vs. ) CASE NO. 80-899
Respondent. )
Pursuant to notice, a hearing was held in Orlando, Florida, on December 2, 1980, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:
For Petitioner: James N. Watson, Jr., Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
This case was presented through a Notice to Show Cause/Administrative Complaint filed by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco (DABT) against the Respondent, Harry's, Inc., t/a Night Gallery III (licensee), in which the requested relief is the imposition of civil penalty, suspension or revocation of the beverage license allegedly held by Harry's, Inc. The Notice to Show Cause/Administrative Complaint contains the following charges:
On or about the 15th of November, 1979, you, HARRY'S, INC., licensed under the beverage law, your agent, servant or employee, one DENICE DYER, while on your licensed premises, a public place, did unlawfully
offer to commit an act of prostitution, by giving her body for sexual intercourse to one N. CAHOON, Beverage Officer, for $25
U.S. Currency, contrary to F.S. 561.29 to wit 796.07(3)(A).
On or about the 15th of November, 1979, you, HARRY'S, INC., licensed under the beverage law, your agent, servant or employee, one DENICE DYER, while on your licensed premises, a public place, did
unlawfully beg or solicit a patron, one NATHAN CAHOON, Beverage Officer, to
purchase a beverage, alcoholic or otherwise, to wit; wine, contrary to F.S. 562.131.
On or about the 15th of November, 1979, you, HARRY'S, INC., licensed under the beverage law, your agent, servant or employee, one MISTY, while on your licensed premises, a public place did unlawfully
beg or solicit a patron, one C. E. CRUCE, Beverage Officer, to purchase a beverage, alcoholic or otherwise, to wit; beer, contrary to F.S. 562.131.
On or about the 15th of November, 1979, you, HARRY'S, INC., licensed under the beverage law, your agent, servant or employee, one PEACHES, while on your
licensed premises, a public place, did unlawfully beg or solicit a patron, one Beverage Officer B. A. WATTS, JR., to purchase a beverage, alcoholic or otherwise, to wit; beer, contrary to F.S. 562.131.
On or about the 15th of November, 1979, you, HARRY'S, INC., licensed under the beverage law, your agent, servant or employee, one PEACHES, while on your
licensed premises, a public place, did unlawfully offer to commit an act of prostitution, by giving her body for sexual intercourse to one Bev. Officer
B. A. WATTS, JR., for $30.00 U.S. Currency, contrary to F.S. 561.29 to wit 765.07(3)(A).
On or about the 19th of November, 1979, you, HARRY'S, INC., licensed under the beverage law, your agent, servant or employee, one JULIE BERNICE BROOKS, while
on your licensed premises, a public place, on four separate occasions, did unlawfully beg or solicit a patron, one Bev. Officer
J. E. KIKER, JR., to purchase a beverage, alcoholic of otherwise, to wit; a beverage for which KIKER paid $2.50 U.S. Currency, contrary to F.S. 562.131.
On or about the 19th of November, 1979, you, HARRY'S, INC., licensed under the beverage law, your agent, servant or employee, one OZZLYN WRIGHT, while on your licensed premises, a public place, on four separate occasions, did unlawfully beg or solicit a patron, one Beverage Officer
E. P. FOGLE, to purchase a beverage, alcoholic or otherwise to wit; a beverage for which FOGLE paid $2.50 U.S. Currency, contrary to F.S. 562.131.
On or about the 19th of November, 1979, you, HARRY'S, INC., licensed under the
beverage law, your agent, servant or employee, one OZZLYN WRIGHT, while on your premises, a public place, did unlawfully beg or solicit a patron, one Bev. Officer
J. E. KIKER, JR., to purchase a beverage, alcoholic or otherwise , to wit ; a beverage for which KIKER paid $2.50 U.S. Currency, contrary to F.S. 562.131.
On or about the 19th of November, 1979, you, HARRY'S, INC., licensed under the beverage law, your agent, servant or employee, one JULIE BERNICE BROOKS, while
on your licensed premises, a public place, did unlawfully beg or solicit a patron, one Bev. Officer E. P. FOGLE, to purchase
a beverage, alcoholic or otherwise, to wit; a beverage for which FOGLE paid $2.50 U.S. Currency, contrary to F.S. 562.131.
