The Issue The primary issues for determination are whether Brother J. Inc., d/b/a A.J.’s Sports (Respondent) violated Section 561.29(1)(a), Florida Statutes; and secondarily, if Respondent committed such a violation, what penalty should be imposed?
Findings Of Fact Petitioner is the agency vested with general regulatory authority over the alcoholic beverage industry within the state, including the administration of the laws and rules relating to the sale of alcoholic beverages. Respondent is subject to the regulatory jurisdiction of Petitioner, having been issued license number 47-02607, Series 4-COP by Petitioner. That license allows Respondent to make sales for consumption on premises of liquor, wine, and beer at his establishment located in Tallahassee, Florida. Events at issue in this proceeding revolve around a fraternity/sorority party held at Respondent’s establishment on the evening of March 30/April 1, 2005. Members of the Phi Kappa Psi fraternity and the Delta Nu Zeta sorority decided that they would host a “construction” theme party. To facilitate the party, the social chairman of Phi Kappa Psi contacted Respondent to make arrangements. Respondent’s establishment has several large areas on its ground floor and a single, 1,800 square foot room on the second floor. Respondent agreed to reserve its upstairs room for the Phi Kappa Psi/Delta Nu Zeta party, to waive its cover charge for party patrons, and to make “dollar wells, dollar beers” (i.e. discounted prices on certain alcoholic beverages) available to party participants for a fee of $300.00. On the night in question, most of the participants met at the Phi Kappa Psi house before going out for the evening. They gathered around 10:00 p.m. and socialized. Some people were getting their “construction” costumes together; others were “pre- partying” –-drinking before going out to minimize the size of the bar bill when they go out later. The majority of the people at the frat house at that time were drinking. At some point around 10:30 or 11:00 p.m., the party moved from the Phi Kappa Psi house to Respondent’s establishment, with party members leaving in groups of three or four to drive from the fraternity house to Respondent’s establishment. It was estimated that 15 or so sorority members and 15 to 30 fraternity brothers attended the party, and that somewhere between a third and a-half of those people were not of legal drinking age. When they arrived at Respondent’s establishment, the sorority and fraternity party makers used a side entrance set up for them by Respondent for use in getting to the party. A doorman was posted at the side entrance that checked the age of each of the patrons. He would place a “Tybex®” wristband on those persons who were over the age of 21 and would mark the hand of those under 21 with an indelible marker. Once inside, party members would go upstairs, where there was a bar with a bartender, a disk jockey, and a dance floor. The party continued on until around 2:00 a.m. on the morning of April 1, 2005, at which time the bar closed and the patrons left. During the course of the evening, 244 alcoholic beverages were served at the upstairs bar at Respondent’s facility. No evidence was presented that established with any degree of accuracy how many fraternity and sorority members actually were at the party and how many were of legal drinking age. The evidence of party attendance provided at hearing varied widely and was in each instance an estimate or a guess. Numerous persons who were not members of Phi Kappa Psi or Delta Nu Zeta were in attendance. There is no accurate estimate of how many legal drinkers were at the party or how many drinks each legal patron may have had. The Underage Drinkers Shane Donnor was observed drinking at the frat house that night. He did not, however, appear to be intoxicated when he left the frat house. He had a wristband indicating that he was over 21, which allowed him to drink at Respondent’s establishment, even though he was not of legal age. It is unknown how he obtained his wristband. Donnor was observed to have a glass in his hand while at Respondent’s establishment, but no one could confirm that he was drinking alcohol. While at Respondent’s establishment, various witnesses described him as appearing under the effects of alcohol and thought he appeared quite intoxicated. By 2:30 a.m. on April 1, Donnor had a blood alcohol level of 0.27. This corresponds to at least 10 drinks and probably more. It is an extremely high level of intoxication, which could result in a coma or even alcohol toxicity in some persons. He was quite drunk and had been so for some time. Stephanie Reed was carded upon entering Respondent’s establishment, as was her boyfriend and all the others in her party. She had one or two drinks, but she didn’t buy them herself. One of the fraternity brothers purchased her drinks for her. Reed testified at one point that she did not receive a wristband when she entered the establishment (signifying legal drinking age); later, she testified that she did due to the intervention of some unknown man who told the doorman to give her a bracelet. Reed’s testimony on this point is inconsistent and cannot be credited. Christopher Lowe was carded as he entered Respondent’s establishment. He received marks on the back of his hand indicating that he was underage. Although he was marked as being underage, Lowe was able to purchase two drinks from the bartender. He ordered the drinks; did nothing to conceal the underage marks on his hand; was served; and left money on the bar. Tania Vasquez was carded upon entering Respondent’s establishment and was marked as being underage. She did not buy any drinks while at the party, but was given an alcoholic beverage by a friend that she consumed while on the premises. Elizabeth McKean, and everyone who entered with her, were carded when they arrived at the party. McKean was marked as being underage. She did not buy any drinks for herself, but was given a shot of tequila by someone else. She drank the shot quickly to avoid detection by Respondent’s staff. David Moser had a roommate who manufactured fake i.d. cards. When he entered Respondent’s establishment, he was carded and presented a false drivers license that made it appear that he was over the age of 21. He was marked as though he was over the legal drinking age and was able to buy and consume drinks at the bar, which he did. Lee Habern had several sips of a friend’s drink that was “snuck” to him. Prevention Of Underage Drinking It is well recognized that underage persons will seek to obtain alcoholic beverages at bars. This action by underage youths results in a “cat and mouse” game whereby the bar will change its tactics in trying to prevent underage drinking and the underage drinkers will change their methods of trying to obtain drinks. Respondent tries to combat underage drinking by creating a culture of compliance. This starts with the initial hiring of employees by Respondent. Respondent’s policy is that no underage drinking will be tolerated. This policy is stated in the Employee’s Handbook. Every employee is given a copy of the handbook upon becoming employed and is required to sign an acknowledgement that he or she received it. The policy is reiterated in informal training at every staff meeting. Every new employee at Respondent’s establishment is required to go through formal training with regard to liquor laws, the effect of alcohol on the human body, dealing with customers who have had too much to drink, and related topics. These courses are known as “PAR”, “TIPS”, and “Safe Staff” and are offered by the Florida Restaurant Association and Anheiser-Busch. Respondent has also offered training provided by agents of Petitioner. These formal training programs are offered continuously to employees, and at least one of the programs is offered three times each year. The initial formal training is accomplished within 30 days of the employee being hired. Records are maintained by Respondent as to who receives what training, and when it is provided. Respondent has a policy that everyone who is served alcohol is to have his or her age checked. When the bar is not busy, this is accomplished by having the waitress check the patron’s I.D. When the bar is busier, a doorman is posted at the entrance to check the patron’s I.D. If the patron is over age 21, he or she is given a wristband; if under age 21, an indelible mark is placed on the back of the hand. Since Respondent has experienced persons copying their “over 21” designation, it is changed on a nightly basis. Fake identification cards, if detected, are confiscated. On busier nights, Respondent might confiscate 20 to 30 of such fake identifications. On the night in question, the doorman confiscated five altered cards. Respondent also has a floor manager on duty at all times that the bar is open. The floor manager will circulate throughout the establishment to make sure that all of the policies and procedures, including the prevention of underage drinking, are being carried out. On the night in question, the floor manager, Bo Crusoe, is documented to have worked and in the nominal course of events would have checked the upstairs area of the premises several times. On busy nights, Respondent will hire one or more off- duty City of Tallahassee police officers to serve as security at the bar. The officers work in their police uniforms. These officers serve first and foremost as high visibility deterrents to unlawful activity. Their mere presence serves to minimize underage drinking. Respondent regularly has off-duty law enforcement on the premises. Respondent also has a security consultant, Officer John Beemon, who is a Tallahassee Police officer. He evaluates the need for additional security and communicates those needs to the owners. When he becomes aware of a new wrinkle in underage persons obtaining alcohol, he works with Respondent to prevent the practice. He assists the doormen in identifying fraudulent I.D.s. Respondent has always implemented whatever recommendations Beemon makes to them. Generally, the security measures used by Respondent have proven effective. From time to time, Petitioner will try a “sting operation” at Respondent’s establishment by sending a minor into Respondent’s bar to see if they are able to purchase alcohol. On every such “sting operation” Petitioner’s decoy was identified and stopped at the front door and was not allowed to purchase alcoholic beverages. Carrie Bruce is Petitioner’s special agent for the Tallahassee area. She is familiar with most Tallahassee alcoholic establishments and her testimony establishes that Respondent’s establishment is not considered a “problem bar” by Petitioner and is considered to be better than other area bars in preventing underage drinking. To the best of the owner’s knowledge and Beemon’s knowledge, no one has ever knowingly served a drink to a minor at Respondent’s establishment. Further, Respondent has never previously been charged with serving alcohol to minors.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
The Issue Whether or not on or about July 13, 1975, Arthur Hayes, Jr., licensed under the beverage laws, and or his agent, servant or employee did sell or permit to be sold, served or consumed alcoholic beverages, to wit: a quart bottle of Schlitz beer, any time otherwise not provided for by county or municipal ordinance, contrary to Florida Statutes 561.29 Whether or not on or about July 20, 1975, Arthur Hayes, Jr. licensed under the beverage laws and or his agent, servant or employee did sell or permit to be sold, served or consumed, alcoholic beverages, to wit: a quart bottle of Schlitz beer at a time otherwise not provided for by county or municipal ordinance, contrary to Florida Statutes 561.29.
Findings Of Fact In the presentation of its case, the petitioner called beverage agent Eugene Fogel to the stand. On or about July 13, 1975, agent Fogel was working for the Sanford, Florida, Police Department and in addition was acting in an undercover capacity for the Division of Beverage. At around 2:00 p.m. July 13, 1975, then police officer Fogel met with agent Herb Baker of the Division of Beverage in Sanford, Florida, for purposes of investigating alleged illegal alcoholic beverage sales which were being made on Sunday. The witness, Fogel, went to the address of Dinah's West Side Grocery, entered the store and purchased a quart bottle of Schlitz beer from the respondent, Arthur Hayes, Jr., This particular item of evidence became petitioner's exhibit 1 and is currently in the custody vault of the Division of Beverage District Office in Orlando, Florida. Testimony by agent Herb Baker indicated that the meeting as spoken of by agent Fogel had transpired, and he had seen agent Fogel enter the subject premises on July 13, 1975, and come out with a paper bag which contained petitioner's exhibit number 1. This exhibit was turned over to agent Baker. Officer Fogel testified that on Sunday, July 20, 1975, the same sequence of events occurred that had occurred on Sunday, July 13, 1975. He met agent Baker and then went to Dinah's West Side Grocery around 3:30 p.m. and purchased a quart bottle of Schlitz beer, which is petitioner's exhibit number 2. The petitioner's exhibit number 2 is now located in the custody of the District Office, Division of Beverage, Orlando, Florida. Again, agent Baker stated that he observed officer Fogel go into the premises on July 20, 1975, return with a bag and that the bag contained a quart bottle of Schlitz beer. The testimony was given by officer Fogel that July 13, 1975 and July 20, 1975, were Sundays. Other Petitioner's exhibits admitted into evidence were exhibit number 3 which is a notice to show cause with accompanying administrative complaint, exhibit 4 which is a notice of hearing, and exhibit 5 which is a copy of an ordinance in Seminole County, Florida. This ordinance was in effect on July 13, 1975 and July 20, 1975, and prohibited the sale of alcoholic beverages on any Sunday. The respondent took the stand in his own behalf and indicated that he knew Eugene Fogel in July of 1975, and knew that Eugene Fogel was a policemen with the Sanford Police Department. He stated that he therefore would not have sold beer to Officer Fogel on Sunday, because he knew such a sale would be illegal. The witness also stated that the only employees in his store were he and his wife and consequently the only explanation he could think of for the two quarts of beer, was that the policemen had stolen the beer from his freezer. He said this would have been easy since there was no lock on the beer freezer and it was close to the door. After assessing the testimony of the witnesses, together with the examination of the evidence it is determined that the violations as alleged in counts 1 and 2 in the administrative complaint have been proven. This determination is arrived at because it would not appear that there is any motive on the part of the two police officers to promote absolute falsehoods. On the other hand considering the interest of the respondent and the quality of his comments, he has not effectively explained or defended against the charges.
