Findings Of Fact Peter P. Sedler, at all times material to the complaint, has been licensed as a real estate broker, holding license 0079017. He was last licensed as a broker c/o Marshall & Sedler, Inc., 7771 St. Andrews, Lake Worth, Florida 33467. Marshall & Sedler, Inc., at all times relevant to the complaint, had been registered as a Florida real estate broker, holding license 0250511, its last licensed address was 7771 St. Andrews, Lake Worth, Florida 33467. Peter P. Sedler was the qualifying broker and officer for Marshall & Sedler, Inc. On about July 3, 1987, Tom Teixeira was employed as a salesman by Cartier Realty, of 11852 42nd Road North, Royal Palm Beach, Florida. Cartier Realty had solicited, through a direct mailing, listings for property in the Royal Palm Beach area. Ms. Mary Myers, an older woman of about 70 years of age, responded to the advertisement, and gave Mr. Teixeira an open listing for real property which she owned. While Mr. Teixeira placed a Cartier Realty "For Sale" sign on the property, the sign was somehow removed shortly thereafter, and no party dealing with Ms. Myers during the months of July, August and September of 1987 would have been placed on notice that Cartier Realty had any listing on the property. Mr. Sedler had nothing to do with the disappearance of the sign. Ms. Myers had originally acquired the property from her daughter. Long before Ms. Myers gave a listing to Cartier Realty, William Kemp and his wife Gina DiPace Kemp had told Ms. Myers that they were interested in purchasing the property, which is adjacent to the home of Mr. and Mrs. Kemp. When Mr. and Mrs. Kemp first contacted Ms. Myers, she had wanted to keep the property, in the belief that she might eventually convey it back to her daughter. Mr. Teixeira brought to Ms. Myers an offer from David R. and Maureen C. Rose to purchase the land for $11,900. Ms. Myers did not accept that offer, but the Roses accepted Ms. Myers' counteroffer on July 24, 1987, to sell it for $12,300. The sale was contingent upon the buyers obtaining financing; they applied for a loan, and ordered both an appraisal and a survey. The closing was to be held by September 1, 1987. (Contract, paragraph VI.) The closing date passed, without the buyers obtaining the necessary financing, so the contract was no longer effective. On about September 8, 1987, Mr. Teixeira attempted to contact Ms. Myers. He had obtained no written extension of the contract but hoped the sale might yet close. Ms. Myers told Teixeira that she was still willing to sell the property to Mr. and Mrs. Rose. In the meantime, Mr. and Mrs. Kemp became aware that Ms. Myers wanted to sell the property, because they noticed Mr. and Mrs. Rose coming to look at the land, and had engaged them in conversation. Ms. Kemp then contacted Ms. Myers to remind her that they were still willing to purchase the property, and also to say that they would offer more than the current offer on the property. On about September 11, 1987, Ms. Kemp contacted Cartier Realty to say that she also wished to make an offer on the Myers' lot. For a reason which was never adequately explained at the hearing, Teixeira, who should have been working on behalf of the seller, refused to take the offer, even though it was for a higher price. After this rebuff by Teixeira, Ms. Kemp contacted Marshall & Sedler, Inc., in order to try to find a broker who would convey their offer to Ms. Myers and spoke with Patricia Marshall, Ms. Marshall referred her to her partner, Peter Sedler. The Kemps told Sedler that Ms. Myers had told them that she had received a $9,000 offer on the lot. Why Ms. Myers told the Kemps that the Rose offer was $9,000 is not clear, for the actual offer had been $12,300, but Sedler did not know this. There was no listing of the lot in the local board of realtors multiple listing service book, and Mr. Sedler found the address of Ms. Myers through the public records. Mr. Sedler knew from his conversations with Ms. Kemp that Cartier Realty had some involvement with an offer on the property. He called Cartier Realty and tried to speak with the broker handling the matter. He spoke with a man named Tom, who he thought was a brother of the owner of Cartier Realty, Pete Cartier. Mr. Sedler actually talked with Tom Teixeira. Sedler believed he was dealt with rudely by Teixeira, who had hung up on him. Sedler then called Pete Cartier directly to find out whether there was an outstanding contract on the property, and Cartier told Sedler that he would call Sedler back. When Cartier called Sedler, Cartier warned Sedler that he should stay out of the deal. Mr. Sedler became suspicious about Cartier Realty's failure to bring a higher offer to the attention of the seller, and on September 16, 1987, filed a complaint against Tom Cartier with the Lake Worth Board of Realtors. Mr. Sedler then traveled to Pompano Beach to meet with Ms. Myers at her home, and brought with him a contract for sale and purchase of the property, already signed by the Kemps and dated September 14, 1987. While at the door, Ms. Myers asked Peter Sedler if he was "Tom." Ms. Myers knew that she had been dealing with a "Tom" at Cartier Realty, but all her dealings were on the phone, and she did not know what Tom Teixeira looked like. Sedler replied "Yes, but you can call me Pete." Sedler merely intended the comment as humor. At that time Sedler gave Ms. Myers his pink business card and specifically identified himself as Pete Sedler of Marshall & Sedler, Inc. Mr. Sedler asked Ms. Myers if she had any paperwork, such as the prior contract for the sale of the lot which had expired on September 1, 1987, but she did not. While Sedler was with Ms. Myers, she agreed to sell the property to the Kemps for $12,500 and signed the Kemp contract. The Kemps had put the purchase price of $12,500 into the Marshall & Sedler escrow account. Three days later, on September 18, 1987, Mr. Sedler, in the company of his wife Bonnie, presented a post-dated check to Ms. Myers in the amount of $11,020, the net amount due to Ms. Myers for the lot, based on the purchase price of $12,500. When they met this second time he introduced himself again as Pete Sedler and offered Ms. Myers his card for a second time. The post-dated check was conditioned by an endorsement making it good upon a determination that the title to the lot was good. A quit claim deed to Mr. and Mrs. Kemp was executed by Ms. Myers and witnessed by Bonnie Sedler. The post-dated check was given to Ms. Myers because she was about to leave on vacation. The check was given as a sort of security for good title, in return for the quit claim deed which closed the transaction. Mr. Sedler had structured the transaction in this way because he was concerned that someone at Cartier Realty might also attempt to purchase the property from Ms. Myers on behalf of one of their clients. At that time, Mr. Sedler held the reasonable belief that no other party had a subsisting contract to purchase the property from Ms. Myers. Sedler had no reason to believe the Roses would or could pay more for the property than the Kemps offered. Ms. Myers knew that Tom Teixeira from the Cartier realty firm represented a distinct business entity from Marshall & Sedler or Pete Sedler. After a title search showed that Ms. Myers had clear title to the property, the check which Mr. Sedler had given to Ms. Myers on September 18, 1987, with the restrictive endorsement was replaced. Later Mr. and Mrs. Rose tried to close their purchase, but found they could not. Ms. Myers had failed to inform them of the sale she made to the Kemps through Mr. Sedler. Mr. Teixeira, in retribution, filed an ethics complaint about Mr. Sedler with the West Palm Beach Board of Realtors.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint against Peter P. Sedler and Marshall & Sedler, Inc., be dismissed. RECOMMENDED this 14th day of March, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 14th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6183 Rulings on findings proposed by the Department: 1. Rejected as unnecessary. 2 and 3. Adopted in Finding 1. 4 - 6. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 3. Implicit in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 6. Implicit in Finding 6. This does not mean that the contract subsisted, however. Rejected. Ms. Myers was willing to sell the property to Mr. and Mrs. Rose after the contract expired, but she was not under any obligation to do so. Adopted in Finding 7. Rejected, because there was no pending contract. Teixeira never obtained a written extension of the closing date and Ms. Myers was free to sell elsewhere. Rejected. No one could have truthfully told Sedler there was a pending contract. None existed. Rejected, because Mr. Sedler had no reason to believe that there was a subsisting contract for the sale of the property; there was none. Admission number 20 is not to the contrary. Adopted in Findings 10 and 11. Rejected. See, Findings 9 and 10. Rejected as unpersuasive. Rejected as cumulative to Finding 9. Adopted in Finding 14. Adopted in Finding 11. Rejected as unnecessary. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Frank W. Weathers, Esquire Frank W. Weathers, P.A. Post Office Box 3967 Lantana, Florida 33465-3967 Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, post- hearing memoranda and briefs, and the entire record compiled herein, thereby make the following relevant factual findings. At all times material to the allegations and charges in this proceeding, Respondent, Riviera Resort Hotel Associates, Ltd., was the holder of a valid alcoholic beverage license No. 16-615-S, Series 4-COP, located at 2080 South Ocean Drive, Hallandale, Broward County, Florida. On May 8, 1984, at about 9:30 p.m., Officer D'Ambrosia entered the licensed premises in an undercover capacity with a confidential source (CI). Based on a telephone complaint, Officer D'Ambrosia was requested by his supervisors to conduct an investigation to determine if the complaint was meritorious. The main lounge in the licensed premises has a front and back entrance. The front entrance is through the main lobby and the back door leads to a parking lot. Upon entering the premises, Officer D'Ambrosia and CI approached the main bar. Sergeant Pat Roberts was at the main bar area as a backup officer. There were approximately four other patrons at the bar. Officer D'Ambrosia and CI made contact with the on-duty bartender, Tommy Brownyard. After Brownyard served them drinks and the three of them engaged in general conversation, CI asked Brownyard if he had the "stuff" and if the price of $80.00 was still the same. Brownyard affirmed, stating that it would be in three bags, a one-gram and two half gram bags. CI then turned to Officer D'Ambrosia and stated the price of two grams would be $160.00. Officer D'Ambrosia counted out eight $20.00 bills and laid them on top of the bar counter. Brownyard left the bar area and entered the men's bathroom. After two or three minutes, Brownyard left the restroom, walked back to the bar and approached Officer D'Ambrosia and CI. Brownyard placed what looked like a pack of Marlboro cigarettes on top of the counter. Officer D'Ambrosia spread out the eight $20.00 bills on top of the counter in a manner that Brownyard could see it and Brownyard picked up the money while facing Officer D'Ambrosia and counted it behind the bar. Brownyard placed the currency in his pants pocket. Officer D'Ambrosia picked up the Marlboro box, opened it, and pulled out three clear plastic zip-lock-bags containing a white powdery substance. After looking at the bags, Officer D'Ambrosia placed them back into the box and placed a box in his shirt pocket. Sergeant pat Roberts observed the transaction. The three plastic bags which Officer D'Ambrosia purchased from Brownyard contained cocaine, a controlled substance under Chapter 893, Florida Statutes. As stated, the lounge only had, at most, four patrons besides Officer D'Ambrosia, CI and Roberts. The conversation with Brownyard about drugs occurred in a normal