The Issue This case concerns an Administrative Complaint filed by the Petitioner against the Respondent. Count I to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its director, stockholder or corporate officer, namely: Carl Bilotti, related to the possession, sale and/or delivery of the controlled substance cocaine on July 15 and 18, 1981; August 20, 1981; and September 9 and 20, 1981. Count II to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee namely: "Anne," related to the possession of the controlled substance cocaine on August 22 and 28, 1981. Count III to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Anne," related to the possession, sale and/or delivery of the controlled substance cocaine on August 23, 1981, and September 4, 1981. Count IV to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Sandy," related to the possession, sale and/or delivery of the controlled substance methaqualone on July 19 and 25, 1981, and the possession, sale and/or delivery of the controlled substance cocaine on August 14, 22 and 23, 1981. Count V to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Eve," related to the possession, sale and/or delivery of the controlled substance diazepam on July 23, 1981. Count VI to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Gina," related to the possession, sale and/or delivery of the controlled substance diazepam on July 25, 1981, two (2) incidents. Count VII to the Administrative Complaint accuses the Respondent of violations of Sections893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Ivy " related to the possession, sale and/or delivery of the controlled substance cocaine on August 14, 1981. Count VIII to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Shayne," related to the possession, sale and/or delivery of the controlled substance cocaine on July 25, 1981. Count IX to the Administrative Complaint alleges that between July 15, 1981, and October 2, 1981, the Respondent, by actions of its agents, servants, employees, manager, corporate officer and stockholder, maintained a place, to wit: the licensed premises, at 2095 best Fourth Avenue, Hialeah, Florida, which place was used for keeping or selling of controlled substances, namely: cocaine, methaqualone and diazepam, in violation of Subsection 893.13(2)(a) 5; Florida Statutes, within the meaning of Subsection 561.29(1)(c), Florida Statutes. Count X to the Administrative Complaint alleges that between July 15, 1981, and October 2, 1981, the Respondent, through its agents, servants, employees, manager, corporate officer and stockholder, kept or maintained a public nuisance on the licensed premises, to wit: maintaining a building or place which is used for the illegal keeping, selling or delivering of controlled substances within the meaning of Chapter 893, Florida Statutes, in violation of Section 823.10, Florida Statutes, and Subsection 561.29(1)(c) , Florida Statutes. Count XI to the Administrative Complaint alleges that on or about July 25, 1981, an agent, servant or employee of the Respondent, one Gina, while engaged as a dancer, unlawfully offered to commit prostitution, in violation of Subsection 796.07(3)(a), Florida Statutes, causing a violation on the part of the Respondent of Subsection 561.29(1)(a), Florida .Statutes. Count XII to the Administrative Complaint alleges that on or about October 2, 1981, an agent, servant or employee of the Respondent, namely: Cathryne Edmondson, possessed a controlled substance, to wit: marijuana, on the licensed premises, in violation of Subsection 893.13(1)(a) Florida Statutes, causing a violation of Subsection 561.29 (1)(a) , Florida Statutes. Count XIII to the Administrative Complaint alleges that on or about December 2, 1981, a director, stockholder or corporate officer, namely: Carl Bilotti, corporate vice-president and 50 percent stockholder, pled guilty and was adjudicated guilty in the Circuit Court of the State of Florida, Eleventh Judicial Circuit, on five (5) counts of violation of Section 893.13, Florida Statutes, sale of controlled substances, namely: cocaine, a felony, and that the felony conviction impairs qualifications of the Respondent to obtain and continue holding an alcoholic beverage license under Subsection 561.15(3), Florida Statutes, and Subsection 56l.29(1)(b), Florida Statutes.
Findings Of Fact The Petitioner had served an Administrative Complaint on the Respondent, which Administrative Complaint contained the Counts as set forth in the Issues statement to this Recommended Order. Subsequent to that time, the Respondent, in the person of counsel, requested a formal Subsection 120.57 (1), Florida Statutes, hearing and the formal hearing was conducted on January 6, 1982. As indicated by correspondence from former counsel for the Respondent to counsel for the Petitioner dated December 15, 1901, Respondent's counsel withdrew from the case. This withdrawal of counsel postdated a Notice of Hearing setting forth January 6, 1982, as the date for hearing and a separate Order of November 24, 1981, which identified January 6, 1982, a the date for hearing. Notwithstanding the Notice and separate Order identifying January 6, 1982, as the hearing date, the Respondent, by and through its attorney or other authorized representative, did not attend the formal hearing. Although the Respondent was not in attendance, the hearing was conducted in view of the continuing request for hearing, which has never been withdrawn. The Petitioner is a governmental agency in the State of Florida, which has, among other duties, the licensure of the several alcoholic beverage license holders in the State of Florida, and the requirement to discipline those beverage license holders who have violated the terms and conditions of their licensure. The Respondent Carl and Mike, Inc., is the holder of an alcoholic beverage license issued by the Petitioner. The Respondent trades as the Raw Hide Bar at a licensed premises at 2095 West Fourth Avenue, Hialeah, Dade County, Florida. On July 15, 1981, at approximately 9:45 P.M., Beverage Officer L. J. Terminello, and a confidential informant, who was assisting Officer Terminello, entered the licensed premises in undercover capacities to continue an investigation which had begun on July 12, 1981. (The Beverage Officer and confidential informant had been in the licensed premises on that former date for purposes of conducting a narcotics investigation.) On this occasion, the investigative purpose was to purchase narcotics. Terminello and the informant took a seat at the bar and waited for the appearance of Carl N. Bilotti, the vice-president of the Respondent and 50 shareholder. It was the intention of Terminello to attempt to purchase narcotics from Bilotti. At 10:50 P.M. Bilotti had not arrived at the licensed premises and Terminello decided to leave; however, when he reached the front door, Bilotti was entering and Bilotti spoke to the confidential informant in the parking lot area of the licensed premises. The confidential informant, in the course of that conversation, asked Bilotti if, "we could get any coke," meaning Terminello and the confidential informant were interested in purchasing cocaine. Bilotti responded by stating, "Sure, no problem. Wait here a minute, I'll be right back." Bilotti then entered the licensed premises and returned a few minutes later and handed the confidential informant a piece of aluminum foil which was folded and the confidential informant handed this item to Terminello. Terminello opened the package and noted a quantity of white powder. Terminello asked Bilotti, "how much" and Bilotti stated, "anything close to $70.00." Terminello paid Bilotti $70.00 in United States currency and following a short conversation, departed the area of the licensed premises. The white powder in question was in fact cocaine. Terminello and the confidential informant returned to the licensed premises on July 18, 1981, at approximately 12:15 A.M. Terminello approached Carl Bilotti who was standing at the end of the bar area next to a cash register. Terminello asked Bilotti if he had any "stuff," referring to cocaine. Bilotti answered "sure" and indicated that the cost for the cocaine would be $70.00. Terminello agreed to the price, telling Bilotti that he would meet him in the mens room for purposes of the exchange of drugs and money. At approximately 12:20 A.M., while located in the mens rest room of the licensed premises, Terminello paid Bilotti $70.00 in United States currency and Bilotti gave Terminello a folded piece of white paper which Terminello could see contained white powder. Shortly thereafter, Terminello and the confidential informant exited the licensed premises. The white powder which had been purchased was analyzed and revealed the presence of cocaine. On July 19, 1981, at around 11:00 P.M., Officer Terminello returned to the licensed premises. While in the licensed premises he spoke with Sandra McQuire, a person that he had met on July 12, 1981. On July 12, 1981, McQuire had been employed as a cocktail waitress on the licensed premises and Terminello had been advised by the confidential informant that McQuire had delivered ten (10) methaqualone tablets to the confidential informant on that date. On that date, July 19, 1981, Terminello told employee McQuire that he wanted to purchase ten (10) more "ludes, meaning methaqualone. At around 11:20 P.M., while Terminello was sitting at the bar, McQuire walked by and handed him a napkin containing ten (10) white tablets. A few minutes later, Terminello handed McQuire $30.00 in U.S. currency in payment for the white tablets. Terminello then left the licensed premises at approximately 11:40 P.M. The ten (10) tablets were subsequently analyzed and found to be methaqualone. On July 23, 1981, at approximately 12:30 A.M., Officer Terminello and the confidential informant entered the licensed premises. Terminello and the confidential informant took a seat at the bar, where shortly afterwards a conversation ensued with an employee/dancer who identified herself as "Eve" and was later determined to be one Eve Mary Carroll. Carroll and the confidential informant had been acquainted prior to this time. During the course of the conversation, Terminello asked Carroll if she knew where he could get some "good ludes." This refers again to methaqualone. Carroll told him that she was "holding," meaning that she had some in her possession. She asked Terminello to pay her $4.00 for each tablet. She stated that the price was higher because they were "pure methaqualone tablets" and that they would "really do a job." Terminello told Carroll that he would purchase three (3) tablets and handed her $12.00 in U.S. currency. A few moments beyond this time, at around 12:45 A.M., Carroll handed Terminello three (3) tablets, each individually wrapped in aluminum foil, which tablets Terminello placed in his pocket. The suspect methaqualone tablets were later determined to be diazepam. On the same date, July 23, 1981, Terminello observed Carl Bilotti enter the licensed premises at around 1:00 A.M. In the course of a conversation that ensued, Bilotti told Terminello he could sell Terminello some cocaine, but that the transaction would have to occur later, in that Bilotti had to leave the licensed premises. Terminello waited until 2:30 A.M. and Bilotti never returned. On July 25, 1981, at approximately 12:00 A.M., Terminello and the confidential informant went back to the licensed premises. Over the next hour and a half, Terminello talked to Carl Bilotti and employee Sandra McQuire about purchasing narcotics; however, neither of those persons were able to deliver narcotics at that time. On that same date, Terminello and the confidential informant did speak with a dancer/employee in the licensed premises who was identified as "Gina" and this individual indicated that she had some "ludes" for sale, meaning methaqualone, that she would sell for $3.00 each. Terminello indicated that he would like to purchase five (5) tablets and they walked out the front door of the premises and Terminello gave her $15.00 in U.S. currency, in return for five (5) white tablets which were marked "Lemon 714." Those tablets were subsequently analyzed and found to be diazepam. At around 2:45 A.M. on July 25, 1981, while in the bar area, Terminello and the confidential informant spoke to an individual, a male, who was known as "Frenchie" later identified to be one Laurent E. Duval, who was in the company of a dancer employed in the licensed premises whose name was "Shayne" later identified to be Sharon K. Hicks. In the presence of Hicks, Terminello and Duval negotiated for the sale of a quantity of cocaine for the amount of $75.00. Duval also indicated that he had to be careful because he had a stolen car, was carrying a firearm and had recently been placed on probation by Circuit Court for narcotics and firearms charges. Duval told Terminello that the narcotics arrangement would have to be consummated in the parking lot of the licensed premises in view of the fact that too many people he did not know were in the bar. Terminello and the confidential informant exited the licensed premises at around 3:00 A.M. in the company of Duval and Hicks. Duval took a seat on the driver's side of an automobile in the parking lot and Hicks sat in the front passenger side seat. Duval handed Terminello a large plastic bag. containing a quantity of white powder which was suspect cocaine. Terminello started to hand Duval $75.00 in U.S. currency but Duval refused to take it, telling Terminello to hand the money to Hicks. Hicks had been observing this transaction and agreed to take the money and did accept the $75.00 in U.S. currency. The suspected cocaine was later revealed to be cocaine. Terminello next returned to the licensed premises on July 25, 1981, at around 9:30 P.M. At that time he was in the presence of the confidential informant. Terminello and the confidential informant took a seat at the bar and were approached by a dancer/employee who had earlier been identified as "Gina." There had been a prior telephone negotiation between the confidential informant and "Gina" for