The Issue Whether or not on or about August 9, 1978, Beach Park Motel, Inc., a vendor, licensed under the Beverage Law, its agent, servant, or employee, one Ruth Ira Holmes, did unlawfully offer to commit prostitution, lewdness or assignation, for the sum of $40.00 U.S. currency, with Beverage Sergeant R. A. Boyd, contrary to Subsection 796.07(3)(a), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about August 22, 1978, Beach Park Motel, Inc. , a vendor, licensed under the Beverage Law, its agent, servant, or employee, one Diana Alice Baumbach, did unlawfully offer to commit prostitution, lewdness or assignation for the sum of $40.00 U.S. currency, with Beverage Officer B. A. Watts, contrary to Subsection 796.07(3)(a), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about September 6, 1978, Beach Park Motel, Inc., a vendor, licensed under the Beverage Law, its agent, servant, or employee, one Diana Alice Baumbach, did unlawfully offer to commit prostitution, lewdness, or assignation for the sum of $50.00 U.S. currency, with Beverage Officer C. E. Lloyd, contrary to Subsection 796.07(3)(a), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about September 6, 1978, Beach Park Motel, Inc., a vendor, licensed under the Beverage Law, on its above-described licensed premises, by its agent, servant, or employee, or entertainer, one, Diana Alice Baumbach, did unlawfully beg or solicit a patron, customer, or visitor, Beverage Officer C. E. Lloyd to purchase a beverage, to-wit; "CHERRY DELIGHT", for such employee, servant, agent or entertainer, in violation of Section 562.131, Florida Statutes. (The charging document, i.e., Notice to Show Cause, originally contained other allegations found in its Counts 1 and 5; however, those counts were withdrawn by the Petitioner in the course of the hearing and are therefore removed from consideration through this Recommended Order.)
Findings Of Fact The Respondent in this cause is Beach Park Motel, Inc. , a closely held corporation. This corporation is a holder of Beverage License No. 15-002265, Series 4-COP, to trade as Beach Park Motel at a business premises located at 4290 Ocean Beach Boulevard, Coco Beach, Florida. This license is held with Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, which organization has responsibility for the licensure and regulation of those several business entities within the State that sell alcoholic beverages. This case is here presented for consideration on the basis of a Notice to Show Cause/Administrative Complaint which contains six counts, Counts 1 and 5 having been withdrawn. The details of the remaining counts are as set forth in the issues statement of this Recommended Order. On August 9, 1978, Officers Richard Boyd and Bethel Watts, Jr., of the Division of Alcoholic Beverages and Tobacco, went to the licensed premises at 4290 Ocean Beach Boulevard, Cocoa Beach, Florida, for purposes of investigating alleged prostitution activities at the licensed premises. They entered the premises and took a seat at the bar around 9:30 p.m. While seated there, they observed Ruth Ira Holmes performing as an entertainer in the bar by dancing. This person, Holmes, was also referred to by a stage name, "Nina". Holmes then left the stage and approached Officer Boyd, who was sitting in a separate location from Officer Watts. This contact between Holmes and Boyd occurred thirty or forty minutes after the officers had arrived at the licensed premises. There ensued a discussion between Boyd and Holmes on the subject of purchasing marijuana. (The allegation concerning the Respondent's participation in this alleged possession and sale of marijuana has been withdrawn.) Holmes then went around the service bar and picked up her purse from behind the bar. Boyd and Holmes then left the interior of the licensed premises. Once outside Holmes produced two envelopes with a substance which appeared to be marijuana and the officer also observed in her purse a larger bag which had a substance of similar appearance. Boyd asked how much the contents of the larger bag would cost and gave her $25.00, purchasing those contents. The witness then returned the small envelopes to her purse. Boyd asked Holmes what she was doing after work and she replied, "Are you asking for a 'date'?" Boyd responded, "Yes" and Holmes stated, "You mean 'that'?" and thrust her body at him. Boyd asked her what it was going to cost and she replied that for $40.00 she would do anything he wanted. He accepted her offer and she gave him the key to Room 224, which was a key to the motel part of the Respondent's establishment. Holmes checked to make sure that no one was observing them and they proceeded to the motel room. When they reached the room, he gave her two twenty dollar bills. She placed the money in her purse and took off her clothing with the exception of a "G" string and stated to him, "Let's get started." Boyd moved-toward the door of the motel room, after which he produced his law enforcement officer's identification badge and officers of the Brevard County Sheriff's Department took Holmes into custody. Howard Warren, President of the Respondent corporation, was seen at the licensed premises that night. Later, in connection with an investigation of her activities, a statement was given to Officers Boyd and Watts by Ruth Ira Holmes in which she indicated to the officers that she had been employed in the licensed premises known as the "Booby Trap" to work as a dancer and Howard Warren, then President of the Respondent corporation, had hired her. Her rate of pay was $2.50 per hour. She further stated that she had been employed for about seven months and was paid at the end of each week by check from Howard Warren. The Petitioner's Composite Exhibit 4 admitted into evidence is a series of checks written by Howard Warren and made payable to Ruth Ira Holmes beginning on July 7, 1978, with the last check being drawn on September 1, 1978, and one of the checks being drawn on August 1, 1978. The observation of Holmes' dancing on the licensed premises on the night in question, the statement that she was an employee paid by Howard Warren and the series of checks drawn by Howard Warren to Ruth Holmes, also known as Ruth Ira Holmes, are sufficient to show that Ruth Ira Holmes was employed as a dancer by the Respondent to work at the licensed premises in such capacity on August 9, 1978. This determination is further borne out by the Petitioner's Exhibits 3 and 5 admitted into evidence which are copies of the payroll accounts of the Respondent showing that Ruth Holmes was an employee and by part of Petitioner's Composite Exhibit 6, which is a motel registration card showing Ruth Holmes to be registered in the same room, 224, spoken to before and shows her occupation to be dancer. Officer Watts returned to the licensed premises on August 22, 1978, and again operating in an undercover capacity. While seated at the bar, he was approached by Diana Baumbach, also known as 'Misty'. Baumbach asked Watts if he were having a good time and he told her that things were rather slow and that he had been led to understand that the "Booby Trap" was a place where the action was. Baumbach responded by telling Watts that she could provide him some action for $40.00, either a "blow job"/fellatio or "screw"/intercourse. During this conversation Baumbach indicated that she worked in the licensed premises. She also stated in the course of the conversation that when a certain girl who was dancing had finished her performance it would be Baumbach's turn. Baumbach was wearing a long sleeved jacket and bikini panties and after this initial discussion with Watts went to the dance area and performed for the crowd. Baumbach returned to the location of the officer and stated she was ready to go. They walked through the rear of the bar and she took him to Room 206 in the motel part of the Respondent's complex. They entered Room 206 and Baumbach stated that she wanted her $40.00 and Watts gave her two twenty dollar bills. Baumbach took off her coat and Watts stated that he wanted to check to see if anyone was outside. He opened the door and allowed an officer of the Cocoa Beach Police Department to enter the room and Baumbach was arrested. On September 6, 1978, Officer C. E. Lloyd of the Division of Alcoholic Beverages and Tobacco went to the licensed premises in an undercover capacity to investigate alleged prostitution at that location. He entered the licensed premises and took a seat at the bar in the area of the dance floor. After being seated, he was approached by Diana Baumbach, who asked him if she could sit down. She inquired if Lloyd would buy her a drink and he complied with that request and bought the drink. She then asked Lloyd if he "messed around" and his answer was, "Sometimes." She stated that she would give him a "blow job"/fellatio for $30.00 or "all the way"/intercourse for $50.00. She then stated that she could not go right away because the master of ceremonies was going to call her up to dance. She danced two times in front of the audience. The dancing she did was a topless routine. She returned to Lloyd's location and asked if he knew his way around and stated that he should go up to Room 216 and that she would follow up. When he arrived at Room 216 in that part of the Respondent's establishment, Baumbach was already there. They went inside the room and Baumbach again advised Lloyd that the price was $50.00. She took her clothes off and he took off his shoes and then went to the door, at which point he advised Baumbach that she was being arrested and she was arrested. Lloyd later spoke with Howard Warren about the solicitation for prostitution that had occurred on the part of Baumbach as a follow up to his investigation and the arrest of Baumbach. Baumbach, on the occasions of August 22, 1978, and September 6, 1978, at which points she solicited Officers Watts and Lloyd, respectively, for the purposes of committing prostitution, was an employee, agent and entertainer of the Respondent in the sense of the dance performances she gave for the benefit of the patrons in the licensed premises. This determination of employment is supported by the testimony of Carol Sue Warren, daughter of Howard Warren and manager of the "Booby Trap" during August and September, 1978, who testified that Baumbach was an employee of the Respondent at time which corresponds to August 22, 1978, and September 6, 1978. Moreover, the rendezvous between Ruth Ira Holmes and Officer Boyd on August 9, 1978; the rendezvous between Diana Alice Baumbach and Officer Watts on August 22, 1978, and the