tone of voice. Officer D'Ambrosia did not attempt to conceal the purchase of drugs at the bar. Before Officer D'Ambrosia and CI left the bar, they spoke to Brownyard about the best time to buy more cocaine. Brownyard stated that Thursday (May 10, 1984) would be good but that Officer D'Ambrosia or CI should first call. Brownyard said that if Officer D'Ambrosia or CI wanted one gram of coke, to call and say "Is the one girl in there tonight?" and if Officer D'Ambrosia or the CI wanted two grams of cocaine, to call and ask "If the two girls are tonight." Brownyard would respond yes or no to the questions. After Officer D'Ambrosia and CI left, Sergeant Roberts had a conversation with Brownyard. Brownyard told Sergeant Roberts that he worked "directly for the owners" and that he "ran the placed" apparently referring to the lounge. On May 10, 1984, at about 9:20 p.m., Officer D'Ambrosia and CI went to the licensed premises and took seats at the bar. Officer Olive had arrived about 15 minutes earlier to be the backup officer. Officer Oliva was seated at the bar across from Officer D'Ambrosia and CI with a clear view of both D'Ambrosia and CI. There were at most five unidentified patrons at the bar on that evening. Brownyard was attending the bar. Officer D'Ambrosia and CI greeted at bar and, after approximately ten minutes, Brownyard approached Office D'Ambrosia and CI and stated "Those two girls are here if you are interested." Officer D'Ambrosia affirmed and Brownyard told Officer D'Ambrosia and CI that the cocaine would be in 2 one-gram bags. Brownyard then left the bar and walked to the area of the men's restroom. After approximately one minute, Brownyard left the area of the restroom and walked back to the bar. Brownyard approached Officer D'Ambrosia and CI. Brownyard placed a matchbox on the top of the bar and looked at Officer D'Ambrosia. Officer D'Ambrosia placed $160.00 on the bar counter and picked up the matchbox. Brownyard picked up the money and, after counting it, placed it in his pocket. Officer D'Ambrosia opened the matchbox and noticed two clear plastic zip-lock bags containing a white powdery substance. Office Olive observed the transaction. The two plastic bags bought and received from Brownyard contained cocaine. The conversation with Brownyard about drugs occurred in a normal tone of voice and Officer D'Ambrosia made no effort to conceal the sale on the premises. On May 14, 1984, at approximately 9:15 p.m. Officer D'Ambrosia entered the Riviera Resort Motel. Officer D'Ambrosia walked to the bar and sat down. Officer Wheeler had arrived before Officer D'Ambrosia as the backup officer. Officer D'Ambrosia entered into a conversation with the on-duty bartender named Janette about Brownyard. Janette stated that Brownyard had been fired. Janette told Officer D'Ambrosia that Brownyard had been fired by Chi Che, the bar manager (Arturo Muniz). At approximately 9:45 p.m., a patron later identified as Benee Scola entered the bar. Approximately 15 minutes later, Janette received a phone call from Brownyard. Janette advised Brownyard that Officer D'Ambrosia was at the bar looking for him. Brownyard told Janette that he would be at the bar in approximately 45 minutes. Janette relayed this information to Officer D'Ambrosia and at approximately 10:45 p.m., Brownyard entered the bar and sat down. D'Ambrosia and Janette approached and greeted Brownyard. Office D'Ambrosia asked Brownyard if "The two girls were around." Brownyard affirmed and stated that the price would be $80.00 per gram. Janette was in a position to hear this conversation. Officer Wheeler moved to a different part of the bar to get a better view of D'Ambrosia, Brownyard and Janette and to talk to Benne Scola. Brownyard asked D'Ambrosia if he was still interested in the "two girls" and Officer D'Ambrosia affirmed. Brownyard then obtained two matchboxes from Janette, who asked him (Brownyard) if one of the matchboxes was for her. Brownyard said yes. Brownyard left the bar and walked toward the men's restroom. Approximately two minutes, Brownyard returned and sat next to D'Ambrosia, placing a matchbox on top of the bar counter. The two clear plastic zip-lock bags containing cocaine were inside the matchbook cover. Officer D'Ambrosia pulled some currency from his pocket, counted out eight $20.00 bills and handed Brownyard the money below the bar counter. Officer D'Ambrosia picked up the matchbook, examined the contents, and placed it in his shirt pocket. Officer Wheeler did not see the exchange of money but observed the remaining portion of the transaction. On that evening, Chi Che entered the premises and set down two bar stools from Brownyard. Brownyard told D'Ambrosia that he had an argument with Chi Che about the liquor to carry at the bar and about accepting bad traveler's checks. After five or ten minutes, Chi Che left the bar. Janette asked Brownyard to watch the bar while she used the restroom. Brownyard agreed. Brownyard left the bar area after Janette returned from the restroom. D'Ambrosia states that Scola asked him (D'Ambrosia) if he knew where she could get some "blow." D'Ambrosia stated that she would have to talk to Brownyard. Brownyard returned to the bar and Scola approached him and asked about the going rate for blow. Brownyard stated $80.00 for a gram and $40.00 for a half gram. Brownyard said that he could handle a half gram right now. Scola agreed and handed Brownyard some currency. Brownyard took the currency, left the bar, existed the premises and returned approximately five minutes later. Brownyard handed Scola a small plastic baggie. Officer D'Ambrosia left the bar at approximately 7:30 and Officer Wheeler left approximately 15 minutes later. The conversations between Brownyard, Janette and Officers D'Ambrosia, Wheeler and Scola concerning the purchase of drugs occurred in normal tones of voice. Officer D'Ambrosia made no attempt to conceal the transaction. On May 18, 1984, at approximately 11:30 p.m., Officer D'Ambrosia entered the licensed premises in an undercover capacity. Janette was tending the bar. Officer Phillips was seated at the bar as the backup officer. Brownyard and Scola were also at the bar. Officer D'Ambrosia sat down and Brownyard approached him. D'Ambrosia asked Brownyard if he had any "stuff" with him tonight. Brownyard said "sure." D'Ambrosia asked if it was still the same price and Brownyard said "yes." D'Ambrosia said "OK." Brownyard left the bar and walked away from D'Ambrosia's view. About three minutes later Brownyard returned and placed a matchbox on the bar counter in front of D'Ambrosia. Officer D'Ambrosia pulled out four twenty dollar bills from his pocket and paid Brownyard. D'Ambrosia opened the match box up, lifted out a clear plastic zip lock bag containing suspected cocaine. Janette was in a position to see this transaction. Officer Phillips also observed this transaction. While tending bar, Janette spoke to Scola, "You want to go halves with me?" Scola stated that she would think about it since she had previously arranged a one half gram buy with Brownyard before officers D'Ambrosia and Phillips entered the bar. Janette later remarked that her boyfriend was later coming in with some medicine. Officer Phillips heard Scola and Janette discussing a cocaine deal. Janette told Scola it would be $35. Janette walked over to her boyfriend, Jeff Acosta, who gave her a small packet of aluminum foil. Janette gave the foil to Sonia and reminded her it was $35. Scola gave Janette two U.S. currency bills and told her to keep the rest as a tip. Janette gave Jeff the requested amount of the money. Scola later walked to the women's restroom. Officer Phillips later entered the women's restroom and observed Scola standing next to a toilet tank cover with an open packet of aluminum foil containing the suspected cocaine. Scola asked Officer Phillips to do a "line" with her, but Officer Phillips declined. Conversations at the bar area concerning the use of drugs occurred in a normal tone of voice. On May 25, 1984, at about 9:20 p.m., Officer Jenkins entered the licensed premises as a back up officer to Officer D'Ambrosia. At that time there were approximately six patrons in the bar area. Officer D'Ambrosia entered the premises approximately 9:25 and spoke to Janette about cocaine. Janette was told by Officer D'Ambrosia that the cocaine he bought from Brownyard was "poor quality" whereupon Janette allegedly admitted she was now dealing through her boyfriend Jeff. D'Ambrosia asked Janette if she would talk to Jeff about getting him some coke and she complied stating she would talk to him at about 10:10 p.m. when he (Jeff) entered the bar. D'Ambrosia approached and asked Jeff if he could get him an ounce and Jeff replied that he could. Later that night, D'Ambrosia and Jeff made a deal for one gram of coke that would be a sample for a future one ounce deal. According to D'Ambrosia, the purchase of one gram would take place on the next night, May 26, 1984. During that evening, Chi Che Muniz, the restaurant and lounge manager, entered the bar area. Officer D'Ambrosia approached Chi Che and told him that maybe Chi Che could pick up a woman if he did a couple of lines of coke. Chi Che refused. On May 26, 1984, at approximately 8:45 p.m., Officers D'Ambrosia and Jenkins entered the licensed premises. Shortly thereafter, Officer Aliva and Sergeant Roberts entered the bar. D'Ambrosia greeted Janette and had a general conversation with her. Janette asked D'Ambrosia if he had scored any cocaine and he reply "no." Janette stated that she would try and contact Jeff by phone because he had beeper. Janette made a short phone call from the bar and later told D'Ambrosia that she had left a message that he (D'Ambrosia) was at the bar. At approximately 9:30 p.m., a person later identified as Bill Hawkins entered the licensed premises. Bill approached Janette and told her that he was trying to locate some cocaine for her. Janette stated that she would buy a half from Bill for $35.00. Bill left the bar area and walked to the men's restroom. Officer Oliva went to the men's restroom. As Officer Oliva entered the restroom, he observed Bill changing clothes putting on a security uniform, complete with badge and night stick. Bill left the restroom and returned to the area. Bill told Officer D'Ambrosia that he worked part time as a security guard for Respondent on an as needed basis. At that time there were approximately 15 people in the lounge area. Bill Hawkins told Janette that the cocaine would be on the premises but that he would have to leave for a while to pick it up. Bill left for approximately 30 minutes and returned to the bar area. When he returned, he engaged in conversation with Bob Skirde. Janette later handed D'Ambrosia a small clear plastic zip-lock bag and asked D'Ambrosia to give it to Bill and tell him it was from me. D'Ambrosia complied with Janette's request. D'Ambrosia asked Bill if he had an extra half gram and Bill replied no that he could give D'Ambrosia "a nose full." Bill Hawkins then walked to the men's restroom where he found Officer Oliva who had previously arranged to buy a half gram of cocaine from Bill for $35. Bill asked Officer Olive to hold the door leading into the men's restroom while he did a line of coke. Officer D'Ambrosia observed Bob Skirde walk to the men's restroom and attempt to enter. Skirde was unable to enter the restroom inasmuch as Officer Olive was holding the door shut. Bill later approached Janette and asked her to get something to put it in. "Get me something." Janette handed Bill a napkin. Bill placed an object in the napkin, wrapped it up and gave it to Janette. Janette took the napkin and placed it in her purse. Janette later left the bar area and went to the restroom with what appeared to be the napkin she had received from Bill. Chi Che watched the bar while Janette was away. Officer D'Ambrosia states that he asked Janette "how was it?" and she replied "OK, but not as good as Jeff's." Later, Bill asked Officer D'Ambrosia to go to the men's restroom with him. Inside