Findings Of Fact At all times pertinent to the allegations contained herein, Respondent P R of Brevard County, Inc., doing business as Shark Lounge, was the holder of Florida Alcoholic Beverage License Series 4-COP No. 15-00177 for the Shark Lounge, located at 411 North Orange Avenue, Cocoa Beach, Florida. On March 15, 1984, Terry A. Altman, a special agent for the U.S. Treasury Bureau of Alcohol, Tobacco and Firearms (BATF), in an undercover capacity and in the company of Investigator Gloria Smith of the Division of Alcoholic Beverages and Tobacco (DABT), also in an undercover capacity, entered the Shark Lounge at approximately 2:00 a.m. They had been there before on March 12, 1984, when an employee of the Respondent, the bouncer Harry Haynes, had offered to sell marijuana to Smith. On this March 15th visit, they spoke with an employee by the name of Sherry, and Smith asked if Haynes was there. When Haynes showed up, Smith asked him if he had been able to obtain any of the marijuana he had mentioned previously, whereupon Haynes told her that cocaine was easier to get than marijuana. However, Haynes made some telephone calls and shortly thereafter requested that Altman come outside with him. Altman complied, at which time Haynes requested $30. Altman paid the $30 to Haynes and then went back inside the bar. A little later, Haynes came in and motioned Altman and Smith to come outside, where Haynes handed Altman a plastic envelope containing a green leafy substance. Upon subsequent laboratory analysis, this substance was determined to be marijuana. On March 22, 1984, Altman and Smith went back to Respondent's lounge, where Smith saw Haynes behind the bar. At this time, she asked Haynes if she could get cocaine, and Haynes indicated that he had already ordered some for her. At approximately 2:00 a.m., Haynes came in and told Altman to go outside with him. Haynes quoted a price of $50 a half gram for the substance. Altman paid Haynes the $50 and went back inside, while Haynes went someplace else. A few minutes later, Haynes came back into the bar and requested that Altman again come outside. When he did so, Haynes handed him a small plastic bag of a white powder, suspected to be cocaine, which Altman took back into the lounge and gave to Smith. Sitting at the table and making no effort to conceal her actions, Smith held the package up to the light, tapped the bag to get the substance to one corner, and then put it into her purse. Haynes at that time guaranteed the quality of the substance and offered to get them more in the future if they so desired. This substance was subsequently analyzed and determined to be cocaine. Thereafter, on March 24, 1984, Smith, in the company of undercover agent Jenkins, entered the lounge at about 9:30 p.m. She introduced Jenkins to Haynes and asked Haynes if he could get some cocaine for them. Haynes replied that he could do so but that his source would not be in until later in the evening. At approximately 3:30 the following morning, while Haynes was busy attempting to break up a fight which had just started, an individual identified as Haynes' source entered the bar, and Haynes pointed out Smith to him. This source, identified as Ric, came to Smith and gave her what was subsequently identified as cocaine in a plastic bag, for which she paid him $50. By this time, the lights, which had previously been turned out in an attempt to help stop the fight, were back on, and there was no attempt on the part of Ric to conceal the transaction. Later in the evening, Haynes asked Smith if she had been taken care of. Again, on April 8, 1984, Altman entered the Shark Lounge at approximately midnight. He approached Haynes, who was acting as a bouncer at the entrance, and asked to buy a half gram of cocaine. Haynes asked Altman to step outside and agreed to procure the cocaine for Altman if he would front the money for it. Altman paid Haynes $60 in cash at the Shark Lounge, and, pursuant to the agreement between the parties, the cocaine was subsequently delivered later that afternoon at the Canaveral Pier. The transfer of money from Altman to Haynes took place near the door in front of an independent security guard hired by Respondent. Haynes explained the transfer as being a payoff of a bet. On April 17, 1984, at approximately 9:00 p.m., Smith and Altman again entered the Shark Lounge and engaged Haynes in conversation, at which time Smith indicated that she wanted some more cocaine. Haynes replied he would get it, and Altman gave him $40 to purchase a half gram of cocaine. It was understood between them that Smith and Altman would be back the following evening to pick up the cocaine. When they did come back at approximately 11:45 p.m. on April 18, Haynes, who was out in the parking lot, motioned Altman to get into an Oldsmobile car, which Altman did. Haynes then removed the package of cocaine from the car's ashtray and attempted to give it to Altman, saying that it was good stuff. Altman, however, indicated that Smith had paid for it and that Haynes should give it directly to her. The two men then got out of the car and approached Smith, who was standing near the outside of the door to the lounge. Haynes attempted to give Smith the cocaine at that time, but she would not accept it and instead went into the lounge to use the restroom. As Haynes and Altman followed Smith into the lounge, Haynes pressed the cocaine onto Altman, indicating that he wanted to get rid of it. When Smith came back from the restroom a few moments later, Haynes told her he had already given the cocaine to Altman, who took it out of his pocket and put it in Smith's lap. She examined the cocaine and put it in her purse in full view of the other patrons of the bar. This substance, delivered by Haynes to Aliman and in turn to Smith, was subsequently identified as cocaine. Neither agent went back to the bar until April 26, 1984, at approximately 1:30 a.m., when Altman and Smith, in the company of Special Agent Eslinger of the U.S. Drug Enforcement Administration (DEA), entered the bar. They contacted Haynes, who was working as a bartender at the time, and Smith asked him to get a half gram of cocaine for her. Haynes agreed to do this and told her to check with him the next day to see if he had procured it. At the time of her request, Smith gave Haynes $50 for the cocaine. No further contact was had until late in the evening of April 30, 1984, when Altman, Smith, and an unidentified confidential informant entered the lounge. Smith asked Haynes at that time if he had obtained the cocaine she had paid for on April 26, and Haynes said that he had. This conversation took place near the door, where Haynes was working as a bouncer. Haynes took a plastic envelope containing a white powder from his right front pocket and gave it to Smith, who brought it back to the table and showed it to Altman. Later, pursuant to Smith's invitation, Haynes came to their table and said that over the weekend he had obtained some sensinilla, some speed, and another substance. Smith said she would like to have some speed, and Haynes said he could get 30 capsules of it for $15, which she gave to him. At this point, Haynes showed Smith a package of a black substance which he identified as hashish and offered to sell to her for $5. Smith did not buy any, however, and she, Altman, and the informant departed the lounge after telling Haynes they would be back for the speed the next night. The white powdery substance that Smith obtained from Haynes that night was subsequently tested and found to be cocaine. When Smith went back to the lounge on May 4, 1984, at 11:00 p.m., this time with Eslinger alone, she contacted Haynes, who was working as the bouncer. Haynes told her he had the speed which she had paid for previously on April 30 and told them to go sit down. Shortly thereafter, Haynes motioned for Smith to come over to the door area, and, when she did so, he briefly stepped outside the lounge and then immediately came back. When he returned, Haynes put a package inside Smith's purse, which she saw and which he stated was only 25 capsules instead of the 30 she had paid for. At this point, Smith asked Haynes if she could pay him $50 in advance for a half gram of cocaine, which Eslinger would pick up the following day at the Canaveral Pier. When Haynes agreed, Smith gave him the $50 while they were inside the bar. Thereafter, she and Eslinger left. The capsules which Smith received from Haynes that night in the lounge did not contain amphetamines or any other determinable controlled substance. When Altman and Smith next returned to the bar on June 3, 1984, they found Haynes standing by the entrance. About a half hour after they went in, Smith asked Haynes if he had any cocaine and, when he replied in the affirmative, gave him $50 in advance for a half gram of cocaine. The arrangements made at that time were that the cocaine would be picked up on June Somewhat later, when Altman and Smith were leaving, Haynes told Smith not to leave yet, that his source was getting the cocaine out of his car. Altman and Smith waited, and a few minutes later Haynes came up to Smith at the bar and dropped into her purse a small plastic bag which contained a white powdery substance subsequently identified as cocaine. When Haynes dropped the bag into her purse, Smith took it out and examined it in plain view at the bar, which was well