Findings Of Fact At all times pertinent to the issues herein, Respondent held Florida Alcoholic Beverage License 2-COP No. 54-00184 at Stew's Bar located at Third Avenue, Maloney Subdivision, Stock Island, Monroe County, Florida. The parties stipulated that Robert Stanley Gardner, Respondent's husband, has a financial interest in the leased premises. Based on Respondent's testimony, it is clear that she did not understand the nature of her stipulation regarding Robert Stanley Gardner's interest in the licensed premises, and he in fact has no interest therein. Stew's Bar has had a reputation with the Monroe County Sheriff's Department as a trouble spot for a considerable period of time prior to the events which took place here. However, upon questioning, Major Somberg, who had a computer printout of all calls received by his office relating to this establishment, was unable to cite even one previous call relating to narcotics. Nonetheless, based on the records of law enforcement agencies in the area, an undercover operation was instituted against Respondent's establishment in late April and early May 1984. On April 25, 1984, at approximately 3:50 p.m., Gale Sampson, an investigator with the Miami office of the Division of Alcoholic Beverages and Tobacco, entered Respondent's bar in an undercover capacity. She spent a period of time observing patrons and employees and noticed a Latin male who had a towel rolled up under his arm. She observed this individual take a packet from the towel, wave it in the air, and say "Haircut." The bartender at the time, Geraldine Hook, laughed, as did several patrons, but made no effort to stop this individual. This packet, a plastic bag containing a white powdery substance, was consistent with the way cocaine is packaged. This package was not, however, confiscated, nor were the contents identified. The following day, at 5:45 p.m., Sampson again went into the bar. She saw Hook again working behind the bar and asked Hook if she knew where she, Sampson, could get some cocaine. Hook turned and asked a female by the name of Alvarez, who said "Yes." Alvarez and Sampson agreed upon a price of $45 for a half gram, and Sampson gave Alvarez $50. Somewhat later, Alvarez returned to the bar and gave Sampson a half gram package and $5 in change. The contents of this package were subsequently tested in the laboratory of the Monroe County Sheriff's Office and were determined to be cocaine. Hook categorically denies arranging this sale. She admits to knowing Alvarez, but denies knowing even if there was any deal between Alvarez and Sampson. She also contends that when Sampson approached her to buy cocaine, she refused to get Sampson any and told Sampson that if she wanted any, she would have to get it herself. This last admission serves to defeat the credibility of Hook's denial. Somewhat prior to this transaction between Sampson and Alvarez, Beverage Investigator Clark A. Raby, assigned to the Live Oak, Florida, office, but in Key West on the same undercover operation, entered Respondent's bar at 4:50 p.m. as a backup for Sampson. He sat at the bar and ordered a beer from Hook. During the course of the evening, he had a conversation with the bartender and various patrons. He saw one Latin and two white males light and pass around what appeared to him to be a marijuana cigarette right at the door. He later went into the men's room and found a Latin male and a white female in the men's room rolling a cigarette. When he excused himself, she said it was all right--she was in there all the time. Sampson went back into the bar at 11:35 a.m. on April 27 and went right to the bar. She was approached there by a Latin male subsequently identified as Vernesto Seguseo, who asked her to sit in a booth with him. She did, and during the conversation asked him if he was an employee of the establishment. He replied that he was a bouncer, but not on duty. She asked him if he could tell her where she could buy cocaine. He said he had it right there, and she asked him how much one-half gram would cost. He replied "$40," whereupon she paid him as requested. In response, he took a small plastic packet out of his pocket and gave it to her. The contents of this packet were subsequently chemically analyzed by the Monroe County Sheriff's Office and determined to be cocaine. Though this individual never specifically stated he was an employee of this establishment, and evidence indicates from Respondent's witnesses that he was employed as a bouncer at another bar in the area, he was nonetheless seen in this establishment previously in areas reserved for employees of the bar. The testimony of Ms. Otona, the bar manager, and at least one barmaid indicates that this individual was not employed by Respondent's establishment until May 15, 1984, and, at the time of this sale, was not a bar employee. Raby also entered the bar at 4:50 p.m. on April 27, 1984. He went to the bar, where he ordered a beer from Hook. Shortly afterward, a black male offered to sell him a "Columbian joint" for $1.50. Raby paid him $2 and got the cigarette. Hook was there all the time and did not try to stop the transaction. However, there is some doubt as to whether she saw it. Raby testified that when the transfer of the cigarette was made to him, the cigarette was passed at the level of, or even below the level of, the bar, and it is very possible that Hook did not see the transaction occur. Hook indicates that at that time she was wearing dark glasses to cover the effects of a beating she had received from her boyfriend and did not see anything like what Raby described. Consequently, it is most likely that she did not. This cigarette was subsequently analyzed by the laboratory of the Monroe County Sheriff's Office and determined to be marijuana. This same black male individual, subsequently identified by the initials "J. J.," told Raby at the time that there was good cocaine available for $40 from "Latin brothers." On that same afternoon, Raby overheard Geraldine Hook agree to smoke and saw her smoke what appeared to be and smelled like marijuana right outside the back door of the establishment. There is no evidence, however, whether or not the substance was in fact marijuana. On April 28, 1984, Raby went into the Respondent's bar at approximately 5:30 in the afternoon and ordered a beer from the bartender, Joyce. J. J. came up and asked how he liked the cigarette he had purchased the day before, then asked if he wanted to buy some cocaine for $40 a half gram. Raby indicated that he did, whereupon J. J. walked off for awhile and came back. When J. J. came back to the bar, Raby put two $20 bills out which J. J. took. He again went away and came back a moment later with a packet which he passed to Raby beside the bar. He did nothing to hide it, and Joyce was there and did nothing to stop it. Raby is not sure if Joyce saw this or not, however, as he was not looking at her at the time. The substance was subsequently identified by the laboratory as cocaine. Sampson was also at the bar early in the morning of April 28, sitting with Vernesto Seguseo. The barmaid, Joyce, said she was taking $15 from the register and someone would replace it later. Seguseo agreed. Beverage Investigator Beverly Jenkins, who had received word from a confidential informant that an employee of the bar, a maintenance man described as a short black male with a beer belly and no teeth, was selling cocaine. When she first went into the bar on May 14, she saw this man there behind the bar filling the orders and taking orders from Geraldine Hook, the barmaid. When Jenkins talked with him, he admitted he worked there all the time, but did not want to engage in any long discussions at the time. He asked Jenkins to come back without her partner. On May 15, at approximately 5:55 p.m., she went back alone. This individual previously mentioned, who was subsequently identified as "Peter," immediately approached her and offered to introduce her around and "do her right." Jenkins asked him for cocaine. Peter went to another employee, came back, and said he could not provide it. Later, however, he offered to use cocaine with Jenkins if she would go with him. She refused and said she was going to leave, at which point he asked her to wait for him to finish work. Jenkins agreed to this and later left the bar and went out to her car. Shortly thereafter, Peter came out and got in Jenkins' car, at which point he offered to sell her a half gram of cocaine for $40. He offered to reduce the price if she would buy more than one packet. Jenkins agreed to buy three one-half gram packets for $35 each. She paid Peter $105 and received from him a substance which was subsequently identified as cocaine after being analyzed by the Monroe County Sheriff's Office laboratory. At 6:20 p.m. on the following day, May 16, when Jenkins went back in the bar, Peter was not there, but Vernesto, a former employee, was. Within a few minutes, Peter came in and approached Jenkins, asking her if she wanted more cocaine. When she said she did, he asked her to come outside. She resisted at this time because she was playing pool. When she finished the game, Jenkins went over to Peter, who took her outside and sold her a half-gram of a white powdery substance for $30 on the condition that she always buy from him and not from someone else. The substance Jenkins purchased on this evening was subsequently analyzed and determined to be cocaine. While Jenkins was in the bar this evening, she noticed there was a lot of traffic going to and from the rest rooms. She saw Peter go into the rest room with a patron, and she noticed that as he entered the rest room he was taking from his pocket a plastic bag similar to those which he had sold her previously. Jenkins did not see this transaction go down, however, but later saw the patron leave the rest room. The following day, Jenkins noticed that Gerry (Geraldine Hook) was back behind the bar and looked tired. Jenkins noticed that a female patron followed Gerry and her boyfriend into the back, where she saw Gerry breathe in through her nose a white powder. Jenkins asked to join the party at the time, but was refused. The female patron was identified as Donna, a clinic employee, who said at the time they were all a friendly group. This same patron, Donna, went into the restroom later with a Latin male and shortly after came out, rubbing her nose in a fashion consistent with cocaine use. Geraldine Hook, on the other hand, denies under oath that she was ingesting cocaine. Hook contends that she was explaining to her boyfriend why she could not get off work early and that the other lady was translating her comments to her boyfriend, who does not speak English. Hook contends that she does not ever snort or ingest cocaine because she is allergic to all drugs that are in the cocaine family and in support of that statement submitted a medical record from the Florida Keys Memorial Hospital emergency room showing that on April 23, 1984, when who was treated in the hospital because of being beaten by her boyfriend, she listed as allergies novacaine and tetracycline, tetramycin, morphine, and drugs of a similar nature. Hook also contends that she has asthma and could not use cocaine without it closing off her breathing passages. Emergency room records reflect that she has been previously diagnosed as an asthma sufferer. Later on May 17, Jenkins went back into the bar and went to the ladies' room with Peter. Peter offered to sell her two bags of cocaine for $60. After they entered the rest room, Peter closed the door halfway prior to making the transaction; however, the substance which he passed to Jenkins on that occasion and for which he charged $60 was subsequently identified as cocaine. Later that evening, Jenkins again went into the bar and saw Peter working. They played pool for a while, and she asked him for more cocaine. They went to the ladies' room again, where she paid him $60 for one gram of a substance which was subsequently identified as cocaine. During this entire transaction, the door was not closed. That same evening, Jenkins also saw Peter go into the men's room with three Latin males who, shortly after entering with him, came out rubbing and wiping their noses. This practice of patrons going into the restrooms and coming out rubbing their noses was also observed by Beverage Agent Jose Iturralde, who entered the bar undercover on both the 14th and the 15th of May, but who was unable to make a buy from Peter or anyone else because, he believes, he and the other agents had already been identified as agents. A raid in conjunction with the Monroe County Sheriff's Office and other law enforcement agencies was conducted on the premises on May 18, 1984, pursuant to a search warrant properly issued. Arrested at that time were Seguseo, Geraldine Hook, and several other Latin named patrons. Pursuant to the search carried out, the following items were found: one and one-half grams of cocaine behind the jukebox; 26 clear baggies, each containing a half-grain of cocaine, behind the bar counter on the floor; a partially smoked marijuana cigarette on top of the cash register; 14 baggies, each containing cocaine, on the bar counter; a partially smoked cigarette below and behind the bar on the southeast corner of the bar on the floor; 22 baggies of cocaine on the floor behind the bar near the entrance (these 22 baggies were contained in a white envelope) 9 syringes in a small storage room off the main bar; and a Marlborough cigarette pack containing a clear plastic bag of cocaine on one of the booth seats. Geraldine Hook does not recall seeing any patron waving a plastic bag on April 25, as testified to by Agent Sampson; however, she contends that, because of the fact that the police frequently come into the bar looking for narcotics, it is a habit of some of the patrons, as a joke, to wave around clear plastic bags which do not contain cocaine. These instances generally result in the type of laughter described by Sampson. When Hook was hired by the manager, Ms. Otona, she was told, and she recalls that other girls who had been hired there are told, that they, as employees, cannot have or use drugs on the premises or allow anyone in who uses drugs; that if they see anyone they think is using drugs, they are to put that person out. Any violation of these rules results in discharge of the employee. Hook admits having seen mixed couples going into the rest rooms from time to time, but considers this to be acceptable behavior, since there are no locks on the doors. The rules for employees, which are made known to the employee when hired, were confirmed by another barmaid, Brenda L. Gillespie. She added to the no-drug policy such things as no drinking to excess and no kissing during work, and she herself recalled having barred numerous people and having seen others barred over the past few months because of the new management (that of Mrs. Gardner, Respondent, and Ms. Otona, manager) and their attempts to do away with the previously bad reputation the bar had for drugs. Because of this, the waitresses have taken substantial abuse. Ms. Gillespie confirmed Ms. Hook's comments regarding the joke made of the waving of plastic bags, contending that the patrons are trying to test the barmaids to see how far they can go. Gillespie also contends that she is the one who pried the locks off the restrooms to prevent patrons from locking themselves in the rooms to use drugs and has many times told patrons to keep the drugs out, going so far as to call the police. Notwithstanding the testimony of all of the beverage agents that they had never seen the Respondent or the manager on the premises, Gillespie opined that either one or both are there all the time or are immediately on call, since they live in the immediate vicinity of the bar. Further, she contends that the agents were there on irregular hours or were so busy pretending to be drunk that it was impossible for them to see anyone. She recognized the undercover agents as agents, but she did not let on because she wanted their help. Louise Otona, currently the manager of Stew's Bar for Katherine Gardner, the owner, indicated that she and Respondent realized about one and a half or two months ago that there was a problem at the bar because of Respondent's husband, Stanley Gardner. Mr. Gardner is a cocaine addict, but has no interest in the premises or in the license. Because of his problem, however, Ms. Otona keeps all the money from the sales, and none is left at the bar. Respondent and Ms. Otona have barred anyone they knew who had any connection with Mr. Gardner and his drug habit. Ms. Otona has also fired anyone she knows who has anything to do with drugs and has taken over from the barmaids throwing people out. Ms. Otona admits that drugs may have been sold in the bar, but not with her knowledge or with the knowledge of her employees, because both she and Respondent have tried to do their utmost to keep drugs out. The waitresses in Stew's Bar are hardworking girls who would not knowingly jeopardize their livelihood by selling or permitting drugs to be sold in the bar. Ms. Otona and Respondent have worked hard to make Stew's Bar clean again and have made progress. Ms. Otona has received many compliments from the police on these efforts. With regard to Peter, the Latin male who sold to Jenkins on several occasions, Ms. Otona contends that Peter was fired by her personally on May 15, 1984, and could not then have been an employee of the bar at the time the sales were made. However, many of the barmaids' boyfriends help behind the bar, as do some patrons. Consequently, it may appear that individuals are employees who are working behind the bar when, in fact, they are not. Respondent testified similarly to Ms. Otona. Respondent does not use drugs herself, nor does she drink. Her husband, Stanley, is a drug addict, and she has started work to have him committed because of his addiction. He has nothing to do with the bar, however, and he is not the landlord. As far as J. J.'s coming into the bar is concerned, J. J. was barred from this establishment prior to the incidents in question, but keeps coming back. Respondent has called the police to have him thrown out, but nothing seems to help.
