The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on January 15, 1982, and issued certificate number 19-82- 002-10. At all times pertinent hereto, Respondent was a certified law enforcement officer, and was employed by the City of Miami Police Department as a police officer. On May 31, 1985, a drug "rip-off" occurred in Miami, Florida, at Nuta's Boat Yard. Approximately 187 kilos of cocaine were taken. On July 12, 1985, a second drug "rip-off" occurred in Miami at the Tamiami Marina. Between 400-450 kilos of cocaine were taken. On July 28, 1985, a third drug "rip-off" occurred in Miami at Jones Boat yard. Approximately 450 kilos of cocaine were taken. Several City of Miami police officers were involved in these three drug rip-offs and the subsequent resale of the stolen cocaine. The subsequent prosecution of these cases became known as the "Miami River Cops Cases". Respondent Zabala did not participate in any of these three drug rip-offs and he has not been prosecuted criminally. Rudolfo Arias , Regino Capiro, and Carlos Pedrera are former City of Miami police officers who were involved in the Miami River Cops Cases and who were, at the time of the formal hearing, incarcerated in the federal prison system. Mr. Pedrera was called as a witness, but he was withdrawn as a witness before he gave any substantive testimony because he refused to testify. Mr. Arias had agreed as part of his plea agreement to implicate and to testify against other law enforcement officers in exchange for certain benefits that he received. Although Mr. Arias received no direct benefit for his testimony in this proceeding, his plea agreement required that he testify against those he had incriminated. Mr. Pedrera refusal to testify was in spite of a plea agreement similar to that of Mr. Arias. Mr. Arias was an officer with the City of Miami Police Department in 1985 who knew Respondent as a fellow officer and as a former neighbor. The following allegations are based on information provided by Mr. Arias to Agent James E. Judd during the course of his debriefing by the Federal Bureau of Investigation: 2. a) On or about dates in April 1985, Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully fail or refuse to report to his superiors or otherwise take official action upon learning that fellow officers, including Felix Beruvides and Ricardo Perez, had committed, and intended to commit in the future, the crimes of possession of in excess of 28 grams of a mixture containing cocaine and theft. On or about a date in April 1985, the Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully agree, conspire, combine or confederate with Felix Beruvides, Armando Estrado, Roman Rodriguez, and Armando Un-Roque, to be in actual or constructive possession of more than 28 grams of a mixture containing cocaine, a controlled substance defined by Section 893.03, Florida Statutes. On or about a date in April 1985, the Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully attempt to be in actual or constructive possession of more than 28 grams of a mixture containing cocaine, a controlled substance defined by Section 893.03, Florida Statutes. These allegations stem from information Mr. Arias gave regarding the alleged attempted rip-off of cocaine from a freighter on the Miami River on an unknown date in 1985. The last name of the captain of this freighter was "Rhoda", and this incident was referred to at the hearing as the Rhoda incident. Respondent allegedly drove a fellow law enforcement officer, Felix Beruvides, to meet with certain men as part of a conspiracy to steal certain drugs from this freighter. These men, some of whom were referred to as Marielitos, planned to forcibly enter the freighter using their weapons and to steal cocaine that had been smuggled into Miami on the freighter. Mr. Arias was not present at this drug rip-off and his knowledge of this incident is based exclusively on his conversations with the Respondent and with Mr. Beruvides. Mr. Beruvides was not presented as a witness at the formal hearing. It was the conclusion of Mr. Arias from his conversations with Respondent that the Respondent knew that Mr. Beruvides was engaged in wrongdoing, but that Respondent had not been deeply involved in the Rhoda conspiracy. Mr. Arias testified that Respondent may have functioned as a lookout, but that, at a minimum, he was aware of this criminal activity and that he did not report it to his superiors. Mr. Arias's testimony as to conversations he had had with Respondent was vague as to when the conversation(s) occurred and as to what Respondent said. Mr. Arias had never seen Respondent in the possession of cocaine or other drugs. Lieutenant Paul Shepard testified as to certain hearsay statements and as to a photographic lineup identification made by one Armando Un Roque, one of the Marielitos supposedly involved in the Rhoda rip-off. Mr. Un Roque did not testify at the formal hearing. Mr. Un Roque identified Respondent as being the driver of a red Trans Am who met with himself, Mr. Beruvides, and others when the Rhoda drug rip-off was planned. Mr. Un Roque told Lt. Shepard that he and others boarded the freighter, but that they abandoned their attempted rip-off after realizing that the ship was too big for them to search by themselves. 1/ The evidence presented by Petitioner of Respondent's knowledge and possible participation in the Rhoda rip-off is met by Respondent's credible denial of any knowledge as to the alleged events. Although Respondent was driving a red Camaro (which is similar in style to a Trans Am) during the time these events allegedly occurred, his testimony that he had given Mr. Beruvides a ride home following their shift in his red Camaro and that they stopped at a convenience store patronized by Marielitos provides a plausible explanation as to how Mr. Un Roque acquired that information. Additionally, FBI Agent Judd testified that the Rhoda rip-off never actually occurred. The conflicts in the record relating to the allegations found in Paragraph 2(a), (b), and (c) of the Amended Administrative Complaint are resolved in favor of Respondent and against Petitioner. It is concluded that the Petitioner has failed to establish by clear and convincing evidence the factual basis for those allegations, to-wit, that he conspired to participate in this alleged criminal activity or that he was aware of that activity. The remaining allegations of the Amended Administrative Complaint pertain to information given to FBI Agent Judd by Mr. Arias during his debriefing as to money Mr. Arias gave to Respondent. Those allegations, from Paragraph 2 of the Amended Administrative Complaint, are as follows: On or about a date in July 1986, the Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully solicit, request, accept or agree to accept money, to-wit: $1,000 in U. S. currency, as an inducement to testify or inform falsely, or withhold testimony or information, upon his testimony as a witness in a proceeding instituted by a duly constituted prosecuting authority of the State. On or about a date in July 1986, the Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully accept from Rudolfo Arias, $1,000 in U. S. currency, knowing or believing the money to be the proceeds of an unlawful controlled substance transaction. The original indictment of Mr. Arias was handed down in December 1985, but ended in a mistrial. Mr. Arias was among those defendants reindicted in federal court in 1986. Following the rearrest of Mr. Arias and his incarceration pending trial for his alleged involvement in the Miami River Cops cases in 1986, the court held a bond hearing to determine whether Mr. Arias would be released from jail on bond and, if so, the appropriate amount of bond. Respondent was contacted by Mr. Arias's wife and by his father and asked to testify on behalf of Mr. Arias as a character witness at the bond hearing. Respondent agreed to do so and voluntarily made himself available to the court. His testimony at the bond hearing was not necessary since the court limited the amount of character testimony that would be heard. At no time prior to this bond hearing had Respondent been offered any financial inducement to testify. Following his discharge from jail, Mr. Arias visited Respondent's home and gave to the Respondent the sum of $1,000 and a bottle of whiskey. Mr. Arias testified that the $1,000 was a gift to Respondent and was in appreciation for his being available at the bond hearing and for his willingness to testify. Mr. Arias testified that the money he gave to Respondent was drug money, but that he never told Respondent the source of the funds. Mr. Arias believed that the Respondent should have known that the source of the $1,000 was from drug transactions because he and the Respondent had engaged in general conversations as to ways to make money illegally. Respondent admitted that Mr. Arias gave to him the sum of $1,000 and the bottle of whiskey. Respondent testified that $500 of that sum and the bottle of whiskey were gifts, but that the remaining $500 of the sum given to him by Mr. Arias was in repayment of a loan that Respondent had made to Mr. Arias. Respondent testified that he had previously loaned to Mr. Arias's the sum of $500 so that Mr. Arias's girlfriend could have an abortion without Mr. Arias's wife finding out. Mr. Arias admitted that his former girlfriend had had an abortion, but he denied that he had borrowed money from Respondent to secretly pay for the abortion or that any part of the $1,000 was in repayment of a loan. This conflict in the testimony is resolved by finding that Mr. Arias gave to Respondent the sum of $1,000 and a bottle of whiskey following the July 1986 bond hearing and that at least $500 of that sum was a gift in appreciation for his being available at the bond hearing and for his willingness to testify. The evidence does not establish that the money was in exchange for Respondent's willingness to provide false testimony. Mr. Arias maintained that he was innocent of the charges brought against him until after he had given Respondent the $1,000 in July 1986. Mr. Arias did not admit his guilt to these charges until 1987. While Respondent may have had a reasonable basis upon which to speculate as to the source of the money he had received from Mr. Arias, he was not told the source of these funds by Mr. Arias and he had no direct knowledge as to the source of these funds. It is concluded that there was insufficient evidence to establish that he knew that the funds had been illegally obtained.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which dismisses the charges brought against Respondent, Edwin M. Zabala. RECOMMENDED in Tallahassee, Leon County, Florida, this 3rd day of July, 1991. CLAUDE B. ARRINGTON 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 3rd day of July, 1991.
The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered?
