91-007901 Division Of Alcoholic Beverages And Tobacco vs. 3673 Bird, Inc., T/A Uncle Charlies Status: Closed Recommended Order on Tuesday, December 24, 1991.

Summary: Flagrant, persistent, repeated violations of drug laws on licensed premises warrants revocation of alcoholic beverage license and fine of $18,000.00.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7901

)

3673 BIRD, INC., d/b/a UNCLE )

CHARLIE'S, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on December

11, 1991, at Miami, Florida, before Michael M. Parrish, a duly designated

Hearing Officer of the Division of Administrative Hearings. Appearances for the

parties were as follows:

APPEARANCES

For Petitioner: Nancy C. Waller, Esquire

Department of Business Regulation

The Johns Building

725 South Bronough Street

Tallahassee, Florida 32399-1007

For Respondent: Louis J. Terminello, Esquire

950 South Miami Avenue

Miami, Florida 33130

and

Sy Chadroff, Esquire

2700 S.W. 37th Avenue

Miami, Florida 33133

STATEMENT OF THE ISSUES

This is a license discipline case in which the Division of Alcoholic

Beverages and Tobacco seeks to suspend, revoke, and otherwise take disciplinary

action against the Respondent and its license on the basis of allegations that

the Respondent has violated Section 561.29(1)(a), Florida Statutes, by

permitting patrons to engage in illegal activities on the licensed premises and

by allowing the licensed premises to be used for the illegal keeping, selling,

or delivery of controlled substances. The Respondent contends that no

disciplinary action should be taken because the Respondent has qualified as a

"responsible vendor," and has taken reasonable steps to attempt to prevent the

conduct complained of in the Notice To Show Cause.

PRELIMINARY STATEMENT

On December 6, 1991, the Respondent was served with an Emergency Order of

Suspension, by means of which the Respondent's license was suspended. At the

same time, the Respondent was served with a nineteen count Notice To Show Cause

charging the Respondent with being in violation of Section 561.29(1)(a), Florida

Statutes, and proposing to suspend, revoke, and otherwise discipline the

Respondent and its license. The Respondent was offered and requested an

emergency hearing on an expedited basis. A formal evidentiary hearing was held

on December 11, 1991, at which time all parties were afforded an opportunity to

present evidence and argument. The Petitioner presented the testimony of

several witnesses, primarily law enforcement officers who described their

activities and observations during the course of an undercover narcotics

investigation at the licensed premises. The Petitioner also offered several

exhibits which were received in evidence. The Respondent presented the

testimony of several witnesses, including the owner of the licensed

corporation, and employees who testified primarily as to the licensee's efforts

to prevent illegal drug activity on the licensed premises and as to the absence

of any observation by the employees of any illegal drug activity on the licensed

premises. Following the presentation of the Respondent's evidence, the

Petitioner sought to present rebuttal evidence by means of the testimony of an

additional witness. Objection to the rebuttal testimony was sustained.

At the conclusion of the hearing, the Respondent requested that the normal

deadline for proposed recommended orders be shortened. The parties were allowed

seven days within which to file their proposed recommended orders. On December

18, 1991, both parties filed timely proposed recommended orders containing

proposed findings of fact and conclusions of law. The parties' proposals have

been carefully considered during the preparation of this Recommended Order.

Specific rulings on all proposed findings of fact submitted by all parties are

contained in the attached Appendix.

FINDINGS OF FACT

1. At all times relevant and material to this proceeding, a corporation

named 3673 Bird, Inc. (hereinafter referred to as "the Respondent corporation"),

has been the holder of alcoholic beverage license number 23-01224, series 4-COP,

for licensed premises knows as Uncle Charlie's, which premises are located at

3673 Bird Road, Miami, Dade County, Florida.

2. The Respondent is owned by Robert Sloate, who is also the sole officer

of the Respondent corporation. Mr. Sloate does not take an active part in the

day-to-day management of the licensed premises. Mr. Sloate makes only rare or

occasional visits to the licensed premises. During November of 1991 and during

the first few days of December of 1991, Mr. Sloate was hardly ever on the

licensed premises. Mr. Sloate did not have personal knowledge of the events

described in Paragraphs 5, 6, and 7 of these Findings of Fact.

