The Issue Whether Respondent committed the offenses alleged in the notice to show cause and, if so, what disciplinary action should be taken.
Findings Of Fact The bar At all times pertinent hereto, respondent, Melba Mosca, held alcoholic beverage license number 23-00737, series 2-COP, for the premises known as 71 Bar and Grill (the "premises"), located at 1220 Normandy Drive, Miami Beach, Dade County, Florida. The investigation On January 28, 1994, Officer Luis King of the Miami Beach Police Department, operating undercover, entered the licensed premises as part of an investigation of illegal drug activity. The premises is a small bar, containing one main bar, a pool table, a pinball machine and a jukebox. At the time he entered, Officer King observed between 15 and 20 patrons, a female bartender, and another individual behind the bar, later identified as "Dave." At the time, Dave appeared to Officer King to be the manager or in charge of the premises since he had the keys to the register, full access to the bar and the remainder of the premises, and actively controlled the bartender and patrons. During subsequent visits, Officer King discovered that Dave was the son of the owner, respondent Melba Mosca, and his activities in the bar, from bartending, scheduling the bartenders, and ordering bar supplies and food, confirmed his employment and management status in the bar. 1/ That evening, Officer King observed one Phillipi Blanco (Flip), a known narcotics dealer, on the premises, and the pattern of his activities suggested to Officer King that Flip might be dealing narcotics. Accordingly, Officer King resolved to return to the premises on another occasion. On February 11, 1994, Officer King returned to the premises at or about 9:30 p.m., and noticed Dave, the only employee on the premises, tending the bar. Dave appeared very agitated that evening, consistent with being under the influence of some controlled substance, and exhibited some strange behavior, such as exposing his genitalia while working behind the bar. On one occasion that night, Dave locked himself in the men's restroom with unknown patrons for approximately one-half hour, leaving the bar unattended. That same evening, Officer King met with Eugene Scott, who he had met the previous night, in the men's restroom, and Scott offered to sell Officer King one plastic baggie of cocaine for $30. Officer King accepted, and paid Scott $30 in exchange for the cocaine. 2/ On February 12, 1994, Officer King returned to the licensed premises at or about 7:30 p.m. Officer King did not recall if Dave was on the premises that evening, but about 8:40 p.m. he approached Eugene Scott by the back door and asked Scott if he could purchase some more cocaine. Scott stated that he did not have any cocaine but that he did have some marijuana. In exchange for $10, Officer King purchased a baggie of marijuana from Scott. As noted, this transaction occurred near the back door, and was not observable from the bar. During the evening of February 19, 1994, Officer King returned to the licensed premises to continue his investigation. While at the premises, Officer King played pool with a patron known as Manuel Fernandez (Manny), who he knew from previous visits and during the course of that game asked Manny if he could purchase some cocaine. Manny refused. Later, Officer King observed Flip and an unknown patron enter the restroom. Officer King and Manny entered the restroom and Officer King asked Flip if he could buy some cocaine. Flip refused, because he "did not know " Officer King "well enough." Immediately after Flip left the restroom, Manny asked Officer King what he wanted and Officer King replied that he wanted to purchase $20 worth of cocaine. Officer King handed Manny $20 and a few minutes later Manny joined Officer King at the pool table and handed him a plastic baggie, secreted inside a matchbook, containing cocaine. Dave was in the bar at the time, but the proof fails to demonstrate that he observed or had the opportunity to observe any of these discussions or transactions. On March 1, 1994, at or about 7:45 p.m., Officer King returned to the licensed premises to continue his investigation, and during the course of that visit engaged Dave in a game of pool. While playing pool, Officer King was approached by a patron known as "Gennie," who Officer King had observed on the premises previously. Gennie asked Officer King if he needed anything and Officer King replied that he wished to purchase $20 worth of cocaine. Officer King gave Gennie $20 and Gennie approached Dave and asked if he had any cocaine. Dave replied that it would be a little while, and shortly thereafter he left the premises. A few minutes later Dave returned with an unknown male, entered the men's restroom, and locked the door. A few minutes later, Dave exited the restroom, and he and Gennie engaged in a hand-to-hand transaction. Gennie then went to the lady's restroom, and on her return handed Officer King a plastic baggie of cocaine and explained she had taken a "hit" before delivering it to him. Later that evening, Officer King asked Gennie if she could get him another $20 worth of cocaine. Gennie replied that would be "no problem," and approached Dave and asked him for another $20 worth of cocaine. Shortly thereafter, Dave and the unknown male again entered the men's restroom and locked the door. When he exited a few moments later, Dave went directly to Gennie and they again engaged in a hand-to-hand transaction. Gennie then went to the lady's restroom, and when she emerged a few moments later handed Officer King a small plastic baggie containing cocaine. Gennie again advised Officer King that she had taken a "hit" prior to delivery, as "her payment". On March 4, 1994, Officer King returned to the licensed premises to continue his investigation. Upon entering the premises Officer King went directly to the restroom and was followed by Scott. Scott asked Officer King if he "needed anything." Officer King told Scott he wished to purchase some cocaine, and later that he wished to purchase some marijuana and crack cocaine. Scott advised Officer King that it would be a while before he could get the cocaine, but that he could get the marijuana and crack cocaine immediately for $10 each. Officer King gave Scott $20, and Scott left the premises. A few minutes later, Scott returned to the premises and handed Officer King a plastic baggie containing marijuana and a rock of crack cocaine. Officer King then left the premises, but returned about 30 minutes later. While Officer King was playing pool with Dave, Scott returned to the premises, approached Officer King, and handed Officer King a plastic baggie containing cocaine. This transaction occurred openly, with no attempt by Scott to conceal the transaction from Dave. The owner's explanation Respondent, Melba Mosca, is 70 years of age, and has owned the 71 Bar and Grill since April 1993. According to respondent, she has been very alert to prevent drugs from being present on the premises, has signs posted in the bar prohibiting drugs, and has instructed her bartenders not to allow drugs and to phone the police if they see any drugs. Respondent further averred that in October 1993 she was hospitalized for an operation, and her ability to supervise the premises since that time was impaired. Notwithstanding, she was on the premises two to three times a day, and at shift change. According to respondent, her son Dave "watched" the premises for her when she was ill, but was not an employee. The testimony of Helia Mercado, respondent's nighttime bartender, was consistent with that of respondent. As heretofore noted in endnote 1, the testimony of respondent and Ms. Mercado that Dave was not an employee or agent of the owner was rejected as not persuasive or credible. Indeed, respondent's own testimony that Dave "watched" the premises for her, and Officer King's observation of his activities, compel the conclusion that Dave was an agent or employee of the owner. The testimony of respondent and Ms. Mercado that they had never observed any narcotics activity on the premises, as well as the efforts that were taken to discourage it, while of questionable credibility, stands unrefuted. Indeed, there is no proof of record that respondent was present on the premises when any of the transactions occurred that are the subject matter of the notice to show cause, and no proof that she or any of her agents or employees, except for Dave, were ever in a position to observe, much less observed, those or any other illicit activities on the premises. Under such circumstances, and given the limited number of transactions, the limited time of day at which they occurred, and the surreptitious nature of the majority of the transactions at issue, it cannot be concluded that respondent, based on the competent proof of record, fostered, condoned, or negligently overlooked such illegal activity.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the notice to show cause. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of April 1994. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April 1994.
Findings Of Fact On April 26, 1978, Petitioner was charged with speeding at the rate of 44 miles per hour in a 30 mile per hour zone and with failure to have an operator's license in his possession. He pled guilty to the speeding charge on May 2, 1978, and paid a $28.50 fine on May 5, 1978. In November, 1978, Petitioner was charged with being drunk in a public place and subsequently pled guilty to that charge on December 5, 1978, and paid a fine. In January, 1979, Petitioner was charged with the offense of illegal sale of alcoholic beverage to a minor and pled guilty to this offense on February 6, 1976, being fined $50.00. In January, 1977, Petitioner was charged with the offense of harassing and also charged with being drunk in a public place and pled guilty to both these charges on February 6, 1979, being fined for each offense. In September, 1979, Petitioner was charged with driving under the influence with a blood alcohol level of .17 percent; and on September 27, 1979, pled guilty to the amended charge of reckless driving, being fined $100.00. On January 27, 1981, Petitioner was charged with being drunk in a public place and for criminal trespass; and on January 27, 1981, he pled guilty to the charge of being drunk in a public place and was sentenced to one day in jail, with credit for time already served. On April 1, 1982, Petitioner was charged with careless driving in West Palm Beach, Florida, and subsequently pled guilty to this offense, being fined $25.00.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent enter a Final Order denying the application for licensure. DONE and ORDERED this 24th day of November, 1982, 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 24th day of November, 1982. COPIES FURNISHED: Jimmie L. Newcomb 2910 Melaleuca Drive West Palm Beach, Florida 33406 Ralph Armstead, Esquire Assistant Attorney General Department of Legal Affairs Room 212, 400 West Robinson Orlando, Florida 32801 C. B. Stafford, Executive Director Florida Real Estate Commission P.O. Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Department of Professional Regulation 400 West Robinson Street P.O. Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent, Everett R. Rogers d/b/a Circus Bar (Respondent), has been licensed by Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), to sell alcoholic beverages under License No. 39- 602, Series 2-COP, for licensed premises located at 1118 West Kennedy Boulevard, Tampa, Florida, at all times pertinent to this case. Respondent's most recent license expired by its terms on September 30, 1985. Respondent voluntarily closed the business operated under his license on or about February 2, 1985. On or about February 2, 1985, Respondent initiated personal bankruptcy proceedings which encompassed the business which he was operating at the licensed premises. The licensed premises and Respondent's license have been turned over to Respondent's trustee in bankruptcy. On February 2, 1984, three marijuana cigarettes were possessed, sold and delivered at the licensed premises with the knowledge of Respondent's bartender, Bobby Warner.2 On February 3, 1984, the licensed premises were visited by a person named Melvin Stusse and undercover police officer Paul Miller for the purpose of the sale of cocaine, although no sale took place. On February 3, 1984, three grams of marijuana were possessed, sold and delivered at the licensed premises. On February 3, 1984, undercover police officer Thomas Kinsella possessed marijuana on the licensed premises with the knowledge of bartender Warner. Kinsella asked Warner for something in which to place a baggie of marijuana, and Warner took Kinsella to the stockroom to give him a paper clip box for that purpose. On February 6, 1984, bartender Warner and patrons of the licensed premises gambled on the pool table in the licensed premises. On February 8, 1984, the sale of eight marijuana cigarettes was negotiated at the bar in the licensed premises but the delivery took place outside the premises and there was no evidence that the marijuana was possessed in the licensed premises. On February 9, 1984, three marijuana cigarettes were sold, delivered and possessed at the licensed premises with the knowledge of Respondent's manager, Joan Sammons. On February 13, 1984, the sale of approximately two and one-half grams of marijuana was negotiated at the licensed premises with the knowledge of bartender Warner. The marijuana was delivered outside the licensed premises, and there was no evidence that marijuana was possessed on the licensed premises. On February 24, 1984, six marijuana cigarettes were sold, possessed and delivered on the licensed premises with the knowledge of manager Sammons. On February 28, 1984, approximately two and one-half grams of marijuana were sold, possessed and delivered on the licensed premises with the knowledge of bartender Warner. On March 5, 1984, bartender Warner possessed, sold and delivered five marijuana cigarettes on the licensed premises. On March 6, 1984, manager Sammons sold, possessed and delivered approximately two grams of marijuana on the licensed premises. On March 7, 1984, manager Sammons purchased $50.00 worth of USDA food stamp coupons for $25.00 on the licensed premises. On March 19, 1984, manager Sammons purchased $150.00 worth of USDA food stamp coupons for $75.00 on the licensed premises. Also on March 19, 1984, four marijuana cigarettes were possessed, sold and delivered on the licensed premises with the knowledge of manager Sammons. On March 21, 1984, approximately 1.2 grams of marijuana were possessed, sold and delivered on the licensed premises. It was not proved that any of Respondent's employees were aware of this transaction. On March 30, 1984, Respondent's bartender, Steve Keller, possessed, sold and delivered approximately three and one-half grams of marijuana on the licensed premises. Manager Sammons also knew about this transaction. Respondent had a policy against illegal drug activity and gambling on the licensed premises. He enforced the policy when he was on the licensed premises. Respondent posted signs prohibiting gambling and told employees that they should evict patrons suspected of illegal drug activities or gambling. But Respondent did little or nothing to ensure that his policies were followed evenings and weekends when he was not present at the licensed premises. Respondent performed no background checks on his employees and continued to employ Sammons as his manager although he knew she had been arrested. Respondent had no written employment application or written instructions for his employees. Respondent did not polygraph his employees.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking alcoholic beverage license number 39-602, Series 2-COP, held by Respondent, Everett R. Rogers d/b/a Circus Bar, 1118 W. Kennedy Blvd., Tampa, Florida. RECOMMENDED this 19th day of December, 1985, in Tallahassee, Florida. L LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1985.