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.
Findings Of Fact At all times pertinent to the allegations herein, Respondent, Luke Range, d/b/a Flame Bar and Lounge, possessed a 4-COP alcoholic beverage License No. 15-96 for the Flame Bar and Lounge located at 355 Magnolia Street, Cocoa, Florida. Respondent Range purchased the Flame Bar several years ago. At that time, it was known as the Central Bar and, according to community representatives, at the time of purchase, was an extremely bad operation. Since his purchase of the bar, Respondent has upgraded it and gotten rid of many of the problems that plagued it when it was known as the Central Bar. At that time, there were numerous assaults, gambling violations and other offenses frequently conducted on the premises. Several members of the Cocoa Police Department have responded to the Flame Bar for various reasons as a result of disturbance calls and for other similar reasons over the months leading up to the summer of 1983. Many of these individuals, such as Nicholas Blankenship, were in the bar during the month of July, 1983, on several different occasions. Blankenship, for example, entered several times during that month and, each time he entered, he saw people smoking what appeared to be marijuana and smelled what appeared to be the odor of burning marijuana. Though he saw this drug activity, and though he was on duty, he did not make any arrests for drug violations because, in his own terms, it would be "suicidal" for an officer to attempt to make an arrest either by himself or with only one other officer in attendance. Blankenship reported what he had seen to Vice Squad Detectives Mike Blubaugh and Mike Brown. This same situation was described by another Cocoa police officer, John Willingham, who also was in the Flame Bar on several occasions during July, 1983, and clearly saw individuals smoking what appeared to be marijuana or smelled the heavy odor of marijuana. He did not make any arrests, but did report the information he observed regarding drug abuse to the vice squad detectives or the chief of police. Willingham has received anonymous phone calls concerning the sale of narcotics outside the bar. However, when he would arrive there in a marked police vehicle, he would normally not find anyone engaged in that activity. The two vice squad detectives, Blubaugh and Brown, also are familiar with the Flame Bar. In the course of their police work, on several occasions they have been notified of narcotics activity there and, when it was known as the Central Bar more than three years ago, it was known for its drug activity. In the summer of 1983, Blubaugh was given information that there were several drug dealers working both inside and outside the Flame Bar and, according to his information, it was known as a place where drug dealers hang out. He entered the Flame Bar several times during the summer of 1983 accompanied by different officers each time. To his knowledge, there is drug activity both outside the bar and in or around the apartments and pool hall across the street from it. He has on different occasions seen and smelled marijuana in the bar. He has monitored a police officer who was wired for sound and in that exercise heard a sale of narcotics being accomplished there. He has made no arrests for narcotics violations in the bar, nor has he ever seen the Respondent in the bar when drug transactions were taking place. Based on these complaints and others of a similar nature relating to other bars in the area, the chief of police for Cocoa, Florida, met with Jimmie E. Powell, the District Supervisor for District XII, Division of Alcoholic Beverages and Tobacco (which includes Brevard County, Florida) at the Cocoa Police Department and asked for help in investigating narcotics violations in the black community in Cocoa. The Flame Bar was not singled out for specific investigation during this conversation. Pursuant to this request, Maria L. Scruggs, a Division of Alcoholic Beverages and Tobacco agent, entered the Flame Bar at 10:45 p.m. on July 8, 1983. While she was there, she met an individual named Michael Jenkins, from whom she purchased $10 in drugs outside the bar. While inside, she saw what appeared to be widespread smoking of marijuana. She concluded this because of the smell and the method of cigarette rolling that she observed, and she also observed patrons snorting a white, powdered substance which they usually pulled out of tinfoil packets. In her estimation, there were on this occasion between 100 and 150 patrons in the building of whom the majority were engaged in some type of drug activity. On this occasion, she saw a maximum of three employees, two males, one female. She came back to the Flame Bar on July 9 at 9:00 p.m. On this occasion, she met a black female named Gloria Jean, whom she told she wanted to buy cocaine. Gloria Jean introduced Scruggs to a black male named Reagan, from whom she purchased a white, powdered substance, subsequently tested and identified as cocaine. Reagan was not an employee of the bar, but, instead, a patron. After that second buy, since her undercover identification was as a model, she asked Gloria Jean to meet the manager of the bar. This proved to be Willie Cooper, who identified himself to her as the manager and who introduced her to an individual named Sweet Jimmy. Scruggs asked this gentleman if he would sell her a 10-cent piece of cocaine (a 10-cent piece equates to $10, a 20- cent piece to $20, etc.). Sweet Jimmy indicated he did not have any 10-cent pieces, but would sell her a 25-cent piece. Scruggs had seen this individual make sales out of his sock, and she also bought $20 worth of the substance, which was subsequently identified as cocaine. While Scruggs was sitting there, several black males came up and talked with her. While doing so, they engaged in several sales of what appeared to her to be narcotics to other individuals right at the table where she was sitting with Sweet Jimmy. It was her impression that night (July 9) that besides dancing, the general activity of the people in the Flame Bar was either dealing in or using narcotics. On July 15, 1983, Scruggs again entered the bar in the company of Paul Blackmon at 9:30 P.M.. She introduced Blackmon to Cooper as her boyfriend. At this time, she engaged Cooper in a discussion regarding the fashion shows which she, as a "model," desired to bring into the bar. These discussions took place in what Cooper described as his office and, during the conversations, the issue came up regarding the use of narcotics. Scruggs told Cooper she was concerned about bringing a fashion show into the bar because she was afraid of a raid. Cooper told her at this time not to worry, that the police had a deaf ear to any narcotic activity there. She asked Cooper if cocaine was available, and he said it was. At this point, Blackmon and Scruggs went over to the bar and, shortly thereafter, Cooper came up to Blackmon and gave him a package for which Blackmon paid Cooper some money. Cooper put this money into his pocket and then went back to tending bar. The substance received from Cooper by Blackmon that night was subsequently tested by the laboratory at the Florida Department of Law Enforcement and determined to be cocaine. Scruggs and Blackmon came back again the following night, July 16, at approximately 8:55 P.M.. When they entered, they saw patrons snorting what appeared to be cocaine and smoking what appeared to be marijuana. Upon entering, they went directly to the bar, where Blackmon talked with a black male named Gillaman, who was the relief bartender. On this occasion, Cooper was not present when Scruggs and Blackmon entered, but did come in within a few minutes thereafter. Blackmon asked Cooper if he could get any coke like he had gotten the night before. Cooper immediately left the area and shortly thereafter came back with a tinfoil package for which he got money from Blackmon. This substance was also subsequently identified by the Florida Department of Law Enforcement as cocaine. Scruggs had met Respondent at another club during this period and states she had talked to him at the bar about the modeling shows mentioned previously. Respondent advised her she would have to talk to Mr. O. P. Smith about it, giving her Smith's phone number to contact him. The one call she made, however, did not get through. During the conversation she had with Respondent, she used her undercover name of Cynthia. Respondent denies that the conversation with Scruggs ever took place, further denying that he has ever met her. The equipoise of this situation is somewhat abated, however, when one considers the probability of the evidence. It is unlikely that Scruggs would make up a story as detailed and as complex as she has. On the other hand, it is quite likely that Respondent would not recall a particular conversation of several months previously regarding a subject as mundane as a modeling show with an individual he met only once. Therefore, weighing the evidence, it is more likely that Ms. Scruggs' version prevails and that, in fact, she and Respondent did meet. Blackmon returned to the bar one other time, on July 20, 1983. On this occasion, he talked with an obvious juvenile who identified himself as "Cookie" and who he asked if he could get cocaine. This juvenile went over to another man identified as Juan Cidbury, from whom he got a package and returned to Blackmon. Blackmon purchased this substance, which was subsequently identified upon laboratory analysis as cocaine, and during the entire time, Cooper was standing behind the bar and observing the transaction. Neither Blackmon nor Scruggs ever saw Respondent, Luke Range, on the premises of the Flame Bar when they were there. Willie Cooper, who is presently unemployed, worked for the Respondent at the Flame Bar for approximately a year and a half up to July of 1983, when he was fired by the Respondent, who found out about the investigation that was going on. Cooper was subsequently arrested on charges arising out of the alleged sales of cocaine described herein and was found guilty on at least one charge. The Flame Bar was open until 2:00 a.m. Cooper's immediate supervisor was O. P. Smith, who would come in three or four times a day. Respondent