STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1575

) DABT NO. 29168-A BEACH PARK MOTEL, INC., t/a )

BEACH PARK MOTEL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, commencing at 9:30 a.m., February 13, 1980, at 1300 West Lee Road, Orlando, Florida.

APPEARANCES

For Petitioner: William A. Hatch, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Charles M. Harris, Esquire

Crofton, Holland, Starling, Harris & Severs, P.A.

509 Palm Avenue Post Office Box 669

Titusville, Florida 32780

ISSUE

1. Whether or not on or about August 9, 1978, Beach Park Motel, Inc., a vendor, licensed under the Beverage Law, its agent, servant, or employee, one Ruth Ira Holmes, did unlawfully offer to commit prostitution, lewdness or assignation, for the sum of $40.00 U.S. currency, with Beverage Sergeant R. A. Boyd, contrary to Subsection 796.07(3)(a), Florida Statutes, and Section 561.29, Florida Statutes.

2. Whether or not on or about August 22, 1978, Beach Park Motel, Inc. , a vendor, licensed under the Beverage Law, its agent, servant, or employee, one Diana Alice Baumbach, did unlawfully offer to commit prostitution, lewdness or assignation for the sum of $40.00 U.S. currency, with Beverage Officer B. A. Watts, contrary to Subsection 796.07(3)(a), Florida Statutes, and Section 561.29, Florida Statutes.

   
   

3. Whether or not on or about September 6, 1978, Beach Park Motel, Inc., a vendor, licensed under the Beverage Law, its agent, servant, or employee, one Diana Alice Baumbach, did unlawfully offer to commit prostitution, lewdness, or assignation for the sum of $50.00 U.S. currency, with Beverage Officer C. E. Lloyd, contrary to Subsection 796.07(3)(a), Florida Statutes, and Section 561.29, Florida Statutes.

   
   

4. Whether or not on or about September 6, 1978, Beach Park Motel, Inc., a vendor, licensed under the Beverage Law, on its above-described licensed premises, by its agent, servant, or employee, or entertainer, one, Diana Alice Baumbach, did unlawfully beg or solicit a patron, customer, or visitor, Beverage Officer C. E. Lloyd to purchase a beverage, to-wit; "CHERRY DELIGHT", for such employee, servant, agent or entertainer, in violation of Section 562.131, Florida Statutes.

(The charging document, i.e., Notice to Show Cause, originally contained other allegations found in its Counts 1 and 5; however, those counts were withdrawn by the Petitioner in the course of the hearing and are therefore removed from consideration through this Recommended Order.)

FINDINGS OF FACT

1. The Respondent in this cause is Beach Park Motel, Inc. , a closely held corporation. This corporation is a holder of Beverage License No. 15-002265, Series 4-COP, to trade as Beach Park Motel at a business premises located at 4290 Ocean Beach Boulevard, Coco Beach, Florida. This license is held with Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, which organization has responsibility for the licensure and regulation of those several business entities within the State that sell alcoholic beverages. This case is here presented for consideration on the basis of a Notice to Show Cause/Administrative Complaint which contains six counts, Counts 1 and 5 having been withdrawn. The details of the remaining counts are as set forth in the issues statement of this Recommended Order.

2. On August 9, 1978, Officers Richard Boyd and Bethel Watts, Jr., of the Division of Alcoholic Beverages and Tobacco, went to the licensed premises at 4290 Ocean Beach Boulevard, Cocoa Beach, Florida, for purposes of investigating alleged prostitution activities at the licensed premises. They entered the premises and took a seat at the bar around 9:30 p.m. While seated there, they observed Ruth Ira Holmes performing as an entertainer in the bar by dancing. This person, Holmes, was also referred to by a stage name, "Nina".

   
   

3. Holmes then left the stage and approached Officer Boyd, who was sitting in a separate location from Officer Watts. This contact between Holmes and Boyd occurred thirty or forty minutes after the officers had arrived at the licensed premises.

   
   

4. There ensued a discussion between Boyd and Holmes on the subject of purchasing marijuana. (The allegation concerning the Respondent's participation in this alleged possession and sale of marijuana has been withdrawn.) Holmes then went around the service bar and picked up her purse from behind the bar. Boyd and Holmes then left the interior of the licensed premises. Once outside Holmes produced two envelopes with a substance which appeared to be marijuana and the officer also observed in her purse a larger bag which had a substance of similar appearance. Boyd asked how much the contents of the larger bag would cost and gave her $25.00, purchasing those contents. The witness then returned the small envelopes to her purse.

   
   

5. Boyd asked Holmes what she was doing after work and she replied, "Are you asking for a 'date'?" Boyd responded, "Yes" and Holmes stated, "You mean 'that'?" and thrust her body at him. Boyd asked her what it was going to cost and she replied that for

   $40.00 she would do anything he wanted. He accepted her offer and she gave him the key to Room 224, which was a key to the motel part of the Respondent's establishment. Holmes checked to make sure that no one was observing them and they proceeded to the motel room.

