The Issue Whether or not, on or about January 25, 1977, in the licensed premises located at 1600 North Dale Mabry Highway, Tampa, Hillsborough County, Florida, the licensed premises of the Respondent, the Respondent's employee, agent, servant, or entertainer, to wit: Linda Sue Richardson and/or Gayle Jeanette Landrum, allegedly employed at the licensed premises or employed on a contractual basis by the Respondent to entertain, perform, or work on the licensed premises known as, Tigers Den A Go Go, did commit or engage in a lewd and lascivious performance by a live person by committing obscene and indecent acts in violation of 847.011, F.S. and thereby subject the licensee to the penalty provisions of s. 561.29, F.S.
Findings Of Fact At present and at all times pertinent to this cause, to include January 25, 1977, the Respondent, Mardi Gras De Tampa, Inc., was the holder of license no. 39-0246, series 4-COP, held with the State of Florida, Division of Beverage. This license was held to trade as Tigers Den A Go Go in a premises located at 1600 North Dale Mabry Highway, Tampa, Hillsborough County, Florida. On January 25, 1977, officers of the Hillsborough County Sheriff's Office entered the licensed premises. The officers were Detectives Ridgeway and Coakley. While in the licensed premises the officers observed an entertainer Linda Sue Richardson dancing. In the course of the dancing Richardson inserted a plastic straw into the g-string costume which she was wearing, and simulated masturbation. The officers also observed Richardson, in the course of the dance, take a napkin and rub it on her vagina, and then roll the napkin up and place it in her mouth and simulate oral sexual activity. At the time the officers were in the licensed premises and on the same date, they observed the dancing of a second female entertainer, one Gayle Jeanette Landrum. They saw Landrum place her hand in her g-string costume and simulate masturbation. Landrum also fondled her breasts in a provocative manner. The exact location within the licensed premises where the above described dancing took place is not specifically known, beyond the fact that one dancer was dancing on a large stage behind the bar and the other dancer was dancing on a smaller stage which was placed in the area where patrons would be seated. The dancing took place at a time that customers were in the licensed premises. The two women were arrested and charged with lewd and lascivious conduct and both were convicted of a violation of s. 847.011, F.S. On the date of the arrest of the two dancers, Carol Alcorn was in charge of the licensed premises in the capacity of manager. Alcorn was also serving as bartender on that occasion. The two female entertainers were employed on January 25, 1977 for compensation by the Respondent, Mardi Gras De Tampa, Inc. The two women were operating under the specific instructions of the Respondent on the subject of their conduct while performing. These instructions were generally to not commit acts which would be considered lewd and lascivious within the meaning of the "Florida Law". In addition the dancers were not to touch themselves or fondle themselves or let customers touch them. The women had been told these basic rules in individual conferences. Another policy which the management had, was to call the performers attention to any improper conduct, and dismiss performer if the performer failed to abide by management rules on the subject of proper conduct. In fact, the Respondent's management employees had corrected dancers before. On the occasion when the officers observed the conduct of Richardson and Landrum, it is unclear what period of time was encompassed to achieve the acts described. In the normal course of events the women would have been dancing for the duration of three records, which would be approximately nine minutes. They would have been dancing as a part of a group of six to eight dancers. The bartender would have been able to see any dancer performing on the stage behind the bar or performing on the stage in the area where the patrons were seated. The view of the two stages from the location the bartender would have behind the bar would have been unobstructed. Whether or not the bartender, Carol Alcorn, actually saw the subject dancing of Richardson and Landrum can not be determined from the facts offered in the hearing. What was shown was that the bartender went to the restroom, which was away from the bar itself, and was confronted by the two officers when leaving the restroom area. This confrontation was for the purposes of complaining about the activities the officers had observed on the apart of Richardson and Landrum. The acts which took place in the course of the dancing, by Linda Sue Richardson and Gayle Jeanette Landrum, constitute lewd and lascivious conduct within the meaning of s. 847.011, F.S. From the facts presented in the course of the hearing, it has not been shown that the Respondent, Mardi Gras De Tampa, Inc., has violated s. 561.29, F.S., as a result of the acts of their employees Linda Sue Richardson and Gayle Jeanette Landrum. The facts do not show that the Respondent is responsible for those acts of the employees either through its own negligence, intentional wrongdoing, or lack of diligence.
Recommendation It is recommended that the charge filed by the Petitioner against the license of Mardi Gras De Tampa, Inc., t/a Tigers Den a Go Go, under license no. 39-0246, series 4-COP, as set forth above, be dismissed. DONE AND ENTERED this 28th day of July, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Tom Whitaker, Esquire Division of Beverage 403 North Morgan Street 725 South Bronough Street Tampa, Florida 33602 Tallahassee, Florida 32304
The Issue Whether just cause exists for the proposed disciplinary action against the Respondent.
Findings Of Fact At all times material to this case, Respondent Keven Renken (Respondent) was employed under a professional services contract as a teacher at the Pinellas County Center for the Arts Program (PCCA) at Gibbs High School. On February 11, 1994, the Respondent arrived at about 7:30 a.m. to teach a first period acting class. Prior to the start of classes, another PCCA teacher approached the Respondent and requested permission to bring his class to the Respondent's to view a videotape made by one of the Respondent's students. Although the Respondent apparently was unaware of thee videotape or its content, he consented to permit the other class to view the film in his classroom. After the last bell and before the class began, a student, Marshall Bross, approached the Respondent and requested permission to play a videotape to the class. The student told the Respondent it was an anti-drinking tape. The Respondent granted the student's request. The Respondent did not preview the tape. On February 11, 1994, the Respondent's first period acting class contained not more than five students, each about 15- 16 years old. Many students were absent, apparently because they had participated in a performance on the previous evening. The Respondent asserts that he had intended for students to rehearse script lines during class but was not able to do so because of the low number of students present. During the time that Bross was cueing the tape in the machine, the television set was turned away from the Respondent's view. When the tape was ready for viewing, Bross turned the machine towards the classroom seats. At the time the tape began to be played to the class, the Respondent was present in the room. The television was visible from the Respondent's desk, where he sat doing paperwork. The volume on the television was audible in the classroom. The Respondent asserts that he did not hear the tape because he was concentrating on paperwork. The videotape shows an intoxicated male PCCA student (victim) being physically and verbally abused by other male students. The tape, about 23 minutes long, was produced by Bross on February 10, 1994. About five minutes