STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF ALCOHOLIC ) BEVERAGES AND TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 83-2564
)
SKYLIGHT CORPORATION D/B/A )
THE BLUE ROOM LOUNGE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this matter before Marvin
Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on August 18, 1983, in Tampa, Florida.
APPEARANCES
For Petitioner: James N. Watson, Jr., Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Mr. Samuel Williams
3513 Rivergrove Drive Tampa, Florida
ISSUE
This case concerns the issue of whether the Respondent's beverage license should be suspended, revoked, or otherwise disciplined for maintaining a licensed premises where illegal drugs are sold and solicitations for prostitution take place.
At the formal hearing, the Petitioner called as witnesses Carol Houston, Michael Collins, Chester L. Copeland, Vincent Rodriguez and John T. Allen.
Petitioner offered and had admitted into evidence six exhibits. Respondent offered and had admitted into evidence one exhibit. Mr. Samuel Williams testified on behalf of Respondent.
FINDINGS OF FACT
The Respondent holds and at all times material to this action held beverage license No. 39-684, Series 4-COP. The licensed premises under that license is located at 2801 Nebraska Avenue, Tampa, Florida. Mr. Samuel Williams is president of the Respondent, Skylight Corporation, and owns 60 percent of the stock of that corporation.
On the evening of July 27, 1983, Beverage Officer Carol Houston went to the licensed premises, The Blue Room Lounge, to conduct an undercover investigation. Upon entering the lounge Officer Houston took a seat at the bar and ordered a drink. After the shift change, Officer Houston talked to Brenda Brock, the bartender on duty. Officer Houston told Ms. Brock she liked to get high and asked if there was anyone in the bar from whom she could buy "reefer". Reefer is a street or slang term for marijuana or cannabis. Brenda Brock told Officer Houston that the person who usually sells reefer wasn't in the lounge at that time. Ms. Brock also related that she was high herself and had smoked a joint before coming on duty.
When Officer Houston had entered the bar, Officer Michael Collins of the Tampa Police Department was already present in the lounge. Officer Collins, also working undercover, asked Brenda Brock where he would purchase some marijuana. When he asked Ms. Brock this question, she pointed out a black male named Chunky and said that he sold marijuana. Officer Collins then asked Brenda Brock to get Chunky for him and she did. The young male named Chunky approached Officer Collins and said he didn't have any marijuana but would have some later. At some time later in the evening, a young black male named Ace entered the lounge and Brenda Brock pointed to him and said to Officer Collins "that's him." Ace walked over to Officer Collins and asked if he was the guy looking for some marijuana. Officer Collins told him that he was but that he had promised to buy from someone else. Ace then asked Brenda Brock to verify to Officer Collins that he had been sent by Chunky and Brenda Brock said that he had in fact been sent by Chunky. As Ace had walked up to Officer Collins, he had three plastic bags of marijuana (cannabis) in his hands. He sold one of these bags to Officer Collins.
Ace then sold a second bag of marijuana to a woman named Celeste who was sitting next to Officer Collins. Celeste was the bartender who had been relieved by Brenda Brock. Celeste purchased a $5 bag of marijuana from Ace and the exchange took place in the open and was observed by Officer Collins.
After making the sales to Officer Collins and to Celeste, Ace approached Beverage Officer Houston who was still seated at the bar in a different area than Officer Collins and Celeste. He asked Officer Houston if she wanted to purchase some marijuana. She said yes and further stated that she wanted a $5 bag. He handed her a plastic bag containing marijuana and Officer Houston laid it on the bar in the open. Brenda Brock walked over and told her to put the bag up. Officer Houston then placed the bag of marijuana in her purse. Officer Houston then asked Brenda Brock if she had any papers she could use to roll a "joint". A joint is a slang term or street term referring to a marijuana cigarette. Brenda Brock said she did not have any papers. The purchase by Officer Houston of the marijuana took place in the open and was observed by Officer Collins from a different area of the bar.