On or about the 19th of November, 1979, you, HARRY'S, INC., licensed under the beverage law, your agent, servant or employee, one OZZLYN WRIGHT, while on your licensed premises, a public place, did unlawfully offer to commit an act of prostitution, by giving her body for sexual intercourse to one Bev. Officer E. P.
FOGLE, for $25 U.S. Currency, contrary to F.S. 561.29 to wit 796.07(3)(A).
On or about the 19th of November, 1979, you, HARRY'S, INC., licensed under the beverage law, your agent, servant or employee, one JULIE BERNICE BROOKS, while on your licensed premises, a public place, did unlawfully offer to commit an act of prostitution, by giving her body for sexual intercourse to one Beverage Officer
J. E. KIKER, JR., for $30.00 U.S. Currency, contrary to F.S. 561.29 to wit 796.07(3)(A).
On or about the 19th of November, 1979, you, HARRY'S, INC., licensed under the beverage law, your agent, servant or
employee, one JULIE BERNICE BROOKS, while on your licensed premises, a public place, on three separate occasions, while dancing on stage did unlawfully commit an act which is of a nature to corrupt the public morals, or outrage the sense of public decency, to wit; rub her vagina area with her hands in an enticing manner towards
a customer or patron, one Bev. Officer
J. E. KIKER, JR. and E. P. FOGLE, contrary to F.S. 561.29 to wit 877.08 and 800.03.
On or about the 19th of November, 1979, you, HARRY'S, INC., licensed under the beverage law, your agent, servant or employee, one OZZLYN WRIGHT, while on your
licensed premises, a public place, on two separate occasions, while dancing on stage did unlawfully commit an act which is of a nature to corrupt the public morals, or outrage the sense of public decency, to
wit; while bending over and in the presence of one J. E. KIKER, JR. and E. P. FOGLE,
Beverage Officers, spread her vagina apart with her hands to the point where the red area was distinctly visible, contrary to F. S. 561.29 to wit 877.03 and 800.03.
On or about the 19th of November, 1979, you, HARRY'S, INC., licensed under the beverage law, your agent, servant or employee, one OZZLYN WRIGHT, while on your licensed premises, a public place, while dancing on stage did unlawfully commit an act which is of a nature to corrupt the public morals, or outrage the sense of public decency, to wit; while bending over and in the presence of one J. E. KIKER, JR. and E. P. FOGLE, Beverage Officers, spread her vagina with her hand and then allowed an unidentified white male patron to kiss her on the vaginal area through her panties, contrary to F.S. 561.29 to wit 877.03 and 800.03.
On or about the 19th of November, 1979, you, HARRY'S, INC., licensed under the beverage law, your agent, servant or employee, one "SISSY", while on your licensed premises, a public place, on two separate occasions, while dancing on stage, did unlawfully commit an act which is of
a nature to corrupt the public morals, or outrage the sense of public decency, to wit; pull down her panties exposing the pubic hair and then rubbing the vagina area, contrary to F.S. 561.29 to wit; F.S. 877.03 and 800.03.
On or about the 19th of November, 1979, you, HARRY'S, INC., licensed under the beverage law, your agent, servant or employee, one MARGE, while on your licensed premises, a public place, while dancing on stage and in the presence of J. E. KIKER and E. P. FOGLE, Beverage Officers, did unlawfully commit an act which is of a nature to corrupt the public morals, or outrage the sense of public decency, to wit; rub her vaginal area, contrary to
F.S. 561.29 to wit 877.03 and 800.03.
On or about the 19th of November, 1979, you, HARRY'S, INC., licensed under the beverage law, your agent, servant or employee, one MARGE, while on your licensed premises, a public place, while dancing on
stage and in the presence of J. E. KIKER, JR. and E. P. FOGLE Beverage Officers, did unlawfully commit an act which is of a nature to corrupt the public morals, or outrage the sense of public decency, to wit; rub her vaginal area, contrary to
F.S. 561.29 to wit; F.S. 877.03 and 800.03.
