STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 80-1547
) (DABT NO. 29410-A)
NORMA D. KETTERING, t/a )
FANCY DANCER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. The hearing was conducted September 8, 1980, in Room 16, Dan T. McCarty Building, 941 West Morse Boulevard, Winter Park, Florida.
APPEARANCES
For Petitioner: James N. Watson, Jr., Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: No appearance
ISSUES
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, against the Respondent, Norma D. Kettering, t/a Fancy Dancer, in which the requested relief is for the imposition of civil penalty, suspension or revocation of the beverage license allegedly held by Norma D. Kettering. The Notice to Show Cause/Administrative Complaint contains the following accusations:
"1. On or about the 27th of March, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit "JOHN DOE" on your licensed premises, a public place, did unlawfully sell or deliver, or possess with intent to sell, or deliver, a controlled substance to wit; METHAQUALONE to one Robert R. Jones, Beverage Officer, for the sum of $3.50 each, U.S. Currency, contrary to F.S. 561.29 to wit F.S. 893.13.
On or about the 27th of March, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; DEBORAH MARIE ALTIZER, a/k/a "GINGER", dancer, on your licensed premises, a public place, did unlawfully sell or deliver or possess with intent to sell or deliver a controlled substance to wit; METHAQUALONE, to one ROBERT R. JONES, Beverage Officer, for the sum of $3.50 each, U.S. Currency, contrary to F.S. 561.29 to wit; F.S. 893.13.
On or about the 27th of March, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; TAMMIE R. FRANCIS, a/k/a "RINA", dancer, 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 ROBERT R. JONES, Beverage Officer, for the sum of $50.00 U.S. Currency, contrary to F.S. 561.29 to wit; F.S. 796.07(3) (A).
On or about the 9th of April, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit KATHY JEANETTE BROWN, a/k/a "KATHY", dancer, 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 C. E. LLOYD, Beverage
Officer, for the sum of $100.00, U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3) (A).
On or about the 9th of April, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; KATHY JEANETTE BROWN, a/k/a "KATHY", dancer, 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 C. E. LLOYD, Beverage Officer, for the sum of $100.00 U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3) (A).
On or about the 12th of April, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; "CINNAMON", dancer, did unlawfully offer to commit an act of prostitution on your licensed premises, a public place, by giving her body for sexual intercourse to one B.A. WATTS, JR., Beverage Officer, for the sum of
$20.00 U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3)(A).
On or about the 12th of April, 1980, you NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee,
to wit; TAMMIE R. FRANCIS a/k/a "RINA", dancer, did unlawfully offer to commit an act of prostitution on your licensed premises, a public place, by giving her body for sexual intercourse to one M. L. IMPERIAL, Beverage Officer, for the sum of $50.00 U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3) (A).
On or about the 13th of April, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; "TAMMY", dancer, did unlawfully offer to commit an act of prostitution on your licensed premises, a public place, by giving her body for sexual intercourse to one B.A. WATTS, JR., Beverage Officer, for the sum of
$75.00, U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3)(A).
On or about the 13th of April, 1980, you, NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; "LICORICE", dancer, did unlawfully offer to commit an act of prostitution on your licensed premises, a public place by giving her body for sexual intercourse to one M. L. IMPERIAL, Beverage Officer, for the sum of
$75.00 U.S. Currency, contrary to F.S. 561.29 to wit F.S. 796.07(3)(A).
On or about the 13th of April, 1980, you NORMA D. KETTERING, licensed under the beverage law, your agent, servant or employee, to wit; DEBORAH MARIE ALTIZER, a/k/a "GINGER", dancer, did unlawfully sell or deliver, or possess with intent to sell or deliver on your licensed premises, a public place, a controlled substance to wit; METHAQUALONE to one ROBERT R. JONES, Beverage Officer, for the sum of $4.00 each, U.S. Currency, contrary to FS. 561.29 to wit F.S. 893.13."
