The Issue The parties stipulated as to the identification of all drugs seized and purchased by the investigators. The issues presented in this case are as follows: Whether the individual counts as set forth in the Notice to Show Cause took place as alleged; Whether Jerry Alden ("Alden") was an employee, agent or servant of the Respondent; Whether Respondent was culpably negligent in the supervision of the licensed premises. Both parties have submitted posthearing proposed findings of fact. A ruling has been made on each proposed findings of fact in the Appendix to this Recommended Order.
Findings Of Fact At all times pertinent to the allegations in the Notice to Show Cause, the Respondent, Michael George Shlepr, d/b/a Eau Gallie Inn, was the holder of a valid Alcoholic Beverage License #15-1912, series 4-COP, issued by the Petitioner to the Respondent for the Eau Gallie Inn located at 1841 Avocado Avenue, Melbourne, Brevard County, Florida. On January 22, 1986, Detective Bruce Triolo of the Melbourne Police Department ("MPD") entered the licensed premises as part of an undercover investigation of narcotics trafficking. Triolo was accompanied by a confidential informant who frequented the licensed premises and was well known by the patrons and employees of the licensed premises. During said evening, Triolo was approached by an individual known as Jerry Alden (and also referred to as "Jerry Holden" during the hearing), who asked Triolo if he wanted to buy marijuana. Triolo indicated he desired to purchase marijuana and thereafter met Alden in the parking lot of the licensed premises where Triolo purchased two bags of marijuana from Alden. On January 23, 1986, Triolo again entered the licensed premises as part of an undercover investigation. Triolo and Alden negotiated the sale of marijuana inside the licensed premises and Triolo met Alden in the picnic area adjacent to the building (see diagram in Petitioner's Exhibit 1) where Triolo purchased marijuana from Alden. This picnic area was included in the diagram of the licensed premises and made a part thereof at the suggestion of an agency employee after the undercover investigation of the licensed premises had begun. This area is irregularly shaped and has at least one entrance to it which cannot be observed from inside the licensed premises. On January 24, 1986, Triolo again entered the licensed premises as part of an undercover investigation. Triolo discussed purchasing marijuana from Alden. On this occasion, Alden asked the bartender, "Lynn," to hand him his jacket. Lynn brought Alden his jacket from a small office area behind the bar and gave it to Alden. Alden took a bag of marijuana from the jacket and delivered it to Triolo while they were sitting at the bar of the licensed premises. On January 28, 1986, Triolo entered the licensed premises as part of an undercover investigation and spoke with the bartender identified as "Bruce." Triolo asked Bruce where he could find Alden and was advised that Alden "was around." Triolo asked Bruce about purchasing marijuana and Bruce offered to sell Triolo one marijuana cigarette. Bruce took $1.50 from Triolo's change that was on the bar as payment for the cigarette. On January 31, 1986, Triolo entered the licensed premises as part of an undercover investigation. Triolo negotiated with Alden in the licensed premises the purchase of marijuana, which was delivered and paid for in the men's bathroom of the licensed premises by Alden. At that time, Alden asked Triolo if he was interested in purchasing any cocaine. Triolo said that he was and Alden left and returned in approximately 15 minutes. At that time, Alden met Triolo by the picnic table in the picnic area. Alden showed Triolo several cocaine rocks and sold Triolo one for $20.00. During the time that this transaction was taking place, the bartender, "Shawn," was standing at the back door of the licensed premises observing what was taking place in the picnic area. On February 25, 1986, Triolo entered the licensed premises with Agent Richard White of the Division of Alcoholic Beverages and Tobacco as part of an undercover investigation. Triolo purchased a bag of marijuana from Alden while sitting at the bar. Shawn, who was the bartender, handed Alden the bag of marijuana from behind the bar and Alden delivered the bag to Triolo. On February 26, 1986, Triolo entered the licensed premises as part of an undercover investigation. While there, he discussed the purchase of marijuana from "Marie," another patron. Marie delivered the marijuana to Triolo inside the licensed premises and Triolo passed the marijuana to White in the open while both men were sitting at the bar in the licensed premises. As part of an undercover investigation, on March 7, 1986, Triolo entered the licensed premises where he negotiated the purchase of a bag of marijuana with Alden. Alden only had one bag and a white female patron had also indicated she wanted to purchase a bag of marijuana. Alden met with the white female and Triolo at the picnic table in the picnic area and split the bag of marijuana between the white female and Triolo. On the same night, a patron, Brian Riordon, sold and delivered cocaine to Triolo in the parking lot of the licensed premises. On March 9, 1986, Triolo and White attended a party in the licensed premises for which they had purchased tickets as part of the continuing investigation. On this occasion, which was on a Sunday, Shlepr was present and served beer to Triolo and White at 11:57 a.m., contrary to Melbourne City Ordinance that prohibits the sale of alcoholic beverages prior to 1:00 p.m. on Sundays. On March 13, 1986, White entered the licensed premises as part of an undercover investigation with Triolo. White engaged in wagering on a game of liar's poker with another patron, "Tim," at the bar in front of the bartender. On March 14, 1986, Triolo entered the licensed premises and negotiated the purchase of marijuana with Alden. Triolo gave Alden $60.00; however, Alden returned and said he could not get the marijuana and gave Triolo his money back. The negotiations for the purchase took place in the licensed premises. On March 15, 1986, White entered the licensed premises with Triolo as part of their investigation. White began playing pool for money with Alden and another patron. The bartender, Lynn, was present and observed their gambling. On March 19, 1986, Triolo entered the licensed premises as part of an undercover investigation and discussed with Alden purchasing marijuana. Alden advised Triolo that "the marijuana was on its way over." In a short while, a white male patron, Dennis Thorp, arrived and delivered the marijuana to Alden, who in turn delivered it to Triolo. Subsequently, on March 19, 1986, Alden sold a stolen outboard motor to Triolo at an apartment in the vicinity of the licensed premises. The negotiations for the purchase of the stolen outboard motor took place on the licensed premises. On March 20, 1986, Triolo entered the licensed premises with White as part of an undercover investigation. Alden, with Dennis Thorp, sold and delivered marijuana to Triolo on the licensed premises. White engaged in a pool game with Alden for money on the same evening. As part of the continuing investigation, on March 26, 1986, Triolo entered the licensed premises where he discussed the purchase of marijuana with Alden. He subsequently drove Alden to a house in Melbourne which Alden entered and returned with several bags of marijuana. Alden explained that he had more orders for marijuana than he had bags of marijuana. As a result, the potential purchasers, to include Triolo, met with Alden at the picnic table in the picnic area at the Eau Gallie Inn where the bags were split. Triolo received part of a bag in return for driving Alden to pick up the drug. On April 1, 1986, Triolo entered the licensed premises as part of the ongoing investigation and discussed the purchase of marijuana with Alden. Alden sold and delivered marijuana to Triolo on the licensed premises. Subsequently, Alden approached Triolo with another white male, identified as "Ted" and discussed with Triolo the purchase of cocaine. Triolo gave money to Ted, and Ted and Shawn, a bartender at the Eau Gallie Inn, left the licensed premises together and returned with cocaine. Ted delivered cocaine to Triolo on the licensed premises. No evidence was received that Shawn was on duty the night in question. On April 3, 1986, Triolo entered the licensed premises as part of the continuing investigation. On this occasion he negotiated the purchase of marijuana from Alden and Thorp and cocaine from Alden and Ted on the premises. The cocaine was delivered in the picnic area. Evidence was not clear on where the marijuana was delivered. On April 4, 1986, Triolo entered the licensed premises as part of the continuing investigation. A patron, Mark Harrold, injected himself with drugs in the bathroom of the licensed premises while Detective Triolo guarded the door. On April 5, 1986, Triolo and White entered the licensed premises as part of the continuing investigation and spoke with Alden. A purchase of marijuana was negotiated and money was delivered by Triolo to Alden; however, when Alden returned with the marijuana, he had less marijuana than potential purchasers. Alden went into the kitchen area behind the bar where he split a bag and delivered half to Bruce, the bartender on duty, and half to Triolo. Alden approached White on the premises about purchasing a Colt revolver which Alden represented had been stolen. On April 9, 1986, Triolo entered the licensed premises as part of the continuing investigation. On this occasion, Alden delivered to Agent White in Triolo's presence, cocaine which White held up to the light and examined while standing at the pool table in the licensed premises. On said night, no marijuana was available for purchase; however, a number of people were in the picnic area smoking marijuana and free-basing cocaine. Also on April 9, 1986, Alden approached Triolo about purchasing some amphetamines. Alden left the premises and when he returned, sold to Triolo a substance represented to be amphetamines. However, upon analysis it was determined to be a caffeine derivative. Alden collaborated in this transaction with a patron known as "Doc Holliday." On the night of April 11/12, 1986, Agent White entered the licensed premises as part of the investigation. He discussed purchase of marijuana with Alden, who left the premises and returned after midnight. Alden delivered marijuana to White in the men's room. Shawn the bartender was in the toilet, came out, and saw Alden and White concluding the purchase of the drugs. Shawn asked if Alden would have a bag left which he could purchase. On April 15, 1986, Agent White brought up marijuana with the licensee, Shlepr, who was tending bar. Shlepr told White to put the marijuana back in his pocket; that he did not want to see it in the licensed premises. On April 16, 1986, Alden sold and delivered cocaine to Triolo on the licensed premises. Conflicting testimony was received concerning the status of Alden as an employee. The records of the licensed premises do not reflect Alden was an employee; however, the records of at least one other employee were also demonstrated to be incomplete or inaccurate. The licensee, Shlepr, testified that Alden was not an employee but was a regular patron who voluntarily would do helpful things around the licensed premises on occasion. Shlepr gave Alden free drinks on occasion in recognition of Alden's patronage and help. Triolo and White observed Alden on occasion taking beer from the stock room to the bar, clearing tables, and in one instance going next door to get Shlepr change. Triolo and White also observed that Alden had easy access to the area behind the bar, the small office behind the bar, the telephone, and cash register. Testimony was also received that during a portion of the investigation, Alden was dating one of the regular barmaids. Another of the regular bartenders testified Alden was not an employee. Based upon the most credible evidence, it is found Alden was not an employee; however, Alden was clearly permitted too much freedom in the licensed premises. The licensee, Shlepr, worked full-time on the evening shift at a local business in Melbourne at all times relevant to this complaint. He was on the premises from noon until the commencement of his shift and returned to the licensed premises after he got off work to close the licensed premises. He did not have a manager on the premises and the only employee present when Shlepr was not there was the bartender. The bartenders were given great freedom; one going so far as giving away drinks. The only two allegations which Shlepr could have observed or participated in were when Shlepr served the investigators beer on Sunday, March 9, and when White showed Shlepr marijuana on April 15. There is no allegation Shlepr had knowledge of the other incidents. Gary Michael Gordon was a substitute bartender during the period of the investigation at the Eau Gallie Inn, during which time and unto the present he was the Respondent's roommate. The identification of all the drugs mentioned above is accurate. There have been no previous disciplinary actions against this licensee. No evidence was introduced in support of counts 24 and 32. Respondent had no direct knowledge of the drug trafficking and gambling.
