The Issue The issues in both cases is whether the respondents violated section 480.046(1)(o), Florida Statutes (2012), which prohibits a violation of any provision within chapter 480 or any rule adopted pursuant to chapter 480, and, if so, what penalty should be imposed. In DOAH Case 14-2552PL, the specific issue is whether Respondent Hong Tang (Respondent Tang) violated section 480.0485 by using the massage therapist-patient relationship to induce or attempt to induce patients to engage in sexual activity outside the scope of the practice of massage therapy. In DOAH Case 14-2551, the specific issue is whether Respondent Tang owned and practiced massage therapy at Respondent Hong Tang Long Life Therapy Massage (HTLLTM) and whether Respondent Tang violated Florida Administrative Code Rule 64B7-26.010(2) by engaging in, or attempting to engage in, sexual activity, indirectly or directly, within the massage establishment and outside the scope of her practice of massage therapy.
Findings Of Fact Respondents hold Florida massage therapy licenses. At all material times, Respondent Tang, a 50-year-old female who was born in China and moved to the United States in 2008, owned and performed massage therapy at Respondent HTLLTM. In May 2013, an advertisement appeared in backpage.com with the telephone number and address of Respondent HTLLTM, although the ad named neither respondent. The ad described massage services and prices and contained three photographs, but neither the text nor the photographs contained any sexual content or promise of sexual activity. On August 22, 2013, at about 10:00 a.m., a deputy sheriff of the Palm Beach County Sheriff's Office telephoned Respondent HTLLTM and spoke with Respondent Tang about obtaining a massage. There is no indication of any sexual content in this brief conversation. Shortly after concluding his conversation with Respondent Tang, the deputy sheriff, who was dressed in casual clothes, drove to Respondent HTLLTM, where he entered the front door, posing as a customer. No one else was present in the establishment except Respondent Tang, who invited the deputy into a massage room. Nothing in the massage room indicated the availability of sexual activity. In the corner of the room was a basket. The parties disputed whether the basket contained sexual aids. It is unnecessary to determine the nature of the basket's contents because the deputy testified that he saw no sexual aids on entering the massage room and the contents of the basket were not visible unless someone stood beside the basket and looked down. Once they were in the massage room, the deputy and Respondent Tang negotiated a price for a massage, which was $50 for one half-hour. The deputy asked if the massage was "full service." This is the first reference to sexual activity in any conversation between the deputy and Respondent Tang. Respondent Tang responded with a hand motion, in which she formed a circle with her hand while moving it up and down, indicating by gesture that she would manually masturbate the deputy's penis. Respondent Tang did not verbally describe the service, but said that the additional cost would be $30. Signaling his intent to purchase a massage with masturbation of his penis, the deputy offered Respondent Tang $80 in the form of four $20 bills. After Respondent Tang accepted the payment, the deputy excused himself on some pretext, allowing other law enforcement officers to enter the establishment and execute a search warrant. Manual masturbation of the deputy's penis would have been outside the scope of practice of massage.
Recommendation It is RECOMMENDED that the Board of Massage Therapy enter a final order finding Respondent Hong Tang and Respondent Hong Tang Long Life Therapy Massage not guilty of the allegations contained in the administrative complaints. DONE AND ENTERED this 31st day of December, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 31st day of December, 2014.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on December 8, 2003.
Findings Of Fact Petitioner is an African-American man who was employed by Respondent from July 16, 2003, until his termination on October 28, 2003. Respondent, North Florida Lubes, Inc., d/b/a/ Texaco Xpress Lube, is an employer within the meaning of the Florida Civil Rights Act of 1992. Respondent operates more than 25 Texaco Xpress Lube stores in Florida and is headquartered in Jacksonville, Florida. Brian Fowler is Respondent’s owner and president. In the summer of 2003, Respondent acquired two lube stores and a car wash in Ocala, Florida. Prior to their acquisition by Respondent, these Ocala stores were owned and operated by John Costa. One location included both the car wash and lube store and is located at 3680 East Silver Springs Boulevard. It was purchased in June 2003 and once acquired, Respondent designated it as Store No. 1018 (1018 Store). The other location, which is located at 1708 East Silver Springs Boulevard, was acquired by Respondent in July 2003, is a lube store and has been designated by Respondent as Store No. 1020 (1020 Store). Respondent leases the 1020 store from John Costa under a lease purchase agreement. At the time of their acquisition, both stores were in very poor condition, and Respondent made major repairs and improvements. The 1020 Store was in worse condition than the 1018 Store. Due to extensive renovations, the 1020 Store did not open for business until the beginning of August 2003. At the time Respondent acquired these two Ocala stores, neither store was earning a profit. The 1018 Store was barely breaking even and had monthly sales revenues dating back to June of 2002 of between $11,000 and $14,000 per month. These sales figures were based on a volume of about 350 cars per month and equated to a monthly ticket average of $28 per car. Prior to the acquisition by Respondent, the 1020 Store was doing even worse with a monthly sales revenue of between only $9,000 and $11,000. Since Respondent has taken over these stores, they have virtually doubled their total sales. Currently, Respondent's 1018 Store averages between $32,000 and $34,000 in monthly sales; whereas the 1020 Store has increased its monthly sales revenues by 30 percent. Respondent's normal and expected ticket average company-wide is between $47 and $50 per car. Immediately prior to Respondent’s acquisition of the two Ocala lube stores, Petitioner worked for Mr. Costa as the manager of what is now the 1020 Store. He was the manager of the store for three years and had several years of oil-changing experience. Another employee of Mr. Costa’s was a white male, Jason Yates, who managed what is now the 1018 Store. About the time of Respondent’s acquisition of the two stores, Petitioner went on vacation. When he returned, the 1020 Store was closed, so he went to the 1018 Store. As there had been a change in ownership, Petitioner applied to work for Respondent. He was offered and accepted a job as an oil changer and lube technician with Respondent and began work at the 1018 Store. Mr. Yates also was offered and accepted a position as an oil changer and lube technician with Respondent. Mr. Yates began employment with Respondent in June 2003 at the 1018 Store, several weeks before Petitioner began his employment with Respondent. Both Petitioner and Mr. Yates believed they were in training for a management position. However, there is not an official job title of "manager-in- training" within Respondent’s company. Hourly employees can receive on-the-job managerial training. In any event, there is no dispute that both Petitioner and Mr. Yates performed oil changing duties and that Respondent provided Petitioner with some managerial training during his employment. When Petitioner began working at the 1018 Store, Mark Shepherd was store manager and was responsible for training new staff with Respondent’s business practices and rules. Mr. Shepherd showed Petitioner how to run Respondent’s computer software programs, how to calculate money received, and how to open and close the store. Then Respondent transferred Richard Grant, an experienced store manager from Respondent’s Daytona Beach area, to manage the 1018 Store. Mr. Grant supervised Petitioner for a couple of months before Mr. Grant voluntarily resigned due to what he described as the pressure associated with running the 1018 Store. Petitioner was given on-the–job training with respect to making sales and greeting customers. According to Mr. Grant, Petitioner was not good at greeting customers or making sales because he was slow, quiet, and not out-going. Mr. Grant described Petitioner as having a poor attitude and always complained about the way Respondent did things and the operational changes since Respondent’s acquisition of the store. Respondent emphasized to Mr. Grant that it wanted its employees to be energetic, enthusiastic, and upbeat, and Mr. Grant felt that Petitioner did not have those characteristics. Mr. Grant repeatedly counseled Petitioner about wearing his safety glasses while at work, which was part of Respondent’s safety policy. Further, Mr. Grant counseled Petitioner on the importance Respondent placed on maintaining clean work areas. He described Petitioner’s work area as not clean and the worst "basement" (i.e., oil changing area) that he had ever seen. Larry Campbell is a regional or district manager for Respondent. This position is directly under the president of the company in the chain-of-command. Mr. Campbell oversees approximately a dozen lube stores and the car wash. He spent a great deal of time in the 1018 Store during Petitioner’s employment there. At one point, Mr. Campbell was asked by Mr. Grant if he should fire Petitioner. However, Mr. Campbell wanted to give Petitioner a chance to come around to Respondent’s way of doing business. Specifically, on a daily basis, he gave Petitioner the opportunity to greet customers, ring out tickets, work on the computer, work the clipboards, and conduct sales. However, Mr. Campbell also expressed similar concerns regarding Petitioner, to those of Mr. Grant. According to Mr. Campbell, Petitioner was quiet, slow, lacked energy and enthusiasm, was resistant to Respondent's ways of doing things, and would not smile or make eye contact with the customers. Although Petitioner received training on Respondent's procedures, he did not follow those procedures, even after being counseled by Mr. Campbell to do so. Petitioner also would not promote sales or specials that Respondent was offering to the customers despite being counseled to do so by Mr. Campbell. Mr. Campbell also described Petitioner as consistently displaying a bad attitude at work that got worse as the day progressed. As a regional manager, Mr. Campbell, along with Respondent's president and owner, Mr. Fowler, participates in the hiring of store managers. Respondent looks for positive, motivated, and enthusiastic individuals with leadership qualities; however, Mr. Campbell did not observe these qualities in Petitioner. Mr. Fowler also had occasion to observe Petitioner's attitude and work