Findings Of Fact At all times pertinent to the allegations contained herein, Respondent P R of Brevard County, Inc., doing business as Shark Lounge, was the holder of Florida Alcoholic Beverage License Series 4-COP No. 15-00177 for the Shark Lounge, located at 411 North Orange Avenue, Cocoa Beach, Florida. On March 15, 1984, Terry A. Altman, a special agent for the U.S. Treasury Bureau of Alcohol, Tobacco and Firearms (BATF), in an undercover capacity and in the company of Investigator Gloria Smith of the Division of Alcoholic Beverages and Tobacco (DABT), also in an undercover capacity, entered the Shark Lounge at approximately 2:00 a.m. They had been there before on March 12, 1984, when an employee of the Respondent, the bouncer Harry Haynes, had offered to sell marijuana to Smith. On this March 15th visit, they spoke with an employee by the name of Sherry, and Smith asked if Haynes was there. When Haynes showed up, Smith asked him if he had been able to obtain any of the marijuana he had mentioned previously, whereupon Haynes told her that cocaine was easier to get than marijuana. However, Haynes made some telephone calls and shortly thereafter requested that Altman come outside with him. Altman complied, at which time Haynes requested $30. Altman paid the $30 to Haynes and then went back inside the bar. A little later, Haynes came in and motioned Altman and Smith to come outside, where Haynes handed Altman a plastic envelope containing a green leafy substance. Upon subsequent laboratory analysis, this substance was determined to be marijuana. On March 22, 1984, Altman and Smith went back to Respondent's lounge, where Smith saw Haynes behind the bar. At this time, she asked Haynes if she could get cocaine, and Haynes indicated that he had already ordered some for her. At approximately 2:00 a.m., Haynes came in and told Altman to go outside with him. Haynes quoted a price of $50 a half gram for the substance. Altman paid Haynes the $50 and went back inside, while Haynes went someplace else. A few minutes later, Haynes came back into the bar and requested that Altman again come outside. When he did so, Haynes handed him a small plastic bag of a white powder, suspected to be cocaine, which Altman took back into the lounge and gave to Smith. Sitting at the table and making no effort to conceal her actions, Smith held the package up to the light, tapped the bag to get the substance to one corner, and then put it into her purse. Haynes at that time guaranteed the quality of the substance and offered to get them more in the future if they so desired. This substance was subsequently analyzed and determined to be cocaine. Thereafter, on March 24, 1984, Smith, in the company of undercover agent Jenkins, entered the lounge at about 9:30 p.m. She introduced Jenkins to Haynes and asked Haynes if he could get some cocaine for them. Haynes replied that he could do so but that his source would not be in until later in the evening. At approximately 3:30 the following morning, while Haynes was busy attempting to break up a fight which had just started, an individual identified as Haynes' source entered the bar, and Haynes pointed out Smith to him. This source, identified as Ric, came to Smith and gave her what was subsequently identified as cocaine in a plastic bag, for which she paid him $50. By this time, the lights, which had previously been turned out in an attempt to help stop the fight, were back on, and there was no attempt on the part of Ric to conceal the transaction. Later in the evening, Haynes asked Smith if she had been taken care of. Again, on April 8, 1984, Altman entered the Shark Lounge at approximately midnight. He approached Haynes, who was acting as a bouncer at the entrance, and asked to buy a half gram of cocaine. Haynes asked Altman to step outside and agreed to procure the cocaine for Altman if he would front the money for it. Altman paid Haynes $60 in cash at the Shark Lounge, and, pursuant to the agreement between the parties, the cocaine was subsequently delivered later that afternoon at the Canaveral Pier. The transfer of money from Altman to Haynes took place near the door in front of an independent security guard hired by Respondent. Haynes explained the transfer as being a payoff of a bet. On April 17, 1984, at approximately 9:00 p.m., Smith and Altman again entered the Shark Lounge and engaged Haynes in conversation, at which time Smith indicated that she wanted some more cocaine. Haynes replied he would get it, and Altman gave him $40 to purchase a half gram of cocaine. It was understood between them that Smith and Altman would be back the following evening to pick up the cocaine. When they did come back at approximately 11:45 p.m. on April 18, Haynes, who was out in the parking lot, motioned Altman to get into an Oldsmobile car, which Altman did. Haynes then removed the package of cocaine from the car's ashtray and attempted to give it to Altman, saying that it was good stuff. Altman, however, indicated that Smith had paid for it and that Haynes should give it directly to her. The two men then got out of the car and approached Smith, who was standing near the outside of the door to the lounge. Haynes attempted to give Smith the cocaine at that time, but she would not accept it and instead went into the lounge to use the restroom. As Haynes and Altman followed Smith into the lounge, Haynes pressed the cocaine onto Altman, indicating that he wanted to get rid of it. When Smith came back from the restroom a few moments later, Haynes told her he had already given the cocaine to Altman, who took it out of his pocket and put it in Smith's lap. She examined the cocaine and put it in her purse in full view of the other patrons of the bar. This substance, delivered by Haynes to Aliman and in turn to Smith, was subsequently identified as cocaine. Neither agent went back to the bar until April 26, 1984, at approximately 1:30 a.m., when Altman and Smith, in the company of Special Agent Eslinger of the U.S. Drug Enforcement Administration (DEA), entered the bar. They contacted Haynes, who was working as a bartender at the time, and Smith asked him to get a half gram of cocaine for her. Haynes agreed to do this and told her to check with him the next day to see if he had procured it. At the time of her request, Smith gave Haynes $50 for the cocaine. No further contact was had until late in the evening of April 30, 1984, when Altman, Smith, and an unidentified confidential informant entered the lounge. Smith asked Haynes at that time if he had obtained the cocaine she had paid for on April 26, and Haynes said that he had. This conversation took place near the door, where Haynes was working as a bouncer. Haynes took a plastic envelope containing a white powder from his right front pocket and gave it to Smith, who brought it back to the table and showed it to Altman. Later, pursuant to Smith's invitation, Haynes came to their table and said that over the weekend he had obtained some sensinilla, some speed, and another substance. Smith said she would like to have some speed, and Haynes said he could get 30 capsules of it for $15, which she gave to him. At this point, Haynes showed Smith a package of a black substance which he identified as hashish and offered to sell to her for $5. Smith did not buy any, however, and she, Altman, and the informant departed the lounge after telling Haynes they would be back for the speed the next night. The white powdery substance that Smith obtained from Haynes that night was subsequently tested and found to be cocaine. When Smith went back to the lounge on May 4, 1984, at 11:00 p.m., this time with Eslinger alone, she contacted Haynes, who was working as the bouncer. Haynes told her he had the speed which she had paid for previously on April 30 and told them to go sit down. Shortly thereafter, Haynes motioned for Smith to come over to the door area, and, when she did so, he briefly stepped outside the lounge and then immediately came back. When he returned, Haynes put a package inside Smith's purse, which she saw and which he stated was only 25 capsules instead of the 30 she had paid for. At this point, Smith asked Haynes if she could pay him $50 in advance for a half gram of cocaine, which Eslinger would pick up the following day at the Canaveral Pier. When Haynes agreed, Smith gave him the $50 while they were inside the bar. Thereafter, she and Eslinger left. The capsules which Smith received from Haynes that night in the lounge did not contain amphetamines or any other determinable controlled substance. When Altman and Smith next returned to the bar on June 3, 1984, they found Haynes standing by the entrance. About a half hour after they went in, Smith asked Haynes if he had any cocaine and, when he replied in the affirmative, gave him $50 in advance for a half gram of cocaine. The arrangements made at that time were that the cocaine would be picked up on June Somewhat later, when Altman and Smith were leaving, Haynes told Smith not to leave yet, that his source was getting the cocaine out of his car. Altman and Smith waited, and a few minutes later Haynes came up to Smith at the bar and dropped into her purse a small plastic bag which contained a white powdery substance subsequently identified as cocaine. When Haynes dropped the bag into her purse, Smith took it out and examined it in plain view at the bar, which was well lighted, before putting it back into her right-hand pocket. Shortly thereafter, Altman and Smith left. The packages containing cocaine, which Smith held up to the light to examine, were approximately an inch and a half by an inch and a half in size. Although other employees were in the immediate area at the time that she held the packages up, and Altman does not know hew they could have avoided seeing what Smith was doing, Altman cannot say for sure that the employees did see it, nor can Smith. No other employees of the Respondent were involved in any of the drug deals except for Haynes. No other employees were in the immediate area when the sales were made. Neither Smith, Altman, nor Eslinger engaged in any discussion of drugs with any other employee of the bar on the numerous times they were in there. Smith contends that she first went into the bar on March 12, 1984, with Altman to pick up some drugs offered at another bar. She started talking to a male at her right and asked him if he knew where she could get some grass. This individual said yes and went to make a phone call. Later, he identified himself as Harry Haynes and said that he worked there as a bouncer but was not on duty on that particular night. The drugs were not delivered that night, either. On March 14, at 2:00 a.m., Altman and Smith again went into the lounge. Smith approached Sherry, the bartender, and asked for Haynes, who was not there. Smith told Sherry that Haynes was to get her some grass, and, in Smith's opinion, Sherry did not react to this disclosure at all. Sherry, on the other hand, denies any conversation with Smith about drugs. She indicated that Smith came to her frequently and asked for Haynes but never mentioned drugs in any capacity. Had Smith done so, Sherry states, she would have asked her to leave. This last comment stands to defeat Sherry's credibility, however. It is unlikely that the comment was made. It is also unlikely that an experienced bartender, as Sherry is, would react by asking a repeat patron to leave for mentioning that Haynes was to get marijuana. Sherry is the only one in the bar, except for Haynes, to whom Smith mentioned drugs, although she had a conversation about drugs with Haynes in front of Ric, who is apparently also a bouncer. When Smith asked about that, Haynes said that it was okay. There is a divergence of opinion regarding the reputation of the Shark Lounge as a source of drugs. Randy Arles, a Melbourne Beach police officer on loan