The Issue The issues in this case are framed by the Notice to Show Cause issued by the Petitioner, the Department of Alcoholic Beverages and Tobacco (the Department), on or about October 9, 1991. The Notice to Show Cause contains a total of 32 counts. Twenty nine (29) counts accuse the Respondent, Bernard Jordan, d/b/a Club Zanzibar, of permitting an agent, servant, patron, or employee to unlawfully possess, sell or deliver a controlled substance (cocaine) to an undercover informant or law enforcement officer on the licensed premises in violation of Sections 893.13(1)(a) and 893.13(1)(f) within Section 561.29(1)(a), Florida Statutes. One count accuses the Respondent of permitting an agent, servant, patron, or employee to unlawfully possess, sell or deliver five (5) liters of non tax paid whiskey (moonshine) to an undercover informant or law enforcement officer on the licensed premises in violation of Sections and 562.451 within Section 561.29(1)(a), Florida Statutes. 1/ One count accuses the Respondent of unlawfully keeping or maintaining the licensed premises for the illegal keeping, using, selling or delivering of substances controlled under Chapter 893.03, in violation of Sections 823.10 and 893.13(2)(a)(5), within Section 561.29(1)(a), Florida Statutes. Finally, the last count accuses the Respondent of failing to exercise due diligence in supervising the licensed premises, allowing it to be used by agents, servants, patrons, or employess for the purpose of possessing, selling, delivering and using illegal substances controlled under Chapter 893.03 (coccaine) and 562.451 (moonshine), 2/ in violation of Sections 823.10 and 561.29(1)(c), Florida Statutes.
Findings Of Fact The Respondent, Bernard Jordan, has owned and operated the Club Zanzibar, located at 2132 Main Street, Tampa, Hillsborough County, Florida, for approximately nine years. He holds alcoholic beverage license number 39-00839, series 4-COP, issued by the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, authorizing the sale of alcoholic beverages for consumption on the premises. (He also operates a package store on the premises.) When the Respondent began operating under his license in 1983, there was much less drug activity in the vicinity than there is now. The clientele of the Club Zanzibar was mixed, in the sense that it included the community's professional and blue collar workers, and also law enforcement employees; but the clientele generally was a stable and settled crowd. Supporters of a local community boys' club regularly met at the Club (and continued to meet there up to the time of the emergency suspension on October 10, 1991.) During the early years of the Club, the package store part of the business had two entrances, and the less controlled access to and egress from the premises did not present a problem for the Respondent. There was relatively little loitering and drinking on the street in front of the Club. Notwithstanding the relatively stable environment, the Respondent did not ignore the potential for unlawful activity on the premises. He utilized an Employee Handbook that all new employees had to read and, after completing a month of probationary employment, sign. Among other things, the handbook informed the employees: If a customer is suspected of performing any unlawful acts in this business, the police will be contacted. . . . Do not accuse a customer of any unlawful acts, if not seen by the employee of the establishment. If the employee is using, has or obtaining [sic] drugs, they will be dismissed immediately. (PLEASE READ NOTICE CONCERNING DRUGS). * * * DUE TO RECENT SUSPICIONS OF DRUGS AND OTHER ILLEGAL MATTERS BEING BROUGHT ON THESE PREMISES, ANYONE ENTERING THIS ESTABLISHMENT IS SUBJECT TO BEING POLITELY CHECKED, AS A MEASURE TO PROTECT THE OPERATION OF THIS BUSINESS. WE OFFER OUR DEEPEST APOLOGIES, BUT POSITIVELY NO DRUGS OR ANY OTHER ILLEGAL SUBSTANCES ARE ALLOWED. * * * No one is allowed to LOITER on the grounds of the establishment and no one should be standing in front of door exits or entrances. 4/ Club employees also were informed on a regular basis that no illegal drugs were allowed on the premises and that employees should keep them out if they could or, if not, should notify the Respondent, who either would take care of it himself or call the police. The Respondent also would "bar" anyone caught with or strongly suspected of having, illegal drugs on the premises. The "bar" was permanent or until lifted by the Respondent. The employees are told to enforce the "bar," and if someone who has been barred ignores an employee's enforcement measures, the employee is supposed to tell the Respondent, who enforces it himself or, if necessary, calls the police. But the Respondent did not hold regular, formal meetings to remind the employees of Respondent's prohibition against the possession, use or sale of illegal drugs and of their responsibility with respect to patrons violating the policy. He did not require his employees to complete employment applications or be screened. Nor did he polygraph his employees. The Respondent also posts five-by-seven inch placards in conspicuous places throughout the premises informing customers and employees alike: Illegal Activities Warning: This establishment is firmly against any illegal behavior! . . . Drugs: Drugs are positively prohibited on these premises! Anyone seen or reported with any form of Narcotics will IMMEDIATELY be reported to the police without warning! (A similar message is related as to dangerous weapons.) Although the Respondent makes efforts to enforce the basic "no drugs" policy, he does not always follow the letter of his warnings and announced enforcement measures. He does not, for example, report drug violators to the police "immediately" and "without warning," as the placards state. Indeed, there is no evidence that the Respondent ever reports drug violations to the police or asks for police or Department assistance to address the issue of drugs on the premises. In recent years, the environment around and in the Club Zanzibar has changed drastically. In recent years, crack cocaine has become a serious problem in the vicinity. Crack is sold predominantly by a crowd that is younger than the historical Club Zanzibar clientele. This younger crowd now mixes with the historical Club clientele. It also loiters around in the street in front of the Club and in the general vicinity. Street sales of crack are so frequent in the area that the street has been likened to a drug supermarket. Anyone, anywhere in Tampa, can come to Main Street in this part of the city and buy crack with almost no wait. The problem has become so bad that the Tampa Police Department has opened a sector office nearby; yet, the drug problem in the area persists despite the greater police presence. Because of changed circumstances in the neighborhood, the Respondent has altered the premises to eliminate one of the two entries to the package store to make it a little easier to monitor those going in and out of the package store. The Respondent also has placed a mirror in the premises to allow whoever is tending bar to monitor the foyer of the Club for possible loitering or illegal activity from a particular vantage point near the cash register. But he did not take steps to improve the lighting in the licensed premises. Nor did he vigorously police his establishment. The Respondent did not hire a manager or adequate security guards to police the licensed premises. The Respondent has volunteers who work for him on weekends and, to some extent, watch for illegal activities on the premises. But these volunteers are retirees who are not particularly effective and their primary function seems to be to collect the cover charge for the Respondent. Even assuming that they were actively policing the establishment, they were not capable of doing the job that should have been done. In response to apparent complaints, the Department sent an undercover special agent and an undercover confidential informant (the CI) into the Club Zanzibar on or about May 31, 1991. (An undercover Tampa Police detective also went as a back-up.) The CI and Agent Murray entered the Club and took a seat at the bar. In a short while, a black male known to the CI as a drug pusher who went by the initials "C.C." walked up to them. (C.C. also had told the CI that he (C.C.) was the Respondent's brother, but the evidence did not prove that C.C. was in fact the Respondent's brother.) The CI told C.C. he wanted to buy "a 20" ($20 worth of crack cocaine.) C.C. left for the men's room and returned with a plastic baggy. He held it up waist high or higher to show them that the baggy contained crack cocaine. He removed some of the crack from the baggy and gave it to the CI. 5/ After examining the crack, the CI told Agent Murray to pay C.C. the $20. There were about 15 people in the Club during the transaction on May 31, 1991. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. 6/ No extraordinary effort was made to hide the transaction on May 31, 1991. /7 But neither was the transaction done in an open manner for all to see. The evidence was not clear whether anyone in the bar during the transaction on May 31, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On June 7, 1991, Agent Murray and the CI again entered the Club. There they talked to Wayne Fowler, who gave them the impression that he was employed at the bar as a manager or bouncer. (However, the evidence did not prove that Fowler was ever employed by the Respondent in any capacity.) The CI asked for C.C. Fowler told him that he (Fowler) was "holding C.C.'s stuff" and asked if they wanted to buy from him or wait for C.C. The CI said they would buy from Fowler, and Fowler passed some crack to the CI's lap, under the level of the bar (but not actually underneath the bar counter top). Agent Murray similarly passed a $20 bill to the CI, who passed it to Fowler. There were about 20 people in the Club during the transaction on June 7, 1991. But the evidence was not clear whether anyone in the bar during the transaction on June 7, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On June 12, 1991, the CI and Agent Murray, together with a backup from the Tampa Police Department, again went to the Club. This time, they did not see anyone in the Club to buy drugs from, and the CI and Agent Murray were leaving when Fowler came in and met them in the foyer, which was not visible from throughout the Club's interior. Fowler immediately asked them if they wanted to buy crack. They said yes, and Fowler sold them "a 20." The whole transaction took no more than four or five seconds. The participants in the transaction on June 12, 1991, spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone passing through the foyer at the time. Although there ordinarily are people entering and leaving the Club through the foyer at fairly regular intervals, it was not proven that anyone passed by during the couple of seconds the drug deal lasted. 8/ The evidence was not clear whether anyone in the bar during the transaction on June 12, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On June 14, 1991, the CI and Agent Murray again went to the Club Zanzibar to make a drug buy. Shortly after they entered and sat down at the bar, Fowler came in and went over to them at the bar and asked if they wanted to buy crack. They told him they did, and Fowler left the premises. He returned a short while later and walked up behind the empty stool between them and shook some crack out of a handkerchief onto the empty stool. (The bar stools had a back; and the seats were below bar level.) The CI picked up the crack and gave it to Agent Murray, who gave Fowler a $20 bill. There were about 15 people in the Club during the transaction on June 14, 1991. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transaction on June 14, 1991. But neither was the transaction done in an open manner for all to see. The crack was blocked from general view by the bar on one side, by the bar stool back and Fowler on the opposite side, and by the CI and Agent Fowler on either side of the empty stool. The whole transaction took only about five seconds. Although there were people moving about in the Club, as usual, the evidence did not prove that anyone in the bar during the transaction on June 14, 1991, observed the drug deal. On June 18, 1991, the CI, Agent Murray and their backup undercover detective from the Tampa Police Department returned to the Club Zanzibar to make drug buys. Although there were about 15 people in the premises, apparently no one was selling drugs to them, and the CI left to try to find Fowler. The CI found out that a man named Don Vanderhorst was holding Fowler's crack and would sell some to them. Vanderhorst returned with the CI to the Club. There, Vanderhorst showed them a plastic bag containing crack, holding it in a partially concealed manner between waist and chest height, sold them $10 of crack and left. After buying from Vanderhorst on June 18, 1991, the three law enforcement personnel stayed on the premises. A short time later, Fowler came in and went directly over to the CI and Agent Murray to see if they wanted to buy some more crack from him. Fowler passed to the CI, at waist level, a piece of crack folded up in a torn piece of brown paper the size of a quarter coin. Fowler said he would sell it to them for $10. He changed a $20 bill for them and made the sale. There were about 15 people in the Club during the transactions on June 18, 1991. The participants in the transactions spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transactions on June 18, 1991. But neither were the transactions done in an open manner for all to see. View of the Vanderhorst transaction was blocked from the back and sides by the three participants. Although customers generally move around and about inside the Club on a fairly regular basis, these transactions took place on the side of the "U"-shaped bar opposite the entrance to the Club, between the bar and the right hand perimeter wall of the premises, near the corner where one end of the bar "dead-ends" on that side into the front perimeter wall of the inside of the premises. There generally is much less traffic in this area since it is a "dead end." An unidentified female bartender might have been able to observe the transactions, but