vs. ) CASE NO. 82-1772
Respondent. )
This matter came on for hearing in Miami, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on August 17, 1982. The final two volumes of the hearing transcript were received by the Division of Administrative Hearings on October 25, 1952.
The Division of Administrative Hearings received respondent's proposed findings of fact and conclusions of law on December 10, 1982. The parties were represented by counsel:
For Petitioner: James N. Watson, Jr., Esquire
For Respondent: Paul R. Lipton, Esquire
Alan S. Rosenthal, Esquire
That on or about March 26, 1982, you, ESCANDAR INC., D/B/A APARTMENT LOUNGE, a vendor licensed under the Beverage Laws of the State of Florida, through your agents, servants, or employees, to wit: CAROLYN F. BROOKS, while she was actively engaged as a dancer on your licensed premises, did unlawfully possess, sell, or deliver a controlled substance, as defined in FSS
893.03, to wit: cocaine to Beverage Officer
J. LOUD, on your licensed premises while on duty, in violation of FSS 893.13(1)(a) within FSS 561.29(1)(a).
That on or about the below listed dates, you, ESCANDAR INC., D/B/A APARTMENT LOUNGE, a vendor licensed under the Beverage Laws of the State of Florida, through your agents, servants, or employees, to wit: LORRIE A. JOBES, while she was actively engaged as a dancer on your licensed premises, did unlawfully possess, sell, or deliver a controlled substance, as defined in FSS 893.03, to wit: cocaine, on your licensed premises while on duty, in violation of FSS 893.13(1)(a) within FSS 561.29(1)(a).
NO DATE TIME TO WHOM SOLD
March 26, 1982 11:55 PM J. LOUD/LJ TERMINELLO
April 3, 1982 12:30 AM LJ TERMINELLO
April 3, 1982 3:00 AM LJ TERMINELLO
Transaction a) was observed by on-duty dancer BONNIE J. SMITH.
That on or about the below listed dates, you, ESCANDAR INC., D/B/A APARTMENT LOUNGE, a vendor licensed under the Beverage Laws of the State of Florida, through your agents, servants, or employees, to wit: BONNIE J. SMITH, while she was actively engaged as a dancer on your licensed premises, did unlawfully possess, sell, or deliver a
controlled substance, as defined in FSS 893.03, to wit: cocaine, on your licensed premises while on duty, in violation of FSS 893.13(1)(a) within FSS 561.29(1)(a).
NO DATE |
| TIME | TO WHOM SOLD |
a) April 1, | 1982 | 9:55 PM | LJ TERMINELLO |
b) April 3, | 1982 | 12:55 AM | LJ TERMINELLO |
c) April 3, | 1982 | 11:15 PM | LJ TERMINELLO |
Transaction b) involved codefendant barmaid LINDA A. VONLUTTICHAU. Transaction c) involved codefendant patron WILLIAM M. GOLDEN.
That on or about the below listed dates, you, ESCANDAR INC., D/B/A APARTMENT LOUNGE, a vendor licensed under the Beverage Laws of the State of Florida, through your agents, servants, or employees, to wit: LINDA A. VONLUTTICHAU, while she was actively engaged as a barmaid on your licensed premises, did unlawfully possess, sell, or deliver a controlled substance, as defined in FSS 893.03, to wit: cocaine, on your licensed premises while on duty, in violation of FSS 893.13(1)(a) within FSS 561.29(1)(a).
NO DATE TIME TO WHOM SOLD
a) April 3, 1982 | 2:05 AM | LJ TERMINELLO |
b) April 4, 1982 | 1:25 AM | LJ TERMINELLO |
c) April 10, 1982 | 1:10 AM | LJ TERMINELLO |
Transaction a) involved codefendant dancer BONNIE J. SMITH. Transaction c) involved cc-defendant barmaid LAURIE HEGARTY.
