Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: On October 24, 1985, Petitioner filed an initial application with Respondent to obtain an alcoholic beverage license. The alcoholic beverage license was to be used in the operation of a small restaurant which Petitioner owned, known as El Conquistador Restaurant, in Homestead, Florida. The Petitioner is the sole owner of El Conquistador Restaurant. The application listed the Respondent, Maria Andarcio as the sole proprietor and only person having a financial interest in the business known as El Conquistador Restaurant. During the processing of the application, Mr. Ross, the investigator assigned to Petitioner's case, noticed that the application appeared to have several discrepancies. In particular, Mr. Ross was concerned because the financial information submitted with the initial application listed Julio Andarcio, Respondent's estranged husband, as the sole depositor of the expense account but he was not listed as having any financial interest in the business. Secondly, Petitioner failed to provide sufficient information regarding her employment history. Lastly, a lease which was part of the initial application, identified a potential undisclosed interest, Jose Osario, as a co- leasee. On November 15, 1985, Mr. Ross, routinely mailed a "14 day letter" to Petitioner requesting additional information. In particular, the "14 day letter" directed the Petitioner to provide additional information within 14 days from the date of receipt of the letter. The additional information requested was as follows: List occupation for the past 5 years on personal questionaire. Julio Andarcio must be fingerprinted and submit personal questionaire." The Petitioner failed to provide the information requested in the 14 day letter. Thereafter, Respondent was unable to fully investigate the license application and denied the Petitioner's license on January 8, 1986. For some reason, the Petitioner did not receive the 14 day letter which Respondent sent by regular mail. Therefore, she did not respond within the requested time period. The Petitioner was born in Cuba and speaks very little English. The language barrier contributed to the apparent discrepancies in Petitioner's initial application. Mr. Ross opined that based on all of the information that he had received up to the time of the hearing, the Petitioner would have been granted a beverage license had she only responded to the "14 day letter."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered allowing the Petitioner 20 days from the date thereof in which to provide Respondent with the information requested in the initial "14 day letter," thereby making her application complete. The Respondent shall thereafter review and process the application in the standard and routine manner. DONE and ORDERED this 24th day of October, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON 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 October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1176 Rulings on Proposed Findings of Fact Submitted by the Petitioner (None Submitted) Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 3. Partially adopted in Finding of Fact. Matters not contained therein are rejected as unnecessary. Adopted in Finding of Fact 5. Rejected as a recitation of testimony and/or argument. Partially adopted in Finding of Fact. Matters no contained therein are rejected as subordinate. COPIES FURNISHED: Armando Gutierrez, Esquire 2153 Coral Way, Suite 400 Miami, Florida 33145 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1077 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Bell, Esq. General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301-1927 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301-1927
The Issue This case concerns an Administrative Complaint filed by the Petitioner against the Respondent. Count I to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its director, stockholder or corporate officer, namely: Carl Bilotti, related to the possession, sale and/or delivery of the controlled substance cocaine on July 15 and 18, 1981; August 20, 1981; and September 9 and 20, 1981. Count II to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee namely: "Anne," related to the possession of the controlled substance cocaine on August 22 and 28, 1981. Count III to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Anne," related to the possession, sale and/or delivery of the controlled substance cocaine on August 23, 1981, and September 4, 1981. Count IV to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Sandy," related to the possession, sale and/or delivery of the controlled substance methaqualone on July 19 and 25, 1981, and the possession, sale and/or delivery of the controlled substance cocaine on August 14, 22 and 23, 1981. Count V to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Eve," related to the possession, sale and/or delivery of the controlled substance diazepam on July 23, 1981. Count VI to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Gina," related to the possession, sale and/or delivery of the controlled substance diazepam on July 25, 1981, two (2) incidents. Count VII to the Administrative Complaint accuses the Respondent of violations of Sections893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Ivy " related to the possession, sale and/or delivery of the controlled substance cocaine on August 14, 1981. Count VIII to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Shayne," related to the possession, sale and/or delivery of the controlled substance cocaine on July 25, 1981. Count IX to the Administrative Complaint alleges that between July 15, 1981, and October 2, 1981, the Respondent, by actions of its agents, servants, employees, manager, corporate officer and stockholder, maintained a place, to wit: the licensed premises, at 2095 best Fourth Avenue, Hialeah, Florida, which place was used for keeping or selling of controlled substances, namely: cocaine, methaqualone and diazepam, in violation of Subsection 893.13(2)(a) 5; Florida Statutes, within the meaning of Subsection 561.29(1)(c), Florida Statutes. Count X to the Administrative Complaint alleges that between July 15, 1981, and October 2, 1981, the Respondent, through its agents, servants, employees, manager, corporate officer and stockholder, kept or maintained a public nuisance on the licensed premises, to wit: maintaining a building or place which is used for the illegal keeping, selling or delivering of controlled substances within the meaning of Chapter 893, Florida Statutes, in violation of Section 823.10, Florida Statutes, and Subsection 561.29(1)(c) , Florida Statutes. Count XI to the Administrative Complaint alleges that on or about July 25, 1981, an agent, servant or employee of the Respondent, one Gina, while engaged as a dancer, unlawfully offered to commit prostitution, in violation of Subsection 796.07(3)(a), Florida Statutes, causing a violation on the part of the Respondent of Subsection 561.29(1)(a), Florida .Statutes. Count XII to the Administrative Complaint alleges that on or about October 2, 1981, an agent, servant or employee of the Respondent, namely: Cathryne Edmondson, possessed a controlled substance, to wit: marijuana, on the licensed premises, in violation of Subsection 893.13(1)(a) Florida Statutes, causing a violation of Subsection 561.29 (1)(a) , Florida Statutes. Count XIII to the Administrative Complaint alleges that on or about December 2, 1981, a director, stockholder or corporate officer, namely: Carl Bilotti, corporate vice-president and 50 percent stockholder, pled guilty and was adjudicated guilty in the Circuit Court of the State of Florida, Eleventh Judicial Circuit, on five (5) counts of violation of Section 893.13, Florida Statutes, sale of controlled substances, namely: cocaine, a felony, and that the felony conviction impairs qualifications of the Respondent to obtain and continue holding an alcoholic beverage license under Subsection 561.15(3), Florida Statutes, and Subsection 56l.29(1)(b), Florida Statutes.
