The Issue The issue for consideration is whether Respondent's alcoholic beverage license should be disciplined because of the alleged misconduct outlined in the Notice to Show Cause filed by Petitioner.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent, Jose Manuel Acosta, was doing business at 425 Northwest 12th Avenue, Miami, Dade County, Florida, as La Romanita Cafeteria under a series 2-COP alcoholic beverage license number 23-03308. Orlando Huguet is an investigator with the Petitioner, DABT, and has had prior experience with the Coral Gables Police Department and as an investigator with the United States Air Force. During the course of his employment with the DABT, he has been involved in several undercover operations and is fully familiar with the appearance and properties of crack (rock) cocaine. He is also aware that it is a very addictive drug and that it is usually packaged in small cellophane bags but may come in other containers or not be packaged at all. During the period of mid-August to mid-October, 1987, Mr. Huguet, along with other law enforcement investigators (LEI) of DABT and agents with the Metropolitan Dade County Sheriff's Department and the Miami Police Department were involved in an undercover investigation of Respondent's place of business as part of an investigation of drugs in bars in Dade County. During the investigation, they would enter the premises in the afternoon or evening and attempt to purchase crack cocaine from the licensee, employees or patrons of the establishment. La Romanita's is primarily frequented by Spanish speaking customers. On August 28, 1987, Huguet entered La Romanita in an undercover capacity in the evening along with a confidential informant (CI). This confidential informant was utilized by Huguet in several undercover investigations. Huguet and the CI took seats at the bar counter and ordered drinks. Huguet observed the licensee, Jose Manuel Acosta, standing in front of him, behind the counter. Huguet overheard the CI ask Acosta if he (Acosta) had any drugs for sale today. Acosta commented that he had run out of drugs, but to try him tomorrow. Acosta continued to discuss drugs with Huguet, the CI, and other patrons. Subsequently, a black Latin male named Miguel approached Huguet and the CI and inquired if they were looking for drugs. Later on Huguet purchased cocaine ("perico" in Spanish) from Miguel outside the licensed premises. On August 29, 1987, at approximately 11:30 p.m., Huguet and the CI entered the licensed premises and observed the owner, Jose Manuel Acosta, sitting drown at a table with another man identified as Flaco. Huguet and the CI engaged Acosta in conversation which revealed that Acosta would provide one- half ounce of cocaine to the CI and Huguet at a future date. Subsequently, Huguet and the CI left the premises. On September 3, 1987, Huguet and the CI entered the establishment in the evening and approached the bar counter area and engaged in general conversation with a barmaid. Huguet observed a white Latin male, Tobacito, walk to the end of the bar counter, open a brown paper bag, and retrieve two pieces of suspected crack cocaine. Tobacito gave the suspected cocaine to a white Latin male in an open manner and the white Latin male gave Tobacito $20.00. Subsequently, Huguet instructed the CI to try to make a drug purchase from Tobacito. The CI approached Tobacito who reached into the same brown paper bag and took two pieces of rock ("piedra" in Spanish) cocaine and gave them to the CI in exchange for $20.00. Huguet witnessed this entire transaction and took the cocaine from the CI immediately after the drug transaction. Tobacito approached the table where Huguet and the CI were sitting, which is located on the east side of the premises. Tobacito negotiated a drug transaction with Huguet for $10.00 and then left the licensed premises, returning shortly thereafter with the cocaine. When Huguet received the piece of crack cocaine from Tobacito, he held it up to eye level, examined it, and then placed it in his front pocket. A short time later Huguet walked over to the bar counter, took a seat next to a patron named Warapito, and engaged in a general conversation about drugs. Warapito bragged that he sold the best rocks in town and stated they would enhance Huguet's sexual performance. During this conversation, Huguet retrieved the rock cocaine he had previously purchased and dropped it on the floor in front of several patrons. Warapito and another patron retrieved the cocaine and returned it to Huguet. This incident was observed by an employee, Papo, who is the son of the licensee, Jose Manuel Acosta. Thereafter, Tobacito came over to Huguet and Warapito and began to argue with Warapito over who sold the best rock cocaine. This conversation took place in front of several patrons and Papo. On September 4, 1987, Huguet entered La Romanita in the early afternoon and took a seat at one of the tables on the east side of the premises. Huguet engaged in conversation with an employee, Pepito, relative to cocaine. Pepito stated that he could get one-half ounce, but that he would have to make a phone call first since it was not on the premises. During this time, Huguet noted that Pepito did the duties and functions of an employee (serving patrons, working behind the counter, using the cash register and taking orders). Pepito proceeded to make the phone call and a short time later the licensee, Jose Manuel Acosta, entered the licensed premises carrying a large box which he gave to Pepito who took the box to the storage room. Within seconds Pepito exited the storage room, came to Huguet's table and handed him a baggie of cocaine wrapped in toilet paper. Huguet put the baggie on the table and unwrapped it to conf irm that it was cocaine. Huguet rewrapped the baggie, placed it in his right front pocket and handed Pepito $320.00. During this entire transaction, Huguet observed the licensee go by his table several times. On September 16, 1987, Huguet entered La Romanita at approximately 9:20 p.m. and observed that there were several patrons and two Latin female employees on duty. Huguet took a seat at a table located in the southeast area of the licensed premises and engaged in conversation with patron Tobacito. Huguet and Tobacito negotiated a cocaine transaction and Huguet gave $20.00 to Tobacito who exited the licensed premises, returning a short time later. Tobacito gave the crack cocaine to Huguet who held it up to eye level to examine. At this point, a patron, Jacquin, who was sitting at an adjacent table, offered Huguet a piece of aluminum foil in which to wrap the crack cocaine. Huguet took the foil from Jacquin and wrapped it around the cocaine. This transaction was observed by several patrons, as well as the two female employees. On September 18, 1987, Huguet entered the licensed premises and took a seat at the bar counter where he struck up a conversation with patron Tobacito. Tobacito asked Huguet if he wanted anything and Huguet responded that he was willing to purchase some cocaine. Tobacito stated that he had only one piece of crack cocaine left, but was willing to sell it for $20.00. Huguet agreed and Tobacito then left the licensed premises. Huguet approached Warapito and engaged in general conversation about cocaine. Warapito took a small piece of rock cocaine from his pocket and offered it to Huguet for $22.00. Huguet gave Warapito the $22.00 and in return received the rock cocaine. This transaction was observed by employee, Isabel, who had been waiting on the two patrons. Huguet noted that Isabel performed the functions and duties of an employee (waiting on customers, working behind the counter and using the cash register). A short time later Tobacito entered the licensed premises and handed Huguet a piece of rock cocaine. Huguet placed the cocaine on top of the bar counter and proceeded to examine it in plain view of employee Isabel. Huguet then placed the cocaine in a napkin, put it in his right front pocket, and paid Tobacito $20.00. On September 24, 1987, Huguet entered La Romanita and took a seat at the bar counter. Warapito approached Huguet and asked if he needed any rocks (cocaine). Huguet stated that he did and gave Warapito $20.00. This conversation took place in front of employee, Papo. Papo proceeded to leave the bar counter area, enter the women's restroom and lock the door. Another employee, identified as Chino, noted Papo's actions and advised Huguet that if Huguet ever wanted to "shoot up, snort up, or smoke up," that Chino would let him have the key to the women's bathroom. Huguet noted that Chino performed the duties and responsibilities of an employee (serving customers, working behind the counter and using the cash register). A short time later, Warapito reentered La Romanita and gave Huguet a large piece of rock cocaine. Huguet placed the cocaine on top of the bar counter, examined it, and proceeded to wrap it in a napkin in front of employees Chino and Alisa. Huguet stated that Alisa also performed the duties of an employee (waiting on customers, working behind the counter and using the cash register). Tobacito subsequently approached Huguet and handed him two pieces of rock cocaine which Huguet placed on top the bar counter and examined. He then wrapped the cocaine in a napkin. Alisa and Chino were in a position to observe this transaction as well. A short time later, Warapito and Tobacito began to argue over who sold the better rock cocaine. A few minutes later Huguet paid Tobacito $20.00 for the cocaine he had received and exited the licensed premises. On September 29, 1987, Huguet entered La Romanita and approached Tobacito who was sitting on a bar stool next to the counter. Tobacito told Huguet that he was sorry but that he had run out of rocks (cocaine). Huguet then called Warapito over to where he was sitting and asked him if he had any drugs. Warapito replied that he could get Huguet cocaine but would need $30.00 up front. Thereupon, Huguet handed him the money and Warapito exited the premises. This conversation took place in front of several patrons and an employee, Papo, who was standing behind the counter making change from the cash register. A short time later, Warapito entered La Romanita and handed Huguet two pieces of rock cocaine. Huguet took the cocaine, held it up to eye level to examine in front of several patrons and an employee, Chino, and then placed the cocaine in a napkin he had retrieved from the counter. On September 30, 1987, Huguet entered the premises and met with Warapito. Warapito offered to sell Huguet one gram of cocaine for $50.00 but stated that he would need the money up front. Huguet gave Warapito the money whereupon Warapito exited the premises. A short time later Huguet approached the bar counter and took a seat next to Tobacito. Tobacito advised Huguet that if he (Huguet) wanted any drugs that he (Tobacito) had two pieces of rock cocaine left and would sell them for $20.00. Huguet agreed to buy the cocaine whereupon Tobacito exited the premises. A short time later, Tobacito returned and presented the cocaine to Huguet in front of employees Alisa and Chino. Huguet took the two pieces of rock cocaine, examined them and made the comment that they were very dirty. Tobacito exclaimed that he had dropped the cocaine on the way back to La Romanita because he had been frightened when he had observed police officers nearby. Huguet then paid Tobacito