The Issue The issue is whether the City of Gainesville ("City") properly issued an Underage Prohibition Order to Petitioner, Spannk, pursuant to Section 4-53, Gainesville Code of Ordinances.
Findings Of Fact The City is a municipal corporation organized under the laws of the State of Florida. In 2009, the City adopted Chapter 4, Article III of the Gainesville Code of Ordinances, titled "Underage Prohibition in Alcoholic Beverage Establishments," referenced herein as the "Ordinance." Spannk is an alcoholic beverage establishment as defined in section 4-51 of the Ordinance and is located within the city limits of the City. Spannk's address is 15 Southwest 2nd Street, Gainesville, Florida. Section 4-51 of the Ordinance defines "underage drinking incident" as follows: Underage drinking incident means any physical arrest or notice to appear (NTA) issued for possession or consumption of an alcoholic beverage by a person under the age of 21 which results in an adjudication of guilt, finding of guilt with adjudication withheld, waiver of right to contest the violation, plea of no contest including, but not limited to, payment of fine or civil penalty, or entering into an agreement for deferred prosecution. Section 4-51 of the Ordinance defines "underage prohibition order" as "an order issued by the city manager or designee which prohibits an alcoholic beverage establishment as herein defined from admitting patrons under the age of 21 into such establishment during specified times." Section 4-53 of the Ordinance provides that an alcoholic beverage establishment will be issued an underage prohibition order if a certain number of underage drinking incidents have occurred at the establishment during a given calendar quarter. For alcoholic beverage establishments with an aggregate occupancy load of fewer than 201 persons, the number of underage drinking incidents triggering a prohibition order is five or more in a quarter. For establishments with an aggregate occupancy load of more than 201, the number is ten or more in a quarter. The parties have made the following stipulations of fact, which are hereby accepted: The parties stipulate that the Occupancy Load for Spannk is greater than 201 persons, thereby requiring a showing of ten (10) or more underage drinking incidents. Spannk stipulates that based upon the certified copies of the Notices to Appear and individual court dispositions, including Deferred Prosecution Agreements and/or Judgments and Sentence to be offered by the Respondent, that twelve (12) "underage drinking incidents" as defined in section 4- 51, Code of Ordinances, did occur in Spannk during the 4th quarter of 2012. Spannk was served with an Underage Prohibition Order on February 21, 2013, which was entered by Russ Blackburn, City Manager, on February 12, 2013, in accordance with the procedures set forth in section 4- 53, Gainesville Code of Ordinances. The City followed all of the procedural requirements set forth in section 4-53, Gainesville Code of Ordinances. Danny Robinson has been the owner and operator of Spannk since it opened in 2008. In order to eliminate the occurrence of underage drinking incidents, Spannk has instituted the following policies and procedures: Maintains a strict identification policy, which includes: Requesting identification from every customer entering Spannk, in the form of a driver's license, ID card from the DMV, passport, or military ID. Requesting a second form of identification when an out-of-state license is presented. Questioning patrons who appear younger than 21 or who raise suspicion about their birthdays, addresses, and Zodiac signs. Maintains a strict wristband policy, which includes: Using blue wristbands from Domino's pizza to indicate that patrons are at least 21 years old. Using yellow wristbands to indicate that patrons are under the age of 21, or alternatively not giving wristbands to underage patrons and ensuring that the staff knows "No band = no drink." Ensuring that, when door staff places wristbands on entering patrons, such bands are tight enough so that they cannot be easily removed. Maintains a strict entry/re-entry policy, which includes: Questioning patrons entering Spannk who already possess wristbands, and ensuring that they are the wristbands used by Spannk. Prohibiting any patron from bringing into Spannk any type of cup, bottle, or can and requiring all outside drinks to be consumed prior to entering Spannk. Prohibiting under-age patrons who have left Spannk from re-entering the premises. Checking any large purse brought into Spannk by any patron, and prohibiting backpacks from being brought inside Spannk. Provides comprehensive training to all Spannk staff, which includes: Gainesville Police Department Responsible Vender Programs. On-the-job training of new employees by older, more experienced staff. Consistently monitors Spannk premises to prevent underage drinking by: Requiring staff to "roam" the indoor premises to ensure that patrons with alcoholic beverages are wearing wristbands. Requiring staff to check for signs of patrons tampering with or removing wristbands. Requiring staff to periodically check Spannk bathrooms to ensure that underage patrons are not consuming alcohol. Maintains a strict removal policy in the rare event that a patron fails to comply with Spannk policies or engages in underage drinking by: Removing any person of age who gives a drink to an underage patron, and removing the underage patron. Removing any patron who has snuck an outside beverage into Spannk. Ensures diligence and effective communication among staff members while patrons are on the premises by: Requiring front and back-door staff to communicate with each other to ensure that they are aware of the occupancy number. Requiring a staff member who leaves his assigned position to use the restroom during his/her shift to communicate this to the rest of the staff. Prohibiting staff from visiting with friends during work hours. Asking staff to communicate to police if any problems with patrons arise during work hours. On February 21, 2013, the City served Spannk with an Underage Prohibition Order (the "Order"). The Order, dated February 12, 2013, was based on 11 underage drinking incidents that occurred at Spannk during the fourth quarter of 2012. Subsequent to the issuance of the Order, an additional underage drinking incident arose. Spannk was given timely notice of this additional incident on May 7, 2013, and it became part of this case. In its exhibits, the City included documentation for six underage drinking incidents at Spannk other than those to which the parties stipulated. Five of those six incidents occurred outside of the fourth quarter of 2012 and are therefore irrelevant to establishing a violation of section 4-53 of the Ordinance. The sixth additional incident has not been considered because the City did not establish that Spannk was given sufficient notice of the City's intended reliance on it. The stipulated exhibits demonstrated that the City secured deferred prosecutions in 10 of the 12 arrests that GPD officers made for underage drinking incidents at Spannk during the fourth quarter of 2012. One of the arrests resulted in a pre-trial intervention agreement because a post-arrest search of the defendant’s purse revealed that she was in possession of a controlled substance. The twelfth arrest resulted in a plea of nolo contendere and the court’s withholding adjudication and placing the defendant on six months’ probation. Of the 12 arrests made in Spannk during the fourth quarter of 2012, five were instances in which the underage patron gained entry to the bar by presenting false identification. Upon successfully presenting the false ID to the doorman, the patron would be given a blue "over 21" wristband that allowed the purchase of alcoholic beverages in Spannk. Persons under 21 were allowed into the bar, given a yellow “under 21” wristband, and not served alcoholic beverages. Three of the five instances of false ID involved the presentation of valid IDs that belonged to other persons who were over the age of 21. In one of those three instances, the suspect presented the doorman with his older brother’s ID. None of the arrest reports indicates whether or not the arresting GPD officer believed the photo on the ID resembled the suspect. No other evidence was presented as to whether the suspects resembled the photos on the IDs they presented to the Spannk doorman. In two of the five instances of false ID, the underage patrons presented the doorman with forged IDs that indicated they were over 21 and obtained blue wristbands. Neither of the arrest reports expressly states that the suspect appeared to be under 21, but the fact that the officer saw cause to investigate allows for the inference that the suspects did not appear to be of legal drinking age. In each of these five instances, the suspect had been given a blue wristband by the doorman. The arresting officer observed each of the five in possession of an alcoholic beverage. Three of the five told the arresting officer that they had bought drinks from the bar. One of the suspects gave the arresting officer no indication of how she got the alcoholic beverage she was holding. One of the forged ID suspects told the arresting officer that someone else bought the drink he was holding, but