Findings Of Fact At all times relevant hereto, Robert Moore, Jr., held a 2 COP License No. 39-00672 issued by the Division of Alcoholic Beverages and Tobacco (DABT) to operate The Cycle Lounge at 2818 D. Osborne Avenue, Tampa, Florida. (Exhibit 1) After receiving a report from the Tampa Police Department that the police believed cocaine was being sold in The Cycle Lounge, DABT brought in Agent Ray Thompson, a certified law enforcement officer and a ten-year employee of the Department, as an undercover agent to investigate the report. Thompson first visited The Cycle Lounge in the late afternoon on November 8, 1989. After seating himself at the bar and ordering a small beer, Thompson asked the bartender (later identified as Barry Atwood) if he knew where Thompson could get a 20 piece of crack. Atwood forthwith called a black male from the game room, who he called Bubba, and told Bubba that Thompson wanted to buy crack. Bubba took four or five "rocks" from his pocket for Thompson to select the one he wanted. Thompson did so and paid Bubba, subsequently known as Russ, $20. The purchase was later analyzed and determined to be cocaine. Thompson was in The Cycle Lounge a total of approximately 15 minutes between the time he entered, ordered and drank a beer, bought crack cocaine and departed. During his first visit, Thompson, a trained drug investigator, observed what appeared to be several transactions involving drugs in the lounge. Thompson returned to The Cycle Lounge on November 9, 1989, in the late afternoon and seated himself at approximately the same place at the bar he had occupied November 8, 1989. Atwood was behind the bar and appeared to be in charge of the operation of the lounge, and Bubba was in the pool room part of the lounge. Thompson again asked Atwood about crack and was told to go into the pool room to see Bubba. Thompson approached Bubba and again purchased crack cocaine for $20. At the time of this purchase, the noise level in the lounge was low as only the television was on, and the purchase was made with no effort at concealment or attempt to prevent others in the lounge from observing the transaction. Again Thompson was in the lounge a short time before departing. On November 10, 1989, at approximately the same time, Thompson returned to The Cycle Lounge; seated himself at the same place at the bar, behind which Atwood was managing the lounge; ordered a beer; and proceeded into the pool room where he bought a "dime" of crack cocaine for $10. At this time, he observed in the lounge a black male Thompson later identified as Robert Moore, Jr., the licensee. Thompson returned to The Cycle Lounge November 11, 1989, took his usual seat at the bar, ordered the usual beer, and was approached by Bubba while seated at the bar with Atwood behind the bar. After open negotiations, Thompson paid Bubba $10 for crack cocaine and shortly thereafter departed the bar. On November 15, 1989, Thompson entered The Cycle Lounge around 7 p.m. at which time he observed more people in the bar than had been there all week long. While going through the parking lot behind the lounge building, several people tried to sell Thompson marijuana and crack. Atwood was just outside the lounge playing checkers and appeared upset. When Thompson entered the lounge, Atwood followed and sold him a beer. Thompson then went into the pool room where he purchased crack cocaine from Bubba from whom he learned that Atwood was upset because other dealers were selling crack to his customers. When Thompson returned to the bar, Atwood asked if he wanted to buy something. Thompson returned to The Cycle Lounge on November 17, 1989, and observed Atwood selling crack cocaine. Shortly after Thompson arrived, the police raided The Cycle Lounge and made some arrests. During the period between August and November 1989, Louis Murray, a confidential informant (CI) employed by the Tampa Police Department, made several visits to The Cycle Lounge in company with another CI. Both CI's were transported to the vicinity of The Cycle Lounge by Tampa police detectives, searched to insure they had no contraband, and given money with which to buy cocaine in The Cycle Lounge. During August, Murray visited The Cycle Lounge twice. The first time, he observed the CI accompanying him purchase crack cocaine from Morris Moore, the brother of Robert Moore. On the second August visit, Murray purchased crack cocaine from Atwood. These purchases were turned over to the police when the CI's left the lounge. Murray, in company with another CI, made two visits to The Cycle Lounge in September and again in October. Each time one of the CI's purchased crack cocaine in the lounge in an overt, unconcealed manner. On at least one occasion Murray saw Robert Moore, Jr., in the lounge while cocaine was being openly sold. All of the buys made by the CI's were in an open area of the lounge, and on each visit they observed what appeared to be other drug transactions. The Tampa Police Department received several complaints about The Cycle Lounge and drug-related traffic to and from this place. Neighbors had complained about this traffic, and the lounge was well known as a place at which crack cocaine could be bought. As such, The Cycle Lounge was a public nuisance. Morris Moore, the brother of the licensee, was the manager of The Cycle Lounge before he was arrested for selling cocaine. He was replaced as manager by Grady Atwood. Respondent testified that he made no background investigation of Atwood before installing Atwood as manager at The Cycle Lounge. Respondent further testified that he spent only a short time each day in The Cycle Lounge after he opens up in the morning and that he never observed any drug deals in The Cycle Lounge. He further testified that he doesn't think Thompson saw him in the lounge while crack sales were being negotiated because the person he saw was probably his brother Morris who bears a striking resemblance to him.
Recommendation It is recommended that a Final Order be entered revoking the 2 COP licenses of Robert Brown, Jr., d/b/a The Cycle Lounge. ENTERED this 20th day of February, 1990, in Tallahassee, Florida. K.N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1990. COPIES FURNISHED: Elizabeth C. Masters, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1000 Joseph H. Ficarrotta, Esquire 600 Madison Street Tampa, FL 32602 Leonard Ivey Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1000 Stephen R. MacNamara Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1000
Findings Of Fact Introduction Respondent, Maximilliano N. Gonzales (respondent or Max) is the holder of alcoholic beverage license number 23-04935, Series 2-COP, issued by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). The license is used in conjunction with the operation of a lounge known as the Los Amigos Bar (bar or lounge) located at 5 Southwest 55th Avenue, Miami, Florida. Respondent and his companion, Olga, purchased the lounge in January, 1983 and have operated it since that time. Generally, either Max or Olga is on the premises supervising operations although Max was seriously injured by a customer about a year ago while breaking up an altercation and was forced to curtail his activities. Consequently, he has hired several other persons to assist him in managing the lounge during 1987. In the summer of 1987, the Division received a list of fifty Miami area establishments where the City of Miami police department suspected illicit drug transactions were taking place. RespondeV bar was one of these establishments. As a part of its investigation, the Division sent two undercover investigators (Garcia and Santana) to the lounge on August 21, 1987 to ascertain whether the police department's suspicions were well- founded. The two visited the bar on a recurring basis until October 8, 1987 when the Division issued an Emergency Order of Suspension which shut down the lounge and suspended respondent's license. That prompted the case sub judice. During their seven week investigation, Santana and Garcia observed a number of open and flagrant drug transactions and other illicit acts taking place on the licensed premises. In accordance with the parties' stipulation, these acts are summarized in chronological order in the findings below. For purposes of this order, Roberto was a patron of the bar, Carlos was its manager, and Loreno, Rosa, Lourdes, Eliza and Genny were barmaids. Further, all employees were on duty when the events herein occurred. The investigation While visiting the lounge on or about September 2, 1987, Santana and Garcia were approached by Lorena and Roberto and asked if they wished to purchase some cocaine. The investigators told Roberto that they would each be interested in purchasing a half gram of cocaine. Roberto then left the licensed premises and returned shortly thereafter and handed each investigator a half gram packet containing what appeared to be cocaine, a controlled substance. Garcia paid Roberto sixty dollars for both packets. The transaction took place "in front of the bar" and in the presence of Lorena and Rosa. The substance purchased was sent to a laboratory where an analysis confirmed it to be cocaine. On another visit to the lounge on or about September 4, 1987, Santana and Garcia were approached by Roberto concerning a purchase of cocaine. Garcia told Roberto he and Santana wished to order a half gram each. Roberto left the licensed premises and returned a few minutes later. He handed Garcia two small packets containing what appeared to be cocaine. Garcia then paid Roberto sixty dollars for both packets. The transaction took place in plain view while the investigators were seated at the bar and in the presence of Rosa. The substance purchased was subsequently sent to a laboratory where an analysis confirmed it to be cocaine. While at the premises on September 4, Santana and Garcia heard Roberto ask Rosa in a loud voice if she wanted to purchase some cocaine. A short (but loud) conversation between Roberto and Rosa then ensued while in the presence of approximately ten patrons and three other barmaids. Throughout the same evening, several patrons were observed purchasing what appeared to be cocaine from Roberto inside the licensed premises. On or about September 8, 1987, Santana and Garcia observed Roberto selling what appeared to be cocaine to numerous patrons inside the licensed premises. The investigators were later approached by Roberto who asked if they wished to purchase the drug. After Santana responded that he wished to buy some, Roberto handed him two packets containing what appeared to be cocaine in exchange for sixty dollars. The transaction took place in plain view at the bar and in the presence of Lorena, Lourdes and Eliza. In addition, Carlos was on the licensed premises when these activities occurred. The substance purchased by the investigators from Roberto was thereafter sent to the laboratory for analysis and was found to be cocaine. On or about September 10, 1987, while on the licensed premises, Santana and Garcia were approached on two occasions by Lourdes and Genny who solicited drinks from the officers. The investigators then went to the parking lot of the licensed premises, and were approached by Roberto concerning a purchase of cocaine. After Santana responded that he wished to buy some, Roberto handed Santana two small packets containing what appeared to be cocaine in exchange for fifty dollars. The substance was later laboratory analyzed and found to be cocaine. After entering the premises on or about September 14, 1987, the investigators were immediately approached by Lourdes who solicited the officers for an alcoholic beverage. They were later solicited in the same fashion by Genny. Later on, Santana met with Roberto and Rosa and asked if he could buy some cocaine. Santana handed Roberto sixty dollars and returned to his seat at the bar. Shortly thereafter, Roberto approached the investigators at the bar and handed Santana two small packages containing what appeared to be cocaine. The transaction took place in plain view at the bar and in the presence of Rosa and Genny. The substance purchased was laboratory analyzed and found to be cocaine. On or about September 17, 1987, the investigators returned to the lounge and met with Eliza concerning a purchase of cocaine. Eliza approached a patron who was seated at the other end of the bar and briefly conversed with him. Eliza returned to the investigators and told them that she could obtain cocaine for sixty dollars per gram, and that the cocaine would be delivered to the bar in approximately thirty minutes. Some thirty minutes later, Roberto entered the lounge and approached the investigators and asked if they desired to buy the drug. Santana told