The Issue Whether or not on or about August 23, 1975, Carole Sanders, licensed under the beverage laws as a licensed vendor, did employ, on her licensed premises persons under the age of 18. to wit: Margie Johnson, W/F, DOB: 11/12/60, age 14, address: Homosassa, Florida, and Mrs. Fawn Hetland, DOB: 5/22/59, age 16, address: Sindpiper Motel, Room #38, Clearwater, Florida, contraty to Florida Statute 562.13. Whether or not on or about August 23,1975, Carole Sanders, licensee, her agent, servant, or employee, did allow procuring for the purpose of prostitution on her licensed premises, contrary to Florida Statutes 796.07(3)(A) and 561.29. Whether or not on or about August 23, 1975, Carole Sanders, licensee, or her servant, employee or an agent, did allow a person under the age of 18 to consume alcoholic beverages on her licensed premises, to wit: Margie Faye Johnson, W/F, DOB: 11/12/60, contrary to Florida Statue 562.11.
Findings Of Fact The Petitioner began its presentation by offering into evidence a copy of the amended notice to show cause, together with the notice of hearing, which became Petitioners Exhibit #1 which was admitted without objection. The Petitioner also presented a copy of the license of the Respondent, which was allowed into evidence without objection, as Petitioner's Exhibit #2. Petitioner then called Margie Faye Johnson to the stand. Miss Johnson testified that she was 15 years old as of November 12, 1975. She now lives with her mother at Homasassa, Florida, but in August, 1975, she was a runaway. While away from home, the witness went to the establishment of the Respondent, to wit, Charlie's Beach Bar and applied for a job as a topless dancer. At that time the witness was 14 years old. She had been told about this job by one Fawn Hetland, an acquaintance she had met two weeks prior to applying for the job. The job application was made sometime in August, 1975, three or four days prior to certain arrest warrants were served on Charlie Sanders, the husband of the Respondent. These warrants were served on or about August 23, 1975. The process of the hiring of Margie Johnson was described by her in the following fashion She said she asked Charlie Sanders about being a dancer in his bar and that he interviewed her and asked her to dance, after which she was hired as a topless dancer in the bar. During the course of the hiring procedures the witness testified that she was never asked for an identification card of any kind. She did say that she signed a writing presented to her by Carole Sanders, which was something to do with taxes. This writing spoken of was admitted as Petitioner's Exhibit #3, without objection. According to the witness, Charlie Sanders was responsible for hiring her as opposed to the Respondent, Carole Sanders. The night the witness was hired, in addition to neglecting to ask for an identification card, for some identification of her age, the witness indicated that she never saw anyone call for references concerning her age. She felt that she would have observed such a call because the phone was near the area in which she was located. During the course of her employment for the three or four days, Margie Johnson indicated that she danced topless, served alcoholic beverages, and consumed alcoholic beverages, and also worked the cash register. On the night that the arrest was made of Charlie Sanders, which would have been August 23, 1975, the witness was found in possession of a mug of beer. The mug itself is Petitioner's Exhibit #6 which was admitted without objection, after a stipulation had been entered into concerning the chain of custody of the beer mug and a stipulation that the mug contained an alcoholic substance, to wit, beer. Margie Johnson was arrested, by her statement, for drinking on the premises and being in an adult bar. Other activities concerning Margie Johnson while she was working for the Respondent, included a request by Charlie Sanders that she prostitute herself for an older man, whom she said was in the conversation, but whose name she does not know. The witness indicated that Charlie Sanders actively participated in this procurement situation by asking her if she had done any prostituting and asking her if she would like for him to set her up. The witness also indicated that Charlie Sanders propositioned her to go to bed with him, evidently for purposes of having sexual relations. To the witness's knowledge, Mrs. Sanders was not involved in any procurement for prostitution. Margie Johnson had also worked at two other topless lounges in the area to include the Savoy Lounge and the Stock Market. While working at the Savoy Lounge she said she had shown a birth certificate which had been given to her by some "chick and a guy" who picked her up. This birth certificate indicated that she was 22 years old. She had been requested to show proof of age at the Savoy Lounge and had shown the phony birth certificate, but she said she never showed any identification of age at the Stock Market. The Stock Market proprietors had asked her for proof of age but she had indicated that she would bring that proof in and never did. While at Charlie's Beach Bar, the witness stated that she never was questioned about her age. An effort was made to develop the fact that the witness worked in bars other than the bars spoken of, this was objected to and the objection was sustained because it was not felt that further development of the issue was material or relevant. Finally, the witness indicated that Charlie Sanders had told her the night they were arrested, that if she was not 18 years old that he was going to kill her. At present the witness is not in immediate contact with the Respondent or any employees at-Charlie's Beach Bar. John T. McMullen, agent for the Division of Beverage, testified that he assisted in serving a warrant issued to the Indian Rocks Police Department for August 23, 1975. This warrant was served around midnight on that date and when the witness entered Charlie's Beach Bar with the warrant party he noticed that Margie Johnson was sitting with a beer mug in her hand and that mug contained beer. This beer mug has been identified as Petitioner's Exhibit #6. When Officer McMullen approached Margie Johnson, because he felt she was under age, she stated that she was 18 and had been born in 1953. Later she admitted that she was a juvenile. Officer McMullen later returned to the bar around 1:15 A.M. on August 24, 1975, and picked up certain records from the Respondent, Mrs. Sanders. Part of these records have been admitted into evidence as Petitioner's Exhibit #5, admitted with objection. The witness testified that Mrs. Sanders told him that she had hired Margie Johnson because she knew the girl Fawn Hetland and because Margie Johnson had indicated that she was 18 years old and had worked at the Stock Market Bar. Consequently, according to Mrs. Sanders, she presumed these things to be so. Officer McMullen went back to the bar on a third occasion around 12:45 P.M. on September 3, 1975 at which time a citation for beverage violations was served upon the Respondent. At that time the witness stated that he read the citation to Carole Sanders and she told him she couldn't go and not plead guilty to the citation, because she had hired Margie Johnson and that her husband had hired Fawn Hetland and that they knew the girls were minors. Beverage Agent Woodrow Ray took the stand and testified essentially the same way as Officer McMullen, about the facts surrounding the service of the warrant on August 23, 1975, at Charlie's Beach Bar. Officer Ray also went back to get records In the early morning hours of August 24, 1975. He indicated the receipt of Petitioner's Exhibit #5 from Carole Sanders and stated that he had given her a receipt in return which is admitted into evidence as Petitioner's Exhibit #4, without objection. *A more complete description of the objection to the introduction of Exhibit #5 will be discussed in the section of this order entitled CONCLUSIONS OF LAW. Officer H. C. Adams of the Indian Rocks Police Department, testified that he was involved in serving the warrant on Charlie Sanders at Charlie's Beach Bar on August 23, 1975. He had seen Margie Johnson drinking the beer which was in Petitioners Exhibit #6, and had removed the beer mug and contents from Margie Johnson. The Petitioner called Jack Lewzader to the stand. Before Mr. Lewzader testified, the Petitioner offered to amend count 2 of the amended information by changing the date of August 23, 1975, as reflected, to the date of August 16, 1975. The Respondent was offered the right of a continuance since there had been a change in count 2; however, the Respondent indicated that he was sufficiently prepared to defend the charges reflected in count 2 and the testimony of Jack Lewzader was taken. Mr. Lewzader said that he was a customer in Charlie's Beach Bar and that on one occasion he had taken home one Fawn Doyle* and on the way home Fawn Doyle had offered to sell herself for $10.00 and as the car stopped, Fawn Doyle grabbed the $10.00 from his hand and jumped out of the car. He stated that he went back to Charlie's Beach Bar and confronted Charlie Sanders later that same day, with the details of his problem with Fawn Doyle. Lewzader said that Charlie Sanders told him that he would have to talk with her. Charlie Sanders then introduced Lewzader to a Mike and a Linda who were in Charlie's Beach Bar. A conversation then ensued, in which it was indicated through Charlie Sanders, that he might help make the matter with Fawn Doyle right by the introduction of Mike and Linda. Linda and Mike stated that Linda would sell herself for $25.00 for the first hour, $50.00 for the second hour and $75.00 for all night and that they would deduct the $10.00 that had been taken by Fawn Doyle. This conversation with Linda and Mike took place on the premises of the Respondent, to wit, Charlie's Beach Bar. On cross-examination, Mr. Lewzader indicated that he had gone to the Indian Rocks Police Station to complain, after the $10.00 had been taken by Fawn Hetland. Then he went to speak to Charlie Sanders and met Mike and Linda, and later returned back to the police station to file a complaint. Respondent's Exhibit #1 was introduced through the witness, Lewzader. This item of evidence was the affidavit of complaint by Jack Lewzader. It was admitted without