The Issue Whether Respondent's plea of nolo contendere to the crime of possession of a controlled substance (for which adjudication was withheld) is sufficient to support the imposition of discipline with regard to his alcoholic beverage license.
Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to issue beverage licenses pursuant to Chapter 561, Florida Statutes, and applicable rules. Prior to September 11, 2000, Respondent, doing business as Smiley's, was the owner and holder of a beverage license, DBPR License No. 74-05336, Series 2-COP, which permits him to sell beer and wine for consumption on premises. On October 9, 1998, Respondent was charged by information with sale and delivery of cocaine. He was acquitted of that charge on May 12, 2000. Subsequently in a separate incident, Respondent was charged with possession of cocaine and on September 11, 2000, pleaded no contest to that charge. Pursuant to Respondent's timely request for formal proceedings, Petitioner's counsel initiated discovery in the course of this administrative proceeding through a Request for Admissions to which Respondent failed to respond. Respondent failed to provide a satisfactory explanation for this circumstance and, upon motion of Petitioner, the Request for Admissions was deemed admitted. Those admissions establish that Respondent entered a no contest plea on September 11, 2000, to the charge of possession of cocaine and that the plea bargain negotiated at that time also included two days' incarceration. Additionally, the admissions establish that Respondent is aware that possession of cocaine is a crime punishable by imprisonment for a term of five years. Respondent's own testimony is uncorroborated by other direct evidence and fails to establish that he possesses good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order revoking Respondent's alcoholic beverage license, DBPR License No. 74-05336, Series 2-COP. DONE AND ENTERED this 30th day of July, 2001, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 30th day of July, 2001. COPIES FURNISHED: Paul Kwilecki, Jr., Esquire 629 North Peninsula Drive Daytona Beach, Florida 32118 Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1007 Lt. John P. Szabo Department of Business and Professional Regulation 400 West Robinson Street, Room 709 Orlando, Florida 32801 Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact At all times pertinent to the issues herein, alcoholic beverage license No. 26-01841, Series No. 2-APS, was issued to Respondents, Frank D. and Estella S. Ryers, for their establishment known as the Big B Restaurant, located at 5570 Avenue B, Jacksonville, Florida. A 2-APS license permits the package sale only of beer and wine. It does not permit the consumption on the premises of beer, wine, or liquor. On March 27, 1983, Investigator Wendell M. Reeves conducted an undercover operation directed against the Big B Restaurant predicated upon reports received by Petitioner that Respondents were conducting sales of alcoholic beverages not permitted by the license at the licensed premises. In furtherance of that operation, Reeves utilized another beverage agent, Van Young, in an undercover capacity to make a controlled buy of an improperly sold substance from the licensees. Prior to sending Young into the licensed premises, Reeves searched Young to ensure that he, Young, had no alcoholic beverage or money in his possession. Satisfying himself that that was the case, he gave Young $15 in U.S. currency and sent him into the licensed premises to make the buy. Young entered the Big B Restaurant at 1:00 p.m. and came out 17 minutes later. When he came out of the licensed premises, Young came over to where Reeves was waiting and turned over to him a sealed 200 ml bottle of Fleishman's Gin. Young told Reeves that he had purchased the gin in the licensed premises from a black male whose description matched that of Respondent Frank D. Byers which is contained on Respondent's application for license. Respondent Frank Byers denies making the sale. On balance, however, there is little doubt it was Respondent who made the sale, especially in light of the fact that this same licensee was issued a letter of warning by the Division of Alcoholic Beverages and Tobacco in October 1981 for possession on the premises of an alcoholic beverage not permitted to be sold under the license. Young also stated that he purchased a second bottle which he consumed on the premises with another black male. However, this evidence was in the form of Reeves' report of what was told him by Young. As such, it is clearly hearsay and can be used only to corroborate or explain other admissible evidence. Therefore, as to the allegation regarding the consumption of the gin on the premises, since it is the only evidence of that offense, it cannot be used to support a finding of fact on that allegation. It may, however, be used to explain