The Issue The issues for determination in this proceeding are whether Respondent, KaShamba Miller-Anderson, violated section 112.3145(8)(c), Florida Statutes (2016), by willfully failing to file a 2015 CE Form 1, “Statement of Financial Interests”; and, if so, what penalty should be imposed.
Findings Of Fact Respondent is currently a member of the Riviera Beach City Council. As a member of the Riviera Beach City Council, Respondent served as a “local officer” as defined in section 112.3145(1)(a), throughout the year 2015. Respondent was aware that she was required to file a CE Form 1 every year, including for the year 2015. Financial disclosures are filed in order to allow the public to monitor public officials and employees for any conflicts of interest that may arise. The requirement that financial disclosures be filed is intended to deter corruption and increase the public’s confidence in government. In 2016, Respondent received e-mails at the address kmiller@rivierabch.com. She received regular mail at the address 430 West 28th Street, Riviera Beach, Florida 33404. The CE Form 1, “Statement of Financial Interests,” for calendar year 2015 was required to be filed on or before July 1, 2016. There is a grace period for filing the form that expired on September 1, 2016. After the expiration of the grace period, an automatic fine of $25 per day was imposed for each day the form is late, up to a maximum fine of $1,500. The maximum fine accrued on October 31, 2016. The Palm Beach County Supervisor of Elections (Palm Beach SOE) office sent Respondent the original blank 2015 financial disclosure form, along with the requirements for filing the form, before June 1, 2016. She was instructed to file her completed form no later than July 1, 2016. Respondent failed to file her 2015 CE Form 1 by either July 1, 2016, or September 1, 2016. Respondent received notice from the Commission regarding her failure to file her 2015 CE Form 1. On July 31, 2016, the Palm Beach SOE sent a delinquency memorandum to Respondent at 430 West 28th Street, Riviera Beach, Florida 33404 by certified mail. The mail was unclaimed. The July 31, 2016, memorandum included the following statement: Pursuant to State law, please be advised that although you are delinquent in filing Form 1, a grace period is in effect until September 1, 2016. If your form is not received by September 1, 2016, we will be required by law to notify the Commission on Ethics of the delinquency. A fine of $25 for each day late will be imposed, up to the maximum penalty of $1500. In addition, pursuant to enacted legislation, the Commission on Ethics must initiate investigations of delinquent filers in certain circumstances. This can result in you being removed from your public office or employment. Respondent took no action to file her form by September 1, 2016. If she had done so, it would have been considered timely. Commission staff sent Respondent a courtesy letter on September 7, 2016, and advised her that she was accruing a fine of $25 per day for failure to file her 2015 CE Form 1. The Commission also e-mailed Respondent on September 20, 2016, using the e-mail address kmiller@rivierabch.com. Respondent accrued the maximum fine of $1,500 as of October 31, 2016, as authorized by section 112.3145(7)(f), for failing to file her CE Form 1 for the year 2015. On November 4, 2016, the Commission again e-mailed Respondent at the same e-mail address, advising her that the maximum fine had accrued and she still needed to file her 2015 CE Form 1. The November 4, 2016, e-mail attached a blank 2015 CE Form 1 and a form to appeal her fine. Respondent did not avail herself of the opportunity to appeal the fine that had accrued. On February 21, 2017, the Commission sent Respondent a Notice of Assessment of Automatic Fine by certified mail, using the 430 West 28th Street address. Respondent acknowledged receipt of the February 2017 notice. This e-mail also provided the appeal process for contesting the maximum fine. Respondent did not pay the fine at that time because she did not have the funds to do so. She believed, in error, that she now could not file the 2015 CE Form 1 until she paid the fine. Her belief, however misplaced, was sincere. On June 16, 2017, the Commission mailed Respondent a Notification of Issuance of Default Final Order at the 430 West 28th Street address. The Notice was not returned to the Commission as undeliverable. On June 22, 2017, Respondent paid the $1,500 fine. On June 28, 2017, Respondent filed her CE Form 1 for calendar year 2015. Respondent did not have a particularly compelling reason for not timely filing her 2015 CE Form 1. Her position on the city council is a part-time position, for which she is not assigned an assistant. She admitted at hearing that the notice and the form simply got lost on her desk, and she did not make it a priority. However, Respondent claims that while filing her 2015 CE Form 1 was not the priority it should have been, she never intended not to file the form, and she never indicated to anyone that she would not do so. Respondent filed her 2015 CE Form 1 and paid the fine prior to the finding of probable cause in this case. There are some differences between the financial disclosure Respondent filed when she initially ran for office and the one filed for 2015. Those differences however, are not so great as to support an inference or finding that she was attempting to hide something by not filing timely. The term for which Respondent was elected expired on March 21, 2018. She was re-elected for another term which began March 21, 2018.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order and public report finding that no violation of section 112.3145(8)(c) has been demonstrated. DONE AND ENTERED this 7th day of June, 2018, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 2018. COPIES FURNISHED: Millie Wells Fulford, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Melody A. Hadley, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Ronald G. Meyer, Esquire Meyer, Brooks, Demma and Blohm, P.A. 131 North Gadsden Street (32301) Post Office Box 1547 Tallahassee, Florida 32302 (eServed) C. Christopher Anderson, III, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Virlindia Doss, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed)
Findings Of Fact The Petitioner, Department of State, Division of Licensing, licenses and regulates private investigators in Florida. The Respondent, Edward W. Salvato, is licensed in Florida as a Class C private investigator. On August 31, 1993, while working in his capacity as a private investigator, the Respondent was monitoring the movements of a subject who entered Sea World in Orlando, Florida. As he entered Sea World, the Respondent hurriedly "flashed" his Class C private investigator license credentials and told the admissions gate attendant that he was a "state investigator" who was following a subject into the park. He told the attendant that, under those circumstances, he normally does not have to purchase a ticket. The Respondent's gestures and words gave the gate attendant the impression that the Respondent was a law enforcement investigator with official status. The gate attendant was new on the job and was unsure how to handle the situation. She referred the Respondent to a supervisor. The Respondent repeated essentially the same gestures and words to the supervisor. Understanding from the Respondent's gestures and words that the Respondent was a law enforcement investigator with official status, the supervisor authorized the Respondent to enter the park without having to purchase a ticket. Before he left the park, the Respondent telephoned his employer and reported on his activities. The employer advised the Respondent that it was against the employer's policies for the Respondent to seek free admission to Sea World under the conditions described by the Respondent. The employer instructed the Respondent to purchase a ticket and get a receipt for reimbursement by the Respondent's client. Before leaving Sea World, the Respondent proceeded to the "Special Services" window to purchase a ticket and get a receipt. He also told "Special Services" that he was a "state investigator." Subsequent misunderstandings resulted in the Respondent being arrested by Sea World security guards. When a law enforcement officer responded to a call from Sea World, the Respondent also told the officer that he was a "state investigator." The officer cautioned him that his use of the term "state investigator" to describe himself could lead one to believe he was a law enforcement officer. He advised the Respondent to stop using the term to describe himself to members of the public. Evenually, the Respondent's admission to the park was paid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of State, Division of Licensing, enter a final order finding the Respondent, Edward W. Salvato, guilty of violating Section 493.6118(1)(i), Fla. Stat. (1993), and fining him $500. RECOMMENDED this 29th day of June, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1994. COPIES FURNISHED: Richard R. Whidden, Jr., Esquire Assistant General Counsel Department of State The Capitol, MS #4 Tallahassee, Florida 32399-0250 Edward W. Salvato, pro se 1051 South Hiawassee Road, #2121 Orlando, Florida 32835 Hon. Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, Esquire General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue Should the Criminal Justice Standards and Training Commission (the Commission) impose discipline on Respondent in association with his law enforcement certificate?
