Findings Of Fact At all times relevant to this case, Joel Albert Collinsworth held a valid Division of Alcoholic Beverages and Tobacco liquor license for the premises known as the Silver Bullet Bar and Lounge (hereinafter licensed premises), located at 12 North Ninth Street, DeFuniak Springs, Walton County, Florida. Petitioner's Exhibit 1. The license held by Respondent is number 76- 330, Series 2-COP and is limited to the sale of beer and wine on the licensed premises. Investigator Don Taylor is a police officer with the DeFuniak Springs, Florida, Police Department. On Thursday, December 10, 1987, Investigator Taylor entered the licensed premises and seized glass containers of liquid that were marked as Petitioner's Exhibits 2, 3, and 4. The containers were only partly full. Investigator Taylor, has on many occasions, observed, smelled and tasted distilled spirits (and testified that the liquid was whiskey and not wine or beer.) Respondent, Joel Albert Collinsworth was on the licensed premises at the time Exhibits 2, 3, and 4 were seized and was immediately placed under arrest by Investigator Taylor. The three (3) glass containers were taken to the Florida Department of Law Enforcement laboratory in Pensacola, Florida for testing and identification of the liquid contained in the three (3) bottles. The lab results shows that the liquid contained a high concentration of ethyl alcohol. Petitioner's Exhibit 5. Investigator Roy Harris, an 18 year veteran of the Division testified that the concentrations of alcohol listed in Exhibit 5 were sufficiently high that they could not be anything other than distilled spirits. The 2-COP license held by the Respondent allowed only consumption on the premises of beer and wine. The license does not permit possession, consumption or sale of distilled spirits on the licensed premises. The evidence showed that distilled spirits were being possessed and/or consumed on the premises owned and operated by Respondent under his beverage license. Such possession and consumption constitute a violation of Section 562.02, Florida Statutes. Petitioner requested that Respondent's license be revoked for the violation of the Liquor Law. No mitigating facts were presented by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is therefore RECOMMENDED: That Respondent is guilty of the offense set forth in the Notice to Show Cause issued on January 13, 1988, and that Petitioner should revoke the license of Joel Albert Collinsworth, d/b/a Silver Bullet Bar and Lounge. DONE and ENTERED this 22nd day of July, 1988, in Tallahassee, Florida. DIANE CLEAVINGER 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 22nd day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1295 Petitioner's Proposed Findings of Fact contained in paragraph 1, 2 and 3 have been adopted in substance in so far as material. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 W. Paul Thompson, Esquire Post Office Drawer 608 DeFuniak Springs, Florida 32433 Lt. Tom Stout, District Supervisor Division of Alcoholic Beverages and Tobacco 160 Governmental Center Suite 401, 4th Floor Pensacola, Florida 32501 Van B. Poole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue This case involves the issue of whether the Respondent's beverage license should be suspended, revoked or otherwise disciplined for multiple sales of controlled substances by employees and patrons on the licensed premises. At the formal hearing, the Division of Alcoholic Beverages and Tobacco called as witnesses, Rodney A. Russ, William J. Spears, and James B. McPherson. The Respondents called as witnesses, Deborah Craven, Tina Meredith, Roxanne Hayes, Walter Humphries, Chris Poulos, Mark Willingham, Leonard Coffee, and Respondent, Fred C. Dillman, II. Petitioner offered no exhibits and Respondent offered and had admitted one exhibit. Counsel for the Petitioner and counsel for the Respondent submitted memoranda of law. Neither party submitted proposed findings of fact and conclusions of law.
Findings Of Fact At all times material to the allegations and charges in this proceeding, the Respondents F. C. Dillman, B. J. Dillman, and F. C. Dillman, Jr., were the holders of a valid beverage license number 47-196, Series 4-COP. This license is held by Respondents as a partnership and is issued to the licensed premises known as Fred's Back Door Lounge, located at 2009 West Tennessee Street, Tallahassee, Florida. On Saturday, November 12, 1983, Beverage Officer Rodney A. Russ entered the licensed premises, Fred's Back Door Lounge, in an undercover capacity. Officer Russ had been requested by his superiors to conduct an investigation of possible drug activity at the lounge. The lounge is divided into a front area and back area by partial walls and there are bars serving drinks located in both areas. The lounge has a front entrance and a back entrance. The back entrance opens out onto a deck or porch area. Upon entering the licensed premises, Officer Russ, and a friend who accompanied him, ordered drinks from a bartender named Brenda. Officer Russ and his friend conversed with Brenda and during the course of the conversation, Officer Russ asked her if she knew someone she trusted that he could get two joints from. Joint is a slang or street term for a marijuana cigarette. Brenda responded that she didn't trust anyone. She then left the area where Officer Russ was seated. Officer Russ observed Brenda approach another bartender named Kathy. Kathy handed a rolled up napkin to Brenda and Brenda then walked back over to Officer Russ and handed the napkin to him. The napkin contained 0.975 grams of marijuana, a controlled substance under Chapter 893, Florida Statutes. On this particular evening, the lounge was approximately 3/4 full and had about 75 patrons. The employees on duty included three bartenders, two doormen, and a gentleman in the package store. The conversation with Brenda about drugs occurred in a low town of voice and could not be overheard by other patrons. Brenda attempted to conceal the transfer of the marijuana and there was no effort on Officer Russ's part to make the transfer obvious to anyone else. Brenda was not paid any money for the marijuana. On November 16, 1983, Officer Russ again went to the licensed premises and on this occasion, he was accompanied by Beverage Officer, Gloria Smith. They entered the lounge at approximately 9:30 p.m. and sat at the bar when Brenda was working mixing drinks. They talked with Brenda, and Officer Russ asked her if she could get a couple of joints for him and Smith. Brenda said she would see what she could do. During this conversation, there were patrons standing 2 or 3 feet behind Officers Russ and Smith. There were no seats on either side of them at the bar. Later that evening, Brenda delivered two joints of marijuana to Officer Russ. The joints were again rolled up in a napkin which Officer Russ did not open. Officer Ruff offered to pay Brenda for the marijuana and she refused to accept payment. This evening, the lounge was almost full and had approximately 100 patrons. There were three bartenders and two doormen on duty in the lounge. The napkins received from Brenda contained two rolled marijuana cigarettes containing 1.5 grams of Marijuana. No other employee participated in the drug transfer and the conversation about drugs was in a soft, low tone of voice. Officer Russ next returned to the licensed premises on November 18, 1983. He went to the lounge along an arrived at approximately 6:40 p.m. There were about 50 patrons in the lounge and Officer Russ took a seat at the back bar where Brenda was working. Of the approximately 50 patrons in the lounge about half of the patrons were in the back area. While seated at the bar, Officer Russ met Larry Mallon. During the conversation, Officer Russ told Mallon that he was looking for some marijuana. Mallon told him he had some and took a clear plastic baggie out of his right coat pocket and handed it to Russ. The marijuana was handed to Officer Russ just below the padded area of the bar. The transfer could have been seen by other persons in the lounge but was not visible to someone behind the bar. The plastic baggie contained 1.1 grams of marijuana. Russ did not pay Mallon for the marijuana. While seated at the bar, Russ also purchased 1 gram of cocaine from Mellon for $75. Mellon took the packet of cocaine from his right coat pocket and handed it to Russ. Russ then placed $80 on the bar and Mallon picked it up and handed him $5 in change. The cocaine transaction took place just as Officer Russ was about to leave the licensed premises. There was an employee present behind the bar approximately three (3) feet from Russ and Mallon when the drugs were transferred but Russ could not say whether the employee was looking at them or not. On this particular evening, Russ had no discussions about drugs with employees of the licensed premises. He left the licensed premises at approximately 9:00 p.m. Officer Russ had never met Larry Mallon. Officer Russ, along with Officer Smith, was