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.
Findings Of Fact Respondent is a Florida corporation. Gary Popkin is its sole corporate officer and stockholder. He holds the positions of President, Vice-President, Secretary and Treasurer. Respondent is now, and has been at all times material hereto, the holder of alcoholic beverage license #16- 03 032 2-COP issued by Petitioner. The licensed business is a bar that operates under the name of Lynda's Lounge. It is located at 8007-8009 Kimberly Boulevard in North Lauderdale, Florida. C.G. is a paid confidential informant. The North Lauderdale Police Department is among the law enforcement agencies for whom he works. On the afternoon of July 19, 1989, C.G. entered Lynda's Lounge, sat down and ordered a drink. While in the bar, C.G. was approached by Vinnie Lavarello, another of the bar's patrons. They were joined by Popkin. A conversation ensued. Popkin advised C.G. that he had some "good pot" and asked him if he wanted to buy some. He suggested that C.G. act quickly because he only had a little left. Both Popkin and Lavarello told C.G. that there was no need to worry because everyone in the bar "smoked pot" and was "cool." C.G. informed Popkin that he would "let him know." He thereupon left the bar and paged Detective Gary Harris of the North Lauderdale Police Department. Harris instructed C.G. to meet him at the North Lauderdale police station, which is a short distance from the bar. In accordance with Harris' instructions, C.G. went to the police station. He provided Harris with a description of Lavarello and Popkin, as well as their names. Harris searched C.G. and C.G.'s car for drugs and found none. He then gave C.G. $20.00 with which to purchase marijuana from Popkin. C.G. drove back to the bar. He was followed by Harris in another vehicle. They arrived at the bar at approximately 5:55 p.m.. C.G. entered the bar, while Harris waited outside. Once in the bar, C.G. walked up to Lavarello and indicated that he was interested in consummating the deal they had discussed earlier that day. Popkin apparently overheard C.G. He gave C.G. a package containing marijuana (cannabis). In return, C.G. gave Popkin the $20.00 he had been given by Harris. Following this transaction, there was a discussion concerning the possibility of C.G. purchasing additional drugs, including cocaine, from Popkin. Popkin quoted C.G. prices for various quantities of the drug and encouraged C.G. to come back and do business with him. At approximately 6:10 p.m., fifteen minutes after he entered the bar, C.G. left and drove in his vehicle to a prearranged location to meet Harris. Harris observed C.G. leave the bar and followed C.G. in his vehicle to their predetermined meeting place. After they both exited their vehicles, C.G. handed Harris the marijuana he had purchased from Popkin and told Harris what had happened in the bar. Harris field tested the marijuana. It tested positive. Harris placed the marijuana in a sealed bag and forwarded it to the crime laboratory of the Broward Sheriff's Office. Tests performed at the crime laboratory reflected that the substance that Popkin had sold C.G. was indeed marijuana. After consulting with Harris regarding the matter, C.G. returned to Lynda's Lounge on July 21, 1989, to make arrangements to purchase an ounce of cocaine. As he had been told to do by Popkin, C.G. discussed the matter with Lavarello. C.G. and Lavarello agreed on a purchase price. C.G. then left the bar to get money to make the purchase. After leaving the bar, C.G. went to the North Lauderdale police station and met with Harris. Harris searched C.G. and C.G.'s vehicle for drugs and found none. He then gave C.G. money with which to purchase an ounce of cocaine from Lavarello. Although C.G. and Lavarello had agreed upon a purchase price of $700.00, because it is a common practice of drug dealers to raise their prices immediately before the transaction is to take place, Harris gave C.G. $800.00 in the event Lavarello raised his price. C.G. then drove back to the bar, followed by Harris in another vehicle. After parking, C.G. exited his vehicle and entered the bar. Harris remained outside, across the street from the bar. C.G. approached Lavarello. It was too noisy inside the bar to talk so C.G. and Lavarello left and continued their conversation in C.G.'s vehicle, which was parked in the lot in front of the bar. Lavarello indicated to C.G. that he did not have the cocaine with him and needed to pick it up, but that C.G. would have to give him the entire purchase price before he did so. C.G. then excused himself. He thereupon contacted Harris and they both returned to the North Lauderdale police station. Harris did not want C.G. to give Lavarello that much money and have to wait for the cocaine to be delivered. He therefore decided to have C.G. purchase an eighth of an ounce, instead of an ounce, of cocaine from Lavarello, the purchase price of which, C.G. had been told, was $150.00. Accordingly, Harris took back $600.00 of the $800.00 he had given C.G. earlier that day. Harris then again searched C.G. for drugs and found none. C.G. thereupon headed directly back to the bar, with Harris following behind him in another vehicle. C.G. met with Lavarello at the bar. He told Lavarello that he wanted to purchase a eighth of an ounce, rather than an ounce, of cocaine. He gave Lavarello $200.00 and made arrangements to meet Lavarello later that day at the bar to receive delivery of the cocaine he had purchased. At Lavarello's request, C.G. drove Lavarello to Lavarello's girlfriend's house. C.G. then returned to the North Lauderdale police station. At all times during this journey, C.G. and his vehicle were under Harris' observation. At the police station, Harris again searched C.G. for contraband and found none. Later that day, C.G. and Harris went back to Lynda's Lounge in separate vehicles. Harris remained outside, as C.G. exited his vehicle and headed towards the front door of the bar, where he encountered Lavarello. C.G. and Lavarello then proceeded to