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent P R of Brevard County, Inc., doing business as Shark Lounge, was the holder of Florida Alcoholic Beverage License Series 4-COP No. 15-00177 for the Shark Lounge, located at 411 North Orange Avenue, Cocoa Beach, Florida. On March 15, 1984, Terry A. Altman, a special agent for the U.S. Treasury Bureau of Alcohol, Tobacco and Firearms (BATF), in an undercover capacity and in the company of Investigator Gloria Smith of the Division of Alcoholic Beverages and Tobacco (DABT), also in an undercover capacity, entered the Shark Lounge at approximately 2:00 a.m. They had been there before on March 12, 1984, when an employee of the Respondent, the bouncer Harry Haynes, had offered to sell marijuana to Smith. On this March 15th visit, they spoke with an employee by the name of Sherry, and Smith asked if Haynes was there. When Haynes showed up, Smith asked him if he had been able to obtain any of the marijuana he had mentioned previously, whereupon Haynes told her that cocaine was easier to get than marijuana. However, Haynes made some telephone calls and shortly thereafter requested that Altman come outside with him. Altman complied, at which time Haynes requested $30. Altman paid the $30 to Haynes and then went back inside the bar. A little later, Haynes came in and motioned Altman and Smith to come outside, where Haynes handed Altman a plastic envelope containing a green leafy substance. Upon subsequent laboratory analysis, this substance was determined to be marijuana. On March 22, 1984, Altman and Smith went back to Respondent's lounge, where Smith saw Haynes behind the bar. At this time, she asked Haynes if she could get cocaine, and Haynes indicated that he had already ordered some for her. At approximately 2:00 a.m., Haynes came in and told Altman to go outside with him. Haynes quoted a price of $50 a half gram for the substance. Altman paid Haynes the $50 and went back inside, while Haynes went someplace else. A few minutes later, Haynes came back into the bar and requested that Altman again come outside. When he did so, Haynes handed him a small plastic bag of a white powder, suspected to be cocaine, which Altman took back into the lounge and gave to Smith. Sitting at the table and making no effort to conceal her actions, Smith held the package up to the light, tapped the bag to get the substance to one corner, and then put it into her purse. Haynes at that time guaranteed the quality of the substance and offered to get them more in the future if they so desired. This substance was subsequently analyzed and determined to be cocaine. Thereafter, on March 24, 1984, Smith, in the company of undercover agent Jenkins, entered the lounge at about 9:30 p.m. She introduced Jenkins to Haynes and asked Haynes if he could get some cocaine for them. Haynes replied that he could do so but that his source would not be in until later in the evening. At approximately 3:30 the following morning, while Haynes was busy attempting to break up a fight which had just started, an individual identified as Haynes' source entered the bar, and Haynes pointed out Smith to him. This source, identified as Ric, came to Smith and gave her what was subsequently identified as cocaine in a plastic bag, for which she paid him $50. By this time, the lights, which had previously been turned out in an attempt to help stop the fight, were back on, and there was no attempt on the part of Ric to conceal the transaction. Later in the evening, Haynes asked Smith if she had been taken care of. Again, on April 8, 1984, Altman entered the Shark Lounge at approximately midnight. He approached Haynes, who was acting as a bouncer at the entrance, and asked to buy a half gram of cocaine. Haynes asked Altman to step outside and agreed to procure the cocaine for Altman if he would front the money for it. Altman paid Haynes $60 in cash at the Shark Lounge, and, pursuant to the agreement between the parties, the cocaine was subsequently delivered later that afternoon at the Canaveral Pier. The transfer of money from Altman to Haynes took place near the door in front of an independent security guard hired by Respondent. Haynes explained the transfer as being a payoff of a bet. On April 17, 1984, at approximately 9:00 p.m., Smith and Altman again entered the Shark Lounge and engaged Haynes in conversation, at which time Smith indicated that she wanted some more cocaine. Haynes replied he would get it, and Altman gave him $40 to purchase a half gram of cocaine. It was understood between them that Smith and Altman would be back the following evening to pick up the cocaine. When they did come back at approximately 11:45 p.m. on April 18, Haynes, who was out in the parking lot, motioned Altman to get into an Oldsmobile car, which Altman did. Haynes then removed the package of cocaine from the car's ashtray and attempted to give it to Altman, saying that it was good stuff. Altman, however, indicated that Smith had paid for it and that Haynes should give it directly to her. The two men then got out of the car and approached Smith, who was standing near the outside of the door to the lounge. Haynes attempted to give Smith the cocaine at that time, but she would not accept it and instead went into the lounge to use the restroom. As Haynes and Altman followed Smith into the lounge, Haynes pressed the cocaine onto Altman, indicating that he wanted to get rid of it. When Smith came back from the restroom a few moments later, Haynes told her he had already given the cocaine to Altman, who took it out of his pocket and put it in Smith's lap. She examined the cocaine and put it in her purse in full view of the other patrons of the bar. This substance, delivered by Haynes to Aliman and in turn to Smith, was subsequently identified as cocaine. Neither agent went back to the bar until April 26, 1984, at approximately 1:30 a.m., when Altman and Smith, in the company of Special Agent Eslinger of the U.S. Drug Enforcement Administration (DEA), entered the bar. They contacted Haynes, who was working as a bartender at the time, and Smith asked him to get a half gram of cocaine for her. Haynes agreed to do this and told her to check with him the next day to see if he had procured it. At the time of her request, Smith gave Haynes $50 for the cocaine. No further contact was had until late in the evening of April 30, 1984, when Altman, Smith, and an unidentified confidential informant entered the lounge. Smith asked Haynes at that time if he had obtained the cocaine she had paid for on April 26, and Haynes said that he had. This conversation took place near the door, where Haynes was working as a bouncer. Haynes took a plastic envelope containing a white powder from his right front pocket and gave it to Smith, who brought it back to the table and showed it to Altman. Later, pursuant to Smith's invitation, Haynes came to their table and said that over the weekend he had obtained some sensinilla, some speed, and another substance. Smith said she would like to have some speed, and Haynes said he could get 30 capsules of it for $15, which she gave to him. At this point, Haynes showed Smith a package of a black substance which he identified as hashish and offered to sell to her for $5. Smith did not buy any, however, and she, Altman, and the informant departed the lounge after telling Haynes they would be back for the speed the next night. The white powdery substance that Smith obtained from Haynes that night was subsequently tested and found to be cocaine. When Smith went back to the lounge on May 4, 1984, at 11:00 p.m., this time with Eslinger alone, she contacted Haynes, who was working as the bouncer. Haynes told her he had the speed which she had paid for previously on April 30 and told them to go sit down. Shortly thereafter, Haynes motioned for Smith to come over to the door area, and, when she did so, he briefly stepped outside the lounge and then immediately came back. When he returned, Haynes put a package inside Smith's purse, which she saw and which he stated was only 25 capsules instead of the 30 she had paid for. At this point, Smith asked Haynes if she could pay him $50 in advance for a half gram of cocaine, which Eslinger would pick up the following day at the Canaveral Pier. When Haynes agreed, Smith gave him the $50 while they were inside the bar. Thereafter, she and Eslinger left. The capsules which Smith received from Haynes that night in the lounge did not contain amphetamines or any other determinable controlled substance. When Altman and Smith next returned to the bar on June 3, 1984, they found Haynes standing by the entrance. About a half hour after they went in, Smith asked Haynes if he had any cocaine and, when he replied in the affirmative, gave him $50 in advance for a half gram of cocaine. The arrangements made at that time were that the cocaine would be picked up on June Somewhat later, when Altman and Smith were leaving, Haynes told Smith not to leave yet, that his source was getting the cocaine out of his car. Altman and Smith waited, and a few minutes later Haynes came up to Smith at the bar and dropped into her purse a small plastic bag which contained a white powdery substance subsequently identified as cocaine. When Haynes dropped the bag into her purse, Smith took it out and examined it in plain view at the bar, which was well lighted, before putting it back into her right-hand pocket. Shortly thereafter, Altman and Smith left. The packages containing cocaine, which Smith held up to the light to examine, were approximately an inch and a half by an inch and a half in size. Although other employees were in the immediate area at the time that she held the packages up, and Altman does not know hew they could have avoided seeing what Smith was doing, Altman cannot say for sure that the employees did see it, nor can Smith. No other employees of the Respondent were involved in any of the drug deals except for Haynes. No other employees were in the immediate area when the sales were made. Neither Smith, Altman, nor Eslinger engaged in any discussion of drugs with any other employee of the bar on the numerous times they were in there. Smith contends that she first went into the bar on March 12, 1984, with Altman to pick up some drugs offered at another bar. She started talking to a male at her right and asked him if he knew where she could get some grass. This individual said yes and went to make a phone call. Later, he identified himself as Harry Haynes and said that he worked there as a bouncer but was not on duty on that particular night. The drugs were not delivered that night, either. On March 14, at 2:00 a.m., Altman and Smith again went into the lounge. Smith approached Sherry, the bartender, and asked for Haynes, who was not there. Smith told Sherry that Haynes was to get her some grass, and, in Smith's opinion, Sherry did not react to this disclosure at all. Sherry, on the other hand, denies any conversation with Smith about drugs. She indicated that Smith came to her frequently and asked for Haynes but never mentioned drugs in any capacity. Had Smith done so, Sherry states, she would have asked her to leave. This last comment stands to defeat Sherry's credibility, however. It is unlikely that the comment was made. It is also unlikely that an experienced bartender, as Sherry is, would react by asking a repeat patron to leave for mentioning that Haynes was to get marijuana. Sherry is the only one in the bar, except for Haynes, to whom Smith mentioned drugs, although she had a conversation about drugs with Haynes in front of Ric, who is apparently also a bouncer. When Smith asked about that, Haynes said that it was okay. There is a divergence of opinion regarding the reputation of the Shark Lounge as a source of drugs. Randy Arles, a Melbourne Beach police officer on loan to the Cocoa Beach Police Department Vice Squad since mid-March of 1984 and operating undercover, was contacted previously by a confidential informant who indicated there was cocaine traffic at the Shark Lounge. Based on that information, Arles and another officer went in to try to make a buy but were unsuccessful because, as it was explained to him, his identity as a police officer had been disclosed. Information reaching him from such street sources as confidential informants and prostitutes indicated that the Shark Lounge was known as a place to buy cocaine and that Haynes, the bouncer, was the seller. This latter information, however, is hearsay testimony and, with the exception of that relative to Haynes, cannot serve as the basis for a finding of fact. The identity of Haynes as the seller is corroborated by other independent admissible evidence, however. On the other hand, Officer Charles B. Autry, who has been with the Cocoa Beach Police Department for 14 years, has come into contact with the Shark Lounge and its owner on several occasions and has been inside the lounge four or five times. To his knowledge, it is a well-run establishment, and he has never in his 14 years been called there while on duty. The owner is very businesslike and very cooperative. He runs a tight ship and encourages the police to come inside both while on and off duty. In Officer Autry's opinion, considering today's morality, any place where crowds congregate has the potential for drugs, including the Shark Lounge, which he would not class as a nuisance. This opinion was also held by Major Gary Hummel, who has been with the Cocoa Beach Police Department for 14 years. He has been in the Shark Lounge on many occasions and knows the owner personally. He considers Mr. Autry to be an upright businessman who is not himself involved in drugs. The lounge in question here is one of only two lounges in Cocoa Beach that Hummel will patronize and take his wife. Both socially and professionally, he knows of no employees who sell drugs at the lounge, but the employees know he is a police officer, and this may have some bearing on their behavior in his presence. Hummel believes the owner is tough and knows that he will fire any employee for being drunk on duty. He also discharges employees for even the slightest infractions of rules. This bar is not a nuisance in his opinion but is a good clean place where many of the Cape workers go. These sentiments were reinforced by the proffered testimony of Officers William MacDonald and Al Otto of the Cocoa Beach Police Department, who both have been in the Shark Lounge frequently both socially and professionally. They have been encouraged to come in by the owner and find the lounge to be a clean, well-run, drug-free operation. Sharon LeVaugh (Sherry) has worked at the lounge as a bartender for six and a half years and runs the floor operation. Her immediate supervisor is the owner, Mr. Autry, who, to her knowledge, has a strict policy against drugs. Anyone using them, whether it be an employee or a patron, is immediately put out of the place. There is a low turnover of employees at the Shark Lounge, because it is a good place to work. During the six and a half years she has worked there, Sherry has never seen drugs used at the bar. She had no idea that Harry Haynes was dealing in drugs and doesn't think anyone else did. The Shark Lounge is dark inside like a normal lounge. The crowd which patronizes it is made up of regulars, both young and old, with repeat patronage common. A lot of business comes from Space Center employees, and police are encouraged to come in frequently. Friday and Saturday nights are quite busy, with 200 to 300 people in attendance. The bar offers live music seven nights a week, and the music is a noisy rock and roll band. Chad J. Milkint, the manager of the Shark Lounge, has worked there for a little over a year. Before that, he worked at another bar in the area for three years and has been in the lounge business both in Florida and outside the state for more than 11 years. When Milkint was hired, the owner was very clear about the "no drug policy," and he has followed it closely. He has, on occasion, thrown people out for being intoxicated either on drugs or alcohol. There is, he claims, a practical reason for this. If a patron is intoxicated, he is not buying drinks, and they are in business to sell drinks. Milkint did not know Haynes was using drugs or selling them. If he had, he would have fired him immediately. It was not at all unusual for Haynes to go outside as part of his job. In fact, Haynes' duties included a patrol of the outside area around the bar three or four times a night. Milkint admits he did no background check on Haynes except to check with his former employer, who gave Haynes a favorable recommendation. Haynes was a part-time employee who worked two or three days a week as a backup to the main barmen in addition to his duties as a bouncer. In a normal week, Haynes would work approximately 20 hours and had been employed sporadically by the bar for only five or six months. During the period of employment at the lounge, Haynes also worked at the Canaveral Pier. When Milkint checked with the beverage manager there, he was told that Haynes' performance was satisfactory. Milkint is frequently in the bar and observes what goes on. He denies ever seeing anyone check baggies by tapping or holding them up to the light, as described by Altman and Smith. He does not believe his employees saw that, either, because he feels that if they had seen it they would have reported it. The owner also supervises on a day-to-day basis, and in Milkint's opinion the operation is a good, ethical, well-run establishment. The employees are good, the entertainment is good, and the drinks are good and sold at fair prices. Milkint does not know how he could have prevented the sales by Haynes that took place there. Gary C. Autry, sole stock owner of the Shark Lounge, has owned the establishment for eight years. He used to work more in the bar than he does now, but a recent blood condition has developed that has made him curtail his activities. When Autry came down with this condition, he hired Milkint as a manager and an individual by the name of Mike Harris as an assistant. He has known both of them for years and knew both had previous lounge experience. When he hired them, Autry told them immediately that his policy was "no drugs whatsoever." Although he cannot spend as much time in the establishment as he used to, Autry is nonetheless there seven days a week and closely supervises his operation. His bouncers are trained to handle drugs and work with the police. Had Autry known Haynes was selling or using drugs, Haynes would have been dismissed immediately. When he hires employees, he asks them their habits. He believes that because of his policies his turnover of employees is as low as it is.
