01-003132 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco, vs. Manos, Inc., D/B/A Sea Port, A/K/A Lighthouse Status: Closed Recommended Order on Monday, May 20, 2002.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3132

)

MANOS, INC., d/b/a SEA PORT, )

a/k/a LIGHTHOUSE, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing in the above - styled case was held before

Daniel M. Kilbride, Administrative Law Judge, Division of

Administrative Hearing, on January 17 and 18, 20 02, in Viera,

Florida.

APPEARANCES

For Petitioner: Michael Martinez, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Ta llahassee, Florida 32399 - 2202

For Respondent: Richard J. Dempsey

Qualified Representative

223 Columbia Drive, No. 221

Cape Canaveral, Florida 32920

STATEMENT OF THE ISSUES

Whether disci plinary action should be taken against

Respondent's license no. 15 - 02311, 4COP, based on the violations

of Sections 893.13, 561.29, and 823.13, Florida Statutes, as

charged in the Second Amended Notice to Show Cause filed against

Respondent in this proceed ing.

PRELIMINARY STATEMENT

On August 10, 2001, Petitioner issued a Notice to Show

Cause and an Emergency Order of Suspension which was personally

served on Respondent's agent. Respondent was advised of its

right to an Immediate Post - Suspension Hearing, sc heduled for

August 16, 2001. Respondent filed a request for an immediate

hearing with the Division of Administrative Hearings on

August 12, 2001. Said request for immediate hearing was waived

on August 13, 2001, and Respondent requested a regularly

sche duled formal hearing. This matter was set for hearing and

discovery ensued. Following the denial of various motions to

dismiss and other motions and a pre - hearing conference, this

matter was continued twice.

The formal hearing was conducted on January 17 and 18,

2002. At the hearing, Petitioner called 12 witnesses and

offered 15 exhibits, which were admitted in evidence.

Respondent offered the testimony of one witness and recalled two

witnesses, who had testified previously, and placed four

documents in evidence. Both parties requested 30 days from the

filing of the transcript for post - hearing submittals, which

request was granted.

The Transcript was filed on March 20, 2002. Petitioner

filed its Proposed Recommended Order on April 19, 2002.

Responde nt filed its proposals on April 17, 2002. Both

proposals have been given careful consideration in preparation

of this Recommended Order.

In addition, Respondent filed a Post - Hearing Motion to

Quash Second Amended Notice to Show Cause and a post - hearing

mo tion to dismiss. After careful consideration, both motions

are denied.

FINDINGS OF FACT

1. Petitioner is the State of Florida, Department of

Business and Professional Regulation, Division of Alcoholic

Beverages and Tobacco (DABT).

2. Respondent is Manos , Inc., d/b/a Sea Port Restaurant

and Lighthouse Lounge.

3. Respondent holds Beverage License No. 15 - 02311, 4COP,

and is located at 680 George King Boulevard, Cape Canaveral,

Florida 32920.

4. Raymond J. Cascella is the president, vice - president

and secr etary of Respondent. Cascella indicated that his wife,

Eileen Cascella, was the manager of Respondent's restaurant and

lounge during the period of June through August 2001. A

customer going by the name of "Red" had been at the

establishment three or four times a week for a couple of years.

Mahatha Brownlee is the individual who goes by the nickname

"Red" and frequents Respondent's establishment. An individual

going by the name of "Diamond" had been at the establishment

frequently over a period of six mo nths.

5. Ronald Carlson, caretaker of the premises during the

relevant time - period of June through August 2001, became aware

that drug usage was occurring on the licensed premises when two

bartenders of Respondent complained to him. Carlson also

observed that whenever uniformed officers came into the

establishment, many of the customers would get up and leave.

6. Deputy Thomas D. Rodgers made two arrests on drug

warrants inside the licensed premises during 2001, both of whom

were employees of Respondent.

7. On July 31, 2001, Special Agent Bethany Driggers, DABT,

while in the licensed premises overheard a conversation whereby

a customer asked a bartender about the availability of crack

cocaine at the licensed premises.

8. Stephanie Farrington, a bartende r employed by

Respondent, gave a statement to law enforcement under oath,

which Special Agent Richard Waters, DABT, signed as a witness.

The sworn statement of Stephanie Farrington was introduced as a

business record exception. Respondent's qualified

rep resentative waived any objection to its introduction.

