The Issue Whether Respondent's beverage license should be suspended or revoked, or a civil penalty assessed, for an alleged violation of s. 562.12, Florida Statutes, pursuant to s. 561.29(1)(b), F.S., as set forth in Notice to Show Cause issued by Petitioner on March 28, 1977. The hearing in this case was scheduled for 9:00 A.M. on December 8, 1977 at Petitioner's business address in Tallahassee, Florida. Notice of Hearing was sent to the Respondent on November 21, 1977 by mail. The notice of hearing was not returned by the Post Office as being undelivered. Neither the Respondent nor any representative in her behalf appeared at the hearing. Accordingly, the Hearing Officer advised counsel for the Petitioner that the matter would be conducted as an uncontested proceeding.
Findings Of Fact The Respondent Margaret P. Muse operates Club 40 located at Midway, Florida, and is authorized to sell beer and wine for consumption on the premises incident to a Class 2-COP license issued by the Petitioner. On August 15, 1976 at approximately 12:05 P.M., Gary Sams, a beverage officer with the Tallahassee field office of the Petitioner, accompanied by a reliable informant, went to the vicinity of Respondent's licensed premises. There, Sams searched the informant and found that he possessed no alcoholic beverages or currency. Sams gave the informant $5.00 and told him to go to the residence immediately east of the licensed premises. The informant entered the house, remained approximately 5 minutes and returned to Sams with a one-half pint unsealed bottle of Calverts Extra whiskey and a twelve-ounce sealed can of Schlitz beer in his possession. The informant told Sams that he had purchased the liquor from one Lou Ethel Palmer for $2.75 and that she had obtained it from a room in the house. Sams and the informant initialed the containers and Sams took them to the evidence room of his agency where they remained until the date of the hearing (testimony of Sams, Petitioner's Exhibit 1). On August 22, 1976 at approximately 10:30 P.M., Sams returned to the premises with the same informant, and followed the same procedures as to a prior search of his person and directions to enter the residence again. Sams observed the informant do so where he remained for a period of time and then returned to Sams outside and turned over a one-half pint unsealed bottle of Calverts Extra whiskey. The informant stated that while in the residence, he had ordered the whiskey from Palmer, but that another female in the house had gone outside to obtain the whiskey. When she returned with it, the informant paid her $2.75 for the same. By the informant's description of the female who had sold the whiskey to him, Sams determined that she was the Respondent Margaret P. Muse. The two men initialed the container and Sams placed it in the evidence room of his agency where it remained until the date of this hearing (testimony of Sams, Petitioner's Exhibit 2) On August 23, 1976, warrants authorizing search of the Palmer residence were obtained by Petitioner. On August 29, Sams and deputy sheriffs of Gadsden County proceeded to the residence in question where they were admitted by Muse. Arrest warrants were served on Muse and Palmer and the premises were searched. In the bedroom several half pints of vodka and whiskey were found and seized. Two cases of 12-ounce cans of Schlitz beer were found in an outbuilding adjacent to the house and also seized. Muse stated at the time that the beer was being stored in the outbuilding for the purposes of sale at the licensed premises (testimony of Sams).
Recommendation That the charge against Respondent, Margaret P. Muse, be dismissed. DONE and ENTERED this 16th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Francis Bayley, Esquire Department of Business Regulation The Johns Building Tallahassee, Florida Mrs. Margaret P. Muse P.O. Box 116 Midway, Florida 32343 PETITIONER'S EXHIBIT 1 One half-pint bottle labeled "Calvert Extra" (half full of liquid) One sealed can (12 ounce) Schlitz beer PETITIONER'S EXHIBIT 2 One full unsealed half-pint bottle labeled "Calvert Extra"
The Issue Whether or not on or about May 25, 1976, Leroy Francis, a licensed vendor, or his agent or employee, to wit: Lela Mae Caldwell, did have in her possession, on his licensed premises, alcoholic beverage to, wit: a one half pint bottle of Seagram's Extra Dry Gin, not authorized by law to be sold under his license, contrary to s. 562.02, F.S. Whether or not on or about June 2, 1976, Leroy Francis, licensed under the beverage laws, or his agent or employee, to wit: Lela Mae Caldwell, did sell a one half pint of Seagram's 7 Crown Whiskey, on his licensed premises to a Guy William, said sale not permitted by his license, contrary to s. 562.12, F.S. Whether or not on or about June 7, 1976, Leroy Francis, licensed under the beverage laws, or his agent or employee, to wit: Lela Mae Caldwell, did have in her possession, certain alcoholic beverages, to wit: 185 assorted bottles of tax paid whiskey and 13 assorted bottles of wine, with the intent to sell said alcoholic beverages without a license, contrary to s. 562.12, F.S.
Findings Of Fact From May 25, 1976, up to and including the date of the hearing, Leroy Francis, t/a Palm Beer Garden was the holder of license no 30-71, series 1-COP with the State of Florida, Division of Beverage. The license was for a premises located at 22 South Adams Street, Quincy, Florida. On May 25, 1976, Officer Garry Sands and Officer John Harris of the State of Florida, Division of Beverage went to the aforementioned licensed premises. Officer Sands went to the rear and Officer Harris went to the front. Officer Sands observed a black female leave the licensed premises from the back and go to a white 1969 Chevrolet car, open the trunk and remove a bottle of whiskey, place it in her shirt and return to the premises. He then entered the bar together with Officer Harris and retrieved a one half pint bottle of Seagram's Extra Dry Gin from the same female, while in the licensed premises. This bottle is Petitioner's Exhibit number 4, admitted into evidence. The woman was identified as Lela Mae Caldwell who on another occasion had signed an inspection paper as being an employee in the licensed premises. The series 1- COP license does not allow sale of said alcoholic beverage on the premises. On June 20, 1976, Officer Sands returned to the premises with one Guy William. Guy William is an undercover informant for the Petitioner. This trip was made around 8:30 P.M. Officer Sands checked to see that Guy William did not have any liquor or money on his person and then gave Guy William $5.00 to attempt to purchase liquor from within the licensed premises. Guy William left Officer Sands and was observed going directly through the rear door of the licensed premises. While in the licensed premises Guy William asked Lela Mae Caldwell for a half pint bottle of alcoholic beverage and made such a purchase from Lela Mae Caldwell. Agent Sands, while at the rear of the building, observed a person go to the same white 1969 Chevrolet and remove a bottle of alcoholic beverage and return to the licensed premises Guy William saw a similar person leave the building and return with a bottle of alcoholic beverage. The alcoholic beverage which was purchased was admitted as Petitioner's Exhibit number 5. This alcoholic beverage was not allowed for sale under the series 1- COP license for the premises. Based upon the information supplied by the informant, Guy William, a search warrant was secured to allow a search of the 1969 white Chevrolet. On June 7, 1976, around 12:00 A.M. officers of the State of Florida, Division of Beverage returned to the licensed premises and served a search warrant on Lela Mae Caldwell, who was working at that time. Leroy Francis, the licensee was also seen in the area of the bar at that time. The officers went to the white 1969 Chevrolet and Leroy Francis returned to the car and gave them the key which unlocked the trunk, in which was found an assortment of alcoholic beverages to include 185 assorted bottles of tax paid whiskey and 13 assorted bottles of tax paid wine. These bottles constitute Exhibit number 6, admitted into evidence. After being advised of his rights, Leroy Francis, the licensee, admitted that he had keys to the car as well as Lela Mae Caldwell, his common law wife.
Recommendation It is recommended, based upon the facts as shown in the Rules to Show Cause, that the license of Leroy Francis to sell alcoholic beverages be suspended for a period of 60 days. DONE and ENTERED this 13th day of December, 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: Larry D. Winson, Esquire Staff Attorney Division of Beverage 725 Bronough Street Tallahassee, Florida 32304 Leroy Francis 22 South Adams Street Quincy, Florida
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the stipulations of the parties, the documentary evidence presented and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent, Ceola Virginia Cutliff is the holder of Alcoholic Beverage License No. 23-06844, Series 2-COP, for a licensed premises known as Club Night Shift, located at 6704 N.W. 18th Avenue, Miami, Dade County, Florida. On or about September 18, 1987, Division of Alcoholic Beverages and Tobacco (DABT) Investigators R. Campbell, R. Thompson and C. Houston entered the licensed premises as part of an ongoing narcotics task force investigation. An individual named "Frances" was on duty at the bar. The investigators observed Frances sell what appeared to be narcotics to several patrons on the licensed premises. At approximately 7:50 p.m., Investigator Houston approached Frances and asked to purchase narcotics. Frances and Investigator Houston then went to the rear of the bar where Frances sold 2 pieces of "crack" cocaine to Investigator Houston for $10.00. Approximately fifteen minutes later, Investigator Campbell asked Frances if he could purchase narcotics. Frances presented a piece of rock cocaine which Investigator Campbell purchased for $5.00. This transaction took place in plain view of other individuals in the licensed premises. Frances, upon making a sale, would take the money and give it to a black male called "Spider" a/k/a Arthur Dorsey. Spider would then retain the money. On September 19, 1987, Investigators Houston and Thompson again entered the licensed premises known as Club Night Shift. On duty that night, was a black female known as "Josephine". Spider was also on the licensed premises positioned in the D.J.'s booth, apparently trying to fix a speaker. Houston and Thompson had observed a black male, named "Gary", exchanging an unknown substance for money with various individuals, immediately outside the licensed premises. Gary, upon receiving money in exchange for the unknown substance, would go into the licensed premises and hand the money to Spider. Later that evening, Investigator Houston noticed that Spider had a brown paper bag in his hand. Gary and Spider proceeded to the bathroom on the licensed premises. After exiting the bathroom, Gary left the premises and Spider went behind the bar and began counting a large amount of money onto the counter of the bar. Spider placed the money in his back pocket. Investigator Thompson then inquired whether Spider could sell him some crack cocaine. Spider acknowledged that he could and proceeded with Thompson to the rear of the bar, where Spider sold Thompson 20 pieces of rock cocaine for $100.00. On September 22, 1987, Investigators Houston and Thompson again entered the licensed premises known as Club Night Shift. Bartender Josephine-was on duty at that time along with another black female known as "Niecey". When the investigators inquired as to the whereabouts of Spider, Niecey replied that "he went home to cook up the stuff because they were very low on supply." Niecey reiterated the above statement on numerous occasions when individuals would enter the bar searching for Spider. At approximately 10:30 p.m., Spider appeared on the licensed premises with a brown paper bag in his possession. Patrons that had been waiting outside the premises came inside and Niecey locked the doors to the front and rear exits of the bar. Spider went to the D.J.'s booth and pbured the contents of the paper bag onto the counter inside the booth. The bag contained approximately 200 small zip-lock bags containing suspected crack cocaine. The patrons who had been waiting outside for the arrival of Spider then proceeded to line up in front of the D.J.'s booth in order to make purchases. Niecey would take the money from the individual patrons and Spider would deliver the crack cocaine. Investigator Houston got in line and upon arriving at the booth, purchased 20 packets of crack cocaine from Spider in exchange for $100.00. These transactions took place in plain view on the licensed premises. On September 23, 1987, Investigators Houston, Thompson and Campbell entered the licensed premises known as the Club Night Shift. The barmaid on duty was Josephine. Spider was positioned in the D.J.'s booth making sales to patrons of what appeared to be crack cocaine. Investigator Campbell walked over to the D.J.'s booth and asked to purchase ten (10) pieces of crack cocaine from Spider. Approximately 200 zip-lock packets of suspected crack cocaine were positioned in front of Spider. Spider motioned for Campbell" to pick them out." Campbell then picked out ten (10) packets in exchange for $50.00 which he gave to Spider. This transaction occurred in plain view of other individuals on the licensed premises. Before leaving Spider went behind the bar, obtained a .357 magnum pistol, placed it inside his pants and exited the premises. On September 29, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. The bartender on duty was Josephine. Shortly after the investigators arrived, Spider appeared on the premises and went behind the bar where he took a pistol from inside his pants and placed it under the bar counter. Spider then removed a brown paper bag from under the bar counter and went to the D.J. s booth. Investigator Thompson proceeded to the D.J.'s booth and asked to purchase two (2) large pieces of crack cocaine. Spider reached into the bag and gave Investigator Thompson two (2) large pieces of crack cocaine in exchange for $100.00. On October 3, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. Investigator Campbell approached an unknown black male who Campbell had seen selling narcotics on prior occasions. Campbell made inquiries relative to the purchase of cocaine and the unknown black male indicated that he could sell Campbell crack cocaine. The unknown male then gave two five dollar ($5.00) pieces of crack cocaine to Investigator Campbell in exchange for $10.00. This transaction took place in plain view on the licensed premises. On October 6, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. Shortly after the investigators arrived, they observed Spider on the premises selling crack cocaine to patrons from the D.J.'s booth. Subsequently, Investigator Thompson went to the D.J.'s booth and asked to purchase twenty (20) pieces of crack cocaine. In response thereto, Spider left the licensed premises and proceeded to a pickup truck parked outside. Spider then retrieved a brown paper bag from the vehicle, returned to Investigator Thompson and handed him twenty (20) pieces of crack cocaine in exchange for $100.00. The substance purchased on this occasion was laboratory analyzed and found to be cocaine. The Respondent licensee admitted to being an absentee owner. The Respondent did not maintain payroll, employment or other pertinent business records. The licensee was aware that drugs were a major problem in the area surrounding the premises and that drug transactions were known to take place immediately outside of the licensed premises. The licensee did nothing to prevent the incursion of narcotics trafficking onto the licensed premises. The licensee, CeoIa Cutliff, is engaged to Arthur Dorsey. Ms. Cutliff gave Mr. Dorsey a key to the premises and knew or should have known that he was operating in the capacity of a manager on the licensed premises. Josephine, the bartender generally on duty, referred to Mr. Dorsey as "boss man" and Mr. Dorsey directed her activities in the licensed premises. Mr. Dorsey a/k/a Spider utilized the licensed premises as if they were his own and was operating in the capacity of a manager at the Club Night Shift.