Findings Of Fact At all times material to the instant case, Respondent was the holder of beverage license No. 54-279-S, Series 6COPS. The license was obtained by the Respondent by transfer in September, 1977. The licensed premises is located at the Key Wester Inn, 975 South Roosevelt Boulevard, Key West, Florida. The Key Wester Inn and the licensed premises are owned and operated by Mr. Mel Heifetz, the Respondent herein. On September 10, 1983, Beverage Officers Frank Oliva and Leonard DelMonte went to the licensed premises to investigate a complaint of drug sales taking place inside the licensed premises. The officers entered the lounge at approximately 7:00 p.m. The licensed premises are called the Inner Circle Lounge and consists of three areas. The main portion of the lounge is a large room with a bar along the south wall and a bandstand and dance floor in the northwest corner. The remainder of this area is filled with tables and chairs. To the east of the main bar is a large room which opens onto the main bar area through two large openings. This area contains tables and chairs. To the west of the main bar area is a deck and patio area called the pool bar area. When the officers arrived at the licensed premises on September 10, they sat on two bar stools at the northwest end of the pool bar. The two officers engaged a white female waitress named Lori Hart in conversation. Eventually the conversation led to a discussion of drugs and Officer Oliva asked if she could sell him some quaaludes. She said that she could not but that she could sell them cocaine if they would return at 10:00 or 10:30 p.m. that evening. She also said that the price would be between $80 and $100 and that she would have to be turned on also. This meant she would inhale some of the cocaine she sold them. The officers agreed and then left. The officers had never met Lori Hart before and no one at the bar had vouched for them or introduced them to her. At approximately 10:00 p.m., the officers returned to the lounge and sat on two bar stools at the west end of the pool bar. Lori Hart walked up and asked if they still wanted the cocaine and the officers responded "yes." She said the price would be $80. She then asked a bartender named George to tend bar for her. She picked up her purse and walked into the interior bar area and then returned and walked to the area of the bathrooms near the pool. The two officers followed her to the bathroom area. When they reached the bathroom area, the door to the ladies' room was closed. About five to ten minutes later the manager of the lounge, George Font, came to the bathroom area and went into the men's room to wash his hands. He left and a few minutes later came back and knocked on the door to the ladies' room and said "Lori you have customers." After George Font left, Lori Hart came out of the bathroom, and exchanged a packet of cocaine for $80 cash from Officer Oliva. On this particular evening, Pedro Corpion, an off-duty police officer working as a security guard at the licensed premises, was seen in the pool bar area at various times. The location where the exchange took place is a hallway adjacent to the pool area restrooms and is not visible from anywhere in the bar. On September 16, 1983, Officers Oliva and DelMonte returned to the licensed premises. They were accompanied by Faye Francy of the Monroe County Sheriff's Department. They sat at a table next to the dance floor and adjacent to the north wall of the interior lounge. While seated at the table, a waitress named Linda Carteret took their order for drinks and Officer Oliva asked if she could sell them 2 grams of cocaine. She said she would see what she could do. She later returned to the table and stated she could only get 1 1/2 grams. About a half hour later, she returned to the table again and stated that she did not have quite 1 1/2 grams so the price would be $110 rather than $120 as originally stated. Officer Oliva said o.k. and told her that the money was under a napkin on the table. She crouched between his chair and the chair where Faye Francy, who was dancing, had been seated. She placed a small packet of cocaine wrapped in a one dollar bill under Officer Oliva's left leg. When Linda Carteret crouched at the table and transferred the cocaine, she had her back to the bar area. These actions were being watched by Whitney Russel Papy, an investigator for the state attorney's office, from a table nearer the bar and he could not tell that an exchange or buy had taken place until Officer Oliva, by prearranged signal, got up and left. Officers Oliva and DelMonte had never met Linda Carteret before and had not been introduced to her before asking to purchase cocaine. On the evening of September 15, 1983, Officers DelMonte and Oliva returned to the licensed premises. They sat at the west end of the interior bar and ordered drinks. Lori Hart was working behind the bar and at approximately 9:30 a.m., Officer DelMonte and Oliva returned to the licensed premises. They sat at the west end of the interior bar and ordered drinks. Lori Hart was working behind the bar and at approximately 9:30 a.m., Officer DelMonte asked Lori Hart to sell him a gram of cocaine. She said she could get it and a short while later, she returned to where the officers were seated and placed a bulging matchbook on the bar in front of Officer DelMonte. Inside the matchbook was a small plastic baggie containing cocaine. Approximately five minutes later, Officer DelMonte ordered a drink and gave Lori Hart $100. She walked to the register, rang up the drink, and returned and handed him $17.00 in change. The price of the cocaine was $80.00 and the drink cost $3.00. Officer DelMonte placed the matchbook and cocaine in his pocket. On the evening of September 16, Paul Carr, the manager of the Key Wester Inn, came into the lounge several times. He walked in, looked around the lounge, remained for a few minutes and then left. The band was playing in the lounge this particular evening. On September 17, 1983, Officers DelMonte and Oliva were again in the licensed premises for the purpose of attempting to purchase drugs. They sat at the east end of the interior bar. Officer DelMonte placed four (4) $20.00 bills in a matchbook and placed it on the bar in front of him. A few minutes later, Lori Hart, who was behind the bar, saw the matchbook and said she would get the stuff. Some of the numbers of one of the twenty dollar bills were showing. Lori Hart asked if there was $80.00 in the matchbook and Officer DelMonte responded "yes." She took the matchbook and a short while later placed a napkin in front of Officer DelMonte. Inside the folded napkin was a small plastic baggie containing cocaine. Officer DelMonte placed the cocaine and napkin in his pocket. On this particular evening, off-duty Police Officer Pedro Corbione was working inside the lounge and was out of uniform. He passed the bar area where the officers were seated while the matchbook containing the money was on the bar. However, there was no evidence that Officer Corbione saw the matchbook. The band was playing in the lounge this evening. Beverage Officers DelMonte and Oliva returned to the licensed premises on September 22, 1983, at approximately 9:15 p.m. They were joined a few minutes later by Deputy Francy of the Monroe County Sheriff's Department. The three officers sat at a table just inside the large sitting area to the east of the interior bar area. The table where they were seated was partially obscured from vision of the bar area by a short wall that extended to the edge of the large entrance way. While seated at the table, Officer Oliva asked Linda Carteret if they could purchase some cocaine. She was on duty as a waitress. A short time later, Lori Hart walked over and asked if they were still interested in a gram of cocaine. Officer Oliva said yes and she asked for $80.00. Officer Oliva told her he didn't think he should be so open and she agreed. She told him to give the $80.00 to Linda who came over a few minutes later and picked up a napkin with the $80.00 beneath it. After taking the money, Linda Carteret returned with a foil packet under a napkin and placed it on the table. The foil packet contained cocaine. Both women were on duty as cocktail waitresses when this transaction took place. There was nothing suspicious about the actions of the officers or Lori Hart and Linda Carteret during this transaction. The transfer took only a few seconds and the foil packet was not visible beneath the napkin. This was a very secretive transaction and the exchange itself was not observed by Deputy Faye Francy who was seated at the table with Officers Oliva and DelMonte. The area where the officers were seated was dimly lit. The band was playing in the lounge this evening. On September 28, 1983, Officers Oliva and DelMonte returned to the licensed premises. They entered the lounge at approximately 7:00 p.m. and sat at the same table they had sat at on the evening of September 22. They had first entered the interior bar area and sat at the bar, but after they were joined by Linda Carteret, they went to the table. Officer Oliva asked Linda Carteret to sell them some cocaine and she responded that she had heard rumors that they were police officers. Officer Oliva convinced her that they were not police officers and she then agreed to sell them 1 gram of cocaine for $80.00. She went to the bathroom area and when she returned she placed her hands over Officer Oliva's hands and dropped the plastic baggie containing cocaine into his hands. He then handed her the $80.00. The entire exchange took about 5 seconds. While this transaction took place, the bar manager, Don Crawford, was seated at the east end of the interior bar with his back to the table where the officers and Linda Carteret were seated. This particular evening, Linda Carteret was not working at the lounge. No indication of a transaction was observed by Harry Sawyer, an investigator with the state attorney's office. Harry Sawyer was in the lounge on September 28 as a backup to Officers Oliva and DelMonte. A band was playing in the lounge on this evening. Lori Hart had previously worked at the Inner Circle Lounge in 1982. She terminated when she went home to visit her family and was rehired in January, 1983. There were no problems with her work in 1982. However, in April, 1982, an administrative complaint was made against the Respondent's license charging that Lori Hart had failed to check the identification of a minor and had sold the minor a drink. She was not terminated at that time because she was needed as a witness in the administrative proceedings. Lori Hart resigned some time prior to September 28, 1983, because she was changed to a different shift and location in the lounge. Lori Hart was initially hired as a cocktail waitress and was transferred later to bartender. Prior to being hired she was interviewed by the bar manager and by the manager of the Key Wester Inn, who oversees the entire property where the Inner Lounge is located. She was required to obtain and provide the management with an ID card which is obtained from the Key West Police Department. This ID is required for persons working in Key West and in order to obtain an ID, an application with certain background information must be given and a photograph is taken and placed on the ID card. Lori Hart was also required to fill out an employment application for the lounge. On this application, she was required to give background information and references and these were checked by the manager. At the time she was hired in January, 1983, Lori Hart was required to sign a form which states: As an employee of the Key Wester Inn I understand that it is unlawful to drink alcohol or take any form of drugs that are not prescribed by a doctor during the performance of my shift of work. And further I realize this would be grounds for dismissal. Each employee hired was required to sign such a form. The Inner Circle Lounge and Key Wester Inn had a policy against any drugs on the premises and this policy was explained to all employees when they were hired and was repeated on a continual basis. Employees caught with drugs or alcohol while on duty were terminated under this policy. Linda Carteret was employed in September, 1983. She was hired the same day she applied because the lounge was short one cocktail waitress. She was interviewed by the bar manager who requested that the manager, Paul Carr, allow him to hire her immediately. Mr. Carr approved the hiring but did not interview her. Linda Carteret was also required to provide the lounge with the ID card obtained from the Key West Police Department and was informed of the policy of drugs and alcohol while on duty. The Key Wester Inn is owned by Respondent and is managed by Paul Carr, the resident manager. Mr. Carr has 2 years experience in the hotel, restaurant and lounge business. Prior to September 12, 1983, George Font was manager of the lounge. Mr. Font had been asked to resign because of poor performance and it was agreed that September 12, 1983, would be his last day. After Mr. Font left, Don Crawford, originally hired as a cook was promoted to bar manager. He was given no authority or real responsibility because he was considered to be in a training status. Paul Carr, the resident manager actually took over management of the lounge begining September 12. The evidence did not establish that Mr. Font or Mr. Crawford was aware of the drug transactions that occurred in September, 1983. Mr. Paul Carr, the resident manager, had no knowledge of any drug transactions or drug problems in the lounge. The bar manager was in the lounge each night full-time. Paul Carr was at the lounge when it opened and closed and visited the lounge several times each evening at random times. Prior to July or August, Mr. Pedro Carbione, an off-duty Key West Police Officer worked as security officer at the entrance to the lounge. He checked ID's and watched the outside area. In July or August, Officer Corbione, on Paul Carr's recommendation, moved inside the lounge to work security. When he moved inside the lounge, he no longer worked in uniform. The evidence failed to establish that Officer Carbione was aware of any drug transactions taking place in the licensed premises. The Respondent has held the beverage license in question since 1977. Since that time, there have been no prior charges involving drugs. The only prior charge against the license involved selling to minors. The Respondent and his staff have cooperated with local authorities in prior drug investigations and the licensed premises enjoy a reputation in the community as a nice, decent place to go and dance. The Inner Circle Lounge is frequented primarily by business people, military officers, and local residents including law enforcement officers. The patrons are primarily thirty to fifty years of age. The lounge does not have a reputation in the community as a place where drugs can be sold or used or as a place frequented by people who use drugs. At no time prior to service of the Emergency Suspension Order was Respondent or his staff informed of a drug problem in the Inner Circle Lounge by the Division or local authorities. Lori Hart and Linda Carteret made several statements during the sales and during interrogation after their arrest which indicated some knowledge of the drug sales on the part of George Font and Don Crawford. This evidence was considered by the hearing officer and considered to be of no probative value in light of the total lack of any direct evidence which would show knowledge on the part of those individuals and because of the contradictions between such statements and the very secretive manner in which all the sales were made.