Findings Of Fact Based on the stipulated record described above, I make the following relevant findings of fact: The Petitioner currently holds alcoholic beverage license number 11-74 SRX, series 4-COP. The currently licensed premises include all of the rooms within Petitioner's clubhouse. On or about September 14, 1984, the Petitioner filed an application in which it requested that its licensed premises be extended to include all of the golf course which is adjacent to the clubhouse. The Petitioner's golf course consists of approximately 262 acres. The Petitioner is the owner of and has exclusive possession and control over all of the premises it seeks to have included in its license. The area Petitioner seeks to have included in its license includes other buildings in addition to the clubhouse building. The Petitioner does not hold a golf club license. The Petitioner does not by its application propose to have more than three separate rooms or enclosures in which permanent bars or counters will be located. A licensee is required to designate the licensed premises in a sketch included in or attached to the application for license so that the Division of Alcoholic Beverages and Tobacco can determine the area over which they have regulatory authority. The Division of Alcoholic Beverages and Tobacco has, on some occasions, granted applications for series 4-COP special restaurant licenses which included in the sketch of the licensed premises an uncovered patio area immediately adjacent to the covered portion of the restaurant building, which patio areas were used by the restaurant as an area for service of food and beverages. The Division of Alcoholic Beverages has not presented any reason for denying the Petitioner's application other than the opinion that the existing statutory provisions do not authorize the extension sought by the Petitioner. The Petitioner's alcoholic beverage license was issued pursuant to a special act of the Legislature. Chapter 70-574, Laws of Florida. Following receipt of notice that the Division of Alcoholic Beverages and Tobacco proposed to deny its application, the Petitioner filed a timely request for formal proceedings.
Recommendation For all of the foregoing reasons it is recommended that the Division of Alcoholic Beverages and Tobacco issue a Final Order denying the Petitioner's application to extend the area of its licensed premises. DONE and ORDERED this 25 day of June, 1985, at Tallahassee, Florida. Hearings Hearings MICHAEL M. PARRISH Hearing Officer Division of Administrative The Oakland Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative this 25th day of June, 1985 COPIES FURNISHED: Sandra Stockwell, Esquire Department of Business Regulation 725 S. Bronough St. Tallahassee, Florida 32301 William Andrews, Esquire P.O. Drawer C Gainesville, Florida 32602 Howard M. Rasmussen Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 S. Bronough St. Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the issues herein, alcoholic beverage license No. 26-01841, Series No. 2-APS, was issued to Respondents, Frank D. and Estella S. Ryers, for their establishment known as the Big B Restaurant, located at 5570 Avenue B, Jacksonville, Florida. A 2-APS license permits the package sale only of beer and wine. It does not permit the consumption on the premises of beer, wine, or liquor. On March 27, 1983, Investigator Wendell M. Reeves conducted an undercover operation directed against the Big B Restaurant predicated upon reports received by Petitioner that Respondents were conducting sales of alcoholic beverages not permitted by the license at the licensed premises. In furtherance of that operation, Reeves utilized another beverage agent, Van Young, in an undercover capacity to make a controlled buy of an improperly sold substance from the licensees. Prior to sending Young into the licensed premises, Reeves searched Young to ensure that he, Young, had no alcoholic beverage or money in his possession. Satisfying himself that that was the case, he gave Young $15 in U.S. currency and sent him into the licensed premises to make the buy. Young entered the Big B Restaurant at 1:00 p.m. and came out 17 minutes later. When he came out of the licensed premises, Young came over to where Reeves was waiting and turned over to him a sealed 200 ml bottle of Fleishman's Gin. Young told Reeves that he had purchased the gin in the licensed premises from a black male whose description matched that of Respondent Frank D. Byers which is contained on Respondent's application for license. Respondent Frank Byers denies making the sale. On balance, however, there is little doubt it was Respondent who made the sale, especially in light of the fact that this same licensee was issued a letter of warning by the Division of Alcoholic Beverages and Tobacco in October 1981 for possession on the premises of an alcoholic beverage not permitted to be sold under the license. Young also stated that he purchased a second bottle which he consumed on the premises with another black male. However, this evidence was in the form of Reeves' report of what was told him by Young. As such, it is clearly hearsay and can be used only to corroborate or explain other admissible evidence. Therefore, as to the allegation regarding the consumption of the gin on the premises, since it is the only evidence of that offense, it cannot be used to support a finding of fact on that allegation. It may, however, be used to explain how Young got the bottle with which he was seen by Reeves to come out of the licensed premises. Several days later, on March 30, 1983, Reeves again entered the licensed premises, where he told Respondent Estella Byers he was there to inspect the site. She opened the cooler for him and he inspected the beer inside and the cigarettes. While he was doing that, however, he noticed her take a cloth towel and drape it over something behind the bar. He went over to it, removed the towel, and found that it covered a bottle of Schenley's gin. Mrs. Byers immediately said she thought it was her husband's, Respondent Frank Byers, but another individual present at the time, Sharon Thomas, said she had taken it from her brother, who was drunk, and had put it there. Again, as to Ms. Thomas' comments, they, too, are hearsay and can only serve here to explain or corroborate other admissible evidence. In any case, after Ms. Thomas made her comment, she was immediately contradicted by Respondent Estella Byers, who again indicated she thought the bottle was her husband's. In any case, at the hearing, Respondent Estella Byers contended she did not know it was there. On balance, Mr. Reeves' testimony that she covered it with a towel while he was inspecting and the evidence of the prior warning for an identical offense tend to indicate she did know it was there and that it was unlawful for it to be there. There is, however, no evidence to establish sufficiently the reason for its being there.