Recommendation For committing the offense as alleged in Count 1 of the Administrative Complaint, it is recommended that the respondent, Arthur Hayes Jr., have his license suspended for a period of 30 days. For committing the offense as alleged in Count 2 of the Administrative Complaint, it is recommended that the respondent, Arthur Hayes, Jr., pay a civil penalty in the amount of $150.00. DONE and ENTERED this 5th 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 The Johns Building Tallahassee, Florida 32304 Arthur Hayes, Jr. 1717 West 18th Street Sanford, Florida ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF BEVERAGE IN RE: DINAH'S WEST SIDE GROCERY 1717 West 18th Street CASE NO. 75-2011 Sanford, Florida DABT CASE NO. 5-75-94-A License No. 69-139 /
Findings Of Fact Respondent Michael G. Mandeville, d/b/a The Sugar Shack (Mandeville), is licensed under the Beverage Law, license number 27-1311, series 2-COP, for the premises known as The Sugar Shack located at 11 East Fairfield Drive, Pensacola, Escambia County, Florida. Mandeville has operated The Sugar Shack at that location under that license from July 1985 through the emergency suspension of the license and closing of the business on January 16, 1986. Previously, Mandeville was President, Secretary and Treasurer and 100 percent stockholder of Someplace Else Pensacola, Inc., a licensee under the Beverage Law. On February 1, 1984, Someplace Else Pensacola, Inc., entered into a Stipulation with Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), settling a Notice To Show Cause containing eight counts of solicitation of drinks and one count of conspiring to deliver a controlled substance. At the time, the licensee, Someplace Else Pensacola, Inc., was doing business as The Sugar Shack at 720 West Government Street, Pensacola, Florida. Earlier the licensee Someplace Else Pensacola, Inc., was doing business as Someplace Else at Highway 29 and Roberts Road in Pensacola, Florida. Mandeville was its Secretary and Treasurer and owned half of the stock issued by the corporate licensee. On July 29, 1982, the licensee Someplace Else Pensacola, Inc., d/b/a Someplace Else, entered into a Stipulation with the Division settling a Notice To Show Cause containing twelve counts of solicitation of drinks and five counts of delivering a controlled substance. In the short time Mandeville's current license was being operated, he was aware of drug problems on the premises. Problems of this sort in approximately September 1985 caused Mandeville to be in contact with the Escambia County Sheriff's Office, Narcotics Division. In order to help himself, Mandeville agreed to cooperate with the Sheriff's Office. Although Mandeville told officers in the Sheriff's Narcotics Division that he personally knew no drug users on the premises, he would have a part-time employed disk jockey named Darrel Able, who might have information, contact the Narcotics Division. Mandeville and his staff also had to fire several employees on suspicion of drugs, including a dancer named Margie. The Sugar Shack's premises consist of one large major room with a separate room for playing pool, separate dressing rooms, and men and ladies restrooms. The licensed, premises contain two stages for topless dancing performances, a booth for the disk jockeys and a large bar. It is not possible to see into the dressing rooms from the main room, from the bar or from the disk jockey booth. It is not possible to see the room containing the pool tables from the main room, the disk jockey booth, or the bar. Within the licensed premises, there are many tables where customers sit. During business hours of The Sugar Shack, there are topless dancers performing to loud music. Because of the loud music, it is difficult to hear normal conversations even among those sitting at one of the various tables in the licensed premises. Mandeville employs several people to assist him in the operation and maintenance of The Sugar Shack. During most of the business day, Mandeville is present at the licensed premises. When Mandeville is not present, his brother Steve is in charge of the licensed premises. When Steve Mandeville is not present, the assistant manager and doorman Russell Sapp is in the licensed premises and supervises them. When Sapp is not present, John Chiarito, an employed disk jockey, manages the licensed premises and supervises them. For most of the day, two or three of these people are present in the licensed premises and serve in a supervisory capacity. Additionally, Mandeville employs a day bartender named Helen Mabie, who functions in a supervisory capacity. Mandeville also employs other personnel including bartenders and waitresses who are in the licensed premises during business hours and are supposed to inform management of any violations of laws and rules they suspect. Mandeville himself is present at the licensed premises for approximately eight hours a day at various times between 1:30 p.m. and 2:00 a.m. Mandeville generally supervises the overall business operations of The Sugar Shack, including the hiring and firing of employees. Since Mandeville opened the licensed premises, he has announced a policy applicable to all employees prohibiting the possession of drugs in the licensed premises and the solicitation of drinks by employees. Generally, all employees, especially dancers, are required to sign statements agreeing to the policies. Rules implementing the policies are posted prominently in several locations within the licensed premises including the dancers' dressing rooms. However, the signs contain statements like: "there's a time & place for everything, please think before making your move"; "they are watching you know the law, they know you"; and "the law has the right to walk in this dressing room at any given second keep yourself & your friends out of trouble." Although the overall message of the signs and policies prohibit drugs and drink solicitation, the above unfortunately phrased parts of the signs might tend to imply a management attitude that those activities are acceptable as long as no employees are caught doing them. Mandeville has made it known to his employees that violation of the prohibition against drugs would result in termination, supposedly without giving anybody a second chance. Mandeville and his management staff have in fact fired several employees for violation of the prohibition against drugs on the licensed premises: Toni for smoking marijuana in the dressing room; Nicki for possession of prescription drugs not in a bottle; Margie for using and selling cocaine; and Nicole for suspicion of selling cocaine. According to Mandeville, even suspicion of violating the drug prohibition will result in termination, and there is not supposed to be a second chance for anyone. However, Margie was rehired after being terminated for violating the drug prohibition. In addition, Mandeville did not fire Margie a second time before his license was suspended and did not fire another dancer named Nicole until the first week of January 1986 although he suspected both of them of selling cocaine as early as December 19, 1985, when an undercover Escambia County Sheriff's Office narcotics deputy posing as a patron told him that Nicole had sold the deputy cocaine. Mandeville also made it known to his employees that patrons were supposed to be asked to leave the premises if they violated drug laws on the premises. If such a patron refused to leave, either they were to be forced to leave or law enforcement was to be notified. However, Mandeville did not ask the undercover deputy to leave on December 19, 1985, although the undercover deputy told Mandeville that he had bought cocaine from Nicole. Similarly, the same undercover deputy was not asked to leave by an employee named Sophia on December 27, 1985, when the deputy told Sophia that he had bought cocaine from Nicole. Mandeville or his managements staff conducts periodic unannounced searches of the dancers' lockers. These searches are conducted in the dancers' presence. Refusal to permit a locker search is grounds for termination, and two employees, one a dancer named Connie, were fired for refusal to allow a locker search. According to Mandeville, his management staff is supposed to periodically review with the employees the rules prohibiting drugs and drink solicitation. However, Mandeville does not follow up on the performance of his management staff and several understand their obligation to be only to go over the rules with the employees when one of the employees violates the rules. Only Dwight Sparks, the Sunday night manager, goes over the rules each night he works. Violation of the rule against drink solicitation, when detected, is supposed to result in termination. But there was no evidence that any employee has been fired for drink solicitation. Enforcement of this policy is not as strict as enforcement of the policy against drugs on the premises. Mandeville does not require his employees to subject themselves to a polygraph lie detector examination. He asks prospective employees for an oral history of employment but does not get it in writing and does not check the validity or quality of the references. Mandeville does not check for arrest records of his employees. On December 3, 1985, Officer Zeka of the Escambia County Sheriff's Department entered the licensed premises in an undercover capacity posing as a patron. Within minutes of entering the premises, Zeka was able to buy five capsules of cocaine from the employed dancer Nicole. Nicole and Zeka were sitting back to back in adjoining booths when the transaction took place. Nicole reached over the waist high back of the booths and placed the capsules on Zeka's table in exchange for $50. Because of the loud music, dark lighting, relatively cluttered table and the topless dancing performances attracting attention elsewhere, the transaction would have been difficult for anyone to detect who was not paying attention and trying to detect a drug transaction even though the transaction was not completely concealed. Zeka quickly counted the capsules and put them in his pocket. On December 4, 1985, Zeka bought from Nicole another three capsules of cocaine in a clear cellophane cigarette package wrapper for $50. The circumstances of the transaction were essentially the same as on December 3. Later on December 4, 1985, Zeka bought from Nicole another five capsules of cocaine for $50. The circumstances of this transaction also were the same as on December 3. As on December 3, Nicole placed the capsules on the table in front of Zeka who counted them and put them in his pocket. On December 5, 1985, Zeka again bought from Nicole five capsules of cocaine. Again, the circumstances were essentially the same as on December 3. As on December 3, Nicole placed the capsules on the table in front of Zeka who counted them and put them in his pocket. On December 26, 1985, Zeka was in the licensed premises and asked employed dancer Margie to sell him some cocaine. At first Margie was unable to because "her man," i.e., her source of drugs, was not around. Later she walked over to and embraced "her man," Darrel Able, who slipped a clear plastic bag containing approximately one-half gram of cocaine into the back of her g-string type panties. Margie returned to the table and put the bag on the table between Zeka and another undercover officer named Lewis. Somehow the bag opened, and some cocaine spilled on the table. Margie suggested they "do a line" from the cocaine spilled on the table and took a straw out of one of the glasses on the table. When Zeka and Lewis affected to warn her not to be so open about it in order to preserve their cover, Margie told them not to worry because it was done all the time. However, it was not proved that Margie was not either joking or intoxicated, and no credence can be given to her statement that cocaine was used at the tables in the licensed premises. As before, the licensed premises were dark and noisy at the time and the attention was directed to the dance stage. Although the transaction was not completely concealed it still would not have been easy to detect. On December 27, 1985, an employed dancer named June openly handed Lewis a marijuana cigarette she said she had been given as a tip and invited Lewis to smoke it outside. Again, although June made no attempt to conceal what she was doing, it would have been difficult to detect exactly what she was doing and that she had a marijuana cigarette. Also on December 27, 1985, Zeka asked employed dancer Nicole to sell him some more cocaine. Nicole had none and had to leave the licensed premises to obtain some. She put on her street clothes, left, returned and handed Zeka four capsules of cocaine in a concealed manner. On December 31, 1985, a man named John Carroll sold cocaine to Zeka's confidential informant twice within 20 minutes. Both times the confidential informant walked over to Carroll, who was standing by the bar. The first time Mandeville himself was seated five bar stools away from Carroll. Both times the confidential informant persuaded Carroll to sell the cocaine, reached into his front shirt pocket to get the cocaine and returned to Zeka who was approximately 15 feet away. In a concealed manner, the cocaine was handed to Zeka, who held the clear plastic bag containing the cocaine up by the corner, looked at it and placed it in his pocket. Again, although Mandeville was in a position to see the first transaction if he had been paying attention and watching for it, the evidence did not prove that he actually saw the transaction. It was not proved that Carroll was an employee, as opposed to a patron, of Mandeville. On January 13, 1985, Lewis bought a half gram of cocaine from employed dancer Margie for $50. Margie delivered the cocaine in a concealed manner that would have avoided any detection. In addition to the activity involving controlled substances described above, Mandeville's employees on numerous occasions solicited drinks from Lewis as follows: Sophia December 19, 1985 Liz December 19, 1985 Angela December 19, 1985 Debbie December 19, 1985 Candy December 30, 1985 Judy December 30, 1985 Chastity December 30, 1985 Candy December 30, 1985 Margie December 26, 1985 June December 27, 1985 Cindy December 27, 1985 Candy