The Issue Whether Petitioner’s application to transfer Alcoholic Beverage License No. 3900441/4COP should be approved.
Findings Of Fact Based on the demeanor and credibility of the witnesses, in consideration of the oral and documentary evidence adduced at the hearing, and on the entire record of this proceeding, the following facts are found: Petitioner is an individual. At some time in the past, Petitioner, Ms. Hudson, Mary Pease, and Scott Wetmore incorporated as Peace and Love Enterprises, Inc. (P&L). P&L holds Alcoholic Beverage License No. 3900441/4COP (beverage license) issued by the Division. The Division is the state agency charged with the administration (including licensing), regulation, and enforcement of Florida’s alcoholic beverage laws pursuant to section 20.165(2)(b) and chapters 561 through 568, Florida Statutes (2018).3/ All applications filed with the Division are subject to investigation pursuant to section 561.18. Applications for the transfer of an alcoholic beverage license are considered pursuant to section 561.32. Ms. Scott is currently the Division’s senior management analyst II, over the Tampa, Fort Myers, and Orlando district offices. Ms. Scott supervises the processing and reviewing of applications for alcoholic beverage licenses, tobacco licenses, transfers of licenses, and permits. Once an application for the transfer of an alcoholic beverage license is submitted to the Division, it is reviewed for specific information. The Division looks at the named current license holder to ensure that the signature on the application matches the name of someone authorized to sign the application. The Division verifies that the application information is complete on its face, the alcoholic beverage license is current and can be transferred, and there are no “flags” on the license that would prevent a transfer. The Division must determine if the transferee has a current alcoholic beverage license or not. The Division then looks at the person, corporation, or LLC that wants the alcoholic beverage license transferred to it, and conducts background checks on all persons associated with the application. Once all the background checks are completed, then a recommendation of approval or denial is made. If the approval is given, an invoice on the transfer is generated and the applicant is told to pay the fee to complete the application transfer. If there is an intended denial, a notice is sent to the applicant with the reasons stated for the action. Prior to the transfer application, P&L used the beverage license to operate a restaurant/bar, The Manhattan Dolce Bar and Bistro (The Manhattan). Ms. Hudson was the primary force for The Manhattan’s operation on behalf of P&L. Petitioner or Ms. Hudson met an individual, John Clay Weldy, who wanted to get involved in the business. Mr. Weldy became associated with P&L and took actions that made it appear as though he had authority over the beverage license and The Manhattan. No evidence was presented that the P&L Board of Directors, officers, or shareholders conferred any authority on Mr. Weldy to make any P&L decisions or to act on its behalf. Additionally, no credible evidence was presented by Petitioner that the P&L Board of Directors, officers, or shareholders conferred any authority on Petitioner or Ms. Hudson to make any P&L decisions or to act on its behalf. At some point, when Ms. Hudson became too ill to run The Manhattan, Ms. Oliverio became its manager until she was fired by Mr. Weldy. At some point, Ms. Oliverio and her boyfriend attempted to purchase the beverage license from Mr. Weldy, but he made the offer too burdensome for that sale to be completed. On August 15, 2016, Petitioner filed an application to transfer the beverage license from P&L to Petitioner. On August 25, 2016, Beverage Law Institute, Inc. (BLI), filed an application to transfer the same beverage license from P&L to BLI. Ms. Oliverio was not an officer of P&L, and was not familiar with the details of the P&L corporate structure. Further, Ms. Oliverio did not participate in Petitioner’s transfer application. Mr. Housler worked at The Manhattan. Mr. Housler did not have any knowledge of the sale of the beverage license or the attempted transfer of the beverage license. The Division had completed its investigation of Petitioner’s application filed on August 15, 2016, and had signaled its intent to approve it by issuing an invoice for the transfer. However, the invoice had not been paid when the second application to transfer the same beverage license was filed by BLI. On September 7, 2016, the Division issued to Petitioner a Notice of Intent to Deny License, setting forth the following as the grounds for the denial: Authority: 561.18 and 561.32(1)(a), Florida Statutes. Reason: Due to transfer application and supporting documentation submitted to the Division by the Beverage Law Institute on August 25, 2016, the Division is unable to determine whether a bona fide sale of the business has been made such that the licensee may obtain a transfer. On September 7, 2016, the Division issued to BLI a Notice of Intent to Deny License, setting forth the following as the grounds for the denial: Authority: 561.18 and 561.32(1)(a), Florida Statutes. Reason: Due to transfer application and supporting documentation submitted to the Division by Marie Antoinette Rochette on August 10, 2016,[4/] the Division is unable to determine whether a bona fide sale of the business has been made such that the licensee may obtain a transfer. Ms. Hudson testified that a sale of P&L to either Petitioner or BLI had not and has not happened. Ms. Scott assisted Petitioner and Ms. Hudson as they attempted to maneuver the transfer application through the Division’s process. The affidavit of the applicant form fails to list the “DBA” (doing business as) on Petitioner’s August 15, 2016, transfer application, but contains Petitioner’s notarized signature. The affidavit of the transferor form also fails to list the “DBA,” but contains Petitioner’s notarized signature. Ms. Scott testified that although the Division records provided that Petitioner was authorized to sign on behalf of P&L, the transfer application was denied because a second transfer application was received prior to Petitioner’s transfer invoice being paid. In the August 25, 2016, BLI transfer application, the affidavit of the applicant form lists the “DBA” as “ESCROW,” and contains Horace Moody’s notarized signature. The affidavit of the transferor form also lists the “DBA” as “ESCROW” but contains Mr. Weldy’s notarized signature. Ms. Scott testified that the Division records also provided that Mr. Weldy was authorized to sign on behalf of P&L. This transfer application was denied because the first transfer application had been submitted. The two competing interests, each asserting that P&L wanted to transfer the beverage license to different transferees, made it impossible for the Division to approve either transfer application.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order denying Marie Antoinette Rochette’s application for the transfer of Alcoholic Beverage License No. 3900441/4COP. DONE AND ENTERED this 1st day of May, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 2019.