3. The business of the licensed premises is managed by a group of four

managers. The Respondent corporation has a total of twenty-six employees,

including the four managers. The Respondent corporation has performed the

actions necessary to qualify as a "responsible vendor" within the meaning of

Section 561.705, Florida Statutes, as amended by Chapter 91-60, Laws of Florida.

1/ Those actions include training and instruction sessions for managers and

employees, meetings of employees, and the posting of signs to discourage

underage sales and illegal activity involving controlled substances.

4. The licensed premises were also equipped with TV cameras that cover

both doors, the front bar, and the back bar. However, the TV cameras do not

make a tape recording of what they cover, and there is no evidence that the TV

monitors are watched by employees of the Respondent corporation on any regular

basis.

5. During the course of an undercover investigation that began on or about

November 13, 1991, and continued until the licensed premises were raided on

December 6, 1991, the following transactions involving controlled substances

took place within the licensed premises:

(a) On or about November 14, 1991, a patron known as Mark sold two

baggies, each containing approximately one-half gram of cocaine, to a

confidential informant who was cooperating with the undercover investigation. 2/

(b) On or about November 14, 1991, a patron known as Gus sold cocaine to a

confidential informant who was cooperating with the undercover investigation.

(c) On or about November 14, 1991, a patron known as Mark sold cocaine to

Detective Bales.

(d) On or about November 15, 1991, a patron known as Sergio sold cocaine

to Detective Rivera.

(e) On or about November 15, 1991, a patron known as Clint sold cocaine to

Agent Lopez.

(f) On or about November 15, 1991, a patron known as Sergio sold cocaine

to Detective Bales.

(g) On or about November 15, 1991, a patron known as Mark sold cocaine to

Detective Bales.

(h) On or about November 15, 1991, a patron known as Mike sold cocaine to

Detective Rivera.

(i) On or about November 15, 1991, a patron known as Sergio sold cocaine

to Agent Lopez.

(j) On or about November 15, 1991, a patron known as Mike sold cocaine to

Detective Fernandez.

(k) On or about November 21, 1991, a patron known as Sergio sold cocaine

to Detective Bales.

(l) On or about November 21, 1991, a patron known as Sergio sold cocaine

to a confidential informant who was cooperating with the undercover

investigation.

(m) On or about November 22, 1991, a patron known as Sergio sold cocaine

to Agent Lopez.

(n) Or or about November 22, 1991, a patron known as Wesley sold cocaine

to Detective Bales.

(o) On or about November 22, 1991, a patron known as David sold cocaine to

a confidential informant who was cooperating with the undercover investigation.

(p) On or about November 22, 1991, a patron known as Clint sold cocaine to

Agent Lopez.

(q) On or about December 4, 1991, a patron known as Clint sold cocaine to

Agent Lopez.

(r) On or about December 4, 1991, a patron known as Charles Garcia sold

cocaine to Detectives Villanueva and Feria.

6. The vast majority of the drug transactions described in the preceding

paragraph were conducted in an open and casual manner, with no effort by either

party to conceal the transaction. Most of the drug transactions described above

took place when the licensed premises were quite crowded and noisy, which would

have made it difficult for some of the transactions to be noticed by employees

of the Respondent corporation. However, many of the transactions took place

near employees of the Respondent corporation, and from the open nature of the

transactions, it should have been obvious to the employees of the Respondent

corporation what was going on.