the restroom, Bill pulled out a clear plastic zip-lock bag containing suspected cocaine. Bill asked D'Ambrosia to do a couple of lines with him and he (D'Ambrosia) refused. D'Ambrosia asked Bill if he could purchase a half gram from him and Bill stated yes he would look into it. On June 1, 1984, at approximately 11:30 p.m., Officers D'Ambrosia and Jenkins separately entered the bar area. Officer Olive and Sergeant Roberts were there as back-up officers. D'Ambrosia talked to Jeff in Janette's presence about setting up a deal for an ounce of cocaine. Bill entered the premises and walked directly to Officer Jenkins. Bill and Officer Jenkins discussed cocaine and set up a deal for one gram to occur the next night at 7:00 p.m. On June 2, 1984, at approximately 7:10 p.m., Officer Jenkins entered the Riviera Resort Motel. Officer Jenkins asked an employee at the front desk if the bar was closed. The employee stated that it would be opened soon and suggest that she go to the patio bar. Sergeant Roberts was at the patio bar. Bill Hawkins called Officer Jenkins and they both walked to the patio bar. Janette was sitting on the patrons' side of the bar. At approximately 7:30 p.m., Janette left the patio bar to open the inside bar. Bill asked Beth, the patio bar attendant for a straw. Beth gave Bill a straw and stated that she knew Bill was not going to use it for his beer. Bill cut the straw to a length of approximately two inches and stated to Officer Jenkins "Let's go take care of business." Officer Jenkins and Bill walked to the inside bar. Janette was tending the bar and approximately two patrons were there. Officer Jenkins paid Bill $80 with money from her purse. Officer Jenkins extended the money to Bill over the bar counter and asked how the cocaine was packaged. Bill said "in a small plastic bag" and thereupon reached in his back pocket and pulled out his wallet. Bill laid the wallet on the bar counter and pulled back a flap which exposed a small clear plastic zip-lock bag containing suspected cocaine. Later analysis revealed the substance was in fact cocaine. This transaction was observed by Officer Roberts. Janette later came over to Bill and asked "if he wanted to work as a bell boy tonight because the front desk had called her." Bill was offered fond and drink for his services of helping with the luggage of the guests at the hotel. On June 4, 1984, Officer D'Ambrosia entered the Riviera Resort Motel and talked to Janette, the on-duty bartender. D'Ambrosia asked why Jeff was not at the bar. Janette replied that she would call Jeff about 10:30 or 11 p.m. and tell him that Officer D'Ambrosia was there at the bar. According to D'Ambrosia, Janette acknowledged that Jeff was to sell him (D'Ambrosia) a gram of cocaine. Officer D'Ambrosia left the bar and returned at approximately 10:45 p.m. D'Ambrosia and Jeff talked about setting up a deal for an ounce. On June 5, 1984, at about 8:10 p.m., D'Ambrosia telephoned Jeff at the Riviera Resort Motel to reschedule the drug deal to January 8, 1984 at 11:00 p.m. On June 8, 1984, at approximately 8:45 p.m., Officer D'Ambrosia arrested Tommy Brownyard outside the Rodeo Lounge. A search of Brownyard's person produced a quantity of cocaine. Between 10:00 and 10:30 p.m., Officer D'Ambrosia, Jenkins, Oliva, Wheeler, and Sergeant Roberts entered the Riviera Resort Motel and proceeded to the bar area. D'Ambrosia talked briefly with Jeff. D'Ambrosia pulled $1500 from his wallet and showed the money to Jeff. Jeff told D'Ambrosia that it would take him approximately 10 minutes to get the cocaine and he (Jeff) left. Jeff came back to the bar area in approximately 15 minutes. Jeff was then carrying a short black leather jacket over his shoulder. Sergeant Roberts observed a large clear plastic bag with cocaine stuck inside the jacket. Officer D'Ambrosia and Sergeant Roberts placed Jeff under arrest. The weight of the cocaine was determined to be 28.18 grams. The Respondent's Defense When Bob Skirde became responsible for total management of the Riviera, he inherited a security agreement with a service operated under contract with "Chief Bill Heinklein." The service provided one guard stationed at Riviera for patrol seven nights per week from 10:00 p.m. till 6:00 p.m. This service was terminated with Chief Heinklein's company on March 15, 1984 due to a seasonal decline in the occupancy in the hotel and due to unsatisfactory performance by guards supplied by Chief Heinklein. William (Bill) Hawkins was hired by the "Chief" in January of 1984 and was terminated on March 15, 1984 because he was sleeping on duty while at the Riviera. Subsequent to terminating the relationship with Heinklein's company, Robert Skirde hired security on an as needed basis when heavy occupancy was anticipated such as the Memorial Day weekend. In this regard, Walter Patskanick was hired to provide security services during that weekend. During the weekend of May 26, 1984, William Dale Hawkins was at the facility and offered to "help out" in a conversation with Chi Che in exchange for food and drink. Bill Hawkins did not receive any monetary compensation for any services he provided. Employees Chi Che hired Tommy Brownyard as a bartender on February 19, 1984. His pay was $25 per shift. His employment application indicated that he had worked as an internal revenue service agent from January, 1976 until January, 1982. On May 12, 1984, Brownyard was fired by Chi Che for failure to observe company rules and policy. On April 1, 1984, Chi Che hired Janette Hawkins to work the patio bar. Her pay was set at $25 per shift. Her employment application, as did the application of Tommy Brownyard, indicated that she had never been convicted of a crime. Following May 12, 1984, when Brownyard was fired, Janette was transferred to the inside lounge to work as bartender. Respondent denies having any knowledge of any specific work being performed by Bill Hawkins on June 1, 1984. In this regard, the evidence revealed that Bill was not on Respondent's payroll and did not receive any pay on that date. Further, Respondent denies that Bill Hawkins was an employee at any time following his termination on March 15, 1984. Upon the retention of Robert Skirde as the general manager of the Riviera Resort Motel, he (manager Skirde) immediately started to refurbish the facility and to generally upgrade the facility to serve the tourist market and to attract international tourists. The facility increased its occupancy more than 200 percent above the occupancy level that existed while the prior operator, Lodging Unlimited, operated the hotel. Manager Skirde has completely refurbished the lobby; has renovated the plumbing; has recarpeted all of the villas; has painted selected areas of the facility to "change the theme"; has repaired the south side of the roof; has spent in excess of $12,000 in landscaping has published another brochure which is being forwarded to travel agencies and, as stated earlier herein, has retained the services of the Hallandale Police Department to rid the facility of derelicts. Manager Skirde has been in the hotel business in excess of 24 years and in Florida for more than 12 years in that business. He started his employment in the Industry with the Sheraton Hotel Chain and has worked at several large tourist hotels in the area before being retained by the Respondent. Manager Skirde is the incoming President of the HSMA, a trade association of hotels and motels. Respondent has installed an electronic device which can contact police during an emergency, as needed. While Respondent used Chief Heinklein's services to provide security at the facility, manager Skirde reviewed a log book which was maintained by the security personnel, a daily basis, immediately after he got to the facility each morning. During May, 1984, occupancy declined significantly at the hotel and, for that reason, manager Skirde cut back on security and other areas until the season picks up during mid- July, 1984. Prior to that time, there had been no evidence of any drug transactions either by employees or patrons, by management or other persons involved in the operation of the Respondent's facility. During manager Skirde's tenure, he has issued several memos concerning problems with security and other means of maintaining security at the facility. At his arrival at the facility each morning, he usually "walked the property off and has instructed all employees that they can contact him on a 24- hour basis if needed." Manager Skirde has a policy of prohibiting employees from being on the property after their normal work hours have ended. Additionally, manager Skirde has instructed employees to contact him at any hint of drug activity. Manager Skirde has never overheard any conversation regarding drug use on the premises of the Riviera motel. Manager Skirde has not seen any memo published by the Petitioner as to a drug educational program for licensees. Elvis Reyes, a resident of New York City, New York, is employed by DBG properties, the owner of the Respondent's facility as an internal security officer. As part of his duties as an internal security officer, Reyes visits various properties owned by DBG properties unannounced and, in that connection, visited the Riviera Motel on May 2, 1984. Part of his instructions were not to divulge his affiliation with the parent company. During Reyes' visit to the Riviera Resort Hotel on May 2, 1984, he was there for the specific purpose of trying to find drugs on the property, either through the use by patrons or the sale of drugs in the bar areas. When Reyes went to the facility, he visited the lounge on May 2 and while in the bar lounge, there were 3 people present, 2 of whom were bartenders and 1 patron. Reyes asked the bartenders and the 1 patron if they knew where he could get some "toot" or some "blow." On each occasion, Reyes got a negative response. Reyes returned to the lounge on May 3 and again tried to buy some drugs from both the on-duty bartenders and the patrons without any success. Mr. Reyes filed a report with his superior, a Mr. Fruitbind of DBG properties in New York City, and related to him that there was no evidence of drugs being used on the premises by either patrons or employees. (Respondent's Exhibit 5.) Dr. Robert Baer is the holder of a doctorate degree in Public Affairs and Administration and is employed at Nova University in Ft. Lauderdale. Dr. Baer has extensive educational training and experience in drug detection training and experience in the installation of security measures at hotel facilities. Dr. Baer served as a police officer with the Metro-Dade County Police Bureau from 1971 through 1977. He has served as an Officer in the Narcotics Unit and in the Organized Crime Bureau. Dr. Baer was received as an expert in these proceedings in surveillance, drugs and narcotics usage in hotels. Based on Dr. Haer's interview of Respondent's management team and the security service in force at the facility, he concludes that the security at Respondent's facility is at least average or better than average. His opinion was based on his study of the area which is a low crime area, the fact that police officers frequent the area in the lounge and they regularly are seen patroling the area. Based on the following reasons, Dr. Baer felt that security at the Respondent's facility was more than adequate: The security personnel are told not to go into the bar area; The Security Director goes into the bar on a daily basis; Brownyard was fired for dereliction of duties; There was a penetration study conducted by Internal Security Officer Hayes, and Management was unaware of any problems relative to drug usage by either employees or patrons.
The Issue At issue in this proceeding is whether Respondent Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, Section of General Regulation has violated Section 120.535 F.S. by adoption of a policy which meets the definition of a "rule" under Section 120.52(16) F.S., without complying with the rulemaking procedures established by Section 120.54 F.S.
