The Issue The issues are whether Respondent committed the offenses alleged in the Administrative Action filed by Petitioner against Respondent on August 7, 2007, and, if so, the penalties, if any, that should be imposed.
Findings Of Fact At the times relevant to this proceeding Respondent, Ray’s Market, Inc., d/b/a Ray’s Market was the holder of License No. 16-1362, Series 2 APS. The license authorizes Respondent to sell packaged beer and wine at the licensed premises, which is a convenience store located at 1707 NW 6th Street, Ft. Lauderdale, Florida 33313 (the licensed premises). At the times relevant to this proceeding Ibrahim Abdul-Kahir (the owner) was the owner of the licensee and the manager of the licensed premises. On July 18, 2007, Petitioner’s undercover investigative team performed a compliance check of the licensed premises while checking other licensed locations to determine whether the various stores were selling alcoholic beverages to under-aged patrons. Petitioner’s investigative team included the IA, Agent Boykin, Agent Gayle, and Special Agent Cobban. The IA acted as Petitioner’s underage operative on July 18, 2007. The IA is a female, born November 22, 1989. As of July 18, 2007, the IA was 17 years of age. At all times relevant to this proceeding, the IA operated under the direct supervision of one or more of Petitioner’s agents. The IA was instructed by Petitioner’s agents to attempt to purchase alcoholic beverages from Respondent. She was instructed to enter the licensed premises, retrieve an alcoholic beverage from the cooler, and attempt to purchase the alcoholic beverage. The IA was instructed to answer truthfully if anyone in the store asked her age. Petitioner’s agent gave the IA funds to make the purchase. On July 18, 2007, both Mr. Gayle and Ms. Boykin entered the licensed premises before the IA entered. This procedure provided security for the IA while she was inside the licensed premises and provided corroboration for the events that ensued. Both Mr. Gayle and Ms. Boykin had unobstructed views of the IA’s activities within the licensed premises and were able to hear the conversations described below. At the times relevant to this proceeding, the licensed premises had two cash registers open. Norma Williams, an employee of the licensee, was stationed at one cash register and the owner was stationed at the other. The two cash registers were located within sufficient proximity so that the owner could communicate with Ms. Williams and could observe the events occurring at her register. After Agents Gayle and Boykin were inside the premises the IA entered the licensed premises, walked straight to the cooler, and took out a bottle of Seagram wine cooler. Seagram wine cooler is an alcoholic beverage. The IA then walked to the cash register at which Ms. Williams was stationed and handed the wine cooler to Ms. Williams. At that juncture, the owner asked Ms. Williams whether she had checked the IA’s identification to verify the IA’s age. Ms. Williams responded to the effect that she knew the IA because the IA hangs out with her (Ms. Willliams’) nieces and cousins all the time. Ms. Williams then stated that she knew that the IA was over 18 years of age. The owner responded: “Okay. We’ll let them2 bail you out.” When the owner made that statement, he knew that the IA was about to purchase an alcoholic beverage and he knew that his employee had not verified her age by checking the IA’s identification. The IA paid Ms. Williams for the wine cooler and left the licensed premises. Immediately after she left the premises, the IA dropped the wine cooler, breaking the bottle and spilling the contents on the sidewalk in front of the licensed premises. Upon instructions from Petitioner’s agent, the IA immediately re-entered the licensed premises and told the owner what had happened. The IA asked the owner if she could replace the broken wine cooler. The owner permitted the IA to do so. The IA went to the cooler, retrieved a replacement wine cooler, and left the licensed premises. Respondent’s Exhibit 3 is the replacement wine cooler. The broken wine cooler was discarded. At no time on July 18, 2007, did Ms. Williams, the owner, or anyone else acting on behalf of the licensee ask the IA her age or for identification to verify her age. After the IA obtained the replacement wine cooler and left the licensed premises, Special Agent Cobban entered the licensed premises, identified himself as a special agent, and asked to speak to the owner of the licensed premises. Mr. Abul- Kahir identified himself as the owner of the licensed premises and showed Special Agent Cobban on his store’s security system a re-play of the purchase of the wine by the IA. Mr. Abul-Kahir told Special Agent Cobban that he told Ms. Williams to check the IA’s identification. Mr. Abul-Kahir was present at the formal hearing, but he did not testify. The clear and convincing evidence presented by Petitioner established that Mr. Abul-Kahir did not tell Ms. Williams to check the IA’s identification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of one violation of Subsection 562.11(1)(a) Florida Statutes as alleged in the Administrative Action. It is further recommended that the final order impose an administrative fine against Respondent in the amount of $1,000.00 and suspend Respondent’s license for seven consecutive days. DONE AND ENTERED this 16th day of June, 2008, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 June, 2008.
