STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION OF ) BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1726

) DOB CASE NOS. 3-75-43A

G & B of JACKSONVILLE, INC., ) 3-75-41A

d/b/a Out of Sight, Beverage ) License No. 26-449, 4-COP, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Chris H. Bentley, held an administrative hearing in this cause on February 11, 1976, in Jacksonville, Florida.

APPEARANCES

For Petitioner: J. Riley Davis, Staff Attorney

Department of Business Regulation

For Respondent: Harry Katz, Jr., Esquire

337 East Forsyth Street Jacksonville, Florida 32202

In Division of Beverage Case No. 3-75-43A, the Division of Beverage seeks to assess a civil penalty against, or to suspend or revoke Beverage License No. 26-449, 4-COP issued to the Respondent, setting forth the following three reasons:

1. That, on or about April 16, 1975, an agent, servant or employee of the Respondent, Sarah Jane Smith, did unlawfully commit or engage in lewdness in violation of Section 796.O7(3)(a), Florida Statutes, by dancing in a topless state for Detective H. R. Hall and, while dancing, pulling down her bikini panties and exposing her vagina and pubic area and by continually rubbing her vagina, buttocks and legs on Hall's legs while dancing.

   
   

2. That, on or about April 16, 1975, an agent, servant or employee of the Respondent, Sarah Jade Smith, did unlawfully expose or exhibit her sexual organs in violation of Section 800.03, Florida Statutes.

   
   

3. That, on or about April 16, 1975, an agent, servant or employee of the Respondent, Doris Pesnell Edwards, did unlawfully commit or engage in lewdness, in violation of Section 796.07(3)(a), Florida Statutes, by continually rubbing her vagina and buttocks on the legs of H. R. Hall while dancing for Hall in a topless state.

In Division of Beverage Case No. 3-75-41A, the Petitioner seeks to assess a civil penalty against, or to suspend or revoke Beverage License No. 26-449, 4- COP for the following reasons:

(1) That, on or about May 23, 1975, an agent, servant or employee of the Respondent, Rose Estelle Carter Gibson, did unlawfully oppose a beverage enforcement agent in the lawful performance of his duties on the licensed premises, contrary to Section 843.02, Florida Statutes.

FINDINGS OF FACT

1. With regard to Counts I and II of Division of Beverage Case No. 3-75- 43A, the Hearing Officer enters the following findings of fact:

   
   

   1. On the evening of April 16, 1975, Detective H. R. Hall, of the Jacksonville Vice Squad, was working the Out of Sight bar, which is the licensed premises of Respondent.

      
      

   2. Upon entering the bar, Hall sat down and ordered a beer. Sarah Jane Smith, dressed as a topless dancer, came over to Hall and asked if she could dance for him. She told him it was $2.00 a dance which Hall Paid before she began dancing. Hall had no conversation with Smith prior to, or during her dancing, concerning Smith exposing her vaginal area.

      
      

   3. While dancing for Hall, Smith rubbed up against Hall with her vagina and buttocks and repeatedly exposed her vagina for four or five seconds by pulling down her bikini pants.

      
      

   4. Shortly after Smith danced for Hall, Dorothy Pesnell Edwards, who was dressed as a topless dancer, came over to Hall and offered to dance for him for $2.00 a dance. Hall paid her $2.00 and she began dancing. As she danced she would straddle Hall's leg and rub her vaginal area and buttocks against him. Hall did not discuss with Edwards, her touching him before she began dancing.

      
      

   5. After Edwards danced for Hall, Hall arrested both Smith and Edwards. Upon their arrests the manager of the Out of Sight bar instructed them to get their clothes from a back room of the bar and to go with the officer.

      
      

   6. On April 16, 1975, Sarah Jane Smith and Doris Pesnell Edwards, were agents, servants or employees of the Respondent, working as topless dancers in the Out of Sight bar.

      
      

2. With regard to Division of Beverage Case No. 3-75-41A, the Hearing Officer enters the following findings of fact:

   
   

   1. On May 23, 1974, Beverage Officer R.B. Bagget entered the licensed premises of Respondent at the Out of Sight bar. A female employee of Respondent, Rose Estelle Carter Gibson, required a cover charge from Bagget. Bagget told her he was a Beverage Officer and on official business and showed her his Beverage I.D. card. In a loud voice Gibson called Bagget a "Pig". In the ensuing confrontation, Bagget showed Gibson his badge and asked for her identification. Gibson stated that she had no identification and, when asked her name by Bagget, she replied, "Peanuts". Gibson took Bagget to her purse and after Gibson failed to heed two requests by Bagget to empty her purse, Bagget took the purse and emptied it. There was no identification in the purse.

