Recommendation Based on the Foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered finding the Respondent guilty of violations of Florida Statutes 561.29(1)(a) and 561.29 (1)(c), that respondent be fined $1,000.00 and that his beverage license be suspended for a period of six (6) months or until payment in full of the $1,000.00 fine, whichever last occurs. RECOMMENDED this 5 day of September, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9575 FILED with the Clerk of the Division of Administrative Hearings this 5 day of September, 1984.
Findings Of Fact At all times material hereto Barnell and Louise Evans held beverage license No. 62-01451-2-COP for premises located at 1313 North Greenwood Avenue, Clearwater, Florida. They have held this beverage license since 1980. Following receipt of complaints regarding the sale and use of controlled substances, principally marijuana and cocaine, on the licensed premises, an undercover investigation of Foxy's Den was initiated. Keith B. Hamilton, Department of Law Enforcement (DLE) Investigator, visited Foxy's Den the evening of February 28, 1985, observed patrons smoking marijuana, purchased a $5.00 packet from a patron in the lounge of what was later tested and found to be marijuana, purchased paper to roll marijuana cigarettes from the barmaid after holding up the packet he had just purchased, and observed other transactions in what appeared to be the sale and use of marijuana on the licensed premises. Ira L. McQueen, another DLE Investigator, visited the licensed premises during the evening hours of March 21, 26, and 28 April 9, 10, 16, 18, 24, and 29 May 6, 9, 15, 21, and 22: June 20, 25, and 26: July 1, 8, 18, 23, and 29, 1985. During each of these visits he observed one or more of the following: Patrons smoking marijuana in plain view in the bar area patrons selling marijuana and cocaine to other patrons, including McQueen, in the bar area without much attempt at secrecy: bartenders and barmaids discussing the purchase of controlled substances with patrons and acting as intermediaries in those purchases packets of marijuana and money in exchange therefor passing between patrons in plain view of the bartender patrons obtaining change from the bartender, for example, a $20.00 bill, to purchase a nickel ($5.00) or dime ($10.00) packet of marijuana and McQueen being asked by the bartender if he, McQueen, was interested in buying marijuana or cocaine, and thereafter the bartender participating in the purchase of cocaine or marijuana by contributing money to the purchase and contacting the vendors. During these visits to the licensed premises by McQueen, he observed the licensee, Barnell Evans, on the premises only twice, but on each of these occasions McQueen observed the illegal use or sale of controlled substances on the premises which could also have been observed by Evans. Louise Evans has a full-time job at a local hospital and visits the licensed premises only for the purpose of taking the books and records home where she prepares the payroll, pays bills, and keeps the books for the business. Barnell Evans' principal occupation is construction. He is a stucco subcontractor and has maintained this business in Clearwater for a number of years. He has a good reputation in the building industry for honesty and integrity. Operation of Foxy's Den is a part-time occupation of Evans. Respondents had been told by a friend that controlled substances were being sold in the vicinity of the premises. One bartender and a barmaid were fired by Respondents for involvement with drugs on the premises after being warned that implication in drugs on the licensed premises would not be tolerated by the owners. One witness described Barnell Evans as naive regarding controlled substances. His appearance during these proceedings supports the conclusion that he is more naive regarding how to stop the use or sale of controlled substances than indifferent to such use or sale. The bartender on duty most of the evenings Foxy's Den was visited by McQueen, and who was involved in McQueen's purchases, is June Little, the nephew of Barnell Evans, who had hired Little because he was out of work, living with his mother, and "needed a job." Respondents have negotiated an agreement, Exhibit 4, with Curtis McCoy Security Agency for the latter to provide an unarmed uniform security guard on the licensed premises from 4:00 p.m. until midnight daily to detect and deter violations of the laws regarding sale and/or use of controlled substances on the licensed premises.
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 Introduction Respondent, Maximilliano N. Gonzales (respondent or Max) is the holder of alcoholic beverage license number 23-04935, Series 2-COP, issued by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). The license is used in conjunction with the operation of a lounge known as the Los Amigos Bar (bar or lounge) located at 5 Southwest 55th Avenue, Miami, Florida. Respondent and his companion, Olga, purchased the lounge in January, 1983 and have operated it since that time. Generally, either Max or Olga is on the premises supervising operations although Max was seriously injured by a customer about a year ago while breaking up an altercation and was forced to curtail his activities. Consequently, he has hired several other persons to assist him in managing the lounge during 1987. In the summer of 1987, the Division received a list of fifty Miami area establishments where the City of Miami police department suspected illicit drug transactions were taking place. RespondeV bar was one of these establishments. As a part of its investigation, the Division sent two undercover investigators (Garcia and Santana) to the lounge on August 21, 1987 to ascertain whether the police department's suspicions were well- founded. The two visited the bar on a recurring basis until October 8, 1987 when the Division issued an Emergency Order of Suspension which shut down the lounge and suspended respondent's license. That prompted the case sub judice. During their seven week investigation, Santana and Garcia observed a number of open and flagrant drug transactions and other illicit acts taking place on the licensed premises. In accordance with the parties' stipulation, these acts are summarized in chronological order in the findings below. For purposes of this order, Roberto was a patron of the bar, Carlos was its manager, and Loreno, Rosa, Lourdes, Eliza