vs. ) CASE NO. 93-6657
) DAVID W. and MILDRED N. ROMEO ) d/b/a THE FULL MOON, )
Respondents. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell held a formal hearing in this case on March 23, 1994, in Tampa, Florida.
For Petitioner: Richard D. Courtemanche, Jr.
For Respondents: Douglas L. Wilson, Esquire
Whether or not Respondents engaged in conduct violative of the beverages laws by allowing persons to commit or engage in lewd or indecent acts on their licensed premises.
By its Administrative Complaint filed herein signed October 5, 1993, Petitioner seeks to impose disciplinary sanctions against Respondents' beverage license and to impose an administrative fine.
At the outset of the hearing, the parties entered a factual stipulation which obviated the proof of certain undisputed facts.
At the hearing, Petitioner presented the testimony of Darren Norris, Ashley Murray, and Bruce Ashley. Respondents presented the testimony of Robert Lowery, Stephanie Mitchell, Mark Mitchell, Dale Workman, Nan (Dusty) La, Darlene Nonn, Grady Lawhorne, and Respondents, David and Mildred Romeo, testified on their own behalf. Additionally, the parties stipulated that the following witnesses who appeared on Respondent's behalf: John Johnson, Jackie Workman, Wayne Rohlf, Patricia Rohlf, Gail Ward, and Juan Carlos Diaz, would provide substantially the same testimony as those witnesses who provided live testimony.
Petitioner introduced three exhibits and Respondents introduced one exhibit, all of which were received in evidence at the hearing. The parties filed Proposed Recommended Orders which were considered in preparation of this Recommended Order. Petitioner's proposed findings of fact are substantially incorporated herein. Proposed findings of fact which are not incorporated herein are the subject of specific rulings in an Appendix.
Based upon my observation of the witnesses and their demeanor while testifying, documentary evidenced received and the stipulation of the parties, I hereby make the following relevant:
Petitioner, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the regulatory agency charged with regulating alcoholic beverages and tobacco.
Respondents, 1/ David W. and Mildred N. Romeo, d/b/a The Full Moon Club, are the holders of Alcoholic Beverage License #61-01368, Series 14BC.
Respondents' licensed premises is located at 6763 Land O'Lakes Blvd., Land O'Lakes, Florida.
Based on a complaint received by the Pasco County Sheriff's office (PCSO), Detective Darren Norris of the PCSO initiated an undercover investigation of Respondents' licensed premises. Detective Norris was assisted by Special Agent Ashley Murray (herein the agents) of the Division of Alcoholic Beverages and Tobacco (DABT), who was also acting in an undercover capacity. Petitioner notified Respondents by mail that the Division had received complaints concerning lewd or indecent acts taking place in the licensed premises. In response to that notice, Respondent placed a telephone call to Petitioner's agent, George Miller, to discuss ways in which he would not run afoul of the alcoholic and beverage laws in Florida. During the conversation with Agent Miller, Respondent engaged in a discussion with Miller as to the pitfalls of licensees who operated membership clubs as he did. Miller gave certain examples of proscribed conduct and Respondent ended the conversation with the assurance that they were not engaging in unlawful conduct as the warning letter indicated.
Detective Norris has been employed with the PCSO for five years and currently holds the rank of corporal. At the time of his investigation, Detective Norris was assigned to the vice and narcotics unit of the PCSO. Agent Murray has been employed with Petitioner for four years.
When Detective Norris was assigned to investigate the anonymous complaint concerning Respondent's club (by a Captain of PCSO), he did not receive explicit instructions from his superiors concerning the manner in which the investigation would be conducted or that a certain outcome was expected.
On May 28, 1993, Detective Norris entered the licensed premises in an undercover capacity. Detective Norris met with Respondent, Mildred (Nita) Romeo, at the entrance of the licensed premises. Detective Norris inquired as to procedure of becoming a member of the club; whereupon Ms. Romeo advised that he would have to either be a resident of Paradise Lakes, or be a member of the American Sunbather's Association (ASA).
On June 18, 1993, the agents entered the licensed premises to continue the undercover investigation. The agents obtained temporary membership cards from the ASA and presented them to Respondent Nita Romeo at the entrance of the club. The agents were provided a membership application prior to admission into the licensed premises, which included affirmations that they were not law enforcement officers on duty; that they were not reporters; that the club was "clothing optional"; that lewd and lascivious behavior was prohibited, and that what happens in the club "stays in the club". Respondents included those affirmations on the application to protect the privacy of the members. The agents completed the application and were accepted as club members.