objection. As Respondent's Exhibit #1 reflects, the discussion Mr. Lewzader had at the police station was with one Officer Marvin Padgett. The witness indicated that Respondent's Exhibit #1 accurately reflects the details of his complaint. Respondent presented testimony in the course of the hearing, and the first witness was Diane Poole. Diane Poole is 23 years old and is a topless dancer at Charlie's Beach Bar at this time and has been so employed for two months. She testified that she applied for a job at Charlie's Beach Bar while down there having a glass of wine. She indicated that while having the wine she was carded by the bartender who was a lady; however, she auditioned before showing any identification card. The process of her hiring included Charlie Sanders asking where she had worked before and dancing to three songs, discussing certain written rules, discussing how old she was and signing a certain paper on income tax. She said that she has never been asked about being a prostitute. The witness has been a dancer for about 3-1/2 years and had started in Phoenix, Arizona. She has also held jobs as a model and as a secretary. *Fawn Doyle and Fawn Hetland was believed to be one and the same person to the knowledge of the witness. Marvin Padget took the stand, after being called by the Respondent. He testified that he knows Charlie Sanders and Carole Sanders. He further testified that he knows Jack Lewzader as being a complainant who came to him about alleged acts of prostitution by Fawn Hetland. In the discussion of his complaint about Fawn Hetland, the witness said he advised Lewzader of his rights and told him that he would not prosecute him for his involvement with the minor, Fawn Hetland. The witness further stated that he asked Lewzader if he was a regular patron of Charlie's Beach Bar and told him to keep his eyes and ears open. If he heard about anything else, such as prostitution, going on in the bar, he instructed Lewzader to report any matters of impropriety to him concerning prostitution in Charlie's Beach Bar. He also asked Lewzader if he had heard of other incidents such as the one with Fawn Hetland. He did not mention the names of any persons he wanted observed in Charlie's Beach Bar. Later, according to the witness, Jack Lewzader completed the complaint which is Respondent's Exhibit #1. Carole Sanders took the stand in her own behalf. She testified that Margie Johnson came into Charlie's Beach Bar and that she auditioned to be a dancer. According to Carole Sanders, Margie Johnson was asked for an identification and she told her she had lost her purse and that she would bring in some identification at a later time. She said she told Margie Johnson about their rules, which were not in the form of writing at that time, and also explained to her about the matters concerning income tax. The witness seemed to indicate that the actual hiring of Margie was at a later time, although she and her husband had agreed to hire Margie Johnson on the same date of the audition. According to the witness, it was her understanding that Margie Johnson would have an identification to show at the time she was actually employed. She doesn't know if any identification was ever shown by Margie Johnson to indicate her age. The witness said, to her knowledge, there is no prostitution in Charlie's Beach Bar and has not been since she became the proprietor, even though there have been 30 or 40 girls hired by the bar in that time period. According to the witness, Fawn Hetland was hired by Charlie Sanders. Margie Johnson, as indicated by the witness, was interviewed and eventually went to work the first day, effective the night that her bar was raided. The witness indicated that she never told anyone she was guilty of hiring minors. Nevertheless, she indicated that she knows she should have made sure on the age of her employees and was remiss in the instance of Fawn Hetland and Margie Johnson. She further stated that she is more careful now about the matter of identification for prospective employees. Charlie Sanders took the stand in behalf of the Respondent. Charlie Sanders, as stated before, is the husband of the Respondent. Describing the hiring of Fawn Hetland, he said he asked for a proof of age and she produced an employment card for Orange County. The witness said he was bothered by that somewhat and asked for further proof of age and Fawn Hetland promised proof later on. He testified that he knew she was married and had a child and for that reason seemed to be satisfied to accept better proof of age at a later time. To the witness's way of thinking, the reason better proof of age was never forth coming was because Fawn Hetland's husband had most of her identification and refused to give it to her. He also stated he had phoned an establishment called the House to see if she had danced there before and was told yes. In discussing Margie Johnson, the witness indicated that he had hired her over a four day period but that she had only worked one day. He said he asked Margie Johnson where she had worked before and she indicated the Savoy Lounge. His wife was there when Margie Johnson was hired. He said he wasn't shown any identification at the time of hiring but Fawn Hetland said that she was alright and he also called the Savoy Lounge, after which he was satisfied at that time. The witness then said that on the second or third night that she had worked she showed him a birth certificate that indicated that she was born in 1953, to which he simply replied, "is this yours?" and then told Margie Johnson to get to work. He said he told his wife that he had seen Margie Johnson's identification. To the witness, Margie Johnson, in August, 1975, looked 22 years of age as the phony birth certificate indicated. In discussing the Lewzader matter, the witness said that Lewzader came into the bar and wanted to talk to him about Fawn Hetland. He said that Lewzader told him that Fawn Hetland wanted some money for baby food and that he was going to give her $10.00 and she "ripped" the $10.00 off him, and that Lewzader simply wanted him to know what kind of person Fawn Hetland was. He confronted Fawn Hetland with the matter and Fawn Hetland said that Lewzader was trying to have sex with her. Before he could resolve the difference between Jack Lewzader and Fawn Hetland, he had to leave the bar and to his knowledge that was the end of the situation. The witness indicated that he had found out about the complaint before the time of his arrest by the Indian Rocks Beach Police Department, for prostitution type charges. He said that Lewzader was in his bar and he confronted Lewzader with the fact of Lewzader's claim in the affidavit, and Lewzader told him they simply had made it up, meaning the police. He said that Lewzader told him that he would never have come back into the bar to face him had he made the charges that the police claim. As an aside, the witness indicated that there had been a Linda working there at one time but that her fiance had not liked it and she had quit the job. He said that Linda continued to come in there, perhaps, but that he did not think Linda was in there at the time Jack Lewzader came to discuss the matter of Fawn Hetland. Attention is drawn to Petitioner's Exhibit #5 which is records turned over to the police by Carole Sanders, Respondent. These records seem to indicate that Margie Johnson was working there for more than one night. Moreover, these records seem to indicate that a person named Linda was working there at the same time that Marge (Margie Johnson) was. From the discussion of the employment of Margie Johnson, both from the standpoint of Margie Johnson, Carole Sanders, and Charlie Sanders, it appears that Margie Johnson was employed on the licensed premises of the Respondent when she was under the age of 18. Furthermore, the description of the technique involved by Carole Sanders and Charlie Sanders in trying to ascertain the age of Margie Johnson does not demonstrate due diligence on the part of the Respondent in hiring Margie Johnson. This conclusion assumes the validity of the story of any one of the three witnesses, to wit, Margie Johnson, Carole Sanders, or Charlie Sanders. It is noted that there is a major inconsistency concerning the date at which Margie Johnson was formally employed by the Respondent, when considering the version of Carole Sanders and Charlie Sanders, and consequently Margie Johnson is more creditable. In examining the application of count 1, to Fawn Hetland, one must look to the statements of Charlie Sanders. Assuming that what Charlie Sanders has said is exactly true, it would appear that Charlie Sanders as the agent or employee of Carole Sanders did not use due diligence in hiring Fawn Hetland. This is further established in view of the fact that a prima facie case has been established that Fawn Hetland was under the age of 18 when she was hired, as set forth by testimony offered by officer McMullen in discussing Carole Sanders admission. Although the nature of the acts of Jack Lewzader in involving himself with a minor for purposes of promoting prostitution on the part of Fawn Hetland and then in returning to Charlie's Beach Bar and engaging in the discussion of further prostitution with a subject whose name is Linda, would make his testimony somewhat suspect, it would still seem strong enough to support the charges in count 2. The testimony of Jack Lewzader must be contrasted with the interest on the part of Charlie Sanders in protecting the license, and must be considered in view of the fact, that there was a Linda working there at some time and who was apparently working there at the same time as Margie Johnson. Furthermore, Margie Johnson testified that she had seen Fawn Hetland discuss the price of $25.00 for purposes of prostitution, and leave with the man she was having that conversation with and not return until the next day. Finally in discussing count 3 of the charges, it is well established that Margie Faye Johnson was consuming an alcoholic beverage, to wit, beer on August 23, 1975, when the investigators arrived on the premises to serve the warrant. It has also been established that due diligence had not been followed in ascertaining the age of Margie Johnson before allowing her to consume that alcoholic beverage on the licensed premises, for reasons set forth in the discussion of count l.
