The Issue Whether or not on or about the 11th day of June, 1976, on the Respondent's licensed premises located 5916 Phillips Highway, Jacksonville, Florida, the Respondent, its agent, servant or employee, one Myra Kathryn Watkins, did unlawfully engage in open and gross lewd and lascivious behavior with a male customer, one Patrick Francis Murphy, by dancing in a topless manner while rubbing her pubic area on his and allowing him to kiss her breasts, in violation of s 798.02, F.S., thereby violating s 561.29, F.S. Whether or not on or about the 11th day of June, 1976, on the Respondent's licensed premises located at 5916 Phillips Highway, Jacksonville, Florida, the Respondent, its agent, servant or employee, one LaMae Simpson, did unlawfully engage in open and gross lewd and lascivious behavior with a male customer, one William Wehrmann, by dancing in a topless manner while allowing him to place U.S. currency into her g-string and fondle her legs, in violation of s 798.02, F.S., thereby violating 56l.59, F.S. Whether or not on or about the 11th day of June, 1976, on the Respondent's licensed premises located at 5916 Phillips Highway, Jacksonville, Florida, the Respondent its agent, servant or employee, one Ellen Marie Collins, did unlawfully engage in open and gross lewd and Lascivious behavior with Vice Officer H. R. Hall by dancing in a topless manner while rubbing her pubic region and buttocks on his lap and attempting to place her breasts into his mouth, in violation of s 798.02, F.S. thereby violating s 561.29, F.S.
Findings Of Fact At all times material to the allegations found in the Notice to Show Cause, the Respondent, G and B of Jacksonville, Inc., trading as Climax, located 5916 Phillips Highway, Jacksonville, Florida, was licensed under License No. 26- 780, Series 4-COP, held with the State of Florida, Division of Beverage. On June 11, 1976, one Myra Kathryn Watkins was working as a dancer for the licensee in the subject licensed premises. One of the customers for whom she was dancing was Patrick Francis Murphy. Murphy paid her $10.00 to dance the duration of five records for him. During the course of these dances, on more than one occasion, Murphy kissed the bare breasts of Watkins and she allowed this to occur. On June 17, 1976, one LaMae Simpson was working as a dancer for the licensee in the subject licensed premises. She was dancing topless and wearing a g-string. One of the patrons for whom she danced was William Wehrmann. While standing in the vicinity of where Wehrmann was located, she allowed Wehrmann to fondle her legs with his hands and, at some point in time, held her g-string costume away from her body to allow him to place some form of currency into the area of the g-string with his hand. On June 11, 1976, Officer H. R. Hall of the Jacksonville Sheriff's Office entered the subject licensed premises. While seated at a table in the premises, he was approached by one of the dancers working there, Elaine Marie Collins. Collins asked if Hall would like her to dance for him. Hall agreed to do this and paid $2.00 for the dance. Collins danced topless for Hall and on four or five occasions during the course of the dance, tried to place her breasts in Hall's mouth. She also rubbed her buttocks over his groin area. During the course of the activities described above, as entered into by the named dancers, no attempts were made by the employees within the licensed premises to stop this activity.
Recommendation It is recommended that the license of the Respondent, G and B of Jacksonville, trading as Climax be revoked. DONE AND ORDERED this 18th day of April, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Tunnicliff, Esquire Division of Beverage 725 Bronough Street Tallahassee, Florida 32304 Harry Katz, Jr., Esquire 337 E. Forsyth Street Jacksonville, Florida 32202
The Issue Should Respondent be terminated from the Polk County School System based on the allegations contained in the letter from Gene Reynolds, Superintendent of Schools (Superintendent), Polk County, Florida, dated March 15, 1999?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner Polk County School Board is the county agency responsible for providing public primary, secondary, and adult education in Polk County, Florida, and to facilitate that responsibility the Board hires certified teachers for classroom and administrative activity. Respondent is employed by the Board as an elementary classroom teacher, a position he has held since March 8, 1993. During the 1998-99 school year, Respondent was employed as a kindergarten classroom teacher at Eastside Elementary School, located in Haines City, Florida. During his employment as a classroom teacher with the Board, Respondent has received satisfactory evaluations. Prior to the events giving rise to this proceeding, Respondent has had no disciplinary problems during his employment as a classroom teacher with the Board. In January 1999, Respondent missed three days of school as a result of an ankle injury. While Respondent was absent, a substitute teacher taught his classes. While looking for a video tape to show the class, the substitute teacher discovered what appeared to be a pornographic video tape in the cabinet next to the video cassette recorder where other video tapes used in the classroom were stored. The substitute teacher removed the video tape and delivered it to Josephine Howard, principal of Eastside Elementary School. The video tape contains explicit, graphic, hard-core pornographic sequences of adult men engaged in explicit sexual acts. Respondent purchased the video tape at a local video store and brought it to Eastside Elementary School for purposes of viewing the tape when students or other persons were not present. Respondent stored the video tape in the classroom in an unlocked cabinet next to the video cassette recorder with other video tapes used for educational purposes Respondent did not desire or intend to allow students to view the video tape. However, since the video tape was stored in an unlocked cabinet, students did have access to the video tape and could have inadvertently viewed the video tape. This incident has not been reported in any newspaper, including those covering the Polk County area, nor has there been any coverage by any radio or television station, including those covering the Polk County area. Other than the incident being brought to the attention of the Board for disciplinary purposes and the news release of the Board's action, the incident has not been made public. In fact, there has been a concerted effort by the Board, the Superintendent's office, and the office of the principal at Eastside Elementary School to prevent this matter from becoming public until after final action by the Board. Since the public is not generally aware of this matter, there has been no outcry of public, parental, or student demand for Respondent's dismissal. Likewise, there has been no demand by any parent that their child not be placed in Respondent's class. Although there has been no public "airing" of this incident, there has been an inquiry by at least one newspaper for the facts of this incident after final action by the Board. Therefore, it appears that there will be a public "airing" of the facts of this incident upon final action by the Board. Respondent has received numerous awards for his teaching technique and work in education. Additionally, Respondent has the support of his friends, associates, and fellow church members. Josephine Howard has taught or held positions as principal or as an assistant principal in the public schools in Haines City, Florida for approximately 30 and one half years. Sixteen and one half of those years have been as either a principal or as an assistant principal. Josephine Howard has lived in Haines City, Florida for approximately 34 years. Josephine Howard, based on her knowledge of, and experience with, the staff at Eastside Elementary School, and her knowledge of, and experience with, the community of Haines City and Petitioner's serious conduct of storing the video tape in a cabinet where persons other than school personnel would have access to such video tape, creating the possibility for children of such sensitive age to be exposed to the contents of the video tape, is of the opinion that upon this matter becoming public knowledge, Petitioner's effectiveness as a teacher at Eastside Elementary School, as well as other schools within the community of Haines City, would be impaired. Dennis Dunn has been employed by the Polk County School Board for 30 years, holding positions as a teacher (in elementary school, junior high school, and high school), assistant principal, principal (in junior high school and high school), deputy superintendent, and assistant superintendent for personnel. Mr. Dunn's work with the Polk County School System has brought him in touch with not only the community of Haines City, but all of the communities within Polk County, Florida Dennis Dunn, based on his knowledge of, and experience with, the staff of the several public schools in Polk County and his knowledge of, and experience with, the several communities that make up Polk County and Petitioner's serious conduct of storing the video tape in a cabinet where persons other than school personnel would have access to such video tape, creating the possibility for children of such sensitive age to be exposed to the contents of the video tape, is of the opinion that upon this matter becoming public knowledge, Petitioner's effectiveness as a teacher within all of Polk County would be impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order finding that Petitioner committed misconduct in office, that just cause for dismissal has been shown, and that Petitioner's contract of employment with the Board is terminated. DONE AND ENTERED this 20th day of August, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1999. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP Post Office Drawer 30 Bartow, Florida 33831 Phillip E. Kuhn, Esquire 1533 Tomahawk Trail, South Lakeland, Florida 33813 Mark S. Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Mr. Glenn Reynolds Superintendent of Schools Polk County School Board 1915 South Floral Avenue Bartow, Florida 33830-0391 Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the emergency order of suspension and notice to show cause dated November 25, 1991; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Lunar Guppies, Inc. is the holder of an alcoholic beverage license, number 58-03679, series 2-COP, for a licensed premises known as Club Space Fish Cafe (Cafe) which is located at 536 West Church Street, Orlando, Florida. All activities described herein took place at the licensed premises. Michael Brown is the president and majority shareholder of Lunar Guppies, Inc. Michael Buchanan is the corporation's vice president and he owns fifteen percent of the shares issued by the entity. At all times material to the allegations of this case, both owners, Mr. Brown and Mr. Buchanan, were present on the licensed premises. Some time prior to November 18, 1991, Mr. Brown was contacted by an individual known to him only as "Merle." Apparently, Merle represented the band known as "G.G. Allin and the Murder Junkies" (hereinafter referred to as the group or the band) and was responsible for seeking work for the group. After some discussions, the parties reached a verbal agreement whereby the band would play the second set at the Cafe on November 18, 1991. Flyers for the performance billed the event as the group's only Florida show. All arrangements were verbal, and were conducted between Mr. Brown and Merle. Initially, Mr. Brown expected the band to perform at 11:00 p.m. on the designated date; however, after checking in and reviewing the equipment, the group announced that they would return to perform around 11:30 p.m. During the check in meeting with the band, Mr. Brown advised the group that he did not expect them to damage property belonging to the Cafe. Prior to the group's performance Cafe staff had covered speakers with plastic to protect them from moisture. Also, areas of the stage were lined with plastic. According to Mr. Brown, such precautions are standard when rowdy bands are booked for the Cafe. The speakers, which belong to the Cafe, are expensive and sensitive to moisture. Spills from beverages are not uncommon with certain types of bands. Also prior to the group's performance on November 18, 1991, Mr. Brown prepared a written warning which was posted on the Cafe's door. While there is some dispute as to the exact language of the warning, the purpose was to warn Cafe patrons that the performance (by the band) was expected to contain language and subject matter which might be considered offensive or obscene by some. The exact language of the warning is unknown because shortly after the police arrived on the scene someone removed the sign and its current whereabouts is unknown. That the sign existed is not disputed. Upon his arrival back at the Cafe, the lead singer of the band, G.G. Allin a/k/a Kevin Allin (Allin), appeared for the band's microphone check wearing only a hooded jacket, studded dog collar, and shoes. Shortly after the check, removed his jacket to reveal that he was nude but for the dog collar and shoes. Also at that time the drummer for the band appeared and played in the buff as well. Just prior to, and during the first song performed by the band: Allin broke glass and rubbed it into his head causing a flow of blood which continued to stream down his head throughout his performance; he smashed his microphone into his head to further damage the wounds; he constantly grabbed his penis; and he leaped off the stage, knocked a female patron to the floor, and rubbed his face into her groin area simulating oral sex. The female patron kicked Allin and resisted his advances. At the conclusion of the first song, Allin grabbed a male patron and rubbed his penis against the man's head. During the second song, Allin's acts prompted most of the Cafe's patrons to flee the interior of the licensed premises. Most fled after Allin defecated onto the Cafe floor, urinated into his own hand (so he could drink it), followed by his licking the floor (with the feces) and spitting and throwing it at patrons. When Allin returned to the stage, he stuck his finger into his rectum and rubbed the microphone in the anal area as well. During the remainder of the performance (three or four more songs), Allin continued to dance around the Cafe (encumbered only by the microphone cord), continued to fondle his penis, allowed at least one patron to fondle his penis, and poured himself a beer at the bar. At all times described above, Mr. Buchanan observed the performance and did nothing to deter Allin. During the performance there was a sound and/or light technician above the Cafe's main floor who watched the band and, presumably, assisted. The Cafe has flood lights above the main floor area where Allin performed. When the patrons from the Cafe fled into the street outside, officers in a patrolling police car observed the commotion. Two officers, Browning and Arnott, went to the Cafe to investigate. Upon entering the premises, Officer Browning observed Allin on the floor rubbing his head into glass. Obviously, Officer Browning noted that Allin was au naturale. At that point the band's performance ceased. The term "performance" has been used herein loosely to describe what occurred at the Cafe; such "acts" could hardly be described as entertainment. After taking statements from Cafe patrons, the police officers filed criminal charges against Allin in connection with the incidents described above. Incidental to the arrest, Mr. Brown and Mr. Buchanan voluntarily went to the police station and filed sworn statements regarding the night's activities. While Mr. Buchanan was present behind the bar during the entire performance (approximately twenty-six minutes, six songs) his sworn statement is replete with factual errors regarding what occurred. Additionally, Mr. Brown's sworn police statement incorrectly chronicled the acts which had occurred. Mr. Brown's explanation at the hearing has not been deemed credible nor were his comments regarding the disappearance of the written warning which had been posted on the Cafe's door. At the start of Allin's performance, Mr. Buchanan and Mr. Brown should have provided appropriate security for the Cafe patrons. At least one female patron was touched by Allin and demonstrated her displeasure at such conduct. Volunteer security help (which incidently fled with the others) is not sufficient when a band's performance might be considered to be, and anticipated to be, rowdy (as the plastic suggested). Once the band member Allin exhibited inappropriate conduct (as early as the first two songs), the Cafe owners should have taken measures to stop the performance. Given public sensitivity related to exposure to body fluids, the Cafe owners were negligent in not aborting Allin's act once it began, and in not previewing his proposed performance since they were made aware of the potentially objectionable nature of the show (as evidenced by the warning and Mr. Brown's prior conversations with band members and groupies). Even if Mr. Brown and Mr. Buchanan did not know the full extent of Allin's proposed performance, once he exhibited offensive and lewd conduct, they bore a burden to interrupt the act and take precautionary measures to insure the safety of the Cafe patrons. Mr. Brown's explanation that he was fearful for his own safety (and thus excused from action) has not been deemed credible. At the minimum, Mr. Brown or Mr. Buchanan could have sought assistance from 911 (which was not done). Had the police not arrived when they did, no telling how long the Cafe owners would have allowed Allin to reign. Presumably, until the set contracted for was finished. As it was, Mr. Brown paid the band for a partial performance. Subsequent to the Allin performance, the Cafe owners have drafted a written agreement to attempt to avoid any reoccurrence of an unlawful performance. The Cafe did not prior to, or subsequent to, November 18, 1991, allow an unlawful performance such as that which is described herein to be conducted on its licensed premises. The acts which occurred on November 18, 1991, are the sole basis for disciplinary action against this licensee.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order suspending Respondent's alcoholic beverage license for a period of ninety (90) days retroactive to the date the emergency order was entered. DONE and ENTERED this 7th day of January, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of January, 1992. APPENDIX TO CASE NO. 91-7697 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: The Petitioner footnoted many of its proposed findings of fact. Such footnotes are not accepted as they contain argument, comment, or irrelevant matters. The proposed findings have been addressed without reference to footnotes as follows: Paragraphs 1 through 5 are accepted. With the deletion of the phrase "Once back on the stage" paragraph 6 is accepted. Paragraph 7 is accepted. With regard to paragraph 8 it is unknown if Merle was, in fact, the band's manager; otherwise, the paragraph is accepted. With the deletion of the second sentence which is rejected as hearsay, paragraph 9 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: NOTE: Respondent's proposed findings of fact begin with the numbered paragraph 4. Paragraphs 4 through 8 are accepted. Paragraph 9 is accepted but is irrelevant. Paragraph 10 is rejected as argument or comment. The weight of the credible evidence suggests that, utilizing ordinary care, the Cafe owners should have made inquiries to assure that the band would not perform lewd acts (they were on notice of the band's potential for offensive behavior). The first sentence of paragraph 11 is accepted; otherwise rejected as argument or comment. Paragraph 12 is rejected as contrary to the weight of the credible evidence. Respondent knew the band's performance might be offensive or obscene and failed to use ordinary care to assure it would not be unlawful. Paragraph 13 is accepted to the extent that it states most patrons fled; however, others remained and the Respondent allowed the performance to continue. COPIES TO: Janet E. Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Donald D. Conn General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Richard W. Scully Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Klein Chief Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Howard S. Marks Graham, Clark, Pohl & Jones 369 North New York Avenue Post Office Drawer 1690 Winter Park, Florida 32790
The Issue Whether by showing the movies "Death Wish II", "First Blood", and "Police Academy", or portions of those movies, to respondent's fourth grade students, respondent violated Section 231.28(1)(f), Florida Statutes, and Rule 6B- 1.06(3)(a), Florida Administrative Code.
