The Issue This case was presented through a Notice to Show Cause/Administrative Complaint filed by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, against the Respondent, Norma D. Kettering, t/a Fancy Dancer, in which the requested relief is for the imposition of civil penalty, suspension or revocation of the beverage license allegedly held by Norma D. Kettering. The Notice to Show Cause/Administrative Complaint contains the following accusations: "1. On or about the 27th of March, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit "JOHN DOE" on your licensed premises, a public place, did unlawfully sell or deliver, or possess with intent to sell, or deliver, a controlled substance to wit; METHAQUALONE to one Robert R. Jones, Beverage Officer, for the sum of $3.50 each, U.S. Currency, contrary to F.S. 561.29 to wit F.S. 893.13. On or about the 27th of March, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; DEBORAH MARIE ALTIZER, a/k/a "GINGER", dancer, on your licensed premises, a public place, did unlawfully sell or deliver or possess with intent to sell or deliver a controlled substance to wit; METHAQUALONE, to one ROBERT R. JONES, Beverage Officer, for the sum of $3.50 each, U.S. Currency, contrary to F.S. 561.29 to wit; F.S. 893.13. On or about the 27th of March, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; TAMMIE R. FRANCIS, a/k/a "RINA", dancer, on your licensed premises, a public place, did unlawfully offer to commit an act of prostitution, by giving her body for sexual intercourse to one ROBERT R. JONES, Beverage Officer, for the sum of $50.00 U.S. Currency, contrary to F.S. 561.29 to wit; F.S. 796.07(3) (A). On or about the 9th of April, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit KATHY JEANETTE BROWN, a/k/a "KATHY", dancer, on your licensed premises, a public place, did unlawfully offer to commit an act of prostitution, by giving her body for sexual intercourse to one C. E. LLOYD, Beverage Officer, for the sum of $100.00, U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3) (A). On or about the 9th of April, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; KATHY JEANETTE BROWN, a/k/a "KATHY", dancer, on your licensed premises, a public place, did unlawfully offer to commit an act of prostitution, by giving her body for sexual intercourse to one C. E. LLOYD, Beverage Officer, for the sum of $100.00 U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3) (A). On or about the 12th of April, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; "CINNAMON", dancer, did unlawfully offer to commit an act of prostitution on your licensed premises, a public place, by giving her body for sexual intercourse to one B.A. WATTS, JR., Beverage Officer, for the sum of $20.00 U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3)(A). On or about the 12th of April, 1980, you NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; TAMMIE R. FRANCIS a/k/a "RINA", dancer, did unlawfully offer to commit an act of prostitution on your licensed premises, a public place, by giving her body for sexual intercourse to one M. L. IMPERIAL, Beverage Officer, for the sum of $50.00 U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3) (A). On or about the 13th of April, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; "TAMMY", dancer, did unlawfully offer to commit an act of prostitution on your licensed premises, a public place, by giving her body for sexual intercourse to one B.A. WATTS, JR., Beverage Officer, for the sum of $75.00, U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3)(A). On or about the 13th of April, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; "LICORICE", dancer, did unlawfully offer to commit an act of prostitution on your licensed premises, a public place by giving her body for sexual intercourse to one M. L. IMPERIAL, Beverage Officer, for the sum of $75.00 U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3)(A). On or about the 13th of April, 1980, you NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; DEBORAH MARIE ALTIZER, a/k/a "GINGER", dancer, did unlawfully sell or deliver, or possess with intent to sell or deliver on your licensed premises, a public place, a controlled substance to wit; METHAQUALONE to one ROBERT R. JONES, Beverage Officer, for the sum of $4.00 each, U.S. Currency, contrary to FS. 561.29 to wit F.S. 893.13."
Findings Of Fact The Petitioner has complained against the named Respondent pursuant to those accusations as set forth in the issues statement of this Recommended Order. The Respondent requested a formal hearing to be conducted in accordance with the provisions of Subsection 120.57(1), Florida Statues, and although the Respondent did not attend the hearing, the Respondent having requested the hearing, the Petitioner's case was presented. The Petitioner in this cause, State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida which has its responsibility the licensure and regulation of the several beverage license holders in the State of Florida. Norma D. Kettering, who trades under the name of Fancy Dancer, is the holder of License No. 69-293, Series 2-COP, which allows for the consumption of alcoholic beverages on the premises. The license is for a premises at Highways 17 and 92, Fern Park, Florida. The facts reveal that Beverage Officer Robert R. Jones went to the licensed premises on March 27, 1980, to investigate alleged Beverage Law violations. Those violations dealt with offers by the agents, servants or employees of the licensee to commit acts of prostitution. Once inside the premises, Officer Jones was approached by a dancer in the premises whose stage name is "Ginger", who commented to Officer Jones that she was loaded on "Quaaludes". (The word "Quaalude" refers to the substance Methaqualone.) Officer Jones asked "Ginger" if she knew where he could get "Quaaludes". In response to this request, "Ginger" left the officer and went to an unknown white male who was seated in a chair in the establishment. He took two Methaqualones from his person and gave them to "Ginger", who in turn gave them to Officer Jones in return for money. On that same date, March 27, 1980, "Ginger" was seen to dance for the patrons while attired In a "G" string costume. She danced both on the main stage and in the area of the audience and was seen to receive money in exchange for her dancing. She was also referred to by the master of ceremonies as "Ginger". On March 27, 1980, Officer Jones was additionally approached by another dancer known as "Rina" who had been referred to by that name by the master of ceremonies who was announcing appearance of the dancers who were dancing on the main stage in the licensed premises. "Rina" then asked Jones if he wanted a "fuck." She explained to the officer that it would cost him $50.00; and that he would have to get rid of Beverage Officer Blanton, who was with Jones at the time. "Rina" also stated that she would "go more than once if she liked the first time". This conversation took place in the licensed promises. On April 13, 1980, Officer Robert R. Jones returned to the licensed premises and encountered the dancer, "Ginger" and paid her $4.00 each for two Methaqualone which she obtained after going to the dancers' dressing room in the licensed premises and returning to Officer Jones. On that date, "Ginger" was still performing as a dancer in the licensed premises. Beverage Officer C. E. Lloyd went to the licensed premises on April 9, 1980, as part of the investigation. While in the licensed premises, he was approached by a dancer, Kathy Brown, whose stage name is "Kathy", who asked Officer Lloyd if she could dance for him. He agreed to allow her to "lap dance". Beverage Officer Lloyd paid "Kathy" $5.00 for a "lap dance" she performed. This is a form of dance where the female dancer sits on the lap of the male patron and goes through a series of gyrations while a record is played. Officer Lloyd asked Brown what would happen when she "got things started". Brown stated that she could take care of everything for him after she got off from work for a price of $100.00. He asked her what that meant and she replied she could "give you a fuck for $100.00". After this conversation, dancer Brown was called by the master of ceremonies to dance for the benefit of those patrons in the licensed premises and she danced on the stage. She was wearing a bikini-type costume. The conversation between Lloyd and Brown was overheard by Beverage Officer James A. Jones, Jr., who was with Lloyd on the date in question. She told Jones that he could drive Lloyd and her in the car while she serviced Lloyd and then she said she would "fuck" Jones, also for $100.00. Lloyd and Jones left the licensed premises and Brown followed them and upon entering the officers' vehicle, Brown was arrested for offering to commit prostitution. On April 12, 1980, Beverage Officer Bethel Watts, Jr., was dispatched to the licensed premises to continue the investigation. While in the licensed premises on that date, he was approached by a female dancer whom he had seen perform on the stage as a dancer while wearing only a "G" string. This dancer had been referred to as "Cinnamon", with that reference being made by the master of ceremonies in the licensed premises. "Cinnamon" asked the Respondent if he wanted a "lap dance". He replied, "Yes" and the dancer sat on his lap and squirmed around for the duration of one record. The dancer then told Officer Watts that she could "give you anything you want right here." He stated that he could not afford it and she asked if he had $20.00. She further stated that she could, "give him a 'quickie'". The dancer then went back to the stage area. Officer Watts paid the dancer "Cinnamon" $3.00 for the "lap dance". Officer Watts had gone to the licensed premises on April 12, 1980, with another Beverage Officer, Michael Lee Imperial. On that same date, a dancer who had been performing in the licensed premises who was known as "Rina" approached Officer Imperial and asked if he would like her to "lap dance". He agreed and she sat on his lap and performed the "dance" through three different records for a price of $5.00 each, a total price of $15.00. He asked the dancer if she did anything other