STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 82-2917
) HARRY'S DISCOTHEQUE, INC., d/b/a ) CANDYSTICK LOUNGE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on February 8, 1983 in Miami, Florida.
APPEARANCES
For Petitioner: Janice G. Scott, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Lane Abraham, Esquire
200 South East First Street, Suite 800 Miami, Florida 33131
ISSUE
Whether the respondent's alcoholic beverage license should be disciplined on charges of violating Chapters 561 and 562, Fla. Stat. (1981), the Florida Beverage Law.
BACKGROUND
By Notice to Show Cause, dated August 23, 1982, petitioner, Division of Alcoholic Beverages and Tobacco ("DABT") charged respondent, Harry's Discotheque, Inc., d/b/a Candystick Lounge ("respondent") with multiple violations of Chapters 561 and 562, Fla. Stat. (1981). Specifically, DABT charged that respondent's employees repeatedly solicited the purchase of drinks on the licensed premises, possessed cocaine on the licensed premises, offered to commit prostitution, engaged in lewd and lascivious behavior, kept on the premises a bottle containing a liquid other than that staged on the bottle's label, and finally, that respondent allowed certain persons to loiter on the premises for the purpose of soliciting drinks.
Respondent requested a Section 120.57(1) hearing on the charges and, on October 27, 1982, this case was forwarded to the Division of Administrative
Hearings for assignment of a hearing officer. Hearing was set for December 2-3, 1982, then continued and reset for February 8, 1983. DABT also moved to amend its original charges, which motion was granted on January 10, 1983.
At hearing, DABT presented the testimony of Beverage Officers Kelvin Davis, Jose Iturralde, Louis Terminello, Juanita Loud, Riley Breedlove, Carol Houston and Captain John Harris. Anthony Merola testified on behalf of the respondent. In their Prehearing Stipulation, the parties also agreed to several undisputed facts.
The parties filed post-hearing proposed findings of fact and conclusions of law by February 25, 1983. No transcript of hearing has been filed.
Based on the evidence presented, the following facts are determined: FINDINGS OF FACT
Respondent holds alcoholic beverage license no. 23-1493, Series 4-COP, authorizing it to sell alcoholic beverages at its business known as the Candystick Lounge ("the licensed premises") at 13505 Biscayne Boulevard, North Miami Beach, Florida. The licensed premises includes a bar, lounge, and stage, where female dancers provide nude and semi-nude entertainment.
I.
On 35 separate occasions during March 26, 27, April 2, and 18, 1982, eight employees of respondent asked five different undercover beverage officers to purchase them drinks on the licensed premises.
On March 26, 1982, a female dancer named "Sophia" (Carmen Jones), employed by respondent, approached Beverage Officer Kelvin Davis on the licensed premises and requested that he buy her a drink. Sophia ordered a split of champagne, approximately six to eight ounces, which was served by the bartender, (later identified as Anthony Merola) in a small bottle. Officer Davis paid him
$10. That same evening a female dancer named "Donna" approached Beverage Officer D. Chastain on the licensed premises and asked him to buy her a drink. Donna ordered a split of champagne from the bartender for which Chastain paid
$10. Shortly thereafter, Donna asked him to buy her a larger and more expensive bottle of champagne, offering to accompany him to a booth in the rear. After he declined, Donna asked him to buy her another split. He refused, then both he and Officer Davis left the licensed premises.
In the early morning hours of March 27, 1982 Beverage Officers Davis and Chastain returned to the licensed premises and sat at the bar; Beverage Officer Jose Iturralde entered and sat a table; Beverage Officers Louis Terminello and Juanita Loud sat at a booth. "Francina" (Francine Russell), a dancer employed by respondent, approached Officer Chastain and asked him, twice, to buy her a drink. Each time he agreed. She ordered a split of champagne from the bartender to whom Chastain paid $10 per bottle. That same morning a female dancer named "Nisee" (Denise Campbell), employed by respondent, approached Officer Davis and on two separate occasions, asked him to buy her a drink. He agreed. Each time she ordered and was served a split of champagne for which he paid $10. That same morning on the licensed premises, Francina asked Officer Chastain, and Nisee asked Officer Davis, to purchase both a larger bottle of champagne and another split; the officers refused.