C.G.'s vehicle, where Lavarello handed C.G. a package containing cocaine. Upon receiving the package, C.G. complained that it appeared that he had received less cocaine than he had been promised. Lavarello admitted that he had given his girlfriend some of the cocaine that originally had been intended for C.G. To compensate for the missing cocaine, Lavarello gave C.G. a package containing marijuana. In addition to the cocaine and marijuana, Lavarello also gave C.G. a $20.00 bill and a gas receipt reflecting the amount of money he had paid for gasoline during his trip to pick up the cocaine. Following this transaction, C.G. and Lavarello went their separate ways. As he had done after the buy he had made on July 19, 1989, C.G. met Harris at a prearranged location. He handed Harris everything that Lavarello had given him. Harris searched C.G. and found no additional contraband. Harris then field tested both the cocaine and the marijuana. The test results were positive. After conducting these field tests, Harris placed the cocaine and marijuana in a sealed bag and forwarded the bag to the crime laboratory of the Broward Sheriff's Office. Tests performed at the crime laboratory reflected that the substances in question were indeed cocaine and marijuana. Popkin and Lavarello were subsequently arrested by Harris. 1/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order finding Respondent guilty of the violations of Section 561.29(1), Florida Statutes, charged in the January 9, 1990, Notice to Show Cause and revoking alcoholic beverage license #16-03032 2- COP held by Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this & day of October, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675
The Issue The issue for consideration is whether Respondent's alcoholic beverage license should be disciplined because of the alleged misconduct outlined in the Notice to Show Cause filed by Petitioner.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent, Jose Manuel Acosta, was doing business at 425 Northwest 12th Avenue, Miami, Dade County, Florida, as La Romanita Cafeteria under a series 2-COP alcoholic beverage license number 23-03308. Orlando Huguet is an investigator with the Petitioner, DABT, and has had prior experience with the Coral Gables Police Department and as an investigator with the United States Air Force. During the course of his employment with the DABT, he has been involved in several undercover operations and is fully familiar with the appearance and properties of crack (rock) cocaine. He is also aware that it is a very addictive drug and that it is usually packaged in small cellophane bags but may come in other containers or not be packaged at all. During the period of mid-August to mid-October, 1987, Mr. Huguet, along with other law enforcement investigators (LEI) of DABT and agents with the Metropolitan Dade County Sheriff's Department and the Miami Police Department were involved in an undercover investigation of Respondent's place of business as part of an investigation of drugs in bars in Dade County. During the investigation, they would enter the premises in the afternoon or evening and attempt to purchase crack cocaine from the licensee, employees or patrons of the establishment. La Romanita's is primarily frequented by Spanish speaking customers. On August 28, 1987, Huguet entered La Romanita in an undercover capacity in the evening along with a confidential informant (CI). This confidential informant was utilized by Huguet in several undercover investigations. Huguet and the CI took seats at the bar counter and ordered drinks. Huguet observed the licensee, Jose Manuel Acosta, standing in front of him, behind the counter. Huguet overheard the CI ask Acosta if he (Acosta) had any drugs for sale today. Acosta commented that he had run out of drugs, but to try him tomorrow. Acosta continued to discuss drugs with Huguet, the CI, and other patrons. Subsequently, a black Latin male named Miguel approached Huguet and the CI and inquired if they were looking for drugs. Later on Huguet purchased cocaine ("perico" in Spanish) from Miguel outside the licensed premises. On August 29, 1987, at approximately 11:30 p.m., Huguet and the CI entered the licensed premises and observed the owner, Jose Manuel Acosta, sitting drown at a table with another man identified as Flaco. Huguet and the CI engaged Acosta in conversation which revealed that Acosta would provide one- half ounce of cocaine to the CI and Huguet at a future date. Subsequently, Huguet and the CI left the premises. On September 3, 1987, Huguet and the CI entered the establishment in the evening and approached the bar counter area and engaged in general conversation with a barmaid. Huguet observed a white Latin male, Tobacito, walk to the end of the bar counter, open a brown paper bag, and retrieve two pieces of suspected crack cocaine. Tobacito gave the suspected cocaine to a white Latin male in an open manner and the white Latin male gave Tobacito $20.00. Subsequently, Huguet instructed the CI to try to make a drug purchase from Tobacito. The CI approached Tobacito who reached into the same brown paper bag and took two pieces of rock ("piedra" in Spanish) cocaine and gave them to the CI in exchange for $20.00. Huguet witnessed this entire transaction and took the cocaine from the CI immediately after the drug transaction. Tobacito approached the table where Huguet and the CI were sitting, which is located on the east side of the premises. Tobacito negotiated a drug transaction with Huguet for $10.00 and then left the licensed premises, returning shortly thereafter with the cocaine. When Huguet received the piece of crack cocaine from Tobacito, he held it up to eye level, examined it, and then placed it in his front pocket. A short time later Huguet walked over to the bar counter, took a seat next to a patron named Warapito, and engaged in a general conversation about drugs. Warapito bragged that he sold the best rocks in town and stated they would enhance Huguet's sexual performance. During this