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
The Issue Whether the Alcoholic Beverage License No. 31-0001, Series 8-COP, issued to the Respondent, should be reinstated and the action dismissed or whether the Petitioner should impose a civil penalty, suspend, or revoke the liquor license of the Respondent, pursuant to Section 561.29(1)(a), Florida Statutes, due to a violation of Chapter 893, Florida Statutes, by Respondent's agents, officers, servants or employees while in the scope of their employment, or by negligently overlooking or condoning violations of Chapter 893, Florida Statutes, by others on the licensed premises; or did the licensee violate Section 561.29(1)(c), Florida Statutes, by maintaining a nuisance on the licensed premises in that flagrant violations of Chapter 823 and 893, Florida Statutes, were allowed.
Findings Of Fact The Respondent is the holder of Alcoholic Beverage License No. 31-0001, Series 8-COP, for a licensed premises known as the Suwannee Lounge and Package, which is located at the intersection of U.S. Highway 19 and State Road 26, Fanning Springs, Florida. Richard D. Chase, a/k/a "Teddy Bear", is the President of the licensed corporation. On February 24, 1990, the Petitioner suspended the Respondent's license by an Emergency Suspension Order. The Petitioner made a timely request for hearing. 1984, Mr. and Mrs. Richard D. Chase, together with two Miami investors, formed Bear Cap Investments, Inc. and purchased the above-referenced alcoholic beverage license. Mr. and Mrs. Chase each had over eight (8) years experience in managing bars at American Legion Posts in the Dade County area. The Miami corporate investors relied upon Mr. Chase's management skills and were not involved in the day-to-day operation of the business. Only licensee Richard Chase, a corporate officer and stockholder of Bear Cap Investments, Inc., was involved in the alleged violation under Chapter 561, Florida Statutes. Mr. Chase is a 15% owner of stock and the other stockholders, John Gmyrek (40% stockholder); Tom Sullivan (30% stockholder); and Phyllis Chase (15% stockholder), are not directly involved with the management of the lounge. The licensed premises was a concrete structure, 60 x 100 feet, sitting on a two-acre parcel of land. The lounge was in Gilchrist County, but the Levy County line ran through the parking lot. The front entrance, facing U.S. 19, has an enclosed 12 x 12 foot foyer with standard glass doors as an entrance to the building. To the left of the entrance, there was a 40-foot bar that ran from a storage room towards the front of the establishment and could seat approximately 40 people on both sides of the U-shaped structure. A second bar to the right of the door, running approximately 15 feet along the west wall, was used only on weekends. In front of the bar was an opened walkway area, then tables and chairs which could seat approximately 200 people, a dance floor and a bandstand. Further, to the right of this bar was an area with game machines and pool tables. Along the south wall was an office for licensee Richard Chase, which was approximately 10 x 12 feet, along the corridor leading to the bathrooms. A diagram of the interior was introduced as Hearing Officer Exhibit 1. The parking lot held upwards of 100 vehicles on weekends. It was illuminated by floodlights and by a sign 60 feet from the foyer door. Entertainment, other than on weekends, was provided by a juke box. Agents in the Special ABSET Unit of the Division of Alcoholic Beverages and Tobacco conducted an investigation in Gilchrist County, Florida, from February 3-22, 1990 of drug sales in licensed liquor establishments following a complaint from the Police Chief of Trenton, Florida, in a letter to the Department, and following conferences with Gilchrist County Sheriff Jim Floyd. In addition to the Suwannee Lounge, the Division of Alcoholic Beverages and Tobacco investigated the Old Tavern, the Hitching Post, and the Santa Fe Lounge. The investigation of the premises was conducted by Agents Randy West, Anthony Drinkwater, Betty D. Warner and Janine Krause. When any of the agents were at the Suwannee Lounge, they were kept under surveillance from a van in the parking lot by Agents Reylius Thompson and Ernest Green. ABSET Director Bruce Ashley also participated in some of the surveillance from the van. Due to Agent Krause's employment as a waitress at the Suwannee Lounge, agents were there during the weekend nights of February 9th, 10th and 16th and 17th. On the night of February 3, 1990, investigators from the DABT arrived on the licensed premises for the purpose of conducting an undercover investigation. They reported nothing untoward, and left, returning again on February 5, 1990. T-I- 26,27. February 4, 1990 was a Saturday. On the night of February 4, 1990, there was a band and an all-male review at the licensed premises. T-I-27. On that date, Investigators Krause and Warner entered the premises together, where they were covered inside by Investigator West and outside by Investigators Ernest Green and Ray Thompson. On this occasion, Krause spoke with Richard Chase with whom she indicated she was trying to find a job. Chase suggested the Wal-Mart; and after finding that Krause had experience as a waitress, he also suggested she see Diana, his head bartender, who did all of the hiring. February 4, 1990 was a Sunday. (a) On the night of February 5, 1990, Investigators Krause, Warner, and West returned to the licensed premises. T-I-30. There was no band; however, there was a juke box playing. A customer named Dave, last name unknown (LNU), was seated at the bar, one seat away from where Krause was sitting, and talking to an unidentified man next to Krause. Krause could not hear the conversation between the two men. After Dave got up, the unidentified man next to Krause commented to her that Dave had been the second person to offer to sell him drugs on that evening. Dave subsequently approached Investigator West, who was standing close to the door, and offered to sell marijuana to West. West agreed; they both walked to Dave's truck, which was parked in the parking lot; and West purchased marijuana from Dave. T-I-149. Thereafter, Dave approached Krause, who was walking to the bathroom, and offered to sell her marijuana. She agreed, sought out Investigator Warner, who accompanied her to Dave's truck, where Krause purchased marijuana from Dave. T-I- 31. Subsequently, one of the male dancers, who Krause had met the night before, approached Krause and asked her whether she had purchased drugs from Dave. T-I-33. She smiled and the dancer approached Dave. Dave and the dancer left the bar, returned sometime later, and asked Krause if she had some cigarette papers. T-I-33. She said she did not and the dancer left again. T- I-34. Krause and another patron sat at the bar carrying on a discussion about drug use during this period. While they were talking, Viola was tending bar in their vicinity. T-1-34. The dancer returned and said he had found some cigarette papers. He and Dave asked if Krause wanted to go get high. Krause asked where and was advised they could go to the "band house", a small building detached from the licensed premises in which the male dancers were being permitted to stay. The dancer and Dave left and returned in a few minutes. T-I-36. Krause and Warner left the premises shortly after that. T-I-37. The drugs purchased by West and Krause were analyzed and found to be marijuana. Richard Chase was not on the premises on February 5, 1990, which was a Monday. On February 7, 1990, Investigator Drinkwater entered the licensed premises. While there, he went to the bathroom, where he observed three males bent over what appeared to be three "lines" of cocaine on the bathroom vanity. Upon his return to the bar, he was asked by a customer, Wayne Vincent (or Vinson), if he wanted to "do a line" of drugs. On the night of February 8, 1990, Krause and Warner entered the licensed premises covered by Jackson and Green in the van parked in the parking lot. T-I-37. While inside the premises, Krause and Warner were invited by a customer, Carlton Jackson, a patron of the bar, to leave the bar and smoke marijuana in his car in the parking lot of the bar. They smoked marijuana (or simulated smoking it) in Jackson's car, which he moved from the front of the door to the side of the building. February 8, 1990, was a Thursday. (a) On the night of Friday, February 9, 1990, Krause worked as a waitress on the licensed premises. She was accompanied by Warner. T-I-112 and T-I-39. As she began to wait on tables, she was given a tray, money, and a ticket book by Diana, the head bartender, who did not give any instructions to Krause about what to do about drugs on the premises. Richard Chase was on the premises on February 9, 1990. Krause observed the patrons as she waited tables. She saw patrons walk outside together and re-enter the premises. Krause observed the patrons had a marijuana smell about them, their eyes were bloodshot; and they appeared to be under the influence. Other patrons were talking about using drugs. Krause had six offers to take her outside and get high, which she declined, and was given a marijuana cigarette as a tip. On February 10, 1990, Investigator West negotiated the purchase of half a gram of cocaine in the licensed premises from a customer, Wayne Vinson or Vincent. Vinson or Vincent delivered the cocaine to West in the bathroom of the bar. On February 11, 1990, Krause worked as a waitress again at the licensed premises. T-I-43. Annie LNU, another waitress, advised Krause that she could safely discuss drugs with her and most others there, but not in front of Diana, the head bartender. Annie also told Krause she could not leave her station during her shift, except to go to the bathroom and doing drugs in there was "not cool." After closing on that night, Krause displayed a package of cigarette papers to Richard Chase and thought that he saw them. Outside the premises, a couple of white, male patrons commented to Krause that she "had just missed some snort." (a) On the evening of February 16, 1990 and on the morning of February 17, 1990, Krause worked as a waitress at the licensed premises. T-I-46. Investigator Warner was covering Krause inside the premises. Warner was introduced to a customer, James Corbin, by Investigator Drinkwater, who told Corbin that Warner wanted to purchase some cocaine. Corbin told Warner he could get her a half gram of cocaine. Later, Drinkwater came to Warner and said that Corbin did not trust her and would only do business through him. Warner gave $40.00 to Drinkwater while he was standing at the second bar in the vicinity of the bathrooms. Subsequently, Corbin delivered a bag of cocaine to Drinkwater in the bathroom, and Drinkwater, in turn, delivered the cocaine to Warner. Warner walked up to Krause in the middle of the darkened lounge while she was working, held up a small bag of cocaine, and stated, "See what I have got." Krause held up a marijuana cigarette which she had received from a patron and stated, "See what I have got." This occurred while the band was playing, and their conversation was loud enough that they could hear one another. She left the marijuana cigarette on her tray for 45 minutes while waiting on customers and ordering drinks from the bar. Krause was working a station serviced by Wanda LNU, and if Wanda saw the marijuana cigarette, Wanda made no comment about it. After closing, Krause conversed with Richard Chase in his office as he was counting money. She advised him that it had been a weird night and that she had had several offers to go outside and get high. Chase answered her with one word, "Yeah." (a) On February 17, 1990, Krause worked as a waitress at the licensed premises. T-I-50. Krause asked a patron, Mitch LNU, if he could find a bag of marijuana for her. Mitch later told Krause that he had found a marijuana cigarette for her, and it would be great to smoke that after work. T-I-51. Krause also told a patron named Shannon LNU that she was looking for a quarter of an ounce of marijuana. Shannon later told her that he had looked at a bag of marijuana but that it was over priced. Investigator Warner approached James Corbin and asked him if he could get her another half gram of cocaine. Warner got $40.00 from her purse at the bar, delivered it to James Corbin, and Corbin subsequently delivered a bag of cocaine to Warner in the vicinity of the hallway to the bathrooms. T-I-51 and T-I-120. Warner showed Krause the cocaine in the middle of the bar; however, the lights were turned down. Krause put her tray down at her station, went to the bathroom with Warner and pretended as if they had taken cocaine. Krause talked with Annie and told her that it had been a bad night, and the only good thing that had happened was that she had received a marijuana cigarette for a tip. Annie replied to Krause that she wished someone would leave her a marijuana cigarette. T-I-53. Krause told Wanda, her bartender, that someone had walked out on a drink tab, and someone had left her a marijuana cigarette as a tip. Wanda commented that that sometimes happened. T-I-53. Krause showed the marijuana cigarette to Rob LNU, a member of the band and his girlfriend, Sharon LNU. Rob tried to get her to split it with them, but Krause refused. T-I-53. As Krause left the premises that night, Krause showed Chase a marijuana cigarette outside the premises which she had gotten as a tip and commented that it was the only good thing that had happened that night. Chase laughed and put his arm around her. On February 18, 1990, Krause and Warner entered the premises as patrons. Another patron, Tommy LNU, asked them if they wanted to go outside and smoke a marijuana cigarette. They left the bar with Tommy, went to his truck which was across the parking lot in view of the front door, and simulated smoking a marijuana cigarette. Tommy also gave them the remains of several marijuana cigarettes. On February 21-22, 1990, Krause and Warner entered the licensed premises. T-I-60 and T-I-129. Investigators West and Drinkwater were sitting at the bar when Krause and Warner arrived. Investigator Drinkwater purchased marijuana from Daniel "Dano" McKenzie and Investigator West purchased cocaine at the bar of the licensed premises. T-I-l64-166, T-I-60 and T-I-129. At the time of the purchase, the bartender and manager, Diana Kirkland was tending bar by herself, (T-I-82) and had her back turned towards West and McKenzie while they were conversing. During these sales, West and Drinkwater were seated at the end of the main bar closest to the main entrance, and Kirkland was standing in the middle of the main bar approximately 15-20 feet away. See Hearing Officer's Exhibit 1. During the transaction, West stated that Kirkland was standing there looking over at her customers and looking back at West and McKenzie. Although Krause heard part of the conversation between McKenzie and West (T-I-57), Kirkland did not hear the conversation (T-I-254), and although West held up the bags of drugs, Kirkland did not see them. On February 21-22, 1990, Krause purchased a half gram of cocaine from McKenzie for $40.00 while sitting at the back bar. McKenzie told her to be real careful around the people in the bar and told Krause to find him when he was on the door and he would tell her which people were okay. McKenzie was a major source of drug trafficking on the premises. McKenzie described himself as a part-time employee of the premises. He was hired and paid by Neal Nielson, who was a regular employee, to fill in for him. When working, McKenzie had access to the storeroom and did various tasks, to include collecting money, checking identification, and filling up coolers. He advised Krause on February 21-22, 1990 to be careful about talking about drugs around Viola and Barbara LNU. On that night, McKenzie was not working and was not an employee of the licensed premises. On February 24, 1990, a raid was conducted of the licensed premises by agents of several law enforcement agencies. During the raid, all of the customers and employees were forced to leave the premises where they were checked by narcotics dogs. The premises was then searched with the assistance of these dogs. This revealed a cache of drugs which were found in the area in which McKenzie had been working and several marijuana cigarette butts discovered in a spittoon in the pool playing area of the bar. No other drugs were found on the premises, customers, or employees. There were no