Findings Of Fact Respondent holds alcoholic beverage license no. 56-526, Series 2-COP. The licensed premises is known as the "Green Frog" and is located at 1216 Santa Rosa Boulevard, Fort Walton Beach, Florida. The corporate officers of Respondent are Charles J. Schoener, Marlene D. Schoener, Mitch M. Smith and Charles M. Hall. On September 27, 1983, Investigator Robert Randle of the Gulf Breeze Police Department was approached by two individuals as he exited the licensed premises of the Green Frog and was asked if he wanted to purchase some marijuana. While discussing the marijuana purchase, Randle was approached by the Green Frog doorman who was working on the premises that night. The doorman, known as "Animal," inquired of Randle if he wanted to buy a small quantity of cocaine and displayed a small plastic baggie containing a white substance which he offered to sell for $30. After paying the doorman $30 for the small package represented to be cocaine, Randle submitted the contents for chemical analysis. Subsequent analysis revealed the presence of no controlled substance. On or about February 18, 1984, Officer Randle again entered the licensed premises of the Green Frog in an undercover capacity. While on the licensed premises, Randle contacted a dancer known as "Angel." Randle asked Angel where he could obtain some narcotics and she directed him to her apartment. Randle went to the apartment but was unable to purchase any drugs. He returned to the Green Frog and told Angel that he had been unsuccessful. She left Randle's presence but later delivered a partial marijuana cigarette to him on the licensed premises. Subsequent analysis of the partial cigarette showed the contents to be cannabis/marijuana. On or about February 28, 1984, Officer Randle again entered the licensed premises in an undercover capacity. On this date, he made contact with a dancer known as "Sugar" and asked her if he could obtain some marijuana or cocaine. Sugar directed Randle to the dancer Angel's apartment where he was told he could purchase a baggie of marijuana. Upon reaching the apartment Officer Randle informed Angel that Sugar had told him he could buy a bag of marijuana from her. At this time Angel sold a baggie of marijuana to Officer Randle for $25. Subsequent analysis of the baggie's contents revealed that it contained cannabis/marijuana. On or about March 6, 1984, Officer Randle returned to the licensed premises as part of this investigation. Upon entering, Randle engaged the dancer Sugar in conversation and advised her he was looking for narcotics. Shortly thereafter, Sugar told Randle he could purchase one-quarter gram of cocaine for $25. Later, she informed him that she was obtaining the cocaine from another dancer who would only sell half-gram amounts for $50. Randle then gave Sugar $50 and observed Sugar leave his table, speak to an unidentified dancer and return to his table. Sugar then handed Randle a plastic baggie containing a white powdery substance. Subsequent analysis of the contents of the bag showed that it contained cocaine. On or about March 17, 1984, Officer Randle again entered the licensed premises as part of the ongoing investigation. Randle made contact with the dancer "Kelly" and the dancer "Lisa." Randle told Kelly that he had "scored" some good cocaine previously from the dancer Sugar and that he was looking for her. In response to this statement, Kelly informed Randle that she had supplied Sugar with the cocaine and that she could sell him a half-gram of cocaine for $50 that evening. Later, Randle was approached by the dancer Lisa who asked him if he was holding some cocaine. Randle informed her that he was looking for cocaine and asked her if she could sell him some. Lisa also told him that she was waiting for her supplier and that she would sell him a $50 package when the supplier arrived. While waiting for the supplier to arrive on the premises, Randle was again approached by Lisa who gave him the phone number of her supplier and suggested he call the supplier and tell him to come to the licensed premises with the cocaine. Later, a male patron arrived at the premises and was observed talking to Lisa by Randle. Shortly thereafter, both Lisa and Kelly delivered small plastic baggies containing white substances to Randle who was seated at a table. Both deliveries were made inside the lounge in plain view. Subsequent analysis confirmed that both packages contained cocaine. Beginning around late February 1984, Mr. Tim Forehand regularly sold and supplied cocaine on the licensed premises. His sales were generally in one- half gram packages and the dollar amount of such sales on the licensed premises ranged from $200 to $1800 per night. Forehand supplied the cocaine on March 17, 1984, to the dancers Lisa and Kelly who then sold this substance to Officer Randle. Forehand also sold cocaine six or eight times to a corporate officer's son, David Schoener, who worked as a bartender on the licensed premises. On one occasion, Charles Schoener barred Forehand from the licensed premises for dealing drugs. He was, however, allowed back onto the premises within one week, The testimony of Lisa Dixon, Melissa Crawford (a/k/a Sugar) and Tim Forehand indicated that drug use and sales in the licensed premises were open and extensive. Sugar testified that see had used cocaine with Charles Hall, an officer-owner, on the licensed premises. Similarly, Lisa Dixon testified that she was in the presence of Charles Schoener on an occasion when he used cocaine in the licensed premises. In their testimony, Charles Schoener and Charles Hall denied using drugs on the licensed premises. Their testimony and that of a third owner- manager, Mitch Smith, a bartender, Jim Ellis, and a dancer, Evangeline Potts, indicated that drug use and sales were rarely observed and that action was taken to bar customers or warn employees when such incidents occurred. The documentary evidence and testimony of both Petitioner's and Respondent's witnesses established that Respondent had a stated policy against drug use or possession on the premises. Employee rules to this effect had been adopted and posted for over a year and periodic employee meetings were held at which the no drug policy was discussed. However, enforcement was not vigorous as indicated by the fact that Forehand was allowed to return to the Green Frog even though he had earlier been barred for drug activity. Further, Charles Schoener, the corporation president, did not discharge the dancer Kelly, even when he suspected her of illegal drug activity on the licensed premises. Much of the testimony of the witnesses with the exception of Officer Randle and Officer Kiker (who was not directly involved), was self-serving and lacking in credibility. Forehand, Dixon and Crawford have all been arrested and charged with criminal offenses. They were advised that their cooperation in this proceeding could favorably effect their sentences if convicted. Respondent's witnesses are owners and employees of the licensed premises, and thus have a stake in preserving the beverage license. In addition to their denials, the purported use of cocaine by Charles Schoener and Charles Hall on the licensed premises in the presence of their employees is inconsistent with their efforts to prohibit or at least discourage drug use. Further, the testimony of Officer Randle indicates that drug sales and use were not "wide open" as claimed by Petitioner's other witnesses. Randle visited the licensed premises in an undercover capacity on numerous occasions beginning September 27, 1983, but was not able to obtain a delivery of a controlled substance until February 18, 1984.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending Respondent's alcoholic beverage license for a period of 90 days, including the emergency suspension now in effect. DONE and ENTERED this 17th day of April, 1984, in Tallahassee, Florida. R. T. CARPENTER 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 17th day of April, 1984.