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the Emergency Order of Suspension; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: At all times material to this matter, the Respondent, Robert L. Seamans, held alcoholic beverage license no. 23-00987, series 4-COP, for the licensed premises located at 11425 S.W. 40th Street, Miami, Dade County, Florida, known as the Lucky Lady. Respondent, age 64, has held alcoholic beverage licenses in the states of New York or Florida since 1963. Respondent has never been charged or reprimanded for a beverage law violation until these proceedings. At all times material to this case, the Respondent employed a barmaid at the Lucky Lady who was known as "Stella." Also present at the Lucky Lady during relevant time periods was a drifter known to the bar patrons as "Tom". In exchange for food and/or the use of the bar kitchen, Tom assisted the barmaids by carrying out trash, stocking the beer cooler, or filling the ice bins. Although Tom was not an employee at the Lucky Lady, he, like many of the regular patrons, had unrestricted use of the Lucky Lady's kitchen area. Sometime prior to April, 1990, a bar located near the Lucky Lady was closed by the Department following an investigation and a determination that controlled substances were being either sold or possessed on the licensed premises. Respondent was aware of the action taken to close the local bar and was further aware that undesirable persons from that bar might attempt to patronize the Lucky Lady. Respondent had considered joining the Department's Responsible Vendors Program but did not. Respondent's policy was to exclude any customer suspected of improper conduct whether related to drugs or other inappropriate activities. To effect that policy Respondent maintained a "barred" list which listed those individuals either by name or description who were not welcome at the Lucky Lady. Employees were instructed to request any person on the barred list to leave the facility. In the event such person refused, the police were to be summoned. On numerous occasions not described below, patrons of the Lucky Lady have observed Respondent escorting persons from the bar who were suspected of, or were known to have exhibited, improper conduct. Respondent relied on his wife, Tanya, to assist him to monitor the interior areas of the Lucky Lady. It was Mrs. Seamans' custom to remain in the licensed premises throughout the evening hours and to watch for any improper conduct. If she observed anything suspicious, she would either report the activity to her husband or to an employee for further investigation and/or action. Unfortunately, Mrs. Seamans sustained a broken hip on April 29, 1990, and was unable to supervise the licensed premises after that date. The Respondent did not obtain a replacement to perform Mrs. Seaman's monitoring function. During May, 1990, Vincent Weiner, a law enforcement investigator employed by the Department, conducted an undercover narcotics investigation of the Lucky Lady. To effect his purpose, Mr. Weiner assumed the name "Vinnie Capio" and began to patronize the licensed premises. On May 5, 1990, Mr. Weiner and a confidential informant went to the Lucky Lady and asked Stella if cocaine were available. Stella directed the two men to the restroom. Once there, they proceeded to complete the transaction with Tom based upon the price which had been negotiated with Stella ($25.00). On this occasion, in exchange for the $25.00, Mr. Weiner received a clear baggie containing a substance which was later analyzed and found to be cocaine. On May 8, 1990, Mr. Weiner returned to the Lucky Lady and again inquired if cocaine were available for purchase. On this date, Stella went to the kitchen and returned with a packet which was exchanged with Mr. Weiner across the bar counter for $25.00. This packet was later analyzed to be cocaine. At all times when Mr. Weiner was seated at the bar counter, other patrons were also present at the counter during the course of the transactions. Mr. Weiner attempted to make a second purchase of cocaine on May 8, 1990. Similar to the prior transaction of that date, Stella went to the kitchen but returned with a written message for Mr. Weiner which she handed to him (instead of another packet). Tide message stated, "he's OUT he got rid of all of them already." Stella did not identify the "he" noted in the message. On May 15, 1990, Mr. Weiner purchased two packets of cocaine at the Lucky Lady. During the first transaction, Stella advised Mr. Weiner to enter the kitchen where he met Tom. Tom then took a packet from an envelope on the kitchen shelf and exchanged it for $25.00. Later in the evening, Mr. Weiner gave $25.00 to Stella while Tom removed another packet from the envelope and handed it to the investigator. This second exchange also took place in the Lucky Lady kitchen. Both of the packets purchased on this date were later analyzed and found to be cocaine. On May 18, 1990, the investigator returned to the Lucky Lady and purchased two packets from Stella and Tom. Again, the exchange took place within the kitchen and the amount for these transactions totalled $50.00. The substance obtained on this date was later analyzed and found to be cocaine. On May 22, 1990, Mr. Weiner was seated at the bar when Stella asked him if he would be needing anything that evening. The investigator placed $25.00 on the bar while Stella went to her purse (located behind the bar counter) and retrieved a packet which she then exchanged for the money. This transaction took place in front of the other patrons seated at the bar. Later in the evening, in the same manner as described above, Mr. Weiner purchased a second packet from Stella. Both of the packets obtained on this date were later analyzed and found to be cocaine. On May 29, 1990, Stella was again behind the bar at the Lucky Lady. On this date, Mr. Weiner negotiated for one packet (which she obtained from her purse located within the bar area) in exchange for $25.00. This packet was later analyzed and found to be cocaine. The Respondent was present within the premises at the Lucky Lady during at least one of the transactions described above. There is no evidence that Respondent was personally involved in the exchanges nor that he was aware of the sales. The Respondent does not dispute that the substance purchased by Mr. Weiner on each of the occasions described above was cocaine. During the course of the investigation Mr. Weiner observed video poker games located within the licensed premises. The games were coin operated and required the player to choose a hand for five card draw poker. By discarding any or all of his original hand, the player attempts to, by the chance of the game, receive a winning hand. The game awards points for Winning hands and subtracts points for losing hands. If a player accrues more points than he paid for, he finishes ahead of the machine. On May 22, 1990, Mr. Weiner finished playing the video poker game with a total of 36 points. That total was 16 more than he had originally purchased. Mr. Weiner consulted Stella regarding the results and she wrote his name and the point total on a piece of paper which she then placed near the cash register. On May 23, 1990, Mr. Weiner returned to the Lucky Lady and requested his "mail." He intended to obtain his winnings related to the video game he had played the day before. He received $9.00 which he believed was the amount he was due for accruing the 36 points. No other explanation as to why Mr. Weiner would receive $9.00 from the bar (except in connection with video game results) was suggested by either party. On May 31, 1990, an Emergency Order of Suspension was executed by the Director of the Division of Alcoholic Beverages and Tobacco. That order was served on the Respondent on June 1, 1990, and the licensed premises have been closed since that time. On June 1, 1990, an inspection of the Lucky Lady premises was conducted by agents of the Department. The Respondent had keys to the video poker games described in Paragraphs 16 and 17.
Recommendation Based on the foregoing, it is recommended that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order revoking the Respondent's alcoholic beverage license no. 23-00987, series 4-COP, for the premises located at 11425 S.W. 40th Street, Miami, Dade County, Florida. RECOMMENDED this 17th day of July, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-3447 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 3 are accepted. To the extent the drug transactions are outlined in findings paragraphs 7 through 13, the Department's paragraphs 4 through 12 are accepted; otherwise rejected as irrelevant. To the extent the video poker games are addressed in findings paragraphs 16 and 17, the Department's paragraphs 13-15 are accepted; otherwise rejected as irrelevant. Paragraphs 16 through 18 are accepted. But see also finding paragraphs 3 and 4. Except as addressed in finding paragraph 2, paragraph 19 is rejected as irrelevant. Paragraph 20 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 3 are accepted. Paragraph 4 is rejected as irrelevant, comment or argument not constituting a factual finding. Paragraph 5 is rejected as recitation of testimony. The video poker games were games of chance in that the machine, of its own design (not a player's choosing) dictated the hand received by the player. Paragraphs 6 through 9 are accepted. It is accepted that Respondent did not personally engage in the illegal sales recounted in the order; otherwise, paragraph 10 is rejected a irrelevant, argument or comment. Paragraphs 11 and 12 are accepted. COPIES FURNISHED: Henry A. Amoon Continental National Bank Building Suite 408 400 Southwest 107th Avenue Miami, Florida 33174 John B. Fretwell Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Stephen R. MacNamara Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the notice to show cause and, if so, what disciplinary action should be imposed.
