The Issue The issue for consideration at the hearing was whether Respondent's alcoholic beverage license issued by the State of Florida should be disciplined because of the misconduct alleged in the various charges listed in the Notice to Show Cause filed in this case.
Findings Of Fact At all times pertinent to the issues herein, Petitioner held Florida 2- COP alcoholic beverage license number 26-2036, for his establishment, known as the Dynasty, located at 140 Soutel Drive, Jacksonville, Florida. This license was for the sale and consumption on premises of alcoholic beverages only. In addition, a license was issued by the City of Jacksonville to the Continental Club, c/o Grady Stroy, to operate a dance hall and night club at the same address. Respondent did not have a restaurant license or a license to operate any type of public food service establishment during the time in question. On February 25, 1983, Respondent entered into an agreement in writing with three other individuals, Grady Stroy, John Gibson, and Bobby Wade, whereby each of these latter three would invest with Respondent for an equal partnership in the Continental Club. Thereafter, in April 1983, Respondent officially changed the name of his club from Dynasty to Continental Club. In reality, all three outside partners, Stroy, Gibson, and Wade, each invested at lest $3,000.00. At no time prior to the incidents involved in this hearing, did Respondent disclose to DABT that those three individuals had an interest in his beverage license nor did he notify Petitioner that the name of the club where his license was being used had been changed from Dynasty to the Continental Club. Sometime after June 1983 and the incidents described herein, Respondent applied for a transfer of his license from himself along to himself and his above-named partners. For reasons not pertinent to this hearing, this application was denied. On June 26, 1983, Deborah Powell, in response to a citizen's complaint that alcoholic beverages were being improperly sold on Sunday, entered the Respondent's establishment in an undercover capacity. She observed a table at the door at which admission charges were being collected, and when she got inside, she saw many people who she thought were underage being served what, to her, appeared to be alcoholic beverages. There is no evidence, however, that anyone under the authorized drinking age was drinking alcoholic beverages. Those she looked for food being served and for some means of food preparation there, she found none in evidence. All she could find was a jar of sausages, a bun warmer, and some potato chips. Section 412.402 of the Ordinance Code of the City of Jacksonville, Florida, in effect on June 26, 1983, a Sunday, permits the sale of alcoholic beverages for consumption on the premises only in motels or hotels having 100 or more guest rooms; properly licensed restaurants; airport lounges; fish camps; and private clubs. Respondent's establishment does not fall within any of the above permitted categories. At approximately 9:30 that same night, other officers of the Sheriff's vice squad accompanied by DABT agents entered Respondent's club. When Officer Hall entered the crowded bar, he had the lights turned up and he and other officers began checking the driver's licenses of the patrons to insure they were of age. To do this, they set up a station at the door and had the patrons come out one by one. A check of the driver's license of each patron revealed 20 who were underage. These individuals' names, addresses, and dates of birth were recorded by Officers Hall and another. The minors in the club at the time, who are listed in the charges pertinent to this hearing are: (1) Loraine Doles DOB-Sep 19, '65 age 17 (2) Frederick A. Hayes DOB-Nov 18, '65 age 17 (3) Terry L. Jones DOB-Mar 18, '65 age 17 (4) Jocelyn F. Prince DOB-Mar 15, '66 age 17 (5) Irene D. Reed DOB-Jul 10, '66 age 16 (6) Yolanda D. Williams DOB-Jul 24, '65 age 17 (7) Arabella Washington DOB-May 25, '67 age 16 (8) Sandra D. Hodges DOB-Nov 9, '65 age 17 (9) Ava M. Gardener DOB-Aug 11, '65 age 16 In sworn written statements made to agent Lachman on July 7 and 8, 1983, in Jacksonville, all admitted to being in Respondent's establishment on June 26, 1983, but all deny purchasing or consuming alcoholic beverages while there. None was asked for identification or proof of age before being admitted. Respondent was present at the club at the time all this took place. In a sworn voluntary written statement to agent Lachman on June 28, 1983, Respondent admitted that at the pertinent time in question he had a partnership with Stroy, Gibson, and Wade; that he had a dance hall license to operate his club issued by the city; that he did not have a restaurant license nor did he have the appropriate food preparation and serving equipment to permit him to lawfully sell alcoholic beverages on Sunday; and, that at the time in question, there were 16 to 20 persons under the age of 18 in the lounge. This statement was objected to at the hearing by Respondent's counsel who contended that because Respondent was not given a proper warning of his rights to counsel and against self incrimination prior to making it, it was not admissible at the hearing. The statement, on its fact, reflects its voluntary nature and Mr. Lachman testified that while he did not fully advise Mr. Cobb of his right to remain silent, he did advise him that he could voluntarily make a statement. Full advice of a nature sufficient to support admission of an inculpatory statement in a criminal trial is not required to render such a statement admissible in an administrative hearing such as this. As an admission against interest, it is an exception to the rule excluding hearsay evidence and is admissible. It is corroborated as to the presence in the club of underage individuals by the written statements of those individuals which though themselves hearsay evidence, are admissible to explain or corroborate other admissible evidence such as here. In any case, Respondent offered no evidence to contradict or rebut any of the evidence offered by the Petitioner.
Recommendation In light of the fact that this series of incidents constitutes the first recorded or reported instance of disciplinary action, severe penalty is not indicated. Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Respondent, Mose Cobb, Jr., be fined $250.00 for each of the twelve violations established, for a total of $3,000.00, and that his 2- COP alcoholic beverage license, number 26-2036, be suspended for six months. DONE AND ENTERED this 13th day of November 1984 in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November 1984. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Courtney Johnson, Esquire 215 Washington Street Jacksonville, Florida 32202 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco, Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Respondent violated various provisions of Beverage Law and, if so, what disciplinary action against the licensee is appropriate.
Findings Of Fact Robert A. and Geraldine Geddes, d/b/a Crystal Bar, hold beverage license number 61-00040, Series 4-COP and have held this license for 36 years. Although the licensees still actively supervise the overall operation of the bar and are at the bar on a daily basis, their visits are usually during daylight hours and Robert Geddes usually departs the bar around 7 P.M.. In 1980, active supervision of the bar was turned over to Kurt Geddes, the son of the licensees. Kurt Geddes is the manager of the bar, does the hiring and firing, is on the premises when a shift of bartenders occurs, but normally leaves the bar around 8 or 9 P.M.. Sometimes he remains on the premises until closing time (2 a.m.), but that is rare. In the absence of Kurt Geddes, the barmaid is in charge. On Saturday night and other "big nights" two barmaids are on duty; and on other nights only one barmaid is on duty. Kurt Geddes spends approximately 60 hours per week at the bar. Crystal Bar is considered by many patrons to be a family bar, frequented by both younger patrons and middle-aged patrons. The latter frequently come in around 6 p.m. and usually leave by 9 p.m., but occasionally remain until 11 p.m. During the period from early September 1990 through mid-October 1990, Petitioner conducted investigations in several bars in Pasco County, including the Crystal Bar. Undercover investigators Randy West, Anthony Drinkwater, Betty Warner and Jeanine Williams visited the Crystal Bar on divers occasions during this period, and on several occasions purchased cocaine and/or marijuana. Anthony Drinkwater was in the Crystal Bar several times in September and October. During these times, he witnessed no drug transactions on the premises or outside the premises. Randy West was present on the licensed premises September 9, 10, 11 and seven other times during the investigation. Normally he was accompanied by a confidential informant, and agent Drinkwater. On September 11, the confidential informant, who had engaged a patron of the bar in conversation, advised West that the patron had marijuana to sell. West approached the patron, Michael Clayburger, and exited the bar with Clayburger from whom he purchased marijuana in the parking lot outside the bar. During the times West was in the licensed premises, he saw no employee involved in any drug transaction, nor could he purchase marijuana papers from any employee or obtain from the employee a source from whom such rolling paper could be acquired. Jeanine Williams, the youngest of the Department's investigators, was involved in the most purchases. She first entered the bar on September 8, 1990, with Betty Warner, who has been an investigator with Petitioner for approximately ten years. On September 10, 1990, Williams witnessed the purchase of marijuana by agent West outside the bar. On September 11, 1990, Williams engaged in conversation with a patron "Dennis" and inquired about the purchase of crack. After making several phone calls, Dennis told Williams he could get crack for her, and she gave him $20. Whereupon, he left the bar and did not return. Another female patron who had observed the transaction between Dennis and Williams returned to the bar and told Williams she had been ripped off. On September 13, 1990, while in the bar, Williams engaged in conversation with Donnie, a steady patron of the bar who also, on occasion, brought up ice and beer to stock the coolers for the barmaids. During this time, they discussed a 50 pound marijuana deal Donnie was contemplating, and Williams overhead several patrons ask Donnie for a joint. On September 14, 1990, while in the bar, Williams was told by Donnie that he had given someone $500 for one-half ounce of cocaine and was waiting for it to be delivered to him. Williams and Donnie were sitting at the bar, and when Williams told Donnie she would like to purchase one-half gram, Donnie told her to keep her voice down because the bar manager, Kurt Geddes, who was in the vicinity, might overhear her. Later she gave Donnie $40 for cocaine which was delivered in the bar, but out of the presence of any employee of the bar. On September 15, 1990, Williams made purchases of cocaine through Donnie from a patron named Joe, and also from Tom, another regular patron of the bar who also helped with stocking the beer cooler. On September 20, 1990, Williams while in the bar, discussed with Tom a $30,000 pot deal Tom was considering with Donnie, but backed off because he was afraid it was a rip off. On September 21, 1990, Williams, was again in the bar pursuing the investigation when she was approached by Tom and told that he was going out for cocaine because so many wanted it. She later observed agent Warren making a purchase from Tom. On September 23, 1990, Williams again purchased cocaine from Tom in the bar. On September 26, 1990, she purchased cocaine from another patron identified as Joe Cochrane. On September 28, 1990, Williams purchased one gram of cocaine from Tom for $80 which was delivered in the bar. On October 6, 1990, Williams approached Donnie to buy cocaine, and he took her outside to the parking lot where the transaction took place. On October 7, 1990, she witnessed a cocaine transaction between Tom and agent Warner. On October 9, 1990, Williams purchased cocaine from Tom on the licensed premises. On October 17, 1990, she purchased cocaine from a patron named Orville inside the crowded noisy bar. Finally, on October 18, 1990, she purchased one-half gram of cocaine from Donnie just outside the front door of the licensed premises. Agent Warner was in the Crystal Bar each time agent Williams made a purchase and positioned herself to observe those purchases. On September 11, 1990, Warner went outside the bar with a patron and simulated snorting coke in his car. On September 12, 1990, she observed Donnie restock the bar, sweep up a broken glass, and bring in ice for the bar. On September 26, 1990, she purchased marijuana from Joe Cochrane, which was delivered outside the bar. On September 27, 1990, Warner purchased cocaine from Joe Cochrane, again delivered outside the bar. On several occasions when beverage agents purchased controlled substances in the bar, the purchase was openly displayed to other patrons of the bar and could have been