The Issue Whether Petitioner may discipline Respondent’s alcoholic beverage license for Respondent’s violating Florida Administrative Code Rule 61A-3.0141(3)(D) and Section 561.20(4) “within” 561.29(1)(a),1/ Florida Statutes, on three separate occasions.
Findings Of Fact Pursuant to un-refuted testimony, Respondent, MJT Restaurant Group, Inc., doing business as The Copper Pot, holds Beverage License 5202697, Series 4 COP, SRX.3/ Respondent’s establishment is located in Ocala, Florida. It is divided into two separate interior rooms, with two separate exterior entrances. The two rooms are connected through the interior by a single opening between one room, which is the main restaurant area, and a second room, which is the bar/lounge. A complaint was opened against Respondent with a warning letter issued by Investigative Specialist Melodi Brewton on March 15, 2007. The Administrative Complaint that was ultimately filed in this case addresses only the dates of April 7, 2007, June 17, 2007, and July 20, 2007. On April 7, 2007, Special Agents Angel Rosado and Lawrence Perez visited Respondent’s premises in an undercover capacity at approximately 11:00 p.m. On that date, the restaurant’s exterior door was closed and locked, but the lounge’s exterior door was open. The agents entered through the lounge’s exterior door and observed patrons consuming alcohol and listening to a band in the bar area. The agents requested a menu from the bartender. The bartender told them the kitchen was closed. Each agent then ordered a beer, and a sealed alcoholic beer bottle was sold to each of them as alcoholic beer. Each agent was over 21 years of age, familiar with the smell and taste of alcohol, and testified that the liquid inside his container had been alcoholic beer. The agents testified that they had paid for, and received, the liquid as if it were alcoholic beer. A chain of custody was maintained and a sample vial of the beer served by Respondent on Tuesday, April 7, 2007, was brought to the hearing but was not admitted into evidence as unduly repetitious and cumbersome.4/ On June 16, 2007, Special Agent Rosado and Special Agent Lawrence Perez visited The Copper Pot at approximately 11:30 p.m. The outside restaurant door was not locked, but the lights were off inside the restaurant room where chairs were stacked on the tables. The agents observed patrons in the lounge room consuming alcohol. When the agents asked for a menu, the male bartender told them that the kitchen was closed. The bartender offered to heat up some spinach dip for them, but they declined. Each agent then ordered an alcoholic beer, and a liquid was sold to each of them as alcoholic beer. Each agent was over 21 years of age, familiar with the smell and taste of alcohol, and testified that the liquid sold him was alcoholic beer. Each agent testified that he had paid for, and received, the liquid as if it were alcoholic beer. A sample of the alcoholic beer was logged into the Agency evidence room on June 17, 2007. That sample of the beer served by Respondent on June 16, 2007, was brought to the hearing but was not admitted into evidence as unduly repetitious and cumbersome.5/ During the June 16-17, 2007, visit, Agent Perez spoke with a woman who was later determined to be one of the corporate officers of the licensee, Judith Vallejo. When Agent Perez asked her about obtaining a meal, Judith Vallejo replied that the kitchen was closed, but they could get food at the nearby Steak’N’Shake. The male bartender then told the agents that the Respondent’s restaurant closes at 9:00 p.m. weekdays and 10:00 p.m. on weekends. June 16, 2007, was a Saturday. June 17, 2007, was a Sunday. At about 11:00 p.m. on July 20, 2007, Special Agents James DeLoach, Ernest Wilson, and Angela Francis entered Respondent licensee’s premises through the lounge. The restaurant’s outside entrance was locked and the restaurant was dark. In the lounge, they asked for a menu to order a meal. The male bartender told them that the kitchen was closed, but they could have a spinach dip. The agents ordered, and were served, one beer and two mixed drinks, which Special Agents DeLoach and Wilson testified had alcohol in them. Special Agent Francis did not testify. Both of the special agents who testified were over 21 years of age, familiar with the taste and smell of alcohol, identified that the liquids they had been served were, in fact, alcoholic beverages, and that they had bought and paid for what the bartender served them as alcoholic beverages as if they were alcoholic beverages. Each testified that the bartender had represented that what he was serving them were the alcoholic beverages they had ordered. A sample vial of only the beer served by Respondent to Special Agent Wilson on July 20, 2007, was brought to the hearing, but it was not admitted into evidence as unduly repetitious and cumbersome.6/ Thereafter, a notice of intent to file charges was served upon one of Respondent’s corporate officers. There was testimony from a Special Agent that an SRX licensee is required to earn fifty per cent of its gross income from the sale of food and must sell food which is the equivalent of a full course meal during the entire time alcohol is being served, and that the Administrative Complaint herein should have cited Section 561.20(1) instead of 561.20(4), Florida Statutes.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing all statutory charges; finding Respondent guilty, under each of the three counts of the Administrative Complaint, of violating Florida Administrative Code Rule 61A-3.0141(3)(d); and for the rule violations, fining Respondent $1,000.00, and revoking Respondent's license without prejudice to Respondent's obtaining any type of license, but with prejudice to Respondent's obtaining the same type of special license for five years. DONE AND ENTERED this 4th day of March, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2008.