into the tape, the other teacher and his students joined the Respondent's class to view the tape. The tape was rewound to the beginning of the relevant segments and the viewing began again. The tape shows the victim, intoxicated to the point of being unresponsive, lying in a puddle of (what appears to be presumably his own) vomit. He is dragged across a floor and out a door, where he is rolled off an elevated porch onto the ground. As the victim regains consciousness, he is repeatedly doused with buckets of water, with flour and with what is identified as urine from a cup. At one point, he stands barefooted on the wet concrete porch next to the electrical connection to the house. He is sprayed with water from a garden hose. During much of the victim's conscious moments, he shouts and screams at his tormentors to stop the abuse. Later on the tape, the victim, again unconscious, is shown lying in a filled bathtub as the other students put what appears to be shaving cream and cosmetics on him. Finally, the boys perch on the edge of the bathtub, the camera shot showing the victim lying between the legs of each boy, as each attempts, and some succeed, to urinate into the tub and on the unconscious victim. During the tape, the scenes are loudly narrated by Bross. The verbal abuse of the victim is clearly audible. The dialogue is often harsh and profane. It was possible for the Respondent to see and hear the television from his location. At some point during the showing of the tape, the Respondent left the room to copy some documents. The students remained in the supervision of the other teacher who was watching the tape. The Respondent was in the room for approximately ten minutes of the 23 minute video. The Respondent viewed portions of the tape. Although he claims he was unaware of what he was seeing, the Respondent saw the trail of green vomit across the floor where the student had been dragged. The Respondent saw the victim being hosed off. The Respondent saw the scenes where the boys stood on the edge of the bathtub. The Respondent saw the view of the victim lying between the legs of the boys as each attempted to urinate on the victim. Although he did not know the student's name, the Respondent saw enough of the tape to recognize the victim as a student at PCCA. The Respondent was sufficiently aware of the video's content to comment towards the end of the tape that it was "sad" and to inquire of Bross as to the victim's condition. The entire videotape was shown to the first period students present in the classroom. The Respondent heard students commenting about the film while it was being played. Subsequent to the showing in first period, the tape remained in the possession of the student who made and showed the video. At the break between first and second periods, the victim became aware that the tape had been shown and went to the Respondent's classroom. As he entered the classroom, no teachers were present and the tape was being played again. Shortly thereafter, the Respondent entered the classroom and asked the victim how he was feeling. Humiliated and embarrassed, the victim left the classroom. There is no credible evidence that the victim of the abuse consented to the abuse or to the taping of the activity. There is no credible evidence that the victim consented to the playing of the tape for other students inside or outside of the classroom. There is no evidence that the victim was aware of the images continued on the tape. Shortly after the victim left the room, a guidance counselor became aware of the situation and went to the classroom, where the tape was still being played. No teachers were present. The counselor saw enough of the tape to become aware of its contents and instructed the students to stop the tape and take it to his office. Just before the start of second period, the Respondent reentered the classroom and saw the tape still playing, at which point he instructed the student responsible to turn the tape off. Prior to the start of second period, the Respondent made no effort to stop the playing of the tape or to confiscate it from the students. By letter of March 17, 1994, the Respondent was notified that the superintendent would recommend to the school board that he be suspended without pay from a period of ten days. The grounds for the suspension are identified as follows; ...on February 11, 1994, during your first period class you allowed a student to show a tape unpreviewed by you to your class and another teacher and his class. The video contained denigrating and humiliating scenes of several students physically abusing the inebriated student. While viewing the tape yourself, you allowed your students to continue viewing it and failed to confiscate the tape. Your actions constitute just cause for this suspension pursuant to Section 231.36(6)(a), Florida Statutes. This matter was made aware to the public through an article in the April 8, 1994 issue of the St. Petersburg Times. At the beginning of the 1993-94 school year, the Respondent received a copy of Principles of Professional Conduct for the Education Profession in Florida. At a meeting with Gibbs/PCCA faculty, the principal of the school reviewed the document. The Respondent was present at the meeting. According to the Principles of Professional Conduct for the Education Profession in Florida, a teacher "shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety" and "shall not intentionally expose a student to unnecessary embarrassment or disparagement." According to both the principal of Gibbs/PCCA and the superintendent of the Pinellas County School System, the Respondent's failure to monitor or stop the playing of the videotape, or to confiscate the tape from the students, is sufficiently serious so as to impair the Respondent's effectiveness in the school system.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Pinellas County School Board enter a Final Order terminating the employment of Keven Renken. DONE and RECOMMENDED this 13th day of January, 1995, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 13th day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2010 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 26. Rejected, unnecessary. Respondent The Respondent's proposed findings of fact are set forth in unnumbered paragraphs. The paragraphs in section II, "Proposed Statement of the Facts" have been consecutively numbered for purposes of these ruling. The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Reference to pornographic material on tape is rejected, irrelevant. It was not viewed by the students. Rejected, not supported by the greater weight of the evidence. The Respondent was in the room for a significant portion of the tape, as set forth in the findings. The evidence does not establish, as the proposed finding suggests, that the Respondent left the room immediately after the other teacher arrived. Rejected, not supported by the greater weight of the evidence. The Respondent was in the room for a significant portion of the tape, as set forth in the findings. He viewed and heard enough of the tape to remark that it was "sad" and to recognize the student being abused. Rejected, not supported by the greater weight of the evidence. The cited testimony related to the timing of the entry of the victim into the classroom is not credible. Rejected, not supported by the greater weight of the evidence. The cited testimony related to the timing of the entry of the guidance counselor into the classroom is not credible. DOAH CASE NO. 94-2010 COPIES FURNISHED: Dr. J. Howard Hinesley Superintendent School Board of Pinellas County P. O. Box 2942 Largo, Florida 34649 Keith B. Martin, Esquire Pinellas County School Board P.O. Box 2942 Largo, Florida 34649 Marguerite Robinson, Esquire Kelly & McKee Post Office Box 75638 Tampa, Florida 33675
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 The issue in the case is whether the Respondent unlawfully terminated the employment of the Petitioner.