would come into the bar once or twice a day, mostly in the mornings. Cooper knew that some of the patrons smoked or used narcotics on the premises, but he never reported these problems or these incidents to the Respondent. His instructions were to stop any drug activity immediately, either by directing the offender to leave, or, in the event the offender failed to do so, by calling the police. Cooper has frequently called the Cocoa Police Department because of disturbances at the bar, but admittedly has never done so because of drug offenses. Respondent had indicated to Cooper that he did not want drugs in the bar. As a result, neither Cooper nor any of the other bartenders at the Flame Bar kept drugs on the premises or dealt in drugs there. In this case, he got the drugs for Scruggs and Blackmon because she, Scruggs, asked him to do so and he liked the way she looked. He got the cocaine that he sold on these occasions from outside the bar from individuals in the area. The cocaine, however, was not kept in the bar until he brought it in for the immediate sale. Oliver Smith works for Respondent as general manager of both the Flame Bar and the 20-Grand bar and has done so since 1980. His office is in the 20- Grand, which is located approximately a mile from the Flame Bar. During the normal business day, he starts at the Flame Bar, staying there for two or three hours, then goes to the 20-Grand. During the day, he goes back and forth between the bars several times. He did not have any knowledge of Cooper having drugs on the premises or of Cooper having any drug problems or in fact any problems with the law before this incident. He has never seen drugs used in the Flame Bar; he has smelled marijuana, but has never seen it smoked there; and he claims he is usually there during the busy times. He has not discussed the issue of drugs with the Respondent because he did not see that drugs in this bar were a problem. He has continued to instruct his bartenders to ask drug users to leave and, if they did not, to call the police. Since these incidents took place in July, 1983, management has hired several more people to work at the Flame Bar to keep out drugs. They have also added more lights to the place to brighten up the area. Numerous individuals personally testified for Respondent, including such responsible persons as Nathaniel Hooks, a Lieutenant in the Cocoa Police Department who has been with that department for 17 years. He recalls the Flame Bar when it was known as the Central Bar and, at that time, it was considered a bad place for drugs. However, since Respondent has taken over ownership, there has been a tremendous decrease in the number of police calls to the area and a marked increase in its beautification. Hooks himself has been in the Flame Bar at various times and has never seen drug activity in there. To his knowledge, there have been no drug arrests at the Flame Bar within the past year by people under his supervision and, according to his understanding, the police department has not complained to Respondent about his establishment. To the contrary, it is Hooks' understanding that Respondent came to the former chief of police back sometime prior to this investigation in an attempt to get more police coverage in the area for several reasons, one of which was not drugs. Both Willie Cooper and the Respondent have good records with the police department and have not been in any difficulty whatsoever. Of the 91 calls logged by the Cocoa Police Department from the period November 26, 1982, through June 30, 1983, there were no calls for alleged drug violations. Hooks admits to being a friend of the Respondent over a period of years. He owns and operates a security company in his off-duty time in Cocoa from which the Respondent contracts for security for the 20-Grand bar. He also provided security for a former club owned by the Respondent. He has contracts with eight other businesses to provide security. Leon Collins, a former city councilman in Cocoa from 1973 to 1983, has been a friend of the Respondent for 18 years or so and has known him through his. activities with several civic organizations. Respondent has an outstanding reputation in the area and has contributed greatly to city and civic organizations, as well as to churches and youth organizations. Collins goes into the Flame Bar about once a month to have a drink. He has never seen anyone in the Flame Bar smoking or using drugs. Robert Manning, the Principal of Poinsett Middle School in Cocoa, which is located about six to seven blocks from the Flame Bar, has known the Respondent for approximately 14 to 15 years. When he, Manning, was Vice Chairman of the Human Relations Commission in Titusville, Florida, on one occasion, Respondent came to speak to that organization in support of the Commission's position on Project 235 housing. At that time, Respondent was a builder building Project 235 housing in Central and South Brevard County. Respondent was also a participant with NASA and Brevard Community College in forums on minority business opportunities. Respondent is a big supporter of his school and has raised money for it. Respondent also contributes to civic and humanitarian causes in the community, and Mr. Manning is certain that Respondent would not condone any illegality in any of his businesses. He sees Respondent as a clean liver personally who has made a tremendous difference in cleaning up the old Central Bar. The Principal of Cocoa High School, Richard Blake, is also the Chairman of the Rockledge City Council, on which he has served for 10 years. He has known Respondent well for 12 to 13 years, after Respondent came to the Cocoa area from Detroit and lived with Blake's parents for a while. He knows Respondent to be very active in civic affairs. Respondent was the witness's campaign treasurer at one time and has a very high reputation in the business, lay and church communities. He always supports activities for underprivileged children and has an upright character and high principles. Respondent has a reputation as a builder, not a destroyer, and Mr. Blake has seen significant positive changes in both the 20-Grand club and the Flame Bar since Respondent has been involved with them. In his opinion, Blake feels Respondent would take immediate and direct corrective action if he knew drugs were being used in his club. This sentiment is also held by Barbara L. Jenkins of Cocoa, a teacher/counselor of adult education at Brevard Community College who knows the Respondent through his community activities. Ms. Jenkins feels the Respondent is unique in that he is interested in the total community and will do all he can for the community or get it done if he cannot do it himself. He supports programs both for children and the elderly, and his general reputation in Cocoa, as she knows it, is as an advisor to work hard to reach goals. In her opinion, Respondent would not condone drugs in his establishment. She feels that if Respondent is guilty of anything, it is of being too trusting. Ricardo Davis is a member of the executive board of the local NAACP chapter and was its president during 1983. 59 far as is his knowledge, neither the NAACP nor the City of Cocoa prompted an investigation of the Flame Bar in particular because of drug activity in that establishment. Mr. Davis has known Respondent for ten years and considers him as one of the leading black businessmen in the community whose character is above reproach. He does not believe Respondent would condone drugs in his premises. These sentiments and sentiments similar thereto are expressed in the 23 testimonial letters submitted by Respondent from diverse people, including business leaders, professional people, ministers, law enforcement officers, educators and the like. Without question, it is obvious that Respondent has an excellent reputation in the community for honesty, integrity, square dealing and high business and personal scruples. In his own testimony, Respondent indicated he was not aware that anything close to the type of activity described in the testimony here was going on. His manager, Smith, had told him there were drug problems in the general area, and he had asked the police department for help in policing the area, but he had no idea any of it was going on in his establishment. Cooper did not talk to him about drug activity, either. It was Respondent's continuing instruction to his employees that if anyone was illegally using narcotics, to put that individual out, and if the individual refused to go, to call the police. Neither the police nor the Division of Alcoholic Beverages and Tobacco ever contacted him about drug problems prior to the investigation, a fact which is admitted by representatives of both agencies. Respondent went to the Flame Bar three to four times a week at different times of the day, normally, however, before 8:00 P.M.. He never saw any drug activity of any kind at anytime that he went in there, nor did his bartenders ever tell him of any going on. In short, no agency, including the police, the Division of Alcoholic Beverages and Tobacco, the sheriff's office, and the city council (he knew and met with several councilmen on a repeated basis) , ever told him there was any problem with drugs in his establishment or interest in his area. His first knowledge of this investigation was when the beverage agents called him to their office and told him what had happened. He immediately thereafter fired Willie Cooper, who had never given any indication over the three years he had worked for Respondent that he used or had any connection with drugs. In efforts to reduce the potential for drug activity, as was previously referenced by Smith, Respondent has cut hours of operation for the Flame Bar to six hours per day, has increased lighting in the place and has employed security guards at the Flame Bar to work directly for him, a situation he has had in effect since 1979, when he first took the bar over.
Recommendation That Respondent's license be suspended for ninety (90) days and that he pay a fine of $1,000.
The Issue Whether Respondent's alcoholic beverage license should be suspended, revoked, or otherwise disciplined on the grounds stated in Petitioner's Notice to Show Cause dated April 13, 1983.
