminello was greeted by Carl Bilotti who appeared to be leaving the bar at that time. Bilotti told Terminello he could be back in about one hour if Terminello wanted to wait for purposes of purchasing cocaine. Terminello told him he would wait. Following his conversation with Bilotti, Terminello spoke with the cocktail waitress Sandra McQuire asking her if there was any "toot" around, meaning cocaine. McQuire indicated that there was and it would cost $70.00. Terminello followed McQuire into the hallway outside the ladies' room where he handed her a hundred dollar bill and she handed him a plastic wrapped package containing white powder. A few minutes later, Terminello was sitting at the bar when McQuire returned and laid $30.00 in U.S. currency before Terminello stating "thank you very much." This material in the plastic bag which had been provided to Terminello by McQuire was subsequently determined to be cocaine. Terminello was still in the bar area at around 12:30 A.M. on August 23, 1981, and entered into a conversation with the manager of the licensed premises identified a "Anne" later shown to be Anne R. Milotta, also known as Ann Bilotti, the sister of Carl Bilotti. Terminello told Milotta that he felt that her brother Carl Bilotti was inconsiderate in that Terminello had planned to purchase cocaine from Bilotti that night and Bilotti had not come back to the premises. Milotta agreed with Terminello and told him that he could sit in the manager's office with her to have a drink and to wait for her brother to return. Milotta and Terminello went to the manager's office. While in that office, ,Milotta answered the telephone, gave directions to employees, answered questions, was observed to have the keys to the office, and at times was seen tending bar. These managerial activities were further substantiated on a later date based upon Terminello's procurement of a copy of an application which Milotta had made with the City of Hialeah, Florida, for an identification card in which she had listed herself as the "owner-manager of the licensed premises." While in the office with Milotta, she told Terminello that it was too bad that her brother had not yet come back so that Terminello could purchase cocaine. Terminello, during this conversation, indicated to Milotta that he had purchased cocaine from Sandy McQuire, the cocktail waitress, and Milotta stated to Terminello "how 'bout turning me on to a line" and Terminello responded "OK." Terminello removed the cocaine he had received from McQuire and handed it to Milotta. She opened it and tapped out two one and one half inch long "lines" of cocaine on the desk in the office and handed the package back to Terminello. Terminello then watched Milotta ingest one of the lines through her nose using a plastic straw and he in turn simulated that activity. At around 1:15 A.M., on August 23, 1981, Terminello indicated to Milotta that, in view of the fact that Carl Bilotti was not going to appear, he would like to purchase another gram of cocaine to keep him supplied for the upcoming week. Milotta stated she would get McQuire and exited the office and called McQuire in, telling her that Terminello wanted to purchase another gram of cocaine. McQuire indicated that this would not be a problem and removed another packet similar to the first from a large plastic bag she kept on her person. This large bag appeared to have twenty (20) to thirty (30) similar type packets within it. Terminello removed a hundred dollar bill from his wallet and handed it to Milotta who in turn handed it to McQuire. McQuire then reached over Milotta and handed Terminello the packet. Shortly after this exchange, McQuire left the office and Milotta continued in general conversation both in the bar and office area until Terminello left the premises at approximately 1:50 A.M. The second package that McQuire gave to Terminello was subsequently determined to be cocaine. On August 28, 1981, at approximately 10:30 A.M., Terminello went back to the licensed premises to continue the investigation. Upon entering the licensed premises he spoke with Carl Bilotti asking if he had any "toot," meaning cocaine. Bilotti stated that he did and that it would be the same price as usual, $70.00. A few minutes later, Bilotti walked up to Terminello who was sitting at the bar and handed him a plastic zip-lock bag containing white powder and Terminello gave him $70.00 in U.S. currency in exchange. The substance which Terminello had purchased from Bilotti was subsequently determined to be cocaine. A few minutes after the exchange of cocaine and currency, Anne Milotta approached Terminello in the bar area and invited him into the manager's office for a drink. When they entered the office, Milotta told Terminello that she had seen the transaction involving the sale of cocaine between Terminello and her brother and wanted to make sure that Terminello was satisfied with the "product." The conversation continued while Milotta intended her managerial duties of making schedules, and answering the telephone. At approximately 11:00 P.M., Milotta asked Terminello if she could "do a line" of his cocaine, meaning use the material. She indicated that she knew "this coke was as good as all the coke that Carl gets." Terminello complied with her request by