Findings Of Fact The Respondents, Sandra Hoskins and Michael Mancuso, (the licensees), hold license number 62-957, Series 4 beverages by the drink for consumption on the premises of Sweethearts, located at 408 U.S. 19 South, Clearwater, Florida. Sweethearts is known as a bar where, in addition to buying alcoholic beverages, the mostly male patrons can watch "exotic dancing" on stage and pay $5 plus tip for a "lap dance." The dancers are physically attractive females dressed in underwear or "T-back" bathing suits. 1/ They are engaged by the management of Sweethearts to perform at Sweethearts. As they dance on stage, the disc jockey on duty introduces them by their stage names to the patrons present and encourages the patrons to ask the dancers to perform "lap dances" for them personally. The dancers also directly solicit "lap dances" from the customers. At the end of each shift, each dancer "tips out" $10 to the "house," i.e., pays the licensees $10, and "tips out" $5 to the disk jockey. As evidenced by what took place at Sweethearts on April 13 and August 25, 1989, a "lap dance" typically lasts for one song played by the disk jockey. The dancer escorts the patron to one of the booths lining the perimeter walls of the bar area, sits the patron down near the edge of the booth bench and begins "dancing." During the "dance," which is performed to the rhythm of the music, the dancer rubs various parts of her body, including the genital area, buttocks and breasts, against various parts of the body of the customer, including his genital area and face. Although the customer remains fully dressed during the "dance," and the dancer does not remove any clothing (i.e., she remains dressed either in underwear or in her "T-back" bathing suit), the "dance" is intended to simulate various sex acts, and purpose of the "dance" to arouse the customer sexually. Sometimes, the "dancer" fondles herself and acts as if she herself is becoming sexually aroused by the "dance." Sometimes, the customer rubs the breast area of the "dancer" or grabs her buttocks in the area of the anal cleft, and the "dancers" typically do little to stop or deter this behavior. Although the "lap dancing" occurs in a part of the bar where the lighting is red and subdued, it is highly implausible that the licensees, if on the premises, or the licensees' representative(s) on the premises would not know that the "lap dancing" described above was taking place on the premises. It is open and notorious. There was some evidence that there might be a nominal official policy at Sweethearts prohibiting patrons from touching the dancers. But the evidence is clear that management "winks at" violations of this official policy, if there indeed is one, and management policies in place at Sweethearts encourage the dancers to allow the patrons to touch them. (Allowing it to continue increases the chances of getting tips from customers such as these.)
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 revoking license number 62-957, Series 4-COP, issued to the Respondents, Sandra Hoskins and Michael Mancuso, d/b/a Sweethearts, located at 408 U.S. 19 South, Clearwater, Florida. RECOMMENDED this 25th day of October, 1990, 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 25th day of October, 1990.
The Issue The issue for consideration in this case is whether Respondent’s alcoholic beverage license Number 39-01036, Series 4-COP, for the premises located in the 900 block of Franklin Street in Tampa, Florida, should be disciplined in some manner because of the matters alleged in the Notice to Show Cause entered herein.
Findings Of Fact At all times pertinent to the issues herein the Petitioner, DABT, was the state agency responsible for the issue of alcoholic beverages licenses in Florida and the regulation of the sale and consumption of alcoholic beverages in this state. Respondent, Bay Entertainment, Inc., now known as Freedom Rings Entertainment, Inc., operated a night club, Solar, in the 900 block of Franklin Street in Tampa. There is some disagreement as to whether the facility was located at 911 Franklin Street or at 913 Franklin Street. The confusion is irrelevant to the issues for consideration since there is no indication a different club was operating at the second location, and there is no question regarding the identity or the licensure of the facility where the indicated misconduct was alleged to have taken place. The operation was licensed by the Petitioner under alcoholic beverage license number 39-01036, 4-COP. DABT S/A Elaine Paven first went to Solar on December 13, 1996 at approximately 11:55 p.m.. At the time, she was accompanied by S/A Murray and a confidential source. After paying the cover charge to the doorman, the party was directed to the second floor of the facility where the bar was located. From that location, they could look down to the first floor where another bar and the dance area were located. When Paven and her party went to the bar, she observed Tiffany Middlesexx, a transvestite and known narcotics user, sitting on the bar against the wall. Several male dancers, either wearing only a G-string or nude with a towel over their privates were performing. Paven and Murray went up to Middlesexx and asked to buy cocaine. Middlesexx asked them how much they wanted, and Paven gave the confidential source twenty dollars to buy some. The source gave the money to Middlesexx who, in return, gave the source a white powder which, in turn, was delivered by the source to Paven. All during this transaction, employees of the facility were routinely working in the immediate area. Other patrons appeared to be buying from Middlesexx as well, though Paven drew this conclusion only from her observation of individuals who approached Middlesexx as her source did. Paven has no direct knowledge of whether cocaine or any other proscribed drug was transferred from Middlesexx to the other patrons or whether money was transferred. In addition, however, as Paven and her party were leaving the club that night, she observed another known cocaine dealer, not further identified, enter the club. Paven next went to Solar on December 21, 1996. Tiffany Middlesexx was again sitting on the bar as before. Paven approached Middlesexx and asked for cocaine. In response, Middlesexx asked how much Paven wanted, and Paven transferred twenty dollars to Middlesexx. With that, Middlesexx took a packet of white powder out of the purse he/she was carrying and gave it to Paven. Paven saw several other similar transactions by Middlesexx that evening, during which Solar employees were present and could have observed them, and at no time did any club employee attempt to interfere with or prevent the purchases. That same evening, up on the second floor of the bar, Paven overheard a conversation between two other patrons who were discussing obtaining Ecstasy, also a proscribed narcotic. In addition, she observed patrons exiting the rest rooms snuffing and rubbing their noses which, to her, based on her training and experience, was indicative of drug use. Paven next went to the club on the evening of January 10, 1997, arriving just before 10:00 p.m. and staying until after midnight. During that period, however, she left for a short while and returned. Sometime that evening, during a conversation with Dennis, a bartender on the second floor, he told her that the club took a liberal and permissive approach toward drugs, and that the owner usually stayed on the first floor. Paven also went to the first floor that evening and, while in the restroom, notwithstanding signs posted prohibiting more than one person in a stall at a time, observed patrons go into the stalls in groups, and heard snuffing sounds coming from them which to her, under the circumstances, indicated the use of narcotics, usually cocaine. She did not observe and use however, nor did she confiscate for testing any of the substances involved. On her return to the second floor that evening, Ms. Paven met with another patron, identified as Darren, who spoke in general of the use of narcotics in clubs. She recalls no specific reference to the use of narcotics at Solar, however. Before she left the club that night, in another conversation with Dennis, the bartender, she mentioned she was going to get “party favors,” and he used the word, “stuff.” Both, in the vernacular of the drug milieu, relate to narcotics. That same night, though early in the morning of January 11, 1997, Paven additionally saw Tempo, also a transvestite male and a known cocaine dealer, on the second floor of the club. Another transvestite male, Gilda, was also there, at the bar, with Tony, who identified himself as an off-duty employee