Recommendation Considering the fact that the violations of Sections 561.29(1)(a) and (c), Florida Statutes, arise primarily from acts of omission and not commission, and that only very minor and technical violations were attributable to the Respondent personally, it is recommended that the Respondent's license be suspended for six months; that he be fined $1,000; and that his presence or the presence of a responsible manager on the premises be required as a condition for continued operation. DONE AND ORDERED this 28th day of May 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 28th day of May 1986. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-1343 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties. Both Petitioner and Respondent filed proposed findings of fact in this case. These proposed findings were read, considered, and adopted unless the proposed finding was rejected for the reason stated. Rulings on Proposed Findings of Fact Submitted by Petitioner Adopted in paragraph 1. Adopted in paragraph 2. (NOTE: Petitioner's Proposed Findings of Fact contains two paragraphs numbered "3"; the paragraphs are herein referred to as Page 2, Paragraph 3, or Page 3, Paragraph 3. All other paragraphs in Petitioner's findings are referred to by their indicated number. Page 2, Paragraph 3 Adopted in part; rejected in part and rewritten in paragraph 25. Page 3, Paragraph 3 Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 8. Adopted in paragraph 9. Adopted in paragraph 10. Adopted in paragraph 11. Adopted in paragraph 12. Adopted in paragraph 13. Adopted in paragraph 14. Adopted in paragraph 15. Adopted in paragraph 16. Adopted in paragraph 17. Adopted in paragraph 18. Adopted in paragraph 19. Adopted in paragraph 20. Rejected; contrary to evidence. Adopted in paragraph 21. Adopted in paragraph 22. Adopted in paragraph 24. While the evidence taken as a whole might lead to this conclusory fact, this proposal is rejected. The facts surrounding the individual incidents are clear enough to permit the hearing officer to conclude that the Respondent knew or should have known about the conduct and was negligent in his supervision. Rulings on Proposed Findings of Fact Submitted by Respondent Respondent's repeated proposal that there was no evidence that Respondent had knowledge of the incidents is modified and adopted in paragraphs 29 and 30. Adopted. Rejected - argument. Reject first and last sentence as argument or summarization. Adopts second sentence in paragraph 25. Rejected; contrary to evidence. Description and nature of picnic area is addressed in paragraph 3. Adopted in paragraphs 2 and 3. Adopted in paragraph 4. Adopted in paragraph 5. 9&10. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 8. Adopted in paragraph 9. Adopted in paragraph 10. Adopted in paragraph 11. Adopted in paragraphs 12 and 14. Adopted in paragraph 14. Adopted in paragraphs 15, 16, 17, 18 and 20. Adopted in part in paragraph 29. Rejected in part as contrary to the evidence. Adopted in part in paragraph 20. Adopted in paragraphs 21, 22 and 24. Rejected as to Dowd and Taylor because they worked earlier shifts during the day when a different group of patrons were at the bar. Rejected as to Gary Gordon because of credibility. Rejected as contrary to evidence. Rejected as cumulative summary of specific findings relating to each charge. First sentence: Similar findings were made in paragraph 23; the remainder is rejected based upon lack of credibility. Adopted in paragraph 28. COPIES FURNISHED: Mr. Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927 Mr. James Kearny Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Bell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 David W. Dyer, Esquire Post Office Box 3648 Indiatlantic, Florida 32903
The Issue The issues presented for resolution in this proceeding concern whether the Respondent's alcoholic beverage licensure should be subjected to disciplinary sanctions because of alleged misconduct involving the sale and use of controlled substances on a licensed premises, more specifically delineated in the Notice to Show Cause filed in this proceeding by Petitioner.
Findings Of Fact The Respondent, JIMMIE WILLIAMS, owns the club or tavern known as the "Copa Cabana", doing business at 2901 North Haynes Street, Pensacola, Florida. That establishment holds a Series 2-COP alcoholic beverage license number 27- 00239, authorizing the sale of beer and wine on the premises. The Respondent is the sole owner of the Copa Cabana. Burnett Patterson, at times pertinent hereto, during September 1988 through February 1989, was a patrol deputy with the Okaloosa County Sheriff's Department. While a deputy with that Department, he engaged in special drug investigations. During the course of this employment, he became involved in numerous undercover operations designed to curb traffic and use of controlled substances. He thus became familiar with the appearance, properties and paraphernalia associated with crack cocaine and marijuana. On September 2, 1988, he met with Law Enforcement Investigator, Paul Blackmon, of the DABT. Investigator Blackmon asked Deputy Patterson to assist in a drug investigation of the Copa Cabana. At approximately 8:00 p.m. on that date, Deputy Patterson entered the Copa Cabana licensed premises in an undercover capacity. While in the licensed premises, inside the Copa Cabana, he observed patrons of that establishment openly smoking marijuana and crack cocaine. He observed one black male patron walking around inside the licensed premises holding a piece of crack cocaine visibly in his front teeth in order to advertise it for sale. This activity was done in the presence of the licensee/Respondent, Jimmie Williams. The undercover agent further observed numerous persons selling marijuana and cocaine inside, as well as outside the licensed premises. These persons made no attempt to conceal their illegal actions. It has not been demonstrated who owned or controlled the grounds immediately outside the door of the licensed premises. On September 16, 1988, at approximately 8:15 p.m., Deputy Patterson again entered the licensed premised in an undercover capacity. Upon entering the licensed premises, he observed 15 to 20 patrons inside and observed the Respondent working at the bar. Deputy Patterson went to the restroom inside the Copa Cabana and observed two black males cutting crack cocaine into small pieces, mixing them with marijuana, and rolling the resulting material into cigarettes or "joints" for smoking. Deputy Patterson purchased one piece of crack cocaine for $20.00 from a patron known as William Barker while inside the restroom. While inside the licensed premises, Deputy Patterson observed patrons openly smoking crack cocaine and marijuana. He was approached by other patrons, who asked if he wanted to purchase controlled substances. The substance purchased was analyzed and tested positive for cocaine. On September 19, 1988, at approximately 7:40 p.m., Deputy Patterson again entered the licensed premises in an undercover capacity. Upon entering, he made contact with patron, Jerry Green, who was accompanied by a patron known as "Killer." Deputy Patterson purchased one "baggie" of marijuana for $10.00 from "Killer." This transaction, along with the open smoking of marijuana, took place in the presence of the Respondent. Deputy Patterson also observed numerous controlled substance transactions taking place outside and near the entrance of the licensed premises. The substance he purchased was analyzed and proved to be marijuana. On September 24, 1988, at approximately 3:30 p.m., Deputy Patterson again entered the license's premises. He observed several patrons entering and exiting the restroom area. He entered the restroom and made contact with patron, John Butler. John Butler asked Deputy Patterson what he was looking for, and the Deputy replied "crack." Deputy Patterson was sold one piece of crack cocaine by John Butler and another unknown patron for $20.00. Deputy Patterson observed several patrons entering the restroom and purchasing crack cocaine. Jimmie Williams was inside the licensed premises during the time Deputy Patterson was present and making these observations. Deputy Patterson further observed several narcotic transactions outside the front entrance of the licensed premised. The substance purchased by Deputy Patterson was analyzed and tested as positive for the presence of cocaine. On October 8, 1988, at approximately 4:10 p.m., Deputy Patterson again entered the licensed premises in an undercover capacity. Prior to entering, he was asked by several patrons loitering near the entrance of the Copa Cabana if he wanted to purchase controlled substances. Once inside the licensed premises, he entered the restroom, where he made contact with patron, Calvin Black. Deputy Patterson purchased one piece of crack cocaine from Calvin Black for $20.00. Deputy Patterson then departed the restroom and observed patrons openly smoking marijuana while playing pool. Deputy Patterson contacted patron, Terry Boutwell, by the pool table. Terry Boutwell sold Deputy Patterson one baggie of marijuana for $10.00 at that location. Upon leaving the building, Deputy Patterson was again approached by persons outside the entrance to the Copa Cabana and asked if he wanted to purchase controlled substances. During all of the aforementioned events, including the sale of marijuana and the smoking of marijuana in the vicinity of the pool table, the Respondent was inside the licensed premises. Both the substance purchased from Calvin Black and that purchased from' Terry Boutwell were subsequently analyzed and proved to be controlled substances. On January 28, 1989, at approximately 5:00 p.m, a confidential informant, Alonzo Blackman, was designated to conduct a controlled substance purchase inside the licensed premises from the licensee, Jimmie Williams. The confidential informant was given specific instructions to buy only from Williams. Prior to departing the Sheriff's Department, he was thoroughly searched. It was determined that he had no controlled substances or money on his person. He was provided with a concealed, wireless voice transmitter. He was also given $50.00 of the Sheriff's Department's money for the purpose of purchasing crack cocaine. Subsequently, the confidential informant departed the Sheriff's Department with Deputy Gwen Salter. The pair was followed and traced by Escambia County Sheriff's Deputy Mark Shaeffer. Deputy Shaeffer was equipped with a radio receiver and monitored transmissions emitted from Alonzo Blackman's transmitter. Deputy Shaeffer observed Alonzo Blackman park behind the Copa Cabana to the rear of the building on a back street and depart Deputy Salter's vehicle. He observed Alonzo Blackman walk