next in the licensed premises on November 30, 1983. They entered the lounge at approximately 8:40 p.m. and took the same two seats at the same area of the bar where they had sat on the previous visit. Brenda was working behind the bar and Russ asked her if she had any amphetamines or uppers. She said she believed she-did have some and would look and see. Later, Brenda gave Officer Russ 2 tablets which she said were speed, but testing revealed they were not a controlled substance. He also asked Brenda if she could get some marijuana for Officer Smith. Brenda told Officer Russ that someone in the bar was selling marijuana for $100 an ounce and would break it down to quarter ounce for $30. Kathy, another bartender was present during the conversation about drugs and Brenda informed her that Officer Russ and Officer Smith were looking for some pot (marijuana) Later that evening, Officer Smith met a patron named Butch. Butch joined Officers Russ and Smith at the bar after Smith asked him across the bar about possibly obtaining marijuana. Butch told them he could get them a quarter ounce of marijuana for $30. Be said he would have to leave for about ten minutes but would return. He left and returned a short time later and stated to Officer Russ that he had the marijuana but wanted to make the transfer outside the car. Butch, Officer Russ and Officer Smith went out to the parking lot where Butch sold them 2 grams of marijuana for $30. Officers Smith and Russ returned to the lounge Russ asked Brenda if Butch could be trusted and if his marijuana was any good. She said Butch was o.k. During this conversation, a patron named Jim Bob was present. This particular evening, the lounge was crowded and loud music was playing. There were seven employees on duty in the lounge that night. While in the lounge, Officer Russ observed Brenda with a handful of red tablets and also observed a motorcycle gang type individual smoking what smelled like marijuana on the deck outside the back entrance of the lounge. Officer Russ next visited the licensed premises on December 3, 1983. Russ went to the lounge alone and sat at the bar where Brenda and Kathy were working. He began conversing with Brenda and Kathy and asked Kathy if she knew anyone he could get a quarter of an ounce of marijuana from. Kathy said she would look around and twice during the evening came back to Officer Russ and told him she was still looking. During the evening, Officer Russ also spoke to Butch and asked him if he was holding any drugs. Butch said he was not but that he should check the back porch, that there was someone usually smoking marijuana back there. Officer Russ did not obtain any drugs in the licensed premises this particular evening. Accompanied by Officer Smith, Officer Russ again returned to the licensed premises on December 7, 1983. They arrived at approximately 7:30 p.m. When they arrived, Fred Dillman, Jr., was seated at the front bar talking to Brenda. Officer Russ walked up to the bar and spoke to Brenda, who in turn introduced him to Fred Dillman. Later, after Russ went to the back bar, Brenda came back to the bar and began working behind the bar. Brenda told Russ she wanted to talk to him about her cousins in Bristol. She said her cousins had some good reefer (marijuana) and that she was going over to Bristol for the weekend. She asked if Russ wanted some of the reefer. Brenda initiated this conversation about drugs. While Russ was talking with Brenda, Larry Mellon was standing nearby. After Russ talked with Brenda, Larry Mellon began talking with him about the coke he had given him. Russ told Mellon he wanted to buy some reefer and Smith kept saying she wanted to buy coke. Russ told Mellon he wanted to buy $60 worth of reefer. Mellon then left the lounge with another man and moments later Mellon returned and handed a bag of marijuana to Russ. Russ had given the $60 to Mellon at the bar. The transfer of the money was very open and at the time the transfer took place, Brenda was behind the bar nearby. The baggie which Russ received from Mellon contained 9.9 grams of marijuana. Russ did not talk with any employee other than Brenda about drugs on this particular evening. At no time during the evening did Russ observe Dillman come into the back area of the lounge where Brenda was working. On Friday, December 9, 1983 Officer Russ returned to the licensed premises. He arrived at approximately 8:00 p.m. and went to the back area of the bar where Brenda was working. Officer Russ talked with Brenda about the marijuana she was going to get in Bristol and eventually he asked her if she had any speed. Brenda then took two capsules out of her purse and handed them to Officer Russ. When she retrieved the two capsules from her purse, she placed her purse on the bar and took out medicine vials. She looked in the vials until she found what she was looking for. She handed the two capsules across the bar to Officer Russ. Officer Russ had already received his drink and when he gave her the money, the only thing he received across the bar were the two capsules. The two capsules were phentermine, a controlled substance under Chapter 893, Florida Statutes. Officer Russ gave Brenda $10 for the two capsules and she reluctantly accepted the money. When she took the money, Brenda said she would get the prescription refilled and share them with Officer Russ. On this particular evening, there were approximately 35 to 40 patrons in the lounge and 4 or 5 employees on duty. On December 14, 1983, Officers Russ and Smith went to the licensed premises. Brenda was working that evening and Officers Russ and Smith took seats at the bar where she was working. They talked with Brenda and Officer Russ asked her if she could get them something. Brenda then went over to a male patron seated at the bar across from Officers Russ and Smith and talked with him briefly. She reached into the man's right shirt pocket and took out a small amount of marijuana wrapped in a clear plastic material like Saran wrap. Brenda then walked over and handed the packet to Officer Russ. The packet contained .9 grams of marijuana. That same evening, Officer Russ talked with one of the doormen named Hank (aka Hank the Tank) . The conversation took place at the back wall next to the juke box. Russ asked Hank if he knew where he could get some cocaine. Hank said he would check for him. Later that evening, Hank came back to Russ and said that everyone was out but that they would be getting some the next day. There were approximately 75 patrons in the lounge this night and there were approximately 7 employees on duty. On December 16, 1983, Officer Russ returned to the licensed premises. He was accompanied by Barbara Brown, a Callaway police officer. They entered the lounge at approximately 8:25 p.m. and took seats at the beck bar where Brenda was working. There were approximately 50 to 70 patrons in the lounge and 6 employees on duty. While seated at the bar, Officer Russ talked with Brenda, who at one point placed her purse on the bar and searched through several medicine vials just as she had done on a prior occasion. She then handed Officer Russ a yellow capsule similar $0 the ones he had received before. Russ did not pay Brenda any money for the capsule. The capsule was phentermine, a controlled substance under Chapter 893, Florida Statutes. This evening, Officer Russ also spoke with a doorman or bouncer on duty named Kevin. He asked Kevin if he could get him some marijuana. Kevin said Tallahassee was dry and that he had not had a joint in 3 days. Kevin, at the time of the formal hearing, was no longer employed by the Respondent. On his next visit to the licensed premises, Officer Russ was accompanied by Officer Smith. This visit occurred on December 21, 1983. There were between 50 and 75 patrons in the lounge and 5 employees on duty. Officer Russ spoke with one of the barmaids on duty about Kevin. Russ also asked her if she knew where he could get a joint. She said she did not, and suggested he talk to Cindy the bartender at the front bar. Brenda was not working this particular evening end Cindy was working at the front and back bar. Cindy was working at the back bar at that time and Russ spoke with her about the availability of drugs. Cindy told Officer Russ that she had a friend who would be returning with some Hawaiian marijuana. Larry Mellon overheard the conversation and told Cindy and Russ that the guy she was referring to wasn't coming back but was going to Chi-Chi's and then-home. Russ then began talking with Larry Mellon and Jim Bob Kitchen joined them. During the conversation, Jim Bob handed a marijuana cigarette to Officer Smith who then handed it to Officer Russ. The exchange occurred at approximately 10:00 p.m. The marijuana cigarette looked like a rolled marijuana cigarette and contained .2 grams of marijuana. This same evening, Officer Russ was introduced by Butch (whom he had met previously) to a woman named Melinda. Officer Smith had earlier been introduced to Melinda by Butch and was told