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent P R of Brevard County, Inc., doing business as Shark Lounge, was the holder of Florida Alcoholic Beverage License Series 4-COP No. 15-00177 for the Shark Lounge, located at 411 North Orange Avenue, Cocoa Beach, Florida. On March 15, 1984, Terry A. Altman, a special agent for the U.S. Treasury Bureau of Alcohol, Tobacco and Firearms (BATF), in an undercover capacity and in the company of Investigator Gloria Smith of the Division of Alcoholic Beverages and Tobacco (DABT), also in an undercover capacity, entered the Shark Lounge at approximately 2:00 a.m. They had been there before on March 12, 1984, when an employee of the Respondent, the bouncer Harry Haynes, had offered to sell marijuana to Smith. On this March 15th visit, they spoke with an employee by the name of Sherry, and Smith asked if Haynes was there. When Haynes showed up, Smith asked him if he had been able to obtain any of the marijuana he had mentioned previously, whereupon Haynes told her that cocaine was easier to get than marijuana. However, Haynes made some telephone calls and shortly thereafter requested that Altman come outside with him. Altman complied, at which time Haynes requested $30. Altman paid the $30 to Haynes and then went back inside the bar. A little later, Haynes came in and motioned Altman and Smith to come outside, where Haynes handed Altman a plastic envelope containing a green leafy substance. Upon subsequent laboratory analysis, this substance was determined to be marijuana. On March 22, 1984, Altman and Smith went back to Respondent's lounge, where Smith saw Haynes behind the bar. At this time, she asked Haynes if she could get cocaine, and Haynes indicated that he had already ordered some for her. At approximately 2:00 a.m., Haynes came in and told Altman to go outside with him. Haynes quoted a price of $50 a half gram for the substance. Altman paid Haynes the $50 and went back inside, while Haynes went someplace else. A few minutes later, Haynes came back into the bar and requested that Altman again come outside. When he did so, Haynes handed him a small plastic bag of a white powder, suspected to be cocaine, which Altman took back into the lounge and gave to Smith. Sitting at the table and making no effort to conceal her actions, Smith held the package up to the light, tapped the bag to get the substance to one corner, and then put it into her purse. Haynes at that time guaranteed the quality of the substance and offered to get them more in the future if they so desired. This substance was subsequently analyzed and determined to be cocaine. Thereafter, on March 24, 1984, Smith, in the company of undercover agent Jenkins, entered the lounge at about 9:30 p.m. She introduced Jenkins to Haynes and asked Haynes if he could get some cocaine for them. Haynes replied that he could do so but that his source would not be in until later in the evening. At approximately 3:30 the following morning, while Haynes was busy attempting to break up a fight which had just started, an individual identified as Haynes' source entered the bar, and Haynes pointed out Smith to him. This source, identified as Ric, came to Smith and gave her what was subsequently identified as cocaine in a plastic bag, for which she paid him $50. By this time, the lights, which had previously been turned out in an attempt to help stop the fight, were back on, and there was no attempt on the part of Ric to conceal the transaction. Later in the evening, Haynes asked Smith if she had been taken care of. Again, on April 8, 1984, Altman entered the Shark Lounge at approximately midnight. He approached Haynes, who was acting as a bouncer at the entrance, and asked to buy a half gram of cocaine. Haynes asked Altman to step outside and agreed to procure the cocaine for Altman if he would front the money for it. Altman paid Haynes $60 in cash at the Shark Lounge, and, pursuant to the agreement between the parties, the cocaine was subsequently delivered later that afternoon at the Canaveral Pier. The transfer of money from Altman to Haynes took place near the door in front of an independent security guard hired by Respondent. Haynes explained the transfer as being a payoff of a bet. On April 17, 1984, at approximately 9:00 p.m., Smith and Altman again entered the Shark Lounge and engaged Haynes in conversation, at which time Smith indicated that she wanted some more cocaine. Haynes replied he would get it, and Altman gave him $40 to purchase a half gram of cocaine. It was understood between them that Smith and Altman would be back the following evening to pick up the cocaine. When they did come back at approximately 11:45 p.m. on April 18, Haynes, who was out in the parking lot, motioned Altman to get into an Oldsmobile car, which Altman did. Haynes then removed the package of cocaine from the car's ashtray and attempted to give it to Altman, saying that it was good stuff. Altman, however, indicated that Smith had paid for it and that Haynes should give it directly to her. The two men then got out of the car and approached Smith, who was standing near the outside of the door to the lounge. Haynes attempted to give Smith the cocaine at that time, but she would not accept it and instead went into the lounge to use the restroom. As Haynes and Altman followed Smith into the lounge, Haynes pressed the cocaine onto Altman, indicating that he wanted to get rid of it. When Smith came back from the restroom a few moments later, Haynes told her he had already given the cocaine to Altman, who took it out of his pocket and put it in Smith's lap. She examined the cocaine and put it in her purse in full view of the other patrons of the bar. This substance, delivered by Haynes to Aliman and in turn to Smith, was subsequently identified as cocaine. Neither agent went back to the bar until April 26, 1984, at approximately 1:30 a.m., when Altman and Smith, in the company of Special Agent Eslinger of the U.S. Drug Enforcement Administration (DEA), entered the bar. They contacted Haynes, who