him he was interested in such a purchase and handed Roberto sixty dollars in exchange for two small packets containing what appeared to be cocaine. The packets were delivered on top of the bar counter in plain view and in the presence of Eliza and Lourdes. The substance purchased was laboratory analyzed and found to be cocaine. While at the lounge on September 17, Genny solicited two drinks from Santana. The two investigators also had extensive conversations with Eliza regarding the purchase of cocaine. On or about September 21, 1987, Santana and Garcia met with the manager, Carlos, concerning the purchase of cocaine from Roberto. During the conversation, Carlos was told several times that the investigators had purchased cocaine from Roberto inside the licensed premises. Carlos merely responded that "Roberto is a good guy, but he is not here." At no time did Carlos express disapproval of the cocaine transactions occurring within the licensed premises. On the same visit, barmaid Genny solicited two drinks from the investigators. The investigators also had conversations with Genny regarding the availability of cocaine on the licensed premises. However, they were informed by her that Roberto had not yet arrived. On or about September 22, 1987, Santana and Garcia visited the lounge and were approached by Eliza who asked whether they wished to purchase some cocaine. Eliza also informed them that Roberto had instructed her to call him on his beeper if any of his "regular customers" needed to purchase cocaine. She added that if Roberto could not come to the bar, she could sell them drugs obtained from her source who was present at the bar. After Santana and Garcia told her that they were interested in purchasing cocaine,, Eliza took a quarter from the business cash register and placed a telephone call on the lounge telephone. Eliza then returned and informed them that Roberto was on his way to the bar. A few minutes later, Roberto entered the lounge, approached the investigators, and handed Garcia two small packages containing what appeared to be cocaine. For this, Garcia gave Roberto fifty dollars. The transaction took place in plain view at the bar and in the presence of Eliza and Carlos. The substance purchased was sent to the laboratory where an analysis confirmed the substance to be cocaine. It is also noted that on this same visit, Genny solicited a drink from the investigators. On or about September 24, 1987, Santana and Garcia returned to the bar and were approached by Eliza who asked if they wished to purchase cocaine. She again informed them that Roberto had instructed her to call him on his beeper should the investigators wish to make a purchase. After Santana and Garcia placed an order for cocaine, Eliza went to the public telephone inside the licensed premises, and made a telephone call. After she returned she advised them that Roberto would be arriving soon. Approximately twenty minutes later, Roberto arrived at the licensed premises and told them that he had the cocaine that they had ordered. Roberto then gave Santana one gram of a substance that appeared to be cocaine in exchange for sixty dollars. He also handed Garcia one-half gram of a substance appearing to be cocaine in exchange for thirty dollars. The two transactions took place in plain view in the bar and in the presence of Eliza and Carlos. The substances purchased were laboratory analyzed and found to be cocaine. During this same visit, Genny solicited a drink from the investigators. On or about September 28, 1987, the two investigators returned to the lounge and were approached by Eliza and Genny who asked if they were interested in purchasing some cocaine. Eliza told them that Roberto was not in the bar but that she could call him on his beeper. Garcia requested that Eliza telephone Roberto and order a gram of cocaine. Eliza left for a few moments and was observed making a telephone call inside the licensed premises. A few minutes later, Roberto entered the lounge and handed Garcia two small packets containing what appeared to be cocaine. For this, Garcia gave Roberto fifty dollars. The transaction took place in plain view at the bar and in the presence of Eliza and Genny. The purchased substance was laboratory analyzed and found to be cocaine. On the same visit, Santana asked Roberto if he could purchase a gram of cocaine. Roberto said yes and told him the cocaine was stored in his car in the parking lot. The two then went to the car, where Roberto removed a package containing what appeared to be a half gram of cocaine, and gave it to Santana in exchange for twenty-five dollars. The substance was sent to the laboratory for analysis and was found to be cocaine. On October 1, 1987, Santana and Garcia again visited the lounge and were approached by Eliza who asked them if they wished to purchase cocaine. She also advised them that Roberto had not been in the lounge that day. Even so, she told them she could obtain the drug from another source. Garcia and Santana then placed orders for one and one-half grams of cocaine, respectively. After leaving for a few moments, Eliza returned and handed Santana and Garcia a brown paper napkin containing what appeared to be a gram and a half of cocaine. She was then paid seventy-five dollars by the investigators. The substance purchased was laboratory analyzed and found to be cocaine. On October 6, 1987, Santana and Garcia returned to the lounge and were asked by Eliza if they were interested in purchasing cocaine. Although she noted that Roberto had not been in the lounge that day, she told them she could obtain the drug from another source. Thereafter, Garcia and Santana each ordered one-half gram of cocaine from Eliza. After leaving the premises for a few minutes, Eliza returned and gave each investigator what appeared to be one- half gram of cocaine in exchange for fifty dollars. A laboratory analysis of the substance confirmed it was cocaine. When the above events occurred, there were no signs posted in the lounge warning patrons not to use drugs or to bring them on the premises. Further, the two investigators were never told by the manager or other employees to not use drugs, nor did they ever see a patron asked to leave because of having drugs in his possession. Max was seen in the lounge almost every day when the investigators were conducting their operation. However, there is no evidence that he personally saw a drug transaction take place, or that he was aware of any illicit activity. This is also the first occasion on which the licensed premises has been investigated. Mitigation At hearing Max and Olga appeared remorseful about this episode. They denied having knowledge of any drug transactions, and stated that around six months ago they had requested two Miami police officers to lend assistance in ridding their lounge of undesirable elements. They also told the police that "rocks" were being smoked in an adjacent parking lot. After the suspension of their license, the barmaids were fired. It is not clear whether Carlos was fired, but he only worked at the lounge for one or two months. A former manager who worked the first five months of 1987 testified he saw no drugs during his tenure, and that he was advised by Max to call the police if there were any problems. Because of his gunshot wounds, Max concedes it was necessary to hire other persons, perhaps too young, to oversee the lounge. He blames the incidents on those employees. If the license is reinstated, Max intends to shorten business hours and to have either himself or Olga on the premises at all times to ensure that no illicit activities occur. They also desire to sell the establishment, since they have invested their life savings in the business, and it represents their sole support.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of all charges in the Notice to Show Cause and that his License No. 230495, Series 2-COP, be REVOKED. DONE AND ORDERED this 2nd day of November, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4483 Petitioner: 1. Covered in finding of fact 1. 2. Covered in finding of fact 5. 3. Covered in finding of fact 6. 4. Covered in finding of fact 7. 5. Covered in finding of fact 8. 6. Covered in finding of fact 9. 7. Covered in finding of fact 10. 8. Covered in finding of fact 11. 9. Covered in finding of fact 11. 10. Covered in finding of fact 12. 11. Covered in finding of fact 13. 12. Covered in finding of fact 14. 13. Covered in finding of fact 15. 14. Covered in finding of fact 16. 15. Covered in finding of fact 17. 16. Covered in finding of fact 18. 17. Covered in finding of fact 19. 18. Covered in finding of fact 20. 19. Covered in finding of fact 3. 20. Covered in findings of fact 4 and 21. Respondent: Covered in findings of fact 1 and 3. Covered in findings of fact 1 and 3. Covered in finding of fact 21. Covered in finding of fact 21. 5.(a) Covered in finding of fact 2. Covered in finding of fact 3 to the extent the investigation was prompted by the City of Miami. The remainder is not supported by the evidence. Covered in finding of fact 22. Covered in finding of fact 21. Covered in finding of fact 22. Rejected since the evidence shows Lourdes and Rosa worked "many months" and "3-4 months," respectively. Covered in finding of fact 22. Covered in finding of fact 23. 6. Covered in finding of fact 23. COPIES FURNISHED: Thomas A. Klein, Esquire 725 South Bronough Street Tallahassee, Florida 32399-1020 Jose M. Herrera, Esquire Post Office Box 345118 Coral Gables, Florida 33114 Daniel Bosanko, Director 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, Esquire General Counsel The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue The issue is whether the certificate issued to Mr. Ramsey by the Criminal Justice Standards and Training Commission should be revoked for his failure to maintain good moral character through the use of cocaine.
Findings Of Fact Charles Ramsey was issued a certificate on October 2, 1981, by the Criminal Justice Standards and Training Commission, number 19-81-502-01, as a correctional officer. On April 12, 1988, Mr. Ramsey went to the Mount Sinai Medical Center for Industrial Medicine at 4300 Alton Road, Miami Beach, Florida 33140. The overall purpose of the visit was not clear, but as a part of his activities at the Center, Ramsey provided urine specimen for analysis. Before providing the specimen, Ramsey had disrobed, was wearing a hospital gown, and was escorted to a bathroom at the site, where he was given two marked specimen bottles. The first bottle was for the main sample, the second for any overflow if Mr. Ramsey's urine donation was greater than the size of the first bottle. Each bottle was a 60 ml. pharmaceutical round bottle. The specimen bottles had his name on them, a bar code identifying the bottles as bottles from an employee of the Metro-Dade Law Enforcement Department, and the unique specimen number of 117270. At that time, Mr. Ramsey initialed the information on the bottle acknowledging that it was correct. After he exited the bathroom and delivered the urine bottle it was sealed with evidence tape by the technician at Mount Sinai, Sonia Abreu, and was placed in a locked cabinet. The cabinet was opened with a key belonging to the courier for the Toxicology Testing Service of Miami, Florida. The urine was kept under lock and key until it was removed and brought to the screening room at Toxicology Testing Service. The technician there broke the seal and dispensed a sample into an automated clinical analyzer which performed an EMIT screen test on 3 ml. of urine. That test showed the presence of cocaine metabolites, i.e., substances left in the body after cocaine has been ingested and been processed by the metabolic action of the body. Based on this initial positive screening test result, another 3 ml. of the sample was used to perform the screening test again. When the screening test again was positive for cocaine metabolites, a more specific test for the presence of cocaine metabolites was performed by Dr. Terry Hall, who holds his doctorate in chemistry, and has specialized in forensic toxicology. The test was performed using a gas chromatograph and a mass spectrometer. The study showed the presence of methylecganine in the urine, which is a cocaine metabolite. The concentration of the methylecganire in the sample was such that it is likely that Mr. Ramsey used cocaine within the previous two weeks. Exposure to trace amounts of cocaine, such as from airborne cocaine which might be inhaled while measuring cocaine seized as part of a drug arrest, could not have yielded the high level of methylecganine found in Mr. Ramsey's urine. The level of metabolite is such that Mr. Ramsey would have had to ingest approximately 10 grams of cocaine.