On or about the 19th of November, 1979, you, HARRY'S, INC., licensed under the beverage law, your agent, servant or employee, one SUZZY, while on your licensed premises, a public place, while dancing on stage and in the presence of J. E. KIKER, JR., and E. P. FOGLE, Beverage Officers, did unlawfully commit an act which is of
a nature to corrupt the public morals, or outrage the sense of public decency, to wit; rub her vaginal area, contrary to
F.S. 561.29 to wit; F.S. 877.03 and 300.03.
On or about the 29th of November, 1979, you, HARRY'S, INC., licensed under the beverage law your agent, servant or employee, one JULIA BERNICE BROOKS, while on your licensed premises, a public place did unlawfully beg or solicit a patron, one J. E. KIKER, JR. Beverage Officer,
to purchase a beverage, alcoholic or otherwise, to wit; wine, contrary to F.S. 562.131.
The Petitioner has complained against the named Respondent pursuant to the accusations set forth above. The Respondent requested a formal hearing to be conducted in accordance with the provisions of Section 120.57(1), Florida Statutes, but did not attend the hearing. However, the hearing having been set at Respondent's request was held and the Petitioner's case was presented.
The Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida which has as its responsibility the licensure and regulation of beverage license holders in the State of Florida. Harry's, Inc., which trades under the name of Night Gallery III, is the holder of License No. 58-1036, Series 2-COP. This license allows the consumption of alcoholic beverages on the premises, located at 6010 Old Winter Garden Road, Orlando, Florida.
On November 15, 1979, Beverage Officer Nathan Cahoon entered the licensed premises of Harry's, Inc., to investigate alleged Beverage Law violations. He observed a woman on the stage dancing who was subsequently identified as Denice Dyer. Thereafter, she approached Officer Cahoon and asked him to buy her a drink, which he did. She advised him that she was supposed to "hustle" drinks but not sex. Subsequently, she offered to give Officer Cahoon a "lap dance" which he refused. She also offered to "screw" Officer Cahoon (meaning to engage in sexual intercourse) for $25.00 or $30.00, and suggested using a back room of the licensed premises (Counts 1 and 2).
On November 15, 1979, Beverage Officer C. E. Cruce entered the licensed premises of Harry's, Inc., to investigate alleged Beverage Law violations. He was approached by a woman known as "Sissy," who offered to give him a "lap dance" for $5.00, which be accepted. To perform this "dance," "Sissy" straddled the lap of Officer Cruce and went through a series of gyrations while a record was playing. Her top was removed during this procedure, exposing her breasts, but not her nipples. Officer Cruce later observed "Sissy" dancing on the stage, where she had been summoned by the bartender.
Officer Cruce was approached by a woman known as "Misty," who solicited a drink from him. He purchased a beer for her at a cost of $2.50, which was one dollar more than the beer he purchased for himself. He observed that she paid the bartender the money he gave her (Count 3).
On November 15, 1979, Beverage Officer B. A. Watts, Jr., entered the licensed premises of Harry's, Inc., to investigate alleged Beverage Law violations. He observed a woman dancing on the stage who later became known to him as "Peaches." She approached Officer Watts and solicited a drink from him. He purchased a beer for her and paid the waitress one dollar more for the drink than he paid for his own (Count 4).
"Peaches" also performed a "lap dance" on Officer Watts and then offered to "take care" of him, stating that she would perform sexual intercourse or give him a "hand job" for $30.00 (Count 5).
On November 19, 1979, Beverage Officer J. E. Kiker, Jr., entered the licensed premises of Harry's, Inc., to investigate alleged Beverage Law violations. Officer Kiker was approached by Julia Bernice Brooks, who solicited five drinks from him. Officer Kiker purchased these drinks from the waitress for $2.50 each. Julie Bernice Brooks also offered to engage in sexual intercourse with Officer Kiker (Counts 6 and 11).