Findings Of Fact At all times material hereto, respondent, Cesar J. Reyes, held alcoholic beverage license number 23-05034, series 2-COP, for the premises known as Busy Cafeteria Bar (the "premises"), located at 4601 West Flagler Street, Miami, Dade County, Florida. In November 1993, Special Agent Joe Lopez of the Division of Alcoholic Beverages and Tobacco, together with the assistance of a confidential informant (CI), began an undercover investigation of the premises. Such investigation was predicated on information Special Agent Lopez had received from federal authorities which indicated that narcotics were being sold upon the premises. On December 1, 1993, Special Agent Lopez and the CI entered the licensed premises. While inside the premises, the CI met with respondent and purchased a small plastic package containing 1/2 gram of cocaine for $30.00. On the same occasion, Special Agent Lopez met with respondent, and he also purchased a small plastic package containing 1/2 gram of cocaine for $30.00. 1/ On December 2, 1993, Special Agent Lopez and the CI returned to the licensed premises. While inside the licensed premises, they again met with respondent and purchased a small plastic package containing 1/2 gram of cocaine for $30.00. On December 7, 1993, Special Agent Brian Weiner of the Division of Alcoholic Beverages and Tobacco served respondent with an emergency order suspending his alcoholic beverage license, and placed respondent under arrest for the sale of cocaine. Incident to such arrest, Special Agent Weiner searched respondent's person and discovered six small plastic packages, each containing 1/2 gram of cocaine, in a small box tucked under respondent's waist band.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing Counts 1 and 2 of the notice to show cause, finding respondent guilty of Counts 3, 4, 5 and 6 of the notice to show cause, and revoking respondent's alcoholic beverage license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of December 1993. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December 1993.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to these proceedings, Respondent, doing business as The Knight Out, was the holder of alcoholic beverage license number 72-79, series 1-COP. Prior to the hearing . . . in this cause, Respondent had turned in his license to the Petitioner. To the rear of the licensed premises, Respondent operated a bottle club known as The Knight Club. The Knight Club is attached to and shares restroom facilities with The Knight Out. On March 27, 1975, Respondent was served with a "Notice to show cause why beverage license should not have civil penalty assessed against it or be suspended or revoked" on the grounds that on Sunday, January 26, 1975: his employee, Vicki Lynn Williamson, at approximately 2:00 am., did sell at the licensed premises, an alcoholic beverage, a can of Budweiser beer, to beverage officer L. E. Williams during the time that the sale and consumption of alcoholic beverages is prohibited, in violation of City of Perry Ordinance 394 enacted pursuant to F.S. s. 562.14; at approximately 4:00 a.m., he sold at the licensed premises an alcoholic beverage, one can of Budweiser beer, to beverage officer Williams in violation of City of Perry Ordinance 394; at approximately 5:00 a.m., he sold at the licensed premises an alcoholic beverage, one can of Budweiser beer, to beverage officer Williams in violation of City of Perry Ordinance 394; at approximately 6:05 a.m., he refused to admit to the licensed premises beverage officer Jack Garrett, while in the performance of his official duties, contrary to F.S. s. 562.41; and at approximately 6:05 a.m., he had in his possession, custody and control, at the licensed premises a partially full 4/5 quart of Smirnoff Vodka, an alcoholic beverage not authorized to be sold by him, in violation of F.S. s. 562.02. Beverage officer L. E. Williams went to The Knight Out the weekend of January 24, 1975, in order to conduct an undercover investigation of the licensed premises. He observed the Respondent, between 11:30 p.m. and 12:00 a.m. on January 24th, remove four cases of beer from The Knight Out and place them into a small room in The Knight Club portion of the premises. At about 1:00 a.m. on January 25th, Williams paid a $2.00 cover charge, entered The Knight Club and remained there until 6:00 a.m. On Saturday night, January 25th, beverage officer Williams again went to The Knight Out and, at about 11:30 p.m., again observed Respondent moving five cases of beer from The Knight Out to the rear portion, The Knight Club. Williams entered The Knight Club during the early hours of January 26, 1975, carrying a can of beer with him. He left at approximately 2:30 a.m., met with other beverage agents, and returned to The Knight Club at about 3:45 a.m., paying the cover charge of $2.00. At 4:00 a.m. and again at 5:00 a.m. on January 26, 1975, Williams purchased from Respondent Poppell cans of Budweiser beer at seventy-five cents per can. Williams retained control of the two beer cans and at about 6:30 a.m. he tagged them as evidence. They were admitted into evidence at the hearing as Exhibits 4 and 5. At approximately 6:05 a.m. on January 26, 1975, beverage officer Jack Garrett, along with several other law enforcement agents, knocked on the front door of The Knight Club seeking entrance thereto. Respondent told Garrett to get in front of the peephole on the door so that he could see who was there. Garrett, who had known Respondent for some fifteen years, testified that he showed his identification card to Respondent through the peephole, whereupon Respondent replied that he would not let him in. Beverage officer T. A. Hicks, present with Garrett at the time, confirmed these events. Respondent and two other witnesses present at the scene testified that Respondent asked the persons at the front door to identify themselves, but that no response was received. Shortly thereafter, Officer Garrett, along with other law enforcement officers, went around to the other side of The Knight Club and entered, without knocking, the ladies rest room which led to the inside of The Knight Club. Once inside, they met Respondent leaving a small room with a handful of liquor bottles. One such bottle was seized - - a partially filled bottle of Smirnoff Vodka - - and was received into evidence at the hearing as Exhibit 6. Shirrell Woodalf testified that she had come to The Knight Out on the morning in question with another couple. When the other couple left, they gave her their bottle of Smirnoff Vodka. She then gave the bottle to Respondent to keep for her in his office. Woodalf identified Exhibit 6 as being the same bottle as that left with her and given to Respondent. Four witnesses who often frequented The Knight Club testified that patrons of the Club always brought their own beer or other alcoholic beverages into the Club. Respondent would cool their beer for them and keep their bottles in his office if they so desired. Respondent sometimes charged a small fee for cooling the beer and he sold setups for mixed drinks. These four witnesses never saw Respondent sell either beer or other alcoholic beverages in The Knight Club.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that: Paragraphs 1 and 5 of the notice to show cause be dismissed; Respondent be found guilty of violating F.S. ss. 562.14 and 562.41, as set forth in paragraphs 2, 3 and 4 of the notice to show cause; and Respondent's alcoholic beverage license be revoked. Respectfully submitted and entered 26th day of May, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Charles Nuzum Director Division of Beverage 725 South Bronough Street Tallahassee, Florida Charles Tunnicliff, Esquire Department of Business Regulation 725 South Bronough Street, Room 210 Johns Building Tallahassee, Florida 32304 Conrad C. Bishop, Jr., Esquire Weed & Bishop P.O. Box 1090 Perry, Florida 32347
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
The Issue Whether the Division of Alcoholic Beverages and Tobacco is estopped from denying petitioner's application for a transfer of a special restaurant license.