seen by the barmaid. However, no one ever told these agents to remove these drugs from the premises. In openly displaying those controlled substances, the agent's were "over acting" to publicize as much as possible that they had purchased and were displaying controlled substances. Of those purchases made inside the bar, six were from Tom, two were from Donnie and one each from Orville and Joe Cochrane. No witness observed any employee involved in any drug transaction. The license holders, Robert and Geraldine Geddes visit the bar on a daily basis, she to maintain the books and records, and he to socialize a few hours before leaving around 7 p.m. The daily operation of the bar was turned over to their son, Kurt Geddes, in 1980, although they are consulted and approve all major decisions. As manager, Kurt Geddes instructs employees in their duties. He has established a well known policy that any employee involved in any drug transaction is immediately fired, that if any drug transactions on the premises are observed, the patrons are to be directed to leave immediately, and the police are called if they do not leave. These policies are not written out and published in an "employee's manual" but are discussed with all new employees, and intermittent meetings are held with employees to reiterate these policies. Kurt Geddes testified that he was aware of Donnie's previous conviction for dealing drugs, but that Donnie had assured him that he (Donnie) had learned his lesson and was totally removed from drugs. He never saw any evidence of drugs being used or sold in the bar, nor had anyone advised him that drug dealings were being negotiated on the licensed premises. He once saw a patron with marijuana in the bar and told him to leave. The Geddes are members of the Independent Beverage Dealers Association and have been for many years. They have attended seminars offered by this Association. Kurt Geddes was unaware of the Tampa DABT's Awareness Program for licensees, but is aware of the Responsible Vendor's Program. Two barmaids employed by Respondent testified that they were aware of the policy regarding drugs in the bar and that they never saw any employee or patron use or sell drugs in the bar. Four regular customers of the Crystal Bar who consider themselves friends of the licensee testified that they visit the bar frequently, but usually leave at an early hour, and they have never seen any drugs sold or used in the bar. They consider the bar to be a family bar where friends congregate. The patrons consist of both an older group and a younger group, and there is not a lot of mixing between the two groups. During this investigation, several bars were targets of the investigation, and emergency suspension orders were, at the time of this hearing, issued to two of these licensees, viz., the Crystal Bar and Quaker Bar. Both of these cases were referred to the Division of Administrative Hearings and assigned to this Hearing Officer. Before the date scheduled for hearing, the case against Quaker Bar was settled; and the Quaker Bar was allowed to reopen. The charges preferred against the Quaker Bar were similar to the charges here involved, viz., sale of controlled substances on the licensed premises. However, the allegations against the Quaker Bar included the sale of controlled substance on the premises by an employee of the Quaker Bar as well as by patrons of the bar. The only apparent difference in the licensees is that the Quaker Bar had entered into a responsible vendor's certification program which became effective January 1, 1990 (Section 561.705, Florida Statutes). This statute provides that a licensee seeking to qualify as a responsible vendor shall provide the Division with evidence of compliance with the provisions of this section. Generally, this requires a vendor to provide an approved course of instruction to its employees in alcohol and controlled substance effects, methods of dealing with customers and recognizing underage customers, requiring each employee to complete certain courses relating to alcoholic beverage operations and to complete applications requiring background information on the applicant for employment, and the posting of signs on the premises advising customers of the vendor's policies regarding drugs on the premises.
Recommendation Based upon the foregoing findings and conclusions, it is recommended that Robert A. and Geraldine Geddes, d/b/a Crystal Bar, be assessed an administrative fine of $10,000 plus investigative costs of the investigation: $1000 to Pasco County Sheriff's Office and $3800 to the Division of Alcoholic Beverages and Tobacco, and the license suspended for a period of three months. It is further recommended that the suspension be stayed for a probationary period of one year under such terms and conditions as the Division deems appropriate, and upon satisfactory completion of the probationary period, the license be restored to its original status and condition. It is further recommended that this penalty not exceed the penalty administered to the Quaker Bar. ENTERED this 26 day of November, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26 day of November, 1990. APPENDIX Treatment Accorded Petitioner's proposed findings: 1-2. Accepted. 3. First part accepted, except marijuana purchased for $20, vice $23. Remainder of finding rejected as recitation of testimony of witness rather than finding of fact. Other parts rejected as uncorroborated hearsay. Last sentence incomplete. 5-17. Accepted. 18. Accepted, except for penultimate sentence regarding transaction observed by barmaid. The witness testified only to what the barmaid could have seen. 19-22. Accepted. 23. Generally accepted, however, the testimony of Investigator Maggio was that the marijuana fell out of Investigator Warner's bag, and the barmaid smiled when she saw it. 24-26. Accepted. 27-28. Rejected as recitation of testimony of witnesses rather than findings of fact. Treatment accorded Respondent's proposed findings: 1-13. Accepted. Rejected as unsupported by the evidence. None of the patrons selling controlled substances testified to where the patron told the investigator to speak more softly so as not to be overheard by Kurt Geddes. Second sentence rejected. Agent Williams testified that she observed another patron purchase cocaine. 16-17. Rejected. Petitioner's investigators testified they overreacted to make their purchase of drugs in the bar more obvious. 18-21. Accepted. 22. Accepted only insofar as no employee who testified in these proceedings saw any drug transaction on the licensed premises. 23-24. Accepted. 25. Accepted insofar as no patron of the bar who testified in these proceedings observed drug use or saw drug transactions on the licensed premises. 26-39. Accepted. First sentence rejected. Kurt Geddes held sporadic meetings with employees to discuss compliance with state beverage laws. First sentence accepted insofar as only each employee who testified in the proceedings is included. 42-44. Accepted. Rejected as a fact; accepted as a conclusion. Accepted. COPIES FURNISHED: Robin L. Suarez, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 Peter P. Murnaghan, Esquire Jeanne Maguire, Esquire Post Office Box 0959 Tampa, FL 33601-0959 Leonard Ivey Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 Joseph Sole Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007
The Issue Should Respondent's alcoholic beverage license, number 61-00005, 2-COP be revoked, suspended or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: DABT is the division within the Department of Business and Professional Regulation charged with the responsibility of administering and enforcing the Beverage Law of the State of Florida. At all times material to this proceeding, Respondent held a series 2- COP alcoholic beverage license, number 61-00005, authorizing the Respondent to sell only beer and wine on the premises of East Side Tavern (Tavern), located on Cummer Road, 1 mile east of Highway 301, Lacoochee, Pasco County, Florida. Around 12:30 a.m. on May 16, 1994, Special Agents Ashley Murray and Keith B. Hamilton went to the Tavern in an undercover capacity. This undercover activity was initiated due to a request of the Pasco County Sheriff's Office (PCSO) concerning allegations of drugs sales on the premises of the Tavern. Agent Murray has been a sworn law enforcement officer for five and one- half years. Agent Murray completed a two-week basic Drug Enforcement Administration (DEA) drug school regarding the identification, sale and the manner of use of drugs. Agent Murray also completed a three-day undercover DEA school. During her five and one-half years as a sworn law enforcement officer, Agent Murray has been involved in at least 100 occasions where drugs were being sold or used. Agent Hamilton has been a law enforcement officer since 1981. During Agent Hamilton's tenure as a law enforcement officer he has been involved in numerous training classes regarding the identification, sale and manner of use of drugs, including courses taught by DEA. Agent Hamilton has been trained to recognize the scent of burning marijuana. Agent Hamilton has been in at least 70 different establishments where drugs, including marijuana, were being sold and used. As the agents approached the Tavern, they noticed a large number of people (100-150) standing in front of the Tavern and in a vacant lot across the road from the Tavern. Additionally, cars were parked along Cummer Road in front of the Tavern. The agents also testified that a "lot" of the people standing outside appeared to be "young". Upon entering the Tavern, the agents noticed that no one was checking identification at the door. The Tavern consists of two rooms divided by wall with a door between the two rooms. The bar is located in one room. The second room is a disco/dance area. Based on the description of the inside of the Tavern, a person behind the bar would not have clear view of all of the disco/dance area. On May 16, 1994, the Tavern was crowded with customers. Agent Murray saw what appeared to her to be a "lot of really young kids" in the crowd. Upon entering the Tavern on May 16, 1994, Agent Hamilton detected a scent in the air that resembled, based on his training and experience, the odor of burning marijuana. Agent Hamilton did not actually see anyone smoking marijuana inside the Tavern. Agent Murray also noticed, both on the inside of the Tavern in the dance floor area and outside the Tavern by the entrance, what appeared to her to be a hand-to-hand exchange between customers of what appeared to be money for something that she could not identify. As Agent Murray left the Tavern she noticed what appeared to her, based on experience and training, to be customers passing and maybe smoking marijuana. However, Agent Murray did not actually see the marijuana or the customers actually smoking marijuana. Agent Murray also noticed a customer with a closed fist going to another customer and placing the closed fist over an open palm and then the release of the closed fist. Based on her training and experience, this appeared to Agent Murray to be an exchange of crack cocaine between the customers. Agent Murray did not see or confirm that any crack cocaine was actually being exchanged. Upon reentering the Tavern, the agents were together at the bar and saw a black female customer place a large bottle of liquid on top of the bar close to where they were sitting. The customer ordered something from the bar and left with the bottle. Agent Murray testified that by observing the label on the bottle she was able to identify the liquid as scotch whiskey. Agent Hamilton testified that he observed the same black female with a bottle of "alcohol, distilled spirits" and further identified the liquid as a "bottle of gin". Neither Agent Murray nor Agent Hamilton testified that the bottle bore the manufacturer's insignia, name or trademark. Both agents were apparently close enough to the customer to be able to observe the label. Neither agent smelled or tasted the contents of the bottle. For reasons of their own, the agents did not seize the bottle. Agent Murray thought she saw the Respondent behind the bar on that day. Agent Hamilton referred to the person behind the bar that day as the clerk but did not identify the Respondent as being the clerk on May 16, 1994. On August 8, 1994, ten DABT agents and 20 deputies from the PCSO conducted a walk-through inspection (inspection) of the Tavern. The agents and deputies were dressed in such attire as to be visibly recognized as law enforcement officers. During the inspection on August 8, 1994, DABT Sergeant Allen Ray observed an individual inside the Tavern in possession of a cup of beer, which individual Sergeant Ray suspected of being under 21 years of age. Sergeant Ray testified that this person identified herself as Tamieka Ranell Shaw and that Shaw advised him she was under 21 years of age. Sergeant Ray then took Shaw outside and placed her in the custody of Agent Hamilton for processing. Agent Hamilton testified that Shaw advised him that she was 16 years of age. At this time, Shaw did not have a driver's license or any other type of identification in her possession that would verify her age or date of birth. Furthermore, Shaw was not identified by a family member