The Issue Whether or not on or about May 11, 1979, on his licensed premises, Albert Parrish, while being directly in charge of these premises, did unlawfully permit persons to play games of dice and cards for money, in violation of Section 849.01, Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about June 1, 1979, in his licensed premises, the Petitioner, Albert Parrish, did unlawfully maintain a house, booth, tent, shelter or other place, to wit: The Red Honey, 835 East Brownlee Street, Starke, Bradford County, Florida, for the purpose of gaming or gambling, in violation of Section 849.01, Florida Statutes, and Section 561.29, Florida Statutes.
Findings Of Fact This cause comes on for consideration based upon a Notice to Show Cause (Administrative Complaint) filed by the State of Florida, Division of Alcoholic Beverages and Tobacco, against Albert Parrish who trades as the Red Honey in a licensed premises located at 835 East Brownlee Street, Starke, Bradford County, Florida. The Respondent, Albert Parrish, is the holder of license No. 14-69, Series 2-COP, which allows the Respondent to sell beer and wine at the aforementioned premises. The State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida charged with the duty to regulate those persons and other entities who hold beverage licenses within this state and it is in keeping with that charge that the Notice to Show Cause (Administrative Complaint) has been brought against the Petitioner, Albert Parrish, for the offenses as set out in the Issues statement of this Recommended Order. The Respondent has contested those allegations and the case has been considered in accordance with Subsection 120.57(1), Florida Statutes. On May 11, 1979, Beverage Officer Phyllis Williams, in the company of Columbia County, Florida, Sheriff's Officer Oliver Lake went to the licensed premises in Starke, Florida. After entering the licensed premises, they stayed for a period of one to one and one-half hours, during which time the Respondent, Albert Parrish, was present. In this sequence of time Albert Parrish was located at a pool table found in the licensed premises and a number of other persons were at the pool table rolling dice, which is a game of chance. Money was being placed on the table by the players and Parrish was picking up money from the table and placing it in a box which was in his custody and control. Parrish was in charge of the dice game to the extent of being an active participant and receiving financial benefit and to the extent of allowing other persons to play the dice game. While Officers Williams and Lake were in the licensed premises on May 11, 1979, they also observed a card game being played and this went on for some forty-five minutes. The game being played was a game known as "Tunk" which on this occasion was being played with wagered money pieced on the table. The Respondent, Parrish, was not directly participating in the card game, in that he was running the dice game at a separate location within the licensed premises; however, the person who appeared to be in charge of the "Tunk" card game was seen to pass an item to Parrish during the course of the time in which the officers were in the licensed premises. Therefore, although Parrish did not actively participate in the card game, he did unlawfully permit other persons to participate in the card game in his licensed premises. On June 1, 1979, Beverage Officer James Bates went back to the licensed premises in Starke, Florida. On this occasion, Bates observed a number of persons around a pool table and Parrish standing next to the pool table and a dice game being played. Two dice were being thrown and money was being wagered. Parrish was in charge of the dice game to the extent that wagers of money would be placed and Parrish would put a playing card on top of the money and then when a winner had prevailed, Parrish would pay off that winner. Bates observed the fact of this activity for approximately two hours and Parrish remained at the pool table for the entire period of time. Bates also observed an individual who was acting as a lookout and when police cars would pass by, the lockout would give a warning and all of those persons in the licensed premises would step away from the pool table until the police car had left the area of the licensed premises, at which time the game would be resumed.
Recommendation It is recommended that the Respondent, Albert Parrish, have his beverage license No. 14-69, Series 2-COP, suspended for a period of ninety (90) days. DONE AND ENTERED this 18th day of December, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Daniel C. Brown, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Albert Parrish t/a Red Honey 835 East Brownlee Street Starke, Florida ================================================================= AGENCY FINAL ORDER =================================================================
The Issue The issue is whether Respondent accessed two slot machines without logging the purposes for opening the machines, in violation of Florida Administrative Code rule 61D-14.023(2), as in effect in March and April 2010.
