Findings Of Fact Between June 6 and October 3, 1980, Petitioner's beverage officers and representatives of the Polk County Sheriff's Department conducted an undercover investigation of the Oasis Lounge in Ft. Meade. The business is operated by Milton Haverty who holds alcoholic beverage license No. 63-775. The manager- bartender during this period was John Haverty, the Respondent's son. On June 12, 1980, Beverage Officer West and Sgt. Allen of the Polk County Sheriff's Department visited the licensed premises in an undercover capacity. On that date, Martha Ann Berry delivered a beer to Beverage Officer West and accepted his payment for it. Both Officer West and Sgt. Allen observed Berry serve beer to another patron. Berry had been reported to the Polk County Sheriff's Department as a runaway juvenile. However, there was no evidence presented in this proceeding to establish that she was under 18 years of age at the time she delivered the alcoholic beverages. During the June 12, 1980, undercover visit to the licensed premises, the investigators openly discussed stolen property and were subsequently approached by John Haverty who asked that they obtain a T.V. set for him. Haverty and Sgt. Allen had further discussions about the T.V. set and a "stolen" outboard motor on June 20 and 24, 1980, again on the licensed premises. On June 27, the motor which was represented as stolen property was delivered to Haverty. In exchange for the motor, Haverty gave Allen three bags of marijuana (less than 20 grams) The transaction took place on the licensed premises. A subsequent sale of electronics equipment represented to be stolen goods was made by Allen to John Haverty on the licensed premises October 3, 1980. Haverty paid Allen $75.00 for these items.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner dismiss the Notice to Show Cause. DONE AND ENTERED this 30th day of July, 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1981. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Milton Haverty Oasis Lounge 115 South Charleston Ft. Meade, Florida 33841
The Issue This case concerns an Administrative Complaint filed by the Petitioner against the Respondent. Count I to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13(1)(a) and 561.29, Florida Statutes, by actions of one of its agents, servants or employees, namely: Penny Reid, related to sales of the substance methaqualone, on July 26, 1981, and August 22, 1981. Count II to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of one of its agents, servants or employees, namely: Penny Reid, related to sales of the substance methaqualone, on July 16, 1981, and July 20, 1981, and September 9, 1981. In addition, there are allegations of a sale of lysergic acid diethylamid, on July 16, 1981. 2/ Count III to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13(1)(a) and 561.29, Florida Statutes, by actions of one of its agents, servants or employees, namely: "Eve" related to sales of the substance methaqualone, on August 14, 1981, and with the sale of the substance cocaine, on August 15, 1981. Count IV to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13(1)(a) and 561.29, Florida Statutes, by actions of one of its agents, servants or employees, namely: "Kitty," related to sales of the substance methaqualone, on August 15, 1981, and with the sale of the substance cocaine on September 26, 1981. Count V to the Administrative Complaint accuses the Respondent of violations of Sections 893.03, 893.13(1)(a) and 561.29, Florida Statutes, by actions of one of its agents, servants or employees, namely: "Orlando," related to sales of the substance cannabis, on July 26, 1981. Count VI to the Administrative Complaint accuses the Respondent of violations of Sections 893.03, 893.13(1)(a) and 561.29, Florida Statutes, by actions of one of its agents, servants or employees, namely: "Julie," related to sales of the substance cocaine on September 26, 1981. Count VII to the Administrative Complaint accuses the Respondent, between July 16, 1981, and October 2, 1981, of maintaining a place, namely the licensed premises, which was used for keeping or selling controlled substances, in particular methaqualone, cocaine and cannabis, in violation of Subsections 893.13(2)(a).5 and 561.29(1)(c), Florida Statutes. Count VIII contends that between July 16, 1981, and October 2, 1981, the Respondent, by actions of its agents, servants or employees and patrons, kept or maintained the building or place which was used for illegal keeping, selling or delivering of substances controlled under Chapter 893, Florida Statutes, and in doing so violated Section 823.10, Florida Statutes, and Subsection 561.29(1)(c), Florida Statutes. Count IX accuses the Respondent of allowing its agent, servant or employee, Annie D. Bryant, to unlawfully possess a controlled substance on the licensed premises, namely, marijuana, in violation of Section 893.13, Florida Statutes, and Subsection 561.29(1)(a), Florida Statutes. Count X accuses the Respondent of allowing its agent, servant or employee, Danita Buchin, to unlawfully possess a controlled substance on the licensed premises, namely, marijuana, in violation of Section 893.13, Florida Statutes, and Subsection 561.29(1)(a), Florida Statutes. Count XI accuses the Respondent of allowing its agent, servant or employee, Barbara Jean O'Rourke, to unlawfully possess a controlled substance on the licensed premises, namely, marijuana, in violation of Section 893.13, Florida Statutes, and Subsection 561.29(1)(a), Florida Statutes. Count XII accuses the Respondent, on April 20, 1981, through its corporate officers, directors, stockholders, employees, agents, or servants, of failing to file a sworn declaration of the transfer of voting stock of the corporate licensee, in violation of Rule 7A-3.37, Florida Administrative Code. Count XIII accuses the Respondent, through actions of its corporate officers, directors, stockholders, employees, agents, or servants, on May 4, 1981, of failing to notify the Petitioner of a change of corporate officers within ten (10) days of that change, in particular, within ten (10) days of the resignation of George and Florrie Pappas, as corporate officers and directors of the corporate licensee, in violation of Rule 7A-2.07(2), Florida Administrative Code.
