Findings Of Fact At all times material hereto, Respondent, Quinto Patio Bar, Inc., d/b/a Quinto Patio Bar, held alcoholic beverage license number 23-02231, series 2-COP, for the premises known as Quinto Patio Bar, 1552 West Flagler Street, Miami, Dade County, Florida. In August 1987, a joint task force was formed consisting of police officers from Metropolitan Dade County and the City of Miami, as well as investigators of the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT) , to investigate narcotics complaints against numerous business establishments in Dade County. Among the businesses targeted was the licensed premises at issue in this case. On August 27, 1987, DABT Investigator Oscar Huguet and City of Miami Investigator Pedro Pidermann, operating undercover, entered the licensed premises in furtherance of the aforesaid investigation. Accompanying Investigators Huguet and Pidermann was a confidential informant (CI), who would accompany them on subsequent visits. During the course of this visit, and three other visits that predated September 5, 1987, the investigators familiarized themselves with the licensed premises, and became acquainted with the employees and patrons of the bar. On September 5, 1987, Investigators Huguet and Pidermann, in the company of the CI, returned to the licensed premises. Upon entering the premises, the investigators proceeded to play a game of pool and directed the CI to see if any drugs were available in the bar. The CI walked to the bar, spoke with employee Maria, and accompanied her back to the pool table. At that time, Maria offered to sell the investigators a gram of cocaine for $50. Investigator Pidermann handed Maria a $50 bill, Maria removed a clear plastic packet of cocaine from her pants' pocket and handed it to the CI, and the CI handed it to Investigator Huguet. Huguet held the packet up to the light at eye level, and then commented that it "looks like good stuff." This transaction took place in plain view, and in the presence of several patrons. On September 16, 1987, Investigator Huguet and the CI returned to the licensed premises and seated themselves at the bar. Huguet struck up a conversation with the barmaid Maria, and asked whether she had any cocaine for sale. Maria responded that the individual (later identified as Bandera) who brings in the "stuff" had not come in yet, but to come back the next day. Huguet told Maria he would return the next day and to reserve two grams for him. On September 17, 1987, Investigator Huguet and the CI returned to the licensed premises to make the purchase of cocaine arranged the previous day. Upon entry, Maria told Huguet that the man (Bandera) who sold the cocaine had just left through the front door. Huguet gave the CI $100, and told him to follow the individual and make the purchase. These conversations occurred in the presence of Yolanda, another employee of the licensed premises. After the purchase from Bandera, the CI returned to the bar and handed Investigator Huguet 4 clear plastic bags of cocaine. Huguet examined the bags at eye level and in the presence of Maria, and placed them in his shirt pocket. On September 18, 1987, Investigators Huguet and Pidermann, together with the CI, returned to the licensed premises and began playing pool. A short time later Bandera entered the bar and, upon being motioned over by the CI, approached the investigators. Upon greeting Bandera, Huguet asked him how much cocaine $100 would buy. Bandera replied "two grams", whereupon Huguet borrowed $50 from Pidermann to which he added $50 from his pocket, and tried to hand it to Bandera. Bandera, who had not previously met the investigators, told him no, to meet him in the restroom. Huguet met Bandera in the restroom, and purchased two grams of cocaine for $100. Upon exiting the restroom, Huguet observed Maria looking at him, held up the two clear plastic bags of cocaine, and mouthed the words "thank you" to her. On September 24, 1987, Investigators Huguet and Pidermann, together with the CI, returned to the licensed premises. During the course of this visit, Bandera was observed seated at the bar conversing with Maria. Pidermann and the CI approached Bandera, and asked whether he had any cocaine for sale. Bandera responded yes, and invited Investigator Pidermann to the restroom to consummate the transaction. Pidermann met Bandera in the restroom and purchased two grams of cocaine for $100. Upon exiting the restroom, Investigator Pidermann displayed the cocaine to Investigator Huguet and the CI above the bar. This display occurred in plain view and in the presence of several patrons. On September 25, 1987, Investigators Huguet and Pidermann, together with the CI, returned to the licensed premises and proceeded to play pool. A short time later, Bandera entered the bar, approached the pool table, and placed two clear bags of cocaine on top of the pool table in front of Investigator Huguet. Huguet asked Bandera how much the cocaine would cost and he stated $100. Huguet gave Bandera the money, picked up the packets and held them at eye level for examination. This transaction took place in plain view, in the presence of numerous patrons, and was observed by employee Asucercion. On October 2, 1987, Investigators Huguet and Pidermann returned to the licensed premise. During the course of this visit, Huguet engaged Maria in general conversation and inquired as to the whereabouts of Bandera. Maria advised Huguet that Bandera was probably at the Yambo Bar, and that if he wanted cocaine to see him there. Investigator Huguet left the licensed premises and went to the Yambo Bar, located approximately one block away. There he met with Bandera and told him that he wanted to purchase cocaine but that Pidermann had the money at the Quinto Patio Bar. Bandera told Huguet he would meet him out back of the licensed premises. Huguet returned to the Quinto Patio Bar and spoke with Investigator Pidermann in the presence of employee Asucercion. Huguet told Pidermann that for $100 Bandera would supply the cocaine. Pidermann gave Huguet the money, and Huguet went out back to purchase the cocaine from Bandera. After the purchase from Bandera, Investigator Huguet returned to the bar and placed two clear plastic bags of cocaine on the bar counter in front of Investigator Pidermann and Asucercion. Pidermann picked up the cocaine, examined it, and placed it in his pocket. On October 3, 1987, Investigators Huguet and Pidermann returned to the licensed premises and seated themselves at the bar. While the investigators were being served by Maria and an unidentified barmaid, Huguet inquired as to the whereabouts of Bandera. Maria replied that he was probably at the Yambo selling cocaine. Investigator Huguet left the licensed premises, met Bandera at the Yambo Bar, and arranged the same drug deal they had made the previous day. Huguet returned to the Quinto Patio Bar and spoke with Investigator Pidermann in the presence of Maria. Huguet again told Pidermann that for $100 Bandera would supply the cocaine. Pidermann gave Huguet the money, and Huguet went out back to purchase the cocaine from Bandera. After the purchase from Bandera, Investigator Huguet returned to the bar and seated himself next to Pidermann. In front of Maria and the unidentified bar maid, Huguet wrapped the two clear plastic bags of cocaine in a napkin and handed them to Pidermann. All of the events summarized in the preceding paragraphs took place at the licensed premises during normal business hours. At no time did respondent's employees express concern about any of the drug transactions. In fact, the proof demonstrates that the employees knew that cocaine was being sold, delivered, or possessed on the licensed premises on a regular, frequent, and flagrant basis. Ms. Dominga Lora (Lora), is the sole corporate officer of the licensee and owner of 100 percent of its stock. According to her, she is generally always on the licensed premises, and usually is seated at a small table by the pool table. Notwithstanding the fact that the lighting within the premises is good, Lora averred that she had no knowledge of any drug transactions on the premises and, in fact, doubted that any did occur. Lora's testimony is not credible. The proof is clear and convincing that the drug transactions previously discussed did occur on the licensed premises, and that they occurred in an open manner visible to patrons and employees alike. If reasonably diligent, Lora had to observe that drug transactions were occurring on the licensed premises but failed to make any reasonable effort to prevent them. Under the circumstances, it is concluded that Lora knew such sales occurred or negligently overlooked them.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order revoking alcoholic beverage license number 23-02231, series 2-COP, issued to Quinto Patio Bar, Inc., d/b/a Quinto Patio Bar, for the premises located at 1552 West Flagler Street, Miami, Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of May, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1988. COPIES FURNISHED: Katherine A. Emrich, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Rene Valdes 1830 N.W. 7th Street Miami, Florida 33125 Daniel Bosanko, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether Respondent has fostered, condoned, and/or negligently overlooked trafficking in and use of illegal narcotics and controlled substances on or about the licensed premises. Whether Respondent has failed to exercise due diligence in supervising his employees and managing his licensed premises so as to prevent the illegal trafficking and use of narcotics on the licensed premises. Whether Respondent may transfer his alcoholic beverage license to a qualified licensee or if it should be permanently revoked.
