DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
vs. ) CASE NO. 84-0359
Respondent. )
Consistent with the Notice of Hearing dated February 14, 1984, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Jacksonville, Florida, on April 6, 1984. The issue for consideration was whether Respondent's alcoholic beverage license should be disciplined because of the misconduct of Respondent's employees as alleged in the Notice to Show Cause.
For Petitioner: Louisa E. Hargrett, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Jacob F. Miller, Jr., pro se
On April 23, 1983, Howard M. Rasmussen, Director of the Division of Alcoholic Beverages and Tobacco, Department of Business Regulation, signed a Notice to Show Cause to Respondent which outlined eight separate instances of misconduct in violation of Sections 562.131 and 798.02, Florida Statutes (1981). Specifically, the Notice alleged that on the dates set out, Respondent's employees, as alleged in each particular charge, danced in a lewd and lascivious manner in Respondent's licensed premises (seven charges) and solicited a patron to buy her a drink (one charge).
After some negotiation between the parties, Respondent, on May 15, 1983, executed a stipulation for the resolution of this case which called for Respondent to receive a letter of warning. This stipulated settlement was not accepted by Mr. Rasmussen on behalf of the Division, however, and the matter was referred to the Division of Administrative Hearings for a formal hearing.
At the hearing, Petitioner presented the testimony of Thomas L. Stout, District Supervisor with Petitioner's Jacksonville office and custodian of the records; John T. Lachman, a beverage investigator for Petitioner; and David Wilder, also a beverage investigator with Petitioner. Respondent testified in his own behalf and introduced Respondent's Exhibit A.
At all times pertinent to the allegations herein, Respondent, Jacob Francis Miller, Jr., t/a Jake's Place, held 2-COP License No. 26-00705 for the consumption on the premises and package sales, located at 315 South McDuff Avenue, Jacksonville, Florida, of beer and wine.
On January 27, 1983, John T. Lachman, an investigator with Petitioner, Division of Alcoholic Beverages and Tobacco, acting on a complaint of prostitution, lascivious conduct, and soliciting for drinks at Respondent's place of business, entered the premises in the evening, purchased a beer, and sat down at one of the tables. On this occasion, he was alone. Shortly thereafter, he was approached by a white female employee of the Respondent, Monica L. Todd, who was wearing a bikini bottom-and-top dancing outfit. She asked Lachman if she could dance for him and, when he agreed, she did so through four songs. Each dance lasted the length of one song. During each of the dances, which she accomplished while standing between his legs while he was seated on the chair, she would alternate between facing him and turning her back to him. When her back was toward him, she would rub her buttocks against his groin. After the four dances, he paid her her fee of $10.
Lachman came back to this bar on February 17, 1983. This time, he was in the company of Beverage Agent Wilder and Deputy Sheriff Bennett. The three men purchased beers and went to sit at a table. Shortly, they were approached by Maudine Smith, a white female who was wearing a bikini bottom-and-top dancing costume. She offered to dance for them, and Lachman agreed for her to do two dances, for which she charged him $5. Again, she danced between Lachman's legs while he was seated; and while her back was toward him, she rubbed her buttocks in his groin area. When she faced him, she removed her top and rubbed her bare breasts in his face.
Monica Todd also danced for Lachman on February 17, 1983. During her dance, which was accomplished between his legs while he sat on the chair, she rubbed her buttocks in his groin. There was no evidence to show that she removed her top and rubbed her breasts in his face. However, for her dance, she was paid $3.
A third dancer entertained Mr. Lachman on February 17, 1983. Linda Jean Ford came over to him, sat on his lap, and asked him if she could do a $5 dance for him. When he asked her what that was, she replied she would have to show him. He paid her the $5, whereupon she took off her bikini top and danced for him, standing between his legs and alternately rubbing her breasts in his face and her buttocks against his groin.
That same evening, Lachman also saw Ford and Smith dance for Mr. Bennett, who was sitting three to four seats (approximately 10 feet) away from him. Lachman observed Ford rub her naked breasts in Bennett's face and her buttocks against his groin while she was dancing for him. He also saw Smith rub her buttocks in Bennett's groin area during her dance.