that he had earlier bought drinks for his friends because he was wearing a blue wristband and they were not. One of the 12 arrests made in Spannk during the fourth quarter of 2012 involved a patron who told the arresting officer that she had shown the doorman her real ID, which indicated she had just turned 20, but was given a blue wristband anyway. This patron told the arresting officer that she had bought her drink at the bar, and that she had smuggled a bottle of vodka into the bar. Two of the 12 arrests involved underage patrons who were wearing yellow wristbands but were seen holding alcoholic beverages. One of these patrons told the arresting officer that he entered the bar using his real ID, and that his underage friend had handed him the drink when he saw the officer approaching. The second patron who was wearing a yellow wristband and holding a beer told the arresting officer that she had entered the bar using her own ID and had smuggled the beer into the bar in her purse. The remaining four arrests involved idiosyncratic details. One patron told the arresting officer that she worked at Beef O’Brady’s, which used wristbands similar to those used by Spannk, and that she brought a blue wristband into the bar with her and put it on after obtaining admission to Spannk using her own ID and receiving a yellow wristband. She purchased an alcoholic beverage at the bar in Spannk. Another patron told the arresting officer that she used her own ID to get into the bar and received a yellow wristband. She went into the bathroom and found a green wristband. She put it on and was able to purchase a drink at the bar despite the fact that Spannk does not use green wristbands. One of the patrons told the arresting officer she didn’t know how the blue band made it to her wrist and did not know whether the beverage she was holding had alcohol in it. The arrest report does not expressly state the officer’s findings as to the alcoholic content of the beverage. Finally, a GPD officer saw a patron who was wearing a blue wristband and holding a drink but appeared to be under 21. The patron refused to provide identification to the officer, who arrested her. At the police station, the patron was found to be in possession of a controlled substance (Adderall). This was the arrest that resulted in a pre-trial intervention agreement. This was also the only arrest in which the arresting officer expressly stated that the suspect appeared to be younger than 21; however, as stated above, the officers’ investigations of the various patrons permit the inference that the officers did not believe that the patrons looked to be of drinking age. The arrest reports indicate a variety of suspicious behaviors cited by the arresting officers as grounds for suspicion. In some cases, the patron placed the drink on the bar or on a table when he or she saw the GPD officer approaching. In two cases, the patron handed the drink to a friend. Three patrons simply dropped their drinks when they saw the officer. Two of the patrons attempted to conceal their drinks from the officers. None of the arrest reports states that the GPD officer observed an underage person obtaining an alcoholic beverage from an employee of Spannk. There was no indication of how long any of the underage persons had been in possession of the alcoholic beverages. There was no evidence that any employee of Spannk knew that underage patrons were drinking alcohol and failed to act on that knowledge. According to the arrest reports, six of the twelve patrons who were arrested told the arresting officers that they had purchased drinks at the bar. This number included four persons who had obtained blue wristbands under false pretenses, one who brought her own blue wristband into the bar, and one who somehow purchased a drink while wearing a green wristband. The owner of Spannk, Danny Robinson, filed a witness affidavit that stated as follows: I have been in the bar business for 16 years in Gainesville and before that I have worked in the industry in Washington, D.C., Portland, Oregon and St. Thomas for a total of 27 years. It’s pretty safe to say I have extensive experience. A partner and I started Speakeasy in 1997. I worked as the bartender and trained staff. We would attend GPD training classes provided to spot fake IDs and deal with intoxicated people. We would also attend the Fire Safety courses put on by the Fire Marshall. These are the years of training we would pass on to our employees in the capacity of the Door Staff. The responsible vendor class for bartending. Teaching everyone the rules and correct procedures for working in the bar business and what we expected of them representing our establishment. I only hire door staff with experience and a positive attitude with people-— generally older. I do not allow students to work the door. I feel like there is too much temptation to let fellow students in to drink underage. My staff consists of ex-military, firefighters, professionals with day jobs. For example, two hold jobs with the government. One works for TSA and the second one for the VA. These men are all responsible, mature people that I feel very good about having at the front checking ID’s and roaming throughout the establishment looking for infractions. We employ a strict door policy at both Spannk and Speakeasy to avoid any trouble. Only accepting valid driver’s licenses, DMV ID card, military ID and passports. We do not accept foreign ID’s and foreign passports. We don’t know enough about them to spot a fake. I have trained my employees to question people if the picture doesn’t look right and thoroughly examine the ID presented to them. If any questions pop up about it they quiz the person and ask for a second form of ID. We have collected quite a few fake ID’s and real ones not belonging to the person using it. In the past Lt. John Parrish from ABT has stopped by and collected many of them. Create a safer environment for people. We had that open communication with the downtown unit for years. The last year or longer the faces have changed and the communication has been very limited. If someone has been arrested with fake ID or passing a drink back and forth between an underage and a person of age, we do not know what the offense is and without this communication we can’t educate our staff to be on the lookout even more than they already are for these actions. We patrol inside of the club checking for correct bands and are always on the lookout for kids trying to share a drink. If underage drinkers are caught doing so they are removed immediately from the premises and if the person of age provides someone with a drink they are both removed. We show that offender to the front door people so they can’t come back in and wristbands removed. Fake ID’s are becoming increasingly more complex with the age of computers these days. But we still manage to catch them. I honestly feel we do a very good job at keeping the underage people from drinking. I am at the bars working every night and pass my years of experience on to all my employees on what to look for. We have caught kids sneaking by getting their friends drinks. We, just like the police on the street, have an obligation to look out for people committing crimes inside the bar. But people will break these laws even knowing the consequences. We cannot [be] everywhere at all times, but we do cover the space and roam throughout all night looking out for people drinking underage. Paul John Zurich, Spannk’s security manager, does the hiring and firing of all security personnel and has attended multiple GPD responsible vendor educational programs. In his affidavit, Mr. Zurich testified that in doubtful situations, Spannk requires patrons to produce two forms of ID. The doormen check the IDs for marks indicating they are fakes: the ID has no hologram; the ID bends and shows wrinkles; or the dates on the ID “don’t add up.” If a patron’s age seems questionable, the security person will ask the patron to state his Zodiac sign, or his address, or the height given on the ID. The doorman will also ask the patron to provide a signature to compare to the one on the ID card. Mr. Zurich testified that he employs a spotter inside the bar to check for illegal activity, and he requires all staff persons to take turns roaming the premises to observe the activity of the patrons. Sean O’Brien works as a doorman at Spannk on Saturday nights. Mr. O’Brien’s full-time job is with the Transportation Security Administration (“TSA”) at Gainesville Regional Airport. In his witness affidavit, Mr. O’Brien testified that the TSA has specifically trained him in methods of checking for false or fraudulent IDs. Mr. O’Brien stated that he denies entry to persons when he concludes they are presenting false identification, and he denies entry to any person who does not present identification regardless of that person’s apparent age. He removes underage persons who are caught in the bar with alcoholic beverages. Mr. O’Brien affirmed that employees are constantly scanning the bar looking for underage persons who are sneaking drinks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Underage Prohibition Order issued to Spannk be vacated. DONE AND ENTERED this 27th day of August, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 27th day of August, 2013.
