STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 77-1444
) GOLDEN DOLPHIN NUMBER 2, INC. ) t/a GOLDEN DOLPHIN, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings at 1300 West Lee Road, office of the Division of Alcoholic Beverages and Tobacco, Orlando, Florida, at 11:00 A.M., September 20, 1977.
APPEARANCES
For Petitioner: Lawrence D. Winson, Esquire
Division of Alcoholic Beverages and Tobacco
725 South Bronough Street Tallahassee, Florida 32304
For Respondent: Lawrence M. Litus, Esquire
231 East New Haven Melbourne, Florida 32901
ISSUE
Whether or not on or about April 14, 1977, the Respondent, Golden Dolphin Number Two, Inc., licensed under the beverage laws, and/or its agent, servant or employee, Tammy O'Brien, aka Rachelle O'Connors, on the Respondent's licensed premises, did knowingly perform, or participate in an obscene, lewd, lascivious or indecent show, exhibition, or performance by a live person before an audience, contrary to s. 847.011(4), F.S., thereby establishing a violation on the part of the licensee under s. 561.29, F.S.
Whether or not on or about April 14, 1977, the Respondent, Golden Dolphin Number Two, Inc., licensed under the beverage laws, and/or its agent, servant or employee, James Balough, on its licensed premises, did knowingly allow or permit Tammy O'Brien, aka Rachelle O'Connors, to knowingly perform, or participate in an obscene, lewd, lascivious or indecent show, exhibition, or performance by a live person before an audience, contrary to 847.011(4), F.S., thereby establishing a violation on the part of the licensee under s. 561.29, F.S.
Whether or not on or about February 25, 1977, the Respondent, Golden Dolphin Number Two, Inc., licensed under the beverage laws, failed to manage and maintain control of all business conducted on its licensed premises, by allowing Vernon Wilmer, Jr. and/or James Balough to be responsible for expenses relating to the operation and maintenance of the business, liable for any outstanding obligations arising out of the operation of the business, responsible for equipment of the business and whereby that contract did not contemplate the relationship of principal and agent between the licensee and employee, contrary to Rule 7A-3.17, F.A.C., thereby establishing a violation on the part of the licensee under s. 561.29, F.S.
Whether or not on or about May 25, 1977, the Respondent, Golden Dolphin Number Two, Inc., licensed under the beverage laws, and/or its agent, servant or employee, employed by salary or on a contractual basis to entertain, perform or work upon the licensed premises, to wit: Mary Elizabeth Antone did beg or solicit a customer or patron, to wit: Beverage Sgt. Jack Wallace on the Respondent's licensed premises to purchase a beverage, alcoholic or otherwise, for the Respondent or its agent, servant, employee or entertainer, contrary to
s. 562.131(1), F.S., thereby establishing a violation on the part of the licensee under s. 561.29, F.S.
Whether or not on or about May 25, 1977, the Respondent, Golden Dolphin Number Two, Inc., licensed under the beverage laws, and/or its agent, servant or employee, employed by salary or on a contractual basis to entertain, perform or work upon the licensed premises, to wit: Glenda Antone Brown, did beg or solicit a customer or patron, to wit: Deputy Tony Mulqueen, on its licensed premises, to purchase a beverage, alcoholic or otherwise, for the Respondent, or its agent, servant or employee or entertainer, contrary to s. 562.131(1) F.S., thereby establishing a violation on the part of the licensee under s. 561.29, F.S.
Whether or not on or about April 19, 1977, the Respondent, Golden Dolphin Number Two, Inc., licensed under the beverage laws, failed to maintain on its licensed premises copies of invoices for the purchases of beer or wine for a period of three years contrary to Rule 7A-4.45, F.A.C., thereby establishing a violation on the part of the licensee under s. 561.29, F.S.
There was found in the notice to show cause counts six and seven; these counts were withdrawn from consideration at the commencement of the hearing.
FINDINGS OF FACT
The Respondent, Golden Dolphin Number Two, Inc., is the holder of license no. 15-388, held with the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco. This license is held to do business at a premises located at 281-B, A1A, South Patrick, Satellite Beach, Florida.