Findings Of Fact The Commission has the power to certify and revoke the certification of law enforcement officers. § 943.12(3), Fla. Stat. (2006). Respondent is a certified law enforcement officer. At times relevant to the inquiry he served in that capacity in New Smyrna Beach, Florida. Based upon the record, it is inferred that his employment was in association with what has been identified as the Volusia County Beach Patrol (Beach Patrol). That organization was constituted of law enforcement officers and other employees, to include an ocean rescue life guard and EMT. The latter employment position was referred to in the organization as a Beach Safety Specialist. The accusations against Respondent in this case involve conduct seen by and directed to two females, Captain Tamara Marris, a law enforcement officer and Beach Patrol Specialist Christine Dobmeier. Both worked for the Beach Patrol at times relevant to the inquiry. The incidents that form the basis for this complaint took place in a building (the station) utilized by the Beach Patrol. The basic design of the building is set out in Petitioner's Exhibit numbered one, admitted. The drawing or diagram is not to scale. It does reflect the location of a locker room, the door to that locker room, a bathroom and an office in the building. It also shows the location of Respondent's locker within the locker room. The door into the locker room is kept shut. It has a combination lock on it that must be unlocked to gain access to the locker room. In the summer 2004, Respondent and Captain Marris finished their duty shift at the beach and returned to the station. They were the only employees in the station at the time. Respondent was in the locker room, which was not intended to be a dressing room. The bathroom is the place where people change their clothes from the duty clothing into other attire. Respondent was facing his locker wearing only a towel when Captain Marris entered the locker room. While in the locker room Respondent's genitals were exposed to her view. On this first occasion Captain Marris thought that the exposure was just an accident. On a second occasion when the two officers, Captain Marris and Respondent were closing the shift, Captain Marris walked into the locker room and Respondent dropped the towel he was wearing exposing himself, that is exposing his genitals. The second incident took place in approximately August 2004. There was a third incident at the station between Respondent and Captain Marris. This time before Captain Marris entered the locker room, she said some words to the effect, "Hey, are you decent," to which Respondent replied, "Yeah, come on in." When she entered the room, Respondent dropped his towel to pull up his shorts and she saw his genitals again. In her mind, with the third incident having transpired, she concluded that Respondent's actions were deliberate. As a consequence beyond that point, when Captain Marris needed to put her work gear away in the locker room, she would wait until Respondent left the station. On the third occasion which occurred sometime around September 2004, Respondent and Captain Marris were alone as they had been on the prior two occasions. When Captain Marris determined in her mind that the Respondent was acting intentionally in exposing his genitals, she considered this to be vulgar or indecent. She did not believe that anything in the conduct was legitimate. Certainly by the third occasion, if not before, Respondent's conduct could be seen as intentional and without legitimate purpose. Christine Dobmeier was subject to Respondent's inappropriate conduct. She was a full-time ocean life guard and EMT in the position Beach Safety Specialist. She had similar experiences with Respondent to those between Respondent and Captain Marris. As Ms. Dobmeier recalls, ordinarily the male personnel would wear "life guard baggies" at work. At times the male employees would wrap a towel around the life guard baggies. This reference is understood to mean some form of pants or shorts worn by the male personnel which they would cover with a towel. In July or August 2004 around closing time, Ms. Dobmeier entered the locker room where Respondent was located. He was wearing a towel when she entered the room. At that moment his towel fell exposing his genitals. She stated, "I am so sorry" and walked out. On that occasion the door to the locker room had been open when she entered. A couple of weeks later Ms. Dobmeier entered the locker room. This time the locker room door had been closed. She did not bother to knock because most people in her experience would change their clothes in the bathroom. She pushed the lock mechanism which made a loud noise. She entered the room and saw Respondent, who was wearing only a T-shirt. Respondent was facing his locker. When Ms. Dobmeier entered the room he turned toward her, exposing his genitals. Ms. Dobmeier apologized for seeing Respondent in his undressed state and immediately left the room. There was a third incident involving Respondent and Ms. Dobmeier, a few weeks after the second incident. This time Ms. Dobmeier knocked on the locker room door and Respondent told her to enter the room. When she did he was standing naked and she walked right back out. Later, Ms. Dobmeier asked Respondent about the third incident and said, "Why did you tell me to come in," and Respondent in reply, as Ms. Dobmeier explains, "Just kind of laughed." After the third incident Ms. Dobmeier felt that the Respondent intended the conduct in exposing himself. There was a fourth incident in the locker room. This time Ms. Dobmeier knocked on the locker room door and did not hear anything in response. She activated the locking mechanism and Respondent was found in the room with his penis erect facing her. He asked Ms. Dobmeier whether he, as Ms. Dobmeier states, indicating Respondent, "Was as large as my boyfriend." This is understood to mean a comparison between Respondent and Ms. Dobmeier's boyfriend as to their genitals. No other persons were in the station when this encounter took place. Ms. Dobmeier considered the Respondent's exposure of his genitals as vulgar. As a result of the last encounter Ms. Dobmeier decided not to enter the locker room while Respondent was at the station. At the beginning of 2005 there was another incident. This time Respondent grabbed Ms. Dobmeier's breast after a swim drill. The incident took place in the locker room with the door open and 10 to 12 lifeguards in the main area outside of the room. Only Respondent and Ms. Dobmeier were in the locker room when he performed this act. His action was not invited or acquiesced to. Ms. Dobmeier responded by telling Respondent, "Don't ever touch me again" and walked away.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding violations of the statutes and rule referred to and revoking Respondent's law enforcement certificate. DONE AND ENTERED this 17th day of October, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2006.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. Facts admitted by all parties The water quality standards contained in Rule 17-3.111, Florida Administrative Code will not be violated by this project. There are no aquatic macrophytes located in the area of the proposed project. The proposed project is located within 500 feet of the incorporated municipality of Horseshoe Beach, Florida. The proposed project is located within Class II waters of the State not approved for shellfish harvesting. The project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The proposed project will be of a permanent nature. The project will not adversely affect or will not enhance significant historical or acheological resources under the provisions of Section 267.061, Florida Statutes. The rest of the findings The Applicant, Dixie County, applied for a dredge and fill permit to construct a dock which would expand the existing public dock at Horseshoe Beach. In accordance with the revised plans dated October 23, 1986, the proposed facility would consist of a pier 6 feet wide and 120 feet long designed to accommodate six boat slips, each 30 feet wide and 40 feet long. The boundaries of the boat slips will be demarcated by pilings set 10 feet apart. Four of the boat slips would be primarily for the use of commercial fishing boats and commercial shrimping boats. The