Findings Of Fact In December, 1981, Applicant applied for transfer of alcoholic beverage license no. 23-02433, 4-COP SRX, a special restaurant license held by Charlies the Lakes Restaurant, Inc. & Willman Co.. DABT denied the application, contending that the licensed premises did not meet minimum seating or square footage requirements. (P-1, letter of denial dated April 8, 1982). The licensed premises, known as the Lakeside Cafe, is located at 6125 Miami Lakes Drive, Miami Lake percent, Florida. It has less than 4,000 square feet of service area and is able to seat less than 200 patrons at tables. (P-1, R-1 Stipulation of counsel) Applicant contends that since DABT granted a special restaurant license (4 COP-SRX) to the present and previous licensees, it is now estopped to deny the application. Although DABT has continuously granted such a license, license applicants have twice filed affidavits indicating that the licensed premises meets square footage and seating requirements. In 1976 and 1980 two separate applicants filed sworn affidavits stating that the licensed premises occupied 4,000 or more square feet of floor space and could accommodate 200 or more patrons at tables. On November 17, 1981, Applicant signed an agreement to purchase the licensed premises from the present licensee for $210,000.00. Under that agreement, the present licensee was required to transfer its interest in the beverage license to applicant. (P-3)
Recommendation Based on the foregoing, it is RECOMMENDED: That Applicant's application to transfer license No. 23-02433, 4-COP SRX, be DENIED. DONE and RECOMMENDED this 16th day of November, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 1982.
Findings Of Fact Based on the exhibits introduced into evidence and the testimony of the witnesses at the hearing, I make the following findings of fact: On January 3, 1984, an application for transfer of alcoholic beverage license number 16-262, in the name of I. T. Chips, Inc., to JNJ, Inc., d/b/a Apples, was delivered to the Lauderhill District Office of the Division of Alcoholic Beverages and Tobacco by Michael Rapp. The application and personal questionnaire of Michael Rapp, Vice President of JNJ, Inc., revealed that he had been convicted of a felony within the last 15 years. Upon being informed by Sgt. Pat Roberts that the application for transfer would be denied because Rapp's conviction was disqualifying, Rapp withdrew the application. On January 6, 1984, Michael Rapp submitted an amended application for transfer of this same alcoholic beverage license to JNJ, Inc., d/b/a Apples. The amended application listed Janet Swift, a/k/a Janet Swift Rapp, as sole corporate officer and shareholder. An agreement for purchase and sale submitted with the application revealed that JNJ, Inc., was purchasing from MAM Restaurant Corporation all assets located at 1201 East Hallandale Beach Boulevard, Hallandale, Florida, the address of the licensee, I. T. Chips, Inc., for a total price of $418,600.00. The purchase and sale agreement acknowledged that a down payment in the amount of $18,600.00 had been made by JNJ, Inc., and provided for the remaining debt of $400,000.00 to be paid in monthly installments of $4,800.00 and be secured by a mortgage. The application stated that Frederick Cusolito and Janet Swift would be the sole financial investors in the business and that the corporation's banking business would be conducted at the Bank of Hallandale & Trust Company. Janet Swift swore that the information provided on the application was true. Whatever, Inc., is a corporation with the same business address as JNJ, Inc. Michael Rapp is the President and Secretary of Whatever, Inc. Whatever, Inc., had a bank account at the Bank of Hallandale & Trust Company and Michael Rapp was an authorized signer on the account. During January of 1984, Whatever, Inc., was writing checks to pay some of the operating expenses of the business located at 1201 East Hallandale Beach Boulevard. JNJ, Inc., with an address of 1201 East Hallandale Beach Boulevard, Hallandale, Florida, had a bank account at Flagship Bank of Miami. The bank records show Janet Swift as president of the corporation and Michael Rapp as Vice President. During December of 1983, the following deposits were made to the JNJ, Inc., account at the Flagship Bank of Miami: $92,500.00 from Martin I. Roth at L & M Consultants, $27,000.00 from David J. S. Gottfried, $39,000.00 from the Hanseatic Development Corporation (described as a "loan"), and $87,000.00 from an unidentified account at the Bank of Ireland in New York. None of the people or entities from whom these deposits were received were listed as financial investors of JNJ, Inc., on the sworn application filed by Janet Swift for the transfer to JNJ, Inc. None of them were listed as financial investors of I. T. Chips, Inc., on the sworn application filed by Janet Swift for change of business name and change of officers of I. T. Chips, Inc. Martin I. Roth, the authorized signer on the bank account of L & M Consultants who actually signed the L & M Consultants checks which were deposited in the JNJ, Inc., account, was convicted of a felony in 1981. On January 19, 1984, JNJ, Inc., borrowed $75,000.00 from Schmidt Industries, Inc., a Missouri corporation. To secure that loan, JNJ, Inc., entered into a Security Agreement (chattel mortgage) pursuant to which JNJ, Inc., pledged liquor license series number 4 COP, permit number 16-262, as security for the repayment of the $75,000.00 loan. Liquor license series number 4 COP, permit number 16-262 is the liquor license issued to I. T. Chips, Inc. 1/ The facts described in paragraphs 3, 4, 5, and 6, above, came to the attention of DABT Investigator Michael D'Ambrosia during the course of his investigation of the January 6, 1984, application to transfer the I. T. Chips, Inc., license to JNJ, Inc. D'Ambrosia met with representatives of JNJ, Inc., discussed with them the information he had acquired during the course of his investigations, and requested that he be provided with certain additional information. Thereafter, District Supervisor Richard Boyd recommended disapproval of the January 6, 1984, application on April 3, 1984. On April 4, 1984, before any final agency action was taken on the application, JNJ, Inc., withdrew the application to transfer the I. T. Chips, Inc., license to JNJ, Inc. On April 4, 1984, Janet Swift signed an application for a change of business name and a change of corporate officers of the licensee corporation, I. Chips, Inc. 2/ This application was filed on April 11, 1984, with the Division of Alcoholic Beverages and Tobacco. Janet Swift was again listed as sole corporate officer and shareholder. The sworn application filed in April of 1984 contained the following financial information: JNJ, Inc., which held a temporary license, which has since been withdrawn, executed an Agreement for Purchase and Sale with MAM Restaurant Corporation on 12/8/83. JNJ, Inc., the stock of which is owned exclusively by Janet Swift, has abandoned the premises, since Janet Swift has purchased all of the stock in I. T. Chips, Inc., for which she paid no consideration other than assuming the existing debts. I. T. Chips, Inc. has agreed to assume the mortgage referred to in the Agreement for Purchase and Sale; to wit, the initial principal sum of $400,000.00, payable at the rate of $4,800.00 per month, which will be paid from the proceeds of the operation of the business herein. Janet Swift is the sole and exclusive owner of T. Chips, Inc., and no other person, firm or entity has any interest, direct or indirect, in the said business. The application which was signed on April 4, 1984, and filed on April 11, 1984, did not contain any information about the financing of the business other than what is quoted immediately above, and did not list any person as having an interest in the business other than Janet Swift. On April 4, 1984, Janet Swift swore to the truth of the following statement which is printed on the application form: I swear or affirm under penalty of perjury as provided for in Florida Statutes 837.06 and 559.791, that the foregoing information is true to the best of my knowledge, and that no other person, persons, firm or corporation, except as herein indicated, has an interest in the alcoholic beverage license or cigarette permit for which these statements are made. On April 4, 1984, Schmidt Industries, Inc., had an interest in the alcoholic beverage license which was the subject of the application signed by Janet Swift, because that same license was pledged as collateral for a $75,000.00 loan, and pursuant to a chattel mortgage, Schmidt Industries, Inc., had a security interest in that license to guarantee the payment of the loan. 3/ On April 4, 1984, JNJ, Inc., was a financial investor in the I. T. Chips, Inc., license or business because I. T. Chips, Inc., received the benefit of the $18,500.00 down payment that JNJ, Inc., made to MAM Restaurant Corporation and I. T. Chips, Inc., received the benefit of the $75,000.00 that JNJ, Inc., borrowed from Schmidt Industries, Inc. On April 4, 1984, the persons and entities described in paragraph 4, above, who wrote checks deposited in the JNJ, Inc., bank account were indirect financial investors in the I. T. Chips, Inc., license or business because I. T. Chips, Inc., was either the successor to or the alter ego of JNJ, Inc. On April 4, 1984, Frederick Consolito was an indirect financial investor in the I. T. Chips, Inc., license or business because I. T. Chips, Inc., was either the successor to or the alter ego of JNJ, Inc. 4/ The foregoing findings of fact incorporate the substance of the vast majority of the findings of fact proposed by the parties. In those few instances where I have made findings contrary to the proposed findings, it is because the persuasive competent substantial evidence was to use contrary of the proposed findings. In those few instances where I have omitted the substance of findings proposed by a party, it is because the proposed finding was irrelevant, immaterial, cumulative, or not supported by persuasive competent substantial evidence.
