The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the notice to show cause and, if so, what disciplinary action should be imposed.
Findings Of Fact At all times material hereto, respondent, Cesar J. Reyes, held alcoholic beverage license number 23-05034, series 2-COP, for the premises known as Busy Cafeteria Bar (the "premises"), located at 4601 West Flagler Street, Miami, Dade County, Florida. In November 1993, Special Agent Joe Lopez of the Division of Alcoholic Beverages and Tobacco, together with the assistance of a confidential informant (CI), began an undercover investigation of the premises. Such investigation was predicated on information Special Agent Lopez had received from federal authorities which indicated that narcotics were being sold upon the premises. On December 1, 1993, Special Agent Lopez and the CI entered the licensed premises. While inside the premises, the CI met with respondent and purchased a small plastic package containing 1/2 gram of cocaine for $30.00. On the same occasion, Special Agent Lopez met with respondent, and he also purchased a small plastic package containing 1/2 gram of cocaine for $30.00. 1/ On December 2, 1993, Special Agent Lopez and the CI returned to the licensed premises. While inside the licensed premises, they again met with respondent and purchased a small plastic package containing 1/2 gram of cocaine for $30.00. On December 7, 1993, Special Agent Brian Weiner of the Division of Alcoholic Beverages and Tobacco served respondent with an emergency order suspending his alcoholic beverage license, and placed respondent under arrest for the sale of cocaine. Incident to such arrest, Special Agent Weiner searched respondent's person and discovered six small plastic packages, each containing 1/2 gram of cocaine, in a small box tucked under respondent's waist band.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing Counts 1 and 2 of the notice to show cause, finding respondent guilty of Counts 3, 4, 5 and 6 of the notice to show cause, and revoking respondent's alcoholic beverage license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of December 1993. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December 1993.
The Issue Whether Respondent sold alcoholic beverages to a person under the age of 21 in apparent violation of Subsection 562.11(1)(a), Florida Statutes.
Findings Of Fact Based on my observation of the witnesses, their demeanor while testifying and the entire record compiled herein, the following relevant factual findings are made. During times material, Respondent, Rasem Mohammad Awadallah, held license number 63-02202, series 2-APS authorizing the sale of alcoholic beverages at Sam's Big Apple (Sam's) which is situated at 110 Manor Drive, Bartow, Polk County, Florida. Respondent is the owner of Sam's. On February 13, 1992, law enforcement officers from the Bartow Police Department conducted an investigation of businesses, including Respondent's, that were allegedly making sales of alcoholic beverages to persons under the age of 21. The investigation was prompted by several citizen complaints alleging that Respondent and other businesses were selling alcoholic beverages to underaged persons at their licensed premises. On February 13, 1992, Lieutenant James Byrd and Patrolman Michael S. Marcum went to Sam's to investigate the complaints of alcoholic beverage sales to minors. Patrolman Marcum's date of birth is October 24, 1972. As such, he was 19 years of age on February 13, 1992. Lieutenant Byrd instructed Patrolman Marcum to enter Sam's and attempt to purchase alcoholic beverages. He was instructed that if at any time identification was requested of him, he would produce his driver's license which displayed his correct date of birth. Patrolman Marcum was further instructed that if he was asked his age by Respondent or clerks at Sam's, he would truthfully answer. Patrolman Marcum entered Sam's on February 13, 1992, retrieved a six- pack of "Milwaukee's Best Beer" from the cooler and approached the sales counter. Patrolman Marcum purchased the beer from Respondent who made the sale without asking whether he was at least 21 years of age or for identification which would show his age. The sealed cans of beer that Patrolman Marcum purchased from Respondent were clearly marked as alcoholic beverages. Upon exiting the premises, Patrolman Marcum and Lieutenant Byrd rendezvoused with Detective Mike Hamil approximately fifteen minutes thereafter. Patrolman Marcum was provided a physical description of the person from whom he had purchased the beer and that person was later identified as Respondent. At the hearing herein, Patrolman Marcum identified Respondent as the person who sold him the six-pack of beer on February 13, 1992 at Sam's. Respondent was arrested approximately one month after the February 13, 1992 date of sale. He was later tried and convicted of selling an alcoholic beverage to a person under the age of 21. The delay in arresting Respondent was based on the delay in obtaining an arrest warrant for Respondent's arrest and based on ongoing investigations by the Bartow Police Department. Detective Hamil feared that an arrest of Respondent early in the course of the investigation would alert other area vendors that the Bartow police were engaged in an investigation which would possibly dissuade any other licensed vendors predisposed to such violations. Respondent denies having sold alcoholic beverages to any minors on February 13, 1992 to include Patrolman Marcum. However, Respondent admits that he was at Sam's on that date for approximately one hour. It is more likely than not, that Respondent sold alcoholic beverages to a minor, Patrolman Marcum, on February 13, 1992 as alleged in the notice to show cause filed herein. Respondent has not been the subject of prior disciplinary action by the Department.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a Final Order finding that Respondent violated Section 562.11(1)(a), Florida Statutes and that he be ordered to pay a civil penalty of $500.00 to the Division within thirty days of the entry of the Department's Final Order and that Respondent's license number 63-02202, series 2-APS, be suspended for a period of ten days. 1/ DONE AND ENTERED this 14th day of June, 1993, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1993.
The Issue This case concerns the entitlement of the Petitioner, Price Candy Company, Inc., trading as St. James Place, to be granted a new Series 2-COP beverage license from the State of Florida, Division of Alcoholic Beverages and Tobacco.
Findings Of Fact Beginning on June 13, 1978, the Petitioner, Price Candy Company, Inc., began the process of applying for a new Series 2-COP beverage license to be issued by the State of Florida, Division of Alcoholic Beverages and Tobacco. This license was to be issued for a premises located at 117 West Duval Street, Jacksonville, Duval County, Florida. The establishment for which this license is intended is a restaurant located in a building known as the May Cohens Building. The Petitioner leases a portion of that building from May Cohens and the balance of the building which constitutes the structure of the prospective licensed area, is controlled by May Cohens. The part of the building controlled by the Petitioner as a street entrance into the dining room area of the restaurant and an entrance from the May Cohens part of the building, which is an interior entrance to the restaurant. These entrances may be seen in examining the Respondent's Exhibit No. 1 admitted into evidence, which is the Petitioner's sketch of the prospective licensed premises which was submitted to the Respondent as a part of the application. Within this diagram are several pencilled changes to the sketch which represent the current state of the building showing an extension of a wall, thereby closing off any direct access from May Cohens to the restrooms associated with Petitioner's restaurant. On May 30, 1979, the Director of the State of Florida, Division of Alcoholic Beverages and Tobacco indicated his intent to deny the application stated that the reason was "Premises to be licensed is connected to other areas over which the applicant will have no dominion or control." As authority for that statement the Director referred to Subsection 561.01(11), Florida Statutes.
