STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION OF ) BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 75-2157

) DOB CASE NO. 3-75-26A G & B OF JACKSONVILLE, INC., )

d/b/a The Harem, Beverage License ) No. 26-957,2-COP, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Chris H. Bentley, held an administrative hearing in this cause on February 11, 1976, in Jacksonville, Florida.

APPEARANCES

For Petitioner: J. Riley Davis, Staff Attorney

Department of Business Regulation

For Respondent: Harry Katz, Jr., Esquire

337 East Forsyth Street Jacksonville, Florida 32202

The Division of Beverage seeks to assess a civil penalty against, or to suspend or revoke Beverage License No. 26-957,2-COP issued to the Respondent, alleging that on November 1, 1974, three topless dancers who were agents, servants or employees of the Respondent, violated Section 796.07(3)(a), Florida Statutes, by unlawfully committing lewdness in the manner in which they danced for patrons of the bar. Further, the Division of Beverage alleges that on March 6, 1975, three other topless dancers who were agents, servants or employees of the Respondent, also violated Section 796.07(3)(a), Florida Statutes, by unlawfully committing lewdness in the manner in which they danced for patrons of the bar.

All Motions not otherwise disposed of are hereby denied.

FINDINGS OF FACT

The Hearing Officer finds the following facts:

1. Respondent is the holder of Beverage License No. 26-957,2-COP and the licensed premises encompass the bar known as "The Harem".

2. 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.

   
   

3. 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.

   
   

4. 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.

   
   

5. 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.

   
   

   CONCLUSIONS OF LAW

   
   

6. Proper notice, as required by law, has been given of this proceeding.

   
   

7. Respondent is the holder of Beverage License No. 26-957,2-COP and the licensed premises are The Harem which is a bar.

   
   

8. Section 796.07, Florida Statutes, defines the term "lewdness" as including ". . . any indecent or obscene act." In Chesebrough v. State of Florida, 255 So.2d 675 (1971), the Supreme Court stated "(l)ewdness may be defined as the unlawful indulgence of lust, signifying that form of immorality which has a relation to sexual impurity. It is generally used to indicate gross indecency with respect to the sexual relations." Subsection 796.07(3)(a), Florida Statutes, states that it shall be unlawful in the State of Florida to offer to commit, or to commit, or to engage in prostitution, lewdness, or assignation.

   
   

9. The acts, as set forth above, engaged in by Georgiann Smith, Annie Pearl Williams, Maria Jenkins, Essie May Parks and Gaynell Moore constitute the commission of lewdness as defined by statute and the Supreme Court of Florida and as prohibited by Subsection 796.07(3)(a), Florida Statutes.

   
   

10. Section 561.29, Florida Statutes, gives the Division of Beverage the power and authority to revoke or suspend the license of a licensee, or to impose a civil penalty against the licensee, not to exceed $1,000.00, for violations arising out of a single transaction, when it is determined that the licensee or its agents, officers, servants or employees, have violated any of the laws of the State of Florida. 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 Respondent as those terms are used in Subsection 561.29, Florida Statutes.

    
    

11. The violations by each woman as set forth above, each constitute a single transaction as that language is used in Subsection 561.29(4), Florida Statutes, with regard to the imposition of a civil penalty.

RECOMMENDED ORDER

Having considered all testimony, evidence and other matters presented in this proceeding, the Hearing Officer makes the following recommendations:

1. Petitioner having failed to establish that Virginia Lou Roberts committed the alleged acts as set forth in Count III of the Amended Notice to Show Cause, said Count III should be dismissed with prejudice.

   
   

2. Respondent should be assessed a civil penalty for those violations set forth in Counts I, II, IV, V and VI of the Amended Notice to Show Cause, in the amount of $600.00 for each count. Further, considering the continuing and blatant nature of the violation, Respondent's license should be suspended for 30 days for each of the counts set forth in the Amended Notice to Show Cause, said suspensions to run concurrently.

ENTERED this 3rd day of May, 1976, in Tallahassee, Florida.

CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

J. Riley Davis, Esquire Staff Attorney Department of Business

Regulation

The Johns Building Tallahassee, Florida 32304

Harry Katz, Jr., Esquire

337 East Forsyth Street Jacksonville, Florida 32202

Charles Nuzum, Director Division of Beverage Department of Business

Regulation

The Johns Building Tallahassee, Florida 32304

Docket for Case No: 75-002157

Orders for Case No: 75-002157