Recommendation Based upon the foregoing, it is recommended that Respondent's beverage license 23-06844, Series 2-COP, located in Miami, Dade County, Florida, be revoked. DONE and ORDERED this 12th day of November, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 12th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4482 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in substance in Finding of Fact 1. 2. Adopted in substance in Finding of Fact 2. 2. (Petitioner has two paragraphs numbered 2) Adopted in substance in Finding of Fact 3. 3. Adopted in substance in Finding of Fact 4. 4. Adopted in substance in Finding of Fact 5. 5. Adopted in substance in Finding of Fact 6. 6. Adopted in substance in Finding of Fact 7. 7. Adopted in substance in Finding of Fact 8. 8. Adopted in substance in Finding of Fact 9. 9. Adopted in substance in Finding of Fact 10, 11 & 12. Rulings on Proposed Findings of Fact Submitted by the Respondent (None Submitted). COPIES FURNISHED: W. Douglas Moody, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 R. Scott Boundy, Esquire 901 E. Second Avenue Miami, Florida 33132 Honorable Van B. Poole Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Bell, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Daniel Bosanko Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact 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.
Recommendation 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 Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1994.
The Issue Is Petitioner entitled to the issuance of an alcoholic beverage license made available by the January 6, 1993, Quota License Drawing, Log No. 69-98 (the Drawing)?
Findings Of Fact On September 27, 2004, Petitioner under the trade name Warehouse Liquors, Etc., made an application for issuance of an alcoholic beverage license made available by the Drawing. On December 10, 2004, Respondent notified Petitioner that the license application had been denied leading to the formal hearing. At hearing it was revealed that Respondent had refused to issue the license under consideration based upon authority set forth in Subsection 561.15(3)(a), Florida Statutes (2004), which states: The Division may . . . refuse to issue a license under the Beverage Law to: Any person . . . the license of which under the Beverage Law has been revoked. . . after written notice that revocation . . . had been . . . brought against the license. The statutory authority cited above has pertinence in relation to the case Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, Petitioner v. Cadillac Jack's Saloon, Inc., d/b/a Cadillac Jack's Saloon, Respondent, Case No. RK15930196A, wherein by amended final order the Respondent's alcoholic license No. 15- 00435, Series 4COP was revoked effective January 17, 1995. That revocation was without prejudice for the named Respondent to apply for another license "contingent upon the filing of all outstanding reports; payments of all outstanding payments of surcharge principal; payment of all outstanding late penalty fees and interest; and, provided Respondent is otherwise qualified to hold said license." Although the amended final order in Case No. RK15930196A contemplated the possibility that application could be made for another license, that opportunity was conditioned upon the Respondent being otherwise qualified to hold the new license. Proof at hearing indicated that Petitioner in this cause was the license holder for license No. 15-00435, Series 4- COP. As a prior license holder, Petitioner made the present application for a new beverage license. In the present application, the question was asked, "Have you ever had any type of alcoholic beverage, or bottle club license, or cigarette, or tobacco permit refused, revoked or suspended anywhere in the past 15 years?" Petitioner answered that question in the negative. That answer was untrue given the circumstances in relation to action revoking alcoholic license No. 15-00435, Series 4-COP. This implicated consideration of whether Petitioner had the necessary qualifications in relation to good moral character as required by Subsection 561.15(1), Florida Statutes (2004), as a condition to issuing the present license in dispute. The untrue response made to the question in the application for the present license demonstrates that Petitioner is without the necessary good moral character.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a Final Order be issued denying Petitioner's application for issuance of the alcoholic beverage license made available by the Drawing. DONE AND ENTERED this 23rd day of June, 2005, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 2005. COPIES FURNISHED: Michael J. Wheeler, Esquire Department of Business and Professional Regulation Northwood Centre, Suite 6 1940 North Monroe Street Tallahassee, Florida 32399-2202 David Jecksovich Post Office Box 761 Cornellus, North Carolina 28031 David Jecksovich 66 Mount Desert Street Bar Harbor, Maine 03609 Jack Tuter, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based on the stipulations of the parties, the exhibits received in evidence (including Respondent's Exhibit No. 1), and the testimony of the witnesses at the hearing, I make the following findings of fact: Club 99, Inc., is the holder of alcoholic beverage license number 16- 1053-SRX, series 4-COP, doing business at 451 North State Road 7, Plantation, Broward County, Florida, as a bar and restaurant named Shangri-La. On August 7, 1984, the Plantation Police Department began a narcotics investigation at the licensed premises known as Club 99, Inc. d/b/a Shangri-La, holding license number 16-1053-SRX, series 4-COP, located at 451 North State Road 7, Plantation, Broward County, Florida. On this date Detective Dan Anderson entered the licensed premises undercover and was introduced to a white male bartender identified as Malcolm Perkins. Detective Anderson engaged in a conversation with Perkins regarding a narcotic known as MDA. Perkins explained that MDA was a mixture of heroin and speed and further stated that he could obtain MDA for Anderson at a price of $70.00 a gram or $10.00 a "hit." Detective Anderson also engaged in conversation about MDA with Scott Kiehl, the assistant manager at the licensed premises. Later that same evening Detective Anderson engaged in a conversation about cocaine with a white male bartender on the licensed premises known as "Paul" or "Miss Kitty." None of the employees with whom Detective Anderson discussed MDA or cocaine appeared to be alarmed or concerned about the discussion. On August 10, 1984, at approximately 9:30 P.M., Detective Anderson again entered the licensed premises in an undercover capacity and engaged in a conversation with a white male bartender identified as Richard Christian. Detective Anderson asked if he could buy a half gram of cocaine and Richard Christian answered in the affirmative stating that the price would be $35.00 for one half gram. Detective Anderson gave $40.00 in U.S. currency to Christian and Christian covered the money with a cocktail napkin. Christian took the money and shortly thereafter he placed a clear plastic bag containing a white powdery substance under a cocktail napkin and pushed it across the bar towards Detective Anderson. At this same time, Christian said, "It is underneath." After looking under the napkin, Anderson took the cocktail napkin and the small plastic bag and placed them in his left front pants pocket. On August 17, 1984, Detective Anderson returned to the licensed premises at approximately 10:00 P.M. 2/ On this occasion he met with a white male bartender named Malcolm Perkins. Detective Anderson asked if Perkins had obtained any MDA for him and Perkins answered in the negative. Detective Anderson asked if Perkins could get him any cocaine. Perkins answered in the negative but pointed out a waiter named Everett Campbell and suggested that Anderson ask Campbell about cocaine. Detective Anderson then approached the waiter identified as Everett Campbell and asked Campbell if he could get Anderson a half gram of cocaine. Campbell replied in the affirmative and said the price would be $35.00. Anderson agreed to the price. Later that evening Campbell approached Anderson and said that the person he gets the cocaine from was not in the bar and that, therefore, he could not deliver any cocaine to Detective Anderson. On August 18, 1984, at approximately 11:35 P.M., Detective Anderson entered the licensed premises and met with Everett Campbell. This time Campbell told Anderson that he would be able to obtain some cocaine. At approximately 12:05 A.M. on August 19, 1984, Detective Anderson gave Campbell $40.00 in U.S. currency. Campbell took the money and walked to an unknown location off the premises and returned in about five minutes. Campbell then handed Detective Anderson a small plastic bag containing a white powdery substance. Nothing was wrapped around the plastic bag. Detective Anderson held up the plastic bag to inspect it before putting it in his pocket. The other bartenders and a large number of patrons were nearby and could have seen what was happening. On August 21, 1984, at approximately 11:00 P.M., Detective Anderson entered the licensed premises. Anderson struck up a conversation with a white male patron identified as Dion Burl. Detective Anderson asked Burl if he could obtain some cocaine for Anderson. Burl replied in the affirmative and stated that it would cost $40.00 for one half gram. Anderson placed a cocktail napkin over two $20.00 bills and handed them to Burl. Burl took the money and walked to an unknown location. At approximately 11:30 P.M., Burl returned. He handed Detective Anderson a white cocktail napkin and a small clear plastic bag that contained a white powdery substance. Detective Anderson took the substance and placed it in his pants pocket. On August 23, 1984, Detective Anderson returned to the licensed premises and met with Everett Campbell at approximately 11:00 P.M. Campbell was working as a waiter that night. Detective Anderson asked Campbell if he could obtain a half gram of cocaine for Anderson. Campbell answered in the affirmative and said it would cost $40.00. Detective Anderson gave Campbell the money and a while later Campbell handed him a magazine titled "David" and said, "It's inside." Inside the magazine Detective Anderson found a small clear plastic bags containing a white powdery substance. Detective Anderson held the plastic bag up to inspect it before putting it in his pocket. On August 24, 1984, at approximately 9:30 P.M., Detective Anderson entered the licensed premises again. At approximately the same time Investigator Oliva entered in an undercover capacity as back up. Upon entering the premises Detective Anderson met with white male bartender Richard Christian and both engaged in general conversation. After a short period of time Detective Anderson asked Christian if he had any cocaine. Christian stated that be did not have any right now but for Anderson to go ahead and give Christian $35.00, and that he would have it later. Anderson complied with Christian's request and gave Christian $35.00 U.S. currency. At approximately 11:00 P.M., Detective Anderson and Investigator Oliva seated themselves at a table in the dining area of the licensed premises, where they were greeted by Everett Campbell. Shortly thereafter Anderson asked Campbell if he could get Anderson some cocaine. Campbell replied in the affirmative. Thereupon Anderson folded two $20.00 bills, placed them under a napkin, and gave them to Campbell. Detective Anderson and Investigator Oliva then saw Campbell go into the kitchen area several times. About fifteen or twenty minutes later, Campbell approached the table where Anderson and Oliva were seated and placed a folded cocktail napkin in front of Detective Anderson and said, "It's in there." Anderson unfolded the napkin and found that it contained a small clear plastic bag containing a white powdery substance. Anderson removed the plastic bag from the napkin and inspected the plastic bag by holding it up to eye level for a few seconds. Detective Anderson saw other patrons looking at him when he raised the plastic bag to eve level. After inspecting the plastic bag, Anderson put it in his pocket. At approximately midnight of the evening of August 24-25, 1984, Detective Anderson and Investigator Oliva left the restaurant portion of the licensed premises and proceeded to the upstairs portion of the licensed premises, which is another lounge. After a short period of time, Anderson and Oliva were greeted by a waiter identified as Adam Burnett. Anderson and Oliva negotiated with Burnett for the purchase of cocaine. In approximately five minutes Burnett returned to the table where the officers were seated and stated that he could obtain a better quality of cocaine for $40.00 in U.S. currency for one half gram. At this time Investigator Oliva stated that he would take the better quality of cocaine and gave Burnett $40.00 in U.S. currency. A few minutes later Investigator Oliva followed Burnett into the mens' restroom. Once inside the mens' room, Burnett handed Oliva a white cocktail napkin. Oliva took the napkin and unwrapped it. Inside was a small clear plastic bag containing a white powdery substance. Oliva held the plastic bag up to eye level to view its contents and discussed with Burnett the fact that the white powdery substance