The Issue The issue in this case is whether Respondent, Just 1 More Bar and Grill (hereinafter the "Bar"), discriminated against Petitioner, Mildred R. Smith, by refusing her entry into the Bar due to her race, African-American.
Findings Of Fact Petitioner is an African-American woman. The Bar is a Florida sole proprietorship which operates as an establishment selling alcohol for consumption on the premises. Despite its name, there is no grill or food service at the Bar. The Bar is owned by Kerry Winkler, a Caucasian male. On or about May 8, 2011, Petitioner was going to meet a male friend at an establishment across the street from the Bar. Petitioner could not remember the exact date, but thought it was in April or May. Petitioner was accompanied by a female friend. Petitioner and her female friend had just left church, and it was approximately three or four o'clock on a Sunday afternoon. Upon arrival at the male friend's establishment, no one was there. Petitioner decided to go into the Bar to have a beer while she waited. Her companion did not join her. Petitioner recounts that as she started to enter the Bar, a man stood in the doorway, held out his hand, and said, "You can't come in here." Nothing more was said. The man was a large white man and wearing a "biker's jacket" with a rag on his head. He had a large mustache. Petitioner says that she could see into the Bar and that all the patrons in the Bar were white. She turned around and walked back to her car. As she crossed the parking lot, a man sitting on a motorcycle said, "Man, that was quick." Petitioner concluded that she had been discriminated against because of her race. She believed she had been denied admission to the Bar because she is African-American. She filed a complaint with the Florida Commission on Human Relations about the incident. In her verified complaint, Petitioner said that she "was met by a white female (Kerry Winkler) who told me I could not enter the building and that I was not welcome there." Under oath at the final hearing, Petitioner said that she could not explain her verified statement to the Commission, because she remembers being met by a large white male, not a woman. She did not know why the name Kerry Winkler was in her signed statement. Kerry Winkler, the owner of the Bar, is, in fact, a Caucasian male. At the final hearing, Petitioner was introduced to Kerry Winkler; she said he was not the man who met her at the door of the Bar. No one associated with the Bar knows who the man was that Petitioner met at the front door. There are no employees fitting his description and neither the owner, nor patrons at the Bar, recognized the person Petitioner described. Several regular patrons of the Bar testified at final hearing. Each of them was an African-American male. Each affirmed the Bar's open policy of allowing all people to come into the Bar. None of them had ever witnessed any discriminatory behavior at the Bar, especially by the owner who they all knew and respected. Neither the owner, nor his wife (who was likely operating the Bar on the day in question), could identify the person that Petitioner described. No one by that description is an employee or otherwise affiliated with the Bar. Neither the owner, nor his wife, was aware that Petitioner had allegedly been denied admission into the Bar until several months after the fact. They received notice of the allegation from the Commission well after the fact. Petitioner did not contact the Bar after the fact to make a complaint or report the alleged incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Mildred R. Smith in its entirety. DONE AND ENTERED this 8th day of August, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 8th day of August, 2011. COPIES FURNISHED: Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mildred R. Smith Post Office Box 4158 Lake Wales, Florida 33859 Robert H. Grizzard, II, Esquire Robert H. Grizzard, II, P.A. Post Office Box 992 Lakeland, Florida 33802-0992
The Issue The issue in this case is whether the application for a Class "D" security officer license submitted by Alejandro Rodriguez should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, and the entire record of this proceeding, the following findings of fact are made: The Department of State is the state agency responsible for regulating and licensing private security officers. Sections 493.6100 - .6126, Florida Statutes. On July 15, 1994, Mr. Rodriguez and two friends, Eliseo Figueroa and Albert Gonzalez, went to the Miracle Center Movie Theater complex in Miami, Florida, to meet Albert's girlfriend and one of her friends. They telephoned one of the women to let her know that they were going to be late, and they arranged to meet in the theater showing the movie "True Lies." When the men arrived at the theater complex, they were not able to buy tickets for "True Lies" because the theater was sold out; instead, they purchased tickets for the movie "Lion King." When the men entered the theater complex, they began walking toward the theater showing "True Lies." They were intercepted by the theater manager, who told them they could not go into that theater because it was full. The men told the manager that they were meeting friends who were in the theater and needed to go into the theater just to make contact. Although they told the manager that they did not intend to watch the movie, he refused to let them go into the theater to find their friends, telling them that it would disturb the moviegoers. The manager also refused to go into the theater himself to locate the two women the men were to meet. As this exchange was taking place, one of the women came out of the theater, saw the men, and returned to the theater to get her friend. The