the $20.00. A short time later, Warapito returned to the premises and stated that he had been unable to find any cocaine and returned the $50.00 to Huguet. On October 1, 1987, Huguet entered La Romanita and proceeded to the juke box area of the premises to have a conversation with Warapito. Warapito advised Huguet that he would try to obtain one gram of cocaine for him for $50.00. Huguet and Warapito discussed the drug purchase in further detail. Standing next to Huguet and Warapito was Jose Manuel Acosta, the licensee, who was in a position to hear the conversation. Subsequently, Warapito told Huguet that he thought he was a police officer. Huguet denied this allegation and then departed the licensed premises. On October 6, 1987, at approximately 12:15 p.m., Huguet entered La Romanita and approached Tobacito and Warapito at the bar where they were talking to employee Papo. Tobacito asked what Huguet wanted and Huguet responded that "twenty" would do. Huguet gave Tobacito the money and Tobacito exited the premises. Warapito subsequently told Huguet that he (Warapito) was going to secure a half gram for a friend of his and asked if Huguet wanted any cocaine as well. Huguet replied that he would like one gram and gave Warapito $50.00. A short time later, Tobacito reentered La Romanita and handed Huguet two rocks of cocaine in front of Papo. Huguet examined the cocaine at eye level, took a napkin from the bar counter and wrapped up the cocaine. A few minutes later, Warapito reentered La Romanita and gave Huguet back his money stating that he had been unable to locate any cocaine. All of the events referred to herein, with the exception of the drug purchase on August 28, 1987, took place on the licensed premises during business hours when other employees and patrons were present on the licensed premises. None of the employees or patrons who sold or delivered cocaine to Officer Huguet, or allowed others to do so, ever expressed any concern about any of the drug transactions and took no action to prevent or discourage drug transactions. The licensee, Jose Manuel Acosta, stated that he was neither present during most of the dates set out in the Notice to Show Cause nor did he hear or observe any drug transaction. He denied ever meeting or speaking with Officer Orlando Huguet about any cocaine transactions. He knew that drugs were easily obtainable in the area of town in which La Romanita was located, but did not believe that he had any drug problems on his premises. In light of the detailed testimony of Officer Huguet, which was recorded in his report, stating he and the CI spoke with Mr. Acosta on two occasions about purchasing cocaine and that on one other occasion Mr. Acosta was in a position to observe a cocaine transaction, Mr. Acosta's statements are not credible. Mr. Acosta did not perform polygraph examinations or background checks on his employees and did not use a security guard on the licensed premises. The premises contained no signs or other form of documentation revealing to patrons the policy of the management relative to drug possession, sale or usage. Instead, the only sign on the licensed premises stated that customers should not detain themselves if they were not going to consume. Mr. Acosta denied that Pepito, Isabel or Chino were his employees. Instead, he stated that he employed his wife, his son Papo, other relatives and occasionally people to help him lift things on his licensed premises. He did admit that Alisa was his employee for several weeks. His only policy concerning drugs was to tell his employees that it was illegal and to call "911" if there was a problem. He noted that he had received letters from the Division of Alcoholic Beverages and Tobacco but did not read them because he did not know English. At all times material to this case, Papo, Pepito, Isabel, Chino and Alisa were employees on the licensed premises of La Romanita. They performed the functions and duties of employees in that they served customers, worked behind the counter, waited on tables and used the cash register. The great majority of drug transactions related herein took place in plain view on the licensed premises of La Romanita. The exchanges of drugs and money in conjunction with the open conversations engaged in by employees, patrons and Officer Huguet demonstrated a persistent pattern of open and flagrant drug activity. The instances occurring at La Romanita were sufficiently open to put a reasonably diligent licensee on express notice that drug sales were occurring on the licensed premises.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the alcoholic beverage license held by Respondent, Jose Manuel Acosta, No. 23-03308, series 2-COP, be REVOKED. RECOMMENDED this 4th day of February, 1988, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1988.
Findings Of Fact Johnnie Woods, Jr. is the owner of the licensed premises known as "Black Magic" located at 2908 Northwest 62nd Street, Miami, Florida, operating under alcoholic beverage license no. 23-5233, Series 2-COP. On January 26, 1984, Beverage Officer Davis entered the licensed premises known as Black Magic as part of an investigation to determine if drug violations were occurring on the licensed premises. On this visit, Davis observed numerous patrons either smoking marijuana (cannabis) or snorting suspected cocaine. On January 30, 1984, Beverage Officer Houston observed a barmaid known as May smoke a marijuana cigarette and snort suspected cocaine from a plate while working at the bar. Houston also purchased a marijuana cigarette from an unknown patron who she had seen walking through the bar with a baggie of rolled marijuana cigarettes. On this date, Houston was approached by a patron known as Daryl Chester-field who handed her a small brown envelope containing marijuana and some rolling papers. She then rolled a marijuana cigarette and placed it in her purse for safekeeping. While on the premises this date with Officer Houston, Officer Davis also observed numerous patrons openly smoking marijuana and snorting suspected cocaine. On February 2, 1984, Investigator Davis was on the licensed premises as part of this investigation. He observed an unidentified patron place a plastic bag of marijuana on top of a video game machine and roll several marijuana cigarettes while at the machine. This took place openly and no attempt was made by any employee to stop such activity. On February 10, 1984, Officer Houston entered the licensed premises as part of this investigation. She observed the on-duty bartender, Willie Brown, a/k/a Johnnie, smoke a marijuana cigarette while standing at the bar. At her request, Houston was referred to an individual known as Jimmy by the doorman, Slim, in order to purchase marijuana cigarettes. She thereafter purchased two separately rolled marijuana cigarettes from Jimmy for a total of two dollars. While purchasing the marijuana cigarettes from Jimmy, he inquired if Officer Houston would be interested in any cocaine. Later on February 10, 1984, Officer Davis approached Jimmy and purchased a $25 bag of cocaine from him. The transaction between Jimmy and Officer Davis occurred in the storeroom of the licensed premises from which Jimmy had earlier been observed removing beer to stock the bar. Before leaving the licensed premises this date, Jimmy approached Officer Davis and handed him a marijuana cigarette while Davis was seated at the bar. The delivery of this cigarette was unsolicited by either Officer Davis or Officer Houston. On February 16, 1984, Officers Houston and Davis again entered the licensed premises of Black Magic. Upon entering both officers observed the majority of the patrons either smoking marijuana or snorting what appeared to be cocaine. They also observed the on-duty bartender, May, smoking marijuana behind the bar. May was also seen this date snorting suspected cocaine from a saucer on the bar. While on the premises, Officer Houston again purchased two marijuana cigarettes from the individual known as Jimmy for a total price of two dollars. Also on this date, Houston approached the manager, Willie Brown, a/k/a Johnnie, and inquired if he had any cocaine. He then walked to the rear of the bar, entered the storage room, and returned with a small suede pouch from which he obtained a foil package containing cocaine. Houston gave Johnnie $25 in exchange for the package of cocaine. On March 1, 1984, Officer Thompson entered the premises of Black Magic as part of this investigation. Upon entering the licensed premises, Thompson observed numerous patrons openly smoking marijuana. While on the premises this date, Thompson purchased a $10 package of cocaine from the employee/manager known as Johnnie. The cocaine transaction took place inside the bar in an open manner. On March 2, 1984, Officer Thompson again entered the licensed premises as part of the investigation. Thompson observed the on-duty bartender, May, smoking a marijuana cigarette while working behind the bar. After observing May remove a cellophane bag containing several rolled marijuana cigarettes from her purse, Thompson inquired if she would sell him too of the cigarettes. In response to this request, May sold Thompson two marijuana cigarettes from the cellophane bag for two dollars. On the evening of March 2, 1984, Officer Thompson again entered the licensed premises at which time he observed the on-duty doorman, Slim, smoking a marijuana cigarette. He also observed numerous patrons openly smoking marijuana. On this occasion, Thompson inquired of an on-duty barmaid known as Felicia, if she had any cocaine. She initially stated that she had none, but later returned and asked Thompson what he wanted. He requested a ten dollar bag of cocaine. She then took Thompson's money and walked to the south end of the bar. Upon returning she handed him two foil packages containing cocaine. 1/ While on the licensed premises this date, Thompson observed the licensee, Johnnie Woods, Jr., seated at the south end of the bar with an unidentified individual who was observed smoking a marijuana cigarette. The controlled substances obtained from the employees and patrons of the licensed premises of Black Magic were maintained in the exclusive custody and control of the referenced beverage officers until such time as they could be submitted to the Metro-Dade Crime Lab for analysis. Upon submission to the Crime Lab, chemists analyzed each submission by the Division and found that each purchase made by the respective beverage agents were in fact the controlled substances represented to them at the times of the transactions. Upon each occasion that the beverage officers entered the bar during the investigation, there was widespread use of marijuana and cocaine throughout the licensed premises. While there were at least two signs on the licensed premises prohibiting the use or possession of drugs, at no time did the officers ever observe managers or employees of the licensed premises attempt to stop or restrict the use or sale of controlled substances on the licensed premises. In mitigation, Respondent established that he was hospitalized for a three-month period prior to and during the early portion of the investigation. He was, however, present on March 2, 1984, when controlled substances were openly used and delivered.
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 11th 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 11th day of April, 1984.
