vs. ) Case No. 97-1421
A hearing was held in this case in Tampa, Florida, on June 26, 1997, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.
For Petitioner: Thomas A. Klein, Esquire
For Respondent: Joseph L. Diaz, Esquire
The issue for consideration in this case is whether Respondent’s alcoholic beverage license Number 39-01036, Series 4-COP, for the premises located in the 900 block of Franklin Street in Tampa, Florida, should be disciplined in some manner because of the matters alleged in the Notice to Show Cause
entered herein.
By a Notice to Show Cause entered in this matter on February 13, 1997, the Department of Business and Professional Regulation’s Division of Alcoholic Beverages and Tobacco (DABT) required the Respondent herein, Bay Entertainment, Inc., n/k/a Freedom Rings Entertainment, Inc., doing business as Solar, to show cause why its alcoholic beverage license for the operation at 913 Franklin Street in Tampa should not be suspended or
revoked, or a civil penalty be imposed, because of the misconduct alleged in the twelve Counts contained therein. Thereafter, on February 26, 1997, Solar, through its president and counsel, requested formal hearing, and this hearing ensued.
At the hearing, DABT presented the testimony of its Special Agents (S/A) Elaine J. Paven and Ashely Murray, and of its District Supervisor, Captain Bruce Ashley. It also introduced DABT Exhibits 1 and Composite 2. Respondent presented the testimony of Jeffry J. Weinmuller, bartender and manager; Donald
L. Bentz, an employee of the Tampa AIDS Network; Dennis K. Fleming, an employee of Tampa Electric Company and former bartender at Solar; Steven B. Stamberger, medical case manager and vocational counselor, and former security employee at Solar; Diane M. Smith, owner and operator of a professional dance group; and Steven A. J. Engerer, staff engineer at GTE Telephone Operations and owner/operator of Solar.
undersigned on July 17, 1997. By letter dated July 7, 1997, with copy to counsel for Petitioner, counsel for the Respondent advised the undersigned he had ordered a transcript on July 2, 1997, and that the court reporter had indicated it would take ten working days to deliver the transcript. Counsel was “... [hoping] you will extend the previous deadline of July 14, 1997, within which to file the proposed Findings of Fact and Legal Arguments in this matter.” Thereafter, on July 30, 1997, counsel for Petitioner submitted his Proposed Recommended Order. Counsel for Respondent submitted his post-hearing proposal on August 6, 1997. Both submittals have been carefully considered in the preparation of this Recommended Order.
At all times pertinent to the issues herein the Petitioner, DABT, was the state agency responsible for the issue of alcoholic beverages licenses in Florida and the regulation of the sale and consumption of alcoholic beverages in this state. Respondent, Bay Entertainment, Inc., now known as Freedom Rings Entertainment, Inc., operated a night club, Solar, in the 900 block of Franklin Street in Tampa. There is some disagreement as to whether the facility was located at 911 Franklin Street or at 913 Franklin Street. The confusion is irrelevant to the issues for consideration since there is no indication a different club was operating at the second location, and there is no question regarding the identity or the licensure of the facility where the indicated misconduct was alleged to have taken place. The
operation was licensed by the Petitioner under alcoholic beverage license number 39-01036, 4-COP.
DABT S/A Elaine Paven first went to Solar on
December 13, 1996 at approximately 11:55 p.m.. At the time, she was accompanied by S/A Murray and a confidential source. After paying the cover charge to the doorman, the party was directed to the second floor of the facility where the bar was located. From that location, they could look down to the first floor where another bar and the dance area were located.
When Paven and her party went to the bar, she observed Tiffany Middlesexx, a transvestite and known narcotics user, sitting on the bar against the wall. Several male dancers, either wearing only a G-string or nude with a towel over their privates were performing. Paven and Murray went up to Middlesexx and asked to buy cocaine. Middlesexx asked them how much they wanted, and Paven gave the confidential source twenty dollars to buy some. The source gave the money to Middlesexx who, in return, gave the source a white powder which, in turn, was delivered by the source to Paven.