and Genny were barmaids. Further, all employees were on duty when the events herein occurred. The investigation While visiting the lounge on or about September 2, 1987, Santana and Garcia were approached by Lorena and Roberto and asked if they wished to purchase some cocaine. The investigators told Roberto that they would each be interested in purchasing a half gram of cocaine. Roberto then left the licensed premises and returned shortly thereafter and handed each investigator a half gram packet containing what appeared to be cocaine, a controlled substance. Garcia paid Roberto sixty dollars for both packets. The transaction took place "in front of the bar" and in the presence of Lorena and Rosa. The substance purchased was sent to a laboratory where an analysis confirmed it to be cocaine. On another visit to the lounge on or about September 4, 1987, Santana and Garcia were approached by Roberto concerning a purchase of cocaine. Garcia told Roberto he and Santana wished to order a half gram each. Roberto left the licensed premises and returned a few minutes later. He handed Garcia two small packets containing what appeared to be cocaine. Garcia then paid Roberto sixty dollars for both packets. The transaction took place in plain view while the investigators were seated at the bar and in the presence of Rosa. The substance purchased was subsequently sent to a laboratory where an analysis confirmed it to be cocaine. While at the premises on September 4, Santana and Garcia heard Roberto ask Rosa in a loud voice if she wanted to purchase some cocaine. A short (but loud) conversation between Roberto and Rosa then ensued while in the presence of approximately ten patrons and three other barmaids. Throughout the same evening, several patrons were observed purchasing what appeared to be cocaine from Roberto inside the licensed premises. On or about September 8, 1987, Santana and Garcia observed Roberto selling what appeared to be cocaine to numerous patrons inside the licensed premises. The investigators were later approached by Roberto who asked if they wished to purchase the drug. After Santana responded that he wished to buy some, Roberto handed him two packets containing what appeared to be cocaine in exchange for sixty dollars. The transaction took place in plain view at the bar and in the presence of Lorena, Lourdes and Eliza. In addition, Carlos was on the licensed premises when these activities occurred. The substance purchased by the investigators from Roberto was thereafter sent to the laboratory for analysis and was found to be cocaine. On or about September 10, 1987, while on the licensed premises, Santana and Garcia were approached on two occasions by Lourdes and Genny who solicited drinks from the officers. The investigators then went to the parking lot of the licensed premises, and were approached by Roberto concerning a purchase of cocaine. After Santana responded that he wished to buy some, Roberto handed Santana two small packets containing what appeared to be cocaine in exchange for fifty dollars. The substance was later laboratory analyzed and found to be cocaine. After entering the premises on or about September 14, 1987, the investigators were immediately approached by Lourdes who solicited the officers for an alcoholic beverage. They were later solicited in the same fashion by Genny. Later on, Santana met with Roberto and Rosa and asked if he could buy some cocaine. Santana handed Roberto sixty dollars and returned to his seat at the bar. Shortly thereafter, Roberto approached the investigators at the bar and handed Santana two small packages containing what appeared to be cocaine. The transaction took place in plain view at the bar and in the presence of Rosa and Genny. The substance purchased was laboratory analyzed and found to be cocaine. On or about September 17, 1987, the investigators returned to the lounge and met with Eliza concerning a purchase of cocaine. Eliza approached a patron who was seated at the other end of the bar and briefly conversed with him. Eliza returned to the investigators and told them that she could obtain cocaine for sixty dollars per gram, and that the cocaine would be delivered to the bar in approximately thirty minutes. Some thirty minutes later, Roberto entered the lounge and approached the investigators and asked if they desired to buy the drug. Santana told him he was interested in such a purchase and handed Roberto sixty dollars in exchange for two small packets containing what appeared to be cocaine. The packets were delivered on top of the bar counter in plain view and in the presence of Eliza and Lourdes. The substance purchased was laboratory analyzed and found to be cocaine. While at the lounge on September 17, Genny solicited two drinks from Santana. The two investigators also had extensive conversations with Eliza regarding the purchase of cocaine. On or about September 21, 1987, Santana and Garcia met with the manager, Carlos, concerning the purchase of cocaine from Roberto. During the conversation, Carlos was told several times that the investigators had purchased cocaine from Roberto inside the licensed premises. Carlos merely responded that "Roberto is a good guy, but he is not here." At no time did Carlos express disapproval of the cocaine transactions occurring within the licensed premises. On the same visit, barmaid Genny solicited two drinks from the investigators. The investigators also had conversations with Genny regarding the availability of cocaine on the licensed premises. However, they were informed by her that Roberto had not yet arrived. On or about September 22, 1987, Santana and Garcia visited the lounge and were approached by Eliza who asked whether they wished to purchase some cocaine. Eliza also informed them that Roberto had instructed her to call him on his beeper if any of his "regular customers" needed to purchase cocaine. She added that if Roberto could not come to the bar, she could sell them drugs obtained from her source who was present at the bar. After Santana and Garcia told her that they were interested in purchasing cocaine,, Eliza took a quarter from the business cash register and placed a telephone call on the lounge telephone. Eliza then returned and informed them that Roberto was on his way to the bar. A few minutes later, Roberto entered the lounge, approached the investigators, and handed Garcia two small packages containing what appeared to be cocaine. For this, Garcia