Findings Of Fact Petitioner originally applied and was licensed as a yacht and ship salesman in June, 1992. To be a salesman, one must be associated with a licensed broker who prominently displays the salesman's license. On April 15, 1994, Petitioner contacted Respondent agency by telephone to discuss renewal of his salesman's license issued June 3, 1992 and due to expire under its own terms on June 3, 1994. At that time, Kathy Forrester told Petitioner that his file reflected that his license had been "cancelled" effective March 10, 1993 due to a letter received on or about March 1, 1993 from Petitioner's employing broker, Frank Stanzel. Mr. Stanzel's letter showed that he was relocating his business from Miami to Ft. Lauderdale and that he wanted his two salesmen's licenses transferred to the new location. He enclosed with his letter the two salesmen's licenses for agency action, as required by agency rules. Mr. Stanzel further reported that Petitioner had left his employ on October 19, 1992, taking his license with him, so Mr. Stanzel could not return Petitioner's license to the agency. On March 22, 1993, five months after Mr. Stanzel heard the last of Petitioner and approximately three weeks after he notified the agency of Petitioner's leaving his employ, Mr. Stanzel's broker's license expired. Under the terms of the agency rules, Mr. Stanzel was required to apply for a new license. He applied. His broker's license was not renewed retroactively, and his new license became effective August 30, 1993. For approximately five months, from March 22, 1993 to August 30, 1993, Mr. Stanzel was not a licensed Florida broker. Neither Mr. Stanzel nor the Respondent agency notified Petitioner of this fact nor did anyone notify Petitioner at that time that his salesman's license was deemed "cancelled" during the broker's lapse. After finding out for the first time on April 15, 1994 that the agency presumed his salesman's license "cancelled" by Mr. Stanzel's notification that Petitioner had taken his salesman's license and left Mr. Stanzel's employ, Petitioner and his father prevailed upon Mr. Stanzel to execute an affidavit dated May 19, 1994 to the effect that Mr. Stanzel had misunderstood, now believed Petitioner had been diligently working at yacht sales after October 19, 1992, and wanted Petitioner's salesman's license reinstated. The affidavit was submitted to the agency. Although Ms. Forrester had misgivings about the affidavit, the agency reinstated Petitioner's salesman's license effective April 29, 1994, after receiving the affidavit (TR 25-28). The reinstated license still had the original expiration date of June 3, 1994. The agency did not reinstate Petitioner's salesman's license retroactive to October 19, 1992 when Petitioner went into construction work fulltime, to the date of Mr. Stanzel's original broker's license expiration, or to the date of Mr. Stanzel's new broker's license. Petitioner accepted his salesman's license as reinstated. Petitioner did not renew his salesman's license on June 3, 1994, so it expired by its own terms. On July 21, 1994, Petitioner filed an application to be licensed as a yacht and ship broker, together with the required bond, fee, and fingerprints. On August 2, 1994, Peter Butler, Head of the Section of Yacht and Ship Brokers, wrote Petitioner a deficiency notice, explaining that the agency regarded Petitioner's salesman's license "cancelled" during the lapse of his employing broker's license. The agency has no rule which specifically states that when an employing broker's license expires, his salesmen's licenses are automatically cancelled. The language employed in the deficiency notice was, "any salesman licenses held by [the employing broker] were considered cancelled (sic) for that period of time [the period while the employing broker's license was expired/lapsed] because they did not have an actively licensed broker holding their license." [Bracketed material added for clarity.] This language is the focus of this proceeding. The deficiency notice did not refer to the prior "cancellation" of Petitioner's salesman's license based on Mr. Stanzel's March 1, 1993 notice that Petitioner had left his employ effective October 19, 1992. The deficiency notice cited Section 326.004(8) F.S. [1993] which provides: Licensing.- (8) A person may not be licensed as a broker unless he has been a salesman for at least 2 consecutive years, and may not be licensed as a broker after October 1, 1990, unless he has been licensed as a salesman for at least 2 consecutive years. Bob Badger, an agency investigator, submitted a report to Mr. Butler dated September 1, 1994 expressing his opinion that even with Mr. Stanzel's after-the-fact affidavit, Petitioner's salesman's license would have been interrupted by the fact that he had no licensed broker holding his salesman's license during Mr. Stanzel's broker's license lapse of five months. He further concluded that Petitioner's salesman's license was "suspended" for a short period for not renewing his salesman's license bond. After review of the investigation report, on September 19, 1994, the agency issued its Intent to Reject Petitioner's broker's application pursuant to Rule 61B-60.002(6) F.A.C. alluding to the deficiency notice and citing Section 326.004(8) F.S., for Petitioner's failure to complete two consecutive years as a salesman. Section 326.004(14)(a) and (b) F.S. and rules enacted thereunder clearly place on the broker the responsibility of maintaining and displaying the broker's and salesmen's licenses as well as providing for a suspension of a salesman's license when a broker is no longer associated with the selling entity. Typically, salesmen turn in their licenses through the original broker for cancellation by the agency and receive new ones when they move from one broker's oversight to another's. Salesmen who are employed by one broker also switch their salesman's licenses to another active broker whenever the first broker disassociates from a yacht sales company and moves to another company, quits, retires, or lets his broker's license lapse. Due to the common dynamics of the employment situation whereby salesmen are under the active supervision of their employing broker in the company office, they usually know immediately when a broker's license is in jeopardy or the broker is not on the scene and supervising them. This knowledge is facilitated by the statutes and rules requiring that all licenses be prominently displayed in the business location. Anybody can look at anybody else's license on the office wall and tell when it is due to expire. If licensees are in compliance with the statutes and rules, no active salesman has to rely on notification from the agency with regard to the status of his own or his broker's license. In the present case, Petitioner removed himself from all contact with Mr. Stanzel as of October 19, 1992. Therefore, he did not know what was occurring in the office or with any licenses. All agency witnesses testified substantially to the effect that since they have been employed with the agency and so far as they could determine since its inception, agency personnel have relied on Sections 326.002(3), 326.004(8), 326.004(14)(a) and (b) F.S. and Rules 61B-60.005 and 61B-60.008(1)(b) and (c) F.A.C. to preclude licensing someone who has not been actively supervised by a Florida licensed employing broker for two consecutive years. More specifically, agency personnel have always applied Sections 326.004(14)(a) and (b) to place on the broker the responsibility of maintaining and displaying the broker's and salesman's licenses as well as providing for a suspension of the salesman's license when his broker is no longer associated with the sales entity. The agency has always interpreted the word "broker" as used in Chapter 326 F.S. and Chapter 61B-60 F.A.C. to mean "Florida licensed broker." See also, Section 326.002(1) and 326.004(1) F.S. and Rule 61B-60.001(1)(g) F.A.C. These interpretations are in accord with the clear language of the applicable statutes and rules. Petitioner unsuccessfully attempted to show that he had received treatment different than others similarly situated.
The Issue Whether or not the, Respondent, Buenaventura Lakes Country Club, Inc., may be issued Division of Beverage, license number 7-COP-59-2, for use at 301 Buenaventura Boulevard, Kissimmee, Florida.
Findings Of Fact The Petitioner and Respondent stipulated and agreed to the underlying facts which they deemed to have necessary application in considering the question of the propriety of the Respondent issuing the Division of Beverage, license number 7-COP-59-2 to the Petitioner for use at 301 Buenaventura Boulevard, Kissimmee, Florida. Notwithstanding the lack of dispute in facts surrounding this issue, the Respondent and Petitioner have requested the undersigned to examine those facts and to offer conclusions of law on the dispute. In the course of the presentation, it was agreed that Mr. Norman J. Smith, attorney for the Petitioner, would be allowed to set forth the factual stipulation for the record. Mr. Smith indicated that the official description of the license was, Division of Beverage, license number 7-COP-59-2. It was stated that the Petitioner is now a qualified motel and restaurant as set forth in Florida Statute, 561.20, which describes those establishments which would qualify for a "special" beverage license. It was further indicated that when the license in question was issued originally it was not issued to such a qualified hotel, motel or restaurant as set forth in Florida Statute, 561.20, which established the requirements for issuance of a "special" beverage license, and that when the subject license was transferred to the present location, that the motel and restaurant, at the present location, was not such a qualified hotel, motel or restaurant in accordance with Florida Statute, 561.20, which established those requirements for issuance of a "special" beverage license. However, as of October 21, 1975, and as of the application date for license transfer, filed by the Petitioner, by improvements and physical changes to the edifice, (location where the license currently is housed), would meet the definitional requirements of Florida Statute, 561.20, which sets forth the qualifications for "special" beverage licenses to be issued to a hotel, motel or restaurant. This qualification referred to as of October 21, 1975, and as of the date of application, applies to the section on hotels/motels and restaurants. That is to say the establishment would qualify under the standards for a hotel/motel or under the standards for a restaurant. It was further established that the application which was filed by the Petitioner was duly filed with the Division of Beverage upon form, DBR-704L, which is the application for the transfer of an alcoholic beverage license in this type request. Mr. Smith stated that the Petitioner understood that the letter of August 21, 1975, from the Director of the Division of Beverage, addressed to the Petitioner, stated the only basis for denying the application which had been filed by the Petitioner, and Mr. Hatch, attorney for the Respondent, agreed that there were no other grounds for disapproving the license application other than the one established in the letter from Mr. C. A. Nuzum, Director of the Division of Beverage. It was more specifically developed that the language which was relied upon to deny the application was that language set forth in Florida Statute, 561.20(2)(a)(3), "... However, any license heretofore issued to any such hotel, motel, motor court, or restaurant or hereafter issued to any such hotel, motel, or motor court [including a condominium accommodation] under the general law shall not be moved to a new location, such license being valid only on the premises of such hotel, motel, motor court, or restaurant." Mr. Hatch, in behalf of the Respondent, agreed to the accuracy of the depiction of the stipulation as stated for the record by Mr. Smith. The parties through their respective attorneys then offered oral argument on the law as it relates to the Petitioner's request for issuance of a license at the aforementioned location. Additionally, Mr. Bishop, a licensing supervisor with the Division of Beverage, was called to testify concerning his interpretation of the operation of Florida Statute, 561 as it pertains to license applications, moves, and transfers. One further item was offered in the way of a stipulation, and that is an agreement on the part of Mr. Smith, for the Petitioner, to allow examination of two memoranda offered by the Respondent as part of its argument. Mr. Smith indicated that he had a copy of the memoranda and that he had no objection to the use of that memoranda in the way of argument in behalf of the Respondent. Upon that representation the undersigned was provided with a copy of the Respondent's memoranda and has considered the same in addressing the legal issue.