The Issue The issue posed for decision herein is whether or not the Respondent's alcoholic beverage license should be suspended, revoked, or otherwise disciplined based on the Petitioner's Notice to Show Cause filed herein dated April 13, 1983.
Findings Of Fact The Manhattan Restaurant holds alcoholic beverage license No. 68-442 SRX, Series 4-COP, issued in the name of Johnny W. Abner. The premises are located at 1409 Ninth Street, Sarasota, Sarasota County, Florida. Respondent's place of business is well known to the Intelligence Unit of the Sarasota Police Department as a place where sales of narcotics are conducted inside the premises. This information comes from confidential informants and intelligence reports submitted by officers working in the field. (Testimony of Keith Bernard Hamilton, State Beverage Officer; and James D. Fulton, Police Officer, City of Sarasota.) Detective James D. Fulton works primarily in this area of town and is familiar with crimes against persons in narcotics dealing in the area of the Respondent's tavern. 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 smell and appearance of marijuana and cocaine. During the evening of March 22, 1983, Officer Hamilton entered the licensed premises and made contact with the on-duty disc jockey, Joel, and inquired of Joel as to the availability of marijuana. Joel advised that he could obtain some for Officer Hamilton and, upon being given $10, left the area. Joel returned in approximately 10 minutes and handed Officer Hamilton a yellow manila envelope containing a vegetable substance together with $4 in change. The exchange was made openly without any attempt to hide. Officer Hamilton bagged, sealed, and receipted the substance given him by Joel, which was returned to the Sarasota district office and later submitted to the FDLE crime laboratory in Tampa for analysis. Analyst Brenda Norton determined that the substance purchased contained cannabis. At the hearing herein, Officer Hamilton identified the substance analyzed as that purchased by him from Joel. (Petitioner's Exhibit 1.) Joel, during testimony in the instant proceeding, admitted that he made the purchase from an unidentified patron from Bradenton, Florida. Officer Hamilton returned to the licensed premises of the Manhattan Restaurant on the evening of March 22, 1983, where he observed patrons smoking marijuana. Officer Hamilton observed the unique manner in which the cigarette was rolled and the manner in which the patrons held and inhaled the smoke. Based on the aroma of smoke that he smelled on that occasion, he concluded that it was marijuana that was being smoked by the patrons. Officer Hamilton next returned to the licensed premises of the Manhattan Restaurant on the evening of March 23, 1983, at approximately 9:30 p.m. Again, Officer Hamilton made contact with the on-duty disc jockey, Joel, and inquired as to the availability of marijuana. Joel advised that he did not have marijuana for sale at this time, but did advise that he had some good "coke" for sale. Officer Hamilton handed Joel $10, and Joel left and shortly returned with a clear capsule containing a substance which was later analyzed by the FDLE crime laboratory. Analyst Morton determined that the capsule analyzed contained cocaine. At the hearing, Officer Hamilton identified the substance analyzed as that purchased by him on the evening of March 23, 1983. (Petitioner's Exhibit 3.) Joel admitted to such sale and advised that he obtained the drug from a patron at the bar. While at the bar and during the purchase of the cocaine capsule from Joel on March 23, 1983, Officer Hamilton observed the licensee, Johnny Abner, at the bar area of the licensed premises on that occasion. Approximately one hour later, Officer Hamilton again made contact with Joel at the bar area at the Manhattan Restaurant and inquired as to the availability of marijuana. Joel advised that he had some available and told Officer Hamilton to wait for a moment. Joel returned and exchanged one manila envelope for $6. The transaction was carried out in an open manner, and the licensee, Abner, was observed at the time of the transaction at the bar area. The substance purchased by Officer Hamilton was bagged, sealed, receipted and returned to-the district office, which later submitted the substance to the FDLE crime laboratory in Tampa. Analyst Morton determined that the substance analyzed contained cannabis. (Petitioner's Exhibit 2.) Joel admitted to purchasing the marijuana for Officer Hamilton from another patron at the licensed premises whom he knew sold drugs. On that occasion, Officer Hamilton again observed patrons passing what, from his experience, were marijuana cigarettes. The patrons were located in the pool table area, and their actions were observable from the bar. On the afternoon of March 24, 1983, Officer Hamilton discussed with Joel trading liquor which Officer Hamilton represented was stolen from an ABC liquor truck to licensee Abner for marijuana. Joel advised that he would check with Abner as to whether he wanted to make a trade and asked Officer Hamilton to check back with him that evening. As requested, Officer Hamilton returned to the licensed premises of the Manhattan Restaurant at approximately 7:40 p.m. on the evening of March 24. Officer Hamilton made contact with Joel, who advised that Abner had agreed to the trade. Joel and Hamilton thereafter unloaded two cases of allegedly stolen liquor into the back of a red and white Ford van bearing license No. BP8575, which is registered to the licensee, Abner. The transfer was made in the parking lot of the licensed premises pursuant to what Joel represented were instructions from Abner to put it in the truck. Joel thereafter advised Officer Hamilton to check back with him in approximately one hour since licensee Abner had sent someone to get the marijuana. Officer Hamilton returned to the Manhattan Restaurant at approximately 10:00 p.m. and made contact with Joel. Joel advised that Abner had not yet sent anyone for the marijuana, and during the course of that discussion, Joel advised that Abner, when he buys such property, frequently tries these tactics to get the price as low as possible. Joel, however, advised that he would seek to the get the best price for him. During his stay, Officer Hamilton observed Joel and licensee Abner having a discussion and later an exchange of currency. Thereafter, Joel advised Officer Hamilton that Abner had given him the money, and Joel procured from a patron on the licensed premises approximately one-half ounce of a vegetable substance. Officer Hamilton bagged, sealed, and receipted the substance given him by Joel, returned it to the district office, which later submitted it to the FDLE crime laboratory in Tampa. The substance was analyzed by analyst Brenda Morton and was found to contain cannabis. (Petitioner's Exhibit 4.) At the time of the service of th& Emergency Order of Suspension, April 13, 1983, Officer Goodman found two 1.75 liter bottles of Popov Vodka in the bar area of the Manhattan Restaurant where other liquor for sale to customers was kept. These liquor bottles had previously been marked by Officer Ken Goodman as part of the quantity represented to be stolen and traded to Joel by Officer Hamilton in exchange for the marijuana. (Petitioner's Exhibits 6 and 7.) 2/ Officer Hamilton remarked to licensee Abner that he could "get him the same deal again." Jeffery Dawson, a bartender employed at the Manhattan Restaurant, has been given instructions by licensee Abner regarding certain prohibited acts, including the carrying of weapons and the use of drugs in the licensed premises. Dawson has also heard the disc jockey (D.J.) announce that no drugs or firearms were to be used or carried in the licensed premises. Patrice Rivers, a barmaid employed at the Manhattan Restaurant since approximately March, 1983, was told, at the time of her employment, by licensee Abner that there were to be no drugs or firearms carried or used by customers in the licensed premises. Employee Rivers has observed signs outside and inside the building prohibiting drug use in the licensed premises. Kenneth Davis, a part-time handyman employed at the Manhattan Restaurant, assisted licensee Abner in making liquor purchases from distributors and, on occasion, from the ABC Liquor Lounge in Sarasota, Florida. Davis has observed several employees using licensee Abner's van. Employee Davis has listened to both the disc jockey and licensee Abner use the P.A. system to announce that there were to be no drugs consumed in the licensed premises. Employee Davis heard the conversation between Joel and licensee Abner regarding the exchange of the allegedly stolen liquor for drugs. Initially, Joel asked licensee Abner for $80 to purchase the allegedly stolen liquor. Licensee Abner refused, whereupon Joel returned for the second time and requested $60 to purchase the allegedly stolen liquor. Again, licensee Abner refused and, the third time, Joel requested $40 to purchase the liquor. Again, licensee Abner refused and, at that time, Joel asked to borrow $40 until he received his paycheck the following week. Licensee Abner loaned Joel the $40, and the exchange was made between Officer Hamilton and Joel outside the licensed premises. Later that evening, Joel asked the bartender to keep two bottles of Popov Vodka behind the bar. According to Davis, Smirnoff is the vodka principally sold by the licensee. Davis refers to licensee Abner as "Buddy." Joel asked Buddy to use the van to take the liquor home that he had purchased from Officer Hamilton. James Bowen, a bartender employed full-time at the Manhattan Restaurant, has been so employed since the club's inception approximately eight years ago. As part of his duties, bartender Bowen stops fights, serves drinks, and attempts to prohibit the use of drugs inside the licensed premises. Bartender Bowen kept two bottles of Popov Vodka for Joel behind the bar area. Joel Harris, a disc jockey employed full-time at the Manhattan Restaurant since approximately 1980, is familiar with Officer Hamilton. Joel met Officer Hamilton approximately four weeks prior to April 13, 1983, when he was introduced by another friend. Officer Hamilton asked Joel if he could assist him in getting some "girl." 3/ Joel admits to purchasing marijuana and cocaine for Officer Hamilton and confidential informant Sutton. Although Joel admits to purchasing marijuana and cocaine for Officer Hamilton, he insists that licensee Abner was unaware of such purchases and that they were not made in licensee Abner's presence. Further, Joel contends that when offered the exchange for the stolen liquor by Officer Hamilton, licensee Abner refused to purchase the allegedly stolen liquor and would not assist him in the purchase of same despite his attempts to do so on at least three occasions. Joel borrowed licensee Abner's van to transport the allegedly stolen liquor from the licensed premises to his apartment where he was to later have a party. Joel admits to having made a mistake in purchasing the allegedly stolen liquor and purchasing drugs for Officer Hamilton on the licensed premises; however, he states that licensee Abner should not be held responsible for his acts and/or conduct. Joel has been arrested and charged for the felony sale of a controlled substance to Officer Hamilton. Johnny Wilbur Abner, the licensee, is the owner/operator of the Manhattan Restaurant. Licensee Abner has operated the Manhattan Restaurant for approximately eight years. Licensee Abner has a policy of no drugs or loitering in his premises, and he further enforces a no loitering policy in the parking lot of his premises. Licensee Abner enforces that policy with and through his employees. Licensee Abner has evicted a number of patrons from the Manhattan Restaurant and recalled having done so as frequently as three (3) times each week. Additionally, licensee Abner has a policy to avoid dealing in stolen property entirely. He has not knowingly purchased any stolen liquor, nor has he been introduced to Officer Hamilton prior to the subject incident. Licensee Abner loans Joel money on a regular basis. Licensee Abner offered no explanation as to how the Popov Vodka got to his place, inasmuch as he does not sell Popov Vodka. Division Director Willingham's examination of the inventory taken when the Emergency Suspension and Notice to Show Cause were served upon the Respondent on April 13, 1983, revealed that there were, inter alia, four 1.75 liters of Popov liquor on the licensed premises on that date and that, in addition, there were two other bottles of Popov liquor which were seized by beverage agents during the serving of the Emergency Suspension Order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Respondent's alcoholic beverage license No. 68-442 SRX, Series 4-COP, be suspended for a period of ninety (90) days and that it pay a fine of $100 for each of seven (7) violations alleged in the Notice to Show Cause filed herein dated April 13, 1983. RECOMMENDED this 24th day of June, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1983.