December 27, 1985 Peggy December 27, 1985 Mandeville never asked the Division for assistance in, or suggestions for, supervising the licensed premises so as to control or eliminate illegal drug violations and drink solicitations. Rather, the evidence is that Mandeville offered to cooperate with the Escambia County Sheriff's Office to "help himself and them" in September 1985 and later in late December 1985 or early January 1986. In essence, as previously mentioned, Mandeville put the Sheriff's Office in contact with Darrell Able and, on one occasion in early January 1986, telephoned the Sheriff's Office to relate that Able supposedly thought he was going to be able to set up a drug deal for the Sheriff's Office. Neither Mandeville nor Able ever re-contacted the Sheriff's Office. Weighing the totality of the evidence, it is found that Mandeville did not supervise the premises and his employees in a reasonably diligent manner under the circumstances. Mandeville was aware from past experience of the problem of drugs in an establishment like the licensed premises in general and in the licensed premises themselves in particular. Mandeville announced adequate policies and placed some management techniques in effect to implement the policies. However, Mandeville did not adequately follow up and did not know that his staff was not following all of the techniques. They were not, for example, regularly reviewing the rules prohibiting drugs and drink solicitation with the employees, and the employees did not understand that they were to report all suspicion of violation of the rules by both employees and patrons to the management. Mandeville himself failed to follow his own procedures by rehiring Margie and failing to fire Margie and Nicole immediately upon receiving information or knowledge of their drug use and dealing at least by December 19, 1985. Not only did Mandeville and his staff not follow all the procedures that he had in place, Mandeville did not seek the assistance and suggestions of the Division for additional management techniques. He did not improve the lighting in the licensed premises, did not polygraph his employees and did not check the background of prospective employees. A combination of the laxity of Mandeville and his staff in enforcing the procedures he had in place and Mandeville's failure to adopt more effective available procedures that he should have known were required under the circumstances proximately caused the employee violations on the premises. As for the drink solicitation violations, Mandeville's written policy against drink solicitation appears to be more honored in the breach. In addition to the thirteen violations within eleven days charged in this case, the two previous notices to show cause against a licensee in which Mandeville had substantial interest and control contained a total of twenty counts of drink solicitation which were settled by stipulation.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking Alcoholic Beverage License Number 27-1311, Series 2-COP, held by Respondent, Michael G. Mandeville, d/b/a The Sugar Shack, 11 Eastfair field Drive, Pensacola, Escambia County, Florida, on all the grounds alleged in the Notice To Show Cause in this case except paragraphs (1)g. and (2)g. RECOMMENDED this 13th day of February 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 13th day of February 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0203 Rulings On Petitioner's Proposed Findings of Fact. Covered by Finding 1. 2.-5. Covered by Findings 16.-19., respectively. 6. Covered by Finding 10. 7.-8. Covered by Findings 20-21, respectively. 9. Covered by Finding 11. 10-11. Covered by Findings 22-23., respectively. Covered by Finding 25. Rejected as cumulative. Covered by Finding 26. 15-16. Covered by Findings 2-3., respectively. Covered by Finding 27. Covered by Findings 8-14. 19-20. Covered by Findings 6, 10 and 13, to the extent necessary. Covered by Findings 8 and 10, to the extent necessary. Whether Mandeville has fired June is irrelevant since the Sugar Shack has been closed since the license was suspended. Covered by Finding 13. Covered by Findings 23 and 24. Covered by Findings 4, 7, and 27. Rulings On Respondent's Proposed Findings of Fact. Covered by Finding 1. 2-4. Covered by Findings 5-7, respectively. 5. Covered by Findings 15, 8, and 9, to the extent necessary. 6-9. Covered by Finding 10, to the extent necessary. (The evidence was not clear exactly who fired the various employees but that is not necessary or relevant). 10. Covered by Finding 1. 11-13. Rejected as unnecessary recitation of procedural history. 14-17. Covered by Findings 16-19., respectively. 18. Covered by Findings 11 and 28. (There was no persuasive evidence that Mandeville "conducted an investigation concerning the activities of Nicole" or "obtained additional information" or that Mandeville fired Nicole "as soon as the Respondent verified this information"). 19-22. Covered by Findings 20-23, respectively. Covered by Finding 23. Rejected as not proven by the weight of the totality of the evidence. See Finding 11. Also, he certainly would not have been in trouble if caught by Nicole, Margie or June. Covered by Finding 25. Rejected as irrelevant and unnecessary. 27-37. Covered by Finding 26, to the extent necessary. 38-40. Rejected as incomprehensible. See also paragraphs 41-49. below. 41-49. Covered by Findings 8-14. There was no evidence that any employee ever has been fired for solicitation of drinks. The evidence was not clear which individual or group of individuals actually fired all of the individuals listed in Finding 10. Their identity is not necessary or relevant. 50. Covered by Findings 8, 13. and 14. 51-52. Covered by Finding 12. (There was only evidence that two employees were fired for refusing to allow a locker search). Covered by Findings 4 and 27. Accepted and covered by Finding 23 and the absence 55.Accepted and covered by the absence of any finding that they did. Covered by Findings 16-23. Rejected as irrelevant and unnecessary. 58-59. Accepted and covered by the absence of any finding that they did. COPIES FURNISHED: Sandra P. Stockwell, Esouire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Michael J. Griffith, Esguire Post Office Box 12308 Pensacola, Florida 32581 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 South Bronugh Street Tallahassee, Florida 32301
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Burton B. Griffin, was certified as a law enforcement officer by respondent, Criminal Justice Standards and Training Commission (Commission), having been issued law enforcement certificate number 56974 on August 3, 1979. When the events herein occurred, respondent was employed as a police officer with the Jacksonville Sheriff's Office (JSO). This controversy involves charges that respondent (a) unlawfully possessed drug paraphernalia in October 1992, (b) unlawfully possessed a crack pipe in July 1992, and (c) falsified an arrest and booking docket for one Beverly Hay in July 1992. In 1991, respondent was assigned to the Zone 3 Community Problem Response Team (team). The team, which consisted of 6 to 8 officers at any given time, worked the "core city downtown" area, which was the most crime-ridden, dangerous and violent part of the City. As a member of the team, respondent often engaged in the dangerous task of performing undercover narcotics work, which required him to make undercover purchases of drugs from local dealers. Through undercover assignments, he also apprehended local prostitutes. In order to effectively carry out his responsibilities as an undercover agent, respondent was required to wear disguises, which included such "props" as civilian clothes, a beard, and glasses. In addition, respondent would drive an unmarked car and carry a bottle of liquor and crack pipes. The pipes were placed in the ashtray of the car and in his shirt pocket to convince the drug dealer that respondent was a "street person" and not an undercover law enforcement officer. When not being used, the props were kept in a bag in the trunk of the vehicle. On July 13, 1992, respondent and his partner were flagged down by a female prostitute named Beverly Hay on a downtown street. After solicting respondent, Hay was told she would be charged with prostitution, a misdemeanor. She was also in possession of what appeared to be a crack pipe, another misdemeanor. Hay had a previous record of prostitution arrests, and she did not want to be incarcerated for a long period of time. In return for not being arrested, she agreed to act as a confidential informant and make purchases of drugs from various crack houses in the neighborhood. With this information, JSO could then obtain search warrants for each of the illicit houses. After obtaining the approval of his supervisor not to arrest Hay, respondent released Hay but gave her his pager number and instructions to call him as soon as she was ready to make a buy. Respondent kept the crack pipe in his vehicle as leverage to insure that Hay would fulfill her side of the agreement. In other words, if she did not fulfill her part of the agreement, the pipe would then be used as evidence to arrest her for possession of drug paraphanalia at a later date. Before she was released, Hay was told that this would happen. This type of arrangement was not unusual for officers working in undercover narcotics. As of July 16, 1992, Hay had still not provided the agreed upon assistance. That evening, respondent observed Hay in the 700 block of West Monroe Street. After apprehending her, respondent learned that Hay did not intend to provide any assistance. Accordingly, he prepared an arrest and booking report in which he stated that Hay was being arrested for possession of the crack pipe which he had found on her three days earlier. In the "narrative" portion of the report, however, respondent stated that Hay had the pipe in her possession on July 16, rather than the correct day of July 13. The report and crack pipe were filed with the JSO, and Hay served approximately 16 days in jail before being released. Respondent filled out the report in this manner because both he and his partner were unsure how to fill out a "deferred arrest" for a misdemeanor offense. Indeed, while most witnesses in this case were generally familiar with the procedure for a felony deferred arrest, no one had ever made a deferred arrest for a misdemeanor. The report would have been accurate had respondent simply stated that Hay was arrested with the pipe on July 13, released that day on the condition that she would provide information, and after failing to perform under her agreement, she was again arrested on July 16 for the original offense. Respondent candidly acknowledged that in hindsight he was wrong and had used poor judgment in filling out Hay's arrest report in the manner that he did. Even so, there was no intent on his part to intentionally violate any JSO policy, Commission rule or state law. More specifically, he did not intend to falsify an official record as charged in the administrative complaint. Rather, the report was incorrectly prepared due to respondent's lack of knowledge on how to make a deferred misdemeanor arrest. On October 27, 1992, the JSO internal affairs section searched all team vehicles. While searching respondent's vehicle, the section found two crack pipes (and other props) that were used by respondent during his undercover work. Even if the pipes were used as props, under a JSO general order the pipes should have been returned to the property room at the end of each shift. By failing to turn them in, respondent unintentionally violated the JSO policy. In addition, by not turning in the Hay pipe for three days until she was arrested, respondent unintentionally violated the same policy. Respondent had found the two pipes used as props laying on a street during one of his many sweeps of known drug areas. Since they were necessary props for his undercover work, he kept them in a bag with his other props. Although the JSO had an informal policy calling for paraphanalia to be checked out of the property room before each undercover assignment, respondent was unaware of this requirement, and he knew of no other officer who had ever done the same. In addition, respondent believed the items had no intrinsic value, and under another JSO general order, unclaimed property having no intrinsic value did not have to be turned into, or checked out of, the property room. At the same time respondent was using the pipes as props, it was common knowledge among JSO officers that another JSO strike force, with its supervisor's approval, was using similar props without turning them into the property room each day. Therefore, it is found that respondent could have reasonably believed he was not violating any general order by keeping his props in a bag in the trunk of his vehicle. In any event, there is no suggestion, or even a hint, that the three pipes were used for any purpose other than official police business. For violating a general order pertaining to "Competency and the Handling of Evidence," respondent received a written reprimand and a limited suspension of sixty working days in 1993. The JSO did not sustain the allegations pertaining to unlawful possession of contraband and falsifying a report. Under Rule 11B-27.003(2), Florida Administrative Code, the employing agency (JSO) is required to forward to the Commission a completed form reflecting only those violations that are sustained. For reasons unknown, in the form filed with the Commission, the JSO internal affairs section incorrectly recited that all allegations had been sustained. Thereafter, the Commission issued an administrative complaint, as amended, seeking disciplinary action against respondent's law enforcement certification for the unsustained allegations. Except for the discipline meted out by JSO in 1993, respondent has had an exemplary career as a law enforcement officer, having served with various departments since 1979. He has continued his employment with the JSO since this incident and is now in a position of special trust as an evidence technician. At hearing, his superiors lauded his integrity, honesty, work ethic and dedication as a police officer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a Final Order dismissing the administrative complaint, with prejudice. DONE AND ENTERED this 16th day of February, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 16th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2909 Petitioner: 1-3. Partially accepted in finding of fact 1. 