written policies on drug use or signs prohibiting it on the premises. T-I-50 The only regular, full-time employee who discussed drugs and drug use with agent Krause was "Annie" Curiel, who had worked at the bar for only five (5) weekends prior to her discussion on February 9, 1990. She warned Agent Krause not to talk about marijuana to Diana, the Manager. The only drugs found by agents and law enforcement officers, using a drug-sniffing dog on February 24, 1990, the night the Emergency Suspension Order was served, were those belonging to Daniel "Dano" McKenzie and a few marijuana "roaches" in a spittoon near the pool table. Every patron and employee was searched by the drug-sniffing dog as they exited. A complete search of the premises, including storage areas above the bar, by the dog, turned up no illegal narcotics. Agents Thompson and Green, in their surveillance van in the parking lot, did not witness, hear, or photograph any drug transaction during the entire operation, to include those in the parking lot. While agent Krause was wearing a body bug, it was not possible to hear clearly during business hours due to the noise and at no time did Thompson and Green hear any discussion of drugs. The bug was used mostly for Agent Krause's safety after closing. All of the employees, with the exception of Investigator Krause, were aware of the licensee policy that drug use by employees would not be tolerated. The licensee had instructed the manager, Diana Kirkland, to fire a former employee, Denise, after a patron reported to bartender, Wanda Sampley, that the waitress was using cocaine in the bathroom. Most employees were aware that they would be fired if found to be using drugs or that patrons would be ejected and barred from the establishment if they were involved in drug activity. Sheriff Jim Floyd reported that there were 97 calls to the Suwannee Lounge from February 24, 1989 until February 23, 1990, of which only 15 (or 15%) were related to drugs. Of the five (5) Series 8-COP licenses in his jurisdiction, two (2) are in the City of Trenton for which he has no statistics. The Suwannee Lounge is by far the largest licensed premises in his jurisdiction. The only other licensed premises for which he was able to provide statistics indicated that eight (8) drug arrests were made in the parking lot of the Santa Fe Lounge, another licensed premises, in one evening. The licensed premises is not charged for maintaining a nuisance for anything other than drug activity, as stated in Count 15 of the Order to Show Cause. Licensee Richard Chase had requested uniformed Gilchrist County Deputies, to be paid by the licensee, inside his premises and in his parking lot as a deterrent to any violation of the law; however, Sheriff Jim Floyd denied the employees permission because of potential liability by the Sheriff's Department. Licensee Richard Chase was aware of the Beverage Department's policy of revoking beverage licenses on premises where the owners or licensees were involved in the sale or possession of drugs. Licensee Chase had signed up for the voluntary Responsible Vendors Program, which went into effect on January 1st, of which training on handling illegal drug activities on the premises is a minor component. On June 16, 1990, the building housing the licensed premises burned from unknown causes, leaving only the concrete block walls standing.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, recommended that the charge against the licensee be dismissed. RECOMMENDED this 24th day of September, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 24th day of September, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-1194 Respondent's Proposed Findings of Fact Adopted as paragraph 9. Adopted as paragraphs 1, 6, 7 and 8. Adopted as paragraphs 10 and 12. Summary of evidence. Adopted. Adopted. True, but irrelevant. True, but irrelevant. Adopted in part as paragraph 3; remainder is irrelevant. Adopted as paragraph 33. True, discussed in detail in different context. True, discussed in detail in different context. Adopted as paragraph 27. Adopted as paragraph 28. First sentence rejected as contrary to facts. Second sentence true but summarized. Adopted as paragraph 24. First sentence true but irrelevant. Second sentence, drug use by employees is discussed in detail. Adopted and discussed in detail in Conclusions of Law. Adopted as paragraph 22. Adopted as paragraphs 22 and 23. Adopted as paragraph 31. Adopted as paragraph 32. Adopted as paragraph 5. Adopted as paragraphs 2 and 34. Petitioner's Proposed Findings of Fact Adopted as paragraph 1. Adopted as paragraph 3. Adopted as paragraph 13. Adopted as paragraph 13. Adopted as paragraph 13. Irrelevant. Adopted as paragraph 14. Adopted as paragraph 15. Adopted as paragraph 16. Adopted as paragraph 17. Adopted as paragraph 18. The facts show that Krause showed Chase drugs and spoke to him about drugs when he was otherwise occupied and in ambiguous language. This does not establish that he was knowledgeable of violations occurring. Adopted as paragraph 19. Adopted as paragraph 24. Adopted as paragraph 19. Adopted as paragraph 19. Adopted as paragraph 20. Adopted as paragraph 20. Adopted as paragraph 20. Adopted as paragraph 21. Adopted as paragraph 22. Adopted as paragraph 22. Adopted as paragraph 22. Adopted as paragraph 23. Rejected as hearsay. First sentence true and adopted as paragraphs 26 and 30. Second sentence rejected as argument. COPIES FURNISHED: Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Joseph A. Sole, Esq. General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Thomas A. Klein, Esq. Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Don Reid, Esq. 605 N.E. 1st Street, Suite E Gainesville, FL 32601
The Issue The issue for consideration in this case is whether Respondent’s alcoholic beverage license Number 39-01036, Series 4-COP, for the premises located in the 900 block of Franklin Street in Tampa, Florida, should be disciplined in some manner because of the matters alleged in the Notice to Show Cause entered herein.
Findings Of Fact At all times pertinent to the issues herein the Petitioner, DABT, was the state agency responsible for the issue of alcoholic beverages licenses in Florida and the regulation of the sale and consumption of alcoholic beverages in this state. Respondent, Bay Entertainment, Inc., now known as Freedom Rings Entertainment, Inc., operated a night club, Solar, in the 900 block of Franklin Street in Tampa. There is some disagreement as to whether the facility was located at 911 Franklin Street or at 913 Franklin Street. The confusion is irrelevant to the issues for consideration since there is no indication a different club was operating at the second location, and there is no question regarding the identity or the licensure of the facility where the indicated misconduct was alleged to have taken place. The operation was licensed by the Petitioner under alcoholic beverage license number 39-01036, 4-COP. DABT S/A Elaine Paven first went to Solar on December 13, 1996 at approximately 11:55 p.m.. At the time, she was accompanied by S/A Murray and a confidential source. After paying the cover charge to the doorman, the party was directed to the second floor of the facility where the bar was located. From that location, they could look down to the first floor where another bar and the dance area were located. When Paven and her party went to the bar, she observed Tiffany Middlesexx, a transvestite and known narcotics user, sitting on the bar against the wall. Several male dancers, either wearing only a G-string or nude with a towel over their privates were performing. Paven and Murray went up to Middlesexx and asked to buy cocaine. Middlesexx asked them how much they wanted, and Paven gave the confidential source twenty dollars to buy some. The source gave the money to Middlesexx who, in return, gave the source a white powder which, in turn, was delivered by the source to Paven. All during this transaction, employees of the facility were routinely working in the immediate area. Other patrons appeared to be buying from Middlesexx as well, though Paven drew this conclusion only from her observation of individuals who approached Middlesexx as her source did. Paven has no direct knowledge of whether cocaine or any other proscribed drug was transferred from Middlesexx to the other patrons or whether money was transferred. In addition, however, as Paven and her party were leaving the club that night, she observed another known cocaine dealer, not further identified, enter the club. Paven next went to Solar on December 21, 1996. Tiffany Middlesexx was again sitting on the bar as before. Paven approached Middlesexx and asked for cocaine. In response, Middlesexx asked how much Paven wanted, and Paven transferred twenty dollars to Middlesexx. With that, Middlesexx took a packet of white powder out of the purse he/she was carrying and gave it to Paven. Paven saw several other similar transactions by Middlesexx that evening, during which Solar employees were present and could have observed them, and at no time did any club employee attempt to interfere with or prevent the purchases. That same evening, up on the second floor of the bar, Paven overheard a conversation between two other patrons who were discussing obtaining Ecstasy, also a proscribed narcotic. In addition, she observed patrons exiting the rest rooms snuffing and rubbing their noses which, to her, based on her training and experience, was indicative of drug use. Paven next went to the club on the evening of January 10, 1997, arriving just before 10:00 p.m. and staying until after midnight. During that period, however, she left for a short while and returned. Sometime that evening, during a conversation with Dennis, a bartender on the second floor, he told her that the club took a liberal and permissive approach toward drugs, and that the owner usually stayed on the first floor. Paven also went to the first floor that evening and, while in the restroom, notwithstanding signs posted prohibiting more than one person in a stall at a time, observed patrons go into the stalls in groups, and heard snuffing sounds coming from them which to her, under the circumstances, indicated the use of narcotics, usually cocaine. She did not observe and use however, nor did she confiscate for testing any of the substances involved. On her return to the second floor that evening, Ms. Paven met with another patron, identified as Darren, who spoke in general of the use of narcotics in clubs. She recalls no specific reference to the use of narcotics at Solar, however. Before she left the club that night, in another conversation with Dennis, the bartender, she mentioned she was going to get “party favors,” and he used the word, “stuff.” Both, in the vernacular of the drug milieu, relate to narcotics. That same night, though early in the morning of January 11, 1997, Paven additionally saw Tempo, also a transvestite male and a known cocaine dealer, on the second floor of the club. Another transvestite male, Gilda, was also there, at the bar, with Tony, who identified himself as an off-duty employee there, at the time, as a patron. Paven approached Tempo and offered him/her $20.00 for which, in return, she received a plastic bag of a substance later identified as cocaine. Dennis, the bartender, was standing behind the bar right there and, in Paven’s opinion, could not have failed to observe the transaction occur. Tony was, in fact, not an employee. He had been employed at the club as a bar back before the club opened for business but was injured within the first few minutes on the job and never returned to work. Agent Paven again went to the club at 10:45 p.m. on January 17, 1997, but left shortly after arriving and did not return until early on the morning of January 18, 1997. At that time Dennis was on duty as bartender and a group of individuals, known to Paven as drug dealers, including Tempo, Tony, and Brittany, were also present. At approximately 1:15 a.m. that morning, while up on the second floor, Paven was approached by Tony who told her he was leaving and offered to get her “something” before he left. Paven gave Tony $20.00, after which he went over to a group at the end of the bar and immediately came back with a bag of a powdered substance which he gave to her. He then asked her to save him a “bump,” which, in the drug culture, means a hit of cocaine. That same evening, Paven observed three male dancers performing down on the first floor. Two of these were nude. As she watched, she saw patrons approach the dancers and give them tips to be allowed to fondle their private parts. Dennis came downstairs while this was going on, jumped on the bar, and removed his shirt, and lowered his pants to reveal his buttocks and, presumably, his genitals, to the patrons. Dennis admits to climbing on the bar, removing his shirt, and displaying his buttocks, but denies revealing his genitals. Paven also observed some of the dancers leave the stage and approach patrons who would then touch the dancers’ genitals. Galiano, a known cocaine user, was there that night, going back and forth from Tempo to Brittany, and into a back room reserved for employees. Paven observed her at the time, snuffing and rubbing her nose, though she did not observe any direct use of any substance. Later that evening, in a discussion with Paven at the bar on the second floor, Galiano denied having any cocaine to sell but offered Paven a line of cocaine if she would come downstairs to the restroom. When Paven went downstairs with Galiano, she was given the line of substance, thereafter pretending to use it but in reality not doing so. While on the first floor, Paven asked Tempo if she had any coke. In response, Tampo said she was out, but had an order for more in and was waiting for delivery. On January 25, 1997, Paven was in Solar looking for Tiffany Middlesexx. Tony approached her and asked if she wanted any cocaine. Paven said she did and gave Tony $20.00. Approximately five minutes later, Tony came back and gave her a bag with a substance in it which was purported to be cocaine. He then suggested he and Paven go somewhere for a “bump.” Taking Paven upstairs, Tony then poured some of the substance out onto the back of her hand for her to snort it. He did the same for himself and actually ingested it, while Paven dumped hers out. That same night Tony told Paven not to go to a second bar mentioned because a raid was planned. Also the same night, Tiffany Middlesexx and Tempo were present at the club, as was the club’s chief of security, Tim, who was known to Paven as a drug dealer. Paven also observed nudity by the dancers, and sexual fondling of the male dancers for tips by some patrons, and she heard discussions between patrons about getting cocaine from elsewhere, but she did not observe any transfers take place. Agent Paven returned to the club on January 28, 1997, a slow night for business. She observed one of the male dancers dancing on top of the first floor bar and witnessed several instances where the dancer squatted in front of a patron who, it seemed to Paven, committed fallatio on him in front of other patrons. This was repeated with several patrons while Paven, as well as Agent Murray, who was also present, watched. Paven brought this to the bartender’s attention, but the bartender denied seeing anything untoward. On February 1, 1997, at approximately 1:34 a.m., Paven again entered Solar and proceeded to the first floor bar area. Tiffany Middlesexx was again sitting in his/her regular spot on top of the bar, and Paven asked if he/she had any cocaine for sale. In response, Tiffany Middlesexx offered Paven three bags for $50.00 or single bags for $20.00 each. When Paven handed over $50.00, Middlesexx opened up his/her purse and took out three bags of cocaine which was transferred to Paven. All this time, another patron was waiting and made a purchase when Paven was through. Paven also observed several other identical transactions take place with other patrons that same evening though she cannot say with certainty what substance was passed. Since the procedure was the same, it is likely the substance transferred to the other patrons was also cocaine, and it is so found. Middlesexx subsequently left the premises while Paven was still there. On February 8, 1997, Paven went back to Solar, arriving at 12:45 a.m. She went to the first floor and again observed Tiffany Middlesexx sitting in the regular spot on the bar. Paven approached Middlesexx