On April 13, 1977, beverage agents Perry L. Lyle and James Boutherin went to the licensed premises at around 11:30 P.M. They sat at a cocktail table in front of the stage located in the licensed premises, and ordered drinks.
At approximately 12:30 A.M., April 14, 1977, a female employee/entertainer of the licensee, one Tammy O'Brien whose stage name is Rachelle O'Connors, conducted a performance on the stage. The performance was a type of "striptease". In the course of the "striptease" act this dancer approached one of the customers, a Mr. David R. Johnson, and removed his eye glasses with her hands. She then took the folded eye glasses and stretched out
the g-string that she was wearing and inserted the glasses into the genital area and made a stroking motion, simulating sexual activity, by means of the eye glasses. She then returned to Johnson and tilted his head back and inserted the glasses into his mouth. After this episode with Johnson, she continued to dance, until a second male subject appeared from the audience and while Ms.
O'Brien had her legs spread apart the second male customer pushed his face near her genital area. There was no touching of his face to her genital area. She then took her hands and rubbed them in her pubic area and placed her fingers in the mouth of the second male patron. She was subsequently arrested for these activities.
During the course of this performance, a man was working behind the bar directing the waitresses and handing out glasses and bottles of alcoholic beverages. This man was James Balough. Balough indicated to the beverage agents that he was in charge of the licensed premises and was in partnership agreement with the Golden Dolphin, under the terms of a management contract with the Golden Dolphin. This arrangement was a joint venture with another individual whose name is Vernon Wilmer.
Balough was also arrested for allowing the dance to occur.
In the course of the hearing David R. Johnson testified and his testimony established that on other occasions female dancers in the licensed premises had taken glasses from male customers and inserted them into the dancer's genital area. In fact, this had occurred to him before the episode with Ms. O'Brien. These other dancers spoken of were entertainers of the licensee. One other fact that was established by Johnson's testimony was that the glasses returned to him had a peculiar odor which was not there when he had had the glasses removed from his face.
None of the listed corporate officers of the licensee were on the premises on April 13 and 14, 1977, at the time of the activities by Tammy O'Brien. The two principal officers are Mary Seidman, President and Milton Seidman, Vice President.
On April 19, 1977, the two beverage officers returned to the licensed premises to make further investigation. They requested Milton Seidman to produce the beer and wine invoices on purchases for the licensed premises. These invoices were not available on the licensed premises, and no permission had been given for the invoices to be kept in any other location. The subject invoices were subsequently produced on April 27, 1977.
During the course of the investigation of April 19, 1977, a managerial agreement between the Golden Dolphin Number Two, Inc., a Florida corporation, and James Balough and Vernon W. Wilmer, Jr., was produced. This managerial agreement is Petitioner's Exhibit 2, admitted into evidence.
Article one of that managerial agreement states that the Golden Dolphin Number Two, Inc., continues as the sole owner of the business. It further states that effective March 1, 1977, that the managers, Vernon W. Wilmer, Jr. and James Balough, have the right to enter upon and operate the business as managers subject to the provisions of the agreement. The agreement also states that the business will be operated under the name "Golden Dolphin Show Bar". The managers, under the terms, agree to construct at their cost a stage facility and to open a bank account with a balance of $500, for the operation of the business. Another provision establishes that the parties agree that the nature of the business to be operated by the manager is beer, wine,
with entertainment and serving of food, where permitted. It contains a provision that the owner and manager agree that all expenses incurred related to the operation and maintenance of the business shall be the responsibility of the manager. Finally, in compensation for the performance of managerial duties, the manager is entitled to 50 percent of the net proceeds after all obligations arising out of said business shall have been satisfied, and the owner shall receive the remaining 50 percent.