Findings Of Fact The Petitioner had served an Administrative Complaint on the Respondent, which Administrative Complaint contained the Counts as set forth in the Issues statement to this Recommended Order. Subsequent to that time, the Respondent, in the person of counsel, requested a formal Subsection 120.57 (1), Florida Statutes, hearing and the formal hearing was conducted on January 6, 1982. As indicated by correspondence from former counsel for the Respondent to counsel for the Petitioner dated December 15, 1901, Respondent's counsel withdrew from the case. This withdrawal of counsel postdated a Notice of Hearing setting forth January 6, 1982, as the date for hearing and a separate Order of November 24, 1981, which identified January 6, 1982, a the date for hearing. Notwithstanding the Notice and separate Order identifying January 6, 1982, as the hearing date, the Respondent, by and through its attorney or other authorized representative, did not attend the formal hearing. Although the Respondent was not in attendance, the hearing was conducted in view of the continuing request for hearing, which has never been withdrawn. The Petitioner is a governmental agency in the State of Florida, which has, among other duties, the licensure of the several alcoholic beverage license holders in the State of Florida, and the requirement to discipline those beverage license holders who have violated the terms and conditions of their licensure. The Respondent Carl and Mike, Inc., is the holder of an alcoholic beverage license issued by the Petitioner. The Respondent trades as the Raw Hide Bar at a licensed premises at 2095 West Fourth Avenue, Hialeah, Dade County, Florida. On July 15, 1981, at approximately 9:45 P.M., Beverage Officer L. J. Terminello, and a confidential informant, who was assisting Officer Terminello, entered the licensed premises in undercover capacities to continue an investigation which had begun on July 12, 1981. (The Beverage Officer and confidential informant had been in the licensed premises on that former date for purposes of conducting a narcotics investigation.) On this occasion, the investigative purpose was to purchase narcotics. Terminello and the informant took a seat at the bar and waited for the appearance of Carl N. Bilotti, the vice-president of the Respondent and 50 shareholder. It was the intention of Terminello to attempt to purchase narcotics from Bilotti. At 10:50 P.M. Bilotti had not arrived at the licensed premises and Terminello decided to leave; however, when he reached the front door, Bilotti was entering and Bilotti spoke to the confidential informant in the parking lot area of the licensed premises. The confidential informant, in the course of that conversation, asked Bilotti if, "we could get any coke," meaning Terminello and the confidential informant were interested in purchasing cocaine. Bilotti responded by stating, "Sure, no problem. Wait here a minute, I'll be right back." Bilotti then entered the licensed premises and returned a few minutes later and handed the confidential informant a piece of aluminum foil which was folded and the confidential informant handed this item to Terminello. Terminello opened the package and noted a quantity of white powder. Terminello asked Bilotti, "how much" and Bilotti stated, "anything close to $70.00." Terminello paid Bilotti $70.00 in United States currency and following a short conversation, departed the area of the licensed premises. The white powder in question was in fact cocaine. Terminello and the confidential informant returned to the licensed premises on July 18, 1981, at approximately 12:15 A.M. Terminello approached Carl Bilotti who was standing at the end of the bar area next to a cash register. Terminello asked Bilotti if he had any "stuff," referring to cocaine. Bilotti answered "sure" and indicated that the cost for the cocaine would be $70.00. Terminello agreed to the price, telling Bilotti that he would meet him in the mens room for purposes of the exchange of drugs and money. At approximately 12:20 A.M., while located in the mens rest room of the licensed premises, Terminello paid Bilotti $70.00 in United States currency and Bilotti gave Terminello a folded piece of white paper which Terminello could see contained white powder. Shortly thereafter, Terminello and the confidential informant exited the licensed premises. The white powder which had been purchased was analyzed and revealed the presence of cocaine. On July 19, 1981, at around 11:00 P.M., Officer Terminello returned to the licensed premises. While in the licensed premises he spoke with Sandra McQuire, a person that he had met on July 12, 1981. On July 12, 1981, McQuire had been employed as a cocktail waitress on the licensed premises and Terminello had been advised by the confidential informant that McQuire had delivered ten (10) methaqualone tablets to the confidential informant on that date. On that date, July 19, 1981, Terminello told employee McQuire that he wanted to purchase ten (10) more "ludes, meaning methaqualone. At around 11:20 P.M., while Terminello was sitting at the bar, McQuire walked by and handed him a napkin containing ten (10) white tablets. A few minutes later, Terminello handed McQuire $30.00 in U.S. currency in payment for the white tablets. Terminello then left the licensed premises at approximately 11:40 P.M. The ten (10) tablets were subsequently analyzed and found to be methaqualone. On July 23, 1981, at approximately 12:30 A.M., Officer Terminello and the confidential informant entered the licensed premises. Terminello and the confidential informant took a seat at the bar, where shortly afterwards a conversation ensued with an employee/dancer who identified herself as "Eve" and was later determined to be one Eve Mary Carroll. Carroll and the confidential informant had been acquainted prior to this time. During the course of the conversation, Terminello asked Carroll if she knew where he could get some "good ludes." This refers again to methaqualone. Carroll told him that she was "holding," meaning that she had some in her possession. She asked Terminello to pay her $4.00 for each tablet. She stated that the price was higher because they were "pure methaqualone tablets" and that they would "really do a job." Terminello told Carroll that he would purchase three (3) tablets and handed her $12.00 in U.S. currency. A few moments beyond this time, at around 12:45 A.M., Carroll handed Terminello three (3) tablets, each individually wrapped in aluminum foil, which tablets Terminello placed in his pocket. The suspect methaqualone tablets were later determined to be diazepam. On the same date, July 23, 1981, Terminello observed Carl Bilotti enter the licensed premises at around 1:00 A.M. In the course of a conversation that ensued, Bilotti told Terminello he could sell Terminello some cocaine, but that the transaction would have to occur later, in that Bilotti had to leave the licensed premises. Terminello waited until 2:30 A.M. and Bilotti never returned. On July 25, 1981, at approximately 12:00 A.M., Terminello and the confidential informant went back to the licensed premises. Over the next hour and a half, Terminello talked to Carl Bilotti and employee Sandra McQuire about purchasing narcotics; however, neither of those persons were able to deliver narcotics at that time. On that same date, Terminello and the confidential informant did speak with a dancer/employee in the licensed premises who was identified as "Gina" and this individual indicated that she had some "ludes" for sale, meaning methaqualone, that she would sell for $3.00 each. Terminello indicated that he would like to purchase five (5) tablets and they walked out the front door of the premises and Terminello gave her $15.00 in U.S. currency, in return for five (5) white tablets which were marked "Lemon 714." Those tablets were subsequently analyzed and found to be diazepam. At around 2:45 A.M. on July 25, 1981, while in the bar area, Terminello