Findings Of Fact The Respondent, Peek A Boo Lounge, Inc., d/b/a Peek A Boo Lounge is the holder of alcoholic beverage license No. 63-549 (Series 2-COP), at the business address of 270 East Highway 92, Lakeland, Florida. On January 29, 1982, Deborah Lynn Edwards, a dancer-entertainer, while on the licensed premises of Respondent, was in possession of and sold amphetamines to Polk County Sheriff's Department Undercover Investigator Whitis (Counts 1 and 2). On the same day, January 29, 1982, Constance M. Borque, while dancing as an entertainer on the licensed premises, exposed her pubic area to the customers and patrons then present at the Peek A Boo Lounge. This exposure of her pubic area was witnessed by Polk County Sheriff's Department Undercover Officer Whitis (Count 3). On February 2, 1982, Officer Creamer of the Polk County Sheriff's Department was in the Peek A Boo Lounge in an undercover capacity. On this evening he was approached by Isabella Marie Arnot, a dancer-entertainer. During the course of their conversation, Arnot requested that Officer Creamer purchase an alcoholic beverage for her (Count 6) On February 4, 1982, Officer Whitis was again in the licensed premises in an undercover capacity. On this evening he was approached by Connie Frances Margotta, a dancer-entertainer, and a brief conversation ensued. In the course of this conversation, Margotta suggested certain sexual activities to Whitis, but there was no offer by Margotta to exchange sexual favors for money or other property of value (Count 7). On the next evening, February 5, 1982, Officer Whitis returned to the licensed premises and was again approached by Connie Frances Margotta. She again suggested sexual activities with Whitis, without offering to exchange sexual favors for money or other property of value (Count 8). On the same day, February 5, 1982, Beverage Officer Nelson, of the Division, was in the licensed premises in an undercover capacity. While Nelson was in the licensed premises on this evening he was approached by Daneilla A. Good, a barmaid, and engaged in a conversation with her. In the course of this conversation, Good requested Nelson to purchase a drink for a dancer-entertainer (Count 12). On about February 5, 1982, Polk County Sheriff's Department Officer Walker was in the licensed premises in an undercover capacity. Walker observed Linda Leanne Marquis, entertaining the patrons by dancing in the licensed premises. She periodically removed a portion of her costume with the exception of a feather boa. At the conclusion of her dance, Marquis exposed her pubic area to the patrons by "flashing" with the boa. On February 6, 1982, Polk County Sheriff's Officer Creamer was in the licensed premises in an undercover capacity and was approached by Daneilla A. Good, a barmaid. In the course of their conversation, Good requested that Creamer purchase a drink for a dancer-entertainer seated by him (Count 15). Polk County Sheriff's Department Officer Whitis was again in the licensed premises on February 11, 1982, and engaged in conversation with Robin K. Stutzman, a dancer-entertainer. During the course of this conversation, Whitis inquired as to the availability of methaqualone, and Stutzman advised that the substance was available. She subsequently sold and delivered four methaqualone tablets to Whitis inside the licensed premises (Counts 16 and 17). Again on the evening of February 11, 1982, while on the licensed premises, Officer Whitis observed Linda Leanne Marquis, a dancer-entertainer, expose her pubic area while performing a strip tease dance. Whitis observed Marquis remove her clothing and at the conclusion of her dance, briefly expose her pubic area (Count 18). On February 11, 1982, Beverage Officer Nelson was in licensed premises in an undercover capacity. Nelson was approached by a dancer-entertainer known as "Bell" who asked him to purchase a drink for her (count 21). On February 11, 1982, Polk County Sheriff's Department Investigator Manatou was in the licensed premises in an undercover capacity. He observed Isabella Marie Arnot, a dancer-entertainer, expose her buttocks area to himself and other patrons by pulling down the back of her entertainer's costume (Count 22). On the evening of February 11, 1982, Officer Nelson was approached by Isabella Marie Arnot, and during the course of their conversation, Arnot requested Officer Nelson to purchase a drink for her (Count 23). On February 17, 1982, Beverage Officer Cahoon was in the licensed premises in an undercover capacity. He inquired of Isabella Marie Arnot, a dancer-entertainer, as to the availability of methaqualone. She advised methaqualone was available and subsequently sold and delivered three methaqualone tablets to Cahoon (Counts 24 and 25). On February 17, 1982, Polk County Sheriff's Department Undercover Officer Whitis inquired of Connie Frances Margotta, a dancer-entertainer, as to the availability of methaqualone. Margotta replied that methaqualone was available and subsequently sold and delivered one methaqualone tablet to Whitis (Counts 26 and 27). On that same evening, February 17, 1982, Polk County Sheriff's Department Undercover Officer Whitis inquired of Isabella Marie Arnot, a dancer- entertainer, as to the availability of methaqualone. Arnot replied that methaqualone was available and subsequently sold and delivered three methaqualone tablets to Whitis (Counts 30 and 30A). On February 19, 1982, Polk County Sheriff's Department Undercover Officer Walker was in the licensed premises in connection with this investigation. He engaged in conversation with a woman identified as Tammy Hobbs, and inquired as to the availability of amphetamines. Hobbs stated that such was available and subsequently sold and delivered amphetamines to Walker in the licensed premises. There was no showing of any relationship between Hobbs and the Respondent (Counts 31 and 32). On the same evening, February 19, 1982, Polk County Sheriff's Department Undercover Officer Walker was approached by Sandra Delores Moor, a dancer-entertainer. In the course of their conversation, Moor offered to perform a sexual act with Walker for $45.00 (Count 33). On the same evening, February 19, 1982, Polk County Sheriff's Department Undercover Officer Manatou was at the licensed premises. He observed Robin K. Stutzman, a dancer-entertainer, performing a strip tease dance. At the conclusion, Stutzman exposed her pubic area to patrons by removing her hands and a feather boa from in front of her pubic area (Count34). On February 24, 1982, various officials of local and state law enforcement agencies met at the licensed premises for the purpose of executing arrest warrants. In conjunction with these arrests, Petitioner's Beverage Officers conducted a licensed premises inspection. During the course of this inspection, Teresa Okerstrom Crisp, a dancer-entertainer, was found to be in possession of cannabis. The cannabis was located in Crisp's purse, which was in her locker inside the dressing area of the licensed premises. However, the search of her purse was made with neither her permission, nor a warrant or probable cause (Count 37).