or anyone else having personal knowledge of Shaw's age or date of birth. Neither Shaw nor anyone else having personal knowledge of Shaw's age testified at the hearing. Furthermore, DABT did not present any documentary evidence of Shaw's age at the hearing. DABT failed to prove that Shaw was under 21 years of age on August 8, 1994. There was no evidence that Respondent or any person working for Respondent had sold, given, served or permitted the beer to be served to Shaw. During the August 8, 1994, inspection, DABT Sergeant John Allen observed three individuals in the Tavern that he suspected of being under 21 years of age that were in possession of what Sergeant Allen considered to be an alcoholic beverage. Sergeant Allen escorted each of these individuals out of the Tavern separately. None of these individuals had a drivers license or any other type of identification to verify their age or date of birth. Sergeant Allen testified that each of the individuals identified themselves and admitted to being under the age of 21 years. However, one of the individuals managed to leave the premises before any other identification could be made. Sergeant Allen testified that Ronald Adair, one of the alleged underage customers referred to in Finding of Fact 15 above, was identified by his mother as being under 21 years of age in a telephone conversation with Sergeant Allen on August 8, 1994. However, neither Adair, his mother nor anyone else having personal knowledge of Adair's age was present at the hearing to testify as to Adair's age. Furthermore, DABT did not present any type of documentary evidence of Adair's age at the hearing. DABT failed to prove that Adair was under 21 years of age on August 8, 1994. The person identifying himself as Marlon Inmon, another of the alleged underage customers referred to Finding of Fact 15 above, was alleged to have been in possession of an alcoholic beverage inside the Tavern on August 8, 1994. Sergeant Allen testified that he talked to a relative of Inmon's over the telephone and that this relative identified Inmon and advised Sgt. Allen that Inmon was under 21 years of age. However, this person did not talk to or see the person claiming to be Inmon. Neither Inmon nor the person identifying Inmon over the telephone or anyone else with personal knowledge of Inmon's age testified at the hearing. Furthermore, DABT did not present any documentary evidence of Inmon's age at the hearing. DABT failed to prove that Inmon was under 21 years of age on August 8, 1994. The third alleged underage person referred to in Finding of Fact 15 above in possession of an alcoholic beverage on August 8, 1994, was never identified by anyone before he left the premises. Neither this person nor anyone else having personal knowledge of this person's age testified at the hearing as to this person's age. Furthermore, DABT did not present any documentary evidence as to this person's age. DABT has failed to prove that this person was under 21 years of age on August 8, 1994. During the walk-through inspection on August 8, 1994, DABT Special Agent Michael Freese seized a 1.75 liter of Seagrams gin, alcoholic beverage. The gin was in plain view on a table in the dance floor area. In attempting to seize the gin, Agent Freese had a confrontation with a customer who claimed the gin belonged to him. There was no evidence that the gin had been purchased on the premises. This gin is not the type of alcoholic beverage allowed to be possessed by the licensee or anyone else on the licensed premises of a licensee holding only a 2-COP alcoholic beverage license such as Respondent. The Respondent was present at the Tavern on August 8, 1994, and either directly observed, or was in such a position at the bar to have easily detected the presence of the unauthorized alcoholic beverage on the table. Also during the walk-through inspection on August 8, 1994, Agent Freese observed a small plastic bag containing a substance that resembled marijuana on the floor behind one of the speakers around the "DJ" booth. Agent Freese seized the bag and identified it as marijuana by sight and smell. A field test conducted by Agent Freese indicated that the substance was marijuana. However, Agent Freese testified that the field test may not be 100 percent accurate. No laboratory analysis was made of the substance suspected of being marijuana. DABT failed to prove that the substance was in fact marijuana. Likewise, DABT has failed to prove that Stewart was aware of alleged marijuana being present on the premises. During the walk-through inspection on August 8, 1994, Lieutenant Bruce Schmelter, PCSO, seized a loaded 22-caliber revolver that was protruding from beneath one of the speakers near the "DJ" booth. The revolver was turned over to DABT. However, DABT failed to prove that Stewart was aware of the revolver being present on the premises. After the walk-through inspection on August 8, 1994, Sergeant Allen gave Respondent official notice of the problems encountered during the inspection. On September 18, 1994, a second walk-through inspection (second inspection) was conducted at the Tavern by ten DABT agents and 25 PCSO deputies. The DABT agents and the deputies from the PCSO were dressed in such attire as to be visibly recognized as law enforcement officers. During the second inspection, agents Murray and Aikens advised Respondent that they intended to go behind the bar to secure that area. After advising Stewart of their intended action, there was a confrontation between Stewart and the agents wherein Stewart's daughter became involved. The agents became concerned because of the crowd and notified Sergeant Ray of the problem. Sergeant Ray advised Stewart of why they were there and that DABT agents had the authority to secure the area behind the bar. After this explanation, Respondent allowed Sergeant Ray and another DABT agent behind the bar without further incident. After the incident at the bar during the second inspection, Agents Murray and Aikens seized a bottle of Seagrams Extra Dry Gin, an alcoholic beverage, which they found on the floor against the wall in the area of the bar inside the Tavern. This gin is not the type of alcoholic beverage allowed to be possessed by the licensee or anyone else on or at the licensed premises of a licensee holding a 2-COP alcoholic beverage license such as Respondent. The Respondent was present in the Tavern on September 18, 1994, and either directly observed, or was in such a position as to have easily detected the presence of the unauthorized alcoholic beverage. During the second inspection, Agent Hamilton observed an individual in possession of a bottle of beer which individual he suspected of being under 21 years of age. Agent Hamilton testified that the individual was identified as Corey Anthony Owens, 20 years of age. Neither Owens nor anyone else having personal knowledge of Owens' age were present to testify at the hearing. Furthermore, DABT did not present any documentary evidence as to Owens' age. Agent Hamilton testified that Owens advised him that he had purchased the beer in the Tavern from a black male behind the bar. DABT presented no other evidence that the beer had been purchased in the Tavern. Although DABT has proven that Owens did have beer in his possession while in the Tavern on September 18, 1994, DABT failed to prove that Owens purchased or was served or given the beer in his possession on September 18, 1994, by Stewart or his servant, agent or employee. Furthermore, DABT failed to prove that Owens was under 21 years of age on September 18, 1994. On December 7, 1994, Captain Bruce Ashley met with Stewart at Stewart's request to discuss the Administrative Action that had been served on Stewart. At Stewart's request, Captain Ashley marked an X by the first box on the Request For Hearing which states as follows: "I dispute issues of fact. (Please list which of the charges and counts in the Administrative Action you dispute and why)." Also at Stewart's request, Captain Ashley wrote the following: "There are facts and issues that are not true that need to be discussed. I have documents and facts to bring out about this matter." (Emphasis supplied) Below this statement Captain Ashley wrote "Written On Behalf Of Licensee By" and signed his name. Below the above underlined statement there was an X with Isaiah Stewart's signature. On December 8, 1994, Captain Ashley wrote a memorandum setting forth what Captain Ashley considered to be the conversation between he and Stewart on December 7, 1994. However, because of the circumstances under which this conversation with Respondent occurred and the conflict between the statement signed by Respondent and Captain Ashley's memorandum, the memorandum is somewhat suspect and a cause for concern, and thereby lacks credibility. DABT's exhibit 4 consist of computer records from the PCSO listing the calls that the PCSO responded to around the Tavern from May 12, 1993 through June 29, 1994. Using these computer records DABT summarized the type of calls and the total number of each type of call received between February, 1994 and June 29, 1994. This summary shows a total of 69 calls of various types responded to by the PCSO during the period covered by the summary. Of the 69 calls listed in the summary, 22 were calls to backup units which apparently were backup for some of the other 47 calls. Ten calls were to assist a sick person. The balance of the calls were as follows: 2-affray/incite or encourage riot; 1- special patrol request; 1-juvenile problem; 3-miscellaneous incident; 2-field interrogation report; 4-shooting in area; 1-battery (simple); 4- disturbance(noise); 1-accident traffic; 1-illegal parking; 1-suspicious person; 3-narcotics violation; 1-throwing a deadly missile; 1-obstructing police without violence; 1-warrant arrest; 1-robbery, strong arm; 1-simple assault; 2-traffic warning; 1-aggravated assault; 1-weapons; 1-shooting into occupied dwelling; 1- battery on officer and 2-special detail. It is clear from the PCSO computer printout that the whole area around Cummer Road, not just the area around the Tavern, kept the PCSO busy responding to calls during the period in question. DABT presented no evidence as to the legitimacy of the call or if the call involved the activity of the Tavern's customers on the premises of the Tavern or the activity of someone else in the vicinity of the Tavern or what action was required upon the PCSO responding to the call. DABT failed to prove that Respondent kept or maintained a premises which was resorted to by persons who use or sell illegal drugs. DABT failed to prove that between the dates of February 1994, and September 1994, the Respondent maintained a public nuisance at his licensed premises.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law and having reviewed the penalty guidelines set forth in Rule 61A-2.022, Florida Administrative Code, it is recommended that a final order be entered finding Respondent guilty of the allegations contained in Counts 5 and 8 of the Administrative Action and for this violation that DABT assess an administrative fine in the amount of $1,000 against Respondent. It is further recommended that DABT dismiss Counts 1, 2, 3, 4, 6, 7, 9, 10 and 11 of the Administrative Action. RECOMMENDED this day 27th of September, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, 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 27th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1482 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner in this case. Petitioner's Proposed Findings of Fact. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1-3(2); 4-5(3); 6(6); 7(7); 8(8); 9(9); 10(5); 11(10); 12(4,10-11); 13(11); 14(12); 15(13); 17-18(15); 21-22(19); 24-25(21); 26(22); 27(23); 28-29(24); 30(25); 32(27); and 34(28). Proposed finding of fact 16 is adopted in Finding of Fact 14, except that portion regarding the age of Shaw, which is rejected. Proposed finding of fact 19 is adopted in Finding of Fact 16, except that portion regarding the age of Adair, which is rejected. Proposed finding of fact 20 is adopted in Finding of Fact 17, except that portion regarding the age of Inmon, which is rejected. Proposed finding of Fact 23 is adopted in Finding of Fact 19, except that the field test did not absolutely prove that the substance was in fact marijuana. Proposed finding of fact 31 is adopted in Finding of Fact 26, except that portion regarding the age of Owens and that Owens purchased the beer in the Tavern, which is rejected. Proposed finding of fact 33 is rejected as not being supported by competent, substantial evidence in the record. The Respondent elected not file any proposed findings of fact. COPIES FURNISHED: John J. Harris, Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda L. Goodgame, Esquire General Counsel Department of Business Professional Regulations Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard A. Grumberg, Esquire Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Isaiah Stewart, Pro se Post Office Box 429 Lacoochie Florida 33537
The Issue The issue is whether Respondent violated Section 562.02 and Subsection 561.29(1), Florida Statutes (2007), by possessing on May 3, 2008, four bottles of alcohol that Respondent is not licensed to possess on the licensed premises.