Findings Of Fact Respondent is the holder of alcoholic beverage license number 69-0876, series 2-COP, for a licensed premises known as Stormy Norman's, which is located at 3006 South U.S. 17- 92, Casselberry, Seminole County, Florida. On March 13, 1990, five patrons were observed passing and smoking a marijuana cigarette, just outside the rear door on the "patio". The "patio" is a fenced-in, partially covered area, which contains picnic tables and is located immediately behind the licensed premises. The patio is primarily accessible through the rear door of the licensed premises, which is usually left open during business hours. However, access could be made to the patio through the back of the premises onto the patio without knowledge of the Respondent as to who was there or what activity was going on. On March 13, 1990, a patron known as "Billy" sold marijuana to two different patrons on the patio. Subsequently, other patrons were observed dividing up marijuana into plastic bags, rolling "joints" and smoking marijuana on the patio. During this time, the rear door of the licensed premises was open and the smoke from the marijuana cigarettes was easily detectable inside the premises. Also, inside the licenses premises, several patrons openly discussed the purchase and consumption of controlled substances in the presence of employees. On March 14, 1990, a patron known as "Kelly" sold a plastic bag containing marijuana for the sum of $35.00. The sale was discussed in the presence of the bartender known as "Gordie". After this transaction, Kelly offered to sell large quantities of cocaine to Petitioner's investigators. On March 15, 1990, while Respondent was on the premises, several patrons rolled "joints", manufactured a "pipe" and smoked marijuana on the patio. These patrons would freely enter and depart the licensed premises from the patio and did nothing to conceal their activities. Inside the licensed premises, the patrons openly discussed the use of controlled substances and extended invitations to other patrons to consume the same on the patio. In addition, Kelly openly sold a baggy of marijuana to a patron, in plain view and in the presence of several other patrons and bartender Gordie. On March 20, 1990, several patrons were rolling and smoking marijuana cigarettes on the patio. A patron known as "Rabbit" sold and delivered marijuana to another patron known as "Stan". During this time, Respondent was on the licensed premises and was in a position to detect the use of controlled substances. On March 21, 1990, a patron Billy gave Petitioner's investigator a muscle relaxant in exchange for a beer, while in the presence of bartender Gordie at the licensed premises. During this time, Respondent was playing darts near the rear door of the licensed premises and was observed looking out the rear door and watching patrons smoke marijuana. While doing so, several patrons were heard to yell "He's out back doing drugs," in response to bartender Gordie's inquiry about another patron. On March 22, 1990, Petitioner's investigators made two controlled buys of marijuana while on the patio. One of the sellers was Respondent's day manager, known as "Little Dave". On the same date, while Respondent was on the licensed premises, several patrons were observed smoking marijuana on the patio, and other patrons were observed in possession of plastic bags containing marijuana inside the licensed premises. On March 28, 1990, Petitioner's investigator made a controlled buy of marijuana from Respondent's day manager, Little Dave. Just prior to this sale, the bartender known as "Cookie" was asked to make change for a marijuana purchase. In response thereto, Cookie smiled and freely made change for a twenty dollar bill. On this occasion, patrons openly smoked marijuana on the patio, the odor of which was easily detectable inside the licensed premises. On April 4, 1990, patrons were smoking marijuana on the patio, and the bartender Cookie had open conversations regarding the use of cocaine. On April 10, 1990, patron Stan sold marijuana on the patio to two patrons. On April 12, 1990, a patron known as "Fred" approached the bar to purchase a beer. While at the bar, Fred openly displayed two small white pills and a small quantity of marijuana on the bar counter in the presence of bartender Gordie. Subsequently, Fred went to the patio, where he was observed selling white pills to patrons, which were later determined to be "white- crosses". On April 18, 1990, several patrons were observed rolling and smoking marijuana cigarettes. On April 19, 1990, Respondent's day manager, Little Dave, sold a small plastic bag containing marijuana to Petitioner's investigator for $35 while on the patio. Throughout this transaction, there was a young boy, approximately 8 years of age, playing on the patio. Also, bartender Cookie went to the patio on three occasions while on duty to smoke a marijuana cigarette. On one occasion she was observed blowing marijuana smoke at bartender Gordie's face. During this general time period, Respondent was on the patio while several patrons were smoking marijuana. On April 24, 1990, Petitioner's investigator made a purchase of a small bag of marijuana in plain view of the bar while on the licensed premises. On April 25, 1990, several patrons were observed smoking marijuana on the patio of the licensed premises. At no time throughout the entire investigation did the licensee or any of his employees do or say anything to prevent employees from using or selling controlled substances on the licensed premises. The Respondent did not participate in the sale of any controlled substances or drugs, nor did he witness the sale of drugs at any time during the course of the investigation. Respondent was aware of customers smoking marijuana on the patio on several occasions and did not evict them from the premises. Respondent did ask Little Dave to leave the property on divers occasions when it was discovered that he was selling marijuana, but he was allowed to return to the premises. Respondent was taken advantage of by his friends and customers and was not aware that drug use was so prevalent, although he did know that at times some marijuana smoking was going on. Respondent seeks to transfer his beverage license, as provided by Section 561.3 2, Florida Statutes, to Elizabeth Ann Allen of Casselberry, Florida, who would qualify for a temporary license upon application for transfer as provided in Section 561.331, Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent's Alcoholic Beverage License Number 69- 0876, Series 2-COP be REVOKED. DONE AND ENTERED this 4th day of September, 1990, in Tallahassee, Leon County, Florida. DANIEL N. KILBRIDE 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 4 day of September, 1990. COPIES FURNISHED: Thomas A. Klein Assistant General Counsel Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000 Mark E. NeJame, Esquire 1520 E. Amelia Street Orlando, FL 32803 Leonard Ivey Director, DABT Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000 Joseph A. Sole Secretary Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000
Findings Of Fact Respondent holds alcoholic beverage license no. 56-526, Series 2-COP. The licensed premises is known as the "Green Frog" and is located at 1216 Santa Rosa Boulevard, Fort Walton Beach, Florida. The corporate officers of Respondent are Charles J. Schoener, Marlene D. Schoener, Mitch M. Smith and Charles M. Hall. On September 27, 1983, Investigator Robert Randle of the Gulf Breeze Police Department was approached by two individuals as he exited the licensed premises of the Green Frog and was asked if he wanted to purchase some marijuana. While discussing the marijuana purchase, Randle was approached by the Green Frog doorman who was working on the premises that night. The doorman, known as "Animal," inquired of Randle if he wanted to buy a small quantity of cocaine and displayed a small plastic baggie containing a white substance which he offered to sell for $30. After paying the doorman $30 for the small package represented to be cocaine, Randle submitted the contents for chemical analysis. Subsequent analysis revealed the presence of no controlled substance. On or about February 18, 1984, Officer Randle again entered the licensed premises of the Green Frog in an undercover capacity. While on the licensed premises, Randle contacted a dancer known as "Angel." Randle asked Angel where he could obtain some narcotics and she directed him to her apartment. Randle went to the apartment but was unable to purchase any drugs. He returned to the Green Frog and told Angel that he had been unsuccessful. She left Randle's presence but later delivered a partial marijuana cigarette to him on the licensed premises. Subsequent analysis of the partial cigarette showed the contents to be cannabis/marijuana. On or about February 28, 1984, Officer Randle again entered the licensed premises in an undercover capacity. On this date, he made contact with a dancer known as "Sugar" and asked her if he could obtain some marijuana or cocaine. Sugar directed Randle to the dancer Angel's apartment where he was told he could purchase a baggie of marijuana. Upon reaching the apartment Officer Randle informed Angel that Sugar had told him he could buy a bag of marijuana from her. At this time Angel sold a baggie of marijuana to Officer Randle for $25. Subsequent analysis of the baggie's contents revealed that it contained cannabis/marijuana. On or about March 6, 1984, Officer Randle returned to the licensed premises as part of this investigation. Upon entering, Randle engaged the dancer Sugar in conversation and advised her he was looking for narcotics. Shortly thereafter, Sugar told Randle he could purchase one-quarter gram of cocaine for $25. Later, she informed him that she was obtaining the cocaine from another dancer who would only sell half-gram amounts for $50. Randle then gave Sugar $50 and observed Sugar leave his table, speak to an unidentified dancer and return to his table. Sugar then handed Randle a plastic baggie containing a white powdery substance. Subsequent analysis of the contents of the bag showed that it contained cocaine. On or about March 17, 1984, Officer Randle again entered the licensed premises as part of the ongoing investigation. Randle made contact with the dancer "Kelly" and the dancer "Lisa." Randle told Kelly that he had "scored" some good cocaine previously from the dancer Sugar and that he was looking for her. In response to this statement, Kelly informed Randle that she had supplied Sugar with the cocaine and that she could sell him a half-gram of cocaine for $50 that evening. Later, Randle was approached by the dancer Lisa who asked him if he was holding some cocaine. Randle informed her that he was looking for cocaine and asked her if she could sell him some. Lisa also told him that she was waiting for her supplier and that she would sell him a $50 package when the supplier arrived. While waiting for the supplier to arrive on the premises, Randle was again approached by Lisa who gave him the phone number of her supplier and suggested he call the supplier and tell him to come to the licensed premises with the cocaine. Later, a male patron arrived at the premises and was observed talking to Lisa by Randle. Shortly thereafter, both Lisa and Kelly delivered small plastic baggies containing white substances to Randle who was seated at a table. Both deliveries were made inside the lounge in plain view. Subsequent analysis confirmed that both packages contained cocaine. Beginning around late February 1984, Mr. Tim Forehand regularly sold and supplied cocaine on the licensed premises. His sales were generally in one- half gram packages and the dollar amount of such sales on the licensed premises ranged from $200 to $1800 per night. Forehand supplied the cocaine on March 17, 1984, to the dancers Lisa and Kelly who then sold this substance to Officer Randle. Forehand also sold cocaine six or eight times to a corporate officer's son, David Schoener, who worked as a bartender on the licensed premises. On one occasion, Charles Schoener barred Forehand from the licensed premises for dealing drugs. He was, however, allowed back onto the premises within one week, The testimony of Lisa Dixon, Melissa Crawford (a/k/a Sugar) and Tim Forehand indicated that drug use and sales in the licensed premises were open and extensive. Sugar testified that see had used cocaine with Charles Hall, an officer-owner, on the licensed premises. Similarly, Lisa Dixon testified that she was in the presence of Charles Schoener on an occasion when he used cocaine in the licensed premises. In their testimony, Charles Schoener and Charles Hall denied using drugs on the licensed premises. Their testimony and that of a third owner- manager, Mitch Smith, a bartender, Jim Ellis, and a dancer, Evangeline Potts, indicated that drug use and sales were rarely observed and that action was taken to bar customers or warn employees when such incidents occurred. The documentary evidence and testimony of both Petitioner's and Respondent's witnesses established that Respondent had a stated policy against drug use or possession on the premises. Employee rules to this effect had been adopted and posted for over a year and periodic employee meetings were held at which the no drug policy was discussed. However, enforcement was not vigorous as indicated by the fact that Forehand was allowed to return to the Green Frog even though he had earlier been barred for drug activity. Further, Charles Schoener, the corporation president, did not discharge the dancer Kelly, even when he suspected her of illegal drug activity on the licensed premises. Much of the testimony of the witnesses with the exception of Officer Randle and Officer Kiker (who was not directly involved), was self-serving and lacking in credibility. Forehand, Dixon and Crawford have all been arrested and charged with criminal offenses. They were advised that their cooperation in this proceeding could favorably effect their sentences if convicted. Respondent's witnesses are owners and employees of the licensed premises, and thus have a stake in preserving the beverage license. In addition to their denials, the purported use of cocaine by Charles Schoener and Charles Hall on the licensed premises in the presence of their employees is inconsistent with their efforts to prohibit or at least discourage drug use. Further, the testimony of Officer Randle indicates that drug sales and use were not "wide open" as claimed by Petitioner's other witnesses. Randle visited the licensed premises in an undercover capacity on numerous occasions beginning September 27, 1983, but was not able to obtain a delivery of a controlled substance until February 18, 1984.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending Respondent's alcoholic beverage license for a period of 90 days, including the emergency suspension now in effect. DONE and ENTERED this 17th day of April, 1984, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1984.
The Issue The issue in this case is whether Petitioner should suspend or revoke Respondent's alcoholic beverage license, pursuant to Section 561.29(1), Florida Statutes (1995),1 and Florida Administrative Rule 61A-2.022,2 because Respondent operated the licensed premises in a manner that was a public nuisance and permitted others to violate state criminal laws prohibiting the possession and use of controlled substances, or both.