All during this transaction, employees of the facility were routinely working in the immediate area. Other patrons appeared to be buying from Middlesexx as well, though Paven drew this conclusion only from her observation of individuals who approached Middlesexx as her source did. Paven has no direct knowledge of whether cocaine or any other proscribed drug was transferred from Middlesexx to the other patrons or whether money
was transferred. In addition, however, as Paven and her party were leaving the club that night, she observed another known cocaine dealer, not further identified, enter the club.
Paven next went to Solar on December 21, 1996. Tiffany Middlesexx was again sitting on the bar as before. Paven approached Middlesexx and asked for cocaine. In response, Middlesexx asked how much Paven wanted, and Paven transferred twenty dollars to Middlesexx. With that, Middlesexx took a packet of white powder out of the purse he/she was carrying and gave it to Paven. Paven saw several other similar transactions by Middlesexx that evening, during which Solar employees were present and could have observed them, and at no time did any club employee attempt to interfere with or prevent the purchases.
That same evening, up on the second floor of the bar, Paven overheard a conversation between two other patrons who were discussing obtaining Ecstasy, also a proscribed narcotic. In addition, she observed patrons exiting the rest rooms snuffing and rubbing their noses which, to her, based on her training and experience, was indicative of drug use.
Paven next went to the club on the evening of
January 10, 1997, arriving just before 10:00 p.m. and staying until after midnight. During that period, however, she left for a short while and returned. Sometime that evening, during a conversation with Dennis, a bartender on the second floor, he told her that the club took a liberal and permissive approach toward drugs, and that the owner usually stayed on the first
floor.
Paven also went to the first floor that evening and, while in the restroom, notwithstanding signs posted prohibiting more than one person in a stall at a time, observed patrons go into the stalls in groups, and heard snuffing sounds coming from them which to her, under the circumstances, indicated the use of narcotics, usually cocaine. She did not observe and use however, nor did she confiscate for testing any of the substances involved.
On her return to the second floor that evening,
Ms. Paven met with another patron, identified as Darren, who spoke in general of the use of narcotics in clubs. She recalls no specific reference to the use of narcotics at Solar, however. Before she left the club that night, in another conversation with Dennis, the bartender, she mentioned she was going to get “party favors,” and he used the word, “stuff.” Both, in the vernacular of the drug milieu, relate to narcotics.
That same night, though early in the morning of January 11, 1997, Paven additionally saw Tempo, also a
transvestite male and a known cocaine dealer, on the second floor of the club. Another transvestite male, Gilda, was also there, at the bar, with Tony, who identified himself as an off-duty employee there, at the time, as a patron. Paven approached Tempo and offered him/her $20.00 for which, in return, she received a plastic bag of a substance later identified as cocaine. Dennis, the bartender, was standing behind the bar right there and, in
Paven’s opinion, could not have failed to observe the transaction occur. Tony was, in fact, not an employee. He had been employed at the club as a bar back before the club opened for business but was injured within the first few minutes on the job and never returned to work.
Agent Paven again went to the club at 10:45 p.m. on January 17, 1997, but left shortly after arriving and did not return until early on the morning of January 18, 1997. At that time Dennis was on duty as bartender and a group of individuals, known to Paven as drug dealers, including Tempo, Tony, and Brittany, were also present. At approximately 1:15 a.m. that morning, while up on the second floor, Paven was approached by Tony who told her he was leaving and offered to get her “something” before he left. Paven gave Tony $20.00, after which he went over to a group at the end of the bar and immediately came back with a bag of a powdered substance which he gave to her. He then asked her to save him a “bump,” which, in the drug culture, means a hit of cocaine.
That same evening, Paven observed three male dancers performing down on the first floor. Two of these were nude. As she watched, she saw patrons approach the dancers and give them tips to be allowed to fondle their private parts. Dennis came downstairs while this was going on, jumped on the bar, and removed his shirt, and lowered his pants to reveal his buttocks and, presumably, his genitals, to the patrons. Dennis admits to climbing on the bar, removing his shirt, and displaying his
buttocks, but denies revealing his genitals.