handing her the plastic zip-lock bag that he had purchased from Carl Bilotti. She again placed two (2) "lines" of the cocaine on the desk and on this occasion used a twenty dollar bill which had been rolled up as a tool to ingest the cocaine in her nose. Terminello simulated the use of cocaine in her presence. Terminello then left the office and exited the licensed premises. On September 4, 1981, at approximately 9:30 P.M., Terminello went back to the licensed premises. When he entered the premises he spoke with Anne Milotta asking her if her brother had "any shit to sell," referring to cocaine. Milotta invited Terminello into her office indicating that her brother did not have cocaine for sale but that she did. Terminello told her that he wanted one (1) gram. She left the office and returned a few minutes later, at around 9:50 P.M., handing Terminello a piece of plastic wrapping containing white powder. Terminello handed her 580.00 in U.S. currency and she returned $5.00, stating that her price was $75.00. Subsequent analysis of the material which he had received from Milotta revealed the presence of cocaine. While in the office area, Milotta continued to perform managerial duties. As Terminello was preparing to leave the licensed premises on this date, Milotta approached him and gave him an additional $5.00 in U.S. currency stating that she had made a mistake and that a gram should only be $70.00 and that she did not want Terminello to think that she was "ripping him off." This discussion of money referred to the purchase of cocaine. On September 9, 1981, at around 10:10 P.M., Terminello went back to the licensed premises. He took a seat at the bar and waited for the appearance of Carl Bilotti. Bilotti entered the licensed premises at around 10:25 P.M. and Terminello asked him if he was "holding any shit," referring to cocaine. Bilotti stated that he was and that it was the usual price of $70.00. Bilotti and Terminello then went to the manager's office. Bilotti left Terminello in that office, shortly thereafter and following this sequence, Terminello gave Bilotti $70.00 in U.S. currency while in the office in exchange for a white piece of paper folded in four parts which contained white, powder. The analysis of this white powder material revealed cocaine. Terminello and Bilotti stayed in the office for a few minutes discussing general topics and the possibility of a large narcotics purchase in the future. Bilotti told Terminello that he would be better off buying a quarter ounce of cocaine for $425.00 rather than one gram at a time for $70.00. Terminello then left the licensed premises at approximately 10:45 P.M. On September 20, 1901, at approximately 12:15 A.M., Terminello returned to the licensed premises. He undertook a conversation with Carl Bilotti while standing near the outside of the front door. After a short conversation, Bilotti indicated that he had cocaine for sale. A few minutes later while inside the licensed premises, Bilotti waved Terminello into the manager's office where he removed a quantity of white powder from a large plastic bag and placed a small quantity of white powder into a piece of paper on the desk. He then folded the piece of paper and handed it to Terminello who handed Bilotti 570.00 in U.S. currency. This white powder was subsequently determined to be cocaine. At approximately 1:00 A.M., Terminello left the licensed premises. On September 26, 1981, at approximately 12:20 A.M., Terminello, while in the licensed premises, entered into a discussion with Carl Bilotti about a narcotics transaction involving the purchase of cocaine. Bilotti indicated that two (2) ounces of cocaine could be purchased for $1,700.00 an ounce and he stated that the safest place for the transaction to occur would be in the office at the licensed premises. On September 29, 1981, at around 11:15 P.M., Terminello and Carl Bilotti, while in the office at the licensed premises, confirmed a future purchase of two (2) ounces of cocaine. Bilotti explained to Terminello the packaging and adulterating procedures to be used in connection with selling the cocaine. On October 2, 1981, at approximately 12:45 A.M., in the office of the licensed premises, Anne Milotta told Terminello that she was aware of the pending large transaction for the purchase of cocaine between Terminello and Carl Bilotti and that her understanding was that the purchase was to occur later that evening. She further stated that due to her brother's unreliability she would also guarantee that two (2) ounces of cocaine would be in the office by 7:00 P.M. on October 2, 1981. On October 2, 1981, a search was made of the licensed premises in connection with a warrant issued by the Dade County Circuit Court. The search warrant was read to Dorothy Bilotti, a principal in the beverage license. During the course of the search, Cathryne Edmondson, one of the dancer/employees was found in possession of marijuana. On December 2, 1981, Carl Bilotti entered a plea of guilty to five (5) counts of sale of cocaine and five (5) counts of possession of cocaine. He was subsequently adjudicated guilty of the sale of cocaine and adjudication was withheld on the counts of possession of cocaine. These matters were in connection with a court case in the Circuit Court, Dade County, Florida.