other two boat slips (the two slips closest to the land) would be reserved for the exclusive use of recreational and other small vessels. By adding a catwalk 3 or 4 feet wide down the middle of the two slips reserved for recreational vessels, the usefulness of those slips to recreational vessels would be greatly enhanced and the narrowness of the resulting slips would preclude their use by large vessels. Adding the two catwalks would be a minor addition to the proposed project which would greatly enhance the usefulness of the project and at the same time avoid the possibility that large vessels in the two slips closest to the land would impede ingress and egress at the nearby boat lift, boat fueling facility, and boat ramp. Adding a reasonable number of permanent trash or garbage containers would also enhance the usefulness of the proposed project and minimize the possibility of improper disposal of trash and garbage which is generated by the normal use of a dock by fishermen and boaters. The proposed project site is located in the Gulf of Mexico at Horseshoe Beach, Florida, and would extend into the waters of the Gulf, which is a tidally influenced water body adjacent to Dixie County, Florida. The water along the shoreline of the area is shallow for a considerable distance waterward, except where basins and channels have been dredged. The Horseshoe Beach area is relatively unpolluted. The existing public dock at Horseshoe Beach is used primarily by recreational vessels, but there is also extensive commercial fishing and Shrimping boat activity in the area. The project is located at the mouth of a canal with direct access to the Gulf. Several commercial fishhouses operate from the canal bank, which generates extensive commercial boat traffic past the proposed project site. Large numbers of commercial shrimp boats presently dock along the canal that ends near the proposed project site. The proposed project requires no dredging. The only filling required by the proposed project is the placement of pilings into the bottom of the Gulf of Mexico. Even though the plans do not specify whether concrete or wooden pilings will be used, this lack of specificity in the plans is irrelevant. Regardless of what types of pilings are used on this project, the filling activity will not violate the water quality criteria contained in Rule 17- 3.051(1), Florida Administrative Code. The placement of the pilings will not adversely affect the public health, safety, and welfare. Further, the proposed project will not adversely affect any property interests of the Petitioners within the scope of Chapter 403, Florida Statutes. The Gulf bottom in the area of the proposed project has already been disturbed. The presently existing suspension of particulate material in the water column, a natural occurrence in the area of the project, results in low visibility which means that seagrass beds and other marine vegetation, which provide shelter and detrital deposits for fish and other marine resources, will not grow. Coast Guard regulations prohibit commercial fishing vessels from depositing materials into the water within three miles of the coast line. Commercial fishing vessels must prominently display a sticker reciting that regulation and it is the practice of commercial fishing vessels operating in the vicinity of Horseshoe Beach to comply with this Coast Guard no discharge requirement by cleaning nets and scrubbing decks outside the three mile limit. It is not the practice of Commercial fishing vessels to deliberately discharge diesel fuel, fish parts or other material into the water while docked. Further, the limited number of commercial fishing vessels which could dock at the proposed facility at the same time cannot reasonably be expected to create discharges in amounts creating a nuisance, posing any danger to the public health safety or welfare, or violating the water quality criteria contained in Rule 17-3.051(1), Florida Statutes. Although small amounts of diesel fuel can become mixed with bilge water and be discharged by automatic bilge pumps while commercial fishing vessels are docked, there is no evidence that this would be in amounts Sufficient to create a nuisance or violate water quality criteria. To the contrary, notwithstanding a large amount of commercial boat traffic past the proposed site and notwithstanding the fact that large numbers of shrimp boats dock up the canal from the proposed site, the water in the area of the proposed site has remained relatively unpolluted. The proposed project will not affect the normal wind and wave action in the area of the proposed project. Such wind and wave action presently results in free exchange between the waters of the open Gulf and the waters near the shore. This free exchange of waters means that any pollutant discharges in the area of the proposed project will be diluted and rapidly dispersed into the Gulf of Mexico. There will be no measurable difference in the wind and wave action, or in the water exchange, after the proposed project is built. No harmful shoaling or erosion is expected to result from construction of the proposed project. Any docking structure extending out into the Gulf of Mexico will obviously have some effect on navigation in the area of the dock, but there is no evidence that the proposed dock will present a hazard to navigation or any significant interference with customary navigation patterns. The distance between the nearest channel marker and the waterward end of the proposed project is more than 200 feet. The angle of the proposed dock and its Spatial relation to the main Horseshoe Beach turning basin cause no impediment to navigation. The placement of Coast Guard Safety lights on the dock would minimize any potential for impeding navigation or posing a danger to the public health or safety during hours of darkness.
Recommendation Based on all of the foregoing, I recommend that the Department of Environmental Regulation issue a Final Order in this case granting the permit applied for by Dixie County. It is also recommended that the permit be made subject to the following additional conditions: That one or more Coast Guard safety lights be placed on the proposed expansion to the dock; That catwalks be added down the middle of the two most landward of the proposed boat slips; and That a reasonable number of trash or garbage receptacles be permanently located on the proposed expansion to the dock to minimize the possibility of trash and garbage being thrown overboard. DONE AND ENTERED this 30th day of October, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1448 The following are my specific rulings on all of the proposed findings of fact submitted by all of the parties. The paragraph numbers referred to below are references to the paragraph numbers in the parties' respective proposed recommended orders. Ruling on findings proposed by the Petitioners: Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Accepted. Paragraph 4: First sentence is rejected as appearing to be more in the nature of an introduction to a discussion of legal issues than a proposed finding of fact. Second and third sentences are rejected as repetitious Paragraph 5: Entire paragraph rejected as unnecessary speculative generalizations in light of the other evidence in this case. Paragraph 6: Entire paragraph rejected as unnecessary speculative generalizations in light of the other evidence in this case. Paragraph 7: Rejected as contrary to the greater weight of the evidence. Paragraph 8: Entire paragraph is rejected as appearing to be more in the nature of an introduction to a discussion of legal issues than proposed findings of fact. Paragraph 9: Entire paragraph rejected as contrary to the greater weight of the evidence; construction of the dock may be expected to bring about some changes in the nature of the boat traffic in the immediate area, but nothing of the nature or magnitude suggested by these proposed findings. Paragraph 10: Rejected as contrary to the greater weight of the evidence. Paragraph 11: First sentence is rejected as contrary to the greater weight of the evidence. Second sentence is accepted in part and rejected in part. Rejected portion is irrelevant. Third sentence is rejected as irrelevant. Fourth Sentence is accepted. Fifth sentence is rejected as contrary to the greater weight of the evidence and as repetitious Sixth sentence is rejected as contrary to the greater weight of the evidence. Paragraph 12: Entire paragraph rejected as contrary to the greater weight of the evidence. Rulings on findings Proposed by the Respondent: Paragraph 1: Accepted. Paragraph 2: Accepted in substance. Paragraph 3: First two sentences accepted in substance. Last sentence rejected as irrelevant. Paragraph 4: Accepted. Paragraph 5: Accepted. Paragraph 6: Accepted. Paragraph 7: Rejected as unnecessary recitation of opposing party's contentions and not proposed finding of fact. Paragraph 8: Accepted in substance. Paragraph 9: Accepted