Findings Of Fact STIPULATED FACTS: Respondent holds Florida teaching certificate 367043 covering the areas of Elementary Education, English and Reading. At all times material hereto, the respondent was employed as a fourth grade teacher at Woodland Elementary School in the Pasco County School District. During the 1983-84 school year, the respondent permitted his fourth grade class to view the movie "Death Wish II", an "R" rated movie. Subsequently, the respondent's principal instructed the respondent that in the future, no films could be shown to the respondent's students without first obtaining a specific permission of the principal. Following the showing of "Death Wish II", the principal adopted a new policy for the 1984-85 teacher handbook which stated, "No video movies are to be shown in the classroom without special permission from the principal." The new policy requiring special permission from the principal was discussed and explained to all teachers at a faculty meeting on or about August 20, 1984. The respondent was in attendance at the meeting. On June 3, 1985, the respondent permitted his fourth grade class to view approximately forty-three minutes of the movie "First Blood" at which time he stopped the movie due to his concern over the escalating violence depicted in the movie. The respondent also permitted his fourth grade students to view the movie "Police Academy". The respondent did not obtain special permission from his principal to show those movies to his students. The movies contained scenes involving violence, nudity, profanity and implied sexual acts. DEATH WISH II At the end of the 1983-84 school year, the respondent's fourth grade class joined Mr. Younglove's sixth grade class to watch video movies in Mr. Younglove's classroom. The movie "Death Wish II" was shown. The movie was on a video disc that did not have a rating on it. However, Mr. Younglove had a card which contained numbers indicating when the movie would have to be stopped to edit certain parts of the movie by fast forwarding. Mr. Younglove operated the video equipment and fast forwarded the movie at certain times. There was insufficient evidence to determine what specific portions of the movie "Death Wish II" had been edited by fast forwarding. Prior to allowing his students to view the movie "Death Wish II", the respondent had not seen the movie himself and had taken no steps to personally determine the movie's rating. Further, respondent, was not familiar with the theme, plot or story line of the movie other than believing that "it had something to do with the bad guys getting it from the good guys for a change". "Death Wish II" is an extremely violent movie containing graphic rape scenes, numerous scenes of cold-blooded murder committed by the movie's "hero", and vulgar language. Prior to the first rape scene, which occurs within the first ten minutes of the movie, it is apparent that the movie is not suitable for fourth graders. From the build-up to the rape scene, it is fairly obvious what is going to occur. The entire theme of the movie is inappropriate. It suggests that the criminal justice system does not work, that it is acceptable to obstruct the police in their investigation of a crime, and that it is justifiable for a victim of a crime to seek his own revenge by systematically executing the perpetrators of the crime. Mr. Kelley, the Guidance Counselor at Woodland, succinctly summarized the movie by stating, "it is totally inappropriate for showing not only nine and ten-year-olds, but I would say it's inappropriate for most human beings." Subsequent to the showing of "Death Wish II", Mr. Stevens, a parent of one of respondent's students, called Mr. Renninger, the principal, about the showing of the movie. Mr. Renninger called respondent into his office and discussed the matter with him. Mr. Renninger told respondent that an "R" rated movie was not acceptable to show elementary students, and that in the future, respondent could not show any video movies to the students without first obtaining the principal's permission. Respondent talked to Mr. Stevens and was very apologetic about the showing of the movie. TEACHER'S HANDBOOK-PAGE 42B Prior to the opening of the 1984-1985 school year, the teachers at Woodland Elementary School, including respondent, attended a faculty meeting at which time revisions to the teacher handbook were discussed. Page 42B, entitled "Responsibilities of Teachers - Lesson Plan", was specifically discussed. Page 42B contains the following language: All films, filmstrips and VCRs tapes MUST be listed in your lesson plans. No video movies are to be shown in the classroom at any time without special permission from the principal. The requirement that teachers obtain special permission from the principal prior to showing any video movie was added to the handbook as a result of the showing of "Death Wish II". "POLICE ACADEMY" AND "FIRST BLOOD" On June 3, 1985, at the end of the 1984-85 school year, respondent's fourth grade class once again joined Mr. Younglove's sixth grade class to view video movies. It was the end of the school year, and the movies were not intended to have any educational value but were simply to entertain the students. The teachers were not required to submit lesson plans for that period of time. On the Friday immediately preceding Monday, June 3, 1985, Mr. Younglove told respondent that he had obtained authorization from the assistant principal to show "P" and PG" rated films to his classroom. Mr. Younglove had received permission slips signed by the student's parents indicating that "P" and "PG" film would be shown. The respondent also sent permission slips to the parents of his students. Respondent was advised that the movies would be brought in by the students. When respondent's students arrived at Mr. Younglove's classroom, the movie "First Blood" was in progress. Mr. Younglove informed respondent that the movie had been edited for television and was "all right". However, at some point thereafter, Mr. Younglove left the classroom leaving respondent to monitor the combined classes. As the movie continued, respondent became concerned by the escalating violence in the movie and therefore ordered the film stopped. The video tape was then rewound to the beginning of the tape to the movie "Police Academy". Prior to permitting his students to view "First Blood", the respondent had not seen the movie himself and was not familiar with its plot, theme or story line. Neither respondent nor Mr. Younglove had received special permission from the principal or assistant principal to show the movie "First Blood". The portion of "First Blood" shown to respondent's class contained profanity and physical violence and, as admitted by respondent, was not appropriate for viewing by fourth grade students. Mr. Younglove was still absent from the room when the movie "Police Academy" began. The respondent did not know the movie's rating but questioned Mr. Younglove about the rating when Mr. Younglove returned to the classroom. Mr. Younglove informed respondent that it was rated "PG". Prior to permitting his students to view the movie, respondent was not familiar with the movie's theme, plot or story line, although he assumed that it was a comedy because he had seen "Police Academy II" advertised on T.V. The movie "Police Academy" contains numerous profanities and vulgarities which are regularly spaced throughout the movie. The movie contains female nudity and two implied sex scenes. Although the movie was stopped and fast forwarded, apparently on two occasions when nudity had been observed, the students viewed all of "Police Academy" except for approximately two minutes and 30 seconds when it was fast forwarded and the screen was blank. As admitted by respondent, the movie "Police Academy" is not appropriate for viewing by 10-year old children. Indeed, the movie is so filled with inappropriate language and activity that it would be impossible to edit out all the objectionable material and have much of the movie left. During the showing of "First Blood" and "Police Academy", there was considerable activity going on in the classroom. Students were going in and out of the classroom to get drinks of water. Several students were practicing karate, having just recently seen the movie "Karate Kid". Others were listening to music on cassette tape recorders. Some students were playing "finger break", and some students were crawling around under the tables. The noise level in the classroom was fairly loud, and many students were paying little attention to the movie. On the Wednesday following the showing of the film, respondent called the mother of one of his students who had been upset about the movies being shown to her daughter. During the conversation, the parent advised respondent that the movies were "R" rated. This was the first time that respondent learned of the rating of the films. RESPONDENT'S