Findings Of Fact Petitioner is the agency responsible for regulating alcoholic beverage licenses in the state. Respondent is licensed to possess and sell beer and wine on the premises pursuant to License Number 46-05556, Series 2COP. A random inspection of the licensed premises on May 3, 2008, found four bottles of alcohol that Respondent is not licensed to possess on the premises. The alcohol consisted of: one, 1.75 liter bottle of Kettle One Vodka; two, 750 milliliter bottles of X-Rated Vodka; one, 1 liter bottle of Captain Morgan Rum; and one, 750 milliliter bottle of Tequila 1800 Silver. Petitioner requires each licensee to file a drawing of the licensed premises that, among other things, identifies the location of personal items kept on the premises. Respondent did not identify the bottles of alcohol described in the preceding paragraph as personal items on the drawing that Respondent filed with Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the acts alleged and violations charged in the Administrative Action and imposing an administrative fine of $1,000.00. DONE AND ENTERED this 5th day of March, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2009. COPIES FURNISHED: Michael J. Wheeler, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32303 Marcus Beaubrun Sushiyaki, Inc., d/b/a Sushiyaki 1306 Cape Coral Parkway East Cape Coral, Florida 33904 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Cynthia Hill, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues are as follows: (a) whether Respondent violated Sections 562.11(1)(a) and 561.29(1)(a), Florida Statutes (2003), by selling an alcoholic beverage to Petitioner's undercover investigative aide on January 15, 2004; and (b) if so, what penalty, if any, should be imposed.
Findings Of Fact Respondent holds License No. BEV2601975, Series 1-APS. The license authorizes Respondent to sell beer and wine at the licensed premises, which is located at 1762 Sheridan Street, Jacksonville, Florida. Respondent is the sole owner of Express Food Store (the store), a relatively small convenience store. He has been licensed to sell beer and wine at the store since 1982. In the approximately 22 years that Respondent has owned and operated the store, he has no knowledge of an incident where he personally sold alcohol to an underage person prior to this case. Respondent has a personal and business rule not to sell alcohol to underaged persons. He usually checks an individual's identification before selling him or her alcohol and tobacco because underage persons frequently attempt to purchase these products from the store. He trains his employees not to sell alcohol to underaged persons. He posted Budweiser and Miller Lite signs in the store that say "We I.D." On January 15, 2004, Petitioner performed undercover compliance checks of licensed establishments, which were placed on a list by random sample. The store was on the list to be checked. At approximately 6:30 p.m., Respondent was at the store working behind the checkout counter in the capacity of owner and cashier. The store was relatively busy with several customers. Respondent was waiting on the customers, and in between customers, he was training a new employee, who was having some difficulty operating the lottery machine located near the cash register. Respondent was eager to keep the customers moving as fast as he could move them. Jerry Horky acted as Petitioner's underage operative/investigative aide on January 15, 2004. Mr. Horky, who was born on March 28, 1984, was 19-years-old. Mr. Horky was appropriately groomed and dressed. In other words, he was clean-shaven and not dressed up or down, but was wearing jeans and a shirt with a collar. Petitioner's agents took a picture of Mr. Horky on January 15, 2004. The copy of Mr. Horky's picture that Respondent offered in evidence is of a very poor quality. However, at the time of the hearing, Mr. Horky did not have the appearance of someone over the age of 21. To the contrary, he was average in stature and decidedly youthful in appearance. Mr. Horky, Agent Raymon Arguelles, and Agent Elizabeth Anno drove to the store and parked in front so that they could see inside the store. Petitioner's agents checked to make sure that Mr. Horky had his driver's license showing his correct age and that he did not have any false identification. The agents then instructed Mr. Horky to attempt to buy an alcoholic beverage from the store using funds provided by Petitioner. The agents specifically told Mr. Horky to answer truthfully if anyone inquired about his age. Following the instructions of Petitioner's agents, Mr. Horky entered the store, walked to the beer cooler, retrieved one 12-ounce Budweiser beer, and walked to the counter to wait his turn in line behind at least one customer. Respondent took care of the customer in front of Mr. Horky. Respondent then looked at Mr. Horky and asked if he could help him. Without saying a word, Mr. Horky placed the can of beer on the counter and handed Respondent the money to pay for it. Respondent accepted the money, selling Mr. Horky the beer. Respondent did not ask Mr. Horky's age or check his identification. Mr. Horky exited the store and gave the can of beer to Petitioner's agents, who had witnessed the transaction from their parked car. Petitioner's agents waited until all the customers left the store. Then they entered the store and spoke with Respondent. As soon as they identified themselves, Respondent asked if Mr. Horky was underaged. When the agents responded affirmatively, Respondent stated that he did not check Mr. Horky's identification because he thought Mr. Horky looked old enough. Agent Anno told Respondent how surprised she was that he had sold Mr. Horky a beer because: (a) She remembered him from the time that she first began working for Petitioner in 1992 when one of Respondent's employees was cited on two occasions for selling alcohol to an underaged person; (b) Petitioner had not received a complaint that Respondent was violating the beverage laws; and (c) Petitioner had never cited Respondent for personally violating the beverage laws. Mr. Horky worked for Petitioner as an underage investigative aide from the age of 16 until he reached age 20. During that period of time, Mr. Horky participated in 754 compliance check operations. In 504 of the operations, the licensed establishments refused to sell him alcohol. Approximately 250 licensed establishments sold him alcohol.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Petitioner enter a final order dismissing the charges against Respondent DONE AND ENTERED this 3rd day of November, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 3rd of November, 2004. COPIES FURNISHED: Sorin Ardelean, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Captain Cynthia C. Britt Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 600 Jacksonville, Florida 32211 Tonia Yazgi, Esquire 3123 Beach Boulevard Jacksonville, Florida 32207 Jack Tuter, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Respondent is a Florida corporation doing business in Tampa, Florida, and is the bolder of alcoholic beverage license number 39-482, 4-COP. Respondent's licensed premises are located at 2309 North Dale Mabry Highway, Tampa, Hillsborough County, Florida. The license was suspended by Petitioner's Emergency Order of Suspension issued July 22, 1982. On March 25, 1982, Beverage Officer Freese entered Respondent's licensed premises in an undercover capacity after paying a $1 cover charge. Freese proceeded to a circular room located upstairs in the licensed premises. This room had a small bar in the center, a small dance stage in front of the juke box, and bench-type seats located around the perimeter of the room. Shortly after entering the licensed premises, Freese was approached by a female dancer known as Diane. She sat down next to Freese without invitation and asked Freese if she could call the waitress over. Upon inquiry by Freese, Diane informed him that the reason for calling the waitress was because Freese had a drink and she did not. When Freese asked if that meant she wanted a drink, her reply was yes, and she thereafter ordered a drink. The drink was later served and Freese was charged $4 (Count 1). At approximately 10:45 p.m. on March 25, 1982, a female dancer known as Caryl seated herself next to Freese without invitation and inquired, "Who is going to buy me a drink?" After Freese agreed to buy her a drink, she stated that she was not supposed to solicit drinks because the premises had lost its license for such action in the past. Caryl ordered her drink from a waitress who returned with the drink, placed it in front of her, and charged Freese $4 (Count 2). At approximately 11:55 p.m. on March 25, 1982, a female dancer known as Mercedes was seated next to Freese and asked him if she could call the waitress over. When Freese asked why, the dancer replied that she needed a certain brand of mixed drink, and called the waitress to the table. She then ordered a drink for herself, which the waitress brought and placed in front of Mercedes. The waitress charged Freese $4 for the drink (Count 3). On March 26, 1982, Freese and a Confidential Informant entered the licensed premises in an undercover capacity. After paying the $1 cover charge they proceeded to the same circular room as on the previous occasion. At approximately 9:45 p.m. Mercedes again seated herself next to Freese and remarked that both she and Freese were dry and that she would call the waitress over. When asked by Freese if that meant she wanted him to buy her a drink, she summoned a waitress named Darlene to the table and ordered a drink for herself. Upon returning to the table, the waitress placed Mercedes' drink in front of her and charged Freese for the drink. The total charge for the two drinks was $6, and Mercedes later informed Freese that all of the dancers got doubles when ordering drinks (Count 4). On March 31, 1982, Officer Freese and the Confidential Informant again entered the licensed premises in an undercover capacity. After paying the cover charge of $1 each, Officer Freese again proceeded to the upstairs circular room of the lounge. At approximately 8:25 p.m., the dancer Mercedes again joined Officer Freese at the table. After paying Mercedes $5 for dancing, Mercedes asked Freese if she could call the waitress over. Freese replied, "It's up to you," and Mercedes called a waitress known as Marty to the table and ordered a mixed drink for herself. Upon delivering the drink to Mercedes, the waitress informed Freese that the cost of the drink was $4 (Count 5). At approximately 9:00 p.m. on March 31, 1982, Mercedes again asked Freese, "May I call the waitress over?" Freese replied, "It's your turn to buy." Mercedes replied that it was not her turn and ordered a mixed drink for herself from the waitress. The waitress charged Freese $6 for this drink (Count 6). At approximately 9:40 p.m. on March 31, 1982, Mercedes again asked Freese if she could call the waitress over. After Freese told her that it was her turn to buy this time, Mercedes replied that it was his turn to buy. She again called the waitress over and ordered a drink for which Freese was charged $4 (Count 7) At approximately 11:00 p.m. on March 31, 1982, Freese was in the presence of two dancers, Mercedes and another dancer known as Cheryl. At this time, Mercedes again asked Freese if she could call the waitress over. After Freese asked Mercedes if she was buying this time, she replied, "I do the dancing." In response to this remark, Freese stated, "I guess that means that I pay for all the drinks," to which Mercedes indicated yes. Mercedes ordered a drink from the waitress Marty, who returned with the drink, placed it in front of Mercedes and charged Freese for the drink (Count 8). On April 7, 1982, Officer Freese entered the licensed premises with a Confidential Informant in an undercover capacity. Upon entering the licensed premises, they proceeded to the circular bar upstairs and seated themselves at a small table. At approximately 8:45 p.m., the dancer Mercedes, while seated at the table with Freese, asked him if she could order another drink. She ordered a drink from a waitress who served her the drink and then charged Freese $4 for it (Count 9). On April 7, 1982, at approximately 9:15 p.m., the dancer known as Caryl was seated at the table with Freese. She turned to him and stated, "Mike, I need a drink." When Freese inquired as to what she had said, Caryl replied, "Will you get me a drink?" (Count 10). On April 8, 1982, Officer Freese and a Confidential Informant again entered the licensed premises and proceeded to the upstairs bar. At approximately 8:40 p.m. the female dancer known as Mercedes was seated at the table with Officer Freese. While tipping her empty glass toward Freese, Mercedes asked if she could call the waitress. She then ordered a drink for herself, which was delivered to her by the waitress who charged Freese for the drink (Count 11). At approximately 9:15 on April 5, 1952, Officer Freese and a Confidential