Recommendation For committing the violation alleged in count 1 of the amended Administrative Complaint, it is recommended that the Director of the Division of Beverage revoke the license of the Respondent. For committing the violation alleged in count 2 of the amended Administrative Complaint, it is recommended that the Director of the Division of Beverage assess a civil penalty in the amount of $500.00. For committing the violation alleged in count 3 of the amended Administrative Complaint, it is recommended that the Director of the Division of Beverage revoke the license of the Respondent. DONE and ENTERED this 2nd day of March, 1976, in Tallahassee, Florida. CHARLES C ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation 725 Bronough Street Tallahassee, Florida 32304 Robert K. Hayden, Esquire 932 South Myrtle Avenue Clearwater, Florida 33516 =================================================================
The Issue Whether or not on or about August 9, 1975, Martha L. Washington, a licensed vendor did have in her place of business, one (1) four-fifths brokenseal bottle of Barcardi Rum, Light, not authorized by law to be sold under her license, contrary to Section 562.02, Florida Statutes.
Recommendation It is recommended that a civil penalty in the amount of $200.00 be imposed against the license of Martha L. Washington for the violation established through the allegation of the subject Administrative Complaint. DONE and ENTERED this 17th day of February, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation 725 Bronough Street Tallahassee, Florida 32304 Martha L. Washington 1085 Palmetto Street Bartow, Florida
The Issue This case concerns the issue of whether Respondent's beverage license should be suspended, revoked or otherwise disciplined for permitting prostitution activity on his licensed premises. At the formal hearing the Petitioner called as witnesses John Harris, Kelvin Davis, Carlos Bauxalli, Lewis Terminello, Hugo Gomez, Louis Viglione, Keith Bernard Hamilton, and Alfonso Scott Julious. Respondent called as witnesses Isaac Dweck, Gary Arthur, Irene Madden, Collins Jones, Mary Scott, Debbie Heenan, Judy Pearson, Joe E. Clements, Cecil Rolle, and the Respondent himself, Eddie Lee Pittman. Petitioner offered and had admitted a videotape which was viewed during the hearing. Respondent offered and had admitted one exhibit. Petitioner also offered a composite exhibit containing police reports relating to the licensed premises for the years 1981 and 1982. That composite exhibit was admitted as hearsay to corroborate the testimony of the police officers relating to the reputation of the licensed premises. These police records were of very limited probative value and no finding of fact was based upon these records. Neither party submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer.
Findings Of Fact At all times material to this proceeding the Respondent, Eddie Lee Pittman, was the holder of beverage license No. 23-371, Series 2-COP. The license is issued to the licensed premises at 1772 N.W. 79th Street, Miami, Dade County, Florida, and was originally issued to Respondent on October 6, 1965. On the evening of March 22, 1983, Beverage Officer Kelvin Davis visited the licensed premises, Eddie's Dive Inn, in an undercover capacity to investigate possible prostitution activity in the licensed premises. Officer Davis was accompanied by Beverage Officer Eddie Bauxalli. After entering the licensed premises Officer Davis was approached by a white female named Elnora Moore who engaged him in conversation. The conversation led to a discussion of voter registration cards and Ms. Moore stated that a voter registration card could get you out of jail on a misdemeanor charge. Officer Davis asked why she needed a card for that purpose and Ms. Moore said because of solicitation. She then asked Officer Davis if he would like to be solicited and asked how much money he had. He responded that he had twenty dollars and she said that would get him a "straight." "Straight" is slang or street language for sexual intercourse. He agreed to the price but told her he also had a friend (Officer Bauxalli). Ms. Moore offered to service both men for $100. Officer Davis and Officer Bauxalli agreed to this offer and the three of them prepared to leave. The conversation between Ms. Moore and Officer Davis took place next to the bar where the officers were seated. This was approximately three to five feet from the cash register where the bartender on duty was working. The conversation took place in a normal tone of voice. As Officers Davis and Bauxalli and Ms. Moore began to leave, a white female named Peggy Schultz yelled across the bar to Officer Bauxalli and asked where he was going. Officer Bauxalli yelled back that he was going to have a good time. In response, Ms. Schultz yelled back "How can you have a good time without a date?" Officer Bauxalli responded that he would figure something out. At this point Ms. Schultz walked over to Officer Bauxalli. Ms. Schultz asked Officer Bauxalli if he wanted a "date" and he asked what is a "date." She responded that a "date" is a "straight" for $20 or a "straight" and a "blow job" for $25. He agreed to a "date" and Ms. Schultz then told him to drive around to the back and she and Ms. Moore would meet them at the back door. She also stated that the owner did not like the girls to go out the front door. Officers Bauxalli and Davis then left the bar, drove around to the back door of the licensed premises and picked up Ms. Moore and Ms. Schultz, who were waiting just inside the back door of the lounge. While Officers Bauxalli and Davis were in the licensed premises, the bar was pretty crowded and there was a lot of noise from people talking. At the time Ms. Schultz solicited Officer Bauxalli, she spoke in a normal tone of voice while they stood approximately four or five feet from the cash register on the bar. Ms. Schultz was dressed in a low-cut blue silky dress that was made of a material which you could easily see through. She was wearing only panties underneath the dress. The owner, Mr. Pittman, was observed in the licensed premises on the evening of March 22, but there was no evidence that he observed or overheard any of the discussions between the two beverage officers and Ms. Schultz and Ms. Moore. On the evening of September 17, 1983, at approximate1y. 10:A5 p.m., Beverage Officer Louis J. Terminello went to the licensed premises in an undercover capacity. Immediately upon entering the licensed premises he was approached by a white female named Michelle Orfino. The bar was pretty crowded and there were a number of females in the bar and poolroom area who by their dress appeared to be prostitutes. These women were mingling with the men at the bar and in the poolroom area. A number of couples were exiting through the back entrance. When Ms. Orfino approached Officer Terminello, she walked up to him and asked if he was looking for a "date." He asked her what a "date" was and she said "a blow job." She then asked if he wanted one and Officer Terminello responded "yes." She told him the price would be $20 plus $5 for the room. As they had been talking Officer Terminello, accompanied by Ms. Orfino, walked into the poolroom area. After agreeing to the price, Officer Terminello took Ms. Orfino by the arm and started to walk out the front door of the lounge. She stopped him and said that they had to use the back door because Eddie does not allow them to leave through the front door. She then told him to drive around back and Officer Terminello responded that his car was just outside the back door. She then walked with him out the back entrance and into the parking lot. As they walked to his car Officer Terminello observed the Respondent, Eddie Pittman, in the parking lot. After driving away, Officer Terminello placed Ms. Orfino under arrest. Ms. Orfino was dressed in a very low-cut latex body suit. For at least three nights prior to September 17, Officer Terminello, while on surveillance, had observed a continuous pattern of a patron entering the bar, coming back out and driving his car to the rear entrance. A woman would then come out the back door, get in the car and they would drive away. Twenty minutes or so later the car would come back and the girl would get out and go back in. After the arrest of September 17, Officer Terminello returned to the bar in the early morning hours of September 18 to arrest two other women for prostitution. The Respondent had not been advised of the arrests on September 17. On the evening of September 15, 1983, Beverage Officer Louis Viglione went to the licensed premises, Eddie's Dive Inn. After entering the licensed premises he took a seat at the bar near the rear entrance. Shortly after entering, he was joined by two black females named Veronica and Angie. He purchased a beer for each of the two women and the three of them engaged in conversation about good