ethic at the 1018 Store. Like both Messrs. Grant and Campbell, Mr. Fowler found Petitioner to be quiet, stand-offish, and resistant to Respondent's way of doing things. Respondent's Business Philosophy and Practices Although both Mr. Costa and Respondent successively operated oil change businesses in the same two locations, the manner in which these two businesses were run was very different. Respondent has uniform standards to which all employees are required to adhere, regardless of whether they are responsible for sales, changing oil, greeting the customers, or ringing the customers out. Respondent has policies and procedures for how every position is to be performed. Respondent also has policies addressing how its employees will act, communicate, conduct themselves, and dress in the workplace. For example, employees are required to be well-groomed and wear clean uniforms with their shirt tails tucked in. Further, employees are specifically required to use certain commands and perform services in a certain order. By contrast, Mr. Costa's lube stores had no procedures or controls, no communications, no "echo system," and no standard methodology for servicing cars. In Respondent's business, efficiency is considered to be critical. As a result, Respondent strives to service each car in under ten minutes and places an emphasis upon its employees to "hustle" while on the job. In particular, Respondent has a "five second" rule, which mandates that its employees must greet a customer within five seconds of the customer's arrival. Respondent specifically trains its employees concerning not only how to work quickly, but also how to appear knowledgeable, friendly, and helpful to its customers. Unlike Respondent, the previous owner placed no such pressures on his employees. Similarly, Respondent has established a ticket average quota, which the previous owner did not. Respondent also has strict safety policies. These policies are reduced to writing and are reviewed with all of Respondent's employees. These safety policies have been approved by OSHA and all employees are expected to follow them. One such safety policy is the requirement that employees wear safety goggles or glasses at work. In Respondent's very competitive business, all employees, no matter what position they hold, are expected to exhibit an upbeat and enthusiastic attitude. Respondent’s philosophy is that a negative attitude can drain the efficiency of the work team at a store. Also, a positive attitude is considered important because each day, every employee of Respondent's has some customer interaction. Respondent believes that a positive attitude is so critical for its employees to have that it states on the first page of its Employee Handbook that: North Florida Lubes is committed to service excellence, quality control and employee personality. North Florida Lubes demands the highest standards from its employees, as the quick lube and car wash industries become more and more competitive every year. Over the years, North Florida Lubes has improved training methods, computer systems, equipment and service procedures to insure the highest level of employee and customer satisfaction. It is the philosophy of North Florida Lubes that well trained employees, with positive attitudes, will enjoy a long, fulfilling career with any company they choose to work for. At North Florida Lubes, we hope that you will enjoy your employment experience and that you will be involved with the growth of America's fastest growing Texaco Xpress Lube operator. Remember, a consistent positive attitude, dependability and personality will be your greatest assets in growing with North Florida Lubes. Respondent's Promotion of Other Employees to the Position of Store Manager. Respondent did not promise Petitioner that he would be promoted to a store manager position. Notably, Petitioner acknowledges that at the time he was hired by Respondent, that he had not yet learned Respondent's methods of operation. Petitioner also acknowledges at the time he was hired, the 1018 Store had both a store manager, Mark Shephard, and an area manager, Mike Dogherty, based there. Petitioner further concedes that Respondent never told him that he was not being considered for a managerial position because he was African- American. The determination of who is or is not qualified to be promoted to the position of manager of one of Respondent's lube stores is made by Messrs. Fowler and Campbell. Respondent's promotion policy states that if there are two or more employees whose qualifications are similar, seniority will be part of the selection decision, but the decision will not be made on that basis alone. It also clearly states that an employee must be qualified in order to receive a promotion and that if there are no qualified applicants within the company, the best qualified candidate will be chosen. In early August of 2003, Mr. Campbell transferred Mr. Yates to be the manager of the newly-opened 1020 Store. At the time, Mr. Yates had more seniority and experience working for Respondent than Petitioner did, as he had been working at the 1018 Store about a month-and-a-half longer than Petitioner. Mr. Campbell decided to place Mr. Yates in charge of the 1020 Store because he had achieved all of the goals Respondent was looking for. Specifically, Mr. Yates met Respondent's ticket average, he could operate the computer, and he followed Respondent's procedures. Mr. Campbell also described Mr. Yates as energetic and trying to apply himself. By contrast, Mr. Campbell found that Petitioner did not perform these same functions, despite being given numerous opportunities to do so and despite being given instruction as to what he was doing wrong. Mr. Campbell specifically counseled Petitioner while he was receiving on-the-job managerial training that he was not getting the job done. Ultimately, because of his poor attitude, lack of leadership skills, inability to meet Respondent's ticket average, and promote Respondent's products and services, Mr. Campbell, and ultimately Mr. Fowler, determined that Petitioner was not appropriately suited to be one of Respondent's store managers. Under Respondent's promotion policy, if there are no qualified applicants within the company to fill a vacancy, Respondent may look outside of the company to hire the best qualified applicant. This is what Respondent did with James Bailey when it determined Petitioner to be not qualified. After Mr. Grant resigned as manager of the 1018 Store in early October of 2003, Respondent hired James Bailey, a white male, to manage that facility. At the time Mr. Bailey was applying for this position, Messrs. Campbell and Fowler had already determined that Petitioner did not have the necessary qualifications to be one of Respondent's store managers. Upon making this determination, Mr. Campbell informed Petitioner that he was not suited to be one of Respondent's store managers. Mr. Bailey was interviewed by Mr. Campbell and then hired by Messrs. Campbell and Dougherty, with Mr. Fowler's approval. Prior to working for Respondent, Mr. Bailey had spent approximately eight years working for Denro Service Center as an automotive mechanic's helper. In that capacity, he performed oil changes, lube jobs, tune-ups and brake jobs in New York. Over the course of his employment with Denro Service Center, Mr. Bailey performed hundreds, if not thousands, of oil changes. Mr. Bailey also possessed approximately 15 years of managerial experience before coming to work for Respondent. In particular, he had managed a Subway Restaurant and a Kwik King Convenience Store, as well as the Denro Service Center. During the time he managed a Subway Shop, he doubled that store's sales and credits himself with driving the Miami Sub Shop across the street out of business. Since Mr. Bailey became the manager of the 1018 Store, the sales at that location have drastically increased. By following Respondent's system to the letter, the 1018 Store went from monthly sales of $13,000 in January of 2003 (i.e., when Costa owned it) to $35,000 in January of 2004. In addition to Messrs. Grant, Campbell, and Fowler, Mr. Bailey also had an opportunity to observe Petitioner while he worked at the 1018 Store. Mr. Bailey described Petitioner as being unmotivated, lackadaisical, stand-offish, unprofessional, and surly. According to Mr. Bailey, Petitioner spent more time at work on his personal cell phone than he did working on cars. Mr. Campbell insists that Petitioner's race played no role in the decision not to promote Petitioner. Mr. Campbell has promoted several African-American employees, including Michael Ghent and Marvin Freeman, to managerial positions in Respondent's operations. Mr. Campbell has also recommended another African-American for such a promotion, but that employee declined. Mr. Ghent has managed a store for Respondent for approximately nine years and asserts that he has never experienced anything which he considered to be racial discrimination from Mr. Campbell. Similarly, Mr. Freeman currently serves as a store manager for Respondent and has managed a total of four of Respondent's stores. Mr. Freeman is familiar with Messrs. Fowler, Campbell, and Dogherty and asserts that he has never been subjected to racial discrimination by any of these individuals. Further, Mr. Campbell recommended Mr. Freeman for a promotion which he received, and Mr. Freeman was hired back after he voluntarily left employment to work for another company. Respondent's Termination of Petitioner According to Mr. Campbell, Petitioner's attitude and work ethic declined further after Respondent hired Mr. Bailey. In particular, Mr. Campbell described Petitioner as always having a negative attitude and showed no interest in doing things the way Respondent wanted them done. Although Mr. Campbell spoke to Petitioner about his deteriorating attitude before he was terminated in an effort to allow him to change, Mr. Campbell did not observe improvement in Petitioner's work habits. On October 28, 2003, Respondent terminated Petitioner's employment. Although Messrs. Campbell, Dogherty, and Fowler were involved in the decision to terminate Petitioner, Mr. Fowler made the ultimate decision. The decision to terminate Petitioner was made because of Petitioner's: negative attitude, which was impacting Respondent's other staff; (b) unwillingness to learn Respondent's way of doing things; and (c) constant resistance to the changes Respondent implemented in the workplace. At the time of his termination, Petitioner had been given almost four months to turn his attitude and performance problems around, yet he had not done so to the satisfaction of Respondent. Petitioner's Allegations of Discrimination Petitioner initially claimed that three employees of Respondent, Messrs. Campbell and Dogherty, and Kathy Dogherty, are the individuals who discriminated against him on the basis of his race. Ms. Dogherty was the manager of the car wash facility which was also located at the 1018 Store. Petitioner alleges she made racially offensive