Officer Iturralde, while seated at a table, was approached by a female dancer calling herself "Nadia" (Ruth Loman) who stated she was employed by respondent as a hostess. She asked him to buy her a split of champagne for $10. He agreed. Nadia, after finishing her first drink, asked him to buy her another. When he refused she left, explaining that she had to attend to other patrons. During this visit, Officer Iturralde was also approached by Sophia and Nisee who each asked him to buy them a drink. He refused.
Officers Terminello and Loud, who had seated themselves at a booth, were approached by Nisee. She asked Officer Terminello to buy her a drink of champagne for $10. He agreed. During the three-way conversation which ensued, Nisee brought up the subject of cocaine, asking both Officers Terminello and Loud if they had any. When the officers indicated they had none at the time, Nisee asked Officer Loud if she was "bi," and offered to swing with the two officers if they would provide her with cocaine. Based on the context of the questions, the officers' experience and working knowledge of slang terminology for sex, both officers interpreted Nisee's statements to be (and they are found to be) a question as to whether Officer Loud was bisexual and an offer to engage in sex with both officers in exchange for cocaine. 1/ The officers observed no management personnel on the licensed premises on March 26 or 27, 1982.
In the late evening hours of April 2, 1982, Officers Chastain and Davis reentered the licensed premises and sat at the bar. Officer Davis was then approached by respondent's female dancer, Nisee, who over a period of time asked him to buy her two drinks. He agreed, buying her two successive splits of champagne, for which he paid $10 each. Nisee also asked Officers Davis and Chastain to buy her a third drink, which both refused. Later that evening, Nisee asked Officer Davis to buy her a bottle of champagne and move to a booth in the back; he refused. He was also approached by "Donna" (Vellez Smith Barton), another dancer employed by respondent, who asked him to buy her a drink; he refused. On this occasion, as was the case on March 27, 1982, the beverage officers saw no management personnel on the licensed premises.
In the early morning hours of April 18, 1982, Officers Davis, Chastain, Iturralde, Terminello and R. Breedlove returned to the licensed premises. Upon entry, Officers Chastain and Davis sat at the bar where Officer Chastain was approached by "Jennifer" (Mae Bertell), an employee of respondent who sang, and, on occasion, served as a hostess. Jennifer asked him to buy her a drink, which he did. Later that evening both Officers Chastain and Davis were approached by respondent's employee, Francine, who asked them to buy her a drink, which they did. Officer Davis was approached on the licensed premises by respondent's employee Sophia, who asked him to buy her a drink. He agreed, paying $10 for a split of champagne.
Officer Iturralde had seated himself at a table. He was approached by Sophia, a female dancer employed by respondent. She asked him to buy her a drink which he did, paying $10 for a split of champagne. Later, he was also approached by Jennifer, who asked him to buy her a drink; he refused.
Officer Breedlove had seated himself at the bar, where he was approached by a female dancer employed by respondent who identified herself as "Trina" (Vellez Smith Barton) . On two occasions, she asked him to buy her a drink; he agreed. Each time, she ordered a split of champagne, for which Officer Breedlove paid $10. Later, she asked him to purchase her a third drink; he refused.
Officer Terminello had seated himself at a booth, where he was approached by Michelle Donenfeld, a female dancer employed by respondent. She asked him to buy a bottle of champagne. She explained that if he purchased a
$62 bottle of champagne, they would move to a back booth where, she said, she would "rub it longer" and take it out of his pants," referring to his penis. After he agreed, they moved to a back booth where the lighting was poor.
Michelle then began to rub his penis, exposed her breasts, and tried to unfasten his belt and reach into his pants. After extricating himself from this situation by making excuses to Ms. Donenfeld, he was approached by dancer Nisee, who asked him to buy her a drink, which he did. On this date, Ruth Block, respondent's manager, was present on the licensed premises.