Findings Of Fact Petitioner is the state agency responsible for regulating alcoholic beverage licenses. Respondent holds alcoholic beverage license number 15-02695, series 2-COP for the Red Top Lounge located at 2804 Kennedy Street, Mims, Florida (the "licensed premises"). Respondent is the sole proprietor of the licensed premises. On February 13, 1997, two of Petitioner's special agents ("SAS") and other undercover law enforcement officers entered the licensed premises as part of an ongoing narcotics investigation. Several patrons of the licensed premises were consuming marijuana and rolling marijuana cigars in plain view of Respondent's employees and managers. Respondent was not present at the time. On February 28, 1997, the same SAS and law enforcement officers returned to the licensed premises incident to the same investigation. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Black." On March 14, 1997, the same SAS and law enforcement officers returned to the licensed premises incident to the same investigation. After midnight on March 15, 1997, the SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Marty." On March 15, 1997, the same SAS and law enforcement officers returned to the licensed premises, incident to the same investigation. After midnight on March 16, 1997, the SAS purchased a small package of marijuana for $10 from an unknown patron. The disc jockey routinely encouraged patrons over the public address system to smoke marijuana inside the licensed premises. On April 25, 1997, one of the same SAS, another SAS, and other law enforcement officers returned to the licensed premises incident to the same investigation. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Kenny Harvey." On April 26, 1997, the same SAS and law enforcement officers involved in the investigation on the previous day returned to the licensed premises. After midnight on April 27, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. On May 2, 1997, two SAS previously involved in the investigation and other law enforcement officers returned to the licensed premises. After midnight on May 3, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. After midnight on May 3, 1997, two SAS previously involved in the investigation and other law enforcement officers returned to the licensed premises. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Roy." After the previous transaction on May 3, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. After midnight on May 4, 1997, the SAS purchased a small package of marijuana for $10 from an unknown patron. Subsequent to each purchase of marijuana by the SAS, the items purchased were chemically analyzed in a laboratory and found to be marijuana. Subsequent to each purchase of cocaine by the SAS, the items purchased were chemically analyzed in a laboratory and found to be cocaine. The SAS involved in the investigation have extensive experience and training in narcotics investigation and detection of controlled substances. They have conducted numerous undercover investigations. Each agent has personal knowledge of the appearance and smell of marijuana. The open, flagrant, and notorious drug activity on the licensed premises was the worst each agent had observed in his career. Each time the SAS entered the licensed premises, underage patrons consumed alcoholic beverages. More than half of the patrons present on each occasion consumed and rolled marijuana cigars. The second-hand marijuana smoke inside the premises was so great that the SAS were concerned for their personal health and the affect the second-hand smoke could have on each agent if subjected to a random drug test, pursuant to agency policy. The purchase, consumption, and use of marijuana occurred in plain view of Respondent's employees and managers. Respondent's managers and employees never attempted to prohibit the illegal drug activity. Respondent was never present on the licensed premises. She was caring for her daughter who died on April 2, 1997. During the time she was caring for daughter, Respondent relinquished management and control of the licensed premises to her granddaughter and her boyfriend.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's alcohol and tobacco license. DONE AND ENTERED this 7th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1997.
Findings Of Fact The parties stipulated to the factual matters set forth in the Petitioner's emergency order of suspension received by Respondent on July 16, 1987. Those facts are set forth in the following paragraphs 1 through 14. The Stipulated Facts The records of the Petitioner disclose that 2000 Collins Avenue, Corp., is the holder of Alcoholic Beverage License No. 23-02639, Series 4-COP, for a licensed premises known as the Five O'Clock Club, which is located at 2000 Collins Avenue, Miami Beach, Dade County, Florida. On or about May 20, 1987, Petitioner's Investigators O. Santana and H. Garcia, entered the licensed premises of the Respondent as part of an ongoing narcotics investigation. While on the premises, Investigator Garcia purchased crack cocaine in plain view at the bar from a patron named "Maggy". Two male bartenders named Joe and Paul were also present. On May 27, 1987, Investigators Santana and Garcia returned to the licensed premises of the Respondent known as the Five O'Clock Club. Bartender Joe was on duty at this time. At approximately 6:45 p.m., Maggy appeared and inquired of Investigator Garcia whether he wished to purchase more crack cocaine. Investigator Garcia indicated that he desired to do so and gave Maggy $40.00 for the purchase. Maggy left Investigator Garcia, returned shortly thereafter and placed the crack cocaine in a napkin on the bar counter. Maggy cut a small piece of the crack cocaine rock and placed it in her mouth in plain view of the bartender and patrons on the licensed premises. On June 3, 1987, Investigators Santana and Garcia again entered the Five O'Clock Club in an undercover capacity. Once on the premises, the investigators were approached by a white male patron later identified as "Vincent". He asked if the investigators wished to purchase any drugs. The investigators indicated that they would take any thing that was available. The investigators indicated that they would prefer some powder cocaine and if it was unavailable some rock cocaine. Vincent went to the end of the bar and engaged in conversation with an unidentified latin male. He returned to the investigators and indicated that he could get some rock cocaine immediately from someone in the bar. Vincent indicated that he could get three cocaine rocks for $40.00 and the investigators agreed to purchase them. Vincent then returned to talk to the latin male who was also joined by Joe, the bartender on duty . During conversation between these three, Joe indicated that they should be careful to whom they sold as he did not want to get arrested. Vincent then returned to the investigators and requested identification to indicate that they were not police officers. Investigator Garcia removed his wallet showing Vincent false identification which Vincent accepted as legitimate. Garcia gave $40.00 to Vincent who then walked back over to the latin male. Vincent inquired of Joe whether Investigators Garcia and Santana were "okay". Joe indicated that the investigators were okay and were regulars at the bar. Vincent then placed a napkin on the bar in front of the investigators. When the napkin was opened on the bar top, three crack cocaine rocks were revealed. This transaction occurred, and the cocaine rocks exposed, in plain view of patrons and employees on the licensed premises. Joe made no effort at any time to terminate the transaction. On June 4, 1987, Investigators Santana and Garcia returned to the licensed premises known as the Five O'Clock Club in an undercover capacity. At that time, bartender "Billy" was on duty. After a period of time, the investigators observed a black male walk up to Billy and indicate that he was going to "make his rounds." The black male then proceeded from patron to patron speaking in short conversations. When the black male reached an unidentified male patron playing an amusement device, the investigators heard the black male ask the patron if he wanted some "crack". The patron indicated yes and handed the black male $10.00. The black male handed a small, clear plastic bag containing a brownish rock to the patron. Shortly after this transaction occurred, Vincent again returned to the licensed premises. He approached the investigators and inquired whether or not they desired to purchase some additional crack. The investigators indicated that they did, and Garcia handed Vincent $40.00 for the purchase. Vincent left the bar and returned a period of time later and placed a napkin with three cocaine rocks on the bar in front of the investigators. While the cocaine rocks were still in plain view on the bar, Billy served a beer to Vincent. Billy made no effort whatsoever to either complain about or terminate the drug transaction taking place in plain view on the licensed premises. On June 8, 1987, Investigators Santana and Garcia again returned to the Five O'Clock Club in an undercover capacity. While on the premises, the investigators observed a white female walk into the bar and engage several patrons in short conversations. She was stopped and handed a $20.00 bill by another white female patron identified as "Candy". The first white female reached into the front of her pants and pulled out a small plastic bag containing a white powder which she then handed to Candy. Candy stated, "I'm going to the restroom and have some fun." Shortly after this transaction occurred, the investigators left the premises. After exiting the Five O'Clock Club , they were confronted by Vincent. Vincent inquired whether the investigators intended to buy some crack from him on this date. The investigators indicated they would, however they did not wish to make a purchase on a public street. Vincent suggested they go back into the Five O'Clock Club and conduct the transaction at the bar. They did. While seated at the bar, Investigator Garcia gave Vincent $40.00. Billy, the bartender then on duty, stated to Vincent, "you are a great salesman." Vincent then left the bar and returned shortly thereafter placing 3 pieces of rock cocaine on the bar for the investigators and suggested that it was the "best crack on Miami Beach." After the investigators took possession of the cocaine, Billy remarked, "do you really like that stuff?" On June 15, 1987, Investigators Santana and Garcia again returned to the licensed premises of the Five O'Clock Club in an undercover capacity. After a period of time on the licensed premises, the investigators were unable to locate any patrons with whom they had previously transacted drug purchases. Upon leaving the premises, the investigators were approached by an individual known as "Eita", who had been previously introduced to them by Vincent. Eita and the investigators went back into the Five O'Clock Club. Eita informed the investigators that Vincent was incarcerated and that he, Eita, could obtain crack cocaine for them. The investigators agreed and provided Eita $40.00 . Eita left the premises and returned shortly with three cocaine rocks. Eita, in the presence of Billy the bartender, placed the three cocaine rocks on the bar of the licensed premises. He then wrapped the cocaine rocks in a brown piece of paper. Investigator Garcia picked the rocks up and placed them in his pocket. This transaction occurred in the immediate presence of Bill and other patrons on the licensed premises. On June 17, 1987, Investigators Santana and Garcia again returned to the Five O'Clock Club in an undercover capacity. At this time the licensed premises were being serviced by a barmaid known as "Toni". Eita again appeared on the licensed premises. Eita offered to sell crack cocaine to Investigators Santana and Garcia. The investigators agreed and in furtherance of the transaction provided Eita $40.00. Eita left the premises and returned shortly thereafter and seated himself next to the investigators. Eita opened his purse and began to place pieces of rock cocaine on the bar top. While this transpired Toni approached the group and placed a beer in front of Eita. Toni observed as Eita took three cocaine rocks and wrapped them in a cigarette wrapper and handed them to Investigator Garcia. Toni made no effort to either complain about or otherwise terminate the drug transaction taking place on the licensed premises. On the same date as indicated in paragraph 8 above, Investigators Santana and Garcia approached a patron known as "Paco" while on the licensed premises of the Five O'Clock Club. They engaged in a casual conversation with Paco who was known to them as a crack dealer in the Miami Beach area. They inquired of Paco whether or not he could obtain crack cocaine for them and he replied that he could. The investigators provided Paco $30.00. Paco handed Investigator Garcia three cocaine rocks which Garcia placed on the bar and subsequently wrapped in a napkin. This transaction occurred without complaint on the licensed premises in the plain view of Toni and other patrons. On June 22, 1987, Investigators Santana and Garcia returned to the licensed premises in an undercover capacity. Bartender Billy was on duty at this time. After a period of time, Paco arrived on the licensed premises and inquired of the investigators whether they needed "any thing" today. Investigator Garcia asked Paco if he could obtain some rock cocaine on this date. Paco indicated that he could. Paco left the premises, returned shortly thereafter and gave Investigator Garcia a large cocaine rock. Paco then demanded $40.00. This transaction took place in plain view at the bar in the presence of Billy and other patrons in the licensed premises. At no time did Billy complain about or terminate the transaction. On June 24, 1987, Investigators Santana and Garcia entered the licensed premises of the Five O'Clock Club in an undercover capacity. Bartender Joe was on duty at this time. Paco was on the licensed premises. The investigators listened while several other patrons approached Paco in an effort to obtain rock cocaine. Paco indicated that rock cocaine was presently unavailable. After a period of time, a black male came into the licensed premises and sat by Paco. The black male provided Paco several cocaine rocks which he distributed to the patrons who had made the previous requests. Further, Paco provided Investigator Garcia with a large cocaine rock for the purchase price of $30.00. These transactions took place at the bar and in the presence of Joe and other patrons. At no time did Joe object to the drug transactions taking place at the bar of the Five O'Clock Club On the same date identified