comments to him. Petitioner acknowledges that store managers, Messrs. Shepherd and Grant, did not discriminate against him and now concedes that Mr. Dogherty did not make any racially derogatory remarks against him and did not articulate any other form of discrimination regarding Mr. Dogherty. Ms. Dogherty did not testify at the hearing. Accordingly, any alleged statements by her are hearsay and are not sufficient in itself to support a finding of fact as contemplated by Subsection 120.57(1)(c), Florida Statutes. Petitioner asserts that Mr. Campbell made two racially discriminatory remarks about him. On one occasion, Petitioner alleges that Mr. Campbell stated that he (Petitioner) made more money on his cell phone than he did working for Respondent. Petitioner never heard Mr. Campbell make this statement nor did he ever confront Mr. Campbell about the statement, after learning of it, to ascertain what Mr. Campbell may have meant by it, because he "didn't want to rock the boat." Instead, this statement was overheard by Mr. Yates, who perceived Mr. Campbell to mean that because Petitioner was African-American, he must be selling drugs on his cell phone. Mr. Yates admitted, however, that Mr. Campbell did not say anything about Petitioner's race when making this statement and that he did not know what Mr. Campbell's intent was in making this statement. Mr. Yates further conceded that he witnessed Petitioner on his cell phone at the time Mr. Campbell made this statement and that Petitioner, who was being paid an hourly wage, was talking on his personal cell phone while on company time. Mr. Yates also acknowledged that Respondent had a policy in its Employee Handbook restricting the receipt of personal calls while at work. Mr. Campbell acknowledges making the statement that Petitioner made more money on his cell phone than he did working for Respondent, but denies that he intended any racially derogatory connotation or that he was implying Petitioner was dealing drugs. According to Mr. Campbell, Petitioner spent an inordinate amount of time on his cell phone attending to personal business while on company time, instead of performing work; thus, what he meant to convey was that Petitioner was being paid by Respondent to be on the phone instead of performing his job. Petitioner's cell phone usage while at work was frustrating to Mr. Campbell because it was not productive, it caused a distraction in the workplace, and it was contrary to Respondent's personal phone call policy. Mr. Campbell was not the only one of Petitioner's supervisors to remark about Petitioner's excessive cell phone usage at work. Mr. Bailey asserted that Petitioner spent more time talking on his cell phone than he did working on cars and that Petitioner was on his cell phone while draining oil from the customer's cars. Similarly, Mr. Grant noted that Petitioner used his cell phone while on company time "quite a lot." Respondent's Quarterback Rating System is a percentage-based rating system for Respondent's managers similar to the system used in the National Football League (NFL) for rating quarterbacks and consists of four rating categories: meeting the monthly sales quota; (2) meeting the agreed-upon ticket average; (3) servicing a certain number of cars per month; and (4) not exceeding the labor cap. Petitioner alleges that once while explaining Respondent's Quarterback Rating System, Mr. Campbell instead talked to him about a basketball analogy so that Petitioner could understand it. Mr. Campbell, while acknowledging talking about basketball and other sports to Petitioner, denies ever making such a comment and further states that he cannot envision how to explain Respondent's Quarterback Rating System via a basketball analogy, because it is distinctly based upon the game of NFL football (which has a quarterback) and is not comparable to the game of basketball (which does not have a quarterback and does not use a similar rating system). After weighing the credibility of the witnesses, the undersigned finds Mr. Campbell's explanation of any basketball reference to be credible and such explanation is accepted. Petitioner acknowledges that he never complained to Mr. Fowler about any racial remarks or discrimination at any time during his employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of January, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 14th day of January, 2005.
The Issue Whether or not on or about the 17th day of June, 1976, on the Respondent's licensed premises located at 1080 Cassat Avenue, Jacksonville, Florida, the Respondent, its agent, servant and employee, one Sandra Rhea Alexander, did unlawfully engage in open and gross lewd and lascivious behavior with a male customer, one John Dewey Currington, by dancing in a topless manner, rubbing her pubic region on his, fondling her buttocks and allowing him to kiss her breasts, in violation of Section 798.02, F.S. thereby violating Section 561.29, F.S. Whether or not on or about the 17th day of June, 1976, on the Respondent's licensed premises located at 1080 Cassat Avenue, Jacksonville, Florida, the Respondent, its agent, servant and employee, one Cathy Anderson Hanes, did unlawfully engage in open and gross lewd and lascivious behavior with two unidentified white male customers by dancing in a topless manner, rubbing her pubic region on theirs, having her buttocks fondled, her breasts kissed and playing with the penis of one of the customers in violation of Section 798.02, F.S. thereby violating Section 561.29, F.S. Whether or not on or about the 17th day of June, 1976 on the Respondent's licensed premises located at 1080 Cassat Avenue, Jacksonville, Florida, the Respondent, its agent, servant and employee, one Bobbi Jean Webb, did unlawfully engage in open and gross lewd and lascivious behavior with Beverage Officer B. W. Rowe by dancing in a topless manner, rubbing her buttocks in lap, and rubbing his pubic region with her hands, in violation of Section 798.02, F.S. thereby violating Section 561.29, F.S.
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 4-COP held with the State of Florida, Division of Beverage. On June 17, 1976, a dancer in the licensed premises, one Sandra Rhea Alexander, danced for a customer, John Dewey Currington. She did the dance by approaching Currington, who was seated, and spread his legs apart and stood between his legs and moved her body up and down simulating intercourse. She was dressed without any top clothing; however, she was clothed on the lower part of her body and the patron was clothed. In the course of this dance, the pubic regions of the dancer and the patron were touching and the patron was fondling the buttocks of Ms. Alexander. Neither of these individuals attempted to stop the conduct of the other. On June 17, 1976, in the licensed premises, one Cathy Anderson Hanes was dancing. In the course of her dancing, she danced separately for two unidentified white male customers. Before commencing to dance, she took the top off which she was wearing and danced for the duration of two or three songs for the first male customer. Ms. Hanes then moved over to the location of the second male customer and performed with her top off. In the course of the dance she spread the legs of the customer who was seated against the wall and stood between his legs making an up and down motion while placing her pubic area against that of the male customer. On June 17, 1976, Officer B. W. Rowe of the Division of Beverage, State of Florida, entered the subject licensed premises. Officer Rowe took a seat and was approached by a dancer known as Bobbi Jean Webb. She removed the top part of her costume and while in the topless state, danced for Officer Rowe and in the course of the dance, rubbed her buttocks in his lap by placing her buttocks on his legs while Officer Rowe was seated. This occurred three times during the course of the dance. At the dancer's request, Officer Rowe had paid her $3.00 for the dance. While the above described activities were transpiring, there was a barmaid in the licensed premises as an employee. Neither the barmaid nor any other persons tried to stop the course of conduct which has been described heretofore.
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 60 days to run concurrently with the sentences in Division of Administrative Hearings' Case nos. 76-1987 and 76-1984. 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 725 Bronough Street Tallahassee, Florida 32304 Harry Katz, Jr., Esquire 337 E. Forsyth Street Jacksonville, Florida 32202
Findings Of Fact On May 11, 1977, at an establishment advertised as Mr. Big Stuff's Bedroom, female topless dancers were observed either straddling customers legs or dancing between customers legs while either placing their breasts close to or touching the customers' faces. No evidence was introduced purporting to establish that any of the performers were agents, servants or employees of Central Florida Clubs. Accordingly, it is found, as a matter of fact, that the performers were not agents, servants or employees of Central Florida Clubs. No evidence was introduced purporting to demonstrate whether, to the average person applying contemporary community standards, the dominant theme of the dance, taken as a whole, appealed to prurient interests. Accordingly, it is found, as a matter of fact, that to the average person, applying contemporary community standards, the dominant theme of the dance presented at Mr. Big Stuff's Bedroom, taken as a whole, did not appeal to prurient interests. No evidence was introduced purporting to demonstrate whether Mr. Big Stuff's Bedroom was operated under the auspices of the licensee, Central Florida Clubs. Accordingly, it is found, as a matter of fact, that Mr. Big Stuff's Bedroom was not operating under the auspices of the licensee, Central Florida Clubs. On May 11, 1977, an unidentified person declared that if one drink were purchased, then a second drink, at a reduced price, would be provided for a waitress. No evidence was introduced as to the identity of the person nor purporting to establish that such person was an agent, servant or employee or entertainer of Central Florida Clubs. Accordingly, it is found, as a matter of fact, that the unidentified person was not an agent, servant, employee or entertainer of Central Florida Clubs. No evidence was introduced purporting to establish that Harold Ernest Squires, Jr., was an agent, servant or employee of Central Florida Clubs, or that Harold Ernest Squires, Jr., did knowingly permit one Joyce Marie Polakowski to loiter in or about the licensed premises for the purpose of begging or soliciting a person, customer or visitor, to purchase a beverage. Accordingly, it is found, as a matter of fact, that Harold Ernest Squires, Jr., was not an agent, servant or employee of Central Florida Clubs and that Harold Ernest Squires, Jr., did not knowingly permit Joyce Marie Polakowski or any other person to loiter in or about the license premises for the purpose of begging or soliciting a customer to purchase a beverage.