Findings Of Fact Bonita Sneiderman, a/k/a Bonita Mattingly (Ms. Mattingly), is a Caucasian female born March 17, 1953. At the time of the events complained about in this proceeding, Ms. Mattingly was 53 years old. Ms. Mattingly was then known as Ms. Sneiderman and was single. Ms. Mattingly married and changed her name shortly before the hearing in this case. Dillards, Inc., is a corporation that operates a chain of department stores, referred to as Dillards. In many of the Dillards stores, there are styling salons. The Dillards department store at the Orange Park Mall in Orange Park, Florida is referred to as Store #232. During the time period relevant to this case, Susan Konstantatos was the Salon Manager of the salon at Store #232. On July 26, 2005, Ms. Konstantatos attended a manager's meeting, in which she received and discussed new policies for the salons. One such policy dealt with the schedules for salon employees and stated that all new hires would work five-day, full-time schedules. This policy, however, did not necessarily apply to employees already employed at the salons. For example, employees that worked in the Iveys salon before Dillards took over what used to be the Iveys store were considered to be "grandfathered in." Dillards honored whatever scheduling terms the employees had negotiated when taking their positions with Iveys. George Craywick, Cynthia Anderson and Marie Cox were three such salon employees. In September 2005, Ms. Mattingly applied for and received a position as a hair stylist in Dillards Store #232. Her application for employment with the store indicates that she applied for a full-time position. The application also indicates that she was hired for a full-time position. On September 21, 2005, Petitioner attended a new employee orientation session and signed the new employee orientation sheet, acknowledging that she had received orientation on Respondent's Associate Work Rules and Attendance Policy. Petitioner also signed an Associate Acknowledgment Form indicating that she received and understood Respondent's Associate Work Rules and General Policies. The Associate Work Rules and General Policies for Dillards reiterated the importance of attendance and provided notice that a "no show" would not be tolerated and would result in termination of employment. Among the stylists' job duties was an activity called "instant eventing." Instant eventing was an activity designed to generate interest in using the salon's services. Stylists could choose the type of instant eventing they would perform, such as handing out business cards, setting up a paraffin wax table and offering demonstrations, or setting up a color table with hair color swatches. Petitioner's chosen method of instant eventing involved setting up the paraffin wax demonstration. Instant eventing not only created interest in the salon, but hopefully helped new stylists to establish a following for their services. Stylists were expected to participate in instant eventing when they had no appointments. As a consequence, the more customers a stylist had, the less time he or she had to devote to instant eventing and the less stylists were expected to participate in the activity. Petitioner complains that George Craywick was not required to instant event and claims that she never saw him participate in any instant eventing activity. Mr. Craywick had more customers than any other stylist working at the Dillards salon. As a result of the number of repeat customers he served, he did not have the need for or the opportunity to engage in the same amount of instant eventing that Petitioner had. There is evidence that Mr. Craywick participated in a color table as an instant event, but it is unclear whether his participation in this activity was during the time that Petitioner was employed. Petitioner admitted that while she never saw Mr. Craywick participate in instant eventing, she had no knowledge as to whether he participated at times when she was not working with him. During May 2006, all of the salon's stylists at Store #232 were scheduled to work five days per week and one Sunday per month. When an employee worked on Sunday, Ms. Konstantatos attempted to schedule another day off for the employee during that week. Often the day off would be Monday, but the coverage needs of the salon would control. Mr. Craywick often worked on his scheduled days off at Ms. Konstantatos' request to ensure overage for the salon. Others sometimes did the same. Petitioner was scheduled to work Sunday, May 7, 2006. On or about May 1, 2006, Ms. Konstantatos checked the posted schedule and saw that Petitioner's name had been crossed off the schedule for Monday, May 8, 2006. Ms. Konstantatos had not removed Petitioner from the schedule and assumed that Petitioner had crossed her name off because she was working Sunday. Ms. Konstantatos needed Petitioner to work Monday, May 8, 2006, in order to ensure that the salon was adequately staffed. Petitioner had not worked the previous Monday. Ms. Konstantatos left Petitioner a note stating that Petitioner needed to work on Monday, May 8, 2006. After receiving the note, Petitioner called Ms. Konstantatos on Wednesday, May 3, 2006, and told her she could not work on Monday because she had made arrangements to go out of town that day. Petitioner's regular day off is Tuesday. Ms. Konstantatos advised that she needed Petitioner to work Monday to make sure that there was proper coverage for the salon, but that she could give Petitioner Wednesday off so that her days off would be consecutive. Petitioner insisted that she could not work on Monday, May 8, 2006. Ms. Konstantatos informed her that if she did not work on Monday, she would be considered to have abandoned her job and her employment would be terminated. Whether or not she worked on Monday, May 8, 2006, remained Petitioner's choice. Petitioner worked Thursday through Saturday, May 4-6, 2006. On Saturday evening, Petitioner packed up her belongings and left a note indicating that she had arranged for someone else to cover her shift on Sunday and would not be at work on Monday. She never returned to work because she considered herself to have been fired. On May 11, 2007, Respondent terminated Respondent for job abandonment. Between September 2005 and May 2006, Respondent terminated several other salon employees for job abandonment or excessive absenteeism. Those employees were both male and female, married and single. Their ages ranged from 21 to 35. After Petitioner's termination, Ms. Konstantatos hired Debra Doss as a stylist. At the time she was hired, Ms. Doss was a 49-year-old single female.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's complaint of discrimination. DONE AND ENTERED this 10th day of October, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2007. COPIES FURNISHED: Bonita Y. Mattingly 2040 Wells Road, Apartment 2-E Orange Park, Florida 32073 Grant D. Petersen, Esquire Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 100 North Tampa Street, Suite 3600 Tampa, Florida 33602 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, a certified law enforcement officer, committed the offenses alleged in the administrative complaint and the penalties, if any, that should be imposed.
Findings Of Fact Respondent was certified by Petitioner on November 3, 1978, and was issued Law Enforcement Certificate Number24368. On or about July 28, 1992, Respondent became the subject of a criminal investigation by the City of Miami Beach Police Department. The criminal investigation involved an allegation of sexual assault at the Respondent's residence. The complaining witness alleged that Respondent sexually assaulted her and that during the course of the sexual assault Respondent used an artificial penis, which was an ice mold in the shape of a penis. The Respondent was read his constitutional rights by the City of Miami Beach Police officers who were conducting the investigation. At approximately 4:40 a.m. on July 29, 1992, the investigating officers began their interview of Respondent. During this interview, Respondent was questioned about the existence of the artificial penis. Respondent indicated that he had not seen an artificial penis in his house. The interview of the Respondent was concluded at approximately 5:15 a.m. on July 29, 1992. At approximately 5:30 a.m. on July 29, 1992, Respondent telephoned his son, Patrick Alzugaray, who was asleep at the residence they shared. Following this telephone call from his father, Patrick immediately got dressed, went to the kitchen of the residence, removed from the freezer section of the refrigerator the artificial penis, went outside the residence, and threw the artificial penis down a chute into a dumpster. This was the only object thrown away by Patrick. He then returned to the residence he shared with his father and went back to sleep. Shortly thereafter, police officers from the City of Miami Beach Police Department arrived at the residence. Patrick was taken to the police station and interviewed. During this interview, he said that his father had told him "you have to find that damn thing (the artificial penis) in the freezer and throw it away because its embarrassing if they come and find that in there." After being questioned, Patrick showed them where he had disposed of the artificial penis. The artificial penis was retrieved at 6:50 a.m. on July 29, 1992. Patrick initially said that he had disposed of the artificial penis at approximately 6:00 p.m. on July 28, 1992. When he was confronted with the fact that there was still ice inside the artificial penis, he admitted that he had just disposed of it. Patrick was returned to the police department where he was interviewed on tape. During this interview, Patrick said that he threw the artificial penis away because his father had told him to do so. The artificial penis matched the description given by the complaining witness and was a material piece of evidence in the investigation. At the formal hearing, Patrick recanted his story and claimed that he was intimidated by the investigating police officers into saying that his father had told him to dispose of the artificial penis. At the formal hearing, Patrick testified that his father only told him that he was being investigated and asked if he knew anything about an artificial penis. Patrick testified that he threw the artificial penis away without being asked to do so by his father. The evidence is clear and convincing that Respondent was interviewed as a suspect in a sexual assault case, that because of that interview he knew that the artificial penis was a material piece of evidence, and that he telephoned Patrick shortly after the interview. The evidence is also clear and convincing that because of that telephone conversation with his father, Patrick attempted to dispose of this material piece of evidence. Patrick's statements to the police officers at the time of this incident are more consistent with the other facts in this proceeding and are more credible than his testimony at the formal hearing. Consequently, it is found that Patrick attempted to dispose of the artificial penis because his father told him to do so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of facts and conclusions of law contained herein and revokes Respondent's certification as a law enforcement officer. DONE AND ENTERED this 6th day of May 1996 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, 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 6th day of May 1996. COPIES FURNISHED: Karen D. Simmons, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Peter Alzugaray 3075 Northwest 28th Street Miami, Florida 33142 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues in this proceeding are whether the Petitioner has violated provisions of Florida Statutes relating to the certification of police officers as alleged in the Administrative Complaint, and, if so, what penalty should be imposed by the Commission.