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 Respondent is a Florida corporation. Gary Popkin is its sole corporate officer and stockholder. He holds the positions of President, Vice-President, Secretary and Treasurer. Respondent is now, and has been at all times material hereto, the holder of alcoholic beverage license #16- 03 032 2-COP issued by Petitioner. The licensed business is a bar that operates under the name of Lynda's Lounge. It is located at 8007-8009 Kimberly Boulevard in North Lauderdale, Florida. C.G. is a paid confidential informant. The North Lauderdale Police Department is among the law enforcement agencies for whom he works. On the afternoon of July 19, 1989, C.G. entered Lynda's Lounge, sat down and ordered a drink. While in the bar, C.G. was approached by Vinnie Lavarello, another of the bar's patrons. They were joined by Popkin. A conversation ensued. Popkin advised C.G. that he had some "good pot" and asked him if he wanted to buy some. He suggested that C.G. act quickly because he only had a little left. Both Popkin and Lavarello told C.G. that there was no need to worry because everyone in the bar "smoked pot" and was "cool." C.G. informed Popkin that he would "let him know." He thereupon left the bar and paged Detective Gary Harris of the North Lauderdale Police Department. Harris instructed C.G. to meet him at the North Lauderdale police station, which is a short distance from the bar. In accordance with Harris' instructions, C.G. went to the police station. He provided Harris with a description of Lavarello and Popkin, as well as their names. Harris searched C.G. and C.G.'s car for drugs and found none. He then gave C.G. $20.00 with which to purchase marijuana from Popkin. C.G. drove back to the bar. He was followed by Harris in another vehicle. They arrived at the bar at approximately 5:55 p.m.. C.G. entered the bar, while Harris waited outside. Once in the bar, C.G. walked up to Lavarello and indicated that he was interested in consummating the deal they had discussed earlier that day. Popkin apparently overheard C.G. He gave C.G. a package containing marijuana (cannabis). In return, C.G. gave Popkin the $20.00 he had been given by Harris. Following this transaction, there was a discussion concerning the possibility of C.G. purchasing additional drugs, including cocaine, from Popkin. Popkin quoted C.G. prices for various quantities of the drug and encouraged C.G. to come back and do business with him. At approximately 6:10 p.m., fifteen minutes after he entered the bar, C.G. left and drove in his vehicle to a prearranged location to meet Harris. Harris observed C.G. leave the bar and followed C.G. in his vehicle to their predetermined meeting place. After they both exited their vehicles, C.G. handed Harris the marijuana he had purchased from Popkin and told Harris what had happened in the bar. Harris field tested the marijuana. It tested positive. Harris placed the marijuana in a sealed bag and forwarded it to the crime laboratory of the Broward Sheriff's Office. Tests performed at the crime laboratory reflected that the substance that Popkin had sold C.G. was indeed marijuana. After consulting with Harris regarding the matter, C.G. returned to Lynda's Lounge on July 21, 1989, to make arrangements to purchase an ounce of cocaine. As he had been told to do by Popkin, C.G. discussed the matter with Lavarello. C.G. and Lavarello agreed on a purchase price. C.G. then left the bar to get money to make the purchase. After leaving the bar, C.G. went to the North Lauderdale police station and met with Harris. Harris searched C.G. and C.G.'s vehicle for drugs and found none. He then gave C.G. money with which to purchase an ounce of cocaine from Lavarello. Although C.G. and Lavarello had agreed upon a purchase price of $700.00, because it is a common practice of drug dealers to raise their prices immediately before the transaction is to take place, Harris gave C.G. $800.00 in the event Lavarello raised his price. C.G. then drove back to the bar, followed by Harris in another vehicle. After parking, C.G. exited his vehicle and entered the bar. Harris remained outside, across the street from the bar. C.G. approached Lavarello. It was too noisy inside the bar to talk so C.G. and Lavarello left and continued their conversation in C.G.'s vehicle, which was parked in the lot in front of the bar. Lavarello indicated to C.G. that he did not have the cocaine with him and needed to pick it up, but that C.G. would have to give him the entire purchase price before he did so. C.G. then excused himself. He thereupon contacted Harris and they both returned to the North Lauderdale police station. Harris did not want C.G. to give Lavarello that much money and have to wait for the cocaine to be delivered. He therefore decided to have C.G. purchase an eighth of an ounce, instead of an ounce, of cocaine from Lavarello, the purchase price of which, C.G. had been told, was $150.00. Accordingly, Harris took back $600.00 of the $800.00 he had given C.G. earlier that day. Harris then again searched C.G. for drugs and found none. C.G. thereupon headed directly back to the bar, with Harris following behind him in another vehicle. C.G. met with Lavarello at the bar. He told Lavarello that he wanted to purchase a eighth of an ounce, rather than an ounce, of cocaine. He gave Lavarello $200.00 and made arrangements to meet Lavarello later that day at the bar to receive delivery of the cocaine he had purchased. At Lavarello's request, C.G. drove Lavarello to Lavarello's girlfriend's house. C.G. then returned to the North Lauderdale police station. At all times during this journey, C.G. and his vehicle were under Harris' observation. At the police station, Harris again searched C.G. for contraband and found none. Later that day, C.G. and Harris went back to Lynda's Lounge in separate vehicles. Harris remained outside, as C.G. exited his vehicle and headed towards the front door of the bar, where he encountered Lavarello. C.G. and Lavarello then proceeded to C.G.'s vehicle, where Lavarello handed C.G. a package containing cocaine. Upon receiving the package, C.G. complained that it appeared that he had received less cocaine than he had been promised. Lavarello admitted that he had given his girlfriend some of the cocaine that originally had been intended for C.G. To compensate for the missing cocaine, Lavarello gave C.G. a package containing marijuana. In addition to the cocaine and marijuana, Lavarello also gave C.G. a $20.00 bill and a gas receipt reflecting the amount of money he had paid for gasoline during his trip to pick up the cocaine. Following this transaction, C.G. and Lavarello went their separate ways. As he had done after the buy he had made on July 19, 1989, C.G. met Harris at a prearranged location. He handed Harris everything that Lavarello had given him. Harris searched C.G. and found no additional contraband. Harris then field tested both the cocaine and the marijuana. The test results were positive. After conducting these field tests, Harris placed the cocaine and marijuana in a sealed bag and forwarded the bag to the crime laboratory of the Broward Sheriff's Office. Tests performed at the crime laboratory reflected that the substances in question were indeed cocaine and marijuana. Popkin and Lavarello were subsequently arrested by Harris. 1/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order finding Respondent guilty of the violations of Section 561.29(1), Florida Statutes, charged in the January 9, 1990, Notice to Show Cause and revoking alcoholic beverage license #16-03032 2- COP held by Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this & day of October, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675
The Issue Whether Respondent committed the offenses alleged in the notice to show cause and, if so, what disciplinary action should be taken.
Findings Of Fact The bar At all times pertinent hereto, respondent, Melba Mosca, held alcoholic beverage license number 23-00737, series 2-COP, for the premises known as 71 Bar and Grill (the "premises"), located at 1220 Normandy Drive, Miami Beach, Dade County, Florida. The investigation On January 28, 1994, Officer Luis King of the Miami Beach Police Department, operating undercover, entered the licensed premises as part of an investigation of illegal drug activity. The premises is a small bar, containing one main bar, a pool table, a pinball machine and a jukebox. At the time he entered, Officer King observed between 15 and 20 patrons, a female bartender, and another individual behind the bar, later identified as "Dave." At the time, Dave appeared to Officer King to be the manager or in charge of the premises since he had the keys to the register, full access to the bar and the remainder of the premises, and actively controlled the bartender and patrons. During subsequent visits, Officer King discovered that Dave was the son of the owner, respondent Melba Mosca, and his activities in the bar, from bartending, scheduling the bartenders, and ordering bar supplies and food, confirmed his employment and management status in the bar. 1/ That evening, Officer King observed one Phillipi Blanco (Flip), a known narcotics dealer, on the premises, and the pattern of his activities suggested to Officer King that Flip might be dealing narcotics. Accordingly, Officer King resolved to return to the premises on another occasion. On February 11, 1994, Officer King returned to the premises at or about 9:30 p.m., and noticed Dave, the only employee on the premises, tending the bar. Dave appeared very agitated that evening, consistent with being under the influence of some controlled substance, and exhibited some strange behavior, such as exposing his genitalia while working behind the bar. On one occasion that night, Dave locked himself in the men's restroom with unknown patrons for approximately one-half hour, leaving the bar unattended. That same evening, Officer King met with Eugene Scott, who he had met the previous night, in the men's restroom, and Scott offered to sell Officer King one plastic baggie of cocaine for $30. Officer King accepted, and paid Scott $30 in exchange for the cocaine. 