The Issue Whether or not on or about the 11th day of June, 1976, on the Respondent's licensed premises located 5916 Phillips Highway, Jacksonville, Florida, the Respondent, its agent, servant or employee, one Myra Kathryn Watkins, did unlawfully engage in open and gross lewd and lascivious behavior with a male customer, one Patrick Francis Murphy, by dancing in a topless manner while rubbing her pubic area on his and allowing him to kiss her breasts, in violation of s 798.02, F.S., thereby violating s 561.29, F.S. Whether or not on or about the 11th day of June, 1976, on the Respondent's licensed premises located at 5916 Phillips Highway, Jacksonville, Florida, the Respondent, its agent, servant or employee, one LaMae Simpson, did unlawfully engage in open and gross lewd and lascivious behavior with a male customer, one William Wehrmann, by dancing in a topless manner while allowing him to place U.S. currency into her g-string and fondle her legs, in violation of s 798.02, F.S., thereby violating 56l.59, F.S. Whether or not on or about the 11th day of June, 1976, on the Respondent's licensed premises located at 5916 Phillips Highway, Jacksonville, Florida, the Respondent its agent, servant or employee, one Ellen Marie Collins, did unlawfully engage in open and gross lewd and Lascivious behavior with Vice Officer H. R. Hall by dancing in a topless manner while rubbing her pubic region and buttocks on his lap and attempting to place her breasts into his mouth, in violation of s 798.02, F.S. thereby violating s 561.29, F.S.
Findings Of Fact At all times material to the allegations found in the Notice to Show Cause, the Respondent, G and B of Jacksonville, Inc., trading as Climax, located 5916 Phillips Highway, Jacksonville, Florida, was licensed under License No. 26- 780, Series 4-COP, held with the State of Florida, Division of Beverage. On June 11, 1976, one Myra Kathryn Watkins was working as a dancer for the licensee in the subject licensed premises. One of the customers for whom she was dancing was Patrick Francis Murphy. Murphy paid her $10.00 to dance the duration of five records for him. During the course of these dances, on more than one occasion, Murphy kissed the bare breasts of Watkins and she allowed this to occur. On June 17, 1976, one LaMae Simpson was working as a dancer for the licensee in the subject licensed premises. She was dancing topless and wearing a g-string. One of the patrons for whom she danced was William Wehrmann. While standing in the vicinity of where Wehrmann was located, she allowed Wehrmann to fondle her legs with his hands and, at some point in time, held her g-string costume away from her body to allow him to place some form of currency into the area of the g-string with his hand. On June 11, 1976, Officer H. R. Hall of the Jacksonville Sheriff's Office entered the subject licensed premises. While seated at a table in the premises, he was approached by one of the dancers working there, Elaine Marie Collins. Collins asked if Hall would like her to dance for him. Hall agreed to do this and paid $2.00 for the dance. Collins danced topless for Hall and on four or five occasions during the course of the dance, tried to place her breasts in Hall's mouth. She also rubbed her buttocks over his groin area. During the course of the activities described above, as entered into by the named dancers, no attempts were made by the employees within the licensed premises to stop this activity.
Recommendation It is recommended that the license of the Respondent, G and B of Jacksonville, trading as Climax be revoked. 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 725 Bronough Street Tallahassee, Florida 32304 Harry Katz, Jr., Esquire 337 E. Forsyth Street Jacksonville, Florida 32202
The Issue The issue is whether Dr. Wise abused his position as a treating psychiatrist for five young women by using his influence over them to engage in sexual relationships with them in violation of Section 458.331(1)(k), Florida Statutes, (1979), [now codified as Section 458.331(1)(j), Florida Statutes (1987)] and whether he is therefore guilty of unprofessional or immoral conduct in violation of Section 458.1201(1), Florida Statutes, (1969) [now codified as Section 458.329, Florida Statutes, (1987)]. If Dr. Wise is guilty of any of these activities, he would also be guilty of violating Section 458.331(1)(x), Florida Statutes (1987), which proscribes the violation of any portion of Chapter 458. Sexual misconduct with patients would also constitute gross or repeated malpractice, which is forbidden by Section 458.331(1)(t), Florida Statutes (1987).
Findings Of Fact At all times material to the Administrative Complaint, Dr. Wise has been a licensed medical doctor, holding license ME0008520. He has been licensed in Florida since 1957 and practices in the area of Adult and Child Psychiatry in Miami. He has been a board certified psychiatrist in since 1965. Patient L. H. From July 1969 through April 1971, Dr. Wise treated L.H, who was 21 years of age. When she began treatment, she was experiencing panic attacks and had other problems resulting from sexual molestation as a child, rape, alcoholism, and family problems. At first she had visited Dr. Wise weekly, but toward the end of her 1 1/2 years of therapy, she saw him every other week. L.H. alleges that shortly before she terminated her treatment with Dr. Wise she had a severe panic attack which caused her to telephone Dr. Wise, who then offered to provide therapy at Dr. Wise's apartment. When she arrived, she says Dr. Wise was in his bathrobe, took her to the bedroom, told her to place her hand on his penis and had sexual relations with her. She also maintains that Dr. Wise saw her on one other occasion in his office, when no sex occurred. L. H. said nothing about Dr. Wise's conduct at the time the incident was to have taken place. Fourteen years later, L.H. was seeing a psychologist in St. Louis, Missouri, Dr. Gertrude Williams. In the course of therapy with Dr. Williams, L.H. stated that she had sexual intercourse with Dr. Wise while she was his patient. This disclosure to Dr. Williams is consistent with the testimony L. H. gave at the final hearing. In October of 1985, L.H. filed a complaint against Dr. Wise with the South Florida Psychiatric Society alleging sexual misconduct, but after a two-day hearing a panel of twelve doctors found against L.H. and in favor of Dr. Wise. The testimony of L. H. was no more persuasive in this case than it was before the Psychiatric Society. In October, 1985, L.H. also filed a complaint which the Department investigated, but found the charges unsubstantiated. No disciplinary action was initiated against Dr. Wise at that time. The evidence in the instant case with respect to the allegations of misconduct by Dr. Wise with L.H. was not clearly convincing or persuasive. Patient S.P. Dr. Wise treated S.P. from July, 1980 through July, 1981 at his office in Miami. She was then approximately 19 years old and had complaints of nervousness, insomnia and hyperventilation. She saw Dr. Wise approximately two times per week (on Tuesdays and Thursdays) for therapy. Although originally seen in the morning, her appointments were changed to late in the afternoon. S.P. alleges that within two months after beginning treatment, while she was sitting on the couch during a therapy session, Dr. Wise got up from another couch, sat down next to her and began to kiss her. She also alleges that during subsequent visits Dr. Wise had sexual intercourse with her. S.P. filed a civil lawsuit for malpractice against Dr. Wise alleging the same sexual misconduct alleged here as the basis for her damage claim. After a jury trial, the jury returned a verdict in favor of Dr. Wise. S.P.'s marriage failed while she was seeing Dr. Wise. She had often stayed out late, and told her husband that she was at therapy sessions with Dr. Wise. It is not clear whether these late night absences from home were actually the result of appointments with Dr. Wise or were the result of other appointments which she justified to her husband by claiming they were appointments with Dr. Wise. After terminating treatment with Dr. Wise, S.P. began seeing a Roman catholic priest who was also trained as a counselor. She told him that she had been seeing a local psychiatrist who, after a few sessions, had engaged in sexual intimacy with her. After moving back to her mother's home due to her breakup with her husband, S.P. also told her mother that she and Dr. Wise had been sexually intimate. These statements by S. P. were consistent with her testimony at final hearing; that the testimony is consistent, however, does not make it persuasive. Taken as a whole, the evidence that Dr. Wise may have engaged in a sexual relationship with S. P. is not clearly convincing. Patient L. M. Dr. Wise treated L.M. during the period from late 1972 through February of 1973. She was sixteen years old and was seeking to improve her relationship with her parents. She alleges that during one of her early visits Dr. Wise questioned her about the pimple on her forehead, and asked whether she had pimples on any other area of her body. She says she responded that she had a pimple on her back, and alleges that Dr. Wise then asked to see her back. When she lifted her pullover, she says Dr. Wise fondled her breasts briefly. Viewing the testimony of L.M. as a whole, the evidence is not clearly convincing that Dr. Wise ever fondled her breasts. Patient K. M. Dr. Wise treated K.M. from 1982, when she was 18 years old, until 1984. K. M. came to see Dr. Wise because of problems including an abortion she had when she was 15 years old, as well as a prior incestuous relationship with her brother. K.M. testified that she would go to Dr. Wise's office for treatment late in the evening, when they also would engage in sexual intercourse. She also testified that in 1985, after she terminated her therapeutic relation with Dr. Wise, she told her general practice physician, Dr. Peter Shea, during an office visit, that she had an affair with Dr. Wise. As with the foregoing witnesses, the statement made to Dr. Shea is consistent with K. M.'s testimony at final hearing, but that consistency does not enhance K. M.'s testimony. The testimony of K.M. concerning liaisons with Dr. Wise is not clearly convincing. Patient L. G. L.G. saw Dr. Wise beginning in April, 1974 when she was 21 years old. When she first came to Dr. Wise she complained of depression, unhappiness, and confusion. She told Dr. Wise that she was lonely and did not have a good relationship with men. Dr. Wise also treated L.G.'s sister, Joan. After about two months of seeing her on a weekly basis, L.G. alleges that Dr. Wise came over to the couch where she was sitting, embraced her, and during the course of the treatment, their physical relationship became more intimate. The intimacies were to have included oral sex which L.G. performed on Dr. Wise, which she thought was therapy for her psychological problems with sexual intimacy. L.G. terminated her relationship with Dr. Wise and began seeing a psychologist at the University of Miami, Edward Rappaport. During the course of treatment L.G. reported to Dr. Rappaport that she had been sexually involved with Dr. Wise. The testimony of L.G. at final hearing is consistent with the statement she made to Dr. Rappaport during therapy that Dr. Wise engaged in sex with her while she was seeing Dr. Wise for professional help. The consistency of the testimony does not make it persuasive. Considering the testimony of L.G. and Dr. Rappaport, the evidence offered to show that Dr. Wise had engaged in sexual intimacies with L.G. while she was seen as a patient is not clearly convincing.