rendezvous between Diana Alice Baumbach and Officer Lloyd which occurred on September 6, 1978; all these meetings for purposes of committing prostitution in the motel which is a part of the Respondent's establishment located at 4290 Ocean Beach Boulevard, Cocoa Beach, Florida, were types of activities known by the officials of the Respondent to be taking place. This knowledge on the part of the officials of the Respondent covered the period of August 9, 1978, through September 6, 1978, and pertained not only to the solicitation to commit prostitution, lewdness or assignation and the occurrence of such prostitution, lewdness and assignation on the part of Ruth Ira Holmes and Diana Alice Baumbach but also pertained to such activities by other employees or dancers who worked in the licensed premises during this period of time. This knowledge on the part of the Respondent's officials, and in particular its president, Howard Warren, was not part of a pattern of conduct which actively condoned activities of prostitution by the employees and/or dancers who worked at the licensed premises, in fact the owners had a stated policy of not allowing prostitution or soliciting drinks or activities involved with drugs on the part of their female employees or others who might be dancing in the licensed premises and the Respondent's representatives had fired certain of the female employees in the past when they had been discovered committing acts of prostitution. Nonetheless, the Respondent in the person of Howard Warren stated that he did not wish prostitution in the licensed premises but didn't feel he could really effectively stop it and went further by rehiring Ruth Ira Holmes as an employee of the Respondent after she had been discovered committing acts of prostitution. Holmes, after returning as an employee, then continued her activities as a prostitute. Diana Alice Baumbach had also been employed by the Respondent and had been fired several times during the course of her employment, one of those firings occurring after her arrest for the prostitution incident involving Officer Watts that occurred on August 22, 1978. She was then rehired and was an employee of the Respondent on September 6, 1978, when she committed a further act of soliciting for prostitution which occurred with Officer Lloyd. Baumbach was also represented by Howard Warren as attorney following an arrest. Both Holmes and Baumbach were allowed to remain as tenants in the Respondent's motel, the same motel where the prostitution had occurred, and were allowed to do so following their arrests in August of 1978, for prostitution offenses.
Recommendation In consideration of the facts found herein, the Conclusions of Law reached and those matters offered in mitigation, it is RECOMMENDED that the license of the Respondent, Beach Park Motel, Inc. d/b/a Beach Park Motel, be REVOKED. 4/ DONE AND ENTERED this 6th day of March, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact At all times pertinent to the issues herein, Respondent held Florida Alcoholic Beverage License 2-COP No. 54-00184 at Stew's Bar located at Third Avenue, Maloney Subdivision, Stock Island, Monroe County, Florida. The parties stipulated that Robert Stanley Gardner, Respondent's husband, has a financial interest in the leased premises. Based on Respondent's testimony, it is clear that she did not understand the nature of her stipulation regarding Robert Stanley Gardner's interest in the licensed premises, and he in fact has no interest therein. Stew's Bar has had a reputation with the Monroe County Sheriff's Department as a trouble spot for a considerable period of time prior to the events which took place here. However, upon questioning, Major Somberg, who had a computer printout of all calls received by his office relating to this establishment, was unable to cite even one previous call relating to narcotics. Nonetheless, based on the records of law enforcement agencies in the area, an undercover operation was instituted against Respondent's establishment in late April and early May 1984. On April 25, 1984, at approximately 3:50 p.m., Gale Sampson, an investigator with the Miami office of the Division of Alcoholic Beverages and Tobacco, entered Respondent's bar in an undercover capacity. She spent a period of time observing patrons and employees and noticed a Latin male who had a towel rolled up under his arm. She observed this individual take a packet from the towel, wave it in the air, and say "Haircut." The bartender at the time, Geraldine Hook, laughed, as did several patrons, but made no effort to stop this individual. This packet, a plastic bag containing a white powdery substance, was consistent with the way cocaine is packaged. This package was not, however, confiscated, nor were the contents identified. The following day, at 5:45 p.m., Sampson again went into the bar. She saw Hook again working behind the bar and asked Hook if she knew where she, Sampson, could get some cocaine. Hook turned and asked a female by the name of Alvarez, who said "Yes." Alvarez and Sampson agreed upon a price of $45 for a half gram, and Sampson gave Alvarez $50. Somewhat later, Alvarez returned to the bar and gave Sampson a half gram package and $5 in change. The contents of this package were subsequently tested in the laboratory of the Monroe County Sheriff's Office and were determined to be cocaine. Hook categorically denies arranging this sale. She admits to knowing Alvarez, but denies knowing even if there was any deal between Alvarez and Sampson. She also contends that when Sampson approached her to buy cocaine, she refused to get Sampson any and told Sampson that if she wanted any, she would have to get it herself. This last admission serves to defeat the credibility of Hook's denial. Somewhat prior to this transaction between Sampson and Alvarez, Beverage Investigator Clark A. Raby, assigned to the Live Oak, Florida, office, but in Key West on the same undercover operation, entered Respondent's bar at 4:50 p.m. as a backup for Sampson. He sat at the bar and ordered a beer from Hook. During the course of the evening, he had a conversation with the bartender and various patrons. He saw one Latin and two white males light and pass around what appeared to him to be a marijuana cigarette right at the door. He later went into the men's room and found a Latin male and a white female in the men's room rolling a cigarette. When he excused himself, she said it was all right--she was in there all the time. Sampson went back into the bar at 11:35 a.m. on April 27 and went right to the bar. She was approached there by a Latin male subsequently identified as Vernesto Seguseo, who asked her to sit in a booth with him. She did, and during the conversation asked him if he was an employee of the establishment. He replied that he was a bouncer, but not on duty. She asked him if he could tell her where she could buy cocaine. He said he had it right there, and she asked him how much one-half gram would cost. He replied "$40," whereupon she paid him as requested. In response, he took a small plastic packet out of his pocket and gave it to her. The contents of this packet were subsequently chemically analyzed by the Monroe County Sheriff's Office and determined to be cocaine. Though this individual never specifically stated he was an employee of this establishment, and evidence indicates from Respondent's witnesses that he was employed as a bouncer at another bar in the area, he was nonetheless seen in this establishment previously in areas reserved for employees of the bar. The testimony of Ms. Otona, the bar manager, and at least one barmaid indicates that this individual was not employed by Respondent's establishment until May 15, 1984, and, at the time of this sale, was not a bar employee. Raby also entered the bar at 4:50 p.m. on April 27, 1984. He went to the bar, where he ordered a beer from Hook. Shortly afterward, a black male offered to sell him a "Columbian joint" for $1.50. Raby paid him $2 and got the cigarette. Hook was there all the time and did not try to stop the transaction. However, there is some doubt as to whether she saw it. Raby testified that when the transfer of the cigarette was made to him, the cigarette was passed at the level of, or even below the level of, the bar, and it is very possible that Hook did not see the transaction occur. Hook indicates that at that time she was wearing dark glasses to cover the effects of a beating she had received from her boyfriend and did not see anything like what Raby described. Consequently, it is most likely that she did not. This cigarette was subsequently analyzed by the laboratory of the Monroe County Sheriff's Office and determined to be marijuana. This same black male individual, subsequently identified by the initials "J. J.," told Raby at the time that there was good cocaine available for $40 from "Latin brothers." On that same afternoon, Raby overheard Geraldine Hook agree to smoke and saw her smoke what appeared to be and smelled like marijuana right outside the back door of the establishment. There is no evidence, however, whether or not the substance was in fact marijuana. On April 28, 1984, Raby went into the Respondent's bar at approximately 5:30 in the afternoon and ordered a beer from the bartender, Joyce. J. J. came up and asked how he liked the cigarette he had purchased the day before, then asked if he wanted to buy some cocaine for $40 a half gram. Raby indicated that he did, whereupon J. J. walked off for awhile and came back. When J. J. came back to the bar, Raby put two $20 bills out which J. J. took. He again went away and came back a moment later with a packet which he passed to Raby beside the bar. He did nothing to hide it, and Joyce was there and did nothing to stop it. Raby is not sure if Joyce saw this or not, however, as he was not looking at her at the time. The substance was subsequently identified by the laboratory as cocaine. Sampson was also at the bar early in the morning of April 28, sitting with Vernesto Seguseo. The barmaid, Joyce, said she was taking $15 from the register and someone would replace it later. Seguseo agreed. Beverage Investigator Beverly Jenkins, who had received word from a confidential informant that an employee of the bar, a maintenance man described as a short black male with a beer belly and no teeth, was selling cocaine. When she first went into the bar on May 14, she saw this man there behind the bar filling the orders and taking orders from Geraldine Hook, the barmaid. When Jenkins talked with him, he admitted he worked there all the time, but did not