how Young got the bottle with which he was seen by Reeves to come out of the licensed premises. Several days later, on March 30, 1983, Reeves again entered the licensed premises, where he told Respondent Estella Byers he was there to inspect the site. She opened the cooler for him and he inspected the beer inside and the cigarettes. While he was doing that, however, he noticed her take a cloth towel and drape it over something behind the bar. He went over to it, removed the towel, and found that it covered a bottle of Schenley's gin. Mrs. Byers immediately said she thought it was her husband's, Respondent Frank Byers, but another individual present at the time, Sharon Thomas, said she had taken it from her brother, who was drunk, and had put it there. Again, as to Ms. Thomas' comments, they, too, are hearsay and can only serve here to explain or corroborate other admissible evidence. In any case, after Ms. Thomas made her comment, she was immediately contradicted by Respondent Estella Byers, who again indicated she thought the bottle was her husband's. In any case, at the hearing, Respondent Estella Byers contended she did not know it was there. On balance, Mr. Reeves' testimony that she covered it with a towel while he was inspecting and the evidence of the prior warning for an identical offense tend to indicate she did know it was there and that it was unlawful for it to be there. There is, however, no evidence to establish sufficiently the reason for its being there.
Findings Of Fact On April 26, 1982, the Petitioner Dania Bank, filed a request with the Respondent Department of Business Regulation, Division of Alcoholic Beverages and Tobacco to record a lien holder's interest against alcoholic beverage license 16-15 issued to the Respondent Chula, Inc., doing business as Chalet Ole and Chula Liquors. The lien was created on July 3, 1981, and filed with the Secretary of State on August 10, 1981.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Division of Alcoholic Beverages and Tobacco denying the Petitioner Dania Bank's request to record a lien against alcoholic beverage license number 16-15. DONE and ENTERED this 31st day of October, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 31st day of October, 1983. COPIES FURNISHED: Richard E. Whitney, Vice President The Dania Bank 255 East Dania Beach Boulevard Dania, Florida 33004 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard Milan Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Harold F. X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Based on the evidence presented at hearing, the following facts are determined: At all times material to the charges, Ronald Wayne Diamond and Susan Joyce Saiia owned and operated a partnership trading as Susan's Las Olas Seafood Market at 1404 E. Las Olas Boulevard, Fort Lauderdale, Florida ("the licensed premises") On the licensed premises, they sold alcoholic beverages under the authority of alcoholic beverage license No. 16-3029, Series 2-APS. On January 17 or 18, 1982,and on January 19, 1982, Broward County Sheriff's Department Detective Fernandez entered the licensed premises in an undercover capacity and negotiated with Respondent Ronald Diamond for the sale and delivery of cocaine and cannabis. Respondent Susan Saiia was present and aware of these negotiations, although she did not actively participate in them. On one of these occasions, she warned Respondent Diamond to be careful, that she had seen someone in the back alley who looked like he was wearing a recording device. On January 20, 1982, Respondent Diamond was arrested on charges of unlawful trafficking in cocaine and possessing cannabis in violation of Sections 893.135(1)(b) and 893.13(1)(e), Florida Statutes. He was taken to the licensed premises where a search warrant was executed and two ounces of marijuana were found in an office file cabinet. (Petitioner's Exhibit No. 2) On May 6, 1982, the Circuit Court of the Seventeenth Judicial Circuit, adjudging Respondent Diamond guilty of these felonies, sentenced him to fifteen years in prison and fined him $250,000 for trafficking in cocaine. He was sentenced to an additional five years for the possession of cannabis. (Petitioner's Exhibit No. 3)
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondents' alcoholic beverage license No. 16-3029, Series 2-APS, be revoked for multiple violations of the Beverage Law. DONE and ORDERED this 12th day of July, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1983. COPIES FURNISHED: John A. Hoggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Maurice Graham, Esquire Suite 2 2161 E. Commercial Blvd. Ft. Lauderdale, Florida 33308 Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether respondent's alcoholic beverage license should be disciplined for allegedly serving alcoholic beverages to a person under the age of 19 contrary to Section 562.11(1), Florida Statutes.