Later in the evening of July 27, 1983 two white females came into the lounge. Brenda Brock pointed to them and said those two ugly bitches called themselves prostitutes. At the time that the purchases of marijuana were made by Officer Collins, Celeste and Officer Houston, Brenda Brock was on duty as bartender and made no effort to stop the transactions. Mr. Samuel Williams had been in the lounge earlier in the evening, but was not present in the lounge when the marijuana transactions took place.
On July 28, 1983, Officer Houston returned to the licensed premises approximately 7:00 p.m. When she arrived Samuel Williams was present in the
lounge. Mr. Williams was talking with two men seated at the bar and was overheard by Officer Houston to say that before he would have those two prostitutes on the phone all night, he would have it taken out.
Brenda Brock was the bartender on duty that evening and Officer Houston asked her if Ace was around. Ms. Brock replied that no one was around who had any reefer. Officer Houston left the lounge approximately 8:30 p.m. and returned at approximately 11:30 p.m. Upon entering, she ordered a drink from Brenda Brock and asked Ms. Brock if Ace had been back in because she wanted to get some reefer now. Ms. Brock replied that he was in the lounge and that she would get him for her. Shortly thereafter, Ace came over and asked Officer Houston what she wanted. She told him she wanted some reefer. Ace then walked away and shortly returned with a plastic bag containing marijuana. Officer Houston handed Ace a $20 bill and because Ace indicated he had no change, Officer Houston handed the $20 bill to Brenda Brock who gave her two $5 bills and one $10 bill as change. Officer Houston then handed a $5 bill to Ace as payment for the bag of marijuana.
Also on the evening of July 28, 1983, while Officer Houston was seated at the bar, Brenda Brock told her a gentleman wanted to speak to her. The gentleman was Officer Collins, also working undercover. Officer Houston walked over and spoke to him briefly and the two of them returned to where Officer Houston had been seated in front of the cash register. There they discussed the price of a "date". A date is a common palance or street term for a sexual encounter for money or prostitution. A "date" is also referred to as a "trick". After agreeing upon a price, Officer Houston handed her purse and drink to Brenda Brock and asked Ms. Brock to hold them while she went outside to do a trick. Brenda accepted the purse and drink and Officer Houston left the bar with Officer Collins. Approximately 20 minutes later, Officer Houston returned and Brenda Brock gave her back her purse and her drink. At no time did Brenda Brock object to or inquire about Officer Houston's activities.
On July 30, 1983, Beverage Officer Houston returned to The Blue Room Lounge at approximately 5:30 p.m. She entered the lounge and took a seat at the bar and ordered a drink from Brenda Brock who was on duty as bartender. While she was seated at the bar a young black female came up and asked her if she wanted to buy some reefer. Officer Houston had seen this young woman in the bar previously. She told her she did not want to buy any marijuana and after the young woman left she asked Brenda Brock who the young woman was. Brenda Brock said she was Ace's sister and in response to Officer Houston's questions, indicated that it was alright to buy reefer from her.
Later that evening Ace came in and asked Officer Houston if she wanted to buy some marijuana. She told him that she had met his sister and Ace then called the young black female over and introduced her to Officer Houston as his sister. Officer Houston told Ace that she wanted to buy a $5 bag of marijuana. Ace then went over to his sister and brought back a clear plastic bag of marijuana. Officer Houston handed him a $20 bill and he indicated he did not have change. She then obtained change for the $20 bill from Brenda Brock and handed $5 of the change to Ace. Brenda Brock was standing right in front of her at the bar when she handed Ace the $5.
In the early morning hours of July 30, 1983, just after midnight, Beverage Officer Hamilton entered the The Blue Room Lounge. He came over and talked with Officer Houston about a "date". While they haggled over a price Brenda Brock was seated directly across the bar from Beverage Officer Houston. After agreeing upon a price for the date, Officer Houston handed her purse to
Brenda Brock and asked her to hold it while she did this trick. Brenda Brock took the purse and agreed to hold it. Beverage Officer Houston then left the lounge with Officer Hamilton. A few minutes later Beverage Officer Houston returned to the bar and Brenda Brock gave her her purse and put the drink which she had been drinking back on the bar.
