Findings Of Fact At all times pertinent to the allegations contained herein, Respondent P R of Brevard County, Inc., doing business as Shark Lounge, was the holder of Florida Alcoholic Beverage License Series 4-COP No. 15-00177 for the Shark Lounge, located at 411 North Orange Avenue, Cocoa Beach, Florida. On March 15, 1984, Terry A. Altman, a special agent for the U.S. Treasury Bureau of Alcohol, Tobacco and Firearms (BATF), in an undercover capacity and in the company of Investigator Gloria Smith of the Division of Alcoholic Beverages and Tobacco (DABT), also in an undercover capacity, entered the Shark Lounge at approximately 2:00 a.m. They had been there before on March 12, 1984, when an employee of the Respondent, the bouncer Harry Haynes, had offered to sell marijuana to Smith. On this March 15th visit, they spoke with an employee by the name of Sherry, and Smith asked if Haynes was there. When Haynes showed up, Smith asked him if he had been able to obtain any of the marijuana he had mentioned previously, whereupon Haynes told her that cocaine was easier to get than marijuana. However, Haynes made some telephone calls and shortly thereafter requested that Altman come outside with him. Altman complied, at which time Haynes requested $30. Altman paid the $30 to Haynes and then went back inside the bar. A little later, Haynes came in and motioned Altman and Smith to come outside, where Haynes handed Altman a plastic envelope containing a green leafy substance. Upon subsequent laboratory analysis, this substance was determined to be marijuana. On March 22, 1984, Altman and Smith went back to Respondent's lounge, where Smith saw Haynes behind the bar. At this time, she asked Haynes if she could get cocaine, and Haynes indicated that he had already ordered some for her. At approximately 2:00 a.m., Haynes came in and told Altman to go outside with him. Haynes quoted a price of $50 a half gram for the substance. Altman paid Haynes the $50 and went back inside, while Haynes went someplace else. A few minutes later, Haynes came back into the bar and requested that Altman again come outside. When he did so, Haynes handed him a small plastic bag of a white powder, suspected to be cocaine, which Altman took back into the lounge and gave to Smith. Sitting at the table and making no effort to conceal her actions, Smith held the package up to the light, tapped the bag to get the substance to one corner, and then put it into her purse. Haynes at that time guaranteed the quality of the substance and offered to get them more in the future if they so desired. This substance was subsequently analyzed and determined to be cocaine. Thereafter, on March 24, 1984, Smith, in the company of undercover agent Jenkins, entered the lounge at about 9:30 p.m. She introduced Jenkins to Haynes and asked Haynes if he could get some cocaine for them. Haynes replied that he could do so but that his source would not be in until later in the evening. At approximately 3:30 the following morning, while Haynes was busy attempting to break up a fight which had just started, an individual identified as Haynes' source entered the bar, and Haynes pointed out Smith to him. This source, identified as Ric, came to Smith and gave her what was subsequently identified as cocaine in a plastic bag, for which she paid him $50. By this time, the lights, which had previously been turned out in an attempt to help stop the fight, were back on, and there was no attempt on the part of Ric to conceal the transaction. Later in the evening, Haynes asked Smith if she had been taken care of. Again, on April 8, 1984, Altman entered the Shark Lounge at approximately midnight. He approached Haynes, who was acting as a bouncer at the entrance, and asked to buy a half gram of cocaine. Haynes asked Altman to step outside and agreed to procure the cocaine for Altman if he would front the money for it. Altman paid Haynes $60 in cash at the Shark Lounge, and, pursuant to the agreement between the parties, the cocaine was subsequently delivered later that afternoon at the Canaveral Pier. The transfer of money from Altman to Haynes took place near the door in front of an independent security guard hired by Respondent. Haynes explained the transfer as being a payoff of a bet. On April 17, 1984, at approximately 9:00 p.m., Smith and Altman again entered the Shark Lounge and engaged Haynes in conversation, at which time Smith indicated that she wanted some more cocaine. Haynes replied he would get it, and Altman gave him $40 to purchase a half gram of cocaine. It was understood between them that Smith and Altman would be back the following evening to pick up the cocaine. When they did come back at approximately 11:45 p.m. on April 18, Haynes, who was out in the parking lot, motioned Altman to get into an Oldsmobile car, which Altman did. Haynes then removed the package of cocaine from the car's ashtray and attempted to give it to Altman, saying that it was good stuff. Altman, however, indicated that Smith had paid for it and that Haynes should give it directly to her. The two men then got out of the car and approached Smith, who was standing near the outside of the door to the lounge. Haynes attempted to give Smith the cocaine at that time, but she would not accept it and instead went into the lounge to use the restroom. As Haynes and Altman followed Smith into the lounge, Haynes pressed the cocaine onto Altman, indicating that he wanted to get rid of it. When Smith came back from the restroom a few moments later, Haynes told her he had already given the cocaine to Altman, who took it out of his pocket and put it in Smith's lap. She examined the cocaine and put it in her purse in full view of the other patrons of the bar. This substance, delivered by Haynes to Aliman and in turn to Smith, was subsequently identified as cocaine. Neither agent went back to the bar until April 26, 1984, at approximately 1:30 a.m., when Altman and Smith, in the company of Special Agent Eslinger of the U.S. Drug Enforcement Administration (DEA), entered the bar. They contacted Haynes, who was working as a bartender at the time, and Smith asked him to get a half gram of cocaine for her. Haynes agreed to do this and told her to check with him the next day to see if he had procured it. At the time of her request, Smith gave Haynes $50 for the cocaine. No further contact was had until late in the evening of April 30, 1984, when Altman, Smith, and an unidentified confidential informant entered the lounge. Smith asked Haynes at that time if he had obtained the cocaine she had paid for on April 26, and Haynes said that he had. This conversation took place near the door, where Haynes was working as a bouncer. Haynes took a plastic envelope containing a white powder from his right front pocket and gave it to Smith, who brought it back to the table and showed it to Altman. Later, pursuant to Smith's invitation, Haynes came to their table and said that over the weekend he had obtained some sensinilla, some speed, and another substance. Smith said she would like to have some speed, and Haynes said he could get 30 capsules of it for $15, which she gave to him. At this point, Haynes showed Smith a package of a black substance which he identified as hashish and offered to sell to her for $5. Smith did not buy any, however, and she, Altman, and the informant departed the lounge after telling Haynes they would be back for the speed the next night. The white powdery substance that Smith obtained from Haynes that night was subsequently tested and found to be cocaine. When Smith went back to the lounge on May 4, 1984, at 11:00 p.m., this time with Eslinger alone, she contacted Haynes, who was working as the bouncer. Haynes told her he had the speed which she had paid for previously on April 30 and told them to go sit down. Shortly thereafter, Haynes motioned for Smith to come over to the door area, and, when she did so, he briefly stepped outside the lounge and then immediately came back. When he returned, Haynes put a package inside Smith's purse, which she saw and which he stated was only 25 capsules instead of the 30 she had paid for. At this point, Smith asked Haynes if she could pay him $50 in advance for a half gram of cocaine, which Eslinger would pick up the following day at the Canaveral Pier. When Haynes agreed, Smith gave him the $50 while they were inside the bar. Thereafter, she and Eslinger left. The capsules which Smith received from Haynes that night in the lounge did not contain amphetamines or any other determinable controlled substance. When Altman and Smith next returned to the bar on June 3, 1984, they found Haynes standing by the entrance. About a half hour after they went in, Smith asked Haynes if he had any cocaine and, when he replied in the affirmative, gave him $50 in advance for a half gram of cocaine. The arrangements made at that time were that the cocaine would be picked up on June Somewhat later, when Altman and Smith were leaving, Haynes told Smith not to leave yet, that his source was getting the cocaine out of his car. Altman and Smith waited, and a few minutes later Haynes came up to Smith at the bar and dropped into her purse a small plastic bag which contained a white powdery substance subsequently identified as cocaine. When Haynes dropped the bag into her purse, Smith took it out and examined it in plain view at the bar, which was well lighted, before putting it back into her right-hand pocket. Shortly thereafter, Altman and Smith left. The packages containing cocaine, which Smith held up to the light to examine, were approximately an inch and a half by an inch and a half in size. Although other employees were in the immediate area at the time that she held the packages up, and Altman does not know hew they could have avoided seeing what Smith was doing, Altman cannot say for sure that the employees did see it, nor can Smith. No other employees of the Respondent were involved in any of the drug deals except for Haynes. No other employees were in the immediate area when the sales were made. Neither Smith, Altman, nor Eslinger engaged in any discussion of drugs with any other employee of the bar on the numerous times they were in there. Smith contends that she first went into the bar on March 12, 1984, with Altman to pick up some drugs offered at another bar. She started talking to a male at her right and asked him if he knew where she could get some grass. This individual said yes and went to make a phone call. Later, he identified himself as Harry Haynes and said that he worked there as a bouncer but was not on duty on that particular night. The drugs were not delivered that night, either. On March 14, at 2:00 a.m., Altman and Smith again went into the lounge. Smith approached Sherry, the bartender, and asked for Haynes, who was not there. Smith told Sherry that Haynes was to get her some grass, and, in Smith's opinion, Sherry did not react to this disclosure at all. Sherry, on the other hand, denies any conversation with Smith about drugs. She indicated that Smith came to her frequently and asked for Haynes but never mentioned drugs in any capacity. Had Smith done so, Sherry states, she would have asked her to leave. This last comment stands to defeat Sherry's credibility, however. It is unlikely that the comment was made. It is also unlikely that an experienced bartender, as Sherry is, would react by asking a repeat patron to leave for mentioning that Haynes was to get marijuana. Sherry is the only one in the bar, except for Haynes, to whom Smith mentioned drugs, although she had a conversation about drugs with Haynes in front of Ric, who is apparently also a bouncer. When Smith asked about that, Haynes said that it was okay. There is a divergence of