Findings Of Fact Effective August 18, 1980, Pappas Enterprises, Inc., which trades or does business as Foremost Liquors and Hideaway Lounge, at 1005 East 49th Street, in Hialeah, Dade County, Florida, was licensed by the Petitioner to sell alcoholic beverages. At that time, the sole officers listed for the corporation were George and Florrie Pappas. George Pappas was listed as the sole shareholder. In May, 1981, Miguel Rodriguez purchased the shares in the corporation, Pappas Enterprises, Inc. At that time, in his attorney's office, he executed a personal data sheet and certificate of incumbency for the benefit of the Division of Alcoholic Beverages and Tobacco; however, this personal data sheet proposing Rodriguez as a new officer and shareholder of the subject corporation was not filed with the Division of Alcoholic Beverages and Tobacco until October 14, 1981. Furthermore, the first official request for change of corporate officers, owners and shareholders from the Pappases to Rodriguez was not filed with the Division of Alcoholic Beverages and Tobacco until November 4, 1981. Prior to October 14, 1981, the Respondent corporation, in the person of Miguel Rodriguez, was served with a Notice to Show Cause/Administrative Complaint containing the first eight (8) counts alluded to in the Issues statement in this Recommended Order. The date of this service was October 2, 1981. Subsequent to that time, an amendment was allowed adding the remaining counts to the Administrative Complaint. The Respondent, through actions of Miguel Rodriguez, in his effort to protect his interest in the Respondent corporation, which he had purchased, and in view of the fact that he had effective control of the licensed premises during all times pertinent to the Administrative Complaint, has requested a Subsection 120.57(1), Florida Statutes, hearing, following service of him at the licensed premises as agent in fact for the corporation. The hearing was allowed to go forward upon the request made by Rodriguez because Rodriguez's substantial interests are at stake. The requested transfer of ownership and substitution of officers filed on November 4, 1981, is unresolved pending the outcome of the proceedings herein. See Subsection 561.32(2), Florida Statutes. On July 15, 1981, in the evening hours, Beverage Officer, Louis J. Terminello, went to the licensed premises known as the Hideaway for purposes of conducting an undercover narcotics investigation. Once he had entered the premises, he spoke with one of the employees, Penny Reid, a dancer. Upon his inquiry concerning the subject of narcotics Reid told him that she would sell him methaqualone tablets for $3.00 each and lysergic acid diethylamid (LSD) for $5.00 per dosage. In order to consummate the transaction, she explained that she would need to leave the licensed premises. Around 12:15 A.M. on July 16, 1981, Reid approached Miguel Rodriguez and asked permission to leave the licensed premises. She was granted that permission and Reid and Terminello went to a residence location off the licensed premises where a purchase was made of ten (10) methaqualone tablets and four (4) units of LSD at the unit prices as have been indicated. The Beverage Officer and dancer then returned to the licensed premises around 1:30 A.M. On July 20, 1981, at around 9:45 P.M., Officer Robert Chastain entered the licensed premises and spoke with Penny Reid. This conversation ensued when Reid approached Chastain. The subject of drugs was discussed and subsequent to that time, Reid received permission to leave the licensed premises. (She was still employed by the Respondent.) On the date above, Reid and Chastain went to a residence and purchased ten (10) methaqualone tablets. The price for the tablets was $30.00. When they returned to the bar, while in the premises, Reid removed one methaqualone tablet from the napkins in which they were wrapped and gave Chastain nine (9) tablets. Terminello came back to the licensed premises on the evening of July 25, 1981, and spoke with the dancer Reid. During the conversation methaqualone was discussed and she indicated that she did not have that substance at the time. She said she might have some of the material available to her later that night. Reid left the licensed premises around 11:35 P.M. on July 25, 1981, to return around 11:55 P.M. While in the licensed premises she exchanged five (5) methaqualone tablets at $3.00 per tablet, in return for $15.00 on July 26, 1981. This transaction took place in the hall area near the rest rooms in the licensed premises and no effort was made on the part of Reid to disguise the transaction. On July .26, 1981, during his visit to the licensed premises, at approximately 1:30 A.M., Officer Terminello spoke to a man who identified himself as "Orlando" and who claimed to be a manager at the premises and the son of Miguel Rodriguez. In fact, "Orlando" was not a manager at the licensed premises nor the son of Rodriguez. During this conversation, Terminello asked "Orlando" where he could get coke, meaning the controlled substance cocaine. "Orlando" responded that he might get the cocaine on some occasion but not on that evening. "Orlando" did give Officer Terminello marijuana, also known as cannabis, a controlled substance. This item was given to Officer Terminello as he was departing the premises on July 26, 1981. Terminello returned to the licensed premises on August 14, 1981, around 9:45 P.M. On that evening, he spoke with a dancer identified to him as "Eve" who was later determined to be Eve Mae Carroll. Carroll was employed as a dancer in the licensed premises. While seated at a table near the front door, Carroll told Terminello that she would sell "quaaludes" meaning methaqualone at a price of $2.50 a tablet and a total of three (3) tablets. Terminello paid her the prescribed price and she delivered the substance methaqualone to him while seated at the table. She also indicated that she would sell him cocaine at a later time, in that she was expecting a delivery of that substance. At around 12:30 A.M. on August 15, 1981, a further discussion was held between Terminello and Carroll and while standing at the bar, Terminello purchased cocaine from Carroll. On August 15, 1981, at around 12:45 A.M., Terminello spoke with another dancer employed in the licensed premises who was identified as "Kitty" whose actual name is Kathleen Keddie, who explained to him that she had some "ludes," meaning methaqualone. She wanted $4.00 for each tablet and while seated at a table in the bar area, Terminello purchased two (2) methaqualone tablets from Kitty. On August 22, 1981, Terminello was back in the licensed premises at approximately 9:50 P.M. and was seated at the bar talking to Penny Reid who told him she was going to get some "ludes," methaqualone. This activity was to occur on her next break from dancing as an employee in the licensed premises. She left the licensed premises with a patron and returned at around 10:25P.M. and handed Terminello a paper towel containing five (5) methaqualone tablets for which he paid her $15.00. On September 9, 1981, Terminello was again at the licensed premises and was approached by Penny Reid. He asked her for "ludes or acid" meaning methaqualone or LSD, respectively. She told Terminello that she would have to go to a house to obtain these items. She then asked the manager to leave and Terminello and Reid went to the residence where methaqualone was purchased and suspected LSD as requested by Terminello. (She was still employed by the Respondent.) On September 16, 1981, while pursuing the investigation, Terminello again returned to the licensed premises and spoke with Reid who was still an employee at the premises. She told Terminello that she could go to a residence and obtain narcotics. At this time Terminello was accompanied by another Beverage Officer, Robert Chastain. After entering into a discussion on the evening in question, the two (2) officers went with Reid to an off-premises residence where methaqualone and suspected LSD were purchased. On this occasion, Reid took part of the methaqualone purchased as a "tip" and carried those methaqualone tablets back into the licensed premises when the officers and the dancer returned to the licensed premises. On September 19, 1981, Officer Terminello talked to Reid who remained employed at the licensed premises and the discussion concerned narcotics. Then they left the licensed premises and went to a residence where cocaine and methaqualone were purchased. Reid kept three (3) of the methaqualone tablets as a "tip" and she carried those methaqualone tablets back into the licensed premises when Terminello and the dancer returned to the bar. When they had returned to the licensed premises on September 19, 1981, Terminello was approached in the bar by a Michael Harrington who asked Terminello if he wanted to buy coke, meaning cocaine. Harrington then indicated that they should go out into the parking lot of the premises which they did and in the presence of another patron, Alexis Pagan, Terminello purchased a gram of cocaine. On September 25, 1981, Terminello returned to the licensed premises and spoke to an employee/dancer previously identified as Kathleen Keddie. Keddie told him that her "old man" could bring some cocaine into the premises and make some of it available to Terminello. This conversation took place around 9:45 P.M. on that evening. At approximately 12:05 A.M. on September 26, 1981, while seated at the bar, Terminello