Recommendation It is recommended that the Petitioner, Price Candy Company, Inc., trading as St. James Place, be granted a new Series 2-COP beverage license. DONE AND ENTERED this 19th day of December, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: James M. Bailey, Area Supervisor Price Candy Company, Inc. 117 West Duval Street Jacksonville, Florida 32204 Daniel C. Brown, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether, under the facts and circumstances of this case, Respondent is guilty of the violation alleged in the Notice To Show Cause issued October 20, 1989 by the Director of the Division of Alcoholic Beverages and Tobacco, Department of Business Regulation and filed herein.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this case, OB's Restaurant and Lounge, Inc. held a Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division) license for the premises known as OB's Restaurant and Lounge (OB's), alcoholic beverage license number 74-2421 SRX, Series 4-COP, located at 913 Highway 17, Pierson, Volusia County, Florida. Christine Shuter O'Brien, president of OB's Restaurant and Lounge, Inc. owns 100 per cent of the stock in the corporation. Ms. O'Brien has owned and operated OB's since July 1989. Camiel Long, born July 3, 1969, who was 20 years of age on October, 1989, works with law enforcement investigators of District 12 of the Division, Daytona Beach, Florida, as an Investigation Aide in determining whether licensed establishments are selling alcoholic beverage within their licensed premises to persons under the age of 21 years. On Saturday, October 7, 1989, Long met with Investigator Ron Sullivan for the purpose of Sullivan explaining the procedure used to effect underage investigation. At this time, Sullivan explained to Long that he would enter a licensed premises first and Long was to follow a few minutes later. Upon entry of the licensed premises Long was to approach the appropriate point of sale and ask to purchase an alcoholic beverage. Long was instructed to carry his own personal Florida Driver's license and to present the driver's license upon request. Long's Florida driver's license depicted him as having a mustache. The photographs taken on October 7, 1989 depicts Long as being clean shaven, without a mustache. One of the targeted licensed premises for October 7, 1989 was OB's because of a complaint received from the local police department. At approximately 9:45 p.m. on October 7, 1989, Sullivan and Long arrived at OB's parking lot and Sullivan then entered OB's, with Long following in approximately five minutes. Kevin Cox was in charge of checking identification (ID) at the door of OB's to keep out underage persons, and was in fact checking ID's at the door of OB's on Saturday night, October 7, 1989. On Saturday night, October 7, 1989, at the time Long entered OB's and purchased the beer, the bar was quite busy, some customers were playing pool and a band was playing, as was normal on Friday and Saturday night On Saturday night, October 7, 1989 there were several signs over the entrance to the bar at OB's indicating that proper identification was required and that it would be checked When Long entered OB's, Cox was checking several other persons' ID cards, and did not stop Long to check his ID as he "skirted" around him because he appeared to be about the same age as those persons Cox was checking who were in the 24-25 year-old bracket according to their ID cards. After entering OB's, Long found a seat at the bar, sat down, and ordered a Budweiser beer from Christine Shuter O'Brien who was tending bar at that time, along with Lorraine Ware. Ms. O'Brien opened a long-neck 12 ounce bottle of Budweiser beer, an alcoholic beverage, and served the beer to Long who paid Ms. O'Brien for the beer. Ms. O'Brien did not question Long's age or require any type of ID from him before selling and serving him the beer. Upon receiving the beer and his change, Long turned and handed the beer to Sullivan, and Long left the premises. Sullivan identified himself to Ms. O'Brien and advised her that he had observed her sell an alcoholic beverage to a person under the age of 21 years. Sullivan then requested that they move to area where they could speak. After moving to another area, Sullivan presented O'Brien with a Notice to Appear, in lieu of arrest. Ms. O'Brien has had no previous Beverage Law violation in any establishment that she has owned, including one in DeLand and one in Illinois. Ms. O'Brien's policy concerning the serving of alcoholic beverages is that if someone appears to be of age (21 years or older), then it is not necessary to request an ID to confirm their age. Both Kevin Cox and Lorraine Ware was aware of this policy, as well as other employees. Lorraine Ware, through experience and having taken a course taught by the Division concerning serving underage persons, is aware that it is her responsibility to avoid serving an underage person alcoholic beverage. Ware has also received instruction from Ms. O'Brien not to sell alcoholic beverages to an underage person. Long's appearance on Saturday night, October 7, 1989 and on the day of the hearing (February 13, 1990), four months later, was very similar, except for his clothing, and would cause an ordinary prudent person to question whether he was 21 years of age or older. Long's appearance should have caused both Cox and Ms. O'Brien to require him to confirm his age by some type of identification. O'Brien's failure to require confirmation of Long's age before selling him the beer on Saturday night, October 7, 1989 showed a lack of due diligence on her part, notwithstanding her presumption that Cox had checked Long's ID at the door, or the fact that she had several signs posted concerning the checking of ID's.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the mitigating circumstances surrounding the sale, it is, therefore, RECOMMENDED that the Petitioner enter a Final Order finding Respondent guilty of a violation of Section 562.011(1)(a), Florida Statutes, and for such violation assess a civil penalty of $500.00. DONE AND ENTERED this 21st day of March, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 21st day of March, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6962 Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-2. Adopted in Findings of Fact 1 and 3, respectively. Adopted in Findings of Fact 4 and 5. Adopted in Findings of Fact 6 and 7. 5.-9 Adopted in Findings of Fact 8, 12, 13, 14 and 12, respectively. 10. Adopted in Findings of Fact 2, 15. 11.-15. Adopted in Findings of Fact 16, 8, 18, 9 and 18, respectively. 16 Rejected as not being supported by substantial competent evidence in the record. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-3. Covered in Preliminary Statement. Covered in beginning paragraphs. Covered in Preliminary Statement and in Findings of Fact 5. Adopted in Findings of Fact 5, as modified. Adopted in Findings of Fact 4 and 5, as modified. Adopted in Findings of Fact 7, 12 and 14, as modified, except for the last sentence which was rejected because O'Brien was not arrested but given Notice To Appear in lieu of an arrest. 9.-14. Rejected as being more of a restatement of testimony than proposed findings of fact, but if stated as proposed findings of fact then adopted in Findings of Fact 8, 9, 10, 12 and 17. COPIES FURNISHED: Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Harry Hooper, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399- Joseph A. Scarlett, Esquire 208 West Howry Avenue Deland, Florida 32720
Findings Of Fact At all times material to the instant case, Respondent was the holder of beverage license No. 54-279-S, Series 6COPS. The license was obtained by the Respondent by transfer in September, 1977. The licensed premises is located at the Key Wester Inn, 975 South Roosevelt Boulevard, Key West, Florida. The Key Wester Inn and the licensed premises are owned and operated by Mr. Mel Heifetz, the Respondent herein. On September 10, 1983, Beverage Officers Frank Oliva and Leonard DelMonte went to the licensed premises to investigate a complaint of drug sales taking place inside the licensed premises. The officers entered the lounge at approximately 7:00 p.m. The licensed premises are called the Inner Circle Lounge and consists of three areas. The main portion of the lounge is a large room with a bar along the south wall and a bandstand and dance floor in the northwest corner. The remainder of this area is filled with tables and chairs. To the east of the main bar is a large room which opens onto the main bar area through two large openings. This area contains tables and chairs. To the west of the main bar area is a deck and patio area called the pool bar area. When the officers arrived at the licensed premises on September 10, they sat on two bar stools at the northwest end of the pool bar. The two officers engaged a white female waitress named Lori Hart in conversation. Eventually the conversation led to a discussion of drugs and Officer Oliva asked if she could sell him some quaaludes. She said that she could not but that she could sell them cocaine if they would return at 10:00 or 10:30 p.m. that evening. She also said that the price would be between $80 and $100 and that she would have to be turned on also. This meant she would inhale some of the cocaine she sold them. The officers agreed and then left. The officers had never met Lori Hart before and no one at the bar had vouched for them or introduced them to her. At approximately 10:00 p.m., the officers returned to the lounge and sat on two bar stools at the west end of the pool bar. Lori Hart walked up and asked if they still wanted the cocaine and the officers responded "yes." She said the price would be $80. She then asked a bartender named George to tend bar for her. She picked up her purse and walked into the interior bar area and then returned and walked to the area of the bathrooms near the pool. The