was working as a bartender at the time, and Smith asked him to get a half gram of cocaine for her. Haynes agreed to do this and told her to check with him the next day to see if he had procured it. At the time of her request, Smith gave Haynes $50 for the cocaine. No further contact was had until late in the evening of April 30, 1984, when Altman, Smith, and an unidentified confidential informant entered the lounge. Smith asked Haynes at that time if he had obtained the cocaine she had paid for on April 26, and Haynes said that he had. This conversation took place near the door, where Haynes was working as a bouncer. Haynes took a plastic envelope containing a white powder from his right front pocket and gave it to Smith, who brought it back to the table and showed it to Altman. Later, pursuant to Smith's invitation, Haynes came to their table and said that over the weekend he had obtained some sensinilla, some speed, and another substance. Smith said she would like to have some speed, and Haynes said he could get 30 capsules of it for $15, which she gave to him. At this point, Haynes showed Smith a package of a black substance which he identified as hashish and offered to sell to her for $5. Smith did not buy any, however, and she, Altman, and the informant departed the lounge after telling Haynes they would be back for the speed the next night. The white powdery substance that Smith obtained from Haynes that night was subsequently tested and found to be cocaine. When Smith went back to the lounge on May 4, 1984, at 11:00 p.m., this time with Eslinger alone, she contacted Haynes, who was working as the bouncer. Haynes told her he had the speed which she had paid for previously on April 30 and told them to go sit down. Shortly thereafter, Haynes motioned for Smith to come over to the door area, and, when she did so, he briefly stepped outside the lounge and then immediately came back. When he returned, Haynes put a package inside Smith's purse, which she saw and which he stated was only 25 capsules instead of the 30 she had paid for. At this point, Smith asked Haynes if she could pay him $50 in advance for a half gram of cocaine, which Eslinger would pick up the following day at the Canaveral Pier. When Haynes agreed, Smith gave him the $50 while they were inside the bar. Thereafter, she and Eslinger left. The capsules which Smith received from Haynes that night in the lounge did not contain amphetamines or any other determinable controlled substance. When Altman and Smith next returned to the bar on June 3, 1984, they found Haynes standing by the entrance. About a half hour after they went in, Smith asked Haynes if he had any cocaine and, when he replied in the affirmative, gave him $50 in advance for a half gram of cocaine. The arrangements made at that time were that the cocaine would be picked up on June Somewhat later, when Altman and Smith were leaving, Haynes told Smith not to leave yet, that his source was getting the cocaine out of his car. Altman and Smith waited, and a few minutes later Haynes came up to Smith at the bar and dropped into her purse a small plastic bag which contained a white powdery substance subsequently identified as cocaine. When Haynes dropped the bag into her purse, Smith took it out and examined it in plain view at the bar, which was well lighted, before putting it back into her right-hand pocket. Shortly thereafter, Altman and Smith left. The packages containing cocaine, which Smith held up to the light to examine, were approximately an inch and a half by an inch and a half in size. Although other employees were in the immediate area at the time that she held the packages up, and Altman does not know hew they could have avoided seeing what Smith was doing, Altman cannot say for sure that the employees did see it, nor can Smith. No other employees of the Respondent were involved in any of the drug deals except for Haynes. No other employees were in the immediate area when the sales were made. Neither Smith, Altman, nor Eslinger engaged in any discussion of drugs with any other employee of the bar on the numerous times they were in there. Smith contends that she first went into the bar on March 12, 1984, with Altman to pick up some drugs offered at another bar. She started talking to a male at her right and asked him if he knew where she could get some grass. This individual said yes and went to make a phone call. Later, he identified himself as Harry Haynes and said that he worked there as a bouncer but was not on duty on that particular night. The drugs were not delivered that night, either. On March 14, at 2:00 a.m., Altman and Smith again went into the lounge. Smith approached Sherry, the bartender, and asked for Haynes, who was not there. Smith told Sherry that Haynes was to get her some grass, and, in Smith's opinion, Sherry did not react to this disclosure at all. Sherry, on the other hand, denies any conversation with Smith about drugs. She indicated that Smith came to her frequently and asked for Haynes but never mentioned drugs in any capacity. Had Smith done so, Sherry states, she would have asked her to leave. This last comment stands to defeat Sherry's credibility, however. It is unlikely that the comment was made. It is also unlikely that an experienced bartender, as Sherry is, would react by asking a repeat patron to leave for mentioning that Haynes was to get marijuana. Sherry is the only one in the bar, except for Haynes, to whom Smith mentioned drugs, although she had a conversation about drugs with Haynes in front of Ric, who is apparently also a bouncer. When Smith asked about that, Haynes said that it was okay. There is a divergence of opinion regarding the reputation of the Shark Lounge as a source of drugs. Randy Arles, a Melbourne Beach police officer on loan to the Cocoa Beach Police Department Vice Squad since mid-March of 1984 and operating undercover, was contacted previously by a confidential informant who indicated there was cocaine traffic at the