The Issue Whether Respondent unlawfully obstructed and/or hindered the inspection of his licensed premises by law enforcement officers and allowed or otherwise condoned the sale of alcoholic beverages in violation of a municipal ordinance concerning the hours of sale and, if so, what disciplinary action is warranted.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the state agency charged with regulating the sale of alcoholic beverages and tobacco in Florida. Respondent, El Greco, Inc., d/b/a El Greco is the holder of alcoholic beverage license number 63-00458, series 4-COP. Respondent's premises is located at 1109 East Main Street in Lakeland, Florida. Respondent's president is John Houvardis (herein Respondent). Petitioner issued two official warnings to Respondent on October 19, 1992. One warning was for a violation of Section 562.41, Florida Statutes, to wit, hindering or obstructing a law enforcement officer from conducting a search of the licensed premises which included locking a law enforcement officer from the premises. The other warning was for an alleged violation of the Lakeland City Ordinance relating to the sale, serving, or consumption of alcoholic beverages after the legal hours of sale. On January 29, 1994, Officer Ed Mingus of the Lakeland Police Department was dispatched to Respondent's premises at approximately 2:29 a.m. Officer Mingus was dispatched to investigate a complaint of "loud noises and sale of alcoholic beverages after hours". When Officer Mingus arrived at Respondent's premises on January 29, 1994, he heard noise coming from the licensed premises and observed several cars in the parking lot. The front door of the licensed premises was locked and Officer Mingus knocked to gain entry. An unidentified person answered the door and Officer Mingus identified himself as a police officer and requested entrance. Within seconds after requesting entrance, Respondent opened the door and allowed Officer Mingus inside the premises. At the time, approximately five employees were cleaning the licensed premises and no alcoholic beverages were observed either being served or consumed by Officer Mingus. Officer Mingus gained entry to the premises within five minutes of first knocking on the door. Officer Mingus suspected that there were other people inside and, in this regard, he asked Respondent if there were, in fact, other people in the licensed premises. Officer Mingus told Respondent of his suspicion that he was violating the hours of sale whereupon Respondent reiterated of his awareness of the ordinance prohibiting sale of alcoholic beverages after hours and insisted that he was not violating the ordinance. Officer Mingus thereafter requested permission from Respondent to search the licensed premises and Respondent consented to a search. Officer Mingus observed approximately nine or ten patrons in the kitchen area. Officer Mingus again reiterated his suspicion that Respondent was violating the municipal laws concerning the hours of sale and gave Respondent a verbal warning that if he was caught violating the ordinance, he would face criminal and administrative sanctions. Detective Denny Phillips of the Lakeland Police Department conducted a sight investigation of Respondent's premises on January 29, 1994, both prior to and while Officer Mingus was inside the licensed premises. Detective Phillips was across the street from the licensed premises with an unobstructed view of the premises on January 29, 1994. On February 26, 1994, Detective Phillips continued his investigation of Respondent's licensed premises. Detective Phillips instructed Officer Ed Cain, also a patrol officer for the Lakeland Police Department, to enter the licensed premises in an undercover capacity. Officer Cain was instructed to attempt to remain in the licensed premises after 2:00 a.m., and to purchase an alcoholic beverage. Officer Cain entered the licensed premises at approximately 12:30 a.m. on February 26, 1994, and observed a crowded lounge consisting mostly of college-aged patrons. Respondent was observed inside the premises. Officer Cain observed a large number of the patrons leaving the premises by 1:00 a.m., and Respondent's employees escorted the remaining patrons from the licensed premises at approximately 1:45 a.m. Officer Cain was not asked to leave the licensed premises and he remained along with approximately four or five other patrons. At approximately 2:10 a.m., Officer Cain ordered a shot of Sambuca, an alcoholic beverage described as a licorice liqueur, from a female employee. Officer Cain placed $2.00 for the beverage on the counter of the bar. Officer Cain observed that same employee placing the money in a bank bag containing the contents of the cash register. Officer Cain is familiar with alcoholic beverages and what they smell and taste like and has consumed alcoholic beverages prior to the evening of February 26, 1994. Officer Cain exited the licensed premises and notified Detective Phillips that he had purchased an alcoholic beverage from an employee after 2:00 a.m. Detective Phillips entered the licensed premises and met with Respondent who was still in the licensed premises. Detective Phillips advised Respondent that undercover officer Cain had purchased an alcoholic beverage from an employee after 2:00 a.m. and that Respondent and the employee would be cited for violation of the municipal ordinance respecting the sale of alcoholic beverages after hours. Respondent usually has extra food left over from functions that he has at the licensed premises from time to time and the employees and others who were in the kitchen area of the licensed premises after 2:00 a.m., on January 29, 1994, were eating some of that extra food.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order imposing a civil penalty against Respondent in the amount of one thousand ($1,000) dollars for the above-referenced violation (sale of an alcoholic beverage after hours). DONE AND ENTERED this 22nd day of November, 1994, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1994. APPENDIX TO RECOMMENDED ORDER Rulings on Petitioner's proposed findings of fact: Paragraph 4, rejected, unnecessary and not probative. Paragraph 10, adopted as modified, paragraph 5, Recommended Order. Paragraph 16, adopted as modified, paragraph 8, Recommended Order. Paragraph 20, rejected, contrary to the greater weight of evidence, paragraphs 11 and 12, Recommended Order. Paragraph 27, rejected as being a recitation of testimony, and not proposed findings of fact. COPIES FURNISHED: John M. Houvardas, President El Greco, Inc. 1109 East Main Street Lakeland, Florida 33801 Richard Courtemanche, Jr., Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 John J. Harris, Acting Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Respondent, Edward Lee Howell (Howell), holds alcoholic beverage license number 46-01252, Series 2-COP, for licensed premises located at 2712 Towles Street, Fort Myers, Florida, known as Mr. B's Lounge. Violation of Local Ordinance Lee County Ordinance 76-9, as amended by Ordinance 79-1, provides in pertinent part: All places or establishments within the unincorporated area of the county and lawfully licensed by the State Beverage Department of Florida, may sell or serve, or permit to be sold, served or consumed, any type of alcoholic beverage of any kind whatsoever for consumption both on or off the premises only during the hours of 7:00 a.m. and 2:00 a.m. of the following morning every day of the week, including Sundays. Howell was cited on or about July 1, 1989, for allegedly violating this "hours of sale" ordinance, but he was aquitted in August, 1989. In 1990, Lee County Sheriff's Office (LCSO) Deputy James Nygaard warned Howell a half dozen times not to sell alcoholic beverages after 2 p.m. On or about December 28, 1990, Nygaard cited Howell for allegedly violating the ordinance by allowing a patron to consume alcoholic beverages on the premises after hours. Howell was tried and acquitted because it was not proven that the patron was drinking an alcoholic beverage. After successive reassignments to another patrol zone and to work as a detective, Nygaard was reassigned to patrol the East Zone in January, 1995. Beginning in January, 1995, Nygaard warned Howell twice not to sell alcoholic beverages after 2 p.m. On or about March 11, 1995, Nygaard cited Howell for violating the ordinance. Howell denied the charges, which still were pending in criminal court at the time of the final hearing. Nygaard testified that, this time (in contrast to the December, 1990, charge), he retained a sample of the contents of the container out of which the patron was drinking after 2 p.m. He testified that the sample was tested and found to be an alcoholic beverage. But the evidence shed no light on the extent of Howell's responsibility for the violation (e.g., how long after 2 p.m. the violation occurred, whether the violation was flagrant, whether Howell was even on the premises at the time of the violation or, if not, how diligent he was in training his employees on how to prevent violations of the "hours of sale" ordinance.) Howell denied that he sells or serves or allows alcoholic beverages to be served, sold or consumed in violation of the ordinance. Mr. B's remains open after 2 a.m. and patrons dance and listen to music, but Howell testified that they are not allowed to drink alcohol in the lounge after 2 a.m. Towles Street Near Mr. B's Mr. B's Lounge is in a section of Fort Myers, Florida, where in recent years violent crime increasingly has become an undeniably serious problem to area residents and the LCSO, which is the law enforcement agency having jurisdiction. Towles Street is a two-lane road that runs between Edison Avenue and State Road 82 outside the city limits of the City of Fort Myers. During the evening hours, especially on weekends, large numbers of people park cars in the street and congregate in the area. Some of these people patronize Mr. B's, but many more congregate in the street and on both sides of the street up and down Towles Street in the vicinity of Mr. B's. A good number of these people drink too much and become noisy and violent. (Not all of the drinking takes place in Mr. B's, and not all of what is drunk comes from Mr. B's. Many of these people buy their alcoholic beverages elsewhere, or bring them from home, and drink their alcoholic beverages outside on and along Towles Street.) Many drive at recklessly high speeds up and down the street (when the streets are passable.) Loud music is played from stereos in car driving up and down the street and parked in the street. Some of these people, drunk or not, come to the area with the intention to engage in crime, violence and other disruptive conduct. More and more carry knives and firearms, or keep them in their cars, and many use or threaten to use their weapons. Assaults and armed robberies are common. The area around and including Mr. B's has become known to those who frequent it as a place to go to "hang out" and be a part of this violent scene. The violence, including stabbings and shootings, has become so prevalent that residents of the area who do not participate in the violence are afraid to leave their homes at night and, even in their homes, they are not completely safe from stray bullets. The