opinion regarding the reputation of the Shark Lounge as a source of drugs. Randy Arles, a Melbourne Beach police officer on loan to the Cocoa Beach Police Department Vice Squad since mid-March of 1984 and operating undercover, was contacted previously by a confidential informant who indicated there was cocaine traffic at the Shark Lounge. Based on that information, Arles and another officer went in to try to make a buy but were unsuccessful because, as it was explained to him, his identity as a police officer had been disclosed. Information reaching him from such street sources as confidential informants and prostitutes indicated that the Shark Lounge was known as a place to buy cocaine and that Haynes, the bouncer, was the seller. This latter information, however, is hearsay testimony and, with the exception of that relative to Haynes, cannot serve as the basis for a finding of fact. The identity of Haynes as the seller is corroborated by other independent admissible evidence, however. On the other hand, Officer Charles B. Autry, who has been with the Cocoa Beach Police Department for 14 years, has come into contact with the Shark Lounge and its owner on several occasions and has been inside the lounge four or five times. To his knowledge, it is a well-run establishment, and he has never in his 14 years been called there while on duty. The owner is very businesslike and very cooperative. He runs a tight ship and encourages the police to come inside both while on and off duty. In Officer Autry's opinion, considering today's morality, any place where crowds congregate has the potential for drugs, including the Shark Lounge, which he would not class as a nuisance. This opinion was also held by Major Gary Hummel, who has been with the Cocoa Beach Police Department for 14 years. He has been in the Shark Lounge on many occasions and knows the owner personally. He considers Mr. Autry to be an upright businessman who is not himself involved in drugs. The lounge in question here is one of only two lounges in Cocoa Beach that Hummel will patronize and take his wife. Both socially and professionally, he knows of no employees who sell drugs at the lounge, but the employees know he is a police officer, and this may have some bearing on their behavior in his presence. Hummel believes the owner is tough and knows that he will fire any employee for being drunk on duty. He also discharges employees for even the slightest infractions of rules. This bar is not a nuisance in his opinion but is a good clean place where many of the Cape workers go. These sentiments were reinforced by the proffered testimony of Officers William MacDonald and Al Otto of the Cocoa Beach Police Department, who both have been in the Shark Lounge frequently both socially and professionally. They have been encouraged to come in by the owner and find the lounge to be a clean, well-run, drug-free operation. Sharon LeVaugh (Sherry) has worked at the lounge as a bartender for six and a half years and runs the floor operation. Her immediate supervisor is the owner, Mr. Autry, who, to her knowledge, has a strict policy against drugs. Anyone using them, whether it be an employee or a patron, is immediately put out of the place. There is a low turnover of employees at the Shark Lounge, because it is a good place to work. During the six and a half years she has worked there, Sherry has never seen drugs used at the bar. She had no idea that Harry Haynes was dealing in drugs and doesn't think anyone else did. The Shark Lounge is dark inside like a normal lounge. The crowd which patronizes it is made up of regulars, both young and old, with repeat patronage common. A lot of business comes from Space Center employees, and police are encouraged to come in frequently. Friday and Saturday nights are quite busy, with 200 to 300 people in attendance. The bar offers live music seven nights a week, and the music is a noisy rock and roll band. Chad J. Milkint, the manager of the Shark Lounge, has worked there for a little over a year. Before that, he worked at another bar in the area for three years and has been in the lounge business both in Florida and outside the state for more than 11 years. When Milkint was hired, the owner was very clear about the "no drug policy," and he has followed it closely. He has, on occasion, thrown people out for being intoxicated either on drugs or alcohol. There is, he claims, a practical reason for this. If a patron is intoxicated, he is not buying drinks, and they are in business to sell drinks. Milkint did not know Haynes was using drugs or selling them. If he had, he would have fired him immediately. It was not at all unusual for Haynes to go outside as part of his job. In fact, Haynes' duties included a patrol of the outside area around the bar three or four times a night. Milkint admits he did no background check on Haynes except to check with his former employer, who gave Haynes a favorable recommendation. Haynes was a part-time employee who worked two or three days a week as a backup to the main barmen in addition to his duties as a bouncer. In a normal week, Haynes would work approximately 20 hours and had been employed sporadically by the bar for only five or six months. During the period of employment at the lounge, Haynes also worked at the Canaveral Pier. When Milkint checked with the beverage manager there, he was told that Haynes' performance was satisfactory. Milkint is frequently in the bar and observes what goes on. He denies ever seeing anyone check baggies by tapping or holding them up to the light, as described by Altman and Smith. He does not believe his employees saw that, either, because he feels that if they had seen it they would have reported it. The owner also supervises on a day-to-day basis, and in Milkint's opinion the operation is a good, ethical, well-run establishment. The employees are good, the entertainment is good, and the drinks are good and sold at fair prices. Milkint does not know how he could have prevented the sales by Haynes that took place there. Gary C. Autry, sole stock owner of the Shark Lounge, has owned the establishment for eight years. He used to work more in the bar than he does now, but a recent blood condition has developed that has made him curtail his activities. When Autry came down with this condition, he hired Milkint as a manager and an individual by the name of Mike Harris as an assistant. He has known both of them for years and knew both had previous lounge experience. When he hired them, Autry told them immediately that his policy was "no drugs whatsoever." Although he cannot spend as much time in the establishment as he used to, Autry is nonetheless there seven days a week and closely supervises his operation. His bouncers are trained to handle drugs and work with the police. Had Autry known Haynes was selling or using drugs, Haynes would have been dismissed immediately. When he hires employees, he asks them their habits. He believes that because of his policies his turnover of employees is as low as it is.
The Issue This case concerns the issue of whether the Respondents' beverage license should be suspended, revoked or otherwise disciplined for permitting their licensed premises to be used for the purpose of prostitution and for gaining profit from that prostitution. At the formal hearing, the Petitioner called as witnesses, Beverly Fraley, Alfred Stone, and Raphael Grulau. The Respondents presented no evidence. The Petitioner offered and had admitted over the objection of the Respondent, one tape recording of conversations which occurred inside the licensed premises as a part of the undercover investigation by the Hillsborough County Sheriff's Office. Counsel for the Petitioner and counsel for the Respondents submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that these proposed findings and conclusions are inconsistent with the findings and conclusions contained in this order, they were considered by the Hearing Officer and rejected as not being supported by the evidence or as being unnecessary to the resolution of this cause.
Findings Of Fact At all times material to this proceeding, Katherine J. and Guy H. Sutton were the holders of a valid, current beverage license No. 39-1792, Series 2COP. This license was issued to a licensed premises called Guy's Tavern located on Highway 301, South, in Riverview, Florida. On May 12, 1983, Detective Beverly Fraley of the Hillsborough County Sheriff's Office, went to the licensed premises in an undercover capacity to investigate possible prostitution activity. On this particular evening, Detective Fraley was accompanied by two other detectives of the Hillsborough County Sheriff's Office in a backup capacity. Prior to entering the licensed premises, Detective Fraley was fitted with a body bug for the purpose of recording any conversations that she might have in the licensed premises during the course of the investigation. When Officer Fraley arrived, the two backup detectives were inside the licensed premises shooting pool. Upon entering the licensed premises, Officer Fraley went to the bar and ordered a drink. After obtaining her drink, she was approached by a white male, who called himself "Stogie." While talking with Stogie, another white male, who called himself "Turkey" approached Officer Fraley from behind and placed his arms around her. She had never met Turkey before. Officer Fraley pushed Turkey away and said "Keep your hands off the merchandise." Shortly after her encounter with Turkey, Officer Fraley began shooting pool with Stogie and the two undercover detectives. After a short time, she left the licensed premises with Detective Grulau and after a few minutes the two of them reentered the licensed premises. After reentering, Officer Fraley went to the ladies' rest room and when she came out, she was called over to the bar area by the owner, Guy Sutton, who was behind the bar. As Officer Fraley approached the bar, Mr. Sutton stated, "If you're going to fuck here you've got to pay me." Officer Fraley asked what he meant and he told her that she would have to pay him $5.00 for every trick" she took out of the bar. "Trick" is a slang or street term used to describe an act of prostitution. Mr. Sutton then identified himself as the owner and said that the other women in the bar also paid. Officer Fraley then gave Mr. Sutton a $5 bill. After paying Mr. Sutton, Officer Fraley turned to the bartender, Irene Springer, who was present during this conversation and asked if in fact the other women in the bar were required to pay. Irene Springer stated that the other women in the bar did in fact have to pay $5.00 per trick and a group of white females sitting at a table near the bar responded, "That's right honey." Later that evening, Officer Fraley left with the other undercover detective. When they returned, Guy Sutton was in the pool room area. Officer Fraley intentionally did not go over to Sutton. Shortly after she returned, Sutton came over to her and told her that she owed him another $5.00. He then told her that she would be better off paying him $25.00 per week rather than $5.00 per trick. He also stated that she had the potential to make $300 or $400 per week in his place. Guy's Tavern has a reputation in the community as a bar where prostitutes can be picked up.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered revoking Respondents' beverage license No. 39-1792, Series 2COP. DONE and ORDERED this 30th day of December, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether respondent's alcoholic beverage license should be disciplined on charges of unlawful drug activity, solicitation of a beverage, assignation of prostitution, and maintaining a public nuisance on the licensed premises.