Findings Of Fact The Respondent is certified with the Criminal Justice Standards and Training Commission as a law enforcement officer. He holds Certificate No. 02- 16422. From approximately March, 1976, until August, 1981, the Respondent was employed with the City of Orlando as a police officer. On or about August 11, 1981, the Respondent was on duty as a uniformed police officer during the midnight shift. He was riding in a patrol car with another officer. The two officers observed a pickup truck in a parking lot with a white male in the driver's seat and a black woman in the passenger's seat. The Respondent identified the woman as a "known prostitute." The officers drove into the parking lot to investigate. The woman jumped out of the truck. She had a gun in her possession. The two officers successfully apprehended her. In the meantime, the driver of the truck had wandered away. The other police officer left the area, looking for the man. It took the other officer approximately five minutes to apprehend the man, who was quite intoxicated. During this time, the Respondent was alone with the woman. She appeared intoxicated or drugged. She inferred that Respondent should release her, unzipped his pants, and grabbed his penis. Respondent wanted to make a case against her on this basis. He called out to his partner in an effort to get his attention to come witness the incident, but was unable to reach him. Respondent withdrew from the woman and came to the conclusion that he could not make a case against her for the incident because of the lack of an additional witness. Approximately a year before this incident, Respondent was working in uniform as an off-duty policeman at a lounge. He met the same woman involved in the later incident. After he finished his duties and changed clothes, he had a sexual encounter with her. The encounter was not an act of prostitution. On August 11, the Respondent arrested the woman for being a felon in possession of a firearm. The next morning, the woman complained that the Respondent had agreed to do something about the arrest if she performed oral sex on him. An investigator with the police department's Internal Affairs Division interviewed the woman. The investigator then interviewed the Respondent. At the initial interview, the Respondent denied ever having had a sexual liaison with the woman. Two days later, the Respondent contacted the investigator and said he remembered some additional facts. In a second interview, the Respondent admitted having had sex with the woman on the earlier occasion. He continued to deny having had sex with her on August 11, 1981. He conceded, however, that she may have touched him in the area of his genitals while pleading for him not to arrest her. Later on that same day, the Respondent again contacted the investigator and said that he had more to say. A third interview was conducted, and the Respondent admitted that the woman committed the act as set out in Paragraph 2 above. During this time, the Respondent was experiencing personal difficulties. His contradictory statements to the investigator were in part the result of anxieties about his job and his personal life. The State Attorney's Office in Orange County ultimately declined to prosecute the possession-of-a-firearm case against the woman on account of the potential embarrassment that the Respondent's testimony could have. The Respondent's employment with the police department of the City of Orlando was terminated in August, 1981. He has not been employed in the law enforcement field since that time.
Findings Of Fact Based on all the evidence, the following facts are determined: At all times relevant hereto, respondent, Glenn C. Mingledorff, was certified as a law enforcement officer by petitioner, Criminal Justice Standards and Training Commission, having been issued Certificate No. 02-25390 on June 13, 1980. When the events herein occurred, Mingledorff was employed as a uniformed highway patrolman with the Florida Highway Patrol (FHP). He resigned from the FHP effective October 26, 1984 and is no longer in the law enforcement profession. Shortly after midnight on February 5, 1983, respondent was on duty in Palm Beach County. When the following events occurred he was transporting two DWI arrestees to a local Palm Beach County jail. While driving north on I-95, he observed a vehicle with three occupants swerve into the lane in front of him. After tailing the vehicle a short distance, and noticing that it was "swerving" on occasion, Mingledorff stopped the vehicle. The driver was Nancy Lynn Pearson, a young female whose speech was slurred, and who smelled of alcohol. She was arrested for suspected driving under the influence of alcohol. Mingledorff drove her to a nearby "Batmobile" where she was given a breathalyzer test and asked to perform certain coordination tests. While these tests were being performed, Mingledorff transported the two male arrestees to a local jail. Pearson "blew" a .14 on the breathalyzer machine, which was above the .10 legal limits, and did not "adequately" perform the coordination tests. When Mingledorff returned to the Batmobile approximately an hour and a half later, he handcuffed Pearson with her hands in the front, and placed her in the back seat of his FHP car. He then drove Pearson to the Lake Worth women's facility which was approximately twenty minutes away. During the trip to the facility, Pearson began to cry, and Mingledorff attempted to comfort her by explaining what would happen after she reached the facility. He also told her she was "sweet" and "cute," that she had a "nice shape," and suggested that they might go out sometime in the future for dinner. When the two arrived at the Lake Worth facility, it was between 4 a.m. and 6 a.m. in the morning. Mingledorff parked the car approximately twenty feet from the entrance to the jail. He then let Pearson out of the car, and after she had walked a few feet, told her he had to frisk her. Although the testimony is conflicting at this point, the more credible and persuasive testimony establishes the following version of events. Mingledorff asked her to extend her handcuffed hands to the front, and then reached down to her ankles and began patting her up the front side of her legs. When he got to her crotch, he "felt around" for a few seconds. Mingledorff then went up to her breasts and squeezed them momentarily. After going to her back side, he squeezed her buttocks during the pat-down process. Pearson did not say anything while Mingledorff frisked her, nor did she say anything when she was taken into the jail. However, about a month later she saw a highway patrolman named Davis at a local speedway, who she mistook for Mingledorff, and complained to him about the frisk. Davis then told local FHP officials. Mingledorff stated that he routinely frisked all arrestees for weapons and drugs, regardless of whether they were male or female. However, through credible testimony it was shown that a "hands-on" search of a female detainee by Mingledorff was inappropriate under the circumstances and contrary to FHP policy. More specifically, it was established that a female detainee is not searched by a male trooper unless the trooper "feels there's a threat to his well-being." Here there was none. Mingledorff should have taken only her purse and any other belongings and left the responsibility of frisking the prisoner to the female attendant at the jail. On the afternoon of May 23, 1984, respondent was on duty as a highway patrolman on I-95 in Palm Beach County. He came up on a vehicle which had spun around in a near-accident and was facing on-coming traffic. The vehicle was operated by Siham Caceres, a then unmarried young female. Caceres was extremely nervous and upset from her near-accident, and was unable to drive her vehicle to the side of the road. Mingledorff directed her to sit in the right front seat of his patrol car until she was calm enough to proceed on her trip. The two sat in his car for approximately ten minutes or so. During that time, Mingledorff, who was in the driver's seat, acknowledged that he briefly reached over and touched Caceres' arm to generate her "circulation." Although he denied any other contact, it is found that Caceres' testimony is more credible and that Mingledorff then reached inside Caceres' sun dress and rubbed her breasts. He also rubbed her crotch area momentarily. Caceres did not encourage or consent to this activity. She did not receive a ticket and was allowed to leave a few minutes later. Caceres did not immediately tell anyone about the incident since she was embarrassed, and she was fearful her brothers would "get" Mingledorff if they learned what had hap- pened. She later told her fiancee, who then reported the matter to FHP officials.
Findings Of Fact Petitioner certified Respondent as a law enforcement officer and issued him certificate number 02-31445 on March 26, 1982. At all times material to this proceeding, the Virginia Gardens Police Department, Virginia Gardens, Florida, employed Respondent as a reserve or part- time police officer. During the ten years that he had been employed in that capacity, Respondent's certification had never been disciplined. Respondent also was part owner of the "Gun Doc", a gunsmith business in Dade County. On January 14, 1992, Respondent was working in his private capacity collecting weapons for repair and restoration from his customers. About 2:00 p.m., Respondent was enroute to his part-time business, traveling south on the Palmetto Expressway. He was driving his personal vehicle, a black convertible Mustang. The weather was clear, sunny, and dry. The Palmetto Expressway is a divided asphalt and concrete road which runs north and south with four (4) lanes in each direction in most places. On January 14, 1995, at approximately 2:00 p.m., Metro-Dade Police Department (MDPD) Sergeant John Petri was driving an unmarked undercover vehicle, a grey and white Chevolet Blazer, south on the Palmetto Expressway. Around the 102nd Street and the Palmetto Expressway intersection, the Respondent's vehicle approached Sergeant Petri from the rear at a high rate of speed that was substantially over the posted speed limit of 55 miles per hour. The traffic in the area was heavy at the time. Sergeant Petri braced himself for impact because he felt he would be hit by Respondent's vehicle. At the last moment, in a sudden move, Respondent's vehicle swerved around Sergeant Petri to the left. Sergeant Petri maintained visual contact with the Respondent's vehicle as it continued south on the Palmetto Expressway and through the intersection of South River Road. Respondent's vehicle was weaving in and out of traffic, cutting off cars, pulling behind others at a high rate of speed and slamming on his brakes. Respondent used the right shoulder of the road as a passing lane even though the traffic was flowing smoothly and there were no obstacles blocking the roadway. MDPD rules and regulations prohibit officers in unmarked cars from making traffic stops. Consequently, Sergeant Petri dispatched Respondent's vehicle tag number to the MDPD communication center and requested that a uniform unit or a trooper stop Respondent. Meanwhile, Respondent's vehicle came up behind Drug Enforcement Administration (DEA) Special Agent Pierre Charette at a high rate of speed. Special Agent Charette saw that Respondent's vehicle was being trailed by a Bronco/Blazer type vehicle. Special Agent Charette, driving an undercover DEA vehicle, thought he was going to be struck by the Respondent's vehicle but Respondent's vehicle suddenly swerved avoiding a collision. Next, Respondent's vehicle came over into Special Agent