want to engage in any long discussions at the time. He asked Jenkins to come back without her partner. On May 15, at approximately 5:55 p.m., she went back alone. This individual previously mentioned, who was subsequently identified as "Peter," immediately approached her and offered to introduce her around and "do her right." Jenkins asked him for cocaine. Peter went to another employee, came back, and said he could not provide it. Later, however, he offered to use cocaine with Jenkins if she would go with him. She refused and said she was going to leave, at which point he asked her to wait for him to finish work. Jenkins agreed to this and later left the bar and went out to her car. Shortly thereafter, Peter came out and got in Jenkins' car, at which point he offered to sell her a half gram of cocaine for $40. He offered to reduce the price if she would buy more than one packet. Jenkins agreed to buy three one-half gram packets for $35 each. She paid Peter $105 and received from him a substance which was subsequently identified as cocaine after being analyzed by the Monroe County Sheriff's Office laboratory. At 6:20 p.m. on the following day, May 16, when Jenkins went back in the bar, Peter was not there, but Vernesto, a former employee, was. Within a few minutes, Peter came in and approached Jenkins, asking her if she wanted more cocaine. When she said she did, he asked her to come outside. She resisted at this time because she was playing pool. When she finished the game, Jenkins went over to Peter, who took her outside and sold her a half-gram of a white powdery substance for $30 on the condition that she always buy from him and not from someone else. The substance Jenkins purchased on this evening was subsequently analyzed and determined to be cocaine. While Jenkins was in the bar this evening, she noticed there was a lot of traffic going to and from the rest rooms. She saw Peter go into the rest room with a patron, and she noticed that as he entered the rest room he was taking from his pocket a plastic bag similar to those which he had sold her previously. Jenkins did not see this transaction go down, however, but later saw the patron leave the rest room. The following day, Jenkins noticed that Gerry (Geraldine Hook) was back behind the bar and looked tired. Jenkins noticed that a female patron followed Gerry and her boyfriend into the back, where she saw Gerry breathe in through her nose a white powder. Jenkins asked to join the party at the time, but was refused. The female patron was identified as Donna, a clinic employee, who said at the time they were all a friendly group. This same patron, Donna, went into the restroom later with a Latin male and shortly after came out, rubbing her nose in a fashion consistent with cocaine use. Geraldine Hook, on the other hand, denies under oath that she was ingesting cocaine. Hook contends that she was explaining to her boyfriend why she could not get off work early and that the other lady was translating her comments to her boyfriend, who does not speak English. Hook contends that she does not ever snort or ingest cocaine because she is allergic to all drugs that are in the cocaine family and in support of that statement submitted a medical record from the Florida Keys Memorial Hospital emergency room showing that on April 23, 1984, when who was treated in the hospital because of being beaten by her boyfriend, she listed as allergies novacaine and tetracycline, tetramycin, morphine, and drugs of a similar nature. Hook also contends that she has asthma and could not use cocaine without it closing off her breathing passages. Emergency room records reflect that she has been previously diagnosed as an asthma sufferer. Later on May 17, Jenkins went back into the bar and went to the ladies' room with Peter. Peter offered to sell her two bags of cocaine for $60. After they entered the rest room, Peter closed the door halfway prior to making the transaction; however, the substance which he passed to Jenkins on that occasion and for which he charged $60 was subsequently identified as cocaine. Later that evening, Jenkins again went into the bar and saw Peter working. They played pool for a while, and she asked him for more cocaine. They went to the ladies' room again, where she paid him $60 for one gram of a substance which was subsequently identified as cocaine. During this entire transaction, the door was not closed. That same evening, Jenkins also saw Peter go into the men's room with three Latin males who, shortly after entering with him, came out rubbing and wiping their noses. This practice of patrons going into the restrooms and coming out rubbing their noses was also observed by Beverage Agent Jose Iturralde, who entered the bar undercover on both the 14th and the 15th of May, but who was unable to make a buy from Peter or anyone else because, he believes, he and the other agents had already been identified as agents. A raid in conjunction with the Monroe County Sheriff's Office and other law enforcement agencies was conducted on the premises on May 18, 1984, pursuant to a search warrant properly issued. Arrested at that time were Seguseo, Geraldine Hook, and several other Latin named patrons. Pursuant to the search carried out, the following items were found: one and one-half grams of cocaine behind the jukebox; 26 clear baggies, each containing a half-grain of cocaine, behind the bar counter on the floor; a partially smoked marijuana cigarette on top of the cash register; 14 baggies, each containing cocaine, on the bar counter; a partially smoked cigarette below and behind the bar on the southeast corner of the bar on the floor; 22 baggies of cocaine on the floor behind the bar near the entrance (these 22 baggies were contained in a white envelope) 9 syringes in a small storage room off the main bar; and a Marlborough cigarette pack containing a clear plastic bag of cocaine on one of the booth seats. Geraldine Hook does not recall seeing any patron waving a plastic bag on April 25, as testified to by Agent Sampson; however, she contends that, because of the fact that the police frequently come into the bar looking for narcotics, it is a habit of some of the patrons, as a joke, to wave around clear plastic bags which do not contain cocaine. These instances generally result in the type of laughter described by Sampson. When Hook was hired by the manager, Ms. Otona, she was told, and she recalls that other girls who had been hired there are told, that they, as employees, cannot have or use drugs on the premises or allow anyone in who uses drugs; that if they see anyone they think is using drugs, they are to put that person out. Any violation of these rules results in discharge of the employee. Hook admits having seen mixed couples going into the rest rooms from time to time, but considers this to be acceptable behavior, since there are no locks on the doors. The rules for employees, which are made known to the employee when hired, were confirmed by another barmaid, Brenda L. Gillespie. She added to the no-drug policy such things as no drinking to excess and no kissing during work, and she herself recalled having barred numerous people and having seen others barred over the past few months because of the new management (that of Mrs. Gardner, Respondent, and Ms. Otona, manager) and their attempts to do away with the previously bad reputation the bar had for drugs. Because of this, the waitresses have taken substantial abuse. Ms. Gillespie confirmed Ms. Hook's comments regarding the joke made of the waving of plastic bags, contending that the patrons are trying to test the barmaids to see how far they can go. Gillespie also contends that she is the one who pried the locks off the restrooms to prevent patrons from locking themselves in the rooms to use drugs and has many times told patrons to keep the drugs out, going so far as to call the police. Notwithstanding the testimony of all of the beverage agents that they had never seen the Respondent or the manager on the premises, Gillespie opined that either one or both are there all the time or are immediately on call, since they live in the immediate vicinity of the bar. Further, she contends that the agents were there on irregular hours or were so busy pretending to be drunk that it was impossible for them to see anyone. She recognized the undercover agents as agents, but she did not let on because she wanted their help. Louise Otona, currently the manager of Stew's Bar for Katherine Gardner, the owner, indicated that she and Respondent realized about one and a half or two months ago that there was a problem at the bar because of Respondent's husband, Stanley Gardner. Mr. Gardner is a cocaine addict, but has no interest in the premises or in the license. Because of his problem, however, Ms. Otona keeps all the money from the sales, and none is left at the bar. Respondent and Ms. Otona have barred anyone they knew who had any connection with Mr. Gardner and his drug habit. Ms. Otona has also fired anyone she knows who has anything to do with drugs and has taken over from the barmaids throwing people out. Ms. Otona admits that drugs may have been sold in the bar, but not with her knowledge or with the knowledge of her employees, because both she and Respondent have tried to do their utmost to keep drugs out. The waitresses in Stew's Bar are hardworking girls who would not knowingly jeopardize their livelihood by selling or permitting drugs to be sold in the bar. Ms. Otona and Respondent have worked hard to make Stew's Bar clean again and have made progress. Ms. Otona has received many compliments from the police on these efforts. With regard to Peter, the Latin male who sold to Jenkins on several occasions, Ms. Otona contends that Peter was fired by her personally on May 15, 1984, and could not then have been an employee of the bar at the time the sales were made. However, many of the barmaids' boyfriends help behind the bar, as do some patrons. Consequently, it may appear that individuals are employees who are working behind the bar when, in fact, they are not. Respondent testified similarly to Ms. Otona. Respondent does not use drugs herself, nor does she drink. Her husband, Stanley, is a drug addict, and she has started work to have him committed because of his addiction. He has nothing to do with the bar, however, and he is not the landlord. As far as J. J.'s coming into the bar is concerned, J. J. was barred from this establishment prior to the incidents in question, but keeps coming back. Respondent has called the police to have him thrown out, but nothing seems to help.