the purchase of five (5) "ludes," methaqualone, and in keeping with that arrangement, "Gina" handed Terminello a white napkin which contained five (5) white tablets. Terminello in turn gave "Gina" $15.00 in U.S. currency. Those tablets were subsequently analyzed and found to be diazepam. On the same evening, i.e., July 25, 1981, at around 9:45 P.M., the cocktail waitress, Sandra McQuire, approached Terminello and stated that she had five (5) methaqualone tablets that Terminello had asked for on the prior evening. She handed him a zip-lock plastic bag containing five (5) white tablets marked "Lemon 714." Shortly after this time, Terminello gave McQuire $15.00 in U.S. currency to pay for the tablets. Those tablets were subsequently analyzed and found to be methaqualone. At around 10:15 P.M. on July 25, 1981, the dancer/ employee "Gina" approached Terminello while he was seated at the bar and advised him that if he "got rid of" his "old lady" and returned about 4:00 A.M. to the premises that she, "Gina," would show him a good time by "fucking his brain out" for $50.00. Terminello acknowledged this offer. On August 3, 1981, at approximately 10:30 P.M., Terminello and the confidential informant returned to the licensed premises. At that time, Terminello entered into a conversation with Carl Bilotti on the subject of narcotics; however, Bilotti indicated that he was unable to procure cocaine at that time. Bilotti did state that he expected a delivery soon and that Terminello should wait a while. Nothing had transpired by 11:45 P.M. concerning the narcotics and Terminello and the confidential informant left the licensed premises. On August 14, 1981, at approximately 10:45 P.M., Terminello and the confidential informant went back to the licensed premises and upon entry took a seat at the bar where they were greeted by the cocktail waitress Sandra McQuire. Terminello asked McQuire if there were any "ludes" around, meaning methaqualone, and McQuire answered in the negative, but she did indicate that there was some "toot," meaning cocaine available for $70.00 a gram if Terminello was interested. Terminello advised McQuire that he was interested and removed $70.. 00 in U.S. currency from his wallet, wrapped it in a napkin and handed it to McQuire. She then stated that she would be back in a few moments. After several moments, McQuire signaled Terminello to walk over to the opposite side of the bar where she was fixing drinks. She then made a comment about the good quality of the "stuff." While Terminello was talking to McQuire, another employee, a dancer in the licensed premises identified as "Ivy" later shown to be one Julie Ann Schwartz, approached Terminello and handed him a plastic zip- lock bag containing white powder. She told Terminello "here is a present from Sandy." Terminello accepted the material. Schwartz then asked Terminello if she could "do a line," referring to the ingestion of cocaine. In view of the circumstances, Terminello did allow Schwartz to taste the cocaine. Schwartz did this by opening the packet in plain view at the bar area and placing her finger into the container and then tasting the substance that adhered to her finger. She then handed the plastic bag back to Terminello and said "you are going to enjoy this. That's good stuff." These matters transpired in the presence of McQuire. The white powder was subsequently analyzed and revealed to be cocaine. On August 22, 1981, at approximately 11:00 P.M., Terminello returned to the licensed premises. Upon entry to the licensed premises, Terminello was greeted by Carl Bilotti who appeared to be leaving the bar at that time. Bilotti told Terminello he could be back in about one hour if Terminello wanted to wait for purposes of purchasing cocaine. Terminello told him he would wait. Following his conversation with Bilotti, Terminello spoke with the cocktail waitress Sandra McQuire asking her if there was any "toot" around, meaning cocaine. McQuire indicated that there was and it would cost $70.00. Terminello followed McQuire into the hallway outside the ladies' room where he handed her a hundred dollar bill and she handed him a plastic wrapped package containing white powder. A few minutes later, Terminello was sitting at the bar when McQuire returned and laid $30.00 in U.S. currency before Terminello stating "thank you very much." This material in the plastic bag which had been provided to Terminello by McQuire was subsequently determined to be cocaine. Terminello was still in the bar area at around 12:30 A.M. on August 23, 1981, and entered into a conversation with the manager of the licensed premises identified a "Anne" later shown to be Anne R. Milotta, also known as Ann Bilotti, the sister of Carl Bilotti. Terminello told Milotta that he felt that her brother Carl Bilotti was inconsiderate in that Terminello had planned to purchase cocaine from Bilotti that night and Bilotti had not come back to the premises. Milotta agreed with Terminello and told him that he could sit in the manager's office with her to have a drink and to wait for her brother to return. Milotta and Terminello went to the manager's office. While in that office, ,Milotta answered the telephone, gave directions to employees, answered questions, was observed to have the keys to the office, and at times was seen tending bar. These managerial activities were further substantiated on a later date based upon Terminello's procurement of a copy of an application which Milotta had made with the City of Hialeah, Florida, for an identification card in which she had listed herself as the "owner-manager of the licensed premises." While in the office with Milotta, she told Terminello that it was too bad that her brother had not yet come back so that Terminello could purchase cocaine. Terminello, during this conversation, indicated to Milotta that he had purchased cocaine from Sandy McQuire, the cocktail waitress, and Milotta stated to Terminello "how 'bout turning me on to a line" and Terminello responded "OK." Terminello removed the cocaine he had received from McQuire and handed it to Milotta. She opened it and tapped out two one and one half inch long "lines" of cocaine on the desk in the office and handed the package back to Terminello. Terminello then watched Milotta ingest one of the lines through her nose using a plastic straw and he in turn simulated that activity. At around 1:15 A.M., on August 23, 1981, Terminello indicated to Milotta that, in view of the fact that Carl Bilotti was not going to appear, he would like to purchase another gram of cocaine to keep him supplied for the upcoming week. Milotta stated she would get McQuire and exited the office and called McQuire in, telling her that Terminello wanted to purchase another gram of cocaine. McQuire indicated that this would not be a problem and removed another packet similar to the first from a large plastic bag she kept on her person. This large bag appeared to have twenty (20) to thirty (30) similar type packets within it. Terminello removed a hundred dollar bill from his wallet and handed it to Milotta who in turn handed it to McQuire. McQuire then reached over Milotta and handed Terminello the packet. Shortly after this exchange, McQuire left the office and Milotta continued in general conversation both in the bar and office area until Terminello left the premises at approximately 1:50 A.M. The second package that McQuire gave to Terminello was subsequently determined to be cocaine. On August 28, 1981, at approximately 10:30 A.M., Terminello went back to the licensed premises to continue the investigation. Upon entering the licensed premises he spoke with Carl Bilotti asking if he had any "toot," meaning cocaine. Bilotti stated that he did and that it would be the same price as usual, $70.00. A few minutes later, Bilotti walked up to Terminello who was sitting at the bar and handed him a plastic zip-lock bag containing white powder and Terminello gave him $70.00 in U.S. currency in exchange. The substance which Terminello had purchased from Bilotti was subsequently determined to be cocaine. A few minutes after the exchange of cocaine and currency, Anne Milotta approached Terminello in the bar area and invited him into the manager's office for a drink. When they entered the office, Milotta told Terminello that she had seen the transaction involving the sale of cocaine between Terminello and her brother and wanted to make sure that Terminello was satisfied with the "product." The conversation continued while Milotta intended her managerial duties of making schedules, and answering the telephone. At approximately 11:00 P.M., Milotta asked Terminello if she could "do a line" of his cocaine, meaning use the material. She indicated that she knew "this coke was as good as all the coke that Carl gets." Terminello complied with her request by handing her the plastic zip-lock bag that he had purchased from Carl Bilotti. She again placed two (2) "lines" of the cocaine on the desk and on this occasion used a twenty dollar bill which had been rolled up as a tool to ingest the cocaine in her nose. Terminello simulated the use of cocaine in her presence. Terminello then left the office and exited the licensed premises. On September 4, 1981, at approximately 9:30 P.M., Terminello went back to the licensed premises. When he entered the premises he spoke with Anne Milotta asking her if her brother had "any shit to sell," referring to cocaine. Milotta invited Terminello into her office indicating that her brother did not have cocaine for sale but that she did. Terminello told her that he wanted one (1) gram. She left the office and returned a few minutes later, at around 9:50 P.M., handing Terminello a piece of plastic wrapping containing white powder. Terminello handed her 580.00 in U.S. currency and she returned $5.00, stating that her price was $75.00. Subsequent analysis of the material which he had received from Milotta revealed the presence of cocaine. While in the office area, Milotta continued to perform managerial duties. As Terminello was preparing to leave the licensed premises on this date, Milotta approached him and gave him an additional $5.00 in U.S. currency stating that she had made a mistake and that a gram should only be $70.00 and that she did not want Terminello to think that she was "ripping him off." This discussion of money referred to the purchase of cocaine. On September 9, 1981, at around 10:10 P.M., Terminello went back to the licensed premises. He took a seat at the bar and waited for the appearance of Carl Bilotti. Bilotti entered the licensed premises at around 10:25 P.M. and Terminello asked him if he was "holding any shit," referring to cocaine. Bilotti stated that he was and that it was the usual price of $70.00. Bilotti and Terminello then went to the manager's office. Bilotti left Terminello in that office, shortly thereafter and following this sequence, Terminello gave Bilotti $70.00 in U.S. currency while in the office in exchange for a white piece of paper folded in four parts which contained white, powder. The analysis of this white powder material revealed cocaine. Terminello and Bilotti stayed in the office for a few minutes discussing general topics and the possibility of a large narcotics purchase in the future. Bilotti told Terminello that he would be better off buying a quarter ounce of cocaine for $425.00 rather than one gram at a time for $70.00. Terminello then left the licensed premises at approximately 10:45 P.M. On September 20, 1901, at approximately 12:15 A.M., Terminello returned to the licensed premises. He undertook a conversation with Carl Bilotti while standing near the outside of the front door. After a short conversation, Bilotti indicated that he had cocaine for sale. A few minutes later while inside the licensed premises, Bilotti waved Terminello into the manager's office where he removed a quantity of white powder from a large plastic bag and placed a small quantity of white powder into a piece of paper on the desk. He then folded the piece of paper and handed it to Terminello who handed Bilotti 570.00 in U.S. currency. This white powder was subsequently determined to be cocaine. At approximately 1:00 A.M., Terminello left the licensed premises. On September 26, 1981, at approximately 12:20 A.M., Terminello, while in the licensed premises, entered into a discussion with Carl Bilotti about a narcotics transaction involving the purchase of cocaine. Bilotti indicated that two (2) ounces of cocaine could be purchased for $1,700.00 an ounce and he stated that the safest place for the transaction to occur would be in the office at the licensed premises. On September 29, 1981, at around 11:15 P.M., Terminello and Carl Bilotti, while in the office at the licensed premises, confirmed a future purchase of two (2) ounces of cocaine. Bilotti explained to Terminello the packaging and adulterating procedures to be used in connection with selling the cocaine. On October 2, 1981, at approximately 12:45 A.M., in the office of the licensed premises, Anne Milotta told Terminello that she was aware of the pending large transaction for the purchase of cocaine between Terminello and Carl Bilotti and that her understanding was that the purchase was to occur later that evening. She further stated that due to her brother's unreliability she would also guarantee that two (2) ounces of cocaine would be in the office by 7:00 P.M. on October 2, 1981. On October 2, 1981, a search was made of the licensed premises in connection with a warrant issued by the Dade County Circuit Court. The search warrant was read to Dorothy Bilotti, a principal in the beverage license. During the course of the search, Cathryne Edmondson, one of the dancer/employees was found in possession of marijuana. On December 2, 1981, Carl Bilotti entered a plea of guilty to five (5) counts of sale of cocaine and five (5) counts of possession of cocaine. He was subsequently adjudicated guilty of the sale of cocaine and adjudication was withheld on the counts of possession of cocaine. These matters were in connection with a court case in the Circuit Court, Dade County, Florida.