two officers followed her to the bathroom area. When they reached the bathroom area, the door to the ladies' room was closed. About five to ten minutes later the manager of the lounge, George Font, came to the bathroom area and went into the men's room to wash his hands. He left and a few minutes later came back and knocked on the door to the ladies' room and said "Lori you have customers." After George Font left, Lori Hart came out of the bathroom, and exchanged a packet of cocaine for $80 cash from Officer Oliva. On this particular evening, Pedro Corpion, an off-duty police officer working as a security guard at the licensed premises, was seen in the pool bar area at various times. The location where the exchange took place is a hallway adjacent to the pool area restrooms and is not visible from anywhere in the bar. On September 16, 1983, Officers Oliva and DelMonte returned to the licensed premises. They were accompanied by Faye Francy of the Monroe County Sheriff's Department. They sat at a table next to the dance floor and adjacent to the north wall of the interior lounge. While seated at the table, a waitress named Linda Carteret took their order for drinks and Officer Oliva asked if she could sell them 2 grams of cocaine. She said she would see what she could do. She later returned to the table and stated she could only get 1 1/2 grams. About a half hour later, she returned to the table again and stated that she did not have quite 1 1/2 grams so the price would be $110 rather than $120 as originally stated. Officer Oliva said o.k. and told her that the money was under a napkin on the table. She crouched between his chair and the chair where Faye Francy, who was dancing, had been seated. She placed a small packet of cocaine wrapped in a one dollar bill under Officer Oliva's left leg. When Linda Carteret crouched at the table and transferred the cocaine, she had her back to the bar area. These actions were being watched by Whitney Russel Papy, an investigator for the state attorney's office, from a table nearer the bar and he could not tell that an exchange or buy had taken place until Officer Oliva, by prearranged signal, got up and left. Officers Oliva and DelMonte had never met Linda Carteret before and had not been introduced to her before asking to purchase cocaine. On the evening of September 15, 1983, Officers DelMonte and Oliva returned to the licensed premises. They sat at the west end of the interior bar and ordered drinks. Lori Hart was working behind the bar and at approximately 9:30 a.m., Officer DelMonte and Oliva returned to the licensed premises. They sat at the west end of the interior bar and ordered drinks. Lori Hart was working behind the bar and at approximately 9:30 a.m., Officer DelMonte asked Lori Hart to sell him a gram of cocaine. She said she could get it and a short while later, she returned to where the officers were seated and placed a bulging matchbook on the bar in front of Officer DelMonte. Inside the matchbook was a small plastic baggie containing cocaine. Approximately five minutes later, Officer DelMonte ordered a drink and gave Lori Hart $100. She walked to the register, rang up the drink, and returned and handed him $17.00 in change. The price of the cocaine was $80.00 and the drink cost $3.00. Officer DelMonte placed the matchbook and cocaine in his pocket. On the evening of September 16, Paul Carr, the manager of the Key Wester Inn, came into the lounge several times. He walked in, looked around the lounge, remained for a few minutes and then left. The band was playing in the lounge this particular evening. On September 17, 1983, Officers DelMonte and Oliva were again in the licensed premises for the purpose of attempting to purchase drugs. They sat at the east end of the interior bar. Officer DelMonte placed four (4) $20.00 bills in a matchbook and placed it on the bar in front of him. A few minutes later, Lori Hart, who was behind the bar, saw the matchbook and said she would get the stuff. Some of the numbers of one of the twenty dollar bills were showing. Lori Hart asked if there was $80.00 in the matchbook and Officer DelMonte responded "yes." She took the matchbook and a short while later placed a napkin in front of Officer DelMonte. Inside the folded napkin was a small plastic baggie containing cocaine. Officer DelMonte placed the cocaine and napkin in his pocket. On this particular evening, off-duty Police Officer Pedro Corbione was working inside the lounge and was out of uniform. He passed the bar area where the officers were seated while the matchbook containing the money was on the bar. However, there was no evidence that Officer Corbione saw the matchbook. The band was playing in the lounge this evening. Beverage Officers DelMonte and Oliva returned to the licensed premises on September 22, 1983, at approximately 9:15 p.m. They were joined a few minutes later by Deputy Francy of the Monroe County Sheriff's Department. The three officers sat at a table just inside the large sitting area to the east of the interior bar area. The table where they were seated was partially obscured from vision of the bar area by a short wall that extended to the edge of the large entrance way. While seated at the table, Officer Oliva asked Linda Carteret if they could purchase some cocaine. She was on duty as a waitress. A short time later, Lori Hart walked over and asked if they were still interested in a gram of cocaine. Officer Oliva said yes and she asked for $80.00. Officer Oliva told her he didn't think he should be so open and she agreed. She told him to give the $80.00 to Linda who came over a few minutes later and picked up a napkin with the $80.00 beneath it. After taking the money, Linda Carteret returned with a foil packet under a napkin and placed it on the table. The foil packet contained cocaine. Both women were on duty as cocktail waitresses when this transaction took place. There was nothing suspicious about the actions of the officers or Lori Hart and Linda Carteret during this transaction. The transfer took only a few seconds and the foil packet was not visible beneath the napkin. This was a very secretive transaction and the exchange itself was not observed by Deputy Faye Francy who was seated at the table with Officers Oliva and DelMonte. The area where the officers were seated was dimly lit. The band was playing in the lounge this evening. On September 28, 1983, Officers Oliva and DelMonte returned to the licensed premises. They entered the lounge at approximately 7:00 p.m. and sat at the same table they had sat at on the evening of September 22. They had first entered the interior bar area and sat at the bar, but after they were joined by Linda Carteret, they went to the table. Officer Oliva asked Linda Carteret to sell them some cocaine and she responded that she had heard rumors that they were police officers. Officer Oliva convinced her that they were not police officers and she then agreed to sell them 1 gram of cocaine for $80.00. She went to the bathroom area and when she returned she placed her hands over Officer Oliva's hands and dropped the plastic baggie containing cocaine into his hands. He then handed her the $80.00. The entire exchange took about 5 seconds. While this transaction took place, the bar manager, Don Crawford, was seated at the east end of the interior bar with his back to the table where the officers and Linda Carteret were seated. This particular evening, Linda Carteret was not working at the lounge. No indication of a transaction was observed by Harry Sawyer, an investigator with the state attorney's office. Harry Sawyer was in the lounge on September 28 as a backup to Officers Oliva and DelMonte. A band was playing in the lounge on this evening. Lori Hart had previously worked at the Inner Circle Lounge in 1982. She terminated when she went home to visit her family and was rehired in January, 1983. There were no problems with her work in 1982. However, in April, 1982, an administrative complaint was made against the Respondent's license charging that Lori Hart had failed to check the identification of a minor and had sold the minor a drink. She was not terminated at that time because she was needed as a witness in the administrative proceedings. Lori Hart resigned some time prior to September 28, 1983, because she was changed to a different shift and location in the lounge. Lori Hart was initially hired as a cocktail waitress and was transferred later to bartender. Prior to being hired she was interviewed by the bar manager and by the manager of the Key Wester Inn, who oversees the entire property where the Inner Lounge is located. She was required to obtain and provide the management with an ID card which is obtained from the Key West Police Department. This ID is required for persons working in Key West and in order to obtain an ID, an application with certain background information must be given and a photograph is taken and placed on the ID card. Lori Hart was also required to fill out an employment application for the lounge. On this application, she was required to give background information and references and these were checked by the manager. At the time she was hired in January, 1983, Lori Hart was required to sign a form which states: As an employee of the Key Wester Inn I understand that it is unlawful to drink alcohol or take any form of drugs that are not prescribed by a doctor during the performance of my shift of work. And further I realize this would be grounds for dismissal. Each employee hired was required to sign such a form. The Inner Circle Lounge and Key Wester Inn had a policy against any drugs on the premises and this policy was explained to all employees when they were hired and was repeated on a continual basis. Employees caught with drugs or alcohol while on duty were terminated under this policy. Linda Carteret was employed in September, 1983. She was hired the same day she applied because the lounge