Findings Of Fact At all times pertinent to this hearing, Respondent possessed alcoholic beverage license numbered 68-776, Series 2-COP, located at 1968 Unit A 27th Street, Sarasota, Florida, where he operated the Town Hall Restaurant. During the last year and a half prior to April 13, 1983, officers of the Sarasota Police Department (SPD) have been called to Respondent's place of business on a frequent basis for various infractions of the law. Numerous narcotics arrests have been made outside of, but in the immediate vicinity of, the Respondent's restaurant, and there have been responses to other crimes, such as assaults and robberies, in the area. Sgt. Peter Viana, SPD, works primarily in this area of town, which contains primarily black oriented businesses, and has smelled marijuana in Respondent's business place on several occasions. In addition, SPD Detective James Fulton related that police intelligence within that same time frame, the last year and a half, indicates repeated sales of narcotics both inside and outside Respondent's establishment. Beverage Officer Keith Hamilton was assigned to an investigation of bars and restaurants in the area of Respondent's business during late March and early April 1, 1983. He is a qualified narcotics investigator and is familiar with the appearance, smell, and taste of such substances as marijuana and cocaine. Early in the morning of March 22, 1983, Hamilton entered the Town Hall Restaurant and went up to the bar to order a beer. There he met "Precious," the barmaid/bartender, who is a male transvestite. During the course of the conversation, Hamilton asked Precious if he could do him a favor. When Precious agreed, Hamilton gave $10 to Precious, who then went over to a patron elsewhere in the room. When Precious returned to Hamilton, he gave him his change and a paper bag which contained a substance later analyzed at the laboratory of the Florida Department of Law Enforcement and determined to be 1.7 grams of marijuana. All tests referred to herein were accomplished by this laboratory. Later that same morning, having returned to the Town Hall Restaurant, Hamilton asked Precious about the availability of cocaine. Precious said he did not know much about it, but would try. Hamilton gave $23 to Precious, who went over to another customer in the bar, made a purchase of some substance, returned to the bar, and after waiting on one other customer, transferred what he had purchased to Hamilton. This substance was subsequently tested and determined to be cocaine. During this second visit to the Town Hall, Hamilton observed other individuals in the building smoking what appeared to be marijuana cigarettes and what he believed to be two sales of the substance. He held this opinion because of the way the cigarettes were wrapped, burned, and held in the peculiar fashion of the marijuana "joint." That same evening, March 22, 1983, Hamilton went to the Town Hall for the third time and this time met with another male transvestite bartender known as "Buffy." He asked Buffy about the possibility of getting some marijuana, but Buffy was reluctant and told him to deal direct. Therefore, Hamilton called over one of the other patrons who he knew to be a dealer and purchased what was subsequently tested and identified as 1.6 grams of marijuana. Again, at this time, he observed other patrons at the pool table in the building to be smoking what he believed was marijuana. About 11:00 p.m. that same night, Hamilton made a fourth buy in the Town Hall Restaurant, this time through Precious, who followed the prior procedure and made the purchase from an unidentified black male. This time, the substance tested out to be 1.6 grams of marijuana. When Hamilton went into the Town Hall again on March 23, 1983, Buffy was on duty and again refused to be the direct conduit for a purchase of marijuana. However, Hamilton contacted other patrons in the restaurant from whom he purchased two $6 bags of what was later tested and identified as marijuana. Again, at this time, no attempt was made to hide the marijuana, and Hamilton observed other people in the bar smoking what he believed to be marijuana. Hamilton again returned to the Town Hall Restaurant on the morning of March 24, 1983. When he entered, he saw neither Precious nor Buffy and was, instead, approached by the Respondent. Hamilton ordered a chicken sandwich, but Smith told him no food was ready. He then asked Smith if he knew where he, Hamilton, could get some marijuana, but Smith said he did not. Hamilton started out of the building, but happened to notice that one of the employees who was mopping the floor was one of the same people from whom his prior purchases were made. On the spot, with Smith standing by, Hamilton then purchased another 1.7 grams of what was tested and identified as marijuana. Later that day, March 24, 1983, Hamilton again went into the Town Hall, approached and was again rebuffed by Buffy, and instead made a purchase from some other unidentified individual in the bar. At that time, there were few patrons in the bar, and Hamilton observed the smoking of what appeared to him to be marijuana. When Hamilton entered the bar on March 25, 1983, Precious refused to deal with him and suggested that he deal with another black male named "Georgia." After observing Georgia make sales of some substance to other patrons, Hamilton approached him and purchased what was later tested and found to be marijuana. During the entire time Hamilton was in the Town Hall Restaurant on this date, he observed the open smoking of what he identified as marijuana from the method of smoking and the smell. Hamilton was again refused by Buffy ire the Town Hall on April 9, 1983. However, there was another patron at the bar who agreed to get him some stuff" and who then left the area. Shortly afterwards, a black male named "Sylvester" came into the restaurant, approached him, and sold him $20 worth of what was later tested and identified as cocaine. During this entire time, Buffy, an employee of Respondent, was standing behind and across the bar directly across from the sale--a distance of less than three feet. Hamilton's instructions prior to the operation were to attempt to purchase drugs in not only this establishment but also in others in the area, and he did. He offered no inducements separate from the purchase, though an informant accompanying him on one visit offered sexual favors to Buffy. A raid was conducted at the Town Hall on April 13, 1983, by agents of Petitioner and SPD. Marijuana was found on only one patron. Respondent Smith has had his beverage license for this establishment for approximately 14 months, during which time he has had no problem with Petitioner or other law enforcement authorities. It is his practice when hiring personnel to tell them to keep drugs out. His hours at the bar are from 9:00 a.m. to 5:00 p.m. on Monday through Thursday and from 11:00 p.m. to 3:00 a.m. on Friday and Saturday. While at this establishment, he is usually near the pool table. Though he does not recall being approached by Hamilton at the bar, he agrees that what Hamilton said transpired is probably correct, except for the sale of drugs. Respondent has a good reputation in the community as a law-abiding citizen. Several witnesses who have been in the Town Hall at different times of the day and night claim not to have seen anyone using drugs there.
Recommendation On the basis of the facts and conclusions above, it is RECOMMENDED: That Respondent's alcoholic beverage license be suspended for one year and that he pay a fine of $100 for each violation as alleged in Allegations 1, 2, 4, 6, 8, 9 and 10 in the Notice to Show Cause dated April 13, 1983. RECOMMENDED this 24th day of May, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1983. COPIES FURNISHED: Harold F. X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Harold H. Moore, Esquire Post Office Box 4311 Sarasota, Florida 33578 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Harold M. Rasmussen Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue This is a license discipline case in which the Division of Alcoholic Beverages and Tobacco seeks to suspend, revoke, and otherwise take disciplinary action against the Respondent and its license on the basis of allegations that the Respondent has violated Section 561.29(1)(a), Florida Statutes, by permitting patrons to engage in illegal activities on the licensed premises and by allowing the licensed premises to be used for the illegal keeping, selling, or delivery of controlled substances. The Respondent contends that no disciplinary action should be taken because the Respondent has qualified as a "responsible vendor," and has taken reasonable steps to attempt to prevent the conduct complained of in the Notice To Show Cause.