4. Partially accepted in finding of fact 4. 5-8. Partially accepted in finding of fact 12. 9-13. Rejected as being unnecessary. Partially accepted in finding of fact 12. Rejected as being unnecessary. Rejected as recitation of testimony. Partially accepted in finding of fact 12. 18-24. Rejected as recitation of testimony. 25. Rejected as being irrelevant. 26-27. Rejected as being recitation of testimony. 28-29. Partially accepted in finding of fact 8. Partially accepted in finding of fact 9. Covered in preliminary statement. Rejected as being unnecessary. 33 Rejected as being irrelevant. 34-49. Rejected as being recitation of testimony. Partially accepted in finding of fact 11. Rejected as being recitation of testimony. Respondent: Partially accepted in findings of fact 1 and 17. Partially accepted in finding of fact 17. Partially accepted in finding of fact 3. 4-7. Rejected as being unnecessary. 8. Partially accepted in finding of fact 12. 9-10. Partially accepted in finding of fact 4. 11. Partially accepted in finding of fact 14. 12-14. Partially accepted in findings of fact 12 and 13. 15-16. Partially accepted in findings of fact 13. 17. Rejected as being unnecessary. 18-29. Partially accepted in findings of fact 5-11. 30-34. Partially accepted in findings of fact 15 and 16. 35. Partially accepted in finding of fact 11. 36-42. Partially accepted in finding of fact 17. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the evidence, cumulative or a conclusion of law. COPIES FURNISHED: Pauline M. Ingraham-Drayton, Esquire 711-B Liberty Street Jacksonville, Florida 32202-2715 T. A. Delegal, III, Esquire 5530 Beach Boulevard Jacksonville, Florida 32207 A. Leon Lowry, II, Executive Director Division of Criminal Justice Standards and Training Commission P. O. Box 1489 Tallahassee, Florida 32302-1489 Michael R. Ramage, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302-1489
The Issue This case was presented through a Notice to Show Cause/Administrative Complaint filed by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, against the Respondent, Norma D. Kettering, t/a Fancy Dancer, in which the requested relief is for the imposition of civil penalty, suspension or revocation of the beverage license allegedly held by Norma D. Kettering. The Notice to Show Cause/Administrative Complaint contains the following accusations: "1. On or about the 27th of March, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit "JOHN DOE" on your licensed premises, a public place, did unlawfully sell or deliver, or possess with intent to sell, or deliver, a controlled substance to wit; METHAQUALONE to one Robert R. Jones, Beverage Officer, for the sum of $3.50 each, U.S. Currency, contrary to F.S. 561.29 to wit F.S. 893.13. On or about the 27th of March, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; DEBORAH MARIE ALTIZER, a/k/a "GINGER", dancer, on your licensed premises, a public place, did unlawfully sell or deliver or possess with intent to sell or deliver a controlled substance to wit; METHAQUALONE, to one ROBERT R. JONES, Beverage Officer, for the sum of $3.50 each, U.S. Currency, contrary to F.S. 561.29 to wit; F.S. 893.13. On or about the 27th of March, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; TAMMIE R. FRANCIS, a/k/a "RINA", dancer, on your licensed premises, a public place, did unlawfully offer to commit an act of prostitution, by giving her body for sexual intercourse to one ROBERT R. JONES, Beverage Officer, for the sum of $50.00 U.S. Currency, contrary to F.S. 561.29 to wit; F.S. 796.07(3) (A). On or about the 9th of April, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit KATHY JEANETTE BROWN, a/k/a "KATHY", dancer, on your licensed premises, a public place, did unlawfully offer to commit an act of prostitution, by giving her body for sexual intercourse to one C. E. LLOYD, Beverage Officer, for the sum of $100.00, U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3) (A). On or about the 9th of April, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; KATHY JEANETTE BROWN, a/k/a "KATHY", dancer, on your licensed premises, a public place, did unlawfully offer to commit an act of prostitution, by giving her body for sexual intercourse to one C. E. LLOYD, Beverage Officer, for the sum of $100.00 U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3) (A). On or about the 12th of April, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; "CINNAMON", dancer, did unlawfully offer to commit an act of prostitution on your licensed premises, a public place, by giving her body for sexual intercourse to one B.A. WATTS, JR., Beverage Officer, for the sum of $20.00 U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3)(A). On or about the 12th of April, 1980, you NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; TAMMIE R. FRANCIS a/k/a "RINA", dancer, did unlawfully offer to commit an act of prostitution on your licensed premises, a public place, by giving her body for sexual intercourse to one M. L. IMPERIAL, Beverage Officer, for the sum of $50.00 U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3) (A). On or about the 13th of April, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; "TAMMY", dancer, did unlawfully offer to commit an act of prostitution on your licensed premises, a public place, by giving her body for sexual intercourse to one B.A. WATTS, JR., Beverage Officer, for the sum of $75.00, U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3)(A). On or about the 13th of April, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; "LICORICE", dancer, did unlawfully offer to commit an act of prostitution on your licensed premises, a public place by giving her body for sexual intercourse to one M. L. IMPERIAL, Beverage Officer, for the sum of $75.00 U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3)(A). On or about the 13th of April, 1980, you NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; DEBORAH MARIE ALTIZER, a/k/a "GINGER", dancer, did unlawfully sell or deliver, or possess with intent to sell or deliver on your licensed premises, a public place, a controlled substance to wit; METHAQUALONE to one ROBERT R. JONES, Beverage Officer, for the sum of $4.00 each, U.S. Currency, contrary to FS. 561.29 to wit F.S. 893.13."
Findings Of Fact The Petitioner has complained against the named Respondent pursuant to those accusations as set forth in the issues statement of this Recommended Order. The Respondent requested a formal hearing to be conducted in accordance with the provisions of Subsection 120.57(1), Florida Statues, and although the Respondent did not attend the hearing, the Respondent having requested the hearing, the Petitioner's case was presented. The Petitioner in this cause, State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida which has its responsibility the licensure and regulation of the several beverage license holders in the State of Florida. Norma D. Kettering, who trades under the name of Fancy Dancer, is the holder of License No. 69-293, Series 2-COP, which allows for the consumption of alcoholic beverages on the premises. The license is for a premises at Highways 17 and 92, Fern Park, Florida. The facts reveal that Beverage Officer Robert R. Jones went to the licensed premises on March 27, 1980, to investigate alleged Beverage Law violations. Those violations dealt with offers by the agents, servants or employees of the licensee to commit acts of prostitution. Once inside the premises, Officer Jones was approached by a dancer in the premises whose stage name is "Ginger", who commented to Officer Jones that she was loaded on "Quaaludes". (The word "Quaalude" refers to the substance Methaqualone.) Officer Jones asked "Ginger" if she knew where he could get "Quaaludes". In response to this request, "Ginger" left the officer and went to an unknown white male who was seated in a chair in the establishment. He took two Methaqualones from his person and gave them to "Ginger", who in turn gave them to Officer Jones in return for money. On that same date, March 27, 1980, "Ginger" was seen to dance for the patrons while attired In a "G" string costume. She danced both on the main stage and in the area of the audience and was seen to receive money in exchange for her dancing. She was also referred to by the master of ceremonies as "Ginger". On March 27, 1980, Officer Jones was additionally approached by another dancer known as "Rina" who had been referred to by that name by the master of ceremonies who was announcing appearance of the dancers who were dancing on the main stage in the licensed premises. "Rina" then asked Jones if he wanted a "fuck." She explained to the officer that it would cost him $50.00; and that he would have to get rid of Beverage Officer Blanton, who was with Jones at the time. "Rina" also stated that she would "go more than once if she liked the first time". This conversation took place in the licensed promises. On April 13, 1980, Officer Robert R. Jones returned to the licensed premises and encountered the dancer, "Ginger" and paid her $4.00 each for two Methaqualone which she obtained after going to the dancers' dressing room in the licensed premises and returning to Officer Jones. On that date, "Ginger" was still performing as a dancer in the licensed premises. Beverage Officer C. E. Lloyd went to the licensed premises on April 9, 1980, as part of the investigation. While in the licensed premises, he was approached by a dancer, Kathy Brown, whose stage name is "Kathy", who asked Officer Lloyd if she could dance for him. He agreed to allow her to "lap dance". Beverage Officer Lloyd paid "Kathy" $5.00 for a "lap dance" she performed. This is a form of dance where the female dancer sits on the lap of the male patron and goes through a series of gyrations while a record is played. Officer Lloyd asked Brown what would happen when she "got things started". Brown stated that she could take care of everything for him after she got off from work for a price of $100.00. He asked her what that meant and she replied she could "give you a fuck for $100.00". After this conversation, dancer Brown was called by the master of ceremonies to dance for the benefit of those patrons in the licensed premises and she danced on the stage. She was wearing a bikini-type costume. The conversation between Lloyd and Brown was overheard by Beverage Officer James A. Jones, Jr., who was with Lloyd on the date in question. She told Jones that he could drive Lloyd and her in the car while she serviced Lloyd and then she said she would "fuck" Jones, also for $100.00. Lloyd and Jones left the licensed premises and Brown followed them and upon entering the officers' vehicle, Brown was arrested for offering to commit prostitution. On April 12, 1980, Beverage Officer Bethel Watts, Jr., was dispatched to the licensed premises to continue the investigation. While in the licensed premises on that date, he was approached by a female dancer whom he had seen perform on the stage as a dancer while wearing only a "G" string. This dancer had been referred to as "Cinnamon", with that reference being made by the master of ceremonies in the licensed premises. "Cinnamon" asked the Respondent if he wanted a "lap dance". He replied, "Yes" and the dancer sat on his lap and squirmed around for the duration of one record. The dancer then told Officer Watts that she could "give you anything you want right here." He stated that he could not afford it and she asked if he had $20.00. She further stated that she could, "give him a 'quickie'". The dancer then went back to the stage area. Officer Watts paid the dancer "Cinnamon" $3.00 for the "lap dance". Officer Watts had gone to the licensed premises on April 12, 1980, with another Beverage Officer, Michael Lee Imperial. On that same date, a dancer who had been performing in the licensed premises who was known as "Rina" approached Officer Imperial and asked if he would like her to "lap dance". He agreed and she sat on his lap and performed the "dance" through three different records for a price of $5.00 each, a total price of $15.00. He asked the dancer if she did anything other than dance, to which she asked if he were a policeman, and he answered, "no". "Rina" then patted down the Beverage Officer to check to see if he were carrying any form of police identification. She then stated that she got off at 1:30 a.m. and would come by his room. She asked the Beverage Officer how much he could afford and he said "$50.00" and she indicated that she would give him "anything and everything he wanted" for the $50.00. Officers Watts and Imperial returned to the licensed premises on April 13, 1980. While in the licensed premises, Officer Imperial was approached by a dancer who was known as "Licorice" and she asked if he wanted her to "lap dance". He responded, "Yes" and she "danced" one record for a cost of $5.00. Officer Imperial stated to the dancer that she "sure felt good" and stated that he "bet" she was good in bed. She responded by stating that, "I am" and in turn he stated that he "bet" that, "I'll never find out", to which she responded that he could find out for $75.00. In turn the officer wanted to know what he would get for $75.00 and the dancer said, "You will get whatever you want me to do". Officer Imperial said that he would pick her up at seven o'clock. Nothing further occurred concerning this event. On the same date, April 13, 1980, Officers Watts and Imperial were sitting together and in the course of the conversation which Imperial had with one of the dancers, Imperial turned to Watts and asked Watts if he (Watts) wanted the dancer to get a girl for Watts. After some discussion, the dancer arranged to have another dancer whose stage name was "Tammy" and who had danced in the licensed premises and been referred to by the master of ceremonies by that name was brought and introduced to Officer Watts. (Watts had asked the other dancer to ask "Tammy" if she "would party". The other dancer responded that "Tammy" "would party" but it would cost $75.00.) Watts asked "Tammy" if she "would party" and she responded by saying that for $75.00 she would do anything that he wanted up to two hours, at which point she had an appointment in the licensed premises. The conversation terminated at the point when Watts stated that he would pick up a bottle of whiskey.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Counts One (1), Two (2), Three (3), Five (5) and Ten (10) of the Notice to Show Cause/Administrative Complaint be DISMISSED and that the Respondent not be held for further answer. It is FURTHER RECOMMENDED that the license held by the Respondent, Norma D. Kettering, No. 69-293, Series 2-COP, be REVOKED in view of the violations as established through Counts Four (4), Six (6), Seven (7), Eight (8) and Nine (9) in the Notice to Show Cause/Administrative Complaint. DONE AND ENTERED this 3rd day of October, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Norma D. Kettering, t/a Fancy Dancer 236 Highways 17 & 92 Fern Park, Florida