conversation, Huguet retrieved the rock cocaine he had previously purchased and dropped it on the floor in front of several patrons. Warapito and another patron retrieved the cocaine and returned it to Huguet. This incident was observed by an employee, Papo, who is the son of the licensee, Jose Manuel Acosta. Thereafter, Tobacito came over to Huguet and Warapito and began to argue with Warapito over who sold the best rock cocaine. This conversation took place in front of several patrons and Papo. On September 4, 1987, Huguet entered La Romanita in the early afternoon and took a seat at one of the tables on the east side of the premises. Huguet engaged in conversation with an employee, Pepito, relative to cocaine. Pepito stated that he could get one-half ounce, but that he would have to make a phone call first since it was not on the premises. During this time, Huguet noted that Pepito did the duties and functions of an employee (serving patrons, working behind the counter, using the cash register and taking orders). Pepito proceeded to make the phone call and a short time later the licensee, Jose Manuel Acosta, entered the licensed premises carrying a large box which he gave to Pepito who took the box to the storage room. Within seconds Pepito exited the storage room, came to Huguet's table and handed him a baggie of cocaine wrapped in toilet paper. Huguet put the baggie on the table and unwrapped it to conf irm that it was cocaine. Huguet rewrapped the baggie, placed it in his right front pocket and handed Pepito $320.00. During this entire transaction, Huguet observed the licensee go by his table several times. On September 16, 1987, Huguet entered La Romanita at approximately 9:20 p.m. and observed that there were several patrons and two Latin female employees on duty. Huguet took a seat at a table located in the southeast area of the licensed premises and engaged in conversation with patron Tobacito. Huguet and Tobacito negotiated a cocaine transaction and Huguet gave $20.00 to Tobacito who exited the licensed premises, returning a short time later. Tobacito gave the crack cocaine to Huguet who held it up to eye level to examine. At this point, a patron, Jacquin, who was sitting at an adjacent table, offered Huguet a piece of aluminum foil in which to wrap the crack cocaine. Huguet took the foil from Jacquin and wrapped it around the cocaine. This transaction was observed by several patrons, as well as the two female employees. On September 18, 1987, Huguet entered the licensed premises and took a seat at the bar counter where he struck up a conversation with patron Tobacito. Tobacito asked Huguet if he wanted anything and Huguet responded that he was willing to purchase some cocaine. Tobacito stated that he had only one piece of crack cocaine left, but was willing to sell it for $20.00. Huguet agreed and Tobacito then left the licensed premises. Huguet approached Warapito and engaged in general conversation about cocaine. Warapito took a small piece of rock cocaine from his pocket and offered it to Huguet for $22.00. Huguet gave Warapito the $22.00 and in return received the rock cocaine. This transaction was observed by employee, Isabel, who had been waiting on the two patrons. Huguet noted that Isabel performed the functions and duties of an employee (waiting on customers, working behind the counter and using the cash register). A short time later Tobacito entered the licensed premises and handed Huguet a piece of rock cocaine. Huguet placed the cocaine on top of the bar counter and proceeded to examine it in plain view of employee Isabel. Huguet then placed the cocaine in a napkin, put it in his right front pocket, and paid Tobacito $20.00. On September 24, 1987, Huguet entered La Romanita and took a seat at the bar counter. Warapito approached Huguet and asked if he needed any rocks (cocaine). Huguet stated that he did and gave Warapito $20.00. This conversation took place in front of employee, Papo. Papo proceeded to leave the bar counter area, enter the women's restroom and lock the door. Another employee, identified as Chino, noted Papo's actions and advised Huguet that if Huguet ever wanted to "shoot up, snort up, or smoke up," that Chino would let him have the key to the women's bathroom. Huguet noted that Chino performed the duties and responsibilities of an employee (serving customers, working behind the counter and using the cash register). A short time later, Warapito reentered La Romanita and gave Huguet a large piece of rock cocaine. Huguet placed the cocaine on top of the bar counter, examined it, and proceeded to wrap it in a napkin in front of employees Chino and Alisa. Huguet stated that Alisa also performed the duties of an employee (waiting on customers, working behind the counter and using the cash register). Tobacito subsequently approached Huguet and handed him two pieces of rock cocaine which Huguet placed on top the bar counter and examined. He then wrapped the cocaine in a napkin. Alisa and Chino were in a position to observe this transaction as well. A short time later, Warapito and Tobacito began to argue over who sold the better rock cocaine. A few minutes later Huguet paid Tobacito $20.00 for the cocaine he had received and exited the licensed premises. On September 29, 1987, Huguet entered La Romanita and approached Tobacito who was sitting on a bar stool next to the counter. Tobacito told Huguet that he was sorry but that he had run out of rocks (cocaine). Huguet then called Warapito over to where he was sitting and asked him if he had any drugs. Warapito replied that he could get Huguet cocaine but would need $30.00 up front. Thereupon, Huguet handed him the money and Warapito exited the premises. This conversation took place in front of several patrons and an employee, Papo, who was standing behind the counter making change from the cash register. A short time later, Warapito entered La Romanita and handed Huguet two pieces of rock cocaine. Huguet took the cocaine, held it up to eye level to examine in front of several patrons and an