2/ On February 12, 1994, Officer King returned to the licensed premises at or about 7:30 p.m. Officer King did not recall if Dave was on the premises that evening, but about 8:40 p.m. he approached Eugene Scott by the back door and asked Scott if he could purchase some more cocaine. Scott stated that he did not have any cocaine but that he did have some marijuana. In exchange for $10, Officer King purchased a baggie of marijuana from Scott. As noted, this transaction occurred near the back door, and was not observable from the bar. During the evening of February 19, 1994, Officer King returned to the licensed premises to continue his investigation. While at the premises, Officer King played pool with a patron known as Manuel Fernandez (Manny), who he knew from previous visits and during the course of that game asked Manny if he could purchase some cocaine. Manny refused. Later, Officer King observed Flip and an unknown patron enter the restroom. Officer King and Manny entered the restroom and Officer King asked Flip if he could buy some cocaine. Flip refused, because he "did not know " Officer King "well enough." Immediately after Flip left the restroom, Manny asked Officer King what he wanted and Officer King replied that he wanted to purchase $20 worth of cocaine. Officer King handed Manny $20 and a few minutes later Manny joined Officer King at the pool table and handed him a plastic baggie, secreted inside a matchbook, containing cocaine. Dave was in the bar at the time, but the proof fails to demonstrate that he observed or had the opportunity to observe any of these discussions or transactions. On March 1, 1994, at or about 7:45 p.m., Officer King returned to the licensed premises to continue his investigation, and during the course of that visit engaged Dave in a game of pool. While playing pool, Officer King was approached by a patron known as "Gennie," who Officer King had observed on the premises previously. Gennie asked Officer King if he needed anything and Officer King replied that he wished to purchase $20 worth of cocaine. Officer King gave Gennie $20 and Gennie approached Dave and asked if he had any cocaine. Dave replied that it would be a little while, and shortly thereafter he left the premises. A few minutes later Dave returned with an unknown male, entered the men's restroom, and locked the door. A few minutes later, Dave exited the restroom, and he and Gennie engaged in a hand-to-hand transaction. Gennie then went to the lady's restroom, and on her return handed Officer King a plastic baggie of cocaine and explained she had taken a "hit" before delivering it to him. Later that evening, Officer King asked Gennie if she could get him another $20 worth of cocaine. Gennie replied that would be "no problem," and approached Dave and asked him for another $20 worth of cocaine. Shortly thereafter, Dave and the unknown male again entered the men's restroom and locked the door. When he exited a few moments later, Dave went directly to Gennie and they again engaged in a hand-to-hand transaction. Gennie then went to the lady's restroom, and when she emerged a few moments later handed Officer King a small plastic baggie containing cocaine. Gennie again advised Officer King that she had taken a "hit" prior to delivery, as "her payment". On March 4, 1994, Officer King returned to the licensed premises to continue his investigation. Upon entering the premises Officer King went directly to the restroom and was followed by Scott. Scott asked Officer King if he "needed anything." Officer King told Scott he wished to purchase some cocaine, and later that he wished to purchase some marijuana and crack cocaine. Scott advised Officer King that it would be a while before he could get the cocaine, but that he could get the marijuana and crack cocaine immediately for $10 each. Officer King gave Scott $20, and Scott left the premises. A few minutes later, Scott returned to the premises and handed Officer King a plastic baggie containing marijuana and a rock of crack cocaine. Officer King then left the premises, but returned about 30 minutes later. While Officer King was playing pool with Dave, Scott returned to the premises, approached Officer King, and handed Officer King a plastic baggie containing cocaine. This transaction occurred openly, with no attempt by Scott to conceal the transaction from Dave. The owner's explanation Respondent, Melba Mosca, is 70 years of age, and has owned the 71 Bar and Grill since April 1993. According to respondent, she has been very alert to prevent drugs from being present on the premises, has signs posted in the bar prohibiting drugs, and has instructed her bartenders not to allow drugs and to phone the police if they see any drugs. Respondent further averred that in October 1993 she was hospitalized for an operation, and her ability to supervise the premises since that time was impaired. Notwithstanding, she was on the premises two to three times a day, and at shift change. According to respondent, her son Dave "watched" the premises for her when she was ill, but was not an employee. The testimony of Helia Mercado, respondent's nighttime bartender, was consistent with that of respondent. As heretofore noted in endnote 1, the testimony of respondent and Ms. Mercado that Dave was not an employee or agent of the owner was rejected as not persuasive or credible. Indeed, respondent's own testimony that Dave "watched" the premises for her, and Officer King's observation of his activities, compel the conclusion that Dave was an agent or employee of the owner. The testimony of respondent and Ms. Mercado that they had never observed any narcotics activity on the premises, as well as the efforts that were taken to discourage it, while of questionable credibility, stands unrefuted. Indeed, there is no proof of record that respondent was present on the premises when any of the transactions occurred that are the subject matter of the notice to show cause, and no proof that she or any of her agents or employees, except for Dave, were ever in a position to observe, much less observed, those or any other illicit activities on the premises. Under such circumstances, and given the limited number of transactions, the limited time of day at which they occurred, and the surreptitious nature of the majority of the transactions at issue, it cannot be concluded that respondent, based on the competent proof of record, fostered, condoned, or negligently overlooked such illegal activity.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the notice to show cause. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of April 1994. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April 1994.
Findings Of Fact Respondent is a Florida corporation doing business in Tampa, Florida, and is the bolder of alcoholic beverage license number 39-482, 4-COP. Respondent's licensed premises are located at 2309 North Dale Mabry Highway, Tampa, Hillsborough County, Florida. The license was suspended by Petitioner's Emergency Order of Suspension issued July 22, 1982. On March 25, 1982, Beverage Officer Freese entered Respondent's licensed premises in an undercover capacity after paying a $1 cover charge. Freese proceeded to a circular room located upstairs in the licensed premises. This room had a small bar in the center, a small dance stage in front of the juke box, and bench-type seats located around the perimeter of the room. Shortly after entering the licensed premises, Freese was approached by a female dancer known as Diane. She sat down next to Freese without invitation and asked Freese if she could call the waitress over. Upon inquiry by Freese, Diane informed him that the reason for calling the waitress was because Freese had a drink and she did not. When Freese asked if that meant she wanted a drink, her reply was yes, and she thereafter ordered a drink. The drink was later served and Freese was charged $4 (Count 1). At approximately 10:45 p.m. on March 25, 1982, a female dancer known as Caryl seated herself next to Freese without invitation and inquired, "Who is going to buy me a drink?" After Freese agreed to buy her a drink, she stated that she was not supposed to solicit drinks because the premises had lost its license for such action in the past. Caryl ordered her drink from a waitress who returned with the drink, placed it in front of her, and charged Freese $4 (Count 2). At approximately 11:55 p.m. on March 25, 1982, a female dancer known as Mercedes was seated next to Freese and asked him if she could call the waitress over. When Freese asked why, the dancer replied that she needed a certain brand of mixed drink, and called the waitress to the table. She then ordered a drink for herself, which the waitress brought and placed in front of Mercedes. The waitress charged Freese $4 for the drink (Count 3). On March 26, 1982, Freese and a Confidential Informant entered the licensed premises in an undercover capacity. After paying the $1 cover charge they proceeded to the same circular room as on the previous occasion. At approximately 9:45 p.m. Mercedes again seated herself next to Freese and remarked that both she and Freese were dry and that she would call the waitress over. When asked by Freese if that meant she wanted him to buy her a drink, she summoned a waitress named Darlene to the table and ordered a drink for herself. Upon returning to the table, the waitress placed Mercedes' drink in front of her and charged Freese for the drink. The total charge for the two drinks was $6, and Mercedes later informed Freese that all of the dancers got doubles when ordering drinks (Count 4). On March 31, 1982, Officer Freese and the Confidential Informant again entered the licensed premises in an undercover capacity. After paying the cover charge of $1 each, Officer Freese again proceeded to the upstairs circular room of the lounge. At approximately 8:25 p.m., the dancer Mercedes again joined Officer Freese at the table. After paying Mercedes $5 for dancing, Mercedes asked Freese if she could call the waitress over. Freese replied, "It's up to you," and Mercedes called a waitress known as Marty to the table and ordered a mixed drink for herself. Upon delivering the drink to Mercedes, the waitress informed Freese that the cost of the drink was $4 (Count 5). At approximately 9:00 p.m. on March 31, 1982, Mercedes again asked Freese, "May I call the waitress over?" Freese replied, "It's your turn to buy." Mercedes replied that it was not her turn and ordered a mixed drink for herself from the waitress. The waitress charged Freese $6 for this drink (Count 6). At approximately 9:40 p.m. on March 31, 1982, Mercedes again asked Freese if she could call the waitress over. After Freese told her that it was her turn to buy this time, Mercedes replied that it was his turn to buy. She again called the waitress over and ordered a drink for which Freese was charged $4 (Count 7) At approximately 11:00 p.m. on March 31, 1982, Freese was in the presence of two dancers, Mercedes and another dancer known as Cheryl. At this time, Mercedes again asked Freese if she could call the waitress over. After Freese asked Mercedes if she was buying this time, she replied, "I do the dancing." In response to this remark, Freese stated, "I guess that means that I pay for all the drinks," to which Mercedes indicated yes. Mercedes ordered a drink from the waitress Marty, who returned with the drink, placed it in front of Mercedes and charged Freese for the drink (Count 8). On April 7, 1982, Officer Freese entered the licensed premises with a Confidential Informant in an undercover