Judges: R. T. CARPENTER
Agency: Department of Business and Professional Regulation
Latest Update: Jan. 10, 1983
Summary: Respondent's dancers solicited drinks from customers in violation of statute as part of their pay. Recommend suspension of license.
82-1412STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 82-1412
) LIBRARY LOUNGE, INC., d/b/a ) LIBRARY LOUNGE, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Tampa, Florida on August 12, 1982, before the Division of Administrative Hearings and its duly appointed Hearing Officer. The parties were represented by:
APPEARANCES
For Petitioner: John A. Boggs, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Ira Weinstein, Esquire
2021 West 7th Avenue Tampa, Florida 33605
This matter arose on Petitioner's Administrative Complaint charging Respondent with violations of Section 562.131, Florida Statutes (F.S.). This provision prohibits the solicitation of alcoholic or other beverages bv employees of an alcoholic beverage licensee.
The parties submitted proposed findings of fact and conclusions of law. To the extent the proposed findings have not been adopted or incorporated herein, they have been rejected as irrelevant or as not consistent with the evidence.
FINDINGS OF FACT
Respondent holds alcoholic beverage license No. 39-651, series 4-COP, which applies to its business known as Library Lounge, located at 10924 Nebraska Avenue, Tampa, Florida. Respondent was so licensed at all times relevant to this proceeding.
Beverage Officer Lloyd entered Respondent's licensed premises on August 7, 1980, to conduct an undercover investigation. He was approached by two dancers in bikini costumes who introduced themselves as Billy Joe (or B.J.) and Brenda. Billy Joe twice asked him to buy her drinks, which he did (Counts 1 and
2). He also purchased a drink for Brenda at her request (no charge). Lloyd saw Billy Joe and Brenda perform their dances on a raised stage.
Lloyd returned to the licensed premises on August 8, 1980, and was again approached by the dancer Billy Joe, who asked him to buy her a drink. Lloyd purchased the drink as requested (Count 4).
Lloyd returned to the licensed premises on October 14, 1980, where he was approached by dancers in bikini costumes who introduced themselves as Deanna and Margie. They asked him to buy drinks, and Lloyd purchased two drinks for each of these dancers (Counts 8, 13, 14, 15). He also observed them performing on the stage.
Beverage Officer Jones entered the licensed premises in an undercover capacity on August 7, 1980. He was approached by the dancer, Brenda, who asked him to purchase her a drink. Jones purchased the drink as requested (Count 3). He observed Brenda dance on the stage while attired in a bikini costume.
Jones entered the licensed premises on October 14, 1980, in an undercover capacity and was approached by the dancer, Margie. Jones purchased three drinks for Margie at her request (Counts 10 and 12). She stated that the dancers were paid one dollar for each drink purchased on their behalf by a customer.
Beverage Officer Kiker entered the licensed premises on August 7, 1980, in an undercover capacity. He was approached by the dancer, Brenda, who twice asked him to buy drinks. Kiker purchased the drinks as requested (no charge). He observed Brenda dance on stage. She was attired in a two piece G-string costume.
Kiker entered the licensed premises on October 14, 1980, in an undercover capacity. The dancers, Deanna and Margie, asked him to buy them drinks. He purchased the drinks as requested (Counts 6 and 11). He also purchased a drink for Deanna in response to her request made while she was dancing on stage for somebody to buy her a drink (Count 7). Kiker identified Deanna as Deanna Hill and Margie as Margaret San Felize at their arrest on October 24, 1980.
On October 14, 1980 Kiker had paid Tammy Yates, the bartender for Deanna's drink and observed that she noted the transaction on a pad by the cash register. He further observed that the pad had four names on it. At the October 24 arrest, Tammy advised Kiker that she kept a tally of the drinks purchased for the dancers.
CONCLUSIONS OF LAW
Section 561.29, F.S., provides in part:
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:
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.
* * *
(3) The division may impose a civil
penalty against a licensee for any violation mentioned in the Beverage Law, or
any rule issued pursuant thereto, not to exceed 51,000 for violations arising out of a single transaction . . . .
The above provisions empower Petitioner to revoke or suspend a beverage license for violation by the licensee or its employees of a federal or state law or applicable ordinance. Violation of the beverage statute or rules by the licensee may also result in fines of up to 51,000 per transaction.
These provisions have been construed to permit license suspension or revocation only where the license holder has knowledge of the illegal activity or has been negligent in supervising the licensed premises. 2/ Although a single, isolated incident outside the licensee's knowledge does not warrant a finding of negligence, violations of a persistent and recurring nature render the licensee culpably responsible. 3 /
Section 562.131, F.S., makes solicitation of alcoholic or other beverages by employees of the licensee a second degree misdemeanor. Petitioner demonstrated through substantial, competent evidence that 13 of the 15 violations charged involved direct requests for the purchase of drinks by entertainers employed by Respondent, in violation of this statute (Counts 5 and
9 were not proven and should be dismissed). Although it was not conclusively demonstrated that the licensee had actual knowledge of these violations, the involvement of the bartender and the persisted and recurring nature of the solicitations rendered it culpably responsible on a negligence basis.
