STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 82-1414
) BREW MILL, INC., d/b/a ACT I ) LOUNGE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. That hearing was conducted on April 12 and 13, 1983, in Tampa, Florida. This Recommended Order is being entered following the receipt and review of proposed recommended orders, the last of which was filed with the Division of Administrative Hearings on May 9, 1983. To the extent that the proposals are consistent with the recommended order, they have been utilized. To the extent that the proposals are inconsistent with the Recommended Order, they are rejected.
APPEARANCES
For Petitioner: John A. Boggs, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: James C. Campisi, Esquire
2739 U.S. Highway 19
Holiday Office Center, Suite 401 Holiday, Florida 33590
ISSUES
The issues presented are the product of an administrative complaint/notice to show cause placed against Respondent by Petitioner pertaining to 19 separate allegations of possession, sale-delivery of controlled substances, within the meaning of Chapter 893, Florida Statutes. The transactions were allegedly made by agents, servants, or employees of Respondent. The activities by those individuals, i.e., agents, servants, or employees are allegedly tantamount to keeping or maintaining a public nuisance on the licensed premises, to wit: maintaining a building or place which is used fob the keening, selling, or delivery of controlled substances defined in Chapter 893, Florida Statutes. As a result of the accusations, Respondent is accused of violating Subsections 561.29(1)(a) and (c), Florida Statutes.
FINDINGS OF FACT
Respondent corporation operates a business known as the Act I Lounge, which is located at 290 Seventh Avenue and U.S. Highway 19 North, Clearwater, Pinellas County, Florida. Brewer Miller is the sole owner of the Respondent corporation and is the president of that concern. The corporation holds an alcoholic beverage license, No. 62-508, Series 4-COP issued by Petitioner allowing the sale of alcoholic beverages in the subject business premises.
In the month of April, 1982, Sherie Morel, Tina Belcher, Robin Herro, Mitzi Stevens, and Chris Goodman worked in the licensed premises as dancers. These performances took place in an area in the licensed premises where a raised platform was located. The purpose of the dancing was to entertain the patrons and the dancers solicited "tips" from the patrons. Respondent corporation did not pay a salary to the dancers. The dancers performed with the permission subject to dismissal by officials within the Respondent corporation, pursuant to verbal agreements between management and performers. Brewer Miller and managers who worked at the Act I Lounge established criteria for costume requirements for the dancers; content and manner of dances performed; and frequency and length of each dance performance. The criteria were designed to avoid violation of State laws and county ordinances related to dress. The dancers could choose their costumes within those guidelines. Ordinarily, the dancers provided their own choice of music. In addition to dances performed on stage, the dancers would dance at the table of patrons within the establishment and would dance while seated on the laps of patrons. This latter performance is known as a "lap dance". The routines, performed for the benefit of individual customers, were compensated for by payment sought from those particular customers. The dancers were also entitled to discounts on alcoholic beverages purchased beyond a certain number. The effect of the arrangement which the Respondent had with the dancers was one which allowed the dancers to be compensated by patrons and the Respondent to gain the benefits of having patrons in the bar to observe the dancing and to consume alcoholic beverages. Finally, should any dancer be caught with drugs or selling drugs, she would be barred from admission to the licensed premises.
In pursuit of the Respondent's drug policy in the premises, a barmaid, identified as "Donna", had been dismissed for using drugs, based upon her appearance of being under drug influence and having been found with a syringe in a napkin. This occurred in 1981. An individual associated with the bar employment identified as Pam Fletcher had been dismissed for drug related matters. Brewer Miller had dismissed one Cally Russell from employment at the Act I Lounge based upon information to the effect that she sold methaqualone; his observation of her handing something to a customer suspected of being that substance; and her failure to show whether the substance was in fact a drug. In addition, around 1:30 a.m. on April 25, 1982, the manager in the Act I Lounge had summoned the Pinellas County Sheriff's Office to remove a patron based upon the fact that the customer had been observed with drugs in the restroom area. Robin Herro, one of the dancers, was in the restroom facility at the time the customer was observed with the drugs. She did not have drugs on her person. Consequently, Miller made the judgment to fine Robin Herro as opposed to removing her from the licensed premises, with the admonition that her presence with someone using drugs on another occasion would bar her from the licensed premises in the future. Miller had also spoken to his bar managers employed at the Act I on the topic of the laws and ordinances related to the sale of alcoholic beverages, and mirrors were installed to help security surveillance activity by management.