through the wooded area behind the Copa Cabana and disappear around the side of the building, moving toward the front of the Copa Cabana building. After Alonzo Blackman was out of sight around the corner of the Copa Cabana building, Deputy Shaeffer could hear normal outdoor sounds, as well as Alonzo Blackman's footsteps through the transmitter. Shortly thereafter, he heard the sound of a juke box playing and loud voices consistent with the noises one would expect when a person entered a bar. Within two or three minutes thereafter, Deputy Schaeffer observed Alonzo Blackman come back in sight around the corner of the licensed premises and enter Deputy Salter's vehicle. Deputy Schaeffer followed the two back to the Sheriff's Department, keeping Alonzo Blackman in visual sight the entire time. When Alonzo Blackman and Deputy Salter returned to the Sheriff's Department, Alonzo Blackman presented Deputy Schaeffer with a slab of rock cocaine and no longer had the $50.00 given to him by the Sheriff's Department. Subsequently, the substance purchased was analyzed and tested positive for the presence of cocaine. The Petitioner adduced a hearsay statement from Deputy Schaeffer to the effect that Alonzo Blackman had told him that he had purchased the rock cocaine in question from the Respondent. That statement was not admitted into evidence since it was not corroborative hearsay for the purposes of Section 120.58, Florida Statutes. The hearsay statement concerning the alleged purchase from the Respondent is not corroborative of the testimony concerning the other independent events in question in this proceeding involving the sale and use of controlled substances on the licensed premises by others. The only testimony or evidence directly concerning the alleged purchase of cocaine from the Respondent was that related by confidential informant, Blackman, to Deputy Schaeffer. The only other evidence purporting to show that the Respondent sold a slab of rock cocaine was the testimony by Deputy Schaeffer revealing what he saw and heard over his radio receiver. All he saw was Alonzo Blackman passing around the side of the building aid later returning around the back corner of the building. He heard his footsteps as he passed around and presumably entered the building, judging from the change in sounds received. There was no evidence that any voices or other noises transmitted to Deputy Schaeffer's listening station consisted of the actual drug transaction and specifically that any of the voices or sounds he might have heard were those of the Respondent in conducting that transaction. Since Deputy Schaeffer's testimony, itself, does not implicate the Respondent in selling the drug, the hearsay statement of the confidential informant, Alonzo Blackman, who could not be located at the time of the hearing, cannot be admissible corroborative hearsay. Thus, it was not established that on this occasion, the slab of rock cocaine was actually purchased from the Respondent. On February 8, 1989, at approximately 5:00 p.m., Alonzo Blackman was again designated to conduct a controlled substance purchase inside the Copa Cabana from the Respondent. He was given the same specific instructions, and Deputy Schaeffer made the same visual and auditory observations as he had with regard to the alleged transaction of January 28, 989. The same factual findings apply, and are made, with regard to this transaction as were made above concerning the January 28, 1989 transaction. The alleged fact that the purchase was made from Jimmie Williams was again predicated on the hearsay statement of Blackman, which was not corroborative and was uncorroborated. It cannot be used to support a finding that the Respondent sold the cocaine in question. On February 7, 1989, at approximately 8:00 p.m., Escambia County Investigators, Tyron Wicks, Melvin Possey and J. Johnson, conducted a "routine drug sweep" of the Copa Cabana. This type of operation was a routine matter for Investigator Wicks in the six months prior to February 7, 1989. Upon entering the licensed premises, Investigator Wicks went directly to the men's restroom where he observed four patrons having a conversation while looking into a paper bag. Investigator Wicks seized the paper bag which contained nine plastic baggies of marijuana ready for distribution and charged him with possession of 20 grams of marijuana with the intent to distribute. Investigator Wicks is familiar with the smell of marijuana smoke; and during "drug sweeps" conducted in the licensed premises, estimated to be 20 or 30 such operations for the previous six months, he smelled such smoke in the licensed premises on a number of occasions. On these occasions, he had also found marijuana and crack and razor blades, as well as pipes and cans used for smoking crack, on the floor of the licensed premises. He has seen people buy drugs at the Copa Cabana while he has been present there with the Sheriff's Department Narcotics Unit during the years 1988 and 1989. Sergeant Bobby Jackson of the Narcotics Division of the Escambia County Sheriff's Department has bean a law enforcement officer for approximately 14 years. He is familiar with the smell and appearance of marijuana and crack cocaine. He has been involved in 20 to 30 raids at the licensed premises. On at least 15 occasions, officers in his party have found controlled substances. The Respondent was always present when these raids took place. On many of the raids, Sergeant Jackson smelled the odor of marijuana smoke in the licensed premises. He is certain that the Respondent was present on these occasions. During these raids, he has observed marijuana cigarette butts on the floor of the licensed premises and has often found people inside bagging marijuana. Prior to the suspension of the beverage license on February 10, 1989, Sergeant Jackson received quite a few complaints about the licensed premises; and each time he visited it, he would observe a great number of people standing around inside and outside the licensed premises. It has been quite different since the suspension of the license and the shutdown of operations at the Copa Cabana. Sergeant Jackson has received very few complaints since February 10, 1989. Sergeant Jackson, however, never received any complaints from the Respondent about drug use in the establishment. John Green is a black male, whose mother lives approximately a block from the licensed premises. He has been a friend of the Respondent for approximately 15 years. During the period of January and February of 1989, he patronized the licensed premises six days a week, every week. He would go there after work and stay until approximately 9:00 p.m. He states that he always saw the Respondent behind the bar. John Green stated that the bar was a self- service bar where patrons could get beer out of the cooler in front of the bar and pay for it at the counter. He maintained that he had never seen Deputy Patterson and that, in his opinion, marijuana smoke smells just like Kool cigarette smoke. He drinks beer every night, including the times when he patronized the Copa Cabana. He testified under oath that he had never seen anyone use drugs in the licensed premises and that on one occasion, however, he had thrown someone out of the licensed premises for using drugs. Dorothy Mouton lives approximately six miles from the Copa Cabana and works at Washington Junior High School in an administrative capacity. She knows the Respondent, who also works there as a coach. She, in the past, has stopped at the Copa Cabana to eat a snack and converse the During the period of August of 1988 to February of 1989, she went to the Copa Cabana every week. According to Ms. Mouton, the Respondent had a stool behind the bar and would get beer from the cooler for patrons who requested beer. She claimed that she was able, by her experience, to identify marijuana smoke and crack cocaine. She maintained that she never saw any drug of either sort in the licensed premises She also testified that it was her habit to depart the licensed premises every day between 6:00 p.m. and 6:30 p.m. Chris Dortch is a 27 year old black male who has known the Respondent for a long period of time. He helped the Respondent operate the Copa Cabana when he first established it. He lives approximately four blocks from the Copa Cabana. He goes to the licensed premises every day and sometimes stays until it closes. He has always observed the Respondent staying behind the bar counter while he is on duty. This witness also claimed under oath that he had never seen any cocaine or marijuana smoked in the licensed premises and had never smelled any marijuana smoke within the licensed premises. He testified that he saw police officers in the licensed premises at least ten times, but never observed any arrests. Elizabeth Freeman lives around the corner from the licensed premises and has lived there approximately four years. During the period of September of 1988 to February 10, 1989, she went to the club every day for about an hour where she would talk to Williams and play video games. She claimed that she observed Williams, on occasion, move from behind the counter into the public area of the tavern. She also testified that she has never seen any indications of drug use on the premises. Shirley Washington was in the habit of going to the club during the period of August of 1988 to February of 1989 at approximately 4:30 p.m. and generally would stay until closing, usually around 9:00 p.m. She was a member of a social group called "The Copa Cabana Queens." It was her habit, during this period of time, to drink four to five six-packs of beer each day. She is familiar with the smell of crack cocaine smoke and marijuana smoke. She testified that she had never observed any marijuana or crack cocaine within the licensed premises. She has been a friend of the Respondent for approximately 25 years. The Respondent is an instructor and coach with the Escambia County School Board. He has owned the Copa Cabana for 15 years. It is a recreation center, lounge, notion store and meeting place. He also has live entertainment and occasionally, a fashion show. His license authorizes him to sell and serve beer and wine. He is the only employee, but Ms. Washington minds the bar for him when he is temporarily away from it (in the restroom, etc.). He testified that he never observed Deputy Patterson until the day of the hearing. He testified that no drugs had ever been in the licensed premises and that he had never dealt in drugs. The testimony of Deputies Patterson and Schaeffer, Investigator Wicks, Sergeant Jackson, and Law Enforcement Investigator Ralph Kelly, to the effect that controlled substances were openly and notoriously used and sold on the premises in question, conflicts in a