the evidence was not clear whether anyone in the bar during the transaction on June 18, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On June 19, 1991, the CI and Agent Murray returned to the Club Zanzibar. This time, Fowler was seated at a table inside. After they were seated at the bar, Fowler approached them and asked them what they wanted. Agent Murray answered that they wanted "a 20." Fowler told them quietly and privately that they would have to wait because of the customer seated next to Agent Murray. When the customer left, Fowler proceeded to take out a folded up torn piece of brown paper. Holding it at waist level, he showed them the crack that was in it. He took two pieces and passed them to the CI, who passed them to Agent Murray, who gave the CI a $20 bill to give to Fowler. There were about 15 people in the Club during the transactions on June 19, 1991. The participants in the transaction spoke in a quiet tone in the presence of the customer seated next to Agent Murray but otherwise in a normal conversational tone. The juke box was playing, as usual, and the normal conversational tone probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transaction on June 19, 1991. But neither was the transaction done in an open manner for all to see. The participants partially blocked the view from the back and sides. The evidence did not prove that anyone in the bar observed the drug deal on on June 19, 1991. On June 24, 1991, Fowler and Vanderhorst were outside talking when the CI and Agent Murray arrived at the Club Zanzibar. Shortly after they entered, Fowler came in and approached them to ask them if they wanted to buy crack. Fowler said that Vanderhorst was "holding my stuff." He left and went to the back of the bar (where the bathrooms are). (Apparently, Vanderhorst also had entered the Club with Fowler and went to the back of the premises, perhaps to the bathroom.) Fowler returned with two pieces of crack which he passed to the CI. Agent Murray gave Fowler $20. There were about ten people in the Club during the transaction on June 24, 1991. No extraordinary effort was made to hide the transaction. The evidence was not clear whether anyone in the bar during the transaction on June 24, 1991, other than the participants, observed the drug deal or heard any of the related conversation. When the CI and Agent Murray arrived at the Club Zanzibar on July 1, 1991, once again Fowler and Vanderhorst were outside on the street. Fowler followed the two inside and approached them to ask if they wanted crack. They said they did, and Fowler passed some crack to the CI for $20. There were about 20 people in the Club during the transaction on July 1, 1991. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transaction on July 1, 1991. But neither was the transaction done in an open manner for all to see. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence was not clear whether anyone in the bar during the transaction on July 1, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 5, 1991, the CI and Agent Murray entered the Club Zanzibar to buy drugs but did not see anyone to sell to them. The CI had to go outside looking for Fowler. He found Fowler, who told him he (Fowler) was waiting for his "supply," i.e., the person supplying him with cocaine. The CI brought Fowler back into the Club with him. There, Agent Murray asked Fowler for "some play," i.e., some crack to buy. Fowler told her he would have to "cut" it, i.e., convert it to crack, and left. About five minutes later, Fowler came back in and passed a piece of crack to the CI. There were about 10-15 people in the Club during the transaction on July 5, 1991. The Respondent and his sister were working on the premises on July 5, 1991. No extraordinary effort was made to hide the transaction on July 5, 1991. But neither was the transaction done in an open manner for all to see. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence was not clear whether anyone in the bar during the transaction on July 5, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 8, 1991, Fowler again was outside on the street when the CI and Agent Murray arrived at the Club. Fowler followed them inside. The Respondent was tending bar. Fowler quietly and privately told the CI and Agent Murray that they would have to watch out for the Respondent. Fowler left them and returned in a minute or two. Fowler kept a close eye on the Respondent and, about three or four minutes later, got an opportunity to do the drug deal without the Respondent seeing it. While keeping a close eye out for the Respondent, Fowler passed two pieces of crack to the CI, who passed the crack to Agent Murray. Murray passed $20 back to Fowler through the CI. Besides the Respondent, there were about 10 people in the Club during the transaction on July 8, 1991. Except when they were lowering their voices so the Respondent would not hear them, the participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. Except for the efforts to keep the Respondent from seeing it, no other extraordinary effort was made to hide the transaction on July 8, 1991. But neither was the transaction done in an open manner for all to see. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence was not clear whether anyone in the bar during the transaction on July 8, 1991, other than the participants, observed the drug deal or heard any of the related conversation. When the CI and Agent Murray arrived at the Club on July 16, 1991, they again saw Fowler outside on the street. Fowler followed them in but stopped in the foyer area and beckoned them to come to the foyer. There, Fowler informed them that the Respondent had barred him from the Club and that they would have to do the deal on the street. The CI protested that he did not want the police to see him. Fowler left, and the CI and Agent Murray returned to the Club. When they left the Club some time later, Fowler met them in the foyer. Within a matter of five to ten seconds, Fowler had passed a single piece of crack to the CI, and Murray passed $20 to Fowler. Although there ordinarily are people entering and leaving the Club through the foyer at fairly regular intervals, it was not proven that anyone passed by during the couple of seconds the drug deal lasted. The evidence was not clear whether anyone in the bar during the transaction on July 16, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 18, 1991, Fowler was sitting outside on the street when the CI and Agent Murray arrived at and entered the Club. Fowler did not follow them in. Vanderhorst was inside, and they asked him for crack, but he did not have any to sell. Eventually, they left. Fowler apparently had been waiting for them in the street and, as the CI opened the door to exit the premises, Fowler met him and kept the door propped open while he offered to sell them crack. Fowler passed crack to CI, and Murray gave the CI $20 to give to Fowler. People were walking by on the street, and it would have been possible for someone in the street or walking into the foyer to observe the drug deal that took place on July 18, 1991. But it was not proved that anyone in the bar during the transaction on July 18, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 22, 1991, Fowler stopped the CI and Agent Murray before they could even get into the Club. Again dealing in the doorway with the door propped open, Fowler passed crack to the CI (in a manner such that Murray herself, who was not looking directly at the transaction, was unable to observe it). The CI passed the crack to Murray, who gave Fowler $20. Again, as on July 18, people were walking by on the street, and it would have been possible for someone in the street or entering the foyer to observe the drug deal that took place on July 22, 1991. But it was not proved that anyone in the bar during the transaction on July 22, 1991, other than the participants, observed the drug deal or heard any of the related conversation. The next day, the CI and Agent Murray returned to the Club Zanzibar. They didn't see Fowler or Vanderhorst. The CI saw someone named Eddie Hall, who was known to the CI to be a "watch dog" for drug pushers. The CI approached him and asked for Fowler and Vanderhorst. Hall left looking for them and returned to tell them that the Respondent had barred Fowler from the Club and that he couldn't come in. Hall told the CI that Fowler was outside and would sell them "a half a packet" (apparently, four pieces of crack) for $20. Just then, Fowler appeared just inside the entrance to the Club and beckoned the CI and Murray to come to him. In all, Fowler was inside the Club for just a matter of seconds (four to five). Fowler met them in the foyer, and the CI told him that they declined the offer to sell "a half a packet" because they were looking for a full "packet." Fowler became irate, apparently at the illogic of their refusal to buy anything. He yelled and screamed and carried on for thirty seconds to a minute until they were in the street. Eventually, the CI and Agent Murray relented in their dubious position and bought a "half a packet" for $20 on the street in front of the Club. 9/ Except for Fowler's yelling and carrying on in the foyer and in the street, the participants in the transaction on July 23, 1991, spoke in a normal conversational tone. The juke box was playing, as usual, and the conversational tone probably could be overheard only by someone sitting immediately adjacent to the participants. As for the Fowler's yelling and screaming, it might have been heard by the bartender, a female named Brunette, and she did not do anything about it before they all moved into the street, but the evidence did not prove that she would have been able to tell that Fowler's yelling and screaming necessarily involved a drug deal. The evidence did not prove that anyone in the bar during the transaction on July 23, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 25, 1991, the CI and Agent Murray again went to the Club Zanzibar. The Respondent was behind the bar. His sister was working there, too. After a time, the Respondent left, and Eddie Hall approached them. He told them that the Respondent was gone and that Fowler wanted to see them outside. The CI objected to doing the deal in the street and went to the front door of the Club and called out to Fowler to come in. Fowler went as far as the foyer and met them there. No employees were nearby. In conducting the transaction, Fowler accidentally dropped a white crack "rock" on the foyer floor. He nonchalantly bent down as if he were tying his shoe and picked it up. 10/ Fowler passed the crack to CI, who passed it to Agent Murray, who gave the CI $20 to give to Fowler. Other than Fowler's effort to pick up the crack he had dropped without attracting attention, no other extraordinary effort was made to hide the transaction on July 25, 1991. But neither was the transaction done in an open manner for all to see. It was conducted in the foyer where no employee saw it. Indeed, there is no evidence that anyone saw the transaction other than the participants. There is no evidence that anyone in the bar during the transaction on July 25, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 26, 1991, the CI and Agent Murray returned to the Club Zanzibar. As they were about to enter, they saw Vanderhorst just outside. Vanderhorst followed them in. The CI went over to Vanderhorst to ask about crack. Vanderhorst said Fowler was waiting to get some from his girl friend. He left to look for them. Later, Vanderhorst returned and told the CI and Murray that Fowler had some crack and would meet them in the foyer. They went to meet Fowler and bought $20 of crack from him. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transaction on July 26, 1991. But neither was the transaction done in an open manner for all to see. It was conducted in the foyer where no employee saw it. Indeed, although there were 10-15 people in the Club at the time, there is no evidence that anyone in the bar during the transaction on July 26, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On August 2, 1991, Vanderhorst followed the CI and Agent Murray into the Club Zanzibar. Vanderhorst approached them and told them his crack was in his car. Vanderhorst left and returned with a $10 piece of crack. The drugs and money passed inside the bar. There were about 10-15 people in the Club during the transaction on August 2, 1991. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transaction on August 2, 1991. But neither was the transaction done in an open manner for all to see. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence did not prove that anyone in the bar during the transaction on August 2, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On August 14, 1991, the CI and Agent Murray went to the Club Zanzibar and apparently found no one to sell them drugs. The CI went outside to find someone named "Dragon," who was leaving when they came in. The CI returned with someone named James Royal, who had "some dubs" and sold them "a 20" of crack. Royal passed the crack to the CI at chest height (i.e., above the bar). Holding it between his two fingers, the CI showed it to Murray for a few seconds (three or four) before giving it to her. Murray gave Royal $20 for the crack. There were about 15 people in the Club during the transaction on August 14, 1991. No extraordinary effort was made to hide the transaction on August 14, 1991. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence did not prove that the two female bartenders on duty--Pat and Lena--or anyone in the bar during the transaction on August 14, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On August 26, 1991, the Respondent was working in the package store when the CI and Agent Murray entered the Club Zanzibar. Lena was tending the bar. A man known as Adelbert Cliatt or Al Clyde (Clyde) came up to the CI, who asked if Clyde was "still in the business." Clyde said he was but that someone else was holding his "stuff" to reduce the chances that he would get caught. During the conversation between Clyde and the CI, the Respondent came into the Club to try to fix the juke box. The Respondent was kneeling with his back to the bar, about 8-10 feet away from where they were sitting at the bar. While the Respondent was still working on the juke box, someone named Toby Adams came in and joined them. Clyde told Adams, apparently the person holding Clyde's crack, that the CI had asked for "a 20" and to go get. Adams gestured towards the Respondent, afraid to discuss it further or to deal while the Respondent was there. Clyde and Adams then left the Club. When they returned with the drugs, Clyde and Adams just stood behind where Murray and the CI were seated at the bar and waited until the Respondent was finished with the juke box and returned to the package store. Then Clyde took out a piece of crack on a piece of paper to display it to the CI at about chest level. Twice during the five or seven seconds Clyde was displaying the crack to the CI, the CI told Clyde in hushed tones to lower the crack so that it would not be as easy for others to see. The CI also complained that it was not "a 20," but Clyde insisted that it was, pointed out that he was also selling the "shake," i.e., the loose crack particles, that was on the paper. Clyde then folded the paper and gave it to the CI. While the Respondent did not return to the bar area while the transaction was taking place on August 26, 1991, Lena was in the vicinity the whole time and was able to see what was happening, but she showed no interest and did nothing to stop it. It was not proven that the Respondent or any other of the 15 or so people in the Club, other than the participants, observed the drug deal or heard any of the related conversation. Two days later, on August 28, 1991, Agent Murray and the CI returned to the Club Zanzibar and met Fowler on the street outside the Club. As the three headed towards the entrance, Fowler reminded them that he was barred from the Club, and Fowler passed crack to Murray in the foyer. There was no evidence that anyone other than the participants saw the transaction or knew that drugs had been passed. Agent Murray and the CI then continued into the Club. Although Fowler had not yet been paid for the crack, he did not follow them but stopped at the end of the bar nearest the entrance. The Respondent saw Fowler and went over to talk to him. The evidence was not clear what was said, but no more than a minute later, Fowler left. 11/ While the CI and Agent Murray were inside the Club, someone named Clements came in and approached them to tell them that Fowler was "waiting for his package," i.e., his $20. The CI told him, "later," and Clements left. A little while later, Fowler came back into the Club, went up to the CI and Murray at the bar near the entrance, and began to yell at them for not giving Clements Fowler's money. The CI or Murray apparently told Fowler to keep it down, because Fowler informed them that he had seen the Respondent leave, apparently to assure them that it was safer now (even though Brunette still was there). While Agent Murray handed Fowler the money, the CI explained to Fowler that they were not sure Clements would give Fowler the money and that they wanted to give it to him personally. This seemed to satisfy Fowler. Brunette was able to hear Fowler arguing loudly with Murray and the CI and did not intervene or try to find out what the argument was about. But the evidence did not prove that Brunette could hear or could tell what it was that they were saying. The CI and Agent Murray were back at the Club on September 10, 1991. Apparently, there was no one inside to sell them drugs, so the CI went outside. On his return, he told Murray that Fowler was outside "doing a deal." A while later, Fowler came into the Club and joined them. He held a small brown bag up to about chest level to show them the crack inside and then gave it to them. Agent Murray gave Fowler $20. During the conversation between the CI and Fowler on September 10, 1991, the CI asked if Fowler was "back in with " the Respondent, to which Fowler answered that he was. The evidence was not clear whether the CI meant, or that Fowler understood, anything by the question other than that the CI thought Fowler was barred from the Club and was surprised to see him back inside. The CI also asked Fowler if Fowler worked at the Club. Fowler glanced back at the CI, making a face as if to ask, "are you crazy?" and answered, "no way." The CI then asked, "you mean [the Respondent] wants to bar you but still wants you to do favors for him?" and Fowler answered, "yes." However, again, the meaning of this exchange was ambiguous. There were about ten people in the Club during the transaction on September 10, 1991. No extraordinary effort was made to hide the transaction. The Respondent was not there. The bartender on duty, Debra, was new and did not work at the Club very long before her employment was terminated. The evidence was not clear whether she witnessed the transaction or heard the conversation, or heard or saw anything suspicious (although it is possible that she did.) The transaction took place on the side of the bar opposite the entrance to the Club, between the bar and the right hand perimeter wall of the premises, half way to the corner where the "U"-shaped bar "dead-ends" on that side into the front perimeter wall of the inside of the premises. Although customers generally circulate fairly regularly throughout the premises, there generally is much less traffic in this area since it near the "dead end." See Finding of Fact 22, above. There were people playing dominos at a low table in the corner behind the bar where the transaction occurred, but it was not proven that the transaction could have been observed from the domino table. The evidence did not prove that anyone in the bar during the transaction on September 10, 1991, other than the participants, observed the drug deal or heard any of the related conversation. The CI and Agent Murray returned to the Club on September 13, 1991. The Club was crowded; there were 20-25 people there. Lena was tending bar; the Respondent's wife was in the package store; the Respondent himself was not there. At one point, while the CI and Murray were seated at the bar, a man called "Big John" Polite walked up to them, and the CI told him that Murray wanted "a 20." Polite asked if they wanted to do the deal in the Club, and the CI said, "yes." Polite left to go to the men's room, where he said his crack was, and returned to where they were sitting. He walked up between them and passed the crack to the CI under bar level. The CI passed it to Murray, who put it on a napkin on the bar counter top, wrapped it up, and put it in her pocket. Murray then passed $20 to Polite. The man sitting next to Murray at the bar on September 13, 1991, easily could have seen the crack, but the evidence did not prove that he did, or that he would have known what it was. Others also could perhaps have recognized that a drug transaction was occurring, but the evidence did not prove that anyone else in fact knew it was happening. With the juke box playing, and the crowd making noise, probably only someone actually involved in the conversations with Polite would have been able to hear them. When the CI and Agent Murray were in the Club on September 17, 1991, it was again crowded, with about 25 people inside. Brunette and a man named Carl were tending bar. There was confusion in the testimony as to who Carl was. The CI understood him to be the Respondent's cousin, Carl Jordan. The Respondent testified that he had no cousin named Carl Jordan. He admitted he had a cousin name Carl Warmack, who sometimes accompanied him to the Club, but said his cousin Carl was severely retarded and incapable of tending bar or doing anything other than simple menial chores. The CI and Agent Murray did not seem to think that the person they identified as Carl Jordan was retarded. Seated at the bar on September 17, 1991, on the side where there is less traffic circulating, 12/ Murray and the CI observed an unidentified female patron holding three crack "rocks" in her open palm while fingering them with her other hand. She did this in the open so that others seated on that side of the bar also would have been able to see. But it was not proven that anyone else in fact saw what she was doing or knew she had crack in her hand. A little later, Clyde walked up to them, and Murray asked for "a 20." Clyde left and returned shortly to pass some crack to Murray under bar level. Murray put the crack in her pocket and passed $20 to Clyde. "Carl" did nothing about the drug deal between Clyde and Murray. Much of the time while this transaction was taking place, "Carl" was talking to the CI within about three feet from where Murray was sitting. He could have seen the transaction but the evidence did not prove that "Carl" in fact saw it or knew it was taking place. Nor did the evidence prove that Brunette saw the transaction or knew it was taking place. On September 19, 1991, Agent Murray and the CI again went to the Club. Lena was tending bar. The Respondent's daughter also was there. It was crowded, with about 25 people inside. During the time they were there, Murray saw Clyde and asked him for "a 20." Clyde pulled a small brown bag out of his shirt pocket, took out three pieces of crack, and passed them to Murray below the level of the bar where they were sitting. Murray then passed Clyde $20. There were people sitting all around the bar, but the evidence did not prove that anyone saw the transaction to that point. Then, Murray held the crack up for Lena to see and asked her if it was "hard white," a common illegal drug dealing slang intended to describe the potentially dangerous kind of crack that is "cut" with baking soda. Lena lit a cigarette lighter to see it better, looked at it for a moment and answered, "it looks beige to me." Crack that is "cut" in the acceptable manner has a beige-like color and is referred to as "beige" in illegal drug dealing slang. It is found that Lena was using the drug dealing slang. On September 26, 1991, Agent Murray and the CI were at the Club sitting at the bar. The CI called over to a man named David Glover, a/k/a Jake, who was playing dominoes. Glover came over and sat in the bar stool next to the CI. There, Glover sold the CI crack for $25. There were 15-20 people in the Club on September 26, 1991. No extraordinary effort was made to hide the transaction. But neither was the transaction done in an open manner for all to see. This transaction took place on the side where there is less traffic circulating. See Finding of Fact 61, above. However, after the deal, the CI called the bartender, Debra, over and asked for a napkin. He put the crack on the napkin on the bar counter top and asked her if she knew what it was. She looked at it and, knowing what it was, simply said, "you better get it off the bar." Debra was terminated shortly afterwards for reasons not disclosed by the evidence. (The Respondent said only that "she didn't work out.") According to the evidence, Agent Murray's last visit to the Club Zanzibar was on October 8, 1991. She and a backup sat at the part of the bar closest to the domino table. Clyde walked up, and Murray asked for "a 20." She gave him $20, and Clyde went to the domino table to talk to someone and then left. The unidentified person with whom he had spoken came over and told Murray that he could get whatever she wanted if Clyde couldn't. Murray told him that Clyde had just left with her money and that she hoped Clyde had what she wanted. A little later, Clyde returned and passed Murray a crack "rock" at the bar under bar level height. After the deal with Clyde, the Respondent walked behind and past where Clyde and Murray were, but the evidence did not prove that the Respondent saw anything suspicious occurring. After the drug deal with Clyde, Murray beckoned to the unidentified male with whom she had spoken earlier. He gestured acknowledgement and came over shortly. Murray asked him for $10 worth of crack. He said he would get it and returned shortly to say it would have to be "a 20." Murray said, "OK," and passed him a $20 bill. He passed her the crack at waist level as he walked past her. There were about 15 people in the Club on October 8, 1991. The Respondent was there. Brunette and "Carl" were behind the bar. No extraordinary effort was made to hide the transaction. But neither was the transaction done in an open manner for all to see. From where Murray was sitting, her back and Clyde's back were between the transaction and the domino table. The unidentified pusher sneakily slipped the crack to Murray as he walked past between her and the vantage from the domino table. The evidence did not prove that anyone in the bar during the transaction on October 8, 1991, other than the participants, observed the drug deal or heard any of the related conversation. The Respondent testified that he later barred Clyde for drug activity. On or about October 10, 1991, the Club Zanzibar was raided by Tampa Police, arrests were made, and an Emergency Suspension Order issued by the Department was served. The Club has not been in operation since then. There is no evidence that the Respondent ever asked the Division or the Tampa Police for help in controlling illegal drug use on his premises. He did not ask the police to send undercover agents into the area and his establishment to make cases against customers who broke the drug laws or to "test" his employees. There is no evidence that the Respondent gave the Tampa Police intelligence information regarding the source of illegal drugs in the area. Nor did he work as closely or as diligently with local community leaders as he could have. Since the Club Zanzibar has been closed, illegal drug activity in the immediate vicinity has decreased markedly. This is a common occurrence for some period of time after a police raid. Longer periods of decreased drug activity also can be explained by the arrest of some of the participants in the illegal activities and by the fewer number of people in the area, which translates to fewer potential drug buyers in the area. The extended duration of decreased illegal drug activity after the raid in this case (almost two months, through the time of the final hearing) is somewhat unusual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order suspending the Respondent's license for six months from entry of final order and fining the Respondent $1,000. RECOMMENDED this 21st day of February, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1992.