Findings Of Fact Respondents currently hold a Series 2APS license, number 45-00254, for Eastside Grocery, which is located at 132 South Highway 33, Groveland, Florida. The current term of the license expires on September 30, 1988. On February 26, 1988, Victoria Solozabal entered Eastside Grocery at about 4:25 p.m. Claude Cruce, a law enforcement investigator employed by Petitioner, entered the store directly behind her. Ms. Solozabal was acting under the direction of Mr. Cruce and another of Petitioner's investigators, Carl Lloyd, in assisting them in the detection of sales of alcoholic beverages to underaged persons. Ms. Solozabal was born on August 23, 1969. Upon entering the store, she carried with her only her driver's license and a small amount of cash for the purchase of a single can of beer. Ms. Solozabal went directly to an electric cooler in the back of the store, selected a chilled can of Budweiser beer, and took it to the checkout counter. With Mr. Cruce directly behind her and Mr. Lloyd only a few feet away watching, Ms. Solozabal placed the beer on the checkout counter and took out a $10 bill while Respondent Sandra Pettingill was ringing up the purchase. Ms. Pettingill demanded 75 cents, and Ms. Solozabal gave her the $10 bill. Ms. Pettingill placed the bill in the cash register and returned the change to Ms. Solozabal. At no time did Ms. Solozabal or any other employee of Eastside Grocery ask Ms. Solozabal her age or for proof of age. As Ms. Solozabal approached the door to leave the store, Mr. Cruce stopped her, demanded her identification, and seized the beer. He and Mr. Lloyd then informed Ms. Pettingill that she had sold an alcoholic beverage to an underaged person.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondents guilty of selling an alcoholic beverage to a person under the age of 21 years and imposing a civil penalty in the amount of $250. DONE and RECOMMENDED this 4th day of August, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 4th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1759 Treatment Accorded Petitioner's Proposed Finding of Facts Adopted. Adopted in substance. Adopted. Rejected as subordinate. 5-6. Adopted. Second 6. Rejected as irrelevant. Adopted. First sentence adopted. Remainder rejected as subordinate. Adopted. Rejected as subordinate. Treatment Accorded Respondents' Proposed Findings of Fact 1-3. Adopted, except any resemblance between Ms. Solozabal and a regular customer of legal age is rejected as irrelevant. 4-5. Rejected as irrelevant. Ms. Pettingill testified that her normal procedure was to check proof of age before ringing up a sale. She also testified that Mr. Cruce asked about the couch drops only after she had taken the $10 bill from Ms. Solozabal. Mr. Cruce's request for cough drops thus had nothing to do with the sale, which had already been made. COPIES FURNISHED: Harry Hooper, Esquire Department of Business Regulation 725 South Bronough Street The Johns Building Tallahassee, Florida 32399-1007 George Kelley, Esquire 368 East Main Street Post Office Box 1132 Apopka, Florida 32703 Van B. Poole Secretary Department of Business Regulation 725 South Bronough Street The Johns Building Tallahassee, Florida 32399-1007 Joseph Sole General Counsel Department of Business Regulation 725 South Bronough Street The Johns Building Tallahassee, Florida 32399-1007 =================================================================
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her sex and by retaliating against her.
Findings Of Fact Respondent is an employer within the meaning of Section 760.02(7), Florida Statutes (2008). As a Florida non-profit corporation, all of Respondent's activities are governed by its bylaws. Petitioner, a white female, has worked for Respondent off and on during the last five years. Most recently, Petitioner began working for Respondent on January 18, 2008, as a part-time food preparation (prep) worker and a part-time waitress in Respondent's restaurant. Petitioner accepted the job because she had recently left a full-time position with another employer due to the distance of that job from her house. As a prep worker, Petitioner earned a set hourly wage. Petitioner's responsibilities included assisting the chef in preparing meals and cleaning up the kitchen. The chef, Tony Mongone, directed Petitioner's kitchen work but he was not her supervisor. As a waitress, Petitioner earned $3.35 per hour plus tips. On Tuesdays and Fridays, Petitioner earned an average of $100 in tips per shift. Petitioner worked between five and six hours on Tuesday evenings and between five and eight hours on Friday evenings when Respondent served sit-down dinners to its members. On these occasions, Respondent's kitchen served an average of 200 dinners in a two-hour period of time. Petitioner also worked when Respondent catered for banquets and other special occasions. Petitioner worked a total of 41.66 hours in January 2008; 81.5 hours in February 2008; 45.13 hours in March 2008; and 71.17 hours in April 2008. She worked 10.32 hours for the first week in May 2008. Over the course of her 15.4 week term of employment, Petitioner averaged 16.23 hours per week. Although it varied according to the event, there were five to eight other servers or waitresses (all females) working along with Petitioner on any given night. There always were eight-to-10 workers in and around the kitchen, including the servers, the chef, one pizza maker, and the kitchen prep person. At all times relevant here, Linda Ferguson was the club manager and Petitioner's direct supervisor. Ms. Ferguson was responsible for day-to-day management of all club activities with the authority to enforce all club policies. Ms. Ferguson also was in charge of all aspects of hiring and terminating employees and managing volunteer personnel. Ms. Ferguson was in the restaurant on most Friday evenings. When Ms. Ferguson was not scheduled to work, the assistant manager, Carolyn Weeks, was on duty. On Petitioner’s first night as the kitchen prep worker, Chef Mongone was drinking from a pitcher of beer. Early in the evening, Chef Mongone made comments about her breasts, telling her they were nice and asking whether they were real. Later that evening, when the staff was cleaning the kitchen, Chef Mongone walked up behind Petitioner and touched her backside. Petitioner immediately turned on Chef Mongone, telling him assertively, "Don't ever do that again! How would you like it if someone did that to your wife?" Chef Mongone just stood there as Petitioner turned and walked away. Petitioner immediately informed Ms. Ferguson about the incident. Ms. Ferguson inquired whether Petitioner wanted her "to take care of it." Petitioner responded that she felt she "had already done so." Ms. Ferguson spoke to