was short one cocktail waitress. She was interviewed by the bar manager who requested that the manager, Paul Carr, allow him to hire her immediately. Mr. Carr approved the hiring but did not interview her. Linda Carteret was also required to provide the lounge with the ID card obtained from the Key West Police Department and was informed of the policy of drugs and alcohol while on duty. The Key Wester Inn is owned by Respondent and is managed by Paul Carr, the resident manager. Mr. Carr has 2 years experience in the hotel, restaurant and lounge business. Prior to September 12, 1983, George Font was manager of the lounge. Mr. Font had been asked to resign because of poor performance and it was agreed that September 12, 1983, would be his last day. After Mr. Font left, Don Crawford, originally hired as a cook was promoted to bar manager. He was given no authority or real responsibility because he was considered to be in a training status. Paul Carr, the resident manager actually took over management of the lounge begining September 12. The evidence did not establish that Mr. Font or Mr. Crawford was aware of the drug transactions that occurred in September, 1983. Mr. Paul Carr, the resident manager, had no knowledge of any drug transactions or drug problems in the lounge. The bar manager was in the lounge each night full-time. Paul Carr was at the lounge when it opened and closed and visited the lounge several times each evening at random times. Prior to July or August, Mr. Pedro Carbione, an off-duty Key West Police Officer worked as security officer at the entrance to the lounge. He checked ID's and watched the outside area. In July or August, Officer Corbione, on Paul Carr's recommendation, moved inside the lounge to work security. When he moved inside the lounge, he no longer worked in uniform. The evidence failed to establish that Officer Carbione was aware of any drug transactions taking place in the licensed premises. The Respondent has held the beverage license in question since 1977. Since that time, there have been no prior charges involving drugs. The only prior charge against the license involved selling to minors. The Respondent and his staff have cooperated with local authorities in prior drug investigations and the licensed premises enjoy a reputation in the community as a nice, decent place to go and dance. The Inner Circle Lounge is frequented primarily by business people, military officers, and local residents including law enforcement officers. The patrons are primarily thirty to fifty years of age. The lounge does not have a reputation in the community as a place where drugs can be sold or used or as a place frequented by people who use drugs. At no time prior to service of the Emergency Suspension Order was Respondent or his staff informed of a drug problem in the Inner Circle Lounge by the Division or local authorities. Lori Hart and Linda Carteret made several statements during the sales and during interrogation after their arrest which indicated some knowledge of the drug sales on the part of George Font and Don Crawford. This evidence was considered by the hearing officer and considered to be of no probative value in light of the total lack of any direct evidence which would show knowledge on the part of those individuals and because of the contradictions between such statements and the very secretive manner in which all the sales were made.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED That the Respondent be found NOT GUILTY of the violations charged in the Notice to Show Cause and that the charges be dismissed and the license immediately restored. DONE and ENTERED this 15th day of November 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1983. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida Charles L. Curtis, Esquire 1177 S.E. Third Avenue Ft. Lauderdale, Florida 33316 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact With regard to Count I of Division of Beverage Case No. 3-75-53A, the Hearing Officer enters the following findings of fact: On or about May 26, 1975, Terry Darlene Harris, a female then 16 years of age, worked at the Four Winds bar as a topless dancer. Eugene Bernard, an officer, agent, servant or employee of the Respondent, entered into an agreement with Terry Darlene Harris, on or about May 26, 1975, whereby Harris agreed to perform as a topless dancer in the Four Winds bar and, in return, would pay Respondent $5.00 a night for the opportunity of dancing. Harris received remuneration for her dancing in the form of tips from patrons of the bar. There was no evidence that Harris received any wages or other compensation from the Respondent. As part of her agreement with Eugene Bernard the only requirements placed on Harris were that she could not touch the patrons, nor be touched by them, and that she could not solicit drinks. The only evidence presented showed that Harris could dance when she wanted, and as often as she wished, and did not have to dance at all. At the time Terry Darlene Harris entered into the agreement with Eugene Bernard, Harris's older sister worked at the Four Winds bar as a bartender, and upon being questioned by Bernard as to Harris's age, Harris's sister replied that Harris was 17 years old. Neither Eugene Bernard nor any other agent, servant or employee of the Respondent involved in the agreement with Terry Darlene Harris, requested from Harris any identification with regard to her age. Harris told Bernard that she was 17 and soon would be 18 years old. With regard to Count II of Division of Beverage Case No. 3-75-53A the Hearing Officer enters the following findings of fact: On the night of June 3, 1975, Jada Washington was dressed as a topless dancer and performed as a topless dancer in the Four Winds bar, as she had on previous nights. On the night of June 3, 1975, Robin Michael Smith and Kenneth Roach, a police officer, entered the Four Winds bar. Roach's duty assignment as a policeman for that evening was the Four Winds bar, because Smith had recently informed the police that prostitution might be occurring in the bar. Upon entering the bar and ordering drinks, a woman came over to Smith and Roach and spoke to Smith. The woman was Jada Washington. Smith and Washington went to another table and conversed for several minutes. Smith then motioned Roach to join them, which he did. Washington was dressed in high boots, a shawl and had a brief dance costume on. Washington asked Roach if he wanted another drink and he said, "Yes", and gave her $5.00 which she put in her boot. She did not bring a drink. Later, she asked Roach and Smith if they wanted drinks and they said, "Yes". Roach gave Washington $10.00 and Smith gave Washington $20.00, but did not receive any drinks in return, nor did they get their money back. A few minutes later another woman brought drinks to Roach and Smith, who paid that woman for them. Washington got up and temporarily left Roach and Smith. Upon rejoining them she sat between them. She then removed Smith's penis from his trousers and began fondling it and also reached over and fondled Roach's penis through his trousers. Washington then went outside the bar, where Roach arrested her. According to Eugene Bernard's testimony, he fired her because of the arrest. Eugene Bernard, an officer, agent, servant or employee of the Respondent, saw Robi Michael Smith at a theatre after the events on June 3, 1975, but prior to the date of the hearing, and after asking Smith if his memory was bad because he had been shot in the head (there was testimony that Smith was seriously wounded in the head while with the United States Army in the Republic of Viet Nam) suggested that Smith had best forget certain things pertaining to the events of June 3, 1975. On June 3, 1975, Jada Washington was an agent, servant or employee of the Respondent, working at the Four Winds bar. With regard to Counts I and II of Division of Beverage Case No. 3-75- 64A, the Hearing Officer enters the following findings of fact: On September 5, 1975, Catherine Venner, also known as "Jody", and Myra Kathryn Watkins, were working as topless dancers at the Four Winds bar. While so working, they kept their purses behind the bar. On September 5, 1975, three Beverage Officers, Reeves, Sterling and Boyd, along with a civilian named Ronald Keith, went into the Four Winds bar and ordered drinks. After the four men were seated, Catherine Venner, came up to them and offered to dance for them which offer they accepted. After dancing for them she asked the men if they would buy her a drink, which they did. Beverage Officer George Sterling paid for the drink. Later, Catherine Venner asked if they would buy her another drink, which they did, Sterling again paying. While the four men were seated and after Catherine Venner had initially come up and begun to dance for then, Myra Kathryn Watkins, joined them and also danced for them. She also asked if the men would buy her a drink, which they did, with Sterling paying. Watkins also later asked for and received a second drink which Sterling paid for. With regard to Division of Beverage Case No. 3-75-53A, Counts I and II and Division of Beverage Case No. 3-75-64A, Counts I and II, the Respondent, G & B of Jacksonville, Inc., d/b/a Four Winds, is the holder of Beverage License No. 26-1235,4-COP. The Four Winds bar is included in the licensed premises.
The Issue This case concerns the issue of whether the Respondent's beverage license should be suspended, revoked, or otherwise disciplined for maintaining a licensed premises where illegal drugs are sold and solicitations for prostitution take place. At the formal hearing, the Petitioner called as witnesses Carol Houston, Michael Collins, Chester L. Copeland, Vincent Rodriguez and John T. Allen. Petitioner offered and had admitted into evidence six exhibits. Respondent offered and had admitted into evidence one exhibit. Mr. Samuel Williams testified on behalf of Respondent.