Findings Of Fact The Licensed Premises At all times pertinent to this proceeding, respondent held beverage license No. 16-1393 SRX, Series 4-COP, in connection with its operation of the Seminar Restaurant and Lounge ("licensed premises" or "premises") at 1400 North Powerline Road, Pompano Beach, Florida. The Seminar Restaurant and Lounge serves food and alcoholic beverages to its customers and provides entertainment in the form of "topless" dancers. (Testimony of Chaddock, Coleman, Matlick.) II. Violations of Law Occurring on Premises On August 21, 1981; undercover Beverage Officer Louis Terminello entered the licensed premises and met Charlene Nelson, a dancer employed by respondent. She asked him to buy her a drink; he agreed. He asked if she knew where he could obtain some Quaaludes. She replied that another dancer named Rene Cavendish might have some. In a subsequent conversation, Ms. Cavendish offered to engage in sexual intercourse with Officer Terminello for $50. Later, that evening, he met Ms. Cavendish and purchased three methaqualone tablets from her for $15. This transaction occurred while they were seated at a booth-- con the premises; Ms. Cavendish handed the tablets to Officer Terminello by reaching across the table. (Testimony of Shomers, Pennie, Terminello.) While these events were taking place, Officer Terminello was serving as the backup officer for Officer Michael Imperial, another undercover beverage officer, who had entered the premises accompanied by Christine Wilson, a confidential informant working for DABT. After Officer Imperial and Ms. Wilson were seated at a table, dancer Cavendish approached them. Ms. Wilson asked her if any cocaine or Quaaludes were available. Ms. Cavendish replied that a nurse would be there later with some pharmaceutical Quaaludes for sale but that she would check with another dancer named "Stormy." Later, Ms. Cavendish returned to Officer Imperial's table and sold him two methaqualone tablets for the sum of $10. She also introduced Stormy, who said that she had sold out of cocaine but that she could bring him a gram on the next Monday. (Testimony of Imperial, Wilson, Shomers, Pennie.) On September 10, 1981, Officer Imperial and Ms. Wilson reentered the premises. Ms. Wilson made and sold dance costumes and was familiar with several dancers employed on the premises. Dancer Donna Robley approached them and asked Ms. Wilson to accompany her to the ladies' bathroom. While in the bathroom, Ms. Robley handed her the remaining portion of a marijuana cigarette. (Testimony of Imperial, Wilson, Shomers, Pennie.) On September 14, 1981, Officer Imperial and Ms. Wilson again entered the licensed premises to make a prearranged purchase of methaqualone from a dancer named "Wanda." Christine Taylor, another dancer, told them Wanda was off duty but that she would check to see if there were any "ludes" or "coke" available. Later, an unidentified dancer told Ms. Wilson that Christine Taylor wanted " to see her in the ladies' bathroom. When Ms. Wilson arrived at the ladies' bathroom, she found Ms. Taylor and another dancer smoking marijuana cigarettes. She gave the unused portion of the cigarettes to Ms. Wilson, who handed them to Officer Imperial while on the premises. (Testimony of Imperial, Wilson, Shomers, Pennie.) On September 23, 1981, Officer Imperial and Ms. Wilson again returned to the licensed premises to consummate a previously arranged drug transaction from a dancer named Joy Jacklin. After seating themselves in a booth, Officer Imperial and Ms. Wilson were approached by Ms. Jacklin, who asked Ms. Wilson to meet her in the dressing room. Upon arriving there, Ms. Jacklin handed Ms. Wilson a bag of marijuana. After placing it in her suitcase with her dance costumes, Ms. Wilson brought it to Officer Imperial. After receiving $35 from Officer Imperial, site returned to the dressing room and paid Ms. Jacklin. (Testimony of Imperial, Wilson, Shomers, Pennie.) On September 24, 1981, Officer Imperial and Ms. Wilson again visited the licensed premises. On this occasion, Ms. Wilson was given a marijuana cigarette by dancer Christine Taylor inside the dancers' dressing room. Ms. Wilson then delivered the cigarettes to Officer Imperial while on the premises. (Testimony of Imperial, Wilson, Shomers, Pennie.) III. Respondent Supervised Employees and Premises in a Reasonably Diligent Manner Respondent's owner and managers announced rules of conduct for its employees before it opened for business in July, 1981. They handed out written rules and discussed them with their employees, consisting of 10-15 dancers, 2 bartenders, 2-4 waitresses, 1-2 floorwalkers, and night-and day-shift managers. These employee rules prohibited solicitation of any kind. Employees were also instructed that drugs were prohibited on the premises; that if they saw drug violations, they should inform the manager; that violation of the rules would mean immediate dismissal. Employees were told to notify management of any employees who violated the rules, that failure to inform management of a violation would, in itself, be cause for dismissal. Copies of the employee rules were posted in the dancers' dressing room, both bars, both bathrooms, and the office. (Testimony of Chaddock, Coleman, Pastori, Matlick, Murray; R-1.) Respondent diligently enforced its rules. Managers emphasized the rules in meetings held periodically and frequently with employees. Managers and floorwalkers constantly "walked the floor" supervising employees and monitoring activities on the premises. When management discovered violations of the rules, employees were promptly dismissed. Ten to fifteen employees were fired during . The first eight months of business. Most were fired for appearing to be under the influence of a drug or alcohol, others were fired for solicitation. Management's diligence in supervising its employees is evidenced by the fact that it had independently dismissed the five dancers involved in violations (described in Section II above) before DABT filed charges disclosing their misconduct. (These dancers were fired for various infractions occurring in the three-month period between the undercover investigation and the filing of charges.) If patrons were discovered offering and possessing drugs--as happened once or twice--they were promptly escorted from the premises. When Officer Imperial (in an undercover capacity) attempted to purchase drugs on the premises, an employee reported that fact to the day manager, Arthur Chaddock. Mr. Chaddock firmly took Officer Imperial into custody, detained him, angrily interrogated him about dealing in drugs with his employees, and called the sheriff's office. The next day, Mr., Chaddock fired the female employee involved because she admitted having been involved in a prior drug sale. (Testimony of Chaddock, Coleman, Pastori, Matlick, Murray.) Respondent used reasonable care in selecting dancer applicants. Former employers of the applicants were contacted. Applicants with prior infractions were not hired. (While polygraph examinations were not given and background investigations were not conducted on dancers, such steps were not justified for employees with such a high turnover. DABT failed to establish that any other similar business utilized such devices.) (Testimony of Chaddock.) The violations described in Section II above were not flagrant and readily detectable. Neither were they so widespread, persistent, and recurring that it can be reasonably concluded that respondent was negligent in not discovering them. (DABT has not shown or contended that respondent's owner or managers were aware of or condoned the violations.) Even DABT's investigating undercover' officer admitted that it would have been "tough" for respondent to detect these violations. Two violations occurred in the ladies' bathroom and two in the dancers' dressing room. (Testimony of Imperial, Wilson, Johns.) Respondent was not negligent in supervising its employees and the licensed premises. It exercised reasonable end ordinary care in announcing rules of conduct and enforcing them. A similar "topless" lounge in the vicinity has operated under similar standards for 7 1/2 years without an infraction or charges filed by DABT. (Testimony of Chaddock, Coleman, Pastori, Matlick, Murray, Johns.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the notice to show cause and all charges against respondent be dismissed. DONE AND RECOMMENDED this 8th day of July, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1982.