Chef Mongone about his drinking on the job and his inappropriate conduct. Chef Mongone responded in an insubordinate way, denying all allegations of improper conduct. Ms. Ferguson also spoke to Mike Mercante, Respondent's President at that time. Ms. Ferguson complained to Mr. Mercante about Chef Mongone's drinking and offensive conduct. In the following weeks, Chef Mongone sometimes raised his voice at Petitioner and she back at him. On days that Petitioner worked as a waitress, Chef Mongone held up Petitioner's food orders, causing delays in service that resulted in reduced tips for Petitioner. The delays in releasing Petitioner's food orders usually occurred after Petitioner and Chef Mongone exchanged angry words. On or about February 11, 2008, Petitioner was working as a waitress. When she placed her first food order, Chef Mongone began yelling at her for not putting her name and table number on the ticket. When Petitioner reached to retrieve the ticket, Chef Mongone told her not to touch it. At that point, Petitioner started yelling at Chef Mongone. Petitioner admits her response was not nice and describes herself as having "lost it." When Petitioner returned to the kitchen to get her next order, she overheard Chef Mongone telling the kitchen staff that she was stupid because she could not remember to put her name on a ticket. Once again Petitioner's temper got the best of her. Petitioner called Chef Mongone a drunk, triggering another argument with Chef Mongone. Despite the hard feelings between Chef Mongone and Petitioner, Chef Mongone made additional inappropriate remarks to Petitioner. On one occasion, Chef Mongone observed Petitioner wiping her hand on the seat of her pants. Chef Mongone then stated that he "would like to do that, too." On or about February 15, 2008, Petitioner was scheduled to work first as a prep worker and later as a waitress. While she was in the kitchen, she shared a bag of Valentine candy with the staff. When only one piece of candy was left, Petitioner asked Chef Mongone if he wanted it. Chef Mongone replied that he did not want the candy. However, when Petitioner put the candy in her mouth, Chef Mongone made some comment about the way Petitioner sucked the candy. Chef Mongone immediately stated that he did not mean for his comment to come out like it did. Nevertheless, Petitioner was offended and responded in a negative way. Sometime after February 15, 2008, Petitioner wrote a letter to the members of Respondent's Executive Board. The letter details Petitioner conflict with Chef Mongone. Petitioner gave the letter to Ms. Ferguson, who gave it to Mr. Mercante. February 15, 2008, was Petitioner's last day as a kitchen prep worker. From that time forward, Ms. Ferguson scheduled Petitioner to work only as a waitress in order to reduce the time Petitioner would have to spend in the kitchen. On February 20, 2008, Respondent's Executive Board had a meeting. At the meeting, the board members discussed Petitioner's letter. Chef Mongone attended the meeting and denied all allegations. At the conclusion of the meeting, the Executive Board directed one of its members to draft a letter of reprimand for Chef Mongone. In an internal memorandum dated February 22, 2008, Respondent's Executive Board advised Chef Mongone that he had been warned about his rule infractions and general behavior for the past recent months. According to the memorandum, Chef Mongone would receive no further warnings and any future infractions of club rules or Florida law would result in disciplinary action up to and including immediate termination of employment. Respondent does not have a written policy prohibiting sexual harassment. It does have a rule against drinking on duty. On or about May 6, 2008, Petitioner once again became upset at work because the kitchen was crowded and Chef Mongone yelled at her. Petitioner called her husband to complain that Chef Mongone had cursed at her, saying, "Bitch, get the f--- out of the kitchen.” Petitioner also alleged that Chef Mongone was holding up her food orders. When Petitioner's husband arrived at the restaurant, he met Petitioner, Chef Mongone, Ms. Weeks (Assistant Manager), and Lou Barletta (Respondent's Vice President) in the restaurant's parking lot. Petitioner's husband told Chef Mongone that Petitioner would show him respect if Chef Mongone demonstrated respect for Petitioner. The discussion in the parking lot was civil and ended with Chef Mongone and Petitioner's husband shaking hands. After the meeting, Chef Mongone made it clear that he could no longer work with Petitioner and that one of them had to go. Petitioner did not want to go back into the kitchen after the meeting. Ms. Weeks suggested that Petitioner go home until everything cooled down. Petitioner agreed and left the premises. Petitioner was scheduled to work the following Saturday. Before Petitioner reported to work, Ms. Ferguson talked to Mr. Mercante. After that conversation, Ms. Ferguson told Petitioner that she should not come back to work until Ms. Ferguson could replace Chef Mongone. Ms. Ferguson was actively looking for a new chef. After locating a replacement for Chef Mongone, Mr. Mercante would not approve the termination of Chef Mongone's employment. At the end of June 2008, Respondent did not renew Ms. Ferguson's contract. Ms. Weeks replaced Ms. Ferguson as Respondent's General Manager. Due to financial difficulties, Respondent did not hire an assistant manager when Ms. Weeks became the General Manager. Respondent also eliminated all table-busing positions, using volunteers to clear the tables. Respondent has not called anyone back to work after laying them off. Like Ms. Ferguson, Ms. Weeks had problems with Chef Mongone. She eventually hired a new chef and fired Chef Mongone due to his alcohol consumption at work. Petitioner initially drew unemployment compensation from Respondent's place of business. Except for a couple of days of work, Petitioner has been unemployed since May 6, 2008. She is still drawing unemployment compensation from her most recent employer. Petitioner acknowledges that the economy is the reason she has been unable to obtain a job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 25th day of June, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2009. COPIES FURNISHED: David Glasser, Esquire Glasser & Handel 116 Orange Avenue Daytona Beach, Florida 32114 Mary Nelson Morgan, Esquire Cole, Stone, Stoudemire, and Morgan P.A. 201 North Hogan Street Suite 200 Jacksonville, Florida 32202 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether the City of Gainesville ("City") properly issued an Underage Prohibition Order to Petitioner, Clark DP Investments, Inc., d/b/a The Bank Bar and Lounge ("The Bank") pursuant to section 4-53, Gainesville Code of Ordinances.