and the confidential informant spoke to an individual, a male, who was known as "Frenchie" later identified to be one Laurent E. Duval, who was in the company of a dancer employed in the licensed premises whose name was "Shayne" later identified to be Sharon K. Hicks. In the presence of Hicks, Terminello and Duval negotiated for the sale of a quantity of cocaine for the amount of $75.00. Duval also indicated that he had to be careful because he had a stolen car, was carrying a firearm and had recently been placed on probation by Circuit Court for narcotics and firearms charges. Duval told Terminello that the narcotics arrangement would have to be consummated in the parking lot of the licensed premises in view of the fact that too many people he did not know were in the bar. Terminello and the confidential informant exited the licensed premises at around 3:00 A.M. in the company of Duval and Hicks. Duval took a seat on the driver's side of an automobile in the parking lot and Hicks sat in the front passenger side seat. Duval handed Terminello a large plastic bag. containing a quantity of white powder which was suspect cocaine. Terminello started to hand Duval $75.00 in U.S. currency but Duval refused to take it, telling Terminello to hand the money to Hicks. Hicks had been observing this transaction and agreed to take the money and did accept the $75.00 in U.S. currency. The suspected cocaine was later revealed to be cocaine. Terminello next returned to the licensed premises on July 25, 1981, at around 9:30 P.M. At that time he was in the presence of the confidential informant. Terminello and the confidential informant took a seat at the bar and were approached by a dancer/employee who had earlier been identified as "Gina." There had been a prior telephone negotiation between the confidential informant and "Gina" for the purchase of five (5) "ludes," methaqualone, and in keeping with that arrangement, "Gina" handed Terminello a white napkin which contained five (5) white tablets. Terminello in turn gave "Gina" $15.00 in U.S. currency. Those tablets were subsequently analyzed and found to be diazepam. On the same evening, i.e., July 25, 1981, at around 9:45 P.M., the cocktail waitress, Sandra McQuire, approached Terminello and stated that she had five (5) methaqualone tablets that Terminello had asked for on the prior evening. She handed him a zip-lock plastic bag containing five (5) white tablets marked "Lemon 714." Shortly after this time, Terminello gave McQuire $15.00 in U.S. currency to pay for the tablets. Those tablets were subsequently analyzed and found to be methaqualone. At around 10:15 P.M. on July 25, 1981, the dancer/ employee "Gina" approached Terminello while he was seated at the bar and advised him that if he "got rid of" his "old lady" and returned about 4:00 A.M. to the premises that she, "Gina," would show him a good time by "fucking his brain out" for $50.00. Terminello acknowledged this offer. On August 3, 1981, at approximately 10:30 P.M., Terminello and the confidential informant returned to the licensed premises. At that time, Terminello entered into a conversation with Carl Bilotti on the subject of narcotics; however, Bilotti indicated that he was unable to procure cocaine at that time. Bilotti did state that he expected a delivery soon and that Terminello should wait a while. Nothing had transpired by 11:45 P.M. concerning the narcotics and Terminello and the confidential informant left the licensed premises. On August 14, 1981, at approximately 10:45 P.M., Terminello and the confidential informant went back to the licensed premises and upon entry took a seat at the bar where they were greeted by the cocktail waitress Sandra McQuire. Terminello asked McQuire if there were any "ludes" around, meaning methaqualone, and McQuire answered in the negative, but she did indicate that there was some "toot," meaning cocaine available for $70.00 a gram if Terminello was interested. Terminello advised McQuire that he was interested and removed $70.. 00 in U.S. currency from his wallet, wrapped it in a napkin and handed it to McQuire. She then stated that she would be back in a few moments. After several moments, McQuire signaled Terminello to walk over to the opposite side of the bar where she was fixing drinks. She then made a comment about the good quality of the "stuff." While Terminello was talking to McQuire, another employee, a dancer in the licensed premises identified as "Ivy" later shown to be one Julie Ann Schwartz, approached Terminello and handed him a plastic zip- lock bag containing white powder. She told Terminello "here is a present from Sandy." Terminello accepted the material. Schwartz then asked Terminello if she could "do a line," referring to the ingestion of cocaine. In view of the circumstances, Terminello did allow Schwartz to taste the cocaine. Schwartz did this by opening the packet in plain view at the bar area and placing her finger into the container and then tasting the substance that adhered to her finger. She then handed the plastic bag back to Terminello and said "you are going to enjoy this. That's good stuff." These matters transpired in the presence of McQuire. The white powder was subsequently analyzed and revealed to be cocaine. On August 22, 1981, at approximately 11:00 P.M., Terminello returned to the licensed premises. Upon entry to the licensed premises, Terminello was greeted by Carl Bilotti who appeared to be leaving the bar at that time. Bilotti told Terminello he could be back in about one hour if Terminello wanted to wait for purposes of purchasing cocaine. Terminello told him he would wait. Following his conversation with Bilotti, Terminello spoke with the cocktail waitress Sandra McQuire asking her if there was any "toot" around, meaning cocaine. McQuire indicated that there was and it would cost $70.00. Terminello followed McQuire into the hallway outside the ladies' room where he handed her a hundred dollar bill and she handed him a plastic wrapped package containing white powder. A few minutes later, Terminello was sitting at the bar when McQuire returned and laid $30.00 in U.S. currency before Terminello stating "thank you very much." This material in the plastic bag which had been provided to Terminello by McQuire was subsequently determined to be cocaine. Terminello was still in the bar area at around 12:30 A.M. on August 23, 1981, and entered into a conversation with the manager of the licensed premises identified a "Anne" later shown to be Anne R. Milotta, also known as Ann Bilotti, the sister of Carl Bilotti. Terminello told Milotta that he felt that her brother Carl Bilotti was inconsiderate in that Terminello had planned to purchase cocaine from Bilotti that night and Bilotti had not come back to the premises. Milotta agreed with Terminello and told him that he could sit in the manager's office with her to have a drink and to wait for her brother to return. Milotta and Terminello went to the manager's office. While in that office, ,Milotta answered the telephone, gave directions to employees, answered questions, was observed to have the keys to the office, and at times was seen tending bar. These managerial activities were further substantiated on a later date based upon Terminello's procurement of a copy of an application which Milotta had made with the City of Hialeah, Florida, for an identification card in which she had listed herself as the "owner-manager of the licensed premises." While in the office with Milotta, she told Terminello that it was too bad that her brother had not yet come back so that Terminello could purchase cocaine. Terminello, during this conversation, indicated to Milotta that he had purchased cocaine from Sandy McQuire, the cocktail waitress, and Milotta stated to Terminello "how 'bout turning me on to a line" and Terminello responded "OK." Terminello removed the cocaine he had received from McQuire and handed it to Milotta. She opened it and tapped out two one and one half inch