than dance, to which she asked if he were a policeman, and he answered, "no". "Rina" then patted down the Beverage Officer to check to see if he were carrying any form of police identification. She then stated that she got off at 1:30 a.m. and would come by his room. She asked the Beverage Officer how much he could afford and he said "$50.00" and she indicated that she would give him "anything and everything he wanted" for the $50.00. Officers Watts and Imperial returned to the licensed premises on April 13, 1980. While in the licensed premises, Officer Imperial was approached by a dancer who was known as "Licorice" and she asked if he wanted her to "lap dance". He responded, "Yes" and she "danced" one record for a cost of $5.00. Officer Imperial stated to the dancer that she "sure felt good" and stated that he "bet" she was good in bed. She responded by stating that, "I am" and in turn he stated that he "bet" that, "I'll never find out", to which she responded that he could find out for $75.00. In turn the officer wanted to know what he would get for $75.00 and the dancer said, "You will get whatever you want me to do". Officer Imperial said that he would pick her up at seven o'clock. Nothing further occurred concerning this event. On the same date, April 13, 1980, Officers Watts and Imperial were sitting together and in the course of the conversation which Imperial had with one of the dancers, Imperial turned to Watts and asked Watts if he (Watts) wanted the dancer to get a girl for Watts. After some discussion, the dancer arranged to have another dancer whose stage name was "Tammy" and who had danced in the licensed premises and been referred to by the master of ceremonies by that name was brought and introduced to Officer Watts. (Watts had asked the other dancer to ask "Tammy" if she "would party". The other dancer responded that "Tammy" "would party" but it would cost $75.00.) Watts asked "Tammy" if she "would party" and she responded by saying that for $75.00 she would do anything that he wanted up to two hours, at which point she had an appointment in the licensed premises. The conversation terminated at the point when Watts stated that he would pick up a bottle of whiskey.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Counts One (1), Two (2), Three (3), Five (5) and Ten (10) of the Notice to Show Cause/Administrative Complaint be DISMISSED and that the Respondent not be held for further answer. It is FURTHER RECOMMENDED that the license held by the Respondent, Norma D. Kettering, No. 69-293, Series 2-COP, be REVOKED in view of the violations as established through Counts Four (4), Six (6), Seven (7), Eight (8) and Nine (9) in the Notice to Show Cause/Administrative Complaint. DONE AND ENTERED this 3rd day of October, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Norma D. Kettering, t/a Fancy Dancer 236 Highways 17 & 92 Fern Park, Florida
The Issue The issue is whether the City of Gainesville ("City") properly issued an Underage Prohibition Order to Petitioner, Clark DP Investments, Inc., d/b/a The Bank Bar and Lounge ("The Bank") pursuant to section 4-53, Gainesville Code of Ordinances.
Findings Of Fact The City is a municipal corporation organized under the laws of the State of Florida. In 2009, the City adopted Chapter 4, Article III of the Gainesville Code of Ordinances, titled "Underage Prohibition in Alcoholic Beverage Establishments," referenced herein as the "Ordinance." The Bank is an alcoholic beverage establishment as defined in section 4-51 of the Ordinance and is located within the city limits of the City. The Bank's address is 22 West University Avenue, Gainesville, Florida. Section 4-51 of the Ordinance defines "underage drinking incident" as follows: Underage drinking incident means any physical arrest or notice to appear (NTA) issued for possession or consumption of an alcoholic beverage by a person under the age of 21 which results in an adjudication of guilt, finding of guilt with adjudication withheld, waiver of right to contest the violation, plea of no contest including, but not limited to, payment of fine or civil penalty, or entering into an agreement for deferred prosecution. Section 4-51 of the Ordinance defines "underage prohibition order" as "an order issued by the city manager or designee which prohibits an alcoholic beverage establishment as herein defined from admitting patrons under the age of 21 into such establishment during specified times." Section 4-53 of the Ordinance provides that an alcoholic beverage establishment will be issued an underage prohibition order if a certain number of underage drinking incidents have occurred at the establishment during a given calendar quarter. For alcoholic beverage establishments with an aggregate occupancy load of fewer than 201 persons, the number of underage drinking incidents triggering a prohibition order is five or more in a quarter. For establishments with an aggregate occupancy load of more than 201, the number is ten or more in a quarter. The Bank has an aggregate occupancy load of 207 persons. On September 27, 2012, the City served The Bank with an Underage Prohibition Order (the "Order"). The Order, dated September 25, 2012, was based on 12 underage drinking incidents that occurred at The Bank during the third quarter of 2012. Subsequent to the issuance of the Order, an additional three underage drinking incidents arose. The Bank was given timely notice of these additional incidents on November 21, 2012, and they became part of this case. At the hearing, the City demonstrated that GPD officers made 15 arrests for underage drinking incidents at The Bank during the third quarter of 2012, and that it secured deferred prosecutions or adjudications in all 15 cases. Five GPD officers and a sergeant testified at the hearing as to the particulars of these arrests and as to GPD's general practices in policing underage drinking in downtown Gainesville. The GPD has a specially assigned unit to patrol a downtown area consisting of the square formed by Northwest 3rd Avenue, Southwest 3rd Avenue, Southeast 3rd Street, and Northeast 3rd Street. Officer Justin Torres estimated that there are between 20 and 30 alcoholic beverage establishments in the roughly one-square-mile downtown area. The downtown unit performs patrols for underage drinking in bars on Thursdays, Fridays and Saturdays from 4 p.m. until 4 a.m., and every other Wednesday from 7 p.m. until 3 a.m. Between three and four officers from the unit perform these patrols on a given night. The officers are in uniform as they make the rounds of the bars in the downtown area. They are given no particular assignment as to which bars they enter or what time they should go to a particular establishment. They try to cover all of the downtown bars without emphasizing any particular one. Officer Marquitta Brown testified that she would enter The Bank twice a night at most. None of the testifying officers was given any special training by GPD as to spotting underage drinkers or fake identification. They learned to scrutinize IDs through their general experience on the police force and especially by working with officers who were experienced members of the downtown unit.1/ Officers volunteer to serve in the downtown unit, and rotate off the unit after serving about one year. The testifying officers all stated that, when looking for underage drinking, they look for suspicious behavior rather than youthful appearance. They do not simply walk into a bar and start checking patrons' IDs. The typical scenario involves the officer walking through the bar. The suspect sees the uniformed officer, and then puts down his drink and walks away from it, or hands the drink to someone standing near him, or simply drops the drink into a trash can. At this point, the officer requires the suspect to produce identification and makes an arrest if the ID proves insufficient. Of the 15 arrests made in The Bank during the third quarter of 2012, nine were instances in which the underage patron gained entry to the bar by presenting false identification. Upon successfully presenting the false ID to the doorman, the patron would be given an "over 21" wristband that allowed the purchase of alcoholic beverages in The Bank. Persons under 21 were allowed into the bar but were not given a wristband or served alcoholic beverages. Eight of the nine instances of false ID involved the presentation of valid driver's licenses that belonged to other persons who were over the age of 21. In two of the cases, the arresting GPD officer testified that the photo on the driver's license did not look like the suspect. In one case, the officer testified that the false ID did look like the suspect. The record contains no indication as to the resemblance between the suspect and the false identification in the other five instances of the suspect's using another person's valid driver's license.2/ The ninth instance of false ID involved the use of a forged Ohio driver's license bearing the actual photo and identifying information of the underage suspect, but with a false date of birth. The arresting officer, Aaron Steman, testified that he identified the license as a forgery because it was very thick, which indicated to Officer Steman that the card stock used to create the license was thicker than that used by the state of Ohio. Officer Steman testified that he had received no special training in identifying driver's licenses from Ohio, but that his experience had made him familiar with the licenses from approximately 25 states.3/ Three of the 15 arrests involved an underage patron who was wearing an "over 21" wristband. The remaining three involved an underage patron who was not wearing a wristband but was in possession of an alcoholic beverage. The hearsay statements of the underage persons to the officers indicated that in each instance they procured either the wristbands or the drinks from persons over 21 who had obtained them lawfully.4/ None of the arresting officers observed an underage person obtaining an alcoholic beverage from an employee of The Bank. The testifying officers were unable to state how long any of the underage persons had been in possession of the alcoholic beverages. There was no evidence that