purchased approximately one (1) gram of cocaine from Keddie for $75.00. In the early morning hours of September 26, 1981, Terminello was also approached by a Julie Murphy who was employed as a cocktail waitress in the licensed premises and she told Terminello that she could sell him cocaine cheaper, at $55.00 a gram. She indicated she would serve as a go-between, intermediary, and told Terminello to leave the premises and come back later. Terminello left and returned at around 3:00 A.M., and while at the bar, purchased the cocaine from Murphy at the agreed upon price of $55.00. During the course of Terminello's investigation at the licensed premises, on a number of occasions he saw people sniffing what, from his expertise in law enforcement, appeared to be cocaine and, from the appearance and odor, using cigarettes thought to be marijuana. These activities occurred in the bathroom areas, halls and package store area. Augusto Garcia who was employed as a manager in the licensed premises was observed at times in the proximity of the activities referred to immediately above and Garcia was also observed by Officer Terminello in the men's room snorting what appeared to be cocaine. On one occasion Garcia was observed near the front door to the bar and package area where a marijuana type cigarette was being smoked in the presence of Garcia, by an employee who worked in the package store. Reid had also told Terminello that she had been fired as an employee at the licensed premises because she was so "luded" out that she fell off the stage. Nonetheless, she had been rehired. Terminello had observed Miguel Rodriguez in the licensed premises during the course of the investigation, mostly in the package store and on occasion in the bar area. Terminello did not speak with Rodriguez during the investigation. On October 2, 1981, the petitioning agency served the Notice to Show Cause/Administrative Complaint at the licensed premises. Following this service, an inspection was conducted in the licensed premises of the lockers of several dancers, for which the dancers had the keys. These dancers were employees at the licensed premises on that date. The search of the lockers and purses of the dancers led to the discovery of marijuana. The dancers in question were Annie D. Bryant, Danita Buchin and Barbara Jean O'Rourke. (Following the October 2, 1981, service of the Administrative Complaint on Miguel Rodriguez, and with Rodriguez's knowledge of the pendency of narcotics allegations being placed against the dancers, Kathleen Keddie, Annie D. Bryant and Danita Buchin, those individuals were allowed to remain as employees in the licensed premises.) During the time in question by the Administrative Complaint, Augusto Garcia acted as a manager in the licensed premises. He had been hired by Miguel Rodriguez. His normal hours of employment were 6:00 P.M. through as late as 4:30 A.M., except for Fridays and Saturdays when he worked a couple of hours. When he was on duty, Rodriguez was ordinarily at the licensed premises. Rodriguez had instructed Garcia to be cognizant of drug problems in the licensed premises and to keep the bar quiet and peaceful. In particular, Rodriguez had instructed Garcia not to allow drugs in the bar and if someone was found with drugs to throw him out. An individual identified as Hector who is a friend of Garcia's assisted in these matters. Garcia indicated the policy of management at the licensed premises was to check the person of the dancers and their bathroom and dressing area to discover narcotics. Nevertheless, testimony by Kathleen Keddie, a person implicated in these matters for narcotics violations and an employee at the bar as a dancer established the fact that she had never been searched for narcotics. Rodriguez was not told by Garcia about people selling drugs in the licensed premises, Garcia would simply "throw them out." Garcia did tell Rodriguez about people "sniffing" what he suspected to be cocaine. At the time Garcia served as a manager in the licensed premises, one Willie Rolack also was a manager in the licensed premises. Willie Rolack's duties as manager were primarily associated with the package store, in contrast to the bar, area. He would periodically go in the bar to check to see if there were fights occurring and to determine if drugs were being used. Rolack had been instructed by Rodriguez to call the Hialeah Police Department if persons who were using drugs would not depart the premises. At times, the Hialeah Police Department has assisted in removing those patrons. Additionally, some employees at the licensed premises had been dismissed for drug involvement as observed by Rolack. Miguel Rodriguez worked sixteen (16) to eighteen (18) hours in the licensed premises, mostly in the package store; however, he did have occasion to check the bar area while at the licensed premises. Rodriguez had told the dancers that he would not tolerate their involvement with drugs and he had instructed customers who were found with drugs that they should leave and not return. He had a policy of not allowing the dancers to leave the licensed premises except on occasion to go for food at nearby restaurants; however, as has been determined in the facts found, the occasions of the departures of the dancers were fairly frequent and not always for the purposes of obtaining food. Rodriguez, through his testimony, verifies a general policy of checking dancers' lockers and pocketbooks and watching their activities. The lockers as have been indicated before were controlled by the dancers themselves who had keys. Prior to July, 1981, and in particular, in June, 1981, one Alexis Pagan had worked as the bar manager and had been dismissed for drug involvement. Nonetheless, the same Alexis Pagan had been observed in the licensed premises during the times set forth in the administrative charges, to include the instance mentioned before.
The Issue Whether Respondent's beverage license should be suspended or revoked, or a civil penalty assessed, for an alleged violation of s. 562.12, Florida Statutes, pursuant to s. 561.29(1)(b), F.S., as set forth in Notice to Show Cause issued by Petitioner on March 28, 1977. The hearing in this case was scheduled for 9:00 A.M. on December 8, 1977 at Petitioner's business address in Tallahassee, Florida. Notice of Hearing was sent to the Respondent on November 21, 1977 by mail. The notice of hearing was not returned by the Post Office as being undelivered. Neither the Respondent nor any representative in her behalf appeared at the hearing. Accordingly, the Hearing Officer advised counsel for the Petitioner that the matter would be conducted as an uncontested proceeding.
Findings Of Fact The Respondent Margaret P. Muse operates Club 40 located at Midway, Florida, and is authorized to sell beer and wine for consumption on the premises incident to a Class 2-COP license issued by the Petitioner. On August 15, 1976 at approximately 12:05 P.M., Gary Sams, a beverage officer with the Tallahassee field office of the Petitioner, accompanied by a reliable informant, went to the vicinity of Respondent's licensed premises. There, Sams searched the informant and found that he possessed no alcoholic beverages or currency. Sams gave the informant $5.00 and told him to go to the residence immediately east of the licensed premises. The informant entered the house, remained approximately 5 minutes and returned to Sams with a one-half pint unsealed bottle of Calverts Extra whiskey and a twelve-ounce sealed can of Schlitz beer in his possession. The informant told Sams that he had purchased the liquor from one Lou Ethel Palmer for $2.75 and that she had obtained it from a room in the house. Sams and the informant initialed the containers and Sams took them to the evidence room of his agency where they remained until the date of the hearing (testimony of Sams, Petitioner's Exhibit 1). On August 22, 1976 at approximately 10:30 P.M., Sams returned to the premises with the same informant, and followed the same procedures as to a prior search of his person and directions to enter the residence again. Sams observed the informant do so where he remained for a period of time and then returned to Sams outside and turned over a one-half pint unsealed bottle of Calverts Extra whiskey. The informant stated that while in the residence, he had ordered the whiskey from Palmer, but that another female in the house had gone outside to obtain the whiskey. When she returned with it, the informant paid her $2.75 for the same. By the informant's description of the female who had sold the whiskey to him, Sams determined that she was the Respondent Margaret P. Muse. The two men initialed the container and Sams placed it in the evidence room of his agency where it remained until the date of this hearing (testimony of Sams, Petitioner's Exhibit 2) On August 23, 1976, warrants authorizing search of the Palmer residence were obtained by Petitioner. On August 29, Sams and deputy sheriffs of Gadsden County proceeded to the residence in question where they were admitted by Muse. Arrest warrants were served on Muse and Palmer and the premises were searched. In the bedroom several half pints of vodka and whiskey were found and seized. Two cases of 12-ounce cans of Schlitz beer were found in an outbuilding adjacent to the house and also seized. Muse stated at the time that the beer was being stored in the outbuilding for the purposes of sale at the licensed premises (testimony of Sams).
