STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARING

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

)

Petitioner, )

)

vs. ) CASE NO. 89-0476

) COWGIRLS INC., d/b/a SHOW GIRLS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on April 11, 1989 at Tampa, Florida.

APPEARANCES

For Petitioner: Harry Hooper, Esquire

Department of Business Regulations 725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Edwardo R. Latour, Esquire

905 East Lake Street, Suite 640 Tarpon Tower

Tarpon Springs, Florida 34689-4815

By Notice To Show Cause dated September 27, 1988, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Cowgirls, Inc., d/b/a Show Girls, Respondent. As grounds therefore it is alleged that agents, servants or employees of Respondent offered to commit prostitution, committed an unnatural and lascivious act, exposed or exhibited sexual organs in a vulgar or indecent manner, solicited a customer to purchase a beverage, and did tend to annoy the community or injure the health of the citizens in general or to corrupt the public morals.

At the hearing, Petitioner called eight witnesses, Respondent called one witness and seven exhibits were admitted into evidence. Proposed findings have been submitted by the parties. Treatment accorded those proposed findings is contained in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. Judith Ann Rodriguez is the sole shareholder of Cowgirls Inc. which she purchased some four years ago as a topless bar. Cowgirls, Inc., d/b/a Show Girls holds a series 2-COP license issued by the Division of Alcoholic Beverages and Tobacco.

   
   

2. Prior to the purchase of Cowgirls, Inc., Ms. Rodriguez had operated two topless bars in conjunction with her former husband.

   
   

3. Cowgirls, Inc. owns and operates a bar located at 12061 66th Street North Pinellas Park, Florida, known as Show Girls which is a topless bar featuring dancing girls.

   
   

4. Cowgirls, Inc. leases the premises from the owner of a strip shopping center known as Pine Lakes Center.

   
   

5. David Milchan is chief of Police of Pinellas Park and since 1983 Pinellas Park Police have received more than 100 requests for public intervention due to disturbances emanating from the premises or parking lot in the vicinity of Show Girls. Exhibits 2 through 6 were admitted as Police reports of this nature but the hearsay objection thereto was sustained as to the truth of the matter contained in the reports which was not additionally corroborated by admissible evidence. It is noted that the majority of those Police reports originated with a call from Show Girls requesting assistance with an unruly patron.

   
   

6. Chief Milchan has been in the bar at Show Girls and observed the activities conducted therein with scantily clad dancers performing on a small stage. Chief Milchan has been approached while in Show Girls and offered a "lap dance" which was described as a female dancer sitting on the lap of a male patron and gyrating in a manner intended to arouse lust in said patron.

   
   

7. On December 15, 1987, one Mikiko Hunsberger, a dancer in the licensed premises, approached Detective Allen Strope, then a plain clothes detective in the Pinellas Park police department and asked if he wanted a table dance for

   $5.00 or if he wanted to touch her "pussy" for $10.00. She then offered Detective Strope a "blow job" for some cocaine. Strope obtained a motel room and some ersatz cocaine and Hunsberger and another dancer from the license premises later joined him at the motel. Hunsberger tasted the ersatz cocaine, declared it of insufficient quality and offered to give the "blow job" for $100. She was then arrested.

   
   

8. On April 6, 1986, Regina Black, a dancer at the licensed premises performed a lap dance for Pinellas County Detective Thurman at the licensed premises and said that she would go "all the way" for $100.00. Thurman understood "all the way" as being an offer of sexual intercourse.

   
   

9. Detective Michael Sanderling of the Pinellas County Sheriffs Office entered the licensed premises on April 6, 1986 with Detective Thurman. Sanderling observed one dancer uncover her breast while dancing and put a cocoa cola bottle between her breasts on which she simulated fellatio. Later dancer Judy Rea Fentress performed a lap dance for Detective Sanderling and offered a quick "blow job" for $30-35.

10. On April 7, 1986 dancer Blanca Hernandez performed two lap dances on law enforcement Investigator Gordon Myers and requested that Myers purchase an alcoholic beverage for her.

