vs. ) CASE NO. 80-922
Respondent. )
Pursuant to notice, a hearing was held in Orlando, Florida, on December 3, 1980, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:
For Petitioner: James N. Watson, Jr., Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Richard L. Wilson, Esquire
This case was presented through a Notice to Show Cause/Administrative Complaint filed by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco (DABT) against the Respondent, Inside Entertainment, Inc., d/b/a Fox Hunter (licensee), in which the requested relief is the imposition of civil penalty, suspension or revocation of the beverage license allegedly held by Inside Entertainment, Inc. The Notice to Show Cause/Administrative Complaint contains the following charges:
On or about the 15th of November, 1979, you, INSIDE ENTERTAINMENT, INC., licensed under the beverage law, your agent, servant or employee, to wit; LINDA KAY FARDETTE, did unlawfully expose or exhibit herself in a vulgar or indecent manner on your licensed premise, being completely nude and running the index finger of her right hand through the
lips of her vagina, while on the dancers stage, in an enticing manner towards Beverage Officer
W. R. WIGGS, contrary to F.S. 800.03 and
877.03 to wit 561.29.
On or about the 15th of November, 1979, you, INSIDE ENTERTAINMENT, INC., licensed under the beverage law, your agent, servant or employee, to wit; BRENDA MACY JANCIAK, did unlawfully expose or exhibit herself in a vulgar or indecent manner on your licensed premise, to wit; while dancing on the stage in complete nudity, JANCIAK rubbed her vagina area with the index finger of her right hand in an enticing manner towards a customer or patron, to wit; Beverage Officer W. R. WIGGS, contrary to F.S. 800.03 and 877.03 to wit 561.29.
On or about the 15th of November, 1979, you, INSIDE ENTERTAINMENT, INC., licensed under the beverage law, your agent, servant or employee, to wit; LINDA KAY FARDETTE, did unlawfully, on your licensed premises commit an act which is of a nature to corrupt the public morals, or outrage the sense of public decency, to wit; while performing a lap dance for Beverage Officer W. R. WIGGS, FARDETTE would rub her vaginal area upon the genital
area of WIGGS in a grinding and pumping motion, thereby causing WIGGS' penis to become erect, contrary to F.S. 800.03 and 877.03 to wit 561.29.
On or about the 15th of November, 1979, you, INSIDE ENTERTAINMENT, INC., licensed under the beverage law, your agent, servant or employee, to wit; BRENDA MACY JANCIAK, did unlawfully, on your licensed premises commit an act which is of a nature to corrupt the public morals, or outrage the sense of public decency, to wit; while performing lap dance for Beverage Officer W. R. WIGGS would rub her vaginal area upon the genital area of WIGGS in a grinding and pumping motion, thereby causing WIGGS' penis to become erect, contrary to F.S. 800.03 and 877.03 to wit 561.29.
On or about the 15th of November, 1979, you, INSIDE ENTERTAINMENT, INC., licensed under the beverage law, your agent, servant or employee, to wit; BONNIE JOY SAWYER, did unlawfully expose herself or exhibit herself
in a vulgar or indecent manner on your licensed premises, on four separate occasions, by being completely nude on the dancer stage, did illuminate her vaginal area and anal area by using a BIC type lighter, then in an enticing manner rubbed her vaginal and anal area with her fingers, contrary to F.S. 800.03 and
877.03 to wit 561.29.
On or about the 15th of November, 1979, you, INSIDE ENTERTAINMENT, INC., licensed under the beverage law, your agent, servant or employee, to wit; LEAH DAMARIS WILSON, did unlawfully expose or exhibit herself in a vulgar or indecent manner on your licensed premises, on four separate occasions, by being completely nude on the dancer stage, did illuminate her vaginal and anal area by using a BIC type lighter, then in an enticing manner rubbed her vaginal and anal area with her fingers, contrary to F.S. 800.03 and 877.03 to wit 561.29
On or about the 15th of November, 1979, you, INSIDE ENTERTAINMENT, INC., licensed under the beverage law, your agent, servant or employee, to wit; "NINA," did unlawfully expose or exhibit herself in a vulgar or indecent manner on your licensed premises on four separate occasions, by disrobing to complete nudity on the dancers stage, bend over exposing her anal and vaginal area, run her fingers from her anal area through her vaginal area to her belly button, in an enticing manner, contrary to F.S. 800.03 and
877.03 to wit 561.29.