and asked for cocaine and subsequently gave Middlesexx two $20.00 bills, in return for which she received two bags of cocaine. At this time, other employees of the Respondent were present behind the bar, and in Paven’s opinion heard and observed the transaction. Paven also watched a white male buy four bags of apparent cocaine from Middlesexx from no more than five feet from where the transaction took place. After making his purchase, that same white male showed the bags he had purchased to his friends and the group departed. Later that evening, on the second floor of the club, Paven purchased one zip-lock bag of what appeared to be cocaine from Tempo because Tempo did not want to deal on the first floor. Paven paid Tempo $20.00 for it. At no time during any of the above mentioned visits did any of the Respondent’s employees or management try to stop the purchases. The only warnings Paven heard were to watch out for the police. Paven claims she didn’t see any signs prohibiting drug activity in the club, nor did she observe club employees prohibit sales to other patrons. On any given night she was there, Paven would observe six or seven individuals on the premises who were known to her, from prior buys or sales, some of which took place within Solar, to be drug dealers. The parties stipulated that the substances purchased by Paven from individuals inside the club was cocaine. While Paven denied seeing any signs prohibiting the use or sale of drugs in the club other than in the restroom, she admits there were some signs at the entry, but even then, she cannot be sure of what the signs there said. Another sign in the bathroom prohibited more than one person in a stall at the same time. There is no doubt that the noise level in the club when the music was playing and the club was full was considerable. Club employees contend that it would have been impossible for them to hear any of the conversations between Paven and any of the individuals from whom she bought drugs because of it, because they even had to bend over the bar to hear patrons’ orders for drinks. However, Paven and Murray both insist they were able to hear and contend the bartenders, while possibly not able to hear the exact conversations taking place during the buys, could not have failed to observe what was going on. The noise certainly did not dissuade anyone from buying or selling. In addition, Paven observed security personnel hired by management passing through the club from time to time. These individuals would stop and talk to patrons and would attempt to prevent patrons from jointly occupying the restroom stalls. This served to halt drug sales while the security officer was present, but the activity resumed when the officers left. Most of the drug transactions which took place between Agent Paven and Middlesexx or Tempo were witnessed from three to four feet away by Agent Murray as well. Murray notes that whenever Paven tried to make a buy from Middlesexx, there was always someone in line before them, and Murray also observed what appeared to be drug purchases by other patrons from Middlesexx. Usually a bartender was in the immediate area of the purchase transaction. Murray cites, by way of exception, the incident on January 25, 1997, when Tony took Agent Paven to another area of the bar. Though Murray observed anywhere from six to seven drug dealers on the premises, known to her as such from prior investigations, at no time did she ever see an employee of the club, or a member of management, try to interfere with a transaction, nor did anyone ever state that such activity was illegal. It seemed as though the only concern expressed by anyone employed by the club related to the potential for the use of undercover police. Murray also observed male dancers at the club engaged in conduct which, it appeared to her, was salacious and obscene. It appeared to her than some patrons committed actual acts of fellatio on the dancers who would squat on the bar or dance floor in front of them. On at least one occasion, Murray changed her location at the bar so as to be able better to see what was going on. In her opinion, there was no doubt as to the nature of the activity. Notwithstanding the allegations of both Paven and Murray regarding the obscene activity, Diane M. Smith, the owner of the dance group which performs at Solar, categorically denies that any such activity took place involving her employees. Normally, she claims, she was present whenever her dancers performed. At any given time, she had three dancers active. One was on the center podium, one on one of the bars, and one was on break. Her dancers would wear jeans for the first set and shorts, or possibly a T-back, for the second set. She adamantly asserts there was no nude dancing or lewd or lascivious conduct permitted. She would not permit it, and management knew that. Her dancers performed from approximately 11:30 p.m., until 2:00 a.m., and at all times, there were two chaperones present. She was also often present before and after the show, and she never saw any conduct as described by Paven or Murray. This relates to drug activity as well as activity regarding the dancers. In fact, she claims, management made it very clear that drug activity was not permitted in the club. Jeffery Winemiller, who has a college degree and who attended medical school for two years before personal commitments brought him back to the Tampa area from California, was working at Solar as a bartender the night the Emergency Order of Suspension was entered. Mr. Winemiller has attended Responsible Vender training several times and is aware of how to check among patrons for drug use and abuse. He usually worked on the first floor at the rectangular bar on Friday and Saturday nights, and occasionally on other nights as well. Mr. Winemiller contends that while he worked at Solar, he never witnessed any drug activities or any oral sex being conducted on the premises. He claims there were signs at the front door and in the rest rooms warning against the use of drugs in addition to signs prohibiting entrance to persons under age and prohibiting more than one person in a restroom stall at any one time. Neither the men’s nor the women’s restroom had entry doors. Only the women’s restroom had doors on the stalls. Tiffany Middlesexx is a known drag queen - a performer in his/her 50’s, who is very well known in the transvestite community. Whenever he/she comes into Solar, he/she would have an entourage of from three to six people with him/her. Middlesexx would usually position himself/herself on the L-shaped bar on the first floor across from the dance podium on a space which was cleared for him/her. According to Winemiller, normally a bartender would not be working in that immediate location. As Winemiller recalls, Friday nights are rather quiet until after midnight, when up to seven hundred people might be in the club. During the period from midnight to club closing, a bartender might serve several hundred drinks and would be too busy to note what any particular patron was doing. In addition, as he described it, the noise level was high, and he would not be able to overhear any patron conversations. Specifically, Winemiller contends, he did not see Middlesexx or any of the other dealers described by Paven and Murray sell drugs in the bar, nor did anyone ever tell him anyone was selling drugs. As told to him, ownership policy on drugs was no tolerance. Any drug activity was to be reported to management or to security. By the same token, no lewd sexual activity was permitted either. Mr. Winemille claims he does not know Tiffany Middlesexx, Tony, or Tempo to be drug dealers. He claims not to use drugs himself and professes not to know who does. As a result of this raid and the closing of the club, he is now out of a job. In addition, his loan of $35,000 to Mr. Engerer to start up the operation is in jeopardy, though Winemiller contends he is not concerned about this. Donald Bentz, an employee of the Tampa AIDS Network has been in Solar on several occasions as a part of his work. He knows Mr. Engerer well and was a regular customer from May 1996, when the club opened, until it closed. During that period, he went there at least once a week and claims he never saw drug activity or lewd acts being carried on there. Mr. Bentz goes to several gay-oriented clubs as a part of his job and has put on fund raising functions with some of them. Because of his organization’s non-profit status and the thrust of its activities, it is careful with whom it operates and carefully checks out any operation before becoming involved with it. Mr. Bentz knows Tiffany Middlesexx as a transgendered performer who is popular in the gay/transgender community. On several of the occasions when he has been at Solar, Mr. Bents has seen signs permitting only one person at a time in the rest rooms and recalls seeing a sign stipulating no drugs allowed at the entrance. In addition, he has seen security personnel routinely checking for drugs. Though Bentz has heard rumors that Middlesexx deals drugs, he claims never to have seen it at Solar nor did he ever see anyone do or talk about illicit drugs on the premises. In his opinion, both Mr. Engerer and Mr. Winemiller considered drugs to be out of bounds at Solar. They wanted a long-term, drug-free relationship with the gay community. In Bentz’ opinion, if either member of management heard of drugs or lewdness going on at Solar, it would have been stopped. Dennis Fleming worked part time as a bartender at Solar between August 1996 and February 1997, usually on Friday and Saturday nights, and on a couple of evenings during the week. He, too, took Responsible Vendor training. As he recalls it, the noise level in Solar when it is crowded is very high, which makes it impossible to overhear patrons’ conversations. He knows Tiffany Middlesexx, who usually sat not far from where he worked the bar. During all the time Fleming worked at Solar, he claims, he never saw Middlesexx sell drugs to anyone inside or near the club. Though he knows Tony from that individual’s brief employment at the club and his subsequent patronage, he doesn’t know if Tony deals drugs The same is true for Tim. Fleming claims not to know Tempo. His periodic conversations with management reinforced the explicit no-drug policy which is expressed to the public by the signs posted about the building. Though he admits to having danced at the club, removed his shirt, and unbuttoned his pants, he denies having ever removed his pants or lowered or removed his underpants. Steven Stamberger was employed at night as a security officer at Solar from July 1996 to its closing. His post was at the entrance door where he checked identification for age and searched back packs of patrons to look for contraband. According to Mr. Stamberger, while doing this he never discovered any drugs being carried by any patrons. Mr. Stamberger also contends there were signs posted at the front entrance which indicated that drugs were not allowed on the premises. There were also signs in the bathrooms to that effect. From time to time each night he would walk through the club on the way to the bathrooms, and he claims never to have seen any drug activity during any of those walk-throughs. He also admits to knowing Tiffany Middlesexx and Tempo but denied knowing whether either sold drugs. He claims no one discussed it with him, but he knows that drugs are not tolerated on the premises. Mr. Stamberger recalls having seen an act of oral sex being committed in the VIP room one time. When he saw it, he went over to the parties, interrupted the activity, and put them out of the club for the evening. To his knowledge, they were not barred from the club for this. He denies, however, having ever seen any of the dancers disrobe or allow patrons to touch their genitals for tips in the club. In 1996, Mr. Engerer, the owner and sole officer of the corporation which operates Solar, invested $50,000 the company. This money came from his 401(k) plan and his stock investments. At the time, he claims, he had very little experience in nightclub operation, and when he took over, he hired a firm to provide Responsible Vendor training to him and his staff before he opened. Mr. Engerer worked every Friday and Saturday nights and, in addition, occasionally also went in during the week. On the weekends, he would open the club, set up the bar, and work at bar three as a bartender. Bar three is where Tiffany Middlesexx generally sat. It has two cash registers -- one at the “L,” and one at the far end. He worked at the far end. Engerer knew Tiffany Middlesexx from his/her performances at other clubs, but asserts he had no knowledge of that individual’s dealing in narcotics, either before or after he bought the club. He claims he never saw any drug deals take place in the club. Engerer claims not to have known Tempo or anything about him/her before or after he bought the club, especially about drug activity. Mr. Engerer admits to knowing Tony, who was recommended to work at Solar because of his prior experience at other clubs. However, Tony was injured the first night on the job and never actually worked there. Engerer claims he had no idea Tony dealt drugs, nor did he ever see Tony deal at Solar. Club policy, according to Mr. Engerer, which he claims he expressed to all employees, is that there is a zero tolerance for drugs, and patrons and employees are to be evicted or fired for possession of unlawful drugs on the club premises. With the large crowds they get on the weekends, he claims it was very hard to hear, especially for the bartenders who worked at least three feet from the patrons. Mr. Engerer claims that signs given to him by the Responsible Vendor trainers were posted throughout the club: at the front door, at the top of the stairs to the second floor, downstairs in the bar, and in each restroom. He had several security people on the floor on the weekends to ensure there was no drug activity in either the bar areas or the restrooms. According to Mr. Engerer, he had no prior indication from the Division or other police agencies that they had any suspicion of ongoing drug activity, nor had he heard of any prior complaints about his establishment. Club policy also prohibited lewd activities, and Engerer claims he had no knowledge of such conduct going on there. He did not ignore it nor would he condone it, he claims. Mr. Engerer also claims he was never told by anyone that Tiffany Middlesexx, Tempo, or anyone else, for that matter, was selling drugs in Solar. The first he knew of any of it, he asserts, was when the Emergency Order of Suspension was served. Had he known Tim was selling elsewhere, Tim would have immediately been fired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking Respondent’s 4-COP alcoholic beverage license number 39-01036, for the premises located at 911-913 Franklin Street in Tampa, and imposing an administrative fine of $5,000. DONE AND ENTERED this 13th day of August, 1997, in Tallahassee, Leon County, Florida. _ ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1997. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Joseph L. Diaz, Esquire 2522 West Kennedy Boulevard Tampa, Florida 33609 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Linda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue This case concerns the issue of whether Respondent's beverage license should be suspended, revoked or otherwise disciplined for permitting prostitution activity on his licensed premises. At the formal hearing the Petitioner called as witnesses John Harris, Kelvin Davis, Carlos Bauxalli, Lewis Terminello, Hugo Gomez, Louis Viglione, Keith Bernard Hamilton, and Alfonso Scott Julious. Respondent called as witnesses Isaac Dweck, Gary Arthur, Irene Madden, Collins Jones, Mary Scott, Debbie Heenan, Judy Pearson, Joe E. Clements, Cecil Rolle, and the Respondent himself, Eddie Lee Pittman. Petitioner offered and had admitted a videotape which was viewed during the hearing. Respondent offered and had admitted one exhibit. Petitioner also offered a composite exhibit containing police reports relating to the licensed premises for the years 1981 and 1982. That composite exhibit was admitted as hearsay to corroborate the testimony of the police officers relating to the reputation of the licensed premises. These police records were of very limited probative value and no finding of fact was based upon these records. Neither party submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer.