any employee of The Bank knew that underage patrons were drinking alcohol and failed to act on that knowledge. The arresting officers testified that they had made arrests for underage drinking at other bars in downtown Gainesville. Officer Brown testified that on the great majority of nights she makes at least one arrest in a downtown bar. The officers also testified that there were numerous occasions when they walked on patrol through The Bank without making an arrest. At the time of the hearing, there were no administrative actions filed against The Bank's alcoholic beverage license by the Division of Alcoholic Beverages and Tobacco ("DABT"). Lieutenant Dean Plescia of DABT testified that in his experience, Mr. Clark of The Bank "was doing a pretty decent job" in checking IDs and keeping underage persons from obtaining alcoholic beverages in his establishment. Mr. Clark testified as to The Bank's efforts to deter underage drinking on its premises. Mr. Clark testified that he became the owner of The Bank three years ago but has worked there since it opened in 2001. He had extensive history in the bar and restaurant business prior to joining The Bank. Mr. Clark has done "everything that you can do within the industry." He has been a doorman, a bartender, and a bar manager. He is present at The Bank whenever it is open for business. Mr. Clark handpicks and trains every doorman who works at The Bank. Mr. Clark requires his doormen to be at least 21 years of age. He has hired professionals as doormen, including a former state attorney. Mr. Clark requires prospective doormen to provide job histories and references, and he personally checks the references. New doormen are first put to work roaming the bar looking for underage drinkers, and are only put on the door to check IDs after they are thoroughly oriented. Mr. Clark makes it clear to his doormen and serving staff that they will be fired if they are found to have admitted an underage patron without properly checking for ID or to have served alcoholic beverages to a patron who is underage. Mr. Clark testified that he has fired employees for violating this policy. Mr. Clark trains and instructs his doormen to require photo ID for all patrons. He further instructs the doormen regarding measures to ensure that the ID is valid and belongs to the person who presented it. Mr. Clark's methods are similar to those employed by the GPD officers who testified at the hearing, and are similarly based on years of experience in checking IDs. For example, Mr. Clark has instructed his doormen to check whether the driver's license number matches the patron's birth date. The doorman will match the patron's height and eye color against the information on the driver's license, and examine the photo for features matching those of the patron presenting the card.5/ The Bank has cameras that monitor the door staff and patrons seeking admission. Mr. Clark periodically employs "mystery shoppers" to test the doormen. The mystery shopper will ask the doorman for an "over 21" wristband without checking for ID in exchange for a bribe or as a favor. Mr. Clark testified that to his knowledge the mystery shoppers have never succeeded in gaining entry without proper ID. Mr. Clark testified that even where a patron provides what appears to be a valid ID, his doormen are instructed to inquire further if they have doubts about the patron's age. The doorman will ask the patron to give his birth date and address. If the patron's answer does not match the information on the driver's license, "that's a huge red flag immediately." In these doubtful situations, the doormen will also ask for a second form of ID, preferably one with a photograph. Mr. Clark testified that The Bank has recently stopped admitting international students based on international visas or international passports because of their lack of reliability. GPD officers have informed him that he should require a United States driver's license, military ID, or passport, and he has instituted this practice at The Bank. When a doorman is presented with false ID, he hands it back to the patron and denies him admittance.6/ Mr. Clark testified that on rare occasions he has allowed an underage patron to enter without a wristband if he shows legitimate identification after trying to pass with a false ID. However, the standard instruction to the doormen is to deny admittance on the principle that an underage person who tries to obtain a wristband with a fake ID is likely to try to get alcoholic drinks once he is inside the bar. Mr. Clark assigns as many as seven doormen to roam through the bar and make sure that no patrons without wristbands are in possession of alcoholic beverages. If an underage patron is found with an alcoholic drink, the patron is immediately ejected from the premises. The Bank uses tamper resistant plastic wristbands and changes the color and style of the bands frequently to avoid counterfeits. Mr. Clark purchases the wristbands from a non- local source to decrease the likelihood of duplicating the wristbands of another bar. The wristbands are rotated such that the same one is not used twice in a two-week period. The Bank's staff checks wristbands to make sure that they are not frayed or tampered with, which might indicate that an underage patron obtained the band from a person of lawful age. Mr. Clark reasonably believes that confusion is avoided by The Bank's practice of giving no wristband at all to patrons who are under 21, rather than relying on a system of color-coded wristbands for patrons who are over and under 21. Once a person leaves The Bank, he is not allowed re-entry. Mr. Clark believes that this practice lessens the chances of wristband sharing. The Bank has participated in the responsible hospitality vendor program when it has been offered by GPD. Mr. Clark testified that he and his staff have attended these training sessions on multiple occasions. Mr. Clark testified that he does not believe there are any policies or devices7/ which could improve The Bank’s efforts to identify and deter underage drinkers. He is aware of the methods employed by The Bank's competitors, and opined that none of them is doing more than The Bank to combat underage drinking and that "there are multiple places that are doing a lot less." Mr. Clark testified that he personally examined each of the false identification cards that had been used to obtain entry into The Bank. Mr. Clark believed that in each case the patron closely resembled the photo on the card. This testimony contradicts the GPD officers' testimony that two of the photo IDs did not bear a strong resemblance to the underage drinker. There is no central filing or tracking system for IDs that are confiscated by the GPD. None of the testifying officers had any idea how to recover the IDs or even who might be their custodian. The actual fake IDs were not introduced into evidence, making it impossible to enter a finding as to the diligence of The Bank's doormen regarding the two IDs in question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Underage Prohibition Order issued to The Bank be vacated. DONE AND ENTERED this 28th day of March, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 28th day of March, 2013.
The Issue The issues are as follows: (a) whether Respondent violated Sections 562.11(1) (a) and 561.29 (1) (a), Florida Statutes,1 by selling an alcoholic beverage to Petitioner's undercover investigative aide on November 17, 2006; and (b) if so, what penalty, if any, should be imposed.
Findings Of Fact Respondent holds License No. 16-17678, Series 2 APS. The license authorizes Respondent to sell packaged beer and wine at the licensed premises, which is located at 2088-90 North, University Drive, Sunrise, Florida. Mr. Danastor is the owner of Triunfo Food Market, a relatively small store. He has been licensed to sell at that store for approximately two years. Mr. Danastor has a personal and business rule to ask for identification before selling alcohol. On December 7, 2007, Petitioner performed an undercover random compliance check of Respondent's store while checking 15 other locations to see if the various stores were selling alcoholic beverages to underage patrons. Investigative Aide #0057, acted as Petitioner's underage operative/investigative aide on December 7, 2007. The Investigative Aide #0057, who was born on March 28, 1988, was an 18-year-old female, at the time of the incident. Investigative Aide #0057 entered Triunfo Food Market, Inc., walked straight to the beer cooler and took out a six-pack of Guiness Stout beer. She then walked to the register to purchase the beer. No other customers were in the store at the time. Mr. Danastor assisted Investigative Aide #0057 with her purchase of beer. The aide placed the six-pack of beer on the counter and handed Mr. Danastor the money to pay for it. Mr. Danastor accepted the money, selling the aide the beer. Mr. Danastor did not ask the aide's age or check her identification. Mr. Danastor placed the beer in the bag and gave it to the aide. After the purchase, the Investigative Aide exited the store and gave the six-pack of beer to Petitioner's agent, who had witnessed the transaction in the store from outside. Petitioner's agents entered the store and spoke with Mr. Danastor. The agents informed Mr. Danastor of the underage sale and provided him a Notice to Appear. Mr. Danastor told the agents, "I am sorry. I didn't know the purchase was alcohol."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding Respondent to have committed one violation of Subsection 562.11(1)(a), Florida Statutes, and imposing an administrative penalty of a seven-day suspension of Respondent's license and a $1,000.00 fine. DONE AND ENTERED this 2nd day of April, 2008, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 2nd day of April, 2008.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, revoke alcoholic beverage license number 23-1341, Series 2-COP, held by Maritza Garcia, d/b/a Maritza's Pub. RECOMMENDED this 23rd day of May, 1985 in Tallahassee, Florida. Hearings 1550 Hearings J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 FILED with the Clerk of the Division of Administrative this 23rd day of May, 1985.