that Melinda had some marijuana to sell. Officer Russ discussed buying some marijuana from Melinda, and Russ, Smith, and Melinda then went outside the lounge to the parking lot where Melinda sold 11 grams of marijuana to Officer Russ for $30. Officer Russ had never met Melinda before. On Wednesday, December 28, 1983, Officer Russ returned to the licensed premises. Brenda was working at the back bar and Russ took a seat at that bar. Russ asked Brenda if she had gotten the marijuana in Bristol. She said she had not but that she had gotten some more pills from her doctor in Quincy. She said she had marijuana and pills in her car and that she had taken some really good cocaine earlier in the evening. Russ asked Brenda if she had any of the cocaine left and she said she did. Brenda offered to sell Russ some of the cocaine for $75. This discussion took place at the bar with Larry Mellon and Jim Bob Kitchen present. While he was seated at the bar, Brenda got her purse and went to the doorway located next to the little short bar. She took out some pill bottles and in a few moments returned to Russ and gave him an envelope. As she handed him the envelope, Brenda stated she had put the other stuff in there too. The envelope was handed across the bar in open view. The envelope contained 15 capsules of phentermine and a triangular shaped packet of cocaine. Larry Mellon was standing nearby when the transfer occurred and asked Russ what they were doing. Russ said, "Nothing." Larry then stated that he knew what they were doing and that he had seen money change hands and had seen the envelope. After he received the envelope, Russ again asked Brenda about getting some marijuana. Brenda then left the bar through the front door and returned shortly through the same door with a brown bag in her hand. She handed the bag to Officer Russ who then put the bag in his beck pocket. The bag contained .2 grams of marijuana. On January 4, 1984, Officer Russ went to the licensed premises alone. When he arrived, there were very few patrons in the bar and Brenda was seated at the back bar with her feet up. The other bartender, Kathy, was also present. Officer Russ talked with Brenda and Kathy and jokingly asked Kathy if she would like to run a couple of lines of cocaine on the bar. Be also asked Brenda if she had been to Bristol yet. Brenda responded she had but not far enough to get the marijuana. Cindy came back from the front bar and spoke to Brenda, and Russ asked Cindy if her friend with the Hawaiian stuff had come back. Cindy responded, "No." Brenda brought up the subject of pills and placed her purse on the bar end looked at several medicine vials. She took some pills out of one of the vials and placed them in a napkin and handed the napkin to Russ. Russ told Kathy that Brenda had just given him some speed and did she want some. Brenda responded by saying, "Kathy wants coke." Russ then told Cindy that Brenda had given him some speed end did she want to go outside and have some. There were a total of four employees on duty in the lounge this night. There were no doormen working. There were approximately 20 patrons in the lounge. The ten white capsules which Officer Russ received from Brenda were methyephenidate a Schedule II controlled substance under Florida law. Officer Russ's lest visit to the licensed premises was on January 6, 1984. Russ entered the lounge alone and as he entered, he spoke -with Kathy, Cindy and another bartender named Pam. Russ went to the back bar where Brenda was working. He obtained some pills from Brenda. These pills were handed across the bar to Russ and were not in any type of container. Prior to this transfer, Russ had been talking to a patron named Bucky about drugs and pills. As she handed Russ the pills, Brenda stated that she did not have anything to put them in and that she was going to take one herself. Russ told her to give Bucky one and she did. Russ then gave Brenda $20 and told her that she could get the prescription refilled and share them with him. Russ left the licensed premises about 8:55 p.m. and as he was leaving, he spoke to the two doormen. He first asked them where Hank was and they said, "Osceola Hall." Russ then told them that he had just gotten some speed and that he was going outside to take some. The two doormen just laughed. Neither of them asked him to leave. Mr. Fred Dillman was observed in the licensed premises on only one of the 14 evenings Officer Russ was in the lounge. Sometime in October, Mr. Dillman injured his hand and lost a finger in an accident on his farm. Because of this injury he was in the lounge less than he normally would have been in November and December. Mr. Leonard Coffee is the manager of the licensed premises. He manages Fred's Back Door Lounge and another lounge owned by the Respondents. He has worked as manager for 11 or 12 years and has worked in the liquor business off and on since 1955. He divides his work hours between Fred's Back Door Lounge and the other lounge he manages. Mr. Coffee was never informed by any employee that Brenda was dealing drugs in the lounge. It was not established how much of the manager's time is spent in each lounge. Mr. Coffee testified that he instructed all employees to call the police then report to them if they saw anyone with drugs in the lounge. However, only one of three bartenders who testified recalled having been instructed to report drug problems to the manager. Several employees had been approached about drugs and did not report this information to the manager or the owner. One employee, Walter Humphries, had detected a strange odor in the lounge on prior occasions and hand thrown out people in the area of the odor. On one of his visits, Officer Russ also smelled what he considered to he marijuana smoke inside the lounge. There was no clear policy established or communicated to the employees as to what they were to do if they detected drugs being used or sold on the licensed premises. Mr. Coffee testified that he told the employees to call the police end inform him if there were any drugs detected on the licensed premises. However, the employees were not aware of this policy and did not follow the policy. There were no instructions given to employees regarding the detection of drugs and what they should look for in observing and supervising the licensed premises. There were no regular employee meetings where problems or potential problems in the lounge such as drugs were discussed. At the time each employee is hired, they are interviewed and are asked for prior work references. They are not required to fill out an application and are not asked whether they use drugs. No signs were observed in the lounge prohibiting the use or possession of drugs. Approximately two years ago, Respondent, Fred Dillman, 11, was informed by his attorney that the District Beverage Captain had received information that Brenda was selling drugs at the licensed premises. Mr. Dillman confronted Brenda with this information and she denied any involvement with drugs. Brenda, at that time, had been a good employee without any problems at work for seven years. He did not terminate Brenda but asked Mr. Coffee and another employee, Mr. Poulis, to keep an eye on Brenda. Mr. Poulis works in the liquor store from 6:00 p.m. to 10:00 p.m. and then works in the lounge until closing time at 2:00 a.m. Prior to his accident in October, Mr. Dillman was in the lounge more at night. Mr. Dillman's father and mother do not go-to the lounge at night. The patrons of the lounge are almost entirely college age. Mr. Dillman had received information that patrons were smoking marijuana on the back deck of the lounge and that the bikers were dealing drugs on the deck. Approximately one month ago, he instructed his bartenders to stop serving the bikers. Mr. Dillman was aware that drugs were likely to be present in a primarily college age crowd. Fred's Back Door Lounge has a reputation in the community as an establishment where drugs could be obtained. The Respondents do not approve of or condone use of drugs in the licensed premises or elsewhere. Neither the Respondents nor the manager, Mr. Coffee, were aware that Brenda was selling drugs on the licensed premises.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondents guilty of the violations as set forth above and suspending the Respondent's license for a period of 90 days and impose a civil penalty of $10,000. DONE and ORDERED this 23rd day of January, 1984, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 24th day of January, 1984. COPIES FURNISHED: Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 James N. Watson, Jr., Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 James P. Judkins, Esquire P.O. Box 10368 Tallahassee, Florida 32302 Marion D. Lamb, Jr., Esquire P.O. Box 1778 Tallahassee, Florida 32302
The Issue Whether the Division of Alcoholic Beverages and Tobacco (DABT) should take disciplinary action against respondent or its DABT license for the reasons alleged in the notice to show cause?