in paragraph 11, shortly after the foregoing transactions occurred, Eita came into the Five O'Clock Club. Eita asked the investigators if they wished to purchase any rock cocaine and they indicated that they did. They provided Eita $35.00 whereupon he left the premises. Eita returned shortly thereafter and placed cocaine rocks on the bar in plain view of Joe and other patrons at the bar. The investigators then took possession of the cocaine. At no time did Joe protest the occurrence of this transactions. On July 13, 1987, Investigators Santana and Garcia returned to the licensed premises known as the Five O'Clock Club in an undercover capacity. While seated at the bar, the investigators purchased two cocaine rocks from a patron known as "Orlando". Bartender Billy was on duty at this time. The transaction took place at the bar in plain view of Billy and other patrons on the licensed premises. At no time did any employee of the bar make an effort to terminate the transaction. All substances purchased at the licensed premises and identified as cocaine have been laboratory analyzed and determined to be cocaine. Additional Facts In addition to the above stipulated facts, Respondent presented testimony upon which the following factual findings are based. Myrtle Klass is the predominant shareholder of the respondent, 2000 Collins Avenue Corporation. Mrs. Klass is 88 years of age, is in declining health, and requires the services of a full-time caregiver. Mrs. Klass's late husband purchased the building in which the Five O'Clock Club is located in the late 1950's. Upon his death a trust fund was created, 75% of which goes to Mrs. Klass and 25% of which is divided between the Klass's two children, Mrs. Marshall and her brother. Her brother, because of health problems, is totally dependent on the income from such trust fund. Portions of Mrs. Marshall's share of the trust fund are passed on to her children, one of whom is likewise dependent on such income. At the time of acquisition of the 2000 Collins Avenue building and license No. 23-2639, the neighborhood was a substantially better locale than at present. The neighborhood has significantly declined and is populated by "street people" whose involvement in drug dealing is endemic. Mrs. Klass, since 1963, has utilized the services of a certified public accountant-attorney and a property manager to manage the overall operation of the licensed property. She has utilized the same "on premises" manager since 1963 to supervise the day to day operation of the Five O'Clock Club. There have been no prior violations during the approximate 25 years in which the premises have been operated in this manner. The Klass family trust sold the building in early 1987 because of the decline in the neighborhood. The Five O'Clock Club was due to be closed permanently in September 1987. At the time of the service of the Petitioner's emergency order, license No. 23-2639, services 4-COP, was the subject of a contract for sale for $45,000 to the owner of a family restaurant located elsewhere on Collins Avenue. Because of the emergency order of suspension, the contract could not be completed. Because of Mrs. Klass's age and health, her daughter, Doris Marshall, represents that Mrs. Klass has no desire to hold any alcoholic beverage license, but only desires to sell the existing license so as not to deprive the trust and the persons dependent on the income therefrom of an asset valued at $45,000.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by Petitioner revoking Respondent's alcoholic beverage license No. 23-2639, series 4-COP, subject first to a suspension of 120 days or such lesser period of time within which Respondent may sell the license, in an arms length transfer, to a duly qualified transferee who will agree to 1) operate such license at a location other than the present licensed premises 2) not employ any personnel of the Respondent that were present on the premises during the incidents set forth in the Notice To Show Cause and 3) operate the license under a name other than the "5 O'Clock Club." Upon completion of the license transfer in accordance with the above stated conditions or the expiration of the 120 day suspension period, whichever occurs first, the license, as to the Respondent in this case, shall stand revoked. DONE AND RECOMMENDED this 29th day of February, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 29th day of February, 1988. APPENDIX The following constitutes my ruling on proposed findings of fact submitted by the Respondent. All stipulated facts are included in findings numbered 1-14. Accepted in finding number 15. Accepted in finding number 16. Accepted in finding number 17. Accepted in finding number 18. Accepted in finding number 19. Accepted in finding number 20. COPIES FURNISHED: Douglas Moody, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Harold F. X. Purnell, Esquire OERTEL & HOFFMAN, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Daniel Bosanko, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Van B. Poole, 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
The Issue Counts 1, 2, 4, 6, 7, 8 and 11 Whether the Respondent, or its agents, servants or employees, did unlawfully sell a controlled substance, to wit: powder cocaine, on the licensed premises, in violation of Section 893.13(1)(a), Florida Statutes, on the following dates: July 14, 20, August 4, 12, 19, 25 and September 10, 1999. Count 3 Whether the Respondent, or its agents, servants or employees, did unlawfully sell a controlled substance, to wit: powder cocaine, on the licensed premises on July 28, 1999, in violation of Section 893.13(1)(a), Florida Statutes. Count 5, 9 and 10 Whether the Respondent, or its agent, servants or employee, did unlawfully sell a controlled substance, to wit: methylenediozymethamphetamine, on the licensed premises, in violation of Section 893.13(1)(a), Florida Statutes, on the following dates: August 10, 25 and September 1, 1999. Whether Respondent permitted another on the licensed premises to sell a controlled substance, in violation of Section 561.29(1)(a), Florida Statutes.
Findings Of Fact At all time relevant and material to this proceeding, Respondent, CDN Southern Investments, Inc., d/b/a Southern Nights, held license number 58-00375, series 4COP, which authorizes it to sell alcoholic beverages at retail at the licensed premises of Southern Nights, located in Orange County, Florida. Respondent has been in continuous operation at 375 South Bumby Avenue, Orlando, Florida since October 1987. At the times material to this action, Denny Johns was the registered agent, president and one of the principal owners of Respondent's corporation. On May 18, 1999, Petitioner initiated an investigation of the licensed premises, Southern Nights, based on a complaint regarding narcotics activity. It was decided that one or two special agents from Petitioner's Division of Alcoholic Beverages and Tobacco would enter the licensed premises in an undercover capacity, appearing to be a patron, make observations, and attempt to purchase illegal substances for money while on the premises. During each of the encounters described below, the transactions were made in the early morning hours of the day following the actual day the Agent entered the premises, and that each entry was made around 11:30 p.m. On July 13, 1999, Special Agent Melissa Jo Winfred entered the licensed premises in an undercover capacity. The Agent made contact with, and requested to purchase cocaine from Kert (later identified as Kert W. Reynolds), a patron of the licensed premises. Agent Winfred purchased twenty dollars of a white powder, which appeared to be cocaine, from Kert. The purchase was made near the rear bar and the dance floor of the licensed premises. On July 20, 1999, Special Agents Winfred and Nicholas Collura entered the licensed premises in an undercover capacity. The Agents made contact with, and requested to purchase cocaine from Kert, the aforementioned patron of the licensed premises, while seated at the bar. Kert returned to the bar and exchanged a white substance, which appeared to be cocaine, for twenty dollars with Agent Winfred. On July 27, 1999, Agents Winfred and Collura entered the licensed premises in an undercover capacity. The Agents made contact with Stewart, a bartender for the licensed premises (later identified as Stewart W. Bush). Agent Collura requested to purchase cocaine from Stewart. Agent Collura gave Stewart twenty dollars. Stewart then placed a closed matchbook in front of Agent Collura containing a plastic bag filled with a white powder substance, which later appeared to be cocaine. On August 3, 1999, Agents Winfred and Collura entered the licensed premises in an undercover capacity. The Agents made contact and requested to purchase cocaine from Bruce (later identified as Bruce Wayne Lear, Jr.), a patron of the licensed premises. This conversation took place at the bar of the licensed premises. Bruce exchanged a white powder substance with Agent Collura for twenty dollars. Agent Collura testified that he "field tested" the substance, once outside the licensed premises, the results of the field test are unknown. Relative to the August 3, 1999, incident, the testimony of the Agents was inconsistent concerning any involvement of Stewart Bush. Agent Collura testified that he asked Stewart Bush for Drugs and he introduced him to Bruce Lear, a aforementioned patron of the licensed premises. Agent Winfred, who was with Collura on this occasion, could not recall with any certainty who the bartender was that night nor any specific involvement of Stewart Bush. The case report and the officer's case investigative entries, prepared by Agent Winfred and reviewed for accuracy by Agent Collura, do not reference any involvement by Stewart Bush or even that he was there that night. Therefore, the evidence is insufficient to link Stewart Bush with any alleged drug activity on the night of August 3, 1999. On August 5, 1999, Petitioner's Agents visited Respondent's premises in an undercover capacity but neither purchased nor observed any sales of alleged controlled substances. Agent Winfred was on the premises of Respondent on this date and sought to inquire of a bartender, other than Stewart Bush, about drugs. The bartender gave her the response, "Do not ask me that." On August 10, 1999, Agent Collura entered the licensed premises in an undercover capacity. The Agent made contact with, and requested to purchase "beans" (referring to methylenedioxymethamphetamine, hereinafter, MDMA) from Bruce, a patron of the licensed premises. The conversation took place at the bar of the licensed premises. Bruce left the licensed premises and returned with two pills. Bruce exchanged the pills to Agent Collura for fifty dollars. On August 12, 1999, Agents Winfred and Collura entered the licensed premises in an undercover capacity. The Agents made contact with, and requested to purchase cocaine from Kert, the aforementioned patron of the licensed premises. Kert exchanged three bags of a white substance, which appeared to be cocaine, for fifty dollars with Agent Winfred. On August 18, 1999, Agents Winfred and Greenlee entered the licensed premises in an undercover capacity. The Agents made contact with, and requested to purchase drugs from "Patrick," a patron of the licensed premises. "Patrick" sold a white powder substance to the Agents near the bathrooms of the licensed premises. "Patrick" was never further identified. On August 24, 1999, Agents Winfred and Collura entered the licensed premises in an undercover capacity. The Agents made contact with, and requested to purchase drugs from Kert, the aforementioned patron of the licensed premises. The Agents purchased a white powder substance from Kert. The transaction between the Agents and Kert took place at the bar of the licensed premises. On August 25, 1999, Agents Winfred and Collura entered the licensed premises in an undercover capacity. The Agents made contact with, and requested to purchase drugs from Bruce, the aforementioned patron of the licensed premises. Agent Collura purchased one pill for twenty-five dollars from Bruce. On August 31, 1999, Agents Winfred and Collura entered the licensed premises in an undercover capacity. Agent Collura requested MDMA and purchased two pills from Bruce, the aforementioned patron of the licensed premises. On September 9, 1999, Agent Winfred entered the licensed premises in an undercover capacity. Agent Winfred purchased twenty dollars of a white powder substance from Kert, the aforementioned patron of the licensed premises. The transaction took place at the main bar of the licensed premises. On September 21, 1999, Agents Winfred and Collura entered the licensed premises in an undercover capacity. The purpose for the visit was in order to identify persons from whom the Agents purchased drugs. On September 28, 1999, Agents Winfred and Collura entered the licensed premises in an undercover capacity. The purpose of the visit was in order to identify persons from whom the Agents purchased drugs. The persons who previously sold substances suspected to be illegal drugs to the undercover agents on the licensed premises were placed under arrest. The disposition of those charges is unknown. Petitioner presented no evidence, other than uncorroborated hearsay, that a controlled substance was sold or purchased within the licensed premises on July 13, 20, 27; August 3, 10, 12, 18, 24, 25, 31; or September 9, 1999. No evidence was presented that Kert Reynolds, Brue W. Lear, Jr., or "Patrick" were agents, servants, or employees of Respondent. In regard to the incident on July 27, 1999, involving a transaction with the bartender, Stewart w. Bush, Respondent proved that Stewart Bush was an employee of longstanding who had acknowledged in writing Respondent's no-drug policy upon being hired in 1990 and who had been repeatedly trained at four-month intervals in the responsible vendor training program. He was dismissed immediately upon Respondent's learning of the charge against him. Respondent proved evidence that Stewart Bush upon his initial hiring in 1990 signed a statement acknowledging that he read and understood the policies of Respondent including that as a condition of employment: 5. I will not possess, use, sell, or allow the usage or sale of any unlawful drug in my place of employment. If I witness or suspect any such unlawful activity, I will immediately notify my supervisor. Stewart Bush further received responsible vendor training, which included the subject of controlled substances and on which he received a passing score, in September of 1998. At such time he again executed a similar acknowledgment of Respondent's no-drug policy. He had also been certified as having completed a responsible vendor training program effective May 5, 1993. Further, the testimony of Respondent's president, Denny Johns, proved that Stewart Bush had received constant responsible vendor training approximately every four months concerning the prohibition against sale of tobacco products or alcohol to minors and the no drug policy, which all employees and managers were required to attend. Respondent, since at least 1993, through and including the period covered by the Administrative Action, has placed itself within the ambit of Florida's Responsible Vendor Act, Section 561.701, Florida Statutes, by providing the Act's requisite training to its staff and obtaining the Act's concomitant protections. Although Petitioner's Agents did not observe the events described in these facts, the evidence indicates that Respondent employed security guards, issued trespass warnings, utilized off-duty Orlando Police Department officers for security and actively endeavored to police its establishment to prevent unlawful sales of controlled substances. Respondent was not lacking in due diligence in the management and supervision of its licensed premises.