to the Cocoa Beach Police Department Vice Squad since mid-March of 1984 and operating undercover, was contacted previously by a confidential informant who indicated there was cocaine traffic at the Shark Lounge. Based on that information, Arles and another officer went in to try to make a buy but were unsuccessful because, as it was explained to him, his identity as a police officer had been disclosed. Information reaching him from such street sources as confidential informants and prostitutes indicated that the Shark Lounge was known as a place to buy cocaine and that Haynes, the bouncer, was the seller. This latter information, however, is hearsay testimony and, with the exception of that relative to Haynes, cannot serve as the basis for a finding of fact. The identity of Haynes as the seller is corroborated by other independent admissible evidence, however. On the other hand, Officer Charles B. Autry, who has been with the Cocoa Beach Police Department for 14 years, has come into contact with the Shark Lounge and its owner on several occasions and has been inside the lounge four or five times. To his knowledge, it is a well-run establishment, and he has never in his 14 years been called there while on duty. The owner is very businesslike and very cooperative. He runs a tight ship and encourages the police to come inside both while on and off duty. In Officer Autry's opinion, considering today's morality, any place where crowds congregate has the potential for drugs, including the Shark Lounge, which he would not class as a nuisance. This opinion was also held by Major Gary Hummel, who has been with the Cocoa Beach Police Department for 14 years. He has been in the Shark Lounge on many occasions and knows the owner personally. He considers Mr. Autry to be an upright businessman who is not himself involved in drugs. The lounge in question here is one of only two lounges in Cocoa Beach that Hummel will patronize and take his wife. Both socially and professionally, he knows of no employees who sell drugs at the lounge, but the employees know he is a police officer, and this may have some bearing on their behavior in his presence. Hummel believes the owner is tough and knows that he will fire any employee for being drunk on duty. He also discharges employees for even the slightest infractions of rules. This bar is not a nuisance in his opinion but is a good clean place where many of the Cape workers go. These sentiments were reinforced by the proffered testimony of Officers William MacDonald and Al Otto of the Cocoa Beach Police Department, who both have been in the Shark Lounge frequently both socially and professionally. They have been encouraged to come in by the owner and find the lounge to be a clean, well-run, drug-free operation. Sharon LeVaugh (Sherry) has worked at the lounge as a bartender for six and a half years and runs the floor operation. Her immediate supervisor is the owner, Mr. Autry, who, to her knowledge, has a strict policy against drugs. Anyone using them, whether it be an employee or a patron, is immediately put out of the place. There is a low turnover of employees at the Shark Lounge, because it is a good place to work. During the six and a half years she has worked there, Sherry has never seen drugs used at the bar. She had no idea that Harry Haynes was dealing in drugs and doesn't think anyone else did. The Shark Lounge is dark inside like a normal lounge. The crowd which patronizes it is made up of regulars, both young and old, with repeat patronage common. A lot of business comes from Space Center employees, and police are encouraged to come in frequently. Friday and Saturday nights are quite busy, with 200 to 300 people in attendance. The bar offers live music seven nights a week, and the music is a noisy rock and roll band. Chad J. Milkint, the manager of the Shark Lounge, has worked there for a little over a year. Before that, he worked at another bar in the area for three years and has been in the lounge business both in Florida and outside the state for more than 11 years. When Milkint was hired, the owner was very clear about the "no drug policy," and he has followed it closely. He has, on occasion, thrown people out for being intoxicated either on drugs or alcohol. There is, he claims, a practical reason for this. If a patron is intoxicated, he is not buying drinks, and they are in business to sell drinks. Milkint did not know Haynes was using drugs or selling them. If he had, he would have fired him immediately. It was not at all unusual for Haynes to go outside as part of his job. In fact, Haynes' duties included a patrol of the outside area around the bar three or four times a night. Milkint admits he did no background check on Haynes except to check with his former employer, who gave Haynes a favorable recommendation. Haynes was a part-time employee who worked two or three days a week as a backup to the main barmen in addition to his duties as a bouncer. In a normal week, Haynes would work approximately 20 hours and had been employed sporadically by the bar for only five or six months. During the period of employment at the lounge, Haynes also worked at the Canaveral Pier. When Milkint checked with the beverage manager there, he was told that Haynes' performance was satisfactory. Milkint is frequently in the bar and observes what goes on. He denies ever seeing anyone check baggies by tapping or holding them up to the light, as described by Altman and Smith. He does not believe his employees saw that, either, because he feels that if they had seen it they would have reported it. The owner also supervises on a day-to-day basis, and in Milkint's opinion the operation is a good, ethical, well-run establishment. The employees are good, the entertainment is good, and the drinks are good and sold at fair prices. Milkint does not know how he could have prevented the sales by Haynes that took place there. Gary C. Autry, sole stock owner of the Shark Lounge, has owned the establishment for eight years. He used to work more in the bar than he does now, but a recent blood condition has developed that has made him curtail his activities. When Autry came down with this condition, he hired Milkint as a manager and an individual by the name of Mike Harris as an assistant. He has known both of them for years and knew both had previous lounge experience. When he hired them, Autry told them immediately that his policy was "no drugs whatsoever." Although he cannot spend as much time in the establishment as he used to, Autry is nonetheless there seven days a week and closely supervises his operation. His bouncers are trained to handle drugs and work with the police. Had Autry known Haynes was selling or using drugs, Haynes would have been dismissed immediately. When he hires employees, he asks them their habits. He believes that because of his policies his turnover of employees is as low as it is.
The Issue Whether Petitioner should take disciplinary action against respondent's license for the reasons alleged in the notice to show cause dated January 23, 1989, as amended effective November 29, 1989?
Findings Of Fact Respondent holds a 2 COP license, No. 74-01941, for Manatee's, a bar in Orange City, authorizing the sale of beer and wine, but not "spirituous liquors," for consumption on the premises. At about one o'clock on the afternoon of December 23, 1988, in response to a complaint, Joseph Ogonowski, a law enforcement officer in petitioner's employ for some 29 years, entered Manatee's, in plain clothes. Super Bowl Pool Conducting himself "like a patron, he struck up a conversation with Barbara, who asked him if he wanted to split the cost of a $10.00 chance in a football pool. When he answered affirmatively, a man behind the bar named Bob produced a cardboard chart. Petitioner's Exhibit No.2. On the obverse, under the legend "SUPER BOWL XXIII SUN JAN 22, 1989," 100 squares were numbered in sequence. The reverse contained two columns of lines, also numbered from one to 100. Names appeared in some squares and on some lines. After Barbara and Mr. Ogonowski decided on the number 11, their names were entered both in the square numbered 11 and on line 11, on the back of the chart where Mr. Ogonowski, as instructed, also wrote down his telephone number. John "Pete" Peterson offered to share another chance with Mr. Ogonowski (if he contributed five dollars to its purchase), and in this way the latter acquired a half-interest in a second chance. After Pete picked 6 and Mr. Ogonowski picked 7, their names went into square and on line 76. In the course of assuring him that he need not be present at Manatee's for the Super Bowl buffet in order to win the pool, Denise, a bar maid, pointed out a woman (whose name nobody who testified could recall) who had entered the establishment after he had. Mr. Ogonowski saw her unremembered name deleted from an erasable chart (after, he was told, she received winnings from an earlier football pool.) More than one person informed Mr. Ogonowski that the free Super Bowl buffet at Manatee's had been a good one in past years. The plan was to add the scores of both teams playing in the Super Bowl, as soon as the game finished. If the total corresponded to a square with somebody's name(s) in it, the winner(s), so determined, were to receive all bets pooled. On January 4, 1989, Mr. Ogonowski returned with a fellow beverage officer, Ron Sullivan. Announcing that they were beverage agents, they seized the cardboard chart and an envelope marked "Super Bowl Pool," despite Mr. Di Nofrio's efforts to prevent their access to the drawer containing the envelope. The envelope had $90.00 inside, although names filled 24 squares on the chart, found later behind a cash register. On January 10, 1989, a handwritten note reached petitioner's Daytona Beach offices. Mailed after the search and seizure at Manatee's, the note reads: Joe Barbara ask me to send this buffet ticket to you. Don Petitioner's Exhibit No. 6. Enclosed was a business card ("good for 1 FREE drink") on which somebody had written by hand: SUN JAN 22ND 076 SUPER BOWL BUFFET PARTY JOE OGONOWSKI Id. At hearing, Mr. Di Nofrio contended that Mr. Ogonowski's ten dollars had paid for a buffet ticket, and had nothing to do with any football pool. Mr. Di Nofrio claimed that each square on the chart represented a buffet ticket. But this did not explain why some patrons had their names in six different squares, or why some squares contained two names. In any event, he testified that a person who paid $10.00 would be eligible, even without attending the buffet, to win one of two $50.00 cash prizes or a $25.00 bar tab in a drawing. Distilled Spirits In searching Manatee's on January 4, 1989, the beverage officers found an array of Lady Velvet liqueurs, including Lady Velvet Apricot Brandy, Lady Velvet Apricot Schnapps, Lady Velvet Banana Schnapps, Lady Velvet Blackberry Brandy, Lady Velvet Coffee and Brandy, and Lady Velvet Dark Creme de Menthe. Di Nofrio told the officers that he had acquired these liqueurs, at Walgreen's, a retail store; and indicated that he kept them at the bar for resale. Also present on the premises was an unopened bottle of McGuire's Cream Liqueur. Mr. Di Nofrio claimed this had been a present for a bar maid, but he was not sure which. Unlike the labels on the Lady Velvet products, which did not identify them as distilled spirits, the label on this bottle stated, "Made with 100% imported blended scotch whiskey." Walgreen liquor stores are licensed as "vendors" but not as "distributors" of alcoholic beverages. The distributor who sells Lady Velvet liqueurs to Walgreen stores sells this brand to no other vendor. Although Lady Velvet liqueurs contain less alcohol by volume than certain non- distilled beverages legally sold under licenses like respondent's, these liqueurs are distilled or "spirituous" liquor.