long "lines" of cocaine on the desk in the office and handed the package back to Terminello. Terminello then watched Milotta ingest one of the lines through her nose using a plastic straw and he in turn simulated that activity. At around 1:15 A.M., on August 23, 1981, Terminello indicated to Milotta that, in view of the fact that Carl Bilotti was not going to appear, he would like to purchase another gram of cocaine to keep him supplied for the upcoming week. Milotta stated she would get McQuire and exited the office and called McQuire in, telling her that Terminello wanted to purchase another gram of cocaine. McQuire indicated that this would not be a problem and removed another packet similar to the first from a large plastic bag she kept on her person. This large bag appeared to have twenty (20) to thirty (30) similar type packets within it. Terminello removed a hundred dollar bill from his wallet and handed it to Milotta who in turn handed it to McQuire. McQuire then reached over Milotta and handed Terminello the packet. Shortly after this exchange, McQuire left the office and Milotta continued in general conversation both in the bar and office area until Terminello left the premises at approximately 1:50 A.M. The second package that McQuire gave to Terminello was subsequently determined to be cocaine. On August 28, 1981, at approximately 10:30 A.M., Terminello went back to the licensed premises to continue the investigation. Upon entering the licensed premises he spoke with Carl Bilotti asking if he had any "toot," meaning cocaine. Bilotti stated that he did and that it would be the same price as usual, $70.00. A few minutes later, Bilotti walked up to Terminello who was sitting at the bar and handed him a plastic zip-lock bag containing white powder and Terminello gave him $70.00 in U.S. currency in exchange. The substance which Terminello had purchased from Bilotti was subsequently determined to be cocaine. A few minutes after the exchange of cocaine and currency, Anne Milotta approached Terminello in the bar area and invited him into the manager's office for a drink. When they entered the office, Milotta told Terminello that she had seen the transaction involving the sale of cocaine between Terminello and her brother and wanted to make sure that Terminello was satisfied with the "product." The conversation continued while Milotta intended her managerial duties of making schedules, and answering the telephone. At approximately 11:00 P.M., Milotta asked Terminello if she could "do a line" of his cocaine, meaning use the material. She indicated that she knew "this coke was as good as all the coke that Carl gets." Terminello complied with her request by handing her the plastic zip-lock bag that he had purchased from Carl Bilotti. She again placed two (2) "lines" of the cocaine on the desk and on this occasion used a twenty dollar bill which had been rolled up as a tool to ingest the cocaine in her nose. Terminello simulated the use of cocaine in her presence. Terminello then left the office and exited the licensed premises. On September 4, 1981, at approximately 9:30 P.M., Terminello went back to the licensed premises. When he entered the premises he spoke with Anne Milotta asking her if her brother had "any shit to sell," referring to cocaine. Milotta invited Terminello into her office indicating that her brother did not have cocaine for sale but that she did. Terminello told her that he wanted one (1) gram. She left the office and returned a few minutes later, at around 9:50 P.M., handing Terminello a piece of plastic wrapping containing white powder. Terminello handed her 580.00 in U.S. currency and she returned $5.00, stating that her price was $75.00. Subsequent analysis of the material which he had received from Milotta revealed the presence of cocaine. While in the office area, Milotta continued to perform managerial duties. As Terminello was preparing to leave the licensed premises on this date, Milotta approached him and gave him an additional $5.00 in U.S. currency stating that she had made a mistake and that a gram should only be $70.00 and that she did not want Terminello to think that she was "ripping him off." This discussion of money referred to the purchase of cocaine. On September 9, 1981, at around 10:10 P.M., Terminello went back to the licensed premises. He took a seat at the bar and waited for the appearance of Carl Bilotti. Bilotti entered the licensed premises at around 10:25 P.M. and Terminello asked him if he was "holding any shit," referring to cocaine. Bilotti stated that he was and that it was the usual price of $70.00. Bilotti and Terminello then went to the manager's office. Bilotti left Terminello in that office, shortly thereafter and following this sequence, Terminello gave Bilotti $70.00 in U.S. currency while in the office in exchange for a white piece of paper folded in four parts which contained white, powder. The analysis of this white powder material revealed cocaine. Terminello and Bilotti stayed in the office for a few minutes discussing general topics and the possibility of a large narcotics purchase in the future. Bilotti told Terminello that he would be better off buying a quarter ounce of cocaine for $425.00 rather than one gram at a time for $70.00. Terminello then left the licensed premises at approximately 10:45 P.M. On September 20, 1901, at approximately 12:15 A.M., Terminello returned to the licensed premises. He undertook a conversation with Carl Bilotti while standing near the outside of the front door. After a short conversation, Bilotti indicated that he had cocaine for sale. A few minutes later while inside the licensed premises, Bilotti waved Terminello into the manager's office where he removed a quantity of white powder from a large plastic bag and placed a small quantity of white powder into a piece of paper on the desk. He then folded the piece of paper and handed it to Terminello who handed Bilotti 570.00 in U.S. currency. This white powder was subsequently determined to be cocaine. At approximately 1:00 A.M., Terminello left the licensed premises. On September 26, 1981, at approximately 12:20 A.M., Terminello, while in the licensed premises, entered into a discussion with Carl Bilotti about a narcotics transaction involving the purchase of cocaine. Bilotti indicated that two (2) ounces of cocaine could be purchased for $1,700.00 an ounce and he stated that the safest place for the transaction to occur would be in the office at the licensed premises. On September 29, 1981, at around 11:15 P.M., Terminello and Carl Bilotti, while in the office at the licensed premises, confirmed a future purchase of two (2) ounces of cocaine. Bilotti explained to Terminello the packaging and adulterating procedures to be used in connection with selling the cocaine. On October 2, 1981, at approximately 12:45 A.M., in the office of the licensed premises, Anne Milotta told Terminello that she was aware of the pending large transaction for the purchase of cocaine between Terminello and Carl Bilotti and that her understanding was that the purchase was to occur later that evening. She further stated that due to her brother's unreliability she would also guarantee that two (2) ounces of cocaine would be in the office by 7:00 P.M. on October 2, 1981. On October 2, 1981, a search was made of the licensed premises in connection with a warrant issued by the Dade County Circuit Court. The search warrant was read to Dorothy Bilotti, a principal in the beverage license. During the course of the search, Cathryne Edmondson, one of the dancer/employees was found in possession of marijuana. On December 2, 1981, Carl Bilotti entered a plea of guilty to five (5) counts of sale of cocaine and five (5) counts of possession of cocaine. He was subsequently adjudicated guilty of the sale of cocaine and adjudication was withheld on the counts of possession of cocaine. These matters were in connection with a court case in the Circuit Court, Dade County, Florida.