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, It is RECOMMENDED that the Secretary enter a final order dismissing the Administrative Action in this matter. DONE AND ENTERED this 31st day of August, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 31st day of August, 2001. COPIES FURNISHED: Capt. German Garzon Department of Business and Professional Regulation 400 West Robinson Street, Room 709 North Tower, Hurston Building Orlando, Florida 32801 Kenneth W. Gieseking, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Harold F. X. Purnell, Esquire Rutledge, Ecenia, Underwood, Purnell & Hoffman Post Office Box 551 Tallahassee, Florida 32302-0551 Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Respondent currently holds alcoholic beverage license number 69-007441, series 2COP, for the licensed premises known as Javis Pub located at 600 North Highway 17-92, Longwood, Seminole County, Florida. At all material times, Jose Javier Zudaire (Javi) was the sole owner and officer of Respondent. At all material times, a person known only by the name of John was employed by Respondent as a bartender. On April 7, 1988, Sandra D. Owens, who was employed by the Seminole County Narcotic Unit, entered Javis Pub in an undercover capacity with a confidential informant who had advised the law enforcement authorities that illicit drugs were being sold in the bar. At the time, the informant was negotiating with Javi for the purchase of the bar. The informant introduced Ms. Owens to Javi. In the ensuing conversation, Javi told Ms. Owens that he had not gotten home until 7:00 a.m. that day because he had been out taking cocaine the prior evening. Ms. Owens complained that cocaine was hard to come by. Javi began to discuss the quality of the cocaine that he could obtain and the prices for which he could obtain it. Javi then offered to get Ms. Owens a free sample of his cocaine, but she stated that she would rather purchase it. They then agreed that she would return the next evening and purchase 1/8 ounce for $200 from John, who was the bartender. When Ms. Owens returned the next evening, John was not there. Javi and Ms. Owens began conversing. After a short time, Javi picked up a pack of cigarettes that Ms. Owens had laid down on the bar, emptied it of most of the cigarettes, took the pack into a back room behind the bar, and returned with the pack, into which he had placed 1/8 ounce of cocaine. Javi then placed the pack in front of Ms. Owens, who placed two one-hundred dollar bills under a nearby ashtray. Javi completed the transaction by taking the two bills. Before Ms. Owens left the bar, Javi assured her that she would like the cocaine. She left the bar, but returned later in the evening to thank Javi and tell him that she would be leaving town for a week or so. During the next couple of weeks, Ms. Owens spoke by telephone with Javi and John about seven times. Although she in fact had remained in town, she told them that she was visiting friends in Houston and gave them a telephone number in Houston to call her. Through an arrangement with the Houston police department, they took the calls on a private line and forwarded all messages to Ms. Owens. On the evening of April 21, 1988, Ms. Owens returned to the bar. She met with John, who told her that he would sell her an ounce of cocaine if she returned to the bar at midnight. Ms. Owens returned to the bar at 11:55 p.m. on April 21. John was waiting outside for her. Together, they entered the bar where they were joined by Javi. Javi asked John if he was going to take care of Ms. Owens. Javi then left the bar and John went to the back room behind the bar and returned with a white envelope containing cocaine. He removed the envelope from a back pocket and Ms. Owens asked him if he wanted to complete the transaction out in the open. He told her not to worry about "my people." While seated at the bar in good lighting with other persons present, Ms. Owens counted out, onto the surface of the bar, the $1300 cash that they had agreed upon and John gave her the cocaine. Shortly after purchasing the cocaine, Javi returned to the bar, asked Ms. Owens if John had taken care of her, and assured her that she would like the cocaine. Petitioner's policy calls for the revocation of an alcoholic beverage license whenever illegal drug sales repeatedly take place in the licensed premises, the premises are declared a public nuisance, and the premises are a place of dealing, storing, selling, or using illegal drugs; the licensee sells a controlled substance one or more times; or an employee makes three or more sales of a controlled substance on the licensed premises and in an open manner so as to indicate culpable negligence on the part of the licensee in the management of the premises.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Section 561.29(1)(a) and (c) Florida Statutes, and revoking the subject alcoholic beverages license. DONE and RECOMMENDED this 17th day of October, 1988, in Tallahassee, Florida ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1987. APPENDIX TO RECOMMENDED ORDER Treatment Accorded Petitioner's Proposed Findings 1-2. Adopted. 3. First and last sentences adopted. Remainder rejected as unsupported by the evidence. 4-6 . Adopted. 7. Rejected as legal argument. 8-12. Adopted. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Richard A. Colgrove, Esquire Firm of Thomas C. Greene, Esquire 212 North Park Avenue Post Office Box 695 Sanford, Florida 32772-0693 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1007 Joseph A. Sole, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
The Issue The issues presented for resolution in this proceeding concern whether the Respondent's alcoholic beverage licensure should be subjected to disciplinary sanctions because of alleged misconduct involving the sale and use of controlled substances on a licensed premises, more specifically delineated in the Notice to Show Cause filed in this proceeding by Petitioner.
Findings Of Fact The Respondent, JIMMIE WILLIAMS, owns the club or tavern known as the "Copa Cabana", doing business at 2901 North Haynes Street, Pensacola, Florida. That establishment holds a Series 2-COP alcoholic beverage license number 27- 00239, authorizing the sale of beer and wine on the premises. The Respondent is the sole owner of the Copa Cabana. Burnett Patterson, at times pertinent hereto, during September 1988 through February 1989, was a patrol deputy with the Okaloosa County Sheriff's Department. While a deputy with that Department, he engaged in special drug investigations. During the course of this employment, he became involved in numerous undercover operations designed to curb traffic and use of controlled substances. He thus became familiar with the appearance, properties and paraphernalia associated with crack cocaine and marijuana. On September 2, 1988, he met with Law Enforcement Investigator, Paul Blackmon, of the DABT. Investigator Blackmon asked Deputy Patterson to assist in a drug investigation of the Copa Cabana. At approximately 8:00 p.m. on that date, Deputy Patterson entered the Copa Cabana licensed premises in an undercover capacity. While in the licensed premises, inside the Copa Cabana, he observed patrons of that establishment openly smoking marijuana and crack cocaine. He observed one black male patron walking around inside the licensed premises holding a piece of crack cocaine visibly in his front teeth in order to advertise it for sale. This activity was done in the presence of the licensee/Respondent, Jimmie Williams. The undercover agent further observed numerous persons selling marijuana and cocaine inside, as well as outside the licensed premises. These persons made no attempt to conceal their illegal actions. It has not been demonstrated who owned or controlled the grounds immediately outside the door of the licensed premises. On September 16, 1988, at approximately 8:15 p.m., Deputy Patterson again entered the licensed premised in an undercover capacity. Upon entering the licensed premises, he observed 15 to 20 patrons inside and observed the Respondent working at the bar. Deputy Patterson went to the restroom inside the Copa Cabana and observed two black males cutting crack cocaine into small pieces, mixing them with marijuana, and rolling the resulting material into cigarettes or "joints" for smoking. Deputy Patterson purchased one piece of crack cocaine for $20.00 from a patron known as William Barker while inside the restroom. While inside the licensed premises, Deputy Patterson observed patrons openly smoking crack cocaine and marijuana. He was approached by other patrons, who asked if he wanted to purchase controlled substances. The substance purchased was analyzed and tested positive for cocaine. On September 19, 1988, at approximately 7:40 p.m., Deputy Patterson again entered the licensed premises in an undercover capacity. Upon entering, he made contact with patron, Jerry Green, who was accompanied by a patron known as "Killer." Deputy Patterson purchased one "baggie" of marijuana for $10.00 from "Killer." This transaction, along with the open smoking of marijuana, took place in the presence of the Respondent. Deputy Patterson also observed numerous controlled substance transactions taking place outside and near the entrance of the licensed premises. The substance he purchased was analyzed and proved to be marijuana. On September 24, 1988, at approximately 3:30 p.m., Deputy Patterson again entered the license's premises. He observed several patrons entering and exiting the restroom area. He entered the restroom and made contact with patron, John Butler. John Butler asked Deputy Patterson what he was looking for, and the Deputy replied "crack." Deputy Patterson was sold one piece of crack cocaine by John Butler and another unknown patron for $20.00. Deputy Patterson observed several patrons entering the restroom and purchasing crack cocaine. Jimmie Williams was inside the licensed premises during the time Deputy Patterson was present and making these observations. Deputy Patterson further observed several narcotic transactions outside the front entrance of the licensed premised. The substance purchased by Deputy Patterson was analyzed and tested as positive for the presence of cocaine. On October 8, 1988, at approximately 4:10 p.m., Deputy Patterson again entered the licensed premises in an undercover capacity. Prior to entering, he was asked by several patrons loitering near the entrance of the Copa Cabana if he wanted to purchase controlled substances. Once inside the licensed premises, he entered the restroom, where he made contact with patron, Calvin Black. Deputy Patterson purchased one piece of crack cocaine from Calvin Black for $20.00. Deputy Patterson then departed the restroom and observed patrons openly smoking marijuana while playing pool. Deputy Patterson contacted patron, Terry Boutwell, by the pool table. Terry Boutwell sold Deputy Patterson one baggie of marijuana for $10.00 at that location. Upon leaving the building, Deputy Patterson was again approached by persons outside the entrance to the Copa Cabana and asked if he wanted to purchase controlled substances. During all of the aforementioned events, including the sale of marijuana and the smoking of marijuana in the vicinity of the pool table, the Respondent was inside the licensed premises. Both the substance purchased from Calvin Black and that purchased from' Terry Boutwell were subsequently analyzed and proved to be controlled substances. On January 28, 1989, at approximately 5:00 p.m, a confidential informant, Alonzo Blackman, was designated to conduct a controlled substance purchase inside the licensed premises from the licensee, Jimmie Williams. The confidential informant was given specific instructions to buy only from Williams. Prior to departing the Sheriff's Department, he was thoroughly searched. It was determined that he had no controlled substances or money on his person. He was provided with a concealed, wireless voice transmitter. He was also given $50.00 of the Sheriff's Department's money for the purpose of purchasing crack cocaine. Subsequently, the confidential informant departed the Sheriff's Department with Deputy Gwen Salter. The pair was followed and traced by Escambia County Sheriff's Deputy Mark Shaeffer. Deputy Shaeffer was equipped with a radio receiver and monitored transmissions emitted from Alonzo Blackman's transmitter. Deputy Shaeffer observed Alonzo Blackman park behind the Copa Cabana to the rear of the building on a back street and depart Deputy Salter's vehicle. He observed Alonzo Blackman walk through the wooded area behind the Copa Cabana and disappear around the side of the building, moving toward the front of the Copa Cabana building. After Alonzo Blackman was out of sight around the corner of the Copa Cabana building, Deputy Shaeffer could hear normal outdoor sounds, as well as Alonzo Blackman's footsteps through the transmitter. Shortly thereafter, he heard the sound of a juke box playing and loud voices consistent with the noises one would expect when a person entered a bar. Within two or three minutes thereafter, Deputy Schaeffer observed Alonzo Blackman come back in sight around the corner of the licensed premises and enter Deputy Salter's vehicle. Deputy Schaeffer followed the two back to the Sheriff's Department, keeping Alonzo Blackman in visual sight the entire time. When Alonzo Blackman and Deputy Salter returned to the Sheriff's Department, Alonzo Blackman presented Deputy Schaeffer with a slab of rock cocaine and no longer had the $50.00 given to him by the Sheriff's Department. Subsequently, the substance purchased was analyzed and tested