Recommendation Based upon all of the foregoing it is recommended that the Division of Alcoholic Beverages and Tobacco enter a final order denying the application for change of business name and change of corporate officers of I. T. Chips, Inc. DONE AND ORDERED this 1st day of April, 1985, in Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of March, 1985.
Findings Of Fact Based on the stipulations of the parties, the exhibits received in evidence (including Respondent's Exhibit No. 1), and the testimony of the witnesses at the hearing, I make the following findings of fact: Club 99, Inc., is the holder of alcoholic beverage license number 16- 1053-SRX, series 4-COP, doing business at 451 North State Road 7, Plantation, Broward County, Florida, as a bar and restaurant named Shangri-La. On August 7, 1984, the Plantation Police Department began a narcotics investigation at the licensed premises known as Club 99, Inc. d/b/a Shangri-La, holding license number 16-1053-SRX, series 4-COP, located at 451 North State Road 7, Plantation, Broward County, Florida. On this date Detective Dan Anderson entered the licensed premises undercover and was introduced to a white male bartender identified as Malcolm Perkins. Detective Anderson engaged in a conversation with Perkins regarding a narcotic known as MDA. Perkins explained that MDA was a mixture of heroin and speed and further stated that he could obtain MDA for Anderson at a price of $70.00 a gram or $10.00 a "hit." Detective Anderson also engaged in conversation about MDA with Scott Kiehl, the assistant manager at the licensed premises. Later that same evening Detective Anderson engaged in a conversation about cocaine with a white male bartender on the licensed premises known as "Paul" or "Miss Kitty." None of the employees with whom Detective Anderson discussed MDA or cocaine appeared to be alarmed or concerned about the discussion. On August 10, 1984, at approximately 9:30 P.M., Detective Anderson again entered the licensed premises in an undercover capacity and engaged in a conversation with a white male bartender identified as Richard Christian. Detective Anderson asked if he could buy a half gram of cocaine and Richard Christian answered in the affirmative stating that the price would be $35.00 for one half gram. Detective Anderson gave $40.00 in U.S. currency to Christian and Christian covered the money with a cocktail napkin. Christian took the money and shortly thereafter he placed a clear plastic bag containing a white powdery substance under a cocktail napkin and pushed it across the bar towards Detective Anderson. At this same time, Christian said, "It is underneath." After looking under the napkin, Anderson took the cocktail napkin and the small plastic bag and placed them in his left front pants pocket. On August 17, 1984, Detective Anderson returned to the licensed premises at approximately 10:00 P.M. 2/ On this occasion he met with a white male bartender named Malcolm Perkins. Detective Anderson asked if Perkins had obtained any MDA for him and Perkins answered in the negative. Detective Anderson asked if Perkins could get him any cocaine. Perkins answered in the negative but pointed out a waiter named Everett Campbell and suggested that Anderson ask Campbell about cocaine. Detective Anderson then approached the waiter identified as Everett Campbell and asked Campbell if he could get Anderson a half gram of cocaine. Campbell replied in the affirmative and said the price would be $35.00. Anderson agreed to the price. Later that evening Campbell approached Anderson and said that the person he gets the cocaine from was not in the bar and that, therefore, he could not deliver any cocaine to Detective Anderson. On August 18, 1984, at approximately 11:35 P.M., Detective Anderson entered the licensed premises and met with Everett Campbell. This time Campbell told Anderson that he would be able to obtain some cocaine. At approximately 12:05 A.M. on August 19, 1984, Detective Anderson gave Campbell $40.00 in U.S. currency. Campbell took the money and walked to an unknown location off the premises and returned in about five minutes. Campbell then handed Detective Anderson a small plastic bag containing a white powdery substance. Nothing was wrapped around the plastic bag. Detective Anderson held up the plastic bag to inspect it before putting it in his pocket. The other bartenders and a large number of patrons were nearby and could have seen what was happening. On August 21, 1984, at approximately 11:00 P.M., Detective Anderson entered the licensed premises. Anderson struck up a conversation with a white male patron identified as Dion Burl. Detective Anderson asked Burl if he could obtain some cocaine for Anderson. Burl replied in the affirmative and stated that it would cost $40.00 for one half gram. Anderson placed a cocktail napkin over two $20.00 bills and handed them to Burl. Burl took the money and walked to an unknown location. At approximately 11:30 P.M., Burl returned. He handed Detective Anderson a white cocktail napkin and a small clear plastic bag that contained a white powdery substance. Detective Anderson took the substance and placed it in his pants pocket. On August 23, 1984, Detective Anderson returned to the licensed premises and met with Everett Campbell at approximately 11:00 P.M. Campbell was working as a waiter that night. Detective Anderson asked Campbell if he could obtain a half gram of cocaine for Anderson. Campbell answered in the affirmative and said it would cost $40.00. Detective Anderson gave Campbell the money and a while later Campbell handed him a magazine titled "David" and said, "It's inside." Inside the magazine Detective Anderson found a small clear plastic bags containing a white powdery substance. Detective Anderson held the plastic bag up to inspect it before putting it in his pocket. On August 24, 1984, at approximately 9:30 P.M., Detective Anderson entered the licensed premises again. At approximately the same time Investigator Oliva entered in an undercover capacity as back up. Upon entering the premises Detective Anderson met with white male bartender Richard Christian and both engaged in general conversation. After a short period of time Detective Anderson asked Christian if he had any cocaine. Christian stated that be did not have any right now but for Anderson to go ahead and give Christian $35.00, and that he would have it later. Anderson complied with Christian's request and gave Christian $35.00 U.S. currency. At approximately 11:00 P.M., Detective Anderson and Investigator Oliva seated themselves at a table in the dining area of the licensed premises, where they were greeted by Everett Campbell. Shortly thereafter Anderson asked Campbell if he could get Anderson some cocaine. Campbell replied in the affirmative. Thereupon Anderson folded two $20.00 bills, placed them under a napkin, and gave them to Campbell. Detective Anderson and Investigator Oliva then saw Campbell go into the kitchen area several times. About fifteen or twenty minutes later, Campbell approached the table where Anderson and Oliva were seated and placed a folded cocktail napkin in front of Detective Anderson and said, "It's in there." Anderson unfolded the napkin and found that it contained a small clear plastic bag containing a white powdery substance. Anderson removed the plastic bag from the napkin and inspected the plastic bag by holding it up to eye level for a few seconds. Detective Anderson saw other patrons looking at him when he raised the plastic bag to eve level. After inspecting the plastic bag, Anderson