While inside the licensed premises, the agents sat in an area designated for couples only.
After being in the licensed premises for a short time, the agents observed a white male, approximately 50 years old, and a white female approximately 35 years old, sitting at a table approximately six feet away. Detective Norris thought that he observed the male pull his penis from his shorts and the female rubbing the penis with her hand. Agent Murray could not see the male's penis, but thought that she saw the female's hand in the male's groin area. This activity took place for several minutes. Respondents did not see this activity.
During the same evening, the agents observed a white male standing with two white females in an open area near the hallway to the rest rooms and approximately five feet from their seats. One of the females was wearing a black night dress and the other was dressed in a two-piece lingerie set. The agents observed the two females rubbing each other's bodies with their hands when one of the females knelt in front of the other female and began a movement which simulated placing her tongue on the inside of the female's vagina. This activity took place for several minutes. Agent Murray thought that she observed several unnamed patrons watching this activity as it was ongoing. Respondents did not witness this conduct.
During the same evening, the agents were dancing on the dance floor when they observed a white female and white male dancing approximately three to four feet away. The white male was approximately sixty years old and was dressed in red running shorts, and the white female was approximately 35 years old, heavy set, and nude. The agents observed the male place his fingers in an area near the female's vagina. Agent Murray observed the female dancing and squatted in an up and down manner on the hand of the male dancer. This activity took place for several minutes. Respondents did not witness this activity.
After the male removed his fingers from the area of the female's vagina, the female knelt in front of the male, pulled his running shorts to his knees, and placed her mouth in close proximity to the male's penis. This activity lasted approximately one minute. Respondents did not witness this conduct.
Both officers did not observe Respondents witnessing these activities although Respondents were always present in the premises. Respondent constantly walked around the licensed premises monitoring the patrons.
During the evening of June 18, 1993, while the agents were in the licensed premises, Respondent approached the agents and introduced himself. He told the officers that if they saw anyone doing anything lewd in the premises, it was because they wanted to, and that such activity was not allowed by Respondents.
On July 10, 1993, at approximately 11:00 p.m., the agents returned to the licensed premises to continue their investigation. Both officers observed Respondent Nita Romeo at the entrance and Respondent was walking around inside the licensed premises.
While in the licensed premises, the agents observed a white couple dancing on the dance floor. The white male was dressed in a striped blue shirt and blue pants and the white female was dressed in a tan g-string and gold waist chain. The male was observed by the agents fondling the breast of the female with his hand and placing his mouth on the female's breast. The male was then observed moving the "g-string" aside and placing his fingers in the area of the female's vagina. This activity took place for several minutes. Respondents did not observe this conduct.
A short time after the above-related conduct, the agents observed a white male sitting at a table next to the dance floor with a white female. The agents were seated approximately seven feet from the couple who were dancing. The agents observed the male remove an ice cube from his drink and rub it over the female's exposed breast. The male was then observed placing the ice cube in his mouth and placing his mouth on the exposed breast of the female. This activity took place briefly and Respondents did not see it.
The agents then observed the male, described in the preceding paragraph, pull up the dress of the female and place his fingers in the area close to her vagina. This activity took place briefly and Respondents did not see it.
Respondent was not observed by the agents watching any of these activities, although he walked around the licensed premises constantly. Throughout all of these activities, Respondent Nita Romeo was at the front desk with her back turned toward the patrons and she did not have a clear view of what was occurring inside.
On July 16, 1993, the agents returned to the licensed premises to continue their investigation. While entering the licensed premises, the agents were greeted by Respondent Nita Romeo.
While dancing on the dance floor, the agents observed a black male wearing jeans dancing a few feet away from a white female wearing a red "teddie" lingerie set. The agents observed the male place his fingers in the area of the female's vagina. This activity lasted approximately one minute and Respondents did not see it.
A short time thereafter, the agents observed a white male with a white female wearing a black "t-back bottom". Both officers observed the male fondle the female's breast and moved the t-back bottom aside and placed his fingers inside the area of the vagina. This activity took place while a song was playing and Respondents did not see it.
Respondent was not observed watching this activity, although he was inside the licensed premises. He spoke with the agents and told them that when they felt comfortable, they could join in with the other patrons.
On July 23, 1993, the agents returned to the licensed premises to continue their investigation. They saw Respondent Nita Romeo at the entrance where they were greeted and Respondent was inside the licensed premises.