positive for the presence of cocaine. The Petitioner adduced a hearsay statement from Deputy Schaeffer to the effect that Alonzo Blackman had told him that he had purchased the rock cocaine in question from the Respondent. That statement was not admitted into evidence since it was not corroborative hearsay for the purposes of Section 120.58, Florida Statutes. The hearsay statement concerning the alleged purchase from the Respondent is not corroborative of the testimony concerning the other independent events in question in this proceeding involving the sale and use of controlled substances on the licensed premises by others. The only testimony or evidence directly concerning the alleged purchase of cocaine from the Respondent was that related by confidential informant, Blackman, to Deputy Schaeffer. The only other evidence purporting to show that the Respondent sold a slab of rock cocaine was the testimony by Deputy Schaeffer revealing what he saw and heard over his radio receiver. All he saw was Alonzo Blackman passing around the side of the building aid later returning around the back corner of the building. He heard his footsteps as he passed around and presumably entered the building, judging from the change in sounds received. There was no evidence that any voices or other noises transmitted to Deputy Schaeffer's listening station consisted of the actual drug transaction and specifically that any of the voices or sounds he might have heard were those of the Respondent in conducting that transaction. Since Deputy Schaeffer's testimony, itself, does not implicate the Respondent in selling the drug, the hearsay statement of the confidential informant, Alonzo Blackman, who could not be located at the time of the hearing, cannot be admissible corroborative hearsay. Thus, it was not established that on this occasion, the slab of rock cocaine was actually purchased from the Respondent. On February 8, 1989, at approximately 5:00 p.m., Alonzo Blackman was again designated to conduct a controlled substance purchase inside the Copa Cabana from the Respondent. He was given the same specific instructions, and Deputy Schaeffer made the same visual and auditory observations as he had with regard to the alleged transaction of January 28, 989. The same factual findings apply, and are made, with regard to this transaction as were made above concerning the January 28, 1989 transaction. The alleged fact that the purchase was made from Jimmie Williams was again predicated on the hearsay statement of Blackman, which was not corroborative and was uncorroborated. It cannot be used to support a finding that the Respondent sold the cocaine in question. On February 7, 1989, at approximately 8:00 p.m., Escambia County Investigators, Tyron Wicks, Melvin Possey and J. Johnson, conducted a "routine drug sweep" of the Copa Cabana. This type of operation was a routine matter for Investigator Wicks in the six months prior to February 7, 1989. Upon entering the licensed premises, Investigator Wicks went directly to the men's restroom where he observed four patrons having a conversation while looking into a paper bag. Investigator Wicks seized the paper bag which contained nine plastic baggies of marijuana ready for distribution and charged him with possession of 20 grams of marijuana with the intent to distribute. Investigator Wicks is familiar with the smell of marijuana smoke; and during "drug sweeps" conducted in the licensed premises, estimated to be 20 or 30 such operations for the previous six months, he smelled such smoke in the licensed premises on a number of occasions. On these occasions, he had also found marijuana and crack and razor blades, as well as pipes and cans used for smoking crack, on the floor of the licensed premises. He has seen people buy drugs at the Copa Cabana while he has been present there with the Sheriff's Department Narcotics Unit during the years 1988 and 1989. Sergeant Bobby Jackson of the Narcotics Division of the Escambia County Sheriff's Department has bean a law enforcement officer for approximately 14 years. He is familiar with the smell and appearance of marijuana and crack cocaine. He has been involved in 20 to 30 raids at the licensed premises. On at least 15 occasions, officers in his party have found controlled substances. The Respondent was always present when these raids took place. On many of the raids, Sergeant Jackson smelled the odor of marijuana smoke in the licensed premises. He is certain that the Respondent was present on these occasions. During these raids, he has observed marijuana cigarette butts on the floor of the licensed premises and has often found people inside bagging marijuana. Prior to the suspension of the beverage license on February 10, 1989, Sergeant Jackson received quite a few complaints about the licensed premises; and each time he visited it, he would observe a great number of people standing around inside and outside the licensed premises. It has been quite different since the suspension of the license and the shutdown of operations at the Copa Cabana. Sergeant Jackson has received very few complaints since February 10, 1989. Sergeant Jackson, however, never received any complaints from the Respondent about drug use in the establishment. John Green is a black male, whose mother lives approximately a block from the licensed premises. He has been a friend of the Respondent for approximately 15 years. During the period of January and February of 1989, he patronized the licensed premises six days a week, every week. He would go there after work and stay until approximately 9:00 p.m. He states that he always saw the Respondent behind the bar. John Green stated that the bar was a self- service bar where patrons could get beer out of the cooler in front of the bar and pay for it at the counter. He maintained that he had never seen Deputy Patterson and that, in his opinion, marijuana smoke smells just like Kool cigarette smoke. He drinks beer every night, including the times when he patronized the Copa Cabana. He testified under oath that he had never seen anyone use drugs in the licensed premises and that on one occasion, however, he had thrown someone out of the licensed premises for using drugs. Dorothy Mouton lives approximately six miles from the Copa Cabana and works at Washington Junior High School in an administrative capacity. She knows the Respondent, who also works there as a coach. She, in the past, has stopped at the Copa Cabana to eat a snack and converse the During the period of August of 1988 to February of 1989, she went to the Copa Cabana every week. According to Ms. Mouton, the Respondent had a stool behind the bar and would get beer from the cooler for patrons who requested beer. She claimed that she was able, by her experience, to identify marijuana smoke and crack cocaine. She maintained that she never saw any drug of either sort in the licensed premises She also testified that it was her habit to depart the licensed premises every day between 6:00 p.m. and 6:30 p.m. Chris Dortch is a 27 year old black male who has known the Respondent for a long period of time. He helped the Respondent operate the Copa Cabana when he first established it. He lives approximately four blocks from the Copa Cabana. He goes to the licensed premises every day and sometimes stays until it closes. He has always observed the Respondent staying behind the bar counter while he is on duty. This witness also claimed under oath that he had never seen any cocaine or marijuana smoked in the licensed premises and had never smelled any marijuana smoke within the licensed premises. He testified that he saw police officers in the licensed premises at least ten times, but never observed any arrests. Elizabeth Freeman lives around the corner from the licensed premises and has lived there approximately four years. During the period of September of 1988 to February 10, 1989, she went to the club every day for about an hour where she would talk to Williams and play video games. She claimed that she observed Williams, on occasion, move from behind the counter into the public area of the tavern. She also testified that she has never seen any indications of drug use on the premises. Shirley Washington was in the habit of going to the club during the period of August of 1988 to February of 1989 at approximately 4:30 p.m. and generally would stay until closing, usually around 9:00 p.m. She was a member of a social group called "The Copa Cabana Queens." It was her habit, during this period of time, to drink four to five six-packs of beer each day. She is familiar with the smell of crack cocaine smoke and marijuana smoke. She testified that she had never observed any marijuana or crack cocaine within the licensed premises. She has been a friend of the Respondent for approximately 25 years. The Respondent is an instructor and coach with the Escambia County School Board. He has owned the Copa Cabana for 15 years. It is a recreation center, lounge, notion store and meeting place. He also has live entertainment and occasionally, a fashion show. His license authorizes him to sell and serve beer and wine. He is the only employee, but Ms. Washington minds the bar for him when he is temporarily away from it (in the restroom, etc.). He testified that he never observed Deputy Patterson until the day of the hearing. He testified that no drugs had ever been in the licensed premises and that he had never dealt in drugs. The testimony of Deputies Patterson and Schaeffer, Investigator Wicks, Sergeant Jackson, and Law Enforcement Investigator Ralph Kelly, to the effect that controlled substances were openly and notoriously used and sold on the premises in question, conflicts in a general sense with the testimony of Respondent's witnesses to the effect that they never saw any marijuana or crack cocaine on the premises or smelled any and so forth. This conflict in the testimony of the witnesses of the Petitioner and Respondent must be resolved by determining which are more credible. Determining the credibility of witnesses is an important and exclusive task of the fact finder Guidelines for resolving credibility issues are provided in Volume 24, Florida Jurisprudence 2nd, Sections 688-696, and grand jury instruction 2.04 on page 779 of West's Florida Criminal Laws and Rules (1989), which sets forth areas to consider in determining whether a witness is credible. Those areas include: whether the witness had an opportunity to observe and know the things about which he testifies' whether his memory seemed accurate; whether he was straight forward in his answers; whether he was interested in the result of the case at issue; whether it is consistent with other testimony and evidence adduced; and whether he has, at some different time, made an inconsistent statement from the testimony given before the court. Firstly, concerning the testimony of John Green, it can be seen that he testified to having patronized the establishment during the period of January and February of 1989 and purported never to have seen Deputy Patterson. This is not surprising since there was no testimony by the Deputy that he was in the licensed premises during those two months. Therefore, John Green would have had no opportunity to observe Deputy Patterson at the time he frequented the licensed the premises. John Green also testified that he drank beer in the licensed premises every night and, thus, could quite likely have suffered a diminution of his powers of observation as a result of drinking beer. Dorothy Mouton maintained that she went to the Copa Cabana every week during the period of August of 1988 to February of 1989. She stated that she went there between the time she got off work until 6:00 p.m. or 6:30 p.m. Her time in the licensed premises was, therefore, very limited; and everything alleged by the Petitioner's witnesses could easily have occurred without her being on the licensed premises to observe the alleged violations. Elizabeth Freeman stated that she went to the Copa Cabana for about an hour each day during the time alleged in the Notice to Show Cause. If her testimony that she saw no drugs used on the licensed premises is accepted as true that still does not resolve the problem that the amount of time that she spent on the licensed premises was quite limited. The violations testified to by the Petitioner's witnesses could have occurred during her absence from the licensed premises. Shirley Washington claimed that she was at the Copa Cabana every day from 4:30 p.m. to approximately 9:00 p.m. during the time pertinent to the charges in the Notice to Show Cause. She also testified that she would drink four to five six-packs of beer every day. That could easily diminish her powers of observation and, no doubt, did. None of the witnesses for the Respondent could describe the events of any particular day alleged in the Notice to Show Cause. Their testimony was rather of a very general nature and not date or time-specific. On the other hand, the Petitioner's witnesses were trained law enforcement officers and observers, who kept meticulous records of their participation in the events in question and who gave detailed testimony as to the time, date and circumstances of each event that took place on the licensed premises and later became the subject of the charges in the Notice to Show Cause. There is no evidence that any of the law enforcement officers were drinking or otherwise had impaired powers of observation during the pertinent times. The Respondent's witnesses' memories and resulting testimonies appeared very general at best. Concerning the issue of whether the witnesses might have some interest in how the case should be resolved, it should be pointed out that the Respondent's witnesses were all old friends of the Respondent. John Green has been a friend of the Respondent for 15 years. Dorothy Mouton is a co-worker of the Respondent's at Washington Junior High School and must be counted as a friend of the Respondent. Chris Dortch has apparently known the Respondent since he was a small child. Elizabeth Freeman has been his friend and customer for the past four years. Shirley Washington has been the Respondent's friend for 25 years. All of these people are not only friends of the Respondent, but apparently considered the Copa Cabana a sort of favorite resort or meeting place away from home and clearly wanted to continue the benefit of the close friendly relationship. The Petitioner's witnesses, on the other hand, were professional police officers, none of whom had any relationship with the Respondent or the Copa Cabana. There was no evidence that any of the officers were somehow targeting the Respondent for special prosecution efforts. It rather appears that the events which came to light, as described in their testimony and the Notice to Show Cause, were discovered through routine police operations. Further, Deputy Patterson testified concerning the issue of whether the Respondent exhibited proper diligence in supervising and maintaining surveillance over the licensed premises. He stated that when the Respondent sold' a beer, he would do so by receiving the money for the beer and then moving outside of the bar to the cooler, kept in the room near the bar, to obtain the beer and give it to the customer. The Respondent's witnesses, however, addressed this matter with differing testimony. John Green, stated that customers would get the beer themselves from the cooler and then go to the counter to pay for it. Dorothy Mouton stated that the Respondent would get the beer from the cooler himself, which required him to walk outside the area behind the bar into the area of the room, in which the bar was located, to the cooler, which would allow him to view the rear room and restroom area of the licensed premises. Chris Dortch testified that the Respondent stayed behind the counter during beer sales. Elizabeth Freeman stated that she had observed the Respondent move from behind the counter into the open area of the licensed premises in the act of getting a beer for a customer. Thus, the Respondent's witnesses' testimony as to this question was inconsistent in terms of rebutting the testimony of Deputy Patterson as to the manner in which beverages were sold by the Respondent, as that relates to the Respondent's physical position in the licensed premises and ability to see what activities transpired in the rear room, the area of the restroom entrance and the pool table. In any event, the foregoing analysis reveals that the testimony of the Petitioner's witnesses is more credible. It is concluded that that of the Respondent's witness, and the Respondent himself, show a lack of knowledge, clear memory, and consistency, at best, without reaching the question of whether any of the Respondent's witnesses deliberately falsified their testimony. Accordingly, the testimony of the Petitioner's witnesses, to the extent that it conflicts with that of the Respondent's witnesses, is accepted as more credible.