Findings Of Fact Respondent is Alice Waldo, holder of Alcoholic Beverage License No. 45- 00293, Series 2-COP, for a licensed premises known as the SILVER DOLLAR CAFE located in Lake County, Florida. On or about February 4, 1989, an investigator employed by Petitioner entered the licensed premises of Respondent. While in Respondent's facility, the investigator observed several patrons smoking a substance, which by its smell and usage, he believed to be marijuana. The investigator then met with a patron, ordered a small quantity of crack cocaine and handed the patron some money for the forthcoming purchase. The patron then asked Respondent to hold the money while he left the premises to retrieve the controlled substance from his automobile. Shortly thereafter, the patron returned with the cocaine. The investigator showed the substance to Respondent's daughter, who had taken her mother's place at the bar. The purpose of displaying the drug to the proprietor, or the proprietor's daughter in this instance, was to later illustrate that Respondent condoned the use and sale of the drug in connection with her licensed premises. A field test by the investigator and a later laboratory test confirmed the identity of the substance purchased as crack cocaine. Petitioner's investigator again entered Respondent's facility on or about February 10, 1989. On this occasion, the investigator purchased a quantity of marijuana from a female patron, then took the substance over to the bar where he proceeded to roll a marijuana cigarette in the presence of Petitioner. At no time did Petitioner inform the investigator that controlled substances were not allowed on the licensed premises. Upon later laboratory analysis, the substance was confirmed to be marijuana. Upon leaving Respondent's facility on February 10, 1989, Petitioner's investigator met an individual within 10 feet of the front door of the premises who sold him a quantity of a substance later determined by laboratory analysis to be crack cocaine. On or about February 24, 1989, Petitioner's investigator entered Respondent's facility. On the front porch of Respondent's facility, the investigator purchased a quantity of a substance later determined by the investigator's field test and a subsequent laboratory analysis to be crack cocaine. After completing the purchase of the substance, the investigator went inside the facility, placed the material on the counter and recounted to Respondent that it had just been purchased on the front porch. Respondent made no reply to the investigator's announcement and, instead, complied with his request for change for a $20 bill. Upon receipt of the change, the investigator wrapped the crack cocaine in a $1 bill in Respondent's presence. On February 28, 1989, Petitioner's investigator again entered Respondent's facility. He approached a black female named "Lilly" and gave her $20 for the purchase of crack cocaine. However, after the lady accepted the $20 and left to retrieve the cocaine, she did not return. The investigator complained to Respondent that "Lilly" had failed to deliver the drug to him. The investigator also told Respondent that the lady could keep the $20 if Respondent would get him some of the drug. At that time, Respondent referred the investigator to a group of three male patrons on the front porch of the facility who appeared to be smoking marijuana. At no time during this incident did Respondent take any steps to prevent the use of any controlled substances on the licensed premises. Subsequently, Petitioner's investigator returned to Respondent's facility on or about March 4, 1989. He purchased a beer and went outside to the front porch of the facility. He observed a number of furtive transactions where currency was passed between certain individuals. He noticed Respondent go to one of the automobiles in the facility parking lot, get into the automobile, engage in conversation with the occupants and shortly thereafter emerge from the automobile. Respondent went back into the facility. The investigator approached a black male and gave him $20 for some crack cocaine. The black male took the investigator's money, then went directly to the automobile where Respondent had been previously. He returned shortly thereafter to the investigator with two pieces of a substance which later tested positive, via field test and laboratory analysis, as cocaine. During another visit to Respondent's facility on or about March 9, 1989, Petitioner's investigator observed a patron rolling what appeared to be marijuana cigarettes in Respondent's presence. While Respondent took no action to prohibit the use or possession of the apparently controlled substance, she did get her coat and leave shortly after the investigator's arrival. On or about March 11, 1989, Petitioner's investigator reentered Respondent's facility. The investigator purchased a small quantity of crack cocaine from a black male on the front porch of the facility. The investigator then took the controlled substance inside the building and displayed it to Respondent, telling her that he had just obtained the drug on the porch. Respondent asked the investigator if he was going to smoke the drug, and he replied yes. Later, a field test and laboratory analysis confirmed the drug to be cocaine. On or about March 17, 1989, Petitioner's investigator visited Respondent's facility. This time the investigator purchased a small quantity of a drug on the front porch of the building which, upon subsequent field test and laboratory analysis, was confirmed to be cocaine. After completing the purchase, the investigator took the substance inside and showed it to Respondent. Later in the evening, the investigator engaged Respondent in conversation on the front porch and related to her that he had observed numerous drug transactions taking place in her facility. Respondent smiled in acknowledgment of the investigator's statement and replied that she certainly hoped he was not a policeman. He told her that he was not a policeman. Respondent took no action to prohibit further use or transactions relating to drugs on the premises.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered revoking Respondent's beverage license bearing number 45-00293, Series 2- COP. DONE AND ENTERED this 13th day of June, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1989 APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-10. Addressed. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: EDWIN R. IVY, ESQUIRE BOX 3223 ORLANDO, FLORIDA 32810 THOMAS A. KLEIN, ESQUIRE DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007 STEPHEN R. MACNAMARA, SECRETARY DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007 LEONARD IVEY, DIRECTOR DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007
The Issue This case concerns an Administrative Complaint filed by the Petitioner against the Respondent. Count I to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its director, stockholder or corporate officer, namely: Carl Bilotti, related to the possession, sale and/or delivery of the controlled substance cocaine on July 15 and 18, 1981; August 20, 1981; and September 9 and 20, 1981. Count II to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee namely: "Anne," related to the possession of the controlled substance cocaine on August 22 and 28, 1981. Count III to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Anne," related to the possession, sale and/or delivery of the controlled substance cocaine on August 23, 1981, and September 4, 1981. Count IV to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Sandy," related to the possession, sale and/or delivery of the controlled substance methaqualone on July 19 and 25, 1981, and the possession, sale and/or delivery of the controlled substance cocaine on August 14, 22 and 23, 1981. Count V to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Eve," related to the possession, sale and/or delivery of the controlled substance diazepam on July 23, 1981. Count VI to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Gina," related to the possession, sale and/or delivery of the controlled substance diazepam on July 25, 1981, two (2) incidents. Count VII to the Administrative Complaint accuses the Respondent of violations of Sections893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Ivy " related to the possession, sale and/or delivery of the controlled substance cocaine on August 14, 1981. Count VIII to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Shayne," related to the possession, sale and/or delivery of the controlled substance cocaine on July 25, 1981. Count IX to the Administrative Complaint alleges that between July 15, 1981, and October 2, 1981, the Respondent, by actions of its agents, servants, employees, manager, corporate officer and stockholder, maintained a place, to wit: the licensed premises, at 2095 best Fourth Avenue, Hialeah, Florida, which place was used for keeping or selling of controlled substances, namely: cocaine, methaqualone and diazepam, in violation of Subsection 893.13(2)(a) 5; Florida Statutes, within the meaning of Subsection 561.29(1)(c), Florida Statutes. Count X to the Administrative Complaint alleges that between July 15, 1981, and October 2, 1981, the Respondent, through its agents, servants, employees, manager, corporate officer and stockholder, kept or maintained a public nuisance on the licensed premises, to wit: maintaining a building or place which is used for the illegal keeping, selling or delivering of controlled substances within the meaning of Chapter 893, Florida Statutes, in violation of Section 823.10, Florida Statutes, and Subsection 561.29(1)(c) , Florida Statutes. Count XI to the Administrative Complaint alleges that on or about July 25, 1981, an agent, servant or employee of the Respondent, one Gina, while engaged as a dancer, unlawfully offered to commit prostitution, in violation of Subsection 796.07(3)(a), Florida Statutes, causing a violation on the part of the Respondent of Subsection 561.29(1)(a), Florida .Statutes. Count XII to the Administrative Complaint alleges that on or about October 2, 1981, an agent, servant or employee of the Respondent, namely: Cathryne Edmondson, possessed a controlled substance, to wit: marijuana, on the licensed premises, in violation of Subsection 893.13(1)(a) Florida Statutes, causing a violation of Subsection 561.29 (1)(a) , Florida Statutes. Count XIII to the Administrative Complaint alleges that on or about December 2, 1981, a director, stockholder or corporate officer, namely: Carl Bilotti, corporate vice-president and 50 percent stockholder, pled guilty and was adjudicated guilty in the Circuit Court of the State of Florida, Eleventh Judicial Circuit, on five (5) counts of violation of Section 893.13, Florida Statutes, sale of controlled substances, namely: cocaine, a felony, and that the felony conviction impairs qualifications of the Respondent to obtain and continue holding an alcoholic beverage license under Subsection 561.15(3), Florida Statutes, and Subsection 56l.29(1)(b), Florida Statutes.