Findings Of Fact Respondent holds alcoholic beverage license No. 64-00061, Series 6-COP. Under this license, it operates a liquor store and lounge, where it serves alcoholic beverages, at ABC Liquors #65 ("lounge #65" or "licensed premises"), 2527 Reid Street, Palatka, Florida. (Testimony of Ewing, Holloway, Ottens.) I. At approximately 7:00 p.m. on October 23, 1981, Clay Lamar Strickland, 16 years old, entered respondent's lounge in the company of several friends--one was 20, the others were 19 years old. During the two hours which followed, he ordered and was served by two barmaids, a beer and eight or nine mixed alcoholic drinks. Neither barmaid requested identification. (Testimony of Strickland.) At approximately 9:30 p.m., he left the lounge for twenty minutes, then returned and ordered additional mixed drinks. Again, the barmaids did not check his identification. (Testimony of Strickland.) When he left the lounge at the end of the evening, he was involved in a car accident and charged with driving while intoxicated and wanton reckless driving. After a test was administered, he was informed that the alcohol content of his blood was 0.12 percent. (Testimony of Strickland.) The two barmaids who served Mr. Strickland, Mary Tyler and Brenda Adams, did not intentionally serve alcohol to a minor. They believed he was 19 or older. At that time, he played football for Palatka High School; he was approximately 5'll" tall and weighed 170 pounds. Because of his size and mature-looking face, he could easily have been mistaken for an adult. (Testimony of Adams, Tyler, Strickland.) October 23, 1981, was not r. Strickland's first visit to the lounge. Once before, he had succeeded in purchasing one beer; on other occasions, his identification had been checked and service was refused. He was well aware that he was underage and could not legally purchase alcohol. (Testimony of Strickland.) II. Respondent operates 148 similar liquor stores and lounges throughout Florida. It has announced and repeatedly emphasized to its employees a policy prohibiting sales of alcohol to minors. Its regulations inform new employees of the law against sales of alcohol to persons under 19, and require that bartenders check I.D.s of anyone who "doesn't look 23" or older. Periodic bulletins which must be signed and returned by employees, and posted notes of supervisors' meetings have reiterated respondent's company-wide policy against the sale of alcohol to minors. Further, the manager and night manager of store #65 frequently reminded their employees of the policy against sales to minors and the requirement to check I.D.s when in doubt about a customer's age. Ms. Tyler and Ms. Adams, the barmaids who served Mr. Strickland, were aware of this policy. (Testimony of Holloway, Tyler, Adams; R-1, R-2, R.-3.) On the whole, respondent has been successful in preventing sales of alcohol to minors in its stores and lounges. In the last ten years, it has been cited only ten times for violations relating to the unlawful sale of alcohol to minors. But a disproportionate number of those violations occurred at the Palatka #65 lounge. On two previous occasions, in 1979 and 1981, respondent admitted to unlawful sales of alcohol to minors at the #65 lounge and paid civil penalties. (Testimony of Holloway; P-1, P-6.) Yet, after each of these violations, including the incident involving Mr. Strickland in October, 1981, respondent's remedial action was simply to reinstruct employees at #65 of its policy not to serve alcoholic beverages to minors and to prevent such incidents from occurring. This action was not substantially different from the routine reminders it periodically issued to its employees in the past. (Testimony of Holloway, Ottens, Lindholtz.) At lounge #65, signs were not posted calling attention to its policy that sales to minors were prohibited. Neither did it post an employee at the main entrance to check I.D.s and keep minors out of the premises. (Testimony of Holloway, Ottens, Lindholtz.) III. The foregoing findings support a factual inference that respondent was not reasonably diligent in taking steps to prevent further repetition of sales to minors at its #65 lounge. Having been placed on notice that such incidents were occurring in disproportionate number at #65 lounge, it had a duty to investigate, to determine why such a phenomenon had occurred, and to take further precautionary measures. Instead, it was satisfied to simply remind the employees of store #65 of longstanding company policy.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license for lounge #65 be suspended for thirty days from entry of the final order in this proceeding. DONE and RECOMMENDED this 1st day of October, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1982.