gave Roberto fifty dollars. The transaction took place in plain view at the bar and in the presence of Eliza and Carlos. The substance purchased was sent to the laboratory where an analysis confirmed the substance to be cocaine. It is also noted that on this same visit, Genny solicited a drink from the investigators. On or about September 24, 1987, Santana and Garcia returned to the bar and were approached by Eliza who asked if they wished to purchase cocaine. She again informed them that Roberto had instructed her to call him on his beeper should the investigators wish to make a purchase. After Santana and Garcia placed an order for cocaine, Eliza went to the public telephone inside the licensed premises, and made a telephone call. After she returned she advised them that Roberto would be arriving soon. Approximately twenty minutes later, Roberto arrived at the licensed premises and told them that he had the cocaine that they had ordered. Roberto then gave Santana one gram of a substance that appeared to be cocaine in exchange for sixty dollars. He also handed Garcia one-half gram of a substance appearing to be cocaine in exchange for thirty dollars. The two transactions took place in plain view in the bar and in the presence of Eliza and Carlos. The substances purchased were laboratory analyzed and found to be cocaine. During this same visit, Genny solicited a drink from the investigators. On or about September 28, 1987, the two investigators returned to the lounge and were approached by Eliza and Genny who asked if they were interested in purchasing some cocaine. Eliza told them that Roberto was not in the bar but that she could call him on his beeper. Garcia requested that Eliza telephone Roberto and order a gram of cocaine. Eliza left for a few moments and was observed making a telephone call inside the licensed premises. A few minutes later, Roberto entered the lounge and handed Garcia two small packets containing what appeared to be cocaine. For this, Garcia gave Roberto fifty dollars. The transaction took place in plain view at the bar and in the presence of Eliza and Genny. The purchased substance was laboratory analyzed and found to be cocaine. On the same visit, Santana asked Roberto if he could purchase a gram of cocaine. Roberto said yes and told him the cocaine was stored in his car in the parking lot. The two then went to the car, where Roberto removed a package containing what appeared to be a half gram of cocaine, and gave it to Santana in exchange for twenty-five dollars. The substance was sent to the laboratory for analysis and was found to be cocaine. On October 1, 1987, Santana and Garcia again visited the lounge and were approached by Eliza who asked them if they wished to purchase cocaine. She also advised them that Roberto had not been in the lounge that day. Even so, she told them she could obtain the drug from another source. Garcia and Santana then placed orders for one and one-half grams of cocaine, respectively. After leaving for a few moments, Eliza returned and handed Santana and Garcia a brown paper napkin containing what appeared to be a gram and a half of cocaine. She was then paid seventy-five dollars by the investigators. The substance purchased was laboratory analyzed and found to be cocaine. On October 6, 1987, Santana and Garcia returned to the lounge and were asked by Eliza if they were interested in purchasing cocaine. Although she noted that Roberto had not been in the lounge that day, she told them she could obtain the drug from another source. Thereafter, Garcia and Santana each ordered one-half gram of cocaine from Eliza. After leaving the premises for a few minutes, Eliza returned and gave each investigator what appeared to be one- half gram of cocaine in exchange for fifty dollars. A laboratory analysis of the substance confirmed it was cocaine. When the above events occurred, there were no signs posted in the lounge warning patrons not to use drugs or to bring them on the premises. Further, the two investigators were never told by the manager or other employees to not use drugs, nor did they ever see a patron asked to leave because of having drugs in his possession. Max was seen in the lounge almost every day when the investigators were conducting their operation. However, there is no evidence that he personally saw a drug transaction take place, or that he was aware of any illicit activity. This is also the first occasion on which the licensed premises has been investigated. Mitigation At hearing Max and Olga appeared remorseful about this episode. They denied having knowledge of any drug transactions, and stated that around six months ago they had requested two Miami police officers to lend assistance in ridding their lounge of undesirable elements. They also told the police that "rocks" were being smoked in an adjacent parking lot. After the suspension of their license, the barmaids were fired. It is not clear whether Carlos was fired, but he only worked at the lounge for one or two months. A former manager who worked the first five months of 1987 testified he saw no drugs during his tenure, and that he was advised by Max to call the police if there were any problems. Because of his gunshot wounds, Max concedes it was necessary to hire other persons, perhaps too young, to oversee the lounge. He blames the incidents on those employees. If the license is reinstated, Max intends to shorten business hours and to have either himself or Olga on the premises at all times to ensure that no illicit activities occur. They also desire to sell the establishment, since they have invested their life savings in the business, and it represents their sole support.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of all charges in the Notice to Show Cause and that his License No. 230495, Series 2-COP, be REVOKED. DONE AND ORDERED this 2nd day of November, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 2nd day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4483 Petitioner: 1. Covered in finding of fact 1. 2. Covered in finding of fact 5. 3. Covered in finding of fact 6. 4. Covered in finding of fact 7. 5. Covered in finding of fact 8. 6. Covered in finding of fact 9. 7. Covered in finding of fact 10. 8. Covered in finding of fact 11. 9. Covered in finding of fact 11. 10. Covered in finding of fact 12. 11. Covered in finding of fact 13. 12. Covered in finding of fact 14. 13. Covered in finding of fact 15. 14. Covered in finding of fact 16. 