Findings Of Fact The Petitioner had served an Administrative Complaint on the Respondent, which Administrative Complaint contained the Counts as set forth in the Issues statement to this Recommended Order. Subsequent to that time, the Respondent, in the person of counsel, requested a formal Subsection 120.57 (1), Florida Statutes, hearing and the formal hearing was conducted on January 6, 1982. As indicated by correspondence from former counsel for the Respondent to counsel for the Petitioner dated December 15, 1901, Respondent's counsel withdrew from the case. This withdrawal of counsel postdated a Notice of Hearing setting forth January 6, 1982, as the date for hearing and a separate Order of November 24, 1981, which identified January 6, 1982, a the date for hearing. Notwithstanding the Notice and separate Order identifying January 6, 1982, as the hearing date, the Respondent, by and through its attorney or other authorized representative, did not attend the formal hearing. Although the Respondent was not in attendance, the hearing was conducted in view of the continuing request for hearing, which has never been withdrawn. The Petitioner is a governmental agency in the State of Florida, which has, among other duties, the licensure of the several alcoholic beverage license holders in the State of Florida, and the requirement to discipline those beverage license holders who have violated the terms and conditions of their licensure. The Respondent Carl and Mike, Inc., is the holder of an alcoholic beverage license issued by the Petitioner. The Respondent trades as the Raw Hide Bar at a licensed premises at 2095 West Fourth Avenue, Hialeah, Dade County, Florida. On July 15, 1981, at approximately 9:45 P.M., Beverage Officer L. J. Terminello, and a confidential informant, who was assisting Officer Terminello, entered the licensed premises in undercover capacities to continue an investigation which had begun on July 12, 1981. (The Beverage Officer and confidential informant had been in the licensed premises on that former date for purposes of conducting a narcotics investigation.) On this occasion, the investigative purpose was to purchase narcotics. Terminello and the informant took a seat at the bar and waited for the appearance of Carl N. Bilotti, the vice-president of the Respondent and 50 shareholder. It was the intention of Terminello to attempt to purchase narcotics from Bilotti. At 10:50 P.M. Bilotti had not arrived at the licensed premises and Terminello decided to leave; however, when he reached the front door, Bilotti was entering and Bilotti spoke to the confidential informant in the parking lot area of the licensed premises. The confidential informant, in the course of that conversation, asked Bilotti if, "we could get any coke," meaning Terminello and the confidential informant were interested in purchasing cocaine. Bilotti responded by stating, "Sure, no problem. Wait here a minute, I'll be right back." Bilotti then entered the licensed premises and returned a few minutes later and handed the confidential informant a piece of aluminum foil which was folded and the confidential informant handed this item to Terminello. Terminello opened the package and noted a quantity of white powder. Terminello asked Bilotti, "how much" and Bilotti stated, "anything close to $70.00." Terminello paid Bilotti $70.00 in United States currency and following a short conversation, departed the area of the licensed premises. The white powder in question was in fact cocaine. Terminello and the confidential informant returned to the licensed premises on July 18, 1981, at approximately 12:15 A.M. Terminello approached Carl Bilotti who was standing at the end of the bar area next to a cash register. Terminello asked Bilotti if he had any "stuff," referring to cocaine. Bilotti answered "sure" and indicated that the cost for the cocaine would be $70.00. Terminello agreed to the price, telling Bilotti that he would meet him in the mens room for purposes of the exchange of drugs and money. At approximately 12:20 A.M., while located in the mens rest room of the licensed premises, Terminello paid Bilotti $70.00 in United States currency and Bilotti gave Terminello a folded piece of white paper which Terminello could see contained white powder. Shortly thereafter, Terminello and the confidential informant exited the licensed premises. The white powder which had been purchased was analyzed and revealed the presence of cocaine. On July 19, 1981, at around 11:00 P.M., Officer Terminello returned to the licensed premises. While in the licensed premises he spoke with Sandra McQuire, a person that he had met on July 12, 1981. On July 12, 1981, McQuire had been employed as a cocktail waitress on the licensed premises and Terminello had been advised by the confidential informant that McQuire had delivered ten (10) methaqualone tablets to the confidential informant on that date. On that date, July 19, 1981, Terminello told employee McQuire that he wanted to purchase ten (10) more "ludes, meaning methaqualone. At around 11:20 P.M., while Terminello was sitting at the bar, McQuire walked by and handed him a napkin containing ten (10) white tablets. A few minutes later, Terminello handed McQuire $30.00 in U.S. currency in payment for the white tablets. Terminello then left the licensed premises at approximately 11:40 P.M. The ten (10) tablets were subsequently analyzed and found to be methaqualone. On July 23, 1981, at approximately 12:30 A.M., Officer Terminello and the confidential informant entered the licensed premises. Terminello and the confidential informant took a seat at the bar, where shortly afterwards a conversation ensued with an employee/dancer who identified herself as "Eve" and was later determined to be one Eve Mary Carroll. Carroll and the confidential informant had been acquainted prior to this time. During the course of the conversation, Terminello asked Carroll if she knew where he could get some "good ludes." This refers again to methaqualone. Carroll told him that she was "holding," meaning that she had some in her possession. She asked Terminello to pay her $4.00 for each tablet. She stated that the price was higher because they were "pure methaqualone tablets" and that they would "really do a job." Terminello told Carroll that he would purchase three (3) tablets and handed her $12.00 in U.S. currency. A few moments beyond this time, at around 12:45 A.M., Carroll handed Terminello three (3) tablets, each individually wrapped in aluminum foil, which tablets Terminello placed in his pocket. The suspect methaqualone tablets were later determined to be diazepam. On the same date, July 23, 1981, Terminello observed Carl Bilotti enter the licensed premises at around 1:00 A.M. In the course of a conversation that ensued, Bilotti told Terminello he could sell Terminello some cocaine, but that the transaction would have to occur later, in that Bilotti had to leave the licensed premises. Terminello waited until 2:30 A.M. and Bilotti never returned. On July 25, 1981, at approximately 12:00 A.M., Terminello and the confidential informant went back to the licensed premises. Over the next hour and a half, Terminello talked to Carl Bilotti and employee Sandra McQuire about purchasing narcotics; however, neither of those persons were able to deliver narcotics at that time. On that same date, Terminello and the confidential informant did speak with a dancer/employee in the licensed premises who was identified as "Gina" and this individual indicated that she had some "ludes" for sale, meaning methaqualone, that she would sell for $3.00 each. Terminello indicated that he would like to purchase five (5) tablets and they walked out the front door of the premises and Terminello gave her $15.00 in U.S. currency, in return for five (5) white tablets which were marked "Lemon 714." Those tablets were subsequently analyzed and found to be diazepam. At around 2:45 A.M. on July 25, 1981, while in the bar area, Terminello and the confidential informant spoke to an individual, a male, who was known as "Frenchie" later identified to be one Laurent E. Duval, who was in the company of a dancer employed in the licensed premises whose name was "Shayne" later identified to be Sharon K. Hicks. In the presence of Hicks, Terminello and Duval negotiated for the sale of a quantity of cocaine for the amount of $75.00. Duval also indicated that he had to be careful because he had a stolen car, was carrying a firearm and had recently been placed on probation by Circuit Court for narcotics and firearms charges. Duval told Terminello that the narcotics arrangement would have to be consummated in the parking lot of the licensed premises in view of the fact that too many people he did not know were in the bar. Terminello and the confidential informant exited the licensed premises at around 3:00 A.M. in the company of Duval and Hicks. Duval took a seat on the driver's side of an automobile in the parking lot and Hicks sat in the front passenger side seat. Duval handed Terminello a large plastic bag. containing a quantity of white powder which was suspect cocaine. Terminello started to hand Duval $75.00 in U.S. currency but Duval refused to take it, telling Terminello to hand the money to Hicks. Hicks had been observing this transaction and agreed to take the money and did accept the $75.00 in U.S. currency. The suspected cocaine was later revealed to be cocaine. Terminello next returned to the licensed premises on July 25, 1981, at around 9:30 P.M. At that time he was in the presence of the confidential informant. Terminello and the confidential informant took a seat at the bar and were approached by a dancer/employee who had earlier been identified as "Gina." There had been a prior telephone negotiation between the confidential informant and "Gina" for the purchase of five (5) "ludes," methaqualone, and in keeping with that arrangement, "Gina" handed Terminello a white napkin which contained five (5) white tablets. Terminello in turn gave "Gina" $15.00 in U.S. currency. Those tablets were subsequently analyzed and found to be diazepam. On the same evening, i.e., July 25, 1981, at around 9:45 P.M., the cocktail waitress, Sandra McQuire, approached Terminello and stated that she had five (5) methaqualone tablets that Terminello had asked for on the prior evening. She handed him a zip-lock plastic bag containing five (5) white tablets marked "Lemon 714." Shortly after this time, Terminello gave McQuire $15.00 in U.S. currency to pay for the tablets. Those tablets were subsequently analyzed and found to be methaqualone. At around 10:15 P.M. on July 25, 1981, the dancer/ employee "Gina" approached Terminello while he was seated at the bar and advised him that if he "got rid of" his "old lady" and returned about 4:00 A.M. to the premises that she, "Gina," would show him a good time by "fucking his brain out" for $50.00. Terminello acknowledged this offer. On August 3, 1981, at approximately 10:30 P.M., Terminello and the confidential informant returned to the licensed premises. At that time, Terminello entered into a conversation with Carl Bilotti on the subject of narcotics; however, Bilotti indicated that he was unable to procure cocaine at that time. Bilotti did state that he expected a delivery soon and that Terminello should wait a while. Nothing had transpired by 11:45 P.M. concerning the narcotics and Terminello and the confidential informant left the licensed premises. On August 14, 1981, at approximately 10:45 P.M., Terminello and the confidential informant went back to the licensed premises and upon entry took a seat at the bar where they were greeted by the cocktail waitress Sandra McQuire. Terminello asked McQuire if there were any "ludes" around, meaning methaqualone, and McQuire answered in the negative, but she did indicate that there was some "toot," meaning cocaine available for $70.00 a gram if Terminello was interested. Terminello advised McQuire that he was interested and removed $70.. 00 in U.S. currency from his wallet, wrapped it in a napkin and handed it to McQuire. She then stated that she would be back in a few moments. After several moments, McQuire signaled Terminello to walk over to the opposite side of the bar where she was fixing drinks. She then made a comment about the good quality of the "stuff." While Terminello was talking to McQuire, another employee, a dancer in the licensed premises identified as "Ivy" later shown to be one Julie Ann Schwartz, approached Terminello and handed him a plastic zip- lock bag containing white powder. She told Terminello "here is a present from Sandy." Terminello accepted the material. Schwartz then asked Terminello if she could "do a line," referring to the ingestion of cocaine. In view of the circumstances, Terminello did allow Schwartz to taste the cocaine. Schwartz did this by opening the packet in plain view at the bar area and placing her finger into the container and then tasting the substance that adhered to her finger. She then handed the plastic bag back to Terminello and said "you are going to enjoy this. That's good stuff." These matters transpired in the presence of McQuire. The white powder was subsequently analyzed and revealed to be cocaine. On August 22, 1981, at approximately 11:00 P.M., Terminello returned to the licensed premises. Upon entry to the licensed premises, Terminello was greeted by Carl Bilotti who appeared to be leaving the bar at that time. Bilotti told Terminello he could be back in about one hour if Terminello wanted to wait for purposes of purchasing cocaine. Terminello told him he would wait. Following his conversation with Bilotti, Terminello spoke with the cocktail waitress Sandra McQuire asking her if there was any "toot" around, meaning cocaine. McQuire indicated that there was and it would cost $70.00. Terminello followed McQuire into the hallway outside the ladies' room where he handed her a hundred dollar bill and she handed him a plastic wrapped package containing white powder. A few minutes later, Terminello was sitting at the bar when McQuire returned and laid $30.00 in U.S. currency before Terminello stating "thank you very much." This material in the plastic bag which had been provided to Terminello by McQuire was subsequently determined to be cocaine. Terminello was still in the bar area at around 12:30 A.M. on August 23, 1981, and entered into a conversation with the manager of the licensed premises identified a "Anne" later shown to be Anne R. Milotta, also known as Ann Bilotti, the sister of Carl Bilotti. Terminello told Milotta that he felt that her brother Carl Bilotti was inconsiderate in that Terminello had planned to purchase cocaine from Bilotti that night and Bilotti had not come back to the premises. Milotta agreed with Terminello and told him that he could sit in the manager's office with her to have a drink and to wait for her brother to return. Milotta and Terminello went to the manager's office. While in that office, ,Milotta answered the telephone, gave directions to employees, answered questions, was observed to have the keys to the office, and at times was seen tending bar. These managerial activities were further substantiated on a later date based upon Terminello's procurement of a copy of an application which Milotta had made with the City of Hialeah, Florida, for an identification card in which she had listed herself as the "owner-manager of the licensed premises." While in the office with Milotta, she told Terminello that it was too bad that her brother had not yet come back so that Terminello could purchase cocaine. Terminello, during this conversation, indicated to Milotta that he had purchased cocaine from Sandy McQuire, the cocktail waitress, and Milotta stated to Terminello "how 'bout turning me on to a line" and Terminello responded "OK." Terminello removed the cocaine he had received from McQuire and handed it to Milotta. She opened it and tapped out two one and one half inch long "lines" of cocaine on the desk in the office and handed the package back to Terminello. Terminello then watched Milotta ingest one of the lines through her nose using a plastic straw and he in turn simulated that activity. At around 1:15 A.M., on August 23, 1981, Terminello indicated to Milotta that, in view of the fact that Carl Bilotti was not going to appear, he would like to purchase another gram of cocaine to keep him supplied for the upcoming week. Milotta stated she would get McQuire and exited the office and called McQuire in, telling her that Terminello wanted to purchase another gram of cocaine. McQuire indicated that this would not be a problem and removed another packet similar to the first from a large plastic bag she kept on her person. This large bag appeared to have twenty (20) to thirty (30) similar type packets within it. Terminello removed a hundred dollar bill from his wallet and handed it to Milotta who in turn handed it to McQuire. McQuire then reached over Milotta and handed Terminello the packet. Shortly after this exchange, McQuire left the office and Milotta continued in