FINDINGS OF FACT
The Petitioner has complained against the named Respondent pursuant to those accusations as set forth in the issues statement of this Recommended Order. The Respondent requested a formal hearing to be conducted in accordance with the provisions of Subsection 120.57(1), Florida Statues, and although the Respondent did not attend the hearing, the Respondent having requested the hearing, the Petitioner's case was presented.
The Petitioner in this cause, State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida which has its responsibility the licensure and regulation of the several beverage license holders in the State of Florida.
Norma D. Kettering, who trades under the name of Fancy Dancer, is the holder of License No. 69-293, Series 2-COP, which allows for the consumption of alcoholic beverages on the premises. The license is for a premises at Highways
17 and 92, Fern Park, Florida.
The facts reveal that Beverage Officer Robert R. Jones went to the licensed premises on March 27, 1980, to investigate alleged Beverage Law violations. Those violations dealt with offers by the agents, servants or employees of the licensee to commit acts of prostitution.
Once inside the premises, Officer Jones was approached by a dancer in the premises whose stage name is "Ginger", who commented to Officer Jones that she was loaded on "Quaaludes". (The word "Quaalude" refers to the substance Methaqualone.) Officer Jones asked "Ginger" if she knew where he could get "Quaaludes". In response to this request, "Ginger" left the officer and went to an unknown white male who was seated in a chair in the establishment. He took two Methaqualones from his person and gave them to "Ginger", who in turn gave them to Officer Jones in return for money.
On that same date, March 27, 1980, "Ginger" was seen to dance for the patrons while attired In a "G" string costume. She danced both on the main stage and in the area of the audience and was seen to receive money in exchange for her dancing. She was also referred to by the master of ceremonies as "Ginger".
On March 27, 1980, Officer Jones was additionally approached by another dancer known as "Rina" who had been referred to by that name by the master of ceremonies who was announcing appearance of the dancers who were dancing on the main stage in the licensed premises. "Rina" then asked Jones if he wanted a "fuck." She explained to the officer that it would cost him $50.00; and that he would have to get rid of Beverage Officer Blanton, who was with Jones at the time. "Rina" also stated that she would "go more than once if she liked the first time". This conversation took place in the licensed promises.
On April 13, 1980, Officer Robert R. Jones returned to the licensed premises and encountered the dancer, "Ginger" and paid her $4.00 each for two Methaqualone which she obtained after going to the dancers' dressing room in the licensed premises and returning to Officer Jones. On that date, "Ginger" was still performing as a dancer in the licensed premises.
Beverage Officer C. E. Lloyd went to the licensed premises on April 9, 1980, as part of the investigation. While in the licensed premises, he was approached by a dancer, Kathy Brown, whose stage name is "Kathy", who asked Officer Lloyd if she could dance for him. He agreed to allow her to "lap dance". Beverage Officer Lloyd paid "Kathy" $5.00 for a "lap dance" she performed. This is a form of dance where the female dancer sits on the lap of the male patron and goes through a series of gyrations while a record is played. Officer Lloyd asked Brown what would happen when she "got things started".
Brown stated that she could take care of everything for him after she got off from work for a price of $100.00. He asked her what that meant and she replied she could "give you a fuck for $100.00".
After this conversation, dancer Brown was called by the master of ceremonies to dance for the benefit of those patrons in the licensed premises and she danced on the stage. She was wearing a bikini-type costume.
The conversation between Lloyd and Brown was overheard by Beverage Officer James A. Jones, Jr., who was with Lloyd on the date in question. She told Jones that he could drive Lloyd and her in the car while she serviced Lloyd and then she said she would "fuck" Jones, also for $100.00. Lloyd and Jones left the licensed premises and Brown followed them and upon entering the officers' vehicle, Brown was arrested for offering to commit prostitution.