there, at the time, as a patron. Paven approached Tempo and offered him/her $20.00 for which, in return, she received a plastic bag of a substance later identified as cocaine. Dennis, the bartender, was standing behind the bar right there and, in Paven’s opinion, could not have failed to observe the transaction occur. Tony was, in fact, not an employee. He had been employed at the club as a bar back before the club opened for business but was injured within the first few minutes on the job and never returned to work. Agent Paven again went to the club at 10:45 p.m. on January 17, 1997, but left shortly after arriving and did not return until early on the morning of January 18, 1997. At that time Dennis was on duty as bartender and a group of individuals, known to Paven as drug dealers, including Tempo, Tony, and Brittany, were also present. At approximately 1:15 a.m. that morning, while up on the second floor, Paven was approached by Tony who told her he was leaving and offered to get her “something” before he left. Paven gave Tony $20.00, after which he went over to a group at the end of the bar and immediately came back with a bag of a powdered substance which he gave to her. He then asked her to save him a “bump,” which, in the drug culture, means a hit of cocaine. That same evening, Paven observed three male dancers performing down on the first floor. Two of these were nude. As she watched, she saw patrons approach the dancers and give them tips to be allowed to fondle their private parts. Dennis came downstairs while this was going on, jumped on the bar, and removed his shirt, and lowered his pants to reveal his buttocks and, presumably, his genitals, to the patrons. Dennis admits to climbing on the bar, removing his shirt, and displaying his buttocks, but denies revealing his genitals. Paven also observed some of the dancers leave the stage and approach patrons who would then touch the dancers’ genitals. Galiano, a known cocaine user, was there that night, going back and forth from Tempo to Brittany, and into a back room reserved for employees. Paven observed her at the time, snuffing and rubbing her nose, though she did not observe any direct use of any substance. Later that evening, in a discussion with Paven at the bar on the second floor, Galiano denied having any cocaine to sell but offered Paven a line of cocaine if she would come downstairs to the restroom. When Paven went downstairs with Galiano, she was given the line of substance, thereafter pretending to use it but in reality not doing so. While on the first floor, Paven asked Tempo if she had any coke. In response, Tampo said she was out, but had an order for more in and was waiting for delivery. On January 25, 1997, Paven was in Solar looking for Tiffany Middlesexx. Tony approached her and asked if she wanted any cocaine. Paven said she did and gave Tony $20.00. Approximately five minutes later, Tony came back and gave her a bag with a substance in it which was purported to be cocaine. He then suggested he and Paven go somewhere for a “bump.” Taking Paven upstairs, Tony then poured some of the substance out onto the back of her hand for her to snort it. He did the same for himself and actually ingested it, while Paven dumped hers out. That same night Tony told Paven not to go to a second bar mentioned because a raid was planned. Also the same night, Tiffany Middlesexx and Tempo were present at the club, as was the club’s chief of security, Tim, who was known to Paven as a drug dealer. Paven also observed nudity by the dancers, and sexual fondling of the male dancers for tips by some patrons, and she heard discussions between patrons about getting cocaine from elsewhere, but she did not observe any transfers take place. Agent Paven returned to the club on January 28, 1997, a slow night for business. She observed one of the male dancers dancing on top of the first floor bar and witnessed several instances where the dancer squatted in front of a patron who, it seemed to Paven, committed fallatio on him in front of other patrons. This was repeated with several patrons while Paven, as well as Agent Murray, who was also present, watched. Paven brought this to the bartender’s attention, but the bartender denied seeing anything untoward. On February 1, 1997, at approximately 1:34 a.m., Paven again entered Solar and proceeded to the first floor bar area. Tiffany Middlesexx was again sitting in his/her regular spot on top of the bar, and Paven asked if he/she had any cocaine for sale. In response, Tiffany Middlesexx offered Paven three bags for $50.00 or single bags for $20.00 each. When Paven handed over $50.00, Middlesexx opened up his/her purse and took out three bags of cocaine which was transferred to Paven. All this time, another patron was waiting and made a purchase when Paven was through. Paven also observed several other identical transactions take place with other patrons that same evening though she cannot say with certainty what substance was passed. Since the procedure was the same, it is likely the substance transferred to the other patrons was also cocaine, and it is so found. Middlesexx subsequently left the premises while Paven was still there. On February 8, 1997, Paven went back to Solar, arriving at 12:45 a.m. She went to the first floor and again observed Tiffany Middlesexx sitting in the regular spot on the bar. Paven approached Middlesexx and asked for cocaine and subsequently gave Middlesexx two $20.00 bills, in return for which she received two bags of cocaine. At this time, other employees of the Respondent were present behind the bar, and in Paven’s opinion heard and observed the transaction. Paven also watched a white male buy four bags of apparent cocaine from Middlesexx from no more than five feet from where the transaction took place. After making his purchase, that same white male showed the bags he had purchased to his friends and the group departed. Later that evening, on the second floor of the club, Paven purchased one zip-lock bag of what appeared to be cocaine from Tempo because Tempo did not want to deal on the first floor. Paven paid Tempo $20.00 for it. At no time during any of the above mentioned visits did any of the Respondent’s employees or management try to stop the purchases. The only warnings Paven heard were to watch out for the police. Paven claims she didn’t see any signs prohibiting drug activity in the club, nor did she observe club employees prohibit sales to other patrons. On any given night she was there, Paven would observe six or seven individuals on the premises who were known to her, from prior buys or sales, some of which took place within Solar, to be drug dealers. The parties stipulated that the substances purchased by Paven from individuals inside the club was cocaine. While Paven denied seeing any signs prohibiting the use or sale of drugs in the club other than in the restroom, she admits there were some signs at the entry, but even then, she cannot be sure of what the signs there said. Another sign in the bathroom prohibited more than one person in a stall at the same time. There is no doubt that the noise level in the club when the music was playing and the club was full was considerable. Club employees contend that it would have been impossible for them to hear any of the conversations between Paven and any of the individuals from whom she bought drugs because of it, because they even had to bend over the bar to hear patrons’ orders for drinks. However, Paven and Murray both insist they were able to hear and contend the bartenders, while possibly not able to hear the exact conversations taking place during the buys, could not have failed to observe what was going on. The noise certainly did not dissuade anyone from buying or selling. In addition, Paven observed security personnel hired by management passing through the club from time to time. These individuals would stop and talk to patrons and would attempt to prevent patrons from jointly occupying the restroom stalls. This served to halt drug sales while the security officer was present, but the activity resumed when the officers left. Most of the drug transactions which took place between Agent Paven and Middlesexx or Tempo were witnessed from three to four feet away by Agent Murray as well. Murray notes that whenever Paven tried to make a buy from Middlesexx, there was always someone in line before them, and Murray also observed what appeared to be drug purchases by other patrons from Middlesexx. Usually a bartender was in the immediate area of the purchase transaction. Murray cites, by way of exception, the incident on January 25, 1997, when Tony took Agent Paven to another area of the bar. Though