STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-388

) C & A LOUNGE, INC., d/b/a ORANGE ) TREE LOUNGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, conducted a formal hearing in this case on April 19, 1983, in Lauderhill, Florida.

APPEARANCES

For Petitioner: John A. Boggs, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Sy Chadroff, Esquire

and Lane Abraham, Esquire

200 Southeast First Street, Suite 800 Miami, Florida 33131

ISSUE

Whether respondent's alcoholic beverage license should be disciplined for five solicitations of alcoholic beverages; two solicitations for purpose of prostitution, assignation, or lewdness; and one incident of gross, lewd, and lascivious behavior allegedly committed on the licensed premises by respondent's employees.

BACKGROUND

By administrative complaint dated September 29, 1982, petitioner Division of Alcoholic Beverages and Tobacco ("DABT") charged respondent C & A Lounges, Inc. d/b/a Orange Tree Lounge ("respondent") with multiple violations of the Florida Beverage Law. Specifically, DABT charged that, on August 26, 1982, respondent's employees committed five solicitations of alcoholic beverages, two solicitations for purposes of prostitution, assignation, or lewdness, and one gross, lewd, and lascivious act. Respondent disputed the charges and requested a hearing.

On February 3, 1983, DABT forwarded this case to the Division of Administrative Hearings for assignment of a Hearing Officer. Hearing was set for March 17-18, 1983, then-- on respondent's unopposed motion--was continued and reset for April 19, 1983.

At hearing, DABT presented the testimony of Broward County Deputy Sheriff Michael Berk, Beverage Officer David Shomers, and Beverage Officer Richard A. Boyd. DABT Exhibit Nos. 1 and 2 were received into evidence. The respondent presented no Witnesses or documentary evidence.

DABT filed proposed findings of fact by May 9, 1983. No transcript of the hearing has been filed.

Based on the evidence presented, the following facts are determined: FINDINGS OF FACT

1. Respondent holds alcoholic beverage license no. 16-2052, Series 2-COP and operates under the name of "Orange Tree Lounge" at 3919 South State Road 7, Hacienda Village, Florida. Robert Cable and Joseph Ateek own the stock of the respondent corporation. They also own the Joyro Corporation, which operates as the Peach Tree Lounge under alcoholic beverage license no. 16-2339, Series 2- COP.

   
   

2. Prior to June 26, 1982, when respondent received its license, Robert Cable held the alcoholic beverage license in individual capacity. He operated under the same name (Orange Tree Lounge) and at the same location as does the corporate respondent.

   
   

3. On August 26, 1982, Beverage Officer David Shomers and Broward Sheriff's Deputy Michael Berk entered respondent's premises at approximately 7:40 P.M.

   
   

4. While seated at the bar, Officer Shomers overheard a bartender and various dancers discussing money owed to the dancers by the bar (respondent's premises) for drinks purchased them by customers. After referring to a spiral notebook, the bartender handed money to the dancers.

   
   

5. At approximately 8:15 P.M., the back room of the bar opened; Officer Shomers and Deputy Berk entered and sat at a table. Mary Jane Rowe, a dancer employed by the respondent, approached the table and a conversation ensued. Ms. Rowe said to Officer Shomers, "Buy me a bottle of champagne and I'll sit on your face."

   
   

6. Mary Jane Rowe, sat at the table, bent over Officer Shomers' lap and licked the fly of his trousers. After he pushed her away, she stood up, raised her blouse to her neck and pulled her jeans down, exposing her pubic area. She then grasped his face and attempted to place it between her breasts. After he pushed her away, again, she sat down.

   
   

7. At approximately this time Gail Carbani, another dancer at respondent's premises, joined Deputy Berk, Officer Shomers and Ms. Rowe. Ms. Rowe then asked Shomers to buy her (Rowe) a bottle of champagne, explaining that they could go to another table where she would take care of Shomers' sexual needs. During a portion of this conversation, Marie Thompson, a waitress approached the table. Shomers asked her the price of champagne. Ms. Thompson replied it was $60.00; he declined to purchase any. Soon thereafter, Ms. Rowe asked Ms. Thompson (who

   was across the room) "Where the hell is my champagne?" Thompson yelled back, "He told me to forget it, he didn't want to buy you any."

   
   

8. At approximately this time Ms. Carbani asked Deputy Berk to purchase her (Carbani) a bottle of champagne; he did. Carbani advised Berk that she danced at both the Orange Tree Lounge and the Peach Tree Lounge.

   
   

9. Ms. Rowe then again asked Shomers to buy her (Rowe) champagne saying, "If you buy a $100.00 bottle of champagne, we can go in the back room and have some real fun." She also told Shomers that the "real fun" meant "fuck."

