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, Inside Entertainment, Inc., which trades under the name of Fox Hunter, is the holder of beverage license No. 58-770, Series 2-COP. This license allows the consumption of alcoholic beverages on the premises, located at 1718 South Orange Avenue, Orlando, Florida. The petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida which has as its responsibility the licensure and regulation of beverage license holders in the State of Florida. On November 15, 1979 , Beverage Officer W. R. Wiggs entered the licensed premises of Fox Hunter to investigate alleged Beverage Law violations. He was approached by Linda Kay Fardette who offered to give him a "lap dance," which he accepted. To perform the "lap dance," Ms. Fardette straddled Officer Wiggs' lap, rubbing her pubic area against his genitals in a series of gyrations performed during the playing of a musical recording. She wore a bikini bottom, however, her breasts were bare and made contact with Wiggs during the "lap dance." Ms. Fardette offered a second "lap dance" to Officer Wiggs which he also accepted. She asked and received three dollars for each of the two "lap dances." During these "lap dances," Officer Wiggs became sexually aroused, obtaining penile erection. (Count 3). Officer Wiggs observed Ms. Fardette move to the stage to perform a dance routine announced over the public address system. During this dance, Ms. Fardette removed all her clothes and exposed her vagina to patrons in the audience. She ran her finger through the lips of her vagina while so exposing herself. (Count 1). Officer Wiggs was approached by Brenda Macy Janciak, who offered him a "lap dance." He accepted and paid three dollars for each of two "lap dances." The motions, upper body nudity and contact were similar to that of Linda Kay Fardette, detailed above. Officer Wiggs was sexually aroused during the "lap dances," obtaining penile erection. (Count 4). Officer Wiggs observed Ms. Janciak move to the stage upon introduction over the public address system. During the dance routine, Ms. Janciak removed all her clothes and exposed her vagina to patrons in the audience. She ran her finger through the lips of her vagina while so exposing herself. (Count 2). On November 15, 1979, Beverage Officer J. E. Kiker, Jr. entered the licensed premises of Fox Hunter to investigate alleged Beverage Law violations. He observed Bonnie Joy Sawyer onstage, where she was introduced by a mistress of ceremonies. Her dance involved complete nudity. At one point, Ms. Sawyer spread her legs, exposing her anal-vaginal area, which she illuminated with a cigarette lighter. The dance also involved rubbing her pubic area with her hand and moving her hips in an undulating fashion. (Count 5). Office Kiker observed Leah Damaris Wilson perform a similar dance onstage. Again, this dance involved total nudity, exposure of her anal-vaginal area and illumination of this area with a cigarette lighter. (Count 6). Officer Kiker observed Wendy Kay Knight perform a nude dance. She was introduced by the mistress of ceremonies, disrobed during the dance sequence, exposed her vagina and rubbed her pubic area during the dance. (Count 9). Wendy Kay Knight also performed a "lap dance" with Officer Kiker for a five-dollar charge. The "lap dance" was performed as described above and involved the rubbing of Ms. Knight's pubic area against Officer Kiker's genitals. Her breasts were bare and made contact with his person. Officer Kiker became sexually aroused during the "lap dance," obtaining penile erection. (Count 14). Officer Kiker observed a woman known as "Marlene," who was dancing onstage. She approached him and offered to perform a "lap dance" for a charge of five dollars. The "lap dance" was performed as described above, with "Marlene" rubbing her pubic area against Officer Kiker's genitals. Her nude breasts made contact with him during this dance. Officer Kiker became sexually aroused during the dance, obtaining penile erection. (Count 15). On November 19, 1979, Beverage Officer M. L. Imperial entered the licensed premises of Fox Hunter to investigate alleged Beverage Law violations. He observed a woman known as "Nina" on the stage. She disrobed onstage and was totally nude during a portion of the dance. During this routine, she bent over, exposing her vaginal and anal openings to the audience and running her finger through the lips of her vagina. (Count 7). Officer Imperial observed a woman known as "April" dance onstage while completely nude. She performed essentially the same gestures as "Nina," bending over so as to expose her anal and vaginal openings and running her finger through the lips of her vagina. (Count 8) Officer Imperial observed Darlene Helen Poulliot dance onstage partially nude. She performed a dance routine similar to that of "April" and "Nina," hut did not remove the bottom of her bikini costume. (Count 10). Officer Imperial observed a woman known as "Sunny" dancing while completely nude. She spread the lips of her vagina and used a cigarette lighter to illuminate this orifice. She also ran her finger through her vaginal lips. (Count 12). Officer Imperial was approached on separate occasions by Bonny Joy Sawyer and Leah Damaris Wilson, who each offered him "lap dances." He accepted one "lap dance" from Ms. Sawyer and two from Ms. Wilson, paying five dollars for each "lap dance." The women straddled Officer Imperial, rubbing their pubic areas against his genitals and performing a series of gyrations. The women wore only bikini bottoms and had breasts exposed during the "lap dance." Officer Imperial did not become sexually aroused. (Counts 16 and 17). The Respondent stipulated to the fact that the stage dancers received tips from patrons and did not contest that the above named dancers were employees or agents of the licensee. Neither did Respondent deny that the stage dancing and "lap dancing" were within the scope of their employment. Respondent takes the position that nude dancing is generally tolerated in the Orlando area and that "lap dances" do not constitute sexual behavior as Petitioner asserts. Respondent presented, as an expert witness, an associate professor of psychology at the University of Central Florida. The witness holds a doctorate in psychology and teaches courses in human sexuality. This testimony established that nude dancing and "lap dancing" are typical in the so-called adult entertainment field. While he did not deny the sexual connotations of these dances, he established that fantasies play a part in the arousal of male patrons. In this regard, Respondent also presented a lay witness who frequents topless bars and who has not been aroused by "lap dances."
Recommendation Based on the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violating Section 800.03, Florida Statutes (1979), as charged in Counts 1, 2, 5, 6, 7, 8, 9 and 12 of the Notice to Show Cause/Administrative Complaint. It is further RECOMMENDED that all other charges alleging violation of Section 800.03, Florida Statutes (1979), be dismissed. It is further RECOMMENDED that all charges alleging violation of Section 877.03, Florida Statutes (1979), be dismissed. It is further RECOMMENDED that Respondent, Inside Entertainment, Inc., d/b/a Fox Hunter, be fined $1,000. RECOMMENDED this 5th day of February, 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 5th day of February, 1981. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard L. Wilson, Esquire Metcalf Building, Suite 909 100 South Orange Avenue Orlando, Florida 32801
The Issue Whether the Respondent's issuance of an Underage Prohibition Order is appropriate or should be rescinded.