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED That the Respondent be found NOT GUILTY of the violations charged in the Notice to Show Cause and that the charges be dismissed and the license immediately restored. DONE and ENTERED this 15th day of November 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 15th day of November, 1983. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida Charles L. Curtis, Esquire 1177 S.E. Third Avenue Ft. Lauderdale, Florida 33316 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the allegations herein, Respondent, Luke Range, d/b/a Flame Bar and Lounge, possessed a 4-COP alcoholic beverage License No. 15-96 for the Flame Bar and Lounge located at 355 Magnolia Street, Cocoa, Florida. Respondent Range purchased the Flame Bar several years ago. At that time, it was known as the Central Bar and, according to community representatives, at the time of purchase, was an extremely bad operation. Since his purchase of the bar, Respondent has upgraded it and gotten rid of many of the problems that plagued it when it was known as the Central Bar. At that time, there were numerous assaults, gambling violations and other offenses frequently conducted on the premises. Several members of the Cocoa Police Department have responded to the Flame Bar for various reasons as a result of disturbance calls and for other similar reasons over the months leading up to the summer of 1983. Many of these individuals, such as Nicholas Blankenship, were in the bar during the month of July, 1983, on several different occasions. Blankenship, for example, entered several times during that month and, each time he entered, he saw people smoking what appeared to be marijuana and smelled what appeared to be the odor of burning marijuana. Though he saw this drug activity, and though he was on duty, he did not make any arrests for drug violations because, in his own terms, it would be "suicidal" for an officer to attempt to make an arrest either by himself or with only one other officer in attendance. Blankenship reported what he had seen to Vice Squad Detectives Mike Blubaugh and Mike Brown. This same situation was described by another Cocoa police officer, John Willingham, who also was in the Flame Bar on several occasions during July, 1983, and clearly saw individuals smoking what appeared to be marijuana or smelled the heavy odor of marijuana. He did not make any arrests, but did report the information he observed regarding drug abuse to the vice squad detectives or the chief of police. Willingham has received anonymous phone calls concerning the sale of narcotics outside the bar. However, when he would arrive there in a marked police vehicle, he would normally not find anyone engaged in that activity. The two vice squad detectives, Blubaugh and Brown, also are familiar with the Flame Bar. In the course of their police work, on several occasions they have been notified of narcotics activity there and, when it was known as the Central Bar more than three years ago, it was known for its drug activity. In the summer of 1983, Blubaugh was given information that there were several drug dealers working both inside and outside the Flame Bar and, according to his information, it was known as a place where drug dealers hang out. He entered the Flame Bar several times during the summer of 1983 accompanied by different officers each time. To his knowledge, there is drug activity both outside the bar and in or around the apartments and pool hall across the street from it. He has on different occasions seen and smelled marijuana in the bar. He has monitored a police officer who was wired for sound and in that exercise heard a sale of narcotics being accomplished there. He has made no arrests for narcotics violations in the bar, nor has he ever seen the Respondent in the bar when drug transactions were taking place. Based on these complaints and others of a similar nature relating to other bars in the area, the chief of police for Cocoa, Florida, met with Jimmie E. Powell, the District Supervisor for District XII, Division of Alcoholic Beverages and Tobacco (which includes Brevard County, Florida) at the Cocoa Police Department and asked for help in investigating narcotics violations in the black community in Cocoa. The Flame Bar was not singled out for specific investigation during this conversation. Pursuant to this request, Maria L. Scruggs, a Division of Alcoholic Beverages and Tobacco agent, entered the Flame Bar at 10:45 p.m. on July 8, 1983. While she was there, she met an individual named Michael Jenkins, from whom she purchased $10 in drugs outside the bar. While inside, she saw what appeared to be widespread smoking of marijuana. She concluded this because of the smell and the method of cigarette rolling that she observed, and she also observed patrons snorting a white, powdered substance which they usually pulled out of tinfoil packets. In her estimation, there were on this occasion between 100 and 150 patrons in the building of whom the majority were engaged in some type of drug activity. On this occasion, she saw a maximum of three employees, two males, one female. She came back to the Flame Bar on July 9 at 9:00 p.m. On this occasion, she met a black female named Gloria Jean, whom she told she wanted to buy cocaine. Gloria Jean introduced Scruggs to a black male named Reagan, from whom she purchased a white, powdered substance, subsequently tested and identified as cocaine. Reagan was not an employee of the bar, but, instead, a patron. After that second buy, since her undercover identification was as a model, she asked Gloria Jean to meet the manager of the bar. This proved to be Willie Cooper, who identified himself to her as the manager and who introduced her to an individual named Sweet Jimmy. Scruggs asked this gentleman if he would sell her a 10-cent piece of cocaine (a 10-cent piece equates to $10, a 20- cent piece to $20, etc.). Sweet Jimmy indicated he did not have any 10-cent pieces, but would sell her a 25-cent piece. Scruggs had seen this individual make sales out of his sock, and she also bought $20 worth of the substance, which was subsequently identified as cocaine. While Scruggs was sitting there, several black males came up and talked with her. While doing so, they engaged in several sales of what appeared to her to be narcotics to other individuals right at the table where she was sitting with Sweet Jimmy. It was her impression that night (July 9) that besides dancing, the general activity of the people in the Flame Bar was either dealing in or using narcotics. On July 15, 1983, Scruggs again entered the bar in the company of Paul Blackmon at 9:30 P.M.. She introduced Blackmon to Cooper as her boyfriend. At this time, she engaged Cooper in a discussion regarding the fashion shows which she, as a "model," desired to bring into the bar. These discussions took place in what Cooper described as his office and, during the conversations, the issue came up regarding the use of narcotics. Scruggs told Cooper she was concerned about bringing a fashion show into the bar because she was afraid of a raid. Cooper told her at this time not to worry, that the police had a deaf ear to any narcotic activity there. She asked Cooper if cocaine was available, and he said it was. At this point, Blackmon and Scruggs went over to the bar and, shortly thereafter, Cooper came up to Blackmon and gave him a package for which Blackmon paid Cooper some money. Cooper put this money into his pocket and then went back to tending bar. The substance received from Cooper by Blackmon that night was subsequently tested by the laboratory at the Florida Department of Law Enforcement and determined to be cocaine. Scruggs and Blackmon came back again the following night, July 16, at approximately 8:55 P.M.. When they entered, they saw patrons snorting what appeared to be cocaine and smoking what appeared to be marijuana. Upon entering, they went directly to the bar, where Blackmon talked with a black male named Gillaman, who was the relief bartender. On this occasion, Cooper was not present when Scruggs and Blackmon entered, but did come in within a few minutes thereafter. Blackmon asked Cooper if he could get any coke like he had gotten the night before. Cooper immediately left the area and shortly thereafter came back with a tinfoil package for which he got money from Blackmon. This substance was also subsequently identified by the Florida Department of Law Enforcement as cocaine. Scruggs had met Respondent at another club during this period and states she had talked to him at the bar about the modeling shows mentioned previously. Respondent advised her she would have to talk to Mr. O. P. Smith about it, giving her Smith's phone number to contact him. The one call she made, however, did not get through. During the conversation she had with Respondent, she used her undercover name of Cynthia. Respondent denies that the conversation with Scruggs ever took place, further denying that he has ever met her. The equipoise of this situation is somewhat abated, however, when one considers the probability of the evidence. It is unlikely that Scruggs would make up a story as detailed and as complex as she has. On the other hand, it is quite likely that Respondent would not recall a particular conversation of several months previously regarding a subject as mundane as a modeling show with an individual he met only once. Therefore, weighing the evidence, it is more likely that Ms. Scruggs' version prevails and that, in fact, she and Respondent did meet. Blackmon returned to the bar one other time, on July 20, 1983. On this occasion, he talked with an obvious juvenile who identified himself as "Cookie" and who he asked if he could get cocaine. This juvenile went over to another man identified as Juan Cidbury, from whom he got a package and returned to Blackmon. Blackmon purchased this substance, which was subsequently identified upon laboratory analysis as cocaine, and during the entire time, Cooper was standing behind the bar and observing the transaction. Neither Blackmon nor Scruggs ever saw Respondent, Luke Range, on the premises of the Flame Bar when they were there. Willie Cooper, who is presently unemployed, worked for the Respondent at the Flame Bar for approximately a year and a half up to July of 1983, when he was fired by the Respondent, who found out about the investigation that was going on. Cooper was subsequently arrested on charges arising out of the alleged sales of cocaine described herein and was found guilty on at least one charge. The Flame Bar was open until 2:00 a.m. Cooper's immediate supervisor was O. P. Smith, who would come in three or four times a day. Respondent would come into the bar once or twice a day, mostly in the mornings. Cooper knew that some of the patrons smoked or used narcotics on the premises, but he never reported these problems or these incidents to the Respondent. His instructions were to stop any drug activity immediately, either by directing the offender to leave, or, in the event the offender failed to do so, by calling the police. Cooper has frequently called the Cocoa Police Department because of disturbances at the bar, but admittedly has never done so because of drug offenses. Respondent had indicated to Cooper that he did not want drugs in the bar. As a result, neither Cooper nor any of the other bartenders at the Flame Bar kept drugs on the premises or dealt in drugs there. In this case, he got the drugs for Scruggs and Blackmon because she, Scruggs, asked him to do so and he liked the way she looked. He got the cocaine that he sold on these occasions from outside the bar from individuals in the area. The cocaine, however, was not kept in the bar until he brought it in for the immediate sale. Oliver Smith works for Respondent as general manager of both the Flame Bar and the 20-Grand bar and has done so since 1980. His office is in the 20- Grand, which is located approximately a mile from the Flame Bar. During the normal business day, he starts at the Flame Bar, staying there for two or three hours, then goes to the 20-Grand. During the day, he goes back and forth between the bars several times. He did not have any knowledge of Cooper having drugs on the premises or of Cooper having any drug problems or in fact any problems with the law before this incident. He has never seen drugs used in the Flame Bar; he has smelled marijuana, but has never seen it smoked there; and he claims he is usually there during the busy times. He has not discussed the issue of drugs with the Respondent because he did not see that drugs in this bar were a problem. He has continued to instruct his bartenders to ask drug users to leave and, if they did not, to call the police. Since these incidents took place in July, 1983, management has hired several more people to work at the Flame Bar to keep out drugs. They have also added more lights to the place to brighten up the area. Numerous individuals personally testified for Respondent, including such responsible persons as Nathaniel Hooks, a Lieutenant in the Cocoa Police Department who has been with that department for 17 years. He recalls the Flame Bar when it was known as the Central Bar and, at that time, it was considered a bad place for drugs. However, since Respondent has taken over ownership, there has been a tremendous decrease in the number of police calls to the area and a marked increase in its beautification. Hooks himself has been in the Flame Bar at various times and has never seen drug activity in there. To his knowledge, there have been no drug arrests at the Flame Bar within the past year by people under his supervision and, according to his understanding, the police department has not complained to Respondent about his establishment. To the contrary, it is Hooks' understanding that Respondent came to the former chief of police back sometime prior to this investigation in an attempt to get more police coverage in the area for several reasons, one of which was not drugs. Both Willie Cooper and the Respondent have good records with the police department and have not been in any difficulty whatsoever. Of the 91 calls logged by the Cocoa Police Department from the period November 26, 1982, through June 30, 1983, there were no calls for alleged drug violations. Hooks admits to being a friend of the Respondent over a period of years. He owns and operates a security company in his off-duty time in Cocoa from which the Respondent contracts for security for the 20-Grand bar. He also provided security for a former club owned by the Respondent. He has contracts with eight other businesses to provide security. Leon Collins, a former city councilman in Cocoa from 1973 to 1983, has been a friend of the Respondent for 18 years or so and has known him through his. activities with several civic organizations. Respondent has an outstanding reputation in the area and has contributed greatly to city and civic organizations, as well as to churches and youth organizations. Collins goes into the Flame Bar about once a month to have a drink. He has never seen anyone in the Flame Bar smoking or using drugs. Robert Manning, the Principal of Poinsett Middle School in Cocoa, which is located about six to seven blocks from the Flame Bar, has known the Respondent for approximately 14 to 15 years. When he, Manning, was Vice Chairman of the Human Relations Commission in Titusville, Florida, on one occasion, Respondent came to speak to that organization in support of the Commission's position on Project 235 housing. At that time, Respondent was a builder building Project 235 housing in Central and South Brevard County. Respondent was also a participant with NASA and Brevard Community College in forums on minority business opportunities. Respondent is a big supporter of his school and has raised money for it. Respondent also contributes to civic and humanitarian causes in the community, and Mr. Manning is certain that Respondent would not condone any illegality in any of his businesses. He sees Respondent as a clean liver personally who has made a tremendous difference in cleaning up the old Central Bar. The Principal of Cocoa High School, Richard Blake, is also the Chairman of the Rockledge City Council, on which he has served for 10 years. He has known Respondent well for 12 to 13 years, after Respondent came to the Cocoa area from Detroit and lived with Blake's parents for a while. He knows Respondent to be very active in civic affairs. Respondent was the witness's campaign treasurer at one time and has a very high reputation in the business, lay and church communities. He always supports activities for underprivileged children and has an upright character and high principles. Respondent has a reputation as a builder, not a destroyer, and Mr. Blake has seen significant positive changes in both the 20-Grand club and the Flame Bar since Respondent has been involved with them. In his opinion, Blake feels Respondent would take immediate and direct corrective action if he knew drugs were being used in his club. This sentiment is also held by Barbara L. Jenkins of Cocoa, a teacher/counselor of adult education at Brevard Community College who knows the Respondent through his community activities. Ms. Jenkins feels the Respondent is unique in that he is interested in the total community and will do all he can for the community or get it done if he cannot do it himself. He supports programs both for children and the elderly, and his general reputation in Cocoa, as she knows it, is as an advisor to work hard to reach goals. In her opinion, Respondent would not condone drugs in his establishment. She feels that if Respondent is guilty of anything, it is of being too trusting. Ricardo Davis is a member of the executive board of the local NAACP chapter and was its president during 1983. 