in substance. Paragraph 10: Accepted. Paragraph 11: Accepted in substance. Paragraph 12: Accepted. Paragraph 13: First sentence accepted in substance. Second sentence accepted in part and rejected in part; rejected portion concerns riparian rights, which are irrelevant to whether this permit should be issued. Paragraph 14: Entire paragraph rejected as irrelevant. Paragraph 15: Accepted in substance. Paragraph 16: Accepted. Paragraph 17: Accepted in substance. COPIES FURNISHED: Frederick M. Bryant, Esquire Moore, Williams & Bryant, P.A. Post Office Box 1169 Tallahassee, Florida 32302 J. Doyle Thomas, Esquire County Attorney Post Office Box 339 Cross City, Florida 32628 Ann Cowles-Fewox, Legal Intern Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Karen Brodeen, Esquire 2600 Blair Stone Road Tallahassee, Florida 32301 Dale Twachtmann, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Respondent, Glen Thurlow (Thurlow), was certified by the Criminal Justice Standards and Training Commission (Commission) on June 15, 1982, and was issued Certificate Number 02-3128. Thurlow has been employed by the West Palm Beach Police Department (WPBPD) for the last eight years. On the evening of November 24, 1990, Thurlow was assigned as a police officer to the WPBPD Criminal Apprehension Team (CAT), which is a street crimes unit. That evening Thurlow was partnered for the first time with Lee Rollins (Rollins), a fellow police officer on CAT. Thurlow and Rollins were assigned as plain clothes officers in an unmarked police vehicle, an old, gold Cadillac. Thurlow had on a black T-shirt, combat pants, black combat boots, duty leather and underneath his shirt a bullet-proof vest with a trauma plate. Rollins was dressed in a black T-shirt and jeans. He was not wearing duty leather, but was wearing a utility belt fastened with velcro. Both officers wore their police badges on a chain underneath their shirts. Around 10:30 p.m., near the end of their duty shift, they were returning to the police station. Thurlow was driving south on South Dixie Highway headed toward the Belvedere Road intersection. As they approached the intersection, the officers saw a man, later identified as Robert Jewett (Jewett), dressed in cut-off jeans, a T-shirt, and a cap standing near the middle of the south bound lanes on South Dixie Highway past the Belvedere Road intersection, near the Palm Beach Post Building. The officers continued through the Belvedere Road intersection toward Jewett. As they approached Jewett, he stuck out his left hand in a "hitchhiking gesture." Thurlow pulled over to the side of the road near the parking lot of the Palm Beach Post Building. When Thurlow pulled over, Jewett ran up to the car and got in the back seat. Rollins showed Jewett his police badge, told Jewett that he was a police officer, and requested Jewett to step outside the car. Jewett complied. Rollins exited the Cadillac and Thurlow remained inside. Rollins asked Jewett for his driver's license, which Jewett gave him. Rollins radioed the police dispatcher with the information on the driver's license in order to determine whether there were any outstanding warrants on Jewett. Rollins advised Jewett that he was going to charge him with hitchhiking, but that if there were no warrants against Jewett that he would be given a Notice to Appear and released at the scene, rather than being taken down to the police station. Rollins told Jewett to place his hands on top of the car and spread his legs so that Rollins could search him for weapons. Jewett complied. Thurlow, still sitting in the driver's seat, was monitoring the conversation between Rollins and Jewett. Rollins began the weapons search at Jewett's shoulder and continued down to his left pocket. Finding nothing, he started to search the right pocket. At that time Jewett brought his right arm down from the top of the car. Rollins caught his arm, put it back on top of the car, and told him to keep his hands on the top of the car. As Rollins proceeded to search Jewett's right pocket, Jewett brought his right arm down and stuck it in his pocket. At the same time he came around with his left elbow and hit Rollins on the left side of his chest, knocking him around. Rollins pulled Jewett's hand out of his pocket and they began to struggle. Rollins pulled his flashlight from his back pocket and tried to hit Jewett on his left forearm. Jewett tried to kick Rollins in the groin and Rollins grabbed Jewett's T-shirt. Their feet tangled, the men went down and Rollins fell back toward the car, hitting his head on the back door. Rollins was stunned from the blow to his head. Thurlow felt the Cadillac rock as if someone had bumped against the car. Rollins called to Thurlow to give him some assistance. Thurlow exited the car and came around to the passenger side, where he saw Rollins sitting on the ground with his back to the car, and Jewett straddling and leaning over Rollins with his arms raised as if he were preparing to hit Rollins. Thurlow ran up behind Jewett and put his arm below Jewett's Adam's apple in Jewett's upper chest area in order to pull Jewett back from Rollins. Jewett began to fight and had Thurlow on the balls of his feet. They went towards the front of the car. Jewett went down on his knees with Thurlow's arm still around him. Jewett stood up with Thurlow on his back and they both went backwards, and as a result Thurlow's arm slipped up towards Jewett's chin. Rollins, seeing Jewett put his right hand in his pocket, ran over to Jewett and tried to grab his right hand. The three men fell to the ground and rolled backwards landing in a grassy area. Thurlow still had his arm around Jewett's neck. Thurlow was on the bottom, Jewett in the middle and Rollins on top. Thurlow released his hold on Jewett and slipped out from under Jewett. Thurlow was on Jewett's left side and Rollins was sitting to Jewett's right, about, waist-high facing away from Jewett. Jewett was grabbing at his right pocket. Rollins saw a metal object in the area of Jewett's right pocket. Rollins took his flashlight and swiped at the metal object, sending both the flashlight and the metal object flying off in an easterly direction. Rollins told Jewett to quit struggling. Jewett grabbed the butt of Rollins' gun. Rollins hollered to Thurlow that Jewett had his gun. Rollins hit Jewett in the groin three to four times. Thurlow got up and threw a punch at Jewett connecting at Jewett's left eye. At that point Jewett quit fighting. Thurlow held Jewett's arm over the curb and told Rollins to handcuff Jewett. Having lost his handcuffs in the struggle, Rollins used Thurlow's handcuffs and cuffed Jewett's hands behind his back. All three men were breathing hard and sweating. Rollins told Thurlow that he had lost his flashlight and that something had been thrown out of Jewett's hand during the struggle. Thurlow left Rollins with Jewett and went to look for the lost items. At the time Thurlow left Rollins and Jewett, Jewett was breathing. During the struggle, Rollins' handcuffs, radio, and ammo pouch came off his belt. Rollins found his radio and called the dispatcher at 22:35:52 hours to report the incident. He then went to look for the rest of his missing equipment and was gone approximately one to one and a half minutes. Rollins returned to Jewett and started to pick him up; however Jewett was limp. Rollins put him back on the ground and tried to take his pulse. Because Rollins was still in an excited state from the fight, he could not tell whether he was getting a pulse from Jewett. He tried to take Jewett's pulse again but still could not determine whether he was getting a pulse. Thurlow, having found the flashlight in the grass and an open pocketknife on the sidewalk, walked back over to Rollins and Jewett. Thurlow asked Rollins if something was wrong with Jewett, and Rollins replied that Jewett did not look well. At 22:39:54 hours Thurlow radioed for the paramedics. At 22:43:35 hours, Thurlow again radioed for the paramedics to hurry and get to the scene. Rollins again checked for a pulse but could not determine whether there was a pulse. A few minutes later firefighters, responding to a medical call, arrived on the scene. One of the firefighters checked Jewett's pulse and breathing and determined that Jewett was not breathing and did not have a pulse. Jewett was pale with some discoloration and swelling about the face. Within several seconds, the rescue team arrived. The rescue team got Jewett uncuffed and began to administer advanced life support. Jewett was transported to a hospital where he was pronounced dead. Both Thurlow and Rollins were trained to administer CPR; however the unmarked police vehicle did not contain rubber gloves or a bag which are used in administering CPR to protect the person administering CPR from diseases such as AIDS which could be transmitted by bodily fluids. Additionally, Jewett appeared to be breathing, which would mean that he was not a candidate for CPR. At the time of the