STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1443

) GOLDEN DOLPHIN NUMBER ONE t/a ) GOLDEN DOLPHIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at 1300 West Lee Road, Office of the Division of Alcoholic Beverages and Tobacco, Orlando, Florida, at 10:00 a.m., September 20, 1977.

APPEARANCES

For Petitioner: Lawrence D. Winson, Esquire

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32304

For Respondent: Lawrence M. Litus, Esquire

231 East New Haven Melbourne, Florida 32901

ISSUE

1. Whether or not on or about May 25, 1977, the Respondent licensed under the beverage laws and/its agent, servant, or employee, employed by salary or on a contractual basis to entertain, perform or work upon the licensed premises, to wit: Lisa Palov Clark, aka Di Di Bang Bang, did beg or solicit a customer or patron, to wit; Deputy Ernest Weaver, on the Respondent's licensed premises, to purchase a beverage, alcoholic or otherwise, for Respondent, its agent, servant, or employee or entertainer, contrary to Section 562.131(1) F.S.

   
   

2. There was noticed for hearing a second count to the Notice to Show Cause which was not heard due to the motion to withdraw the count, made by the Petitioner.

FINDINGS OF FACT

1. The Respondent, Golden Dolphin Number One, doing business as Golden Dolphin, is the holder of license number 15-229, Series 2-COP, held with the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco. This

   license is for operation at a location at 6107 North Atlantic Avenue, CAPS Canaveral, Florida. The operative period of the license is from October 1, 1976 through September 30, 1977. A copy of the license may be found as part of Petitioner's composite exhibit #1 admitted into evidence.

   
   

2. On May 25, 1977, Lisa Palov Clark, also known as Di Di Bang Bang, was actively employed on the licensed premises, by the licensee. Ms. Clark's employment was as an entertainer, specifically a dancer.

   
   

3. On the subject evening of May 25, 1977, Officer Ernest Weaver of the Brevard County, Florida Sheriff's Office, and Beverage Officer Eugene P. Fogle, entered the licensed premises around 9:00 p.m. and took seats in separate locations. They observed the floor shows being presented on the licensed premises, which shows were nude dancers and striptease. One of the dancers was Lisa Palov Clark. After completing her dance, Ms. Clark went to the dressing- room area of the licensed premises and then returned to the area occupied by the patrons.

   
   

4. When she returned, she approached the table at which Officer Weaver was seated. She approached him without being requested by Officer Weaver either orally or by gesture. When she arrived at the table, she made the comment to Officer Weaver either to the effect "Can I have a drink?" or "Won't you let me order something?". Officer Weaver in his testimony at the hearing was uncertain of the exact statement made by Ms. Clark. Subsequent to the aforementioned comment, in whatever form it took, Ms. Clark stated that she felt hot and that her neck was wet. These comments were directed to Officer Weaver. During the course of this conversation, a waitress came and stood by the table at which Officer Weaver was seated. The waitress did not participate in the conversation between Ms. Clark and Officer Weaver. Officer Weaver, in response to Ms. Clark's comments, asked what she would like to drink, and Ms. Clark indicated that she would like champagne, one drink of which costs $2.75 and a pony bottle cost $6.00. The waitress then stated, "What will it be?" and Officer Weaver said, "Bring one of the $6.00 bottles." The waitress brought a bottle and at least one glass. The bottle was placed on the floor between Officer Weaver and Ms. Clark. The glass was positioned in the place at which Ms. Clark was seated and a drink was poured for her. Officer Weaver paid $6.00 plus a tip to the waitress.

   
   

   (There was some discussion about a possible second bottle which was purchased, but the recollection of witnesses was not sufficient to establish the existence of such a second bottle of champagne.)

   
   

5. There was no testimony about the knowledge of the activities between Officer Weaver, Ms. Clark, and the waitress, from the point of view of any of the officers, directors, or owners of the licensed premises. Moreover, it was not established that any manager in charge of the licensed premises observed the interchange between Officer Weaver, Ms. Clark and the waitress.

   
   

6. The facts as established, constitute a sufficient basis to show that the employee of the licensee, to wit, Lisa Palov Clark, employed on the licensed premises to entertain, perform or work, did beg or solicit a patron or customer on the licensed premises to purchase a beverage in violation of Section 562.131,

   F.S. However, even though the employee violated this law, the licensee was not culpable based upon any willful intent, negligence or lack of due diligence.

   See Trader Jon Inc. vs. State Beverage Department, 119 So.2d 735 (1st DCA 1960). Additionally, the testimony indicated that the licensee in the person of Milton Seidman had instructed the employee Ms. Clark not to solicit drinks. Finally,

   to penalize the licensee under s. 561.29, F.S., there must be a showing of more than an isolated incident as is the case here. See Taylor v. State Beverage Department, 194 So.2d 321 (2d DCA, 1967).

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction in this cause.

   
   

8. On consideration of the facts established, it is concluded that Lisa Palov Clark, aka Di Di Bang Bang, did violate s. 562.131(1), F.S.; however, the licensee has not been shown to be culpable for that violation of its employee since the violation was not with the knowledge of the licensee, through the negligence of the licensee, or through the lack of due diligence of the licensee. Therefore, the licensee is not held accountable under the penalty provisions of s. 561.29, F.S.

   
   

9. At the beginning of the hearing, the Petitioner moved to dismiss count number (2) of the Notice to Show Cause and that motion to dismiss should be granted.

RECOMMENDATION

It is recommended that the licensee, Golden Dolphin Number One, d/b/a Golden Dolphin, operating under licensee number 15-229, to do business at 6107 North Atlantic Avenue, CAPS Canaveral, Florida, be relieved of the necessity to make further answer to the Notice to Show Cause which is the subject of this hearing.

DONE and ENTERED this 6th day of October, 1977, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Lawrence D. Winson, Esquire Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32304

Lawrence M. Litus, Esquire

231 East New Haven Melbourne, Florida 32901

Docket for Case No: 77-001443

Orders for Case No: 77-001443