Findings Of Fact At all times relevant hereto, N.K., Inc., d/b/a Tobacco Road, held alcoholic beverage license number 23-733:4-COP authorizing it to sell alcoholic beverages at 628 South Miami Avenue, Miami, Florida. The establishment in question is located in the downtown area of Miami, Florida. It provides both a food and beverage service to its patrons. The bar's hours of service are from 9:00 a.m. until 5:00 a.m. daily. The kitchen is generally open from late in the morning until 3:00 p.m. and from between 5:00 and 8:00 p.m. until 4:00 or 5:00 a.m. each day. The lounge has two floors. The first floor has a bar, restaurant and outdoor patio. Entertainment is provided primarily by a disc jockey. The second floor is accessed by an interior stairway from the first floor and contains a bar and stage. The upstairs is patterned after a speakeasy from prohibition days, and features live theater performances and entertainment provided by a live jazz band. The clientele of Tobacco Road may be characterized as "mixed". During the daytime hours, it is frequented by many business and professional persons from the downtown area who partake of both meals and drinks. At night the crowd tends to be more younger and middle class although it is still an admixture of all ages, occupations and classes. The bar is located four blocks from the "tent city" where the City of Miami housed large numbers of Cuban refugees in 1980. Some refugees have frequented the Tobacco Road on occasion. The Petitioner received unidentified complaints regarding the possible sale or use of drugs in a number of Miami area lounges, including Tobacco Road. This prompted visits by undercover beverage agents to the licensed premises in January, 1981, to ascertain whether such complaints were true. On or about January 13, 1981, at approximately 10:20 p.m., Officers Mignolet and Gonzalez, two female beverage agents, visited the Tobacco Road in an undercover capacity to investigate whether narcotics were being sold on the premises. In the parking lot, they met two white male patrons named Carlos and Mark who were just leaving in their automobile and engaged them in a brief casual conversation. The officers then entered the lounge and seated themselves at the bar on the first floor. Carlos and Mark returned to the bar shortly thereafter and sat next to Mignolet and Gonzalez. The conversation turned to narcotics and after a period of time, Mark reached into his pocket and pulled out two tablets which he handed to Gonzalez. A laboratory analysis later established these tablets to be methaqualones (Petitioner's Exhibit 2). When the delivery occurred, Chris (Christopher Najdul), a bartender, was in the bar well directly in front of the beverage officers. Seated nearby were "a few other" patrons. The lighting in the area was described as "dim". After being handed the tablets, Gonzalez showed Chris the tablets in her hand. However, Chris did not say anything to acknowledge that he had seen the transaction. This was the fourth visit to the licensed premises by the two agents but represented the first time they were successful in obtaining a controlled substance despite repeated efforts to do so. On or about January 23, 1981, at approximately 12:40 a.m., Officers Brock and Thompson, two female beverage agents, visited the premises of Respondent in an undercover capacity to ascertain whether narcotics were being sold. After seating themselves at the center of the bar on the first floor, they engaged in a conversation with a white male patron named Armando Garcia. The agents asked it they could obtain some "ludes" (methaqualones). Garcia said he could obtain some "grass" (marijuana) from upstairs and temporarily left the bar. He later returned without any drugs. He then went outside the premises to his car, obtained two tablets, returned to the bar, seated himself between Brock and Thompson, and passed one each into their hands. The officers briefly examined the tablets and then placed them into their pocketbooks. Subsequent laboratory tests revealed the tablets were methaqualones (Petitioner's Exhibit 3). On or about January 24, 1981, Officers Brock and Thompson again visited the licensed premises of Tobacco Read at about 1:00 a.m. After seating themselves at the bar they were immediately approached by Armando Garcia, the same patron who had given them two methaqualones the previous evening. After approximately 15 minutes, Brock and Garcia moved to a booth away from the bar where Garcia gave her a tablet. Thompson then joined them at the booth, and Garcia set a tablet on the table for Thompson. The transaction was not observed by any employee or patron. Shortly afterwards, the agents returned to the bar where Garcia joined them. At approximately 2:10 a.m., Garcia passed a tablet hand to hand to Thompson, and swallowed another himself. When the latter delivery occurred, the bartender, Peter Aitken, was working behind the bar well but did not verbally acknowledge seeing the transaction. A laboratory analysis subsequently revealed the three tablets were methaqualones (Petitioner's Exhibit 4). On January 25, 1981, at approximately 12:15 a.m. Officers Roberts and Jones, two male beverage agents, visited the Tobacco Road in an undercover capacity to ascertain whether controlled substances could be obtained. After seating themselves at the bar, they began a casual conversation with a male patron at the bar named Lance concerning the possible purchase of drugs. They left the bar and went to the stairway between the first and second floors were Roberts asked Lance if there were any "ludes" around. Lance replied he had one for $3.00. Roberts handed Lance $3.00 and received a tablet. Laboratory tests subsequently revealed the tablet given to Officer Roberts was a methaqualone (Petitioner's Exhibit 6). When the transaction occurred, several other patrons were ahead of Roberts on the stairway. Prior to this delivery, Roberts and Jones had visited the premises on at least two other occasions but were unsuccessful in obtaining a controlled substance. On or about April 25, 1981, at approximately 12:30 a.m., while on the licensed premises, Officer Marrero, a male beverage agent, met a Latin male patron who offered to sell some marijuana. Officer Jones accompanied Marrero and the patron to the men's restroom where, in a bathroom stall, Marrero bought five suspected marijuana cigarettes from the patron for $5.00. No other patrons or employees were present when the sale occurred. Subsequent tests performed by the laboratory confirmed the cigarettes were in fact marijuana (Petitioner's Exhibit 7). On or about January 28, 1981, Officers Brock and Thompson visited the licensed premises of Tobacco Road in an undercover capacity and seated themselves next to Peter Aitken, who was off-duty that evening, and who appeared to be in an intoxicated state. Peter left the premises with Thompson to go to his automobile to smoke a marijuana joint. The automobile was parked on a public street in front of the lounge. Although Thompson was ultimately able to purchase a bag of marijuana from Peter for $35, the transaction occurred off the licensed premises and was beyond the dominion and control of the licensee. The corporate owner of Tobacco Road is Neil Katzman, a former police officer with the City of Miami. Prior to purchasing Tobacco Road, he owned and operated a licensed lounge and package store. Katzman takes an active role in the management of the lounge, including such diverse activities as maintenance work, greeting customers, occasionally tending bar and taking inventory. However, because of the long hours of operation (9:00 a.m. - 5:00 a.m. daily) it is impossible for him to be on the premises at all times. For this reason, he has hired a manager to whom he recently delegated authority to hire and fire employees. Katzman has a strict policy of employees not using or distributing illegal drugs. Violation of this rule results in immediate dismissal of the errant employee. Prospective employees are personally counseled on the no-drug policy of the management before they are hired and are reminded of this policy periodically. Polygraph tests have been given since 1978 to employees, including the manager, to determine whether they use or sell drugs, have stolen money, given away free drinks or engaged in any other prohibited activities. They are specifically asked if they have sold or delivered drugs on the premises, and whether they have seen other employees do so. "Numerous" employees have been fired as a result of taking such tests. Indeed, Chris Najdul, a bartender, was fired a week before the undercover operations were made known to Katzman for admitting to the use of narcotics on the premises. The no-drug policy of management has been effective. This is evidenced by the fact that no drugs were obtained from employees during the period in question despite numerous efforts by undercover agents to purchase narcotics from them. It is also a strict policy of the Respondent that if patrons are seen with narcotics on the premises, they are asked to leave. Katzman himself periodically checks the restrooms and patio to see if patrons are using illegal drugs. Other than the deliveries and sales described above, the undercover agents did not witness any employee or patron using, selling or in possession of any suspected narcotic on the licensed premises. Respondent has never been cited or warned about any beverage law violation in this or any previous establishment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Counts I and II of the Notice to Show Cause be DISMISSED. DONE and ORDERED this 6th day of July, 1981, in Tallahassee, Florida DONALD R. ALEXANDER 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 6th day of July, 1981.