Findings Of Fact Johnnie L. and Robert J. Mims are licensees of record holding license no. 27-78, Series 2-COP. They operate the premises known as the Libra Lounge located at 2409 North Palafox Street, Pensacola, Escambia County, Florida. The licensees had been disciplined in 1980 by the Division by the imposition of a civil penalty for a drug related offense at the licensed premises. The Division was requested by local law enforcement officials to assist in the investigation of the licensed premises because of suspected drug trafficking activities. The Division thereupon commenced an undercover investigation of the licensed premises, principally assigning Beverage Officer Paul Blackmon to conduct the investigation. On July 9, 1982, Officer Blackmon approached the Libra Lounge from the parking lot when, prior to reaching the door of the licensed premises, two black males, Donald Black and Leo Weatherspoon, approached and offered to sell him drugs. Officer Blackmon purchased a bag of suspected marijuana from each individual for $20 and $10 respectively. The suspected marijuana was properly bagged, sealed, and submitted to the Crime Laboratory for analysis. This analysis indicated the presence of cannabis in the material purchased. Johnnie Mims testified that he was aware that Donald Black was a drug dealer. On July 16, 1982, Officer Blackmon entered the Libra Lounge and took a seat at the bar. He observed Donald Black also at the bar. Officer Blackmon conversed with Black about the availability of drugs, and Black took several clear baggies of marijuana from his pocket in a manner easily observable by other patrons and the bartender. Officer Blackmon purchased a baggie for $10 which, after being properly bagged, sealed, and submitted to the Crime Laboratory, was determined to contain cannabis. On July 23, 1982, Officer Blackmon entered the Libra Lounge and immediately observed Donald Black and an unknown black female smoking marijuana inside the licensed premises. Officer Blackmon and Black engaged in discussions which culminated in Black offering to sell and, in fact, selling in plain view of anybody within the bar, a clear plastic baggie of marijuana. The substance purchased tested positive for the presence of cannabis. While Officer Blackmon was on the licensed premises at this time, he also observed another patron known as Duckworth openly smoke a marijuana cigarette inside the licensed premises which was passed around to several patrons. Duckworth also offered to sell Officer Blackmon marijuana. On August 20, 1982, Officer Blackmon was again inside the Libra Lounge. The on-duty bartender, Johnnie Rome Mims, advised Officer Blackmon that he could obtain narcotics from an individual known as "Tennessee", later identified as Anthony Johnson. Johnnie L. Mims also identified Anthony Johnson as a person he knew to be dealing in drugs. Officer Blackmon conversed with Tennessee, and was successful in purchasing, on the licensed premises a clear plastic baggie of marijuana in an open transaction. The substance purchased tested positive for the presence of cannabis. On September 16, 1982, Officer Blackmon again entered the Libra Lounge. while inside the licensed premises, he was approached by Donald Black who inquired whether Officer Blackmon was interested in purchasing any drugs. After receiving an affirmative response, Black shortly produced a clear plastic baggie of marijuana which he sold to Officer Blackmon in an open transaction witnessed by other patrons and the bartender, Johnnie R. Mims. The substance purchased tested positive for the presence of cannabis. On October 8, 1982, Officer Blackmon again entered the Libra Lounge. He inquired of the on-duty bartender, Johnnie R. Mims, whether Anthony Johnson was around. Johnnie R. Mims responded in the negative, but stated that if Blackmon was looking for some drugs that "Bull", the street name for Johnnie L. Nims had some. Johnnie R. Mims called Johnnie L. Mims over to the bar where they discussed with Officer Blackmon the purchase of "speed", the street term for amphetamines, at $1 per hit. Officer Blackmon purchased five directly from the licensee, Johnnie L. Mims, in a transaction across the bar. The substance was represented to Officer Blackmon to be speed or amphetamines. The laboratory report, however, indicated caffeine and not the presence of any illegal narcotic in the substance purchased. On November 5, 1982, Officer Blackmon approached the Libra Lounge from the parking lot and met Bull or Johnnie L. Mims. Officer Blackmon inquired about purchasing more amphetamines, and the licensee responded that he had none but was shortly expecting a shipment from Miami, and would hold some for him. Thereafter, Officer Blackmon entered the lounge and inquired of the on-duty bartender, David Hudson, whether any drugs could be purchased. Hudson took him to a combination storage room, living quarters, and bar, an area which was the living quarters of the licensee, Johnnie L. Mims. There, sitting in plain view, was a substantial quantity of marijuana in various size bags. Hudson allowed Officer Blackmon to pick out a bag in return for $20. The substance purchased tested positive for the presence of cannabis. On November 12, 1982, Officer Blackmon again entered the Libra Lounge and engaged in conversation with the on-duty bartender, David Hudson. Officer Blackmon again inquired as to the purchase of narcotics, and Hudson produced from a counter under the bar a brown cloth satchel containing a substantial quantity of marijuana in various size clear plastic baggies. Again, Hudson let Officer Blackmon pick out the particular bag which he wanted in a clearly open transaction which anyone in the bar could witness. The quantity purchased by Officer Blackmon on this date tested positive for the presence of cannabis. On November 19, 1982, Officer Blackmon entered the Libra Lounge with two marked $10 bills and a marked $5 bill in his possession. Officer Blackmon again approached the on-duty bartender, David Hudson, and asked about the purchase of narcotics. Again, Hudson produced the brown cloth satchel from under the bar. He also asked Officer Blackmon if he was interested in purchasing a quarter pound of marijuana. Officer Blackmon declined, but instead picked out a "10-cent bag" for which he paid Hudson $10 utilizing a marked bill. Again, this transaction occurred in plain view of anyone at the bar, and the substance purchased tested positive for the presence of cannabis. While on the licensed premises on November 19, 1982, Officer Blackmon observed two white females enter the bar and ask the bartender, Hudson, where Bull (Johnnie L. Mims) was. Officer Blackmon, who was in a position to overhear their conversation, heard Hudson state that he would have to take care of them. Thereupon, they commenced negotiations which resulted in the sale of a quarter pound bag of marijuana that Hudson had previously offered to Officer Blackmon. Also, on November 19, 1982, a beer truck was making a delivery of a quantity of beer to the licensee, Johnnie L. Mims. Mims had counted out $204 which he had left sitting on the cooler behind the main bar of the licensed premises. At this time, local police officers and beverage officers entered the licensed premises to serve an Emergency Order of Suspension on Mims, and to execute a search warrant on the licensed premises. The $204 that Mims was about to pay the beer truck driver contained the marked $10 bill that Officer Blackmon had just utilized to purchase the marijuana. In the search of the licensed premises, the officers found the brown cloth satchel containing numerous bags of marijuana, all of which tested positive for the presence of cannabis. The police also found marijuana on David Hudson and on Anthony Johnson, and a bottle of moonshine whiskey behind the bar.. They also found several items of stolen property, including a white tuxedo stolen from Mitchell Formal Wear and valued in excess of $100, a quantity of jeans reported stolen from the National Shirt Shop and valued at $147, a Bear Cat scanner reported stolen from a residence and valued at $500, a Tappan Microwave Oven reported stolen from Corpus Christi, Texas, and valued in excess of $100, a Honeywell Ultrasonic Burglar Alarm reported stolen and valued in excess of $100, and a dishwasher still in its carton and valued in excess of $100. Johnnie L. Mims testified that he had a no-drug policy, as set forth in a number of signs posted throughout the licensed premises. However, Lt. Baxley, the head of the Pensacola Beverage Office, who has been on the licensed premises, never observed any signs concerning such a policy. Mims further testified that he knew both Donald Black and Anthony Johnson were dealing in drugs. Both Donald Black and Anthony Johnson were repeatedly on the licensed premises. Anthony Johnson was arrested on November 19, 1982, for possession of marijuana at a time when Johnnie L. Mims was on the licensed premises. The remaining testimony of Johnnie L. Mims was clearly self-serving. He asserted he was so involved with his community activities and taking care of his sick mother that he had no opportunity to supervise the licensed premises Such testimony ignores the fact that he sold to Officer Blackmon what was represented to be speed or amphetamines, and discussed a further shipment of drugs that he was to receive. This testimony was not denied or refused by Mims.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the license issued to Johnnie L. Mims and Robert J. Mims d/b/a The Libra Lounge, be revoked. THIS RECOMMENDED ORDER entered this 1st day of March, 1983. WILLIAM B. THOMAS, 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 1st day of March, 1983. COPIES FURNISHED: Harold F.X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Johnnie L. Mims 2409 North Palafox Street Pensacola, Florida 32501 Robert J. Mims 2409 North Palafox Street Pensacola, Florida 32501 Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue for consideration is whether Respondent's alcoholic beverage license should be disciplined because of the alleged misconduct outlined in the Notice to Show Cause filed by Petitioner.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent, Jose Manuel Acosta, was doing business at 425 Northwest 12th Avenue, Miami, Dade County, Florida, as La Romanita Cafeteria under a series 2-COP alcoholic beverage license number 23-03308. Orlando Huguet is an investigator with the Petitioner, DABT, and has had prior experience with the Coral Gables Police Department and as an investigator with the United States Air Force. During the course of his employment with the DABT, he has been involved in several undercover operations and is fully familiar with the appearance and properties of crack (rock) cocaine. He is also aware that it is a very addictive drug and that it is usually packaged in small cellophane bags but may come in other containers or not be packaged at all. During the period of mid-August to mid-October, 1987, Mr. Huguet, along with other law enforcement investigators (LEI) of DABT and agents with the Metropolitan Dade County Sheriff's Department and the Miami Police Department were involved in an undercover investigation of Respondent's place of business as part of an investigation of drugs in bars in Dade County. During the investigation, they would enter the premises in the afternoon or evening and attempt to purchase crack cocaine from the licensee, employees or patrons of the establishment. La Romanita's is primarily frequented by Spanish speaking customers. On August 28, 1987, Huguet entered La Romanita in an undercover capacity in the evening along with a confidential informant (CI). This confidential informant was utilized by Huguet in several undercover investigations. Huguet and the CI took seats at the bar counter and ordered drinks. Huguet observed the licensee, Jose Manuel Acosta, standing in front of him, behind the counter. Huguet overheard the CI ask Acosta if he (Acosta) had any drugs for sale today. Acosta commented that he had run out of drugs, but to try him tomorrow. Acosta continued to discuss drugs with Huguet, the CI, and other patrons. Subsequently, a black Latin male named Miguel approached Huguet and the CI and inquired if they were looking for drugs. Later on Huguet purchased cocaine ("perico" in Spanish) from Miguel outside the licensed premises. On August 29, 1987, at approximately 11:30 p.m., Huguet and the CI entered the licensed premises and observed the owner, Jose Manuel Acosta, sitting drown at a table with another man identified as Flaco. Huguet and the CI engaged Acosta in conversation which revealed that Acosta would provide one- half ounce of cocaine to the CI and Huguet at a future date. Subsequently, Huguet and the CI left the premises. On September 3, 1987, Huguet and the CI entered the establishment in the evening and approached the bar counter area and engaged in general conversation with a barmaid. Huguet observed a white Latin male, Tobacito, walk to the end of the bar counter, open a brown paper bag, and retrieve two pieces of suspected