The Issue The issue in this case is whether the Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT), should revoke, suspend, or otherwise discipline the alcoholic beverage license number 13-153, Series 5-COP, issued to the Respondent, Tupelo Management, Inc., doing business as Pastime, a bar located at 3602 West Highway 98, Panama City, Florida, upon the following grounds alleged in DABT's Notice To Show Cause issued May 2, 1984: On or about March 7, 1984, you, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, your agent, servant or employee, to wit: Margie, did violate F.S. 561.29(1)(a), to wit: did sell or deliver marijuana to Investigator Moore on your licensed premises in violation of F.S. 893.13. On or about March 12, 1984, you, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, your servant, agent or employee, to wit: Margie, did violate F.S. 561.29(1)(a), to wit: did sell or deliver marijuana to Detective Moore on your licensed premises in violation of F.S. 893.13. On or about March 23, 1984, you, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, your agent, servant or employee, to wit: Teresa, did violate F.S. 561.29(1)(a), to wit: did deliver marijuana to Investigator Moore on your licensed premises in violation of section 893.13. On or about March 26, 1984, you, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, your agent, servant, or employee, to wit: Margie, did violate F.S. 561.29(1)(a), to wit: did sell or deliver marijuana to Investigator Moore and Officer Russ on your licensed premises in violation of Section 893.13. On or about April 2, 1984, you, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, your servant, agent or employee, to wit: Margie, did violate F.S. 561.29(1)(a), to wit: did sell or deliver marijuana to Investigator Moore and Officer Russ on your licensed premises in violation of Section 893.13. On or about April 9, 1984, you, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, your servant, agent or employee, to wit: Margie, did violate F.S. 561.29(1)(a), to wit: did sell or deliver marijuana to Investigator Moore and Officer Russ on your licensed premises in violation of Section 893.13. You, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, between March 7, 1984 and the date of service of this Notice to Show Cause have maintained a public nuisance on your licensed premises, to wit: a place or building which is visited by persons for the purpose of unlawfully using, keeping, selling and/or delivering controlled substances in violation of Chapter 893, Florida Statutes, such being a violation of: (a) Florida Statutes 823.10 and 561.29(1)(c); (b) Florida Statutes 823.01 and 561.29(1)(a). You, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, between March 7, 1984 and the date of this Notice to Show Cause have maintained your licensed premises as a place resorted to by persons selling controlled substances in violation of Chapter 893, Florida Statutes, in violation of Sections 893.13(2)(a)5 and 561.29(1)(a), Florida Statutes.
Findings Of Fact Based on the testimony of the witnesses and the exhibits admitted in evidence at the hearing, I make the following findings of fact: At all times relevant and material to this case, Tupelo Management, Inc., has been the holder of alcoholic beverage license number 13-153, Series 5- COP, issued for the premises known as the Pastime, located at 3602 West Highway 98, Panama City, Florida. Mr. John Michael Whitfield is, and was at all relevant and material times, the president of Tupelo Management, Inc. Mr. Whitfield and his wife own all of the stock of Tupelo Management, Inc. Mr. Whitfield first opened the Pastime on May 18, 1977. At that time it was a small beer and wine bar with five pool tables. Over the years the business grew and in August of 1983 Mr. Whitfield purchased a 5-COP license for the Pastime. Prior to the events giving rise to this case, the Pastime had only been cited by the DABT for two violations. The first violation occurred during the first year of Pastime's operation. It concerned the wording of an advertisement on the exterior of the building. A DABT agent wrote a report or citation and the sign was promptly removed. No penalty was imposed as a result of that event. The second violation occurred during January of 1984. On that occasion the DABT agents found two minors on the licensed premises. The January 1984 violation was resolved by stipulation, pursuant to which Tupelo Management, Inc., paid a civil penalty in the amount of $250.00. The Bay County Sheriff's Department began an investigation of the Pastime in March of 1984 on the basis of information that illegal drug activity was occurring on the licensed premises. Mr. Floyd M. Moore, Jr., an investigator with the Bay County Sheriff's Department, went to the licensed premises the evening of March 7, 1984. Investigator Moore was introduced by a confidential informant to a waitress named Margie Adams, who was employed on the licensed premises. Investigator Moore asked Margie Adams if she could obtain some marijuana and she answered in the affirmative. Investigator Moore left the premises and returned at approximately 7:45 P.M. that same evening. He made contact with Margie Adams again. Margie Adams made a telephone call and then told Investigator Moore the marijuana would be there a short time later. At about 8:45 P.M. Margie Adams asked Moore how the transaction could be made. At Moore's suggestion they went to a table on the licensed premises and Margie Adams handed Investigator Moore a clear plastic bag containing marijuana. The plastic bag was covered when it was given to Investigator Moore. Investigator Moore paid Margie Adams $35.00 for the marijuana. On March 12, 1984, at approximately 7:45 P.M. Investigator Moore and Beverage Officer Rodney Russ entered the Pastime. After Investigator Moore introduced Margie Adams to Russ, Margie asked Moore if he had liked what she had previously sold him and agreed to get another bag for Moore, stating that it would just take a phone call. Margie spoke to a female waitress for a few minutes, after which she went behind the bar and made a telephone call. She thereafter returned to the officers and stated that the marijuana would arrive in approximately 30 minutes and asked that Investigator Moore pay her at that time to avoid confusion when it arrived. Investigator Moore gave Margie $35. At approximately 8:45 P.M. Margie told Investigator Moore that the merchandise had arrived and asked him to walk to the end of the bar. Moore went to the end of the bar located next to the dart board, where there was a lot of activity and numerous people, and Margie handed him a white paper napkin covering a plastic baggie of marijuana. On the evening of March 19, 1984, Investigators Moore and Russ returned to the Pastime. The officers each ordered one-quarter ounce of marijuana from Margie Adams but she stated that the person she was getting it from was not home so it would take some time. The officers observed Margie making a phone call, after which she told them that it would be approximately one hour before she could deliver. The officers left the Pastime and returned at approximately 9:00 P.M. The officers entered into a conversation with a male patron who told them there was a man in the pool room trying to sell marijuana. Investigator Moore told the patron to tell the man in the pool room that they were interested in buying. The patron went to the pool room and spoke to a male, who later came over to the officers and introduced himself as George. George (who was later identified as George W. Osborne) told the Officers that he had heard they were interested in buying, and Moore explained that they had ordered one-quarter ounce each but it did not look like it was going to arrive. George stated that he could sell them one-quarter ounce for $35.00 and the officers agreed to buy it. George left the officers and went to speak with Margie Adams. He returned shortly and asked the officers if they were getting their marijuana from Margie Adams. Russ stated that he would rather not say, and George said it was okay because he and the waitress were getting from the same person and that he and Margie had discovered that they were each ordering for the same persons. Russ told Margie that he did not want to cut her out of a sale, and she stated that it was okay to buy from George, that it was just like buying from her and she would get credit for the sale. During the time that Russ was talking to Margie, George handed Investigator Moore an orange tablet which he stated was a Preludin. Shortly thereafter, the officers and George walked outside to a motorcycle parked near the door and George laid two plastic baggies containing marijuana on the seat of the motorcycle. Each officer obtained one of the baggies of marijuana and each paid George 535.00. On March 22, 1984, Investigators Moore and Russ returned to the pastime. Margie was not on duty that night. Moore and Russ spoke to two waitresses who were on duty, Karen and Sionna, and told the waitresses they had purchased marijuana from George and were waiting to buy some more from him. The officers asked Sionna if George was an all right guy to deal with and she said that he was. Later that evening when George entered the Pastime he spoke to Sionna and then went back outside where the officers observed him talking to customers near the front door. A few minutes later George approached the officers and asked how they had liked the marijuana he had sold them. The officers said it had been fine and they asked George if he could obtain some more marijuana and some more "speed" or Preludin. George said he could obtain both and he left the premises on his motorcycle. When George returned he approached Investigator Russ and handed him five orange tablets which were supposed to be "speed" or Preludin. Investigator Russ paid George $25.00 for the tablets. George told the officers he had been unable to obtain marijuana, but would have some the following morning. The five tablets sold to Investigator Russ were later tested and found to contain caffeine, but they did not contain any controlled substances. On March 22, 1984, Detective Jonathan McNeil and Investigator Pam Hellett were also at the Pastime. They were seated at a booth with other officers. A male who identified himself as Phillip (later identified as Leroy Phillips) sat with the officers for a while. He got up to leave and told Detective McNeil that he would be back, he just needed to find something for his head. When he returned, McNeil asked Phillips where he could get something for his head and Phillips got up and said that he would go see his sister, he knew she had something. Phillips later identified his sister as Gloria, the manager of the Pastime. When Phillips returned to the table, he pulled a package of cigarettes from his pocket and showed Detective McNeil two small white square pieces of paper under the cellophane portion and stated that they were two hits of acid. McNeil paid Phillips $10.00 and took the two pieces of paper and inserted them into his cigarette package. Phillips told McNeil that the acid was "Mr. Natural." The pieces of paper were subsequently tested and found to contain LSD. The male previously identified as George came and sat with the officers and they began discussing whether a man seated at the next booth was a police officer. Investigator Hellett said to George, "Hurry up and give me everything you have," and George reached into his jacket and removed several orange tablets and some marijuana, which he placed in Investigator Hellett's lap. Hellett told George that she did not accept anything that she did not pay for and he asked how much she would like to buy. Detective McNeil asked George how much he was selling the tablets for and he stated that he would sell them to the officers for $3.00 apiece although he had sold them to other Persons for $5.00. McNeil agreed to buy five tablets and, in an attempt to be discreet, handed George $15.00 under the table. George handed the tablets to McNeil under the table, although McNeil stated that he was the only one trying to be discreet about the transaction. Investigator Hellett bought seven tablets from George in exchange for $21.00. George gave Investigator Hellett a small amount of marijuana and told her to try it and see if she liked it. The substance given to Investigator Hellett was subsequently tested and found to be marijuana, and the pills were tested and found to contain caffeine, but not to contain any controlled substance. Late in the morning on March 23, 1984, Investigator Moore went to