On or about the 15th of November, 1979, you, INSIDE ENTERTAINMENT, INC., licensed under the beverage law, your agent, servant or employee, to wit; "APRIL," did unlawfully expose or exhibit herself in a vulgar or indecent manner on your licensed premises on four separate occasions, by being completely nude on the dancer stage, did illuminate her vaginal and anal area by using a BIC type lighter, then in an enticing manner rub her vaginal and anal area with her fingers, contrary to F.S. 800.03 and 877.03 to wit 561.29.
On or about the 15th of November, 1979, you, INSIDE ENTERTAINMENT, INC., licensed under the beverage law, your agent, servant or employee, to wit; WENDY KAY KNIGHT, did unlawfully expose or exhibit herself in a vulgar or indecent manner on your licensed premises on four separate occasions, by disrobing to complete nudity on the dancer stage, bend over exposing her anal and vaginal area, run her finger over her anal and vaginal area in an enticing manner, contrary to F.S. 800.03 and 877.03 to wit 561.29.
On or about the 19th of November, 1979, you, INSIDE ENTERTAINMENT, INC., licensed under the beverage law, your agent, servant or employee, to wit; DARLENE HELEN POULLIOT, did unlawfully expose or exhibit herself in a vulgar or indecent manner on your licensed premises, on four separate occasions, by disrobing to complete nudity on the dancer stage, bend over exposing her anal and vaginal area, run her finger over her anal and vaginal area in an enticing manner, contrary to F. S. 800.03 and 877.03 to wit 561.29.
On or about the 15th of November, 1979, you, INSIDE ENTERTAINMENT, INC., licensed under the beverage law, your agent, servant
or employee, to wit; "MARLENE," did unlawfully expose or exhibit herself in a vulgar or indecent manner on your licensed premises on four separate occasions, by disrobing to complete nudity on the dancer stage, bend
over exposing her anal and vaginal area, run her finger over her anal and vaginal area in an enticing manner, contrary to F.S. 800.03 and 877.93 to wit 561.29.
On or about the 15th of November, 1979, you, INSIDE ENTERTAINMENT, INC., licensed under the beverage law, your agent, servant or employee, to wit; "SUNNY," did unlawfully expose or exhibit herself in a vulgar or indecent manner on your licensed premises, on four separate occasions, by being completely nude on the dancer stage, did illuminate her vaginal and anal area by using a BIC type lighter, then in an enticing manner rub her vaginal and anal area with her fingers, contrary to F.S. 800.03 and 877.03 to wit 561.29.
On or about the 15th of November, 1979, you, INSIDE ENTERTAINMENT, INC., licensed under the beverage law, your agent, servant or employee, to wit; "APRIL," did on your licensed premises unlawfully commit an act which is of a nature to corrupt the public
morals, or outrage the sense of public decency, to wit; while performing a lap dance for Beverage Officer J. E. KIKER, JR., APRIL would rub her vaginal area upon the genital area of KIKER in a grinding and pumping motion,
thereby causing KIKER's penis to become erect, contrary to F.S. 800.03 and 877.03 to wit 561.29.
On or about the 15th of November, 1979, you, INSIDE ENTERTAINMENT, INC., licensed
under the beverage law, your agent, servant or employee, to wit; WENDY KAY KNIGHT, did unlawfully on your licensed premises commit an act which is of a nature to corrupt the public morals, or outrage the sense of public decency, to wit; while performing a lap dance for Beverage Officer J. E. KIKER, JR., KNIGHT
would rub her vaginal area upon the genital area of KIKER in a grinding and pumping motion, thereby causing KIKER's penis to become erect, contrary to F.S. 800.03 and 877.03 to wit 561.29.