Findings Of Fact At all times material to this proceeding the Respondent, Eddie Lee Pittman, was the holder of beverage license No. 23-371, Series 2-COP. The license is issued to the licensed premises at 1772 N.W. 79th Street, Miami, Dade County, Florida, and was originally issued to Respondent on October 6, 1965. On the evening of March 22, 1983, Beverage Officer Kelvin Davis visited the licensed premises, Eddie's Dive Inn, in an undercover capacity to investigate possible prostitution activity in the licensed premises. Officer Davis was accompanied by Beverage Officer Eddie Bauxalli. After entering the licensed premises Officer Davis was approached by a white female named Elnora Moore who engaged him in conversation. The conversation led to a discussion of voter registration cards and Ms. Moore stated that a voter registration card could get you out of jail on a misdemeanor charge. Officer Davis asked why she needed a card for that purpose and Ms. Moore said because of solicitation. She then asked Officer Davis if he would like to be solicited and asked how much money he had. He responded that he had twenty dollars and she said that would get him a "straight." "Straight" is slang or street language for sexual intercourse. He agreed to the price but told her he also had a friend (Officer Bauxalli). Ms. Moore offered to service both men for $100. Officer Davis and Officer Bauxalli agreed to this offer and the three of them prepared to leave. The conversation between Ms. Moore and Officer Davis took place next to the bar where the officers were seated. This was approximately three to five feet from the cash register where the bartender on duty was working. The conversation took place in a normal tone of voice. As Officers Davis and Bauxalli and Ms. Moore began to leave, a white female named Peggy Schultz yelled across the bar to Officer Bauxalli and asked where he was going. Officer Bauxalli yelled back that he was going to have a good time. In response, Ms. Schultz yelled back "How can you have a good time without a date?" Officer Bauxalli responded that he would figure something out. At this point Ms. Schultz walked over to Officer Bauxalli. Ms. Schultz asked Officer Bauxalli if he wanted a "date" and he asked what is a "date." She responded that a "date" is a "straight" for $20 or a "straight" and a "blow job" for $25. He agreed to a "date" and Ms. Schultz then told him to drive around to the back and she and Ms. Moore would meet them at the back door. She also stated that the owner did not like the girls to go out the front door. Officers Bauxalli and Davis then left the bar, drove around to the back door of the licensed premises and picked up Ms. Moore and Ms. Schultz, who were waiting just inside the back door of the lounge. While Officers Bauxalli and Davis were in the licensed premises, the bar was pretty crowded and there was a lot of noise from people talking. At the time Ms. Schultz solicited Officer Bauxalli, she spoke in a normal tone of voice while they stood approximately four or five feet from the cash register on the bar. Ms. Schultz was dressed in a low-cut blue silky dress that was made of a material which you could easily see through. She was wearing only panties underneath the dress. The owner, Mr. Pittman, was observed in the licensed premises on the evening of March 22, but there was no evidence that he observed or overheard any of the discussions between the two beverage officers and Ms. Schultz and Ms. Moore. On the evening of September 17, 1983, at approximate1y. 10:A5 p.m., Beverage Officer Louis J. Terminello went to the licensed premises in an undercover capacity. Immediately upon entering the licensed premises he was approached by a white female named Michelle Orfino. The bar was pretty crowded and there were a number of females in the bar and poolroom area who by their dress appeared to be prostitutes. These women were mingling with the men at the bar and in the poolroom area. A number of couples were exiting through the back entrance. When Ms. Orfino approached Officer Terminello, she walked up to him and asked if he was looking for a "date." He asked her what a "date" was and she said "a blow job." She then asked if he wanted one and Officer Terminello responded "yes." She told him the price would be $20 plus $5 for the room. As they had been talking Officer Terminello, accompanied by Ms. Orfino, walked into the poolroom area. After agreeing to the price, Officer Terminello took Ms. Orfino by the arm and started to walk out the front door of the lounge. She stopped him and said that they had to use the back door because Eddie does not allow them to leave through the front door. She then told him to drive around back and Officer Terminello responded that his car was just outside the back door. She then walked with him out the back entrance and into the parking lot. As they walked to his car Officer Terminello observed the Respondent, Eddie Pittman, in the parking lot. After driving away, Officer Terminello placed Ms. Orfino under arrest. Ms. Orfino was dressed in a very low-cut latex body suit. For at least three nights prior to September 17, Officer Terminello, while on surveillance, had observed a continuous pattern of a patron entering the bar, coming back out and driving his car to the rear entrance. A woman would then come out the back door, get in the car and they would drive away. Twenty minutes or so later the car would come back and the girl would get out and go back in. After the arrest of September 17, Officer Terminello returned to the bar in the early morning hours of September 18 to arrest two other women for prostitution. The Respondent had not been advised of the arrests on September 17. On the evening of September 15, 1983, Beverage Officer Louis Viglione went to the licensed premises, Eddie's Dive Inn. After entering the licensed premises he took a seat at the bar near the rear entrance. Shortly after entering, he was joined by two black females named Veronica and Angie. He purchased a beer for each of the two women and the three of them engaged in conversation about good times, good loving, and Pink House. The Pink House is a boarding house in the area where the licensed premises is located and is used by prostitutes for "dates." A "date" is a slang or street term used commonly by prostitutes to refer to sexual intercourse or other sexual acts for pay. During this conversation, Veronica stated that one hour with her would cost $40 or $50 and Angie stated that she charged $100 an hour. As an excuse, Officer Viglione then stated that he did not have enough money because he wanted two women at once. He remained in the lounge approximately one more hour and left. On this particular evening Veronica was wearing a short white dress and Angie was wearing a blue print dress with white stockings. Both were dressed in what Officer Viglione described as normal dress. Several other women in the lounge were dressed in a very provocative manner and appeared by their dress to be prostitutes. The lounge was approximately 3/4 full of patrons, but it was not particularly noisy or boisterous. There were also several women outside the front and rear entrances of the licensed premises who appeared to be prostitutes. The area where the licensed premises is located is an area which has a visible concentration of prostitutes and has a reputation as an area where prostitution is prevalent. At approximately 9:30 p.m. on September 16, 1983, Beverage Officer Keith Bernard Hamilton entered Eddie's Dive Inn. Upon entering the lounge, Officer Hamilton took a seat at the west end of the bar. There were approximately 40 or 50 male patrons in the lounge and at least 30 women. The women were scantily dressed in very revealing clothes and were observed by Officer Hamilton to be moving around the bar stopping and talking with the men. Several of the women left the bar after talking to one of the men who also left the bar. While seated at the bar, Officer Hamilton was approached by a young black female named Anna. Anna had been talking to a white male seated next to Officer Hamilton. She asked Officer Hamilton what he was interested in tonight. He asked what she had and she asked if he wanted to fuck. She also stated that for $35 plus $5 for the room she would give him a "suck and fuck." He said he would wait for a while and Anna left but returned several times during the evening. After Anna left, another woman walked up to Officer Hamilton and asked if he dated. He was short with her and she moved over and began talking to the white male seated next to him. A few minutes later, Officer Hamilton went to the bathroom and was stopped by a black female named Carol Lawrence. Ms. Lawrence stated that she needed money and asked if he could help her out. Officer Hamilton asked what did she have and Ms. Lawrence responded "a suck and fuck for $35." Officer Hamilton agreed to this but said he wanted to wait a while. She then left, but approached him at least three more times that evening. On the evening of September 16, 1983, there were three security guards at the licensed premises. They primarily remained outside where they regulated the crowd outside the lounge. One of the guards told one of the females that she shouldn't leave with a guy but should wait inside the rear door. The guard did not object to the woman and man leaving in the man's car. On this particular evening, the Respondent was present at the licensed premises until approximately 11:00 p.m. He was in and out of his office during the course of the evening. On September 17, 1983, at approximately 9:30 p.m. Officer Hamilton returned to the licensed premises, Eddie's Dive Inn. When Officer Hamilton entered the lounge, the Respondent was seated at the bar. The activity in the bar was about the same as the night of September 16, and there was a smaller crowd. There were about 20 women in the bar. These women were walking around the bar talking to the men. There was a man seated next to Mr. Pittman who was being kissed by one of the women. After kissing the man she moved on and began talking to another male patron. Shortly after entering the lounge one of the women in the lounge looked at Officer Hamilton and winked. Later, when Officer Hamilton was in the rear of the lounge near the bathrooms, be observed this same woman standing near the rear entrance. He asked her where she was going and she responded that she would be back. She then offered him a "suck and fuck" for $20 plus the cost of the room. As she walked out the rear entrance Officer Hamilton agreed to the offer. That same evening Officer Hamilton was again approached by Anna whom he had met the previous evening. She asked if he was ready and again told him the price of a "suck and fuck." He agreed and she told him to leave out the front door and she would wait around back. Officer Hamilton left the lounge and drove his car to the rear entrance where Anna was waiting just inside the screened door of the back entrance. On the evening of September 15, 1983, at approximately 9:15 p.m., Beverage Officer Alfonso Scott Julious entered the licensed premises. There were several men seated inside the bar and several women were walking around the bar. The women were dressed casually and some were wearing short dresses which were low cut in the front. After entering the licensed premises Officer Julious observed women from time to time leave the bar with a man and then come back. Each of the women exited through the rear door. At approximately 9:45 p.m. Officer Julious was approached by a white female named Gail Sylvia James. She asked if he wanted a "date" and he said what is a "date." She then said that she would "fuck him and suck him" for $30. He responded that he would be around for a while and would get back to her. Officer Julious left the lounge at approximately 10:30 p.m. During the evening Officer Julious had overheard other men being solicited and observed at least five men leave with women. On this evening Officer Julious considered the women's dress to be casual, nice dresses. Officer Julious returned to the licensed premises at approximately 9:00 p.m. on September 16, 1983. After entering the lounge he was approached by a white female named Patricia. She asked him if he wanted a "date" and he asked "what is a "date?" She then said she would fuck him for $30. Officer Julious responded that he would be around and would get back to her. Some time later in the evening Gail James, whom he had met the previous night, approached Officer Julious and asked if he was ready for a "date." She said she would go half and half, "suck and fuck" for $30. He told her he would be around for a while. Officer Julious was also approached by a woman named Mindy Jo Gelfin, who asked if he wanted a "date." He asked "What is a date?" and she responded "half and half, fuck and suck" for $40. He also did not accept this offer. Officer Julious left the licensed premises at approximately 10:45 p.m. On Saturday, September 17, 1983, Officer Julious returned to the licensed premises at approximately 9:05 p.m. The Respondent, Eddie Lee Pittman, was in the lounge. Immediately after entering the licensed premises, Officer Julious was approached by Mindy Gelfin, who asked if he was ready for a "date." Officer Julious stated that he would be around all night and Mindy said she would come back. Later, Mindy returned and asked if he was ready and he responded "yes." He asked if they could go to the Holiday Inn and she asked if he was a cop. Officer Julious said "Do I look like a cop?" She then asked if she could pat him down. He said "yes" and she patted him down. She then said that she wanted to go in a friend's car. She borrowed the car and drove to the Holiday Inn where she was arrested. At the time of her arrest Mindy Jo Gelfin was residing with Collins Winston Jones