Paven also observed some of the dancers leave the stage and approach patrons who would then touch the dancers’ genitals. Galiano, a known cocaine user, was there that night, going back and forth from Tempo to Brittany, and into a back room reserved for employees. Paven observed her at the time, snuffing and rubbing her nose, though she did not observe any direct use of any substance. Later that evening, in a discussion with Paven at the bar on the second floor, Galiano denied having any cocaine to sell but offered Paven a line of cocaine if she would come downstairs to the restroom. When Paven went downstairs with Galiano, she was given the line of substance, thereafter pretending to use it but in reality not doing so. While on the first floor, Paven asked Tempo if she had any coke. In response, Tampo said she was out, but had an order for more in and was waiting for delivery.
On January 25, 1997, Paven was in Solar looking for Tiffany Middlesexx. Tony approached her and asked if she wanted any cocaine. Paven said she did and gave Tony $20.00. Approximately five minutes later, Tony came back and gave her a bag with a substance in it which was purported to be cocaine. He then suggested he and Paven go somewhere for a “bump.” Taking Paven upstairs, Tony then poured some of the substance out onto the back of her hand for her to snort it. He did the same for himself and actually ingested it, while Paven dumped hers out.
That same night Tony told Paven not to go to a second
bar mentioned because a raid was planned. Also the same night, Tiffany Middlesexx and Tempo were present at the club, as was the club’s chief of security, Tim, who was known to Paven as a drug dealer. Paven also observed nudity by the dancers, and sexual fondling of the male dancers for tips by some patrons, and she heard discussions between patrons about getting cocaine from elsewhere, but she did not observe any transfers take place.
Agent Paven returned to the club on January 28, 1997, a slow night for business. She observed one of the male dancers dancing on top of the first floor bar and witnessed several instances where the dancer squatted in front of a patron who, it seemed to Paven, committed fallatio on him in front of other patrons. This was repeated with several patrons while Paven, as well as Agent Murray, who was also present, watched. Paven brought this to the bartender’s attention, but the bartender denied seeing anything untoward.
On February 1, 1997, at approximately 1:34 a.m., Paven again entered Solar and proceeded to the first floor bar area. Tiffany Middlesexx was again sitting in his/her regular spot on top of the bar, and Paven asked if he/she had any cocaine for sale. In response, Tiffany Middlesexx offered Paven three bags for $50.00 or single bags for $20.00 each. When Paven handed over $50.00, Middlesexx opened up his/her purse and took out three bags of cocaine which was transferred to Paven. All this time, another patron was waiting and made a purchase when Paven was through. Paven also observed several other identical
transactions take place with other patrons that same evening though she cannot say with certainty what substance was passed. Since the procedure was the same, it is likely the substance transferred to the other patrons was also cocaine, and it is so found. Middlesexx subsequently left the premises while Paven was still there.
On February 8, 1997, Paven went back to Solar, arriving at 12:45 a.m. She went to the first floor and again observed Tiffany Middlesexx sitting in the regular spot on the bar. Paven approached Middlesexx and asked for cocaine and subsequently gave Middlesexx two $20.00 bills, in return for which she received two bags of cocaine. At this time, other employees of the Respondent were present behind the bar, and in Paven’s opinion heard and observed the transaction. Paven also watched a white male buy four bags of apparent cocaine from Middlesexx from no more than five feet from where the transaction took place. After making his purchase, that same white male showed the bags he had purchased to his friends and the group departed.
Later that evening, on the second floor of the club, Paven purchased one zip-lock bag of what appeared to be cocaine from Tempo because Tempo did not want to deal on the first floor. Paven paid Tempo $20.00 for it.
At no time during any of the above mentioned visits did any of the Respondent’s employees or management try to stop the purchases. The only warnings Paven heard were to watch out for the police. Paven claims she didn’t see any signs prohibiting
drug activity in the club, nor did she observe club employees prohibit sales to other patrons. On any given night she was there, Paven would observe six or seven individuals on the premises who were known to her, from prior buys or sales, some of which took place within Solar, to be drug dealers.