Findings Of Fact The Respondent holds and at all times material to this action held beverage license No. 39-684, Series 4-COP. The licensed premises under that license is located at 2801 Nebraska Avenue, Tampa, Florida. Mr. Samuel Williams is president of the Respondent, Skylight Corporation, and owns 60 percent of the stock of that corporation. On the evening of July 27, 1983, Beverage Officer Carol Houston went to the licensed premises, The Blue Room Lounge, to conduct an undercover investigation. Upon entering the lounge Officer Houston took a seat at the bar and ordered a drink. After the shift change, Officer Houston talked to Brenda Brock, the bartender on duty. Officer Houston told Ms. Brock she liked to get high and asked if there was anyone in the bar from whom she could buy "reefer". Reefer is a street or slang term for marijuana or cannabis. Brenda Brock told Officer Houston that the person who usually sells reefer wasn't in the lounge at that time. Ms. Brock also related that she was high herself and had smoked a joint before coming on duty. When Officer Houston had entered the bar, Officer Michael Collins of the Tampa Police Department was already present in the lounge. Officer Collins, also working undercover, asked Brenda Brock where he would purchase some marijuana. When he asked Ms. Brock this question, she pointed out a black male named Chunky and said that he sold marijuana. Officer Collins then asked Brenda Brock to get Chunky for him and she did. The young male named Chunky approached Officer Collins and said he didn't have any marijuana but would have some later. At some time later in the evening, a young black male named Ace entered the lounge and Brenda Brock pointed to him and said to Officer Collins "that's him." Ace walked over to Officer Collins and asked if he was the guy looking for some marijuana. Officer Collins told him that he was but that he had promised to buy from someone else. Ace then asked Brenda Brock to verify to Officer Collins that he had been sent by Chunky and Brenda Brock said that he had in fact been sent by Chunky. As Ace had walked up to Officer Collins, he had three plastic bags of marijuana (cannabis) in his hands. He sold one of these bags to Officer Collins. Ace then sold a second bag of marijuana to a woman named Celeste who was sitting next to Officer Collins. Celeste was the bartender who had been relieved by Brenda Brock. Celeste purchased a $5 bag of marijuana from Ace and the exchange took place in the open and was observed by Officer Collins. After making the sales to Officer Collins and to Celeste, Ace approached Beverage Officer Houston who was still seated at the bar in a different area than Officer Collins and Celeste. He asked Officer Houston if she wanted to purchase some marijuana. She said yes and further stated that she wanted a $5 bag. He handed her a plastic bag containing marijuana and Officer Houston laid it on the bar in the open. Brenda Brock walked over and told her to put the bag up. Officer Houston then placed the bag of marijuana in her purse. Officer Houston then asked Brenda Brock if she had any papers she could use to roll a "joint". A joint is a slang term or street term referring to a marijuana cigarette. Brenda Brock said she did not have any papers. The purchase by Officer Houston of the marijuana took place in the open and was observed by Officer Collins from a different area of the bar. Later in the evening of July 27, 1983 two white females came into the lounge. Brenda Brock pointed to them and said those two ugly bitches called themselves prostitutes. At the time that the purchases of marijuana were made by Officer Collins, Celeste and Officer Houston, Brenda Brock was on duty as bartender and made no effort to stop the transactions. Mr. Samuel Williams had been in the lounge earlier in the evening, but was not present in the lounge when the marijuana transactions took place. On July 28, 1983, Officer Houston returned to the licensed premises approximately 7:00 p.m. When she arrived Samuel Williams was present in the lounge. Mr. Williams was talking with two men seated at the bar and was overheard by Officer Houston to say that before he would have those two prostitutes on the phone all night, he would have it taken out. Brenda Brock was the bartender on duty that evening and Officer Houston asked her if Ace was around. Ms. Brock replied that no one was around who had any reefer. Officer Houston left the lounge approximately 8:30 p.m. and returned at approximately 11:30 p.m. Upon entering, she ordered a drink from Brenda Brock and asked Ms. Brock if Ace had been back in because she wanted to get some reefer now. Ms. Brock replied that he was in the lounge and that she would get him for her. Shortly thereafter, Ace came over and asked Officer Houston what she wanted. She told him she wanted some reefer. Ace then walked away and shortly returned with a plastic bag containing marijuana. Officer Houston handed Ace a $20 bill and because Ace indicated he had no change, Officer Houston handed the $20 bill to Brenda Brock who gave her two $5 bills and one $10 bill as change. Officer Houston then handed a $5 bill to Ace as payment for the bag of marijuana. Also on the evening of July 28, 1983, while Officer Houston was seated at the bar, Brenda Brock told her a gentleman wanted to speak to her. The gentleman was Officer Collins, also working undercover. Officer Houston walked over and spoke to him briefly and the two of them returned to where Officer Houston had been seated in front of the cash register. There they discussed the price of a "date". A date is a common palance or street term for a sexual encounter for money or prostitution. A "date" is also referred to as a "trick". After agreeing upon a price, Officer Houston handed her purse and drink to Brenda Brock and asked Ms. Brock to hold them while she went outside to do a trick. Brenda accepted the purse and drink and Officer Houston left the bar with Officer Collins. Approximately 20 minutes later, Officer Houston returned and Brenda Brock gave her back her purse and her drink. At no time did Brenda Brock object to or inquire about Officer Houston's activities. On July 30, 1983, Beverage Officer Houston returned to The Blue Room Lounge at approximately 5:30 p.m. She entered the lounge and took a seat at the bar and ordered a drink from Brenda Brock who was on duty as bartender. While she was seated at the bar a young black female came up and asked her if she wanted to buy some reefer. Officer Houston had seen this young woman in the bar previously. She told her she did not want to buy any marijuana and after the young woman left she asked Brenda Brock who the young woman was. Brenda Brock said she was Ace's sister and in response to Officer Houston's questions, indicated that it was alright to buy reefer from her. Later that evening Ace came in and asked Officer Houston if she wanted to buy some marijuana. She told him that she had met his sister and Ace then called the young black female over and introduced her to Officer Houston as his sister. Officer Houston told Ace that she wanted to buy a $5 bag of marijuana. Ace then went over to his sister and brought back a clear plastic bag of marijuana. Officer Houston handed him a $20 bill and he indicated he did not have change. She then obtained change for the $20 bill from Brenda Brock and handed $5 of the change to Ace. Brenda Brock was standing right in front of her at the bar when she handed Ace the $5. In the early morning hours of July 30, 1983, just after midnight, Beverage Officer Hamilton entered the The Blue Room Lounge. He came over and talked with Officer Houston about a "date". While they haggled over a price Brenda Brock was seated directly across the bar from Beverage Officer Houston. After agreeing upon a price for the date, Officer Houston handed her purse to Brenda Brock and asked her to hold it while she did this trick. Brenda Brock took the purse and agreed to hold it. Beverage Officer Houston then left the lounge with Officer Hamilton. A few minutes later Beverage Officer Houston returned to the bar and Brenda Brock gave her her purse and put the drink which she had been drinking back on the bar. On August 1, 1983, Officer Houston returned to the licensed premises at approximately 9:30 p.m. She took the same seat near the cash register where she had sat on the previous evenings. Ace was present in the lounge. Officer Houston asked Brenda Brock to ask Ace to bring her a dime bag of marijuana. (A dime bag is a $10 bag. Brenda Brock went over to Ace and Ace then approached Officer Houston and asked her how much she wanted. At that time Officer Houston asked him if he could sell her some cocaine. He said he didn't have any but would have some later. Officer Houston then purchased two bags of marijuana from Ace for which she paid him $10. She handed him a $20 bill and he gave her $10 in change and when this exchange took place, Brenda Brock was in the area nearby on the other side of the bar. Officer Collins also went to the licensed premises on August 1, 1983 at approximately 10:55 p.m. After entering the lounge he told the barmaid, Brenda Brock, that he wanted to buy some good marijuana. She signaled to Ace and Ace came over to her. She whispered to Ace. Ace had walked up with a bag of marijuana already in his hand and after speaking with Brenda Brock he walked over and sold the bag of marijuana to Officer Collins for $5. Brenda Brock never objected to discussions regarding drugs or refused to get involved. There were no signs in the bar saying "No Drugs, No Loitering, No Prostitution", or signs with rules of management. On the evening of August 1, 1983, Officer Chester L. Copeland of the Tampa Police Department was also in the licensed premises in an undercover capacity. While standing at the bar Officer Copeland talked with Brenda Brock and asked her if Carol Houston was "dating". Brenda Brock said she didn't know. Ms. Brock then walked over and whispered something to Carol Houston and then returned to where Officer Copeland was standing and informed him that Carol was "dating". Officer Copeland then went over to Officer Houston and conversed with her about the