The Issue Should Respondent's alcoholic beverage license, number 61-00005, 2-COP be revoked, suspended or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: DABT is the division within the Department of Business and Professional Regulation charged with the responsibility of administering and enforcing the Beverage Law of the State of Florida. At all times material to this proceeding, Respondent held a series 2- COP alcoholic beverage license, number 61-00005, authorizing the Respondent to sell only beer and wine on the premises of East Side Tavern (Tavern), located on Cummer Road, 1 mile east of Highway 301, Lacoochee, Pasco County, Florida. Around 12:30 a.m. on May 16, 1994, Special Agents Ashley Murray and Keith B. Hamilton went to the Tavern in an undercover capacity. This undercover activity was initiated due to a request of the Pasco County Sheriff's Office (PCSO) concerning allegations of drugs sales on the premises of the Tavern. Agent Murray has been a sworn law enforcement officer for five and one- half years. Agent Murray completed a two-week basic Drug Enforcement Administration (DEA) drug school regarding the identification, sale and the manner of use of drugs. Agent Murray also completed a three-day undercover DEA school. During her five and one-half years as a sworn law enforcement officer, Agent Murray has been involved in at least 100 occasions where drugs were being sold or used. Agent Hamilton has been a law enforcement officer since 1981. During Agent Hamilton's tenure as a law enforcement officer he has been involved in numerous training classes regarding the identification, sale and manner of use of drugs, including courses taught by DEA. Agent Hamilton has been trained to recognize the scent of burning marijuana. Agent Hamilton has been in at least 70 different establishments where drugs, including marijuana, were being sold and used. As the agents approached the Tavern, they noticed a large number of people (100-150) standing in front of the Tavern and in a vacant lot across the road from the Tavern. Additionally, cars were parked along Cummer Road in front of the Tavern. The agents also testified that a "lot" of the people standing outside appeared to be "young". Upon entering the Tavern, the agents noticed that no one was checking identification at the door. The Tavern consists of two rooms divided by wall with a door between the two rooms. The bar is located in one room. The second room is a disco/dance area. Based on the description of the inside of the Tavern, a person behind the bar would not have clear view of all of the disco/dance area. On May 16, 1994, the Tavern was crowded with customers. Agent Murray saw what appeared to her to be a "lot of really young kids" in the crowd. Upon entering the Tavern on May 16, 1994, Agent Hamilton detected a scent in the air that resembled, based on his training and experience, the odor of burning marijuana. Agent Hamilton did not actually see anyone smoking marijuana inside the Tavern. Agent Murray also noticed, both on the inside of the Tavern in the dance floor area and outside the Tavern by the entrance, what appeared to her to be a hand-to-hand exchange between customers of what appeared to be money for something that she could not identify. As Agent Murray left the Tavern she noticed what appeared to her, based on experience and training, to be customers passing and maybe smoking marijuana. However, Agent Murray did not actually see the marijuana or the customers actually smoking marijuana. Agent Murray also noticed a customer with a closed fist going to another customer and placing the closed fist over an open palm and then the release of the closed fist. Based on her training and experience, this appeared to Agent Murray to be an exchange of crack cocaine between the customers. Agent Murray did not see or confirm that any crack cocaine was actually being exchanged. Upon reentering the Tavern, the agents were together at the bar and saw a black female customer place a large bottle of liquid on top of the bar close to where they were sitting. The customer ordered something from the bar and left with the bottle. Agent Murray testified that by observing the label on the bottle she was able to identify the liquid as scotch whiskey. Agent Hamilton testified that he observed the same black female with a bottle of "alcohol, distilled spirits" and further identified the liquid as a "bottle of gin". Neither Agent Murray nor Agent Hamilton testified that the bottle bore the manufacturer's insignia, name or trademark. Both agents were apparently close enough to the customer to be able to observe the label. Neither agent smelled or tasted the contents of the bottle. For reasons of their own, the agents did not seize the bottle. Agent Murray thought she saw the Respondent behind the bar on that day. Agent Hamilton referred to the person behind the bar that day as the clerk but did not identify the Respondent as being the clerk on May 16, 1994. On August 8, 1994, ten DABT agents and 20 deputies from the PCSO conducted a walk-through inspection (inspection) of the Tavern. The agents and deputies were dressed in such attire as to be visibly recognized as law enforcement officers. During the inspection on August 8, 1994, DABT Sergeant Allen Ray observed an individual inside the Tavern in possession of a cup of beer, which individual Sergeant Ray suspected of being under 21 years of age. Sergeant Ray testified that this person identified herself as Tamieka Ranell Shaw and that Shaw advised him she was under 21 years of age. Sergeant Ray then took Shaw outside and placed her in the custody of Agent Hamilton for processing. Agent Hamilton testified that Shaw advised him that she was 16 years of age. At this time, Shaw did not have a driver's license or any other type of identification in her possession that would verify her age or date of birth. Furthermore, Shaw was not identified by a family member or anyone else having personal knowledge of Shaw's age or date of birth. Neither Shaw nor anyone else having personal knowledge of Shaw's age testified at the hearing. Furthermore, DABT did not present any documentary evidence of Shaw's age at the hearing. DABT failed to prove that Shaw was under 21 years of age on August 8, 1994. There was no evidence that Respondent or any person working for Respondent had sold, given, served or permitted the beer to be served to Shaw. During the August 8, 1994, inspection, DABT Sergeant John Allen observed three individuals in the Tavern that he suspected of being under 21 years of age that were in possession of what Sergeant Allen considered to be an alcoholic beverage. Sergeant Allen escorted each of these individuals out of the Tavern separately. None of these individuals had a drivers license or any other type of identification to verify their age or date of birth. Sergeant Allen testified that each of the individuals identified themselves and admitted to being under the age of 21 years. However, one of the individuals managed to leave the premises before any other identification could be made. Sergeant Allen testified that Ronald Adair, one of the alleged underage customers referred to in Finding of Fact 15 above, was identified by his mother as being under 21 years of age in a telephone conversation with Sergeant Allen on August 8, 1994. However, neither Adair, his mother nor anyone else having personal knowledge of Adair's age was present at the hearing to testify as to Adair's age. Furthermore, DABT did not present any type of documentary evidence of Adair's age at the hearing. DABT failed to prove that Adair was under 21 years of age on August 8, 1994. The person identifying himself as Marlon Inmon, another of the alleged underage customers referred to Finding of Fact 15 above, was alleged to have been in possession of an alcoholic beverage inside the Tavern on August 8, 1994. Sergeant Allen testified that he talked to a relative of Inmon's over the telephone and that this relative identified Inmon and advised Sgt. Allen that Inmon was under 21 years of age. However, this person did not talk to or see the person claiming to be Inmon. Neither Inmon nor the person identifying Inmon over the telephone or anyone else with personal knowledge of Inmon's age testified at the hearing. Furthermore, DABT did not present any documentary evidence of Inmon's age at the hearing. DABT failed to prove that Inmon was under 21 years of age on August 8, 1994. The third alleged underage person referred to in Finding of Fact 15 above in possession of an alcoholic beverage on August 8, 1994, was never identified by anyone before he left the premises. Neither this person nor anyone else having personal knowledge of this person's age testified at the hearing as to this person's age. Furthermore, DABT did not present any documentary evidence as to this person's age. DABT has failed to prove that this person was under 21 years of age on August 8, 1994. During the walk-through inspection on August 8, 1994, DABT Special Agent Michael Freese seized a 1.75 liter of Seagrams gin, alcoholic beverage. The gin was in plain view on a table in the dance floor area. In attempting to seize the gin, Agent Freese had a confrontation with a customer who claimed the gin belonged to him. There was no evidence that the gin had been purchased on the premises. This gin is not the type of alcoholic beverage allowed to be possessed by the licensee or anyone else on the licensed premises of a licensee holding only a 2-COP alcoholic beverage license such as Respondent. The Respondent was present at the Tavern on August 8, 1994, and either directly observed, or was in such a position at the bar to have easily detected the presence of the unauthorized alcoholic beverage on the table. Also during the walk-through inspection on August 8, 1994, Agent Freese observed a small plastic bag containing a substance that resembled marijuana on the floor behind one of the speakers around the "DJ" booth. Agent Freese seized the bag and identified it as marijuana by sight and smell. A field test conducted by Agent Freese indicated that the substance was marijuana. However, Agent Freese testified that the field test may not be 100 percent accurate. No laboratory analysis was made of the substance suspected of being marijuana. DABT failed to prove that the substance was in fact marijuana. Likewise, DABT has failed to prove that Stewart was aware of alleged marijuana being present on the premises. During the walk-through inspection on August 8, 1994, Lieutenant Bruce Schmelter, PCSO, seized a loaded 22-caliber revolver that was protruding from beneath one of the speakers near the "DJ" booth. The revolver was turned over to DABT. However, DABT failed to prove that Stewart was aware of the revolver being present on the premises. After the walk-through inspection on August 8, 1994, Sergeant Allen gave Respondent official notice of the problems encountered during the inspection. On September 18, 1994, a second walk-through inspection (second inspection) was conducted at the Tavern by ten DABT agents and 25 PCSO deputies. The DABT agents and the deputies from the PCSO were dressed in such attire as to be visibly recognized as law enforcement officers. During the second inspection, agents Murray and Aikens advised Respondent that they intended to go behind the bar to secure that area. After advising Stewart of their intended action, there was a confrontation between Stewart and the agents wherein Stewart's daughter became involved. The agents became concerned because of the crowd and notified Sergeant Ray of the problem. Sergeant Ray advised Stewart of why they were there and that DABT agents had the authority to secure the area behind the bar. After this explanation, Respondent allowed Sergeant Ray and another DABT agent behind the bar without further incident. After the incident at the bar during the second inspection, Agents Murray and Aikens seized a bottle of Seagrams Extra Dry Gin, an alcoholic beverage, which they found on the floor against the wall in the area of the bar inside the Tavern. This gin is not the type of alcoholic beverage allowed to be possessed by the licensee or anyone else on or at the licensed premises of a licensee holding a 2-COP alcoholic beverage license such as Respondent. The Respondent was present in the Tavern on September 18, 1994, and either directly observed, or was in such a position as to have easily detected the presence of the unauthorized alcoholic beverage. During the second inspection, Agent Hamilton observed an individual in possession of a bottle of beer which individual he suspected of being under 21 years of age. Agent Hamilton testified that the individual was identified as Corey Anthony Owens, 20 years of age. Neither Owens nor anyone else having personal knowledge of Owens' age were present to testify at the hearing. Furthermore, DABT did not present any documentary evidence as to Owens' age. Agent Hamilton testified that Owens advised him that he had purchased the beer in the Tavern from a black male behind the bar. DABT presented no other evidence that the beer had been purchased in the Tavern. Although DABT has proven that Owens did have beer in his possession while in the Tavern on September 18, 1994, DABT failed to prove that Owens purchased