While inside the licensed premises, the agents observed two patrons sitting at a table on the east side of the dance floor. The female patron was sitting on the lap of the male.
Both agents observed the male move aside the t-back bottom and place his fingers inside the area of the female's vagina and fondle her exposed breast with his other hand. This activity took place for several minutes. Respondent did not observe this activity.
Shortly after the above described activity, Respondent approached the officer's table and commented that his feet hurt from walking around so much. This is in keeping with Respondent's constant attempt to monitor the premises at all times.
On July 24, 1993, at approximately 12:25 a.m., Detective Norris left the licensed premises and signaled for the remaining law enforcement officers, who were waiting outside, to enter the premises. The activity inside the licensed premises, once law enforcement entered, was video taped.
Detective Norris confiscated several photographs which were found inside the licensed premises. These photos were mementos and were from other activities from another club unrelated to Respondent's licensed premises here.
Although Detective Norris and Agent Murray observed Respondent David Romeo make announcements over the public address system, they denied ever hearing him say the lewd behavior was not allowed inside the licensed premises.
Robert Laurie was employed as a disc jockey for Respondents for approximately one year. Part of his assigned duties were to watch the activities in the licensed premises and alert Respondents if he witnessed any problem(s). Laurie observed problems on occasion and notified Respondent whenever he saw anything occurring which he considered to be lewd and/or lascivious.
Respondents changed the policy regarding nudity in the licensed premises and since this policy changed, Laurie has observed less problems respecting lewd and lascivious acts inside the licensed premises.
Laurie was present on each occasion the officers were in the licensed premises and did not witness six (6) of the incidents testified to by the officers. Laurie related one incident of oral sex taking place which he related to Respondent who immediately stopped it.
Laurie has a clear vantage point from his station in the disc jockey booth and he is better able than any other patron to view what goes on inside the premises.
Laurie has observed Respondent making announcements banning lewd and lascivious conduct in the licensed premises, which announcements are made, without fail, twice nightly.
Stephanie Mitchell has been employed by Respondent in the licensed premises in several capacities although she is not presently employed there. She has heard Respondent talk to new couples concerning the lewd and lascivious rules. She observed Respondent walking around constantly in the licensed premises monitoring the club's activities.
Witnesses Mark Mitchell, Dale Workman, Nan La, Darlene Nonn and Grady Lawhorne are all members of the club.
All of the above witnesses have observed Respondent constantly moving around inside the licensed premises and policing the club such that lewd and/or lascivious behavior could not occur. Respondent constantly made known, through the public address announcements, that lewd and lascivious behavior was not allowed in the licensed premises. Respondent made the announcements twice nightly and all the above witnesses are desirous of the club remaining open.
Nan La observed Respondent throwing members out of the licensed premises for several reasons including those who are too loud or rowdy; those who are too intoxicated, and those who are "too loose with their hands".
Darlene Nonn is familiar with pictures which were posted on the wall and confiscated during the raid. She does not consider them to be lewd or indecent.
Respondent opened the club with the idea of providing a place where the adult members could go and not be harassed by other patrons. Respondent followed all procedures required to obtain all necessary licenses and wanted to make certain that he "followed the letter of the law" such that he would not run afoul of any beverage laws. In this respect, when Respondent received the notice from Petitioner, he immediately called Agent Miller and inquired as to specifics of the charges which were unspecified.
Respondent walks the licensed premises constantly on each evening it is opened for business, and he makes public service announcements, twice nightly, advising members that lewd and lascivious behavior was prohibited.
Respondents observed and enforced the rules, as best they could, and maintained an eye on all of the patrons/members while they were in the club. The agents never approached Respondents about any of the activities they reported herein.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida Statutes.
The parties were duly noticed pursuant to Chapter 120, Florida Statutes.
The authority of the Petitioner is derived from Chapter 561, Florida Statutes.
Respondent, an alcoholic beverage licensee, is subject to the disciplinary provisions of Chapter 561, Florida Statutes.
Section 561.29(1)(a), Florida Statutes, subjects an alcoholic beverage license to suspension or revocation for violations by the licensee or his agents, officers, servants, or employees of any of the laws of this state or the United States, or permitting another on the licensed premises to violate any of the laws of this state or the United States.
Section 796.07(2)(a), Florida Statutes, makes it unlawful to own, establish, maintain, or operate any place, structure, building, or conveyance for the purpose of lewdness, assignation, or prostitution.
Petitioner has the burden of establishing, by clear and convincing evidence, that Respondent fostered, condoned, and/or negligently overlooked lewd or indecent acts that are set forth in the Administrative Complaint filed herein.