and his girlfriend. At the time of the final hearing, Mindy Gelfin was continuing to live at Mr. Jones' residence. Mr. Jones' girlfriend had allowed her to move in. Mr. Jones is the manager of Eddie's Dive Inn. On September 29, 1983, Detective Hugo Gomez of the Metropolitan Dade County Police Department went to the licensed premises, Eddie's Dive Inn. Detective Gomez was accompanied by Detectives Manny Gonzalez and Ray Gonzalez. Detective Gomez stood at the west end of the bar and his two partners sat at the bar next to him. After they ordered a beer, they were approached by a white female named Catrina Gibides. She sat down between the two officers who were seated. She asked what they were doing and told Detective Gomez he looked like a cop. He then pulled up his pants legs to show he was wearing no socks and she said "you can't be a cop" and grabbed his groin. She then began playing with Manny Gonzalez's leg and asked if they wanted a "date." She was wearing a very loose chiffon type outfit and her breasts were barely covered. The officers who were seated had been pretending not to speak English and Ms. Gibides asked Detective Gomez to ask Manny Gonzales if he wanted to go across the street to a motel with her. She said that she would perform intercourse and fellatio for $25 plus $5. She then called over another white female named Lisa Brown, who also began talking about going across the street to a motel. Lisa Brown said her price was $25 plus $5 for the room. They then discussed going in different cars. During these conversations the bar was crowded and Eddie Pittman was in the lounge approximately 8 to 10 feet from where the officers were located. It was pretty loud in the bar. There were also barmaids working behind the bar. Isaac Dweck is a regular patron of Eddie's Dive Inn. He goes there primarily on Sunday afternoons to watch football and shoot pool. He is almost never in the licensed premises after 9:00 p.m. and averages going to the lounge four or five times a month. He has never been solicited for prostitution in the lounge and has never overheard someone else being solicited. Gary Arthur goes to Eddie's Dive Inn two or three times a week and generally leaves some time between 7:30 and 9:00 p.m. Once or twice he has stayed until 11:00 or 12:00 p.m. He has never been solicited for prostitution and has never overheard anyone else being solicited. He has been going to Eddie's Dive Inn for five or six years. The Respondent has a policy against drugs, fighting, solicitation, and profanity and also has a dress code. He employs 11 full-time employees at the lounge and three or four of these employees are security guards who work at front and back doors. The Respondent has a closed circuit television system with cameras on the cash register and pool room area. The screen is in Respondent's office. Over the past 12 years the manager, Collins Jones, has barred 12 or 13 women from the bar after he heard them soliciting in the bar. In the twenty years he has operated Eddie's Dive Inn, the Respondent has barred approximately 20 women from coming into the licensed premises because of prostitution. Once the women are arrested for prostitution, they are barred from the premises. There are signs posted in the bar prohibiting soliciting. Irene Madden works as a barmaid at Eddie's Dive Inn. She has been instructed to not serve known prostitutes and that if she heard someone soliciting she should diplomatically ask them to not do that and inform Mr. Pittman or the manager. Mary Scott works as a barmaid at Eddie's Dive Inn. She has heard women solicit in the lounge for prostitution. She does not have the authority to ask someone who solicits for prostitution to leave the premises. She does have authority to ask people to leave who are in violation of the dress code. In September, 1972, the Respondent was charged in an administrative proceeding against his license with permitting prostitution on the licensed premises. He was also charged criminally with permitting prostitution. Respondent paid a $350 administrative fine and his license was placed on probation for the remainder of the license year. He pleaded guilty to the criminal charge.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered finding the Respondent in violation of Section 561.29, Florida Statutes, and imposing a civil penalty of $1,000 and suspending Respondent's beverage license for a period of ninety (90) days. DONE AND ENTERED this 9th day of November, 1983, at 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 9th day of November, 1983. COPIES FURNISHED: William A. Hatch, Esquire Gary R. Rutledge, Secretary Department of Business Department of Business Regulation Regulation 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Arthur M. Garel, Esquire 40 Southwest 13th Street Miami, Florida 33130 Howard Milan Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Respondent, Steve Martin, d/b/a The Hustler Bar, held alcoholic beverage license number 68-929, series 2-COP, for licensed premises located at 5748 Swift Road, Sarasota, Florida, at all times relevant to the charges contained in the Notice To Show Cause and at the time of the final hearing. On November 10, 1984, Respondent received an official notice from the Division that charges would be filed against him for violations of Chapter 893, Florida Statutes. On January 11, 1985, Deputy Sheriff Bernie Vanderweert entered the licensed premises of The Hustler Bar. He observed patrons engaged in playing pool for money in the presence of the bartender Jim Sealmayer. Deputy Vanderweert played pool with bartender Sealmayer for $1.00 to $2.00 a game. On January 17, 1985, Deputy Venderweert again observed patrons playing pool for money inside the licensed premises of The Hustler Bar. The pool table was in view of the bar, where bartender Dory Korowold was on duty. Deputy Vanderweert played dice at the bar with bartender Dory for drinks. On January 18, 1985, Deputy Vanderweert played the game of pool with various patrons for money. He additiogally gambled with bartender Jim Sealmayer on the pool table. On January 24, 1985, Deputy Vanderweert observed patrons playing pool for money inside The Hustler Bar and himself gambled on the pool table with patron Greg Sullivan. On January 29, 1985, Deputy Vanderweert gambled on the pool table with other patrons inside the licensed premises of The Hustler Bar while bartender Dory was on duty. On January 31, 1985, Beverage Investigator James Woodrow visited the licensed premises of The Hustler Bar. He overheard licensee Steve Martin discuss wagering on games of pool with a patron named Leo. Martin and Leo agreed to play pool for $25.00 a game. Investigator Woodrow observed Martin and Leo playing pool, but did not actually see an exchange of money. On February 5, 1985, Deputy Vanderweert observed patrons gambling on games of pool inside the licensed premises of The Hustler Bar and himself wagered on a game of pool with patron Greg Sullivan. Dory Korswald was on duty behind the bar during this activity. Deputy Vanderweert observed the bartender Dory smoke a marijuana cigarette inside the premises with several patrons. Vanderweert approached Greg Sullivan and asked if he had a marijuana cigarette. When Greg responded that he did, Vanderweert purchased a marijuana cigarette from him while seated at the bar in the vicinity of bartender Dory and other patrons. On February 7, 1985, Deputy Vanderweert gambled on games of pool with patron Sullivan for $1.00 to $5.00 a game while on the licensed premises of The Hustler Bar. Deputy Vanderweert overheard licensee Steve Martin attempting to induce a patron to play the game of pool with him for $1,000.00 per game. When the patron would not play for that amount of money, Martin and the patron played games of pool for $5.00 to $10.00 a game. Vanderweert purchased marijuana from patron Greg Sullivan while they were seated at the bar. Respondent was present in the bar at the time of the transaction. On February 14, 1985, Deputy Vanderweert played games of pool with patron Sullivan for $5.00 to $10.00 a game. Respondent Steve Martin was present during the gambling and was aware that gambling was taking place. Investigator Woodrow observed Sullivan produce a package of marijuana while he was standing at the bar. Sullivan asked the bartender Maggie and the officers if they had rolling papers but received negative replies. On February 19, 1985, Deputy Vanderweert observed Greg Sullivan obtain cigarette rolling papers from bartender Dory Korswald and smoke a marijuana cigarette with her while inside the licensed premises of The Hustler Bar. While Vanderweert and Sullivan were seated at the bar in the presence of bartender Dory, Vanderweert purchased a plastic baggie of marijuana and a plastic baggie of cocaine from Sullivan. On February 21, 1985, Investigator Woodrow was approached by Sullivan inside the licensed premises of The Hustler Bar and asked if he would like to buy cocaine. Sullivan delivered a plastic package of cocaine to Woodrow while they were seated at the bar. Respondent Martin came into the bar during the negotiations and was seated three seats away at the time of the transaction and bartender Dory Korswald was on duty behind the the bar. On February 26, 1985, Deputy Vanderweert played games of pool with patron Greg Sullivan for money. While Vanderweert was seated at the bar, he purchased a plastic package of suspected cocaine from patron Sullivan while bartender Dory Korswald was on duty behind the bar. But the Division never proved that the substance was cocaine. On February 28, 1985, Deputy Vanderweert engaged in playing pool for money on the licensed premises of The Hustler Bar. Vanderweert observed bartender Dory Korowald smoke a marijuana cigarette with patrons inside the premises. Investigator Woodrow observed Greg Sullivan produce a baggie of marijuana and roll a marijuana cigarette while he was seated at the bar. After Sullivan finished rolling his cigarette, Vanderweert purchased the remainder of the baggie of marijuana from him. Woodrow purchased a plastic package of cocaine from Sullivan while they were seated at the bar in the presence of bartender Dory Korawald. On March 5, 1985, Investigator Woodrow purchased from patron Greg Sullivan, inside the licensed premises of The suspected LSD. The transaction took place at the bar. However, the Division could not prove that the substance was LSD. On March 7, 1985, Deputy Vanderweert purchased from patron Sullivan, inside the licensed premises, what was described to him to be two hits of LSD. Again, the Division could not prove that the substance was LSD. On March 11, 1985, Investigator Woodrow purchased from patron Sullivan what was described to him to be two hits of LSD inside the licensed premises of The Hustler Bar. Respondent Martin was seated at the bar during the transaction. Again, the Division could not prove that the substance was LSD. Respondent Martin works at the licensed premises of The Hustler Bar between 11:00 A.M. and 3:00 P.M. every day, but is seldom there at night. He has never seen or possessed illegal drugs inside the bar. He is aware that patrons gamble on the pool tables and has done so himself. He stopped all gambling on the tables after charges were brought by the Division. Respondent cannot afford a manager and has only two full time employees, with one additional fill in. He does not require his employees to fill out an employment application and cannot remember if he checked his employees' prior employment records. He has no signs posted concerning drugs but does have posted a letter from the Division of Alcoholic Beverages and Tobacco. Respondent was told by employees and customers that Greg Sullivan was involved in drug transactions and barred Sullivan from the premises. No evidence was presented as to what, if any, changes were made in Respondent's management of the premises after he received notice in November 1984 that drug transactions were alleged to have occurred on the premises.
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 68-929, Series 2-COP, held by Respondent, Steve Martin, d/b/a The Hustler Bar. RECOMMENDED this 28th day of May, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1986. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301-1927 Craig Soria, Esquire 766 Hudson Avenue Suite B Sarasota, Florida 33577 Lt. Tom Ewing 2665 Cleveland Avenue Ft. Myers, Florida 33482 James Kearney, Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301-1927 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 Sough Bronough Street Tallahassee, Florida 32301-1927 APPENDIX TO RECOMMENDED ORDER IN CASE NO. 85-3914 The following are specific rulings on the parties' proposed findings of fact as required by Section 120.59(2), Florida Statutes (1985). The following proposed findings of fact submitted by Petitioner are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary: 1-5, 8, 9, 10, 12, 13, 15, and 19. Petitioner's proposed finding of fact 6 would have been included in paragraph 1 above except that the second sentence was not proved. Petitioner's proposed finding of fact 7 would have been included in paragraph 1 above except that the evidence was that other patrons, not Sullivan, were gambling with Vanderweert. Petitioner's proposed finding of fact 11 would have been included in paragraph 1 above except that it is in part subordinate. Petitioner's proposed findings of fact 14, 16, 17 and 18 would have been included verbatim in the Findings Of Fact except that the evidence never proved the identity of the alleged substances. Respondent did not submit any proposed findings of fact.
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.
The Issue Whether Respondent committed the offenses alleged in the notice to show cause and, if so, what disciplinary action should be taken.