Findings Of Fact Respondent, the City of Gainesville (the City), is a municipal corporation organized under the laws of the State of Florida. Petitioner, Fubar, is an alcoholic beverage establishment as defined in section 4-51, Gainesville Code of Ordinances, located in Gainesville. The occupancy load for Fubar is greater than 201 persons. Section 4-51, Gainesville Code of Ordinances (the Ordinance), defines "underage drinking incident" and "underage prohibition order" as follows: Underage drinking incident means any physical arrest or notice to appear (NTA) issued for possession or consumption of an alcoholic beverage by a person under the age of 21 which results in an adjudication of guilt, finding of guilt with adjudication withheld, waiver of right to contest the violation, plea of no contest including, but not limited to, payment of fine or civil penalty, or entering into an agreement for deferred prosecution. Underage prohibition order means an order issued by the city manager or designee which prohibits an alcoholic beverage establishment as herein defined, from admitting patrons under the age of 21 into such establishments during specified times. Pursuant to section 4-53 of the Ordinance, an underage prohibition order will be issued to an alcoholic beverage establishment if 10 or more underage drinking incidents occur at that establishment during any quarter when the establishment has an aggregate occupancy load of greater than 201. On October 15, 2012, a Prohibition Order was issued pursuant to the Ordinance and served upon Petitioner on October 25, 2012, based upon 13 underage drinking incidents that occurred in one calendar quarter. Subsequent to the issuance of the Prohibition Order, an additional three underage drinking incidents occurred. The City gave notice to Fubar of these subsequent incidents on January 7, 2012, and they were considered as part of this case. Fubar is located in the "downtown district" of Gainesville, which is a square roughly located between Northwest 3rd Avenue, Southwest 3rd Avenue, Southeast 3rd Street, and Northeast 3rd Street. The duties of the Gainesville Police Department (GPD) officers assigned to patrol this downtown area include going into establishments that sell alcoholic beverages to check for underage drinking, a common problem in Gainesville, a college town. Four GPD officers who made arrests at Fubar testified at hearing. While on patrol for underage drinking, the officers enter Fubar, and similar establishments in the downtown area, wearing uniforms. Typically, it is the underage offender's actions that alert the officers to a possible incidence of underage drinking. That is, upon seeing a uniformed officer, an underage drinker may attempt to hide an alcoholic drink, quickly put a glass or cup down, quickly drink the contents of a cup and attempt to throw it away, or quickly hand the drink to someone of legal drinking age. The officers have access to law enforcement databases not generally available to the public known as "DAVID" and "FCIC/NCIC," which allow them to obtain photos and other identifying information regarding the suspected underage offenders. All four officers who made arrests at Fubar for underage drinking also made arrests for that offense at similar establishments in downtown Gainesville. Of the 16 total underage drinking incidents which occurred at Fubar during the relevant time period, the evidence at hearing proved that the City made 15 arrests for underage drinking at Fubar and secured 15 deferred prosecutions. The parties stipulated that four of these arrests were of persons who possessed fake or fraudulent identification cards, or identification cards belonging to other persons.1/ The remaining arrests made were of underage persons wearing “under-21” wristbands who were found to be in possession of alcohol, and persons who were wearing legal age wristbands, but who were actually underage. However, there is insufficient competent evidence to establish how these individuals obtained the alcoholic beverages or the legal age wristbands.2/ On one night, Officer Scott arrested an underage person in Fubar who, upon seeing Officer Scott, placed a drink down on a pool table. Officer Scott observed what appeared to be an off-duty Fubar "bouncer" standing near the underage offender and playing pool. This offender was in possession of someone else's ID showing legal drinking age. At the time of the hearing, there were no administrative actions filed against Fubar's alcoholic beverage license by the Division of Alcoholic Beverages and Tobacco. None of the law enforcement officers testified that they observed underage persons obtaining alcohol from any employee of Fubar. Efforts of the Petitioner Matthew Merdian is the owner of Fubar. Mr. Merdian has been either a manager or owner of bars for the past 16 years. Mr. Merdian is knowledgeable about the laws regarding underage drinking and of the best practices in the industry regarding this issue. Persons who are under 21 are allowed to enter Fubar and similar establishments in Gainesville. Fubar differentiates between underage and legal age patrons by the use of wristbands which have the Fubar logo on them. The patron presents his or her identification at the front door. The Fubar logo is repeated around the entire band for legal age patrons, but the band designating underage patrons states "under 21" in bold letters and has a small logo. Wristband colors are alternated nightly, therefore colors are not repeated on consecutive nights and the sequence is not repeated the following week. The wristbands are designed to show efforts of tampering in an attempt to prevent underage patrons from obtaining wristbands given to legal age patrons. The only persons who have access to the wristbands are Mr. Merdian and his general manager, Charles Williams. Petitioner actively participates in a responsible hospitality vendor program furnished by Regulatory Compliance Services at a cost of $1,200 per year. Mr. Merdian, Mr. Williams, and staff attend those training programs. Petitioner has adopted a written manual for door and security personnel that includes several specific directives for the prevention of underage drinking and the responsibilities of individual employees to further these policies. The manual instructs the following: Receive and account for over-21 wristbands Every patron is to present a valid ID Valid ID is: US driver's license, passport card, military ID, state- issued ID IDs may NOT be expired UNACCEPTABLE IDs: Birth Certificate, Social Security Card, out of US driver's license, school ID IDS are checked with face, height, and weight If a person is questionable ask a detail such as "What's your middle name?" Asking for a middle name usually throws a person off who is lying Anyone presenting a "fake ID" will be turned away All other questions concerning validity will be brought to the attention of the manager Upon reentry of patrons, check the wristband to make sure it hasn't been altered or switched with a different patron. Employees are subject to suspension or termination for violating the above policies regarding underage patrons. At times, Mr. Merdian has paid a cash "reward" for successfully preventing admission of someone using a fraudulent ID. Fubar trains its employees as to these policies and reviews them each quarter when they go through the responsible vendor program. All employees participate in this program. Fubar trains and instructs its doormen to require a picture ID for all patrons and further instructs them regarding measures to ensure that the ID is valid and belongs to the person who presented it. Fubar uses a fluorescent UV light to identify holograms which are present on valid Florida driver's licenses and which are not present on fake IDs. Wristbands are checked to ensure that they are not frayed or tampered with, which are indications that they have been taken off and used again. Mr. Merdian makes an effort to employ older doormen, preferably with military backgrounds, who follow instructions and are less likely to be friends with patrons. Fubar's security employees circulate within the establishment looking for “under-21” wristbands and the kind of body language previously described by police witnesses which raises suspicions of underage patrons trying to evade detection. Fubar employs both door staff and security personnel, both of which have responsibilities concerning the prevention of underage drinking at their establishment. Additionally, bartenders are instructed to ask for ID if they have a suspicion that an underage patron is banded with a legal age wristband. In addition to possible termination, bartenders are also instructed about potential personal criminal liability for serving underage patrons. There was no evidence that an employee of Fubar was observed selling or giving an underage drinker any alcoholic beverage. Mr. Merdian has visited every club of a similar nature in downtown Gainesville, and he has not observed any practices in those clubs that he finds superior to the ones employed by Fubar. In the past, the general manager, Mr. Williams, worked as a security employee at the club under previous ownership. His duties included checking IDs and looking for underage drinkers. He carries on these responsibilities as part of being general manager. He personally works with new security personnel for a few nights until they feel comfortable with their responsibilities. Mr. Williams keeps track of the wristbands, stores them in a locked location, and personally gives them to the doorman each night. Mr. Williams is on the premises every night that Fubar is open.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is Recommended that the Underage Prohibition Order issued to Fubar be vacated. DONE AND ENTERED this 14th day of March, 2013, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 14th day of March, 2013.