   
   

6. When they reached the room, he gave her two twenty dollar bills. She placed the money in her purse and took off her clothing with the exception of a "G" string and stated to him, "Let's get started." Boyd moved-toward the door of the motel room, after which he produced his law enforcement officer's identification badge and officers of the Brevard County Sheriff's Department took Holmes into custody.

   
   

7. Howard Warren, President of the Respondent corporation, was seen at the licensed premises that night.

8. Later, in connection with an investigation of her activities, a statement was given to Officers Boyd and Watts by Ruth Ira Holmes in which she indicated to the officers that she had been employed in the licensed premises known as the "Booby Trap" to work as a dancer and Howard Warren, then President of the Respondent corporation, had hired her. Her rate of pay was

   $2.50 per hour. She further stated that she had been employed for about seven months and was paid at the end of each week by check from Howard Warren.

   
   

9. The Petitioner's Composite Exhibit 4 admitted into evidence is a series of checks written by Howard Warren and made payable to Ruth Ira Holmes beginning on July 7, 1978, with the last check being drawn on September 1, 1978, and one of the checks being drawn on August 1, 1978. The observation of Holmes' dancing on the licensed premises on the night in question, the statement that she was an employee paid by Howard Warren and the series of checks drawn by Howard Warren to Ruth Holmes, also known as Ruth Ira Holmes, are sufficient to show that Ruth Ira Holmes was employed as a dancer by the Respondent to work at the licensed premises in such capacity on August 9, 1978. This determination is further borne out by the Petitioner's Exhibits 3 and 5 admitted into evidence which are copies of the payroll accounts of the Respondent showing that Ruth Holmes was an employee and by part of Petitioner's Composite Exhibit 6, which is a motel registration card showing Ruth Holmes to be registered in the same room, 224, spoken to before and shows her occupation to be dancer.

10. Officer Watts returned to the licensed premises on August 22, 1978, and again operating in an undercover capacity. While seated at the bar, he was approached by Diana Baumbach, also known as 'Misty'. Baumbach asked Watts if he were having a good time and he told her that things were rather slow and that he had been led to understand that the "Booby Trap" was a place where the action was. Baumbach responded by telling Watts that she could provide him some action for $40.00, either a "blow job"/fellatio or "screw"/intercourse. During this conversation Baumbach indicated that she worked in the licensed premises. She also stated in the course of the conversation that when a certain girl who was dancing had finished her performance it would be Baumbach's turn.

    
    

11. Baumbach was wearing a long sleeved jacket and bikini panties and after this initial discussion with Watts went to the dance area and performed for the crowd.

    
    

12. Baumbach returned to the location of the officer and stated she was ready to go. They walked through the rear of the bar and she took him to Room 206 in the motel part of the

    Respondent's complex. They entered Room 206 and Baumbach stated that she wanted her $40.00 and Watts gave her two twenty dollar bills. Baumbach took off her coat and Watts stated that he wanted to check to see if anyone was outside. He opened the door and allowed an officer of the Cocoa Beach Police Department to enter the room and Baumbach was arrested.

    
    

13. On September 6, 1978, Officer C. E. Lloyd of the Division of Alcoholic Beverages and Tobacco went to the licensed premises in an undercover capacity to investigate alleged prostitution at that location. He entered the licensed premises and took a seat at the bar in the area of the dance floor. After being seated, he was approached by Diana Baumbach, who asked him if she could sit down. She inquired if Lloyd would buy her a drink and he complied with that request and bought the drink.

    She then asked Lloyd if he "messed around" and his answer was, "Sometimes." She stated that she would give him a "blow job"/fellatio for $30.00 or "all the way"/intercourse for $50.00. She then stated that she could not go right away because the master of ceremonies was going to call her up to dance.

    
    

14. She danced two times in front of the audience. The dancing she did was a topless routine.

    
    

15. She returned to Lloyd's location and asked if he knew his way around and stated that he should go up to Room 216 and that she would follow up.

    
    

16. When he arrived at Room 216 in that part of the Respondent's establishment, Baumbach was already there. They went inside the room and Baumbach again advised Lloyd that the price was $50.00. She took her clothes off and he took off his shoes and then went to the door, at which point he advised Baumbach that she was being arrested and she was arrested.

    
    

17. Lloyd later spoke with Howard Warren about the solicitation for prostitution that had occurred on the part of Baumbach as a follow up to his investigation and the arrest of Baumbach.