Findings Of Fact The City is a municipal corporation organized under the laws of the State of Florida. In 2009, the City adopted Chapter 4, Article III of the Gainesville Code of Ordinances, titled "Underage Prohibition in Alcoholic Beverage Establishments," referenced herein as the "Ordinance." The Bank is an alcoholic beverage establishment as defined in section 4-51 of the Ordinance and is located within the city limits of the City. The Bank's address is 22 West University Avenue, Gainesville, Florida. Section 4-51 of the Ordinance defines "underage drinking incident" as follows: Underage drinking incident means any physical arrest or notice to appear (NTA) issued for possession or consumption of an alcoholic beverage by a person under the age of 21 which results in an adjudication of guilt, finding of guilt with adjudication withheld, waiver of right to contest the violation, plea of no contest including, but not limited to, payment of fine or civil penalty, or entering into an agreement for deferred prosecution. Section 4-51 of the Ordinance defines "underage prohibition order" as "an order issued by the city manager or designee which prohibits an alcoholic beverage establishment as herein defined from admitting patrons under the age of 21 into such establishment during specified times." Section 4-53 of the Ordinance provides that an alcoholic beverage establishment will be issued an underage prohibition order if a certain number of underage drinking incidents have occurred at the establishment during a given calendar quarter. For alcoholic beverage establishments with an aggregate occupancy load of fewer than 201 persons, the number of underage drinking incidents triggering a prohibition order is five or more in a quarter. For establishments with an aggregate occupancy load of more than 201, the number is ten or more in a quarter. The Bank has an aggregate occupancy load of 207 persons. On September 27, 2012, the City served The Bank with an Underage Prohibition Order (the "Order"). The Order, dated September 25, 2012, was based on 12 underage drinking incidents that occurred at The Bank during the third quarter of 2012. Subsequent to the issuance of the Order, an additional three underage drinking incidents arose. The Bank was given timely notice of these additional incidents on November 21, 2012, and they became part of this case. At the hearing, the City demonstrated that GPD officers made 15 arrests for underage drinking incidents at The Bank during the third quarter of 2012, and that it secured deferred prosecutions or adjudications in all 15 cases. Five GPD officers and a sergeant testified at the hearing as to the particulars of these arrests and as to GPD's general practices in policing underage drinking in downtown Gainesville. The GPD has a specially assigned unit to patrol a downtown area consisting of the square formed by Northwest 3rd Avenue, Southwest 3rd Avenue, Southeast 3rd Street, and Northeast 3rd Street. Officer Justin Torres estimated that there are between 20 and 30 alcoholic beverage establishments in the roughly one-square-mile downtown area. The downtown unit performs patrols for underage drinking in bars on Thursdays, Fridays and Saturdays from 4 p.m. until 4 a.m., and every other Wednesday from 7 p.m. until 3 a.m. Between three and four officers from the unit perform these patrols on a given night. The officers are in uniform as they make the rounds of the bars in the downtown area. They are given no particular assignment as to which bars they enter or what time they should go to a particular establishment. They try to cover all of the downtown bars without emphasizing any particular one. Officer Marquitta Brown testified that she would enter The Bank twice a night at most. None of the testifying officers was given any special training by GPD as to spotting underage drinkers or fake identification. They learned to scrutinize IDs through their general experience on the police force and especially by working with officers who were experienced members of the downtown unit.1/ Officers volunteer to serve in the downtown unit, and rotate off the unit after serving about one year. The testifying officers all stated that, when looking for underage drinking, they look for suspicious behavior rather than youthful appearance. They do not simply walk into a bar and start checking patrons' IDs. The typical scenario involves the officer walking through the bar. The suspect sees the uniformed officer, and then puts down his drink and walks away from it, or hands the drink to someone standing near him, or simply drops the drink into a trash can. At this point, the officer requires the suspect to produce identification and makes an arrest if the ID proves insufficient. Of the 15 arrests made in The Bank during the third quarter of 2012, nine were instances in which the underage patron gained entry to the bar by presenting false identification. Upon successfully presenting the false ID to the doorman, the patron would be given an "over 21" wristband that allowed the purchase of alcoholic beverages in The Bank. Persons under 21 were allowed into the bar but were not given a wristband or served alcoholic beverages. Eight of the nine instances of false ID involved the presentation of valid driver's licenses that belonged to other persons who were over the age of 21. In two of the cases, the arresting GPD officer testified that the photo on the driver's license did not look like the suspect. In one case, the officer testified that the false ID did look like the suspect. The record contains no indication as to the resemblance between the suspect and the false identification in the other five instances of the suspect's using another person's valid driver's license.2/ The ninth instance of false ID involved the use of a forged Ohio driver's license bearing the actual photo and identifying information of the underage suspect, but with a false date of birth. The arresting officer, Aaron Steman, testified that he identified the license as a forgery because it was very thick, which indicated to Officer Steman that the card stock used to create the license was thicker than that used by the state of Ohio. Officer Steman testified that he had received no special training in identifying driver's licenses from Ohio, but that his experience had made him familiar with the licenses from approximately 25 states.3/ Three of the 15 arrests involved an underage patron who was wearing an "over 21" wristband. The remaining three involved an underage patron who was not wearing a wristband but was in possession of an alcoholic beverage. The hearsay statements of the underage persons to the officers indicated that in each instance they procured either the wristbands or the drinks from persons over 21 who had obtained them lawfully.4/ None of the arresting officers observed an underage person obtaining an alcoholic beverage from an employee of The Bank. The testifying officers were unable to state how long any of the underage persons had been in possession of the alcoholic beverages. There was no evidence that any employee of The Bank knew that underage patrons were drinking alcohol and failed to act on that knowledge. The arresting officers testified that they had made arrests for underage drinking at other bars in downtown Gainesville. Officer Brown testified that on the great majority of nights she makes at least one arrest in a downtown bar. The officers also testified that there were numerous occasions when they walked on patrol through The Bank without making an arrest. At the time of the hearing, there were no administrative actions filed against The Bank's alcoholic beverage license by the Division of Alcoholic Beverages and Tobacco ("DABT"). Lieutenant Dean Plescia of DABT testified that in his experience, Mr. Clark of The Bank "was doing a pretty decent job" in checking IDs and keeping underage persons from obtaining alcoholic beverages in his establishment. Mr. Clark testified as to The Bank's efforts to deter underage drinking on its premises. Mr. Clark testified that he became the owner of The Bank three years ago but has worked there since it opened in 2001. He had extensive history in the bar and restaurant business prior to joining The Bank. Mr. Clark has done "everything that you can do within the industry." He has been a doorman, a bartender, and a bar manager. He is present at The Bank whenever it is open for business. Mr. Clark handpicks and trains every doorman who works at The Bank. Mr. Clark requires his doormen to be at least 21 years of age. He has hired professionals as doormen, including a former state attorney. Mr. Clark requires prospective doormen to provide job histories and references, and he personally checks the references. New doormen are first put to work roaming the bar looking for underage drinkers, and are only put on the door to check IDs after they are thoroughly oriented. Mr. Clark makes it clear to his doormen and serving staff that they will be fired if they are found to have admitted an underage patron without properly checking for ID or to have served alcoholic beverages to a patron who is underage. Mr. Clark testified that he has fired employees for violating this policy. Mr. Clark trains and instructs his doormen to require photo ID for all patrons. He further instructs the doormen regarding measures to ensure that the ID is valid and belongs to the person who presented it. Mr. Clark's methods are similar to those employed by the GPD officers who testified at the hearing, and are similarly based on years of experience in checking IDs. For example, Mr. Clark has instructed his doormen to check whether the driver's license number matches the patron's birth date. The doorman will match the patron's height and eye color against the information on the driver's license, and examine the photo for features matching those of the patron presenting the card.5/ The Bank has cameras that monitor the door staff and patrons seeking admission. Mr. Clark periodically employs "mystery shoppers" to test the doormen. The mystery shopper will ask the doorman for an "over 21" wristband without checking for ID in exchange for a bribe or as a favor. Mr. Clark testified that to his knowledge the mystery shoppers have never succeeded in gaining entry without proper ID. Mr. Clark testified that even where a patron provides what appears to be a valid ID, his doormen are instructed to inquire further if they have doubts about the patron's age. The doorman will ask the patron to give his birth date and address. If the patron's answer does not match the information on the driver's license, "that's a huge red flag immediately." In these doubtful situations, the doormen will also ask for a second form of ID, preferably one with a photograph. Mr. Clark testified that The Bank has recently stopped admitting international students based on international visas or international passports because of their lack of reliability. GPD officers have informed him that he should require a United States driver's license, military ID, or passport, and he has instituted this practice at The Bank. When a doorman is presented with false ID, he hands it back to the patron and denies him admittance.6/ Mr. Clark testified that on rare occasions he has allowed an underage patron to enter without a wristband if he shows legitimate identification after trying to pass with a false ID. However, the standard instruction to the doormen is to deny admittance on the principle that an underage person who tries to obtain a wristband with a fake ID is likely to try to get alcoholic drinks once he is inside the bar. Mr. Clark assigns as many as seven doormen to roam through the bar and make sure that no patrons without wristbands are in possession of alcoholic beverages. If an underage patron is found with an alcoholic drink, the patron is immediately ejected from the premises. The Bank uses tamper resistant plastic wristbands and changes the color and style of the bands frequently to avoid counterfeits. Mr. Clark purchases the wristbands from a non- local source to decrease the likelihood of duplicating the wristbands of another bar. The wristbands are rotated such that the same one is not used twice in a two-week period. The Bank's staff checks wristbands to make sure that they are not frayed or tampered with, which might indicate that an underage patron obtained the band from a person of lawful age. Mr. Clark reasonably believes that confusion is avoided by The Bank's practice of giving no wristband at all to patrons who are under 21, rather than relying on a system of color-coded wristbands for patrons who are over and under 21. Once a person leaves The Bank, he is not allowed re-entry. Mr. Clark believes that this practice lessens the chances of wristband sharing. The Bank has participated in the responsible hospitality vendor program when it has been offered by GPD. Mr. Clark testified that he and his staff have attended these training sessions on multiple occasions. Mr. Clark testified that he does not believe there are any policies or devices7/ which could improve The Bank’s efforts to identify and deter underage drinkers. He is aware of the methods employed by The Bank's competitors, and opined that none of them is doing more than The Bank to combat underage drinking and that "there are multiple places that are doing a lot less." Mr. Clark testified that he personally examined each of the false identification cards that had been used to obtain entry into The Bank. Mr. Clark believed that in each case the patron closely resembled the photo on the card. This testimony contradicts the GPD officers' testimony that two of the photo IDs did not bear a strong resemblance to the underage drinker. There is no central filing or tracking system for IDs that are confiscated by the GPD. None of the testifying officers had any idea how to recover the IDs or even who might be their custodian. The actual fake IDs were not introduced into evidence, making it impossible to enter a finding as to the diligence of The Bank's doormen regarding the two IDs in question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Underage Prohibition Order issued to The Bank be vacated. DONE AND ENTERED this 28th day of March, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2013.
