STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1931

) CHARLOTTE COUNTY LODGE NO. 2153 ) BPOE, t/a ELKS CLUB NO. 2153, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before Marvin Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on September 13, 1983, in Ft. Myers, Florida.

APPEARANCES

For Petitioner: Janice G. Scott, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Robert M. Bader, Esquire

209 Conway Boulevard, N.E. Port Charlotte, Florida 33952

ISSUE AND BACKGROUND

This case concerns the issue of whether Respondent's alcoholic beverage license should be revoked, suspended, or otherwise disciplined for violations of Chapter 849, Florida Statutes, which prohibits gambling. At the formal hearing, the Division of Alcoholic Beverages and Tobacco called as witnesses Beverage Lieutenant Thomas Stout and Beverage Officer Stephen Tompkins. The Respondent called as witnesses Jack Bent, Wade Byington, Sam Fritz, Daniel Cronin, John Hengerle, Ward Hill, Earl Martel and Neal Mills. The Petitioner offered and had admitted seven exhibits and the Respondent offered and had admitted three exhibits. A drawing of the licensed premises as contained in the Division of Alcoholic Beverages official records was placed into evidence as Hearing Officer's Exhibit No. 1.

Counsel for the Petitioner and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. To the extent that these proposed findings and conclusions of law are inconsistent with the findings and conclusions herein they were considered by the Hearing Officer and rejected as being unsupported by the evidence or unnecessary to a resolution of this cause.

FINDINGS OF FACT

1. At all times material to this proceeding, Respondent held Beverage license No. 18-67, Series 11C issued to the licensed premises at 629 Tamiami Trail, N.W., Port Charlotte, Florida.

   
   

2. Elks Lodge No. 2153 is a local chapter of the National Elks Lodge. It is a fraternal organization having 2,994 members in the local lodge. The licensed premises at 629 Tamiami Trail, N.W., is the club facility where the members hold meetings and also socialize together.

   
   

3. The lodge building is a large building consisting of a lobby, lounge area with bar, kitchen, and large dining and meeting room. Additionally, there is a smaller room which is located behind the lounge area. This small room is called the "Stag Room" and is open to and used only by the local members of Elks Lodge No. 2153. No guests, wives, or nonmembers are allowed in the Stag Room.

   
   

4. The Stag Room contains a pool table area, card table area with several tables, a shuffleboard court, a bar, and an area of tables for just lounging. The bar is tended by a bartender.

   
   

5. The local lodge is governed by a Board of Governors which sets policy for the lodge and a Board of Trustees which is responsible for the financial matters and building and other physical assets of the lodge. The chief operating officer of the lodge is elected by the members and has the title of "Exalted Ruler." The manager of the club facility is hired by the Board of Governors.

   
   

6. On January 27, 1983, at approximately 11:30 a.m., Beverage Officer Tompkins, of the Ft. Myers District, visited the licensed premises of the Respondent. His purpose was to investigate a complaint that the lodge had sold kegs of beer to another club. After speaking with the manager of the club facility, Officer Tompkins made a routine inspection of the licensed premises.

   
   

7. As a part of his routine inspection, Officer Tompkins entered the Stag Room and first checked the bar area of that room. Behind the bar, he found a slip of paper (Petitioner's Exhibit 1) which reflected bets between unknown individuals on the Super Bowl game to be played within a few days between the Washington Redskins and the Miami Dolphins. The sheet was undated and unsigned and was laying in the open on a counter behind the bar.

   
   

8. After checking the bar area, Officer Tompkins proceeded to inspect the contents of a cabinet located between the pool area and the card playing area. In that cabinet, Officer Tompkins found several items which he seized as evidence.

   
   

9. In the top drawer of the cabinet, Officer Tompkins found three white pieces of paper, each appearing to be scoresheets for a game of some sort. On the first sheet (Petitioner's Exhibit 2-A) appears the first names of six individuals in columns with scores or running totals under each name. These totals consist of plus and minus numbers which after each round totaled zero. These numbers appear to represent amounts owed to and from each player and at the bottom of five of the columns is the entry "Pd." This sheet was used to keep track of winnings and losses in some type of game. No evidence was presented which identified the individuals named or the date the sheet was prepared.