At approximately 2:00 p.m., on April 18, 1983, Beverage Officers Loud, Terminello, and Houston, together with officers from the North Miami Beach Police Department, entered the licensed premises for the purpose of securing the premises and making certain arrests. The lights were turned up and the officers announced their presence. When the officers announced their presence, dancer Denise Campbell who was sitting with a patron, moved her hand from the table, down and back, in a throwing motion. Her hand opened as it swung back. Almost immediately after her hand opened, Officer Terminello who was standing behind her, felt something hit his leg. An immediate search of the vicinity of his legs and feet with a flashlight revealed a brown vial which was found to contain cocaine. This supports an inference that Ms. Campbell possessed the vial of cocaine that was found on the licensed premises.
II.
After announcing their presence, the officers searched the licensed premises. Several champagne bottles, identical to those served to respondent's employees described above, were found in a sink immediately behind and under the bar. At least one of these bottles contained water. The bartender, Anthony Merola, explained that the bottles were in the sink for washing prior to being placed in the storeroom. Washing was necessary to prevent insect infestation. This explanation is plausible and persuasive. Mr. Merolo's denial that he served champagne bottles containing water is also credible. No sample of the champagne allegedly served at the tables was taken. Neither is there evidence that the beverage officers noted anything unusual about the champagne they repeatedly purchased for dancers, such as the total absence of (champagne) bubbles. Moreover, at least on one occasion, a waitress furnished two champagne glasses with the champagne bottle, one for the dancer and one for the beverage officer. Such action is inconsistent with notion that water was being served in place of champagne.
III.
While the current owners of the licensed premises have not been subjected to penalties for violating the Beverage Law, prior owners have. Those owners were penalized for violating Section 562.131(1), Florida Statutes, regarding unlawful solicitation for sale of alcoholic beverages, and violating Section 796.07, Florida Statutes, regarding lewdness or prostitution. DABT records concerning these violations were available to the current owners when they took over the licensed premises.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1981).
The Division of Alcoholic Beverages and Tobacco is authorized to revoke or suspend an alcoholic beverage license when it is shown that the licensee, or its agent or employee, while on the licensed premises, violated any law of the state. Section 561.29(1)(a), Florida Statutes (1981) . Where the unlawful activity is committed by the licensee's agent or employee, the licensee's beverage license may be suspended or revoked upon a finding that the licensee was negligent in its supervision of the licensed premises. Lash, Inc.
v. State, Department of Business Regulation, 411 So.2d 276 (Fla. 3rd DCA 1982); Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962). Simple negligence is all that need be shown. Lash, Inc. v. State, Department of Business Regulation, supra.
DABT maintains that the following laws were violated on the licensed premises:
Section 562.131(1), which prohibits a licensee, its employees, servants, or entertainers, from begging or soliciting any customer or visitor to purchase a beverage, alcoholic or otherwise, for such employee, agent, servant, or entertainer;
Section 562.131(2), prohibiting a licensee or its employees from knowingly permitting any person to loiter on the licensed premises for the purpose of soliciting a customer to purchase a beverage;
Section 893.03 and 893.13(1), prohibiting the possession of cocaine, a controlled substance;
Section 796.07(3)(a), prohibiting the offering to engage in prostitution, meaning the giving or receiving of the body for sexual intercourse for hire (for for licentious sexual intercourse without hire);
Section 798.02, prohibiting open and gross lewdness and lascivious behavior; and
Section 562.061, prohibiting a licensee from knowingly keeping or storing on the premises any bottles containing liquid other than that stated on the label.
License revocation proceedings, such as this, are penal in nature.
The prosecuting agency must prove its charges by clear and convincing evidence-- by evidence as substantial as the consequences. See, Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2nd DCA 1966); Walker v. State, 322 So.2d 612 (Fla. 2nd DCA 1975); Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).
The charges contained in DABT's Notice to Show Cause, as amended, must be measured by these standards and are addressed separately below:
Count I: Solicitation to Purchase Alcoholic Beverages for Employees. The evidence demonstrates that, during a four day period, there were thirty-five separate violations of Section 562.131(1). These violations were open and flagrant, and occurred in a persistent and practiced manner. They justify an inference that respondent either condoned them, or allowed them to happen through its negligence or lack of diligence in supervising its employees and surveilling the premises. These violations, therefore, also constitute violations of Section 561.29(1)(a) and provide a basis for disciplining respondent's license.