The parties stipulated that the substances purchased by Paven from individuals inside the club was cocaine. While Paven denied seeing any signs prohibiting the use or sale of drugs in the club other than in the restroom, she admits there were some signs at the entry, but even then, she cannot be sure of what the signs there said. Another sign in the bathroom prohibited more than one person in a stall at the same time.
There is no doubt that the noise level in the club when the music was playing and the club was full was considerable. Club employees contend that it would have been impossible for them to hear any of the conversations between Paven and any of the individuals from whom she bought drugs because of it, because they even had to bend over the bar to hear patrons’ orders for drinks. However, Paven and Murray both insist they were able to hear and contend the bartenders, while possibly not able to hear the exact conversations taking place during the buys, could not have failed to observe what was going on. The noise certainly did not dissuade anyone from buying or selling. In addition, Paven observed security personnel hired by management passing through the club from time to time. These individuals would stop and talk to patrons and would attempt to prevent patrons from
jointly occupying the restroom stalls. This served to halt drug sales while the security officer was present, but the activity resumed when the officers left.
Most of the drug transactions which took place between Agent Paven and Middlesexx or Tempo were witnessed from three to four feet away by Agent Murray as well. Murray notes that whenever Paven tried to make a buy from Middlesexx, there was always someone in line before them, and Murray also observed what appeared to be drug purchases by other patrons from Middlesexx. Usually a bartender was in the immediate area of the purchase transaction. Murray cites, by way of exception, the incident on January 25, 1997, when Tony took Agent Paven to another area of the bar. Though Murray observed anywhere from six to seven drug dealers on the premises, known to her as such from prior investigations, at no time did she ever see an employee of the club, or a member of management, try to interfere with a transaction, nor did anyone ever state that such activity was illegal. It seemed as though the only concern expressed by anyone employed by the club related to the potential for the use of undercover police.
Murray also observed male dancers at the club engaged in conduct which, it appeared to her, was salacious and obscene. It appeared to her than some patrons committed actual acts of fellatio on the dancers who would squat on the bar or dance floor in front of them. On at least one occasion, Murray changed her location at the bar so as to be able better to see what was going
on. In her opinion, there was no doubt as to the nature of the activity.
Notwithstanding the allegations of both Paven and Murray regarding the obscene activity, Diane M. Smith, the owner of the dance group which performs at Solar, categorically denies that any such activity took place involving her employees. Normally, she claims, she was present whenever her dancers performed. At any given time, she had three dancers active. One was on the center podium, one on one of the bars, and one was on break. Her dancers would wear jeans for the first set and shorts, or possibly a T-back, for the second set. She adamantly asserts there was no nude dancing or lewd or lascivious conduct permitted. She would not permit it, and management knew that. Her dancers performed from approximately 11:30 p.m., until 2:00 a.m., and at all times, there were two chaperones present. She was also often present before and after the show, and she never saw any conduct as described by Paven or Murray. This relates to drug activity as well as activity regarding the dancers. In fact, she claims, management made it very clear that drug activity was not permitted in the club.
Jeffery Winemiller, who has a college degree and who attended medical school for two years before personal commitments brought him back to the Tampa area from California, was working at Solar as a bartender the night the Emergency Order of Suspension was entered. Mr. Winemiller has attended Responsible Vender training several times and is aware of how to check among
patrons for drug use and abuse. He usually worked on the first floor at the rectangular bar on Friday and Saturday nights, and occasionally on other nights as well.
Mr. Winemiller contends that while he worked at Solar, he never witnessed any drug activities or any oral sex being conducted on the premises. He claims there were signs at the front door and in the rest rooms warning against the use of drugs in addition to signs prohibiting entrance to persons under age and prohibiting more than one person in a restroom stall at any one time. Neither the men’s nor the women’s restroom had entry doors. Only the women’s restroom had doors on the stalls.
Tiffany Middlesexx is a known drag queen - a performer in his/her 50’s, who is very well known in the transvestite community. Whenever he/she comes into Solar, he/she would have an entourage of from three to six people with him/her.