15. Covered in finding of fact 17. 16. Covered in finding of fact 18. 17. Covered in finding of fact 19. 18. Covered in finding of fact 20. 19. Covered in finding of fact 3. 20. Covered in findings of fact 4 and 21. Respondent: Covered in findings of fact 1 and 3. Covered in findings of fact 1 and 3. Covered in finding of fact 21. Covered in finding of fact 21. 5.(a) Covered in finding of fact 2. Covered in finding of fact 3 to the extent the investigation was prompted by the City of Miami. The remainder is not supported by the evidence. Covered in finding of fact 22. Covered in finding of fact 21. Covered in finding of fact 22. Rejected since the evidence shows Lourdes and Rosa worked "many months" and "3-4 months," respectively. Covered in finding of fact 22. Covered in finding of fact 23. 6. Covered in finding of fact 23. COPIES FURNISHED: Thomas A. Klein, Esquire 725 South Bronough Street Tallahassee, Florida 32399-1020 Jose M. Herrera, Esquire Post Office Box 345118 Coral Gables, Florida 33114 Daniel Bosanko, Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Van B. Poole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire General Counsel The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact The parties stipulated to the factual matters set forth in the Petitioner's emergency order of suspension received by Respondent on July 16, 1987. Those facts are set forth in the following paragraphs 1 through 14. The Stipulated Facts The records of the Petitioner disclose that 2000 Collins Avenue, Corp., is the holder of Alcoholic Beverage License No. 23-02639, Series 4-COP, for a licensed premises known as the Five O'Clock Club, which is located at 2000 Collins Avenue, Miami Beach, Dade County, Florida. On or about May 20, 1987, Petitioner's Investigators O. Santana and H. Garcia, entered the licensed premises of the Respondent as part of an ongoing narcotics investigation. While on the premises, Investigator Garcia purchased crack cocaine in plain view at the bar from a patron named "Maggy". Two male bartenders named Joe and Paul were also present. On May 27, 1987, Investigators Santana and Garcia returned to the licensed premises of the Respondent known as the Five O'Clock Club. Bartender Joe was on duty at this time. At approximately 6:45 p.m., Maggy appeared and inquired of Investigator Garcia whether he wished to purchase more crack cocaine. Investigator Garcia indicated that he desired to do so and gave Maggy $40.00 for the purchase. Maggy left Investigator Garcia, returned shortly thereafter and placed the crack cocaine in a napkin on the bar counter. Maggy cut a small piece of the crack cocaine rock and placed it in her mouth in plain view of the bartender and patrons on the licensed premises. On June 3, 1987, Investigators Santana and Garcia again entered the Five O'Clock Club in an undercover capacity. Once on the premises, the investigators were approached by a white male patron later identified as "Vincent". He asked if the investigators wished to purchase any drugs. The investigators indicated that they would take any thing that was available. The investigators indicated that they would prefer some powder cocaine and if it was unavailable some rock cocaine. Vincent went to the end of the bar and engaged in conversation with an unidentified latin male. He returned to the investigators and indicated that he could get some rock cocaine immediately from someone in the bar. Vincent indicated that he could get three cocaine rocks for $40.00 and the investigators agreed to purchase them. Vincent then returned to talk to the latin male who was also joined by Joe, the bartender on duty . During conversation between these three, Joe indicated that they should be careful to whom they sold as he did not want to get arrested. Vincent then returned to the investigators and requested identification to indicate that they were not police officers. Investigator Garcia removed his wallet showing Vincent false identification which Vincent accepted as legitimate. Garcia gave $40.00 to Vincent who then walked back over to the latin male. Vincent inquired of Joe whether Investigators Garcia and Santana were "okay". Joe indicated that the investigators were okay and were regulars at the bar. Vincent then placed a napkin on the bar in front of the investigators. When the napkin was opened on the bar top, three crack cocaine rocks were revealed. This transaction occurred, and the cocaine rocks exposed, in plain view of patrons and employees on the licensed premises. Joe made no effort at any time to terminate the transaction. On June 4, 1987, Investigators Santana and Garcia returned to the licensed premises known as the Five O'Clock Club in an undercover capacity. At that time, bartender "Billy" was on duty. After a period of time, the investigators observed a black male walk up to Billy and indicate that he was going to "make his rounds." The black male then proceeded from patron to patron speaking in short conversations. When the black male reached an unidentified male patron playing an amusement device, the investigators heard the black male ask the patron if he wanted some "crack". The patron indicated yes and handed the black male $10.00. The black male handed a small, clear plastic bag containing a brownish rock to the patron. Shortly after this transaction occurred, Vincent again returned to the licensed premises. He approached the investigators and inquired whether or not they desired to purchase some additional crack. The investigators indicated that they did, and Garcia handed Vincent $40.00 for the purchase. Vincent left the bar and returned a period of time later and placed a napkin with three cocaine rocks on the bar in front of the investigators. While the cocaine rocks were still in plain view on the bar, Billy served a beer to Vincent. Billy made no effort whatsoever to either complain about or terminate the drug transaction taking place in plain view on the licensed premises. On June 8, 1987, Investigators Santana and Garcia again returned to the Five O'Clock Club in an undercover capacity. While on the premises, the investigators observed a white female walk into the bar and engage several patrons in short conversations. She was stopped and handed a $20.00 bill by another white female patron identified as "Candy". The first white female reached into the front of her pants and pulled out a small plastic bag containing a white powder which she