59 far as is his knowledge, neither the NAACP nor the City of Cocoa prompted an investigation of the Flame Bar in particular because of drug activity in that establishment. Mr. Davis has known Respondent for ten years and considers him as one of the leading black businessmen in the community whose character is above reproach. He does not believe Respondent would condone drugs in his premises. These sentiments and sentiments similar thereto are expressed in the 23 testimonial letters submitted by Respondent from diverse people, including business leaders, professional people, ministers, law enforcement officers, educators and the like. Without question, it is obvious that Respondent has an excellent reputation in the community for honesty, integrity, square dealing and high business and personal scruples. In his own testimony, Respondent indicated he was not aware that anything close to the type of activity described in the testimony here was going on. His manager, Smith, had told him there were drug problems in the general area, and he had asked the police department for help in policing the area, but he had no idea any of it was going on in his establishment. Cooper did not talk to him about drug activity, either. It was Respondent's continuing instruction to his employees that if anyone was illegally using narcotics, to put that individual out, and if the individual refused to go, to call the police. Neither the police nor the Division of Alcoholic Beverages and Tobacco ever contacted him about drug problems prior to the investigation, a fact which is admitted by representatives of both agencies. Respondent went to the Flame Bar three to four times a week at different times of the day, normally, however, before 8:00 P.M.. He never saw any drug activity of any kind at anytime that he went in there, nor did his bartenders ever tell him of any going on. In short, no agency, including the police, the Division of Alcoholic Beverages and Tobacco, the sheriff's office, and the city council (he knew and met with several councilmen on a repeated basis) , ever told him there was any problem with drugs in his establishment or interest in his area. His first knowledge of this investigation was when the beverage agents called him to their office and told him what had happened. He immediately thereafter fired Willie Cooper, who had never given any indication over the three years he had worked for Respondent that he used or had any connection with drugs. In efforts to reduce the potential for drug activity, as was previously referenced by Smith, Respondent has cut hours of operation for the Flame Bar to six hours per day, has increased lighting in the place and has employed security guards at the Flame Bar to work directly for him, a situation he has had in effect since 1979, when he first took the bar over.
Recommendation That Respondent's license be suspended for ninety (90) days and that he pay a fine of $1,000.
The Issue Whether respondent's alcoholic beverage license should be disciplined on grounds that (1) illicit drugs were sold and delivered on its premises by its agents and employees, and (2) its premises was used for the selling and delivery of illicit drugs.
Findings Of Fact Butch Cassidy's Saloon Licensee, 1431 Corporation, owns a business known as Butch Cassidy's Saloon located at 1431 North Federal Highway, Dania, Florida. In connection with its operation of Butch Cassidy's, Licensee holds alcoholic beverage license No. 16-02422 series 2-COP. Under this license, Licensee sells beer and wine for on-premises consumption. Soft drinks and sandwiches are also served. The entertainment consists of female nude dancers who perform to juke box music. Licensee is owned by Don Austin and George Sherman. Austin and Sherman operate and manage Butch Cassidy's Saloon; they alternate work shifts so that, except for short temporary absences, one or the other is always on the premises. The premises contain a bar, a stage and runway for the female dancers, two dressing rooms, a business office, and rest rooms. It is dimly lit, though not completely dark; the lighting is most pronounced above the pool tables and along the length of the dance stage. II. Sale or Delivery of Controlled Substances on Premises On August 10, 1981, at approximately 11:30 p.m., Beverage Officer L. Terminello entered Butch Cassidy's Saloon ("the premises") with a confidential informant. After sitting at the rear of the premises, he asked "Connie," a female dancer employed by Licensee, if she' could sell him some quaalude tablets; she answered affirmatively. Several minutes later, she returned and handed him five tablets; he paid her $15. Subsequent laboratory analysis of the tablets by the Broward County Sheriff's Office revealed the presence of diazepam. (Testimony of Terminello; P-16.) On August 12, 1981, at approximately 9:40 p.m., Officer Terminello again entered the premises and sat at a table at the rear. After some initial conversation, a customer known as "Jerry" asked him if he would buy some ludes"; Terminello agreed. Jerry placed the tablets on Terminello's table. Terminello picked them up and gave him $3 for each tablet. Subsequent laboratory analysis of the tablets revealed the presence of diazepam. (Testimony of Terminello; P- 15.) Later on that evening (August 12, 1981), Connie, in response to Officer Terminello's request, sold him another quaalude tablet for $2. The transaction took place, again, at a table located opposite the stage, at the rear of the premises. Subsequent laboratory analysis of the tablet revealed the presence of diazepam. (Testimony of Terminello; P-17.) On August 15, 1981, at approximately 11:30 p.m., Officer Terminello again entered the premises and sat at a table at the rear. He asked a female dancer known as "Dusty" (who was employed on the premises) whether she had any cocaine or quaaludes. She said she had none but offered, instead, a marijuana cigarette which she took from her pocketbook and handed him. He left her a tip of $1 for the cigarette. This drug transaction occurred in the vicinity of the pool table, an area which is well-lighted in relation to other parts of the premises. Subsequent laboratory analysis of the cigarette confirmed that it contained cannabis. (Testimony of Terminello; p-18.) On August 19, 1981, at approximately 10:40 p.m., Officer Terminello reentered the premises and sat at another table in the vicinity of the pool table. He again asked Dusty, a female dancer, if he could buy some cocaine. She said he might be able to purchase some from "Don," the doorman, but that he sold a lot of cocaine by "stepping on it"--a street term for cutting cocaine. She told him that another dancer, known as "Renee," could provide better cocaine; he decided to wait for Renee. While waiting, he asked Dusty if she would sell him some quaalude tablets; she agreed and delivered two tablets to him at his table. He paid her $3 each. Subsequent laboratory analysis of the tablets revealed the presence of diazepam. (Testimony of Terminello; P-19.) Dusty then asked Terminello if he wanted to smoke a "joint," meaning a marijuana cigarette. They then walked outside to the parking lot and smoked the cigarette. Subsequent laboratory analysis indicated that the cigarette contained cannabis. (Testimony of Terminello; P-20.) Later that evening, at about 1:00 a.m., Officer Terminello returned to the premises and contacted Dusty for the cocaine promised earlier. Dusty went over and talked to Renee, then returned to Terminello's table near the pool table. She told him that the cocaine would cost $80. He handed her $80 which she placed in her pocketbook. Shortly thereafter, she returned from a dressing room and handed him a plastic bag containing white powder. This exchange took place in an area where there were 15-20 patrons; several of them were 2-3 feet from Terminello. Subsequent laboratory analysis of the powder revealed the presence of cocaine. (Testimony of Terminello; P-21.) A short time later, Renee asked Officer Terminello if he wanted to purchase more cocaine; he replied that he would buy another one-half gram. After completing her performance on the dance floor, she agreed to sell him one- half gram for $40. At her request, he placed $40 in her garter belt; shortly thereafter, she returned from the dressing room and handed Terminello a white zip-lock bag of white powder. This transaction took place in a relatively well- lighted area, with a clear line-of-sight to the dance stage and bar. Subsequent laboratory analysis of the powder revealed the presence of cocaine. (Testimony of Terminello; P-22.) Officer Mike Berk of the Broward County Sheriff's Office entered the premises (with Terminello) at approximately 12:30 a.m., on August 20, 1981. After sitting at a table near the dance stage, he asked a female dancer (employed by Licensee) known as Robin" if he could buy some quaaludes; she handed him one white tablet. This exchange took place in a relatively well- lighted area of the bar. Subsequent laboratory analysis of the tablet revealed the presence of diazepam. (Testimony of Berk; P-23.) On August 29, 1981, at approximately 11:45 p.m., Beverage Sergeant George Miller entered the premises, sat at a table near the dance stage, and asked a female dancer (employed by Licensee) known as "Jackie" if she could get him some quaaludes. She asked him to wait. Approximately an hour later, she indicated that she could obtain some quaaludes; she approached the bartender (employed by Licensee) known as "Rusty." He removed a tablet from his pocket, laid it on the bar, and cut it in half. He handed one-half of the tablet to Jackie who returned to the table and handed it to Miller. Subsequent laboratory analysis ,of the one-half tablet revealed the presence of diazepam. (Testimony of Miller; P-24.) On September 2, 1981, Sergeant Miller reentered the premises, sat at a table near the dance stage and was joined by a female dancer (employed by Licensee) known as "Candy." From her seat, she shouted to Dusty, the bartender (who was approximately 10 feet away) : "Make some calls for some ludes, I want to get f cked up." (Testimony of Miller.) On September 10, 1981, at approximately 8:15 p.m., Beverage Officer Mike Imperial entered the premises, sat at the bar and asked Connie (a female dancer) if there were any "ludes" around. She replied that she didn't know but she would check. She then asked Jackie who, in turn, said she would check with "Ann," another female dancer employed by Licensee. Jackie then returned and said that no one had any quaaludes. Connie then told Imperial that she would be off-duty the next day but that she would leave six quaaludes for him with Tom, the bartender. She then told the bartender that she would leave something with him to give to Imperial (and his companion) the next day. (Testimony of Imperial.) The next day, September 11, 1981, at approximately 7:20 p.m., Officer Imperial reentered the premises and spoke with Tom, the bartender. Tom told him that Connie had not arrived yet, that he would check around the bar but that he doubted anyone had quaaludes because it was too early. Imperial then departed the premises. (Testimony of Imperial.) The next day, September 12, 1981, at approximately 7:00 p.m., Officer Imperial (accompanied by a confidential informant) returned to the premises. They sat at the bar, where Tom, the bartender, told them that the quaaludes were not then available but would be there soon. Shortly thereafter, Tom went to the rest room, then returned to the bar and handed Imperial ten white tablets wrapped in a bar napkin. Tom then handed the informant (who accompanied Imperial) a loose tablet and openly stated, "Here's one for the road." Subsequent laboratory analysis of the tablets revealed the presence of methaqualone. (Testimony of Imperial; P-25.) On September 23, 1981, at approximately 8:30 p.m., Beverage Officer Imperial (with his confidential informant) reentered the premises, sat at the bar, and asked a female dancer (employed by Licensee) known as "Gail" if there was any "pot" around. She replied that she would see if she could find him some; later, she returned and handed the confidential informant two cigarettes. Subsequent laboratory analysis of the cigarettes revealed the presence of cannabis. (Testimony of Imperial; P-26.) On September 28, 1981, at approximately 4:10 p.m., Officer Imperial reentered the premises and sat at the bar. He observed an unidentified female dancer (employed by Licensee) approach Tom, the bartender, and ask if he had a "joint." Tom replied that he had one, then removed a partially smoked cigarette from his wallet and handed it to the dancer. She placed it in her mouth and asked him for a light; he replied, "Don't do that here, I'm already on probation." The dancer then departed, saying that she would smoke it in the dressing room. Several patrons were nearby when this exchange took place. (Testimony of Imperial.) III. Open, Persistent, and Recurring Nature of Illicit Drug Activity on the Premises The illicit drug transactions described were open, persistent, and recurring; they took place in fairly well-lighted areas of the premises. The actions of Licensee's employees who engaged in such activities can fairly be described as practiced and routine. When undercover law enforcement officers asked for illicit drugs, the employees actively cooperated in an effort to accommodate them. The drug activity on the premises was not isolated or limited to one or two employees; it was pervasive during the evening hours, involving at least six different employees or agents. Drugs were either available on the premises or readily obtainable. During the course of the two-month investigation, at least ten illicit drug transactions took place on the premises. (Testimony of Terminello, Imperial, Berk, Miller.) However, no evidence was presented which established that, during the time in question, illicit drugs were actually used on the premises. Several customers testified that they had never seen anyone selling, buying, or using drugs on the premises, that no one had ever approached them attempting to buy or sell drugs. 