Findings Of Fact At some time prior to March 1, 1963, Randall R. Aleno, a former deputy sheriff with the Volusia County, Florida, Sheriff's Department; his brother, Mick Aleno; his father, Charles Aleno; and his wife, Patty Aleno, formed Aleno's Enterprises, Inc., a Florida corporation, with Randall Aleno owning more than 50 percent of the corporate stock. Randall Aleno is the corporate president; Mick Aleno,the vice president; Charles Aleno, the treasurer; and Patty Aleno, the secretary. Having been a long-time resident of Volusia County, Randall Aleno saw a need for and developed a concept for a form of mobile concession stands to operate on the St. Johns River in the general area of Volusia County and the contiguous counties north and south of it. Before taking any definitive steps toward implementing this idea, Randall Aleno, on January 10, 1983, wrote letters both to the Commanding Officer of Port Operations for the U.S. Coast Guard in Jacksonville, Florida, and a representative of the Volusia County Health Department outlining in general terms the nature of his plan and seeking approval of those agencies for the project. Apparently, neither agency interposed any objection. He also contacted the local office of the Petitioner, Division of Alcoholic Beverages and Tobacco, where he spoke with Agents Dunbar, Blanton, and Clark, outlining his proposal. On at least one occasion, Mr. Aleno told Division of Alcoholic Beverages and Tobacco representative Clark, while at the counter in the Division of Alcoholic Beverages and Tobacco Daytona Beach office, that he intended to make bulk sales of beer from boats tied to buoys in the St. Johns River at the time of sales, but which would, when not in operation, be moored at the Tropical Marina in DeLand, Florida. In Dir. Clark's opinion, this type of proposed operation was not covered or provided for in the statutes or in the rules of the Division and he felt the applications for licenses for these operations should he denied. According to Mr. Clark, when he advised Mr. Aleno of this on several occasions, Mr. Aleno still wanted to try and submitted the application. At some time during this period, Mr. Aleno, who had been with the sheriff's office for 14 years, retired from that employment, 1/ purchased three houseboats (one 39-foot boat and two 26-foot boats) which he thoroughly rehabilitated to be capable of storage and the sale of sandwiches and package sales of soft drinks and beer. The sandwiches to be sold were to he pre- wrapped, the beverages in cans, coffee in styrofoam cups with lids, and all condiments would be in sealed packages. No food or drink was to be opened or consumed on board the boats, floating concession stands. When the boats were completed, because he had been told by Division of Alcoholic Beverages and Tobacco agents at the Daytona Beach office that a license would not be issued to a moving establishment, he secured a boat slip for each boat at the Tropical Marina. Mr. Aleno picked up the applications for beverage licenses from the Daytona Beach office. Me also wrote to a beverage supervisor at the Jacksonville office in an effort to prepare the way for his applications. Mr. Aleno was told, at some point in the procedure, that he would need to submit copies of the plans, the boat layouts and details of the operation. All of these, in addition to the letters from the Coast Guard and the county health department, were submitted for consideration with the applications. Mr. Aleno attempted to describe his proposal to each official with whom he came into contact. The local Division of Alcoholic Beverages Supervisor, Lt. Powell, and Mr. Clark admit that Mr. Aleno told them what he planned to do with his operation and how it would work. Lt. Powell reviewed the complete application and discussed it with Mr. Clark. He, Powell, was aware that the sales of unopened packages of beer would be made out on the river and not at the Tropical Marina before the application was forwarded to Tallahassee for action, but there was nothing written in the application to indicate the sales would be made up and down the river. The applications showed the location of the premises as Tropical Marina, Slips 41, 42 and 43. The applications were forwarded to Tallahassee in the normal course of business apparently without recommendation one way or the other by the local office. The licenses were issued on April 1, 1983, showing their location as Tropical Marina, Slips 41, 42 and 43, respectively, Lakeview Road, DeLand, Florida. The 1-APS licenses were issued to Aleno's Enterprises, Inc. trading as Randv's Subs #41, 42 and 43. (License Numbers 74-1565, 74-1566, and 74-1567) Respondent does not operate its boats as a steamship line. It does not carry people, other than employees, on the boats for pay or gratis. None of the boats go more than 100 miles in either direction from the point of mooring. Respondent has not been selling beverages for consumption on the premises, but has been making package sales only of beer off the boats. Barry Schoenfeld, Chief of Licensing Records for Respondent in Tallahassee, reviewed these applications and the license files sometime during the summer of 19-83 after the licenses were issued. His review of the files led him to conclude that the Respondent's operation does not qualify for a 1-APE license because the boats are not permanently moored at their docks. Florida Beverage Laws require, generally, a fixed permanent structure. There are some exceptions for movable vehicles such as steamships, trains, and airplanes and also for pleasure boats which go more than 100 miles per outing. He believes Respondent's boats would qualify for this latter license which, however, is a COP license, not an APS license. He has thoroughly examined the Respondent's applications; and the way the total file reads, it gives him the impression the boats would be moored at the dock in a fixed permanent location. This is why the licenses were issued. Since an obvious mistake was made, and since Mr. Schoenfeld did not know of any provision in the Florida Beverage Law which covers an operation such as that of Respondent, in the summer of 1983, he called Respondent, speaking with Mrs. Patty Aleno, and advised her the operation would have to cease. Upon advice of counsel, Respondent did not stop the operation at that time.
Recommendation That Respondent's licenses be revoked without prejudice so as to permit Respondent or its officers to, in the future, apply for the issuance of a beverage license, if otherwise qualified.
The Issue The issues in these cases are whether Respondent is guilty of serving alcoholic beverages to minors and, if so, what penalty is appropriate.
Findings Of Fact Respondent holds license number 58-01997, series 2-COP, for the retail sale of alcoholic beverages. The licensed premises were located at 536 West Church Street, Orlando, Florida. Respondent abandoned the premises at the end of August, 1989. The bar owned and operated by Respondent is no longer in operation, and the license is no longer active. On at least three occasions prior to the incident in question, one or more representatives of Petitioner had warned Lester Thomas, the sole shareholder and officer of Respondent, that he or his company's employees were serving alcoholic beverages to underage persons. On one of these occasions, Mr. Thomas complained, "Every time you come around here, there are problems. You catch me." At about 11:15 p.m. on August 5, 1989, two representatives of Petitioner entered the Negril Cove bar and observed Mary Ann Carmody, age 16 years, consuming an alcoholic beverage that a companion had purchased from Respondent. At all material times on that evening, Mr. Thomas himself was tending the bar at Negril Cove. At no time was Ms. Carmody asked for any identification. Under the circumstances, Mr. Thomas permitted Ms. Carmody to consume the alcoholic beverage on the premises.
Recommendation Based on the foregoing, it is hereby recommended that the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking the license of Respondent. RECOMMENDED this 23rd day of April, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1990. COPIES FURNISHED: Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Joseph A. Sole, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Thomas A. Klein Assistant General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Jerry S. Luxenburg 1214 East Robinson Street Orlando, FL 32801
The Issue The issues in this case are as set forth in the attached copy of the Notice to Show Cause and by its attachment this copy becomes a part of the Recommended Order. This Notice to Show Cause in its various counts raises the question of whether the action of the Respondent which took place on March 21, 1978, through its "bar spending" practice (i.e., the practice of a representative of manufacturer or a wholesaler purchasing drinks for consumers at the premises of a retail licensee) has violated the provisions of Subsection 561.42(1), Florida Statutes.