The Issue This case concerns the entitlement of the Petitioner, Price Candy Company, Inc., trading as St. James Place, to be granted a new Series 2-COP beverage license from the State of Florida, Division of Alcoholic Beverages and Tobacco.
Findings Of Fact Beginning on June 13, 1978, the Petitioner, Price Candy Company, Inc., began the process of applying for a new Series 2-COP beverage license to be issued by the State of Florida, Division of Alcoholic Beverages and Tobacco. This license was to be issued for a premises located at 117 West Duval Street, Jacksonville, Duval County, Florida. The establishment for which this license is intended is a restaurant located in a building known as the May Cohens Building. The Petitioner leases a portion of that building from May Cohens and the balance of the building which constitutes the structure of the prospective licensed area, is controlled by May Cohens. The part of the building controlled by the Petitioner as a street entrance into the dining room area of the restaurant and an entrance from the May Cohens part of the building, which is an interior entrance to the restaurant. These entrances may be seen in examining the Respondent's Exhibit No. 1 admitted into evidence, which is the Petitioner's sketch of the prospective licensed premises which was submitted to the Respondent as a part of the application. Within this diagram are several pencilled changes to the sketch which represent the current state of the building showing an extension of a wall, thereby closing off any direct access from May Cohens to the restrooms associated with Petitioner's restaurant. On May 30, 1979, the Director of the State of Florida, Division of Alcoholic Beverages and Tobacco indicated his intent to deny the application stated that the reason was "Premises to be licensed is connected to other areas over which the applicant will have no dominion or control." As authority for that statement the Director referred to Subsection 561.01(11), Florida Statutes.
Recommendation It is recommended that the Petitioner, Price Candy Company, Inc., trading as St. James Place, be granted a new Series 2-COP beverage license. DONE AND ENTERED this 19th day of December, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: James M. Bailey, Area Supervisor Price Candy Company, Inc. 117 West Duval Street Jacksonville, Florida 32204 Daniel C. Brown, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Respondent is a Florida corporation. Gary Popkin is its sole corporate officer and stockholder. He holds the positions of President, Vice-President, Secretary and Treasurer. Respondent is now, and has been at all times material hereto, the holder of alcoholic beverage license #16- 03 032 2-COP issued by Petitioner. The licensed business is a bar that operates under the name of Lynda's Lounge. It is located at 8007-8009 Kimberly Boulevard in North Lauderdale, Florida. C.G. is a paid confidential informant. The North Lauderdale Police Department is among the law enforcement agencies for whom he works. On the afternoon of July 19, 1989, C.G. entered Lynda's Lounge, sat down and ordered a drink. While in the bar, C.G. was approached by Vinnie Lavarello, another of the bar's patrons. They were joined by Popkin. A conversation ensued. Popkin advised C.G. that he had some "good pot" and asked him if he wanted to buy some. He suggested that C.G. act quickly because he only had a little left. Both Popkin and Lavarello told C.G. that there was no need to worry because everyone in the bar "smoked pot" and was "cool." C.G. informed Popkin that he would "let him know." He thereupon left the bar and paged Detective Gary Harris of the North Lauderdale Police Department. Harris instructed C.G. to meet him at the North Lauderdale police station, which is a short distance from the bar. In accordance with Harris' instructions, C.G. went to the police station. He provided Harris with a description of Lavarello and Popkin, as well as their names. Harris searched C.G. and C.G.'s car for drugs and found none. He then gave C.G. $20.00 with which to purchase marijuana from Popkin. C.G. drove back to the bar. He was followed by Harris in another vehicle. They arrived at the bar at approximately 5:55 p.m.. C.G. entered the bar, while Harris waited outside. Once in the bar, C.G. walked up to Lavarello and indicated that he was interested in consummating the deal they had discussed earlier that day. Popkin apparently overheard C.G. He gave C.G. a package containing marijuana (cannabis). In return, C.G. gave Popkin the $20.00 he had been given by Harris. Following this transaction, there was a discussion concerning the possibility of C.G. purchasing additional drugs, including cocaine, from Popkin. Popkin quoted C.G. prices for various quantities of the drug and encouraged C.G. to come back and do business with him. At approximately 6:10 p.m., fifteen minutes after he entered the bar, C.G. left and drove in his vehicle to a prearranged location to meet Harris. Harris observed C.G. leave the bar and followed C.G. in his vehicle to their predetermined meeting place. After they both exited their vehicles, C.G. handed Harris the marijuana he had purchased from Popkin and told Harris what had happened in the bar. Harris field tested the marijuana. It tested positive. Harris placed the marijuana in a sealed bag and forwarded it to the crime laboratory of the Broward Sheriff's Office. Tests performed at the crime laboratory reflected that the substance that Popkin had sold C.G. was indeed marijuana. After consulting with Harris regarding the matter, C.G. returned to Lynda's Lounge on July 21, 1989, to make arrangements to purchase an ounce of cocaine. As he had been told to do by Popkin, C.G. discussed the matter with Lavarello. C.G. and Lavarello agreed on a purchase price. C.G. then left the bar to get money to make the purchase. After leaving the bar, C.G. went to the North Lauderdale police station and met with Harris. Harris searched C.G. and C.G.'s vehicle for drugs and found none. He then gave C.G. money with which to purchase an ounce of cocaine from Lavarello. Although C.G. and Lavarello had agreed upon a purchase price of $700.00, because it is a common practice of drug dealers to raise their prices immediately before the transaction is to take place, Harris gave C.G. $800.00 in the event Lavarello raised his price. C.G. then drove back to the bar, followed by Harris in another vehicle. After parking, C.G. exited his vehicle and entered the bar. Harris remained outside, across the street from the bar. C.G. approached Lavarello. It was too noisy inside the bar to talk so C.G. and Lavarello left and continued their conversation in C.G.'s vehicle, which was parked in the lot in front of the bar. Lavarello indicated to C.G. that he did not have the cocaine with him and needed to pick it up, but that C.G. would have to give him the entire purchase price before he did so. C.G. then excused himself. He thereupon contacted Harris and they both returned to the North Lauderdale police station. Harris did not want C.G. to give Lavarello that much money and have to wait for the cocaine to be delivered. He therefore decided to have C.G. purchase an eighth of an ounce, instead of an ounce, of cocaine from Lavarello, the purchase price of which, C.G. had been told, was $150.00. Accordingly, Harris took back $600.00 of the $800.00 he had given C.G. earlier that day. Harris then again searched C.G. for drugs and found none. C.G. thereupon headed directly back to the bar, with Harris following behind him in another vehicle. C.G. met with Lavarello at the bar. He told Lavarello that he wanted to purchase a eighth of an ounce, rather than an ounce, of cocaine. He gave Lavarello $200.00 and made arrangements to meet Lavarello later that day at the bar to receive delivery of the cocaine he had purchased. At Lavarello's request, C.G. drove Lavarello to Lavarello's girlfriend's house. C.G. then returned to the North Lauderdale police station. At all times during this journey, C.G. and his vehicle were under Harris' observation. At the police station, Harris again searched C.G. for contraband and found none. Later that day, C.G. and Harris went back to Lynda's Lounge in separate vehicles. Harris remained outside, as C.G. exited his vehicle and headed towards the front door of the bar, where he encountered Lavarello. C.G. and Lavarello then proceeded to C.G.'s vehicle, where Lavarello handed C.G. a package containing cocaine. Upon receiving the package, C.G. complained that it appeared that he had received less cocaine than he had been promised. Lavarello admitted that he had given his girlfriend some of the cocaine that originally had been intended for C.G. To compensate for the missing cocaine, Lavarello gave C.G. a package containing marijuana. In addition to the cocaine and marijuana, Lavarello also gave C.G. a $20.00 bill and a gas receipt reflecting the amount of money he had paid for gasoline during his trip to pick up the cocaine. Following this transaction, C.G. and Lavarello went their separate ways. As he had done after the buy he had made on July 19, 1989, C.G. met Harris at a prearranged location. He handed Harris everything that Lavarello had given him. Harris searched C.G. and found no additional contraband. Harris then field tested both the cocaine and the marijuana. The test results were positive. After conducting these field tests, Harris placed the cocaine and marijuana in a sealed bag and forwarded the bag to the crime laboratory of the Broward Sheriff's Office. Tests performed at the crime laboratory reflected that the substances in question were indeed cocaine and marijuana. Popkin and Lavarello were subsequently arrested by Harris. 1/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order finding Respondent guilty of the violations of Section 561.29(1), Florida Statutes, charged in the January 9, 1990, Notice to Show Cause and revoking alcoholic beverage license #16-03032 2- COP held by Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this & day of October, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675
