vs. ) CASE NO. 82-1793
Respondent. )
This matter came on for hearing in Lakeland, Florida, on November 15, 1982, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:
For Petitioner: John A. Boggs, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Robert A. Young, Esquire
This case arose on Petitioner's Amended Administrative Complaint/Notice to Show Cause charging that Respondent maintained a public nuisance and that Respondent's agents, servants or employees committed acts of indecent exposure, offered to commit prostitution, solicited drinks and possessed or delivered drugs in violation of Florida Statutes and a Polk County Ordinance. The parties submitted proposed findings of fact, which have been incorporated herein to the extent they are relevant, material and consistent with the evidence.
The Respondent, Peek A Boo Lounge, Inc., d/b/a Peek A Boo Lounge is the holder of alcoholic beverage license No. 63-549 (Series 2-COP), at the business address of 270 East Highway 92, Lakeland, Florida.
On January 29, 1982, Deborah Lynn Edwards, a dancer-entertainer, while on the licensed premises of Respondent, was in possession of and sold amphetamines to Polk County Sheriff's Department Undercover Investigator Whitis (Counts 1 and 2).
On the same day, January 29, 1982, Constance M. Borque, while dancing as an entertainer on the licensed premises, exposed her pubic area to the customers and patrons then present at the Peek A Boo Lounge. This exposure of
her pubic area was witnessed by Polk County Sheriff's Department Undercover Officer Whitis (Count 3).
On February 2, 1982, Officer Creamer of the Polk County Sheriff's Department was in the Peek A Boo Lounge in an undercover capacity. On this evening he was approached by Isabella Marie Arnot, a dancer-entertainer. During the course of their conversation, Arnot requested that Officer Creamer purchase an alcoholic beverage for her (Count 6)
On February 4, 1982, Officer Whitis was again in the licensed premises in an undercover capacity. On this evening he was approached by Connie Frances Margotta, a dancer-entertainer, and a brief conversation ensued. In the course of this conversation, Margotta suggested certain sexual activities to Whitis, but there was no offer by Margotta to exchange sexual favors for money or other property of value (Count 7).
On the next evening, February 5, 1982, Officer Whitis returned to the licensed premises and was again approached by Connie Frances Margotta. She again suggested sexual activities with Whitis, without offering to exchange sexual favors for money or other property of value (Count 8).
On the same day, February 5, 1982, Beverage Officer Nelson, of the Division, was in the licensed premises in an undercover capacity. While Nelson was in the licensed premises on this evening he was approached by Daneilla A. Good, a barmaid, and engaged in a conversation with her. In the course of this conversation, Good requested Nelson to purchase a drink for a dancer-entertainer (Count 12).
On about February 5, 1982, Polk County Sheriff's Department Officer Walker was in the licensed premises in an undercover capacity. Walker observed Linda Leanne Marquis, entertaining the patrons by dancing in the licensed premises. She periodically removed a portion of her costume with the exception of a feather boa. At the conclusion of her dance, Marquis exposed her pubic area to the patrons by "flashing" with the boa.
On February 6, 1982, Polk County Sheriff's Officer Creamer was in the licensed premises in an undercover capacity and was approached by Daneilla A. Good, a barmaid. In the course of their conversation, Good requested that Creamer purchase a drink for a dancer-entertainer seated by him (Count 15).
Polk County Sheriff's Department Officer Whitis was again in the licensed premises on February 11, 1982, and engaged in conversation with Robin
K. Stutzman, a dancer-entertainer. During the course of this conversation, Whitis inquired as to the availability of methaqualone, and Stutzman advised that the substance was available. She subsequently sold and delivered four methaqualone tablets to Whitis inside the licensed premises (Counts 16 and 17).
Again on the evening of February 11, 1982, while on the licensed premises, Officer Whitis observed Linda Leanne Marquis, a dancer-entertainer, expose her pubic area while performing a strip tease dance. Whitis observed Marquis remove her clothing and at the conclusion of her dance, briefly expose her pubic area (Count 18).
On February 11, 1982, Beverage Officer Nelson was in licensed premises in an undercover capacity. Nelson was approached by a dancer-entertainer known as "Bell" who asked him to purchase a drink for her (count 21).
On February 11, 1982, Polk County Sheriff's Department Investigator Manatou was in the licensed premises in an undercover capacity. He observed Isabella Marie Arnot, a dancer-entertainer, expose her buttocks area to himself and other patrons by pulling down the back of her entertainer's costume (Count 22).
On the evening of February 11, 1982, Officer Nelson was approached by Isabella Marie Arnot, and during the course of their conversation, Arnot requested Officer Nelson to purchase a drink for her (Count 23).
On February 17, 1982, Beverage Officer Cahoon was in the licensed premises in an undercover capacity. He inquired of Isabella Marie Arnot, a dancer-entertainer, as to the availability of methaqualone. She advised methaqualone was available and subsequently sold and delivered three methaqualone tablets to Cahoon (Counts 24 and 25).
On February 17, 1982, Polk County Sheriff's Department Undercover Officer Whitis inquired of Connie Frances Margotta, a dancer-entertainer, as to the availability of methaqualone. Margotta replied that methaqualone was available and subsequently sold and delivered one methaqualone tablet to Whitis (Counts 26 and 27).
On that same evening, February 17, 1982, Polk County Sheriff's Department Undercover Officer Whitis inquired of Isabella Marie Arnot, a dancer- entertainer, as to the availability of methaqualone. Arnot replied that methaqualone was available and subsequently sold and delivered three methaqualone tablets to Whitis (Counts 30 and 30A).