Informant were joined by another female dancer known as Caryl, who proceeded to ask, "Who is going to buy me a drink?" While a waitress known as Darlene was standing in front of Caryl, Caryl asked Freese, "Mike, will you buy me a drink?" She then ordered a mixed drink for herself, which was delivered to her, and the waitress charged Freese for the drink (Count 12). On May 13, 1982, at approximately 11:00 p.m., Beverage Officers Freese and Hodge entered the licensed premises in an undercover capacity and proceeded upstairs to the circular room. Shortly after seating themselves, they were joined by a dancer known as Stephanie. At approximately 9:45 p.m. the officers were approached by a waitress known as Doris. Hodge ordered a beer and upon inquiry by the waitress if there would be anything else, Hodge replied in the negative. However, Stephanie stated to the waitress that she would have a mixed drink. While waiting for the drinks to be delivered, Stephanie informed Hodge that she could not ask for a drink because it would be soliciting and she could be thrown into jail for that. After paying for the drinks, Hodge made a remark as to the cost of the drinks to which Stephanie replied, "That's how the house makes its money, off the drinks, and we make ours off the lap dances. That's what this upstairs is about, drinking and dancing." (Count 13) At approximately 11:00 p.m. on May 13, 1982, Freese was approached by a dancer known as Linda, who asked if she could dance for him. While lap dancing for Freese, Linda asked, "Can I get a drink, too?" Freese asked if she wanted him to buy her a drink and she replied, "Yes, will you buy me a drink?" Linda then called the waitress, ordered a drink which was delivered to her at Freese's table, and he was charged $4 for Linda's drink (Count 14). On May 18, 1982, Beverage Officers O'Steen and Freese entered the licensed premises in an undercover capacity and proceeded to the upstairs lounge. At approximately 8:35 p.m., Freese was approached by a female dancer known as Darlene, who asked to dance for him. After informing Darlene that he did not want a dance, she asked him if he would buy her a drink. Darlene then summoned a waitress over to the table and ordered a mixed drink for herself. The waitress delivered the drink to Darlene and charged Freese for it (Count 15). At approximately 10:25 p.m. on May 18, 1982, Freese was again approached by Darlene and asked, "How about a drink?" When Freese asked Darlene if she was buying, she responded "No, you are." Darlene then summoned the waitress and ordered a drink which was delivered to her at Freese's table. Freese paid for the drink (Count 16). On May 19, 1982, Officers Hodge and Freese entered the licensed premises in an undercover capacity and proceeded to the circular lounge upstairs. At approximately 8:45 p.m., a dancer known as Diane asked Freese, "Can I call the waitress?" to which Freese replied, "Does that mean that you want me to buy you a drink?" After Diane replied affirmatively, she summoned the waitress over and ordered a drink which was later delivered to her at Freese's table. Freese was charged $4 for the drink (Count 17). On May 19, 1982, at approximately 8:55 p.m., the dancer Mercedes approached the officers' table and seated herself between them. Mercedes then asked Hodge if she could call the waitress over. She thereafter ordered a drink which was delivered to her at the officers' table by the waitress Darlene, who charged Hodge $4 for the drink (Count 18). At approximately 9:10 p.m. on May 19, 1982, Diane was still seated at the officers' table and asked Freese if she could call the waitress again. Diane then called the waitress to the table and ordered a mixed drink for which Freese was charged (Count 19). At approximately 9:50 p.m. on May 19, 1982, Diane asked Hodge "Do you want to buy me a drink now, or do you want me to wait until after I dance?" In response to this, Hodge asked Diane if she wanted him to buy her a drink, to which Diane replied, "yes." While Diane was dancing, the waitress brought her drink to the table and charged Hodge $4 for it (Count 20). On July 6, 1982, Officers Freese and Hodge again entered the licensed premises in an undercover capacity and proceeded to the upstairs lounge. At approximately 8:55 p.m., the dancer Stephanie, who was then seated at the officers' table, said to Hodge, "Will you buy me a drink?" She thereafter ordered a drink for which Hodge was charged (Count 21). At approximately 9:15 p.m. on July 6, 1982, Officers Hodge and Freese were seated in the upstairs portion of the lounge. At this time, they were accompanied by the dancers Caryl and Stephanie. During the course of a conversation, Hodge asked Freese if he was buying the next drinks, and Stephanie said, "What about me?" A waitress was present during this conversation and asked Freese if he intended to buy the dancer Caryl a drink also. Both Stephanie and Caryl each ordered mixed drinks which were delivered to the officers' table and were paid for by the officers (Count 22). At approximately 11:00 p.m. on July 6, 1982, the dancer Stephanie was seated with the officers at their table. At this time, she asked Freese, "Are you going to buy me a drink?" Upon Officer Freese replying "Yes," Stephanie ordered a mixed drink from the waitress who brought the drink to Stephanie and charged Officer Freese $4 (Count 23). On July 8, 1982, Officers Freese and Hodge entered the licensed premises in an undercover capacity and proceeded to the upstairs lounge. At approximately 7:25 p.m., they were approached by a woman known as Judy, who asked if she could join them for a drink. She then stated, "Mine only costs $2. They cost $4 for the girls on the night shift." Judy then ordered a drink which was delivered to her at the officers' table and was paid for by Freese (Count 24). At approximately 7:35 p.m. on July 8, 1982, Judy inquired of Hodge if he was ready for another beer and then said to Freese, "Can I get another one?" She then ordered a drink from the waitress known as Cathy, and the drink was paid for by Officer Freese (Count 25). At approximately 9:45 p.m. on July 8, 1982, Officers Freese and Hodge were seated at a table with a dancer known as Dorothy. At this time, Freese was approached by a waitress who asked him if he needed another drink, at which time Freese looked at Dorothy, and she said, "I'm drinking 7 and 7." The waitress delivered the drink to Dorothy, and it was paid for by Freese (Count 26). On July 19, 1982, Officer Hodge was again in the licensed premises in an undercover capacity and was seated in the upper level of the lounge. At approximately 9:15 p.m. the dancer Stephanie, who was sitting with Hodge asked, "Are you going to buy me a drink?" Upon Hodge agreeing to do so, Stephanie called to a waitress known as Darlene to bring her a mixed drink. Hodge paid for this drink (Count 27). On April 1, 1982, Officer Freese and the Confidential Informant were in the circular lounge in the upper portion of the licensed premises. At approximately 9:00 p.m., the dancer Caryl seated herself between the Confidential Informant and Freese. After the Confidential Informant inquired of Caryl if she had a bag of marijuana she had earlier promised them, Caryl stated that she did and would retrieve it. She then proceeded to a small dance stage and retrieved a large bag from which she transferred something into her handbag. Upon returning to the table, Caryl handed the marijuana to the Confidential Informant and was paid $10 by Freese (Count 25). On May 13, 1982, Officers Hodge and Freese entered the licensed premises in an undercover capacity. At approximately 11:10 p.m., the dancer known as Mercedes joined the officers and entered into a conversation with Freese. During the conversation, Mercedes discussed her use of cocaine and how it affected her. Freese inquired if she was in possession of any cocaine, to which she replied, "No, but I can get you some," and informed him that it would cost $45 for a half gram. At approximately 11:45 p.m., Mercedes delivered a small, clear, plastic package to Hodge containing a white powdery substance, later proven to be cocaine. The delivery of the cocaine occurred on the licensed premises while the officers were seated in the upstairs lounge (Count 29) On July 7, 1982, Officers Hodge and Freese were again in the licensed `premises. They engaged the dancer Stephanie in a conversation concerning the availability of drugs. She informed them that she was in possession of a fourth of an ounce of marijuana and would sell each of the officers two marijuana cigarettes for $5. At approximately 12:30 a.m. on this date, she advised Freese that she needed $10, since she was going to roll their marijuana cigarettes. At approximately 12:50 a.m. Stephanie returned to the officers' table and delivered two hand-rolled marijuana cigarettes to Freese and one to Hodge. This transaction took place on the licensed premises in the upstairs portion of the lounge (Counts 30 and 31). On July 8, 1982, Officers Hodge and Freese were again in the licensed premises. At approximately 7:20 p.m., Freese was approached by the dancer Linda, who inquired if he still wanted a gram of cocaine which she had agreed to sell to him on July 7, 1982. At approximately 9:30 p.m., Linda approached Hodge and Freese in the upper portion of the lounge. She handed Freese a small, amber, glass vial containing a half gram of cocaine for which he paid her $50. She also delivered a one dollar bill containing half a gram of cocaine to Hodge for which he paid her $45. After the deliveries were made, Linda informed Freese that she could obtain cocaine for him at any time as long as he gave her a day's notice (Counts 32 and 33). On July 14, 1982, Officer Freese was again in the licensed premises and took delivery of approximately one gram of cocaine from the woman known as Linda. Linda was not working as a dancer at the time, but was downstairs working as a bartender. Prior to the delivery of the cocaine to Freese, for which he paid $90, Linda requested that she be allowed to ingest part of the cocaine and proceeded to the dancers' restroom. Upon returning she gave Officer Freese the gram of cocaine contained in a plastic bag with the seal broken (Count 34). On July 15, 1982, Officers Freese and Hodge returned to the licensed premises accompanied by Special Agent Rick Look from the Florida Department of Law Enforcement. On this occasion, Agent Look took possession of approximately one-eighth of an ounce of cocaine from the bartender Linda. The delivery was made in the parking lot of the licensed premises where Linda delivered the cocaine to Look in return for $275. The arrangements for this transaction had been made the night before inside the licensed premises (Count 35). On July 20, 1982, Officer Hodge was again in the licensed premises in an undercover capacity. At approximately 8:50 p.m., the bartender Linda delivered approximately one gram of cocaine to Officer Hodge in return for $90. On this same date, Linda also delivered approximately one-eighth of an ounce of cocaine to Special Agent Look in return for payment of $280. The deliveries to Look and Hodge both took place in the downstairs portion of the licensed premises in the vicinity of the bar (Counts 36 and 37). The testimony of Respondent's employees established that the dancers in the upper portion of the lounge are not on Respondent's payroll and, in fact, pay Respondent for the privilege of dancing upstairs. Their compensation is obtained through tips they receive from customers for their dances. It was shown that the upstairs dancers are informed as to the rules of the club which prohibit solicitation of drinks and possession of drugs. These dancers have access to the various portions of the lounge, including the dressing room and the restrooms. Their schedules are controlled by the manager, who also hires and fires them. From the testimony of the dancer Stephanie, whose real name is Peggy Knight, it was shown that dancers generally knew that certain other dancers were selling drugs on the premises, that several of the dancers were using drugs and that they regularly ingested such drugs in the women's restroom. The reason for using this room was the double entrance, which could be locked from the inside so as to prevent intrusion. Testimony of the president of the licensee corporation, 2001, Inc., established that Respondent paid a $10,000 fine and served a two weeks' suspension in 1991 as a result of violations of Section 561.131, Florida Statutes. The president occasionally visits the licensed premises, but had not been to the upstairs portion of the lounge for almost two years.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty as charged in Counts 1 through 12, 14 through 25 and 27 through 37 of the Notice to Show Cause/Administrative Complaint and suspending Respondent's alcoholic beverage license for a period of one year. DONE and ENTERED this 10th day of February, 1983, in 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 10th day of February, 1983.