crack cocaine. Tobacito gave the suspected cocaine to a white Latin male in an open manner and the white Latin male gave Tobacito $20.00. Subsequently, Huguet instructed the CI to try to make a drug purchase from Tobacito. The CI approached Tobacito who reached into the same brown paper bag and took two pieces of rock ("piedra" in Spanish) cocaine and gave them to the CI in exchange for $20.00. Huguet witnessed this entire transaction and took the cocaine from the CI immediately after the drug transaction. Tobacito approached the table where Huguet and the CI were sitting, which is located on the east side of the premises. Tobacito negotiated a drug transaction with Huguet for $10.00 and then left the licensed premises, returning shortly thereafter with the cocaine. When Huguet received the piece of crack cocaine from Tobacito, he held it up to eye level, examined it, and then placed it in his front pocket. A short time later Huguet walked over to the bar counter, took a seat next to a patron named Warapito, and engaged in a general conversation about drugs. Warapito bragged that he sold the best rocks in town and stated they would enhance Huguet's sexual performance. During this conversation, Huguet retrieved the rock cocaine he had previously purchased and dropped it on the floor in front of several patrons. Warapito and another patron retrieved the cocaine and returned it to Huguet. This incident was observed by an employee, Papo, who is the son of the licensee, Jose Manuel Acosta. Thereafter, Tobacito came over to Huguet and Warapito and began to argue with Warapito over who sold the best rock cocaine. This conversation took place in front of several patrons and Papo. On September 4, 1987, Huguet entered La Romanita in the early afternoon and took a seat at one of the tables on the east side of the premises. Huguet engaged in conversation with an employee, Pepito, relative to cocaine. Pepito stated that he could get one-half ounce, but that he would have to make a phone call first since it was not on the premises. During this time, Huguet noted that Pepito did the duties and functions of an employee (serving patrons, working behind the counter, using the cash register and taking orders). Pepito proceeded to make the phone call and a short time later the licensee, Jose Manuel Acosta, entered the licensed premises carrying a large box which he gave to Pepito who took the box to the storage room. Within seconds Pepito exited the storage room, came to Huguet's table and handed him a baggie of cocaine wrapped in toilet paper. Huguet put the baggie on the table and unwrapped it to conf irm that it was cocaine. Huguet rewrapped the baggie, placed it in his right front pocket and handed Pepito $320.00. During this entire transaction, Huguet observed the licensee go by his table several times. On September 16, 1987, Huguet entered La Romanita at approximately 9:20 p.m. and observed that there were several patrons and two Latin female employees on duty. Huguet took a seat at a table located in the southeast area of the licensed premises and engaged in conversation with patron Tobacito. Huguet and Tobacito negotiated a cocaine transaction and Huguet gave $20.00 to Tobacito who exited the licensed premises, returning a short time later. Tobacito gave the crack cocaine to Huguet who held it up to eye level to examine. At this point, a patron, Jacquin, who was sitting at an adjacent table, offered Huguet a piece of aluminum foil in which to wrap the crack cocaine. Huguet took the foil from Jacquin and wrapped it around the cocaine. This transaction was observed by several patrons, as well as the two female employees. On September 18, 1987, Huguet entered the licensed premises and took a seat at the bar counter where he struck up a conversation with patron Tobacito. Tobacito asked Huguet if he wanted anything and Huguet responded that he was willing to purchase some cocaine. Tobacito stated that he had only one piece of crack cocaine left, but was willing to sell it for $20.00. Huguet agreed and Tobacito then left the licensed premises. Huguet approached Warapito and engaged in general conversation about cocaine. Warapito took a small piece of rock cocaine from his pocket and offered it to Huguet for $22.00. Huguet gave Warapito the $22.00 and in return received the rock cocaine. This transaction was observed by employee, Isabel, who had been waiting on the two patrons. Huguet noted that Isabel performed the functions and duties of an employee (waiting on customers, working behind the counter and using the cash register). A short time later Tobacito entered the licensed premises and handed Huguet a piece of rock cocaine. Huguet placed the cocaine on top of the bar counter and proceeded to examine it in plain view of employee Isabel. Huguet then placed the cocaine in a napkin, put it in his right front pocket, and paid Tobacito $20.00. On September 24, 1987, Huguet entered La Romanita and took a seat at the bar counter. Warapito approached Huguet and asked if he needed any rocks (cocaine). Huguet stated that he did and gave Warapito $20.00. This conversation took place in front of employee, Papo. Papo proceeded to leave the bar counter area, enter the women's restroom and lock the door. Another employee, identified as Chino, noted Papo's actions and advised Huguet that if Huguet ever wanted to "shoot up, snort up, or smoke up," that Chino would let him have the key to the women's bathroom. Huguet noted that Chino performed the duties and responsibilities of an employee (serving customers, working behind the counter and using the cash register). A short time later, Warapito reentered La Romanita and gave Huguet a large piece of rock cocaine. Huguet placed the cocaine on top of the bar counter, examined it, and proceeded to wrap it in a napkin in front of employees Chino and Alisa. Huguet stated that Alisa also performed the duties of an employee (waiting on customers, working behind the counter and using the cash register). Tobacito subsequently approached Huguet and handed him two pieces of rock cocaine which Huguet placed on top the bar counter and examined. He then wrapped the cocaine in a napkin. Alisa and Chino were in a position to observe this transaction as well. A short time later, Warapito and Tobacito began to argue over who sold the better rock cocaine. A few minutes later Huguet paid Tobacito $20.00 for the cocaine he had received and exited the licensed premises. On September 29, 1987, Huguet entered La Romanita and approached Tobacito who was sitting on a bar stool next to the counter. Tobacito told Huguet that he was sorry but that he had run out of rocks (cocaine). Huguet then called Warapito over to where he was sitting and asked him if he had any drugs. Warapito replied that he could get Huguet cocaine but would need $30.00 up front. Thereupon, Huguet handed him the money and Warapito exited the premises. This conversation took place in front of several patrons and an employee, Papo, who was standing behind the counter making change from the cash register. A short time later, Warapito entered La Romanita and handed Huguet two pieces of rock cocaine. Huguet took the cocaine, held it up to eye level to examine in front of several patrons and an employee, Chino, and then placed the cocaine in a napkin he had retrieved from the counter. On September 30, 1987, Huguet entered the premises and met with Warapito. Warapito offered to sell Huguet one gram of cocaine for $50.00 but stated that he would need the money up front. Huguet gave Warapito the money whereupon Warapito exited the premises. A short time later Huguet approached the bar counter and took a seat next to Tobacito. Tobacito advised Huguet that if he (Huguet) wanted any drugs that he (Tobacito) had two pieces of rock cocaine left and would sell them for $20.00. Huguet agreed to buy the cocaine whereupon Tobacito exited the premises. A short time later, Tobacito returned and presented the cocaine to Huguet in front of employees Alisa and Chino. Huguet took the two pieces of rock cocaine, examined them and made the comment that they were very dirty. Tobacito exclaimed that he had dropped the cocaine on the way back to La Romanita because he had been frightened when he had observed police officers nearby. Huguet then paid Tobacito the $20.00. A short time later, Warapito returned to the premises and stated that he had been unable to find any cocaine and returned the $50.00 to Huguet. On October 1, 1987, Huguet entered La Romanita and proceeded to the juke box area of the premises to have a conversation with Warapito. Warapito advised Huguet that he would try to obtain one gram of cocaine for him for $50.00. Huguet and Warapito discussed the drug purchase in further detail. Standing next to Huguet and Warapito was Jose Manuel Acosta, the licensee, who was in a position to hear the conversation. Subsequently, Warapito told Huguet that he thought he was a police officer. Huguet denied this allegation and then departed the licensed premises. On October 6, 1987, at approximately 12:15 p.m., Huguet entered La Romanita and approached Tobacito and Warapito at the bar where they were talking to employee Papo. Tobacito asked what Huguet wanted and Huguet responded that "twenty" would do. Huguet gave Tobacito the money and Tobacito exited the premises. Warapito subsequently told Huguet that he (Warapito) was going to secure a half gram for a friend of his and asked if Huguet wanted any cocaine as well. Huguet replied that he would like one gram and gave Warapito $50.00. A short time later, Tobacito reentered La Romanita and handed Huguet two rocks of cocaine in front of Papo. Huguet examined the cocaine at eye level, took a napkin from the bar counter and wrapped up the cocaine. A few minutes later, Warapito reentered La Romanita and gave Huguet back his money stating that he had been unable to locate any cocaine. All of the events referred to herein, with the exception of the drug purchase on August 28, 1987, took place on the licensed premises during business hours when other employees and patrons were present on the licensed premises. None of the employees or patrons who sold or delivered cocaine to Officer Huguet, or allowed others to do so, ever expressed any concern about any of the drug transactions and took no action to prevent or discourage drug transactions. The licensee, Jose Manuel Acosta, stated that he was neither present during most of the dates set out in the Notice to Show Cause nor did he hear or observe any drug transaction. He denied ever meeting or speaking with Officer Orlando Huguet about any cocaine transactions. He knew that drugs were easily obtainable in the area of town in which La Romanita was located, but did not believe that he had any drug problems on his premises. In light of the detailed testimony of Officer Huguet, which was recorded in his report, stating he and the CI spoke with Mr. Acosta on two occasions about purchasing cocaine and that on one other occasion Mr. Acosta was in a position to observe a cocaine transaction, Mr. Acosta's statements are not credible. Mr. Acosta did not perform polygraph examinations or background checks on his employees and did not use a security guard on the licensed premises. The premises contained no signs or other form of documentation revealing to patrons the policy of the management relative to drug possession, sale or usage. Instead, the only sign on the licensed premises stated that customers should not detain themselves if they were not going to consume. Mr. Acosta denied that Pepito, Isabel or Chino were his employees. Instead, he stated that he employed his wife, his son Papo, other relatives and occasionally people to help him lift things on his licensed premises. He did admit that Alisa was his employee for several weeks. His only policy concerning drugs was to tell his employees that it was illegal and to call "911" if there was a problem. He noted that he had received letters from the Division of Alcoholic Beverages and Tobacco but did not read them because he did not know English. At all times material to this case, Papo, Pepito, Isabel, Chino and Alisa were employees on the licensed premises of La Romanita. They performed the functions and duties of employees in that they served customers, worked behind the counter, waited on tables and used the cash register. The great majority of drug transactions related herein took place in plain view on the licensed premises of La Romanita. The exchanges of drugs and money in conjunction with the open conversations engaged in by employees, patrons and Officer Huguet demonstrated a persistent pattern of open and flagrant drug activity. The instances occurring at La Romanita were sufficiently open to put a reasonably diligent licensee on express notice that drug sales were occurring on the licensed premises.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the alcoholic beverage license held by Respondent, Jose Manuel Acosta, No. 23-03308, series 2-COP, be REVOKED. RECOMMENDED this 4th day of February, 1988, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1988.