general sense with the testimony of Respondent's witnesses to the effect that they never saw any marijuana or crack cocaine on the premises or smelled any and so forth. This conflict in the testimony of the witnesses of the Petitioner and Respondent must be resolved by determining which are more credible. Determining the credibility of witnesses is an important and exclusive task of the fact finder Guidelines for resolving credibility issues are provided in Volume 24, Florida Jurisprudence 2nd, Sections 688-696, and grand jury instruction 2.04 on page 779 of West's Florida Criminal Laws and Rules (1989), which sets forth areas to consider in determining whether a witness is credible. Those areas include: whether the witness had an opportunity to observe and know the things about which he testifies' whether his memory seemed accurate; whether he was straight forward in his answers; whether he was interested in the result of the case at issue; whether it is consistent with other testimony and evidence adduced; and whether he has, at some different time, made an inconsistent statement from the testimony given before the court. Firstly, concerning the testimony of John Green, it can be seen that he testified to having patronized the establishment during the period of January and February of 1989 and purported never to have seen Deputy Patterson. This is not surprising since there was no testimony by the Deputy that he was in the licensed premises during those two months. Therefore, John Green would have had no opportunity to observe Deputy Patterson at the time he frequented the licensed the premises. John Green also testified that he drank beer in the licensed premises every night and, thus, could quite likely have suffered a diminution of his powers of observation as a result of drinking beer. Dorothy Mouton maintained that she went to the Copa Cabana every week during the period of August of 1988 to February of 1989. She stated that she went there between the time she got off work until 6:00 p.m. or 6:30 p.m. Her time in the licensed premises was, therefore, very limited; and everything alleged by the Petitioner's witnesses could easily have occurred without her being on the licensed premises to observe the alleged violations. Elizabeth Freeman stated that she went to the Copa Cabana for about an hour each day during the time alleged in the Notice to Show Cause. If her testimony that she saw no drugs used on the licensed premises is accepted as true that still does not resolve the problem that the amount of time that she spent on the licensed premises was quite limited. The violations testified to by the Petitioner's witnesses could have occurred during her absence from the licensed premises. Shirley Washington claimed that she was at the Copa Cabana every day from 4:30 p.m. to approximately 9:00 p.m. during the time pertinent to the charges in the Notice to Show Cause. She also testified that she would drink four to five six-packs of beer every day. That could easily diminish her powers of observation and, no doubt, did. None of the witnesses for the Respondent could describe the events of any particular day alleged in the Notice to Show Cause. Their testimony was rather of a very general nature and not date or time-specific. On the other hand, the Petitioner's witnesses were trained law enforcement officers and observers, who kept meticulous records of their participation in the events in question and who gave detailed testimony as to the time, date and circumstances of each event that took place on the licensed premises and later became the subject of the charges in the Notice to Show Cause. There is no evidence that any of the law enforcement officers were drinking or otherwise had impaired powers of observation during the pertinent times. The Respondent's witnesses' memories and resulting testimonies appeared very general at best. Concerning the issue of whether the witnesses might have some interest in how the case should be resolved, it should be pointed out that the Respondent's witnesses were all old friends of the Respondent. John Green has been a friend of the Respondent for 15 years. Dorothy Mouton is a co-worker of the Respondent's at Washington Junior High School and must be counted as a friend of the Respondent. Chris Dortch has apparently known the Respondent since he was a small child. Elizabeth Freeman has been his friend and customer for the past four years. Shirley Washington has been the Respondent's friend for 25 years. All of these people are not only friends of the Respondent, but apparently considered the Copa Cabana a sort of favorite resort or meeting place away from home and clearly wanted to continue the benefit of the close friendly relationship. The Petitioner's witnesses, on the other hand, were professional police officers, none of whom had any relationship with the Respondent or the Copa Cabana. There was no evidence that any of the officers were somehow targeting the Respondent for special prosecution efforts. It rather appears that the events which came to light, as described in their testimony and the Notice to Show Cause, were discovered through routine police operations. Further, Deputy Patterson testified concerning the issue of whether the Respondent exhibited proper diligence in supervising and maintaining surveillance over the licensed premises. He stated that when the Respondent sold' a beer, he would do so by receiving the money for the beer and then moving outside of the bar to the cooler, kept in the room near the bar, to obtain the beer and give it to the customer. The Respondent's witnesses, however, addressed this matter with differing testimony. John Green, stated that customers would get the beer themselves from the cooler and then go to the counter to pay for it. Dorothy Mouton stated that the Respondent would get the beer from the cooler himself, which required him to walk outside the area behind the bar into the area of the room, in which the bar was located, to the cooler, which would allow him to view the rear room and restroom area of the licensed premises. Chris Dortch testified that the Respondent stayed behind the counter during beer sales. Elizabeth Freeman stated that she had observed the Respondent move from behind the counter into the open area of the licensed premises in the act of getting a beer for a customer. Thus, the Respondent's witnesses' testimony as to this question was inconsistent in terms of rebutting the testimony of Deputy Patterson as to the manner in which beverages were sold by the Respondent, as that relates to the Respondent's physical position in the licensed premises and ability to see what activities transpired in the rear room, the area of the restroom entrance and the pool table. In any event, the foregoing analysis reveals that the testimony of the Petitioner's witnesses is more credible. It is concluded that that of the Respondent's witness, and the Respondent himself, show a lack of knowledge, clear memory, and consistency, at best, without reaching the question of whether any of the Respondent's witnesses deliberately falsified their testimony. Accordingly, the testimony of the Petitioner's witnesses, to the extent that it conflicts with that of the Respondent's witnesses, is accepted as more credible.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the competent, credible evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Respondent, JIMMIE WILLIAMS, d/b/a Copa Cabana, be found guilty of the offenses set forth in Counts II and III of the Notice to Show Cause. It is further recommended that Count I of the Notice to Show Cause be dismissed. It is further recommended that the alcoholic beverage license held by the Respondent be revoked and that a civil penalty of $2,000.00 be assessed against the Respondent. DONE AND ENTERED this 26th day of January, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 26th day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-719 Petitioner's Proposed Findings of Fact 1.-6. Accepted. Accepted, but not as probative of the ultimate fact of the sale of rock cocaine by the Respondent, himself. Accepted, but not as probative of the ultimate fact of the sale of rock cocaine by the Respondent, himself. Accepted. Accepted. Accepted, but not as probative of any material issue presented for adjudication. 12.-16. Accepted, in that these proposed findings of fact describe the testimony of these witnesses. However, these witnesses have been determined to be not credible. 17. Accepted, to the extent that it is arc accurate description of the Respondent's testimony. Respondent's Proposed Findings of Fact 1.-4. Accepted. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and as not Entirely in accordance with the clear and convincing evidence. 7.-9. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and hot in accordance with the clear and convincing evidence. Rejected, as not materially dispositive of the issues presented. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and not, itself, materially dispositive. Rejected, as not, .in itself, materially dispositive. Accepted, in part, but the evidence in this case does not delineate the extent of the premises owned or controlled by the Respondent, and to that extent, it is rejected. Rejected, as subordinate to tide Hearing Officer's findings of fact on the subject matter and as to it's purported material import. Rejected, as to its material import in relation to the remainder of Deputy Patterson's testimony. Rejected, as contrary to the clear and convincing evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and not in accordance with the clear and convincing evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and not being an accurate reflection of the overall sense of the witnesses' testimonies. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as being contrary to the greater weight of the clear and convincing evidence. Accepted, but not, itself, dispositive of material issues presented, except to the extent that it has not been proven that the Respondent, himself, offered any drugs for sale. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and as not being, itself, dispositive of material issues presented. Rejected, as immaterial. Even if this is true, it does not overcome proof that the Copa Cabana club's operations constitute a nuisance. COPIES FURNISHED: Harry Hooper, Esq. Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Leo A. Thomas, Esq. Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. P.O. Box 12308 Pensacola, FL 32581 Leonard Ivey, Director Department Of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000
The Issue Whether respondent's alcoholic beverage license should be disciplined for alleged multiple violations of the Beverage Law.