times, good loving, and Pink House. The Pink House is a boarding house in the area where the licensed premises is located and is used by prostitutes for "dates." A "date" is a slang or street term used commonly by prostitutes to refer to sexual intercourse or other sexual acts for pay. During this conversation, Veronica stated that one hour with her would cost $40 or $50 and Angie stated that she charged $100 an hour. As an excuse, Officer Viglione then stated that he did not have enough money because he wanted two women at once. He remained in the lounge approximately one more hour and left. On this particular evening Veronica was wearing a short white dress and Angie was wearing a blue print dress with white stockings. Both were dressed in what Officer Viglione described as normal dress. Several other women in the lounge were dressed in a very provocative manner and appeared by their dress to be prostitutes. The lounge was approximately 3/4 full of patrons, but it was not particularly noisy or boisterous. There were also several women outside the front and rear entrances of the licensed premises who appeared to be prostitutes. The area where the licensed premises is located is an area which has a visible concentration of prostitutes and has a reputation as an area where prostitution is prevalent. At approximately 9:30 p.m. on September 16, 1983, Beverage Officer Keith Bernard Hamilton entered Eddie's Dive Inn. Upon entering the lounge, Officer Hamilton took a seat at the west end of the bar. There were approximately 40 or 50 male patrons in the lounge and at least 30 women. The women were scantily dressed in very revealing clothes and were observed by Officer Hamilton to be moving around the bar stopping and talking with the men. Several of the women left the bar after talking to one of the men who also left the bar. While seated at the bar, Officer Hamilton was approached by a young black female named Anna. Anna had been talking to a white male seated next to Officer Hamilton. She asked Officer Hamilton what he was interested in tonight. He asked what she had and she asked if he wanted to fuck. She also stated that for $35 plus $5 for the room she would give him a "suck and fuck." He said he would wait for a while and Anna left but returned several times during the evening. After Anna left, another woman walked up to Officer Hamilton and asked if he dated. He was short with her and she moved over and began talking to the white male seated next to him. A few minutes later, Officer Hamilton went to the bathroom and was stopped by a black female named Carol Lawrence. Ms. Lawrence stated that she needed money and asked if he could help her out. Officer Hamilton asked what did she have and Ms. Lawrence responded "a suck and fuck for $35." Officer Hamilton agreed to this but said he wanted to wait a while. She then left, but approached him at least three more times that evening. On the evening of September 16, 1983, there were three security guards at the licensed premises. They primarily remained outside where they regulated the crowd outside the lounge. One of the guards told one of the females that she shouldn't leave with a guy but should wait inside the rear door. The guard did not object to the woman and man leaving in the man's car. On this particular evening, the Respondent was present at the licensed premises until approximately 11:00 p.m. He was in and out of his office during the course of the evening. On September 17, 1983, at approximately 9:30 p.m. Officer Hamilton returned to the licensed premises, Eddie's Dive Inn. When Officer Hamilton entered the lounge, the Respondent was seated at the bar. The activity in the bar was about the same as the night of September 16, and there was a smaller crowd. There were about 20 women in the bar. These women were walking around the bar talking to the men. There was a man seated next to Mr. Pittman who was being kissed by one of the women. After kissing the man she moved on and began talking to another male patron. Shortly after entering the lounge one of the women in the lounge looked at Officer Hamilton and winked. Later, when Officer Hamilton was in the rear of the lounge near the bathrooms, be observed this same woman standing near the rear entrance. He asked her where she was going and she responded that she would be back. She then offered him a "suck and fuck" for $20 plus the cost of the room. As she walked out the rear entrance Officer Hamilton agreed to the offer. That same evening Officer Hamilton was again approached by Anna whom he had met the previous evening. She asked if he was ready and again told him the price of a "suck and fuck." He agreed and she told him to leave out the front door and she would wait around back. Officer Hamilton left the lounge and drove his car to the rear entrance where Anna was waiting just inside the screened door of the back entrance. On the evening of September 15, 1983, at approximately 9:15 p.m., Beverage Officer Alfonso Scott Julious entered the licensed premises. There were several men seated inside the bar and several women were walking around the bar. The women were dressed casually and some were wearing short dresses which were low cut in the front. After entering the licensed premises Officer Julious observed women from time to time leave the bar with a man and then come back. Each of the women exited through the rear door. At approximately 9:45 p.m. Officer Julious was approached by a white female named Gail Sylvia James. She asked if he wanted a "date" and he said what is a "date." She then said that she would "fuck him and suck him" for $30. He responded that he would be around for a while and would get back to her. Officer Julious left the lounge at approximately 10:30 p.m. During the evening Officer Julious had overheard other men being solicited and observed at least five men leave with women. On this evening Officer Julious considered the women's dress to be casual, nice dresses. Officer Julious returned to the licensed premises at approximately 9:00 p.m. on September 16, 1983. After entering the lounge he was approached by a white female named Patricia. She asked him if he wanted a "date" and he asked "what is a "date?" She then said she would fuck him for $30. Officer Julious responded that he would be around and would get back to her. Some time later in the evening Gail James, whom he had met the previous night, approached Officer Julious and asked if he was ready for a "date." She said she would go half and half, "suck and fuck" for $30. He told her he would be around for a while. Officer Julious was also approached by a woman named Mindy Jo Gelfin, who asked if he wanted a "date." He asked "What is a date?" and she responded "half and half, fuck and suck" for $40. He also did not accept this offer. Officer Julious left the licensed premises at approximately 10:45 p.m. On Saturday, September 17, 1983, Officer Julious returned to the licensed premises at approximately 9:05 p.m. The Respondent, Eddie Lee Pittman, was in the lounge. Immediately after entering the licensed premises, Officer Julious was approached by Mindy Gelfin, who asked if he was ready for a "date." Officer Julious stated that he would be around all night and Mindy said she would come back. Later, Mindy returned and asked if he was ready and he responded "yes." He asked if they could go to the Holiday Inn and she asked if he was a cop. Officer Julious said "Do I look like a cop?" She then asked if she could pat him down. He said "yes" and she patted him down. She then said that she wanted to go in a friend's car. She borrowed the car and drove to the Holiday Inn where she was arrested. At the time of her arrest Mindy Jo Gelfin was residing with Collins Winston Jones and his girlfriend. At the time of the final hearing, Mindy Gelfin was continuing to live at Mr. Jones' residence. Mr. Jones' girlfriend had allowed her to move in. Mr. Jones is the manager of Eddie's Dive Inn. On September 29, 1983, Detective Hugo Gomez of the Metropolitan Dade County Police Department went to the licensed premises, Eddie's Dive Inn. Detective Gomez was accompanied by Detectives Manny Gonzalez and Ray Gonzalez. Detective Gomez stood at the west end of the bar and his two partners sat at the bar next to him. After they ordered a beer, they were approached by a white female named Catrina Gibides. She sat down between the two officers who were seated. She asked what they were doing and told Detective Gomez he looked like a cop. He then pulled up his pants legs to show he was wearing no socks and she said "you can't be a cop" and grabbed his groin. She then began playing with Manny Gonzalez's leg and asked if they wanted a "date." She was wearing a very loose chiffon type outfit and her breasts were barely covered. The officers who were seated had been pretending not to speak English and Ms. Gibides asked Detective Gomez to ask Manny Gonzales if he wanted to go across