Count II: Allowing Persons to Loiter on the Premises for the Purpose of Soliciting the Sale of Drinks. Since the named persons who were allegedly permitted to loiter on the premises were also employees of respondent, a violation of Section 562.131(2) has not been established. See, 215-22nd Street, Inc. v. Board of Business Regulation, Division of Beverage, 330 So.2d 821 (Fla. 1st DCA 1976). This charge must, therefore, be dismissed.
Count III: Possession of Cocaine by Denise Ann Campbell. The evidence establishes that Denise Campbell violated Section 893.13(1) by possessing a vial of cocaine on the licensed premises. This was the only drug violation alleged or shown by DABT. One isolated instance will not suffice. To establish a licensee's negligence, the violation must be recurring and persistent. Thus, a violation of Section 561.29(1)(a) has not been established and this charge must be dismissed.
Count IV: Offer to Commit an Act of Prostitution. DABT charges that Denise Campbell and Michelle Donenfeld offered to commit acts of prostitution, on two separate occasions, in violation of Section 796.07(3)(a). While Ms. Campbell's offer to Officer Terminello constitutes an offer to commit an act of prostitution, Ms. Donenfeld's does not. See, 796.07(1)(a) Fla. Stat. (1981). Since only one instance of an offering to commit prostitution has been shown, this must be viewed as an isolated violation--not a recurring or persistent one. Neither is there evidence that respondent, through its managers, were aware of Ms. Campbell's unlawful conduct. Accordingly, a violation of Section 561.29(1)(a) has not been shown and this charge must he dismissed.
Count V: Open and Gross Lewd and Lascivious Behavior. The evidence establishes that Michelle Donenfeld, by her actions toward Officer Terminello, violated Section 798.02. See, State v. Bales, 343 So.2d 9 (Fla. 1977). This, however, has not been shown to be other than a single isolated instance. (Neither has it been shown that respondent was aware of it). No recurring or persistent pattern of violations of this nature having been shown, a violation of Section 561.29(1)(a) has not been established and this charge must be dismissed.
Count VI: Keeping a Bottle on the Premises Containing a Liquid Other Than That Stated on the Label. A champagne bottle found in a sink on the premises contained water because it was being washed. Such conduct cannot reasonably be construed as falling within the proscription of Section 562.061, so this charge, too, must be dismissed.
Penalty. Solicitation of the sale of alcoholic beverages to employees was a persistent and recurring activity on the premises. Considered in its totality, such conduct amounts to a flagrant disregard of the Beverage Law and the duties of a beverage licensee. No extenuating or mitigating evidence was presented. Revocation of respondent's license is, therefore, warranted.
The parties' proposed findings of fact which are included herein are adopted; otherwise they are rejected as unsupported by the evidence or unnecessary to resolving the issues presented.
Based on the foregoing, it is RECOMMENDED
That respondent's alcoholic beverage license be revoked for multiple violations of the Beverage Law.
DONE and RECOMMENDED this 25th day of April, 1983 in Tallahassee, Florida.
R. L. CALEEN, JR. Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1983.
ENDNOTE
1/ See Webster's New Collegiate Dictionary (1977) in which "swing" is defined as "to engage freely in sex" [see p. 1178] and "bi" is shown as "bi/bi/n or adj: BISEXUAL" [see p. 106].
COPIES FURNISHED:
Janice G. Scott, Esquire Department of Business
Regulation
725 South Bronough Street Tallahassee, Florida 32301
Lane Abraham, Esquire
200 South East First Street, Suite 800 Miami, Florida 33131
Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO
DIVISION OF ALCOHOLIC BEVERAGES, AND TOBACCO,
Petitioner,
vs. DABT NO. 34526-A&C
DOAH NO. 82-2917
HARRY'S DISCOTHEQUE, INC., d/b/a CANDYSTICK LOUNGE,
Respondent.
/
FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on February 8, 1983 in Miami, Florida.
APPEARANCES
For Petitioner: Janice G. Scott, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Lane Abraham, Esquire
200 South East First Street, Suite 800 Miami, Florida 33131
ISSUE
Whether the Respondent's alcoholic beverage license should be disciplined on charges of violating Chapters 561 and 562, Fla. Stat. (1981), the Florida Beverage Law.