Findings Of Fact At all pertinent times, respondent 201 West, Inc. d/b/a Central City/Congo Craig's Safari, has held a quota license, No. 11-00259 4COP, authorizing it to sell alcoholic beverages at 201 West University Avenue, Gainesville, Florida. On August 23, 1991, Craig Cinque, respondent's sole shareholder and officer, executed on respondent's behalf a consent agreement which petitioner accepted and filed on September 6, 1991, resolving administrative proceedings then pending. The consent agreement provides: "The second and third floors now known as 'Congo Craig's' shall not admit customers under 21 years of age for a period of two years " Underaged Patrons Apprehended At eleven o'clock on a crowded Saturday night, September 7, 1991, five DABT officers entered Congo Craig's to check patrons' ages. DABT and other witnesses agreed that the bar had enough staff demanding proof from patrons of their ages as they entered, and that the lighting was adequate for this purpose. The DABT officers checked a number of already admitted patrons' "ID's" themselves, and found a false one that a 20-year-old woman, Amy L. Bruns, whom they saw drinking draft beer, had used to gain admission. The Maryland driver's license described a woman of its bearer's height and weight, but depicted a blonde, not the brunette the officers accosted. Petitioner's Exhibit No. 3. The next time DABT officers, again a contingent of five, discovered an under age patron at Congo Craig's was on October 12, 1991, another Saturday night when DABT and other witnesses agreed that the bar had enough staff checking patrons' ages as they entered, and that the lighting was adequate. Kim M. Chiappara, then 20 years and eight months old, was sharing a pitcher of draft beer with her older sister and others when she was interrogated by the DABT officers that night. A search of her person turned up no false identification. She was not asked whether she had used any, or borrowed her sister's identification, to get by the bouncers. The next Friday night DABT officers apprehended Dari A. Layne, who was born on October 27, 1972, at Congo Craig's shortly before midnight, as she was consuming a mixed drink. The "very good" counterfeit Pennsylvania driver's license she produced when asked for identification has her photograph, but lacks a holographic state stamp on the obverse and has a photocopied reverse, albeit duly laminated. After midnight on the same foray, DABT officers discovered Kim C. Stampler, three months and a week shy of her 21st birthday, holding a clear plastic cup containing a purple liquid. She denied having false identification, but a DABT officer's search turned some up. Also in the early hours of October 19, 1991, DABT officers arrested Christopher Wisniewski, an apparently intoxicated 16-year-old, whose father, also apparently intoxicated, only reluctantly admitted their relationship. Christopher, who was not asked what or whose identification, if any, he had used to get in, had a valid Florida driver's license on his person. Bar Tender Arrested The personnel that respondent assigned to check patrons identification as they entered did not take their stations until five o'clock evenings, an hour after opening. Aware of this, the DABT dispatched Randy Gordon (a stout, older- looking 19-year-old, who has succeeded two out of three times in efforts of this kind at some ten other establishments) to Congo Craig's. He readily gained admission between four and half past on the afternoon of November 8, 1991, without being asked for identification. The first customer of the evening, Randy asked Eric Frauman (who had agreed at the last minute to fill in for another bartender, and who ordinarily worked evenings when the bouncers, not the bartenders, are responsible for checking customers' identification) for a hamburger and a beer. Although he had been told to "card" everybody, Mr. Frauman neglected to ask young Mr. Gordon for identification. The second customer that evening was Ernest Wilson, the special DABT agent responsible for paying five dollars an hour for Mr. Gordon's services. Mr. Wilson took the beer, and Mr. Gordon, who paid for both, got the hamburger, which he described as very good. Mr. Frauman, a graduate student hoping to work as an educational counselor, was arrested and eventually prosecuted criminally. Precautions Taken Respondent is qualified as a responsible vendor, and was so certified during the time DABT made such certifications. All of the 18 employees respondent relies on for "security," those checking patrons' ages at night as well as the daytime bartenders and servers, are current with regard to the courses, tests and update meetings the responsible vendor program requires. Respondent's managers are current on requirements for managers. At weekly meetings of the managers, underage drinking was a regular topic. A book depicting driver's licenses in various jurisdictions is kept on the premises, and respondent's employees who testified seemed knowledgeable on the subject. Employees responsible for checking patrons' ages are told to require, at least of anybody who looks younger than 45, a driver's license, military identification or a passport. Several repeat customers testified that they had invariably been "carded." Although Congo Craig's can lawfully accommodate no more than 925 persons at any one time, the crowd "turns over" as the night wears on. From 35,000 to 45,000 patrons were on the premises between September 7, 1991, and November 18, 1991. During this period, DABT officers made several visits on which they failed to find a single patron under the age of 21. According to Kim Ehrich, who once worked at Congo Craig's, but now works elsewhere, Congo Craig's is probably the "strictest" bar in Gainesville, and does a more thorough job checking identification than the three other bars where she has worked in Gainesville. Willful Breach A week or so before the party at Congo Craig's on October 3, 1991, Charlotte Olsen, then social chairperson for the Phi Sigma Sigma sorority, told somebody at Congo Craig's that some of the party-goers would be under 21 years of age. She offered the sorority's wrist bands to demarcate those old enough to drink legally, but Congo Craig's used its own instead. Mr. Cinque was aware that underaged persons were expected to attend the party scheduled for the second and third floors, and decided to allow it, despite the consent agreement, in order to preserve "good will." About half of the 50 to 60 people at the party were under 21 years of age. He added staff, he testified, in an effort to stymie drinking by underaged attendees. This effort proved dramatically unsuccessful. Past Problems DABT established (in aggravation of penalty only) that respondent has a long history of problems of the kind proven in this case, dating to when respondent's father owned the establishment. When Mr. Cinque worked as a manager, before he became the owner, DABT issued some ten orders to show cause alleging beverage law violations, most of which respondent admitted. Since the younger Mr. Cinque assumed ownership, DABT has filed eight additional orders to show cause, the first seven of which were consolidated and disposed of by the consent agreement accepted by DABT on September 6, 1991.
Recommendation It is, accordingly, RECOMMENDED: That the Division of Alcoholic Beverages and Tobacco suspend respondent's license for ten (10) days. DONE and ENTERED this 10th day of December, 1992, at Tallahassee, Florida. ROBERT T. BENTON, II 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 11th day of December 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact Nos. 1-21, 24, 25, 28, 29, 31, 34- 46, 50, 53-56 and 58 have been adopted, in substance, insofar as material. With respect to petitioner's proposed findings of fact Nos. 22 and 23, it is not that easy to make out the eye color of the woman depicted on the license. With respect to petitioner's proposed finding of fact No. 26, Ms. Chiappara did not testify at hearing; it is not clear what sworn statement is meant. With respect to petitioner's proposed finding of fact No. 27, the evidence suggested that she used the counterfeit license to gain entry. With respect to petitioner's proposed findings of fact Nos. 30 and 33, the method of entry was not proven, but there was speculation. With respect to petitioner's proposed finding of fact No. 32, she was drinking a purple beverage. With respect to petitioner's proposed finding of fact No. 47, she so testified. Petitioner's proposed findings of fact Nos. 48, 49 and 59 are properly proposed conclusions of law. Petitioner's proposed findings of fact No. 51 and 52 have been rejected as not established by the weight of the evidence. With respect to petitioner's proposed finding of fact No. 57, the number of allegations is immaterial. Respondent's