Findings Of Fact At all times pertinent to these proceedings, Roosevelt Horne was doing business as Roosevelt's Playhouse at 541 Julia Street, New Smyrna Beach, Volusia County, Florida, pursuant to Florida alcoholic beverage license number 74-00549, Series 2-COP. Roosevelt's Playhouse is the licensed premises. From September 21, 1988, through October 1, 1988, Blossem Butler White was employed by Mr. Horne at Roosevelt's Playhouse. Ms. White was the only person employed at Roosevelt's Playhouse by Mr. Horne from September 21, 1988, through October 1, 1988. During the period of September 21, 1988, through October 1, 1988, Reylius Thompson, a Law Enforcement Investigator of the Petitioner, participated undercover in a narcotics investigation of Roosevelt's Playhouse conducted by the Petitioner and New Smyrna Beach law enforcement officials. On the afternoon of September 21, 1988, Investigator Thompson entered Roosevelt's Playhouse. There were approximately 5 to 6 persons on the premises. Ms. White was the bartender. Mr. Thompson asked Ms. White if he could purchase crack cocaine. Ms. White first suggested that Investigator Thompson approach a male patron in the bar. Investigator Thompson indicated that the individual would not sell anything to him. Ms. White then asked Investigator Thompson how much cocaine he wanted and he indicated two pieces. Investigator Thompson gave Ms. White $20.00. Ms. White left her position behind the bar and approached a female patron identified as Angie Lewis. Ms. White and Ms. Lewis then approached a man in the lounge identified as Carlton. Ms. White gave Carlton money and Carlton gave Ms. White an item. Ms. White and Ms. Lewis returned to the bar and Ms. Lewis gave a piece of crack cocaine to Investigator Thompson. Investigator Thompson left Roosevelt's Playhouse and delivered the cocaine to Sergeant Lenz of the New Smyrna Beach Police Department. During the afternoon of September 29, 1988, Investigator Thompson entered Roosevelt's Playhouse. Ten or less patrons were on the premises. Ms. White was on duty as the bartender. Investigator Thompson sat at the bar and asked Ms. White if he could buy crack cocaine from her. Ms. White indicated that she did not have any at that time and asked if he could wait 15 minutes. After fifteen minutes Ms. White took Investigator Thompson into the men's restroom where she retrieved several pieces of crack cocaine wrapped in a napkin. Investigator Thompson took two pieces of the crack cocaine and paid Ms. White $40.00. Investigator Thompson left Roosevelt's Playhouse and delivered the cocaine to Sergeant Lenz. Investigator Thompson returned to Roosevelt's Playhouse during the evening of September 29, 1988. Ms. White was on duty as the bartender. Investigator Thompson asked Ms. White for one piece of crack cocaine. Ms. White left the service bar and went to the ladies restroom. Ms. White returned shortly thereafter and gave Investigator Thompson a piece of crack cocaine. Investigator Thompson paid Ms. White $10.00. Investigator Thompson left Roosevelt's Playhouse and delivered the cocaine to Sergeant Lenz. During the afternoon of September 30, 1988, Investigator Thompson entered Roosevelt's Playhouse. Five to six patrons were on the premises. Ms. White was on duty as the bartender. Investigator Thompson asked Ms. White is she had any crack cocaine. Ms. White said that he should get it from a man in the lounge later identified as Darnell. Investigator Thompson indicated that he did not want to buy it from Darnell. Ms. White then told Investigator Thompson that she would get it for him. Investigator Thompson then gave Ms. White $20.00 and Ms. White gave the money to Darnell in exchange for an item. Ms. White returned to her position behind the bar and gave Investigator Thompson a piece of crack cocaine. Investigator Thompson left Roosevelt's Playhouse and delivered the cocaine to Sergeant Lenz. During the evening of October 1, 1988, Investigator Thompson entered Roosevelt's Playhouse. Ms. White was on duty as the bartender. Ms. White was standing by a video machine talking to an individual known as Tony. Investigator Thompson approached the two individuals and asked Tony if he could buy crack cocaine. Tony said yes, took a piece of crack cocaine from his pocket and placed it on top of the video machine. Investigator Thompson gave Tony $20.00 and took the cocaine. Ms. White witnessed the. transaction. Investigator Thompson left Roosevelt's Playhouse and delivered the cocaine to Sergeant Lenz on October 3, 1988. The items purchased by Investigator Thompson at Roosevelt's Playhouse were analyzed and determined to be cocaine. During the period of September 21, 1988, through October 1, 1988, Mr. Horne was told by a friend that the friend suspected that Ms. White was selling illegal drugs at Roosevelt's Playhouse. Mr. Horne approached Ms. White on two separate occasions and asked her if she was in fact selling drugs. Ms. White denied that she was selling drugs. Mr. Horne did not take any other steps to insure that Ms. White was not selling, or allowing the sale of, drugs on the premises. During the time that Investigator Thompson was in Roosevelt's Playhouse, Mr. Horne did not enter the premises. Mr. Horne did not enter the premises very often despite the fact that Mr. Horne lived only one house from the premises. During the period at issue in this case Mr. Horne's wife had a stroke and was in the hospital. Mr. Horne spent his time visiting his wife in the hospital and working as a building contractor. Other than asking Ms. White if she was selling drugs in the lounge, Mr. Horne did not take any steps to prevent the sale of illegal drugs at Roosevelt's Playhouse. Roosevelt's Playhouse is closed and Mr. Horne is attempting the sell it. Mr. Horne cooperated with the Petitioner in the prosecution of this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Roosevelt Horne, d/b/a/ Roosevelt's Playhouse, be found guilty of violating Sections 561.29(1)(a) and (c), Florida Statutes (1987). It is further RECOMMENDED that the alcoholic beverage license held by Roosevelt Horne be suspended for a period of six months to allow Mr. Horne an opportunity to sell the license and business. It is further RECOMMENDED that, if Mr. Horne has not sold his alcoholic beverage license by the end of the six months suspension of Mr. Horne's license, Mr. Horne's alcoholic beverage license be revoked. DONE and ENTERED this 19th day of July, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 day of 19th July, 1989. APPENDIX Case Number 89-0793 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1. 1. 2-3. 2. 4. 3. 5. See 4. 6-7. Not supported by the weight of the evidence. The evidence did not prove what was being sold on September 21, 1988, by Carlton and on September 23, 1988. 8. See 5. 9. 6. 10. See 7. The sixth sentence is not supported by the weight of the evidence. 11. 8. 12. 9. 13-14. 10. 14-16. 11. COPIES FURNISHED: John B. Fretwell Assistant General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Roosevelt Horne d/b/a Roosevelt's Playhouse 541 Julia Street New Smyrna Beach, Florida 32069 Leonard Ivey Director Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Joseph A. Sole General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927
Findings Of Fact Respondent Mary L. Alexander holds beverage license No. 28-0041, Series 2-COP. Under this license she sells beer and wine at Whisper's Cafe, a business which she has owned and operated for approximately two years in Bunnell, Florida. (Testimony of respondent) Respondent employs a cook and a part-time bartender, who also serves as a disc jockey. The cook works primarily in the kitchen. At around 8:30 P.M., the bartender begins operating the juke box and remains in the dance area of the licensed premises, an area separated by a wall from the rest of the premises. Respondent (or a substitute bartender), works primarily in the bar and pool table area, which is located between the dining and dance areas of the premises. (Testimony of respondent) The evidence establishes, without contradiction, that two of respondent's bartenders committed three separate drug violations on the premises during April and May, 1982. Two violations involved bartender Ronney Locke, one involved bartender Fred Austin. I. Two Drug Violations by Bartender Locke On April 30, 1982, Maria Scruggs, a DABT Beverage Officer, entered Whisper's Cafe in an undercover capacity. Approximately twenty customers were on the premises--four or five were standing at the bar. Officer Scruggs ordered a drink at the bar. Several minutes later, Thomas Alexander, respondent's son, approached her and a conversation ensued. She asked him if he had any marijuana she could buy. He replied that he did not, and then referred the question to bartender Ronney Locke. Mr. Locke, offering to check around the bar, approached Clarence Lorick, a customer, who then delivered a small quantity of marijuana to Mr. Alexander for $5.00. Mr. Alexander, seated at the bar, rolled a marijuana (cannabis) cigarette in his lap and gave it to Officer Scruggs, who then left the premises. The cigarette was rolled in an open manner and in plain view of others on the premises. Respondent was not on the premises during this transaction and was unaware of its occurrence. (Testimony of Scruggs, respondent, P-1) On May 7, 1982, Officer Scruggs reentered the licensed premises in an undercover capacity. She began to talk, separately, with respondent and bartender Locke. She asked Mr. Locke if any cocaine or marijuana was available. He replied that he would check with the other customers for a $5.00 bag of marijuana. He approached Ginnie Lee Caskins a customer, Who then approached Officer Scruggs and handed her a manilla envelope containing marijuana (cannabis). Officer Scruggs said nothing and handed her $5.00. This exchange of money and marijuana took place under the bar and out of view of the other customers on the premises. Although respondent was on the premises, she was not close by and did not see the exchange or overhear the conversation. (Testimony of respondent, Scruggs, P-2) II. Drug Violation by Bartender Austin On May 12, 1982, Alphonso Junious, another DABT Beverage Officer, entered the licensed premises in an undercover capacity. He asked bartender Fred Austin, an employee of respondent, if he knew where he could buy some marijuana. Mr. Austin walked to the door and summoned Clarence Lorick, who then entered the premises. After a brief conversation, Mr. Lorick handed a small quantity of marijuana (cannabis) to Officer Junious, who, in turn, handed him $5.00. This exchange took place in a secretive manner and occurred after respondent had left the premises. She was also unaware of this drug transaction. (Testimony of Junious, respondent, P-3) III. Drug Violation by Respondent DABT also contends that on May 14, 1982, respondent unlawfully aided, counseled, or procured the sale or delivery of marijuana (cannabis) to Officer Junious. Respondent denies it. The evidence, although conflicting, substantiates DABT's contention. On May 14, 1982, Officer Junious reentered the licensed premises in an undercover capacity. He purchased a beer from respondent, who was tending bar. While seated at the bar, he overheard respondent tell an unidentified female patron that she (respondent) had been to a musical concert and had to leave to get something to smoke. Officer Junious, construing this to mean marijuana, said to her, "I could use something to smoke too," or words to that effect. Respondent replied, "Boot got some." (Testimony of Junious) Officer Junious knew who "Boot" (Henry Brown) was, having previously purchased marijuana from him in an undercover capacity. Officer Junious then left the premises, found "Boot" outside, and purchased a small quantity of marijuana (cannabis) from him for $5.00. (Testimony of Junious) These findings are based on the testimony of Officer Junious. Respondent denies that she said "Boot got some" or that she had any conversation with Officer Junious on May 14, 1982. She also denies that she said she could use something to smoke, and states that she does not smoke either tobacco or marijuana. Taking into account her bias and interest in the outcome of this proceeding, the testimony of Officer Junious is more credible and is accepted as persuasive. IV. Respondent's Supervision of the Premises Respondent, periodically, reminded her employees that no marijuana was allowed on the premises. She took no other action to ensure that drug violations would not occur on the premises. (Testimony of respondent On May 27, 1982, arrest warrants were executed by DABT and the licensed premises was searched. No illicit drugs were found on the premises. (Testimony of Scruggs) There is no evidence that marijuana has ever been smoked in the licensed premises. Neither does the evidence support a finding that respondent knew that marijuana had been, or was being, sold or delivered on the premises. The four separate drug violations committed on the licensed premises, and the manner in which they were committed, however, support a conclusion that these violations of law were fostered, condoned, or negligently overlooked by respondent, and they occurred, at least in part, due to respondent's failure to diligently supervise her employees.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license be suspended for a period of 90 days. DONE and ORDERED this 10th day of December,1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1982.