Findings Of Fact At all material times, Respondent has been employed as a licensed slot machine technician with Isle of Capri. A slot machine technician maintains and repairs slot machines. Respondent holds a slot machine professional individual occupational license, bearing license number 7463121-1051. As relevant to this case, a locked main door provides access to the main compartment of the slot machine. Inside the main compartment of the slot machine is the MEAL book for logging all openings of the main compartment. Within the main compartment also is a locked logic compartment, which contains the computer chip that controls the operations of the slot machine. The logic compartment is also secured by a special tape that is broken whenever someone accesses the logic compartment. Within the main compartment also are a coin hopper, which holds coins that are available for payouts, as well as a locked drop box or billbox, which holds coins and bills that are collected periodically by the drop team. Although it is not entirely clear, a belly door apparently permits access to the drop box or billbox without going through the main compartment. Several times weekly, a drop team enters each slot machine, through the belly door, to empty the drop box or billbox. On March 28, 2010, and April 2, 2010, Respondent entered the main compartments of two slot machines in connection with his employment. The MEAL book for each machine was available inside the machine to log the activity. On these occasions, Respondent did not enter the logic compartments of these two slot machines. On each of these occasions, Respondent logged the times in and out of each slot machine, but failed to log the purpose for his entering each machine. For the March 28 activity, 24 other entries are shown on the same page of the MEAL book, and all 24 report the times in and out and the reasons why the persons entered the machines. For the April 2 activity, five other entries are shown on the same page of the MEAL book, and all five report the times in and out and the reasons why the persons entered the machines. Isle of Capri determined that Respondent's failure to log reasons for entering the slot machines on March 28 and April 2 violated Isle of Capri policies. The resulting "performance document" notes that Isle of Capri had previously counseled Respondent for similar failures to make the required entries in MEAL books. The "performance document" states that Isle of Capri will retrain Respondent, but a repeat of this conduct may result in termination. As required by the performance document, to reflect understanding of the issues discussed in the document, Respondent signed the document, but did so "under protest." On November 6, 2009, Petitioner sent Respondent a "warning letter." The letter explains that, on October 20, 2009, Respondent failed to complete the MEAL book with the time in and out of a specific slot machine. The letter states that this conduct violates rule 61D-14.024, which requires a log of logic compartment door openings and closings so as to include the time and reason for the opening. The letter warns that any future violations of slot machine laws or rules could result in an administrative fine or suspension or revocation of Respondent's slot machine occupational license. On February 5, 2010, Petitioner sent Respondent a "warning letter." The letter explains that, on November 26, 2009, Respondent failed to complete the MEAL book with the time in and out of a specific slot machine. The letter states that this conduct violates rule 61D-14.023(2). The letter warns that any future violations of slot machine laws or rules could result in an administrative fine or suspension or revocation of Respondent's slot machine occupational license. Respondent offered multiple defenses, including entrapment (never explained) and unfairness (the drop team is not required to log their openings of the belly door). The lone relevant defense was that Respondent had entered the main compartment, not the logic compartment, as Count I charged. It was apparent to the Administrative Law Judge, however, that Respondent recognized this to have been a pleading error by Petitioner, and Respondent was not prejudiced by the Administrative Law Judge's allowing Petitioner to amend the Administrative Complaint to substitute "main compartment" for "logic compartment." Two important mitigating factors apply. As testified by the Isle of Capri general manager, electronic monitoring of all entries into the slot machine has rendered the rule obsolete. Likely for this reason, the current version of rule 61D-14.023 no longer contains the requirement set forth in former rule 61D-14.023(2). On the other hand, nothing in the record suggests that Respondent relied on the proposed changes to rule 61D-14.012 when he failed to record the reasons for entering the main compartment on two occasions in the spring of 2010. After observing Respondent testify, the Administrative Law Judge finds that Respondent tends to view himself as the final arbiter of the rules that govern licensed slot machine technicians. Respondent's obstinacy, recent past problems in documenting the servicing of secured areas of slot machines, and commission of two violations (although in a single count) militate in favor of a fine that will refocus Respondent's attention on the critical, well-defined role that he plays within a sensitive, carefully regulated industry.