Findings Of Fact Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco is the state agency charged with regulating the alcohol beverage and tobacco laws in Florida. Respondent, Rueben McCall, Jr., d/b/a McCall's Champagne Lounge, is the holder of alcoholic beverage license number 62-00231, series 2-COP, for a licensed premises known as McCall's Champagne Lounge which is located at 618 22nd Street South, St. Petersburg, Pinellas County, Florida. On or about February 11, 1992, Officer T. Brockman of the St. Petersburg Police Department (SPPD) met with Respondent as licensee to discuss illegal activities which were ongoing in and around his licensed premises. Officer Brockman notified Respondent that controlled substances were being sold in and about the licensed premises and that underaged persons were being permitted to consume alcoholic beverages. Respondent was also notified of other illegal activities including weapons and firearms violations which were occurring on Friday and Saturday nights. On or about July 26, 1992, the Division's Special Agent, Cummings and other undercover law enforcement agents went to Respondent's premises as part of an ongoing narcotics investigation. While inside the premises, Cummings met a patron known as "Andy Griffin" regarding the purchase of marijuana. As a result of that meeting, Special Agent Cummings handed Andy Griffin $10.00 in exchange for a small plastic bag containing marijuana. The substance purchased was laboratory analyzed and found to be marijuana. At the time, two employees were located a few feet away from the site where the marijuana was delivered. At the time, several patrons were also openly consuming and selling controlled substances in the presence of Respondent and his employees. On or about July 31, 1992, Cummings again reentered the licensed premises with other undercover law enforcement agents in furtherance of their investigation. While inside the premises, Special Agent Cummings met with an unknown patron regarding the purchase of "crack" cocaine. Subsequently Special Agent Cummings handed the unknown patron $10.00 in exchange for a small quantity of a substance which was analyzed and found to be cocaine. This transaction took place in plain view at the bar in the presence of Respondent and several employees. At the time, several patrons inside the premises were openly smoking marijuana in the presence of Respondent and his employees. On August 1, 5, 7, 8, 11, 12 and 15, Special Agent Cummings and other law enforcement agents reentered the licensed premises as part of their ongoing narcotics investigation. While inside the premises, on each ocassion except August 8, Special Agent Cummings purchased narcotics for $10.00. On each occasion the substance purchased by Special Agent Cummings was laboratory analyzed and found to be marijuana. During the August 8, 1992 visit by Special Agent Cummings and the other law enforcement agents, several patrons were observed openly consuming marijuana in the presence of Respondent and several employees. At no time did Respondent or his employees make efforts to prevent that activity from occurring inside the licensed premises. On each occasion while in the premises, Special Agent Cummings observed several patrons openly consuming and selling controlled substances in the presence of employees. At the outset of the narcotics investigation, Officer Tim Brockman met with Respondent and advised him that he was a community police officer who was on call and would be walking the "beat" in and around the licensed premises. Officer Brockman made it known to Respondent that he was there to improve the quality of life and that he would be in contact with community leaders to try to get a handle on the extensive criminal activity which appeared to be ongoing in and around the licensed premises. As part of their efforts, Officer Brockman tried to develop a crime watch as the community residents felt threatened by the extensive criminal activity ongoing in and around the licensed premises. Officer Brockman advised Respondent that their primary goal would be to try to rid the area of drug sales. Respondent was specifically advised of the extensive drug activities that were ongoing both inside and outside of the licensed premises. Respondent's cooperation and assistance was requested by Officer Brockman and be agreed to assist. Officer Brockman made it known to Respondent that loitering was a problem outside the building and that alcoholic sales were being made in the building to minors. Finally, Officer Brockman told Respondent that he had observed patrons purchasing alcoholic beverages in the bar and who would later bring the open containers outside into the parking areas in and around the building in apparent violations of the local ordinances. Officer Brockman analyzed the phone calls which had been logged through the St. Petersburg Police Departments switchboard from the lounge and for law enforcement assistance in that area. The number of calls to Respondent's lounge greatly exceed the number of calls for law enforcement assistance in other areas of the City. Josephine McCall, Respondent's wife, denies that she ever saw drugs in the licensed premises. Ms. McCall maintains that Respondent would "come home sick as he could not stand the smell of marijuana." Thomas E. Hines, is a patron who occasionally frequents the bar during the early evening hours. During the times that he has frequented the club, he has not witnessed ellicit drugs being sold in the area nor would he recognize "reefer" if he saw it. Kathy Burgess has been a barmaid at Respondent's lounge in excess of thirteen years. Ms. Burgess contends that Respondent did not allow drug sales to occur and that if such sales were made, she told employees to "get them out of the premises." Bonny Bostick serves as a janitor at Respondent's lounge and works on the admissions door on Friday and Saturday nights. Bostick recalls having to get Respondent to curtail drug activities on four or five occasions. 0/ To the extent that the testimony of Respondent and witnesses J. McCall, T. Hines, K. Burgess and B. Bostick is in conflict with that of Officers Cummings and Brockman, their testimony is not credible. The testimony of Officers Cummings and Brockman is more credible and is more worthy of belief as they had no interest in the outcome of the proceedings. At all times throughout the investigation, Respondent was in the licensed premises while the illegal activities referred to herein were taking place. Respondent's employees either ignored or overlooked illegal activities as it was occurring inside the licensed premises.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order prevailing that Respondent, Rueben McCall, Jr., d/b/a McCall Champagne Lounge, license number 62-00231, series 2-COP be revoked. It is further recommended that this location be deemed ineligible for having an alcoholic beverage license issued for the maximum period allowable under the alcoholic beverage law. DONE and ENTERED this 4th day of November, 1992 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 4th day of November, 1992.
The Issue The issue presented concerns the entitlement of the named Petitioners to he granted a new Series 2-COP beverage license from the Respondent, in the face of a disapproval letter entered by the Director of the State of Florida, Division of Alcoholic Beverage and Tobacco.
Findings Of Fact Bruce F. Eggett and Timothy R. Miller, the named Petitioners in this cause, have made application for the issuance of a new Series 2-COP beverage license. This application has been made with the Respondent, State of Florida, Division of Alcoholic Beverages and Tobacco and in response to this request the Director of the Division of Alcoholic Beverages and Tobacco wrote the Petitioners on July 10, 1980, and in the course of that correspondence indicated his intent to deny the license application. The stated ground for denial was that "one of the applicants convicted of felonies within past fifteen years." The stated authority for the denial was Section 561.15, Florida Statutes. 1/ The Petitioners did not agree with the decision of the Director and orally requested an administrative hearing in this cause. This request was made with Captain Jack Wallace, Beverage Officer and District Supervisor for the Orlando, Florida, District. After receiving the oral request, this matter was made known to the legal staff of the Respondent and one of the staff attorneys, acting at the behest of the Director of the Division of Alcoholic Beverages and Tobacco, asked the Division of Administrative Hearings to conduct the formal hearing pursuant to Section 120.57(1), Florida Statutes. The hearing was conducted on September 8, 1980, and although the Petitioners had been duly noticed of the hearing, the Petitioners did not attend nor offer anything in behalf of their request for license. The Respondent presented copies of the license application request of both Bruce Francis Eggett and Timothy Robert Miller. The application form mentioned here is a personal questionnaire, individually, completed by the Petitioners. (Copies of those personal questionnaires pertaining to Eggett and Miller may be found as the Respondent's Exhibits No.1 and 2 admitted into evidence respectively.) Question 6 of the questionnaire asks the following: Have you ever been: Arrested for violation of any other law of this state, any other state or the United States? (excluding minor traffic) If answer to any of these questions is yes, list aliases and give full disclosure of charges, dates, arresting agencies and places of arrest." To this question, the Petitioner Eggett marked "yes" and stated (1) 1971 breaking and entering and (2) 1977, delivery of Methaquaalude. In response to the same question, Petitioner Miller answered that he had been arrested in 1968 for public intoxication and blocking traffic in Canton, Ohio. No further proof was offered by the Respondent on the question of these arrests and the disposition made of the matters.