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the emergency order of suspension and notice to show cause dated November 25, 1991; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Lunar Guppies, Inc. is the holder of an alcoholic beverage license, number 58-03679, series 2-COP, for a licensed premises known as Club Space Fish Cafe (Cafe) which is located at 536 West Church Street, Orlando, Florida. All activities described herein took place at the licensed premises. Michael Brown is the president and majority shareholder of Lunar Guppies, Inc. Michael Buchanan is the corporation's vice president and he owns fifteen percent of the shares issued by the entity. At all times material to the allegations of this case, both owners, Mr. Brown and Mr. Buchanan, were present on the licensed premises. Some time prior to November 18, 1991, Mr. Brown was contacted by an individual known to him only as "Merle." Apparently, Merle represented the band known as "G.G. Allin and the Murder Junkies" (hereinafter referred to as the group or the band) and was responsible for seeking work for the group. After some discussions, the parties reached a verbal agreement whereby the band would play the second set at the Cafe on November 18, 1991. Flyers for the performance billed the event as the group's only Florida show. All arrangements were verbal, and were conducted between Mr. Brown and Merle. Initially, Mr. Brown expected the band to perform at 11:00 p.m. on the designated date; however, after checking in and reviewing the equipment, the group announced that they would return to perform around 11:30 p.m. During the check in meeting with the band, Mr. Brown advised the group that he did not expect them to damage property belonging to the Cafe. Prior to the group's performance Cafe staff had covered speakers with plastic to protect them from moisture. Also, areas of the stage were lined with plastic. According to Mr. Brown, such precautions are standard when rowdy bands are booked for the Cafe. The speakers, which belong to the Cafe, are expensive and sensitive to moisture. Spills from beverages are not uncommon with certain types of bands. Also prior to the group's performance on November 18, 1991, Mr. Brown prepared a written warning which was posted on the Cafe's door. While there is some dispute as to the exact language of the warning, the purpose was to warn Cafe patrons that the performance (by the band) was expected to contain language and subject matter which might be considered offensive or obscene by some. The exact language of the warning is unknown because shortly after the police arrived on the scene someone removed the sign and its current whereabouts is unknown. That the sign existed is not disputed. Upon his arrival back at the Cafe, the lead singer of the band, G.G. Allin a/k/a Kevin Allin (Allin), appeared for the band's microphone check wearing only a hooded jacket, studded dog collar, and shoes. Shortly after the check, removed his jacket to reveal that he was nude but for the dog collar and shoes. Also at that time the drummer for the band appeared and played in the buff as well. Just prior to, and during the first song performed by the band: Allin broke glass and rubbed it into his head causing a flow of blood which continued to stream down his head throughout his performance; he smashed his microphone into his head to further damage the wounds; he constantly grabbed his penis; and he leaped off the stage, knocked a female patron to the floor, and rubbed his face into her groin area simulating oral sex. The female patron kicked Allin and resisted his advances. At the conclusion of the first song, Allin grabbed a male patron and rubbed his penis against the man's head. During the second song, Allin's acts prompted most of the Cafe's patrons to flee the interior of the licensed premises. Most fled after Allin defecated onto the Cafe floor, urinated into his own hand (so he could drink it), followed by his licking the floor (with the feces) and spitting and throwing it at patrons. When Allin returned to the stage, he stuck his finger into his rectum and rubbed the microphone in the anal area as well. During the remainder of the performance (three or four more songs), Allin continued to dance around the Cafe (encumbered only by the microphone cord), continued to fondle his penis, allowed at least one patron to fondle his penis, and poured himself a beer at the bar. At all times described above, Mr. Buchanan observed the performance and did nothing to deter Allin. During the performance there was a sound and/or light technician above the Cafe's main floor who watched the band and, presumably, assisted. The Cafe has flood lights above the main floor area where Allin performed. When the patrons from the Cafe fled into the street outside, officers in a patrolling police car observed the commotion. Two officers, Browning and Arnott, went to the Cafe to investigate. Upon entering the premises, Officer Browning observed Allin on the floor rubbing his head into glass. Obviously, Officer Browning noted that Allin was au naturale. At that point the band's performance ceased. The term "performance" has been used herein loosely to describe what occurred at the Cafe; such "acts" could hardly be described as entertainment. After taking statements from Cafe patrons, the police officers filed criminal charges against Allin in connection with the incidents described above. Incidental to the arrest, Mr. Brown and Mr. Buchanan voluntarily went to the police station and filed sworn statements regarding the night's activities. While Mr. Buchanan was present behind the bar during the entire performance (approximately twenty-six minutes, six songs) his sworn statement is replete with factual errors regarding what occurred. Additionally, Mr. Brown's sworn police statement incorrectly chronicled the acts which had occurred. Mr. Brown's explanation at the hearing has not been deemed credible nor were his comments regarding the disappearance of the written warning which had been posted on the Cafe's door. At the start of Allin's performance, Mr. Buchanan and Mr. Brown should have provided appropriate security for the Cafe patrons. At least one female patron was touched by Allin and demonstrated her displeasure at such conduct. Volunteer security help (which incidently fled with the others) is not sufficient when a band's performance might be considered to be, and anticipated to be, rowdy (as the plastic suggested). Once the band member Allin exhibited inappropriate conduct (as early as the first two songs), the Cafe owners should have taken measures to stop the performance. Given public sensitivity related to exposure to body fluids, the Cafe owners were negligent in not aborting Allin's act once it began, and in not previewing his proposed performance since they were made aware of the potentially objectionable nature of the show (as evidenced by the warning and Mr. Brown's prior conversations with band members and groupies). Even if Mr. Brown and Mr. Buchanan did not know the full extent of Allin's proposed performance, once he exhibited offensive and lewd conduct, they bore a burden to interrupt the act and take precautionary measures to insure the safety of the Cafe patrons. Mr. Brown's explanation that he was fearful for his own safety (and thus excused from action) has not been deemed credible. At the minimum, Mr. Brown or Mr. Buchanan could have sought assistance from 911 (which was not done). Had the police not arrived when they did, no telling how long the Cafe owners would have allowed Allin to reign. Presumably, until the set contracted for was finished. As it was, Mr. Brown paid the band for a partial performance. Subsequent to the Allin performance, the Cafe owners have drafted a written agreement to attempt to avoid any reoccurrence of an unlawful performance. The Cafe did not prior to, or subsequent to, November 18, 1991, allow an unlawful performance such as that which is described herein to be conducted on its licensed premises. The acts which occurred on November 18, 1991, are the sole basis for disciplinary action against this licensee.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order suspending Respondent's alcoholic beverage license for a period of ninety (90) days retroactive to the date the emergency order was entered. DONE and ENTERED this 7th day of January, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of January, 1992. APPENDIX TO CASE NO. 91-7697 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: The Petitioner footnoted many of its proposed findings of fact. Such footnotes are not accepted as they contain argument, comment, or irrelevant matters. The proposed findings have been addressed without reference to footnotes as follows: Paragraphs 1 through 5 are accepted. With the deletion of the phrase "Once back on the stage" paragraph 6 is accepted. Paragraph 7 is accepted. With regard to paragraph 8 it is unknown if Merle was, in fact, the band's manager; otherwise, the paragraph is accepted. With the deletion of the second sentence which is rejected as hearsay, paragraph 9 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: NOTE: Respondent's proposed findings of fact begin with the numbered paragraph 4. Paragraphs 4 through 8 are accepted. Paragraph 9 is accepted but is irrelevant. Paragraph 10 is rejected as argument or comment. The weight of the credible evidence suggests that, utilizing ordinary care, the Cafe owners should have made inquiries to assure that the band would not perform lewd acts (they were on notice of the band's potential for offensive behavior). The first sentence of paragraph 11 is accepted; otherwise rejected as argument or comment. Paragraph 12 is rejected as contrary to the weight of the credible evidence. Respondent knew the band's performance might be offensive or obscene and failed to use ordinary care to assure it would not be unlawful. Paragraph 13 is accepted to the extent that it states most patrons fled; however, others remained and the Respondent allowed the performance to continue. COPIES TO: Janet E. Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Donald D. Conn General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Richard W. Scully Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Klein Chief Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Howard S. Marks Graham, Clark, Pohl & Jones 369 North New York Avenue Post Office Drawer 1690 Winter Park, Florida 32790