general conversation both in the bar and office area until Terminello left the premises at approximately 1:50 A.M. The second package that McQuire gave to Terminello was subsequently determined to be cocaine. On August 28, 1981, at approximately 10:30 A.M., Terminello went back to the licensed premises to continue the investigation. Upon entering the licensed premises he spoke with Carl Bilotti asking if he had any "toot," meaning cocaine. Bilotti stated that he did and that it would be the same price as usual, $70.00. A few minutes later, Bilotti walked up to Terminello who was sitting at the bar and handed him a plastic zip-lock bag containing white powder and Terminello gave him $70.00 in U.S. currency in exchange. The substance which Terminello had purchased from Bilotti was subsequently determined to be cocaine. A few minutes after the exchange of cocaine and currency, Anne Milotta approached Terminello in the bar area and invited him into the manager's office for a drink. When they entered the office, Milotta told Terminello that she had seen the transaction involving the sale of cocaine between Terminello and her brother and wanted to make sure that Terminello was satisfied with the "product." The conversation continued while Milotta intended her managerial duties of making schedules, and answering the telephone. At approximately 11:00 P.M., Milotta asked Terminello if she could "do a line" of his cocaine, meaning use the material. She indicated that she knew "this coke was as good as all the coke that Carl gets." Terminello complied with her request by handing her the plastic zip-lock bag that he had purchased from Carl Bilotti. She again placed two (2) "lines" of the cocaine on the desk and on this occasion used a twenty dollar bill which had been rolled up as a tool to ingest the cocaine in her nose. Terminello simulated the use of cocaine in her presence. Terminello then left the office and exited the licensed premises. On September 4, 1981, at approximately 9:30 P.M., Terminello went back to the licensed premises. When he entered the premises he spoke with Anne Milotta asking her if her brother had "any shit to sell," referring to cocaine. Milotta invited Terminello into her office indicating that her brother did not have cocaine for sale but that she did. Terminello told her that he wanted one (1) gram. She left the office and returned a few minutes later, at around 9:50 P.M., handing Terminello a piece of plastic wrapping containing white powder. Terminello handed her 580.00 in U.S. currency and she returned $5.00, stating that her price was $75.00. Subsequent analysis of the material which he had received from Milotta revealed the presence of cocaine. While in the office area, Milotta continued to perform managerial duties. As Terminello was preparing to leave the licensed premises on this date, Milotta approached him and gave him an additional $5.00 in U.S. currency stating that she had made a mistake and that a gram should only be $70.00 and that she did not want Terminello to think that she was "ripping him off." This discussion of money referred to the purchase of cocaine. On September 9, 1981, at around 10:10 P.M., Terminello went back to the licensed premises. He took a seat at the bar and waited for the appearance of Carl Bilotti. Bilotti entered the licensed premises at around 10:25 P.M. and Terminello asked him if he was "holding any shit," referring to cocaine. Bilotti stated that he was and that it was the usual price of $70.00. Bilotti and Terminello then went to the manager's office. Bilotti left Terminello in that office, shortly thereafter and following this sequence, Terminello gave Bilotti $70.00 in U.S. currency while in the office in exchange for a white piece of paper folded in four parts which contained white, powder. The analysis of this white powder material revealed cocaine. Terminello and Bilotti stayed in the office for a few minutes discussing general topics and the possibility of a large narcotics purchase in the future. Bilotti told Terminello that he would be better off buying a quarter ounce of cocaine for $425.00 rather than one gram at a time for $70.00. Terminello then left the licensed premises at approximately 10:45 P.M. On September 20, 1901, at approximately 12:15 A.M., Terminello returned to the licensed premises. He undertook a conversation with Carl Bilotti while standing near the outside of the front door. After a short conversation, Bilotti indicated that he had cocaine for sale. A few minutes later while inside the licensed premises, Bilotti waved Terminello into the manager's office where he removed a quantity of white powder from a large plastic bag and placed a small quantity of white powder into a piece of paper on the desk. He then folded the piece of paper and handed it to Terminello who handed Bilotti 570.00 in U.S. currency. This white powder was subsequently determined to be cocaine. At approximately 1:00 A.M., Terminello left the licensed premises. On September 26, 1981, at approximately 12:20 A.M., Terminello, while in the licensed premises, entered into a discussion with Carl Bilotti about a narcotics transaction involving the purchase of cocaine. Bilotti indicated that two (2) ounces of cocaine could be purchased for $1,700.00 an ounce and he stated that the safest place for the transaction to occur would be in the office at the licensed premises. On September 29, 1981, at around 11:15 P.M., Terminello and Carl Bilotti, while in the office at the licensed premises, confirmed a future purchase of two (2) ounces of cocaine. Bilotti explained to Terminello the packaging and adulterating procedures to be used in connection with selling the cocaine. On October 2, 1981, at approximately 12:45 A.M., in the office of the licensed premises, Anne Milotta told Terminello that she was aware of the pending large transaction for the purchase of cocaine between Terminello and Carl Bilotti and that her understanding was that the purchase was to occur later that evening. She further stated that due to her brother's unreliability she would also guarantee that two (2) ounces of cocaine would be in the office by 7:00 P.M. on October 2, 1981. On October 2, 1981, a search was made of the licensed premises in connection with a warrant issued by the Dade County Circuit Court. The search warrant was read to Dorothy Bilotti, a principal in the beverage license. During the course of the search, Cathryne Edmondson, one of the dancer/employees was found in possession of marijuana. On December 2, 1981, Carl Bilotti entered a plea of guilty to five (5) counts of sale of cocaine and five (5) counts of possession of cocaine. He was subsequently adjudicated guilty of the sale of cocaine and adjudication was withheld on the counts of possession of cocaine. These matters were in connection with a court case in the Circuit Court, Dade County, Florida.
Findings Of Fact 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.
The Issue The issue posed for decision herein is whether or not the Respondent's alcoholic beverage license should be suspended, revoked, or otherwise disciplined on the grounds stated in the Notice to Show Cause filed herein dated April 13, 1983.
Findings Of Fact During times material herein, The Chosen Few Motorcycle Club (herein Respondent) held alcoholic beverage License 68-629, Series 2-COP, issued in the name of Walter L. Vann and Leroy M. Allen. The premises is located at 1782 27th Street, Sarasota, Sarasota County, Florida. On April 13, 1983, the Division issued an Emergency Order of Suspension of The Chosen Few Motorcycle Club beverage license together with a Notice to Show Cause charging that employees and patrons of The Chosen Few engaged in numerous controlled substance transactions and use of controlled substances while on the licensed premises. Further, it was alleged that because of such controlled substance sales and use, the premises constituted a public nuisance. Respondent's place of business is well known to the intelligence unit of the Sarasota Police Department as a place where sales of narcotics and their use are conducted inside the premises. This knowledge has been gained from intelligence reports and investigations conducted by undercover agents during the period March 21, 1983, to April 9, 1983. (Testimony of Sarasota Police Department Sergeant Jim Fulton and Beverage Officer Keith Hamilton.) Beverage Officer Hamilton was assigned to an investigation of bars and restaurants in the area of Respondent's tavern during late March and early April, 1983. Officer Hamilton has received detailed training in the detection of controlled substances, including marijuana, and has participated in numerous drug investigations since his employment by the Division as a Beverage Officer. Officer Hamilton is a qualified narcotics investigator and is familiar with the appearance and smell of cocaine and marijuana. At approximately 11:20 p.m. on March 21, 1983, Officer Hamilton entered The Chosen Few and ordered a beer. Officer Hamilton struck up a conversation with an individual who identified himself as a part-time employee of The Chosen Few and went by the street name of "Freak." Freak openly sold to Officer Hamilton a capsule which was later identified by the Florida Department of Law Enforcement (FDLE) crime laboratory as cocaine. Freak transferred the capsule of cocaine in an overt manner from a brown medicine bottle which he had on his person and which contained numerous such capsules to c Officer Hamilton in exchange for $10.00. The item was properly bagged, sealed and receipted by Officer Hamilton, and thereafter submitted to the FDLE crime laboratory. Analyst Anthony Keith Zibernia identified the capsule as cocaine. Prior to analyzing the substance, Analyst Zibernia noted that that capsule, as with all other evidence which comes into the FDLE crime laboratory, was properly taped/sealed and tagged upon submission to the laboratory. (Petitioner's Exhibit 2.) While on the licensed premises of The Chosen Few on March 21, 1983, Officer Hamilton observed the open smoking of marijuana by patrons. Officer Hamilton based his testimony on the aroma of the substance being smoked by the patrons and by the manner in which the cigarettes were being handled and smoked by the patrons. On March 22, 1983, at approximately 9:00 p.m. Officer Hamilton returned to the licensed premises of The Chosen Few and inquired of the on-duty bartender, who identified himself as "Mose," as to the availability of marijuana. Mose advised Officer Hamilton that he could obtain such substance for him and Officer Hamilton in turn gave Mose a $10.00 bill. Mose left from the bar area and went among the patrons of the establishment. Upon his return, he handed to Officer Hamilton, from behind the bar, a manila envelope containing a substance, later analyzed by the FDLE crime laboratory and found to contain cannabis, together with $4.00 in change. The substance purchased from Mose, which Officer Hamilton bagged, sealed, and receipted, was submitted to the FDLE crime laboratory. (Petitioner's Exhibit 1 and testimony of Analyst Anthony Zibernia) Officer Hamilton returned to The Chosen Few premises at approximately 8:00 p.m. on the evening of March 23, 1983. At that time, he inquired of the on-duty barmaid who was then serving alcoholic beverages to patrons as to the availability of marijuana. That barmaid pointed out to Officer Hamilton an individual among the patrons from whom marijuana could be obtained. Officer Hamilton called the patron pointed out by the barmaid over to the bar and inquired as to the availability of marijuana. That individual advised that he had some for sale and thereupon sold, in an overt transaction at the bar, a manila envelope, containing what was later identified by the FDLE crime laboratory as marijuana, in exchange for $10.00. The on-duty barmaid had an unobstructed view of the entire transaction. Following the purchase of the marijuana, Officer Hamilton then purchased from the barmaid a pack of rolling paper and proceeded to roll one marijuana cigarette on the bar in front of the barmaid without objection from her. (Petitioner's Exhibit 3) Officer Hamilton next returned to the licensed premises of The Chosen Few on the afternoon of March 24, 1983, at approximately 3:30 p.m. Officer Hamilton approached the bar and inquired of the on-duty barmaid who was working behind the bar as to the availability of marijuana. She advised Officer Hamilton to check with patrons at the pool table for marijuana. Officer Hamilton, as instructed, inquired as to the availability of marijuana from the patrons and successfully purchased from a patron, in an open transaction, a substance in a manila envelope, later identified by the FDLE crime laboratory as being marijuana, in exchange for $6.00. The barmaid had an unobstructed view of this transaction. Immediately upon the purchase by Officer Hamilton, he observed the barmaid rolling a marijuana cigarette on the bar which she proceeded thereafter to smoke. Based on the manner in which the substance was rolled and the way in which it was smoked, Officer Hamilton concluded that it was, in fact, marijuana. The item purchased by Officer Hamilton on the afternoon of March 24, 1983, was properly bagged, sealed, receipted and, following the submission to the FDLE crime laboratory, was determined by Analyst Anthony Zibernia to contain cannabis. (Petitioner's Exhibit 4.) Officer Hamilton returned to the licensed premises of The Chosen Few at approximately 9:00 p.m. on March 24, 1983, and again observed Mose serving as a bartender. At approximately 9:00 p.m. Officer Hamilton inquired of Mose as to the availability of marijuana. Mose advised he would check and Officer Hamilton gave him $10.00. Mose exited from behind the bar and returned approximately two minutes later to the area behind the bar , transferred to Officer Hamilton over the top of the bar a manila envelope containing a substance, later identified by Analyst Zibernia to be marijuana, with $4.00 in change. The transaction was made in an open manner add the substance purchased by Officer Hamilton was properly bagged, sealed, receipted and submitted to the FDLE crime laboratory. As stated, it was analyzed and found by Analyst Zibernia to contain cannabis. (Petitioner's Exhibit 5) While on the premises of The Chosen Few on the evening of March 24, Officer Hamilton again observed the use of marijuana by patrons on the premises. Such use by the patrons was completely open, without any attempt on the part of the patrons to hide such use. Officer Hamilton next returned to the licensed premises of The Chosen Few on the evening of April 9, 1983 While seated at the bar he inquired of a patron as to the availability of marijuana. The negotiations for the purchase of marijuana were made at the bar in front of the on-duty bartender, who was later identified by Officer Hamilton as one of the licensees, Leroy Allen. The negotiations were carried on in a normal conversational tone immediately in front of Allen. Officer Hamilton purchased from a patron, in an open manner, one clear baggie, later analyzed by the FDLE crime laboratory and found to contain cannabis, in exchange for $6.00. The substance was bagged, sealed, receipted and submitted to the FDLE crime laboratory for analysis by Analyst Anthony Zibernia. (Petitioner's Exhibit 6) Respondent's Defense Respondent presented the testimony of licensees Walter Vann and Leroy Allen. Both licensees testified that they instructed their employees that no drugs were to be used on the premises and instructed those patrons who were observed using marijuana to leave the premises. Licensee Allen could not recall any discussion of marijuana sales by Officer Hamilton, nor could he recall any drugs ever being sold on the premises. Licensee Allen and Mose Williams stated that they "cannot stand the smell of marijuana." Mose Williams denied making any sales of marijuana to Officer Hamilton and "throws out patrons he finds using marijuana." Additionally, like bartender Mose Williams, barmaid Gloria Williams also claims to throw out any patrons she observes using marijuana and denied assisting Officer Hamilton, or any patron in their effort to purchase marijuana at The Chosen Few Motorcycle Club. Rebuttal Petitioner presented the testimony of confidential informant, Harold Sutton. Informant Sutton accompanied Officer Hamilton at The Chosen Few and observed the occasions when Officer Hamilton purchased marijuana from Mose Williams and the on-duty barmaid. Informant Sutton also observed the on-duty barmaid roll and smoke a marijuana cigarette at the bar on March 24, 1983.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's alcoholic beverage license No. 68-629, Series 2-COP, be suspended for a period of one hundred eighty (180) days and that Respondent pay a fine of two hundred fifty dollars ($250.00) for each of seven (7) violations alleged in the Notice to Show Cause filed herein dated April 13, 1983. RECOMMENDED , this 23rd day of June, 1983, at Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1983.