Murray observed anywhere from six to seven drug dealers on the premises, known to her as such from prior investigations, at no time did she ever see an employee of the club, or a member of management, try to interfere with a transaction, nor did anyone ever state that such activity was illegal. It seemed as though the only concern expressed by anyone employed by the club related to the potential for the use of undercover police. Murray also observed male dancers at the club engaged in conduct which, it appeared to her, was salacious and obscene. It appeared to her than some patrons committed actual acts of fellatio on the dancers who would squat on the bar or dance floor in front of them. On at least one occasion, Murray changed her location at the bar so as to be able better to see what was going on. In her opinion, there was no doubt as to the nature of the activity. Notwithstanding the allegations of both Paven and Murray regarding the obscene activity, Diane M. Smith, the owner of the dance group which performs at Solar, categorically denies that any such activity took place involving her employees. Normally, she claims, she was present whenever her dancers performed. At any given time, she had three dancers active. One was on the center podium, one on one of the bars, and one was on break. Her dancers would wear jeans for the first set and shorts, or possibly a T-back, for the second set. She adamantly asserts there was no nude dancing or lewd or lascivious conduct permitted. She would not permit it, and management knew that. Her dancers performed from approximately 11:30 p.m., until 2:00 a.m., and at all times, there were two chaperones present. She was also often present before and after the show, and she never saw any conduct as described by Paven or Murray. This relates to drug activity as well as activity regarding the dancers. In fact, she claims, management made it very clear that drug activity was not permitted in the club. Jeffery Winemiller, who has a college degree and who attended medical school for two years before personal commitments brought him back to the Tampa area from California, was working at Solar as a bartender the night the Emergency Order of Suspension was entered. Mr. Winemiller has attended Responsible Vender training several times and is aware of how to check among patrons for drug use and abuse. He usually worked on the first floor at the rectangular bar on Friday and Saturday nights, and occasionally on other nights as well. Mr. Winemiller contends that while he worked at Solar, he never witnessed any drug activities or any oral sex being conducted on the premises. He claims there were signs at the front door and in the rest rooms warning against the use of drugs in addition to signs prohibiting entrance to persons under age and prohibiting more than one person in a restroom stall at any one time. Neither the men’s nor the women’s restroom had entry doors. Only the women’s restroom had doors on the stalls. Tiffany Middlesexx is a known drag queen - a performer in his/her 50’s, who is very well known in the transvestite community. Whenever he/she comes into Solar, he/she would have an entourage of from three to six people with him/her. Middlesexx would usually position himself/herself on the L-shaped bar on the first floor across from the dance podium on a space which was cleared for him/her. According to Winemiller, normally a bartender would not be working in that immediate location. As Winemiller recalls, Friday nights are rather quiet until after midnight, when up to seven hundred people might be in the club. During the period from midnight to club closing, a bartender might serve several hundred drinks and would be too busy to note what any particular patron was doing. In addition, as he described it, the noise level was high, and he would not be able to overhear any patron conversations. Specifically, Winemiller contends, he did not see Middlesexx or any of the other dealers described by Paven and Murray sell drugs in the bar, nor did anyone ever tell him anyone was selling drugs. As told to him, ownership policy on drugs was no tolerance. Any drug activity was to be reported to management or to security. By the same token, no lewd sexual activity was permitted either. Mr. Winemille claims he does not know Tiffany Middlesexx, Tony, or Tempo to be drug dealers. He claims not to use drugs himself and professes not to know who does. As a result of this raid and the closing of the club, he is now out of a job. In addition, his loan of $35,000 to Mr. Engerer to start up the operation is in jeopardy, though Winemiller contends he is not concerned about this. Donald Bentz, an employee of the Tampa AIDS Network has been in Solar on several occasions as a part of his work. He knows Mr. Engerer well and was a regular customer from May 1996, when the club opened, until it closed. During that period, he went there at least once a week and claims he never saw drug activity or lewd acts being carried on there. Mr. Bentz goes to several gay-oriented clubs as a part of his job and has put on fund raising functions with some of them. Because of his organization’s non-profit status and the thrust of its activities, it is careful with whom it operates and carefully checks out any operation before becoming involved with it. Mr. Bentz knows Tiffany Middlesexx as a transgendered performer who is popular in the gay/transgender community. On several of the occasions when he has been at Solar, Mr. Bents has seen signs permitting only one person at a time in the rest rooms and recalls seeing a sign stipulating no drugs allowed at the entrance. In addition, he has seen security personnel routinely checking for drugs. Though Bentz has heard rumors that Middlesexx deals drugs, he claims never to have seen it at Solar nor did he ever see anyone do or talk about illicit drugs on the premises. In his opinion, both Mr. Engerer and Mr. Winemiller considered drugs to be out of bounds at Solar. They wanted a long-term, drug-free relationship with the gay community. In Bentz’ opinion, if either member of management heard of drugs or lewdness going on at Solar, it would have been stopped. Dennis Fleming worked part time as a bartender at Solar between August 1996 and February 1997, usually on Friday and Saturday nights, and on a couple of evenings during the week. He, too, took Responsible Vendor training. As he recalls it, the noise level in Solar when it is crowded is very high, which makes it impossible to overhear patrons’ conversations. He knows Tiffany Middlesexx, who usually sat not far from where he worked the bar. During all the time Fleming worked at Solar, he claims, he never saw Middlesexx sell drugs to anyone inside or near the club. Though he knows Tony from that individual’s brief employment at the club and his subsequent patronage, he doesn’t know if Tony deals drugs The same is true for Tim. Fleming claims not to know Tempo. His periodic conversations with management reinforced the explicit no-drug policy which is expressed to the public by the signs posted about the building. Though he admits to having danced at the club, removed his shirt, and unbuttoned his pants, he denies having ever removed his pants or lowered or removed his underpants. Steven Stamberger was employed at night as a security officer at Solar from July 1996 to its closing. His post was at the entrance door where he checked identification for age and searched back packs of patrons to look for contraband. According to Mr. Stamberger, while doing this he never discovered any drugs being carried by any patrons. Mr. Stamberger also contends there were signs posted at the front entrance which indicated that drugs were not allowed on the premises. There were also signs in the bathrooms to that effect. From time to time each night he would walk through the club on the way to the bathrooms, and he claims never to have seen any drug activity during any of those walk-throughs. He also admits to knowing Tiffany Middlesexx and Tempo but denied knowing whether either sold drugs. He claims no one discussed it with him, but he knows that drugs are not tolerated on the premises. Mr. Stamberger recalls having seen an act of oral sex being committed in the VIP room one time. When he saw it, he went over to the parties, interrupted the activity, and put them out of the club for the evening. To his knowledge, they were not barred from the club for this. He denies, however, having ever seen any of the dancers disrobe or allow patrons to touch their genitals for tips in the club. In 1996, Mr. Engerer, the owner and sole officer of the corporation which operates Solar, invested $50,000 the company. This money came