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
Findings Of Fact Respondent is Alice Waldo, holder of Alcoholic Beverage License No. 45- 00293, Series 2-COP, for a licensed premises known as the SILVER DOLLAR CAFE located in Lake County, Florida. On or about February 4, 1989, an investigator employed by Petitioner entered the licensed premises of Respondent. While in Respondent's facility, the investigator observed several patrons smoking a substance, which by its smell and usage, he believed to be marijuana. The investigator then met with a patron, ordered a small quantity of crack cocaine and handed the patron some money for the forthcoming purchase. The patron then asked Respondent to hold the money while he left the premises to retrieve the controlled substance from his automobile. Shortly thereafter, the patron returned with the cocaine. The investigator showed the substance to Respondent's daughter, who had taken her mother's place at the bar. The purpose of displaying the drug to the proprietor, or the proprietor's daughter in this instance, was to later illustrate that Respondent condoned the use and sale of the drug in connection with her licensed premises. A field test by the investigator and a later laboratory test confirmed the identity of the substance purchased as crack cocaine. Petitioner's investigator again entered Respondent's facility on or about February 10, 1989. On this occasion, the investigator purchased a quantity of marijuana from a female patron, then took the substance over to the bar where he proceeded to roll a marijuana cigarette in the presence of Petitioner. At no time did Petitioner inform the investigator that controlled substances were not allowed on the licensed premises. Upon later laboratory analysis, the substance was confirmed to be marijuana. Upon leaving Respondent's facility on February 10, 1989, Petitioner's investigator met an individual within 10 feet of the front door of the premises who sold him a quantity of a substance later determined by laboratory analysis to be crack cocaine. On or about February 24, 1989, Petitioner's investigator entered Respondent's facility. On the front porch of Respondent's facility, the investigator purchased a quantity of a substance later determined by the investigator's field test and a subsequent laboratory analysis to be crack cocaine. After completing the purchase of the substance, the investigator went inside the facility, placed the material on the counter and recounted to Respondent that it had just been purchased on the front porch. Respondent made no reply to the investigator's announcement and, instead, complied with his request for change for a $20 bill. Upon receipt of the change, the investigator wrapped the crack cocaine in a $1 bill in Respondent's presence. On February 28, 1989, Petitioner's investigator again entered Respondent's facility. He approached a black female named "Lilly" and gave her $20 for the purchase of crack cocaine. However, after the lady accepted the $20 and left to retrieve the cocaine, she did not return. The investigator complained to Respondent that "Lilly" had failed to deliver the drug to him. The investigator also told Respondent that the lady could keep the $20 if Respondent would get him some of the drug. At that time, Respondent referred the investigator to a group of three male patrons on the front porch of the facility who appeared to be smoking marijuana. At no time during this incident did Respondent take any steps to prevent the use of any controlled substances on the licensed premises. Subsequently, Petitioner's investigator returned to Respondent's facility on or about March 4, 1989. He purchased a beer and went outside to the front porch of the facility. He observed a number of furtive transactions where currency was passed between certain individuals. He noticed Respondent go to one of the automobiles in the facility parking lot, get into the automobile, engage in conversation with the occupants and shortly thereafter emerge from the automobile. Respondent went back into the facility. The investigator approached a black male and gave him $20 for some crack cocaine. The black male took the investigator's money, then went directly to the automobile where Respondent had been previously. He returned shortly thereafter to the investigator with two pieces of a substance which later tested positive, via field test and laboratory analysis, as cocaine. During another visit to Respondent's facility on or about March 9, 1989, Petitioner's investigator observed a patron rolling what appeared to be marijuana cigarettes in Respondent's presence. While Respondent took no action to prohibit the use or possession of the apparently controlled substance, she did get her coat and leave shortly after the investigator's arrival. On or about March 11, 1989, Petitioner's investigator reentered Respondent's facility. The investigator purchased a small quantity of crack cocaine from a black male on the front porch of the facility. The investigator then took the controlled substance inside the building and displayed it to Respondent, telling her that he had just obtained the drug on the porch. Respondent asked the investigator if he was going to smoke the drug, and he replied yes. Later, a field test and laboratory analysis confirmed the drug to be cocaine. On or about March 17, 1989, Petitioner's investigator visited Respondent's facility. This time the investigator purchased a small quantity of a drug on the front porch of the building which, upon subsequent field test and laboratory analysis, was confirmed to be cocaine. After completing the purchase, the investigator took the substance inside and showed it to Respondent. Later in the evening, the investigator engaged Respondent in conversation on the front porch and related to her that he had observed numerous drug transactions taking place in her facility. Respondent smiled in acknowledgment of the investigator's statement and replied that she certainly hoped he was not a policeman. He told her that he was not a policeman. Respondent took no action to prohibit further use or transactions relating to drugs on the premises.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered revoking Respondent's beverage license bearing number 45-00293, Series 2- COP. DONE AND ENTERED this 13th day of June, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1989 APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-10. Addressed. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: EDWIN R. IVY, ESQUIRE BOX 3223 ORLANDO, FLORIDA 32810 THOMAS A. KLEIN, ESQUIRE DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007 STEPHEN R. MACNAMARA, SECRETARY DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007 LEONARD IVEY, DIRECTOR DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007
Findings Of Fact Respondent, Everett R. Rogers d/b/a Circus Bar (Respondent), has been licensed by Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), to sell alcoholic beverages under License No. 39- 602, Series 2-COP, for licensed premises located at 1118 West Kennedy Boulevard, Tampa, Florida, at all times pertinent to this case. Respondent's most recent license expired by its terms on September 30, 1985. Respondent voluntarily closed the business operated under his license on or about February 2, 1985. On or about February 2, 1985, Respondent initiated personal bankruptcy proceedings which encompassed the business which he was operating at the licensed premises. The licensed premises and Respondent's license have been turned over to Respondent's trustee in bankruptcy. On February 2, 1984, three marijuana cigarettes were possessed, sold and delivered at the licensed premises with the knowledge of Respondent's bartender, Bobby Warner.2 On February 3, 1984, the licensed premises were visited by a person named Melvin Stusse and undercover police officer Paul Miller for the purpose of the sale of cocaine, although no sale took place. On February 3, 1984, three grams of marijuana were possessed, sold and delivered at the licensed premises. On February 3, 1984, undercover police officer Thomas Kinsella possessed marijuana on the licensed premises with the knowledge of bartender Warner. Kinsella asked Warner for something in which to place a baggie of marijuana, and Warner took Kinsella to the stockroom to give him a paper clip box for that purpose. On February 6, 1984, bartender Warner and patrons of the licensed premises gambled on the pool table in the licensed premises. On February 8, 1984, the sale of eight marijuana cigarettes was negotiated at the bar in the licensed premises but the delivery took place outside the premises and there was no evidence that the marijuana was possessed in the licensed premises. On February 9, 1984, three marijuana cigarettes were sold, delivered and possessed at the licensed premises with the knowledge of Respondent's manager, Joan Sammons. On February 13, 1984, the sale of approximately two and one-half grams of marijuana was negotiated at the licensed premises with the knowledge of bartender Warner. The marijuana was delivered outside the licensed premises, and there was no evidence that marijuana was possessed on the licensed premises. On February 24, 1984, six marijuana cigarettes were sold, possessed and delivered on the licensed premises with the knowledge of manager Sammons. On February 28, 1984, approximately two and one-half grams of marijuana were sold, possessed and delivered on the licensed premises with the knowledge of bartender Warner. On March 5, 1984, bartender Warner possessed, sold and delivered five marijuana cigarettes on the licensed premises. On March 6, 1984, manager Sammons sold, possessed and delivered approximately two grams of marijuana on the licensed premises. On March 7, 1984, manager Sammons purchased $50.00 worth of USDA food stamp coupons for $25.00 on the licensed premises. On March 19, 1984, manager Sammons purchased $150.00 worth of USDA food stamp coupons for $75.00 on the licensed premises. Also on March 19, 1984, four marijuana cigarettes were possessed, sold and delivered on the licensed premises with the knowledge of manager Sammons. On March 21, 1984, approximately 1.2 grams of marijuana were possessed, sold and delivered on the licensed premises. It was not proved that any of Respondent's employees were aware of this transaction. On March 30, 1984, Respondent's bartender, Steve Keller, possessed, sold and delivered approximately three and one-half grams of marijuana on the licensed premises. Manager Sammons also knew about this transaction. Respondent had a policy against illegal drug activity and gambling on the licensed premises. He enforced the policy when he was on the licensed premises. Respondent posted signs prohibiting gambling and told employees that they should evict patrons suspected of illegal drug activities or gambling. But Respondent did little or nothing to ensure that his policies were followed evenings and weekends when he was not present at the licensed premises. Respondent performed no background checks on his employees and continued to employ Sammons as his manager although he knew she had been arrested. Respondent had no written employment application or written instructions for his employees. Respondent did not polygraph his employees.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking alcoholic beverage license number 39-602, Series 2-COP, held by Respondent, Everett R. Rogers d/b/a Circus Bar, 1118 W. Kennedy Blvd., Tampa, Florida. RECOMMENDED this 19th day of December, 1985, in Tallahassee, Florida. L LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1985.