Findings Of Fact By agreement and stipulation the parties, in the person of their counsel, have offered a Statement of Facts. This Statement of Facts is accepted by the Hearing Officer to be the evidential fact determination from which the outcome of the matters here in dispute will be concluded. To that end the Statement of Facts is attached to this Recommended Order and made a part of the Recommended Order. This stipulation of the Statement of Facts appears as it was offered at the time of the formal hearing conducted on May 22, 1979. The Respondent, as a brewer of malt beverages licensed under the laws of Florida, has been charged with the giving of financial aid and assistance to a number of vendors licensed by the State of Florida. There are sixteen licensed vendors named in the allegation in eighteen separate counts. This activity on the part of the Respondent has purportedly violated the conditions of Section 561.42, Florida Statutes (1977), which contains the following language: Section 561.42 Tied house evil; financial aid and assistance to vendor by manufacturer or distributor prohibited; procedure for enforcement; exception.-- No licensed manufacturer or distributor of any of the beverages herein referred to shall have any financial interest, directly or indirectly, in the establishment or business of any vendor licensed under the Beverage Law, nor shall such licensed manufacturer or distributor assist any vendor by any gifts or loans of money or property of any description or by the giving of any rebates of any kind whatsoever. No licensed vendor shall accept, directly or indirectly, any gift or loan of money or property of any description or any rebates from any such licensed manufacturer or distributor; provided, however, that this shall not apply to any bottles, barrels, or other containers necessary for the legitimate transportation of such beverages, or advertising materials, and shall not apply to the extension of credit, for liquors sold, made strictly in compliance with the provisions of this section. This particular provision of law has application to the malt beverage business through the finding of the Florida Supreme Court in Castlewood International Corp. vs. Wynne, 294 So.2d 321 (Fla. 1974). The specific portions of Subsection 561.42(1), Florida Statutes (1977), which are at issue in this cause, are those provisions dealing with the meaning of the words "gifts" and "rebates" found in the subject Subsection. (The parties, in the course of their argument, conceded that the portion of that Subsection dealing with loans of money or property is not to be regarded.) In determining the meaning of the words "rebates" and "gifts", as set forth in Subsection 561.42(1), Florida Statutes (1977), the Petitioner has promulgated rules in the Florida Administrative Code which define those terms. The recitation of those roles is as follows: 7A-1.09 Rebate. The term 'rebate' (often referred to as accumulative promotion or retroactive discount) shall include any refund or discount made or allowed other than such discounts as are permitted under Section 561.42, Florida Statutes; and as such they are prohibited. 7A-1.10 'Gift'. The term `gift' shall apply to the giving of free goods or things of value as a discount not otherwise permitted by law or reward for purchasing any given quantity of alcoholic beverages whether at one time or over a period of time; and as such they are prohibited. A close reading of the role definition of "rebate", establishes that rebates as considered in cases interpreting the meaning of the beverage laws in the State of Florida; rebates which constitute accumulative promotion or retroactive discounts; and refunds or discounts made or allowed other than such discounts permitted under Section 561.42, Florida Statutes, are prohibited by Subsection 561.42(1), Florida Statutes, as implemented by the definitional statement found in Rule 7A-1.09, Florida Administrative Code. This definition found in the rule establishes the parameters for prosecuting claims against this Respondent. Likewise, the definition found in Rule 7A-1.10, Florida Administrative Code, dealing with the term "gifts" sets the limits beyond which Petitioner may not venture in its efforts to penalize the Respondent for alleged violations of Subsection 561.42(1), Florida Statutes (1977) premised on the theory that the licensee has given a vendor a gift. "Gift" within the meaning of the rule is constituted as the giving of free goods; the giving of things of value as a discount not otherwise permitted by law; or the giving of a reward for purchasing any given quantity of alcoholic beverages either at one time or over a period of time. In examining the numerous possibilities for establishing a "rebate" or "gift", the most reasonable beginning is to establish those discounts which are allowed. The reference in the rule defining "rebate" describes this form of discount as a discount permitted by Section 561.42, Florida Statutes. In particular, Subsection 561.42(6), Florida Statutes (1977), provides: (6) Nothing herein shall be taken to forbid the giving of trade discounts in the usual course of business upon wine and liquor sales. Therefore, any discount given in the usual course of business is allowed. Moreover, in view of the construction of the grammar in Rule 7A-1.09, Florida Administrative Code, dealing with "rebates", any refund given in the ordinary course of business will be allowed. Turning to that element of the definition of "gifts" found in Rule 7A-1.10, Florida Administrative Code, which establishes that discounts net otherwise permitted by law are prohibited, when that language is considered in view of the statement of Subsection 561.42(6), Florida Statutes (1977), it demonstrates that trade discounts in the usual course of business are not gifts. A discount in the usual course of business is defined in Subsection 561.01(10), Florida Statutes (1977), which states: 'Discount in the usual course of business means a cash discount given simultaneously at the time of sale. The same discounts shall be offered to all vendors buying similar quantities. Any discount which is in violation of this section shall be considered an arrangement for financial assistance by gift. The next point in the inquiry is whether the activities in the case sub judice, constitute the giving of a discount in the usual course of business from the manufacturer to vendors. Obviously, the answer is no. Whatever final characterization should be given the activities, they were not cash discounts given simultaneously at the time of a sale between the manufacturer and vendors in the sixteen establishments. Consequently, the conflict must be resolved by the systematic analysis of the remaining terms and phrases found in the definitions set out in Rules 7A-1.09 and 7A-1.10, Florida Administrative Code. The first of these terms and phrases to be examined is the term "rebate". This terminology involves a consideration of the meaning of the term "rebate" in its common meaning and the term "rebate" as specifically defined in the subject rule, as being an accumulative promotion or retroactive discount. The Petitioner in its Proposed Recommended Order advances the economic theory that a vendor may not assume that his products will be sold within a given period or at a given price. Under this theory, the Respondent's purchase of the beer at retail prices reduced the vendor's cost of acquisition giving him a so-called automatic and predictable profit, thereby effecting a "rebate" of the vendor's purchase price by increasing cash flow and giving a guaranteed profit to the vendor. This theory in the mind of the Petitioner is supported by the fact that when free beer was given to customers of a vendor, the reasonable implication is that the vendor would give away more products during the free beer party time sequences then he would normally sell during the free beer party time sequence. That hypothetical may be true; however, the facts stipulated to in the course of this hearing do not establish that more beer was consumed on the premises because it was given away than would have been the case if the patrons had to pay the retail price, and no official notice or recognition can be taken of that proposal. To establish the desired facts, the Petitioner would need to have proved these facts or gained a stipulation from the Respondents to that effect. Having failed to establish the increased volume theory, the Petitioner is unable to demonstrate increased profits due to increased volume, ergo there is no "rebate" or retroactive discount that has been shown by the Petitioner in its proof. Moreover, the ordinary meaning of the word "rebate" does net lend itself to the establishment of a "rebate" by the evidential facts adduced in this hearing. (See Black's Law Dictionary, Revised Fourth Edition's definition of the term "rebate".) Again, looking at the definition of "rebate" in the subject role dealing with the terms "refund" or "discount", there is no showing that the Respondent was repaying, making restoration or returning money to the vendors as a form of restitution or repayment when it purchased the alcoholic beverages for the benefit of the patrons of the vendor, (see Black's Law Dictionary, Revised Fourth Edition's definition of the term "refund", and it has already been concluded that the payment from the manufacturer to the vendor was not a retroactive discount. There is no showing that the vendors paid any less than usual when they purchased the products which were subsequently given away to the general public and paid for by the Respondent at the usual prices. The Petitioner has also failed to prove that the "bar spending" constituted a "gift" within the meaning of Rule 7A-1.10, Florida Administrative Code. The free goods that were given were goods given to the general public and, absent a showing that the volume of sales would have been increased due to Respondent's purchase of the alcoholic beverages, it cannot be shown that the vendors were extended free goods. (The discount theory offered under the definition of "gift" has been discussed in examining the meaning of the word "rebate", and no further reference is necessary.) Additionally, it has not been shown that any form of reward was extended to the vendors for purchasing given quantities of alcoholic beverages either upon a single event or over a period of time, because the proof is insufficient to demonstrate that any greater volume of alcoholic beverage was sold under the "bar spending" arrangement, than would have bean sold ordinarily and having failed to make that showing, it cannot be successfully argued that the vendors reaped the rewards of extra profits from the activities which transpired in their licensed premises, either as direct profits on sales or tips for its employees. Finally, the Petitioner's assertion that the mere act of having the promotional staff of the Respondent put on the bar party constituted a "gift" or reward is not convincing for reason that the proof does not indicate that particular benefit. In summary, Petitioner has failed to prove that the activities constituted "rebates" or "gifts" within the meaning of Subsection 561.42, Florida Statutes (1977), and although the Petitioner may be philosophically opposed to the arrangement which this Respondent had with the several vendors to promote "bar spending" in the licensed premises of the vendors, to reach that result it would be necessary to strain the construction of Subsection 561.42(1), Florida Statutes (1977), and its attendant Rules 7A-1.09 and 7A-1.10, Florida Administrative Code, beyond allowable bounds. The parties have availed themselves of the opportunity to submit Proposed Findings of Fact, Conclusions of Law and Recommendations and to the extent that these proposals are consistent with this Recommended Order they have been considered and utilized; to the extent that they are inconsistent with this Recommended Order, they are, after consideration, specifically rejected.