Findings Of Fact At all times relevant and material to this proceeding, a corporation named 3673 Bird, Inc. (hereinafter referred to as "the Respondent corporation"), has been the holder of alcoholic beverage license number 23-01224, series 4-COP, for licensed premises knows as Uncle Charlie's, which premises are located at 3673 Bird Road, Miami, Dade County, Florida. The Respondent is owned by Robert Sloate, who is also the sole officer of the Respondent corporation. Mr. Sloate does not take an active part in the day-to-day management of the licensed premises. Mr. Sloate makes only rare or occasional visits to the licensed premises. During November of 1991 and during the first few days of December of 1991, Mr. Sloate was hardly ever on the licensed premises. Mr. Sloate did not have personal knowledge of the events described in Paragraphs 5, 6, and 7 of these Findings of Fact. The business of the licensed premises is managed by a group of four managers. The Respondent corporation has a total of twenty-six employees, including the four managers. The Respondent corporation has performed the actions necessary to qualify as a "responsible vendor" within the meaning of Section 561.705, Florida Statutes, as amended by Chapter 91-60, Laws of Florida. 1/ Those actions include training and instruction sessions for managers and employees, meetings of employees, and the posting of signs to discourage underage sales and illegal activity involving controlled substances. The licensed premises were also equipped with TV cameras that cover both doors, the front bar, and the back bar. However, the TV cameras do not make a tape recording of what they cover, and there is no evidence that the TV monitors are watched by employees of the Respondent corporation on any regular basis. During the course of an undercover investigation that began on or about November 13, 1991, and continued until the licensed premises were raided on December 6, 1991, the following transactions involving controlled substances took place within the licensed premises: On or about November 14, 1991, a patron known as Mark sold two baggies, each containing approximately one-half gram of cocaine, to a confidential informant who was cooperating with the undercover investigation. 2/ On or about November 14, 1991, a patron known as Gus sold cocaine to a confidential informant who was cooperating with the undercover investigation. On or about November 14, 1991, a patron known as Mark sold cocaine to Detective Bales. (d) On or about to Detective Rivera. November 15, 1991, a patron known as Sergio sold cocaine (e) On or about Agent Lopez. November 15, 1991, a patron known as Clint sold cocaine to (f) On or about to Detective Bales. November 15, 1991, a patron known as Sergio sold cocaine (g) On or about Detective Bales. November 15, 1991, a patron known as Mark sold cocaine to (h) On or about Detective Rivera. November 15, 1991, a patron known as Mike sold cocaine to (i) On or about to Agent Lopez. November 15, 1991, a patron known as Sergio sold cocaine (j) On or about November 15, 1991, a patron known as Mike sold cocaine to Detective Fernandez. On or about November 21, 1991, a patron known as Sergio sold cocaine to Detective Bales. On or about November 21, 1991, a patron known as Sergio sold cocaine to a confidential informant who was cooperating with the undercover investigation. On or about November 22, 1991, a patron known as Sergio sold cocaine to Agent Lopez. Or or about November 22, 1991, a patron known as Wesley sold cocaine to Detective Bales. On or about November 22, 1991, a patron known as David sold cocaine to a confidential informant who was cooperating with the undercover investigation. On or about November 22, 1991, a patron known as Clint sold cocaine to Agent Lopez. On or about December 4, 1991, a patron known as Clint sold cocaine to Agent Lopez. On or about December 4, 1991, a patron known as Charles Garcia sold cocaine to Detectives Villanueva and Feria. The vast majority of the drug transactions described in the preceding paragraph were conducted in an open and casual manner, with no effort by either party to conceal the transaction. Most of the drug transactions described above took place when the licensed premises were quite crowded and noisy, which would have made it difficult for some of the transactions to be noticed by employees of the Respondent corporation. However, many of the transactions took place near employees of the Respondent corporation, and from the open nature of the transactions, it should have been obvious to the employees of the Respondent corporation what was going on. The flagrant nature of the illegal drug transactions taking place in the licensed premises during the period of the undercover investigation is illustrated by the following: The patron Sergio, who made several sales of cocaine to the undercover police officers and to the confidential informant, was so flagrant about his illegal activities that he carried a tambourine with him and would shake the tambourine to advise all who were interested that he had cocaine available for sale. At least one of the managers was aware of Sergio's tambourine shaking, because he testified that it annoyed him. It was obvious to anyone who troubled to look that Sergio was dealing in something, because after he shook his tambourine there would be several people who would approach him, hand him money, and receive from him small plastic baggies containing white powder. Sergio's cocaine sale activity was so casual that on at least one occasion he took a twenty dollar bill and delivered a baggie containing cocaine without even being specifically asked for cocaine. The casual nature of Sergio's activity is also indicated by the fact that he was not concerned about being asked for cocaine in the presence of two other people, and he carried numerous baggies of cocaine in his pockets. The patron Charles Garcia attempted to promote the ingestion of cocaine inside the licensed premises after he delivered cocaine to Detectives Villanueve and Feria. The undercover police officers observed numerous transactions during which a patron would approach another patron, deliver money to the other patron, and then receive a small plastic baggie from the person who took the money. These observations included the observation of numerous such transactions involving Sergio (the tambourine man) and several involving the patron known as Mike. On one occasion during the investigation, Detective Rivera observed a patron exiting the restroom with white powder beneath his nose. When Detectives Villanueva and Fiera were purchasing cocaine from Charles Garcia on December 4, 1991, a patron named Ray asked Detective Fiera to join him in the restroom. In the restroom, Ray ingested a white powder that appeared to be cocaine in front of both Detective Fiera and the restroom attendant. All of the drug transactions described in Paragraphs 5, 6, and 7 of these Findings of Fact took place within the licensed premises during business hours, when employees and patrons were present on the licensed premises. None of the employees ever called the police or asked any of the parties to the drug transactions to leave the licensed premises. The Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, and the Metro-Dade Police Department executed a raid on December 6, 1991, at the licensed premises. After the raid was completed, thirty-four packets of unclaimed cocaine were found on the floor, as were several pills and several packets of marijuana. An unclaimed pen knife with cocaine on the tip was also found. On the night of the raid, one of the bartenders tossed a baggie of cocaine over the bar. That bartender was arrested for possession of cocaine. On the night of the raid, Sergio was found to be in possession of three baggies of cocaine, as well as other controlled substances. The investigative expenses incurred in the course of the undercover investigation of the Respondent corporation's premises totaled one thousand one hundred forty-eight dollars ($1,148.00). In brief summary, the vast majority of the drug transactions described in Paragraphs 5, 6, and 7 of these Findings of Fact, took place in plain view. The open exchanges of drugs and money, the casualness with which those selling drugs on the licensed premises went about their business, and the frequency of the drug transactions, all demonstrate a pattern of flagrant, persistent, repeated, and recurring violations. The nature and frequency of the subject drug transactions were such that they would have been noticed by a reasonably diligent licensee.
Recommendation On the basis of all of the foregoing, it is recommended that the Division of Alcoholic Beverages issue a final order in this case revoking the Respondent corporation's alcoholic beverage license number 23-01224, series 4-COP, for the premises located at 3763 Bird Road, Miami, Dade County, Florida, and imposing an administrative fine in the total amount of $18,000.00. RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of December 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of December 1991.
Findings Of Fact At all times relevant hereto, Robert Moore, Jr., held a 2 COP License No. 39-00672 issued by the Division of Alcoholic Beverages and Tobacco (DABT) to operate The Cycle Lounge at 2818 D. Osborne Avenue, Tampa, Florida. (Exhibit 1) After receiving a report from the Tampa Police Department that the police believed cocaine was being sold in The Cycle Lounge, DABT brought in Agent Ray Thompson, a certified law enforcement officer and a ten-year employee of the Department, as an undercover agent to investigate the report. Thompson first visited The Cycle Lounge in the late afternoon on November 8, 1989. After seating himself at the bar and ordering a small beer, Thompson asked the bartender (later identified as Barry Atwood) if he knew where Thompson could get a 20 piece of crack. Atwood forthwith called a black male from the game room, who he called Bubba, and told Bubba that Thompson wanted to buy crack. Bubba took four or five "rocks" from his pocket for Thompson to select the one he wanted. Thompson did so and paid Bubba, subsequently known as Russ, $20. The purchase was later analyzed and determined to be cocaine. Thompson was in The Cycle Lounge a total of approximately 15 minutes between the time he entered, ordered and drank a beer, bought crack cocaine and departed. During his first visit, Thompson, a trained drug investigator, observed what appeared to be several transactions involving drugs in the lounge. Thompson returned to The Cycle Lounge on November 9, 1989, in the late afternoon and seated himself at approximately the same place at the bar he had occupied November 8, 1989. Atwood was behind the bar and appeared to be in charge of the operation of the lounge, and Bubba was in the pool room part of the lounge. Thompson again asked Atwood about crack and was told to go into the pool room to see Bubba. Thompson approached Bubba and again purchased crack cocaine for $20. At the time of this purchase, the noise level in the lounge was low as only the television was on, and the purchase was made with no effort at concealment or attempt to prevent others in the lounge from observing the transaction. Again Thompson was in the lounge a short time before departing. On November 10, 1989, at approximately the same time, Thompson returned to The Cycle Lounge; seated himself at the same place at the bar, behind which Atwood was managing the lounge; ordered a beer; and proceeded into the pool room where he bought a "dime" of crack cocaine for $10. At this time, he observed in the lounge a black male Thompson later identified as Robert Moore, Jr., the licensee. Thompson returned to The Cycle Lounge November 11, 1989, took his usual seat at the bar, ordered the usual beer, and was approached by Bubba while seated at the bar with Atwood behind the bar. After open negotiations, Thompson paid Bubba $10 for crack cocaine and shortly thereafter departed the bar. On November 15, 1989, Thompson entered The Cycle Lounge around 7 p.m. at which time he observed more people in the bar than had been there all week long. While going through the parking lot behind the lounge building, several people tried to sell Thompson marijuana and crack. Atwood was just outside the lounge playing checkers and appeared upset. When Thompson entered the lounge, Atwood followed and sold him a beer. Thompson then went into the pool room where he purchased crack cocaine from Bubba from whom he learned that Atwood was upset because other dealers were selling crack to his customers. When Thompson returned to the bar, Atwood asked if he wanted to buy something. Thompson returned to The Cycle Lounge on November 17, 1989, and observed Atwood selling crack cocaine. Shortly after Thompson arrived, the police raided The Cycle Lounge and made some arrests. During the period between August and November 1989, Louis Murray, a confidential informant (CI) employed by the Tampa Police Department, made several visits to The Cycle Lounge in company with another CI. Both CI's were transported to the vicinity of The Cycle Lounge by Tampa police detectives, searched to insure they had no contraband, and given money with which to buy cocaine in The Cycle Lounge. During August, Murray visited The Cycle Lounge twice. The first time, he observed the CI accompanying him purchase crack cocaine from Morris Moore, the brother of Robert Moore. On the second August visit, Murray purchased crack cocaine from Atwood. These purchases were turned over to the police when the CI's left the lounge. Murray, in company with another CI, made two visits to The Cycle Lounge in September and again in October. Each time one of the CI's purchased crack cocaine in the lounge in an overt, unconcealed manner. On at least one occasion Murray saw Robert Moore, Jr., in the lounge while cocaine was being openly sold. All of the buys made by the CI's were in an open area of the lounge, and on each visit they observed what appeared to be other drug transactions. The Tampa Police Department received several complaints about The Cycle Lounge and drug-related traffic to and from this place. Neighbors had complained about this traffic, and the lounge was well known as a place at which crack cocaine could be bought. As such, The Cycle Lounge was a public nuisance. Morris Moore, the brother of the licensee, was the manager of The Cycle Lounge before he was arrested for selling cocaine. He was replaced as manager by Grady Atwood. Respondent testified that he made no background investigation of Atwood before installing Atwood as manager at The Cycle Lounge. Respondent further testified that he spent only a short time each day in The Cycle Lounge after he opens up in the morning and that he never observed any drug deals in The Cycle Lounge. He further testified that he doesn't think Thompson saw him in the lounge while crack sales were being negotiated because the person he saw was probably his brother Morris who bears a striking resemblance to him.