Findings Of Fact Based on the stipulations of the parties, the exhibits received in evidence, and the testimony of the witnesses at the hearing, I make the following findings of fact. Sweet's Lounge, Inc., held alcoholic beverage license number 16-350, Series 2-COP, for the location of Sweet's Lounge, 706-710 Northwest First Street, Dania, Florida, at all times relevant to the charges in this case. On April 24, 1985, Beverage Investigator Frank Oliva drove his automobile to the front of the premises of Sweet's Lounge. He was approached by a male who asked what he wanted, and Oliva responded that he wanted "Boy," a street name for heroin. The male answered that he did not have any. Another male approached Oliva, who again indicated that he wanted some "Boy". Oliva observed the male enter the premises of Sweet's Lounge. Beverage Investigator Alphonso Junious was inside the licensed premises of Sweet's Lounge and observed the entire transaction with Oliva. He observed the male enter the premises of Sweet's Lounge and approach a female patron known as Ramona, who handed the male a tinfoil package. The male returned to Investigator Oliva and exchanged the tinfoil package for $20.00. The male then reentered Sweet's Lounge and gave the $20.00 to Ramona. The substance alleged to be heroin was laboratory analyzed to contain no controlled substances. On April 25, 1985, Beverage Investigator Frank Oliva returned to the front of the premises of Sweet's Lounge. He discussed the purchase of some "Boy" from an individual named William Rainey. Rainey went inside the premises of Sweet's Lounge and returned with a tinfoil package which he delivered to Oliva in exchange for $20.00. The substance alleged to be heroin was laboratory analyzed to contain no controlled substances. On April 25, 1985, Investigator Junious returned to the premises of Sweet's Lounge. The on-duty barmaid, Beatrice, left the premises for a short time and asked a female, later identified as the barmaid Linda, who was sitting at the end of the bar counter smoking a marijuana cigarette, to watch the bar until Beatrice returned. Beatrice said nothing to Linda about the marijuana cigarette. Linda walked behind the bar and continued smoking the marijuana cigarette while performing bartending duties. When Beatrice re-entered the premises, Ramona was standing in the doorway handing a tinfoil package to a male in the view of Beatrice. Junious entered into conversation with Ramona and, during the conversation, Ramona delivered a small tinfoil package to an unknown male patron. Investigator Reylius Thompson was also inside the premises of Sweet's Lounge on April 25, 1985. He observed several patrons smoking marijuana cigarettes, which he was able to identify through their appearance, smell, and the manner of smoking. On May 1, 1985, Investigators Junious and Thompson returned to the licensed premises of Sweet's Lounge. They observed the bartender Beatrice seated at the bar counter with two male patrons who were smoking a marijuana cigarette. After the bartender Linda came on duty, the officers observed her remove a marijuana cigarette from her purse and begin to smoke it behind the bar counter. Junious asked Linda for change for a $20.00 bill so he could buy cocaine. Linda asked what Junious wanted, and he told her a $10.00 piece of cocaine. Linda removed a tinfoil package of cocaine from her purse behind the counter and sold the cocaine to Junious for $10.00. While Investigator Thompson was seated at the bar on May 1, 1985, he also asked Linda for some cocaine. Linda again removed a tinfoil package of cocaine from her purse and delivered it to Thompson in exchange for $10.00. On May 3, 1985, Investigators Junious and Thompson returned to the licensed premises of Sweet's Lounge. While Beatrice was bartender, Junious observed several patrons smoking marijuana cigarettes. After Linda came on duty, Junious asked to purchase $10.00 piece of cocaine from her. Linda requested Beatrice to hand her her purse, from which she removed a tinfoil package of cocaine. Junious observed a plastic bag containing numerous tinfoil packages inside of Linda's purse. Linda sold the package of cocaine to Junious for $10.00 While Investigator Thompson was sitting at the bar on May 3, 1985, he asked Linda for some cocaine. Linda asked Beatrice to pass her purse to her from behind the bar. Beatrice handed the purse to Linda and Linda took out a tinfoil package of cocaine which she sold to Thompson for $10.00 On May 8, 1985, Investigators Junious and Thompson returned to Sweet's Lounge. While the investigators were seated at the bar counter, they observed three male patrons also seated at the bar counter smoking a marijuana cigarette in the presence of Beatrice, the bartender. After Linda came on duty, Junious asked her for a $10.00 piece of cocaine. Linda removed her purse from behind the bar, removed a tinfoil package of cocaine from her purse, and sold the cocaine to Junious for $10.00. Later that evening, Thompson asked bartender Linda for a $10.00 piece of cocaine. She again removed a tinfoil packet containing cocaine from her purse and sold the cocaine to Thompson. ll. On May 10, 1985, Investigators Junious, Thompson and McKeithen went to Sweet's Lounge. Junious asked the bartender Linda for $10.00 worth of cocaine, and she replied that she only had rocks. Junious agreed to purchase the rocks and received a tinfoil package of cocaine from Linda, which she had removed from her purse behind the bar. Later that same evening, Investigator Thompson also asked Linda for $10.00 worth of cocaine. She removed from her purse a tinfoil package containing cocaine which she sold to Thompson for $10.00. That same evening Investigator Thompson observed a male disc jockey smoking marijuana in the presence of patrons and passing the marijuana cigarette to some of the patrons. On May 14, 1985, Investigators Thompson and McKeithen returned to Sweet's Lounge. Thompson observed four patrons seated at a table cutting a white powder and snorting it from the top of the table. He also observed Ramona and a male patron, while seated at the bar, snort a white powder through an empty cigarette paper tube in view of the bartender Beatrice. On May 15, 1985, Investigators Junious and Thompson returned to Sweet's Lounge. Junious asked the bartender Linda if she had any cocaine, and she responded that she did but Junious would have to wait until she served a customer. After serving a customer, Linda sold Junious a small tinfoil package containing cocaine for 510.00. Junious also observed several patrons smoking marijuana cigarettes, sniffing white powder, and removing tobacco from regular cigarettes, inserting white powder into the cigarettes, and smoking same. On that same date, Investigator Thompson also asked Linda for cocaine. She replied that she had rock or powder cocaine and Thompson ordered rock. Linda walked into the package store portion of the lounge and returned shortly to Thompson, handing him a tinfoil package containing a small rock of cocaine in exchange for $10.00. On that same date Thompson observed Ramona using an empty cigarette paper tube to snort a white powder. On May 22, 1985, Investigators Junious and Thompson entered the licensed premises of Sweet's Lounge. The officers observed patrons seated at the bar counter smoking a marijuana cigarette in the presence of bartender Beatrice. The officers also observed Ramona seated at a table with several male patrons, all of whom were snorting a white powder from the table top and smoking a white powder in cigarettes. On May 29, 1985, Investigator Thompson returned to Sweet's Lounge. He observed Linda smoking a marijuana cigarette behind the bar counter and observed Ramona sitting on the west side of the premises with a quantity of white powder on the table. Thompson approached Ramona, sat down next to her, and began to talk to her about cocaine. While Thompson was seated with Ramona another female patron smoked a marijuana cigarette. Later that same evening, Thompson asked bartender Linda for cocaine and she responded that she had rock or powder. He ordered powder and Linda removed a tinfoil package of cocaine from her purse, which she sold to Thompson for $10.00. On the majority of the occasions described above when the investigators were inside the premises of Sweet's Lounge, there was a pervasive odor of marijuana smoke throughout the entire premises. The white powder which was being sniffed by patrons on the licensed premises at the various times described above was cocaine. In brief summary, the following relevant events took place at the licensed premises during the period of the investigation: 4/24/85: A patron participated in sale of a counterfeit controlled substance. 4/25/85: A patron participated in sale of a counterfeit controlled substance, an employee smoked a marijuana cigarette while on duty, and a patron delivered two small tinfoil packages to other patrons, and several patrons smoked marijuana cigarettes. 5/01/85: Two patrons smoked a marijuana cigarette, an employee smoked a marijuana cigarette while on duty, and an employee made two sales of cocaine. 5/03/85: Several patrons smoked marijuana cigarettes, and an employee made two sales of cocaine. 5/08/85: Three patrons smoked marijuana cigarettes in immediate presence of an employee, and an employee made two sales of cocaine. 5/10/85: A disc jockey smoked marijuana and shared it with patrons, and an employee made two sales of cocaine. 5/14/85: Six patrons sniffed cocaine; two did so in immediate presence of an employee. 5/15/85: Several patrons smoked marijuana and sniffed cocaine, and an employee made two sales of cocaine. 5/22/85: Several patrons smoked marijuana cigarettes in the immediate presence of an employee and several patrons sniffed cocaine. 5/24/85: A patron had cocaine in open view on a table, a patron smoked a marijuana cigarette, an employee on duty smoked a marijuana cigarette, and an employee made one sale of cocaine. Mr. Ebbie Sweet was never on the licensed premises on any of the occasions described above when the investigators were on the licensed premises. At all times material to this case, Mr. Andrew Johnson has been the manager of Sweet's Lounge. The owner, Mr. Ebbie Sweet, has given the manager various instructions about the operation of the premises. The instructions include: (a) keep the premises clean, (b) keep drugs out of the premises, (c) tell all employees to do the same, (d) put up signs about what can and cannot be done on the premises [including a sign reading "No Drugs Allowed"], (e) post the DABT flyer, and (f) put a "no loitering" sign outside the premises. The "no loitering" sign has not worked very well. When Mr. Andrew Johnson is on the premises he spends most of his time in the package store portion of the premises and very little of his time in the bar portion. On one occasion prior to the events described above, the Dania Police Department told Mr. Andrew Johnson there was a drug problem in Sweet's Lounge. He told them to come in anytime they wanted to and to arrest anyone they wanted to. Mr. Johnson did not change any procedures at Sweet's Lounge after the Dania Police Department told him about drug problems. Mr. Andrew Johnson knows Ramona. He has never seen her buy or use drugs, but he has heard that she is suspected of being a drug user. Ramona was a frequent visitor at Sweet's Lounge. Mr. Ebbie Sweet is the president of and the principal functionary of Sweet's Lounge, Inc. A sister and a nephew of Mr. Sweet also have some nominal connection to the corporation, but neither of them is active in running the licensed business. Mr. Ebbie Sweet enjoys an excellent reputation in his community. He is active in community affairs and has engaged in various charitable activities for the betterment of his community. It has always been his desire to run a reputable business and if he had known what was going on inside the lounge he would have fired those involved and would have closed the place up himself. In sum: Mr. Ebbie Sweet appears to be a good citizen who was trying to do the right thing. Unfortunately, for both him and the community, he wasn't trying quite hard enough. Some time ago Mr. Ebbie Sweet's wife passed away. As a result of that misfortune Mr. Sweet slowed down a lot and became less active in many things, including the amount of time and energy he devoted to the licensed business. He had at one time visited the licensed premises on a regular basis, but during the past ten months he only made a couple of trips a month to the licensed premises, and those were primarily to check on the inventory. During the past ten months he has hardly ever visited the licensed premises after dark. Mr. Sweet was relying on Mr. Andrew Johnson to manage things for him at the licensed premises even though he knew that Mr. Johnson was not the most reliable of managers. As Mr. Sweet put it, Mr. Johnson "has a few faults." Some years ago Mr. Sweet had an alcoholic beverage quota license which permitted him to sell all types of alcoholic beverages at Sweet's Lounge. When he had that license he had written instructions for his employees, he had doormen, and he had security guards. Since he sold the quota license and obtained his present license (which is limited to beer and wine sales), he has not had written instructions for his employees, he has not had doormen, and he has not had security guards. Mr. Sweet does not perform polygraph examinations or background checks on his employees. He has thought about hiring undercover people to patrol the premises, but has never done anything about it. The area of town in which Sweet's Lounge is located is one in which controlled substances are readily obtainable. Sweet's Lounge has had a recurring problem with undesirable people loitering in front of the lounge, people Mr. Sweet described as "hoodlums." All of the employees who worked in the bar portion of the licensed premises knew that marijuana and cocaine were being used by patrons inside the licensed premises on a regular, frequent, and flagrant basis. None of the employees took any action to prevent, discourage, or terminate the use of controlled substances by patrons. The foregoing findings of fact include the majority of the findings of fact proposed by the Petitioner. They do not, however, include any proposed findings based solely on the testimony of Investigator McKeithen. Some of the proposed findings based on McKeithen's testimony are irrelevant to the disposition of this case. Other proposed findings based solely on McKeithen's testimony are rejected because much of her testimony was neither persuasive nor convincing. While I have no doubts at all about her candor, honesty, or integrity, I have certain doubts about her attention to detail and her ability to recall and describe with accuracy events that took place in her presence. In making the finding that the employees who worked in the bar portion of the licensed premises were aware of the extensive use of drugs by patrons, I have not overlooked the testimony of the employees denying such knowledge. I find the denials to be unworthy of belief in light of all the other evidence in the record.
Recommendation For all of the foregoing reasons it is recommended that the Director of the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking alcoholic beverage license number 16-350, series 2-COP issued to Sweet's Lounge, Inc., for the premises located at 706-710 Northwest First Street, Dania, Florida. DONE AND ORDERED this 16th day of August, 1985, at 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 16th day of August, 1985. COPIES FURNISHED: Louisa Hargrett, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Chesley V. Morton, Esquire 604 Southeast Sixth Avenue Ft. Lauderdale, Florida 33301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr. Secretary The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue posed for decision herein is whether or not the Respondent, Gary Howland, engaged in conduct, which will be set forth hereinafter in detail, which is sufficient to warrant the Petitioner's suspension of this employment without pay in accordance with the rules of Petitioner as set forth in Chapter 6C-5.27, Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Respondent, Gary P. Howland, was employed by Petitioner in the Institute of Food and Agricultural Sciences as a visiting associate research scientist through an appointment which ended, by its terms, on June 30, 1979. On August 30, 1978, Respondent was charged with a felony, to-wit: unlawful possession and sale of a controlled substance in violation of Section 893.13(1)(a)(1), Florida Statutes. During September of 1978, Petitioner learned that Respondent was arrested and charged with the unlawful delivery and possession of a controlled substance. Petitioner immediately took steps to suspend and ultimately terminate Respondent's appointment. On September 26, 1978, Respondent was suspended from his position without pay. On October 11, 1978, Respondent challenged Petitioner's action in suspending him without pay and through an option exercised by Respondent, the matter was referred to the Academic Freedom and Tenure Committee on February 13, 1979. 2/ On May 10, 1979, Respondent filed a motion to dismiss the complaint which was then pending before the Academic Freedom and Tenure Committee. Pursuant to a consideration of Respondent's motion to dismiss the charges filed before the Academic Freedom and Tenure Committee (Committee), a decision was entered by that Committee recommending that Respondent's motion to dismiss be granted based on a determination that the University did not follow certain procedural safeguards. Specifically, the Committee recommended that: The matter not be sent to a plenary hearing; That the President determine that the suspension was unlawful; That Respondent be awarded back pay through June 30, 1979; and The President direct that Respondent's employment record show that he was not terminated for cause and that his suspen- sion was unlawful. By letter dated November 2, 1979, Respondent was advised by Petitioner's President, Robert Q. Marston, that the recommendation of the Committee was being rejected and the matter was transferred to the Division of Administrative Hearings pursuant to Section 120.57(1), Florida Statutes. 3/ Lee Cowart has been employed by the Alachua County Sheriff's Office for approximately three (3) years. During times material in 1978, he worked as an undercover agent in the Drugs and Narcotics section of the Sheriff's Office. On April 21, 1978, Officer Cowart met Respondent at the Main Street Lounge in Gainesville, Florida, and discussed the use, sale and purchase of four grams of cocaine for the agreed-upon price of three hundred dollars ($300.00). Officer Cowart observed the transaction via a visual surveillance of Respondent from a van. Officer Cowart paid Respondent three hundred dollars ($300.00) and took delivery of the substance, had it analyzed by the U.S. Department of Justice Drug Enforcement Administration, which analysis revealed that of 3.8 grams received, 29 percent thereof was cocaine hydrochloride. (Petitioner's Exhibit 1.) Officer Coward is trained as a field agent and has field tested approximately two hundred (200) samples of unlawful drugs during his career of employment with the Alachua County Sheriff's Office. Officer Cowart performed a field test of the substance delivered by Respondent, which test proved positive. Dr. F.A. Wood, Dean of Research, Food and Agricultural Sciences, was familiar with Respondent's tenure of employment at the University. Respondent joined the staff of the University during 1978 as a temporary appointee for a one-year term. Respondent was paid from funds received through a NASA grant. Pursuant to the terms of Respondent's appointment at the University, he did not earn tenure. Dean Wood considered Respondent's temporary suspension and decided that based on the evidence presented to him, that Respondent's suspension be made permanent. In making this decision, Dean Wood relied on the information gathered by the Vice President and the Academic Freedom and Tenure Committee. (Testimony of Dr. Wood.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Petitioner's suspension of Respondent without pay on September 26, 1978, be SUSTAINED. RECOMMENDED this 18th day of September, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1980.