Findings Of Fact The Petitioner was born in 1964 as an anatomical male named Andrew Allen Shepley. The Petitioner married a female in 1984. The couple separated in December 2000. During the course of the marriage, the couple produced four children. They divorced in July 2002. The Respondent is a large recreational vehicle dealership located in Seffner, Florida. The winter months are the busy season for sales and service of recreational vehicles, and the Respondent may employ several hundred employees at that time. In August 1999, the Petitioner began employment as a technician (essentially a mechanic) with the Respondent. His duties as a technician included inspections and service and repair responsibilities for recreational vehicles. He also sometimes performed "walk-throughs" with vehicle purchasers at the time of delivery during which features and operations of the vehicle are discussed with the new owner. The Petitioner worked for the Respondent for approximately one year, and then in about August 2000, he moved with his wife and children to Chicago where his wife's family was located. In December 2000, the Petitioner returned to Florida after separating from his wife. He sought a job and was again employed as a technician by the Respondent. Although the Petitioner was born anatomically male, he psychologically identifies himself as female. The Petitioner has been aware of the issue since his early childhood. For various reasons, in Spring 2001, the Petitioner began a course of psychotherapy. During the psychotherapy, the Petitioner was diagnosed with gender identity disorder, a condition wherein the psychological perspective of a person does not correspond to the anatomical gender into which the person was born. After the diagnosis, the Petitioner continued with psychotherapy and in June 2001 began transitioning into living as a female, initially on a part-time basis. He lived as a female during non-work hours and as a male during his hours of employment. As time passed, the Petitioner decided to begin living as a female on a full-time basis. In July 2001, the Petitioner requested approval from the Respondent to take the last week of the year as vacation during which he planned to visit his children in Chicago. He also intended to begin living full-time as a female during the vacation. Some co-workers were already aware of the Petitioner's intent to begin living as a female. The Respondent's technicians work in teams of between six and ten employees per team. Each team has a foreman. Andrew Dietz was the foreman for the Petitioner's team. The Petitioner advised Mr. Dietz at some point in mid-2001 that he had been diagnosed with gender identity disorder and was planning to transition to life as a female. The Petitioner believes that for various reasons other employees may have been aware of the situation. In August 2001, the Petitioner informed the Respondent's human relations office that he intended to begin living as a female on a full-time basis and would return to work after the December vacation as a female. The human relations office apparently was supportive of the Petitioner's decision. The human relations office informed Allen Kelley of the Petitioner's intent to begin living as a female. Mr. Kelley was the manager in charge of the Respondent's service and delivery operations. There is no evidence that Mr. Kelley had any concerns about or objections to the Petitioner's decision to live as a female. In September 2001, the Petitioner began hormone treatments which resulted in physical changes to the Petitioner's body including breast development, but the Petitioner testified that the changes were not likely visible to an "untrained eye." The Petitioner also began to let his hair grow longer than he had previously. He began to wear acrylic fingernail extensions without polish. His ears were pierced. In December 2001, the Petitioner received a merit pay increase and was part of a team of technicians receiving an award for superior service. As planned, the Petitioner took the last week of December 2001 as vacation. During the Petitioner's vacation, Mr. Kelley conducted a series of meetings with the teams of service personnel and advised them that the Petitioner would return to employment as a female. Some employees expressed discomfort with the Petitioner's decision during the meetings, but Mr. Kelley advised them that the Respondent was going to "work as best we can to accommodate him." Also during the Petitioner's vacation, the Respondent re-labeled an existing single-user lockable restroom (previously identified as a women's facility) as a "unisex" facility to provide restroom access for the Petitioner. On January 2, 2002, the Petitioner returned as a female to his employment with the Respondent. He wore the same uniform he wore prior to the vacation. He put colored nail polish on the acrylic fingernails he had already been wearing. He added breast forms under the bra he had been wearing prior to his vacation. He wore makeup, including eye shadow and lipstick. The Respondent provided to the Petitioner, a nametag for his uniform identifying him as "Madalynn." There is no evidence that any person employed by the Respondent in a management position made any derogatory comments about the Petitioner, suggested that there should be any change in the Petitioner's appearance or behavior, or was otherwise unsupportive of the Petitioner's decision to return to work as a female. Mr. Kelley testified that beginning with the Petitioner's return to work on January 2, 2002, Mr. Kelley spent approximately two hours of each day dealing with issues related to the Petitioner's return to work as a female. Mr. Kelley testified without contradiction that there were complaints from several unidentified customers, to him and to sales staff, about having to interact with the Petitioner. The Petitioner acknowledged being aware of one specific customer who complained. Mr. Kelley testified that he advised customers that the Petitioner was a good technician, but that other employees were available to work with customers upon request. Mr. Kelley subsequently decided to address the issue by assigning other technicians to conduct vehicle walk-throughs with customers, and so informed the Petitioner. Mr. Kelley had to twice warn one employee (Bruce Dickens) who was loudly unhappy with the Petitioner's decision to live as a female, but after Mr. Kelley advised Mr. Dickens that further disruption by Mr. Dickens would result in unpaid suspension, Mr. Dickens refrained from continuing his complaints. Mr. Kelley testified as to "threats" relayed to him by employees who claimed to have knowledge that other employees were planning some unidentified action against the Petitioner, but Mr. Kelley was unable to recall the names of any of the employees involved in either the threats or the reporting of the threats. He did not advise the Petitioner of the alleged threats. He did not contact law enforcement about the situation. He made no written record related to the threats. Mr. Kelley monitored the employee parking area to ascertain whether any inappropriate activity was occurring, but observed nothing of concern. Mr. Kelley testified that between six to twelve times daily, he observed various groups of technicians standing around talking, and that he had to enter the service area and direct them to return to work. He did not overhear any conversations, but assumed that the conversations were related to the Petitioner. An incident involving graffiti placed in the "unisex" bathroom was resolved by removal of the graffiti after the Petitioner reported it to management. On January 7, 2002, the Petitioner was called to the human resources office where Mr. Kelley informed him that he was a substantial disruption in the workplace and that his employment was being terminated. Mr. Kelley testified that he was solely responsible for making the termination decision. There is no evidence that Mr. Kelley discussed the termination with the owner of the Respondent, or that any other employee was involved in Mr. Kelley's decision. The Respondent employed several homosexual technicians during the period of the Petitioner's employment who were not subjected to any adverse employment action. The Respondent employed a female employee who underwent breast enlargement surgery during the time the Petitioner was employed by the Respondent. The Petitioner testified that the female was a "distraction" at work that was not subjected to any adverse employment action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order DISMISSING the complaint of discrimination filed by the Petitioner in this case. DONE AND ENTERED this 8th day of November, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 8th day of November, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Richard C. McCrea, Jr., Esquire Luisette Gierbolini, Esquire Zinober & McCrea, P.A. 201 East Kennedy Boulevard, Suite 800 Post Office Box 1378 Tampa, Florida 33601-1378 Craig L. Berman, Esquire Berman Law Firm, P.A. 111 Second Avenue, Northeast Suite 810 St. Petersburg, Florida 33701 Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Mr. Landrey has requested an exemption from disqualification from employment relating to children and other vulnerable persons. The issue for disposition is whether he is entitled to that exemption.