Findings Of Fact The bar At all times pertinent hereto, respondent, Melba Mosca, held alcoholic beverage license number 23-00737, series 2-COP, for the premises known as 71 Bar and Grill (the "premises"), located at 1220 Normandy Drive, Miami Beach, Dade County, Florida. The investigation On January 28, 1994, Officer Luis King of the Miami Beach Police Department, operating undercover, entered the licensed premises as part of an investigation of illegal drug activity. The premises is a small bar, containing one main bar, a pool table, a pinball machine and a jukebox. At the time he entered, Officer King observed between 15 and 20 patrons, a female bartender, and another individual behind the bar, later identified as "Dave." At the time, Dave appeared to Officer King to be the manager or in charge of the premises since he had the keys to the register, full access to the bar and the remainder of the premises, and actively controlled the bartender and patrons. During subsequent visits, Officer King discovered that Dave was the son of the owner, respondent Melba Mosca, and his activities in the bar, from bartending, scheduling the bartenders, and ordering bar supplies and food, confirmed his employment and management status in the bar. 1/ That evening, Officer King observed one Phillipi Blanco (Flip), a known narcotics dealer, on the premises, and the pattern of his activities suggested to Officer King that Flip might be dealing narcotics. Accordingly, Officer King resolved to return to the premises on another occasion. On February 11, 1994, Officer King returned to the premises at or about 9:30 p.m., and noticed Dave, the only employee on the premises, tending the bar. Dave appeared very agitated that evening, consistent with being under the influence of some controlled substance, and exhibited some strange behavior, such as exposing his genitalia while working behind the bar. On one occasion that night, Dave locked himself in the men's restroom with unknown patrons for approximately one-half hour, leaving the bar unattended. That same evening, Officer King met with Eugene Scott, who he had met the previous night, in the men's restroom, and Scott offered to sell Officer King one plastic baggie of cocaine for $30. Officer King accepted, and paid Scott $30 in exchange for the cocaine. 2/ On February 12, 1994, Officer King returned to the licensed premises at or about 7:30 p.m. Officer King did not recall if Dave was on the premises that evening, but about 8:40 p.m. he approached Eugene Scott by the back door and asked Scott if he could purchase some more cocaine. Scott stated that he did not have any cocaine but that he did have some marijuana. In exchange for $10, Officer King purchased a baggie of marijuana from Scott. As noted, this transaction occurred near the back door, and was not observable from the bar. During the evening of February 19, 1994, Officer King returned to the licensed premises to continue his investigation. While at the premises, Officer King played pool with a patron known as Manuel Fernandez (Manny), who he knew from previous visits and during the course of that game asked Manny if he could purchase some cocaine. Manny refused. Later, Officer King observed Flip and an unknown patron enter the restroom. Officer King and Manny entered the restroom and Officer King asked Flip if he could buy some cocaine. Flip refused, because he "did not know " Officer King "well enough." Immediately after Flip left the restroom, Manny asked Officer King what he wanted and Officer King replied that he wanted to purchase $20 worth of cocaine. Officer King handed Manny $20 and a few minutes later Manny joined Officer King at the pool table and handed him a plastic baggie, secreted inside a matchbook, containing cocaine. Dave was in the bar at the time, but the proof fails to demonstrate that he observed or had the opportunity to observe any of these discussions or transactions. On March 1, 1994, at or about 7:45 p.m., Officer King returned to the licensed premises to continue his investigation, and during the course of that visit engaged Dave in a game of pool. While playing pool, Officer King was approached by a patron known as "Gennie," who Officer King had observed on the premises previously. Gennie asked Officer King if he needed anything and Officer King replied that he wished to purchase $20 worth of cocaine. Officer King gave Gennie $20 and Gennie approached Dave and asked if he had any cocaine. Dave replied that it would be a little while, and shortly thereafter he left the premises. A few minutes later Dave returned with an unknown male, entered the men's restroom, and locked the door. A few minutes later, Dave exited the restroom, and he and Gennie engaged in a hand-to-hand transaction. Gennie then went to the lady's restroom, and on her return handed Officer King a plastic baggie of cocaine and explained she had taken a "hit" before delivering it to him. Later that evening, Officer King asked Gennie if she could get him another $20 worth of cocaine. Gennie replied that would be "no problem," and approached Dave and asked him for another $20 worth of cocaine. Shortly thereafter, Dave and the unknown male again entered the men's restroom and locked the door. When he exited a few moments later, Dave went directly to Gennie and they again engaged in a hand-to-hand transaction. Gennie then went to the lady's restroom, and when she emerged a few moments later handed Officer King a small plastic baggie containing cocaine. Gennie again advised Officer King that she had taken a "hit" prior to delivery, as "her payment". On March 4, 1994, Officer King returned to the licensed premises to continue his investigation. Upon entering the premises Officer King went directly to the restroom and was followed by Scott. Scott asked Officer King if he "needed anything." Officer King told Scott he wished to purchase some cocaine, and later that he wished to purchase some marijuana and crack cocaine. Scott advised Officer King that it would be a while before he could get the cocaine, but that he could get the marijuana and crack cocaine immediately for $10 each. Officer King gave Scott $20, and Scott left the premises. A few minutes later, Scott returned to the premises and handed Officer King a plastic baggie containing marijuana and a rock of crack cocaine. Officer King then left the premises, but returned about 30 minutes later. While Officer King was playing pool with Dave, Scott returned to the premises, approached Officer King, and handed Officer King a plastic baggie containing cocaine. This transaction occurred openly, with no attempt by Scott to conceal the transaction from Dave. The owner's explanation Respondent, Melba Mosca, is 70 years of age, and has owned the 71 Bar and Grill since April 1993. According to respondent, she has been very alert to prevent drugs from being present on the premises, has signs posted in the bar prohibiting drugs, and has instructed her bartenders not to allow drugs and to phone the police if they see any drugs. Respondent further averred that in October 1993 she was hospitalized for an operation, and her ability to supervise the premises since that time was impaired. Notwithstanding, she was on the premises two to three times a day, and at shift change. According to respondent, her son Dave "watched" the premises for her when she was ill, but was not an employee. The testimony of Helia Mercado, respondent's nighttime bartender, was consistent with that of respondent. As heretofore noted in endnote 1, the testimony of respondent and Ms. Mercado that Dave was not an employee or agent of the owner was rejected as not persuasive or credible. Indeed, respondent's own testimony that Dave "watched" the premises for her, and Officer King's observation of his activities, compel the conclusion that Dave was an agent or employee of the owner. The testimony of respondent and Ms. Mercado that they had never observed any narcotics activity on the premises, as well as the efforts that were taken to discourage it, while of questionable credibility, stands unrefuted. Indeed, there is no proof of record that respondent was present on the premises when any of the transactions occurred that are the subject matter of the notice to show cause, and no proof that she or any of her agents or employees, except for Dave, were ever in a position to observe, much less observed, those or any other illicit activities on the premises. Under such circumstances, and given the limited number of transactions, the limited time of day at which they occurred, and the surreptitious nature of the majority of the transactions at issue, it cannot be concluded that respondent, based on the competent proof of record, fostered, condoned, or negligently overlooked such illegal activity.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the notice to show cause. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of April 1994. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April 1994.
The Issue This case involves the consideration of a Notice to Show Cause/Administrative Complaint by the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco against Palace Bar and Lounge, Inc. Specifically, it is alleged in Count I that between January 16, 1981, and January 29, 1981, the Palace Bar and Lounge, while licensed under the beverage laws of the State of Florida, in the person of the corporation or by its agent, servant and/or employee did maintain a place, to wit: the licensed premises at 6970 N. W. 17th Avenue, Miami, Dade County, Florida, which is resorted to by persons using controlled substances for the purpose of using these controlled substances, to wit: cannabis and cocaine, or which place is used for keeping or selling them, in violation of Subsection 893.13(2)(a)5., Florida Statutes, and Subsection 561.29(1)(a), Florida Statutes. It is further alleged by Count II that between January 16, 1981, and January 29, 1981, the Respondent, Palace Bar and Lounge, Inc., as a licensee under the beverage laws of the State of Florida, or its agent, servant and/or employee did keep or maintain a public nuisance on its licensed premises, to wit: maintaining a building or place which is visited by persons for the purpose of unlawfully using substances controlled under Chapter 893, Florida Statutes, as amended, or which is used for the illegal keeping, selling or delivering or same, contrary to Section 823.10, Florida Statutes, and Subsection 561.29(1)(c), Florida Statutes.
Findings Of Fact This case is presented for consideration pursuant to Subsection 120.57(1), Florida Statutes, following administrative charges brought by the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, against Palace Bar and Lounge, Inc., d/b/a Palace Bar. The details of those charges are as set forth in the Issues statement to this Recommended Order. The formal hearing in this cause was conducted on May 11 and 12, 1981. The Recommended Order is being entered in furtherance of that hearing and after granting the parties an opportunity to offer memoranda of law, proposed findings of fact, conclusions of law and recommendations, and in keeping with the schedule designed to effectuate that opportunity. The State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco is a regulatory agency within the State of Florida, which has among its functions, the licensure of individuals who sell alcoholic beverages in the State of Florida and the responsibility to discipline those several licensees, should the licensees violate the underlying regulatory statutes and rules. Respondent, Palace Bar and Lounge, Inc., d/b/a Palace Bar, is the holder of and held a valid beverage license on all dates in question in the Administrative Complaint. Specifically, Palace Bar is the holder of license No. 23-479, Series 4-COP, which allows the sale of alcoholic beverages for consumption off premises. The licensed premises is located at 6970 N. W. 17th Avenue, Miami, Dade County, Florida. The facts in this case reveal that James P. Bates, Sergeant with the Division of Alcoholic Beverages and Tobacco, went to the licensed premises on January 12, 1981, at approximately 8:00 P.M. The purpose of this visit was a pre-surveillance inspection. While at the bar, Bates spoke with a bartender identified as "Miss Frances." This particular bartender was blind. During the course of the conversation with Frances, Officer Bates inquired of Frances on the subject of the possibility that Bates might purchase "reefer," meaning the controlled substance marijuana, in the bar. Frances replied that he could not point out anyone selling "reefer" specifically, but all that all that was necessary on Bates' part to obtain "reefer" was to ask around the licensed premises. Officer Bates returned to the licensed premises in the early morning hours of January 17, 1981, with the express purpose of attempting to buy marijuana in the licensed premises. While there, Bates spoke with Frances again and asked where he could buy "reefer." The response by Frances was as before, in that he indicated that the officer should inquire around the licensed premises. To that end, Officer Bates spoke to a customer identified as "Red" who also, upon being asked about the purchase of marijuana, told Bates that he could ask around the licensed premises about the purchase of "reefer." This same customer indicated that the management did not allow the sale of marijuana in the bar. On January 17, 1981, on this particular visit, Sergeant Bates saw a person in the licensed premises who was dressed in a uniform. (This individual was located in the package store which is the locale where the alcoholic beverages were being sold for consumption off premises. The bar area is separate from the package store and customers bring the alcoholic beverages that they have purchased from the package store into the bar area where they may purchase mixers from the bartender to be used with the alcoholic beverages which they purchased separately.) Sergeant Bates made an additional visit to the licensed premises on January 29, 1981, and this was the first occasion of visits in which he saw the bar manager, Theodore Ferguson, Jr. On January 16, 1981, Beverage Sergeant Allen F. Nash, went to the licensed premises in an undercover capacity to ascertain if drugs could be purchased in the licensed premises. He arrived at around 1:45 A.M. and remained until approximately 2:50 A.M. in the licensed premises. No purchases were made in the licensed premises, but upon leaving the building at approximately 2:50 A.M., and while just outside the doorway, the officer encountered a man who was advertising that he had drugs for sale. Officer Nash inquired of the individual what was for sale and the man responded that he had "bags" meaning bags of marijuana. A deal was struck and Officer Nash bought a $7.00 bag of marijuana from the subject. The marijuana was a controlled substance. On January 20, 1981, Sergeant Nash returned to the licensed premises at approximately 11:55 P.M. At that time, he was in the company of another Beverage Officer, Phyllis Williams. The officers entered the bar area and took a seat at the bar proper. At around 1:15 A.M., on January 21, 1981, Nash spoke with an unidentified male patron and asked if that individual knew where he could get some "reefer." The patron indicated that he had $3.00 "bags" for sale. In turn, Nash told the man to give him two "bags" and a purchase of the controlled substance marijuana was made for a price of $6.00. The exchange of money and marijuana was made at the bar proper at a level above the bar. The same bartender, Frances, was behind the bar on this occasion. (Nash did not observe any uniformed security guards on the premises.) At around 1:50 A.M. on January 21, 1981, while Officers Nash and Williams were seated at the bar, a different male approached them and Nash asked this individual if he had marijuana. That individual replied that he had "joints and bags" meaning different increments of marijuana. Officer Williams asked how much the man would charge and he replied that the cost would be $7.00 for a "bag." She