The Issue The issue is whether the application for Alcoholic Beverage License No. 23-6847 received by the Department on June 21, 1985, should be disapproved: because the application discloses a person with a direct interest in the premises to be licensed (Mr. Farquharson) is ineligible for licensure pursuant to Section 561.15(2) and 561.17(1), Florida Statutes (1985), due to conviction for the sale of marijuana within the last five years, and for violation of Section 559.791, Florida Statutes (1985) for a material misstatement on the application by not disclosing these convictions?
Findings Of Fact An application for an alcoholic beverage license to permit consumption of beer and wine on a restaurant premises was filed by Pauline B. Farquharson which was received by the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco on June 21, 1985. "Exhibit 1). The application discloses that Barranett Farquharson born 7/1/52, has a direct interest in the premises to be licensed [Exhibit 1, page 18, Section I(6)(C)]. A personal questionnaire, Department of Business Regulation form DBR 71 OL for Barranett Farquharson was included in the application, which contained the following question and answer: "Have you ever been in this state, any other state, by the United States or by any foreign country: Arrested, charged or convicted of any violation of the law excluding minor traffic violations? Answer: Yes. On or about (1980-81). Arrested, possession of a weapon. Found not guilty." (Exhibit 2) The application also disclosed that the funds for the operation of the business, $60,000, had been obtained from personal funds in the amount of $4,934.09, and $56,065.91 from loans and mortgages. (Exhibit 1, page 11). A mortgage in the amount of $23,446.91 had been received from Standard Federal Loan Association of Gaithersburg, Maryland. A settlement statement included with the application, showed the borrowers as Barranett Farquharson and Pauline Farquharson. (Exhibit 1, pages 12-13). As part of the application, Mr. Barranett Farquharson was fingerprinted and the fingerprints were sent for examination to the Federal Bureau of Investigation. The Federal Bureau of Investigation responded with a report showing that the police department of New York City, New York had recorded the following arrest history, charges and charge disposition for Barranett Farquharson: 11/3/80 - Charged with possession of marijuana. Disposition: conditional discharge. 8/14/81 - Charged with sale of marijuana, possession of marijuana. Disposition: time served on criminal possession of marijuana. l0/14/82 - Charged with criminal possession of marijuana 4th, Criminal sale of marijuana 4th. Disposition: conditional discharge on criminal sale marijuana 4th. 11/3/82 - Charged with criminal sale marijuana 4th, unlawful possession marijuana. Disposition: sentenced to $50/30 days, fine paid on criminal sale of marijuana 4th. (Exhibit 4) A certified copy of the records of the Criminal Court of the City of New York was also entered into evidence as Exhibit 3. It disclosed that Barranett Farquharson, born 7/1/52, had been arrested and arraigned on charges of violating Section 221.15 of the penal law of the State of New York for the unlawful possession of marijuana and was adjudicated guilty of that charge on February 19, 1982. Mr. Farquharson was again arraigned on December 17, 1982 for violation of Section 221.40 of the penal law of the State of New York, criminal sale of marijuana in the 4th degree, and he received a conditional discharge. He was again arrested on November 3, 1982, arraigned on charges of violation of Sections 221.05 and 221.40 of the penal law of the State of New York on November 4, 1982, and he was found guilty of criminal sale of marijuana in the 4th degree and sentenced to pay a $250.00 fine. Section 221.05 of the penal law of the State of New York reads as follows: "Unlawful possession of marihuana. (VIOLATION)I A person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana. Unlawful possession of marihuana is a violation punishable only by a fine of not more than one hundred dollars. However, where the defendant has previously been convicted of an offense defined in this article or article 220 of this chapter committed within the three years immediately preceeding such violation, it shall be punishable (a) only by a fine of not more than two hundred dollars, if the defendant was previously convicted of one such offense committed during such period, and (b) by a fine of not more than two hundred fifty dollars or a term of imprisonment not in excess of fifteen days or both, if the defendant was previously convicted of two such offenses committed during such period." (Exhibit 6) Section 221.15 of the penal law of the State of New York provides: "Criminal possession of marihuana in the fourth degree. A person is guilty of criminal possession of marihuana in the fourth degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances of an aggregate weight of more than two ounces containing marihuana." Section 221.40 of the penal law of the State of New York provides: "Criminal sale of marihuana in the fourth degree. A/MISD.) A person is guilty of criminal sale of marihuana in the fourth degree when he knowingly and unlawfully sells marihuana except as provided on Section 221.35 of this article." (Exhibit 6)
Recommendation It is RECOMMENDED that the application for an Alcoholic Beverage License submitted by Mrs. Pauline Farquharson d/b/a Pauline's West Indian Restaurant be DENIED. DONE and ORDERED this 1st day of August, 1986, in Tallahassee, Florida. WILLIAM R. DORSEY, 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 August, 1986. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301-1927 Mrs. Pauline B. Farquharson 104 N. E. 205th Terrace Miami, Florida 33179 James Kearney, Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301-1927 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 S. Bronough Street Tallahassee, Florida 32301-1927
The Issue The issue is whether Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, (Division) should issue to Petitioner, Pinellas Lounge, Inc., (Petitioner) a quota alcoholic beverage license. Preliminary to these formal administrative proceedings, the Division had given Petitioner notice of its intent to deny Petitioner's application for licensure on the following grounds: Petitioner's corporate officer was not believed to be of good moral character; Petitioner was believed to have failed to fully disclose and list all persons having an interest directly or indirectly in the business sought to be licensed and Petitioner's corporate officer was believed to have falsely sworn to material statements in Petitioner's application.
Findings Of Fact Tina Z. Hacker, William H. Womack, and John M. Dickey, all entered the September 18, 1984, statutory lottery for entitlement to apply for available alcoholic beverage license or licenses in Pinellas County. Hacker, a 32-year-old woman, became known to Dickey, an older man who appears to be in his 60's, several years ago. They became friends, became more intimately involved and Hacker now lives with Dickey in Dickey's residence. Dickey, the manager of Best Western Governor's Inn in New Port Richey, also has arranged to allow Hacker to operate a gift shop located at the Best Western Governor's Inn. Womack, forty-nine years old, has an extensive background in the restaurant business. An acquaintance of Dickey, Womack met Hacker through Dickey. Before the deadline for entering the statutory lottery, Womack, Dickey and Hacker discussed the lottery, and Womack suggested that all three enter the lottery. The statutory lottery was held on September 12, 1984, and on September 18, 1984, Hacker was notified that she was one of the preliminary applicants selected in the drawing for an available liquor license in Pinellas County. Neither Dickey nor Womack were selected. Dickey and Womack immediately offered to assist Hacker in obtaining a quota license and setting up a business to operate the license. Womack's restaurant called Clearwater Dino's, Inc., was moving from a location in Clearwater, and Womack offered to assign his lease to the premises to Hacker. Tarpon Management, Inc., lessor to the property, was managed by Dickey. Dickey also agreed to the assignment. Hacker had an attorney incorporate Petitioner, Pinellas Lounge, Inc., (Petitioner) to be the entity to apply for licensure. Womack began to take steps to have the property properly zoned to operate Petitioner's business. Hacker has serious back problems and can travel distances and do other physical activities only with great difficulty. On October 26, 1984, Womack drove to Clearwater to open a bank account for Petitioner at the bank near the old Clearwater Dino's location, which also is near Womack's residence. When Womack arrived, the bank notified him that a minimum initial deposit of $200.00 was required. Womack drew a check on his Clearwater Dino's, Inc., account for $317, consisting of the minimum deposit plus an additional $117 which Womack knew would soon be required for a zoning application, an occupational license, and fingerprinting by the division. Womack felt entitled to reimbursement for the $317, but was not particularly concerned with when or how he would be reimbursed. Womack gave his own social security number and telephone number to the bank, which affixed them to Petitioner's account. Womack had the bank put Dickey's name on the account's signature card as manager and his own name as assistant manager. Hacher was listed first as president. Immediately after attending to the business at the bank, Womack contacted Hacker, advised her of what he had just done, and recommended that she immediately deposit in the bank account the funds she was planning to invest in the operation of the business of Petitioner. Hacker immediately contacted Dickey, and Dickey wrote a $7500 check on the Best Western Governor's Inn account for deposit into Petitioner's new bank account. The check was written on October 26, 1984. On October 26, 1984, Dickey, Womack, and Hacker also executed documents for assignment of the Clearwater Dino's, Inc., lease to Petitioner. On October 30, 1984, Womack drove Hacker to the Division's offices in Clearwater to complete and file Petitioner's application. While waiting to be received for their appointment with Division employee Zelma Cope, Hacker and Womack were approached by Division employee Robert C. Randle, who asked to assist them. Randle accepted the application from Hacker. When Randle raised questions concerning the absence of notarization of Hacker's signature and the absence of a corporate charter number, Womack responded that he did not know the charter number and did not have the information with him. Womack then offered to telephone Petitioner's attorney for the corporate charter number. Randle asked Womack what his connection was to Petitioner, and Womack responded that he was a friend of Hacker. When Randle asked if Womack was acting as Hacker's broker, Womack communicated that he supposed he was and repeated that he was Hacker's friend. Womack did not truly understand what Randle meant by broker. Womack then left the office to telephone Petitioner's attorney. While Womack was gone, Randle pursued the subject of Womack's relationship to Petitioner with Hacker, who candidly answered that Womack would be acting as manager of Petitioner's business. In fact, at some point between September 18 and October 30, Hacker had accepted Womack's offer to help Hacker get the business going by acting as a manager on a temporary basis until either Hacker was able to assume management of the business or a permanent manager was hired and trained. As of October 30, no serious discussion of compensation for Womack's services had taken place. Hacker was not certain that the extent of Womack's services would necessitate that he be compensated. Womack expected to be compensated but had not pressed the issue. It was contemplated that Womack's duties as temporary manager would involve the hiring of personnel and insuring payment of corporate debts, but there was no understanding that Womack's activities would not be subject to Hacker's final approval. When Womack returned from the telephone, Randle asked whether anyone other than Hacker would be entitled to sign checks on and withdraw money from Petitioner's bank account. Womack responded that he would be, acting as manager. Randle then inquired of a superior whether Womack also would have to complete an application form and be fingerprinted. Randle also discussed with the superior his concern about Womack's involvement in Petitioner's business. The superior advised Randle that Womack should complete an application and be fingerprinted. Randle returned and reported this, and Womack complied. In fact, from October 26 through November 26, 1984, Dickey also had signature authority on Petitioner's bank account. On the signature card, Dickey was identified as Petitioner's manager, and Womack was identified as Petitioner's Assistant Manager. Dickey's name was deleted from the signature card on November 26, 1984. Paragraph 6 of Section 1 of DBR Form 700-L of Petitioner's application required Petitioner to list the names of all those connected directly or indirectly in the business for which the license is sought. On its completed application, Petitioner answered: "Tina Z. Hacker, President, Stock 100. In response to paragraph 1 of Section 3 of DBR Form 700-L, Petitioner stated that there was no management contract or service agreement in connection with the business. In response to paragraph 7 of Section 3 of DBR Form 700-L, Petitioner stated that no persons, firms, or corporations "have or will advance any money for the operation of this business . . . or