violence and reputation for violence on Towles Street in the vicinity of Mr. B's has become like no other place in Lee County. One LCSO deputy testified that he has heard more automatic weapon fire on duty at night on Towles Street than he heard during his entire experience as a member of the United States armed forces. Some deputies testified that, especially on weekends, there often are so many cars parked illegally in Towles Street that deputies patrolling the area or responding to complaints have to park their police vehicles on Edison Avenue or State Road 82 and walk in. They believe that, when they are seen approaching, the people congregating in the vicinity of Mr. B's lock their weapons in cars and that many of them enter Mr. B's to avoid the deputies. On occasion, the crowds of people encountered by LCSO deputies on Towles Street do not disperse so readily. Once, two deputies responding to a call for service in the vicinity of Mr. B's were assaulted before reaching the lounge and received injuries, including a broken jaw, requiring medical attention in the hospital. (Howell assisted the deputies in subduing the assailant.) On another occasion, it took deputies approximately an hour to control and disperse the crowd, during which time another call for LCSO assistance had to go unanswered for half an hour. Some of the incidents on Towles Street occur before 2 a.m., but many occur later, after the LCSO patrols have been reduced to a single shift. With fewer deputies on patrol, the violence on Towles Street becomes an even greater problem for law enforcement. By the time backup arrives in response to calls on Towles Street, practically no deputies remain available to patrol or respond to calls for service in the rest of the zone. The Licensed Premises No sketch of the licensed premises was introduced in evidence. The evidence was that Mr. B's faces Towles Street and that the front door opens onto a front step that is separated from the street by an unpaved strip of grass and dirt about seven feet wide. Until very recently, Mr. B's had only four parking spaces and did not have a parking lot. The precise extent of the licensed premises was not made clear from the evidence. During an inspection of the licensed premises on February 23, 1995, DABT Special Agent Odom recovered 141 spent gun shell casings in the vicinity of Mr. B's, including: seventy-four 74 9mm's; three 38 Specials; sixteen 16 357 Magnums; four 45-caliber; three 30-caliber; three 44 Magnum; one 10mm; 2 25- caliber; and nineteen 12 gauge shotgun shell cases. Some of these spent shell casings were recovered between the front door to Mr. B's and Towles Street. Most were recovered within 15 to 20 feet from the lounge building, but some were recovered as far as 20 yards away, including some that were found all the way across Towles Street on the opposite side of the street. Four were recovered under the cushion of a couch inside Mr. B's, but there was no evidence how they got there and no evidence that they were fired inside Mr. B's. Except for these four, it was not proven that any of the spent shell casings actually were recovered from the licensed premises themselves. From February, 1991, through October, 1994, there have been 135 calls for LCSO service arising out of incidents in the vicinity of Mr. B's. Some of the calls reported finding lost property or suspicious persons or were for the purpose of reporting some other information to the LCSO. Many of the calls were for relatively minor offenses, such as disturbances, trespassing, vandalism, nuisances, car accidents and highway obstruction. But many were for more serious crimes such as assaults, use or display of firearms, burglaries and robberies. Although many of these calls were placed from a telephone at Mr. B's, the evidence was not clear which, if any, of the incidents instigating calls actually occurred at Mr. B's. It seems clear that the police records use a reference to "Mr. B's" as as short hand way of describing Towles Street in the vicinity of Mr. B's. Some of the incidents in the vicinity of Mr. B's constituted violent crimes. Since 1988, there have been: two murders; four attempted murders; 11 batteries with a firearm; two batteries with a knife; one sexual battery or attempted rape; one shooting into a vehicle; one robbery with a firearm; and two batteries with a dangerous weapon. Most of these crimes occurred outside of Mr. B's, and the evidence did not prove that they occurred on the licensed premises, or how close to the licensed premises they occurred. One incident that clearly occurred on the licensed premises was a fight that broke out during the early morning hours of February 12, 1995. One person was hit on the head with a claw hammer, and another was stabbed with a knife. After some of the participants left Mr. B's, fighting continued outside on the street. Someone telephoned the LCSO, and when deputies arrived, they witnessed four men kicking another who was lying on the ground behind a car, while approximately fifty other people stood watching. As the deputies approached, a man with a sawed-off shotgun walked up to the man lying on the ground and shot him in the leg. It was not clear from the evidence whether any of the people involved in the incident outside on the street had been patrons of Mr. B's. On or about August 3, 1993, the LCSO investigated an incident in which a patron of Mr. B's was shot while walking out the door of Mr. B's. The victim did not know who shot him or where the shot came from. On or about June 7, 1994, the LCSO investigated an incident involving an alleged sexual battery or attempted rape that occurred in the restroom at Mr. B's. The alleged victim in that case withdrew her complaint, and the case was closed. One LCSO deputy testified that he has received several telephone calls from a pay phone down the street at Edison Avenue reporting assaults and other crimes that allegedly occurred inside Mr. B's and that the victim reportedly was afraid to place the call to the police while still at Mr. B's (for fear of further assault.) But there was no specific evidence about any of these alleged crimes. Although some local residents blamed Mr. B's for the loud music heard in the neighborhood, especially on weekend nights, it was not clear whether the loud music being heard by the local residents actually is coming from Mr. B's, as opposed to being played from car stereos on the streets. The Respondent's Responsibility for the Violence and Noise It was not proven that Howell does anything to condone violence and noise in or around Mr. B's Lounge or that he is protecting criminals from apprehension by the LCSO. To the contrary, almost all of the crime reports to the LCSO from 2712 Towles Street were placed by Howell himself or his employees. Not only has Howell telephoned the police for assistance on many occasions, he also has put himself at risk of physical harm by helping law enforcement officers subdue violent subjects in and around the premises. In addition, Howell employs a bouncer who uses a metal detector to try to insure that no weapons are brought into Mr. B's and denies entrance to certain people known to cause problems. (Surprisingly, given the kind of people who congregate on Towles Street, there also was no evidence sufficient to support a finding of illegal drug use in or about the licensed premises.) One LCSO sergeant recalled an occasion when he confronted Howell about problems in and around Mr. B's and, in the sergeant's opinion, Howell treated him rudely. Howell does not recall the incident. No other law enforcement officer testified to any occasion when Howell was anything but cooperative with law enforcement. There was no evidence that the DABT counseled Howell on measures to take to reduce violence on his licensed premises. For example, the DABT could have required the Respondent to supervise and control the entire licensed premises, including both the building and grounds (including parking lot). The Respondent also could have been required to fully cooperate with law enforcement in its efforts to control crime in the area, including allowing LCSO complete access to the licensed premises. See Section 562.41(5), Fla. Stat. (1993). Instead, the evidence was that the LCSO complained to the DABT about Mr. B's on or about February 20, 1995, that the DABT inspected the premises on February 23, 1995, and that the DABT then initiated the proceedings that led to the issuance of the Emergency Suspension Order on or about March 16, 1995. Since Mr. B's has been under the Emergency Suspension Order, there have been markedly fewer problems for law enforcement and law-abiding residents in the area. The people who had been congregating near Mr. B's and causing problems either have found somewhere else to congregate or have dispersed for the time being. Mr. B's apparently attracted and served as a focal point for these people. It seems that suspending the Respondent's license has had a positive effect on the level of crime in the immediate vicinity. (However, some law enforcement officers seemed to support Howell's opinion that the people causing the problems near Mr. B's eventually will find another place to hang out and cause problems.) Clearly, the LCSO and many of the local residents would like to see Mr. B's closed permanently. But the reduction in violence and loitering after the Respondent's beverage license was suspended does not, in itself, prove that the Respondent was culpably responsible for violence and loitering that occurred while the licensed premises were open and operating. Howell operates a package store, not far from Mr. B's but within the city limits of Fort Myers, and near another lounge. City police regularly patrol the area, and it has relatively few of the problems experienced on Towles Street. A more frequent and visible law enforcement presence on Towles Street also would reduce violence and disturbances there. Five to ten years ago, Mr. B's operated in the same location with fewer problems. In those earlier years, LCSO patrolled the area more frequently. In those days, parking laws were enforced more consistently, and LCSO patrol cars could drive down Towles Street without difficulty. When loiterers were encountered in the street, LCSO required them to either go inside Mr. B's or go home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (DABT), enter a final order: (1) dismissing the charges in the Notice to Show Cause against the Respondent, Edward Lee Howell; and (2) also dismissing the Notice to Show Cause seeking to impair the licensed location owned by the Respondent, William A. Bell. RECOMMENDED this 21st day of April, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 95-1403 and 95-1404 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. (However, the reputation attached to licensed premises actually applies not only to the licensed premises but also to Towles Street and the area surrounding Mr. B's. First sentence, rejected as not proven. (Many of the 176 calls on DABT Ex. 3 were not made from Mr. B's.) Second and third sentences, accepted and incorporated to the extent not subordinate or unnecessary. (However, it only was proven that a few of the violent acts actually were committed on the licensed premises.) Accepted and incorporated to the extent not subordinate or unnecessary. (One of the questions for determination in this case is the extent of Howell's "affirmative duty.") Rejected as not proven that the violent acts were committed by patrons or, if they were patrons, that they were committed on the licensed premises. Otherwise, the first sentence is accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. However, in the public mind, "Mr. B's" describes not just the licensed premises but also Towles Street and the area surrounding Mr. B's. First sentence, rejected as not proven that the initial service call reported the shooting of a patron. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the incidents described in the second sentence occurred during the investigation. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the 141 shell casings were recovered in the Respondent's "parking lot." (They were recovered from the immediate vicinity of Mr. B's, starting from the side of the building and extending for up to approximately 40 yards away, and including on the opposite side of Towles Street across from the licensed premises. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. (Nygaard warned Howell several times in 1990 before arresting him. Howell was tried and acquitted on a judge's ruling that it was not proven that the patron was drinking alcoholic beverages after hours. After Nygaard was reassigned to the East Zone in January, 1995, he again arrested Howell on similar charges, which Howell denies and which are still pending.) Accepted but subordinate and unnecessary. Accepted and incorporated. Howell's Proposed Findings of Fact. (Howell wrote a letter from which findings arguably have been proposed, as indicated.) Rejected as contrary to the greater weight of the evidence that the crimes described in the evidence did not "in the vicinity of" Mr. B's. Accepted that the Respondent recently added a parking lot and incorporated to the extent necessary. Accepted that, if they cooperate, the Respondent and LCSO can solve some of the problems, and incorporated to the extent necessary. Bell's Proposed Findings of Fact. (Bell also wrote a letter. Much of the letter is argument but findings arguably also have been proposed, as indicated. For purposes of these rulings, the unnumbered paragraphs of Bell's letter are treated as consecutive, separate proposed findings.) Accepted and incorporated. Rejected as argument and as not supported by any evidence. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, rejected as argument and as conclusion of law. Accepted and incorporated that Howell called LCSO frequently to report crime. Rejected as not proven that none of the incidents involved Mr. B's, that all involved "just the neighborhood"; accepted and incorporated that many of the calls involved incidents occurring off the licensed premises. The rest is rejected as argument and as subordinate and unnecessary. Rejected as not supported by the record that most of the alcoholic beverages drunk by people hanging around in Towles Street are from sources other than Mr. B's; accepted and incorporated that much is, and that all the liquor is. (Mr. B's has a Series 2-COP license.) Rejected as argument, as subordinate and unnecessary, and as unsupported by any evidence. Accepted and incorporated that LCSO has reduced patrols in the area, in part due to budgetary constraints but also in part due to the illegally parked cars that block Towles Street, and that Howell places many of the telephone calls reporting crime in the area. Otherwise, rejected in part as unsupported by any evidence, in part as argument and conclusion of law, and in part as subordinate and unnecessary. Accepted and incorporated that reduced police presence in areas like Towles Street increases crime. Otherwise, rejected as argument, as subordinate and as unnecessary. Accepted and incorporated that the DABT did not prove lack of due diligence. Otherwise, rejected in part as argument and conclusion of law, and in part as subordinate and unnecessary. In part, rejected as contrary to the greater weight of the evidence (that only one of the violent crimes was reported to have originated in Mr. B's.) (See Findings of Fact 19 and 20.) Otherwise, accepted and incorporated in part. In part, rejected in part as argument and conclusion of law, and in part as subordinate and unnecessary. Accepted and incorporated that the wounds were not received on the licensed premises. Otherwise, rejected as cumulative. Accepted and incorporated that the evidence did not clearly identify either the victim or the assailant as being patrons. Otherwise, rejected in part as argument and conclusion of law, and in part as subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Cumulative. Accepted and incorporated that Towles Street presents a difficult police problem and that increased patrols and manpower could help. Otherwise, rejected in part as unsupported by any evidence (the nine-block area), in part as argument, and in part as subordinate and unnecessary. Accepted and incorporated that many people congregate in the streets and that policing them is made difficult by the congestion. Otherwise, rejected in part as argument and in part as subordinate and unnecessary. 17.-18. Cumulative. Rejected that Tamayo's statement was naive. Accepted and incorporated that the problem could move elsewhere if Mr. B's were closed. Otherwise, argument, subordinate and unnecessary. Generally accepted and incorporated to the extent not subordinate or unnecessary, or argument. However, Bell does not seem to acknowledge the serious problems faced by law enforcement in the Towles Street. Rejected as contrary to the greater weight of the evidence that no problems occur before 2 a.m. Also, subordinate, unnecessary, and argument. 22.-23. Argument. COPIES FURNISHED: Thomas A. Klein, Esquire Chief Attorney Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1020 Edward Lee Howell 1348 Brook Hill Drive Ft. Myers, Florida 33916 William A. Bell 19450 Tammy Lane Ft. Myers, Florida 33917 Lynda L. Goodgame, Esquire General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 John J. Harris, Division Director Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1020
Findings Of Fact At all times relevant to this case, Rajenor Bajrangi held a valid Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (hereinafter Division), license for the premises known as the Quick Stop Center (hereinafter licensed premises), license number 6k9-305, series 2-APS, located at 1201 Airport Boulevard, Sanford, Seminole County, Florida. Underage operative Robert Scott assists the Sanford Police Department in determining whether or not licensed premises will sell alcoholic beverages to persons under the age of 21 years of age. Mr. Scott was born on April 17, 1969, and on Monday, May 23, 1988, he was nineteen years old. On May 23, 1988, Robert Scott entered the licensed premise, walked to the back of the store, removed a 12 oz. can of Miller beer from the cooler, and proceeded to the check-out counter. He presented the beer to a man that he identified at the hearing as being Rajenor Bajrangi. Mr. Bajrangi, without requesting any identification, rang up the beer on the cash register and received from Mr. Scott the requested price for the beer. Mr. Scott departed the premise with the beer and met Officer Collison outside where Mr. Scott gave Officer Collison the Miller beer. At no time during this transaction did Mr. Bajrangi inquire as to Mr. Scott's age. Officer Chris A. Collison of the Sanford, Florida, Police Department has been a police officer for over eight years. On May 23, 1988, about 10:00 p.m., he went in an unmarked car with another officer and Robert Scott to the licensed premises. He was able to observe Mr. Scott enter the licensed premises purchase the aforementioned beer and then depart the premises. The funds that Mr. Scott used to purchase the beer were provided by Mr. Collison. Mr. Collison received the Miller beer purchased by Mr. Scott from the hands of Mr. Scott. He identified the beer that was offered as Petitioner's Exhibit 2 as being the beer that was given to him by Robert Scott. David E. Ramey is a law enforcement investigator for the Division of Alcoholic Beverages and Tobacco and he has been so employed for over eleven years. He inspected the can of Miller beer that was entered into evidence as Petitioner's Exhibit 2 and knows that the evidence was labeled as beer, that it was contained in an unopened can, that it had lithographed on the lid of the can the word "Florida," and that it bore the manufacturer's trademark. Investigator Ramey had the opinion that the substance in Petitioner's Exhibit 2 is beer. The usual penalty for a licensee selling to an underage person is a $1,000.00 civil penalty accompanied by a 20-day license suspension. Mr. Rajenor Bajrangi testified that, on May 23, 1988, when Mr. Scott purchased the beer, there was a large group of rowdy people loitering in the vicinity of the licensed premise and that the police officers should have arrested these rowdy persons instead of trying to make an underage case against him. Neither the testimony of Officer Collison or that of Mr. Scott served to bolster Mr. Bajrangi's claim that he was diverted by the so-called rowdy persons and Officer Collison specifically stated that there were no distractions occurring in the vicinity of the licensed premise at the time the beverage was purchased. Considering the evidence as a whole, there was no credible evidence that Respondent was distracted at the time the beverage was purchased.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding the licensee guilty of a violation of Section 561.29(1)(a), Florida Statutes, and Section 562.11(1)(a), Florida Statutes, and imposing a civil penalty of $1,000.00 and a three (3) day license suspension. DONE AND ENTERED this 12th day of July, 1989, in Tallahassee, Leon County, Florida. DANIEL M. MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1988. 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 Recommended Order Paragraph 1-6. Accepted Respondent's letter dated July 4, 1989. Did not dispute Petitioner's finding of fact but was in the nature of mitigation. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Rajenor Bajrangi c/o Quick Stop Center 1201 Airport Boulevard Sanford, Florida 32771 Leonard Ivey Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 S. Bronough Street Tallahassee, Florida 32399-1000 Stephen R. McNamara Secretary Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue This case arises out of a notice to show cause served upon the Respondent by the Division of Alcoholic Beverages and Tobacco alleging that Beverage License No. 27-92 should be suspended, revoked or otherwise disciplined for five separate counts involving drug sales on the licensed premises. As a basis for its proof, Petitioner relied upon a stipulation entered into with the Respondent and a Division of Alcoholic Beverages and Tobacco Case Report which was admitted without objection. Mr. Charles Andrews testified on behalf of himself as licensee. A copy of the notice to show cause was admitted as Joint Exhibit 1 and the Petitioner of foreign and had admitted without objection one exhibit, the case report of the Division of Alcoholic Beverages and Tobacco.