Respondent argues that employment or agency of the dancers was not proven by employment records or other direct evidence of employment. The presence of the dancers in bikini costumes, their performances on stage and the bartender's tally of drinks purchased for them by customers adequately establishes the employer-employee relationship contemplated by the above statutes. It should be noted that Respondent presented no rebuttal evidence whatsoever.
Respondent further contends that Petitioner's evidence is insufficient since all dancers were not identified by their full names. Although such identification is desirable, it is not an essential element of proof of these administrative charges, nor was Respondent prejudiced by this deficiency.
Finally, Respondent has moved to dismiss the Administrative Complaint on the grounds of Laches. This motion is denied. Respondent received the Notice to Show Cause setting forth these charges on December 17, 1980. Protracted settlement negotiations followed, and at no point could Petitioner's delay be deemed excessive or unreasonable.
RECOMMENDATION
From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty
of charges contained in Counts 1 through 4, 6 through 8, and 10 through 15 of the Administrative Complaint and suspending Respondent's alcoholic beverage license for a period of 30 days.
DONE and ENTERED this 28th day of September, 1982, in Tallahassee, Florida.
R. T. CARPENTER, 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 28th day of September, 1982.
ENDNOTES
1/ Charges contained in the Administrative Complaint are identified parenthetically.
2/ G&D of Jacksonville, Inc. v. State, 371 So.2d 138, 371 So.2d 139, 381 So.2d
1074 (Fla. 1st DCA 1979); Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962). 3/ Id.
COPIES FURNISHED:
John A. Boggs, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Ira Weinstein, Esquire 2021 West 7th Avenue Tampa, Florida 33605
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO,
Petitioner,
vs. CASE NO. 82-1412
DABT NO. 31576A
Respondent.
/
FINAL ORDER
This matter came on for hearing in Tampa, Florida, on August 12, 1982, before the Division of Administrative Hearings and its duly appointed Hearing Officer. The parties were represented by:
For Petitioner: JOHN A. BOGGS, ESQUIRE
Division of Alcoholic Beverages and Tobacco Department of Business Regulation
725 South Bronough Street Tallahassee, Florida 32301
For Respondent: IRA WEINSTEIN, ESQUIRE
2021 West 7th Avenue Tampa, Florida 33605
This matter arose on Petitioner's administrative complaint charging Respondent with violations of Section 562.131, Florida Statutes. This provision prohibits the solicitation of alcoholic or other beverages by employees of an alcoholic beverage licensee.
On September 28, 1982, the Hearing Officer entered his Recommended Order in this matter. Time for filing of exceptions to said Recommended Order having expired and no exceptions having been timely filed (Respondent filed exceptions dated October 29, 1982), the undersigned Director of the Division of Alcoholic Beverages and Tobacco hereby enters this the agency's Final Order in this cause as follows:
FINDINGS OF FACT 1/
Respondent holds alcoholic beverage license No. 39-651, Series 4-COP, which applies to its business known as Library Lounge, located at 10924 Nebraska Avenue, Tampa, Florida. Respondent was so licensed at all times relevant to this proceedings.
Beverage Officer Lloyd entered respondent's licensed premises on August 7, 1980, to conduct an undercover investigation. He was approached by two dancers in bikini costumes who introduced themselves as Billy Joe (or B.J.) and Brenda. Billy Joe twice asked him to buy her drinks, which he did (Counts 1 and 2). He also purchased a drink for Brenda at her request (no charge). Lloyd saw Billy Joe and Brenda perform their dances on a raised stage.
Lloyd returned to the licensed premises on August 8, 1980, and was again approached by the dancer Billy Joe, who asked him to buy her a drink. Lloyd purchased the drink as requested (Count 4).
Lloyd returned to the licensed premises on October 14, 1980, where he was approached by dancers in bikini costumes who introduced themselves as Deanna and Margee. They asked him to buy drinks, and Lloyd purchased two drinks for each of these dancers (Counts 8, 13, 14, 15). He also observed them performing on the stage on this occasion.
Beverage Officer Jones entered the licensed premises in an undercover capacity on August 7, 1980. He was approached by the dancer, Brenda, who asked him to purchase her a drink. Jones purchased the drink as requested (Count 3). He observed Brenda dance on the stage while attired in a bikini costume.
Jones entered the licensed premises on October 14, 1900, in an undercover capacity and as approached by the dancer, Margee, Jones purchased three drinks for Margee at her request (Counts 10 and 12). She stated that the dancers were paid one dollar for each drink purchased on their behalf by a customer.