had a lot of "rocks" in it. Oliva then stated to Burnett that he was not going to do the cocaine in the bathroom because he did not trust anyone. Burnett's reply was, "It's okay. Everyone does it in here anyway." Oliva and Burnett then left the restroom. A few minutes later that same evening, an unknown white male employee who had been previously working at a bar located in the downstairs portion of the premises approached Detective Anderson and Investigator Oliva and stated to Anderson, "Richard wants to see you downstairs". Anderson and Oliva proceeded downstairs to the bar located by the kitchen entrance. There Detective Anderson met with bartender Richard Christian, who told Anderson to reach into his shirt pocket. Anderson reached in Christian's shirt pocket and pulled out a folded napkin, and a small clear plastic bag which contained a white powdery substance. When Detective Anderson started to open the cocktail napkin, Christian put his hands out to close Anderson's hands in an effort to keep other people from seeing the bag. On August 29, 1984, Detective Anderson again entered the licensed premises. At approximately 10:00 P.M., Detective Anderson was introduced to a white male waiter identified as Tony Brown. Anderson and Brown engaged in general conversation and after a short period of time Anderson asked Brown if he could get a half gram of cocaine. Brown stated that be should be able to obtain one and that he would check around and get back to Detective Anderson. At approximately 11:00 P.M., Brown approached Detective Anderson and stated that he had checked around, but was unable to obtain any cocaine. On the same date, at approximately 11:30 P.M., Detective Anderson met with waiter Adam Burnett and engaged in general conversation and after a short period of time Anderson asked Burnett if Burnett could get him a half gram of cocaine. Burnett replied by stating, "Wait 'til Gus gets here." Burnett further stated that the price would be $35.00 for one half gram. At approximately 12:10 A.M., on August 30, 1984, Anderson handed Burnett two $20.00 bills. About twenty minutes later, Burnett handed Anderson a folded napkin. Anderson unfolded the napkin and found a clear plastic bag containing a white powdery substance. Anderson then placed the clear plastic bag in his left front pocket. On the evening of August 30, 1984, Detective Anderson entered the licensed premises again. Investigator Oliva and Detective Vadnal entered the premises at about the same time in an undercover capacity as back up. Detective Anderson met with a white male patron previously identified as Dion Burl. Anderson asked Burl if he could get Anderson a half gram of cocaine. Burl replied in the affirmative. Detective Anderson then handed Burl two folded $20.00 bills, which were wrapped in a cocktail napkin. Burl took the money and left. At approximately 11:50 P.M., Burl returned to the upstairs portion of the premises and sat at a table with Detective Anderson. At this time Burl handed Anderson a folded cocktail napkin and inside the folded napkin was a small clear plastic bag containing a white powdery substance. On that same evening, August 30, 1984, Detective Anderson met with a white male waiter identified as Tony Brown who was working at the upstairs portion of the licensed premises. Anderson and Brown engaged in a conversation while standing approximately three feet from Investigator Oliva. Anderson asked Brown if Brown could obtain a half gram of cocaine. Brown replied by stating, "It will be about twenty minutes." Detective Anderson gave two $20.00 bills to Brown and told Brown that he would be in the downstairs portion of the licensed premises. At approximately 12:10 A.M, on August 31, 1984, Detective Anderson, while standing at the downstairs portion of the licensed premises was approached by Brown, who handed Anderson a folded white cocktail napkin which contained a clear plastic bag containing a white powdery substance. Anderson inspected the plastic bag and then placed the napkin and its contents in his right rear pants pocket. On or about August 31, 1984, at approximately 11:30 P.M., Detective Anderson again entered the licensed premises. At about the same time Detective Vadnal and Investigator Oliva entered the licensed premises in an undercover capacity as backup. Shortly after midnight (in the early morning minutes of September 1, 1984) Detective Anderson met with white male waiter Adam Burnett and engaged in a general conversation. Detective Anderson asked Burnett if Burnett could get Anderson a half gram of cocaine. Burnett replied in the affirmative. Thereupon Detective Anderson gave Burnett $40.00 in U.S. currency by laying two $20.00 bills on a cocktail tray Burnett was carrying. Burnett walked away from Detective Anderson to an unknown portion of the licensed premises. A few minutes later Burnett returned to where Detective Anderson was standing and handed Anderson a magazine titled "David" and said, "It's in the magazine." Detective Anderson, who was standing near the dance floor of the licensed premises, took the magazine and flipped through its pages, at which time a clear plastic bag containing a white powdery substance fell to the floor. Several patrons standing in the vicinity of Anderson saw the clear plastic bag fall to the floor and laughed at Anderson's clumsiness. Detective Anderson then picked up the clear plastic bag and held it up to eye level to inspect it. He then placed it in his pocket. On the evening of September 5, 1984, Detective Anderson again entered the licensed premises. Shortly thereafter Detective Vadnal and Investigator Oliva entered the licensed premises in an undercover capacity as back up. Detective Anderson met with a white male patron previously identified as Dion Burl and asked Burl if he could purchase a half gram of cocaine. After some conversation, Anderson gave two $20.00 bills to Burl. Detective Anderson then told Burl that he would be sitting on a speaker near the west end of the dance floor and that Burl could deliver the cocaine to him there. At approximately 10:45 P.M., Burl approached Detective Anderson, who was seated on a speaker by the dance floor, and sat next to Anderson. Burl then handed a folded cocktail napkin to Detective Anderson. Inside the cocktail napkin was a small clear plastic bag containing a white powdery substance. Detective Anderson examined the plastic bag and then placed it in his pocket. After concluding the cocaine purchase of September 5, 1984, at the licensed premises, Detective Anderson remained on the licensed premises and during the early morning hours of September 6, 1984, he met with a white male waiter previously identified as Adam Burnett. Detective Anderson asked Burnett if he could get Anderson a half gram of cocaine. Burnett stated that "Gus," referring to the supplier, was not yet at the bar, but that he should be able to obtain some later. A few minutes later, Burnett approached Anderson and stated that Gus was present and Anderson handed Burnett two folded $20.00 bills in U.S. currency. Anderson then stated to Burnett that he would be in the downstairs portion of the premises. A short while later Burnett approached Anderson and handed Anderson what appeared to be a mixed drink with a napkin wrapped around the glass. As he handed the glass to Anderson, Burnett said, "It's just water, but look in the napkin." Anderson set the drink down and unfolded the napkin to expose a small clear plastic bag containing a white powdery substance. Detective Anderson placed the plastic bag in his pocket. At approximately 12:30 A.M. that same evening (prior to purchasing the cocaine from Burnett), Detective Anderson met with a white male waiter previously identified as Everett Campbell and engaged in a general conversation with Campbell. Shortly thereafter Detective Anderson asked Campbell if he could get Anderson a half gram of cocaine. Anderson gave Campbell two folded $20.00 bills in U.S. currency. Approximately two minutes later Campbell returned from an unknown location in the restaurant area of the licensed premises and handed Anderson a small clear plastic bag containing a white powdery substance. Anderson took the plastic bag and held it up to inspect it. The bartender at bar number two could have seen Anderson inspecting the plastic bag. Anderson then placed the plastic bag in his pocket. On the evening of September 10, 1984, Detectives Anderson and Vadnal and Investigator Oliva returned to the licensed premises in an undercover capacity. Anderson engaged in a brief conversation with a white male waiter previously identified as Everett Campbell, who was not working on this date. Anderson asked Campbell if he could get Anderson a half gram of cocaine. Campbell replied in the affirmative. Detective Anderson then handed Campbell a $50.00 bill, which Campbell took. Campbell took the $50.00 bill to a bartender, received change for it, and gave Anderson $10.00. Campbell then went out the front door. At approximately 1:00 A.M. on September 11, 1984, Campbell reentered the licensed premises and met with Detective Anderson who was standing next to Investigator Oliva. At this time Campbell handed Anderson a clear plastic bag containing a white powdery substance. This transaction was observed by an on-duty white male bartender identified only as "Don" and by a white male patron who was standing on the opposite side of Anderson. Detective Anderson took the clear plastic bag and placed it on the bar counter where it remained for two or three minutes in plain view of the bartender. Then Anderson took the plastic bag and attempted to place it in his pants pocket at which time the small plastic bag containing the white powdery substance fell to the floor where Detective Vadnal, Investigator Oliva, and the white male patron previously mentioned observed the same. Detective Anderson retrieved the clear plastic bag from the floor and placed it in his pants pocket. At all times material to this case, the following were employees on the licensed premises. Malcolm Perkins, Richard Christian, Everett Campbell, Adam Burnett, Tony Brown and a bartender identified only as "Don." Each and every one of the clear plastic bags containing a white powdery substance which were sold to Detective Anderson and to Investigator Oliva on the licensed premises during August and September of 1984, were properly examined by a forensic chemist. The contents of each and every one of those clear plastic bags was found to contain cocaine. In brief summary of the foregoing, during the 5-week period from August 7, 1984, through September 11, 1984, the following events occurred on the licensed premises: 8/07/84 Employee Malcolm Perkins told Detective Anderson he could obtain MDA. 8/07/84 Assistant Manager Scott Kiehl and employee "Paul/Miss Kitty" discussed drugs with Detective Anderson without alarm or concern. 8/10/84 Employee Richard Christian sold cocaine to Detective Anderson. 8/17/84 Employee Malcolm Perkins told Detective Anderson that employee Everett Campbell could obtain cocaine for Anderson. 8/17/84 Employee Everett Campbell agreed to sell cocaine to Detective Anderson. 8/19/84 Employee Everett Campbell sold cocaine to Detective Anderson. 8/21/84 Patron Dion Burl sold cocaine to Detective Anderson. 8/23/84 Employee Everett Campbell sold cocaine to Detective Anderson. 8/24/84 Employee Everett Campbell sold cocaine to Detective Anderson. 8/25/84 Employee Richard Christian sold cocaine to Detective Anderson. 8/25/84 Employee Adam Burnett sold cocaine to Investigator Oliva. 8/29/84 Employee Tony Brown offered to sell cocaine to Detective Anderson. 8/30/84 Employee Adam Burnett sold cocaine to Detective Anderson. 8/30/84 Patron Dion Burl sold cocaine to Detective Anderson. 8/31/84 Employee Tony Brown sold cocaine to Detective Anderson. 9/01/84 Employee Adam Burnett sold cocaine to Detective Anderson. 9/05/84 Patron Dion Burl sold cocaine to Detective Anderson. 9/06/84 Employee Adam Burnett sold cocaine to Detective Anderson. 9/06/84 Employee Everett Campbell sold cocaine to Detective Anderson. 