    
    

18. Baumbach, on the occasions of August 22, 1978, and September 6, 1978, at which points she solicited Officers Watts and Lloyd, respectively, for the purposes of committing prostitution, was an employee, agent and entertainer of the Respondent in the sense of the dance performances she gave for the benefit of the patrons in the licensed premises. This determination of employment is supported by the testimony of Carol Sue Warren, daughter of Howard Warren and manager of the "Booby Trap" during August and September, 1978, who testified

    that Baumbach was an employee of the Respondent at time which corresponds to August 22, 1978, and September 6, 1978.

    
    

19. Moreover, the rendezvous between Ruth Ira Holmes and Officer Boyd on August 9, 1978; the rendezvous between Diana Alice Baumbach and Officer Watts on August 22, 1978, and the rendezvous between Diana Alice Baumbach and Officer Lloyd which occurred on September 6, 1978; all these meetings for purposes of committing prostitution in the motel which is a part of the Respondent's establishment located at 4290 Ocean Beach Boulevard, Cocoa Beach, Florida, were types of activities known by the officials of the Respondent to be taking place.

    
    

20. This knowledge on the part of the officials of the Respondent covered the period of August 9, 1978, through September 6, 1978, and pertained not only to the solicitation to commit prostitution, lewdness or assignation and the occurrence of such prostitution, lewdness and assignation on the part of Ruth Ira Holmes and Diana Alice Baumbach but also pertained to such activities by other employees or dancers who worked in the licensed premises during this period of time. This knowledge on the part of the Respondent's officials, and in particular its president, Howard Warren, was not part of a pattern of conduct which actively condoned activities of prostitution by the employees and/or dancers who worked at the licensed premises, in fact the owners had a stated policy of not allowing prostitution or soliciting drinks or activities involved with drugs on the part of their female employees or others who might be dancing in the licensed premises and the Respondent's representatives had fired certain of the female employees in the past when they had been discovered committing acts of prostitution. Nonetheless, the Respondent in the person of Howard Warren stated that he did not wish prostitution in the licensed premises but didn't feel he could really effectively stop it and went further by rehiring Ruth Ira Holmes as an employee of the Respondent after she had been discovered committing acts of prostitution. Holmes, after returning as an employee, then continued her activities as a prostitute. Diana Alice Baumbach had also been employed by the Respondent and had been fired several times during the course of her employment, one of those firings occurring after her arrest for the prostitution incident involving Officer Watts that occurred on August 22, 1978. She was then rehired and was an employee of the Respondent on September 6, 1978, when she committed a further act of soliciting for prostitution which occurred with Officer Lloyd. Baumbach was also represented by Howard Warren as attorney following an arrest.

21. Both Holmes and Baumbach were allowed to remain as tenants in the Respondent's motel, the same motel where the

prostitution had occurred, and were allowed to do so following their arrests in August of 1978, for prostitution offenses.

CONCLUSIONS OF LAW

22.. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

1. The Petitioner's Exhibit 2 is admitted into evidence with the exception of that portion of the written statement which states, "Com. on R.H. drink 75 cents cherry small Del 1.50 on CHAMP---".

   
   

2. The facts in this case demonstrate that Ruth Ira Holmes on August 9, 1978, unlawfully offered to commit prostitution, lewdness or assignation with Officer Boyd contrary to Section 796.07(3)(a), Florida statutes. 1/

   
   

3. The facts in this case demonstrate that Diana Alice Baumbach on August 22, 1978, unlawfully offered to commit prostitution, lewdness or assignation with Officer Watts contrary to Section 796.07(3)(a), Florida Statutes.

   
   

4. The facts in this case demonstrate that Diana Alice Baumbach on September 6, 1978, unlawfully offered to commit prostitution, lewdness or assignation with Officer Lloyd contrary to Section 796.07(3)(a), Florida Statutes.

   
   

5. The arrangements and consummation in these instances were carried out in the licensed premises; the parking lot adjacent to the licensed premises, and in the motel part of the Respondent's complex located at 4290 Ocean Beach Boulevard, Cocoa Beach, Florida. The initial contact with the several officers made by Holmes and Baumbach on the dates in question were made in the licensed premises by dancers who were the agents, servants or employees of the Respondent and although the Respondent did not intentionally cause these employees to commit acts of prostitution and in fact, had told the employees not to commit these acts, the offenses were committed during the time period of August 9, 1978, through September 6, 1978, by Holmes and Baumbach and by others, with the knowledge of the officials of the Respondent. Moreover, Ruth Ira Holmes and Diana Alice Baumbach were rehired by the Respondent after it was determined that they had committed prostitution type offenses and after being rehired continued to commit acts of prostitution. In addition, these individuals were allowed to remain as residents of the motel complex where the prostitution was occurring at a time subsequent to the discovery on the part of the Respondent's officials that

   Holmes and Baumbach had committed offenses involving prostitution.