2/ (Testimony of Leighton, Redgate, Johns, Smith, Bushmann.) George Sherman and Don Austin, owners and operators of the bar, testified that they had a policy against the use or sale of drugs on the premises; that they advised new employees of this policy, posted a sign in the dressing room restating the policy, 3/ and fired employees who violated it. However, the practiced and recurring nature of the drug transactions demonstrates that their anti-drug policy was not diligently and aggressively implemented. The drug transactions took place in a relaxed atmosphere of permissiveness. The employees made little effort to conceal the transactions; drug use was openly discussed and joked about. Neither George Sherman nor Don Austin were personally involved in any of the drug transactions in question. However, they failed to aggressively monitor and supervise their employees; they failed to effectively emphasize that drug activity on the premises would not be tolerated. Their lack of diligence in this regard allowed their employees to develop an attitude which fostered illicit drug activity on the premises. (Testimony of Sherman, Austin, Terminello, Berk, Miller, Imperial.) The open, persistent, and practiced nature of the drug transactions on the premises supports an inference that, if Austin and Sherman did not know that they were occurring, they should have known with the exercise of reasonable diligence. (Testimony of Terminello, Berk, Miller, Imperial.) During the 4 1/2 years it has operated the premises, the Licensee has not been found guilty of violating the beverage law or any other law of this State. (Testimony of Sherman, Austin.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division of Alcoholic Beverages and Tobacco suspend respondent's beverage license for 120 days. DONE AND RECOMMENDED this 23rd day of December, 1981, 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 23rd day of December, 1981.
The Issue The parties stipulated as to the identification of all drugs seized and purchased by the investigators. The issues presented in this case are as follows: Whether the individual counts as set forth in the Notice to Show Cause took place as alleged; Whether Jerry Alden ("Alden") was an employee, agent or servant of the Respondent; Whether Respondent was culpably negligent in the supervision of the licensed premises. Both parties have submitted posthearing proposed findings of fact. A ruling has been made on each proposed findings of fact in the Appendix to this Recommended Order.
Findings Of Fact At all times pertinent to the allegations in the Notice to Show Cause, the Respondent, Michael George Shlepr, d/b/a Eau Gallie Inn, was the holder of a valid Alcoholic Beverage License #15-1912, series 4-COP, issued by the Petitioner to the Respondent for the Eau Gallie Inn located at 1841 Avocado Avenue, Melbourne, Brevard County, Florida. On January 22, 1986, Detective Bruce Triolo of the Melbourne Police Department ("MPD") entered the licensed premises as part of an undercover investigation of narcotics trafficking. Triolo was accompanied by a confidential informant who frequented the licensed premises and was well known by the patrons and employees of the licensed premises. During said evening, Triolo was approached by an individual known as Jerry Alden (and also referred to as "Jerry Holden" during the hearing), who asked Triolo if he wanted to buy marijuana. Triolo indicated he desired to purchase marijuana and thereafter met Alden in the parking lot of the licensed premises where Triolo purchased two bags of marijuana from Alden. On January 23, 1986, Triolo again entered the licensed premises as part of an undercover investigation. Triolo and Alden negotiated the sale of marijuana inside the licensed premises and Triolo met Alden in the picnic area adjacent to the building (see diagram in Petitioner's Exhibit 1) where Triolo purchased marijuana from Alden. This picnic area was included in the diagram of the licensed premises and made a part thereof at the suggestion of an agency employee after the undercover investigation of the licensed premises had begun. This area is irregularly shaped and has at least one entrance to it which cannot be observed from inside the licensed premises. On January 24, 1986, Triolo again entered the licensed premises as part of an undercover investigation. Triolo discussed purchasing marijuana from Alden. On this occasion, Alden asked the bartender, "Lynn," to hand him his jacket. Lynn brought Alden his jacket from a small office area behind the bar and gave it to Alden. Alden took a bag of marijuana from the jacket and delivered it to Triolo while they were sitting at the bar of the licensed premises. On January 28, 1986, Triolo entered the licensed premises as part of an undercover investigation and spoke with the bartender identified as "Bruce." Triolo asked Bruce where he could find Alden and was advised that Alden "was around." Triolo asked Bruce about purchasing marijuana and Bruce offered to sell Triolo one marijuana cigarette. Bruce took $1.50 from Triolo's change that was on the bar as payment for the cigarette. On January 31, 1986, Triolo entered the licensed premises as part of an undercover investigation. Triolo negotiated with Alden in the licensed premises the purchase of marijuana, which was delivered and paid for in the men's bathroom of the licensed premises by Alden. At that time, Alden asked Triolo if he was interested in purchasing any cocaine. Triolo said that he was and Alden left and returned in approximately 15 minutes. At that time, Alden met Triolo by the picnic table in the picnic area. Alden showed Triolo several cocaine rocks and sold Triolo one for $20.00. During the time that this transaction was taking place, the bartender, "Shawn," was standing at the back door of the licensed premises observing what was taking place in the picnic area. On February 25, 1986, Triolo entered the licensed premises with Agent Richard White of the Division of Alcoholic Beverages and Tobacco as part of an undercover investigation. Triolo purchased a bag of marijuana from Alden while sitting at the bar. Shawn, who was the bartender, handed Alden the bag of marijuana from behind the bar and Alden delivered the bag to Triolo. On February 26, 1986, Triolo entered the licensed premises as part of an undercover investigation. While there, he discussed the purchase of marijuana from "Marie," another patron. Marie delivered the marijuana to Triolo inside the licensed premises and Triolo passed the marijuana to White in the open while both men were sitting at the bar in the licensed premises. As part of an undercover investigation, on March 7, 1986, Triolo entered the licensed premises where he negotiated the purchase of a bag of marijuana with Alden. Alden only had one bag and a white female patron had also indicated she wanted to purchase a bag of marijuana. Alden met with the white female and Triolo at the picnic table in the picnic area and split the bag of marijuana between the white female and Triolo. On the same night, a patron, Brian Riordon, sold and delivered cocaine to Triolo in the parking lot of the licensed premises. On March 9, 1986, Triolo and White attended a party in the licensed premises for which they had purchased tickets as part of the continuing investigation. On this occasion, which was on a Sunday, Shlepr was present and served beer to Triolo and White at 11:57 a.m., contrary to Melbourne City Ordinance that prohibits the sale of alcoholic beverages prior to 1:00 p.m. on Sundays. On March 13, 1986, White entered the licensed premises as part of an undercover investigation with Triolo. White engaged in wagering on a game of liar's poker with another patron, "Tim," at the bar in front of the bartender. On March 14, 1986, Triolo entered the licensed premises and negotiated the purchase of marijuana with Alden. Triolo gave Alden $60.00; however, Alden returned and said he could not get the marijuana and gave Triolo his money back. The negotiations for the purchase took place in the licensed premises. On March 15, 1986, White entered the licensed premises with Triolo as part of their investigation. White began playing pool for money with Alden and another patron. The bartender, Lynn, was present and observed their gambling. On March 19, 1986, Triolo entered the licensed premises as part of an undercover investigation and discussed with Alden purchasing marijuana. Alden advised Triolo that "the marijuana was on its way over." In a short while, a white male patron, Dennis Thorp, arrived and delivered the marijuana to Alden, who in turn delivered it to Triolo. Subsequently, on March 19, 1986, Alden sold a stolen outboard motor to Triolo at an apartment in the vicinity of the licensed premises. The negotiations for the purchase of the stolen outboard motor took place on the licensed premises. On March 20, 1986, Triolo entered the licensed premises with White as part of an undercover investigation. Alden, with Dennis Thorp, sold and delivered marijuana to Triolo on the licensed premises. White engaged in a pool game with Alden for money on the same evening. As part of the continuing investigation, on March 26, 1986, Triolo entered the licensed premises where he discussed the purchase of marijuana with Alden. He subsequently drove Alden to a house in Melbourne which Alden entered and returned with several bags of marijuana. Alden explained that he had more orders for marijuana than he had bags of marijuana. As a result, the potential purchasers, to include Triolo, met with Alden at the picnic table in the picnic area at the Eau Gallie Inn where the bags were split. Triolo received part of a bag in return for driving Alden to pick up the drug. On April 1, 1986, Triolo entered the licensed premises as part of the ongoing investigation and discussed the purchase of marijuana with Alden. Alden sold and delivered marijuana to Triolo on the licensed premises. Subsequently, Alden approached Triolo with another white male, identified as "Ted" and discussed with Triolo the purchase of cocaine. Triolo gave money to Ted, and Ted and Shawn, a bartender at the Eau Gallie Inn, left the licensed premises together and returned with cocaine. Ted delivered cocaine to Triolo on the licensed premises. No evidence was received that Shawn was on duty the night in question. On April 3, 1986, Triolo entered the licensed premises as part of the continuing investigation. On this occasion he negotiated the purchase of marijuana from Alden and Thorp and cocaine from Alden and Ted on the premises. The cocaine was delivered in the picnic area. Evidence was not clear on where the marijuana was delivered. On April 4, 1986, Triolo entered the licensed premises as part of the continuing investigation. A patron, Mark Harrold, injected himself with drugs in the bathroom of the licensed premises while Detective Triolo guarded the door. On April 5, 1986, Triolo and White entered the licensed premises as part of the continuing investigation and spoke with Alden. A purchase of marijuana was negotiated and money was delivered by Triolo to Alden; however, when Alden returned with the marijuana, he had less marijuana than potential purchasers. Alden went into the kitchen area behind the bar where he split a bag and delivered half to Bruce, the bartender on duty, and half to Triolo. Alden approached White on the premises about purchasing a Colt revolver which Alden represented had been stolen. On April 9, 1986, Triolo entered the licensed premises as part of the continuing investigation. On this occasion, Alden delivered to Agent White in Triolo's presence, cocaine which White held up to the light and examined while standing at the pool table in the licensed premises. On said night, no marijuana was available for purchase; however, a number of people were in the picnic area smoking marijuana and free-basing cocaine. Also on April 9, 1986, Alden approached Triolo about purchasing some amphetamines. Alden left the premises and when he returned, sold to Triolo a substance represented to be amphetamines. However, upon analysis it was determined to be a caffeine derivative. Alden collaborated in this transaction with a patron known as "Doc Holliday." On the night of April 11/12, 1986, Agent White entered the licensed premises as part of the investigation. He discussed purchase of marijuana with Alden, who left the premises and returned after midnight. Alden delivered marijuana to White in the men's room. Shawn the bartender was in the toilet, came out, and saw Alden and White concluding the purchase of the drugs. Shawn asked if Alden would have a bag left which he could purchase. On April 15, 1986, Agent White brought up marijuana with the licensee, Shlepr, who was tending bar. Shlepr told White to put the marijuana back in his pocket; that he did not want to see it in the licensed premises. On April 16, 1986, Alden sold and delivered cocaine to Triolo on the licensed premises. Conflicting testimony was received concerning the status of Alden as an employee. The records of the licensed premises do not reflect Alden was an employee; however, the records of at least one other employee were also demonstrated to be incomplete or inaccurate. The licensee, Shlepr, testified that Alden was not an employee but was a regular patron who voluntarily would do helpful things around the licensed premises on occasion. Shlepr gave Alden free drinks on occasion in recognition of Alden's patronage and help. Triolo and White observed Alden on occasion taking beer from the stock room to the bar, clearing tables, and in one instance going next door to get Shlepr change. Triolo and White also observed that Alden had easy access to the area behind the bar, the small office behind the bar, the telephone, and cash register. Testimony was also received that during a portion of the investigation, Alden was dating one of the regular barmaids. Another of the regular bartenders testified Alden was not an employee. Based upon the most credible evidence, it is found Alden was not an employee; however, Alden was clearly permitted too much freedom in the licensed premises. The licensee, Shlepr, worked full-time on the evening shift at a local business in Melbourne at all times relevant to this complaint. He was on the premises from noon until the commencement of his shift and returned to the licensed premises after he got off work to close the licensed premises. He did not have a manager on the premises and the only employee present when Shlepr was not there was the bartender. The bartenders were given great freedom; one going so far as giving away drinks. The only two allegations which Shlepr could have observed or participated in were when Shlepr served the investigators beer on Sunday, March 9, and when White showed Shlepr marijuana on April 15. There is no allegation Shlepr had knowledge of the other incidents. Gary Michael Gordon was a substitute bartender during the period of the investigation at the Eau Gallie Inn, during which time and unto the present he was the Respondent's roommate. The identification of all the drugs mentioned above is accurate. There have been no previous disciplinary actions against this licensee. No evidence was introduced in support of counts 24 and 32. Respondent had no direct knowledge of the drug trafficking and gambling.