7. The flagrant nature of the illegal drug transactions taking place in

the licensed premises during the period of the undercover investigation is

illustrated by the following:

(a)The patron Sergio, who made several sales of cocaine to the undercover

police officers and to the confidential informant, was so flagrant about his

illegal activities that he carried a tambourine with him and would shake the

tambourine to advise all who were interested that he had cocaine available for

sale. At least one of the managers was aware of Sergio's tambourine shaking,

because he testified that it annoyed him. It was obvious to anyone who troubled

to look that Sergio was dealing in something, because after he shook his

tambourine there would be several people who would approach him, hand him money,

and receive from him small plastic baggies containing white powder. Sergio's

cocaine sale activity was so casual that on at least one occasion he took a

twenty dollar bill and delivered a baggie containing cocaine without even being

specifically asked for cocaine. The casual nature of Sergio's activity is also

indicated by the fact that he was not concerned about being asked for cocaine in

the presence of two other people, and he carried numerous baggies of cocaine in

his pockets.

(b) The patron Charles Garcia attempted to promote the ingestion of

cocaine inside the licensed premises after he delivered cocaine to Detectives

Villanueve and Feria.

(c) The undercover police officers observed numerous transactions during

which a patron would approach another patron, deliver money to the other patron,

and then receive a small plastic baggie from the person who took the money.

These observations included the observation of numerous such transactions

involving Sergio (the tambourine man) and several involving the patron known as

Mike.

(d) On one occasion during the investigation, Detective Rivera observed a

patron exiting the restroom with white powder beneath his nose.

(e) When Detectives Villanueva and Fiera were purchasing cocaine from

Charles Garcia on December 4, 1991, a patron named Ray asked Detective Fiera to

join him in the restroom. In the restroom, Ray ingested a white powder that

appeared to be cocaine in front of both Detective Fiera and the restroom

attendant.

8. All of the drug transactions described in Paragraphs 5, 6, and 7 of

these Findings of Fact took place within the licensed premises during business

hours, when employees and patrons were present on the licensed premises. None

of the employees ever called the police or asked any of the parties to the drug

transactions to leave the licensed premises.

9. The Department of Business Regulation, Division of Alcoholic Beverages

and Tobacco, and the Metro-Dade Police Department executed a raid on December 6,

1991, at the licensed premises. After the raid was completed, thirty-four

packets of unclaimed cocaine were found on the floor, as were several pills and

several packets of marijuana. An unclaimed pen knife with cocaine on the tip

was also found.

10. On the night of the raid, one of the bartenders tossed a baggie of

cocaine over the bar. That bartender was arrested for possession of cocaine.

11. On the night of the raid, Sergio was found to be in possession of

three baggies of cocaine, as well as other controlled substances.

12. The investigative expenses incurred in the course of the undercover

investigation of the Respondent corporation's premises totaled one thousand one

hundred forty-eight dollars ($1,148.00).

13. In brief summary, the vast majority of the drug transactions described

in Paragraphs 5, 6, and 7 of these Findings of Fact, took place in plain view.

The open exchanges of drugs and money, the casualness with which those selling

drugs on the licensed premises went about their business, and the frequency of

the drug transactions, all demonstrate a pattern of flagrant, persistent,

repeated, and recurring violations. The nature and frequency of the subject

drug transactions were such that they would have been noticed by a reasonably

diligent licensee.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding. See Section 120.57,

Florida Statutes.

15. Section 561.29, reads as follows, in pertinent part:

(1) The division is given full power and

authority to revoke or suspend the license of

any person holding a license under the

Beverage Law, when it is determined or found

by the division upon sufficient cause

appearing of:

(a) Violation by the licensee or his or its

agents, officers, servants, or employees, on

the licensed premises, or elsewhere while in

the scope of employment, or any of the laws

of this state or of the United States, or

violation of any municipal or county

regulation in regard to the hours of sale,

service, or consumption of alcoholic

beverages, or engaging in or permitting

disorderly conduct on the licensed premises,

or permitting another on the licensed

premises to violate any of the laws of this

state or of the United States; except that

whether or not the licensee or his or its

agents, officers, servants, or employees have

been convicted in any criminal court of any

violation as set forth in this paragraph

shall not be considered in proceedings before

the division for suspension or revocation of

a license except as permitted by chapter 92

or the rules of evidence.

(b) Violation by the licensee or, if a

corporation, by any officers thereof, of any

laws of this state or any state or territory

of the United States.

(c) Maintaining a nuisance on the licensed

premises.