the licensed premises to obtain the marijuana previously promised by George. George was not at the Pastime, and Moore talked to the bartender Teresa about being there to obtain marijuana from George. Teresa stated that George was probably getting it from "us." After conversing with Teresa about other drug transactions, Moore told Teresa that it looked like George was not going to arrive and Teresa stated that she would give him some. She put her purse on the bar and removed from it a small portion of marijuana and placed it in a napkin lying on the bar. Investigator Moore observed Mr. Michael Whitfield and his wife on the licensed premises, but neither of them were in sight at the time Teresa placed the marijuana on the napkin. Moore also talked to Teresa about cocaine and she said she could obtain some for him for $100.00 a gram. On March 26, 1984, Investigators Moore and Russ returned to the Pastime. They asked the waitress Margie Adams if she could get them a quarter ounce of marijuana. At first she said she could not, because she said she had had a fight with her supplier. Later she said she could obtain some marijuana from someone else, but that she did not know anything about the quality of the marijuana. The officers told Margie that they would trust her judgment on the matter. Investigator Russ paid Margie $40.00 for the marijuana, $5.00 of which was a tip for her. At about 8:55 P.M. that evening Margie Adams approached Investigator Moore. She had a napkin on a tray and told Moore that it was in the napkin. Investigator Moore took the napkin from the tray. Inside the napkin was a small plastic bag containing marijuana. On April 2, 1984, Investigators Moore and Russ returned to the Pastime. The waitress Margie Adams told the officers that she was leaving at 8:00 P.M. and Investigator Russ advised her that they would like to purchase one-quarter ounce of marijuana before she left. Margie stated that she would see what she could do and later came over and said that she had arranged for some marijuana to be delivered and that if it did not arrive before she left, one of the other waitresses would deliver it to them. A short time later Margie returned and showed Investigator Russ a towel on her tray. A plastic baggie of marijuana was under the towel. Investigator Russ took the plastic baggie of marijuana and paid Margie for it. Then he placed the baggie on the table and both investigators wrote their initials on it. On April 9, 1984, Investigators Moore and Russ returned to the Pastime. Margie Adams approached the officers and Russ asked whether she could get them some more of the same marijuana. She said she could and asked how much they wanted. The officers openly discussed the amount to be purchased and agreed upon one-half ounce, which Margie stated would be cheaper than purchasing two one-quarter ounces. Russ asked Margie if she could get some LSD or acid. Margie later came over to the officers and stated that the marijuana had arrived but that she could not deliver it because an undercover officer was seated at the bar. Margie later returned and sat beside Moore and handed him a white napkin covering a clear plastic baggie of marijuana. The officers paid her for the marijuana. Margie told them that she had not been able to get any acid. Investigator Russ told her he would be in town later on and would like to have a couple of hits of acid. On April 11, 1984, Investigator Russ went to the Pastime and asked Margie Adams if she had been able to obtain any acid or LSD. Margie said she had been unable to get it yet. Russ told her he was going to Montego Bay (another bar) and Margie said that if she was able to get the acid she would bring it to him at Montego Bay later that night. Russ paid her $20.00 for three hits of acid at $5.00 each, plus $5.00 as a tip for her. On April 16, 1984, Investigators Moore and Russ entered the Pastime to find out if Margie Adams had been able to obtain the acid Investigator Russ had paid her for. Margie was not present when the investigators arrived. When she came in later, she told the officers she had been unable to obtain the acid since she had been out of town for her grandmother's funeral. George Osborne was on the premises and Investigator Moore asked George if he had a quarter- ounce of marijuana to sell. George stated that he could get it for them in a few seconds. George left and returned shortly, motioning to investigator Moore to follow him. Moore followed George to the restroom and George handed Moore a plastic baggie containing marijuana. As Moore was examining the baggie, two white males entered the restroom, observed George and Moore, commented on how nice the marijuana looked, and asked how much it cost. Officer Moore paid George $45.00 for the marijuana and returned to the table and handed the baggie to Russ. Russ opened the baggie in plain view of other patrons and smelled the contents. Margie Adams, who was waiting on another nearby table, observed the bag of marijuana and commented to the investigators that she saw that they had gotten what they were looking for. Russ then put the baggie of marijuana in his shirt pocket so that half of it was visible and visited around the bar for several minutes. One patron told Russ that he was about to lose something out of his pocket. On April 25, 1984, Investigators Moore and Russ entered the Pastime again. They asked Margie Adams if she had been able to obtain the acid Russ had paid her for. Margie told the investigators she had been unable to obtain the acid. Investigator Moore contacted George Osborne and asked whether George could get the officers a quarter-ounce bag of marijuana and also asked how long it would take. Shortly thereafter George and the two investigators walked outside to George's motorcycle and George removed from his shoe a wallet containing two plastic baggies. As George handed Moore one of the baggies, a white male walked up. George asked what he wanted and he said he wanted a bag. George went inside to make change for the $40.00 Moore had given him. While George was inside the white male said that he had been told to go to the Pastime if he wanted drugs. George returned with Moore's change and then walked around to the back of the establishment with the white male. The baggie George had handed to Moore contained marijuana. In brief summary of the foregoing, during the 7-week period from March 7, 1984, through April 25, 1984, the following events occurred on the licensed premises: 3/07/84 Employee Margie Adams sold marijuana to Investigator Moore. 3/12/84 Employee Margie Adams sold marijuana to Investigator Moore. 3/19/84 Employee Margie Adams agreed to sell marijuana to Investigator Moore and Russ, but she did not sell them anything that day. 3/19/84 Patron George Osborne, with the knowledge of employee Margie Adams, agreed to sell marijuana to Investigator Moore and Russ. (The actual sale took place outside the licensed premises.) 3/22/84 Patron George Osborne, with the knowledge of employee Sionna, agreed to sell marijuana and "speed," or Preludin to Investigators Moore and Russ, and actually sold 5 tablets to Investigator Moore which were supposed to he "speed," or Preludin. 3/22/84 Patron Leroy Phillips sold fro tabs of LSD to Detective McNeil. 3/22/84 Patron George Osborne gave some marijuana to Investigator Hellett, sold 7 tablets that were supposed to be "speed," or Preludin to Investigator Hellett and sold 5 of the same tablets to Detective McNeil. 3/23/84 Employee Teresa gave some marijuana to Investigator Moore and told him she could obtain cocaine for him. 3/26/84 Employee Margie Adams sold marijuana to Investigators Moore and Russ. 4/02/84 Employee Margie Adams sold marijuana to Investigators Moore and Russ. 4/09/84 Employee Margie Adams sold marijuana to Investigators Moore and Russ and agreed to sell Russ some LSD. 4/11/84 Employee Margie Adams agreed to sell LSD to Investigator Russ and accepted payment for same, but did not deliver anything to him that day. 4/16/84 Patron George Osborne, with the knowledge of employee Margie Adams, sold marijuana to Investigator Moore. 4/25/84 Patron George Osborne agreed to sell marijuana to Investigators Moore and Russ. (The actual sale took place outside the licensed premises.) The vast majority of the drug transactions described above were accomplished in a relatively discreet manner. Most of the transactions took place in a booth and involved delivery of marijuana that was covered with a towel or a napkin. During the period of the investigation which led up to this case, the police officers and DABT investigators did not see any illegal drug usage or any illegal drug transactions on the licensed premises other than the ones they were personally involved in. Mr. John Michael Whitfield, the President of Tupelo Management, Inc., and co-owner with his wife of all of the corporation's stock, takes an active role in the management of the business because it is his family's sole source of income. He usually visits this licensed premises six days per week and he spends between 40 and 50 hours per week at the licensed premises. Mr. Whitfield is well educated. His formal education includes a Bachelor of Science degree in Social Welfare and a Master's degree in Social Work, both from Florida State University. After receiving his Master's degree, Mr. Whitfield was employed for three years as the Assistant Director of the Mental Health Center in Panama City, Florida. Thereafter he also worked for a year as Director of the Gerontology program at the same Mental Health Center. His work at the Mental Health Center included work in the area of drug abuse and alcoholism programs. Mr. Whitfield has never used any type of illegal drugs and is opposed to the use of illegal drugs by others. Mr. Whitfield has a very responsible attitude towards the fulfillment of his obligations and responsibilities as an alcoholic beverage licensee. For example, prior to January 1984, Mr. Whitfield had always used his own employees as doormen to check identification of patrons. Immediately after two minors were found on the licensed premises in January of 1984, Mr. Whitfield not only fired the doorman who was on duty that night, but arranged with Florida Security Service to provide extra uniformed security personnel to check the identification of patrons. When Mr. Whitfield met with DABT representatives concerning the problem with the two minors, he was advised that the two major priorities of the DABT were minors and drugs. Mr. Whitfield had several meetings with all of his employees in which he told them explicitly that he did not want to have any problems with minors or drugs on the licensed premises. He told all of the employees that they would be fired if they were responsible for any problems on the licensed premises related to minors or drugs. He also told the employees they would not be given any second chances about such matters, but would be fired for a first offense. Prior to May 2, 1904, when the Notice To Show Cause was served on the Pastime, Mr. Whitfield had never seen anything that caused him to suspect there was a drug problem at the Pastime. The security service never told him that there was a drug problem at the Pastime or that they suspected a drug problem. The uniformed police officers who walked through the Pastime practically every night never told him he had a drug problem on the licensed premises. Mr. Whitfield usually requires prospective employees to fill out a written application form. He usually does not check references, but he usually does check with prior employers. Mr. Whitfield will not hire people who have previously worked in what he considers to be dives. His usual employment practices notwithstanding, Mr. Whitfield has occasionally failed to require a written application and has occasionally failed to check the background of new employees. Some of the employees and former employees he failed to check were the causes of the present charges against Mr. Whitfield. One former employee whose background was not checked was George Osborne. Mr. Whitfield has barred several patrons in the past for improper conduct on the licensed premises and he has barred a suspected drug dealer from patronizing the Pastime. The DABT sent a letter to all alcoholic beverage licensees in south Florida in March of 1984 advising them of the DABT's priorities. The main priorities were the prevention of sales of alcoholic beverages to minors and the prevention of illegal drug activities on the licensed premises. The letter was not sent to alcoholic beverage licensees in north Florida, but will be sent to them later.