lighted, before putting it back into her right-hand pocket. Shortly thereafter, Altman and Smith left. The packages containing cocaine, which Smith held up to the light to examine, were approximately an inch and a half by an inch and a half in size. Although other employees were in the immediate area at the time that she held the packages up, and Altman does not know hew they could have avoided seeing what Smith was doing, Altman cannot say for sure that the employees did see it, nor can Smith. No other employees of the Respondent were involved in any of the drug deals except for Haynes. No other employees were in the immediate area when the sales were made. Neither Smith, Altman, nor Eslinger engaged in any discussion of drugs with any other employee of the bar on the numerous times they were in there. Smith contends that she first went into the bar on March 12, 1984, with Altman to pick up some drugs offered at another bar. She started talking to a male at her right and asked him if he knew where she could get some grass. This individual said yes and went to make a phone call. Later, he identified himself as Harry Haynes and said that he worked there as a bouncer but was not on duty on that particular night. The drugs were not delivered that night, either. On March 14, at 2:00 a.m., Altman and Smith again went into the lounge. Smith approached Sherry, the bartender, and asked for Haynes, who was not there. Smith told Sherry that Haynes was to get her some grass, and, in Smith's opinion, Sherry did not react to this disclosure at all. Sherry, on the other hand, denies any conversation with Smith about drugs. She indicated that Smith came to her frequently and asked for Haynes but never mentioned drugs in any capacity. Had Smith done so, Sherry states, she would have asked her to leave. This last comment stands to defeat Sherry's credibility, however. It is unlikely that the comment was made. It is also unlikely that an experienced bartender, as Sherry is, would react by asking a repeat patron to leave for mentioning that Haynes was to get marijuana. Sherry is the only one in the bar, except for Haynes, to whom Smith mentioned drugs, although she had a conversation about drugs with Haynes in front of Ric, who is apparently also a bouncer. When Smith asked about that, Haynes said that it was okay. There is a divergence of opinion regarding the reputation of the Shark Lounge as a source of drugs. Randy Arles, a Melbourne Beach police officer on loan to the Cocoa Beach Police Department Vice Squad since mid-March of 1984 and operating undercover, was contacted previously by a confidential informant who indicated there was cocaine traffic at the Shark Lounge. Based on that information, Arles and another officer went in to try to make a buy but were unsuccessful because, as it was explained to him, his identity as a police officer had been disclosed. Information reaching him from such street sources as confidential informants and prostitutes indicated that the Shark Lounge was known as a place to buy cocaine and that Haynes, the bouncer, was the seller. This latter information, however, is hearsay testimony and, with the exception of that relative to Haynes, cannot serve as the basis for a finding of fact. The identity of Haynes as the seller is corroborated by other independent admissible evidence, however. On the other hand, Officer Charles B. Autry, who has been with the Cocoa Beach Police Department for 14 years, has come into contact with the Shark Lounge and its owner on several occasions and has been inside the lounge four or five times. To his knowledge, it is a well-run establishment, and he has never in his 14 years been called there while on duty. The owner is very businesslike and very cooperative. He runs a tight ship and encourages the police to come inside both while on and off duty. In Officer Autry's opinion, considering today's morality, any place where crowds congregate has the potential for drugs, including the Shark Lounge, which he would not class as a nuisance. This opinion was also held by Major Gary Hummel, who has been with the Cocoa Beach Police Department for 14 years. He has been in the Shark Lounge on many occasions and knows the owner personally. He considers Mr. Autry to be an upright businessman who is not himself involved in drugs. The lounge in question here is one of only two lounges in Cocoa Beach that Hummel will patronize and take his wife. Both socially and professionally, he knows of no employees who sell drugs at the lounge, but the employees know he is a police officer, and this may have some bearing on their behavior in his presence. Hummel believes the owner is tough and knows that he will fire any employee for being drunk on duty. He also discharges employees for even the slightest infractions of rules. This bar is not a nuisance in his opinion but is a good clean place where many of the Cape workers go. These sentiments were reinforced by the proffered testimony of Officers William MacDonald and Al Otto of the Cocoa Beach Police Department, who both have been in the Shark Lounge frequently both socially and professionally. They have been encouraged to come in by the owner and find the lounge to be a clean, well-run, drug-free operation. Sharon LeVaugh (Sherry) has worked at the lounge as a bartender for six and a half years and runs the floor operation. Her immediate supervisor is the owner, Mr. Autry, who, to her knowledge, has a strict policy against drugs. Anyone using them, whether it be an employee or a patron, is immediately put out of the place. There is a low turnover of employees at the Shark Lounge, because it is a good place to work. During the six and a half years she has worked there, Sherry has never seen drugs used at the bar. She had no idea that Harry Haynes was dealing in drugs and doesn't think anyone else did. The Shark Lounge is dark inside like a normal lounge. The crowd which patronizes it is made up of regulars, both young and old, with repeat patronage common. A lot of business comes from Space Center employees, and police are encouraged to come in frequently. Friday and Saturday nights are quite busy, with 200 to 300 people in attendance. The bar offers live music seven nights a week, and the music is a noisy rock and roll band. Chad J. Milkint, the manager of the Shark Lounge, has worked there for a little over a year. Before that, he worked at another bar in the area for three years and has been in the lounge business both in Florida and outside the state for more than 11 years. When Milkint was hired, the owner was very clear about the "no drug policy," and he has followed it closely. He has, on occasion, thrown people out for being intoxicated either on drugs or alcohol. There is, he claims, a practical reason for this. If a patron is intoxicated, he is not buying drinks, and they are in business to sell drinks. Milkint did not know Haynes was using drugs or selling them. If he had, he would have fired him immediately. It was not at all unusual for Haynes to go outside as part of his job. In fact, Haynes' duties included a patrol of the outside area around the bar three or four times a night. Milkint admits he did no background check on Haynes except to check with his former employer, who gave Haynes a favorable recommendation. Haynes was a part-time employee who worked two or three days a week as a backup to the main barmen in addition to his duties as a bouncer. In a normal week, Haynes would work approximately 20 hours and had been employed sporadically by the bar for only five or six months. During the period of employment at the lounge, Haynes also worked at the Canaveral Pier. When Milkint checked with the beverage manager there, he was told that Haynes' performance was satisfactory. Milkint is frequently in the bar and observes what goes on. He denies ever seeing anyone check baggies by tapping or holding them up to the light, as described by Altman and Smith. He does not believe his employees saw that, either, because he feels that if they had seen it they would have reported it. The owner also supervises on a day-to-day basis, and in Milkint's opinion the operation is a good, ethical, well-run establishment. The employees are good, the entertainment is good, and the drinks are good and sold at fair prices. Milkint does not know how he could have prevented the sales by Haynes that took place there. Gary C. Autry, sole stock owner of the Shark Lounge, has owned the establishment for eight years. He used to work more in the bar than he does now, but a recent blood condition has developed that has made him curtail his activities. When Autry came down with this condition, he hired Milkint as a manager and an individual by the name of Mike Harris as an assistant. He has known both of them for years and knew both had previous lounge experience. When he hired them, Autry told them immediately that his policy was "no drugs whatsoever." Although he cannot spend as much time in the establishment as he used to, Autry is nonetheless there seven days a week and closely supervises his operation. His bouncers are trained to handle drugs and work with the police. Had Autry known Haynes was selling or using drugs, Haynes would have been dismissed immediately. When he hires employees, he asks them their habits. He believes that because of his policies his turnover of employees is as low as it is.