Conclusions Respondent is ordered to pay a civil penalty in an amount equal to the actual consideration paid the 16 vendors and 18 counts on the Notice to Show Cause, attached hereto and incorporated herein as Exhibit "B". Where tips were paid, 15 percent of the actual consideration paid to the particular vendor is assessed as a penalty. DONE and ORDERED this * day of September, 1979, in Tallahassee. CHARLES A. NUZUM, DIRECTOR Division of Alcoholic Beverage and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 (904) 488-7891 * NOTE: The Final Order filed with DOAH has an unreadable issue date; the 30th has been used for the ACCESS Index.
Recommendation It is recommended that the allegations in this cause be DISMISSED. DONE AND ORDERED this 15th day of June, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Dennis LaRosa, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 T. Michael Carpenter, Esquire Associate General Counsel and Donald S. McDonald, Esquire, General Counsel Anheuser-Busch, Inc. 721 Testalozzi Street St. Louis, MO 63118 Paine Kelly, Jr., Esquire Macfarlane, Ferguson, Allison & Kelly Post Office Hex 1531 Tampa, Florida 33601 Attachment 1 STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF BEVERAGE TALLAHASSEE, FLORIDA NOTICE TO SHOW CAUSE - NOTICE OF INFORMAL CONFERENCE NOTICE TO SHOW CAUSE WHY YOUR DIVISION OF BEVERAGE LICENSE/CIGARETTE PERMIT SHOULD NOT HAVE A CIVIL PENALTY ASSESSED AGAINST IT OR BE SUSPENDED OR REVOKED. LICENSE OR PERMIT NUMBER 26-1312 YOU ANHEUSER-BUSCH, INC. TRADING AS ANHEUSER-BUSCH, INC. LOCATED 111 Busch Drive, Jacksonville Florida are hereby notified by the Director of the Division of Beverage, Department of Business Regulation, State of Florida, that he has been presented certain evidence which, if true, is good and sufficient cause for him, pursuant to Section 561.29/210.16, Florida Statutes, to assess a civil penalty against or to suspend or revoke your Division of Beverage license/permit, license/permit number 26-1312 issued to you by the State of Florida under the laws of Florida for the current license year, or any renewal thereof, over which the Division of Beverage has jurisdiction said cause being for any one of the following: On or about the 21st day of March, 1978, you ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did financially assist a retail vendor, to wit; SUDER-GOODRICH, INC., DBA MAC'S BAR, Licence number 74-452, located at 2000 S. Atlantic Avenue, Daytona Beach Shores, Volusia County, FL, by the giving of a gift, loan of money or property or by the giving of a rebate, to wit; check, check number 2, in the amount of $361.00, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT, and endorsed by SUDER GOODRICH, INC. MAC'S BAR, contrary to F.S. 561.42 (1). On or about the 21st day of March, 1978, you ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employe, to wit; JACK FORST, did assist financially, a retail vendor, to wit; GREGORY L. CALDWELL, DBA THE PUB, License number 74-837, located at 3304 S. Atlantic Avenue, Daytona Beach Shores, Volusia County, FL, by the giving of a gift, loan of money or property or by the giving of a rebate, to wit; a check, check number 4, in the amount of $210.00, dated March 21, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by THE PUB, contrary to F.S. 561.42(1). On or about the 21st day of March, 1978, you ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING, did assist financially, a retail vendor, to wit; 427 N. ATLANTIC AVE., INC., DBA BIG MOTHERS, License number 74-210, located at 525 N. Atlantic Avenue, Daytona Beach, Volusia County, Florida, by the giving of a gift, loan of money or property or by the giving of a rebate, to wit; a check, check number 1, in amount of $440.00, dated March 21, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by BIG MOTHERS DISCO, 427 N. ATLANTIC., INC., contrary to F.S. 561.42(1). On or about the 21st day of March, 1978, you ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING, did assist financially, a retail vendor, to wit; 427 N. ATLANTIC AVE., INC., DBA BIG MOTHERS, License number 74-210, located at 525 N. Atlantic Avenue, Daytona Beach, Volusia County, Florida, by the giving of a gift, loan of money or property or by the giving of a rebate, to wit; a check, check number 2, in the amount of $150.00, dated March 21, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by BIG MOTHERS DISCO, 427 N. ATLANTIC, INC., contrary to F.S. 561.42 (1). On or about the 21st day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did assist financially, a retail vendor, to wit; ANN L. METZ, DBA. ENTER METZO #1, License number 74-205, located at 3278 S. Atlantic Avenue, Daytona Beach Shores, Florida, Volusia County, by the giving of a rebate, to wit; a check, check number 3, in the amount of $310.00, dated March 21, 1978, drawn on the account of ANHEUSER BUSCH DISBURSEMENT ACCOUNT and endorsed by ENTER-METZ-O, contrary to F.S. 561.42(1). On or about the 22nd day of March, 1978, you ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING did financially assist a retail vendor, to wit; JEANE B. HALL, DBA, PIT STOP ARCADE, License number 74-722, located a 1114 Main Street, Daytona Beach, Volusia County, Florida, by the giving of a rebate, to wit; a check, check number 3, in the amount of $750.00, dated March 22, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by PIT STOP ARCADE, J. HALL, contrary to F.S. 561.42 (1). On or about the 22nd day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did financially assist a retail vendor, to wit; F.B. & L., INC., DBA, SHARK LOUNGE, License number 74-372, located at 730 Broadway Avenue, Daytona Beach, Volusia County, Florida, by the giving of a rebate, to wit; a check, check number 7, in the amount of $280.00, dated March 22, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by SHARK LOUNGE & PACKAGE, contrary to F.S. 561.42(1). On or about the 22nd day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING, did financially assist a retail vendor, to wit; BOOT HILL, INC., DBA BOOT HILL SALOON, License number 74-5, located at 310 Main Street, Daytona Beach, Volusia County, Florida, by the giving of a rebate, to wit; a check, check number 5, in the amount of $356.00, dated March 22, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT, and endorsed by BOOT HILL, INC., contrary to F.S. 561.42(1). On or about the 22nd day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did financially assist a retail vendor, to wit; OLIVER A. BELL, DBA CARNIVAL MOTOR INN, by the giving of gifts, loans or money or property or by the giving of a rebate, to wit; a check, check number 5, dated March 22, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by CARNIVAL MOTOR INN BAR, MANAGERS ACCOUNT, FRIDAY'S NIGHT CLUB contrary to F.S. 561.42(1). On or about the 23rd day of March, 1978, you ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did financially assist a retail vendor, to wit; DOUGLAS SILVER, DBA BLACKBEARD'S TAVERN, by the giving of gifts, loans of money or property or by the giving of a rebate, to wit; a check, check number 13, in the amount of $276.00, dated March 23, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by BLACK BEARD'S TAVERN, SILVER, contrary to F.S. 561.42(1). On or about the 23rd day of March, 1978, you ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING, did financially assist a retail vendor, to wit; GRADY SCOTT HENSLEY, DBA, THE ELBOW ROOM, by the giving of gifts, loans of money or property or by the giving of a rebate, to wit; a check, check number 6, in the amount of $200.00, dated March 23, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and