two women joined the three men, and they began walking across the theater lobby on their way out of the complex. Mr. Rodriguez and Mr. Figueroa were walking together, and the two women and Mr. Gonzalez were walking ahead of them. Mr. Gonzalez made a derogatory comment about the manager, which he overheard. The manager took offense, told the group that he was going to call the police because of the derogatory remark, and sent the assistant manager to find the off-duty police officer who was providing security at the theater. Meanwhile, the two women went to the restroom, Mr. Gonzalez went to the concession stand, and Mr. Rodriguez and Mr. Figueroa went into the theater showing the movie "Lion King," where they stood in the back and watched the movie. After several minutes, the manager, the assistant manager, and Officer Luis Ruiz, the off-duty police officer providing security for the theater, entered the theater. The manager asked Mr. Rodriguez and Mr. Figueroa to step outside into the lobby, which they did. Once they were in the lobby, Officer Ruiz told Mr. Rodriguez and Mr. Figueroa that they had to leave the theater complex, that "the party is over." Mr. Rodriguez demanded to know why they were being asked to leave since he and Mr. Figueroa had purchased tickets and had done nothing wrong. The manager told them they had to leave, without giving any explanation. Mr. Rodriguez again demanded to know why. Officer Ruiz repeated his order that they leave. Mr. Rodriguez refused and again demanded to know why. Officer Ruiz told him that he would be placed under arrest if he did not leave the theater complex. During this exchange, Mr. Rodriguez used profanity and his protests became louder and louder. Several of the movies had ended, and patrons were crowding into the lobby area where the group was gathered. Officer Ruiz became more and more agitated, and the situation generally deteriorated. Even after Officer Ruiz threatened Mr. Rodgriguez with arrest, he still refused to leave. Officer Ruiz told him that he was under arrest and was going to jail, and he grabbed Mr. Rodriguez's wrist to restrain him so he could put on handcuffs. When Officer Ruiz told Mr. Rodriguez he was under arrest and grabbed his wrist, Mr. Rodriguez panicked and his only thought was to get away. He yelled that he was not going to go to jail and swung the arm Officer Ruiz had grabbed, slamming him into the wall. A scuffle ensued, with the manager, the assistant manager, and another man trying to help Officer Ruiz subdue Mr. Rodriguez. The five men fell to the floor; Mr. Rodriguez was face down, and, with the manager and the other man holding Mr. Roeriguez down, Officer Ruiz straddled him as he was trained to do to gain the maximum advantage when trying to handcuff an unruly individual. Officer Ruiz was sitting on Mr. Rodriguez's back, facing his feet, and was just about to get the handcuffs around his wrists when Mr. Rodriguez managed to stand up, throwing off Officer Ruiz and the other men; he stopped and looked around, then proceeded to run out of the theater complex and down the street. He was apprehended several blocks away. Officer Ruiz suffered bruises as a result of being slammed against the wall by Mr. Rodriguez, 2/ but there apparently was no damage done to theater property as a result of the incident. On October 26, 1995, Mr. Rodriguez filed with the Department the application for a Class "D" security officer license which is the subject of this proceeding. In his application for licensure, Mr. Rodgriguez disclosed that adjudication had been withheld in two criminal cases, case numbered F94-23888 and case numbered F94-38895, arising in Dade County, Florida, and that he was sentenced to probation in each case. The charges in case numbered F94-23888, arising out of the incident which occurred on July 15, 1994, were felonies. The terms of probation for both cases were concurrent and expired on May 31, 1996. 3/ Mr. Rodriguez is not, therefore, currently on probation on a felony charge. Mr. Rodriguez gave his probation officer no problems during his term of probation, and one of the special conditions of his probation was that he participate in an anger control program. He expressed remorse and acknowledged that he was wrong to behave as he did at the theater complex; and he testified that he would behave differently if he ever found himself in a similar situation. On July 15, 1994, Mr. Rodriguez was one week away from his nineteenth birthday; he is now 21 years of age, married, and the father of a young son. Prior to this incident, Mr. Rodgriguez had never been arrested. The Department has presented sufficient credible evidence to establish that Mr. Rodriguez committed an act of violence on Officer Ruiz which was not undertaken in the lawful protection of himself or others. However, the evidence is also sufficient to establish that, while Mr. Rodriguez showed very poor judgment in provoking the confrontation at the theater complex and in resisting arrest, he has matured and rehabilitated himself. Therefore, in light of the facts found herein, with consideration given to all of the evidence presented and to the demeanor of the witnesses, Mr. Rodriguez has carried his burden of persuasion and demonstrated his entitlement to a Class "D" security officer license by a preponderance of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State enter a final order granting the application of Alejandro Rodriguez for a Class "D" security officer license and placing Mr. Rodriguez on probation for a period of two (2) years under such reasonable terms and conditions as may be imposed by the Department. DONE AND ENTERED this 11th day of Deecember, 1996, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1996.