Recommendation Based on the foregoing, it is RECOMMENDED: That the respondent's alcoholic beverage license be revoked for multiple violations of the Beverage Law. DONE and ENTERED this 22nd day of June, 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 22nd day of June, 1983. COPIES FURNISHED: William A. Hatch, Esquire Howard M. Rasmussen, Department of Business Regulation Director 725 South Bronough Street Division of Alcoholic Tallahassee, Florida 32301 Beverages and Tobacco 725 South Bronough Street Aaron A. Green, Esquire Tallahassee, Florida 32301 410 S.E. 4th Avenue Gainesville, Florida 32602 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the stipulations of the parties, the documentary evidence presented and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent, Ceola Virginia Cutliff is the holder of Alcoholic Beverage License No. 23-06844, Series 2-COP, for a licensed premises known as Club Night Shift, located at 6704 N.W. 18th Avenue, Miami, Dade County, Florida. On or about September 18, 1987, Division of Alcoholic Beverages and Tobacco (DABT) Investigators R. Campbell, R. Thompson and C. Houston entered the licensed premises as part of an ongoing narcotics task force investigation. An individual named "Frances" was on duty at the bar. The investigators observed Frances sell what appeared to be narcotics to several patrons on the licensed premises. At approximately 7:50 p.m., Investigator Houston approached Frances and asked to purchase narcotics. Frances and Investigator Houston then went to the rear of the bar where Frances sold 2 pieces of "crack" cocaine to Investigator Houston for $10.00. Approximately fifteen minutes later, Investigator Campbell asked Frances if he could purchase narcotics. Frances presented a piece of rock cocaine which Investigator Campbell purchased for $5.00. This transaction took place in plain view of other individuals in the licensed premises. Frances, upon making a sale, would take the money and give it to a black male called "Spider" a/k/a Arthur Dorsey. Spider would then retain the money. On September 19, 1987, Investigators Houston and Thompson again entered the licensed premises known as Club Night Shift. On duty that night, was a black female known as "Josephine". Spider was also on the licensed premises positioned in the D.J.'s booth, apparently trying to fix a speaker. Houston and Thompson had observed a black male, named "Gary", exchanging an unknown substance for money with various individuals, immediately outside the licensed premises. Gary, upon receiving money in exchange for the unknown substance, would go into the licensed premises and hand the money to Spider. Later that evening, Investigator Houston noticed that Spider had a brown paper bag in his hand. Gary and Spider proceeded to the bathroom on the licensed premises. After exiting the bathroom, Gary left the premises and Spider went behind the bar and began counting a large amount of money onto the counter of the bar. Spider placed the money in his back pocket. Investigator Thompson then inquired whether Spider could sell him some crack cocaine. Spider acknowledged that he could and proceeded with Thompson to the rear of the bar, where Spider sold Thompson 20 pieces of rock cocaine for $100.00. On September 22, 1987, Investigators Houston and Thompson again entered the licensed premises known as Club Night Shift. Bartender Josephine-was on duty at that time along with another black female known as "Niecey". When the investigators inquired as to the whereabouts of Spider, Niecey replied that "he went home to cook up the stuff because they were very low on supply." Niecey reiterated the above statement on numerous occasions when individuals would enter the bar searching for Spider. At approximately 10:30 p.m., Spider appeared on the licensed premises with a brown paper bag in his possession. Patrons that had been waiting outside the premises came inside and Niecey locked the doors to the front and rear exits of the bar. Spider went to the D.J.'s booth and pbured the contents of the paper bag onto the counter inside the booth. The bag contained approximately 200 small zip-lock bags containing suspected crack cocaine. The patrons who had been waiting outside for the arrival of Spider then proceeded to line up in front of the D.J.'s booth in order to make purchases. Niecey would take the money from the individual patrons and Spider would deliver the crack cocaine. Investigator Houston got in line and upon arriving at the booth, purchased 20 packets of crack cocaine from Spider in exchange for $100.00. These transactions took place in plain view on the licensed premises. On September 23, 1987, Investigators Houston, Thompson and Campbell entered the licensed premises known as the Club Night Shift. The barmaid on duty was Josephine. Spider was positioned in the D.J.'s booth making sales to patrons of what appeared to be crack cocaine. Investigator Campbell walked over to the D.J.'s booth and asked to purchase ten (10) pieces of crack cocaine from Spider. Approximately 200 zip-lock packets of suspected crack cocaine were positioned in front of Spider. Spider motioned for Campbell" to pick them out." Campbell then picked out ten (10) packets in exchange for $50.00 which he gave to Spider. This transaction occurred in plain view of other individuals on the licensed premises. Before leaving Spider went behind the bar, obtained a .357 magnum pistol, placed it inside his pants and exited the premises. On September 29, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. The bartender on duty was Josephine. Shortly after the investigators arrived, Spider appeared on the premises and went behind the bar where he took a pistol from inside his pants and placed it under the bar counter. Spider then removed a brown paper bag from under the bar counter and went to the D.J. s booth. Investigator Thompson proceeded to the D.J.'s booth and asked to purchase two (2) large pieces of crack cocaine. Spider reached into the bag and gave Investigator Thompson two (2) large pieces of crack cocaine in exchange for $100.00. On October 3, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. Investigator Campbell approached an unknown black male who Campbell had seen selling narcotics on prior occasions. Campbell made inquiries relative to the purchase of cocaine and the unknown black male indicated that he could sell Campbell crack cocaine. The unknown male then gave two five dollar ($5.00) pieces of crack cocaine to Investigator Campbell in exchange for $10.00. This transaction took place in plain view on the licensed premises. On October 6, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. Shortly after the investigators arrived, they observed Spider on the premises selling crack cocaine to patrons from the D.J.'s booth. Subsequently, Investigator Thompson went to the D.J.'s booth and asked to purchase twenty (20) pieces of crack cocaine. In response thereto, Spider left the licensed premises and proceeded to a pickup truck parked outside. Spider then retrieved a brown paper bag from the vehicle, returned to Investigator Thompson and handed him twenty (20) pieces of crack cocaine in exchange for $100.00. The substance purchased on this occasion was laboratory analyzed and found to be cocaine. The Respondent licensee admitted to being an absentee owner. The Respondent did not maintain payroll, employment or other pertinent business records. The licensee was aware that drugs were a major problem in the area surrounding the premises and that drug transactions were known to take place immediately outside of the licensed premises. The licensee did nothing to prevent the incursion of narcotics trafficking onto the licensed premises. The licensee, CeoIa Cutliff, is engaged to Arthur Dorsey. Ms. Cutliff gave Mr. Dorsey a key to the premises and knew or should have known that he was operating in the capacity of a manager on the licensed premises. Josephine, the bartender generally on duty, referred to Mr. Dorsey as "boss man" and Mr. Dorsey directed her activities in the licensed premises. Mr. Dorsey a/k/a Spider utilized the licensed premises as if they were his own and was operating in the capacity of a manager at the Club Night Shift.