9/11/84 Employee Everett Campbell sold cocaine to Detective Anderson. All of the events summarized immediately above took place on the licensed premises during business hours when other employees and patrons were also present on the licensed premises. With the one exception which occurred on August 25, 1984, when Richard Christian reached out to close Detective Anderson's hands so that Anderson would not display a plastic bag containing cocaine, the employees at the licensed premises did not express any concern about any of the drug transactions and did not take any action to prevent or discourage them. Richard DeSanto is the sole officer, director, and shareholder of Club 99, Inc., the licensee in this case. Richard DeSanto is a self-employed attorney in good standing with the Florida Bar. He has been a practicing attorney for six years and maintains an active trial practice. DeSanto does not devote very much time to the management of the licensed premises. The day-to-day management is conducted by a manager and an assistant manager, both hired by DeSanto. The manager is Tommy Engelbrecht and the assistant manager is Scotty Kiehl. DeSanto relies on Engelbrecht to relay DeSanto's instructions about the operation of the licensed premises to the other employees and also relies on Engelbrecht to report back to him regarding any problems in the operation of the licensed premises. Engelbrecht does the hiring and firing at the licensed premises and many of the employees on the licensed premises would not even recognize DeSanto. DeSanto visits the licensed premises about twice a month on a deliberately irregular schedule. Some of his visits are as brief as a few minutes; others are as long as several hours. The primary purpose of his visits is to attend to such things as reviewing business records and signing the payroll. DeSanto has established as policies that intoxicated or disorderly patrons should not be permitted to enter the licensed premises and that patrons who become disorderly once they are inside the licensed premises should be ejected. It is also a policy of the club that if the employees become aware of any drug activity on the licensed premises they are supposed to report the incident to the manager or assistant manager, and the manager or assistant manager is supposed to eject whoever is involved in the drug activity. On three or four occasions during the past year or so patrons have been ejected for drug activities on the licensed premises. DeSanto has discussed drug problems and their prevention with Engelbrecht. All new employees are told about the drug policy at the licensed premises when they are first hired. Engelbrecht has also held a few employee meetings at which he reminded employees of the drug policy. The drug policy established by DeSanto appears to include a policy of firing any employee who is caught with drugs on the premises. During the past year three waiters have been fired on the spot for drug use. In the past year the manager has also been told of three or four instances of drug dealing on the licensed premises. 3/ There are no written personnel rules and regulations. Thus, all of DeSanto's policies are communicated orally to Engelbrecht and are then communicated orally by Engelbrecht to the employees. The entire management of the licensed premises, including management practices concerning hiring of personnel, appear to be very informal. Further, the personnel policies regarding drug activities on the licensed premises are either ineffectively communicated or ineffectively enforced. For example, none of the drug transactions engaged in by Detective Anderson and Investigator Oliva were reported to the manager or assistant manager, and no efforts were made to eject Anderson or Oliva for engaging in drug transactions or attempting to engage in drug transactions, even though some of their transactions were observed by employees who were not involved in the transactions. Further, at least one employee (Richard Christian) knew that a patron named Gus was regularly dealing in cocaine on the licensed premises, but no action was taken to eject Gus. 4/ Yet another example of the informality of the licensee's personnel practices is that even though Englebrecht had recently hired a bartender named "Don" and had supposedly carefully checked with Don's references, Englebrecht could not remember Don's last name. When alcoholic beverage licenses were renewed in March of 1983, the DABT sent information to all licensees advising them that the DABT was willing to provide them with suggestions for controlling drug activity on the licensed premises. DeSanto did not take advantage of this opportunity to obtain suggestions from DABT because he did not think he had a drug problem on the licensed premises. In making the foregoing findings of fact I have given careful consideration to the proposed findings of fact contained in the parties' post- hearing submissions to the Hearing Officer. To the extent that findings of fact proposed by either party are not incorporated in the foregoing findings of fact, the proposed findings have been specifically rejected because they were not supported by competent substantial evidence, because they were contrary to the greater weight of the evidence, because they involve incidental details which were not essential to the resolution of this case, or because they were irrelevant or immaterial.
Recommendation For all of the foregoing reasons it is recommended that the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking alcoholic beverage license number 16-1053-SRX, Series 4-COP, issued to Club 99, Inc., trading as Shangri-La. DONE and ORDERED this 8th day of October, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1984.
The Issue The issue for consideration in this hearing is whether Respondent's beverage license, Series 14BC, No. 39-03729, should be disciplined because of the matters outlined in the Notice to Show Cause filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Division was the state agency responsible for the licensing of establishments for the dispensing and sale of alcoholic beverages and enforcement of the beverage laws of the State of Florida. McKown's, Inc., a corporation whose sole stockholders are Duncan and Gloria McKown, holds 14ABC license number 39-03729, located at The Cabin, an establishment situated at 8205 North Dale Mabry Highway in Tampa. This license is a license to operate a bottle club on the premises, and allows patrons to bring their own bottles into the club to drink from. Patrons may either bring their bottle each time they come, or they may leave it at the club to be used each time they visit. Patrons must drink from their own bottle or as the guest of another bottle holder, but cannot buy alcoholic drinks from the licensed establishment. The establishment may sell only ice, setups and food - no alcohol. Mr. McKown is Secretary-Treasurer of McKown's, Inc., the licensee in issue here. He has been in the restaurant and service business since 1937. He opened a large restaurant and lounge in Dunedin, Florida in the early 1960's, and opened The Cabin approximately fifteen years ago with a county bottle club license. When state licensure became required, approximately three years ago, he secured one of those as well. Mr. McKown claims he was open every day from 2 to 7 AM. His clientele was mostly made up of people in the service industry - people who work at night and get off early in the morning. These are people such as waitresses, cooks, restaurant and bar managers. Many of his patrons work at or manage high quality restaurants, and the interior of The Cabin is decorated with T-shirts from many of them. He believes that as a general rule, his clientele is of good quality and is law abiding. The Cabin is made up of one building and a patio. It has one front door, which is manned by a security guard, and there is a sign posted on the inside of the front door which indicates the facility is a private club, non- members of which must pay a service charge. Though it once was private, it is now open to anyone of legal age. If the door is closed, an individual approaching from the outside can not see the sign. Security is designed to keep out minors and to insure that persons admitted have a bottle with them or already inside. The two Messrs. Bailey are the security guards. They wear uniforms similar to those worn by law enforcement people and carry firearms. McKown claims this i s because a firearm was discharged on the premises some time ago and the guards' firearms and uniforms tend to dissuade drunks. Many companies have bottles for their employees. It is Mr. McKown's policy, which he believes is consistent with state law, that two or more people can come into a bottle club and drink from one bottle. It is also a practice of his to allow people to leave their bottles on the premises for future use. Many of his customers are repeat customers who are recognized by security and other employees. If the patron is known to the security guard, he or she might not be checked. Each entrance requires the payment of a $7.00 service fee which authorizes the patron two setup chips. When the patron comes in with a bottle, the cashier puts the patron's name on it using a role of waterproof tape on which is marked the name in color-coded pen, depending on what month it is. Bottles are discarded after three months, whether empty or not. Once a bottle is brought in and given to the bartender, it is kept on the service island behind the bar. At one time, the licensee maintained a membership list. The practice was abandoned when it was decided to seek patrons from the service industry. The inside of the bar is lighted but dark. Music is provided by a jukebox which plays continuously. If patrons do not put money in, the machine comes on automatically after twelve minutes, and the volume is loud, though Akins did not think so. There are speakers both at the jukebox and in the ceiling. The men's room has one stall and two urinals. Mr. McKown removed the door to the stall to keep illegal activity, such as drug sales or homosexual activity, from going on inside. By removing the door, he can readily check to determine that nothing improper is going on inside the stall. The ladies' room has two stalls with cafe doors. He put that type of door in at the same time he removed the men's stall door for the same reason. Both restrooms are to be checked periodically by the manager, by Mr. McKown or the cashiers, as available. The Cabin is busier on weekends than during the week and the staff is adjusted accordingly. On the weekends, there are two cashiers as opposed to one during the week. By the same token, on the weekend, three bartenders are on duty as opposed to two during the week. A maintenance man is also employed. At all times pertinent to the issues herein, Special Agent Jennifer Akins was a special agent with the Division and had been since December, 1989. She was a certified law enforcement officer and, prior to May, 1994, had been involved in between fifteen and twenty undercover operations, of which at least ten involved narcotics. She was trained in the identification of narcotics and street level narcotics activities by the Drug Enforcement Agency, and has taken other professional courses in the subject. Prior to the institution of this undercover operation, Akins had been in The Cabin four or five times. S/A Murray is also an experienced agent with twenty-five to thirty undercover investigations to her credit. At least half involved narcotics. She, too, had been at The Cabin prior to the onset of this investigation. On January 12, 1994 Akins went to The Cabin where she was stopped outside the door by the security guard, Mr. Bailey. He advised her it was a bottle club and inquired if she had a bottle. When she said she had, he also told her that her name would be placed on it and it would be kept behind the bar and drunk from when she was there. She gave over the bottle of rum she had brought. She was not required to fill out an application form nor to pay a membership fee. Akins went back to The Cabin with S/A Murray at approximately 5:15 AM on May 10, 1994. They were met at the door by Mr. Bailey and paid a $7.00 per person cover charge to Mr. Sparks, an employee, who was stationed inside the door. This cover charge entitled them to two drink chips which they would exchange for setups. Additional chips could be bought at $3.50 each. Once inside, they gave their bottle of rum to Mr. Sparks who, after placing a piece of tape with Murray's name on it on the bottle, gave it to the bartender. Akins asked where the bottle of rum was she had brought in on January 12, 1994, and was told it was gone. Bottles are disposed of after ninety days if not consumed first. Consequently, the only bottle the agents had on May 10, 1994 was the bottle they brought that visit. That night, Akins and Murray sat at the bar and were served one or two drinks each from the bottle they had brought in. Later on that evening, Akins was served a drink made with vodka by Mr. Strauss, a bartender. Akins saw Strauss make the drink and knows he did not use the bottle they brought in. Besides, when she tasted it, she recognized it was vodka, not rum. She paid for the drink with one of the chips she got upon entering. She drank only a small part of the drink in order to comply with Division policy that undercover agents will not drink enough to become impaired. Akins and Murray left The Cabin about 6:50 AM without taking the rum bottle they had brought, but while there, Akins observed a white male she recognized as Victor near the women's restroom talking with a white couple. Victor received money from the male in the couple, counted it, and gave the man something in return. This procedure is consistent with what she had observed in other drug transactions. Later on that evening, she again saw Victor near the men's restroom. Victor approached a black male who, after entering and exiting the restroom, handed Victor a small package and received something in return. While this was going on, both were furtively looking around. Akins didn't see what was transferred. Even later, Akins saw Victor exchange something with a black male near the front door. Again, she could not see what it was. S/A Murray also observed this activity and it appeared to be drug activity to her as well. Akins and Murray went back to The Cabin about 5:00 AM on May 11, 1994. As they approached the door they were met by two employees who let them in, and they paid a white female cashier upon entry. On this occasion they did not have a bottle with them. When asked, they said they had a bottle there from the previous visit and were allowed in. Akins ordered two or