   
   

10. She grasped his penis through his pants and said the back room was busy at the moment, indicating a red light (which was lit) on the ceiling near the door of the back room. He asked her what was necessary to use the back room. She told him to ask waitress Thompson. Ms. Thompson told him, "If you want to use the back room, first you will have to buy two more bottles of champagne for the girls."

    
    

11. During Officer Shomers' conversation with Ms. Rowe and Ms. Thompson regarding the back room, Ms. Carbani asked Deputy Berk to buy her "another [2nd] bottle of champagne" which he did. She also told Deputy Berk that if he bought her the champagne they could "go in the back room" if he gave the waitress a "tip." Ms. Carbani added that she would "fuck and suck" him in the back room for

    $50.00.

    
    

12. Shortly thereafter, Deputy Berk left the bar, summoned backup officers and, with their assistance, placed Ms. Rowe, Ms. Carbani and Ms. Thompson under arrest.

    
    

13. When Robert Cable operated the Orange Tree Lounge in an individual capacity in 1981, DABT charged him with five (5) counts of solicitation of beverages by his agents (dancers or bartenders) in DABT Case No. 33868. These cases were disposed of when Cable paid a $2,000 civil penalty.

    
    

14. As shareholders and owners of the Peach Tree Lounge, Robert Cable and Joseph Ateek, were charged in DABT Case No. 33867 with one solicitation of prostitution and solicitation of beverages by an agent of respondent named Gail. (It is noted that Carbani's first name is Gail and that she told Berk that she (Carbani) danced at the Peach Tree Lounge.) These charges were disposed of when Joyro, Inc. paid a $1,000.00 civil penalty.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Fla.Stat. (1981).

    
    

16. Section 561.29(1)(a), Florida Statutes (1981) authorizes DABT to suspend or revoke an alcoholic license when the licensee, or its agents, officers, servants, or employees, while in the scope of employment and on the licensed premises, violate any of the laws of this state.

    
    

17. License revocation proceedings, such as this, are penal in nature.

    The prosecuting agency must prove its charges by clear and convincing evidence-- by evidence as substantial as the consequences. See, Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966); Walker v. State, 322 So.2d

    612 (Fla. 2d DCA 1975); Bowling v. Dept. of Insurance, 394 So.2d 165, 172 (Fla.

    1st DCA 1981).

    
    

18. The evidence convincingly establishes that, on August 26, 1982, Mary Jane Rowe, Gail Carbani, and Marie Thompson were employees of respondent and that, Mary Jane Rowe twice solicited beverages from Officer Shomers contrary to Section 562.131(1); Gail Carbani twice solicited beverages from Deputy Berk, contrary to Section 562.131(1); Marie Thompson solicited beverages from Officer Shomers, contrary to Section 562.131(1); Mary Jane Rowe, three times, offered to commit prostitution with Office Shomers, in violation of Section 796.07(3); Gail Carbani offered to commit prostitution with Deputy Berk in violation of Section 796.07(3); and Mary Jane Rowe engaged in gross, lewd, and lascivious behavior toward Officer Shomers in violation of Section 798.02, Florida Statutes (1981)

    
    

19. But Section 561.29 does not make a licensee an insurer of its employees. To discipline a license, the licensee must be shown to have been culpably responsible for the violations of law committed on its premises. Persistent, practiced, or repeated violations are sufficient to support an inference that the violations were fostered, condoned, or negligently overlooked by the licensee. And such an inference supplies a basis for revocation. See, Pauline v. Lee, 147 So.2d 359, 364 (Fla. 2d DCA 1962), cert. den. 156 So.2d

    389 (Fla. 1963); Lash, Inc. v. Department of Business Regulation, 411 So.2d 276 (Fla. 3rd DCA 1982); Bach v. Florida State Board of Dentistry, 378 So.2d 34, 36 (Fla. 1st DCA 1979). Here, it has been shown that the respondent violated Section 561.29(1)(a) by fostering, condoning, or negligently overlooking the violations of its employees on the premises. These violations were open and flagrant, repeated and persistent, and occurred in a practiced manner. The respondent was on notice that such violations were possible, even likely, to occur on his premises. Its corporate officers had operated other bars where similar charges had been brought and resolved by payment of fines.

    
    

20. Penalty. The respondent repeatedly violated the Florida Beverage Law. No extenuating or mitigating evidence has been presented. Revocation of its license is warranted.

    
    

21. DABT filed proposed findings of fact which, to the extent they are incorporated herein, are adopted; otherwise they are rejected as unsupported by she evidence or unnecessary to resolution of the issue presented.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That respondent's alcoholic beverage license no. 16-2052, Series 2-COP be revoked for multiple violations of the Beverage Law.

DONE and ENTERED this 23rd day of June, 1983, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 23rd day of June, 1983.