employee, Chino, and then placed the cocaine in a napkin he had retrieved from the counter. On September 30, 1987, Huguet entered the premises and met with Warapito. Warapito offered to sell Huguet one gram of cocaine for $50.00 but stated that he would need the money up front. Huguet gave Warapito the money whereupon Warapito exited the premises. A short time later Huguet approached the bar counter and took a seat next to Tobacito. Tobacito advised Huguet that if he (Huguet) wanted any drugs that he (Tobacito) had two pieces of rock cocaine left and would sell them for $20.00. Huguet agreed to buy the cocaine whereupon Tobacito exited the premises. A short time later, Tobacito returned and presented the cocaine to Huguet in front of employees Alisa and Chino. Huguet took the two pieces of rock cocaine, examined them and made the comment that they were very dirty. Tobacito exclaimed that he had dropped the cocaine on the way back to La Romanita because he had been frightened when he had observed police officers nearby. Huguet then paid Tobacito the $20.00. A short time later, Warapito returned to the premises and stated that he had been unable to find any cocaine and returned the $50.00 to Huguet. On October 1, 1987, Huguet entered La Romanita and proceeded to the juke box area of the premises to have a conversation with Warapito. Warapito advised Huguet that he would try to obtain one gram of cocaine for him for $50.00. Huguet and Warapito discussed the drug purchase in further detail. Standing next to Huguet and Warapito was Jose Manuel Acosta, the licensee, who was in a position to hear the conversation. Subsequently, Warapito told Huguet that he thought he was a police officer. Huguet denied this allegation and then departed the licensed premises. On October 6, 1987, at approximately 12:15 p.m., Huguet entered La Romanita and approached Tobacito and Warapito at the bar where they were talking to employee Papo. Tobacito asked what Huguet wanted and Huguet responded that "twenty" would do. Huguet gave Tobacito the money and Tobacito exited the premises. Warapito subsequently told Huguet that he (Warapito) was going to secure a half gram for a friend of his and asked if Huguet wanted any cocaine as well. Huguet replied that he would like one gram and gave Warapito $50.00. A short time later, Tobacito reentered La Romanita and handed Huguet two rocks of cocaine in front of Papo. Huguet examined the cocaine at eye level, took a napkin from the bar counter and wrapped up the cocaine. A few minutes later, Warapito reentered La Romanita and gave Huguet back his money stating that he had been unable to locate any cocaine. All of the events referred to herein, with the exception of the drug purchase on August 28, 1987, took place on the licensed premises during business hours when other employees and patrons were present on the licensed premises. None of the employees or patrons who sold or delivered cocaine to Officer Huguet, or allowed others to do so, ever expressed any concern about any of the drug transactions and took no action to prevent or discourage drug transactions. The licensee, Jose Manuel Acosta, stated that he was neither present during most of the dates set out in the Notice to Show Cause nor did he hear or observe any drug transaction. He denied ever meeting or speaking with Officer Orlando Huguet about any cocaine transactions. He knew that drugs were easily obtainable in the area of town in which La Romanita was located, but did not believe that he had any drug problems on his premises. In light of the detailed testimony of Officer Huguet, which was recorded in his report, stating he and the CI spoke with Mr. Acosta on two occasions about purchasing cocaine and that on one other occasion Mr. Acosta was in a position to observe a cocaine transaction, Mr. Acosta's statements are not credible. Mr. Acosta did not perform polygraph examinations or background checks on his employees and did not use a security guard on the licensed premises. The premises contained no signs or other form of documentation revealing to patrons the policy of the management relative to drug possession, sale or usage. Instead, the only sign on the licensed premises stated that customers should not detain themselves if they were not going to consume. Mr. Acosta denied that Pepito, Isabel or Chino were his employees. Instead, he stated that he employed his wife, his son Papo, other relatives and occasionally people to help him lift things on his licensed premises. He did admit that Alisa was his employee for several weeks. His only policy concerning drugs was to tell his employees that it was illegal and to call "911" if there was a problem. He noted that he had received letters from the Division of Alcoholic Beverages and Tobacco but did not read them because he did not know English. At all times material to this case, Papo, Pepito, Isabel, Chino and Alisa were employees on the licensed premises of La Romanita. They performed the functions and duties of employees in that they served customers, worked behind the counter, waited on tables and used the cash register. The great majority of drug transactions related herein took place in plain view on the licensed premises of La Romanita. The exchanges of drugs and money in conjunction with the open conversations engaged in by employees, patrons and Officer Huguet demonstrated a persistent pattern of open and flagrant drug activity. The instances occurring at La Romanita were sufficiently open to put a reasonably diligent licensee on express notice that drug sales were occurring on the licensed premises.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the alcoholic beverage license held by Respondent, Jose Manuel Acosta, No. 23-03308, series 2-COP, be REVOKED. RECOMMENDED this 4th day of February, 1988, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1988.
The Issue The issue is whether the Petitioner, Harvey Donley, is liable for the jeopardy assessment as set forth in the Revised Notice of Assessment and Jeopardy Findings dated August 6, 1990.