Recommendation That the charge against Respondent, Margaret P. Muse, be dismissed. DONE and ENTERED this 16th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Francis Bayley, Esquire Department of Business Regulation The Johns Building Tallahassee, Florida Mrs. Margaret P. Muse P.O. Box 116 Midway, Florida 32343 PETITIONER'S EXHIBIT 1 One half-pint bottle labeled "Calvert Extra" (half full of liquid) One sealed can (12 ounce) Schlitz beer PETITIONER'S EXHIBIT 2 One full unsealed half-pint bottle labeled "Calvert Extra"
The Issue The issues to be resolved in this proceeding concern whether the Respondent's beverage licensure should be subjected to sanctions for allegedly selling alcoholic beverages to a minor and what if any penalties should be imposed.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating licensure, and practice under that licensure, of alcoholic beverage-selling entities in the State of Florida, including administration of the laws and rules related to the selling of alcoholic beverages by restaurant businesses. The Respondent is an entity licensed and domiciled in the State of Florida and authorized to sell alcoholic beverages under license number 55-00306, Series 2-COP. The Respondent is subject to the Division's regulatory jurisdiction. The subject license allows the Respondent to make sales "by the drink" for consumption on the premises at the restaurant business located at 1766 S. Eighth Street, Fernandina Beach, Florida. On October 22, 2002, Ms. Deidre Kaye Miller, then 18 years of age, was employed as an I.A. by the Petitioner Agency for the purpose of attempting to purchase beer at the Respondent's restaurant. She was paid a total of $35.00 for her services as an undercover operative that day by the Division. She was given instructions by Agent Edwards and Agent Maxwell to attempt to purchase an alcoholic beverage from the Respondent. Ms. Miller was told that if asked for identification she was to show her valid Florida Driver's License, if asked her age to tell her correct age and not to engage in any extensive conversation with anyone. On October 22, 2002, Ms. Miller entered the restaurant and walked to the left of the entrance where the bar was located. A waitress asked what she wanted and she told her she wanted a Corona (Beer). After Ms. Miller ordered the beer from the waitress the owner and Respondent Mr. Wong came over and asked for her identification. She provided her driver's license as an I.D. to Mr. Wong. As he was checking her driver's license the waitress, Tabitha Cornett, opened the Corona and set it on the counter so that it would be ready when Mr. Wong approved giving Ms. Miller the beer. The point on the bar where the beer was placed was approximately 16 feet away from where Mr. Wong and Ms. Miller were having the conversation about her I.D. Mr. Wong viewed Ms. Miller's Driver License I.D. for 30 or 45 seconds. The driver's license had her correct name and date of birth, which was in 1984, and a statement printed on the license which said "Under 21 until 09-02-05." Mr. Wong allowed the beer to be served to Ms. Miller. Ms. Miller took the beer and placed it on a table near the bar. She then indicated to the waitress that she was going to call friends to meet her and walked outside the restaurant, leaving the beer on the table. In restaurant sales situations, IAs are instructed to depart the premises once they have been served alcohol. Generally payment will not be tendered because, in restaurant situations, the law and licensure calls for consumption on the premises and it is customary to consume the alcohol and pay for at the end of one's stay at the restaurant. In the instant situation neither Ms. Miller nor anyone else ever paid for the beer in question. Mr. Wong acknowledged in a due diligence statement taken at 5:30 p.m., on the day in question October 22, 2002 (in evidence as Petitioner's Exhibit four) that he checked the I.D. but he wasn't wearing his glasses and he thought it said that Ms. Miller was born in 1964. He asked her, "You were born in 64?" He said in his statement that Ms. Miller did not reply to him and then he states (in his due diligence statement) that he told her that she was too young for that I.D. and again she said nothing. He again asked her if this was her I.D. and she said nothing. He handed it back to her. He then said in the statement: "I did not want to insult someone so I allowed it served." In other words he questioned whether she was old enough based upon the I.D. he saw; believing it to say 1964 because he did not have his glasses on, but also believing that she appeared too young for that I.D. Ms. Miller left the premises and Agent Edwards and Agent Maxwell entered the premises and informed Mr. Wong that he had just allowed service of alcohol to a minor. Thereafter Mr. Wong was placed under arrest handcuffed, and taken to the Nassau County Jail. Mr. Wong had never had any beverage-related offense on his record prior to that time. No investigation or prosecution concerning his business had ever occurred up to that point. A criminal prosecution was instituted against him concerning this same incident and facts, which resulted in a jury verdict of acquittal. The totality of the evidence shows that although Mr. Wong did not actually serve Ms. Miller, he did allow a beer to be served to her. She was under 21 years of age. Mr. Wong testified that even though one person checks identification, any employee can open a beer and place it on the counter or service bar. Ms. Cornett did so in this case, placing the beer at the far end of the service bar from where Mr. Wong and Ms. Miller were conversing concerning her I.D. This allows the beer to be ready once the person checking the I.D. authorizes the sale. In the situation at hand, Ms. Cornett opened the beer, placed in on the bar and Mr. Wong then went through the door away from the bar into the main part of the restaurant. Ms. Miller, the I.A., then took the beer from the bar and placed it on the table and told Ms. Cornett that she was going outside to meet her friends or to call her friends. After that occurrence the other agents named above came in, explained the situation to Mr. Wong, and arrested him during the course of which discussion he made the above-referenced statement. Mr. Wong never touched the beer in question and Ms. Cornett never actually physically handed it to Ms. Miller, but both Mr. Wong and Ms. Cornett allowed Ms. Miller to take the beer from the bar and place it on her table, thus taking the beer into her own custody and control at least temporarily, even though no money was exchanged in return for the beer.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties it is, therefore, RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, finding that the Respondent violated Section 562.11(1)(a), Florida Statutes, and that he be required to pay a $250.00 fine to the Division. DONE AND ENTERED this 31st day of July, 2003, in Tallahassee, Leon County, Florida. S COPIES FURNISHED: Christina Pardieck, Assistant General Counsel P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 31st day of July, 2003. Division of Alcoholic Beverage and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-2202 Gary Barker, Esquire Post Office Box 1177 Callahan, Florida 32011 Hardy L. Roberts, III, General Counsel Division of Alcoholic Beverage and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Peter Williams, Director Division of Alcoholic Beverage and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether the facts alleged in the Notice to Show Cause in this case are true and whether those facts, to the extent that they are true, warrant revocation, suspension or other discipline of the license of Respondent. The Notice to Show Cause explicitly alleges several drug-related and one disorderly conduct violations on the licensed premises and implicitly alleges the Respondent's culpable responsibility for the violations under Section 561.29(1)(a), Florida Statues. The Notice To Show Cause also alleges that Respondent maintained the licensed premises as a place where controlled substances were illegally kept, sold, or used in violation of Sections 823.01 and 561.29(1)(e), Florida Statutes and Sections 893.13(2)(c) and 561.29(1)(a), Florida Statutes.