Findings Of Fact Respondent Mary L. Alexander holds beverage license No. 28-0041, Series 2-COP. Under this license she sells beer and wine at Whisper's Cafe, a business which she has owned and operated for approximately two years in Bunnell, Florida. (Testimony of respondent) Respondent employs a cook and a part-time bartender, who also serves as a disc jockey. The cook works primarily in the kitchen. At around 8:30 P.M., the bartender begins operating the juke box and remains in the dance area of the licensed premises, an area separated by a wall from the rest of the premises. Respondent (or a substitute bartender), works primarily in the bar and pool table area, which is located between the dining and dance areas of the premises. (Testimony of respondent) The evidence establishes, without contradiction, that two of respondent's bartenders committed three separate drug violations on the premises during April and May, 1982. Two violations involved bartender Ronney Locke, one involved bartender Fred Austin. I. Two Drug Violations by Bartender Locke On April 30, 1982, Maria Scruggs, a DABT Beverage Officer, entered Whisper's Cafe in an undercover capacity. Approximately twenty customers were on the premises--four or five were standing at the bar. Officer Scruggs ordered a drink at the bar. Several minutes later, Thomas Alexander, respondent's son, approached her and a conversation ensued. She asked him if he had any marijuana she could buy. He replied that he did not, and then referred the question to bartender Ronney Locke. Mr. Locke, offering to check around the bar, approached Clarence Lorick, a customer, who then delivered a small quantity of marijuana to Mr. Alexander for $5.00. Mr. Alexander, seated at the bar, rolled a marijuana (cannabis) cigarette in his lap and gave it to Officer Scruggs, who then left the premises. The cigarette was rolled in an open manner and in plain view of others on the premises. Respondent was not on the premises during this transaction and was unaware of its occurrence. (Testimony of Scruggs, respondent, P-1) On May 7, 1982, Officer Scruggs reentered the licensed premises in an undercover capacity. She began to talk, separately, with respondent and bartender Locke. She asked Mr. Locke if any cocaine or marijuana was available. He replied that he would check with the other customers for a $5.00 bag of marijuana. He approached Ginnie Lee Caskins a customer, Who then approached Officer Scruggs and handed her a manilla envelope containing marijuana (cannabis). Officer Scruggs said nothing and handed her $5.00. This exchange of money and marijuana took place under the bar and out of view of the other customers on the premises. Although respondent was on the premises, she was not close by and did not see the exchange or overhear the conversation. (Testimony of respondent, Scruggs, P-2) II. Drug Violation by Bartender Austin On May 12, 1982, Alphonso Junious, another DABT Beverage Officer, entered the licensed premises in an undercover capacity. He asked bartender Fred Austin, an employee of respondent, if he knew where he could buy some marijuana. Mr. Austin walked to the door and summoned Clarence Lorick, who then entered the premises. After a brief conversation, Mr. Lorick handed a small quantity of marijuana (cannabis) to Officer Junious, who, in turn, handed him $5.00. This exchange took place in a secretive manner and occurred after respondent had left the premises. She was also unaware of this drug transaction. (Testimony of Junious, respondent, P-3) III. Drug Violation by Respondent DABT also contends that on May 14, 1982, respondent unlawfully aided, counseled, or procured the sale or delivery of marijuana (cannabis) to Officer Junious. Respondent denies it. The evidence, although conflicting, substantiates DABT's contention. On May 14, 1982, Officer Junious reentered the licensed premises in an undercover capacity. He purchased a beer from respondent, who was tending bar. While seated at the bar, he overheard respondent tell an unidentified female patron that she (respondent) had been to a musical concert and had to leave to get something to smoke. Officer Junious, construing this to mean marijuana, said to her, "I could use something to smoke too," or words to that effect. Respondent replied, "Boot got