Recommendation It is recommended that a Final Order be entered revoking the 2 COP licenses of Robert Brown, Jr., d/b/a The Cycle Lounge. ENTERED this 20th day of February, 1990, in Tallahassee, Florida. K.N. AYERS 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 20th day of February, 1990. COPIES FURNISHED: Elizabeth C. Masters, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1000 Joseph H. Ficarrotta, Esquire 600 Madison Street Tampa, FL 32602 Leonard Ivey Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1000 Stephen R. MacNamara Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1000
Findings Of Fact At all times pertinent to the issues herein, Respondent held Florida Alcoholic Beverage License 2-COP No. 54-00184 at Stew's Bar located at Third Avenue, Maloney Subdivision, Stock Island, Monroe County, Florida. The parties stipulated that Robert Stanley Gardner, Respondent's husband, has a financial interest in the leased premises. Based on Respondent's testimony, it is clear that she did not understand the nature of her stipulation regarding Robert Stanley Gardner's interest in the licensed premises, and he in fact has no interest therein. Stew's Bar has had a reputation with the Monroe County Sheriff's Department as a trouble spot for a considerable period of time prior to the events which took place here. However, upon questioning, Major Somberg, who had a computer printout of all calls received by his office relating to this establishment, was unable to cite even one previous call relating to narcotics. Nonetheless, based on the records of law enforcement agencies in the area, an undercover operation was instituted against Respondent's establishment in late April and early May 1984. On April 25, 1984, at approximately 3:50 p.m., Gale Sampson, an investigator with the Miami office of the Division of Alcoholic Beverages and Tobacco, entered Respondent's bar in an undercover capacity. She spent a period of time observing patrons and employees and noticed a Latin male who had a towel rolled up under his arm. She observed this individual take a packet from the towel, wave it in the air, and say "Haircut." The bartender at the time, Geraldine Hook, laughed, as did several patrons, but made no effort to stop this individual. This packet, a plastic bag containing a white powdery substance, was consistent with the way cocaine is packaged. This package was not, however, confiscated, nor were the contents identified. The following day, at 5:45 p.m., Sampson again went into the bar. She saw Hook again working behind the bar and asked Hook if she knew where she, Sampson, could get some cocaine. Hook turned and asked a female by the name of Alvarez, who said "Yes." Alvarez and Sampson agreed upon a price of $45 for a half gram, and Sampson gave Alvarez $50. Somewhat later, Alvarez returned to the bar and gave Sampson a half gram package and $5 in change. The contents of this package were subsequently tested in the laboratory of the Monroe County Sheriff's Office and were determined to be cocaine. Hook categorically denies arranging this sale. She admits to knowing Alvarez, but denies knowing even if there was any deal between Alvarez and Sampson. She also contends that when Sampson approached her to buy cocaine, she refused to get Sampson any and told Sampson that if she wanted any, she would have to get it herself. This last admission serves to defeat the credibility of Hook's denial. Somewhat prior to this transaction between Sampson and Alvarez, Beverage Investigator Clark A. Raby, assigned to the Live Oak, Florida, office, but in Key West on the same undercover operation, entered Respondent's bar at 4:50 p.m. as a backup for Sampson. He sat at the bar and ordered a beer from Hook. During the course of the evening, he had a conversation with the bartender and various patrons. He saw one Latin and two white males light and pass around what appeared to him to be a marijuana cigarette right at the door. He later went into the men's room and found a Latin male and a white female in the men's room rolling a cigarette. When he excused himself, she said it was all right--she was in there all the time. Sampson went back into the bar at 11:35 a.m. on April 27 and went right to the bar. She was approached there by a Latin male subsequently identified as Vernesto Seguseo, who asked her to sit in a booth with him. She did, and during the conversation asked him if he was an employee of the establishment. He replied that he was a bouncer, but not on duty. She asked him if he could tell her where she could buy cocaine. He said he had it right there, and she asked him how much one-half gram would cost. He replied "$40," whereupon she paid him as requested. In response, he took a small plastic packet out of his pocket and gave it to her. The contents of this packet were subsequently chemically analyzed by the Monroe County Sheriff's Office and determined to be cocaine. Though this individual never specifically stated he was an employee of this establishment, and evidence indicates from Respondent's witnesses that he was employed as a bouncer at another bar in the area, he was nonetheless seen in this establishment previously in areas reserved for employees of the bar. The testimony of Ms. Otona, the bar manager, and at least one barmaid indicates that this individual was not employed by Respondent's establishment until May 15, 1984, and, at the time of this sale, was not a bar employee. Raby also entered the bar at 4:50 p.m. on April 27, 1984. He went to the bar, where he ordered a beer from Hook. Shortly afterward, a black male offered to sell him a "Columbian joint" for $1.50. Raby paid him $2 and got the cigarette. Hook was there all the time and did not try to stop the transaction. However, there is some doubt as to whether she saw it. Raby testified that when the transfer of the cigarette was made to him, the cigarette was passed at the level of, or even below the level of, the bar, and it is very possible that Hook did not see the transaction occur. Hook indicates that at that time she was wearing dark glasses to cover the effects of a beating she had received from her boyfriend and did not see anything like what Raby described. Consequently, it is most likely that she did not. This cigarette was subsequently analyzed by the laboratory of the Monroe County Sheriff's Office and determined to be marijuana. This same black male individual, subsequently identified by the initials "J. J.," told Raby at the time that there was good cocaine available for $40 from "Latin brothers." On that same afternoon, Raby overheard Geraldine Hook agree to smoke and saw her smoke what appeared to be and smelled like marijuana right outside the back door of the establishment. There is no evidence, however, whether or not the substance was in fact marijuana. On April 28, 1984, Raby went into the Respondent's bar at approximately 5:30 in the afternoon and ordered a beer from the bartender, Joyce. J. J. came up and asked how he liked the cigarette he had purchased the day before, then asked if he wanted to buy some cocaine for $40 a half gram. Raby indicated that he did, whereupon J. J. walked off for awhile and came back. When J. J. came back to the bar, Raby put two $20 bills out which J. J. took. He again went away and came back a moment later with a packet which he passed to Raby beside the bar. He did nothing to hide it, and Joyce was there and did nothing to stop it. Raby is not sure if Joyce saw this or not, however, as he was not looking at her at the time. The substance was subsequently identified by the laboratory as cocaine. Sampson was also at the bar early in the morning of April 28, sitting with Vernesto Seguseo. The barmaid, Joyce, said she was taking $15 from the register and someone would replace it later. Seguseo agreed. Beverage Investigator Beverly Jenkins, who had received word from a confidential informant that an employee of the bar, a maintenance man described as a short black male with a beer belly and no teeth, was selling cocaine. When she first went into the bar on May 14, she saw this man there behind the bar filling the orders and taking orders from Geraldine Hook, the barmaid. When Jenkins talked with him, he admitted he worked there all the time, but did not want to engage in any long discussions at the time. He asked Jenkins to come back without her partner. On May 15, at approximately 5:55 p.m., she went back alone. This individual previously mentioned, who was subsequently identified as "Peter," immediately approached her and offered to introduce her around and "do her right." Jenkins asked him for cocaine. Peter went to another employee, came back, and said he could not provide it. Later, however, he offered to use cocaine with Jenkins if she would go with him. She refused and said she was going to leave, at which point he asked her to wait for him to finish work. Jenkins agreed to this and later left the bar and went out to her car. Shortly thereafter, Peter came out and got in Jenkins' car, at which point he offered to sell her a half gram of cocaine for $40. He offered to reduce the price if she would buy more than one packet. Jenkins agreed to buy three one-half gram packets for $35 each. She paid Peter $105 and received from him a substance which was subsequently identified as cocaine after being analyzed by the Monroe County Sheriff's Office laboratory. At 6:20 p.m. on the following day, May 16, when