On August 1, 1983, Officer Houston returned to the licensed premises at approximately 9:30 p.m. She took the same seat near the cash register where she had sat on the previous evenings. Ace was present in the lounge. Officer Houston asked Brenda Brock to ask Ace to bring her a dime bag of marijuana. (A dime bag is a $10 bag. Brenda Brock went over to Ace and Ace then approached Officer Houston and asked her how much she wanted. At that time Officer Houston asked him if he could sell her some cocaine. He said he didn't have any but would have some later. Officer Houston then purchased two bags of marijuana from Ace for which she paid him $10. She handed him a $20 bill and he gave her
$10 in change and when this exchange took place, Brenda Brock was in the area nearby on the other side of the bar.
Officer Collins also went to the licensed premises on August 1, 1983 at approximately 10:55 p.m. After entering the lounge he told the barmaid, Brenda Brock, that he wanted to buy some good marijuana. She signaled to Ace and Ace came over to her. She whispered to Ace. Ace had walked up with a bag of marijuana already in his hand and after speaking with Brenda Brock he walked over and sold the bag of marijuana to Officer Collins for $5. Brenda Brock never objected to discussions regarding drugs or refused to get involved. There were no signs in the bar saying "No Drugs, No Loitering, No Prostitution", or signs with rules of management.
On the evening of August 1, 1983, Officer Chester L. Copeland of the Tampa Police Department was also in the licensed premises in an undercover capacity. While standing at the bar Officer Copeland talked with Brenda Brock and asked her if Carol Houston was "dating". Brenda Brock said she didn't know. Ms. Brock then walked over and whispered something to Carol Houston and then returned to where Officer Copeland was standing and informed him that Carol was "dating". Officer Copeland then went over to Officer Houston and conversed with her about the price of a date. Brenda Brock was standing nearby during this conversation and made no objection to the discussion. After agreeing on a price Officer Houston handed her purse to Brenda Brock and left the lounge with Officer Copeland.
Officer Collins also present in the lounge, observed Officer Houston and Officer Copeland leave the lounge together. Prior to this occasion Officer Collins had asked Brenda Brock if Officer Houston dated. Ms. Brock had indicated she didn't know and he had told her to go ask. She did go ask Officer Houston and came back and informed Officer Collins that she did date. Officer Collins then asked Ms. Brock the price of a date and she said she didn't know. Officer Collins asked her to go ask. Ms. Brock walked over and spoke with Officer Houston and came back and said the price was $50. On this particular evening of August 1, 1983, after he observed Officer Houston and Officer Copeland leave the bar, Officer Collins asked Brenda Brock if Officer Houston was coming back. Ms. Brock said she didn't know. Officer Collins then asked her if Carol (Officer Houston) was out on a date and Brenda Brock replied that she thought so. On each of the occasions that Officer Collins discussed prostitution with Brenda Brock he instituted the conversation, but Ms. Brock freely discussed it and made no objection to the discussions. Shortly after she had left with Officer Copeland, Carol Houston returned to the licensed premises.
Officer Collins then approached her and talked about a "date". After a short discussion he and Officer Houston left the bar together.
On August 3, 1983, Officer Houston again returned to the licensed premises at approximately 10:30 p.m. She took a seat at the bar directly in front of where Brenda Brock was working as bartender. Seated near her at the bar was a latin male who kept asking her to come over. After she had been there a short time, Brenda Brock came over to Officer Houston and said that the latin male wanted to know how much she charged for a date. Officer Houston did not respond and Brenda Brock shouted to the latin male $100. A short time later Brenda Brock came back over to Officer Houston and said that the latin male said he had some cocaine. Officer Houston then told the latin male in a loud voice that he better also have lots of money. That same evening Brenda Brock also told Officer Houston that another male, Officer Collins, wanted a date and had some cocaine.