Sometime in July 2002, Farrington confronted Cascella about the

drug abuse in his business and the obvious drug dealing going on

in the establishment. Cascella told her to go speak to the

suspect know n as "Red" to let "Red" handle it. Farrington had

spoken with the manager, Eileen Cascella, as well, who indicated

that she was aware that drug dealing was going on in the

premises.

9. Richard Hurlburt is a Special Agent with DABT. He is

an 18 - year vete ran agent and has prior law enforcement

experience. Agent Hurlburt was found, without objection, to be

an expert in conducting undercover operations. Agent Hurlburt,

based on his training and experience, believed that there was

rampant drug dealing going on at the licensed premises, during

the months of June through August 2001.

10. Agent Hurlburt began his investigation during the

daytime hours in June 2001, so that he could have more of a one -

on - one contact with the employees. As a result of the

viola tions he observed occurring during the day, Agent Hurlburt

was able to conduct the investigation during the day and avoid

the violence that frequently occurred at the premises in the

later hours. Agent Hurlburt indicated that a suspect's exchange

of a wad of money with an employee and receiving a large bill in

return is consistent with the actions of drug dealers.

11. In June 2001, Agent Hurlburt observed suspect "Red"

exchange a wad of money with Cascella and receive a large bill

in return.

12. On June 27, 2001, Agent Hurlburt was served a beer by

suspect "Red" while on the subject premises.

13. On June 27, 2001, Agent Hurlburt purchased drugs twice

from suspect "Big Mama," a person not further identified.

14. Agent Hurlburt turned both samples of susp ected crack

cocaine over to Special Agent Roy Dotson, DABT.

15. Agent Dotson is a ten - year law enforcement veteran

with over 1,500 hours of specialized training. Agent Dotson has

field - tested suspected crack cocaine over 500 times and has

never had a fie ld test result invalidated by later testing.

16. Agent Dotson field - tested the suspected crack cocaine

turned over to him by Agent Hurlburt on June 27, 2001, and the

results were positive for the presence of cocaine.

17. Special Agent Gregory Aliberti, D ABT, secured the

suspected crack cocaine purchased by Agent Hurlburt on July 11,

2001.

18. Kim Poon, employed by the Florida Department of Law

Enforcement (FDLE) as a crime laboratory analyst, was

recognized, without objection as an expert drug analyst. Poon

used two separate instrument tests, the mass spectrometer, as

well as a gas chromatograph. Poon indicated that when the

instruments are used correctly and in conjunction, the

instruments are foolproof, there is no room for error.

19. None of the dru gs in this case that were in Poon's

possession were tampered with to his knowledge. The three

exhibits were tested and came back positive for cocaine, using

the aforementioned two tests.

20. The drugs purchased by Agent Hurlburt on June 27,

2001, were te sted and the results came back positive for

cocaine.

21. On June 29, 2001, Agent Hurlburt purchased $20 of

crack cocaine from suspect "Big Mama" and turned these drugs

over to Agent Aliberti. These drugs were subsequently tested

positive for cocaine.

22. On or about July 2001, Agent Hurlburt, DABT, while in

the licensed premises overheard a conversation between a

bartender, Elaine, and another bartender, Jason, in which they

indicated that Farrington had come into the establishment and

named the names of people who were dealing drugs. They went on

to say that Farrington named specific individuals "Moo - Moo,"

"Red" and "Diamond" as drug dealers. Farrington stated that

there is a black male known as "Red" who hangs - out in the bar

five out of seven days a w eek and she believed he was selling

crack cocaine.

23. Suspect Ray Charles was observed exiting the kitchen

on numerous occasions. Agent Hurlburt asked suspect Ray Charles

if he was an employee and he indicated that he cleaned up or did

whatever Ray want ed him to do on the premises.

24. On July 10, 2001, the agent made three separate drug

purchases from suspect Ray Charles. The suspected crack cocaine

was turned over to Agent Dotson who subsequently conducted a

field test. It rendered a positive resu lt for the presence of

cocaine. The three separate samples of suspected crack cocaine

purchased from suspect Ray Charles by Agent Hurlburt were

subsequently tested positive for cocaine.