price of a date. Brenda Brock was standing nearby during this conversation and made no objection to the discussion. After agreeing on a price Officer Houston handed her purse to Brenda Brock and left the lounge with Officer Copeland. Officer Collins also present in the lounge, observed Officer Houston and Officer Copeland leave the lounge together. Prior to this occasion Officer Collins had asked Brenda Brock if Officer Houston dated. Ms. Brock had indicated she didn't know and he had told her to go ask. She did go ask Officer Houston and came back and informed Officer Collins that she did date. Officer Collins then asked Ms. Brock the price of a date and she said she didn't know. Officer Collins asked her to go ask. Ms. Brock walked over and spoke with Officer Houston and came back and said the price was $50. On this particular evening of August 1, 1983, after he observed Officer Houston and Officer Copeland leave the bar, Officer Collins asked Brenda Brock if Officer Houston was coming back. Ms. Brock said she didn't know. Officer Collins then asked her if Carol (Officer Houston) was out on a date and Brenda Brock replied that she thought so. On each of the occasions that Officer Collins discussed prostitution with Brenda Brock he instituted the conversation, but Ms. Brock freely discussed it and made no objection to the discussions. Shortly after she had left with Officer Copeland, Carol Houston returned to the licensed premises. Officer Collins then approached her and talked about a "date". After a short discussion he and Officer Houston left the bar together. On August 3, 1983, Officer Houston again returned to the licensed premises at approximately 10:30 p.m. She took a seat at the bar directly in front of where Brenda Brock was working as bartender. Seated near her at the bar was a latin male who kept asking her to come over. After she had been there a short time, Brenda Brock came over to Officer Houston and said that the latin male wanted to know how much she charged for a date. Officer Houston did not respond and Brenda Brock shouted to the latin male $100. A short time later Brenda Brock came back over to Officer Houston and said that the latin male said he had some cocaine. Officer Houston then told the latin male in a loud voice that he better also have lots of money. That same evening Brenda Brock also told Officer Houston that another male, Officer Collins, wanted a date and had some cocaine. On the evening of August 3, 1983, Officer Copeland also entered the licensed premises. While seated at the bar, Officer Copeland met the young man named Ace. Ace came over and asked if he wanted to buy a $5 bag of reefer. He indicated that he did and gave Ace $5, and Ace handed him a plastic baggie of marijuana. On August 9, 1983, Officer Houston entered the licensed premises approximately 10:30 p.m. She took a seat at the bar, ordered a drink, and asked Brenda Brock, the bartender on duty, if Ace was around. Brenda Brock indicated that he was over at the Pac-Man machine but he had left the lounge. Later Ace came in and Brenda Brock said "there he is" to Officer Houston. Ace came over to Officer Houston and said he had some cocaine and asked if she still wanted to buy some. She asked now how much it would cost. Ace indicated he had "nickel" ($5) pieces. Ace stated that it was back at his room and he left and then returned with a small foil pack. Officer Houston gave Ace $5 and he handed her the small foil pack. The small foil pack contained cocaine, a controlled substance under Section 893.03, Florida Statutes. That same evening Officer Houston observed two black males rolling some type of cigarette. She observed a plastic bag containing material similar to marijuana. She observed Brenda Brock obtain some rolling papers from behind the bar and hand them to the two males. On August 10, 1983, Officer Houston entered the licensed premises approximately 10:00 p.m. Ace was not in the lounge when she arrived, but approximately 10:15 p.m. Ace entered the lounge and came over and asked if she wanted to buy some "coke". "Coke" is a slang or street term for cocaine. She said she would like to buy some and he said he would have it later. At approximately 11:30 p.m., Ace came over to Officer Houston and stated that he had coke. Officer Houston told him that she wanted two hits and she then bought two foil packs from Ace. Officer Houston gave Ace a $20 bill but he had no change. She then handed the $20 bill to Brenda Brock who gave her change. She paid $10 for the two foil packs which contained cocaine. That same evening a black male was seated at the bar smoking a marijuana cigarette. Brenda Brock who was the bartender on duty stated "Do I smell dope?" She then looked at the male smoking the marijuana cigarette, but made no effort to stop him. On August 11, 1983, Officer Houston was again on the licensed premises. While seated at the bar, Officer Houston observed a white female smoking what appeared to be a marijuana cigarette Brenda Brock came over to Officer Houston and said that the white female had just gotten some reefer and wanted to know if she wanted some. Officer Houston told her that she did not. Mr. Samuel Williams the president of the Respondent corporation was the manager and owner of the licensed premises. During the time of the charges in this case, Mr. Williams would open the bar in the mornings and remain at the bar all day until the shift change at approximately 7:00 or 7:30 p.m. He was not present in the bar when the various transactions took place and was generally not present in the bar in the evening. A Mr. Raifield had been hired by him to manage the bar at night. However, Mr. Raifield had been terminated shortly before the transactions which are the subject of this case. Brenda Brock had become a full-time bartender on July 26, 1983. Prior to that time she had worked part-time and Mr. Williams had no indication that she used drugs or allowed other people to use drugs or solicit for prostitution on the licensed premises. At no time was Mr. Williams aware that Brenda Brock was permitting drug transactions and solicitations for prostitution to take place in the licensed premises. There is a substantial prostitution problem in the Nebraska Avenue area where the licensed premises is located. Mr. Williams has been active in civic attempts to eliminate the prostitution from this area. Within a year of the charges which are the subject of this case, Mr. Williams' life was threatened by a pimp operating along Nebraska Avenue and the tires and convertible top of his car were slashed. One of the reasons that Mr. Williams was not in the lounge in the evening was because he had been advised by the police that it would be safer for him to not be in the lounge in the evenings. This occurred following the threat on his life. Mr. Williams had no policy of random visits or inspections to the lounge in the evenings. There have been no prior complaints or charges brought against the Respondent's license.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered finding the Respondent in violation of Section 561.29, Florida Statutes, and imposing a civil penalty of 1,000 and suspending Respondent's beverage license for a period of sixty (60) days. DONE and RECOMMENDED this 1st day of September, 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 1st day of September, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Samuel Williams 3513 Rivergrove Drive Tampa, Florida Mr. Howard M. Rasmussen Director of the Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the stipulations of the parties, the documentary evidence presented and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent, Ceola Virginia Cutliff is the holder of Alcoholic Beverage License No. 23-06844, Series 2-COP, for a licensed premises known as Club Night Shift, located at 6704 N.W. 18th Avenue, Miami, Dade County, Florida. On or about September 18, 1987, Division of Alcoholic Beverages and Tobacco (DABT) Investigators R. Campbell, R. Thompson and C. Houston entered the licensed premises as part of an ongoing narcotics task force investigation. An individual named "Frances" was on duty at the bar. The investigators observed Frances sell what appeared to be narcotics to several patrons on the licensed premises. At approximately 7:50 p.m., Investigator Houston approached Frances and asked to purchase narcotics. Frances and Investigator Houston then went to the rear of the bar where Frances sold 2 pieces of "crack" cocaine to Investigator Houston for $10.00. Approximately fifteen minutes later, Investigator Campbell asked Frances if he could purchase narcotics. Frances presented a piece of rock cocaine which Investigator Campbell purchased for $5.00. This transaction took place in plain view of other individuals in the licensed premises. Frances, upon making a sale, would take the money and give it to a black male called "Spider" a/k/a Arthur Dorsey. Spider would then retain the money. On September 19, 1987, Investigators Houston and Thompson again entered the licensed premises known as Club Night Shift. On duty that night, was a black female known as "Josephine". Spider was also on the licensed premises positioned in the D.J.'s booth, apparently trying to fix a speaker. Houston and Thompson had observed a black male, named "Gary", exchanging an unknown substance for money with various individuals, immediately outside the licensed premises. Gary, upon receiving money in exchange for the unknown substance, would go into the licensed premises and hand the money to Spider. Later that evening, Investigator Houston noticed that Spider had a brown paper bag in his hand. Gary and Spider proceeded to the bathroom on the licensed premises. After exiting the bathroom, Gary left the premises and Spider went behind the bar and began counting a large amount of money onto the counter of the bar. Spider placed the money in his back pocket. Investigator Thompson then inquired whether Spider could sell him some crack cocaine. Spider acknowledged that he could and proceeded with Thompson to the rear of the bar, where Spider sold Thompson 20 pieces of rock cocaine for $100.00. On September 22, 1987, Investigators Houston and