STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1824

) 81-1825

BAY STREET, INC., t/a HOWARD'S ) G STRING, )

)

Respondent. )

)

RECOMMENDED ORDER

These matters came on for hearing in Jacksonville, Florida, on March 10 and June 23, 1982, 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

For Respondent: Lacy Mahon, Jr., Esquire

Joseph F. Farley, Jr., Esquire MAHON, MAHON & FARLEY, P.A.

350 East Adams Street Jacksonville, Florida 32202

These cases arose on Petitioner's Administrative Complaints/Notices to Show Cause charging that Respondent's agents, servants or employees committed acts of lewdness, offered to commit prostitution and solicited drinks in violation of Florida Statutes. The parties submitted proposed findings of fact, which have been incorporated herein to the extent they are relevant, material and consistent with the evidence. Upon consideration of all the evidence, Respondent's motions to strike Counts 17 and 27 of Case No. 51-1824 are denied.

FINDINGS OF FACT

1. Bay Street, Inc., trading as Howard's G" String, is located at 102 E. Bay Street, Jacksonville, Florida. This facility has been licensed by Petitioner at all times relevant to these proceedings, (Beverage License No. 269l9, Series 4-COP)

   
   

2. Case No. 81-1825 contains ten counts, five of which were voluntarily dismissed by Petitioner. The remaining counts involve alleged lewd and lascivious acts and an alleged offer to commit prostitution. These charges were based on an undercover investigation by the Jacksonville Sheriff's Office in May, June, August and September, 1980.

3. The testimony of Officer Beacham established that on May 8, 1980, the dancer Karen Wood rubbed a male patron's groin with her buttocks and the dancer Rosetta Smith allowed a male patron to rub her groin area. This conduct took place while the dancers were performing for individual customers. In both cases, their breasts were bare and in close proximity to the patrons' faces.

   
   

4. The testimony of Officer Bennett established that on June 26, 1980, the dancer Catherine E. Maryon permitted a male patron to fondle her groin area and to fondle her nude breasts. This conduct continued over a period of about five minutes while Maryon was performing for the patron.

   
   

5. The testimony of Officer Hall established that on August 30, 1980, the dancer Darlene Veldon Hughes allowed a male patron to massage her genital area and the insides of her legs while she was performing for him. She wore a bikini brief, but was otherwise nude during this procedure.

   
   

6. The testimony of Officer Perret established that on September 2, 1980, the dancer Trudy A. Blincoe offered to engage in sexual intercourse with him for

   $100. This was established by the nature of their discussion and her statement that she would give "no oral sex, just straight sex."

   
   

7. Petitioner conducted a separate investigation of Respondent in February, 1981, through its beverage officers who visited the licensed premises in undercover capacities. This investigation culminated in the 29 charges contained in Case No. 81-1824.

   
   

8. The testimony of Beverage Officer Johnson established that the dancer Belinda asked him to buy her a drink on February 11, 1981. The drink was delivered by the bartender-waitress, Kathy, who received the money for the drink. Kathy also approached Johnson and the dancer Laura on that date, and asked if Laura wanted another drink. Laura then asked Johnson for a drink, which he purchased from Kathy. Johnson's testimony further established that the dancer Ursala Kadlecik asked him to purchase a drink for her on February 27, 1981.

   
   

9. The testimony of Beverage Officer Arguelles established that on February 18, 1981, the dancer Barbie asked him to buy drinks for her on two occasions. Arguelles purchased the drinks as requested.

   
   

10. The testimony of Beverage Officer Lachman established that on February 11, 1981, the dancers Susan and Elizabeth each asked him to buy drinks for them, and on February 14 and 27, 1981, Susan again asked Lachman to buy drinks for her. On February 18, 1981, the dancers Karen, Angie and April each asked Lachman to buy drinks for them. He purchased the drinks as requested on each of these occasions.

    
    

11. The testimony of Beverage Officer Balaguer established that on February 12, 1981, the dancer Belinda asked him to buy her a drink and on February 18, 1981, the dancer Laura asked him to buy her a drink. He purchased the drinks as requested.