three drinks from Mr. Sparks, who was behind the bar that evening. The first drink she had was rum, but she does not know from which bottle it was poured. She later ordered a vodka drink which Sparks poured without asking if she had a vodka bottle there. She paid for the vodka with a chip. Later that evening, Mr. Leal, also an employee of The Cabin, offered her a drink. He had called out that the police were outside and that everyone had to stay inside. He sweetened the call by saying he would buy a drink for everyone. At this time, Akins asked for a Zambuca, which they did not have, and they gave her Amaretto instead. Though she saw Mr. Sparks make the drink, she could not tell if there was a name on the bottle or not. Leal offered Murray a drink as well. All this time, Mr. McKown, whom she knew, was present in the facility, going in and out from the back office talking to people. He had done this the previous night as well. Akins left the premises at 7:00 AM and returned again at 5:00 AM the following day, May 12, 1994, accompanied by S/A Murray. They did not bring a bottle this time because they had not taken their bottle with them the previous night. They went through the usual routine of passing the guard, who asked what bottle they would be drinking from. When they said they had one inside, the guard went to check and thereafter allowed them. After paying the cover charge, they were admitted. Inside, Akins saw two black males and a white male exchanging something outside the men's restroom. They were looking around and speaking quietly, and she did not see what was exchanged. That evening, she spoke with the Bartender, Lee, and with Mr. McKown. She also spoke with a patron, Mr. LaRuso, who approached her and commented that she was either a cop or seeking cocaine. In response, she said she wasn't a cop. The two agents both ordered rum from the bartender who poured the drinks from a bottle with their name on it. The rum ran out while the drinks were being poured, so the bartender finished pouring from another bottle which was not theirs. Mr. McKown was in and out of the back office all during this period and would stop and talk with patrons. He appeared quite normal and was not drinking at the time. They returned on May 17, 1994 at 5:20 AM. Mr. Bailey was the security guard who admitted them. On this occasion they had a bottle of rum with them and paid the cover charge. Their bottle was marked by the bartender and Akins ordered a drink from him which was made from their bottle. Later on she also ordered and was served a vodka drink by the bartender who did not inquire from whose bottle he should pour it. S/A Murray was also served a vodka. Akins paid for the vodka drink with a chip even though neither she nor Murray had ever brought a bottle of vodka to the establishment. That evening, she spoke with Mr. Sparks, Mr. Mille and Mr. McKown. Sparks and Mille were both employees. Sparks said he had been divorced because he used too much cocaine. Mille said he had been arrested for cocaine. These discussions took place at the bar or at the cashier stand and were carried on in a normal tone of voice. The agents went back to The Cabin on May 24, 1994 at 4:45 AM with a confidential informant, (CI). They were met at the door by a white male who allowed them to enter. When they did, they paid the cover charge to Mr. Sparks. They brought a bottle of scotch with them even though they had previously brought in at least two bottles of rum. At that point, Akins did not know if the last rum bottle they had brought on May 17, 1994 was still there, so they brought the scotch to be sure they would be admitted. The bottle of scotch was marked and placed behind the bar by Mr. Sparks. Mr. Strauss and a white female were tending bar. Akins approached Strauss who asked if she wanted what she had just brought in or rum instead. When she replied she preferred rum, Strauss went to look for some in the back. When he came back, he said he could find none, but would give her vodka instead. Akins agreed and Strauss made a vodka drink for her. It was, in fact, vodka, and she paid for it. She also had another vodka drink that evening, made for her by Mr. Strauss, who did not use any of the bottles the agents had brought in. Agent Akins, in a conversation with Mr. Sparks that evening, asked him if he had any more cocaine like that which she had purchased on May 17, 1994. This conversation took place near the juke box which was playing, but not loudly. Their conversation was in a normal tone. Strauss walked away after her question and she went up to the cashier's booth and was talking with some people when Sparks returned. He handed her a small package in front of Mr. Bailey and Agent Murray. It consisted of a small cellophane wrapper containing a white powder for which Sparks would not take any money. Akins put the package in her pocket and it was later analyzed at the Florida Department of Law Enforcement, (FDLE), laboratory and determined to be cocaine. After that purchase was made by Akins, the CI purchased a substance from a lady known as Michelle, who Akins described as an employee of The Cabin. Mr. McKown denies this, however, and it is found that she was not an employee. Prior to the purchase, the CI had informed the agents he thought he could make a purchase and Agent Murray searched him before he approached Michelle. Determining he had no cocaine on his person, he was released to make the buy, which he did, on the premises. Michelle gave him a package of a substance, later determined to be cocaine, for which he paid with $30.00 given him previously by Murray. He then delivered the substance to Murray who in turn gave it to Akins for evaluation. It was later tested and determined to be cocaine. That same evening, Akins also saw three white males in a corner of the bar making what she considered a suspicious transaction. They were looking around and acting furtively. There was a big crowd in the bar that evening - at least 35 people. The lighting was good and Akins had no problem seeing. Mr. McKown was also in and out that evening. The two agents returned to the Cabin on June 27, 1994 at about 3:50 AM. When they arrived, they were met at the door by the security guard who asked them who they were, where they worked, and other similar questions. Akins got the impression that he did not want to let them in even though she had indicated that they had a bottle of scotch inside. While this was going on, Mr. Sparks came out and vouched for them and they were admitted. After paying the cover charge, Akins ordered a scotch. The drink was poured from her bottle by the bartender, Ms. Hart, but she noticed at the time that the bottle was almost empty even though she and Agent Murray had had few drinks from it. Akins paid for the drink with one of her chips. Because Akins did not drink the scotch, she was offered another drink by Ms. Hart and asked for a rum drink. The bottles of rum which she and Murray had brought in on May 10 and 17, 1994, had previously been used up, and she noted that there was no ownership label on the bottle from which her drink, and that for Murray, were poured. In any event, they paid for the drinks and when they tasted them, determined they were made from rum. That same morning, Akins saw a black male enter the bar without paying the cover charge. He bypassed the cashier and went toward the restrooms where he was approached by Mr. Strauss, to whom he passed something and got something in return. At this point, Akins was approximately 12 feet away, and though she could not see what was actually passed, she saw Strauss put what he had received into his pocket. Strauss then went back to the bar and the black male left. Shortly thereafter, Mr. McKown entered the bar. He seemed normal and walked around, talking with his customers. Akins left soon thereafter without taking her bottle of scotch. On July 27, 1994, Akins and Murray arrived at The Cabin at approximately 3:30 AM and were admitted by Mr. Bailey. This time they brought a bottle of rum. The scotch, which they had brought previously, was gone even though neither agent had had more than one or two drinks out of it. At this time, a female bartender asked her what she wanted and Akins ordered a peppermint schnapps. Without any questions regarding whose bottle it should be poured from, the bartender poured the requested drink from a bottle which bore a name that Akins could not see. It was not hers, however. She tasted the drink and found it was, in fact, peppermint schnapps. That same evening, Akins and Murray were approached at the bar by a white female, Ronnie, who asked them to split an 8-ball of cocaine. An 8-ball is one eighth of an ounce. No effort was made by Ronnie to hide her solicitation. In response, Akins said she didn't have any cocaine with her, but if Ronnie could find some, she, Akins, would go in with her. With that, Ronnie spoke with several customers but did not come back that evening. Mr. McKown was present but was not a participant in the conversation. When Akins left the bar that morning, she did not take the bottle of rum she brought in with her. The agents went back to The Cabin on August 9, 1994, at approximately 3:05 AM, and met three men, Beltran, Ramos and Encena, in the parking lot. As the five approached the door, they were met by Bailey and Sparks and were admitted, even though they did not have any alcohol with them. Once inside, Akins ordered from Ms. Hart a tequila drink which was poured from a bottle with no name on it. She had first asked for rum, but all that was available was spiced rum. When she tasted the drink, she found that it was tequila. Later on, she ordered a Kamikaze, which contained vodka, from Ms. Hart. Hart did not ask her whose bottle she should pour it from but poured from a bottle with no name tag on it. The drink was vodka. She paid for both drinks she ordered that evening with chips purchased at the door. During the morning, Akins spoke with Mr. Beltran, one of the men she had come in with, who was a patron at the bar. While they were still outside, however, before entering, Beltran had asked the two agents if they used cocaine. When they replied that they did, he said he would have to go inside to get it. When Akins later spoke with him at the bar, he told her to get her friend and that he had obtained the cocaine. Beltran and Ramos had the two agents follow them outside and to Beltran's car where the substance, later tested and identified as cocaine, was produced by Beltran and Ramos and given to the two agents. After Ramos ingested some of the substance, they went back inside and Akins put the substance she had received into her purse for later testing. After the parties went back inside to the bar, the men were ejected because they annoyed Ms. Hart. Mr. McKown was there at the time. After the men were ejected, Akins and Murray had a discussion with a patron named Guinta who said Akins had white stuff under her nose. Akins wiped her nose and denied the allegation. Guinta then asked Murray and Akins if they had any cocaine. Akins said she did not but would see if she could get some. She spoke with Mr. Sparks who said he had none available. All this was in a regular tone of voice, and all during this conversation, Mr. McKown was within three to five feet of them. Later on, there was a quite loud conversation between Guinta and another individual about cocaine. Afterwards, the parties went outside to Murray's car where Guinta gave them a substance later tested and identified as cocaine. Both agents went back to The Cabin on August 16, 1994 at approximately 3:30 AM. On this visit they had no alcohol with them. Mr. Bailey was on duty as the security guard and Strauss and Hart were the bartenders. Akins ordered a vodka Kamikaze from Hart. Later on, Hart asked her if she wanted another drink. When Akins agreed, Hart offered to make it with tequila instead of vodka. She made the drink from a bottle not marked with an owner's name, and when Akins tasted the drink, she found it was tequila. Murray also had two rum drinks which were poured from a bottle with no name on it. Akins spoke with Charles Bailey that evening at the bar. She asked him for some cocaine, and he said he could give her a "bump", (a small amount of cocaine), but could not sell her any. Akins and Murray went back to The Cabin on August 26, 1994. On that occasion, again, they had no alcohol with them. The bottle of scotch and the rum they had brought on two separate prior occasions was gone. They met three other patrons outside. Mr. Bailey, the security guard, let them in and after paying the cover charge, Akins spoke with Mr. Mille and thanked him for the cocaine she had received previously from Mr. Guinta. At first Mille seemed confused, but when she explained, he seemed to understand, but denied he had any more available. Akins had several drinks that evening. The first was made with tequila which she got from Ms. Hart. Neither Akins nor Murray had ever brought tequila to the bar. The tag on the bottle said "Killian's", but Akins did not know anyone by that name or where the bottle came from. Nonetheless, she paid for the drink, tasted it, and determined it was tequila. She also had a drink made with Amaretto that evening which she bought from Mr. Strauss. In this case, also, she was served a drink made with a beverage she had not brought in. Murray was served a rum drink from a