STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2061

) GOLDEN DOLPHIN NUMBER 1, INC., ) d/b/a GOLDEN DOLPHIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Michael R.N. McDonnell, Hearing Officer of the Division of Administrative Hearings, at 9:00 a.m., on January 11, 1978, at 1300 West Lee Road, Office of the Division of Alcoholic Beverages and Tobacco, Orlando, Florida.

APPEARANCES

For Petitioner: Richard Gentry, Esquire For Respondent: Jerry Bross, Esquire

Petitioner (hereafter DABT) has charged the Respondent (hereafter Golden Dolphin) with seven violations of Florida law which DABT contends are grounds for the assessment of a civil penalty or the suspension or revocation of Golden Dolphin's beverage license. Each of the charges alleges that an agent, servant or employee of Golden Dolphin performed, participated in, promoted or conducted an obscene, lewd, lascivious or indecent live performance before an audience.

Upon completion of the presentation of DABT's evidence, Golden Dolphin, by Motion, raised the question of whether DABT had established a prima facie case. As discussed below, the Hearing Officer ruled that DABT had not presented a prima face case against Golden Dolphin and that, accordingly, he would make findings of fact consistent with that ruling and recommend dismissal of the charges.

FINDINGS OF FACT

1. Golden Dolphin was the holder of the State of Florida Alcoholic Beverage license number 15-229 for the period October 1, 1976, through September 30, 1977. DABT seeks to assess a civil penalty against the Golden Dolphin or to suspend or revoke its beverage license on the grounds that seven violations of Section 847.011(4), Florida Statutes, occurred on the premises of Golden Dolphin on June 9, 10 and 11, 1977.

2. During that period of time, various dance routines depicting sexual acts, representing sexual acts or suggesting or encouraging sexual arousal occurred on the premises.

   
   

3. No evidence was introduced purporting to establish that any of the performers were agents, servants or employees of Golden Dolphin. Accordingly, it is found, as a matter of fact, that the performers were not agents, servants or employees of Golden Dolphin.

   
   

4. No evidence was introduced purporting to demonstrate whether, to the average person applying contemporary community standards, the dominant theme of the material, 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 material presented at the Golden Dolphin, taken as a whole, did not appeal to prurient interests.

   
   

   CONCLUSIONS OF LAW

   
   

5. 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 Golden Dolphin with 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.

   
   

6. 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.

   
   

7. 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.

   
   

8. In each of the seven charges, it is alleged that the person either performing or participating in promoting or conducting the performance was an agent, servant or employee of Golden Dolphin. 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.

   
   

9. It has long been established that the burden of proof is on the party asserting the affirmative of an issue before on administrative tribunal. 1 Cooper, State Administrative Law, 355 (1965); 1 Fla. Jur., Administrative Law,

s. 120; Tropical Park v. Ratliff, 97 So.2d 169, 177 (Fla. 1957); Balino Florida Department of Health and Rehabilitative Services, 342 So.2d 349, (Fla. 1st DCA

1977). It is equally well established in our system of adversary jurisprudence that if the party having the burden of proof fails to meet that burden, the litigation should properly end. particularly, in cases of a penal or quasi- penal nature, our system does not allow State regulatory agencies to avoid their burden of proof by requiring a respondent to prove the case that the Petitioner agency failed to prove. It is, therefore, appropriate and consistent with the economy of governmental processes that upon Motion of a respondent, administrative proceedings be terminated in the absence of the establishment of a prima facie case by the Petitioner. It is, accordingly,

RECOMMENDED that the charges be dismissed.

DONE and ENTERED this 10th day of February, 1978, in Tallahassee, Florida.

MICHAEL R. N. MCDONNELL

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Richard Gentry, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304

Jerry Bross, Esquire 2323 South Washington

Suite 117

Titusville, Florida 32780

Docket for Case No: 77-002061

Orders for Case No: 77-002061