The Issue The issues in these cases are whether Respondent is guilty of serving alcoholic beverages to minors and, if so, what penalty is appropriate.
Findings Of Fact Respondent holds license number 58-01997, series 2-COP, for the retail sale of alcoholic beverages. The licensed premises were located at 536 West Church Street, Orlando, Florida. Respondent abandoned the premises at the end of August, 1989. The bar owned and operated by Respondent is no longer in operation, and the license is no longer active. On at least three occasions prior to the incident in question, one or more representatives of Petitioner had warned Lester Thomas, the sole shareholder and officer of Respondent, that he or his company's employees were serving alcoholic beverages to underage persons. On one of these occasions, Mr. Thomas complained, "Every time you come around here, there are problems. You catch me." At about 11:15 p.m. on August 5, 1989, two representatives of Petitioner entered the Negril Cove bar and observed Mary Ann Carmody, age 16 years, consuming an alcoholic beverage that a companion had purchased from Respondent. At all material times on that evening, Mr. Thomas himself was tending the bar at Negril Cove. At no time was Ms. Carmody asked for any identification. Under the circumstances, Mr. Thomas permitted Ms. Carmody to consume the alcoholic beverage on the premises.
Recommendation Based on the foregoing, it is hereby recommended that the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking the license of Respondent. RECOMMENDED this 23rd day of April, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1990. COPIES FURNISHED: Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Joseph A. Sole, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Thomas A. Klein Assistant General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Jerry S. Luxenburg 1214 East Robinson Street Orlando, FL 32801
Findings Of Fact The Hearing Officer finds the following facts: Respondent is the holder of Beverage License No. 26-957,2-COP and the licensed premises encompass the bar known as "The Harem". Sergeant Thomas R. Genest, a Jacksonville Police Officer, went in The Harem on November 1, 1974. Upon entering he saw Georgiann Smith and Annie Pearl Williams, both of whom worked as topless dancers in The Harem and were at that time dressed as topless dancers. At the time Sergeant Genest entered the bar Smith was dancing topless at the bar between the legs of a male patron simulating intercourse with the patron. Williams was similarly dancing topless between the legs of a male patron, simulating intercourse and allowing the patron to place his hands on her buttocks and thighs. Sergeant Genest had no independent recollection of Virginia Lou Roberts or any acts in which she might have been engaged on November 1, 1974, in The Harem. On March 6, 1975, Detective H. R. Hall of the Jacksonville Sheriff's Office Vice Squad, was working The Harem undercover. While in The Harem he saw Maria Jenkins, Essie Mae Parks and Gaynell Moore, who were dressed as topless dancers and working as topless dancers in the bar. Jenkins was dancing topless between the legs of a male patron and rubbing her body against him as she danced. Parks was dancing topless between the legs of a male patron, who had his hands on her buttocks as she rubbed her vagina against his mid-section. Moore was dancing topless between the legs of a male patron who had his hands on her buttocks as she rubbed her vagina against his mid-section. At all times pertinent to this proceeding Georgiann Smith, Annie Pearl Williams, Maria Jenkins, Essie May Parks and Gaynell Moore were agents, servants or employees of the licensee.
The Issue Whether the violations alleged in the Administrative Action, as amended, were committed? If so, should Respondent be held responsible for these violations? If so, what penalty should be imposed against Respondent?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, the holder of alcoholic beverage license number 60-00602, Series 4-COP issued by the Department. The licensed premises is Club Diamonds (Club), an adult entertainment establishment located in West Palm Beach (at 1000 North Congress Avenue) that features scantily clad female dancers.1 Patrons of the Club are served in two main areas: at the bar and at tables that are located between the bar and the stage area where the dancers perform to recorded music played by a DJ stationed in an elevated booth. On the north and west ends of the Club are partitioned areas with couches (Partitioned Areas). After receiving an anonymous complaint concerning the Club, the Department began an undercover operation at the establishment in which Special Agent John Murray and others participated. In his undercover capacity, Special Agent Murray visited the Club on three occasions during its normal business hours when there were other patrons, as well as Club employees (including dancers, at least one bartender/barmaid, a waitress, and a DJ) present. These visits were made on May 27, 1998, June 2, 1998, and June 6, 1998. On each visit, Special Agent Murray was approached by a dancer at the Club ("Faith" on May 27, "Riley" on June 2, and "Memphis" on June 6), who, after ascertaining that he was interested in a "private dance" for $20.00, escorted him to a couch in one of the Partitioned Areas on the north and west ends of the Club, sat him down on the couch, and spread his legs apart. The dancer then positioned herself between Special Agent Murray's legs and took off her top. Wearing only a thong-style bikini (G-string) bottom (which left her buttocks exposed), the dancer proceeded to perform for a fully clothed Special Agent Murray what is commonly referred to as a "lap dance." During the course of the "dance," the dancer, to the rhythm of the music, provocatively rubbed her bare breasts against Special Agent Murray's face and (while on his lap) rhythmically grinded her (covered) crotch area against his in a manner designed to simulate sexual intercourse and to sexually arouse Special Agent Murray. The "lap dance" lasted approximately the length of a song being played by the DJ over the Club's sound system. Following the conclusion of the "lap dance," Special Agent Murray paid the dancer $20.00. While at the Club, Special Agent Murray witnessed other patrons receive "lap dances" from the Club's dancers. Although the "lap dances" that Special Agent Murray and other patrons of the Club received were given in an area of the Club with "subdued" lighting (in contrast to the stage area, which was brightly lit), there was sufficient lighting for others in the Club at the time, including other employees, to observe these "lap dances," which were performed in an open and notorious manner in plain view. At no time did any employee of the Club make an effort to stop these "lap dances." Indeed, the DJ made comments to the patrons over the sound system encouraging them to purchase "private dances" from the Club's dancers. Although Respondent's officers and shareholders may not have been present on the premises during the May 27, 1998, June 2, 1998, and June 6, 1998, undercover operations, given the persistent and repeated instances of "lap dancing" engaged in by the dancers working at the Club, the inference is made that Respondent either fostered, condoned, or negligently overlooked these flagrant acts of indecency, which were patently offensive, lacked any serious artistic value and that the average person, applying contemporary community standards, would find, taken as a whole, appealed to prurient interests. On June 9, 1998, Special Agent Murray returned to the Club. On this occasion, however, he identified himself as a Special Agent for the Division. After doing so, he provided the Club's management with a written notice of the Department's intention to file administrative charges against Respondent based upon the conduct he had observed during his previous three visits to the Club. At no time prior to this June 9, 1998, visit had Special Agent Murray informed the Club's management that the Department had any concerns regarding activities taking place at the Club. Administrative charges were filed against Respondent on June 16, 1998. In September of 1998, Respondent hired a new general manager, Jorge Courts, to run the Club. Mr. Courts has taken measures reasonably calculated to prevent the reoccurrence of the inappropriate conduct that Special Agent Murray observed on his May 27, 1998, June 2, 1998, and June 6, 1998, visits to the Club.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Respondent liable for the violations alleged in the Administrative Action, as amended, and penalizing Respondent therefor by imposing an administrative fine in the amount of $1,000.00. DONE AND ORDERED this 16th day of March, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 16th day of March, 1999.