Jenkins went back in the bar, Peter was not there, but Vernesto, a former employee, was. Within a few minutes, Peter came in and approached Jenkins, asking her if she wanted more cocaine. When she said she did, he asked her to come outside. She resisted at this time because she was playing pool. When she finished the game, Jenkins went over to Peter, who took her outside and sold her a half-gram of a white powdery substance for $30 on the condition that she always buy from him and not from someone else. The substance Jenkins purchased on this evening was subsequently analyzed and determined to be cocaine. While Jenkins was in the bar this evening, she noticed there was a lot of traffic going to and from the rest rooms. She saw Peter go into the rest room with a patron, and she noticed that as he entered the rest room he was taking from his pocket a plastic bag similar to those which he had sold her previously. Jenkins did not see this transaction go down, however, but later saw the patron leave the rest room. The following day, Jenkins noticed that Gerry (Geraldine Hook) was back behind the bar and looked tired. Jenkins noticed that a female patron followed Gerry and her boyfriend into the back, where she saw Gerry breathe in through her nose a white powder. Jenkins asked to join the party at the time, but was refused. The female patron was identified as Donna, a clinic employee, who said at the time they were all a friendly group. This same patron, Donna, went into the restroom later with a Latin male and shortly after came out, rubbing her nose in a fashion consistent with cocaine use. Geraldine Hook, on the other hand, denies under oath that she was ingesting cocaine. Hook contends that she was explaining to her boyfriend why she could not get off work early and that the other lady was translating her comments to her boyfriend, who does not speak English. Hook contends that she does not ever snort or ingest cocaine because she is allergic to all drugs that are in the cocaine family and in support of that statement submitted a medical record from the Florida Keys Memorial Hospital emergency room showing that on April 23, 1984, when who was treated in the hospital because of being beaten by her boyfriend, she listed as allergies novacaine and tetracycline, tetramycin, morphine, and drugs of a similar nature. Hook also contends that she has asthma and could not use cocaine without it closing off her breathing passages. Emergency room records reflect that she has been previously diagnosed as an asthma sufferer. Later on May 17, Jenkins went back into the bar and went to the ladies' room with Peter. Peter offered to sell her two bags of cocaine for $60. After they entered the rest room, Peter closed the door halfway prior to making the transaction; however, the substance which he passed to Jenkins on that occasion and for which he charged $60 was subsequently identified as cocaine. Later that evening, Jenkins again went into the bar and saw Peter working. They played pool for a while, and she asked him for more cocaine. They went to the ladies' room again, where she paid him $60 for one gram of a substance which was subsequently identified as cocaine. During this entire transaction, the door was not closed. That same evening, Jenkins also saw Peter go into the men's room with three Latin males who, shortly after entering with him, came out rubbing and wiping their noses. This practice of patrons going into the restrooms and coming out rubbing their noses was also observed by Beverage Agent Jose Iturralde, who entered the bar undercover on both the 14th and the 15th of May, but who was unable to make a buy from Peter or anyone else because, he believes, he and the other agents had already been identified as agents. A raid in conjunction with the Monroe County Sheriff's Office and other law enforcement agencies was conducted on the premises on May 18, 1984, pursuant to a search warrant properly issued. Arrested at that time were Seguseo, Geraldine Hook, and several other Latin named patrons. Pursuant to the search carried out, the following items were found: one and one-half grams of cocaine behind the jukebox; 26 clear baggies, each containing a half-grain of cocaine, behind the bar counter on the floor; a partially smoked marijuana cigarette on top of the cash register; 14 baggies, each containing cocaine, on the bar counter; a partially smoked cigarette below and behind the bar on the southeast corner of the bar on the floor; 22 baggies of cocaine on the floor behind the bar near the entrance (these 22 baggies were contained in a white envelope) 9 syringes in a small storage room off the main bar; and a Marlborough cigarette pack containing a clear plastic bag of cocaine on one of the booth seats. Geraldine Hook does not recall seeing any patron waving a plastic bag on April 25, as testified to by Agent Sampson; however, she contends that, because of the fact that the police frequently come into the bar looking for narcotics, it is a habit of some of the patrons, as a joke, to wave around clear plastic bags which do not contain cocaine. These instances generally result in the type of laughter described by Sampson. When Hook was hired by the manager, Ms. Otona, she was told, and she recalls that other girls who had been hired there are told, that they, as employees, cannot have or use drugs on the premises or allow anyone in who uses drugs; that if they see anyone they think is using drugs, they are to put that person out. Any violation of these rules results in discharge of the employee. Hook admits having seen mixed couples going into the rest rooms from time to time, but considers this to be acceptable behavior, since there are no locks on the doors. The rules for employees, which are made known to the employee when hired, were confirmed by another barmaid, Brenda L. Gillespie. She added to the no-drug policy such things as no drinking to excess and no kissing during work, and she herself recalled having barred numerous people and having seen others barred over the past few months because of the new management (that of Mrs. Gardner, Respondent, and Ms. Otona, manager) and their attempts to do away with the previously bad reputation the bar had for drugs. Because of this, the waitresses have taken substantial abuse. Ms. Gillespie confirmed Ms. Hook's comments regarding the joke made of the waving of plastic bags, contending that the patrons are trying to test the barmaids to see how far they can go. Gillespie also contends that she is the one who pried the locks off the restrooms to prevent patrons from locking themselves in the rooms to use drugs and has many times told patrons to keep the drugs out, going so far as to call the police. Notwithstanding the testimony of all of the beverage agents that they had never seen the Respondent or the manager on the premises, Gillespie opined that either one or both are there all the time or are immediately on call, since they live in the immediate vicinity of the bar. Further, she contends that the agents were there on irregular hours or were so busy pretending to be drunk that it was impossible for them to see anyone. She recognized the undercover agents as agents, but she did not let on because she wanted their help. Louise Otona, currently the manager of Stew's Bar for Katherine Gardner, the owner, indicated that she and Respondent realized about one and a half or two months ago that there was a problem at the bar because of Respondent's husband, Stanley Gardner. Mr. Gardner is a cocaine addict, but has no interest in the premises or in the license. Because of his problem, however, Ms. Otona keeps all the money from the sales, and none is left at the bar. Respondent and Ms. Otona have barred anyone they knew who had any connection with Mr. Gardner and his drug habit. Ms. Otona has also fired anyone she knows who has anything to do with drugs and has taken over from the barmaids throwing people out. Ms. Otona admits that drugs may have been sold in the bar, but not with her knowledge or with the knowledge of her employees, because both she and Respondent have tried to do their utmost to keep drugs out. The waitresses in Stew's Bar are hardworking girls who would not knowingly jeopardize their livelihood by selling or permitting drugs to be sold in the bar. Ms. Otona and Respondent have worked hard to make Stew's Bar clean again and have made progress. Ms. Otona has received many compliments from the police on these efforts. With regard to Peter, the Latin male who sold to Jenkins on several occasions, Ms. Otona contends that Peter was fired by her personally on May 15, 1984, and could not then have been an employee of the bar at the time the sales were made. However, many of the barmaids' boyfriends help behind the bar, as do some patrons. Consequently, it may appear that individuals are employees who are working behind the bar when, in fact, they are not. Respondent testified similarly to Ms. Otona. Respondent does not use drugs herself, nor does she drink. Her husband, Stanley, is a drug addict, and she has started work to have him committed because of his addiction. He has nothing to do with the bar, however, and he is not the landlord. As far as J. J.'s coming into the bar is concerned, J. J. was barred from this establishment prior to the incidents in question, but keeps coming back. Respondent has called the police to have him thrown out, but nothing seems to help.