CONDUCT By allowing fourth grade students to view the movies, "Death Wish II", "Police Academy", and "First Blood", the respondent showed a complete lack of judgment. After the first several minutes of both "Police Academy" and "Death Wish II", it becomes quite apparent that the movies are not suitable for 9 and 10-year olds. Respondent's belief that the movies were rated "PG" does not in any way justify the respondent's behavior in permitting his class to continue to view movies that are totally inappropriate for that age group. After the incident involving "Death Wish II", respondent had been specifically told that he had to obtain permission from the principal prior to showing any video movies. He was also aware of the written policy which requires this. Nevertheless, he allowed his fourth grade class to view "Police Academy" based on Mr. Younglove's representation that the movie was rated "PG" and that the assistant Principal had given permission for "PG" rated movies to be shown, neither of which representation, as it turned out, was accurate. RESPONDENT'S EFFECTIVENESS AS A TEACHER Respondent began teaching in the Pasco County School System in the 1974-75 school year. Since that time, he has received evaluations indicating that he has been a "satisfactory" or "effective" teacher every year except for his first evaluation as a first year teacher, which indicated that he needed improvement in every area listed, and an evaluation for the period of August, 1978, to February, 1979, which indicated that his performance was unsatisfactory in three of the five categories listed. Since the 1979 evaluation, the respondent has been evaluated as satisfactory in every school year. At the hearing, the parents of several of respondent's students testified that respondent had been a good teacher for their child and that they would not hesitate to have respondent teach another one of their children even though they were aware of the content of the movies that were shown in the classroom. Letters from the parents of 19 other students who had respondent as a teacher supported the opinion of the five parents who had testified on behalf of respondent that respondent was a good teacher. Respondent has maintained a good rapport with both his students and their parents, and he has been very effective in improving some of his students' academic skills. Dr. John Long, Assistant Superintendent for Administration, believes that respondent's effectiveness as a teacher has been seriously affected by his conduct, but not so seriously reduced that respondent could not have taught again in Pasco County on a probationary status at a school other than Woodland. Dr. John S. Joyce, the Director of Personnel, believes that respondent's effectiveness as a teacher had been drastically reduced as a Pasco County teacher in that respondent's action in showing inappropriate movies for a second year in a row indicates that respondent is either insubordinate or defective in judgment.
Recommendation Based on the foregoing Findings off Fact and Conclusions of Law, it is concluded that respondent has violated Section 231.28(1)(f), Florida Statutes, and Rule 6B-1.06(3)(a), Florida Administrative Code, as alleged in the Amended Administrative Complaint. However, in considering the appropriate penalty, respondent's improper conduct should be balanced with his satisfactory performance as a teacher over the last six years and the positive effect he has had on many of his students. It is, therefore, RECOMMENDED: That a final order be entered finding that respondent has violated Section 231.28(1)(f), Florida Statutes, and Rule 6B-1.06(3)(a), Florida Administrative Code, and suspending respondent's certificate for one (1) year. DONE and ENTERED this 8th day of September, 1986, in Tallahassee, Florida. DIANE A. GRUBBS 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 8th day of September, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1802 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings On Proposed Findings of Fact Submitted by the Petitioner 1.-2. Accepted in paragraph 1. 3.-4. Rejected as unnecessary though accepted as true. Indicated in Background as to who the individuals are. Accepted in paragraph 1. Accepted as inferred in paragraph 7. Accepted in paragraph 5. 8.-9. Accepted generally paragraph 6. Rejected as immaterial in that studies do not relate to the effect of a single incident. Accepted generally in paragraph 6. Rejected as unnecessary. Accepted generally as set forth in paragraph 4. Rejected as based solely on hearsay evidence. Accepted generally in paragraph 7. 16.-17. Accepted in paragraph 8. Accepted in paragraphs 9, 11 and 13. Accepted in paragraphs 3 and 11. Accepted in paragraph 17. Accepted in paragraph 11. Accepted generally in paragraphs 3 and 11. 23.-25. Accepted generally in paragraph 12. 26.-28. Accepted in paragraph 13. 29-38. To the degree these are not a synopsis of the testimony, they are accepted generally in paragraph 14. Rejected as immaterial. Accepted generally in paragraphs 17 and 20. Rejected as specific finding as cumulative. Rejected as specific finding as unnecessary since no contrary finding was made. Rulings On Proposed Findings of Fact Submitted by the Respondent 1.-3. Accepted generally in paragraph 4, portions not included rejected as immaterial or not supported by competent evidence. 4. Accepted to the degree stated in paragraph 4, that there was no competent evidence to determine which portions had been edited. 5-6. Accepted generally in paragraph 7 and by omission of a contrary finding. Accepted generally in paragraph 8; next to last sentence rejected as not supported by competent evidence and as immaterial. Accepted to the degree relevant in paragraph 9. 9.-10. Accepted generally in paragraph 10. 11.-12. Accepted in paragraphs 11 and 15. 13.-15. Accepted generally in paragraphs 11, 13, and 14. 16.-18. Rejected as specific findings as immaterial and merely as recitation of testimony, although generally accepted in paragraphs 14 and 15. 19. Accepted to the degree relevant in paragraph 16. 20.-23. Rejected as immaterial. 24-25. Accepted to the degree relevant in paragraph 20. 26. Accepted generally in paragraph 18. 27.-28. Accepted generally in paragraph 19, although the numbers not accepted since there was no indication on several letters that the individuals were parents or, if parents, when their child was in respondent's class. 29.-40. Accepted to the degree relevant in paragraphs 19 and 7. Parental comments were considered in mitigation of penalty as stated in conclusions of law. COPIES FURNISHED: J. David Holder P.O. Box 1694 Tallahassee, Florida 32302 Thomas W. Young, III 208 West Pensacola Street Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Karen Barr Wilde Education Practices Commission Executive Director Department of Education The Capitol Tallahassee, Florida 32301 =================================================================
Findings Of Fact The Respondents, Sandra Hoskins and Michael Mancuso, (the licensees), hold license number 62-957, Series 4 beverages by the drink for consumption on the premises of Sweethearts, located at 408 U.S. 19 South, Clearwater, Florida. Sweethearts is known as a bar where, in addition to buying alcoholic beverages, the mostly male patrons can watch "exotic dancing" on stage and pay $5 plus tip for a "lap dance." The dancers are physically attractive females dressed in underwear or "T-back" bathing suits. 1/ They are engaged by the management of Sweethearts to perform at Sweethearts. As they dance on stage, the disc jockey on duty introduces them by their stage names to the patrons present and encourages the patrons to ask the dancers to perform "lap dances" for them personally. The dancers also directly solicit "lap dances" from the customers. At the end of each shift, each dancer "tips out" $10 to the "house," i.e., pays the licensees $10, and "tips out" $5 to the disk jockey. As evidenced by what took place at Sweethearts on April 13 and August 25, 1989, a "lap dance" typically lasts for one song played by the disk jockey. The dancer escorts the patron to one of the booths lining the perimeter walls of the bar area, sits the patron down near the edge of the booth bench and begins "dancing." During the "dance," which is performed to the rhythm of the music, the dancer rubs various parts of her body, including the genital area, buttocks and breasts, against various parts of the body of the customer, including his genital area and face. Although the customer remains fully dressed during the "dance," and the dancer does not remove any clothing (i.e., she remains dressed either in underwear or in her "T-back" bathing suit), the "dance" is intended to simulate various sex acts, and purpose of the "dance" to arouse the customer sexually. Sometimes, the "dancer" fondles herself and acts as if she herself is becoming sexually aroused by the "dance." Sometimes, the customer rubs the breast area of the "dancer" or grabs her buttocks in the area of the anal cleft, and the "dancers" typically do little to stop or deter this behavior. Although the "lap dancing" occurs in a part of the bar where the lighting is red and subdued, it is highly implausible that the licensees, if on the premises, or the licensees' representative(s) on the premises would not know that the "lap dancing" described above was taking place on the premises. It is open and notorious. There was some evidence that there might be a nominal official policy at Sweethearts prohibiting patrons from touching the dancers. But the evidence is clear that management "winks at" violations of this official policy, if there indeed is one, and management policies in place at Sweethearts encourage the dancers to allow the patrons to touch them. (Allowing it to continue increases the chances of getting tips from customers such as these.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking license number 62-957, Series 4-COP, issued to the Respondents, Sandra Hoskins and Michael Mancuso, d/b/a Sweethearts, located at 408 U.S. 19 South, Clearwater, Florida. RECOMMENDED this 25th day of October, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 25th day of October, 1990.