The Issue Whether or not on or about the 9th day of January, 1976, on the Respondent's licensed premises, located at 1080 Cassat Avenue, Jacksonville, Florida, the Respondent, its agent, servant, or employee, one Yvonne Claudette Lanier, did unlawfully engage in open and gross lewd and lascivious behavior with a male customer, one Thomas Royal Ford, while dancing in a topless manner while rubbing her buttocks on his groin area and placing her breasts in his mouth, in violation of Section 798.02, F.S., thereby violating Section 651.29, F.S. Whether or not on or about the 9th day of January, 1976, on the Respondent's licensed premises located at 1080 Cassat Avenue, Jacksonville, Florida, the Respondent, its agent, servant, or employee, one Olivia Diana Austin, did unlawfully engage in open and gross lewd and lascivious behavior with a male customer, by dancing in a topless manner while rubbing her buttocks on his groin area and allowing him to rub his hands all over her body and fondle her breasts, in violation of Section 798.02, F.S., thereby violating Section 561.29, F.S. Whether or not on or about the 9th day of January, 1976, on the Respondent's licensed premises located at 1080 Cassat Avenue, Jacksonville, Florida, the Respondent, its agent, servant or employee, one Sharon Brannon Kwasniewski, did unlawfully engage in open and gross lewd and lascivious behavior with a male customer by dancing in a topless manner while rubbing her legs on the inside of his legs, in violation of Section 798.02, F.S., thereby violating Section 561.29, F.S. There was within this Notice to Show Cause a Count No. 5, which was not considered at this hearing due to insufficient notice being given to the Respondent. Further consideration of this count may be made at a future date. Whether or not on or about the 25th day of March, 1976, on the Respondent's licensed premises located at 1080 Cassat Avenue, Jacksonville, Florida, the Respondent, its agent, servant or employee, one Doris Resnell Edwards, did unlawfully engage in open and gross lewd and lascivious behavior with a male customer, one Oral Rudolph Richardson, by dancing in a topless manner while allowing him to fondle her breasts and buttocks, in violation of Section 798.02, F.S. thereby violating Section 561.29, F.S. Whether or not on or about the 25th day of March, 1976, on the Respondent's licensed premises located at 1080 Cassat Avenue, Jacksonville, Florida, the Respondent, its agent, servant or employee, one Doris Resnell Edwards, did unlawfully engage in open and gross lewd and lascivious behavior while dancing for a male customer, one Douglas Steven Winterbourne, by dancing in a topless manner while rubbing her legs on his groin area and allowing him to fondle her breasts, thighs, and vaginal area, in violation of Section 798.02, F.S. thereby violating Section 561.29, F.S. Whether or not on or about the 25th day of March, 1976, on the Respondent's licensed premises, located at 1080 Cassat Avenue, Jacksonville, Florida the Respondent, his agent, servant or employee, one Rexie Maria Regester, did unlawfully engage in open and gross lewd and lascivious behavior with a male customer, one Douglas Steven Winterbourne, by dancing in a topless manner while rubbing her vaginal area on his legs and allowing him to kiss and fondle her breasts and rub her vaginal area, in violation of Section 798.02, F.S., thereby violating Section 561.29, F.S. Whether or not on or about the 25th day of March, 1976, on the Respondent's licensed premises, located at 1080 Cassat Avenue, Jacksonville, Florida the Respondent, his agent, servant or employee, one Bridgette Dian Strickland, did unlawfully engage in open and gross lewd and lascivious behavior with a male customer, one B. W. Hodges of the Jacksonville Sheriff's Office, by dancing in a topless manner while rubbing her legs on the inside of his legs and groin area and sticking her breasts in his face, in violation of Section 798.02, F.S. thereby violating Section 561.29, F.S. Count No. 10 of the amended Notice to Show Cause was dismissed at the commencement of the hearing.
Findings Of Fact At all times material to the allegations found in the amended Notice to Show Cause the Respondent, G and B of Jacksonville, Inc., trading as Out of Sight, located at 1080 Cassat Avenue, Jacksonville, Florida, was licensed under License No. 26-449, Series 4COP held with the State of Florida, Division of Beverage. On January 9, 1976, at around 3:00 p.m., Yvonne Claudette Lanier was dancing in the subject licensed premises. She was clothed in a two piece bikini type outfit in which the top part of the costume was open in the front. The dancing was specifically directed to the attention of a male customer, Thomas Royal Ford, who was seated against one of the walls. During the course of this particular dance, which took place over the duration of a single song, Ms. Lanier rubbed her buttocks on the area of Mr. Ford's groin and, in the course of the dance, caused her breasts to be placed in the mouth of this patron while leaning over him. Those persons in the bar who appeared to be employees of the bar took no action to stop this incident. On the same date, to wit, January 9, 1976, at around 3:00 p.m., Olivia Diana Austin was dancing in the subject licensed premises. She was clothed in bikini styled bottoms with her breasts exposed. While dancing for a male customer, she rubbed her buttocks on his groin area and allowed a male customer to fondle her with his hands around her hips and waist, thighs, navel and breasts. When Ms. Austin was rubbing her buttocks on the groin area of the male customer, she was doing so by gyrating her buttocks in a circular motion. Again, those persons who appeared to be employees of the licensed premises took no action to stop Ms. Austin from the course of conduct with the unidentified male customer and Ms. Austin took no steps to prevent the male customer from touching her. On the same day, January 9, 1976, at around 3:00 p.m. in the subject licensed premises, Sharon Brannon Kwasniewski was dancing. She was dancing in what was described as a topless state and the bottom part of her costume was a go-go outfit. While dancing, she directed her attention to a white male customer and stood between his legs while he was seated and caused her crotch area to be rubbed against his crotch area during the course of the dance. The patron did not attempt to stop her from this course of conduct and a female bartender in the licensed premises made no attempt to stop this course of conduct. During the course of this dancing, Ms. Kwasniewski also rubbed her legs in a vertical motion in the area of the patron's crotch. The number of customers in the bar on January 9, 1976 at the time the aforementioned conduct took place was moderate. On March 25, 1976 in the above described licensed premises, one Doris Resnell Edwards was dancing. She was dressed in bikini type pants and some form of top. As a part of her dancing, she addressed her attention to a customer, one Oral Rudolph Richardson. While dancing about Mr. Richardson, Ms. Edwards allowed Mr. Richardson to fondle her breasts by rubbing her breasts in his face and allowing him to place her breasts in his mouth. In addition, she allowed Mr. Richardson to fondle her buttocks with his hands, and she made no effort to stop his attention. The same Doris Resnell Edwards danced for a customer names Douglas Steven Winterbourne on March 25, 1976. This dancing took place after a conversation between Winterbourne and Edwards in which she asked Winterbourne if she could dance for him and he agreed, if he did not have to pay for the dance. In the course of the dance, she was in a topless state and while dancing, she stood between his legs and rubbed her legs against his legs and while the dance was proceeding, allowed him to fondle her thighs. One of the other dancers in the licensed premises on March 25, 1976 was Rexie Maria Regester. She danced one tune for Winterbourne after a conversation in which he agreed to pay her to do the dance. Winterbourne said he paid because this was the custom in the licensed premises to pay the dancers. The dance was while Regester was in a topless state and, in the course of the dance, she rubbed her vaginal area on Winterbourne's legs and allowed him to fondle her breasts while rubbing her breasts in his face. Regester was wearing clothing on the bottom half of her body. On March 25, 1976, an officer of the Jacksonville Sheriff's office was in the licensed premises. While in the bar and seated at one of the tables, Officer Hodges was approached by one of the dancers, Bridgette Diane Strickland. She asked him if he would like her to dance for him and indicated that she would charge him $3.00 to dance clothed and $5.00 to allow him to touch her body all over. He indicated that he would pay her $5.00 and paid her that amount of money. She danced for him and rubbed the inside of his legs with her legs and rubbed his groin area with her leg. She also placed her breasts in his face. Officer Hodges did not encourage the conduct of this dancer. During the course of the dances which have been indicated to have occurred on March 25, 1976, there was a female bartender in the licensed premises, and this employee made no attempt to stop any of the aforementioned course of conduct. No other persons attempted to stop the course of conduct described.