On April 12, 1980, Beverage Officer Bethel Watts, Jr., was dispatched to the licensed premises to continue the investigation. While in the licensed premises on that date, he was approached by a female dancer whom he had seen perform on the stage as a dancer while wearing only a "G" string. This dancer had been referred to as "Cinnamon", with that reference being made by the master of ceremonies in the licensed premises. "Cinnamon" asked the Respondent if he wanted a "lap dance". He replied, "Yes" and the dancer sat on his lap and squirmed around for the duration of one record. The dancer then told Officer Watts that she could "give you anything you want right here." He stated that he could not afford it and she asked if he had $20.00. She further stated that she could, "give him a 'quickie'". The dancer then went back to the stage area. Officer Watts paid the dancer "Cinnamon" $3.00 for the "lap dance".
Officer Watts had gone to the licensed premises on April 12, 1980, with another Beverage Officer, Michael Lee Imperial. On that same date, a dancer who had been performing in the licensed premises who was known as "Rina" approached Officer Imperial and asked if he would like her to "lap dance". He agreed and she sat on his lap and performed the "dance" through three different records for a price of $5.00 each, a total price of $15.00. He asked the dancer if she did anything other than dance, to which she asked if he were a policeman, and he answered, "no". "Rina" then patted down the Beverage Officer to check to see if he were carrying any form of police identification. She then stated that she got off at 1:30 a.m. and would come by his room. She asked the Beverage Officer how much he could afford and he said "$50.00" and she indicated that she would give him "anything and everything he wanted" for the $50.00.
Officers Watts and Imperial returned to the licensed premises on April 13, 1980. While in the licensed premises, Officer Imperial was approached by a dancer who was known as "Licorice" and she asked if he wanted her to "lap dance". He responded, "Yes" and she "danced" one record for a cost of $5.00. Officer Imperial stated to the dancer that she "sure felt good" and stated that he "bet" she was good in bed. She responded by stating that, "I am" and in turn he stated that he "bet" that, "I'll never find out", to which she responded that he could find out for $75.00. In turn the officer wanted to know what he would get for $75.00 and the dancer said, "You will get whatever you want me to do". Officer Imperial said that he would pick her up at seven o'clock. Nothing further occurred concerning this event.
On the same date, April 13, 1980, Officers Watts and Imperial were sitting together and in the course of the conversation which Imperial had with one of the dancers, Imperial turned to Watts and asked Watts if he (Watts) wanted the dancer to get a girl for Watts. After some discussion, the dancer arranged to have another dancer whose stage name was "Tammy" and who had danced in the licensed premises and been referred to by the master of ceremonies by that name was brought and introduced to Officer Watts. (Watts had asked the
other dancer to ask "Tammy" if she "would party". The other dancer responded that "Tammy" "would party" but it would cost $75.00.) Watts asked "Tammy" if she "would party" and she responded by saying that for $75.00 she would do anything that he wanted up to two hours, at which point she had an appointment in the licensed premises. The conversation terminated at the point when Watts stated that he would pick up a bottle of whiskey.
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 the notice provided the Respondent prior to the hearing in this cause was sufficient.
The facts in this case show that an unknown male referred to in Count One (1) to the Notice to Show Cause/Administrative Complaint as "John Doe" was unlawfully involved in the sale and delivery and possessed with the intent to sell or deliver a controlled substance, to wit: Methaqualone. This transaction involved Beverage Officer Robert R. Jones and was in violation of Section 893.13, Florida Statutes.
The facts do not show that this unknown male referred to as "John Doe" was the agent, servant or employee of the licensee and the facts are not sufficient to demonstrate that the licensee was "culpably responsible for the alleged violations as a result of its own negligence, intentional wrongdoing or lack of diligence". See G & B of Jacksonville, Inc. v. State of Florida; 366 So.2d 877 (Fla. 1st DCA 1979). Therefore, the licensee has not violated the aforementioned provision of law and is not held accountable under Section 561.29, Florida Statutes.