or was served or given the beer in his possession on September 18, 1994, by Stewart or his servant, agent or employee. Furthermore, DABT failed to prove that Owens was under 21 years of age on September 18, 1994. On December 7, 1994, Captain Bruce Ashley met with Stewart at Stewart's request to discuss the Administrative Action that had been served on Stewart. At Stewart's request, Captain Ashley marked an X by the first box on the Request For Hearing which states as follows: "I dispute issues of fact. (Please list which of the charges and counts in the Administrative Action you dispute and why)." Also at Stewart's request, Captain Ashley wrote the following: "There are facts and issues that are not true that need to be discussed. I have documents and facts to bring out about this matter." (Emphasis supplied) Below this statement Captain Ashley wrote "Written On Behalf Of Licensee By" and signed his name. Below the above underlined statement there was an X with Isaiah Stewart's signature. On December 8, 1994, Captain Ashley wrote a memorandum setting forth what Captain Ashley considered to be the conversation between he and Stewart on December 7, 1994. However, because of the circumstances under which this conversation with Respondent occurred and the conflict between the statement signed by Respondent and Captain Ashley's memorandum, the memorandum is somewhat suspect and a cause for concern, and thereby lacks credibility. DABT's exhibit 4 consist of computer records from the PCSO listing the calls that the PCSO responded to around the Tavern from May 12, 1993 through June 29, 1994. Using these computer records DABT summarized the type of calls and the total number of each type of call received between February, 1994 and June 29, 1994. This summary shows a total of 69 calls of various types responded to by the PCSO during the period covered by the summary. Of the 69 calls listed in the summary, 22 were calls to backup units which apparently were backup for some of the other 47 calls. Ten calls were to assist a sick person. The balance of the calls were as follows: 2-affray/incite or encourage riot; 1- special patrol request; 1-juvenile problem; 3-miscellaneous incident; 2-field interrogation report; 4-shooting in area; 1-battery (simple); 4- disturbance(noise); 1-accident traffic; 1-illegal parking; 1-suspicious person; 3-narcotics violation; 1-throwing a deadly missile; 1-obstructing police without violence; 1-warrant arrest; 1-robbery, strong arm; 1-simple assault; 2-traffic warning; 1-aggravated assault; 1-weapons; 1-shooting into occupied dwelling; 1- battery on officer and 2-special detail. It is clear from the PCSO computer printout that the whole area around Cummer Road, not just the area around the Tavern, kept the PCSO busy responding to calls during the period in question. DABT presented no evidence as to the legitimacy of the call or if the call involved the activity of the Tavern's customers on the premises of the Tavern or the activity of someone else in the vicinity of the Tavern or what action was required upon the PCSO responding to the call. DABT failed to prove that Respondent kept or maintained a premises which was resorted to by persons who use or sell illegal drugs. DABT failed to prove that between the dates of February 1994, and September 1994, the Respondent maintained a public nuisance at his licensed premises.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law and having reviewed the penalty guidelines set forth in Rule 61A-2.022, Florida Administrative Code, it is recommended that a final order be entered finding Respondent guilty of the allegations contained in Counts 5 and 8 of the Administrative Action and for this violation that DABT assess an administrative fine in the amount of $1,000 against Respondent. It is further recommended that DABT dismiss Counts 1, 2, 3, 4, 6, 7, 9, 10 and 11 of the Administrative Action. RECOMMENDED this day 27th of September, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1482 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner in this case. Petitioner's Proposed Findings of Fact. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1-3(2); 4-5(3); 6(6); 7(7); 8(8); 9(9); 10(5); 11(10); 12(4,10-11); 13(11); 14(12); 15(13); 17-18(15); 21-22(19); 24-25(21); 26(22); 27(23); 28-29(24); 30(25); 32(27); and 34(28). Proposed finding of fact 16 is adopted in Finding of Fact 14, except that portion regarding the age of Shaw, which is rejected. Proposed finding of fact 19 is adopted in Finding of Fact 16, except that portion regarding the age of Adair, which is rejected. Proposed finding of fact 20 is adopted in Finding of Fact 17, except that portion regarding the age of Inmon, which is rejected. Proposed finding of Fact 23 is adopted in Finding of Fact 19, except that the field test did not absolutely prove that the substance was in fact marijuana. Proposed finding of fact 31 is adopted in Finding of Fact 26, except that portion regarding the age of Owens and that Owens purchased the beer in the Tavern, which is rejected. Proposed finding of fact 33 is rejected as not being supported by competent, substantial evidence in the record. The Respondent elected not file any proposed findings of fact. COPIES FURNISHED: John J. Harris, Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda L. Goodgame, Esquire General Counsel Department of Business Professional Regulations Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard A. Grumberg, Esquire Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Isaiah Stewart, Pro se Post Office Box 429 Lacoochie Florida 33537
The Issue The issues are as follows: (a) whether Respondent violated Sections 562.11(1) (a) and 561.29 (1) (a), Florida Statutes,1 by selling an alcoholic beverage to Petitioner's undercover investigative aide on November 17, 2006; and (b) if so, what penalty, if any, should be imposed.
Findings Of Fact Respondent holds License No. 16-00664, Series 3-PS. The license authorizes Respondent to sell packaged wine, liquor and beer at the licensed premises, which is located at 1701 West Atlantic Boulevard, Lauderdale Lakes, Florida. Mr. Nasser is the owner of Tiny's Liquor, a relatively small liquor store. He has been licensed to sell at that store for approximately three years. Mr. Nasser has held a beverage license for approximately 10 years, and is not aware of an incident where he personally sold alcohol to an underaged person prior to this case. Mr. Nassar has a personal and business rule not to sell alcohol to underaged persons. His policy is to always check an individual's identification before selling him or her alcohol and tobacco. Mr. Nassar trains his employees to check each patron's age and not to sell alcohol to underaged persons. He also posts signs in the store regarding the prohibition of underaged sales. On November 17, 2006, Petitioner performed an undercover compliance check of Respondent based on an anonymous complaint that underage beverage sales were taking place at Tiny's Liquor. Investigative Aide #0045, acted as Petitioner's underage operative/investigative aide on November 17, 2007. The Investigative Aide #0045, who was born on June 7, 1988, was an 18-year-old female, who wore braces at the time of the incident. Investigative Aide #0045 entered Tiny's Liquor, walked straight to the beer cooler and took out a 16-ounce can of Budweiser beer. She then went to the line to purchase the beer and walked to the counter to wait her turn in line. One customer was in front of the aide and one was behind her when she got in line. A clerk took care of the customer in front of Investigative Aide #0045 with his or her purchase. The owner of Tiny's Liquor, Mr. Nasser, took over the clerk's duties at the counter after the sale to the person in front of Investigative Aide #0045. Mr. Nassar assisted Investigative Aide #0045 with her purchase of beer. The aide placed the can of beer on the counter and handed Mr. Nasser the money to pay for it. Mr. Nasser accepted the money, selling the aide the beer. Mr. Nassar did not ask the aide's age or check her identification. Mr. Nasser placed the beer in the bag and gave it to the aide. After the purchase, the Investigative Aide exited the store and gave the can of beer to Petitioner's agent, who had witnessed the transaction in the store. Petitioner's agents entered the store and spoke with Respondent. As soon as they identified themselves, Mr. Nasser apologized and said, "I made a mistake and should have checked ID but I was trying to help the clerk out." Mr. Nasser was very cooperative and polite during his arrest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding Respondent to have committed one violation of Subsection 562.11(1)(a), Florida Statutes, and imposing an administrative penalty of a seven-day suspension of Respondent's license and a $1000.00 fine. DONE AND ENTERED this day 20th of September, 2007, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 2007.
Findings Of Fact Respondent, M.S.B. Lounges, Inc., d/b/a Bird's Nest Lounge, is a liquor licensee and holder of License 23-2365 (4-COP) issued by Petitioner, Division of Alcoholic Beverages and Tobacco. It is located at 19017 Southwest 40th Street, Miami, Florida. At approximately 11:00 p.m., on or about January 13, 1981, Beverage Officers Patrick M. Roberts and Robert R. Jones entered the licensed premises of Respondent in an undercover capacity. Their purpose was to ascertain whether controlled substances could be obtained from employees of the licensee. The visit was prompted by complaints received by the Petitioner's Miami District Office that narcotics were being sold and used on the licensed premises. There were approximately 15 to 20 patrons present in the lounge that evening during the visit of Roberts and Jones. The patrons were seated either at the bar or tables around the dance floor, where from 3 to 5 girls performed dances for the customers. A white female, Betty Lou Stamm, was the on-duty bartender. Upon being seated, and after ordering drinks, Roberts initiated a conversation with Stamm and asked her if it was possible to obtain a "lude" (methaqualone). She advised him that the person whom she generally obtained ludes from had just left the premises, but that he might return later on that evening. The officers also engaged in a conversation with a white female dancer identified as B.J. They attempted to purchase quaaludes from her, but were unsuccessful. At approximately 11:58 p.m. that evening, while preparing to depart the premises, Stamm reached across the bar with a closed hand and dropped two tablets into Roberts' hand. At that time, the manager of the lounge, Paul Moore, was behind the bar assisting Stamm in serving customers and a number of patrons were seated close by. The tablets given to Roberts were later established to be a controlled substance, methaqualone (Petitioner's Exhibit 1) At approximately 12:30 a.m., on or about January 17, 1981, Beverage Officers Roberts and Jones again visited the licensed premises of the Bird's Nest Lounge. Upon entering the premises, they seated themselves at the bar and remained there for about an hour and a half. During this time they asked Betty Lou Stamm, the on-duty bartender, if she could obtain some quaaludes. She stated that because her "source" was not on the premises, she could not. B. J., a dancer who was working that night, approached them at 2:00 a.m. and asked if they had any marijuana. Roberts responded he did not and asked if she had any. B. J. told them if "they would just sit tight she would take care of (them)." The officers then observed B. J. approach 5 or 6 other patrons seated at the bar and begin casual conversations with then. One of these patrons, a white male, produced a plastic bag which appeared to contain marijuana and placed a handful of the substance onto a napkin which B. J. was holding. B. J. then went into the ladies restroom for approximately 5 minutes, returned to the bar, handed Roberts a napkin, and stated "here is enough for a couple of joints." Roberts opened the napkin on the bar and observed what appeared to be marijuana. A subsequent laboratory analysis established that the substance was indeed .9 gram of marijuana (Petitioner's Exhibit 2). When the delivery occurred, Stamm and Moore were working the bar, and a number of patrons were seated close by. At approximately 10:00 p.m. on or about January 21, 1981, Officers Roberts and Jones entered the licensed premises of the Respondent and seated themselves at the bar. After ordering a drink, they observed Betty Lou Stamm playing a game machine in the corner of the bar. Betty was not on duty that evening, having completed her shift at 8:00 p.m. Roberts approached her, and during the course of the conversation asked if she had cocaine or marijuana. She replied she did not. He then asked if she had any "ludes" (methaqualone) . Betty told him to wait, and Roberts returned to the bar. There he observed Betty approach and engage in a conversation with an unidentified white female who had been dancing earlier in the evening. Betty returned to Roberts and stated she had two ludes for $6. After Roberts paid her $6, Betty carried the money to the white female who handed Betty an unknown substance. Betty then motioned Roberts to come to a phone booth located at the rear of the bar. There she handed Roberts two tablets which were subsequently established by laboratory analysis to be methaqualone (Petitioner's Exhibit 3) Mr. William J. Miller is the owner of the Bird's Nest Lounge. He does not actively work in the lounge but does assist in cleaning up the premises each morning. His wife works the day shift on occasion when he runs short of help. Miller occasionally visits the premises in the evenings, but was not present when the transactions occurred, nor was he personally cognizant of the illegal drug transactions occurring on the licensed premises. Although he has outside interests, Miller considers the lounge to be his "primary business". He employs a full-time manager, Paul Moore, who comes on duty each evening at 8:00 p.m. A "House Policy for Dancers at Bird's Nest Lounge" has been posted on the dancers' dressing room door since 1976. This "Policy" enumerates prohibited practices by dancers and provides, inter alia, that "no excessive drinking or taking of drugs will be permitted while at work. (This violation will cause for (sic) immediate dismissal)." (Respondent's Exhibit 2). Brenda Johnson (known as B.J.) was advised of this regulation when she was hired and signed a written agreement whereby she agreed to read and conform to the House Policy (Respondent's Exhibit 1). Other dancers are also required to do the same. In addition, the regular employees, including the manager, are orally advised about the rules relating to narcotics. If an employee or dancer is caught "participating in drugs", Miller's policy is to impose a monetary fine on the first occasion and to dismiss the employee or dancer for any subsequent transgression. It is also the policy of the lounge to request any patron found using narcotics to leave the premises. Betty Lou Stamm worked at the Bird's Nest Lounge as a bartender for about 3 months. She was fired shortly after the events in question occurred. B. J., a dancer, was also fired immediately after her participation in the transactions was discovered. The Respondent has operated his lounge since 1975 or 1976. Other than a soliciting violation in 1976, there have been no other beverage violations by the licensee. At no time while on the licensed premises did the beverage agents see anyone, patron or employee, using any suspected narcotic nor did they ever smell the aroma of marijuana in the air.