STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF )

ALCOHOLIC BEVERAGES AND )

TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2913

) SANDRA D. HOSKINS and MICHAEL ) MANCUSO, d/b/a SWEETHEARTS, )

)

)

Respondent. )

)

RECOMMENDED ORDER

On August 2 and 3, 1990, a formal administrative hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Nancy C. Waller, Esquire

Assistant General Counsel Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Louis Kwall, Esquire

Gross and Kwall, P.A.

133 North Fort Harrison Avenue

Clearwater, Florida 34615 STATEMENT OF THE ISSUE

At issue in this case is a Notice to Show Cause issued by the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT), charging the Respondents, Sandra Hoskins and Michael Mancuso, d/b/a Sweethearts (the licensees), with two counts of keeping a house of ill fame in violation of Section 796.01, Fla. Stat. (1989).

PRELIMINARY STATEMENT

At the final hearing in this case, the DABT presented the testimony of several undercover and uniformed Clearwater Police Department policemen and Pinellas County Sheriff deputies and several dancers who were performing at

Sweethearts on April 13 and August 25, 1989. The DABT also introduced four exhibits in evidence. The licensees presented no testimony but introduced one exhibit.

At the conclusion of the hearing, the parties were given ten days to submit proposed recommended orders. However, without objection, the licensees later requested additional time, namely ten days after submission, to submit as additional evidence a copy of an anticipated decision of the Pinellas County Court in a related matter. When the additional evidence was proffered, the DABT objected on grounds of relevance, and an order was entered receiving the exhibit in evidence over objection and requiring proposed recommended orders to be filed on or before October 22, 1990.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 90

FINDINGS OF FACT

1. The Respondents, Sandra Hoskins and Michael Mancuso, (the licensees), hold license number 62-957, Series 4

   beverages by the drink for consumption on the premises of Sweethearts, located at 408 U.S. 19 South, Clearwater, Florida.

   
   

2. Sweethearts is known as a bar where, in addition to buying alcoholic beverages, the mostly male patrons can watch "exotic dancing" on stage and pay

   $5 plus tip for a "lap dance." The dancers are physically attractive females dressed in underwear or "T-back" bathing suits. 1/ They are engaged by the management of Sweethearts to perform at Sweethearts. As they dance on stage, the disc jockey on duty introduces them by their stage names to the patrons present and encourages the patrons to ask the dancers to perform "lap dances" for them personally. The dancers also directly solicit "lap dances" from the customers. At the end of each shift, each dancer "tips out" $10 to the "house," i.e., pays the licensees $10, and "tips out" $5 to the disk jockey.

   
   

3. As evidenced by what took place at Sweethearts on April 13 and August 25, 1989, a "lap dance" typically lasts for one song played by the disk jockey. The dancer escorts the patron to one of the booths lining the perimeter walls of the bar area, sits the patron down near the edge of the booth bench and begins "dancing." During the "dance," which is performed to the rhythm of the music, the dancer rubs various parts of her body, including the genital area, buttocks and breasts, against various parts of the body of the customer, including his genital area and face. Although the customer remains fully dressed during the "dance," and the dancer does not remove any clothing (i.e., she remains dressed either in underwear or in her "T-back" bathing suit), the "dance" is intended to simulate various sex acts, and purpose of the "dance" to arouse the customer sexually. Sometimes, the "dancer" fondles herself and acts as if she herself is becoming sexually aroused by the "dance." Sometimes, the customer rubs the breast area of the "dancer" or grabs her buttocks in the area of the anal cleft, and the "dancers" typically do little to stop or deter this behavior.

   
   

4. Although the "lap dancing" occurs in a part of the bar where the lighting is red and subdued, it is highly implausible that the licensees, if on the premises, or the licensees' representative(s) on the premises would not know that the "lap dancing" described above was taking place on the premises. It is open and notorious.

5. There was some evidence that there might be a nominal official policy at Sweethearts prohibiting patrons from touching the dancers. But the evidence is clear that management "winks at" violations of this official policy, if there indeed is one, and management policies in place at Sweethearts encourage the dancers to allow the patrons to touch them. (Allowing it to continue increases the chances of getting tips from customers such as these.)

   
   

   CONCLUSIONS OF LAW

   
   

6. Section 561.29(1), Fla. Stat. (1989), provides that the DABT has full power and authority to revoke or suspend a beverage license when it is determined that the licensee or his or her agents, officers, servants, or employees violated any of the laws of this state on the licensed premises.

   
   

7. Section 561.29(3), Fla. Stat. (1989), also provides that the DABT may impose a civil penalty against the licensee for any violation, not to exceed

   $1,000 per violation arising out of a single transaction.

   
   

8. Section 796.01, Fla. Stat. (1989), makes it a third degree felony to keep a house of ill fame which is resorted to by persons for the purpose of lewdness. 2/

   
   

9. Section 796.07(3)(a), Fla. Stat. (1989), makes it unlawful to offer to commit or to engage in lewdness.

   
   

10. Section 796.07(1)(b), Fla. Stat. (1989), defines the word "lewdness" to include "any indecent or obscene act."

    
    

11. Black's Law Dictionary (5th Ed. 1979) defines the word "lewd" as follows:

    
    

    Obscene, lustful, indecent, lascivious, lecherous. The term imports a lascivious intent. It signifies that form of immorality which has relation to moral impurity.