Findings Of Fact Respondent is currently certified by Petitioner as a corrections officer and holds certificate number 68-86-502-01, which was issued on March 14, 1986. At the time of the events in question, Respondent was employed as a correctional officer by the Orange County Sheriff's Office. On April 4, 1987, Sergeant Frank Fink of the Orlando Police Department was working undercover in plainclothes in Langford Park, which is located at 1800 East Central Boulevard in Orlando. Langford Park is a known gathering place for homosexuals. It is located in a residential neighborhood and near a school. Sgt. Fink's assignment was to work as part of a homosexual detail and arrest anyone who offered to commit a lewd act, which by Orlando City Ordinance 43-18 is defined as anything contrary to acceptable public standards. At approximately 6:00 p.m., while it was still daylight, Sgt. Fink observed Respondent near the restrooms. Ten to twenty minutes later, Sgt. Fink saw Respondent elsewhere in the park, talking to another man. Shortly thereafter, Sgt. Fink saw Respondent seated in a gazebo in a densely vegetated portion of the park. Sgt. Fink seated himself beside Respondent, about five feet away, and commented that it was a beautiful day and nice park. The ensuing conversation, which proceeded in a normal tone and volume so as to be clearly understood by both men, was innocuous up to the point at which Respondent asked Sgt. Fink what kind of people came to the park and Sgt. Fink answered, mostly gays. Then Respondent asked what these people did in the park, and Sgt. Fink answered, oral sex. Respondent asked if these people ever got caught, and Sgt. Fink replied, sometimes. Respondent asked where such acts took place, and Sgt. Fink told him, on the trails behind the bushes. Respondent then informed Sgt. Fink that Respondent went to a local pornographic newsstand and watched films of homosexual acts. He told Sgt. Fink that men performed oral sex on each other in booths at the newsstand. At this point, Respondent told Sgt. Fink that Respondent was thinking about performing sex with another man and that he would like to perform oral sex on Sgt. Fink. After confirming his understanding of Respondent's offer, Sgt. Fink asked if Respondent wanted to pay him money for the act, but Respondent declined. Respondent indicated that he did not want to get caught, so Sgt. Fink led him down a trail to a safe place. After leading him about 100 yards, Sgt. Fink took Respondent to police waiting in a clearing within the park where Respondent was arrested for lewd behavior.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of violating the requirement of good moral character and revoking his certificate as a corrections officer. DONE and RECOMMENDED this 8th day of August, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1988. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jack J. Curcio, pro se 1931 Stanton Street Deltona, Florida 32738 Robert R. Dempsey Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Janet E. Ferris General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue for consideration in this case is whether Respondent’s alcoholic beverage license Number 39-01036, Series 4-COP, for the premises located in the 900 block of Franklin Street in Tampa, Florida, should be disciplined in some manner because of the matters alleged in the Notice to Show Cause entered herein.
Findings Of Fact At all times pertinent to the issues herein the Petitioner, DABT, was the state agency responsible for the issue of alcoholic beverages licenses in Florida and the regulation of the sale and consumption of alcoholic beverages in this state. Respondent, Bay Entertainment, Inc., now known as Freedom Rings Entertainment, Inc., operated a night club, Solar, in the 900 block of Franklin Street in Tampa. There is some disagreement as to whether the facility was located at 911 Franklin Street or at 913 Franklin Street. The confusion is irrelevant to the issues for consideration since there is no indication a different club was operating at the second location, and there is no question regarding the identity or the licensure of the facility where the indicated misconduct was alleged to have taken place. The operation was licensed by the Petitioner under alcoholic beverage license number 39-01036, 4-COP. DABT S/A Elaine Paven first went to Solar on December 13, 1996 at approximately 11:55 p.m.. At the time, she was accompanied by S/A Murray and a confidential source. After paying the cover charge to the doorman, the party was directed to the second floor of the facility where the bar was located. From that location, they could look down to the first floor where another bar and the dance area were located. When Paven and her party went to the bar, she observed Tiffany Middlesexx, a transvestite and known narcotics user, sitting on the bar against the wall. Several male dancers, either wearing only a G-string or nude with a towel over their privates were performing. Paven and Murray went up to Middlesexx and asked to buy cocaine. Middlesexx asked them how much they wanted, and Paven gave the confidential source twenty dollars to buy some. The source gave the money to Middlesexx who, in return, gave the source a white powder which, in turn, was delivered by the source to Paven. All during this transaction, employees of the facility were routinely working in the immediate area. Other patrons appeared to be buying from Middlesexx as well, though Paven drew this conclusion only from her observation of individuals who approached Middlesexx as her source did. Paven has no direct knowledge of whether cocaine or any other proscribed drug was transferred from Middlesexx to the other patrons or whether money was transferred. In addition, however, as Paven and her party were leaving the club that night, she observed another known cocaine dealer, not further identified, enter the club. Paven next went to Solar on December 21, 1996. Tiffany Middlesexx was again sitting on the bar as before. Paven approached Middlesexx and asked for cocaine. In response, Middlesexx asked how much Paven wanted, and Paven transferred twenty dollars to Middlesexx. With that, Middlesexx took a packet of white powder out of the purse he/she was carrying and gave it to Paven. Paven saw several other similar transactions by Middlesexx that evening, during which Solar employees were present and could have observed them, and at no time did any club employee attempt to interfere with or prevent the purchases. That same evening, up on the second floor of the bar, Paven overheard a conversation between two other patrons who were discussing obtaining Ecstasy, also a proscribed narcotic. In addition, she observed patrons exiting the rest rooms snuffing and rubbing their noses which, to her, based on her training and experience, was indicative of drug use. Paven next went to the club on the evening of January 10, 1997, arriving just before 10:00 p.m. and staying until after midnight. During that period, however, she left for a short while and returned. Sometime that evening, during a conversation with Dennis, a bartender on the second floor, he told her that the club took a liberal and permissive approach toward drugs, and that the owner usually stayed on the first floor. Paven also went to the first floor that evening and, while in the restroom, notwithstanding signs posted prohibiting more than one person in a stall at a time, observed patrons go into the stalls in groups, and heard snuffing sounds coming from them which to her, under the circumstances, indicated the use of narcotics, usually cocaine. She did not observe