Findings Of Fact Respondent, Edna P. Smith, d/b/a Silver Tip Beer And Wine, holds Alcoholic Beverage License Number 69-465, Series Number 2-COP, to operate Silver Tip Beer And Wine at 1509 West 13th Street, Sanford, Seminole County, Florida. Due to her age and bad health, Respondent hired a manager named Joseph Lee Solomon (Joe) to operate the licensed premises and herself withdrew from the operation and supervision of the licensed premises approximately one to one and one-half years ago. Since then, Respondent's only contact with the operation or supervision of the licensed premises was to receive her profits from Joe. On or about October 22, l985, while he was actively engaged as the manager on the licensed premises, Joe did unlawfully aid, abet, counsel, hire or otherwise procure the sale/or delivery of a controlled substance as defined in Section 893.03, Florida Statutes, to wit: aided a patron, in selling marijuana to a third party, on the licensed premises, in violation of Sections 777.011 and 893.13(1)(a), Florida Statutes. On or about October 28, 1985, while he was actively engaged as the manager on the licensed premises, Joe did unlawfully aid, abet, counsel, hire or otherwise procure the sale and/or delivery of a controlled substance as defined in Section 893.03, Florida Statutes, to wit: aided a patron, in selling marijuana to a third party, on the licensed premises, in violation of Sections 777.011 and 893.13(1)(a), Florida Statutes. On or about November 6, 1985, while he was actively engaged as the manager on the licensed premises, Joe did unlawfully aid, abet, counsel, hire or otherwise procure the sale and/or delivery of a controlled substance as defined in Section 893.03, Florida Statutes, to wit: aided a patron, in selling marijuana to a third party on the licensed premises, in violation of Sections 777.011 and 893.13(1)(a) within Section 561.29(1)(a), Florida Statutes. On or about November 18, 1985, while he was actively engaged as the manager on the licensed premises, Joe did unlawfully possess and sell and/or deliver a controlled substance as defined in Section 893.03, Florida Statutes, to wit: sold and personally delivered marijuana to a third party, on the licensed premises in violation of Section 893.13(1)(a), Florida Statutes. On or about November 21, 1985, while he was actively engaged as the manager on the licensed premises, Joe did unlawfully possess and sell and/or deliver a controlled substance as defined in Section 893.03, Florida Statutes, to wit: sold and personally delivered cocaine to a third party, on the licensed premises in violation of Section 893.13(1)(a), Florida Statutes. On or about November 25, 1985, while he was actively engaged as the manager of the licensed premises, Joe did unlawfully possess and sell and/or deliver a controlled substance as defined in Section 893.03, Florida Statutes, to wit: sold and personally delivered cocaine to a third party, on the licensed premises in violation of Section 893.13(1)(a), Florida Statutes. On or about December 5, 1985, while he was actively engaged as the manager of the licensed premises, Joe did unlawfully possess and sell and/or deliver a controlled substance as defined in Section 893.03, Florida Statutes, to wit: sold and personally delivered cocaine to a third party, on the licensed premises in violation of Section 893.13(1)(a), Florida Statutes. On or about December 16, 1985, while he was actively engaged as the manager of the licensed premises, Joe did unlawfully possess and sell and/or deliver a controlled substance as defined in Section 893.03, Florida Statutes, to wit: sold and personally delivered cocaine to a third party, on the licensed premises in violation of Section 893.13(1)(a), Florida Statutes. The transactions referred to in paragraphs 3. through 10. above occurred in view of all patrons in the licensed premises at the time. In addition, patrons openly smoked marijuana, snorted cocaine and injected drugs hypodermically in front of Joe, the manager, during the time period from approximately October 22, 1985, through December 19, 1985. There was no need to hide these activities from Joe because he knew about them and condoned them. On December 19, 1985, Joe was arrested and was in possession of cocaine in violation of Section 893.13(1)(a), Florida Statutes. It was not proved that Respondent had actual knowledge of the violations described in paragraphs 3. through 10. and 12. above. Nor was it proved that she actually condoned them. But it was proved that Respondent was negligent in supervising her manager, Joe, and the operation of the licensed premises. Her negligence allowed the violations to take place easily and with impunity until her license was suspended.
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 69-465, Series 2-COP, held by Respondent, Edna P. Smith, d/b/a Silver Tip Beer And Wine, 1509 West 13th Street, Sanford, Florida. RECOMMENDED this 24th day of January, 1986, at Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1986. COPIES FURNISHED: Thomas A. Klein, Esq. Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Edna P. Smith 1900 West 18th Street Sanford, Florida 32771 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue in this case is whether the Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT), should revoke, suspend, or otherwise discipline the alcoholic beverage license number 13-153, Series 5-COP, issued to the Respondent, Tupelo Management, Inc., doing business as Pastime, a bar located at 3602 West Highway 98, Panama City, Florida, upon the following grounds alleged in DABT's Notice To Show Cause issued May 2, 1984: On or about March 7, 1984, you, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, your agent, servant or employee, to wit: Margie, did violate F.S. 561.29(1)(a), to wit: did sell or deliver marijuana to Investigator Moore on your licensed premises in violation of F.S. 893.13. On or about March 12, 1984, you, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, your servant, agent or employee, to wit: Margie, did violate F.S. 561.29(1)(a), to wit: did sell or deliver marijuana to Detective Moore on your licensed premises in violation of F.S. 893.13. On or about March 23, 1984, you, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, your agent, servant or employee, to wit: Teresa, did violate F.S. 561.29(1)(a), to wit: did deliver marijuana to Investigator Moore on your licensed premises in violation of section 893.13. On or about March 26, 1984, you, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, your agent, servant, or employee, to wit: Margie, did violate F.S. 561.29(1)(a), to wit: did sell or deliver marijuana to Investigator Moore and Officer Russ on your licensed premises in violation of Section 893.13. On or about April 2, 1984, you, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, your servant, agent or employee, to wit: Margie, did violate F.S. 561.29(1)(a), to wit: did sell or deliver marijuana to Investigator Moore and Officer Russ on your licensed premises in violation of Section 893.13. On or about April 9, 1984, you, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, your servant, agent or employee, to wit: Margie, did violate F.S. 561.29(1)(a), to wit: did sell or deliver marijuana to Investigator Moore and Officer Russ on your licensed premises in violation of Section 893.13. You, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, between March 7, 1984 and the date of service of this Notice to Show Cause have maintained a public nuisance on your licensed premises, to wit: a place or building which is visited by persons for the purpose of unlawfully using, keeping, selling and/or delivering controlled substances in violation of Chapter 893, Florida Statutes, such being a violation of: (a) Florida Statutes 823.10 and 561.29(1)(c); (b) Florida Statutes 823.01 and 561.29(1)(a). You, Tupelo Management, Inc., d/b/a the Pastime, licensed under the beverage laws, between March 7, 1984 and the date of this Notice to Show Cause have maintained your licensed premises as a place resorted to by persons selling controlled substances in violation of Chapter 893, Florida Statutes, in violation of Sections 893.13(2)(a)5 and 561.29(1)(a), Florida Statutes.
Findings Of Fact Based on the testimony of the witnesses and the exhibits admitted in evidence at the hearing, I make the following findings of fact: At all times relevant and material to this case, Tupelo Management, Inc., has been the holder of alcoholic beverage license number 13-153, Series 5- COP, issued for the premises known as the Pastime, located at 3602 West Highway 98, Panama City, Florida. Mr. John Michael Whitfield is, and was at all relevant and material times, the president of Tupelo Management, Inc. Mr. Whitfield and his wife own all of the stock of Tupelo Management, Inc. Mr. Whitfield first opened the Pastime on May 18, 1977. At that time it was a small beer and wine bar with five pool tables. Over the years the business grew and in August of 1983 Mr. Whitfield purchased a 5-COP license for the Pastime. Prior to the events giving rise to this case, the Pastime had only been cited by the DABT for two violations. The first violation occurred during the first year of Pastime's operation. It concerned the wording of an advertisement on the exterior of the building. A DABT agent wrote a report or citation and the sign was promptly removed. No penalty was imposed as a result of that event. The second violation occurred during January of 1984. On that occasion the DABT agents found two minors on the licensed premises. The January 1984 violation was resolved by stipulation, pursuant to which Tupelo Management, Inc., paid a civil penalty in the amount of $250.00. The Bay County Sheriff's Department began an investigation of the Pastime in March of 1984 on the basis of information that illegal drug activity was occurring on the licensed premises. Mr. Floyd M. Moore, Jr., an investigator with the Bay County Sheriff's Department, went to the licensed premises the evening of March 7, 1984. Investigator Moore was introduced by a confidential informant to a waitress named Margie Adams, who was employed on the licensed premises. Investigator Moore asked Margie Adams if she could obtain some marijuana and she answered in the affirmative. Investigator Moore left the premises and returned at approximately 7:45 P.M. that same evening. He made contact with Margie Adams again. Margie Adams made a telephone call and then told Investigator Moore the marijuana would be there a short time later. At about 8:45 P.M. Margie Adams asked Moore how the transaction could be made. At Moore's suggestion they went to a table on the licensed premises and Margie Adams handed Investigator Moore a clear plastic bag containing marijuana. The plastic bag was covered when it was given to Investigator Moore. Investigator Moore paid Margie Adams $35.00 for the marijuana. On March 12, 1984, at approximately 7:45 P.M. Investigator Moore and Beverage Officer Rodney Russ entered the Pastime. After Investigator Moore introduced Margie Adams to Russ, Margie asked Moore if he had liked what she had previously sold him and agreed to get another bag for Moore, stating that it would just take a phone call. Margie spoke to a female waitress for a few minutes, after which she went behind the bar and made a telephone call. She thereafter returned to the officers and stated that the marijuana would arrive in approximately 30 minutes and asked that Investigator Moore pay her at that time to avoid confusion when it arrived. Investigator Moore gave Margie $35. At approximately 8:45 P.M. Margie told Investigator Moore that the merchandise had arrived and asked him to walk to the end of the bar. Moore went to the end of the bar located next to the dart board, where there was a lot of activity and numerous people, and Margie handed him a white paper napkin covering a plastic baggie of marijuana. On the evening of March 19, 1984, Investigators Moore and Russ returned to the Pastime. The officers each ordered one-quarter ounce of marijuana from Margie Adams but she stated that the person she was getting it from was not home so it would take some time. The officers observed Margie making a phone call, after which she told them that it would be approximately one hour before she could deliver. The officers left the Pastime and returned at approximately 9:00 P.M. The officers entered into a conversation with a male patron who told them there was a man in the pool room trying to sell marijuana. Investigator Moore told the patron to tell the man in the pool room that they were interested in buying. The patron went to the pool room and spoke to a male, who later came over to the officers and introduced himself as George. George (who was later identified as George W. Osborne) told the Officers that he had heard they were interested in buying, and Moore explained that they had ordered one-quarter ounce each but it did not look like it was going to arrive. George stated that he could sell them one-quarter ounce for $35.00 and the officers agreed to buy it. George left the officers and went to speak with Margie Adams. He returned shortly and asked the officers if they were getting their marijuana from Margie Adams. Russ stated that he would rather not say, and George said it was okay because he and the waitress were getting from the same person and that he and Margie had discovered that they were each ordering for the same persons. Russ told Margie that he did not want to cut her out of a sale, and she stated that it was okay to buy from George, that it was just like buying from her and she would get credit for the sale. During the time that Russ was talking to Margie, George handed Investigator Moore an orange tablet which he stated was a Preludin. Shortly thereafter, the officers and George walked outside to a motorcycle parked near the door and George laid two plastic baggies containing marijuana on the seat of the motorcycle. Each officer obtained one of the baggies of marijuana and each paid George 535.00. On March 22, 1984, Investigators Moore and Russ returned to the pastime. Margie was not on duty that night. Moore and Russ spoke to two waitresses who were on duty, Karen and Sionna, and told the waitresses they had purchased marijuana from George and were waiting to buy some more from him. The officers asked Sionna if George was an all right guy to deal with and she said that he was. Later that evening when George entered the Pastime he spoke to Sionna and then went back outside where the officers observed him talking to customers near the front door. A few minutes later George approached the officers and asked how they had liked the marijuana he had sold them. The officers said it had been fine and they asked George if he could obtain some more marijuana and some more "speed" or Preludin. George said he could obtain both and he left the premises on his motorcycle. When George returned he approached Investigator Russ and handed him five orange tablets which were supposed to be "speed" or Preludin. Investigator Russ paid George $25.00 for the tablets. George told the officers he had been unable to obtain marijuana, but would have some the following morning. The