signed by SCOTT HENSLEY, contrary to F.S. 561.42(1). On or about the 23rd day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING, did financially assist a retail vendor, to wit; CONSOLIDATED INN OF DAYTONA BEACH, INC., DBA HOLIDAY INN SURFSIDE, by the giving of gifts, loans of money or property or by the giving of a rebate, to wit; a check, check number 5, in the amount of $900.00, dated March 23, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by CONSOLIDATED INNS OF DAYTONA BEACH, INC., DBA HOLIDAY INN SURFSIDE, contrary to F.S. 561.42(1). On or about the 23rd day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did financially assist a retail vendor, to wit; SAM L. BERRY, DBA BROADWAY SAM'S, by the giving of gifts, loans of money or property or by the giving of a rebate, to wit; a check - three checks totaling $640.00, contrary to F.S. 561.42(1). On or about the 24th day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING, did financially assist a retail vendor, to wit; P.J.'S OF DAYTONA, INC., DBA, P.J.'S, License number 74-473, located at 400 Broadway Avenue Daytona Beach, Volusia County, Florida, by the giving of gifts, loans of money or property or by the giving of rebate, to wit; a check, check number 9, in the amount of $240.00 dated March 24 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT, contrary to F.S. 561.42(1). On or about the 24th day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did financially assist a retail vendor, to wit; PINK PUSSY CAT, INC., DBA, RED GARTER CLUB, License number 74-356, located at 1001 Main Street, Daytona Beach, Volusia County, Florida, by the giving of gifts, loans of money or property or by the giving of a rebate, to wit; a check, check number 14, in the amount of $270.00, dated March 24, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by RED GARTER, PINK PUSSY CAT, INC., contrary to F.S. 561.42(1). On or about the 24th day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did assist a retail vendor financially, to wit; McMILLIAN AND WRIGHT, INC., DBA, THE OCEAN PIER, License number 74-771, located at Main Street Over the Ocean, Daytona Beach, Volusia County, Florida, by the giving of gifts, loans of money or property or by the giving of rebates, to wit; a check, check number 5, in the amount of $850.00, dated March 21, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by McMILLIAN & WRIGHT, INC., OPERATING OCEAN PIER CASINO, contrary to F.S. 561.42(1). On or about the 24th day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did assist financially a retail vendor, to wit; McMILLIAN and WRIGHT, INC., DBA, THE OCEAN PIER, License number 74-771, located at Main Street Over The Ocean, Daytona Beach, Volusia County, Florida, by the giving of gifts, loans of money or property or by the giving of rebates, to wit; a check, check number 6, in the amount of $150.00, dated March 21, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by McMILLIAN & WRIGHT, INC., OPERATING OCEAN PIER CASINO, contrary to F.S. 561.42(1). On or about the 24th day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING, did financially assist a retail vendor, to wit; DAYTONA SAFARI MOTEL, INC., DBA, THE WRECK, License number 74-546, located at 7 S. Wild Olive, Daytona Beach, Volusia County, Florida, by the giving of gifts, loans of money or property of by the giving of rebates, to wit; a check, check number 8, in the amount of $420.00, dated March 24, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by WRECK BAR, RINGO, contrary to F.S. 561.42(1). Attachment 2
The Issue Whether Respondent committed the violations alleged in the Emergency Order of Suspension and Notice to Show Cause and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating licensed alcoholic beverage establishments. At all times material to the allegations in this case, the Respondent, Marsbar of Kendall, Inc., doing business as Marsbar, held alcoholic beverage license number 23-00706 which is a series 4-COP license. At all times material to the allegations in this case, Marsbar was located at 8505 Mills Drive, R-2, in Miami, Dade County, Florida. At all times material to the allegations in this case, the following persons were officers and/or shareholders of the Respondent corporation: Mark Vasu, Shannon Miller, David Lageschulte, Gerald Joe Delaney, and Henry Long. Others having a direct or indirect interest in the company are: Bonnie M. Vasu, Carole W. Vasu, Paul Lynch, Jonathan G. Delaney, and Douglas Long. Prior to the issuance of the Emergency Order of Suspension which is at issue in this proceeding, the Department conducted an investigation of alleged acts of recurring, illegal narcotic activity on the licensed premises. In furtherance of such investigation, Special Agent Bartelt, Detective Fernandez, and Detective Robertson entered the licensed premises in an undercover capacity for the purpose of purchasing illegal substances. In this regard Special Agent Bartelt observed the two detectives as they attempted to acquire illegal substances from persons within the licensed premises. The investigation at Marsbar began on April 5, 1997, and was concluded on June 12, 1997. In total, the detectives made eight purchases of a substance which was later tested and determined to contain cocaine. Respondent did not object to, nor dispute the accuracy of, the lab reports received into evidence which confirmed the substances contained cocaine. As to the purchase which occurred on April 5, 1997, Detective Robertson approached a male bathroom attendant and represented to him that "Anthony" had sent him. He then asked the attendant for drugs and, by implication in the language of such transactions, requested cocaine. The attendant referred him to a patron of the bar who he described as a man in a black shirt with a black cap. Detective Robertson attempted to locate the patron as he had been described and even asked a security person if he had seen the male. When the security person denied having seen any drug dealers, Detective Robertson went back to the attendant for clarification who then pointed out an individual known in this record as "Juan." After transferring $20.00 to Juan, Detective Robertson received a small plastic bag containing less than one-half gram of cocaine. Upon receipt of the bag, Detective Robertson held the bag at approximately waist level and "flicked" it to verify the amount of the contents. This was done in an inconspicuous manner and simulated the procedure the detective felt was used by drug purchasers to examine the amount of the substance being procured. Although this transaction took place eight or ten feet from a bartender, there is no evidence that the transaction was witnessed by any person other than those participating in the buy. On April 19, 1997, Detective Fernandez went to the female restroom attendant and asked for drugs. After being advised to return later, Detective Fernandez observed an unknown male hand the attendant a plastic bag. In exchange for $25.00, the attendant then delivered a plastic bag containing approximately one-half gram of cocaine to Detective Fernandez. Although Detective Fernandez observed a bartender enter and exit the restroom during the events described in this paragraph, there is no evidence that the bartender observed any or part of the transactions which took place. On May 8, 1997, or the early morning of May 9, 1997, Detective Robertson again approached the male bathroom attendant at Marsbar and requested drugs. On this occasion the attendant, in exchange for $20.00, sold the detective approximately one-half gram of cocaine in the men's restroom. Although there were other