proposed findings of fact Nos. 1-10 and 14-17 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 11, Mr. Frauman did not usually work the day shift. With respect to respondent's proposed finding of fact No. 12, time constraints do not account for the failure to honor the consent order. Respondent's proposed finding of fact No. 13 is properly a proposed conclusion of law. COPIES FURNISHED: Thomas A. Klein, Esquire 725 South Bronough Street Tallahassee, Florida 32399-1007 Sy Chadroff, Esquire 2700 S. W. 37th Avenue Miami, Florida 33133-2728 Donald D. Conn General Counsel The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Richard W. Scully Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Respondent holds alcoholic beverage license no. 56-526, Series 2-COP. The licensed premises is known as the "Green Frog" and is located at 1216 Santa Rosa Boulevard, Fort Walton Beach, Florida. The corporate officers of Respondent are Charles J. Schoener, Marlene D. Schoener, Mitch M. Smith and Charles M. Hall. On September 27, 1983, Investigator Robert Randle of the Gulf Breeze Police Department was approached by two individuals as he exited the licensed premises of the Green Frog and was asked if he wanted to purchase some marijuana. While discussing the marijuana purchase, Randle was approached by the Green Frog doorman who was working on the premises that night. The doorman, known as "Animal," inquired of Randle if he wanted to buy a small quantity of cocaine and displayed a small plastic baggie containing a white substance which he offered to sell for $30. After paying the doorman $30 for the small package represented to be cocaine, Randle submitted the contents for chemical analysis. Subsequent analysis revealed the presence of no controlled substance. On or about February 18, 1984, Officer Randle again entered the licensed premises of the Green Frog in an undercover capacity. While on the licensed premises, Randle contacted a dancer known as "Angel." Randle asked Angel where he could obtain some narcotics and she directed him to her apartment. Randle went to the apartment but was unable to purchase any drugs. He returned to the Green Frog and told Angel that he had been unsuccessful. She left Randle's presence but later delivered a partial marijuana cigarette to him on the licensed premises. Subsequent analysis of the partial cigarette showed the contents to be cannabis/marijuana. On or about February 28, 1984, Officer Randle again entered the licensed premises in an undercover capacity. On this date, he made contact with a dancer known as "Sugar" and asked her if he could obtain some marijuana or cocaine. Sugar directed Randle to the dancer Angel's apartment where he was told he could purchase a baggie of marijuana. Upon reaching the apartment Officer Randle informed Angel that Sugar had told him he could buy a bag of marijuana from her. At this time Angel sold a baggie of marijuana to Officer Randle for $25. Subsequent analysis of the baggie's contents revealed that it contained cannabis/marijuana. On or about March 6, 1984, Officer Randle returned to the licensed premises as part of this investigation. Upon entering, Randle engaged the dancer Sugar in conversation and advised her he was looking for narcotics. Shortly thereafter, Sugar told Randle he could purchase one-quarter gram of cocaine for $25. Later, she informed him that she was obtaining the cocaine from another dancer who would only sell half-gram amounts for $50. Randle then gave Sugar $50 and observed Sugar leave his table, speak to an unidentified dancer and return to his table. Sugar then handed Randle a plastic baggie containing a white powdery substance. Subsequent analysis of the contents of the bag showed that it contained cocaine. On or about March 17, 1984, Officer Randle again entered the licensed premises as part of the ongoing investigation. Randle made contact with the dancer "Kelly" and the dancer "Lisa." Randle told Kelly that he had "scored" some good cocaine previously from the dancer Sugar and that he was looking for her. In response to this statement, Kelly informed Randle that she had supplied Sugar with the cocaine and that she could sell him a half-gram of cocaine for $50 that evening. Later, Randle was approached by the dancer Lisa who asked him if he was holding some cocaine. Randle informed her that he was looking for cocaine and asked her if she could sell him some. Lisa also told him that she was waiting for her supplier and that she would sell him a $50 package when the supplier arrived. While waiting for the supplier to arrive on the premises, Randle was again approached by Lisa who gave him the phone number of her supplier and suggested he call the supplier and tell him to come to the licensed premises with the cocaine. Later, a male patron arrived at the premises and was observed talking to Lisa by Randle. Shortly thereafter, both Lisa and Kelly delivered small plastic baggies containing white substances to Randle who was seated at a table. Both deliveries were made inside the lounge in plain view. Subsequent analysis confirmed that both packages contained cocaine. Beginning around late February 1984, Mr. Tim Forehand regularly sold and supplied cocaine on the licensed premises. His sales were generally in one- half gram packages and the dollar amount of such sales on the licensed premises ranged from $200 to $1800 per night. Forehand supplied the cocaine on March 17, 1984, to the dancers Lisa and Kelly who then sold this substance to Officer Randle. Forehand also sold cocaine six or eight times to a corporate officer's son, David Schoener, who worked as a bartender on the licensed premises. On one occasion, Charles Schoener barred Forehand from the licensed premises for dealing drugs. He was, however, allowed back onto the premises within one week, The testimony of Lisa Dixon, Melissa Crawford (a/k/a Sugar) and Tim Forehand indicated that drug use and sales in the licensed premises were open and extensive. Sugar testified that see had used cocaine with Charles Hall, an officer-owner, on the licensed premises. Similarly, Lisa Dixon testified that she was in the presence of Charles Schoener on an occasion when he used cocaine in the licensed premises. In their testimony, Charles Schoener and Charles Hall denied using drugs on the licensed premises. Their testimony and that of a third owner- manager, Mitch Smith, a bartender, Jim Ellis, and a dancer, Evangeline Potts, indicated that drug use and sales were rarely observed and that action was taken to bar customers or warn employees when such incidents occurred. The documentary evidence and testimony of both Petitioner's and Respondent's witnesses established that Respondent had a stated policy against drug use or possession on the premises. Employee rules to this effect had been adopted and posted for over a year and periodic employee meetings were held at which the no drug policy was discussed. However, enforcement was not vigorous as indicated by the fact that Forehand was allowed to return to the Green Frog even though he had earlier been barred for drug activity. Further, Charles Schoener, the corporation president, did not discharge the dancer Kelly, even when he suspected her of illegal drug activity on the licensed premises. Much of the testimony of the witnesses with the exception of Officer Randle and Officer Kiker (who was not directly involved), was self-serving and lacking in credibility. Forehand, Dixon and Crawford have all been arrested and charged with criminal offenses. They were advised that their cooperation in this proceeding could favorably effect their sentences if convicted. Respondent's witnesses are owners and employees of the licensed premises, and thus have a stake in preserving the beverage license. In addition to their denials, the purported use of cocaine by Charles Schoener and Charles Hall on the licensed premises in the presence of their employees is inconsistent with their efforts to prohibit or at least discourage drug use. Further, the testimony of Officer Randle indicates that drug sales and use were not "wide open" as claimed by Petitioner's other witnesses. Randle visited the licensed premises in an undercover capacity on numerous occasions beginning September 27, 1983, but was not able to obtain a delivery of a controlled substance until February 18, 1984.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending Respondent's alcoholic beverage license for a period of 90 days, including the emergency suspension now in effect. DONE and ENTERED this 17th day of April, 1984, in Tallahassee, Florida. R. T. CARPENTER 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 17th day of April, 1984.
The Issue Whether respondent's alcoholic beverage license should be revoked for violating a stipulation stated on the record in a prior license revocation proceeding.