BACKGROUND
By Notice to Show Cause, dated August 23, 1982, petitioner, Division of Alcoholic Beverages and Tobacco ("DABT") charged Respondent, Harry's Discotheque, Inc., d/b/a Candystick Lounge ("Respondent") with multiple violations of Chapter 561 and 562, Fla. Stat. (1981). Specifically, DABT charged that Respondent's employees repeatedly solicited the purchase of drinks on the licensed premises, possessed cocaine on the licensed premises, offered to
commit prostitution, engaged in lewd and lascivious behavior, kept on the premises a bottle containing a liquid other than that stated on the bottle's label, and finally, the Respondent allowed certain persons to loiter on the premises for the purpose of soliciting drinks.
Respondent requested a Section 120.57(1) hearing on the charges and, on October 27, 1982, this case was forwarded to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was sets for December 2- 3, 1982, then continued and reset for February 8, 1983. DABT also moved to amend its original charges, which motion was granted on January 10, 1983.
At hearing, DABT presented the testimony of Beverage Officers Kelvin Davis, Jose Iturralde, Louis Terminello, Juanita Loud, Riley Breedlove, Carol Houston and Captain John Harris. Anthony Merola Testified on behalf of the Respondent. In their Prehearing Stipulation, the parties also agreed to several undisputed facts.
The parties filed post-hearing proposed findings of fact and conclusions of law by February 25, 1983. No transcript of hearing has been filed. DABT received the Hearing Officer's Recommended Order on April 26, 1983. The Respondent filed Notice of Exceptions on May 10, 1983.
Based on the evidence presented, the following facts are determined: FINDINGS OF FACT
Respondent holds alcoholic beverage license no. 23-1493, Series 4-COP, authorizing it to sell alcoholic beverages at its business known as the Candystick Lounge ("the licensed premises") at 13505 Biscayne Boulevard, North Miami Beach, Florida. The licensed premises includes a bar, lounge, and stage, where female dancers provide nude and semi-nude entertainment.
On 35 separate occasions during March 26, 27, April 2, and 18, 1982, eight employees of Respondent asked five different undercover beverage officers to purchase them drinks on the licensed premises.
On March 26, 1982, a female dancer named "Sophia" (Carmen Jones), employed by Respondent, approached Beverage Officer Kelvin Davis on the licensed premises and requested that he buy her a drink. Sophia ordered a split of champagne, approximately six to eight ounces, which was served by the bartender, (later identified as Anthony Merola), in a small bottle. Officer Davis paid him
$10. That same evening a female dancer named "Donna" approached Beverage Officer D. Chastain on the licensed premises and asked him to buy her a drink. Donna ordered a split of champagne from the bartender for which Chastain paid
$10. Shortly thereafter, Donna asked him to buy her a larger and more expensive bottle of champagne, offering to accompany him to a booth in the rear. After he declined, Donna asked him to buy her another split. He refused, then both he and Officer Davis left the premises.
In the early morning hours of March 27, 1982 Beverage Officers Davis and Chastain returned to the licensed premises and sat at the bar; Beverage Officer Jose Iturralde entered and sat at a table; Beverage Officers Louis Terminello and Juanita Loud sat at a booth. "Francine" (Francine Russell) a dancer employed by Respondent, approached Officer Chastain and asked him, twice, to buy her a drink. Each time he agreed. She ordered a split of champagne from the bartender to whom Chastain paid $10 per bottle. That same morning a female dancer named "Nisee" (Denise Campbell), employed by Respondent, approached
Officer Davis and on two separate occasions asked him to buy her a drink. He agreed. Each time she ordered and was served a split of champagne for which he paid $10. That same morning on the licensed premises, Francina asked Officer Chastain, and Nisee asked Officer Davis, to purchase both a larger bottle of champagne and another split; the officers refused.
Officer Iturralde, while seated at a table, was approached by a female dancer calling herself "Nadia" (Ruth Loman) who stated she was employed by Respondent as a hostess. She asked him to buy her a split of champagne for $10. He agreed. Nadia, after finishing her first drink, asked him to buy her another. When he refused she left, explaining that she had to attend to other patrons. During this visit, Officer Iturralde was also approached by Sophia and Nisee who asked him to buy them a drink. He refused.