capacity. Upon entering the licensed premises, they proceeded to the circular bar upstairs and seated themselves at a small table. At approximately 8:45 p.m., the dancer Mercedes, while seated at the table with Freese, asked him if she could order another drink. She ordered a drink from a waitress who served her the drink and then charged Freese $4 for it (Count 9). On April 7, 1982, at approximately 9:15 p.m., the dancer known as Caryl was seated at the table with Freese. She turned to him and stated, "Mike, I need a drink." When Freese inquired as to what she had said, Caryl replied, "Will you get me a drink?" (Count 10). On April 8, 1982, Officer Freese and a Confidential Informant again entered the licensed premises and proceeded to the upstairs bar. At approximately 8:40 p.m. the female dancer known as Mercedes was seated at the table with Officer Freese. While tipping her empty glass toward Freese, Mercedes asked if she could call the waitress. She then ordered a drink for herself, which was delivered to her by the waitress who charged Freese for the drink (Count 11). At approximately 9:15 on April 5, 1952, Officer Freese and a Confidential Informant were joined by another female dancer known as Caryl, who proceeded to ask, "Who is going to buy me a drink?" While a waitress known as Darlene was standing in front of Caryl, Caryl asked Freese, "Mike, will you buy me a drink?" She then ordered a mixed drink for herself, which was delivered to her, and the waitress charged Freese for the drink (Count 12). On May 13, 1982, at approximately 11:00 p.m., Beverage Officers Freese and Hodge entered the licensed premises in an undercover capacity and proceeded upstairs to the circular room. Shortly after seating themselves, they were joined by a dancer known as Stephanie. At approximately 9:45 p.m. the officers were approached by a waitress known as Doris. Hodge ordered a beer and upon inquiry by the waitress if there would be anything else, Hodge replied in the negative. However, Stephanie stated to the waitress that she would have a mixed drink. While waiting for the drinks to be delivered, Stephanie informed Hodge that she could not ask for a drink because it would be soliciting and she could be thrown into jail for that. After paying for the drinks, Hodge made a remark as to the cost of the drinks to which Stephanie replied, "That's how the house makes its money, off the drinks, and we make ours off the lap dances. That's what this upstairs is about, drinking and dancing." (Count 13) At approximately 11:00 p.m. on May 13, 1982, Freese was approached by a dancer known as Linda, who asked if she could dance for him. While lap dancing for Freese, Linda asked, "Can I get a drink, too?" Freese asked if she wanted him to buy her a drink and she replied, "Yes, will you buy me a drink?" Linda then called the waitress, ordered a drink which was delivered to her at Freese's table, and he was charged $4 for Linda's drink (Count 14). On May 18, 1982, Beverage Officers O'Steen and Freese entered the licensed premises in an undercover capacity and proceeded to the upstairs lounge. At approximately 8:35 p.m., Freese was approached by a female dancer known as Darlene, who asked to dance for him. After informing Darlene that he did not want a dance, she asked him if he would buy her a drink. Darlene then summoned a waitress over to the table and ordered a mixed drink for herself. The waitress delivered the drink to Darlene and charged Freese for it (Count 15). At approximately 10:25 p.m. on May 18, 1982, Freese was again approached by Darlene and asked, "How about a drink?" When Freese asked Darlene if she was buying, she responded "No, you are." Darlene then summoned the waitress and ordered a drink which was delivered to her at Freese's table. Freese paid for the drink (Count 16). On May 19, 1982, Officers Hodge and Freese entered the licensed premises in an undercover capacity and proceeded to the circular lounge upstairs. At approximately 8:45 p.m., a dancer known as Diane asked Freese, "Can I call the waitress?" to which Freese replied, "Does that mean that you want me to buy you a drink?" After Diane replied affirmatively, she summoned the waitress over and ordered a drink which was later delivered to her at Freese's table. Freese was charged $4 for the drink (Count 17). On May 19, 1982, at approximately 8:55 p.m., the dancer Mercedes approached the officers' table and seated herself between them. Mercedes then asked Hodge if she could call the waitress over. She thereafter ordered a drink which was delivered to her at the officers' table by the waitress Darlene, who charged Hodge $4 for the drink (Count 18). At approximately 9:10 p.m. on May 19, 1982, Diane was still seated at the officers' table and asked Freese if she could call the waitress again. Diane then called the waitress to the table and ordered a mixed drink for which Freese was charged (Count 19). At approximately 9:50 p.m. on May 19, 1982, Diane asked Hodge "Do you want to buy me a drink now, or do you want me to wait until after I dance?" In response to this, Hodge asked Diane if she wanted him to buy her a drink, to which Diane replied, "yes." While Diane was dancing, the waitress brought her drink to the table and charged Hodge $4 for it (Count 20). On July 6, 1982, Officers Freese and Hodge again entered the licensed premises in an undercover capacity and proceeded to the upstairs lounge. At approximately 8:55 p.m., the dancer Stephanie, who was then seated at the officers' table, said to Hodge, "Will you buy me a drink?" She thereafter ordered a drink for which Hodge was charged (Count 21). At approximately 9:15 p.m. on July 6, 1982, Officers Hodge and Freese were seated in the upstairs portion of the lounge. At this time, they were accompanied by the dancers Caryl and Stephanie. During the course of a conversation, Hodge asked Freese if he was buying the next drinks, and Stephanie said, "What about me?" A waitress was present during this conversation and asked Freese if he intended to buy the dancer Caryl a drink also. Both Stephanie and Caryl each ordered mixed drinks which were delivered to the officers' table and were paid for by the officers (Count 22). At approximately 11:00 p.m. on July 6, 1982, the dancer Stephanie was seated with the officers at their table. At this time, she asked Freese, "Are you going to buy me a drink?" Upon Officer Freese replying "Yes," Stephanie ordered a mixed drink from the waitress who brought the drink to Stephanie and charged Officer Freese $4 (Count 23). On July 8, 1982, Officers Freese and Hodge entered the licensed premises in an undercover capacity and proceeded to the upstairs lounge. At approximately 7:25 p.m., they were approached by a woman known as Judy, who asked if she could join them for a drink. She then stated, "Mine only costs $2. They cost $4 for the girls on the night shift." Judy then ordered a drink which was delivered to her at the officers' table and was paid for by Freese (Count 24). At approximately 7:35 p.m. on July 8, 1982, Judy inquired of Hodge if he was ready for another beer and then said to Freese, "Can I get another one?" She then ordered a drink from the waitress known as Cathy, and the drink was paid for by Officer Freese (Count 25). At approximately 9:45 p.m. on July 8, 1982, Officers Freese and Hodge were seated at a table with a dancer known as Dorothy. At this time, Freese was approached by a waitress who asked him if he needed another drink, at which time Freese looked at Dorothy, and she said, "I'm drinking 7 and 7." The waitress delivered the drink to Dorothy, and it was paid for by Freese (Count 26). On July 19, 1982, Officer Hodge was again in the licensed premises in an undercover capacity and was seated in the upper level of the lounge. At approximately 9:15 p.m. the dancer Stephanie, who was sitting with Hodge asked, "Are you going to buy me a drink?" Upon Hodge agreeing to do so, Stephanie called to a waitress known as Darlene to bring her a mixed drink. Hodge paid for this drink (Count 27). On April 1, 1982, Officer Freese and the Confidential Informant were in the circular lounge in the upper portion of the licensed premises. At approximately 9:00 p.m., the dancer Caryl seated herself between the Confidential Informant and Freese. After the Confidential Informant inquired of Caryl if she had a bag of marijuana she had earlier promised them, Caryl stated that she did and would retrieve it. She then proceeded to a small dance stage and retrieved a large bag from which she transferred something into her handbag. Upon returning to the table, Caryl handed the marijuana to the Confidential Informant and was paid $10 by Freese (Count 25). On May 13, 1982, Officers Hodge and Freese entered the licensed premises in an undercover capacity. At approximately 11:10 p.m., the dancer known as Mercedes joined the officers and entered into a conversation with Freese. During the conversation, Mercedes discussed her use of cocaine and how it affected her. Freese inquired if she was in possession of any cocaine, to which she replied, "No, but I can get you some," and informed him that it would cost $45 for a half gram. At approximately 11:45 p.m., Mercedes delivered a small, clear, plastic package to Hodge containing a white powdery substance, later proven to be cocaine. The delivery of the cocaine occurred on the licensed premises while the officers were seated in the upstairs lounge (Count 29) On July 7, 1982, Officers Hodge and Freese were again in the licensed `premises. They engaged the dancer Stephanie in a conversation concerning the availability of drugs. She informed them that she was in possession of a fourth of an ounce of marijuana and would sell each of the officers two marijuana cigarettes for $5. At approximately 12:30 a.m. on this date, she advised Freese that she needed $10, since she was going to roll their marijuana cigarettes. At approximately 12:50 a.m. Stephanie returned to the officers' table and delivered two hand-rolled marijuana cigarettes to Freese and one to Hodge. This transaction took place on the licensed premises in the upstairs portion of the lounge (Counts 30 and 31). On July 8, 1982, Officers Hodge and Freese were again in the licensed premises. At approximately 7:20 p.m., Freese was approached by the dancer Linda, who inquired if he still wanted a gram of cocaine which she had agreed to sell to him on July 7, 1982. At approximately 9:30 p.m., Linda approached Hodge and Freese in the upper portion of the lounge. She handed Freese a small, amber, glass vial containing a half gram of cocaine for which he paid her $50. She also delivered a one dollar bill containing half a gram of cocaine to Hodge for which he paid her $45. After the deliveries were made, Linda informed Freese that she could obtain cocaine for him at any time as long as he gave her a day's notice (Counts 32 and 33). On July 14, 