and use however, nor did she confiscate for testing any of the substances involved. On her return to the second floor that evening, Ms. Paven met with another patron, identified as Darren, who spoke in general of the use of narcotics in clubs. She recalls no specific reference to the use of narcotics at Solar, however. Before she left the club that night, in another conversation with Dennis, the bartender, she mentioned she was going to get “party favors,” and he used the word, “stuff.” Both, in the vernacular of the drug milieu, relate to narcotics. That same night, though early in the morning of January 11, 1997, Paven additionally saw Tempo, also a transvestite male and a known cocaine dealer, on the second floor of the club. Another transvestite male, Gilda, was also there, at the bar, with Tony, who identified himself as an off-duty employee there, at the time, as a patron. Paven approached Tempo and offered him/her $20.00 for which, in return, she received a plastic bag of a substance later identified as cocaine. Dennis, the bartender, was standing behind the bar right there and, in Paven’s opinion, could not have failed to observe the transaction occur. Tony was, in fact, not an employee. He had been employed at the club as a bar back before the club opened for business but was injured within the first few minutes on the job and never returned to work. Agent Paven again went to the club at 10:45 p.m. on January 17, 1997, but left shortly after arriving and did not return until early on the morning of January 18, 1997. At that time Dennis was on duty as bartender and a group of individuals, known to Paven as drug dealers, including Tempo, Tony, and Brittany, were also present. At approximately 1:15 a.m. that morning, while up on the second floor, Paven was approached by Tony who told her he was leaving and offered to get her “something” before he left. Paven gave Tony $20.00, after which he went over to a group at the end of the bar and immediately came back with a bag of a powdered substance which he gave to her. He then asked her to save him a “bump,” which, in the drug culture, means a hit of cocaine. That same evening, Paven observed three male dancers performing down on the first floor. Two of these were nude. As she watched, she saw patrons approach the dancers and give them tips to be allowed to fondle their private parts. Dennis came downstairs while this was going on, jumped on the bar, and removed his shirt, and lowered his pants to reveal his buttocks and, presumably, his genitals, to the patrons. Dennis admits to climbing on the bar, removing his shirt, and displaying his buttocks, but denies revealing his genitals. Paven also observed some of the dancers leave the stage and approach patrons who would then touch the dancers’ genitals. Galiano, a known cocaine user, was there that night, going back and forth from Tempo to Brittany, and into a back room reserved for employees. Paven observed her at the time, snuffing and rubbing her nose, though she did not observe any direct use of any substance. Later that evening, in a discussion with Paven at the bar on the second floor, Galiano denied having any cocaine to sell but offered Paven a line of cocaine if she would come downstairs to the restroom. When Paven went downstairs with Galiano, she was given the line of substance, thereafter pretending to use it but in reality not doing so. While on the first floor, Paven asked Tempo if she had any coke. In response, Tampo said she was out, but had an order for more in and was waiting for delivery. On January 25, 1997, Paven was in Solar looking for Tiffany Middlesexx. Tony approached her and asked if she wanted any cocaine. Paven said she did and gave Tony $20.00. Approximately five minutes later, Tony came back and gave her a bag with a substance in it which was purported to be cocaine. He then suggested he and Paven go somewhere for a “bump.” Taking Paven upstairs, Tony then poured some of the substance out onto the back of her hand for her to snort it. He did the same for himself and actually ingested it, while Paven dumped hers out. That same night Tony told Paven not to go to a second bar mentioned because a raid was planned. Also the same night, Tiffany Middlesexx and Tempo were present at the club, as was the club’s chief of security, Tim, who was known to Paven as a drug dealer. Paven also observed nudity by the dancers, and sexual fondling of the male dancers for tips by some patrons, and she heard discussions between patrons about getting cocaine from elsewhere, but she did not observe any transfers take place. Agent Paven returned to the club on January 28, 1997, a slow night for business. She observed one of the male dancers dancing on top of the first floor bar and witnessed several instances where the dancer squatted in front of a patron who, it seemed to Paven, committed fallatio on him in front of other patrons. This was repeated with several patrons while Paven, as well as Agent Murray, who was also present, watched. Paven brought this to the bartender’s attention, but the bartender denied seeing anything untoward. On February 1, 1997, at approximately 1:34 a.m., Paven again entered Solar and proceeded to the first floor bar area. Tiffany Middlesexx was again sitting in his/her regular spot on top of the bar, and Paven asked if he/she had any cocaine for sale. In response, Tiffany Middlesexx offered Paven three bags for $50.00 or single bags for $20.00 each. When Paven handed over $50.00, Middlesexx opened up his/her purse and took out three bags of cocaine which was transferred to Paven. All this time, another patron was waiting and made a purchase when Paven was through. Paven also observed several other identical transactions take place with other patrons that same evening though she cannot say with certainty what substance was passed. Since the procedure was the same, it is likely the substance transferred to the other patrons was also cocaine, and it is so found. Middlesexx subsequently left the premises while Paven was still there. On February 8, 1997, Paven went back to Solar, arriving at 12:45 a.m. She went to the first floor and again observed Tiffany Middlesexx sitting in the regular spot on the bar. Paven approached Middlesexx and asked for cocaine and subsequently gave Middlesexx two $20.00 bills, in return for which she received two bags of cocaine. At this time, other employees of the Respondent were present behind the bar, and in Paven’s opinion heard and observed the transaction. Paven also watched a white male buy four bags of apparent cocaine from Middlesexx from no more than five feet from where the transaction took place. After making his purchase, that same white male showed the bags he had purchased to his friends and the group departed. Later that evening, on the second floor of the club, Paven purchased one zip-lock bag of what appeared to be cocaine from Tempo because Tempo did not want to deal on the first floor. Paven paid Tempo $20.00 for it. At no time during any of the above mentioned visits did any of the Respondent’s employees or management try to stop the purchases. The only warnings Paven heard were to watch out for the police. Paven claims she didn’t see any signs prohibiting drug activity in the club, nor did she observe club employees prohibit sales to other patrons. On any given night she was there, Paven would observe six or seven individuals on the premises who were known to her, from prior buys or sales, some of which took place within Solar, to be drug dealers. The parties stipulated that the substances purchased by Paven from individuals inside the club was cocaine. While Paven denied seeing any signs prohibiting the use or sale of drugs in the club other than in the restroom, she admits there were some signs at the entry, but even then, she cannot be sure of what the signs there said. Another sign in the bathroom prohibited more than one person in a stall at the same time. There is no doubt that the noise level in the club when the music was playing and the club was full was considerable. Club employees contend that it would have been impossible for them to hear any of the conversations between Paven and any of the individuals from whom she bought drugs because of it, because they even had to bend over the bar to hear patrons’ orders for drinks. However, Paven and Murray both insist they were able to hear and contend the bartenders, while possibly not able to hear the exact conversations taking place during the buys, could not have failed to observe what was going on. The noise certainly did not dissuade anyone from buying or selling. In addition, Paven observed security personnel hired by management passing through the club from time to time. These individuals would stop and talk to patrons and would attempt to prevent patrons from jointly occupying the restroom stalls. This served to halt drug sales while the security officer was present, but