from his 401(k) plan and his stock investments. At the time, he claims, he had very little experience in nightclub operation, and when he took over, he hired a firm to provide Responsible Vendor training to him and his staff before he opened. Mr. Engerer worked every Friday and Saturday nights and, in addition, occasionally also went in during the week. On the weekends, he would open the club, set up the bar, and work at bar three as a bartender. Bar three is where Tiffany Middlesexx generally sat. It has two cash registers -- one at the “L,” and one at the far end. He worked at the far end. Engerer knew Tiffany Middlesexx from his/her performances at other clubs, but asserts he had no knowledge of that individual’s dealing in narcotics, either before or after he bought the club. He claims he never saw any drug deals take place in the club. Engerer claims not to have known Tempo or anything about him/her before or after he bought the club, especially about drug activity. Mr. Engerer admits to knowing Tony, who was recommended to work at Solar because of his prior experience at other clubs. However, Tony was injured the first night on the job and never actually worked there. Engerer claims he had no idea Tony dealt drugs, nor did he ever see Tony deal at Solar. Club policy, according to Mr. Engerer, which he claims he expressed to all employees, is that there is a zero tolerance for drugs, and patrons and employees are to be evicted or fired for possession of unlawful drugs on the club premises. With the large crowds they get on the weekends, he claims it was very hard to hear, especially for the bartenders who worked at least three feet from the patrons. Mr. Engerer claims that signs given to him by the Responsible Vendor trainers were posted throughout the club: at the front door, at the top of the stairs to the second floor, downstairs in the bar, and in each restroom. He had several security people on the floor on the weekends to ensure there was no drug activity in either the bar areas or the restrooms. According to Mr. Engerer, he had no prior indication from the Division or other police agencies that they had any suspicion of ongoing drug activity, nor had he heard of any prior complaints about his establishment. Club policy also prohibited lewd activities, and Engerer claims he had no knowledge of such conduct going on there. He did not ignore it nor would he condone it, he claims. Mr. Engerer also claims he was never told by anyone that Tiffany Middlesexx, Tempo, or anyone else, for that matter, was selling drugs in Solar. The first he knew of any of it, he asserts, was when the Emergency Order of Suspension was served. Had he known Tim was selling elsewhere, Tim would have immediately been fired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking Respondent’s 4-COP alcoholic beverage license number 39-01036, for the premises located at 911-913 Franklin Street in Tampa, and imposing an administrative fine of $5,000. DONE AND ENTERED this 13th day of August, 1997, in Tallahassee, Leon County, Florida. _ ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1997. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Joseph L. Diaz, Esquire 2522 West Kennedy Boulevard Tampa, Florida 33609 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Linda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether or not on or about October 15, 1976, the Respondent, its agent, or employee did knowingly promote, permit a lewd, obscene or indecent show contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Mary Ann Palek, did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Caroline Ann Ruegg did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Theresa Ann Caldwell did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Veleta Rose Shorter did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Nancy Lee Henry did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Joyce Gail Waechter did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011, F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Arbrenda D. Thomas did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011, F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Mary Hildegrade Szczebak did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee, or servant Gladys Amol did participate/perform in lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Ann M. Hall did participate/perform in lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee, or servant Emma Lou Weagraff did participate/perform in lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee, or servant Peggy Janet Scroggins did participate/perform in lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S.
Findings Of Fact At all times material to the proceedings Paul Vogelbacher was the holder of license no. 58-695, held with the State of Florida, Division of Beverage. This license was held to do business as the Gaslite, located at 2201 S. Orange Blossom Trail, Orlando, Florida. On one occasion in late September, 1976, dancers within the licensed premises were observed sitting astride male customers' laps with the customers' legs together and the dancers' legs spread apart. While seated in this posture the dancers were making bumping and grinding motions on the customers' laps, while the customers fondled the breasts of the dancers. One customer handed a beer bottle to one of the dancers who rubbed the bottle on her pubic area. The licensee, Paul Vogelbacher, entered the premises around 10:30 P.M. on that evening, and was present while the aforementioned activity by the dancers was taking place. Vogelbacher also looked around the area where the dancing was taking place. Vogelbacher then left the premises, after staying 15 or 20 minutes. The customers, dancers, and Vogelbacher had been observed in this incident by Deputy John C. Swanson, Orange County Sheriff's Office. Deputy Swanson and Deputy Wood of the same law enforcement agency, returned to the licensed premises on Saturday afternoon, about a week after the first occasion. On this visit, dancers were observed seated on the male patrons' laps as before, and these girls were allowing the customers to fondle their breasts. The licensee Paul Vogelbacher was not in attendance at that time. Deputy Swanson, other members of the Orange County Sheriff's Office and members of the State of Florida, Division of Beverage returned to the licensed premises on October 15, 1976. Officer Swanson entered the licensed premises between 9:15 and 9:30 P.M. and was in the premises from that time until 11:00 P.M., at which time a raid of the licensed premises was made and a number of arrests affected. Dancers in the licensed premises to wit: Mary Ann Palek, Caroline Ann Ruegg, Theresa Ann Caldwell, Veleta Rose Shorter, Nancy Lee Henry, Joyce Gail Waechter, Arbrenda D. Thomas, Mary Hildegrade Szczebak, Gladys Amol, Ann M. Hall, Emma Lou Weagraff, and Peggy Janet Schoggins were seen seated on individual male customer's laps rubbing the area of their crotch against the crotch of the customers. In addition, Theresa Ann Caldwell, while dancing on the stage allowed one male patron to pull down her g-string and put his nose up her rectum. The dancer Nancy Lee Henry spoke to officers Swanson and Wood and told them, "the dancing is against the law, but a gentleman is at the door to lookout, we're not supposed to sit astride the customers". One patron was also seen fondling the breasts of the dancer, Arbrenda D. Thomas. Mary Hildegrade Szczebak allowed three or four customers to touch and fondle her breasts. Finally, Gladys Amol allowed three or four customers to fondle her breasts. All the activities immediately mentioned occurred on October 15, 1976, the night of the raid and arrests. All these activities were occurring while a bartender was on duty in the licensed premises; however, Paul Vogelbacher was not in attendance. Vogelbacher had never instructed any of the girls to dance in the manner shown on October 15, 1976, and two and possibly more of the dancers indicated that Vogelbacher had told them on at least one occasion not to dance in the aforementioned manner. Prior to the time of the raid on October 15, 1976, Vogelbacher would come to the licensed premises for 1/2 hour to 2-1/2 hours, but not everyday. Since that time Vogelbacher has come to the bar at least once a work day and stayed 30 minutes up to an entire day, which is a 14 hour day in the licensed premises. Two weeks prior to the hearing before the Division of Administrative Hearings, Swanson returned to the bar and observed the same form of activity by the dancers in the licensed premises, meaning bumps and grinds while seated on the laps of the male patrons.