Recommendation Based upon the foregoing, it is RECOMMENDED that the certificate held by Charles Ramsey be revoked for failure to maintain good moral character. DONE and ENTERED this 28th day of April, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1989. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Charles Ramsey 1064 Northwest 61st Street Miami, Florida 33127 Daryl McLaughlin, Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission
Findings Of Fact Respondent is a Florida corporation. Gary Popkin is its sole corporate officer and stockholder. He holds the positions of President, Vice-President, Secretary and Treasurer. Respondent is now, and has been at all times material hereto, the holder of alcoholic beverage license #16- 03 032 2-COP issued by Petitioner. The licensed business is a bar that operates under the name of Lynda's Lounge. It is located at 8007-8009 Kimberly Boulevard in North Lauderdale, Florida. C.G. is a paid confidential informant. The North Lauderdale Police Department is among the law enforcement agencies for whom he works. On the afternoon of July 19, 1989, C.G. entered Lynda's Lounge, sat down and ordered a drink. While in the bar, C.G. was approached by Vinnie Lavarello, another of the bar's patrons. They were joined by Popkin. A conversation ensued. Popkin advised C.G. that he had some "good pot" and asked him if he wanted to buy some. He suggested that C.G. act quickly because he only had a little left. Both Popkin and Lavarello told C.G. that there was no need to worry because everyone in the bar "smoked pot" and was "cool." C.G. informed Popkin that he would "let him know." He thereupon left the bar and paged Detective Gary Harris of the North Lauderdale Police Department. Harris instructed C.G. to meet him at the North Lauderdale police station, which is a short distance from the bar. In accordance with Harris' instructions, C.G. went to the police station. He provided Harris with a description of Lavarello and Popkin, as well as their names. Harris searched C.G. and C.G.'s car for drugs and found none. He then gave C.G. $20.00 with which to purchase marijuana from Popkin. C.G. drove back to the bar. He was followed by Harris in another vehicle. They arrived at the bar at approximately 5:55 p.m.. C.G. entered the bar, while Harris waited outside. Once in the bar, C.G. walked up to Lavarello and indicated that he was interested in consummating the deal they had discussed earlier that day. Popkin apparently overheard C.G. He gave C.G. a package containing marijuana (cannabis). In return, C.G. gave Popkin the $20.00 he had been given by Harris. Following this transaction, there was a discussion concerning the possibility of C.G. purchasing additional drugs, including cocaine, from Popkin. Popkin quoted C.G. prices for various quantities of the drug and encouraged C.G. to come back and do business with him. At approximately 6:10 p.m., fifteen minutes after he entered the bar, C.G. left and drove in his vehicle to a prearranged location to meet Harris. Harris observed C.G. leave the bar and followed C.G. in his vehicle to their predetermined meeting place. After they both exited their vehicles, C.G. handed Harris the marijuana he had purchased from Popkin and told Harris what had happened in the bar. Harris field tested the marijuana. It tested positive. Harris placed the marijuana in a sealed bag and forwarded it to the crime laboratory of the Broward Sheriff's Office. Tests performed at the crime laboratory reflected that the substance that Popkin had sold C.G. was indeed marijuana. After consulting with Harris regarding the matter, C.G. returned to Lynda's Lounge on July 21, 1989, to make arrangements to purchase an ounce of cocaine. As he had been told to do by Popkin, C.G. discussed the matter with Lavarello. C.G. and Lavarello agreed on a purchase price. C.G. then left the bar to get money to make the purchase. After leaving the bar, C.G. went to the North Lauderdale police station and met with Harris. Harris searched C.G. and C.G.'s vehicle for drugs and found none. He then gave C.G. money with which to purchase an ounce of cocaine from Lavarello. Although C.G. and Lavarello had agreed upon a purchase price of $700.00, because it is a common practice of drug dealers to raise their prices immediately before the transaction is to take place, Harris gave C.G. $800.00 in the event Lavarello raised his price. C.G. then drove back to the bar, followed by Harris in another vehicle. After parking, C.G. exited his vehicle and entered the bar. Harris remained outside, across the street from the bar. C.G. approached Lavarello. It was too noisy inside the bar to talk so C.G. and Lavarello left and continued their conversation in C.G.'s vehicle, which was parked in the lot in front of the bar. Lavarello indicated to C.G. that he did not have the cocaine with him and needed to pick it up, but that C.G. would have to give him the entire purchase price before he did so. C.G. then excused himself. He thereupon contacted Harris and they both returned to the North Lauderdale police station. Harris did not want C.G. to give Lavarello that much money and have to wait for the cocaine to be delivered. He therefore decided to have C.G. purchase an eighth of an ounce, instead of an ounce, of cocaine from Lavarello, the purchase price of which, C.G. had been told, was $150.00. Accordingly, Harris took back $600.00 of the $800.00 he had given C.G. earlier that day. Harris then again searched C.G. for drugs and found none. C.G. thereupon headed directly back to the bar, with Harris following behind him in another vehicle. C.G. met with Lavarello at the bar. He told Lavarello that he wanted to purchase a eighth of an ounce, rather than an ounce, of cocaine. He gave Lavarello $200.00 and made arrangements to meet Lavarello later that day at the bar to receive delivery of the cocaine he had purchased. At Lavarello's request, C.G. drove Lavarello to Lavarello's girlfriend's house. C.G. then returned to the North Lauderdale police station. At all times during this journey, C.G. and his vehicle were under Harris' observation. At the police station, Harris again searched C.G. for contraband and found none. Later that day, C.G. and Harris went back to Lynda's Lounge in separate vehicles. Harris remained outside, as C.G. exited his vehicle and headed towards the front door of the bar, where he encountered Lavarello. C.G. and Lavarello then proceeded to C.G.'s vehicle, where Lavarello handed C.G. a package containing cocaine. Upon receiving the package, C.G. complained that it appeared that he had received less cocaine than he had been promised. Lavarello admitted that he had given his girlfriend some of the cocaine that originally had been intended for C.G. To compensate for the missing cocaine, Lavarello gave C.G. a package containing marijuana. In addition to the cocaine and marijuana, Lavarello also gave C.G. a $20.00 bill and a gas receipt reflecting the amount of money he had paid for gasoline during his trip to pick up the cocaine. Following this transaction, C.G. and Lavarello went their separate ways. As he had done after the buy he had made on July 19, 1989, C.G. met Harris at a prearranged location. He handed Harris everything that Lavarello had given him. Harris searched C.G. and found no additional contraband. Harris then field tested both the cocaine and the marijuana. The test results were positive. After conducting these field tests, Harris placed the cocaine and marijuana in a sealed bag and forwarded the bag to the crime laboratory of the Broward Sheriff's Office. Tests performed at the crime laboratory reflected that the substances in question were indeed cocaine and marijuana. Popkin and Lavarello were subsequently arrested by Harris. 1/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order finding Respondent guilty of the violations of Section 561.29(1), Florida Statutes, charged in the January 9, 1990, Notice to Show Cause and revoking alcoholic beverage license #16-03032 2- COP held by Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this & day of October, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675
The Issue The issues in this case are framed by the Notice to Show Cause issued by the Petitioner, the Department of Alcoholic Beverages and Tobacco (the Department), on or about October 9, 1991. The Notice to Show Cause contains a total of 32 counts. Twenty nine (29) counts accuse the Respondent, Bernard Jordan, d/b/a Club Zanzibar, of permitting an agent, servant, patron, or employee to unlawfully possess, sell or deliver a controlled substance (cocaine) to an undercover informant or law enforcement officer on the licensed premises in violation of Sections 893.13(1)(a) and 893.13(1)(f) within Section 561.29(1)(a), Florida Statutes. One count accuses the Respondent of permitting an agent, servant, patron, or employee to unlawfully possess, sell or deliver five (5) liters of non tax paid whiskey (moonshine) to an undercover informant or law enforcement officer on the licensed premises in violation of Sections and 562.451 within Section 561.29(1)(a), Florida Statutes. 1/ One count accuses the Respondent of unlawfully keeping or maintaining the licensed premises for the illegal keeping, using, selling or delivering of substances controlled under Chapter 893.03, in violation of Sections 823.10 and 893.13(2)(a)(5), within Section 561.29(1)(a), Florida Statutes. Finally, the last count accuses the Respondent of failing to exercise due diligence in supervising the licensed premises, allowing it to be used by agents, servants, patrons, or employess for the purpose of possessing, selling, delivering and using illegal substances controlled under Chapter 893.03 (coccaine) and 562.451 (moonshine), 2/ in violation of Sections 823.10 and 561.29(1)(c), Florida Statutes.
Findings Of Fact The Respondent, Bernard Jordan, has owned and operated the Club Zanzibar, located at 2132 Main Street, Tampa, Hillsborough County, Florida, for approximately nine years. He holds alcoholic beverage license number 39-00839, series 4-COP, issued by the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, authorizing the sale of alcoholic beverages for consumption on the premises. (He also operates a package store on the premises.) When the Respondent began operating under his license in 1983, there was much less drug activity in the vicinity than there is now. The clientele of the Club Zanzibar was mixed, in the sense that it included the community's professional and blue collar workers, and also law enforcement employees; but the clientele generally was a stable and settled crowd. Supporters of a local community boys' club regularly met at the Club (and continued to meet there up to the time of the emergency suspension on October 10, 1991.) During the early years of the Club, the package store part of the business had two entrances, and the less controlled access to and egress from the premises did not present a problem for the Respondent. There was relatively little loitering and drinking on the street in front of the Club. Notwithstanding the relatively stable environment, the Respondent did not ignore the potential for unlawful activity on the premises. He utilized an Employee Handbook that all new employees had to read and, after completing a month of probationary employment, sign. Among other things, the handbook informed the employees: If a customer is suspected of performing any unlawful acts in this business, the police will be contacted. . . . Do not accuse a customer of any unlawful acts, if not seen by the employee of the establishment. If the employee is using, has or obtaining [sic] drugs, they will be dismissed immediately. (PLEASE READ NOTICE CONCERNING DRUGS). * * * DUE TO RECENT SUSPICIONS OF DRUGS AND OTHER ILLEGAL MATTERS BEING BROUGHT ON THESE PREMISES, ANYONE ENTERING THIS ESTABLISHMENT IS SUBJECT TO BEING POLITELY CHECKED, AS A MEASURE TO PROTECT THE OPERATION OF THIS BUSINESS. WE OFFER OUR DEEPEST APOLOGIES, BUT POSITIVELY NO DRUGS OR ANY OTHER ILLEGAL SUBSTANCES ARE ALLOWED. * * * No one is allowed to LOITER on the grounds of the establishment and no one should be standing in front of door exits or entrances. 4/ Club employees also were informed on a regular basis that no illegal drugs were allowed on the premises and that employees should keep them out if they could or, if not, should notify the Respondent, who either would take care of it himself or call the police. The Respondent also would "bar" anyone caught with or strongly suspected of having, illegal drugs on the premises. The "bar" was permanent or until lifted by the Respondent. The employees are told to enforce the "bar," and if someone who has been barred ignores an employee's enforcement measures, the employee is supposed to tell the Respondent, who enforces it himself or, if necessary, calls the police. But the Respondent did not hold regular, formal meetings to remind the employees of Respondent's prohibition against the possession, use or sale of illegal drugs and of their responsibility with respect to patrons violating the policy. He did not require his employees to complete employment applications or be screened. Nor did he polygraph his employees. The Respondent also posts five-by-seven inch placards in conspicuous places throughout the premises informing customers and employees alike: Illegal Activities Warning: This establishment is firmly against any illegal behavior! . . . Drugs: Drugs are positively prohibited on these premises! Anyone seen or reported with any form of Narcotics will IMMEDIATELY be reported to the police without warning! (A similar message is related as to dangerous weapons.) Although the Respondent makes efforts to enforce the basic "no drugs" policy, he does not always follow the letter of his warnings and announced enforcement measures. He does not, for example, report drug violators to the police "immediately" and "without warning," as the placards state. Indeed, there is no evidence that the Respondent ever reports drug violations to the police or asks for police or Department assistance to address the issue of drugs on the premises. In recent years, the environment around and in the Club Zanzibar has changed drastically. In recent years, crack cocaine has become a serious problem in the vicinity. Crack is sold predominantly by a crowd that is younger than the historical Club Zanzibar clientele. This younger crowd now mixes with the historical Club clientele. It also loiters around in the street in front of the Club and in the general vicinity. Street sales of crack are so frequent in the area that the street has been likened to a drug supermarket. Anyone, anywhere