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violations as alleged in Counts 1, 2, 3 and 5 of the Notice to Show Cause. It is further RECOMMENDED that the charge contained in Count 4 be dismissed. It is further RECOMMENDED that Respondent's License No. 23-2365 (4-COP) be suspended for a period of 30 days from the date of the final agency order. DONE and ENTERED this 12th day of June, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1981. COPIES FURNISHED: Daniel C. Brown, Esquire 725 South Bronough Street Tallahassee, Florida 32301 Seymour Chadroff, Esquire and Lane S. Abraham, Esquire 200 Southeast 1st Street Suite 800 Miami, Florida 33131 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Petitioner, vs. CASE NO. 81-1004 LOUNGE, INC., d/b/a BIRD'S NEST LOUNGE, Respondent. _/
The Issue Whether the Respondent committed the violation alleged in the Administrative Complaint dated April 12, 2010, and, if so, the amount of surcharge, late penalties, and interest owed, and the administrative penalty, if any, that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division, within the Department of Business and Professional Regulation, is the state agency responsible for regulating the distribution and sale of alcoholic beverages within the State of Florida. § 561.02, Fla. Stat. Pertinent to this proceeding, the Division maintained a district office located in Margate, Florida, which, in turn, had satellite offices located in Fort Myers, Florida, and West Palm Beach, Florida. At the times material to this proceeding, S.T. Complex held a 4COP Quota License, number 60-13059, which was issued by the Division and which, among other things, allowed S.T. Complex to sell alcohol by the drink for consumption on the its premises. In a letter dated October 11, 2007, the Division advised S.T. Complex that it was initiating a desk audit of S.T. Complex’s surcharge reports for the period extending from September 1, 2004, through June 30, 2007, using distributor sales information. The audit period was subsequently changed to the period extending from August 1, 2006, through June 30, 2007, because an audit of S.T. Complex’s surcharge reports had been completed for the period ending July 30, 2006. The audit period ended with June 30, 2007, because the surcharge on the sale of alcoholic beverages had been repealed as of that date. A questionnaire was enclosed with the October 11, 2007, letter, and S.T. Complex was asked to submit the completed questionnaire to the office of the Division located in Margate, Florida, no later than October 25, 2007. S.T. Complex was further directed to contact Yvonne McNaughton, the Division auditor assigned to conduct the audit of S.T. Complex’s surcharge reports, at the Division's Margate office if S.T. Complex had any questions about the audit; a phone number for Ms. McNaughton was provided in the letter. S.T. Complex did not return the questionnaire enclosed with the October 11, 2007, letter and did not contact Ms. McNaughton regarding the audit. Consequently, Ms. McNaughton used the questionnaire submitted by S.T. Complex for the previous audit. The questionnaire indicated that S.T. Complex had chosen the "purchase method" for the computation of the surcharge owed on its sales of alcoholic beverages, and S.T. Complex listed five distributors from which it purchased its supply of alcoholic beverages. Under the purchase method for calculating the alcoholic beverage surcharge in effect at the times material to this proceeding, a business reported its beginning inventory and paid the surcharge on the full inventory. The business was required to send in monthly reports disclosing the amount of alcoholic beverages, by category, that the business purchased the previous month to replenish the original inventory. The business was required to remit the surcharge monthly on the amount of alcoholic beverages purchased. The business would then provide the Division its ending inventory and would receive a credit against the total surcharges paid throughout the year. Pertinent to this proceeding, distributors of alcoholic beverages in Florida were required to report to the Division each month a detailed listing of the sales of alcoholic beverages in Florida. The distributors reported the name of the business, the amount in gallons of the various categories of alcoholic beverages sold to that business during the month, and the invoice number for each sale. This information was put into a database maintained by the Division, and the information in the database was used by the Division to compare the amount of purchases reported by a business with the amount of sales to that business reported by the distributors. In conducting the audit of S.T. Complex, Ms. McNaughton discovered that it had not submitted any surcharge reports during the audit period and had not remitted any surcharge on the purchase of alcoholic beverages during the audit period. Ms. McNaughton, therefore, relied on the information provided by the distributors reporting sales of alcoholic beverages to S.T. Complex for the audit period. The amount of alcoholic beverages the distributors reported selling to S.T. Complex during the audit period was 2604 gallons of beer, 138.68 gallons of wine, and 1724 gallons of liquor. After Ms. McNaughton deducted an allowance for spillage, she calculated that the amount of alcoholic beverages subject to the surcharge was 2473.81 gallons of beer, 131.74 gallons of wine, and 1552.01 gallons of liquor. Ms. McNaughton then calculated that S.T. Complex owed a total surcharge on alcoholic beverages purchased during the audit period of $7,129.90, which included a surcharge of $346.34 for beer; $140.96 for wine; and $6,642.60 for liquor purchased. Because S.T. Complex had not paid any surcharge during the audit period, a reporting penalty in the amount of $3,433.70 was added to the amount of the surcharge due, together with interest in the amount of $512.53, for a total statutory liability of $11,076.13. A letter dated April 22, 2008, was prepared by the Division advising S.T. Complex of the amount of statutory liability owed as a result of the audit. Prior to sending the audit letter to S.T. Complex, the audit was reviewed by another Division auditor to determine if Ms. McNaughton had completed the audit properly and to verify her calculations. This review was completed on June 4, 2008, and no errors were found. The April 22, 2008, letter was sent to S.T. Complex by certified mail on June 11, 2008, and the return receipt shows that it was received on June 12, 2008. S.T. Complex was advised that, if it disagreed with the audit findings, it had 30 days from the date the letter had been received to contact Ms. McNaughton, the auditor in charge of the audit. Ms. McNaughton's phone number and fax number were included on the letter, as well as the address for the Division's Margate, Florida, office. Ms. McNaughton did not receive any communication from S.T. Complex about the audit, and the matter was forwarded to Captain Carol Oswiany on August 28, 2008, with a request that she file an administrative case against S.T. Complex for failure to pay the amounts stated in the surcharge audit for August 1, 2006, through June 30, 2007. At the times material to this proceeding, Frank Garcia was the owner of S.T. Complex, and he managed the Fun House Nightclub, which was located in West Palm Beach, Florida. Mr. Garcia was current with his surcharge payments as of the end of July 2006, and he was aware that the surcharge would be terminated as of June 30, 2007. Mr. Garcia believed that, because he would have an inventory of alcoholic beverages on June 30, 2007, he would receive a substantial offset against the surcharge he owed for the period extending from August 1, 2006, through June 30, 2007. Consequently, anticipating that his surcharge liability would be small and that it would be better to get a credit against the surcharge owed than to wait for a refund of the surcharge paid during the audit period, Mr. Garcia decided not to submit monthly reports on the purchases of alcoholic beverages for the nightclub during the audit period or to remit the surcharge due on these monthly purchases. At the times material to this proceeding, Mr. Garcia kept his weekly inventory on a form he had devised for his own use. He used the point system for determining how much of each category of alcoholic beverages had been used during a given period of time. Mr. Garcia compared this information with the amount of alcoholic beverages in his stockroom, and he was able to determine how much of the various categories of alcoholic beverages he needed to purchase to replenish his inventory. The information on the Mr. Garcia's forms was handwritten, and it was not transferred into a computer database. Mr. Garcia routinely discarded these inventory forms; they were used only for determining how much alcoholic beverages he needed to purchase for a given period of time and were essentially useless after the alcoholic beverages were ordered. The nightclub was located a few blocks from the Division's West Palm Beach office, which was a satellite office of the district office in Margate. Because of its close proximity to Mr. Garcia's place of business, he routinely dealt with that office and had rarely had contact with the Division's Margate or Tallahassee, Florida, offices. After he received the letter dated April 22, 2008, Mr. Garcia went to the Division's West Palm Beach office and spoke with Captain Carol Owsiany. According to Mr. Garcia, Captain Owsiany told him how to handle the matter. Mr. Garcia then prepared a letter and went back to the West Palm Beach office and spoke with a Mr. Wilson. Mr. Wilson telephoned the Division's Tallahassee office, and Mr. Garcia assumes that Mr. Wilson was told how to proceed. Mr. Garcia provided Mr. Wilson with his explanation of why he believed the audit was wrong and told Mr. Wilson he wanted an informal hearing. Mr. Garcia observed Mr. Wilson type something into the office computer and assumed that he was transmitting the pertinent information to Tallahassee. Although Mr. Garcia's testimony on this point is vague and somewhat confusing, he insisted that he provided the Division with the ending inventory of June 30, 2007, although it is unclear to whom he provided the inventory. It is clear, however, that Mr. Garcia had no contact with Ms. McNaughton. Mr. Garcia heard nothing further from the Division until he was served with the Administrative Complaint dated April 12, 2010, which was signed by then Major Owsiany. At the time he received the Administrative Complaint and at the time of the final hearing, Mr. Garcia did not have in his possession a copy of the ending inventory for June 30, 2007. Ultimate findings of fact The evidence presented by the Division is sufficient to establish with the requisite degree of certainty that S.T. Complex failed to file monthly reports on the quantities of the alcoholic beverages it purchased during the audit period and failed to remit the surcharge due on its purchases of alcoholic beverages for the audit period. The testimony of Mr. Garcia that, upon receiving the April 22, 2008, letter, he went to the Division's West Palm Beach office for instructions on how to proceed and that he thought the matter had been resolved as a result of the actions of the Division's West Palm Beach office is credited. Significantly, however, Mr. Garcia failed to follow the explicit instructions in the April 22, 2008, letter that he contact Ms. McNaughton regarding any disagreement he had with the audit and explain to her the reasons for contesting the findings. For this reason, Mr. Garcia's defense that he timely advised the Division of his disagreement with the audit and provided the Division with the ending inventory for June 30, 2007, is not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order: Finding S.T. Complex LLC, d/b/a Fun House Nightclub, guilty of having failed to report and remit the surcharge on alcoholic beverages consumed on its premises during the period extending from August 1, 2006, through June 30, 2007, in violation of section 561.501(1)(a), Florida Statutes; Requiring S.T. Complex LLC to remit to the Division $11,076.13, which is composed of the principal balance of the surcharged owed for the period extending from August 1, 2006, through June 30, 2007, in the amount of $7,129.90, late penalties in the amount of $3,433.70, and interest in the amount of $512.53. Finding that, as a consequence of its violation of section 561.501(1)(a), S.T. Complex violated the Beverage Law and, therefore, section 561.29(1)(a); and Imposing an administrative fine in the amount of $1,782.47, as specified in the table attached to Florida Administrative Code Rule 61A-2.022 DONE AND ENTERED this 26th day of January, 2011, in Tallahassee, Leon County, Florida. S PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2011.