The Issue Whether petitioner's application for an alcoholic beverage license should be denied because of the direct or indirect interest of John Lee Johnson, a person allegedly lacking good moral character.
Findings Of Fact In May, 1982, petitioner Betty Jean Johnson applied for a 2 APS (beer and wine) alcoholic beverage license to be used in connection with a business known as Johnson's Corner Grocery, 1400 North J. Street, Pensacola, Florida. On her application, petitioner indicated that she owned the business and that no other person had a direct or indirect interest in the business. (R-1) Prior to the petitioner filing her application, John Lee Johnson, her husband, had applied for a beverage license for the same location under his own name. When he failed to disclose his criminal history on the application, his application was denied and he was charged with the crime of filing a false official written statement. On May 12, 1982, he was convicted by the County Court of Escambia County. (Testimony of Baxley; R-3) John Johnson's filing of a false official statement supports an inference that he lacks good moral character. Petitioner did not present evidence sufficient to rebut or negate this inference. Contrary to petitioner's assertion, John Johnson has a direct or indirect interest in Johnson's Corner Grocery. He owns the underlying real property. He signs, and is authorized to sign, checks on the business account of Johnson's Corner Grocery. The business's utilities, light, water, and gas accounts are all in his name. (Testimony of Baxley, Johnson, Kelly; R-4) Petitioner, however, manage's the day-to-day operations of Johnson's Corner Grocery. On her application, she indicated that she had purchased the business for $80,000, with $25,000 down, and $55,000 financed by the Barnett Bank. She now admits that the $25,000 down payment was provided by John Johnson, her husband, and that he also co-signed the $55,000 note and mortgage. Her application, however, does not disclose Mr. Johnson's participation in the purchase and financing of, the business. (Testimony of Johnson; R-1, R-4) On November 9, 1982, three days before hearing, Mr. Johnson leased the Johnson's Corner Grocery property to petitioner for $675.00 per month for three years. The handwritten lease, which was not signed in the presence of two subscribing witnesses, states that Mr. Johnson will not be "responsible for . . . the operations of . . . [the] business." This assertion is rejected as unworthy of belief in light of his extensive involvement in purchasing and setting up the business, and his continuing access to its funds. (P-1)
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: On October 24, 1985, Petitioner filed an initial application with Respondent to obtain an alcoholic beverage license. The alcoholic beverage license was to be used in the operation of a small restaurant which Petitioner owned, known as El Conquistador Restaurant, in Homestead, Florida. The Petitioner is the sole owner of El Conquistador Restaurant. The application listed the Respondent, Maria Andarcio as the sole proprietor and only person having a financial interest in the business known as El Conquistador Restaurant. During the processing of the application, Mr. Ross, the investigator assigned to Petitioner's case, noticed that the application appeared to have several discrepancies. In particular, Mr. Ross was concerned because the financial information submitted with the initial application listed Julio Andarcio, Respondent's estranged husband, as the sole depositor of the expense account but he was not listed as having any financial interest in the business. Secondly, Petitioner failed to provide sufficient information regarding her employment history. Lastly, a lease which was part of the initial application, identified a potential undisclosed interest, Jose Osario, as a co- leasee. On November 15, 1985, Mr. Ross, routinely mailed a "14 day letter" to Petitioner requesting additional information. In particular, the "14 day letter" directed the Petitioner to provide additional information within 14 days from the date of receipt of the letter. The additional information requested was as follows: List occupation for the past 5 years on personal questionaire. Julio Andarcio must be fingerprinted and submit personal questionaire." The Petitioner failed to provide the information requested in the 14 day letter. Thereafter, Respondent was unable to fully investigate the license application and denied the Petitioner's license on January 8, 1986. For some reason, the Petitioner did not receive the 14 day letter which Respondent sent by regular mail. Therefore, she did not respond within the requested time period. The Petitioner was born in Cuba and speaks very little English. The language barrier contributed to the apparent discrepancies in Petitioner's initial application. Mr. Ross opined that based on all of the information that he had received up to the time of the hearing, the Petitioner would have been granted a beverage license had she only responded to the "14 day letter."