STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

I CAN DO, INC., d/b/a ) CLUB CHERIE'S TOPLESS GO-GO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-164

) STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION ) OF ALCOHOLIC BEVERAGES AND )

AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this case came on for formal hearing before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, in Orlando, Florida.

APPEARANCES

For Petitioner: H. Franklin Robbins, Jr., Esquire

1212 East Ridewood Street Post Office Box 3322 Orlando, Florida 32802

For Respondent: James N. Watson, Jr., Esquire

Department of Business Regulation

Division of Alcoholic Beverages and Tobacco 725 South Bronough Street

Tallahassee, Florida 32301 ISSUES

This case concerns the issue of whether the Division of Alcoholic Beverages and Tobacco properly denied the Petitioner's application for an alcoholic beverage license. The basis for the denial was a determination that a corporate officer, Cheryl Nascimento, of the applicant corporation, was not believed to be of good moral character. The Petitioner called as witnesses Wiley U. Pridgen and the Petitioner herself, Cheryl Ann Nascimento. The Petitioner also presented the testimony of Edith Juanita Meyerholz and Curtis O'Neal by way of deposition. The Respondent called no witnesses and presented evidence in the form of four exhibits, all of which were offered and admitted as joint exhibits. Joint Exhibit Number 1 is a No Information Notice, dated January 20, 1978.

Joint Exhibit Number 2 is also a No Information Notice, dated January 20, 1978. Joint Exhibit Number 3 is an Information and Order in Case No. M079-3698. Joint Exhibit Number 4 is an Information and Order of Dismissal in Case No. MO80-0008.

Counsel for both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact are not adopted in this Recommended Order, they have been rejected as being irrelevant to the issues in this cause, or as not having been supported by the evidence.

FINDINGS OF FACT

1. Cheryl Nascimento is an officer of the Petitioner, I Can Do, Inc.

   
   

2. Ms. Nascimento is an honest, hardworking, and sincere person. She is dependable as an employee and has a reputation in the community for honesty.

   
   

3. Ms. Meyerholz has known Ms. Nascimento for approximately seven years on a personal basis and never during that time observed any evidence of dishonesty in Ms. Nascimento and never heard in the community of any evidence of dishonesty on the part of Ms. Nascimento. Ms. Meyerholz described Ms. Nascimento as "beyond reproach in her integrity". Ms. Meyerholz also described Ms. Nascimento as an honest, sincere and good person.

   
   

4. Mr. Curtis O'Neal, a public accountant, has known Ms. Nascimento for approximately six years and has dealt with her in a business relationship. Mr. O'Neal also testified that during the time that he has known and worked with Ms. Nascimento, he had contact with her once or twice a month. He has never seen any evidence of dishonesty on her part, nor has he heard any statements or evidence in the community which would tend to show that Ms. Nascimento is anything other than an honest person.

   
   

5. Mr. Wiley Pridgen has known Ms. Nascimento for approximately six years, both personally and in a working relationship.

   
   

6. The evidence presented by the Division of Alcoholic Beverages and Tobacco was four arrests for violations of various Orange County Topless Ordinances. One of these arrests resulted in a conviction. The facts relating to each of those arrests are as follows:

   
   

   1. On September 10, 1977, Ms. Nascimento was arrested for permitting or allowing a lewd show in violation of an Orange County Topless Ordinance. On January 20, 1978, the

      State Attorney for the Ninth Judicial Circuit of Florida, filed a No Information Notice with regard to this particular charge. At the time of this arrest, Ms. Nascimento was bartending in a topless bar where the

      arrest occurred. She was not arrested for actually dancing in violation of the Ordinance.

      
      

   2. On September 12, 1977, Ms. Nascimento was again arrested and charged with allowing

      or permitting a lewd or obscene show in violation of an Orange County Topless Ordinance. On January 20, 1978 (the same date as the first No Information Notice) the State Attorney filed a No Information Notice on the arrest and charge of

      September 12, 1977. Also at the time of the second arrest, Ms. Nascimento was bartending and not dancing.

      
      

   3. On August 29, 1979, Ms. Nascimento was arrested again for violating Orange County Ordinance 77-8(2)(3). On advice of counsel, Ms. Nascimento entered a plea of nolo contendere to exposure of genitals and exposure of breasts. After a lengthy appeal, she was convicted and sentenced on

      September 14, 1982. Ms. Nascimento was required to pay a $100 fine.

      
      

   4. On January 1, 1980, Ms. Nascimento was arrested again for violating Orange County Ordinance 79-26 (5)(b). At the time of this arrest, Ms. Nascimento was not dancing but was sitting at the end of the bar when she was arrested for owning, operating or managing an establishment at which conduct in violation of Orange County Topless Ordinance was occurring. On May 14, 1980, the charges arising out of that arrest were dismissed.

      
      

7. Between 1977 and 1980, there were several amendments to the Orange County Topless Ordinance. There was a great deal of confusion in the business community over what was and what was not a violation of the Orange County Topless Ordinance. These ordinances changed frequently during the time period of the arrests that were made on Ms. Nascimento. Most bar owners had attorneys advising them and their employees as to what was and was not proper or legal under the various ordinance changes.

   
   

8. Cheryl Nascimento is a single divorcee and has a 13-year old son. She has custody of her son and receives no child support payments from her former husband and has not received regular child support since 1973. She is the sole source of support for both she and her son and she began working in topless bars because she had no skills or training and was unable to make enough money working in fast-food restaurants to support them. She danced topless for a period of one and a half years and has since that time worked as a bartender.

   
   

9. The Respondent presented no evidence of bad character since the date of the last arrest on January 1, 1980.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties on the subject matter of this action.

    
    

11. Section 561.15, Florida Statutes, specifies the qualifications necessary for a licensee to receive a liquor license in the State of Florida. That section provides in part:

    
    

    Licenses to corporations shall be issued only to corporations whose officers are of good

    moral character and not less than 19 years of age.

    
    

12. The sole basis for the denial of the Petitioner's application for an alcoholic beverage license was that an officer, Cheryl Ann Nascimento, of the applying corporation was not of good moral character as required by Section 561.15, Florida Statutes.

    
    

13. The preponderance of the evidence established that she is a person of good moral character and enjoys a reputation in the community for being a person of integrity and honesty.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

1. That assuming all other qualifications have been met, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, grant the Petitioner's application for an alcoholic beverage license.

DONE and ENTERED this 5th day of April, 1983, in Tallahassee, Florida.

MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1983.

COPIES FURNISHED:

H. Franklin Robbins, Jr., Esquire 1212 East Ridgewood Street

Post Office Box 3322 Orlando, Florida 32802

James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Mr. Howard M. Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Mr. Gary Rutledge Secretary

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

Docket for Case No: 83-000164

Orders for Case No: 83-000164