Recommendation It is recommended that the license of the Respondent, G and B of Jacksonville, Inc., trading as Out of Sight, license no. 76-449 be suspended for a period of 30 days. DONE AND ORDERED this 18th day of April, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Tunnicliff, Esquire Division of Beverage Department of Business Regulation The Johns Building 725 Bronough Street Tallahassee, Florida 32304 Harry Katz, Jr., Esquire 337 E. Forsyth Street Jacksonville, Florida 32202
The Issue Should Respondent's alcoholic beverage license, number 61-00005, 2-COP be revoked, suspended or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: DABT is the division within the Department of Business and Professional Regulation charged with the responsibility of administering and enforcing the Beverage Law of the State of Florida. At all times material to this proceeding, Respondent held a series 2- COP alcoholic beverage license, number 61-00005, authorizing the Respondent to sell only beer and wine on the premises of East Side Tavern (Tavern), located on Cummer Road, 1 mile east of Highway 301, Lacoochee, Pasco County, Florida. Around 12:30 a.m. on May 16, 1994, Special Agents Ashley Murray and Keith B. Hamilton went to the Tavern in an undercover capacity. This undercover activity was initiated due to a request of the Pasco County Sheriff's Office (PCSO) concerning allegations of drugs sales on the premises of the Tavern. Agent Murray has been a sworn law enforcement officer for five and one- half years. Agent Murray completed a two-week basic Drug Enforcement Administration (DEA) drug school regarding the identification, sale and the manner of use of drugs. Agent Murray also completed a three-day undercover DEA school. During her five and one-half years as a sworn law enforcement officer, Agent Murray has been involved in at least 100 occasions where drugs were being sold or used. Agent Hamilton has been a law enforcement officer since 1981. During Agent Hamilton's tenure as a law enforcement officer he has been involved in numerous training classes regarding the identification, sale and manner of use of drugs, including courses taught by DEA. Agent Hamilton has been trained to recognize the scent of burning marijuana. Agent Hamilton has been in at least 70 different establishments where drugs, including marijuana, were being sold and used. As the agents approached the Tavern, they noticed a large number of people (100-150) standing in front of the Tavern and in a vacant lot across the road from the Tavern. Additionally, cars were parked along Cummer Road in front of the Tavern. The agents also testified that a "lot" of the people standing outside appeared to be "young". Upon entering the Tavern, the agents noticed that no one was checking identification at the door. The Tavern consists of two rooms divided by wall with a door between the two rooms. The bar is located in one room. The second room is a disco/dance area. Based on the description of the inside of the Tavern, a person behind the bar would not have clear view of all of the disco/dance area. On May 16, 1994, the Tavern was crowded with customers. Agent Murray saw what appeared to her to be a "lot of really young kids" in the crowd. Upon entering the Tavern on May 16, 1994, Agent Hamilton detected a scent in the air that resembled, based on his training and experience, the odor of burning marijuana. Agent Hamilton did not actually see anyone smoking marijuana inside the Tavern. Agent Murray also noticed, both on the inside of the Tavern in the dance floor area and outside the Tavern by the entrance, what appeared to her to be a hand-to-hand exchange between customers of what appeared to be money for something that she could not identify. As Agent Murray left the Tavern she noticed what appeared to her, based on experience and training, to be customers passing and maybe smoking marijuana. However, Agent Murray did not actually see the marijuana or the customers actually smoking marijuana. Agent Murray also noticed a customer with a closed fist going to another customer and placing the closed fist over an open palm and then the release of the closed fist. Based on her training and experience, this appeared to Agent Murray to be an exchange of crack cocaine between the customers. Agent Murray did not see or confirm that any crack cocaine was actually being exchanged. Upon reentering the Tavern, the agents were together at the bar and saw a black female customer place a large bottle of liquid on top of the bar close to where they were sitting. The customer ordered something from the bar and left with the bottle. Agent Murray testified that by observing the label on the bottle she was able to identify the liquid as scotch whiskey. Agent Hamilton testified that he observed the same black female with a bottle of "alcohol, distilled spirits" and further identified the liquid as a "bottle of gin". Neither Agent Murray nor Agent Hamilton testified that the bottle bore the manufacturer's insignia, name or trademark. Both agents were apparently close enough to the customer to be able to observe the label. Neither agent smelled or tasted the contents of the bottle. For reasons of their own, the agents did not seize the bottle. Agent Murray thought she saw the Respondent behind the bar on that day. Agent Hamilton referred to the person behind the bar that day as the clerk but did not identify the Respondent as being the clerk on May 16, 1994. On August 8, 1994, ten DABT agents and 20 deputies from the PCSO conducted a walk-through inspection (inspection) of the Tavern. The agents and deputies were dressed in such attire as to be visibly recognized as law enforcement officers. During the inspection on August 8, 1994, DABT Sergeant Allen Ray observed an individual inside the Tavern in possession of a cup of beer, which individual Sergeant Ray suspected of being under 21 years of age. Sergeant Ray testified that this person identified herself as Tamieka Ranell Shaw and that Shaw advised him she was under 21 years of age. Sergeant Ray then took Shaw outside and placed her in the custody of Agent Hamilton for processing. Agent Hamilton testified that Shaw advised him that she was 16 years of age. At this time, Shaw did not have a driver's license or any other type of identification in her possession that would verify her age or date of birth. Furthermore, Shaw was not identified by a family member or anyone else having personal knowledge of Shaw's age or date of birth. Neither Shaw nor anyone else having personal knowledge of Shaw's age testified at the hearing. Furthermore, DABT did not present any documentary evidence of Shaw's age at the hearing. DABT failed to prove that Shaw was under 21 years of age on August 8, 1994. There was no evidence that Respondent or any person working for Respondent had sold, given, served or permitted the beer to be served to Shaw. During the August 8, 1994, inspection, DABT Sergeant John Allen observed three individuals in the Tavern that he suspected of being under 21 years of age that were in possession of what Sergeant Allen considered to be an alcoholic beverage. Sergeant Allen escorted each of these individuals out of the Tavern separately. None of these individuals had a drivers license or any other type of identification to verify their age or date of birth. Sergeant Allen testified that each of the individuals identified themselves and admitted to being under the age of 21 years. However, one of the individuals managed to leave the premises before any other identification could be made. Sergeant Allen testified that Ronald Adair, one of the alleged underage customers referred to in Finding of Fact 15 above, was identified by his mother as being under 21 years of age in a telephone conversation with Sergeant Allen on August 8, 1994. However, neither Adair, his mother nor anyone else having personal knowledge of Adair's age was present at the hearing to testify as to Adair's age. Furthermore, DABT did not present any type of documentary evidence of Adair's age at the hearing. DABT failed to prove that Adair was under 21 years of age on August 8, 1994. The person identifying himself as Marlon Inmon, another of the alleged underage customers referred to Finding of Fact 15 above, was alleged to have been in possession of an alcoholic beverage inside the Tavern on August 8, 1994. Sergeant Allen testified that he talked to a relative of Inmon's over the telephone and that this relative identified Inmon and advised Sgt. Allen that Inmon was under 21 years of age. However, this person did not talk to or see the person claiming to be Inmon. Neither Inmon nor the person identifying Inmon over the telephone or anyone else with personal knowledge of Inmon's age testified at the hearing. Furthermore, DABT did not present any documentary evidence of Inmon's age at the hearing. DABT failed to prove that Inmon was under 21 years of age on August 8, 1994. The third alleged underage person referred to in Finding of Fact 15 above in possession of an alcoholic beverage on August 8, 1994, was never identified by anyone before he left the premises. Neither this person nor anyone else having personal knowledge of this person's age testified at the hearing as to this person's age. Furthermore, DABT did not present any documentary evidence as to this person's age. DABT has failed to prove that this person was under 21 years of age on August 8, 1994. During the walk-through inspection on August 8, 1994, DABT Special Agent Michael Freese seized a 1.75 liter of Seagrams gin, alcoholic beverage. The gin was in plain view on a table in the dance floor area. In attempting to seize the gin, Agent Freese had a confrontation with a customer who claimed the gin belonged to him. There was no evidence that the gin had been purchased on the premises. This gin is not the type of alcoholic beverage