Recommendation It is RECOMMENDED that the Board of Medicine enter a Final Order dismissing the second amended Administrative Complaint filed against Respondent. DONE AND ENTERED this 22rd day of May, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY 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 22rd day of May, 1989. APPENDIX The following constitutes my rulings on Proposed Findings of Fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1987). Rulings on Findings of Fact Proposed by the Department of Professional Regulation Covered in finding of fact 1. Covered in finding of fact 1. Accepted in findings of fact 2, 6, 10, 11 and 12. Covered in finding of fact 11. 6-7. Rejected for the reasons stated in finding of fact 11. Rejected as unnecessary. Covered in finding of fact 9. Rejected as unnecessary. Rejected as unnecessary. Covered in finding of fact 11. 13 Covered in finding of fact 6. Covered in finding of fact 7, of the facts stated that are rejected. Rejected because the testimony of S.P. was not clearly convincing. Covered in finding of fact 9. Covered in finding of fact 9. The proposals concerning the telephone calls are rejected as unnecessary. Rejected because the testimony of S.P. was not clearly convincing. Covered in finding of fact 9. Rejected as subordinate to finding of fact 9. Rejected as subordinate to finding of fact 9. Covered in finding of fact 9. Covered in finding of fact 9. To the extent necessary, covered in finding of fact 24. The proposal concerning the telephone calls is rejected as unnecessary. Rejected as unnecessary. 26.-29. To the extent necessary, covered in finding of fact 10. Rejected as unnecessary. Covered in finding of fact 12. Rejected as unnecessary. Covered in finding of fact 13, although the proposals are rejected because L.G.'s testimony was not clearly convincing. Rejected as unnecessary. Rejected because the testimony of L.G. is not clearly convincing. Rejected as unnecessary. 37.-38. To the extent necessary, covered in finding of fact 13. 39. Rejected as unnecessary. 40. Covered in finding of fact 13. 41.-42. Rejected because the testimony of L.G. was not clearly convincing. 43. Covered in finding of fact 2. Covered in finding of fact 3, although the proposed findings are rejected. Covered in finding of fact 3, although the proposed findings are rejected. Covered in finding of fact 3. Covered in finding of fact 4. Rejected as unnecessary. Rejected because of the testimony of the complaining witnesses has not been clearly convincing. 50.-53. Rejected as unnecessary. 54. Rejected as unnecessary. Rulings on Findings of Fact Proposed By Dr. Wise Rejected as unnecessary. Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 2 Covered in finding of fact 4. Covered in finding of fact 5. Rejected as unnecessary. Covered in finding of fact 5. Covered in finding of fact 6. Covered in finding of fact 6. Rejected as unnecessary. Covered in finding of fact 7. Covered in finding of fact 8. Covered in finding of fact 11. Rejected as unnecessary. Covered in finding of fact 11. Rejected as unnecessary. Covered in finding of fact 11. Covered in finding of fact 12. Covered in finding of fact 12. Covered in finding of fact 12, to the extent necessary. Covered in finding of fact 14. Covered in finding of fact 10. Covered in finding of fact 10. Rejected as unnecessary. Covered in finding of fact 10. Rejected as unnecessary. COPIES FURNISHED: Susan Sewell, Esquire Law offices of Mark P. Lang 20 North Orange Avenue Suite 707 Post Office Box 2127 Orlando, FL 32802-2127 Jonathan King, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Kenneth D. Easley, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medicine 130 North Monroe Street Tallahassee, FL 32399-0750A =================================================================
Findings Of Fact At all times pertinent to the allegations herein, Respondent, Jacob Francis Miller, Jr., t/a Jake's Place, held 2-COP License No. 26-00705 for the consumption on the premises and package sales, located at 315 South McDuff Avenue, Jacksonville, Florida, of beer and wine. On January 27, 1983, John T. Lachman, an investigator with Petitioner, Division of Alcoholic Beverages and Tobacco, acting on a complaint of prostitution, lascivious conduct, and soliciting for drinks at Respondent's place of business, entered the premises in the evening, purchased a beer, and sat down at one of the tables. On this occasion, he was alone. Shortly thereafter, he was approached by a white female employee of the Respondent, Monica L. Todd, who was wearing a bikini bottom-and-top dancing outfit. She asked Lachman if she could dance for him and, when he agreed, she did so through four songs. Each dance lasted the length of one song. During each of the dances, which she accomplished while standing between his legs while he was seated on the chair, she would alternate between facing him and turning her back to him. When her back was toward him, she would rub her buttocks against his groin. After the four dances, he paid her her fee of $10. Lachman came back to this bar on February 17, 1983. This time, he was in the company of Beverage Agent Wilder and Deputy Sheriff Bennett. The three men purchased beers and went to sit at a table. Shortly, they were approached by Maudine Smith, a white female who was wearing a bikini bottom-and-top dancing costume. She offered to dance for them, and Lachman agreed for her to do two dances, for which she charged him $5. Again, she danced between Lachman's legs while he was seated; and while her back was toward him, she rubbed her buttocks in his groin area. When she faced him, she removed her top and rubbed her bare breasts in his face. Monica Todd also danced for Lachman on February 17, 1983. During her dance, which was accomplished between his legs while he sat on the chair, she rubbed her buttocks in his groin. There was no evidence to show that she removed her top and rubbed her breasts in his face. However, for her dance, she was paid $3. A third dancer entertained Mr. Lachman on February 17, 1983. Linda Jean Ford came over to him, sat on his lap, and asked him if she could do a $5 dance for him. When he asked her what that was, she replied she would have to show him. He paid her the $5, whereupon she took off her bikini top and danced for him, standing between his legs and alternately rubbing her breasts in his face and her buttocks against his groin. That same evening, Lachman also saw Ford and Smith dance for Mr. Bennett, who was sitting three to four seats (approximately 10 feet) away from him. Lachman observed Ford rub her naked breasts in Bennett's face and her buttocks against his groin while she was dancing for him. He also saw Smith rub her buttocks in Bennett's groin area during her dance. The lighting in the bar on this occasion was good enough for Lachman to see the farthest reaches of the establishment. There were six or seven patrons in there while all this was going one--some at the bar and some at the tables attended by a bartender who was identified as Santiago Santiago. It was obvious that the bartender could see what was going on, but neither he nor anyone else in the place made any effort to stop this dancing. Respondent was not in the bar while Lachman was there on either January 27 or February 17, 1983. Investigator Wilder, as was stated above was in Respondent's establishment with Lachman on February 17, 1983, and was treated to similar action by Ms. Smith, who did three dances for him. The first one Lachman paid for; and during her dance, she rubbed her naked breasts in his face. During the second and third dances that evening, for which Wilder himself paid her $5, she alternated rubbing her naked breasts in his face with rubbing her buttocks in his groin area. As a special added attraction during the third dance, she also put her foot up on the edge of his chair between his legs and rubbed the top of her foot against his groin. After the third dance, Smith went away and came back about five minutes later, again asking if she could dance for Wilder. When he declined this offer, she said, "Well at least you can buy me a drink." Wilder agreed to this and gave her $2. She immediately took it, went over to the bar with it, and then took her favors off to another customer. Respondent does not deny the occurrences alleged. He contends, however, he was not aware of it at the time or of the likelihood it would take place. He was not present in the bar on either occasion and generally works from noon to 7:00 p.m., coming in again at 2:00 a.m. to close up. Respondent opened the bar upon his separation from the Navy in 1982. It is a small neighborhood establishment that employs only one bartender. When he started his business and was approached by the girls who wanted to dance in his bar, he told them he was going to run a clean place. However, though he did no background investigation of many of the girls he hired, he was familiar enough with that type of person and their proclivities to have them sign a statement of house policies that included prohibitions against drugs, prostitution, soliciting drinks, touching of customers, and husbands or boyfriends in the bar during working hours. In light of that, it is hard to conclude he did not know the risks involved in allowing that type of person to work in the bar, especially considering his Navy service. Respondent maintains a personal friendship with Deputy Sheriff Bennett, who comes into the bar periodically. Respondent contends he has requested that Bennett arrest any of the girls working in the bar who are seen doing the kind of activity complained of here. Respondent also contends he is not familiar with the practices of Petitioner, and the former district supervisor's approach to him regarding these violations was foreign to him. He relates that Capt. Caplano suggested Miller "make an offer to keep [the] bar open." As a result, he signed a stipulation which called for a letter of warning and immediately terminated the dancers. When he did that, his business dropped immediately and he put the place up for sale. To facilitate the sale, his business broker advised him to start it again so that prospective buyers could see customers in the place. As soon as he did that, his proposed settlement was disapproved and a hearing was set up.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED THAT: Respondent pay an administrative fine of $500. RECOMMENDED this 9th day of May 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 9th day of May 1984. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Jacob F. Miller, Jr. 315 South McDuff Avenue Jacksonville, Florida 32205 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether respondent's alcoholic beverage license should be disciplined on grounds that (1) illicit drugs were sold and delivered on its premises by its agents and employees, and (2) its premises was used for the selling and delivery of illicit drugs.