Findings Of Fact Respondent holds alcoholic beverage license no. 16-2337, Series 2-APS and owns and operates Hammer's Package Store, the licensed premises, at 3231-A West Broward Boulevard, Ft. Lauderdale, Florida. In 1981, DABT filed two administrative actions to revoke respondent's alcoholic beverage license pursuant to Section 561.29, Florida Statutes. The charges were, apparently, disputed and a hearing officer requested, since the cases were forwarded to the Division of Administrative Hearings for assignment of a hearing officer. Thereafter, on April 18, 1981, Hearing Officer Robert T. Benton, II, conducted a Section 120.57(1) hearing on the charges. At hearing, both parties were represented by counsel: DABT by James N. Watson, Jr., a staff attorney for the Department of Business Regulation; respondent by Ray Russell, whose address was 200 S. E. 6th Street, Ft. Lauderdale, Florida 33301. At the outset, counsel for both parties advised Hearing Officer Benton that they had reached "an agreement" (P-1, p. 3), thus obviating the need for a hearing on the charges. Counsel then recited, on the record, the terms of their settlement agreement: respondent was given 90-days in which its corporate entity could be sold, with the period beginning to run from March 19, 1981--the next day--and ending on June 16, 1981; when the corporate entity was sold or the 90-day period expired, whichever occurred first, respondent was to surrender its alcoholic beverage license to DABT for cancellation; respondent waived its right to an evidentiary hearing on the charges and to appeal any matters covered by the agreement; and, from the time the corporate entity was sold or the 90-day period for sale expired, no corporate officers, directors, or shareholders of respondent would again engage in the alcoholic beverage business, make any application for a beverage license, apply for transfer of a beverage license, or hold an interest in any business involved in the sale or distribution of alcoholic beverages. (DABT Ex. 1, p. 5-8). Without objection from respondent's counsel, DABT's counsel described the consent order (or settlement agreement) as "in the nature of a final administrative action and [respondent] acknowledges that its failure to abide by such would subject him to the provisions of Florida Statutes 120.69 (P-1, p. 6). Although this settlement agreement was effective and began to operate immediately (the 90-day period for sale commenced the next day) DABT's counsel contemplated that a written and signed consent order embracing the terms of the settlement agreement would be subsequently issued. Although such follow-up action was intended, it never occurred. DABT never issued a written order, consent or otherwise, embracing the terms of the settlement agreement. Hearing Officer Benton and, at least one party, thereafter relied on the settlement agreement. The hearing officer closed both Division of Administrative Hearings files, and DABT no longer prosecuted respondent under the pending charges. Since June 16, 1981, the expiration of the 90-day period provided in the agreement, respondent has continued to operate its licensed alcoholic beverage premises, has failed to sell its corporate entity, and has failed to surrender its alcoholic beverage license. Respondent has presented no evidence justifying or excusing its failure to surrender its alcoholic beverage license to DABT for cancellation on or before June 16, 1981. Neither does it seek to withdraw from or set aside the settlement agreement.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license be revoked. DONE and ENTERED this 26th day of May, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1983.
The Issue This case concerns an Administrative Complaint filed by the Petitioner against the Respondent. Count I to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13(1)(a) and 561.29, Florida Statutes, by actions of one of its agents, servants or employees, namely: Penny Reid, related to sales of the substance methaqualone, on July 26, 1981, and August 22, 1981. Count II to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of one of its agents, servants or employees, namely: Penny Reid, related to sales of the substance methaqualone, on July 16, 1981, and July 20, 1981, and September 9, 1981. In addition, there are allegations of a sale of lysergic acid diethylamid, on July 16, 1981. 2/ Count III to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13(1)(a) and 561.29, Florida Statutes, by actions of one of its agents, servants or employees, namely: "Eve" related to sales of the substance methaqualone, on August 14, 1981, and with the sale of the substance cocaine, on August 15, 1981. Count IV to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13(1)(a) and 561.29, Florida Statutes, by actions of one of its agents, servants or employees, namely: "Kitty," related to sales of the substance methaqualone, on August 15, 1981, and with the sale of the substance cocaine on September 26, 1981. Count V to the Administrative Complaint accuses the Respondent of violations of Sections 893.03, 893.13(1)(a) and 561.29, Florida Statutes, by actions of one of its agents, servants or employees, namely: "Orlando," related to sales of the substance cannabis, on July 26, 1981. Count VI to the Administrative Complaint accuses the Respondent of violations of Sections 893.03, 893.13(1)(a) and 561.29, Florida Statutes, by actions of one of its agents, servants or employees, namely: "Julie," related to sales of the substance cocaine on September 26, 1981. Count VII to the Administrative Complaint accuses the Respondent, between July 16, 1981, and October 2, 1981, of maintaining a place, namely the licensed premises, which was used for keeping or selling controlled substances, in particular methaqualone, cocaine and cannabis, in violation of Subsections 893.13(2)(a).5 and 561.29(1)(c), Florida Statutes. Count VIII contends that between July 16, 1981, and October 2, 1981, the Respondent, by actions of its agents, servants or employees and patrons, kept or maintained the building or place which was used for illegal keeping, selling or delivering of substances controlled under Chapter 893, Florida Statutes, and in doing so violated Section 823.10, Florida Statutes, and Subsection 561.29(1)(c), Florida Statutes. Count IX accuses the Respondent of allowing its agent, servant or employee, Annie D. Bryant, to unlawfully possess a controlled substance on the licensed premises, namely, marijuana, in violation of Section 893.13, Florida Statutes, and Subsection 561.29(1)(a), Florida Statutes. Count X accuses the Respondent of allowing its agent, servant or employee, Danita Buchin, to unlawfully possess a controlled substance on the licensed premises, namely, marijuana, in violation of Section 893.13, Florida Statutes, and Subsection 561.29(1)(a), Florida Statutes. Count XI accuses the Respondent of allowing its agent, servant or employee, Barbara Jean O'Rourke, to unlawfully possess a controlled substance on the licensed premises, namely, marijuana, in violation of Section 893.13, Florida Statutes, and Subsection 561.29(1)(a), Florida Statutes. Count XII accuses the Respondent, on April 20, 1981, through its corporate officers, directors, stockholders, employees, agents, or servants, of failing to file a sworn declaration of the transfer of voting stock of the corporate licensee, in violation of Rule 7A-3.37, Florida Administrative Code. Count XIII accuses the Respondent, through actions of its corporate officers, directors, stockholders, employees, agents, or servants, on May 4, 1981, of failing to notify the Petitioner of a change of corporate officers within ten (10) days of that change, in particular, within ten (10) days of the resignation of George and Florrie Pappas, as corporate officers and directors of the corporate licensee, in violation of Rule 7A-2.07(2), Florida Administrative Code.
Findings Of Fact Effective August 18, 1980, Pappas Enterprises, Inc., which trades or does business as Foremost Liquors and Hideaway Lounge, at 1005 East 49th Street, in Hialeah, Dade County, Florida, was licensed by the Petitioner to sell alcoholic beverages. At that time, the sole officers listed for the corporation were George and Florrie Pappas. George Pappas was listed as the sole shareholder. In May, 1981, Miguel Rodriguez purchased the shares in the corporation, Pappas Enterprises, Inc. At that time, in his attorney's office, he executed a personal data sheet and certificate of incumbency for the benefit of the Division of Alcoholic Beverages and Tobacco; however, this personal data sheet proposing Rodriguez as a new officer and shareholder of the subject corporation was not filed with the Division of Alcoholic Beverages and Tobacco until October 14, 1981. Furthermore, the first official request for change of corporate officers, owners and shareholders from the Pappases to Rodriguez was not filed with the Division of Alcoholic Beverages and Tobacco until November 4, 1981. Prior to October 14, 1981, the Respondent corporation, in the person of Miguel Rodriguez, was served with a Notice to Show Cause/Administrative Complaint containing the first eight (8) counts alluded to in the Issues statement in this Recommended Order. The date of this service was October 2, 1981. Subsequent to that time, an amendment was allowed adding the remaining counts to the Administrative Complaint. The Respondent, through actions of Miguel Rodriguez, in his effort to protect his interest in the Respondent corporation, which he had purchased, and in view of the fact that he had effective control of the licensed premises during all times pertinent to the Administrative Complaint, has requested a Subsection 120.57(1), Florida Statutes, hearing, following service of him at the licensed premises as agent in fact for the corporation. The hearing was allowed to go forward