have the right or ability to receive money from the business." Dickey was not revealed by Petitioner's application in any way. On November 1, 1984, Womack used $4,724.50 of the funds in Petitioner's bank account to purchase a personal automobile at a discount price. On December 13, 1984, the day of a meeting in which the Division advised Hacker, Womack and Petitioner's attorney of the Division's concern about Womack's involvement in Petitioner's bank account, Petitioner reimbursed Womack the $317 he had advanced on October 26. Womack himself signed the check on behalf of Petitioner. In response to Question A. of DBR Form 710-L, Hacker reported that she was investing $7500 in the business for which the license was sought and that the $7500 was obtained from the sale of Spring's Business Service and a fish brokerage business in Homasassa Springs, Florida. Hacker testified that she received $8500 cash from the sale of those businesses. She also testified that she kept this cash in a locked closet in her home until October 26, 1984, at which time, she testified, she gave $7500 of the cash to Dickey in return for Dickey's $7500 check on the Best Western Governor's Inn account so that Hacker would not have to transport $7500 cash from New Port Richey to Petitioner's bank in Clearwater. James Yurian testified that he and Hacker were in business together as Springs Business Service, an accounting and bookkeeping service in Homasassa Springs. He testified that he bought her out for $7500 cash in June, 1982. However, Yurian, a certified public accountant, had no good explanation why he paid Hacker cash instead of a check for $7500. In addition, a U.S. Partnership Return Of Income IRS Form Yurian completed for the period from January 1, 1982 through December 31, 1982, does not reflect that Yurian bought Hacker out in June, 1982. As to Hacker's transaction with Dickey, Dickey's testimony corroborated Hacker 's. Dickey testified that he added the $7500 cash Hacker gave him on October 26, 1984, to the petty cash on hand at the Best Western Governor's Inn. However, Petitioner did not produce any petty cash ledger to support this testimony. A cash payment into the Best Western Governor's Inn bank account was not made until December 21, 1984, after a meeting on December 13, in which the Division advised Hacker, Womack and Petitioner's attorney of the Division's concern regarding the deposit of the $7500 check Dickey wrote on the Best Western Governor's Inn account into Petitioner's bank account. In view of the totality of the testimony and evidence, no finding of fact can be made that the $7500 invested in the operation of Petitioner's business and deposited into Petitioner's bank account in fact was $7500 cash belonging to Hacker and obtained from the sale of Springs Business Service and Hacker's Fish Brokerage business in Homasassa Springs. In response to Question 1 on DBR Form 710-L of Petitioner's application, Hacker revealed that in late 1980 she was arrested or charged with having a firearm in her home, and, on a separate occasion in late 1980, was arrested or charged with possessing amphetamine. No other charges or arrests were revealed by Hacker. Hacker satisfactorily explained at final hearing that two firearms were found in a home which she was renting between approximately March and June, 1980. Hacker located the rental through an agency. Under the rental, Hacker shared the house with two Iranians whom she did not previously know. Her bedroom was separated from theirs the three shared common areas. The weapons were found after Hacker had moved out of the house in June, 1980. As co-lessee, Hacker was arrested along with the Iranians. But her explanation was accepted by the authorities, and the charges against Hacker were dismissed on February.18, 1981. As for the amphetamine charge, an automobile in which Hacker was riding as a passenger on November 11, 1980, was stopped by a police officer. At the police officer's request, Hacker freely displayed the contents of her purse. In her purse were several loose Eskatrol Spansule pills which had been prescribed for Hacker. Hacker was arrested for illegal possession of controlled substances. It is unclear what actually happened on the possession charge, but Hacker believed that charge was disposed of at the time the weapons possession charge was disposed of. For this reason, she inaccurately reported that the amphetamine possession charge was dismissed on February 18, 1981. The case consisting of the amphetamine charge against Hacker was placed on the court's "absentee docket" in October 1981. During that time period, cases were placed on the "absentee docket" when a defendant missed a court appearance or when the State Attorney's Office made a decision not to prosecute a case but, for public relations reasons, did not take steps to have the case dismissed. In any event, Hacker's amphetamine charge remained in the Florida crime computer which also indicated that Hacker was to be held if arrested. On July 26, 1984, Hacker was stopped for a minor traffic infraction, and, as a result of the "hold" in the Florida crime computer, Hacker was re-arrested for the same amphetamine charge. Hacker immediately contacted her attorney and angrily asked how she could have been re-arrested on a charge which Hacker understood had been dismissed. Her attorney presented the evidence of Hacker's prescription for the amphetamines that had been found in her purse on November 12, 1980, and, on August 30, 1984, the amphetamine possession charge was dismissed once and for all. Hacker did not reveal the second arrest on the amphetamine possession charge because she understood that second arrest to have been a complete mistake and felt her disclosure of the original arrest on the charge to have been a complete disclosure.2 Hacker also was technically arrested for issuing a worthless $29.76 check. This technical arrest occurred on November 12, 1980, while Hacker was already under arrest for the amphetamine possession charge. For this reason, Hacker never realized she had been arrested for issuing a worthless check and did not refer to this arrest on Petitioner's application. When Hacker was released on the amphetamine possession charge, she also technically was released, unbeknownst to her, on her own recognizance, on the worthless check charge. She later made restitution on the check, and the charge was in effect dismissed by being placed on the "absentee docket" without a hold sometime in 1981.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that respondent Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order denying the application of Petitioner, Pinellas Lounge, Inc., for a quota alcoholic beverage license. RECOMMENDED this 20th day of September, 1985, in Tallahassee, Florida. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 20th day of September, 1985.
The Issue Whether Respondent's alcoholic beverage license number 60-05660, series 2COP, should be disciplined based on the alleged violations of the alcoholic beverage laws set forth in the Notice to Show Cause dated August 14, 1998.
Findings Of Fact Respondent Jimmy Karl Boyd is the holder of alcoholic beverage license number 60-05660, series 2COP, for a licensed premises known as Get A Way Bar & Lounge, located at 2517 North Military Trail, West Palm Beach, Palm Beach County, Florida. At all times pertinent to this proceeding, Ellie Reardon was the girlfriend of the Respondent and the manager of the premises. Shannon Dowding, who is Ms. Reardon's daughter, and Kathy Harris were also bartenders at the establishment. Petitioner initiated an investigation of the licensed premises based on a complaint from Jim Falsia, a deputy with the Palm Beach Sheriff's Office, that persons were dealing in stolen property and drugs on the premises.2 Kent Stanton and Jennifer DeGidio, special agents employed by Petitioner, conducted the undercover investigation of Respondent's business in cooperation with the Palm Beach County Sheriff's Office. Before they entered the subject premises for the first time, Agents Stanton and DeGidio were given certain information, including identifying information pertaining to two suspected drug dealers named William Howell and Scott Lyons. As part of their investigation, Agents Stanton and DeGidio entered the subject premises during late afternoon or early evening on the following dates: June 18, 19, 23, and 26; July 1, 15, 21, 23, 29, and 31; and August 4, 6, and 12, 1998. After each of these visits, the undercover agents returned to their office where they recorded their recollection of what had transpired. At all times, the two agents entered the premises together. One or the other agent always wore a listening device that was monitored by backup law enforcement officers. Agents Stanton and DeGidio purchased quantities of cocaine inside the subject premises on the following dates: June 19; July 1, 15, 21, 23, 29, and 31; and August 6 and 12, 1998. THE PREMISES The premises are located in a commercial area that backs up to an area of low income housing. The premises consist of a parking area and a rectangular shaped building with approximately 2,000 square feet. The building has three doors. There is no lighting other than that provided by the open doors. The evidence established that there was adequate light in the premises to observe the events pertinent to this proceeding. There is a long bar with a mirror on the wall that the patrons face. The bartender on duty is usually stationed behind the bar in the vicinity of the cash register, which is behind the bar toward the eastern end of the bar. There is a telephone at the eastern end of the bar that patrons are free to use. The door at the westerly end of the premises is off a hallway in the vicinity of the men's room. This hallway is not visible from where the bartender is usually stationed and is not otherwise monitored. There are four televisions that could be set on different stations. One or more television was usually on. There is a juke box. At the times pertinent to this proceeding, the bar was cooled by two four-foot fans and an 18-inch fan because the central air conditioning system was broken. There were coolers behind the bar. Although the premises was noisy, the evidence established that the noise did not prevent ordinary conversation. JUNE 18, 1998 The first time the undercover agents entered the subject premises was Thursday, June 18, 1998. They observed Respondent, Ellie Reardon, and two patrons drinking beer and engaging in conversation. The agents only engaged in small talk on that occasion. No drugs were purchased by the undercover agents on this date. JUNE 19, 1998 On Friday, June 19, 1998, the two undercover agents entered the premises and made contact with Respondent, Ms. Reardon, and two patrons known to the agents only as "Rick" and "Gabe." Agent DeGidio asked Rick if he knew where she could "get something to party with." Rick replied, grass (slang for marijuana) or powder (slang for cocaine). When Agent DeGidio responded powder, Rick introduced her to another patron, William Howell, and requested Howell to provide cocaine to Agent DeGidio. Howell asked Agent DeGidio what she wanted, and Agent DeGidio replied an "eight bail," which is slang for 3.5 grams of cocaine. No employee of the Respondent was in a position to hear those conversations. After Howell related the price, Agent DeGidio returned to the bar area to Agent Stanton and asked him for money. Agent Stanton openly handed Agent DeGidio approximately $160.00. Ms. Reardon was in a position to observe this transfer of money. Agent DeGidio returned to Howell and gave him $150.00. Agent DeGidio and Howell returned to the bar area and Howell picked up the phone from Ms. Reardon. Howell placed a brief telephone call, and within a short time, Ms. Reardon picked up the ringing telephone, and gave it to Howell. Howell then departed the premises and returned shortly thereafter, whereupon he handed Agent DeGidio a small plastic bag containing suspected cocaine. Howell did not attempt to conceal the nature of the transaction from Ms. Reardon, who was in position to observe the transfer. The substance purchased on this occasion was laboratory analyzed and found to contain cocaine. JUNE 23, 1998 On June 23, 1998, the undercover agents returned to the licensed premises. On this date, Agent DeGidio approached employee Ms. Reardon and openly asked her if Howell was around and whether he could "get us some stuff." Ms. Reardon began looking for Howell, but did not take any other action regarding Agent DeGidio's obvious drug request. When Howell arrived at the premises shortly thereafter, he approached Agents DeGidio and Stanton. Howell told Agent DeGidio that Ellie (Ms. Reardon) had told him that she (DeGidio) wanted some, meaning drugs. When Agent DeGidio told Howell that she was looking for a gram of cocaine, Howell said he would try, made a phone call, and thereafter departed the premises. When Howell returned, he told the agents that his cocaine supplier had not come yet. No drugs were purchased by the undercover agents on this date. JUNE 26, 1998 On June 26, 1998, the undercover agents returned to the licensed premises. On this date, Agent DeGidio made contact with Howell regarding the purchase of cocaine. Howell placed a phone call at the bar phone, and received a return call a few minutes later. Howell informed Agent DeGidio that he could sell her cocaine as soon as his supplier arrived. When Howell returned and advised that his cocaine supplier had not arrived, the agents departed. The evidence failed to establish that anyone employed by Respondent heard this conversation. No drugs were purchased by the undercover agents on this date. JULY 1, 1998 On July 1, 1998, Agents Stanton and DeGidio