the street to a motel with her. She said that she would perform intercourse and fellatio for $25 plus $5. She then called over another white female named Lisa Brown, who also began talking about going across the street to a motel. Lisa Brown said her price was $25 plus $5 for the room. They then discussed going in different cars. During these conversations the bar was crowded and Eddie Pittman was in the lounge approximately 8 to 10 feet from where the officers were located. It was pretty loud in the bar. There were also barmaids working behind the bar. Isaac Dweck is a regular patron of Eddie's Dive Inn. He goes there primarily on Sunday afternoons to watch football and shoot pool. He is almost never in the licensed premises after 9:00 p.m. and averages going to the lounge four or five times a month. He has never been solicited for prostitution in the lounge and has never overheard someone else being solicited. Gary Arthur goes to Eddie's Dive Inn two or three times a week and generally leaves some time between 7:30 and 9:00 p.m. Once or twice he has stayed until 11:00 or 12:00 p.m. He has never been solicited for prostitution and has never overheard anyone else being solicited. He has been going to Eddie's Dive Inn for five or six years. The Respondent has a policy against drugs, fighting, solicitation, and profanity and also has a dress code. He employs 11 full-time employees at the lounge and three or four of these employees are security guards who work at front and back doors. The Respondent has a closed circuit television system with cameras on the cash register and pool room area. The screen is in Respondent's office. Over the past 12 years the manager, Collins Jones, has barred 12 or 13 women from the bar after he heard them soliciting in the bar. In the twenty years he has operated Eddie's Dive Inn, the Respondent has barred approximately 20 women from coming into the licensed premises because of prostitution. Once the women are arrested for prostitution, they are barred from the premises. There are signs posted in the bar prohibiting soliciting. Irene Madden works as a barmaid at Eddie's Dive Inn. She has been instructed to not serve known prostitutes and that if she heard someone soliciting she should diplomatically ask them to not do that and inform Mr. Pittman or the manager. Mary Scott works as a barmaid at Eddie's Dive Inn. She has heard women solicit in the lounge for prostitution. She does not have the authority to ask someone who solicits for prostitution to leave the premises. She does have authority to ask people to leave who are in violation of the dress code. In September, 1972, the Respondent was charged in an administrative proceeding against his license with permitting prostitution on the licensed premises. He was also charged criminally with permitting prostitution. Respondent paid a $350 administrative fine and his license was placed on probation for the remainder of the license year. He pleaded guilty to the criminal charge.
Recommendation 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 ninety (90) days. DONE AND ENTERED this 9th day of November, 1983, at 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 9th day of November, 1983. COPIES FURNISHED: William A. Hatch, Esquire Gary R. Rutledge, Secretary Department of Business Department of Business Regulation Regulation 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Arthur M. Garel, Esquire 40 Southwest 13th Street Miami, Florida 33130 Howard Milan Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue This case concerns the issue of whether Respondent's special restaurant beverage license should be suspended, revoked or otherwise disciplined for failing to derive 51 percent of gross revenue from the sale of food and for failing to maintain sufficient food and equipment to serve 150 full course meals on the licensed premises. The Petitioner, at the formal hearing, called as its only witness Beverage Officer G. L. Hodge. The Petitioner offered and had admitted into evidence two exhibits. Counsel for the Respondent contacted counsel for the Petitioner just prior to the formal hearing to notify the Petitioner that the Respondent would not be appearing at the formal hearing. The Respondent did not appear and therefore presented no evidence. Respondent was duly noticed and informed of the time and place of the hearing in accordance with Chapter 120 of the Florida Statues.
Findings Of Fact At all times material to this proceeding, the Respondent, Colonial Park Pub, Inc., was the holder of Beverage License No. 62-2029-SRX, Series 4-COP. This license was issued to the premises known as the Colonial Park Pub and Restaurant, located at 8239 46th Avenue North, St. Petersburg, Florida. The license held by Respondent is a special restaurant license. After receiving a complaint about the licensed premises, Beverage Officer G. L. Hedge on July 26, 1983, went to the licensed premises to perform an inspection. A food inventory revealed the following food items stored on the licensed premises: In the kitchen, in the freezer closest the entrance was approximately: 15 slices of bacon 8 slices of turkey 20 slices of pickles 3 onions 3 tomatoes 2 slices of American cheese 10 oz. of tuna fish 25 slices of Pastrimi hot dogs slices of roast beef 1b. of American cheese 1bs. of Swiss cheese 1 six 1b. can of sliced pineapple In the freezer in the middle of the kitchen the following was found: 2 loaves of bread 5 sandwich buns 8 submarine rolls 4 heads of lettuce 2 celery stalks 1 gallon of milk 4 lemons 13 limes 34 In tomatoes the stand-up icebox was found the following food: 3/4 of a cantalope 3 1/2 sticks of margarine 12 rolls 2 1/2 20 oz. bags of mixed vegetables 4 bags of hard rolls 7 hot dogs 2 loaves of Jewish bread 4 slices of salami 3 slices of ham In the food storage chest was found the following food: 7 cans of pickle spears 99 oz. 2 1 1b. bags of potato chips 2 cans of red beans 6 1bs. 15 oz. 4 cans of tuna fish 11 1bs. 2 1/2 oz. This was not sufficient food to prepare 150 full course meals as defined in Rule 7A-3.15, Florida Administrative Code. The licensed premises had the appearance of a lounge and not a bona fide restaurant operation. There were no silverware, menus, plates, or table cloths on any of the tables. The premises were dimly lit and no one was observed eating any meals. The inspection occurred at approximately 2:15 p.m. There were approximately 30 meals per day served at the licensed premises and only sandwiches were served after approximately 8:00 p.m. The menu stated that dinners were not served after 7:30 p.m. During the period May 1982, through April 1983, the Colonial Park Pub and Restaurant had total gross sales of $197,564.07. Of this total, beverage sales were $135,530.17 and food sales were $62,033.90. Food sales for the year constituted 31 percent of sales. During this same period, beverage purchases amounted to $69,442.76 versus food purchases of $19,046.89. There were only two months, May and June 1982, where the Respondent even approached food sales equalling 51 percent of gross sales.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Petitioner enter a final order finding the Respondent guilty of the violations charged in the Notice to Show Cause and revoking beverage license No. 62-2029-SRX. DONE AND ORDERED this 9th day of April 1984, 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 9th day of April, 1984. COPIES FURNISHED: Louisa Hargrett, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 John L. Waller, Esquire The Legal Building 447 3rd Avenue, Suite 403 St. Petersburg, Florida 33701 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
The Issue Pursuant to a Notice to Show Cause issued November 22, 1982, the Respondent was charged with two violations of the beverage laws of this state. Respondent was charged with allowing a person under 19 years of age to consume alcoholic beverages on her licensed premises. Respondent was also charged with continuing to sell alcoholic beverages after discontinuing the sale of full course meals in violation of Florida Statute 561.20(3)(1981) and Rule 7A-3.15, Florida Administrative Code. At the formal hearing, Petitioner called as witnesses Mr. W. R. Wiggs, a beverage officer for the Division of Alcoholic Beverages and Tobacco; Mr. James Pistole, a deputy for the Hillsborough County Sheriff's Department; and Joe Circhirillo, also a deputy for the Hillsborough County Sheriff's Department. Respondent testified on her own behalf and called as witnesses Kathryn Singer, James D. DeBusk, and Heidi Buzbee. Petitioner offered no exhibits and Respondent offered and had admitted into evidence one exhibit consisting of four photographs. Counsel for the Petitioner submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not adopted herein, they were considered and determined by the Hearing Officer to be irrelevant to the issues in this cause or not supported by the evidence.