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty as charged in Counts 1, 2, 6, 12, 15, 16, 17, 21, 23, 24, 25, 26, 27, 30 and 30A of the Amended Administrative Complaint/Notice to Show Cause, and suspending Respondent's alcoholic beverage license for a period of 45 days. DONE and ENTERED this 18th day of January, 1983, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 18th day of January, 1983.
The Issue Should Respondent's alcoholic beverage license, number 61-00005, 2-COP be revoked, suspended or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: DABT is the division within the Department of Business and Professional Regulation charged with the responsibility of administering and enforcing the Beverage Law of the State of Florida. At all times material to this proceeding, Respondent held a series 2- COP alcoholic beverage license, number 61-00005, authorizing the Respondent to sell only beer and wine on the premises of East Side Tavern (Tavern), located on Cummer Road, 1 mile east of Highway 301, Lacoochee, Pasco County, Florida. Around 12:30 a.m. on May 16, 1994, Special Agents Ashley Murray and Keith B. Hamilton went to the Tavern in an undercover capacity. This undercover activity was initiated due to a request of the Pasco County Sheriff's Office (PCSO) concerning allegations of drugs sales on the premises of the Tavern. Agent Murray has been a sworn law enforcement officer for five and one- half years. Agent Murray completed a two-week basic Drug Enforcement Administration (DEA) drug school regarding the identification, sale and the manner of use of drugs. Agent Murray also completed a three-day undercover DEA school. During her five and one-half years as a sworn law enforcement officer, Agent Murray has been involved in at least 100 occasions where drugs were being sold or used. Agent Hamilton has been a law enforcement officer since 1981. During Agent Hamilton's tenure as a law enforcement officer he has been involved in numerous training classes regarding the identification, sale and manner of use of drugs, including courses taught by DEA. Agent Hamilton has been trained to recognize the scent of burning marijuana. Agent Hamilton has been in at least 70 different establishments where drugs, including marijuana, were being sold and used. As the agents approached the Tavern, they noticed a large number of people (100-150) standing in front of the Tavern and in a vacant lot across the road from the Tavern. Additionally, cars were parked along Cummer Road in front of the Tavern. The agents also testified that a "lot" of the people standing outside appeared to be "young". Upon entering the Tavern, the agents noticed that no one was checking identification at the door. The Tavern consists of two rooms divided by wall with a door between the two rooms. The bar is located in one room. The second room is a disco/dance area. Based on the description of the inside of the Tavern, a person behind the bar would not have clear view of all of the disco/dance area. On May 16, 1994, the Tavern was crowded with customers. Agent Murray saw what appeared to her to be a "lot of really young kids" in the crowd. Upon entering the Tavern on May 16, 1994, Agent Hamilton detected a scent in the air that resembled, based on his training and experience, the odor of burning marijuana. Agent Hamilton did not actually see anyone smoking marijuana inside the Tavern. Agent Murray also noticed, both on the inside of the Tavern in the dance floor area and outside the Tavern by the entrance, what appeared to her to be a hand-to-hand exchange between customers of what appeared to be money for something that she could not identify. As Agent Murray left the Tavern she noticed what appeared to her, based on experience and training, to be customers passing and maybe smoking marijuana. However, Agent Murray did not actually see the marijuana or the customers actually smoking marijuana. Agent Murray also noticed a customer with a closed fist going to another customer and placing the closed fist over an open palm and then the release of the closed fist. Based on her training and experience, this appeared to Agent Murray to be an exchange of crack cocaine between the customers. Agent Murray did not see or confirm that any crack cocaine was actually being exchanged. Upon reentering the Tavern, the agents were together at the bar and saw a black female customer place a large bottle of liquid on top of the bar close to where they were sitting. The customer ordered something from the bar and left with the bottle. Agent Murray testified that by observing the label on the bottle she was able to identify the liquid as scotch whiskey. Agent Hamilton testified that he observed the same black female with a bottle of "alcohol, distilled spirits" and further identified the liquid as a "bottle of gin". Neither Agent Murray nor Agent Hamilton testified that the bottle bore the manufacturer's insignia, name or trademark. Both agents were apparently close enough to the customer to be able to observe the label. Neither agent smelled or tasted the contents of the bottle. For reasons of their own, the agents did not seize the bottle. Agent Murray thought she saw the Respondent behind the bar on that day. Agent Hamilton referred to the person behind the bar that day as the clerk but did not identify the Respondent as being the clerk on May 16, 1994. On August 8, 1994, ten DABT agents and 20 deputies from the PCSO conducted a walk-through inspection (inspection) of the Tavern. The agents and deputies were dressed in such attire as to be visibly recognized as law enforcement officers. During the inspection on August 8, 1994, DABT Sergeant Allen Ray observed an individual inside the Tavern in possession of a cup of beer, which individual Sergeant Ray suspected of being under 21 years of age. Sergeant Ray testified that this person identified herself as Tamieka Ranell Shaw and that Shaw advised