Recommendation It is RECOMMENDED that the Division of Pari-Mutuel Wagering enter a final order dismissing Count II of the Administrative Complaint, finding Respondent guilty of Count I of the Administrative Complaint, and imposing an administrative fine of $1000. DONE AND ENTERED this 9th day of November, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2011. COPIES FURNISHED: Neil E. Waigand, Jr. 906 North Riverside Drive, Apartment 8 Pompano Beach, Florida 33062-4623 David Perry, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 40 Tallahassee, Florida 32399-2202 Milton Champion, Director Department of Business and Professional Regulation Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202 Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 40 Tallahassee, Florida 32399-2202
The Issue Whether the Respondent's Proposed Rule 61D-11.012(5)(d) constitutes an invalid exercise of delegated legislative authority pursuant to Section 120.52(8)(c) and (e), Florida Statutes, as set forth in the Petition Challenging the Validity of Proposed Rule 61D-11.012(5)(d) filed March 14, 2008.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the Agreed Facts included in the parties' Pre- Hearing Stipulation, and on the entire record of this proceeding, the following findings of fact are made: The Parties The Division is authorized to administer cardrooms; to regulate the operation of cardrooms; and to adopt rules governing the operation of cardrooms. See § 849.086(4), Fla. Stat. (2007).1 Hartman and Tyner owns a pari-mutuel facility doing business as Mardi Gras Racetrack and Gaming Center, located at 831 North Federal Highway, Hallandale Beach, Florida 33009. Hartman and Tyner holds two pari-mutuel permits to conduct greyhound racing at this pari-mutuel facility, the BET Miami permit and the Mardi Gras permit. Pursuant to these permits, the Division issued Hartman and Tyner two current licenses to conduct pari-mutuel wagering at this pari-mutuel facility: License #141, which was issued under the BET Miami permit; and License #144, which was issued under the Mardi Gras permit. Pursuant to Section 849.086(5), Florida Statutes, Hartman and Tyner applied for, and the Division issued on June 28, 2007, two cardroom licenses allowing the operation of a cardroom with a maximum of 40 tables during the 2007/2008 season at its pari-mutuel facility. One cardroom license was issued in conjunction with the BET Miami permit, and the other cardroom license was issued in conjunction with the Mardi Gras permit. Hartman and Tyner computes the monthly gross receipts separately for the BET cardroom license and for the Mardi Gras cardroom license in calculating the 10 percent monthly tax imposed by Section 849.086(13)(a), Florida Statutes, and for purposes of the four percent monthly greyhound purse supplement imposed by Section 849.086(13)(b), Florida Statutes. Gulfstream Park holds two pari-mutuel permits to conduct thoroughbred and quarter horse racing at a pari-mutuel facility located in Broward County, Florida. Pursuant to Section 849.086(5), Florida Statutes, Gulfstream Park applied for, and the Division issued, a cardroom license in conjunction with its permit to conduct thoroughbred horse racing. Both Hartman and Tyner and Gulfstream Park are subject to regulation by Proposed Rule 61D-11.012(5)(d). The challenged proposed rule, relevant statutes, and legislative history. Section 849.086, Florida Statutes, which was first enacted in 1996, authorizes a person holding a pari-mutuel wagering permit to obtain a license to operate a cardroom at a pari-mutuel facility and sets forth the conditions under which such cardrooms are to operate.2 The legislative intent in enacting Section 849.086, Florida Statutes, is set forth as follows: LEGISLATIVE INTENT.--It is the intent of the Legislature to provide additional entertainment choices for the residents of and visitors to the state, promote tourism in the state, and provide additional state revenues through the authorization of the playing of certain games in the state at facilities known as cardrooms which are to be located at licensed pari-mutuel facilities. To ensure the public confidence in the integrity of authorized cardroom operations, this act is designed to strictly regulate the facilities, persons, and procedures related to cardroom operations. Furthermore, the Legislature finds that authorized games as herein defined are considered to be pari-mutuel style games and not casino gaming because the participants play against each other instead of against the house. Section 