The Issue Whether the Respondent committed the violation alleged in the Administrative Complaint dated April 12, 2010, and, if so, the amount of surcharge, late penalties, and interest owed, and the administrative penalty, if any, that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division, within the Department of Business and Professional Regulation, is the state agency responsible for regulating the distribution and sale of alcoholic beverages within the State of Florida. § 561.02, Fla. Stat. Pertinent to this proceeding, the Division maintained a district office located in Margate, Florida, which, in turn, had satellite offices located in Fort Myers, Florida, and West Palm Beach, Florida. At the times material to this proceeding, S.T. Complex held a 4COP Quota License, number 60-13059, which was issued by the Division and which, among other things, allowed S.T. Complex to sell alcohol by the drink for consumption on the its premises. In a letter dated October 11, 2007, the Division advised S.T. Complex that it was initiating a desk audit of S.T. Complex’s surcharge reports for the period extending from September 1, 2004, through June 30, 2007, using distributor sales information. The audit period was subsequently changed to the period extending from August 1, 2006, through June 30, 2007, because an audit of S.T. Complex’s surcharge reports had been completed for the period ending July 30, 2006. The audit period ended with June 30, 2007, because the surcharge on the sale of alcoholic beverages had been repealed as of that date. A questionnaire was enclosed with the October 11, 2007, letter, and S.T. Complex was asked to submit the completed questionnaire to the office of the Division located in Margate, Florida, no later than October 25, 2007. S.T. Complex was further directed to contact Yvonne McNaughton, the Division auditor assigned to conduct the audit of S.T. Complex’s surcharge reports, at the Division's Margate office if S.T. Complex had any questions about the audit; a phone number for Ms. McNaughton was provided in the letter. S.T. Complex did not return the questionnaire enclosed with the October 11, 2007, letter and did not contact Ms. McNaughton regarding the audit. Consequently, Ms. McNaughton used the questionnaire submitted by S.T. Complex for the previous audit. The questionnaire indicated that S.T. Complex had chosen the "purchase method" for the computation of the surcharge owed on its sales of alcoholic beverages, and S.T. Complex listed five distributors from which it purchased its supply of alcoholic beverages. Under the purchase method for calculating the alcoholic beverage surcharge in effect at the times material to this proceeding, a business reported its beginning inventory and paid the surcharge on the full inventory. The business was required to send in monthly reports disclosing the amount of alcoholic beverages, by category, that the business purchased the previous month to replenish the original inventory. The business was required to remit the surcharge monthly on the amount of alcoholic beverages purchased. The business would then provide the Division its ending inventory and would receive a credit against the total surcharges paid throughout the year. Pertinent to this proceeding, distributors of alcoholic beverages in Florida were required to report to the Division each month a detailed listing of the sales of alcoholic beverages in Florida. The distributors reported the name of the business, the amount in gallons of the various categories of alcoholic beverages sold to that business during the month, and the invoice number for each sale. This information was put into a database maintained by the Division, and the information in the database was used by the Division to compare the amount of purchases reported by a business with the amount of sales to that business reported by the distributors. In conducting the audit of S.T. Complex, Ms. McNaughton discovered that it had not submitted any surcharge reports during the audit period and had not remitted any surcharge on the purchase of alcoholic beverages during the audit period. Ms. McNaughton, therefore, relied on the information provided by the distributors reporting sales of alcoholic beverages to S.T. Complex for the audit period. The amount of alcoholic beverages the distributors reported selling to S.T. Complex during the audit period was 2604 gallons of beer, 138.68 gallons of wine, and 1724 gallons of liquor. After Ms. McNaughton deducted an allowance for spillage, she calculated that the amount of alcoholic beverages subject to the surcharge was 2473.81 gallons of beer, 131.74 gallons of wine, and 1552.01 gallons of liquor. Ms. McNaughton then calculated that S.T. Complex owed a total surcharge on alcoholic beverages purchased during the audit period of $7,129.90, which included a surcharge of $346.34 for beer; $140.96 for wine; and $6,642.60 for liquor purchased. Because S.T. Complex had not paid any surcharge during the audit period, a reporting penalty in the amount of $3,433.70 was added to the amount of the surcharge due, together with interest in the amount of $512.53, for a total statutory liability of $11,076.13. A letter dated April 22, 2008, was prepared by the Division advising S.T. Complex of the amount of statutory liability owed as a result of the audit. Prior to sending the audit letter to S.T. Complex, the audit was reviewed by another Division auditor to determine if Ms. McNaughton had completed the audit properly and to verify her calculations. This review was completed on June 4, 2008, and no errors were found. The April 22, 2008, letter was sent to S.T. Complex by certified mail on June 11, 2008, and the return receipt shows that it was received on June 12, 2008. S.T. Complex was advised that, if it disagreed with the audit findings, it had 30 days from the date the letter had been received to contact Ms. McNaughton, the auditor in charge of the audit. Ms. McNaughton's phone number and fax number were included on the letter, as well as the address for the Division's Margate, Florida, office. Ms. McNaughton did not receive any communication from S.T. Complex about the audit, and the matter was forwarded to Captain Carol Oswiany on August 28, 2008, with a request that she file an administrative case against S.T. Complex for failure to pay the amounts stated in the surcharge audit for August 1, 2006, through June 30, 2007. At the times material to this proceeding, Frank Garcia was the owner of S.T. Complex, and he managed the Fun House Nightclub, which was located in West Palm Beach, Florida. Mr. Garcia was current with his surcharge payments as of the end of July 2006, and he was aware that the surcharge would be terminated as of June 30, 2007. Mr. Garcia believed that, because he would have an inventory of alcoholic beverages on June 30, 2007, he would receive a substantial offset against the surcharge he owed for the period extending from August 1, 2006, through June 30, 2007. Consequently, anticipating that his surcharge liability would be small and that it would be better to get a credit against the surcharge owed than to wait for a refund of the surcharge paid during the audit period, Mr. Garcia decided not to submit monthly reports on the purchases of alcoholic beverages for the nightclub during the audit period or to remit the surcharge due on these monthly purchases. At the times material to this proceeding, Mr. Garcia kept his weekly inventory on a form he had devised for his own use. He used the point system for determining how much of each category of alcoholic beverages had been used during a given period of time. Mr. Garcia compared this information with the amount of alcoholic beverages in his stockroom, and he was able to determine how much of the various categories of alcoholic beverages he needed to purchase to replenish his inventory. The information on the Mr. Garcia's forms was handwritten, and it was not transferred into a computer database. Mr. Garcia routinely discarded these inventory forms; they were used only for determining how much alcoholic beverages he needed to purchase for a given period of time and were essentially useless after the alcoholic beverages were ordered. The nightclub was located a few blocks from the Division's West Palm Beach office, which was a satellite office of the district office in Margate. Because of its close proximity to Mr. Garcia's place of business, he routinely dealt with that office and had rarely had contact with the Division's Margate or Tallahassee, Florida, offices. After he received the letter dated April 22, 2008, Mr. Garcia went to the Division's West Palm Beach office and spoke with Captain Carol Owsiany. According to Mr. Garcia, Captain Owsiany told him how to handle the matter. Mr. Garcia then prepared a letter and went back to the West Palm Beach office and spoke with a Mr. Wilson. Mr. Wilson telephoned the Division's Tallahassee office, and Mr. Garcia assumes that Mr. Wilson was told how to proceed. Mr. Garcia provided Mr. Wilson with his explanation of why he believed the audit was wrong and told Mr. Wilson he wanted an informal hearing. Mr. Garcia observed Mr. Wilson type something into the office computer and assumed that he was transmitting the pertinent information to Tallahassee. Although Mr. Garcia's testimony on this point is vague and somewhat confusing, he insisted that he provided the Division with the ending inventory of June 30, 2007, although it is unclear to whom he provided the inventory. It is clear, however, that Mr. Garcia had no contact with Ms. McNaughton. Mr. Garcia heard nothing further from the Division until he was served with the Administrative Complaint dated April 12, 2010, which was signed by then Major Owsiany. At the time he received the Administrative Complaint and at the time of the final hearing, Mr. Garcia did not have in his possession a copy of the ending inventory for June 30, 2007. Ultimate findings of fact The evidence presented by the Division is sufficient to establish with the requisite degree of certainty that S.T. Complex failed to file monthly reports on the quantities of the alcoholic beverages it purchased during the audit period and failed to remit the surcharge due on its purchases of alcoholic beverages for the audit period. The testimony of Mr. Garcia that, upon receiving the April 22, 2008, letter, he went to the Division's West Palm Beach office for instructions on how to proceed and that he thought the matter had been resolved as a result of the actions of the Division's West Palm Beach office is credited. Significantly, however, Mr. Garcia failed to follow the explicit instructions in the April 22, 2008, letter that he contact Ms. McNaughton regarding any disagreement he had with the audit and explain to her the reasons for contesting the findings. For this reason, Mr. Garcia's defense that he timely advised the Division of his disagreement with the audit and provided the Division with the ending inventory for June 30, 2007, is not persuasive.
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: Finding S.T. Complex LLC, d/b/a Fun House Nightclub, guilty of having failed to report and remit the surcharge on alcoholic beverages consumed on its premises during the period extending from August 1, 2006, through June 30, 2007, in violation of section 561.501(1)(a), Florida Statutes; Requiring S.T. Complex LLC to remit to the Division $11,076.13, which is composed of the principal balance of the surcharged owed for the period extending from August 1, 2006, through June 30, 2007, in the amount of $7,129.90, late penalties in the amount of $3,433.70, and interest in the amount of $512.53. Finding that, as a consequence of its violation of section 561.501(1)(a), S.T. Complex violated the Beverage Law and, therefore, section 561.29(1)(a); and Imposing an administrative fine in the amount of $1,782.47, as specified in the table attached to Florida Administrative Code Rule 61A-2.022 DONE AND ENTERED this 26th day of January, 2011, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 26th day of January, 2011.