25. Agent Hurlburt established that after meeting with

support perso nnel the packages in which the suspect crack

cocaine was stored in were marked with the date of the purchase,

Agent Hurlburt's initials, which purchase it was for that day,

and the suspect's name.

26. On July 11, 2001, Agent Hurlburt purchased a $100

piec e of crack cocaine from suspect Ray Charles. Ray Charles is

the same individual as Ray Charles Mitchell, who is a felon on

probation for possession of cocaine at the time of the formal

hearing in this matter.

27. Agent Hurlburt made a second purchase fro m Ray Charles

on July 11, 2001. The suspected crack cocaine purchased from

suspect Ray Charles on July 11 by Agent Hurlburt was

subsequently tested positive by Poon of the FDLE.

28. Agent Hurlburt also purchased crack cocaine on July 11

from the suspect known as "Red." The suspected crack cocaine

purchased from suspect "Red" by Agent Hurlburt subsequently

tested positive after analysis by Poon.

29. On July 13, 2001, Agent Hurlburt purchased a $20 piece

of crack cocaine from suspect "Red." On July 13, 2 001, Agent

Hurlburt made a second purchase of suspected crack cocaine from

"Red." The suspected crack cocaine subsequently tested positive

for cocaine.

30. On July 17, 2001, Agent Hurlburt made two purchases of

suspected crack cocaine from suspect "Red" and both subsequently

tested positive for presence of cocaine.

31. On July 20, 2001, Agent Hurlburt returned to the

premises and purchased suspected crack cocaine from suspect

"Red." Poon tested the crack cocaine purchased from "Red" on

July 20 and it te sted positive for cocaine.

32. On July 24, Agent Hurlburt purchased suspected crack

cocaine from suspect "Red" on two occasions and turned over the

drugs to support personnel. The drugs purchased by Agent

Hurlburt on July 24, 2001, subsequently tested po sitive for the

presence of cocaine. Agent Dotson field - tested the drugs

purchased from suspect "Red" on July 24 with a positive result

for cocaine.

33. During some of the drug purchases from suspect "Red"

on July 24, 2001, Cascella was in the bar area.

3 4. On July 25, Agent Hurlburt purchased suspected crack

cocaine from a suspect known only as Rudy and turned the

substances over to Agent Dotson, who subsequently field - tested

it with a positive result. The drugs purchased by Agent

Hurlburt on July 25, 2 001, were subsequently tested positive for

the presence of cocaine. Cascella was in the bar area on July

25, 2001.

35. On July 27, 2001, Agent Hurlburt purchased two pieces

of suspected crack cocaine. The drugs purchased by Agent

Hurlburt were subsequen tly tested by Poon with the FDLE and

tested positive for cocaine.

36. On July 31, 2001, Agent Hurlburt overheard a

conversation between two suspected narcotic dealers talking

about a sale of crack cocaine to an individual bartender named

Jason.

37. On Ju ly 31, 2001, Agent Hurlburt purchased suspected

crack cocaine from an individual on the licensed premises. The

drugs purchased subsequently tested positive for the presence of

cocaine. Agent Scott Behringer of the Brevard County Sheriff's

Office (BCSO), Special Investigation Unit, secured the suspected

crack cocaine purchased by Agent Hurlburt on July 31, 2001.

Agent Behringer has been employed by the BCSO for approximately

13 years. He has been involved in several hundred

investigations and has special ized training in narcotic

identification schools including DEA basic and DEA advanced.

Agent Behringer observed drug transactions occurring at the

licensed premises. Agent Behringer subsequently tested the

narcotics purchased by Agent Hurlburt on July 31 , 2002, and the

field test results were positive. Agent Behringer never had an

occasion where he had field - tested a substance and was later

disproved by drug analysis. This is despite having conducted

approximately 1,000 field tests.

38. On August 2, 20 01, Agent Hurlburt and Agent Driggers

were sitting at the bar at the licensed premises when they

observed suspect "Red" sitting in a booth in the premises as

well. Visible from the bar, placed on the suspect's calf was a

stack of crack cocaine. Agent Hur lburt proceeded to measure the

distance from the bar to a spot parallel to the suspect in order

to determine the distance. The distance was estimated to be 155

inches.

39. On August 2, 2001, Agent Hurlburt purchased $100 worth

of crack cocaine from suspe ct "Red." On August 3, Agent

Hurlburt purchased $50 worth of crack cocaine from suspect Rudy.