upon the request made by Rodriguez because Rodriguez's substantial interests are at stake. The requested transfer of ownership and substitution of officers filed on November 4, 1981, is unresolved pending the outcome of the proceedings herein. See Subsection 561.32(2), Florida Statutes. On July 15, 1981, in the evening hours, Beverage Officer, Louis J. Terminello, went to the licensed premises known as the Hideaway for purposes of conducting an undercover narcotics investigation. Once he had entered the premises, he spoke with one of the employees, Penny Reid, a dancer. Upon his inquiry concerning the subject of narcotics Reid told him that she would sell him methaqualone tablets for $3.00 each and lysergic acid diethylamid (LSD) for $5.00 per dosage. In order to consummate the transaction, she explained that she would need to leave the licensed premises. Around 12:15 A.M. on July 16, 1981, Reid approached Miguel Rodriguez and asked permission to leave the licensed premises. She was granted that permission and Reid and Terminello went to a residence location off the licensed premises where a purchase was made of ten (10) methaqualone tablets and four (4) units of LSD at the unit prices as have been indicated. The Beverage Officer and dancer then returned to the licensed premises around 1:30 A.M. On July 20, 1981, at around 9:45 P.M., Officer Robert Chastain entered the licensed premises and spoke with Penny Reid. This conversation ensued when Reid approached Chastain. The subject of drugs was discussed and subsequent to that time, Reid received permission to leave the licensed premises. (She was still employed by the Respondent.) On the date above, Reid and Chastain went to a residence and purchased ten (10) methaqualone tablets. The price for the tablets was $30.00. When they returned to the bar, while in the premises, Reid removed one methaqualone tablet from the napkins in which they were wrapped and gave Chastain nine (9) tablets. Terminello came back to the licensed premises on the evening of July 25, 1981, and spoke with the dancer Reid. During the conversation methaqualone was discussed and she indicated that she did not have that substance at the time. She said she might have some of the material available to her later that night. Reid left the licensed premises around 11:35 P.M. on July 25, 1981, to return around 11:55 P.M. While in the licensed premises she exchanged five (5) methaqualone tablets at $3.00 per tablet, in return for $15.00 on July 26, 1981. This transaction took place in the hall area near the rest rooms in the licensed premises and no effort was made on the part of Reid to disguise the transaction. On July .26, 1981, during his visit to the licensed premises, at approximately 1:30 A.M., Officer Terminello spoke to a man who identified himself as "Orlando" and who claimed to be a manager at the premises and the son of Miguel Rodriguez. In fact, "Orlando" was not a manager at the licensed premises nor the son of Rodriguez. During this conversation, Terminello asked "Orlando" where he could get coke, meaning the controlled substance cocaine. "Orlando" responded that he might get the cocaine on some occasion but not on that evening. "Orlando" did give Officer Terminello marijuana, also known as cannabis, a controlled substance. This item was given to Officer Terminello as he was departing the premises on July 26, 1981. Terminello returned to the licensed premises on August 14, 1981, around 9:45 P.M. On that evening, he spoke with a dancer identified to him as "Eve" who was later determined to be Eve Mae Carroll. Carroll was employed as a dancer in the licensed premises. While seated at a table near the front door, Carroll told Terminello that she would sell "quaaludes" meaning methaqualone at a price of $2.50 a tablet and a total of three (3) tablets. Terminello paid her the prescribed price and she delivered the substance methaqualone to him while seated at the table. She also indicated that she would sell him cocaine at a later time, in that she was expecting a delivery of that substance. At around 12:30 A.M. on August 15, 1981, a further discussion was held between Terminello and Carroll and while standing at the bar, Terminello purchased cocaine from Carroll. On August 15, 1981, at around 12:45 A.M., Terminello spoke with another dancer employed in the licensed premises who was identified as "Kitty" whose actual name is Kathleen Keddie, who explained to him that she had some "ludes," meaning methaqualone. She wanted $4.00 for each tablet and while seated at a table in the bar area, Terminello purchased two (2) methaqualone tablets from Kitty. On August 22, 1981, Terminello was back in the licensed premises at approximately 9:50 P.M. and was seated at the bar talking to Penny Reid who told him she was going to get some "ludes," methaqualone. This activity was to occur on her next break from dancing as an employee in the licensed premises. She left the licensed premises with a patron and returned at around 10:25P.M. and handed Terminello a paper towel containing five (5) methaqualone tablets for which he paid her $15.00. On September 9, 1981, Terminello was again at the licensed premises and was approached by Penny Reid. He asked her for "ludes or acid" meaning methaqualone or LSD, respectively. She told Terminello that she would have to go to a house to obtain these items. She then asked the manager to leave and Terminello and Reid went to the residence where methaqualone was purchased and suspected LSD as requested by Terminello. (She was still employed by the Respondent.) On September 16, 1981, while pursuing the investigation, Terminello again returned to the licensed premises and spoke with Reid who was still an employee at the premises. She told Terminello that she could go to a residence and obtain narcotics. At this time Terminello was accompanied by another Beverage Officer, Robert Chastain. After entering into a discussion on the evening in question, the two (2) officers went with Reid to an off-premises residence where methaqualone and suspected LSD were purchased. On this occasion, Reid took part of the methaqualone purchased as a "tip" and carried those methaqualone tablets back into the licensed premises when the officers and the dancer returned to the licensed premises. On September 19, 1981, Officer Terminello talked to Reid who remained employed at the licensed premises and the discussion concerned narcotics. Then they left the licensed premises and went to a residence where cocaine and methaqualone were purchased. Reid kept three (3) of the methaqualone tablets as a "tip" and she carried those methaqualone tablets back into the licensed premises when Terminello and the dancer returned to the bar. When they had returned to the licensed premises on September 19, 1981, Terminello was approached in the bar by a Michael Harrington who asked Terminello if he wanted to buy coke, meaning cocaine. Harrington then indicated that they should go out into the parking lot of the premises which they did and in the presence of another patron, Alexis Pagan, Terminello purchased a gram of cocaine. On September 25, 1981, Terminello returned to the licensed premises and spoke to an employee/dancer previously identified as Kathleen Keddie. Keddie told him that her "old man" could bring some cocaine into the premises and make some of it available to Terminello. This conversation took place around 9:45 P.M. on that evening. At approximately 12:05 A.M. on September 26, 1981, while seated at the bar, Terminello purchased approximately one (1) gram of cocaine from Keddie for $75.00. In the early morning hours of September 26, 1981, Terminello was also approached by a Julie Murphy who was employed as a cocktail waitress in the licensed premises and she told Terminello that she could sell him cocaine cheaper, at $55.00 a gram. She indicated she would serve as a go-between, intermediary, and told Terminello to leave the premises and come back later. Terminello left and returned at around 3:00 A.M., and while at the bar, purchased the cocaine from Murphy at the agreed upon price of $55.00. During the course of Terminello's investigation at the licensed premises, on a number of occasions he saw people sniffing what, from his expertise in law enforcement, appeared to be cocaine and, from the appearance and odor, using cigarettes thought to be marijuana. These activities occurred in the bathroom areas, halls and package store area. Augusto Garcia who was employed as a manager in the licensed premises was observed at times in the proximity of the activities referred to immediately above and Garcia was also observed by Officer Terminello in the men's room snorting what appeared to be cocaine. On one occasion Garcia was observed near the front door to the bar and package area where a marijuana type cigarette was being smoked in the presence of Garcia, by an employee who worked in the package store. Reid had also told Terminello that she had been fired as an employee at the licensed premises because she was so "luded" out that she fell off the stage. Nonetheless, she had been rehired. Terminello had observed Miguel Rodriguez in the licensed premises during the course of the investigation, mostly in the package store and on occasion in the bar area. Terminello did not speak with Rodriguez during the investigation. On October 2, 1981, the petitioning agency served the Notice to Show Cause/Administrative Complaint at the licensed premises. Following this service, an inspection was conducted in the licensed premises of the lockers of several dancers, for which the dancers had the keys. These dancers were employees at the licensed premises on that date. The search of the lockers and purses of the dancers led to the discovery of marijuana. The dancers in question were Annie D. Bryant, Danita Buchin and Barbara Jean O'Rourke. (Following the October 2, 