Recommendation It is RECOMMENDED that the Director of the State of Florida, Division of Alcoholic beverage and Tobacco, deny the Petitioners, Bruce F. Eggett's and Timothy P. Miller's request to be granted a new Series 2-COP beverage license. DONE AND ENTERED this 24th day of September, 1980, in Tallahassee, Florida. CHARLES C. ADAMS 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 September, 1980. Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1980.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent's license number 42-55 be revoked. Respectfully submitted and entered this 27th day of February, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. C.A. Nuzum Director Division of Beverage 210 Johns Building Tallahassee, Florida Mr. Charles F. Tunnicliff Department of Business Regulation 725 S. Bronough Street Room 210, Johns Building Tallahassee, Florida 32304 Mr. White Route 2, Box 13B Marianna, Florida 32446
Findings Of Fact Petitioner originally held alcoholic beverage license no. 26-532, Series 4-COP, as an individual. He transferred this license to M & S, Inc., a Florida corporation, about one year ago. Petitioner is a 50 percent shareholder in this corporation. Jimmy G. Maddox holds the other 50 percent stock interest. Petitioner and Maddox are currently engaged in civil litigation involving the corporate licensee. Respondent referred to this civil suit in its notice disapproving the transfer application, citing the pending litigation as a basis for disapproval. Petitioner has not purchased the license from the corporation or entered into any agreement in contemplation of license transfer. Rather, he believes he is entitled to the return of the license because he received no consideration for the prior transfer from either the corporation or Maddox. Alternatively, Petitioner asks that the prior transfer to the corporation be set aside due to this lack of consideration.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent enter a Final Order denying Petitioner's request for transfer of alcoholic beverage license no. 26-532, Series 4-COP. DONE and ENTERED this 6th day of April, 1982 in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1982. COPIES FURNISHED: James A. Fischette, Esquire Suite 1916 Gulf Life Tower Jacksonville, Florida 32207 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Herbert T. Sussman, Esquire 3030 Independent Life Building Jacksonville, Florida 32202 Mr. Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Respondent currently holds alcoholic beverage license number 69-007441, series 2COP, for the licensed premises known as Javis Pub located at 600 North Highway 17-92, Longwood, Seminole County, Florida. At all material times, Jose Javier Zudaire (Javi) was the sole owner and officer of Respondent. At all material times, a person known only by the name of John was employed by Respondent as a bartender. On April 7, 1988, Sandra D. Owens, who was employed by the Seminole County Narcotic Unit, entered Javis Pub in an undercover capacity with a confidential informant who had advised the law enforcement authorities that illicit drugs were being sold in the bar. At the time, the informant was negotiating with Javi for the purchase of the bar. The informant introduced Ms. Owens to Javi. In the ensuing conversation, Javi told Ms. Owens that he had not gotten home until 7:00 a.m. that day because he had been out taking cocaine the prior evening. Ms. Owens complained that cocaine was hard to come by. Javi began to discuss the quality of the cocaine that he could obtain and the prices for which he could obtain it. Javi then offered to get Ms. Owens a free sample of his cocaine, but she stated that she would rather purchase it. They then agreed that she would return the next evening and purchase 1/8 ounce for $200 from John, who was the bartender. When Ms. Owens returned the next evening, John was not there. Javi and Ms. Owens began conversing. After a short time, Javi picked up a pack of cigarettes that Ms. Owens had laid down on the bar, emptied it of most of the cigarettes, took the pack into a back room behind the bar, and returned with the pack, into which he had placed 1/8 ounce of cocaine. Javi then placed the pack in front of Ms. Owens, who placed two one-hundred dollar bills under a nearby ashtray. Javi completed the transaction by taking the two bills. Before Ms. Owens left the bar, Javi assured her that she would like the cocaine. She left the bar, but returned later in the evening to thank Javi and tell him that she would be leaving town for a week or so. During the next couple of weeks, Ms. Owens spoke by telephone with Javi and John about seven times. Although she in fact had remained in town, she told them that she was visiting friends in Houston and gave them a telephone number in Houston to call her. Through an arrangement with the Houston police department, they took the calls on a private line and forwarded all messages to Ms. Owens. On the evening of April 21, 1988, Ms. Owens returned to the bar. She met with John, who told her that he would sell her an ounce of cocaine if she returned to the bar at midnight. Ms. Owens returned to the bar at 11:55 p.m. on April 21. John was waiting outside for her. Together, they entered the bar where they were joined by Javi. Javi asked John if he was going to take care of Ms. Owens. Javi then left the bar and John went to the back room behind the bar and returned with a white envelope containing cocaine. He removed the envelope from a back pocket and Ms. Owens asked him if he wanted to complete the transaction out in the open. He told her not to worry about "my people." While seated at the bar in good lighting with other persons present, Ms. Owens counted out, onto the surface of the bar, the $1300 cash that they had agreed upon and John gave her the cocaine. Shortly after purchasing the cocaine, Javi returned to the bar, asked Ms. Owens if John had taken care of her, and assured her that she would like the cocaine. Petitioner's policy calls for the revocation of an alcoholic beverage license whenever illegal drug sales repeatedly take place in the licensed premises, the premises are declared a public nuisance, and the premises are a place of dealing, storing, selling, or using illegal drugs; the licensee sells a controlled substance one or more times; or an employee makes three or more sales of a controlled substance on the licensed premises and in an open manner so as to indicate culpable negligence on the part of the licensee in the management of the premises.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Section 561.29(1)(a) and (c) Florida Statutes, and revoking the subject alcoholic beverages license. DONE and RECOMMENDED this 17th day of October, 1988, in Tallahassee, Florida ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1987. APPENDIX TO RECOMMENDED ORDER Treatment Accorded Petitioner's Proposed Findings 1-2. Adopted. 3. First and last sentences adopted. Remainder rejected as unsupported by the evidence. 4-6 . Adopted. 7. Rejected as legal argument. 8-12. Adopted. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Richard A. Colgrove, Esquire Firm of Thomas C. Greene, Esquire 212 North Park Avenue Post Office Box 695 Sanford, Florida 32772-0693 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1007 Joseph A. Sole, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
