STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 75-1785

) DOB CASE NOS. 3-75-53A

G & B of JACKSONVILLE, INC., ) 3-75-64A

d/b/a Four winds, Beverage ) License No. 26-1235, 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. 3-75-53A, the Division of Beverage seeks to assess a civil penalty against, or to suspend or revoke Beverage License No. 26-1235,4-COP issued to the Respondent, setting forth the following two reasons:

1. That, on or about May 26, 1975, on the licensed premises, Terry Darlene Harris, age 16, was employed by the Respondent in violation of Section 562.13, Florida Statutes.

   
   

2. That, on or about June 3, 1975, on the licensed premises, an agent, servant or employee, of the Respondent, Jada Washington, did unlawfully commit lewdness and an unnatural lascivious act by fondling the penis of Ken Roach, through his trousers, and by removing Robin Smith's penis from his trousers and fondling Mr. Smith's exposed penis while sitting at a table, in violation of Sections 796.07(3)(a), 800.02, and 561.29, Florida Statutes.

In Division of Beverage Case No. 3-75-64A, the Petitioner seeks to assess a civil penalty, or to suspend or revoke Beverage License No. 26-1235,4-COP, held by Respondent, setting forth the following two reasons:

1. That on September 5, 1975, on the licensed premises, Respondent's agent, servant or employee, Catherine Venner, did unlawfully beg or solicit

   customers or patrons to purchase a beverage, alcoholic or otherwise, contrary to Section 563.131(1), Florida Statutes.

   
   

2. That on September 5, 1975, on the licensed premises, Respondent's agent, servant or employee, Myra Kathryn Watkins, did unlawfully beg or solicit customers or patrons to purchase a beverage, alcoholic or otherwise, contrary to Section 562.131(1), Florida Statutes.

All motions not otherwise disposed of are hereby denied.

FINDINGS OF FACT

1. With regard to Count I of Division of Beverage Case No. 3-75-53A, the Hearing Officer enters the following findings of fact:

   
   

   1. On or about May 26, 1975, Terry Darlene Harris, a female then 16 years of age, worked at the Four Winds bar as a topless dancer.

      
      

   2. Eugene Bernard, an officer, agent, servant or employee of the Respondent, entered into an agreement with Terry Darlene Harris, on or about May 26, 1975, whereby Harris agreed to perform as a topless dancer in the Four Winds bar and, in return, would pay Respondent $5.00 a night for the opportunity of dancing. Harris received remuneration for her dancing in the form of tips from patrons of the bar. There was no evidence that Harris received any wages or other compensation from the Respondent.

      
      

   3. As part of her agreement with Eugene Bernard the only requirements placed on Harris were that she could not touch the patrons, nor be touched by them, and that she could not solicit drinks. The only evidence presented showed that Harris could dance when she wanted, and as often as she wished, and did not have to dance at all.

      
      

   4. At the time Terry Darlene Harris entered into the agreement with Eugene Bernard, Harris's older sister worked at the Four Winds bar as a bartender, and upon being questioned by Bernard as to Harris's age, Harris's sister replied that Harris was 17 years old.

      
      

   5. Neither Eugene Bernard nor any other agent, servant or employee of the Respondent involved in the agreement with Terry Darlene Harris, requested from Harris any identification with regard to her age. Harris told Bernard that she was 17 and soon would be 18 years old.

      
      

2. With regard to Count II of Division of Beverage Case No. 3-75-53A the Hearing Officer enters the following findings of fact:

   
   

   1. On the night of June 3, 1975, Jada Washington was dressed as a topless dancer and performed as a topless dancer in the Four Winds bar, as she had on previous nights.

      
      

   2. On the night of June 3, 1975, Robin Michael Smith and Kenneth Roach, a police officer, entered the Four Winds bar. Roach's duty assignment as a policeman for that evening was the Four Winds bar, because Smith had recently informed the police that prostitution might be occurring in the bar.

      
      

   3. Upon entering the bar and ordering drinks, a woman came over to Smith and Roach and spoke to Smith. The woman was Jada Washington. Smith and Washington went to another table and conversed for several minutes. Smith then

      motioned Roach to join them, which he did. Washington was dressed in high boots, a shawl and had a brief dance costume on. Washington asked Roach if he wanted another drink and he said, "Yes", and gave her $5.00 which she put in her boot. She did not bring a drink. Later, she asked Roach and Smith if they wanted drinks and they said, "Yes". Roach gave Washington $10.00 and Smith gave Washington $20.00, but did not receive any drinks in return, nor did they get their money back. A few minutes later another woman brought drinks to Roach and Smith, who paid that woman for them.