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered allowing the Petitioner 20 days from the date thereof in which to provide Respondent with the information requested in the initial "14 day letter," thereby making her application complete. The Respondent shall thereafter review and process the application in the standard and routine manner. DONE and ORDERED this 24th day of October, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON 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 24th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1176 Rulings on Proposed Findings of Fact Submitted by the Petitioner (None Submitted) Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 3. Partially adopted in Finding of Fact. Matters not contained therein are rejected as unnecessary. Adopted in Finding of Fact 5. Rejected as a recitation of testimony and/or argument. Partially adopted in Finding of Fact. Matters no contained therein are rejected as subordinate. COPIES FURNISHED: Armando Gutierrez, Esquire 2153 Coral Way, Suite 400 Miami, Florida 33145 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1077 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Bell, Esq. General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301-1927 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301-1927
Findings Of Fact The Tanga Lounge, operated by Respondent Rodde Inc., is located at 6333 West Columbus Avenue, Tampa, Florida. This facility has been licensed by Petitioner at all times relevant to these proceedings. Respondent's records show Mr. Joe Redner as the sole stockholder and corporate officer of Rodde, Inc., which is the holder of alcoholic beverage license No. 39-738. Case No. 81-2566 contains three counts of begging or soliciting for alcoholic beverages by employees of Respondent on August 6, 1980. Testimony by former Beverage Officer White established that the solicitations of three drinks by two employees were made as charged in the Notice to Show Cause. White purchased the drinks as requested by these employees, who received a "ticket" for each of the drinks purchased for them by White. Case No. 81-2567 contains 44 counts of begging or soliciting drinks by various employees of Respondent and 44 counts charging that Respondent conspired with these employees for the purpose of soliciting drinks. These charges are primarily based on the investigations of Beverage Officers Gary Hodge and Michael Freese. The period of their investigation was October 17, 1980 through May 15, 1981. Count 52 was based on a solicitation of Detective Phil Mickel of the Tampa Police Department, who was in the licensed premises in an undercover capacity on November 6, 1980. At the request of dancer-employee Cathy Andrews, Mickel purchased a "double" for her and observed that she received two tickets from the waitress. 5 Former Tampa Police Department Detective Nick Haynes was in the licensed premises on November 6, 1980, and was approached by the dancer-employee, Cheryl Jonas, who requested that Haynes purchase a drink for her. He did so. This transaction occurred as charged in Count No. 51. Beverage Officer Freese individually and in conjunction with Beverage Officer Hodge, accounted for 38 solicitation charges (Counts 53-57, 59-63, 66, 68-88, and 163-167) . The solicitations charged in Counts 53, 55, 71-80, 83, - 84, 88, 163, 166 and 167 occurred as alleged and involved direct requests for the purchase of drinks ("Will you buy me a drink," or words of similar import) . Freese observed employees receive tickets for these drinks from the bartender or waitress in most instances. The solicitations charged in Counts 54, 56, 57, 59-63,66, 68-70, 81, 82, 164 and 165 were not supported by evidence of direct requests for the beverage purchases by employees of Respondent. At a meeting held about December 17, 1980, Beverage Officers Freese and Hodge were instructed by their supervisor to require that dancers request drinks before ordering. This procedure was adopted to avoid situations where the beverage officer was not asked to buy a drink, but eventually received the bill for the dancer's drink. In implementing the instructions, Freese used these or similar words: "If you want a drink, ask for it.", This statement possibly misled the dancers to believe that Freese was inviting them to order whenever