Shark Lounge. Based on that information, Arles and another officer went in to try to make a buy but were unsuccessful because, as it was explained to him, his identity as a police officer had been disclosed. Information reaching him from such street sources as confidential informants and prostitutes indicated that the Shark Lounge was known as a place to buy cocaine and that Haynes, the bouncer, was the seller. This latter information, however, is hearsay testimony and, with the exception of that relative to Haynes, cannot serve as the basis for a finding of fact. The identity of Haynes as the seller is corroborated by other independent admissible evidence, however. On the other hand, Officer Charles B. Autry, who has been with the Cocoa Beach Police Department for 14 years, has come into contact with the Shark Lounge and its owner on several occasions and has been inside the lounge four or five times. To his knowledge, it is a well-run establishment, and he has never in his 14 years been called there while on duty. The owner is very businesslike and very cooperative. He runs a tight ship and encourages the police to come inside both while on and off duty. In Officer Autry's opinion, considering today's morality, any place where crowds congregate has the potential for drugs, including the Shark Lounge, which he would not class as a nuisance. This opinion was also held by Major Gary Hummel, who has been with the Cocoa Beach Police Department for 14 years. He has been in the Shark Lounge on many occasions and knows the owner personally. He considers Mr. Autry to be an upright businessman who is not himself involved in drugs. The lounge in question here is one of only two lounges in Cocoa Beach that Hummel will patronize and take his wife. Both socially and professionally, he knows of no employees who sell drugs at the lounge, but the employees know he is a police officer, and this may have some bearing on their behavior in his presence. Hummel believes the owner is tough and knows that he will fire any employee for being drunk on duty. He also discharges employees for even the slightest infractions of rules. This bar is not a nuisance in his opinion but is a good clean place where many of the Cape workers go. These sentiments were reinforced by the proffered testimony of Officers William MacDonald and Al Otto of the Cocoa Beach Police Department, who both have been in the Shark Lounge frequently both socially and professionally. They have been encouraged to come in by the owner and find the lounge to be a clean, well-run, drug-free operation. Sharon LeVaugh (Sherry) has worked at the lounge as a bartender for six and a half years and runs the floor operation. Her immediate supervisor is the owner, Mr. Autry, who, to her knowledge, has a strict policy against drugs. Anyone using them, whether it be an employee or a patron, is immediately put out of the place. There is a low turnover of employees at the Shark Lounge, because it is a good place to work. During the six and a half years she has worked there, Sherry has never seen drugs used at the bar. She had no idea that Harry Haynes was dealing in drugs and doesn't think anyone else did. The Shark Lounge is dark inside like a normal lounge. The crowd which patronizes it is made up of regulars, both young and old, with repeat patronage common. A lot of business comes from Space Center employees, and police are encouraged to come in frequently. Friday and Saturday nights are quite busy, with 200 to 300 people in attendance. The bar offers live music seven nights a week, and the music is a noisy rock and roll band. Chad J. Milkint, the manager of the Shark Lounge, has worked there for a little over a year. Before that, he worked at another bar in the area for three years and has been in the lounge business both in Florida and outside the state for more than 11 years. When Milkint was hired, the owner was very clear about the "no drug policy," and he has followed it closely. He has, on occasion, thrown people out for being intoxicated either on drugs or alcohol. There is, he claims, a practical reason for this. If a patron is intoxicated, he is not buying drinks, and they are in business to sell drinks. Milkint did not know Haynes was using drugs or selling them. If he had, he would have fired him immediately. It was not at all unusual for Haynes to go outside as part of his job. In fact, Haynes' duties included a patrol of the outside area around the bar three or four times a night. Milkint admits he did no background check on Haynes except to check with his former employer, who gave Haynes a favorable recommendation. Haynes was a part-time employee who worked two or three days a week as a backup to the main barmen in addition to his duties as a bouncer. In a normal week, Haynes would work approximately 20 hours and had been employed sporadically by the bar for only five or six months. During the period of employment at the lounge, Haynes also worked at the Canaveral Pier. When Milkint checked with the beverage manager there, he was told that Haynes' performance was satisfactory. Milkint is frequently in the bar and observes what goes on. He denies ever seeing anyone check baggies by tapping or holding them up to the light, as described by Altman and Smith. He does not believe his employees saw that, either, because he feels that if they had seen it they would have reported it. The owner also supervises on a day-to-day basis, and in Milkint's opinion the operation is a good, ethical, well-run establishment. The employees are good, the entertainment is good, and the drinks are good and sold at fair prices. Milkint does not know how he could have prevented the sales by Haynes that took place there. Gary C. Autry, sole stock owner of the Shark Lounge, has owned the establishment for eight years. He used to work more in the bar than he does now, but a recent blood condition has developed that has made him curtail his activities. When Autry came down with this condition, he hired Milkint as a manager and an individual by the name of Mike Harris as an assistant. He has known both of them for years and knew both had previous lounge experience. When he hired them, Autry told them immediately that his policy was "no drugs whatsoever." Although he cannot spend as much time in the establishment as he used to, Autry is nonetheless there seven days a week and closely supervises his operation. His bouncers are trained to handle drugs and work with the police. Had Autry known Haynes was selling or using drugs, Haynes would have been dismissed immediately. When he hires employees, he asks them their habits. He believes that because of his policies his turnover of employees is as low as it is.