The Issue The issue posed for decision herein is whether or not the Respondent's alcoholic beverage license should be suspended, revoked, or otherwise disciplined on the grounds stated in the Notice to Show Cause filed herein dated April 13, 1983.
Findings Of Fact During times material herein, The Chosen Few Motorcycle Club (herein Respondent) held alcoholic beverage License 68-629, Series 2-COP, issued in the name of Walter L. Vann and Leroy M. Allen. The premises is located at 1782 27th Street, Sarasota, Sarasota County, Florida. On April 13, 1983, the Division issued an Emergency Order of Suspension of The Chosen Few Motorcycle Club beverage license together with a Notice to Show Cause charging that employees and patrons of The Chosen Few engaged in numerous controlled substance transactions and use of controlled substances while on the licensed premises. Further, it was alleged that because of such controlled substance sales and use, the premises constituted a public nuisance. Respondent's place of business is well known to the intelligence unit of the Sarasota Police Department as a place where sales of narcotics and their use are conducted inside the premises. This knowledge has been gained from intelligence reports and investigations conducted by undercover agents during the period March 21, 1983, to April 9, 1983. (Testimony of Sarasota Police Department Sergeant Jim Fulton and Beverage Officer Keith Hamilton.) Beverage Officer Hamilton was assigned to an investigation of bars and restaurants in the area of Respondent's tavern during late March and early April, 1983. Officer Hamilton has received detailed training in the detection of controlled substances, including marijuana, and has participated in numerous drug investigations since his employment by the Division as a Beverage Officer. Officer Hamilton is a qualified narcotics investigator and is familiar with the appearance and smell of cocaine and marijuana. At approximately 11:20 p.m. on March 21, 1983, Officer Hamilton entered The Chosen Few and ordered a beer. Officer Hamilton struck up a conversation with an individual who identified himself as a part-time employee of The Chosen Few and went by the street name of "Freak." Freak openly sold to Officer Hamilton a capsule which was later identified by the Florida Department of Law Enforcement (FDLE) crime laboratory as cocaine. Freak transferred the capsule of cocaine in an overt manner from a brown medicine bottle which he had on his person and which contained numerous such capsules to c Officer Hamilton in exchange for $10.00. The item was properly bagged, sealed and receipted by Officer Hamilton, and thereafter submitted to the FDLE crime laboratory. Analyst Anthony Keith Zibernia identified the capsule as cocaine. Prior to analyzing the substance, Analyst Zibernia noted that that capsule, as with all other evidence which comes into the FDLE crime laboratory, was properly taped/sealed and tagged upon submission to the laboratory. (Petitioner's Exhibit 2.) While on the licensed premises of The Chosen Few on March 21, 1983, Officer Hamilton observed the open smoking of marijuana by patrons. Officer Hamilton based his testimony on the aroma of the substance being smoked by the patrons and by the manner in which the cigarettes were being handled and smoked by the patrons. On March 22, 1983, at approximately 9:00 p.m. Officer Hamilton returned to the licensed premises of The Chosen Few and inquired of the on-duty bartender, who identified himself as "Mose," as to the availability of marijuana. Mose advised Officer Hamilton that he could obtain such substance for him and Officer Hamilton in turn gave Mose a $10.00 bill. Mose left from the bar area and went among the patrons of the establishment. Upon his return, he handed to Officer Hamilton, from behind the bar, a manila envelope containing a substance, later analyzed by the FDLE crime laboratory and found to contain cannabis, together with $4.00 in change. The substance purchased from Mose, which Officer Hamilton bagged, sealed, and receipted, was submitted to the FDLE crime laboratory. (Petitioner's Exhibit 1 and testimony of Analyst Anthony Zibernia) Officer Hamilton returned to The Chosen Few premises at approximately 8:00 p.m. on the evening of March 23, 1983. At that time, he inquired of the on-duty barmaid who was then serving alcoholic beverages to patrons as to the availability of marijuana. That barmaid pointed out to Officer Hamilton an individual among the patrons from whom marijuana could be obtained. Officer Hamilton called the patron pointed out by the barmaid over to the bar and inquired as to the availability of marijuana. That individual advised that he had some for sale and thereupon sold, in an overt transaction at the bar, a manila envelope, containing what was later identified by the FDLE crime laboratory as marijuana, in exchange for $10.00. The on-duty barmaid had an unobstructed view of the entire transaction. Following the purchase of the marijuana, Officer Hamilton then purchased from the barmaid a pack of rolling paper and proceeded to roll one marijuana cigarette on the bar in front of the barmaid without objection from her. (Petitioner's Exhibit 3) Officer Hamilton next returned to the licensed premises of The Chosen Few on the afternoon of March 24, 1983, at approximately 3:30 p.m. Officer Hamilton approached the bar and inquired of the on-duty barmaid who was working behind the bar as to the availability of marijuana. She advised Officer Hamilton to check with patrons at the pool table for marijuana. Officer Hamilton, as instructed, inquired as to the availability of marijuana from the patrons and successfully purchased from a patron, in an open transaction, a substance in a manila envelope, later identified by the FDLE crime laboratory as being marijuana, in exchange for $6.00. The barmaid had an unobstructed view of this transaction. Immediately upon the purchase by Officer Hamilton, he observed the barmaid rolling a marijuana cigarette on the bar which she proceeded thereafter to smoke. Based on the manner in which the substance was rolled and the way in which it was smoked, Officer Hamilton concluded that it was, in fact, marijuana. The item purchased by Officer Hamilton on the afternoon of March 24, 1983, was properly bagged, sealed, receipted and, following the submission to the FDLE crime laboratory, was determined by Analyst Anthony Zibernia to contain cannabis. (Petitioner's Exhibit 4.) Officer Hamilton returned to the licensed premises of The Chosen Few at approximately 9:00 p.m. on March 24, 1983, and again observed Mose serving as a bartender. At approximately 9:00 p.m. Officer Hamilton inquired of Mose as to the availability of marijuana. Mose advised he would check and Officer Hamilton gave him $10.00. Mose exited from behind the bar and returned approximately two minutes later to the area behind the bar , transferred to Officer Hamilton over the top of the bar a manila envelope containing a substance, later identified by Analyst Zibernia to be marijuana, with $4.00 in change. The transaction was made in an open manner add the substance purchased by Officer Hamilton was properly bagged, sealed, receipted and submitted to the FDLE crime laboratory. As stated, it was analyzed and found by Analyst Zibernia to contain cannabis. (Petitioner's Exhibit 5) While on the premises of The Chosen Few on the evening of March 24, Officer Hamilton again observed the use of marijuana by patrons on the premises. Such use by the patrons was completely open, without any attempt on the part of the patrons to hide such use. Officer Hamilton next returned to the licensed premises of The Chosen Few on the evening of April 9, 1983 While seated at the bar he inquired of a patron as to the availability of marijuana. The negotiations for the purchase of marijuana were made at the bar in front of the on-duty bartender, who was later identified by Officer Hamilton as one of the licensees, Leroy Allen. The negotiations were carried on in a normal conversational tone immediately in front of Allen. Officer Hamilton purchased from a patron, in an open manner, one clear baggie, later analyzed by the FDLE crime laboratory and found to contain cannabis, in exchange for $6.00. The substance was bagged, sealed, receipted and submitted to the FDLE crime laboratory for analysis by Analyst Anthony Zibernia. (Petitioner's Exhibit 6) Respondent's Defense Respondent presented the testimony of licensees Walter Vann and Leroy Allen. Both licensees testified that they instructed their employees that no drugs were to be used on the premises and instructed those patrons who were observed using marijuana to leave the premises. Licensee Allen could not recall any discussion of marijuana sales by Officer Hamilton, nor could he recall any drugs ever being sold on the premises. Licensee Allen and Mose Williams stated that they "cannot stand the smell of marijuana." Mose Williams denied making any sales of marijuana to Officer Hamilton and "throws out patrons he finds using marijuana." Additionally, like bartender Mose Williams, barmaid Gloria Williams also claims to throw out any patrons she observes using marijuana and denied assisting Officer Hamilton, or any patron in their effort to purchase marijuana at The Chosen Few Motorcycle Club. Rebuttal Petitioner presented the testimony of confidential informant, Harold Sutton. Informant Sutton accompanied Officer Hamilton at The Chosen Few and observed the occasions when Officer Hamilton purchased marijuana from Mose Williams and the on-duty barmaid. Informant Sutton also observed the on-duty barmaid roll and smoke a marijuana cigarette at the bar on March 24, 1983.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's alcoholic beverage license No. 68-629, Series 2-COP, be suspended for a period of one hundred eighty (180) days and that Respondent pay a fine of two hundred fifty dollars ($250.00) for each of seven (7) violations alleged in the Notice to Show Cause filed herein dated April 13, 1983. RECOMMENDED , this 23rd day of June, 1983, at Tallahassee, Florida. JAMES E. BRADWELL, 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 23rd day of June, 1983.