Findings Of Fact At all times material to the charges raised in this matter, the Respondent, Fresh Start, Inc., was the holder of a valid beverage license No. 62-661, Series 4-COP. That beverage license is issued to the licensed premises located at 7898 U.S. Highway 19, Pinellas Park, Florida, and known as the Strip Ahoy. Mr. Jack Leveritt is president of Fresh Start, Inc., and one of the two owners of that corporation. Mr. Tom Whitaker owns 50 percent of the stock of Fresh Start, Inc., and is vice president of that corporation. Pursuant to a stipulation entered into by and between the parties, on the record at the formal hearing, the following findings of fact are made: Count 1 - On or about March 9, 1983, Theresa Ann White, also known as Teanna, did unlawfully possess, sell and/or deliver controlled substance, diazepan, as defined in Florida Statute 893.03, to Sheriff's Deputy D. Patton, on the licensed premises. Count 2 - On or about March 9, 1983, Theresa Ann White, also known as Teanna, did unlawfully possess, sell and/or deliver a controlled substance, diazepan, as defined in Florida Statute 893.03, to Sheriff's Deputy D. Herrick, on the licensed premises. Count 3 - On or about March 10, 1983, Theresa Ann White, also known as Teanna, did unlawfully possess, sell, and/or deliver a controlled substance, diazepan, as defined in Florida Statute 893.03, to Sheriff's Deputy D. Ferdon, on the licensed premises. Count 4 - On or about March 12, 1983, Theresa Ann White, also known as Teanna, did unlawfully possess, sell, and/or deliver a controlled substance, as defined in Florida Statute 893.03, cannabis, to Sheriff's Deputy D. Ferdon, on the licensed premises. Count 5 - On or about March 20, 1983, Joyce Ann Seville, also known as Sherry, did unlawfully possess, sell and/or deliver a controlled substance as defined in Florida Statutes 893.03, Lysergic acid Diathamine, to Sheriff's Deputy C. Kanehl, on the licensed premises. Count 6 - On or about March 31, 1983, Sherry Ann Peters, also known as Carol, did unlawfully possess, sell, and/or deliver a controlled as defined in Florida Statute 893.03, cannabis, to Sheriff's Deputy D. Herrick, on the licensed premises. Count 7 - On or about April 1, 1983, Elizabeth Chader, also known as Luwanda, did unlawfully possess, sell and/or deliver a controlled substance as defined in Florida Statute 893.03, cocaine, to Sheriff's Deputy C. Kanehl, on the licensed premises. Count 8 - On or about November 29, 1983, Theresa Yerby, also known as Brandy, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, cannabis, to Sheriff's Deputy C. Kanehl, on the licensed premises. Count 9 - On or about December 15, 1983, Theresa Yerby, also known as Brandy, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, cocaine, to Sheriff's Deputy C. Kanehl, on the licensed premises. Count 10- On or about January 8, 1984, Kimberly Grenzbach, also known as Kimberly, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, cocaine, to Beverage Investigators M. Freese and B. Ashley, on the licensed promises. Count 11 - On or about January 12, 1984, Theresa Yerby, also known as Brandy, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, cocaine, to Sheriff's Deputy C. Kanehl, on the licensed premises. Count 12 - On or about January 12, 1984, Cherie Webber, also known as Cherie, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, cocaine, to Beverage Investigator M. Freese, on the licensed premises. Count 13 - On or about January 12, 1984, Kimberly Grenzbach, also known as Kimberly, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, cocaine, to Beverage Investigator M. Freese, on the licensed premises. Count 14 - On or about January 12, 1984, Kimberly Grenzbach, also known as Kimberly, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, cocaine, to Beverage Investigator B. Ashley, on the licensed premises. Count 15 - On or about January 13, 1984, Cherie Webber, also known as Cherie, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, cocaine, to Beverage Investigator B. Ashley, on the licensed premises. Count 16 - On or about January 13, 1984, Kimberly Grenzbach, also known as Kimberly, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, methaqualone, to Beverage Investigator M. Freese, on the licensed premises. Count 17 - On or about January 17, 1984, Kimberly Grenzbach, also known as Kimberly, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, methaqualone, to Beverage Investigator M. Freese, on the licensed premises. Count 18 - On or about January 17, 1984, Kimberly Grenzbach, also known as Kimberly, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, methaqualone, to Beverage Investigator B. Ashley, on the licensed premises. Count 19 - On or about January 19, 1984, Christie Howard, also known as Christie, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, methaqualone, to Sheriff's Deputy C. Kanehl, on the licensed premises. Count 20 - On or about January 28, 1984, Kimberly Grenzbach, also known as Kimberly, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, methaqualone, to Beverage Investigator M. Freese, on the licensed premises. Count 21- On or about February 3, 1984, Theresa Yerby, also known as Brandy, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, cannabis, to Beverage Investigator B. Ashley, on the licensed premises. Count 24 - On or about the below listed dates and times, entertainers Cody, Cherie, Valerie, Kimberly, Kim and Gayla, while actively engaged as dancers on the licensed premises, did unlawfully beg or solicit, patrons, customers or visitors, Beverage Investigators B. Ashley, D. O'steen and M. Freese to purchase beverages for the entertainers. NO. DATE APPROX. TIME EMPLOYEE VICTIM 1 4-6-83 10:00 P.M. CODY, dancer O'STEEN 2 4-6-83 11:45 P.M. CODY, dancer O'STEEN 3 1-6-84 8:00 P.M. CHERIE, dancer FREESE 4 1-6-84 8:50 P.M. CHERIE, dancer FREESE 5 1-17-84 8:50 P.M. CHERIE, dancer FREESE 6 2-3-84 10:15 P.M. CHERIE, dancer FREESE 7 2-3-84 10:30 P.M. GAYLA, dancer ASHLEY 8 2-3-84 11:00 P.M. KIMBERLY, dancer FREESE 9 2-7-84 7:15 P.M. KIM, barmaid ASHLEY 10 2-7-84 7:30 P.M. VALERIE, dancer ASHLEY 11 2-7-84 11:20 P.M. KIM, barmaid FREESE The transaction referred o in Count I above, occurred on the evening of March 9, 1983. On that particular evening, Deputy D. Patton entered the licensed premises with too other undercover officers and was approached by a dancer named Theresa White. Ms. white and Officer Patton began talking and during the course of the conversation, Ms. White offered to obtain some Valium for Deputy Patton. Officer Patton indicated that he would be interested in purchasing some valium and Ms. White then left him and was seen talking with another dancer at the bar area. A short time later she came back and said there was none left at that time but that she was going to get some later in the evening. Approximately 1 1/2 hours later, she returned to Officer Patton and indicated that she had obtained the diazepan. Officer Patton paid her $5.00 and she gave four diazepan (Valium) tablets to Officer Patton. The money and the tablets were passed under the table out of sight. The purchase of cocaine referred to in Count 10 above occurred on the evening of January 8, 1964. On that particular evening, Beverage Officers B. Ashley and M. Freese, went to the licensed premises and upon entering sat along the west wall of the main lounge area. They were joined by a dancer named Kimberly Grenzbach. They had previously discussed buying some cocaine from Kimberly Grenzbach. Shortly after they arrived, Kimberly and Officer Freese went into the back room of the lounge. The Strip Ahoy Lounge is built somewhat in the shape of a ship with the bow pointing toward the north. In the northern most portion of the lounge is located an office and a dressing room separated by a wall. Just outside the office is a square bar area with stools surrounding the bar. This bar is located in the main lounge portion of the bar which is a room approximately 63 feet long and 27 feet wide. In the southwest corner of the building is located the men's and women's restroom. The back room referred to above is a room located at the southeast corner of the lounge with a doorway leading into the main lounge. This back room is used for table or lap dancing. When Officer Freese and Kimberly went into the back room, they sat at a table and Kimberly took two triangular shaped plastic baggies containing cocaine out of her purse and handed them to Freese. She made no attempt to conceal these baggies. Freese then examined the baggies and handed her $100. The money was handed to her above the table and in the open. The total purchase price of the 2 grams of cocaine was $200 and Freese told Kimberly that Ashley had the other $100. Kimberly and Freese them returned to a large lounge area and sat next to Ashley who then gave the additional $100 to Kimberly. On the evening of January 9, 1984, Officer Freese was in the Strip Ahoy Lounge and went into the back room with Kimberly to examine some cocaine she was proposing to sell him. After entering the back room, they sat at a table and Kimberly took two small plastic baggies of cocaine out of her purse and handed them to Freese. Freese then examined the baggies and said they looked short to him. About that time Cherie Webber and her ex-boyfriend came into the back room and sat at a table. Kimberly then said "Cherie would know if anyone would" whether the baggies were short. Kimberly and Freese then walked over to Cherie's table and Kimberly handed the two baggies to Cherie, who held them up and examined them. Cherie said they looked short to her and she then handed them to her boyfriend who examined them and said it looked like about $60 worth to him. On the evening of January 12, 1984, Officers Ashley and Freese returned to the Strip Ahoy and made the drug purchases referred to in Counts 12, 13, and 14 discussed above. Prior to entering the lounge that evening, the two officers had made arrangements to buy cocaine from Kimberly Grenzbach. After they entered the lounge, they sat and waited for Kimberly and were approached by another dancer named Cherie Webber. Cherie walked by and asked if they wanted any "coke." Coke is a street term or slang for cocaine. Freese and Ashley told her they had already made arrangements to buy some from Kimberly. Cherie then said that she had hers with her now and Freese asked her about the quality of the coke she had. She responded that hers was always good quality. Cherie then sat down and agreed to sell Freese a half gram and said she needed to go into the bathroom because she had a large bag in her purse and she didn't want the small baggies to fall on the fiber when she opened her purse. She went to the bathroom and returned a short time later and sat next to Freese. Ashley was seated on the other side of Freese and observed Cherie hand a small, clear plastic baggie of cocaine to Freese. Freese then handed $50 to Cherie. After completing the purchase from Cherie, Freese went into the back room with Kimberly. They sat at a table and Kimberly handed him two plastic baggies containing cocaine. He held them up and examined them very carefully because of the problem he had on January 9. He tapped the baggies as he examined them and then selected one of the two baggies. He then handed $100 to Kimberly and told her she would have to talk to Ashley about the other gram of cocaine. Handing over the cocaine and the cash was done openly and not concealed. Later, on the evening of January 12, 1984, Freese and Ashley were approached by Kimberly, who walked up and told Ashley she had his cocaine. Ashley then went into the back room with Kimberly and sat at a table. Kimberly handed a clear plastic baggie containing cocaine to Ashley. Ashley held it up at eye level and examined it and then handed cash to Kimberly. There were other patrons and dancers in the room at the time. After purchasing the cocaine from Kimberly, Freese had spoken to Cherie once again and told her that Ashley wanted another half gram. When Ashley rejoined Freese, they left the bar to obtain more money and returned after midnight. While sitting in the back room with a dancer named Brandy, Ashley was approached by Cherie who walked up and asked if he wanted the half gram. She took a large baggie out of her purse. The large baggie contained several small baggies. Ashley then told Brandy she would have to move so he could get some money out of his pocket. He handed $50 to Cherie and she handed him a small baggie containing cocaine. This transaction was openly viewed by Brandy, Kimberly Grenzbach, and Officer Freese. This purchase is referred to in Count 15 above. The purchase discussed in Count 16 above occurred on the evening of January 13, 1984. Prior to going to the Strip Ahoy, Officer Freese had telephoned Kimberly and made arrangements to buy some "gorilla biscuits" which is slang for Quaaludes or methaqualone. After entering the lounge Kimberly walked up to Freese and said she had the Quaaludes. They then went into the back room and sat at a