Recommendation For all of the foregoing reasons I recommend that the Division of Alcoholic Beverages and Tobacco enter a Final Order finding that the Respondent has violated Sections 561.29(1)(a) and (c), Florida Statutes, ordering the Respondent to pay a civil penalty of five hundred dollars ($500.00) for each of the violations charged in the first six paragraphs of the Notice To Show Cause (a total of three thousand dollars), and suspending the Respondent's alcoholic beverage license for a period of six months. DONE and ORDERED this 29day of October, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1984.
The Issue The issue is whether respondent's alcoholic beverage license should be disciplined for the reasons stated in the notice to show cause.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Dave Fulcher, held alcoholic beverage license number 46-00378, Series 2-COP, issued by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent used the license to sell beer and wine (for on-premises consumption only) at a small establishment known as Club 82 located at 3250 Anderson Avenue (recently renamed Dr. Martin Luther King, Jr. Boulevard) Fort Myers, Florida. As a part of an ongoing narcotics investigation, a Division investigator, Raylius Thompson, visited respondent's establishment on sixteen separate occasions in January and February 1991 to determine whether illegal narcotics were being sold and used on the licensed premises. As a result of that investigation, the Division issued a notice to show cause and emergency order of suspension on February 14, 1991. That agency action prompted respondent to request a hearing. Respondent's license has remained suspended during the course of this proceeding. The club consists of a single room approximately 35' x 45' in size. Besides a small counter bar on one side of the room, there are booths located on both side walls and tables scattered in between. The lounge has a raised floor extending from the back wall with a dance area immediately in front of the stage area. Agent Thompson found the premises to be "moderately" lighted during each of his visits and this was not disputed. Because of the compactness of the establishment, and the nature of the lighting, a customer seated at the bar counter could easily observe all activities in the lounge. At the outset of the hearing respondent stipulated that all suspected drugs purchased by agent Thompson were in fact cocaine and that the laboratory reports confirming that fact could be received in evidence without the necessity of the Division producing the laboratory technician who conducted such tests. There was also no dispute over the chain of custody of the drugs between the time agent Thompson purchased them and the time they were tested by the laboratory. On January 4, 1991, agent Thompson entered the licensed premises around 6:30 p.m. and took a seat at the bar. A black male named Ernest Taylor, also known as Musso, was the bartender on duty. A few minutes later, a white female entered the premises and asked Musso for some controlled substances. The bartender reached behind the counter, retrieved several rock type substances appearing to be rock cocaine (crack or rocks), placed them in a white cup and gave them to the female. The substance was exchanged for U.S. currency. Thompson then asked Musso the cost of the rocks and was quoted a price of $10.00 per piece. Thompson told Musso he was leaving the premises for a few minutes, gave Musso $20.00 in U.S. currency, and requested that Musso save two rocks for him. When Thompson returned a few minutes later, the bartender gave Thompson a napkin containing two pieces of rock cocaine. On January 5, 1991, Thompson returned to the licensed premises at approximately 7:40 p.m. He observed a black male known as James Taylor, a/k/a "Rabbit", who Musso said was his brother, selling what appeared to be crack cocaine to patrons. Thompson observed a white female speak to Rabbit who then retrieved a bag from behind a speaker located on the northern wall. After removing a small item from the bag, Rabbit exchanged the item with the female for U.S. currency. That same evening, Thompson asked bartender Musso for one piece of crack cocaine. Musso retrieved a plastic container from his pocket and exchanged one piece of rock cocaine for $10.00 of U.S. currency. Later on that evening, Thompson observed a black female named "Freida" selling what appeared to be cocaine at the door. Thompson approached the female, asked to purchase some crack, and gave her $10.00 of U.S. currency for one piece of crack cocaine. The exchange occurred in an open manner and was visible to other persons in the lounge. At 12:01 a.m. on January 6, 1991, Thompson returned to the licensed premises where he observed several patrons and bartender Musso selling suspected controlled substances. Also present in the lounge was Rabbit. Thompson asked Rabbit about purchasing crack cocaine. Rabbit called over another patron who removed a zip lock baggie from his pocket. The unidentified patron removed one piece of crack cocaine from the bag and exchanged it with agent Thompson for $10.00 of U.S. currency. The transaction occurred in an open manner. On the evening of January 6, 1991, Thompson returned to the licensed premises and asked bartender Musso for two rocks. Musso retrieved a baggie from his pocket, removed two pieces of crack cocaine, wrapped them in a white napkin, and gave them to Thompson in exchange for $20.00 of U.S. currency. On January 7, 1991, Thompson returned to the licensed premises at approximately 7:55 p.m. An hour later, Thompson asked bartender Musso for one rock. Musso obtained the rock cocaine from behind the bar, placed it in a napkin and gave it to Thompson in exchange for $10.00 of U.S. currency. On January 11, 1991, Thompson returned to the licensed premises around 8:30 p.m. After Thompson asked bartender Musso for two rocks, Musso retrieved two rocks from his pocket and exchanged them for $20.00 of U.S. currency. Around 8:00 p.m. on January 22, 1991, Thompson again visited the licensed premises. After taking a seat at the bar, Thompson asked bartender Musso for one piece of rock cocaine. Musso replied that he did not have any, but directed another black male seated at the bar to sell Thompson some drugs. The black male, later identified as "Eddie", removed two pieces of rock cocaine from his pocket and gave one to Thompson in exchange for $10.00 of U.S. currency. Thompson showed the purchased cocaine to Musso and complained the rock was too small. Musso advised Thompson not to worry, that he would have more cocaine for Thompson the next day. On January 23, 1991, Thompson entered the licensed premises at approximately 8:55 p.m. Bartender Musso walked over to Thompson and stated, "I got some tonight." He then removed a plastic baggie from his pocket containing a number of pieces of suspected controlled substances. Thereafter, Thompson purchased two pieces of rock cocaine in exchange for $20.00 of U.S. currency. On January 24, 1991, Thompson returned to the licensed premises and spoke with bartender Musso, who inquired as to the number of pieces of rock cocaine Thompson wished to purchase. Thompson asked for two and was given two pieces of rock cocaine in exchange for $10.00 of U.S. currency. At approximately 7:45 p.m. on January 26, 1991, Thompson entered the licensed premises and was approached by bartender Musso who asked him how much cocaine he wanted to purchase. Thompson then exchanged $10.00 of U.S. currency for one and a half pieces of rock cocaine. The cocaine was retrieved by Musso from a shelf behind the bar. On February 1, 1991, Thompson entered the licensed premises and spoke with Rabbit, who was carrying a baggie of rock cocaine in his hand. When Rabbit asked Thompson what he wanted, Thompson replied that he wanted two pieces. Thompson then exchanged $20.00 of U.S. currency for two pieces of rock cocaine. Later on that evening, Thompson observed Rabbit smoking suspected marijuana and observed another patron cutting a white powdery substance, consistent in appearance with cocaine, on top of the bar counter. On February 2, 1991, Thompson entered the licensed premises and purchased one piece of rock cocaine for $10.00 of U.S. currency from Rabbit who retrieved the rock cocaine from behind a wall partition. Thompson also observed other individuals selling suspected controlled substances on the licensed premises. When bartender Musso learned that Thompson had purchased cocaine from his brother, he cautioned Thompson that the agent should purchase crack from him (Musso), and not his brother. On February 4, 1991, Thompson returned to the licensed premises where he purchased two pieces of rock cocaine from bartender Musso for $20.00 of U.S. currency. Musso retrieved the rock cocaine from behind the bar. During the course of the evening, Thompson also observed other individuals retrieve what appeared to be rock cocaine from behind the speakers on the walls. On February 6, 1991, Thompson entered the licensed premises and observed an individual named "Wayne" on duty as the bartender. Musso, who was a patron that evening, approached Thompson and sold him three pieces of rock cocaine for $30.00 of U.S. currency. The exchange between Musso and Thompson occurred in plain view of the bartender. On February 11, 1991, while inside the licensed premises at approximately 10:00 p.m., Thompson observed several individuals smoking what appeared to be marijuana. Thompson also purchased from bartender Musso two pieces of rock cocaine for $20.00 of U.S. currency. Agent Thompson returned to the premises for a final visit on February 14, 1991. During that visit he met with bartender Musso at the bar counter and purchased two and one-half pieces of rock cocaine for $20.00 U.S. currency. On February 15, 1991, Division investigators secured a search warrant and executed a raid on the licensed premises. During the course of that search, the agents seized numerous pieces of rock cocaine, a number of aluminum foil packets of cocaine in a powdery form, and marijuana butts. Respondent has owned and operated Club 82 since December 1979. Fulcher described the bar as catering to extremely rough and dangerous individuals who were difficult to control. Although he has tried to stop the use of drugs, Fulcher said he was unable to get customers to obey him unless he had a gun or called law enforcement officers. He also stated that if law enforcement officers were called, he feared for his safety once the law enforcement officers had departed. Fulcher generally did not go on the premises except to open up the bar in the early evening and to lock it up around midnight. He claims he was "totally surprised" by the drug sales that occurred during Thompson's investigation. However, he did not deny that they took place and admitted that while cleaning up the premises, he would sometimes find aluminum foil packets and marijuana butts. He conceded that Musso had a key to the premises and had actively managed the business for the last year or so. Except for a small sign by the front door advising that drugs were prohibited, there was no evidence that respondent actively took steps to prevent such illicit activity or adequately supervised his employees to insure that state drug and beverage laws were obeyed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 561.29(1)(c), Florida Statutes (1989) and that his license number 46-00378 be revoked. DONE and ENTERED this 11th day of March, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1991. APPENDIX for Case No. 91-1110 Petitioner: Proposed findings 1-17 and 19-25 have been substantially adopted in this Recommended Order. Proposed finding 18 has been rejected as being irrelevant since the transaction did not occur on the licensed premises. Proposed finding 26 was deemed to be unnecessary. COPIES FURNISHED: Nancy C. Waller, Esquire 725 South Bronough Street Tallahassee, FL 32399-1007 Mr. Dave Fulcher 2802 Price Street Fort Myers, FL 33916 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, FL 32399-1000
The Issue This is a case in which the Petitioner seeks to suspend, revoke, and/or take other disciplinary action against the Respondent's alcoholic beverage license. The primary grounds for the proposed disciplinary action are that the licensee has permitted patrons on the licensed premises to sell cocaine on numerous occasions in violation of various statutory provisions. The specific allegations are set forth in a Notice To Show Cause dated February 27, 1989. An Emergency Order Of Suspension was served on the Respondent on February 27, 1989. The Respondent requested an emergency hearing, which was conducted on March 7, 1989. Both parties offered evidence at the hearing. Following the hearing the parties requested and were allowed until March 17, 1989, within which to file their proposed recommended orders. The Petitioner filed a timely proposed recommended order. The Respondent has not filed any post-hearing documents. The proposed findings of fact submitted by the Petitioner are specifically addressed in the appendix to this recommended order.