COPIES FURNISHED:

John A. Boggs, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Sy Chadroff, Esquire

and Lane Abraham, Esquire Suite 800

200 S. E. First Street Miami, Florida 33131

Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Howard M. Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

================================================================= 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. 83-388

DABT CASE NO. 33943-A

C & A LOUNGES, INC. d/b/a ORANGE TREE LOUNGE,

Respondent.

/

FINAL ORDER

Pursuant to notice, R.L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, conducted a formal hearing in this case on April 19, 1983, in Lauderhill, Florida.

APPEARANCES

For Petitioner: John A. Boggs, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Sy Chadroff, Esquire and

Lane Abraham, Esquire

200 Southeast First Street, Suite 800 Miami, Florida 33131

ISSUE

Whether respondent's alcoholic beverage license should be disciplined for five solicitations of alcoholic beverages, two solicitations for purposes of prostitution, assignation, or lewdness; and one incident of gross, lewd, and lascivious behavior allegedly committed on the licensed premises by respondent's employees.

BACKGROUND

By administrative complaint dated September 29, 1982, petitioner, Division of Alcoholic Beverages and Tobacco (DABT) charged respondent, C & A Lounges, Inc d/b/a Orange Tree Lounge (respondent) with multiple violations of the Florida Beverage Law. Specifically, DABT charged that, on August 26, 1982, respondent's employees committed five solicitations of alcoholic beverages, two solicitations

for purposes of prostitution, assignation, or lewdness, and one gross, lewd, and lascivious act. Respondent disputed the charges and requested a hearing.

On February 3, 1983, DABT forwarded this case to the Division of Administrative Hearings for assignment of a Hearing Officer. Hearing was set for March 17-18, 1983, then--on respondent's motion--was continued and reset for April 19, 1983.

At hearing, DABT presented the testimony of Broward County Deputy Sheriff Michael Berk, Beverage Officer David Shomers and Beverage Officer Richard A. Boud. DABT Exhibit Mos. 1 and 2 were received into evidence. The respondent presented no witnesses or documentary evidence.

Based on the evidence presented, the following facts are determined: FINDINGS OF FACT

Respondent holds alcoholic beverage license no. 16-2052, Series 2-COP and operates under the name of "Orange Tree Lounge" at 2919 South State Road 7, Hacienda Village, Florida. Robert Cable and Joseph Ateek own the stock of the respondent corporation. They also own Joyro Corporation, which operates as the Peach Tree Lounge under alcoholic beverage license no. 16-2339, Series 2-COP.

Prior to June 26, 1982, when respondent received its license Robert Cable held alcoholic beverage license no. 16-2052, Series 2-COP, in an individual capacity. He operated under the same name (Orange Tree Lounge) and at the same location as does the corporate respondent.

On August 26, 1982, Beverage Officer David Shomers and Broward Sheriff's Deputy Michael Berk entered respondent's premises at approximately 7:40 p.m.

While seated at the bar, Officer Shomers overheard a bartender and various dancers discussing money owned to the dancers by the bar (respondent's premises) for drinks purchased them by customers. After referring to a spiral notebook, the bartender handed money to the dancers.

At approximately 8:15 p.m., the back room of the bar opened; Officer Shomers and Deputy Berk entered and sat at a table. Mary Jane Rowe, a dancer employed by the respondent, approached the table and a conversation ensued. Ms. Rowe said to Officer Shomers, "Buy me a bottle of champagne and I'll sit on your face."

Mary Jane Rowe, sat at the table, bent over Officer Shomers' lap and licked the fly of his trousers. After he pushed her away, she stood up, raised her blouse to her neck and pulled her jeans down, exposing her pubic area. She then grasped his face and attempted to place it between her breasts. After he pushed her away, again, she sat down.

At approximately this time Gail Carbini, another dancer at respondent's premises, joined Deputy Berk, Officer Shomers and Ms. Rowe. Ms. Rowe then asked Shomers to buy her (Rowe) a bottle of champagne, explaining that they could go to another table where she would take care of Shomers' sexual needs. During a portion of this conversation, Marie Thomson, a waitress approached the tale.

Shomers asked her the price of champagne. Ms. Thompson replied it was $60.00; he declined to purchase any. Soon thereafter, Ms. Rowe asked Ms. Thompson (who was across the room) "Where the hell is my champagne?" Thompson yelled back, "He told me to forget it, he didn't want to buy you any."

At approximately this time Ms. Carbini asked Deputy Berk to purchase her (Carbini) a bottle of champagne; he did. Carbini advised Berk that she danced at both the Orange Tree Lounge and the Peach Tree Lounge.

Ms. Rowe then again asked Shomers to buy her (Rowe) champagne saying, "If you buy a $100.00 bottle of champagne, we can go in the back room and have some real fun." She also told Shomers that the "real fun" meant "fuck."