Recommendation It is recommended that the application for transfer as filed by the Respondent, Buenaventura Lakes Country Club, Inc., to transfer Division of Beverage, license number 7-COP-59-2 from its present location to 301 Buenaventura Boulevard, Kissimmee, Florida, be granted. DONE and ENTERED this 20th day of November, 1975, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Norman J. Smith, Esquire Brinson and Smith, P. A. Post Office Drawer 1549 Kissimmee, Florida 32741 William A. Hatch, Esquire Department of Business Regulation Division of Beverage 725 Bronough Street Johns Building Tallahassee, Florida 32304
Findings Of Fact On or about September 21, 1981, Respondent, Ft. Myers Banana Boat, Inc., d/b/a Banana Boat, applied to enter the drawing for eight new quota liquor licenses for Lee County to be held on December 16, 1982. The application disclosed that Dykes J. Riggs and James G. Kincaid each owned fifty percent of the stock of the Respondent and served as president and secretary, respectively. On or about January 5, 1983, Respondent was notified that it had been selected in the drawing as one of the preliminary applicants. In late February or early March 1983, Respondent filed its application for licensure. The application again disclosed Dykes Riggs as president and James Kincaid as secretary. It added that Kincaid also served as treasurer. It omitted any reference to stock ownership. On or about July 22, 1983, Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), issued Respondent license number 46-1146, Series 4-COP, for the address 9100 South Cleveland Avenue, Ft. Myers. Because the location was unsuitable, Respondent, by letter dated August 5, 1983, requested the Division to place its license in escrow, and the escrow was "finalized" on or about January 31, 1984. The license remained in escrow until on or about November 30, 1984. While the license was in escrow, Riggs began to have serious doubts about the trustworthiness of Kincaid. In addition to their interests in Respondent, Riggs and Kincaid also had interests in two other licensed businesses--Boca Banana Boat, Inc., and The Banana Boat of Pompano, Inc. (A third individual, Don Litzenberger, also had an interest in the Boca Banana Boat, Inc.) Kincaid was suffering from acute alcoholism and was in heavy debt. Riggs was concerned that Kincaid would transfer his interest in Respondent or one of their other licensed businesses in order to satisfy a portion of his debts. Riggs was concerned about having a substitute business associate with whom he would have to work. Although not his primary concern, Riggs also was concerned that, by transferring his interest in Respondent, Kincaid would be violating Section 561.32(4), Florida Statutes (1983), and that Respondent would lose its license. Riggs also was concerned because Kincaid had told him of the pendency of administrative proceedings against Kincaid in connection with two other licenses in which Kincaid had an interest. Subsequently, Riggs learned that Kincaid had given a creditor named Wagner a power of attorney over all Kincaid's interests. Riggs did not like Wagner and suspected that Wagner was of bad moral character and may not be qualified for licensure by the Division. If disqualified for licensure, Wagner's interests in Respondent and the other licensed businesses in which Riggs and Kincaid had interests would jeopardize the licenses. In addition, a transfer of interest in Respondent from Kincaid to Wagner would violate Section 561.32(4), Florida Statutes (1983). During this period, Riggs also suspected that Kincaid was stealing money from the operation of The Banana Boat of Pompano, Inc. To deal with all of these business problems with Kincaid, Riggs had Kincaid's name taken off all bank accounts of the three licensed businesses in which they shared interests and refused to allow Kincaid any further say in the operation or the businesses or to review the books and records of any of the corporations through which the businesses were operated. Kincaid sued Riggs, Respondent and Boca Banana Boat, Inc., for damages. Riggs consulted with his attorney, Ernest Alexas, and decided to enter into a Settlement Agreement with Kincaid on or about June 29, 1984. Under the Settlement Agreement, Riggs would pay Kincaid $10,000, and Kincaid would "execute all necessary stock transfers, releases and other documents necessary" to "assign [to Riggs] all of his right, title and interest" in the three corporations through which Riggs and Kincaid operated licensed businesses, including Respondent. The documents were to be held in escrow by Alexas pending payment of $106,000 to Kincaid. The agreement then provided that the documents in escrow would be "delivered" to Riggs or the three corporations. The agreement also provided that Kincaid would dismiss his damage suits against Riggs, Respondent and Boca Banana Boat, Inc., and that Kincaid would resign "from all offices and positions as director held by him" in the three corporations, including Respondent. By September 18, 1984, the parties had performed all of the obligations under the June 29, 1984, Settlement Agreement. Kincaid had dismissed the damage suits. Boca Banana Boat, Inc., had pledged assets to secure a loan of $106,000, which was paid to Kincaid and Wagner. However, acting upon the advice of his attorney, Alexas, Riggs decided to instruct Alexas to continue to hold the documents in escrow for the time being. No decision was made whether Kincaid's stock should be placed in Riggs' name individually, placed in Respondent's name as treasury stock, placed partially in the name of Boca Banana Boat, Inc., or retired. In any case, Alexas advised Riggs that no violation of Section 561.32(4), Florida Statutes (1983), would occur unless the stock were transferred within the statutory three-year time period which was due to expire in approximately August 1986, to someone other than Riggs or to a corporation or partnership in which someone other than Riggs held an interest. Riggs himself was unclear exactly what Kincaid's relationship to Respondent was after September 18, 1984. Riggs' purpose in settling with Kincaid was to eliminate any and all control Kincaid might have over Respondent and the other corporations involved in the settlement. At the same time, Riggs thought Kincaid still should be obligated personally for his share of the debts of the corporations. Riggs hoped that, by leaving the documents in escrow and by not changing officers and directors on the corporate books, this would be accomplished. In November 1984, Riggs began the process of applying to have Respondent's license taken out of escrow and issued to a location at 865 San Carlos Boulevard, Ft. Myers Beach. On the application which Riggs signed, Riggs was listed as fifty percent stock owner and president. James G. Kincaid still was listed as fifty percent stock owner and secretary/treasurer. The Division took the license out of escrow, placed it at the new address and changed it to a Series 3-PS license. However, the Division did not prove that Riggs intended to mislead personnel of the Division in the performance of their official duty by referencing Kincaid on the application. First, the evidence was that Riggs was following the advice of his lawyer, Alexas, which he trusted and believed, that the elimination of Kincaid did not violate Section 561.32(4), and Riggs did not think there was any reason to mislead the Division by not disclosing the Settlement Agreement. Second, the evidence was that Division personnel helped Riggs' wife complete the application using information on prior applications, including Kincaid's interest. Finally, the evidence was that Riggs himself did not really know or understand Kincaid's precise legal status in relation to Respondent as of November 30, 1984.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a Final Order dismissing the Notice to Show Cause against Respondent, Ft. Myers Banana Boat, Inc., d/b/a Banana Boat, in this case. RECOMMENDED this 20th day of January 1987 in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 20th day of January 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2307 To comply with Section 120.59(2), Florida Statutes (1985), rulings are made on the parties proposed findings of fact. Petitioner's Proposed Findings Of Fact. 1-10. Accepted and incorporated to the extent not subordinate or unnecessary. But as to the second paragraph of proposed finding 4, only the date the application was filled out was in error in all likelihood; the substance and rest of Mrs. Riggs' testimony is accepted as true. Respondent's Proposed Findings Of Fact. 1-7. Accepted and incorporated to the extent not subordinate or unnecessary, except that the first two-and-one-half lines of proposed finding 4, including the date "October of 1984," are rejected as contrary to the greater weight of the evidence and facts found. Subordinate. Rejected as contrary to the greater weight of the evidence and facts found. Accepted and incorporated to the extent not subordinate or unnecessary except the date probably was November 29, 1984. First two sentences rejected as contrary to the greater weight of the evidence and facts found. Sarnonski filled out part of the application and advised Mrs. Riggs how to fill out the rest, including the references to Kincaid, by reference to information in the prior application. Third sentence accepted but subordinate and unnecessary. 12.-14. Subordinate and unnecessary. 15. Accepted and incorporated. COPIES FURNISHED: Louisa E. Hargrett, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Leslie T. Ahrenholz, Esquire Post Office Box 2656 Ft. Myers Beach, Florida 33931 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Bell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 =================================================================
The Issue The issues in this case are as set forth in the attached copy of the Notice to Show Cause and by its attachment this copy becomes a part of the Recommended Order. This Notice to Show Cause in its various counts raises the question of whether the action of the Respondent which took place on March 21, 1978, through its "bar spending" practice (i.e., the practice of a representative of manufacturer or a wholesaler purchasing drinks for consumers at the premises of a retail licensee) has violated the provisions of Subsection 561.42(1), Florida Statutes.
Findings Of Fact By agreement and stipulation the parties, in the person of their counsel, have offered a Statement of Facts. This Statement of Facts is accepted by the Hearing Officer to be the evidential fact determination from which the outcome of the matters here in dispute will be concluded. To that end the Statement of Facts is attached to this Recommended Order and made a part of the Recommended Order. This stipulation of the Statement of Facts appears as it was offered at the time of the formal hearing conducted on May 22, 1979. The Respondent, as a brewer of malt beverages licensed under the laws of Florida, has been charged with the giving of financial aid and assistance to a number of vendors licensed by the State of Florida. There are sixteen licensed vendors named in the allegation in eighteen separate counts. This activity on the part of the Respondent has purportedly violated the conditions of Section 561.42, Florida Statutes (1977), which contains the following language: Section 561.42 Tied house evil; financial aid and assistance to vendor by manufacturer or distributor prohibited; procedure for enforcement; exception.-- No licensed manufacturer or distributor of any of the beverages herein referred to shall have any financial interest, directly or indirectly, in the establishment or business of any vendor licensed under the Beverage Law, nor shall such licensed manufacturer or distributor assist any vendor by any gifts or loans of money or property of any description or by the giving of any rebates of any kind whatsoever. No licensed vendor shall accept, directly or indirectly, any gift or loan of money or property of any description or any rebates from any such licensed manufacturer or distributor; provided, however, that this shall not apply to any bottles, barrels, or other containers necessary for the legitimate transportation of such beverages, or advertising materials, and shall not apply to the extension of credit, for liquors sold, made strictly in compliance with the provisions of this section. This particular provision of law has application to the malt beverage business through the finding of the Florida Supreme Court in Castlewood International Corp. vs. Wynne, 294 So.2d 321 (Fla. 1974). The specific portions of Subsection 561.42(1), Florida Statutes (1977), which are at issue in this cause, are those provisions dealing with the meaning of the words "gifts" and "rebates" found in the subject Subsection. (The parties, in the course of their argument, conceded that the portion of that Subsection dealing with loans of money or property is not to be regarded.) In determining the meaning of the words "rebates" and "gifts", as set forth in Subsection 561.42(1), Florida Statutes (1977), the Petitioner has promulgated rules in the Florida Administrative Code which define those terms. The recitation of those roles is as follows: 7A-1.09 Rebate. The term 'rebate' (often referred to as accumulative promotion or retroactive discount) shall include any refund or discount made or allowed other than such discounts as are permitted under Section 561.42, Florida Statutes; and as such they are prohibited. 