returned to the licensed premises. On this date, Agent DeGidio made contact with Howell regarding the purchase of cocaine. Their conversation occurred at the bar less than two feet from Shannon Dowding, who was tending the bar and in a position to hear the conversation. Ms. Dowding took no action in response to this conversation. Howell placed a call using the telephone at the bar and received a return call seconds later. Agent DeGidio approached Agent Stanton, who openly handed her $60.00. Agent DeGidio then handed the money to Howell. This exchange occurred in the middle of the bar in plain view of Ms. Dowding, but no reasonable inquiry or action was taken. Howell later approached an unidentified patron and called Agent DeGidio to where he was standing in the hallway in the vicinity of the men's room. This area was not monitored or supervised by the Respondent or his employees and was not visible from the bar counter where the Respondent's bartender was stationed. When Agent DeGidio arrived, Howell handed her a small plastic bag containing cocaine. The substance purchased on this occasion was laboratory-analyzed and found to contain cocaine. JULY 15, 1998 On July 15, 1998, Agents Stanton and DeGidio returned to the licensed premises. On this date, the agents met with Kathy Harris, who was working as the bartender at the premises. Ms. Harris answered the telephone at the bar and the caller asked for Howell, but Howell was not on the premises. Agent Stanton asked Ms. Harris if she knew whether Howell was coming to the premises that day. When Ms. Harris replied that she did not know, Agent DeGidio asked Ms. Harris if she knew someone who could get the agents "something to party with." Ms. Harris told the agents that Howell's "partner" was present. Ms. Harris then brought the partner into the premises and introduced him to the agents as "Scott," later identified as Scott Lyons. Agent DeGidio then loudly asked Lyons, in the presence of Ms. Harris, whether he could provide the agents "something to party with." Agent DeGidio and Lyons then discussed availability and price of the cocaine in the presence of Ms. Harris. When Agent Stanton expressed concern over giving Lyons money before receiving cocaine, Ms. Harris stated that Lyons could be trusted. Agent Stanton then handed Lyons $60.00 and Lyons departed the premises. Soon thereafter, Lyons returned to the premises and approached Agent Stanton, who was sitting at the bar two feet from Ms. Harris. Lyons handed Agent Stanton, at bar level, a small plastic bag with a white powdery substance. At no time during this transaction did Ms. Harris, or any other employee, take any action to stop the drug transaction or even inquire about it. The substance purchased on this occasion was laboratory-analyzed and found to contain cocaine. JULY 21, 1998 On July 21, 1998, Agents Stanton and DeGidio returned to the licensed premises. On this date, the agents sat at the bar, which was tended by Ms. Dowding. Agent DeGidio made contact with Lyons, who was standing at the bar in front of Ms. Dowding, and asked if he could "get some stuff." Lyons said that he could, made another call using the bar phone, and departed the premises. Lyons and Howell later entered the premises together. Lyons approached Agent Stanton, and they discussed a cocaine transaction. Agent Stanton openly handed Lyons $60.00. These conversations were at normal speaking volumes and could have been heard by anybody at the bar including Ms. Dowding. After departing and then returning to the premises, Lyons approached Agent Stanton, who was sitting at the bar three feet from Ms. Dowding and four feet from Ms. Reardon, who had entered the premises. Lyons handed Agent Stanton, at bar level, two small clear plastic bags containing a white powdery substance. Agent Stanton placed the small clear bags in the palm of his hand, and then placed his hand at chest level and looked at the bags of cocaine for a few seconds. Anybody at the bar was in a position to see the bags in Agent Stanton's hand including Ms. Dowding and Ms. Reardon. At no time did Ms. Dowding or Ms. Reardon take any action to stop the drug transaction or inquire about it. The substance purchased on this occasion was laboratory-analyzed and found to contain cocaine. JULY 23, 1998 On July 23, 1998, Agents Stanton and DeGidio returned to the licensed premises. Agent Stanton went to the hallway by the men's room and met with Lyons regarding the purchase of cocaine. Agent Stanton handed Lyons $60.00. Approximately five minutes later, Lyons approached Agent Stanton at the bar and handed him at bar level two small clear plastic bags containing a white powdery substance. Agent Stanton held the cocaine in his palm and looked at it before placing it into his pocket. The cocaine transfer could have been viewed by anyone sitting at the bar, including a ten-year old boy, who was sitting next to Agent Stanton, and Ms. Reardon. At no time did Ms. Reardon or any other employee take any action to stop the drug transaction or inquire about it. The substance purchased on this occasion was laboratory analyzed and found to contain cocaine. JULY 29, 1998 On July 29, 1998, Agents Stanton and DeGidio returned to the licensed premises. On this date, Agent DeGidio met with Howell regarding the purchase of cocaine and asked him, in the presence of Ms.Dowding, for a gram. Howell walked to the end of the bar where Ms. Dowding handed him the telephone. Howell placed a call. When the phone rang moments later, Ms. Dowding answered and handed the telephone to Howell. After a short conversation, Howell told Agent DeGidio that she would have to wait. Ms. Dowding was sitting right next to Howell during this exchange. Shortly thereafter Ms. Dowding departed the premises and was replaced by Ms. Reardon, who had arrived with a child approximately ten years old. Agent DeGidio looked out the back door and saw Howell and an unidentified male in an automobile engaged in what appeared to be a hand-to-hand drug transaction. Howell then reentered the bar and approached Agent DeGidio. Agent DeGidio told Agent Stanton that Howell needed the money, and Agent Stanton gave Howell $60.00 in the presence of Ms. Reardon. Howell briefly walked out the back door, reentered and handed Agent DeGidio two small clear plastic bags containing a white powdery substance. The transfer occurred at the back of the bar. At no time did Ms. Dowding or Ms. Reardon take any action to stop the drug transaction or to inquire about it. The substance purchased on this occasion was laboratory-analyzed and found to contain cocaine. JULY 31, 1998 On July 31, 1998, Agents Stanton and DeGidio returned to the licensed premises. On this date, Agent Stanton met with Lyons regarding the purchase of cocaine. Later, Lyons signaled Agent Stanton to walk to the hall by the men's room. Lyons stated that he needed the money, and Agent Stanton gave Lyons $60.00. Approximately ten minutes later, Lyons again signaled Agent Stanton to go to the back of the bar. There Lyons handed Agent Stanton two small clear plastic bags containing a white powdery substance. The evidence failed to establish that any employee of the Respondent was in a position to see these events or hear these conversations. The substance purchased on this occasion was laboratory-analyzed and found to contain cocaine. AUGUST 4, 1998 On August 4, 1998, the undercover agents returned to the premises, but they did not purchase any drugs. AUGUST 6, 1998 On August 6, 1998, Agents Stanton and DeGidio returned to the licensed premises. On this date, Agent DeGidio met with Howell regarding the purchase of cocaine. Agent DeGidio obtained $60.00 from Agent Stanton and handed it to Howell. Approximately ten minutes later, Howell signaled Agent DeGidio to go to the back of the bar in front of the men's restroom. Once there Howell handed Agent DeGidio two small clear plastic bags containing a white powdery substance. Ms. Reardon was in a position to observe Agent Stanton give Agent DeGidio the money that she subsequently gave to Howell. Ms. Reardon was not in a position to see or hear the remaining events. At no time did any employee take any action to stop the drug transaction or to inquire about it. The substance purchased on this occasion was laboratory-analyzed and found to be cocaine. AUGUST 12, 1998 On August 12, 1998, Agents Stanton and Agent DeGidio returned to the licensed premises. On this date, Agent DeGidio again met with Howell regarding the purchase of cocaine. Howell was standing in the back of the bar with employee Ms. Reardon, Respondent, and an unknown patron. In the presence of these people, Agent DeGidio asked Howell if he could "hook her up." This question should have been construed by all who heard it as an inquiry pertaining to drugs. Howell replied that he would attempt to locate some cocaine for Agent DeGidio. Shortly thereafter, Howell met with Agent DeGidio and told Agent DeGidio that his usual source wasn't home, but he would see if he could get it from someone else. After discussing price with Howell, Agent DeGidio approached Agent Stanton and obtained $60.00 from him. Agent Stanton counted out the money in front of Ms. Reardon and Ms. Dowding and handed the money to Agent DeGidio. Agent DeGidio then gave the $60.00 to Howell. Shortly thereafter, Howell motioned for Agent DeGidio to come to the area of the men's room, where he handed Agent DeGidio $10.003 and two paper packets containing a white powdery substance. At no time did any of the employees attempt to stop the transaction or to inquire about it. The substance purchased on this occasion was laboratory-analyzed and found to be cocaine. Although the consummation of the foregoing transactions was frequently in the area of the men's room, any reasonable employee knew or should have known that the undercover agents were purchasing drugs from Howell and Lyons. With the exception of the transaction on July 31, 1998, at least a part of each transaction was conducted in an open manner near the bar, where the transaction could easily be viewed by the bartender on duty. Ellie Reardon, Shannon Dowding, and Kathy Harris were aware of, or should have been aware of, the drug activity. Respondent's employees openly condoned it, to the point of actually directing the agents to the sellers and vouching for the reliability of Lyons. The testimony of the Respondent and his employees that they had no idea drugs were being bought and sold in the establishment is rejected because that testimony is contrary to the clear and convincing evidence of the two special agents and to the multiple bags of cocaine that were produced as evidence. NO RESPONSIBLE VENDOR TRAINING Respondent took no action to prevent drug activity on the premises. Respondent provided no Responsible Vendor Training pursuant to Section 561.701, Florida Statutes.4 The Respondent never informed his employees that drug use and sales were not to be tolerated on the licensed premises, nor did he instruct them what they should do if they observed drugs being trafficked on the premises. Ms. Reardon, Ms. Dowding, and Ms. Harris testified that they had been given appropriate vendor training by the Respondent. This testimony is rejected as being contrary to the Respondent's testimony.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that Respondent's alcoholic beverage license number 60-05660, series 2COP, be revoked. DONE AND ENTERED this 24th day of September, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1998.
The Issue Whether the Respondents, ORLANDO MULKEY and LORETTA MULKEY, d/b/a SONNY'S SERVICE CENTER, should have their alcoholic beverage license suspended or revoked.
Findings Of Fact The Respondents ORLANDO MULKEY and LORETTA MULKEY hold Beverage License No. 36-00019, Series No. 2-APS for the premises known as SONNY'S SERVICE CENTER located at 635 and 637 Alabama Avenue, Clewiston, Florida. On July 14, 1987, the Respondent ORLANDO MULKEY was adjudicated guilty of the offense "Sale of a Controlled Substance, Cocaine" in Circuit Court Case No. 87-59 in Hendry County, Florida. Although the specific statute number was not set forth in the judgment and sentence as suggested in the uniform judgment and sentence found in Rule 3.986, Rules of Criminal Procedure, it appears that ORLANDO MULKEY was found guilty of a felony under Section 893.13(1)(a) and Section 893.03(2)(a)4, Florida Statutes. This finding is based upon the length of the probation term (5 years) and the written description of the offense in the judgment. The judgment and sentence were a result of a criminal offense which took place on November 13, 1986. During the hearing, after receiving instruction from the Hearing Officer concerning his Constitutional right against self-incrimination, which he appeared to understand, ORLANDO MULKEY admitted to possessing crack cocaine on the premises of SONNY'S SERVICE CENTER on November 13, 1986, during his management shift. ORLANDO MULKEY and LORETTA MULKEY conducted business in SONNY'S SERVICE CENTER on different shifts. LORETTA MULKEY was not aware that ORLANDO MULKEY, her co-licensee, was using crack cocaine. She was not aware that he had crack cocaine in his possession on the licensed premises during his shift. As the managerial and supervisory responsibilities were divided between the co- licensees on the basis of their respective shifts, LORETTA MULKEY, had no connection with any drug related activities. On June 18, 1987, ORLANDO MULKEY quitclaimed his interest in the real property where SONNY'S SERVICE CENTER is located to LORETTA MULKEY. Although ORLANDO MULKEY and LORETTA MULKEY are co- licensees, there is no evidence in the record to establish that a legal entity relationship exists between the MULKEYS in the conduct of business as SONNY'S SERVICE CENTER.