Findings Of Fact Victor Ingargiola is the sole shareholder, director and officer of Petitioner, I & H Enterprises, Inc., d/b/a Basin Street East (Petitioner), a Florida corporation. The State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, is the Respondent. Both Mr. Victor Ingargiola and his wife, Mrs. Barbara Ingargiola, entered the Division's double random selection drawing for eligibility to apply for a new quota alcoholic beverage license. Mr. Ingargiola was selected in the drawing, and Mrs. Ingargiola was not. After receiving notice of his selection in the drawing, Mr. Ingargiola formed the Petitioner and applied for licensure on or about November 1, 1984. In his application, Mr. Ingargiola did not identify his wife as a person having an interest in Petitioner or its business, either directly or indirectly. The application also represented that Petitioner had a right to occupancy of the premises to be licensed at 4513 Causeway Boulevard, Tampa, Florida. Petitioner's application carries with it an application fee of $6,750. Mr. Ingargiola obtained a portion of the funds necessary to pay the application fee from funds held jointly by him and his wife and by loans to him and his wife secured by property jointly held by him and his wife. Virtually all money and property of the Ingargiolas is held in their joint names. Both Mr. and Mrs. Ingargiola conferred with the Division's Investigator Miller concerning the application. Miller initially requested that Mrs. Ingargiola be finger printed as a person having an interest in the license to be issued. Mrs. Ingargiola understood that she was not permitted to have an interest since she herself had entered the double random selection drawing. She therefore declined to be fingerprinted or to be made to appear on the application as a party having an interest in the license to be issued. Investigator Miller also discussed with the Ingargiolas the question of Mrs. Ingargiola's involvement and the financing of Petitioner. Investigator Miller led the Ingargiolas to believe that the only possible legal financing arrangement would be for Mrs. Ingargiola to give the funds to her husband outright. He led them to believe that this could be done by affidavit, and Mrs. Ingargiola signed and filed an affidavit which Investigator Miller approved as to form. The affidavit listed the financing in question and stated: "I swear that the following funds obtained are to be used by Victor A. Ingargiola and I will have no interest or control over these funds." Barbara Ingargiola also testified at final hearing that she claims no interest whatsoever in Petitioner, any license to be issued to it, or the funds she gave outright to her husband to finance Petitioner. Essentially, Mrs. Ingargiola gave her half of the joint funds and proceeds of joint loans used by Victor Ingargiola to finance Petitioner's application fee. If necessary, she was prepared to do the same with the proceeds from the sale of joint real property or loans secured by the Ingargiolas' joint real property. However, no mention was made or consideration given to Mrs. Ingargiola's liability for her husband's share of the joint borrowing in addition to hers. Mrs. Ingargiola did have an interest in the successful operation of Petitioner so as to enable her husband to pay at least half, if not all, of the joint borrowing used in part to finance Petitioner. On or about October 12, 1984, Mr. Ingargiola obtained a written lease to the premises to be licensed. However, the lease does not contain a commencement date. At the time the application was filed, the premises were occupied by another tenant, and, as of December 20, 1984, this tenant had a legal right to occupy the premises and had not been notified of the pending liquor license application or the lease. In addition, the purported lease contains a provision requiring Petitioner to secure its duties and obligations under the lease by depositing with the landlord the sum of $60,000 in cash or irrevocable letter of credit. There was no evidence that Petitioner had complied with or could comply with this requirement of the lease. Although Mr. Ingargiola testified to his understanding of his right to occupancy of the premises under the lease upon granting of Petitioner's application and issuance of the license, there was no testimony from the landlord on the ambiguities surrounding the lease and the rights of the tenant in possession. As a result, the evidence as a whole was insufficient to prove Petitioner's right to occupancy of the premises to be licensed.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, deny the application of Petitioner, I & H Enterprises, Inc., d/b/a Basin Street East, for a quota alcoholic beverage license RECOMMENDED this 17th day of March, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1986. COPIES FURNISHED: Joseph L. Diaz, Esquire 2522 W. Kennedy Blvd. Tampa, FL 33609 Thomas A. Klein, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301-1927 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301 Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301
Findings Of Fact At all times pertinent, Respondent, Wilbert Barrington, d/b/a Barrington Inn (Respondent), has held license number 43- 19, Series 2-COP, for the sale of beer and wine at the Barrington Inn on State Road 59, north of Lloyd, Jefferson County, Florida. Respondent's license does not authorize him to sell gin. December 2, 1984, Respondent sold two 200 ml. bottles of Seagram's Gin at his licensed premises, one to a patron and one to an undercover agent employed by Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent has had three prior similar violations. Respondent denied the allegations and testified at final hearing that the Division's undercover agent was not at his licensed premises on December 2, 1984, that he did not sell any gin on December 2, 1984, and that he does not sell gin or vodka at his licensed premises.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended, in view of Respondent's prior violations and testimony at final hearing, that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking alcoholic beverage license number 43-19, Series 2-COP, held by Respondent, Wilbert Barrington, d/b/a Barrington Inn. RECOMMENDED this 16th day of October, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings, The Oakland Building 309 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1985. COPIES FURNISHED: Thomas A. Klein Staff Attorney Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301 Ike Anderson, Esq. P. O. Box 56 Monticello, FL 32344 Richard B. Burroughs, Jr. Secretary The Johns Building 725 S. Bronough Street Tallahassee, FL 32301 Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 S. Bronorugh Street Tallahassee, FL 32301
The Issue The issue is whether the facts alleged in the Notice to Show Cause in this case are true and whether those facts, to the extent that they are true, warrant revocation, suspension or other discipline of the license of Respondent. The Notice to Show Cause explicitly alleges several drug-related and one disorderly conduct violations on the licensed premises and implicitly alleges the Respondent's culpable responsibility for the violations under Section 561.29(1)(a), Florida Statues. The Notice To Show Cause also alleges that Respondent maintained the licensed premises as a place where controlled substances were illegally kept, sold, or used in violation of Sections 823.01 and 561.29(1)(e), Florida Statutes and Sections 893.13(2)(c) and 561.29(1)(a), Florida Statutes.