Findings Of Fact At all times material hereto, Respondent held Beverage License No. 39- 00771, SRX Series 4-COP, issued to Sharon's Surf-n-Turf, located at 111 East Shell Point Road, Ruskin, Florida. During the course of the hearing, it was stipulated by and between the parties and it is now found that the beverage referred to in Count I of the administrative complaint was an alcoholic beverage. On October 29, 1982, W. R. Wiggs, an investigator for the Division of Alcoholic Beverages and Tobacco, went to the licensed premises of Sharon's Surf- n-Turf Restaurant and Lounge. He arrived at approximately 9:30 p.m. and the lounge area was full of patrons. Before entering the licensed premises, Investigator Wiggs observed a sign outside the restaurant which reflected that the restaurant was open from 11:00 a.m. to 10:00 p.m. and there was live entertainment from 9:30 p.m. to 3:00 a.m. Beverage Officer Wiggs was accompanied by Beverage Officer Miller. Upon entering the licensed premises, Wiggs and Miller sat at the bar and each ordered a Michelob beer. Beverage Officer Miller asked if he could order a full course meal and the bartender responded that the kitchen was closed. Beverage Officers Miller and Wiggs were in the licensed premises approximately one and one-half hour and observed no food being served. The patrons in the lounge were consuming alcoholic beverages. The lights were not on in the restaurant portion of the licensed premises, and the door to the restaurant was locked. Neither Officer Wiggs nor Officer Miller checked the kitchen to determine if it was in fact closed. While in the licensed premises, Officer Wiggs, along with Deputy James Pistole, of the Hillsborough County Sheriff's Department, observed a young lady named Tammy Almond, sitting at one of-the tables and consuming an alcoholic beverage. She appeared to be younger than 19 years of age. After arresting Ms. Almond, it was determined from her driver's license that she was, in fact, 18 years of age, having a date of birth of March 28, 1964. When Officer Wiggs and Deputy Pistole arrested Ms. Almond, she stated that the drink which was seized belong to someone else and she was sipping out of it. There was no evidence that Tammy Almond had purchased the drink or that she had been personally served the drink. At the time Tammy Almond was arrested, all other persons in the lounge who appeared to be possibly underage were asked for identification. Tammy Almond was the only minor in the licensed premises that evening. Tammy Almond had previously been married and was now divorced. The Respondent and her employees were aware of her prior marriage. On this evening, James D. DeBusk was checking identification at the door to the licensed premises. He had checked Tammy Almond's identification and it had reflected that she was two or three months over 19 years of age. The identification appeared to be a Florida driver's license. There was nothing suspicious about the identification. The licensed premises always has a doorman checking identification on Wednesday night through Saturday night. The bartenders and waitresses would also check identification of patrons. The licensed premises is divided into a restaurant/ dining room area and a lounge. The lounge has tables, chairs, a dance floor, and bandstand. Food is served in the dining room area as well as the lounge area. Menus for food are posted on the wall just inside the doorway of the lounge. The Respondent, prior to and at the time of the incident involving Tammy Almond, had a strict policy against allowing minors to consume alcoholic beverages on the licensed premises. On the nights when the lounge is busiest, Wednesday through Saturday, a doorman is on duty to check the identification of persons entering the lounge. Waitresses and bartenders were instructed to check the identification of persons who appeared to be younger than 19 years of age. The Respondent's policy was to require two acceptable forms of identification whenever a person produces or shows a questionable identification. If they cannot produce such identification, they are not permitted to enter the licensed premises. The restaurant and lounge are managed and supervised by the Respondent. At the time of Tammy Almond's arrest, the Respondent was in the kitchen area of the licensed premises training a new cook. Food is served at the Respondent's licensed premises from 11:00 a.m. to closing time. On the evening of October 29, 1982, the kitchen was open and food was actually ordered. At least four meals of steak and eggs were ordered and served after midnight. The licensed premises is primarily a restaurant operation and serves several different types of full course meals. These full course meals were available on the evening of October 29, 1982.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be found not guilty of the violations charged in the Notice to Show Cause and that such Notice to Show Cause be dismissed. DONE and ENTERED this 27th day of June, 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 27th day of June, 1983. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Paul S. Carr, Esquire Post Office Box 965 Ruskin, Florida 33570 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
The Issue The ultimate issue in this case is whether the Petitioner's application for a special (SRX) restaurant alcoholic beverage license should be granted.
Findings Of Fact Based on the stipulations of the parties, on the testimony of the witness at the hearing, and on the exhibits received in evidence at the hearing, I make the following findings of fact: Stipulated Facts The special restaurant license is sought for the Brass Elephant Restaurant within the corporate limits of the City of Sanibel, Florida. The restaurant is located on a 7.7-acre parcel of property adjacent to the Gulf of Mexico. The restaurant is located within a resort complex known as the Sanibel Island Hilton. Seating within the restaurant itself is limited to 100 seats by court order and zoning regulations of the City of Sanibel. No bar is maintained within the restaurant itself. The Brass Elephant Restaurant derives more than 51 percent of its revenue from the sale of food and non-alcoholic beverages. The Brass Elephant Restaurant has in excess of 2,500 square feet of service area. The Sanibel Island Hilton is being operated as a first-class destination resort. Hilton Corporation has stringent constraints on the operation of such a resort and has made special exceptions for this resort in light of the special zoning and building restrictions imposed by the City of Sanibel on the resort area; these special exceptions allow, inter alia, separate buildings and outside walkways. The restaurant in question is an accessory use to the Hilton Hotel, and is not an autonomous restaurant. There is no separate sign advertising the restaurant as an individual entity. Access can only be gained from the hotel grounds. By virtue of the development permit issued by the City of Sanibel, the Hilton is precluded from operating a saloon, lounge or restaurant separate and apart from its food service operation. Additional Facts Proved at Hearing The Petitioner also has a banquet facility on the premises known as the "Commodore Suite." It is located approximately 250 feet from the Brass Elephant. Meals for the Commodore Suite are prepared at the kitchen facility in the Brass Elephant. On many occasions patrons of the Commodore Suite have been served at tables simultaneously with those in the Brass Elephant, thereby making the total patrons served at one time at the two locations more than 150. The Petitioner has available on the resort premises all of the necessary equipment to serve more than 150 persons at one time in the Brass Elephant, though the City of Sanibel prohibits it from having more than 100 seats in the restaurant. In addition to the restaurant and the banquet room, there is also a pool bar on the Petitioner's resort premises. The restaurant, pool bar, and banquet room are physically separate from each other. The distance between the restaurant and the banquet room is approximately 250 feet and the distance between the restaurant and pool bar is about the same. There are no separate walkways from the various buildings to the restaurant. To walk from the restaurant to the banquet room, one has to walk across a street, part of a parking lot, and around or under one of the other buildings at the resort. To walk from the pool bar to the restaurant or the banquet room, one has to walk around or through another building. The foregoing paragraphs numbered 1 through 16 comprise all of the findings of fact in this case. Such findings include the substance of all of the findings proposed by the Petitioner and the substance of the vast majority of the facts proposed by the Respondent. To the extent I have not made certain proposed findings of fact, such proposed findings are irrelevant and immaterial to the issues to be decided in this case.
Recommendation For all of the reasons set forth above, I recommend that the Division of Alcoholic Beverages and Tobacco issue a Final Order denying the application of Shell Harbor Group, Inc., for a special restaurant liquor license. DONE and ORDERED this 1st day of May, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH 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 May, 1985.
The Issue Whether Respondent violated Section 562.12(1), Florida Statutes, by selling alcoholic beverages in a manner not permitted by its license and, if so, the penalties that should be imposed.