849.086(2), Florida Statutes, contains the following definitions which are pertinent to this proceeding: (c) "Cardroom" means a facility where authorized games are played for money or anything of value and to which the public is invited to participate in such games and charged a fee for participation by the operator of such facility. Authorized games and cardrooms do not constitute casino gaming operations. * * * (f) "Cardroom operator" means a licensed pari-mutuel permitholder which holds a valid permit and license issued by the division pursuant to chapter 550 and which also holds a valid cardroom license issued by the division pursuant to this section which authorizes such person to operate a cardroom and to conduct authorized games in such cardroom. Proposed Rule 61D-11.012 sets forth the duties of licensed cardroom operators at pari-mutuel facilities and is one of a number of proposed rules dealing with cardrooms at pari- mutuel facilities included in the Notice of Proposed Rule published by the Division on March 14, 2008, in Volume 34, Number 11, of the Florida Administrative Weekly. These rules were intended to implement changes to Section 849.086, Florida Statutes, enacted during the 2007 legislative session and effective July 1, 2007. Proposed Rule 61D-11.012(5), which contains the subsection that is the subject of this challenge, provides as follows:3 The cardroom operator must display the hours of operation in a conspicuous location in the cardroom subject to the following terms and conditions: Days and hours of cardroom operation shall be those set forth in the application or renewal of the cardroom operator. Changes to days and hours of cardroom operation shall be submitted to the division at least seven days prior to proposed implementation; Pursuant to Section 849.086(7)(b), F.S., a cardroom operator may operate a licensed facility any cumulative 12-hour period within the day; Activities such as the buying or cashing out of chips or tokens, seating customers, or completing tournament buy- insurance or cash-outs may be done one hour prior to or one hour after the cumulative 12-hour designated hours of operation; The playing of authorized games shall not occur for more than 12 hours within a day, regardless of the number of pari-mutuel permitholders operating at a pari-mutuel facility. Subsection(5)(d) was added to Proposed Rule 61D-11.012(5) at the end of February 2008, to "fix the Mardi Gras 24 hour cardroom issue."4 In the Notice of Proposed Rule for Proposed Rule 61D- 11.012, the Division identified its rulemaking authority as Section 550.0251(12) Florida Statutes, and Section 849.086(4) and (11), Florida Statutes. Sections 550.0251(12) and 849.086(4), Florida Statutes, both give the Division the authority to adopt rules governing, among other things, the operation of cardrooms at pari-mutuel facilities.5 These grants of rulemaking authority are sufficient to authorize the Division to promulgate Proposed Rule 61D-11.012. The Division stated in the Notice of Proposed Rule that Section 849.086, Florida Statutes, is the law implemented by Proposed Rule 61D-11.012. The only section of Proposed Rule 61D-11.012 challenged by Hartman and Tyner is Section (5)(d), which reflects the Division's interpretation of Section 849.086(7)(b), Florida Statutes. Section 849.086(7)(b), Florida Statutes, provides: "Any horserace, greyhound race, or jai alai permitholder licensed under this section may operate a cardroom at the pari- mutuel facility on any day for a cumulative amount of 12 hours if the permitholder meets the requirements under paragraph (5)(b)." Prior to the 2007 amendment, Section 849.086(7)(b), Florida Statutes (2006), provided in pertinent part: A cardroom may be operated at the facility only when the facility is authorized to accept wagers on pari-mutuel events during its authorized meet. A cardroom may operate between the hours of 12 noon and 12 midnight on any day a pari-mutuel event is conducted live as a part of its authorized meet. . . . Application to operate a cardroom under this paragraph must be made to the division as part of the annual license application. This version of the statute was enacted in 2003 and amended the original Section 849.086(7)(b), Florida Statutes (1997), which provided: A cardroom may be operated at the facility only when the facility is authorized to accept wagers on pari-mutuel events during its authorized meet. A cardroom may begin operations within 2 hours prior to the post time of the first pari-mutuel event conducted live at the pari-mutuel facility on which wagers