Findings Of Fact At all times pertinent to the allegations herein, Respondent, Jacob Francis Miller, Jr., t/a Jake's Place, held 2-COP License No. 26-00705 for the consumption on the premises and package sales, located at 315 South McDuff Avenue, Jacksonville, Florida, of beer and wine. On January 27, 1983, John T. Lachman, an investigator with Petitioner, Division of Alcoholic Beverages and Tobacco, acting on a complaint of prostitution, lascivious conduct, and soliciting for drinks at Respondent's place of business, entered the premises in the evening, purchased a beer, and sat down at one of the tables. On this occasion, he was alone. Shortly thereafter, he was approached by a white female employee of the Respondent, Monica L. Todd, who was wearing a bikini bottom-and-top dancing outfit. She asked Lachman if she could dance for him and, when he agreed, she did so through four songs. Each dance lasted the length of one song. During each of the dances, which she accomplished while standing between his legs while he was seated on the chair, she would alternate between facing him and turning her back to him. When her back was toward him, she would rub her buttocks against his groin. After the four dances, he paid her her fee of $10. Lachman came back to this bar on February 17, 1983. This time, he was in the company of Beverage Agent Wilder and Deputy Sheriff Bennett. The three men purchased beers and went to sit at a table. Shortly, they were approached by Maudine Smith, a white female who was wearing a bikini bottom-and-top dancing costume. She offered to dance for them, and Lachman agreed for her to do two dances, for which she charged him $5. Again, she danced between Lachman's legs while he was seated; and while her back was toward him, she rubbed her buttocks in his groin area. When she faced him, she removed her top and rubbed her bare breasts in his face. Monica Todd also danced for Lachman on February 17, 1983. During her dance, which was accomplished between his legs while he sat on the chair, she rubbed her buttocks in his groin. There was no evidence to show that she removed her top and rubbed her breasts in his face. However, for her dance, she was paid $3. A third dancer entertained Mr. Lachman on February 17, 1983. Linda Jean Ford came over to him, sat on his lap, and asked him if she could do a $5 dance for him. When he asked her what that was, she replied she would have to show him. He paid her the $5, whereupon she took off her bikini top and danced for him, standing between his legs and alternately rubbing her breasts in his face and her buttocks against his groin. That same evening, Lachman also saw Ford and Smith dance for Mr. Bennett, who was sitting three to four seats (approximately 10 feet) away from him. Lachman observed Ford rub her naked breasts in Bennett's face and her buttocks against his groin while she was dancing for him. He also saw Smith rub her buttocks in Bennett's groin area during her dance. The lighting in the bar on this occasion was good enough for Lachman to see the farthest reaches of the establishment. There were six or seven patrons in there while all this was going one--some at the bar and some at the tables attended by a bartender who was identified as Santiago Santiago. It was obvious that the bartender could see what was going on, but neither he nor anyone else in the place made any effort to stop this dancing. Respondent was not in the bar while Lachman was there on either January 27 or February 17, 1983. Investigator Wilder, as was stated above was in Respondent's establishment with Lachman on February 17, 1983, and was treated to similar action by Ms. Smith, who did three dances for him. The first one Lachman paid for; and during her dance, she rubbed her naked breasts in his face. During the second and third dances that evening, for which Wilder himself paid her $5, she alternated rubbing her naked breasts in his face with rubbing her buttocks in his groin area. As a special added attraction during the third dance, she also put her foot up on the edge of his chair between his legs and rubbed the top of her foot against his groin. After the third dance, Smith went away and came back about five minutes later, again asking if she could dance for Wilder. When he declined this offer, she said, "Well at least you can buy me a drink." Wilder agreed to this and gave her $2. She immediately took it, went over to the bar with it, and then took her favors off to another customer. Respondent does not deny the occurrences alleged. He contends, however, he was not aware of it at the time or of the likelihood it would take place. He was not present in the bar on either occasion and generally works from noon to 7:00 p.m., coming in again at 2:00 a.m. to close up. Respondent opened the bar upon his separation from the Navy in 1982. It is a small neighborhood establishment that employs only one bartender. When he started his business and was approached by the girls who wanted to dance in his bar, he told them he was going to run a clean place. However, though