Findings Of Fact Jeffrey Landrey is a 37-year-old long-time resident of Orlando, Florida. He has a high school diploma and a stable employment history, primarily as a file clerk of a law firm and as a waiter or cook at various military or private clubs. On June 26, 1995, Mr. Landrey was arrested for indecent conduct. In his words, he had gone to a park that was well known for sexual escapades, looking for affection and some release. In the men’s rest room, Mr. Landrey openly masturbated and continued masturbating when an undercover law enforcement officer walked in and watched him. The officer left; then returned and induced Mr. Landrey to accompany him out of the park, and arrested him. At his attorney’s urging, Mr. Landrey pled no contest in return for completing an AIDS awareness course, avoiding the park for six (6) months and paying a $377.50 fine. He has now satisfied that sentence. Mr. Landrey asserts that as of March 1996, with the help of a hypnotist, he has turned his life around: he has quit alcohol and drugs, has become a vegetarian and has become “very spiritual." He has sold his late-model car to buy a “clunker” vehicle and to finance his college education. He wants to pursue a degree in social work. Mr. Landrey obtained a job at the Primrose Center, a non-residential workshop for mentally and physically handicapped persons, to see if he really could be a social worker. He loved the work and says the clients offered “unconditional love." After two weeks at Primrose Center, Mr. Landrey was terminated when the legally-required screening process revealed his 1995 arrest and disposition. Although he claims that he left a good-paying job to work at Primrose Center and now feels it unfair that he was not screened before he took the job, Mr. Landrey concedes that he did not tell Primrose about the nature of his arrest, but rather described it in such veiled terms that the employer thought he was talking about a traffic offense and told him not to worry. Although the offense which disqualifies Mr. Landrey is minor, the finding that he should now be exempt, that is, that he is rehabilitated and will not present a danger, must be based solely on his own testimony. He presented some letters of personal recommendation but no evidence that the authors of the letters were aware of the indecent conduct offense. The other letters are employment recommendations and a letter from his church pastor stating only that he is a “registered and active parishioner." Mr. Landrey was not candid with his employer at Primrose. This, and the brief time since his offense and subsequent avowed rehabilitation, preclude the findings necessary for an exemption at this time.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the request for exemption be DENIED, without prejudice to Mr. Landrey’s right to renew his request later with additional evidence of his rehabilitation. DONE AND ENTERED this 12th day of January, 1998. MARY CLARK 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 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1998. COPIES FURNISHED: Jeffrey Landrey 3355 Coe Avenue Orlando, Florida 32806 Carmen M. Sierra Department of Children and Family Services Suite S-1106 400 West Robinson Street Orlando, Florida 32801 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether the City of Gainesville ("City") properly issued an Underage Prohibition Order to Petitioner, Spannk, pursuant to Section 4-53, Gainesville Code of Ordinances.
Findings Of Fact The City is a municipal corporation organized under the laws of the State of Florida. In 2009, the City adopted Chapter 4, Article III of the Gainesville Code of Ordinances, titled "Underage Prohibition in Alcoholic Beverage Establishments," referenced herein as the "Ordinance." Spannk is an alcoholic beverage establishment as defined in section 4-51 of the Ordinance and is located within the city limits of the City. Spannk's address is 15 Southwest 2nd Street, Gainesville, Florida. Section 4-51 of the Ordinance defines "underage drinking incident" as follows: Underage drinking incident means any physical arrest or notice to appear (NTA) issued for possession or consumption of an alcoholic beverage by a person under the age of 21 which results in an adjudication of guilt, finding of guilt with adjudication withheld, waiver of right to contest the violation, plea of no contest including, but not limited to, payment of fine or civil penalty, or entering into an agreement for deferred prosecution. Section 4-51 of the Ordinance defines "underage prohibition order" as "an order issued by the city manager or designee which prohibits an alcoholic beverage establishment as herein defined from admitting patrons under the age of 21 into such establishment during specified times." Section 4-53 of the Ordinance provides that an alcoholic beverage establishment will be issued an underage prohibition order if a certain number of underage drinking incidents have occurred at the establishment during a given calendar quarter. For alcoholic beverage establishments with an aggregate occupancy load of fewer than 201 persons, the number of underage drinking incidents triggering a prohibition order is five or more in a quarter. For establishments with an aggregate occupancy load of more than 201, the number is ten or more in a quarter. The parties have made the following stipulations of fact, which are hereby accepted: The parties stipulate that the Occupancy Load for Spannk is greater than 201 persons, thereby requiring a showing of ten (10) or more underage drinking incidents. Spannk stipulates that based upon the certified copies of the Notices to Appear and individual court dispositions, including Deferred Prosecution Agreements and/or Judgments and Sentence to be offered by the Respondent, that twelve (12) "underage drinking incidents" as defined in section 4- 51, Code of Ordinances, did occur in Spannk during the 4th quarter of 2012. Spannk was served with an Underage Prohibition Order on February 21, 2013, which was entered by Russ Blackburn, City Manager, on February 12, 2013, in accordance with the procedures set forth in section 4- 53, Gainesville Code of Ordinances. The City followed all of the procedural requirements set forth in section 4-53, Gainesville Code of Ordinances. Danny Robinson has been the owner and operator of Spannk since it opened in 2008. In order to eliminate the occurrence of underage drinking incidents, Spannk has instituted the following policies and procedures: Maintains a strict identification policy, which includes: Requesting identification from every customer entering Spannk, in the form of a driver's license, ID card from the DMV, passport, or military ID. Requesting a second form of identification when an out-of-state license is presented. Questioning patrons who appear younger than 21 or who raise suspicion about their birthdays, addresses, and Zodiac signs. Maintains a strict wristband policy, which includes: Using blue wristbands from Domino's pizza to indicate that patrons are at least 21 years old. Using yellow wristbands to indicate that patrons are under the age of 21, or alternatively not giving wristbands to underage patrons and ensuring that the staff knows "No band = no drink." Ensuring that, when door staff places wristbands on entering patrons, such bands are tight enough so that they cannot be easily removed. Maintains a strict entry/re-entry policy, which includes: Questioning patrons entering Spannk who already possess wristbands, and ensuring that they are the wristbands used by Spannk. Prohibiting any patron from bringing into Spannk any type of cup, bottle, or can and requiring all outside drinks to be consumed prior to entering Spannk. Prohibiting under-age patrons who have left Spannk from re-entering the premises. Checking any large purse brought into Spannk by any patron, and prohibiting backpacks from being brought inside Spannk. Provides comprehensive training to all Spannk staff, which includes: Gainesville Police Department Responsible Vender Programs. On-the-job training of new employees by older, more experienced staff. Consistently monitors Spannk premises to prevent underage drinking by: Requiring staff to "roam" the indoor premises to ensure that patrons with alcoholic beverages are wearing wristbands. Requiring staff to check for signs of patrons tampering with or removing wristbands. Requiring staff to periodically check Spannk bathrooms to ensure that underage patrons are not consuming alcohol. Maintains a strict removal policy in the rare event that a patron fails to comply with Spannk policies or engages in underage drinking by: Removing any person of age who gives a drink to an underage patron, and removing the underage patron. Removing any patron who has snuck an outside beverage into Spannk. Ensures diligence and effective communication among staff members while patrons are on the premises by: Requiring front and back-door staff to communicate with each other to ensure