incident, Joseph Huffman and his girlfriend were traveling north on South Dixie Highway in a van. The van had windows on the rear doors and on the passenger and driver doors. As Mr. Huffman approached the Palm Beach Post parking lot, he saw two men scuffling on the hood of the gold Cadillac. He began to slow down to watch the fracas. He observed the fight for approximately 20 to 30 seconds, during which time he looked over to the El Cid Bar to see if anyone was watching. His girlfriend observed that Huffman tried to look at the fight through his side mirror but couldn't see so he stuck his head out the driver's window and glanced back once or twice, looking forward to check the approaching traffic. Huffman recalled seeing a third man strike Jewett at least 20 times in the groin with a flashlight; however the medical evidence does not support Mr. Huffman's assertion. Having judged the credibility of the witness, I find that Mr. Huffman's recollection is not credible. An autopsy was performed on Jewett by the Palm Beach County Medical Examiner, Dr. James Benz. The autopsy revealed that Jewett had a black eye, markings on the forehead and neck area, minor bruises and abrasions on the right forearm, abrasions on the knees, and abrasions on the right wrist. Jewett suffered fractured ribs and bruising of the left lung underlying the rib fractures. There was a "blow out" of the heart. There was hemorrhaging underneath the Adam's apple and an irregular fracture in the lamana below the Adam's apple. The hyoid bone, which sits above the voice box, was fractured. There were no injuries to the upper thighs, penis or lower abdomen. There was a mild bruise in the testicle area and hemorrhaging in the left testicle. The injuries to the testicles are not consistent with Jewett's being hit between 10 to 20 times with a flashlight in the groin. The "blow out" of Jewett's heart is called a cardiac tamponade. Most probably as a result of the impact to Jewett's chest when he, Rollins, and Thurlow fell to the ground, a thin area of Jewett's heart blew out forming a small hole in Jewett's heart. The heart pumped blood through the small hole into the pericardial sac. As a result of the blood flowing into the pericardial sac, the heart could not expand and death occurred. The cardiac tamponade did not occur after Jewett died nor did it occur in a peri-mortem, near-death state. The cardiac tamponade did occur while Jewett was alive and death occurred some time later. Based on the testimony of Dr. Charles Petty, an expert in forensic pathology, I find that the injuries to Jewett's neck occurred as a result of forceful application of force to the neck, which is consistent with a fall across a rounded object such as a forearm rather than police carotid holds and choke downs. The Use of Force Matrix from the Florida Department of Law Enforcement is the state standard concerning the use of force by law enforcement officers. The matrix lists the resistance levels of a subject and indicates the appropriate level of force to be used by an officer in responding to the various levels of resistance. An aggressive physical resistance is defined as overt, hostile attacking movements which may cause injury, but are not likely to cause death or great bodily harm to the officer or others. Aggravated physical resistance is when the subject makes overt, hostile, attacking movements with or without a weapon, with the intent and apparent ability to cause death or great bodily harm to the officer or others. The resistance level of Jewett when he was straddled and leaning over Rollins as Rollins was up against the fender of the Cadillac and Jewett's actions at the front of the car with Thurlow constitutes aggressive physical resistance. The matrix guidelines indicate that an officer may use all levels of force with the exception of deadly force in dealing with aggressive physical resistance. When Thurlow grabbed Jewett from behind to remove Jewett from his position of standing over Rollins, Thurlow was not using deadly force. His arm was not under Jewett's chin but was lower, nearer the upper chest area. The resistance level of Jewett when he was trying to get Rollins' gun constitutes aggravated physical resistance. The matrix guidelines for force to counter aggravated physical resistance include among other things, counter moves, incapacitation, and deadly force. Deadly force includes techniques that may result in imminent or serious injury, unconsciousness or permanent disfigurement, such as impact weapon strikes to the head or use of firearms. Thus, Thurlow's punch to Jewett's face was within the matrix guidelines.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint against Respondent, Glen H. Thurlow. DONE AND ENTERED this 27th day of October, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2593 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact Paragraphs 1-3: Accepted in substance. Paragraph 4: Rejected as subordinate to the facts actually found. Paragraphs 5-8: Accepted in substance. Paragraph 9: The first sentence is accepted in substance with the exception of the word "allegedly" which is rejected. The second sentence is accepted in substance. Paragraphs 10-12: Accepted in substance. Paragraph 13: The first two sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. Paragraph 14: Accepted in substance. Paragraph 15: Accepted in substance. Paragraph 16: The first sentence is accepted in substance. The second sentence is accepted in substance; however it should be noted that it appeared to Thurlow that Jewett was about to strike Rollins. Paragraph 17: The first and second sentences are rejected as not supported by the greater weight of the evidence. The evidence established that Thurlow jumped across Jewett's back, placing his arm across Jewett below Jewett's Adam's apple. The second sentence is accepted in substance. Paragraph 18: Accepted that Thurlow and Jewett continued to struggle. Rejected that Thurlow continued to maintain a choke hold on Jewett. The greater weight of the evidence established that Thurlow's arm did not slip up under Jewett's chin until Jewett and Thurlow began to fall backward. Paragraph 19: Rejected as not supported by the greater weight of the evidence. Paragraph 20: Accepted in substance with the exception of "continued to hold Mr. Jewett in a choke hold." The evidence established that Thurlow's did not have a choke hold on Jewett until they fell backwards and that the choke hold was not an intentional action but rather resulted from the struggle between Jewett and Thurlow and Rollins running into them. Paragraph 21-22: Accepted in substance. Paragraphs 23: Accepted in substance except to the extent that such finding implies that Thurlow had a choke hold on Jewett at the time that Huffman saw them. Paragraphs 24-26: Having judged the credibility of the witnesses, I find that Huffman's testimony concerning the repeated striking of Jewett in his groin not to be credible, particularly considering the medical evidence and the fact that Huffman was driving down the street while he was trying to look at the fight and keep track of traffic both in front of and behind him. Paragraph 27: Rejected as not supported by the greater weight of the evidence. Paragraph 28: Accepted in substance. Paragraph 29: Rejected as not supported by the greater weight of the evidence. Paragraph 30: Rejected to the extent that it implies that Thurlow had a choke hold on Jewett the entire time that they were struggling. The evidence established that Thurlow did not start out with a choke hold but that during the struggle, Thurlow's arm slipped underneath Jewett's chin. Paragraphs 31-35: Accepted in substance. Paragraph 36: Accepted in substance to the extent that at one point in time while Jewett was supine on the ground his head was turned toward Thurlow and he grabbed Thurlow's shirt but rejected to the extent that it implies that during the entire time Jewett was on the ground he was looking at Thurlow and grabbing Thurlow's shirt. Paragraph 37: Accepted in substance. Paragraph 38: Accepted in substance to the extent that Thurlow did hear Rollins shout that Jewett had grabbed his gun and to the extent that Thurlow did not see Jewett actually grab the gun. Rejected to the extent that the word "claiming" implies that Rollins may not have shouted to Thurlow that Jewett had his gun and rejected to the extent that the last part of the sentence could be construed to mean that Thurlow did not see Jewett's right arm reach in the direction of Rollins' holster. Paragraphs 39-40: Accepted in substance. Paragraph 41: Accepted in substance with the exception of the word "allegedly." Paragraphs 42-45: Accepted in substance. Paragraph 46: The portion relating to rendering medical assistance is accepted in substance. The portion relating to never checking on the well being of Jewett is rejected as not supported by the evidence. Thurlow did inquire of Rollins concerning the condition of Thurlow before he called