he did no background investigation of many of the girls he hired, he was familiar enough with that type of person and their proclivities to have them sign a statement of house policies that included prohibitions against drugs, prostitution, soliciting drinks, touching of customers, and husbands or boyfriends in the bar during working hours. In light of that, it is hard to conclude he did not know the risks involved in allowing that type of person to work in the bar, especially considering his Navy service. Respondent maintains a personal friendship with Deputy Sheriff Bennett, who comes into the bar periodically. Respondent contends he has requested that Bennett arrest any of the girls working in the bar who are seen doing the kind of activity complained of here. Respondent also contends he is not familiar with the practices of Petitioner, and the former district supervisor's approach to him regarding these violations was foreign to him. He relates that Capt. Caplano suggested Miller "make an offer to keep [the] bar open." As a result, he signed a stipulation which called for a letter of warning and immediately terminated the dancers. When he did that, his business dropped immediately and he put the place up for sale. To facilitate the sale, his business broker advised him to start it again so that prospective buyers could see customers in the place. As soon as he did that, his proposed settlement was disapproved and a hearing was set up.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED THAT: Respondent pay an administrative fine of $500. RECOMMENDED this 9th day of May 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 9th day of May 1984. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Jacob F. Miller, Jr. 315 South McDuff Avenue Jacksonville, Florida 32205 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether 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
Findings Of Fact On February 21, 1975, H. R. Hall was working as an undercover detective for the Jacksonville Vice Squad. During the evening of that date Detective Hall entered the Silver Dollar Bar and Package Store, sat in a booth and ordered a beer. Sarah Lynn Swain, LuAnn Marie Docker and Lee Ann Remm, on the evening of February 21, 1975, were dressed as topless dancers and performed as topless dancers in the Silver Dollar Bar and Package Store. The three foregoing persons were agents, servants or employees of the Respondent. While seated in a booth Detective Hall observed Sarah Lynn Swain dancing topless between the legs of a male customer, who was fondling her buttocks while she placed her breast in the customer's mouth. Also while seated in the booth, Detective Hall observed LuAnn Marie Dockery dancing topless for a male customer and allowing the customer to fondle her buttocks. While in the Silver Dollar Bar and Package Store on February 21, 1975, Lee Ann Remm performed a topless dance for Detective Hall and while so dancing straddled his leg and undulated back and forth. Further, she attempted to place her breast in Detective Hall's mouth. Detective Hall paid her $2.00 to dance for him, but did not discuss with her, nor request the privilege of touching her. The Respondent is the holder of Beverage License No. 26-1334,4-COP and the licensed premises are the Silver Dollar Bar and Package Store.
The Issue Whether Petitioner has been the subject of an unlawful employment practice.
Findings Of Fact On May 18, 1992, a Notice of Hearing was issued setting the date, time, and place for the formal administrative hearing. The Notice of Hearing was sent by United States mail to the Petitioner and his counsel at the addresses listed in the Petition for Relief and accompanying information. Petitoner's attorney appeared at the hearing. However, even though Petitioner received adequate notice of the hearing in this matter, the Petitioner did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Respondent was present at the hearing. The Petitioner did not request a continuance of the formal hearing or notify the undersigned or his attorney that he would not be able to appear at the formal hearing. Petitioner was allowed fifteen minutes to appear at the hearing. As a consequence of Petitoner's failure to appear, no evidence was presented to support Petitioner's case. Specifically, no evidence of discrimination based on handicap or race was forthcoming. Therefore, Petitioner's attorney was advised that the Petition for Relief would be dismissed and a Recommended Order entered recommending the Commission do likewise.
Recommendation Based upon 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 Petition for Relief. DONE and RECOMMENDED this 14th day of September, 1992, at Tallahassee, Florida. COPIES FURNISHED: Robert Allen, Esquire 322 West Cervantes Street P.O. Box 12322 Pensacola, Florida 32581 Joseph L. Hammons, Esquire 17 West Cervantes Street Pensacola, Florida 32501 Margaret A. Jones Agency Clerk Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570 DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1992.