Findings Of Fact On June 9, 1989, Petitioner sold a quantity of cocaine to a confidential informant at Albertson's Food Store on Apalachee Parkway, Tallahassee, Florida. On June 9, 1989, Petitioner drove to Albertson's Food Store, parked his car, and got into the confidential informant's vehicle. Shortly after Petitioner had entered the confidential informant's vehicle and conducted a transaction of cocaine, he was arrested. At the time of Petitioner's arrest, one plastic bag containing cocaine was recovered from the seat next to where Petitioner had been seated. A second bag of cocaine was recovered from Petitioner's shirt. After Petitioner's arrest, Petitioner told Sgt. McKissack that he got the cocaine from one Paul Dorlag. Petitioner further told Sgt. McKissack that the bag of cocaine in his shirt pocket was his "cut" of the cocaine. After Petitioner's arrest, police officers executed a search warrant at Petitioner's residence. During the search, under the search warrant, a small quantity of paraphernalia and drug residue were seized in Petitioner's home. This paraphernalia consisted of a plastic cocaine straw. Other evidence seized during the search of Petitioner's residence consisted of a cedar box containing cannabis residue and one bottle of Insitol. After his arrest, Petitioner was charged with trafficking in cocaine. Twenty-five and one-half (25.5) grams of cocaine were recovered from Petitioner's person when he was arrested. The estimated retail price of the cocaine seized from Petitioner was $100 per gram. The estimated retail value of the total amount of cocaine seized from Petitioner amounted to $2,550. The Revised Notice of Assessment and Jeopardy Findings dated August 6, 1990, is legally valid and mathematically correct. The 50% tax according to the revised assessment is $1,275. The 25% surcharge according to the revised assessment is $637.50. The penalty of 5% per month according to the revised assessment is $95.63. Interest accrued through August 2, 1990, amounts to $238.14. The total amount of the legal assessment against Petitioner is $2,246.27. The additional interest for the period from August 2, 1990, to the date of the hearing, January 31, 1991, amounts to $114.66. Interest continues to accrue until the assessment is paid. The total assessment due through January 31, 1991, is $2,360.93.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Revenue enter a Final Order upholding the revised assessment in the amount of $2,360.93, plus additional interest as shall become due after the date of the hearing. RECOMMENDED this 13th day of March, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2734 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Revenue 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-20(1-20) and 21(16). COPIES FURNISHED: Lee R. Rohe Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Harvey Donley 4918-B Crawfordville Road Tallahassee, Florida 32304 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 Vicki Weber General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100
The Issue The issue is whether, as provided by Section 943.1395(7), Florida Statutes, Petitioner may discipline the correctional and law enforcement certificates of Respondent due to his failure to maintain good moral character, as required by Section 943.13(7), Florida Statutes. If Respondent is subject to discipline, an additional issue is the penalty that Petitioner should impose.
Findings Of Fact At all material times, Respondent was a certified law enforcement officer, holding certificate number 200241, and a certified correctional office, holding certificate number 182381. Petitioner certified Respondent as a correctional officer in 1998 and as a law enforcement officer in 2001. As a correctional officer, Respondent has worked at the South Florida Reception Center and Broward Correctional Institution. In December 2001, the Town of Golden Beach Police Department hired Respondent as a law enforcement officer. Respondent was employed at the Town of Golden Beach Police Department until December 31, 2002. He is presently unemployed. On December 12, 2002, Respondent visited a local lounge while off-duty. Sitting by himself, Respondent ordered a drink and visited the restroom before the server delivered the drink. Upon returning from the restroom, Respondent found the drink where he had been sitting. Respondent consumed the drink and went home. The next morning, Respondent reported to the police station and performed his usual duties, which included transporting witnesses to the State Attorney's Office, appearing in court, and picking up uniforms. Upon his return to the office, a fellow officer informed Respondent that the police chief had received a tip that Respondent had been smoking crack cocaine the prior night and had ordered Respondent to undergo a urinalysis. As directed by the chief, Respondent and the fellow officer immediately drove to the laboratory so that Respondent could provide a urine sample. Four days later, on December 17, 2002, the chief told Respondent that the urinalysis had returned a positive result for cocaine and placed Respondent on administrative leave. Two weeks later, Respondent resigned. The laboratory that conducted the urinalysis is certified by the National Institute of Drug Abuse as a forensic toxicology laboratory and is authorized by the Agency for Health Care Administration to perform drug-free workplace testing. On December 16, 2002, the laboratory screened the urine sample and found a positive result for a cocaine metabolite, benzoylecgonine. As is typical with initial screens that produce positive results, on December 20, 2002, the laboratory retested the urine sample by gas chromatography mass spectrometry (GC/MS), which is a sophisticated, sensitive test. The GC/MS confirmed the presence of benzoylecgonine at the level of 36,900 nanograms/milliliter (ng/ml). This level of cocaine metabolite