1982, Officer Freese was again in the licensed premises and took delivery of approximately one gram of cocaine from the woman known as Linda. Linda was not working as a dancer at the time, but was downstairs working as a bartender. Prior to the delivery of the cocaine to Freese, for which he paid $90, Linda requested that she be allowed to ingest part of the cocaine and proceeded to the dancers' restroom. Upon returning she gave Officer Freese the gram of cocaine contained in a plastic bag with the seal broken (Count 34). On July 15, 1982, Officers Freese and Hodge returned to the licensed premises accompanied by Special Agent Rick Look from the Florida Department of Law Enforcement. On this occasion, Agent Look took possession of approximately one-eighth of an ounce of cocaine from the bartender Linda. The delivery was made in the parking lot of the licensed premises where Linda delivered the cocaine to Look in return for $275. The arrangements for this transaction had been made the night before inside the licensed premises (Count 35). On July 20, 1982, Officer Hodge was again in the licensed premises in an undercover capacity. At approximately 8:50 p.m., the bartender Linda delivered approximately one gram of cocaine to Officer Hodge in return for $90. On this same date, Linda also delivered approximately one-eighth of an ounce of cocaine to Special Agent Look in return for payment of $280. The deliveries to Look and Hodge both took place in the downstairs portion of the licensed premises in the vicinity of the bar (Counts 36 and 37). The testimony of Respondent's employees established that the dancers in the upper portion of the lounge are not on Respondent's payroll and, in fact, pay Respondent for the privilege of dancing upstairs. Their compensation is obtained through tips they receive from customers for their dances. It was shown that the upstairs dancers are informed as to the rules of the club which prohibit solicitation of drinks and possession of drugs. These dancers have access to the various portions of the lounge, including the dressing room and the restrooms. Their schedules are controlled by the manager, who also hires and fires them. From the testimony of the dancer Stephanie, whose real name is Peggy Knight, it was shown that dancers generally knew that certain other dancers were selling drugs on the premises, that several of the dancers were using drugs and that they regularly ingested such drugs in the women's restroom. The reason for using this room was the double entrance, which could be locked from the inside so as to prevent intrusion. Testimony of the president of the licensee corporation, 2001, Inc., established that Respondent paid a $10,000 fine and served a two weeks' suspension in 1991 as a result of violations of Section 561.131, Florida Statutes. The president occasionally visits the licensed premises, but had not been to the upstairs portion of the lounge for almost two years.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty as charged in Counts 1 through 12, 14 through 25 and 27 through 37 of the Notice to Show Cause/Administrative Complaint and suspending Respondent's alcoholic beverage license for a period of one year. DONE and ENTERED this 10th day of February, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 February, 1983.
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, Marsbar of Kendall, Inc., doing business as Marsbar, held alcoholic beverage license number 23-00706 which is a series 4-COP license. At all times material to the allegations in this case, Marsbar was located at 8505 Mills Drive, R-2, 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, Gerald Joe Delaney, and Henry Long. Others having a direct or indirect interest in the company are: Bonnie M. Vasu, Carole W. Vasu, Paul Lynch, Jonathan G. Delaney, and Douglas Long. 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 Marsbar began on April 5, 1997, and was concluded on June 12, 1997. In total, the detectives made eight 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 April 5, 1997, Detective Robertson approached a male bathroom attendant and represented to him that "Anthony" had sent him. He then asked the attendant for drugs and, by implication in the language of such transactions, requested cocaine. The attendant referred him to a patron of the bar who he described as a man in a black shirt with a black cap. Detective Robertson attempted to locate the patron as he had been described and even asked a security person if he had seen the male. When the security person denied having seen any drug dealers, Detective Robertson went back to the attendant for clarification who then pointed out an individual known in this record as "Juan." After transferring $20.00 to Juan, Detective Robertson received a small plastic bag containing less than one-half gram of cocaine. Upon receipt of the bag, Detective Robertson held the bag at approximately waist level and "flicked" it to verify the amount of the contents. This was done in an inconspicuous manner and simulated the procedure the detective felt was used by drug purchasers to examine the amount of the substance being procured. Although this transaction took place eight or ten feet from a bartender, there is no evidence that the transaction was witnessed by any person other than those participating in the buy. On April 19, 1997, Detective Fernandez went to the female restroom attendant and asked for drugs. After being advised to return later, Detective Fernandez observed an unknown male hand the attendant a plastic bag. In exchange for $25.00, the attendant then delivered a plastic bag containing approximately one-half gram of cocaine to Detective Fernandez. Although Detective Fernandez observed a bartender enter and exit the restroom during the events described in this paragraph, there is no evidence that the bartender observed any or part of the transactions which took place. On May 8, 1997, or the early morning of May 9, 1997, Detective Robertson again approached the male bathroom attendant at Marsbar and requested drugs. On this occasion the attendant, in exchange for $20.00, sold the detective approximately one-half gram of cocaine in the men's restroom. Although there were other patrons of the bar within the restroom, there is no evidence that any of them witnessed the transaction. On May 9, 1997, Detective Fernandez also sought to purchase drugs through the female restroom attendant. Although there were numerous patrons entering and exiting the facility, there is no evidence that anyone observed Detective Fernandez exchange $25.00 for approximately one-half gram of cocaine which was delivered in a small plastic bag. On May 16, 1997, Detective Fernandez purchased two bags of cocaine for $30.00 each from the female restroom attendant following the same procedure described above. Again, there is no evidence that anyone in or near the restroom observed the transactions. Detectives Fernandez and Robertson went to Marsbar again on May 30, 1997 for the purpose of purchasing illegal drugs. Using the same methods described above, Detective Fernandez was unable to purchase cocaine on this date. Detective Robertson, however, after beginning a conversation inside Marsbar, was able to purchase cocaine in the parking lot outside the club. This transaction resulted from contact made with a club patron known in the record as "Alex." This individual and the female restroom attendant introduced Detective Robertson to another patron known in this record as "Al" who later delivered the cocaine in the parking lot. Another male, "Manolito" in this record, approached Al and demanded cocaine he had allegedly been sold but had not received. Conversation regarding the pending sales took place in the licensed club, but it is unknown whether any employee of Marsbar heard the nature of the transactions discussed. A presumably drunken outburst from one bar patron suggests he understood a drug transaction was being discussed. It is undisputed that the actual exchange took place off the licensed premises. Finally, on June 12, 1997, Detective Fernandez returned to Marsbar and for $30.00 was able to purchase approximately one- half gram of cocaine. This purchase, like the others by Detective Fernandez, was through the female restroom attendant and occurred in or near the restroom facility. There is no evidence anyone observed the transaction. At all times material to the allegations of this case, Marsbar was a popular club which was well attended on the nights of this investigation. The audio system for the club, though especially dominating on the dance floor, distributed music throughout the licensed premises. As to the lighting system for the club, at all times material to this investigation, it would have been set at its lowest levels of illumination throughout the licensed premises. Consequently, only the restrooms would have been well lit. At all times material to the allegations of this case, the restroom attendants were not employees of Marsbar or its management company but were contract personnel through a third party valet service operated by David Cook. Marsbar 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, Marsbar notified Cook of its intention to assist in the prosecution of such individuals. Marsbar is managed by a company known as Chameleon Concepts. In order to effectively identify and minimize potential losses for Marsbar, 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, Marsbar was voluntarily being reviewed by an independent company for 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, Marsbar employees have been required to participate in responsible vendor programs. Marsbar management routinely conducts meetings wherein responsible vendor practices are discussed. Marsbar and Chameleon Concepts have developed written employee handbooks and policies which specifically admonish employees regarding illegal substances on the licensed premises. Marsbar employees and managers are instructed to advise the management of any suspected illegal substances on the licensed premises. In the past, Marsbar 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 or regulations of the Department, has been deemed credible and persuasive regarding Marsbar's position on illegal drug transactions. Management would not condone or allow illegal drug sales if they were known to it. None of the officers or shareholders of Marsbar were aware of the illegal drug transactions occurring on the licensed premises. 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. Neither of the detectives making the purchases acted in a flagrant or open manner. Moreover, neither of the detectives attempted to verify whether or not bartenders, security guards, or managers employed by Marsbar were aware of the restroom attendants' illegal activities. 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 reasonable.