      Bagget then tried to put the contents back in the purse, where upon Gibson

      grabbed his arm and told him to stay away and then threw the purse away from him. Bagget stated he was checking to see if Gibson was under age. The manager of the bar told Gibson to cooperate with Bagget.

      
      

3. The Respondent is the holder of Beverage License No. 26-449, 4-COP. CONCLUSIONS OF LAW

4. Proper notice, as required by law, was given of this hearing.

   
   

5. With regard to Division of Beverage Case No. 3-75-43A, Counts I, II and III, the Hearing Officer enters, the following conclusions of law:

   
   

   1. Section 796.07, Florida Statutes, defines the term "lewdness" as including ". . any indecent or obscene act." In Chesebrough v. State of Florida 225 So.2d 675 (1971), the Supreme Court stated that "(l)ewdness may be defined as the unlawful indulgence of lust, signifying that form of immorality which has a relation to sexual impurity. It is generally used to indicate gross indecency with respect to the sexual relations." Subsection 796.07(3)(a), Florida Statutes, states that it shall be unlawful in the State of Florida to offer to commit, or to commit, or to engage in prostitution, lewdness, or assignation. Sarah Jane Smith and Doris Pesnell Edwards engaged in lewdness as defined by statute and the Supreme Court of Florida and Prohibited by Subsection 796.07(3)(a), Florida Statutes, when, on April 16, 1975, as found above, while topless, they danced for a male patron of the Respondent by rubbing their vaginas, buttocks and legs on the patron, which acts took place in a public bar.

      
      

   2. Section 800.03, Florida Statutes, makes it unlawful for any person to expose or exhibit his or her sexual organs in any public place in a vulgar or indecent manner or to expose or exhibit his or her person in such place or to go and be naked in such place. The exposure of her vagina by Sarah Jane Smith as set forth in the findings of fact above, constitutes a violation of Section 800.03, Florida Statutes. See Hoffman v. Carson, 257 So.2d 891 (1971).

      
      

6. With regard to Division of Beverage Case No. 3-75-41A, the Hearing Officer enters the following conclusions of law:

   
   

   1. Officer Bagget was engaged in the lawful execution of his duty as required by Section 843.02, Florida Statutes, when the acts referred to in paragraph 2, above, occurred. However, it does not appear to the Hearing Officer that the acts committed by Rose Gibson constitute such obstruction or opposition of Officer Bagget as to be a violation of Section 843.02, Florida Statutes. While Gibson's acts were not those of a cooperative person, the direction of Gibson toward Bagget of the epithet Pig, does not, by itself, constitute obstruction or opposition of an officer. Further, when Bagget asked Gibson for identification, she stated that she had none and upon a questionable search of Gibson's purse, Bagget found her statement to be true. It is also noted that Gibson did not grab Bagget's arm and take the purse away from him until after he had searched her purse and was attempting to put the contents back in the purse so that he could return it to Gibson.

      
      

7. The Respondent is the holder of Beverage License No. 26-449, 4-COP.

   
   

8. All Motions not otherwise disposed of are hereby denied.

   
   

9. Subsection 561.29, Florida Statutes, gives the Division of Beverage the power and authority to revoke or suspend the license of a licensee, or to impose

   a civil penalty against a licensee, not to exceed $1,000.00, for violations arising out of a single transaction, when it is determined that the licensee or its agents, officers, servants or employees have violated any of the laws of the State of Florida.

   
   

10. The violations by Sarah Jane Smith on the night of April 16, 1975, arise out of a single transaction as that language is used in Subsection 561.29(4), Florida Statutes, with regard to the imposition of a civil penalty.

    
    

11. On April 16, 1975, Sarah Jane Smith and Doris Pesnell Edwards were agents, servants or employees of the Respondent.

RECOMMENDED ORDER

With regard to Division of Beverage Case No. 3-75-43A, the Hearing Officer recommends that the Respondent be assessed a civil penalty in the amount of

$1,000.00 for the violations arising from the same transaction, committed by Sarah Jane Smith and set forth in Counts I and II, and that the Respondent further be assessed a civil penalty of $1,000.00 for that violation set forth in Count III.

With regard to Division of Beverage Case No. 3-75-41A, the Hearing Officer finds no violation as alleged, and recommends that the matter be dismissed with prejudice.

ENTERED this 3rd day of May, 1976, in Tallahassee, Florida.

COPIES FURNISHED:

J. Riley Davis, Esquire Staff Attorney Department of Business

Regulation

The Johns Building Tallahassee, Florida 32304

Harry Katz, Jr., Esquire

337 East Forsyth Street Jacksonville, Florida 32202

Charles Nuzum, Director Division of Beverage The Johns Building

Tallahassee, Florida 32304

CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Docket for Case No: 75-001726

Orders for Case No: 75-001726