In connection with the managerial agreement an account was opened in the American Bank of Merit Island, Florida. This account was for Golden Dolphin Enterprises, Inc., d/b/a Golden Dolphin Show Bar. The amount of the initial deposit was $500 and it allowed for the signatories, Milton Seidman and James Balough to withdraw money from the account. Although, it was pointed out at the hearing that the authority for opening the account and allowing James Balough to sign checks was not properly executed in terms of the authority of the corporation Golden Dolphin Enterprises, Inc.; nonetheless, the money was placed in the account and the two signatories were allowed to withdraw money or write checks. The testimony did not point out that James Balough had ever written a check on this account and on June 24, 1977, the signature cards were changed to allow only Milton Seidman and Mary Seidman to write checks. Petitioner's Composite Exhibit 4, admitted into evidence, contains the attempted resolution of the board of directors spoken of and the signature card for the account in question. The account was opened February 25, 1977.
On May 25, 1977, beverage agent Jack Wallace and officer Tony Mulqueen of the Brevard County, Florida, Sheriff's Office, went to the licensed premises. They entered at around 9:30 P.M. and took a seat at one of the tables in the lounge area. They then ordered a beer and watched the show. The entertainment was as described before in the April 13 and 14, 1977 visits of the other officers. At the conclusion of their routine, two female dancers, employees of the Respondent, came to the table where the officers were seated. These two dancers were not summoned by the officers. The dancers were Mary Elizabeth Antone and Glenda Antone Brown. A conversation ensued and the two women asked the officers if they would buy the women a bottle of champagne.
Specifically, Mary Elizabeth Antone said "What are you drinking that terrible old beer for, why not buy us a bottle of champagne". She then stated that the price of the bottle of champagne was $20. She motioned for a waitress and placed the order. The waitress went to the bar area and talked to a man behind the bar who was identified as Peter Wilder, the bartender. After this conversation the waitress returned bringing two buckets and two bottles of champagne and four glasses. One bottle was for agent Wallace and Mary Elizabeth Antone and the second bottle was for Glenda Antone Brown and officer Tony Mulqueen.
The sequence of the other bottle being ordered for Glenda Antone Brown and Tony Mulqueen was based upon the request by Brown that a drink be purchased and her additional statement "I'm very thirsty after performing and it was very hot back stage", followed by a comment "you should stop drinking that beer and drink champagne". After which Glenda Antone Brown requested that Mulqueen purchase a bottle of champagne for them, meaning Mulqueen and Brown. Brown then motioned the cocktail waitress over and the waitress stated that the price of champagne was $20 a bottle. At this point the bottle of champagne that was ordered was brought over with the bottle being provided for Mary Elizabeth Antone and officer Wallace.
The four individuals sat at the table for approximately 45 minutes after the two bottles of champagne had been brought to the table. Then officer Mulqueen and Glenda Antone Brown left the table, at which point Mary Elizabeth Antone requested agent Wallace to buy two more bottles of champagne and the waitress was summoned and brought two more sealed bottles of champagne in addition to the original two. At this point officer Mulqueen and other law enforcement officers entered the licensed premises and the girls were arrested for soliciting drinks from patrons. (The bottles and buckets are part of composite exhibit number 5 by the Petitioner which were admitted into evidence. This exhibit is being maintained in the evidence vault of the district headquarters of the Petitioner located in Orlando, Florida.)
One of the other individuals in the bar area during the course of the investigation of May 25, 1977, was Lenny Stewart, an employee of the Respondent. Stewart had been talking to the waitress who was bringing the champagne bottles to the table where officers Wallace and Mulqueen were seated. When Stewart was approached by officer Tom Fair of the Brevard Sheriff's Office, he provided some tally sheets which the Petitioner claims reflect the number of drinks solicited by employees. When the purchases were being made the bartender was marking in the books; however, officer Fair could not see what names were being credited. Nonetheless, at the conclusion of the episode, when the alleged tally sheets were seized there were entries in the book pertaining to the names Darlene and Tiffany, which corresponded respectively as aliases for Mary Elizabeth Antone and Glenda Antone Brown. These were marks which showed what appeared to be the number 1, then a $20 entry by the 1. These indications are found in Petitioner's Composite Exhibit number 7, admitted into evidence.