Findings Of Fact Charles D. Andrews, trading as Odom's Bar, is the licensee of Beverage License No. 27-92, License Series 4-COP. The licensed premises is located on Highway 29 in Century, Escambia County, Florida. The Petitioner and Respondent, having stipulated to the truth and accuracy of those facts alleged in the notice to show cause, and based upon that stipulation, the undersigned Hearing Officer finds those facts set forth in A through F of this paragraph: On May 24, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate the laws of the State of Florida by delivering a controlled substance, to wit: cannabis to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews, contrary to Florida Statute 893.13 within Florida Statute 561.29. On June 14, 1982, Johnny Andrews, the employee of Charles D Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, cannabis, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews. On June 17, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, cannabis, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews. On July 11, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, LSD, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews. On August 6, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, LSD, to Actent P. A. Blackman while on the licensed premises of Charles D. Andrews. A. The negotiations and discussions about the May 24, 1982, transaction occurred inside Odom's Bar and the delivery took place through the drive-in window located on the north side of the licensed premises. On June 14, 1982, Beverage Officer Blackman drove to the drive-in window and asked Johnny Andrews if he was holding any pot. Johnny Andrews stated he was holding a 35 cents bag. After a short discussion about possible purchase of a larger quantity, Officer Blackman purchased the bag of marijuana for $35.00. The plastic bag of marijuana was in a brown paper bag and was handed to Officer Blackman through the drive-in window. The delivery of the marijuana to Officer Blackman on June 17, 1982, also took place at the drive-in window. Johnny Andrews handed Blackman a brown paper bag containing a Miller and a plastic bag of marijuana. On July 11, 1982, Officer Blackman observed three patrons smoking a marijuana cigarette in Odom's Bar, and this activity was observed. by the barmaid on duty. No attempt was made to stop the activity. Officer Blackman was offered the marijuana cigarette and he pretended to smoke it. At this time, Johnny Andrews approached Officer Blackman and offered to 7 sell him some "acid" (LSD). Officer Blackman agreed and was instructed to drive around to the drive- in window. He did so and the delivery of the "acid" took place through the drive-in window. On August 5, 1982, Officer Blackman, after being in the licensed premises, drove up to the drive-in window where Johnny Andrews offered to sell him some "acid" (LSD) Officer Blackman agreed to purchase and agreed to return on August 6 to pick up the "acid". on august 6, 1982, Officer Blackman returned to the drive-in window where Andrews handed him a bag containing six hits of acid. At the time of the conversations and purchases on June 14, August 5, and August 6, 1982, Johnny Andrews was on duty and working at Odom's Bar. Mr. Charles Andrews has owned Odom's Bar for the past five years and worked for the two previous owners. He began working at Odom's Bar 20 years ago. The bar is managed by Respondent and his wife. Johnny Andrews, referred to in the stipulation above, is the son of Mr. and Mrs. Charles D. Andrews, and during the time period of the incidents set forth in Paragraph 1, was working as an employee at the bar. This was the first summer he had worked at the bar. He was working while he was home from college, and has not been allowed to work at the bar since August, 1982, when he was arrested. Generally, Johnny Andrews would relieve Mr. and Mrs. Andrews and they would leave the bar while he was working. The Respondent, Charles D. Andrews, had no knowledge of the drug transactions his son was involved in. Prior to the incidents in question, Odom's Bar was operated by Mr. and Mrs. Andrews with the help of four women whom they employed. Mr. Andrews had previously given instructions to his employees that they were not to allow drugs of any type to be used or sold on the premises. On the date of Johnny Andrews' arrest, agents for the Division of Alcoholic Beverages and Tobacco thoroughly searched the licensed premises and found no drugs. The clientele of Odom's Bar is primarily middle- aged persons. Prior to the incidents described in Paragraph 1 above, the licensee, Charles Andrews, had had no other violations of the law or drug related problems at the licensed premises. Once Mr. and Mrs. Andrews were notified of the charges and arrest warrant for their son, they cooperated with the police and also aided them in completing their arrest of Johnny Andrews. Although the Respondent testified that he had cautioned his employees against drugs on the premises, there was no evidence that he took any steps to ensure that the premises were being properly supervised and legally operated in his absence. There was no arrangement or plan whereby the licensee monitored what was occurring at the licensed premises in his absence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That a Final Order be entered finding the Respondent in violation of Florida statute 561.29, imposing a civil penalty of $1,000,and suspending Respondent's beverage license for a period of 60 days. DONE and ENTERED this 26th day of April, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1983. COPIES FURNISHED: William A. Hatch, Esquire Mr. Howard N. Rasmussen Department of Business Director, Division of Alcoholic Regulation Beverages and Tobacco 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Mr. Charles D. Andrews Mr. Gary Rutledge Highway 29, Odom's Bar Secretary, Department of Business Century, Florida Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether the Respondent committed the offense alleged in the Administrative Complaint dated August 14, 2012, and, if so, what penalties, if any, should be imposed.