five tablets sold to Investigator Russ were later tested and found to contain caffeine, but they did not contain any controlled substances. On March 22, 1984, Detective Jonathan McNeil and Investigator Pam Hellett were also at the Pastime. They were seated at a booth with other officers. A male who identified himself as Phillip (later identified as Leroy Phillips) sat with the officers for a while. He got up to leave and told Detective McNeil that he would be back, he just needed to find something for his head. When he returned, McNeil asked Phillips where he could get something for his head and Phillips got up and said that he would go see his sister, he knew she had something. Phillips later identified his sister as Gloria, the manager of the Pastime. When Phillips returned to the table, he pulled a package of cigarettes from his pocket and showed Detective McNeil two small white square pieces of paper under the cellophane portion and stated that they were two hits of acid. McNeil paid Phillips $10.00 and took the two pieces of paper and inserted them into his cigarette package. Phillips told McNeil that the acid was "Mr. Natural." The pieces of paper were subsequently tested and found to contain LSD. The male previously identified as George came and sat with the officers and they began discussing whether a man seated at the next booth was a police officer. Investigator Hellett said to George, "Hurry up and give me everything you have," and George reached into his jacket and removed several orange tablets and some marijuana, which he placed in Investigator Hellett's lap. Hellett told George that she did not accept anything that she did not pay for and he asked how much she would like to buy. Detective McNeil asked George how much he was selling the tablets for and he stated that he would sell them to the officers for $3.00 apiece although he had sold them to other Persons for $5.00. McNeil agreed to buy five tablets and, in an attempt to be discreet, handed George $15.00 under the table. George handed the tablets to McNeil under the table, although McNeil stated that he was the only one trying to be discreet about the transaction. Investigator Hellett bought seven tablets from George in exchange for $21.00. George gave Investigator Hellett a small amount of marijuana and told her to try it and see if she liked it. The substance given to Investigator Hellett was subsequently tested and found to be marijuana, and the pills were tested and found to contain caffeine, but not to contain any controlled substance. Late in the morning on March 23, 1984, Investigator Moore went to the licensed premises to obtain the marijuana previously promised by George. George was not at the Pastime, and Moore talked to the bartender Teresa about being there to obtain marijuana from George. Teresa stated that George was probably getting it from "us." After conversing with Teresa about other drug transactions, Moore told Teresa that it looked like George was not going to arrive and Teresa stated that she would give him some. She put her purse on the bar and removed from it a small portion of marijuana and placed it in a napkin lying on the bar. Investigator Moore observed Mr. Michael Whitfield and his wife on the licensed premises, but neither of them were in sight at the time Teresa placed the marijuana on the napkin. Moore also talked to Teresa about cocaine and she said she could obtain some for him for $100.00 a gram. On March 26, 1984, Investigators Moore and Russ returned to the Pastime. They asked the waitress Margie Adams if she could get them a quarter ounce of marijuana. At first she said she could not, because she said she had had a fight with her supplier. Later she said she could obtain some marijuana from someone else, but that she did not know anything about the quality of the marijuana. The officers told Margie that they would trust her judgment on the matter. Investigator Russ paid Margie $40.00 for the marijuana, $5.00 of which was a tip for her. At about 8:55 P.M. that evening Margie Adams approached Investigator Moore. She had a napkin on a tray and told Moore that it was in the napkin. Investigator Moore took the napkin from the tray. Inside the napkin was a small plastic bag containing marijuana. On April 2, 1984, Investigators Moore and Russ returned to the Pastime. The waitress Margie Adams told the officers that she was leaving at 8:00 P.M. and Investigator Russ advised her that they would like to purchase one-quarter ounce of marijuana before she left. Margie stated that she would see what she could do and later came over and said that she had arranged for some marijuana to be delivered and that if it did not arrive before she left, one of the other waitresses would deliver it to them. A short time later Margie returned and showed Investigator Russ a towel on her tray. A plastic baggie of marijuana was under the towel. Investigator Russ took the plastic baggie of marijuana and paid Margie for it. Then he placed the baggie on the table and both investigators wrote their initials on it. On April 9, 1984, Investigators Moore and Russ returned to the Pastime. Margie Adams approached the officers and Russ asked whether she could get them some more of the same marijuana. She said she could and asked how much they wanted. The officers openly discussed the amount to be purchased and agreed upon one-half ounce, which Margie stated would be cheaper than purchasing two one-quarter ounces. Russ asked Margie if she could get some LSD or acid. Margie later came over to the officers and stated that the marijuana had arrived but that she could not deliver it because an undercover officer was seated at the bar. Margie later returned and sat beside Moore and handed him a white napkin covering a clear plastic baggie of marijuana. The officers paid her for the marijuana. Margie told them that she had not been able to get any acid. Investigator Russ told her he would be in town later on and would like to have a couple of hits of acid. On April 11, 1984, Investigator Russ went to the Pastime and asked Margie Adams if she had been able to obtain any acid or LSD. Margie said she had been unable to get it yet. Russ told her he was going to Montego Bay (another bar) and Margie said that if she was able to get the acid she would bring it to him at Montego Bay later that night. Russ paid her $20.00 for three hits of acid at $5.00 each, plus $5.00 as a tip for her. On April 16, 1984, Investigators Moore and Russ entered the Pastime to find out if Margie Adams had been able to obtain the acid Investigator Russ had paid her for. Margie was not present when the investigators arrived. When she came in later, she told the officers she had been unable to obtain the acid since she had been out of town for her grandmother's funeral. George Osborne was on the premises and Investigator Moore asked George if he had a quarter- ounce of marijuana to sell. George stated that he could get it for them in a few seconds. George left and returned shortly, motioning to investigator Moore to follow him. Moore followed George to the restroom and George handed Moore a plastic baggie containing marijuana. As Moore was examining the baggie, two white males entered the restroom, observed George and Moore, commented on how nice the marijuana looked, and asked how much it cost. Officer Moore paid George $45.00 for the marijuana and returned to the table and handed the baggie to Russ. Russ opened the baggie in plain view of other patrons and smelled the contents. Margie Adams, who was waiting on another nearby table, observed the bag of marijuana and commented to the investigators that she saw that they had gotten what they were looking for. Russ then put the baggie of marijuana in his shirt pocket so that half of it was visible and visited around the bar for several minutes. One patron told Russ that he was about to lose something out of his pocket. On April 25, 1984, Investigators Moore and Russ entered the Pastime again. They asked Margie Adams if she had been able to obtain the acid Russ had paid her for. Margie told the investigators she had been unable to obtain the acid. Investigator Moore contacted George Osborne and asked whether George could get the officers a quarter-ounce bag of marijuana and also asked how long it would take. Shortly thereafter George and the two investigators walked outside to George's motorcycle and George removed from his shoe a wallet containing two plastic baggies. As George handed Moore one of the baggies, a white male walked up. George asked what he wanted and he said he wanted a bag. George went inside to make change for the $40.00 Moore had given him. While George was inside the white male said that he had been told to go to the Pastime if he wanted drugs. George returned with Moore's change and then walked around to the back of the establishment with the white male. The baggie George had handed to Moore contained marijuana. In brief summary of the foregoing, during the 7-week period from March 7, 1984, through April 25, 1984, the following events occurred on the licensed premises: 3/07/84 Employee Margie Adams sold marijuana to Investigator Moore. 3/12/84 Employee Margie Adams sold marijuana to Investigator Moore. 3/19/84 Employee Margie Adams agreed to sell marijuana to Investigator Moore and Russ, but she did not sell them anything that day. 3/19/84 Patron George Osborne, with the knowledge of employee Margie Adams, agreed to sell marijuana to Investigator Moore and Russ. (The actual sale took place outside the licensed premises.) 3/22/84 Patron George Osborne, with the knowledge of employee Sionna, agreed to sell marijuana and "speed," or Preludin to Investigators Moore and Russ, and actually sold 5 tablets to Investigator Moore which were supposed to he "speed," or Preludin. 3/22/84 Patron Leroy Phillips sold fro tabs of LSD to Detective McNeil. 3/22/84 Patron George Osborne gave some marijuana to Investigator Hellett, sold 7 tablets that were supposed to be "speed," or Preludin to Investigator Hellett and sold 5 of the same tablets to Detective McNeil. 3/23/84 Employee Teresa gave some marijuana to Investigator Moore and told him she could obtain cocaine for him. 3/26/84 Employee Margie Adams sold marijuana to Investigators Moore and Russ. 4/02/84 Employee Margie Adams sold marijuana to Investigators Moore and Russ. 4/09/84 Employee Margie Adams sold marijuana to Investigators Moore and Russ and agreed to sell Russ some LSD. 4/11/84 Employee Margie Adams agreed to sell LSD to Investigator Russ and accepted payment for same, but did not deliver anything to him that day. 4/16/84 Patron George Osborne, with the knowledge of employee Margie Adams, sold marijuana to Investigator Moore. 4/25/84 Patron George Osborne agreed to sell marijuana to Investigators Moore and Russ. (The actual sale took place outside the licensed premises.) The vast majority of the drug transactions described above were accomplished in a relatively discreet manner. Most of the transactions took place in a booth and involved delivery of marijuana that was covered with a towel or a napkin. During the period of the investigation which led up to this case, the police officers and DABT investigators did not see any illegal drug usage or any illegal drug transactions on the licensed premises other than the ones they were personally involved in. Mr. John Michael Whitfield, the President of Tupelo Management, Inc., and co-owner with his wife of all of the corporation's stock, takes an active role in the management of the business because it is his family's sole source of income. He usually visits this licensed premises six days per week and he spends between 40 and 50 hours per week at the licensed premises. Mr. Whitfield is well educated. His formal education includes a Bachelor of Science degree in Social Welfare and a Master's degree in Social Work, both from Florida State University. After receiving his Master's degree, Mr. Whitfield was employed for three years as the Assistant Director of the Mental Health Center in Panama City, Florida. Thereafter he also worked for a year as Director of the Gerontology program at the same Mental Health Center. His work at the Mental Health Center included work in the area of drug abuse and alcoholism programs. Mr. Whitfield has never used any type of illegal drugs and is opposed to the use of illegal drugs by others. Mr. Whitfield has a very responsible attitude towards the fulfillment of his obligations and responsibilities as an alcoholic beverage licensee. For example, prior to January 1984, Mr. Whitfield had always used his own employees as doormen to check identification of patrons. Immediately after two minors were found on the licensed premises in January of 1984, Mr. Whitfield not only fired the doorman who was on duty that night, but arranged with Florida Security Service to provide extra uniformed security personnel to check the identification of patrons. When Mr. Whitfield met with DABT representatives concerning the problem with the two minors, he was advised that the two major priorities of the DABT were minors and drugs. Mr. Whitfield had several meetings with all of his employees in which he told them explicitly that he did not want to have any problems with minors or drugs on the licensed premises. He told all of the employees that they would be fired if they were responsible for any problems on the licensed premises related to minors or drugs. He also told the employees they would not be given any second chances about such matters, but would be fired for a first offense. Prior to May 2, 1904, when the Notice To Show Cause was served on the Pastime, Mr. Whitfield had never seen anything that caused him to suspect there was a drug problem at the Pastime. The security service never told him that there was a drug problem at the Pastime or that they suspected a drug problem. The uniformed police officers who walked through the Pastime practically every night never told him he had a drug problem on the licensed premises. Mr. Whitfield usually requires prospective employees to fill out a written application form. He usually does not check references, but he usually does check with prior employers. Mr. Whitfield will not hire people who have previously worked in what he considers to be dives. His usual employment practices notwithstanding, Mr. Whitfield has occasionally failed to require a written application and has occasionally failed to check the background of new employees. Some of the employees and former employees he failed to check were the causes of the present charges against Mr. Whitfield. One former employee whose background was not checked was George Osborne. Mr. Whitfield has barred several patrons in the past for improper conduct on the licensed premises and he has barred a suspected drug dealer from patronizing the Pastime. The DABT sent a letter to all alcoholic beverage licensees in south Florida in March of 1984 advising them of the DABT's priorities. The main priorities were the prevention of sales of alcoholic beverages to minors and the prevention of illegal drug activities on the licensed premises. The letter was not sent to alcoholic beverage licensees in north Florida, but will be sent to them later.