16. Section 823.10, Florida Statutes, provides as follows with respect to

places where illegal activity involving controlled substances takes place:

Any store, shop, warehouse, dwelling house,

building, vehicle, ship, boat, vessel, or

aircraft, or any place whatever which is

visited by persons for the purpose of

unlawfully using any substance controlled

under chapter 893 or any drugs as described

in chapter 499, or which is used for the

illegal keeping, selling, or delivering of

the same, shall be deemed a public nuisance.

No person shall keep or maintain such public

nuisance or aid and abet another in keeping

or maintaining such public nuisance.

17. Section 893.13(2)(a), Florida Statutes, reads as follows:

(2)(a) It is unlawful for any person:

* * *

5. To keep or maintain 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 using these substances, or

which is used for keeping or selling them in

violation of this chapter.

18. Cocaine is a controlled substance. It is a violation of state law to

sell, use, deliver, or possess cocaine. See Section 892.13, Florida Statutes.

19. In the recommended order in Department of Business Regulation,

Division of Alcoholic Beverages and Tobacco v. Alejandrine Mora and Felix

Aristides, d/b/a Las Tunas Market and Cafeteria, DOAH Case Nos. 88-1604 and 88-

1608 (RO issued April 29, 1988), the Hearing Officer concluded, on the basis of

facts remarkably similar to the facts in this case:

The proof is clear and convincing that

patrons of the licensed premises possessed,

sold and delivered controlled substances on

the licensed premises in violation of the law.

In the instant case, the violations of law

were so numerous and flagrant as to compel the

conclusion that respondents fostered, condoned

or negligently overlooked them. Lash, Inc. v.

State, Department of Business Regulation, 411

So.2d 276 (Fla. 3d DCA 1982), and Pauline v.

Lee, 147 So.2d 359 (Fla. 2d DCA 1962). Under

such circumstances, the evidence supports the

revocation of respondents' licenses.

The above-quoted conclusion from the Mora and Aristides case was also quoted

with approval and followed in Department of Business Regulation, Division of

Alcoholic Beverages and Tobacco v. Ocean Drive Hotel Corporation, d/b/a Ocean

Haven Restaurant, DOAH Case No. 89-1096 (RO issued April 19, 1989). The facts

in the Ocean Drive Hotel case are also remarkably similar to the facts in this

case.

20. Here, as in the two cases cited in the preceding paragraph, the

flagrant, persistent, repeated, and recurring violations of the drug laws on the

licensed premises give rise to a presumption that such activity was at least

negligently overlooked by the licensee, if not actually fostered and condoned.

Normally, such negligence warrants revocation of the license, but here the

Respondent corporation argues that because it has complied with the responsible

vendor statute it is insulated from suspension or revocation of its license. In

this regard, Section 561.706, Florida Statutes, as amended by Chapter 91-60,

Laws of Florida, provides that the license of a vendor who has qualified as a

responsible vendor may not be suspended or revoked.

. . . for an employee's engaging in or

permitting others to engage in the illegal

sale, use of, or trafficking in controlled

substances, if the employee had completed the

applicable training prescribed by this act

prior to committing such violation, unless

the vendor had knowledge of the violation,

should have known about such violation, or

participated in or committed such violation.

No vendor may use as a defense to suspension

or revocation the fact that he was absent

from the licensed premises at the time a

violation of the Beverage Law occurred if the

violations are flagrant, persistent, repeated,

or recurring. (emphasis added)

21. In this case, as found in the findings of fact, the violations on the

licensed premises were so flagrant, persistent, repeated, and recurring that the

Respondent corporation, through its owner, should have known of the violations.

And as also found in the findings of fact, the owner was only rarely and

occasionally on the licensed premises. Accordingly, Section 561.706, Florida

Statutes, as amended by Chapter 91-60, Laws of Florida, does not protect the

licensee in this case from suspension or revocation.