then handed to Candy. Candy stated, "I'm going to the restroom and have some fun." Shortly after this transaction occurred, the investigators left the premises. After exiting the Five O'Clock Club , they were confronted by Vincent. Vincent inquired whether the investigators intended to buy some crack from him on this date. The investigators indicated they would, however they did not wish to make a purchase on a public street. Vincent suggested they go back into the Five O'Clock Club and conduct the transaction at the bar. They did. While seated at the bar, Investigator Garcia gave Vincent $40.00. Billy, the bartender then on duty, stated to Vincent, "you are a great salesman." Vincent then left the bar and returned shortly thereafter placing 3 pieces of rock cocaine on the bar for the investigators and suggested that it was the "best crack on Miami Beach." After the investigators took possession of the cocaine, Billy remarked, "do you really like that stuff?" On June 15, 1987, Investigators Santana and Garcia again returned to the licensed premises of the Five O'Clock Club in an undercover capacity. After a period of time on the licensed premises, the investigators were unable to locate any patrons with whom they had previously transacted drug purchases. Upon leaving the premises, the investigators were approached by an individual known as "Eita", who had been previously introduced to them by Vincent. Eita and the investigators went back into the Five O'Clock Club. Eita informed the investigators that Vincent was incarcerated and that he, Eita, could obtain crack cocaine for them. The investigators agreed and provided Eita $40.00 . Eita left the premises and returned shortly with three cocaine rocks. Eita, in the presence of Billy the bartender, placed the three cocaine rocks on the bar of the licensed premises. He then wrapped the cocaine rocks in a brown piece of paper. Investigator Garcia picked the rocks up and placed them in his pocket. This transaction occurred in the immediate presence of Bill and other patrons on the licensed premises. On June 17, 1987, Investigators Santana and Garcia again returned to the Five O'Clock Club in an undercover capacity. At this time the licensed premises were being serviced by a barmaid known as "Toni". Eita again appeared on the licensed premises. Eita offered to sell crack cocaine to Investigators Santana and Garcia. The investigators agreed and in furtherance of the transaction provided Eita $40.00. Eita left the premises and returned shortly thereafter and seated himself next to the investigators. Eita opened his purse and began to place pieces of rock cocaine on the bar top. While this transpired Toni approached the group and placed a beer in front of Eita. Toni observed as Eita took three cocaine rocks and wrapped them in a cigarette wrapper and handed them to Investigator Garcia. Toni made no effort to either complain about or otherwise terminate the drug transaction taking place on the licensed premises. On the same date as indicated in paragraph 8 above, Investigators Santana and Garcia approached a patron known as "Paco" while on the licensed premises of the Five O'Clock Club. They engaged in a casual conversation with Paco who was known to them as a crack dealer in the Miami Beach area. They inquired of Paco whether or not he could obtain crack cocaine for them and he replied that he could. The investigators provided Paco $30.00. Paco handed Investigator Garcia three cocaine rocks which Garcia placed on the bar and subsequently wrapped in a napkin. This transaction occurred without complaint on the licensed premises in the plain view of Toni and other patrons. On June 22, 1987, Investigators Santana and Garcia returned to the licensed premises in an undercover capacity. Bartender Billy was on duty at this time. After a period of time, Paco arrived on the licensed premises and inquired of the investigators whether they needed "any thing" today. Investigator Garcia asked Paco if he could obtain some rock cocaine on this date. Paco indicated that he could. Paco left the premises, returned shortly thereafter and gave Investigator Garcia a large cocaine rock. Paco then demanded $40.00. This transaction took place in plain view at the bar in the presence of Billy and other patrons in the licensed premises. At no time did Billy complain about or terminate the transaction. On June 24, 1987, Investigators Santana and Garcia entered the licensed premises of the Five O'Clock Club in an undercover capacity. Bartender Joe was on duty at this time. Paco was on the licensed premises. The investigators listened while several other patrons approached Paco in an effort to obtain rock cocaine. Paco indicated that rock cocaine was presently unavailable. After a period of time, a black male came into the licensed premises and sat by Paco. The black male provided Paco several cocaine rocks which he distributed to the patrons who had made the previous requests. Further, Paco provided Investigator Garcia with a large cocaine rock for the purchase price of $30.00. These transactions took place at the bar and in the presence of Joe and other patrons. At no time did Joe object to the drug transactions taking place at the bar of the Five O'Clock Club On the same date identified in paragraph 11, shortly after the foregoing transactions occurred, Eita came into the Five O'Clock Club. Eita asked the investigators if they wished to purchase any rock cocaine and they indicated that they did. They provided Eita $35.00 whereupon he left the premises. Eita returned shortly thereafter and placed cocaine rocks on the bar in plain view of Joe and other patrons at the bar. The investigators then took possession of the cocaine. At no time did Joe protest the occurrence of this transactions. On July 13, 1987, Investigators Santana and Garcia returned to the licensed premises known as the Five O'Clock Club in an undercover capacity. While seated at the bar, the investigators purchased two cocaine rocks from a patron known as "Orlando". Bartender Billy was on duty at this time. The transaction took place at the bar in plain view of Billy and other patrons on the licensed premises. At no time did any employee of the bar make an effort to terminate the transaction. All substances purchased at the licensed premises and identified as cocaine have been laboratory analyzed and determined to be cocaine. Additional Facts In addition to the above stipulated facts, Respondent