The Issue Whether Respondent's alcoholic beverage license should be suspended, revoked, or otherwise disciplined on the grounds stated in Petitioner's Notice to Show Cause dated April 13, 1983.
Findings Of Fact At all times pertinent to this hearing, Respondent possessed alcoholic beverage license numbered 68-776, Series 2-COP, located at 1968 Unit A 27th Street, Sarasota, Florida, where he operated the Town Hall Restaurant. During the last year and a half prior to April 13, 1983, officers of the Sarasota Police Department (SPD) have been called to Respondent's place of business on a frequent basis for various infractions of the law. Numerous narcotics arrests have been made outside of, but in the immediate vicinity of, the Respondent's restaurant, and there have been responses to other crimes, such as assaults and robberies, in the area. Sgt. Peter Viana, SPD, works primarily in this area of town, which contains primarily black oriented businesses, and has smelled marijuana in Respondent's business place on several occasions. In addition, SPD Detective James Fulton related that police intelligence within that same time frame, the last year and a half, indicates repeated sales of narcotics both inside and outside Respondent's establishment. Beverage Officer Keith Hamilton was assigned to an investigation of bars and restaurants in the area of Respondent's business during late March and early April 1, 1983. He is a qualified narcotics investigator and is familiar with the appearance, smell, and taste of such substances as marijuana and cocaine. Early in the morning of March 22, 1983, Hamilton entered the Town Hall Restaurant and went up to the bar to order a beer. There he met "Precious," the barmaid/bartender, who is a male transvestite. During the course of the conversation, Hamilton asked Precious if he could do him a favor. When Precious agreed, Hamilton gave $10 to Precious, who then went over to a patron elsewhere in the room. When Precious returned to Hamilton, he gave him his change and a paper bag which contained a substance later analyzed at the laboratory of the Florida Department of Law Enforcement and determined to be 1.7 grams of marijuana. All tests referred to herein were accomplished by this laboratory. Later that same morning, having returned to the Town Hall Restaurant, Hamilton asked Precious about the availability of cocaine. Precious said he did not know much about it, but would try. Hamilton gave $23 to Precious, who went over to another customer in the bar, made a purchase of some substance, returned to the bar, and after waiting on one other customer, transferred what he had purchased to Hamilton. This substance was subsequently tested and determined to be cocaine. During this second visit to the Town Hall, Hamilton observed other individuals in the building smoking what appeared to be marijuana cigarettes and what he believed to be two sales of the substance. He held this opinion because of the way the cigarettes were wrapped, burned, and held in the peculiar fashion of the marijuana "joint." That same evening, March 22, 1983, Hamilton went to the Town Hall for the third time and this time met with another male transvestite bartender known as "Buffy." He asked Buffy about the possibility of getting some marijuana, but Buffy was reluctant and told him to deal direct. Therefore, Hamilton called over one of the other patrons who he knew to be a dealer and purchased what was subsequently tested and identified as 1.6 grams of marijuana. Again, at this time, he observed other patrons at the pool table in the building to be smoking what he believed was marijuana. About 11:00 p.m. that same night, Hamilton made a fourth buy in the Town Hall Restaurant, this time through Precious, who followed the prior procedure and made the purchase from an unidentified black male. This time, the substance tested out to be 1.6 grams of marijuana. When Hamilton went into the Town Hall again on March 23, 1983, Buffy was on duty and again refused to be the direct conduit for a purchase of marijuana. However, Hamilton contacted other patrons in the restaurant from whom he purchased two $6 bags of what was later tested and identified as marijuana. Again, at this time, no attempt was made to hide the marijuana, and Hamilton observed other people in the bar smoking what he believed to be marijuana. Hamilton again returned to the Town Hall Restaurant on the morning of March 24, 1983. When he entered, he saw neither Precious nor Buffy and was, instead, approached by the Respondent. Hamilton ordered a chicken sandwich, but Smith told him no food was ready. He then asked Smith if he knew where he, Hamilton, could get some marijuana, but Smith said he did not. Hamilton started out of the building, but happened to notice that one of the employees who was mopping the floor was one of the same people from whom his prior purchases were made. On the spot, with Smith standing by, Hamilton then purchased another 1.7 grams of what was tested and identified as marijuana. Later that day, March 24, 1983, Hamilton again went into the Town Hall, approached and was again rebuffed by Buffy, and instead made a purchase from some other unidentified individual in the bar. At that time, there were few patrons in the bar, and Hamilton observed the smoking of what appeared to him to be marijuana. When Hamilton entered the bar on March 25, 1983, Precious refused to deal with him and suggested that he deal with another black male named "Georgia." After observing Georgia make sales of some substance to other patrons, Hamilton approached him and purchased what was later tested and found to be marijuana. During the entire time Hamilton was in the Town Hall Restaurant on this date, he observed the open smoking of what he identified as marijuana from the method of smoking and the smell. Hamilton was again refused by Buffy ire the Town Hall on April 9, 1983. However, there was another patron at the bar who agreed to get him some stuff" and who then left the area. Shortly afterwards, a black male named "Sylvester" came into the restaurant, approached him, and sold him $20 worth of what was later tested and identified as cocaine. During this entire time, Buffy, an employee of Respondent, was standing behind and across the bar directly across from the sale--a distance of less than three feet. Hamilton's instructions prior to the operation were to attempt to purchase drugs in not only this establishment but also in others in the area, and he did. He offered no inducements separate from the purchase, though an informant accompanying him on one visit offered sexual favors to Buffy. A raid was conducted at the Town Hall on April 13, 1983, by agents of Petitioner and SPD. Marijuana was found on only one patron. Respondent Smith has had his beverage license for this establishment for approximately 14 months, during which time he has had no problem with Petitioner or other law enforcement authorities. It is his practice when hiring personnel to tell them to keep drugs out. His hours at the bar are from 9:00 a.m. to 5:00 p.m. on Monday through Thursday and from 11:00 p.m. to 3:00 a.m. on Friday and Saturday. While at this establishment, he is usually near the pool table. Though he does not recall being approached by Hamilton at the bar, he agrees that what Hamilton said transpired is probably correct, except for the sale of drugs. Respondent has a good reputation in the community as a law-abiding citizen. Several witnesses who have been in the Town Hall at different times of the day and night claim not to have seen anyone using drugs there.