Findings Of Fact The Respondent, Sunny South Lodge, No. 671, holds license number 60-000784, series 11-C, authorizing it to sell alcoholic beverages on the premises of Sunny South Lodge No. 671, located at 23 Southwest 9th Avenue, Delray Beach County, Florida (the licensed premises). At the time of the formal hearing, Sammie L. Joseph was the President and Exalted Ruler of Sunny South Lodge No. 671. Based on a complaint from the Delray Beach Police Department, Petitioner initiated an investigation on November 8, 1996, to determine whether Respondent was selling alcoholic beverages in a manner not permitted by its license. On December 20, 1996, Johnnie Wilson, a Special Agent employed by Petitioner, went to the licensed premises to investigate alcoholic beverage sales to nonmembers. Agent Wilson entered the premises and paid a $3.00 entrance fee. When he paid this fee, someone stamped his hand with a mark that was not legible. The stamp was to identify patrons who had paid the cover charge. Agent Wilson was not a member of the club or a guest of any member of the club. At no time did Agent Wilson represent himself as being a member of the club or as being the guest of a member. Agent Wilson purchased from a bartender inside the premises two alcoholic beverage drinks, each containing Tanqueray gin. Agent Wilson paid $4.00 for each drink. No one, including the bartenders inside the premises, asked Agent Wilson whether he was a member of the club or the guest of a member. On January 10, 1997, Special Agent Wilson returned to the licensed premises as part of his investigation. Agent Wilson entered the premises, paid a $2.00 entrance fee, and signed a fictitious name in a spiral notebook. Agent Wilson was not a member of the club or a guest of any member of the club. At no time did Agent Wilson represent himself as being a member of the club or as being the guest of a member. Agent Wilson purchased from a bartender inside the premises two alcoholic beverage drinks, each containing Tanqueray gin. Agent Wilson paid $4.00 for each drink. No one, including the bartenders inside the premises, asked Agent Wilson whether he was a member of the club or the guest of a member. Respondent holds an alcoholic beverage club license issued pursuant to Section 565.02(4), Florida Statutes, which authorizes the club to sell alcoholic beverages only to members and nonresident guests. Respondent has had three prior administrative actions filed against its alcoholic beverage license for violation of Section 562.12(1), Florida Statutes, in 1994, 1995, and 1996. All three prior administrative actions were settled through the payment of a civil penalty. The Division has standard penalty guidelines for violations of the alcoholic beverage law which are set forth in Rule 61A-2.022, Florida Administrative Code. The Division's standard penalty for a fourth occurrence violation of Section 562.12(1), Florida Statutes, is revocation of licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's alcoholic beverage license number 60-00784, series 11-C, be revoked. DONE AND ENTERED this 23rd day of October, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1997
The Issue Whether Respondent's pronouncement that special restaurant licenses issued prior to January 1, 1958, that have not remained in "continuous operation" are thereby (as a result of their lack of "continuous operation") rendered invalid pursuant to Section 561.20(5), Florida Statutes, and therefore not subject to delinquent renewal pursuant to Section 561.27, Florida Statutes (Challenged Statement) is a rule that violates Section 120.54(1)(a), Florida Statutes, as alleged by Petitioners.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: There are various types of DABT-issued licenses authorizing the retail sale of alcoholic beverages. Among them are quota licenses, SRX licenses, and SR licenses. All three of these licenses allow the licensee to sell liquor, as well as beer and wine. Quota licenses, as their name suggests, are limited in number. The number of quota licenses available in each county is based upon that county's population. SRX and SR licenses are "special" licenses authorizing the retail sale of beer, wine, and liquor by restaurants. There are no restrictions on the number of these "special" licenses that may be in effect (countywide or statewide) at any one time. SRX licenses are "special restaurant" licenses that were originally issued in or after 1958.2 SR licenses are "special restaurant" licenses that were originally issued prior to 1958. For restaurants originally licensed after April 18, 1972, at least 51 percent of the licensed restaurant's total gross revenues must be from the retail sale of food and non- alcoholic beverages.3 Restaurants for which an SR license has been obtained, on the other hand, do not have to derive any set percentage or amount of their total gross revenues from the retail sale of food and non-alcoholic beverages. DABT-issued alcoholic beverage licenses are subject to annual renewal.4 License holders who have not timely renewed their licenses, but wish to remain licensed, may file an Application for Delinquent Renewal (on DABT Form 6015). Until recently, it was DABT's longstanding policy and practice to routinely grant applications for the delinquent renewal of SR and other alcoholic beverage licenses, regardless of the reason for the delinquency. DABT still routinely grants applications to delinquently renew alcoholic beverage licenses other than SR licenses, but it now has a "new policy" in place with respect to applications for the delinquent renewal of SR licenses. The "new policy" is to deny all such applications based upon these SR licenses' not having been in "continuous operation," action that, according to DABT, is dictated by operation of Section 561.20(5), Florida Statutes, a statutory provision DABT now claims it had previously misinterpreted when it was routinely granting these applications. Relying on Section 561.20(5), Florida Statutes, to blanketly deny all applications for the delinquent renewal of SR licenses was the idea of Eileen Klinger, the head of DABT's Bureau of Licensing. She directed her licensing staff to implement the "new policy" after being told by agency attorneys that this "was the appropriate thing [from a legal perspective] to do." As applicants applying to delinquently renew their SR licenses (which were both originally issued in 1956), Petitioners are substantially affected by DABT's "new policy" that SR licenses cannot be delinquently renewed because they have not been in "continuous operation," as that term is used in Section 561.20(5), Florida Statutes. Their applications for the delinquent renewal of their licenses would have been approved had the status quo been maintained and this "new policy" not been implemented. Abkey filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 2005) on February 21, 2007. On the application form, Abkey gave the following "explanation for not having renewed during the renewal period": "Building was sold. Lost our lease." On April 2, 2007, DABT issued a Notice of Intent to Deny Abkey's application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 2005, therefore it did not comply with the requirements and is no longer valid. Amy Cat filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 1999) on December 6, 2006. On the application form, Amy Cat gave the following "explanation for not having renewed during the renewal period": "Building was closed." On June 8, 2007, DABT issued a Notice of Intent to Deny Amy Cat's application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 1999, therefore it did not comply with the requirements and is no longer valid. SR licenses will not be allowed to be moved from the location where the license was originally issued.
