STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-2706

) KATHERINE J. AND GUY H. SUTTON ) d/b/a GUY'S TAVERN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before Marvin

1. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on November 17, 1983, in Tampa, Florida.

   
   

   APPEARANCES

   
   

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

   Staff Attorney

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

   
   

   For Respondents: Joseph R. Fritz, Esquire

   4204 North Nebraska Avenue Tampa, Florida 33603

   
   

   ISSUES AND BACKGROUND

   
   

   This case concerns the issue of whether the Respondents' beverage license should be suspended, revoked or otherwise disciplined for permitting their licensed premises to be used for the purpose of prostitution and for gaining profit from that prostitution. At the formal hearing, the Petitioner called as witnesses, Beverly Fraley, Alfred Stone, and Raphael Grulau. The Respondents presented no evidence. The Petitioner offered and had admitted over the objection of the Respondent, one tape recording of conversations which occurred inside the licensed premises as a part of the undercover investigation by the Hillsborough County Sheriff's Office.

   
   

   Counsel for the Petitioner and counsel for the Respondents submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that these proposed findings and conclusions are inconsistent with the findings and conclusions contained in this order, they were considered by the Hearing Officer and rejected as not being supported by the evidence or as being unnecessary to the resolution of this cause.

   FINDINGS OF FACT

   
   

   1. At all times material to this proceeding, Katherine J. and Guy H. Sutton were the holders of a valid, current beverage license No. 39-1792, Series 2COP. This license was issued to a licensed premises called Guy's Tavern located on Highway 301, South, in Riverview, Florida.

      
      

   2. On May 12, 1983, Detective Beverly Fraley of the Hillsborough County Sheriff's Office, went to the licensed premises in an undercover capacity to investigate possible prostitution activity. On this particular evening, Detective Fraley was accompanied by two other detectives of the Hillsborough County Sheriff's Office in a backup capacity. Prior to entering the licensed premises, Detective Fraley was fitted with a body bug for the purpose of recording any conversations that she might have in the licensed premises during the course of the investigation. When Officer Fraley arrived, the two backup detectives were inside the licensed premises shooting pool.

      
      

   3. Upon entering the licensed premises, Officer Fraley went to the bar and ordered a drink. After obtaining her drink, she was approached by a white male, who called himself "Stogie." While talking with Stogie, another white male, who called himself "Turkey" approached Officer Fraley from behind and placed his arms around her. She had never met Turkey before. Officer Fraley pushed Turkey away and said "Keep your hands off the merchandise."

      
      

   4. Shortly after her encounter with Turkey, Officer Fraley began shooting pool with Stogie and the two undercover detectives. After a short time, she left the licensed premises with Detective Grulau and after a few minutes the two of them reentered the licensed premises. After reentering, Officer Fraley went to the ladies' rest room and when she came out, she was called over to the bar area by the owner, Guy Sutton, who was behind the bar. As Officer Fraley approached the bar, Mr. Sutton stated, "If you're going to fuck here you've got to pay me." Officer Fraley asked what he meant and he told her that she would have to pay him $5.00 for every trick" she took out of the bar. "Trick" is a slang or street term used to describe an act of prostitution. Mr. Sutton then identified himself as the owner and said that the other women in the bar also paid. Officer Fraley then gave Mr. Sutton a $5 bill. After paying Mr. Sutton, Officer Fraley turned to the bartender, Irene Springer, who was present during this conversation and asked if in fact the other women in the bar were required to pay. Irene Springer stated that the other women in the bar did in fact have to pay $5.00 per trick and a group of white females sitting at a table near the bar responded, "That's right honey."

      
      

   5. Later that evening, Officer Fraley left with the other undercover detective. When they returned, Guy Sutton was in the pool room area. Officer Fraley intentionally did not go over to Sutton. Shortly after she returned, Sutton came over to her and told her that she owed him another $5.00. He then told her that she would be better off paying him $25.00 per week rather than

      $5.00 per trick. He also stated that she had the potential to make $300 or $400 per week in his place.