On February 19, 1982, Polk County Sheriff's Department Undercover Officer Walker was in the licensed premises in connection with this investigation. He engaged in conversation with a woman identified as Tammy Hobbs, and inquired as to the availability of amphetamines. Hobbs stated that such was available and subsequently sold and delivered amphetamines to Walker in the licensed premises. There was no showing of any relationship between Hobbs and the Respondent (Counts 31 and 32).
On the same evening, February 19, 1982, Polk County Sheriff's Department Undercover Officer Walker was approached by Sandra Delores Moor, a dancer-entertainer. In the course of their conversation, Moor offered to perform a sexual act with Walker for $45.00 (Count 33).
On the same evening, February 19, 1982, Polk County Sheriff's Department Undercover Officer Manatou was at the licensed premises. He observed Robin K. Stutzman, a dancer-entertainer, performing a strip tease dance. At the conclusion, Stutzman exposed her pubic area to patrons by removing her hands and a feather boa from in front of her pubic area (Count34).
On February 24, 1982, various officials of local and state law enforcement agencies met at the licensed premises for the purpose of executing arrest warrants. In conjunction with these arrests, Petitioner's Beverage Officers conducted a licensed premises inspection. During the course of this inspection, Teresa Okerstrom Crisp, a dancer-entertainer, was found to be in possession of cannabis. The cannabis was located in Crisp's purse, which was in her locker inside the dressing area of the licensed premises. However, the search of her purse was made with neither her permission, nor a warrant or probable cause (Count 37).
CONCLUSIONS OF LAW
Possession, sale or delivery of methaqualone is prohibited by Sections 893.02(2)(c) 5 and 893.13(1)(a) 2, Florida Statutes (F.S.). Possession, sale or delivery of methamphetamine is prohibited by Sections 893.03(2)(c) 1 and 893.13(1)(a) 2, F.S. Possession, sale or delivery of marijuana (cannabis) is prohibited by Sections 893.03(1)(c) and 893.13(1)(a), F.S. It is also unlawful for any person to keep or maintain a place which is resorted to by persons for the purpose of keeping, selling or delivering illicit drugs pursuant to Sections 823.10 and 893.13 (2)(a) 5, F.S.
Requesting or soliciting a beverage, alcoholic or otherwise, by an employee, agent or servant of a beverage licensee is prohibited when such beverage is requested or solicited from a customer or patron of the licensed premises. Section 562.131(1), F.S.
Petitioner is authorized to revoke or suspend the beverage license for violations of state law committed on the licensed premises by the licensee or his agents, servants, or employees. Section 561.29(1)(a), F.S. (1981).
Section 561.29(1)(a), F.S., has 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. 1/ 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. 2/
Petitioner demonstrated that the dancer-entertainers identified in the Amended Administrative Complaint/Notice to Show Cause were agents, servants or employees of Respondent within the meaning of Subsection 561.29(1)(a), F.S. These individuals were hired to entertain customers under Respondent's control and supervisor, and their job applications and work schedules were introduced as evidence of such employment.
Petitioner demonstrated that four dancer-entertainers possessed and sold controlled substances to investigators on five occasions as charged in Counts 1, 2, 16, 17, 24, 25, 26, 27, 30 and 30A. Although there was no showing that Respondent knew of this illegal activity, this is the sort of persistent and recurring conduct which renders Respondent culpably responsible.
Petitioner demonstrated that a dancer and a barmaid solicited beverages from investigators on five occasions as charged in Counts 6, 12, 15,
21 and 23. There was no showing that Respondent was aware of this activity, but its persistent and recurring nature renders Respondent culpably responsible.
There was one direct offer of prostitution as charged in Count 23. However, this was a relatively isolated incident. Since there was no showing that Respondent knew of this offer or condoned such conduct, Respondent cannot be held responsible.
There were five instances of dancers exposing their pubic areas or buttocks as charged in Counts 3, 14, 18, 22 and 34. However, the Polk County Ordinance, which is alleged to prohibit such acts, was not produced nor was official notice requested. See Subsection 90.202(10), F.S. Therefore, these charges must be dismissed.
Petitioner voluntarily dismissed Counts 4, 5, 9, 10, 11, 13, 20, 28, 29, 35 and 36, and introduced no evidence in support of Count 19. The evidence supporting Counts 7, 8, 31 and 32 was insufficient to support these charges.
Count 37 was voluntarily dismissed except for that portion pertaining to cannabis possession. Since the cannabis was discovered through an improper search, this portion must also be dismissed.
Count 38 charges Respondent with keeping a place habitually visited for the unlawful use and exchange of controlled substances. Although there was evidence of illegal drug traffic, there was no showing that such activity was open or notorious. Therefore, Respondent cannot be held accountable on a nuisance theory, and this charge must be dismissed.
That Petitioner enter a Final Order finding Respondent guilty as charged in Counts 1, 2, 6, 12, 15, 16, 17, 21, 23, 24, 25, 26, 27, 30 and 30A of the
Amended Administrative Complaint/Notice to Show Cause, and suspending Respondent's alcoholic beverage license for a period of 45 days.
DONE and ENTERED this 18th day of January, 1983, in Tallahassee, Florida.
R. T. CARPENTER Hearing Officer
FILED with the Clerk of the Division of Administrative Hearings this 18th day of January, 1983.
1/ 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).
John A. Boggs, Esquire Department of Business Regulation
Robert A. Young, Esquire Post Office Box 428 Bartow, Florida 33830
Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco
Gary R. Rutledge, Secretary Department of Business Regulation