in Tampa, can come to Main Street in this part of the city and buy crack with almost no wait. The problem has become so bad that the Tampa Police Department has opened a sector office nearby; yet, the drug problem in the area persists despite the greater police presence. Because of changed circumstances in the neighborhood, the Respondent has altered the premises to eliminate one of the two entries to the package store to make it a little easier to monitor those going in and out of the package store. The Respondent also has placed a mirror in the premises to allow whoever is tending bar to monitor the foyer of the Club for possible loitering or illegal activity from a particular vantage point near the cash register. But he did not take steps to improve the lighting in the licensed premises. Nor did he vigorously police his establishment. The Respondent did not hire a manager or adequate security guards to police the licensed premises. The Respondent has volunteers who work for him on weekends and, to some extent, watch for illegal activities on the premises. But these volunteers are retirees who are not particularly effective and their primary function seems to be to collect the cover charge for the Respondent. Even assuming that they were actively policing the establishment, they were not capable of doing the job that should have been done. In response to apparent complaints, the Department sent an undercover special agent and an undercover confidential informant (the CI) into the Club Zanzibar on or about May 31, 1991. (An undercover Tampa Police detective also went as a back-up.) The CI and Agent Murray entered the Club and took a seat at the bar. In a short while, a black male known to the CI as a drug pusher who went by the initials "C.C." walked up to them. (C.C. also had told the CI that he (C.C.) was the Respondent's brother, but the evidence did not prove that C.C. was in fact the Respondent's brother.) The CI told C.C. he wanted to buy "a 20" ($20 worth of crack cocaine.) C.C. left for the men's room and returned with a plastic baggy. He held it up waist high or higher to show them that the baggy contained crack cocaine. He removed some of the crack from the baggy and gave it to the CI. 5/ After examining the crack, the CI told Agent Murray to pay C.C. the $20. There were about 15 people in the Club during the transaction on May 31, 1991. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. 6/ No extraordinary effort was made to hide the transaction on May 31, 1991. /7 But neither was the transaction done in an open manner for all to see. The evidence was not clear whether anyone in the bar during the transaction on May 31, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On June 7, 1991, Agent Murray and the CI again entered the Club. There they talked to Wayne Fowler, who gave them the impression that he was employed at the bar as a manager or bouncer. (However, the evidence did not prove that Fowler was ever employed by the Respondent in any capacity.) The CI asked for C.C. Fowler told him that he (Fowler) was "holding C.C.'s stuff" and asked if they wanted to buy from him or wait for C.C. The CI said they would buy from Fowler, and Fowler passed some crack to the CI's lap, under the level of the bar (but not actually underneath the bar counter top). Agent Murray similarly passed a $20 bill to the CI, who passed it to Fowler. There were about 20 people in the Club during the transaction on June 7, 1991. But the evidence was not clear whether anyone in the bar during the transaction on June 7, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On June 12, 1991, the CI and Agent Murray, together with a backup from the Tampa Police Department, again went to the Club. This time, they did not see anyone in the Club to buy drugs from, and the CI and Agent Murray were leaving when Fowler came in and met them in the foyer, which was not visible from throughout the Club's interior. Fowler immediately asked them if they wanted to buy crack. They said yes, and Fowler sold them "a 20." The whole transaction took no more than four or five seconds. The participants in the transaction on June 12, 1991, spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone passing through the foyer at the time. Although there ordinarily are people entering and leaving the Club through the foyer at fairly regular intervals, it was not proven that anyone passed by during the couple of seconds the drug deal lasted. 8/ The evidence was not clear whether anyone in the bar during the transaction on June 12, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On June 14, 1991, the CI and Agent Murray again went to the Club Zanzibar to make a drug buy. Shortly after they entered and sat down at the bar, Fowler came in and went over to them at the bar and asked if they wanted to buy crack. They told him they did, and Fowler left the premises. He returned a short while later and walked up behind the empty stool between them and shook some crack out of a handkerchief onto the empty stool. (The bar stools had a back; and the seats were below bar level.) The CI picked up the crack and gave it to Agent Murray, who gave Fowler a $20 bill. There were about 15 people in the Club during the transaction on June 14, 1991. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transaction on June 14, 1991. But neither was the transaction done in an open manner for all to see. The crack was blocked from general view by the bar on one side, by the bar stool back and Fowler on the opposite side, and by the CI and Agent Fowler on either side of the empty stool. The whole transaction took only about five seconds. Although there were people moving about in the Club, as usual, the evidence did not prove that anyone in the bar during the transaction on June 14, 1991, observed the drug deal. On June 18, 1991, the CI, Agent Murray and their backup undercover detective from the Tampa Police Department returned to the Club Zanzibar to make drug buys. Although there were about 15 people in the premises, apparently no one was selling drugs to them, and the CI left to try to find Fowler. The CI found out that a man named Don Vanderhorst was holding Fowler's crack and would sell some to them. Vanderhorst returned with the CI to the Club. There, Vanderhorst showed them a plastic bag containing crack, holding it in a partially concealed manner between waist and chest height, sold them $10 of crack and left. After buying from Vanderhorst on June 18, 1991, the three law enforcement personnel stayed on the premises. A short time later, Fowler came in and went directly over to the CI and Agent Murray to see if they wanted to buy some more crack from him. Fowler passed to the CI, at waist level, a piece of crack folded up in a torn piece of brown paper the size of a quarter coin. Fowler said he would sell it to them for $10. He changed a $20 bill for them and made the sale. There were about 15 people in the Club during the transactions on June 18, 1991. The participants in the transactions spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transactions on June 18, 1991. But neither were the transactions done in an open manner for all to see. View of the Vanderhorst transaction was blocked from the back and sides by the three participants. Although customers generally move around and about inside the Club on a fairly regular basis, these transactions took place on the side of the "U"-shaped bar opposite the entrance to the Club, between the bar and the right hand perimeter wall of the premises, near the corner where one end of the bar "dead-ends" on that side into the front perimeter wall of the inside of the premises. There generally is much less traffic in this area since it is a "dead end." An unidentified female bartender might have been able to observe the transactions, but the evidence was not clear whether anyone in the bar during the transaction on June 18, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On June 19, 1991, the CI and Agent Murray returned to the Club Zanzibar. This time, Fowler was seated at a table inside. After they were seated at the bar, Fowler approached them and asked them what they wanted. Agent Murray answered that they wanted "a 20." Fowler told them quietly and privately that they would have to wait because of the customer seated next to Agent Murray. When the customer left, Fowler proceeded to take out a folded up torn piece of brown paper. Holding it at waist level, he showed them the crack that was in it. He took two pieces and passed them to the CI, who passed them to Agent Murray, who gave the CI a $20 bill to give to Fowler. There were about 15 people in the Club during the transactions on June 19, 1991. The participants in the transaction spoke in a quiet tone in the presence of the customer seated next to Agent Murray but otherwise in a normal conversational tone. The juke box was playing, as usual, and the normal conversational tone probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transaction on June 19, 1991. But neither was the transaction done in an open manner for all to see. The participants partially blocked the view from the back and sides. The evidence did not prove that anyone in the bar observed the drug deal on on June 19, 1991. On June 24, 1991, Fowler and Vanderhorst were outside talking when the CI and Agent Murray arrived at the Club Zanzibar. Shortly after they entered, Fowler came in and approached them to ask them if they wanted to buy crack. Fowler said that Vanderhorst was "holding my stuff." He left and went to the back of the bar (where the bathrooms are). (Apparently, Vanderhorst also had entered the Club with Fowler and went to the back of the premises, perhaps to the bathroom.) Fowler returned with two pieces of crack which he passed to the CI. Agent Murray gave Fowler $20. There were about ten people in the Club during the transaction on June 24, 1991. No extraordinary effort was made to hide the transaction. The evidence was not clear whether anyone in the bar during the transaction on June 24, 1991, other than the participants, observed the drug deal or heard any of the related conversation. When the CI and Agent Murray arrived at the Club Zanzibar on July 1, 1991, once again Fowler and Vanderhorst were outside on the street. Fowler followed the two inside and approached them to ask if they wanted crack. They said they did, and Fowler passed some crack to the CI for $20. There were about 20 people in the Club during the transaction on July 1, 1991. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transaction on July 1, 1991. But neither was the transaction done in an open manner for all to see. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence was not clear whether anyone in the bar during the transaction on July 1, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 5, 1991, the CI and Agent Murray entered the Club Zanzibar to buy drugs but did not see anyone to sell to them. The CI had to go outside looking for Fowler. He found Fowler, who told him he (Fowler) was waiting for his "supply," i.e., the person supplying him with cocaine. The CI brought Fowler back into the Club with him. There, Agent Murray asked Fowler for "some play," i.e., some crack to buy. Fowler told her he would have to "cut" it, i.e., convert it to crack, and left. About five minutes later, Fowler came back in and passed a piece of crack to the CI. There were about 10-15 people in the Club during the transaction on July 5, 1991. The Respondent and his sister were working on the premises on July 5, 1991. No extraordinary effort was made to hide the transaction on July 5, 1991. But neither was the transaction done in an open manner for all to see. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence was not clear whether anyone in the bar during the transaction on July 5, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 8, 1991, Fowler again was outside on the street when the CI and Agent Murray arrived at the Club. Fowler followed them inside. The Respondent was tending bar. Fowler quietly and privately told the CI and Agent Murray that they would have to watch out for the Respondent. Fowler left them and returned in a minute or two. Fowler kept a close eye on the Respondent and, about three or four minutes later, got an opportunity to do the drug deal without the Respondent seeing it. While keeping a close eye out for the Respondent, Fowler passed two pieces of crack to the CI, who passed the crack to Agent Murray. Murray passed $20 back to Fowler through the CI. Besides the Respondent, there were about 10 people in the Club during the transaction on July 8, 1991. Except when they were lowering their voices so the Respondent would not hear them, the participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. Except for the efforts to keep the Respondent from seeing it, no other extraordinary effort was made to hide the transaction on July 8, 1991. But neither was the transaction done in an open manner for all to see. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence was not clear whether anyone in the bar during the transaction on July 8, 1991, other than the participants, observed the drug deal or heard any of the related conversation. When the CI and Agent Murray arrived at the Club on July 16, 1991, they again saw Fowler outside on the street. Fowler followed them in but stopped in the foyer area and beckoned them to come to the foyer. There, Fowler informed them that the Respondent had barred him from the Club and that they would have to do the deal on the street. The CI protested that he did not want the police to see him. Fowler left, and the CI and Agent Murray returned to the Club. When they left the Club some time later, Fowler met them in the foyer. Within a matter of five to ten seconds, Fowler had passed a single piece of crack to the CI, and Murray passed $20 to Fowler. Although there ordinarily are people entering and leaving the Club through the foyer at fairly regular intervals, it was not proven that anyone passed by during the couple of seconds the drug deal lasted. The evidence was not clear whether anyone in the bar during the transaction on July 16, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 18, 1991, Fowler was sitting outside on the street when the CI and Agent Murray arrived at and entered the Club. Fowler did not follow them in. Vanderhorst was inside, and they asked him for crack, but he did not have any to sell. Eventually, they left. Fowler apparently had been waiting for them in the street and, as the CI opened the door to exit the premises, Fowler met him and kept the door propped open while he offered to sell them crack. Fowler passed crack to CI, and Murray gave the CI $20 to give to Fowler. People were walking by on the street, and it would have been possible for someone in the street or walking into the foyer to observe the drug deal that took place on July 18, 1991. But it was not proved that anyone in the bar during the transaction on July 18, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 22, 1991, Fowler stopped the CI and Agent Murray before they could even get into the Club. Again dealing in the doorway with the door propped open, Fowler passed crack to the CI (in a manner such that Murray herself, who was not looking directly at the transaction, was unable to observe it). The CI passed the crack to Murray, who gave Fowler $20. Again, as on July 18, people were walking by on the street, and it would have been possible for someone in the street or entering the foyer to observe the drug deal that took place on July 22, 1991. But it was not proved that anyone in the bar during the transaction on July 22, 1991, other than the participants, observed the drug deal or heard any of the related conversation. The next day, the CI and Agent Murray returned to the Club Zanzibar. They didn't see Fowler or Vanderhorst. The CI saw someone named Eddie Hall, who was known to the CI to be a "watch dog" for drug pushers. The CI approached him and asked for Fowler and Vanderhorst. Hall left looking for them and returned to tell them that the Respondent had barred Fowler from the Club and that he couldn't come in. Hall told the CI that Fowler was outside and would sell them "a half a packet" (apparently, four pieces of crack) for $20. Just then, Fowler appeared just inside the entrance to the Club and beckoned the CI and Murray to come to him. In all, Fowler was inside the Club for just a matter of seconds (four to five). Fowler met them in the foyer, and the CI told him that they declined the offer to sell "a half a packet" because they were looking for a full "packet." Fowler became irate, apparently at the illogic of their refusal to buy anything. He yelled and screamed and carried on for thirty seconds to a minute until they were in the street. Eventually, the CI and Agent Murray relented in their dubious position and bought a "half a packet" for $20 on the street in front of the Club. 9/ Except for Fowler's yelling and carrying on in the foyer and in the street, the participants in the transaction on July 23, 1991, spoke in a normal conversational tone. The juke box was playing, as usual, and the conversational tone probably could be overheard only by someone sitting immediately adjacent to the participants. As for the Fowler's yelling and screaming, it might have been heard by the bartender, a female named Brunette, and she did not do anything about it before they all moved into the street, but the evidence did not prove that she would have been able to tell that Fowler's yelling and screaming necessarily involved a drug deal. The evidence did not prove that anyone in the bar during the transaction on July 23, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 25, 1991, the CI and Agent Murray again went to the Club Zanzibar. The Respondent was behind the bar. His sister was working there, too. After a time, the Respondent left, and Eddie Hall approached them. He told them that the Respondent was gone and that Fowler wanted to see them outside. The CI objected to doing the deal in the street and went to the front door of the Club and called out to Fowler to come in. Fowler went as far as the foyer and met them there. No employees were nearby. In conducting the transaction, Fowler accidentally dropped a white crack "rock" on the foyer floor. He nonchalantly bent down as if he were tying his shoe and picked it up. 10/ Fowler passed the crack to CI, who passed it to Agent Murray, who gave the CI $20 to give to Fowler. Other than Fowler's effort to pick up the crack he had dropped without attracting attention, no other extraordinary effort was made to hide the transaction on July 25, 1991. But neither was the transaction done in an open manner for all to see. It was conducted in the foyer where no employee saw it. Indeed, there is no evidence that anyone saw the transaction other than the participants. There is no evidence that anyone in the bar during the transaction on July 25, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 26, 1991, the CI and Agent Murray returned to the Club Zanzibar. As they were about to enter, they saw Vanderhorst just outside. Vanderhorst followed them in. The CI went over to Vanderhorst to ask about crack. Vanderhorst said Fowler was waiting to get some from his girl friend. He left to look for them. Later, Vanderhorst returned and told the CI and Murray that Fowler had some crack and would meet them in the foyer. They went to meet Fowler and bought $20 of crack from him. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transaction on July 26, 1991. But neither was the transaction done in an open manner for all to see. It was conducted in the foyer where no employee saw it. Indeed, although there were 10-15 people in the Club at the time, there is no evidence that anyone in the bar during the transaction on July 26, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On August 2, 1991, Vanderhorst followed the CI and Agent Murray into the Club Zanzibar. Vanderhorst approached them and told them his crack was in his car. Vanderhorst left and returned with a $10 piece of crack. The drugs and money passed inside the bar. There were about 10-15 people in the Club during the transaction on August 2, 1991. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transaction on August 2, 1991. But neither was the transaction done in an open manner for all to see. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence did not prove that anyone in the bar during the transaction on August 2, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On August 14, 1991, the CI and Agent Murray went to the Club Zanzibar and apparently found no one to sell them drugs. The CI went outside to find someone named "Dragon," who was leaving when they came in. The CI returned with someone named James Royal, who had "some dubs" and sold them "a 20" of crack. Royal passed the crack to the CI at chest height (i.e., above the bar). Holding it between his two fingers, the CI showed it to Murray for a few seconds (three or four) before giving it to her. Murray gave Royal $20 for the crack. There were about 15 people in the Club during the transaction on August 14, 1991. No extraordinary effort was made to hide the transaction on August 14, 1991. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence did not prove that the two female bartenders on duty--Pat and Lena--or anyone in the bar during the transaction on August 14, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On August 26, 1991, the Respondent was working in the package store when the CI and Agent Murray entered the Club Zanzibar. Lena was tending the bar. A man known as Adelbert Cliatt or Al Clyde (Clyde) came up to the CI, who asked if Clyde was "still in the business." Clyde said he was but that someone else was holding his "stuff" to reduce the chances that he would get caught. During the conversation between Clyde and the CI, the Respondent came into the Club to try to fix the juke box. The Respondent was kneeling with his back to the bar, about 8-10 feet away from where they were sitting at the bar. While the Respondent was still working on the juke box, someone named Toby Adams came in and joined them. Clyde told Adams, apparently the person holding Clyde's crack, that the CI had asked for "a 20" and to go get. Adams gestured towards the Respondent, afraid to discuss it further or to deal while the Respondent was there. Clyde and Adams then left the Club. When they returned with the drugs, Clyde and Adams just stood behind where Murray and the CI were seated at the bar and waited until the Respondent was finished with the juke box and returned to the package store. Then Clyde took out a piece of crack on a piece of paper to display it to the CI at about chest level. Twice during the five or seven seconds Clyde was displaying the crack to the CI, the CI told Clyde in hushed tones to lower the crack so that it would not be as easy for others to see. The CI also complained that it was not "a 20," but Clyde insisted that it was, pointed out that he was also selling the "shake," i.e., the loose crack particles, that was on the paper. Clyde then folded the paper and gave it to the CI. While the Respondent did not return to the bar area while the transaction was taking place on August 26, 1991, Lena was in the vicinity the whole time and was able to see what was happening, but she showed no interest and did nothing to stop it. It was not proven that the Respondent or any other of the 15 or so people in the Club, other than the participants, observed the drug deal or heard any of the related conversation. Two days later, on August 28, 1991, Agent Murray and the CI returned to the Club Zanzibar and met Fowler on the street outside the Club. As the three headed towards the entrance, Fowler reminded them that he was barred from the Club, and Fowler passed crack to Murray in the foyer. There was no evidence that anyone other than the participants saw the transaction or knew that drugs had been passed. Agent Murray and the CI then continued into the Club. Although Fowler had not yet been paid for the crack, he did not follow them but stopped at the end of the bar nearest the entrance. The Respondent saw Fowler and went over to talk to him. The evidence was not clear what was said, but no more than a minute later, Fowler left. 11/ While the CI and Agent Murray were inside the Club, someone named Clements came in and approached them to tell them that Fowler was "waiting for his package," i.e., his $20. The CI told him, "later," and Clements left. A little while later, Fowler came back into the Club, went up to the CI and Murray at the bar near the entrance, and began to yell at them for not giving Clements Fowler's money. The CI or Murray apparently told Fowler to keep it down, because Fowler informed them that he had seen the Respondent leave, apparently to assure them that it was safer now (even though Brunette still was there). While Agent Murray handed Fowler the money, the CI explained to Fowler that they were not sure Clements would give Fowler the money and that they wanted to give it to him personally. This seemed to satisfy Fowler. Brunette was able to hear Fowler arguing loudly with Murray and the CI and did not intervene or try to find out what the argument was about. But the evidence did not prove that Brunette could hear or could tell what it was that they were saying. The CI and Agent Murray were back at the Club on September 10, 1991. Apparently, there was no one inside to sell them drugs, so the CI went outside. On his return, he told Murray that Fowler was outside "doing a deal." A while later, Fowler came into the Club and joined them. He held a small brown bag up to about chest level to show them the crack inside and then gave it to them. Agent Murray gave Fowler $20. During the conversation between the CI and Fowler on September 10, 1991, the CI asked if Fowler was "back in with " the Respondent, to which Fowler answered that he was. The evidence was not clear whether the CI meant, or that Fowler understood, anything by the question other than that the CI thought Fowler was barred from the Club and was surprised to see him back inside. The CI also asked Fowler if Fowler worked at the Club. Fowler glanced back at the CI, making a face as if to ask, "are you crazy?" and answered, "no way." The CI then asked, "you mean [the Respondent] wants to bar you but still wants you to do favors for him?" and Fowler answered, "yes." However, again, the meaning of this exchange was ambiguous. There were about ten people in the Club during the transaction on September 10, 1991. No extraordinary effort was made to hide the transaction. The Respondent was not there. The bartender on duty, Debra, was new and did not work at the Club very long before her employment was terminated. The evidence was not clear whether she witnessed the transaction or heard the conversation, or heard or saw anything suspicious (although it is possible that she did.) The transaction took place on the side of the bar opposite the entrance to the Club, between the bar and the right hand perimeter wall of the premises, half way to the corner where the "U"-shaped bar "dead-ends" on that side into the front perimeter wall of the inside of the premises. Although customers generally circulate fairly regularly throughout the premises, there generally is much less traffic in this area since it near the "dead end." See Finding of Fact 22, above. There were people playing dominos at a low table in the corner behind the bar where the transaction occurred, but it was not proven that the transaction could have been observed from the domino table. The evidence did not prove that anyone in the bar during the transaction on September 10, 1991, other than the participants, observed the drug deal or heard any of the related conversation. The CI and Agent Murray returned to the Club on September 13, 1991. The Club was crowded; there were 20-25 people there. Lena was tending bar; the Respondent's wife was in the package store; the Respondent himself was not there. At one point, while the CI and Murray were seated at the bar, a man called "Big John" Polite walked up to them, and the CI told him that Murray wanted "a 20." Polite asked if they wanted to do the deal in the Club, and the CI said, "yes." Polite left to go to the men's room, where he said his crack was, and returned to where they were sitting. He walked up between them and passed the crack to the CI under bar level. The CI passed it to Murray, who put it on a napkin on the bar counter top, wrapped it up, and put it in her pocket. Murray then passed $20 to Polite. The man sitting next to Murray at the bar on September 13, 1991, easily could have seen the crack, but the evidence did not prove that he did, or that he would have known what it was. Others also could perhaps have recognized that a drug transaction was occurring, but the evidence did not prove that anyone else in fact knew it was happening. With the juke box playing, and the crowd making noise, probably only someone actually involved in the conversations with Polite would have been able to hear them. When the CI and Agent Murray were in the Club on September 17, 1991, it was again crowded, with about 25 people inside. Brunette and a man named Carl were tending bar. There