Findings Of Fact PTL Associates, Inc., d/b/a 7 Eleven Store No. 32599A (PTL), is a convenience store located at 4401 Colonial Boulevard, Fort Myers, Florida 33912. Lucia D'Costa is the sole shareholder of PTL. Since October 12, 2011, and at all times material to this case, the Respondent has been licensed by the Petitioner to sell alcoholic beverages under license number BEV 4604710, Series 2APS. According to a document titled "Record of Inspection-- Official Notice," on July 19, 2012, an employee of the Respondent sold an alcoholic beverage to an underage individual after checking the individual's identification. The document advised the Respondent that a follow-up compliance check would take place within the subsequent 12 weeks. The Petitioner took no disciplinary action against the Respondent based on the July 19, 2012, compliance check. The Respondent has not been the subject of any prior disciplinary proceeding related to the license referenced herein. On August 2, 2012, the Petitioner conducted an undercover compliance check as a follow-up to a compliance check done on July 19, 2012, to determine whether the Respondent was selling alcoholic beverages to underage individuals. The compliance check was performed by two of the Petitioner's agents, Jennifer Nash and David Foraker, with the assistance of a 16- year-old female identified as Investigative Aide FT0205 (IA). On August 2, the IA entered the store accompanied by Agent Nash, while Agent Foraker remained in the vehicle outside the store. Ms. D'Costa was present in the store, behind the counter and operating multiple store sales registers. Two employees were also present, occupied with various cleaning tasks. The IA walked to the beverage cooler and withdrew a 16 ounce Coors Light, carried it to the counter area, and stood in line to pay for the beer. Ms. D'Costa took the beer from the IA, scanned the beer into the sales register, and completed the transaction. Ms. D'Costa did not ask the IA to produce any form of identification to verify the IA's age. While the transaction occurred, Agent Nash observed the AI and Ms. D'Costa, initially from inside the store, and then from outside while looking through large windows on the storefront. Although while in the store Agent Nash spoke to Ms. D'Costa to ask for driving directions, Agent Nash did not interfere with the sale of beer to the IA. There is no evidence that Agent Nash prompted Ms. D'Costa to sell the beer to the IA, or that she interfered in the transaction in any way. Some, but not all, of the Respondent's cash registers have software to prompt a register operator to verify a customer's age during the sale of an alcoholic beverage. When Ms. D'Costa sold the beer to the IA, she used a register that did not prompt the sales clerk to verify the customer's age. Ms. D'Costa testified that she does not usually operate the sales registers and that the clerks are usually responsible for the counter operation. She testified that, at the time of the compliance check on August 2, 2012, the two employees present were cleaning the store in anticipation of a monthly inspection, and, therefore, Ms. D'Costa was working alone at the sales registers. The inspection referenced by Ms. D'Costa is a routine monthly inspection conducted by corporate representatives at a time unknown to the licensee until the representatives arrive. It is reasonable to presume, given the nature of the inspection, that store cleaning would be an ongoing obligation of a licensee. The testimony fails to suggest that a licensee is exempt from compliance with laws prohibiting underage alcohol sales when employees are busy. After completing the purchase, the IA left the store and delivered the beer to Agent Foraker. The Petitioner's agents then went into the store to notify Ms. D'Costa that the transaction had taken place and to deliver to her a "Record of Inspection--Official Notice" and a "Notice to Appear." Ms. D'Costa testified at the hearing that she believed the IA to be at least 30 years of age on August 2, 2012. The IA participated in seven undercover compliance checks on August 2, 2012. The Respondent was the only store that did not check the IA's identification during a compliance check. Ms. D'Costa also testified that the franchise agreement could be breached by a suspension of the alcoholic beverage license. The franchise agreement was not offered into evidence at the hearing. The Petitioner has a written policy of not utilizing children or other relatives of the Petitioner's employees as IAs. At the time the compliance check was conducted on August 2, 2012, the Petitioner was apparently unaware that the IA was related to an employee of the Petitioner. After the Petitioner learned of the relationship, the IA was not again utilized in making compliance checks. The evidence fails to establish that the relationship between the IA and an employee of the Petitioner prompted Ms. D'Costa to sell the beer to the IA without checking whether the IA was of legal age to purchase alcohol.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order suspending the license referenced herein for a period of seven days and imposing a fine of $1,000 against the Respondent. DONE AND ENTERED this 27th day of March, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 27th day of March, 2013. COPIES FURNISHED: Andrew R. Fier, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399 Timothy Joseph Perry, Esquire Oertel, Fernandez, Bryant and Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Allen Douglas, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1020
Findings Of Fact Respondent holds license No. 16-816-SR, 4-COP, which is a special restaurant license. At about quarter of ten on the morning of September 13, 1977, Emil Marrero, James F. McAuley and Joe L. Nato, all of whom were then beverage officers, arrived at respondent's place of business. Officer Marrero purchased a fifth of rum from Elizabeth Boyd, who was behind the counter in the package store portion of respondent's premises. Ms. Boyd told Officer Marrero that, if he wanted a meal, he "would have to go to the kitchen around the building." (T29). Officers Marrero and Mato went outside the building in search of the kitchen but found the back door to the kitchen locked, Back inside, officer Nato discovered some slips of paper and cigarette packages that lacked tax stamps. Then respondent's employee Margaret Faye Lewis was asked where the kitchen was, she pointed to a padlocked door which John Davis, another of respondent's employee unlocked for the beverage officers. With some difficulty, the beverage officers located the kitchen, where they found respondent's cook, James Dowling. In response to the officers' questions, Mr. Dowling said that he had opened the kitchen that morning at quarter or half past ten as he customarily did seven days a week; that he ordinarily closed the kitchen at four in the morning; and that the business was open for the sale of liquor from seven in the morning till two the following morning. Officer Marrero wrote out a statement for Mr. Bowling's signature reciting the opening and closing times Mr. Dowling had related to him. Petitioner's exhibit No. 3. At this point, Robert H. Close, respondent's president, appeared and asked to read the statement, after which he said: These are a bunch of fucking lies. The restaurant is open at 7:00 A.M. in the morning. You have got no fucking right coming in here and telling my employees to sign anything. (T54) As a result of this outburst, Mr. Dowling declined to sign the statement Officer Marrero had prepared; and an argument between Mr. Close and Officer Marrero ensued. On respondent's premises, Officer McAuley counted "153 chairs, 32 2' by 2' tables, 36 cocktail tables and two tables capable of seating four people." Petitioner's exhibit No. 9. He found 43 spoons in the kitchen along with various victuals. Officer Marrero never actually requested a meal of any of respondent's employees. Once he had identified himself as a beverage officer, he testified, he "imagine[d] a roach in the corner would have jumped up and served [him] a meal if [he] so desired to have one." (T71). Although not assigned to the kitchen, Mr. Davis and Mrs. Lewis were available, before Mr. Dowling's arrival on September 13, 1977, to cook for respondent's patrons. Mrs. Lewis testified without contradiction that a full course meal could have been prepared if one had been requested. (T87). On September 13, 1977, "the Broward County Health Department . . . cited the [respondent] for being in violation of certain sanitary codes established by the State or County." Petitioner's exhibit No. 6. See petitioner's exhibit No. 4. On the same day, on behalf of petitioner, Officer Marrero gave respondent official, written notice that it had "been closed by the county health department & any further sale of alcoholic beverages without maintaining the SR requirement is in violation of [law]." Petitioner's exhibit No. 5. On the following day, Officers Marrero, McAuley and Mato returned to respondent's premises and waited outside while Officer Bates went in and, at twenty past two in the afternoon, bought a bottle. After Officer Bates' purchase, respondent was charged with "selling alcoholic beverages, being closed down by the Health Department." (T63). At three o'clock on the afternoon of September 14, 1977, representatives of the Broward County Health Department inspected respondent's premises and lifted the closure order, at the conclusion of the inspection. Although Mr. Close testified otherwise, respondent served no food on September 14, 1977, before the closure order was lifted. Respondent sold alcoholic beverages on September 14, 1977. On September 13, 1977, Officer McAuley asked Margaret Lewis if "the records" were on the premises. She answered affirmatively and led Officer McAuley to certain invoices and other records which he reviewed briefly. Later he asked Mr. Close "for all the invoices pursuant to the rule;" (T97) and Mr. Close was "requested . . . by official notice . . . [to] produce all documents concerning the operation of his business . . . (T123). In response to this request, Mr. Close furnished the beverage officers all of respondent's records then on the premises. Not on the premises were liquor invoices and other records dated on and after September 1, 1977, and invoices reflecting purchases of food. These records were at respondent's bookkeeper's at the time of the beverage officers' visit on September 13, 1977, but had been returned to respondent's premises by the time beverage officers returned on September 14, 1977. On September 13, 1977, the beverage officers left with all the records respondent had furnished. The beverage officers did not inquire about the additional records on September 14, 1977, and respondent's employees did not mention them at that time. Respondent's employees never took the additional records to petitioner's office. Robert Close gained control of respondent and respondent's license in 1968. On April 13, 1970, respondent paid a stipulated civil penalty of one hundred dollars ($100.00), because a patron bought liquor in the package store portion of respondent's premises and shared it with a minor in the lounge portion of respondent's premises. On March 2, 1971, respondent paid a civil penalty of one hundred fifty dollars ($150.00) in connection with an alleged violation of Rule 7A-3.15(b), Florida Administrative Code. On July 2, 1975, respondent paid a civil penalty of seventeen hundred fifty dollars ($1,750.00) after a notice to show cause alleged the following matters: On the 19 day of July 1973, on your licensed premises, SUNRISE EMBASSY LOUNGE, FREDDY THOMAS, your agent, servant or employee, did sell to Agent L. LAWSON BROWARD COUNTY SHERIFFS OFFICE, for the sum and consideration of $20.00 U.S. Currency, a quantity of narcotics, to wit Heroin. This being in violation of F. S. 893.13 (1A1). On or about September 21, 1973, on the above described premises, you, your agent, servant or employee did continue the sale of alcoholic beverages when the service of full course meals had been discontinued, in violation of Florida Alcoholic Beverage Rule 7A-3.15. On or about September 21, 1973 on the above described premises, you failed to maintain necessary china and table ware to serve 200 persons, in violation of Florida Alcoholic Beverage rule 7A-3.15(e). On or about October 17, 1973 investigation revealed that you, SUNRISE EMBASSY LOUNGE INC., D/B/A SUNRISE EMBASSY LOUNGE, did fail to submit within 10 days a certified copy of minutes of stockholders meeting at which a change of officers was effected, in violation of Florida Alcoholic Rule 7A-2.07(2). On or about September 21, 1973 investigation revealed that on August 8, 1973, August 30, 1973, September 6, 1973, September 13, 1973, you, SUNRISE EMBASSY LOUNGE, INC., D/B/A SUNRISE EMBASSY LOUNGE did fail to maintain the sanitary code of Florida, in violation of F. S. 381.031 and chapter 100.13 FAC Sanitary Code of Florida. On October 15, 1975, respondent paid a civil penalty in the amount of two hundred fifty dollars ($250.00) for failure to disclose to petitioner a change in its corporate officers. Respondent employs seven or eight persons. Rule 7A-3.15(b) Florida Administrative Code, for alleged violations of which respondent paid civil penalties, has since been adjudged inapplicable to licenses like respondent's. Thayer v. State, 335 So.2d 815 (Fla. 1976).