Findings Of Fact Butch Cassidy's Saloon Licensee, 1431 Corporation, owns a business known as Butch Cassidy's Saloon located at 1431 North Federal Highway, Dania, Florida. In connection with its operation of Butch Cassidy's, Licensee holds alcoholic beverage license No. 16-02422 series 2-COP. Under this license, Licensee sells beer and wine for on-premises consumption. Soft drinks and sandwiches are also served. The entertainment consists of female nude dancers who perform to juke box music. Licensee is owned by Don Austin and George Sherman. Austin and Sherman operate and manage Butch Cassidy's Saloon; they alternate work shifts so that, except for short temporary absences, one or the other is always on the premises. The premises contain a bar, a stage and runway for the female dancers, two dressing rooms, a business office, and rest rooms. It is dimly lit, though not completely dark; the lighting is most pronounced above the pool tables and along the length of the dance stage. II. Sale or Delivery of Controlled Substances on Premises On August 10, 1981, at approximately 11:30 p.m., Beverage Officer L. Terminello entered Butch Cassidy's Saloon ("the premises") with a confidential informant. After sitting at the rear of the premises, he asked "Connie," a female dancer employed by Licensee, if she' could sell him some quaalude tablets; she answered affirmatively. Several minutes later, she returned and handed him five tablets; he paid her $15. Subsequent laboratory analysis of the tablets by the Broward County Sheriff's Office revealed the presence of diazepam. (Testimony of Terminello; P-16.) On August 12, 1981, at approximately 9:40 p.m., Officer Terminello again entered the premises and sat at a table at the rear. After some initial conversation, a customer known as "Jerry" asked him if he would buy some ludes"; Terminello agreed. Jerry placed the tablets on Terminello's table. Terminello picked them up and gave him $3 for each tablet. Subsequent laboratory analysis of the tablets revealed the presence of diazepam. (Testimony of Terminello; P- 15.) Later on that evening (August 12, 1981), Connie, in response to Officer Terminello's request, sold him another quaalude tablet for $2. The transaction took place, again, at a table located opposite the stage, at the rear of the premises. Subsequent laboratory analysis of the tablet revealed the presence of diazepam. (Testimony of Terminello; P-17.) On August 15, 1981, at approximately 11:30 p.m., Officer Terminello again entered the premises and sat at a table at the rear. He asked a female dancer known as "Dusty" (who was employed on the premises) whether she had any cocaine or quaaludes. She said she had none but offered, instead, a marijuana cigarette which she took from her pocketbook and handed him. He left her a tip of $1 for the cigarette. This drug transaction occurred in the vicinity of the pool table, an area which is well-lighted in relation to other parts of the premises. Subsequent laboratory analysis of the cigarette confirmed that it contained cannabis. (Testimony of Terminello; p-18.) On August 19, 1981, at approximately 10:40 p.m., Officer Terminello reentered the premises and sat at another table in the vicinity of the pool table. He again asked Dusty, a female dancer, if he could buy some cocaine. She said he might be able to purchase some from "Don," the doorman, but that he sold a lot of cocaine by "stepping on it"--a street term for cutting cocaine. She told him that another dancer, known as "Renee," could provide better cocaine; he decided to wait for Renee. While waiting, he asked Dusty if she would sell him some quaalude tablets; she agreed and delivered two tablets to him at his table. He paid her $3 each. Subsequent laboratory analysis of the tablets revealed the presence of diazepam. (Testimony of Terminello; P-19.) Dusty then asked Terminello if he wanted to smoke a "joint," meaning a marijuana cigarette. They then walked outside to the parking lot and smoked the cigarette. Subsequent laboratory analysis indicated that the cigarette contained cannabis. (Testimony of Terminello; P-20.) Later that evening, at about 1:00 a.m., Officer Terminello returned to the premises and contacted Dusty for the cocaine promised earlier. Dusty went over and talked to Renee, then returned to Terminello's table near the pool table. She told him that the cocaine would cost $80. He handed her $80 which she placed in her pocketbook. Shortly thereafter, she returned from a dressing room and handed him a plastic bag containing white powder. This exchange took place in an area where there were 15-20 patrons; several of them were 2-3 feet from Terminello. Subsequent laboratory analysis of the powder revealed the presence of cocaine. (Testimony of Terminello; P-21.) A short time later, Renee asked Officer Terminello if he wanted to purchase more cocaine; he replied that he would buy another one-half gram. After completing her performance on the dance floor, she agreed to sell him one- half gram for $40. At her request, he placed $40 in her garter belt; shortly thereafter, she returned from the dressing room and handed Terminello a white zip-lock bag of white powder. This transaction took place in a relatively well- lighted area, with a clear line-of-sight to the dance stage and bar. Subsequent laboratory analysis of the powder revealed the presence of cocaine. (Testimony of Terminello; P-22.) Officer Mike Berk of the Broward County Sheriff's Office entered the premises (with Terminello) at approximately 12:30 a.m., on August 20, 1981. After sitting at a table near the dance stage, he asked a female dancer (employed by Licensee) known as Robin" if he could buy some quaaludes; she handed him one white tablet. This exchange took place in a relatively well- lighted area of the bar. Subsequent laboratory analysis of the tablet revealed the presence of diazepam. (Testimony of Berk; P-23.) On August 29, 1981, at approximately 11:45 p.m., Beverage Sergeant George Miller entered the premises, sat at a table near the dance stage, and asked a female dancer (employed by Licensee) known as "Jackie" if she could get him some quaaludes. She asked him to wait. Approximately an hour later, she indicated that she could obtain some quaaludes; she approached the bartender (employed by Licensee) known as "Rusty." He removed a tablet from his pocket, laid it on the bar, and cut it in half. He handed one-half of the tablet to Jackie who returned to the table and handed it to Miller. Subsequent laboratory analysis ,of the one-half tablet revealed the presence of diazepam. (Testimony of Miller; P-24.) On September 2, 1981, Sergeant Miller reentered the premises, sat at a table near the dance stage and was joined by a female dancer (employed by Licensee) known as "Candy." From her seat, she shouted to Dusty, the bartender (who was approximately 10 feet away) : "Make some calls for some ludes, I want to get f cked up." (Testimony of Miller.) On September 10, 1981, at approximately 8:15 p.m., Beverage Officer Mike Imperial entered the premises, sat at the bar and asked Connie (a female dancer) if there were any "ludes" around. She replied that she didn't know but she would check. She then asked Jackie who, in turn, said she would check with "Ann," another female dancer employed by Licensee. Jackie then returned and said that no one had any quaaludes. Connie then told Imperial that she would be off-duty the next day but that she would leave six quaaludes for him with Tom, the bartender. She then told the bartender that she would leave something with him to give to Imperial (and his companion) the next day. (Testimony of Imperial.) The next day, September 11, 1981, at approximately 7:20 p.m., Officer Imperial reentered the premises and spoke with Tom, the bartender. Tom told him that Connie had not arrived yet, that he would check around the bar but that he doubted anyone had quaaludes because it was too early. Imperial then departed the premises. (Testimony of Imperial.) The next day, September 12, 1981, at approximately 7:00 p.m., Officer Imperial (accompanied by a confidential informant) returned to the premises. They sat at the bar, where Tom, the bartender, told them that the quaaludes were not then available but would be there soon. Shortly thereafter, Tom went to the rest room, then returned to the bar and handed Imperial ten white tablets wrapped in a bar napkin. Tom then handed the informant (who accompanied Imperial) a loose tablet and openly stated, "Here's one for the road." Subsequent laboratory analysis of the tablets revealed the presence of methaqualone. (Testimony of Imperial; P-25.) On September 23, 1981, at approximately 8:30 p.m., Beverage Officer Imperial (with his confidential informant) reentered the premises, sat at the bar, and asked a female dancer (employed by Licensee) known as "Gail" if there was any "pot" around. She replied that she would see if she could find him some; later, she returned and handed the confidential informant two cigarettes. Subsequent laboratory analysis of the cigarettes revealed the presence of cannabis. (Testimony of Imperial; P-26.) On September 28, 1981, at approximately 4:10 p.m., Officer Imperial reentered the premises and sat at the bar. He observed an unidentified female dancer (employed by Licensee) approach Tom, the bartender, and ask if he had a "joint." Tom replied that he had one, then removed a partially smoked cigarette from his wallet and handed it to the dancer. She placed it in her mouth and asked him for a light; he replied, "Don't do that here, I'm already on probation." The dancer then departed, saying that she would smoke it in the dressing room. Several patrons were nearby when this exchange took place. (Testimony of Imperial.) III. Open, Persistent, and Recurring Nature of Illicit Drug Activity on the Premises The illicit drug transactions described were open, persistent, and recurring; they took place in fairly well-lighted areas of the premises. The actions of Licensee's employees who engaged in such activities can fairly be described as practiced and routine. When undercover law enforcement officers asked for illicit drugs, the employees actively cooperated in an effort to accommodate them. The drug activity on the premises was not isolated or limited to one or two employees; it was pervasive during the evening hours, involving at least six different employees or agents. Drugs were either available on the premises or readily obtainable. During the course of the two-month investigation, at least ten illicit drug transactions took place on the premises. (Testimony of Terminello, Imperial, Berk, Miller.) However, no evidence was presented which established that, during the time in question, illicit drugs were actually used on the premises. Several customers testified that they had never seen anyone selling, buying, or using drugs on the premises, that no one had ever approached them attempting to buy or sell drugs. 2/ (Testimony of Leighton, Redgate, Johns, Smith, Bushmann.) George Sherman and Don Austin, owners and operators of the bar, testified that they had a policy against the use or sale of drugs on the premises; that they advised new employees of this policy, posted a sign in the dressing room restating the policy, 3/ and fired employees who violated it. However, the practiced and recurring nature of the drug transactions demonstrates that their anti-drug policy was not diligently and aggressively implemented. The drug transactions took place in a relaxed atmosphere of permissiveness. The employees made little effort to conceal the transactions; drug use was openly discussed and joked about. Neither George Sherman nor Don Austin were personally involved in any of the drug transactions in question. However, they failed to aggressively monitor and supervise their employees; they failed to effectively emphasize that drug activity on the premises would not be tolerated. Their lack of diligence in this regard allowed their employees to develop an attitude which fostered illicit drug activity on the premises. (Testimony of Sherman, Austin, Terminello, Berk, Miller, Imperial.) The open, persistent, and practiced nature of the drug transactions on the premises supports an inference that, if Austin and Sherman did not know that they were occurring, they should have known with the exercise of reasonable diligence. (Testimony of Terminello, Berk, Miller, Imperial.) During the 4 1/2 years it has operated the premises, the Licensee has not been found guilty of violating the beverage law or any other law of this State. (Testimony of Sherman, Austin.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division of Alcoholic Beverages and Tobacco suspend respondent's beverage license for 120 days. DONE AND RECOMMENDED this 23rd day of December, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1981.