Recommendation It is, accordingly, RECOMMENDED: That petitioner suspend respondent's license for thirty (30) days. DONE and ENTERED this 7th day of March, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 7th day of February, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1 through 9, 12 and 13 have been adopted, in substance, insofar as material. With respect to petitioner's proposed findings of fact Nos. 10 and 14, the witness so testified. With respect to petitioner's proposed finding of fact NO. 11, only hearsay tended to prove her a winner. Respondent's proposed findings of fact Nos. 1, 2, 3, 7, 8, 9 13 and 14 have been adopted, in substance, insofar as material. With respect to respondent's proposed findings of fact Nos. 4, 5, 6, 10, 11 and 12, the evidence showed that the money was paid for chances in a football pool, rather than for buffet tickets. Respondent's proposed findings of fact Nos. 15, 16, 18 and 20 have been rejected as unsupported by the weight of the evidence. With respect to respondent's proposed findings of fact Nos. 17 and 19, only respondent's testimony would support these findings, and his testimony proved incredible in many other matters. COPIES FURNISHED: Leonard Ivey, Director Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Joseph A. Sole, General Counsel Deparment of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 John B. Fretwell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Dondis Enterprises, Inc. 510 Cleo Lane Deltona, FL 32738 Lt. J. D. Powell, District Supervisor Division of Alcoholic Beverages and Tobacco 815 North Nova Road Daytona Beach, FL 32015
The Issue The issue is whether Respondent has committed a discriminatory act with respect to public accommodations in violation of Chapter 760, Florida Statutes, and if so, what remedy should be provided.
Findings Of Fact Respondent operates a fleet of cruise ships. The Triumph is one of the ships in its fleet. It sails from Miami, Florida. Among the cruises that Respondent offers on the Triumph is a seven-day cruise to the Western Caribbean, which stops in Grand Cayman, Cayman Islands, Ocho Rios, Jamaica, and Cozumel, Mexico. Ms. Raphael, a Black female, contracted to and took a seven-day Western Caribbean cruise on the Triumph from March 18- 25, 2006. It was Ms. Raphael's first cruise and she traveled by herself. The make up of the passengers and crew on the ship included all races: Asians, Caucasians, Indians, Hispanics, African Americans, etc. The Triumph left the Port of Miami on March 18th and was at sea in international waters until it returned to the Port of Miami on the 25th. On the 20th, the ship docked at Cozumel. On the 22nd, the ship was at Grand Cayman and on the 23rd it docked in Ocho Rios. The Triumph sailed under a foreign flag and is registered in Panama. When Ms. Raphael boarded the Triumph on March 18, 2006, her picture was taken with the rest of the passengers. Paris Dining Room: Upon boarding, Petitioner was given a card that assigned her to the Paris dining room, lower level, table 334, for 5:45 p.m. dining. During the first two days of the cruise, Petitioner did not go to her assigned table in the Paris dining room because she really didn't pay attention to where she was to go. On the third day of the cruise, Ms. Raphael received another dining room reservation card for the Triumph's Paris dining room, table 334 at 5:45 p.m. Petitioner's allegations in her petition relating to the incident in the Paris dining room were not substantiated by the evidence at hearing. Ms. Raphael presented inconsistent testimony and failed to prove any of the allegations. Pizza Incident: While in international waters, Petitioner went to the pizzeria on the Lido deck to get pizza because she was hungry. She stood in line with other passengers to get a slice of pizza. Ms. Raphael took the last piece of pizza. The slice was burnt. After Ms. Raphael got the last slice of pizza, the server left to go get another pizza pie. Ms. Raphael didn't wait for him to return but, instead just threw the burnt pizza away. She neither asked for a new slice of pizza nor addressed or complained about the burnt slice to anybody. Housekeeping Incident: Ms. Raphael could not get her television in her cabin to work properly. She complained to the purser's office two times to get it fixed. On March 20, 2006, staff reported to the purser's office that Petitioner was using the television incorrectly and it was fine. Petitioner reported to a Triumph employee that her room had not been cleaned for the first few days of the cruise. Housekeeping cleaned her room after she made her report. Petitioner talked to a staff member assigned to clean her room about his national origin and found out that the crew member was from India. So, she informed him that she was from Haiti. After the conversation, Ms. Raphael left her cabin. When she returned to her room it was clean and a towel in the shape of two little pigs and a sign that spelled out the word "Haiti" was left on her bed.2 Carnival's policy requires that stewards leave towel animals on all passengers' beds in their cabins nightly. The stateroom stewards are trained to make various towel animals for passenger cabins, including pigs. Carnival sells a book, Towel Creations with Freddy, which contains instructions for assembling animals. Over 800,000 copies of the book have been sold. Petitioner's Cruise Account Incident: Ms. Raphael went to the ship's casino to play Bingo. When she went to withdraw money to play, the employee she approached didn't provide her money because she did not have identification. So, Petitioner went back to her room to get her identification. After Petitioner returned to the casino, showed her identification, and requested $10.00, she was told there was no money in her account. This incident occurred on or about the fourth day of the cruise. Ms. Raphael witnessed passengers of other races in line getting money in the casino. After Petitioner was denied any withdrawal of money, she went to another Carnival Cruise Line cashier to withdraw money and was told that there was about 40 something dollars in her account. Petitioner did not go back to the casino to play bingo.3 Petitioner also got her account straight by having the cashier remove the service gratuity for meals off her account since she had not eaten in the dining room. At the end of the cruise, Carnival Cruise gave the Petitioner a check for $58.44. Although she complained at hearing that she made a $200.00 deposit and she was given credit for a $100.00 deposit, she accepted it without further complaint. Jewelry Store Incident: Petitioner went to the jewelry store on the cruise ship with fellow passenger Ms. Clayton and received what she considered was bad service. The retail jewelry store is operated by Starboard Cruise Services Limited (Starboard), an independent contractor of Carnival Cruise Line. The employees of the retail jewelry shop are hired, trained, supervised, and employed by Starboard. A male employee was assisting Petitioner and Ms. Clayton, answering their questions and showing them jewelry items, when three other people came up. The salesperson walked away from Petitioner to help the other customers before he finished assisting Ms. Raphael and Ms. Clayton. Petitioner addressed this treatment with another cashier, an employee of Starboard, who apologized to her and said that he would report the matter to the head office. Ms. Raphael never made any additional complaints about the salesperson's rudeness after informing the cashier. The jewelry store is only open while in international waters. Petitioner's visit to the jewelry store was made when the ship was at sea and in international waters. Cabin Search Incident: On March 24, 2006, Homeland Security Officer Mayer sent an e-mail to Triumph Chief Security Officer Paul requesting Ms. Raphael's "A-pass/on/off activity." After the request, Officer Paul provided Petitioner's A-pass activity to United States Customs and Boarder Protection (CBP), a part of the United States Department of Homeland Security. CBP requested an escort to search Petitioner's room when the Triumph docked. Respondent neither initiated the search, requested the search, nor participated in the search of Petitioner's cabin, other than to have a security officer escort CBP Officers Mayer and Maize to Ms. Raphael's cabin. Respondent has no knowledge as to why CBP chose Ms. Raphael's cabin to search. When the Triumph docked at the port in Miami on March 25, 2006, Homeland Security went to search Ms. Raphael's cabin. After they knocked on her cabin door, at 6:49 a.m. Petitioner took approximately three minutes to open the door. Emanuel Moise, a Carnival crew member, was found in the bathroom when CBP came to search Petitioner's room. Petitioner waited in the hall with a female security officer while CBP performed the search of her cabin with a K-9 detector dog.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered that dismisses Petitioner's Public Accommodations Complaint of Discrimination. DONE AND ENTERED this 22nd day of January, 2008, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2008.
Findings Of Fact Odell Hines and Dorothy Spray Hines (who are man and wife) operate the Rooster's Comb, a beauty salon in Gainesville, Florida. A building with exterior dimensions of 18 feet in width and 60 feet in length houses the shop, a single room in which there are several booths manned by respondents and nine or ten employees. Every employee does not work every day. Although, with the exception of a couple of "floaters," each operator is assigned a particular booth or station, no one operator works in the same place all of the time. Cosmetology licenses or certificates of registration issued to respondents and their employees are all posted on a bulletin board. The bulletin board, which weighs approximately one and one half pounds, leans against a wall, so that the licenses are plainly visible, and is situated within 20 feet of every operator who is working and about three feet from the manicurist.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint against respondents. DONE and ENTERED this 14th day of July, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Daniel J. Wiser, Esquire Post Office Box 1752 Tallahassee, Florida 32302 D. Spray Hines and Odell Hines d/b/a The Rooster's Comb, Inc. 2405 S. W. 13th Street Gainesville, Florida 32608
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.