      
      

   6. Guy's Tavern has a reputation in the community as a bar where prostitutes can be picked up.

      
      

      CONCLUSIONS OF LAW

      
      

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

   8. Section 561.29(1)(a), Florida Statutes (1981), empowers the Division of Alcoholic Beverages and Tobacco to revoke or suspend an alcoholic beverage license when it finds that the licensee, or its employees, while in the scope of employment, have violated the laws of Florida on the licensed premises.

      
      

   9. Count I of the Notice to Show Cause charges the Respondents with a violation of Florida Statute, 796.01 (1981) which makes it unlawful for a person in this State to keep a house of ill fame, resorted to for the purpose of prostitution or lewdness.

      
      

   10. Count II of the Notice to Show Cause charges the Respondents with a violation of Florida Statute 796.07(2)(c)(1981), which provides:

       
       

       It shall be unlawful in this state to receive, or to offer or agree to receive, any person into any place, structure, building, or convenience for the purpose of prostitution,

       lewdness, or assignation or to permit any person to remain there for such purpose.

       
       

   11. The third count of the Notice to Show Cause charges the Respondent with a violation of Florida Statute 796.05 which provides:

       
       

       After May 1, 1943 it shall be unlawful for anyone to live off the earnings of any person with the knowledge or reasonable cause to believe that such earnings are derived from prostitution.

       
       

   12. In order to establish a violation of Section 796.01, Florida Statutes, the Petitioner must establish three elements. Those elements are the ill fame of the place in question, its use for prostitution or lewdness, and its maintenance by the defendant. Campbell v. State, 149 Fla. 701, 6 So.2d 828 (Fla. 1942). In the instant case, the uncontradicted evidence clearly establishes that the Respondent, Guy Sutton, was the owner and operator of the licensed premises. The uncontradicted evidence also establishes that the licensed premises had a reputation as a place where prostitutes could be obtained. By his own statements and admissions, the Respondent established that he was in fact operating the licensed premises as a place for the use of prostitutes in obtaining tricks and soliciting. Under these facts, the Respondent is therefore guilty of the violation of Section 796.01, Florida Statutes, as alleged in Count I of the Notice to Show Cause.

       
       

   13. By requiring that Officer Fraley pay him money in order to solicit for prostitution and obtain tricks on the licensed premises, the Respondent clearly offered or agreed to receive a person on the licensed premises for the purpose of prostitution. On two occasions, when he felt that Officer Fraley had left the bar for the purposes of committing prostitution with the two men that she left with, required her to pay him $5.00 on each of those two occasions. She in fact paid him the $5.00 and he encouraged her to pay him a weekly sum of $25.00 rather than the $5.00 per trick which he was requiring. The Respondent even went so far as to tell the undercover detective that she could make as much as

       $300 or $400 a week in his place. These facts clearly establish violations of

       Florida Statutes 790.07(2)(c) and 796.05 as alleged in Counts II and III of the Notice to Show Cause.

       
       

   14. The evidence was insufficient to establish a violation of Count IV of the Notice to Show Cause. This count charged the Respondents with permitting a person under the age of 19 to consume alcoholic beverages on the licensed premises.

       
       

   15. Penalty. License revocation is an extreme and drastic penalty which should be applied only in the most flagrant cases. Taylor v. State Beverage Department, 194 So.2d 321 (Fla. 2d DCA 1962). Here the Respondent himself engaged in encouraging prostitution on his licensed premises and in attempting to profit from or live off the earnings of persons committing prostitution in and around his licensed premises. This shows a clear and intentional disregard of the laws of the State of Florida and his affirmative duty as a licensee to prevent his licensed premises from being used for illegal activity. Under these circumstances, it is concluded that an appropriate penalty is the revocation of the Respondents' beverage license.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered revoking Respondents' beverage license No. 39-1792, Series 2COP.

DONE and ORDERED this 30th day of December, 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 30th day of December, 1983.

COPIES FURNISHED:

James N. Watson, Jr., Esquire Staff Attorney

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

Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603

Howard M. Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

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

Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 83-002706

Orders for Case No: 83-002706