STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF HOTELS ) AND RESTAURANTS, )

)

Petitioner, )

)

vs. ) CASE NO. 78-226

) ALMA MAE YOUNG AND ULYSSES BROWN, ) d/b/a YOUNG'S ROOMING HOUSE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings, at 359 State Office Building, 1350 N.W. 12th Avenue, Miami, Florida, at 3:30 p.m., March 21, 1978.

APPEARANCES

For Petitioner: Lawrence D. Winson, Esquire

Department of Business Regulation 725 South Bronough

Johns Building

Tallahassee, Florida 32304

For Respondents: Alma Mae Young and Ulysses Brown

ISSUES

1. Whether or not, between the periods of January 1976 and August 1977, the licensees or their agents, servants or employees allowed the license premises to be kept, set up, maintained or operated for the purpose of prostitution, in violation of Section 509.032(1), Florida Statutes, and Section 796.07, Florida Statutes.

   
   

2. Whether or not, between the periods of January 1976 and August 1977, Ulysses Brown, the licensee and/or operator of the licensed premises had been convicted of letting the premises for prostitution and keeping a disorderly place, thereby violating Section 509.261(4)(a), Florida Statutes.

FINDINGS OF FACT

1. At all times material to the notice to show cause, Alma Mae Young and Ulysses Brown were the holder of license No. 23-7079H held with the Petitioner, State of Florida, Department of Business Regulation, Division of Hotels and Restaurants. This license was held to do business as Young's Rooming House, located at 7000 N.W. 21st Avenue, Miami, Florida.

2. The facts in this case show that on October 23, 1976, Officer Otis Chambers, of the Dade County Public Safety Department, Dade County, Florida, went to the licensed premises known as Young's Rooming House located at 7000

   N.W. 21st Avenue, Miami, Florida. At that time, Officer Chambers was operating in the capacity of an undercover plainclothes officer investigating vice matters. He was in the company of a prostitute and when he approached the desk in the licensed premises, he spoke with the licensee, Ulysses Brown. In the conversation with Mr. Brown, he identified the woman in his company as being a prostitute, as shown by the remarks to Brown, and Brown acknowledged this information and rented a room to the officer.

   
   

3. Subsequent to the events that transpired in the conversation between Officer Chambers and the licensee Brown, Brown was arrested and charged with violations of Section 796.06, Florida Statutes, which pertains to renting space for prostitution and with a violation of Section 796.07(2)(c), Florida Statutes, which is an allegation of receiving, offering or agreeing to receive, any person into any place, structure, building or conveyance with the purpose of prostitution or permitting any person to remain in those locales for such purpose. The licensee was found guilty of both offenses and placed on a period of probation for six months. Evidence of this finding by the Court may be seen as Exhibit No. 4 admitted into evidence.

   
   

4. It was also shown in the course of the hearing that a number of complaints have been made by neighbors who live in the area of the licensed premises, to the effect that the licensed premises was a place in which prostitution was occurring; The comment was also made by these individuals that men and women were seen in the licensed premises who were not wearing clothes. The opinions were testified to by Officer John Wilson of the Dade County Public Safety Department who had spoken with a number of the residents of the area where the licensed premises is located.

   
   

5. Although Ulysses Brown has claimed that he is no longer involved with the licensed premises, a recent inspection by Agent John H. McKinnon of the Division of Hotels and Restaurants reveals that Ulysses Brown is still working in the licensed premises. According to Brown, and in keeping with what the agent actually observed about the licensee's intention, Brown is to work and take care of the licensed premises and Young is to be the owner.

   
   

6. Based upon the facts as reported, the Petitioner has brought two charges in the notice to show cause. The first charge alleges that between the periods of January 1976 and August 1977, the licensees, their agents, servants or employees, allowed the premises to be kept, set up, maintained or operated for the purpose of prostitution, in violation of Section 509.032(1), Florida Statutes, and Section 796.07, Florida Statutes.