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the competent, credible evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Respondent, JIMMIE WILLIAMS, d/b/a Copa Cabana, be found guilty of the offenses set forth in Counts II and III of the Notice to Show Cause. It is further recommended that Count I of the Notice to Show Cause be dismissed. It is further recommended that the alcoholic beverage license held by the Respondent be revoked and that a civil penalty of $2,000.00 be assessed against the Respondent. DONE AND ENTERED this 26th day of January, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-719 Petitioner's Proposed Findings of Fact 1.-6. Accepted. Accepted, but not as probative of the ultimate fact of the sale of rock cocaine by the Respondent, himself. Accepted, but not as probative of the ultimate fact of the sale of rock cocaine by the Respondent, himself. Accepted. Accepted. Accepted, but not as probative of any material issue presented for adjudication. 12.-16. Accepted, in that these proposed findings of fact describe the testimony of these witnesses. However, these witnesses have been determined to be not credible. 17. Accepted, to the extent that it is arc accurate description of the Respondent's testimony. Respondent's Proposed Findings of Fact 1.-4. Accepted. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and as not Entirely in accordance with the clear and convincing evidence. 7.-9. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and hot in accordance with the clear and convincing evidence. Rejected, as not materially dispositive of the issues presented. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and not, itself, materially dispositive. Rejected, as not, .in itself, materially dispositive. Accepted, in part, but the evidence in this case does not delineate the extent of the premises owned or controlled by the Respondent, and to that extent, it is rejected. Rejected, as subordinate to tide Hearing Officer's findings of fact on the subject matter and as to it's purported material import. Rejected, as to its material import in relation to the remainder of Deputy Patterson's testimony. Rejected, as contrary to the clear and convincing evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and not in accordance with the clear and convincing evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and not being an accurate reflection of the overall sense of the witnesses' testimonies. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as being contrary to the greater weight of the clear and convincing evidence. Accepted, but not, itself, dispositive of material issues presented, except to the extent that it has not been proven that the Respondent, himself, offered any drugs for sale. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and as not being, itself, dispositive of material issues presented. Rejected, as immaterial. Even if this is true, it does not overcome proof that the Copa Cabana club's operations constitute a nuisance. COPIES FURNISHED: Harry Hooper, Esq. Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Leo A. Thomas, Esq. Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. P.O. Box 12308 Pensacola, FL 32581 Leonard Ivey, Director Department Of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000
The Issue This is a license discipline case in which the Division of Alcoholic Beverages and Tobacco seeks to suspend, revoke, and otherwise take disciplinary action against the Respondent and its license on the basis of allegations that the Respondent has violated Section 561.29(1)(a), Florida Statutes, by permitting patrons to engage in illegal activities on the licensed premises and by allowing the licensed premises to be used for the illegal keeping, selling, or delivery of controlled substances. The Respondent contends that no disciplinary action should be taken because the Respondent has qualified as a "responsible vendor," and has taken reasonable steps to attempt to prevent the conduct complained of in the Notice To Show Cause.
Findings Of Fact At all times relevant and material to this proceeding, a corporation named 3673 Bird, Inc. (hereinafter referred to as "the Respondent corporation"), has been the holder of alcoholic beverage license number 23-01224, series 4-COP, for licensed premises knows as Uncle Charlie's, which premises are located at 3673 Bird Road, Miami, Dade County, Florida. The Respondent is owned by Robert Sloate, who is also the sole officer of the Respondent corporation. Mr. Sloate does not take an active part in the day-to-day management of the licensed premises. Mr. Sloate makes only rare or occasional visits to the licensed premises. During November of 1991 and during the first few days of December of 1991, Mr. Sloate was hardly ever on the licensed premises. Mr. Sloate did not have personal knowledge of the events described in Paragraphs 5, 6, and 7 of these Findings of Fact. The business of the licensed premises is managed by a group of four managers. The Respondent corporation has a total of twenty-six employees, including the four managers. The Respondent corporation has performed the actions necessary to qualify as a "responsible vendor" within the meaning of Section 561.705, Florida Statutes, as amended by Chapter 91-60, Laws of Florida. 1/ Those actions include training and instruction sessions for managers and employees, meetings of employees, and the posting of signs to discourage underage sales and illegal activity involving controlled substances. The licensed premises were also equipped with TV cameras that cover both doors, the front bar, and the back bar. However, the TV cameras do not make a tape recording of what they cover, and there is no evidence that the TV monitors are watched by employees of the Respondent corporation on any regular basis. During the course of an undercover investigation that began on or about November 13, 1991, and continued until the licensed premises were raided on December 6, 1991, the following transactions involving controlled substances took place within the licensed premises: On or about November 14, 1991, a patron known as Mark sold two baggies, each containing approximately one-half gram of cocaine, to a confidential informant who was cooperating with the undercover investigation. 2/ On or about November 14, 1991, a patron known as Gus sold cocaine to a confidential informant who was cooperating with the undercover investigation. On or about November 14, 1991, a patron known as Mark sold cocaine to Detective Bales. (d) On or about to Detective Rivera. November 15, 1991, a patron known as Sergio sold cocaine (e) On or about Agent Lopez. November 15, 1991, a patron known as Clint sold cocaine to (f) On or about to Detective Bales. November 15, 1991, a patron known as Sergio sold cocaine (g) On or about Detective Bales. November 15, 1991, a patron known as Mark sold cocaine to (h) On or about Detective Rivera. November 15, 1991, a patron known as Mike sold cocaine to (i) On or about to Agent Lopez. November 15, 1991, a patron known as Sergio sold cocaine (j) On or about November 15, 1991, a patron known as Mike sold cocaine to Detective Fernandez. On or about November 21, 1991, a patron known as Sergio sold cocaine to Detective Bales. On or about November 21, 1991, a patron known as Sergio sold cocaine to a confidential informant who was cooperating with the undercover investigation. On or about November 22, 1991, a patron known as Sergio sold cocaine to Agent Lopez. Or or about November 22, 1991, a patron known as Wesley sold cocaine to Detective Bales. On or about November 22, 1991, a patron known as David sold cocaine to a confidential informant who was cooperating with the undercover investigation. On or about November 22, 1991, a patron known as Clint sold cocaine to Agent Lopez. On or about December 4, 1991, a patron known as Clint sold cocaine to Agent Lopez. On or about December 4, 1991, a patron known as Charles Garcia sold cocaine to Detectives Villanueva and Feria. The vast majority of the drug transactions described in the preceding paragraph were conducted in an open and casual manner, with no effort by either party to conceal the transaction. Most of the drug transactions described above took place when the licensed premises were quite crowded and noisy, which would have made it difficult for some of the transactions to be noticed by employees of the Respondent corporation. However, many of the transactions took place near employees of the Respondent corporation, and from the open nature of the transactions, it should have been obvious to the employees of the Respondent corporation what was going on. The flagrant nature of the illegal drug transactions taking place in the licensed premises during the period of the undercover investigation is illustrated by the following: The patron Sergio, who made several sales of cocaine to the undercover police officers and to the confidential informant, was so flagrant about his illegal activities that he carried a tambourine with him and would shake the tambourine to advise all who were interested that he had cocaine available for sale. At least one of the managers was aware of Sergio's tambourine shaking, because he testified that it annoyed him. It was obvious to anyone who troubled to look that Sergio was dealing in something, because after he shook his tambourine there would be several people who would approach him, hand him money, and receive from him small plastic baggies containing white powder. Sergio's cocaine sale activity was so casual that on at least one occasion he took a twenty dollar bill and delivered a baggie containing cocaine without even being specifically asked for cocaine. The casual nature of Sergio's activity is also indicated by the fact that he was not concerned about being asked for cocaine in the presence of two other people, and he carried numerous baggies of cocaine in his pockets. The patron Charles Garcia attempted to promote the ingestion of cocaine inside the licensed premises after he delivered cocaine to Detectives Villanueve and Feria. The undercover police officers observed numerous transactions during which a patron would approach another patron, deliver money to the other patron, and then receive a small plastic baggie from the person who took the money. These observations included the observation of numerous such transactions involving Sergio (the tambourine man) and several involving the patron known as Mike. On one occasion during the investigation, Detective Rivera observed a patron exiting the restroom with white powder beneath his nose. When Detectives Villanueva and Fiera were purchasing cocaine from Charles Garcia on December 4, 1991, a patron named Ray asked Detective Fiera to join him in the restroom. In the restroom, Ray ingested a white powder that appeared to be cocaine in front of both Detective Fiera and the restroom attendant. All of the drug transactions described in Paragraphs 5, 6, and 7 of these Findings of Fact took place within the licensed premises during business hours, when employees and patrons were present on the licensed premises. None of the employees ever called the police or asked any of the parties to the drug transactions to leave the licensed premises. The Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, and the Metro-Dade Police Department executed a raid on December 6, 1991, at the licensed premises. After the raid was completed, thirty-four packets of unclaimed cocaine were found on the floor, as were several pills and several packets of marijuana. An unclaimed pen knife with cocaine on the tip was also found. On the night of the raid, one of the bartenders tossed a baggie of cocaine over the bar. That bartender was arrested for possession of cocaine. On the night of the raid, Sergio was found to be in possession of three baggies of cocaine, as well as other controlled substances. The investigative expenses incurred in the course of the undercover investigation of the Respondent corporation's premises totaled one thousand one hundred forty-eight dollars ($1,148.00). In brief summary, the vast majority of the drug transactions described in Paragraphs 5, 6, and 7 of these Findings of Fact, took place in plain view. The open exchanges of drugs and money, the casualness with which those selling drugs on the licensed premises went about their business, and the frequency of the drug transactions, all demonstrate a pattern of flagrant, persistent, repeated, and recurring violations. The nature and frequency of the subject drug transactions were such that they would have been noticed by a reasonably diligent licensee.