Recommendation Based upon the foregoing, it is recommended that Respondent's beverage license 23-06844, Series 2-COP, located in Miami, Dade County, Florida, be revoked. DONE and ORDERED this 12th day of November, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 12th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4482 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in substance in Finding of Fact 1. 2. Adopted in substance in Finding of Fact 2. 2. (Petitioner has two paragraphs numbered 2) Adopted in substance in Finding of Fact 3. 3. Adopted in substance in Finding of Fact 4. 4. Adopted in substance in Finding of Fact 5. 5. Adopted in substance in Finding of Fact 6. 6. Adopted in substance in Finding of Fact 7. 7. Adopted in substance in Finding of Fact 8. 8. Adopted in substance in Finding of Fact 9. 9. Adopted in substance in Finding of Fact 10, 11 & 12. Rulings on Proposed Findings of Fact Submitted by the Respondent (None Submitted). COPIES FURNISHED: W. Douglas Moody, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 R. Scott Boundy, Esquire 901 E. Second Avenue Miami, Florida 33132 Honorable Van B. Poole Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Bell, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Daniel Bosanko Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Respondent is Alice Waldo, holder of Alcoholic Beverage License No. 45- 00293, Series 2-COP, for a licensed premises known as the SILVER DOLLAR CAFE located in Lake County, Florida. On or about February 4, 1989, an investigator employed by Petitioner entered the licensed premises of Respondent. While in Respondent's facility, the investigator observed several patrons smoking a substance, which by its smell and usage, he believed to be marijuana. The investigator then met with a patron, ordered a small quantity of crack cocaine and handed the patron some money for the forthcoming purchase. The patron then asked Respondent to hold the money while he left the premises to retrieve the controlled substance from his automobile. Shortly thereafter, the patron returned with the cocaine. The investigator showed the substance to Respondent's daughter, who had taken her mother's place at the bar. The purpose of displaying the drug to the proprietor, or the proprietor's daughter in this instance, was to later illustrate that Respondent condoned the use and sale of the drug in connection with her licensed premises. A field test by the investigator and a later laboratory test confirmed the identity of the substance purchased as crack cocaine. Petitioner's investigator again entered Respondent's facility on or about February 10, 1989. On this occasion, the investigator purchased a quantity of marijuana from a female patron, then took the substance over to the bar where he proceeded to roll a marijuana cigarette in the presence of Petitioner. At no time did Petitioner inform the investigator that controlled substances were not allowed on the licensed premises. Upon later laboratory analysis, the substance was confirmed to be marijuana. Upon leaving Respondent's facility on February 10, 1989, Petitioner's investigator met an individual within 10 feet of the front door of the premises who sold him a quantity of a substance later determined by laboratory analysis to be crack cocaine. On or about February 24, 1989, Petitioner's investigator entered Respondent's facility. On the front porch of Respondent's facility, the investigator purchased a quantity of a substance later determined by the investigator's field test and a subsequent laboratory analysis to be crack cocaine. After completing the purchase of the substance, the investigator went inside the facility, placed the material on the counter and recounted to Respondent that it had just been purchased on the front porch. Respondent made no reply to the investigator's announcement and, instead, complied with his request for change for a $20 bill. Upon receipt of the change, the investigator wrapped the crack cocaine in a $1 bill in Respondent's presence. On February 28, 1989, Petitioner's investigator again entered Respondent's facility. He approached a black female named "Lilly" and gave her $20 for the purchase of crack cocaine. However, after the lady accepted the $20 and left to retrieve the cocaine, she did not return. The investigator complained to Respondent that "Lilly" had failed to deliver the drug to him. The investigator also told Respondent that the lady could keep the $20 if Respondent would get him some of the drug. At that time, Respondent referred the investigator to a group of three male patrons on the front porch of the facility who appeared to be smoking marijuana. At no time during this incident did Respondent take any steps to prevent the use of any controlled substances on the licensed premises. Subsequently, Petitioner's investigator returned to Respondent's facility on or about March 4, 1989. He purchased a beer and went outside to the front porch of the facility. He observed a number of furtive transactions where currency was passed between certain individuals. He noticed Respondent go to one of the automobiles in the facility parking lot, get into the automobile, engage in conversation with the occupants and shortly thereafter emerge from the automobile. Respondent went back into the facility. The investigator approached a black male and gave him $20 for some crack cocaine. The black male took the investigator's money, then went directly to the automobile where Respondent had been previously. He returned shortly thereafter to the investigator with two pieces of a substance which later tested positive, via field test and laboratory analysis, as cocaine. During another visit to Respondent's facility on or about March 9, 1989, Petitioner's investigator observed a patron rolling what appeared to be marijuana cigarettes in Respondent's presence. While Respondent took no action to prohibit the use or possession of the apparently controlled substance, she did get her coat and leave shortly after the investigator's arrival. On or about March 11, 1989, Petitioner's investigator reentered Respondent's facility. The investigator purchased a small quantity of crack cocaine from a black male on the front porch of the facility. The investigator then took the controlled substance inside the building and displayed it to Respondent, telling her that he had just obtained the drug on the porch. Respondent asked the investigator if he was going to smoke the drug, and he replied yes. Later, a field test and laboratory analysis confirmed the drug to be cocaine. On or about March 17, 1989, Petitioner's investigator visited Respondent's facility. This time the investigator purchased a small quantity of a drug on the front porch of the building which, upon subsequent field test and laboratory analysis, was confirmed to be cocaine. After completing the purchase, the investigator took the substance inside and showed it to Respondent. Later in the evening, the investigator engaged Respondent in conversation on the front porch and related to her that he had observed numerous drug transactions taking place in her facility. Respondent smiled in acknowledgment of the investigator's statement and replied that she certainly hoped he was not a policeman. He told her that he was not a policeman. Respondent took no action to prohibit further use or transactions relating to drugs on the premises.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered revoking Respondent's beverage license bearing number 45-00293, Series 2- COP. DONE AND ENTERED this 13th day of June, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1989 APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-10. Addressed. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: EDWIN R. IVY, ESQUIRE BOX 3223 ORLANDO, FLORIDA 32810 THOMAS A. KLEIN, ESQUIRE DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007 STEPHEN R. MACNAMARA, SECRETARY DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007 LEONARD IVEY, DIRECTOR DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007
Findings Of Fact Respondent, Everett R. Rogers d/b/a Circus Bar (Respondent), has been licensed by Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), to sell alcoholic beverages under License No. 39- 602, Series 2-COP, for licensed premises located at 1118 West Kennedy Boulevard, Tampa, Florida, at all times pertinent to this case. Respondent's most recent license expired by its terms on September 30, 1985. Respondent voluntarily closed the business operated under his license on or about February 2, 1985. On or about February 2, 1985, Respondent initiated personal bankruptcy proceedings which encompassed the business which he was operating at the licensed premises. The licensed premises and Respondent's license have been turned over to Respondent's trustee in bankruptcy. On February 2, 1984, three marijuana cigarettes were possessed, sold and delivered at the licensed premises with the knowledge of Respondent's bartender, Bobby Warner.2 On February 3, 1984, the licensed premises were visited by a person named Melvin Stusse and undercover police officer Paul Miller for the purpose of the sale of cocaine, although no sale took place. On February 3, 1984, three grams of marijuana were possessed, sold and delivered at the licensed premises. On February 3, 1984, undercover police officer Thomas Kinsella possessed marijuana on the licensed premises with the knowledge of bartender Warner. Kinsella asked Warner for something in which to place a baggie of marijuana, and Warner took Kinsella to the stockroom to give him a paper clip box for that purpose. On February 6, 1984, bartender Warner and patrons of the licensed premises gambled on the pool table in the licensed premises. On February 8, 1984, the sale of eight marijuana cigarettes was negotiated at the bar in the licensed premises but the delivery took place outside the premises and there was no evidence that the marijuana was possessed in the licensed premises. On February 9, 1984, three marijuana cigarettes were sold, delivered and possessed at the licensed premises with the knowledge of Respondent's manager, Joan Sammons. On February 13, 1984, the sale of approximately two and one-half grams of marijuana was negotiated at the licensed premises with the knowledge of bartender Warner. The marijuana was delivered outside the licensed premises, and there was no evidence that marijuana was possessed on the licensed premises. On February 24, 1984, six marijuana cigarettes were sold, possessed and delivered on the licensed premises with the knowledge of manager Sammons. On February 28, 1984, approximately two and one-half grams of marijuana were sold, possessed and delivered on the licensed premises with the knowledge of bartender Warner. On March 5, 1984, bartender Warner possessed, sold and delivered five marijuana cigarettes on the licensed premises. On March 6, 1984, manager Sammons sold, possessed and delivered approximately two grams of marijuana on the licensed premises. On March 7, 1984, manager Sammons purchased $50.00 worth of USDA food stamp coupons for $25.00 on the licensed premises. On March 19, 1984, manager Sammons purchased $150.00 worth of USDA food stamp coupons for $75.00 on the licensed premises. Also on March 19, 1984, four marijuana cigarettes were possessed, sold and delivered on the licensed premises with the knowledge of manager Sammons. On March 21, 1984, approximately 1.2 grams of marijuana were possessed, sold and delivered on the licensed premises. It was not proved that any of Respondent's employees were aware of this transaction. On March 30, 1984, Respondent's bartender, Steve Keller, possessed, sold and delivered approximately three and one-half grams of marijuana on the licensed premises. Manager Sammons also knew about this transaction. Respondent had a policy against illegal drug activity and gambling on the licensed premises. He enforced the policy when he was on the licensed premises. Respondent posted signs prohibiting gambling and told employees that they should evict patrons suspected of illegal drug activities or gambling. But Respondent did little or nothing to ensure that his policies were followed evenings and weekends when he was not present at the licensed premises. Respondent performed no background checks on his employees and continued to employ Sammons as his manager although he knew she had been arrested. Respondent had no written employment application or written instructions for his employees. Respondent did not polygraph his employees.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking alcoholic beverage license number 39-602, Series 2-COP, held by Respondent, Everett R. Rogers d/b/a Circus Bar, 1118 W. Kennedy Blvd., Tampa, Florida. RECOMMENDED this 19th day of December, 1985, in Tallahassee, Florida. L LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1985.