The contraband was turned over to support personnel.

40. Agent Behringer secured evidence on August 2, 2001; he

field - tested the substance and it was positive for cocaine. It

had the appearance of crack cocaine as well. All the evidence

that Agent Behringer maintained was kept in a security area

until being forwarded to Agent Dotson. Agent Behringer never

had drugs in his possession that had been tampered wit h in any

way.

41. Agent Behringer saw Cascella observing drug sales

during the relevant time - period late July and early August 2001.

42. Agent Driggers indicated that even though she didn't

have a great deal of training, she was able to observe numerous

individuals making hand drug transactions in the licensed

premises.

43. The crack cocaine purchased on August 2 by Agent

Hurlburt from suspect "Red" was tested by Poon and the result

was positive for the presence of cocaine.

44. Agent Driggers purchased suspected crack cocaine from

suspect "Red" on August 8. The suspected crack cocaine

purchased by Agent Driggers on July 31 and August 8, 2001, from

suspect "Red" subsequently tested positive for cocaine.

45. On August 10, 2001, Agent Hurlburt entered the

establishment, made a purchase and departed the premises. He

then went to the staging area where they were subsequently

transported and tested by Kimberly Hampton - Sheley of the FDLE

crime lab with a positive result for cocaine.

46. FDLE Analyst Kimberly Hampton - Sheley indicated that

the two tests that she ran on the substance resulted in a

positive reading for cocaine. Further, the accuracy of combined

testing in terms of chemistry is 100 percent accurate.

47. Agent Driggers purchased $20 worth of susp ected crack

cocaine from an employee of the licensed premises, Jason,

August 10, 2001. The drugs subsequently tested positive for the

presence of cocaine.

48. Shortly thereafter, Agents from the combined task

force from the DABT and BCSO reentered the l icensed premises in

order to arrest those engaging in illegal activity. Agent

Dotson searched bartender, Jason Gilroy, on August 10, 2001, at

the time of the raid on the licensed premises. Agent Dotson

discovered a small napkin with some cocaine in one o f his pants'

pockets. The drugs discovered on employee Gilroy on August 10,

2001, subsequently tested positive for the presence of cocaine.

49. Another Manos employee, a bartender named Mike, was

apprehended with a crack pipe in his manual possession on the

night of the raid.

50. Evidence Agents Aliberti and Waters, DABT, secured in

this investigation was stored in the trunk of their state

vehicle or at the Florida Highway Patrol unit where they have an

evidence storage locker until it is forwarded to th e BCSO or

whatever agency is going to be responsible for the evidence.

Agent Waters indicated that at the location of the Florida

Highway Patrol is a locker which has their own personal key and

they are the only ones with that key. Both Waters and Aliber ti

indicated that they have never had any evidence that was in

their possession tampered with in this case or any other to

their knowledge.

51. Agent Aliberti was involved in transporting drugs from

the BCSO to the FDLE. Agent Dotson testified that he se cured

the evidence in an evidence bag. He would initial them and they

would be put into an evidence locker in one of their precincts

to be forwarded to the Evidence Unit. Agent Dotson has never

had any drugs tampered with in any of his cases, including t he

case at hand.

52. The evidence is clear and convincing that on numerous

occasions between June and August 2001, on the licensed

premises, agents and employees, while in the scope of their

employment, sold or permitted to be sold controlled substances,

to wit: cocaine, in violation of Florida law.

53. The evidence is clear and convincing that on numerous

occasions between June and August 2001, the licensee, Raymond J.

Cascella, permitted others, while on the licensed premises, to

violate the laws of th is state and of this United States by

selling controlled substances, to wit: cocaine.

54. The evidence is clear and convincing that the licensed

premises was used for the illegal keeping, selling and delivery

of controlled substances and is a public nuis ance.

55. The evidence is clear and convincing that the

licensee, Raymond J. Cascella, maintained the licensed premises

for the illegal keeping, selling and delivery of controlled

substances.

CONCLUSIONS OF LAW

56. The Division of Administrative Hearings had

jurisdiction over the parties and subject matter of this

proceeding, pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

57. Petitioner, the Department of Business and

Professional Regulation, is the state agency charged with

regulating the activities of licensees under the Beverage Law

pursuant to Section 561.02, Florida Statutes.