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: At all times relevant hereto, the Respondent, Rene Tamer, held alcoholic beverage license number 23-07334, series 2-COP, for the licensed premises known as El Emperador, located at 36-38 Ocean Drive, Miami Beach, Florida. On January 27, 1986, Beverage Investigator Carlos Baixauli went to the licensed premises of El Emperador. While there, he saw a black latin female walk over to a dog that was lying on the floor. Baixauli heard the woman ask the dog in spanish if he (the dog) wanted to have sex. The woman then fondled the dog's penis for approximately 20 minutes. Night manager Luis Tamer was present when this incident occurred. On February 5, 1986, Investigator Baixauli, while inside of the licensed premises of El Emperador, arranged to purchase one gram of cocaine from a white latin male, known as El Indio (the Indian). El Indio told Baixauli that he needed the $60.00 "up front." When Baixauli expressed concern as to whether El Indio would return with the cocaine or his money, El Indio stated that he worked at El Emperador, was always around and could be trusted. Baixauli gave El Indio $60.00. El Indio left the premises, returned and handed Baixauli a small plastic package of cocaine wrapped in a white napkin. Baixauli opened the napkin and conspicuously inspected the package of cocaine by holding it up to approximately eye-level and tapping it with his fingers. Luis Tamer was present and behind the bar at the time. On February 10, 1986, Investigator Baixauli visited the licensed premises of El Emperador. While Baixauli was at the bar talking to on-duty manager Luis Tamer, El Indio went over and asked Baixauli if he wanted to buy some "yeyo," a Spanish term for cocaine. Baixauli agreed to purchase one gram of cocaine and gave El Indio $60.00. El Indio subsequently returned and again interrupted a conversation between Baixauli and Luis Tamer. El Indio handed Baixauli a matchbook, from which Baixauli removed a plastic package containing cocaine. Baixauli held up the package and showed to his partner Garcia. El Indio told Baixauli that he could be found at El Emperador between 2:00 and 4:00 A.M. performing clean-up duties and at 11:00 A.M. stocking the beer coolers or running errands for Rene Tamer. On February 12, 1986, Investigator Baixauli visited the licensed premises of El Emperador. While there, Rene Tamer asked Baixauli: "Are you still working for the Division of Alcoholic Beverages?", to which Baixauli feigned ignorance and replied that he did not know what Rene Tamer was talking about. Rene Tamer, Luis Tamer and other employees then briefly retired to the kitchen where Baixauli observed them "looking out" at him as if to get a better view. El Indio arrived at El Emperador at approximately 2:00 P.M. and began stacking beers and cleaning the premises. El Indio asked Baixauli if he wanted any cocaine and Baixauli handed him $60.00 in front of Luis Tamer. El Indio later returned and handed Baixauli a matchbook. Baixauli removed a plastic package containing cocaine from the matchbook, held it up while inspecting it and showed it to his partner, Garcia. Luis Tamer was at the front counter during the transaction. On February 13, 1986, Investigator Baixauli visited the licensed premises of El Emperador. El Indio asked Baixauli if he could bring him anything. Baixauli gave El Indio $60.00 for one gram of cocaine. At approximately 4:00 P.M. El Indio returned and handed Baixauli a plastic package containing cocaine, which Baixauli held up and tapped with his finger. Luis Tamer, the manager, was standing behind the bar and observed Baixauli's inspection of the cocaine. Luis Tamer smiled and said nothing. On February 17, 1986, Investigator Baixauli visited the licensed premises of Emperador. Baixauli went to the bar and struck up a conversation with Luis Tamer. El Indio went over and asked Baixauli if he needed anything, to which Baixauli replied "yes" and gave El Indio $60.00. El Indio returned with some cocaine while Baixauli was still speaking with Luis Tamer. Baixauli removed the plastic package of cocaine from the matchbook and held it up to inspect it. Once again, Luis Tamer just smiled. On February 24, 1986, Investigator Baixauli returned to El Emperador. Baixauli went over to off-duty employee Camaquay and struck up a conversation. El Indio approached them and asked Baixauli if he wanted any cocaine. Baixauli responded that he did and gave El Indio $60.00, at which time Camaquay started laughing and said that he had been told that Baixauli was a "Narc" and must be setting up El Indio. El Indio later returned to where Baixauli was seated at the bar talking to Camaquay and manager, Luis Tamer, and handed Baixauli a matchbook. Baixauli removed a plastic package of cocaine from the matchbook and held it up for inspection, tapping it with his finger. Neither Camaquay nor Luis Tamer said anything to Baixauli. Later on in the evening of February 24, 1986, Baixauli asked Camaquay if El Indio was coming back to El Emperador. Camaquay told Baixauli not to worry, because he, Camaquay, could get cocaine from the same source as El Indio. Baixauli, after obtaining change from Luis Tamer, gave Camaquay $30.00 for a half-gram of cocaine. Camaquay later returned and tossed a plastic package of cocaine onto the bar in front of Baixauli. Baixauli held up the bag at eye level and tapped it with his fingers in view of manager Luis Tamer and other patrons. On February 26, 1986, Investigator Baixauli went to El Emperador and asked Luis Tamer if Camaquay was in. Camaquay went over to Baixauli, showed him a plastic bag containing marijuana and asked if he wanted to smoke. Baixauli said no. Camaquay then went into the restroom from which Baixauli then smelled a strong odor of marijuana. Manager Luis Tamer asked Baixauli where Camaquay was and Baixauli told him that Camaquay was in the bathroom smoking marijuana. Later at El Emperador on February 26, 1986, El Indio approached Baixauli and asked if he needed anything. Baixauli gave El Indio $60.00 for some cocaine. El Indio later returned and gave Baixauli a matchbook. Baixauli removed a plastic package of cocaine from the matchbook, held it up and tapped it with his fingers. Luis Tamer was standing behind the bar looking at Baixauli and Camaquay was standing by the pool table looking at Baixauli. After Baixauli received his cocaine from El Indio on February 26, 1986, Camaquay approached several patrons playing pool and asked if they wanted to buy drugs. Camaquay showed them a plastic package of marijuana which he took from his pocket, in full view of Baixauli, and Luis Tamer the manager, who were all looking in his direction. After Camaquay's attempt to sell marijuana to the pool playing patrons, he approached Baixauli and asked if he could