is indicative of a large amount of cocaine ingested not long before the production of the urine sample. At the request of Respondent, the laboratory retested the urine sample a few months later and detected significant levels of a wide range of cocaine metabolites. At the request of Respondent's attorney, the laboratory sent part of the urine sample to a second, independent laboratory, which, performing GC/MS on December 10, 2003, reconfirmed the presence of cocaine metabolites. The reported level, presumably of benzoylecgonine, was over 10,000 ng/ml. The second laboratory reported a lower level because this was the maximum threshold of its testing equipment and protocol and possibly because the cocaine metabolites decompose over time, even in urine that has been frozen, as the first laboratory had done in preserving Respondent's urine sample. The only anomaly in the confirmatory test performed by the first laboratory appears at page 16 of Petitioner Exhibit 2. This document concerns the confirmatory testing performed on several samples, including Respondent's. In reporting testing parameters, the document states that the "ion ratio int. std." for Respondent's sample was 3.67. The bottom column suggests that the permissible range is 2.44-3.66. The form contains a statement at the very bottom: "REVIEWER: RESULTS OF GC/MS WERE WITHIN THE TOLERANCES ACCEPTABLE UNDER OUR SOP [STANDARD OPERATING PROCEDURE] FOR RETENTION TIME, QUANTIFICATION OF CONTROLS, MASS RATIOS, AND IDENTIFICATION WITH THE FULL SCAN MASS SPECTRUM." After this preprinted statement, the reviewer added in handwriting: "except 326340." This is the number assigned to Respondent's sample. Unfortunately, the parties did not address this anomaly in the confirmatory test, and the record does not explain the meaning of the reviewer's note or the out-of-range ion ratio. The only unusual feature of the first laboratory's confirmatory test, as revealed in the record, is that the laboratory used a smaller sample size because the results were so high that, absent a diluted sample, the first laboratory's equipment could not produce a concentration level. However, the process by which this adjustment is made is not unusual, and the first laboratory performed the necessary calculations to produce a correct result. The uncertainty introduced by the reviewer's note is eliminated, though, by the extremely high levels of cocaine reported by the second laboratory a few months later, and the wide range of cocaine metabolites reported by the first laboratory in its reconfirmation testing one year after the initial screening. Respondent's defense is that, unknown to him and while he was in the restroom, someone at the lounge poured a large amount of cocaine into his drink. This defense is unworthy of belief. Respondent claims that he conducted a personal investigation into his case after the drug test showed cocaine metabolites in his urine. In the course of this investigation, Respondent interviewed a bartender at a lounge some distance from the one that Respondent had visited on December 12, 2002. During this interview, a woman at the bar, Stacie Dalgleish, who had once been an inmate at a correctional facility at which Respondent had served as a correctional officer, overheard him talking about the facts of this case and interrupted Respondent's conversation to tell him that she had witnessed what happened to Respondent that night. As Ms. Dalgleish testified at the hearing, she told Respondent that, on the night in question, she had been at the same lounge and had seen another woman, Lisa Binger, who had been incarcerated with Ms. Dalgleish. While in a stall behind a closed door, Ms. Dalgleish witnessed Ms. Binger and another woman snort cocaine. Ms. Dalgleish explained that she had been able to see Ms. Binger because she was lined up perfectly with the crack between the stall door and the frame. Ms. Dalgleish testified that she then heard Ms. Binger tell her friend that she was going to get Respondent because he had gotten her friend. Later, while seated near the bar, Ms. Dalgleish testified that she saw Ms. Binger pour the white powdery contents of an envelope into Respondent's drink, while Respondent had left his drink unattended. For his part, Respondent "explained" that he had caused a friend of the Ms. Binger to lose her job as a bartender when he had reported to the bar owner that Respondent had seen the woman stealing cases of beer. The improbability that Ms. Binger would part with a large amount of cocaine to incriminate Respondent is moderate. The improbability of the chance encounter between Respondent and Ms. Dalgleish, while Respondent was conducting his investigation is high. The improbability that, in a public restroom, Ms. Binger would theatrically announce her plans to surreptitiously pour cocaine into Respondent's drink, as she recklessly snorted cocaine with another woman--all while observed by Ms. Dalgleish sitting in a closed stall, but peering through a crack in the door that happened to reveal the scene that she described--is incalculably high. Exacerbating these credibility problems was Ms. Dalgleish's performance as a witness. She was an eager witness who, upon concluding her testimony, quickly walked over to Respondent to obtain his approval of her unconvincing performance. Respondent is lying about how he came to ingest a large amount of cocaine a short time before his drug test.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's correctional officer and law enforcement officer certificates. DONE AND ENTERED this 14th day of July, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 James C. Casey, Esquire Slesnick & Casey, LLP 2701 Ponce de Leon Boulevard, Suite 200 Coral Gables, Florida 33134-6020 Rod Caswell, Program Director Division of Criminal Justice Professional Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
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.