RECOMMENDATION

On the basis of all of the foregoing, it is recommended that the Division

of Alcoholic Beverages issue a final order in this case revoking the Respondent

corporation's alcoholic beverage license number 23-01224, series 4-COP, for the

premises located at 3763 Bird Road, Miami, Dade County, Florida, and imposing an

administrative fine in the total amount of $18,000.00.

RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of December

1991.

__________________________________

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the Division

of Administrative Hearings this 24th

day of December 1991.

ENDNOTES

1/ Although the Respondent corporation has provided the courses of instruction

and training required by Section 561.705, and has posted the required signs, the

greater weight of the evidence is to the effect that the managers and employees

were merely paying lip service to the requirements of the responsible vendor

statute, and were not seriously committed to trying to detect and prevent

illegal possession, transfer, or use of controlled substances on the licensed

premises.

2/ Unless otherwise indicated, all sales of cocaine described in these findings

of fact involved the sale of approximately one-half gram of cocaine delivered in

a small plastic baggie.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-7901

The following are the specific rulings on all proposed findings of fact

submitted by all parties.

Findings proposed by the Petitioner

Paragraph 1: Accepted.

Paragraphs 2 through 19: Accepted in substance, but with many details omitted

as subordinate and unnecessary in view of the ultimate finding that the traffic

in controlled substances on the licensed premises was blatant, flagrant, and

frequent.

Paragraph 20: First sentence is accepted. Second sentence is rejected because

the "snorting" noise could have been caused by other activity that was not

illegal. Last two sentences rejected as irrelevant.

Paragraphs 21 and 22: Rejected as subordinate and unnecessary details in view

of other findings.

Paragraphs 23 through 25: Accepted in substance.

Paragraph 26: First sentence accepted. Second sentence rejected as somewhat

exaggerated.

Paragraph 27: Rejected as subordinate and unnecessary details in view of other

findings.

Paragraphs 28 and 29: Accepted in substance.

Paragraph 30: Rejected as subordinate and unnecessary details in view of other

findings.

Paragraphs 31 through 34: Accepted in substance.

Paragraph 35: Rejected as not supported by persuasive evidence that the

employee referred to "Sergio" as the "dope" man.

Paragraphs 36 through 38: Accepted in substance.

Paragraph 39: Rejected as subordinate and unnecessary details.

Paragraph 40: Accepted in substance.

Paragraphs 41 and 42: Rejected as irrelevant to issues in this case.

Paragraph 43: Rejected as not supported by competent substantial evidence.

Findings proposed by the Respondent

Paragraph 1: Accepted.

Paragraph 2: Accepted in substance, with some additional clarifying findings.

Paragraphs 3, 4, and 5: Rejected as constituting procedural details, rather

than proposed findings of fact, but included in substance in the Statement of

the Issues and the Preliminary Statement.

Paragraph 6(a): Accepted in substance.

Paragraph 6(b): First sentence accepted. Second sentence rejected as contrary

to the greater weight of the evidence. The police officers involved in the

undercover investigation observed numerous other narcotics transactions.

Paragraphs 6(c), (d), (e), and (f): Accepted in substance.

Paragraph 6(g): Rejected as contrary to the greater weight of the evidence.

Paragraph 6(h): Accepted in substance.

Paragraph 6(i): Rejected as irrelevant to the issues in this case.

Paragraph 6(j): First sentence accepted in substance. Second sentence rejected

as not supported by persuasive evidence and as contrary to the greater weight of

the evidence.

Paragraphs 6(k) and (l): Accepted in substance.

COPIES FURNISHED:

Nancy C. Waller, Esquire

Department of Business Regulation

The Johns Building

725 South Bronough Street

Tallahassee, Florida 32399-1007

Louis J. Terminello, Esquire

950 South Miami Avenue

Miami, Florida 33130

Sy Chadroff, Esquire

2700 S.W. 37th Avenue

Miami, Florida 33133

Richard W. Scully, Director

Department of Business Regulation

The Johns Building

725 South Bronough Street

Tallahassee, Florida 32399-1007

Donald D. Conn

General Counsel

Department of Business Regulation

The Johns Building

725 South Bronough Street

Tallahassee, Florida 32399-1007

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.