bring him anything. When Baixauli agreed, Camaquay left the premises and shortly returned, tossing a plastic package of cocaine onto the bar in front of Baixauli and Luis Tamer, who was standing behind the bar in front of Baixauli. Baixauli held up the plastic bag and tapped it with his fingers. On March 4, 1986, Investigator Baixauli returned to El Emperador. Luis Tamer yelled to El Indio that his "friends" were there. El Indio approached Baixauli and Baixauli gave him $60.00. While El Indio was out obtaining Baixauli's order, on-duty employee Camaquay went over to Baixauli and asked if he wanted to buy some cocaine. Baixauli said "yes" and handed Camaquay $30.00 over the bar. El Indio returned shortly with a plastic package containing cocaine. Baixauli held up the package and showed it to his partner, Garcia. Camaquay later returned and handed Baixauli a plastic package of cocaine. Baixauli raised the bag and tapped it with his fingers. On March 11, 1986, Investigator Baixauli visited El Emperador. Luis Tamer was present and tending the bar. El Indio approached Baixauli and asked him if he needed any cocaine. Baixauli said "yes" and gave El Indio $30.00 for a half gram of cocaine. El Indio later returned and handed Baixauli a matchbook containing a plastic package of cocaine. Baixauli performed his usual post-sale inspection of the cocaine by holding the package up to approximately eye-level and tapping it with his fingers.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED that a Final Order be issued revoking the alcoholic beverage license number 23-07334, series 2-COP, held by Respondent, Rene Tamer. DONE and ORDERED this 22nd day of August, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 22nd day of August, 1986. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Professional Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927 Mr. Rene Tamer El Emperador 36-38 Ocean Drive Miami Beach, Florida 33149 Howard M. Rasmussen, Director Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, Florida 32301 James Kearney Secretary The Johns Building 725 S. Bronough Street Tallahassee, Florida 32301 Thomas A. Bell, Esquire General Counsel 725 S. Bronough Street Tallahassee, Florida 32301
The Issue Whether the Respondent committed the offense alleged in the Administrative Complaint dated August 14, 2012, and, if so, what penalties, if any, should be imposed.
Findings Of Fact PTL Associates, Inc., d/b/a 7 Eleven Store No. 32599A (PTL), is a convenience store located at 4401 Colonial Boulevard, Fort Myers, Florida 33912. Lucia D'Costa is the sole shareholder of PTL. Since October 12, 2011, and at all times material to this case, the Respondent has been licensed by the Petitioner to sell alcoholic beverages under license number BEV 4604710, Series 2APS. According to a document titled "Record of Inspection-- Official Notice," on July 19, 2012, an employee of the Respondent sold an alcoholic beverage to an underage individual after checking the individual's identification. The document advised the Respondent that a follow-up compliance check would take place within the subsequent 12 weeks. The Petitioner took no disciplinary action against the Respondent based on the July 19, 2012, compliance check. The Respondent has not been the subject of any prior disciplinary proceeding related to the license referenced herein. On August 2, 2012, the Petitioner conducted an undercover compliance check as a follow-up to a compliance check done on July 19, 2012, to determine whether the Respondent was selling alcoholic beverages to underage individuals. The compliance check was performed by two of the Petitioner's agents, Jennifer Nash and David Foraker, with the assistance of a 16- year-old female identified as Investigative Aide FT0205 (IA). On August 2, the IA entered the store accompanied by Agent Nash, while Agent Foraker remained in the vehicle outside the store. Ms. D'Costa was present in the store, behind the counter and operating multiple store sales registers. Two employees were also present, occupied with various cleaning tasks. The IA walked to the beverage cooler and withdrew a 16 ounce Coors Light, carried it to the counter area, and stood in line to pay for the beer. Ms. D'Costa took the beer from the IA, scanned the beer into the sales register, and completed the transaction. Ms. D'Costa did not ask the IA to produce any form of identification to verify the IA's age. While the transaction occurred, Agent Nash observed the AI and Ms. D'Costa, initially from inside the store, and then from outside while looking through large windows on the storefront. Although while in the store Agent Nash spoke to Ms. D'Costa to ask for driving directions, Agent Nash did not interfere with the sale of beer to the IA. There is no evidence that Agent Nash prompted Ms. D'Costa to sell the beer to the IA, or that she interfered in the transaction in any way. Some, but not all, of the Respondent's cash registers have software to prompt a register operator to verify a customer's age during the sale of an alcoholic beverage. When Ms. D'Costa sold the beer to the IA, she used a register that did not prompt the sales clerk to verify the customer's age. Ms. D'Costa testified that she does not usually operate the sales registers and that the clerks are usually responsible for the counter operation. She testified that, at the time of the compliance check on August 2, 2012, the two employees present were cleaning the store in anticipation of a monthly inspection, and, therefore, Ms. D'Costa was working alone at the sales registers. The inspection referenced by Ms. D'Costa is a routine monthly inspection conducted by corporate representatives at a time unknown to the licensee until the representatives arrive. It is reasonable to presume, given the nature of the inspection, that store cleaning would be an ongoing obligation of a licensee. The testimony fails to suggest that a licensee is exempt from compliance with laws prohibiting underage alcohol sales when employees are busy. After completing the purchase, the IA left the store and delivered the beer to Agent Foraker. The Petitioner's agents then went into the store to notify Ms. D'Costa that the transaction had taken place and to deliver to her a "Record of Inspection--Official Notice" and a "Notice to Appear." Ms. D'Costa testified at the hearing that she believed the IA to be at least 30 years of age on August 2, 2012. The IA participated in seven undercover compliance checks on August 2, 2012. The Respondent was the only store that did not check the IA's identification during a compliance check. Ms. D'Costa also testified that the franchise agreement could be breached by a suspension of the alcoholic beverage license. The franchise agreement was not offered into evidence at the hearing. The Petitioner has a written policy of not utilizing children or other relatives of the Petitioner's employees as IAs. At the time the compliance check was conducted on August 2, 2012, the Petitioner was apparently unaware that the IA was related to an employee of the Petitioner. After the Petitioner learned of the relationship, the IA was not again utilized in making compliance checks. The evidence fails to establish that the relationship between the IA and an employee of the Petitioner prompted Ms. D'Costa to sell the beer to the IA without checking whether the IA was of legal age to purchase alcohol.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order suspending the license referenced herein for a period of seven days and imposing a fine of $1,000 against the Respondent. DONE AND ENTERED this 27th day of March, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 2013. COPIES FURNISHED: Andrew R. Fier, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399 Timothy Joseph Perry, Esquire Oertel, Fernandez, Bryant and Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Allen Douglas, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1020