Findings Of Fact During the month of August 1990, petitioner, Gerald J. Vanacker, conspired with one Perry Anthony Laspina (Laspina) to purchase 40 pounds of marijuana (cannabis) in Broward County, Florida, for $34,000.00. Unbeknownst to the conspirators, the person from whom they arranged to purchase the marijuana was a detective with the City of Fort Lauderdale Police Department. The negotiations for the sale were made by telephone, and were primarily between Laspina and the detective; however, the petitioner was present with Laspina when the terms of the agreement were finalized. The basic terms of the agreement were that the detective would deliver 40 pounds of marijuana to Laspina in exchange for $34,000.00. At the actual time of sale, the agreement had been modified, due to a shortage of cash funds, to call for the exchange of $25,000 and the delivery of certain personal property as collateral for the payment of the balance of the agreed upon price. On August 15, 1990, petitioner and Laspina met with two undercover detectives, one of whom was the detective with whom Laspina had negotiated the deal, to purchase the subject marijuana. At that time, one of the detectives took possession of Laspina's car, left the area, loaded it with a 40-pound bale of marijuana, and returned the car and its cargo of marijuana to the site. Thereafter, the trunk was opened, and petitioner and Laspina examined and approved the marijuana. At that point, Laspina entered the detective's car so the money he had brought could be counted and exchanged, and petitioner and the other detective waited in Laspina's car. Shortly thereafter, other detectives arrived on the scene and petitioner and Laspina were arrested and charged with possession of marijuana, a felony, in violation of Section 893.13, Florida Statutes. On August 27, 1990, the respondent, Department of Revenue (Department) issued a Notice of Assessment and Jeopardy Findings which assessed tax and penalties in the amount of $25,500.00, together with interest thereon at the rate of $8.38 per day after September 21, 1990, against the petitioner, pursuant to Section 212.0505, Florida Statutes. The factual basis for the assessment was the petitioner's involvement in the marijuana transaction described in the foregoing findings of fact. Following unsuccessful efforts to resolve the matter, petitioner ultimately filed a timely petition seeking a formal hearing to contest the Department's assessment. At hearing, petitioner contended that he was not involved in any sale, use, or distribution of the subject marijuana, but had merely loaned Laspina $9,000.00 so he, Laspina, could purchase the marijuana. In exchange, petitioner expected a "quick turnaround" on his investment in that he expected to be repaid his $9,000.00, together with an additional $2,100.00, the same day that the marijuana was acquired. According to petitioner, he was merely present at the scene to make sure Laspina did not abscond with his money. Petitioner's contention regarding the limited nature of his involvement is contrary to the credible proof which supported the findings of fact hereto made. Moreover, even were petitioner's contentions to be credited, his involvement in the subject sale was likewise so extensive as to make him a conspirator in such unlawful transaction. In sum, the proof supports the conclusion that petitioner did engage in the unlawful use or distribution of cannabis as set forth in the Notice of Assessment and Jeopardy Findings, and that the Department's assessment of the tax, surcharge, and interest 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, Gerald J. Vanacker, is liable for taxes, penalties, and interest pursuant to Section 212.0505, Florida Statutes, and assessing the amount of such liability at $25,500.00, plus interest at the rate of $8.38 per day since September 21, 1990. RECOMMENDED in Tallahassee, Leon County, Florida, this 15th day of November 1991. 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 15th day of November 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2712 The Department's proposed findings of fact are addressed as follows: 1. Rejected as not a finding of fact. 2 & 3. Addressed in paragraph 3. 4-23. Addressed in paragraphs 1-3, 5 and 6. 24-29. Addressed in paragraphs 4 and 7. COPIES FURNISHED: Gerald J. Van Acker, pro se 1074 S.W. Jennifer Terrace Port St. Lucie, Florida 34953 Ralph R. Jaeger, Esquire Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1550 Vicki Weber, Esquire J. Thomas Herndon General Counsel Executive Director Department of Revenue 104 Carlton Building 204 Carolton Building Tallahassee, Florida 32399 Tallahassee, Forida 32399-0100
Findings Of Fact At all times pertinent to these proceedings, Roosevelt Horne was doing business as Roosevelt's Playhouse at 541 Julia Street, New Smyrna Beach, Volusia County, Florida, pursuant to Florida alcoholic beverage license number 74-00549, Series 2-COP. Roosevelt's Playhouse is the licensed premises. From September 21, 1988, through October 1, 1988, Blossem Butler White was employed by Mr. Horne at Roosevelt's Playhouse. Ms. White was the only person employed at Roosevelt's Playhouse by Mr. Horne from September 21, 1988, through October 1, 1988. During the period of September 21, 1988, through October 1, 1988, Reylius Thompson, a Law Enforcement Investigator of the Petitioner, participated undercover in a narcotics investigation of Roosevelt's Playhouse conducted by the Petitioner and New Smyrna Beach law enforcement officials. On the afternoon of September 21, 1988, Investigator Thompson entered Roosevelt's Playhouse. There were approximately 5 to 6 persons on the premises. Ms. White was the bartender. Mr. Thompson asked Ms. White if he could purchase crack cocaine. Ms. White first suggested that Investigator Thompson approach a male patron in the bar. Investigator Thompson indicated that the individual would not sell anything to him. Ms. White then asked Investigator