Milton Seidman, the Vice President of the licensee corporation indicated that the tally sheets were kept as a check on inventory, to avoid theft on the part of his employees.
The Petitioner introduced as Petitioner's Exhibit number 3 admitted into evidence, a sworn written statement from one Dennis Harold Hampton who claimed through his statement and other oral representations to officers Doyle and Mulqueen, to have been a former employee at the Golden Dolphin Number Two. In addition, the Petitioner through this statement attempts to establish the knowledge of the ownership, particularly Milton Seidman about the activities of the women in the bar soliciting drinks from patrons, to the extent that Milton Seidman condoned this activity. Moreover, through the written statement the Petitioner seeks to describe a system of keeping tally on the number of drinks sold.
There is another statement by Donna Debra Tipton which is Petitioner's Exhibit number 6, admitted into evidence, which is an effort at establishing Milton Seidman's knowledge of the solicitation of drinks by employees in the licensed premises and the technique of recording this on a tally sheet.
The undersigned did not have sufficient opportunity to review in detail these two written statements submitted at the hearing. The post-hearing analysis of the statements shows them to be efforts at establishing material issues of fact in the counts pertaining to the alleged solicitation by the two female employees, which took place on May 25, 1977, as opposed to serving as corroboration of already established material issues of fact. Therefore, the attempts at describing the alleged knowledge of the licensee of solicitation of drinks by employees found in the written statements is rejected and may not be used to establish material issues of fact which have not been presented by competent evidence because the statements constitute unacceptable hearsay.
Even without the benefit of the statements of Dennis Harold Hampton and Donna Debra Tipton, it is clear that Mary Elizabeth Antone and Glenda Antone Brown did beg or solicit the customer or patron, on the licensed premises, to purchase a beverage, alcoholic or otherwise, for the benefit or those employees and entertainers, which is contrary to s. 562.131(1), F.S. However, the Petitioner has failed to show through competent evidence that the violations of the employees placed the licensee in jeopardy under the penalty provisions found in 561.29, F.S. There was no competent evidence which showed that the licensee was culpable based upon any willful intent, negligence or lack of due diligence. See Trader Jon, Inc. v State Beverage Department, 119 So.2d 735 (1st DCA 1960). Additionally, to penalize the licensee under s. 561.29, F.S., there must be a showing of more than an isolated incident as is the case here. See Taylor vs. State Beverage Department, 194 So.2d 321 (2d DCA, 1967).
The facts of the testimony in this cause do show that on April 14, 1977, in the licensed premises Tammy O'Brien, aka Rachelle O'Connors, did knowingly perform or participate in an obscene, lewd, lascivious or indecent show, exhibition, or performance by a live person before an audience, contrary to s. 847.011(4), F.S. In view of the facts of that performance of the employee, it has been shown that the licensee is culpable for the acts of its employee committing violation of s. 847.011(4), F.S., due to negligence and lack of due diligence. Therefore, the licensee is subject to the penalties of s. 561.29, F.S. Moreover, the facts of the events in the performance of Tammy O'Brien on April 14, 1977, established that James Balough, the agent/manager of the licensee, did not knowingly allow or permit Tammy O'Brien, aka Rachelle O'Connors to knowingly perform or participate in an obscene, lewd, lascivious or indecent show, exhibit, or performance by a live person before an audience, contrary to 847.011(4), F.S. This violation on the part of James Balough makes the licensee culpable by its negligence or lack of due diligence, and causes the licensee to be subject to the penalties found in s. 561.29, F.S.
Discussion has already been entered into on the question of the management and control of the licensed premises pertaining to the surrender of control and management of the licensed premises from the licensee to Vernon Wilmer, Jr., and/or James Balough. Other information on this question may be found in the corroborative statement offered by Dennis Harold Hampton which is Petitioner's Exhibit 3, admitted into evidence. In his sworn statement Hampton speaks of Jim, meaning James Balough, having a 25 percent interest in the licensed premises at one point. This corroborative information taken in view of the testimony already offered, in particular, the managerial agreement and the bank account activity, establishes that the licensee failed to manage and maintain control of all business conducted on its premises, by allowing Vernon Wilmer, Jr. and/or James Balough to be responsible for expenses relating to the operations and maintenance of the business, liable for any outstanding obligations arising out of the operation of the business, and responsible for the equipment of the business. In addition, the contract did not contemplate the relationship of principal and agent between a licensee and employee. This position was contrary to Administrative Rule 7A-3.17, F.A.C.