Findings Of Fact On March 3, 1976 Leon County Deputy Sheriffs armed with a search warrant and accompanied by a beverage agent visited the Starlight Club to search for marijuana. The beverage agent did not enter the premises. When a search of the Starlight Club failed to disclose any marijuana the mobile home parked behind the Starlight Club was searched and therein more than 5 grams of cannabis was found. The mobile home is owned by Respondent Smith, but was leased to Hugh Lee Ott who occupied the mobile home as his residence. Ott was in the employ of Respondent as manager of the Starlight Club at the time of the alleged offense. Ott was arrested and subsequently tried and convicted of possession of cannabis in an amount greater than 5 grams.
The Issue This case arises out of a notice to show cause served upon the Respondent by the Division of Alcoholic Beverages and Tobacco alleging that Beverage License No. 27-92 should be suspended, revoked or otherwise disciplined for five separate counts involving drug sales on the licensed premises. As a basis for its proof, Petitioner relied upon a stipulation entered into with the Respondent and a Division of Alcoholic Beverages and Tobacco Case Report which was admitted without objection. Mr. Charles Andrews testified on behalf of himself as licensee. A copy of the notice to show cause was admitted as Joint Exhibit 1 and the Petitioner of foreign and had admitted without objection one exhibit, the case report of the Division of Alcoholic Beverages and Tobacco.
Findings Of Fact Charles D. Andrews, trading as Odom's Bar, is the licensee of Beverage License No. 27-92, License Series 4-COP. The licensed premises is located on Highway 29 in Century, Escambia County, Florida. The Petitioner and Respondent, having stipulated to the truth and accuracy of those facts alleged in the notice to show cause, and based upon that stipulation, the undersigned Hearing Officer finds those facts set forth in A through F of this paragraph: On May 24, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate the laws of the State of Florida by delivering a controlled substance, to wit: cannabis to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews, contrary to Florida Statute 893.13 within Florida Statute 561.29. On June 14, 1982, Johnny Andrews, the employee of Charles D Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, cannabis, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews. On June 17, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, cannabis, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews. On July 11, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, LSD, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews. On August 6, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, LSD, to Actent P. A. Blackman while on the licensed premises of Charles D. Andrews. A. The negotiations and discussions about the May 24, 1982, transaction occurred inside Odom's Bar and the delivery took place through the drive-in window located on the north side of the licensed premises. On June 14, 1982, Beverage Officer Blackman drove to the drive-in window and asked Johnny Andrews if he was holding any pot. Johnny Andrews stated he was holding a 35 cents bag. After a short discussion about possible purchase of a larger quantity, Officer Blackman purchased the bag of marijuana for $35.00. The plastic bag of marijuana was in a brown paper bag and was handed to Officer Blackman through the drive-in window. The delivery of the marijuana to Officer Blackman on June 17, 1982, also took place at the drive-in window. Johnny Andrews handed Blackman a brown paper bag containing a Miller and a plastic bag of marijuana. On July 11, 1982, Officer Blackman observed three patrons smoking a marijuana cigarette in Odom's Bar, and this activity was observed. by the barmaid on duty. No attempt was made to stop the activity. Officer Blackman was offered the marijuana cigarette and he pretended to smoke it. At this time, Johnny Andrews approached Officer Blackman and offered to 7 sell him some "acid" (LSD). Officer Blackman agreed and was instructed to drive around to the drive- in window. He did so and the delivery of the "acid" took place through the drive-in window. On August 5, 1982, Officer Blackman, after being in the licensed premises, drove up to the drive-in window where Johnny Andrews offered to sell him some "acid" (LSD) Officer Blackman agreed to purchase and agreed to return on August 6 to pick up the "acid". on august 6, 1982, Officer Blackman returned to the drive-in window where Andrews handed him a bag containing six hits of acid. At the time of the conversations and purchases on June 14, August 5, and August 6, 1982, Johnny Andrews was on duty and working at Odom's Bar. Mr. Charles Andrews has owned Odom's Bar for the past five years and worked for the two previous owners. He began working at Odom's Bar 20 years ago. The bar is managed by Respondent and his wife. Johnny Andrews, referred to in the stipulation above, is the son of Mr. and Mrs. Charles D. Andrews, and during the time period of the incidents set forth in Paragraph 1, was working as an employee at the bar. This was the first summer he had worked at the bar. He was working while he was home from college, and has not been allowed to work at the bar since August, 1982, when he was arrested. Generally, Johnny Andrews would relieve Mr. and Mrs. Andrews and they would leave the bar while he was working. The Respondent, Charles D. Andrews, had no knowledge of the drug transactions his son was involved in. Prior to the incidents in question, Odom's Bar was operated by Mr. and Mrs. Andrews with the help of four women whom they employed. Mr. Andrews had previously given instructions to his employees that they were not to allow drugs of any type to be used or sold on the premises. On the date of Johnny Andrews' arrest, agents for the Division of Alcoholic Beverages and Tobacco thoroughly searched the licensed premises and found no drugs. The clientele of Odom's Bar is primarily middle- aged persons. Prior to the incidents described in Paragraph 1 above, the licensee, Charles Andrews, had had no other violations of the law or drug related problems at the licensed premises. Once Mr. and Mrs. Andrews were notified of the charges and arrest warrant for their son, they cooperated with the police and also aided them in completing their arrest of Johnny Andrews. Although the Respondent testified that he had cautioned his employees against drugs on the premises, there was no evidence that he took any steps to ensure that the premises were being properly supervised and legally operated in his absence. There was no arrangement or plan whereby the licensee monitored what was occurring at the licensed premises in his absence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That a Final Order be entered finding the Respondent in violation of Florida statute 561.29, imposing a civil penalty of $1,000,and suspending Respondent's beverage license for a period of 60 days. DONE and ENTERED this 26th day of April, 1983, 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 28th day of April, 1983. COPIES FURNISHED: William A. Hatch, Esquire Mr. Howard N. Rasmussen Department of Business Director, Division of Alcoholic Regulation Beverages and Tobacco 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Mr. Charles D. Andrews Mr. Gary Rutledge Highway 29, Odom's Bar Secretary, Department of Business Century, Florida Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether the licensee fostered, condoned and/or negligently overlooked trafficking in and use of illegal narcotics and controlled substances on or about the licensed premises, failed to exercise due diligence in supervising its employees; and whether the licensed premises constitute a public nuisance as defined in Section 823.10, Florida Statutes.