The lighting in the bar on this occasion was good enough for Lachman to see the farthest reaches of the establishment. There were six or seven patrons in there while all this was going one--some at the bar and some at the tables attended by a bartender who was identified as Santiago Santiago. It was obvious that the bartender could see what was going on, but neither he nor anyone else in the place made any effort to stop this dancing. Respondent was not in the bar while Lachman was there on either January 27 or February 17, 1983.
Investigator Wilder, as was stated above was in Respondent's establishment with Lachman on February 17, 1983, and was treated to similar action by Ms. Smith, who did three dances for him. The first one Lachman paid for; and during her dance, she rubbed her naked breasts in his face. During the second and third dances that evening, for which Wilder himself paid her $5, she alternated rubbing her naked breasts in his face with rubbing her buttocks in his groin area. As a special added attraction during the third dance, she also put her foot up on the edge of his chair between his legs and rubbed the top of her foot against his groin.
After the third dance, Smith went away and came back about five minutes later, again asking if she could dance for Wilder. When he declined this offer, she said, "Well at least you can buy me a drink." Wilder agreed to this and gave her $2. She immediately took it, went over to the bar with it, and then took her favors off to another customer.
Respondent does not deny the occurrences alleged. He contends, however, he was not aware of it at the time or of the likelihood it would take place. He was not present in the bar on either occasion and generally works from noon to 7:00 p.m., coming in again at 2:00 a.m. to close up. Respondent opened the bar upon his separation from the Navy in 1982. It is a small neighborhood establishment that employs only one bartender. When he started his business and was approached by the girls who wanted to dance in his bar, he told them he was going to run a clean place. However, though he did no background investigation of many of the girls he hired, he was familiar enough with that type of person and their proclivities to have them sign a statement of house policies that included prohibitions against drugs, prostitution, soliciting drinks, touching of customers, and husbands or boyfriends in the bar during working hours. In light of that, it is hard to conclude he did not know the risks involved in allowing that type of person to work in the bar, especially considering his Navy service.
Respondent maintains a personal friendship with Deputy Sheriff Bennett, who comes into the bar periodically. Respondent contends he has requested that Bennett arrest any of the girls working in the bar who are seen doing the kind of activity complained of here.
Respondent also contends he is not familiar with the practices of Petitioner, and the former district supervisor's approach to him regarding these violations was foreign to him. He relates that Capt. Caplano suggested Miller "make an offer to keep [the] bar open." As a result, he signed a stipulation which called for a letter of warning and immediately terminated the dancers. When he did that, his business dropped immediately and he put the place up for sale. To facilitate the sale, his business broker advised him to start it again so that prospective buyers could see customers in the place. As soon as he did that, his proposed settlement was disapproved and a hearing was set up.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this hearing.
In the first seven allegations contained in the Notice to Show Cause, Petitioner alleges that Respondent's employee, servant, or agent, as particularly identified, engaged in lewd and lascivious conduct by performing dances for a male patron which included baring her breasts in the patron's face, rubbing her buttocks in his groin area, or both, in violation of Section 789.02, Florida Statutes (1981), which, if established, is a violation of Section 561.29(1)(b), Florida Statutes (1981).
There is no doubt that the conduct alleged took place as alleged except for the allegation in No. 3 that Monica Lynn Todd rubbed her naked breasts in Investigator Lachman's face. No evidence of that particular incident was mentioned.
However, a much larger question appears in determining if the conduct complained of here, even when proven, constitutes the "gross lewdness and lascivious behavior" proscribed by the statute under which the allegations are laid. Chapter 798, Florida Statutes (1981), is entitled "Adultery and Fornication"; and Section 798.02, the provision cited in the Notice to Show Cause, reads:
If any man and woman, not being married to each other, lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmarried, engages in open and gross lewdness and lascivious behavior, they shall be guilty of a misdemeanor of
the second degree . . . .
If the conduct in question is shown to be a violation of that statute, it may then also be a violation of Section 561.29(1)(b) as a:
(b) Violation by the licensee or, if a corporation, by any officers thereof, of any laws of this state or any state or territory of the United States.