On or about the 15th of November, 1979, you, INSIDE ENTERTAINMENT, INC., licensed under the beverage law, your agent, servant or employee, to wit; "MARLENE," did unlawfully on your licensed premises commit an act which is of a nature to corrupt the public morals, or outrage the sense of public decency, to wit; while performing a lap dance for Beverage Officer J. E. KIKER, JR., MARLENE would rub her vaginal area upon the genital area of KIKER in a grinding and pumping motion, thereby causing KIKER's penis to become erect, contrary to F.S. 800.03 and 877.03 to wit 561.29.
On or about the 19th of November, 1979, you, INSIDE ENTERTAINMENT, INC., licensed under the beverage law, you agent, servant or employee, to wit; BONNIE JOY SAWYER, did unlawfully on your licensed premises, commit an act which is of a nature to corrupt the public morals, or outrage the sense of public decency, to wit; while performing a lap dance for Beverage Officer M. L. IMPERIAL, SAWYER would rub her vaginal area upon the genital area of IMPERIAL in a grinding and pumping motion, thereby causing IMPERIAL's penis to become erect, contrary to F.S. 800.03 and
877.03 to wit 561.29.
On or about the 15th of November, 1979, you, INSIDE ENTERTAINMENT, INC., licensed under the beverage law, your agent, servant or employee, to wit; LEAH DAMARIS WILSON, did unlawfully on your licensed premises, on two separate occasions, commit an act which is of a nature to corrupt the public morals, or outrage the sense of public decency, to wit; while performing a lap dance for Beverage Officer M. L. IMPERIAL, WILSON would rub her
vaginal area upon the genital area of IMPERIAL, thereby causing IMPERIAL's penis to become erect, contrary to F.S. 800.03 and 877.03 to wit 561.29.
The Respondent, Inside Entertainment, Inc., which trades under the name of Fox Hunter, is the holder of beverage license No. 58-770, Series 2-COP. This license allows the consumption of alcoholic beverages on the premises, located at 1718 South Orange Avenue, Orlando, Florida. The petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida which has as its responsibility the licensure and regulation of beverage license holders in the State of Florida.
On November 15, 1979 , Beverage Officer W. R. Wiggs entered the licensed premises of Fox Hunter to investigate alleged Beverage Law violations. He was approached by Linda Kay Fardette who offered to give him a "lap dance," which he accepted. To perform the "lap dance," Ms. Fardette straddled Officer Wiggs' lap, rubbing her pubic area against his genitals in a series of gyrations performed during the playing of a musical recording. She wore a bikini bottom, however, her breasts were bare and made contact with Wiggs during the "lap dance." Ms. Fardette offered a second "lap dance" to Officer Wiggs which he also accepted. She asked and received three dollars for each of the two "lap dances." During these "lap dances," Officer Wiggs became sexually aroused, obtaining penile erection. (Count 3).
Officer Wiggs observed Ms. Fardette move to the stage to perform a dance routine announced over the public address system. During this dance, Ms. Fardette removed all her clothes and exposed her vagina to patrons in the audience. She ran her finger through the lips of her vagina while so exposing herself. (Count 1).
Officer Wiggs was approached by Brenda Macy Janciak, who offered him a "lap dance." He accepted and paid three dollars for each of two "lap dances." The motions, upper body nudity and contact were similar to that of Linda Kay Fardette, detailed above. Officer Wiggs was sexually aroused during the "lap dances," obtaining penile erection. (Count 4).
Officer Wiggs observed Ms. Janciak move to the stage upon introduction over the public address system. During the dance routine, Ms. Janciak removed all her clothes and exposed her vagina to patrons in the audience. She ran her finger through the lips of her vagina while so exposing herself. (Count 2).