Recommendation Considering the fact that the violations of Sections 561.29(1)(a) and (c), Florida Statutes, arise primarily from acts of omission and not commission, and that only very minor and technical violations were attributable to the Respondent personally, it is recommended that the Respondent's license be suspended for six months; that he be fined $1,000; and that his presence or the presence of a responsible manager on the premises be required as a condition for continued operation. DONE AND ORDERED this 28th day of May 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 28th day of May 1986. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-1343 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties. Both Petitioner and Respondent filed proposed findings of fact in this case. These proposed findings were read, considered, and adopted unless the proposed finding was rejected for the reason stated. Rulings on Proposed Findings of Fact Submitted by Petitioner Adopted in paragraph 1. Adopted in paragraph 2. (NOTE: Petitioner's Proposed Findings of Fact contains two paragraphs numbered "3"; the paragraphs are herein referred to as Page 2, Paragraph 3, or Page 3, Paragraph 3. All other paragraphs in Petitioner's findings are referred to by their indicated number. Page 2, Paragraph 3 Adopted in part; rejected in part and rewritten in paragraph 25. Page 3, Paragraph 3 Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 8. Adopted in paragraph 9. Adopted in paragraph 10. Adopted in paragraph 11. Adopted in paragraph 12. Adopted in paragraph 13. Adopted in paragraph 14. Adopted in paragraph 15. Adopted in paragraph 16. Adopted in paragraph 17. Adopted in paragraph 18. Adopted in paragraph 19. Adopted in paragraph 20. Rejected; contrary to evidence. Adopted in paragraph 21. Adopted in paragraph 22. Adopted in paragraph 24. While the evidence taken as a whole might lead to this conclusory fact, this proposal is rejected. The facts surrounding the individual incidents are clear enough to permit the hearing officer to conclude that the Respondent knew or should have known about the conduct and was negligent in his supervision. Rulings on Proposed Findings of Fact Submitted by Respondent Respondent's repeated proposal that there was no evidence that Respondent had knowledge of the incidents is modified and adopted in paragraphs 29 and 30. Adopted. Rejected - argument. Reject first and last sentence as argument or summarization. Adopts second sentence in paragraph 25. Rejected; contrary to evidence. Description and nature of picnic area is addressed in paragraph 3. Adopted in paragraphs 2 and 3. Adopted in paragraph 4. Adopted in paragraph 5. 9&10. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 8. Adopted in paragraph 9. Adopted in paragraph 10. Adopted in paragraph 11. Adopted in paragraphs 12 and 14. Adopted in paragraph 14. Adopted in paragraphs 15, 16, 17, 18 and 20. Adopted in part in paragraph 29. Rejected in part as contrary to the evidence. Adopted in part in paragraph 20. Adopted in paragraphs 21, 22 and 24. Rejected as to Dowd and Taylor because they worked earlier shifts during the day when a different group of patrons were at the bar. Rejected as to Gary Gordon because of credibility. Rejected as contrary to evidence. Rejected as cumulative summary of specific findings relating to each charge. First sentence: Similar findings were made in paragraph 23; the remainder is rejected based upon lack of credibility. Adopted in paragraph 28. COPIES FURNISHED: Mr. Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927 Mr. James Kearny Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Bell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 David W. Dyer, Esquire Post Office Box 3648 Indiatlantic, Florida 32903
The Issue The issue presented herein, summarily stated, is whether or not the Respondent has allowed, fostered, condoned and/or negligently overlooked the trafficking in illegal narcotics and controlled substances on or about its licensed premises and has failed to exercise due diligence in supervising its employees and managing its licensed premises so as to curtail or prevent the illegal trafficking of illegal narcotics at its licensed premises.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, posthearing memoranda and the entire record compiled herein, I hereby make the following relevant findings of fact. Del Sol Enterprises, Inc., is a corporate entity which holds alcoholic beverage license number 39-2182, series 2-COP, and does business as THE PARADISE INN, located at 3513 North 22 Street, Tampa, Hillsborough County, Florida. John Gatto, Jr. is the President and sole corporate stockholder of Del Sol Enterprises, Inc., the Respondent corporation. On several dates during the period July 26 through approximately August 26, 1983, Officer Keith Hamilton of the Division of Alcoholic Beverages and Tobacco (Petitioner herein) and Tampa Police Department Officers, Chester L. Copeland, Corporal Vincent Rodriguez and Officer Frank L. Swope, conducted several surveillance and/or investigations of the licensed premises. Specifically, on July 26, 1983, Officer Keith Hamilton, a beverage officer employed by the Petitioner since approximately December, 1980, who is trained in the enforcement of beverage and tobacco laws, entered the licensed premises for the purpose of ensuring that the beverage and tobacco laws were being enforced. Officer Hamilton observed two black males seated in the southeast corner of the bar smoking a marijuana cigarette. Officer Hamilton observed the fact that the cigarette being smoked by the two black male patrons was not cylindrical but was, rather, irregular in shape. Officer Hamilton also noted the smell of the burning substance and the manner in which it was inhaled. At no time did any employee of Respondent make an effort to stop the above- referred behavior by the two black male patrons which was observed by Officer Hamilton. The following day, July 27, 1983, Officer Hamilton again entered the licensed premises. He engaged the off-duty barmaid, Vickie Jean Washington, in conversation. During the conversation, barmaid Washington was approached by an unknown black female who inquired if she (Washington) possessed any marijuana for sale. Officer Hamilton thereafter asked Washington if she could obtain some marijuana for him, giving her ten dollars in U.S. currency for the purchase of same. Washington exited the premises and, upon returning, informed Officer Hamilton that there was no marijuana worth purchasing. Later that evening, Washington asked Officer Hamilton if he desired some cocaine. Officer Hamilton gave Washington twenty dollars in U.S. currency and Washington produced two foil packs containing a substance later analyzed and identified by the FDLE crime laboratory as cocaine. The cocaine purchased by Officer Hamilton was maintained in his custody and control until it was turned over to beverage officer John T. Allen. Officer Allen maintained custody of the substance until it was placed into the evidence vault at the FDLE crime laboratory in Tampa, Florida. Officer Allen is responsible for the transportation of all evidence from the Petitioner to the FDLE crime laboratory for analysis. During the transportation of evidence in his custody, Officer Allen ensures that all evidence in his custody is properly marked and sealed and FDLE crime laboratory technicians who are responsible for logging and transferring submissions to analysts for analysis, ensure that all submissions received follow the FDLE crime laboratory policies and procedures for the receipt of submissions for analysis. Additionally, FDLE chemists who receive submissions for analysis will not perform an analysis upon a submission which is in any manner a departure from the FDLE crime lab's policies and procedures. (Testimony of FDLE crime laboratory technicians Myrtis Smith and Priscilla Miller, and FDLE crime lab analyst Anthony Ziberna) On July 28, 1983, Officer Hamilton again entered the licensed premises in an undercover capacity. Hamilton again met with off-duty barmaid Washington and observed Washington ingest the contents of two foil packages while standing at the bar (in the licensed premises) in open view. Officer Hamilton observed barmaid Washington break the substance of the foil packs upon the bar into small grains, lick the empty foil pack, and discard it on the floor. She proceeded to ingest the powder into her nose in a snorting manner. While on the premises that date, Officer Hamilton also purchased a small clear packet containing suspected marijuana from off-duty barmaid Washington. Officer Hamilton purchased the packet, which later was identified as marijuana by the FDLE crime laboratory, for ten dollars in U.S. currency. During the negotiation for the purchase of the marijuana, Officer Hamilton inquired of Washington if she was afraid to "do" the cocaine by the door and she responded that it was "okay." During the above transactions with off-duty barmaid Washington and her ingestion of the suspected cocaine, no one in the position of authority on the licensed premises attempted to stop either activity. After exiting the licensed premises, Officer Hamilton maintained complete custody and control of the suspected marijuana until such time as he turned it over to Officer Allen who properly marked the substance, maintained complete custody and control of it until it was turned over to the FDLE crime laboratory for analysis. On July 29, 1983, Officer Hamilton again entered the licensed premises. Upon entering the licensed premises, Officer Hamilton spoke with a black female who related that she was one of the managers of the licensed premises. While engaged in conversation with this black female, Officer Hamilton observed another black male snorting a "line" of suspected cocaine on the bar. Upon pointing this out to the female manager, no action was taken on her part to stop said activity. While on the licensed premises, Officer Hamilton was also approached by a black male who sold him a foil pack containing a substance, later identified as cocaine upon analysis by the FDLE crime laboratory, in exchange for ten dollars in U.S. currency. The substance was properly maintained under the custody and control of either Officers Hamilton, Allen, or analysts at the FDLE crime laboratory. On August 1, 1983, Officer Hamilton was again in the licensed premises. While there, Officer Hamilton observed several patrons smoking marijuana in the licensed premises. Hamilton inquired of the manager whether or not he had some marijuana and was advised that no one had any on this occasion. Officer Hamilton then departed the licensed premises. On August 2, 1983, Officer Hamilton again was on the licensed premises. While on the licensed premises, Officer Hamilton observed several patrons in the bar either smoking suspected marijuana or "doing" cocaine on the bar counter. On or about August 3, 1983, Officer Hamilton again entered the licensed premises and observed several persons engaged in the sale and use of suspected marijuana without any attempt to control such activity on Respondent's part. On or about August 5, 1983, Officer Hamilton again entered the licensed premises in an undercover capacity and observed approximately five or more transactions involving suspected marijuana and/or cocaine buys. While on the premises, Officer Hamilton purchased a package of suspected marijuana from a black male in exchange for five dollars in U.S. currency. Officer Hamilton left the bar with the suspected marijuana and maintained custody and control thereof until it was received by Officer Allen for marking and identification. Officer Allen thereafter proceeded to the FDLE crime lab where he submitted the substance for analysis. On August 15, 1983, Officer Hamilton again visited the licensed premises in an undercover capacity. While there, he observed barmaid Washington and several patrons smoking what he suspected to be marijuana. While that activity was ongoing, no one on Respondent's behalf attempted to stop such activity. On August 17, 1983, Officer Chester L. Copeland of the Tampa Police Department, Street Anti-Crime Section, entered the licensed premises as part of the same undercover operation. While there, Officer Copeland was approached by an unknown black male who asked Copeland if he desired to buy some cocaine. At this time, Officer Copeland purchased a foil packet of cocaine for the price of five dollars in U.S. currency. While on the licensed premises, Officer Copeland also observed the same individual make several drug sales in an open and unobstructed manner. Officer Copeland also observed several patrons in the bar smoking what he believed to be marijuana cigarettes. Officer Copeland has received training and is experienced in the detection and identification of controlled substances and their usage. Barmaid Washington, who was on the premises at the time, made no attempt to stop the above-referred activity observed by Officer Copeland. Upon leaving the licensed premises, Officer Copeland returned to the Tampa Police Department and administered a valtox chemical test upon the suspected cocaine purchased while at the licensed premises and the results thereof were positive for the presence of the controlled substance cocaine. Officer Hamilton also entered the licensed premises on August 23, 24 and 25, 1983. While on the premises on August 23, 1983, Officer