Recommendation On the basis of the facts and conclusions above, it is RECOMMENDED: That Respondent's alcoholic beverage license be suspended for one year and that he pay a fine of $100 for each violation as alleged in Allegations 1, 2, 4, 6, 8, 9 and 10 in the Notice to Show Cause dated April 13, 1983. RECOMMENDED this 24th day of May, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1983. COPIES FURNISHED: Harold F. X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Harold H. Moore, Esquire Post Office Box 4311 Sarasota, Florida 33578 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Harold M. Rasmussen Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact On February 21, 1975, H. R. Hall was working as an undercover detective for the Jacksonville Vice Squad. During the evening of that date Detective Hall entered the Silver Dollar Bar and Package Store, sat in a booth and ordered a beer. Sarah Lynn Swain, LuAnn Marie Docker and Lee Ann Remm, on the evening of February 21, 1975, were dressed as topless dancers and performed as topless dancers in the Silver Dollar Bar and Package Store. The three foregoing persons were agents, servants or employees of the Respondent. While seated in a booth Detective Hall observed Sarah Lynn Swain dancing topless between the legs of a male customer, who was fondling her buttocks while she placed her breast in the customer's mouth. Also while seated in the booth, Detective Hall observed LuAnn Marie Dockery dancing topless for a male customer and allowing the customer to fondle her buttocks. While in the Silver Dollar Bar and Package Store on February 21, 1975, Lee Ann Remm performed a topless dance for Detective Hall and while so dancing straddled his leg and undulated back and forth. Further, she attempted to place her breast in Detective Hall's mouth. Detective Hall paid her $2.00 to dance for him, but did not discuss with her, nor request the privilege of touching her. The Respondent is the holder of Beverage License No. 26-1334,4-COP and the licensed premises are the Silver Dollar Bar and Package Store.
The Issue Whether or not on or about June 21, 1976, the Respondent, Evelyns, Inc., did permit its agents, servants, or employees, to wit: Kevin Kierstead and Alan Rogers to expose their sexual organs on its licensed premise which is open to the public, in a vulgar and indecent manner in violation of s. 800.03, F.S., thereby violating s. 561.29, F.S. Whether or not on or about June 21, l976,the Respondent, Evelyns, Inc., did permit its agents, servants, or employees, to wit: Kevin Kiersiead and Alan Rogers to engage in lewd and lascivious conduct, to wit: displaying sexual organs in a lewd and lascivious manner in violation of s. 795.02, F.S., thereby violating s. 561.29, F.S.
Findings Of Fact The Respondent, Evelyns, Inc., t/a The Other Door, is the holder of license no. 58-375, series 4-COP, held with the State of Florida, Division of Beverage from October 1, 1975 through September 30, 1977. On the night of June 21, 1976, Diane Salyer and Sharon Viaphiades entered the licensed premises known as The Other Door, which was owned by the Respondent, Evelyns, Inc. After entering the licensed premises they sat down at a round table which was approximately four feet high and two feet in diameter. In the licensed premises were approximately 100 to 125 female patrons, ten or twelve male dancers, and a number of employees of the Respondent. Among the employees were several door watchers, waitresses, and a master of ceremonies. The male dancers were referred to as "Go-Go" dancers and these dancers were dancing on a stage area and on various tables about the inside of the licensed premises. One of the dancers was a Kevin Kierstead and at some point during the evening Kevin Kierstead stood up on the table at which Salyer and Viaphiades were seated and commenced to dance for these women. This dance took approximately three to five minutes and in the course of that dance Kierstead exposed his sexual organs to Salyer and Viaphiades, twice to Salyer and once to Viaphiades. Each of these exposures took approximately two to three seconds. The exposure was done by squatting in front of the two women on each occasion and pulling back the jock strap costume that the dancer was wearing. It was not established that any of the employees within the licensed premises saw this act of exposure. By prearranged signal, the aforementioned witnesses, Salyer and Viaphiades were to contact law enforcement officers who were waiting outside. After Kierstead had exposed himself, contact was made with the law enforcement officials. One of the officials who came into the premises was, David A. Hughes, an officer with the Orlando Police Department. Officer Hughes, upon entering spoke with Charles Veigle, one of the owners of the premises. While speaking with Veigle a dancer whose name is Alan Rogers was dancing on a table in front of the officer and to his left. On three occasions during the course of that dance the dancer exposed his sexual organs to the women who were seated at that table. These exposures only took a matter of seconds. Rogers was 25 or 30 feet away from officer Hughes and there were people seated between the officer and the activity. Again, it is not clear whether Charles Veigle or any other employee saw the exposure which took place. The Respondent, through its ownership had undertaken to insure that no such activity would occur, by requiring each of the dancers to sign a piece of paper saying that they had been instructed as to the rules for dancing. Essentially those rules, which were in writing and were signed, instructed the dancers not to touch the patrons, not to dance in the patrons face and not to allow the patrons to touch the dancer. Additionally, there was some testimony that announcements were made over the public address system at intervals reminding the dancers and patrons of the rules; however, it was unclear whether these announcements were made on the night of June 21, 1976, at the time that the two women witnesses, Salyer and Viaphiades and officer Hughes were in the premises. Kierstead read the paper and signed it on the night of June 21, 1976. Rogers, who had danced at the licensed premises on several other occasions could not remember reading and signing the paper on June 21, 1976, but did recall being told of the rules the first time he danced there. The dancers participating on June 21, 1976, were allowed to take tips from the patrons and were dancing for a $50.00 first prize to be paid by the owner of the licensed premises. In addition, each dancer was entitled to three complimentary drinks at the expense of the owners of the licensed premises. Part of the function of the door watchers was to walk around the room and insure no violations of the house rules on the subject of dancers were violated. Finally, in the past, on six occasions, participates other than Kierstead and Rogers had been removed from the licensed premises during the course of the male "Go-Go" dancers, for violation of the house rules as to conduct with the patrons or exposure of their sexual organs. This removal had been accomplished by employees of the licensee.
Recommendation It is recommended that the charges filed by the Petitioner against the license of Evelyns, Inc., t/a The Other Door, under license no. 58-375, series 4-COP as set forth above, be dismissed. DONE and ENTERED this 11th day of February, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence D. Winson, Esquire Division of Beverage 725 Bronough Street The Johns Building Tallahassee, Florida 32304 Harry N. Jacobs, Esquire Jacobs and Goodman Suite 126, 303 E. Altamonte Drive Altamonte Springs, Florida 32701
Findings Of Fact At all times pertinent to this hearing, Respondent possessed a valid 4- COP alcoholic beverage license, No. 39-589, and operated The Stardust Bar, located at 2631 East Lake Avenue, Tampa, Florida Reylius Thompson has been a state beverage officer assigned to the Fort Lauderdale district office for approximately four years. He has attended beverage school and a drug enforcement administration course, police standards training, and other various courses in law enforcement. Based on his training and experience, he is familiar with the sight, smell, and appearance of marijuana and with its method of smoking and-handling. He is also familiar with the sight and taste of cocaine. At approximately 6:30 p.m. on June 23, 1983, Mr. Thompson entered the Respondent's bar at 2631 East Lake Avenue, Tampa, to investigate the alleged serving of alcohol to minors and the sale of controlled substances. He entered the bar by himself, but Agent Carol Houston and a Tampa Police Department Officer Collins were already inside. When he entered the bar, he spoke with Officer Collins near the disco seat and sat down in the same general area. When he and Collins sat down, a black male came up and asked them to move to another table, as he kept his "stash" there. Thompson and Collins did as requested and observed the same male lift up the top of the table and remove from the hollow, oval center part a brown paper bag. Thompson asked the individual what he had in there, and the individual replied "5-cent and 10-cent pieces of cocaine." These terms mean a "deck" or a "hit," or less than a gram. Five cents equals $5, 10 cents equals $10, in value. Thompson then asked to buy a 10-cent piece. In response, the black male opened the bag and pulled out a foil package which he gave to Thompson in return for $10 in cash. This substance was subsequently determined to be cocaine. The black male referenced above identified himself as "Chick." After Thompson got the cocaine from Chick, he