Middlesexx would usually position himself/herself on the L-shaped bar on the first floor across from the dance podium on a space which was cleared for him/her. According to Winemiller, normally a bartender would not be working in that immediate location.
As Winemiller recalls, Friday nights are rather quiet until after midnight, when up to seven hundred people might be in the club. During the period from midnight to club closing, a bartender might serve several hundred drinks and would be too busy to note what any particular patron was doing. In addition, as he described it, the noise level was high, and he would not be able to overhear any patron conversations. Specifically,
Winemiller contends, he did not see Middlesexx or any of the other dealers described by Paven and Murray sell drugs in the bar, nor did anyone ever tell him anyone was selling drugs. As told to him, ownership policy on drugs was no tolerance. Any drug activity was to be reported to management or to security. By the same token, no lewd sexual activity was permitted either.
Mr. Winemille claims he does not know Tiffany Middlesexx, Tony, or Tempo to be drug dealers. He claims not to use drugs himself and professes not to know who does. As a result of this raid and the closing of the club, he is now out of a job. In addition, his loan of $35,000 to Mr. Engerer to start up the operation is in jeopardy, though Winemiller contends he is not concerned about this.
Donald Bentz, an employee of the Tampa AIDS Network has been in Solar on several occasions as a part of his work. He knows Mr. Engerer well and was a regular customer from May 1996, when the club opened, until it closed. During that period, he went there at least once a week and claims he never saw drug activity or lewd acts being carried on there.
Mr. Bentz goes to several gay-oriented clubs as a part of his job and has put on fund raising functions with some of them. Because of his organization’s non-profit status and the thrust of its activities, it is careful with whom it operates and carefully checks out any operation before becoming involved with it. Mr. Bentz knows Tiffany Middlesexx as a transgendered performer who is popular in the gay/transgender community.
On several of the occasions when he has been at Solar, Mr. Bents has seen signs permitting only one person at a time in the rest rooms and recalls seeing a sign stipulating no drugs allowed at the entrance. In addition, he has seen security personnel routinely checking for drugs. Though Bentz has heard rumors that Middlesexx deals drugs, he claims never to have seen it at Solar nor did he ever see anyone do or talk about illicit drugs on the premises. In his opinion, both Mr. Engerer and
Mr. Winemiller considered drugs to be out of bounds at Solar. They wanted a long-term, drug-free relationship with the gay community. In Bentz’ opinion, if either member of management heard of drugs or lewdness going on at Solar, it would have been stopped.
Dennis Fleming worked part time as a bartender at Solar between August 1996 and February 1997, usually on Friday and Saturday nights, and on a couple of evenings during the week.
He, too, took Responsible Vendor training. As he recalls it, the noise level in Solar when it is crowded is very high, which makes it impossible to overhear patrons’ conversations. He knows Tiffany Middlesexx, who usually sat not far from where he worked the bar. During all the time Fleming worked at Solar, he claims, he never saw Middlesexx sell drugs to anyone inside or near the club. Though he knows Tony from that individual’s brief employment at the club and his subsequent patronage, he doesn’t know if Tony deals drugs The same is true for Tim. Fleming claims not to know Tempo. His periodic conversations with
management reinforced the explicit no-drug policy which is expressed to the public by the signs posted about the building. Though he admits to having danced at the club, removed his shirt, and unbuttoned his pants, he denies having ever removed his pants or lowered or removed his underpants.
Steven Stamberger was employed at night as a security officer at Solar from July 1996 to its closing. His post was at the entrance door where he checked identification for age and searched back packs of patrons to look for contraband. According to Mr. Stamberger, while doing this he never discovered any drugs being carried by any patrons.
Mr. Stamberger also contends there were signs posted at the front entrance which indicated that drugs were not allowed on the premises. There were also signs in the bathrooms to that effect. From time to time each night he would walk through the club on the way to the bathrooms, and he claims never to have seen any drug activity during any of those walk-throughs. He also admits to knowing Tiffany Middlesexx and Tempo but denied knowing whether either sold drugs. He claims no one discussed it with him, but he knows that drugs are not tolerated on the premises.