that they are aware of the occupancy number. Requiring a staff member who leaves his assigned position to use the restroom during his/her shift to communicate this to the rest of the staff. Prohibiting staff from visiting with friends during work hours. Asking staff to communicate to police if any problems with patrons arise during work hours. On February 21, 2013, the City served Spannk with an Underage Prohibition Order (the "Order"). The Order, dated February 12, 2013, was based on 11 underage drinking incidents that occurred at Spannk during the fourth quarter of 2012. Subsequent to the issuance of the Order, an additional underage drinking incident arose. Spannk was given timely notice of this additional incident on May 7, 2013, and it became part of this case. In its exhibits, the City included documentation for six underage drinking incidents at Spannk other than those to which the parties stipulated. Five of those six incidents occurred outside of the fourth quarter of 2012 and are therefore irrelevant to establishing a violation of section 4-53 of the Ordinance. The sixth additional incident has not been considered because the City did not establish that Spannk was given sufficient notice of the City's intended reliance on it. The stipulated exhibits demonstrated that the City secured deferred prosecutions in 10 of the 12 arrests that GPD officers made for underage drinking incidents at Spannk during the fourth quarter of 2012. One of the arrests resulted in a pre-trial intervention agreement because a post-arrest search of the defendant’s purse revealed that she was in possession of a controlled substance. The twelfth arrest resulted in a plea of nolo contendere and the court’s withholding adjudication and placing the defendant on six months’ probation. Of the 12 arrests made in Spannk during the fourth quarter of 2012, five were instances in which the underage patron gained entry to the bar by presenting false identification. Upon successfully presenting the false ID to the doorman, the patron would be given a blue "over 21" wristband that allowed the purchase of alcoholic beverages in Spannk. Persons under 21 were allowed into the bar, given a yellow “under 21” wristband, and not served alcoholic beverages. Three of the five instances of false ID involved the presentation of valid IDs that belonged to other persons who were over the age of 21. In one of those three instances, the suspect presented the doorman with his older brother’s ID. None of the arrest reports indicates whether or not the arresting GPD officer believed the photo on the ID resembled the suspect. No other evidence was presented as to whether the suspects resembled the photos on the IDs they presented to the Spannk doorman. In two of the five instances of false ID, the underage patrons presented the doorman with forged IDs that indicated they were over 21 and obtained blue wristbands. Neither of the arrest reports expressly states that the suspect appeared to be under 21, but the fact that the officer saw cause to investigate allows for the inference that the suspects did not appear to be of legal drinking age. In each of these five instances, the suspect had been given a blue wristband by the doorman. The arresting officer observed each of the five in possession of an alcoholic beverage. Three of the five told the arresting officer that they had bought drinks from the bar. One of the suspects gave the arresting officer no indication of how she got the alcoholic beverage she was holding. One of the forged ID suspects told the arresting officer that someone else bought the drink he was holding, but that he had earlier bought drinks for his friends because he was wearing a blue wristband and they were not. One of the 12 arrests made in Spannk during the fourth quarter of 2012 involved a patron who told the arresting officer that she had shown the doorman her real ID, which indicated she had just turned 20, but was given a blue wristband anyway. This patron told the arresting officer that she had bought her drink at the bar, and that she had smuggled a bottle of vodka into the bar. Two of the 12 arrests involved underage patrons who were wearing yellow wristbands but were seen holding alcoholic beverages. One of these patrons told the arresting officer that he entered the bar using his real ID, and that his underage friend had handed him the drink when he saw the officer approaching. The second patron who was wearing a yellow wristband and holding a beer told the arresting officer that she had entered the bar using her own ID and had smuggled the beer into the bar in her purse. The remaining four arrests involved idiosyncratic details. One patron told the arresting officer that she worked at Beef O’Brady’s, which used wristbands similar to those used by Spannk, and that she brought a blue wristband into the bar with her and put it on after obtaining admission to Spannk using her own ID and receiving a yellow wristband. She purchased an alcoholic beverage at the bar in Spannk. Another patron told the arresting officer that she used her own ID to get into the bar and received a yellow wristband. She went into the bathroom and found a green wristband. She put it on and was able to purchase a drink at the bar despite the fact that Spannk does not use green wristbands. One of the patrons told the arresting officer she didn’t know how the blue band made it to her wrist and did not know whether the beverage she was holding had alcohol in it. The arrest report does not expressly state the officer’s findings as to the alcoholic content of the beverage. Finally, a GPD officer saw a patron who was wearing a blue wristband and holding a drink but appeared to be under 21. The patron refused to provide identification to the officer, who arrested her. At the police station, the patron was found to be in possession of a controlled substance (Adderall). This was the arrest that resulted in a pre-trial intervention agreement. This was also the only arrest in which the arresting officer expressly stated that the suspect appeared to be younger than 21; however, as stated above, the officers’ investigations of the various patrons permit the inference that the officers did not believe that the patrons looked to be of drinking age. The arrest reports indicate a variety of suspicious behaviors cited by the arresting officers as grounds for suspicion. In some cases, the patron placed the drink on the bar or on a table when he or she saw the GPD officer approaching. In two cases, the patron handed the drink to a friend. Three patrons simply dropped their drinks when they saw the officer. Two of the patrons attempted to conceal their drinks from the officers. None of the arrest reports states that the GPD officer observed an underage person obtaining an alcoholic beverage from an employee of Spannk. There was no indication of how long any of the underage persons had been in possession of the alcoholic beverages. There was no evidence that any employee of Spannk knew that underage patrons were drinking alcohol and failed to act on that knowledge. According to the arrest reports, six of the twelve patrons who were arrested told the arresting officers that they had purchased drinks at the bar. This number included four persons who had obtained blue wristbands under false pretenses, one who brought her own blue wristband into the bar, and one who somehow purchased a drink while wearing a green wristband. The owner of Spannk, Danny Robinson, filed a witness affidavit that stated as follows: I have been in the bar business for 16 years in Gainesville and before that I have worked in the industry in Washington, D.C., Portland, Oregon and St. Thomas for a total of 27 years. It’s pretty safe to say I have extensive experience. A partner and I started Speakeasy in 1997. I worked as the bartender and trained staff. We would attend GPD training classes provided to spot fake IDs and deal with intoxicated people. We would also attend the Fire Safety courses put on by the Fire Marshall. These are the years of training we would pass on to our employees in the capacity of the Door Staff. The responsible vendor class for bartending. Teaching everyone the rules and correct procedures for working in the bar business and what we expected of them representing our establishment. I only hire door staff with experience and a positive attitude with people-— generally older. I do not allow students to work the door. I feel like there is too much temptation to let fellow students in to drink underage. My staff consists of ex-military, firefighters, professionals with day jobs. For example, two hold jobs with the government. One works for TSA and the second one for the VA. These men are all responsible, mature people that I feel very good about having at the front checking ID’s and roaming throughout the establishment looking for infractions. We employ a strict door policy at both Spannk and Speakeasy to avoid any trouble. Only accepting valid driver’s