That on or about the below listed dates, you, ESCANDAR INC., D/B/A APARTMENT LOUNGE, a vendor licensed under the Beverage Laws of the State of Florida, through your agents, servants, or employees, to wit: LAURIE HEGARTY, while she was actively engaged as a barmaid on your licensed premises, did unlawfully possess, sell, deliver or use a controlled substance, as defined in FSS 893.03, to wit: cocaine, on your licensed premises while on duty, in violation of FSS 893.13(1)(a) within FSS 561.29.(1)(a)
NO | DATE | TIME | UNLAWFUL ACTIVITY |
a) | April 3, 1982 | 2:20 AM | possessed and used |
|
|
| (ingested) |
b) April 10, 1982 | 12:05 AM | sold to LJ TERMINELLO |
c) April 10, 1982 | 1:15 AM | possessed and used |
|
|
| (ingested) |
Transaction b) involved codefendant barmaid LINDA VONLUTTICHAU.
That on or about the below listed dates, you, ESCANDAR INC., D/B/A APARTMENT LOUNGE, a vendor licensed under the Beverage Laws of the State of Florida, through your agents, servants, or employees, to wit: KIMBERLEY E. CHITTY, while she was actively engaged as a dancer on your licensed premises, did unlawfully possess, sell, or deliver a
controlled substance, as defined in FSS 893.03, to wit: methaqualone and marijuana, on your licensed premises while on duty, in violation
of FSS 893.13 (1)(a) within FSS 561.29(1)(a).CONTROLLED
NO DATE TIME TO WHOM SOLD SUBSTANCE
April 9, 1982 10:40 PM LJ TERMINELLO Methaqualone
April 10, 1982 1:25 AM DR CHASTAIN Marijuana
That on or about the below listed dates, you, ESCANDAR INC., D/B/A APARTMENT LOUNGE, a vendor licensed under the Beverage Laws of the State of Florida, through your agents, servants, or employees, to wit: JILL D. CARPENTER, while she was actively engaged as a dancer on your licensed premises, did unlawfully possess, sell, or deliver a
controlled substance, as defined in FSS 893.03, to wit: marijuana, on your licensed premises while on duty, in violation of FSS 893.13(1)(a) within 561.29(1)(a).
NO DATE TIME TO WHOM SOLD
April 9, 1982 11:35 PM LJ TERMINELLO
April 10, 1982 12:55 AM LJ TERMINELLO
Transaction b) involved codefendant dancer SHERRY D. MAYS.
That on or about April 10, 1982, you, ESCANDAR INC., D/B/A APARTMENT LOUNGE, a vendor licensed under the Beverage Laws of the State of Florida, through your agents, servants, or employees, to wit: SHERRY D. MAYS, while she was actively engaged as a dancer on your licensed premises, did unlawfully possess, sell, or deliver a controlled substance, as defined in FSS 893.03, to wit: marijuana, to Beverage Officer LJ TERMINELLO, on your licensed premises while on duty, in violation of FSS 893.13(1)(a).
That between March 26, 1982 and April 17, 1982 you, ESCANDAR INC., D/B/A APARTMENT LOUNGE, a vendor licensed under the Beverage Laws of the State of Florida, through your Directors, Stockholders, Corporate Officers, Employees, Agents and Servants, did keep or maintain a public nuisance on your licensed premises, to wit: maintaining a building or place which is used for illegal keeping, selling, or delivering of substances controlled under Chapter 893, Florida Statutes, in violation of FSS 823.10 within FSS 561.29(1)(a)(c).
That between March 26, 1982 and April 17, 1982 you, ESCANDAR INC., D/B/A APARTMENT LOUNGE, a vendor licensed under the Beverage Laws of the State of Florida, through your Directors, Stockholders, Corporate Officers, Employees, Agents and Servants, did maintain a place, to wit: your licensed premises at 17490 Biscayne Blvd., North Miami Beach, (Dade County), Florida, which place is used for keeping or selling of controlled substances, to wit: cocaine, marijuana, and methaqualone, in violation of FSS 893.13(2)(a)(5) within FSS 561.29 (1)(a)(c)
That on or about the below listed dates and times, you, ESCANDAR INC., D/B/A APARTMENT LOUNGE, a vendor licensed under the
Beverage Laws of the State of Florida, through your agents, servants, entertainers, or employees, to wit: JILL D. CARPENTER, KIMBERLEY CHITTY, BONNIE J. SMITH, and SHERRY
D. MAYS, while they were actively engaged as dancers on your licensed premises, did unlawfully beg or solicit patrons, customers or visitors on the licensed premises, to wit: LJ TERMINELLO, J. LOUD and DR CHASTAIN to purchase an alcoholic beverage for the licensee's employee, agent, servant, or entertainer, or your licensed premises while they were on duty, in violation of FSS 562.131(1) within FSS 561.29(1)(a).