The Issue The issues in this case are whether Respondent violated section 464.204(1)(b), Florida Statutes, by intentionally violating section 456.072(1)(z), Florida Statutes, due to being unable to practice as a nursing assistant with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition; and, if so, what penalty shall be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of nursing assistants, pursuant to section 20.43, and chapters 456, and 464, Florida Statutes. At all times material to the Administrative Complaint, Respondent was a certified nursing assistant (C.N.A.) in the State of Florida, having been issued Certificate No. CNA 165217. Respondent is a convicted felon, having been convicted in 1988 of the felony offenses of grand theft and forgery. The conviction constitutes a crime of dishonesty. In 1989, Respondent was convicted of felony possession of cocaine and sale of cocaine. In 1992, Respondent was convicted of robbery, a felony. In 1998, Respondent was convicted of possession of cocaine, a felony. Respondent was sentenced and incarcerated in 2003 to a term of three-and-a-half years. In addition to the numerous felony charges, Respondent committed multiple misdemeanors over the past 30 years. In 2007, Respondent applied to be a C.N.A. in Florida. Respondent explained her criminal history in her application to become a C.N.A., as follows: The charges that were committed happen [sic] at a time in my life when I was living on the streets. I stole out of stores in order to get clothes to wear and sell to support my addiction. I use [sic] drugs and alcohol to escape. I hung around a lot of wrong people who did drugs and stole for a living. To me this was normal. I did everything under the sun in order to get high. My life was very unmanageable. I wrote checks out of my mother’s checking account to purchase drugs and alcohol. I unchanging [sic] sex for drugs, so before long the relationships that I got involved in boyfriend’s would dealt [sic] drugs. I would sell drugs in order to get the drugs to [sic] and get enough money to make whomever I was dating at the time happy [sic]. I have been drug free since 2000. I have maintained steady employment, and stable housing. I attend A.A. meeting [sic] on a regular basis. I have successfully completed Parenting, and Behavioral Healthcare Technical training classes given by the Operation PAR Incorporation. I am currently in my second year of school at St. Petersburg College in the Human Service Program. With hopes [sic] of earning a [sic] associate degree in Substance Abuse Counseling. I have positive friends and role models that do not indulge in any criminal activities or drugs. I also attend church services, and participate in church functions. Also, I have been raising two children as a single parent. In conclusion, I have successfully completed probation and as well have not committed any new offenses. Respondent was first licensed as a C.N.A. in the State of Florida in April 2008. On April 24, 2015, Respondent attended a party where she consumed alcohol. Early the next morning, SPPD Officer Daniel L’Esperance observed a vehicle parked at an odd angle in the parking lot of a closed gas station. Respondent was asleep behind the wheel of the vehicle with the keys in the ignition. The officer noticed a strong odor of alcohol coming from her breath, slurred speech, unsteadiness on her feet, and watery, bloodshot eyes. Officer L’Esperance told Respondent to call a friend to come pick her up because he believed she was under the influence of alcohol or drugs. Respondent could not find her phone and gave Officer L’Esperance consent to look for her phone in the vehicle. While searching for Respondent’s phone, Officer L’Esperance found a crumpled up dollar bill in the driver’s seat containing what he believed to be cocaine residue. The officer arrested Respondent for the felony offense of cocaine possession. On or about April 26, 2016, at approximately 11:15 p.m., SPPD officers responded to a car accident involving two motor vehicles. Respondent was one of the drivers involved. She had consumed alcohol prior to the accident. Respondent was wearing black scrubs at the time of the car accident. She had slurred speech; glassy, watery, and bloodshot eyes; and alcohol on her breath. She was unsteady on her feet and was disoriented. She exhibited further signs of impairment while participating in the field sobriety exercises. SPPD Officer Michael Karayianes arrested Respondent for driving under the influence of alcohol or drugs. Respondent refused to provide a breath sample for alcohol testing. On August 3, 2016, Lawrence S. Wilson, M.D., a physician specializing in addiction medicine, and hereby found to be an expert in this field, evaluated Respondent pursuant to Department order. Respondent admitted she first consumed alcohol at age 15. She reported that in her past she would consume 12 beers in one drinking session, and she would consume approximately 750ml of liquor every weekend. She consumed alcohol approximately once or twice per month in the two to three months leading up to the evaluation. Respondent reported consuming a maximum of four alcoholic drinks in one sitting during this time period. She stated she had most recently consumed alcohol two days prior to her evaluation. Respondent acknowledged to Dr. Wilson that she is an alcoholic. Respondent acknowledged she first used cocaine at age 15. She most recently used cocaine two days prior to the evaluation. Respondent stated that, other than the use of cocaine two days prior to the evaluation, she had not used cocaine in approximately 20 to 30 years. She acknowledged she has a problem with cocaine. Respondent told Dr. Wilson that she had not admitted herself nor been admitted to any detox facilities, any inpatient treatment, or any outpatient treatment programs. During the evaluation and in her testimony at hearing, Respondent claimed to be in active recovery, attending Alcoholics Anonymous (AA) meetings three to five times per week for the past year. Respondent claimed to have a sponsor and home group. Respondent chaired meetings, but had never told her story as a speaker. On August 3, 2016, Respondent submitted to toxicology tests at Dr. Wilson’s request. The tests were positive for both cocaine and alcohol. These results, which were professionally obtained and are deemed credible, were inconsistent with Respondent’s reported use of alcohol and cocaine. The toxicology results indicated repetitive and frequent use of cocaine in the past two to three months. The toxicology results indicated heavy repeated alcohol use or binging. Respondent’s participation in AA has not prevented her from continuing both alcohol and cocaine use. Her “participation” in AA, at best, can be described as passive and, at worst, as embellished or untrue. Dr. Wilson agrees with the latter assessment, calling Respondent’s reporting of her alcohol and drug abuse “dishonest and deceptive.” He further concluded that Respondent’s minimization and deceptive reporting of her drug and alcohol use indicated that she was in denial of her alcohol and cocaine use disorders. Not surprisingly, Dr. Wilson diagnosed Respondent with severe alcohol use disorder and severe cocaine use disorder. Dr. Wilson recommended Respondent participate in an Intervention Project for Nurses (IPN) monitoring agreement and complete an inpatient treatment program for her cocaine use disorder and alcohol use disorder. Due to Respondent’s current addictions, Dr. Wilson concluded that Respondent is not able to practice as a nursing assistant with the necessary skill and safety to adequately serve patients. Dr. Wilson stated that his opinion would not change even if Respondent participated in AA meetings multiple times a week because the Respondent’s participation in AA is not effectively treating her addiction disorders. He believes she needs more intensive treatment due to her disease and addiction being active. The undersigned finds Dr. Wilson’s opinions and ultimate findings credible and well-substantiated. Respondent has not actively entered into an IPN monitoring agreement nor has she entered or completed an inpatient treatment program for her cocaine use disorder and alcohol use disorder. As recently as August 9, 2016, Respondent submitted a urine sample for a drug screening as a condition of her criminal probation. The sample returned positive for cocaine. In order to have a positive result, the individual tested must have consumed cocaine within 48 to 72 hours of submitting the sample. Even the witnesses called by Respondent to testify at hearing confirmed her alcohol abuse issues. Her sister, Candace Thomas testified that she had last drunk alcohol with Respondent a month or two prior to the hearing, and recalled having drinks with Respondent at least once a week. Another witness called by Respondent, Jakayla Hudson, testified that Respondent’s drinking habits were about the same as they had been years earlier, before she had been incarcerated. Respondent denied the allegations of alcohol and drug abuse. She claims that Dr. Wilson and Officers Karayianes and L’Esperance fabricated their testimony to exaggerate the extent of her impairment. Respondent claims to have last consumed alcohol on or about August 1, 2016, which is inconsistent with her sister’s testimony at the hearing. She testified that she is not an alcoholic and does not have a problem with alcohol. Respondent’s testimony was inconsistent with her statement that alcohol is her drug of choice, her history of alcohol abuse, her regular attendance at AA meetings since 2007, and her own previous statements. When asked if she still used cocaine, Respondent testified that alcohol is her drug of choice. She testified she had not used cocaine in many years, yet a drug test showed she had ingested cocaine within the past year. When these conflicting statements are viewed with her history of alcohol and cocaine abuse, her regular hosting of AA meetings, regardless of her active participation in them, since 2007, and her own previous statements about the frequency of her drinking and cocaine abuse, the evidence clearly and convincingly strongly supports her being both an alcohol and cocaine abuser. Respondent’s criminal history, combined with the established fact that she has been and continues to suffer from severe alcohol use disorder and severe cocaine use disorder, both of which appear to be voluntary, prove she is unable to practice as a nursing assistant with reasonable skill and safety to patients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent violated sections 464.204(1)(b) and 456.072(1)(z); imposing a suspension of her license until such time as Respondent personally appears before the Board and can demonstrate the present ability to engage in the safe practice of a nursing assistant, and the demonstration shall include at least one IPN evaluation, in which the evaluator finds Respondent is presently able to engage in the safe practice of a nursing assistant or recommend the conditions under which safe practice could be attained; requiring compliance with IPN recommendations and contract conditions, if any; requiring the payment of an administrative fine in the amount of $150; and awarding costs incurred in the prosecution of this case to the Department. DONE AND ENTERED this 18th day of May, 2017, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 18th day of May, 2017. COPIES FURNISHED: Rob F. Summers, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Lannette Thompson, C.N.A. 4718 9th Avenue South St. Petersburg, Florida 33711 Lindsey H. Frost, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-3252 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed) Jody Bryant Newman, EdD, EdS, Chair Board of Nursing Department of Health 4052 Bald Cypress Way, Bin D-02 Tallahassee, Florida 32399
The Issue The primary issues for determination are whether Brother J. Inc., d/b/a A.J.’s Sports (Respondent) violated Section 561.29(1)(a), Florida Statutes; and secondarily, if Respondent committed such a violation, what penalty should be imposed?