Findings Of Fact Adventure Construction & Canvas, Inc. (Adventure or Applicant) applied to the Department of Environmental Regulation (DER) on November 4, 1986, modified on December 22, 1986, for a permit to construct a single four foot by 60 foot pile-supported dock in the Marco River (Class II waters), a natural, navigable water body in Collier County, Florida. The dock structure applied for would extend 60 feet eastward into the water from the southeast corner of the terminal platform of Adventures existing dock. The extension would lengthen the existing dock to a point almost as far into the water as the existing docks of the Applicant's neighbors to the north and south. As originally designed, the dock would run to the east 63 feet, with one 20 by 3 foot finger pier to the south, then run south 20 feet (by 4 feet), then run east again 20 feet. This original design would have extended approximately 20 feet further east into the Marco River than either the dock of the neighbor to the north, the Sunrise Bay Resort And Club Condominium Association (the Sunrise Club), or the dock of the neighbor to the south, the petitioners, the Riverside Club Condominium Association, Inc., (the Riverside Club) and Gary L. Hornsby, d/b/a Captain Jim's Motel Fishing Resort (Captain Jim's). As originally designed, the dock extension would have been approximately 30 feet from the Sunrise Club dock, at the closest point (the southern end of the "T" section at the waterward end of the Sunrise Club dock) and approximately 60 to 65 feet from the petitioners' dock at the closest point (between the northern end of the "T" section at the waterward end of the Riverside Club/Captain Jim's dock and the southernmost part of the proposed dock, as originally designed.) Although it would be in Class II waters, and there are shellfish in the vicinity, the bottom in the immediate area around the docks and proposed dock extension is sandy, and there are no shellfish beds, seagrass or other biologically significant features in the immediate area. With standard permit conditions, there are reasonable assurances that the proposed dock extension would not adversely affect marine or other wildlife. The Applicant's property and existing dock is under lease to Yacht Services, Inc., for five years with options to renew. The lessee conducts a business on the property consisting of: boat sales; sale and installation of marine radio and navigation equipment and of pre-made canvas sails and boat tops, covers and canopies; and boat engine repairs and tune-ups. Only minor engine repairs and tune-ups are and would be performed on the docks. These operations would not introduce oil or grease into the water and would not pollute the water. More major repairs are and would be made by driving or towing the boat to be repaired to the nearby municipal dock and trailing the boat over roads to the building on the upland portion of the Adventure property, some 150 to 200 feet from the river bank, where Yacht Services performs more major repairs. With standard permit conditions, there are reasonable assurances that the proposed dock extension will not adversely affect water quality in the Marco River. On review of the application, the DER perceived a navigation problem posed by the original location and design of the proposed dock extension. Although parts of the Sunrise Club dock are now under enforcement proceedings as having been constructed without a permit, the DER still recommended moving the location of the proposed dock approximately 20 feet to the south, putting approximately 50 feet between the two docks at the closest point. At the same time, the DER recommended that the Applicant (and its lessee) be limited to a single, straight four foot by 60 foot dock, eliminating the finger piers and turns. As a result, the distance between the proposed dock, as modified, and Captain Jim's dock also would increase, to 70 feet between the two closest points. In addition, the DER recommended that the Applicant (and Yacht Services) be limited to the use of only the north side of the dock extension for docking. The applicant agreed to the DER's recommendations and modified its application accordingly on or about December 22, 1986. But when the DER gave notice of its intent to grant the application, as modified, and issue a corresponding permit, the DER inadvertently omitted the limitation to use of only the north side of the dock for docking. When this omission was brought to the Applicant's attention at the final hearing, the Applicant, through Yacht Services' principal, reaffirmed the Applicant's acceptance of this limitation. The petitioners put on no evidence placing in controversy the Applicant's assurances, accepted by the DER as reasonable, that the proposed dock would have no significant adverse impact on water quality or on marine or other wildlife or any other biologically significant features of the Marco River. The only evidence the petitioners presented involved the alleged effect of the proposed dock on navigation. The current at the site of the proposed dock is relatively swift. Each day, there usually are two tidal periods, each lasting 12-13 hours. During each tidal period, the tides flow in (from north to south) and out (from south to north and somewhat stronger than the incoming tides.) The peak tide lasts for approximately one hour, preceded by approximately three to four hours of a strong, gradually increasing tide. Then there usually is approximately 90 minutes of slack tide before the tide gets stronger again (in the other direction.) During new moons, which occur for three days every 28 day cycle, the tidal flow is magnified. During periods of strong tides (and correspondingly strong current in the river at the site of the proposed dock), docking can be difficult at the Applicant's dock, the Sunrise Club dock, Captain Jim's dock and several other docks in the area. The difficulty encountered depends on the strength of the tidal current, the experience of the boat operator and the kind of boat (design, size and power.) But, generally, the distances between the proposed dock and the existing docks are enough for a reasonably experienced boat operator to use all three docks for boats of the size (15 to 30 feet) and kind normally used in the area without too much difficulty. Many of the boaters who can be expected to use these docks are quite inexperienced "snow-birds" wintering or vacationing in the area. Some of these can be expected to have difficulty docking and shoving off from these docks in strong tides with or without the proposed dock extensions. With the proposed dock extension, some might find themselves bumping the new dock, coming to rest at it or being pinned to it temporarily while docking at or leaving the Sunrise Club and Caption Jim's dock (just as this now occasionally happens with the existing Adventure dock and the other docks in the area.) Experienced boaters might have to alter their normal and preferred approach to the Sunrise Club and Captain Jim's dock as a result of Adventure's proposed dock extension and, depending on the factors previously mentioned, may on occasion find it difficult to dock there at all. (For example, if the docks are busy and the boat is very large.) There is access to Riverside's dock from both the north and south. Currently, access from the south is sometimes restricted during strong outgoing tides due to the fact that a boat moored to the south end of the dock may not possess enough power to pull away from the dock. During these times, access is easier from the north, the side closest to the proposed dock. There was no evidence as to how often the currents render the south side of Riverside's dock inaccessible to boats. However, boats are often moored on that side. During those times when the currents inhibit access to the south side of Riverside's dock (peak outgoing tides), there is access from the north. The presence of Adventure's proposed dock may potentially be a hindrance to boats attempting to gain access from this direction. Currently, boaters navigating larger boats in this area cut a wide angle to allow themselves to face directly into the current as they near the dock. This wide angle takes them across Riverside's riparian line near the area of Adventure's proposed dock. While the presence of this dock would not allow for such a wide angle in the future, the typical size boat using Riverside's dock (under 30 feet) does not need to make this wide angle. Even inexperienced boaters will still be able to make this approach, albeit with some difficulty. Exiting Riverside's dock from the north may also be a potential problem if the proposed dock is built. When docked on the northern side during strong outgoing tides, a boater often must back out into the area where Adventure's dock is proposed to be built and then execute a turnaround before heading into the channel. However, this is necessary only during the strongest outgoing tides; under any other situation, a boater can depart from the dock and head into the channel without having to cross the riparian line. It is the strength of the currents in the area that causes concern about the proposed dock's impact on navigation. The combination of existence of this dock and strong currents will make it more difficult for inexperienced boaters to dock on the northern side of Riverside's pier during peak outgoing tides. During incoming tides or slack times, those boaters (who make up a majority of Riverside's clientele) would have no problems entering or leaving the dock from either direction. Experienced boaters will still be able to access and leave the dock from either direction at any time of the day. In short, the potential for this proposed dock to create a navigational hazard will exist mainly during peak outgoing tides and even then there are other factors (, experience of the pilot, boat size, engine strength) that will determine the ability of boaters to navigate in the area. The proposed dock will have absolutely no impact on navigation in the channel to the east of the three docks involved in this case. There are reasonable assurances that the proposed dock will not be contrary to the public interest.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Environmental Regulation enter a final order granting the application of Adventure Construction & Canvas, Inc., as modified, and issuing a permit described in the Notice Of Intent To Issue (with the additional limitation that only the north side of the proposed dock extension be used for docking.) RECOMMENDED this 15th day of October, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0589 To comply with Section 120.59(2), Florida Statutes (1985), explicit rulings are made on the parties' proposed findings of fact. Petitioners' Proposed Findings Of Fact. Accepted and incorporated (although the number in the third sentence properly should refer to linear feet of distance, not to area.) Except for the fifth sentence, subordinate to facts found. The fifth sentence is rejected as contrary to the greater weight of the evidence and facts found. Last two sentences, rejected as conclusion of law and argument; the rest is subordinate to facts found. 4-5. Subordinate to facts found. Last sentence, rejected as argument (and also does not recognize the additional, inadvertently omitted limitation that boats not dock on the south side of the dock); the rest is subordinate to facts found. Accepted, but subordinate and unnecessary since it was not proven that DER's policy is to get Coast Guard or Marine Patrol input in all "navigation" cases. First sentence, subordinate to facts found; rest, accepted but unnecessary (in light of Findings of Fact). Subordinate to facts found. Subordinate to facts largely contrary to those found but in part consistent with facts found. Subordinate to facts found. Last sentence rejected as subordinate to facts contrary to the greater weight of the evidence; the rest, subordinate. Last sentence, rejected as contrary to the greater weight of the evidence; rest, rejected as contrary to facts found. Subordinate to facts already addressed. First sentence, subordinate to facts contrary to the greater weight of the evidence; rest, subordinate to facts accepted but unnecessary in light of permit condition 6, requiring compliance before construction begins. Rejected as contrary to facts found. Adventure's Proposed Findings Of Fact. Subordinate to facts found. Accepted and incorporated. 3.-6. Subordinate to facts found. Argument. Accepted and, to the extent necessary, incorporated. DER's Proposed Findings Of Fact. 1.-20. Accepted and, to the extent necessary, incorporated. COPIES FURNISHED: G. Donald Thomson, Esquire 801 Laurel Oak Drive Suite 300 Naples, Florida 33963 Claire A. Duchemin, Esquire Post Office Box 1833 Tallahassee, Florida 32302 Frederick C. Kramer, Esquire 870 Bald Eagle Drive Suite 18 Marco Island, Florida 33937 Richard Grosso, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