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: At all times relevant hereto, the Respondent, Rene Tamer, held alcoholic beverage license number 23-07334, series 2-COP, for the licensed premises known as El Emperador, located at 36-38 Ocean Drive, Miami Beach, Florida. On January 27, 1986, Beverage Investigator Carlos Baixauli went to the licensed premises of El Emperador. While there, he saw a black latin female walk over to a dog that was lying on the floor. Baixauli heard the woman ask the dog in spanish if he (the dog) wanted to have sex. The woman then fondled the dog's penis for approximately 20 minutes. Night manager Luis Tamer was present when this incident occurred. On February 5, 1986, Investigator Baixauli, while inside of the licensed premises of El Emperador, arranged to purchase one gram of cocaine from a white latin male, known as El Indio (the Indian). El Indio told Baixauli that he needed the $60.00 "up front." When Baixauli expressed concern as to whether El Indio would return with the cocaine or his money, El Indio stated that he worked at El Emperador, was always around and could be trusted. Baixauli gave El Indio $60.00. El Indio left the premises, returned and handed Baixauli a small plastic package of cocaine wrapped in a white napkin. Baixauli opened the napkin and conspicuously inspected the package of cocaine by holding it up to approximately eye-level and tapping it with his fingers. Luis Tamer was present and behind the bar at the time. On February 10, 1986, Investigator Baixauli visited the licensed premises of El Emperador. While Baixauli was at the bar talking to on-duty manager Luis Tamer, El Indio went over and asked Baixauli if he wanted to buy some "yeyo," a Spanish term for cocaine. Baixauli agreed to purchase one gram of cocaine and gave El Indio $60.00. El Indio subsequently returned and again interrupted a conversation between Baixauli and Luis Tamer. El Indio handed Baixauli a matchbook, from which Baixauli removed a plastic package containing cocaine. Baixauli held up the package and showed to his partner Garcia. El Indio told Baixauli that he could be found at El Emperador between 2:00 and 4:00 A.M. performing clean-up duties and at 11:00 A.M. stocking the beer coolers or running errands for Rene Tamer. On February 12, 1986, Investigator Baixauli visited the licensed premises of El Emperador. While there, Rene Tamer asked Baixauli: "Are you still working for the Division of Alcoholic Beverages?", to which Baixauli feigned ignorance and replied that he did not know what Rene Tamer was talking about. Rene Tamer, Luis Tamer and other employees then briefly retired to the kitchen where Baixauli observed them "looking out" at him as if to get a better view. El Indio arrived at El Emperador at approximately 2:00 P.M. and began stacking beers and cleaning the premises. El Indio asked Baixauli if he wanted any cocaine and Baixauli handed him $60.00 in front of Luis Tamer. El Indio later returned and handed Baixauli a matchbook. Baixauli removed a plastic package containing cocaine from the matchbook, held it up while inspecting it and showed it to his partner, Garcia. Luis Tamer was at the front counter during the transaction. On February 13, 1986, Investigator Baixauli visited the licensed premises of El Emperador. El Indio asked Baixauli if he could bring him anything. Baixauli gave El Indio $60.00 for one gram of cocaine. At approximately 4:00 P.M. El Indio returned and handed Baixauli a plastic package containing cocaine, which Baixauli held up and tapped with his finger. Luis Tamer, the manager, was standing behind the bar and observed Baixauli's inspection of the cocaine. Luis Tamer smiled and said nothing. On February 17, 1986, Investigator Baixauli visited the licensed premises of Emperador. Baixauli went to the bar and struck up a conversation with Luis Tamer. El Indio went over and asked Baixauli if he needed anything, to which Baixauli replied "yes" and gave El Indio $60.00. El Indio returned with some cocaine while Baixauli was still speaking with Luis Tamer. Baixauli removed the plastic package of cocaine from the matchbook and held it up to inspect it. Once again, Luis Tamer just smiled. On February 24, 1986, Investigator Baixauli returned to El Emperador. Baixauli went over to off-duty employee Camaquay and struck up a conversation. El Indio approached them and asked Baixauli if he wanted any cocaine. Baixauli responded that he did and gave El Indio $60.00, at which time Camaquay started laughing and said that he had been told that Baixauli was a "Narc" and must be setting up El Indio. El Indio later returned to where Baixauli was seated at the bar talking to Camaquay and manager, Luis Tamer, and handed Baixauli a matchbook. Baixauli removed a plastic package of cocaine from the matchbook and held it up for inspection, tapping it with his finger. Neither Camaquay nor Luis Tamer said anything to Baixauli. Later on in the evening of February 24, 1986, Baixauli asked Camaquay if El Indio was coming back to El Emperador. Camaquay told Baixauli not to worry, because he, Camaquay, could get cocaine from the same source as El Indio. Baixauli, after obtaining change from Luis Tamer, gave Camaquay $30.00 for a half-gram of cocaine. Camaquay later returned and tossed a plastic package of cocaine onto the bar in front of Baixauli. Baixauli held up the bag at eye level and tapped it with his fingers in view of manager Luis Tamer and other patrons. On February 26, 1986, Investigator Baixauli went to El Emperador and asked Luis Tamer if Camaquay was in. Camaquay went over to Baixauli, showed him a plastic bag containing marijuana and asked if he wanted to smoke. Baixauli said no. Camaquay then went into the restroom from which Baixauli then smelled a strong odor of marijuana. Manager Luis Tamer asked Baixauli where Camaquay was and Baixauli told him that Camaquay was in the bathroom smoking marijuana. Later at El Emperador on February 26, 1986, El Indio approached Baixauli and asked if he needed anything. Baixauli gave El Indio $60.00 for some cocaine. El Indio later returned and gave Baixauli a matchbook. Baixauli removed a plastic package of cocaine from the matchbook, held it up and tapped it with his fingers. Luis Tamer was standing behind the bar looking at Baixauli and Camaquay was standing by the pool table looking at Baixauli. After Baixauli received his cocaine from El Indio on February 26, 1986, Camaquay approached several patrons playing pool and asked if they wanted to buy drugs. Camaquay showed them a plastic package of marijuana which he took from his pocket, in full view of Baixauli, and Luis Tamer the manager, who were all looking in his direction. After Camaquay's attempt to sell marijuana to the pool playing patrons, he approached Baixauli and asked if he could bring him anything. When Baixauli agreed, Camaquay left the premises and shortly returned, tossing a plastic package of cocaine onto the bar in front of Baixauli and Luis Tamer, who was standing behind the bar in front of Baixauli. Baixauli held up the plastic bag and tapped it with his fingers. On March 4, 1986, Investigator Baixauli returned to El Emperador. Luis Tamer yelled to El Indio that his "friends" were there. El Indio approached Baixauli and Baixauli gave him $60.00. While El Indio was out obtaining Baixauli's order, on-duty employee Camaquay went over to Baixauli and asked if he wanted to buy some cocaine. Baixauli said "yes" and handed Camaquay $30.00 over the bar. El Indio returned shortly with a plastic package containing cocaine. Baixauli held up the package and showed it to his partner, Garcia. Camaquay later returned and handed Baixauli a plastic package of cocaine. Baixauli raised the bag and tapped it with his fingers. On March 11, 1986, Investigator Baixauli visited El Emperador. Luis Tamer was present and tending the bar. El Indio approached Baixauli and asked him if he needed any cocaine. Baixauli said "yes" and gave El Indio $30.00 for a half gram of cocaine. El Indio later returned and handed Baixauli a matchbook containing a plastic package of cocaine. Baixauli performed his usual post-sale inspection of the cocaine by holding the package up to approximately eye-level and tapping it with his fingers.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED that a Final Order be issued revoking the alcoholic beverage license number 23-07334, series 2-COP, held by Respondent, Rene Tamer. DONE and ORDERED this 22nd day of August, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1986. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Professional Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927 Mr. Rene Tamer El Emperador 36-38 Ocean Drive Miami Beach, Florida 33149 Howard M. Rasmussen, Director Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, Florida 32301 James Kearney Secretary The Johns Building 725 S. Bronough Street Tallahassee, Florida 32301 Thomas A. Bell, Esquire General Counsel 725 S. Bronough Street Tallahassee, Florida 32301