are accepted and must cease operations within 2 hours after the conclusion of the last pari-mutuel event conducted live at the pari-mutuel facility on which wagers are accepted. Section 849.086(7)(b), Florida Statutes, requires that a pari-mutuel wagering permitholder must meet "the requirements under paragraph (5)(b)." Section 849.086(5), Florida Statutes, governs the issuance of cardroom licenses and provides that cardrooms may be operated only by persons holding valid cardroom licenses and that these licenses may be issued only to licensed pari-mutuel wagering permitholders. Section 849.086(5)(b), Florida Statutes,6 provides in pertinent part: After the initial cardroom license is granted, the application for the annual license renewal shall be made in conjunction with the applicant's annual application for its pari-mutuel license. If a permitholder has operated a cardroom during any of the 3 previous fiscal years and fails to include a renewal request for the operation of the cardroom in its annual application for license renewal, the permitholder may amend its annual application to include operation of the cardroom. In order for a cardroom license to be renewed the applicant must have requested, as part of its pari-mutuel annual license application, to conduct at least 90 percent of the total number of live performances conducted by such permitholder during either the state fiscal year in which its initial cardroom license was issued or the state fiscal year immediately prior thereto. If the application is for a harness permitholder cardroom, the applicant must have requested authorization to conduct a minimum of 140 live performances during the state fiscal year immediately prior thereto. If more than one permitholder is operating at a facility, each permitholder must have applied for a license to conduct a full schedule of live racing. Section 849.086(5)(b), Florida Statutes, was not changed by the 2007 amendments to Section 849.086, Florida Statutes, but, pertinent to this proceeding, the final sentence of the subsection was added by amendment in 2003. The effect of this amendment was described in the 2003 House of Representatives and Senate Staff Analyses as follows: "If more than one permitholder operates at a shared cardroom facility, each permitholder must apply for a license to conduct a full schedule of live racing." When introducing the bill that contained the 2007 amendment to Section 849.086(7)(b), Florida Statutes, to the Florida House of Representatives Jobs & Entrepreneurship Council, Representative Holloway, the sponsor of the House of Representatives bill, explained that the "cardroom bill . . . allows cardrooms to operate during live events, and the hours have changed from 12 hours a day . . . from a, from 12 Noon to 12 Midnight to 12 hours a day cumulative." In response to a question, Representative Holloway stated that the bill did not expand gambling in Florida, "[i]t is just re-arranging current provisions." In a similar vein, Senator Fasano, when he submitted a floor amendment to the Senate bill containing an amendment to Section 849.086(7)(b), Florida Statutes, stated that his amendment "limits the hours of operation of a cardroom to a cumulative amount equal to 12 hours in any day if the permit holder has met the requirements for licensure to operate a cardroom." Based on this legislative history and on the various iterations of the statute, the Division enacted Proposed Rule 61D-11.012(5)(d) to reflect its interpretation of the 2007 amendment to Section 849.086(7)(b), Florida Statutes, as limiting the operation of a cardroom at a pari-mutuel facility to a "cumulative amount of 12 hours." In the Division's view, the Legislature did not intend for the 2007 amendment to expand the number of hours a cardroom could operate but was intended only to allow a cardroom operator greater flexibility in setting the hours of operation. In promulgating Proposed Rule 61D- 11.012(5)(d), the Division made explicit its rejection of an interpretation of the 2007 amendment that would allow two pari- mutuel wagering permitholders licensed to operate a cardroom and sharing a pari-mutuel facility both to operate the cardroom at the pari-mutuel facility for a "cumulative amount of 12 hours" a day. The Division rejects such an interpretation because it could result in the operation of a cardroom at a pari-mutuel facility for 24 hours per day, exceeding what the Division considers the limitation on cardroom operation at a pari-mutuel facility to "a cumulative amount of 12 hours." § 849.086(7)(b), Fla. Stat.