7A-1.10 'Gift'. The term `gift' shall apply to the giving of free goods or things of value as a discount not otherwise permitted by law or reward for purchasing any given quantity of alcoholic beverages whether at one time or over a period of time; and as such they are prohibited. A close reading of the role definition of "rebate", establishes that rebates as considered in cases interpreting the meaning of the beverage laws in the State of Florida; rebates which constitute accumulative promotion or retroactive discounts; and refunds or discounts made or allowed other than such discounts permitted under Section 561.42, Florida Statutes, are prohibited by Subsection 561.42(1), Florida Statutes, as implemented by the definitional statement found in Rule 7A-1.09, Florida Administrative Code. This definition found in the rule establishes the parameters for prosecuting claims against this Respondent. Likewise, the definition found in Rule 7A-1.10, Florida Administrative Code, dealing with the term "gifts" sets the limits beyond which Petitioner may not venture in its efforts to penalize the Respondent for alleged violations of Subsection 561.42(1), Florida Statutes (1977) premised on the theory that the licensee has given a vendor a gift. "Gift" within the meaning of the rule is constituted as the giving of free goods; the giving of things of value as a discount not otherwise permitted by law; or the giving of a reward for purchasing any given quantity of alcoholic beverages either at one time or over a period of time. In examining the numerous possibilities for establishing a "rebate" or "gift", the most reasonable beginning is to establish those discounts which are allowed. The reference in the rule defining "rebate" describes this form of discount as a discount permitted by Section 561.42, Florida Statutes. In particular, Subsection 561.42(6), Florida Statutes (1977), provides: (6) Nothing herein shall be taken to forbid the giving of trade discounts in the usual course of business upon wine and liquor sales. Therefore, any discount given in the usual course of business is allowed. Moreover, in view of the construction of the grammar in Rule 7A-1.09, Florida Administrative Code, dealing with "rebates", any refund given in the ordinary course of business will be allowed. Turning to that element of the definition of "gifts" found in Rule 7A-1.10, Florida Administrative Code, which establishes that discounts net otherwise permitted by law are prohibited, when that language is considered in view of the statement of Subsection 561.42(6), Florida Statutes (1977), it demonstrates that trade discounts in the usual course of business are not gifts. A discount in the usual course of business is defined in Subsection 561.01(10), Florida Statutes (1977), which states: 'Discount in the usual course of business means a cash discount given simultaneously at the time of sale. The same discounts shall be offered to all vendors buying similar quantities. Any discount which is in violation of this section shall be considered an arrangement for financial assistance by gift. The next point in the inquiry is whether the activities in the case sub judice, constitute the giving of a discount in the usual course of business from the manufacturer to vendors. Obviously, the answer is no. Whatever final characterization should be given the activities, they were not cash discounts given simultaneously at the time of a sale between the manufacturer and vendors in the sixteen establishments. Consequently, the conflict must be resolved by the systematic analysis of the remaining terms and phrases found in the definitions set out in Rules 7A-1.09 and 7A-1.10, Florida Administrative Code. The first of these terms and phrases to be examined is the term "rebate". This terminology involves a consideration of the meaning of the term "rebate" in its common meaning and the term "rebate" as specifically defined in the subject rule, as being an accumulative promotion or retroactive discount. The Petitioner in its Proposed Recommended Order advances the economic theory that a vendor may not assume that his products will be sold within a given period or at a given price. Under this theory, the Respondent's purchase of the beer at retail prices reduced the vendor's cost of acquisition giving him a so-called automatic and predictable profit, thereby effecting a "rebate" of the vendor's purchase price by increasing cash flow and giving a guaranteed profit to the vendor. This theory in the mind of the Petitioner is supported by the fact that when free beer was given to customers of a vendor, the reasonable implication is that the vendor would give away more products during the free beer party time sequences then he would normally sell during the free beer party time sequence. That hypothetical may be true; however, the facts stipulated to in the course of this hearing do not establish that more beer was consumed on the premises because it was given away than would have been the case if the patrons had to pay the retail price, and no official notice or recognition can be taken of that proposal. To establish the desired facts, the Petitioner would need to have proved these facts or gained a stipulation from the Respondents to that effect. Having failed to establish the increased volume theory, the Petitioner is unable to demonstrate increased profits due to increased volume, ergo there is no "rebate" or retroactive discount that has been shown by the Petitioner in its proof. Moreover, the ordinary meaning of the word "rebate" does net lend itself to the establishment of a "rebate" by the evidential facts adduced in this hearing. (See Black's Law Dictionary, Revised Fourth Edition's definition of the term "rebate".) Again, looking at the definition of "rebate" in the subject role dealing with the terms "refund" or "discount", there is no showing that the Respondent was repaying, making restoration or returning money to the vendors as a form of restitution or repayment when it purchased the alcoholic beverages for the benefit of the patrons of the vendor, (see Black's Law Dictionary, Revised Fourth Edition's definition of the term "refund", and it has already been concluded that the payment from the manufacturer to the vendor was not a retroactive discount. There is no showing that the vendors paid any less than usual when they purchased the products which were subsequently given away to the general public and paid for by the Respondent at the usual prices. The Petitioner has also failed to prove that the "bar spending" constituted a "gift" within the meaning of Rule 7A-1.10, Florida Administrative Code. The free goods that were given were goods given to the general public and, absent a showing that the volume of sales would have been increased due to Respondent's purchase of the alcoholic beverages, it cannot be shown that the vendors were extended free goods. (The discount theory offered under the definition of "gift" has been discussed in examining the meaning of the word "rebate", and no further reference is necessary.) Additionally, it has not been shown that any form of reward was extended to the vendors for purchasing given quantities of alcoholic beverages either upon a single event or over a period of time, because the proof is insufficient to demonstrate that any greater volume of alcoholic beverage was sold under the "bar spending" arrangement, than would have bean sold ordinarily and having failed to make that showing, it cannot be successfully argued that the vendors reaped the rewards of extra profits from the activities which transpired in their licensed premises, either as direct profits on sales or tips for its employees. Finally, the Petitioner's assertion that the mere act of having the promotional staff of the Respondent put on the bar party constituted a "gift" or reward is not convincing for reason that the proof does not indicate that particular benefit. In summary, Petitioner has failed to prove that the activities constituted "rebates" or "gifts" within the meaning of Subsection 561.42, Florida Statutes (1977), and although the Petitioner may be philosophically opposed to the arrangement which this Respondent had with the several vendors to promote "bar spending" in the licensed premises of the vendors, to reach that result it would be necessary to strain the construction of Subsection 561.42(1), Florida Statutes (1977), and its attendant Rules 7A-1.09 and 7A-1.10, Florida Administrative Code, beyond allowable bounds. The parties have availed themselves of the opportunity to submit Proposed Findings of Fact, Conclusions of Law and Recommendations and to the extent that these proposals are consistent with this Recommended Order they have been considered and utilized; to the extent that they are inconsistent with this Recommended Order, they are, after consideration, specifically rejected.
Conclusions Respondent is ordered to pay a civil penalty in an amount equal to the actual consideration paid the 16 vendors and 18 counts on the Notice to Show Cause, attached hereto and incorporated herein as Exhibit "B". Where tips were paid, 15 percent of the actual consideration paid to the particular vendor is assessed as a penalty. DONE and ORDERED this * day of September, 1979, in Tallahassee. CHARLES A. NUZUM, DIRECTOR Division of Alcoholic Beverage and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 (904) 488-7891 * NOTE: The Final Order filed with DOAH has an unreadable issue date; the 30th has been used for the ACCESS Index.
Recommendation It is recommended that the allegations in this cause be DISMISSED. DONE AND ORDERED this 15th day of June, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Dennis LaRosa, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 T. Michael Carpenter, Esquire Associate General Counsel and Donald S. McDonald, Esquire, General Counsel Anheuser-Busch, Inc. 721 Testalozzi Street St. Louis, MO 63118 Paine Kelly, Jr., Esquire Macfarlane, Ferguson, Allison & Kelly Post Office Hex 1531 Tampa, Florida 33601 Attachment 1 STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF BEVERAGE TALLAHASSEE, FLORIDA NOTICE TO SHOW CAUSE - NOTICE OF INFORMAL CONFERENCE NOTICE TO SHOW CAUSE WHY YOUR DIVISION OF BEVERAGE LICENSE/CIGARETTE PERMIT SHOULD NOT HAVE A CIVIL PENALTY ASSESSED AGAINST IT OR BE SUSPENDED OR REVOKED. LICENSE OR PERMIT NUMBER 26-1312 YOU ANHEUSER-BUSCH, INC. TRADING AS ANHEUSER-BUSCH, INC. LOCATED 111 Busch Drive, Jacksonville Florida are hereby notified by the Director of the Division of Beverage, Department of Business Regulation, State of Florida, that he has been presented certain evidence which, if true, is good and sufficient cause for him, pursuant to Section 561.29/210.16, Florida Statutes, to assess a civil penalty against or to suspend or revoke your Division of Beverage license/permit, license/permit number 26-1312 issued to you by the State of Florida under the laws of Florida for the current license year, or any renewal thereof, over which the Division of Beverage has jurisdiction said cause being for any one of the following: On or about the 21st day of March, 1978, you ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did financially assist a retail vendor, to wit; SUDER-GOODRICH, INC., DBA MAC'S BAR, Licence number 74-452, located at 2000 S. Atlantic Avenue, Daytona Beach Shores, Volusia County, FL, by the giving of a gift, loan of money or property or by the giving of a rebate, to wit; check, check number 2, in the amount of $361.00, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT, and endorsed by SUDER GOODRICH, INC. MAC'S BAR, contrary to F.S. 561.42 (1). On or about the 21st day of March, 1978, you ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employe, to wit; JACK FORST, did assist financially, a retail vendor, to wit; GREGORY L. CALDWELL, DBA THE PUB, License number 74-837, located at 3304 S. Atlantic Avenue, Daytona Beach Shores, Volusia County, FL, by the giving of a gift, loan of money or property or by the giving of a rebate, to wit; a check, check number 4, in the amount of $210.00, dated March 21, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by THE PUB, contrary to F.S. 561.42(1). On or about the 21st day of March, 1978, you ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING, did assist financially, a retail vendor, to wit; 427 N. ATLANTIC AVE., INC., DBA BIG MOTHERS, License number 74-210, located at 525 N. Atlantic Avenue, Daytona Beach, Volusia County, Florida, by the giving of a gift, loan of money or property or by the giving of a rebate, to wit; a check, check number 1, in amount of $440.00, dated March 21, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by BIG MOTHERS DISCO, 427 N. ATLANTIC., INC., contrary to F.S. 561.42(1). On or about the 21st day of March, 1978, you ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING, did assist financially, a retail vendor, to wit; 427 N. ATLANTIC AVE., INC., DBA BIG MOTHERS, License number 74-210, located at 525 N. Atlantic Avenue, Daytona Beach, Volusia County, Florida, by the giving of a gift, loan of money or property or by the giving of a rebate, to wit; a check, check number 2, in the amount of $150.00, dated March 21, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by BIG MOTHERS DISCO, 427 N. ATLANTIC, INC., contrary to F.S. 561.42 (1). On or about the 21st day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did assist financially, a retail vendor, to wit; ANN L. METZ, DBA. ENTER METZO #1, License number 74-205, located at 3278 S. Atlantic Avenue, Daytona Beach Shores, Florida, Volusia County, by the giving of a rebate, to wit; a check, check number 3, in the amount of $310.00, dated March 21, 1978, drawn on the account of ANHEUSER BUSCH DISBURSEMENT ACCOUNT and endorsed by ENTER-METZ-O, contrary to F.S. 561.42(1). On or about the 22nd day of March, 1978, you ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING did financially assist a retail vendor, to wit; JEANE B. HALL, DBA, PIT STOP ARCADE, License number 74-722, located a 1114 Main Street, Daytona Beach, Volusia County, Florida, by