Findings Of Fact At all times relevant hereto, Chessor & McIntire, Inc., held alcoholic beverage license number 63-00525, series 4-COP, for a licensed premises known as Barry's II, located at Highway 92 and Fairway Avenue, Lakeland, Florida. Barry McIntire owns 50 percent of the stock and is president of the corporation. Richard Chessor owns the other 50 percent of the stock. Following receipt of complaints that Barry's II was the site of illegal drug activities, the Division of Alcoholic Beverages and Tobacco contacted the Polk County sheriff's Office; and a joint undercover investigation was instituted. This investigation started in May 1990 and ended on September 14, 1990. DABT agents entered Barry's II (the bar) on the evening of May 29, 1990, and during the early morning hours of May 30, 1990 agent West purchased a quarter gram of cocaine from a female patron of the bar. The purchase took place inside the premises. Barry McIntire was seated at his usual place at the bar some 15 feet from the end of the bar where the transaction occurred. Apparently, it was after this purchase that DABT contacted the Sheriff's Office, and the joint investigation commenced. Undercover activities in the bar picked up in August 1990 when special agent Moore of the Polk County Sheriff's Department became a frequent visitor in the bar. Deputy Sheriff Moore first entered the bar August 16, 1990 with DABT agent Green and a confidential informant (CI). On this date, Moore purchased methamphetamine (crank) from an employee, Robert Hollis (Bob) who worked as bouncer at the bar. This transaction occurred in the men's room on the licensed premises. On August 21, 1990, Moore again entered the licensed premises and was approached by employee Bob who inquired if he was interested in purchasing crank, and when Moore replied in the affirmative, Bob introduced Moore to Rick, a former employee of the bar, who sold Moore crank. This transaction took place just outside the bar in the parking lot. Later this same evening, Rick again sold crank to Moore with the transaction taking place in the parking lot. On August 22, 23, 24, 28, and September 4, Rick sold crank to Moore with the contact made inside the bar and the transaction occurring in the parking lot. On August 23, 1990, Moore was approached inside the bar by another bouncer, "Tiny", who asked if Moore had a knife he could borrow. Tiny returned shortly thereafter, returned Moore's knife and stated he just did a "bodacious line of crank", indicating about 2 inches. On August 29, 1990, Agent Green, Deputy Moore, and the CI, exited the bar to look for Rick in the parking lot. There they observed six patrons of the bar passing around a joint which each was smoking. The smoke smelled like marijuana. Later in the bar, an unidentified female patron asked Moore if he had any rolling paper so she could prepare a marijuana cigarette. Moore gave her a rolling paper. On or about September 4, 1990, while Agent Green was in the bar, he was approached by waitress Kathy who asked if he was looking for anything. When Green replied yes, Kathy left and returned a short time later from the rear of the bar. She then handed Green a small plastic bag containing crank, and Green gave her $25. On September 5, 1990, DABT Agents West and Green, and Deputy Moore, while in the bar, were told by Bob to go out back of the licensed premises. Outside, Moore found Rick who announced he had some "good weed" (marijuana) . Moore gave Rick $35 for a small bag of this marijuana. On the same date, waitress Kathy sold crank to Agent Green inside the bar; and Debbie Hollis, the ex-wife of Bob, sold crank to Moore outside the bar. On September 6, 1990, Moore was approached by waitress Julie inside the bar, and she asked if he wanted some crank. Moore replied "yes" and handed Julie $25. She returned shortly thereafter and handed Moore, who was standing near the cigarette machine, a quarter gram of crank. On the same date, Moore was twice asked by Julie if he wanted to join her in smoking marijuana in the parking lot. Moore simulated smoking the joint and retained the butts which were later determined to be marijuana. On September 8, 1990, Deputy Moore, while in the bar, was approached by Julie who inquired if he had a blade. He gave her his knife, which she returned some five minutes later and asked if he wanted any crank. Moore responded "no". Shortly before 2 a.m. the next morning, Julie gave Moore a small package of crank saying this is for the use of your knife. The same evening, September 8th, Agent Green purchased crank from an employee named Sheila who delivered it to him in a cigarette package inside the bar. On September 11, 1990, Deputy Moore was approached inside the bar by Rick. They went outside to the parking lot where Moore bought both cocaine and crank from Rick. On September 12, 1990, Agent Green approached inside the bar by employee Kathy who inquired if he wanted "any" and said she had two kinds of [crank] that night. Green later purchased one quarter gram of "white methamphetamine" from Kathy in the parking lot. On September 13, 1990, Deputy Moore followed McIntire to his office and asked McIntire if he could get Moore anything to "perk him up". McIntire told him he didn't do drugs, didn't condone drugs, but said "God bless you" when Moore departed. Following many of these transactions, the undercover agents held the packages they had purchased up to the light of the cigarette machine to examine the quantity in such a manner that could readily be seen by patrons and others in the bar. They frequently showed these baggies to waitresses who smiled with the appearance of recognizing the contents of the baggies. Robert W. Hollis (Bob) confirmed that Barry's had a policy of firing employees who sold drugs, but nobody was banned or kicked out of the bar for using drugs; and that there were too many people using drugs to kick everybody out. Hollis told Rick not to sell inside the bar, but to do his transactions outside. Barry McIntire came to the bar almost every night around 10 p.m. and stayed until closing at 2 a.m., except weekends when he came in around 8 p.m. Most of the time McIntire was seated at the bar where he could observe the patrons and employees. McIntire testified he doesn't smoke, drink or do drugs, and that he doesn't condone the use of drugs. He has a policy not to allow drugs being sold on the premises, and if employees are observed doing drugs on the premises they are fired immediately. He also testified that he walks around in the bar occasionally and also strolls outside into the parking lot. He further testified that nobody can say he doesn't know what is going on in the bar and parking lot and that drugs are everywhere. The bar was raided on September 14, 1990 by sheriff's deputies and DABT agents who also searched the premises. Several arrests were made, but no controlled substances were found on the licensed premises.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be entered finding Chessor & McIntire, d/b/a Barry's II, guilty of violating Section 561.29(1)(a) and (c), Florida Statutes, and revoking the license of Chessor & McIntire, d/b/a Barry's II, and assessing an administrative fine of $7500. ENTERED this 18th day of January, 1991, in Tallahassee, Florida. K. N. AYERS 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 18th day of January, 1990. COPIES FURNISHED: Robin Suarez, Esquire Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000 Richard D. Mars, Esquire Post Office Box 1276 Bartow, FL 33830 Joseph Sole Secretary Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000
Findings Of Fact Respondent Mary L. Alexander holds beverage license No. 28-0041, Series 2-COP. Under this license she sells beer and wine at Whisper's Cafe, a business which she has owned and operated for approximately two years in Bunnell, Florida. (Testimony of respondent) Respondent employs a cook and a part-time bartender, who also serves as a disc jockey. The cook works primarily in the kitchen. At around 8:30 P.M., the bartender begins operating the juke box and remains in the dance area of the licensed premises, an area separated by a wall from the rest of the premises. Respondent (or a substitute bartender), works primarily in the bar and pool table area, which is located between the dining and dance areas of the premises. (Testimony of respondent) The evidence establishes, without contradiction, that two of respondent's bartenders committed three separate drug violations on the premises during April and May, 1982. Two violations involved bartender Ronney Locke, one involved bartender Fred Austin. I. Two Drug Violations by Bartender Locke On April 30, 1982, Maria Scruggs, a DABT Beverage Officer, entered Whisper's Cafe in an undercover capacity. Approximately twenty customers were on the premises--four or five were standing at the bar. Officer Scruggs ordered a drink at the bar. Several minutes later, Thomas Alexander, respondent's son, approached her and a conversation ensued. She asked him if he had any marijuana she could buy. He replied that he did not, and then referred the question to bartender Ronney Locke. Mr. Locke, offering to check around the bar, approached Clarence Lorick, a customer, who then delivered a small quantity of marijuana to Mr. Alexander for $5.00. Mr. Alexander, seated at the bar, rolled a marijuana (cannabis) cigarette in his lap and gave it to Officer Scruggs, who then left the premises. The cigarette was rolled in an open manner and in plain view of others on the premises. Respondent was not on the premises during this transaction and was unaware of its occurrence. (Testimony of Scruggs, respondent, P-1) On May 7, 1982, Officer Scruggs reentered the licensed premises in an undercover capacity. She began to talk, separately, with respondent and bartender Locke. She asked Mr. Locke if any cocaine or marijuana was available. He replied that he would check with the other customers for a $5.00 bag of marijuana. He approached Ginnie Lee Caskins a customer, Who then approached Officer Scruggs and handed her a manilla envelope containing marijuana (cannabis). Officer Scruggs said nothing and handed her $5.00. This exchange of money and marijuana took place under the bar and out of view of the other customers on the premises. Although respondent was on the premises, she was not close by and did not see the exchange or overhear the conversation. (Testimony of respondent, Scruggs, P-2) II. Drug Violation by Bartender Austin On May 12, 1982, Alphonso Junious, another DABT Beverage Officer, entered the licensed premises in an undercover capacity. He asked bartender Fred Austin, an employee of respondent, if he knew where he could buy some marijuana. Mr. Austin walked to the door and summoned Clarence Lorick, who then entered the premises. After a brief conversation, Mr. Lorick handed a small quantity of marijuana (cannabis) to Officer Junious, who, in turn, handed him $5.00. This exchange took place in a secretive manner and occurred after respondent had left the premises. She was also unaware of this drug transaction. (Testimony of Junious, respondent, P-3) III. Drug Violation by Respondent DABT also contends that on May 14, 1982, respondent unlawfully aided, counseled, or procured the sale or delivery of marijuana (cannabis) to Officer Junious. Respondent denies it. The evidence, although conflicting, substantiates DABT's contention. On May 14, 1982, Officer Junious reentered the licensed premises in an undercover capacity. He purchased a beer from respondent, who was tending bar. While seated at the bar, he overheard respondent tell an unidentified female patron that she (respondent) had been to a musical concert and had to leave to get something to smoke. Officer Junious, construing this to mean marijuana, said to her, "I could use something to smoke too," or words to that effect. Respondent replied, "Boot got some." (Testimony of Junious) Officer Junious knew who "Boot" (Henry Brown) was, having previously purchased marijuana from him in an undercover capacity. Officer Junious then left the premises, found "Boot" outside, and purchased a small quantity of marijuana (cannabis) from him for $5.00. (Testimony of Junious) These findings are based on the testimony of Officer Junious. Respondent denies that she said "Boot got some" or that she had any conversation with Officer Junious on May 14, 1982. She also denies that she said she could use something to smoke, and states that she does not smoke either tobacco or marijuana. Taking into account her bias and interest in the outcome of this proceeding, the testimony of Officer Junious is more credible and is accepted as persuasive. IV. Respondent's Supervision of the Premises Respondent, periodically, reminded her employees that no marijuana was allowed on the premises. She took no other action to ensure that drug violations would not occur on the premises. (Testimony of respondent On May 27, 1982, arrest warrants were executed by DABT and the licensed premises was searched. No illicit drugs were found on the premises. (Testimony of Scruggs) There is no evidence that marijuana has ever been smoked in the licensed premises. Neither does the evidence support a finding that respondent knew that marijuana had been, or was being, sold or delivered on the premises. The four separate drug violations committed on the licensed premises, and the manner in which they were committed, however, support a conclusion that these violations of law were fostered, condoned, or negligently overlooked by respondent, and they occurred, at least in part, due to respondent's failure to diligently supervise her employees.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license be suspended for a period of 90 days. DONE and ORDERED this 10th day of December,1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1982.