Findings Of Fact At all times material hereto, Respondent, Giraldo Gonzalez, d/b/a LaGoma Restaurant, held alcoholic beverage license number 23-03475, series 2- COP, for the premises known as LaGoma Restaurant, 9550 N.W. South River Drive, Miami, Dade County, Florida. On May 30, 1986, Petitioner, Division of Alcoholic Beverages and Tobacco (DABT), following a complaint from another agency, began a narcotics investigation at the licensed premises. On that date, DABT Investigators Carlos Baixauli and Hector Garcia, operating under cover, entered the licensed premises and seated themselves at the bar. During the course of their visit they observed the on-duty bartender, Annie, deliver money to a male patron and receive from him a matchbook containing a small plastic packet of white powder. Annie subsequently delivered the matchbook to an unidentified male who was standing outside the front door of the premises. On June 3, 1986, Investigators Baixauli and Garcia returned to the licensed premises and again seated themselves at the bar. Investigator Garcia asked the on-duty bartender, Mindy, if she could get him some "perico" (Spanish slang for cocaine) Mindy subsequently approached Investigator Garcia and, sitting on his lap, pressed a small plastic bag of cocaine into his hand. Garcia paid Mindy $50.00 for the substance. 1/ On June 4, 1986, Investigators Baixauli and Garcia returned to the licensed premises. As they seated themselves at the bar, Investigator Garcia observed two patrons playing the video poker machine and shortly thereafter saw Respondent open the machine, erase the accumulated points, and pay the patrons and unknown quantity of money from the cash register. Later, while seated at the bar, Investigator Garcia engaged the on-duty bartender, Mindy, in conversation. Mindy placed a napkin on the bar in front of Garcia, poured cocaine onto it from a plastic package she had removed from her pocket, and invited Garcia to try some "perico". At that time there were a number of patrons, including a family with small children, seated proximate to Garcia. The investigators went to the bathroom and secured the cocaine in an evidence bag. Upon their return from the bathroom, the investigators heard screaming and arguing near the bar. They observed a male patron approach another male patron, who was carrying a gym bag which he claimed contained a shotgun, and demand that he put the gun away or use it. Respondent attempted to quell the disturbance; however, the patron with the bag swung it against the other patron's head, causing a severe cut and profuse bleeding. As the two patrons wrestled to the floor among broken bottles and glass, Respondent picked up the gym bag and hid it in the kitchen. After the fight broke up, Respondent's employees immediately cleaned up the premises. When the police arrived to investigate the disturbance they found no evidence of the mayhem that had occurred, and were assured by Respondent that only a miner altercation had taken place. Contrary to Respondent's assurances, a real donnybrook had occurred, and the patron struck with the gym bag had suffered severe injuries and was, at that moment, in the hospital. After the police left, another on-duty bartender, Debra (Mindy's sister), approached the investigators while they were seated at the bar and, laughing, began talking about the fight. During the course of their conversation, Debra removed a straw from her shoe and a five dollar bill from her blouse. She unfolded the bill on the bar, revealing a white powdered substance, and snorted a portion of the substance through the straw. Several patrons, together with bartender Mindy, were present at this time. Later that evening, Mindy handed Investigator Garcia a small plastic bag of cocaine, telling him to go try some. The investigators went into the bathroom where they transferred a portion of the cocaine into a plastic bag for evidence and returned the remainder to Mindy." 2/ On June 6, 1986, Investigators Baixauli and Garcia returned to the premises, and assumed their usual seats at the bar. A patron seated next to Investigator Garcia introduced himself as Eduardo and asked Garcia if he wanted to buy some good perico. When Garcia agreed, Eduardo stood, removed a small plastic bag of cocaine from his pocket, laid it on the bar, and received $45.00 from Garcia. Several patrons, together with the on-duty bartender, Maritza, observed the transaction. Later, Investigator Baixauli asked on-duty bartender Debra if she could get him some cocaine. When Debra agreed, Baixauli gave her $50.00 and she walked over to three male patrons. Upon her return, Debra placed a plastic package of cocaine on the bar in front of the investigator. Several patrons smiled at Baixauli after observing the transaction. Following this sale, off- duty waitress Jenny approached Investigator Baixauli and told him she was sure he would like the perico since she was the supplier. Subsequently, Jenny joined a male patron seated down the bar, and the two snorted a white powder off the bar in the presence of numerous patrons. On June 9, 1986, Investigators Baixauli and Garcia returned to the licensed premises. The investigators began speaking with patron Eduardo, regarding the purchase of more cocaine. The investigators left the bar for a short time with Eduardo, but returned before him. When Eduardo entered the premises, he was carrying a large plastic bag containing approximately