presented testimony upon which the following factual findings are based. Myrtle Klass is the predominant shareholder of the respondent, 2000 Collins Avenue Corporation. Mrs. Klass is 88 years of age, is in declining health, and requires the services of a full-time caregiver. Mrs. Klass's late husband purchased the building in which the Five O'Clock Club is located in the late 1950's. Upon his death a trust fund was created, 75% of which goes to Mrs. Klass and 25% of which is divided between the Klass's two children, Mrs. Marshall and her brother. Her brother, because of health problems, is totally dependent on the income from such trust fund. Portions of Mrs. Marshall's share of the trust fund are passed on to her children, one of whom is likewise dependent on such income. At the time of acquisition of the 2000 Collins Avenue building and license No. 23-2639, the neighborhood was a substantially better locale than at present. The neighborhood has significantly declined and is populated by "street people" whose involvement in drug dealing is endemic. Mrs. Klass, since 1963, has utilized the services of a certified public accountant-attorney and a property manager to manage the overall operation of the licensed property. She has utilized the same "on premises" manager since 1963 to supervise the day to day operation of the Five O'Clock Club. There have been no prior violations during the approximate 25 years in which the premises have been operated in this manner. The Klass family trust sold the building in early 1987 because of the decline in the neighborhood. The Five O'Clock Club was due to be closed permanently in September 1987. At the time of the service of the Petitioner's emergency order, license No. 23-2639, services 4-COP, was the subject of a contract for sale for $45,000 to the owner of a family restaurant located elsewhere on Collins Avenue. Because of the emergency order of suspension, the contract could not be completed. Because of Mrs. Klass's age and health, her daughter, Doris Marshall, represents that Mrs. Klass has no desire to hold any alcoholic beverage license, but only desires to sell the existing license so as not to deprive the trust and the persons dependent on the income therefrom of an asset valued at $45,000.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by Petitioner revoking Respondent's alcoholic beverage license No. 23-2639, series 4-COP, subject first to a suspension of 120 days or such lesser period of time within which Respondent may sell the license, in an arms length transfer, to a duly qualified transferee who will agree to 1) operate such license at a location other than the present licensed premises 2) not employ any personnel of the Respondent that were present on the premises during the incidents set forth in the Notice To Show Cause and 3) operate the license under a name other than the "5 O'Clock Club." Upon completion of the license transfer in accordance with the above stated conditions or the expiration of the 120 day suspension period, whichever occurs first, the license, as to the Respondent in this case, shall stand revoked. DONE AND RECOMMENDED this 29th day of February, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 1988. APPENDIX The following constitutes my ruling on proposed findings of fact submitted by the Respondent. All stipulated facts are included in findings numbered 1-14. Accepted in finding number 15. Accepted in finding number 16. Accepted in finding number 17. Accepted in finding number 18. Accepted in finding number 19. Accepted in finding number 20. COPIES FURNISHED: Douglas Moody, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Harold F. X. Purnell, Esquire OERTEL & HOFFMAN, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Daniel Bosanko, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Van B. Poole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact 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 The issues to be resolved in this proceeding are whether the Respondent has committed violations of Florida statutes pertaining to alcoholic beverage licenses, and, if so, what penalty should be imposed. The Petitioner contends that Respondent violated the provisions of Sections 561.29(1)(a) and (c) by condoning and/or negligently overlooking trafficking in illegal, controlled substances on his licensed premises. The Respondent contends that he took all reasonable steps to prevent any unlawful activities from occurring on his licensed premises, and that to the extent any unlawful activities were conducted on his licensed premises, he neither condoned nor negligently overlooked them.
Findings Of Fact Robert Pauley is the holder of Alcoholic Beverage License No. 60-1229, Series 2-COP. The licensed premises is located at 4458 Purdy Lane, West Palm Beach, Florida, and is operated under the name "The Treehouse Saloon". The Treehouse Saloon is a "topless bar". It offers so-called adult entertainment to members of the public as well as beer and wine for consumption on the premises. The entertainment consists of women who dance nude or semi- nude. The premises includes numerous tables and a bar where patrons sit, pool tables, restrooms, an office where the Respondent conducted business, a disc jockey's booth, and a dance floor where the women performed. The Treehouse Saloon has been closed since June 8, 1983, when the Petitioner issued an emergency suspension order and notice to show cause. During May and June, 1983, John T. Slavin, an agent employed with the Palm Beach County Sheriff's Department, was acting in an undercover capacity. He took on the appearance and wore clothes compatible with the role of a member of a motorcycle gang. He had been directed to frequent topless lounges in Palm Beach County and to work undercover to determine if illegal drug activities or prostitution were occurring. On May 5, 1983, Slavin entered the Treehouse Saloon. During the evening, he made friends with "Duane" who was working in the saloon as a disc jockey. Slavin asked Duane about the prospects of purchasing cocaine. Duane told Slavin that that could be arranged and that it would cost $60 for three- fourths of a gram. Slavin gave Duane $60. Duane left the disc jockey area and approached one of the dancers whose name was "Barbara." Duane then returned to Slavin and advised him that the "product" was on the way. A short time later, Barbara approached Duane, then Duane brought a matchbox to