Hamilton observed on-duty barmaid Washington smoke marijuana and snort what he suspected to be cocaine from the top of the east bar. While there, Hamilton approached an unidentified black male patron and asked if he could purchase some cocaine. This inquiry resulted in a sale of suspected cocaine in exchange for ten dollars in U.S. currency. Upon leaving the premises, Officer Hamilton maintained custody and control of the suspected cocaine until it was turned over to Officer Tim Allen. Officer Allen thereafter maintained control of the suspected cocaine until it was submitted to the FDLE crime laboratory for analysis. While on the premises on August 24, 1983, Officer Hamilton again observed off-duty barmaid Washington snort a powdery substance suspected to be cocaine. This activity by Washington as in the presence of a patron and was done on the bar corner in the licensed premises. At no time did anyone on Respondent's behalf attempt to stop said activity. While on the licensed premises on August 25, Officer Hamilton was approached by a black male from whom Officer Hamilton had purchased suspected cocaine on a prior occasion. Pursuant to an inquiry by that patron, Officer Hamilton proceeded to purchase a quantity of suspected cocaine in exchange for ten dollars in U.S. currency. Upon exiting the premises, Officer Hamilton proceeded to the Tampa Police Department where he delivered the suspected cocaine to Officer Tim Allen. After marking and receiving the suspected cocaine from Hamilton, Officer Hamilton submitted it to the FDLE crime lab for analysis. On August 23, 1983, Officer Copeland again entered the licensed premises in an undercover capacity. While there, he purchased a baggie of suspected marijuana from a black female in exchange for ten dollars in U.S. currency. While there, Officer Copeland observed on-duty barmaid Washington snort a white powdery substance suspected to be cocaine in addition to smoking what he recognized as a marijuana cigarette. Upon leaving the premises, Officer Copeland returned to the Tampa Police Department where he ran a valtox chemical test on the suspected marijuana which results were positive for the controlled substance marijuana. The licensed premises is situated in an area of Tampa whereby drugs and other drug-related problems are commonplace. Narcotics and other controlled substances are readily purchased in and around the immediate area where the licensed premises is situated. The FDLE crime laboratory has uniform policies and procedures respecting the acceptance of substances submitted for analysis. Prior to acceptance by the FDLE crime lab, submissions must be properly marked, identified, and sealed. Thereafter, the submission from the agency involved is placed into an evidence locker or vault where it is kept under lock until such time as it is removed for analysis by a lab chemist. Chemists for the FDLE crime lab will not conduct a chemical analysis on a suspected substance where there is any evidence of tampering with the submission or if the submission is not sealed upon receipt by the chemist. Finally, there was no evidence introduced herein that any of the submissions received (6) were in any manner tampered with prior to analysis by the chemists from the FDLE crime laboratory (Testimony of chemist Anthony Ziberna) Of six (6) submissions submitted by the Petitioner to the FDLE crime lab, only those submissions dated August 26 and August 2, 1983 proved not to be controlled substances under the provisions of Chapter 893, Florida Statutes. Jerry Cumbie, a self-employed contractor, has done substantial remodeling work on behalf of the Respondent corporation for many years. On approximately August 5, 2/ Mr. Cumbie started remodeling and other construction of the licensed premises in an effort to prohibit patrons from using the licensed premises for hiding controlled substances. Among the things Mr. Cumbie did was close off a section of the dance area (the north side of the bar) to prevent patrons from going into that area to smoke marijuana; the tying down of the ceiling tiles and erection of new paneling to keep patrons from hiding drugs behind loose walls. Harold Gillespie, the manager of the Paradise Inn, has been employed by the Respondent corporation for approximately 12 years. Mr. Gillespie is approximately five feet five inches tall and weighs approximately 290 pounds. He is the only black male manager at the Paradise Inn during the months June and July of 1983. Mr. Gillespie acknowledged that drugs were a problem in the area and that that problem overflows into the licensed premises. In an effort to curb that overflow, Messrs. Gillespie and Gatto met with representatives of the Tampa Police Department Vice Squad during June or July of 1983 and advised the vice employees of their problems with drugs in the area. Mr. Gillespie recalled that he spoke with a Sergeant Kester and a Captain Stallings of the Tampa Police Department. Mr. Gillespie recalled having apprehended numerous patrons in the licensed premises who were using illegal drugs on the premises. Mr. Gillespie ejects any patron from the licensed premises that refuses to stop the illegal use of controlled substances while on the premises. He has also taken other steps including turning off water in the lavatories to make it difficult for drug users to "setup" in order to conveniently use the drugs. Mr. Gillespie also sought the assistance of police officers from the local precinct and recalls speaking to an Officer Keys and others who work out of the local precinct in the area of the licensed premises. Mr. Gillespie fired Vickie Washington when she was arrested for drugs. Finally, Mr. Gillespie instructed employees to patrol the restrooms and other vacant areas to attempt to curtail patrons from the use of illegal or prohibited drugs in the licensed premises. John Gatto, Jr., the president and owner of the respondent corporate entity since 1965, has owned and operated as many as six (6) liquor establishments at one time. Presently, the Respondent operates four bars and has sold two within the last six months. Del Sol Enterprises has experienced one problem with the Division of Alcoholic Beverages and Tobacco prior to the subject incident. That problem occurred approximately 8 years ago when a janitor sold a bottle of liquor before opening hours. Mr. Gatto also recalls contacting Sergeant Jones of the Tampa Vice Squad and was assured that the vice squad would help to the extent practicable with the drug related problems. Mr. Gatto spent approximately $4,000 for remodeling the licensed premises in an effort to shut it off from patrons in areas which could not be easily supervised. Mr. Gatto acknowledges the existence of the drug problems in the licensed premises and in the area and concedes that more employees would possibly alleviate part of the problem. However, he counters that the establishment was losing money and that he did the best that he could do with the available help under the circumstances. Mr. Gatto employed Vickie Washington on approximately July 17, 1983. Manager Gillespie inquired of her background and got reports that she was "pretty clean." Mr. Gatto was unaware that Vickie Washington used drugs while on the licensed premises. Mr. Gatto recalled having found drugs in the cocktail tables; loose paneling areas of the licensed premises; and in pockets in the billiard tables. Mr. Gatto frequented the Paradise Inn approximately twice per month to check the manner in which the establishment was operating. He had no knowledge of the number of drug transactions that were occurring in the licensed premises and does not condone or otherwise foster the use of drugs in the licensed premises. Finally, Mr. Gatto tied the ceiling tiles down with wire and installed a booth in the entrance area to check who went in and out of the bar.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Respondent's alcoholic beverage license number 39- 2182, series 2-COP, doing business as the Paradise Inn, be suspended for a period of 6 months from the date of the final order entered herein. RECOMMENDED this 30th day of December, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, 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 30th day of December, 1983.
The Issue Whether the violations alleged in the Administrative Action, as amended, were committed? If so, should Respondent be held responsible for these violations? If so, what penalty should be imposed against Respondent?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, the holder of alcoholic beverage license number 60-00602, Series 4-COP issued by the Department. The licensed premises is Club Diamonds (Club), an adult entertainment establishment located in West Palm Beach (at 1000 North Congress Avenue) that features scantily clad female dancers.1 Patrons of the Club are served in two main areas: at the bar and at tables that are located between the bar and the stage area where the dancers perform to recorded music played by a DJ stationed in an elevated booth. On the north and west ends of the Club are partitioned areas with couches (Partitioned Areas). After receiving an anonymous complaint concerning the Club, the Department began an undercover operation at the establishment in which Special Agent John Murray and others participated. In his undercover capacity, Special Agent Murray visited the Club on three occasions during its normal business hours when there were other patrons, as well as Club employees (including dancers, at least one bartender/barmaid, a waitress, and a DJ) present. These visits were made on May 27, 1998, June 2, 1998, and June 6, 1998. On each visit, Special Agent Murray was approached by a dancer at the Club ("Faith" on May 27, "Riley" on June 2, and "Memphis" on June 6), who, after ascertaining that he was interested in a "private dance" for $20.00, escorted him to a couch in one of the Partitioned Areas on the north and west ends of the Club, sat him down on the couch, and spread his legs apart. The dancer then positioned herself between Special Agent Murray's legs and took off her top. Wearing only a thong-style bikini (G-string) bottom (which left her buttocks exposed), the dancer proceeded to perform for a fully clothed Special Agent Murray what is commonly referred to as a "lap dance." During the course of the "dance," the dancer, to the rhythm of the music, provocatively rubbed her bare breasts against Special Agent Murray's face and (while on his lap) rhythmically grinded her (covered) crotch area against his in a manner designed to simulate sexual intercourse and to sexually arouse Special Agent Murray. The "lap dance" lasted approximately the length of a song being played by the DJ over the Club's sound system. Following the conclusion of the "lap dance," Special Agent Murray paid the dancer $20.00. While at the Club, Special Agent Murray witnessed other patrons receive "lap dances" from the Club's dancers. Although the "lap dances" that Special Agent Murray and other patrons of the Club received were given in an area of the Club with "subdued" lighting (in contrast to the stage area, which was brightly lit), there was sufficient lighting for others in the Club at the time, including other employees, to observe these "lap dances," which were performed in an open and notorious manner in plain view. At no time did any employee of the Club make an effort to stop these "lap dances." Indeed, the DJ made comments to the patrons over the sound system encouraging them to purchase "private dances" from the Club's dancers. Although Respondent's officers and shareholders may not have been present on the premises during the May 27, 1998, June 2, 1998, and June 6, 1998, undercover operations, given the persistent and repeated instances of "lap dancing" engaged in by the dancers working at the Club, the inference is made that Respondent either fostered, condoned, or negligently overlooked these flagrant acts of indecency, which were patently offensive, lacked any serious artistic value and that the average person, applying contemporary community standards, would find, taken as a whole, appealed to prurient interests. On June 9, 1998, Special Agent Murray returned to the Club. On this occasion, however, he identified himself as a Special Agent for the Division. After doing so, he provided the Club's management with a written notice of the Department's intention to file administrative charges against Respondent based upon the conduct he had observed during his previous three visits to the Club. At no time prior to this June 9, 1998, visit had Special Agent Murray informed the Club's management that the Department had any concerns regarding activities taking place at the Club. Administrative charges were filed against Respondent on June 16, 1998. In September of 1998, Respondent hired a new general manager, Jorge Courts, to run the Club. Mr. Courts has taken measures reasonably calculated to prevent the reoccurrence of the inappropriate conduct that Special Agent Murray observed on his May 27, 1998, June 2, 1998, and June 6, 1998, visits to the Club.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Respondent liable for the violations alleged in the Administrative Action, as amended, and penalizing Respondent therefor by imposing an administrative fine in the amount of $1,000.00. DONE AND ORDERED this 16th day of March, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1999.