Notwithstanding those occasions in which drug usage was discovered and action taken to avoid the problem, an investigation conducted by Beverage Officers working for Petitioner in an undercover capacity in April, 1982, led to the purchase of a number of controlled substances within the meaning of Chapter 893, Florida Statutes. The purchases were made from the aforementioned dancers working in the premises in April, 1982. The dancers had been operating in the licensed premises for a period of two or three months prior to the investigation. In a related vein, Brewer Miller had told one of his bar managers at the Act I, a man named Cox, that the dancers could smoke marijuana in the public restroom because Miller did not have control over that public convenience.
In the initial part of April, 1982, the agents from the Division of Alcoholic `Beverages and Tobacco began their investigation at the Respondent's licensed premises. Emphasis was placed on determining whether illicit drug sales were being conducted in the facility. Michael Freese, Beverage Officer, worked in an individual capacity. Beverage Officers Gary Hodge and Donald O'Steen worked as a team, always remaining in close proximity when in the licensed premises, except for April 16, 1982, when Hodge did not enter the bar. Respondent, in the person of its owner or other officials, was not made aware of the undercover investigation.
When the officers would enter the licensed premises in April, 1982, they would find a doorman on duty and various bartenders, waitresses, and bar managers working there. Brewer Miller was also in attendance at times, which occasions will be more particularly described subsequently.
On April 14, 1982, Freese entered the licensed premises at around 9:25
p.m. and spoke to dancer Sherie Morel. In the course of the conversation, Freese commented to Morel that it appeared that a drug transaction was occurring at a nearby location between dancer Chris Goodman and a white male. Morel indicated that it was a drug transaction and that Chris Goodman had cocaine which could be obtained by Morel. A discussion was then held between Morel and Freese in which Morel indicated that one-half gram of cocaine would cost $50. Morel left Freese and met with Goodman and brought back a packet containing a white powdery substance. That packet had been opened and Freese made Morel return the packet to Goodman and substitute a packet which was not opened. During this sequence, Morel licked some of the contents of the packet. The transaction took place in the licensed premises at approximately 10:45 p.m. The exchanges between Morel and Freese were made in the open. The substitute packet contained cocaine, approximately one-half gram. At the time that this transaction took place, there was no indication that Brewer Miller was in the bar.
Freese returned to the licensed premises at around 9:40 p.m. on April 15, 1982, and contacted Sherie Morel. He talked about the purchase of one gram of cocaine, and Morel indicated that the cost of that cocaine would be $100. Morel obtained material from Chris Goodman which Morel gave to Freese, and which was later revealed to be cocaine in the amount of approximately one gram. The transaction took place in the licensed premises. Freese did not see the exchange of the cocaine between Goodman and Morel before Morel returned and handed the cocaine to Freese. Morel was gone approximately 20 minutes in pursuit of the transaction with Goodman and during that time, the dancers went to the dressing room area set aside for dancers. Although Freese did not see the exchange between Goodman and Morel, Morel indicated that Goodman had given her the cocaine and the circumstances establish an exchange from Goodman to
Morel. While Morel and Goodman were conferring, Brewer Miller was standing within six to eight feet of that conversation. Miller was located at the bar.
At around 11:15 p.m. on April 15, 1982, Freese purchased a marijuana cigarette from Morel for $5 following a conversation in which Morel told Freese she could "turn him on to marijuana". The marijuana/cannabis contained less than one gram of that controlled substance.
On April 16, 1982, Freese went back to the licensed premises at around 10:00 p.m. and spoke with Morel. While dancing for Freese, Morel asked him if he liked "downers'. He told her he liked "ludes", meaning methaqualone. He also stated he was partial to cocaine. Out of this conversation, while in the licensed premises, she sold Freese two capsules of suspected valium, which was revealed to be Diazepam. There was no indication that Brewer Miller was in the licensed premises at the time of this transaction.
On April 17, 1982, at around 1:15 a.m., Freese entered the licensed premises. After contacting Morel, a transaction was entered into in the licensed premises in which approximately one-half gram of cocaine was purchased from Morel for the price of $50. The cocaine was contained in a packet. At the time of the exchange of the material, Brewer Miller was located approximately 30 to 40 feet away.
On April 19, 1902, Freese entered the bar at around 9:30 p.m. and spoke with Tina Belcher, another dancer in the licensed premises. Belcher had previously talked to Freese and Morel about the subject of drugs. On this occasion, Morel stated that she was going to be gone and wanted Belcher "to take care of Freese". At around 10:10 p.m., Belcher delivered cocaine to Freese in a small packet while in the licensed premises. There was no indication that Brewer Miller was in the licensed premises at the time of the exchange.