10. The second sheet (Petitioner's Exhibit 2b) contains several paired columns titled "We" and "They" at the top of each pair. These columns contained numbers which appear to be scores in some type of game. Some of these numbers contain decimal points, such as "14.67" which appear to represent dollar amounts. The third sheet (Petitioner's Exhibit 2c) is similar to Petitioner's Exhibit 2b, but does not contain decimal numbers or numbers that appear to represent dollar amounts.

    
    

11. In that same drawer Officer Tompkins found three yellow envelopes with writing on the front of each envelope. The first envelope (Petitioner's Exhibit 3a) was empty and on the outside of the envelope was written "3 players." The second envelope (Petitioner's Exhibit 3b) also was empty and bears the notation "4 players." The third envelope (Petitioner's Exhibit 3c) bears the notation "tally sheets" and contained two sheets of paper that appear to be tally sheets for some type of game.

    
    

12. In the same cabinet, but not in the drawer, Officer Tompkins found two paper bags bearing the business name "Quick Print." (Petitioner's Exhibits 4a and 4b). Each bag contained several hundred blank tally sheets. These sheets are similar to tally sheets used in card games such as bridge. These sheets were not purchased by the Respondent.

    
    

13. Also in the same cabinet in Respondent's Stag Room, Officer Tompkins found a yellow folder, Petitioner's composite Exhibit No. 5, containing a typewritten rule book called "Eight Ball Tournament House Rules" dated August 23, 1982, with a notation that it was amended October 8, 1982. The rule book provides that "[e]xcept for the rules specified herein, the Official Book of Rules in the Stag Room will apply." The book further provides that the players' positions on the singles and doubles elimination sheets will be determined by lot. Also contained within the yellow folder, Petitioner's composite Exhibit No. 5, were original elimination sheets designed for tracking the players, drawn by lottery, through various levels of play in a pool tournament. These elimination sheets are titled "Elk's Lodge 2153 Pool Tourney." (See Petitioner's composite Exhibit No. 5).

    
    

14. In that same cabinet in the Stag Room of Respondent's licensed premises Officer Tompkins found a manila envelope containing Petitioner's Exhibit No. 6, a handwritten registration sheet titled Registration - 8 Ball Tournament 22 Jan 83 Doubles Fee: $3.00. This sheet contains four columns - two titled "Name" and two titled "Fee Paid." In the first column entitled Name are listed five names after which, in the Fee Paid column, is listed the amount of $3.00. This sheet further indicates that the listing was made as of 11 a.m. on 22 Jan 83 and that the money was refunded. Also found within that manila folder were "Guidelines for Coordinator on Day of Play." (See Petitioner's Exhibit No. 7). Those guidelines provide that if less than 12 players sign up for the tournament, the tournament will be cancelled and the money refunded. Those guidelines further provide that, using the registration sheets, names will be drawn by use of numbered pills and given a position on the elimination sheet. The guidelines provide for prizes for first and second place winners in the doubles and for first, second and split third place winners in the singles. While play is underway, the coordinator is to calculate prize money by arriving at the "kitty" with $2.00 per player for the 12 to 15 players, then deduct $3.00 for the coordinator's services. The balance of the kitty would be divided with

    45 percent going to the first place winner, 30 percent going to the second place winner, and 25 percent going to the third place winner to be split 50/50 between the two third place winners. A different method for calculating allocation of

    the kitty is provided for the doubles play. (Petitioner's Exhibit No. 7). Also contained within that folder found in the cabinet in the Stag Room of Respondent's licensed premises were copies of the original elimination sheets previously seen in Petitioner's composite Exhibit No. 5.

    
    

15. The above described guidelines were prepared for a proposed pool tournament which did not take place. Sometime in the fall of 1982, the officers of the Respondent club became aware that a pool tournament was being planned. Upon learning of this, the Exalted Ruler, the chief presiding officer, cancelled the pool tournament and instructed those persons who were planning the tournament that such an event could not be held in the lodge.

    
    

16. The Respondent has a policy against gambling on the lodge premises. Section 210 of the annotated statutes of the Grand Lodge of Elks prohibits gambling, in any and all forms, in any lodge room, club room or social parlor connected with a lodge. Failure to abide by a section of the annotated statutes can result in revocation of the local lodge's charter.