was confusion in the testimony as to who Carl was. The CI understood him to be the Respondent's cousin, Carl Jordan. The Respondent testified that he had no cousin named Carl Jordan. He admitted he had a cousin name Carl Warmack, who sometimes accompanied him to the Club, but said his cousin Carl was severely retarded and incapable of tending bar or doing anything other than simple menial chores. The CI and Agent Murray did not seem to think that the person they identified as Carl Jordan was retarded. Seated at the bar on September 17, 1991, on the side where there is less traffic circulating, 12/ Murray and the CI observed an unidentified female patron holding three crack "rocks" in her open palm while fingering them with her other hand. She did this in the open so that others seated on that side of the bar also would have been able to see. But it was not proven that anyone else in fact saw what she was doing or knew she had crack in her hand. A little later, Clyde walked up to them, and Murray asked for "a 20." Clyde left and returned shortly to pass some crack to Murray under bar level. Murray put the crack in her pocket and passed $20 to Clyde. "Carl" did nothing about the drug deal between Clyde and Murray. Much of the time while this transaction was taking place, "Carl" was talking to the CI within about three feet from where Murray was sitting. He could have seen the transaction but the evidence did not prove that "Carl" in fact saw it or knew it was taking place. Nor did the evidence prove that Brunette saw the transaction or knew it was taking place. On September 19, 1991, Agent Murray and the CI again went to the Club. Lena was tending bar. The Respondent's daughter also was there. It was crowded, with about 25 people inside. During the time they were there, Murray saw Clyde and asked him for "a 20." Clyde pulled a small brown bag out of his shirt pocket, took out three pieces of crack, and passed them to Murray below the level of the bar where they were sitting. Murray then passed Clyde $20. There were people sitting all around the bar, but the evidence did not prove that anyone saw the transaction to that point. Then, Murray held the crack up for Lena to see and asked her if it was "hard white," a common illegal drug dealing slang intended to describe the potentially dangerous kind of crack that is "cut" with baking soda. Lena lit a cigarette lighter to see it better, looked at it for a moment and answered, "it looks beige to me." Crack that is "cut" in the acceptable manner has a beige-like color and is referred to as "beige" in illegal drug dealing slang. It is found that Lena was using the drug dealing slang. On September 26, 1991, Agent Murray and the CI were at the Club sitting at the bar. The CI called over to a man named David Glover, a/k/a Jake, who was playing dominoes. Glover came over and sat in the bar stool next to the CI. There, Glover sold the CI crack for $25. There were 15-20 people in the Club on September 26, 1991. No extraordinary effort was made to hide the transaction. But neither was the transaction done in an open manner for all to see. This transaction took place on the side where there is less traffic circulating. See Finding of Fact 61, above. However, after the deal, the CI called the bartender, Debra, over and asked for a napkin. He put the crack on the napkin on the bar counter top and asked her if she knew what it was. She looked at it and, knowing what it was, simply said, "you better get it off the bar." Debra was terminated shortly afterwards for reasons not disclosed by the evidence. (The Respondent said only that "she didn't work out.") According to the evidence, Agent Murray's last visit to the Club Zanzibar was on October 8, 1991. She and a backup sat at the part of the bar closest to the domino table. Clyde walked up, and Murray asked for "a 20." She gave him $20, and Clyde went to the domino table to talk to someone and then left. The unidentified person with whom he had spoken came over and told Murray that he could get whatever she wanted if Clyde couldn't. Murray told him that Clyde had just left with her money and that she hoped Clyde had what she wanted. A little later, Clyde returned and passed Murray a crack "rock" at the bar under bar level height. After the deal with Clyde, the Respondent walked behind and past where Clyde and Murray were, but the evidence did not prove that the Respondent saw anything suspicious occurring. After the drug deal with Clyde, Murray beckoned to the unidentified male with whom she had spoken earlier. He gestured acknowledgement and came over shortly. Murray asked him for $10 worth of crack. He said he would get it and returned shortly to say it would have to be "a 20." Murray said, "OK," and passed him a $20 bill. He passed her the crack at waist level as he walked past her. There were about 15 people in the Club on October 8, 1991. The Respondent was there. Brunette and "Carl" were behind the bar. No extraordinary effort was made to hide the transaction. But neither was the transaction done in an open manner for all to see. From where Murray was sitting, her back and Clyde's back were between the transaction and the domino table. The unidentified pusher sneakily slipped the crack to Murray as he walked past between her and the vantage from the domino table. The evidence did not prove that anyone in the bar during the transaction on October 8, 1991, other than the participants, observed the drug deal or heard any of the related conversation. The Respondent testified that he later barred Clyde for drug activity. On or about October 10, 1991, the Club Zanzibar was raided by Tampa Police, arrests were made, and an Emergency Suspension Order issued by the Department was served. The Club has not been in operation since then. There is no evidence that the Respondent ever asked the Division or the Tampa Police for help in controlling illegal drug use on his premises. He did not ask the police to send undercover agents into the area and his establishment to make cases against customers who broke the drug laws or to "test" his employees. There is no evidence that the Respondent gave the Tampa Police intelligence information regarding the source of illegal drugs in the area. Nor did he work as closely or as diligently with local community leaders as he could have. Since the Club Zanzibar has been closed, illegal drug activity in the immediate vicinity has decreased markedly. This is a common occurrence for some period of time after a police raid. Longer periods of decreased drug activity also can be explained by the arrest of some of the participants in the illegal activities and by the fewer number of people in the area, which translates to fewer potential drug buyers in the area. The extended duration of decreased illegal drug activity after the raid in this case (almost two months, through the time of the final hearing) is somewhat unusual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order suspending the Respondent's license for six months from entry of final order and fining the Respondent $1,000. RECOMMENDED this 21st day of February, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1992.
Findings Of Fact Based on the stipulations of the parties, the exhibits received in evidence, and the testimony of the witnesses at the hearing, I make the following findings of fact. Sweet's Lounge, Inc., held alcoholic beverage license number 16-350, Series 2-COP, for the location of Sweet's Lounge, 706-710 Northwest First Street, Dania, Florida, at all times relevant to the charges in this case. On April 24, 1985, Beverage Investigator Frank Oliva drove his automobile to the front of the premises of Sweet's Lounge. He was approached by a male who asked what he wanted, and Oliva responded that he wanted "Boy," a street name for heroin. The male answered that he did not have any. Another male approached Oliva, who again indicated that he wanted some "Boy". Oliva observed the male enter the premises of Sweet's Lounge. Beverage Investigator Alphonso Junious was inside the licensed premises of Sweet's Lounge and observed the entire transaction with Oliva. He observed the male enter the premises of Sweet's Lounge and approach a female patron known as Ramona, who handed the male a tinfoil package. The male returned to Investigator Oliva and exchanged the tinfoil package for $20.00. The male then reentered Sweet's Lounge and gave the $20.00 to Ramona. The substance alleged to be heroin was laboratory analyzed to contain no controlled substances. On April 25, 1985, Beverage Investigator Frank Oliva returned to the front of the premises of Sweet's Lounge. He discussed the purchase of some "Boy" from an individual named William Rainey. Rainey went inside the premises of Sweet's Lounge and returned with a tinfoil package which he delivered to Oliva in exchange for $20.00. The substance alleged to be heroin was laboratory analyzed to contain no controlled substances. On April 25, 1985, Investigator Junious returned to the premises of Sweet's Lounge. The on-duty barmaid, Beatrice, left the premises for a short time and asked a female, later identified as the barmaid Linda, who was sitting at the end of the bar counter smoking a marijuana cigarette, to watch the bar until Beatrice returned. Beatrice said nothing to Linda about the marijuana cigarette. Linda walked behind the bar and continued smoking the marijuana cigarette while performing bartending duties. When Beatrice re-entered the premises, Ramona was standing in the doorway handing a tinfoil package to a male in the view of Beatrice. Junious entered into conversation with Ramona and, during the conversation, Ramona delivered a small tinfoil package to an unknown male patron. Investigator Reylius Thompson was also inside the premises of Sweet's Lounge on April 25, 1985. He observed several patrons smoking marijuana cigarettes, which he was able to identify through their appearance, smell, and the manner of smoking. On May 1, 1985, Investigators Junious and Thompson returned to the licensed premises of Sweet's Lounge. They observed the bartender Beatrice seated at the bar counter with two male patrons who were smoking a marijuana cigarette. After the bartender Linda came on duty, the officers observed her remove a marijuana cigarette from her purse and begin to smoke it behind the bar counter. Junious asked Linda for change for a $20.00 bill so he could buy cocaine. Linda asked what Junious wanted, and he told her a $10.00 piece of cocaine. Linda removed a tinfoil package of cocaine from her purse behind the counter and sold the cocaine to Junious for $10.00. While Investigator Thompson was seated at the bar on May 1, 1985, he also asked Linda for some cocaine. Linda again removed a tinfoil package of cocaine from her purse and delivered it to Thompson in exchange for $10.00. On May 3, 1985, Investigators Junious and Thompson returned to the licensed premises of Sweet's Lounge. While Beatrice was bartender, Junious observed several patrons smoking marijuana cigarettes. After Linda came on duty, Junious asked to purchase $10.00 piece of cocaine from her. Linda requested Beatrice to hand her her purse, from which she removed a tinfoil package of cocaine. Junious observed a plastic bag containing numerous tinfoil packages inside of Linda's purse. Linda sold the package of cocaine to Junious for $10.00 While Investigator Thompson was sitting at the bar on May 3, 1985, he asked Linda for some cocaine. Linda asked Beatrice to pass her purse to her from behind the bar. Beatrice handed the purse to Linda and Linda took out a tinfoil package of cocaine which she sold to Thompson for $10.00 On May 8, 1985, Investigators Junious and Thompson returned to Sweet's Lounge. While the investigators were seated at the bar counter, they observed three male patrons also seated at the bar counter smoking a marijuana cigarette in the presence of Beatrice, the bartender. After Linda came on duty, Junious asked her for a $10.00 piece of cocaine. Linda removed her purse from behind the bar, removed a tinfoil package of cocaine from her purse, and sold the cocaine to Junious for $10.00. Later that evening, Thompson asked bartender Linda for a $10.00 piece of cocaine. She again removed a tinfoil packet containing cocaine from her purse and sold the cocaine to Thompson. ll. On May 10, 1985, Investigators Junious, Thompson and McKeithen went to Sweet's Lounge. Junious asked the bartender Linda for $10.00 worth of cocaine, and she replied that she only had rocks. Junious agreed to purchase the rocks and received a tinfoil package of cocaine from Linda, which she had removed from her purse behind the bar. Later that same evening, Investigator Thompson also asked Linda for $10.00 worth of cocaine. She removed from her purse a tinfoil package containing cocaine which she sold to Thompson for $10.00. That same evening Investigator Thompson observed a male disc jockey smoking marijuana in the presence of patrons and passing the marijuana cigarette to some of the patrons. On May 14, 1985, Investigators Thompson and McKeithen returned to Sweet's Lounge. Thompson observed four patrons seated at a table cutting a white powder and snorting it from the top of the table. He also observed Ramona and a male patron, while seated at the bar, snort a white powder through an empty cigarette paper tube in view of the bartender Beatrice. On May 15, 1985, Investigators Junious and Thompson returned to Sweet's Lounge. Junious asked the bartender Linda if she had any cocaine, and she responded that she did but Junious would have to wait until she served a customer. After serving a customer, Linda sold Junious a small tinfoil package containing cocaine for 510.00. Junious also observed several patrons smoking marijuana cigarettes, sniffing white powder, and removing tobacco from regular cigarettes, inserting white powder into the cigarettes, and smoking same. On that same date, Investigator Thompson also asked Linda for cocaine. She replied that she had rock or powder cocaine and Thompson ordered rock. Linda walked into the package store portion of the lounge and returned shortly to Thompson, handing him a tinfoil package containing a small rock of cocaine in exchange for $10.00. On that same date Thompson observed Ramona using an empty cigarette paper tube to snort a white powder. On May 22, 1985, Investigators Junious and Thompson entered the licensed premises of Sweet's Lounge. The officers observed patrons seated at the bar counter smoking a marijuana cigarette in the presence of bartender Beatrice. The officers also observed Ramona seated at a table with several male patrons, all of whom were snorting a white powder from the table top and smoking a white powder in cigarettes. On May 29, 1985, Investigator Thompson returned to Sweet's Lounge. He observed Linda smoking a marijuana cigarette behind the bar counter and observed Ramona sitting on the west side of the premises with a quantity of white powder on the table. Thompson approached Ramona, sat down next to her, and began to talk to her about cocaine. While Thompson was seated with Ramona another female patron smoked a marijuana cigarette. Later that same evening, Thompson asked bartender Linda for cocaine and she responded that she had rock or powder. He ordered powder and Linda removed a tinfoil package of cocaine from her purse, which she sold to Thompson for $10.00. On the majority of the occasions described above when the investigators were inside the premises of Sweet's Lounge, there was a pervasive odor of marijuana smoke throughout the entire premises. The white powder which was being sniffed by patrons on the licensed premises at the various times described above was cocaine. In brief summary, the following relevant events took place at the licensed premises during the period of the investigation: 4/24/85: A patron participated in sale of a counterfeit controlled substance. 