    
    

11. During 1984, Sonja Bramley operated a beauty parlor adjacent to the premises occupied by Respondent. Occasionally she was offended by Show Girls' patrons outside of her establishment. On one occasion four patrons from Show Girls pushed her door open and asked if she cut pubic hair. Bramley stayed open in the evening until 8:00 p.m. or later, but finally closed her business because of her concerns for her safety and the safety of her customers in the evening from the patrons of Respondent.

    
    

12. On one occasion, drunken patrons from Show Girls started a fight in Sonny's, a restaurant across the street from Show Girls. Others testified to the beer cans and debris in the parking lot outside the licensed premises, to the fights and gun shots outside the premises and that unsavory characters frequented Show Girls. The licensee testified that no canned beer was sold at her establishment and that her employees frequently called the Police to control patrons who became unruly and refused to leave the premises quietly.

    
    

13. Victor Rodriguez owns Pine Lake Center and Respondent is one of his tenants, he has tried unsuccessfully to get Respondent to relocate the bar somewhere else and contends that rowdiness, fights, drunken behavior, gun shots and litter emanating from Respondent's location has caused his occupancy rate to fall to the point he has only four of thirteen units in the center rented.

    
    

14. Judith Ann Rodriguez, sole owner of Respondent, presented as Exhibit 7 a copy of a contract similar to those signed by all dancers at Show Girls. This contract purports to make all dancers at Show Girls independent contractors and not employees or agents of Respondent. While one section of Exhibit 7 states the manner and means of performing such professional dances are under the sole control of the Professional Dancer, another section of this contract provides the dancing routines shall meet the approval of the Cocktail Lounge.

    
    

15. From her long experience in operating topless bars, it is inferred that Respondent was or should have been aware that lap dancing, table dancing and prostitution are not uncommon at topless bars.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

17. Since this is a license revocation proceeding, the Petitioner has the burden to prove the charges alleged by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987)

    
    

18. Petitioner presented no evidence with respect to the commission of a lascivious act (Count 5) or of maintaining a nuisance (Count 9) and those counts must be dismissed

    
    

19. With respect to Count 6, that Respondent's agents servants or employees exposed or exhibited sexual organs in a vulgar or indecent manner, contrary to Section 800.03, Florida Statutes, the only evidence presented was that one dancer exposed her breast while dancing. This does not constitute the exposure of sexual organs. Since it appears to be legal for topless dancers to

    perform with only pasties covering the nipple it would require a conclusion that the nipple constitutes a sexual organ to find Count 6 proven. Such a conclusion is not warranted.

    
    

20. The evidence is clear and convincing that the licensee did tend to annoy the community or injure the health of the citizens in general or to corrupt the public morals as alleged in Count 8. Similarly, is the evidence that Blanca Hernandez solicited the purchase of an alcoholic beverage from a customer as alleged in Count 7.

    
    

21. Respondent's total defense is that these dancers are independent contractors and she is not responsible for their actions. Even as independent contractors, they are employed by Respondent to dance in the bar. Since their dance routines were subject to the approval of the licensee, they were employees of the licensee and not independent contractors because their performances were controlled by the licensee. Brewer v. Cueto, 379 So.2d 22 (Fla. DCA 1980). Whether the actions of those dancers may be imputed to the corporate licensee depends upon whether the licensee knew or should have known of the illegal activities carried on by the topless dancers. In this connection, it is significant that Ms. Rodriguez has owned Cow Girls, Inc. for four years and operated two topless bars before acquiring Show Girls. She obviously was made aware when any of the dancers were arrested by the Police for soliciting for prostitution, lewdness or any other offense. In her own testimony, Ms. Rodriguez acknowledged that these dancers come and go, that when arrested she leaves them on their own, and they are not rehired if convicted. It is clear that the allegations here made that these dancers committed lewd acts and solicited for prostitution was not an isolated incident but repeated many times. As stated by the Court, in Lash Inc. v. State Department of Business Regulations, 411 So.2d 276 (Fla. 3rd DCA 1982):

    
    

    Under S.561.29(1), where the unlawful activity is committed by the licensee's agent, simple negligence is sufficient for revocation.