Findings Of Fact The Hearing Officer finds the following facts: Respondent is the holder of Beverage License No. 26-957,2-COP and the licensed premises encompass the bar known as "The Harem". Sergeant Thomas R. Genest, a Jacksonville Police Officer, went in The Harem on November 1, 1974. Upon entering he saw Georgiann Smith and Annie Pearl Williams, both of whom worked as topless dancers in The Harem and were at that time dressed as topless dancers. At the time Sergeant Genest entered the bar Smith was dancing topless at the bar between the legs of a male patron simulating intercourse with the patron. Williams was similarly dancing topless between the legs of a male patron, simulating intercourse and allowing the patron to place his hands on her buttocks and thighs. Sergeant Genest had no independent recollection of Virginia Lou Roberts or any acts in which she might have been engaged on November 1, 1974, in The Harem. On March 6, 1975, Detective H. R. Hall of the Jacksonville Sheriff's Office Vice Squad, was working The Harem undercover. While in The Harem he saw Maria Jenkins, Essie Mae Parks and Gaynell Moore, who were dressed as topless dancers and working as topless dancers in the bar. Jenkins was dancing topless between the legs of a male patron and rubbing her body against him as she danced. Parks was dancing topless between the legs of a male patron, who had his hands on her buttocks as she rubbed her vagina against his mid-section. Moore was dancing topless between the legs of a male patron who had his hands on her buttocks as she rubbed her vagina against his mid-section. At all times pertinent to this proceeding Georgiann Smith, Annie Pearl Williams, Maria Jenkins, Essie May Parks and Gaynell Moore were agents, servants or employees of the licensee.
The Issue Whether Respondent committed the offenses alleged in the notice to show cause and, if so, what disciplinary action should be taken.
Findings Of Fact The bar At all times pertinent hereto, respondent, Melba Mosca, held alcoholic beverage license number 23-00737, series 2-COP, for the premises known as 71 Bar and Grill (the "premises"), located at 1220 Normandy Drive, Miami Beach, Dade County, Florida. The investigation On January 28, 1994, Officer Luis King of the Miami Beach Police Department, operating undercover, entered the licensed premises as part of an investigation of illegal drug activity. The premises is a small bar, containing one main bar, a pool table, a pinball machine and a jukebox. At the time he entered, Officer King observed between 15 and 20 patrons, a female bartender, and another individual behind the bar, later identified as "Dave." At the time, Dave appeared to Officer King to be the manager or in charge of the premises since he had the keys to the register, full access to the bar and the remainder of the premises, and actively controlled the bartender and patrons. During subsequent visits, Officer King discovered that Dave was the son of the owner, respondent Melba Mosca, and his activities in the bar, from bartending, scheduling the bartenders, and ordering bar supplies and food, confirmed his employment and management status in the bar. 1/ That evening, Officer King observed one Phillipi Blanco (Flip), a known narcotics dealer, on the premises, and the pattern of his activities suggested to Officer King that Flip might be dealing narcotics. Accordingly, Officer King resolved to return to the premises on another occasion. On February 11, 1994, Officer King returned to the premises at or about 9:30 p.m., and noticed Dave, the only employee on the premises, tending the bar. Dave appeared very agitated that evening, consistent with being under the influence of some controlled substance, and exhibited some strange behavior, such as exposing his genitalia while working behind the bar. On one occasion that night, Dave locked himself in the men's restroom with unknown patrons for approximately one-half hour, leaving the bar unattended. That same evening, Officer King met with Eugene Scott, who he had met the previous night, in the men's restroom, and Scott offered to sell Officer King one plastic baggie of cocaine for $30. Officer King accepted, and paid Scott $30 in exchange for the cocaine. 2/ On February 12, 1994, Officer King returned to the licensed premises at or about 7:30 p.m. Officer King did not recall if Dave was on the premises that evening, but about 8:40 p.m. he approached Eugene Scott by the back door and asked Scott if he could purchase some more cocaine. Scott stated that he did not have any cocaine but that he did have some marijuana. In exchange for $10, Officer King purchased a baggie of marijuana from Scott. As noted, this transaction occurred near the back door, and was not observable from the bar. During the evening of February 19, 1994, Officer King returned to the licensed premises to continue his investigation. While at the premises, Officer King played pool with a patron known as Manuel Fernandez (Manny), who he knew from previous visits and during the course of that game asked Manny if he could purchase some cocaine. Manny refused. Later, Officer King observed Flip and an unknown patron enter the restroom. Officer King and Manny entered the restroom and Officer King asked Flip if he could buy some cocaine. Flip refused, because he "did not know " Officer King "well enough." Immediately after Flip left the restroom, Manny asked Officer King what he wanted and Officer King replied that he wanted