On the evening of August 3, 1983, Officer Copeland also entered the licensed premises. While seated at the bar, Officer Copeland met the young man named Ace. Ace came over and asked if he wanted to buy a $5 bag of reefer. He indicated that he did and gave Ace $5, and Ace handed him a plastic baggie of marijuana.
On August 9, 1983, Officer Houston entered the licensed premises approximately 10:30 p.m. She took a seat at the bar, ordered a drink, and asked Brenda Brock, the bartender on duty, if Ace was around. Brenda Brock indicated that he was over at the Pac-Man machine but he had left the lounge. Later Ace came in and Brenda Brock said "there he is" to Officer Houston. Ace came over to Officer Houston and said he had some cocaine and asked if she still wanted to buy some. She asked now how much it would cost. Ace indicated he had "nickel" ($5) pieces. Ace stated that it was back at his room and he left and then returned with a small foil pack. Officer Houston gave Ace $5 and he handed her the small foil pack. The small foil pack contained cocaine, a controlled substance under Section 893.03, Florida Statutes. That same evening Officer Houston observed two black males rolling some type of cigarette. She observed a plastic bag containing material similar to marijuana. She observed Brenda Brock obtain some rolling papers from behind the bar and hand them to the two males.
On August 10, 1983, Officer Houston entered the licensed premises approximately 10:00 p.m. Ace was not in the lounge when she arrived, but approximately 10:15 p.m. Ace entered the lounge and came over and asked if she wanted to buy some "coke". "Coke" is a slang or street term for cocaine. She said she would like to buy some and he said he would have it later. At approximately 11:30 p.m., Ace came over to Officer Houston and stated that he had coke. Officer Houston told him that she wanted two hits and she then bought two foil packs from Ace. Officer Houston gave Ace a $20 bill but he had no change. She then handed the $20 bill to Brenda Brock who gave her change. She paid $10 for the two foil packs which contained cocaine.
That same evening a black male was seated at the bar smoking a marijuana cigarette. Brenda Brock who was the bartender on duty stated "Do I smell dope?" She then looked at the male smoking the marijuana cigarette, but made no effort to stop him.
On August 11, 1983, Officer Houston was again on the licensed premises. While seated at the bar, Officer Houston observed a white female smoking what appeared to be a marijuana cigarette Brenda Brock came over to
Officer Houston and said that the white female had just gotten some reefer and wanted to know if she wanted some. Officer Houston told her that she did not.
Mr. Samuel Williams the president of the Respondent corporation was the manager and owner of the licensed premises. During the time of the charges in this case, Mr. Williams would open the bar in the mornings and remain at the bar all day until the shift change at approximately 7:00 or 7:30 p.m. He was not present in the bar when the various transactions took place and was generally not present in the bar in the evening. A Mr. Raifield had been hired by him to manage the bar at night. However, Mr. Raifield had been terminated shortly before the transactions which are the subject of this case.
Brenda Brock had become a full-time bartender on July 26, 1983. Prior to that time she had worked part-time and Mr. Williams had no indication that she used drugs or allowed other people to use drugs or solicit for prostitution on the licensed premises. At no time was Mr. Williams aware that Brenda Brock was permitting drug transactions and solicitations for prostitution to take place in the licensed premises.
There is a substantial prostitution problem in the Nebraska Avenue area where the licensed premises is located. Mr. Williams has been active in civic attempts to eliminate the prostitution from this area. Within a year of the charges which are the subject of this case, Mr. Williams' life was threatened by a pimp operating along Nebraska Avenue and the tires and convertible top of his car were slashed. One of the reasons that Mr. Williams was not in the lounge in the evening was because he had been advised by the police that it would be safer for him to not be in the lounge in the evenings. This occurred following the threat on his life. Mr. Williams had no policy of random visits or inspections to the lounge in the evenings.