Recommendation Based upon the violations as established in this cause, it is recommended that the license no. 58-694, held by Paul Vogelbacher with the State of Florida, Division of Beverage, be suspended for a period of 30 days. DONE and ENTERED this 8th day of April, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles T. Collett, Esquire Russell Crawford, Esquire Department of Business Regulation 127 North Magnolia Avenue 725 Bronough Street Orlando, Florida 32801 Tallahassee, Florida 32304 J. Cheney Mason, Esquire 127 North Magnolia Avenue Orlando, Florida 32801
The Issue Should Respondent's alcoholic beverage license, number 61-00005, 2-COP be revoked, suspended or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: DABT is the division within the Department of Business and Professional Regulation charged with the responsibility of administering and enforcing the Beverage Law of the State of Florida. At all times material to this proceeding, Respondent held a series 2- COP alcoholic beverage license, number 61-00005, authorizing the Respondent to sell only beer and wine on the premises of East Side Tavern (Tavern), located on Cummer Road, 1 mile east of Highway 301, Lacoochee, Pasco County, Florida. Around 12:30 a.m. on May 16, 1994, Special Agents Ashley Murray and Keith B. Hamilton went to the Tavern in an undercover capacity. This undercover activity was initiated due to a request of the Pasco County Sheriff's Office (PCSO) concerning allegations of drugs sales on the premises of the Tavern. Agent Murray has been a sworn law enforcement officer for five and one- half years. Agent Murray completed a two-week basic Drug Enforcement Administration (DEA) drug school regarding the identification, sale and the manner of use of drugs. Agent Murray also completed a three-day undercover DEA school. During her five and one-half years as a sworn law enforcement officer, Agent Murray has been involved in at least 100 occasions where drugs were being sold or used. Agent Hamilton has been a law enforcement officer since 1981. During Agent Hamilton's tenure as a law enforcement officer he has been involved in numerous training classes regarding the identification, sale and manner of use of drugs, including courses taught by DEA. Agent Hamilton has been trained to recognize the scent of burning marijuana. Agent Hamilton has been in at least 70 different establishments where drugs, including marijuana, were being sold and used. As the agents approached the Tavern, they noticed a large number of people (100-150) standing in front of the Tavern and in a vacant lot across the road from the Tavern. Additionally, cars were parked along Cummer Road in front of the Tavern. The agents also testified that a "lot" of the people standing outside appeared to be "young". Upon entering the Tavern, the agents noticed that no one was checking identification at the door. The Tavern consists of two rooms divided by wall with a door between the two rooms. The bar is located in one room. The second room is a disco/dance area. Based on the description of the inside of the Tavern, a person behind the bar would not have clear view of all of the disco/dance area. On May 16, 1994, the Tavern was crowded with customers. Agent Murray saw what appeared to her to be a "lot of really young kids" in the crowd. Upon entering the Tavern on May 16, 1994, Agent Hamilton detected a scent in the air that resembled, based on his training and experience, the odor of burning marijuana. Agent Hamilton did not actually see anyone smoking marijuana inside the Tavern. Agent Murray also noticed, both on the inside of the Tavern in the dance floor area and outside the Tavern by the entrance, what appeared to her to be a hand-to-hand exchange between customers of what appeared to be money for something that she could not identify. As Agent Murray left the Tavern she noticed what appeared to her, based on experience and training, to be customers passing and maybe smoking marijuana. However, Agent Murray did not actually see the marijuana or the customers actually smoking marijuana. Agent Murray also noticed a customer with a closed fist going to another customer and placing the closed fist over an open palm and then the release of the closed fist. Based on her training and experience, this appeared to Agent Murray to be an exchange of crack cocaine between the customers. Agent Murray did not see or confirm that any crack cocaine was actually being exchanged. Upon reentering the Tavern, the agents were together at the bar and saw a black female customer place a large bottle of liquid on top of the bar close to where they were sitting. The customer ordered something from the bar and left with the bottle. Agent Murray testified that by observing the label on the bottle she was able to identify the liquid as scotch whiskey. Agent Hamilton testified that he observed the same black female with a bottle of "alcohol, distilled spirits" and further identified the liquid as a "bottle of gin". Neither Agent Murray nor Agent Hamilton testified that the bottle bore the manufacturer's insignia, name or trademark. Both agents were apparently close enough to the customer to be able to observe the label. Neither agent smelled or tasted the contents of the bottle. For reasons of their own, the agents did not seize the bottle. Agent Murray thought she saw the Respondent behind the bar on that day. Agent Hamilton referred to the person behind the bar that day as the clerk but did not identify the Respondent as being the clerk on May 16, 1994. On August 8, 1994, ten DABT agents and 20 deputies from the PCSO conducted a walk-through inspection (inspection) of the Tavern. The agents and deputies were dressed in such attire as to be visibly recognized as law enforcement officers. During the inspection on August 8, 1994, DABT Sergeant Allen Ray observed an individual inside the Tavern in possession of a cup of beer, which individual Sergeant Ray suspected of being under 21 years of age. Sergeant Ray testified that this person identified herself as Tamieka Ranell Shaw and that Shaw advised him she was under 21 years of age. Sergeant Ray then took Shaw outside and placed her in the custody of Agent Hamilton for processing. Agent Hamilton testified that Shaw advised him that she was 16 years of age. At this time, Shaw did not have a driver's license or any other type of identification in her possession that would verify her age or date of birth. Furthermore, Shaw was not identified by a family member or anyone else having personal knowledge of Shaw's age or date of birth. Neither Shaw nor anyone else having personal knowledge of Shaw's age testified at the hearing. Furthermore, DABT did not present any documentary evidence of Shaw's age at the hearing. DABT failed to prove that Shaw was under 21 years of age on August 8, 1994. There was no evidence that Respondent or any person working for Respondent had sold, given, served or permitted the beer to be served to Shaw. During the August 8, 1994, inspection, DABT Sergeant John Allen observed three individuals in the Tavern that he suspected of being under 21 years of age that were in possession of what Sergeant Allen considered to be an alcoholic beverage. Sergeant Allen escorted each of these individuals out of the Tavern separately. None of these individuals had a drivers license or any other type of identification to verify their age or date of birth. Sergeant Allen testified that each of the individuals identified themselves and admitted to being under the age of 21 years. However, one of the individuals managed to leave the premises before any other identification could be made. Sergeant Allen testified that Ronald Adair, one of the alleged underage customers referred to in Finding of Fact 15 above, was identified by his mother as being under 21 years of age in a telephone conversation with Sergeant Allen on August 8, 1994. However, neither Adair, his mother nor anyone else having personal knowledge of Adair's age was present at the hearing to testify as to Adair's age. Furthermore, DABT did not present any type of documentary evidence of Adair's age at the hearing. DABT failed to prove that Adair was under 21 years of age on August 8, 1994. The person identifying himself as Marlon Inmon, another of the alleged underage customers referred to Finding of Fact 15 above, was alleged to have been in possession of an alcoholic beverage inside the Tavern on August 8, 1994. Sergeant Allen testified that he talked to a relative of