1981, service of the Administrative Complaint on Miguel Rodriguez, and with Rodriguez's knowledge of the pendency of narcotics allegations being placed against the dancers, Kathleen Keddie, Annie D. Bryant and Danita Buchin, those individuals were allowed to remain as employees in the licensed premises.) During the time in question by the Administrative Complaint, Augusto Garcia acted as a manager in the licensed premises. He had been hired by Miguel Rodriguez. His normal hours of employment were 6:00 P.M. through as late as 4:30 A.M., except for Fridays and Saturdays when he worked a couple of hours. When he was on duty, Rodriguez was ordinarily at the licensed premises. Rodriguez had instructed Garcia to be cognizant of drug problems in the licensed premises and to keep the bar quiet and peaceful. In particular, Rodriguez had instructed Garcia not to allow drugs in the bar and if someone was found with drugs to throw him out. An individual identified as Hector who is a friend of Garcia's assisted in these matters. Garcia indicated the policy of management at the licensed premises was to check the person of the dancers and their bathroom and dressing area to discover narcotics. Nevertheless, testimony by Kathleen Keddie, a person implicated in these matters for narcotics violations and an employee at the bar as a dancer established the fact that she had never been searched for narcotics. Rodriguez was not told by Garcia about people selling drugs in the licensed premises, Garcia would simply "throw them out." Garcia did tell Rodriguez about people "sniffing" what he suspected to be cocaine. At the time Garcia served as a manager in the licensed premises, one Willie Rolack also was a manager in the licensed premises. Willie Rolack's duties as manager were primarily associated with the package store, in contrast to the bar, area. He would periodically go in the bar to check to see if there were fights occurring and to determine if drugs were being used. Rolack had been instructed by Rodriguez to call the Hialeah Police Department if persons who were using drugs would not depart the premises. At times, the Hialeah Police Department has assisted in removing those patrons. Additionally, some employees at the licensed premises had been dismissed for drug involvement as observed by Rolack. Miguel Rodriguez worked sixteen (16) to eighteen (18) hours in the licensed premises, mostly in the package store; however, he did have occasion to check the bar area while at the licensed premises. Rodriguez had told the dancers that he would not tolerate their involvement with drugs and he had instructed customers who were found with drugs that they should leave and not return. He had a policy of not allowing the dancers to leave the licensed premises except on occasion to go for food at nearby restaurants; however, as has been determined in the facts found, the occasions of the departures of the dancers were fairly frequent and not always for the purposes of obtaining food. Rodriguez, through his testimony, verifies a general policy of checking dancers' lockers and pocketbooks and watching their activities. The lockers as have been indicated before were controlled by the dancers themselves who had keys. Prior to July, 1981, and in particular, in June, 1981, one Alexis Pagan had worked as the bar manager and had been dismissed for drug involvement. Nonetheless, the same Alexis Pagan had been observed in the licensed premises during the times set forth in the administrative charges, to include the instance mentioned before.
Findings Of Fact Willie Norman, Jr. d/b/a Paradise Cafe holds 2-COP beverage license and was so licensed at all times here relevant. In August, 1977 Willie Norman was in the hospital where he had a gall bladder operation. During this time on August 7 and 14, Gainesville police officers observed the Paradise Cafe open after hours on consecutive Sunday nights. Gainesville City Ordinance No. 2082 (Exhibit 9) prohibits the sale of alcoholic beverages on Sundays after 11 p.m. in the city of Gainesville. On 7 August 1977 the police found the establishment open at approximately 3 a.m. with 30 to 40 patrons in the premises and Ike Norman apparently in charge. The following Sunday night on August 14 the police raided the premises at 11:30 p.m. on Sunday night and found 40 to 50 patrons in the establishment with Ike behind the bar and Manuel Norman serving beer. When Manuel Norman was arrested, Ike stated that he (Ike) was running the business because the licensee was sick and that if anyone was to be arrested it should be him. After receiving the police reports, the premises were inspected by beverage agents on 30 August 1977 and Ike Norman told the agent that he was running the business for his son, the licensee, who was home sick. On 7 October 1978 two beverage agents entered the Paradise Cafe on a routine inspection, and, while looking in the men's room, one of the agents observed a brown paper bag, the contents of which he found suspicious. A subsequent analysis of the contents disclosed that the bag contained 14 grams of cannabis. No evidence was presented that licensee or any employee of licensee knew or should have known that the cannabis was on the premises. Willie Norman, Jr., Ike Norman and Manuel Lee Norman are brothers. Ike was the licensee of the cafe several years ago when it was named the Red Top Cafe. In 1973, Ike was convicted of possession of alcoholic beverages for sale without a license. He sold the business to his brother, Willie, who took over the lease and first became licensed in 1975-76. According to Willie's testimony, while he was in the hospital during the month of August, 1977, he left Manuel Norman in charge. He was aware that Ike could not legally be employed at the business because of Ike's criminal record. Willie expressed no knowledge of any of the other charges preferred against his license.
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 dismissing the charges against respondent, R. Hughes, Inc. d/b/a The Odyssey, contained in the Notice To Show Cause in this case. RECOMMENDED this 6th day of December, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9673 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1984.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent's license number 42-55 be revoked. Respectfully submitted and entered this 27th day of February, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. C.A. Nuzum Director Division of Beverage 210 Johns Building Tallahassee, Florida Mr. Charles F. Tunnicliff Department of Business Regulation 725 S. Bronough Street Room 210, Johns Building Tallahassee, Florida 32304 Mr. White Route 2, Box 13B Marianna, Florida 32446
Findings Of Fact Eugene Willner is the corporate officer and sole stockholder of G.W. Liquors of Broward, Inc., d/b/a Case Deliveries, and G.W. Liquors of Collier, Inc., d/b/a Discounted by the Case. On August 27, 1980, Eugene Willner entered a plea of guilty in the United States District Court for the Eastern District of Louisiana to a violation of Title 21, United States Code s. 963, Conspiracy to Import Marijuana. Based upon his plea he was convicted and sentenced to two years of imprisonment, and a fine of $5000 was imposed. Willner had never before been convicted of any offense, nor has he been convicted of any offense subsequent to the 1980 conviction. Other than the 1980 conviction, Willner has a reputation of good moral character in his community. On July 8, 1983 Willner received a Certificate of Restoration of Civil Rights which provided, in relevant part, that he ... is restored to all civil rights in this State, except the specific authority to possess or own a firearm, lost by reason of any and all felonies this person may have been convicted of in another state, federal, or military court . In early 1987, the Petitioner corporate entities controlled by Willner applied for new quota alcoholic beverage licenses. Those applications disclosed Willner's 1980 conviction and his 1983 restoration of civil rights. On October 28, 1987, Respondent denied the applications. Of the 8500 licensed alcoholic beverage premises in Dade and Monroe Counties, only approximately 20 to 25 (or approximately one-quarter of one percent) are experiencing a problem with narcotics.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered approving Petitioners' applications for alcoholic beverage licenses. DONE and RECOMMENDED this 28th day of June, 1988, at Tallahassee, Florida. LINDA M. RIGOT 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 28th day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-5565 & 87-5566 Petitioners' proposed findings of fact numbered 1-5 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2-4 have been adopted either verbatim or in substance in this Recommended Order. Respondent's unnumbered proposed finding of fact has been rejected as being irrelevant to the issues under consideration herein for the reasons set forth in this Recommended Order. Additionally, that proposed finding of fact contains phrases which are not supported by the evidence in this cause. Respondent's proposed finding of fact numbered 5 has been rejected as not constituting a finding of fact but rather as constituting background information forming the basis for Respondent's proposed agency action in this cause. Respondent's proposed findings of fact numbered 7 and 6, respectively, have been rejected as not constituting findings of fact but rather as constituting argument of counsel and recitation of the testimony. COPIES FURNISHED: C. I. Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1000 Bruce Rogow, Esquire 2097 S.W. 27th Terrace Fort Lauderdale, Florida 33312 W. Douglas Moody, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Sy Chadroff, Esquire 2700 S.W. 37th Avenue Miami, Florida 33133 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