Findings Of Fact Central Florida Clubs Number 2 was the holder of the State of Florida Alcoholic Beverage License-Number 58-696 for the period October 1, 1976 through September 30, 1977. DABT seeks to assess a civil penalty against Central Florida Clubs Number 2 or to suspend or revoke its beverage license on the grounds that nine (9) violations of Section 847.011, Florida Statutes, occurred on the premises of the Central Florida Clubs Number 2 on May 11, 1977. On that date, dance routines involving topless female dancers touching male customers in a sexually suggestive manner occurred on the premises. No evidence was introduced purporting to establish that any of the dancers were agents or employees of Central Florida Clubs Number 2. Accordingly, it is found as a matter of fact that the dancers were not agents or employees of Central Florida Clubs Number 2. No evidence was introduced purporting to demonstrate whether to the average person applying contemporary community standards, the dominant theme of the material, taken as a whole, appealed to prurient interest. Accordingly, it is found as a matter of fact that to the average person applying contemporary community standards, the dominant theme of the material presented at the Booby Trap taken as a whole did not appeal to prurient interest. No evidence was introduced purporting to establish that David Lee Feller was an agent or employee of Central Florida Clubs Number 2., Accordingly, it is found as matter of fact that David Lee Feller was not an agent or an employee of Central Florida Clubs Number 2.
Findings Of Fact At all times material hereto, Respondents, Alejandrina Mora and Felix Aristides, held alcoholic beverage license number 23-4816, series 2-APS, and 23- 8295, series 2-COP, for the premises known as Las Tunas Market and Cafeteria, 628-30 6th Street, Miami Beach, Florida. In March 1988, Petitioner, Division of Alcoholic Beverages and Tobacco (DABT), in conjunction with the Miami Beach Police Department (MBPD), began a narcotics investigation at the licensed premises. Previously, Sergeant Tom Hunker and Detective Walter Campbell of the MBPD had made several drug arrests at the licensed premises, and had warned the owners to stop such activities on their premises or their licenses would be subject to revocation. On March 8, 1988, DABT Investigator Oscar Santana, operating undercover, entered the licensed premises. During the course of his visit, he observed a male patron known as Junior sell what appeared to be rock cocaine to several persons both on and off the licensed premises. After observing the foregoing transactions, Investigator Santana approached Junior and asked him if he had any more to sell. In response, Junior handed Santana two crack cocaine rocks, for which Santana paid Junior $20. This transaction occurred in plan view of respondents' employee Gonzalo. 1/ On March 9, 1988, Investigator Santana returned to the licensed premises. Upon entering, Santana was approached by Junior who inquired as to whether he would be interested in purchasing some more cocaine. Santana responded affirmatively, and handed Junior $20. Junior then left the premises for a short time, and when he returned handed Santana two crack cocaine rocks. This transaction occurred at the counter, and in plain view of respondents' employee Gonzalo. After the foregoing transaction, Investigator Santana was approached by another patron known as Paul, who inquired whether he would be interested in buying some cocaine. Santana agreed to buy from Paul if he brought it to the licensed premises. Paul left the premises, returned shortly thereafter, and met Santana just outside the door. At that time, Santana paid Paul $30 in exchange for two crack cocaine rocks. During the course of this transaction, respondents' employees Ricky and Gonzalo were nearby. On March 10, 1988, Investigator Santana returned to the licensed premises. During the course of his visit, Santana met with a patron known as Charlie, who offered to sell him some cocaine. Santana handed Charlie $20 and observed him leave the premises, walk across the street, and hand the money to another individual. Shortly thereafter, Charlie returned to the licensed premises and delivered the cocaine rocks to Santana. The exchange between Santana and Charlie took place in plain view and in the presence of respondents' employee Nene. On March 17, 1988, Investigator Santana returned to the licensed premises. Also on the premises that day were DABT Investigators Jenkins and Elkin, operating separately from Santana to provide backup for him. As he entered the premises, Santana seated himself with Junior and respondents' employee Ricky at a table by the front door. There, in front of Ricky, Santana purchased a cocaine rock from Junior for $20. Ricky, suspicious of Jenkins and Elkin, two female non-latins, warned Santana to be careful because the two females were police officers. On March 18, 1988, Investigator Santana returned to the licensed premises. Investigators Jenkins and Elkin, again operating separately from Santana, were also on the premises that day. Upon entering the premises, Santana was approached by a patron known as Reyna who inquired whether he was interested in purchasing some cocaine. Santana responded yes, handed Reyna $25, and Reyna left the premises. After Reyna left the premises, Santana seated himself at the front table. When Reyna returned, she sat down at the table with him and delivered, above the table, two cocaine rocks. This transaction took place in front of respondents' employee Ricky, who again warned Santana to beware of the police officers (Investigators Jenkins and Elkin). Later that day, Santana gave Junior $20 to purchase cocaine for him. When Junior delivered the rock cocaine to Santana it was done in plain view and in the presence of respondents' employees Gonzalo and Ricky. During the course of this visit to the premises, Investigators Jenkins and Elkin, also undercover, were seated separately from Santana. At some point they were joined by a male patron who later gave them two marijuana cigarettes. The investigators retired to the women's bathroom and burnt a marijuana cigarette to see what, if any, response it would bring. While one of respondents' employees entered the bathroom after they left, the aroma of marijuana brought no response. On March 21, 1988, Investigator Santana returned to the licensed premises. Upon entry, Santana, respondents' employee Gonzalo, and two black latin male patrons were the only persons present. These patrons approached Santana and inquired if he was interested in purchasing marijuana. Santana responded yes, and paid the men $20 for approximately one ounce of marijuana. This transaction occurred in plain view, and in the presence of Gonzalo. On March 24, 1988, Investigator Santana returned to the licensed premises. During the course of his visit he met with Junior inside the bathroom, and purchased two cocaine rocks for $40. On March 25, 1988, Investigator Santana returned to the licensed premises. Santana was approached by Junior who inquired whether he was interested in purchasing some cocaine. Santana handed Junior $40, and Junior left the premises to get the cocaine. Upon his return, Junior placed the cocaine rocks on the counter in front of Santana. This transaction occurred in plain view, and in the presence of respondents' employees Gonzalo and Ricky. All of the events summarized in the proceeding paragraphs took place at the licensed premises during normal business hours. At no time did respondents' employees express concern about any of the drug transactions. In fact, the proof demonstrates that all of the employees knew that marijuana and cocaine were being sold on the licensed premises on a regular, frequent and flagrant basis. Neither respondents, who were on notice of such activities, nor any of their employees, took any action to prevent, discourage, or terminate the sale of any controlled substance.
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 23-4816, series 2-APS, and alcoholic beverage license number 23-8295, series 2-COP, issued to Alejandrina Mora and Felix Aristid d/b/a Las Tunas Market and Cafeteria, for the premises located at 628-30 6th Street, Miami Beach, Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of April, 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 29th day of April, 1988.