Recommendation For all of the foregoing reasons I recommend that the Division of Alcoholic Beverages and Tobacco enter a Final Order finding that the Respondent has violated Sections 561.29(1)(a) and (c), Florida Statutes, ordering the Respondent to pay a civil penalty of five hundred dollars ($500.00) for each of the violations charged in the first six paragraphs of the Notice To Show Cause (a total of three thousand dollars), and suspending the Respondent's alcoholic beverage license for a period of six months. DONE and ORDERED this 29day of October, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1984.
The Issue This case concerns the issue of whether the Respondent's beverage license should be suspended, revoked, or otherwise disciplined for maintaining a licensed premises where illegal drugs are sold and solicitations for prostitution take place. At the formal hearing, the Petitioner called as witnesses Carol Houston, Michael Collins, Chester L. Copeland, Vincent Rodriguez and John T. Allen. Petitioner offered and had admitted into evidence six exhibits. Respondent offered and had admitted into evidence one exhibit. Mr. Samuel Williams testified on behalf of Respondent.
Findings Of Fact The Respondent holds and at all times material to this action held beverage license No. 39-684, Series 4-COP. The licensed premises under that license is located at 2801 Nebraska Avenue, Tampa, Florida. Mr. Samuel Williams is president of the Respondent, Skylight Corporation, and owns 60 percent of the stock of that corporation. On the evening of July 27, 1983, Beverage Officer Carol Houston went to the licensed premises, The Blue Room Lounge, to conduct an undercover investigation. Upon entering the lounge Officer Houston took a seat at the bar and ordered a drink. After the shift change, Officer Houston talked to Brenda Brock, the bartender on duty. Officer Houston told Ms. Brock she liked to get high and asked if there was anyone in the bar from whom she could buy "reefer". Reefer is a street or slang term for marijuana or cannabis. Brenda Brock told Officer Houston that the person who usually sells reefer wasn't in the lounge at that time. Ms. Brock also related that she was high herself and had smoked a joint before coming on duty. When Officer Houston had entered the bar, Officer Michael Collins of the Tampa Police Department was already present in the lounge. Officer Collins, also working undercover, asked Brenda Brock where he would purchase some marijuana. When he asked Ms. Brock this question, she pointed out a black male named Chunky and said that he sold marijuana. Officer Collins then asked Brenda Brock to get Chunky for him and she did. The young male named Chunky approached Officer Collins and said he didn't have any marijuana but would have some later. At some time later in the evening, a young black male named Ace entered the lounge and Brenda Brock pointed to him and said to Officer Collins "that's him." Ace walked over to Officer Collins and asked if he was the guy looking for some marijuana. Officer Collins told him that he was but that he had promised to buy from someone else. Ace then asked Brenda Brock to verify to Officer Collins that he had been sent by Chunky and Brenda Brock said that he had in fact been sent by Chunky. As Ace had walked up to Officer Collins, he had three plastic bags of marijuana (cannabis) in his hands. He sold one of these bags to Officer Collins. Ace then sold a second bag of marijuana to a woman named Celeste who was sitting next to Officer Collins. Celeste was the bartender who had been relieved by Brenda Brock. Celeste purchased a $5 bag of marijuana from Ace and the exchange took place in the open and was observed by Officer Collins. After making the sales to Officer Collins and to Celeste, Ace approached Beverage Officer Houston who was still seated at the bar in a different area than Officer Collins and Celeste. He asked Officer Houston if she wanted to purchase some marijuana. She said yes and further stated that she wanted a $5 bag. He handed her a plastic bag containing marijuana and Officer Houston laid it on the bar in the open. Brenda Brock walked over and told her to put the bag up. Officer Houston then placed the bag of marijuana in her purse. Officer Houston then asked Brenda Brock if she had any papers she could use to roll a "joint". A joint is a slang term or street term referring to a marijuana cigarette. Brenda Brock said she did not have any papers. The purchase by Officer Houston of the marijuana took place in the open and was observed by Officer Collins from a different area of the bar. Later in the evening of July 27, 1983 two white females came into the lounge. Brenda Brock pointed to them and said those two ugly bitches called themselves prostitutes. At the time that the purchases of marijuana were made by Officer Collins, Celeste and Officer Houston, Brenda Brock was on duty as bartender and made no effort to stop the transactions. Mr. Samuel Williams had been in the lounge earlier in the evening, but was not present in the lounge when the marijuana transactions took place. On July 28, 1983, Officer Houston returned to the licensed premises approximately 7:00 p.m. When she arrived Samuel Williams was present in the lounge. Mr. Williams was talking with two men seated at the bar and was overheard by Officer Houston to say that before he would have those two prostitutes on the phone all night, he would have it taken out. Brenda Brock was the bartender on duty that evening and Officer Houston asked her if Ace was around. Ms. Brock replied that no one was around who had any reefer. Officer Houston left the lounge approximately 8:30 p.m. and returned at approximately 11:30 p.m. Upon entering, she ordered a drink from Brenda Brock and asked Ms. Brock if Ace had been back in because she wanted to get some reefer now. Ms. Brock replied that he was in the lounge and that she would get him for her. Shortly thereafter, Ace came over and asked Officer Houston what she wanted. She told him she wanted some reefer. Ace then walked away and shortly returned with a plastic bag containing marijuana. Officer Houston handed Ace a $20 bill and because Ace indicated he had no change, Officer Houston handed the $20 bill to Brenda Brock who gave her two $5 bills and one $10 bill as change. Officer Houston then handed a $5 bill to Ace as payment for the bag of marijuana. Also on the evening of July 28, 1983, while Officer Houston was seated at the bar, Brenda Brock told her a gentleman wanted to speak to her. The gentleman was Officer Collins, also working undercover. Officer Houston walked over and spoke to him briefly and the two of them returned to where Officer Houston had been seated in front of the cash register. There they discussed the price of a "date". A date is a common palance or street term for a sexual encounter for money or prostitution. A "date" is also referred to as a "trick". After agreeing upon a price, Officer Houston handed her purse and drink to Brenda Brock and asked Ms. Brock to hold them while she went outside to do a trick. Brenda accepted the purse and drink and Officer Houston left the bar with Officer Collins. Approximately 20 minutes later, Officer Houston returned and Brenda Brock gave her back her purse and her drink. At no time did Brenda Brock object to or inquire about Officer Houston's activities. On July 30, 1983, Beverage Officer Houston returned to The Blue Room Lounge at approximately 5:30 p.m. She entered the lounge and took a seat at the bar and ordered a drink from Brenda Brock who was on duty as bartender. While she was seated at the bar a young black female came up and asked her if she wanted to buy some reefer. Officer Houston had seen this young woman in the bar previously. She told her she did not want to buy any marijuana and after the young woman left she asked Brenda Brock who the young woman was. Brenda Brock said she was Ace's sister and in response to Officer Houston's questions, indicated that it was alright to buy reefer from her. Later that evening Ace came in and asked Officer Houston if she wanted to buy some marijuana. She told him that she had met his sister and Ace then called the young black female over and introduced her to Officer Houston as his sister. Officer Houston told Ace that she wanted to buy a $5 bag of marijuana. Ace then went over to his sister and brought back a clear plastic bag of marijuana. Officer Houston handed him a $20 bill and he indicated he did not have change. She then obtained change for the $20 bill from Brenda Brock and handed $5 of the change to Ace. Brenda Brock was standing right in front of her at the bar when she handed Ace the $5. In the early morning hours of July 30, 1983, just after midnight, Beverage Officer Hamilton entered the The Blue Room Lounge. He came over and talked with Officer Houston about a "date". While they haggled over a price Brenda Brock was seated directly across the bar from Beverage Officer Houston. After agreeing upon a price for the date, Officer Houston handed her purse to Brenda Brock and asked her to hold it while she did this trick. Brenda Brock took the purse and agreed to hold it. Beverage Officer Houston then left the lounge with Officer Hamilton. A few minutes later Beverage Officer Houston returned to the bar and Brenda Brock gave her her purse and put the drink which she had been drinking back on the bar. On August 1, 1983, Officer Houston returned to the licensed premises at approximately 9:30 p.m. She took the same seat near the cash register where she had sat on the previous evenings. Ace was present in the lounge. Officer Houston asked Brenda Brock to ask Ace to bring her a dime bag of marijuana. (A dime bag is a $10 bag. Brenda Brock went over to Ace and Ace then approached Officer Houston and asked her how much she wanted. At that time Officer Houston asked him if he could sell her some cocaine. He said he didn't have any but would have some later. Officer Houston then purchased two bags of marijuana from Ace for which she paid him $10. She handed him a $20 bill and he gave her $10 in change and when this exchange took place, Brenda Brock was in the area nearby on the other side of the bar. Officer Collins also went to the licensed premises on August 1, 1983 at approximately 10:55 p.m. After entering the lounge he told the barmaid, Brenda Brock, that he wanted to buy some good marijuana. She signaled to Ace and Ace came over to her. She whispered to Ace. Ace had walked up with a bag of marijuana already in his hand and after speaking with Brenda Brock he walked over and sold the bag of marijuana to Officer Collins for $5. Brenda Brock never objected to discussions regarding drugs or refused to get involved. There were no signs in the bar saying "No Drugs, No Loitering, No Prostitution", or signs with rules of management. On the evening of August 1, 1983, Officer Chester L. Copeland of the Tampa Police Department was also in the licensed premises in an undercover capacity. While standing at the bar Officer Copeland talked with Brenda Brock and asked her if Carol Houston was "dating". Brenda Brock said she didn't know. Ms. Brock then walked over and whispered something to Carol Houston and then returned to where Officer Copeland was standing and informed him that Carol was "dating". Officer Copeland then went over to Officer Houston and conversed with her about the price of a date. Brenda Brock was standing nearby during this conversation and made no objection to the discussion. After agreeing on a price Officer Houston handed her purse to Brenda Brock and left the lounge with Officer Copeland. Officer Collins also present in the lounge, observed Officer Houston and Officer Copeland leave the lounge together. Prior to this occasion Officer Collins had asked Brenda Brock if Officer Houston dated. Ms. Brock had indicated she didn't know and he had told her to go ask. She did go ask Officer Houston and came back and informed Officer Collins that she did date. Officer Collins then asked Ms. Brock the price of a date and she said she didn't know. Officer Collins asked her to go ask. Ms. Brock walked over and spoke with Officer Houston and came back and said the price was $50. On this particular evening of August 1, 1983, after he observed Officer Houston and Officer Copeland leave the bar, Officer Collins asked Brenda Brock if Officer Houston was coming back. Ms. Brock said she didn't know. Officer Collins then asked her if Carol (Officer Houston) was out on a date and Brenda Brock replied that she thought so. On each of the occasions that Officer Collins discussed prostitution with Brenda Brock he instituted the conversation, but Ms. Brock freely discussed it and made no objection to the discussions. Shortly after she had left with Officer Copeland, Carol Houston returned to the licensed premises. Officer Collins then approached her and talked about a "date". After a short discussion he and Officer Houston left the bar together. On August 3, 1983, Officer Houston again returned to the licensed premises at approximately 10:30 p.m. She took a seat at the bar directly in front of where Brenda Brock was working as bartender. Seated near her at the bar was a latin male who kept asking her to come over. After she had been there a short time, Brenda Brock came over to Officer Houston and said that the latin male wanted to know