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 This case concerns the issue of whether Respondent's beverage license should be suspended, revoked or otherwise disciplined for permitting prostitution activity on his licensed premises. At the formal hearing the Petitioner called as witnesses John Harris, Kelvin Davis, Carlos Bauxalli, Lewis Terminello, Hugo Gomez, Louis Viglione, Keith Bernard Hamilton, and Alfonso Scott Julious. Respondent called as witnesses Isaac Dweck, Gary Arthur, Irene Madden, Collins Jones, Mary Scott, Debbie Heenan, Judy Pearson, Joe E. Clements, Cecil Rolle, and the Respondent himself, Eddie Lee Pittman. Petitioner offered and had admitted a videotape which was viewed during the hearing. Respondent offered and had admitted one exhibit. Petitioner also offered a composite exhibit containing police reports relating to the licensed premises for the years 1981 and 1982. That composite exhibit was admitted as hearsay to corroborate the testimony of the police officers relating to the reputation of the licensed premises. These police records were of very limited probative value and no finding of fact was based upon these records. Neither party submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer.
Findings Of Fact At all times material to this proceeding the Respondent, Eddie Lee Pittman, was the holder of beverage license No. 23-371, Series 2-COP. The license is issued to the licensed premises at 1772 N.W. 79th Street, Miami, Dade County, Florida, and was originally issued to Respondent on October 6, 1965. On the evening of March 22, 1983, Beverage Officer Kelvin Davis visited the licensed premises, Eddie's Dive Inn, in an undercover capacity to investigate possible prostitution activity in the licensed premises. Officer Davis was accompanied by Beverage Officer Eddie Bauxalli. After entering the licensed premises Officer Davis was approached by a white female named Elnora Moore who engaged him in conversation. The conversation led to a discussion of voter registration cards and Ms. Moore stated that a voter registration card could get you out of jail on a misdemeanor charge. Officer Davis asked why she needed a card for that purpose and Ms. Moore said because of solicitation. She then asked Officer Davis if he would like to be solicited and asked how much money he had. He responded that he had twenty dollars and she said that would get him a "straight." "Straight" is slang or street language for sexual intercourse. He agreed to the price but told her he also had a friend (Officer Bauxalli). Ms. Moore offered to service both men for $100. Officer Davis and Officer Bauxalli agreed to this offer and the three of them prepared to leave. The conversation between Ms. Moore and Officer Davis took place next to the bar where the officers were seated. This was approximately three to five feet from the cash register where the bartender on duty was working. The conversation took place in a normal tone of voice. As Officers Davis and Bauxalli and Ms. Moore began to leave, a white female named Peggy Schultz yelled across the bar to Officer Bauxalli and asked where he was going. Officer Bauxalli yelled back that he was going to have a good time. In response, Ms. Schultz yelled back "How can you have a good time without a date?" Officer Bauxalli responded that he would figure something out. At this point Ms. Schultz walked over to Officer Bauxalli. Ms. Schultz asked Officer Bauxalli if he wanted a "date" and he asked what is a "date." She responded that a "date" is a "straight" for $20 or a "straight" and a "blow job" for $25. He agreed to a "date" and Ms. Schultz then told him to drive around to the back and she and Ms. Moore would meet them at the back door. She also stated that the owner did not like the girls to go out the front door. Officers Bauxalli and Davis then left the bar, drove around to the back door of the licensed premises and picked up Ms. Moore and Ms. Schultz, who were waiting just inside the back door of the lounge. While Officers Bauxalli and Davis were in the licensed premises, the bar was pretty crowded and there was a lot of noise from people talking. At the time Ms. Schultz solicited Officer Bauxalli, she spoke in a normal tone of voice while they stood approximately four or five feet from the cash register on the bar. Ms. Schultz was dressed in a low-cut blue silky dress that was made of a material which you could easily see through. She was wearing only panties underneath the dress. The owner, Mr. Pittman, was observed in the licensed premises on the evening of March 22, but there was no evidence that he observed or overheard any of the discussions between the two beverage officers and Ms. Schultz and Ms. Moore. On the evening of September 17, 1983, at approximate1y. 10:A5 p.m., Beverage Officer Louis J. Terminello went to the licensed premises in an undercover capacity. Immediately upon entering the licensed premises he was approached by a white female named Michelle Orfino. The bar was pretty crowded and there were a number of females in the bar and poolroom area who by their dress appeared to be prostitutes. These women were mingling with the men at the bar and in the poolroom area. A number of couples were exiting through the back entrance. When Ms. Orfino approached Officer Terminello, she walked up to him and asked if he was looking for a "date." He asked her what a "date" was and she said "a blow job." She then asked if he wanted one and Officer Terminello responded "yes." She told him the price would be $20 plus $5 for the room. As they had been talking Officer Terminello, accompanied by Ms. Orfino, walked into the poolroom area. After agreeing to the price, Officer Terminello took Ms. Orfino by the arm and started to walk out the front door of the lounge. She stopped him and said that they had to use the back door because Eddie does not allow them to leave through the front door. She then told him to drive around back and Officer Terminello responded that his car was just outside the back door. She then walked with him out the back entrance and into the parking lot. As they walked to his car Officer Terminello observed the Respondent, Eddie Pittman, in the parking lot. After driving away, Officer Terminello placed Ms. Orfino under arrest. Ms. Orfino was dressed in a very low-cut latex body suit. For at least three nights prior to September 17, Officer Terminello, while on surveillance, had observed a continuous pattern of a patron entering the bar, coming back out and driving his car to the rear entrance. A woman would then come out the back door, get in the car and they would drive away. Twenty minutes or so later the car would come back and the girl would get out and go back in. After the arrest of September 17, Officer Terminello returned to the bar in the early morning hours of September 18 to arrest two other women for prostitution. The Respondent had not been advised of the arrests on September 17. On the evening of September 15, 1983, Beverage Officer Louis Viglione went to the licensed premises, Eddie's Dive Inn. After entering the licensed premises he took a seat at the bar near the rear entrance. Shortly after entering, he was joined by two black females named Veronica and Angie. He purchased a beer for each of the two women and the three of them engaged in conversation about good times, good loving, and Pink House. The Pink House is a boarding house in the area where the licensed premises is located and is used by prostitutes for "dates." A "date" is a slang or street term used commonly by prostitutes to refer to sexual intercourse or other sexual acts for pay. During this conversation, Veronica stated that one hour with her would cost $40 or $50 and Angie stated that she charged $100 an hour. As an excuse, Officer Viglione then stated that he did not have enough money because he wanted two women at once. He remained in the lounge approximately one more hour and left. On this particular evening Veronica was wearing a short white dress and Angie was wearing a blue print dress with white stockings. Both were dressed in what Officer Viglione described as normal dress. Several other women in the lounge were dressed in a very provocative manner and appeared by their dress to be prostitutes. The lounge was approximately 3/4 full of patrons, but it was not particularly noisy or boisterous. There were also several women outside the front and rear entrances of the licensed premises who appeared to be prostitutes. The area where the licensed premises is located is an area which has a visible concentration of prostitutes and has a reputation as an area where prostitution is prevalent. At approximately 9:30 p.m. on September 16, 1983, Beverage Officer Keith Bernard Hamilton entered Eddie's Dive Inn. Upon entering the lounge, Officer Hamilton took a seat at the west end of the bar. There were approximately 40 or 50 male patrons in the lounge and at least 30 women. The women were scantily dressed in very revealing clothes and were observed by Officer Hamilton to be moving around the bar stopping and talking with the men. Several of the women left the bar after talking to one of the men who also left the bar. While seated at the bar, Officer Hamilton was approached by a young black female named Anna. Anna had been talking to a white male seated next to Officer Hamilton. She asked Officer Hamilton what he was interested in tonight. He asked what she had and she asked if he wanted to fuck. She also stated that for $35 plus $5 for the room she would give him a "suck and fuck." He said he would wait for a while and Anna left but returned several times during the evening. After Anna left, another woman walked up to Officer Hamilton and asked if he dated. He was short with her and she moved over and began talking to the white male seated next to him. A few minutes later, Officer Hamilton went to the bathroom and was stopped by a black female named Carol Lawrence. Ms. Lawrence stated that she needed