Officers Terminello and Loud, who had seated themselves at a booth, were approached by Nisee. She asked Officer Terminello to buy her a drink of champagne for $10. He agreed. During the three-way conversation which ensued, Nisee brought up the subject of cocaine, asking both Officers Terminello and Loud if they had any. Then the officers indicated they had none at the time, Nisee asked Officer Loud if she was "bi," and offered to "swing" with the two officers if they would provide her with cocaine. Based on the context of the questions, the officers' experience and working knowledge of slang terminology for sex, both officers interpreted Nisee's statements to be (and they are found to be) a question as to whether Officer Loud was bisexual and an offer to engage in sex with both officers in exchange for cocaine. 1/ The officers observed no management personnel on the licensed premises on March 26 or 27, 1982.
In the late evening hours of April 2, 1982, Officers Chastain and Davis reentered the licensed premises and sat at the bar. Officer Davis was then approached by Respondent's female dancer, Nisee, who over a period of time asked him to buy her two drinks. He agreed, buying her two successive splits of champagne, for which he paid $10 each. Nisee also asked Officers Davis and Chastain to buy her a third drink, which both refused. Later that evening, Nisee asked Officer Davis to buy her a bottle of champagne and move up to a booth in the back; he refused. He was also approached by "Donna" (Vellez Smith Barton), another dancer employed by Respondent, who asked him to buy her a drink; he refused. On this occasion, as was the case on March 27, 1982, the beverage officers saw no management personnel on the licensed premises.
In the early morning hours of April 18, 1982, Officers Davis, Chastain, Iturralde, Terminello and R. Breedlove returned to the licensed premises. Upon entry, Officers Chastain and Davis sat at the bar where Officer Chastain was approached by "Jennifer" (Mae Bertell), an employee of Respondent who sang, and, on occasion, served as a hostess. Jennifer asked him to buy her a drink, which he did. Later that evening both Officers Chastain and Davis were approached by Respondent's employee, Francine, who asked them to buy her a drink, which they did. Officer Davis was approached on the licensed premises by Respondent's employee Sophia, who asked him to buy her a drink. He agreed, paying $10 for a split of champagne.
Officer Iturralde had seated himself at a table. He was approached by Sophia, a female dancer employed by Respondent. She asked him to buy her a drink which he did, paying $10 for a split of champagne. Later, he was also approached by Jennifer, who asked him to buy her a drink, he refused.
Officer Breedlove had seated himself at the bar, where he was approached by a female dancer employed by Respondent who identified herself as
"Trina" (Vellez Smith Barton). On two occasions, she asked him to buy her a drink; he agreed. Each time, she ordered a split of champagne, for which Officer Breedlove paid $10. Later, she asked him to purchase her a third drink; he refused.
Officer Terminello had seated himself at a booth, where he was approached by Michelle Donenfeld, a female dancer employed by Respondent. She asked him to buy a bottle of champagne. She explained that if he purchased a
$62 bottle of champagne, they would move to a back booth where, she said, she would "rub it longer" and "take it out of his pants," referring to his penis. After he agreed, they moved to a back booth where the lighting was poor.
Michele then began to rub his penis, exposed her breasts, and tried to unfasten his belt and reach into his pants. After extricating himself from this situation by making excuses to Ms. Donenfeld, he was approached by dancer Nisee, who asked him to buy her a drink, which he did. On this date, Ruth Block, Respondent's manager, was present on the licensed premises.
At approximately 2:00 p.m., on April 18, 1983, Beverage Officers Loud, Terminello, and Houston, together with officers from the North Miami Beach Police Department, entered the licensed premises for the purpose of securing the premises and making certain arrests. The lights were turned up and the officers announced their presence; Dancer Denise Campbell, who was sitting with a patron, moved her hand from the table, down and back, in a throwing motion. Her hand opened as it swung back. Almost immediately after her hand opened, Officer Terminello who was standing behind her, felt something hit his leg. An immediate search of the vicinity of his legs and feet with a flashlight revealed a brown vial which was found to contain cocaine. This supports an inference that Ms. Campbell possessed the vial of cocaine that was found on the licensed premises.