him she was under 21 years of age. Sergeant Ray then took Shaw outside and placed her in the custody of Agent Hamilton for processing. Agent Hamilton testified that Shaw advised him that she was 16 years of age. At this time, Shaw did not have a driver's license or any other type of identification in her possession that would verify her age or date of birth. Furthermore, Shaw was not identified by a family member or anyone else having personal knowledge of Shaw's age or date of birth. Neither Shaw nor anyone else having personal knowledge of Shaw's age testified at the hearing. Furthermore, DABT did not present any documentary evidence of Shaw's age at the hearing. DABT failed to prove that Shaw was under 21 years of age on August 8, 1994. There was no evidence that Respondent or any person working for Respondent had sold, given, served or permitted the beer to be served to Shaw. During the August 8, 1994, inspection, DABT Sergeant John Allen observed three individuals in the Tavern that he suspected of being under 21 years of age that were in possession of what Sergeant Allen considered to be an alcoholic beverage. Sergeant Allen escorted each of these individuals out of the Tavern separately. None of these individuals had a drivers license or any other type of identification to verify their age or date of birth. Sergeant Allen testified that each of the individuals identified themselves and admitted to being under the age of 21 years. However, one of the individuals managed to leave the premises before any other identification could be made. Sergeant Allen testified that Ronald Adair, one of the alleged underage customers referred to in Finding of Fact 15 above, was identified by his mother as being under 21 years of age in a telephone conversation with Sergeant Allen on August 8, 1994. However, neither Adair, his mother nor anyone else having personal knowledge of Adair's age was present at the hearing to testify as to Adair's age. Furthermore, DABT did not present any type of documentary evidence of Adair's age at the hearing. DABT failed to prove that Adair was under 21 years of age on August 8, 1994. The person identifying himself as Marlon Inmon, another of the alleged underage customers referred to Finding of Fact 15 above, was alleged to have been in possession of an alcoholic beverage inside the Tavern on August 8, 1994. Sergeant Allen testified that he talked to a relative of Inmon's over the telephone and that this relative identified Inmon and advised Sgt. Allen that Inmon was under 21 years of age. However, this person did not talk to or see the person claiming to be Inmon. Neither Inmon nor the person identifying Inmon over the telephone or anyone else with personal knowledge of Inmon's age testified at the hearing. Furthermore, DABT did not present any documentary evidence of Inmon's age at the hearing. DABT failed to prove that Inmon was under 21 years of age on August 8, 1994. The third alleged underage person referred to in Finding of Fact 15 above in possession of an alcoholic beverage on August 8, 1994, was never identified by anyone before he left the premises. Neither this person nor anyone else having personal knowledge of this person's age testified at the hearing as to this person's age. Furthermore, DABT did not present any documentary evidence as to this person's age. DABT has failed to prove that this person was under 21 years of age on August 8, 1994. During the walk-through inspection on August 8, 1994, DABT Special Agent Michael Freese seized a 1.75 liter of Seagrams gin, alcoholic beverage. The gin was in plain view on a table in the dance floor area. In attempting to seize the gin, Agent Freese had a confrontation with a customer who claimed the gin belonged to him. There was no evidence that the gin had been purchased on the premises. This gin is not the type of alcoholic beverage allowed to be possessed by the licensee or anyone else on the licensed premises of a licensee holding only a 2-COP alcoholic beverage license such as Respondent. The Respondent was present at the Tavern on August 8, 1994, and either directly observed, or was in such a position at the bar to have easily detected the presence of the unauthorized alcoholic beverage on the table. Also during the walk-through inspection on August 8, 1994, Agent Freese observed a small plastic bag containing a substance that resembled marijuana on the floor behind one of the speakers around the "DJ" booth. Agent Freese seized the bag and identified it as marijuana by sight and smell. A field test conducted by Agent Freese indicated that the substance was marijuana. However, Agent Freese testified that the field test may not be 100 percent accurate. No laboratory analysis was made of the substance suspected of being marijuana. DABT failed to prove that the substance was in fact marijuana. Likewise, DABT has failed to prove that Stewart was aware of alleged marijuana being present on the premises. During the walk-through inspection on August 8, 1994, Lieutenant Bruce Schmelter, PCSO, seized a loaded 22-caliber revolver that was protruding from beneath one of the speakers near the "DJ" booth. The revolver was turned over to DABT. However, DABT failed to prove that Stewart was aware of the revolver being present on the premises. After the walk-through inspection on August 8, 1994, Sergeant Allen gave Respondent official notice of the problems encountered during the inspection. On September 18, 1994, a second walk-through inspection (second inspection) was conducted at the Tavern by ten DABT agents and 25 PCSO deputies. The DABT agents and the deputies from the PCSO were dressed in such attire as to be visibly recognized as law enforcement officers. During the second inspection, agents Murray and Aikens advised Respondent that they intended to go behind the bar to secure that area. After advising Stewart of their intended action, there was a confrontation between Stewart