for the paramedics. Paragraph 47: Accepted in substance. Paragraph 48: Accepted in substance to the extent that Rollins did not render any first aid but rejected to the extent that Thurlow always had an unobscured view of Jewett. The evidence established that Thurlow was looking for the knife and the flashlight during a portion of the time . Paragraph 49: Rejected as constituting a conclusion of law. Paragraphs 50-51: Rejected as subordinate to the facts actually found. Paragraphs 52-53: Accepted in substance. Paragraph 54: Rejected as not supported by the greater weight of the evidence. Paragraph 55: Rejected as not supported by the greater weight of the evidence. Paragraph 56: Accepted in substance. Paragraphs 57-59: Rejected as subordinate to the facts actually found. Paragraphs 60-73: Rejected as unnecessary. Paragraph 74: Accepted in substance to the extent that Jewett was lying on the ground, was bloody, and was not moving. In light of the testimony of Mr. Cook that Jewett's skin was pale and there was discoloration about his face, I do not find Mr. Bouchillion's testimony that Jewett was turning blue to be credible. Paragraph 75: Accepted in substance. Paragraphs 76-77: Rejected as subordinate to the facts actually found. Paragraphs 78-86: Accepted in substance. Paragraphs 87: Rejected as not supported by the greater weight of the evidence. Paragraph 88: Accepted in substance. Paragraph 89: Rejected as subordinate to the facts actually found. Paragraphs 90-96: Accepted in substance. Paragraph 97: Having considered the opinions of Dr. Benz and Dr. Petty, I reject the finding to the extent that it implies that the fractures resulted from a choke hold applied prior to Thurlow, Jewett, and Rollin falling down and rolling into the grassy area. Paragraph 98: The first sentence is accepted in substance. The second sentence is rejected as not supported by the greater weight of the evidence. Paragraph 99: Accepted in substance. Paragraph 100: Rejected as not supported by the greater weight of the evidence. Paragraphs 101: Rejected as subordinate to the facts actually found. Paragraph 102: Rejected as subordinate to the facts actually found. Paragraph 103: Rejected as unnecessary. Paragraph 104: Accepted in substance. Paragraphs 105-109: Rejected as subordinate to the facts actually found. Paragraph 110-111: Accepted in substance. Paragraph 112: Rejected as subordinate to the facts actually found. Paragraph 113: Accepted in substance. Paragraph 114: Rejected as subordinate to the facts actually found. Paragraph 115: Rejected as unnecessary. Paragraphs 116-117: Rejected as subordinate to the facts actually found. Paragraph 118: Rejected as not supported by competent substantial evidence. Paragraph 119: Rejected to the extent that it implies that Thurlow had a choke hold on Jewett from the time there were at the rear of the Cadillac until they fell backwards. The evidence established that Thurlow did not have Jewett in a choke hold when Thurlow grabbed Jewett from behind. Paragraph 120: Rejected as constituting argument. Paragraph 121-125: Rejected as subordinate to the facts actually found. Respondent's Proposed Findings of Fact Paragraph 1: The first two sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraphs 2-3: Rejected as subordinate to the facts actually found. Paragraph 4: The first and last sentences are accepted in substance. The second sentence is rejected as unnecessary. Paragraphs 5-8: Accepted in substance. Paragraph 9: The first sentence is accepted in substance. The portion of the second sentence relating to Thurlow being able to hear is accepted but the portion that Thurlow could see everything is rejected as not supported by the greater weight of the evidence. The last sentence is accepted in substance to the extent that Thurlow thought that he needed to monitor the traffic but the greater weight of the evidence established that the Cadillac was not in the lane of traffic while it was parked. Paragraphs 10-27: Accepted in substance. Paragraph 28-30: Rejected as unnecessary. Paragraph 31: Accepted in substance. Paragraph 32: The first sentence is accepted in substance. The second sentence is rejected as subordinate to the facts actually found. COPIES FURNISHED: Dawn P. Whitehurst, Esquire Paul D. Johnston, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Gene "Hal" Johnson, Esquire Florida Police Benevolent Association, Inc. 300 East Brevard Street Tallahassee, Florida 32301 Scott N. Richardson, Esquire Atterbury, Goldberger & Richardson One Clear Lake Center, Suite 1400 250 Australian Avenue, South West Palm Beach, Florida 33401-5012 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether the alcoholic beverage license #23-03711 SRX, Series #4-COP issued to Respondent should be revoked, suspended, or otherwise disciplined because the licensee permitted patrons to commit criminal offenses on the licensed premises, including possession, delivery and distribution of controlled substances such as cocaine; because a nuisance is maintained on the licensed premises; or because the premises are a notorious gathering place for those predisposed to deal and deliver controlled substances in violation of Florida law.
Findings Of Fact All Purchase Corp. owns the restaurant and bar known as Flame Steak, located at 216 Lincoln Road, Miami Beach, Florida. The establishment holds a Series #4-COP license, #23- 03711 SRX, for the sale of beer, wine and liquor on the premises. The owner of the licensed premises is Mr. Gilberto Rivas. The licensed location consists of a 35 foot glass store front on Lincoln Road. As one enters the restaurant, immediately to the left there are tables, and farther to the left is the kitchen, which contains an open flame grill (hence the name of the establishment). Going deeper into the restaurant, at the end of the kitchen area is a bar with stools. There are more tables in the center of the room, and to the right is a dance floor. At the right rear of the dance floor is a D.J. booth. At the rear left of the establishment is a staircase leading to an upstairs hall, where the men's and women's bathrooms are located. The establishment uses the services of a security guard firm, Columbo Investigations. One guard ordinarily remains at the entrance to check IDs of patrons, and to pat patrons down, to be sure they are not carrying weapons into the establishment. In the year before the emergency suspension, the Miami Beach Police Department responded to 28 calls of incidents at the licensed premises, but none of these calls were for narcotic violations. Another guard is ordinarily stationed in the hall upstairs just in front of the bathrooms. A third guard occasionally roams the establishment. Both the security guards and the bartender are under instructions from Mr. Rivas to immediately remove any patron who breaks the law, especially one who is disorderly, drunken, or otherwise causing a problem. Although the security guard and bartender also testified that Mr. Rivas had instructed them to remove anyone engaging in any illegal activity such as the sale of cocaine, the Hearing Officer is persuaded that the focus of their activities is to remove drunken or disorderly patrons. There is no evidence of any specific program for observing patrons to watch for illegal narcotics transactions. Indeed, the evidence shows a rather casual attitude on the part of security guards to the presence of narcotics, for at one time during the investigation, one of the security guards was smoking marijuana in the men's room. (See, Finding 11, infra.). On another occasion, a DABT officer openly passed a one inch by one inch baggie of cocaine to another officer on the stairs going up to the men's room, which only elicited a wink from the security guard. (See, Finding 16, infra.). Over time, three confidential informants for the City of Miami Beach Police Department told the police that illegal drug transactions were taking place at Flame Steak. Based on these reports, the Department began an undercover investigation, which included agents from the Division of Alcoholic Beverages and Tobacco of the State. The evidence of the reputation of Flame Steak as a location where drugs can be purchased was rather general, but it did serve to explain a legitimate reason for the Police Department and the DABT to have undertaken their investigation. The police did not go to Mr. Rivas with their information before the investigation began. The investigation began on February 18, 1990, and continued through the arrests made at Flame Steak and the suspension of the alcoholic beverage license on Friday, April 6, 1990. Events of February 18, 1990. Miami Beach Police Detective Elicio Zacarias went to Flame Steak with a confidential informant at approximately 12:30 a.m. on February 18, 1990, in an undercover capacity. He spent several hours there, and the confidential informant introduced him to a man, "Eric" and a woman. After meeting Eric, Detective Zacarias asked Eric "how much