CORPORATION, GEORGE )
GIBALSKI, President, t/a )
SHALIMAR MOTEL, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Miami, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on August 5, 1981. The parties were represented by counsel:
APPEARANCES
For Petitioner: Harold F. X. Purnell, Esquire
725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Richard Karl Goethel, Esquire
2714 Ponce de Leon Boulevard Coral Gables, Florida 33134
By notice to show cause dated October 22, 1980, petitioner alleged that respondent entered into a stipulation with petitioner which has been violated in that, a prostitution arrest was made on the premises of the Shalimar Motel." The notice to show cause alleged "that Long, Susan Joy [was] arrested on September 9, 1980 for offering to commit prostitution and resisting arrest w/o violence on the premises of the Shalimar Motel [and that she] was convicted and sentenced on September 16, 1980, on [both] charges." By amendment to the notice to show cause, petitioner alleged that the stipulation referred to in the notice to show cause was entered into on "May 28, 1980, and approved by the Director, Division of Hotels and Restaurants on June 9, 1980" and that respondent fail[ed] to maintain a register, in the form and manner required by Section 509.101, Florida Statutes, as evinced by the conviction of one Wazir Moosa, an agent, employee or servant of the respondent, for a violation of Section 509.101 in the County Court Misdemeanor Division, in and for Dade County (11th Judicial Circuit) Case No. 80-60696, on November 20, 1980, upon a plea of guilty."
Petitioner called no witnesses. George Gibalski and Gwen Phillips testified on behalf of respondent.
FINDINGS OF FACT
F.T.W. Corporation was licensed by petitioner to operate the Shalimar Motel and employed Wazir Moosa, a/k/a Mohammed Siddiq at all pertinent times. (Prehearing Stipulation.) The Shalimar Motel) is located at 6300 Biscayne Boulevard in Miami, Florida. (Testimony of Gibalski.) A clerk employed at the Shalimar Motel was once arrested on charges of keeping an improper register. (Testimony of Gibalski.)
Respondent employed Gwen Phillips as a bookkeeper on May 28, 1980. (Testimony of Phillips and Gibalski.) She was not then and never has been an officer, director, or shareholder in respondent. (Testimony of Phillips and Gibalski.) Because George Gibalski, respondent's only officer and sole stockholder, was out of town on May 28, 1980, he sent Ms. Phillips in his stead to a meeting with five men employed by petitioner. (Testimony of Phillips and Gibalski.) At the meeting Ms. Phillips signed a stipulation "to resolve . . charges" made in a notice to show cause dated May 5, 1980. Petitioner's Exhibit No. 1. The stipulation, which was signed by petitioner's director on June 9, 1980, called for respondent to pay a civil penalty of five hundred dollars ($500), and provided "Licensee further agrees [i]f additional prostitution arrest are [sic] made on the premises of the Shalimar Motel license number 23- 14946-H shall be subject to a one year suspension." Petitioner's Exhibit No. 1. After Mr. Gibalski was informed of the terms of the stipulation, he personally authorized payment of five hundred dollars ($500) to petitioner on behalf of respondent F. T. W. Corporation. (Testimony of Gibalski; Prehearing Stipulation.)
Neither Mr. Gibalski nor Ms. Phillips has ever met Susan Joy Long, nor has Ms. Long ever been employed by respondent. (Testimony of Gibalski and Phillips.)
CONCLUSIONS OF LAW
Petitioner did not prove that Wazir Moosa or any other employee of respondent was convicted of a violation of Section 509.101, Florida Statutes (1979) or of any other offense. Neither did petitioner establish any unlawful irregularity in the manner in which respondent maintained its register.
In support of its allegation that a Susan Long was arrested and convicted for prostitution on respondent's premises, petitioner offered an arrest report, Petitioner's Exhibit No. 2, a court document apparently reflecting that Susan Long was not adjudicated guilty of any offense, Petitioner's Exhibit No. 3, and a commitment order reflecting that she was nonetheless "sentenced to serve 15 days" (possibly as a condition of probation). Petitioner's Exhibit No. 4. Petitioner did not prove a conviction.
Ruling on the admissibility of the arrest report was. reserved at the hearing, at the parties' request, in order that they might submit memoranda on the question, which both parties did in fact file on August 31, 1981. Petitioner relies on Section 90.803(8), Florida Statutes (1979), which makes admissible:
(8) PUBLIC RECORDS AND REPORTS. - Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency,
or matters observed pursuant to
duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of informa- tion or other circumstances show their lack of trustworthiness.
Respondent contends that, since a judgment of conviction is inadmissible to establish the truth of the facts on which it rests, citing, e.g. , Boshnack v. World Wide Rent-A-Car, Inc., 195 So.2d 216 (Fla. 1967), it necessarily follows that an arrest report is inadmissible for that purpose. Here, however, petitioner seeks to establish not the fact of the offense, but the fact of the arrest.
The statute makes clear that the arrest report or any other record, statement or compilation is inadmissible "in criminal cases [if it consists of] matters observed by a police officer or other law enforcement personnel." Section 90.803(8), Florida Statutes (1979) . Although administrative proceedings are civil, license revocation proceedings like the present case have consistently been held to be "penal in nature", e.g., State ex rel Vining v. Florida Real Estate Commission, 781 So.2d 487 (Fla. 1973), and should be treated as "criminal cases" for purposes of Section 90.803(8), Florida Statutes (1979). Respondent's objection to the admission of Petitioner's Exhibit No. 2 is accordingly sustained. Without the arrest report, there is insufficient evidence to establish any of the allegations of the notice to show cause.