some." (Testimony of Junious) Officer Junious knew who "Boot" (Henry Brown) was, having previously purchased marijuana from him in an undercover capacity. Officer Junious then left the premises, found "Boot" outside, and purchased a small quantity of marijuana (cannabis) from him for $5.00. (Testimony of Junious) These findings are based on the testimony of Officer Junious. Respondent denies that she said "Boot got some" or that she had any conversation with Officer Junious on May 14, 1982. She also denies that she said she could use something to smoke, and states that she does not smoke either tobacco or marijuana. Taking into account her bias and interest in the outcome of this proceeding, the testimony of Officer Junious is more credible and is accepted as persuasive. IV. Respondent's Supervision of the Premises Respondent, periodically, reminded her employees that no marijuana was allowed on the premises. She took no other action to ensure that drug violations would not occur on the premises. (Testimony of respondent On May 27, 1982, arrest warrants were executed by DABT and the licensed premises was searched. No illicit drugs were found on the premises. (Testimony of Scruggs) There is no evidence that marijuana has ever been smoked in the licensed premises. Neither does the evidence support a finding that respondent knew that marijuana had been, or was being, sold or delivered on the premises. The four separate drug violations committed on the licensed premises, and the manner in which they were committed, however, support a conclusion that these violations of law were fostered, condoned, or negligently overlooked by respondent, and they occurred, at least in part, due to respondent's failure to diligently supervise her employees.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license be suspended for a period of 90 days. DONE and ORDERED this 10th day of December,1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1982.
Findings Of Fact Victor Ingargiola is the sole shareholder, director and officer of Petitioner, I & H Enterprises, Inc., d/b/a Basin Street East (Petitioner), a Florida corporation. The State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, is the Respondent. Both Mr. Victor Ingargiola and his wife, Mrs. Barbara Ingargiola, entered the Division's double random selection drawing for eligibility to apply for a new quota alcoholic beverage license. Mr. Ingargiola was selected in the drawing, and Mrs. Ingargiola was not. After receiving notice of his selection in the drawing, Mr. Ingargiola formed the Petitioner and applied for licensure on or about November 1, 1984. In his application, Mr. Ingargiola did not identify his wife as a person having an interest in Petitioner or its business, either directly or indirectly. The application also represented that Petitioner had a right to occupancy of the premises to be licensed at 4513 Causeway Boulevard, Tampa, Florida. Petitioner's application carries with it an application fee of $6,750. Mr. Ingargiola obtained a portion of the funds necessary to pay the application fee from funds held jointly by him and his wife and by loans to him and his wife secured by property jointly held by him and his wife. Virtually all money and property of the Ingargiolas is held in their joint names. Both Mr. and Mrs. Ingargiola conferred with the Division's Investigator Miller concerning the application. Miller initially requested that Mrs. Ingargiola be finger printed as a person having an interest in the license to be issued. Mrs. Ingargiola understood that she was not permitted to have an interest since she herself had entered the double random selection drawing. She therefore declined to be fingerprinted or to be made to appear on the application as a party having an interest in the license to be issued. Investigator Miller also discussed with the Ingargiolas the question of Mrs. Ingargiola's involvement and the financing of Petitioner. Investigator Miller led the Ingargiolas to believe that the only possible legal financing arrangement would be for Mrs. Ingargiola to give the funds to her husband outright. He led them to believe that this could be done by affidavit, and Mrs. Ingargiola signed and filed an affidavit which Investigator Miller approved as to form. The affidavit