On April 19, 1982, at around 9:20 p.m., Officers Hodge and O'Steen entered the licensed premises and spoke with Tina Belcher about the drug cocaine. This occurred while Helcher was seated next to Hodge and during the course of the playing of a song on the "jukebox", which song was entitled "Cocaine". At that time, Belcher stated to Hodge "I wish I had some", referring to cocaine. Hodge in turn expressed his desire to obtain cocaine. Belcher stated that she would get cocaine for Hodge. She left Hodge to obtain the drug. When she returned, she handed Hodge a package containing cigarettes, also containing a packet with approximately one-half gram of cocaine. This transaction took place in the licensed premises. Brewer Miller had been observed on the licensed premises by Hodge on the evening of April 19, 1982; however, Hodge does not recall whether Brewer Miller was there at the time that the drug transaction took place between Hodge and Belcher involving the cocaine.
On April 19, 1982, Officer O'Steen spoke with Robin Herro, and she stated she could get him some "coke", meaning cocaine. A deal was made between those individuals to purchase approximately one-half gram of cocaine for the price of $50. The money was paid at around 11:45 p.m., and after leaving his location in the licensed premises, Herro returned to O'Steen and gave him the one-half gram of cocaine at around 12:07 a.m, on April 20, 1982. At the time O'Steen purchased the cocaine from Herro, Brewer Miller was in the licensed premises approximately 20 to 30 feet away from that purchase location.
At around 9:20 p.m., April 20, 1982, Freese entered the licensed premises and spoke to Morel about the possible purchase of cocaine. Freese was unable to consummate the purchase and Morel indicated that she might have
quaaludes to sell, meaning methaqualone. Later he told her, at around 11:10 p.m., that he would like four and paid her $3 each for those suspected methaqualones which were later revealed to be Diazepam. At the time of this transaction, there was no indication that Brewer Miller was in the licensed premises.
On April 20, 1982, at approximately 8:55 p.m., O'Steen and Hodge entered the licensed premises. Hodge spoke to the dancer Belcher and at 9:45
p.m. purchased approximately one-half gram of cocaine for the price of $50 while in the licensed premises. This followed a conversation in which Belcher had indicated that she could not afford the substance but could obtain it for Hodge. On this date, Brewer Miller had been in the licensed premises; however, Hodge was unsure whether Brewer Miller was present at the time that the transaction took place between Hodge and Belcher.
On April 20, 1982, during the evening hours, Officer O'Steen was engaged in a conversation with a dancer, Mitzi Stevens. She told him that she could obtain cocaine for him for a price of $50. Approximately one-half gram of cocaine was delivered to O'Steen and Stevens was paid $50. The transaction took place in the licensed premises.
On April 23, 1982, Officer Freese entered the licensed premises at around 8:15 p.m. and spoke to the dancer Robin Herro. Herro danced for him and while dancing, asked him if he wanted to buy a "lude", meaning methaqualone.
She stated she had ten in quantity. He told her he wanted cocaine. At around 9:45 p.m., Freese decided to purchase methaqualone and bought four tablets from Herro for a price of $12 total. The substance was determined to be methaqualone. The transaction took place in the licensed premises. There was no indication that Brewer Miller was in attendance when the transaction took place.
On April 28, 1982, Freese entered the licensed premises at around 9:30
p.m. At the time, he contacted Robin Herro, and following that contact, purchased approximately one gram of cocaine from her for $100. The purchase was made in the licensed premises. Freese was seated at a table at the time the transfer took place, and Brewer Miller was at the bar area approximately 25 feet away.
On April 28, 1982, Officers O'Steen and Hodge returned to the licensed premises. In the evening hours on that date, O'Steen made an arrangement with the dancer Chris Goodman to purchase one-half gram of cocaine for $50 for the benefit of himself and another half gram for $50 for Officer Hodge. The Officers each paid Goodman $50 and retrieved the cocaine from napkins found in the dancer's garterbelt. Shortly thereafter, Tina Belcher, another dancer, sat down and requested that O'Steen give her some of the cocaine. He retrieved the napkin which contained the cocaine, give it to Belcher, who left and later returned with a package containing the substance cocaine, in the amount of approximately one-half gram. Tina Belcher also requested Hodge to provide her cocaine after the transaction with Goodman.