The Issue Whether Respondent committed the violations alleged in the Administrative Action? If so, what penalty should be imposed?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Licensed Premises La Catracha Fish Market and Restaurant (hereinafter referred to as the "Restaurant") is an eatery located at 1255 West 46th Street, Hialeah, Florida, that sells beer and wine pursuant to alcoholic beverage license number 23-15943, series 2-COP. The Restaurant offers both counter and table service. The counter where patrons are served (hereinafter referred to as the "Counter") is situated toward the front of the Restaurant, to the right of the entrance. Ownership and Operation of the Restaurant Respondent is now, and has been at all times material to the instant case, the owner of the Restaurant and the holder of the license that authorizes the sale of alcoholic beverages on the premises. Respondent and his wife, Juanita, are now, and have been at all times material to the instant case, actively involved in the operation of the Restaurant. They maintain a regular presence on the premises. Among other things, Juanita mans the cash register behind the Counter. From February of 1994, until the end of July of that year, when the Moyas were on an extended vacation, Respondent had "other people" run the business. When they returned from their vacation, the Moyas discovered that the Restaurant had a "new clientele." The Undercover Operation Elio Oliva and Antonio Llaneras are detectives with the Hialeah Police Department. In August and September of 1994, they participated in an undercover investigation at the Restaurant. The investigation was initiated after the Hialeah Police Department had received complaints that illegal drug and gambling activities were taking place on the premises. The August 31, 1994, Visit The undercover operation began on August 31, 1994. On that date, Oliva and Llaneras, dressed in civilian attire, went to the Restaurant to see if they would be able to make a controlled buy of narcotics. Upon entering the Restaurant, they walked over to the Counter and sat down. From their vantage point at the Counter, Oliva and Llaneras observed a number of patrons walk up to another patron, Antonio Rosales, 1/ hand him money and receive in return a clear plastic bag containing a white powdery substance. After approximately 20 minutes, Oliva approached Rosales and asked him if he had any cocaine to sell. Rosales responded in the negative, but directed Oliva to another patron in the Restaurant, from whom Oliva purchased a clear plastic bag containing, what the patron represented was, a half of a gram of powdered cocaine. The transaction occurred at the Counter in plain view. There was no effort to conceal what was taking place. Oliva subsequently conducted a field test of the substance he had purchased at the Restaurant that day. The field test was positive for the presence of cocaine. 2/ The September 1, 1994, Visit Oliva and Llaneras returned to the Restaurant at around 8:00 p.m. on September 1, 1994. When they arrived, Rosales was at the Counter. There was a telephone on the Counter near where Rosales was seated. Rosales received incoming calls on the telephone that evening. (Employees at the Restaurant answered the telephone and handed it to Rosales, who then engaged in conversation with the caller.) Upon entering the Restaurant, Oliva noticed Rosales at the Counter and walked up to him. He told Rosales that he was interested in purchasing cocaine and then handed Rosales $20.00. Rosales thereupon pulled out from one of his pockets a clear plastic bag containing, what Rosales represented was, a half of a gram of powdered cocaine. He then gave the bag to Oliva. The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife was on the premises at the time of the transaction. Oliva subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. 3/ The September 2, 1994, Visit Llaneras went back to the Restaurant the following day. When he arrived, Rosales was again at the Counter. From his position near the entrance of the Restaurant, Llaneras, in a normal tone of voice, told Rosales that he wanted to buy a half of a gram of cocaine. Rosales thereupon signaled for Llaneras to sit down next to him. Llaneras complied with Rosales' request. Rosales then pulled out from one of his pockets a clear plastic bag containing a white powdery substance. Upon handing the bag to Llaneras, Rosales bragged, rather loudly, that it was "good stuff." The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent and his wife were behind the Counter at the time of the transaction. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. The September 6, 1994, Visit On September 6, 1994, Llaneras returned to the Restaurant, accompanied by Oliva. On separate occasions, they each approached Rosales, who was seated at the Counter. Llaneras' September 6, 1994, Purchase When Llaneras approached Rosales, Rosales asked him if he "needed some more." Llaneras' response was to hand Rosales $20.00. Rosales then took out a folded napkin from one of his pockets and placed the napkin on top of the Counter. He proceeded to unfold the napkin. Inside the napkin were approximately 12 clear plastic bags. Each contained a white powdery substance. Rosales handed one of the bags to Llaneras. He told Llaneras that it was "good stuff." The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife was behind the Counter, approximately three to four feet from Llaneras and Rosales, at the time of the transaction. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. Oliva's September 6, 1994, Purchase When Oliva approached Rosales, he handed Rosales $20.00. Rosales thereupon took out a folded napkin from one of his pockets and unfolded it on top of the Counter. Inside the napkin were approximately ten clear plastic bags, each of which contained a white powdery substance. Rosales handed one of the bags to Oliva. The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife was behind the Counter, approximately six feet from Llaneras and Rosales, and was facing in their direction at the time of the transaction. The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of cocaine. The September 14, 1994, Visit Oliva and Llaneras next visited the Restaurant on September 14, 1994. When they arrived at the Restaurant, Rosales was seated at the Counter talking on the telephone. Oliva sat down at the Counter next to Rosales and handed him $20.00. As he had done during his previous encounter with Oliva on September 6, 1994, Rosales took out a folded napkin from one of his pockets and unfolded it on top of the Counter. Inside the napkin was a clear plastic bag containing a white powdery substance. Rosales handed the bag to Oliva. The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife and the barmaids on duty were behind the Counter at the time of the transaction. The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. The September 15, 1994, Visit Oliva and Llaneras returned to the Restaurant on the following day, September 15, 1994. Gaming Activities During their visit, they heard a loud commotion in the kitchen and went to investigate. Upon entering the kitchen, 4/ they observed several persons, including Respondent and Rosales, gathered around a table participating in a game similar to roulette. The table was round and approximately three feet in diameter. It was filled with indentations painted either black or white. A funnel was held above the center of the table through which a marble was dropped. Participants in the game bet on whether the marble would come to rest on a black or white colored indentation. If the marble landed on a white indentation, the person dropping the marble would win the money that was in the pot. If it landed on a black indentation, the other player(s) would win. The game did not require any skill to play. Its outcome was based entirely on chance. After entering the kitchen, both Oliva and Llaneras played the game. Oliva's September 15, 1994, Purchase While Oliva was in the kitchen, Rosales asked him if he "needed anything." Oliva indicated that he did and handed Rosales $20.00. In return, Rosales gave Oliva a clear plastic bag containing a white powdery substance. Oliva and Rosales each spoke in a normal tone of voice during the exchange. Respondent was among those who were in the kitchen at the time of the transaction. The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. Llaneras' September 15, 1994, Purchase Llaneras also made a buy from Rosales in the kitchen. Rosales initiated the transaction. He asked Llaneras if he needed any cocaine. Llaneras responded in the affirmative and gave Rosales $20.00, in return for which Llaneras received from Rosales a clear plastic bag containing a white powdery substance. Llaneras and Rosales each spoke in a louder than normal tone of voice during the exchange. Respondent was in the kitchen a few feet away from Llaneras and Rosales when the transaction took place. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine. The September 16, 1994, Visit The next day, September 16, 1994, Oliva and Llaneras came back to the Restaurant. During their visit on this date, they each made buys from Rosales. Oliva's September 16, 1994, Purchase Rosales was at the Counter talking with Respondent's wife when Oliva approached him. After greetings were exchanged, Rosales asked Oliva if he "needed anything," in response to which Oliva handed Rosales $20.00. Rosales then gave Oliva a clear plastic bag containing a white powdery substance. Oliva and Rosales each spoke in a normal tone of voice during the exchange. The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine. Llaneras' September 16, 1994, Purchase Rosales was in the kitchen when Llaneras approached him and inquired about purchasing a half of a gram of powdered cocaine. After Llaneras tendered the money needed to make the purchase, Rosales gave him a clear plastic bag containing a white powdery substance. Llaneras and Rosales each spoke in a louder than normal tone of voice during the exchange. Respondent was in the kitchen, approximately three to four feet away from Llaneras and Rosales, when the transaction took place. Respondent's wife was also nearby. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine. The September 22, 1994, Visit Oliva and Llaneras paid separate visits to the Restaurant on September 22, 1994. During their visits, they each made buys from Rosales. Oliva's September 22, 1994, Purchase Rosales was at the Counter talking with Respondent's wife when Oliva walked up to him. Rosales interrupted his conversation with Respondent's wife to ask Oliva if he "needed anything." In response to Rosales' inquiry, Oliva handed Rosales $20.00. Rosales then handed Oliva a clear plastic bag containing a white powdery substance. Oliva and Rosales each spoke in a normal tone of voice during the exchange. Respondent's wife was behind the Counter, approximately four to five feet from Oliva and Rosales, when the transaction took place. The substance Oliva had purchased from Rosales at the restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. Llaneras' September 22, 1994, Purchase Llaneras encountered Rosales as Rosales was leaving the Restaurant. Rosales asked Llaneras if he "needed anything." Llaneras responded in the affirmative. Rosales, in turn, told Llaneras to wait at the Counter. Rosales then left the Restaurant. He returned shortly thereafter with a clear plastic bag containing a white powdery substance, which he handed to Llaneras. The transaction took place in plain view of Respondent's wife, who was approximately three feet away behind the Counter. Respondent was on the premises at the time of the transaction. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. Llaneras' September 28, 1994, Visit Llaneras next visited the Restaurant on September 28, 1994. Rosales was seated at the Counter when Llaneras entered the Restaurant. He saw Llaneras enter and walked up to him. Llaneras greeted Rosales by telling Rosales, in a normal tone of voice, that he wanted to purchase cocaine. He then handed Rosales $20.00. In return, Rosales gave Llaneras a clear plastic bag containing a white powdery substance. Respondent's wife was behind the Counter when the transaction took place. Respondent was on the premises. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine. Oliva's September 29, 1994, Visit Oliva returned to the Restaurant on September 29, 1994. He met Rosales at the Restaurant. As was his usual custom when he conversed with Oliva, Rosales asked if Oliva "needed anything." As was his customary response to such an inquiry, Oliva handed Rosales $20.00. Rosales then stepped outside the Restaurant and retrieved from his car, which was parked in front of the Restaurant, a clear plastic bag containing a white powdery substance. When he returned to the Restaurant, he handed the bag to Oliva. The transaction occurred in plain view at the Counter. There was no effort to conceal what was taking place. Oliva and Rosales each spoke in a normal tone of voice during the exchange. Respondent's wife was behind the Counter at the time of the transaction. Respondent was on the premises. Respondent's Responsibility for Drug Transactions on Licensed Premises Although Respondent may not have been directly involved in any of the above-described sales of cocaine that took place at the Restaurant during the Hialeah Police Department's undercover operation and he may not have even been on the licensed premises at the time of some of these sales, given the persistent and repeated nature of the transactions and the open manner in which they were made, the inference is made that Respondent either fostered, condoned, or negligently overlooked them.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding Respondent guilty of the violations alleged in Counts 1 and 3 through 12 of the Administrative Action and penalizing Respondent therefor by revoking his alcoholic beverage license number 23-15943, series 2-COP. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of August, 1995. STUART M. LERNER 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 11th day of August, 1995.
The Issue Whether the Respondent failed to have the seating capacity required of a licensee in its category as alleged by the Notice to Show Cause and, if so, what disciplinary action should be taken.
Findings Of Fact At all times pertinent hereto, Respondent, EDM of Key West, Inc., d/b/a/ Portside, was the holder of a special restaurant license issued by Petitioner, Division of Alcoholic Beverages and Tobacco, Department of Business Regulation. This license, Series 6-COP, Number 54-00999SRX, authorizes Respondent to sell alcoholic beverages, subject to regulation by Petitioner and other authorities, in conjunction with its restaurant business. On November 16, 1988, Petitioner's law enforcement investigator, David Myers, inspected Respondent's premises to determine whether Respondent was in compliance with the regulations applicable to licensees such as Respondent. Two violations were discovered. The first was that the establishment failed to have sufficient seating for patrons under the covered portion of the premises. The second was that the establishment failed to keep adequate records of its sales of food and of its sales of alcohol as required by regulation. Official Notices were issued by Petitioner to Respondent for both violations. Investigator Myers told Respondent's dining room manager on November 16, 1988, that the establishment was required to have seating sufficient for at least 150 dining patrons under a permanent roof and that the seats located outside the roofed area could not be counted toward that requirement. This advice is consistent with Petitioner's interpretation of Rule 7A-3.014, Florida Administrative Code. Prior to December 12, 1988, Investigator Myers advised the management of Respondent that he intended to make a follow-up inspection on December 12, 1988. On December 12, 1988, there were 132 seats for dining patrons within the roofed area. Other seats for dining patrons were located in an uncovered area. Petitioner filed a Notice to Show Cause subsequent to its inspection of December 12, 1988, against Respondent alleging, in pertinent part, the following: On December 12, 1988, you, EDM OF KEY WEST INC., failed to have accommodations for service of 150 patrons at tables on your licensed premises . . . . The Notice to Show Cause did not cite Respondent for failure to keep adequate records of sales. On May 22, 1989, an inspection revealed that there was seating for only 118 dining patrons under the roofed area. On June 5, 1989, Respondent was found to be in compliance with the seating requirement. Respondent filed a timely request for hearing and therein denied the factual allegations of the charge brought against it.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having failed to have accommodations for the seating of 150 dining patrons as required by Section 561.20(2)(a)4, Florida Statutes, and by Rule 7A-3.014 and Rule 7A-3.015, Florida Administrative Code, and which imposes an administrative fine of $500.00 against Respondent. DONE and ENTERED this 21st day of July, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1989. APPENDIX The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: Addressed in paragraph 1. Rejected as being unnecessary to the conclusions reached. Addressed in paragraph 2. Addressed in paragraph 3. 