At the time the inspection was made on April 19, 1977, it was shown that the sales tickets or invoices for delivery of malt beverages and wines to the licensee were not available. This unavailability established a violation of Rule 7A-4.45, F.A.C., thereby violating s. 561.29, F.S.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this cause.
It is concluded as a matter of law, based on the facts in this case, that on or about April 14, 1977, the Respondent, Golden Dolphin Number Two, Inc., licensed under the beverage laws, and/or its agent, servant and employee, Tammy O'Brien, aka Rachelle O'Connors, on its licensed premises, did knowingly perform or participate in an obscene, lewd, lascivious or indecent show, exhibition or performance by a live person before an audience, contrary to s. 847.011(4), F.S., which subjects the licensee to the penalties found in s. 561.29, F.S.
It is concluded as a matter of law, based upon the facts in this case, that on or about April 14, 1977, the Respondent, Golden Dolphin Number Two, Inc., licensed under the beverage laws, and/or its agent, servant and employee, James Balough, on the licensed premises, did knowingly allow or permit Tammy O'Brien, aka Rachelle O'Connors, to knowingly perform or participate in an obscene, lewd, lascivious or indecent show, exhibition or performance by a live person before an audience, contrary to s. 847.011(4) , F.S., which subjects the licensee to the penalties found in s. 561.29, F.S.
It is concluded as a matter of law based on the facts in this case, that on or about February 25, 1977, the Respondent, Golden Dolphin Number Two, Inc., licensed under the beverage laws, failed to manage and maintain control of all business conducted on its licensed premises, by allowing Vernon Wilmer, Jr. and/or James Balough be responsible for expenses relating to the operation and maintenance of the business, liable for any outstanding obligations arising out or the operation of the business, responsible for equipment of the business and whereby the contract did not contemplate the relationship of principal and agent between the licensee and employee, contrary to Rule 7A-3.17, F.A.C., which subjects the licensee to the penalties found in s. 561.29, F.S.
An examination of the facts in this cause pertaining to the violation of law by Mary Elizabeth Antone, (s. 562.131(1), F.S.), does not establish a violation for which the licensee can be penalized under s. 561.29, F.S.
An examination of the facts in this cause pertaining to the violation of law by Glenda Antone Brown, (s. 562.131(1), F.S.), does not establish a violation for which the licensee can be penalized under s. 561.29, F.S.
It is concluded as a matter of law based upon the facts in this case that on or about April 19, 1977, the Respondent, Golden Dolphin Number Two, Inc., licensed under the beverage laws, failed to maintain on its licensed premises, copies of invoices for the purchase of beer and wine for a period of three years, in violation of Rule 7A-4.45, F.A.C., which subjects the licensee to the penalties found in s. 561.29, F.S.
In view of the violations which have been established in this case, it is recommended that the license no. 15-388, held by the Respondent, Golden Dolphin Number Two, Inc., be suspended for a period of 45 days.
DONE A ENTERED this 6th day of October, 1977, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
Lawrence D. Winson, Esquire Division of Alcoholic Beverages
and Tobacco
725 South Bronough Street Tallahassee, Florida 32304
Lawrence M. Litus, Esquire
231 East New Haven Melbourne, Florida 32901
| Issue Date | Proceedings |
|---|---|
| May 23, 1980 | Final Order filed. |
| Oct. 06, 1977 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 27, 1977 | Agency Final Order | |
| Oct. 06, 1977 | Recommended Order | Respondent allowed employee to engage in lewd acts, failed to manage own business, failed to keep invoices on premises. Recommended suspension of 45 days. |
