STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DIVISION OF ) BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1766

)

EVELYN'S, INC., t/a )

THE OTHER DOOR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on December 14, 1976, at 1:00 P.M., at 1300 West Lee Road, Orlando, Florida.

APPEARANCES

For Petitioner: Lawrence D. Winson, Esquire

Division of Beverage 725 Bronough Street The Johns Building

Tallahassee, Florida 32304

For Respondent: Harry N. Jacobs, Esquire

Jacobs and Goodman

Suite 126, 303 East Altamonte Drive Altamonte Springs, Florida 32701

ISSUES

1. Whether or not on or about June 21, 1976, the Respondent, Evelyns, Inc., did permit its agents, servants, or employees, to wit: Kevin Kierstead and Alan Rogers to expose their sexual organs on its licensed premise which is open to the public, in a vulgar and indecent manner in violation of s. 800.03, F.S., thereby violating s. 561.29, F.S.

   
   

2. Whether or not on or about June 21, l976,the Respondent, Evelyns, Inc., did permit its agents, servants, or employees, to wit: Kevin Kiersiead and Alan Rogers to engage in lewd and lascivious conduct, to wit: displaying sexual organs in a lewd and lascivious manner in violation of s. 795.02, F.S., thereby violating s. 561.29, F.S.

FINDINGS OF FACT

1. The Respondent, Evelyns, Inc., t/a The Other Door, is the holder of license no. 58-375, series 4-COP, held with the State of Florida, Division of Beverage from October 1, 1975 through September 30, 1977.

2. On the night of June 21, 1976, Diane Salyer and Sharon Viaphiades entered the licensed premises known as The Other Door, which was owned by the Respondent, Evelyns, Inc. After entering the licensed premises they sat down at a round table which was approximately four feet high and two feet in diameter. In the licensed premises were approximately 100 to 125 female patrons, ten or twelve male dancers, and a number of employees of the Respondent. Among the employees were several door watchers, waitresses, and a master of ceremonies. The male dancers were referred to as "Go-Go" dancers and these dancers were dancing on a stage area and on various tables about the inside of the licensed premises.

   
   

3. One of the dancers was a Kevin Kierstead and at some point during the evening Kevin Kierstead stood up on the table at which Salyer and Viaphiades were seated and commenced to dance for these women. This dance took approximately three to five minutes and in the course of that dance Kierstead exposed his sexual organs to Salyer and Viaphiades, twice to Salyer and once to Viaphiades. Each of these exposures took approximately two to three seconds. The exposure was done by squatting in front of the two women on each occasion and pulling back the jock strap costume that the dancer was wearing. It was not established that any of the employees within the licensed premises saw this act of exposure.

   
   

4. By prearranged signal, the aforementioned witnesses, Salyer and Viaphiades were to contact law enforcement officers who were waiting outside. After Kierstead had exposed himself, contact was made with the law enforcement officials. One of the officials who came into the premises was, David A. Hughes, an officer with the Orlando Police Department. Officer Hughes, upon entering spoke with Charles Veigle, one of the owners of the premises. While speaking with Veigle a dancer whose name is Alan Rogers was dancing on a table in front of the officer and to his left. On three occasions during the course of that dance the dancer exposed his sexual organs to the women who were seated at that table. These exposures only took a matter of seconds. Rogers was 25 or

   30 feet away from officer Hughes and there were people seated between the officer and the activity. Again, it is not clear whether Charles Veigle or any other employee saw the exposure which took place.

   
   

5. The Respondent, through its ownership had undertaken to insure that no such activity would occur, by requiring each of the dancers to sign a piece of paper saying that they had been instructed as to the rules for dancing. Essentially those rules, which were in writing and were signed, instructed the dancers not to touch the patrons, not to dance in the patrons face and not to allow the patrons to touch the dancer. Additionally, there was some testimony that announcements were made over the public address system at intervals reminding the dancers and patrons of the rules; however, it was unclear whether these announcements were made on the night of June 21, 1976, at the time that the two women witnesses, Salyer and Viaphiades and officer Hughes were in the premises. Kierstead read the paper and signed it on the night of June 21, 1976. Rogers, who had danced at the licensed premises on several other occasions could not remember reading and signing the paper on June 21, 1976, but did recall being told of the rules the first time he danced there.

   
   

6. The dancers participating on June 21, 1976, were allowed to take tips from the patrons and were dancing for a $50.00 first prize to be paid by the owner of the licensed premises. In addition, each dancer was entitled to three complimentary drinks at the expense of the owners of the licensed premises.

7. Part of the function of the door watchers was to walk around the room and insure no violations of the house rules on the subject of dancers were violated. Finally, in the past, on six occasions, participates other than Kierstead and Rogers had been removed from the licensed premises during the course of the male "Go-Go" dancers, for violation of the house rules as to conduct with the patrons or exposure of their sexual organs. This removal had been accomplished by employees of the licensee.

   
   

   CONCLUSIONS OF LAW

   
   

8. It is concluded that the Division of Administrative Hearings has jurisdiction in this cause.

   
   

9. The motion for judgement of acquittal or directed verdict made by the Respondent at the close of the Petitioner's case in chief is denied.

   
   

10. Based upon the facts as shown, it is concluded as a matter of law that the Petitioner has failed to show that the Respondent, Evelyns, Inc., permitted its agents, servants or employees, to wit: Kevin Kierstead and Alan Rogers to expose their sexual organs on its licensed premises which is open to the public in a vulgar and indecent manner, in violation of s. 800.03, F.S., thereby violating s. 561.29, F.S. The facts do not show culpability on the part of the Respondent, through negligence, intentional wrongdoing, or lack of diligence.

    
    

11. Based upon the facts as shown, it is concluded as a matter of law that, the Petitioner has failed to establish that the Respondent, Evelyns, Inc., did permit its agents, servants or employees to wit: Kevin Kierstead and Alan Rogers to engage in lewd and lascivious conduct to wit: displaying sexual organs in a lewd and lascivious manner in violation of s. 798.02, F.S., thereby violating s. 561.29, F.S. The Petitioner has failed to show that the Respondent is responsible for the acts of those individuals, either through its own negligence, intentional wrongdoing, or lack of diligence.

RECOMMENDATION

It is recommended that the charges filed by the Petitioner against the license of Evelyns, Inc., t/a The Other Door, under license no. 58-375, series 4-COP as set forth above, be dismissed.

DONE and ENTERED this 11th day of February, 1977, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Lawrence D. Winson, Esquire Division of Beverage

725 Bronough Street The Johns Building

Tallahassee, Florida 32304

Harry N. Jacobs, Esquire Jacobs and Goodman

Suite 126, 303 E. Altamonte Drive Altamonte Springs, Florida 32701

Docket for Case No: 76-001766

Orders for Case No: 76-001766