The Issue Whether or not on or about September 28, 1976, one Leouigildo Hernandez, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in his possession, on the aforementioned beverage license premises, a controlled substance, to wit; cocaine, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on or about September 28, 1976, one Leouigildo Hernandez, an agent, servant or employee of the beverage license premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in his possession, with the intent to sell, a controlled substance; cocaine, and whether said cocaine was sold to one E. Santiago, for the price of $100 in U.S. currency, and whether said sale was consummated at the aforementioned beverage license premises, on the aforementioned date, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on or about October 30, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage license premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, on the aforementioned beverage license premises, a controlled substance, to wit; cocaine contrary to Section 893.13, F.S. thereby violating Section 561.29, F.S. Whether or not on or about October 30, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage license premises of Intimo Lounge, Inc. d/b/a Intimo Lounge, did have in her possession, with the intent to sell, a controlled substance, to wit; cocaine, and whether or not said cocaine was sold to one E. Santiago, for the price of $100 U.S. currency, and whether or not said sale was consummated at the aforementioned beverage licensed premises on the aforementioned date, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on November 4 & 5, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, on the aforementioned beverage licensed premises, a controlled substance, to wit; cocaine, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on or about November 4 & 5, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, with the intent to sell, a controlled substance, to wit; cocaine, and whether or not said cocaine was sold to one E. Santiago, for the price of $2,200, U.S. currency, and whether or not said sale was consummated at the aforementioned beverage licensed premises, on the aforementioned date, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. A count seven was originally charged against the Respondent, but that charge was dismissed at the commencement of the hearing. A count eight was originally charged against the Respondent, but that charge was dismissed at the commencement of the hearing. Whether or not on or about November 20, 1976, a bottle of non-tax paid alcoholic beverage, labeled Ron Medeliin Rum, was discovered on the licensed premises, and whether or not said bottle bore no federal strip stamp or any other indication that the lawfully levied federal and/or state taxes had been paid, contrary to Section 562.16, F.S., thereby violating Section 561.29, F.S. Whether or not on or about September 1, 1976, and continuing until on or about November 24, 1976, the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did maintain a public nuisance, to wit; maintain a place where controlled substances were illegally sold, kept or used, contrary to Section 823.10, F.S., thereby violating Section 561.29, F.S. Whether or not investigation revealed that on or about November 20, 1976, the Respondent, its agent, servant, or employee, did remove, deposit, or conceal a beverage, to wit, one (1) 2,000 cc bottle of Ron Medeliin Rum, with the intent to defraud the state of tax, contrary to Section 562.32, F.S. and Section 562.30, F.S., thereby violating Section 561.29, F.S.
Findings Of Fact At all times material to this complaint the Respondent, Intimo Lounge, Inc., d/b/a Intimo Lounge, was the holder of a license no. 23-1901, held with the State of Florida, Division of Beverage, and that license was for the premises located at 1601 Collins Avenue Miami Beach, Florida. The management of the licensed premises makes arrangements to hire entertainment in the form of musicians. This arrangement is made through agreement with the band leader. One of these agreements was made with a band leader who had as his band member Leouigildo Hernandez. On September 28, 1976, Officer E. Santiago, of the Miami Beach, Florida, Police Department entered the licensed premises and while in the licensed premises entered into discussion with Hernandez. Hernandez left the bar proper and came back with an amount of a substance known as cocaine. Santiago paid Hernandez $100 for the quantity of cocaine and the sale was consummated in the licensed premises. On October 30, 1976, Officer Santiago returned to the licensed premises. Santiago had been in the licensed premises many times prior to that occasion. Among the persons he had seen in the bar was Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales. Morales was the girlfriend of Anthony Bilbao, one of the principals in the ownership of the licensed premises. Morales had also served Santiago drinks in the bar on more than 50 occasions. On the evening in question, October 30, 1976, discussion was entered into between Santiago and Morales about the purchase of a substance known as cocaine. Morales produced a quantity of the cocaine and reached across the bar that she was standing behind and handed the quantity of the substance cocaine to Santiago, who was in the area where customers were served at the bar. Santiago paid her $100 for the cocaine. In the late hours of November 4 and early hours of November 5, 1976, Santiago again entered the licensed premises, his purpose for going to the licensed premises was to purchase a large quantity of cocaine from Morales. This arrangement had been entered into based upon the sample of cocaine that had been provided him on October 30, 1976. Morales left the licensed premises and returned 3 to 5 minutes later with a quantity of cocaine, for which Santiago paid her $2,200. On one of the above occasions of a purchase of cocaine from Morales, while in the licensed premises, Morales had conferred with Anthony Bilbao. In the course of that conference, Bilbao told Morales to be careful to whom she sold because "you don't know him", meaning Santiago. In the course of an investigation in the license premises on November 28, 1976, a bottle of non-tax-paid alcoholic beverage, labeled Ron Medeliin Rum, was discovered in the licensed premises, which bore no federal strip stamp or any other indication that the lawfully levied federal and/or state taxes had been paid. The size of the bottle was 2,000 cc.
Recommendation Based upon the violations as established in the hearing on the notice to show cause, it is recommended that the license no. 23-1901 held by Respondent, Intimo Lounge, Inc., d/b/a Intimo Lounge, be revoked. DONE AND ENTERED this 24th day of February, 1977, in Tallahassee ,Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Michael B. Solomon, Esquire Division of Beverage Theodore M. Trushin, Law Office The Johns Building 420 Lincoln Road, Number 600 725 Bronough Street Miami Beach, Florida 33139 Tallahassee, Florida 32304 Nathaniel Barone, Esquire 777 N.E. 79th Street Miami, Florida 33138
The Issue A notice to show cause dated February 21, 1990, alleges that Respondent licensee sold beer to a person under the age of 21 on three occasions. The issue for determination is whether those allegations are true, and if so, what discipline is appropriate.