Thompson how much cocaine he wanted and he indicated two pieces. Investigator Thompson gave Ms. White $20.00. Ms. White left her position behind the bar and approached a female patron identified as Angie Lewis. Ms. White and Ms. Lewis then approached a man in the lounge identified as Carlton. Ms. White gave Carlton money and Carlton gave Ms. White an item. Ms. White and Ms. Lewis returned to the bar and Ms. Lewis gave a piece of crack cocaine to Investigator Thompson. Investigator Thompson left Roosevelt's Playhouse and delivered the cocaine to Sergeant Lenz of the New Smyrna Beach Police Department. During the afternoon of September 29, 1988, Investigator Thompson entered Roosevelt's Playhouse. Ten or less patrons were on the premises. Ms. White was on duty as the bartender. Investigator Thompson sat at the bar and asked Ms. White if he could buy crack cocaine from her. Ms. White indicated that she did not have any at that time and asked if he could wait 15 minutes. After fifteen minutes Ms. White took Investigator Thompson into the men's restroom where she retrieved several pieces of crack cocaine wrapped in a napkin. Investigator Thompson took two pieces of the crack cocaine and paid Ms. White $40.00. Investigator Thompson left Roosevelt's Playhouse and delivered the cocaine to Sergeant Lenz. Investigator Thompson returned to Roosevelt's Playhouse during the evening of September 29, 1988. Ms. White was on duty as the bartender. Investigator Thompson asked Ms. White for one piece of crack cocaine. Ms. White left the service bar and went to the ladies restroom. Ms. White returned shortly thereafter and gave Investigator Thompson a piece of crack cocaine. Investigator Thompson paid Ms. White $10.00. Investigator Thompson left Roosevelt's Playhouse and delivered the cocaine to Sergeant Lenz. During the afternoon of September 30, 1988, Investigator Thompson entered Roosevelt's Playhouse. Five to six patrons were on the premises. Ms. White was on duty as the bartender. Investigator Thompson asked Ms. White is she had any crack cocaine. Ms. White said that he should get it from a man in the lounge later identified as Darnell. Investigator Thompson indicated that he did not want to buy it from Darnell. Ms. White then told Investigator Thompson that she would get it for him. Investigator Thompson then gave Ms. White $20.00 and Ms. White gave the money to Darnell in exchange for an item. Ms. White returned to her position behind the bar and gave Investigator Thompson a piece of crack cocaine. Investigator Thompson left Roosevelt's Playhouse and delivered the cocaine to Sergeant Lenz. During the evening of October 1, 1988, Investigator Thompson entered Roosevelt's Playhouse. Ms. White was on duty as the bartender. Ms. White was standing by a video machine talking to an individual known as Tony. Investigator Thompson approached the two individuals and asked Tony if he could buy crack cocaine. Tony said yes, took a piece of crack cocaine from his pocket and placed it on top of the video machine. Investigator Thompson gave Tony $20.00 and took the cocaine. Ms. White witnessed the. transaction. Investigator Thompson left Roosevelt's Playhouse and delivered the cocaine to Sergeant Lenz on October 3, 1988. The items purchased by Investigator Thompson at Roosevelt's Playhouse were analyzed and determined to be cocaine. During the period of September 21, 1988, through October 1, 1988, Mr. Horne was told by a friend that the friend suspected that Ms. White was selling illegal drugs at Roosevelt's Playhouse. Mr. Horne approached Ms. White on two separate occasions and asked her if she was in fact selling drugs. Ms. White denied that she was selling drugs. Mr. Horne did not take any other steps to insure that Ms. White was not selling, or allowing the sale of, drugs on the premises. During the time that Investigator Thompson was in Roosevelt's Playhouse, Mr. Horne did not enter the premises. Mr. Horne did not enter the premises very often despite the fact that Mr. Horne lived only one house from the premises. During the period at issue in this case Mr. Horne's wife had a stroke and was in the hospital. Mr. Horne spent his time visiting his wife in the hospital and working as a building contractor. Other than asking Ms. White if she was selling drugs in the lounge, Mr. Horne did not take any steps to prevent the sale of illegal drugs at Roosevelt's Playhouse. Roosevelt's Playhouse is closed and Mr. Horne is attempting the sell it. Mr. Horne cooperated with the Petitioner in the prosecution of this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Roosevelt Horne, d/b/a/ Roosevelt's Playhouse, be found guilty of violating Sections 561.29(1)(a) and (c), Florida Statutes (1987). It is further RECOMMENDED that the alcoholic beverage license held by Roosevelt Horne be suspended for a period of six months to allow Mr. Horne an opportunity to sell the license and business. It is further RECOMMENDED that, if Mr. Horne has not sold his alcoholic beverage license by the end of the six months suspension of Mr. Horne's license, Mr. Horne's alcoholic beverage license be revoked. DONE and ENTERED this 19th day of July, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of 19th July, 1989. APPENDIX Case Number 89-0793 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1. 1. 2-3. 2. 4. 3. 5. See 4. 6-7. Not supported by the weight of the evidence. The evidence did not prove what was being sold on September 21, 1988, by Carlton and on September 23, 1988. 8. See 5. 9. 6. 10. See 7. The sixth sentence is not supported by the weight of the evidence. 11. 8. 12. 9. 13-14. 10. 14-16. 11. COPIES FURNISHED: John B. Fretwell Assistant General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Roosevelt Horne d/b/a Roosevelt's Playhouse 541 Julia Street New Smyrna Beach, Florida 32069 Leonard Ivey Director Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Joseph A. Sole General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927