purchased two separate "bags" of marijuana for a total cost of $14.00 and the individual gave her a complimentary marijuana cigarette. This form of marijuana purchased was a controlled substance. The purchase was made at the bar and at a level above the bar. The two officers left the licensed premises around 2:00 A.M. on January 21, 1981, and as they walked out the door, they overheard an individual say that cocaine was for sale and that "I've got the best girl in the world." Officer Williams asked the individual for two "caps" of cocaine. The individual indicated that the price was $10.00 a "cap" and that he only had one "cap." She paid him $20.00. He gave her the "cap" that he had and went back in the licensed premises and returned with the second "cap." The so called "caps" were in tinfoil packs and contained the substance cocaine which is a controlled substance. Sergeant Nash returned to the licensed premises on January 24, 1981. He entered the bar area and while there, saw an elderly man in a security guard uniform cleaning up, that is, mopping and sweeping. Although Officer Nash was there for the purpose of seeing if he could purchase controlled substances while operating in an undercover capacity, he did not make purchases in the bar proper. Officer Nash did make a purchase outside the licensed premises approximately four (4) feet from the door and this purchase was made around 2:40 A.M. The purchase was made from a man who had individual marijuana cigarettes and who sold Nash five marijuana cigarettes, which were controlled substances. Officers Nash and Williams went to the licensed premises in the early morning hours of January 28, 1981, for purposes of attempting to purchase narcotics while operating in an undercover capacity. At that time, they were unsuccessful in making those purchases. The officers returned to the licensed premises in the evening hours of January 28, 1981, at around 9:30 P.M. When they approached the front door of the licensed premises, a man who was approximately four (4) feet from the front door, stated that he had "joints" for sale for a dollar. This meant marijuana cigarettes for $1.00 each. Two other people were standing with this individual when the officers approached. The officers purchased five marijuana cigarettes from the man for the price of $5.00. The marijuana was a controlled substance. Once the officers went inside, on the evening of January 28, 1981, and while at the bar proper, a man approached Officer Williams and said that he had marijuana for sale. Officer Williams purchased ten marijuana cigarettes, a controlled substance, for a price of 10.00, which the man extracted from a clear plastic bag. Part of this transaction occurred at the level above the bar. At that time, a woman was behind the bar serving as bartender. No uniformed security guards were seen on this visit. During all of the transactions that took place in the licensed premises involving Officers Nash and Williams, no covert acts were taken on the part of the sellers to keep employees of the licensee from seeing those activities. No employees of the licensee took part in any of the sales either in the licensed premises or immediately outside the building. On all occasions, the bar was crowded and noisy. The two officers did not observe other sales of narcotics being made while in the licensed premises and while there on January 28, 1981, in the early morning hours, they were asked to move away from the door and this request was made by a security guard. The officers never made purchases from the same individual twice. On January 21, 1981, Beverage Officers Redis Thompson and Eddie Alford went to the licensed premises. They arrived at approximately 11:30 P.M., entered the building and sat at the bar in the center portion. Three men were at the southern extreme of the bar smoking and one of those individuals left the group and approached Officer Thompson. At that juncture, the man asked Thompson if he wanted to buy some "smoke." This meant marijuana. Thompson asked him what he had and the individual took out a cellophane packet containing marijuana cigarettes. Thompson asked him how much they cost and the individual replied that it was one dollar. At that point, Thompson purchased twenty (20) marijuana cigarettes, a controlled substance for a price of twenty dollars. In the early morning hours of January 22, 1981, while at the bar, the two officers were approached by an individual identified as "Larry." "Larry" indicated that he had some "good coke" and "grass." These terms referred to mean cocaine and marijuana. Thompson indicated that he would like to buy some cocaine and did purchase cocaine from the individual "Larry" for the price of $10.00. This cocaine is a controlled substance. Officer Alford also purchased cocaine on this occasion from a man identified as "Spider" who sold Alford three containers of cocaine for a price of $25.00. This cocaine is a controlled substance. The transactions with "Larry" and "Spider" took place at the bar area at a level above the bar. This same individual "Spider," consumed a portion of the cocaine by "snorting," that is, ingesting the material through his nostrils. On January 28, 1981, at around 1:00 A.M., Officers Thompson and Alford entered the licensed premises and went to the bar and took their seats. The same man identified as "Larry" came over to them and asked if they wanted some "smoke." This meant marijuana. "Larry" produced marijuana cigarettes and charged Thompson five dollars for five marijuana cigarettes, a controlled substance. On this occasion, no security guards were observed at the licensed premises by either of the officers. While the two officers were in the licensed premises on the occasions mentioned, the premises ware crowded and noisy. Employees of the licensed premises did not participate in any of the drug transactions, which took place during the visits, ranging from forty minutes to two hours. On January 29, 1981, a search was conducted on the licensed premises related to action by the Petitioner and this search did not reveal the presence of any form of narcotics. As mentioned before, the bar manager, during the time in question, was one Theodore Ferguson, Jr. In keeping with the policies of the ownership, certain signs have been posted in the licensed premises calling to the attention of the patrons the management policy against the delivery or sale of drugs, the use of drugs and the fact that management could prosecute and hold those persons liable who violated these conditions. Notwithstanding these prohibitions, one of the employees of the bar "Miss Frances" made mention to Sergeant Bates the matter of the availability of controlled substances in the licensed premises. Ferguson identified a management policy to ask people who have drugs to leave the premises and grounds around the premises and the efforts to call law enforcement to assist in this undertaking. Employees of the bar wear identification tags and there are security guards who report to Ferguson if drug violations or loitering is observed on the part of patrons. At the time of the investigation, some of the security guards had green caps with shields and green shirts and pants. Other security guards were in street clothes and this group constituted the majority of security personnel. In the past, patrons have been asked to leave for violating the prohibitions against loitering or drug usage, possession or sale and the authorities have been called. The security guards are instructed to inspect the parking lot as well as the inside of the licensed premises. Nonetheless, there were times in January, 1981, during the pendency of the investigation referred to in this matter, in which the number of desired security guards and the number to which the licensee had stipulated with the Petitioner would be provided as security, were not available. See Petitioner's Composite Exhibit No. 1. (This stipulation settled a complaint by the Petitioner against the licensee for nuisance activities at the premises, wherein patrons were suspected of using narcotics at the licensed premises, and wherein the stipulation incorporated terms of a stipulation between the Respondent's owners and the Dade County, Florida, State Attorney's Office.) The problem with having sufficient numbers of security guards was due to a high turnover. There was other difficulty related to maintaining the security guards in uniform due to removal of the uniforms by former security guards and the fact that the uniforms did not fit replacement security guards. As a result, at some point in the January, 1981, time period, Ferguson made the decision to put all security guards in street clothes, with the exception of one uniformed security guard. Ferguson, as bar manager, is routinely at the bar for a period of 12 to 14 hours a day, as much as 20, and at times has worked 30 hours straight. When he is absent from the bar, it is ordinarily between the hours of 5:00 P.M. and 11:00 P.M. Since January 29, 1981, ownership has taken steps to provide all security guards with uniforms which are constituted of shirts with the word "security" written on them. During January, 1981, Ferguson established through his testimony that the security personnel also fulfilled custodial functions in the licensed premises. Ownership of the licensed premises has left the management of the licensed premises in the period January, 1981, in the hands of Ferguson and visits by ownership to the licensed premises were infrequent and not ordinarily at a time when the bar was having its peak business cycle.
The Issue The issues are whether the Respondent possessed, sold, or aided and abetted in the sale of controlled substances by his employee Pamela Martin on the licensed premises and whether the licensed premises were a public nuisance contrary to Section 561.29(1), Florida Statutes.
Findings Of Fact At all times relevant to the charges in this case Bernard Jordan, the Respondent, was holder of an alcoholic beverage license number 39-597, Series 2- COP, issued to the premises known as Little Paradise, located at 3602-29th Street, Tampa, Hillsborough County, Florida. The licensed premises are located on the corner of 29th Street and 29th Avenue in Tampa, Florida. On the other corners of the intersection are located a dentist's office, a physician's office, a building containing a real estate office and the office of three attorneys. Further down the street is located a laundromat and various other businesses. A persistent drug problem existed in this vicinity on 29th Street. Alphaeus Johnson is a confidential informant who works with the City of Tampa Police Department and for George Miller, an investigator with the Division of Alcoholic Beverages and Tobacco. Mr. Johnson had worked for Miller for over five years. As an undercover informant, A1phaeus Johnson entered the licensed premises. Johnson was searched by Investigator Miller and/or Detective Ron Harrison thoroughly prior to each occasion upon which he entered the licensed premises. These searches revealed that Johnson had no money or narcotics on his person at the time he was searched. After search, on each occasion, Johnson was given funds by the officers with which to purchase controlled substances. The officers kept Johnson in view from the time he left him until the time he entered the establishment and from the time he left the establishment until the time he returned to their location. The informant was paid a flat rate per day for assisting in the investigations and his compensation was not dependent upon whether he made any narcotic purchases. On February 15, 21, 22, and March 3, 22, 23, 1983, Johnson purchased quantities of cocaine from Pamela Martin inside the licensed premises. On February 15 and 21, 1983, Johnson purchased a quantity of marijuana from a male customer inside the licensed premises upon the referral of Pamela Martin. David Hauser, a detective with the University of South Florida, entered the licensed premises during the month of March, 1983, as part of an undercover investigation. Hauser asked Jordan if Jordan would sell him cocaine or whether he would have to purchase it from Pam. Jordan told Hauser he would have to get the cocaine from Pam. When Hauser approached Pam, she responded that she did not sell drugs. No sale ever occurred between Hauser and Pam. Pamela Martin had worked for the Respondent Bernard Jordan since 1975. Jordan had hired Martin after checking her references to include that of Martin's mother, with whom he was personally acquainted. At the time Martin was hired she had not ever been charged with a crime. At that time she did not use drugs. Martin had worked for Jordan off and on at various of Jordan's licensed premises since 1975. Jordan stressed with Martin and reemphasized to her at various times during her employment that any drug involvement by her on the licensed premises would result in her immediate discharge. Jordan also stressed with Martin and his other employees that any use of controlled substances by customers on the licensed premises was prohibited and that anyone using controlled substances be required to leave. At the time in question, the licensed premises were divided roughly in two by an iron grill. Neither Martin or any other employee had access to the locked area behind the iron grill which had been used as a disco. Use of the licensed premises was restricted to the front part of the premises which contained a bar, pool table, tables for customers and rest rooms. The disco had not been used for several months before the time in question. April 6, 1983, law enforcement officers executed a search warrant on the licensed premises. At the time the warrant was served, Martin was on the premises but did not possess a key or have access to the area behind the iron grill. The investigators found a blue plastic bowl in the mens room containing residue, a marijuana cigarette in Pamela Martin's purse, a partially smoked cigarette on the floor behind the bar, and a black zipper bag containing marijuana residue in an unlocked cabinet behind the locked gate. The black zipper bag was found after the Respondent Bernard Jordan was called to the licensed premises and unlocked the area. Marijuana and cocaine are controlled substances under the laws of the State of Florida. Jordan terminated the employment of Pamela Martin on April 6, 1983. Subsequently Martin pleaded guilty to sale and delivery of cocaine and was placed on probation. After being asked by Hauser whether Hauser could purchase cocaine from him or whether Hauser should wait for Pam, Jordan hired Alton Silas to remain at the licensed premises all of the day following Hauser's approach to Jordan. Silas was to watch Martin and report to Jordan any illegal activities which he observed. Silas saw no illegal acts while he was on the premises. Jordan operates six additional licensed premises in the city of Tampa. Jordan has strict overall rules concerning the use of controlled substances on all of his licensed premises. Jordan is in each of his licensed premises daily, generally on more than one occasion. Most of Jordan's employees have worked for him for long periods and some are members of his family. Jordan's policy is to discharge any employee involved with drugs or who permits the use of drugs on the premises. Jordan has discharged three employees over the last three years for failure to follow his policies concerning drugs. The informant Johnson testified that Jordan was never in the bar during any of his visits to the licensed premises. The licensed premises are the original licensed premises open by Jordan's family in the Tampa area. Many of the customers on the licensed premises are businessmen who work in the neighborhood. A dentist whose office is located near the licensed premises testified that he routinely visited the Little Paradise between 10:00 A.M. and 1:00 or 2:00 P.M. remaining on the premises for approximately twenty minutes. He never observed any drug use or drug sale on the premises. Jordan has never had any disciplinary action taken against any of his licensed premises.