II
After announcing their presence, the officers searched the licensed premises. Several champagne bottles, identical to those served to Respondent's employees described above, were found in a sink immediately behind and under the bar. At least one of these bottles contained water. The bartender, Anthony Merola, explained that the bottles were in the sink for washing prior to being placed in the storeroom. Washing was necessary to prevent insect infestation. This explanation is plausible and persuasive. Mr. Merolo's denial that he served champagne bottles containing water is also credible. No sample of the champagne allegedly served at the tables was taken. Neither is there evidence that the beverage officers noted anything unusual about the champagne they repeatedly purchased for dancers, such as the total absence of (champagne) bubbles. Moreover, at least on one occasion, a waitress furnished too champagne glasses with the champagne bottle, one for the dancer and one for the beverage officer. Such action is inconsistent with the notion that water was being served in place of champagne.
III
While the current owners of the licensed premises have not been subjected to penalties for violating the Beverage Law, prior owners have. Those owners were penalized for violating Section 562.131(1), Florida Statutes, regarding unlawful solicitation for sale of alcoholic beverages, and violating Section 796.07, Florida Statutes, regarding lewdness or prostitution. DABT records concerning these violations were available to the current owners when they took over the licensed premises.
RULING ON EXCEPTIONS
Respondent, in paragraph (1) of its exceptions filed herein, challenges the propriety of the findings of fact contained in paragraph 14 of the Recommended Order. However, Respondent makes no assertion that the finding was not supported by competent substantial evidence in the record. Therefore, Respondent's exception number one is not well founded and is denied.
In paragraph two of its Notice of Exceptions, Respondent challenges only paragraph 6 of the Conclusions of Law contained in the Recommended Order. Paragraph six deals exclusively with the appropriate penalty to be imposed upon Respondent. Since Rule 28-5.404, F.A.C., provides for the filing of exceptions only to the findings of fact and since the penalty to be imposed, so long as within the limits provided by the legislature, is an issue solely within the discretion of the agency, Respondent's exception number two is not well-founded and is denied.
CONCLUSIONS OF LAW
The Division of Alcoholic Beverages and Tobacco has jurisdiction over the parties and the subject matter of this proceeding. Chapter 561, 562 and Section 120.57(1), Florida Statutes (1981).
The Division of Alcoholic Beverages and Tobacco is authorized to revoke or suspend an alcoholic beverage license when it is shown that the licensee, or its agent or employee, while on the licensed premises, violated any law of the state. Section 561.29(1)(a), Florida Statutes (1981). Where the unlawful activity is committed by the licensee's agent or employee the licensee's beverage license may be suspended or revoked upon a finding that the licensee was negligent in its supervision of the licensed premises. Lash, Inc. v. State, Department of Business Regulation, 411 So.2d 276 (Fla. 3 DCA 1982); Pauline v. Lee, 147 So.2d 359 (Fla. 2 DCA 1962). Simple negligence is all that need be shown. Lash, Inc. v. State, Department of Business Regulation, supra.
The Notice to Show Cause charged that the following laws were violated on the licensed premises:
Section 562.131(1), which prohibits a licensee, its employees, servants, or entertainers, from begging or soliciting any customer or visitor to purchase a beverage, alcoholic or otherwise, for such employee, agent, servant, or entertainer;
Section 562.131(2), prohibiting a licensee or its employees from knowingly permitting any person to loiter on the licensed premises for the purpose of soliciting a customer to purchase a beverage;
Section 893.03 and 893.13(1), prohibiting the possession of cocaine, a controlled substance;
Section 796.07(3)(a), prohibiting the offering to engage in prostitution, meaning the giving or receiving of the body for sexual intercourse without hire:
Section 798.02, prohibiting open and gross lewdness and lascivious behavior; and
Section 562.061, prohibiting a licensee from knowingly keeping or storing on the premises any bottles containing liquid other than that stated on the label.