| WHOM |
NO DATE | TIME |
| ENTERTAINER | SOLICITED |
a) March 26, 1982 | 11:00 | PM | CARPENTER | DR CHASTAIN |
b) April 9, 1982 | 10:45 | PM | SMITH | TERMINELLO/ |
|
|
|
| LOUD |
c) April 9, 1982 | 10:45 | PM |
| TERMINELLO/ |
|
|
|
| LOUD |
d) April 10, 1982 | 12:20 | AM | SMITH | TERMINELLO/ |
|
|
|
| LOUD |
e) April 10, 1982 | 12:56 | AM | MAYS | TERMINELLO |
That between March 26, 1982 and April 10, 1982, you, ESCANDAR INC., D/B/A APARTMENT LOUNGE, a vendor licensed under the Beverage Laws of the State of Florida, through your Directors, Stockholders, and Corporate Officers, to wit: RAFAEL ESCANDAR, did unlawfully knowingly permit any person, to wit: JILL D. CARPENTER, KIMBERLEY E. CHITTY, BONNIE J. SMITH, and SHERRY D. MAYS, to loiter in or about the licensed premise for the purpose of begging or soliciting any patron, customer, or visitor, to wit: LJ TERMINELLO.
J. LOUD and DR CHASTAIN, to purchase an alcoholic beverage, in violation of FSS
562.131 (2) within FSS 561.29(1)(a).
That on or about the below listed dates, you, ESCANDAR INC., D/B/A APARTMENT LOUNGE, a vendor licensed under the Beverage Laws of the State of Florida, through your agents, servants, or employees, to wit: KIMBERLEY E. CHITTY, JILL D. CARPENTER and SHERRY D. MAYS, while they were actively engaged as dancers on your licensed premises, did unlawfully offer to commit prostitution, lewdness or assignation with Beverage Officer LJ TERMINELLO, on your licensed premises while on duty, in violation of FSS 796.07(e)(a) within FSS 561.29(1)(a).
Petitioner abandoned the second allegation in paragraph six (that Mrs. Chitty sold marijuana on April 10, 1982) at the hearing.
At all pertinent times, Escandar, Inc. had a valid alcoholic beverage license, No. 23-1461 4 COP. The parties so stipulated. Rafael Escandar is president of Escandar, Inc. which owns the building in which he manages the "Apartment Lounge," a bar, featuring "female nude dancing as entertainment." (I T. 25)
On August 5, 1981, petitioner formally advised respondent that solicitation by employees of alcoholic beverages from patrons was proscribed by law. The year before allegations of such offenses had resulted in a stipulated
$500.00 penalty against respondent.
On March 26, 1982, at about quarter past ten, Officers Louis J. Terminello, and Juanita Loud entered the Apartment Lounge, posing as customers. In a separate group, three other undercover agents, Officers Davis, Chastain and Iturralde also visited the establishment. The place was dark and noisy. Aside from illuminated exit signs, the only lights were on stage and in the girls' dressing room. Loud music but no light emanated from the juke box. People could not be heard from one table to the next and had to speak very loudly to be heard from one bar stool to the next. These conditions obtained on all subsequent visits, as well.
Mr. Terminello and Ms. Loud struck up a conversation with Carol Brooks, a dancer who stopped at their table clad in a sheer negligee, between dances. They asked her for a gram of cocaine. She said she didn't think a gram was available on the premises, but took Ms. Loud back to the dressing room and gave her an amber glass vial containing a smaller amount of cocaine. On their return to the table where Mr. Terminello had stayed, he passed a ten dollar bill to Ms. Loud, who gave it to Ms. Brooks. At her request, Mr. Terminello bought Ms. Brooks a drink.
At one point Terminello left the table for the bar, and another dancer, Lorrie Jobes, asked him for a drink, which he bought for her. Later, after the undercover officers brought up the subject of drugs, Ms. Jobes sold them a gram of cocaine for $70.00. The transaction took place in the women's restroom.
Less than a gram may have in fact been involved, since the chemist received only two tenths of a gram of cocaine. Petitioner's Exhibit No. 4.