Findings Of Fact Based upon the evidence adduced at hearing, the factual stipulations of the parties, and the record as a whole, the following Findings of Fact are made: Respondent and the Mermaid Bar Respondent, whose sole corporate officer and shareholder is Robert Simone, holds alcoholic beverage license number 60-00429, Series 4-COP issued by the Department. The licensed premises is the Mermaid Bar (hereinafter referred to as the "Mermaid"), a bar located in Palm Beach County that, like a handful of others in the County, offers adult entertainment featuring female dancers wearing little or no clothing. Operation and Management of the Mermaid James Galbraith manages the Mermaid pursuant to a verbal agreement that he has with Simone. Simone nonetheless plays an active role in the day-to-day operation of the bar and pays regular visits to the establishment, usually in the daytime during the morning hours, to check on things. Among the managerial responsibilities that Simone has delegated to Galbraith is authority over personnel matters, including the hiring, disciplining and firing of the barmaids and dancers who work at the bar. Galbraith exercised such authority when, with input from Simone, he drafted the following written "[r]ules for conduct of dancers" (hereinafter referred to as the "Rules"): Anyone dancing on stage [is] not allowed to show any pubic area. Anyone doing so will be dismissed. Anyone dancing on floor must wear cover up at all times. All girls are to work a minimum of 4 days. No girls are to solicit for anything (drinks, etc.). No girls are to take phone numbers or give out phone numbers. Private dances are $5.00 or $10.00 contribution. 2/ No bumping or grinding, no letting customers grab breast or pubic area. No touching of customers. You will be called down one time. If you have to be called down twice, you will be dismissed. If you have a problem with a customer, stop dancing and get a bouncer. Do not try to handle it yourself. Each dancer receives a copy of the Rules upon being hired. In addition, a copy is posted in the dancers' dressing room. When he is present at the bar, Galbraith is responsible for monitoring the activities taking place on the premises and maintaining order. He relies on the barmaids to assist him in keeping an eye on the dancers. Prior Disciplinary Action In November of 1992, the Department's predecessor, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (hereinafter referred to as "DBR"), served on Respondent a Notice to Show Cause that contained the following allegations: On or about August 20, 1992, you, MERMAID BAR, INC., a vendor licensed under the beverage laws of the State of Florida, through you, your agents, servants, employees or entertainers, to wit: LESSIE MAE STRANGE AKA LESSIE MAE COLLIGAN, while on your licensed premises, did unlawfully commit or engage in lewdness by dancing in a topless state for Special Agent Sgt. HOOPER, rubbing her breasts across the Agent's face and body and forcefully rubbing her crotch area against the Agent's groin, simulating sexual intercourse, in exchange for U.S. Currency, contrary to Section 796.07(3)(a), F.S., within Section 561.29., F.S. On or about August 20, 1992, you, MERMAID BAR, INC., a vendor licensed under the beverage laws of the State of Florida, through you, your agents, servants, employees or entertainers, to wit: DEBRAH BACON, while on your licensed premises, did unlawfully commit or engage in lewdness by dancing in a topless state for Special Agent Sgt. HOOPER, rubbing her breasts across the Agent's face and body and forcefully rubbing her crotch area against the Agent's groin, simulating sexual intercourse, in exchange for U.S. Currency, contrary to Section 796.07(3)(a), F.S., within Section 561.29., F.S. On or about August 20, 1992, you, MERMAID BAR, INC., a vendor licensed under the beverage laws of the State of Florida, through you, your agents, servants, employees or entertainers, to wit: DEBBIE ANN SEIWELL, while on your licensed premises, did unlawfully commit or engage in lewdness by dancing in a topless state for Special Agent STOOPS and Sgt. HOOPER, rubbing her breasts across the Agent's face and body and forcefully rubbing her crotch area against the Agent's groin, simulating sexual intercourse, in exchange for U.S. Currency, contrary to Section 796.07(3)(a), F.S., within Section 561.29., F.S. On or about August 20, 1992, you, MERMAID BAR, INC., a vendor licensed under the beverage laws of the State of Florida, through you, your agents, servants, employees or entertainers, to wit: BARBARA GENE PORTER, the Manager/Person in Charge, did maintain a place for lewdness, by allowing female dancers to rub their exposed breasts across the faces and bodies of Special Agents STOOPS and Sgt. HOOPER and by allowing the female dancers to forcefully rub their buttocks and crotch areas into the groin areas of Special Agents STOOPS and Sgt. HOOPER, simulating sexual intercourse, a violation of Section 796.07(2)(a), F.S., within Section 561.29, F.S. These activities in which the dancers allegedly engaged with Stoops and Hooper are commonly referred to, in adult entertainment establishments, as "lap dances." On May 28, 1993, Simone signed a consent agreement acknowledging the violations alleged in the Notice to Show Cause and agreeing to pay a fine of $2,000.00 to settle the matter. DBR accepted and signed the agreement on July 6, 1993. The April 7, 1993, Undercover Operation On April 7, 1993, the Department conducted an undercover operation at the Mermaid in which Special Agent Johnnie Wilson participated. While Wilson was at the bar, he observed from his vantage point a female dancer whose stage name was "Kellie," as well as five or six other female dancers, in exchange for money, perform "lap dances" with patrons of the establishment. 3/ Galbraith and a barmaid were on the premises at the time and neither took any action to try to stop "Kellie" and the other dancers from "lap dancing." No arrests were made as a result of this April 7, 1993, undercover operation. The May 6, 1993, Undercover Operation Special Agent Stoops went to the Mermaid the afternoon of May 6, 1993, as part a follow-up undercover operation conducted by the Department. After he had been there for approximately 15 to 20 minutes, he was approached by one of the dancers working at the establishment that afternoon, Lucia Maria Campos. Campos asked Stoops if he wanted a "lap dance." Stoops responded in the affirmative. Campos thereupon removed her top (but not her bottoms) and proceeded to "lap dance" with a fully clothed Stoops. During the "lap dance," Campos rubbed her breasts against Stoops' chest and grinded her groin and buttocks in the area of his crotch in a provocative manner. Stoops paid Campos for the "lap dance." Stoops observed Campos "lap dance" with another patron during his visit to the Mermaid that afternoon. Although Campos performed her "lap dances" openly, in plain view, neither the barmaid on duty nor anyone else on the premises expressed any disapproval of Campos' actions. The May 12, 1993, Undercover Operation On May 12, 1993, at around 10:00 or 11:00 p.m., three detectives from the Palm Beach County Sheriff's Office working undercover, Jeffrey Andrews, Kevin O'Brien and Ted Smith, entered the Mermaid. The purpose of their visit was to determine if any of the dancers working at the establishment were engaging in lewd behavior. After entering the Mermaid, Andrews and O'Brien sat down next to each other at a table in front of the stage on which the dancers performed. Smith took a seat near the bar. While Andrews was seated at the table, Kerren Flores, a dancer who was working at the Mermaid that evening, came up to him and asked him if he wanted a "lap dance" for $10.00. Flores was wearing a bikini top and G-string bottom. After Andrews accepted her offer, she took off her top. Standing approximately two feet in front of Andrews, she began fondling her breasts with her hands and manipulating, and then licking, her nipples. Next, she leaned over and rubbed her bare breasts against the lower portion of Andrews' face. She then turned around, sat down on Andrews' lap and started to simulate sexual intercourse by grinding her buttocks into his groin area. The "lap dance" lasted the length of one song that was being played by the DJ over the bar's sound system. After it was over, Andrews' paid Flores the $10.00 she had requested for the "dance." Another dancer working at the Mermaid that evening was Laura Chapman. While performing on stage, she removed all of her clothing, fondled and licked her bare breasts and suggestively stroked her vaginal area. After finishing her performance on stage and putting back on her bikini top and G-string bottom, Chapman approached Andrews and inquired if he was interested in a "lap dance." Andrews said he was and, at Chapman's request, the two moved to a different table. Chapman then proceeded to remove her bikini top and performed a "lap dance" with Andrews which was virtually identical to the one Flores had performed with him earlier that evening. Andrews paid Chapman the $10.00 she had asked for to perform the "lap dance." Andrews' colleague, O'Brien, was also propositioned during the undercover operation that evening by one of the bar's dancers. Maija Liisa Cardinaux was the dancer who propositioned him. She was also helping serve drinks that evening. Cardinaux walked up to O'Brien and asked him if he wanted to order a drink. At the same time, she inquired if he wanted a "lap dance." O'Brien expressed an interest in the latter. Cardinaux led O'Brien to another area of the bar and had him sit down on a bar stool. After O'Brien was seated, Cardinaux placed her hands on his shoulders and told him to relax. Cardinaux, who was wearing a bikini top and bottom, then took off her top and started to fondle her breasts and lick her nipples while standing in front of O'Brien. Next, she put her arms around O'Brien and pulled his head into her breasts. She then let go of O'Brien, turned around, sat down on his lap and began to vigorously rub her buttocks and groin area against his crotch. These bumping and grinding movements simulating sexual intercourse lasted approximately one to one and a half minutes. Two other dancers working at the Mermaid that evening during the undercover operation, Angela Ratliffe King and Lisa Berling, gave sexually suggestive performances that were patently offensive, that lacked any serious artistic value and that the average person, applying contemporary community 4/ standards, would find, taken as a whole, appealed to prurient interests. King was initially dressed in a black bra and panties. During the first song that she danced to on stage, she took off her top and started to fondle her breasts. She thereupon turned her back to the audience, slapped and rubbed her buttocks, and began to fondle and stroke her vaginal area. During the second song, she removed her panties and exposed her vaginal area to the audience. She then turned around and, with her back to the audience and her legs a little more than shoulder width apart, bent over, put her arms between her legs and started to pull her buttocks apart, further exposing her vaginal area to the audience. Still bent over with her back to the audience, she began to stroke her vaginal area with her fingers as if she was masturbating. Lisa Berling gave a similar performance, except that, unlike King, she was completely nude throughout her performance and, although she started out on the stage, she concluded her performance on the counter of the bar, within an arm's length of where one of the undercover detectives, Ted Smith, was seated, along with other patrons. Galbraith's wife, Ann Galbraith, was tending bar at the time of Berling's performance and she commented to Smith about the performance upon its conclusion. From her vantage point, Ms. Galbraith was able to see most of the public area of the establishment. Her husband was in the back of the establishment near the DJ booth during most of the approximately one and a half hours that Detectives Andrews, O'Brien and Smith were in the Mermaid. At no time during the detectives' undercover operation did Galbraith, his wife, or anyone else that had been hired to work at the Mermaid do anything to discourage or stop the frequent "lap dancing" or the performances of King and Berling, notwithstanding that these activities were in violation of the Rules that Galbraith had given to each dancer and posted in the dancers' dressing room. Arrests were made as a result of the detectives' May 12, 1993, undercover operation. The action taken by the Palm Beach County Sheriff's Office in the instant case is no different than what it has done in similar cases involving other adult entertainment establishments where there is "lap dancing" or similar activity taking place. Respondent's Liability Although Simone may not have been present on the premises during either the April 7, 1993, May 6, 1993, or May 12, 1993, undercover operations, given the persistent and repeated instances of "lap dancing" and other flagrant acts of indecency engaged in by the dancers working at the Mermaid, the inference is made that Simone either fostered, condoned, or negligently overlooked these acts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department enter a final order finding Respondent liable for the violations alleged in the amended Administrative Action and penalizing Respondent therefor by revoking its alcoholic beverage license, license number 60-00429, Series 4-COP. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of January, 1994. STUART M. LERNER 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 20th day of January, 1994.