table. Kimberly was working as a dancer this evening and when they sat down, another dancer named Nellie was performing a lap dance for a patron at the next table. Kimberly handed Freese a clear cellophane packet containing 6 capsules of methaqualone. Freese paid her $24. There was no attempt to conceal the transfer of the cash or the methaqualone. On January 17, 1984, Officers Freese and Ashley returned to the licensed premises. They had previously arranged to buy some methaqualone from Kimberly Grenzbach. Shortly after arriving, Freese went into the back room with Kimberly where he purchased three Quaaludes (methaqualone capsules). Prior to paying Kimberly the agreed $12 price, Officer Freese examined the capsules. The cash and capsules were exchanged in open view with no attempt to conceal the exchanges. After completing the transaction with Freese, Kimberly returned to the main lounge area where Ashley was waiting. She took Ashley into the back room where she took a clear cellophane cigarette packet containing 3 capsules of methaqualone out of her purse and handed them to Ashley. Ashley then handed her $12 cash. There was no attempt by either of them to conceal the transfer of the drugs or cash. Officer Freese returned to the licensed premises on January 28, 1984, and made the drug purchase referred to in Count 20 above. Freese had previously phoned Kimberly Grenzbach and arranged to buy 25 methaqualone capsules. When he entered the licensed premises, Freese sat next to the west wall in the main lounge area. He was reined by Kimberly Grenzbach, who told him she had the Quaaludes. She said she would have to go into the dressing room and get them out of the locker. She left and returned a short time later and sat next to Freese. She placed a clear plastic baggie containing the 25 methaqualone capsules on the bench seat between them. Freese picked up the bag and looked at the capsules. Someone walking by at that moment could have seen the bag and capsules. Freese then handed Kimberly $100 in cash. On the evening of February 1, 1984, Officers Freese and Ashley were again in the licensed premises. At one point Officer Freese observed Kimberly Grenzbach talking with a gentleman seated at the bar. Kimberly left the man and walked over to Freese. She said the man at the bar had asked her to go in the back room and dance for him and snort some cocaine. Later, Freese and Kimberly went into the back room and sat at a table. They observed a dancer named Nellie come into the back room with the gentleman that Kimberly had previously been talking to at the bar. Nellie and the man sat at a table across the room from Freese. Freese observed the man take something out of his pocket, pour it on the table and line it up on the table. Kimberly said the man was going to snort coke with Nellie. The man then bent ever the table and made a loud snorting noise. Nellie then bent over the table and made a loud snorting noise. While this was occurring, Officer Ashley had come into the back room to look for Freese. When Ashley entered, Kimberly said, "Hey go over there and tell them you are a cop." Ashley observed Nellie and her male companion lining up a white powder on the table and then heard and observed a loud sniffing of the powder. This is typically the way cocaine is snorted or sniffed. Although the lights were fairly dim, there was sufficient light to observe people completely across the room. While on the licensed premises, Officer Ashley observed numerous other patrons and customers make drug purchases in the lounge. On the first three drug purchases made by Ashley, the dancer selling the drugs initiated the discussion and offered to sell drugs prior to any inquiry about drugs by Ashley. The Strip Ahoy is a topless bar and during the dates discussed above, the women involved in the drug purchases were working as dancers at the lounge. Each of the dancers was required to sign a contract before coming to work at the lounge. They were not paid a salary but danced solely for tips. They received no benefits such as workmen's compensation or Social Security from the Respondent. The contracts (see Respondent's composite Exhibit 2A through 2H) stated that the dancers were of three dances on a stage in an order established by Carl, the doorman. Carl Stone, the doorman and manager, would in the evenings, use a microphone and sound system to inform each dancer when it was her time to dance. While they were not dancing on the stage, the dancers would sit with patrons and perform table or lap dances for them in the back room. The lounge retained the right to approve or disapprove of a particular dancer's dance routine. Carl Stone supervised the dancers, and along with the owners, had the right to fire any dancer. Patrons, at least in part, came to the lounge to see the dancers perform. The lounge decided which dancers worked days and which dancers worked at night. Each dancer was given a copy of the House Rules and a copy was posted in the dressing room. These rules provided: Keep yourself well groomed at all times. Have attractive attire to wear when not performing. No Husbands, Boyfriends, ETC! Allowed while working. No one is to frequent club during off hours. No smoking or drinking while on stage. Only one girl on the stage at a time. No talking while on stage performing. Do not leave club except in street clothes. No sitting on stage bar. No more than two Ladies in dressing room at a time. (Except during beginning or ending of shift.) Any Dancer threatening another will be dismissed. Do not engage in any act which could be considered Lewd or Lascivious. Any Dancer stealing from a customer or other employees will be dismissed and prosecuted. Anyone suspected of Using, Buying or Selling of Drugs will be dismissed immediately. NO LOUD TALKING OR SHOUTING IN ROOM. KEEP YOUR VOICES DOWN. NO WHISTLING!! The individual who was responsible for the management and supervision of the club in the evenings from 7:00 p.m. to closing time at 2:00 a.m. was Carl Stone. He controlled the conduct of the dancers. Carl Stone was employed by the lounge as a salaried employee from April 1983 to August 26, 1983. In August, 1983, Carl Stone was also required to enter into a contract which stated he was an independent contractor and not entitled to a salary or other benefits. He was subject to the supervision, orders, advise, and direction of Respondent and was to provide management of the exotic dancers. Mr. Stone performed the same function and duties after this agreement as he did before the agreement was executed. When the owners were absent from the lounge at night, Carl was the sole person in charge. He worked at the door and collected the cover charge from 7:00 p.m. until 1:15 a.m. The first eight months of operation, Tom Whitaker was in the club almost every night. However, the last four months of operation, he generally did not come into the club until midnight or 1:00 a.m. On Friday and Saturday nights, there were two waitresses in the lounge. On other nights there was only one waitress. The waitresses were responsible for serving drinks in the lounge area and the back room and were the persons responsible for checking on the activities of the dancers in the back room on a regular basis. The back room could not be observed from the bar area, the office, or the entrance area. The door of the office has a two-way mirror which permits the owners to observe most of the main lounge from the office. During the year 1983, the owners gave polygraph exams on two occasions to all employees. One waitress, named Elizabeth Chader, had previously worked as a dancer and was fired after failing the polygraph on two questions relating to money and knowledge of drug activity on the licensed premises. This woman was also known as Luwanda and is the individual who sold drugs referred to in Count 7 discussed above. One of the owners, Jack Leverett, was questioned by the police about this dancer some time after she was fired and he gave them all the information he had. Dancers were not considered employees and were only polygraphed if a specific complaint was received. No dancers were polygraphed regarding drug activity. One dancer was fired after a bartender caught her with a needle in her arm in the restroom and reported it to the owners. Carl fired one dancer named Nikki after he observed her erratic behavior and found needle tracks on her arm. On at least two occasions, the owners called the Pinellas Park Police Department regarding suspected drug activity by patrons in the club. No such calls were made about any of the dancers at the club. When the club initially opened, a lot of "bikers" or motorcycle gang members frequented the club. The owners used a strict dress code and discouragement to eliminate these types of patrons from the club. The main lounge area and back room are dimly lit with candles on each table. The stage in the main lounge has lights in the floor and running red lights above. There are also lights in the bar area. The dim lighting makes it more difficult to observe the activities of dancers and patrons in the bar. The number of dancers in the club varied from 6 to 10 per shift. Typically, over an entire shift between 100 to 150 patrons would come into the club.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Petitioner enter a final order finding the Respondent guilty of the violations as charged in the Notice to Show Cause and suspending Beverage License No. 82-661 for a period of nine (9) months and imposing a civil penalty of $10,000. DONE AND ENTERED this 15th day of March, 1984, in Tallahassee, Florida. MARVIN E. CHAVIS 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 15th day of March, 1984. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Joseph F. MeDermott, Esq. 544 First Avenue North Division of Administrative St. Petersburg, Florida Michael N. Athanason, Esq. 500-First Avenue North St. Petersburg, Florida 33701 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
Findings Of Fact The Hearing Officer finds the following facts: Respondent is the holder of Beverage License No. 26-957,2-COP and the licensed premises encompass the bar known as "The Harem". Sergeant Thomas R. Genest, a Jacksonville Police Officer, went in The Harem on November 1, 1974. Upon entering he saw Georgiann Smith and Annie Pearl Williams, both of whom worked as topless dancers in The Harem and were at that time dressed as topless dancers. At the time Sergeant Genest entered the bar Smith was dancing topless at the bar between the legs of a male patron simulating intercourse with the patron. Williams was similarly dancing topless between the legs of a male patron, simulating intercourse and allowing the patron to place his hands on her buttocks and thighs. Sergeant Genest had no independent recollection of Virginia Lou Roberts or any acts in which she might have been engaged on November 1, 1974, in The Harem. On March 6, 1975, Detective H. R. Hall of the Jacksonville Sheriff's Office Vice Squad, was working The Harem undercover. While in The Harem he saw Maria Jenkins, Essie Mae Parks and Gaynell Moore, who were dressed as topless dancers and working as topless dancers in the bar. Jenkins was dancing topless between the legs of a male patron and rubbing her body against him as she danced. Parks was dancing topless between the legs of a male patron, who had his hands on her buttocks as she rubbed her vagina against his mid-section. Moore was dancing topless between the legs of a male patron who had his hands on her buttocks as she rubbed her vagina against his mid-section. At all times pertinent to this proceeding Georgiann Smith, Annie Pearl Williams, Maria Jenkins, Essie May Parks and Gaynell Moore were agents, servants or employees of the licensee.