Findings Of Fact Petitioner is the agency vested with general regulatory authority over the alcoholic beverage industry within the state, including the administration of the laws and rules relating to the sale of alcoholic beverages. Respondent is subject to the regulatory jurisdiction of Petitioner, having been issued license number 47-02607, Series 4-COP by Petitioner. That license allows Respondent to make sales for consumption on premises of liquor, wine, and beer at his establishment located in Tallahassee, Florida. Events at issue in this proceeding revolve around a fraternity/sorority party held at Respondent’s establishment on the evening of March 30/April 1, 2005. Members of the Phi Kappa Psi fraternity and the Delta Nu Zeta sorority decided that they would host a “construction” theme party. To facilitate the party, the social chairman of Phi Kappa Psi contacted Respondent to make arrangements. Respondent’s establishment has several large areas on its ground floor and a single, 1,800 square foot room on the second floor. Respondent agreed to reserve its upstairs room for the Phi Kappa Psi/Delta Nu Zeta party, to waive its cover charge for party patrons, and to make “dollar wells, dollar beers” (i.e. discounted prices on certain alcoholic beverages) available to party participants for a fee of $300.00. On the night in question, most of the participants met at the Phi Kappa Psi house before going out for the evening. They gathered around 10:00 p.m. and socialized. Some people were getting their “construction” costumes together; others were “pre- partying” –-drinking before going out to minimize the size of the bar bill when they go out later. The majority of the people at the frat house at that time were drinking. At some point around 10:30 or 11:00 p.m., the party moved from the Phi Kappa Psi house to Respondent’s establishment, with party members leaving in groups of three or four to drive from the fraternity house to Respondent’s establishment. It was estimated that 15 or so sorority members and 15 to 30 fraternity brothers attended the party, and that somewhere between a third and a-half of those people were not of legal drinking age. When they arrived at Respondent’s establishment, the sorority and fraternity party makers used a side entrance set up for them by Respondent for use in getting to the party. A doorman was posted at the side entrance that checked the age of each of the patrons. He would place a “Tybex®” wristband on those persons who were over the age of 21 and would mark the hand of those under 21 with an indelible marker. Once inside, party members would go upstairs, where there was a bar with a bartender, a disk jockey, and a dance floor. The party continued on until around 2:00 a.m. on the morning of April 1, 2005, at which time the bar closed and the patrons left. During the course of the evening, 244 alcoholic beverages were served at the upstairs bar at Respondent’s facility. No evidence was presented that established with any degree of accuracy how many fraternity and sorority members actually were at the party and how many were of legal drinking age. The evidence of party attendance provided at hearing varied widely and was in each instance an estimate or a guess. Numerous persons who were not members of Phi Kappa Psi or Delta Nu Zeta were in attendance. There is no accurate estimate of how many legal drinkers were at the party or how many drinks each legal patron may have had. The Underage Drinkers Shane Donnor was observed drinking at the frat house that night. He did not, however, appear to be intoxicated when he left the frat house. He had a wristband indicating that he was over 21, which allowed him to drink at Respondent’s establishment, even though he was not of legal age. It is unknown how he obtained his wristband. Donnor was observed to have a glass in his hand while at Respondent’s establishment, but no one could confirm that he was drinking alcohol. While at Respondent’s establishment, various witnesses described him as appearing under the effects of alcohol and thought he appeared quite intoxicated. By 2:30 a.m. on April 1, Donnor had a blood alcohol level of 0.27. This corresponds to at least 10 drinks and probably more. It is an extremely high level of intoxication, which could result in a coma or even alcohol toxicity in some persons. He was quite drunk and had been so for some time. Stephanie Reed was carded upon entering Respondent’s establishment, as was her boyfriend and all the others in her party. She had one or two drinks, but she didn’t buy them herself. One of the fraternity brothers purchased her drinks for her. Reed testified at one point that she did not receive a wristband when she entered the establishment (signifying legal drinking age); later, she testified that she did due to the intervention of some unknown man who told the doorman to give her a bracelet. Reed’s testimony on this point is inconsistent and cannot be credited. Christopher Lowe was carded as he entered Respondent’s establishment. He received marks on the back of his hand indicating that he was underage. Although he was marked as being underage, Lowe was able to purchase two drinks from the bartender. He ordered the drinks; did nothing to conceal the underage marks on his hand; was served; and left money on the bar. Tania Vasquez was carded upon entering Respondent’s establishment and was marked as being underage. She did not buy any drinks while at the party, but was given an alcoholic beverage by a friend that she consumed while on the premises. Elizabeth McKean, and everyone who entered with her, were carded when they arrived at the party. McKean was marked as being underage. She did not buy any drinks for herself, but was given a shot of tequila by someone else. She drank the shot quickly to avoid detection by Respondent’s staff. David Moser had a roommate who manufactured fake i.d. cards. When he entered Respondent’s establishment, he was carded and presented a false drivers license that made it appear that he was over the age of 21. He was marked as though he was over the legal drinking age and was able to buy and consume drinks at the bar, which he did. Lee Habern had several sips of a friend’s drink that was “snuck” to him. Prevention Of Underage Drinking It is well recognized that underage persons will seek to obtain alcoholic beverages at bars. This action by underage youths results in a “cat and mouse” game whereby the bar will change its tactics in trying to prevent underage drinking and the underage drinkers will change their methods of trying to obtain drinks. Respondent tries to combat underage drinking by creating a culture of compliance. This starts with the initial hiring of employees by Respondent. Respondent’s policy is that no underage drinking will be tolerated. This policy is stated in the Employee’s Handbook. Every employee is given a copy of the handbook upon becoming employed and is required to sign an acknowledgement that he or she received it. The policy is reiterated in informal training at every staff meeting. Every new employee at Respondent’s establishment is required to go through formal training with regard to liquor laws, the effect of alcohol on the human body, dealing with customers who have had too much to drink, and related topics. These courses are known as “PAR”, “TIPS”, and “Safe Staff” and are offered by the Florida Restaurant Association and Anheiser-Busch. Respondent has also offered training provided by agents of Petitioner. These formal training programs are offered continuously to employees, and at least one of the programs is offered three times each year. The initial formal training is accomplished within 30 days of the employee being hired. Records are maintained by Respondent as to who receives what training, and when it is provided. Respondent has a policy that everyone who is served alcohol is to have his or her age checked. When the bar is not busy, this is accomplished by having the waitress check the patron’s I.D. When the bar is busier, a doorman is posted at the entrance to check the patron’s I.D. If the patron is over age 21, he or she is given a wristband; if under age 21, an indelible mark is placed on the back of the hand. Since Respondent has experienced persons copying their “over 21” designation, it is changed on a nightly basis. Fake identification cards, if detected, are confiscated. On busier nights, Respondent might confiscate 20 to 30 of such fake identifications. On the night in question, the doorman confiscated five altered cards. Respondent also has a floor manager on duty at all times that the bar is open. The floor manager will circulate throughout the establishment to make sure that all of the policies and procedures, including the prevention of underage drinking, are being carried out. On the night in question, the floor manager, Bo Crusoe, is documented to have worked and in the nominal course of events would have checked the upstairs area of the premises several times. On busy nights, Respondent will hire one or more off- duty City of Tallahassee police officers to serve as security at the bar. The officers work in their police uniforms. These officers serve first and foremost as high visibility deterrents to unlawful activity. Their mere presence serves to minimize underage drinking. Respondent regularly has off-duty law enforcement on the premises. Respondent also has a security consultant, Officer John Beemon, who is a Tallahassee Police officer. He evaluates the need for additional security and communicates those needs to the owners. When he becomes aware of a new wrinkle in underage persons obtaining alcohol, he works with Respondent to prevent the practice. He assists the doormen in identifying fraudulent I.D.s. Respondent has always implemented whatever recommendations Beemon makes to them. Generally, the security measures used by Respondent have proven effective. From time to time, Petitioner will try a “sting operation” at Respondent’s establishment by sending a minor into Respondent’s bar to see if they are able to purchase alcohol. On every such “sting operation” Petitioner’s decoy was identified and stopped at the front door and was not allowed to purchase alcoholic beverages. Carrie Bruce is Petitioner’s special agent for the Tallahassee area. She is familiar with most Tallahassee alcoholic establishments and her testimony establishes that Respondent’s establishment is not considered a “problem bar” by Petitioner and is considered to be better than other area bars in preventing underage drinking. To the best of the owner’s knowledge and Beemon’s knowledge, no one has ever knowingly served a drink to a minor at Respondent’s establishment. Further, Respondent has never previously been charged with serving alcohol to minors.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
