vs. ) CASE NO. 77-1538
) CENTRAL FLORIDA CLUBS, INC., ) d/b/a MR. BIG STUFF'S BEDROOM, )
Respondent. )
Pursuant to notice, an administrative hearing was held before Michael R.N. McDonnell, Hearing Officer for the Division of Administrative Hearings, at 9:30 a.m., on January 10, 1978, at 1300 West Lee Road, Office of the Division of Alcoholic Beverages and Tobacco, Orlando, Florida.
For Petitioner: Richard Gentry, Esquire, For Respondent: Judith A. Ginn, Esquire,
Petitioner (hereafter DABT) has charged the Respondent (hereafter Central Florida Clubs) with ten violations of Florida law which DABT contends are grounds for the assessment of a civil penalty or the suspension or revocation of Central Florida Clubs' beverage license. Eight of the charges allege that an agent, servant or employee of Central Florida Clubs performed, participated in, promoted or conducted an obscene, lewd, lascivious or indecent live performance before an audience in violation of Section 847.011(4), Florida Statutes. The remaining two charges allege that an agent, servant or employee or entertainer of Central Florida Clubs begged or solicited a customer to purchase a beverage or that such begging or soliciting was permitted by an agent, servant or employee of Central Florida Clubs to beg or solicit a customer to purchase a beverage in violation of Sections 562.12(1) and (2), Florida Statutes.
On May 11, 1977, at an establishment advertised as Mr. Big Stuff's Bedroom, female topless dancers were observed either straddling customers legs or dancing between customers legs while either placing their breasts close to or touching the customers' faces.
No evidence was introduced purporting to establish that any of the performers were agents, servants or employees of Central Florida Clubs. Accordingly, it is found, as a matter of fact, that the performers were not agents, servants or employees of Central Florida Clubs.
No evidence was introduced purporting to demonstrate whether, to the average person applying contemporary community standards, the dominant theme of the dance, taken as a whole, appealed to prurient interests. Accordingly, it is found, as a matter of fact, that to the average person, applying contemporary community standards, the dominant theme of the dance presented at Mr. Big Stuff's Bedroom, taken as a whole, did not appeal to prurient interests.
No evidence was introduced purporting to demonstrate whether Mr. Big Stuff's Bedroom was operated under the auspices of the licensee, Central Florida Clubs. Accordingly, it is found, as a matter of fact, that Mr. Big Stuff's Bedroom was not operating under the auspices of the licensee, Central Florida Clubs.
On May 11, 1977, an unidentified person declared that if one drink were purchased, then a second drink, at a reduced price, would be provided for a waitress. No evidence was introduced as to the identity of the person nor purporting to establish that such person was an agent, servant or employee or entertainer of Central Florida Clubs. Accordingly, it is found, as a matter of fact, that the unidentified person was not an agent, servant, employee or entertainer of Central Florida Clubs.
No evidence was introduced purporting to establish that Harold Ernest Squires, Jr., was an agent, servant or employee of Central Florida Clubs, or that Harold Ernest Squires, Jr., did knowingly permit one Joyce Marie Polakowski to loiter in or about the licensed premises for the purpose of begging or soliciting a person, customer or visitor, to purchase a beverage. Accordingly, it is found, as a matter of fact, that Harold Ernest Squires, Jr., was not an agent, servant or employee of Central Florida Clubs and that Harold Ernest Squires, Jr., did not knowingly permit Joyce Marie Polakowski or any other person to loiter in or about the license premises for the purpose of begging or soliciting a customer to purchase a beverage.
CONCLUSIONS OF LAW
Section 561.29, Florida Statutes, gives DABT full power to penalize a corporate licensee for violations of laws of the State. Pursuant to this authority, DABT has charged Central Florida Clubs with eight violations of Section 847.011(4), Florida Statutes, which provides:
Any person who knowingly promotes, con- ducts, performs, or participates in an obscene, lewd, lascivious, or indecent show, exhibition, or performance by live persons or a live person before an audience is guilty of a misdemeanor of the first degree . . .
In subsection (11) of the same statute, is contained the test of obscenity:
Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.
It is concluded as a matter of law that for the purposes of the definition, the words lewd, lascivious and indecent are synonymous with obscene.
In the instant case, there was a complete absence of evidence to establish applicable community standards. Accordingly, it is not possible to make a finding that the performance was obscene, lewd, lascivious or indecent. This is a necessary element of the charges brought by DABT in this case.
In each of these eight charges, it is alleged that the person either performing or participating in, promoting or conducting the performance was an agent, servant or employee of Central Florida Clubs. Again, there is a complete absence of proof as to these allegations. The relationship of the performer to the licensee is also a necessary element of the charge.
DABT has also charged Central Florida Clubs with violations of Sections 562.131(1) and (2), Florida Statutes, which provides:
"(1) It is unlawful for any licensee, his employee, agent, servant, or any entertainer employed at the licensed premises or employed on the contractual basis to entertain, perform or work upon a licensed premises to beg or solicit any patron or customer thereof or visitor in any licensed premises to purchase any beverage, alcoholic or otherwise, for
such licensee's employee, agent, servant, or entertainer.
(2) It is unlawful for any licensee, his employee, agent, or servant to knowingly permit any person to loiter in or about the licensed premises for the purpose of begging or soliciting any patron or customer of, or visitor in, such premises to purchase any beverage, alcoholic or otherwise."
In the first charge, it is alleged that Joyce Marie Polakowski is an agent, servant or employee or entertainer of Central Florida Clubs, however, there is a complete absence of proof of this allegation.
In the second charge, it is alleged that Harold Ernest Squires, Jr., is an agent, servant or employee of Central Florida Clubs, however, there is a complete absence of proof of this allegation.
In these first two charges, it is alleged that Joyce Marie Polakowski either begged or solicited a customer to purchase a beverage or that she loitered in or about the licensed premises for the purpose of begging or soliciting a customer to purchase a beverage, however, there is a complete absence of proof as to these allegations.
Finally, there is a complete absence of proof that Mr. Big Stuff's Bedroom, the location of all alleged activity, was licensed by DABT for operating under the auspices of the license of Central Florida Clubs. It is, accordingly,
RECOMMENDED that the charges be dismissed.
DONE and ENTERED this 10th day of February, 1979, in Tallahassee, Florida.
MICHAEL R. N. MCDONNELL
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Richard Gentry, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304
Judith A. Ginn, Esquire