Findings Of Fact At all times material hereto, Respondents, Alejandrina Mora and Felix Aristides, held alcoholic beverage license number 23-4816, series 2-APS, and 23- 8295, series 2-COP, for the premises known as Las Tunas Market and Cafeteria, 628-30 6th Street, Miami Beach, Florida. In March 1988, Petitioner, Division of Alcoholic Beverages and Tobacco (DABT), in conjunction with the Miami Beach Police Department (MBPD), began a narcotics investigation at the licensed premises. Previously, Sergeant Tom Hunker and Detective Walter Campbell of the MBPD had made several drug arrests at the licensed premises, and had warned the owners to stop such activities on their premises or their licenses would be subject to revocation. On March 8, 1988, DABT Investigator Oscar Santana, operating undercover, entered the licensed premises. During the course of his visit, he observed a male patron known as Junior sell what appeared to be rock cocaine to several persons both on and off the licensed premises. After observing the foregoing transactions, Investigator Santana approached Junior and asked him if he had any more to sell. In response, Junior handed Santana two crack cocaine rocks, for which Santana paid Junior $20. This transaction occurred in plan view of respondents' employee Gonzalo. 1/ On March 9, 1988, Investigator Santana returned to the licensed premises. Upon entering, Santana was approached by Junior who inquired as to whether he would be interested in purchasing some more cocaine. Santana responded affirmatively, and handed Junior $20. Junior then left the premises for a short time, and when he returned handed Santana two crack cocaine rocks. This transaction occurred at the counter, and in plain view of respondents' employee Gonzalo. After the foregoing transaction, Investigator Santana was approached by another patron known as Paul, who inquired whether he would be interested in buying some cocaine. Santana agreed to buy from Paul if he brought it to the licensed premises. Paul left the premises, returned shortly thereafter, and met Santana just outside the door. At that time, Santana paid Paul $30 in exchange for two crack cocaine rocks. During the course of this transaction, respondents' employees Ricky and Gonzalo were nearby. On March 10, 1988, Investigator Santana returned to the licensed premises. During the course of his visit, Santana met with a patron known as Charlie, who offered to sell him some cocaine. Santana handed Charlie $20 and observed him leave the premises, walk across the street, and hand the money to another individual. Shortly thereafter, Charlie returned to the licensed premises and delivered the cocaine rocks to Santana. The exchange between Santana and Charlie took place in plain view and in the presence of respondents' employee Nene. On March 17, 1988, Investigator Santana returned to the licensed premises. Also on the premises that day were DABT Investigators Jenkins and Elkin, operating separately from Santana to provide backup for him. As he entered the premises, Santana seated himself with Junior and respondents' employee Ricky at a table by the front door. There, in front of Ricky, Santana purchased a cocaine rock from Junior for $20. Ricky, suspicious of Jenkins and Elkin, two female non-latins, warned Santana to be careful because the two females were police officers. On March 18, 1988, Investigator Santana returned to the licensed premises. Investigators Jenkins and Elkin, again operating separately from Santana, were also on the premises that day. Upon entering the premises, Santana was approached by a patron known as Reyna who inquired whether he was interested in purchasing some cocaine. Santana responded yes, handed Reyna $25, and Reyna left the premises. After Reyna left the premises, Santana seated himself at the front table. When Reyna returned, she sat down at the table with him and delivered, above the table, two cocaine rocks. This transaction took place in front of respondents' employee Ricky, who again warned Santana to beware of the police officers (Investigators Jenkins and Elkin). Later that day, Santana gave Junior $20 to purchase cocaine for him. When Junior delivered the rock cocaine to Santana it was done in plain view and in the presence of respondents' employees Gonzalo and Ricky. During the course of this visit to the premises, Investigators Jenkins and Elkin, also undercover, were seated separately from Santana. At some point they were joined by a male patron who later gave them two marijuana cigarettes. The investigators retired to the women's bathroom and burnt a marijuana cigarette to see what, if any, response it would bring. While one of respondents' employees entered the bathroom after they left, the aroma of marijuana brought no response. On March 21, 1988, Investigator Santana returned to the licensed premises. Upon entry, Santana, respondents' employee Gonzalo, and two black latin male patrons were the only persons present. These patrons approached Santana and inquired if he was interested in purchasing marijuana. Santana responded yes, and paid the men $20 for approximately one ounce of marijuana. This transaction occurred in plain view, and in the presence of Gonzalo. On March 24, 1988, Investigator Santana returned to the licensed premises. During the course of his visit he met with Junior inside the bathroom, and purchased two cocaine rocks for $40. On March 25, 1988, Investigator Santana returned to the licensed premises. Santana was approached by Junior who inquired whether he was interested in purchasing some cocaine. Santana handed Junior $40, and Junior left the premises to get the cocaine. Upon his return, Junior placed the cocaine rocks on the counter in front of Santana. This transaction occurred in plain view, and in the presence of respondents' employees Gonzalo and Ricky. All of the events summarized in the proceeding paragraphs took place at the licensed premises during normal business hours. At no time did respondents' employees express concern about any of the drug transactions. In fact, the proof demonstrates that all of the employees knew that marijuana and cocaine were being sold on the licensed premises on a regular, frequent and flagrant basis. Neither respondents, who were on notice of such activities, nor any of their employees, took any action to prevent, discourage, or terminate the sale of any controlled substance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order revoking alcoholic beverage license number 23-4816, series 2-APS, and alcoholic beverage license number 23-8295, series 2-COP, issued to Alejandrina Mora and Felix Aristid d/b/a Las Tunas Market and Cafeteria, for the premises located at 628-30 6th Street, Miami Beach, Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of April, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1988.
The Issue Whether or not on or about November 1, 1976, Stella Lee Hill, licensed under the beverage laws, and/or her agent, servant, or employee, to-wit: Jacob Hill, did sell or cause to be sold or delivered intoxicating liquors, wines, or beer to-wit: one-half pint labeled Seagrams Extra Dry Gin, in Santa Rosa County, that which has voted against the sale of such intoxicating liquors, wines or beer, contrary to Section 568.02, F.S.