listed the financing in question and stated: "I swear that the following funds obtained are to be used by Victor A. Ingargiola and I will have no interest or control over these funds." Barbara Ingargiola also testified at final hearing that she claims no interest whatsoever in Petitioner, any license to be issued to it, or the funds she gave outright to her husband to finance Petitioner. Essentially, Mrs. Ingargiola gave her half of the joint funds and proceeds of joint loans used by Victor Ingargiola to finance Petitioner's application fee. If necessary, she was prepared to do the same with the proceeds from the sale of joint real property or loans secured by the Ingargiolas' joint real property. However, no mention was made or consideration given to Mrs. Ingargiola's liability for her husband's share of the joint borrowing in addition to hers. Mrs. Ingargiola did have an interest in the successful operation of Petitioner so as to enable her husband to pay at least half, if not all, of the joint borrowing used in part to finance Petitioner. On or about October 12, 1984, Mr. Ingargiola obtained a written lease to the premises to be licensed. However, the lease does not contain a commencement date. At the time the application was filed, the premises were occupied by another tenant, and, as of December 20, 1984, this tenant had a legal right to occupy the premises and had not been notified of the pending liquor license application or the lease. In addition, the purported lease contains a provision requiring Petitioner to secure its duties and obligations under the lease by depositing with the landlord the sum of $60,000 in cash or irrevocable letter of credit. There was no evidence that Petitioner had complied with or could comply with this requirement of the lease. Although Mr. Ingargiola testified to his understanding of his right to occupancy of the premises under the lease upon granting of Petitioner's application and issuance of the license, there was no testimony from the landlord on the ambiguities surrounding the lease and the rights of the tenant in possession. As a result, the evidence as a whole was insufficient to prove Petitioner's right to occupancy of the premises to be licensed.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, deny the application of Petitioner, I & H Enterprises, Inc., d/b/a Basin Street East, for a quota alcoholic beverage license RECOMMENDED this 17th day of March, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1986. COPIES FURNISHED: Joseph L. Diaz, Esquire 2522 W. Kennedy Blvd. Tampa, FL 33609 Thomas A. Klein, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301-1927 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301 Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, revoke alcoholic beverage license number 23-1341, Series 2-COP, held by Maritza Garcia, d/b/a Maritza's Pub. RECOMMENDED this 23rd day of May, 1985 in Tallahassee, Florida. Hearings 1550 Hearings J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 FILED with the Clerk of the Division of Administrative this 23rd day of May, 1985.
The Issue Whether petitioner's application for a beverage license should be disapproved on the ground that he has been convicted of illegally dealing in narcotics within the last five years.
Findings Of Fact The facts of this case are simple and undisputed: Petitioner, Hurdee N. Weatherford ("petitioner") applied to the respondent, Division of Alcoholic Beverages and Tobacco ("Division"), for a 2- COP alcoholic beverage license to be issued under the name of Sutters Mill, 4345 North Atlantic Avenue, Cocoa Beach, Florida. (Testimony of Weatherford.) On October 22, 1981, the Division denied petitioner's application on grounds that he had been convicted of illegally dealing in narcotics within the last five years. Petitioner requested a hearing on the Division's denial and this proceeding followed. (Testimony of Weatherford; Stipulation of Counsel.) On May 20, 1980, petitioner pleaded nolo contendere to Attempted Sale of Controlled Substance, a violation of Section 893.13(1)(a)2, Florida Statutes (1979). The Circuit Court of Broward County accepted the plea and adjudged him guilty; he was fined $500 and sentenced to six months (suspended) in the county jail. (Petitioner's Exhibits 1, 2, and 3.)