Findings Of Fact Based on the stipulations of the parties and on the evidence received at the final hearing, I make the following findings of fact: The Respondent, Ocean Drive Hotel Corporation, d/b/a/ Ocean Haven Restaurant, is the holder of Alcoholic Beverage License Number 23-3568, Series 2-COP, for a licensed premises known as Ocean Haven Restaurant, which is located at 155 Ocean Drive, Miami Beach, Dade County, Florida. The licensed premises are located in a neighborhood which is somewhat less than wholesome; a neighborhood in which there is a substantial amount of illegal drug related activity. It is a neighborhood in which it is not uncommon for police officers to observe people who have been previously arrested for drug violations. The Respondent corporation owns the licensed premises, as well as the hotel premises of which the licensed premises are a part. The Respondent corporation is owned by Mr. Heriberto Velasco. Mr. Velasco is the president of the Respondent corporation and he is the manager of both the hotel and the restaurant businesses. Mr. Velasco lives in the hotel with his wife, his mother, and one of his sons. Mr. Velasco takes most of his meals in the restaurant which comprises the licensed premises, and usually visits the licensed premises at least three times a day for that purpose. There is no evidence that he regularly spends any other time supervising activities in the restaurant. There are four employees in the restaurant that comprises the licensed premises. Two of those employees are Gloria E. Berlioz and Antonia Rodriguez de Alcina. The latter is also known by the name of Nora. Ms. Berlioz and Ms. Alcina have both been employees on the licensed premises for a year or two. Ms. Alcina is employed as a waitress. Ms. Berlioz is employed as a cook. During the course of an undercover investigation during the months of January and February of 1989, the following transactions involving controlled substances took place within the licensed premises: On January 10, 1989, a patron known as Loraine sold cocaine to Investigator Huguet. On January 18, 1989, a patron named Roberto Cantero sold cocaine to Investigator Huguet. On January 19, 1989, an unknown white Latin male patron sold cocaine to a patron named Tommy. On January 25, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. On January 26, 1989, an unknown Latin male patron sold cocaine to Investigator Huguet. On February 6, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. On February 7, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. On February 10, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet in two separate transactions. On February 10, 1989, a patron named Roberto Cantero also sold cocaine to Investigator Lerra. On February 17, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet, in two separate transactions. On February 17, 1989, a patron named Roberto Cantero also delivered cocaine to an unknown white male patron. On February 22, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. During the course of the vast majority of the drug transactions described in the preceding paragraph, the people involved in the transactions discussed the subject of drug transactions in normal conversational tones of voice. During the majority of those conversations, either Ms. Berlioz or Ms. Alcina was standing close enough to have heard the conversations. During some of the conversations, Ms. Berlioz or Ms. Alcina was standing immediately on the other side of the lunch counter, within two or three feet from the conversations. During the course of the vast majority of the drug transactions described in Paragraph 5, above, the drugs involved in the transactions were openly displayed on the table top or on the counter top in front of the participants to the transactions. In each of the transactions involving purchases by Investigator Huguet, the investigator attempted to be obvious about what he was doing by holding the drugs in front of his face to inspect them before putting the drugs in his pocket. During the vast majority of those transactions, Ms. Berlioz or Ms. Alcina was standing close enough to have observed the transactions. During some of the transactions, Ms. Berlioz or Ms. Alcina was standing immediately on the other side of the lunch counter within two or three feet from the drug transactions. One of the drug transactions took place while Mr. Heriberto Velasco was standing several feet away. All of the drug transactions described in Paragraph 5, above, took place within the licensed premises during business hours when employees and patrons were present on the licensed premises. None of the employees ever called the police or asked any of the parties to the drug transactions to leave the licensed premises. Mr. Heriberto Velasco was aware that the licensed premises are located in a neighborhood in which there is a high level of illegal drug activity. Nevertheless, he did not take any special precautions to prevent or detect drug activity on the licensed premises other than to tell the employees to let him know if they saw any drug activity. Mr. Heriberto Velasco has never asked the Division of Alcoholic Beverages and Tobacco for assistance or suggestions with respect to preventing or eliminating drug activity on the licensed premises, even though the Division of Alcoholic Beverages and Tobacco advises all licensees of the availability of such assistance. Mr. Heriberto Velasco did not have actual knowledge that drug transactions were taking place on the licensed premises. He is opposed to drug trafficking and he has not knowingly permitted sales of drugs in his hotel or on the licensed premises. He has instructed his employees in the hotel and in the restaurant to call him if they observe any drug related activity so that he can throw out anyone involved in such activity. He has thrown people out of the hotel when he suspected they were involved in drug related activities. The employees in the licensed premises never told him about any drug related activity on the premises. Mr. Velasco never observed any activity on the licensed premises that he thought was drug related activity. Mr. Velasco does not know what crack cocaine looks like. Mr. Eric Velasco is the 20-year-old son of Mr. Heriberto Velasco. The son lives at the hotel with his parents and helps with the management of the hotel and restaurant to the extent he can between going to college and working at another near-by job. Mr. Eric Velasco has never observed any activity in the licensed premises that appeared to him to be drug related activity. He does not know what crack cocaine looks like. In brief summary, the vast majority of the drug transactions described in Paragraph 5, above, took place in plain view within the licensed premises. The open exchanges of drugs and money in conjunction with the open conversations about drug transactions demonstrate a persistent pattern of open and flagrant drug activity. The subject drug transactions were sufficiently open that they would have been noticed by a reasonably diligent licensee.
Recommendation On the basis of all of the foregoing, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a final order in this case revoking the Respondent's alcoholic beverage license number 23-3568, series 2-COP, for the premises located at 155 Ocean Drive, Miami Beach, Dade County, Florida. DONE AND ENTERED this 19th day of April, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1096 The following are my specific rulings on all of the proposed findings of fact submitted by all parties. Findings proposed by Petitioner Paragraph 1: Accepted. Paragraph 2: Rejected as subordinate and unnecessary details. Paragraph 3: Rejected as constituting subordinate and unnecessary details. Further, some details proposed in this paragraph are not supported by clear and convincing evidence. Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19: Accepted in substance, with many subordinate and unnecessary details omitted. Paragraph 20: Rejected as irrelevant. Paragraph 21: Accepted in substance. Findings proposed by Respondent (None) COPIES FURNISHED: Katherine A. Emrich, Esquire Assistant General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Gino P. Negretti, Esquire 44 West Flagler Street Miami, Florida 33130 Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether respondent's alcoholic beverage license should be disciplined for alleged multiple violations of the Beverage Law.
Recommendation Based on the foregoing, it is RECOMMENDED: That the respondent's alcoholic beverage license be revoked for multiple violations of the Beverage Law. DONE and ENTERED this 22nd day of June, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1983. COPIES FURNISHED: William A. Hatch, Esquire Howard M. Rasmussen, Department of Business Regulation Director 725 South Bronough Street Division of Alcoholic Tallahassee, Florida 32301 Beverages and Tobacco 725 South Bronough Street Aaron A. Green, Esquire Tallahassee, Florida 32301 410 S.E. 4th Avenue Gainesville, Florida 32602 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
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.