Findings Of Fact Early on the morning of February 12, 1980, Detective Edward Hanek of the Miami Police Department arrived at 533 Southwest 12th Avenue, the address of respondent's bar, Rincon de los Recuerdos. On the sidewalk in an alcove in front of the bar lay the bloody corpse of Guillermo Tey. Detective Hanek tried both doorways into the bar from Southwest 12th Avenue but found both outer doors locked. At both doorways, he was able to reach through the iron bars of the outer doors, push open unlocked wooden doors, and see the interior of the bar. Detective Hanek "followed a blood trail leading from the body to the south door" (R. 24) on Southwest 12th Avenue. Another blood trail led away from the bar. A rear entrance to the bar also featured a locked iron outer gate and a wooden door behind it, unlocked. Nahir Gil arrived at the bar in a police car and opened the back door at Detective Hanek's request. Inside were glasses and bottles of beer "that appeared to be left in a hurry." (R. 26). Balls on a pool table and change strewn on the bar had the same Flying Dutchman quality. At the scene of the crime, Mr. Gil told Detective Hanek that he had closed the bar at one o'clock, or ten minutes of, that morning; that he sent about ten customers away when he closed; that he did not know of the deceased; and that he did not know the barmaid Anna's last name or where she lived. Later the same morning, at the Miami Police Station, Detective Hanek interviewed Mr. Gil further and Mr. Gil executed a sworn statement at 6:36 a.m., on February 12, 1980, in which he stated inter alia: that this girlfriend, Melba Bernal, and her sister from Pereira, Columbia, were in the United States without visas, as far as he knew; that he and his brother Manuel owned the bar; that he had spent the day of February 11, 1980, drinking in the bar; that he closed at one instead of three o'clock on the morning of the 12th, because he was drunk, and failed to gather the day's receipts from the cash register for the same reason; that he did not know Guillermo Tey; that he did not know Anna's last name or where she lived; and that he had not seen "anybody lying on the sidewalk with blood coming out." Petitioner's Exhibit No. 2, p. 6. Mr. Gil indicated that his girlfriend had once worked in the bar. He answered, "Yes, sir" to Detective Hanek's question, "What you told me you know, is all you know?" Later on in the day, Mr. Gil told Detective Hanek that he had heard two gunshots and seen a man lying on the sidewalk just before he closed the bar. Through his lawyer, Mr. Gil got Anna's last name, Vasquez, and address to Detective Hanek. The following day, Detective Hanek visited Ms. Vasquez's apartment, only to learn that she had recently moved. Nahir Gil admitted to Detective Hanek that Anna was an illegal alien and admitted to John Clayton, an agent of the United States Border Patrol, that the Bernal sisters had been smuggled into this country. Subsequently, one sister returned to Colombia and the other married Nahir Gil. The parties stipulated that respondent's license, No. 23-00932-2COP, was current at all relevant times; that a certificate of incumbency filed on or about July 7, 1978, reflected that Geoberto Gil owned half of respondent's stock and that Nahir Gil owned the other half; that Geoberto Gil transferred fifty shares, all of his interest in respondent, to Manuel Salvador Gil on April 10, 1979, and resigned as director on the date; and that, as recently as April 10, 1979, Nahir Gil acted as secretary of respondent corporation.
Recommendation Upon consideration of the foregoing, it is recommended that petitioner dismiss the Notice to Show Cause. DONE and ENTERED this 13th day of March, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II, 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 13th day of March 1981. COPIES FURNISHED: Dennis E. LaRosa, Esquire The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Thomas B. Duff, Esquire 1407 Biscayne Building 19 West Flagler Street Miami, Florida 33130
The Issue The issues for determination are: (1) whether Respondent through its agents, servants, or employees, while on its licensed premises, permitted patrons to unlawfully possess, sell, or deliver controlled substances in violation of Sections 561.29(1)(a) and 893.13(1)(a), Florida Statutes; (2) whether Respondent through its agents, servants, or employees, kept or maintained its licensed premises for the illegal keeping, selling, or delivery of controlled substances in violation of Section 893.13(7)(a)5., Florida Statutes; and (3) if yes, what action should be taken against Respondent's Alcoholic Beverage License No. 39-01181, Series 4-COP, issued by the State of Florida.
Findings Of Fact At all times relevant to this proceeding, Respondent was the holder of an Alcoholic Beverage License No. 39-01181, Series 4-COP, for the licensed premises doing business as Club 1509 and located at 1509 East 8th Avenue, Tampa, Hillsborough County, Florida. At all times relevant to this proceeding, Kenneth M. Sohl was the president, secretary and treasurer of Killian's Rock Cafe, Inc., d/b/a Club 1509, and the holder of the above- referenced alcoholic beverage license. In 1994, Kenneth M. Sohl, Dr. Frederick McClimans, D.O., and Ernest Haire, III, invested in a venture whereby an existing law office was converted into an upscale, rock-n-roll nightspot called Killian's Rock Cafe located at 1509 East 8th Avenue, Tampa, Florida. Mr. Kenneth Sohl was the managing partner because of his successful ownership and operation of another rock-n-roll club also named Killian's located in Tampa, but not in the Ybor City area. After almost two years of operation, Killian's Rock Cafe was having a difficult time competing with the ever increasing number of establishments being opened in Ybor City. In October 1995, Mr. Sohl and Dr. McClimans took on new partners, Paul Haber, owner of a medical equipment company; Linda Haber, Paul Haber's wife; and Dr. Lawrence Perich, M.D. When the new partners became involved, it was with the idea of creating a more upscale club that which would appeal to a larger client base. At about this time, the rock-n-roll format ended, and Club 1509 opened. After experimentation, Kenneth Sohl developed a musical format at Club 1509 which appealed to different types of clientele on different evenings. Wednesday nights were designated "International Night" and featured music from around the world. Every Thursday and Sunday night was called "Techno Night" and featured loud, fast music known as "Techno" or "House Mix." On Thursday evenings, a special music and light show produced by a company called MARZ was featured. The combination of "Techno" music and the special production by MARZ catered to a younger clientele and contributed to Thursdays being one of the more popular nights for the Club 1509. Friday evenings featured Salsa-type dance music and attracted a more Latin clientele who enjoyed that type of music. The Saturday evening format included varied music and was designed to attract an older, more upscale clientele. The licensed premises is a 9,600 square-foot night club with two levels. On the first level, there are two large bars, one on the east side of the club and the other one on the west side. Also, on the first level is a smaller bar on the southwest side of the club. Between the two larger bars on the first level is a large dance floor with an elevated stage area immediately north of it. There are men's and women's rooms on the first floor north of and adjacent to the larger bars. A VIP room and smaller bar are located on the second level of the licensed premises. The upstairs also has a balcony which overlooks the dance floor and other portions of the first floor. There is also a men's and women's room on the second floor. Prior to August 1, 1997, the Division received information from the Tampa Police Department concerning possible drug activity within the premises of Club 1509. Based on this information, the Division initiated an undercover investigation of Club 1509. Special Agents (Agents) Patricia Thompson and Deborah Caplinger were among those assigned to investigate Club 1509. Agents Thompson's and Caplinger's investigation spanned the period from August 2, 1997, through October 3, 1997, and ended when the Emergency Order of Suspension was served. During the course of the undercover investigation, Agents Thompson and Caplinger participated in several transactions in which they purchased controlled substances at the licensed premises. The controlled substances purchased by the agents during the investigation of the licensed premises were various designer drugs, often referred to generally as "ecstasy." Specifically, the controlled substances purchased by the agents included MDMA, Nexus, and MDEA. The chemical names for the aforementioned drugs are: 3,4, Methylenedioxymethamphetamine (MDMA); 4-Bromo-2,5-dimethoxyphenethylamine (Nexus); and 3,4- Methylenedioxy-N-ethylamphetamine (MDEA). These designer drugs have risen in popularity in recent years and are becoming increasingly popular in Florida. During the course of the investigation, the agents also purchased the controlled substance, amphetamine. On Saturday, August 2, 1997, and continuing into Sunday, August 3, 1997, Agents Caplinger and Thompson went to the licensed premises to begin the investigation. On that Saturday evening, at about 11:55 p.m., a patron known as Major Singh was standing at one of the three bars in the downstairs portion of the Club. While standing at the bar, Major Sigh asked Agents Caplinger and Thompson if they were having a good time. In response, Agent Caplinger told Major Singh that it would be better if she were "rolling." "Rolling" is a slang term that means feeling the effects of MDMA. Major Singh offered to obtain some MDMA for Agent Caplinger, and then left the bar area. Agent Caplinger then placed her purse on the counter, took cash out and openly counted it above bar level as if she were "paying for a drink." Major Singh returned, told Agent Caplinger that the price of the MDMA was $50.00. Major Singh then turned his back to the agents and put his right hand behind his back to receive $60.00 from Agent Caplinger. Major Singh left and returned a few minutes later. At that time, Major Singh placed two tablets into a napkin and then placed the napkin in Agent Caplinger's pants pocket. After putting the tablets in Agent Caplinger's pants pocket, Major Singh left again. Major Singh returned later and put Agent Caplinger's $10.00 change into her pocket. The substance purchased by Agent Caplinger on this occasion was MDMA. On the evening of Thursday, August 7, 1997, and going into Friday, August 8, 1997, Agents Thompson and Caplinger returned to the licensed premises in their undercover capacity. At about 12:20 a.m., on August 8, 1998, two patrons approached Agent Thompson and introduced themselves as Tara and Carlos. Tara told Agent Thompson that a patron on the dance floor was "rolling." Agent Thompson asked Tara is she were "rolling," to which Tara replied, "Not yet." Shortly thereafter, Agent Thompson observed Tara taking money from Carlos, and then approaching another patron, Mary Vestil (Vestil). After a brief conversation, Vestil walked away from Tara and spoke to an unknown patron. Vestil handed this unknown