and the agents wherein Stewart's daughter became involved. The agents became concerned because of the crowd and notified Sergeant Ray of the problem. Sergeant Ray advised Stewart of why they were there and that DABT agents had the authority to secure the area behind the bar. After this explanation, Respondent allowed Sergeant Ray and another DABT agent behind the bar without further incident. After the incident at the bar during the second inspection, Agents Murray and Aikens seized a bottle of Seagrams Extra Dry Gin, an alcoholic beverage, which they found on the floor against the wall in the area of the bar inside the Tavern. This gin is not the type of alcoholic beverage allowed to be possessed by the licensee or anyone else on or at the licensed premises of a licensee holding a 2-COP alcoholic beverage license such as Respondent. The Respondent was present in the Tavern on September 18, 1994, and either directly observed, or was in such a position as to have easily detected the presence of the unauthorized alcoholic beverage. During the second inspection, Agent Hamilton observed an individual in possession of a bottle of beer which individual he suspected of being under 21 years of age. Agent Hamilton testified that the individual was identified as Corey Anthony Owens, 20 years of age. Neither Owens nor anyone else having personal knowledge of Owens' age were present to testify at the hearing. Furthermore, DABT did not present any documentary evidence as to Owens' age. Agent Hamilton testified that Owens advised him that he had purchased the beer in the Tavern from a black male behind the bar. DABT presented no other evidence that the beer had been purchased in the Tavern. Although DABT has proven that Owens did have beer in his possession while in the Tavern on September 18, 1994, DABT failed to prove that Owens purchased or was served or given the beer in his possession on September 18, 1994, by Stewart or his servant, agent or employee. Furthermore, DABT failed to prove that Owens was under 21 years of age on September 18, 1994. On December 7, 1994, Captain Bruce Ashley met with Stewart at Stewart's request to discuss the Administrative Action that had been served on Stewart. At Stewart's request, Captain Ashley marked an X by the first box on the Request For Hearing which states as follows: "I dispute issues of fact. (Please list which of the charges and counts in the Administrative Action you dispute and why)." Also at Stewart's request, Captain Ashley wrote the following: "There are facts and issues that are not true that need to be discussed. I have documents and facts to bring out about this matter." (Emphasis supplied) Below this statement Captain Ashley wrote "Written On Behalf Of Licensee By" and signed his name. Below the above underlined statement there was an X with Isaiah Stewart's signature. On December 8, 1994, Captain Ashley wrote a memorandum setting forth what Captain Ashley considered to be the conversation between he and Stewart on December 7, 1994. However, because of the circumstances under which this conversation with Respondent occurred and the conflict between the statement signed by Respondent and Captain Ashley's memorandum, the memorandum is somewhat suspect and a cause for concern, and thereby lacks credibility. DABT's exhibit 4 consist of computer records from the PCSO listing the calls that the PCSO responded to around the Tavern from May 12, 1993 through June 29, 1994. Using these computer records DABT summarized the type of calls and the total number of each type of call received between February, 1994 and June 29, 1994. This summary shows a total of 69 calls of various types responded to by the PCSO during the period covered by the summary. Of the 69 calls listed in the summary, 22 were calls to backup units which apparently were backup for some of the other 47 calls. Ten calls were to assist a sick person. The balance of the calls were as follows: 2-affray/incite or encourage riot; 1- special patrol request; 1-juvenile problem; 3-miscellaneous incident; 2-field interrogation report; 4-shooting in area; 1-battery (simple); 4- disturbance(noise); 1-accident traffic; 1-illegal parking; 1-suspicious person; 3-narcotics violation; 1-throwing a deadly missile; 1-obstructing police without violence; 1-warrant arrest; 1-robbery, strong arm; 1-simple assault; 2-traffic warning; 1-aggravated assault; 1-weapons; 1-shooting into occupied dwelling; 1- battery on officer and 2-special detail. It is clear from the PCSO computer printout that the whole area around Cummer Road, not just the area around the Tavern, kept the PCSO busy responding to calls during the period in question. DABT presented no evidence as to the legitimacy of the call or if the call involved the activity of the Tavern's customers on the premises of the Tavern or the activity of someone else in the vicinity of the Tavern or what action was required upon the PCSO responding to the call. DABT failed to prove that Respondent kept or maintained a premises which was resorted to by persons who use or sell illegal drugs. DABT failed to prove that between the dates of February 1994, and September 1994, the Respondent maintained a public nuisance at his licensed premises.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law and having reviewed the penalty guidelines set forth in Rule 61A-2.022, Florida Administrative Code, it is recommended that a final order be entered finding Respondent guilty of the allegations contained in Counts 5 and 8 of the Administrative Action and for this violation that DABT assess an administrative fine in the amount of $1,000 against Respondent. It is further recommended that DABT dismiss Counts 1, 2, 3, 4, 6, 7, 9, 10 and 11 of the Administrative Action. RECOMMENDED this day 27th of September, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1482 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner in this case. Petitioner's Proposed Findings of Fact. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1-3(2); 4-5(3); 6(6); 7(7); 8(8); 9(9); 10(5); 11(10); 12(4,10-11); 13(11); 14(12); 15(13); 17-18(15); 21-22(19); 24-25(21); 26(22); 27(23); 28-29(24); 30(25); 32(27); and 34(28). Proposed finding of fact 16 is adopted in Finding of Fact 14, except that portion regarding the age of Shaw, which is rejected. Proposed finding of fact 19 is adopted in Finding of Fact 16, except that portion regarding the age of Adair, which is rejected. Proposed finding of fact 20 is adopted in Finding of Fact 17, except that portion regarding the age of Inmon, which is rejected. Proposed finding of Fact 23 is adopted in Finding of Fact 19, except that the field test did not absolutely prove that the substance was in fact marijuana. Proposed finding of fact 31 is adopted in Finding of Fact 26, except that portion regarding the age of Owens and that Owens purchased the beer in the Tavern, which is rejected. Proposed finding of fact 33 is rejected as not being supported by competent, substantial evidence in the record. The Respondent elected not file any proposed findings of fact. COPIES FURNISHED: John J. Harris, Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda L. Goodgame, Esquire General Counsel Department of Business Professional Regulations Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard A. Grumberg, Esquire Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Isaiah Stewart, Pro se Post Office Box 429 Lacoochie Florida 33537
The Issue The primary issue in this disciplinary proceeding is whether Respondent, which operates a convenience store and sells alcoholic beverages on the premises under a license issued by Petitioner, permitted a sale of drug paraphernalia to occur in the store, in violation of the statutes governing holders of beverage licenses. If Petitioner proves the alleged violation, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact At all relevant times, Respondent Moti's, Inc., d/b/a Continental Market ("Continental"), has held a license to sell alcoholic beverages at retail. Consequently, Continental is subject to the regulatory and disciplinary jurisdiction of Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (the "Division"). On December 12, 2006, two undercover agents of the Division, together with a detective from the Broward County Sheriff's Office, conducted a "sting" operation at the convenience store that Continental owns. The sting was arranged in response to complaints that the Sheriff's Office had received regarding sales of drug paraphernalia (specifically "crack pipes" used for smoking crack cocaine), which were allegedly taking place at this store. The purpose of the sting was to purchase a "crack pipe" and arrest anyone involved in the sale. Pursuant to the plan, Special Agent Ralius Thompson entered the store in an undercover capacity. He was wearing a "wire" (concealed microphone) and a hidden camera. These devices, which were monitored by the other agent and the detective (both of whom remained outside the store), allowed the ensuing transaction to be recorded on a videotape. Once inside, Thompson headed first to the cooler, where he took a six-pack of beer from the shelf. He then proceeded to the counter, to purchase the beer. As the clerk, Aziar Baig, was ringing up the sale, Thompson whispered, "Got any pipes? Got any pipes?"i Baig reached down behind the counter and pulled up a "love rose." (A love rose is a trinket, a tiny fake flower encased in a thin glass tube, which latter is about 4 inches long. Though the tube containing a love rose can be used as a pipe, love roses are not necessarily drug paraphernalia; they can be legally sold, purchased, and possessed.) "You're talking about here?" Baig asked, displaying a love rose. "Yeah, smoke my crack in, man, smoke my crack in," replied Thompson. "A pipe——got a stem?" "Huh?" said Baig. "A stem," repeated Thompson. (According to the evidence, the term "stem" is street talk for filter. Filter material is inserted in one end of the pipe to prevent the user from inhaling the burning cocaine "rock.") "This one?" Baig inquired, holding up a Chore Boy® copper scrubber. (Chore Boy® scrubbers are clearly legal merchandise having an obvious, non-nefarious purpose. According to the evidence, however, the metal in these pot scrubbers can be used illicitly as a crack pipe filter.) "Yeah," said Thompson, who then paid $6.75 for the items. Shortly after making this sale, Baig was arrested on the charge of delivering drug paraphernalia, which is a third- degree felony under Section 893.147(2), Florida Statutes. The evidence presented in this case is sufficient, for present purposes, to support the inference——which the undersigned draws——that Baig either knew or reasonably should have known that his customer (Thompson) intended to use the love rose and copper scrubber to fashion a makeshift crack pipe.ii Thus, it is determined, as a matter of ultimate fact, that Baig committed the crime of delivering drug paraphernalia. There is, on the other hand, no persuasive evidence (or any evidence of any quality, for that matter) establishing that the corporate licensee (as opposed to its employee Baig) committed any misconduct, e.g. negligent failure to train or supervise employees; failure to exercise due diligence in attempting to prevent unlawful sales; or fostering or condoning such sales, for which the Division could impose discipline against Continental pursuant to Section 561.29(1), Florida Statutes. It is determined, therefore, as a matter of ultimate fact, that Continental is not guilty of the pending charge, namely permitting the sale of drug paraphernalia on the licensed premises.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order finding Continental not guilty of the instant charge. DONE AND ENTERED this 17th day of October, 2007, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2007.