The Issue This case concerns the issue of whether the Respondent's beverage license should be suspended, revoked, or otherwise disciplined for maintaining a licensed premises where illegal drugs are sold and solicitations for prostitution take place. At the formal hearing, the Petitioner called as witnesses Carol Houston, Michael Collins, Chester L. Copeland, Vincent Rodriguez and John T. Allen. Petitioner offered and had admitted into evidence six exhibits. Respondent offered and had admitted into evidence one exhibit. Mr. Samuel Williams testified on behalf of Respondent.
Findings Of Fact The Respondent holds and at all times material to this action held beverage license No. 39-684, Series 4-COP. The licensed premises under that license is located at 2801 Nebraska Avenue, Tampa, Florida. Mr. Samuel Williams is president of the Respondent, Skylight Corporation, and owns 60 percent of the stock of that corporation. On the evening of July 27, 1983, Beverage Officer Carol Houston went to the licensed premises, The Blue Room Lounge, to conduct an undercover investigation. Upon entering the lounge Officer Houston took a seat at the bar and ordered a drink. After the shift change, Officer Houston talked to Brenda Brock, the bartender on duty. Officer Houston told Ms. Brock she liked to get high and asked if there was anyone in the bar from whom she could buy "reefer". Reefer is a street or slang term for marijuana or cannabis. Brenda Brock told Officer Houston that the person who usually sells reefer wasn't in the lounge at that time. Ms. Brock also related that she was high herself and had smoked a joint before coming on duty. When Officer Houston had entered the bar, Officer Michael Collins of the Tampa Police Department was already present in the lounge. Officer Collins, also working undercover, asked Brenda Brock where he would purchase some marijuana. When he asked Ms. Brock this question, she pointed out a black male named Chunky and said that he sold marijuana. Officer Collins then asked Brenda Brock to get Chunky for him and she did. The young male named Chunky approached Officer Collins and said he didn't have any marijuana but would have some later. At some time later in the evening, a young black male named Ace entered the lounge and Brenda Brock pointed to him and said to Officer Collins "that's him." Ace walked over to Officer Collins and asked if he was the guy looking for some marijuana. Officer Collins told him that he was but that he had promised to buy from someone else. Ace then asked Brenda Brock to verify to Officer Collins that he had been sent by Chunky and Brenda Brock said that he had in fact been sent by Chunky. As Ace had walked up to Officer Collins, he had three plastic bags of marijuana (cannabis) in his hands. He sold one of these bags to Officer Collins. Ace then sold a second bag of marijuana to a woman named Celeste who was sitting next to Officer Collins. Celeste was the bartender who had been relieved by Brenda Brock. Celeste purchased a $5 bag of marijuana from Ace and the exchange took place in the open and was observed by Officer Collins. After making the sales to Officer Collins and to Celeste, Ace approached Beverage Officer Houston who was still seated at the bar in a different area than Officer Collins and Celeste. He asked Officer Houston if she wanted to purchase some marijuana. She said yes and further stated that she wanted a $5 bag. He handed her a plastic bag containing marijuana and Officer Houston laid it on the bar in the open. Brenda Brock walked over and told her to put the bag up. Officer Houston then placed the bag of marijuana in her purse. Officer Houston then asked Brenda Brock if she had any papers she could use to roll a "joint". A joint is a slang term or street term referring to a marijuana cigarette. Brenda Brock said she did not have any papers. The purchase by Officer Houston of the marijuana took place in the open and was observed by Officer Collins from a different area of the bar. Later in the evening of July 27, 1983 two white females came into the lounge. Brenda Brock pointed to them and said those two ugly bitches called themselves prostitutes. At the time that the purchases of marijuana were made by Officer Collins, Celeste and Officer Houston, Brenda Brock was on duty as bartender and made no effort to stop the transactions. Mr. Samuel Williams had been in the lounge earlier in the evening, but was not present in the lounge when the marijuana transactions took place. On July 28, 1983, Officer Houston returned to the licensed premises approximately 7:00 p.m. When she arrived Samuel Williams was present in the lounge. Mr. Williams was talking with two men seated at the bar and was overheard by Officer Houston to say that before he would have those two prostitutes on the phone all night, he would have it taken out. Brenda Brock was the bartender on duty that evening and Officer Houston asked her if Ace was around. Ms. Brock replied that no one was around who had any reefer. Officer Houston left the lounge approximately 8:30 p.m. and returned at approximately 11:30 p.m. Upon entering, she ordered a drink from Brenda Brock and asked Ms. Brock if Ace had been back in because she wanted to get some reefer now. Ms. Brock replied that he was in the lounge and that she would get him for her. Shortly thereafter, Ace came over and asked Officer Houston what she wanted. She told him she wanted some reefer. Ace then walked away and shortly returned with a plastic bag containing marijuana. Officer Houston handed Ace a $20 bill and because Ace indicated he had no change, Officer Houston handed the $20 bill to Brenda Brock who gave her two $5 bills and one $10 bill as change. Officer Houston then handed a $5 bill to Ace as payment for the bag of marijuana. Also on the evening of July 28, 1983, while Officer Houston was seated at the bar, Brenda Brock told her a gentleman wanted to speak to her. The gentleman was Officer Collins, also working undercover. Officer Houston walked over and spoke to him briefly and the two of them returned to where Officer Houston had been seated in front of the cash register. There they discussed the price of a "date". A date is a common palance or street term for a sexual encounter for money or prostitution. A "date" is also referred to as a "trick". After agreeing upon a price, Officer Houston handed her purse and drink to Brenda Brock and asked Ms. Brock to hold them while she went outside to do a trick. Brenda accepted the purse and drink and Officer Houston left the bar with Officer Collins. Approximately 20 minutes later, Officer Houston returned and Brenda Brock gave her back her purse and her drink. At no time did Brenda Brock object to or inquire about Officer Houston's activities. On July 30, 1983, Beverage Officer Houston returned to The Blue Room Lounge at approximately 5:30 p.m. She entered the lounge and took a seat at the bar and ordered a drink from Brenda Brock who was on duty as bartender. While she was seated at the bar a young black female came up and asked her if she wanted to buy some reefer. Officer Houston had seen this young woman in the bar previously. She told her she did not want to buy any marijuana and after the young woman left she asked Brenda Brock who the young woman was. Brenda Brock said she was Ace's sister and in response to Officer Houston's questions, indicated that it was alright to buy reefer from her. Later that evening Ace came in and asked Officer Houston if she wanted to buy some marijuana. She told him that she had met his sister and Ace then called the young black female over and introduced her to Officer Houston as his sister. Officer Houston told Ace that she wanted to buy a $5 bag of marijuana. Ace then went over to his sister and brought back a clear plastic bag of marijuana. Officer Houston handed him a $20 bill and he indicated he did not have change. She then obtained change for the $20 bill from Brenda Brock and handed $5 of the change to Ace. Brenda Brock was standing right in front of her at the bar when she handed Ace the $5. In the early morning hours of July 30, 1983, just after midnight, Beverage Officer Hamilton entered the The Blue Room Lounge. He came over and talked with Officer Houston about a "date". While they haggled over a price Brenda Brock was seated directly across the bar from Beverage Officer Houston. After agreeing upon a price for the date, Officer Houston handed her purse to Brenda Brock and asked her to hold it while she did this trick. Brenda Brock took the purse and agreed to hold it. Beverage Officer Houston then left the lounge with Officer Hamilton. A few minutes later Beverage Officer Houston returned to the bar and Brenda Brock gave her her purse and put the drink which she had been drinking back on the bar. On August 1, 1983, Officer Houston returned to the licensed premises at approximately 9:30 p.m. She took the same seat near the cash register where she had sat on the previous evenings. Ace was present in the lounge. Officer Houston asked Brenda Brock to ask Ace to bring her a dime bag of marijuana. (A dime bag is a $10 bag. Brenda Brock went over to Ace and Ace then approached Officer Houston and asked her how much she wanted. At that time Officer Houston asked him if he could sell her some cocaine. He said he didn't have any but would have some later. Officer Houston then purchased two bags of marijuana from Ace for which she paid him $10. She handed him a $20 bill and he gave her $10 in change and when this exchange took place, Brenda Brock was in the area nearby on the other side of the bar. Officer Collins also went to the licensed premises on August 1, 1983 at approximately 10:55 p.m. After entering the lounge he told the barmaid, Brenda Brock, that he wanted to buy some good marijuana. She signaled to Ace and Ace came over to her. She whispered to Ace. Ace had walked up with a bag of marijuana already in his hand and after speaking with Brenda Brock he walked over and sold the bag of marijuana to Officer Collins for $5. Brenda Brock never objected to discussions regarding drugs or refused to get involved. There were no signs in the bar saying "No Drugs, No Loitering, No Prostitution", or signs with rules of management. On the evening of August 1, 1983, Officer Chester L. Copeland of the Tampa Police Department was also in the licensed premises in an undercover capacity. While standing at the bar Officer Copeland talked with Brenda Brock and asked her if Carol Houston was "dating". Brenda Brock said she didn't know. Ms. Brock then walked over and whispered something to Carol Houston and then returned to where Officer Copeland was standing and informed him that Carol was "dating". Officer Copeland then went over to Officer Houston and conversed with her about the price of a date. Brenda Brock was standing nearby during this conversation and made no objection to the discussion. After agreeing on a price Officer Houston handed her purse to Brenda Brock and left the lounge with Officer Copeland. Officer Collins also present in the lounge, observed Officer Houston and Officer Copeland leave the lounge together. Prior to this occasion Officer Collins had asked Brenda Brock if Officer Houston dated. Ms. Brock had indicated she didn't know and he had told her to go ask. She did go ask Officer Houston and came back and informed Officer Collins that she did date. Officer Collins then asked Ms. Brock the price of a date and she said she didn't know. Officer