how much she charged for a date. Officer Houston did not respond and Brenda Brock shouted to the latin male $100. A short time later Brenda Brock came back over to Officer Houston and said that the latin male said he had some cocaine. Officer Houston then told the latin male in a loud voice that he better also have lots of money. That same evening Brenda Brock also told Officer Houston that another male, Officer Collins, wanted a date and had some cocaine. On the evening of August 3, 1983, Officer Copeland also entered the licensed premises. While seated at the bar, Officer Copeland met the young man named Ace. Ace came over and asked if he wanted to buy a $5 bag of reefer. He indicated that he did and gave Ace $5, and Ace handed him a plastic baggie of marijuana. On August 9, 1983, Officer Houston entered the licensed premises approximately 10:30 p.m. She took a seat at the bar, ordered a drink, and asked Brenda Brock, the bartender on duty, if Ace was around. Brenda Brock indicated that he was over at the Pac-Man machine but he had left the lounge. Later Ace came in and Brenda Brock said "there he is" to Officer Houston. Ace came over to Officer Houston and said he had some cocaine and asked if she still wanted to buy some. She asked now how much it would cost. Ace indicated he had "nickel" ($5) pieces. Ace stated that it was back at his room and he left and then returned with a small foil pack. Officer Houston gave Ace $5 and he handed her the small foil pack. The small foil pack contained cocaine, a controlled substance under Section 893.03, Florida Statutes. That same evening Officer Houston observed two black males rolling some type of cigarette. She observed a plastic bag containing material similar to marijuana. She observed Brenda Brock obtain some rolling papers from behind the bar and hand them to the two males. On August 10, 1983, Officer Houston entered the licensed premises approximately 10:00 p.m. Ace was not in the lounge when she arrived, but approximately 10:15 p.m. Ace entered the lounge and came over and asked if she wanted to buy some "coke". "Coke" is a slang or street term for cocaine. She said she would like to buy some and he said he would have it later. At approximately 11:30 p.m., Ace came over to Officer Houston and stated that he had coke. Officer Houston told him that she wanted two hits and she then bought two foil packs from Ace. Officer Houston gave Ace a $20 bill but he had no change. She then handed the $20 bill to Brenda Brock who gave her change. She paid $10 for the two foil packs which contained cocaine. That same evening a black male was seated at the bar smoking a marijuana cigarette. Brenda Brock who was the bartender on duty stated "Do I smell dope?" She then looked at the male smoking the marijuana cigarette, but made no effort to stop him. On August 11, 1983, Officer Houston was again on the licensed premises. While seated at the bar, Officer Houston observed a white female smoking what appeared to be a marijuana cigarette Brenda Brock came over to Officer Houston and said that the white female had just gotten some reefer and wanted to know if she wanted some. Officer Houston told her that she did not. Mr. Samuel Williams the president of the Respondent corporation was the manager and owner of the licensed premises. During the time of the charges in this case, Mr. Williams would open the bar in the mornings and remain at the bar all day until the shift change at approximately 7:00 or 7:30 p.m. He was not present in the bar when the various transactions took place and was generally not present in the bar in the evening. A Mr. Raifield had been hired by him to manage the bar at night. However, Mr. Raifield had been terminated shortly before the transactions which are the subject of this case. Brenda Brock had become a full-time bartender on July 26, 1983. Prior to that time she had worked part-time and Mr. Williams had no indication that she used drugs or allowed other people to use drugs or solicit for prostitution on the licensed premises. At no time was Mr. Williams aware that Brenda Brock was permitting drug transactions and solicitations for prostitution to take place in the licensed premises. There is a substantial prostitution problem in the Nebraska Avenue area where the licensed premises is located. Mr. Williams has been active in civic attempts to eliminate the prostitution from this area. Within a year of the charges which are the subject of this case, Mr. Williams' life was threatened by a pimp operating along Nebraska Avenue and the tires and convertible top of his car were slashed. One of the reasons that Mr. Williams was not in the lounge in the evening was because he had been advised by the police that it would be safer for him to not be in the lounge in the evenings. This occurred following the threat on his life. Mr. Williams had no policy of random visits or inspections to the lounge in the evenings. There have been no prior complaints or charges brought against the Respondent's license.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered finding the Respondent in violation of Section 561.29, Florida Statutes, and imposing a civil penalty of 1,000 and suspending Respondent's beverage license for a period of sixty (60) days. DONE and RECOMMENDED this 1st day of September, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Samuel Williams 3513 Rivergrove Drive Tampa, Florida Mr. Howard M. Rasmussen Director of the Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue for determination in this proceeding is whether Respondent committed the acts alleged in the Notice To Show Cause and, if so, what penalty, if any, should be imposed.
Findings Of Fact Respondent, Jose B. Medina ("Medina"), holds alcoholic beverage license number 16-07324, series 2-COP. The licensed premises are known as C.J.'s Pizza and Subs C.J.'s is located at 5150 Coconut Creek Parkway, Margate, Broward County, Florida. In June of 1990, Detective Bukata of the Broward County Sheriffs Office (BSO) conducted an undercover narcotics investigation involving Medina and C.J.'s Pizza and Subs. Detective Bukata negotiated with Medina several times at C.J.'s for the purchase of several kilograms of cocaine. However, a transaction was never consummated due to Medina's requirement that approximately $46,000.00 in cash be paid in advance. After several unsuccessful attempts at negotiations, Detective Bukata referred the open investigation to his partner, Detective Barnhouse, sometime in the spring of 1991. This was due in part to new information being obtained from confidential informants as well as Medina's reputation in the community for dealing in stolen property. On or about May 28, 1991, two "Uzi" semi-automatic pistols were stolen in a residential burglary in Coral Springs, Florida. Subsequently, Detective Barnhouse was notified by a confidential informant that Medina offered to sell these weapons for $250.00 each. On May 30, 1992, Detective Barnhouse purchased the two semi-automatic pistols from Medina at the licensed premises. The serial numbers on the weapons were identical to those which were stolen in the burglary. The weapons were still in their original packaging and had a price tag of $875.00 each. Medina offered to sell Detective Barnhouse more stolen weapons and was instructed not to deface the serial numbers. Medina either knew or should have known that the weapons were stolen. In June of 1991, Detective Barnhouse began conducting negotiations with Medina regarding the purchase of several kilograms of cocaine. Detective Barnhouse met several times with Medina at C.J.'s, had several telephone conversations, and openly displayed several thousands of dollars in an attempt to purchase cocaine. However, as in Detective Bukata's prior dealings with Medina, the negotiations were stalled due to Medina's cash advance requirement. On August 23, 1991, Detective Barnhouse offered to purchase a smaller quantity of cocaine from Medina. Subsequently, Detective Barnhouse met with Medina at the licensed premises and was shown two plastic bags containing approximately sixty grams of cocaine. After the display, Medina returned the cocaine to a storage area in the kitchen. Subsequently, he was arrested by Detectives Bukata and Barnhouse. The substance displayed by and subsequently seized from Medina tested positively as cocaine during field testing. Laboratory tests confirmed that contents of the packages was cocaine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the alcoholic beverage license held by Respondent, Jose B. Medina, d/b/a C.J.'s Pizza and Subs, license number 16-07324, series 2-COP, be revoked. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of February, 1992. DANIEL MANRY 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 25th day of February, 1992.
Findings Of Fact The Respondent, Linda Diane Kinsey, holds Beverage License No. 63-1339, Series 2-CO. Under this license, she operated a business establishment named Fred Said's located at 913 West Robinson Street, Lakeland, Florida. On December 3, 1982, Beverage Officer Randall Robert West, accompanied by Dennis B. Russo of the Polk County Sheriff's Department, initiated an undercover investigation of Fred Said's. They arrived at the licensed premises approximately 2 00 p.m. Fred Tucker was behind the bar and served them two beers. The Respondent, Linda Diane Kinsey, was seated on a stool behind the bar. After a short time, Fred Tucker went out in the back of the bar to work on some construction. While he was out back, Deputy Russo approached Tucker about buying some marijuana. Tucker indicated he had some and they went back into the bar where Tucker retrieved a plastic bag of what he represented to be marijuana. The bag was taken from a drawer behind the bar and when Tucker opened the drawer, Officer West saw other bass of what appeared to be marijuana in the drawer. Tucker handed the bag to Deputy Russo who paid him 825. The bag was later verified by laboratory analysis to contain approximately 9 grams of cannabis, a controlled substance listed in Florida Statute 893.03. (See Petitioner's Exhibit 1). When Fred Tucker took the bag of marijuana out of the drawer, the Respondent, Linda Diane Kinsey, was still seated behind the bar a few feet from the drawer and Fred Tucker. The drawer was in a clear line of sight from where she was seated. On December 14, 1982, Officer West, along with Investigator Russo and Deputy Nicolas H. Del Costello, returned to Fred Said's. When they arrived, the Respondent, Linda Diane Kinsey, was seated behind the bar. Officer West asked Ms. Kinsey if Fred Tucker was around. He then asked "Does Tucker have a bag for sale?" "Bag" is a common term for marijuana. In response to the question about the "bag for sale", Linda Diane Kinsey nodded her head yes and then got up and went to the back of the bar and called Tucker. Tucker came in and walked over to the game area where officer West and his companions were. After asking what they wanted, Tucker took a bag of marijuana out of his docket and sold it to Officer West. The bag was later confirmed by laboratory analysis to contain approximately 12 grams of cannabis, a controlled substance listed in Chapter 893.03, Florida Statutes. (See Petitioner's Exhibit 2). When the transfer of marijuana took place on December 14, 1982, on the licensed premises, the Respondent, Linda Diane Kinsey, was seated behind the bar approximately 30 feet away from where the transfer took place. On December 16, 1982, Officer West, accompanied by Investigator Russo, returned to Fred Said's with a search warrant. In the course of the search of the licensed premises, two plastic bags containing seeds were found. These bags were in the drawer behind the bar from which Fred Tucker had taken the bag of marijuana on December 3, 1982. The bags of seeds were later verified by laboratory analysis to contain 25 grams and 4.6 grams of cannabis, a controlled substance listed in Florida Statute 893.03. During December, 1982, Mr. Fred Tucker was employed as manager of Fred Said's. On December 3, 1982, he was tending bar and was observed signing an invoice for a beer delivery that occurred while Officer West and Investigator Russo were present. The Respondent testified that she was not aware of Fred Tucker's drug activity. However, she and Mr. Tucker were living together prior to December 16, 1982, and they scent a lot of time together. She was also present in the bar at the time of the purchases on December 3 and December 14. She admitted on cross examination that she was not sure he was dealing but she never asked. She did not recall telling Officer West on December 14 that Fred Tucker had a bag for sale but did not specifically deny such a conversation. She also testified that even while sitting behind the bar, she was not aware of what was going on in the licensed premises. There was no evidence that she, as licensee, had taken any steps to ensure that the premises were properly supervised and not being used for illegal purposes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's alcoholic beverage license he revoked. DONE and ENTERED this 29th day of April, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1983. COPIES FURNISHED: Daniel J. Bosanko, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Ms. Linda Diane Kinsey 3333 Baird Street Lakeland, Florida 33805