Findings Of Fact At all times material, Respondent, Convenience Alley, Inc. held alcoholic beverage license number 15-019272-APS, for the premises located at 5020 Minton Road NW, Palm Bay, Brevard County, Florida. On Saturday April 29, 1989, at the request of the City of Palm Bay Police Department, the Division of Alcoholic Beverages and Tobacco (DABT) participated in a joint operation with the Palm Bay police and the City of Melbourne police. The law enforcement agencies had received a series of complaints regarding the sale of alcohol to minors in the Palm Bay area. In the early evening, sometime between 6:00 p.m. and 7:00 p.m., Amy Dvorak, a 17-year old underaged operative working with Sgt. Gordon Myers, an investigator with DABT, entered Respondent's licensed premises and purchased a sealed 6-pack of Budweiser beer from the clerk, Lisa McCormick. The clerk did not ask Ms. Dvorak's age and did not request her identification. Like all other underaged operatives working with DABT, Ms. Dvorak had parental permission to participate. She wore light makeup and appeared to be under 21 years of age at the time of the operation. She was casually dressed and her face and hair were fully exposed. Ms. Dvorak was instructed to carry legitimate identification and to produce it, or respond truthfully if requested. Convenience Alley is primarily a drive-through establishment where most customers are served while they wait in their automobiles. There is a walk-in entrance, however, and Ms. Dvorak made her purchase on foot. After exiting the premises, she gave the beer to the waiting law enforcement officers. The evidence was marked and placed in the inventory of the Palm Bay Police Department, where it was later destroyed in accordance with the department's policy of destroying evidence that is over one year old. Palm Bay Police Department property report #89-08883, maintained by Officer P. Scholem, documents the disposition of the 6-pack of beer. Melbourne Police Detective Ronald King observed the sale to Ms. Dvorak. Afterwards he approached the clerk, Lisa McCormick, under direction of Palm Bay Police Detective Paul Scholem and arrested her for unlawful sale to a minor. On May 3, 1989, Sgt. Myers mailed an "official notice" to the licensee, Convenience Alley, stating that the arrest had been made and warning that future violations could result in a charge against the license. On November 21, 1989, around 6:50 p.m. Sgt. Myers revisited Convenience Alley with another underage operative, James Core, Jr. As Sgt. Myers stood outside in the shadows, the youth drove through in his own vehicle and purchased a 6-pack of Budweiser beer. James Core was 19 years old and was attending the local police academy at the time. He was clean-shaven and looked his age. As he made the purchase, the clerk laughingly said to him, "Shouldn't I be checking your I.D.?" He responded, also in a joking manner "Yes, ma'am." Nothing more was said, and Core did not offer his license. After the purchase, James Core drove into the parking lot and gave Sgt. Myers the beer and change from the $10.00 he had been given for the purchase. Sgt. Myers went into the establishment and issued an arrest citation to Valerie Britts, the clerk. DABT sent Convenience Alley a notice, titled "Final Warning" dated November 27, 1989, stating that the next violation would subject the licensee to formal revocation or suspension proceedings. On February 7, 1990, Sgt. Myers returned to Convenience Alley with George Madden, a 20 year old recruit from the police academy, also clean shaven and casually dressed. George Madden drove through in his own vehicle with two beverage agents behind him in their vehicle. He asked for the 6-pack of Budweiser. The clerk returned with the beer and asked for his identification. Madden showed his driver's license; the clerk looked at it and sold him the beer. George Madden's birthdate is 11/30/69. His driver's license reflects this, and is stamped "Under 21", across the front. The stamp, however, obscures one digit of the 11, making his birthdate appear, without close scrutiny, to be 1/30/69. The clerk, Keith Wayne Lewis, read the birthdate as January. Since the incident occurred in February 1990, Lewis figured his customer had just turned 21, notwithstanding the stamp and yellow background on the photograph. A few minutes after the sale Sgt. Myers arrested Lewis. On February 8, 1990 Sgt. Myers sent Convenience Alley a notice of intent to file a notice to show cause, citing the recent, as well as two previous arrests of employees. On each occasion noted above, the store and drive through area were well-lit. The three operatives were appropriately trained and none appeared old beyond his or her years. None had been in the premises before. The DABT has written policies and procedures, dated July 1, 1989, governing the investigation of sales to minors and the use of underage operatives. The agency generally will not proceed against a licensee until there have been three violations, unless the licensee (owner) is on the premises making the sale or observing it. The policy guide suggests that the second sale should be on a different date, time or shift than the first, and within three to eight weeks after the official notice has been issued to the licensee. The third sale should be on a still different date, time or shift than the first two sales, and within three to eight weeks after the letter of final warning has been received by the licensee. The three sales in this case do not conform to those written guidelines. Instead of three sales over a period of approximately two months, this case involves three illegal sales in approximately ten months. Linda Beard is the Vice-president/Secretary and part owner of Convenience Alley, Inc. Her sister-in-law, Barbara Thomas is Treasurer and part-owner. A third owner, Terry Loy, is President and is unrelated. None of the owners was on the premises at the time of the sales which are the subject of this proceeding. The licensee owns only this one location. One of the two women works at the store every day and closes up the premises every night. Respondent did not provide formal training to its employees in the past, but now administers the "responsible vendor" test, which it obtained in March, after the third violation. The store has always had a sign near the cash register facing the clerks, reminding them to check ID's and giving the birthdates by which persons may legally purchase alcohol and tobacco. After the first violation, Linda Beard requested that DABT send her a poster explaining the new format for driver's licenses adopted on July 1, 1988. The poster was sent, but it was a black and white photocopy, and arrived in an envelope with $.10 postage due. The agency provides such aids to licensees as a courtesy. Sgt. Myers offered training to Convenience Alley's employees, but Linda Beard felt that since they were primarily part-time, it would be difficult to schedule the training, so she did not take advantage of the offer. Instead she relied on careful recruiting. The employees were only hired on good recommendations. Keith Lewis, for example, had experience in other convenience stores and is the son of a local police officer. She also admonished the employees to check IDs and warned that no sale is worth an arrest or the loss of a license. The owners now use a colored poster to train the clerks themselves. They also point out to the employees how difficult it is to read the birthday with the "Under 21" stamp superimposed.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That a final order be entered dismissing the February 21, 1990 notice to show cause. DONE and RECOMMENDED this 8th day of October, 1990, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1990. APPENDIX The following constitute rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraphs 3-5. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 14. Adopted in paragraph 7. Adopted in substance in paragraph 18. Rejected as immaterial. Respondent obtained the poster. and 11. Adopted in paragraph 8 and 9. 12. and 13. Adopted in paragraph 14. Adopted in paragraph 9. Rejected as unnecessary. and 18. Adopted in substance in paragraph 11. Rejected as unnecessary. Adopted in paragraph 14. Adopted in paragraph 13. Rejected as unnecessary. Adopted in part in paragraph 12. The date is legible if the observer is looking for second digit; it is not in plain sight. and 25. Rejected as unnecessary. Adopted in paragraph 16. Adopted in paragraph 14. Rejected as cumulative and, as to non-misleading actions, contrary to the weight of evidence. No one lied and each operative followed the specific instructions. However, Operative Core's response was, in the context, sufficiently ambiguous as to mislead the clerk. Respondent's Proposed Findings of Fact ["Point 2"] Rejected as unnecessary. ["Point 3"] Rejected as unnecessary. ["Point 8"] Adopted in substance in paragraphs 17 and 18. ["Point 11"] Adopted in part, as to the response, in paragraph 9, otherwise rejected as unsupported by the evidence. Petitioners were not "out to get" Respondents, according to the evidence in this case. and 6. ["Point 16" and "Point 24"] Rejected as unnecessary. ["Point 26"] Adopted in paragraph 16. and 9. ["Point 33" and "Point 37"] Rejected as unnecessary, except as addressed in paragraphs 12 and 15. COPIES FURNISHED TO: Robin L. Suarez Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Linda J. Beard, Vice-President/Secretary Convenience Alley, Inc. 5020 Minton Road, N.W. Palm Bay, FL 32907 Joseph Sole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Leonard Ivey, Director Dept. of Business Regulation The Johns Building 725 S. Bronough St. Tallahassee, FL 32399-1000
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the stipulations of the parties, the documentary evidence presented and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent, Ceola Virginia Cutliff is the holder of Alcoholic Beverage License No. 23-06844, Series 2-COP, for a licensed premises known as Club Night Shift, located at 6704 N.W. 18th Avenue, Miami, Dade County, Florida. On or about September 18, 1987, Division of Alcoholic Beverages and Tobacco (DABT) Investigators R. Campbell, R. Thompson and C. Houston entered the licensed premises as part of an ongoing narcotics task force investigation. An individual named "Frances" was on duty at the bar. The investigators observed Frances sell what appeared to be narcotics to several patrons on the licensed premises. At approximately 7:50 p.m., Investigator Houston approached Frances and asked to purchase narcotics. Frances and Investigator Houston then went to the rear of the bar where Frances sold 2 pieces of "crack" cocaine to Investigator Houston for $10.00. Approximately fifteen minutes later, Investigator Campbell asked Frances if he could purchase narcotics. Frances presented a piece of rock cocaine which Investigator Campbell purchased for $5.00. This transaction took place in plain view of other individuals in the licensed premises. Frances, upon making a sale, would take the money and give it to a black male called "Spider" a/k/a Arthur Dorsey. Spider would then retain the money. On September 19, 1987, Investigators Houston and Thompson again entered the licensed premises known as Club Night Shift. On duty that night, was a black female known as "Josephine". Spider was also on the licensed premises positioned in the D.J.'s booth, apparently trying to fix a speaker. Houston and Thompson had observed a black male, named "Gary", exchanging an unknown substance for money with various individuals, immediately outside the licensed premises. Gary, upon receiving money in exchange for the unknown substance, would go into the licensed premises and hand the money to Spider. Later that evening, Investigator Houston noticed that Spider had a brown paper bag in his hand. Gary and Spider proceeded to the bathroom on the licensed premises. After exiting the bathroom, Gary left the premises and Spider went behind the bar and began counting a large amount of money onto the counter of the bar. Spider placed the money in his back pocket. Investigator Thompson then inquired whether Spider could sell him some crack cocaine. Spider acknowledged that he could and proceeded with Thompson to the rear of the bar, where Spider sold Thompson 20 pieces of rock cocaine for $100.00. On September 22, 1987, Investigators Houston and Thompson again entered the licensed premises known as Club Night Shift. Bartender Josephine-was on duty at that time along with another black female known as "Niecey". When the investigators inquired as to the whereabouts of Spider, Niecey replied that "he went home to cook up the stuff because they were very low on supply." Niecey reiterated the above statement on numerous occasions when individuals would enter the bar searching for Spider. At approximately 10:30 p.m., Spider appeared on the licensed premises with a brown paper bag in his possession. Patrons that had been waiting outside the premises came inside and Niecey locked the doors to the front and rear exits of the bar. Spider went to the D.J.'s booth and pbured the contents of the paper bag onto the counter inside the booth. The bag contained approximately 200 small zip-lock bags containing suspected crack cocaine. The patrons who had been waiting outside for the arrival of Spider then proceeded to line up in front of the D.J.'s booth in order to make purchases. Niecey would take the money from the individual patrons and Spider would deliver the crack cocaine. Investigator Houston got in line and upon arriving at the booth, purchased 20 packets of crack cocaine from Spider in exchange for $100.00. These transactions took place in plain view on the licensed premises. On September 23, 1987, Investigators Houston, Thompson and Campbell entered the licensed premises known as the Club Night Shift. The barmaid on duty was Josephine. Spider was positioned in the D.J.'s booth making sales to patrons of what appeared to be crack cocaine. Investigator Campbell walked over to the D.J.'s booth and asked to purchase ten (10) pieces of crack cocaine from Spider. Approximately 200 zip-lock packets of suspected crack cocaine were positioned in front of Spider. Spider motioned for Campbell" to pick them out." Campbell then picked out ten (10) packets in exchange for $50.00 which he gave to Spider. This transaction occurred in plain view of other individuals on the licensed premises. Before leaving Spider went behind the bar, obtained a .357 magnum pistol, placed it inside his pants and exited the premises. On September 29, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. The bartender on duty was Josephine. Shortly after the investigators arrived, Spider appeared on the premises and went behind the bar where he took a pistol from inside his pants and placed it under the bar counter. Spider then removed a brown paper bag from under the bar counter and went to the D.J. s booth. Investigator Thompson proceeded to the D.J.'s booth and asked to purchase two (2) large pieces of crack cocaine. Spider reached into the bag and gave Investigator Thompson two (2) large pieces of crack cocaine in exchange for $100.00. On October 3, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. Investigator Campbell approached an unknown black male who Campbell had seen selling narcotics on prior occasions. Campbell made inquiries relative to the purchase of cocaine and the unknown black male indicated that he could sell Campbell crack cocaine. The unknown male then gave two five dollar ($5.00) pieces of crack cocaine to Investigator Campbell in exchange for $10.00. This transaction took place in plain view on the licensed premises. On October 6, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. Shortly after the investigators arrived, they observed Spider on the premises selling crack cocaine to patrons from the D.J.'s booth. Subsequently, Investigator Thompson went to the D.J.'s booth and asked to purchase twenty (20) pieces of crack cocaine. In response thereto, Spider left the licensed premises and proceeded to a pickup truck parked outside. Spider then retrieved a brown paper bag from the vehicle, returned to Investigator Thompson and handed him twenty (20) pieces of crack cocaine in exchange for $100.00. The substance purchased on this occasion was laboratory analyzed and found to be cocaine. The Respondent licensee admitted to being an absentee owner. The Respondent did not maintain payroll, employment or other pertinent business records. The licensee was aware that drugs were a major problem in the area surrounding the premises and that drug transactions were known to take place immediately outside of the licensed premises. The licensee did nothing to prevent the incursion of narcotics trafficking onto the licensed premises. The licensee, CeoIa Cutliff, is engaged to Arthur Dorsey. Ms. Cutliff gave Mr. Dorsey a key to the premises and knew or should have known that he was operating in the capacity of a manager on the licensed premises. Josephine, the bartender generally on duty, referred to Mr. Dorsey as "boss man" and Mr. Dorsey directed her activities in the licensed premises. Mr. Dorsey a/k/a Spider utilized the licensed premises as if they were his own and was operating in the capacity of a manager at the Club Night Shift.