4/25/85: A patron participated in sale of a counterfeit controlled substance, an employee smoked a marijuana cigarette while on duty, and a patron delivered two small tinfoil packages to other patrons, and several patrons smoked marijuana cigarettes. 5/01/85: Two patrons smoked a marijuana cigarette, an employee smoked a marijuana cigarette while on duty, and an employee made two sales of cocaine. 5/03/85: Several patrons smoked marijuana cigarettes, and an employee made two sales of cocaine. 5/08/85: Three patrons smoked marijuana cigarettes in immediate presence of an employee, and an employee made two sales of cocaine. 5/10/85: A disc jockey smoked marijuana and shared it with patrons, and an employee made two sales of cocaine. 5/14/85: Six patrons sniffed cocaine; two did so in immediate presence of an employee. 5/15/85: Several patrons smoked marijuana and sniffed cocaine, and an employee made two sales of cocaine. 5/22/85: Several patrons smoked marijuana cigarettes in the immediate presence of an employee and several patrons sniffed cocaine. 5/24/85: A patron had cocaine in open view on a table, a patron smoked a marijuana cigarette, an employee on duty smoked a marijuana cigarette, and an employee made one sale of cocaine. Mr. Ebbie Sweet was never on the licensed premises on any of the occasions described above when the investigators were on the licensed premises. At all times material to this case, Mr. Andrew Johnson has been the manager of Sweet's Lounge. The owner, Mr. Ebbie Sweet, has given the manager various instructions about the operation of the premises. The instructions include: (a) keep the premises clean, (b) keep drugs out of the premises, (c) tell all employees to do the same, (d) put up signs about what can and cannot be done on the premises [including a sign reading "No Drugs Allowed"], (e) post the DABT flyer, and (f) put a "no loitering" sign outside the premises. The "no loitering" sign has not worked very well. When Mr. Andrew Johnson is on the premises he spends most of his time in the package store portion of the premises and very little of his time in the bar portion. On one occasion prior to the events described above, the Dania Police Department told Mr. Andrew Johnson there was a drug problem in Sweet's Lounge. He told them to come in anytime they wanted to and to arrest anyone they wanted to. Mr. Johnson did not change any procedures at Sweet's Lounge after the Dania Police Department told him about drug problems. Mr. Andrew Johnson knows Ramona. He has never seen her buy or use drugs, but he has heard that she is suspected of being a drug user. Ramona was a frequent visitor at Sweet's Lounge. Mr. Ebbie Sweet is the president of and the principal functionary of Sweet's Lounge, Inc. A sister and a nephew of Mr. Sweet also have some nominal connection to the corporation, but neither of them is active in running the licensed business. Mr. Ebbie Sweet enjoys an excellent reputation in his community. He is active in community affairs and has engaged in various charitable activities for the betterment of his community. It has always been his desire to run a reputable business and if he had known what was going on inside the lounge he would have fired those involved and would have closed the place up himself. In sum: Mr. Ebbie Sweet appears to be a good citizen who was trying to do the right thing. Unfortunately, for both him and the community, he wasn't trying quite hard enough. Some time ago Mr. Ebbie Sweet's wife passed away. As a result of that misfortune Mr. Sweet slowed down a lot and became less active in many things, including the amount of time and energy he devoted to the licensed business. He had at one time visited the licensed premises on a regular basis, but during the past ten months he only made a couple of trips a month to the licensed premises, and those were primarily to check on the inventory. During the past ten months he has hardly ever visited the licensed premises after dark. Mr. Sweet was relying on Mr. Andrew Johnson to manage things for him at the licensed premises even though he knew that Mr. Johnson was not the most reliable of managers. As Mr. Sweet put it, Mr. Johnson "has a few faults." Some years ago Mr. Sweet had an alcoholic beverage quota license which permitted him to sell all types of alcoholic beverages at Sweet's Lounge. When he had that license he had written instructions for his employees, he had doormen, and he had security guards. Since he sold the quota license and obtained his present license (which is limited to beer and wine sales), he has not had written instructions for his employees, he has not had doormen, and he has not had security guards. Mr. Sweet does not perform polygraph examinations or background checks on his employees. He has thought about hiring undercover people to patrol the premises, but has never done anything about it. The area of town in which Sweet's Lounge is located is one in which controlled substances are readily obtainable. Sweet's Lounge has had a recurring problem with undesirable people loitering in front of the lounge, people Mr. Sweet described as "hoodlums." All of the employees who worked in the bar portion of the licensed premises knew that marijuana and cocaine were being used by patrons inside the licensed premises on a regular, frequent, and flagrant basis. None of the employees took any action to prevent, discourage, or terminate the use of controlled substances by patrons. The foregoing findings of fact include the majority of the findings of fact proposed by the Petitioner. They do not, however, include any proposed findings based solely on the testimony of Investigator McKeithen. Some of the proposed findings based on McKeithen's testimony are irrelevant to the disposition of this case. Other proposed findings based solely on McKeithen's testimony are rejected because much of her testimony was neither persuasive nor convincing. While I have no doubts at all about her candor, honesty, or integrity, I have certain doubts about her attention to detail and her ability to recall and describe with accuracy events that took place in her presence. In making the finding that the employees who worked in the bar portion of the licensed premises were aware of the extensive use of drugs by patrons, I have not overlooked the testimony of the employees denying such knowledge. I find the denials to be unworthy of belief in light of all the other evidence in the record.
Recommendation For all of the foregoing reasons it is recommended that the Director of the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking alcoholic beverage license number 16-350, series 2-COP issued to Sweet's Lounge, Inc., for the premises located at 706-710 Northwest First Street, Dania, Florida. DONE AND ORDERED this 16th day of August, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 16th day of August, 1985. COPIES FURNISHED: Louisa Hargrett, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Chesley V. Morton, Esquire 604 Southeast Sixth Avenue Ft. Lauderdale, Florida 33301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr. Secretary The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact During the month of September 1988, petitioner, David J. Caplan, agreed with, unbeknownst to him, a special agent with the Drug Enforcement Administration to secure and deliver to the agent 12 kilograms of cocaine for $16,500 per kilogram (kilo). On September 27, 1988, petitioner picked up one kilo of cocaine from his supplier and transported it in his vehicle to his residence. Within his residence, petitioner met with the agent and a confidential informant (CI), and delivered the one kilo of cocaine to the agent in exchange for $16,500. On September 28, 1988, following negotiations regarding the purchase of the balance of the cocaine, petitioner picked up two kilos of cocaine from his supplier, transported it by truck to his residence, and hid it in a garbage can adjacent to his garage. Upon the arrival of the agent and CI, petitioner removed the cocaine from the garbage can, and displayed it to the agent inside his residence. After examining the cocaine, the agent and CI left the residence under the announced intention of going to get the money for the purchase of the two kilos, and once away from the residence the agent gave the signal to other agents for petitioner's arrest. Upon arrest, petitioner cooperated with the agents, and directed them to the two kilos of cocaine, which he had hidden in the rafters of his garage. 1/ Subsequently, petitioner was charged and pled guilty to trafficking in cocaine. On February 21, 1990, respondent, Department of Revenue (Department), issued a Notice of Assessment and Jeopardy Findings which assessed a tax of $9,900, a penalty of $2,475, an additional penalty of $4,950, and interest of $1,589.25, together with interest thereon at the rate of $3.25 per day after February 21, 1990, against petitioner, pursuant to Section 212.0505, Florida Statutes. At petitioner's request, the Department reconsidered such assessment, and on May 7, 1991, issued a revised assessment against petitioner, assessing a tax of $9,900, a penalty of $2,475, and interest of $1,589.25, together with interest at the rate of $3.25 per day after February 21, 1990. The factual basis for the assessment was the petitioner's involvement in the cocaine transactions described in the foregoing findings of fact. Petitioner filed a timely petition seeking a formal hearing to contest the Department's assessment. At hearing, petitioner contended that the cocaine in question was not his, that he merely acted as a go-between for the agent and his supplier, and that he was therefore not involved in any sale, use or distribution of the subject cocaine. Moreover, with regard to the second transaction, which involved the two kilos of cocaine, petitioner contended that no liability for any tax could attach because the sale was not consummated, i.e.: petitioner had not yet actually exchanged the cocaine with the agent for the agreed purchase price. Petitioner's contentions regarding the limited nature of his involvement is contrary to the credible proof, and petitioner's contentions regarding the implications of that participation are contrary to the law, discussed infra. Succinctly, petitioner actively participated in the transportation, storage, distribution and sale of the cocaine, and he is subject to the implications of such activity under the provisions of Section 212.0505, Florida Statutes. Notwithstanding his active participation in the sale of the cocaine, petitioner averred at hearing that such participation was not voluntary. Rather, petitioner contended that his participation resulted from pressure asserted by a friend of long standing (Lupo) who, unbeknown to him, had become a confidential informant. 2/ According to petitioner, Lupo pressured him into locating a supplier of cocaine for the agent and CI involved in the subject transactions, as a consequence of hounding him for an old $1,600 debt petitioner had incurred for purchasing cocaine at a time he was addicted to the drug, and by an oblique remark the confidential informant made that "he knew my kid played outside," which petitioner averred he interpreted to be a threat to do something to his son. Petitioner's contention that his participation in the subject transactions was not voluntary or, stated differently, that he was entrapped, is rejected as contrary to the more credible proof. Here, the proof demonstrates that petitioner's motivation was financial and that he had a familiar relationship of long standing with Lupo and his ultimate supplier (Greenburg) which, coupled with the lack of sincerity and precision to his testimony, make his protestations of duress ring hollow. Regarding his financial motivation, the proof demonstrates that when approached by Lupo, petitioner was financially strapped, and stood to make $500 for each kilo he could deliver. Had the entire transaction been consummated for the agreed 12 kilos, petitioner stood to make a quick $6,000. Regarding the relationships that existed, the proof demonstrates that petitioner had been friends with Lupo and Greenberg for over twenty years, had actually lived with Greenberg for ten years, and that there was no apparent change in that relationship when he was approached by Lupo and introduced to the agent in this case. Considering the length of their relationship, and the lack of conviction in petitioner's testimony, it is concluded that petitioner's participation in this transaction was not compelled by any threat from Lupo, but by his own financial needs. In sum, the proof supports the conclusion that petitioner did engage in the unlawful sale, use, distribution, transportation or storage of cocaine as set forth in the Notice of Assessment and Jeopardy Findings, and that the Department's assessment of tax, penalty and interest set forth in its revised assessment was reasonable and appropriate.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order concluding that petitioner, David J. Caplan, is liable for taxes, penalties and interest pursuant to Section 212.0505, Florida Statutes, and assessing the amount of such liability at $13,964.25, plus interest at the rate of $3.25 per day from February 22, 1990. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of March 1992. WILLIAM J. KENDRICK 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 30th day of March 1992.