the giving of a rebate, to wit; a check, check number 3, in the amount of $750.00, dated March 22, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by PIT STOP ARCADE, J. HALL, contrary to F.S. 561.42 (1). On or about the 22nd day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did financially assist a retail vendor, to wit; F.B. & L., INC., DBA, SHARK LOUNGE, License number 74-372, located at 730 Broadway Avenue, Daytona Beach, Volusia County, Florida, by the giving of a rebate, to wit; a check, check number 7, in the amount of $280.00, dated March 22, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by SHARK LOUNGE & PACKAGE, contrary to F.S. 561.42(1). On or about the 22nd day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING, did financially assist a retail vendor, to wit; BOOT HILL, INC., DBA BOOT HILL SALOON, License number 74-5, located at 310 Main Street, Daytona Beach, Volusia County, Florida, by the giving of a rebate, to wit; a check, check number 5, in the amount of $356.00, dated March 22, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT, and endorsed by BOOT HILL, INC., contrary to F.S. 561.42(1). On or about the 22nd day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did financially assist a retail vendor, to wit; OLIVER A. BELL, DBA CARNIVAL MOTOR INN, by the giving of gifts, loans or money or property or by the giving of a rebate, to wit; a check, check number 5, dated March 22, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by CARNIVAL MOTOR INN BAR, MANAGERS ACCOUNT, FRIDAY'S NIGHT CLUB contrary to F.S. 561.42(1). On or about the 23rd day of March, 1978, you ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did financially assist a retail vendor, to wit; DOUGLAS SILVER, DBA BLACKBEARD'S TAVERN, by the giving of gifts, loans of money or property or by the giving of a rebate, to wit; a check, check number 13, in the amount of $276.00, dated March 23, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by BLACK BEARD'S TAVERN, SILVER, contrary to F.S. 561.42(1). On or about the 23rd day of March, 1978, you ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING, did financially assist a retail vendor, to wit; GRADY SCOTT HENSLEY, DBA, THE ELBOW ROOM, by the giving of gifts, loans of money or property or by the giving of a rebate, to wit; a check, check number 6, in the amount of $200.00, dated March 23, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and signed by SCOTT HENSLEY, contrary to F.S. 561.42(1). On or about the 23rd day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING, did financially assist a retail vendor, to wit; CONSOLIDATED INN OF DAYTONA BEACH, INC., DBA HOLIDAY INN SURFSIDE, by the giving of gifts, loans of money or property or by the giving of a rebate, to wit; a check, check number 5, in the amount of $900.00, dated March 23, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by CONSOLIDATED INNS OF DAYTONA BEACH, INC., DBA HOLIDAY INN SURFSIDE, contrary to F.S. 561.42(1). On or about the 23rd day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did financially assist a retail vendor, to wit; SAM L. BERRY, DBA BROADWAY SAM'S, by the giving of gifts, loans of money or property or by the giving of a rebate, to wit; a check - three checks totaling $640.00, contrary to F.S. 561.42(1). On or about the 24th day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING, did financially assist a retail vendor, to wit; P.J.'S OF DAYTONA, INC., DBA, P.J.'S, License number 74-473, located at 400 Broadway Avenue Daytona Beach, Volusia County, Florida, by the giving of gifts, loans of money or property or by the giving of rebate, to wit; a check, check number 9, in the amount of $240.00 dated March 24 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT, contrary to F.S. 561.42(1). On or about the 24th day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did financially assist a retail vendor, to wit; PINK PUSSY CAT, INC., DBA, RED GARTER CLUB, License number 74-356, located at 1001 Main Street, Daytona Beach, Volusia County, Florida, by the giving of gifts, loans of money or property or by the giving of a rebate, to wit; a check, check number 14, in the amount of $270.00, dated March 24, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by RED GARTER, PINK PUSSY CAT, INC., contrary to F.S. 561.42(1). On or about the 24th day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did assist a retail vendor financially, to wit; McMILLIAN AND WRIGHT, INC., DBA, THE OCEAN PIER, License number 74-771, located at Main Street Over the Ocean, Daytona Beach, Volusia County, Florida, by the giving of gifts, loans of money or property or by the giving of rebates, to wit; a check, check number 5, in the amount of $850.00, dated March 21, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by McMILLIAN & WRIGHT, INC., OPERATING OCEAN PIER CASINO, contrary to F.S. 561.42(1). On or about the 24th day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did assist financially a retail vendor, to wit; McMILLIAN and WRIGHT, INC., DBA, THE OCEAN PIER, License number 74-771, located at Main Street Over The Ocean, Daytona Beach, Volusia County, Florida, by the giving of gifts, loans of money or property or by the giving of rebates, to wit; a check, check number 6, in the amount of $150.00, dated March 21, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by McMILLIAN & WRIGHT, INC., OPERATING OCEAN PIER CASINO, contrary to F.S. 561.42(1). On or about the 24th day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING, did financially assist a retail vendor, to wit; DAYTONA SAFARI MOTEL, INC., DBA, THE WRECK, License number 74-546, located at 7 S. Wild Olive, Daytona Beach, Volusia County, Florida, by the giving of gifts, loans of money or property of by the giving of rebates, to wit; a check, check number 8, in the amount of $420.00, dated March 24, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by WRECK BAR, RINGO, contrary to F.S. 561.42(1). Attachment 2
The Issue Whether or not on or about August 23, 1975, Carole Sanders, licensed under the beverage laws as a licensed vendor, did employ, on her licensed premises persons under the age of 18. to wit: Margie Johnson, W/F, DOB: 11/12/60, age 14, address: Homosassa, Florida, and Mrs. Fawn Hetland, DOB: 5/22/59, age 16, address: Sindpiper Motel, Room #38, Clearwater, Florida, contraty to Florida Statute 562.13. Whether or not on or about August 23,1975, Carole Sanders, licensee, her agent, servant, or employee, did allow procuring for the purpose of prostitution on her licensed premises, contrary to Florida Statutes 796.07(3)(A) and 561.29. Whether or not on or about August 23, 1975, Carole Sanders, licensee, or her servant, employee or an agent, did allow a person under the age of 18 to consume alcoholic beverages on her licensed premises, to wit: Margie Faye Johnson, W/F, DOB: 11/12/60, contrary to Florida Statue 562.11.
Findings Of Fact The Petitioner began its presentation by offering into evidence a copy of the amended notice to show cause, together with the notice of hearing, which became Petitioners Exhibit #1 which was admitted without objection. The Petitioner also presented a copy of the license of the Respondent, which was allowed into evidence without objection, as Petitioner's Exhibit #2. Petitioner then called Margie Faye Johnson to the stand. Miss Johnson testified that she was 15 years old as of November 12, 1975. She now lives with her mother at Homasassa, Florida, but in August, 1975, she was a runaway. While away from home, the witness went to the establishment of the Respondent, to wit, Charlie's Beach Bar and applied for a job as a topless dancer. At that time the witness was 14 years old. She had been told about this job by one Fawn Hetland, an acquaintance she had met two weeks prior to applying for the job. The job application was made sometime in August, 1975, three or four days prior to certain arrest warrants were served on Charlie Sanders, the husband of the Respondent. These warrants were served on or about August 23, 1975. The process of the hiring of Margie Johnson was described by her in the following fashion She said she asked Charlie Sanders about being a dancer in his bar and that he interviewed her and asked her to dance, after which she was hired as a topless dancer in the bar. During the course of the hiring procedures the witness testified that she was never asked for an identification card of any kind. She did say that she signed a writing presented to her by Carole Sanders, which was something to do with taxes. This writing spoken of was admitted as Petitioner's Exhibit #3, without objection. According to the witness, Charlie Sanders was responsible for hiring her as opposed to the Respondent, Carole Sanders. The night the witness was hired, in addition to neglecting to ask for an identification card, for some identification of her age, the witness indicated that she never saw anyone call for references concerning her age. She felt that she would have observed such a call because the phone was near the area in which she was located. During the course of her employment for the three or four days, Margie Johnson indicated that she danced topless, served alcoholic beverages, and consumed alcoholic beverages, and also worked the cash register. On the night that the arrest was made of Charlie Sanders, which would have been August 23, 1975, the witness was found in possession of a mug of beer. The mug itself is Petitioner's Exhibit #6 which was admitted without objection, after a stipulation had been entered into concerning the chain of custody of the beer mug and a stipulation that the mug contained an alcoholic substance, to wit, beer. Margie Johnson was arrested, by her statement, for drinking on the premises and being in an adult bar. Other activities concerning Margie Johnson while she was working for the Respondent, included a request by Charlie Sanders that she prostitute herself for an older man, whom she said was in the conversation, but whose name she does not know. The witness indicated that Charlie Sanders actively participated in this procurement situation by asking her if she had done any prostituting and asking her if she would like for him to set her up. The witness also indicated that Charlie Sanders propositioned her to go to bed with him, evidently for purposes of having sexual relations. To the witness's knowledge, Mrs. Sanders was not involved in any procurement for prostitution. Margie Johnson had also worked at two other topless lounges in the area to include the Savoy Lounge and the Stock Market. While working at the Savoy Lounge she said she had shown a birth certificate which had been given to her by some "chick and a guy" who picked her up. This birth certificate indicated that she was 22 years old. She had been requested to show proof of age at the Savoy Lounge and had shown the phony birth certificate, but she said she never showed any identification of age at the Stock Market. The Stock Market proprietors had asked her for proof of age but she had indicated that she would bring that proof in and never did. While at Charlie's Beach Bar, the witness stated that she never was questioned about her age. An effort was made to develop the fact that the witness worked in bars other than the bars spoken of, this was objected to and the objection was sustained because it was not felt that further development of the issue was material or relevant. Finally, the witness indicated that Charlie Sanders had told her the night they were arrested, that if she was not 18 years old that he was going to kill her. At present the witness is not in immediate contact with the Respondent or any employees at-Charlie's Beach Bar. John T. McMullen, agent for the Division of Beverage, testified that he assisted in serving a warrant issued to the Indian Rocks Police Department for August 23, 1975. This warrant was served around midnight on that date and when the witness entered Charlie's Beach Bar with the warrant party he noticed that Margie Johnson was sitting with a beer mug in her hand and that mug contained beer. This beer mug has been identified as Petitioner's Exhibit #6. When Officer McMullen approached Margie Johnson, because he felt she was under age, she stated that she was 18 and had been born in 1953. Later she admitted that she was a juvenile. Officer McMullen later returned to the bar around 1:15 A.M. on August 24, 1975, and picked up certain records from the Respondent, Mrs. Sanders. Part of these records have been admitted into evidence as Petitioner's Exhibit #5, admitted with objection. The witness testified that Mrs. Sanders told him that she had hired Margie Johnson because she knew the girl Fawn Hetland and because Margie Johnson had indicated that she was 18 years old and had worked at the Stock Market Bar. Consequently, according to Mrs. Sanders, she presumed these things to be so. Officer McMullen went back to the bar on a third occasion around 12:45 P.M. on September 3, 1975 at which time a citation for beverage violations was served upon the Respondent. At that time the witness stated that he read the citation to Carole Sanders and she told him she couldn't go and not plead guilty to the citation, because she had hired Margie Johnson and that her husband had hired Fawn Hetland and that they knew the girls were minors. Beverage Agent Woodrow Ray took the stand and testified essentially the same way as Officer McMullen, about the facts surrounding the service of the warrant on August 23, 1975, at Charlie's Beach Bar. Officer Ray also went back to get records In the early morning hours of August 24, 1975. He indicated the receipt of Petitioner's Exhibit #5 from Carole Sanders and stated that he had given her a receipt in return which is admitted into evidence as Petitioner's Exhibit #4, without objection. *A more complete description of the objection to the introduction of Exhibit #5 will be discussed in the section of this order entitled CONCLUSIONS OF LAW. Officer H. C. Adams of the Indian Rocks Police Department, testified that he was involved in serving the warrant on Charlie Sanders at Charlie's Beach Bar on August 23, 1975. He had seen Margie Johnson drinking the beer which was in Petitioners Exhibit #6, and had removed the beer mug and contents from Margie Johnson. The Petitioner called Jack Lewzader to the stand. Before Mr. Lewzader testified, the Petitioner offered to amend count 2 of the amended information by changing the date of August 23, 1975, as reflected, to the date of August 16, 1975. The Respondent was offered the right of a continuance since there had been a change in count 2; however, the Respondent indicated that he was sufficiently prepared to defend the charges reflected in count 2 and the testimony of Jack Lewzader was taken. Mr. Lewzader said that he was a customer in Charlie's Beach Bar and that on one occasion he had taken home one Fawn Doyle* and on the way home Fawn Doyle had offered to sell herself for $10.00 and as the car stopped, Fawn Doyle grabbed the $10.00 from his hand and jumped out of the car. He stated that he went back to Charlie's Beach Bar and confronted Charlie Sanders later that same day, with the details of his problem with Fawn Doyle. Lewzader said that Charlie Sanders told him that he would have to talk with her. Charlie Sanders then introduced Lewzader to a Mike and a Linda who were in Charlie's Beach Bar. A conversation then ensued, in which it was indicated through Charlie Sanders, that he might help make the matter with Fawn Doyle right by the introduction of Mike and Linda. Linda and Mike stated that Linda would sell herself for $25.00 for the first hour, $50.00 for the second hour and $75.00 for all night and that they would deduct the $10.00 that had been taken by Fawn Doyle. This conversation with Linda and Mike took place on the premises of the Respondent, to wit, Charlie's Beach Bar. On cross-examination, Mr. Lewzader indicated that he had gone to the Indian Rocks Police Station to complain, after the $10.00 had been taken by Fawn Hetland. Then he went to speak to Charlie Sanders and met Mike and Linda, and later returned back to the police station to file a complaint. Respondent's Exhibit #1 was introduced through the witness, Lewzader. This item of evidence was the affidavit of complaint by Jack Lewzader. It was admitted without objection. As Respondent's Exhibit #1 reflects, the discussion Mr. Lewzader had at the police station was with one Officer Marvin Padgett. The witness indicated that Respondent's Exhibit #1 accurately reflects the details of his complaint. Respondent presented testimony in the course of the hearing, and the first witness was Diane Poole. Diane Poole is 23 years old and is a topless dancer at Charlie's Beach Bar at this time and has been so employed for two months. She testified that she applied for a job at Charlie's Beach Bar while down there having a glass of wine. She indicated that while having the wine she was carded by the bartender who was a lady; however, she auditioned before showing any identification card. The process of her hiring included Charlie Sanders asking where she had worked before and dancing to three songs, discussing certain written rules, discussing how old she was and signing a certain paper on income tax. She said that she has never been asked about being a prostitute. The witness has been a dancer for about 3-1/2 years and had started in Phoenix, Arizona. She has also held jobs as a model and as a secretary. *Fawn Doyle and Fawn Hetland was believed to be one and the same person to the knowledge of the witness. Marvin Padget took the stand, after being called by the Respondent. He testified that he knows Charlie Sanders and Carole Sanders. He further testified that he knows Jack Lewzader as being a complainant who came to him about alleged acts of prostitution by Fawn Hetland. In the discussion of his complaint about Fawn Hetland, the witness said he advised Lewzader of his rights and told him that he would not prosecute him for his involvement with the minor, Fawn Hetland. The witness further stated that he asked Lewzader if he was a regular patron of Charlie's Beach Bar and told him to keep his eyes and ears open. If he heard about anything else, such as prostitution, going on in the bar, he instructed Lewzader to report any matters of impropriety to him concerning prostitution in Charlie's Beach Bar. He also asked Lewzader if he had heard of other incidents such as the one with Fawn Hetland. He did not mention the names of any persons he wanted observed in Charlie's Beach Bar. Later, according to the witness, Jack Lewzader completed the complaint which is Respondent's Exhibit #1. Carole Sanders took the stand in her own behalf. She testified that Margie Johnson came into Charlie's Beach Bar and that she auditioned to be a dancer. According to Carole Sanders, Margie Johnson was asked for an identification and she told her she had lost her purse and that she would bring in some identification at a later time. She said she told Margie Johnson about their rules, which were not in the form of writing at that time, and also explained to her about the matters concerning income tax. The witness seemed to indicate that the actual hiring of Margie was at a later time, although she and her husband had agreed to hire Margie Johnson on the same date of the audition. According to the witness, it was her understanding that Margie Johnson would have an identification to show at the time she was actually employed. She doesn't know if any identification was ever shown by Margie Johnson to indicate her age. The witness said, to her knowledge, there is no prostitution in Charlie's Beach Bar and has not been since she became the proprietor, even though there have been 30 or 40 girls hired by the bar in that time period. According to the witness, Fawn Hetland was hired by Charlie Sanders. Margie Johnson, as indicated by the witness, was interviewed and eventually went to work the first day, effective the night that her bar was raided. The witness indicated that she never told anyone she was guilty of hiring minors. Nevertheless, she indicated that she knows she should have made sure on the age of her employees and was remiss in the instance of Fawn Hetland and Margie Johnson. She further stated that she is more careful now about the matter of identification for prospective employees. Charlie Sanders took the stand in behalf of the Respondent. Charlie Sanders, as stated before, is the husband of the Respondent. Describing the hiring of Fawn Hetland, he said he asked for a proof of age and she produced an employment card for Orange County. The witness said he was bothered by that somewhat and asked for further proof of age and Fawn Hetland promised proof later on. He testified that he knew she was married and had a child and for that reason seemed to be satisfied to accept better proof of age at a later time. To the witness's way of thinking, the reason better proof of age was never forth coming was because Fawn Hetland's husband had most of her identification and refused to give it to her. He also stated he had phoned an establishment called the House to see if she had danced there before and was told yes. In discussing Margie Johnson, the witness indicated that he had hired her over a four day period but that she had only worked one day. He said he asked Margie Johnson where she had worked before and she indicated the Savoy Lounge. His wife was there when Margie Johnson was hired. He said he wasn't shown any identification at the time of hiring but Fawn Hetland said that she was alright and he also called the Savoy Lounge, after which he was satisfied at that time. The witness then said that on the second or third night that she had worked she showed him a birth certificate that indicated that she was born in 1953, to which he simply replied, "is this yours?" and then told Margie Johnson to get to work. He said he told his wife that he had seen Margie Johnson's identification. To the witness, Margie Johnson, in August, 1975, looked 22 years of age as the phony birth certificate indicated. In discussing the Lewzader matter, the witness said that Lewzader came into the bar and wanted to talk to him about Fawn Hetland. He said that Lewzader told him that Fawn Hetland wanted some money for baby food and that he was going to give her $10.00 and she "ripped" the $10.00 off him, and that Lewzader simply wanted him to know what kind of person Fawn Hetland was. He confronted Fawn Hetland with the matter and Fawn Hetland said that Lewzader was trying to have sex with her. Before he could resolve the difference between Jack Lewzader and Fawn Hetland, he had to leave the bar and to his knowledge that was the end of the situation. The witness indicated that he had found out about the complaint before the time of his arrest by the Indian Rocks Beach Police Department, for prostitution type charges. He said that Lewzader was in his bar and he confronted Lewzader with the fact of Lewzader's claim in the affidavit, and Lewzader told him they simply had made it up, meaning the police. He said that Lewzader told him that he would never have come back into the bar to face him had he made the charges that the police claim. As an aside, the witness indicated that there had been a Linda working there at one time but that her fiance had not liked it and she had quit the job. He said that Linda continued to come in there, perhaps, but that he did not think Linda was in there at the time Jack Lewzader came to discuss the matter of Fawn Hetland. Attention is drawn to Petitioner's Exhibit #5 which is records turned over to the police by Carole Sanders, Respondent. These records seem to indicate that Margie Johnson was working there for more than one night. Moreover, these records seem to indicate that a person named Linda was working there at the same time that Marge (Margie Johnson) was. From the discussion of the employment of Margie Johnson, both from the standpoint of Margie Johnson, Carole Sanders, and Charlie Sanders, it appears that Margie Johnson was employed on the licensed premises of the Respondent when she was under the age of 18. Furthermore, the description of the technique involved by Carole Sanders and Charlie Sanders in trying to ascertain the age of Margie Johnson does not demonstrate due diligence on the part of the Respondent in hiring Margie Johnson. This conclusion assumes the validity of the story of any one of the three witnesses, to wit, Margie Johnson, Carole Sanders, or Charlie Sanders. It is noted that there is a major inconsistency concerning the date at which Margie Johnson was formally employed by the Respondent, when considering the version of Carole Sanders and Charlie Sanders, and consequently Margie Johnson is more creditable. In examining the application of count 1, to Fawn Hetland, one must look to the statements of Charlie Sanders. Assuming that what Charlie Sanders has said is exactly true, it would appear that Charlie Sanders as the agent or employee of Carole Sanders did not use due diligence in hiring Fawn Hetland. This is further established in view of the fact that a prima facie case has been established that Fawn Hetland was under the age of 18 when she was hired, as set forth by testimony offered by officer McMullen in discussing Carole Sanders admission. Although the nature of the acts of Jack Lewzader in involving himself with a minor for purposes of promoting prostitution on the part of Fawn Hetland and then in returning to Charlie's Beach Bar and engaging in the discussion of further prostitution with a subject whose name is Linda, would make his testimony somewhat suspect, it would still seem strong enough to support the charges in count 2. The testimony of Jack Lewzader must be contrasted with the interest on the part of Charlie Sanders in protecting the license, and must be considered in view of the fact, that there was a Linda working there at some time and who was apparently working there at the same time as Margie Johnson. Furthermore, Margie Johnson testified that she had seen Fawn Hetland discuss the price of $25.00 for purposes of prostitution, and leave with the man she was having that conversation with and not return until the next day. Finally in discussing count 3 of the charges, it is well established that Margie Faye Johnson was consuming an alcoholic beverage, to wit, beer on August 23, 1975, when the investigators arrived on the premises to serve the warrant. It has also been established that due diligence had not been followed in ascertaining the age of Margie Johnson before allowing her to consume that alcoholic beverage on the licensed premises, for reasons set forth in the discussion of count l.
Recommendation For committing the violation alleged in count 1 of the amended Administrative Complaint, it is recommended that the Director of the Division of Beverage revoke the license of the Respondent. For committing the violation alleged in count 2 of the amended Administrative Complaint, it is recommended that the Director of the Division of Beverage assess a civil penalty in the amount of $500.00. For committing the violation alleged in count 3 of the amended Administrative Complaint, it is recommended that the Director of the Division of Beverage revoke the license of the Respondent. DONE and ENTERED this 2nd day of March, 1976, in Tallahassee, Florida. CHARLES C ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation 725 Bronough Street Tallahassee, Florida 32304 Robert K. Hayden, Esquire 932 South Myrtle Avenue Clearwater, Florida 33516 =================================================================