Both groups of undercover agents returned to the Apartment Lounge on the following Thursday, April 1, 1982. Terminello and Loud asked a third dancer, Bonnie Smith, about cocaine and purchased a small amount from her for
$5.00. This transaction occurred at a table in the bar.
The next night both groups showed up again. Mr. Terminello gave Lorrie Jobes $70.00 for a gram of cocaine which she delivered to him at his table shortly after midnight. At one point Ms. Loud left the table and a dancer offered to give Mr. Terminello a blow job in his car when she got off work for
$20.00. Later another dancer, Jill Carpenter, offered to commit oral sex on her next break for $50.00 in the parking lot.
Bonnie Smith told Terminello that Linda Vonluttichau, another dancer, had good cocaine for sale at $80.00 per gram with a two gram minimum. After speaking to Ms. Vonluttichau himself, Mr. Terminello left $160.00 inside a napkin on the bar. After she had picked up the money, she waved him over to the bar and gave him some cocaine in a Zip-Loc bag. Later Laurie Hegarty, a barmaid, asked Mr. Terminello if she could ingest some of the cocaine he had purchased because, she said, she had heard it was very good. He obliged. Still later, Mr. Terminello purchased half a gram of cocaine from Lorrie Jobes for
$30.00.
About twenty of eleven on the night of April 3, 1982, Officers Loud, Terminello, Chastain, Iturralde and Davis made a fourth visit to the Apartment Lounge. Bonnie Smith led Terminello to the women's restroom where he purchased half a gram of cocaine from one William Golden for $30.00. Later the same evening he bought a gram of cocaine for $80.00 from Linda Vonluttichau, which she delivered to him over the bar while Rafael Escandar was seated near the other end of the bar.
Another visit by the undercover agents, on April 9, 1982, was no less eventful. Mr. Terminello purchased six Quaalude tablets from still another dancer, Ms. Chitty, a marijuana cigarette from Jill Carpenter for $2.00, and two ounces of marijuana from Sherry Mays, also a dancer at the Apartment Lounge, not to mention drinks for Ms. Chitty and Bonnie Smith. Sherry Mays asked Terminello to buy her a drink, as well. It was also Sherry Mays who, seeing that Mr. Terminello's shirt bore the legend "SUNOCO," indicated her willingness to "agree to exchange a tank full of gas for oral sex on a regular basis, two or three times a week." (II T. 8) After talking to Ms. Linda Vonluttichau about purchasing two grams of cocaine and at her direction, Mr. Terminello gave Ms. Hegarty $160.00. Ms. Vonluttichau later delivered the cocaine to Mr. Terminello at his table. Still later Mr. Terminello accompanied Ms. Hegarty to the women's rest room where she ingested some of the cocaine Mr. Terminello had just purchased.
The undercover agents made a final visit to the Apartment Lounge on April 16, 1982. That night Rafael Escandar told Mr. Terminello that
"an old friend of his in the North Miami Police Department . . . [advised that the bar was under investigation] for narcotics and that [Terminello] needed to be especially careful because the person who called him described [Terminello] and Loud as having bought narcotics on the premises.
"So he cautioned me about being careful, that the police were going to arrest [Terminello and Loud] if they found [them] or something like that." (II T. 18-19)
This was shortly before other beverage officers arrived and executed a search warrant. The search turned up about one fifth of a gram of cocaine.
Petitioner's Exhibit Nob. 14.
Rafael Escandar was on the licensed premises every night the undercover agents were there, except for April 1, 1982. He routinely spent time at the bar on a particular stool, in between bookkeeping chores that he performed in an office closed off from the bar's not inconsiderable distractions. As standard practice, hem and Barbara Abbott, who has worked at the Apartment Lounge for more than a decade, specifically warned the dancers, many of whom were transient, against prostitution, drug vending and solicitation of drinks. Dancers have been fired for failing to observe one or more of these prohibitions. According to Tom Mandy, formerly a police officer who visited the Apartment Lounge regularly "to make sure there was no prostitution going on in the place," II T. 223, and occasionally to evict unruly patrons, management's "rules" were strictly enforced, and Mr. Escandar, if the police "wanted people fired that [they] thought were undesirable . . . would fire them immediately. There wouldn't be any questions asked." (II T. 231)
Nothing in the evidence suggested that Mr. Escandar expected any share of the money (or gasoline) solicited or obtained by the dancers in exchange for their illegal goods and services. Except for Laurie Hegarty and Linda Vonluttichau, who was employed as a barmaid for a year and a half, the offending employees had not worked long for the Apartment Lounge. Kimberly Chitty worked less than a full night, one of only 20 nights over a period of a few months. Generally, they were transients or "street girls." Lorrie Jobes worked only ten days, she was fired before the raid on April 16, 1982. The evidence did not show what extent, if any, Mr. Escandar or Escandar Inc. profitted from sales of drinks solicited by the dancers.
