vs. ) CASE NO. 81-1321
GOLDEN DOLPHIN #2, Inc. ) (Consolidated) d/b/a GOLDEN DOLPHIN #2, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in these consolidated cases on May 11, 1982, in Daytona Beach, Florida.
For Petitioner: James N. Watson, Jr., Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Samuel S. Henderson, Esquire and
Jerrold A. Bross, Esquire
Whether respondent's alcoholic beverage license should be suspended or revoked for alleged violations of the Beverage Law, Chapters 561 and 562, Florida Statutes (1981).
By separate notices to show cause, dated August 11, 1980 (DOAH Case No. 81- 1321) and September 15, 1981 (DOAH Case No 81-3038) petitioner ("DABT") charged respondent Golden Dolphin #2, Inc., d/b/a Golden Dolphin #2 ("respondent") with multiple violations of the Beverage Law, Chapters 561 and 562, Florida Statutes (1981) and sought suspension or revocation of its alcoholic beverage license.
Respondent denied the charges and requested a Section 120.57(1) hearing. DABT then forwarded these cases to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was thereafter set for February 2, 1982, then, on respondent's unopposed motion, reset for May 11, 1982.
By agreement of the parties, these cases were consolidated for final hearing. At hearing, DABT called as its witnesses, Kevin Ashcroft, B.A. Watts, Jr., Fred Dunbar, Rufus Blanton, and Robin Taylor O'Neill. Petitioner's Exhibit No. 1 was received into evidence. Respondent called Milton Sideman as its only witness. Respondent's Exhibit Nos. 2-4 were received into evidence, while ruling on Exhibit No. 1 was reserved pending submittal of posthearing memoranda.
The transcript of hearing was filed on November 21, 1982. Proposed findings of fact and conclusions of law were filed by January 5, 1983.
At all times material hereto, respondent held alcoholic beverage license No. 15-388 2-COP, authorizing it to sell beer and wine at its business known as Golden Dolphin #2, ("licensed premises") located at 218-B Highway A1A, Satellite Beach, Florida. The licensed premises includes a bar, lounge, and stage where nude or partially nude dancers provide live entertainment.
I.
Alleged Violations Occurring On July 3, 1980
During the evening of July 3, 1980, Beverage Officers B. A. Watts and Kevin Ashcroft entered the licensed premises in an undercover capacity. Officer Watts sat down at a table and ordered a beer. Patricia Belle Gardener a/k/a "Peaches," employed by respondent, approached and sat down at his table. While they were talking, Anita Jackson, a waitress employed by respondent, approached and asked him, "Do you want to buy Peaches a drink?" or words to that effect.
He turned to Peaches and asked her if she wanted a drink; she answered "Yes." He then ordered a wine cocktail for her and paid Ms. Jackson $5.00. (Testimony of Watts.)
Later that evening, Peaches asked Officer Watts if he would buy her another drink. He replied that the price was rather steep but that, if she got part of it, he would agree. After she replied that she received a commission from the sale, he agreed. She summonned waitress Jackson, and told her that he wanted another drink. Ms. Jackson asked Officer Watts if he wanted a bottle, which she said was a "better deal." (Tr. 32) After hearing the price, he declined and ordered her another wine cocktail. (Testimony of Watts.)
Officer Watts then asked Peaches what time she got off work and if she had a date. She told him the time, and that she did not have a date. He asked if she liked to have a good time, to which she replied, "Yes, how much money have you got?" (Tr.33) He answered "How much will it take?" and offered her $20. She said "that's not enough." He asked, "[H]ow about $30?" (Tr.33) She agreed. He asked, "What will $30 get me?" and she replied, "Half and half," which--in street talk--means oral and sexual intercourse. (Testimony of Watts.)
Officer Ashcroft, who had entered the premises with Officer Watts, had seated himself at the bar. He was approached by Laurie Thornton, another female dancer employed by respondent, who asked, "How about buying me a drink?" or words to that effect. He declined, after which she approached another patron at the bar. (Testimony of Ashcroft.)
No evidence was adduced to show that respondent, through its owners or managers, knew that its employees were asking or soliciting customers to purchase alcoholic beverages for the employees' consumption.
II.
Alleged Violations Occurring On February 19, 1981
In February, 1981, DABT launched another investigation of the licensed premises. On February 19, 1981, Beverage Officers Fred Dunbar and Rufus Blanton entered the licensed premises, set at a table near the dance stage, and ordered beers from Helen Davis, a waitress employed by respondent. McKinney Rojas, a/k/a Tia Marie, a dancer employed by respondent, approached them and sat down at their table. Almost immediately, waitress Davis appeared and asked "Are you going to buy Ti [meaning Tia Marie] a drink?" (Tr.-73) Officer Dunbar replied, "Ti ain't said nothing about wanting a drink." (Tr.-73) Tia Marie then explained:
Fred, let me explain it to you.