The Issue Whether Respondent, the holder of a license to sell alcoholic beverages, sold an alcoholic beverage to a minor as alleged in the Administrative Action dated June 17, 1997, and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Mahmoud Mohamed, was doing business as Kwik Stop, which is a convenience store located at 1200 Broadway, Riviera Beach, Florida. Respondent holds license number 60-02476, series 2APS, which authorizes him to sell alcoholic beverages at his business location (the licensed premises). On June 13, 1997, the Division initiated a general investigation to determine whether persons under the age of 21 were being sold alcoholic beverages by licensees of the Division. As part of that general investigation, two special agents employed by the Petitioner and an investigative aide employed by the Petitioner made a random stop at the licensed premises between 8:30 p.m. and 9:00 p.m. One of the special investigative agents was Andrew Panzer, an experienced law enforcement officer. The other special agent was Agent Panzer's partner, who did not testify. The investigative aide was Casey Fand, a seventeen-year-old high school student. The special agents instructed Mr. Fand to enter the licensed premises and to attempt to purchase a beer. Mr. Fand entered the premises first, and shortly thereafter, Mr. Panzer entered the store. The other agent remained outside the premises. Mr. Fand went to the cooler, selected a 12-ounce can of Budweiser beer, and walked to the counter where Respondent was working. Mr. Panzer selected a soft drink and followed Mr. Fand to the counter. Mr. Panzer stood behind Mr. Fand and was in position to observe and hear what transpired between Mr. Fand and the Respondent. There is a dispute in the record as to what happened next. Respondent testified that when Mr. Fand came to the counter with the beer, Respondent asked him for identification. Respondent further testified that Mr. Panzer then took the beer from Mr. Fand. Respondent testified that Mr. Panzer paid for the beer and the soft drink. The testimony of Mr. Fand and Mr. Panzer conflicted with Respondent's testimony. Both Mr. Fand and Mr. Panzer testified that Respondent never asked Mr. Fand for identification and that Mr. Fand paid for the beer and left the store. They both testified that Mr. Panzer thereafter paid for the soft drink and left the store. Mr. Panzer testified that after he conferred outside with his partner and Mr. Fand, he re- entered the premises, advised Respondent of the violation, and issued him a notice to appear. In resolving the conflicts in the evidence, it is determined that the clear and convincing testimony of Mr. Fand and Mr. Panzer is more credible than that of the Respondent. In reaching this conclusion, the undersigned has considered the demeanor of the witnesses, the training and experience of Mr. Panzer, and the fact that neither Mr. Panzer nor Mr. Fand has an apparent motive to fabricate evidence. Based on the more credible testimony, it is found that on June 13, 1997, Respondent sold a beer, which is an alcoholic beverage, to a minor, Mr. Fand, without asking for identification. Respondent's license has not been previously disciplined by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that incorporates the findings of fact and conclusions of law contained herein. It is further recommended that the Final Order impose an administrative fine against Respondent in the amount of $1,000 and suspend his license for a period of seven days. DONE AND ENTERED this 5th day of December, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1997. COPIES FURNISHED: James D. Martin, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Mark R. Hanson, Esquire 415 Fifth Street West Palm Beach, Florida 33401 Captain Debbie Beck 400 North Congress Avenue, Suite 150 West Palm Beach, Florida 33401 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for determination is whether the Respondents or their employee sold an alcoholic beverage to a person under the age of 21, on December 22, 1988, in violation of section 562.11(1)(e), Florida Statutes. If a violation occurred, a recommendation regarding discipline must be made. In addition to the substantive issue, Respondents claim that the agency's procedures regarding administrative prosecution for beverage license violations are unconstitutional. This issue is preserved for the record, but is not determined here as this is an essentially judicial function. Carrollwood State Bank v. Lewis, 362 So. 2nd 110, 113-14 (Fla. 1st DCA 1978) cert den mem. 372 So. 2nd 467 (1979)
Findings Of Fact At all times pertinent to the allegation of the Notice to Show Cause, Respondents were doing business at 3200 South Orlando Drive, Sanford, Seminole County, Florida, as Cavalier Motor Inn, under alcoholic beverage license no. 69- 004675. On the afternoon of December 22, 1988, the Buccaneer Lounge at the Cavalier was busy with office Christmas parties. It was dark, crowded and noisy. In response to an earlier complaint, two investigators from the Division of Alcoholic Beverages and Tobacco (DABT) entered the lounge around 5:00 p.m. with an underage operative. That operative, Sherri Russell was born on August 18, 1971, thus was 17 years old in December 1988. She is a friend of the daughter of one of the investigators, David Ramey, and had worked for the agency as a volunteer operative on several prior occasions. Miss Russell entered the lounge with investigators Ramey and Glover a few feet behind her. She found a place in front of the bar, and the female bartender asked what she wanted to drink. She responded a "Bud Light"; the bartender told her how much it cost and got the drink. Miss Russell paid the bartender and took control of the drink from the bartender. At that, Investigator Ramey approached, removed the drink from Miss Russell and identified himself to the bartender. Miss Russell left the lounge with Investigator Glover. According to previous instructions, Miss Russell had no identification with her. She was told to respond truthfully if asked her age or if asked for identification. The money for the drink was provided by the investigators. The entire incident took about five minutes. The only person behind the bar was the female bartender. Co-Respondent, Cesare Polidoro, was standing approximately six to seven feet away from Miss Russell, in an opening in the bar, with a clear view of the transaction. As Investigator Ramey spoke to the bartender, Cesare Polidoro identified himself as the owner and the three moved into another room to talk. The only person working in the lounge on December 22, 1988, was the female bartender, Sylvia Wilson. Another employee was out sick. Cesare Polidoro was there to keep order and to fetch change, if necessary, but he never tends bar and he did not assist on this occasion. Even though the lounge was extremely busy, he did not call to have his partner come help. Although he did not anticipate the one employee would be out sick, Cesare Polidoro did anticipate the crowd on December 22, 1988. There were two parties scheduled in the lounge for around 4:30 or 5:00 p.m. The companies scheduled in advance and alerted the owner that approximately 150 people would be involved. Cesare Polidoro retired and moved to Florida from Elizabeth, New Jersey, where he had worked for twenty-five years as a fire-fighter. He invested his life savings in the business, at the Cavalier, now known as Cesare's Palace. His policy is to avoid selling alcoholic beverages to minors and he instructs his employees in that regard. Both he and his partner continually remind the employees to check identifications. Minors are not good for business as they cause problems and do not have the kind of money to spend ten or fifteen dollars over the counter, according to Cesare Polidoro. The employees are generally conscientious in verifying ages and identification of patrons. Sylvia Wilson, who has criminal charges pending with regard to the alleged sale, refused to testify on matters directly related to the criminal charges. Cesare Polidoro denied that he witnessed the sale and claimed that he had never seen Sherri Russell before the hearing. Investigator Glover, however, observed Polidoro looking directly at Miss Russell during the entire transaction. Polidoro's credibility is discredited by two particularly blatant artifices he employed at the hearing. In response to his attorney's question with regard to educational programs for his employees regarding serving alcoholic beverages to minors, he invoked his experience as a "law enforcement officer" in New Jersey and the many cases he saw involving minor children and drugs. As a firefighter, however, he was not an armed law enforcement officer and had limited arrest powers, not including drug offenses. He also claimed that "a fellow by the name of Mr. York" came up to him on the December 22nd and gratuitously volunteered that the investigator bought the drink and gave it to the young woman. He did not explain how this person, whom he did not know, would be interested in sharing the information or would understand its importance. On the date of the hearing, this ephemeron, just as inexplicably, withdrew his assistance and allegedly told Polidoro he was too busy to come testify. No evidence adduced at hearing established Anthony Milazzo's culpability or implication in the unlawful sale. Cesare Polidoro was culpable. He watched the incident. Moreover he allowed a single employee to become so "swamped" (her term) that it became virtually impossible for her to meaningfully comply with his instructions regarding checking identifications. The DABT policy regarding incidents of sales to minors is to file administrative charges immediately if the licensee was on the premises. Otherwise, the licensee receives a notice after the first violation and criminal charges are filed against the employee or agent who made the sale. For the second violation, the licensee is notified that an investigation is open and criminal charges are filed against the person serving the minor. For the third violation, administrative charges are filed against the licensee and criminal charges are filed against the employee.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that a Final Order be entered finding the licensee guilty of a violation of section 561.29(1)(a), Florida Statutes and section 562.11(1)(a), Florida Statutes, and imposing a civil penalty of $1,000.00. DONE and ENTERED this 23rd day of June, 1989 in Tallahassee, Florida. MARY CLARK 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 23rd day of June, 1989. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties. PETITIONER'S PROPOSED FINDINGS Adopted in Paragraph #1. Adopted in substance in paragraphs #3, 4, and 5. Rejected as cumulative. Adopted in substance in paragraph #3. Rejected as cumulative and unnecessary, except for the observation of Polidoro, which is adopted in paragraph #11. Adopted in substance in paragraphs #2 and 8. Rejected as unnecessary, except for Ms. Smith's nonappearance at work on the 22nd, which is adopted in paragraph #8. Adopted in part in paragraphs #10 and 11, otherwise rejected as unnecessary. Adopted in substance in paragraphs #8, 10, and 12. Rejected as unnecessary. RESPONDENT'S PROPOSED FINDINGS Adopted in paragraph #1. through 4. Adopted in paragraph #3. Adopted in paragraph #2. and 7. Rejected as contrary to the weight of evidence. Adopted in paragraph 8. Rejected as contrary to the evidence relating to the incident in issue. Rejected in part, as the age of Sherri Russell was not checked in the incident at issue. Otherwise adopted in paragraph #8. Adopted in paragraph #4. Rejected as contrary to the weight of evidence. Adopted in paragraph #14. Rejected as unnecessary. and 16. Rejected as cumulative. COPIES FURNISHED: JOHN B. FRETWELL, ESQUIRE ASSISTANT GENERAL COUNSEL DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH STREET TALLAHASSEE, FLORIDA 32399-1007 RICHARD A. COLEGROVE, JR., ESQUIRE 801 ORIENTA AVENUE SUITE 2600 ALTAMONTE SPRINGS, FLORIDA 32701 STEPHEN R. MACNAMARA, SECRETARY DEPARTMENT OF BUSINESS REGULATION THE JOHNS BUILDING 725 S. BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1000 LEONARD IVEY, DIRECTOR DEPARTMENT OF BUSINESS REGULATION DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO 725 S. BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1000 JOSEPH A. SOLE GENERAL COUNSEL DEPARTMENT OF BUSINESS REGULATION 725 S. BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1000
The Issue The issue presented in this case is whether the Petitioner has established by a preponderance of the evidence that Respondent sold alcoholic beverages to a person under the age of 21, in violation of Section 562.11(1)(a), Florida Statutes, as alleged in the Notice To Show Cause issued October 8, 1992.