There have been no prior complaints or charges brought against the Respondent's license.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding.
Section 561.29(1)(a), Florida Statutes (1981), empowers the Division of Alcoholic Beverages and Tobacco to revoke or suspend an alcoholic beverage license if it finds that the licensee or his agents, servants, or employees are permitting another on the licensed premises to violate any of the laws of this state or of the United States. Section 561.01(11), Florida Statutes (1981), defines the term "licensed premises" to include the building area where alcoholic beverages are served and the area embraced within the sketch of the premises attached to the license application. Based upon the evidence, the licensed premises in the instant case is limited to the lounge itself.
A beverage license may be disciplined by the Division if the licensee is found guilty of "maintaining a nuisance on the licensed premises." Section 561.29(1)(c), Florida Statutes (1981). Section 823.10, Florida Statutes, declares a place or building where controlled substances are illegally kept, sold, or used to be a nuisance.
Section 893.13(2)(a)(5), Florida Statutes, makes it unlawful for any person:
To keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for keeping or selling them in violation of this chapter.
A violation of this section also constitutes a violation of the Beverage Law through Section 561.29(1)(c), Florida Statutes.
Cannabis is a controlled substance and it is a violation of state law to sell, use, deliver, or possess it. Section 893.13, Florida Statutes (1981). Cocaine is a controlled substance and it is a violation of state law to sell, use, deliver, or possess it. Section 893.13, Florida Statutes (1981).
Negotiating a sale of a controlled substance or acting as a go between and arranging such a drug transaction is a violation of Florida law and will subject a person committing such acts to a conviction under the criminal laws of Florida. Nadjawski v. State, 371 So.2d 554 (Fla. 2d DCA 1979); State v. Hubbard, 328 So.2d 465 (Fla. 2d DCA 1976); State v. Dent, 322 So.2d 543 (Fla. 1975). Section 776.011, Florida Statutes.
Section 796.07, Florida Statutes (1981), makes it a violation of the criminal laws of Florida to keep or operate a place for the purpose of assignation or prostitution, to agree to secure another for the purpose of prostitution, to receive or agree to receive any person into a place for purposes of assignation or prostitution, or to permit any person to remain there for such purpose, or to aid, abet, or participate in the doing of any of the acts prohibited by subsections (2) and (3) of Florida Statute 796.07.
Section 823.05, Florida Statutes, declares that any house or place of prostitution, assignation, or lewdness is deemed to be a public nuisance. Section 823.01, Florida Statutes, declares such public nuisance to be a violation of the criminal laws of the State of Florida.
In order to discipline Respondent's license, the Division of Alcoholic Beverages and Tobacco must prove the Respondent was culpably responsible for the violations alleged; that he is guilty either of intentional wrongdoing, or of condoning wrongdoing, for failing to exercise due diligence in supervising and maintaining surveillance over the licensed premises. See, e.g., Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979); Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962); Golden Dolphin II v. State of Florida, Division of Alcoholic Beverages and Tobacco, 403 So.2d 1372 (Fla. 5th DCA 1981); G. & B. of Jacksonville, Inc. v. State, 371 So.2d 137 (Fla. 1st DCA 1979).
The evidence in the instant case establishes each of the charges set forth in the Notice to Show Cause. The facts reveal persistent and recurring illegal activity in the form of drug sales, drug use, and solicitation for prostitution. In each of the drug transactions, an employee of the Respondent corporation acted either as a go-between or provided information which ultimately led to the drug sale. The employee not only participated in
arranging the transactions, but actually encouraged the purchases on some occasions. At no time did the employee, Brenda Brock, make an attempt to stop or hinder in any way the open drug sales being made by the young man name Ace inside the licensed premises. There was no attempt on the part of Ace to conceal his drug activity and such open and blatant drug activity reveals an atmosphere created by the management of the licensed premises which was conducive to such illegal activity. These transactions occurred in the evening when the manager, Mr. Samuel Williams, was not present on the licensed premises and no other responsible representative of the licensee corporation was present to supervise and control the employees. There was also no system of random inspection or observation used to monitor the activities of the employees and patrons in the manager's absence. The licensee failed to use due diligence and was negligent in its supervision of its employees and the licensed premises. It was this negligence and failure to supervise that permitted the drug transactions to take place and created a haven for persons dealing in illegal drugs.