The three operative words in question are "gross," "lewdness," and "lascivious." The term "gross" is defined in Black's Law Dictionary, 5th Edition, as: "Great; culpable. General. Absolute." The term "lewdness," as used by the statute cited, is defined as: "Gross and wanton indecency in sexual relations. . . . Gross indecency so notorious as to tend to corrupt community's morals"; and "[a]ny act which the actor knows is likely to be observed by others who would be affronted or alarmed"; and "lascivious" is defined as: Tending to excite lust; lewd; indecent; obscene; sexual impurity; tending to deprave the morals in respect to sexual relations
In the instant case, it can hardly be said, in the absence of a showing of something else, such as a baring of the genitals or a fondling of the customer by the dancer as a part of her act, that the mere bumping and grinding as evidenced here, even when the breasts are bared, constitute indecency "so notorious as to tend to corrupt community's morals." Nor can it reasonably be said that this conduct, even while exciting lust, would tend to "deprave the
morals in respect to sexual relations." No doubt, if viewed by a stricter standard than utilized here, this conduct could be characterized as lewd and lascivious, but that, by itself, according to the proscription in Section 798.02, is not sufficient. That statute also incorporates the term "gross," and it would take far more to meet that test than is shown here. Consequently, it is concluded that the dancing charged here does not violate Section 798.02 and, therefore, does not violate Section 561.29(1)(b).
However, there is also the question of the solicitations of Wilder, by Smith, then an employee of Respondent, for a drink in violation of Section 562.131(1), Florida Statutes (1981), which makes it unlawful for:
ny licensee, his employee, agent, servant, or any entertainer employed at the licensed premises or employed on a contractual basis to entertain, perform or work upon the licensed premises to beg or solicit any patron or customer thereof or visitor in any licensed premises to purchase any beverage, alcoholic or otherwise, for such licensee's employee, agent, servant, or entertainer.
Clearly, this allegation has been proven, but proof of the facts is not enough to support disciplinary action by the Division. In order to discipline Respondent's license, the Petitioner, Division of Alcoholic Beverages and Tobacco, must prove Respondent was culpably responsible for the violation alleged; that he is guilty either of intentional wrongdoing, or of condoning wrongdoing, for failing to exercise due diligence in supervising and maintaining surveillance over the licensed premises. Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980); Golden Dolphin No. 2, Inc. v. State, Division of Alcoholic Beverages and Tobacco, 403 So.2d 1372 (Fla. 5th DCA 1951); G & H of Jacksonville, Inc. v. Department of Business Regulation, Division of Beverage, 371 So.2d 137 (Fla. 1st DCA 1979). However, while forming the basis for holding the licensee vicariously culpable, these cases also stand for the proposition that the licensee is not an absolute insurer against violations of the law on his premises, even when committed by or through his employees. An isolated violation or incident is not a basis for finding the existence of a violation. Rex Allen Jones, t/a Happy Hour v. State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, Case No. AU-132, opinion filed March 30, 1984 (Fla. 1st DCA).
Here, the testimony of Investigator Lachman to the effect that the Division had received prior complaints of B-girl solicitation, confirmed by the testimony of Investigator Wilder that Smith solicited him to buy her a drink, establishes that this was not an isolated occurrence. Further, Respondent's testimony allows the conclusion to be drawn that he was familiar with the type of individuals he was hiring and their proclivity toward solicitation of one kind or another. To be sure, his own exhibit, the handwritten application form with the house rules on it, demonstrates this. His denial of knowledge, based on the fact that this never happened when he was there, is not persuasive in light of the totality of the evidence. A violation, therefore, has been shown here.
The Petitioner has filed a proposed Recommended Order which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.
Respondent pay an administrative fine of $500.
RECOMMENDED this 9th day of May 1984, in Tallahassee, Florida.
ARNOLD H. POLLOCK
FILED with the Clerk of the Division of Administrative Hearings this 9th day of May 1984.
Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Mr. Jacob F. Miller, Jr.
Mr. Gary R. Rutledge Secretary
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Mr. Howard M. Rasmussen Director, Division of Alcoholic
Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