On November 15, 1979, Beverage Officer J. E. Kiker, Jr. entered the licensed premises of Fox Hunter to investigate alleged Beverage Law violations. He observed Bonnie Joy Sawyer onstage, where she was introduced by a mistress of ceremonies. Her dance involved complete nudity. At one point, Ms. Sawyer spread her legs, exposing her anal-vaginal area, which she illuminated with a cigarette lighter. The dance also involved rubbing her pubic area with her hand and moving her hips in an undulating fashion. (Count 5).
Office Kiker observed Leah Damaris Wilson perform a similar dance onstage. Again, this dance involved total nudity, exposure of her anal-vaginal area and illumination of this area with a cigarette lighter. (Count 6).
Officer Kiker observed Wendy Kay Knight perform a nude dance. She was introduced by the mistress of ceremonies, disrobed during the dance sequence, exposed her vagina and rubbed her pubic area during the dance. (Count 9).
Wendy Kay Knight also performed a "lap dance" with Officer Kiker for a five-dollar charge. The "lap dance" was performed as described above and involved the rubbing of Ms. Knight's pubic area against Officer Kiker's genitals. Her breasts were bare and made contact with his person. Officer Kiker became sexually aroused during the "lap dance," obtaining penile erection. (Count 14).
Officer Kiker observed a woman known as "Marlene," who was dancing onstage. She approached him and offered to perform a "lap dance" for a charge of five dollars. The "lap dance" was performed as described above, with "Marlene" rubbing her pubic area against Officer Kiker's genitals. Her nude breasts made contact with him during this dance. Officer Kiker became sexually aroused during the dance, obtaining penile erection. (Count 15).
On November 19, 1979, Beverage Officer M. L. Imperial entered the licensed premises of Fox Hunter to investigate alleged Beverage Law violations. He observed a woman known as "Nina" on the stage. She disrobed onstage and was totally nude during a portion of the dance. During this routine, she bent over, exposing her vaginal and anal openings to the audience and running her finger through the lips of her vagina. (Count 7).
Officer Imperial observed a woman known as "April" dance onstage while completely nude. She performed essentially the same gestures as "Nina," bending over so as to expose her anal and vaginal openings and running her finger through the lips of her vagina. (Count 8)
Officer Imperial observed Darlene Helen Poulliot dance onstage partially nude. She performed a dance routine similar to that of "April" and "Nina," hut did not remove the bottom of her bikini costume. (Count 10).
Officer Imperial observed a woman known as "Sunny" dancing while completely nude. She spread the lips of her vagina and used a cigarette lighter to illuminate this orifice. She also ran her finger through her vaginal lips. (Count 12).
Officer Imperial was approached on separate occasions by Bonny Joy Sawyer and Leah Damaris Wilson, who each offered him "lap dances." He accepted one "lap dance" from Ms. Sawyer and two from Ms. Wilson, paying five dollars for each "lap dance." The women straddled Officer Imperial, rubbing their pubic areas against his genitals and performing a series of gyrations. The women wore only bikini bottoms and had breasts exposed during the "lap dance." Officer Imperial did not become sexually aroused. (Counts 16 and 17).
The Respondent stipulated to the fact that the stage dancers received tips from patrons and did not contest that the above named dancers were employees or agents of the licensee. Neither did Respondent deny that the stage dancing and "lap dancing" were within the scope of their employment.
Respondent takes the position that nude dancing is generally tolerated in the Orlando area and that "lap dances" do not constitute sexual behavior as Petitioner asserts. Respondent presented, as an expert witness, an associate professor of psychology at the University of Central Florida. The witness holds a doctorate in psychology and teaches courses in human sexuality.
This testimony established that nude dancing and "lap dancing" are typical in the so-called adult entertainment field. While he did not deny the sexual connotations of these dances, he established that fantasies play a part
in the arousal of male patrons. In this regard, Respondent also presented a lay witness who frequents topless bars and who has not been aroused by "lap dances."