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. 16-17678, Series 2 APS. The license authorizes Respondent to sell packaged beer and wine at the licensed premises, which is located at 2088-90 North, University Drive, Sunrise, Florida. Mr. Danastor is the owner of Triunfo Food Market, a relatively small store. He has been licensed to sell at that store for approximately two years. Mr. Danastor has a personal and business rule to ask for identification before selling alcohol. On December 7, 2007, Petitioner performed an undercover random compliance check of Respondent's store while checking 15 other locations to see if the various stores were selling alcoholic beverages to underage patrons. Investigative Aide #0057, acted as Petitioner's underage operative/investigative aide on December 7, 2007. The Investigative Aide #0057, who was born on March 28, 1988, was an 18-year-old female, at the time of the incident. Investigative Aide #0057 entered Triunfo Food Market, Inc., walked straight to the beer cooler and took out a six-pack of Guiness Stout beer. She then walked to the register to purchase the beer. No other customers were in the store at the time. Mr. Danastor assisted Investigative Aide #0057 with her purchase of beer. The aide placed the six-pack of beer on the counter and handed Mr. Danastor the money to pay for it. Mr. Danastor accepted the money, selling the aide the beer. Mr. Danastor did not ask the aide's age or check her identification. Mr. Danastor placed the beer in the bag and gave it to the aide. After the purchase, the Investigative Aide exited the store and gave the six-pack of beer to Petitioner's agent, who had witnessed the transaction in the store from outside. Petitioner's agents entered the store and spoke with Mr. Danastor. The agents informed Mr. Danastor of the underage sale and provided him a Notice to Appear. Mr. Danastor told the agents, "I am sorry. I didn't know the purchase was alcohol."
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 $1,000.00 fine. DONE AND ENTERED this 2nd day of April, 2008, 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 2nd day of April, 2008.
The Issue Whether Petitioner, Palm Beach County School Board (Petitioner or School Board), has just cause to terminate or otherwise discipline Respondent, Rayburn White’s, employment based on the conduct alleged in the “Petition” dated January 15, 2009, and filed with DOAH January 20, 2009. Also at issue is the discipline, if any, to be imposed.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Palm Beach County, Florida Petitioner has entered into individual contracts with its employees. At all times relevant to this proceeding, Petitioner employed Respondent as an art teacher. The record is silent as to whether he has a continuing contract or a professional services contract. Prior to his reassignment after his arrest in 2008, Respondent’s assigned school was Acreage Pines Elementary School (Acreage Pines). Respondent has been employed by Petitioner since October 17, 1987. Respondent’s job performance has been satisfactory or above during his tenure with Petitioner. Petitioner and the teacher’s union have entered into a collective bargaining agreement (CBA). Petitioner has adopted rules and policies that control the activities of its teaching professionals. Respondent is subject to the provisions of the CBA, rules adopted by Petitioner, rules of the State Board of Education, and duly-enacted statutes. Article II, Section M(6) of the CBA pertains to progressive discipline and provides as follows: (6) Where just cause warrants such disciplinary action(s) and in keeping with the provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Section 1012.22(1)(f), Florida Statutes, provides that a district school board has the following powers: (f) Suspension, dismissal, and return to annual contract status.--The district school board shall suspend, dismiss, or return to annual contract members of the instructional staff and other school employees; however, no administrative assistant, supervisor, principal, teacher, or other member of the instructional staff may be discharged, removed, or returned to annual contract except as provided in this chapter. Section 1012.27(5), Florida Statutes, provides that a school superintendent has the following powers: (5) SUSPENSION AND DISMISSAL.--Suspend members of the instructional staff and other school employees during emergencies for a period extending to and including the day of the next regular or special meeting of the district school board and notify the district school board immediately of such suspension. When authorized to do so, serve notice on the suspended member of the instructional staff of charges made against him or her and of the date of hearing. Recommend employees for dismissal under the terms prescribed herein. Florida Administrative Code Rule 6B-1.001 sets forth the Code of Ethics of the Education Profession in Florida. Subsections (2) and (3) thereof provide as follows: The educator’s primary professional concern will always be for the student and for the development of the student’s potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity. Aware of the importance of maintaining the respect and confidence of one’s colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. School Board Policy 6Gx50-1.013(1) requires School Board employees to “. . . carry out their assigned duties in accordance with federal laws, rules, state statutes, state board of education rules, school board policy, superintendent’s administrative directives and local school and area rules.” THE 1994 INCIDENT On or about June 27, 1994, Respondent entered a plea of guilty to the following charges brought in the United States District Court for the Northern District of Mississippi: Interference with Government Employee, Disorderly Conduct, and Reckless Driving. A U.S. Magistrate adjudicated Respondent guilty of all three charges, imposed court costs, and placed him on probation for one year with the following special condition of probation: “Defendant shall not visit any area of the Tennessee Tombigbee Waterway while on probation supervision.” On March 21, 1995, the Florida Education Practices Commission (EPC) filed an Administrative Complaint against Respondent that included the following factual allegations in paragraphs 3, 4, and 5: On or about June 18, 1994, Respondent was observed masturbating in his car. When approached by an undercover federal office, Respondent fled the scene and was later apprehended. Respondent was arrested in the U.S. Northern District of Mississippi and charged with Interference with Government Employees, Disorderly Conduct and Reckless Driving. On or about June 27, 1994, Respondent plead guilty to all three charges and the Court adjudicated him to be guilty as charged. Respondent was sentenced to serve one year probation, not return to the Tennessee Tombigbee Waterway and pay a $400 fine and court costs. Thereafter Respondent and the EPC entered into a Settlement Agreement which included the following in paragraphs 3 and 4: The Respondent elects not to contest the allegations set forth in the Petitioner’s Administrative Complaint, which are incorporated herein by reference. The Respondent agrees to accept a letter of reprimand for the conduct described in the Administrative Complaint, a copy of which shall be placed in his certification file with the Department of Education, and a copy of which shall be placed in his personnel file with the Palm Beach County School Board. The Settlement Agreement also includes the following in paragraphs 6 and 7: The Respondent agrees that within thirty [30] days of entry of the Final Order herein he shall provide the Education Practices Commission [EPC] written verification from a professional approved by the Recovery Network Program that he poses no