put it in his pocket. At approximately midnight of the evening of August 24-25, 1984, Detective Anderson and Investigator Oliva left the restaurant portion of the licensed premises and proceeded to the upstairs portion of the licensed premises, which is another lounge. After a short period of time, Anderson and Oliva were greeted by a waiter identified as Adam Burnett. Anderson and Oliva negotiated with Burnett for the purchase of cocaine. In approximately five minutes Burnett returned to the table where the officers were seated and stated that he could obtain a better quality of cocaine for $40.00 in U.S. currency for one half gram. At this time Investigator Oliva stated that he would take the better quality of cocaine and gave Burnett $40.00 in U.S. currency. A few minutes later Investigator Oliva followed Burnett into the mens' restroom. Once inside the mens' room, Burnett handed Oliva a white cocktail napkin. Oliva took the napkin and unwrapped it. Inside was a small clear plastic bag containing a white powdery substance. Oliva held the plastic bag up to eye level to view its contents and discussed with Burnett the fact that the white powdery substance had a lot of "rocks" in it. Oliva then stated to Burnett that he was not going to do the cocaine in the bathroom because he did not trust anyone. Burnett's reply was, "It's okay. Everyone does it in here anyway." Oliva and Burnett then left the restroom. A few minutes later that same evening, an unknown white male employee who had been previously working at a bar located in the downstairs portion of the premises approached Detective Anderson and Investigator Oliva and stated to Anderson, "Richard wants to see you downstairs". Anderson and Oliva proceeded downstairs to the bar located by the kitchen entrance. There Detective Anderson met with bartender Richard Christian, who told Anderson to reach into his shirt pocket. Anderson reached in Christian's shirt pocket and pulled out a folded napkin, and a small clear plastic bag which contained a white powdery substance. When Detective Anderson started to open the cocktail napkin, Christian put his hands out to close Anderson's hands in an effort to keep other people from seeing the bag. On August 29, 1984, Detective Anderson again entered the licensed premises. At approximately 10:00 P.M., Detective Anderson was introduced to a white male waiter identified as Tony Brown. Anderson and Brown engaged in general conversation and after a short period of time Anderson asked Brown if he could get a half gram of cocaine. Brown stated that be should be able to obtain one and that he would check around and get back to Detective Anderson. At approximately 11:00 P.M., Brown approached Detective Anderson and stated that he had checked around, but was unable to obtain any cocaine. On the same date, at approximately 11:30 P.M., Detective Anderson met with waiter Adam Burnett and engaged in general conversation and after a short period of time Anderson asked Burnett if Burnett could get him a half gram of cocaine. Burnett replied by stating, "Wait 'til Gus gets here." Burnett further stated that the price would be $35.00 for one half gram. At approximately 12:10 A.M., on August 30, 1984, Anderson handed Burnett two $20.00 bills. About twenty minutes later, Burnett handed Anderson a folded napkin. Anderson unfolded the napkin and found a clear plastic bag containing a white powdery substance. Anderson then placed the clear plastic bag in his left front pocket. On the evening of August 30, 1984, Detective Anderson entered the licensed premises again. Investigator Oliva and Detective Vadnal entered the premises at about the same time in an undercover capacity as back up. Detective Anderson met with a white male patron previously identified as Dion Burl. Anderson asked Burl if he could get Anderson a half gram of cocaine. Burl replied in the affirmative. Detective Anderson then handed Burl two folded $20.00 bills, which were wrapped in a cocktail napkin. Burl took the money and left. At approximately 11:50 P.M., Burl returned to the upstairs portion of the premises and sat at a table with Detective Anderson. At this time Burl handed Anderson a folded cocktail napkin and inside the folded napkin was a small clear plastic bag containing a white powdery substance. On that same evening, August 30, 1984, Detective Anderson met with a white male waiter identified as Tony Brown who was working at the upstairs portion of the licensed premises. Anderson and Brown engaged in a conversation while standing approximately three feet from Investigator Oliva. Anderson asked Brown if Brown could obtain a half gram of cocaine. Brown replied by stating, "It will be about twenty minutes." Detective Anderson gave two $20.00 bills to Brown and told Brown that he would be in the downstairs portion of the licensed premises. At approximately 12:10 A.M, on August 31, 1984, Detective Anderson, while standing at the downstairs portion of the licensed premises was approached by Brown, who handed Anderson a folded white cocktail napkin which contained a clear plastic bag containing a white powdery substance. Anderson inspected the plastic bag and then placed the napkin and its contents in his right rear pants pocket. On or about August 31, 1984, at approximately 11:30 P.M., Detective Anderson again entered the licensed premises. At about the same time Detective Vadnal and Investigator Oliva entered the licensed premises in an undercover capacity as backup. Shortly after midnight (in the early morning minutes of September 1, 1984) Detective Anderson met with white male waiter Adam Burnett and engaged in a general conversation. Detective Anderson asked Burnett if Burnett could get Anderson a half gram of cocaine. Burnett replied in the affirmative. Thereupon Detective Anderson gave Burnett $40.00 in U.S. currency by laying two $20.00 bills on a cocktail tray Burnett was carrying. Burnett walked away from Detective Anderson to an unknown portion of the licensed premises. A few minutes later Burnett returned to where Detective Anderson was standing and handed Anderson a magazine titled "David" and said, "It's in the magazine." Detective Anderson, who was standing near the dance floor of the licensed premises, took the magazine and flipped through its pages, at which time a clear plastic bag containing a white powdery substance fell to the floor. Several patrons standing in the vicinity of Anderson saw the clear plastic bag fall to the floor and laughed at Anderson's clumsiness. Detective Anderson then picked up the clear plastic bag and held it up to eye level to inspect it. He then placed it in his pocket. On the evening of September 5, 1984, Detective Anderson again entered the licensed premises. Shortly thereafter Detective Vadnal and Investigator Oliva entered the licensed premises in an undercover capacity as back up. Detective Anderson met with a white male patron previously identified as Dion Burl and asked Burl if he could purchase a half gram of cocaine. After some conversation, Anderson gave two $20.00 bills to Burl. Detective Anderson then told Burl that he would be sitting on a speaker near the west end of the dance floor and that Burl could deliver the cocaine to him there. At approximately 10:45 P.M., Burl approached Detective Anderson, who was seated on a speaker by the dance floor, and sat next to Anderson. Burl then handed a folded cocktail napkin to Detective Anderson. Inside the cocktail napkin was a small clear plastic bag containing a white powdery substance. Detective Anderson examined the plastic bag and then