patron something and the unknown patron handed Vestil something in return. Vestil then returned to Tara, and Tara returned to where Carlos and Agent Thompson were standing. Agent Thompson asked Tara if she could purchase "one." Tara initially told Agent Thompson that "it" would cost $10.00, but later told Agent Thompson that the cost would be $25.00. After settling on the price, Tara and Agent Thompson went to Vestil who was on the dance floor. Agent Thompson took $25.00 and fanned it in front of Vestil. Vestil directed Agent Thompson to "be careful," after which Agent Thompson apologized and moved the money closer to her body. Vestil indicated that her previous comment regarding being careful was made with regard to the pill which she was giving Agent Thompson in exchange for the $25.00. The substance purchased by Agent Thompson on this occasion was MDMA. At about 12:30 a.m., on Friday, August 8, 1997, Agent Thompson approached Vestil on the dance floor again regarding the purchase of another tablet for her friend, Agent Caplinger. After noticing a patron, Smokie, observing them, Vestil asked the agents if Smokie was "cool." The agents asked Vestil why she was concerned that "Smokie" was a law enforcement officer. Vestil did not answer the question, but stated that she wanted to go to the restroom. Vestil then walked off the dance floor to an area adjacent thereto and gave Agent Caplinger a grayish brown tablet in exchange for $25.00. The substance purchased by Agent Caplinger on this occasion was MDMA. On Thursday evening August 14, 1997, Agents Caplinger and Thompson and other law enforcement officers returned to the licensed premises to continue the investigation. On this date, the agents observed several patrons who appeared to be under the influence of a controlled substance. One patron was carried out of the premises by two other patrons. After the patrons walked outside the licensed premises to the front entrance, the off-duty uniformed police officers, posted outside the licensed premises and hired by Respondent, asked if the patron needed any assistance. The offer for assistance was declined. On Saturday, August 16, 1997, Agents Caplinger and Thompson returned to the licensed premises to continue the investigation. The agents observed a patron, Sammy, giving other patrons what appeared to be small pill-sized objects. Based on her belief that the objects being distributed by Sammy were controlled substances, Agent Thompson then approached "Sammy" and asked if he had any "X," a slang term for MDMA shortened from the word "ecstasy." Sammy advised he did not. Later on the evening o August 16, 1997, the agents approached Major Singh, who told them that he could get MDMA for them. After discussing the price of the MDMA, Agent Caplinger handed Major Singh $25.00 and Agent Thompson handed him $30.00. Major Singh then left the agents. When Major Singh returned later that evening, he told the agents that he was unable to find his drug supplier and returned the agents' money. On Thursday evening, August 21, 1997, and continuing into Friday morning August 22, 1997, Agents Thompson and Caplinger and other law enforcement officers returned to the licensed premises in furtherance of the investigation. Several patrons on the licensed premises were engaged in what appeared to be drug activity. A female patron collected money from other patrons and approached another patron, John Robert Milam (Milam). The female patron gave Milam the money and Milam handed the female what appeared to be several pill-sized objects. The female then returned to her friends and handed them each a pill- sized object. This activity took place on or near the dance floor. There is no indication that the licensee, manager, or employee of the licensed premises saw this activity. Later on Thursday, August 21, 1997, at about 11:50 p.m., after they observed the transaction described in paragraph 15, Agents Thompson and Caplinger approached Milam on the dance floor. Agent Thompson asked Milam if he had any pills. Milam told Agent Thompson that he did have pills. After discussing the price of the pills, Agent Thompson handed Milam $50.00. In return Milam handed Agent Thompson two sand-speckled pills. Agent Thompson then gave one of the pills to Agent Caplinger. This entire transaction took place on the northwest corner of the dance floor. The substance purchased by Agent Thompson on this occasion was Nexus. On Friday, August 22, 1997, at about 1:25 a.m., a patron, Peter Harrison (Harrison), approached Agent Thompson and asked her to dance. Agent Thompson declined. Harrison then asked if Agent Thompson was looking for pills, and indicated that he could provide them. Harrison then went to another patron, Douglas McDaniel (McDaniel), and after a short conversation with McDaniel, Harrison returned to Agent Thompson and advised her that two pills would cost $55.00. Both Agents Thompson and Caplinger took money from their persons and counted it. Agent Thompson took money from Agent Caplinger and handed $55.00 to Harrison. Harrison then motioned to McDaniel, and directed Agent Thompson to McDaniel, who was leaning against the small bar located on the lower level of the licensed premises. When Agent Thompson approached him, McDaniel asked Agent Thompson if she and her friend were cops. After Thompson said no, McDaniel gave a bottle cap to Thompson which contained two small clear capsules with white powder. The capsules purchased on this occasion were Nexus. After Agent Thompson received the capsules purchased in the transaction described in paragraph 17, she openly handed one of these pills to Agent Caplinger while they both were at the bar. Even though a bartender was working behind the bar and another employee was working security in an area near the bar, there is no evidence that either of these employees observed Agent Thompson handing Agent Caplinger a pill. On August 22, 1997, the agents observed several patrons approach another patron identified as Glenn David Hall, Jr. (Hall), and give him money in exchange for small objects that he retrieved from his pocket. Later on Friday, August 22, 1997, at about 2:15 a.m., Agent Caplinger approached Hall by the caged area on the west side of the dance floor and asked him for some pills. Hall indicated that he did not know her and refused to sell any pills to Agent Caplinger. However, an unknown patron wearing a cap with the inscription "Quicksilver" (Quicksilver) who had received something from Hall earlier soon approached Agent Caplinger on the dance floor and asked if she wanted a pill. After negotiating the price, Agent Caplinger got $20.00 from Agent Thompson and gave Quicksilver $20.00 in exchange for one off- white pill. Quicksilver then gave the money to Hall. The substance purchased by Agent Caplinger on this occasion was Nexus. Shortly after the transaction described in the paragraph 20, Agent Thompson approached Quicksilver on the dance floor and asked for a pill. Quicksilver told her that the pill would cost $20.00. Agent Thompson then gave Quicksilver the $20.00. Hall then took something out of his pocket and handed it to Quicksilver who then handed an off-white tablet to Agent Thompson. The substance purchased by Agent Thompson on this occasion was Nexus. On Saturday, August 23, 1997, and continuing into Sunday, August 24, 1997, Agents Caplinger and Thompson returned to the licensed premises. On this date, Brian Morgan, an employee of Club 1509, approached Milam, and after a brief conversation, Morgan approached a group of patrons and introduced Milam to the group. Morgan eventually left the group, but Milam remained with the group. At about 12:10 a.m., on Sunday, August 24, 1997, Milam took something from his right front pants pocket. When Milam pulled his right hand from his pocket, his fist was closed and he appeared to transfer an object in his right hand to his cupped left hand. He then appeared to hand an object from his left hand to one of the patrons in the group. At about 12:20 a.m., on Sunday, August 24, 1997, Agent Thompson approached Milam on the dance floor and asked if he had “anything” with him. Milam told Agent Thompson that he did, and they walked off the dance floor to Agent Caplinger. Agent Thompson gave Milam $50.00 which Milam placed in his left pants pocket. Next Milam placed his right hand in his front right pants pocket. When Milam pulled his hand out of his right pants pocket, his fist was closed. Milan opened the closed fist and released two pills into Agent Thompson’s hand. This transaction occurred between the dance floor area and the main entrance. The substance purchased by Agent Thompson on this occasion was Nexus. On Sunday, August 24, 1998, at about 1:15 a.m., Agent Caplinger approached a patron, Greg, on the dance floor, near the men's restroom, and asked for Major Singh. Greg had been with Major Singh when the agents first met Singh on August 2, 1997. After a brief discussion about what drugs Greg could obtain and the price, Agent Caplinger agreed to purchase some "pure MDMA" from him. Greg then left the agents. While Greg was gone, Agent Caplinger counted out $60.00. When Greg returned, Agent Caplinger gave him the $60.00. Greg left Agent Caplinger again, and about fifteen minutes later, returned and gave Agent Caplinger two capsules. The substance purchased by Agent Caplinger on this occasion was MDMA. Later on Sunday, August 24, 1997, at 2:20 a.m., that evening, Agent Thompson approached Greg on the dance floor near the casino table and asked him for another capsule. Greg told Agent Thompson that he did not have anymore of the MDMA capsules but he could get a pill that was another version of MDMA. After discussing price with Greg, Agents Thompson and Caplinger walked away from Greg to one of the bars, where Agent Caplinger handed Agent Thompson some cash. The agents then returned to Greg who was still on the dance floor, and Agent Thompson handed him $30.00. Greg left the agents on the dance floor, but returned about five minutes later. When he returned, Greg handed one sand-colored pill to Agent Caplinger. This transaction occurred on the edge of the dance floor. The substance purchased by the agents on this occasion was Nexus. Agent Caplinger briefly held the pill at chest level with an open palm and showed it to Agent Thompson. The agents then walked to an area illuminated by a glass case, where Agent Caplinger again briefly held the pill out with an open palm and looked at it before handing the pill to Agent Thompson. Agent Caplinger held the pill in this open manner for only a few seconds. In furtherance of the investigation, Agents Caplinger and Thompson went to the licensed premises on Thursday, August 28, 1997, and continuing through Friday, August 29, 1997. On Thursday, August 28, 1997, between 11:45 p.m. and 11:55 p.m., while in the licensed premises, Agents Thompson and Caplinger approached Major Singh as he stood at the north end of the club. Major Singh advised the agents that he had plenty of pills with him as well as the capsules that Agent Caplinger had purchased from Greg the week before. Agent Thompson told Major Singh that they wanted to purchase the capsules. After negotiating a price for the capsules, the agents began counting their money to pay for the capsules. While the agents were counting the money, Singh