5-6. Addressed in paragraphs 4-5. Rejected in part as being unnecessary or subordinate to the findings made. 7-8. Addressed in paragraph 7. Rejected as being unnecessary to the result reached. Addressed in paragraph 3. 11-16. Rejected as being recitation of testimony or subordinate to the findings made. The proposed findings of fact submitted on behalf of Respondent are addressed as follows: Addressed in paragraph 1. Rejected as being unnecessary to the conclusions reached. Addressed in paragraph 2. Addressed in paragraph 3. 5-6. Addressed in paragraphs 4-5. Rejected in part as being unnecessary or subordinate to the findings made. 7-8. Addressed in paragraph 7. Rejected as being unnecessary to the result reached. Addressed in paragraph 3. 11-16. Rejected as being recitation of testimony or subordinate to the findings made. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel 725 South Bronough Street Tallahassee, Florida 32399-1000 James T. Hendrick, Esquire MORGAN & HENDRICK, P.A. Post Office Box 1117 Key West, Florida 33041 Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether Respondent's pronouncement that special restaurant licenses issued prior to January 1, 1958, that have not remained in "continuous operation" are thereby (as a result of their lack of "continuous operation") rendered invalid pursuant to Section 561.20(5), Florida Statutes, and therefore not subject to delinquent renewal pursuant to Section 561.27, Florida Statutes (Challenged Statement) is a rule that violates Section 120.54(1)(a), Florida Statutes, as alleged by Petitioners.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: There are various types of DABT-issued licenses authorizing the retail sale of alcoholic beverages. Among them are quota licenses, SRX licenses, and SR licenses. All three of these licenses allow the licensee to sell liquor, as well as beer and wine. Quota licenses, as their name suggests, are limited in number. The number of quota licenses available in each county is based upon that county's population. SRX and SR licenses are "special" licenses authorizing the retail sale of beer, wine, and liquor by restaurants. There are no restrictions on the number of these "special" licenses that may be in effect (countywide or statewide) at any one time. SRX licenses are "special restaurant" licenses that were originally issued in or after 1958.2 SR licenses are "special restaurant" licenses that were originally issued prior to 1958. For restaurants originally licensed after April 18, 1972, at least 51 percent of the licensed restaurant's total gross revenues must be from the retail sale of food and non- alcoholic beverages.3 Restaurants for which an SR license has been obtained, on the other hand, do not have to derive any set percentage or amount of their total gross revenues from the retail sale of food and non-alcoholic beverages. DABT-issued alcoholic beverage licenses are subject to annual renewal.4 License holders who have not timely renewed their licenses, but wish to remain licensed, may file an Application for Delinquent Renewal (on DABT Form 6015). Until recently, it was DABT's longstanding policy and practice to routinely grant applications for the delinquent renewal of SR and other alcoholic beverage licenses, regardless of the reason for the delinquency. DABT still routinely grants applications to delinquently renew alcoholic beverage licenses other than SR licenses, but it now has a "new policy" in place with respect to applications for the delinquent renewal of SR licenses. The "new policy" is to deny all such applications based upon these SR licenses' not having been in "continuous operation," action that, according to DABT, is dictated by operation of Section 561.20(5), Florida Statutes, a statutory provision DABT now claims it had previously misinterpreted when it was routinely granting these applications. Relying on Section 561.20(5), Florida Statutes, to blanketly deny all applications for the delinquent renewal of SR licenses was the idea of Eileen Klinger, the head of DABT's Bureau of Licensing. She directed her licensing staff to implement the "new policy" after being told by agency attorneys that this "was the appropriate thing [from a legal perspective] to do." As applicants applying to delinquently renew their SR licenses (which were both originally issued in 1956), Petitioners are substantially affected by DABT's "new policy" that SR licenses cannot be delinquently renewed because they have not been in "continuous operation," as that term is used in Section 561.20(5), Florida Statutes. Their applications for the delinquent renewal of their licenses would have been approved had the status quo been maintained and this "new policy" not been implemented. Abkey filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 2005) on February 21, 2007. On the application form, Abkey gave the following "explanation for not having renewed during the renewal period": "Building was sold. Lost our lease." On April 2, 2007, DABT issued a Notice of Intent to Deny Abkey's application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 2005, therefore it did not comply with the requirements and is no longer valid. Amy Cat filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 1999) on December 6, 2006. On the application form, Amy Cat gave the following "explanation for not having renewed during the renewal period": "Building was closed." On June 8, 2007, DABT issued a Notice of Intent to Deny Amy Cat's application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 1999, therefore it did not comply with the requirements and is no longer valid. SR licenses will not be allowed to be moved from the location where the license was originally issued.