The Issue The issue for consideration in this hearing is whether Respondent's license as a real estate broker in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Division of Real Estate (Division), for the Florida Real Estate Commission, was the state agency responsible for the licensing of real estate professionals and the regulation of the real estate profession in Florida. Respondent was licensed as a real estate salesperson or broker in Florida. During pertinent portions of 1990, Respondent was licensed both as a real estate broker by the Division, and as a contractor by the Construction Industry Licensing Board of the State of Florida. During that period he handled numerous sales of real property for the United States Veterans Administration and received deposits of funds on those sales which he placed in his brokerage trust account with First Commercial Bank of Manatee County. At that time, the bank had a policy on availability of funds of seven business days for out-of- town checks and three business days for local checks. In January 1990, Respondent wrote five checks from his trust account, each in excess of $1,000.00. Three of these were to the VA for sales deposits, and two were to others. All five checks were dishonored for insufficient funds. Thereafter, on August 24, 1990, the Division filed an Administrative Complaint against the Respondent alleging the utterance of dishonored checks as misconduct. Respondent, at an informal hearing, admitted the utterance of the dishonored checks, and as a result, the Florida Real Estate Commission revoked his broker's license on October 16, 1990. Respondent's subsequent appeal of that action to the Second District Court of Appeal resulted in a per curiam denial of his petition for review. Sometime later, in 1991, Respondent appealed to the Commission for reinstatement. At a subsequent hearing before the Commission, an exculpatory letter of explanation from Respondent's accountant resulted in the Commission allowing Respondent to sit for the salesman's examination, as a result of which he was subsequently licensed as a salesman. Respondent was thereafter again licensed as a broker on December 6, 1993. In the interim, however, on June 4, 1992, Respondent's contractor's license was disciplined by the Construction Industry Licensing Board for misconduct involving his failure to properly supervise a construction project and allowing an unlicensed individual to do the work on a project for which he had pulled the permit. An informal hearing was held by the Board as a result of which it imposed an administrative fine of $2,000.00, and to assure the payment thereof, provided for suspension of Respondent's license if the fine was not paid within thirty days. Respondent admits he did not pay the fine. He contends he called the Board office to inquire what would happen were he not to pay the fine and was advised his license would be suspended. Since Respondent intended to cease working as a contractor anyway, he elected not to pay the fine and sent his license in to the Board. Respondent's contractor's license was suspended on July 22, 1992, though he claims he did not receive a copy of either the Board's Final Order or the notice of the suspension going into effect. Respondent had an obligation to pay the fine imposed as punishment for past misconduct. Voluntary relinquishment of his license, which he thought he could do without effect on him since he was getting out of the construction business, did not excuse his non-payment of the fine. On October 21, 1993, after Respondent's salesman's license had been reinstated, he applied for licensure as a broker, In his answer to the first part of question 13 on the application form, Respondent indicated he had had a license suspended. He noted thereon the prior case against his license by the Commission which dealt with the dishonored checks. He did not, however, list the action taken against his contractor's license. He listed the prior real estate case, he contends, upon the advice of someone in the Division office. He did not, at the time of his call to the Division indicate or inquire about the action taken by the Board on his contractor's license. He claims he did not list that action on the application form because the action taken by the Board was not based on fraud or dishonesty but merely a failure to supervise, and because he did not know his license had been suspended. He thought that voluntarily relinquishing his license ended the situation. Respondent claims he did not intend to conceal any misconduct or adverse action as he could not do so. It was a matter of public record, and he believed the information available to one regulatory board was available to all others that were under the Department. At some point thereafter, not further established, a complaint was filed with the Commission which resulted in the matter being referred to Mr. Pence for investigation. Mr. Pence assembled the documents relating to the allegation of concealment and sent a written notice of his inquiry to the Respondent. Upon receipt of that notice, Respondent telephoned Mr. Pence to discuss the matter. During the ensuing conversation, Pence asked Respondent if he was aware of his suspension by the Construction Board and claims Respondent indicated he was. Respondent allegedly indicated he was under the impression he had been fined by the Board and that the suspension was only to insure the fine was paid. Respondent further indicated that because of the depressed economy and because he was not much interested in keeping his contractor's license he had let it go. In evaluating the evidence presented, it must be noted that the interview between Pence and the Respondent took place about a year ago. Pence's