told them, "Not here, it's too open." Major Singh and the agents then went to the west end of the premises next to a bar area where there were approximately ten patrons and two bartenders. Major Singh then took two clear-coated capsules containing a white substance from his pocket and handed them to Agent Thompson. Agent Thompson then took out an undetermined amount of cash and counted out $25.00, while she handed it to Major Singh. Agent Caplinger then took out another $25.00 and handed it to Major Singh. The agents then walked over to the bar, where Agent Caplinger placed the capsule on a napkin on top of the bar. After about one minute, Agent Caplinger picked up the pill. Although a bartender was working at the bar when Agent Caplinger placed the capsule on the napkin at the bar, the bartender made no comment about the capsule. There is no indication that the bartender ever saw the capsule. The substance purchased by the agents on this occasion was MDMA. On Friday, August 29, 1997, the agents noticed a patron, identified as Rory Lambert, exchanging money and small pill-sized objects with at least three patrons who approached him between the small bar and the entrance. Shortly thereafter, at about 12:40 a.m., Agent Caplinger approached Lambert and asked if he had any pills. Lambert advised he could get some pills and told Agent Caplinger the price of the pills. Agent Caplinger turned to Agent Thompson and asked for additional money. Agent Thompson then counted out the money to Agent Caplinger who then handed $50.00 to Lambert. A female patron handed something to Lambert, after which Lambert asked Agent Caplinger to hug him. Agent Caplinger complied with this instruction and hugged Lambert. As Agent Caplinger hugged him, Lambert pressed two pills in her hand. The substance purchased by Agent Caplinger on this occasion was MDEA. Kenny Sohl was five to seven feet, when the hug between Agent Thompson and Lambert occurred, but there is no indication that he saw the transaction described in paragraph 28. After purchasing the pill from Lambert as described in paragraph 28 above, Agent Caplinger approached the small bar and placed an order for a drink. While waiting for her order, Agent Caplinger held the pill in her open palm for between 15 and 20 seconds. At the time Agent Caplinger displayed the pill, there was a bartender working at the bar, and Kenneth Sohl was standing at the same bar approximately two to three feet from Agent Caplinger. There is no evidence that either the bartender or the Kenneth Sohl saw the pill in Agent Caplinger's hand or, that if they saw it, they could have recognized it as a controlled substance. On Friday, August 29, 1997, between 2:10 a.m. and 2:20 a.m., Agents Caplinger and Thompson approached McDaniel, a patron that they had dealt with on August 22, 1997, while in the licensed premises. The agents asked McDaniel about purchasing MDMA capsules. When the agents approached McDaniel, he was standing near a lighted glass display case near the front of the club. After negotiating a price for the MDMA capsules, the agents counted and exchanged money. Agent Thompson then handed McDaniel $55.00. McDaniel left the area and returned several minutes later. When McDaniel returned, he asked Agent Thompson, "Are you positive you're not a cop?" In response, Agent Thompson told McDaniel that she was positive. McDaniel then handed Agent Thompson two clear capsules which contained an off-white substance. The substance purchased by the agents in this transaction contained MDMA. On Thursday, September 4, 1997, Agents Caplinger and Thompson and other law enforcement officers returned to the licensed premises to continue the subject investigation. While at the licensed premises, the agents approached Lambert and asked if he had any pills. Lambert replied that he did not. While at the licensed premises on September 4, 1997, Agent Caplinger spoke to three employees and indicated to them that she was “rolling” or asked if they were “rolling.” None of the employees made any comment or took any action about Agent Caplinger's references to rolling, nor did any of them inquire as to what she meant by "rolling." There is no indication that these employees heard Agent Caplinger when she used the term "rolling" or knew what the term meant. During the course of this investigation, the term "rolling" was sometimes used by patrons in the club This term was known to the agents to be used to describe the effects of MDMA and other drugs. However, that term was unfamiliar to many of the employees of the licensed premises. In furtherance of the investigation, Agents Caplinger and Thompson went to the licensed premises on Thursday, September 11, 1997, and continuing through Friday, September 12, 1997. On Thursday, September 11, 1997, at about 11:00 p.m., Agent Thompson approached Milam at the dance floor and asked if he had "anything" tonight. Milam directed Agent Thompson to approach him when the club was "more crowded." Later that evening Milam approached Agent Thompson while she and Agent Caplinger were standing on the east side of the dance floor. Milam agreed to sell two pills for $50.00 to Agent Thompson. Once they agreed upon the price and quantity, Milam directed Agent Thompson to buy a drink at the bar then return and put the money on the caged dance platform that was next to where they were standing. Milam first placed the two pills on the cage. Agent Thompson then picked up the pills as Milam removed his hand. Agent Thompson then went to the bar. She later returned to Milam who was on the dance floor and placed $50.00 on the caged dance platform and put a bottled water on the corner of the money. Milam then picked up the money. The substance purchased by Agent Thompson on this occasion was MDMA. Between 12:25 a.m. and 12:30 a.m. on September 12, 1997, Agents Thompson and Caplinger approached Major Singh at the north end of the premises approximately 15 feet from the front entrance. After Major Singh indicated that he had some capsules, Agent Thompson asked Agent Caplinger, in Major Singh's presence, if she wanted some MDMA. Agent Caplinger answered in the affirmative. Major Singh then walked onto the dance floor. Agents Caplinger and Thompson followed Major Singh onto the dance floor and asked if they could buy some MDMA. Agent Thompson then took out $25.00 and gave it to Agent Caplinger. Agent Caplinger also took out $25.00, and handed all of the money to Major Singh. After Major Singh received the money from Agent Caplinger, he took two pills out of a tube and handed them to Agent Caplinger. The substance purchased by Agent Caplinger on this occasion was MDMA. On Friday, September 12, 1997, at 1:20 a.m., Agents Thompson and Caplinger approached Hall on the west side of the dance floor next to the cage. Agent Caplinger asked Hall if he "had anything." After the price and quantity of pills were negotiated, Thompson gave $40.00 to Hall. Hall then turned to an unknown male patron and asked the patron for "two." This unknown male patron reached in his pocket and gave something to Hall, who in turn gave two pills to Thompson. The agents then walked to a bar and while at the bar, Agent Thompson handed Agent Caplinger one of the pills she had received from Hall. Agent Caplinger placed the pill in her open palm and looked at it for approximately ten seconds before securing it on her person. The substance purchased by Agent Thompson on this occasion was MDMA. A bartender was working at the bar when Agent Caplinger displayed the pill as described in paragraph 38. Also, a manager was in the nearby vicinity. However, there is no indication that either the manager or bartender observed this display. On Friday, September 12, 1997, between 1:40 and 1:50 a.m., Agent Caplinger approached Manuel Marquez who was standing by a table where a white female was selling shirts, CD's, pipes, and other items. The agents approached Marquez because they had observed him that evening selling or giving pill-sized objects to other patrons. Agent Caplinger asked Marquez if she could get some pills. Marquez asked Agent Caplinger if she were a cop, to which she responded, "No." Agent Caplinger then agreed to purchase two pills for $60,00. Marquez left the area and while he was gone, Agent Thompson handed Agent Caplinger $60.00. The agents then counted the money. A few minutes later, Marquez returned and Agent Caplinger handed him the $60.00 in exchange for two pills. The substance purchased by Agent Caplinger on this occasion was MDMA. On Saturday, September 13, 1997, and continuing into Sunday, September 14, 1997, Agents Thompson and Caplinger and other law enforcement officers returned to the licensed premises in furtherance of the subject investigation. Between 12:25 a.m. and 1:15 a.m., on Sunday, September 14, 1997, Agent Caplinger approached a patron, Greg, and asked him if he "had anything." Greg agreed to sell her one pill for $25.00. Agent Caplinger handed Greg $50.00, and Greg returned $25.00 change to her. Kenny Sohl was standing approximately two feet away during this exchange, but did not observe this exchange. Approximately twenty to fifty minutes later Greg returned and handed Agent Caplinger one pill. The substance purchased by Agent Caplinger on this occasion was amphetamine. This exchange took place approximately three feet away from where an employee positioned at the VIP stairs, but there is no indication that the employee observed Greg hand the pill to Agent Caplinger. After she received the pill from Greg, Agent Caplinger then went to a bar in the licensed premises and approached Agent Elaine Pavan, who was participating in the investigation. While at the bar, Agent Caplinger held the MDMA pill in her open palm. Agent Pavan then removed the pill from Agent Caplinger's hand and held the MDMA pill above and over the bar. Agents Caplinger and Pavan spoke openly about taking the pill while at the bar, before Agent Pavan returned the suspected pill to Agent Caplinger who placed the pill on the counter briefly before securing it on her person. The agents' reason for displaying the pill as described in paragraph 41 was to see what action the bartender would take. However, the bartender said nothing and took no action and there is no indication that the bartender ever saw the pill or heard the comments made by the agents regarding the pill. On Sunday, September 14, 1997, at 2:00 a.m., Agent Caplinger approached a patron, Hall, whom she had first met at the licensed premises on August 22, 1997. When Agent Caplinger approached Hall, he was sitting on an elevated floor just above the dance floor on the west side on the dance floor. Agent Caplinger asked Hall if he "had anything." After Hall and Agent Caplinger discussed the type of drugs that were available and the price, Agent Caplinger handed Hall $30.00. Hall then returned three dollars to Agent Caplinger and handed her a pill. The substance purchased by Agent Caplinger on this occasion was MDMA. Later on Sunday, September 14, 1997, after the transaction described in paragraph 43, a patron, McDaniel, approached Agent Thompson. McDaniel was a patron with whom Agent Thompson had dealt on August 22, 1997, while she was on the licensed premises. When McDaniel approached Agent Thompson on September 14, 1997, he advised her that he could obtain MDMA for