Charette's lane almost causing a collision with other cars. Respondent's vehicle and Sergeant Petri passed Special Agent Charette and continued southward on Palmetto Expressway. Around 74th Street, the traffic on Palmetto Expressway became more congested. At that point, Respondent's vehicle was in the right lane. A guardrail was to his right. Due to the approaching overpass, Respondent was forced to slow down. Sergeant Petri, driving in the right center lane, pulled up along the left side of the Respondent's vehicle. Both vehicles came to a rolling stop. The driver's window of Respondent's vehicle was down. Sergeant Petri put the passenger's window down on his undercover car. After showing his gold badge, Sergeant Petri identified himself as a police officer and told Respondent to slow down. Respondent made eye contact with Sergeant Petri but did not give a verbal response. Instead, Respondent made a gesture with his middle finger. Sergeant Petri did not get out of his vehicle. As Special Agent Charette drove past Respondent and Sergeant Petri, he noticed that the individual in a grey and white Chevolet Blazer was holding up what appeared to be law enforcement credentials. Believing that everything was under control, Special Agent Charette continued south on the Palmetto Expressway. When traffic in front of him began to move, Respondent began passing cars by pulling onto the right shoulder of the road. At one point, the rear end of Respondent's vehicle began to fishtail when he was on the grassy dirt area of the road's shoulder. Special Agent Charette noticed Respondent's vehicle approaching from the rear again. Respondent almost caused a collision with other cars when he cut in front of Special Agent Charette's vehicle. Between the 74th Street and 58th Street intersection, Special Agent Charette turned on his lights and siren and began to pursue Respondent. Respondent zigzagged in and out of traffic with Special Agent Charette following about two (2) car lengths behind. In response to Special Agent Charette's lights and siren, other cars moved out of the way. Respondent exited the Palmetto Expressway at the 58th Street intersection. He was aware that Special Agent Charette was behind him. Sergeant Petri lost visual contact with Respondent as he made the exit. Respondent headed west on 58th Street which is an asphalt and concrete roadway with a total of five (5) lanes; the center lane is a middle turning lane. Special Agent Charette followed Respondent at speeds of 50 to 80 miles per hour. Special Agent Charette and Sergeant Petri routinely use the 58th Street exit when traveling to their respective offices. Respondent zigzagged around traffic and ran a red traffic light at the intersection of 58th Street and 79th Avenue almost causing another accident. Special Agent Charette hesitated at that intersection to avoid colliding with other automobiles then followed Respondent at speeds of 45 to 50 miles per hour. Respondent turned south on 82nd Avenue and went into a warehouse area. He parked in the first space in front of his business, The Gun Doc. Special Agent Charette followed and blocked the entrance to The Gun Doc with his light and siren still activated. Respondent got out of his vehicle, looked at Special Agent Charette and started to go inside The Gun Doc. Special Agent Charette displayed his credentials and badge and identified himself verbally as a federal narcotics law enforcement agent. Special Agent Charette advised Respondent that Metro police were on the way. Respondent responded derogatorily and went into The Gun Doc. Special Agent Charette notified DEA dispatch of his exact location and need for backup from Metro police. He also requested a tag check on Respondent's vehicle. Meanwhile, DEA Special Agents Lewis Perry and John Fernandez were monitoring their DEA radio in close proximity to The Gun Doc. They asked Special Agent Charette whether he needed assistance and went to the scene in an unmarked government vehicle. When they arrived at the scene, the blue light on Special Agent Charette's dashboard was still on. After their arrival, Respondent came out of The Gun Doc and asked who they were. Special Agents Perry and Fernandez identified themselves as federal agents with DEA and at least one of them showed his credentials. Respondent again responded derogatorily and went back into his business. At approximately 2:00 p.m. on January 14, 1992, United States Marshal Lorenzo Menendez was traveling in his unmarked vehicle on the 836 Expressway heading toward the Palmetto area. He was returning to the High Intensity Drug Trafficking Area (HIDTA) office in the Koger Executive Center. Marshal Menendez had two (2) radios in his vehicle and was scanning the DEA and MDPD radio frequencies. He heard Sergeant Petri requesting help. Later the Marshal heard that the subject vehicle had exited Palmetto Expressway at 58th Street. He also heard Special Agent Charette asking for help and learned the address of The Gun Doc as the address of the vehicle's owner. Marshal Menendez responded to the calls for help. When he arrived at The Gun Doc, Special Agents Charette, Perry and Fernandez were already there waiting outside next to their cars. When Respondent came out of his shop and approached his vehicle, Marshal Menendez walked up to Respondent's vehicle. With his silver star badge hanging around his neck and his photo identification in his hand, Marshal Menendez verbally identified himself as a U.S. Marshal. Respondent told Marshal Menendez that he too was a police officer but refused to show his credentials. About the time that Marshal Menendez and Respondent began to converse, Sergeant Petri arrived at the scene. The MDPD dispatcher had given him the address of The Gun Doc as the address of the owner of the black convertible Mustang. Respondent objected when Marshal Menendez looked in Respondent's car. Without any threat or provocation, Respondent shoved Marshal Menendez by placing both hands on the Marshal's chest causing him to fall backwards. Marshal Menendez then advised Respondent that he was under arrest and attempted to handcuff him. Respondent reacted by refusing to obey the Marshal's commands and trying to break free. Special Agents Charette, Perry, and Fernandez assisted Marshal Menendez in subduing and handcuffing Respondent who resisted by kicking, jerking, and thrashing about. When the struggle was over, Respondent was handcuffed face down on the ground. Respondent again informed the officers that he was a policeman. One of the officers took Respondent's badge and identification from his rear pocket. Respondent's Chief of Police arrived at the scene and asked that Respondent be allowed to get up. At that time, Respondent was not bleeding. However, his face and neck was bruised in the struggle to subdue him. The federal agents intended to charge Respondent with assault on federal officers. However, an assistant United States Attorney deferred to state charges of reckless driving and battery. upon a police officer. Respondent testified that when he first encountered Sergeant Petri and Special Agent Charette on the Palmetto Expressway, they were traveling in a convoy with a third vehicle and driving recklessly. He claims he did not know they were law enforcement officers. Respondent asserts that he had to drive defensively to escape them because he feared they were attempting to hijack the weapons in his possession. Respondent's testimony in this regard is less persuasive than evidence indicating that Respondent was driving recklessly before he encountered Sergeant Petri and Special Agent Charette. After Sergeant Petri identified himself as a policeman and Special Agent Charette turned on his siren and blue light, Respondent endangered the lives of others in an attempt to avoid being stopped. Upon arrival at his place of business, Respondent called 911 seeking assistance from a uniform unit. He also called his Chief of Police to ask for advice. Respondent's brother, David Pruitt, was in the shop when these calls were made. After making these calls, Respondent testified that he was attempting to keep Marshal Menendez from entering his vehicle when Marshal Menendez suddenly lunged and grabbed Respondent by the throat. The criminal trial testimony of Respondent's brother and of another criminal trial witness, Maribel Aguirre, tend to corroborate Respondent's version of the facts leading up to the altercation with Marshal Menendez. However, the undersigned finds the testimony of Respondent, his brother and Ms. Aguirre less persuasive in this regard than the testimony of Marshal Menendez, Sergeant Petri, and Special Agents Perry and Fernandez, supported by the criminal trial testimony of Special Agent Charette. Clear and convincing record evidence indicates that Respondent was guilty of reckless driving and battery.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, recommended that Petitioner enter a Final Order suspending Respondent's certification and the privilege of employment as a law enforcement officer for a period of two (2) years. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of April 1994. SUZANNE F. HOOD, Hearing Officer 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 26th day of April 1995. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Petitioner's Proposed Findings of Fact 1.- 3 Accepted in paragraphs 1-2. 4 - 6 Accepted in paragraphs 3-4. 7 - 16 Accepted in substance in paragraphs 5-8. 17 - 22 Accepted in substance in paragraphs 9-12. 23 - 32 Accepted in substance in paragraphs 14-17. 33 - 39 Accepted in substance in paragraphs 19-22. 40 - 48 Accepted in paragraphs 23-27. 49 - 61 Accepted in substance in paragraphs 28-32. 62 - 75 Accepted in substance in paragraphs 33-37. 76 - 87 Accepted in substance in paragraphs 38-40. 88 - 93 Accepted in substance in paragraphs 41-46. Respondent's Proposed Findings of Fact 1 - 4 Accepted as if incorporated in paragraphs 1-2. Accepted in part in paragraph 3. Reject last sentence as not supported by persuasive evidence. - 9 Rejected. No competent substantial persuasive evidence. Accept in part in paragraphs 26-27 but siren engaged before arrival at gun shop. - 12 Accept that Respondent made telephone calls in paragraph 44 but reject his reasons for doing so as not supported by competent substantial persuasive evidence. 13 - 15 Accepted in substance as modified in paragraphs 31-36. First and last sentence rejected as not supported by competent substantial persuasive evidence. The rest is accepted in substance as modified in paragraph 36. Rejected as not supported by competent substantial persuasive evidence. Accepted as modified in paragraph 39; the other officers did not "join the attack." Rejected as not supported by competent substantial persuasive evidence. Accepted in paragraphs 39-40. Rejected as not supported by competent substantial persuasive evidence. See paragraph 42 re: criminal charges. Balance rejected as not supported by competent substantial persuasive evidence. Accept that Ms. Aguirre's criminal trial testimony tends to support Respondent but reject this testimony as less persuasive than the contrary testimony of the law enforcement officers. COPIES FURNISHED: Karen D. Simmons Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. P. Walter, Jr., Esquire 235 Catalonia Avenue Coral Gables, Florida 33134 A. Leon Lowry, II, Director Div of Crim. Just. Stds. & Trng. P. O. Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel P. O. Box 1489 Tallahahssee, Florida 32302
The Issue Whether Petitioner properly issued the Stop-Work Order (“SWO”) for Respondent’s failure to comply with Petitioner’s Request for Production of Business Records (“Request to Produce”).