Beverage Officer Kiker entered the licensed premises on August 7, 1980, in an undercover capacity. He was approached by the dancer, Brenda, who twice asked him to buy drinks. Kiker purchased the drinks as requested (no charge) . He observed Brenda dance on stage. She was attired in a two piece G-string costume.
Kiker entered the licensed premises on October 14, 1980, in an undercover capacity. The dancers, Deanna and Margee asked him to buy them drinks. He purchased the drinks as requested (Counts 6 and 11). He also purchased a drink for Deanna in response to her request made while she was dancing on stage for somebody to buy her a drink (Count 7). Kiker identified Deanna as Deanna Hill and Margee as Margaret San Felize at their arrest on October 24, 1980.
On October 14, 1980, Kiker had paid Tammy Yates, the bartender, for Deanna's drink and observed that she noted the transaction on a pad by the cash register. He further observed that the pad had four names on it. At the
October 24 arrest, Tammy advised Kiker that she kept a tally of the drinks purchased for the dancers.
CONCLUSIONS OF LAW
Section 561.29, Florida Statutes, provides in part:
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:
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 municipality 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.
* * *
(3) The division may impose a civil penalty against a licensee for any violation mentioned in the Beverage Law, or any rule issued pursuant thereto, not to exceed
$1,000 for violations arising out of a single transaction . . . .
The above provisions empower Petitioner to revoke or suspend a beverage license for violation by the licensee or its employees of a federal or state law or applicable ordinance. Violation of the beverage statute or rules by the licensee may also result in fines of up to $1,000 per transaction.
These provisions have been construed to permit license suspension or revocation only where the license holder has knowledge of the illegal activity or has been negligent in supervising the licensed premises. 2/ Although a single, isolated incident outside the licensee's knowledge does not warrant a finding of negligence, violations of a persistent and recurring nature render the licensee culpably responsible.
Section 562.131, Florida Statutes, makes solicitation of alcoholic or other beverages by employees of the licensee a second degree misdemeanor. Petitioner
demonstrated through substantial, competent evidence that 13 of the 15 violations charged involved direct requests for the purchase of drinks by entertainers employed by Respondent, in violation of this statute (Counts 5 and
9 were not proven and should be dismissed). Although it was not conclusively demonstrated that the licensee had actual knowledge of these violations, the involvement of the bartender and the persistent and recurring nature of the solicitations rendered it culpably responsible on a negligence basis.
Respondent argues that employment or agency of the dancers was not proven by employment records or other direct evidence of employment. The presence of the dancers in bikini costumes, their performances on stage and the bartender's tally of drinks purchased for them by customers adequately establishes the employer-employee relationship contemplated by the above statutes. It should be noted that Respondent presented no rebuttal evidence whatsoever.
Respondent further contends that Petitioner's evidence is insufficient since all dancers were not identified by their full names. Although such identification is desirable, it is not an essential element of proof of these administrative charges, nor was Respondent prejudiced by this deficiency.
Finally, Respondent has moved to dismiss the Administrative Complaint on the grounds of Laches. This motion is denied. Respondent received the Notice to Show Cause setting forth these charges on December 17, 1980. Protracted settlement negotiations followed, and at no point could Petitioner's delay be deemed excessive or unreasonable.
ORDER
From the foregoing findings of fact and conclusions of law, it is ORDERED that Respondent be found guilty of those charges referenced in
paragraphs one (1) through four (4) six (6) through eight(8), and ten (10) through fifteen (15) of the notice to show cause/administrative complaint.
It is further ORDERED that Respondent's alcoholic beverage license no. 39- 651, Series 4-COP, he and the same is hereby SUSPENDED for a period of thirty
(30) days commencing upon the service of this Final Order upon Respondent.
DONE AND ORDERED at Tallahassee, Florida, this 7th day of January, 1983.
GARY R. RUTLEDGE SECRETARY
DEPARTMENT OF BUSINESS REGULATION
725 South Bronough Street Tallahassee, Florida 32301
ENDNOTES
1/ Charges contained in the Administrative Complaint are identified parenthetically.
2/ G&B of Jacksonville, Inc. v. State, 371 So.2d 138, 371 So.2d 139, 381 So.2d
1074 (Fla. 1st DCA 1979); Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962).
COPIES FURNISHED:
JOHN A. BOGGS, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Ron T. Carpenter, Esquire
Division of Administrative Hearings 2009 Apalachee Parkway
Tallahassee, Florida 32301
Ira Weinstein, Esquire 2021 West 7th Avenue Tampa, Florida 33605
Docket for Case No: 82-001412
Orders for Case No: 82-001412
| Issue Date |
Document |
Summary |
|
Jan. 07, 1983 |
Agency Final Order
|
|
|
Sep. 28, 1982 |
Recommended Order
|
Respondent's dancers solicited drinks from customers in violation of statute as part of their pay. Recommend suspension of license.
|