Findings Of Fact During the month of September 1988, petitioner, David J. Caplan, agreed with, unbeknownst to him, a special agent with the Drug Enforcement Administration to secure and deliver to the agent 12 kilograms of cocaine for $16,500 per kilogram (kilo). On September 27, 1988, petitioner picked up one kilo of cocaine from his supplier and transported it in his vehicle to his residence. Within his residence, petitioner met with the agent and a confidential informant (CI), and delivered the one kilo of cocaine to the agent in exchange for $16,500. On September 28, 1988, following negotiations regarding the purchase of the balance of the cocaine, petitioner picked up two kilos of cocaine from his supplier, transported it by truck to his residence, and hid it in a garbage can adjacent to his garage. Upon the arrival of the agent and CI, petitioner removed the cocaine from the garbage can, and displayed it to the agent inside his residence. After examining the cocaine, the agent and CI left the residence under the announced intention of going to get the money for the purchase of the two kilos, and once away from the residence the agent gave the signal to other agents for petitioner's arrest. Upon arrest, petitioner cooperated with the agents, and directed them to the two kilos of cocaine, which he had hidden in the rafters of his garage. 1/ Subsequently, petitioner was charged and pled guilty to trafficking in cocaine. On February 21, 1990, respondent, Department of Revenue (Department), issued a Notice of Assessment and Jeopardy Findings which assessed a tax of $9,900, a penalty of $2,475, an additional penalty of $4,950, and interest of $1,589.25, together with interest thereon at the rate of $3.25 per day after February 21, 1990, against petitioner, pursuant to Section 212.0505, Florida Statutes. At petitioner's request, the Department reconsidered such assessment, and on May 7, 1991, issued a revised assessment against petitioner, assessing a tax of $9,900, a penalty of $2,475, and interest of $1,589.25, together with interest at the rate of $3.25 per day after February 21, 1990. The factual basis for the assessment was the petitioner's involvement in the cocaine transactions described in the foregoing findings of fact. Petitioner filed a timely petition seeking a formal hearing to contest the Department's assessment. At hearing, petitioner contended that the cocaine in question was not his, that he merely acted as a go-between for the agent and his supplier, and that he was therefore not involved in any sale, use or distribution of the subject cocaine. Moreover, with regard to the second transaction, which involved the two kilos of cocaine, petitioner contended that no liability for any tax could attach because the sale was not consummated, i.e.: petitioner had not yet actually exchanged the cocaine with the agent for the agreed purchase price. Petitioner's contentions regarding the limited nature of his involvement is contrary to the credible proof, and petitioner's contentions regarding the implications of that participation are contrary to the law, discussed infra. Succinctly, petitioner actively participated in the transportation, storage, distribution and sale of the cocaine, and he is subject to the implications of such activity under the provisions of Section 212.0505, Florida Statutes. Notwithstanding his active participation in the sale of the cocaine, petitioner averred at hearing that such participation was not voluntary. Rather, petitioner contended that his participation resulted from pressure asserted by a friend of long standing (Lupo) who, unbeknown to him, had become a confidential informant. 2/ According to petitioner, Lupo pressured him into locating a supplier of cocaine for the agent and CI involved in the subject transactions, as a consequence of hounding him for an old $1,600 debt petitioner had incurred for purchasing cocaine at a time he was addicted to the drug, and by an oblique remark the confidential informant made that "he knew my kid played outside," which petitioner averred he interpreted to be a threat to do something to his son. Petitioner's contention that his participation in the subject transactions was not voluntary or, stated differently, that he was entrapped, is rejected as contrary to the more credible proof. Here, the proof demonstrates that petitioner's motivation was financial and that he had a familiar relationship of long standing with Lupo and his ultimate supplier (Greenburg) which, coupled with the lack of sincerity and precision to his testimony, make his protestations of duress ring hollow. Regarding his financial motivation, the proof demonstrates that when approached by Lupo, petitioner was financially strapped, and stood to make $500 for each kilo he could deliver. Had the entire transaction been consummated for the agreed 12 kilos, petitioner stood to make a quick $6,000. Regarding the relationships that existed, the proof demonstrates that petitioner had been friends with Lupo and Greenberg for over twenty years, had actually lived with Greenberg for ten years, and that there was no apparent change in that relationship when he was approached by Lupo and introduced to the agent in this case. Considering the length of their relationship, and the lack of conviction in petitioner's testimony, it is concluded that petitioner's participation in this transaction was not compelled by any threat from Lupo, but by his own financial needs. In sum, the proof supports the conclusion that petitioner did engage in the unlawful sale, use, distribution, transportation or storage of cocaine as set forth in the Notice of Assessment and Jeopardy Findings, and that the Department's assessment of tax, penalty and interest set forth in its revised assessment was reasonable and appropriate.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order concluding that petitioner, David J. Caplan, is liable for taxes, penalties and interest pursuant to Section 212.0505, Florida Statutes, and assessing the amount of such liability at $13,964.25, plus interest at the rate of $3.25 per day from February 22, 1990. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of March 1992. 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 30th day of March 1992.
The Issue This is a license discipline case in which the Division of Alcoholic Beverages and Tobacco seeks to suspend, revoke, and otherwise take disciplinary action against the Respondent and its license on the basis of allegations that the Respondent has violated Section 561.29(1)(a), Florida Statutes, by permitting patrons to engage in illegal activities on the licensed premises and by allowing the licensed premises to be used for the illegal keeping, selling, or delivery of controlled substances. The Respondent contends that no disciplinary action should be taken because the Respondent has qualified as a "responsible vendor," and has taken reasonable steps to attempt to prevent the conduct complained of in the Notice To Show Cause.
Findings Of Fact At all times relevant and material to this proceeding, a corporation named 3673 Bird, Inc. (hereinafter referred to as "the Respondent corporation"), has been the holder of alcoholic beverage license number 23-01224, series 4-COP, for licensed premises knows as Uncle Charlie's, which premises are located at 3673 Bird Road, Miami, Dade County, Florida. The Respondent is owned by Robert Sloate, who is also the sole officer of the Respondent corporation. Mr. Sloate does not take an active part in the day-to-day management of the licensed premises. Mr. Sloate makes only rare or occasional visits to the licensed premises. During November of 1991 and during the first few days of December of 1991, Mr. Sloate was hardly ever on the licensed premises. Mr. Sloate did not have personal knowledge of the events described in Paragraphs 5, 6, and 7 of these Findings of Fact. The business of the licensed premises is managed by a group of four managers. The Respondent corporation has a total of twenty-six employees, including the four managers. The Respondent corporation has performed the actions necessary to qualify as a "responsible vendor" within the meaning of Section 561.705, Florida Statutes, as amended by Chapter 91-60, Laws of Florida. 1/ Those actions include training and instruction sessions for managers and employees, meetings of employees, and the posting of signs to discourage underage sales and illegal activity involving controlled substances. The licensed premises were also equipped with TV cameras that cover both doors, the front bar, and the back bar. However, the TV cameras do not make a tape recording of what they cover, and there is no evidence that the TV monitors are watched by employees of the Respondent corporation on any regular basis. During the course of an undercover investigation that began on or about November 13, 1991, and continued until the licensed premises were raided on December 6, 1991, the following transactions involving controlled substances took place within the licensed premises: On or about November 14, 1991, a patron known as Mark sold two baggies, each containing approximately one-half gram of cocaine, to a confidential informant who was cooperating with the undercover investigation. 2/ On or about November 14, 1991, a patron known as Gus sold cocaine to a confidential informant who was cooperating with the undercover investigation. On or about November 14, 1991, a patron known as Mark sold cocaine to Detective Bales. (d) On or about to Detective Rivera. November 15, 1991, a patron known as Sergio sold cocaine (e) On or about Agent Lopez. November 15, 1991, a patron known as Clint sold cocaine to (f) On or about to Detective Bales. November 15, 1991, a patron known as Sergio sold cocaine (g) On or about Detective Bales. November 15, 1991, a patron known as Mark sold cocaine to (h) On or about Detective Rivera. November 15, 1991, a patron known as Mike sold cocaine to (i) On or about to Agent Lopez. November 15, 1991, a patron known as Sergio sold cocaine (j) On or about November 15, 1991, a patron known as Mike sold cocaine to Detective Fernandez. On or about November 21, 1991, a patron known as Sergio sold cocaine to Detective Bales. On or about November 21, 1991, a patron known as Sergio sold cocaine to a confidential informant who was cooperating with the undercover investigation. On or about November 22, 1991, a patron known as Sergio sold cocaine to Agent Lopez. Or or about November 22, 1991, a patron known as Wesley sold cocaine to Detective Bales. On or about November 22, 1991, a patron known as David sold cocaine to a confidential informant who was cooperating with the undercover investigation. On or about November 22, 1991, a patron known as Clint sold cocaine to Agent Lopez. On or about December 4, 1991, a patron known as Clint sold cocaine to Agent Lopez. On or about December 4, 1991, a patron known as Charles Garcia sold cocaine to Detectives Villanueva and Feria. The vast majority of the drug transactions described in the preceding paragraph were conducted in an open and casual manner, with no effort by either party to conceal the transaction. Most of the drug transactions described above took place when the licensed premises were quite crowded and noisy, which would have made it difficult for some of the transactions to be noticed by employees of the Respondent corporation. However, many of the transactions took place near employees of the Respondent corporation, and from the open nature of the transactions, it should have been obvious to the employees of the Respondent corporation what was going on. The flagrant nature of the illegal drug transactions taking place in the licensed premises during the period of the undercover investigation is illustrated by the following: The patron Sergio, who made several sales of cocaine to the undercover police officers and to the confidential informant, was so flagrant about his illegal activities that he carried a tambourine with him and would shake the tambourine to advise all who were interested that he had cocaine available for sale. At least one of the managers was aware of Sergio's tambourine shaking, because he testified that it annoyed him. It was obvious to anyone who troubled to look that Sergio was dealing in something, because after he shook his tambourine there would be several people who would approach him, hand him money, and receive from him small plastic baggies containing white powder. Sergio's cocaine sale activity was so casual that on at least one occasion he took a twenty dollar bill and delivered a baggie containing cocaine without even being specifically asked for cocaine. The casual nature of Sergio's activity is also indicated by the fact that he was not concerned about being asked for cocaine in the presence of two other people, and he carried numerous baggies of cocaine in his pockets. The patron Charles Garcia attempted to promote the ingestion of cocaine inside the licensed premises after he delivered cocaine to Detectives Villanueve and Feria. The undercover police officers observed numerous transactions during which a patron would approach another patron, deliver money to the other patron, and then receive a small plastic baggie from the person who took the money. These observations included the observation of numerous such transactions involving Sergio (the tambourine man) and several involving the patron known as Mike. On one occasion during the investigation, Detective Rivera observed a patron exiting the restroom with white powder beneath his nose. When Detectives Villanueva and Fiera were purchasing cocaine from Charles Garcia on December 4, 1991, a patron named Ray asked Detective Fiera to join him in the restroom. In the restroom, Ray ingested a white powder that appeared to be cocaine in front of both Detective Fiera and the restroom attendant. All of the drug transactions described in Paragraphs 5, 6, and 7 of these Findings of Fact took place within the licensed premises during business hours, when employees and patrons were present on the licensed premises. None of the employees ever called the police or asked any of the parties to the drug transactions to leave the licensed premises. The Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, and the Metro-Dade Police Department executed a raid on December 6, 1991, at the licensed premises. After the raid was completed, thirty-four packets of unclaimed cocaine were found on the floor, as were several pills and several packets of marijuana. An unclaimed pen knife with cocaine on the tip was also found. On the night of the raid, one of the bartenders tossed a baggie of cocaine over the bar. That bartender was arrested for possession of cocaine. On the night of the raid, Sergio was found to be in possession of three baggies of cocaine, as well as other controlled substances. The investigative expenses incurred in the course of the undercover investigation of the Respondent corporation's premises totaled one thousand one hundred forty-eight dollars ($1,148.00). In brief summary, the vast majority of the drug transactions described in Paragraphs 5, 6, and 7 of these Findings of Fact, took place in plain view. The open exchanges of drugs and money, the casualness with which those selling drugs on the licensed premises went about their business, and the frequency of the drug transactions, all demonstrate a pattern of flagrant, persistent, repeated, and recurring violations. The nature and frequency of the subject drug transactions were such that they would have been noticed by a reasonably diligent licensee.
Recommendation On the basis of all of the foregoing, it is recommended that the Division of Alcoholic Beverages issue a final order in this case revoking the Respondent corporation's alcoholic beverage license number 23-01224, series 4-COP, for the premises located at 3763 Bird Road, Miami, Dade County, Florida, and imposing an administrative fine in the total amount of $18,000.00. RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of December 1991. MICHAEL M. PARRISH 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 24th day of December 1991.