Recommendation It is recommended that the charges be dismissed and that no action be taken. DONE and ORDERED this 29th day of January, 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of January, 1985. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Charles R. Wilson, Esquire 300 North Franklin Street Tampa, Florida 33602 Gary Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact At all times material to the instant case, Respondent was the holder of beverage license No. 54-279-S, Series 6COPS. The license was obtained by the Respondent by transfer in September, 1977. The licensed premises is located at the Key Wester Inn, 975 South Roosevelt Boulevard, Key West, Florida. The Key Wester Inn and the licensed premises are owned and operated by Mr. Mel Heifetz, the Respondent herein. On September 10, 1983, Beverage Officers Frank Oliva and Leonard DelMonte went to the licensed premises to investigate a complaint of drug sales taking place inside the licensed premises. The officers entered the lounge at approximately 7:00 p.m. The licensed premises are called the Inner Circle Lounge and consists of three areas. The main portion of the lounge is a large room with a bar along the south wall and a bandstand and dance floor in the northwest corner. The remainder of this area is filled with tables and chairs. To the east of the main bar is a large room which opens onto the main bar area through two large openings. This area contains tables and chairs. To the west of the main bar area is a deck and patio area called the pool bar area. When the officers arrived at the licensed premises on September 10, they sat on two bar stools at the northwest end of the pool bar. The two officers engaged a white female waitress named Lori Hart in conversation. Eventually the conversation led to a discussion of drugs and Officer Oliva asked if she could sell him some quaaludes. She said that she could not but that she could sell them cocaine if they would return at 10:00 or 10:30 p.m. that evening. She also said that the price would be between $80 and $100 and that she would have to be turned on also. This meant she would inhale some of the cocaine she sold them. The officers agreed and then left. The officers had never met Lori Hart before and no one at the bar had vouched for them or introduced them to her. At approximately 10:00 p.m., the officers returned to the lounge and sat on two bar stools at the west end of the pool bar. Lori Hart walked up and asked if they still wanted the cocaine and the officers responded "yes." She said the price would be $80. She then asked a bartender named George to tend bar for her. She picked up her purse and walked into the interior bar area and then returned and walked to the area of the bathrooms near the pool. The two officers followed her to the bathroom area. When they reached the bathroom area, the door to the ladies' room was closed. About five to ten minutes later the manager of the lounge, George Font, came to the bathroom area and went into the men's room to wash his hands. He left and a few minutes later came back and knocked on the door to the ladies' room and said "Lori you have customers." After George Font left, Lori Hart came out of the bathroom, and exchanged a packet of cocaine for $80 cash from Officer Oliva. On this particular evening, Pedro Corpion, an off-duty police officer working as a security guard at the licensed premises, was seen in the pool bar area at various times. The location where the exchange took place is a hallway adjacent to the pool area restrooms and is not visible from anywhere in the bar. On September 16, 1983, Officers Oliva and DelMonte returned to the licensed premises. They were accompanied by Faye Francy of the Monroe County Sheriff's Department. They sat at a table next to the dance floor and adjacent to the north wall of the interior lounge. While seated at the table, a waitress named Linda Carteret took their order for drinks and Officer Oliva asked if she could sell them 2 grams of cocaine. She said she would see what she could do. She later returned to the table and stated she could only get 1 1/2 grams. About a half hour later, she returned to the table again and stated that she did not have quite 1 1/2 grams so the price would be $110 rather than $120 as originally stated. Officer Oliva said o.k. and told her that the money was under a napkin on the table. She crouched between his chair and the chair where Faye Francy, who was dancing, had been seated. She placed a small packet of cocaine wrapped in a one dollar bill under Officer Oliva's left leg. When Linda Carteret crouched at the table and transferred the cocaine, she had her back to the bar area. These actions were being watched by Whitney Russel Papy, an investigator for the state attorney's office, from a table nearer the bar and he could not tell that an exchange or buy had taken place until Officer Oliva, by prearranged signal, got up and left. Officers Oliva and DelMonte had never met Linda Carteret before and had not been introduced to her before asking to purchase cocaine. On the evening of September 15, 1983, Officers DelMonte and Oliva returned to the licensed premises. They sat at the west end of the interior bar and ordered drinks. Lori Hart was working behind the bar and at approximately 9:30 a.m., Officer DelMonte and Oliva returned to the licensed premises. They sat at the west end of the interior bar and ordered drinks. Lori Hart was working behind the bar and at approximately 9:30 a.m., Officer DelMonte asked Lori Hart to sell him a gram of cocaine. She said she could get it and a short while later, she returned to where the officers were seated and placed a bulging matchbook on the bar in front of Officer DelMonte. Inside the matchbook was a small plastic baggie containing cocaine. Approximately five minutes later, Officer DelMonte ordered a drink and gave Lori Hart $100. She walked to the register, rang up the drink, and returned and handed him $17.00 in change. The price of the cocaine was $80.00 and the drink cost $3.00. Officer DelMonte placed the matchbook and cocaine in his pocket. On the evening of September 16, Paul Carr, the manager of the Key Wester Inn, came into the lounge several times. He walked in, looked around the lounge, remained for a few minutes and then left. The band was playing in the lounge this particular evening. On September 17, 1983, Officers DelMonte and Oliva were again in the licensed premises for the purpose of attempting to purchase drugs. They sat at the east end of the interior bar. Officer DelMonte placed four (4) $20.00 bills in a matchbook and placed it on the bar in front of him. A few minutes later, Lori Hart, who was behind the bar, saw the matchbook and said she would get the stuff. Some of the numbers of one of the twenty dollar bills were showing. Lori Hart asked if there was $80.00 in the matchbook and Officer DelMonte responded "yes." She took the matchbook and a short while later placed a napkin in front of Officer DelMonte. Inside the folded napkin was a small plastic baggie containing cocaine. Officer DelMonte placed the cocaine and napkin in his pocket. On this particular evening, off-duty Police Officer Pedro Corbione was working inside the lounge and was out of uniform. He passed the bar area where the officers were seated while the matchbook containing the money was on the bar. However, there was no evidence that Officer Corbione saw the matchbook. The band was playing in the lounge this evening. Beverage Officers DelMonte and Oliva returned to the licensed premises on September 22, 1983, at approximately 9:15 p.m. They were joined a few minutes later by Deputy Francy of the Monroe County Sheriff's Department. The three officers sat at a table just inside the large sitting area to the east of the interior bar area. The table where they were seated was partially obscured from vision of the bar area by a short wall that extended to the edge of the large entrance way. While seated at the table, Officer Oliva asked Linda Carteret if they could purchase some cocaine. She was on duty as a waitress. A short time later, Lori Hart walked over and asked if they were still interested in a gram of cocaine. Officer Oliva said yes and she asked for $80.00. Officer Oliva told her he didn't think he should be so open and she agreed. She told him to give the $80.00 to Linda who came over a few minutes later and picked up a napkin with the $80.00 beneath it. After taking the money, Linda Carteret returned with a foil packet under a napkin and placed it on the table. The foil packet contained cocaine. Both women were on duty as cocktail waitresses when this transaction took place. There was nothing suspicious about the actions of the officers or Lori Hart and Linda Carteret during this transaction. The transfer took only a few seconds and the foil packet was not visible beneath the napkin. This was a very secretive transaction and the exchange itself was not observed by Deputy Faye Francy who was seated at the table with Officers Oliva and DelMonte. The area where the officers were seated was dimly lit. The band was playing in the lounge this evening. On September 28, 1983, Officers Oliva and DelMonte returned to the licensed premises. They entered the lounge at approximately 7:00 p.m. and sat at the same table they had sat at on the evening of September 22. They had first entered the interior bar area and sat at the bar, but after they were joined by Linda Carteret, they went to the table. Officer Oliva asked Linda Carteret to sell them some cocaine and she responded that she had heard rumors that they were police officers. Officer Oliva convinced her that they were not police officers and she then agreed to sell them 1 gram of cocaine for $80.00. She went to the bathroom area and when she returned she placed her hands over Officer Oliva's hands and dropped the plastic baggie containing cocaine into his hands. He then handed her the $80.00. The entire exchange took about 5 seconds. While this transaction took place, the bar manager, Don Crawford, was seated at the east end of the interior bar with his back to the table where the officers and Linda Carteret were seated. This particular evening, Linda Carteret was not working at the lounge. No indication of a transaction was observed by Harry Sawyer, an investigator with the state attorney's office. Harry Sawyer was in the lounge on September 28 as a backup to Officers Oliva and DelMonte. A band was playing in the lounge on this evening. Lori Hart had previously worked at the Inner Circle Lounge in 1982. She terminated when she went home to visit her family and was rehired in January, 1983. There were no problems with her work in 1982. However, in April, 1982, an administrative complaint was made against the Respondent's license charging that Lori Hart had failed to check the identification of a minor and had sold the minor a drink. She was not terminated at that time because she was needed as a witness in the administrative proceedings. Lori Hart resigned some time prior to September 28, 1983, because she was changed to a different shift and location in the lounge. Lori Hart was initially hired as a cocktail waitress and was transferred later to bartender. Prior to being hired she was interviewed by the bar manager and by the manager of the Key Wester Inn, who oversees the entire property where the Inner Lounge is located. She was required to obtain and provide the management with an ID card which is obtained from the Key West Police Department. This ID is required for persons working in Key West and in order to obtain an ID, an application with certain background information must be given and a photograph is taken and placed on the ID card. Lori Hart was also required to fill out an employment application for the lounge. On this application, she was required to give background information and references and these were checked by the manager. At the time she was hired in January, 1983, Lori Hart was required to sign a form which states: As an employee of the Key Wester Inn I understand that it is unlawful to drink alcohol or take any form of drugs that are not prescribed by a doctor during the performance of my shift of work. And further I realize this would be grounds for dismissal. Each employee hired was required to sign such a form. The Inner Circle Lounge and Key Wester Inn had a policy against any drugs on the premises and this policy was explained to all employees when they were hired and was repeated on a continual basis. Employees caught with drugs or alcohol while on duty were terminated under this policy. Linda Carteret was employed in September, 1983. She was hired the same day she applied because the lounge was short one cocktail waitress. She was interviewed by the bar manager who requested that the manager, Paul Carr, allow him to hire her immediately. Mr. Carr approved the hiring but did not interview her. Linda Carteret was also required to provide the lounge with the ID card obtained from the Key West Police Department and was informed of the policy of drugs and alcohol while on duty. The Key Wester Inn is owned by Respondent and is managed by Paul Carr, the resident manager. Mr. Carr has 2 years experience in the hotel, restaurant and lounge business. Prior to September 12, 1983, George Font was manager of the lounge. Mr. Font had been asked to resign because of poor performance and it was agreed that September 12, 1983, would be his last day. After Mr. Font left, Don Crawford, originally hired as a cook was promoted to bar manager. He was given no authority or real responsibility because he was considered to be in a training status. Paul Carr, the resident manager actually took over management of the lounge begining September 12. The evidence did not establish that Mr. Font or Mr. Crawford was aware of the drug transactions that occurred in September, 1983. Mr. Paul Carr, the resident manager, had no knowledge of any drug transactions or drug problems in the lounge. The bar manager was in the lounge each night full-time. Paul Carr was at the lounge when it opened and closed and visited the lounge several times each evening at random times. Prior to July or August, Mr. Pedro Carbione, an off-duty Key West Police Officer worked as security officer at the entrance to the lounge. He checked ID's and watched the outside area. In July or August, Officer Corbione, on Paul Carr's recommendation, moved inside the lounge to work security. When he moved inside the lounge, he no longer worked in uniform. The evidence failed to establish that Officer Carbione was aware of any drug transactions taking place in the licensed premises. The Respondent has held the beverage license in question since 1977. Since that time, there have been no prior charges involving drugs. The only prior charge against the license involved selling to minors. The Respondent and his staff have cooperated with local authorities in prior drug investigations and the licensed premises enjoy a reputation in the community as a nice, decent place to go and dance. The Inner Circle Lounge is frequented primarily by business people, military officers, and local residents including law enforcement officers. The patrons are primarily thirty to fifty years of age. The lounge does not have a reputation in the community as a place where drugs can be sold or used or as a place frequented by people who use drugs. At no time prior to service of the Emergency Suspension Order was Respondent or his staff informed of a drug problem in the Inner Circle Lounge by the Division or local authorities. Lori Hart and Linda Carteret made several statements during the sales and during interrogation after their arrest which indicated some knowledge of the drug sales on the part of George Font and Don Crawford. This evidence was considered by the hearing officer and considered to be of no probative value in light of the total lack of any direct evidence which would show knowledge on the part of those individuals and because of the contradictions between such statements and the very secretive manner in which all the sales were made.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED That the Respondent be found NOT GUILTY of the violations charged in the Notice to Show Cause and that the charges be dismissed and the license immediately restored. DONE and ENTERED this 15th day of November 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 15th day of November, 1983. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida Charles L. Curtis, Esquire 1177 S.E. Third Avenue Ft. Lauderdale, Florida 33316 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