Recommendation Based on the foregoing, it is RECOMMENDED: That petitioner's application for an alcoholic beverage license be denied. DONE AND RECOMMENDED this 3rd day of February, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1982.
The Issue The issue in this case is whether the Petitioner's application for an alcoholic beverage license should be granted or denied.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a Florida business man who operated initially a business called the International Coffee Shop and Minit Market, located at 1342 Washington Avenue, Miami Beach, Florida, and subsequently a business called Tony Cafeteria, located at 340 1/2 Northwest 12th Avenue, Miami, Florida. Petitioner was the holder of alcoholic beverage license number 23-8402, Series 1 APS, for the International Coffee Shop and Minit Market on Miami Beach. Respondent, on May 3, 1988, served on Petitioner an emergency order of suspension of license number 23-8402, series 1 APS, "in order to protect the public safety and welfare from immediate and continuing danger of drug trafficking and illegal delivery of controlled substances in and about the licensed premises." Concurrently with the emergency order of suspension, Respondent served a notice to show cause on Petitioner alleging eight counts of narcotics transactions on the licensed premises and one count of maintaining a nuisance of the licensed premises. Petitioner did not request a hearing on the charges that resulted in the emergency order of suspension and the notice to show cause. On June 27, 1988, Respondent published its Final Order revoking Petitioner's alcoholic beverage license number 23-8402, Series 1 APS. The Final Order was served on Petitioner on July 5, 1988. That Final Order included the following conclusion: The facts set forth hereinabove demonstrate that the licensee has fostered, condoned, and/or negligently overlooked trafficking in and use of illegal narcotics and controlled substances on or about the licensed premises and has failed to exercise due diligence in supervising its employees and managing its licensed premises so as to prevent the illegal trafficking and use of narcotics on the licensed premises. In addition to the narcotics violations described in the notice to show cause regarding the International Coffee Shop and Minit Market, alcoholic beverages were being sold for consumption on Petitioner's licensed premises, and patrons on the licensed premises were gambling on pool games. The International Coffee Shop and Minit Market was located near a large elementary school. The cocaine transactions negotiated and consummated on the licensed premises during April 1988 were open and in plain view. No effort was made to conceal these activities. Children were frequently on the licensed premises during April 1988 when cocaine transactions were being openly negotiated and consummated. The first cocaine transaction at the International Coffee Shop and Minit Market during Officer Santana's undercover investigation was between Officer Santana and a patron named Clara Rodriguez. The transaction took place just inside the entrance of the International Coffee Shop and Minit Market, lighting conditions were good, and no effort was made to conceal the transaction. Petitioner was standing immediately next to Officer Santana when the cocaine transaction took place. Petitioner made no effort to stop the transaction, or to summon law enforcement, or to evict Ms. Rodriguez or Officer Santana. Petitioner commented, in Spanish, that "if you're not going to eat or drink anything, you're going to have to leave," or words to that effect. During the 13 days following the cocaine transaction described immediately above, seven additional cocaine transactions were openly conducted on the premises of the International Coffee Shop and Minit Market:. Four of these transactions were permitted by Petitioner's employee Estella; three were permitted by Petitioner's employee Angel. Five patrons, Nuri, Pipo, Maria, Clara, and Betty, were involved in these cocaine transactions. Petitioner attributes the activity on his licensed premises that resulted in the license revocation to the undesirable neighborhood of the International Coffee Shop and Minit Market and the undesirable persons who frequented the International Coffee Shop. The neighborhood of Tony Cafeteria is no better than the International Coffee Shop neighborhood. In response to a complaint, Sergeant Herrera and other members of the Miami office of the Division of Alcoholic Beverages and Tobacco went to Tony Cafeteria on December 2, 1989. Petitioner's employee, Ms. Baez, sold a beer to an undercover Law Enforcement Investigator on the premises of Tony Cafeteria. Ms. Baez was cited for selling an alcoholic beverage without a license. Twenty cans and bottles of beer were seized on the premises by the officers. Petitioner works full time, 40 hours a week, at the Fountainbleau Hilton and is considered by the Head Houseman to be "a fine, dedicated worker." Three friends of Petitioner opined that Petitioner is a trustworthy, moral person. The Petitioner has never been arrested or convicted of any criminal offense. The Petitioner did not have actual knowledge of the narcotics transactions that resulted in the revocation of the alcoholic beverage license at the International Coffee Shop and Minit Market, nor was he aware that any gambling was taking place on the pool tables. In January 1990, Petitioner was issued a temporary beverage license for Tony Cafeteria, with which he operated until his license application was disapproved by Respondent. During the three-month period he operated with the temporary license he was not cited for violation of the beverage law.