he could get for $40" as he was standing at the bar. Eric told him to move to a table about 10 feet from the bar. Shortly thereafter Eric returned, and put a one inch by one inch clear plastic baggie of cocaine on the table top next to Detective Zacarias' hand. Detective Zacarias then gave him $40 cash in plain view; Detective Zacarias flicked the baggie to get residue from the top of the baggie down into its bottom in an open manner. Detective Zacarias then made three or four trips to the men's room in order to appear to be snorting the cocaine. He did not pretend to use the drug in the view of anyone in the public areas of the bar; he merely went to the men's room. That same night, Eric introduced Detective Zacarias to the owner of Flame Steak, Mr. Gilberto Rivas. Mr. Rivas is at the location every night. Eric obviously knew Mr. Rivas, and appeared to be familiar with the other people who worked at the bar. Nothing Eric said to Detective Zacarias implied that Mr. Rivas used cocaine, or had ever seen cocaine being passed in the bar, however. Before the bar closed, Detective Zacarias approached Eric for a second time and asked if he could get some more "to go". Eric replied "sure," and went to the front of the establishment to meet with some other person who Detective Zacarias could not see. Eric returned and gave him a similar baggie in a hand- to-hand exchange over the bar during which Detective Zacarias gave Eric $25. Detective Zacarias then left -the bar at about 4:00 a.m. with the two baggies of cocaine. Events of the night of February 24 and 25, 1990. Detective Zacarias returned to the Flame Steak with DABT Investigator Weiner and the confidential informant at approximately 11:00 p.m. on February 24, 1990, in an undercover capacity. The confidential informant introduced Detective Zacarias to a white latin male at the bar, near the staircase to the restrooms. The confidential informant asked that man if he could get something for later, to which the unidentified man replied "I'll take care of you," and told Detective Zacarias and the confidential informant to go up to the men's room. That unidentified man then came to the men's room and in the open part of the men's room sold a similar small baggie of cocaine for $45. Detective Zacarias and the confidential informant then returned to the bar and sat with Agent Weiner. From time to time they would go up to the men's room to appear to be using the cocaine. At about 1:45 a.m. on the morning of February 25, 1990, they made another buy from the same individual. This time the baggie of cocaine was transferred hand-to-hand but below the bar level. Detective Zacarias paid $45 for the cocaine. He left at about 3:00 a.m. Events of March 3, 1990. Detective Zacarias again went to Flame Steak with another undercovered detective, John Quiros on Saturday March 3, 1990. They met the same unidentified white latin male who had sold Detective Zacarias cocaine on two occasions on the night of February 24 and 25, 1990. Detective Zacarias asked him if there was anything available, and was told to go to the men's room. The unidentified latin male removed a baggie from his wallet, which he sold to Detective Zacarias for $30. Detective Zacarias was at the restaurant for approximately 2-3 hours on that occasion. Events of March 16, 1990. Detective Zacarias again went to Flame Steak on Friday, March 16, 1990, at about 10:30 p.m. with Detective Quiros and DABT Investigator Weiner and a female detective for the Miami Beach Police Department, Kelli Reid. The were also in the company of the confidential informant. After they were there almost two hours, Detective Zacarias was introduced to a black female, and he asked her in Spanish if there was "anything available." She replied "for $40 I can get you enough," and Detective Zacarias gave her $40. She went over to a latin male at the bar who took a small baggie, similar to the other baggies in which cocaine had been packaged on prior occasions, from his right rear pocket and gave it to her; she in turn gave it to Detective Zacarias over the table. At about 1:45 a.m. Detective Zacarias asked the same female if she could get more at a lesser price. She then introduced Detective Zacarias to a different white latin male who came to their table from the bar. She told him in Spanish "bring me back for 30" and about 20 minutes later he gave her a baggie which she gave to Detective Zacarias hand- to-hand at waist level containing cocaine. That same morning at about 3:30 a.m. Detective Zacarias asked the black female if he could buy some "to take home." She took Detective Zacarias to the second man again; he took the cocaine from his shirt pocket, and gave it to her for $35. Detective Zacarias held the cocaine in his right hand, examined it, put it in his pocket while he was at a table about five feet from the bar area. That same morning, Detective Zacarias saw a man whom he knew as "Freddie" snorting cocaine in the men's room as Detective Zacarias entered. At about 4:30 a.m. on March 17, 1990, DABT Investigator Weiner was introduced by the confidential informant to a white latin female, "Atricia." Agent Weiner asked Atricia if she could get cocaine, and she left the area where Weiner had been sitting to approach an unidentified latin male. She returned with a message that she could obtain cocaine for $30. Weiner gave her the $30. She left, and when she returned handed Weiner a clear plastic baggie of cocaine. Events of March 24, 1990. Detective Zacarias returned to Flame Steak with Miami Beach Police Detective Reid and DABT Investigator Weiner early in the morning of March 24, 1990, with the confidential informant. After being in the lounge for 45 minutes to an hour, the black female from March 17, 1990, invited Detective Zacarias to sit at her table in the center of the lounge area, near the dance floor. She was with three other women. Detective Zacarias asked her in Spanish if she could find something, she asked "how much?" Detective Zacarias gave her $40. The black female went to a male at the other end of the dance floor and when she returned she gave Detective Zacarias openly in a hand-to-hand fashion a baggie of cocaine over the table. Later they were joined by Eric. Eric had seen the black female purchase the cocaine she recently had given to Detective Zacarias, and asked for a "hit" of the cocaine. Detective Zacarias gave him the baggie and Eric and the black female consumed the cocaine, not openly on the floor of the establishment, but by going to the restrooms. Detective Zacarias had to make the cocaine available to the black female and to Eric in order to maintain his cover. It is common for people who arrange cocaine purchases to be rewarded by being given part of the cocaine they assisted in procuring. On another occasion that night while going to the men's room, Eric asked Detective Zacarias for a hit and Detective Zacarias gave Eric the cocaine in front of the security guard on the second floor landing. Detective Zacarias offered cocaine to the security guard on the second floor landing, who looked directly at it, declined, but did make the comment "it looks good." DABT Investigator Weiner later saw the guard smoking marijuana in the men's room. Later that evening at about 2:00 a.m. Detective Zacarias asked the unidentified black female if she could get more cocaine. She motioned for money and he gave her $40. The black female approached a latin male with a goatee. She gave him the cash and she returned with a clear plastic baggie of cocaine which she delivered to Detective Zacarias hand-to-hand at table level. Thereafter, at about 2:20 a.m., Investigator Weiner met Atricia and negotiated a cocaine purchase for $40. Atricia gave Weiner a baggie of cocaine in an open fashion over the table and he delivered currency to her in the same way. At about 3:45 a.m., after Detective Zacarias had made several trips to the men's room, he asked the black female if he could get some more, and gave her another $40. She then went to a latin female who had been identified as "Isabelle," and while DABT Investigator Weiner saw currency change hands, he did not see Isabelle deliver any cocaine to the black female because of obstruction of his view by people in the bar. The black female returned and delivered cocaine to him in a baggie hand-to- hand, at table level about 10 feet from the bar near the dance floor. Events of March 31, 1990. Detective Zacarias, Detective Reid, and DABT Investigators Weiner and Mesa (a female) went to Flame Steak with a confidential informant at about 12:15 a.m. on March 31, 1990. Investigator Weiner met the white latin male patron, "Frank," who asked Weiner if he "needed anything tonight?" Weiner said "yes," he would start with 1/2 gram. Frank pulled out a clear baggie and sold it to Investigator Weiner for $20. The barmaid then came to the table to take drink orders. Investigator Weiner passed the cocaine over the table to Investigator Mesa as the barmaid was serving the drinks