Findings Of Fact Stella Lee Hill is the holder of license no. 67-129, series 1-COP, held with the State of Florida, Division of Beverage. Stella Lee Hill has held this license from October 1, 1976, up to and including the date of hearing. This license is held to operate at Munson Highway, Route 6, Box 190, Milton, Florida, and to trade as Vonnie Branch Tip Inn, the trade name of the licensed premises. A series 1-COP license is a license which entitles the licensee to make beer sales for consumption on the premises. Santa Rosa County, Florida through its voters has determined that only beer may be sold in that county, of a weight 3.2% alcoholic content. No other form of alcoholic beverages may be sold in Santa Rosa County. On November 1, 1976, around 7:00 p.m., Central Standard Time, agent Roy Cotton, of the State of Florida, Division of Beverage met with an undercover agent, one Robert Lewis. Robert Lewis was not shown to be a member of any law enforcement agency. The meeting took place on the east side of Milton, Florida, in an open field. At that time a discussion was entered into between Cotton and Lewis on the subject of making an alcoholic beverage purchase of unauthorized alcoholic beverages, at the Respondent's licensed premises. Cotton search Lewis to make sure that he did not have any money or alcoholic beverages on his person and also search Lewis' automobile to insure that no alcoholic beverage was in that automobile. After making such search, Cotton provided Lewis with $5.00 in United States currency to make the aforementioned purchase. Lewis drove to the licensed premises in one automobile and Cotton in another. Cotton stationed himself so that he could see the licensed premises and the surrounding buildings, but did not go in the licensed premises. Lewis entered the licensed premises and while in the licensed premises spoke with the brother of the licensee, one Jacob Hill and asked for a half pint bottle of liquor. Jacob Hill left the licensed premises and went to an adjacent house which was the home of the mother of the licensee and returned to the licensed premises and presented Lewis with a one half pint bottle of Seagrams Extra Dry Gin. Lewis paid Jacob Hill for the half pint bottle of Seagrams Extra Dry Gin, a liquor containing more than 3.2% alcohol by weight, and left the premises. This sale was consummated in the presence of Stella Lee Hill, the licensee. The facts as established, show that intoxicating liquors were sold by an agent of the Respondent, to-wit: Jacob Hill, in a county where the voters had decided against the sale of specific intoxicating liquors. Therefore, the Respondent has violated Section 568.02, F.S.
Recommendation It is recommended that the license no. 67-129, series 1-COP, held by the Respondent, Stella Lee Hill, be suspended for a period of 30 days. DONE AND ENTERED this 13th day of June 1977 in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Charles T. Collett, Esquire Division of Beverage The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Stella Lee Hill Munson Highway Route 6, Box 190 Milton, Florida
Findings Of Fact At all times pertinent to the allegations in the Notice to Show Cause herein, Respondent, Grand Saloon Tavern, Inc., was the holder of a valid alcoholic beverage license number 15-00028, Series 4-COP issued by Petitioner (DABT) to Respondent for the Inner Room located at 74 North Orlando Avenue, Cocoa Beach, Florida. On the evening of April 24, 1984, Beverage Investigator Gloria Smith and Special Agent Terry Altman, both in an undercover capacity, entered Respondent's licensed premises and took a seat near the disc jockey's booth. Smith asked an employee of the bar, a dancer named Janice Decker, who used the stage name "Angel," whom she had met weeks previously and established a friendship with, if Angel could get her some cocaine. Angel agreed and made arrangements for some cocaine, which she told Smith and Altman would arrive in about a "half hour." Somewhat later, Angel came up to the two agents where they were sitting in the bar, told them the cocaine had arrived, and received a $100 bill from Smith. Smith saw Angel engage in an exchange between Angel and the courier known to Smith as "Tommy" after which Angel came back to the agents' table and delivered to them a match box and told them it contained cocaine in two half-gram packages. When Angel left the table, Smith opened the match box and observed it contained two clear plastic bags which both had a white powder in them subsequently properly identified as cocaine. She took one of the bags out of the match box to check it. In Altman's opinion, the disc jockey saw her do this but that individual denies having done so. He contends that, given her position in the booth, with the lights adjusted as they are, he cannot see the people sitting at the tables below him and he knows nothing of any sale of drugs by Angel to Smith. Smith and Altman had gone into the Inner Room as a part of an ongoing investigation of several establishments to see if they could purchase drugs in them. Smith had met Angel at the Show Bar, another Cocoa Beach bar, in early March when Angel, who was working there at the time, did a personal dance for Agent Altman. After that, she made several purchases from Angel at the Show Bar using the cover story that she the, widow of an older man, who had been left a good income, and was now out looking for some "fun" with some younger man of whom Altman was supposed to be one. She said she wanted the cocaine for recreational use. The first time she want into the Inner Room she went in part to meet people and see the atmosphere of the place. On the first occasion, when she asked for Angel, Angel was not there. Smith returned to the Inner Room on May 10, 1984, this time in the company of United States Drug Enforcement Agency (DEA) Special Agent Eslingor and the two of them sat along the east wall of the lounge. On this occasion, she met Mr. Johnson, one of the owners who introduced her to the other owner, Mr. Crockett. The licensed premises is divided into three general areas--a small lounge, a larger lounge, and a game room. The east wall, where Smith sat, is in the area near the disc jockey's booth. Smith spoke with Angel about Angel's inability to deliver the cocaine she had promised on a previous occasion and asked her if she knew of anyone else who might have any cocaine for sale. When inquiry by Angel failed to reveal any available sources that evening, Smith gave Angel $100.00 for 1 gram of cocaine to be delivered the next night. Just about that time, Smith observed another dancer, Danielle, going into the restroom and followed her in. She went after Danielle because, based on information she had received from a third dancer, Deosia, she thought Danielle might have some for sale. When she got into the restroom, Smith asked Danielle if she had any cocaine to which Danielle replied she had only a little in her personal stack, of which she could give Smith a "line." Danielle then poured some white powdery substance, subsequently identified as cocaine, from a plastic triangular bag into a cellophane cigarette wrapper and handed it to Smith. Smith does not recall if Danielle asked for payment, but when Smith handed her $5.00 and when asked if that was enough, Danielle replied, "That's what I usually get." When Smith and Eslinger went back the following night, approximately 11:15 p.m., Angel, to whom Smith had given $100.00 the previous evening, told her that she had the cocaine Smith had asked for. She then delivered the substance, later identified as cocaine, and stated that she had taken a "line" for herself out of it. Smith agreed to that. Smith does not recall if the cocaine was delivered in a matchbook or in a folded $1.00 bill. In either case, however, consistent with her routine practice, upon delivery she checked the delivered substance out in the open by opening the package, tapping the enclosure on the table, and examining it, a procedure, he feels, that takes about 10 seconds. On this occasion, as on all other occasions, when she was in this lounge, she sat in an area off to the side of the bar which is visible from all other areas of the bar except the entrance. There are also other tables there as well. On May 25, 1984, Smith, Altman and Eslinger went into the Inner Room, actually at about 12:15 a.m. on May 28. On this occasion, Angel told Smith she had gotten rid of the cocaine she had promised to get for Smith because she had fronted the money for it. However, she stated she would have her husband bring some more, and later the same evening came back to the table where Smith and the others were sitting, sat down with them, and handed Smith a folded $1.00 bill for which Smith gave her $100.00. From this $1.00 bill, Smith took a small plastic bag which contained a substance later identified as cocaine. Not all cocaine sales ware arranged at the licensed premises, however. On June 4, 1984, Agent Smith phoned Angel at home and suggested that Angel get her some cocaine and deliver it at the Inner Room. She thereafter took $100.00 to Angel at her home and made the definite arrangements for the delivery of the cocaine at the licensed premises. When Smith, Altman, and Eslinger went to the Inner Room at approximately 9:30 p.m. that evening, Angel came over to them and delivered a cigarette package to Smith. After Angel left, Smith took a plastic bag from the cigarette pack and checked it on top of the table so that it could be seen by other patrons and Hank, the manager, was standing over near the disco booth talking with two men who appeared to be Cocoa Beach police officers. Smith cannot say that her actions were seen by these people, but the package contained what was later identified as cocaine. Smith was not arrested by these police officers even though they did not know she was an undercover agent. This leads to the conclusion that her "checking out" of the deliveries was not so open or notorious as, by Smith's own admission, had they seen what she was doing, they probably would have had cause to arrest her. When Smith first bought cocaine from Angel in the Inner Room, she had already made two or three purchases from her at another bar in the area and it was always Smith who made the purchases. She also paid Angel to "dance" for her "boyfriend" Altman several times and for each "dance" paid Angel $3.00. Over the period of the investigation, including this establishment and others, she got to know Angel and liked her. In doing so, she built up Angel's trust in her which Angel contends was the only reason she sold Smith cocaine. Smith purchased from only Angel and Danielle at the Inner Room. There is no evidence of other drug sales by other employees to other agents nor does Smith have any personal knowledge of any drugs on the premises except for those forming the bases of the allegations here. Altman played