STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA A. JAMES, )

)

Petitioner, )

)

vs. ) CASE NO. 80-174

)

STATE OF FLORIDA, DIVISION )

OF ALCOHOLIC BEVERAGES AND )

TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on February 26, 1980, in the Park Trammell Building, 1313 Tampa Street, Tampa, Florida.

APPEARANCES

For Petitioner: Edward M. Moore, Esquire

1515 N.W. 7th Street Miami, Florida 33125

For Respondent: Mary Jo M. Gallay, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

ISSUE

The issue to be decided here concerns the Petitioner, Barbara A. James' entitlement to be allowed to receive in transfer a Series 2-COP beverage license for a premises known as Ringside Bar in Dade County, Florida.

FINDINGS OF FACT

1. On July 24, 1979, the Petitioner, Barbara A. James, applied to the Respondent, State of Florida, Division of Alcoholic Beverages and Tobacco, to receive an alcoholic beverage license. The details of that application may be found in the Respondent's Exhibit 1 admitted into evidence, which is a copy of the personal questionnaire executed in the course of the application process. This application was for the transfer of license 23-777 for a licensed premises known as the Ringside Bar located at 136 N.E. 54th Street, Miami, Florida.

   
   

2. The Petitioner is the owner of the Ringside Bar in which she has placed an initial downpayment of $7,500.00 and financed an amount of $18,000.00 with an additional $10,000.00 in improvements having been made to the bar.

3. After reviewing the license application, the Director of the Division of Alcoholic Beverages and Tobacco denied the transfer of the license on December 31, 1979. In his statement of denial the Director based his decision on the belief that the applicant, Barbara A. James, was not thought to be of good moral character within the meaning of Section 561.15, Florida Statutes. The Petitioner took issue with that determination by the Director and this led to the formal Subsection 120.57(1), Florida Statutes, hearing held herein.

   
   

4. At present, in addition to being the owner of the Ringside Bar, the Petitioner is an employee of the Florida Container Company of Sebring, Florida, and works in the sales and promotional aspect of that company. The company manufactures egg containers. In total time of employment, the Petitioner has worked for the Florida Container Company for a period of thirteen (13) months. The Petitioner was not actively employed by that company at the time of the request for license transfer.

   
   

5. For approximately ten (10) years prior to her employment with this employer, the Petitioner had worked as a cocktail waitress and barmaid in various establishments in Tampa, Florida.

   
   

6. In the past the Petitioner has had a number of arrests for various offenses. Around 1965 or 1966 the Petitioner was arrested for prostitution in Indianapolis, Indiana. Petitioner's explanation of this matter offered during the course of the hearing was to the effect that she was living in a rooming house when the police came to that location and arrested everyone there because of the authorities' suspicion that one or two of the girls who were living there were engaging in prostitution. The Petitioner denied engaging in prostitution. The charges were dismissed, according to the Petitioner, and there is no evidence to contradict this statement by the Petitioner.

   
   

7. In 1970 Ms. James was arrested for disturbing the peace and this case was dismissed.

   
   

8. In 1975 the Petitioner was arrested for disorderly conduct by the Tampa Police Department and was subsequently fined $25.00. This incident involved a dispute with her roommate, in which James and her roommate had a fight.

   
   

9. On April 25, 1978, in Tampa, Florida, the Petitioner was arrested for offering to commit prostitution. The disposition of that case in the courts was that the Petitioner entered a plea of nolle contendere to the offense and was required to pay a fine. There was no adjudication of guilt in that matter. In the course of the hearing sub judice, the Petitioner stated that the reason she entered her nolle contendere plea was for reason that her attorney advised her that it was the easiest and quickest thing to do and it would be like it didn't happen. James further stated that if she had known that it would he held against her she would have contested it, meaning the charge of attempting to commit prostitution.

   
   

10. The facts of the incident of April 25, 1978, reveal that officers of the Tampa Police Department on that date went to a bar known as the Huddle Lounge, which is located on North Dale Mabry in Tampa, Florida, to investigate possible acts of prostitution that were occurring in the bar. The two officers, Halstead and Slater, entered the lounge and took a seat at the bar and ordered a drink. At that time Officer Halstead noticed a woman identified as Troy Taylor who was smiling at Officer Halstead. Halstead and Slater then went to the table where Troy Taylor was located and took a seat. Shortly thereafter, the Petitioner came to the table and entered into the conversation that was being

    conducted. While the Petitioner was present, Taylor discussed with the two officers the arrangement for a "date" between the officers, Taylor and the Petitioner. Use of the word "date" meant the making of arrangements for the women to commit acts of prostitution. Taylor stated that the price for the "date" would be fifty dollars ($50.00) for each officer and told the officers to follow them to the apartment of the woman which would be used for the "date".

    
    

11. Taylor and the Petitioner left in their automobile and the officers followed them to the apartment of Taylor and the Petitioner. Once inside the apartment, Taylor asked the officers which officer was going to go with what woman and then stated to Halstead that he should go with her. The Petitioner then went with Officer Slater into her bedroom.