and Mesa returned the cocaine baggie to Weiner. Although this transaction could easily have been seen by the barmaid, the evidence is not persuasive that the barmaid actually saw it. DABT Investigator Weiner negotiated a second cocaine purchase from Frank in the front part of a lounge, paying $20 for the cocaine. It was passed hand-to-hand at waist level. While they were at Flame Steak, Weiner asked Mesa to accompany him upstairs to the restrooms. They passed the security guard at the top of the stairs, where Weiner openly passed the cocaine to Mesa, which elicited the wink from the security guard which has previously been referred to in Finding 2 above. Finally at about 2:30 a.m. on March 31, 1990, Investigator Weiner negotiated his third purchase from Frank. The cocaine was purchased for $20 which was exchanged for cocaine in the same manner as the prior purchases. General Findings Despite the numerous cocaine transactions which the Miami Beach Detectives or the DABT Investigators were able to make with ease from several patrons on the licensed premises, during the entire time of the investigation, no City of Miami Beach Detective or DABT Investigator ever observed any other patrons making drug transactions at any time. Obviously Eric saw the purchase made by Detective Zacarias on March 24, 1990, because he came over and asked for "hits" from the cocaine purchased, see, Finding 11, supra. It is not clear whether the barmaid taking drink orders on March 31, 1990, saw Investigator Weiner pass cocaine to Investigator Mesa. It is clear, however, that on two occasions the security guard at the top of the stairs saw cocaine, once when it was passed from Detective Zacarias to Eric (Finding 11), the second time when it was passed from Investigator Weiner to Investigator Mesa (Finding 16). That security guard also smoked marijuana in the bathroom on the licensed premises (Finding 11). There is no evidence that any drug transactions took place in front of the owner, Mr. Gilberto Rivas. The music played by the D.J. in the bar was so loud that it would be difficult for bartenders or barmaids to overhear conversations among patrons not in close proximity to those employees. No person who sold or procured the sale of cocaine ever made any statement which could be construed as an indication that Mr. Rivas, or any bartender or barmaid knew that illegal drug transactions were taking place on the licensed premises. On the other hand, the security guards, who may nominally be independent contractors, but who are under the direction and control of the owner, Mr. Rivas, saw, knew about, and participated (through smoking marijuana) in the use of controlled substances on the licensed premises. No security guard called the police or asked any persons he saw with cocaine to leave the premises. Mr. Gilberto Rivas did not take any special precautions to prevent or detect drug activity on the premises. He did tell the employees to remove anyone whom they may see involved in drug activities. Mr. Gilberto Rivas had no actual knowledge that drug transactions were taking place on the licensed premises. He opposes drug trafficking, and he has not knowingly permitted the sale of drugs at the restaurant. He has even thrown people out of the establishment if he suspected that they were involved in drug- related activities. The majority of the cocaine sale transactions took place in plain view on the licensed premises. The sales did not take place only in closed toilet stalls in one of the restrooms, but in the open part of the restroom, and more importantly, at the bar or at tables in the restaurant. The number of people at the premises did make watching drug transactions somewhat difficult. For example, on several occasions the detectives or investigators had their views obstructed, so that the could not view both the exchange of currency and the delivery of cocaine to persons who purchased drugs for them. Nonetheless, in view of the number of drug buys that were made over a relatively brief period of time, and the remarkable ease with which apparently innocuous inquiries about whether "something was available" were immediately recognized by bar patrons as request to purchase cocaine, and the very brief periods of time in which sales were consummated, there was a sufficiently persistent pattern of open drug activity that the problem should have been noticed by a reasonably diligent licensee. Mr. Rivas focused his attention on patrons who became rowdy, drunk, or would not pay their bills, and failed to take reasonable efforts to discover or prevent drug transactions on the licensed premises.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that All Purchase Corp. d/b/a Flame Steak be found guilty of violation of the beverage laws by permitting patrons to violate the laws of Florida on the licensed premises through the use of cocaine and marijuana, and by maintaining a nuisance on the licensed premises because cocaine was used and sold and marijuana was used on the premises, in violation of Sections 561.29(1)(a) and (c), 823.10 and 893.13(2)(a)5. Florida Statutes. As a result, the beverage license should not be revoked, but should be suspended for a period of 60 days, and an administrative fine of $2,000 should be imposed. DONE and ENTERED this 20th day of April, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 20th day of April, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-2189 Rulings on proposals made by the Respondent: 1. Adopted in Finding 1. and 3. Accepted, passim. Adopted in Findings 4-6, except that the amount of cocaine sold in each instance was not proven to be 1/2 gram, but from viewing it, it appear to have been approximately 1/2 gram. Adopted in Finding 7. Adopted in Finding 8. Adopted in Findings 9 and 10, except that the packets were approximately 1 to 1 1/2 inches square, not 1/2 inches square. Adopted in Finding 11, except that the transfer of the cocaine was not done in a concealed manner, because Eric saw it. In addition, the evidence supports the inference that the security guard was either employed by the restaurant, or was under the direct supervision and control of Mr. Rivas. Covered in Findings 14-17. Adopted in Finding 18. Accepted as to Mr. Rivas, the bartender, and the barmaids, but rejected with respect to the security guard. Accepted, see, Finding 2. Rejected because there had been 28 calls, not 4 or 5 calls to the Miami Beach Police Department. Discussed in Findings 19-22. Rulings on proposals made by the Department: Covered in Finding 1. Covered in Finding 3, in a general manner as to the impetus for the investigation. The events of each of the nights is separately explained in the Recommended Order. and 4. Rejected as unnecessary; the material purchased was cocaine. To the extent appropriate, covered in Finding 3. While the printout Sergeant Hunker offered was not admitted, his testimony established the number of police calls to the bar. Separately covered in the Findings relating to the nights of March 16 and 31, 1990. Rejected as unnecessary. Gilberto Rivas had very little useful information in his testimony, due to his limited work at the bar. Adopted in Findings 19 and 22. Generally accepted as it relates to the duties of the security guards at the premises and the instructions from Mr. Rivas. The Notice to Show Cause raises no issue with respect to sales to underaged drinkers, so no findings on that subject have been made. Generally rejected because the testimony of Mr. Rivas was rather confusing, no doubt in great part because of the difficulty in translation. Findings with respect to the time Mr. Rivas spends at the location and what he told his employees are made in Findings 5 and 19-22. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Yale L. Galanter, Esquire Beverly Myrberg, Esquire 2800 Biscayne Boulevard 9th Floor Miami, Florida 33137 Leonard Ivey, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether the Division of Administrative Hearings (DOAH) has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if a Petition for Relief is referred to the DOAH for formal hearing based on a Notice of Determination: No Jurisdiction issued by the Florida Commission on Human Relations (FCHR).
Recommendation Based on the foregoing, it is RECOMMENDED that the FCHR resume jurisdiction of the matter and complete the investigation of the Charge of Discrimination, pursuant to Section 760.11(3), Florida Statutes, or permit Petitioner to make her election of remedies pursuant to Section 760.11(8), Florida Statutes. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2002. COPIES FURNISHED: William R. Amlong, Esquire Amlong & Amlong, P.A. 500 Northeast Fourth Street Second Floor Fort Lauderdale, Florida 33301-1154 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Keith C. Tischler, Esquire Powers, Quaschnick, et. al. 1669 Mahan Center Boulevard Post Office Box 12186 Tallahassee, Florida 32317-2186 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