    
    

17. The officers of Respondent were not aware of any gambling taking place on the lodge premises and after receiving notice from Officer Tompkins that he suspected gambling was occurring, the Lodge published an article in its monthly newsletter reminding its members of their duty to not gamble and to abide by the annotated statutes of the lodge. Petitioner presented no evidence that gambling had actually been observed by anyone on the licensed premises. No gambling had been observed by the officers or trustees of the lodge.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this action.

    
    

19. Section 561.29, Florida Statutes, empowers the Division of Alcoholic Beverages and Tobacco to suspend, revoke or otherwise discipline a beverage license if the holder of that license is found to have committed one or more of the violations enumerated in that section.

    
    

20. The Respondent is charged with violating Section 561.29(1)(a), Florida Statutes, which provides:

    
    

    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:

       1. 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, of 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.

          
          

          The Notice to Show Cause charges and the Petitioner contends that the Respondent, through its agents, servants, or employees violated several specified provisions of Chapter 849, Florida Statutes, prohibiting gambling in the State of Florida.

          
          

21. Respondent is charged in the first count of the Notice to Show Cause with a violation of Florida Statute 849.25(1) (1981). That section provides:

    
    

    1. The term "bookmaking" means the act of taking or receiving any bet or wager upon the result of any trial or

       contest of skill, speed, power, or endur- ance of man or beast or between men, beasts, fowl, motor vehicles, or mechanical apparatus or upon the result of any chance, casualty, unknown, or contingent event whatsoever.

       
       

       Petitioner contends that the piece of paper containing the wager (Petitioner's Exhibit l) on the Washington Redskins/Miami Dolphin football game establishes a violation of this section by the Respondent.

       
       

22. The second count of the Notice to Show Cause charges the Respondent with a violation of Florida Statute 849.08 (1981) which provides:

    
    

    Whoever plays or engages in any game

    at cards, keno, roulette, faro or other game of chance, at any place, by any device whatever, for money or other thing of value, shall be guilty of a misdemeanor of the second degree, punishable as provided in s.775.082

    or s.775.083.

    
    

    The bases for this particular charge were the three sheets of paper (Petitioner's Exhibits 2a through 2c) which contained tallies or scores from some type of game.

23. Counts three and four of the Notice to Show Cause charge Respondent with a violation of Section 845.05, Florida Statutes (1981). That section provides:

    
    

    If any of the implements, devices

    or apparatus commonly used in games of chance in gambling houses or by gamblers, are found in any house, room, booth, shelter or other place it shall be

    prima facie evidence that the said house, room, booth, shelter or other place where the same are found is kept for the purpose of gambling.

    
    

    Petitioner contends that the three yellow envelopes (Petitioner's Exhibits 3a through 3c) and the tally sheets found in the Quick Print bags (Petitioner's Exhibits 4a and 4b) are implements used by gamblers and thus establish a violation of Section 849.05, Florida Statutes (1981).

    
    

24. Counts five and seven of the Notice to Show Cause relate to the registration form and rule book for the pool tournament (Petitioner's Exhibits 5, 6, and 7) and charge that these materials establish a violation of Sections

    1. and 849.09(1)(k), Florida Statutes (1981) which provide:

       
       

       If any holder of a license to operate a billiard or pool table

       shall permit any person to play billiards or pool or any other game for money, or any other thing of value, upon such tables, he shall be deemed guilty of a

       misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

       1. It shall be unlawful for any person in this state to:

    (k) Have in his possession any so-called run down sheets, tally sheets, or other papers, records, instruments, or para- phernalia designed for use, either directly or indirectly, in, or in connection with, the violation of the laws of this state prohibiting lotteries and gambling.

    
    

25. Count six of the Notice to Show Cause charges that the tally sheets found on the premises establish a violation of Sections 849.10(1) and (2), Florida Statutes (1981) which provide:

    
    

    1. It is unlawful for any person, in any house, office, shop or building in this state to write, typewrite, print, or publish any lottery ticket or advertisement, circular, bill, poster, pamphlet, list or schedule, announcement or notice, of lottery prizes or drawings or any other matter or thing in any way connected with any lottery drawing, scheme or device, or to set up any type or plate for any such purpose, to be used or distributed in this state, or to be sent out

       of this state.