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner impose a civil penalty against respondent's license in the amount of two thousand dollars ($2,000.00). DONE and ENTERED this 11th day of January, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dennis E. LaRosa, Esquire Staff Attorney 725 South Bronough Street Tallahassee, Florida 32304 Robert C. Stone, Esquire Suite 400, Center Court Building 2450 Hollywood Boulevard Hollywood, Florida 33020
The Issue Whether Respondent committed the violations alleged in the Emergency Order of Suspension and Notice to Show Cause and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating licensed alcoholic beverage establishments. At all times material to the allegations in this case, the Respondent, Café Iguana, Inc., doing business as Café Iguana, held alcoholic beverage license number 23-01868 which is a series 4-COP license. At all times material to the allegations in this case, Iguana was located at 8505 Mills Drive, D-75, in Miami, Dade County, Florida. At all times material to the allegations in this case, the following persons were officers and/or shareholders of the Respondent corporation: Mark Vasu, Shannon Miller, David Lageschulte, and Gerald Joe Delaney. Prior to the issuance of the Emergency Order of Suspension which is at issue in this proceeding, the Department conducted an investigation of alleged acts of recurring illegal narcotic activity on the licensed premises. In furtherance of such investigation Special Agent Bartelt, Detective Fernandez, and Detective Robertson entered the licensed premises in an undercover capacity for the purpose of purchasing illegal substances. In this regard Special Agent Bartelt observed the two detectives as they attempted to acquire illegal substances from persons within the licensed premises. The investigation at Iguana began on March 15, 1997, and was concluded on June 12, 1997. In total, the detectives made seven purchases of a substance which was later tested and determined to contain cocaine. Respondent did not object to, nor dispute the accuracy of, the lab reports received into evidence which confirmed the substances contained cocaine. As to the purchase which occurred on March 15, 1997, Detective Fernandez approached a female bathroom attendant and represented that she wanted "to get hooked up." According to Detective Fernandez this type of language is commonly used to ask for illegal drugs. She sought cocaine, by implication in the language of such transactions. The attendant referred her to an individual known in this record as "Anthony" who was the men's restroom attendant. Standing in the doorway to the men's restroom, Detective Fernandez exchanged $20.00 for approximately one-half gram of cocaine. The cocaine was in a clear plastic zip-lock style bag that was no larger than two inches by two inches. Upon receipt of the bag, Detective Fernandez placed it in her pocket and left the restroom area. All of the transactions later described were completed in the same manner. Detective Fernandez made no effort to be noticed by the club's management. She was not conspicuous in the purchase of the illegal substance. Instead, she made every effort to mimic her perception of a drug transaction. The next purchase occurred on April 4, 1997. On this date, Detective Fernandez went back to Anthony and again requested drugs. She was told to wait. Approximately forty-five minutes later she returned to the doorway area adjacent to the men's room. At that time other females were also waiting for Anthony. After transferring $25.00 to the attendant, Detective Fernandez received approximately one-half gram of cocaine. During this purchase, Detective Fernandez believes Respondent's employees may have walked past to use the restroom but could not verify that anyone observed her transaction. Additionally, Detective Fernandez did not observe a sale of a similar type to the other females in line at the restroom corridor. On April 12, 1997, Detective Fernandez went to Anthony and asked him if she could "get a half." Noteworthy on this date was the fact that Detective Fernandez went inside the men's room to make the transaction. During her stay in the restroom she saw a bartender and a security person who were using the facility. Neither asked why she was inside the men's restroom. Neither interfered with her discussion with Anthony. Instead, Anthony introduced her to a white male who was using the telephone in the room who is identified in this record as "Juan." Anthony reported that Juan was "my man." In exchange for $40.00 Anthony delivered approximately one gram of cocaine to Detective Fernandez. There is no evidence that the bartender or the security person observed any of the transaction which took place. On May 9, 1997, Detective Fernandez again went to Respondent's club and sought illegal drugs. This time she asked a bartender how to "hook up." He referred her to the restroom. Anthony was not at the men's room, so she went to the female attendant known in this record as "Rica." Inside the female's restroom Rica exchanged approximately one-half gram of cocaine for $25.00. On May 15, 1997, Detective Fernandez purchased one-half gram of cocaine from Anthony for $30.00. Later, during the early morning hours of May 16, 1997, Detective Fernandez made a second purchase from Anthony. Although there were other patrons of the bar within the restroom, there is no evidence that any of them witnessed either of these transactions. The final purchase by Detective Fernandez was on June 11, 1997. On this date she contacted Rica and again sought to purchase drugs. She handed Rica $30.00, and the attendant left the restroom and returned a short while later with approximately one-half gram of cocaine. Although there were numerous patrons entering and exiting the facility, there is no evidence that anyone observed Detective Fernandez receive the bag of cocaine. At all times material to the allegations of this case, Iguana was a popular club which was well attended on the nights of this investigation. The audio system for the club, although especially dominating on the dance floor, distributed music throughout the licensed premises. In this regard it is uncertain if any of the conversations between the undercover officer and the parties selling drugs could be easily overheard. As to the lighting system for the club, at all times material to this investigation, lighting would have been set at its lowest levels of illumination throughout the licensed premises. Consequently, only the restrooms would have been well- lit. As a result it is uncertain as to how visible transactions occurring outside the restrooms would have been. At all times material to the allegations of this case, the restroom attendants were not employees of Iguana or its management company but were contract personnel through a third party valet service operated by David Cook. Iguana paid Cook to provide restroom attendants. This contract was terminated on June 13, 1997, when Respondent learned of the attendants' alleged involvement in the illegal transactions described above. Further, Iguana notified Cook of its intention to assist in the prosecution of such individuals. Iguana is managed by a company known as Chameleon Concepts. In order to effectively identify and minimize potential losses for Iguana, Chameleon Concepts contracted with a company whose purpose was to audit operations to ensure the overall integrity of the business operation. This auditor, a forensic fraud examiner, was to identify losses or potential losses due to fraud, embezzlement, policy or procedure violations, or other improprieties. Thus, effective October 1, 1996, Iguana was voluntarily being reviewed by an independent company, with an on-going, monthly retainer, to determine if there were any potential improprieties. The auditor for the company, John Capizzi, found no violations of policy, alcoholic beverage rules, or regulations. Prior to the investigation of this case, Iguana employees were required to participate in responsible vendor programs. Prior to the investigation of this case, Iguana managers were required to participate in responsible vendor programs. Iguana management routinely conducts meetings wherein responsible vendor practices are discussed. Iguana and Chameleon Concepts have developed written employee handbooks and policies which specifically admonish employees regarding illegal substances on the licensed premises. Iguana employees and managers are instructed to advise the management of any suspected illegal substances on the licensed premises. In the past, Iguana has participated in campaigns designed to retain false identification used by suspected underage drinkers to gain entrance to licensed premises. The testimony of Mr. Vasu regarding efforts of the company to comply with all rules and regulations of the Department has been deemed credible and persuasive regarding Iguana's position on illegal drug transactions. Management would not condone or allow illegal drug sales if it were known to them. None of the officers or shareholders of Iguana were aware of the illegal drug transactions occurring on the licensed premises. The only Iguana employee alleged to have been connected to a sale was one incident wherein a bartender referred Detective Fernandez to the restroom. Cocaine is a controlled substance, the sale of which is prohibited by Florida law. None of the purchases described herein were of such a nature or were so conspicuously transacted that a reasonable person would have known illegal sales were taking place. None of the patrons of the club who testified for Respondent were aware that illegal drug sales took place within the licensed premises. The detective making the purchases did not act in a flagrant or open manner. Moreover, the detective did not attempt to verify whether or not bartenders, security guards, or managers employed by Iguana were aware of the restroom attendants' illegal activities. At best, one bartender knew to refer the detective to the restroom. In addition to selling illegal drugs, the restroom attendants handed out towels to club patrons and offered for sale personal toiletry items at tables maintained within the restroom. For a club patron to have money to purchase such items or tip the attendant would be a reasonable assumption.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order dismissing the Emergency Order of Suspension. DONE AND ENTERED this 23rd day of July, 1997, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July 1997. COPIES FURNISHED: Miguel Oxamendi, Senior Attorney Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Louis J. Terminello, Esquire Chadroff, Terminello & Terminello 2700 Southwest 37th Avenue Miami, Florida 33133-2728 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether the Respondent's alcoholic beverage license should be revoked, suspended, or otherwise disciplined for a violation of Section 562.11, Florida Statutes, a provision of the Florida Beverage Law, which prohibits the sale of alcoholic beverages to a minor. At the formal hearing the Petitioner called as witnesses: Thomas L. Stout, Bernard W. Cooper, Timothy J. Culley, and Craig Brady Cooper. Mr. Antonino Sciarrino testified on behalf of respondent. The Petitioner offered and had admitted into evidence two exhibits and the Respondent offered no exhibits into evidence. Both the Respondent and counsel for the Petitioner submitted proposed findings of fact and conclusions of law for consideration by the hearing officer. To the extent that those proposed findings and conclusions of law are inconsistent with the findings and conclusions contained within this order they were considered by the hearing officer and rejected as being unsupported by the evidence or unnecessary to the resolution of this cause.