On April 29, 1982, Officer Freese entered the licensed premises at around 9:20 p.m., and after arriving, bought cocaine from Robin Herro. During the conversation to establish the sale, Herro asked Freese if he had obtained cocaine from Chris Goodman and he replied that Goodman didn't have cocaine. Herro indicated that her "connection" was in the licensed premises, and she went and sat with a man in the bar and returned with the substance. It was at the point of her return with the cocaine that the price of $50 was arrived at. The
money was paid to Herro, and the substance cocaine was provided to the officer in the licensed premises. There was no indication that Brewer Miller was in the premises at that time.
At around 8:55 p.m., Hodge and O'Steen entered the licensed premises on April 29, 1982. Hodge spoke to Robin Herro and she performed a dance while seated on his lap for which she charged money. A discussion was held about narcotics and she stated "the reason I didn't talk to you last night is because I had a deal going and the guy didn't want it to be known". She stated that she could obtain cocaine for Hodge from Goodman. Herro obtained cocaine for Hodge and gave it to him and he paid Goodman $50 after asking Goodman if the price was
$45 or $50, and Goodman indicating the price was $50. O'Steen had talked to Chris Goodman about the purchase of one-half gram of cocaine and saw Herro give the one-half gram to Hodge after O'Steen had informed Hodge that the deal, through Goodman, had been made. O'Steen wanted Hodge to buy the cocaine since only one-half gram was available. This transaction took place in the licensed premises. At the time of this transaction, Brewer Miller was at the bar area some 10 to 15 feet away facing in the general area of the transaction. He was nearer the "jukebox", which was playing, than he was the transaction, and the music was louder than the conversation involved in the drug transaction.
On April 30, 1982, Freese returned to the licensed premises in the evening. In a conversation with Chris Goodman, she stated that her "guy is not here with the stuff, meaning her supplier of cocaine. At around 11:35 p.m. Freese approached Goodman at a table where O'Steen and Hodge were also located and asked her if the "guy" had arrived. Goodman answered in the affirmative. Freese had been seated some 10 to 12 feet away from O'Steen and Hodge. Freese returned to his location on the east wall. Goodman went to the bar area and spoke with a Bill Higgins, who-was working there, and received something from him. She then went to the ladies restroom area. At that time, Miller was located at the north end-of the bar. Goodman subsequently came to Freese's table and he removed a napkin from her garterbelt and placed $100 there. The
$100 payment was in exchange for a quantity of cocaine. The transaction took place in the licensed premises, and at the point of transfer between Goodman and Freese, Miller was approximately 30 feet away.
On April 30, 1982, at approximately 8:55 p.m., Hodge and O'Steen entered the licensed premises and talked to Chris Goodman. She danced a "lap dance" for Hodge and charged him for it. Goodman asked O'Steen if he still wanted a "gram". O'Steen made arrangements with Goodman to purchase approximately one gram of cocaine for the price of $100 for the benefit of O'Steen and another one-half gram for Hodge for $50. The transaction took place after Goodman indicated that her contact had arrived in the licensed premises, by stating "it's here", meaning cocaine. In the transaction, Goodman handed napkins containing the cocaine to O'Steen. O'Steen kept two packets and Hodge kept one packet. The transaction occurred in the licensed premises, and the payment of $150 was made, $100 from O'Steen and $50 from Hodge. At the time the transaction took place with Goodman involving the three packets of cocaine, Brewer Miller was at the bar area near the "jukebox".
On other occasions in April, 1982, Officer Hodge had pursued the investigation; however, no drugs were purchased. He was in the licensed premises on April 13, 1982, and made no purchase of drugs. On April 15, 1982, he talked to Chris Goodman about drugs in that he needed something for his sinuses, referring to cocaine. She replied that had you asked earlier, "I would have". She told him to ask again the next day and asked if he wanted a "G", meaning a gram. This conversation followed another conversation with Goodman on
April 14, 1982. On April 22, 1982, Hodge spoke with Tina Belcher and asked her if she had anything for his nose,' meaning cocaine. She stated-that she did not because Chris was all out. Chris refers to Chris Goodman. Belcher indicated she had been "ripped-off" about drugs and Fred the manager had also been
"ripped-off" by Sherie Morel, in that the substance they had purchased was not what they thought it would be.
At the time that drug purchases were being made by Hodge and O'Steen,
10 to 25 people would be located in the bar. All officers found the lighting to be sufficient to identify people located at the other end of the premises while purchases were being made.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Subsection 120.57(1), Florida Statutes.