Findings Of Fact The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation law that requires employers to secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. Respondent is a Florida limited liability company, organized on September 18, 2014, engaged in business in Florida. Mary Atwood is the listed manager and owner of Boss Lady Co. The nature of Respondent’s business was a disputed issue at the final hearing. Mrs. Atwood testified that she obtained a license to engage in construction as a minority female business owner. The record contains a handwritten list of jobs provided by Mrs. Atwood to represent the work performed by Respondent, which included color sealer (application), partial color sealer (removal), privacy fence repair, and privacy fence (installation). On May 18, 2017, Mr. Byrnes observed a truck parked in front of a property with a magnetic sign indicating, Boss Lady Concreate Company. The sign indicated the company worked on patios, driveways, foundation, flat work, and privacy fences. He then stopped at the property to perform a random check. During the random check, Mr. Byrnes encountered two men when he approached the property. The first man, Joshua Brown, was operating a pressure washer. Mr. Byrnes told Mr. Brown his name and the purpose of his visit. Mr. Brown told Mr. Byrnes that his boss, Mary, was in the back of the house. Mr. Brown stated that it was his first day working for Mrs. Atwood and that he was expecting to receive beer money for the day. The second man, Kenneth Archibald, stated that he works for Mrs. Atwood off and on and had done so for some time. He stated he was generally paid eight or nine dollars per hour and that he expected to be paid his general wage for that day’s work. Mrs. Atwood denied that Mr. Archibald and Mr. Brown were her employees and stated that they were just helping her out for the day. However, Mrs. Atwood transported the two men to the property for the purpose of pressure washing the driveway. While Mrs. Atwood continued to deny that she intended to pay the gentleman for the work performed, she testified that the men wanted beer money and she was “going to give them a couple of dollars for beer.” No one was paid for anything that day. Neither of the two men alleged to have been working for Mrs. Atwood testified at the hearing. Mrs. Atwood’s testimony is the only direct evidence presented at hearing of the payment arrangement for the two men at the property location. Mr. Byrnes checked the Department's Coverage and Compliance Automated System ("CCAS") database to determine whether Mrs. Atwood had secured the payment of workers' compensation insurance coverage or had obtained an exemption from the requirements of chapter 440. CCAS is a database that Department investigators routinely consult during their investigations to check for compliance, exemptions, and other workers' compensation related items. CCAS revealed that Mrs. Atwood had an exemption for herself for construction, effective October 5, 2016. There was no evidence that Respondent had workers’ compensation coverage for any employees. Based on his jobsite interviews with the alleged employees and Mrs. Atwood, and his CCAS computer search, Mr. Byrnes concluded that Mrs. Atwood had two employees working in the construction industry and that she had failed to obtain workers’ compensation coverage for those employees in violation of chapter 440. As a result, Mr. Byrnes issued a SWO that he personally served on Mrs. Atwood on May 18, 2017. Also on May 18, 2017, Mr. Byrnes served Mrs. Atwood with a Request for Production, asking for payroll records, accounting records, disbursements, contracts for work, subcontractors’ documents, and documentation of subcontractors’ workers’ compensation coverage for the period from February 13, 2017, through May 18, 2017. The request for payroll records included income tax documents. Mrs. Atwood provided Mr. Byrnes with a list of jobs performed, including the amount paid for work performed, in response to the Request for Production. Mrs. Atwood testified that she produced the only records she had in her possession because she did not have payroll records, bank records, or billing records. Mrs. Atwood also testified that Boss Lady Co. filed taxes, yet it did not provide tax records because Mr. Byrnes allegedly did not request the records. The undersigned is not persuaded by Mrs. Atwood’s testimony regarding failure to produce the income tax records. The evidence supports a finding that Boss Lady Co. had tax records for the covered time period which were not produced to the Department. The evidence produced at hearing clearly and convincingly demonstrated that Mrs. Atwood was covered by an exemption (related to the construction industry) from workers’ compensation insurance exemption. There is direct evidence that Mr. Byrnes saw Mr. Brown operating the pressure washer, and that, at the very least, Mrs. Atwood intended to pay him a couple of dollars for beer. Thus, the undersigned finds that Mr. Brown was working for Respondent on May 18, 2017. However, there was no direct evidence that Mr. Archibald was observed performing any work. The only evidence as to whether Mr. Archibald worked for Respondent or how he was paid was hearsay statements of Mr. Archibald as restated by Mr. Byrnes. Mr. Archibald was not available at hearing to corroborate Mr. Byrnes testimony. Mrs. Atwood testified that Mr. Archibald was merely plugging in the pressure washer. The Department did not demonstrate by clear and convincing evidence that Mr. Archibald was performing work for Respondent on May 18, 2017. Mr. Byrnes testified that the work he observed on May 18, 2017 (pressure washing) was non-construction work. Although the work performed on that day may not be classified as non-construction work, the evidence demonstrates that Boss Lady Co. is an employer with one or more employees engaged in the construction industry. Thus, Boss Lady Co. was required to maintain workers’ compensation coverage for its employees. The Department has demonstrated that issuance of the SWO was proper, pursuant to chapter 440. The Department has demonstrated by clear and convincing evidence that Respondent was in violation of chapter 440 by failing to produce tax records in response to the Request to Produce.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department entered a final order finding: the Department properly issued the Stop-Work Order against Boss Lady Concreate Co., LLC; and Boss Lady Concreate Co., LLC, failed to comply with the SWO by failing to provide tax records as requested by the Department’s Request to Produce. DONE AND ENTERED this 16th day of November, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 16th day of November, 2017.
The Issue The issue presented in this case is whether there is just cause for the City of Cape Coral's decision to terminate the employment of Hector Calderon, a police officer with the City of Cape Coral Police Department.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: The City of Cape Coral (the "City") employed Hector Calderon as a police officer in the operations division of the Cape Coral Police Department (the "Department") from January 11, 1997 through January 11, 2002, the effective date of his termination. Officer Calderon was employed as a patrol officer, and his main duties were traffic enforcement during the 6 p.m. to 6 a.m. shift. On October 29, 2001, Sgt. Keith Perrin of the Department received a telephone complaint concerning Officer Calderon from a woman named Cheryl Sugar. Ms. Sugar told Sgt. Perrin that Officer Calderon had lived with her over the past several months. She offered information about narcotics usage and deviant sexual behavior by Officer Calderon, both on and off duty. She specifically alleged that Officer Calderon had been taking cocaine. Ms. Sugar also told Sgt. Perrin that Officer Calderon had been seeing a woman named Nicole Beougher, whom he had met working at a Circle K store when he stopped there during his work shift. Ms. Sugar alleged that Officer Calderon had been taking Ms. Beougher on "ride-alongs" in his police car. Ms. Sugar was angry at Officer Calderon because she had only recently discovered that he had also been dating Ms. Beougher. She and Ms. Beougher had spoken to each other, and realized that Officer Calderon had been deceiving both of them. Sgt. Perrin made a report to Lt. Michael Maher, the Department's head of internal affairs. Lt. Maher contacted Ms. Sugar by telephone on the morning of October 30, 2001. Ms. Sugar reiterated her allegations and agreed to come in later that afternoon to give a sworn statement and submit to a polygraph examination. However, she telephoned Lt. Maher at 3 p.m. and stated that she had placed herself in an "awkward position" and could not give a statement after all. From that point forward, Ms. Sugar declined to cooperate with the Department, despite frequent attempts by Lt. Maher to secure her testimony. On or about November 3, 2001, officers from the Department responded to a domestic dispute call involving Officer Calderon and Ms. Sugar. The officers on the scene noted that Officer Calderon acted unusually. He was upset, shaken, and verbally abusive. He refused to leave the scene until Lt. Maher gave him a direct order to leave or go to jail. This incident, coupled with Ms. Sugar's earlier complaint, led Lt. Maher to place Officer Calderon on administrative leave and send him for a "fitness for duty" psychological evaluation. The evaluation was conducted by a psychologist on November 8, 2001. The psychologist concluded that Officer Calderon was not capable of returning to duty. Officer Calderon was placed on administrative desk duty and his patrol vehicle was taken from him. Officer Calderon's patrol vehicle was assigned to another officer, Robert Slager. Following routine procedure, Officer Slager inventoried the vehicle to assure that Officer Calderon's personal property was accounted for and returned to him. While conducting the inventory, Officer Slager discovered sixteen driver's licenses in the vehicle. The licenses were in a cup holder, in plain sight. Upon investigation, Lt. Maher determined that the driver's licenses had been confiscated by Officer Calderon during traffic stops over a four-year period. Department procedure called for confiscated licenses to be turned in to the records division along with the citation, but Officer Calderon simply kept them in his vehicle. Lt. Maher questioned Officer Calderon as to why he kept the licenses. Officer Calderon's only explanation was that they were his "personal collection." Several officers testified that they had heard of the practice of keeping confiscated driver’s licenses as trophies, but all denied that they did it themselves. They could not or would not name any other officer who indulged in the practice. Officer Calderon kept the licenses in plain sight, and his vehicle was inspected by his superiors on a regular basis, yet no disciplinary action was taken against him concerning the confiscated licenses until this investigation developed. Despite Ms. Sugar's failure to cooperate, Lt. Maher continued investigating her allegations. Ms. Sugar had provided the name of Nicole Beougher, and Lt. Maher contacted Ms. Beougher, who provided a sworn statement and testified at the hearing. In October or November 2000, Ms. Beougher was working nights in a Circle K store in Officer Calderon’s patrol zone. She was 18 years old. Officer Calderon came in, and they began talking. He started coming in frequently to talk to her. He gave her his business card, adding a handwritten note with the code for his voice mailbox at work. During their conversations, Ms. Beougher mentioned that she had never ridden in a police car, and Officer Calderon offered to take her on a "ride-along." At the time, the Department had a "ride-along" program as part of its community outreach. The program encouraged citizens to ride with patrol officers as they conducted their daily course of duties. Interested persons were required to fill out a release of liability form and permit the Department to run a criminal background check. By Department policy, each citizen was limited to one ride-along every six months. Ms. Beougher completed the form and went on a ride- along with Officer Calderon on Christmas Eve 2000. He picked her up at her mother’s house at 6 p.m. and drove to the police station for roll call. Then Officer Calderon and Ms. Beougher went out on the road on his patrol duties. They discussed personal matters, such