her. After Agent Thompson handed $40.00 to McDaniel, he told Agent Thompson that he would be right back. McDaniel came back ten minutes later, returned the $40.00 to Agent Thompson, and explained that he had been unable to find his supplier. On or about Thursday, September 18, 1997, and continuing into Friday, September 19, 1997, Agents Thompson and Caplinger and other law enforcement officers returned to the licensed premises as part of the Division's investigation. On Friday, September 19, 1997, at about 12:30 a.m., Agents Thompson and Caplinger approached Milam on the dance floor and asked if he "had anything." After a brief discussion regarding availability and price, Thompson agreed to purchase two pills for $50.00. Milam directed Agent Thompson to go to the bar and get her money ready and then return. Agent Thompson went to the bar and took out a $50.00 bill. She returned to Milam, who was still on the dance floor, and handed him the $50.00 bill and he gave her two pills. The substance purchased by Agent Thompson on this occasion was amphetamine. On Thursday, October 2, 1997, and continuing into Friday, October 3, 1997, Agents Thompson and Caplinger and other law enforcement officers returned to the licensed premises to continue the subject investigation. The investigation was expected to conclude this evening with the service of the Emergency Order of Suspension and the arrest of patrons who had sold controlled substances to the agents. On Friday, October 3, 1997, between 12:01 a.m., and 12:05 a.m., before the Emergency Order of Suspension was served, Milam approached Agent Thompson and told her that he had "beans," a slang for MDMA. After a short discussion about price, Agent Thompson purchase one pill for $25.00. The Emergency Order of Suspension was served on Friday, October 3, 1997, but after this transaction. During the two-month investigation of the licensed premises, Agents Caplinger and Thompson made purchases of MDMA, NEXUS, MDEA and amphetamine. These controlled substances were sold in the form or pills or capsules, and all were purchased from patrons in the licensed premises. The pills were the approximate size of an aspirin and the capsules were slightly larger than a Tylenol capsule. The agents purchased a total of twenty-eight pills and six capsules. There was nothing suspicious about these transactions. In many instances, the transfers took only a few seconds. In some cases, the transactions were done in separate steps so that the exchange of money and drugs was not simultaneous. Most of the individuals selling controlled substances to the agents took steps to disguise the transactions. The drug transactions were not done in an open manner, but in a secretive manner so as to avoid detection. Also, the vast majority of the transactions took place at the time the licensed premises were very crowded. By virtue of the large crowd, loud music, and the dim lighting in the licensed premises, these transactions could easily go undetected. On Thursday nights, the MARZ light show produced strobe-type lighting on the dance floor, making it more difficult, if not impossible, to observe these transactions. Moreover, the size and form these controlled substances made it much easier for them to be handed to someone without being seen or causing suspicion. The investigative reports of Agents Thompson and Caplinger reflect that they visited the licensed premises eleven times in an undercover capacity during the two-month investigation. Ten of those times they purchased controlled substances and one time they did not. Agents Caplinger and Thompson also visited the licensed premises undercover on a Wednesday night, a twelfth night, but did not include their activities of that evening in the investigative report. However, no purchases of controlled substances were made on that Wednesday night. The agents visited the licensed premises six times beginning on a Thursday evening and continuing into a Friday morning, and four times on a Saturday evening continuing into a Sunday morning, and one Sunday evening going into a Monday morning. The agents purchased controlled substances fifteen times on Thursday evenings and/or Friday mornings and six times on Saturday evenings going into Sunday mornings. No purchases were made nor attempted on Wednesday, Friday or Sunday nights. One transaction was completed in the morning hours of Friday, October 3, 1997, shortly before the execution of the Emergency Order of Suspension. Thursday and Saturday nights were the busiest and most crowded nights at the licensed premises. Accordingly, on those nights it was easier for drug transactions to occur and to go undetected. On Thursday evenings, patrons entered the club earlier in the night than on Saturday evenings. Often on Thursday evenings, there was a line of fifty to one hundred people waiting to go inside the licensed premises once it opened for business at 10:00 p.m. By 11:00 p.m. on Thursdays, there were usually 200 to 300 people in the club. By 11:30 to midnight on Thursdays, the club often filled to four hundred patrons. On Thursdays, from midnight to closing, 3:00 a.m., the club was usually almost completely full to its 599 person capacity. On Saturday evenings, it was not unusual for a crowd of 200 to 300 to accumulate at the licensed premises between 11:30 p.m. to 12:00 a.m. Similar to Thursday evenings, often between midnight to 3:00 a.m. on Saturdays, the licensed premises remained almost full to its 599 person capacity. On both Thursday and Saturday evenings, the music was played loudly from opening to closing without any breaks. Due to the typical capacity crowd at the licensed premises and the loud volume of the music on those evenings, communication between patrons would require speaking in above normal tones. It was not unusual for a person to have to cup his hands around the other's ear and yell to communicate at all. The majority of the drug transactions occurred on the days and at the times the licensed premises was most crowded. Though crowded on both Thursday and Saturday evenings, the licensed premises got more crowded earlier on Thursdays. In fact, six of the eleven deals that occurred on Thursday and early Friday morning were between midnight and 1:00 a.m., and the remaining five transactions occurred between 1:20 and 2:20 a.m. On Saturday evenings, when the licensed premises got more crowded later than on Thursday evening, only one drug transaction occurred on the Saturday evening continuing into Sunday morning between 12:00 a.m. and 1:00 a.m. The other five transactions took place on the Sunday morning between 1: 15 a.m. and 2: 30 a.m. Of the twenty-one purchases of controlled substances made by the agents, only four took place before midnight. Those four transactions were concealed or done in place or manner to avoid detection. Of the other seventeen transactions, eleven were made on Thursday evenings continuing into Friday mornings, and six transactions occurred on Saturday evenings continuing into Sunday mornings. Except for the transaction that occurred on October 3, 1997, at 12:05 a.m., before the Emergency Order of Suspension was served, the transactions occurred between the hours of 12:20 a.m. and 2:20 p.m., when the club was most crowded. There is no indication that drug sales were made on the less crowded Wednesday, Friday, and Sunday evenings. Moreover, there is no indication that drug transactions were conducted outside of the club where it was well lit or in the first entry way to the club. For the vast majority of the sales, it was the two agents who picked the day, time, and location of the purchase and sale. In only two of the twenty sales did a patron actually approach either the agents and then consummate a deal. For the remaining eighteen charged sales, it was the agents who approached the suspected drug dealer, usually on or around a crowded dance floor when the club was near or at full capacity. Officers Holder and Gomez of the Tampa Police Department were part of the team investigating the licensed premises. On some of the evenings that they were on the premises, they observed various types of "suspicious" transactions. In some cases, based on their observations, they gave Agents Thompson and/or Caplinger leads as to which patrons the agents should approach for prospective drug transactions. The investigation did not yield any evidence that any owner, manager, or employee of the licensed premises saw any drug purchase or witnessed any drug use or drug possession. Neither was there any indication that the licensee, any manager, or employee of the licensed premises was involved in selling, keeping, or delivering controlled substances on the premises. In Counts 1 through 20 of the Notice to Show Cause, ten different individual patrons were charged with selling controlled substances to Agents Thompson and Caplinger. Agents Thompson and Caplinger visited the licensed premises six times in August of 1997. During that time, thirteen purchases were made from nine of the ten charged drug dealers. Those nine patrons were identified as: Major Singh, Mary Vestil, "Tara," John Milam, Peter Harrison, Glen Hall, Greg, Rory Lambert and Douglas McDaniel. These nine patrons were responsible for selling to Agents Thompson and Caplinger twenty of the twenty-one times. Agents Thompson and Caplinger visited the licensed premises in an undercover capacity four evenings in September 1997. Seven drug purchases were made in September. With one exception, these drug transactions involved some of the individuals listed in paragraph 65. The only other person charged with selling controlled substances to agents in September 1997, was Manuel Marquez, who was responsible for one sale in the early morning hours of Sunday, September 12, 1997. On any given Thursday and Saturday evening, there were twenty to twenty-five staff members working at the licensed premises. Outside the front entrance, there were usually two doormen. Sometimes the VIP room had a special outdoor entrance manned by another doorman. At the club entrance, there was a cashier and another employee, who greeted the patrons. On some occasions a woman staffer would sell beer out of a beer tub toward the front of the club. At each of the larger bars, there were two bartenders and the smaller downstairs bar had one bartender. Two to three bar backs would stock all bars during the evening. The upstairs VIP bar had one bartender earlier in the evening and would have two bartenders later in the evening as the crowd increased. The D.J. and lighting crew worked on the balcony of the second floor. Two managers would report to general manager, Scott Sohl, who would in turn report to his brother, the licensee, Kenneth Sohl. Both managers would frequent various areas of the club during the evening. Scott Sohl and Kenneth Sohl often worked in a second floor office. There were also security personnel at the bottom of the VIP stairs and at the bottom of the stairs to the stage. In the early part of 1996, as the licensed premises became more popular, the licensee, Mr. Kenneth Sohl hired two uniformed, off-duty Tampa Police officers to maintain security outside of the premises. These officers worked on the two busiest nights, Thursdays and Saturdays, from approximately 11:30 p.m. to 3:30 a.m. On the nights that they were on duty, every