The complaint alleges eight counts of lewd conduct on four different occasions. It is alleged that Respondents allowed such conduct to occur. However, the evidence introduced herein shows the opposite. The word "allow" connotes knowing permission. It might also mean that Respondents were merely negligent, resulting in violations of law on the licensed premises which would, of course, be a basis for sanctions. On the other hand, the mere occurrence of violations on the premises, without any showing of personal culpability on Respondents' part does not warrant sanctions.
In this case, Petitioner failed to demonstrate, by clear and convincing evidence, that, at the very least, Respondents were negligent in preventing the violations from occurring. See, Pic 'N Save v. Department of Business Regulations, 601 So.2d 245, 249 (Fla. 1st DCA 1992); Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture, 550 So.2d 112 (Fla. 1st DCA 1989). Most of the cases involving beverage law violations relate to proscribed conduct by employees of the license. But where one's own employees are involved, the standard for sanctions is high. See, Pic 'N Save, supra, at 250 where the Court noted:
Thus, while an employee may violate the beverage law in making illegal sales of alcoholic beverages to minors, the licensee's culpable responsibility therefor is measured in terms of its own intentional wrongdoing or its negligence and lack of diligence in training and supervising its employees regarding illegal sales. This limitation on the licensee's liability is consistent with the notion, also long recognized by the courts of this state, that one's license to engage in an occupation is not to be taken
away except for misconduct personal to the licensee.
As noted, the number of alleged violations is eight on four different occasions. In Heifetz v. Department of Business Regulations, 475 So.2d 1277 (Fla. 1st DCA 1985), the allegations were of six serious violations, drug sales, which were made by employees of the licensee. In finding that the Petitioner failed to show personal responsibility of the licensee, the Court noted that Petitioner misapplied the "persistent and practiced manner" rule announced in Pauline v. Lee, 147 So.2d 359, 364 (Fla. 2d DCA 1962):
The Division apparently perceives this statement to be a rule of law requiring that whenever drug transactions occur in a persistent and practiced manner the licensee is to be conclusively presumed to have failed to exercise ordinary care. We disagree . . . In Pauline the Court stated that the persistent and practiced manner of the illegal activity proven in that case was sufficient" to permit a factual inference leading to the conclusion that such violations of law were either fostered, condoned or negligently overlooked by the licensee. [citing cases]
. . . Although the recurring number of transactions legally permits an inference that appellant failed to exercise ordinary care, the hearing officer acted within his discretion in reaching a different inference in light of other competent, substantial evidence to the contrary.
Here, although there was at least one violation that Respondent was aware of, he took swift action in bringing it to a halt. As to the other violations, Respondents did not observe them. This was so despite Respondent's announcements nightly on the public address system and his efforts to continually walk the premises. These facts demonstrate Respondents' seriousness about curtailing illegal activity in the licensed premises.
For these reasons, Petitioner failed to establish, by clear and convincing evidence, that Respondent fostered condoned and/or negligently overlooked lewd or indecent acts committed in the licensed premises as alleged. In the one incident wherein a lewd act was ongoing, Respondent stopped the activity and he took great strides to insure that no lewd or lascivious activity did not occur inside the licensed premises.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:
Petitioner enter a Final Order dismissing the Administrative Complaint filed herein.
DONE AND ENTERED this 8th day of June, 1994, in Tallahassee, Leon County, Florida.
JAMES E. BRADWELL
Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1994.
1/ Unless noted otherwise, all references to Respondent means David Romeo.
APPENDIX IN CASE NO. 93-6657
Paragraph 10, adopted as modifified, paragraph 9, recommended order. The remainder is rejected as contrary to the greater weight of evidence.
Paragraph 34, rejected, not probative of the issues.
Paragraphs 37 through 40, rejected as being a recitation of testimony.
Paragraph 41, adopted as modified, paragraphs 39, 43 and 44, recommended order.
Paragraph 10, adopted as modified, paragraph 34, recommended order. Paragraphs 20 and 21, rejected, irrelevant.
Paragraph 22, rejected as being a conclusion.
Richard D. Courtemanche, Jr. Assistant General Counsel Division of Alcoholic Beverages
David W. & Mildred N. Romeo 6763 Land O'Lakes Boulevard Land O'Lakes, Florida 34639
John J. Harris Acting Director
Douglas L. Wilson, Esquire 680 Sanctuary Road
All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the Final Order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