the part of the hanger-on sponging off a rich lady consistent with Smith's cover story. He was introduced to one of the co-owners, Mr. Johnson, on one occasion but had no conversations with him or anyone else regarding drugs. He made no drug purchases because his DATF investigation related to firearms. Though he was in the Inner Room quite a few times with and without Smith, he never saw any independent opportunity to buy drugs except for Smith's buys and he has no personal knowledge of anyone other than Angel or Danielle who had drugs for sale or were dealing drugs there. While in the Inner Room, Smith had several general conversations with owner Johnson during which she says she may have mentioned her "mid-life crisis" cover story. She denies any conversations with him, however, in which she tried to entice him into using drugs with her or when he said he did not use drugs or permit them on the premises. She does not recall them discussing what steps he took to keep drugs out. She did not notice any posted rules or notices regarding drugs. On each occasion Smith was in the Inner Room, either one or both of the owners were there in addition to a manager. She does not know what this latter individual's responsibilities were. There were also always men at the door but she does not knew what their function was other than to collect the entrance fee. Angel, whose real name is Janice M. Decker, was employed at the Inner Room as a dancer. She had just returned there prior to April 24, 1984, after working at the Show Bar, another club in Cocoa Beach, for 9 months. Prior to that, she worked at the Inner Room for 3 1/2 years. When she was first hired, she was instructed by owners that their rules included no drugs, no alcohol, and no solicitation for prostitution on the premises and during the first 3 1/2 years she worked there, she never had any drugs or saw any there. She first met Agent Smith at the Show Bar in July 1983 and developed a friendship with her. Smith did not make any requests for cocaine until their fourth meeting. By this time, Angel had accepted Smith's cover story and thought she was a nice lady. They had talked of going shopping together and of going out to dinner with their respective man as couples. In fact, Smith gave Angel her home phone number, but whenever Smith would call Angel, she would say she was out of town. Smith's first request for cocaine from Angel came at the Show Bar. Angel contends that even though she did not use cocaine and did not have any, because of her friendship for Smith and the fact that she felt sorry for her, she agreed to try to get some from someone. She found a source and whenever she bought any for Smith, she would deliver all she got and keep more for herself. She also felt close enough to Smith to front the money for these purchases and each time Smith requested cocaine, the purchase details ware always secondary to social conversation and "girl talk." When Angel quit the Show Bar and went back to the Inner Room, though she had fears about bringing drugs into the premises because she knew the owners' anti-drug policy, she did so because: (1) she knew her reputation there was as a "straight," and (2) she felt sorry for Smith and wanted to help her. As a result, she deceived her employers. On several of the occasions alleged, Angel didn't want be deliver on the premises but Smith insisted she deliver there. Their agreement was to meet outside for the transfer on two occasions, but each time Smith was not there and since Angel had to go to work, she had to go inside and when Smith showed up deliver there. Aside from the sales to Smith, Angel contends she has never had any drugs inside the Inner Room, nor has she ever seen any other employee with it in their possession there. She got the cocaine from a supplier she knows as Terry who she would meet at McDonald's-- never her husband. When she would get cocaine for Smith, she would keep it in her work purse with her in the lounge and not in her street purse in her locker. Neither she nor her locker has ever been searched for drugs. In her opinion, the licensees run a legitimate operation. They are strict about people who break the rules and seem to know what is going on there. Either one or both owners are on the premises every night along with two security people. This opinion is shared by other club employees like the dancers Angie and Danielle. Angie worked for the licensees for 11 months before they closed on June 8 and never saw any drug dealings or employees with drugs on the premises. Customers have asked her about drugs on various occasions but she always refused to get involved. When she was hired, she was advised that the club rules included no use or sale of drugs and called for the employee to be fired if this rule was violated. Danielle, who has worked there for 9 or 10 months, had the same understanding of the rules. When she was hired, she was given a copy of the posted rules and the owners have periodic meetings of the employees at which they are reminded of the rules regarding no alcohol, no drugs, no prostitution, and the need to report any infractions. She knew that a violation of those rules would result in termination. Regarding the sale to Smith, Danielle admits the transfer, but contends she at first refused and gave Smith the cocaine only after Smith said it was for her boyfriend who needed it badly. She didn't ask Smith for any money, intending it to be a gift even though she had never met Smith before. After the transfer, Smith threw her $5.00 and left. She is concerned about her job even though she has not been told she was fired. The disc jockey, Ken Carlin, who has worked at the Inner Room for 4 years, relates much the same story regarding the owners' efforts to keep drugs out as do the dancers. There are frequent meetings of all personnel regarding illegal activities and anyone caught involved in them is fired. Whereas the dancers disclaim any knowledge of any employees involved in drugs, Mr. Carlin, however, indicates at least one a month is fired. This must be for other reasons, however, because, according to him, he has seen drugs on the premises only once about a year ago and had fired the dancer who had them immediately. In addition to his job as disc jockey, his responsibilities also include policing the premises on a frequent basis and this includes inspecting the dancers' dressing room which he does about three times each night. When he does these inspections, he does not go into the house, however. In addition to the owners, the managers and Carlin, all of whom exercise the responsibility to check the premises for drugs, Gary O. Greenwald, one of the doormen and bouncers, also patrols the inside for violations. He has bean briefed regarding certain known drug users or dealers who are barred from entering the club. He has also been instructed to throw anyone suspected of possessing drugs out and if anyone is caught with it, he is to hold that person and call the police. During the three months he has worked there, ha has not observed any drugs on the premises. The Inner Room's reputation with at least a portion of the Cocoa Beach police force is high. William McDonald, who has been an officer for 11 years, has visited the licensed premises two or three times a week for 11 years and has never, at any time, seen any drug activity there. He has been called there by the owners several times (never for drugs) and has made some arrests for such offenses as drunk and disorderly, firearms, and assaults. In his opinion, none of the bars in the area are completely drug-free, but comparing this bar with others in the area, it is run better because the owners are more conscientious. Mr. Johnston has talked with him repeatedly about the effort made to keep drug activity out of the bar and considering the fact that the owners are not police, he feels they do a good job of it. So, too, does David E. Schoch, also a Cocoa Beach Police Officer who has gone into the Inner Room three to four times a week on duty and at least one night a week off duty for the past several months. In all that time, he has never seen drugs on the premises except one time when he was called there on duty. By the time he arrived, one of the owners and the bouncer had the situation under control and had confiscated some cocaine. He finds this bar to be one of the better and safer bars in the area due to the preventive actions of the management. He is convinced it is one of the more drug-free bars in the area due primarily to these efforts and considers that, considering their lack of training, the owners do a good job of it. Lamar L. Johnston has been a co-owner of the Inner Room with Jesse Crockett for 8 1/2 years. During that time, the bar has never been cited for any infractions of the beverage laws. He has what is to him a lot of money invested in this bar and to keep from losing it, he has worked hard and been through in indoctrinating his people on the no drug policy. He has published a list of employee rules which are made known to every employee at monthly meetings and are posted in the dancers' dressing room, behind the bar, and in the disc jockey booth. He keeps tabs not only on his employees but also on his clientele and if he sees someone in the bar who he knows to be involved in any type of illegal activity, he advises his bouncers to keep that person out. He personally patrols the bar on a regular basis each night and has his disc jockey, managers, 2 bouncers, and security men do the same. He requests the Police Department to come in on duty and has given off-duty policemen passes to come in without paying the admission charge. With the exception of the one occasion described by Officer McDonald, he has never seen any drugs in his club. With regard be the personnel he hires, he keeps tabs on all dancers in the area including as far away as Orlando and Daytona Beach, by real and stage names, who have been arrested or fired for prostitution or drugs. If one of these apply for work, he will not hire them. However, he contends he cannot prevent an employee from breaking a rule if that person is bent on doing so. All he can do is publicize the rules and warn his employees of the consequences of breaking them. He checks the dressing room six times a night and, recognizing that thirty pairs of eyes are better than one, put into effect the rule relating to firing employees who have knowledge of but fail to report drug activity. His bar is not brightly lighted because, in his experience, bar patrons do not like a brightly lighted bar. Because of that, he tries to patrol as much as possible. On top of that, his lounge caters to a higher element clientele such as engineers from Cape Kennedy Space Center, Administrators from Brevard Community College, and professional people. His bouncers are instructed to keep the lower element out and a dress code is enforced.