This is a beer and wine bar, and it's against the rules for us to drink beer.
What I'd like for you to do is buy me
a bottle of champagne. Helen will bring it to us in a bucket of ice with two glasses and we can sit here and drink it together, and we can talk.
(Tr.-73) Officer Dunbar agreed and ordered a small (6.3 oz.) bottle champagne for $10.00. Waitress Davis then brought it to the table with a bucket of ice and one glass. He continued to drink his beer; she drank the champagne and remained at the table for approximately 45 minutes, then excused herself because it was her turn to dance on stage. (Testimony of Dunbar, Blanton.)
Tia Marie then returned to the beverage officers table. Almost immediately waitress Davis appeared and asked Officer Dunbar if he was going to buy Tia Marie another bottle. He declined. Tia Marie then stood up, and asked Officer Blanton if he was going to buy her a bottle. Waitress Davis asked him the same question. He agreed, waitress Davis brought another bottle of champagne, and he paid her $10.00. During this conversation, Tia Marie explained to the officers that she was getting a 25 percent commission for the drinks customers bought for her; that they were really paying for her company, not for the champagne. (Testimony of Blanton, Dunbar.)
During that same evening, Beverage Officer Watts entered the licensed premises and sat at another table near the dance stage. He ordered a beer from waitress Davis. Shortly thereafter, "Sabal," a female dancer employed by respondent, sat down at his table and engaged him in conversation. A few minutes later, waitress Davis appeared and asked if he wanted to buy Sabal a drink. He turned to Sabal and asked her what she wanted. She replied, "Helen [Davis] can explain it to you." (Tr.-46) Ms. Davis then explained that he could buy a bottle of champagne for Sabal for $10.00. He agreed. (Testimony of Watts.)
After Sabal finished drinking the champagne, she asked Officer Watts if he would buy her another bottle. He replied that it was a rather steep price, that he might agree if she got something out of it. After being assured that she received a commission of $3.00 per bottle, he agreed to purchase her another for $10.00. Waitress Davis, again, brought it to the table. After finishing her second bottle, Sabal told Officer Watts that it was her turn to dance and went to the nearby stage. (Testimony of Watts.)
III.
Alleged Violations Occurring On February 26, 1981
On February 26, 1981, the three beverage officers (Watts, Dunbar and Blanton) returned to the licensed premises. Officers Dunbar and Blanton again sat at a table near the stage, Officer Watts sat at another. While seated at their table, Officers Dunbar and Blanton were approached by "Dominique" (later identified as Madeline C. Droege), a female dancer employed by respondent. Dominique was wearing black panties, stockings with a garter belt, high-heeled shoes, and a silk elastic-like material covering her breasts. Almost immediately, waitress Davis appeared and asked, "Are you going to buy Dominique a drink?" (Tr.-77) Officer Dunbar replied, "We're not going to go through all that again are we?" (Tr.-77) Waitress Davis laughed, and Dominique said she would like to have some wine. But before he agreed to buy her wine, the conversation turned to the subject of lap dancing. (Testimony of Dunbar, Blanton)
Dominique told Officer Blanton that she would perform a lap dance for him for $5.00. He agreed. When the next song started, she removed the silk material covering her breasts and straddled Officer Blanton's lap. Wearing only panties and high-heeled shoes, she simulated sexual intercourse by rotating and gyrating the lower part of her body. During the lap dance, she massaged her breasts with her hands. Later that evening she also performed the same type of dance on Officer Watts, for which she was also paid $5.00. (Testimony of Blanton, Watts.)
After Dominique departed, Michelle Smith, another female dancer employed by respondent, approached the officers' table and asked if she could join them. They agreed, she sat down, and then waitress Davis appeared, asking, "Are you going to buy Michelle a bottle of champagne?" (Tr.-80) At first, he resisted. But Miss Smith encouraged him, "Oh, come on, Fred, buy me a bottle of champagne. (Tr.-81) He finally agreed, and waitress Davis brought a bucket of ice, a glass, and a small bottle of champagne, for which he paid $10.00. Miss Smith also told the officers that she received a commission on the champagne sales. After drinking half of the bottle she left the table, explaining that she had to go backstage. (Testimony of Dunbar.)
She returned to the table a few minutes later, finished the bottle of champagne, and requested another. At the same time, she turned the bottle upside down in the ice bucket and admitted that this was a signal to the waitress that she wanted another bottle. Waitress Davis then returned to the table and--at Miss Smith's request--Officer Dunbar purchased her a second bottle of champagne. She later requested that he purchase a third bottle, but he declined, explaining that he was out of money. She then left the table and performed a striptease on the nearby stage. (Testimony of Dunbar.)