Findings Of Fact At all times material hereto, Respondent, Quinto Patio Bar, Inc., d/b/a Quinto Patio Bar, held alcoholic beverage license number 23-02231, series 2-COP, for the premises known as Quinto Patio Bar, 1552 West Flagler Street, Miami, Dade County, Florida. In August 1987, a joint task force was formed consisting of police officers from Metropolitan Dade County and the City of Miami, as well as investigators of the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT) , to investigate narcotics complaints against numerous business establishments in Dade County. Among the businesses targeted was the licensed premises at issue in this case. On August 27, 1987, DABT Investigator Oscar Huguet and City of Miami Investigator Pedro Pidermann, operating undercover, entered the licensed premises in furtherance of the aforesaid investigation. Accompanying Investigators Huguet and Pidermann was a confidential informant (CI), who would accompany them on subsequent visits. During the course of this visit, and three other visits that predated September 5, 1987, the investigators familiarized themselves with the licensed premises, and became acquainted with the employees and patrons of the bar. On September 5, 1987, Investigators Huguet and Pidermann, in the company of the CI, returned to the licensed premises. Upon entering the premises, the investigators proceeded to play a game of pool and directed the CI to see if any drugs were available in the bar. The CI walked to the bar, spoke with employee Maria, and accompanied her back to the pool table. At that time, Maria offered to sell the investigators a gram of cocaine for $50. Investigator Pidermann handed Maria a $50 bill, Maria removed a clear plastic packet of cocaine from her pants' pocket and handed it to the CI, and the CI handed it to Investigator Huguet. Huguet held the packet up to the light at eye level, and then commented that it "looks like good stuff." This transaction took place in plain view, and in the presence of several patrons. On September 16, 1987, Investigator Huguet and the CI returned to the licensed premises and seated themselves at the bar. Huguet struck up a conversation with the barmaid Maria, and asked whether she had any cocaine for sale. Maria responded that the individual (later identified as Bandera) who brings in the "stuff" had not come in yet, but to come back the next day. Huguet told Maria he would return the next day and to reserve two grams for him. On September 17, 1987, Investigator Huguet and the CI returned to the licensed premises to make the purchase of cocaine arranged the previous day. Upon entry, Maria told Huguet that the man (Bandera) who sold the cocaine had just left through the front door. Huguet gave the CI $100, and told him to follow the individual and make the purchase. These conversations occurred in the presence of Yolanda, another employee of the licensed premises. After the purchase from Bandera, the CI returned to the bar and handed Investigator Huguet 4 clear plastic bags of cocaine. Huguet examined the bags at eye level and in the presence of Maria, and placed them in his shirt pocket. On September 18, 1987, Investigators Huguet and Pidermann, together with the CI, returned to the licensed premises and began playing pool. A short time later Bandera entered the bar and, upon being motioned over by the CI, approached the investigators. Upon greeting Bandera, Huguet asked him how much cocaine $100 would buy. Bandera replied "two grams", whereupon Huguet borrowed $50 from Pidermann to which he added $50 from his pocket, and tried to hand it to Bandera. Bandera, who had not previously met the investigators, told him no, to meet him in the restroom. Huguet met Bandera in the restroom, and purchased two grams of cocaine for $100. Upon exiting the restroom, Huguet observed Maria looking at him, held up the two clear plastic bags of cocaine, and mouthed the words "thank you" to her. On September 24, 1987, Investigators Huguet and Pidermann, together with the CI, returned to the licensed premises. During the course of this visit, Bandera was observed seated at the bar conversing with Maria. Pidermann and the CI approached Bandera, and asked whether he had any cocaine for sale. Bandera responded yes, and invited Investigator Pidermann to the restroom to consummate the transaction. Pidermann met Bandera in the restroom and purchased two grams of cocaine for $100. Upon exiting the restroom, Investigator Pidermann displayed the cocaine to Investigator Huguet and the CI above the bar. This display occurred in plain view and in the presence of several patrons. On September 25, 1987, Investigators Huguet and Pidermann, together with the CI, returned to the licensed premises and proceeded to play pool. A short time later, Bandera entered the bar, approached the pool table, and placed two clear bags of cocaine on top of the pool table in front of Investigator Huguet. Huguet asked Bandera how much the cocaine would cost and he stated $100. Huguet gave Bandera the money, picked up the packets and held them at eye level for examination. This transaction took place in plain view, in the presence of numerous patrons, and was observed by employee Asucercion. On October 2, 1987, Investigators Huguet and Pidermann returned to the licensed premise. During the course of this visit, Huguet engaged Maria in general conversation and inquired as to the whereabouts of Bandera. Maria advised Huguet that Bandera was probably at the Yambo Bar, and that if he wanted cocaine to see him there. Investigator Huguet left the licensed premises and went to the Yambo Bar, located approximately one block away. There he met with Bandera and told him that he wanted to purchase cocaine but that Pidermann had the money at the Quinto Patio Bar. Bandera told Huguet he would meet him out back of the licensed premises. Huguet returned to the Quinto Patio Bar and spoke with Investigator Pidermann in the presence of employee Asucercion. Huguet told Pidermann that for $100 Bandera would supply the cocaine. Pidermann gave Huguet the money, and Huguet went out back to purchase the cocaine from Bandera. After the purchase from Bandera, Investigator Huguet returned to the bar and placed two clear plastic bags of cocaine on the bar counter in front of Investigator Pidermann and Asucercion. Pidermann picked up the cocaine, examined it, and placed it in his pocket. On October 3, 1987, Investigators Huguet and Pidermann returned to the licensed premises and seated themselves at the bar. While the investigators were being served by Maria and an unidentified barmaid, Huguet inquired as to the whereabouts of Bandera. Maria replied that he was probably at the Yambo selling cocaine. Investigator Huguet left the licensed premises, met Bandera at the Yambo Bar, and arranged the same drug deal they had made the previous day. Huguet returned to the Quinto Patio Bar and spoke with Investigator Pidermann in the presence of Maria. Huguet again told Pidermann that for $100 Bandera would supply the cocaine. Pidermann gave Huguet the money, and Huguet went out back to purchase the cocaine from Bandera. After the purchase from Bandera, Investigator Huguet returned to the bar and seated himself next to Pidermann. In front of Maria and the unidentified bar maid, Huguet wrapped the two clear plastic bags of cocaine in a napkin and handed them to Pidermann. All of the events summarized in the preceding paragraphs took place at the licensed premises during normal business hours. At no time did respondent's employees express concern about any of the drug transactions. In fact, the proof demonstrates that the employees knew that cocaine was being sold, delivered, or possessed on the licensed premises on a regular, frequent, and flagrant basis. Ms. Dominga Lora (Lora), is the sole corporate officer of the licensee and owner of 100 percent of its stock. According to her, she is generally always on the licensed premises, and usually is seated at a small table by the pool table. Notwithstanding the fact that the lighting within the premises is good, Lora averred that she had no knowledge of any drug transactions on the premises and, in fact, doubted that any did occur. Lora's testimony is not credible. The proof is clear and convincing that the drug transactions previously discussed did occur on the licensed premises, and that they occurred in an open manner visible to patrons and employees alike. If reasonably diligent, Lora had to observe that drug transactions were occurring on the licensed premises but failed to make any reasonable effort to prevent them. Under the circumstances, it is concluded that Lora knew such sales occurred or negligently overlooked them.
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 alcoholic beverage license number 23-02231, series 2-COP, issued to Quinto Patio Bar, Inc., d/b/a Quinto Patio Bar, for the premises located at 1552 West Flagler Street, Miami, Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of May, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1988. COPIES FURNISHED: Katherine A. Emrich, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Rene Valdes 1830 N.W. 7th Street Miami, Florida 33125 Daniel Bosanko, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