as whether Ms. Beougher had a boyfriend. At around midnight, they drove to a secluded area on the north end of Cape Coral. Officer Calderon stopped the car. They both got out and walked to the rear of the car. Officer Calderon began kissing Ms. Beougher. Nothing further of a sexual nature occurred. Officer Calderon dropped Ms. Beougher off at her mother's house at approximately 5:30 a.m. on Christmas Day. In January 2001, Officer Calderon and Ms. Beougher began seeing each other regularly. On May 6, 2001, Officer Calderon moved in with Ms. Beougher. While they lived together, Officer Calderon, on duty, would stop by their apartment five or six times per shift, sometimes for as long as 45 minutes. On one or two of these occasions, they engaged in oral sex. While they lived together, Ms. Beougher rode along with Officer Calderon on his work shift on 15 to 20 different occasions. Ms. Beouger never filled out another release of liability form, and the number of ride-alongs was clearly in violation the Department's policy. However, the evidence at hearing established that the Department's enforcement of its policy was lax. Officer Calderon's shift sergeant saw Ms. Beougher with him on more than one occasion and made no inquiry. On one or two of these unauthorized ride-alongs, they drove to a secluded area of northern Cape Coral, and Ms. Beougher performed oral sex on Officer Calderon. One evening while they were living together, Officer Calderon brought home a small amount of cocaine and offered to use it with Ms. Beougher. She was afraid to use it, fearing that Officer Calderon was trying to set her up for an arrest. Ms. Beougher said she would use it if he did first. Officer Calderon snorted the cocaine through a rolled dollar bill. Ms. Beougher then joined him. From that point forward, Officer Calderon and Ms. Beougher used cocaine frequently on weekends when Officer Calderon was not working. Officer Calderon and Ms. Beougher frequently spent weekends at a Motel 6 in North Fort Myers. They did this to get away from their roommate and to be closer to the clubs downtown. They would drink heavily at the clubs, to the point where Ms. Beougher could not remember much of what occurred. They would bring other people, male and female, back to the motel and have sex with them. They also used cocaine while at the motel. Officer Calderon sometimes worked details at a bar called the Hired Hand Saloon, a place he also frequented when off duty. A prior acquaintance named Roger Montgomery worked there as a bouncer. Ms. Beougher testified that Mr. Montgomery was the source of Officer Calderon's cocaine. At the hearing, Mr. Montgomery confirmed the details of Ms. Beougher's testimony. At the Hired Hand, Mr. Montgomery would give Officer Calderon "bumps" of cocaine, i.e., small amounts sufficient for him and Ms. Beougher to get high. On at least two occasions, Mr. Montgomery sold $50 worth of cocaine to Officer Calderon. Mr. Montgomery never gave or sold cocaine to Officer Calderon while he was on duty. Mr. Montgomery never saw Officer Calderon appear to be under the influence of alcohol or any other drug while he was on duty. Mr. Montgomery never actually witnessed Officer Calderon taking cocaine, though he was certain that he saw him high on cocaine. Ms. Beougher testified that she and Officer Calderon used cocaine while at the Hired Hand. On one occasion when Officer Calderon was off duty at the Hired Hand, he asked Mr. Montgomery for cocaine. Mr. Montgomery did not have the cocaine on his person, but did have some in the ashtray of his truck. He gave Officer Calderon the keys to his truck, and Officer Calderon went out to the truck. When Mr. Montgomery later went out to his truck, the cocaine was gone. Officer Calderon invited Mr. Montgomery to the Motel 6 to use cocaine and have sex with Ms. Beougher and him. Mr. Montgomery wanted to go, but couldn't. Mr. Montgomery testified that Ms. Beougher, under the influence of alcohol and cocaine, performed oral sex on both him and Officer Calderon at the Hired Hand. Ms. Beougher could not recall this incident, but did not deny that it might have happened while she was under the influence. One evening at the Hired Hand, Officer Calderon gave Mr. Montgomery a bag of marijuana. Officer Calderon told him that he had confiscated the marijuana from a group of teenagers while on duty. Officer Calderon had earlier shown the marijuana to Ms. Beougher and told her the same story. On one occasion, Officer Calderon asked Mr. Montgomery to get him the drug Ecstasy. Mr. Montgomery made the attempt but was unable to get it because his seller's supplier had been arrested. Officer Calderon and Ms. Beougher took the drug Oxycontin on several occasions. Officer Calderon procured the drug from a person unknown to Ms. Beougher. Officer Calderon had no car other than his patrol vehicle, which he was authorized to take home. Ms. Beougher testified that while off duty, Officer Calderon drove the patrol vehicle under the influence of alcohol on several occasions. He also allowed Ms. Beougher to drive the police vehicle. Sometime in August 2001, Officer Calderon moved out of Ms. Beougher's apartment. He told Ms. Beougher he was moving because there had been a drug bust in the apartment next door, and he was concerned that the Department would somehow associate him with it. Officer Calderon's move also coincided with his learning that Ms. Beougher was pregnant with twins. Ms. Beougher was certain that Officer Calderon was the father. Officer Calderon did not deny it, but wanted to make certain prior to undertaking support obligations. The results of a DNA test were pending at the time of the hearing. Ms. Beougher testified that her drug use ceased when she learned she was pregnant, and that she never saw Officer Calderon take illegal drugs after she stopped taking them. During the investigation, Lt. Maher discovered that Officer Calderon failed to notify the Department of several address changes, in violation of General Order D-1, Section III.18. Officer Calderon admitted to the sexual allegations that occurred at the Hired Hand and the Motel 6. He denied having sex with Ms. Beougher in his patrol car, and denied that he had ever used any illegal drugs. Officer Calderon alleged that Ms. Sugar and Ms. Beougher were bitter about his seeing them both at the same time, and thus concocted a false tale of his drug usage. He contended that Mr. Montgomery, a known drug dealer, had been intimidated through fear of arrest into testifying, and that Mr. Montgomery was sexually involved with Ms. Beougher and thus part of the conspiracy. Officer Calderon's contentions about the opposing witnesses cannot be credited. Neither Ms. Beougher nor Mr. Montgomery knew the other's last name, and both credibly testified that their only involvement with each other was through Officer Calderon at the Hired Hand. Ms. Beougher admitted to being angry at Officer Calderon, but credibly denied that she invented her story of drug usage. Adding to her credibility was that she freely implicated herself in the illegal activities that occurred, rather than portraying herself as an innocent bystander. Mr. Montgomery admitted that his motive for testifying was fear of prosecution for his drug dealings. He was reluctant to testify against Officer Calderon. He did not want to get Officer Calderon in trouble. His testimony was credible and corroborated that of Ms. Beougher as to the particulars of occurrences at the Hired Hand. Officer Calderon had a prior disciplinary history, which Chief Gibbs testified played a role in his decision to terminate Officer Calderon. In 1999, Officer Calderon was given a eight-hour suspension without pay for failing to report the discharge of his service revolver. He and his live-in girlfriend at the time, Allison Gimello, were involved in a domestic disturbance. When the police arrived, they discovered bullet holes in a closet door. Ms. Gimello told police that Officer Calderon had fired his police weapon after threatening to kill her. She later changed her story, saying that she had accidentally fired the gun. Because of this ambiguity, Officer Calderon was disciplined only for not reporting the discharge of his weapon. He did not file a grievance or appeal his suspension. Also in 1999, Officer Calderon was disciplined for showing a photograph of himself, naked with an erection, to female employees of the Department. Without grievance or appeal, Officer Calderon received a 24-hour suspension without pay. Upon completion of the internal affairs investigation in the instant case, Officer Calderon was charged with the following: failure to notify the Department of an address change; loafing while on duty; use of a controlled substance while off duty; purchase and possession of a controlled substance while on and off duty; intentional violation of state law; conduct unbecoming a public employee; using the prestige of his official position or the Department's time, facilities, equipment or supplies for private gain; improper performance of his duties; engaging in sex while on duty and in a City of Cape Coral police vehicle; malfeasance or misfeasance in office; perpetration of an act or conduct which causes substantial doubt concerning an officer's honesty, fairness, or respect for the rights of others or for the laws of the state, irrespective of whether such act or conduct constitutes a crime; and violation of the rules of conduct of the Criminal Justice Standards and Training Commission ("CJSTC") by failing to maintain good moral character and having a pattern of conduct not consistent with state standards. Lt. Maher's internal affairs report, dated December 5, 2001, sustained all of the charges except loafing on duty and use of a controlled substance. Lt. Maher dropped the loafing charge after consulting with Officer Calderon's immediate superiors, who did not see a problem with his frequent visits to the Circle K store or to the apartment he later shared with Ms. Beougher, provided his productivity was unaffected. It was conceded at the hearing that Officer Calderon was one of the most productive officers in the Department throughout his employment. Lt. Maher dropped the drug usage charge because the only drug test given to Officer Calderon came back negative. At the outset of the investigation, Lt. Maher wanted to test Officer Calderon for drugs but was advised by the City attorney that he lacked reasonable suspicion to order a test. By the time his investigation built reasonable suspicion, Officer Calderon had been placed on administrative duty and was aware that the Department was looking into his activities. Nonetheless, Lt. Maher believed that, without a positive drug test, he could not sustain a charge of drug usage. At the hearing, Officer Calderon challenged the alleged inconsistency between the Department's finding there was insufficient evidence to support that he used drugs, but finding the same evidence sufficient to support that he bought and/or possessed drugs. This argument is rejected. The evidence at hearing established that Officer Calderon both possessed and used drugs. Lt. Maher's decision to drop one of the potential charges does not change the fact that the other charge was proven. Lt. Maher's report was forwarded to Officer Calderon's immediate superiors for a recommendation on corrective action. One of the superiors, Lt. Craig Durham, recommended termination. Officer Calderon's immediate superior, Sgt. John Dickman, recommended a 30-day suspension without pay or benefits. These recommendations then went to the division commander, Major B. A. Murphy, who recommended termination and forwarded the file to Chief Gibbs for his review on December 12, 2001. Officer Calderon elected to have the recommended discipline reviewed by a Department Disciplinary Review Board ("DDRB"). The DDRB was composed of five Department employees: two selected by Officer Calderon, two selected by the Department's administrators, and a fifth member selected by the other four. Lt. Maher presented the case for the Department. Officer Calderon presented his case in rebuttal. The DDRB then deliberated and rendered a decision. On December 19, 2001, the DDRB unanimously recommended termination. On December 21, 2001, Chief Gibbs entered a Final Notice of Disciplinary Action terminating Officer Calderon's employment. Officer Calderon sought and received an appeal of this decision with the City Manager. On January 10, 2002, Interim City Manager Howard Kunik upheld the decision to terminate Officer Calderon's employment.