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. It is concluded as a matter of law that notice provided the Respondent prior to hearing in this cause was sufficient.
The parties submitted proposed findings of fact. To the extent these proposed findings have not been adopted or are inconsistent with the findings herein, they have been specifically rejected as irrelevant or not supported by the evidence.
Section 561.29, Florida Statutes, (1979), provides in part:
The division is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when it is determined or found by the division upon sufficient cause appearing of:
Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state or of the United States, or violation of any municipal or county regulation in regard to the hours of sale,
service, or consumption of alcoholic beverages, or engaging in or permitting disorderly
conduct on the licensed premises, or permitting another on the licensed premises to violate any of the laws of this state or of the United States; except that whether or not the licensee or his or its agents, officers, servants, or employees have been convicted in any criminal court of any violation as set forth in this paragraph shall not be considered in proceedings before the division for suspension or revocation of a license except as permitted by chapter 92 or the rules of evidence.
(3) The division may impose a civil penalty against a licensee for any violation mentioned in the Beverage Law, or any rule issued pursuant thereto, not to exceed $1,000 for
violations arising out of a single transaction. . .
Section 800.03, Florida Statutes (1979), provides in part:
It shall be unlawful for any person to expose or exhibit his sexual organs in any public place or on the private premises of another, or so near thereto as to be seen from such
private premises, in a vulgar or indecent manner, or so to expose or exhibit his person in such place, or to go or be naked in such place. Provided, however, this section shall not be construed to prohibit the exposure of such organs or the person in any place provided or set apart for that purpose. . .
Section 877.03, Florida Statutes (1979), provides in part:
Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree, . . .
The above cited statutes provide for beverage license suspension, revocation or civil penalty where Florida law is violated by a beverage licensee or its agents, officers, servants or employees. The evidence adduced in this proceeding established that the acts described herein were performed by agents or employees of the licensee in the course of such agency or employment.
The exposure of sexual organs alleged in Counts 1, 2, 5, 6, 7, 8, 9 and 12 occurred substantially as charged, except that language alleging "four separate occasions" was not supported by the evidence. However, the exposure of sexual organs was demonstrated to have occurred and was in each instance a violation of Section 800.03, Florida Statutes, cited above.
The acts of sexual organ exposure alleged in Counts 10 and 11 were not supported by the evidence, and these charges should be dismissed. Further, no showing was made that any specific act was of a nature to corrupt the public morals or outrage the sense of public decency within the meaning of Section 877.03, Florida Statutes, cited above. This portion of these charges should therefore be dismissed.
The "lap dancing" alleged in Counts 3, 4, 14, 15, 16 and 17 was determined to have occurred substantially as charged. The "lap dancing" alleged in Count 13 was not attested to in sufficient detail to warrant affirmative findings of fact. Further, no showing was made that "lap dancing" as described herein is of a nature to corrupt the public morals or outrage the sense of public decency within the meaning of Section 877.03. Florida Statutes, or that such "lap dancing" involved the exposure of sexual organs in violation of Section 800.03, Florida Statutes, cited above. Therefore, the charges in Counts 3, 4, 13, 14, 15, 16 and 17 should be dismissed.
Based on the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violating Section 800.03,
Notice to Show Cause/Administrative Complaint. It is further
RECOMMENDED that all other charges alleging violation of Section 800.03, Florida Statutes (1979), be dismissed. It is further
RECOMMENDED that all charges alleging violation of Section 877.03, Florida Statutes (1979), be dismissed. It is further
RECOMMENDED that Respondent, Inside Entertainment, Inc., d/b/a Fox Hunter, be fined $1,000.
RECOMMENDED this 5th day of February, 1981, in Tallahassee, Leon County, Florida.
R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1981.
James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Richard L. Wilson, Esquire Metcalf Building, Suite 909