hour to hour and a half, the officers usually walked through of the club to assist in maintaining overall security for the club. Each manager, doorman, and security person was equipped with a walkie-talkie type radio to communicate with other staff members on duty at the licensed premises. Moreover, each bar was equipped with a radio for the same purpose. The licensed premises was also equipped with video camera surveillance. Cameras were situated inside the front entrance capture views of individuals entering the licensed premises and patrons above and around each bar in the club. A TV monitor situated in the business office of the licensed premises was observed often by the general manager, Scott Sohl or the licensee, Kenneth Sohl. The monitor allowed management to view all areas where video cameras were situated, but did not necessarily allow concealed drug transactions to be seen. Also, the video cameras did not make a permanent record for later review. The licensee, Kenneth Sohl, hired an outside company, Professional, Inc., a food and beverage consultant service, to provide Responsible Vending Training to managers and staff of the licensed premises pursuant to Section 561.705, Florida Statutes. Even though the Division does not currently certify responsible vendors, it did so until 1991, when the law changed and no longer required such certification. In 1990, and prior to the change in the law, the Division issued a letter to Angel Alfonso, owner of Professional, Inc., indicating that his company met the minimum standards set by the Bureau of Vending Training and was being added to the Division's clearinghouse for responsible vendors. At the time of the subject investigation, all of the employees and managers of the licensed premises had received appropriate Responsible Vending Training. Most of the managers and employees had received this training as part of the regular Responsible Vending Training programs provided by Professional, Inc., pursuant to a contract with management of the licensed premises. In January 1997 and May 1997, management of the licensed premises contracted with Mr. Alfonso of Professional Inc. to visit the licensed premises, in an undercover capacity, during business hours to assess whether employees were stealing and whether they were properly performing their responsibilities. During these visits, Mr. Alfonso did not observe any type of illegal drug activity. There were two instances when the off-duty uniformed police officers hired by the licensee assisted in seizing controlled substances. First, in August 1997, a month before the investigation of the club began, staff of the licensed premises alerted police to a counterfeiter. Pursuant to that arrest, MDMA pills were seized from that person. Also, on August 29, 1997, one month into the subject investigation, Officer Julio Martinez of the Tampa Police Department, hired by Respondent as an off- duty officer, confronted a patron in line outside the club. This detention led to a seizure of fifty MDMA pills from that patron. On another occasion during the investigation, Officer Martinez alerted the general manager, Scott Sohl, to a person that the Martinez suspected may have been involved in drug activity. Officer Martinez had seen this suspicious person while he was doing a walk through the club. Mr. Sohl immediately ejected the patron and told him that the club "does not need that kind of stuff around here." Since Club 1509 opened in 1995, several employees were fired by the licensee, Kenneth Sohl, or by manager, Scott Sohl because of suspected drug use or involvement. These firings occurred from as much as a year before the investigation up to one month before the investigation. Mr. Kenneth Sohl became involved in the bar business shortly after high school and has maintained an alcoholic beverage license on and off for the last 18 years. Immediately preceding his venture at 1509 8th Avenue in 1994, Kenneth Sohl owned and successfully operated a rock-n-roll club in Tampa for eight years. While operating that club, Kenneth Sohl never allowed the sale of drugs in his business and was never charged with any violations related to controlled substances. Prior to his involvement with the licensed premises, Kenneth Sohl had owned and operated approximately four other licensed premises without any such violations. Thomas Graham is a six-year veteran of the Hillsborough County Sheriff's Office. Deputy Graham frequented the licensed premises on a regular basis, including Thursday and Saturday nights. During his visits there, Deputy Graham never observed illegal drug use or sales. Through his work, Deputy Graham had some knowledge of what MDMA was, but was unfamiliar with the "street names" for MDMA and its effects on individuals who used it. Deputy Graham has known Kenneth Sohl for at least six years, including much of the time when Kenneth Sohl owned another night club. During the time that Deputy Graham has known Kenneth Sohl, Mr. Sohl has never been involved in drugs and has always cooperated with law enforcement officials. Dr. Augustus Mauser, a professor at the University of South Florida; Dr. Lawrence Shepherd, an emergency room physician; and Dr. Frederick McClimans, an orthopedic surgeon, frequented Club 1509 on Thursday evenings, but more often Saturdays, including the time of the investigation. Although they were usually at the licensed premises several hours, they never observed any drug use or drug transactions. Each of the individuals knew Kenneth Sohl and had they seen any suspicious activity they would have reported it to the licensee, or any manager nearby. In his work as an emergency room physician, Dr. Shepard had experience dealing with and treating patients under the influence of MDMA. Based on his experience, Dr. Shepard indicated that it was not possible to simply look at a person in a club and determine that the individual was under the influence of the controlled substance. Officers Holder and Gomez, who participated in the investigation of the licensed premises, acknowledged that MDMA use in the Tampa area is very new. Although these officers work in law enforcement, they only learned about MDMA within the last year or two. Considering that designer drugs have only recently become popular in the Tampa area, it is not surprising that the licensee, managers, many employees and Mr. Alfonso were not very familiar with these drugs nor the common terms used and associated with their use. During the course of the investigation none of the managers, bartenders, or employees ever saw any drug use or drug deliveries within the licensed premises, or any type of exchange of money for an object that might be an indication of a drug transaction. Had they seen such activities, they were trained to immediately report such activity to a manager or owner. Managers and employees of Club 1509 were aware that the club's policy was that any illegal drug use or activity would not be tolerated on the licensed premises, although this policy was not in writing. Officer Kevin Ahles of the Tampa Police Department has been involved in narcotics investigations for eight years. On October 2, 1997, the night the Emergency Order of Suspension was to be served, Officer Ahles was in the licensed premises in an undercover capacity. Officer Ahles was in the licensed premises "for the couple hours prior to uniforms arriving." When asked what he observed that evening Officer Ahles stated, "To be honest with you, it looked fairly normal, just like any other club." Officer Ahles indicated that the patrons were drinking, dancing, and socializing. Even though Officer Ahles was specifically on the look-out for drug activity, he admitted that he saw "none" in the two hours that he was surveilling the licensed premises. Shortly before or during the investigation of the licensed premises, Dave Mersky, the operator of the MARZ light show featured on Thursday nights, telephoned Captain Ashley of the Division and invited him to view his light show on any Thursday night. It is unclear why Mr. Mersky extended the invitation. However, according to Captain Ashley, Mr. Mersky believed that the Captain Ashley did not like him. Captain Ashley accepted Mr. Mersky's invitation and went to Club 1509 one Thursday evening to observe the light show, although the exact date is unknown. There is no indication that Captain Ashley observed any drug transactions on the Thursday evening that he visited the licensed premises. One week before the execution of the Emergency Order of Suspension, the licensee, Kenneth Sohl, met with Special Agent George Miller of the Division. At that meeting, Kenneth Sohl expressed concern that the Division might not approve of the company that he was using to provide Responsible Vendor Training for managers and staff of Club 1509. Kenneth Sohl asked Agent Miller if that was the case and, if so, could Agent Miller recommend another company. In response to Kenneth Sohl's question, Agent Miller stated that he was prohibited from recommending any company. During this meeting, Mr. Kenneth Sohl also asked Agent Miller if there were any problems that he needed to address with regard to the licensed premises. Agent Miller answered this question in the negative. No time prior to the service of the Emergency Order of Suspension was the Respondent or any of the managers or staff informed of a drug problem in Club 1509. The investigation did not reveal that any owner, manager, or employee was involved in drug activity. After an entire two month investigation, no owner, manager or employee was arrested for any illegal activity. There is no credible evidence that any owner, manager or employee disregarded or ignored known drug use, possession or sales on the licensed premises. The Responsible Vendor Training provided by Professional, Inc., substantially complied with the requirements of law. The training included among other things, a review of Responsible Vending Training and company policies and procedures, and a discussion of the use or trafficking of controlled substances. Respondent did not have signs conspicuously posted in the licensed premises informing customers of the vendor's policy against serving alcoholic beverages to underage persons and informing customers that the purchase of alcoholic beverages by an underage person or the illegal use of or trafficking in controlled substances will result in ejection from the premises and prosecution. Shortly after the service of the Emergency Order of Suspension, Respondent applied to put the subject license in an inactive status. Other business associates of Kenneth Sohl then placed another alcoholic beverage license on the premises, and the premises remains open to this day.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a final order dismissing the Administrative Action. DONE AND ENTERED this 8th day of September, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1998. COPIES FURNISHED: Thomas D. Winokur, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Richard W. Bisconti, Esquire G. Michael Nelson, Esquire 3333 West Kennedy Boulevard Suite 103 Tampa, Florida 33611 Lynda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Northwood Centre Tallahassee, Florida 32399-0792 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Northwood Centre Tallahassee, Florida 32399-0792