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
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 The issues presented are the product of an administrative complaint/notice to show cause placed against Respondent by Petitioner pertaining to 19 separate allegations of possession, sale-delivery of controlled substances, within the meaning of Chapter 893, Florida Statutes. The transactions were allegedly made by agents, servants, or employees of Respondent. The activities by those individuals, i.e., agents, servants, or employees are allegedly tantamount to keeping or maintaining a public nuisance on the licensed premises, to wit: maintaining a building or place which is used fob the keening, selling, or delivery of controlled substances defined in Chapter 893, Florida Statutes. As a result of the accusations, Respondent is accused of violating Subsections 561.29(1)(a) and (c), Florida Statutes.
Findings Of Fact Respondent corporation operates a business known as the Act I Lounge, which is located at 290 Seventh Avenue and U.S. Highway 19 North, Clearwater, Pinellas County, Florida. Brewer Miller is the sole owner of the Respondent corporation and is the president of that concern. The corporation holds an alcoholic beverage license, No. 62-508, Series 4-COP issued by Petitioner allowing the sale of alcoholic beverages in the subject business premises. In the month of April, 1982, Sherie Morel, Tina Belcher, Robin Herro, Mitzi Stevens, and Chris Goodman worked in the licensed premises as dancers. These performances took place in an area in the licensed premises where a raised platform was located. The purpose of the dancing was to entertain the patrons and the dancers solicited "tips" from the patrons. Respondent corporation did not pay a salary to the dancers. The dancers performed with the permission subject to dismissal by officials within the Respondent corporation, pursuant to verbal agreements between management and performers. Brewer Miller and managers who worked at the Act I Lounge established criteria for costume requirements for the dancers; content and manner of dances performed; and frequency and length of each dance performance. The criteria were designed to avoid violation of State laws and county ordinances related to dress. The dancers could choose their costumes within those guidelines. Ordinarily, the dancers provided their own choice of music. In addition to dances performed on stage, the dancers would dance at the table of patrons within the establishment and would dance while seated on the laps of patrons. This latter performance is known as a "lap dance". The routines, performed for the benefit of individual customers, were compensated for by payment sought from those particular customers. The dancers were also entitled to discounts on alcoholic beverages purchased beyond a certain number. The effect of the arrangement which the Respondent had with the dancers was one which allowed the dancers to be compensated by patrons and the Respondent to gain the benefits of having patrons in the bar to observe the dancing and to consume alcoholic beverages. Finally, should any dancer be caught with drugs or selling drugs, she would be barred from admission to the licensed premises. In pursuit of the Respondent's drug policy in the premises, a barmaid, identified as "Donna", had been dismissed for using drugs, based upon her appearance of being under drug influence and having been found with a syringe in a napkin. This occurred in 1981. An individual associated with the bar employment identified as Pam Fletcher had been dismissed for drug related matters. Brewer Miller had dismissed one Cally Russell from employment at the Act I Lounge based upon information to the effect that she sold methaqualone; his observation of her handing something to a customer suspected of being that substance; and her failure to show whether the substance was in fact a drug. In addition, around 1:30 a.m. on April 25, 1982, the manager in the Act I Lounge had summoned the Pinellas County Sheriff's Office to remove a patron based upon the fact that the customer had been observed with drugs in the restroom area. Robin Herro, one of the dancers, was in the restroom facility at the time the customer was observed with the drugs. She did not have drugs on her person. Consequently, Miller made the judgment to fine Robin Herro as opposed to removing her from the licensed premises, with the admonition that her presence with someone using drugs on another occasion would bar her from the licensed premises in the future. Miller had also spoken to his bar managers employed at the Act I on the topic of the laws and ordinances related to the sale of alcoholic beverages, and mirrors were installed to help security surveillance activity by management. Notwithstanding those occasions in which drug usage was discovered and action taken to avoid the problem, an investigation conducted by Beverage Officers working for Petitioner in an undercover capacity in April, 1982, led to the purchase of a number of controlled substances within the meaning of Chapter 893, Florida Statutes. The purchases were made from the aforementioned dancers working in the premises in April, 1982. The dancers had been operating in the licensed premises for a period of two or three months prior to the investigation. In a related vein, Brewer Miller had told one of his bar managers at the Act I, a man named Cox, that the dancers could smoke marijuana in the public restroom because Miller did not have control over that public convenience. In the initial part of April, 1982, the agents from the Division of Alcoholic `Beverages and Tobacco began their investigation at the Respondent's licensed premises. Emphasis was placed on determining whether illicit drug sales were being conducted in the facility. Michael Freese, Beverage Officer, worked in an individual capacity. Beverage Officers Gary Hodge and Donald O'Steen worked as a team, always remaining in close proximity when in the licensed premises, except for April 16, 1982, when Hodge did not enter the bar. Respondent, in the person of its owner or other officials, was not made aware of the undercover investigation. When the officers would enter the licensed premises in April, 1982, they would find a doorman on duty and various bartenders, waitresses, and bar managers working there. Brewer Miller was also in attendance at times, which occasions will be more particularly described subsequently. On April 14, 1982, Freese entered the licensed premises at around 9:25 p.m. and spoke to dancer Sherie Morel. In the course of the conversation, Freese commented to Morel that it appeared that a drug transaction was occurring at a nearby location between dancer Chris Goodman and a white male. Morel indicated that it was a drug transaction and that Chris Goodman had cocaine which could be obtained by Morel. A discussion was then held between Morel and Freese in which Morel indicated that one-half gram of cocaine would cost $50. Morel left Freese and met with Goodman and brought back a packet containing a white powdery substance. That packet had been opened and Freese made Morel return the packet to Goodman and substitute a packet which was not opened. During this sequence, Morel licked some of the contents of the packet. The transaction took place in the licensed premises at approximately 10:45 p.m. The exchanges between Morel and Freese were made in the open. The substitute packet contained cocaine, approximately one-half gram. At the time that this transaction took place, there was no indication that Brewer Miller was in the bar. Freese returned to the licensed premises at around 9:40 p.m. on April 15, 1982, and contacted Sherie Morel. He talked about the purchase of one gram of cocaine, and Morel indicated that the cost of that cocaine would be $100. Morel obtained material from Chris Goodman which Morel gave to Freese, and which was later revealed to be cocaine in the amount of approximately one gram. The transaction took place in the licensed premises. Freese did not see the exchange of the cocaine between Goodman and Morel before Morel returned and handed the cocaine to Freese. Morel was gone approximately 20 minutes in pursuit of the transaction with Goodman and during that time, the dancers went to the dressing room area set aside for dancers. Although Freese did not see the exchange between Goodman and Morel, Morel indicated that Goodman had given her the cocaine and the circumstances establish an exchange from Goodman to Morel. While Morel and Goodman were conferring, Brewer Miller was standing within six to eight feet of that conversation. Miller was located at the bar. At around 11:15 p.m. on April 15, 1982, Freese purchased a marijuana cigarette from Morel for $5 following a conversation in which Morel told Freese she could "turn him on to marijuana". The marijuana/cannabis contained less than one gram of that controlled substance. On April 16, 1982, Freese went back to the licensed premises at around 