Findings Of Fact At all times relevant and material to this proceeding, the Respondent, Jin I. Jeon, (licensee), held license number 39-03637, series 2-APS, authorizing him to sell alcoholic beverages on the premises of the Diwan Food Store, located at 7504 N. Florida Avenue, Tampa, Hillsborough County, Florida (premises). On or about September 16, 1992, Special Agent A. Murray, Special Agent K. Hamilton, Investigative Aide D. Snow and Intern M. Dolitsky went to Diwan Food Store to investigate complaints of alcoholic beverage sales to minors. Investigative Aide D. Snow's date of birth is November 11, 1973. She was 18 years of age on September 16, 1992. In accordance with the intructions of the law enforcement officers, Investigative Aide Snow entered the premises and selected a one-quart bottle of Budweiser beer, an alcoholic beverage, from a cooler. The bottle of beer was sealed and clearly marked as an alcoholic beverage. She proceeded to the cash register, where the Respondent was waiting. Snow paid the Respondent, who rang up the sale on the register. The Respondent did not request to see Snow's identification, nor did he ask her whether she was at least 21 years of age. The Respondent's defense was that he was not the person who sold Snow the beer. When he was confronted with the charges, he disclaimed any knowledge of them and blamed an employee, Min Sup Lee, whom he believed must have been the person involved in the sale. He immediately fired Lee because of the charges. Lee testified that he was employed by the Respondent from March 1992 through January, 1993. Lee testified that he worked for Respondent six days a week, primarily at night, and that he was the person in charge of the cash register the majority of the time. He asserted that he probably worked the cash register on the night of the violation. However, he denied ever having seen either Special Agent Murray or Special Agent Hamilton, or Investigative Aide Snow, and he denied any knowledge of the incident. It seems clear that Lee was not the person who sold the beer to the Investigative Aide Snow. Communication problems (the Respondent's English language limitations) may be at the root of the Respondent's inability to understand and to carry out his responsibilities as a vendor under the Beverage Law. Later on the evening of the sale in question, Special Agent Murray returned to the store to talk to the Respondent about the violation but she was not confident that he understood anything she was saying. It is possible that, due to the Respondent's lack of facility with the English language, he did not understand that Murray was charging him with illegal sale of alcoholic beverages to a minor and that, when, some time later, the Respondent came understand the nature of the charge against him, he assumed that his employee must have been responsible. On the other hand, it is possible that the Respondent knows full well his responsibilities under the Beverage Law, and knows full well that he failed to meet those responsibilities on September 16, 1992, but that he knowingly and unfairly tried to use his employee to avoid his own responsibity. In any event, it is found that it was the Respondent, not Lee, who sold the beer to Snow and that, in all likelihood, Lee either was not working on September 16, 1992, or was occupied elsewhere with other responsibilities when Snow and Murray were in the store. The Division's standard penalty for the violation alleged in the Notice to Show Cause is a twenty-day license suspension and a thousand dollar ($1,000.00) civil penalty. This standard penalty has been noticed as proposed Rule 7A-2.022, Penalty Guidelines, pending public workshop and approval.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order: (1) finding the Respondent guilty as charged in the Notice to Show Cause; (2) suspending the Respondent's alcoholic beverage license for twenty days; and (3) ordering the Respondent to pay a $1,000 civil penalty. RECOMMENDED this 27th day of July, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1993. COPIES FURNISHED: Miguel Oxamendi, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32399-1007 Jin I. Jeon 7504 N. Florida Avenue Tampa, Florida 33604 John Harrison, Acting Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Donald D. Conn, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee Florida 32399-1000
The Issue Whether Respondent's alcoholic beverage license should be revoked or otherwise disciplined on grounds that (1) on several occasions, cocaine was possessed, sold, or delivered on the licensed premises by Respondent's employees in violation of state law, and (2) by virtue of such Possession, sale, or delivery of cocaine by its employees, Respondent maintained a public nuisance on the licensed premises.
Findings Of Fact Respondent, Provende, Inc., a general partner in a limited partnership known as Alexandre, Ltd., is responsible for and operates a nightclub under the name of Club Alexandre (the "Club") at 1601 Biscayne Boulevard, Miami, Florida. In connection with its operation of Club Alexandre, Respondent holds beverage license No. 23-3953, Series No. 4-COP-SRX, which permits the sale and consumption of intoxicating beverages on the premises. (Stipulation of Parties, Testimony of Cachaldore.) Club Alexandre, located within the Omni International complex, is a large, multi-faceted club. Its premises consists of two levels totaling approximately 30,000 square feet. The first level includes a restaurant, bar area, three separate dance floors, bathroom facilities, and a stage for entertainment. Buffet lunches are served as early as 11:30 a.m., followed by a cocktail hour in late afternoon, dinner, and live entertainment which continues until 3:00 a.m. The second level is used primarily for private parties, weddings, and business meetings; it is enclosed in glass, and includes banquet rooms, bathroom facilities, storage rooms, and the Club's business offices. Ordinarily, the Club employs from 45 to 50 persons as busboys, bartenders, barmaids, waiters, maitre d's, cooks, dishwashers, office staff, promoters, and buyers. Most of the employees have been hired by Alex Cachaldora--general manager of the Club, stockholder, and president of Respondent. He either hires or approves the hiring of all Club employees and is the individual responsible for managing the Club on a daily basis. (Testimony of Cachaldora.) Club Alexandre is a semi-private club. Upon application, acceptance, and payment of a fee, persons may become members; public customers may also use the Club after screening at the entrance and payment of a cover charge. (Testimony of Cachaldora.) I. As to Count I On November 23, 1980, at approximately 12:10 a.m., D.C. Diaz--an off- duty officer of the Miami Police Department--paid a cover charge and entered the Club Alexandre. He sat at the bar counter, ordered a drink from a young barmaid dressed in a black uniform, and asked her if she could give him some "white magic", a street term referring to cocaine. She asked how much he wanted, he said "one gram"; she then informed him that the price would be $65. (Testimony of Diaz.) Diaz then gave the barmaid a $100 bill; she went to the cash register and returned with $35 in change which he gave to Diaz. She told him, "It will take between five and ten minutes." (Tr. 22-I-22.) Five to ten minutes later, a waiter--dressed in a black tuxedo-type shirt--approached from the restaurant area and gave the barmaid a folded napkin which she, in turn, gave to Diaz. He opened the napkin and found a small tinfoil packet inside containing a white powder which he suspected to be cocaine. (Testimony of Diaz.) Subsequent laboratory tests by the Metropolitan Dade County Public Safety Department confirmed that the white powder obtained by Diaz from the barmaid on November 23, 1980, was cocaine. II. As to Count 2 On January 23, 1981, at approximately 10:30 p.m., Beverage Officers Carmen Gonzalez and Joe Mato, together with Art Serig of the Miami Police Department, entered the Club Alexandre for the purpose of conducting an undercover narcotics investigation. They proceeded to the second floor area, sat at a table, and ordered drinks. (Testimony of Mato.) At approximately 12:25 am. (January 24, 1981), Officer Mato proceeded to the downstairs bar where a barmaid identified as Enid Epstein was tending bar. After ordering a drink, he asked her if she knew where he could obtain some "white magic"; she answered, "Yes, if he is still here it would be $65."(Tr. 22-I-53.) He agreed to the price and handed her $70. She took the money and proceeded to the kitchen area located in the rear of the premises. A few minutes later, he observed her running across the upstairs lounge area to the bar. After a brief delay, she proceeded toward the downstairs bathroom area. She then returned to Officer Mate, handed him a $5 bill folded into a small package, and explained, "This is the change that I owed you." (Tr. 22-I- 54.) He opened the folded $5 bill and found a small tinfoil packet containing a white powder which he suspected to be cocaine. (Testimony of Mato.) Subsequent Dade Public Safety Department laboratory tests confirmed that the white powder obtained by Officer Mato from Enid Epstein was cocaine. (P-2.) III. As to Count 3 On January 24, 1981, at approximately 9:20 p.m., undercover Beverage Officers Lou Clark end Lou Terminello entered the Club Alexandre for the purpose of continuing the Division's narcotic investigation. They seated themselves at the downstairs bar area end ordered drinks from a male bartender who introduced himself as "Bill", later identified as William Mendel. Officer Clark told "Bill" that they had picked up a couple of girls and asked if there was anything to help with the party. A conversation ensued about there being a lot of "snow" in Kansas--Clark using the term's ordinary meaning--and "Bill" answering, "That is not the kind of snow I was referring to." (Tr. 22-I-132.) In response to Clark's question about obtaining something that might help with their party, "Bill" indicated his contact wasn't there at that time, but that "they should be in later." (Tr. 22-I-133.) Officers Clark and Terminello then left the premises. (Testimony of Clark, Terminello.) About an hour later, the two beverage officers returned to the premises, and seated themselves at the downstairs bar. They ordered a drink from "Bill" and asked if his contact had arrived. He went over and talked to a young red-haired female barmaid--later identified as Enid Epstein-and returned to the officers; he then wrote "75" on a white bar napkin and placed it on the counter in front of them. Terminello said, "That is fine, we'll take two" (Tr. 22-I-136) and laid $80 on the table. Clark laid dawn a $100 bill. "Bill" took the $100, and $56 from Terminello's $80, leaving $24 in change. 4/ "Bill" then rang up a $6 sale an the register and placed the rest of the money in the right vest pocket of Enid Epstein. She then left the bar and proceeded into the kitchen area. A few minutes later she returned--via the staircase leading from the second floor--folded an unidentified object into a napkin, and handed it to Bill. He, in turn, handed the napkin to Terminello. After finding two small tinfoil packets in the napkin, the officers departed the premises. (Testimony of Terminello, Clark.) The two small packets contained a white powder. Subsequent Public Safety Department laboratory tests identified the white powder contained in one of the packets as cocaine. 