bottle marked "hooters". She did not work for or know anybody from Hooters. Apparently, that same evening, Akins was looking quite tired as she sat at the bar. She was approached by Julio Pabone who said he could get her something that would wake her up. He then spoke with Mr. Leal, after which he came back to Akins and asked for money. She gave him $20.00 to add to what he already had, and he returned to Leal, gave him the money, and received a baggy with white powder in it in return. Returning to Akins, Pabone gave the baggy to her. The substance in the bag was later tested and identified as cocaine. Leal is an employee of the licensee. That same evening, Murray saw two women in the restroom use what appeared to her to be cocaine near the sink. On September 9, 1994, the agents again went to The Cabin and were admitted by Charles Bailey. After paying the cover charge, and while sitting at the bar, Akins saw a patron identified as Manuel pull out a wrapper containing a white substance and give it to another male who gave him money in return for it. At the time of this transaction, Mr. McKown was standing approximately five feet away. Later on, a male identified as Julio approached Akins and said he needed $30.00 for cocaine. She gave him the money and he went into the men's room followed by Leal and another individual. When Julio came out, he gave Akins a package with white powder in it which was subsequently tested and identified as cocaine. Mr. McKown was present in the bar at the time, but Akins cannot say whether he observed this transaction. On the evening of September 30, 1994, Sergeant Woodrow A. Ray, a longtime employee of the Division, was the supervisor of the raid conducted at The Cabin. When he arrived, he entered the establishment to insure that all other agents were in place. Sometime thereafter, Agent Miller, also a long time employee of the Division, arrived to serve an Emergency Order of Suspension on the licensee. Miller contacted Mr. McKown, read the Search Warrant and the Emergency Order of Suspension to him, and advised him of his rights against self-incrimination. While this was being done, Mr. McKown expressed surprise regarding the narcotics allegations but admitted he may have sold some alcohol. He stated this four times in different ways. He stated, "We may have sold some alcohol but no drugs"; "Maybe my people sold liquor, but I don't know about drugs"; "We sell a few drinks to help the guys, but no drugs"; and "If drugs were sold, I never knew it - maybe drinks but no drugs." Agent Miller helped with the ensuing search, in the course of which he went into the office to seize the license. He also searched the adjoining storage area in which he discovered a black bag. He asked McKown if the bag was his, which McKown denied. McKown indicated that only himself, Mr. Leal, and Charles Bailey had access to this room. Miller then went to get Bailey, who had been detained on the patio, advised him of his rights, and asked if the bag was his. Bailey acknowledged it was. Miller took Bailey back inside where he placed him in a chair under guard. Miller had Bailey identify the bag and when he did, Miller asked if there was anything in it he should know about. Bailey thereafter gave his permission to search the bag. Before the bag was opened, however, Miller had it taken outside to be sniffed by the narcotics detection dog on the scene who alerted on it. Miller then opened the bag, and inside, in an ammunition box, found drug paraphernalia and approximately 98.6 grams of a white powder which was subsequently tested and identified as cocaine. On or about February 4, 1993, Gene Leal, who was the manager of The Cabin, cashed a check there for Julio Pabone in the amount of $120.00 which was subsequently dishonored. When contacted about this, Pabone agreed to pay off the check in periodic cash payments, and in fact, did so, making a payment of $20.00 on August 26, 1994. The payment which Leal received on that date was not for cocaine but in repayment of a portion of the dishonored check. Company policy regarding illegal drugs is simple. If seen going on, the activity is to be stopped and the individual expelled from the facility forever. Mr. McKown recalls this as having happened at least six times in the year prior to closing. He claims he has no use for drugs and never has. He has a "no tolerance" policy for any drug activity he knew about, and his employees knew that. This policy is not in writing, however. Mr. McKown has not had any of his employees trained in drug identification, and even though he is aware of the state's responsible vendor program, neither he nor any of his employees have participated in it. Mr. Leal has worked for The Cabin for approximately eight years, as has Mr. Sparks. Both were instructed regarding the company's drug policy. Most of The Cabin employees have been on staff for between eight and fifteen years. Mr. McKown claims he would have periodic meetings with employees to inform them of his policy and to solicit reports of illegal activity. In addition to these instructions, employees are furnished with trespass warning slips which are to be issued when patrons are expelled for drug use. Two of these were introduced into evidence. Byron L. Bailey, one of the security guards, confirms this. Though usually stationed at the front door, he would make between four and five checks per night of the restrooms to be sure they were not being used for drug activity or for drinking. He did not, however, look to see what was going on in the lounge. Kathryn Katz, also formerly an employee of The Cabin, was instructed in the company's policy when hired. Not only was the use or transfer of drugs prohibited but so was the sale of alcohol. She was told that only those individuals who had a bottle with them or already inside could be admitted. It is possible that some people lied about this, but she had to take their word. If they said they had a bottle inside, she would admit them. She also checked the ladies' restroom periodically. The Cabin welcomes law enforcement officers as patrons. When deputies from the sheriff's office periodically come out and park in the lot of the neighboring Steak and Ale, they are always welcome. Approximately a year prior to the hearing, Mr. McKown was reportedly told that a van was in his lot from which drugs were being sold. He claims he called 911 and an arrest was made. However, over the fifteen years he's operated The Cabin, Mr. McKown claims there has never been an arrest made inside the club. Concerning the "admissions" he made to Agent Miller at the time of the service of the warrant and the Order of Suspension, Mr. McKown was reading a copy of the affidavit as Miller was reading it to him. As he read it, he was shocked to discover that his own people, whom he felt were family, were doing such things. He admits that perhaps his employees made a mistake in selling drinks. He does not condone it and he definitely does not condone any sales of illegal drugs. His admissions were not meant to specific dates or incidents but were rhetorical more than actual. He admitted his employees had the opportunity to sell unlawful drinks. He does not believe, in his heart, however, that they made any drug sales. He is wrong. No bottles of alcohol were seized by law enforcement officials at the time of the raid. Approximately two weeks after the closing, Mr. McKown conducted an inventory of the bottles on the premises. At that time, there were approximately one hundred fifty bottles, all of which, he insists, had patrons' names on them. Of that number, thirty to forty were establishment bottles. The balance were owned by individuals. Several prominent restaurant owners and managers who patronize The Cabin have known Mr. McKown for several years. None has ever observed any illegal drug activity inside the establishment and had they done so, would have left and not returned. Mr. Caballero, a former Tampa City Councilman, has patronized The Cabin since it was opened. Because of his public position, he was very sensitive to any possibility of illegal activity in his presence, and though he would be at the club once or twice a month, never saw any such conduct. All of these individuals claim to be friends of Mr. McKown. Dr. Poritz and Mr. Queen, a chiropractor and private investigator, respectively, have also patronized The Cabin periodically for several years. Neither has ever seen any illegal activity in there. Mr. Queen, while a member of the Tampa Police Department's Narcotics Division, would patronize the establishment periodically and was always comfortable there. Had he seen any illegal activity on the premises, he would taken appropriate action as a law enforcement officer and would have reported what he saw. A previous Administrative Complaint was filed against the Respondent in 1993 for violation of liquor sales laws. At that time, the Respondent and the Division entered into a Consent Agreement which called for Respondent to pay a civil penalty of $500.00 plus investigative costs of $14.50, and to provide a letter of corrective action. This letter, dated July 31, 1993, and signed by Mr. McKown and several of his employees, such as Mr. Bailey, Mr. Leal, Mr. Strauss and Ms. Hart, all of whom are referenced in the instant action, indicated the signatories had come up with a good system "to keep people without a bottle from coming in" which should "tighten it up and not break down as it did." From the evidence presented, it appears they were wrong and that their system did not work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's alcoholic beverage license No. 39-3729, Series 14BC, be revoked. RECOMMENDED this 31st day of May, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-5882 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: - 4. Accepted and incorporated herein. Accepted and incorporated herein, except that the evidence indicates the January 12, 1994 visit occurred prior to the commencement of the instant investigation. Accepted and incorporated herein. - 9. Accepted and in substance incorporated herein. 10. & 11. Accepted and in substance incorporated herein. 12. - 14. Accepted and in substance incorporated herein. 15. & 16. Accepted and in substance incorporated herein. 17. - 21. Accepted and in substance incorporated herein. 22. - 24. Accepted and in substance incorporated herein. 25. & 26. Accepted and in substance incorporated herein. 27. - 29. Accepted and in substance incorporated herein. 30. & 31. Accepted and in substance incorporated herein. 32. - 34. Accepted and in substance incorporated herein. - 37. Accepted and in substance incorporated herein. Accepted and incorporated herein. & 40. Accepted and incorporated herein. Accepted but not probative of any material issue. Accepted and incorporated herein. Accepted and incorporated herein. & 45. Accepted and incorporated herein. 46. & 47. Accepted. FOR THE RESPONDENT: None submitted. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 J. Thomas Wright, Esquire Suite A 2506 Tampa Bay Boulevard Tampa, Florida 33607 Linda Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 John J. Harris Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007
Findings Of Fact Respondent is a Florida corporation doing business in Tampa, Florida, and is the bolder of alcoholic beverage license number 39-482, 4-COP. Respondent's licensed premises are located at 2309 North Dale Mabry Highway, Tampa, Hillsborough County, Florida. The license was suspended by Petitioner's Emergency Order of Suspension issued July 22, 1982. On March 25, 1982, Beverage Officer Freese entered Respondent's licensed premises in an undercover capacity after paying a $1 cover charge. Freese proceeded to a circular room located upstairs in the licensed premises. This room had a small bar in the center, a small dance stage in front of the juke box, and bench-type seats located around the perimeter of the room. Shortly after entering the licensed premises, Freese was approached by a female dancer known as Diane. She sat down next to Freese without invitation and asked Freese if she could call the waitress over. Upon inquiry by Freese, Diane informed him that the reason for calling the waitress was because Freese had a drink and she did not. When Freese asked if that meant she wanted a drink, her reply was yes, and she thereafter ordered a drink. The drink was later served and Freese was charged $4 (Count 1). At approximately 10:45 p.m. on March 25, 1982, a female dancer known as Caryl seated herself next to Freese without invitation and inquired, "Who is going to buy me a drink?" After Freese agreed to buy her a drink, she stated that she was not supposed to solicit drinks because the premises had lost its license for such action in the past. Caryl ordered her drink from a waitress who returned with the drink, placed it in front of her, and charged Freese $4 (Count 2). At approximately 11:55 p.m. on March 25, 1982, a female dancer known as Mercedes was seated next to Freese and asked him if she could call the waitress over. When Freese asked why, the dancer replied that she needed a certain brand of mixed drink, and called the waitress to the table. She then ordered a drink for herself, which the waitress brought and placed in front of Mercedes. The waitress charged Freese $4 for the drink (Count 3). On March 26, 1982, Freese and a Confidential Informant entered the licensed