Inmon's over the telephone and that this relative identified Inmon and advised Sgt. Allen that Inmon was under 21 years of age. However, this person did not talk to or see the person claiming to be Inmon. Neither Inmon nor the person identifying Inmon over the telephone or anyone else with personal knowledge of Inmon's age testified at the hearing. Furthermore, DABT did not present any documentary evidence of Inmon's age at the hearing. DABT failed to prove that Inmon was under 21 years of age on August 8, 1994. The third alleged underage person referred to in Finding of Fact 15 above in possession of an alcoholic beverage on August 8, 1994, was never identified by anyone before he left the premises. Neither this person nor anyone else having personal knowledge of this person's age testified at the hearing as to this person's age. Furthermore, DABT did not present any documentary evidence as to this person's age. DABT has failed to prove that this person was under 21 years of age on August 8, 1994. During the walk-through inspection on August 8, 1994, DABT Special Agent Michael Freese seized a 1.75 liter of Seagrams gin, alcoholic beverage. The gin was in plain view on a table in the dance floor area. In attempting to seize the gin, Agent Freese had a confrontation with a customer who claimed the gin belonged to him. There was no evidence that the gin had been purchased on the premises. This gin is not the type of alcoholic beverage allowed to be possessed by the licensee or anyone else on the licensed premises of a licensee holding only a 2-COP alcoholic beverage license such as Respondent. The Respondent was present at the Tavern on August 8, 1994, and either directly observed, or was in such a position at the bar to have easily detected the presence of the unauthorized alcoholic beverage on the table. Also during the walk-through inspection on August 8, 1994, Agent Freese observed a small plastic bag containing a substance that resembled marijuana on the floor behind one of the speakers around the "DJ" booth. Agent Freese seized the bag and identified it as marijuana by sight and smell. A field test conducted by Agent Freese indicated that the substance was marijuana. However, Agent Freese testified that the field test may not be 100 percent accurate. No laboratory analysis was made of the substance suspected of being marijuana. DABT failed to prove that the substance was in fact marijuana. Likewise, DABT has failed to prove that Stewart was aware of alleged marijuana being present on the premises. During the walk-through inspection on August 8, 1994, Lieutenant Bruce Schmelter, PCSO, seized a loaded 22-caliber revolver that was protruding from beneath one of the speakers near the "DJ" booth. The revolver was turned over to DABT. However, DABT failed to prove that Stewart was aware of the revolver being present on the premises. After the walk-through inspection on August 8, 1994, Sergeant Allen gave Respondent official notice of the problems encountered during the inspection. On September 18, 1994, a second walk-through inspection (second inspection) was conducted at the Tavern by ten DABT agents and 25 PCSO deputies. The DABT agents and the deputies from the PCSO were dressed in such attire as to be visibly recognized as law enforcement officers. During the second inspection, agents Murray and Aikens advised Respondent that they intended to go behind the bar to secure that area. After advising Stewart of their intended action, there was a confrontation between Stewart and the agents wherein Stewart's daughter became involved. The agents became concerned because of the crowd and notified Sergeant Ray of the problem. Sergeant Ray advised Stewart of why they were there and that DABT agents had the authority to secure the area behind the bar. After this explanation, Respondent allowed Sergeant Ray and another DABT agent behind the bar without further incident. After the incident at the bar during the second inspection, Agents Murray and Aikens seized a bottle of Seagrams Extra Dry Gin, an alcoholic beverage, which they found on the floor against the wall in the area of the bar inside the Tavern. This gin is not the type of alcoholic beverage allowed to be possessed by the licensee or anyone else on or at the licensed premises of a licensee holding a 2-COP alcoholic beverage license such as Respondent. The Respondent was present in the Tavern on September 18, 1994, and either directly observed, or was in such a position as to have easily detected the presence of the unauthorized alcoholic beverage. During the second inspection, Agent Hamilton observed an individual in possession of a bottle of beer which individual he suspected of being under 21 years of age. Agent Hamilton testified that the individual was identified as Corey Anthony Owens, 20 years of age. Neither Owens nor anyone else having personal knowledge of Owens' age were present to testify at the hearing. Furthermore, DABT did not present any documentary evidence as to Owens' age. Agent Hamilton testified that Owens advised him that he had purchased the beer in the Tavern from a black male behind the bar. DABT presented no other evidence that the beer had been purchased in the Tavern. Although DABT has proven that Owens did have beer in his possession while in the Tavern on September 18, 1994, DABT failed to prove that Owens purchased or was served or given the beer in his possession on September 18, 1994, by Stewart or his servant, agent or employee. Furthermore, DABT failed to prove that Owens was under 21 years of age on September 18, 1994. On December 7, 1994, Captain Bruce Ashley met with Stewart at Stewart's request to discuss the Administrative Action that had been served on Stewart. At Stewart's request, Captain Ashley marked an X by the first box on the Request For Hearing which states as follows: "I dispute issues of fact. (Please list which of the charges and counts in the Administrative Action you dispute and why)." Also at Stewart's request, Captain Ashley wrote the following: "There are facts and issues that are not true that need to be discussed. I have documents and facts to bring out about this matter." (Emphasis supplied) Below this statement Captain Ashley wrote "Written On Behalf Of Licensee By" and signed his name. Below the above underlined statement there was an X with Isaiah Stewart's signature. On December 8, 1994, Captain Ashley wrote a memorandum setting forth what Captain Ashley considered to be the conversation between he and Stewart on December 7, 1994. However, because of the circumstances under which this conversation with Respondent occurred and the conflict between the statement signed by Respondent and Captain Ashley's memorandum, the memorandum is somewhat suspect and a cause for concern, and thereby lacks credibility. DABT's exhibit 4 consist of computer records from the PCSO listing the calls that the PCSO responded to around the Tavern from May 12, 1993 through June 29, 1994. Using these computer records DABT summarized the type of calls and the total number of each type of call received between February, 1994 and June 29, 1994. This summary shows a total of 69 calls of various types responded to by the PCSO during the period covered by the summary. Of the 69 calls listed in the summary, 22 were calls to backup units which apparently were backup for some of the other 47 calls. Ten calls were to assist a sick person. The balance of the calls were as follows: 2-affray/incite or encourage riot; 1- special patrol request; 1-juvenile problem; 3-miscellaneous incident; 2-field interrogation report; 4-shooting in area; 1-battery (simple); 4- disturbance(noise); 1-accident traffic; 1-illegal parking; 1-suspicious person; 3-narcotics violation; 1-throwing a deadly missile; 1-obstructing police without violence; 1-warrant arrest; 1-robbery, strong arm; 1-simple assault; 2-traffic warning; 1-aggravated assault; 1-weapons; 1-shooting into occupied dwelling; 1- battery on officer and 2-special detail. It is clear from the PCSO computer printout that the whole area around Cummer Road, not just the area around the Tavern, kept the PCSO busy responding to calls during the period in question. DABT presented no evidence as to the legitimacy of the call or if the call involved the activity of the Tavern's customers on the premises of the Tavern or the activity of someone else in the vicinity of the Tavern or what action was required upon the PCSO responding to the call. DABT failed to prove that Respondent kept or maintained a premises which was resorted to by persons who use or sell illegal drugs. DABT failed to prove that between the dates of February 1994, and September 1994, the Respondent maintained a public nuisance at his licensed premises.