Sherie Morel, Tina Belcher, Robin Herro, Mitzi Stevens, and Chris Goodman were agents of the Respondent corporation within the meaning of Subsection 561.29(1)(a), Florida Statutes, related to the time period April, 1982. In keeping with the findings of fact, it is concluded that the aforementioned agents, who worked as dancers in the licensed premises, possessed and sold controlled substances as defined in Section 893.03, Florida Statutes, and thereby violated Subsection 893.13(1)(a), Florida Statutes. Those drugs/controlled substances were cocaine, methaqualone, marijuana/cannabis, and Diazepam.
Respondent, in the person of its president, Brewer Miller, and other persons within the corporation, had no direct involvement in the drug transactions set forth in the facts and have not been shown to have knowledge of those drug transactions. Therefore, if the Respondent is to be culpable for the violations committed by the agents of the Respondent, it must be on the basis of negligence or the failure to use due diligence in the conduct of the corporation's business. See Woodbury v. State Beverage Department, 219 So.2d 47 (Fla. 1st DCA 1969). To prove negligence or lack of due diligence, Petitioner must establish a persistent and practiced pattern of illegality occurring on the licensed premises through the conduct of the dancers before culpability for those actions of the agents may be found. See Lash, Inc. v. State, Department of Business Regulation, 411 So.2d 276 (Fla. 3d DCA 1982). Isolated instances of misconduct through the possession and sale of controlled substances within the meaning of Chapter893, Florida Statutes, will not promote a finding of culpability or accountability on the part of Respondent based upon acts of its agents. See G.& B. of Jacksonville, Inc. v. State, 371 So.2d 139 (Fla. 1st DCA 1979). Examining the 19 sales of controlled substances within April, 1982, in context, and in view of past experiences which Respondent had with drug related problems in the licensed premises and the open and notorious fashion in which drug transactions were conducted; a persistent and practiced pattern of illegality through the possession and sale of controlled substances within the meaning of Chapter 893, Florida Statutes, by agents of Respondents is found. In consideration of the extent of those activities by the agents, Respondent is found to be culpable or accountable for the violations by its agents related to Chapter 893, Florida Statutes, and in particular, Subsection 893.13(1)(a), Florida Statutes. Respondent is culpable because through its president and other persons, it has been negligent and failed to use due diligence in the conduct of its business. In turn, Respondent is also vicariously liable for the violations of Subsection 561.29(1)(a), Florida Statutes, which have been
committed by its agents in the licensed premises, that is to say, Respondent has violated Subsection 561.29(1)(a), Florida Statutes through acts of its agents.
As a consequence, Respondent is subject to the penalties set forth in Subsections 561.29(1) and (3), Florida Statutes.
Respondent, by reason of its negligence and lack of due diligence, as described in the previous discussion of law, has also allowed its agents, in the period April 14, 1982, through and including April 30, 1982, to maintain the licensed premises to be used for the keeping or selling of controlled substances, defined in Chapter 893, Florida Statutes, to wit: cocaine, Diazepam, marijuana/cannabis and methaqualone, in violation of Subsection 893.13(2)(a)5, Florida Statutes, and in turn, caused Respondent to violate Subsection 569.29(1)(a), Florida Statutes, and Subsection 561.29(1)(c), Florida Statutes, for maintaining a nuisance in the licensed premises. Likewise, the licensed premises was used by the agents of Respondent for illegal keeping, selling, and delivering of these aforementioned controlled substances, making the licensed premises a public nuisance within the meaning of Section 823.10, Florida Statutes. Thus, Respondent has violated Subsection 561.29(1)(a), Florida Statutes, and Subsection 561.29(1)(c) , Florida Statutes, by maintaining a public nuisance. In consideration of these matters of nuisance', the Respondent is subject to the penalties set forth in Subsections 561.29(1) and (3), Florida Statutes.
In consideration of the facts found, the conclusions of law reached, and the seriousness of the violations established, it is
That a Final Order be entered which revokes the beverage license, No. 4- COP, 62-508, issued to Brew Mill, Inc. to trade as Act I Lounge.
DONE and ENTERED this 1st day of June, 1983, in Tallahassee, Florida.
CHARLES C. ADAMS, 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 1st day of June, 1983.
COPIES FURNISHED:
John A. Boggs, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
James C. Campisi, Esquire 2739 U.S. Highway 19
Holiday Office Center, Suite 401 Holiday, Florida 33590
Mr. Howard M. Rasmussen Director
Division of Alcoholic Beverages and Tobacco
725 South Bronough Street Tallahassee, Florida 32301
Mr. Gary Rutledge Secretary
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jun. 01, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 01, 1983 | Recommended Order | Revoke beverage license for allowing public nuisance in permitting sale and use of controlled substances on licensed premises. |