5/ IV. As to Count 4 After his initial drug transaction with barmaid Enid Epstein during the early morning hours of January 24, 1981, (Paragraph 7 through 9, Count 2, above) Officer Mato returned to the Club Alexandre with Beverage Officer Emil Marrero. They arrived shortly before midnight on January 24, 1981, and seated themselves on opposite ends of the downstairs bar. After ordering drinks, Officer Mato called over barmaid Enid Epstein--who was tending bar--placed $70 on the bar and told her he would like to purchase some "white magic", another street name referring to cocaine. She took the money and proceeded to the kitchen area, then returned and handed Mato a folded $5 bill containing a small tinfoil packet. A few minutes later, the beverage officers departed the premises. (Testimony of Mato, Merrero.) The small tinfoil packet contained white powder which subsequent Public Safety Department laboratory tests identified as cocaine. (P-2.) V As to Count 5 At 11:00 p.m., on January 27, 1981, Beverage Officers Marrero and Delmonte entered the Club Alexandre and seated themselves at the downstairs bar. They ordered drinks from barmaid Enid Epstein. Shortly after midnight Merrero folded $70 in a small packet and placed it on the bar; he then asked Epstein if he could buy some "white magic", meaning cocaine. Taking the money, she went to the kitchen area and returned, placing a folded $5 bill in front of Marrero. Inside the folded bill was a small tinfoil packet. The officers then left the premises. (Testimony of Marrero, Delmonte.) Subsequent Public Safety Department laboratory analysis identified the contents of the tinfoil packet as cocaine. (P-3.) VI. As to Count 6 On January 28, 1981, at 12:45 a.m., Officers Clark and Terminello returned to the Club Alexandre in furtherance of their narcotics investigation. Seated at the lower level bar, they ordered drinks from Enid Epstein, the barmaid. Shortly thereafter, Terminello called her over end asked her if there was any chance of their getting some more "toot", another slang ward for cocaine. She replied that she would have to check to "see if any of my people are here." (Tr. 22-I-104.) She then left the bar, walked to the rear kitchen area and returned several minutes later saying, "Yeah, no problem. There is somebody here." Id. Each officer then placed $75 on the bar; she retrieved the money, left for the kitchen area and returned with a folded napkin which contained two small tinfoil packets. (Testimony of Clark, Terminello.) Subsequent Public Safety Department laboratory analysis identified the contents of one of the packets as cocaine. 6/ (P-5.) VII. As to Count 7 On January 29, 1981, at approximately 11:40 p.m. beverage officers, assisted by officers of the Miami Police Department, executed a search warrant on the premises of the Club Alexandre. During the search, Beverage Officer Joseph Maggio found a brown leather purse on a shelf in a locked storage room on the second floor. The outside pocket of the purse contained ten small tinfoil packets containing a white powder suspected to be cocaine. A further search of the purse revealed small baggies and six additional tinfoil packets--all containing suspected cocaine. (Testimony of Maggio, McEwan.) The purse also contained a checkbook and a Florida driver's license issued in the name of Luis A. Vargas. Vargas, the head chef for Club Alexandre, was subsequently located downstairs. After being advised of his rights, Vargas identified the purse as his own. Of the numerous packets of white powder found within the purse, only one was subjected to Public Safety Department laboratory analysis; the contents of that packet were identified as cocaine. (P-7.) VIII. Licensee's Duty to Exercise Reasonable Care end Diligence Before a beverage license can be suspended or revoked for a violation of law on the licensee's premises, the licensee must be found culpably responsible for the violation through his own negligence, intentional wrongdoing, or lack of diligence. 7/ In the instant case, no intentional wrongdoing by Respondent has been alleged or proved. Rather, the Division contends that the violations of state narcotics laws described above resulted from Respondent's failure to exercise reasonable skill and diligence in managing and supervising its operations. Respondent does not dispute that on seven occasions, as alleged, violations of state narcotics laws occurred on the premises; however, it denys negligence or lack of diligence. It affirmatively contends that it took every reasonable precaution to guard against the illegal sale or use of narcotics on the licensed premises. (Testimony of Cachaldora, Petitioner's Proposed Recommended Order, Respondent's Suggested Findings of Fact.) Respondent's contention is unavailing; the evidence establishes that Respondent failed to take reasonable precautions to guard against violations of narcotics laws on its premises--that Respondent failed to exercise reasonable care end diligence in managing its operations and supervising its employees. The following facts justify this conclusion: The alleged violations of narcotics laws occurred on the premises in a recurring, persistent, and practiced manner. They occurred at least seven times--over a 2 1/2- month period--and involved at least three separate employees of the Respondent. Despite the licensee's knowledge or suspicion, through its operators and managers, that violations of state narcotics laws occasionally occurred on it premises, the licensee never expressly enunciated--either to its employees or patrons--a policy forbidding the possession, sale, or use of narcotics. Employees were not admonished against involving themselves in such violations; neither were penalties for such violations announced in advance. Neither was information concerning possible narcotics law violations or convictions elicited from prospective employees. Given the nature and size of the Club, the number of its employees end patrons, and management's knowledge, or suspicion, that narcotics violations had occurred on the premises--the licensee took inadequate steps to (1) monitor activities on the premises, and (2) detect narcotics violations and prevent their occurrence. It employed off-duty Omni security guards only during times when business activity was greatest. At all other times, it relied on its employees for surveillance and security. The place where narcotics violations were most likely to occur--the bathroom facilities on two floors--were monitored by a single valet with minimal security training and who could neither speak nor understand English. The security efforts by the licensee were directed more to controlling disturbing or offensive behavior by patrons than pretending violations of law from occurring on the premises, or taking forceful action when such violations were detected. The quality of the licensee's surveillance program is illustrated by an experiment conducted by Beverage Officer Delmonte. On January 14, 1981--while at the Club with Beverage Officer Marrero--he observed several persons in the men's bathroom with running eyes and noses. During that same visit, Officer Marrero observed several waiters and a patron in the bathroom "sniffing something through their nostrils." (Tr. 22-I-78.) The Respondent's valet was also present in the bathroom at the time. On Officer Delmonte's next visit to the Club--January 27, 1981--he decided to conduct an experiment because of the suspicious activities observed on January 14, 1981. He went to the bathroom with a dollar bill rolled into a small tube; he placed it to his nostril and pretended to inhale something. The valet came in, observed this behavior, and acted surprised. Delmonte then acted embarrassed, smiled, and placed the dollar back in his pocket. After the valet handed him a kleenex, Delmonte exited the bathroom with the valet following him. At the foyer, the valet spoke with an older lady wearing a dark dress; the lady then engaged in a casual conversation with Delmonte and Enid Epstein--who was tending bar. Nothing further occurred in response to Officer Delmonte's experiment. (Testimony of Delmonte, Mendel, McEwen, Maggie, Mato, Clerk, Terminello, Marrero, Guerre, Robertson, Cachaldora, Puig; R-3, R-7.) Respondent's suggested findings of fact are adopted to the extent they establish: (1) Between November 23, 1980, and January 28, 1981, law enforcement officers made numerous undercover visits to the Club when they did not, or were unable to purchase illicit narcotics on the premises; (2) During undercover visits during the period in question--except for the January 14, 1881, incident in the men's bathroom end the incidents alleged in Counts 1 through 7--the officers did not observe anyone using or selling illicit narcotics or marijuana. Moreover, two off-duty police officers who sometimes socially visited the Club-- and were encouraged to do so by Respondent--did not observe any narcotics violations taking place; (3) Each sale of cocaine, as alleged, was preceded by a law enforcement officer's solicitation to purchase; and (4) Unless observed in the act, it is difficult to ascertain--with certainty--whether a person uses, sells, or is inclined to use or sell narcotics. (Testimony of Stillman, Diaz, Sokolowski, Delmonte, Mandel, McEwen, Maggie, Mato, Clark, Terminello, Marrero, Guerra, Robertson.) IX. Appropriate Disciplinary Penalty No aggravating evidence was offered by the Division to justify permanent license revocation; no intentional wrongdoing by Respondent, or its manager, has been shown. Respondent has no record of prior infractions of the Beverage Law. There is no evidence which indicates that Respondent's operator, Alex Cachaldora, was aware that several of his employees were involved with illicit narcotics. In light of the facts of this case, permanent revocation of Respondent's beverage license is unwarranted; rather, a 90-day suspension is appropriate, less any days during which Respondent's beverage license has been effectively suspended by emergency order of the Division. (Testimony of Cachaldora.) Both parties have submitted proposed findings of fact for consideration in this proceeding. To the extent such findings have not been adopted or incorporated in this Recommended Order, they are rejected as irrelevant or unnecessary to resolution of the issues presented or unsupported by the evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, It is RECOMMENDED: That the Division enter a final order suspending Respondent's beverage license No. 23-3953, Series No. 4-COP-SRX, for 90 days; provided, however, to the extent Respondent's license may have been effectively suspended by prior emergency order of the Division, the period of such emergency suspension should be subtracted from the 90-day period. DONE AND RECOMMENDED this 10th day of June, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. 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 10th day of June, 1981.