Thompson again entered the licensed premises known as Club Night Shift. Bartender Josephine-was on duty at that time along with another black female known as "Niecey". When the investigators inquired as to the whereabouts of Spider, Niecey replied that "he went home to cook up the stuff because they were very low on supply." Niecey reiterated the above statement on numerous occasions when individuals would enter the bar searching for Spider. At approximately 10:30 p.m., Spider appeared on the licensed premises with a brown paper bag in his possession. Patrons that had been waiting outside the premises came inside and Niecey locked the doors to the front and rear exits of the bar. Spider went to the D.J.'s booth and pbured the contents of the paper bag onto the counter inside the booth. The bag contained approximately 200 small zip-lock bags containing suspected crack cocaine. The patrons who had been waiting outside for the arrival of Spider then proceeded to line up in front of the D.J.'s booth in order to make purchases. Niecey would take the money from the individual patrons and Spider would deliver the crack cocaine. Investigator Houston got in line and upon arriving at the booth, purchased 20 packets of crack cocaine from Spider in exchange for $100.00. These transactions took place in plain view on the licensed premises. On September 23, 1987, Investigators Houston, Thompson and Campbell entered the licensed premises known as the Club Night Shift. The barmaid on duty was Josephine. Spider was positioned in the D.J.'s booth making sales to patrons of what appeared to be crack cocaine. Investigator Campbell walked over to the D.J.'s booth and asked to purchase ten (10) pieces of crack cocaine from Spider. Approximately 200 zip-lock packets of suspected crack cocaine were positioned in front of Spider. Spider motioned for Campbell" to pick them out." Campbell then picked out ten (10) packets in exchange for $50.00 which he gave to Spider. This transaction occurred in plain view of other individuals on the licensed premises. Before leaving Spider went behind the bar, obtained a .357 magnum pistol, placed it inside his pants and exited the premises. On September 29, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. The bartender on duty was Josephine. Shortly after the investigators arrived, Spider appeared on the premises and went behind the bar where he took a pistol from inside his pants and placed it under the bar counter. Spider then removed a brown paper bag from under the bar counter and went to the D.J. s booth. Investigator Thompson proceeded to the D.J.'s booth and asked to purchase two (2) large pieces of crack cocaine. Spider reached into the bag and gave Investigator Thompson two (2) large pieces of crack cocaine in exchange for $100.00. On October 3, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. Investigator Campbell approached an unknown black male who Campbell had seen selling narcotics on prior occasions. Campbell made inquiries relative to the purchase of cocaine and the unknown black male indicated that he could sell Campbell crack cocaine. The unknown male then gave two five dollar ($5.00) pieces of crack cocaine to Investigator Campbell in exchange for $10.00. This transaction took place in plain view on the licensed premises. On October 6, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. Shortly after the investigators arrived, they observed Spider on the premises selling crack cocaine to patrons from the D.J.'s booth. Subsequently, Investigator Thompson went to the D.J.'s booth and asked to purchase twenty (20) pieces of crack cocaine. In response thereto, Spider left the licensed premises and proceeded to a pickup truck parked outside. Spider then retrieved a brown paper bag from the vehicle, returned to Investigator Thompson and handed him twenty (20) pieces of crack cocaine in exchange for $100.00. The substance purchased on this occasion was laboratory analyzed and found to be cocaine. The Respondent licensee admitted to being an absentee owner. The Respondent did not maintain payroll, employment or other pertinent business records. The licensee was aware that drugs were a major problem in the area surrounding the premises and that drug transactions were known to take place immediately outside of the licensed premises. The licensee did nothing to prevent the incursion of narcotics trafficking onto the licensed premises. The licensee, CeoIa Cutliff, is engaged to Arthur Dorsey. Ms. Cutliff gave Mr. Dorsey a key to the premises and knew or should have known that he was operating in the capacity of a manager on the licensed premises. Josephine, the bartender generally on duty, referred to Mr. Dorsey as "boss man" and Mr. Dorsey directed her activities in the licensed premises. Mr. Dorsey a/k/a Spider utilized the licensed premises as if they were his own and was operating in the capacity of a manager at the Club Night Shift.
Recommendation Based upon the foregoing, it is recommended that Respondent's beverage license 23-06844, Series 2-COP, located in Miami, Dade County, Florida, be revoked. DONE and ORDERED this 12th day of November, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4482 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in substance in Finding of Fact 1. 2. Adopted in substance in Finding of Fact 2. 2. (Petitioner has two paragraphs numbered 2) Adopted in substance in Finding of Fact 3. 3. Adopted in substance in Finding of Fact 4. 4. Adopted in substance in Finding of Fact 5. 5. Adopted in substance in Finding of Fact 6. 6. Adopted in substance in Finding of Fact 7. 7. Adopted in substance in Finding of Fact 8. 8. Adopted in substance in Finding of Fact 9. 9. Adopted in substance in Finding of Fact 10, 11 & 12. Rulings on Proposed Findings of Fact Submitted by the Respondent (None Submitted). COPIES FURNISHED: W. Douglas Moody, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 R. Scott Boundy, Esquire 901 E. Second Avenue Miami, Florida 33132 Honorable Van B. Poole Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Bell, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Daniel Bosanko Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Respondent Elias Zarate-Rizo has held license no. 64- 000448, a series 2-COP license issued by the Division of Alcoholic Beverages and Tobacco in the Department of Business and Professional Regulation, continuously since April 27, 1993. At all times relevant to this proceeding, respondent has been the holder of the license. The licensed premises is located at 103-105 North Summit Street, Crescent City, Putnam County, Florida. Divided primarily into a restaurant and a pool hall, the business is known as Jalisco's Corner. Lieutenant Mark I. McIntyre is second-in-command under the Chief of Police for the Crescent City Police Department and has been the police department's patrol supervisor since 1989. While on patrol during the early morning hours of July 16, 1993, Lieutenant McIntyre noticed lights on in Jalisco's Corner. He parked his car at approximately 2:30 a.m. to observe the licensed premises because under a local ordinance it is not permitted to serve alcoholic beverages or even to be open for business after 2 o'clock in the morning. From 50 feet away, through a large plate glass window providing an unobstructed view of the well-lighted pool hall, the lieutenant counted 14 people present, some of whom appeared to be drinking: respondent, Juan Franco, known to him to be an employee of Jalisco's Corner, and 12 customers. Respondent was leaning up against the bar drinking a Miller Lite beer. The beer on the premises is stored in ice coolers in the restaurant. Lt. McIntyre saw Franco walk from the pool hall into the restaurant and return shortly with a tray of what appeared to be six beer bottles. Franco placed the tray down and opened the bottles. Lt. McIntyre exited the patrol car and moved to the double doors of the pool hall only to find them chain-locked. Through the plate glass window, the officer motioned to respondent, who, with the Miller Lite in hand, admitted him onto the premises. Informed that he was serving alcoholic beverages after hours, Zarate- Rizo answered that Juan Franco did not work for him, therefore, he bore no responsibility for Franco's actions. When confronted with the officer's knowledge that Franco was, indeed, an employee, as evidenced by the order pad sticking from his back pocket, respondent admitted serving alcoholic beverages after hours, expressed regret and said it would never happen again. Lieutenant McIntyre proceeded to close down Jalisco's Corner for the evening. In the process of doing so, he came into firsthand contact with the six bottles he had seen Franco serving. They were still cold to the touch, foaming, and in the officer's opinion, were beer. Twelve days later, July 28, 1993, Lieutenant McIntyre, on patrol again, was driving by Jalisco's Corner at 2:11 a.m. As he approached he saw a red Ford pickup truck backing out of the parking lot. An Hispanic-looking male, later identified as Felix Carbajal, was pointing a handgun at the truck and making motions as if he were firing the gun. Respondent, together with his wife and baby, were in the parking lot. The officer advised dispatch of the situation and that he would attempt to intervene. With his own gun drawn, Lieutenant McIntyre approached Carbajal and ordered him to drop the weapon. Carbajal did not comply. He continued to point his firearm at the truck and its driver. Again, Lieutenant McIntyre ordered Carbajal to drop the gun. By now, a crowd had gathered. Carbajal turned, faced Lieutenant McIntyre, and pointed the gun at him. Staring down the barrel of the gun, the lieutenant clearly recognized it as an automatic or semiautomatic weapon of approximately 9 mm calibre with an extended magazine clip. Despite any impulse to protect himself, Lieutenant McIntyre rejected the idea of shooting Carbajal for fear of injuring children in the crowd. He continued to address Carbajal until Carbajal placed the gun on the ground. As he gave further instruction to Carbajal, a child ran from the crowd, picked up the gun and ran into Jalisco's Corner. Throughout the confrontation with