patrons of the bar within the restroom, there is no evidence that any of them witnessed the transaction. On May 9, 1997, Detective Fernandez also sought to purchase drugs through the female restroom attendant. Although there were numerous patrons entering and exiting the facility, there is no evidence that anyone observed Detective Fernandez exchange $25.00 for approximately one-half gram of cocaine which was delivered in a small plastic bag. On May 16, 1997, Detective Fernandez purchased two bags of cocaine for $30.00 each from the female restroom attendant following the same procedure described above. Again, there is no evidence that anyone in or near the restroom observed the transactions. Detectives Fernandez and Robertson went to Marsbar again on May 30, 1997 for the purpose of purchasing illegal drugs. Using the same methods described above, Detective Fernandez was unable to purchase cocaine on this date. Detective Robertson, however, after beginning a conversation inside Marsbar, was able to purchase cocaine in the parking lot outside the club. This transaction resulted from contact made with a club patron known in the record as "Alex." This individual and the female restroom attendant introduced Detective Robertson to another patron known in this record as "Al" who later delivered the cocaine in the parking lot. Another male, "Manolito" in this record, approached Al and demanded cocaine he had allegedly been sold but had not received. Conversation regarding the pending sales took place in the licensed club, but it is unknown whether any employee of Marsbar heard the nature of the transactions discussed. A presumably drunken outburst from one bar patron suggests he understood a drug transaction was being discussed. It is undisputed that the actual exchange took place off the licensed premises. Finally, on June 12, 1997, Detective Fernandez returned to Marsbar and for $30.00 was able to purchase approximately one- half gram of cocaine. This purchase, like the others by Detective Fernandez, was through the female restroom attendant and occurred in or near the restroom facility. There is no evidence anyone observed the transaction. At all times material to the allegations of this case, Marsbar was a popular club which was well attended on the nights of this investigation. The audio system for the club, though especially dominating on the dance floor, distributed music throughout the licensed premises. As to the lighting system for the club, at all times material to this investigation, it would have been set at its lowest levels of illumination throughout the licensed premises. Consequently, only the restrooms would have been well lit. At all times material to the allegations of this case, the restroom attendants were not employees of Marsbar or its management company but were contract personnel through a third party valet service operated by David Cook. Marsbar paid Cook to provide restroom attendants. This contract was terminated on June 13, 1997, when Respondent learned of the attendants' alleged involvement in the illegal transactions described above. Further, Marsbar notified Cook of its intention to assist in the prosecution of such individuals. Marsbar is managed by a company known as Chameleon Concepts. In order to effectively identify and minimize potential losses for Marsbar, Chameleon Concepts contracted with a company whose purpose was to audit operations to ensure the overall integrity of the business operation. This auditor, a forensic fraud examiner, was to identify losses or potential losses due to fraud, embezzlement, policy or procedure violations, or other improprieties. Thus, effective October 1, 1996, Marsbar was voluntarily being reviewed by an independent company for potential improprieties. The auditor for the company, John Capizzi, found no violations of policy, alcoholic beverage rules, or regulations. Prior to the investigation of this case, Marsbar employees have been required to participate in responsible vendor programs. Marsbar management routinely conducts meetings wherein responsible vendor practices are discussed. Marsbar and Chameleon Concepts have developed written employee handbooks and policies which specifically admonish employees regarding illegal substances on the licensed premises. Marsbar employees and managers are instructed to advise the management of any suspected illegal substances on the licensed premises. In the past, Marsbar has participated in campaigns designed to retain false identification used by suspected underage drinkers to gain entrance to licensed premises. The testimony of Mr. Vasu, regarding efforts of the company to comply with all rules or regulations of the Department, has been deemed credible and persuasive regarding Marsbar's position on illegal drug transactions. Management would not condone or allow illegal drug sales if they were known to it. None of the officers or shareholders of Marsbar were aware of the illegal drug transactions occurring on the licensed premises. Cocaine is a controlled substance, the sale of which is prohibited by Florida law. None of the purchases described herein were of such a nature or were so conspicuously transacted that a reasonable person would have known illegal sales were taking place. None of the patrons of the club who testified for Respondent were aware that illegal drug sales took place within the licensed premises. Neither of the detectives making the purchases acted in a flagrant or open manner. Moreover, neither of the detectives attempted to verify whether or not bartenders, security guards, or managers employed by Marsbar were aware of the restroom attendants' illegal activities. In addition to selling illegal drugs, the restroom attendants handed out towels to club patrons and offered for sale personal toiletry items at tables maintained within the restroom. For a club patron to have money to purchase such items or tip the attendant would be reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order dismissing the Emergency Order of Suspension. DONE AND ENTERED this 23rd day of July, 1997, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July 1997. COPIES FURNISHED: Miguel Oxamendi, Senior Attorney Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Louis J. Terminello, Esquire Chadroff, Terminello & Terminello 2700 Southwest 37th Avenue Miami, Florida 33133-2728 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license no. 16-637 S, Series 4-COP, be revoked for multiple violations of the Beverage Law. DONE and ENTERED this 5th day of August, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1983.
The Issue This is a case in which the Petitioner seeks to suspend, revoke, and/or take other disciplinary action against the Respondent's alcoholic beverage license. The primary grounds for the proposed disciplinary action are that the licensee has permitted patrons on the licensed premises to sell cocaine on numerous occasions in violation of various statutory provisions. The specific allegations are set forth in a Notice To Show Cause dated February 27, 1989. An Emergency Order Of Suspension was served on the Respondent on February 27, 1989. The Respondent requested an emergency hearing, which was conducted on March 7, 1989. Both parties offered evidence at the hearing. Following the hearing the parties requested and were allowed until March 17, 1989, within which to file their proposed recommended orders. The Petitioner filed a timely proposed recommended order. The Respondent has not filed any post-hearing documents. The proposed findings of fact submitted by the Petitioner are specifically addressed in the appendix to this recommended order.