Findings Of Fact The Respondent, Peek A Boo Lounge, Inc., d/b/a Peek A Boo Lounge is the holder of alcoholic beverage license No. 63-549 (Series 2-COP), at the business address of 270 East Highway 92, Lakeland, Florida. On January 29, 1982, Deborah Lynn Edwards, a dancer-entertainer, while on the licensed premises of Respondent, was in possession of and sold amphetamines to Polk County Sheriff's Department Undercover Investigator Whitis (Counts 1 and 2). On the same day, January 29, 1982, Constance M. Borque, while dancing as an entertainer on the licensed premises, exposed her pubic area to the customers and patrons then present at the Peek A Boo Lounge. This exposure of her pubic area was witnessed by Polk County Sheriff's Department Undercover Officer Whitis (Count 3). On February 2, 1982, Officer Creamer of the Polk County Sheriff's Department was in the Peek A Boo Lounge in an undercover capacity. On this evening he was approached by Isabella Marie Arnot, a dancer-entertainer. During the course of their conversation, Arnot requested that Officer Creamer purchase an alcoholic beverage for her (Count 6) On February 4, 1982, Officer Whitis was again in the licensed premises in an undercover capacity. On this evening he was approached by Connie Frances Margotta, a dancer-entertainer, and a brief conversation ensued. In the course of this conversation, Margotta suggested certain sexual activities to Whitis, but there was no offer by Margotta to exchange sexual favors for money or other property of value (Count 7). On the next evening, February 5, 1982, Officer Whitis returned to the licensed premises and was again approached by Connie Frances Margotta. She again suggested sexual activities with Whitis, without offering to exchange sexual favors for money or other property of value (Count 8). On the same day, February 5, 1982, Beverage Officer Nelson, of the Division, was in the licensed premises in an undercover capacity. While Nelson was in the licensed premises on this evening he was approached by Daneilla A. Good, a barmaid, and engaged in a conversation with her. In the course of this conversation, Good requested Nelson to purchase a drink for a dancer-entertainer (Count 12). On about February 5, 1982, Polk County Sheriff's Department Officer Walker was in the licensed premises in an undercover capacity. Walker observed Linda Leanne Marquis, entertaining the patrons by dancing in the licensed premises. She periodically removed a portion of her costume with the exception of a feather boa. At the conclusion of her dance, Marquis exposed her pubic area to the patrons by "flashing" with the boa. On February 6, 1982, Polk County Sheriff's Officer Creamer was in the licensed premises in an undercover capacity and was approached by Daneilla A. Good, a barmaid. In the course of their conversation, Good requested that Creamer purchase a drink for a dancer-entertainer seated by him (Count 15). Polk County Sheriff's Department Officer Whitis was again in the licensed premises on February 11, 1982, and engaged in conversation with Robin K. Stutzman, a dancer-entertainer. During the course of this conversation, Whitis inquired as to the availability of methaqualone, and Stutzman advised that the substance was available. She subsequently sold and delivered four methaqualone tablets to Whitis inside the licensed premises (Counts 16 and 17). Again on the evening of February 11, 1982, while on the licensed premises, Officer Whitis observed Linda Leanne Marquis, a dancer-entertainer, expose her pubic area while performing a strip tease dance. Whitis observed Marquis remove her clothing and at the conclusion of her dance, briefly expose her pubic area (Count 18). On February 11, 1982, Beverage Officer Nelson was in licensed premises in an undercover capacity. Nelson was approached by a dancer-entertainer known as "Bell" who asked him to purchase a drink for her (count 21). On February 11, 1982, Polk County Sheriff's Department Investigator Manatou was in the licensed premises in an undercover capacity. He observed Isabella Marie Arnot, a dancer-entertainer, expose her buttocks area to himself and other patrons by pulling down the back of her entertainer's costume (Count 22). On the evening of February 11, 1982, Officer Nelson was approached by Isabella Marie Arnot, and during the course of their conversation, Arnot requested Officer Nelson to purchase a drink for her (Count 23). On February 17, 1982, Beverage Officer Cahoon was in the licensed premises in an undercover capacity. He inquired of Isabella Marie Arnot, a dancer-entertainer, as to the availability of methaqualone. She advised methaqualone was available and subsequently sold and delivered three methaqualone tablets to Cahoon (Counts 24 and 25). On February 17, 1982, Polk County Sheriff's Department Undercover Officer Whitis inquired of Connie Frances Margotta, a dancer-entertainer, as to the availability of methaqualone. Margotta replied that methaqualone was available and subsequently sold and delivered one methaqualone tablet to Whitis (Counts 26 and 27). On that same evening, February 17, 1982, Polk County Sheriff's Department Undercover Officer Whitis inquired of Isabella Marie Arnot, a dancer- entertainer, as to the availability of methaqualone. Arnot replied that methaqualone was available and subsequently sold and delivered three methaqualone tablets to Whitis (Counts 30 and 30A). On February 19, 1982, Polk County Sheriff's Department Undercover Officer Walker was in the licensed premises in connection with this investigation. He engaged in conversation with a woman identified as Tammy Hobbs, and inquired as to the availability of amphetamines. Hobbs stated that such was available and subsequently sold and delivered amphetamines to Walker in the licensed premises. There was no showing of any relationship between Hobbs and the Respondent (Counts 31 and 32). On the same evening, February 19, 1982, Polk County Sheriff's Department Undercover Officer Walker was approached by Sandra Delores Moor, a dancer-entertainer. In the course of their conversation, Moor offered to perform a sexual act with Walker for $45.00 (Count 33). On the same evening, February 19, 1982, Polk County Sheriff's Department Undercover Officer Manatou was at the licensed premises. He observed Robin K. Stutzman, a dancer-entertainer, performing a strip tease dance. At the conclusion, Stutzman exposed her pubic area to patrons by removing her hands and a feather boa from in front of her pubic area (Count34). On February 24, 1982, various officials of local and state law enforcement agencies met at the licensed premises for the purpose of executing arrest warrants. In conjunction with these arrests, Petitioner's Beverage Officers conducted a licensed premises inspection. During the course of this inspection, Teresa Okerstrom Crisp, a dancer-entertainer, was found to be in possession of cannabis. The cannabis was located in Crisp's purse, which was in her locker inside the dressing area of the licensed premises. However, the search of her purse was made with neither her permission, nor a warrant or probable cause (Count 37).