and Officer Collins walked back to another booth. Thompson observed two partially smoked cigarettes on the table. He picked them up, placed them in a napkin, and put them in his rear left pocket. They were subsequently determined to contain marijuana. While in the bar, Thompson talked for a while with the disc jockey named "Bobby," subsequently identified as Robert O'Neill. Thompson had stepped into the deejay booth and started a conversation with Bobby, asking if he, Bobby, had any cocaine. Bobby replied that no he did not, but called over another man called "Black Man," who spoke with Bobby and then asked Thompson if he was the one who wanted cocaine. When Thompson asked what he had, Black Man said "5-cent pieces." Thereafter, Black Man left, returning shortly with three small foil-wrapped packages which he gave to Thompson. Thompson only wanted one of the packages, for which he gave Black Man the sum of $5. This substance was subsequently identified at the lab as cocaine. O'Neill's protests that he did not do this because of his former dispute with "Black Man" notwithstanding, the weight of the evidence indicates that he did and I so find. Thompson also observed quite a few black males and females in the bar smoking marijuana. He also observed sales of marijuana, not only in the rear lounge area, but also out in front. He observed individuals pulling out brown paper grocery bags which appeared to contain already prepared packages of marijuana and cocaine. Thompson came back to the bar on the afternoon of Friday, June 24, 1983, and sat at the bar toward the center. One employee, Slim, was working behind the bar, and Thompson bought a half pint of liquor from him. At that point, he saw Chick standing down at the open end of the bar with a few other black males and females, about 10 feet away but in plain view. Thompson also saw a package of Kool cigarettes lying on the bar and observed Chick open a small, foil package and pour a small amount of white powder onto the Kool cigarettes. This foil package was similar to that which Thompson had previously purchased from Chick which contained cocaine. While this was being done, another employee of the bar, "Short Man," walked down to that end of the bar, standing right by the Kool cigarettes and the powder, and did nothing to have it removed. Thompson then walked over to Chick, who offered him some "good" cocaine. Thompson, however, declined to use any at that point, but asked if Chick had any to sell. Chick replied that he had a 25-cent piece, whereupon Thompson pulled $25 out of his pocket and gave it to Chick, who gave him the suspected cocaine. Thompson then went back to his seat in the center of the bar, but observed Chick and the others smoking what appeared to him to be a marijuana cigarette. He came to this conclusion from the smell and from the way the cigarette was held and passed around, all of which was common to marijuana use. Carol Houston has been a beverage officer with the Division of Alcoholic Beverages and Tobacco for about 2 1/2 years and is assigned to the Miami district office. She participated in an undercover investigation of The Stardust Bar in late June, 1983. On several occasions, she was accompanied by Officer Thompson. On the evening of June 24 at approximately 9:00 p.m., she went into the bar and ordered a "rum and Coke" from the male by the name of Tony working behind the bar. At this time, she noticed Tony smoking a cigarette handed to him by a patron. From the smell of the cigarette, with which she was familiar based on her training and experience, the cigarette appeared to be marijuana. She asked Tony if the "shit" he was smoking was any good and where she could get some. "Shit" is the street name for any contraband, narcotic, or substance. Tony called over a man by the name of Frank from whom Officer Houston made a purchase of a "nickel's worth" ($5) of a substance subsequently identified by the laboratory as marijuana. On June 25 at approximately 9:00 p.m., Thompson again went back into the lounge and sat at the bar where Slim was the bartender. At this time, he was accompanied by Agent Houston. While they were sitting there, Chick came up to Thompson and asked him if he wanted to buy any cocaine. In response, Thompson purchased a 5-cent package of what was subsequently identified as cocaine. Earlier that day, at approximately 4:30 p.m., when Thompson went into the bar, he saw a female barmaid subsequently identified as "Pat." While Thompson and Pat were talking, Chick came up and asked Thompson if he wanted to buy any "rock" (cocaine). Thompson said he did not know-- he wanted to see it. Consequently, Chick went to the rear of the lounge and came back a moment later with a foil package which he opened in plain view of Thompson and Pat, who said absolutely nothing about getting it out of the premises. Thompson looked closely at the substance, showed it to Pat, and asked Chick how much it was. Chick said "normally $25," but for Thompson, a special price of $20. Thompson paid Chick the $20 and got the substance, all during which time Pat, an employee of the bar, said nothing. This substance was subsequently identified as cocaine. Also on this date and at approximately the same time, Thompson observed numerous sales of marijuana and cocaine openly in such a manner that anyone looking could see what was going on. These sales took place primarily at the bar and at the jukebox. At approximately 7:00 p.m. the following Monday, June 27, 1983, Thompson went back in with Agent Houston, but when they got there, they split up. Thompson sat at the counter and observed that Pat and Tony were both behind the bar as barmaid and, ostensibly, bartender. Thompson talked with Pat at that time about things in general, but later asked her if she had any cocaine. She asked how much he wanted, and he replied that he wanted something small. Tony was standing nearby at that time, and Pat said something to him and told him to go get it. Tony went to the closed end of the bar, where he talked to a customer, and immediately came back, giving Pat five separate small foil packages. Thompson gave Pat $30, and in return she gave him the five small packages, after which she went to another area of the bar. She came back shortly thereafter and gave Thompson $5 change. A few minutes later, however, she came and asked Thompson for one of the five packages. Thompson said he could not give her one because they were for someone else and that person would be angry if he did not turn over the entire amount. Somewhat later that same night, Thompson was seated further back in the lounge at a table. He noticed a pregnant, black female (previously noticed by him to be selling marijuana) go to the bar counter where Houston was seated. He observed them have a conversation and saw her give Houston a cellophane bag. Houston confirmed this, stating that while she was sitting at the bar, she ordered a drink from Tony. Later, the pregnant, black female came into the bar. Houston asked Tony if what she was selling was any good, but Tony did not answer. When Houston said she should get some of the substance, Tony went out, got the pregnant female, and brought her back to Houston, whereupon Houston bought a bag of a substance subsequently identified as marijuana from the pregnant female paying therefor the sum of $10. Somewhat previously, on June 25, Houston was again in the bar, where she ordered a drink from Tony, who was `behind the bar. Later that day, she saw Tony down at the other end of the bar smoking what to her smelled like a marijuana cigarette. She called him over and asked him where she could get some. He asked what she wanted, and she said "a dime's worth of coke." Tony went away and came back shortly thereafter, giving her two foil packets, for which she paid him the sum of $10. The foil packets were subsequently identified to contain cocaine. Neither Houston nor Thompson ever saw Respondent, Elizabeth Gervais, in the bar. In fact, they rarely saw any white individuals in the bar. Thompson saw whites there twice--once when a younger white male was behind the bar talking to a bartender. This individual was there when Thompson came in and left within seconds after his arrival. The other time was when a white patron came in with a black patron, had a drink, and left. Houston only saw a young, white male on the premises on one occasion when she was there. At this time, the individual came in, went behind the bar, and then left. According to William B. Iler, Sergeant with the Tampa Police Department and supervisor of the street anti-crime squad (SAC unit), The Stardust Bar and the surrounding area is known to be in the area of heaviest concentration of street-level narcotics on this side of town. Within the law enforcement community, The Stardust Bar has a reputation of being a location where numerous narcotics transactions occur both inside and outside of the bar both day and night. His unit has been in and out of the bar since May 10 on numerous occasions, but never in response to a call from the bar. Respondent, Elizabeth Cervais, owner of The Stardust Bar and two others in the Tampa area, works full time for a private industrial concern on varying shift work, and operates the bars as a sideline investment. She is the only one with the authority to hire in any of the bars, although the Louis Charboniers, both senior and junior, who work for her in an operational capacity, have the authority to interview prospective employees. When she interviews, a substantial and important part of the interview concerns itself with whether the individual is a drug user or comfortable in the drug environment. If there is any