the activity resumed when the officers left. Most of the drug transactions which took place between Agent Paven and Middlesexx or Tempo were witnessed from three to four feet away by Agent Murray as well. Murray notes that whenever Paven tried to make a buy from Middlesexx, there was always someone in line before them, and Murray also observed what appeared to be drug purchases by other patrons from Middlesexx. Usually a bartender was in the immediate area of the purchase transaction. Murray cites, by way of exception, the incident on January 25, 1997, when Tony took Agent Paven to another area of the bar. Though Murray observed anywhere from six to seven drug dealers on the premises, known to her as such from prior investigations, at no time did she ever see an employee of the club, or a member of management, try to interfere with a transaction, nor did anyone ever state that such activity was illegal. It seemed as though the only concern expressed by anyone employed by the club related to the potential for the use of undercover police. Murray also observed male dancers at the club engaged in conduct which, it appeared to her, was salacious and obscene. It appeared to her than some patrons committed actual acts of fellatio on the dancers who would squat on the bar or dance floor in front of them. On at least one occasion, Murray changed her location at the bar so as to be able better to see what was going on. In her opinion, there was no doubt as to the nature of the activity. Notwithstanding the allegations of both Paven and Murray regarding the obscene activity, Diane M. Smith, the owner of the dance group which performs at Solar, categorically denies that any such activity took place involving her employees. Normally, she claims, she was present whenever her dancers performed. At any given time, she had three dancers active. One was on the center podium, one on one of the bars, and one was on break. Her dancers would wear jeans for the first set and shorts, or possibly a T-back, for the second set. She adamantly asserts there was no nude dancing or lewd or lascivious conduct permitted. She would not permit it, and management knew that. Her dancers performed from approximately 11:30 p.m., until 2:00 a.m., and at all times, there were two chaperones present. She was also often present before and after the show, and she never saw any conduct as described by Paven or Murray. This relates to drug activity as well as activity regarding the dancers. In fact, she claims, management made it very clear that drug activity was not permitted in the club. Jeffery Winemiller, who has a college degree and who attended medical school for two years before personal commitments brought him back to the Tampa area from California, was working at Solar as a bartender the night the Emergency Order of Suspension was entered. Mr. Winemiller has attended Responsible Vender training several times and is aware of how to check among patrons for drug use and abuse. He usually worked on the first floor at the rectangular bar on Friday and Saturday nights, and occasionally on other nights as well. Mr. Winemiller contends that while he worked at Solar, he never witnessed any drug activities or any oral sex being conducted on the premises. He claims there were signs at the front door and in the rest rooms warning against the use of drugs in addition to signs prohibiting entrance to persons under age and prohibiting more than one person in a restroom stall at any one time. Neither the men’s nor the women’s restroom had entry doors. Only the women’s restroom had doors on the stalls. Tiffany Middlesexx is a known drag queen - a performer in his/her 50’s, who is very well known in the transvestite community. Whenever he/she comes into Solar, he/she would have an entourage of from three to six people with him/her. Middlesexx would usually position himself/herself on the L-shaped bar on the first floor across from the dance podium on a space which was cleared for him/her. According to Winemiller, normally a bartender would not be working in that immediate location. As Winemiller recalls, Friday nights are rather quiet until after midnight, when up to seven hundred people might be in the club. During the period from midnight to club closing, a bartender might serve several hundred drinks and would be too busy to note what any particular patron was doing. In addition, as he described it, the noise level was high, and he would not be able to overhear any patron conversations. Specifically, Winemiller contends, he did not see Middlesexx or any of the other dealers described by Paven and Murray sell drugs in the bar, nor did anyone ever tell him anyone was selling drugs. As told to him, ownership policy on drugs was no tolerance. Any drug activity was to be reported to management or to security. By the same token, no lewd sexual activity was permitted either. Mr. Winemille claims he does not know Tiffany Middlesexx, Tony, or Tempo to be drug dealers. He claims not to use drugs himself and professes not to know who does. As a result of this raid and the closing of the club, he is now out of a job. In addition, his loan of $35,000 to Mr. Engerer to start up the operation is in jeopardy, though Winemiller contends he is not concerned about this. Donald Bentz, an employee of the Tampa AIDS Network has been in Solar on several occasions as a part of his work. He knows Mr. Engerer well and was a regular customer from May 1996, when the club opened, until it closed. During that period, he went there at least once a week and claims he never saw drug activity or lewd acts being carried on there. Mr. Bentz goes to several gay-oriented clubs as a part of his job and has put on fund raising functions with some of them. Because of his organization’s non-profit status and the thrust of its activities, it is careful with whom it operates and carefully checks out any operation before becoming involved with it. Mr. Bentz knows Tiffany Middlesexx as a transgendered performer who is popular in the gay/transgender community. On several of the occasions when he has been at Solar, Mr. Bents has seen signs permitting only one person at a time in the rest rooms and recalls seeing a sign stipulating no drugs allowed at the entrance. In addition, he has seen security personnel routinely checking for drugs. Though Bentz has heard rumors that Middlesexx deals drugs, he claims never to have seen it at Solar nor did he ever see anyone do or talk about illicit drugs on the premises. In his opinion, both Mr. Engerer and Mr. Winemiller considered drugs to be out of bounds at Solar. They wanted a long-term, drug-free relationship with the gay community. In Bentz’ opinion, if either member of management heard of drugs or lewdness going on at Solar, it would have been stopped. Dennis Fleming worked part time as a bartender at Solar between August 1996 and February 1997, usually on Friday and Saturday nights, and on a couple of evenings during the week. He, too, took Responsible Vendor training. As he recalls it, the noise level in Solar when it is crowded is very high, which makes it impossible to overhear patrons’ conversations. He knows Tiffany Middlesexx, who usually sat not far from where he worked the bar. During all the time Fleming worked at Solar, he claims, he never saw Middlesexx sell drugs to anyone inside or near the club. Though he knows Tony from that individual’s brief employment at the club and his subsequent patronage, he doesn’t know if Tony deals drugs The same is true for Tim. Fleming claims not to know Tempo. His periodic conversations with management reinforced the explicit no-drug policy which is expressed to the public by the signs posted about the building. Though he admits to having danced at the club, removed his shirt, and unbuttoned his pants, he denies having ever removed his pants or lowered or removed his underpants. Steven Stamberger was employed at night as a security officer at Solar from July 1996 to its closing. His post was at the entrance door where he checked identification for age and searched back packs of patrons to look for contraband. According to Mr. Stamberger, while doing this he never discovered any drugs being carried by any patrons. Mr. Stamberger also contends there were signs posted at the front entrance which indicated that drugs were not allowed on the premises. There were also signs in the bathrooms to that effect. From time to time each night he would walk through the club on the way to the bathrooms, and he claims never to have seen any drug activity during any of those walk-throughs. He also admits to knowing Tiffany Middlesexx and Tempo but denied knowing whether either sold drugs. He claims no one discussed it with him, but he knows that drugs are not tolerated on the premises. Mr. Stamberger recalls having seen an act of oral sex being committed in the VIP room one time. When he saw it, he went over to the parties, interrupted