they wanted drinks. The date when Freese first used this statement was not established, but it was subsequent to the mid-December meeting. It was noted that Freese was not solicited during the first two months of the investigation. Therefore, all or substantially all of the solicitation charges involving Freese took Place after he first issued the "invitation." Beverage Officer Hodge individually testified as to solicitation Counts 58, 64, 65 and 67. Counts 58, 65 and 67 did not involve a direct request for beverage purchase. Count 64 occurred as alleged and was based on a direct request for beverage Purchase ("Why don't you buy me one now?"). This request was made during the early morning of January 13, 1981. Although this was after the December meeting which Hodge attended, it was not shown that he made any statement which could have been interpreted as an "invitation" by any employee of Respondent. The fact that customers regularly Purchased drinks for the dancers was well known to the management as evidenced by the tickets issued to employees for drinks purchased in their behalf. These tickets were redeemable by the dancers for one dollar each. Thus, employees were rewarded and implicitly permitted to solicit drinks. Respondent's announced policy was, however, to reprimand or discharge any employee who was caught begging or soliciting drinks. This policy was attested to by bartenders; former employees and dancers. Although it cannot be found that Respondent actively encouraged its employees to solicit drinks, it did encourage socializing with customers to a degree which would elicit offers to purchase drinks for them. Respondent has since discontinued the practice of issuing tickets or other employee incentives to obtain customer purchased drinks. Counts 127 through 161 involve drug charges. Purchases were made by Beverage Officer Freese and Hedge, individually and together. Their testimony and that of Florida Department of Law Enforcement Crime Lab personnel established that controlled substances were purchased from dancer-employees of Respondent on the licensed premises as charged in Counts 127 through 137, 156 and 158. The transactions which-were established to have been carried out involved cocaine, methaqualone and cannabis deliveries by dancer-employees Margie Wade, Janie Marsie, Lori Basch and Lisa Scibilia on February 21, 24, 27; March 2, 9, 13, 17, 23; May 13, 15, 1981. It should be noted that Counts 136 and 137 actually involved one transaction where Hodge and Freese split the delivery. Count 161 concerned a transaction outside the licensed premises and this count, as well as Count 158, involved an employee of another establishment. Petitioner's Exhibit 43 and the supporting testimony concerned a transaction for which there was no charge. Counts 138 through 151, 154 and 159-161 alleged conspiracies to deliver controlled substances corresponding to other counts which alleged actual deliveries. There was testimony on the involvement of third person (not shown to be associated with the Respondent) only as to Counts 134, 146, and 147, which essentially covered a single transaction. No other evidence of conspiracy was presented. On one occasion, Redner was in the Tanga Lounge and within about 15 feet of the beverage officer and the dancer when the delivery took place. However, there was no evidence that Redner was involved or that he had any knowledge of the transaction. Testimony by a former employee that Redner participated in drug use was lacking in credibility and was not corroborated. Counts 3 through 30 and 33 through 50 are charges of lewd dancing by employees of Respondent on the licensed premises. The charges cover 46 dances on 12 separate dates between October, 1980, and February, 1981, performed by 11 different dancer-employees. The acts complained of in these counts were witnessed and attested to by Beverage Officers Hodge and Freese and Tampa Police Department Detective Mickel. The alleged lewd conduct included exposing of the breasts, vagina and anus by dancers during their on-stage performances. Typically, the dancers received dollar tips which customers placed in their bikini bottoms. Some dancers allowed customers to reach inside the bikinis in order to touch their pubic areas. On several occasions the dancers squatted and picked up the dollar bills with their exposed genital areas. On December 11, dancer Cathy Andrews rubbed her vagina, then rubbed the genital area of Beverage Officer Freese, who was observing the dance. Mr. Redner was present during much of the alleged lewd conduct. Although Redner testified that "flashing" was acceptable, the exposure of sexual organs as attested to was not limited to brief "flashes," but