The facts show that the dancer "Ginger" was an agent, servant or employee of the licensee and was involved in the sale or delivery and possession with intent to sell and deliver the controlled substance, Methaqualone, and, consequently, in violation of Section 593.13, Florida Statutes, as alleged in Count Two (2). The facts are insufficient to impute responsibility to the licensee. See G & B of Jacksonville, Inc., supra. Therefore, the Respondent is not held accountable under the terms and conditions of Section 561.29, Florida Statutes.
In connection with Count Three (3) of the Administrative Complaint, the fact show that the dancer "Rina" was an agent, servant and employee of the licensee and while on the licensed premises did unlawfully offer to commit an act of prostitution by offering to give her body for an act of sexual intercourse. This offer was made to Robert R. Jones, Beverage Officer, for a sum of $50.00 to be made by the officer and that arrangement was contrary to Subsection 796.07(3)(a), Florida Statutes. For the Respondent to be held accountable for this violation within the terms and meaning of Section 561.29, Florida Statutes, there must be established the aforementioned prerequisites found in G & B of Jacksonville, Inc., supra. Moreover, in that same opinion, the Court has held that a single violation by an agent, servant or employee of that licensee did not meet this standard of responsibility in that case. Based upon a reading of that opinion, the conclusion is reached in the present case that this single incident would not support the finding of a violation by the Respondent. Therefore, the Respondent is not deemed to be culpably responsible for the acts of "Rina" as occurred on March 27, 1980, and no action may be taken against the licensee as contemplated under Section 561.29, Florida Statutes.
The facts establish that the dancer, Kathy Brown, also known as "Kathy" did on April 9, 1980, while acting as agent, servant or employee of the licensee and in the licensed premises unlawfully committed an act of prostitution by offering to give her body for sexual intercourse to Beverage Officer C. E. Lloyd for the sum of $100.00 in violation of Subsection 796.07(3)(a), Florida Statutes. These acts standing alone are insufficient to impute culpability to the Respondent such that a penalty could be assessed against the license in keeping with the provisions of Section 561.29, Florida Statutes; however, these acts of Kathy Brown when considered in conjunction with the matters related to the dancer "Rina" which took place on March 27, 1980, the conclusion is reached that the Respondent is found to be culpable for having been negligent in failing to exercise reasonable care and diligence in supervising the aforementioned activities of her agents, servants, or employees; namely, the dancers "Rina" and Kathy Brown, also known as "Kathy". See Pauline
v. Lee, 147 So.2d 259 (Fla. 2d DCA 1962); G & B of Jacksonville, Inc. v. State of Florida, supra; and G & B of Jacksonville, Inc. v. State of Florida, 371 So.2d 137 (Fla. 1st DCA 1979). The Respondent is thereby guilty of a violation of Section 561.29, Florida Statutes, and is subject to the penalties therein.
Count Five (5) to the Administrative Complaint is a duplicate of Count Four (4); consequently, no further penalties may be imposed for such violations. Nonetheless, the facts of the exchange between Kathy Brown which took place between her and Beverage Officer James A. Jones, Jr., while she was acting as agent, servant and employee of the licensee, in the licensed premises, are sufficient to show that this agent was unlawfully offering to commit an act of prostitution by offering to give her body for sexual intercourse to Officer James A. Jones, Jr., for the sum of $100.00 was an act which would constitute a violation of Subsection 796.07(3)(a), Florida Statutes. The facts of that violation, although not charged, served to bolster the determination that the Respondent is culpable for that activity and the prior activity of Kathy Brown that occurred on April 9, 1980, and the former activity of the dancer "Rina" which took place on March 27, 1980, on the subject of prostitution.