the activity, and put them out of the club for the evening. To his knowledge, they were not barred from the club for this. He denies, however, having ever seen any of the dancers disrobe or allow patrons to touch their genitals for tips in the club. In 1996, Mr. Engerer, the owner and sole officer of the corporation which operates Solar, invested $50,000 the company. This money came from his 401(k) plan and his stock investments. At the time, he claims, he had very little experience in nightclub operation, and when he took over, he hired a firm to provide Responsible Vendor training to him and his staff before he opened. Mr. Engerer worked every Friday and Saturday nights and, in addition, occasionally also went in during the week. On the weekends, he would open the club, set up the bar, and work at bar three as a bartender. Bar three is where Tiffany Middlesexx generally sat. It has two cash registers -- one at the “L,” and one at the far end. He worked at the far end. Engerer knew Tiffany Middlesexx from his/her performances at other clubs, but asserts he had no knowledge of that individual’s dealing in narcotics, either before or after he bought the club. He claims he never saw any drug deals take place in the club. Engerer claims not to have known Tempo or anything about him/her before or after he bought the club, especially about drug activity. Mr. Engerer admits to knowing Tony, who was recommended to work at Solar because of his prior experience at other clubs. However, Tony was injured the first night on the job and never actually worked there. Engerer claims he had no idea Tony dealt drugs, nor did he ever see Tony deal at Solar. Club policy, according to Mr. Engerer, which he claims he expressed to all employees, is that there is a zero tolerance for drugs, and patrons and employees are to be evicted or fired for possession of unlawful drugs on the club premises. With the large crowds they get on the weekends, he claims it was very hard to hear, especially for the bartenders who worked at least three feet from the patrons. Mr. Engerer claims that signs given to him by the Responsible Vendor trainers were posted throughout the club: at the front door, at the top of the stairs to the second floor, downstairs in the bar, and in each restroom. He had several security people on the floor on the weekends to ensure there was no drug activity in either the bar areas or the restrooms. According to Mr. Engerer, he had no prior indication from the Division or other police agencies that they had any suspicion of ongoing drug activity, nor had he heard of any prior complaints about his establishment. Club policy also prohibited lewd activities, and Engerer claims he had no knowledge of such conduct going on there. He did not ignore it nor would he condone it, he claims. Mr. Engerer also claims he was never told by anyone that Tiffany Middlesexx, Tempo, or anyone else, for that matter, was selling drugs in Solar. The first he knew of any of it, he asserts, was when the Emergency Order of Suspension was served. Had he known Tim was selling elsewhere, Tim would have immediately been fired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking Respondent’s 4-COP alcoholic beverage license number 39-01036, for the premises located at 911-913 Franklin Street in Tampa, and imposing an administrative fine of $5,000. DONE AND ENTERED this 13th day of August, 1997, in Tallahassee, Leon County, Florida. _ ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1997. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Joseph L. Diaz, Esquire 2522 West Kennedy Boulevard Tampa, Florida 33609 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Linda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue to be determined is whether Respondent, Alexander Roy, is guilty of violating section 1012.795(1)(d), (f), (g) and (n), Florida Statutes (2011). If violations are found, the appropriate penalty must be determined.
Findings Of Fact Respondent holds Florida Educator Certificate 1035877, covering the areas of mathematics, middle grades integrated curriculum, and social studies, which is valid through June 2015. At all times material to the allegations in the Administrative Complaint, Respondent was employed by the St. Lucie County School Board (SLCSB) as a mathematics teacher at Manatee Elementary School, also known as Manatee K-8 School. On or about January 13, 2012, Respondent was arrested in Osceola County, Florida, as the result of allegations that Respondent used an internet provider and “knowingly persuaded, induced, enticed and coerced an individual who had not attained the age of eighteen years, to engage in sexual activity.” The allegations were based on the probable cause affidavit of Kevin Kulp, Special Agent for the Florida Department of Law Enforcement, who worked on the undercover operation giving rise to Respondent’s arrest, which stated that Respondent contacted a person on-line that he believed to be the mother of a 13-year-old girl in order to have sex with both the mother and the daughter. The “mother” and the “daughter” were undercover police officers. As a result of Respondent’s arrest, a search warrant was executed to search Respondent’s residence in St. Lucie County, Florida. According to Detective Longson, the search revealed that Respondent possessed approximately 75-100 images of minors engaged in explicit sexual conduct. The analysis of the information seized at Respondent’s home also included photos and videos of a teenage girl, approximately 16 years old, engaged in explicit sexual acts with Respondent. On January 17, 2012, as a result of his arrest, Respondent was placed on temporary duty assignment at his home. On or about March 5, 2012, Respondent was charged by indictment with one count of Enticing and Attempting to Entice a Minor to Engage in Sexual Activity in violation of 18 U.S.C. § 2422(b), and four counts of Possession of Child Pornography in violation of 18 U.S.C. § 2252(a)(4)(B). A Superseding Indictment containing the same charges was filed May 31, 2012. On March 27, 2012, he was suspended without pay by the SLCSB because of the federal criminal charges against him. On April 10, 2012, Respondent was terminated from his employment by the SLCSB, based upon his inability to report for work because of his imprisonment. On or about June 15, 2012, Respondent was tried in federal court before a jury. He was found guilty of all five counts. On September 12, 2012, United States District Court Judge K. Michael Moore adjudicated Respondent guilty on all five counts, and sentenced him to life in prison as to Count 1, and 120 months of incarceration as to each of Counts 2 through 5, with the penalty for all five counts to be served concurrently. Upon release, Respondent is to be placed on probation for life, a condition of which is to comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901. et seq.), as directed by the probation officer, the Bureau of Prisons, or any state sex offender agency in a state in which he resides, works, is a student, or was convicted of a qualifying offense. Also included in the Special Conditions of Supervision are that Respondent may not possess or use any computer, with the exception of pre-approved use in connection with authorized employment; that Respondent shall not have personal, mail, telephone, or computer contact with children under the age of 18; that Respondent shall not be involved in any children’s or youth organization; and that Respondent shall participate in a sex offender program. Respondent’s arrest, prosecution, and conviction were covered by the media, in the newspaper and on the radio, television, and internet. Respondent’s conviction significantly impairs Respondent’s effectiveness as a teacher in the community. Respondent’s certification is for middle school grades. The prohibition from having contact with children under the age of 18 makes it impossible for him to hold employment as a teacher in the public school system. As stated by Maurice Bonner, the Director of Personnel for St. Lucie County Schools, “[t]here is absolutely no way that the students and the parents and the community would have any faith in him being alone in a classroom with kids even for one minute. And he would not be able to effectively be in a classroom. Or be on campus, period, where there are children present.” His testimony is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding Respondent guilty of all four Counts in the Amended Administrative Complaint and permanently revoking his certification. DONE AND ENTERED this 2nd day of August, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2013. COPIES FURNISHED: David Holder, Esquire J. David Holder, P.A. 387 Lakeside Drive Defuniak Springs, Florida 32435 Alexander Roy, Register # 99238-004 United States Penitentiary Post Office Box 24550 Tucson, Arizona 85734 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