threat to the safety or well-being of students and that he is able to perform the responsibilities of an educator. All expenses incurred in connection with providing this verification shall be borne by the Respondent. The Respondent agrees that he shall be placed on probation for a period of two [2] years . . . The Settlement Agreement was approved by Final Order issued by the EPC on September 22, 1995. Respondent served his period of probation. Respondent did not admit the alleged facts that underpin the EPC’s Administrative Complaint.1 THE 2008 INCIDENT Okeeheelee Park (the park) is located in suburban Palm Beach County. The park’s various recreational amenities include walking trails. The park also has restroom facilities at multiple locations. Detective Van Garner of the Palm Beach County Sheriff’s Office and his partner, Detective Peter Lazar, were assigned to conduct undercover operations in the park on July 21, 2008. Their assignment included the apprehension of people engaging in illegal sexual acts in the park. This assignment was in response to citizen complaints about such activity in the park. Both officers were in civilian dress. Detective Garner wore a tee shirt and short pants. On July 21, 2008, Respondent was exercising in the park by walking to lose weight. Because of medical problems, Respondent needed to lose weight. To work up a good sweat, Respondent wore a one-piece wet suit that covered his torso, but not his arms or his legs. The wet suit had a front zipper, which zipped in a downward, diagonal motion from his neck area to his left thigh area. Respondent wore a shirt and a pair of walking shorts over the wet suit. During that summer, Respondent typically walked from noon to 4:00 p.m. Respondent attracted the attention of Detective Garner on the afternoon of July 21, 2008, because he saw him go into more bathrooms in the park than “normal.”2 At approximately 3:00 p.m. on July 21, 2008, Respondent had been walking for three hours. He went to the area of a bathroom at the top of a hill near a pavilion where there was a cool breeze. Detective Garner pulled up in a truck, got out, and went inside the bathroom from the door on the opposite side of the building from where Respondent was standing.3 Almost immediately thereafter, while Detective Garner was standing at a urinal, Respondent entered the bathroom, walked past Detective Garner, and went to a handicapped stall. Respondent left the door to the handicapped stall ajar. Detective Garner and Respondent were the only two people in the restroom. Detective Garner testified that sometimes a man who is in a restroom for sexual activity will do things to attract the attention of other patrons of the facility. Respondent did not make any hand signal, say anything, or do anything to attract the attention of Detective Garner other than leaving the door to the stall ajar. Respondent did nothing in the restroom that would have attracted Detective Garner’s attention had Detective Garner not been a law enforcement officer. Respondent stood in the handicapped stall in the proper stance to urinate. His feet faced the toilet and his body was turned so that one looking into the stall from the door would have seen his back and side, but not his front. Detective Garner became suspicious because he did not hear a stream of urine coming from the stall. There was a conflict in the evidence as to what Respondent was doing in the stall. Respondent testified that he had unzipped the wet suit so he could urinate. Respondent testified that with one hand he was holding up his shorts and with the other he was trying to prevent the wet suit from becoming completely unzipped. Respondent testified that it is very difficult to get the wet suit zipper started once it becomes completely unzipped. According to Respondent, when Detective Garner approached the stall, Respondent was removing his penis from the wet suit in order to urinate. Detective Garner testified that when he approached the stall, he saw Respondent move his hands back and forth below the level of his waist in an activity Detective Garner believed could only have been masturbation. Detective Garner could not see Respondent’s genital area until Respondent turned toward Detective Garner after Respondent sensed Detective Garner’s presence. Detective Garner testified that he saw Respondent’s erect penis when Respondent turned. In resolving the conflicting evidence, the undersigned finds that Petitioner failed to establish by a preponderance of the evidence that Respondent masturbated in the handicapped stall of the park’s bathroom on July 21, 2008.4 Petitioner also failed to establish by a preponderance of the evidence that Respondent was attempting to solicit Detective Garner or anyone else for sex. When Respondent turned towards him, Detective Garner pulled out his badge and identified himself as a deputy sheriff. Respondent immediately began to put his penis back in the wet suit and his short pants. Within 20-to-30 seconds of that identification, Respondent had accomplished that purpose and started to exit the stall. In leaving the stall, Respondent pushed Detective Garner aside. Detective Garner pushed back. Before Respondent left the bathroom, there was a brief scuffle between Detective Garner and the Respondent consisting of Detective Garner trying to restrain Respondent and Respondent attempting to exit the bathroom. No blows were thrown during the scuffle. When he left the restroom, Respondent walked down a hill away from the restroom and Detective Garner. Detective Garner walked in the opposite direction to retrieve his firearm from his vehicle. While walking to his vehicle, Detective Garner called Detective Lazar on a cell phone and requested that Detective Lazar come to the scene to assist him. As Detective Lazar was heading to the scene, he asked a uniformed officer to follow him to the scene. Shortly thereafter, Detective Lazar and the uniformed officer arrived on the scene. Respondent promptly complied with their orders. Respondent was charged with Exposing Sexual Organs in violation of Section 800.03, Florida Statutes; Resisting Arrest Without Violence in violation of Section 843.02, Florida Statutes; and Loitering in Public Restroom in violation of a county ordinance. Respondent entered into a Deferred Prosecution Agreement in resolution of the criminal charges. Respondent successfully completed the Deferred Prosecution Agreement, which included undergoing supervision, paying the costs associated with the supervision, completion of the Prostitution Impact Prevention Education School, undergoing HIV/STD test, provision of a DNA sample, and no contact with adult establishments. Respondent timely self-reported his arrest as required by School Board policy. The School Board’s Department of Employee Relations conducted an investigation into Respondent’s employment history, his background, and the events that culminated in his arrest on July 21, 2008. The results of the investigation were presented to the School Board’s Employee Investigative Committee (EIC), which makes non-binding recommendations to the Superintendent of Schools. The EIC voted to substantiate the charges against Respondent and recommended to the School Superintendent that Respondent’s employment be suspended for 20 days and that Respondent be transferred to another school. Dr. Johnson made the decision that Respondent’s employment should be terminated. When he made that recommendation, Dr. Johnson thought that Respondent had been caught masturbating for the second time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order dismissing the charges against Respondent and reinstating his employment with full back pay. DONE AND ENTERED this 10th day of February, 2010, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2010.
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.