Slavin. The matchbox contained a transparent plastic bag with white powder in it. After he left the bar, Slavin 7 field-tested the "product" then turned it over to a chemist employed with the Sheriff's Department. The "product" was cocaine. The sale was made at approximately 2:00 a.m. On or about May 12, 1983, Slavin entered the Treehouse lounge at approximately 11:45 p.m. He saw Duane and asked whether Duane was "playing oldies." This was a signal meaning that Slavin wished to purchase more cocaine. Duane said that he was "playing oldies nightly" and asked Slavin how much he wanted. Slavin handed Duane $60. A short time later, Duane delivered a cigarette pack to Slavin and told Slavin that a cigarette was missing. Slavin found two transparent bags containing a white powder inside the cigarette pack. Slavin later field-tested the contents and delivered them to the chemist. The product was cocaine. On or about May 13, 1983, Slavin returned to the Treehouse Saloon at approximately 11:30 p.m. Shortly after mid- night on May 14, he approached Duane's booth and asked if they could do business. Duane said "yes," but that it would take a little longer for the delivery due to a special event (a "banana eating contest") that was being presented. Slavin gave Duane $60 which Duane put in his pocket. Later that morning, Duane put a pack of matches in Slavin's pocket. Slavin went to the men's room and found two plastic bags with a white powder inside. He later field-tested the contents then delivered them to the chemist. The product was cocaine. On or about May 18, 1983, Slavin returned to the Treehouse Saloon at approximately 10:30 p.m. He saw Duane at the bar and asked him why he was not in the disc jockey's booth. Duane indicated that he was squabbling with the management and would be taking some time off. Duane asked Slavin if he was interested in "some white" which is a "street name" for cocaine. Slavin asked if Duane could get him a gram. Duane said that he could. Slavin gave Duane $80. Later, Duane handed Slavin an aspirin tin. There were two small bags of white powder inside the tin. Slavin later field tested the contents then delivered them to a chemist. The product was cocaine. On this occasion, Duane said that he would be away for a while. Slavin asked Duane who could supply "coke" (cocaine) in Duane's absence. Duane named three dancers: "Linda," "Doree," and "Barbara." Although Duane was not in the disc jockey's booth on that occasion, he did appear to be directing other employees, including dancers, in their activities. On or about May 19, 1983, Slavin returned to the Treehouse Saloon at approximately 1:00 a.m. He talked to a dancer called "Doree." Doree's actual name is Diana Donnell. Since then, she has been arrested. Slavin asked Doree if she could get him some "coke." She told Slavin that it would cost $40 for a half gram. Slavin asked if he could buy a full gram, and she said "yes." Doree then performed as a dancer, after which Slavin gave her $80. At that time, he was standing right next to the dance floor. A short time later, Doree returned with two small plastic bags which contained a white powder. Later, Slavin field-tested the powder and turned it over to the chemist. The product was cocaine. On or about May 25, 1983, Slavin returned to the Treehouse Saloon shortly after noon. He sat at the bar next to a dancer whose name was "Samantha." Slavin asked her where Doree was, and was told that Doree was not working there anymore. Slavin asked Samantha if she could help him buy a half gram of cocaine. She said "yes" and that it would cost $40. Slavin placed $40 on the bar between them. She placed a cigarette pack on the bar and told him that there was a half gram inside. She took the money. The witness examined the contents of the cigarette pack, removed a plastic bag which contained a white substance, and returned the cigarettes to Samantha. Samantha told Slavin that he could buy from her in the future. Later, Slavin field-tested the product and delivered it to the chemist. The product was cocaine. Later in the day on May 25, 1983, at approximately 7:30 p.m., Slavin returned to the Treehouse Saloon. He saw Samantha and asked her if he could buy another half gram. She told him it would cost $40. Slavin gave her $40 and she went into the dressing room that was on the premises. When she came out, she gave him a transparent package that had white powder inside. Later, Slavin field-tested the contents and delivered it to the chemist. The product was cocaine. On May 31, 1983, at approximately 10:45 p.m. Slavin returned to the Treehouse Saloon. He talked to a dancer known as "Mama She She." Slavin asked if Samantha was available and was told that she was not there. Maid She She, whose actual name is Michelle West, said that she had "done a line of coke" earlier which was "dirty," but had given her a "good high." She told Slavin that a half gram would cost $40. Shortly after midnight, Slavin gave her $40. He did not receive anything from Mama She She until approximately 3:50 a.m. On several occasions in the interim, Slavin talked to Mama She She about it, but she indicated she was having some difficulty obtaining the cocaine. Eventually, she gave him a clear bag that had powder inside. She told Slavin that she would be working the next day (June 2) from 11:00 a.m. until 7:00 p.m. and that the witness could buy more then. Later, Slavin field-tested the contents of the bag and delivered them to the chemist. The product was cocaine. On or about June 2, 1983, Slavin returned to the Treehouse Saloon at approximately 3:30 p.m. He saw Mama She She and talked to her. She asked him if he was interested in "a half or a whole." He said "A half." She returned a bit later and said that there was nothing there then, but that if he would wait, she could probably get it. Later, she told Slavin that she was a bit reluctant to sell to him because he had not given her a "line" from his purchases. Slavin told Mama She She that he was buying it for friend to whom he owed money. At approximately 7:30 p.m., Mama She She still had not delivered anything to Slavin. She asked if he could drive her home, which he agreed to do. As they were leaving, another dancer, "Barbie," came in. Barbie asked Slavin if he recognized her. She told him that he had gotten cocaine from her through Duane in the past. Slavin asked if he could get a half gram, and Barbie said "yes." Slavin then took Mama She She home and