    Admittedly the courts have refused to uphold revocations when the evidence shows only that on one occasion the licensee's employees violated the laws and that the licensee otherwise took measures to comply with them

    
    

    (Citations omitted). Where, however, the laws are repeatedly and flagrantly violated by the employees an inference arises leading to the conclusion that such violations are either fostered, condoned, or negligently overlooked by the licensee, notwithstanding his absence from the premises when the violations occurs. (Citations omitted). Consequently, if the evidence supports the conclusion that the licensee failed to exercise ordinary care in the maintenance of the licensed premises or in the supervision of his employees, he can be found negligent and his license revoked. (Citations omitted).

    
    

    Where the violations are as here committed in a persistent and recurring manner consisting of more than one isolated incident, the Courts

    have not hesitated to find that such violations were either fostered, condoned, or negligently overlooked by the licensee, even though he may have been absent at the time of the commission of such (Citations omitted).

    
    

22. From the foregoing, it is concluded that Petitioner has proven by clear and convincing evidence that agents, employees, or servants of Respondent have solicited for prostitution in violation of Section 796.07(3)(a), Florida Statutes; have solicited for customers to purchase alcoholic beverages for them in violation of Section 562.131(1), Florida Statutes; and that the licensed premises did tend to annoy the community or injure the health of the citizens in general or to corrupt the public morals in violation of Section 823.01, Florida Statutes. It is therefore,

RECOMMENDED:

That the license of Cowgirls, Inc., d/b/a Show Girls, be revoked. DONE and ORDERED this 17th day of May, 1989, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1989.

APPENDIX

Treatment Accorded Petitioner's Proposed Findings

1. Included in HO #1.

   
   

2. Included in HO #5.

   
   

3. Included in HO #7.

   
   

4. Included in HO #8.

   
   

5. Included in HO #11.

   
   

6. Included in HO #12.

   
   

7. Included in HO #9, except second sentence which was not supported by evidence presented at the hearing.

   
   

8. Included in HO #9.

9. Included in HO #9.

   
   

10. Included in HO #10.

    
    

11. Included in HO #1, #14 and #15.

Treatment Accorded Respondent's Proposed Findings

1 and 2. Included in HO #1.

1. Included in HO #3.

   
   

2. Included in HO #1.

   
   

3. Included in HO #3.

   
   

4. Included in HO #4.

   
   

5. Included in HO #5.

   
   

6. Rejected insofar as stating the officers did the soliciting.

   
   

7. Accepted.

   
   

8. Rejected.

   
   

9. Included in HO #11.

   
   

10. Rejected.

    
    

11. Accepted.

14 and 15. Included in HO #14.

1. Accepted as testimony of witness.

   
   

2. Rejected. Only those convicted and discharged.

   
   

3. Rejected.

   
   

4. Rejected for paragraph 1, accepted for paragraph 5.

   
   

5. Rejected.

   
   

6. Accepted.

   
   

7. Rejected.

COPIES FURNISHED:

HARRY HOOPER, ESQUIRE

DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH STREET TALLAHASSEE, FLORIDA 32399-1007

EDUARDO R. LATOUR, ESQUIRE 905 EAST LAKE STREET

SUITE 60 TARPON TOWER

TAMPA, FLORIDA 34689-4815

VAN B. POOLE, SECRETARY DEPARTMENT OF BUSINESS REGULATION THE JOHNS BUILDING

725 SOUTH BRONOUGH STREET TALLAHASSEE, FLORIDA 32399-1000

JOSEPH A. SOLE GENERAL COUNSEL

DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH STREET TALLAHASSEE, FLORIDA 32399-1000

Docket for Case No: 89-000476

Orders for Case No: 89-000476