Officer Kiker observed Julie Bernice Brooks dance on stage two or more times. Although she was not nude, she pulled her costume aside so as to expose her pubic area to Officer Kiker and other patrons in the audience (Count 12).
Officer Kiker observed Ozzlyn Wright dancing on the stage. On two occasions, she disrobed and bent over so as to expose her vaginal and anal openings to the audience. On a third occasion, she caused the face of a male patron to make contact with her pubic area (Counts 13 and 14).
Officer Kiker observed a dancer on stage who he later identified as "Sissy." Although she was not nude, she pulled her costume aside so as to expose her pubic area to Officer Kiker and others in the audience (Count 15) . Officer Kiker observed that the bartender called Julie Bernice Brooks, Ozzlyn Wright, and "Sissy" to the stage periodically and that they received tips from members in the audience.
On November 29, 1979, Officer Kiker returned to the licensed premises of Harry's, Inc., for the further investigation of alleged Beverage Law violations. He was approached by Julie Bernice Brooks, who asked him to buy her wine, which he did (Count 19).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. It is concluded as a matter of
law that notice provided the Respondent prior to hearing in this cause was sufficient.
Section 561.29, Florida Statutes (1979), provides in part:
The Division is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when it is determined or found by the division upon sufficient cause appearing of:
Violation by the licensee or his or its agents, officer, servants, or employees, on the licensed premises, or
elsewhere while in the scope of employment, of any of the laws of this state . . .
* * *
(3) The division may impose a civil penalty against a licensee for any violation mentioned in the Beverage Law, or any rule issued pursuant thereto, not to exceed
$1,000 for violations arising out of a single transaction . . .
Section 562.131, Florida Statutes (1979), provides in part:
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.
Section 796.07, Florida Statutes (1979), provides in part:
It shall further be unlawful in the state:
To offer to commit, or to commit, or to engage in, prostitution, lewdness, or assignation.
Section 800.03, Florida Statutes (1979), provides in part:
It shall be unlawful for any person to expose or exhibit his sexual organs in any public place or on the private
premises of another, or so near thereto as to be seen from such private premises, in a vulgar or indecent manner, or so to expose or exhibit his person in such place, or
to go or be naked in such place. Provided, however, this section shall not be
construed to prohibit the exposure of such organs or the person in any place provided or set apart for that purpose . . .
Section 877.03, Florida Statutes (1979), provides in part:
Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engage in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree . . .
The above sited statutes provide, as a basis for beverage license suspension, revocation or civil penalty, the violation of any Florida law by a beverage licensee or its agents, officers, servants or employees. The evidence adduced in this proceeding established that the acts complained of were, in fact, performed by persons employed by or serving as agents of the licensee.
The beverage solicitation violations of Section 562.131(1) alleged in Counts 2, 3, 4, 6 and 19 were established by the evidence. The violations alleged in Counts 7, 8 and 9 were not supported by the evidence and should be dismissed. These multiple violations demonstrate that the Respondent licensee was responsible by either directing the solicitation of beverages or in failing to exercise reasonable diligence in the supervision of its agents, servants or employees. See G & B of Jacksonville, Inc. v. State, 371 So.2d 137 (Fla. 1st DCA 1979)
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that charges contained in Counts 7, 8, 9, 10, 16, 17 and 18,
Statutes (1979), specified in the Notice to Show Cause/Administrative Complaint be dismissed. It is further
RECOMMENDED that Respondent be found guilty of violations as alleged in Counts 1, 2, 3, 4, 5, 6, 11 and 19 of the Notice to Show Cause/Administrative Complaint. It is further
RECOMMENDED that Respondent be found guilty of violating Section 800.03, Florida Statutes (1979), as alleged in Counts 12, 13, 14 and 15 of the Notice to Show Cause/Administrative Complaint. It is further
RECOMMENDED that License No. 58-1036, Series 2-COP, held by Respondent, Harry's, Inc., be revoked.
RECOMMENDED this 31st day of December, 1980, in Tallahassee, Florida.
R. T. CARPENTER Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1980.
James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Mr. Charles A. Nuzum, Director Division of Alcoholic Beverages
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