      
      

   4. Washington got up and temporarily left Roach and Smith. Upon rejoining them she sat between them. She then removed Smith's penis from his trousers and began fondling it and also reached over and fondled Roach's penis through his trousers.

      
      

   5. Washington then went outside the bar, where Roach arrested her. According to Eugene Bernard's testimony, he fired her because of the arrest.

      
      

   6. Eugene Bernard, an officer, agent, servant or employee of the Respondent, saw Robi Michael Smith at a theatre after the events on June 3, 1975, but prior to the date of the hearing, and after asking Smith if his memory was bad because he had been shot in the head (there was testimony that Smith was seriously wounded in the head while with the United States Army in the Republic of Viet Nam) suggested that Smith had best forget certain things pertaining to the events of June 3, 1975.

      
      

   7. On June 3, 1975, Jada Washington was an agent, servant or employee of the Respondent, working at the Four Winds bar.

      
      

3. With regard to Counts I and II of Division of Beverage Case No. 3-75- 64A, the Hearing Officer enters the following findings of fact:

   
   

   1. On September 5, 1975, Catherine Venner, also known as "Jody", and Myra Kathryn Watkins, were working as topless dancers at the Four Winds bar. While so working, they kept their purses behind the bar.

      
      

   2. On September 5, 1975, three Beverage Officers, Reeves, Sterling and Boyd, along with a civilian named Ronald Keith, went into the Four Winds bar and ordered drinks.

      
      

   3. After the four men were seated, Catherine Venner, came up to them and offered to dance for them which offer they accepted. After dancing for them she asked the men if they would buy her a drink, which they did. Beverage Officer George Sterling paid for the drink. Later, Catherine Venner asked if they would buy her another drink, which they did, Sterling again paying.

      
      

   4. While the four men were seated and after Catherine Venner had initially come up and begun to dance for then, Myra Kathryn Watkins, joined them and also danced for them. She also asked if the men would buy her a drink, which they did, with Sterling paying. Watkins also later asked for and received a second drink which Sterling paid for.

      
      

4. With regard to Division of Beverage Case No. 3-75-53A, Counts I and II and Division of Beverage Case No. 3-75-64A, Counts I and II, the Respondent, G & B of Jacksonville, Inc., d/b/a Four Winds, is the holder of Beverage License No. 26-1235,4-COP. The Four Winds bar is included in the licensed premises.

   CONCLUSIONS OF LAW

   
   

5. Proper notice of these proceedings has been given to those Parties and other parties legally entitled thereto.

   
   

6. With regard to Count I of Division of Beverage Case No. 3-75-53A, the Hearing Officer enters the following conclusions of law:

   
   

   1. Section 562.13, Florida Statutes, states that "It is unlawful for any vendor licensed under the beverage law to employ any person under 18 years of age. However, this section shall not apply to professional entertainers between the ages of 17 and 18 years who are not in school The Respondent herein is a "vendor licensed under the beverage law" as set forth in Section 562.13, Florida Statutes. A person performing as a topless dancer in a bar for remuneration would seem to be a professional entertainer under Section 562.13, Florida Statutes. In the situation before us, Terry Darlene Harris was working as a topless dancer and was only 16 years of age, although, Section 562.13, Florida Statutes, sets the minimum age for professional entertainers at 17.

      
      

7. The pertinent requirements, of Section 562.13, Florida Statutes, however, with regard to this case, are those that state that it is unlawful for any vendor licensed under the beverage law to employ any person under the applicable minimum age. In Guthery v. State Beverage Department, 183 So.2d 704 (3rd District, 1966), the court dealt with the meaning of the word "employ" as it is used in Section 562.13, Florida Statutes. In that case the question for determination was whether or not a 16 year old minor who was one of the members of a band which was "auditioned", for one night, without payment of compensation, was an employee of the licensee. The court held that the term "employ", as used in the beverage law, refers to the commonly accepted or common law definition of "employment". They further noted that the Supreme Court of Florida in City of Boca Raton v. Mattef, 91 So.2d 644 (1956), had defined an employee as

   
   

   " . . . one who for a consideration agrees to work subject to control and direction of another, usually but not necessarily, for regular wages, and to subject himself at all times during

   period of service to the lawful control and direction of employer in respect to the work to be done."