   
   

6. When all the facts surrounding the events of August 9, 1978; August 22, 1978; and September 6, 1978, concerning the offering for prostitution, lewdness and assignation on the part of Ruth Ira Holmes and Diana Alice Baumbach are considered, the Respondent in the person of its officials is culpable for having been negligent and failing to exercise reasonable care and diligence in supervising the activities of its agents, servants, or employees, Ruth Ira Holmes and Diana Alice Baumbach. See Pauline v. Lee, 147 So.2d 259, (Fla. 2d DCA 1962); G & B of Jacksonville, Inc. v. State of Florida, 366 So.2d 877 (Fla. 1st DCA 1979): and G & B of Jacksonville, Inc. v. State of Florida,

   371 So.2d 137 (Fla. 1st DCA 1979). Therefore, in view of the combination of facts over the period August 9, 1978, through September 6, 1978, related to Ruth Ira Holmes and Diana Alice Baumbach, Respondent is guilty of a violation of Subsection 561.29(1)(a), Florida Statutes 2/ and is subject to the penalties therein.

   
   

7. The facts in this case are such that it has been proven that Diana Alice Baumbach did solicit Officer Lloyd to purchase her a drink/beverage on September 6, 1978, in violation of Section 562.131, Florida Statutes; 3/ however, there are no facts which show that the Respondent was knowledgeable of such solicitation. Consequently, the Respondent is not held accountable under Section 561.29, Florida Statutes, for the violation of its agent, servant, or employee, Diana Alice Baumbach.

RECOMMENDATION

In consideration of the facts found herein, the Conclusions of Law reached and those matters offered in mitigation, it is RECOMMENDED that the license of the Respondent, Beach Park Motel, Inc. d/b/a Beach Park Motel, be REVOKED. 4/

DONE AND ENTERED this 6th day of March, 1980, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

ENDNOTES

1/ "(3) It shall further be unlawful in the state: (a) To offer to commit, or to commit, or engage in, prostitution, lewdness, or assignation."

2/ "(a) Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state or of the United States, or violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages, or engaging in or permitting disorderly conduct on the licensed premises, or permitting another on the licensed premises to violate any of the laws of this state or of the United States; except that whether or not the licensee or his or its agents, officers, servants, or employees have been convicted in any criminal court of any violation as set forth in this paragraph shall not be considered in proceedings before the Division of 1/ [Alcoholic Beverages and Tobacco for suspension or revocation of a license except as permitted by Chapter 92 or the rules of evidence."

3/ "562.131 Solicitation for sale of alcoholic beverage prohibited; penalty.-- (1) It is unlawful for any licensee, his employee, agent, servant, or any entertainer employed at the licensed premises or employed on a contractual basis to entertain, perform or work upon the licensed premises to beg or solicit any patron or customer thereof or visitor in any licensed premises to purchase any beverage, alcoholic or otherwise, for such licensee's employee, agent, servant, or entertainer.

4/ The Respondent has submitted Proposed Findings of Fact, Conclusions of law and a Recommendation and those matters have been reviewed prior to the rendition of this Recommended Order. To the extent that these proposals are consistent with the Recommended Order, they have been utilized in preparing this Recommended Order. To the extent that these proposals are inconsistent with the Recommended Order, they are rejected.

COPIES FURNISHED:

William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Charles M. Harris, Esquire Crofton, Holland, Starling,

Harris & Severs, P.A.

509 Palm Avenue, P.O. Box 669 Titusville, Florida 32780

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO,

Petitioner,

vs. CASE NO. 79-1575

DABT NO. 15-225S

BEACH PARK MOTEL, INC., t/a BEACH PARK MOTEL,

Respondent.

/

FINAL ORDER

After due consideration in the above-styled cause it is hereby ordered:

1. That the Recommended Order of Charles C. Adams, Hearing Officer for the Division of Administrative Hearings, dated March 6, 1980 entered in this cause is hereby adopted by the Division of Alcoholic Beverages and Tobacco.

   
   

2. Respondent's Motion for Rehearing is hereby denied.

   
   

3. Respondent's Request for Hearing and Oral Argument is hereby denied.

   
   

4. Respondent's Exceptions to Recommended Order are found to be without merit and are hereby rejected.

Wherefore it is hereby ordered that beverage license no. 15- 00226S, Series 4-COP, issued to the Respondent, Beach Park Motel, Inc., t/a Beach Park Motel located at 4290 Ocean Beach Boulevard, Cocoa Beach, Florida, be revoked.

DONE AND ORDERED this 19th day of March, 1980 in Tallahassee, Florida.

CHARLES A. NUZUM, Director Division of Alcoholic Beverages

and Tobacco

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32301

COPIES FURNISHED:

William A. Hatch Staff Attorney

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32301

Charles M. Harris, Esquire Crofton, Holland, Starling,

Harris & Severs, P.A.

509 Palm Avenue, Box #669 Titusville, Florida 32780

Docket for Case No: 79-001575

Orders for Case No: 79-001575