indication that individuals use drugs, they will not be hired. If the individual is hired, he or she is told immediately that The Stardust Bar policy is: drugs are not permitted, drugs will not be used in the bar, drugs will not be used by employees in the bar, and no individuals who are not employees of the bar are allowed behind the bar. When she purchased The Stardust Bar, she was not aware of any drug problem, either there or at the others she owned. She has repeatedly told her employees to immediately call the police if there is any evidence of drugs being used or possessed in the bar. She contends she has also directed both junior and senior Charbonier to inquire of the police to see what they and she can do about the drug problem. She says she has talked with police officials, although she cannot give their names, but it appears to her that neither she nor the police can do anything about the drug problem. However, she did not check with the police or with the Petitioner as to the incidence of narcotics incidents prior to buying either this bar or any of the others that she owned, even though she knew that they were located in a high narcotics area. Several officers of the Tampa Police Department have spoken with Louis Charbonier, Jr., concerning drugs in the bar at varying times. None recall ever talking with Ms. Gervais and, of the contacts made by Louis Charbonier, Jr., most were as the result of calls to come to the bar because of reported use of narcotics going on at the time, and most have come within the three to four weeks prior to the emergency suspension after a young, underage, black female was shot by accident in the bar. Only one officer, Douglas Miller, can recall contacts with Charbonier going back a year and a half. Miller relates that on several occasions, Charbonier asked how he could clean up drugs in the bar, and Miller told him to contact the vice squad, but does not know if this was done. Most of these discussions with Miller took place other than in The Stardust Bar. In fact, though Miller has been in The Stardust Bar at least 200 times over the past year and a half or so, he has seen either Respondent, Gervais, or the Charboniers in the bar only five or ten times. In fact, to his knowledge, he has never seen a manager in the bar all during the time he has been going in there. Joseph E. Pelkington, Colonel of Operations of the Tampa Police Department, was assigned to look into allegations contained in a letter dated January 18, 1983, from Respondent's attorney to the Chief, Tampa Police Department, complaining of, in essence, police harassment of patrons in The Stardust Bar. The letter specifically complains about the repeated attention given to The Stardust Bar and the apparent improper conduct of police department officers in their handling of patrons in the bar. While the letter does not complain of legitimate responses to the bar by the police regarding actual cases of narcotics violations, in essence it complains that rather than too little attention being paid, too much attention is paid to The Stardust Bar by the police department. Louis Charbonier, Jr., works for Respondent as manager of her three bars and sees that they are fully stocked and run smoothly. At the time Respondent acquired this particular bar in the fall of 1981, there appeared to be no particular problem with drugs. However, in the last six months, the drug situation, according to this witness, appeared to be becoming more serious. As a result, he discussed this with the Respondent and was given orders by her to stop it. He claims he went to the vice department, though he cannot remember the officer's name with whom he spoke, and asked for assistance to come in and clean up the drug problem. According to Charbonier, he was told by the police that the problem was too small, and they could not waste their time on "nickel and dime stuff." He claims that within the last two months, he has made 20 to 30 requests to the Tampa Police Department for assistance in the form of reports of drug activities. Charbonier says that he goes to The Stardust Bar three times a day-- usually in the afternoon, in the evening, and at closing. On an almost daily basis, he has cautioned employees about keeping drugs out, has made reports to the police, and has contacted the police about having an off-duty or undercover policeman in the bar. In fact, he has offered the disco booth as an observation point, but so far has received no response from the Tampa Police Department. Notwithstanding this contention by Charbonier, other employees, such as Willie A. Cannon (Slim) and Robert O'Neill (Bobby), have seen him in the bar sporadically, not regularly. Not only Respondent but other employees, such as Becky and Slim, deny that Tony is an employee of the bar and that Tony has any legitimate basis for being behind the bar. They recognize, however, that it is possible from time to time that Tony has been behind the bar, though this is without permission of the Respondent or her organization. This was confirmed by Mr. Charbonier. There is, therefore, insufficient evidence to conclude that Tony is an employee of Respondent. Respondent seems to feel that her current difficulties are as a result of a concerted effort by the Tampa Police Department and the Division of Alcoholic Beverages and Tobacco to put her out of business because of her association with Louis Charbonier, Sr. In fact, when she bought The Stardust Bar and it was known that the Charboniers would be associated with her in some capacity in the venture, she was allegedly told by an agent of the Division of Alcoholic Beverages and Tobacco that they did not like her association with the Charboniers because Louis Charbonier, Sr., was an undesirable (convicted felon) . There is no other evidence to verify this allegation, however. Respondent contends, further, that prior to the last four months, she visited this and her other bars every day. However, during the last four months, because of her varying schedule at her primary occupation, she has basically turned the management and operation of her businesses over to the Charboniers, both of whom work for her, but neither of whom has a financial interest in any of her enterprises. Though she has no formal staff meeting, though she has no formal or written operating instructions, and though nothing is placed on a bulletin board to substantiate or publicize her policies regarding drugs, she contends that she talks with each employee at least once a week, either through the Charboniers or by telephone, and repeatedly emphasizes her non-drug policy. In addition, she has had three large signs posted on the premises stating "no drugs allowed," but has had to replace these frequently because they are torn down by the patrons. To the best of her knowledge, there is only one in place at the present time. By her own admission, she had not been at The Stardust Bar for at least two weeks prior to the Emergency Order of Suspension being issued.
Recommendation On the basis of the foregoing, it is RECOMMENDED: That Respondent's alcoholic beverage license, No. 4-COP, 39-589, be revoked. RECOMMENDED this 27th day of July, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Michael D. LaBarbera, Esquire LaBarbera & Campbell Suite 2A, 620 Madison Street Tampa, Florida 33602 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact On March 3, 1976 Leon County Deputy Sheriffs armed with a search warrant and accompanied by a beverage agent visited the Starlight Club to search for marijuana. The beverage agent did not enter the premises. When a search of the Starlight Club failed to disclose any marijuana the mobile home parked behind the Starlight Club was searched and therein more than 5 grams of cannabis was found. The mobile home is owned by Respondent Smith, but was leased to Hugh Lee Ott who occupied the mobile home as his residence. Ott was in the employ of Respondent as manager of the Starlight Club at the time of the alleged offense. Ott was arrested and subsequently tried and convicted of possession of cannabis in an amount greater than 5 grams.
Findings Of Fact Central Florida Clubs Number 2 was the holder of the State of Florida Alcoholic Beverage License-Number 58-696 for the period October 1, 1976 through September 30, 1977. DABT seeks to assess a civil penalty against Central Florida Clubs Number 2 or to suspend or revoke its beverage license on the grounds that nine (9) violations of Section 847.011, Florida Statutes, occurred on the premises of the Central Florida Clubs Number 2 on May 11, 1977. On that date, dance routines involving topless female dancers touching male customers in a sexually suggestive manner occurred on the premises. No evidence was introduced purporting to establish that any of the dancers were agents or employees of Central Florida Clubs Number 2. Accordingly, it is found as a matter of fact that the dancers were not agents or employees of Central Florida Clubs Number 2. No evidence was introduced purporting to demonstrate whether to the average person applying contemporary community standards, the dominant theme of the material, taken as a whole, appealed to prurient interest. Accordingly, it is found as a matter of fact that to the average person applying contemporary community standards, the dominant theme of the material presented at the Booby Trap taken as a whole did not appeal to prurient interest. No evidence was introduced purporting to establish that David Lee Feller was an agent or employee of Central Florida Clubs Number 2., Accordingly, it is found as matter of fact that David Lee Feller was not an agent or an employee of Central Florida Clubs Number 2.