Recommendation Based upon the foregoing, it is recommended that Respondent's beverage license 23-06844, Series 2-COP, located in Miami, Dade County, Florida, be revoked. DONE and ORDERED this 12th day of November, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4482 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in substance in Finding of Fact 1. 2. Adopted in substance in Finding of Fact 2. 2. (Petitioner has two paragraphs numbered 2) Adopted in substance in Finding of Fact 3. 3. Adopted in substance in Finding of Fact 4. 4. Adopted in substance in Finding of Fact 5. 5. Adopted in substance in Finding of Fact 6. 6. Adopted in substance in Finding of Fact 7. 7. Adopted in substance in Finding of Fact 8. 8. Adopted in substance in Finding of Fact 9. 9. Adopted in substance in Finding of Fact 10, 11 & 12. Rulings on Proposed Findings of Fact Submitted by the Respondent (None Submitted). COPIES FURNISHED: W. Douglas Moody, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 R. Scott Boundy, Esquire 901 E. Second Avenue Miami, Florida 33132 Honorable Van B. Poole Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Bell, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Daniel Bosanko Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether respondent's alcoholic beverage license should be disciplined on grounds that (1) illicit drugs were sold and delivered on its premises by its agents and employees, and (2) its premises was used for the selling and delivery of illicit drugs.
Findings Of Fact Butch Cassidy's Saloon Licensee, 1431 Corporation, owns a business known as Butch Cassidy's Saloon located at 1431 North Federal Highway, Dania, Florida. In connection with its operation of Butch Cassidy's, Licensee holds alcoholic beverage license No. 16-02422 series 2-COP. Under this license, Licensee sells beer and wine for on-premises consumption. Soft drinks and sandwiches are also served. The entertainment consists of female nude dancers who perform to juke box music. Licensee is owned by Don Austin and George Sherman. Austin and Sherman operate and manage Butch Cassidy's Saloon; they alternate work shifts so that, except for short temporary absences, one or the other is always on the premises. The premises contain a bar, a stage and runway for the female dancers, two dressing rooms, a business office, and rest rooms. It is dimly lit, though not completely dark; the lighting is most pronounced above the pool tables and along the length of the dance stage. II. Sale or Delivery of Controlled Substances on Premises On August 10, 1981, at approximately 11:30 p.m., Beverage Officer L. Terminello entered Butch Cassidy's Saloon ("the premises") with a confidential informant. After sitting at the rear of the premises, he asked "Connie," a female dancer employed by Licensee, if she' could sell him some quaalude tablets; she answered affirmatively. Several minutes later, she returned and handed him five tablets; he paid her $15. Subsequent laboratory analysis of the tablets by the Broward County Sheriff's Office revealed the presence of diazepam. (Testimony of Terminello; P-16.) On August 12, 1981, at approximately 9:40 p.m., Officer Terminello again entered the premises and sat at a table at the rear. After some initial conversation, a customer known as "Jerry" asked him if he would buy some ludes"; Terminello agreed. Jerry placed the tablets on Terminello's table. Terminello picked them up and gave him $3 for each tablet. Subsequent laboratory analysis of the tablets revealed the presence of diazepam. (Testimony of Terminello; P- 15.) Later on that evening (August 12, 1981), Connie, in response to Officer Terminello's request, sold him another quaalude tablet for $2. The transaction took place, again, at a table located opposite the stage, at the rear of the premises. Subsequent laboratory analysis of the tablet revealed the presence of diazepam. (Testimony of Terminello; P-17.) On August 15, 1981, at approximately 11:30 p.m., Officer Terminello again entered the premises and sat at a table at the rear. He asked a female dancer known as "Dusty" (who was employed on the premises) whether she had any cocaine or quaaludes. She said she had none but offered, instead, a marijuana cigarette which she took from her pocketbook and handed him. He left her a tip of $1 for the cigarette. This drug transaction occurred in the vicinity of the pool table, an area which is well-lighted in relation to other parts of the premises. Subsequent laboratory analysis of the cigarette confirmed that it contained cannabis. (Testimony of Terminello; p-18.) On August 19, 1981, at approximately 10:40 p.m., Officer Terminello reentered the premises and sat at another table in the vicinity of the pool table. He again asked Dusty, a female dancer, if he could buy some cocaine. She said he might be able to purchase some from "Don," the doorman, but that he sold a lot of cocaine by "stepping on it"--a street term for cutting cocaine. She told him that another dancer, known as "Renee," could provide better cocaine; he decided to wait for Renee. While waiting, he asked Dusty if she would sell him some quaalude tablets; she agreed and delivered two tablets to him at his table. He paid her $3 each. Subsequent laboratory analysis of the tablets revealed the presence of diazepam. (Testimony of Terminello; P-19.) Dusty then asked Terminello if he wanted to smoke a "joint," meaning a marijuana cigarette. They then walked outside to the parking lot and smoked the cigarette. Subsequent laboratory analysis indicated that the cigarette contained cannabis. (Testimony of Terminello; P-20.) Later that evening, at about 1:00 a.m., Officer Terminello returned to the premises and contacted Dusty for the cocaine promised earlier. Dusty went over and talked to Renee, then returned to Terminello's table near the pool table. She told him that the cocaine would cost $80. He handed her $80 which she placed in her pocketbook. Shortly thereafter, she returned from a dressing room and handed him a plastic bag containing white powder. This exchange took place in an area where there were 15-20 patrons; several of them were 2-3 feet from Terminello. Subsequent laboratory analysis of the powder revealed the presence of cocaine. (Testimony of Terminello; P-21.) A short time later, Renee asked Officer Terminello if he wanted to purchase more cocaine; he replied that he would buy another one-half gram. After completing her performance on the dance floor, she agreed to sell him one- half gram for $40. At her request, he placed $40 in her garter belt; shortly thereafter, she returned from the dressing room and handed Terminello a white zip-lock bag of white powder. This transaction took place in a relatively well- lighted area, with a clear line-of-sight to the dance stage and bar. Subsequent laboratory analysis of the powder revealed the presence of cocaine. (Testimony of Terminello; P-22.) Officer Mike Berk of the Broward County Sheriff's Office entered the premises (with Terminello) at approximately 12:30 a.m., on August 20, 1981. After sitting at a table near the dance stage, he asked a female dancer (employed by Licensee) known as Robin" if he could buy some quaaludes; she handed him one white tablet. This exchange took place in a relatively well- lighted area of the bar. Subsequent laboratory analysis of the tablet revealed the presence of diazepam. (Testimony of Berk; P-23.) On August 29, 1981, at approximately 11:45 p.m., Beverage Sergeant George Miller entered the premises, sat at a table near the dance stage, and asked a female dancer (employed by Licensee) known as "Jackie" if she could get him some quaaludes. She asked him to wait. Approximately an hour later, she indicated that she could obtain some quaaludes; she approached the bartender (employed by Licensee) known as "Rusty." He removed a tablet from his pocket, laid it on the bar, and cut it in half. He handed one-half of the tablet to Jackie who returned to the table and handed it to Miller. Subsequent laboratory analysis ,of the one-half tablet revealed the presence of diazepam. (Testimony of Miller; P-24.) On September 2, 1981, Sergeant Miller reentered the premises, sat at a table near the dance stage and was joined by a female dancer (employed by Licensee) known as "Candy." From her seat, she shouted to Dusty, the bartender (who was approximately 10 feet away) : "Make some calls for some ludes, I want to get f cked up." (Testimony of Miller.) On September 10, 1981, at approximately 8:15 p.m., Beverage Officer Mike Imperial entered the premises, sat at the bar and asked Connie (a female dancer) if there were any "ludes" around. She replied that she didn't know but she would check. She then asked Jackie who, in turn, said she would check with "Ann," another female dancer employed by Licensee. Jackie then returned and said that no one had any quaaludes. Connie then told Imperial that she would be off-duty the next day but that she would leave six quaaludes for him with Tom, the bartender. She then told the bartender that she would leave something with him to give to Imperial (and his companion) the next day. (Testimony of Imperial.) The next day, September 11, 1981, at approximately 7:20 p.m., Officer Imperial reentered the premises and spoke with Tom, the bartender. Tom told him that Connie had not arrived yet, that he would check around the bar but that he doubted anyone had quaaludes because it was too early. Imperial then departed the premises. (Testimony of Imperial.) The next day, September 12, 1981, at approximately 7:00 p.m., Officer Imperial (accompanied by a confidential informant) returned to the premises. They sat at the bar, where Tom, the bartender, told them that the quaaludes were not then available but would be there soon. Shortly thereafter, Tom went to the rest room, then returned to the bar and handed Imperial ten white tablets wrapped in a bar napkin. Tom then handed the informant (who accompanied Imperial) a loose tablet and openly stated, "Here's one for the road." Subsequent laboratory analysis of the tablets revealed the presence of methaqualone. (Testimony of Imperial; P-25.) On September 23, 1981, at approximately 8:30 p.m., Beverage Officer Imperial (with his confidential informant) reentered the premises, sat at the bar, and asked a female dancer (employed by Licensee) known as "Gail" if there was any "pot" around. She replied that she would see if she could find him some; later, she returned and handed the confidential informant two cigarettes. Subsequent laboratory analysis of the cigarettes revealed the presence of cannabis. (Testimony of Imperial; P-26.) On September 28, 1981, at approximately 4:10 p.m., Officer Imperial reentered the premises and sat at the bar. He observed an unidentified female dancer (employed by Licensee) approach Tom, the bartender, and ask if he had a "joint." Tom replied that he had one, then removed a partially smoked cigarette from his wallet and handed it to the dancer. She placed it in her mouth and asked him for a light; he replied, "Don't do that here, I'm already on probation." The dancer then departed, saying that she would smoke it in the dressing room. Several patrons were nearby when this exchange took place. (Testimony of Imperial.) III. Open, Persistent, and Recurring Nature of Illicit Drug Activity on the Premises The illicit drug transactions described were open, persistent, and recurring; they took place in fairly well-lighted areas of the premises. The actions of Licensee's employees who engaged in such activities can fairly be described as practiced and routine. When undercover law enforcement officers asked for illicit drugs, the employees actively cooperated in an effort to accommodate them. The drug activity on the premises was not isolated or limited to one or two employees; it was pervasive during the evening hours, involving at least six different employees or agents. Drugs were either available on the premises or readily obtainable. During the course of the two-month investigation, at least ten illicit drug transactions took place on the premises. (Testimony of Terminello, Imperial, Berk, Miller.) However, no evidence was presented which established that, during the time in question, illicit drugs were actually used on the premises. Several customers testified that they had never seen anyone selling, buying, or using drugs on the premises, that no one had ever approached them attempting to buy or sell drugs. 2/ (Testimony of Leighton, Redgate, Johns, Smith, Bushmann.) George Sherman and Don Austin, owners and operators of the bar, testified that they had a policy against the use or sale of drugs on the premises; that they advised new employees of this policy, posted a sign in the dressing room restating the policy, 3/ and fired employees who violated it. However, the practiced and recurring nature of the drug transactions demonstrates that their anti-drug policy was not diligently and aggressively implemented. The drug transactions took place in a relaxed atmosphere of permissiveness. The employees made little effort to conceal the transactions; drug use was openly discussed and joked about. Neither George Sherman nor Don Austin were personally involved in any of the drug transactions in question. However, they failed to aggressively monitor and supervise their employees; they failed to effectively emphasize that drug activity on the premises would not be tolerated. Their lack of diligence in this regard allowed their employees to develop an attitude which fostered illicit drug activity on the premises. (Testimony of Sherman, Austin, Terminello, Berk, Miller, Imperial.) The open, persistent, and practiced nature of the drug transactions on the premises supports an inference that, if Austin and Sherman did not know that they were occurring, they should have known with the exercise of reasonable diligence. (Testimony of Terminello, Berk, Miller, Imperial.) During the 4 1/2 years it has operated the premises, the Licensee has not been found guilty of violating the beverage law or any other law of this State. (Testimony of Sherman, Austin.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division of Alcoholic Beverages and Tobacco suspend respondent's beverage license for 120 days. DONE AND RECOMMENDED this 23rd day of December, 1981, 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 23rd day of December, 1981.