The facts in this case show that as alleged in Count Six (6), the dancer "Cinnamon" was an agent, servant or employee of the Respondent and while in the licensed premises did unlawfully offer to commit an act of prostitution on April 12, 1980, by offering to give her body for sexual intercourse to Beverage Officer B. A. Watts, Jr., for the sum of $20.00, contrary to Subsection 796.97(3)(a), Florida Statutes. In view of the facts as found in this matter and the Conclusions of Law already reached, the Respondent is found to be in violation of Section 561.29, Florida Statutes, and is subject to the penalties therein based upon the acts of the dancer "Cinnamon" which took place on April 12, 1980.
As alleged in Count Seven (7) to the Administrative Complaint, the dancer "Rina" who was an agent, servant and employee of the Respondent on April 12, 1980, is found to have unlawfully offered to commit an act of prostitution in the licensed premises by offering to give her body for sexual intercourse to Beverage Officer M. L. Imperial for the sum of $50.00 contrary to Subsection 796.07(3)(a), Florida Statutes. For reasons as stated before, the Respondent is found to be in violation of Section 561.29, Florida Statutes, for this act of the dancer "Rina", and the Respondent is subject to the penalties found therein.
The facts show that on April 13, 1980, the dancer "Tammy" while acting as an agent, servant and employee of the Respondent unlawfully offered to commit an act of prostitution in the licensed premises by offering to give her body for
sexual intercourse to Officer B. A. Watts, Jr., for the sum of $75.00, contrary to Subsection 796.07(3)(a), Florida Statutes. Again, for reasons as stated before, the Respondent is found to be in violation of Section 561.29, Florida Statutes, for this act of the dancer "Tammy" and the Respondent is subject to the penalties found in that provision, in keeping with the allegations found in Count Eight (8) to the Administrative Complaint.
It is concluded as a matter of law that the Petitioner has proven its allegations found in Count Nine (9) to the Administrative Complaint, in that the dancer "Licorice" is found to be an agent, servant and employee of the Respondent on April 13, 1980, and further, that this dancer did unlawfully offer to commit an act of prostitution in the licensed premises by offering her body for sexual intercourse to Beverage Officer M. L. Imperial for the sum of $75.00, contrary to Subsection 796.07(3)(a), Florida Statutes. Under these circumstances, the Respondent is found to be in violation of Section 561.29, Florida Statutes, for that act of dancer "Licorice" and is held accountable for the penalties found in Section 561.29, Florida Statutes.
Finally, it is concluded as a matter of law that on April 13, 1980, the dancer "Ginger", an agent, servant and employee of the Respondent, unlawfully sold, delivered and possessed with intent to sell or deliver in the licensed premises a controlled substance, Methaqualone, to Robert R. Jones, a Beverage Officer, two pills for tie sum of $4.00 each, in violation of Section 893.13, Florida Statutes. It is concluded further, as a matter of law, that the Respondent is not responsible for this sale within the meaning of Section 561.29, Florida Statutes, and may not be held accountable for penalties in accordance with that provision, because the Respondent is not culpable for the act of this employee for reasons stated in this Recommended Order and supported by the case authority.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Counts One (1), Two (2), Three (3), Five (5) and Ten (10) of the Notice to Show Cause/Administrative Complaint be DISMISSED and that the Respondent not be held for further answer.
It is FURTHER RECOMMENDED that the license held by the Respondent, Norma D. Kettering, No. 69-293, Series 2-COP, be REVOKED in view of the violations as established through Counts Four (4), Six (6), Seven (7), Eight (8) and Nine (9) in the Notice to Show Cause/Administrative Complaint.
DONE AND ENTERED this 3rd day of October, 1980, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Norma D. Kettering, t/a Fancy Dancer
236 Highways 17 & 92 Fern Park, Florida
| Issue Date | Proceedings |
|---|---|
| Nov. 05, 1980 | Final Order filed. |
| Oct. 03, 1980 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 30, 1980 | Agency Final Order | |
| Oct. 03, 1980 | Recommended Order | Revoke Respondent's license for repeated violations of beverage laws. |