Findings Of Fact The Respondent, Inside Entertainment, Inc., which trades under the name of Fox Hunter, is the holder of beverage license No. 58-770, Series 2-COP. This license allows the consumption of alcoholic beverages on the premises, located at 1718 South Orange Avenue, Orlando, Florida. The petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida which has as its responsibility the licensure and regulation of beverage license holders in the State of Florida. On November 15, 1979 , Beverage Officer W. R. Wiggs entered the licensed premises of Fox Hunter to investigate alleged Beverage Law violations. He was approached by Linda Kay Fardette who offered to give him a "lap dance," which he accepted. To perform the "lap dance," Ms. Fardette straddled Officer Wiggs' lap, rubbing her pubic area against his genitals in a series of gyrations performed during the playing of a musical recording. She wore a bikini bottom, however, her breasts were bare and made contact with Wiggs during the "lap dance." Ms. Fardette offered a second "lap dance" to Officer Wiggs which he also accepted. She asked and received three dollars for each of the two "lap dances." During these "lap dances," Officer Wiggs became sexually aroused, obtaining penile erection. (Count 3). Officer Wiggs observed Ms. Fardette move to the stage to perform a dance routine announced over the public address system. During this dance, Ms. Fardette removed all her clothes and exposed her vagina to patrons in the audience. She ran her finger through the lips of her vagina while so exposing herself. (Count 1). Officer Wiggs was approached by Brenda Macy Janciak, who offered him a "lap dance." He accepted and paid three dollars for each of two "lap dances." The motions, upper body nudity and contact were similar to that of Linda Kay Fardette, detailed above. Officer Wiggs was sexually aroused during the "lap dances," obtaining penile erection. (Count 4). Officer Wiggs observed Ms. Janciak move to the stage upon introduction over the public address system. During the dance routine, Ms. Janciak removed all her clothes and exposed her vagina to patrons in the audience. She ran her finger through the lips of her vagina while so exposing herself. (Count 2). On November 15, 1979, Beverage Officer J. E. Kiker, Jr. entered the licensed premises of Fox Hunter to investigate alleged Beverage Law violations. He observed Bonnie Joy Sawyer onstage, where she was introduced by a mistress of ceremonies. Her dance involved complete nudity. At one point, Ms. Sawyer spread her legs, exposing her anal-vaginal area, which she illuminated with a cigarette lighter. The dance also involved rubbing her pubic area with her hand and moving her hips in an undulating fashion. (Count 5). Office Kiker observed Leah Damaris Wilson perform a similar dance onstage. Again, this dance involved total nudity, exposure of her anal-vaginal area and illumination of this area with a cigarette lighter. (Count 6). Officer Kiker observed Wendy Kay Knight perform a nude dance. She was introduced by the mistress of ceremonies, disrobed during the dance sequence, exposed her vagina and rubbed her pubic area during the dance. (Count 9). Wendy Kay Knight also performed a "lap dance" with Officer Kiker for a five-dollar charge. The "lap dance" was performed as described above and involved the rubbing of Ms. Knight's pubic area against Officer Kiker's genitals. Her breasts were bare and made contact with his person. Officer Kiker became sexually aroused during the "lap dance," obtaining penile erection. (Count 14). Officer Kiker observed a woman known as "Marlene," who was dancing onstage. She approached him and offered to perform a "lap dance" for a charge of five dollars. The "lap dance" was performed as described above, with "Marlene" rubbing her pubic area against Officer Kiker's genitals. Her nude breasts made contact with him during this dance. Officer Kiker became sexually aroused during the dance, obtaining penile erection. (Count 15). On November 19, 1979, Beverage Officer M. L. Imperial entered the licensed premises of Fox Hunter to investigate alleged Beverage Law violations. He observed a woman known as "Nina" on the stage. She disrobed onstage and was totally nude during a portion of the dance. During this routine, she bent over, exposing her vaginal and anal openings to the audience and running her finger through the lips of her vagina. (Count 7). Officer Imperial observed a woman known as "April" dance onstage while completely nude. She performed essentially the same gestures as "Nina," bending over so as to expose her anal and vaginal openings and running her finger through the lips of her vagina. (Count 8) Officer Imperial observed Darlene Helen Poulliot dance onstage partially nude. She performed a dance routine similar to that of "April" and "Nina," hut did not remove the bottom of her bikini costume. (Count 10). Officer Imperial observed a woman known as "Sunny" dancing while completely nude. She spread the lips of her vagina and used a cigarette lighter to illuminate this orifice. She also ran her finger through her vaginal lips. (Count 12). Officer Imperial was approached on separate occasions by Bonny Joy Sawyer and Leah Damaris Wilson, who each offered him "lap dances." He accepted one "lap dance" from Ms. Sawyer and two from Ms. Wilson, paying five dollars for each "lap dance." The women straddled Officer Imperial, rubbing their pubic areas against his genitals and performing a series of gyrations. The women wore only bikini bottoms and had breasts exposed during the "lap dance." Officer Imperial did not become sexually aroused. (Counts 16 and 17). The Respondent stipulated to the fact that the stage dancers received tips from patrons and did not contest that the above named dancers were employees or agents of the licensee. Neither did Respondent deny that the stage dancing and "lap dancing" were within the scope of their employment. Respondent takes the position that nude dancing is generally tolerated in the Orlando area and that "lap dances" do not constitute sexual behavior as Petitioner asserts. Respondent presented, as an expert witness, an associate professor of psychology at the University of Central Florida. The witness holds a doctorate in psychology and teaches courses in human sexuality. This testimony established that nude dancing and "lap dancing" are typical in the so-called adult entertainment field. While he did not deny the sexual connotations of these dances, he established that fantasies play a part in the arousal of male patrons. In this regard, Respondent also presented a lay witness who frequents topless bars and who has not been aroused by "lap dances."