to purchase $20 worth of cocaine. Officer King handed Manny $20 and a few minutes later Manny joined Officer King at the pool table and handed him a plastic baggie, secreted inside a matchbook, containing cocaine. Dave was in the bar at the time, but the proof fails to demonstrate that he observed or had the opportunity to observe any of these discussions or transactions. On March 1, 1994, at or about 7:45 p.m., Officer King returned to the licensed premises to continue his investigation, and during the course of that visit engaged Dave in a game of pool. While playing pool, Officer King was approached by a patron known as "Gennie," who Officer King had observed on the premises previously. Gennie asked Officer King if he needed anything and Officer King replied that he wished to purchase $20 worth of cocaine. Officer King gave Gennie $20 and Gennie approached Dave and asked if he had any cocaine. Dave replied that it would be a little while, and shortly thereafter he left the premises. A few minutes later Dave returned with an unknown male, entered the men's restroom, and locked the door. A few minutes later, Dave exited the restroom, and he and Gennie engaged in a hand-to-hand transaction. Gennie then went to the lady's restroom, and on her return handed Officer King a plastic baggie of cocaine and explained she had taken a "hit" before delivering it to him. Later that evening, Officer King asked Gennie if she could get him another $20 worth of cocaine. Gennie replied that would be "no problem," and approached Dave and asked him for another $20 worth of cocaine. Shortly thereafter, Dave and the unknown male again entered the men's restroom and locked the door. When he exited a few moments later, Dave went directly to Gennie and they again engaged in a hand-to-hand transaction. Gennie then went to the lady's restroom, and when she emerged a few moments later handed Officer King a small plastic baggie containing cocaine. Gennie again advised Officer King that she had taken a "hit" prior to delivery, as "her payment". On March 4, 1994, Officer King returned to the licensed premises to continue his investigation. Upon entering the premises Officer King went directly to the restroom and was followed by Scott. Scott asked Officer King if he "needed anything." Officer King told Scott he wished to purchase some cocaine, and later that he wished to purchase some marijuana and crack cocaine. Scott advised Officer King that it would be a while before he could get the cocaine, but that he could get the marijuana and crack cocaine immediately for $10 each. Officer King gave Scott $20, and Scott left the premises. A few minutes later, Scott returned to the premises and handed Officer King a plastic baggie containing marijuana and a rock of crack cocaine. Officer King then left the premises, but returned about 30 minutes later. While Officer King was playing pool with Dave, Scott returned to the premises, approached Officer King, and handed Officer King a plastic baggie containing cocaine. This transaction occurred openly, with no attempt by Scott to conceal the transaction from Dave. The owner's explanation Respondent, Melba Mosca, is 70 years of age, and has owned the 71 Bar and Grill since April 1993. According to respondent, she has been very alert to prevent drugs from being present on the premises, has signs posted in the bar prohibiting drugs, and has instructed her bartenders not to allow drugs and to phone the police if they see any drugs. Respondent further averred that in October 1993 she was hospitalized for an operation, and her ability to supervise the premises since that time was impaired. Notwithstanding, she was on the premises two to three times a day, and at shift change. According to respondent, her son Dave "watched" the premises for her when she was ill, but was not an employee. The testimony of Helia Mercado, respondent's nighttime bartender, was consistent with that of respondent. As heretofore noted in endnote 1, the testimony of respondent and Ms. Mercado that Dave was not an employee or agent of the owner was rejected as not persuasive or credible. Indeed, respondent's own testimony that Dave "watched" the premises for her, and Officer King's observation of his activities, compel the conclusion that Dave was an agent or employee of the owner. The testimony of respondent and Ms. Mercado that they had never observed any narcotics activity on the premises, as well as the efforts that were taken to discourage it, while of questionable credibility, stands unrefuted. Indeed, there is no proof of record that respondent was present on the premises when any of the transactions occurred that are the subject matter of the notice to show cause, and no proof that she or any of her agents or employees, except for Dave, were ever in a position to observe, much less observed, those or any other illicit activities on the premises. Under such circumstances, and given the limited number of transactions, the limited time of day at which they occurred, and the surreptitious nature of the majority of the transactions at issue, it cannot be concluded that respondent, based on the competent proof of record, fostered, condoned, or negligently overlooked such illegal activity.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the notice to show cause. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of April 1994. WILLIAM J. KENDRICK 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 15th day of April 1994.