Carbajal, respondent was in the parking lot with his wife and another child. Shortly after the first child ran into the restaurant with the gun used by Carbajal, respondent, with several others, followed the child into the restaurant, closed the door and locked it. Backup officers arrived. As Lieutenant McIntyre placed Carbajal under arrest, Officer West attempted entrance into Jalisco's Corner through a back door. The back door was also locked. Watching the door, Officer West saw a person stepped out. When Officer West made his presence known, the person reentered and re-locked the door. More backup officers arrived. Telephone calls were placed by the officers into the restaurant for the purpose of getting the occupants out and gaining admission of law enforcement personnel. Each time a phone call was made, Lieutenant McIntyre observed respondent through the plate glass window answering the phone. The officers told respondent he and the others should come out with hands up. Neither respondent nor the others did so, nor did respondent allow the officers entry. By now, seven law enforcement vehicles were present outside the licensed premises. The Chief of Police, SWAT team members, and deputy sheriffs all had responded. Of the seven vehicles, at least five had their blue lights flashing. A half-dozen or so phone calls were attempted. Respondent was informed that if the occupants of Jalisco's Corner did not come out the SWAT team was coming in. But, the officers wanted to avoid a forced entry because of the presence of children, at least the baby and the child who had seized the firearm. After 20 to 30 minutes of negotiation and with the SWAT team prepared to enter, the occupants emerged from the building. As a Spanish-speaking officer questioned respondent, the child who had taken the weapon was questioned, too. They did not reveal the whereabouts of the weapon. Search dogs were brought in to the building but the firearm taken by the child into the licensed premises was never found by the authorities.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered ordering Respondent to pay a civil penalty in the amount of $1,250.00, ($250.00 for the hours of sale violation and $1000.00 for violation of Section 562.41(4)), and that alcoholic beverage license No., 64-00448, series 2-COP, be suspended for a period of time of 30 days. DONE and ORDERED this 2nd day of June, 1994, in Tallahassee, Leon County, Florida. DAVID M. MALONEY 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 2nd day of June, 1994. APPENDIX Petitioner's findings of fact Nos. 1-16 have been adopted, in substance, insofar as material. Respondent submitted no proposed findings of fact. COPIES FURNISHED: Miguel Oxamendi Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 John J. Harris Acting Director DABT Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Elias Zarate-Rizo Pro Se 105 North Summit Street Crescent City, Florida 32112 Jack McRay Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times pertinent to this hearing, Respondent possessed alcoholic beverage license number 28-319, Series 2-COP, located at 1963 27th Street, Sarasota, Florida, where it operated the Friendly Tavern. Respondent's place of business is well known to the intelligence unit of the Sarasota Police Department (SPD) , as a place where sales of narcotics are conducted both inside the premises and on the grounds. This information comes from confidential informants and intelligence reports submitted by officers working in the field. Sergeant John P. Viana, SPD, works primarily in this area of town and is personally aware of two recent drug arrests at Respondent's tavern. One took place about 3 to 4 weeks prior to April 13, 1983, and the other, about 3 to 4 weeks prior to that. In the first arrest mentioned, three officers were injured and several arrests were made. In the second, the offender actually ran into Respondent's tavern to escape arrest. Beverage Officer Keith Hamilton was assigned to an investigation of bars and restaurants in the area of Respondent's tavern during late March and early April, 1983. He is a qualified narcotics investigator and is familiar with the appearance and me11 of marijuana. At approximately 11:30 A.M. on March 24, 1983, Hamilton entered the Friendly Tavern, went to the bar and ordered a beer. While drinking, he asked the barmaid, Clarice, if she knew where he could get marijuana. When she indicated she did, he then gave her $10.00. She went down to the other end of the bar, talked with an unidentified black male, and returned to him with a bag of vegetable substance and $4.00 change. She gave him this bag after taking out enough of its contents for two cigarettes, one of which she smoked. After receiving the bag, Hamilton gave Clarice $1.00 with which to purchase rolling papers for him, which she did. The substance in the bag referenced above was subsequently tested at the laboratory of the Florida Department of Law Enforcement, and identified as marijuana. All tests referred to herein were conducted at that same laboratory. Later that same day, at approximately 3:00 P.M., Hamilton went back into the Friendly Tavern where, after playing pool with a patron, he again went to the bar, had a beer, and asked Clarice if he could purchase more marijuana. This time he gave her $12.00 which she took to the end of the bar, called over a black male, and gave him the money. This individual left the area and when he came back shortly thereafter, he gave what he had with him to Clarice who brought it to Hamilton. This substance, in two separate bags, was subsequently tested and identified as marijuana. The next day, March 25, at approximately 1:00 A.M., Hamilton went back to the Friendly Tavern. This time, Clarice was not there and Hamilton talked with a female patron who, in his opinion, was using marijuana. He asked her where he could get some and she told him she would send someone to him, whereupon she left the bar. Shortly thereafter, a man, subsequently identified as "Pop," came in and approached him. After a short discussion, Hamilton paid Pop $10.00,getting in return a bag of a vegetable substance subsequently tested and identified as marijuana. All during this transaction, Hamilton and Pop were in clear view of the barmaid. About 10:00 P.M. the same day, Hamilton went back to the Friendly Tavern and talked with Clarice who was playing pool at the time. Hamilton gave her $10.00 to buy some marijuana for him and left. When he came back about an hour later, she gave him the substance which was later tested and determined to be marijuana. Hamilton did not return to the Friendly Tavern until April 9, 1983. On this day, when he entered, he talked with Clarice who was upset with him because he had not been back as he had promised. When he asked her about marijuana, she left the bar returning shortly thereafter with a black male with whom she talked at the other end of the bar. Soon, she called Hamilton over and told him that this person had only $10.00 bags for sale, as opposed to the $6.00 bags she had purchased previously. Hamilton indicated he did not want to buy any at that price but Clarice encouraged him to do so saying it was good quality. He did buy some, whereupon Clarice took it behind the bar and rolled two cigarettes with it. While she was doing this, she asked Hamilton to stand over by the pool tables and keep watch. When she had rolled the first two cigarettes, Clarice asked Hamilton if he wanted her to roll some for him, to which he replied "yes." When she had done so, he went to the bar and got them and the remaining substance which was later tested and identified as marijuana. On the several occasions Hamilton visited Respondent's tavern he did not see Mrs. Wetherington there. In fact, the only employees he saw on the premises were Clarice and the other unidentified barmaid. He smelled marijuana smoke in the bar only once when he was in there other than when smoked by Clarice, and on only one occasion did he see other patrons smoking what he believed to be, from his training, marijuana. Mrs. Ann M. Anderson-Wetherington, a public health nurse for the Sarasota County Health Department, is the sole stockholder in Friendly Tavern, Inc.. She is also the manager and does all the hiring and firing. She is on the premises almost every afternoon at shift change, approximately 6:30 P.M., to check the cash, etc. The Friendly Tavern is open from 10:30 A.M. to 2:30 A.M. on Monday through Saturday and from 12:30 P.M. to 2:30 A.M. on Sunday. In March and April, 1983, the Friendly Tavern had three employees, Claritha Harris (Clarice) and Fanny Lou Williams, both barmaids, and Lawrence Major, a custodian. Mrs. Wetherington claims to have a staff meeting each Sunday before opening during which she updates her employees on her policies. This lecture frequently includes specific prohibitions against the use, possession, or sale of drugs on the premises. She was out of town during the raid on April 13, 1983, and states she first learned of the sales of marijuana when she returned to town on April 17. When she learned of Clarice's sales, she immediately fired her and had she known earlier, she would have fired her earlier. Her other employees never told her about Clarice's activities nor did the Division ever contact her directly about drug activity in her establishment. In light of the two previous drug arrests at the Friendly Tavern, as testified to by Sergeant Viana, however, I find that she did know, or should have known, of the activities going on in there regarding drugs.
Recommendation On the basis of the facts and circumstances above, it is RECOMMENDED: That Respondent's alcoholic beverage license number 68-319, Series 2-COP, be suspended for a period of 90 days and that it pay a fine of $100.00 for each of six violations alleged. RECOMMENDED this 24th day of May, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1983. COPIES FURNISHED: Harold F. X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 S. Thomas Padgett, Esquire 2168 Main Street Sarasota, Florida 33577 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary R. Rutledge Secretary, Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
