STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1539

) CENTRAL FLORIDA CLUBS NUMBER 2, )

INC., t/a Booby Trap, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Michael R. N. McDonnell, Hearing Officer for the Division of Administrative Hearings, at 9:30 a.m., on January 10, 1978, at 1300 West Lee Road, Office of the Division of Alcoholic Beverages and Tobacco, Orlando, Florida.

APPEARANCES

For Petitioner: Richard Gentry, Esquire For Respondent: Judith A. Ginn, Esquire

Petitioner, hereafter DABT, has charged the Respondent, hereafter Central Florida Clubs Number 2, with nine violations of Florida law, which DABT contends are grounds for the assessment of a civil penalty or the suspension or revocation of Central Florida Clubs Number 2's beverage license. Each of the charges alleges that an agent, servant or employee of Central Florida Clubs Number 2 performed, participated in, promoted, or permitted a nude, obscene or indecent show or act in violation of Section 847.011, Florida Statutes.

FINDINGS OF FACT

1. Central Florida Clubs Number 2 was the holder of the State of Florida Alcoholic Beverage License-Number 58-696 for the period October 1, 1976 through September 30, 1977. DABT seeks to assess a civil penalty against Central Florida Clubs Number 2 or to suspend or revoke its beverage license on the grounds that nine (9) violations of Section 847.011, Florida Statutes, occurred on the premises of the Central Florida Clubs Number 2 on May 11, 1977.

   
   

2. On that date, dance routines involving topless female dancers touching male customers in a sexually suggestive manner occurred on the premises.

   
   

3. No evidence was introduced purporting to establish that any of the dancers were agents or employees of Central Florida Clubs Number 2.

   Accordingly, it is found as a matter of fact that the dancers were not agents or employees of Central Florida Clubs Number 2.

4. No evidence was introduced purporting to demonstrate whether to the average person applying contemporary community standards, the dominant theme of the material, taken as a whole, appealed to prurient interest. Accordingly, it is found as a matter of fact that to the average person applying contemporary community standards, the dominant theme of the material presented at the Booby Trap taken as a whole did not appeal to prurient interest.

   
   

5. No evidence was introduced purporting to establish that David Lee Feller was an agent or employee of Central Florida Clubs Number 2., Accordingly, it is found as matter of fact that David Lee Feller was not an agent or an employee of Central Florida Clubs Number 2.

   
   

   CONCLUSIONS OF LAW

   
   

6. Section 561.29, Florida Statutes, gives DABT full power to penalize a corporate licensee for violation of the laws of the state. Pursuant to this authority, DABT has charged Central Florida Clubs Number 2 with violations of Section 847.011, Florida Statutes, which provides:

   
   

   Any person who knowingly promotes, conducts, performs, or participates in an obscene, lewd, lascivious, or indecent show, exhibition, or performance by live persons or a live person before an audience is guilty of a misdemeanor of the first degree . . .

   
   

7. In subsection (11) of the same statute is contained the test of obscenity:

   
   

   Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.

   
   

8. It is concluded as a matter of law that for the purposes of the definition, the words lewd, lascivious and indecent are synonymous with obscene.

   
   

9. In the instant case there was a complete absence of evidence to establish applicable community standards. Accordingly, it is not possible to make a finding that the performance was obscene, lewd or indecent. This is a necessary element of the charges brought by DABT in this case.

   
   

10. In each of the nine charges it is alleged that the person either performing or promoting the performance was an agent or employee of Central Florida Clubs Number 2. Again there is a complete absence of proof as to these allegations. The relationship of the performer or promoter to the licensee is also a necessary element of the charge.

    
    

11. DABT has wholly failed to establish its case. It is, accordingly, RECOMMENDED that the charges be dismissed.

DONE and ENTERED this 10th day of February, 1978, in Tallahassee, Florida.

MICHAEL R. N. MCDONNELL

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Lawrence D. Winson, Esquire

Div. of Alcoholic Judith A. Ginn, Esquire Beverages and Tobacco 100 S. Orange Avenue

725 S. Bronough Street Suite 309, Metcalf Building Tallahassee, Florida 32304 Orlando, Florida 32304

Docket for Case No: 77-001539

Orders for Case No: 77-001539