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.
The Issue This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent is guilty of misconduct involving the possession of cocaine. There is very little dispute regarding the facts in this case. The primary dispute concerns the determination of the appropriate penalty to be imposed.
Findings Of Fact The Respondent, Alton J. Roberts, holds teaching certificate number 584629 issued by the Florida Department of Education. His certificate is in the area of Physical Education and is valid for the period 1991-1996. At all times relevant and material to this proceeding, the Respondent has been, and continues to be, employed as a school teacher with the Dade County School System. He has been teaching in this capacity as a Physical Education teacher for approximately four years. On or about July 21, 1990, the Respondent and another adult male were in the process of driving from Miami to New York to return a van that belonged to the Respondent's brother. While the Respondent was sleeping and the other man was driving, law enforcement officers stopped the van for a traffic violation in the vicinity of Fort Pierce, Florida. As the van was coming to a stop, the driver woke the Respondent and told him that they were being stopped by law enforcement officers. When the van came to a stop, the driver got out first and went to speak to the officers. After the driver had gotten out of the car, the Respondent saw a small plastic container that he knew was the type of container customarily used for storing and sifting powdered cocaine. In an effort to conceal the container from the law enforcement officers, the Respondent picked up the container and put it in one of his back pockets. A few minutes later when the Respondent was asked to step out of the van, the law enforcement officers discovered the container in the Respondent's back pocket. Further examination of the container removed from the Respondent's back pocket revealed that it contained a small amount of white powder. The white powder was not weighed, but was perhaps as much as a gram in total weight. Described otherwise, the volume of the powder in the container removed from the Respondent's pocket was less than the volume of powder that would result from a crushed aspirin. The white powder was field tested and it tested positive for cocaine. As a result of the events described above, the Respondent was arrested and charged with felony possession of cocaine and possession of drug paraphernalia. On February 25, 1991, the Respondent entered a plea of nolo contendere to the charge of possession of cocaine and the other charge was dismissed. Adjudication was withheld and the Respondent was placed on probation for a period of two years. The Respondent was also required to perform 150 hours of community service, to pay $725.00 in court costs and fines, to pay $50.00 per month toward the cost of his probation supervision, and to receive a substance abuse evaluation. The Respondent has complied with all of the court-ordered requirements. The Respondent does not use cocaine. There is no evidence that the Respondent has been involved in any way with cocaine or any other illegal drugs at any time before or after the incident on July 21, 1990. The Respondent's arrest and subsequent court proceedings did not receive any notoriety in the Dade County area. The Respondent reported the matter to the principal of the school where he is employed. The principal reported the matter to administrators of the Dade County School System. After review of the matter, the administrators of the Dade County School System allowed the Respondent to continue to be employed as a teacher. Between the date of his arrest and the date of the hearing, the Respondent has taught all of one school year and most of a second school year. No evidence was offered of any problems or irregularities in his teaching during that period, nor was any evidence offered of any lack of effectiveness as a teacher during that period.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case concluding that the Respondent is guilty of a violation of Section 231.28(1)(c), Florida Statutes, as charged in the Administrative Complaint, and imposing a penalty consisting of the following: Issuance of a written reprimand from the Education Practices Commission to be placed both in the Respondent's certification file and in the Respondent's personnel file with the Dade County School System, and Placement of the Respondent on probation for a period of five years, the probation period to begin upon issuance of the Final Order and to include such terms as may appear necessary and appropriate to the Education Practices Commission to monitor the Respondent's performance as a teacher during the period of probation, including a provision for random drug testing of the Respondent at the request of the Education Practices Commission and at the expense of the Respondent. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 28th day of April, 1992. 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 20th day of April, 1992.
Findings Of Fact At all pertinent times, Aubrey Moran, who holds a Florida pharmacist's license, No. 0010982, was the managing pharmacist and the dispensing pharmacist at Lake Mary Pharmacy, 185 North Country Club Road, Lake Mary, Florida, a community pharmacy that holds permit No. 0007301. Half a block away from Lake Mary Pharmacy Robert L. Bevier, M.D., who was then Lake Mary's "principal general practitioner," had his office. COCAINE In the fall of 1981, Dr. Bevier brought respondent an article from a medical journal, which read, as follows: Make Your Own TAC; It Works Well Atlanta--An Atlanta emergency physician has reported good results with a topical anesthetic called TAC made of tetracaine, cocaine, and epinephrine. Dr. Michael Kessler, director of a seminar on Outpatient Surgical Techniques for the Non-Surgeon, said his group at a freestanding emergency clinic sees large numbers of pediatric patients, and TAC has worked well as a topical anesthetic for children as well as adults. The recipe for TAC (taken from the January 1980 Journal of the American College of Emergency Physicians, according to Kessler) calls for 300 mg. tetracaine hydrochloride powder; one-fourth ounce (7,090 mg.) cocaine flakes; 30 cc 1:1000 inject epinephrine, and distilled water. The tetracaine is dissolved in a small amount of distilled water; the epinephrine and cocaine added; and the mixture combined with distilled water to make 60 cc volume. It should be stored in a brown bottle and has a shelf-life of 21 to 30 days. Dr. Bevier asked Mr. Moran to compound some of this mixture. Mr. Moran did not keep cocaine in stock ordinarily, but he acquired some from a wholesaler and dispensed 60 cc. amounts of the TAC solution to Dr. Bevier on three occasions. On each occasion Dr. Bevier wrote a prescription for himself on a form on which "AB 8796510" appeared just under his signature. The prescriptions were dated September 8, November 3 and November 23, 1981, and were filled on the dates written, except for the first, which was not filled until September 14, 1981, perhaps because of a delay in obtaining ingredients. Mr. Moran was under the impression that Dr. Bevier was using the solution as a local anesthetic in his practice for procedures like the removal of warts. Solutions of this type are also used to anesthetize mucous membranes. Cocaine in solution with epinephrine is of no use to an abuser. Deposition of Charles L. Park, p. Testimony of Respondent. (T. 112) In early December of 1981, Dr. Bevier asked Mr. Moran for the TAC ingredients to keep on hold in his office so that he could mix the solution up along, as needed. Mr. Moran's only information about shelf life was what he had read in the article from the medical journal Dr. Bevier had shown him. He did in fact deliver the ingredients to Dr. Bevier, including four quarter ounce packages of cocaine hydrochloride flakes, on December 3, 1982. Dr. Bevier signed the official Drug Enforcement Administration form (DEA 222) required in connection with this transaction, and delivered it to the pharmacy. INVESTIGATOR ARRIVES After the cocaine flake purchases, Will A. Merrill, an investigator for petitioner Department of Professional Regulation visited Mr. Moran in the course of investigating Dr. Bevier. On May 27 and 28, 1982, Mr. Merrill examined respondent's records, and talked to Mr. Moran. Precisely what was said is a matter of dispute. At the very least, Mr. Merrill advised Mr. Moran that irregularities in Dr. Bevier's record keeping regarding Schedule II drugs were being looked into. Cocaine, Demerol (Meperidine) and Dilaudid are all controlled substances, and are listed on Schedule II in Chapter 893, Florida Statutes. The investigation culminated in an emergency suspension of Dr. Bevier's license to practice medicine on September 12, 1982. Thereafter the investigation of respondents began. DEMEROL AND DILAUDID Lige Williams, a cancer victim, was Dr. Bevier's stepfather. On July 14, 1982, and again on August 2, 1982, Mr. Moran filled prescriptions for Mr. Williams written by Dr. Bevier, each for sixty 100 milligram tablets of Demerol. He dispensed the medicine to Mr. Williams. On August 9, 1982, Mr. Moran dispensed a 20 milliliter ampule of Demerol to Dr. Bevier for office use after Dr. Bevier signed the appropriate Form 222. Dr. Bevier himself came into Lake Mary Pharmacy with a prescription for one hundred 100 milligram tablets of Demerol for Lige Williams on August 13, 1982, and Mr. Moran filled the prescription. On August 16, 1982, Mr. Moran dispensed a second 20 milliliter ampule of Demerol to Dr. Bevier for office use, again after Dr. Bevier signed the appropriate Form 222. Three days later Dr. Bevier presented another prescription for a hundred 100 milligram tablets of Demerol for Lige Williams, which Mr. Moran filled. On August 26 and September 8, 1982, Dr. Bevier signed two more Form 222s and Mr. Moran dispensed two more 20 milliliter ampules of Demerol for office use. Dr. Bevier told Mr. Moran that the Demerol ampules were "primarily . . . for Mr. Williams' use." (T. 103) The parties stipulated that Mr. Moran dispensed another fifty 100 milligram tablets of Demerol at some time "from or about May 1, 1981 until August 30, 1982" to unspecified person(s) under unspecified circumstances. On September 9, 1982, Mr. Moran filled a prescription Dr. Bevier wrote and personally presented for Lige Williams for 100 four milligram tablets of Dilaudid. When Mr. Moran questioned the quantity of tablets, Dr. Bevier said that Lige Williams was leaving Lake Mary to go back to his own home and that he "want[ed] him to have enough tablets to get him up there and hold him until he can be seen by a physician up there." (T. 93) Dilaudid and Demerol in the sequence and dosages to be inferred from the prescriptions Mr. Moran filled for Mr. Williams, even assuming Mr. Williams received the full contents of all four ampules, are commonly and appropriately prescribed for terminally ill cancer patients, according to the uncontroverted medical testimony.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaints filed against respondents. DONE and ENTERED this 21st day of June, 1984, in Tallahassee, Florida. ROBERT T. BENTON II 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 21st day of June, 1984. COPIES FURNISHED: Bruce D. Lamb, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 W. C. Hutchison, Jr., Esq. Hutchison & Mamele 230 North Park Avenue Sanford, Florida 32771 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wanda Willis, Executive Director Department of Professional Regulation Board of Pharmacy 130 North Monroe Street Tallahassee, Florida 32301