allowed to be possessed by the licensee or anyone else on the licensed premises of a licensee holding only a 2-COP alcoholic beverage license such as Respondent. The Respondent was present at the Tavern on August 8, 1994, and either directly observed, or was in such a position at the bar to have easily detected the presence of the unauthorized alcoholic beverage on the table. Also during the walk-through inspection on August 8, 1994, Agent Freese observed a small plastic bag containing a substance that resembled marijuana on the floor behind one of the speakers around the "DJ" booth. Agent Freese seized the bag and identified it as marijuana by sight and smell. A field test conducted by Agent Freese indicated that the substance was marijuana. However, Agent Freese testified that the field test may not be 100 percent accurate. No laboratory analysis was made of the substance suspected of being marijuana. DABT failed to prove that the substance was in fact marijuana. Likewise, DABT has failed to prove that Stewart was aware of alleged marijuana being present on the premises. During the walk-through inspection on August 8, 1994, Lieutenant Bruce Schmelter, PCSO, seized a loaded 22-caliber revolver that was protruding from beneath one of the speakers near the "DJ" booth. The revolver was turned over to DABT. However, DABT failed to prove that Stewart was aware of the revolver being present on the premises. After the walk-through inspection on August 8, 1994, Sergeant Allen gave Respondent official notice of the problems encountered during the inspection. On September 18, 1994, a second walk-through inspection (second inspection) was conducted at the Tavern by ten DABT agents and 25 PCSO deputies. The DABT agents and the deputies from the PCSO were dressed in such attire as to be visibly recognized as law enforcement officers. During the second inspection, agents Murray and Aikens advised Respondent that they intended to go behind the bar to secure that area. After advising Stewart of their intended action, there was a confrontation between Stewart and the agents wherein Stewart's daughter became involved. The agents became concerned because of the crowd and notified Sergeant Ray of the problem. Sergeant Ray advised Stewart of why they were there and that DABT agents had the authority to secure the area behind the bar. After this explanation, Respondent allowed Sergeant Ray and another DABT agent behind the bar without further incident. After the incident at the bar during the second inspection, Agents Murray and Aikens seized a bottle of Seagrams Extra Dry Gin, an alcoholic beverage, which they found on the floor against the wall in the area of the bar inside the Tavern. This gin is not the type of alcoholic beverage allowed to be possessed by the licensee or anyone else on or at the licensed premises of a licensee holding a 2-COP alcoholic beverage license such as Respondent. The Respondent was present in the Tavern on September 18, 1994, and either directly observed, or was in such a position as to have easily detected the presence of the unauthorized alcoholic beverage. During the second inspection, Agent Hamilton observed an individual in possession of a bottle of beer which individual he suspected of being under 21 years of age. Agent Hamilton testified that the individual was identified as Corey Anthony Owens, 20 years of age. Neither Owens nor anyone else having personal knowledge of Owens' age were present to testify at the hearing. Furthermore, DABT did not present any documentary evidence as to Owens' age. Agent Hamilton testified that Owens advised him that he had purchased the beer in the Tavern from a black male behind the bar. DABT presented no other evidence that the beer had been purchased in the Tavern. Although DABT has proven that Owens did have beer in his possession while in the Tavern on September 18, 1994, DABT failed to prove that Owens purchased or was served or given the beer in his possession on September 18, 1994, by Stewart or his servant, agent or employee. Furthermore, DABT failed to prove that Owens was under 21 years of age on September 18, 1994. On December 7, 1994, Captain Bruce Ashley met with Stewart at Stewart's request to discuss the Administrative Action that had been served on Stewart. At Stewart's request, Captain Ashley marked an X by the first box on the Request For Hearing which states as follows: "I dispute issues of fact. (Please list which of the charges and counts in the Administrative Action you dispute and why)." Also at Stewart's request, Captain Ashley wrote the following: "There are facts and issues that are not true that need to be discussed. I have documents and facts to bring out about this matter." (Emphasis supplied) Below this statement Captain Ashley wrote "Written On Behalf Of Licensee By" and signed his name. Below the above underlined statement there was an X with Isaiah Stewart's signature. On December 8, 1994, Captain Ashley wrote a memorandum setting forth what Captain Ashley considered to be the conversation between he and Stewart on December 7, 1994. However, because of the circumstances under which this conversation with Respondent occurred and the conflict between the statement signed by Respondent and Captain Ashley's memorandum, the memorandum is somewhat suspect and a cause for concern, and thereby lacks credibility. DABT's exhibit 4 consist of computer records from the PCSO listing the calls that the PCSO responded to around the Tavern from May 12, 1993 through June 29, 1994. Using these computer records DABT summarized the type of calls and the total number of each type of call received between February, 1994 and June 29, 1994. This summary shows a total of 69 calls of various types responded to by the PCSO during the period covered by the summary. Of the 69 calls listed in the summary, 22 were calls to backup units which apparently were backup for some of the other 47 calls. Ten calls were to assist a sick person. The balance of the calls were as follows: 2-affray/incite or encourage riot; 1- special patrol request; 1-juvenile problem; 3-miscellaneous incident; 2-field interrogation report; 4-shooting in area; 1-battery (simple); 4- disturbance(noise); 1-accident traffic; 1-illegal parking; 1-suspicious person; 3-narcotics violation; 1-throwing a deadly missile; 1-obstructing police without violence; 1-warrant arrest; 1-robbery, strong arm; 1-simple assault; 2-traffic warning; 1-aggravated assault; 1-weapons; 1-shooting into occupied dwelling; 1- battery on officer and 2-special detail. It is clear from the PCSO computer printout that the whole area around Cummer Road, not just the area around the Tavern, kept the PCSO busy responding to calls during the period in question. DABT presented no evidence as to the legitimacy of the call or if the call involved the activity of the Tavern's customers on the premises of the Tavern or the activity of someone else in the vicinity of the Tavern or what action was required upon the PCSO responding to the call. DABT failed to prove that Respondent kept or maintained a premises which was resorted to by persons who use or sell illegal drugs. DABT failed to prove that between the dates of February 1994, and September 1994, the Respondent maintained a public nuisance at his licensed premises.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law and having reviewed the penalty guidelines set forth in Rule 61A-2.022, Florida Administrative Code, it is recommended that a final order be entered finding Respondent guilty of the allegations contained in Counts 5 and 8 of the Administrative Action and for this violation that DABT assess an administrative fine in the amount of $1,000 against Respondent. It is further recommended that DABT dismiss Counts 1, 2, 3, 4, 6, 7, 9, 10 and 11 of the Administrative Action. RECOMMENDED this day 27th of September, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, 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 27th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1482 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 Petitioner in this case. Petitioner's Proposed Findings of Fact. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1-3(2); 4-5(3); 6(6); 7(7); 8(8); 9(9); 10(5); 11(10); 12(4,10-11); 13(11); 14(12); 15(13); 17-18(15); 21-22(19); 24-25(21); 26(22); 27(23); 28-29(24); 30(25); 32(27); and 34(28). Proposed finding of fact 16 is adopted in Finding of Fact 14, except that portion regarding the age of Shaw, which is rejected. Proposed finding of fact 19 is adopted in Finding of Fact 16, except that portion regarding the age of Adair, which is rejected. Proposed finding of fact 20 is adopted in Finding of Fact 17, except that portion regarding the age of Inmon, which is rejected. Proposed finding of Fact 23 is adopted in Finding of Fact 19, except that the field test did not absolutely prove that the substance was in fact marijuana. Proposed finding of fact 31 is adopted in Finding of Fact 26, except that portion regarding the age of Owens and that Owens purchased the beer in the Tavern, which is rejected. Proposed finding of fact 33 is rejected as not being supported by competent, substantial evidence in the record. The Respondent elected not file any proposed findings of fact. COPIES FURNISHED: John J. Harris, Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda L. Goodgame, Esquire General Counsel Department of Business Professional Regulations Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard A. Grumberg, Esquire Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Isaiah Stewart, Pro se Post Office Box 429 Lacoochie Florida 33537
The Issue The primary issues for determination are whether Brother J. Inc., d/b/a A.J.’s Sports (Respondent) violated Section 561.29(1)(a), Florida Statutes; and secondarily, if Respondent committed such a violation, what penalty should be imposed?