58. Pursuant to Section 561.29, Florida Statutes, the

Division of Alcoholic Beverages and tobacco is empowered to

revoke, suspend or otherwise discipline the lic ense of a

licensee who is found guilty of any of the grounds enumerated in

Section 561.29, Florida Statutes.

59. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent. Section

120.57(1)(h), Florida Statu tes (2001); Department of Banking and

Finance v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996);

and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

60. Section 561.29(1), Florida Statutes, provides that a

violation by the licensee or his or her agen ts, officers,

servants or employees on the licensed premises or elsewhere in

the scope of employment of any of the laws of this state or the

United States . . . or permitting another on the licensed

premises to violate any of the laws of this state or the United

States is punishable by the Division of Alcoholic Beverages and

Tobacco, Department of Business and Professional Regulation.

61. Section 893.13(1)(a), Florida Statutes, provides that

it is unlawful to possess, sell or deliver a controlled

substance as defined in Section 893.03, Florida Statutes.

62. Petitioner has proven by clear and convincing evidence

that Respondent's agents, servants or employees sold a

controlled substance on the licensed premises on numerous

occasions during the Summer of 200 1, and that Respondent

permitted patrons to make at least 23 sales of controlled

substances, to wit: cocaine, in violation of Section 893.13,

within Section 561.29(1), Florida Statutes.

63. Section 893.13(7)(a)5, within Section 561.29(1)(c),

Florida Stat utes, prohibits the keeping or maintaining of any

store, shop, warehouse, dwelling, building, vehicle, boat,

aircraft or other structure or place which is resorted to by

persons using controlled substances in violation of this Chapter

for the purpose of us ing the substances or which is used for

keeping or selling them in violation of this Chapter.

64. Petitioner has proven by clear and convincing evidence

that Respondent has violated Section 893.13(7)(a)5, within

Section 561.29(1)(c), Florida Statutes, by maintaining a

building which was used for the keeping and/or selling of

controlled substances.

65. Section 823.10, within Section 561.29(1)(a) - (c),

Florida Statutes, states that any building which is used for the

illegal keeping, selling or delivering con trolled substances

under Chapter 893, shall be deemed a public nuisance and no

persons shall keep or maintain such public nuisance or aid and

abet another in keeping or maintaining such public nuisance.

66. Petitioner has proven by clear and convincing ev idence

that Respondent violated Sections 823.10 and 561.29, Florida

Statutes, by maintaining and/or abetting the maintenance of a

licensed establishment which is used for the illegal keeping,

selling or delivering controlled substances defined under

Chapte r 893, Florida Statutes.

67. Rule 61A - 2.022, Florida Administrative Code, provides

in pertinent part, the following:

a. The first occurrence of a violation of

Florida Statute 893 calls for a revocation

of the License.

b. The first occurrence of a v iolation of

any noncriminal violation not specifically

mentioned in the Penalty Guidelines calls

for a two hundred fifty dollar fine.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be re ndered as

follows:

1. Finding Respondent guilty of having violated Section

893.13(1)(a), Florida Statutes, as alleged in Counts 1 - 18 of the

Second Amended Administrative Complaint, and imposing a penalty

therefor of Revocation of Respondent's license numb er 15 - 02311,

4 - COP, SRX.

2. Finding Respondent guilty of having violated Section

893.13(7)(a)5, Florida Statutes, as alleged in Count 19 of the

Second Amended Administrative Complaint, and imposing as a

penalty therefor of Revocation of Respondent's licen se number

15 - 02311, 4 - COP, SRX.

3. Finding Respondent guilty of having violated Section

823.10, Florida Statutes, as alleged in Count 20 of the Second

Amended Administrative Complaint, and imposing as a penalty

therefor of an administrative fine in the am ount of $250.

DONE AND ENTERED this 20th day of May, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of May, 2002.

COPIES FURNISHED :

Raymond Cascella

Manos Inc., d/b/a Sea Port Restaurant

680 George J. King Boulevard

Port Canaveral, Florida 32920

Richard J. Dempsey

Qualified Representative

223 Columbia Drive, No. 221

Cape Canaveral, Florida 32920

Michael Martinez, Esquire

Department of Business and

Professio nal Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399 - 2202

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Richard Turner, Director

Division of Alcoholic Beverages and Tobacco

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have t he right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.