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty as charged in Counts 1, 2, 6, 12, 15, 16, 17, 21, 23, 24, 25, 26, 27, 30 and 30A of the Amended Administrative Complaint/Notice to Show Cause, and suspending Respondent's alcoholic beverage license for a period of 45 days. DONE and ENTERED this 18th day of January, 1983, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 18th day of January, 1983.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Edward Lee Howell, held alcoholic beverage license number 46-01252, Series 2-COP, issued by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent used the license to sell beer and wine (for on-premises consumption only) at an establishment known as Mr. B's Lounge located at 2712 Towles Street, Fort Myers, Florida. Because of numerous violent crimes, including murder and robbery, that had occurred in an area around the lounge, the Lee County Sheriff's Department (Department) maintained what it called a "constant area check" in the neighborhood surrounding the bar. Indeed, respondent acknowledged that the most recent murder had occurred across the street just two weeks prior to hearing. In all, Department personnel made around twelve visits to the lounge in 1990. After receiving a report that alcoholic beverages were being sold or consumed after closing hours at respondent's lounge, a deputy sheriff, James Nygard, visited the licensed premises around 3:45 a.m. on December 8, 1990. During that visit, Nygard gave respondent a copy of Lee County Ordinance No. 76- 9 and read section 4.2 of the ordinance to respondent. That section prohibits the sale, dispensing or consumption of "any type of alcoholic beverage on or off the premises" between the hours of 2:00 a.m. and 7:00 a.m. every day of the week. Howell acknowledged to Nygard that he understood the law. Although Nygard contended that during his visit he observed at least one patron drinking what appeared to be an alcoholic beverage from a beer can, he opted to give Howell only a warning. At approximately 3:10 a.m. on December 23, 1990, Nygard and another deputy, Glenn Kraft, entered the licensed premises and observed an estimated eighty to one hundred patrons still in the lounge. Nygard also observed two unidentified black males in the crowd lift beer cans to their mouths and take a sip of the contents. Nygard recalled that there was condensation on one of the two cans of beer. However, Nygard did not seize the beer cans as evidence or arrest the two patrons, and there is insufficient evidence, inferential or otherwise, to establish that the drinks being consumed were actually beer. Nygard then asked Howell to step outside where Howell was given a citation for allowing beer to be sold and/or consumed on the licensed premises after 2:00 a.m. in contravention of Lee County Ordinance 76-9. The parties agree that criminal charges were filed against respondent but later dismissed on the ground Nygard could not prove that the two patrons were actually consuming beer. According to respondent, Nygard was only on the premises for a few seconds before going outside to write up the citation. Howell denied that the customers were drinking beer and pointed out that he has given his four employees strict instructions to stop all beer and wine sales at 1:30 a.m. and to clear the tables of beer cans by 2:00 a.m. After that hour, he operates a dance club until around 4:00 a.m. and sells soft drinks and food to customers. On July 23, 1990, the Division sent respondent by certified mail an "official notice" relating to a complaint about sales and consumption of alcoholic beverages taking place after 2:00 a.m. Other than that notice, there is no evidence of any other disciplinary action being taken against respondent during the eight years he had held a license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent be found not guilty of violating Subsection 561.29(1)(a), Florida Statutes (1989) and the notice to show cause be dismissed with prejudice. RECOMMENDED this 12th day of July, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2091 Petitioner: 1. Adopted in finding of fact 1. 2-3. Adopted in finding of fact 4. Partially adopted in finding of fact 4. Adopted in finding of fact 4. Adopted in finding of fact 3. Adopted in finding of fact 2. COPIES FURNISHED: Nancy C. Waller, Esquire 725 South Bronough Street Tallahassee, FL 32399-1007 Mr. Edward Lee Howell 1348 Brookhill Drive Fort Myers, FL 33916 Donald D. Conn, Esquire 725 South Bronough Street Tallahssee, FL 32399-1007 Richard W. Scully, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, FL 32399-1007
Findings Of Fact Early Mitchell t/a Mitchell's Fish Market holds 1-COP beverage license which authorizes the sale of beer only for consumption on the premises. At the time scheduled for the commencement of the hearing Mitchell was not present and the hearing commenced. Exhibit 1 shows that the notice of the hearing was served upon Mitchell on May 10, 1977. Shortly thereafter Mitchell arrived and the hearing proceeded. On October 5, 1976 a beverage agent accompanied by an officer from the Tallahassee Police Department inspected Mitchell's Fish Market. Inside they found a partially filled bottle of Smirnoff vodka which was seized, duly marked, and presented in evidence at the hearing. A description of the bottle was substituted for the exhibit and Exhibit 2 was returned to the Beverage Division. On March 9, 1977 another beverage officer, on a routine inspection of Mitchell's Fish Market, discovered behind the counter concealed in an open beer case, one partially filled bottle of Smirnoff vodka. The bottle was seized, marked for identification and retained in the custody of the seizing beverage officer until such time as it was produced in evidence at the hearing. A description of the bottle was entered into the record and Exhibit 3 returned to the Division of Beverage.
Findings Of Fact Willie Norman, Jr. d/b/a Paradise Cafe holds 2-COP beverage license and was so licensed at all times here relevant. In August, 1977 Willie Norman was in the hospital where he had a gall bladder operation. During this time on August 7 and 14, Gainesville police officers observed the Paradise Cafe open after hours on consecutive Sunday nights. Gainesville City Ordinance No. 2082 (Exhibit 9) prohibits the sale of alcoholic beverages on Sundays after 11 p.m. in the city of Gainesville. On 7 August 1977 the police found the establishment open at approximately 3 a.m. with 30 to 40 patrons in the premises and Ike Norman apparently in charge. The following Sunday night on August 14 the police raided the premises at 11:30 p.m. on Sunday night and found 40 to 50 patrons in the establishment with Ike behind the bar and Manuel Norman serving beer. When Manuel Norman was arrested, Ike stated that he (Ike) was running the business because the licensee was sick and that if anyone was to be arrested it should be him. After receiving the police reports, the premises were inspected by beverage agents on 30 August 1977 and Ike Norman told the agent that he was running the business for his son, the licensee, who was home sick. On 7 October 1978 two beverage agents entered the Paradise Cafe on a routine inspection, and, while looking in the men's room, one of the agents observed a brown paper bag, the contents of which he found suspicious. A subsequent analysis of the contents disclosed that the bag contained 14 grams of cannabis. No evidence was presented that licensee or any employee of licensee knew or should have known that the cannabis was on the premises. Willie Norman, Jr., Ike Norman and Manuel Lee Norman are brothers. Ike was the licensee of the cafe several years ago when it was named the Red Top Cafe. In 1973, Ike was convicted of possession of alcoholic beverages for sale without a license. He sold the business to his brother, Willie, who took over the lease and first became licensed in 1975-76. According to Willie's testimony, while he was in the hospital during the month of August, 1977, he left Manuel Norman in charge. He was aware that Ike could not legally be employed at the business because of Ike's criminal record. Willie expressed no knowledge of any of the other charges preferred against his license.