Findings Of Fact Petitioner is the agency vested with general regulatory authority over the alcoholic beverage industry within the state, including the administration of the laws and rules relating to the sale of alcoholic beverages. Respondent is subject to the regulatory jurisdiction of Petitioner, having been issued license number 47-02607, Series 4-COP by Petitioner. That license allows Respondent to make sales for consumption on premises of liquor, wine, and beer at his establishment located in Tallahassee, Florida. Events at issue in this proceeding revolve around a fraternity/sorority party held at Respondent’s establishment on the evening of March 30/April 1, 2005. Members of the Phi Kappa Psi fraternity and the Delta Nu Zeta sorority decided that they would host a “construction” theme party. To facilitate the party, the social chairman of Phi Kappa Psi contacted Respondent to make arrangements. Respondent’s establishment has several large areas on its ground floor and a single, 1,800 square foot room on the second floor. Respondent agreed to reserve its upstairs room for the Phi Kappa Psi/Delta Nu Zeta party, to waive its cover charge for party patrons, and to make “dollar wells, dollar beers” (i.e. discounted prices on certain alcoholic beverages) available to party participants for a fee of $300.00. On the night in question, most of the participants met at the Phi Kappa Psi house before going out for the evening. They gathered around 10:00 p.m. and socialized. Some people were getting their “construction” costumes together; others were “pre- partying” –-drinking before going out to minimize the size of the bar bill when they go out later. The majority of the people at the frat house at that time were drinking. At some point around 10:30 or 11:00 p.m., the party moved from the Phi Kappa Psi house to Respondent’s establishment, with party members leaving in groups of three or four to drive from the fraternity house to Respondent’s establishment. It was estimated that 15 or so sorority members and 15 to 30 fraternity brothers attended the party, and that somewhere between a third and a-half of those people were not of legal drinking age. When they arrived at Respondent’s establishment, the sorority and fraternity party makers used a side entrance set up for them by Respondent for use in getting to the party. A doorman was posted at the side entrance that checked the age of each of the patrons. He would place a “Tybex®” wristband on those persons who were over the age of 21 and would mark the hand of those under 21 with an indelible marker. Once inside, party members would go upstairs, where there was a bar with a bartender, a disk jockey, and a dance floor. The party continued on until around 2:00 a.m. on the morning of April 1, 2005, at which time the bar closed and the patrons left. During the course of the evening, 244 alcoholic beverages were served at the upstairs bar at Respondent’s facility. No evidence was presented that established with any degree of accuracy how many fraternity and sorority members actually were at the party and how many were of legal drinking age. The evidence of party attendance provided at hearing varied widely and was in each instance an estimate or a guess. Numerous persons who were not members of Phi Kappa Psi or Delta Nu Zeta were in attendance. There is no accurate estimate of how many legal drinkers were at the party or how many drinks each legal patron may have had. The Underage Drinkers Shane Donnor was observed drinking at the frat house that night. He did not, however, appear to be intoxicated when he left the frat house. He had a wristband indicating that he was over 21, which allowed him to drink at Respondent’s establishment, even though he was not of legal age. It is unknown how he obtained his wristband. Donnor was observed to have a glass in his hand while at Respondent’s establishment, but no one could confirm that he was drinking alcohol. While at Respondent’s establishment, various witnesses described him as appearing under the effects of alcohol and thought he appeared quite intoxicated. By 2:30 a.m. on April 1, Donnor had a blood alcohol level of 0.27. This corresponds to at least 10 drinks and probably more. It is an extremely high level of intoxication, which could result in a coma or even alcohol toxicity in some persons. He was quite drunk and had been so for some time. Stephanie Reed was carded upon entering Respondent’s establishment, as was her boyfriend and all the others in her party. She had one or two drinks, but she didn’t buy them herself. One of the fraternity brothers purchased her drinks for her. Reed testified at one point that she did not receive a wristband when she entered the establishment (signifying legal drinking age); later, she testified that she did due to the intervention of some unknown man who told the doorman to give her a bracelet. Reed’s testimony on this point is inconsistent and cannot be credited. Christopher Lowe was carded as he entered Respondent’s establishment. He received marks on the back of his hand indicating that he was underage. Although he was marked as being underage, Lowe was able to purchase two drinks from the bartender. He ordered the drinks; did nothing to conceal the underage marks on his hand; was served; and left money on the bar. Tania Vasquez was carded upon entering Respondent’s establishment and was marked as being underage. She did not buy any drinks while at the party, but was given an alcoholic beverage by a friend that she consumed while on the premises. Elizabeth McKean, and everyone who entered with her, were carded when they arrived at the party. McKean was marked as being underage. She did not buy any drinks for herself, but was given a shot of tequila by someone else. She drank the shot quickly to avoid detection by Respondent’s staff. David Moser had a roommate who manufactured fake i.d. cards. When he entered Respondent’s establishment, he was carded and presented a false drivers license that made it appear that he was over the age of 21. He was marked as though he was over the legal drinking age and was able to buy and consume drinks at the bar, which he did. Lee Habern had several sips of a friend’s drink that was “snuck” to him. Prevention Of Underage Drinking It is well recognized that underage persons will seek to obtain alcoholic beverages at bars. This action by underage youths results in a “cat and mouse” game whereby the bar will change its tactics in trying to prevent underage drinking and the underage drinkers will change their methods of trying to obtain drinks. Respondent tries to combat underage drinking by creating a culture of compliance. This starts with the initial hiring of employees by Respondent. Respondent’s policy is that no underage drinking will be tolerated. This policy is stated in the Employee’s Handbook. Every employee is given a copy of the handbook upon becoming employed and is required to sign an acknowledgement that he or she received it. The policy is reiterated in informal training at every staff meeting. Every new employee at Respondent’s establishment is required to go through formal training with regard to liquor laws, the effect of alcohol on the human body, dealing with customers who have had too much to drink, and related topics. These courses are known as “PAR”, “TIPS”, and “Safe Staff” and are offered by the Florida Restaurant Association and Anheiser-Busch. Respondent has also offered training provided by agents of Petitioner. These formal training programs are offered continuously to employees, and at least one of the programs is offered three times each year. The initial formal training is accomplished within 30 days of the employee being hired. Records are maintained by Respondent as to who receives what training, and when it is provided. Respondent has a policy that everyone who is served alcohol is to have his or her age checked. When the bar is not busy, this is accomplished by having the waitress check the patron’s I.D. When the bar is busier, a doorman is posted at the entrance to check the patron’s I.D. If the patron is over age 21, he or she is given a wristband; if under age 21, an indelible mark is placed on the back of the hand. Since Respondent has experienced persons copying their “over 21” designation, it is changed on a nightly basis. Fake identification cards, if detected, are confiscated. On busier nights, Respondent might confiscate 20 to 30 of such fake identifications. On the night in question, the doorman confiscated five altered cards. Respondent also has a floor manager on duty at all times that the bar is open. The floor manager will circulate throughout the establishment to make sure that all of the policies and procedures, including the prevention of underage drinking, are being carried out. On the night in question, the floor manager, Bo Crusoe, is documented to have worked and in the nominal course of events would have checked the upstairs area of the premises several times. On busy nights, Respondent will hire one or more off- duty City of Tallahassee police officers to serve as security at the bar. The officers work in their police uniforms. These officers serve first and foremost as high visibility deterrents to unlawful activity. Their mere presence serves to minimize underage drinking. Respondent regularly has off-duty law enforcement on the premises. Respondent also has a security consultant, Officer John Beemon, who is a Tallahassee Police officer. He evaluates the need for additional security and communicates those needs to the owners. When he becomes aware of a new wrinkle in underage persons obtaining alcohol, he works with Respondent to prevent the practice. He assists the doormen in identifying fraudulent I.D.s. Respondent has always implemented whatever recommendations Beemon makes to them. Generally, the security measures used by Respondent have proven effective. From time to time, Petitioner will try a “sting operation” at Respondent’s establishment by sending a minor into Respondent’s bar to see if they are able to purchase alcohol. On every such “sting operation” Petitioner’s decoy was identified and stopped at the front door and was not allowed to purchase alcoholic beverages. Carrie Bruce is Petitioner’s special agent for the Tallahassee area. She is familiar with most Tallahassee alcoholic establishments and her testimony establishes that Respondent’s establishment is not considered a “problem bar” by Petitioner and is considered to be better than other area bars in preventing underage drinking. To the best of the owner’s knowledge and Beemon’s knowledge, no one has ever knowingly served a drink to a minor at Respondent’s establishment. Further, Respondent has never previously been charged with serving alcohol to minors.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
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.