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law and having reviewed the penalty guidelines set forth in Rule 61A-2.022, Florida Administrative Code, it is recommended that a final order be entered finding Respondent guilty of the allegations contained in Counts 5 and 8 of the Administrative Action and for this violation that DABT assess an administrative fine in the amount of $1,000 against Respondent. It is further recommended that DABT dismiss Counts 1, 2, 3, 4, 6, 7, 9, 10 and 11 of the Administrative Action. RECOMMENDED this day 27th of September, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1482 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner in this case. Petitioner's Proposed Findings of Fact. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1-3(2); 4-5(3); 6(6); 7(7); 8(8); 9(9); 10(5); 11(10); 12(4,10-11); 13(11); 14(12); 15(13); 17-18(15); 21-22(19); 24-25(21); 26(22); 27(23); 28-29(24); 30(25); 32(27); and 34(28). Proposed finding of fact 16 is adopted in Finding of Fact 14, except that portion regarding the age of Shaw, which is rejected. Proposed finding of fact 19 is adopted in Finding of Fact 16, except that portion regarding the age of Adair, which is rejected. Proposed finding of fact 20 is adopted in Finding of Fact 17, except that portion regarding the age of Inmon, which is rejected. Proposed finding of Fact 23 is adopted in Finding of Fact 19, except that the field test did not absolutely prove that the substance was in fact marijuana. Proposed finding of fact 31 is adopted in Finding of Fact 26, except that portion regarding the age of Owens and that Owens purchased the beer in the Tavern, which is rejected. Proposed finding of fact 33 is rejected as not being supported by competent, substantial evidence in the record. The Respondent elected not file any proposed findings of fact. COPIES FURNISHED: John J. Harris, Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda L. Goodgame, Esquire General Counsel Department of Business Professional Regulations Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard A. Grumberg, Esquire Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Isaiah Stewart, Pro se Post Office Box 429 Lacoochie Florida 33537
The Issue Whether Respondent violated various provisions of Beverage Law and, if so, what disciplinary action against the licensee is appropriate.
Findings Of Fact Robert A. and Geraldine Geddes, d/b/a Crystal Bar, hold beverage license number 61-00040, Series 4-COP and have held this license for 36 years. Although the licensees still actively supervise the overall operation of the bar and are at the bar on a daily basis, their visits are usually during daylight hours and Robert Geddes usually departs the bar around 7 P.M.. In 1980, active supervision of the bar was turned over to Kurt Geddes, the son of the licensees. Kurt Geddes is the manager of the bar, does the hiring and firing, is on the premises when a shift of bartenders occurs, but normally leaves the bar around 8 or 9 P.M.. Sometimes he remains on the premises until closing time (2 a.m.), but that is rare. In the absence of Kurt Geddes, the barmaid is in charge. On Saturday night and other "big nights" two barmaids are on duty; and on other nights only one barmaid is on duty. Kurt Geddes spends approximately 60 hours per week at the bar. Crystal Bar is considered by many patrons to be a family bar, frequented by both younger patrons and middle-aged patrons. The latter frequently come in around 6 p.m. and usually leave by 9 p.m., but occasionally remain until 11 p.m. During the period from early September 1990 through mid-October 1990, Petitioner conducted investigations in several bars in Pasco County, including the Crystal Bar. Undercover investigators Randy West, Anthony Drinkwater, Betty Warner and Jeanine Williams visited the Crystal Bar on divers occasions during this period, and on several occasions purchased cocaine and/or marijuana. Anthony Drinkwater was in the Crystal Bar several times in September and October. During these times, he witnessed no drug transactions on the premises or outside the premises. Randy West was present on the licensed premises September 9, 10, 11 and seven other times during the investigation. Normally he was accompanied by a confidential informant, and agent Drinkwater. On September 11, the confidential informant, who had engaged a patron of the bar in conversation, advised West that the patron had marijuana to sell. West approached the patron, Michael Clayburger, and exited the bar with Clayburger from whom he purchased marijuana in the parking lot outside the bar. During the times West was in the licensed premises, he saw no employee involved in any drug transaction, nor could he purchase marijuana papers from any employee or obtain from the employee a source from whom such rolling paper could be acquired. Jeanine Williams, the youngest of the Department's investigators, was involved in the most purchases. She first entered the bar on September 8, 1990, with Betty Warner, who has been an investigator with Petitioner for approximately ten years. On September 10, 1990, Williams witnessed the purchase of marijuana by agent West outside the bar. On September 11, 1990, Williams engaged in conversation with a patron "Dennis" and inquired about the purchase of crack. After making several phone calls, Dennis told Williams he could get crack for her, and she gave him $20. Whereupon, he left the bar and did not return. Another female patron who had observed the transaction between Dennis and Williams returned to the bar and told Williams she had been ripped off. On September 13, 1990, while in the bar, Williams engaged in conversation with Donnie, a steady patron of the bar who also, on occasion, brought up ice and beer to stock the coolers for the barmaids. During this time, they discussed a 50 pound marijuana deal Donnie was contemplating, and Williams overhead several patrons ask Donnie for a joint. On September 14, 1990, while in the bar, Williams was told by Donnie that he had given someone $500 for one-half ounce of cocaine and was waiting for it to be delivered to him. Williams and Donnie were sitting at the bar, and when Williams told Donnie she would like to purchase one-half gram, Donnie told her to keep her voice down because the bar manager, Kurt Geddes, who was in the vicinity, might overhear her. Later she gave Donnie $40 for cocaine which was delivered in the bar, but out of the presence of any employee of the bar. On September 15, 1990, Williams made purchases of cocaine through Donnie from a patron named Joe, and also from Tom, another regular patron of the bar who also helped with stocking the beer cooler. On September 20, 1990, Williams while in the bar, discussed with Tom a $30,000 pot deal Tom was considering with Donnie, but backed off because he was afraid it was a rip off. On September 21, 1990, Williams, was again in the bar pursuing the investigation when she was approached by Tom and told that he was going out for cocaine because so many wanted it. She later observed agent Warren making a purchase from Tom. On September 23, 1990, Williams again purchased cocaine from Tom in the bar. On September 26, 1990, she purchased cocaine from another patron identified as Joe Cochrane. On September 28, 1990, Williams purchased one gram of cocaine from Tom for $80 which was delivered in the bar. On October 6, 1990, Williams approached Donnie to buy cocaine, and he took her outside to the parking lot where the transaction took place. On October 7, 1990, she witnessed a cocaine transaction between Tom and agent Warner. On October 9, 1990, Williams purchased cocaine from Tom on the licensed premises. On October 17, 1990, she purchased cocaine from a patron named Orville inside the crowded noisy bar. Finally, on October 18, 1990, she purchased one-half gram of cocaine from Donnie just outside the front door of the licensed premises. Agent Warner was in the Crystal Bar each time agent Williams made a purchase and positioned herself to observe those purchases. On September 11, 1990, Warner went outside the bar with a patron and simulated snorting coke in his car. On September 12, 1990, she observed Donnie restock the bar, sweep up a broken glass, and bring in ice for the bar. On September 