premises in an undercover capacity. After paying the $1 cover charge they proceeded to the same circular room as on the previous occasion. At approximately 9:45 p.m. Mercedes again seated herself next to Freese and remarked that both she and Freese were dry and that she would call the waitress over. When asked by Freese if that meant she wanted him to buy her a drink, she summoned a waitress named Darlene to the table and ordered a drink for herself. Upon returning to the table, the waitress placed Mercedes' drink in front of her and charged Freese for the drink. The total charge for the two drinks was $6, and Mercedes later informed Freese that all of the dancers got doubles when ordering drinks (Count 4). On March 31, 1982, Officer Freese and the Confidential Informant again entered the licensed premises in an undercover capacity. After paying the cover charge of $1 each, Officer Freese again proceeded to the upstairs circular room of the lounge. At approximately 8:25 p.m., the dancer Mercedes again joined Officer Freese at the table. After paying Mercedes $5 for dancing, Mercedes asked Freese if she could call the waitress over. Freese replied, "It's up to you," and Mercedes called a waitress known as Marty to the table and ordered a mixed drink for herself. Upon delivering the drink to Mercedes, the waitress informed Freese that the cost of the drink was $4 (Count 5). At approximately 9:00 p.m. on March 31, 1982, Mercedes again asked Freese, "May I call the waitress over?" Freese replied, "It's your turn to buy." Mercedes replied that it was not her turn and ordered a mixed drink for herself from the waitress. The waitress charged Freese $6 for this drink (Count 6). At approximately 9:40 p.m. on March 31, 1982, Mercedes again asked Freese if she could call the waitress over. After Freese told her that it was her turn to buy this time, Mercedes replied that it was his turn to buy. She again called the waitress over and ordered a drink for which Freese was charged $4 (Count 7) At approximately 11:00 p.m. on March 31, 1982, Freese was in the presence of two dancers, Mercedes and another dancer known as Cheryl. At this time, Mercedes again asked Freese if she could call the waitress over. After Freese asked Mercedes if she was buying this time, she replied, "I do the dancing." In response to this remark, Freese stated, "I guess that means that I pay for all the drinks," to which Mercedes indicated yes. Mercedes ordered a drink from the waitress Marty, who returned with the drink, placed it in front of Mercedes and charged Freese for the drink (Count 8). On April 7, 1982, Officer Freese entered the licensed premises with a Confidential Informant in an undercover capacity. Upon entering the licensed premises, they proceeded to the circular bar upstairs and seated themselves at a small table. At approximately 8:45 p.m., the dancer Mercedes, while seated at the table with Freese, asked him if she could order another drink. She ordered a drink from a waitress who served her the drink and then charged Freese $4 for it (Count 9). On April 7, 1982, at approximately 9:15 p.m., the dancer known as Caryl was seated at the table with Freese. She turned to him and stated, "Mike, I need a drink." When Freese inquired as to what she had said, Caryl replied, "Will you get me a drink?" (Count 10). On April 8, 1982, Officer Freese and a Confidential Informant again entered the licensed premises and proceeded to the upstairs bar. At approximately 8:40 p.m. the female dancer known as Mercedes was seated at the table with Officer Freese. While tipping her empty glass toward Freese, Mercedes asked if she could call the waitress. She then ordered a drink for herself, which was delivered to her by the waitress who charged Freese for the drink (Count 11). At approximately 9:15 on April 5, 1952, Officer Freese and a Confidential Informant were joined by another female dancer known as Caryl, who proceeded to ask, "Who is going to buy me a drink?" While a waitress known as Darlene was standing in front of Caryl, Caryl asked Freese, "Mike, will you buy me a drink?" She then ordered a mixed drink for herself, which was delivered to her, and the waitress charged Freese for the drink (Count 12). On May 13, 1982, at approximately 11:00 p.m., Beverage Officers Freese and Hodge entered the licensed premises in an undercover capacity and proceeded upstairs to the circular room. Shortly after seating themselves, they were joined by a dancer known as Stephanie. At approximately 9:45 p.m. the officers were approached by a waitress known as Doris. Hodge ordered a beer and upon inquiry by the waitress if there would be anything else, Hodge replied in the negative. However, Stephanie stated to the waitress that she would have a mixed drink. While waiting for the drinks to be delivered, Stephanie informed Hodge that she could not ask for a drink because it would be soliciting and she could be thrown into jail for that. After paying for the drinks, Hodge made a remark as to the cost of the drinks to which Stephanie replied, "That's how the house makes its money, off the drinks, and we make ours off the lap dances. That's what this upstairs is about, drinking and dancing." (Count 13) At approximately 11:00 p.m. on May 13, 1982, Freese was approached by a dancer known as Linda, who asked if she could dance for him. While lap dancing for Freese, Linda asked, "Can I get a drink, too?" Freese asked if she wanted him to buy her a drink and she replied, "Yes, will you buy me a drink?" Linda then called the waitress, ordered a drink which was delivered to her at Freese's table, and he was charged $4 for Linda's drink (Count 14). On May 18, 1982, Beverage Officers O'Steen and Freese entered the licensed premises in an undercover capacity and proceeded to the upstairs lounge. At approximately 8:35 p.m., Freese was approached by a female dancer known as Darlene, who asked to dance for him. After informing Darlene that he did not want a dance, she asked him if he would buy her a drink. Darlene then summoned a waitress over to the table and ordered a mixed drink for herself. The waitress delivered the drink to Darlene and charged Freese for it (Count 15). At approximately 10:25 p.m. on May 18, 1982, Freese was again approached by Darlene and asked, "How about a drink?" When Freese asked Darlene if she was buying, she responded "No, you are." Darlene then summoned the waitress and ordered a drink which was delivered to her at Freese's table. Freese paid for the drink (Count 16). On May 19, 1982, Officers Hodge and Freese entered the licensed premises in an undercover capacity and proceeded to the circular lounge upstairs. At approximately 8:45 p.m., a dancer known as Diane asked Freese, "Can I call the waitress?" to which Freese replied, "Does that mean that you want me to buy you a drink?" After Diane replied affirmatively, she summoned the waitress over and ordered a drink which was later delivered to her at Freese's table. Freese was charged $4 for the drink (Count 17). On May 19, 1982, at approximately 8:55 p.m., the dancer Mercedes approached the officers' table and seated herself between them. Mercedes then asked Hodge if she could call the waitress over. She thereafter ordered a drink which was delivered to her at the officers' table by the waitress Darlene, who charged Hodge $4 for the drink (Count 18). At approximately 9:10 p.m. on May 19, 1982, Diane was still seated at the officers' table and asked Freese if she could call the waitress again. Diane then called the waitress to the table and ordered a mixed drink for which Freese was charged (Count 19). At approximately 9:50 p.m. on May 19, 1982, Diane asked Hodge "Do you want to buy me a drink now, or do you want me to wait until after I dance?" In response to this, Hodge asked Diane if she wanted him to buy her a drink, to which Diane replied, "yes." While Diane was dancing, the waitress brought her drink to the table and charged Hodge $4 for it (Count 20). On July 6, 1982, Officers Freese and Hodge again entered the licensed premises in an undercover capacity and proceeded to the upstairs lounge. At approximately 8:55 p.m., the dancer Stephanie, who was then seated at the officers' table, said to Hodge, "Will you buy me a drink?" She thereafter ordered a drink for which Hodge was charged (Count 21). At approximately 9:15 p.m. on July 6, 1982, Officers Hodge and Freese were seated in the upstairs portion of the lounge. At this time, they were accompanied by the dancers Caryl and Stephanie. During the course of a conversation, Hodge asked Freese if he was buying the next drinks, and Stephanie said, "What about me?" A waitress was present during this conversation and asked Freese if he intended to buy the dancer Caryl a drink also. Both Stephanie and Caryl each ordered mixed drinks which were delivered to the officers' table and were paid for by the officers (Count 22). At approximately 11:00 p.m. on July 6, 1982, the dancer Stephanie was seated with the officers at their table. At this time, she asked Freese, "Are you going to buy me a drink?" Upon Officer Freese replying "Yes," Stephanie ordered a mixed drink from the waitress who brought the drink to Stephanie and charged Officer Freese $4 (Count 23). On July 8, 1982, Officers Freese and Hodge entered the licensed premises in an undercover capacity and proceeded to the upstairs lounge. At approximately 7:25 p.m., they were approached by a woman known as Judy, who asked if she could join them for a drink. She then stated, "Mine only costs $2. They cost $4 for the girls on the night shift." Judy then ordered a drink which was delivered to her at the officers' table and was paid for by Freese (Count 24). At approximately 7:35 p.m. on July 8, 1982, Judy inquired of Hodge if he was ready for another beer and then said to Freese, "Can I get another one?" She then ordered a drink from the waitress known as Cathy, and the drink was paid for by Officer Freese (Count 25). At approximately 9:45 p.m. on July 8, 1982, Officers Freese and Hodge were seated at a table with a dancer known as Dorothy. At this time, Freese was approached by a waitress who asked him if he needed another drink, at which time Freese looked at Dorothy, and she said, "I'm drinking 7 and 7." The waitress delivered the drink to Dorothy, and it was paid for by Freese (Count 26). On July 19, 1982, Officer Hodge was again in the licensed premises in an undercover capacity and was seated in the upper level of the lounge. At approximately 9:15 p.m. the dancer Stephanie, who was sitting with Hodge asked, "Are you going to buy me a drink?" Upon Hodge agreeing to do so, Stephanie called to a waitress known as Darlene to bring her a mixed drink. Hodge paid for this drink (Count 27). On April 1, 1982, Officer Freese and the Confidential Informant were in the circular lounge in the upper portion of the licensed premises. At approximately 9:00 p.m., the dancer Caryl seated herself between the Confidential Informant and Freese. After the Confidential Informant inquired of Caryl if she had a bag of marijuana she had earlier promised them, Caryl stated that she did and would retrieve it. She then proceeded to a small dance stage and retrieved a large bag from which she transferred something into her handbag. Upon returning to the table, Caryl handed the marijuana to the Confidential Informant and was paid $10 by Freese (Count 25). On May 13, 1982, Officers Hodge and Freese entered the licensed premises in an undercover capacity. At approximately 11:10 p.m., the dancer known as Mercedes joined the officers and entered into a conversation with Freese. During the conversation, Mercedes discussed her use of cocaine and how it affected her. Freese inquired if she was in possession of any cocaine, to which she replied, "No, but I can get you some," and informed him that it would cost $45 for a half gram. At approximately 11:45 p.m., Mercedes delivered a small, clear, plastic package to Hodge containing a white powdery substance, later proven to be cocaine. The delivery of the cocaine occurred on the licensed premises while the officers were seated in the upstairs lounge (Count 29) On July 7, 1982, Officers Hodge and Freese were again in the licensed `premises. They engaged the dancer Stephanie in a conversation concerning the availability of drugs. She informed them that she was in possession of a fourth of an ounce of marijuana and would sell each of the officers two marijuana cigarettes for $5. At approximately 12:30 a.m. on this date, she advised Freese that she needed $10, since she was going to roll their marijuana cigarettes. At approximately 12:50 a.m. Stephanie returned to the officers' table and delivered two hand-rolled marijuana cigarettes to Freese and one to Hodge. This transaction took place on the licensed premises in the upstairs portion of the lounge (Counts 30 and 31). On July 8, 1982, Officers Hodge and Freese were again in the licensed premises. At approximately 7:20 p.m., Freese was approached by the dancer Linda, who inquired if he still wanted a gram of cocaine which she had agreed to sell to him on July 7, 1982. At approximately 9:30 p.m., Linda approached Hodge and Freese in the upper portion of the lounge. She handed Freese a small, amber, glass vial containing a half gram of cocaine for which he paid her $50. She also delivered a one dollar bill containing half a gram of cocaine to Hodge for which he paid her $45. After