Mr. Stamberger recalls having seen an act of oral sex being committed in the VIP room one time. When he saw it, he went over to the parties, interrupted the activity, and put them out of the club for the evening. To his knowledge, they were not barred from the club for this. He denies, however, having ever
seen any of the dancers disrobe or allow patrons to touch their genitals for tips in the club.
In 1996, Mr. Engerer, the owner and sole officer of the corporation which operates Solar, invested $50,000 the company. This money came from his 401(k) plan and his stock investments. At the time, he claims, he had very little experience in nightclub operation, and when he took over, he hired a firm to provide Responsible Vendor training to him and his staff before he opened.
Mr. Engerer worked every Friday and Saturday nights and, in addition, occasionally also went in during the week. On the weekends, he would open the club, set up the bar, and work at bar three as a bartender. Bar three is where Tiffany Middlesexx generally sat. It has two cash registers -- one at the “L,” and one at the far end. He worked at the far end.
Engerer knew Tiffany Middlesexx from his/her performances at other clubs, but asserts he had no knowledge of that individual’s dealing in narcotics, either before or after he bought the club. He claims he never saw any drug deals take place in the club. Engerer claims not to have known Tempo or anything about him/her before or after he bought the club, especially about drug activity.
Mr. Engerer admits to knowing Tony, who was recommended to work at Solar because of his prior experience at other clubs. However, Tony was injured the first night on the job and never actually worked there. Engerer claims he had no idea Tony dealt
drugs, nor did he ever see Tony deal at Solar.
Club policy, according to Mr. Engerer, which he claims he expressed to all employees, is that there is a zero tolerance for drugs, and patrons and employees are to be evicted or fired for possession of unlawful drugs on the club premises. With the large crowds they get on the weekends, he claims it was very hard to hear, especially for the bartenders who worked at least three feet from the patrons.
Mr. Engerer claims that signs given to him by the Responsible Vendor trainers were posted throughout the club: at the front door, at the top of the stairs to the second floor, downstairs in the bar, and in each restroom. He had several security people on the floor on the weekends to ensure there was no drug activity in either the bar areas or the restrooms.
According to Mr. Engerer, he had no prior indication from the Division or other police agencies that they had any suspicion of ongoing drug activity, nor had he heard of any prior complaints about his establishment. Club policy also prohibited lewd activities, and Engerer claims he had no knowledge of such conduct going on there. He did not ignore it nor would he condone it, he claims.
Mr. Engerer also claims he was never told by anyone that Tiffany Middlesexx, Tempo, or anyone else, for that matter, was selling drugs in Solar. The first he knew of any of it, he asserts, was when the Emergency Order of Suspension was served. Had he known Tim was selling elsewhere, Tim would have
immediately been fired.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
Petitioner seeks to discipline the alcoholic beverage license of the Respondent because of alleged misconduct relating to the sale and delivery of cocaine and the conduct of illegal sex acts on the premises, in violation of Sections 893.13 and 561.29, Florida Statutes. The burden of proof in this case is upon the Petitioner to prove the misconduct alleged by clear and convincing evidence. Pic N'Save Central Florida, Inc. vs. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 601 So. 2d 245 (Fla. 1st DCA 1992).
Section 893.13(2)(a)5, Florida Statutes, makes it unlawful to keep or maintain any store, shop, warehouse, dwelling or building which is used by persons using controlled substances in violation of Chapter 893, Florida Statutes. Further, Section 823.10, Florida Statutes declares as a public nuisance any premises which are visited by persons for the purpose or unlawfully using any controlled substance, or which are used for the illegal keeping, sale, or delivery of controlled substances. In addition, Section 765.07(22)(a), Florida Statutes, makes it unlawful to keep, set up, maintain, or operate any place, structure, building, or conveyance for the purpose of lewdness.
The evidence of record submitted by Petitioner, in the
form of the testimony of Agents Paven and Murray, indicates that on the numerous occasions they visited the licensed premises either or both easily purchased cocaine from individuals within the establishment in clear sight of employees of the operator and observed overt acts of genital fondling and oral sodomy being committed in the presence of and with the participation of patrons of the establishment. Respondent presented evidence which, while not contradicting the stories told by Paven and Murray, indicated that neither the owner of the establishment nor any of his employees had the slightest indication any of the misconduct alleged by the beverage agents was taking place.