Findings Of Fact At all times material to this action the Respondent was the holder of beverage license number 21-478, Series 2COP. This license was issued for the licensed premises located at 499 Goodlette Road, Naples, Florida. The licensed premises is a convenience store that also sells various types of food and dry good items plus sandwiches and beer. The Goodlette Food Mart, Inc. is owned and managed by Antonino Sciarrino, the President of the Respondent corporation. The Goodlette Food Mart opened for business on January 1, 1982. Prior to this time Mr. Sciarrino operated a deli in New York City where he also sold beer. Sometime during October, 1982 (the specific date being unknown) , Craig Cooper, a minor, 16 years of age was stopped by a Naples police officer and found to be in the possession of a six-pack of beer. This beer had been purchased by Craig Cooper at the Goodlette Food Mart and he informed the police officer of this fact. Mr. Cooper was asked by the police officer if he would be willing to cooperate in a controlled buy at the Goodlette Food Mart. Mr. Cooper indicated that he would. Subsequent to the October stop Craig Cooper agreed to cooperate with the police in making a controlled purchase of alcoholic beverages at the Goodlette Food Mart and on November 6, 1982, Mr. Cooper was contacted by a Naples police officer and was given cash. He was asked to go to the Goodlette Food Mart and to use the cash he had been given to attempt to purchase alcoholic beverages. From the police station Craig Cooper drove to the Goodlette Food Mart and Officer Culley of the Naples Police Department followed him. While Craig Cooper went inside the Goodlette Food Mart Officer Culley observed from the parking lot, Craig Cooper entered the Goodlette Food Mart and went directly to the cooler area where soft drinks and alcoholic beverages are kept. He removed a six-pack of Heineken Beer. He then proceeded to the cash register and paid for the beer. The cashier on duty was Robert Peterson. He did not question Craig Cooper or ask him for any identification at the time that Mr. Cooper paid for the beer. Mr. Cooper then left the store and turned the beer over to Officer Culley. At the time of the purchase by Craig Cooper, the manager Antonino Sciarrino was not present in the store. Mr. Sciarrino, was in the store 10 to 12 hours a day, but was generally not present in the evenings. Robert Peterson had been hired as a part-time employee approximately two or three months prior to November 6, 1982. Mr. Sciarrino had no prior problems with Robert Peterson and was not aware of any instances where he had sold beer to minors. At the time Robert Peterson was hired, he was instructed to not sell to minors and to always ask for and check identification prior to selling alcoholic beverages. There was also a sign posted in the employees room where they clock in and clock out which warned them that they could be criminally prosecuted for failing to check identification and for selling alcoholic beverages to minors. The Goodlette Food Mart had a policy against selling to minors and all employees were instructed regarding this policy and were required to check identification prior to selling alcoholic beverages. There were signs posted on the cooler and the cash register informing customers that minors were prohibited from purchasing alcoholic beverages and that identification was required, There was also a sign next to the cash register which reminded the cashier to check the customers' I.D. when purchasing alcoholic beverages. This sign also gave the date and year which the birthdate on the identification had to predate in order for the person to purchase alcoholic beverages. The purpose of this sign was to enable employees to more efficiently and more accurately check identifications. Immediately following notification of the November 6, 1982, sale to Craig Cooper, Mr. Sciarrino terminated Robert Peterson's employment with the Goodlette Food Mart.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED: That thee Respondent be found not guilty of the violation charged in the Notice to Show Cause and that the charge be dismissed. DONE and ORDERED this 14th day of October, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1983. COPIES FURNISHED: Janice G. Scott, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Antonino Sciarrino, President Goodlette Food Mart, Inc. 499 Goodlette Road Naples, Florida Gary Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue presented here concerns the accusation by the Petitioner directed to the Respondent that the Respondent, on or about January 24, 1980, did unlawfully have in her possession or permit or allow someone else to have in their possession, namely, Anthony Lewis Graham, alcoholic beverages, to wit: one partial quart bottle of Smirnoff Vodka, one partial quart bottle of Gordon's Gin and one 200 ml bottle of Gordon's Gin, on the licensed premises and it is further alleged that the substances were not authorized by law to be sold under the Respondent's license, contrary to Section 562.02, Florida Statutes.
Findings Of Fact The Petitioner in this action is an agency of the State of Florida which has as its purpose the regulation of those several licensees who sell alcoholic beverages and tobacco products in the State of Florida. The Respondent, Estelle Collins, is the holder of an alcoholic beverages license issued by the Petitioner, License No. 26-00766, Series 2-APS. This license allows the Respondent to sell beer and wine to be consumed off the licensed premises. The license is issued for the Respondent's premises located at 1152 East 21st Street, Jacksonville, Florida, where the Respondent trades under the name 21st Street Grocery. On January 24, 1980, Anthony Lewis Graham, one of the Respondent's patrons in her licensed premises, removed a box from his automobile which was parked on the street in the vicinity of the licensed premises. He carried the box which contained a partially filled quart bottle of Gordon`s Gin; a partially filled quart bottle of Smirnoff Vodka and a partially filled 200 ml bottle of Gordon's Gin into the licensed premises. These bottles contained liquor, that is, alcoholic or spiritous beverages that were not authorized to be sold at the licensed premises under the terms and conditions of the license issued to the Respondent. The box containing the liquor was carried in while an employee of the Respondent was working in the licensed premises and placed behind the meat counter. The box was left with the top opened. It is not clear whether the employee saw the bottles in the box prior to a routine premises inspection conducted by officers with the Division of Alcoholic Beverages and Tobacco. The inspection took place shortly after Graham had brought the alcoholic beverages into the licensed premises. When the officers entered the premises, they identified themselves to the employee working in the store and this employee left to get the licensee. The employee returned with the Respondent, Estelle Collins, and the officers commenced inspection of the premises. In the course of that inspection, they discovered the aforementioned bottles of alcoholic beverages in the box. They also noted other empty liquor bottles in the area of the meat counter and the service counter within the licensed premises. (There had been another occasion in February, 1979, when the Petitioner's officers had discovered empty gin and vodka bottles in the licensed premises, and this former situation brought about a citation to the Respondent but no penalty action was taken against the Respondent.) No testimony was developed on the matter of the instructions which the Respondent had given to her employees on the subject of keeping unauthorized forms of liquor out of the licensed premises. The only remark which was established by the hearing dealing with the question of keeping those items away from the licensed premises was a statement by Graham, who said that it was not unusual for him to go behind the service counter in the licensed premises. Following this inspection and the discovery of the alcoholic beverages, to wit: liquor bottles in the box, the Petitioner brought the present action against the Respondent.
Recommendation It is RECOMMENDED that the Notice to Show Cause/Administrative Complaint accusation placed against the Respondent, Estelle Collins, d/b/a 21st Street Grocery, License No. 26-00766, Series 2-APS, be DISMISSED. DONE AND ENTERED this 4th day of September, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1980. COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 J. Kennedy Hutcheson, Esquire 341 East Bay Street Jacksonville, Florida 32202
The Issue Whether respondent's alcoholic beverage license should be suspended or revoked for alleged violations of the Beverage Law, Chapters 561 and 562, Florida Statutes (1981).