licenses, DMV ID card, military ID and passports. We do not accept foreign ID’s and foreign passports. We don’t know enough about them to spot a fake. I have trained my employees to question people if the picture doesn’t look right and thoroughly examine the ID presented to them. If any questions pop up about it they quiz the person and ask for a second form of ID. We have collected quite a few fake ID’s and real ones not belonging to the person using it. In the past Lt. John Parrish from ABT has stopped by and collected many of them. Create a safer environment for people. We had that open communication with the downtown unit for years. The last year or longer the faces have changed and the communication has been very limited. If someone has been arrested with fake ID or passing a drink back and forth between an underage and a person of age, we do not know what the offense is and without this communication we can’t educate our staff to be on the lookout even more than they already are for these actions. We patrol inside of the club checking for correct bands and are always on the lookout for kids trying to share a drink. If underage drinkers are caught doing so they are removed immediately from the premises and if the person of age provides someone with a drink they are both removed. We show that offender to the front door people so they can’t come back in and wristbands removed. Fake ID’s are becoming increasingly more complex with the age of computers these days. But we still manage to catch them. I honestly feel we do a very good job at keeping the underage people from drinking. I am at the bars working every night and pass my years of experience on to all my employees on what to look for. We have caught kids sneaking by getting their friends drinks. We, just like the police on the street, have an obligation to look out for people committing crimes inside the bar. But people will break these laws even knowing the consequences. We cannot [be] everywhere at all times, but we do cover the space and roam throughout all night looking out for people drinking underage. Paul John Zurich, Spannk’s security manager, does the hiring and firing of all security personnel and has attended multiple GPD responsible vendor educational programs. In his affidavit, Mr. Zurich testified that in doubtful situations, Spannk requires patrons to produce two forms of ID. The doormen check the IDs for marks indicating they are fakes: the ID has no hologram; the ID bends and shows wrinkles; or the dates on the ID “don’t add up.” If a patron’s age seems questionable, the security person will ask the patron to state his Zodiac sign, or his address, or the height given on the ID. The doorman will also ask the patron to provide a signature to compare to the one on the ID card. Mr. Zurich testified that he employs a spotter inside the bar to check for illegal activity, and he requires all staff persons to take turns roaming the premises to observe the activity of the patrons. Sean O’Brien works as a doorman at Spannk on Saturday nights. Mr. O’Brien’s full-time job is with the Transportation Security Administration (“TSA”) at Gainesville Regional Airport. In his witness affidavit, Mr. O’Brien testified that the TSA has specifically trained him in methods of checking for false or fraudulent IDs. Mr. O’Brien stated that he denies entry to persons when he concludes they are presenting false identification, and he denies entry to any person who does not present identification regardless of that person’s apparent age. He removes underage persons who are caught in the bar with alcoholic beverages. Mr. O’Brien affirmed that employees are constantly scanning the bar looking for underage persons who are sneaking drinks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Underage Prohibition Order issued to Spannk be vacated. DONE AND ENTERED this 27th day of August, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2013.
The Issue Should Respondent's Law Enforcement Certificate be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: Respondent was certified by the Commission on June 10, 1977, and was issued Law Enforcement Certificate Number 41580. The Administrative Complaint alleges that: (a) On or between January 1, 1973, and December 31, 1974, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Deborah Brice, a child under sixteen years of age, by fondling her breasts and kissing her neck; (b) On or between January l, 1976, and December 31, 1979, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Dorothy Spickard, a child under sixteen years of age, by putting her on his lap and tickling her near her vaginal area; (c) On or between January 1, 1976, and December 31, 1979, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Dawn Whitehead, a child under sixteen years of age, by digitally penetrating her vagina areas and placing her hands on his penis; and (d) On or between June 1, 1969, and December 31, 1971, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Susan Kleine, a child under sixteen years of age, by kissing her on the neck, French-kissing her, and forcing her on a bed and getting on top of her, simulating sexual intercourse. Debra Brice, Dorothy A. Spickard, Dawn Allison Steward (f/n/a Dawn Allison Whitehead), and Susan Kleine testified that Respondent touched them inappropriately during the middle 1970's while they were under the age of 18 years. Debra Brice, Dorothy Spickard, and Susan Kleine were around the age of 14 to 15 years at the time the inappropriate touching was alleged to have occurred. Dawn Steward was around the age of 8 to 9 years at the time the inappropriate touching was alleged to have occurred. Debra Brice, Dorothy Spickard, and Dawn Steward are nieces of Respondent's ex-wife, Carol, who was married to Respondent during the time that the alleged incidents were supposed to have occurred. Susan Kleine is a sister of Respondent's ex-wife, Carol. Respondent and Carol were married in 1966, and were divorced sometime around 1978-79. It was not until the latter part of 1993, approximately 20 years later, that Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine told anyone of this alleged inappropriate touching. Sometime around the latter part of 1993, Carol discussed this inappropriate touching with Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine. Sometime around the latter part of 1993, this alleged inappropriate touching was discussed in the presence of Debra Brice or Dorothy Spickard or Dawn Steward or Susan Kleine during therapy sessions involving Carol's and Respondent's child. While Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine appeared to be relatively clear on the facts concerning the alleged inappropriate touching, they were not clear on all the facts surrounding the alleged incidents. There was no evidence presented to corroborate the testimony of Debra Brice, Dorothy Spickard, Dawn Steward, or Susan Kleine. Respondent denies any inappropriate touching of Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine. Respondent admits tickling and wrestling with Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine in a playful manner but denies touching any of them in an inappropriate manner, specifically in an inappropriate sexual manner. There is insufficient evidence to establish facts to show that Respondent touched Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine in an inappropriate manner, sexually or otherwise, notwithstanding the testimony of Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine to the contrary which I find lacks credibility due to the reasons set forth in Findings of Fact 5 through 9.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that the Administrative Complaint filed against the Respondent be dismissed. DONE AND ENTERED this 26th day of June, 1997, in Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1997. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Thomas M. Lindsey 21367 Anderson Road Brooksville, Florida 34601 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Respondent grew up in Havana, Cuba and was a university student there when Castro came into power. As did most university students, Respondent initially supported Castro but later became disenchanted with the regime. Respondent became interested in photography as a boy and became proficient to the point he sold photographs to the news media and helped defray the expense of his medical training through photography. Following the Bay of Pigs Invasion, Respondent smuggled out of Cuba photographs of the Russian missiles that had been delivered to Cuba. Respondent acknowledged that he took all of the photographs and videotapes entered into evidence in these proceedings. At all times relevant hereto, Respondent was licensed as a physician by the Florida Board of Medical Examiners. He graduated from medical school in Madrid, Spain in 1964, completed his internship at Johnson Willis Hospital, Richmond, Virginia, in 1965, and his residency in psychiatry at the Menninger School of Psychiatry, Topeka, Kansas in 1968. Respondent came to Naples, Florida in 1969 as Director of Collier County Mental Health Clinic which post he held for several years before devoting all of his time to his private practice. Respondent was married in 1962, and divorced in 1978. He is the father of three children. His two older daughters are working on advanced degrees while the younger son is entering high school. Following his divorce Respondent concluded that by marrying at a young age, he had perhaps missed out on much of life and decided to try a more libidinous life-style. In 1980, Respondent became attracted to a 19-year old licensed practical nurse who was working at Naples Community Hospital. Although he saw her several times in the hospital, they did not engage in conversation but made eye contact in passing each other. In October 1980, another doctor referred a patient who had suffered head injuries in a motorcycle accident to Respondent for treatment. This patient, Joseph DiVito, was seen in the hospital several times by Respondent and again after DiVito was released from the hospital. At the first hospital visit with DiVito, Respondent was surprised to see Laura Hodge, the LPN at Naples Community Hospital, whose eyes had attracted Respondent. She was the woman with whom DeVito was living at the time of his accident. The charges in the Administrative Complaint involving Laura Hodge are sustained only if a doctor-patient relationship existed between Respondent and Hodge. The doctor patient relationship, if it existed, was related solely to the treatment provided DiVito. Hodge testified that she was counseled by Respondent jointly with DiVito and also alone; that Respondent gave her the drug Artine to give DiVito in the event he suffered a reaction from the drug Haldol, which was given DiVito to aid in his memory loss; that after his release from the hospital DiVito was like a baby who had to be taught to feed himself, to walk, and to get around; that she had lunch with Respondent twice, once at Keewaydin Island, where they went by Respondent's boat, and once at a restaurant in North Naples; that following the lunch she felt dizzy and does not remember removing her clothes at her apartment when returned there by Respondent and having pictures taken of her; that after being shown nude photographs of herself, she was afraid of Respondent and feared he would show the pictures to DiVito; that she Accompanied Respondent on an overnight trip to Miami where they shared a motel room; that they went to dinner at a caberet where she drank some wine and began feeling strange; that when they returned to the motel that night, she does not remember anything until the following morning when she awoke upset and began crying; and that Respondent then drove her back to Naples. Shortly thereafter, Hodge left Naples with DiVito and went to Panama City where DiVito operated a boat leasing business during the summer of 1981. She returned to Naples that fall but had no further contact with Respondent. Respondent testified that he was surprised to see Hodge the first time he went to DiVito's room in the hospital; that Hodge told him that she didn't want to stay with DiVito; that the principal person who took care of DiVito when he was released from the hospital was his brother, William DiVito; that DiVito had been a very active man and was anxious to leave the hospital before he was physically ready to do so; that he was ambulatory, could feed himself and his principal problem was loss of memory; that Hodge was never his patient; that they had lunch twice, once at Keewaydin Island and again at a restaurant in North Naples; that both of these times Respondent took numerous photographs of Hodge and gave them to her; that following the lunch and picture-taking at Vanderbilt Beach (North Naples) he drove her to the apartment she had just moved into; that he visited her at this apartment at a later date and while she changed clothes, he took pictures of her in various stages of undressing; that he showed her these pictures after they had been developed; that she accompanied him to Miami where they shared a motel room and went out to dinner; and that they returned to Naples the following day because Hodge was upset. Photographs of Hodge which were admitted into evidence are of a person who appears fully aware that she is being photographed and in many of the pictures appears to be posing. Haldol, the drug given DiVito, can cause an epileptic type reaction; however, the treatment for this reaction is by injection and not orally because of the time it takes oral ingestion to work. The testimony of Hodge respecting Respondent entrusting to her the Artine tablets to place in DiVito's cheek if he had a reaction to the Haldol is less credible than is the testimony of Respondent. Although Respondent saw Hodge when he was treating DiVito and talked to the two of them, he did not thereby make Hodge his patient. Furthermore, no credible evidence was presented that Respondent surreptitiously gave Hodge any drug which could cause her to not remember the taking of the nude photographs. Her coordination and awareness shown in those photographs belie the contention that she was drugged. Diane Beck, R.N., arrived in Naples in 1981 and worked as a nurse at Naples Community Hospital where she met Respondent. After declining several dates with Respondent, Ms. Beck accepted an offer to go scuba diving from Respondent's boat. This involved a weekend trip to the Florida Keys on the boat and they had sex over this weekend. Respondent also took some nude photographs of Ms. Beck with her consent. Evidence presented to establish a doctor-patient relationship between Respondent and Beck included one instance where, following a D & C on Beck, the gynecologist asked Respondent if he had Tylenol #3 which Beck could take if needed for pain. When Respondent replied in the affirmative, the gynecologist did not write a prescription for medication for Beck. Although Beck testified that while they were living together, Respondent gave her Darvocet, Motrin and Tylenol #3 for dismenorreah from which she chronically suffered, Respondent denied prescribing these medications for her. The most likely scenario in this regard is that Respondent had such medication available in his home and Beck took them in accordance with instructions previously received from her gynecologist. This did not create a doctor-patient relationship between Respondent and Beck. Respondent prescribed benzodiasepines to many of his patients as a tranquilizer and sleeping pill. During the period December 1981 and October 1982 the Upjohn representative (detailer) whose territory included Respondent's office, gave Respondent 465 Xanax tablets as samples. Xanax is a benzodiasepine and the Xanax tablets were .25 mg and .5 mg in strength. The Upjohn company detailer who serviced the Naples area between October 1982 and June 1984 did not testify and no record of benzodiasepines left as samples with Respondent during this period was available at the hearing. Records of those drugs are maintained by Upjohn for the current year and two preceding years only. At the time of this hearing, the earliest record Upjohn had of drugs dispensed to physicians was January 1, 1985. Around November 1982, Upjohn came out with a benzodiasepine called Halcion. This drug was left with Respondent by detailers as samples. Halcion is packaged in sleeves with two tablets in a sleeve. Generally when Halcion is left as a sample, the box contains five sleeves with two tables per sleeve. Halcion has advantages over some other benzodiasepines that it works quickly, the effects wear off quickly and it leaves no hangover effect. Furthermore, the patient may have a memory lapse for the time sedated with Halcion. Use of Halcion is contraindicated by a woman of childbearing age because the drug can adversely affect and cause deformities in a fetus in the early stages of development. Halcion (as well as other drugs) may be obtained by a physician in a stockbottle which generally consists of 100 tablets in a square bottle with a round top. To obtain a stockbottle the physician places his order with the detailer, signs the appropriate FDA forms, the detailer sends the order to his area office and the stockbottle is mailed directly to the physician. No credible evidence was presented that Respondent ever obtained a stockbottle of Halcion from Upjohn. When benzodiasepines are taken in conjunction with the ingestion of ethyl alcohol, the effects of both are enhanced. Hence, there is a danger in taking sedatives while drinking alcoholic beverages. Alcohol alone is a sedative and it is quickly absorbed in the soft tissue such as the brain. When a benzodiasepine is taken at the same time ethanol is being ingested, the alcohol provides a vehicle which allows the benzodiasepine to be more quickly absorbed into the body. While Diane Beck was dating and living with