It can be conceded that on most occasions when Paven and Murray were present in the licensed establishment, the noise level might preclude the bartenders from clearly hearing the conversations between the agents and Tiffany Middlesexx or any of the other employees or patrons from whom the alleged purchases were made. However, it is impossible to conclude from the evidence presented that neither the bar staff nor the security personnel had any indication illegal activity was going on. To do so would be unreasonable and would require a total disregard of the eyewitness testimony of both beverage agents who had no personal interest in proving such misconduct.
The law has long recognized that a license holder is not a guarantor of the legality of conduct carried on within the licensed premises. However, a licensee is bound to exercise due diligence in managing the licensed premises and to utilize all
reasonable methods and take all reasonable precautions to prevent illegal activity from being carried on therein. Mere persistence or recurrence of drug transactions does not in itself require a finding, as a matter of law, that the licensee failed to exercise reasonable care or due diligence in supervising employees to prevent drug transactions on the licensed premises. Surf Attractions, Inc. vs. DABT, 480 So. 2d 1354 (Fla. 1st DCA 1986); Mel Heifietz vs. DABT, 475 So. 2d 1277 (Fla. 1st DCA 1985). In the instant case, however, the drug transactions and inappropriate behavior were more than persistent and recurrent.
They were carried on in the open and in clear view, if not hearing, of Respondent's employees, who could not have failed to have a reasonably good idea of what was going on, especially in light of the notorious reputations of the parties involved.
In the instant case, the evidence indicates that Respondent’s manager arranged for Responsible Vendor training to be given to his employees and that he placed the prohibitory signs provided to him at the entrance to the facility and elsewhere inside. However, the evidence is also clear that, for the most part, these warnings were ignored by the patrons, and the purported “no-tolerance” policy of management as regards the use or possession of illegal drugs within the facility was not enforced. There is also ample evidence to show a continuing failure to enforce proper standards of patron conduct which resulted in blatant displays of illicit sexuality and sexual misconduct on the premises.
Taken as a whole, the evidence clearly establishes the Respondent is guilty of repeated violations of the statute as alleged above, and Respondent’s license is, therefore, subject to discipline. In that regard, Petitioner has indicated its intention to follow its penalty guidelines as promulgated in Rule 61A-2.022, Florida Administrative Code. Petitioner asserts that the “open, persistent and flagrant drug activity being conducted on the licensed premises” supports imposition of the maximum civil penalty available. Section 561.29(1)(a), Florida Statutes, provides for a suspension or revocation of an alcoholic beverage license where the licensee permits another on the premises to violate the laws of this state. In addition, Section 561.29(3), Florida Statutes, permits the imposition of a fine of up to
$1,000 per count when a violation has been determined.
Here, the Notice to Show Cause, the charging document, alleges twelve counts of misconduct, all of which have been proven by clear and convincing evidence. Petitioner has indicated its intent to revoke Respondent’s license and impose a maximum civil fine of $1,000 per count for each of twelve counts for a total fine of $12,000.
Revocation of the license here is clearly appropriate. However, a maximum fine would seem to serve little purpose, especially in light of the fact that Respondent’s offenses seem more to be those of omission rather than commission. In a case of this nature, the more important result is to remove the problem rather than punish one whose culpability is based more on
a lack of diligence than on a criminal intent.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking Respondent’s 4-COP alcoholic beverage license number 39-01036, for the premises located at 911-913 Franklin Street in Tampa, and imposing an administrative fine of $5,000.
DONE AND ENTERED this 13th day of August, 1997, in Tallahassee, Leon County, Florida.
_ ARNOLD H. POLLOCK
Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1997.
Thomas A. Klein, Esquire Department of Business and
Joseph L. Diaz, Esquire 2522 West Kennedy Boulevard Tampa, Florida 33609
Linda L. Goodgame General Counsel
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