Collins asked her to go ask. Ms. Brock walked over and spoke with Officer Houston and came back and said the price was $50. On this particular evening of August 1, 1983, after he observed Officer Houston and Officer Copeland leave the bar, Officer Collins asked Brenda Brock if Officer Houston was coming back. Ms. Brock said she didn't know. Officer Collins then asked her if Carol (Officer Houston) was out on a date and Brenda Brock replied that she thought so. On each of the occasions that Officer Collins discussed prostitution with Brenda Brock he instituted the conversation, but Ms. Brock freely discussed it and made no objection to the discussions. Shortly after she had left with Officer Copeland, Carol Houston returned to the licensed premises. Officer Collins then approached her and talked about a "date". After a short discussion he and Officer Houston left the bar together. On August 3, 1983, Officer Houston again returned to the licensed premises at approximately 10:30 p.m. She took a seat at the bar directly in front of where Brenda Brock was working as bartender. Seated near her at the bar was a latin male who kept asking her to come over. After she had been there a short time, Brenda Brock came over to Officer Houston and said that the latin male wanted to know how much she charged for a date. Officer Houston did not respond and Brenda Brock shouted to the latin male $100. A short time later Brenda Brock came back over to Officer Houston and said that the latin male said he had some cocaine. Officer Houston then told the latin male in a loud voice that he better also have lots of money. That same evening Brenda Brock also told Officer Houston that another male, Officer Collins, wanted a date and had some cocaine. On the evening of August 3, 1983, Officer Copeland also entered the licensed premises. While seated at the bar, Officer Copeland met the young man named Ace. Ace came over and asked if he wanted to buy a $5 bag of reefer. He indicated that he did and gave Ace $5, and Ace handed him a plastic baggie of marijuana. On August 9, 1983, Officer Houston entered the licensed premises approximately 10:30 p.m. She took a seat at the bar, ordered a drink, and asked Brenda Brock, the bartender on duty, if Ace was around. Brenda Brock indicated that he was over at the Pac-Man machine but he had left the lounge. Later Ace came in and Brenda Brock said "there he is" to Officer Houston. Ace came over to Officer Houston and said he had some cocaine and asked if she still wanted to buy some. She asked now how much it would cost. Ace indicated he had "nickel" ($5) pieces. Ace stated that it was back at his room and he left and then returned with a small foil pack. Officer Houston gave Ace $5 and he handed her the small foil pack. The small foil pack contained cocaine, a controlled substance under Section 893.03, Florida Statutes. That same evening Officer Houston observed two black males rolling some type of cigarette. She observed a plastic bag containing material similar to marijuana. She observed Brenda Brock obtain some rolling papers from behind the bar and hand them to the two males. On August 10, 1983, Officer Houston entered the licensed premises approximately 10:00 p.m. Ace was not in the lounge when she arrived, but approximately 10:15 p.m. Ace entered the lounge and came over and asked if she wanted to buy some "coke". "Coke" is a slang or street term for cocaine. She said she would like to buy some and he said he would have it later. At approximately 11:30 p.m., Ace came over to Officer Houston and stated that he had coke. Officer Houston told him that she wanted two hits and she then bought two foil packs from Ace. Officer Houston gave Ace a $20 bill but he had no change. She then handed the $20 bill to Brenda Brock who gave her change. She paid $10 for the two foil packs which contained cocaine. That same evening a black male was seated at the bar smoking a marijuana cigarette. Brenda Brock who was the bartender on duty stated "Do I smell dope?" She then looked at the male smoking the marijuana cigarette, but made no effort to stop him. On August 11, 1983, Officer Houston was again on the licensed premises. While seated at the bar, Officer Houston observed a white female smoking what appeared to be a marijuana cigarette Brenda Brock came over to Officer Houston and said that the white female had just gotten some reefer and wanted to know if she wanted some. Officer Houston told her that she did not. Mr. Samuel Williams the president of the Respondent corporation was the manager and owner of the licensed premises. During the time of the charges in this case, Mr. Williams would open the bar in the mornings and remain at the bar all day until the shift change at approximately 7:00 or 7:30 p.m. He was not present in the bar when the various transactions took place and was generally not present in the bar in the evening. A Mr. Raifield had been hired by him to manage the bar at night. However, Mr. Raifield had been terminated shortly before the transactions which are the subject of this case. Brenda Brock had become a full-time bartender on July 26, 1983. Prior to that time she had worked part-time and Mr. Williams had no indication that she used drugs or allowed other people to use drugs or solicit for prostitution on the licensed premises. At no time was Mr. Williams aware that Brenda Brock was permitting drug transactions and solicitations for prostitution to take place in the licensed premises. There is a substantial prostitution problem in the Nebraska Avenue area where the licensed premises is located. Mr. Williams has been active in civic attempts to eliminate the prostitution from this area. Within a year of the charges which are the subject of this case, Mr. Williams' life was threatened by a pimp operating along Nebraska Avenue and the tires and convertible top of his car were slashed. One of the reasons that Mr. Williams was not in the lounge in the evening was because he had been advised by the police that it would be safer for him to not be in the lounge in the evenings. This occurred following the threat on his life. Mr. Williams had no policy of random visits or inspections to the lounge in the evenings. There have been no prior complaints or charges brought against the Respondent's license.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered finding the Respondent in violation of Section 561.29, Florida Statutes, and imposing a civil penalty of 1,000 and suspending Respondent's beverage license for a period of sixty (60) days. DONE and RECOMMENDED this 1st day of September, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Samuel Williams 3513 Rivergrove Drive Tampa, Florida Mr. Howard M. Rasmussen Director of the Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner should suspend or revoke Respondent's alcoholic beverage license, pursuant to Section 561.29(1), Florida Statutes (1995),1 and Florida Administrative Rule 61A-2.022,2 because Respondent operated the licensed premises in a manner that was a public nuisance and permitted others to violate state criminal laws prohibiting the possession and use of controlled substances, or both.
Findings Of Fact Petitioner is the state agency responsible for regulating alcoholic beverage licenses. Respondent holds alcoholic beverage license number 15-02695, series 2-COP for the Red Top Lounge located at 2804 Kennedy Street, Mims, Florida (the "licensed premises"). Respondent is the sole proprietor of the licensed premises. On February 13, 1997, two of Petitioner's special agents ("SAS") and other undercover law enforcement officers entered the licensed premises as part of an ongoing narcotics investigation. Several patrons of the licensed premises were consuming marijuana and rolling marijuana cigars in plain view of Respondent's employees and managers. Respondent was not present at the time. On February 28, 1997, the same SAS and law enforcement officers returned to the licensed premises incident to the same investigation. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Black." On March 14, 1997, the same SAS and law enforcement officers returned to the licensed premises incident to the same investigation. After midnight on March 15, 1997, the SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Marty." On March 15, 1997, the same SAS and law enforcement officers returned to the licensed premises, incident to the same investigation. After midnight on March 16, 1997, the SAS purchased a small package of marijuana for $10 from an unknown patron. The disc jockey routinely encouraged patrons over the public address system to smoke marijuana inside the licensed premises. On April 25, 1997, one of the same SAS, another SAS, and other law enforcement officers returned to the licensed premises incident to the same investigation. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Kenny Harvey." On April 26, 1997, the same SAS and law enforcement officers involved in the investigation on the previous day returned to the licensed premises. After midnight on April 27, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. On May 2, 1997, two SAS previously involved in the investigation and other law enforcement officers returned to the licensed premises. After midnight on May 3, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. After midnight on May 3, 1997, two SAS previously involved in the investigation and other law enforcement officers returned to the licensed premises. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Roy." After the previous transaction on May 3, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. After midnight on May 4, 1997, the SAS purchased a small package of marijuana for $10 from an unknown patron. Subsequent to each purchase of marijuana by the SAS, the items purchased were chemically analyzed in a laboratory and found to be marijuana. Subsequent to each purchase of cocaine by the SAS, the items purchased were chemically analyzed in a laboratory and found to be cocaine. The SAS involved in the investigation have extensive experience and training in narcotics investigation and detection of controlled substances. They have conducted numerous undercover investigations. Each agent has personal knowledge of the appearance and smell of marijuana. The open, flagrant, and notorious drug activity on the licensed premises was the worst each agent had observed in his career. Each time the SAS entered the licensed premises, underage patrons consumed alcoholic beverages. More than half of the patrons present on each occasion consumed and rolled marijuana cigars. The second-hand marijuana smoke inside the premises was so great that the SAS were concerned for their personal health and the affect the second-hand smoke could have on each agent if subjected to a random drug test, pursuant to agency policy. The purchase, consumption, and use of marijuana occurred in plain view of Respondent's employees and managers. Respondent's managers and employees never attempted to prohibit the illegal drug activity. Respondent was never present on the licensed premises. She was caring for her daughter who died on April 2, 1997. During the time she was caring for daughter, Respondent relinquished management and control of the licensed premises to her granddaughter and her boyfriend.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's alcohol and tobacco license. DONE AND ENTERED this 7th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1997.