Recommendation Based on the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violating Section 800.03, Florida Statutes (1979), as charged in Counts 1, 2, 5, 6, 7, 8, 9 and 12 of the Notice to Show Cause/Administrative Complaint. It is further RECOMMENDED that all other charges alleging violation of Section 800.03, Florida Statutes (1979), be dismissed. It is further RECOMMENDED that all charges alleging violation of Section 877.03, Florida Statutes (1979), be dismissed. It is further RECOMMENDED that Respondent, Inside Entertainment, Inc., d/b/a Fox Hunter, be fined $1,000. RECOMMENDED this 5th day of February, 1981, in Tallahassee, Leon County, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1981. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard L. Wilson, Esquire Metcalf Building, Suite 909 100 South Orange Avenue Orlando, Florida 32801
Findings Of Fact The Respondent, Caldo Corporation, d/b/a Calypso Bay Club, operates a place of business in Clearwater, Florida, where consumption on the premises is permitted under license number 62-928, Series 4-COP SRX. The licensed premises consist of some 18,000 square feet. Seven permanent bars are located within the perimeter walls of the licensed premises. No interior walls separate the bars, and they are not located in separate rooms. The seven bars are located in different parts of one large, generally open room. A customer entering the Calypso Bay Club first enters a combination foyer/seating area. From this area, a customer can see throughout the area where the seven bars are located. All seven bars in the licensed premises are visible, at least in part, from the entrance foyer/seating area, although the view to some parts of the premises may be blocked. Two of the bars are located within an unobstructed, open lower level which is generally in the center of the premises. There is a dance floor in this lower level. The other parts of the licensed premises are located on deckings that are raised to varying heights above the dance floor area. One of the bars, known as the Oyster Bar or bar number 7, is located on its own decking to one side of the dance floor area (to the customer's right on entering the premises.) It is three and a half steps, or approximately 18 inches, above the dance floor level. The other bars are arrayed on deckings on the other side (to the customer's left on entering the premises). Except for a lower, middle decking, the deckings on the left side of the premises are two steps, or approximately 12 inches, above the dance floor level. In the middle of that side, the decking is slightly lower than either the decking in front of it or the decking to the rear of it. One of the bars, known as the Fufu bar or bar number 5, is located on the middle decking. The other bars on that side are on one of the two higher deckings. The bar known as Deck 1 (bar number 4) is on a decking that wraps around to the entrance foyer/seating area. The bars known as Deck 2 (bar number 3) and the Corner bar (bar number 2) are on a decking located beyond the lower, middle decking. Throughout the premises, where the flooring changes elevation, there is a wide, flat wood rail approximately 42 inches above the floor of the raised decking. The railing sits on top of, and is supported by, thick wood posts similar to posts used in the construction of docks. Thick hemp rope, consistent with a waterfront motif, also is wound around the posts and draped between them under the rails (as Christmas garland would be draped on a stairway bannister). All except in the area of the Oyster Bar (bar number 7), a smaller slat of wood about the size of a one by four also is nailed to the posts about five inches above the floor of the decking, forming a lower fence rail as well. In some places, banners are also hung from the railing. The railing separating the different elevations serves two primary purposes. First, it is for safety to prevent customers from accidentally falling from a higher to a lower floor elevation. Second, it also serves as a counter on which customers standing or sitting on the higher elevation can set drinks or ash trays. Openings in the railing permit customers to walk from one bar area to another. The deckings are accessible from the dance floor area by six fairly wide stairways. As previously mentioned, the stairway to the Oyster Bar has three steps; the others have just two steps. Nothing separates the Corner bar (bar number 2) from the Deck 2 bar (bar number 3). Likewise, there is direct access from part of the Deck 2 bar to the Fufu bar (bar number 5). To one side of the Deck 2 bar, a railing separates the two elevations, but a railed ramp in the middle of the railing connects to two areas. It also is possible to get from the Fufu bar to the Deck 2 bar, without having to descend to the dance floor level, by walking from the Fufu bar, around a wood column, and step up one step to the area of the Deck 2 and Corner bars. The Deck 1 bar (bar number 4) is the closest to the entrance foyer/seating area of the bars on that side of the premises. There are two ways to get from the Fufu bar to the Deck 1 bar. First, there is virtual direct access between the Fufu bar and the Deck 1 bar. Bar number 5 (the Fufu bar) is in an area one step lower than the other bars on that side of the dance floor area, including the Deck 1 bar. There is a short railed ramp that goes up alongside a wood column standing between the two bars. From the top of the ramp, there is direct access to the Deck 1 bar; from the bottom of the ramp, there is direct access to the Fufu bar. There also is indirect access by walking to the side opposite the ramp side into a small seating area. The seating area is separated from the Deck 1 bar by the one-step change in elevation and by a railing and two video games. There are two gaps in the railing where one can step up into the area where the Deck 1 bar is located.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order dismissing the Notice to Show Cause in this case. RECOMMENDED this 15th day of January, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1992. 1/ The Petitioner also offered in evidence Petitioner's Exhibit 7, a videotape to which the Respondent objected. At the hearing, ruling was reserved. At this time, the objection is sustained. The videotape is immaterial and irrelevant to the issue in this case, which is whether the Calypso Bay Club "has more than three separate rooms or enclosures." See Conclusion of Law 9, below. 2/ The evidence of the legislative history in this record may not be clear and complete. No such evidence was introduced at the final hearing. The Department attached to its proposed recommended order what appear to be certified copies of committee reports on the legislation. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5784 To comply with the requirements of Section 120.59(2), Fla. Stat. (1989), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-3. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. However, the lines referred to in the last sentence did not completely separate the five bars from the two bars; the drawings included the designation of steps leading from one elevation to another. Accepted but subordinate and unnecessary. There are two proposed findings 6. This addresses the first of them. Subpart d. is rejected as not proven. The "small exposed part of bar 3" is not "cordoned off," and there is no wall. It is accessible from the steps from the dance floor area closest to the bar by walking from the steps to the bar, passing between the railing along the dance floor area and the partial wall (actually more like a wood column). (There also is access from the Corner bar and from the Fufu bar.) Subpart e. is rejected as not proven. There is direct access, as well as indirect access, as stated above, subpart d. Subpart f. is rejected as not proven. The "cordoned" railing has an opening through there is access to the Deck 1 bar (bar number 4). The Deck 1 bar also is directly accessible from the Fufu bar and from the entrance foyer/seating area. Subpart g. is rejected as not proven. Bar number 5 is not enclosed. It is accessible by four alternative routes. There is direct access between part of the Deck 2 bar (bar number 3) and bar number 5. There also is access to other parts of the Deck 2 bar from the steps from the dance floor area closest to the bar, as described in subpart d., above, as well as via a ramp through an opening in the railing along the change in elevation between the two bars. Finally, bar number 5 is accessible from the Deck 1 bar as described in subpart f., above. Otherwise, the first proposed finding 6 is accepted and incorporated. The second proposed finding 6 is rejected in part as not proven. As previously stated, there is direct access between the Corner bar (bar number 2) and the Deck 2 bar (bar number 3), as well as between part of the latter bar and bar number 5 (the Fufu bar.) Otherwise, accepted and incorporated. Rejected in part as not proven. The televisions hang from the ceiling or are on a wood column, and the game machines are placed next to railings. Neither serves to form a separate barrier. The ropes do not in all cases, and in any case were not primarily intended to, separate bar areas. They are all along the upper level at an elevation change or are along steps or a ramp between two different elevations. 8.-9. Rejected as irrelevant to the question whether there are more than three "rooms or enclosures." See Conclusion of Law 9, above. Rejected in part as not proven (last sentence); in part, accepted but subordinate to facts contrary to those found (first three sentences). The evidence suggested that the railings are there for two primary purposes. See Finding of Fact 6, above. The effect of the use of the railings as a bar counter was as much to join as to separate the various parts of the bar. A customer could put a drink, food or ash tray on one of the railings, or lean on it, and observe parts of the premises on the other side of the railing. Rejected in part as argument and in part as not proven. The testimony regarding shortness of funds was part of an answer to a question on cross examination as to why there were different kinds of chairs and stools on the premises. The owner's intent and desire to increase profits does not prove liability for the additional $1,000 fee. The critical issue is the existence of more than three rooms or enclosures, a fact not proven by the evidence. Respondent's Proposed Findings of Fact. 1. Accepted but unnecessary. 2.-3. Accepted and incorporated. Rejected as being conclusion of law or argument. First sentence, rejected in part in that it is not "completely open." Third sentence, rejected in part in that there was no evidence to prove that the ramps are "fully handicap accessible." Fourth sentence, rejected in part in that there was no evidence to prove what the building code requirements were. Otherwise, accepted and incorporated. Accepted and incorporated. 7.-8. Rejected as conclusion of law. COPIES FURNISHED: Monica Atkins White, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Harold F. X. Purnell, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road Post Office Box 6507 Tallahassee, Florida 32314-6507 Richard W. Scully, Director Div. of Alcoholic Beverages and Tobacco Dept. of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Donald D. Conn, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee Florida 32399-1007