Respondent, several videotapes were made of her and Respondent engaged in various sexual activities. Ms. Beck acknowledged that she voluntarily participated in some of these videotapes but that she was unaware that others were taken. She has no recollection that some of the tapes were being made, nor did she subsequently (before the charges here considered first arose) learn of these videotapes. In those tapes, Beck had been administered Halcion by Respondent without her knowledge or consent. This finding is based upon the following facts: Respondent told Beck he had given her a lot of Halcion. When Beck became pregnant by Respondent in mid-1983, Respondent told her of potential dangers caused by the use of Halcion and suggested she have an abortion. An appointment was made by Respondent with Dr. McCree, a gynecologist, to perform the abortion and on July 11, 1983, Dr. McCree performed a D & C on Beck, aborting the fetus. On one or more occasions Beck observed what appeared to be residue in her after dinner drink, and on at least one occasion asked Respondent about it. Respondent told her it was sugar from the old brandy she was drinking. Respondent acknowledged that he often performed sexual acts on Beck while she was "passed out" and unaware of what he was doing. However, he contended she enjoyed it and had given him permission. The videotapes of a comatose female being shifted around by Respondent to improve the angle for the pictures being taken. This does not appear to be a person merely intoxicated, certainly not one intoxicated with ethanol. This person is as limp as a rag with all muscles appearing to be totally relaxed who is certainly oblivious to what is going on. It is not believed a person merely intoxicated (unless dead drunk) could be moved and manipulated the way Beck was without some reaction. Had Beck been dead drunk, she would perhaps still be intoxicated when she awoke and/or be hung over. Neither of these events occurred. Respondent's steady relationship with Beck terminated in April 1984 after the date for a wedding could not be agreed upon. She moved out of his house but they remained on friendly terms until the existence of the videotapes became known. The third complaining witness, Sandi Karppi, met Respondent in June 1984 on the beach in Naples. At the time Ms. Karppi was an LPN on private duty with a patient where she had one hour off in the late afternoon which she used to walk on the beach. One day while walking along the beach, she was followed by Respondent who was attracted to the energy with which she walked. Respondent overtook her and engaged her in conversation. During the conversation Respondent disclosed his name and that he was a psychiatrist. Ms. Karppi disclosed to him that she had a pap smear taken which was suspicious, that a second test had been done, and she was anxious to obtain the results but her doctor did not return her calls. Respondent volunteered to obtain the results of the later test and inform her. Karppi told Respondent that she walked the beach almost every afternoon and Respondent began visiting the beach to meet her during her hour off from her nursing duties. A short time after the first meeting Respondent called Karppi to tell her that he had the results of her lab test and offered to take her to dinner to give her the results. She consented. Thereafter he continued to meet her on the beach and engage her in conversation. Respondent's version of the timing of the initial events of their relationship is a little different from the version testified to by Karppi; however, these differences are not material to the issue here presented. Respondent testified that Karppi told him of her problems with the pap smear test several days after their first meeting and that he agreed to get the results of the tests. Dr. King advised Respondent obtaining the results of the pap smear and passing them to Karppi. During the meetings on the beach and on boat trips Karppi took on Respondent's boat, Respondent took numerous photographs of Karppi. On one occasion, they went on an overnight trip to Keewaydin Island with Respondent's son Eric and a friend of Eric. The two boys slept in a tent on the beach leaving Karppi and Respondent on the boat. On another occasion they went alone on the boat to Captiva Island where they spent the night on board. Karppi testified that she went to sleep fully clothed while at Keewaydin Island in a bunk bed on one side of the cabin with Respondent in another bed and when she awoke, she was naked. Nude photographs of Karppi in a comatose state are contained in Exhibit 1. Karppi never consented to having her picture taken in the nude. Respondent's version of the nude photographs is that he frequently talked to Karppi about taking nude photographs but she never consented, saying only that maybe she would allow the photographs if out of town or if she was tipsy. Respondent contends these photographs were taken while they were at Captiva Island with only the two of them on the boat and that Karppi drank a lot of wine and passed out. He then disrobed her and took the photographs. Respondent contends he gave Karppi no drugs before she passed out. However, it is concluded that Karppi was given some sedative along with the wine she drank. This conclusion is based upon the following facts: Respondent had access to Halcion, Xanax, Tylenol #3, and other drugs that could induce coma. Respondent had used such drugs on Diane Beck and was aware of the potential for use of these drugs. In order to take some of the photographs in Exhibit 1, Karppi had to be moved around enough to awaken one who was just sleeping or only sleeping off ethanol induced sleep. Some of the actions of Respondent as depicted in these photographs would have awakened or aroused one who was not fully comatose. Karppi has no recollection such photographs were ever taken, though she was sober and had no hangover the next morning. Subsequent to the boat trips Respondent took a vacation during most of the month of July during which he travelled to Europe and the Caribbean. Upon his return to Naples, he renewed his courtship with Karppi and she moved into his home August 26, 1984, the day after Respondent's oldest daughter returned to college. Respondent's testimony that they first had sex that night which Karppi spent in his bedroom is not disputed by Karppi. If they engaged in sex before that time, Karppi was unconscious and unaware of it. During part of the time Karppi stayed at Respondent's home and shared his bedroom, her mother also visited and slept in another bedroom at Respondent's home. This relationship terminated around September when Karppi moved into her own apartment. She and Respondent remained friendly and saw each other occasionally. One night in late December 1984, Karppi called Respondent from the hospital to tell him she had a headache and to ask him to prescribe some medication for her. After learning that Karppi had tried without success to get her doctor on the telephone and that her doctor had prescribed Cafergot for her headaches, Respondent called in a prescription to the hospital pharmacy to give 4 Cafergot tablets to Karppi. The label from the bottle dated December 29, 1984 was admitted as Exhibit 16. In early January 1985, Respondent went to Vail, Colorado, with another woman and Karppi offered to stay at his house with Respondent's elderly mother while he was gone. He agreed and Karppi moved in. While looking for a book in Respondent's bedroom closet, Karppi discovered the nude photographs of her which were admitted into evidence as Exhibit 1. Having no recollection these pictures had been taken, she was quite shocked and called Respondent at his hotel in Vail. He told her to be calm and they would discuss the matter when he returned. Following a more extensive search, Karppi found numerous other photographs of naked women as well as several videotapes. Karppi contacted her doctor for advice, and he referred her to an attorney who in turn referred her to the State Attorney's Office. At the State Attorney's Office, she produced the photographs of herself she had removed from Respondent's residence and her affidavit was taken. On the basis of Karppi's affidavit and the photographs, a search warrant was obtained and on January 11, 1985, a search of Respondent's home was conducted. During this search, Exhibits 1 - 16 were seized. Subsequent to the conclusion of the hearing, those exhibits unrelated to any individual involved in these charges which were objected to at the hearing were not admitted into evidence as having no relevance to these charges. Following the search of Respondent's residence, criminal charges were brought against Respondent in the Circuit Court in and for Collier County alleging sexual battery and administering drugs to Karppi without her knowledge or consent. Respondent was acquitted of those charges.
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 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.