Count two of the Amended Notice to Show Cause will be dismissed since the evidence clearly established that each named female, alleged to have solicited drinks on the licensed premise, was an employee of Respondent. 215 - 22nd Street, Inc. v. Board of Business Regulation, Division of Beverage, 330 So.2d 821 (Fla. 1 DCA 1976).
Count six of the Amended Notice to Show Cause, which alleged that Respondent, through its employee, violated Section 562.061, Florida Statutes, will also be dismissed.
The remaining charges in the Amended Notice to Show Cause are addressed separately below:
Count I: Solicitation to Purchase Alcoholic Beverages for Employees. The evidence demonstrates that, during a four day period, there were thirty-five separate violations of Section 562.131(1). These violations were open and flagrant, and occurred in a persistent and practiced manner. They justify an inference that Respondent either condoned them, or allowed them to happen through its negligence or lack of diligence in supervising its employees and surveilling the premises. These violations, therefore, also constitute violations of Section 561.29(1)(a) and provide a basis for disciplining Respondent's license.
Count III: Possession of Cocaine by Denise Ann Campbell. The evidence establishes that Denise Campbell violated Section 893.13(1) by Possessing a vial of cocaine on the licensed premises.
Count IV: Offer to Commit an Act of Prostitution.
The evidence established that Denise Campbell offered to commit acts of prostitution in violation of Section 796.07(3)(a). However, Ms. Donenfeld's conduct did not constitute an offer to commit prostitution.
Count V: Open and Gross Lewd and Lascivious Behavior.
The evidence establishes that Michelle Donenfeld, by her actions toward Officer Terminello, violated Section 798.02. See, State v. Bales, 343 So.2d 9 (Fla. 1977).
The evidence established that on two separate occasions (not including drink solicitations) employee Campbell violated the law on the licensed premises, by possessing cocaine while at a table with a patron and by openly offering to commit prostitution. The evidence further showed that employee Donenfeld openly violated Section 798.02, Florida Statutes. Therefore, the
inference is justified that the Respondent's employees were violating the laws of Florida in a persistent manner and that such activity was allowed to happen through Respondent's negligence or lack of diligence in supervising its employees. Lash, Inc. v. State, Department of Business Regulation, supra and Pauline v. Lee, supra.
Penalty. Solicitation of the sale of alcoholic beverages by employees was a persistent and recurring activity on the premises condoned or allowed to happen through Respondent's negligence or lack of diligence. Considered in its totality, such conduct amounts to a flagrant disregard of the Beverage Law and the duties of a beverage licensee. No extenuating or mitigating evidence was presented. Revocation of Respondent's license on this basis alone is, therefore, warranted. However, there was also a pattern of various other open, unlawful activities described above which further demonstrate Respondent's flagrant disregard for its duties under the Beverage Law.
The parties' proposed findings of fact which are included herein are adopted; otherwise they are rejected as unsupported by the evidence or unnecessary to resolving the issues presented.
ORDER
Based on the foregoing, it is ORDERED:
Counts two and six of the Amended Notice to Show Cause be and the same are hereby dismissed; and
Respondent's alcoholic beverage license be and the same is hereby REVOKED for multiple violations of the Beverage Law.
DONE AND ORDERED this 9 day of May, 1983, in Tallahassee, Florida.
HOWARD M. RASMUSSEN, Director
Division of Alcoholic Beverages and Tobacco
725 South Bronough Street Tallahassee, Florida 32301
ENDNOTE
1/ See Webster's New Collegiate Dictionary (1977), in which "swing" is defined as "to engage freely in sex" [see p. 1178] and "bi" is shown as "bi/bi/n or adj: BISEXUAL" [see p. 106].
COPIES FURNISHED:
Janice G. Scott, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
R. L. Caleen, Jr., Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway
Tallahassee, Florida 32301
Lane Abraham, Esquire
200 South East First Street, Suite 800 Miami, Florida 33131
| Issue Date | Proceedings |
|---|---|
| Jun. 13, 1983 | Final Order filed. |
| Apr. 25, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 09, 1983 | Agency Final Order | |
| Apr. 25, 1983 | Recommended Order | Revoke license for multiple violations of beverage law due to solicitation of drinks by dancers. |