    
    

12. When in the bedroom, Slater asked James about the money which had been discussed in the bar as a payment for the act of prostitution. James told the officer to place the money on the bookshelf and she then removed her clothes. The amount of money that was placed there was fifty dollars ($50.00). James instructed the officer to take off his clothes and he complied with her request. She asked him to go into the bathroom and when in the bathroom she stated that she would have to examine his genitalia to determine if he was clean and if he had "V.D." She examined his penis and took him back into the bedroom and told him to lie down. The officer then asked James what he would get for his fifty dollars ($50.00) and in response James told him on several occasions to lie down. She then removed his shorts and moved her head toward the area of his penis, at which he asked what he would get for the fifty dollars ($50.00) by the question, "Half and half?", meaning oral sex and intercourse, to which the Petitioner responded, "Yes." The officer then stated that he had changed his mind and got up from the bed and placed the Petitioner under arrest.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

    
    

14. The sole basis for denying the license application of the Petitioner, which is a request to transfer the current beverage license of the Ringside Bar in Dade County, Florida, is premised upon the contention that the Petitioner has failed to demonstrate the requisite good moral character necessary for a beverage license holder. The requirement for good moral character is found in Subsection 561.15(1), Florida Statutes, which states:

    
    

    561.15 Licenses; qualifications required.--

    (1) Licenses shall be issued only to persons of good moral character, who are not less than 18 years of age. Licenses to cor-

    porations shall be issued only to corporations whose officers are of good moral character

    and not less than 18 years of age. There shall be no exemptions from the license taxes herein provided to any person, association of persons or corporation, any law to the con- trary notwithstanding.

    
    

    The meaning of the term "good moral character" has been discussed by the Court in the case of Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102 (1st DCA 1977). In that opinion, at page 1105, the Court stated in discussing moral character:

    (1,2) Moral character, as used in this statute, means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right con- duct, and conduct which indicates and establishes the qualities generally accept- able to the populace for positions of trust

    and confidence. An isolated unlawful act 1/ or acts of indiscretion wherever committed

    do not necessarily establish bad moral character. But, as shown by the evidence here, repeated acts in violation of law wherever committed and generally condemned by law abiding people, over a long period

    of time, evinces the sort of mind and estab- lishes the sort of character that the legislature, as Judge Rawls said in Beary, supra, "in its infinite wisdom", has determined should not be entrusted with a liquor license.

    
    

    Unlike Zemour, there is no clearly discernible pattern of conduct in the form of repeated acts violating the law which show the Petitioner lacks good moral character; however, in view of the facts in this case, it must be concluded that the Petitioner lacks the necessary good moral character to be granted a beverage license.

    
    

15. This conclusion is reached on the basis of the facts related to the incident of April 25, 1978, in which the Petitioner offered to commit an act of prostitution with Officer Slater and made the arrangements for such activity in a premises in which alcoholic beverages were being dispensed, and although this is the only occasion in which the Petitioner has been shown to be participating in acts of prostitution, the seriousness of that activity as a possible bar to licensure has been recognized by the Legislature when it absolutely prohibited persons who have been convicted of soliciting for prostitution in the last five

(5) years from being granted a beverage license. (This statement of prohibition is found in Subsection 561.15(2), Florida Statutes. 2/ Therefore, had the Petitioner been "convicted" of soliciting for prostitution, she could have been denied the license without any necessity for considering the issue of her moral character. The facts of this case are sufficient to have caused the conviction of the Petitioner for offering to commit prostitution and the arrangements for such commission were made in a premises licensed by the Respondent. It then follows that the act of soliciting for prostitution being one of those special categories of offenses for which a conviction standing alone is sufficient basis to deny a license and the Petitioner having committed acts which are tantamount to committing the offense of soliciting for prostitution, she per se lacks good moral character within the meaning of Subsection 561.15(1), Florida Statutes. Consequently, Barbara A. James is not entitled to a beverage license.

RECOMMENDATION

IT IS RECOMMENDED that the request by the Petitioner, Barbara A. James, to transfer the alcoholic beverage license associated with the Ringside Bar at 136

N.E. 54th Street, Miami, Florida, into her name as licensee be DENIED. 3/

DONE AND ENTERED this 21st day of March, 1980, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

ENDNOTES

1/ *

* NOTE: Endnote text is not on the original Recommended Order on file with DOAH Clerk's Office and is therefore not a part of this ACCESS Document.

2/ (2) No license under the Beverage Law shall be issued to any person who has been convicted within the last past 5 years of any offense against the bev- erage laws of this state, the United States, or any other state; who has been convicted within the last past 5 years in this state or any other state or the United States of soliciting for prostitution, pandering, letting premises for prostitution, keeping a disorderly place, or illegally dealing in narcotics; or who has been convicted in the last past 15 years of any felony in this state or any other state or the United States; or to a corporation, any of whose officers shall have been so convicted. The term 'conviction' shall include an adjudication of guilt on a plea of guilty or nolo contendere or the forfeiture of a bond when charged with a crime.

3/ The parties have submitted Proposed Findings of Fact, Conclusions of Law and a Recommendation and these matters have been reviewed prior to the entry of this Recommended Order. To the extent that those proposals are not inconsistent with this Recommended Order, they have been utilized in the preparation of this Recommended Order. To the extent that they are inconsistent, they are hereby rejected.

COPIES FURNISHED:

Edward M. Moore, Esquire 1515 N.W. 7th Street Miami, Florida 33125

Mary Jo M. Gallay, Esquire Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 80-000174

Orders for Case No: 80-000174