money and asked if he could help her out. Officer Hamilton asked what did she have and Ms. Lawrence responded "a suck and fuck for $35." Officer Hamilton agreed to this but said he wanted to wait a while. She then left, but approached him at least three more times that evening. On the evening of September 16, 1983, there were three security guards at the licensed premises. They primarily remained outside where they regulated the crowd outside the lounge. One of the guards told one of the females that she shouldn't leave with a guy but should wait inside the rear door. The guard did not object to the woman and man leaving in the man's car. On this particular evening, the Respondent was present at the licensed premises until approximately 11:00 p.m. He was in and out of his office during the course of the evening. On September 17, 1983, at approximately 9:30 p.m. Officer Hamilton returned to the licensed premises, Eddie's Dive Inn. When Officer Hamilton entered the lounge, the Respondent was seated at the bar. The activity in the bar was about the same as the night of September 16, and there was a smaller crowd. There were about 20 women in the bar. These women were walking around the bar talking to the men. There was a man seated next to Mr. Pittman who was being kissed by one of the women. After kissing the man she moved on and began talking to another male patron. Shortly after entering the lounge one of the women in the lounge looked at Officer Hamilton and winked. Later, when Officer Hamilton was in the rear of the lounge near the bathrooms, be observed this same woman standing near the rear entrance. He asked her where she was going and she responded that she would be back. She then offered him a "suck and fuck" for $20 plus the cost of the room. As she walked out the rear entrance Officer Hamilton agreed to the offer. That same evening Officer Hamilton was again approached by Anna whom he had met the previous evening. She asked if he was ready and again told him the price of a "suck and fuck." He agreed and she told him to leave out the front door and she would wait around back. Officer Hamilton left the lounge and drove his car to the rear entrance where Anna was waiting just inside the screened door of the back entrance. On the evening of September 15, 1983, at approximately 9:15 p.m., Beverage Officer Alfonso Scott Julious entered the licensed premises. There were several men seated inside the bar and several women were walking around the bar. The women were dressed casually and some were wearing short dresses which were low cut in the front. After entering the licensed premises Officer Julious observed women from time to time leave the bar with a man and then come back. Each of the women exited through the rear door. At approximately 9:45 p.m. Officer Julious was approached by a white female named Gail Sylvia James. She asked if he wanted a "date" and he said what is a "date." She then said that she would "fuck him and suck him" for $30. He responded that he would be around for a while and would get back to her. Officer Julious left the lounge at approximately 10:30 p.m. During the evening Officer Julious had overheard other men being solicited and observed at least five men leave with women. On this evening Officer Julious considered the women's dress to be casual, nice dresses. Officer Julious returned to the licensed premises at approximately 9:00 p.m. on September 16, 1983. After entering the lounge he was approached by a white female named Patricia. She asked him if he wanted a "date" and he asked "what is a "date?" She then said she would fuck him for $30. Officer Julious responded that he would be around and would get back to her. Some time later in the evening Gail James, whom he had met the previous night, approached Officer Julious and asked if he was ready for a "date." She said she would go half and half, "suck and fuck" for $30. He told her he would be around for a while. Officer Julious was also approached by a woman named Mindy Jo Gelfin, who asked if he wanted a "date." He asked "What is a date?" and she responded "half and half, fuck and suck" for $40. He also did not accept this offer. Officer Julious left the licensed premises at approximately 10:45 p.m. On Saturday, September 17, 1983, Officer Julious returned to the licensed premises at approximately 9:05 p.m. The Respondent, Eddie Lee Pittman, was in the lounge. Immediately after entering the licensed premises, Officer Julious was approached by Mindy Gelfin, who asked if he was ready for a "date." Officer Julious stated that he would be around all night and Mindy said she would come back. Later, Mindy returned and asked if he was ready and he responded "yes." He asked if they could go to the Holiday Inn and she asked if he was a cop. Officer Julious said "Do I look like a cop?" She then asked if she could pat him down. He said "yes" and she patted him down. She then said that she wanted to go in a friend's car. She borrowed the car and drove to the Holiday Inn where she was arrested. At the time of her arrest Mindy Jo Gelfin was residing with Collins Winston Jones and his girlfriend. At the time of the final hearing, Mindy Gelfin was continuing to live at Mr. Jones' residence. Mr. Jones' girlfriend had allowed her to move in. Mr. Jones is the manager of Eddie's Dive Inn. On September 29, 1983, Detective Hugo Gomez of the Metropolitan Dade County Police Department went to the licensed premises, Eddie's Dive Inn. Detective Gomez was accompanied by Detectives Manny Gonzalez and Ray Gonzalez. Detective Gomez stood at the west end of the bar and his two partners sat at the bar next to him. After they ordered a beer, they were approached by a white female named Catrina Gibides. She sat down between the two officers who were seated. She asked what they were doing and told Detective Gomez he looked like a cop. He then pulled up his pants legs to show he was wearing no socks and she said "you can't be a cop" and grabbed his groin. She then began playing with Manny Gonzalez's leg and asked if they wanted a "date." She was wearing a very loose chiffon type outfit and her breasts were barely covered. The officers who were seated had been pretending not to speak English and Ms. Gibides asked Detective Gomez to ask Manny Gonzales if he wanted to go across the street to a motel with her. She said that she would perform intercourse and fellatio for $25 plus $5. She then called over another white female named Lisa Brown, who also began talking about going across the street to a motel. Lisa Brown said her price was $25 plus $5 for the room. They then discussed going in different cars. During these conversations the bar was crowded and Eddie Pittman was in the lounge approximately 8 to 10 feet from where the officers were located. It was pretty loud in the bar. There were also barmaids working behind the bar. Isaac Dweck is a regular patron of Eddie's Dive Inn. He goes there primarily on Sunday afternoons to watch football and shoot pool. He is almost never in the licensed premises after 9:00 p.m. and averages going to the lounge four or five times a month. He has never been solicited for prostitution in the lounge and has never overheard someone else being solicited. Gary Arthur goes to Eddie's Dive Inn two or three times a week and generally leaves some time between 7:30 and 9:00 p.m. Once or twice he has stayed until 11:00 or 12:00 p.m. He has never been solicited for prostitution and has never overheard anyone else being solicited. He has been going to Eddie's Dive Inn for five or six years. The Respondent has a policy against drugs, fighting, solicitation, and profanity and also has a dress code. He employs 11 full-time employees at the lounge and three or four of these employees are security guards who work at front and back doors. The Respondent has a closed circuit television system with cameras on the cash register and pool room area. The screen is in Respondent's office. Over the past 12 years the manager, Collins Jones, has barred 12 or 13 women from the bar after he heard them soliciting in the bar. In the twenty years he has operated Eddie's Dive Inn, the Respondent has barred approximately 20 women from coming into the licensed premises because of prostitution. Once the women are arrested for prostitution, they are barred from the premises. There are signs posted in the bar prohibiting soliciting. Irene Madden works as a barmaid at Eddie's Dive Inn. She has been instructed to not serve known prostitutes and that if she heard someone soliciting she should diplomatically ask them to not do that and inform Mr. Pittman or the manager. Mary Scott works as a barmaid at Eddie's Dive Inn. She has heard women solicit in the lounge for prostitution. She does not have the authority to ask someone who solicits for prostitution to leave the premises. She does have authority to ask people to leave who are in violation of the dress code. In September, 1972, the Respondent was charged in an administrative proceeding against his license with permitting prostitution on the licensed premises. He was also charged criminally with permitting prostitution. Respondent paid a $350 administrative fine and his license was placed on probation for the remainder of the license year. He pleaded guilty to the criminal charge.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered finding the Respondent in violation of Section 561.29, Florida Statutes, and imposing a civil penalty of $1,000 and suspending Respondent's beverage license for a period of ninety (90) days. DONE AND ENTERED this 9th day of November, 1983, at Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1983. COPIES FURNISHED: William A. Hatch, Esquire Gary R. Rutledge, Secretary Department of Business Department of Business Regulation Regulation 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Arthur M. Garel, Esquire 40 Southwest 13th Street Miami, Florida 33130 Howard Milan Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