Findings Of Fact Based upon the evidence adduced at hearing, the factual stipulations of the parties, and the record as a whole, the following Findings of Fact are made: Respondent and the Mermaid Bar Respondent, whose sole corporate officer and shareholder is Robert Simone, holds alcoholic beverage license number 60-00429, Series 4-COP issued by the Department. The licensed premises is the Mermaid Bar (hereinafter referred to as the "Mermaid"), a bar located in Palm Beach County that, like a handful of others in the County, offers adult entertainment featuring female dancers wearing little or no clothing. Operation and Management of the Mermaid James Galbraith manages the Mermaid pursuant to a verbal agreement that he has with Simone. Simone nonetheless plays an active role in the day-to-day operation of the bar and pays regular visits to the establishment, usually in the daytime during the morning hours, to check on things. Among the managerial responsibilities that Simone has delegated to Galbraith is authority over personnel matters, including the hiring, disciplining and firing of the barmaids and dancers who work at the bar. Galbraith exercised such authority when, with input from Simone, he drafted the following written "[r]ules for conduct of dancers" (hereinafter referred to as the "Rules"): Anyone dancing on stage [is] not allowed to show any pubic area. Anyone doing so will be dismissed. Anyone dancing on floor must wear cover up at all times. All girls are to work a minimum of 4 days. No girls are to solicit for anything (drinks, etc.). No girls are to take phone numbers or give out phone numbers. Private dances are $5.00 or $10.00 contribution. 2/ No bumping or grinding, no letting customers grab breast or pubic area. No touching of customers. You will be called down one time. If you have to be called down twice, you will be dismissed. If you have a problem with a customer, stop dancing and get a bouncer. Do not try to handle it yourself. Each dancer receives a copy of the Rules upon being hired. In addition, a copy is posted in the dancers' dressing room. When he is present at the bar, Galbraith is responsible for monitoring the activities taking place on the premises and maintaining order. He relies on the barmaids to assist him in keeping an eye on the dancers. Prior Disciplinary Action In November of 1992, the Department's predecessor, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (hereinafter referred to as "DBR"), served on Respondent a Notice to Show Cause that contained the following allegations: On or about August 20, 1992, you, MERMAID BAR, INC., a vendor licensed under the beverage laws of the State of Florida, through you, your agents, servants, employees or entertainers, to wit: LESSIE MAE STRANGE AKA LESSIE MAE COLLIGAN, while on your licensed premises, did unlawfully commit or engage in lewdness by dancing in a topless state for Special Agent Sgt. HOOPER, rubbing her breasts across the Agent's face and body and forcefully rubbing her crotch area against the Agent's groin, simulating sexual intercourse, in exchange for U.S. Currency, contrary to Section 796.07(3)(a), F.S., within Section 561.29., F.S. On or about August 20, 1992, you, MERMAID BAR, INC., a vendor licensed under the beverage laws of the State of Florida, through you, your agents, servants, employees or entertainers, to wit: DEBRAH BACON, while on your licensed premises, did unlawfully commit or engage in lewdness by dancing in a topless state for Special Agent Sgt. HOOPER, rubbing her breasts across the Agent's face and body and forcefully rubbing her crotch area against the Agent's groin, simulating sexual intercourse, in exchange for U.S. Currency, contrary to Section 796.07(3)(a), F.S., within Section 561.29., F.S. On or about August 20, 1992, you, MERMAID BAR, INC., a vendor licensed under the beverage laws of the State of Florida, through you, your agents, servants, employees or entertainers, to wit: DEBBIE ANN SEIWELL, while on your licensed premises, did unlawfully commit or engage in lewdness by dancing in a topless state for Special Agent STOOPS and Sgt. HOOPER, rubbing her breasts across the Agent's face and body and forcefully rubbing her crotch area against the Agent's groin, simulating sexual intercourse, in exchange for U.S. Currency, contrary to Section 796.07(3)(a), F.S., within Section 561.29., F.S. On or about August 20, 1992, you, MERMAID BAR, INC., a vendor licensed under the beverage laws of the State of Florida, through you, your agents, servants, employees or entertainers, to wit: BARBARA GENE PORTER, the Manager/Person in Charge, did maintain a place for lewdness, by allowing female dancers to rub their exposed breasts across the faces and bodies of Special Agents STOOPS and Sgt. HOOPER and by allowing the female dancers to forcefully rub their buttocks and crotch areas into the groin areas of Special Agents STOOPS and Sgt. HOOPER, simulating sexual intercourse, a violation of Section 796.07(2)(a), F.S., within Section 561.29, F.S. These activities in which the dancers allegedly engaged with Stoops and Hooper are commonly referred to, in adult entertainment establishments, as "lap dances." On May 28, 1993, Simone signed a consent agreement acknowledging the violations alleged in the Notice to Show Cause and agreeing to pay a fine of $2,000.00 to settle the matter. DBR accepted and signed the agreement on July 6, 1993. The April 7, 1993, Undercover Operation On April 7, 1993, the Department conducted an undercover operation at the Mermaid in which Special Agent Johnnie Wilson participated. While Wilson was at the bar, he observed from his vantage point a female dancer whose stage name was "Kellie," as well as five or six other female dancers, in exchange for money, perform "lap dances" with patrons of the establishment. 3/ Galbraith and a barmaid were on the premises at the time and neither took any action to try to stop "Kellie" and the other dancers from "lap dancing." No arrests were made as a result of this April 7, 1993, undercover operation. The May 6, 1993, Undercover Operation Special Agent Stoops went to the Mermaid the afternoon of May 6, 1993, as part a follow-up undercover operation conducted by the Department. After he had been there for approximately 15 to 20 minutes, he was approached by one of the dancers working at the establishment that afternoon, Lucia Maria Campos. Campos asked Stoops if he wanted a "lap dance." Stoops responded in the affirmative. Campos thereupon removed her top (but not her bottoms) and proceeded to "lap dance" with a fully clothed Stoops. During the "lap dance," Campos rubbed her breasts against Stoops' chest and grinded her groin and buttocks in the area of his crotch in a provocative manner. Stoops paid Campos for the "lap dance." Stoops observed Campos "lap dance" with another patron during his visit to the Mermaid that afternoon. Although Campos performed her "lap dances" openly, in plain view, neither the barmaid on duty nor anyone else on the premises expressed any disapproval of Campos' actions. The May 12, 1993, Undercover Operation On May 12, 1993, at around 10:00 or 11:00 p.m., three detectives from the Palm Beach County Sheriff's Office working undercover, Jeffrey Andrews, Kevin O'Brien and Ted Smith, entered the Mermaid. The purpose of their visit was to determine if any of the dancers working at the establishment were engaging in lewd behavior. After entering the Mermaid, Andrews and O'Brien sat down next to each other at a table in front of the stage on which the dancers performed. Smith took a seat near the bar. While Andrews was seated at the table, Kerren Flores, a dancer who was working at the Mermaid that evening, came up to him and asked him if he wanted a "lap dance" for $10.00. Flores was wearing a bikini top and G-string bottom. After Andrews accepted her offer, she took off her top. Standing approximately two feet in front of Andrews, she began fondling her breasts with her hands and manipulating, and then licking, her nipples. Next, she leaned over and rubbed her bare breasts against the lower portion of Andrews' face. She then turned around, sat down on Andrews' lap and started to simulate sexual intercourse by grinding her buttocks into his groin area. The "lap dance" lasted the length of one song that was being played by the DJ over the bar's sound system. After it was over, Andrews' paid Flores the $10.00 she had requested for the "dance." Another dancer working at the Mermaid that evening was Laura Chapman. While performing on stage, she removed all of her clothing, fondled and licked her bare breasts and suggestively stroked her vaginal area. After finishing her performance on stage and putting back on her bikini top and G-string bottom, Chapman approached Andrews and inquired if he was interested in a "lap dance." Andrews said he was and, at Chapman's request, the two moved to a different table. Chapman then proceeded to remove her bikini top and performed a "lap dance" with Andrews which was virtually identical to the one Flores had performed with him earlier that evening. Andrews paid Chapman the $10.00 she had asked for to perform the "lap dance." Andrews' colleague, O'Brien, was also propositioned during the undercover operation that evening by one of the bar's dancers. Maija Liisa Cardinaux was the dancer who propositioned him. She was also helping serve drinks that evening. Cardinaux walked up to O'Brien and asked him if he wanted to order a drink. At the same time, she inquired if he wanted a "lap dance." O'Brien expressed an interest in the latter. Cardinaux led O'Brien to another area of the bar and had him sit down on a bar stool. After O'Brien was seated, Cardinaux placed her hands on his shoulders and told him to relax. Cardinaux, who was wearing a bikini top and bottom, then took off her top and started to fondle her breasts and lick her nipples while standing in front of O'Brien. Next, she put her arms around O'Brien and pulled his head into her breasts. She then let go of O'Brien, turned around, sat down on his lap and began to vigorously rub her buttocks and groin area against his crotch. These bumping and grinding movements simulating sexual intercourse lasted approximately one to one and a half minutes. Two other dancers working at the Mermaid that evening during the undercover operation, Angela Ratliffe King and Lisa Berling, gave sexually suggestive performances that were patently offensive, that lacked any serious artistic value and that the average person, applying contemporary community 4/ standards, would find, taken as a whole, appealed to prurient interests. King was initially dressed in a black bra and panties. During the first song that she danced to on stage, she took off her top and started to fondle her breasts. She thereupon turned her back to the audience, slapped and rubbed her buttocks, and began to fondle and stroke her vaginal area. During the second song, she removed her panties and exposed her vaginal area to the audience. She then turned around and, with her back to the audience and her legs a little more than shoulder width apart, bent over, put her arms between her legs and started to pull her buttocks apart, further exposing her vaginal area to the audience. Still bent over with her back to the audience, she began to stroke her vaginal area with her fingers as if she was masturbating. Lisa Berling gave a similar performance, except that, unlike King, she was completely nude throughout her performance and, although she started out on the stage, she concluded her performance on the counter of the bar, within an arm's length of where one of the undercover detectives, Ted Smith, was seated, along with other patrons. Galbraith's wife, Ann Galbraith, was tending bar at the time of Berling's performance and she commented to Smith about the performance upon its conclusion. From her vantage point, Ms. Galbraith was able to see most of the public area of the establishment. Her husband was in the back of the establishment near the DJ booth during most of the approximately one and a half hours that Detectives Andrews, O'Brien and Smith were in the Mermaid. At no time during the detectives' undercover operation did Galbraith, his wife, or anyone else that had been hired to work at the Mermaid do anything to discourage or stop the frequent "lap dancing" or the performances of King and Berling, notwithstanding that these activities were in violation of the Rules that Galbraith had given to each dancer and posted in the dancers' dressing room. Arrests were made as a result of the detectives' May 12, 1993, undercover operation. The action taken by the Palm Beach County Sheriff's Office in the instant case is no different than what it has done in similar cases involving other adult entertainment establishments where there is "lap dancing" or similar activity taking place. Respondent's Liability Although Simone may not have been present on the premises during either the April 7, 1993, May 6, 1993, or May 12, 1993, undercover operations, given the persistent and repeated instances of "lap dancing" and other flagrant acts of indecency engaged in by the dancers working at the Mermaid, the inference is made that Simone either fostered, condoned, or negligently overlooked these acts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department enter a final order finding Respondent liable for the violations alleged in the amended Administrative Action and penalizing Respondent therefor by revoking its alcoholic beverage license, license number 60-00429, Series 4-COP. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of January, 1994. STUART M. LERNER 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 January, 1994.
The Issue The central issue in these cases is whether the Respondents are guilty of the violations alleged; and, if so, what penalty should be imposed.