was prolonged. Further, Respondent's contention that dancers receiving tips tried to avoid contact by customers is not credible. Rather, the testimony of the officers established that dancers frequently encouraged customers to place their hands against the dancers pubic areas when offering tips. Respondent's, lounge is advertised as an adult entertainment facility and is generally known to include nude dancing. There was no competent evidence as to community standards for this type of conduct in the Tampa area, nor was there any evidence that these acts shocked or offended anyone present other than the investigating officers. Detective Mickel conceded that about five other bars he has visited offer this type of entertainment. Counts 31 and 32 concern an offer of prostitution by one of the dancer-employees to the beverage officers. Their testimony established that the offer was made as charged. This was, however, a single incident and there was no evidence that such offers were recurring or that Respondent had knowledge of this transaction. Counts 1 and 2 of Case No. 81-2567 allege that Robert Rodriguez holds an undisclosed interest in the licensed premises. Such interest, if any, was not reflected in the license transfer application submitted on April 23, 1976. Rather, Joseph Redner and Joe DeFriese were identified as the sole stockholders with no direct or indirect interest held by any other person. Rodriguez previously owned an interest in Deep South Plantation Foods, Inc., whose alcoholic beverage license was revoked by Petitioner. Redner was at one time employed by Rodriguez as manager of Deep South Petitioner asserts that Rodriguez became ineligible to hold an interest in an alcoholic beverage license as a result of the revocation, pursuant to Section 561.15, Florida Statutes, and that he and Redner therefore concealed Rodriguez's subsequent interest in the Tanga Lounge. Respondent contends that Rodriguez is the manager of the Tanga Lounge, but holds no direct or indirect interest therein. Rodde, Inc., was organized on April 19, 1976, and a $2,000 down payment deposit on the contract for purchase of the Tanga Lounge and liquor license was made on April 20, 1976, pursuant to contract signed by DeFriese and the prior owners on that date. This $2,000 check was issued by Robert Rodriguez against his own account. Petitioner produced this cancelled check (Petitioner's Exhibit 4) and numerous other documents which establish that Rodriguez participated in all aspects of Rodde, Inc., management and financial operations since its inception. Rodriguez has unrestricted authority to withdraw funds from corporate accounts and has signed or cosigned for loans and credit purchases. Rodriguez also utilized a Rodde, Inc., credit card to pay personal expenses on a vacation to Las Vegas in 1979. There was no evidence of reimbursement or other accounting to the corporation for these expenditures. The testimony of the Rodde, Inc., employees did not corroborate Redner's testimony that Rodriguez is manager of the Tanga Lounge. Rather, these employees believed Rodriguez was somehow associated with the business, but regarded Redner as the manager and their only supervisor. Rodriguez issued two checks for $1,408.05 on December 1, 1979, one payable to himself and the other to Redner (Petitioner's Exhibit 32) . These checks each carried the notation "bonus $1500", with a further notation apparently accounting for $91.95 in withholding tax. In view of Rodriguez's duties and functions within the corporation, this "bonus" can only be considered a participation in profits. Redner's credit rating and financial management skills are poor. Therefore, Respondent contends that a manager with strength in these areas was needed to ensure business success. However, Rodriguez's unlimited authority in dealing with corporate funds, the investment or loan of his personal funds, his participation in business profits and the absence of any apparent supervisory duties are inconsistent with the employee theory held out by Respondent.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent be found guilty of the charges contained in Counts 1, 2 and 3 of the Administrative Complaint/Notice to Show Cause in Case No. 81-2566. It is further RECOMMENDED that Respondent be found guilty of the charges contained in Counts 1, 2, 31, 32, 51, 52, 64, 127-137, 156, and 158 of the Administrative Complaint/Notice to Show Cause in Case No. 81-2567. It is further RECOMMENDED that all other charges be dismissed. It is further RECOMMENDED that Respondent's Alcoholic Beverage License No. 39-738 be revoked. DONE and ENTERED this 9th day of July, 1982 at Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1982.