    2. It is unlawful for the owner or lessee of any such house, shop or building knowingly to permit the printing, typewriting, writing or publishing therein of any lottery ticket or advertisement, circular, bill, poster, pamphlet, list schedule, announcement or notice of lottery prizes or drawings, or any other matter or thing in any way connected with any lottery drawing, scheme or device, or knowingly to permit therein the setting

       up of any type or plate for any such purpose to be used or distributed in this state, or to be sent out of the state.

       
       

26. The last and eighth count of the Notice to Show Cause charges Respondent with violating Section 849.01, Florida Statutes (1981) which provides:

    
    

    Whoever by himself, his servant, clerk

    or agent, or in any other manner has, keeps, exercises or maintains a gaming table or room, or gaming implements or apparatus, or house, booth, tent, shelter, or other place for the purpose of gaming or gambling or in any place of which he may directly or

    indirectly have charge, control or management, either exclusively or with others, procures, suffers or permits any person to play for money or other valuable thing at any game whatever, whether heretofore prohibited or not, shall be guilty of a felony of the

    third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

    
    

27. Permitting gambling on a licensed premises in violation of Florida law can clearly serve as a grounds for revocation or other discipline of a beverage license. Glynn v. Roberson, 58 So.2d 676 (Fla. 1952). In order to discipline Respondent's license, the Division of Alcoholic Beverages and Tobacco must prove the Respondent was culpably responsible for the violations alleged; that it is guilty either of intentional wrongdoing, or of condoning wrongdoing or failing to exercise due diligence in supervising and maintaining surveillance over the licensed premises. See, e.g., Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980); Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962); Golden Dolphin II v. State of Florida, Division of Alcoholic Beverages and Tobacco, 403 So.2d 1372 (Fla. 5th DCA 1981); G. & B. of Jacksonville, Inc. v. State, 371 So.2d 137 (Fla. 1st DCA 1979).

    
    

28. In the instant case, the only evidence presented by Petitioner to establish violations of Chapter 849 were the items seized by Officer Tompkins as described above. It was not established that the yellow envelopes (Petitioner's Exhibits 3a through 3c), the tally sheets, (Petitioner's Exhibits 4a through 4b) or the three sheets of paper (Petitioner's Exhibits 2a through 2c) were actually used for gambling or were implements used by gamblers. Therefore, no violation as alleged in Counts 2, 3, 4 or 8 as to those items was proven.

29. The evidence also failed to establish a violation of Florida Statute 849.10(1) and (2) (1981) as alleged in Count 6 of the Notice to Show Cause. Section 849.10(1) and (2) prohibit a person from printing or preparing or allowing someone else to print or prepare on their premises any lottery ticket, schedule, list, or other type document used in or connected with a lottery drawing, scheme or device. The tally sheets on which this charge is based are almost identical to those used in keeping score in bridge and other card games. They were not purchased by the Respondent and there was no evidence that these sheets were printed or prepared on the licensed premises. The evidence failed to establish that these materials were used for any illegal gambling purpose as prohibited by Section 849.10(1) and (2), Florida Statutes (1981).

    
    

30. The note relating to the football wager (Petitioner's Exhibit 1) and the materials and rule book for the pool game (see Petitioner's Exhibits 5, 6, and 7) are items which relate to gambling activities. However, the evidence showed that the officers of the lodge terminated the preparation for the pool tournament immediately after they learned about it. No such pool tournament took place. The note of the football wager was found on the counter behind the bar in the Stag Room. The parties named in the note were not identified and the date of preparation was not established. There was no evidence that the officers, trustees, or employees of the Respondent were aware that such a wager had been made or that the wager was made on the licensed premises. The evidence therefore failed to establish any culpability on the part of Respondent for those violations alleged in counts 1, 4, 6, 7 and 8 of the Notice to Show Cause.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED:

That the Respondent be found not guilty of the charges alleged in the Notice to Show Cause and that such charges be dismissed.

DONE and ORDERED this 27th day of October 1983, in Tallahassee, Florida.

MARVIN E. CHAVIS

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 27th day of October, 1981.

COPIES FURNISHED:

Janice G. Scott, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Robert M. Bader, Esquire

209 Conway Boulevard, N.E. Port Charlotte, Florida 33952

Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 83-001931

Orders for Case No: 83-001931