26, 1990, she purchased marijuana from Joe Cochrane, which was delivered outside the bar. On September 27, 1990, Warner purchased cocaine from Joe Cochrane, again delivered outside the bar. On several occasions when beverage agents purchased controlled substances in the bar, the purchase was openly displayed to other patrons of the bar and could have been seen by the barmaid. However, no one ever told these agents to remove these drugs from the premises. In openly displaying those controlled substances, the agent's were "over acting" to publicize as much as possible that they had purchased and were displaying controlled substances. Of those purchases made inside the bar, six were from Tom, two were from Donnie and one each from Orville and Joe Cochrane. No witness observed any employee involved in any drug transaction. The license holders, Robert and Geraldine Geddes visit the bar on a daily basis, she to maintain the books and records, and he to socialize a few hours before leaving around 7 p.m. The daily operation of the bar was turned over to their son, Kurt Geddes, in 1980, although they are consulted and approve all major decisions. As manager, Kurt Geddes instructs employees in their duties. He has established a well known policy that any employee involved in any drug transaction is immediately fired, that if any drug transactions on the premises are observed, the patrons are to be directed to leave immediately, and the police are called if they do not leave. These policies are not written out and published in an "employee's manual" but are discussed with all new employees, and intermittent meetings are held with employees to reiterate these policies. Kurt Geddes testified that he was aware of Donnie's previous conviction for dealing drugs, but that Donnie had assured him that he (Donnie) had learned his lesson and was totally removed from drugs. He never saw any evidence of drugs being used or sold in the bar, nor had anyone advised him that drug dealings were being negotiated on the licensed premises. He once saw a patron with marijuana in the bar and told him to leave. The Geddes are members of the Independent Beverage Dealers Association and have been for many years. They have attended seminars offered by this Association. Kurt Geddes was unaware of the Tampa DABT's Awareness Program for licensees, but is aware of the Responsible Vendor's Program. Two barmaids employed by Respondent testified that they were aware of the policy regarding drugs in the bar and that they never saw any employee or patron use or sell drugs in the bar. Four regular customers of the Crystal Bar who consider themselves friends of the licensee testified that they visit the bar frequently, but usually leave at an early hour, and they have never seen any drugs sold or used in the bar. They consider the bar to be a family bar where friends congregate. The patrons consist of both an older group and a younger group, and there is not a lot of mixing between the two groups. During this investigation, several bars were targets of the investigation, and emergency suspension orders were, at the time of this hearing, issued to two of these licensees, viz., the Crystal Bar and Quaker Bar. Both of these cases were referred to the Division of Administrative Hearings and assigned to this Hearing Officer. Before the date scheduled for hearing, the case against Quaker Bar was settled; and the Quaker Bar was allowed to reopen. The charges preferred against the Quaker Bar were similar to the charges here involved, viz., sale of controlled substances on the licensed premises. However, the allegations against the Quaker Bar included the sale of controlled substance on the premises by an employee of the Quaker Bar as well as by patrons of the bar. The only apparent difference in the licensees is that the Quaker Bar had entered into a responsible vendor's certification program which became effective January 1, 1990 (Section 561.705, Florida Statutes). This statute provides that a licensee seeking to qualify as a responsible vendor shall provide the Division with evidence of compliance with the provisions of this section. Generally, this requires a vendor to provide an approved course of instruction to its employees in alcohol and controlled substance effects, methods of dealing with customers and recognizing underage customers, requiring each employee to complete certain courses relating to alcoholic beverage operations and to complete applications requiring background information on the applicant for employment, and the posting of signs on the premises advising customers of the vendor's policies regarding drugs on the premises.
Recommendation Based upon the foregoing findings and conclusions, it is recommended that Robert A. and Geraldine Geddes, d/b/a Crystal Bar, be assessed an administrative fine of $10,000 plus investigative costs of the investigation: $1000 to Pasco County Sheriff's Office and $3800 to the Division of Alcoholic Beverages and Tobacco, and the license suspended for a period of three months. It is further recommended that the suspension be stayed for a probationary period of one year under such terms and conditions as the Division deems appropriate, and upon satisfactory completion of the probationary period, the license be restored to its original status and condition. It is further recommended that this penalty not exceed the penalty administered to the Quaker Bar. ENTERED this 26 day of November, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26 day of November, 1990. APPENDIX Treatment Accorded Petitioner's proposed findings: 1-2. Accepted. 3. First part accepted, except marijuana purchased for $20, vice $23. Remainder of finding rejected as recitation of testimony of witness rather than finding of fact. Other parts rejected as uncorroborated hearsay. Last sentence incomplete. 5-17. Accepted. 18. Accepted, except for penultimate sentence regarding transaction observed by barmaid. The witness testified only to what the barmaid could have seen. 19-22. Accepted. 23. Generally accepted, however, the testimony of Investigator Maggio was that the marijuana fell out of Investigator Warner's bag, and the barmaid smiled when she saw it. 24-26. Accepted. 27-28. Rejected as recitation of testimony of witnesses rather than findings of fact. Treatment accorded Respondent's proposed findings: 1-13. Accepted. Rejected as unsupported by the evidence. None of the patrons selling controlled substances testified to where the patron told the investigator to speak more softly so as not to be overheard by Kurt Geddes. Second sentence rejected. Agent Williams testified that she observed another patron purchase cocaine. 16-17. Rejected. Petitioner's investigators testified they overreacted to make their purchase of drugs in the bar more obvious. 18-21. Accepted. 22. Accepted only insofar as no employee who testified in these proceedings saw any drug transaction on the licensed premises. 23-24. Accepted. 25. Accepted insofar as no patron of the bar who testified in these proceedings observed drug use or saw drug transactions on the licensed premises. 26-39. Accepted. First sentence rejected. Kurt Geddes held sporadic meetings with employees to discuss compliance with state beverage laws. First sentence accepted insofar as only each employee who testified in the proceedings is included. 42-44. Accepted. Rejected as a fact; accepted as a conclusion. Accepted. COPIES FURNISHED: Robin L. Suarez, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 Peter P. Murnaghan, Esquire Jeanne Maguire, Esquire Post Office Box 0959 Tampa, FL 33601-0959 Leonard Ivey Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 Joseph Sole Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007
The Issue Whether or not on or about August 9, 1975, Martha L. Washington, a licensed vendor did have in her place of business, one (1) four-fifths brokenseal bottle of Barcardi Rum, Light, not authorized by law to be sold under her license, contrary to Section 562.02, Florida Statutes.
Recommendation It is recommended that a civil penalty in the amount of $200.00 be imposed against the license of Martha L. Washington for the violation established through the allegation of the subject Administrative Complaint. DONE and ENTERED this 17th day of February, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation 725 Bronough Street Tallahassee, Florida 32304 Martha L. Washington 1085 Palmetto Street Bartow, Florida
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.