placed it in his pocket. After concluding the cocaine purchase of September 5, 1984, at the licensed premises, Detective Anderson remained on the licensed premises and during the early morning hours of September 6, 1984, he met with a white male waiter previously identified as Adam Burnett. Detective Anderson asked Burnett if he could get Anderson a half gram of cocaine. Burnett stated that "Gus," referring to the supplier, was not yet at the bar, but that he should be able to obtain some later. A few minutes later, Burnett approached Anderson and stated that Gus was present and Anderson handed Burnett two folded $20.00 bills in U.S. currency. Anderson then stated to Burnett that he would be in the downstairs portion of the premises. A short while later Burnett approached Anderson and handed Anderson what appeared to be a mixed drink with a napkin wrapped around the glass. As he handed the glass to Anderson, Burnett said, "It's just water, but look in the napkin." Anderson set the drink down and unfolded the napkin to expose a small clear plastic bag containing a white powdery substance. Detective Anderson placed the plastic bag in his pocket. At approximately 12:30 A.M. that same evening (prior to purchasing the cocaine from Burnett), Detective Anderson met with a white male waiter previously identified as Everett Campbell and engaged in a general conversation with Campbell. Shortly thereafter Detective Anderson asked Campbell if he could get Anderson a half gram of cocaine. Anderson gave Campbell two folded $20.00 bills in U.S. currency. Approximately two minutes later Campbell returned from an unknown location in the restaurant area of the licensed premises and handed Anderson a small clear plastic bag containing a white powdery substance. Anderson took the plastic bag and held it up to inspect it. The bartender at bar number two could have seen Anderson inspecting the plastic bag. Anderson then placed the plastic bag in his pocket. On the evening of September 10, 1984, Detectives Anderson and Vadnal and Investigator Oliva returned to the licensed premises in an undercover capacity. Anderson engaged in a brief conversation with a white male waiter previously identified as Everett Campbell, who was not working on this date. Anderson asked Campbell if he could get Anderson a half gram of cocaine. Campbell replied in the affirmative. Detective Anderson then handed Campbell a $50.00 bill, which Campbell took. Campbell took the $50.00 bill to a bartender, received change for it, and gave Anderson $10.00. Campbell then went out the front door. At approximately 1:00 A.M. on September 11, 1984, Campbell reentered the licensed premises and met with Detective Anderson who was standing next to Investigator Oliva. At this time Campbell handed Anderson a clear plastic bag containing a white powdery substance. This transaction was observed by an on-duty white male bartender identified only as "Don" and by a white male patron who was standing on the opposite side of Anderson. Detective Anderson took the clear plastic bag and placed it on the bar counter where it remained for two or three minutes in plain view of the bartender. Then Anderson took the plastic bag and attempted to place it in his pants pocket at which time the small plastic bag containing the white powdery substance fell to the floor where Detective Vadnal, Investigator Oliva, and the white male patron previously mentioned observed the same. Detective Anderson retrieved the clear plastic bag from the floor and placed it in his pants pocket. At all times material to this case, the following were employees on the licensed premises. Malcolm Perkins, Richard Christian, Everett Campbell, Adam Burnett, Tony Brown and a bartender identified only as "Don." Each and every one of the clear plastic bags containing a white powdery substance which were sold to Detective Anderson and to Investigator Oliva on the licensed premises during August and September of 1984, were properly examined by a forensic chemist. The contents of each and every one of those clear plastic bags was found to contain cocaine. In brief summary of the foregoing, during the 5-week period from August 7, 1984, through September 11, 1984, the following events occurred on the licensed premises: 8/07/84 Employee Malcolm Perkins told Detective Anderson he could obtain MDA. 8/07/84 Assistant Manager Scott Kiehl and employee "Paul/Miss Kitty" discussed drugs with Detective Anderson without alarm or concern. 8/10/84 Employee Richard Christian sold cocaine to Detective Anderson. 8/17/84 Employee Malcolm Perkins told Detective Anderson that employee Everett Campbell could obtain cocaine for Anderson. 8/17/84 Employee Everett Campbell agreed to sell cocaine to Detective Anderson. 8/19/84 Employee Everett Campbell sold cocaine to Detective Anderson. 8/21/84 Patron Dion Burl sold cocaine to Detective Anderson. 8/23/84 Employee Everett Campbell sold cocaine to Detective Anderson. 8/24/84 Employee Everett Campbell sold cocaine to Detective Anderson. 8/25/84 Employee Richard Christian sold cocaine to Detective Anderson. 8/25/84 Employee Adam Burnett sold cocaine to Investigator Oliva. 8/29/84 Employee Tony Brown offered to sell cocaine to Detective Anderson. 8/30/84 Employee Adam Burnett sold cocaine to Detective Anderson. 8/30/84 Patron Dion Burl sold cocaine to Detective Anderson. 8/31/84 Employee Tony Brown sold cocaine to Detective Anderson. 9/01/84 Employee Adam Burnett sold cocaine to Detective Anderson. 9/05/84 Patron Dion Burl sold cocaine to Detective Anderson. 9/06/84 Employee Adam Burnett sold cocaine to Detective Anderson. 9/06/84 Employee Everett Campbell sold cocaine to Detective Anderson. 9/11/84 Employee Everett Campbell sold cocaine to Detective Anderson. All of the events summarized immediately above took place on the licensed premises during business hours when other employees and patrons were also present on the licensed premises. With the one exception which occurred on August 25, 1984, when Richard Christian reached out to close Detective Anderson's hands so that Anderson would not display a plastic bag containing cocaine, the employees at the licensed premises did not express any concern about any of the drug transactions and did not take any action to prevent or discourage them. Richard DeSanto is the sole officer, director, and shareholder of Club 99, Inc., the licensee in this case. Richard DeSanto is a self-employed attorney in good standing with the Florida Bar. He has been a practicing attorney for six years and maintains an active trial practice. DeSanto does not devote very much time to the management of the licensed premises. The day-to-day management is conducted by a manager and an assistant manager, both hired by DeSanto. The manager is Tommy Engelbrecht and the assistant manager is Scotty Kiehl. DeSanto relies on Engelbrecht to relay DeSanto's instructions about the operation of the licensed premises to the other employees and also relies on Engelbrecht to report back to him regarding any problems in the operation of the licensed premises. Engelbrecht does the hiring and firing at the licensed premises and many of the employees on the licensed premises would not even recognize DeSanto. DeSanto visits the licensed premises about twice a month on a deliberately irregular schedule. Some of his visits are as brief as a few minutes; others are as long as several hours. The primary purpose of his visits is to attend to such things as reviewing business records and signing the payroll. DeSanto has established as policies that intoxicated or disorderly patrons