Early on in the investigation, Mr. Escandar noticed officers Loud and Terminello. They stood out because they came together as a couple and because dancers congregated at their table. Mr. Escandar testified that he "never thought about drugs." II. T. 270 Instead, he said he "thought that they were there to have some, trying to make out, to get a party at the end of the night."
II. T. 270 On April 16, 1982, Escandar testified, he decided they were undesirables and told them that the police were coming, in an effort to get them to leave the bar. He explained that he had not earlier sought to discourage their presence in the bar, "because the girls ke[pt] telling me that they were spending money." (II. T. 274)
There was no evidence of drug sales to anybody other than undercover agents. Mr. Terminello and Ms. Loud developed a certain rapport with many of the dancers, one of whom propositioned Ms. Loud.
In preparing the foregoing findings of fact, respondent's proposed findings of fact, to the extent they have been extricable from proposed conclusions of law, have been largely adopted, in substance. To the extent they have been rejected, they have been deemed irrelevant or unsupported by the weight of the evidence.
CONCLUSIONS OF LAW
Petitioner has "full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law," wherever there has been "[v]iolation by the licensee of his or its . . . servants . . . on the licensed premises . . . of any of the laws of this state Section 561.29(1)(a), Florida Statutes (1981), but only upon a showing "that the licensee was culpably responsible for the alleged violation as a result of its own negligence, intentional wrongdoing or lack of diligence." G & B of Jacksonville, Inc. v. State Department of Business Regulation, Division of Beverage, 366 So.2d 877
(Fla. 1st DCA 1979)(proof of single law violation by employee without more insufficient).
In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence. Disciplinary licensing proceedings like the present case are always potentially license revocation proceedings, since the penalty for the infraction alleged lies within the discretion of the disciplining authority, if allegations of misconduct are established at the hearing. Florida Real Estate Commission v. Webb, 367 So.2d
201 (Fla. 1979). License revocation proceedings have, indeed, been said to be "'penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. ,1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980).
At the formal hearing, petitioner had the burden to show by clear and convincing evidence that respondent committed the acts alleged in the administrative complaint. Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1974); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966).
The evidence overwhelmingly established multiple violations of Florida law by respondent's employees, on the licensed premises, including violations of Sections 893.13(1)(a), 562.131(2), and 796.07 (3)(a) , Florida Statutes (1981). The only real issue is whether the evidence is sufficient to impute responsibility to the licensee.
A licensee (or the chief executive officer of a corporate licensee) should not be permitted to turn the music up and the lights down, hire several "street girls" to take their clothes off to attract and entertain his clientele and then profess surprise that anything untoward has happened. In the present case, moreover, Mr. Escandar testified that he was suspicious of what was going on at Officer Terminello's table, but originally did nothing about it because the -undercover agents were spending so much money. At the very least, the evidence established culpable negligence.
ENTRAPMENT NO DEFENSE TO NEGLIGENCE
Respondent contends any dereliction on its part should be excused because there was no evidence that anybody other than undercover agents was offered sex or drugs. In general, respondent raises the defense of entrapment, without citing any authority for the availability of such a defense in these circumstances. This argument misapprehends the issue with respect to respondent. The question is not whether Mr. Escandar was predisposed to commit a crime. The essential question is whether he exercised due diligence to see that violations of law did not occur on the premises, especially in light of circumstances he himself testified were suspicious, and in light of his previous problem with alleged B-girl violations.
That petitioner revoke respondent's beverage license.
DONE AND ENTERED this 20th day of December, 1982, in Tallahassee, Florida.
ROBERT T. BENTON, II
Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1982.
Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Paul R. Lipton, Esquire
Captain John Harris Ernest R. Graham Building 1350 Northwest 12 Avenue
Charles A. Nuzum, Director Department of Business Regulation Division of Alcoholic Beverages &