   
   

7. Section 509.032, Florida Statutes, states the duties of the Petitioner in the following language:

   
   

   509.32 Duties.-

   (1) GENERAL.- The division shall carry out and execute all of the provisions of this chapter and all other laws now in force or which may hereafter be enacted relating to the inspection or regulation of public lodging and public food service establishments for the purpose of safe- guarding the public health, safety, and welfare.

   The division shall be responsible for ascertaining

   that no establishment licensed by it shall engage

   in any misleading advertising or unethical practices as defined by this chapter and all other laws now

   in force or which may hereafter be enacted. The division shall keep accurate account of all expenses arising out of the performance of its duties

   shall file monthly itemized statements of such ex- penses with the Department of Banking and Finance together with an account of all fees collected under the provisions of this chapter.

   
   

   A reading of this paragraph of this section leads to the conclusion that its purposes are to create the authority in the Petitioner to implement regulations to enforce the provisions of the overall Chapter 409, Florida Statutes. It is not read to be a substantive law which would empower the Petitioner to take action based upon the language of that section per se. Therefore, an violation of Section 796.07, Florida Statutes, would not promote the right to take action against the licensees under Section 509.032, Florida Statutes.

   
   

8. The second count in the notice to show cause pertains to an allegation that between the periods of January 1976 and August 1977, the licensees and/or the operator, and in this instance that person is Ulysses Brown, has been convicted for letting the premises for prostitution and keeping a disorderly place which is in violation of Section 509.261(4)(a), Florida Statutes. That provision of the statutes reads as follows:

   
   

   509.261 Revocation or suspension of licenses; fines; procedure.-

   (4)(a) Any person interested in the operation of any such establishment, whether owner or operator, has been convicted, within the last

   past 5 years in this state or any other state or the United States of soliciting for prostitution, pandering, letting premises for prostitution, keeping a disorderly place, illegally dealing in narcotics, or any other crime involving moral turpitude. The term "convicted" shall include

   an adjudication of guilt on a plea of guilty or nolo contendere or the forfeiture of a bond when charged with a crime.

   
   

   As stated before, Ulysses Brown, one of the licensees, was found guilty of Sections 796.06 and 796.07(2)(c), Florida Statutes. Those violations were established through an entry of the judgment finding the licensee guilty on January 20, 1977. That finding was reached within five years of the date of the action for suspension or revocation. This finding by the Court, coupled with the continued involvement by Ulysses Brown in the operation of the licensed premises and the background problems which have been prevalent in the licensed premises, would justify action being taken against both licensees, to-wit, Alma Mae Young and Ulysses Brown. The action spoken of was the right of action under Section 509.261(4)(a), Florida Statutes, and is the right of direct action against Ulysses Brown and a right of indirect action against Alma Mae Young for her knowledge, negligence or lack of due diligence in the operation of the licensed premises.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction in this cause.

   
   

10. Based upon a consideration of the facts in this cause, it is concluded as a matter of law that the Petitioner has failed to establish a violation of Section 509.032(1), Florida Statutes, as alleged in Count 1, due to the fact that Section 509.032 (1) is not a substantive provision by which the Petitioner may bring action.

    
    

11. Based upon a consideration of the facts in this cause, it is concluded as a matter of law that the conviction of Ulysses Brown on January 20, 1977, of Sections 796.06, Florida Statutes, and Section 796.07(2)(c), Florida Statutes, relating to prostitution, and the knowledge, negligence or lack of due diligence on the part of Alma Mae Young are sufficient to establish a violation of Section 509.261(4)(a), Florida Statutes, and that violation is so established.

RECOMMENDATION

It is recommended that the license held by the Respondents Alma Mae Young and Ulysses Brown to trade as Young's Rooming House located at 7000 N.W. 21st Avenue, Miami, Florida, license No. 23-7079H be revoked.

DONE and ENTERED this 12th day of April, 1978, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Lawrence D. Winson, Esquire Department of Business Regulation 725 South Bronough

Johns Building Tallahassee, Florida 32304

Alma Mae Young Ulysses Brown

Youngs Rooming House 7000 N.W. 21st Avenue Miami, Florida

Docket for Case No: 78-000226

Orders for Case No: 78-000226