She grasped his penis through his pants and said the back room was busy at the moment, indicating a red light (which was lit) on the ceiling near the door of the back room. He asked her what was necessary to use the back room. She told him to ask waitress Thompson. Ms. Thompson told him, "If you want to use the back room, first you will have to buy two more bottles of champagne for the girls."

During Officer Shomer's conversation with Ms. Rowe and Ms. Thompson regarding the back room, Ms. Carbini asked Deputy Berk to buy her "another [2nd] bottle of champagne" which he did. She also told Deputy Berk that if he bought her the champagne they could "go in the back room" if he gave the waitress a "tip." Ms. Carbini added that she would "fuck and suck" him in the back room for $50.00.

Shortly thereafter, Deputy Berk left the bar, summoned back-up officers and, with their assistance, placed Ms. Row, Ms. Carbini and Ms. Thompson under arrest.

When Robert Cable operated the Orange Tree Lounge in an individual capacity in 1981, DABT charged him with five (5) counts of solicitation of beverages by his agents (dancers or bartenders) in DABT Case No. 22868. These cases were disposed of when Cable paid a $2,000 civil penalty.

As shareholders and owners of the Peach Tree Lounge, Robert Cable and Joseph Ateek, were charged in DABT Case No. 33867 with one solicitation of prostitution and solicitation of beverages by an agent of respondent named Gail. (It is noted that Carbini's first name is Gail and that she told Berk that she (Carbini) danced at the Peach Tree Lounge.) These charges were disposed of when Joyro, Inc. paid a $1,000 civil penalty.

CONCLUSIONS OF LAW

1. Section 561.29(1)(a), Florida Statutes (1981) authorizes DABT to suspend or revoke an alcoholic beverage license when the licensee, or its agents, officers, servants, or employees, while in the scope of employment and on the licensed premises, violate any of the laws of this state.

   
   

2. License revocation proceedings, such as this, are penal in nature. The prosecuting agency must prove its charges by clear and convincing evidence.

   See, Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966); Walker v. State, 322 So.2d 612 (Fla. 2d DCA 1975); Bowling v. Dept. of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).

   
   

3. The evidence convincingly establishes that, on August 26, 1982, Mary Jane Rowe, Gail Carbini, and Marie Thompson were employees of respondent and that, Mary Jane Rowe twice solicited beverages from Officer Shomers contrary to Section 562.131(1); Gail Carbini twice solicited beverages from Deputy Berk, contrary to Section 562.131(1); Marie Thompson solicited beverages from Officer

   Shomers, contrary to Section 562.131(1); Mary Jane Rowe, three times, offered to commit prostitution with Officer Shomers, in violation of Section 796.07(3); Gail Carbini offered to commit prostitution with Deputy Berk in violation of Section 796.07(3); and Mary Jane Rowe engaged in gross, lewd, and lascivious behavior toward Officer Shomers in violation of Section 798.02, Florida Statutes (1981).

   
   

4. To discipline a license, the licensee must be shown to have been culpably responsible for the violations of law committed on its premises. Persistent, practiced, or repeated violations are sufficient to support an inference that the violations were either fostered, condoned, or negligently overlooked by the licensee. And such an inference supplies a basis for revocation. See, Pauline v. Lee, 147 So.2d 359, 364 (Fla. 2d DCA 1962), cert den. 156 So.2d 389 (Fla. 1963); Lash, Inc. v. Department of Business Regulation,

   411 So.2d 276 (Fla. 3d DCA 1982); Bach v. Florida State Board of Dentistry, 378 So.2d 34, 36 (Fla. 1st DCA 1979). Here, it has been shown that the respondent violated Section 561.29(1)(a) by fostering, condoning, or negligently overlooking the violations of its employees on the premises. These violations were open and flagrant, repeated and persistent, and occurred in a practiced manner. The respondent was on notice that such violations were possible, even likely, to occur on his premises. Its corporate officers had operated other bars where similar charges had been brought and resolved by payment of fines.

   
   

5. Penalty. The respondent repeatedly violated the Florida Beverage Law. No extenuating or mitigating evidence has been presented. Revocation of its license is warranted.

ORDER

Based upon the foregoing, it is ORDERED:

That respondent's alcoholic beverage license no. 16-2052, Series 2-COP be REVOKED for multiple violations of the Beverage Law.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of July, 1983.

HOWARD M. RASMUSSEN, DIRECTOR

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

COPIES FURNISHED:

John A. Boggs, Esquire Sy Chadroff, Esquire Lane Abraham, Esquire

R.L. Caleen, Jr., Hearing Officer

R.A. Boyd, Captain

Docket for Case No: 83-000388

Orders for Case No: 83-000388