investigative notes are no longer available and he testified from memory. It was evident that much of Mr. Pence's testimony was a reconstruction of how Mr. Pence, in retrospect, felt he would have handled the interview and what he feels sure he would have asked. Taken together, the evidence of record establishes that Respondent was disciplined by the Real Estate Commission for dishonored checks and his license revoked. Though, on the basis of his accountant's exculpatory letter, Respondent was allowed to be re-examined for a salesman's license, that evidence did not completely exonerate the Respondent. This is shown by the fact that the revocation of his broker's license was not reversed. He was merely allowed to reapply for licensure as a salesman. In addition, the accountant's letter does not explain or justify all the bad checks. In regard to the Construction Board's discipline, the evidence shows that Respondent pulled a permit and then allowed a non-licensed individual to do most of the work without proper supervision. Respondent contends that complaint was filed by his friend, the owner of the property, after the project in question was determined to be far more extensive than had been anticipated. The complaint, Respondent asserts, was not made because of any dissatisfaction arising out of his performance, but merely to preserve the owner's interest as to a possible insurance claim. That argument is not persuasive. The fact is that Respondent was disciplined because he had committed an act which authorized the imposition of discipline. His approach to the situation was cavalier, and that approach or attitude continues to raise a substantial question as to his fitness to have entrusted to him the money, property, transactions and rights of others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT the Florida Real Estate Commission enter a Final Order finding Respondent, Warren Up. Box, guilty of Misrepresentation and concealment in his application for a license as a real estate broker in Florida, and of having been twice guilty of misconduct which warrants suspension, and revoking his license as a real estate broker in this state. RECOMMENDED this 9th day of October, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1996. COPIES FURNISHED: Christine M. Ryall, Esquire Department of Business and Professional regulation Division of real Estate Post Office Box 1900 400 West Robinson Street, N-308 Orlando, Florida 32802-1900 Terrence Matthews, Esquire 5190 26th Street West Bradenton, Florida 34207 Lynda Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Division of Real Estate Post Office Box 1900 400 West Robinson Street Orlando, Florida 32802-1900
Findings Of Fact During the period January 26, 1994, to September 28, 1994, in Broward County, Florida, Respondent performed the services of a private investigator without a valid Class "C" Private Investigator License. 1/ Petitioner is the agency of the State of Florida responsible for the licensure of persons providing private investigative, private security, and private repossession services in Florida pursuant to Chapter 493, Florida Statutes. Respondent first applied to Petitioner for licensure as a private investigator on October 4, 1994. At no time prior to that application was the Respondent licensed as a private investigator by the Petitioner. At all times pertinent to this proceeding, Respondent was employed by American Recovery Specialist of Fort Lauderdale, Florida (American Recovery). On January 1994, American Recovery was employed by Riverside National Bank (Riverside) to locate Ms. Chaan S. Capps and her 1993 Nissan Maxima that she had financed through Riverside. Respondent performed investigative services pertaining to this account with Riverside in January and February 1994. Matthew Ross is the boyfriend of Ms. Capps. Mike Levine and Matthew Ross are friends. On January 26, 1994, Respondent called Mike Levine pertaining to this investigation. During this telephone conversation, Respondent identified himself to Mr. Levine as a detective from the Metro-Dade Police Department and asked him questions about Ms. Capps. Frances Ross is the mother of Matthew Ross. On February 9, 1994, Matthew Ross found one of the Respondent's business cards in the gate of his mother's residence. The business card contained Respondent's name, the name of his employer, and his telephone number. The card also contained the handwritten notation "call ASAP." Mr. Ross called from his mother's house the telephone number listed on the business card and he spoke with the Respondent. Respondent told Mr. Ross during this telephone conversation on February 9, 1995, that he was an investigator with the Metro-Dade Police investigating the Chaan Capps case. The conversation between Respondent and Mr. Ross terminated when Mr. Ross became upset, handed the telephone to his mother, and walked out of the house. Respondent thereafter told Frances Ross that Ms. Capps was wanted by Metro-Dade Police and that he was investigating the case for Metro-Dade Police.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein and imposes administrative fines against the Respondent as follows: An administrative fine in the amount of $100 for the violation of Section 493.6118(1)(g), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint. An administrative fine in the amount of $500 for the violation of Section 493.6118(1)(i), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. An administrative fine in the amount of $500 for the violation of Section 493.6118(1)(i), Florida Statutes, as alleged in Count III of the Amended Administrative Complaint. DONE AND ENTERED this 14th day of November, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 14th day of November, 1995.