The Issue The issue is whether the alcoholic beverage license #23-03711 SRX, Series #4-COP issued to Respondent should be revoked, suspended, or otherwise disciplined because the licensee permitted patrons to commit criminal offenses on the licensed premises, including possession, delivery and distribution of controlled substances such as cocaine; because a nuisance is maintained on the licensed premises; or because the premises are a notorious gathering place for those predisposed to deal and deliver controlled substances in violation of Florida law.
Findings Of Fact All Purchase Corp. owns the restaurant and bar known as Flame Steak, located at 216 Lincoln Road, Miami Beach, Florida. The establishment holds a Series #4-COP license, #23- 03711 SRX, for the sale of beer, wine and liquor on the premises. The owner of the licensed premises is Mr. Gilberto Rivas. The licensed location consists of a 35 foot glass store front on Lincoln Road. As one enters the restaurant, immediately to the left there are tables, and farther to the left is the kitchen, which contains an open flame grill (hence the name of the establishment). Going deeper into the restaurant, at the end of the kitchen area is a bar with stools. There are more tables in the center of the room, and to the right is a dance floor. At the right rear of the dance floor is a D.J. booth. At the rear left of the establishment is a staircase leading to an upstairs hall, where the men's and women's bathrooms are located. The establishment uses the services of a security guard firm, Columbo Investigations. One guard ordinarily remains at the entrance to check IDs of patrons, and to pat patrons down, to be sure they are not carrying weapons into the establishment. In the year before the emergency suspension, the Miami Beach Police Department responded to 28 calls of incidents at the licensed premises, but none of these calls were for narcotic violations. Another guard is ordinarily stationed in the hall upstairs just in front of the bathrooms. A third guard occasionally roams the establishment. Both the security guards and the bartender are under instructions from Mr. Rivas to immediately remove any patron who breaks the law, especially one who is disorderly, drunken, or otherwise causing a problem. Although the security guard and bartender also testified that Mr. Rivas had instructed them to remove anyone engaging in any illegal activity such as the sale of cocaine, the Hearing Officer is persuaded that the focus of their activities is to remove drunken or disorderly patrons. There is no evidence of any specific program for observing patrons to watch for illegal narcotics transactions. Indeed, the evidence shows a rather casual attitude on the part of security guards to the presence of narcotics, for at one time during the investigation, one of the security guards was smoking marijuana in the men's room. (See, Finding 11, infra.). On another occasion, a DABT officer openly passed a one inch by one inch baggie of cocaine to another officer on the stairs going up to the men's room, which only elicited a wink from the security guard. (See, Finding 16, infra.). Over time, three confidential informants for the City of Miami Beach Police Department told the police that illegal drug transactions were taking place at Flame Steak. Based on these reports, the Department began an undercover investigation, which included agents from the Division of Alcoholic Beverages and Tobacco of the State. The evidence of the reputation of Flame Steak as a location where drugs can be purchased was rather general, but it did serve to explain a legitimate reason for the Police Department and the DABT to have undertaken their investigation. The police did not go to Mr. Rivas with their information before the investigation began. The investigation began on February 18, 1990, and continued through the arrests made at Flame Steak and the suspension of the alcoholic beverage license on Friday, April 6, 1990. Events of February 18, 1990. Miami Beach Police Detective Elicio Zacarias went to Flame Steak with a confidential informant at approximately 12:30 a.m. on February 18, 1990, in an undercover capacity. He spent several hours there, and the confidential informant introduced him to a man, "Eric" and a woman. After meeting Eric, Detective Zacarias asked Eric "how much he could get for $40" as he was standing at the bar. Eric told him to move to a table about 10 feet from the bar. Shortly thereafter Eric returned, and put a one inch by one inch clear plastic baggie of cocaine on the table top next to Detective Zacarias' hand. Detective Zacarias then gave him $40 cash in plain view; Detective Zacarias flicked the baggie to get residue from the top of the baggie down into its bottom in an open manner. Detective Zacarias then made three or four trips to the men's room in order to appear to be snorting the cocaine. He did not pretend to use the drug in the view of anyone in the public areas of the bar; he merely went to the men's room. That same night, Eric introduced Detective Zacarias to the owner of Flame Steak, Mr. Gilberto Rivas. Mr. Rivas is at the location every night. Eric obviously knew Mr. Rivas, and appeared to be familiar with the other people who worked at the bar. Nothing Eric said to Detective Zacarias implied that Mr. Rivas used cocaine, or had ever seen cocaine being passed in the bar, however. Before the bar closed, Detective Zacarias approached Eric for a second time and asked if he could get some more "to go". Eric replied "sure," and went to the front of the establishment to meet with some other person who Detective Zacarias could not see. Eric returned and gave him a similar baggie in a hand- to-hand exchange over the bar during which Detective Zacarias gave Eric $25. Detective Zacarias then left -the bar at about 4:00 a.m. with the two baggies of cocaine. Events of the night of February 24 and 25, 1990. Detective Zacarias returned to the Flame Steak with DABT Investigator Weiner and the confidential informant at approximately 11:00 p.m. on February 24, 1990, in an undercover capacity. The confidential informant introduced Detective Zacarias to a white latin male at the bar, near the staircase to the restrooms. The confidential informant asked that man if he could get something for later, to which the unidentified man replied "I'll take care of you," and told Detective Zacarias and the confidential informant to go up to the men's room. That unidentified man then came to the men's room and in the open part of the men's room sold a similar small baggie of cocaine for $45. Detective Zacarias and the confidential informant then returned to the bar and sat with Agent Weiner. From time to time they would go up to the men's room to appear to be using the cocaine. At about 1:45 a.m. on the morning of February 25, 1990, they made another buy from the same individual. This time the baggie of cocaine was transferred hand-to-hand but below the bar level. Detective Zacarias paid $45 for the cocaine. He left at about 3:00 a.m. Events of March 3, 1990. Detective Zacarias again went to Flame Steak with another undercovered detective, John Quiros on Saturday March 3, 1990. They met the same unidentified white latin male who had sold Detective Zacarias cocaine on two occasions on the night of February 24 and 25, 1990. Detective Zacarias asked him if there was anything available, and was told to go to the men's room. The unidentified latin male removed a baggie from his wallet, which he sold to Detective Zacarias for $30. Detective Zacarias was at the restaurant for approximately 2-3 hours on that occasion. Events of March 16, 1990. Detective Zacarias again went to Flame Steak on Friday, March 16, 1990, at about 10:30 p.m. with Detective Quiros and DABT Investigator Weiner and a female detective for the Miami Beach Police Department, Kelli Reid. The were also in the company of the confidential informant. After they were there almost two hours, Detective Zacarias was introduced to a black female, and he asked her in Spanish if there was "anything available." She replied "for $40 I can get you enough," and Detective Zacarias gave her $40. She went over to a latin male at the bar who took a small baggie, similar to the other baggies in which cocaine had been packaged on prior occasions, from his right rear pocket and gave it to her; she in turn gave it to Detective Zacarias over the table. At about 1:45 a.m. Detective Zacarias asked the same female if she could get more at a lesser price. She then introduced Detective Zacarias to a different white latin male who came to their table from the bar. She told him in Spanish "bring me back for 30" and about 20 minutes later he gave her a baggie which she gave to Detective Zacarias hand- to-hand at waist level containing cocaine. That same morning at about 3:30 a.m. Detective Zacarias asked the black female if he could buy some "to take home." She took Detective Zacarias to the second man again; he took the cocaine from his shirt pocket, and gave it to her for $35. Detective Zacarias held the cocaine in his right hand, examined it, put it in his pocket while he was at a table about five feet from the bar area. That same morning, Detective Zacarias saw a man whom he knew as "Freddie" snorting cocaine in the men's room as Detective Zacarias entered. At about 4:30 a.m. on March 17, 1990, DABT Investigator Weiner was introduced by the confidential informant to a white latin female, "Atricia." Agent Weiner asked Atricia if she could get cocaine, and she left the area where Weiner had been sitting to approach an unidentified latin male. She returned with a message that she could obtain cocaine for $30. Weiner gave her the $30. She left, and when she returned handed Weiner a clear plastic baggie of cocaine. Events of March 24, 1990. Detective Zacarias returned to Flame Steak with Miami Beach Police Detective Reid and DABT Investigator Weiner early in the morning of March 24, 1990, with the confidential informant. After being in the lounge for 45 minutes to an hour, the black female from March 17, 1990, invited Detective Zacarias to sit at her table in the center of the lounge area, near the dance floor. She was with three other women. Detective Zacarias asked her in Spanish if she could find something, she asked "how much?" Detective Zacarias gave her $40. The black female went to a male at the other end of the dance floor and when she returned she gave Detective Zacarias openly in a hand-to-hand fashion a baggie of cocaine over the table. Later they were joined by Eric. Eric had seen the black female purchase the cocaine she recently