Findings Of Fact At all times material hereto, respondent held alcoholic beverage license No. 15-388 2-COP, authorizing it to sell beer and wine at its business known as Golden Dolphin #2, ("licensed premises") located at 218-B Highway A1A, Satellite Beach, Florida. The licensed premises includes a bar, lounge, and stage where nude or partially nude dancers provide live entertainment. I. Alleged Violations Occurring On July 3, 1980 During the evening of July 3, 1980, Beverage Officers B. A. Watts and Kevin Ashcroft entered the licensed premises in an undercover capacity. Officer Watts sat down at a table and ordered a beer. Patricia Belle Gardener a/k/a "Peaches," employed by respondent, approached and sat down at his table. While they were talking, Anita Jackson, a waitress employed by respondent, approached and asked him, "Do you want to buy Peaches a drink?" or words to that effect. He turned to Peaches and asked her if she wanted a drink; she answered "Yes." He then ordered a wine cocktail for her and paid Ms. Jackson $5.00. (Testimony of Watts.) Later that evening, Peaches asked Officer Watts if he would buy her another drink. He replied that the price was rather steep but that, if she got part of it, he would agree. After she replied that she received a commission from the sale, he agreed. She summonned waitress Jackson, and told her that he wanted another drink. Ms. Jackson asked Officer Watts if he wanted a bottle, which she said was a "better deal." (Tr. 32) After hearing the price, he declined and ordered her another wine cocktail. (Testimony of Watts.) Officer Watts then asked Peaches what time she got off work and if she had a date. She told him the time, and that she did not have a date. He asked if she liked to have a good time, to which she replied, "Yes, how much money have you got?" (Tr.33) He answered "How much will it take?" and offered her $20. She said "that's not enough." He asked, "[H]ow about $30?" (Tr.33) She agreed. He asked, "What will $30 get me?" and she replied, "Half and half," which--in street talk--means oral and sexual intercourse. (Testimony of Watts.) Officer Ashcroft, who had entered the premises with Officer Watts, had seated himself at the bar. He was approached by Laurie Thornton, another female dancer employed by respondent, who asked, "How about buying me a drink?" or words to that effect. He declined, after which she approached another patron at the bar. (Testimony of Ashcroft.) No evidence was adduced to show that respondent, through its owners or managers, knew that its employees were asking or soliciting customers to purchase alcoholic beverages for the employees' consumption. II. Alleged Violations Occurring On February 19, 1981 In February, 1981, DABT launched another investigation of the licensed premises. On February 19, 1981, Beverage Officers Fred Dunbar and Rufus Blanton entered the licensed premises, set at a table near the dance stage, and ordered beers from Helen Davis, a waitress employed by respondent. McKinney Rojas, a/k/a Tia Marie, a dancer employed by respondent, approached them and sat down at their table. Almost immediately, waitress Davis appeared and asked "Are you going to buy Ti [meaning Tia Marie] a drink?" (Tr.-73) Officer Dunbar replied, "Ti ain't said nothing about wanting a drink." (Tr.-73) Tia Marie then explained: Fred, let me explain it to you. This is a beer and wine bar, and it's against the rules for us to drink beer. What I'd like for you to do is buy me a bottle of champagne. Helen will bring it to us in a bucket of ice with two glasses and we can sit here and drink it together, and we can talk. (Tr.-73) Officer Dunbar agreed and ordered a small (6.3 oz.) bottle champagne for $10.00. Waitress Davis then brought it to the table with a bucket of ice and one glass. He continued to drink his beer; she drank the champagne and remained at the table for approximately 45 minutes, then excused herself because it was her turn to dance on stage. (Testimony of Dunbar, Blanton.) Tia Marie then returned to the beverage officers table. Almost immediately waitress Davis appeared and asked Officer Dunbar if he was going to buy Tia Marie another bottle. He declined. Tia Marie then stood up, and asked Officer Blanton if he was going to buy her a bottle. Waitress Davis asked him the same question. He agreed, waitress Davis brought another bottle of champagne, and he paid her $10.00. During this conversation, Tia Marie explained to the officers that she was getting a 25 percent commission for the drinks customers bought for her; that they were really paying for her company, not for the champagne. (Testimony of Blanton, Dunbar.) During that same evening, Beverage Officer Watts entered the licensed premises and sat at another table near the dance stage. He ordered a beer from waitress Davis. Shortly thereafter, "Sabal," a female dancer employed by respondent, sat down at his table and engaged him in conversation. A few minutes later, waitress Davis appeared and asked if he wanted to buy Sabal a drink. He turned to Sabal and asked her what she wanted. She replied, "Helen [Davis] can explain it to you." (Tr.-46) Ms. Davis then explained that he could buy a bottle of champagne for Sabal for $10.00. He agreed. (Testimony of Watts.) After Sabal finished drinking the champagne, she asked Officer Watts if he would buy her another bottle. He replied that it was a rather steep price, that he might agree if she got something out of it. After being assured that she received a commission of $3.00 per bottle, he agreed to purchase her another for $10.00. Waitress Davis, again, brought it to the table. After finishing her second bottle, Sabal told Officer Watts that it was her turn to dance and went to the nearby stage. (Testimony of Watts.) III. Alleged Violations Occurring On February 26, 1981 On February 26, 1981, the three beverage officers (Watts, Dunbar and Blanton) returned to the licensed premises. Officers Dunbar and Blanton again sat at a table near the stage, Officer Watts sat at another. While seated at their table, Officers Dunbar and Blanton were approached by "Dominique" (later identified as Madeline C. Droege), a female dancer employed by respondent. Dominique was wearing black panties, stockings with a garter belt, high-heeled shoes, and a silk elastic-like material covering her breasts. Almost immediately, waitress Davis appeared and asked, "Are you going to buy Dominique a drink?" (Tr.-77) Officer Dunbar replied, "We're not going to go through all that again are we?" (Tr.-77) Waitress Davis laughed, and Dominique said she would like to have some wine. But before he agreed to buy her wine, the conversation turned to the subject of lap dancing. (Testimony of Dunbar, Blanton) Dominique told Officer Blanton that she would perform a lap dance for him for $5.00. He agreed. When the next song started, she removed the silk material covering her breasts and straddled Officer Blanton's lap. Wearing only panties and high-heeled shoes, she simulated sexual intercourse by rotating and gyrating the lower part of her body. During the lap dance, she massaged her breasts with her hands. Later that evening she also performed the same type of dance on Officer Watts, for which she was also paid $5.00. (Testimony of Blanton, Watts.) After Dominique departed, Michelle Smith, another female dancer employed by respondent, approached the officers' table and asked if she could join them. They agreed, she sat down, and then waitress Davis appeared, asking, "Are you going to buy Michelle a bottle of champagne?" (Tr.-80) At first, he resisted. But Miss Smith encouraged him, "Oh, come on, Fred, buy me a bottle of champagne. (Tr.-81) He finally agreed, and waitress Davis brought a bucket of ice, a glass, and a small bottle of champagne, for which he paid $10.00. Miss Smith also told the officers that she received a commission on the champagne sales. After drinking half of the bottle she left the table, explaining that she had to go backstage. (Testimony of Dunbar.) She returned to the table a few minutes later, finished the bottle of champagne, and requested another. At the same time, she turned the bottle upside down in the ice bucket and admitted that this was a signal to the waitress that she wanted another bottle. Waitress Davis then returned to the table and--at Miss Smith's request--Officer Dunbar purchased her a second bottle of champagne. She later requested that he purchase a third bottle, but he declined, explaining that he was out of money. She then left the table and performed a striptease on the nearby stage. (Testimony of Dunbar.) Before leaving the premises, the two officers were approached by Tia Marie, the same dancer whom they had met on February 19, 1981. She sat at the table and asked Officer Blanton to buy her a drink. He agreed and waitress Davis returned with a bottle of champagne. Tia Marie consumed the champagne, then turned the bottle upside down on the ice bucket. (Testimony of Dunbar, Blanton) That same evening, Office Watts--who had seated himself at another table nearby--was also approached by Dominique, who sat down and engaged him in conversation. Waitress Davis soon appeared and asked if he would like to buy the lady a drink. He said the lady had not asked for one; Dominique responded that she would like to have one. She then ordered a bottle of champagne for which Officer Watts paid the waitress $10.00. (Testimony of Watts.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license be revoked for multiple violations of the Beverage Law. DONE and RECOMMENDED this 20th day of April, 1983, 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 20th day of April, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Samuel S. Henderson, Esquire and Jerrold A. Bross, Esquire 1365 North Courtney Parkway, Suite D Merritt Island, Florida 32952 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