Recommendation For all of the foregoing reasons, it is recommended that the Division of Alcoholic Beverages and Tobacco issue a final order in this case denying the Petitioner's application for a alcoholic beverage license. RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of July 1990. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July 1990. COPIES FURNISHED: Vidal Marino Velis, Esquire 2100 Coral Way, Suite #300 Miami, Florida 33145 John B. Fretwell, Esquire Assistant General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Joseph A. Sole General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007
The Issue Whether or not on or about October 31, 1975, the Respondents, Bossie Mae and Willie Mae Browdy, licensed under the beverage laws as a package store, and/or their agent, servant or employee, to wit: Bossie Mae Browdy did allow or permit the consumption of alcoholic beverages on their licensed premises, contrary to Rule 7A-3.05, Florida Administrative Code. Whether or not on or about November 1, 1975, the Respondents, Bossie Mae and Willie Mae Browdy, licensed under the beverage laws as Browdy's Mini Market with a 2-APS license to wit: Bossie Mae Browdy did allow gambling (card) on the licensed premises, contrary to Section 849.08, Florida Statutes and in violation of Section 561.29, Florida Statutes.
Findings Of Fact At present, and on October 31, 1975 and November 1, 1975, the Respondents, Bossie Mae and Willie Mae Browdy are and were the holders of a beverage license with the State of Florida, Division of Beverage number 69-299, 2-APS. On October 31, 1975, Eugene Fogel, a Division of Beverage enforcement officer entered the premises licensed by the State of Florida, Division of Beverage, which was operated by the Respondents at Avenue B on Chuluota Road, Oviedo, Florida. While in the store he observed an unknown black female consuming a beverage which was marked Millers High-Life. This consumption was taking place in the presence of the Respondent, Bossie Mae Browdy, and in the course of the consumption a conversation was taking place between the unknown black female and Bossie Mae Browdy. The bottle which Officer Fogel observed was marked with identifying information which the officer based upon his experience, felt indicated that it contained an alcoholic beverage. On November 1, 1975, officer Fogel returned to the licensed premises of the Respondents and entered into a card game in a porch like area which is immediately at the front of the store and connected to the store. This card game was between Fogel and several black males who were participating in a card game when he approached. The game took place over 45 minutes and money was exchanged at 25 cents a game for the winner, for a total amount of approximately $2.00. During the course of the game, Bossie Mae Browdy came to the door and looked out at the card game being played.
Recommendation It is recommended that the Respondents, Bossie Mae and Willie Mae Browdy, be fined in the amount of $100 for the offense as established through this administrative complaint. DONE and ENTERED this 24th day of November, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Curtis, Esquire Division of Beverage The Johns Building Tallahassee, Florida 32304 Carl Thompson, Esquire 25 South Magnolia Avenue Orlando, Florida 32801