Findings Of Fact At about half past ten o'clock on the night of December 14, 1977, Daniel James Cobb, than a beverage officer under the supervision of Lieutenant Robert E. Baxley, arrived at the Mezzanine Lounge at the corner of Intendencia and South Palafox Streets in Pensacola. He entered through the south door, went upstairs, and sat down at a table. An Asain woman who said her name was Charlene asked him if he wanted a drink and asked him to buy a drink for her, which he did. Subsequently, he bought a bottle of champagne for $18.00, at her request. Other customers at other tables also bought drinks for this woman, who went from table to table, occasionally stopping to chat with Officer Cobb. She asked him if he wanted a "chick," offered her own sexual services for $50.00, and said that he could have two girls for $100.00. Officer Cobb left the premises alone about midnight. At approximately quarter past eight on the night of January 5, 1978, Officer Cobb returned to the Mezzanine Lounge. Again he went upstairs and sat at a table. After he had ordered a drink for himself, he bought a drink for a dancer who sat down at his table. A second dancer, a blonde known professionally as Gigi, came over and offered to dance "for tips." Gigi, who is also known as Christine Haney Hampton, performed an impromptu dance after Officer Cobb gave her $5.00. At Gigi's insistence, he then bought a bottle of champagne for $30.00, which Gigi opened. When she did, the cork ricocheted off the ceiling and hit Lieutenant Baxley, who had taken a seat at a nearby table. Lieutenant Baxley had arrived 15 or 30 minutes after Officer Cobb, and was drinking bourbon, when he was hit by the cork. Maintaining the pretense that they were strangers, Officer Cob invited Lieutenant Baxley to join him for champagne. Lieutenant Baxley accepted, struck up a conversation with Gigi, then left with Gigi for another table. Shortly thereafter Officer Cobb left the premises alone. Gigi said to Lieutenant Baxley, "If you buy me a bottle of champagne, we'll have a party." She told him she would do anything for $100.00. Lieutenant Baxley purchased a bottle of champagne for $30.00, and he also bought three flowers for Gigi for $2.00, at her request. At one point on the night of January 5, 1978, respondent Julie Schofield came upstairs. When asked, she said Gigi could not leave early. Respondents purchased the Mezzanine Lounge from a Mr. Aliberti some three years ago. At the time it was a topless bar. For the first three months they owned it, respondents did not operate it as a topless bar, but they "reverted." The dancers were topless on the nights of December 14, 1977, and January 5, 1978. Respondent Julie Schofield spent five nights a week at the Mezzanine Lounge during that period. Respondent Frank Joseph Schofield visited the premises daily. After Gigi had worked for respondents as a dancer for two or three months, respondents entered into an agreement with her husband, Harry Hampton, who undertook the management of the upstairs portion of the licensed premises, called the "Hideaway Lounge area." Mr. Schofield described the agreement in these words: "[M]y mark up percentage is 600 percent or as close as possible to it. any additional income may be disbursed as he sees fit. At the even- ings close Mr. Hampton gives me a sheet showing total liquor and bar sales for the evening. The cash for the evening is also turned in minus whatever cash disburs[e]ments were made. Most of the excess profit is derived from cocktail sales at 1000 percent mark up and bonus money is handed out from that by Mr. Hampton as determined by the number of drinks they had. This is approximately 30 percent of the drink price." Petitioner's exhibit No. 2. The more drinks the girls sold, the more money they made. Respondents terminated this agreement after hearing that Mr. Hampton was inviting bar patrons elsewhere for "exotic treats" and "personalized service." Respondents made no investigation of Mr. Hampton before hiring him. On January 18, 1978, Officer Cob and Lieutenant Baxley arrested Christine Hampton and the Asian woman who had identified herself as Charlene, who is also known as Phung Kim Holland. Although both women were charged criminally, neither was convicted. Ms. Holland was acquitted after trial by jury; Ms. Hampton pleaded nolo contendere, but adjudication was withheld. After the arrests, respondents "fired a few people." In addition, respondents posted a sign on a wall urging patrons to report the solicitation of drinks to the management and placed "table tents" imprinted with the same message on various tables; and they also installed more lights on the licensed premises. At one point, Mr. Schofield asked some of the employees of the Mezzanine Lounge not to solicit for prostitution. Petitioner instituted the present proceedings by serving respondents with a notice to show cause on March 17, 1978. An informal conference on March 24, 1978, was attended by Mr. Schofield and Lieutenant Baxley. Respondents were not represented by counsel at the informal conference. On May 23, 1978, respondents' counsel wrote Lieutenant Baxley suggesting that the notice to show cause be dismissed "[i]n light of the outcome of the criminal cases." Respondents' exhibit No. 1. On August 24, 1978, the petitioner referred the matter to the Division of Administrative Hearings for formal hearing, even though respondents have never made demand for formal hearing. On August 28, 1978, notice of hearing issued setting the final hearing for September 29, 1978, but the hearing was continued on application of respondents' counsel, according to the file. The final hearing was next noticed for December 13, 1979. On December 13, 1979, according to the file, counsel for petitioner sought a continuance on grounds of Lieutenant Baxley's illness and represented that counsel for respondents had no objection to the continuance; and the final hearing was again continued. Also on December 13, 1978, respondents' counsel (who had previously corresponded with counsel for petitioner, respondents' exhibit No. 3) wrote a letter to Lieutenant Baxley "objecting to any kind of hearing . . . because so much time has transpired [sic] since the original offense." Respondents' exhibit No. 2. Respondents' counsel did not send copies of this letter either to petitioner's counsel or to the hearing officer.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED that petitioner impose a civil penalty against respondents' license in the amount of three thousand dollars ($3,000.00). DONE AND ENTERED this 30th day of May 1980 in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May 1980. COPIES FURNISHED: Daniel C. Brown, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Robert G. Kerrigan, Esquire 224 East Government Street Pensacola, Florida 32501