Findings Of Fact This matter deals with three licensed premises all owned or controlled by the Respondent, Myriam Grau. Ms. Grau is either the sole proprietor or the sole corporate officer and shareholder for each of the named businesses. Feelings Restaurant located on Palm Avenue in Hialeah, Florida, holds series 2 COP license no. 23-15849. Hialeah Dolphin also located on Palm Avenue in Hialeah, holds series 2 COP license no. 23-02256. Feelings Restaurant II which is located on East 4th Avenue holds series 2 COP license no. 23-15990. It is undisputed that Ms. Grau, her husband, and her mother-in-law are responsible for the day-to-day operations of the three licensed premises. The Petitioner is the state agency charged with the responsibility of regulating licensed premises which sell or dispense alcoholic beverages. Special Agent Addy Mesa, formerly employed by the Division of Alcoholic Beverages and Tobacco, conducted an undercover investigation at the Feelings located on Palm Avenue. On or about January 13, 1995, while engaged in such investigation, Special Agent Mesa went to the Hialeah Dolphin along with Detective Barbara Rivera and spoke with the Respondent, Ms. Grau. At that time and in that place, Special Agent Mesa asked for cocaine but Ms. Grau advised her that she did not have any. Ms. Grau requested that she wait as she was expecting a delivery. Special Agent Mesa waited approximately ten minutes but was unable to purchase the cocaine. After confronting Respondent regarding the delay, Ms. Grau directed Special Agent Mesa to Feelings (also on Palm Avenue) and told her to ask for Carlos or Carmen. When Special Agent Mesa arrived at Feelings and found Carlos, he advised the women to wait as he, too, was waiting on someone to come. Eventually, Special Agent Mesa observed a Latin male enter the licensed premises and confer with Carlos. At that time Carlos was standing behind the bar but took the Latin man behind a door to an area presumed to be a back room. When Carlos returned to the bar area, Special Agent Mesa purchased illegal narcotics from him. During the sales transaction, Carlos was at the bar and, in exchange for $40.00, passed two clear plastic bags to Special Agent Mesa containing a white powder substance which was later tested and proved to be cocaine. This transaction took place in the licensed premises and could have been observed by the six or seven patrons then at the bar. On another occasion, Special Agent Mesa went to the Hialeah Dolphin Restaurant with Heidi Puig. Again, as indicated above, Special Agent Mesa was working undercover. On this occasion Special Agent Mesa met a man who introduced himself as "Ricardo" and who told her he was the manager for the business. Ricardo had access to a back room in which he apparently resided and gave Special Agent Mesa a business card, a copy of which has been admitted into evidence in this cause as DABT exhibit 2. Such card contains the handwritten words "Ricardo" above the printed line denoting manager and "ask for Miriam" along the bottom of the card. The remainder of the card contains the printed information for the business. After talking with Ricardo for a short time, Special Agent Mesa purchased two packets of cocaine for $40.00. Special Agent Mesa returned to the Dolphin on still another occasion with Detective Rivera. On this visit there were approximately six or seven patrons in the bar and Ricardo approached them when they entered. After engaging in conversation for a few moments, Special Agent Mesa asked to purchase cocaine and Ricardo accommodated the undercover agent. While Special Agent Mesa waited at the bar, Ricardo went to his back room and returned with two baggies of cocaine wrapped inside a napkin. In return for the twenty dollar bills from Special Agent Mesa and Detective Rivera, the two packets containing cocaine were delivered inside the bar. Thereafter, Special Agent Mesa did not return to the premises until the search warrant was executed on February 10, 1995. All of the foregoing transactions took place while Special Agent Mesa was working in an undercover capacity and utilizing language that is common to transactions of this nature. Given the successfulness of her efforts to purchase illegal narcotics it is found that Special Agent Mesa communicated her intent to Respondent Grau, Carlos, and Ricardo in such a manner that they knew she was attempting to purchase cocaine. Carlos and Ricardo conducted themselves in a manner which gave the appearance of being employees of the licensed premises. Both men had access to the area behind the bar. Both utilized areas presumed to be private from the public. On at least one of the occasions Ricardo advised Special Agent Mesa of jobs available. The conduct of the transactions was inside the licensed premises, repeated on several occasions, and open to the view of bar patrons. Elio Olivia is a detective with the Hialeah Police Department. During January, 1995, while working in an undercover capacity, Detective Olivia was investigating illegal narcotic activities at the Feelings located on Palm Avenue in Hialeah. On or about January 12, 1995, Detective Olivia entered the licensed premises and spoke with Carlos who was behind the counter. For twenty dollars Detective Olivia purchased, and the individual Carlos sold, one packet of a white powdered substance which was tested and proved to be cocaine. Later, on January 18, 1995, Detective Olivia returned to the Palm Avenue Feelings and, again, purchased cocaine from Carlos. On this occasion Carlos went from behind the bar to an office, returned to the bar, and delivered the packet. Detective Olivia went to Feelings on a third date and repeated the process. Again, Carlos was observed behind the counter at the time of the transaction and Detective Olivia presumed him to be an employee of the premises based upon the manner in which he conducted himself. On at least one of the occasions, Detective Olivia observed another patron at the bar purchase a packet from Carlos. While the contents of the observed packet are unknown, the manner of the transaction was consistent with Detective Olivia's experience with purchasing cocaine from Carlos. Detective Olivia did not observe Respondent Grau on the licensed premises during any of the times he was there. The transactions involving the purchase of illegal narcotics took place in the licensed premises and could have been viewed by the patrons of the facility. Given the fact that Detective Olivia observed at least one such transaction himself, it is found that the actions of Carlos were open and notorious to the public. Michael Barsky is a detective employed by the Hialeah Police Department. At all times material to this matter, Detective Barsky was working undercover investigating illegal narcotics. On or about June 15, 1994, Detective Barsky went to the Feelings located on 4th Avenue. While there, he conversed with a male later known to him as Ricardo. Detective Barsky presumed Ricardo to be an employee at the business as it appeared he had the "run of the place." That is to say, Ricardo went behind the bar, went throughout the premises, and paid winnings to patrons who prevailed on a gambling machine that was located within the business. Detective Barsky went to the 4th Avenue Feelings again on October 14, 1994. On this date he met Ricardo and in exchange for twenty dollars purchased a small packet of a white powder substance which was later tested and proved to be cocaine. Although the transaction was discussed in the bar area in front of approximately five patrons, Ricardo took Detective Barsky to the mens room to make the exchange. From October 14, 1994 through December 7, 1994, Detective Barsky returned to Feelings on six occasions. For each visit he purchased cocaine from Ricardo as described above except on the later occasions the exchange took place at the bar instead of in the mens room. From the time of his first visit through December 7, 1994, Detective Barsky observed Respondent Grau on the licensed premises only once or twice. While the date of the arrest is not certain, Ricardo was arrested for illegal drug possession sometime during Detective Barsky's investigation at Feelings (4th Avenue). There came a time after Ricardo was arrested when Detective Barsky no longer observed him at the Feelings on 4th. In fact, when Detective Barsky returned to the licensed premises on January 12, 1995 (he had had a tip sales were still being made at the location), he met with an individual known as Orlando who claimed to be the new manager who could help him. As with Ricardo, Detective Barsky observed that Orlando appeared to have the run of the place. He was behind the counter, went into the DJ's booth, and was never reproached by the servers who were assisting bar patrons. Additionally, Detective Barsky observed and heard Orlando giving directions to the females who "did everything" in the kitchen area. In doing so, Orlando entered areas of the premises not available to the general public. As had occurred with Ricardo on the first buy, Orlando took Detective Barsky into the mens room and in exchange for twenty dollars the cocaine was purchased. On the next visit, on or about January 18, 1995, Detective Barsky purchased cocaine from Orlando at the bar. Orlando took a packet from his pocket and slipped it to Detective Barsky in a secretive manner. Detective Barsky returned to Feelings on several occasions thereafter. On each visit he successfully purchased cocaine from Orlando. On one occasion Orlando went to the back room before he delivered the packet to Detective Barsky. On one of the later visits, on or about January 27, 1995, Detective Barsky observed the Respondent Grau with an unknown male enter the premises and exchange money for what appeared to be drugs packaged in small zip baggies. This transaction took place in the licensed premises in view of the detective. Detective Barsky purchased cocaine at the Feelings on 4th Avenue at least twelve times for the period October 14, 1994 through February 3, 1995. On January 18, 1995, Detective Barsky went to the Dolphin and observed the male he knew as Ricardo at that licensed premises. Ricardo was fixing lights at a pool table when the detective confronted him and sought to purchase cocaine. On this occasion as in the past, Detective Barsky purchased a twenty dollar amount of a substance which was later tested and proved to be cocaine. Subsequently, Detective Barsky returned to the Dolphin and purchased cocaine from Ricardo on four additional visits. On one such visit, February 2, 1995, Detective Barsky observed Ricardo and a bar patron "do" cocaine at the bar counter. This was in plain view of bar patrons and was open and notorious. Respondent Grau knew that Ricardo had been arrested for illegal drugs prior to allowing him to reside at the Dolphin premises. Respondent Grau did not ask Ricardo to vacate the premises or to stay away from the licensed premises. At least six of the cocaine purchases occurred after Respondent Grau knew Ricardo had been arrested for drugs. Cocaine is a controlled substance the sale of which is prohibited by law.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking the licenses nos. 23-15849, 23-02256, and 23-15990. DONE AND RECOMMENDED this 30th day of June, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. 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 30th day of June, 1995. APPENDIX TO DOAH CASE NOS. 95-0703, 95-0704, and 95-0705 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1 through 19 are accepted. Paragraph 20 is clarified in the findings above as to the manner of the delivery of the cocaine (which in some instances did include a secretive manner), therefore, as drafted the paragraph is inconsistent with the total evidence presented in the case. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 1 through 6 are rejected as comments or argument regarding Petitioner's proposed findings of fact. Paragraph 7 is rejected as not supported by the weight of the credible evidence. COPIES FURNISHED: Miquel Oxamendi Senior Attorney Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Louis J. Terminello TERMINELLO & TERMINELLO, P.A. 2700 S.W. 37th Avenue Miami, Florida 33133-2728 Howard Sohn 2534 Southwest Sixth Street Miami, Florida 33135-2926 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 John J. Harris, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