   
   

   Based on that definition, the court in Guthery found that the 16 year old member of the band who was on the premises merely for the purpose of auditioning, albeit by a full night's work, was not an employee because there was no agreement for compensation.

   
   

8. In the matter currently before us, the only evidence on point shows that Terry Darlene Harris agreed to pay the Respondent $5.00 a night so that she could work as a topless dancer in the Four Winds bar. Harris was compensated by tips from the patrons. There was no showing of any agreement by the Respondent to pay Terry Darlene Harris any sum of money or other form of compensation in return for her services as a topless dancer. Further, the testimony indicates that the only directions given by Respondent to Harris, with regard to her working as a topless dancer, were that she could not touch the patrons nor be touched by them, and that she could not solicit drinks. Beyond that, there was no evidence of any requirement placed upon Harris by the Respondent concerning

   the number of dances she might perform nor the manner in which she could or should perform them, nor any other aspect of her work. In fact, the testimony was that Harris could dance as much or as little as she wished, or, even not at all, and in any manner she wished. Thus, the evidence failed to establish that Harris agreed to subject herself at all times during the period of service to the lawful control and direction of Respondent.

   
   

9. With regard to Count II of Division of Beverage Case No. 3-75-53A, the Hearing Officer enters the following conclusions of law:

   
   

   1. Section 561.29, Florida Statutes, gives the Division of Beverage full 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, where it is determined upon sufficient cause, that the licensee, his or its agents, officers, servants or employees, have violated any of the laws of the State of Florida or have committed any violations mentioned in the beverage law or any rule pursuant thereto.

      
      

   2. It appears from the findings of fact set forth above that Jada Washington, at the time of the events in question, was a servant, agent or employee of the Respondent. Further, it appears that Jada Washington, in engaging in the acts set forth in paragraph 2(d) of the findings of fact above, did engage in lewdness, in violation of Section 796.07(3)(a), Florida Statutes, thus, subjecting the Respondent to penalty pursuant to Section 561.29, Florida Statutes.

      
      

10. With regard to Counts I and II of Division of Beverage Case No. 3-75- 64A, the Hearing Officer enters the following conclusions of law:

    
    

    1. Catherine Venner and Myra Kathryn Watkins, were agents, servant or employees of the Respondent and entertainers employed at the licensed premises on September 5, 1975. The acts set forth in paragraph 3 herein constitute the begging or soliciting of a patron or customer or visitor in the licensed premises to purchase an alcoholic beverage in violation of Section 562.131, Florida Statutes. Such violation subjects the Respondent to penalty pursuant to Section 561.29, Florida Statutes.

RECOMMENDED ORDER

As to Division of Beverage Case No. 3-75-53A, the Hearing Officer recommends as follows:

1. With regard to Count I, although it was shown that the Respondent allowed a 16 year old girl to work as a topless dancer in the licensed premises, the Petitioner failed to show that the girl was an employee as required by Section 562.13, Florida Statutes. Therefore, it is recommended that this count be dismissed with prejudice.

   
   

2. With regard to Count II, Respondent's servant or employee, Jada Washington, did violate Section 796.07(3)(a), Florida Statutes, as set forth above and, therefore, it is recommended that the Respondent be assessed a civil penalty of $1,000.00.

As to Division of Beverage Case No. 3-75-64A, and pursuant to the findings of fact and conclusions of law, as set forth above, the violations alleged in Counts I and II, did occur. Therefore, it is recommended that the Respondent be assessed a civil penalty of $750.00 for each of the two counts.

Further, in light of the several violations found herein, it is recommended that Respondent's license be suspended for 30 days for each violation, said suspensions to run concurrently.

ENTERED this 26th day of April, 1976, in Tallahassee, Florida.

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

(904) 488-9675

COPIES FURNISHED:

J. Riley Davis, Esquire Harry Katz, Jr., Esquire Department of Business Regulation 337 East Forsyth Street Division of Beverage Jacksonville, Florida 32202 Johns Building

Tallahassee, Florida 32304

Docket for Case No: 75-001785

Orders for Case No: 75-001785