Findings Of Fact Based on the stipulations of the parties and on the evidence received at the final hearing, I make the following findings of fact: The Respondent, Ocean Drive Hotel Corporation, d/b/a/ Ocean Haven Restaurant, is the holder of Alcoholic Beverage License Number 23-3568, Series 2-COP, for a licensed premises known as Ocean Haven Restaurant, which is located at 155 Ocean Drive, Miami Beach, Dade County, Florida. The licensed premises are located in a neighborhood which is somewhat less than wholesome; a neighborhood in which there is a substantial amount of illegal drug related activity. It is a neighborhood in which it is not uncommon for police officers to observe people who have been previously arrested for drug violations. The Respondent corporation owns the licensed premises, as well as the hotel premises of which the licensed premises are a part. The Respondent corporation is owned by Mr. Heriberto Velasco. Mr. Velasco is the president of the Respondent corporation and he is the manager of both the hotel and the restaurant businesses. Mr. Velasco lives in the hotel with his wife, his mother, and one of his sons. Mr. Velasco takes most of his meals in the restaurant which comprises the licensed premises, and usually visits the licensed premises at least three times a day for that purpose. There is no evidence that he regularly spends any other time supervising activities in the restaurant. There are four employees in the restaurant that comprises the licensed premises. Two of those employees are Gloria E. Berlioz and Antonia Rodriguez de Alcina. The latter is also known by the name of Nora. Ms. Berlioz and Ms. Alcina have both been employees on the licensed premises for a year or two. Ms. Alcina is employed as a waitress. Ms. Berlioz is employed as a cook. During the course of an undercover investigation during the months of January and February of 1989, the following transactions involving controlled substances took place within the licensed premises: On January 10, 1989, a patron known as Loraine sold cocaine to Investigator Huguet. On January 18, 1989, a patron named Roberto Cantero sold cocaine to Investigator Huguet. On January 19, 1989, an unknown white Latin male patron sold cocaine to a patron named Tommy. On January 25, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. On January 26, 1989, an unknown Latin male patron sold cocaine to Investigator Huguet. On February 6, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. On February 7, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. On February 10, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet in two separate transactions. On February 10, 1989, a patron named Roberto Cantero also sold cocaine to Investigator Lerra. On February 17, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet, in two separate transactions. On February 17, 1989, a patron named Roberto Cantero also delivered cocaine to an unknown white male patron. On February 22, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. During the course of the vast majority of the drug transactions described in the preceding paragraph, the people involved in the transactions discussed the subject of drug transactions in normal conversational tones of voice. During the majority of those conversations, either Ms. Berlioz or Ms. Alcina was standing close enough to have heard the conversations. During some of the conversations, Ms. Berlioz or Ms. Alcina was standing immediately on the other side of the lunch counter, within two or three feet from the conversations. During the course of the vast majority of the drug transactions described in Paragraph 5, above, the drugs involved in the transactions were openly displayed on the table top or on the counter top in front of the participants to the transactions. In each of the transactions involving purchases by Investigator Huguet, the investigator attempted to be obvious about what he was doing by holding the drugs in front of his face to inspect them before putting the drugs in his pocket. During the vast majority of those transactions, Ms. Berlioz or Ms. Alcina was standing close enough to have observed the transactions. During some of the transactions, Ms. Berlioz or Ms. Alcina was standing immediately on the other side of the lunch counter within two or three feet from the drug transactions. One of the drug transactions took place while Mr. Heriberto Velasco was standing several feet away. All of the drug transactions described in Paragraph 5, above, took place within the licensed premises during business hours when employees and patrons were present on the licensed premises. None of the employees ever called the police or asked any of the parties to the drug transactions to leave the licensed premises. Mr. Heriberto Velasco was aware that the licensed premises are located in a neighborhood in which there is a high level of illegal drug activity. Nevertheless, he did not take any special precautions to prevent or detect drug activity on the licensed premises other than to tell the employees to let him know if they saw any drug activity. Mr. Heriberto Velasco has never asked the Division of Alcoholic Beverages and Tobacco for assistance or suggestions with respect to preventing or eliminating drug activity on the licensed premises, even though the Division of Alcoholic Beverages and Tobacco advises all licensees of the availability of such assistance. Mr. Heriberto Velasco did not have actual knowledge that drug transactions were taking place on the licensed premises. He is opposed to drug trafficking and he has not knowingly permitted sales of drugs in his hotel or on the licensed premises. He has instructed his employees in the hotel and in the restaurant to call him if they observe any drug related activity so that he can throw out anyone involved in such activity. He has thrown people out of the hotel when he suspected they were involved in drug related activities. The employees in the licensed premises never told him about any drug related activity on the premises. Mr. Velasco never observed any activity on the licensed premises that he thought was drug related activity. Mr. Velasco does not know what crack cocaine looks like. Mr. Eric Velasco is the 20-year-old son of Mr. Heriberto Velasco. The son lives at the hotel with his parents and helps with the management of the hotel and restaurant to the extent he can between going to college and working at another near-by job. Mr. Eric Velasco has never observed any activity in the licensed premises that appeared to him to be drug related activity. He does not know what crack cocaine looks like. In brief summary, the vast majority of the drug transactions described in Paragraph 5, above, took place in plain view within the licensed premises. The open exchanges of drugs and money in conjunction with the open conversations about drug transactions demonstrate a persistent pattern of open and flagrant drug activity. The subject drug transactions were sufficiently open that they would have been noticed by a reasonably diligent licensee.
Recommendation On the basis of all of the foregoing, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a final order in this case revoking the Respondent's alcoholic beverage license number 23-3568, series 2-COP, for the premises located at 155 Ocean Drive, Miami Beach, Dade County, Florida. DONE AND ENTERED this 19th day of April, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH 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 April, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1096 The following are my specific rulings on all of the proposed findings of fact submitted by all parties. Findings proposed by Petitioner Paragraph 1: Accepted. Paragraph 2: Rejected as subordinate and unnecessary details. Paragraph 3: Rejected as constituting subordinate and unnecessary details. Further, some details proposed in this paragraph are not supported by clear and convincing evidence. Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19: Accepted in substance, with many subordinate and unnecessary details omitted. Paragraph 20: Rejected as irrelevant. Paragraph 21: Accepted in substance. Findings proposed by Respondent (None) COPIES FURNISHED: Katherine A. Emrich, Esquire Assistant General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Gino P. Negretti, Esquire 44 West Flagler Street Miami, Florida 33130 Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact The Hearing Officer finds the following facts: Respondent is the holder of Beverage License No. 26-957,2-COP and the licensed premises encompass the bar known as "The Harem". Sergeant Thomas R. Genest, a Jacksonville Police Officer, went in The Harem on November 1, 1974. Upon entering he saw Georgiann Smith and Annie Pearl Williams, both of whom worked as topless dancers in The Harem and were at that time dressed as topless dancers. At the time Sergeant Genest entered the bar Smith was dancing topless at the bar between the legs of a male patron simulating intercourse with the patron. Williams was similarly dancing topless between the legs of a male patron, simulating intercourse and allowing the patron to place his hands on her buttocks and thighs. Sergeant Genest had no independent recollection of Virginia Lou Roberts or any acts in which she might have been engaged on November 1, 1974, in The Harem. On March 6, 1975, Detective H. R. Hall of the Jacksonville Sheriff's Office Vice Squad, was working The Harem undercover. While in The Harem he saw Maria Jenkins, Essie Mae Parks and Gaynell Moore, who were dressed as topless dancers and working as topless dancers in the bar. Jenkins was dancing topless between the legs of a male patron and rubbing her body against him as she danced. Parks was dancing topless between the legs of a male patron, who had his hands on her buttocks as she rubbed her vagina against his mid-section. Moore was dancing topless between the legs of a male patron who had his hands on her buttocks as she rubbed her vagina against his mid-section. At all times pertinent to this proceeding Georgiann Smith, Annie Pearl Williams, Maria Jenkins, Essie May Parks and Gaynell Moore were agents, servants or employees of the licensee.