The Issue The issue presented is whether Respondent Willie Lee Lewis d/b/a LS Lounge is guilty of the allegations contained in the notice of Administrative Action filed against him, and, if so, what disciplinary action should be taken, if any.
Findings Of Fact Respondent Willie Lee Lewis d/b/a LS Lounge is the holder of alcoholic beverage license No. 53-01765, series 2-COP, authorizing him to operate as a vendor of alcoholic beverages. On May 31, 1996, Respondent filed with the Department his Application for Alcoholic Beverage License and Cigarette Permit and its accompanying Personal Questionnaire form. The Personal Questionnaire form contains a question asking if the applicant has ever been arrested or charged with any violation of the law other than minor traffic violations, and, if so, whether the applicant was convicted. Respondent answered "yes" to the first part of the question and "no" to the second part and added a notation that "adjudication was withheld." At the bottom of that series of questions, the form requests full particulars for any "yes" answer and lists the type of information requested, only a portion of which is legible on the copy of the form admitted in evidence. On this portion of the application, Respondent wrote "Martin County Sherifs [sic] Department." On April 14, 1992, Respondent was charged by Information in the Martin County Circuit Court, Case No. 92-352 CFA, with one count of unlawfully selling, delivering, or possessing with the intent to sell or deliver a controlled substance, cocaine. The second count alleged that Respondent unlawfully used or possessed with the intent to use drug paraphernalia, i.e., a razor blade. Respondent pled nolo contendere to count one, possession of cocaine. On December 9, 1992, the Court entered its Order Withholding Adjudication of Guilt and Placing Defendant on Drug Probation, placing Respondent on probation for a period of two years. When Respondent was completing his application for a beverage license, he went to the Department's offices in Martin County on several occasions. Department employees assisted him in completing his application. Respondent was concerned as to whether he was eligible for licensure due to the arrest which resulted in adjudication being withheld. He discussed that concern with the Department's employees in its Martin County office. The lady he spoke with did not know if Respondent could obtain a beverage license if adjudication had been withheld. She telephoned the Department's Tallahassee office regarding that question and then advised Respondent that he was not precluded from licensure. Respondent submitted certified copies of the Information and of the Order Withholding Adjudication of Guilt. The Department issued a beverage license to Respondent in May 1996, and Respondent set up his business. He entered into a lease for the business premises at a cost of $1,000 a month and spent $5,000 to $6,000 renovating the premises. He leased a big- screen T. V. at a cost of $200 a month. He purchased D. J. equipment for $8,000. He purchased inventory, hired employees, and began advertising. It costs Respondent approximately $1,800 a week to operate the business. He has a one-year contract for radio advertising and renewed the lease for his business premises for another year in May of 1997. It is the policy of the Department to determine on a case-by-case basis whether a person who has a criminal history should be given a license. The Department does issue licenses to persons who have been charged with a crime, have pled nolo contendere to those charges, and have had adjudication withheld and been placed on probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered finding Respondent not guilty of the allegations against him and dismissing the notice of Administrative Action. DONE AND ENTERED this 12th day of September, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1997. COPIES FURNISHED: Leslie Anderson-Adams, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Iola Mosley, Esquire Whitfield & Mosley, P.A. Post Office Box 34 West Palm Beach, Florida 33402 Lt. Bob M. Young 800 Virginia Avenue, Suite 7 Fort Pierce, Florida 34982 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Richard Boyd, Director Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399