returned at approximately 8:30 p.m. Barbie gave him a plastic bag with white powder inside. Slavin later field- tested the product and delivered it to the chemist. The product was cocaine. All of the women that Slavin dealt with at the Treehouse Saloon were dancers. They were either scantily clad or nude. They would dance for three songs on the dance floor, and customers would put money in their garter belts. A bartender and a bouncer were also present at the saloon. From time to time, a bartender or the disc jockey would tell a dancer it was her turn. The Respondent had hired the dancers as "independent contractors." Whatever their status at the Treehouse Saloon, the dancers were subject to direction from the Respondent or his managers. A list of rules for dancers provided, among other things, that no hard liquor or drugs were allowed on the premises and that the first offense would result in termination. The dancers were required to sign an "independent contractor agreement." The contract provided that dancers would not be considered an agent or employee of the saloon for any purpose. Despite these provisions, the dancers were clearly subject to direction by the bartender or disc jockey at the saloon. In addition, they were required to wait on tables, to circulate among customers, to work their complete shifts, to tip the bartender, and to perform other functions. They were clearly subject to the supervision and control of the Respondent, the bartender, or the disc jockey. When Slavin made the cocaine purchases described above, he communicated with Duane or the dancers in a normal conversational tone. A normal conversational tone in the Treehouse Saloon would he somewhat loud because loud music was constantly playing. The transactions were made in a somewhat secretive manner. A person who was carefully observing or monitoring the premises, however, would necessarily have been suspicious of Slavin, Duane, and the dancers. The Respondent did post rules in various locations of the Treehouse Saloon which provided that illicit drugs were not allowed. His dancers' rules provided to the same effect. Other than that, it does not appear that the Respondent took any steps to properly monitor his premises to assure that such activities were not occurring. Given the number of transactions and the nature of the transactions undertaken by Slavin, the transactions would have been observed by a manager who was reasonably observing and monitoring the premises. There is no evidence from which it could be concluded that the Respondent was directly involved in any drug trafficking or that he condoned it. The evidence does, however, establish that he was negligent in not properly monitoring the licensed premises to assure that illegal activities were not being undertaken there.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered by the Division of Alcoholic Beverages and Tobacco, Department of Business Regulation, finding the Respondent guilty of the violations alleged in the notice to show cause and suspending his beverage license for a period of two years. RECOMMENDED this 14 day of July, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 14th day of July, 1983. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Albert R. Wilber, Jr., Esquire 315 Third Street, Suite 301 West Palm Beach, Florida 33401 Mr. Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact At all times relevant to this case, Joel Albert Collinsworth held a valid Division of Alcoholic Beverages and Tobacco liquor license for the premises known as the Silver Bullet Bar and Lounge (hereinafter licensed premises), located at 12 North Ninth Street, DeFuniak Springs, Walton County, Florida. Petitioner's Exhibit 1. The license held by Respondent is number 76- 330, Series 2-COP and is limited to the sale of beer and wine on the licensed premises. Investigator Don Taylor is a police officer with the DeFuniak Springs, Florida, Police Department. On Thursday, December 10, 1987, Investigator Taylor entered the licensed premises and seized glass containers of liquid that were marked as Petitioner's Exhibits 2, 3, and 4. The containers were only partly full. Investigator Taylor, has on many occasions, observed, smelled and tasted distilled spirits (and testified that the liquid was whiskey and not wine or beer.) Respondent, Joel Albert Collinsworth was on the licensed premises at the time Exhibits 2, 3, and 4 were seized and was immediately placed under arrest by Investigator Taylor. The three (3) glass containers were taken to the Florida Department of Law Enforcement laboratory in Pensacola, Florida for testing and identification of the liquid contained in the three (3) bottles. The lab results shows that the liquid contained a high concentration of ethyl alcohol. Petitioner's Exhibit 5. Investigator Roy Harris, an 18 year veteran of the Division testified that the concentrations of alcohol listed in Exhibit 5 were sufficiently high that they could not be anything other than distilled spirits. The 2-COP license held by the Respondent allowed only consumption on the premises of beer and wine. The license does not permit possession, consumption or sale of distilled spirits on the licensed premises. The evidence showed that distilled spirits were being possessed and/or consumed on the premises owned and operated by Respondent under his beverage license. Such possession and consumption constitute a violation of Section 562.02, Florida Statutes. Petitioner requested that Respondent's license be revoked for the violation of the Liquor Law. No mitigating facts were presented by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is therefore RECOMMENDED: That Respondent is guilty of the offense set forth in the Notice to Show Cause issued on January 13, 1988, and that Petitioner should revoke the license of Joel Albert Collinsworth, d/b/a Silver Bullet Bar and Lounge. DONE and ENTERED this 22nd day of July, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1295 Petitioner's Proposed Findings of Fact contained in paragraph 1, 2 and 3 have been adopted in substance in so far as material. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 W. Paul Thompson, Esquire Post Office Drawer 608 DeFuniak Springs, Florida 32433 Lt. Tom Stout, District Supervisor Division of Alcoholic Beverages and Tobacco 160 Governmental Center Suite 401, 4th Floor Pensacola, Florida 32501 Van B. Poole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