Findings Of Fact The Respondent, Inside Entertainment, Inc., which trades under the name of Fox Hunter, is the holder of beverage license No. 58-770, Series 2-COP. This license allows the consumption of alcoholic beverages on the premises, located at 1718 South Orange Avenue, Orlando, Florida. The petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida which has as its responsibility the licensure and regulation of beverage license holders in the State of Florida. On November 15, 1979 , Beverage Officer W. R. Wiggs entered the licensed premises of Fox Hunter to investigate alleged Beverage Law violations. He was approached by Linda Kay Fardette who offered to give him a "lap dance," which he accepted. To perform the "lap dance," Ms. Fardette straddled Officer Wiggs' lap, rubbing her pubic area against his genitals in a series of gyrations performed during the playing of a musical recording. She wore a bikini bottom, however, her breasts were bare and made contact with Wiggs during the "lap dance." Ms. Fardette offered a second "lap dance" to Officer Wiggs which he also accepted. She asked and received three dollars for each of the two "lap dances." During these "lap dances," Officer Wiggs became sexually aroused, obtaining penile erection. (Count 3). Officer Wiggs observed Ms. Fardette move to the stage to perform a dance routine announced over the public address system. During this dance, Ms. Fardette removed all her clothes and exposed her vagina to patrons in the audience. She ran her finger through the lips of her vagina while so exposing herself. (Count 1). Officer Wiggs was approached by Brenda Macy Janciak, who offered him a "lap dance." He accepted and paid three dollars for each of two "lap dances." The motions, upper body nudity and contact were similar to that of Linda Kay Fardette, detailed above. Officer Wiggs was sexually aroused during the "lap dances," obtaining penile erection. (Count 4). Officer Wiggs observed Ms. Janciak move to the stage upon introduction over the public address system. During the dance routine, Ms. Janciak removed all her clothes and exposed her vagina to patrons in the audience. She ran her finger through the lips of her vagina while so exposing herself. (Count 2). On November 15, 1979, Beverage Officer J. E. Kiker, Jr. entered the licensed premises of Fox Hunter to investigate alleged Beverage Law violations. He observed Bonnie Joy Sawyer onstage, where she was introduced by a mistress of ceremonies. Her dance involved complete nudity. At one point, Ms. Sawyer spread her legs, exposing her anal-vaginal area, which she illuminated with a cigarette lighter. The dance also involved rubbing her pubic area with her hand and moving her hips in an undulating fashion. (Count 5). Office Kiker observed Leah Damaris Wilson perform a similar dance onstage. Again, this dance involved total nudity, exposure of her anal-vaginal area and illumination of this area with a cigarette lighter. (Count 6). Officer Kiker observed Wendy Kay Knight perform a nude dance. She was introduced by the mistress of ceremonies, disrobed during the dance sequence, exposed her vagina and rubbed her pubic area during the dance. (Count 9). Wendy Kay Knight also performed a "lap dance" with Officer Kiker for a five-dollar charge. The "lap dance" was performed as described above and involved the rubbing of Ms. Knight's pubic area against Officer Kiker's genitals. Her breasts were bare and made contact with his person. Officer Kiker became sexually aroused during the "lap dance," obtaining penile erection. (Count 14). Officer Kiker observed a woman known as "Marlene," who was dancing onstage. She approached him and offered to perform a "lap dance" for a charge of five dollars. The "lap dance" was performed as described above, with "Marlene" rubbing her pubic area against Officer Kiker's genitals. Her nude breasts made contact with him during this dance. Officer Kiker became sexually aroused during the dance, obtaining penile erection. (Count 15). On November 19, 1979, Beverage Officer M. L. Imperial entered the licensed premises of Fox Hunter to investigate alleged Beverage Law violations. He observed a woman known as "Nina" on the stage. She disrobed onstage and was totally nude during a portion of the dance. During this routine, she bent over, exposing her vaginal and anal openings to the audience and running her finger through the lips of her vagina. (Count 7). Officer Imperial observed a woman known as "April" dance onstage while completely nude. She performed essentially the same gestures as "Nina," bending over so as to expose her anal and vaginal openings and running her finger through the lips of her vagina. (Count 8) Officer Imperial observed Darlene Helen Poulliot dance onstage partially nude. She performed a dance routine similar to that of "April" and "Nina," hut did not remove the bottom of her bikini costume. (Count 10). Officer Imperial observed a woman known as "Sunny" dancing while completely nude. She spread the lips of her vagina and used a cigarette lighter to illuminate this orifice. She also ran her finger through her vaginal lips. (Count 12). Officer Imperial was approached on separate occasions by Bonny Joy Sawyer and Leah Damaris Wilson, who each offered him "lap dances." He accepted one "lap dance" from Ms. Sawyer and two from Ms. Wilson, paying five dollars for each "lap dance." The women straddled Officer Imperial, rubbing their pubic areas against his genitals and performing a series of gyrations. The women wore only bikini bottoms and had breasts exposed during the "lap dance." Officer Imperial did not become sexually aroused. (Counts 16 and 17). The Respondent stipulated to the fact that the stage dancers received tips from patrons and did not contest that the above named dancers were employees or agents of the licensee. Neither did Respondent deny that the stage dancing and "lap dancing" were within the scope of their employment. Respondent takes the position that nude dancing is generally tolerated in the Orlando area and that "lap dances" do not constitute sexual behavior as Petitioner asserts. Respondent presented, as an expert witness, an associate professor of psychology at the University of Central Florida. The witness holds a doctorate in psychology and teaches courses in human sexuality. This testimony established that nude dancing and "lap dancing" are typical in the so-called adult entertainment field. While he did not deny the sexual connotations of these dances, he established that fantasies play a part in the arousal of male patrons. In this regard, Respondent also presented a lay witness who frequents topless bars and who has not been aroused by "lap dances."
Recommendation Based on the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violating Section 800.03, Florida Statutes (1979), as charged in Counts 1, 2, 5, 6, 7, 8, 9 and 12 of the Notice to Show Cause/Administrative Complaint. It is further RECOMMENDED that all other charges alleging violation of Section 800.03, Florida Statutes (1979), be dismissed. It is further RECOMMENDED that all charges alleging violation of Section 877.03, Florida Statutes (1979), be dismissed. It is further RECOMMENDED that Respondent, Inside Entertainment, Inc., d/b/a Fox Hunter, be fined $1,000. RECOMMENDED this 5th day of February, 1981, in Tallahassee, Leon County, 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 5th day of February, 1981. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard L. Wilson, Esquire Metcalf Building, Suite 909 100 South Orange Avenue Orlando, Florida 32801