the deliveries were made, Linda informed Freese that she could obtain cocaine for him at any time as long as he gave her a day's notice (Counts 32 and 33). On July 14, 1982, Officer Freese was again in the licensed premises and took delivery of approximately one gram of cocaine from the woman known as Linda. Linda was not working as a dancer at the time, but was downstairs working as a bartender. Prior to the delivery of the cocaine to Freese, for which he paid $90, Linda requested that she be allowed to ingest part of the cocaine and proceeded to the dancers' restroom. Upon returning she gave Officer Freese the gram of cocaine contained in a plastic bag with the seal broken (Count 34). On July 15, 1982, Officers Freese and Hodge returned to the licensed premises accompanied by Special Agent Rick Look from the Florida Department of Law Enforcement. On this occasion, Agent Look took possession of approximately one-eighth of an ounce of cocaine from the bartender Linda. The delivery was made in the parking lot of the licensed premises where Linda delivered the cocaine to Look in return for $275. The arrangements for this transaction had been made the night before inside the licensed premises (Count 35). On July 20, 1982, Officer Hodge was again in the licensed premises in an undercover capacity. At approximately 8:50 p.m., the bartender Linda delivered approximately one gram of cocaine to Officer Hodge in return for $90. On this same date, Linda also delivered approximately one-eighth of an ounce of cocaine to Special Agent Look in return for payment of $280. The deliveries to Look and Hodge both took place in the downstairs portion of the licensed premises in the vicinity of the bar (Counts 36 and 37). The testimony of Respondent's employees established that the dancers in the upper portion of the lounge are not on Respondent's payroll and, in fact, pay Respondent for the privilege of dancing upstairs. Their compensation is obtained through tips they receive from customers for their dances. It was shown that the upstairs dancers are informed as to the rules of the club which prohibit solicitation of drinks and possession of drugs. These dancers have access to the various portions of the lounge, including the dressing room and the restrooms. Their schedules are controlled by the manager, who also hires and fires them. From the testimony of the dancer Stephanie, whose real name is Peggy Knight, it was shown that dancers generally knew that certain other dancers were selling drugs on the premises, that several of the dancers were using drugs and that they regularly ingested such drugs in the women's restroom. The reason for using this room was the double entrance, which could be locked from the inside so as to prevent intrusion. Testimony of the president of the licensee corporation, 2001, Inc., established that Respondent paid a $10,000 fine and served a two weeks' suspension in 1991 as a result of violations of Section 561.131, Florida Statutes. The president occasionally visits the licensed premises, but had not been to the upstairs portion of the lounge for almost two years.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty as charged in Counts 1 through 12, 14 through 25 and 27 through 37 of the Notice to Show Cause/Administrative Complaint and suspending Respondent's alcoholic beverage license for a period of one year. DONE and ENTERED this 10th day of February, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 10th day of February, 1983.
The Issue The issues presented are those set forth in a notice to show cause filed by Petitioner against Respondents in Case No. AY-74-87-0201. In particular, it is alleged that on March 16, 1988, October 21, 1988 and February 24, 1989, that the Respondents or their agents, servants or employees sold alcoholic beverages to minors in violation of Sections 561.29, Florida Statutes and 562.11(1)(a), Florida Statutes.
Findings Of Fact At all times which pertain to this Notice to Show Cause/Administrative Complaint, Respondents were doing business at 238-240 Atlantic Avenue, Daytona Beach, Volusia County, Florida under the business name Speidi Shack and pursuant to a beverage license issued by Petitioner. That license number was and continues to be number 74-01802, Series 2-COP. On March 16, 1988, and again on October 21, 1988, Michael Vanorder, whose birthday is March 27, 1969, purchased a Light beer from employees of the Respondents in the licensed premises. On February 24, 1989, Tina May purchased a Light beer from an employee of the Respondents in the licensed premises. Her date of birth is August 4, 1968. The Light beers that were purchased by those two individuals are alcoholic beverages. In the incident of March 16, 1988, Vanorder entered the licensed premises as an underage operative of the Petitioner. The purpose of underage operatives is to assist the Petitioner in investigations to ascertain whether suspected alcoholic beverage license holders will sell alcoholic beverages to minors. Vanorder was provided money from the Petitioner to purchase the alcoholic beverage if the licensees, their agents or employees would sell. Betty Warner and Tanya Pandarakis, who are Alcoholic Beverage Agents for Petitioner were in the bar and watched as Vanorder was asked by the bartender what Vanorder wanted. Vanorder indicated that he wanted a Light beer. Mark Barker, the bartender, brought a Light beer to Vanorder and accepted payment for that beer. In this purchase, Vanorder was not asked to produce any identification nor was he asked how old he was. Vanorder was under instructions from Petitioner's agents to validly respond to any questions about his age and to provide accurate identification in support of his remarks. The beer that he was given had been opened by the bartender. These events occurred around 8:35 p.m. The beer that was purchased was then given from Vanorder to Warner. Barker was then arrested by Warner and another Alcoholic Beverage Agent, Fred Dunbar, for selling alcoholic beverages to a minor. The arrest occurred when Dunbar entered the licensed premises following the sale and identified himself as an Alcoholic Beverage Agent. Prior to leaving the premises on that occasion, Respondent John M. Macker was told of the arrest and why an investigation had been made in the first place about suspected sales to minors in the licensed premises. Macker came the next day to meet with Dunbar at the invitation of Dunbar. Macker was told that a complaint file would remain open and that underage operatives would continue to be sent into the licensed premises to see if Macker had corrected the problem of selling to underage patrons. Respondent Macker promised that he would have closer supervision and would give training to his employees about proper identification techniques for sales of alcoholic beverages in the licensed premises. An official notice was given to the Respondents, a copy of which may be found as Petitioner's Exhibit No. 3 which was admitted into evidence. That notice is dated March 17, 1988 and is issued from Dunbar and is acknowledged as having been received by Respondent Macker. It identifies the facts of the sale to a minor and the arrest of Mark Barker and warns Respondents that if the violation occurs again, that Respondents could be charged with the violation of March 16, 1988 and any future violations. Throughout this warning phase associated with the sale of March 16, 1988 Respondent Macker was cooperative in his attitude. As forecast, Petitioner sent Vanorder back into the licensed premises on October 21, 1988 to see if Respondents, their agents, servants or employees would sell him alcoholic beverages. Beverage Agent John Szabo, Agent Dunbar, Lt. Powell and Vanorder went to the licensed premises on that evening. Their activities at the licensed premises commenced around 8:55 p.m. At this time, there were around 10-20 patrons in the bar. Szabo went in first and sat down at the bar and ordered a beer. Vanorder came in some 2-3 minutes later and sat down at the bar. A white female bartender who was identified later as Beth Ann Marsden approached Vanorder and asked him what she could get for him. He asked for a Bud Light. The bartender went to the cooler and came back with an open can of Bud Light and said that the cost of that beer would be $1.25. Vanorder paid her and she gave him back change. Vanorder then went outside the licensed premises and gave the beer to Dunbar. During the course of this purchase, Vanorder was not asked his age or asked for any form of identification which would demonstrate his age. As before, Vanorder was prepared to show a valid identification and give his correct age. After Dunbar was given the beer, he came into the licensed premises and he and Szabo confronted the bartender with the fact that she had sold beer to an underaged patron. They asked if the owner was on the premises and she said that he was not. The bartender was then charged with selling to a minor. She was given a Notice of Appearance for October 25, 1988 which constituted of a letter of final warning to the licensee. A third phase of the investigation occurred on February 24, 1989 when Tina May, an underaged operative for the Petitioner assisted in the investigation of sales to minors. Around 10:50 p.m., Officer Szabo, Beverage Officer Sullivan and Tina May went to the licensed premises. Szabo went in the bar first. One customer was in the bar. Szabo asked for a beer and was asked for his identification and showed his license and was served a beer. Before Tina May entered the license premises, she had been instructed to dress in normal attire and to carry her drivers license and to tell the truth about her age and to give the correct identification. Once inside the licensed premises, May sat where she could be seen by Officer Szabo. The other patron left the bar. Around 11:00 p.m., May was approached by Beth Ann Marsden who asked May what she wanted. May replied that she wanted a Bud Light. The bartender asked for identification and a driver's license was produced which showed May to be underage. Marsden was seen to count on her fingers when shown the identification. She opened up a Bud Light beer for May and gave it to her and said that the price of the beer was $1.25. May gave her $5.00 and received change. She then gave the beer to Szabo. Szabo then told the bartender that he was a Beverage Officer. Marsden recognized Szabo from the prior incident with Vanorder on October 21, 1988. Marsden told Szabo that May was 21 years old. Szabo got the driver's license from May and showed it to the bartender who admitted that she had made a mistake and that she didn't look at the month of the birth. She had only looked at the year, 1968. Out of this incident, an Official Notice was prepared, a copy of which may be found as Petitioner's Exhibit No. 4 admitted into evidence. It sets out the violations of March 16, 1988, October 21, 1988 and February 24, 1989 and the intention of the Petitioner to file administrative charges against the Respondents for sales to minors. Since the Respondents were not there, the list was left with a Rosemarie Savini. That notice was served on November 2, 1989. Before the time of the final hearing in this case, the sole ownership of the licensed premises had been left with John M. Macker. Linda F. Williams no longer is involved with the license in question. Respondent Macker's principle business is that of a commercial fisherman. During the pendency of this investigation, he was gone a lot from his licensed premises because of his other work and relied on his employees to act appropriately concerning sales to minors. In the period 1985 until January, 1989, he had not experienced problems with this. He had posted notices around the bar about sales to minors and had instructed his employees about being careful not to sell to minors. He has calendars from beer distributors which assist in ascertaining the age of minors. March 16, 1988 was Barker's first day on the job, as was October 21, 1988 the first day on the job for Beth Ann Marsden. His instructions to his employees was to check identification if people did not look at least in their fifties or older than Respondent. Since these events, Respondent has taken more detailed steps and placed other signs to avoid sales to minors. He doesn't wish these problems to occur again and regrets that they happened on this occasion. On the other hand, he did not ask for help from the Petitioner after the October 21, 1988 incident as was offered. Following the third sale, he has moved into the licensed premises to maintain better control of the circumstance. No other incidents were reported to have occurred beyond that adjustment concerning sales to minors.
Recommendation Having considered the facts, and the conclusions of law reached, it is, RECOMMENDED that a Final Order be entered which fines the Respondents in the amount of $500 for these violations. DONE and ORDERED this 19th day of October, 1989, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2457 Those facts as suggested by the Petitioner are subordinate to facts found in this Recommended Order. COPIES FURNISHED: Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1007 Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 John B. Fretwell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 John M. Macker 238-240 North Atlantic Avenue Daytona Beach, Florida 32018