Before leaving the premises, the two officers were approached by Tia Marie, the same dancer whom they had met on February 19, 1981. She sat at the table and asked Officer Blanton to buy her a drink. He agreed and waitress Davis returned with a bottle of champagne. Tia Marie consumed the champagne, then turned the bottle upside down on the ice bucket. (Testimony of Dunbar, Blanton)
That same evening, Office Watts--who had seated himself at another table nearby--was also approached by Dominique, who sat down and engaged him in conversation. Waitress Davis soon appeared and asked if he would like to buy the lady a drink. He said the lady had not asked for one; Dominique responded that she would like to have one. She then ordered a bottle of champagne for which Officer Watts paid the waitress $10.00. (Testimony of Watts.)
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57 Fla. Stat. (1981).
Section 561.29(1)(a), Florida Statutes (1981) authorizes DABT to revoke or suspend an alcoholic beverage license when it is shown that the licensee, or its agent or employee, while on the licensed premises, violated any law of the state.
Section 796.07(3), Florida Statutes (1981), makes it unlawful to offer to commit or to commit, or to engage in, prostitution, lewdness, or assignation. Prostitution includes the giving or receiving of the body for sexual intercourse for hire; lewdness includes any indecent or obscene act. Section 796.07(1)(a)- (b), Fla. Stat. (1981).
Section 562.131 makes it unlawful for any licensee, or its employee, agent, servant, or entertainer employed at the licensed premises, to beg or solicit any customer or visitor to purchase any beverage, alcoholic or otherwise for such employee, agent, servant, or entertainer.
Intentional misconduct by a licensee is not an essential element. Where the unlawful acts are committed by a licensee's employees, the beverage license may be disciplined upon a finding that the licensee was negligent or lacked due diligence in supervising the licensed premises. Simple negligence is all that need be shown. See, Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962); Lash Inc. v. State Department of Business Regulation, 411 So.2d 276 (Fla. 3rd DCA 1982); G & H of Jacksonville, Inc. v. State, Department of Business Regulation, 371 So.2d 139 (Fla. 1st DCA 1979).
License revocation proceedings, such as this, are penal in nature.
The prosecuting agency must prove its charges by clear and convincing evidence-- by evidence as substantial as the consequences. See, Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2nd DCA 1966); Walker v. State, 322 So.2d 612 (Fla. 2nd DCA 1975); Howling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).
Measured by these standards, the evidence demonstrates that, on July 3, 1980, respondent's employees violated Sections 796.07 (3)(a) and 562.131 as alleged in Counts I, II, and IV, Notice to Show Cause, dated August 11, 1980. Count III is unproven and must be dismissed.
As to the charges contained in the second Notice to Show Cause, dated September 15, 1981, the evidence established violations of Section 562.131 as alleged in Counts I-XIII. Counts XIV and XV concern the lap dances performed by Dominique on the laps of Officers Blanton and Watts. A decision on whether something is obscene must be made with regard to community standards. Golden Dolphin No. 2, Inc. v. State, Division of Alcoholic Beverages end Tobacco, 403 So.2d 1372, 1374 (Fla. 5th DCA 1981). Here, no evidence was presented showing contemporary community standards. Neither is there evidence that the dances offended any customers. DABT argues that lap dancing was considered obscene by the court in G & H of Jacksonville, Inc. supra. But the court's opinion does not describe the complained of lewd and lascivious behavior and cannot substitute for evidence which is otherwise required. Charges XIV and XV must, therefore, be dismissed.
The violations of state law described above were open and flagrant, and occurred in a repeated, persistent, and practiced manner. They support an inference that respondent either condoned their commission or allowed them to occur through its own negligence or lack of due diligence in supervising its employees. These violations of state law, therefore, also constitute violations of Section 551.29 and provide a basis for disciplining respondent's license.
Penalty. Respondent's violations of the beverage law were repeated and flagrant. Revocation of its alcoholic beverage license is warranted.
Ruling on respondent's Exhibit Nos. 2-4 was reserved. These exhibits, which consist of court records pertaining to a related criminal prosecution of respondent, are now received into evidence.
Both parties submitted proposed findings of fact and conclusions of law. Those proposed findings which are incorporated herein, are adopted; otherwise they are rejected as unsupported by the evidence or unnecessary to resolving the issues presented.
That respondent's alcoholic beverage license be revoked for multiple violations of the Beverage Law.
DONE and RECOMMENDED this 20th day of April, 1983, in Tallahassee, Florida.
R. L. CALEEN, JR. Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1983.
James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Samuel S. Henderson, Esquire and Jerrold A. Bross, Esquire
Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and