10:00 p.m. and spoke with Morel. While dancing for Freese, Morel asked him if he liked "downers'. He told her he liked "ludes", meaning methaqualone. He also stated he was partial to cocaine. Out of this conversation, while in the licensed premises, she sold Freese two capsules of suspected valium, which was revealed to be Diazepam. There was no indication that Brewer Miller was in the licensed premises at the time of this transaction. On April 17, 1982, at around 1:15 a.m., Freese entered the licensed premises. After contacting Morel, a transaction was entered into in the licensed premises in which approximately one-half gram of cocaine was purchased from Morel for the price of $50. The cocaine was contained in a packet. At the time of the exchange of the material, Brewer Miller was located approximately 30 to 40 feet away. On April 19, 1902, Freese entered the bar at around 9:30 p.m. and spoke with Tina Belcher, another dancer in the licensed premises. Belcher had previously talked to Freese and Morel about the subject of drugs. On this occasion, Morel stated that she was going to be gone and wanted Belcher "to take care of Freese". At around 10:10 p.m., Belcher delivered cocaine to Freese in a small packet while in the licensed premises. There was no indication that Brewer Miller was in the licensed premises at the time of the exchange. On April 19, 1982, at around 9:20 p.m., Officers Hodge and O'Steen entered the licensed premises and spoke with Tina Belcher about the drug cocaine. This occurred while Helcher was seated next to Hodge and during the course of the playing of a song on the "jukebox", which song was entitled "Cocaine". At that time, Belcher stated to Hodge "I wish I had some", referring to cocaine. Hodge in turn expressed his desire to obtain cocaine. Belcher stated that she would get cocaine for Hodge. She left Hodge to obtain the drug. When she returned, she handed Hodge a package containing cigarettes, also containing a packet with approximately one-half gram of cocaine. This transaction took place in the licensed premises. Brewer Miller had been observed on the licensed premises by Hodge on the evening of April 19, 1982; however, Hodge does not recall whether Brewer Miller was there at the time that the drug transaction took place between Hodge and Belcher involving the cocaine. On April 19, 1982, Officer O'Steen spoke with Robin Herro, and she stated she could get him some "coke", meaning cocaine. A deal was made between those individuals to purchase approximately one-half gram of cocaine for the price of $50. The money was paid at around 11:45 p.m., and after leaving his location in the licensed premises, Herro returned to O'Steen and gave him the one-half gram of cocaine at around 12:07 a.m, on April 20, 1982. At the time O'Steen purchased the cocaine from Herro, Brewer Miller was in the licensed premises approximately 20 to 30 feet away from that purchase location. At around 9:20 p.m., April 20, 1982, Freese entered the licensed premises and spoke to Morel about the possible purchase of cocaine. Freese was unable to consummate the purchase and Morel indicated that she might have quaaludes to sell, meaning methaqualone. Later he told her, at around 11:10 p.m., that he would like four and paid her $3 each for those suspected methaqualones which were later revealed to be Diazepam. At the time of this transaction, there was no indication that Brewer Miller was in the licensed premises. On April 20, 1982, at approximately 8:55 p.m., O'Steen and Hodge entered the licensed premises. Hodge spoke to the dancer Belcher and at 9:45 p.m. purchased approximately one-half gram of cocaine for the price of $50 while in the licensed premises. This followed a conversation in which Belcher had indicated that she could not afford the substance but could obtain it for Hodge. On this date, Brewer Miller had been in the licensed premises; however, Hodge was unsure whether Brewer Miller was present at the time that the transaction took place between Hodge and Belcher. On April 20, 1982, during the evening hours, Officer O'Steen was engaged in a conversation with a dancer, Mitzi Stevens. She told him that she could obtain cocaine for him for a price of $50. Approximately one-half gram of cocaine was delivered to O'Steen and Stevens was paid $50. The transaction took place in the licensed premises. On April 23, 1982, Officer Freese entered the licensed premises at around 8:15 p.m. and spoke to the dancer Robin Herro. Herro danced for him and while dancing, asked him if he wanted to buy a "lude", meaning methaqualone. She stated she had ten in quantity. He told her he wanted cocaine. At around 9:45 p.m., Freese decided to purchase methaqualone and bought four tablets from Herro for a price of $12 total. The substance was determined to be methaqualone. The transaction took place in the licensed premises. There was no indication that Brewer Miller was in attendance when the transaction took place. On April 28, 1982, Freese entered the licensed premises at around 9:30 p.m. At the time, he contacted Robin Herro, and following that contact, purchased approximately one gram of cocaine from her for $100. The purchase was made in the licensed premises. Freese was seated at a table at the time the transfer took place, and Brewer Miller was at the bar area approximately 25 feet away. On April 28, 1982, Officers O'Steen and Hodge returned to the licensed premises. In the evening hours on that date, O'Steen made an arrangement with the dancer Chris Goodman to purchase one-half gram of cocaine for $50 for the benefit of himself and another half gram for $50 for Officer Hodge. The Officers each paid Goodman $50 and retrieved the cocaine from napkins found in the dancer's garterbelt. Shortly thereafter, Tina Belcher, another dancer, sat down and requested that O'Steen give her some of the cocaine. He retrieved the napkin which contained the cocaine, give it to Belcher, who left and later returned with a package containing the substance cocaine, in the amount of approximately one-half gram. Tina Belcher also requested Hodge to provide her cocaine after the transaction with Goodman. On April 29, 1982, Officer Freese entered the licensed premises at around 9:20 p.m., and after arriving, bought cocaine from Robin Herro. During the conversation to establish the sale, Herro asked Freese if he had obtained cocaine from Chris Goodman and he replied that Goodman didn't have cocaine. Herro indicated that her "connection" was in the licensed premises, and she went and sat with a man in the bar and returned with the substance. It was at the point of her return with the cocaine that the price of $50 was arrived at. The money was paid to Herro, and the substance cocaine was provided to the officer in the licensed premises. There was no indication that Brewer Miller was in the premises at that time. At around 8:55 p.m., Hodge and O'Steen entered the licensed premises on April 29, 1982. Hodge spoke to Robin Herro and she performed a dance while seated on his lap for which she charged money. A discussion was held about narcotics and she stated "the reason I didn't talk to you last night is because I had a deal going and the guy didn't want it to be known". She stated that she could obtain cocaine for Hodge from Goodman. Herro obtained cocaine for Hodge and gave it to him and he paid Goodman $50 after asking Goodman if the price was $45 or $50, and Goodman indicating the price was $50. O'Steen had talked to Chris Goodman about the purchase of one-half gram of cocaine and saw Herro give the one-half gram to Hodge after O'Steen had informed Hodge that the deal, through Goodman, had been made. O'Steen wanted Hodge to buy the cocaine since only one-half gram was available. This transaction took place in the licensed premises. At the time of this transaction, Brewer Miller was at the bar area some 10 to 15 feet away facing in the general area of the transaction. He was nearer the "jukebox", which was playing, than he was the transaction, and the music was louder than the conversation involved in the drug transaction. On April 30, 1982, Freese returned to the licensed premises in the evening. In a conversation with Chris Goodman, she stated that her "guy is not here with the stuff, meaning her supplier of cocaine. At around 11:35 p.m. Freese approached Goodman at a table where O'Steen and Hodge were also located and asked her if the "guy" had arrived. Goodman answered in the affirmative. Freese had been seated some 10 to 12 feet away from O'Steen and Hodge. Freese returned to his location on the east wall. Goodman went to the bar area and spoke with a Bill Higgins, who-was working there, and received something from him. She then went to the ladies restroom area. At that time, Miller was located at the north end-of the bar. Goodman subsequently came to Freese's table and he removed a napkin from her garterbelt and placed $100 there. The $100 payment was in exchange for a quantity of cocaine. The transaction took place in the licensed