one ounce of marijuana. Eduardo placed the bag on the bar in front of the investigators, and told them the marijuana was on the house. On-duty bartenders Esperanza and Candy, together with Respondent, were proximate to this transaction. On June 10, 1986, the investigators returned to the premises. During the course of their visit, Investigator Baixauli observed a male patron playing the video poker machine who suddenly exclaimed "I won". Respondent told the patron to "leave it on 600 and I'll pay you". Respondent then paid the patron $150.00 from the cash register. The investigators again returned to the premises on June 12, 1986. As Investigator Garcia spoke with off-duty waitress Jenny, she removed a small change purse from her boot, which she opened to reveal several small packages of white powder. Jenny told Garcia she would sell him some for $50.00, as opposed to $60.00, if he would agree to let on-duty bartender Maritza have some. When Garcia agreed, Jenny and Haritza went to the restroom. Jenny subsequently returned and handed the packet of cocaine to Investigator Garcia. Later, a patron identified as Roger sat next to Investigator Garcia and Jenny, and purchased a packet of cocaine from her. Roger subsequently handed Jenny the packet and told her to let her friends try some. Investigator Garcia went to the restroom, secured a sample of the cocaine for evidence, and returned the remainder to Jenny. On June 16, 1986, the investigators returned to the premises and took their usual seats at the bar; on duty were bartenders Mindy and Debra. Investigator Baixauli observed Respondent standing at the video poker machine watching a patron play. When the patron had achieved a score of 400 points, he told Respondent to "credit me 50 on the machine and give me the rest". Respondent credited the machine 50 points, and paid the patron an unknown amount of money from the cash register. Meanwhile, Eduardo seated himself next to Investigator Garcia and asked if he wanted to buy some good cocaine. Garcia told Eduardo that he was a little short of cash, however, since Mindy volunteered to go halves, Garcia agreed. Garcia gave Mindy $25.00, she borrowed $10.00 from Debra, and gave Eduardo a total of $50.00 in exchange for a plastic packet of cocaine. Mindy held the packet up for Debra to see, whereupon they went to the restroom. Upon their return, Mindy placed the packet of cocaine on the bar in front of Garcia. On June 18, 1986, the investigators returned to the premises, and took their usual seats at the bar. While Garcia was seated next to, and speaking with, off-duty waitress Jenny, Jenny summoned Respondent. While Respondent was present, Garcia asked Jenny if she had a small amount of perico he could have since he was short of cash. At that point, Respondent moved about 3-4 feet away to speak with a patron. Jenny removed a plastic packet of cocaine from her pocket and placed it on the bar. As Garcia reached to pick up the packet, he observed Respondent looking in his direction. As Garcia continued to speak with Jenny, a male patron approached her and asked if she had his "stuff". Jenny handed the man a plastic packet containing a white powder and he paid her an unknown quantity of money. Investigator Garcia subsequently observed the patron snort a portion of the white powder through a rolled up dollar bill while standing in the pool room area. A number of patrons were playing pool or standing in the area during his activity. The investigators returned to the premises on June 20, 1986, and observed Respondent pay off on the video poker machine. Later in the evening, while Respondent was speaking to Sixto Gonzalez, Sixto called Mindy over and handed her a marijuana cigarette. Mindy and her sister Debra went to the service door and smoked the marijuana. On June 23, 1986, the investigators returned to the premises. After assuming their usual seats, Investigator Baixauli asked on-duty bartender Debra if she had any cocaine for sale. Debra replied that she did not, but that she could get some from another on-duty bartender, Esperanza. Baixauli gave Debra $50.00, and she secured a plastic packet of cocaine from Esperanza and delivered it to Baixauli. Several patrons, who were speaking with Esperanza at the time, observed the transaction. On June 27, 1986, the investigators returned to the premises for the last time. Seated in their usual seats, Investigator Baixauli counted out $50.00 in front of on-duty bartender Mindy. Mindy immediately picked up the money and, walking away, announced "it's perico time". Baixauli observed Mindy approach a male known as Flaco and then go the restroom. When she returned to Baixauli, she handed him a plastic packet of cocaine. Baixauli held the packet up in the presence of other patrons, and while Respondent was standing behind the bar. All of the events summarized in the preceding paragraphs took place at the licensed premises during normal business hours and at times when Respondent was present. At no time did Respondent or his employees express any concern about any of the drug transactions. In fact, all of the employees who worked in the bar portion of the licensed premises knew that marijuana and cocaine were being used and sold on the licensed premises, on a regular, frequent, and flagrant basis. Neither Respondent, nor any of his employees, took any action to prevent, discourage, or terminate the sale or use of controlled substances.