Recommendation On the basis of all of the foregoing, it is recommended that the Division of Alcoholic Beverages issue a final order in this case revoking the Respondent corporation's alcoholic beverage license number 23-01224, series 4-COP, for the premises located at 3763 Bird Road, Miami, Dade County, Florida, and imposing an administrative fine in the total amount of $18,000.00. RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of December 1991. MICHAEL M. PARRISH 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 24th day of December 1991.
Findings Of Fact Respondent, Alton Beverages, Inc., trading as Mayflower Lounge, holds Division of Alcoholic Beverages and Tobacco License Number 23-2043, Series 4- COP. Respondent conducts its business pursuant to said license at 17IG Alton Road, Miami Beach, Dade County, Florida. At all times material hereto Sam Rosen was the sole corporate officer and shareholder of Alton Beverages, Inc. In addition, at all times material to this proceeding, Robert L. Pyle was the night manager for Respondent's licensed premises at the aforementioned address. During the time periods alleged in the Notice to Show Cause, that is, from February 21, 1981 through March 7, 1981, Dottie Turner, Laura Kimberly, Mona Castro, Sandra Timmsen and Deborah Sutcliff were dancers at the licensed premises, and were "agents" of Respondent. In the early morning hours of February 21, 1981, an undercover officer in Petitioner's employ was introduced by a confidential informant to Robert L. Pyle, the night manager on duty at Respondent's licensed premises. Shortly after that introduction, the undercover officer purchased a quantity of cocaine from Pyle for $50.00, the sale and delivery of which substance took place on the licensed premises, while Pyle and the officer were seated at a table in the lounge portion of the premises. During the evening hours of February 21, 1981, Petitioner's undercover officer returned to the licensed premises. While seated at a table with Dottie Turner, a topless dancer in the employ of Respondent, Turner mentioned to the undercover officer that she was going outside "to smoke a joint." Thereupon, the undercover officer asked if he could purchase a "joint" from her, and she advised that she would "roll one" for him for one dollar. Thereafter, Turner went outside the licensed premises, subsequently returned to the table, and gave one marijuana cigarette to the undercover officer in exchange for one dollar. Later on the evening of February 21, 1981, the undercover officer made a second purchase of cocaine for $50.00 from Pyle, Respondent's night manager. Again, the purchase ant exchange of this cocaine took place on the licensed promises while the officer and Pyle were seated at a table in the bar. While still in the licensed premises on February 21, 1981, the undercover officer asked for, and obtained, a second marijuana cigarette from dancer Dottie Turner at no cost. On February 23, 1981 the undercover officer again returned to the licensed premises where he spoke with Dottie Turner. On this occasion another purchase of a marijuana cigarette for one dollar from Dottie Turner was accomplished, with the negotiation for and delivery of the cigarette occurring on the licensed premises. After delivery of the marijuana cigarette, the undercover officer inquired of Turner concerning the purchase of a larger quantity of marijuana. The undercover officer was advised by Turner that if he would give her the money for an ounce of marijuana she could purchase it for him and bring it to the licensed premises for delivery. When the undercover officer refused to part with the money prior to delivery, Turner advised him that he would have to come to her apartment to make the purchase. Subsequently, on February 25, 1981, the undercover officer went to Turner's apartment, some distance from the licensed premises, and purchased one ounce of marijuana for $30.00. On February 25, 1981, the undercover officer returned to the licensed premises. On this date, he met with Robert L. Pyle, the night manager, and requested to purchase one quarter-ounce of cocaine. While the undercover officer and Pyle were seated in the Manager's office on the licensed premises, Pyle advised the undercover officer that he could arrange the purchase of that amount of cocaine for $500.00. Pyle further advised the undercover officer that he would have to go upstairs to get the cocaine and would return shortly. Thereupon both the undercover officer and Pyle left the Manager's office, and the undercover officer resumed a seat in the lounge portion of the licensed premises. Shortly thereafter, Pyle returned, and, while seated at a table with the undercover officer and Deborah Sutcliff, one of Respondent's topless dancers, exchanged with the undercover officer the one quarter-ounce of cocaine for $500.00 in currency. As previously indicated, the address of the licensed premises is 1716 Alton Road, Miami Beach. This address consists of the first floor of a two- story concrete block structure. The first floor is leased by Respondent from the building owner, Sam Berlin. The second floor of the structure was leased from the building owner by Robert L. Pyle, the night manager, and several of the dancers and other employees of Respondent for use as apartments. At all times material hereto, access to the apartments on the second floor could be had either by way of an exterior stairway in the rear of the building, or through a door in the interior of the licensed premises opening on an interior stairway. This interior door was used frequently by the dancers to access their apartments, and was used by Pyle on at least one of the occasions when the undercover officer purchased cocaine as hereinabove described. The sketch appearing on or attached to Respondent's license does not show the second floor of the two-story structure as being contained within the licensed premises and, indeed, does not show the interior door giving access to the second floor, although the record in this proceeding establishes that the door was present when Petitioner's agent made the sketch of the premises to attach to Respondent's license. There is no showing in this record that the interior door and stairway were ever used by anyone other than persons making their residence on the second floor. The upstairs portion of the building was never used for storage or for any other purpose connected with the operation of the licensed premises. Finally, there is no showing in this record that Respondent bad, or attempted to exercise, any dominion or control over the second floor of the building. On March 7, 1981, pursuant to a search warrant, law enforcement officers, including Petitioner's undercover officer, conducted a raid of the licensed premises. One of Respondent's dancers was found to be in possession of in excess of 10 grams of cocaine in her purse on the licensed premises. In addition, a quantity of marijuana was found near the bar and a yellow change purse containing a cocaine kit and spoon were found in the Manager's office. In the upstairs area where several of Respondent's employees lived, another of Respondent's dancers was found to be in possession of a controlled substance, Diazepam, and a bartender In Respondent's employ was found to be in possession of Diazepam as well as a small quantity of marijuana. Still another dancer was found to be in possession of a quantity of marijuana in her apartment, while Robert Pyle's bedroom in the upstairs area contained Diazepam and assorted narcotics paraphernalia including a cocaine user's kit, knives and scales. In addition, in the general living area of the upstairs, there was assorted narcotics paraphernalia including large heating elements; boxes and plastic jugs and bags containing different cocaine cutting agents such as procaine; an automatic plastic wrapping machine; a large-size scale; test tubes; and two bags containing cocaine. Respondent does not deny that the aforementioned activities occurred, but instead defends against the allegations or the Notice to Show Cause, as amended, by contending that the corporate licensee, through its sole officer and shareholder, Sam Hill Rosen, took every reasonable precaution to guard against such activity occurring on the premises. Respondent contends, Petitioner admits, and the record herein clearly establishes that Mr. Rosen was not "directly involved" nor did he have personal knowledge of the activities occurring on the licensed premises. Respondent asserts that in an attempt to prevent legal activity from occurring on the licensed premises, it posted signs in conspicuous places, such as the dancers' dressing room, and gave written instructions to employees announcing its policy of prohibiting drugs, other than prescription drugs, from being used or sold on the licensed premises. Violation of this employment policy, according to Respondent, resulted, on occasion, in immediate dismissal of employees. Additional Policies allegedly adopted by Respondent to guard against illegal activity included prohibiting dancers from leaving the licensed premises to go outside while they were working, and subjecting all employees to periodic "shakedown searches". There was also some indication in the record that Respondent reserved the right to subject its employees to polygraph tests. Finally, Respondent also asserts that, acting through its principal, Mr. Rosen, the premises was periodically checked while Mr. Pyle was on duty to assure that no violations of law were occurring. Accepting Respondent's representation that the aforementioned policies were established on the premises, the record in this proceeding clearly establishes that to the extent that these policies did exist they were more honored in the breach than in the observance. For example, of those employees of Respondent who were called to testify at the final hearing in this proceeding, none of them had been administered a polygraph examination, none had had their persons or belongings searched while working on the licensed premises, and they had observed Mr. Rosen on the premises during the evening hours at best "infrequently". Mr. Rosen's failure to adequately supervise the licensed premises is corroborated by the fact that on February 23, 1981, when Petitioner's undercover officer was on the licensed premises, Mr. Pyle, the night manager, was off duty, and Mr. Rosen, who managed the licensed premises during other portions of the day, was not present. In addition, on at least one occasion, one of Respondent's dancers observed Pyle on the licensed premises in possession of both cocaine and pep pills, the latter of which, according to Pyle, were used in case ". . . some of the girls came into work and weren't quite up to doing their performance." The record in this proceeding fails to establish that any agent, employee or patron of Respondent was ever observed using illegal drugs or narcotics inside the licensed premises. In addition, the record clearly establishes that Respondent has never previously been cited by and law enforcement agency, regulatory or governmental body for narcotics law violations of any nature. Both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer in this proceeding. To the extent that those findings of fact have not been incorporated in this Recommended Order, they have been rejected as either being irrelevant to the subject matter of this proceeding, or as not having been supported by the evidence.