premises, and at the point of transfer between Goodman and Freese, Miller was approximately 30 feet away. On April 30, 1982, at approximately 8:55 p.m., Hodge and O'Steen entered the licensed premises and talked to Chris Goodman. She danced a "lap dance" for Hodge and charged him for it. Goodman asked O'Steen if he still wanted a "gram". O'Steen made arrangements with Goodman to purchase approximately one gram of cocaine for the price of $100 for the benefit of O'Steen and another one-half gram for Hodge for $50. The transaction took place after Goodman indicated that her contact had arrived in the licensed premises, by stating "it's here", meaning cocaine. In the transaction, Goodman handed napkins containing the cocaine to O'Steen. O'Steen kept two packets and Hodge kept one packet. The transaction occurred in the licensed premises, and the payment of $150 was made, $100 from O'Steen and $50 from Hodge. At the time the transaction took place with Goodman involving the three packets of cocaine, Brewer Miller was at the bar area near the "jukebox". On other occasions in April, 1982, Officer Hodge had pursued the investigation; however, no drugs were purchased. He was in the licensed premises on April 13, 1982, and made no purchase of drugs. On April 15, 1982, he talked to Chris Goodman about drugs in that he needed something for his sinuses, referring to cocaine. She replied that had you asked earlier, "I would have". She told him to ask again the next day and asked if he wanted a "G", meaning a gram. This conversation followed another conversation with Goodman on April 14, 1982. On April 22, 1982, Hodge spoke with Tina Belcher and asked her if she had anything for his nose,' meaning cocaine. She stated-that she did not because Chris was all out. Chris refers to Chris Goodman. Belcher indicated she had been "ripped-off" about drugs and Fred the manager had also been "ripped-off" by Sherie Morel, in that the substance they had purchased was not what they thought it would be. At the time that drug purchases were being made by Hodge and O'Steen, 10 to 25 people would be located in the bar. All officers found the lighting to be sufficient to identify people located at the other end of the premises while purchases were being made.
The Issue This case arises out of a notice to show cause served upon the Respondent by the Division of Alcoholic Beverages and Tobacco alleging that Beverage License No. 27-92 should be suspended, revoked or otherwise disciplined for five separate counts involving drug sales on the licensed premises. As a basis for its proof, Petitioner relied upon a stipulation entered into with the Respondent and a Division of Alcoholic Beverages and Tobacco Case Report which was admitted without objection. Mr. Charles Andrews testified on behalf of himself as licensee. A copy of the notice to show cause was admitted as Joint Exhibit 1 and the Petitioner of foreign and had admitted without objection one exhibit, the case report of the Division of Alcoholic Beverages and Tobacco.
Findings Of Fact Charles D. Andrews, trading as Odom's Bar, is the licensee of Beverage License No. 27-92, License Series 4-COP. The licensed premises is located on Highway 29 in Century, Escambia County, Florida. The Petitioner and Respondent, having stipulated to the truth and accuracy of those facts alleged in the notice to show cause, and based upon that stipulation, the undersigned Hearing Officer finds those facts set forth in A through F of this paragraph: On May 24, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate the laws of the State of Florida by delivering a controlled substance, to wit: cannabis to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews, contrary to Florida Statute 893.13 within Florida Statute 561.29. On June 14, 1982, Johnny Andrews, the employee of Charles D Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, cannabis, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews. On June 17, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, cannabis, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews. On July 11, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, LSD, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews. On August 6, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, LSD, to Actent P. A. Blackman while on the licensed premises of Charles D. Andrews. A. The negotiations and discussions about the May 24, 1982, transaction occurred inside Odom's Bar and the delivery took place through the drive-in window located on the north side of the licensed premises. On June 14, 1982, Beverage Officer Blackman drove to the drive-in window and asked Johnny Andrews if he was holding any pot. Johnny Andrews stated he was holding a 35 cents bag. After a short discussion about possible purchase of a larger quantity, Officer Blackman purchased the bag of marijuana for $35.00. The plastic bag of marijuana was in a brown paper bag and was handed to Officer Blackman through the drive-in window. The delivery of the marijuana to Officer Blackman on June 17, 1982, also took place at the drive-in window. Johnny Andrews handed Blackman a brown paper bag containing a Miller and a plastic bag of marijuana. On July 11, 1982, Officer Blackman observed three patrons smoking a marijuana cigarette in Odom's Bar, and this activity was observed. by the barmaid on duty. No attempt was made to stop the activity. Officer Blackman was offered the marijuana cigarette and he pretended to smoke it. At this time, Johnny Andrews approached Officer Blackman and offered to 7 sell him some "acid" (LSD). Officer Blackman agreed and was instructed to drive around to the drive- in window. He did so and the delivery of the "acid" took place through the drive-in window. On August 5, 1982, Officer Blackman, after being in the licensed premises, drove up to the drive-in window where Johnny Andrews offered to sell him some "acid" (LSD) Officer Blackman agreed to purchase and agreed to return on August 6 to pick up the "acid". on august 6, 1982, Officer Blackman returned to the drive-in window where Andrews handed him a bag containing six hits of acid. At the time of the conversations and purchases on June 14, August 5, and August 6, 1982, Johnny Andrews was on duty and working at Odom's Bar. Mr. Charles Andrews has owned Odom's Bar for the past five years and worked for the two previous owners. He began working at Odom's Bar 20 years ago. The bar is managed by Respondent and his wife. Johnny Andrews, referred to in the stipulation above, is the son of Mr. and Mrs. Charles D. Andrews, and during the time period of the incidents set forth in Paragraph 1, was working as an employee at the bar. This was the first summer he had worked at the bar. He was working while he was home from college, and has not been allowed to work at the bar since August, 1982, when he was arrested. Generally, Johnny Andrews would relieve Mr. and Mrs. Andrews and they would leave the bar while he was working. The Respondent, Charles D. Andrews, had no knowledge of the drug transactions his son was involved in. Prior to the incidents in question, Odom's Bar was operated by Mr. and Mrs. Andrews with the help of four women whom they employed. Mr. Andrews had previously given instructions to his employees that they were not to allow drugs of any type to be used or sold on the premises. On the date of Johnny Andrews' arrest, agents for the Division of Alcoholic Beverages and Tobacco thoroughly searched the licensed premises and found no drugs. The clientele of Odom's Bar is primarily middle- aged persons. Prior to the incidents described in Paragraph 1 above, the licensee, Charles Andrews, had had no other violations of the law or drug related problems at the licensed premises. Once Mr. and Mrs. Andrews were notified of the charges and arrest warrant for their son, they cooperated with the police and also aided them in completing their arrest of Johnny Andrews. Although the Respondent testified that he had cautioned his employees against drugs on the premises, there was no evidence that he took any steps to ensure that the premises were being properly supervised and legally operated in his absence. There was no arrangement or plan whereby the licensee monitored what was occurring at the licensed premises in his absence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That a Final Order be entered finding the Respondent in violation of Florida statute 561.29, imposing a civil penalty of $1,000,and suspending Respondent's beverage license for a period of 60 days. DONE and ENTERED this 26th day of April, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1983. COPIES FURNISHED: William A. Hatch, Esquire Mr. Howard N. Rasmussen Department of Business Director, Division of Alcoholic Regulation Beverages and Tobacco 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Mr. Charles D. Andrews Mr. Gary Rutledge Highway 29, Odom's Bar Secretary, Department of Business Century, Florida Regulation 725 South Bronough Street Tallahassee, Florida 32301