had given to Detective Zacarias, and asked for a "hit" of the cocaine. Detective Zacarias gave him the baggie and Eric and the black female consumed the cocaine, not openly on the floor of the establishment, but by going to the restrooms. Detective Zacarias had to make the cocaine available to the black female and to Eric in order to maintain his cover. It is common for people who arrange cocaine purchases to be rewarded by being given part of the cocaine they assisted in procuring. On another occasion that night while going to the men's room, Eric asked Detective Zacarias for a hit and Detective Zacarias gave Eric the cocaine in front of the security guard on the second floor landing. Detective Zacarias offered cocaine to the security guard on the second floor landing, who looked directly at it, declined, but did make the comment "it looks good." DABT Investigator Weiner later saw the guard smoking marijuana in the men's room. Later that evening at about 2:00 a.m. Detective Zacarias asked the unidentified black female if she could get more cocaine. She motioned for money and he gave her $40. The black female approached a latin male with a goatee. She gave him the cash and she returned with a clear plastic baggie of cocaine which she delivered to Detective Zacarias hand-to-hand at table level. Thereafter, at about 2:20 a.m., Investigator Weiner met Atricia and negotiated a cocaine purchase for $40. Atricia gave Weiner a baggie of cocaine in an open fashion over the table and he delivered currency to her in the same way. At about 3:45 a.m., after Detective Zacarias had made several trips to the men's room, he asked the black female if he could get some more, and gave her another $40. She then went to a latin female who had been identified as "Isabelle," and while DABT Investigator Weiner saw currency change hands, he did not see Isabelle deliver any cocaine to the black female because of obstruction of his view by people in the bar. The black female returned and delivered cocaine to him in a baggie hand-to- hand, at table level about 10 feet from the bar near the dance floor. Events of March 31, 1990. Detective Zacarias, Detective Reid, and DABT Investigators Weiner and Mesa (a female) went to Flame Steak with a confidential informant at about 12:15 a.m. on March 31, 1990. Investigator Weiner met the white latin male patron, "Frank," who asked Weiner if he "needed anything tonight?" Weiner said "yes," he would start with 1/2 gram. Frank pulled out a clear baggie and sold it to Investigator Weiner for $20. The barmaid then came to the table to take drink orders. Investigator Weiner passed the cocaine over the table to Investigator Mesa as the barmaid was serving the drinks and Mesa returned the cocaine baggie to Weiner. Although this transaction could easily have been seen by the barmaid, the evidence is not persuasive that the barmaid actually saw it. DABT Investigator Weiner negotiated a second cocaine purchase from Frank in the front part of a lounge, paying $20 for the cocaine. It was passed hand-to-hand at waist level. While they were at Flame Steak, Weiner asked Mesa to accompany him upstairs to the restrooms. They passed the security guard at the top of the stairs, where Weiner openly passed the cocaine to Mesa, which elicited the wink from the security guard which has previously been referred to in Finding 2 above. Finally at about 2:30 a.m. on March 31, 1990, Investigator Weiner negotiated his third purchase from Frank. The cocaine was purchased for $20 which was exchanged for cocaine in the same manner as the prior purchases. General Findings Despite the numerous cocaine transactions which the Miami Beach Detectives or the DABT Investigators were able to make with ease from several patrons on the licensed premises, during the entire time of the investigation, no City of Miami Beach Detective or DABT Investigator ever observed any other patrons making drug transactions at any time. Obviously Eric saw the purchase made by Detective Zacarias on March 24, 1990, because he came over and asked for "hits" from the cocaine purchased, see, Finding 11, supra. It is not clear whether the barmaid taking drink orders on March 31, 1990, saw Investigator Weiner pass cocaine to Investigator Mesa. It is clear, however, that on two occasions the security guard at the top of the stairs saw cocaine, once when it was passed from Detective Zacarias to Eric (Finding 11), the second time when it was passed from Investigator Weiner to Investigator Mesa (Finding 16). That security guard also smoked marijuana in the bathroom on the licensed premises (Finding 11). There is no evidence that any drug transactions took place in front of the owner, Mr. Gilberto Rivas. The music played by the D.J. in the bar was so loud that it would be difficult for bartenders or barmaids to overhear conversations among patrons not in close proximity to those employees. No person who sold or procured the sale of cocaine ever made any statement which could be construed as an indication that Mr. Rivas, or any bartender or barmaid knew that illegal drug transactions were taking place on the licensed premises. On the other hand, the security guards, who may nominally be independent contractors, but who are under the direction and control of the owner, Mr. Rivas, saw, knew about, and participated (through smoking marijuana) in the use of controlled substances on the licensed premises. No security guard called the police or asked any persons he saw with cocaine to leave the premises. Mr. Gilberto Rivas did not take any special precautions to prevent or detect drug activity on the premises. He did tell the employees to remove anyone whom they may see involved in drug activities. Mr. Gilberto Rivas had no actual knowledge that drug transactions were taking place on the licensed premises. He opposes drug trafficking, and he has not knowingly permitted the sale of drugs at the restaurant. He has even thrown people out of the establishment if he suspected that they were involved in drug- related activities. The majority of the cocaine sale transactions took place in plain view on the licensed premises. The sales did not take place only in closed toilet stalls in one of the restrooms, but in the open part of the restroom, and more importantly, at the bar or at tables in the restaurant. The number of people at the premises did make watching drug transactions somewhat difficult. For example, on several occasions the detectives or investigators had their views obstructed, so that the could not view both the exchange of currency and the delivery of cocaine to persons who purchased drugs for them. Nonetheless, in view of the number of drug buys that were made over a relatively brief period of time, and the remarkable ease with which apparently innocuous inquiries about whether "something was available" were immediately recognized by bar patrons as request to purchase cocaine, and the very brief periods of time in which sales were consummated, there was a sufficiently persistent pattern of open drug activity that the problem should have been noticed by a reasonably diligent licensee. Mr. Rivas focused his attention on patrons who became rowdy, drunk, or would not pay their bills, and failed to take reasonable efforts to discover or prevent drug transactions on the licensed premises.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that All Purchase Corp. d/b/a Flame Steak be found guilty of violation of the beverage laws by permitting patrons to violate the laws of Florida on the licensed premises through the use of cocaine and marijuana, and by maintaining a nuisance on the licensed premises because cocaine was used and sold and marijuana was used on the premises, in violation of Sections 561.29(1)(a) and (c), 823.10 and 893.13(2)(a)5. Florida Statutes. As a result, the beverage license should not be revoked, but should be suspended for a period of 60 days, and an administrative fine of $2,000 should be imposed. DONE and ENTERED this 20th day of April, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-2189 Rulings on proposals made by the Respondent: 1. Adopted in Finding 1. and 3. Accepted, passim. Adopted in Findings 4-6, except that the amount of cocaine sold in each instance was not proven to be 1/2 gram, but from viewing it, it appear to have been approximately 1/2 gram. Adopted in Finding 7. Adopted in Finding 8. Adopted in Findings 9 and 10, except that the packets were approximately 1 to 1 1/2 inches square, not 1/2 inches square. Adopted in Finding 11, except that the transfer of the cocaine was not done in a concealed manner, because Eric saw it. In addition, the evidence supports the inference that the security guard was either employed by the restaurant, or was under the direct supervision and control of Mr. Rivas. Covered in Findings 14-17. Adopted in Finding 18. Accepted as to Mr. Rivas, the bartender, and the barmaids, but rejected with respect to the security guard. Accepted, see, Finding 2. Rejected because there had been 28 calls, not 4 or 5 calls to the Miami Beach Police Department. Discussed in Findings 19-22. Rulings on proposals made by the Department: Covered in Finding 1. Covered in Finding 3, in a general manner as to the impetus for the investigation. The events of each of the nights is separately explained in the Recommended Order. and 4. Rejected as unnecessary; the material purchased was cocaine. To the extent appropriate, covered in Finding 3. While the printout Sergeant Hunker offered was not admitted, his testimony established the number of police calls to the bar. Separately covered in the Findings relating to the nights of March 16 and 31, 1990. Rejected as unnecessary. Gilberto Rivas had very little useful information in his testimony, due to his limited work at the bar. Adopted in Findings 19 and 22. Generally accepted as it relates to the duties of the security guards at the premises and the instructions from Mr. Rivas. The Notice to Show Cause raises no issue with respect to sales to underaged drinkers, so no findings on that subject have been made. Generally rejected because the testimony of Mr. Rivas was rather confusing, no doubt in great part because of the difficulty in translation. Findings with respect to the time Mr. Rivas spends at the location and what he told his employees are made in Findings 5 and 19-22. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Yale L. Galanter, Esquire Beverly Myrberg, Esquire 2800 Biscayne Boulevard 9th Floor Miami, Florida 33137 Leonard Ivey, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South 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