    
    

12. It is concluded that "lap dancing" of the kind taking place at Sweethearts on April 13 and August 25, 1989, constitutes "lewdness" and that Sweethearts was a house of ill fame resorted to by persons for the purpose of lewdness under Section 796.01, Fla. Stat. (1989). See G & B of Jacksonville v. Dept. of Business Reg., 362 So. 2d 951 (Fla. 1st DCA 1978).

    
    

13. The licensees in this case argue from the decision in Campbell v. State, 331 So. 2d 289 (Fla. 1976), that the activity taking place at Sweethearts cannot be termed "lewd" under Section 796.01, Fla. Stat. (1989). But the Court in Campbell addressed a specific statute, Section 798.02, Fla. Stat., and specific facts. Section 798.02 made it a crime "if any man or woman, married or unmarried, engages in open and gross lewdness and lascivious behavior "

    (Emphasis supplied.) In Campbell, the evidence was that the defendant, a waiter in a dimly lit homosexual bar, while holding a serving tray with one hand, reached under the table where an undercover policeman was sitting and fondled the policeman's genital area with his other hand. The whole incident lasted for about five seconds. Citing Pitchford v. State, 65 Fla. 146, 61 So. 243 (Fla.

    1931), the Campbell court held that, to be a crime under 798.02, the defendant's conduct must be "extremely indecent, immoral, and offensive." The narrow holding in Campbell was that the specific conduct in that case was not "extremely indecent, immoral, and offensive."

14. It also is noteworthy that some of the Supreme Court opinions in the Campbell case, and in the cases cited in the Campbell case, suggested that the Legislature should revisit the "vintage" morals laws and remove laws encompassing conduct no longer considered criminal. Yet the Legislature has not removed Section 796.01 (or 798.02 or any of several others making "lewdness" criminal) from the Florida Statutes.

    
    

15. The "dancers" at Sweethearts were employees of Sweethearts regardless whether they were paid a salary. See Zubi Advertising Services, Inc., v. State of Florida, Dept. of Labor and Employment Security, Div. of Unemployment Comp.,

    411 So. 2d 276 (Fla. 3d DCA 1982); Brewer v. Coeto, 379 So. 2d 1322 (Fla. 1st DCA 1980).

    
    

16. It can be inferred, as found in this case, that the licensees knew or should have known that "lap dancing" of the kind found to have taken place on April 13 and August 25, 1989, was taking place at Sweethearts. See Lash, Inc.,

v. Dept. of Business Reg., 411 So. 2d 276 (Fla. 3d DCA 1982). See also G & B of Jacksonville v. Dept. of Business Reg., 371 So. 2d 139 (Fla. 1st DCA 1979); Pauline v. Lee, 147 So. 2d 249 (Fla. 2d DCA 1962). As such, the licensees are culpably responsible for the "lap dancing" taking place at Sweethearts and for keeping a house of ill fame resorted to by persons for the purpose of lewdness.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking license number 62-957, Series 4-COP, issued to the Respondents, Sandra Hoskins and Michael Mancuso, d/b/a Sweethearts, located at 408 U.S. 19 South, Clearwater, Florida.

RECOMMENDED this 25th day of October, 1990, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 25th day of October, 1990.

ENDNOTES

1/ A "T-back" describes the bottom of the bathing suit. It consists of a waist band from which a piece of cloth just wide enough to barely cover the pubic area descends from the navel area, continues under the genital area, and comes up the back, where it is narrower, just wide enough to barely cover the anal cleft.

2/ The statute also addresses prostitution, but there was no charge or evidence of prostitution on the premises.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2913

To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Accepted and incorporated.

   2.-46. Accepted. Mostly subordinate to facts found. Incorporated to the extent not subordinate or unnecessary.

   47. Accepted but irrelevant in light of the conclusion of law that the "community standards test" does not apply.

   
   

   Respondent's Proposed Findings of Fact.

   
   

   1. Rejected as contrary to the greater weight of the evidence.

   2. Subordinate and unnecessary.

1. Accepted but irrelevant and unnecessary.

2. Rejected in part as contrary to the greater weight of the evidence and in part as conclusion of law. (The record reflects that some witnesses refused to testify, claiming a Fifth Amendment privilege.

3. First sentence, see 3., above. Second sentence: first clause, accepted but unnecessary; second clause, rejected as contrary to the greater weight of the evidence and subordinate.

4. Accepted and incorporated.

5. Rejected as contrary to facts found. There was evidence from which knowledge can be inferred or imputed.

6. Rejected as not proven by the evidence and as unnecessary.

8.-9. Rejected as contrary to facts found. On one occasion, one of the dancers wore underwear. Otherwise, accepted and incorporated.

10. Rejected as not proven by the evidence. (Neither was it proven that minors were present.)

11.-13. Accepted and incorporated.

1. Accepted but unnecessary.

2. Rejected as not proven by the evidence. 16.-19. Accepted but unnecessary.

1. First clause, accepted but unnecessary; second clause, rejected as conclusion of law.

2. Rejected as contrary to facts found.

3. Rejected as not proven by the evidence. (Neither was the contrary proven.)

COPIES FURNISHED:

Nancy C. Waller, Esquire Assistant General Counsel Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1007

Louis Kwall, Esquire Gross and Kwall, P.A.

133 North Fort Harrison Avenue

Clearwater, Florida 34615

Leonard Ivey, Director

Div. of Alcoholic Beverages and Tobacco

Dept. of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

Joseph A. Sole, Esquire General Counsel

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 90-002913

Orders for Case No: 90-002913