The evidence with regard to prostitution was very similar to that relating to the drug activity. Not only did Brenda Brock, the bartender, not attempt to prevent solicitation for prostitution in the lounge, she actually acted as a go between and encouraged the solicitations for prostitution. She at no time attempted to have Officer Houston removed from the licensed premises and at no time objected to her very blatant and open undercover prostitution activity. Again, it was the licensee's failure to properly supervise and to exercise due diligence that created an atmosphere which allowed such open and blatant solicitation for prostitution to take place.
The facts show recurring and persistent activity. Failure of the Respondent to properly monitor and supervise his premises created a haven for persons to approach patrons and strike illegal drug deals on a frequent and regular basis. It also created a haven for prostitutes and persons soliciting for prostitution. This case is closely analogous to that in Pauline v. Lee, supra, where the court stated:
The persistence and practiced manner with which the solicitations described by the state's witnesses were made is sufficient to permit a factual inference leading to the conclusion that such violations of law were either fostered, condoned or negli- gently overlooked by the licensee, notwith- standing his absence from the premises on the dates in question. Pauline v. Lee, supra, at 364.
Applying that same logic to the instant case, the Respondent should be found guilty of the violations as charged in the Notice to Show Cause. These constitute a violation of Section 56l.29(1)(a), Florida Statutes (1981). By these violations, the Respondent has also violated Section 561.29(1)(c), Florida Statutes (1981), by maintaining a nuisance on the licensed premises.
Penalty. License revocation is an extreme and drastic penalty which should be applied only in the most flagrant cases. Taylor v. State Beverage Department, 194 So.2d 321 (Fla. 2d DCA 1967). Here, the Respondent is guilty of negligence. He was not aware of the various illegal transactions taking place and had no prior warning or any information which would lead him to believe that his employee, Brenda Brock, would allow such transactions to take place. It was
his absence and negligent failure to properly supervise his employees and the licensed premises that enabled the illegal transactions to take place. In mitigation, it should be noted that Mr. Williams, the president of the Respondent corporation has been active in trying to eliminate the prostitution and other illegal activities in the Nebraska Avenue area where the licensed premises is located. His absence from the licensed premises was due in part to fear on his part for his own physical well being. The licensee has had no prior charges or complaints of any kind against its license. The lounge in question is the sole source of support for Mr. Samuel Williams and his wife.
Accordingly, it is concluded that a civil penalty of $1,000 and a sixty-day suspension of Respondent's beverage license is warranted and appropriate.
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That a Final Order be entered finding the Respondent in violation of Section 561.29, Florida Statutes, and imposing a civil penalty of 1,000 and suspending Respondent's beverage license for a period of sixty (60) days.
DONE and RECOMMENDED this 1st day of September, 1983, in Tallahassee, Florida.
MARVIN E. CHAVIS, 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 September, 1983.
COPIES FURNISHED:
James N. Watson, Jr., Esquire Department of Business
Regulation
725 South Bronough Street Tallahassee, Florida 32301
Mr. Samuel Williams 3513 Rivergrove Drive Tampa, Florida
Mr. Howard M. Rasmussen Director of the Division of Alcoholic Beverages & 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 |
|---|---|
| Sep. 01, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 01, 1983 | Recommended Order | Impose $1000 civil penalty and suspend license for sixty days for negligence in managing bar and allowing a public nuisance there in form of drugs and prostitution. |