should not be permitted to enter the licensed premises and that patrons who become disorderly once they are inside the licensed premises should be ejected. It is also a policy of the club that if the employees become aware of any drug activity on the licensed premises they are supposed to report the incident to the manager or assistant manager, and the manager or assistant manager is supposed to eject whoever is involved in the drug activity. On three or four occasions during the past year or so patrons have been ejected for drug activities on the licensed premises. DeSanto has discussed drug problems and their prevention with Engelbrecht. All new employees are told about the drug policy at the licensed premises when they are first hired. Engelbrecht has also held a few employee meetings at which he reminded employees of the drug policy. The drug policy established by DeSanto appears to include a policy of firing any employee who is caught with drugs on the premises. During the past year three waiters have been fired on the spot for drug use. In the past year the manager has also been told of three or four instances of drug dealing on the licensed premises. 3/ There are no written personnel rules and regulations. Thus, all of DeSanto's policies are communicated orally to Engelbrecht and are then communicated orally by Engelbrecht to the employees. The entire management of the licensed premises, including management practices concerning hiring of personnel, appear to be very informal. Further, the personnel policies regarding drug activities on the licensed premises are either ineffectively communicated or ineffectively enforced. For example, none of the drug transactions engaged in by Detective Anderson and Investigator Oliva were reported to the manager or assistant manager, and no efforts were made to eject Anderson or Oliva for engaging in drug transactions or attempting to engage in drug transactions, even though some of their transactions were observed by employees who were not involved in the transactions. Further, at least one employee (Richard Christian) knew that a patron named Gus was regularly dealing in cocaine on the licensed premises, but no action was taken to eject Gus. 4/ Yet another example of the informality of the licensee's personnel practices is that even though Englebrecht had recently hired a bartender named "Don" and had supposedly carefully checked with Don's references, Englebrecht could not remember Don's last name. When alcoholic beverage licenses were renewed in March of 1983, the DABT sent information to all licensees advising them that the DABT was willing to provide them with suggestions for controlling drug activity on the licensed premises. DeSanto did not take advantage of this opportunity to obtain suggestions from DABT because he did not think he had a drug problem on the licensed premises. In making the foregoing findings of fact I have given careful consideration to the proposed findings of fact contained in the parties' post- hearing submissions to the Hearing Officer. To the extent that findings of fact proposed by either party are not incorporated in the foregoing findings of fact, the proposed findings have been specifically rejected because they were not supported by competent substantial evidence, because they were contrary to the greater weight of the evidence, because they involve incidental details which were not essential to the resolution of this case, or because they were irrelevant or immaterial.
Recommendation For all of the foregoing reasons it is recommended that the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking alcoholic beverage license number 16-1053-SRX, Series 4-COP, issued to Club 99, Inc., trading as Shangri-La. DONE and ORDERED this 8th day of October, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1984.
The Issue The issue is whether Respondent is guilty of selling alcoholic beverages not permitted by Respondent's license.
Findings Of Fact Respondent holds license number 46-02076, series 14-BC. This license authorizes Respondent to operate as a bottle club, under Sections 561.01(15) and 561.14(6). Respondent's licensed premises is located at 8595 College Parkway, Number B12, Ft. Myers. On October 29, 1996, at about 2:00 am, two of Petitioner's agents entered the licensed premises after paying a $2 cover charge. Neither agent had any alcoholic beverages in his possession. However, two of Respondent's employees assured them that they did not need to bring alcoholic beverages. One of these employees was the manager and the other was the barmaid. One agent ordered a Budweiser beer (Bud) and a shot of Jim Beam whiskey. The other agent ordered a Bud. The first agent later ordered another Jim Beam, but was told they were out of Jim Beam. The agent then ordered an Early Times whiskey. Respondent's barmaid took these orders and filled them with stock kept apart from other patrons. This person collected $3 for each of the drinks. On November 3, 1995, at about 2:00 am, the same agents returned to the licensed premises, again without any alcoholic beverages in their possession. They entered the premises after paying a $2 cover charge. Again, the agents placed orders with the barmaid employed by Respondent to work behind the bar. In response to a question from one of the agents as to what kinds of beers they had for sale, the barmaid recited several brand names. Each agent ordered an Ice House beer and paid $3. One of the agents next ordered an Early Times whiskey. The other agent ordered a Jim Beam whiskey. The barmaid informed the agent ordering the Jim Beam that they did not have any and suggested three other brands of whiskey. The agent ordered the Canadian Club. The employee served the drinks to each agent, who paid $3 for each drink. On November 9, 1995, at 3:15 am, the agents returned to the licensed premises. They paid a $1 cover charge and entered the premises without an alcoholic beverage in their possession. One agent ordered an Ice House beer and the other ordered a Jack Daniels. The barmaid was not there, but the employee who had formerly served as the manager worked as a bartender during this visit. The bartender served the agent an Ice House beer, for which he paid $3. The bartender told the other agent that they did not have any Jack Daniels, so the agent ordered a Canadian Club whiskey. The employee served the agent a drink of Canadian Club, for which he paid $3. Each of the above-described drinks ordered and consumed by the agents and served by the two employees of Respondent were alcoholic beverages. During the six hours that the agents were in the licensed premises, they saw only two persons enter the premises with an alcoholic beverage, but saw many patrons served with alcoholic beverages. The license fee for a bottle club is $500. The license fee for an alcoholic beverage license is $1820.
Recommendation It is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order finding Respondent guilty of a violation of Section 561.12 and imposing an administrative fine of $1320. ENTERED on October 9, 1996, in Tallahassee, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this October 9, 1996. COPIES FURNISHED: Miguel Oxamendi, Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Nicholas Lukacovic 2902 Southwest 30th Street Cape Coral, Florida 33914 Nicholas Lukacovic Diamond Investigations 1314 Cape Coral Parkway, Suite 203 Cape Coral, Florida 33904 Nicholas Lukacovic 1714 Southeast 47th Street Cape Coral, Florida 33904 John J. Harris, Director Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