    
    

12. The testimony of Beverage Officer Sams established that on February 25, 1981, the dancer Belinda asked him to buy her a drink. She repeated the request and Sams purchased the drink.

13. The testimony of Beverage Officer Johnson established that on February 12, 1981, the dancer Marty approached him and performed her dance at his table. During this procedure, she rubbed his hand against her groin and also held it against her nude breast.

    
    

14. The testimony of Beverage Officer Lachman established that the dancer Susan performed dances at his table on February 25 and 27, 1981. On each occasion she rubbed her nude breasts against his face.

    
    

15. The testimony of Beverage Officer Johnson established that on February 5, 1981, the dancer Susan suggested a "date" to him. She stated that the price was $75 for the night and $25 as a penalty for her to leave the bar. She also stated that they would go to a motel and she would do "anything he wanted."

    
    

16. Johnson's testimony further established that on February 11, 1981, the dancer Lisa suggested that she and Johnson go to a "party" at a motel. She stated that the price for this would be $30 for the bar plus either $50 for one- half hour, $100 for an hour or $200 for the whole-night. She also said Johnson could do "anything" so long as he did not "get rough."

    
    

17. The testimony of Beverage Officer Arguelles established that on February 28, 1981, the dancer Lucy Brightwell offered to "go out" with him. She stated that the charge for this service was $100, which included $25 to leave the bar. She told Arguelles that he could do anything he wanted except "the back door." She also motioned to her vaginal area and stated, "straight fuck."

    
    

18. The testimony of Beverage Officer Lachman established that on February 27, 1981, he discussed leaving the bar with the dancer Ramona Strickland. The discussion involved three dancers leaving with the three undercover beverage officers (Lachman, Sams and Rowe) . Strickland stated that the price would include $25 for each dancer to leave the bar and a total charge of $248. Lachman later paid the bartender-waitress, Kathy, $88 for the three dancers to leave the bar.

    
    

19. The testimony of Beverage Officer Sams established that he discussed going to a hotel room with the dancer Belinda on February 27, 1981. She stated that the charge for this would be $25 to leave the bar and $50 per one-half hour for each dancer.

    
    

20. The testimony of Beverage Officer Rowe established that on February 25, 1981, he discussed "going out" with the dancers Laura and Belinda. He asked Laura if he would "get his money s worth," and she said that he would and that she was "good in bed."

    
    

21. Rowe continued the discussion on February 27, 1981, when he asked Laura if the "deal was still on." She stated that it was and asked him if he had made room arrangements. Laura also stated that she did not want "to fuck" in the same room with others. Rowe also discussed the transaction with the bartender-waitress, Kathy, who told him to meet the dancers at the side door and to have them back in 30 minutes.

    
    

22. Although no records were produced to establish that the dancers identified herein were employed by Respondent, the fact of employment was evident from the control exercised over them by the bartender-waitress, their costumes, their periodic dances on stage and their movements from one customer to another while performing individual dances and collecting fees for this service. Testimony in this regard was given by all Petitioner's witnesses and

    was not rebutted by Respondent. It was not shown that the identification of some dancers by their first names or nicknames only created any ambiguity in the charges or prejudice to Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

23. Section 561.29, Florida Statutes (1981), provides in part:

    
    

    1. The division is given full power and authority to revoked 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:

       1. 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 for suspension or revocation

          of a license except as permitted by chapter 92 or the rules of evidence.

          * * *

          (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. . . .

          
          

24. The above provisions empower Petitioner to revoke or suspend a beverage license for violation by the licensee or its employees of a federal or state law or applicable ordinance. Violation of the beverage statute or rules by the licensee may also result in fines of up to $1,000 per transaction.

    
    

25. These provisions have been construed to permit license suspension or revocation only where the license holder has knowledge of the illegal activity or has been negligent in supervising the licensed premises. 1/ Although a single, isolated incident outside the licensee's knowledge does not warrant a finding of negligence, violations of a persistent and recurring nature render the licensee culpably responsible. 2/

26. Section 562.131, Florida Statutes (1979), makes solicitation of alcoholic or other beverages by employees of the licensee a second degree misdemeanor. Petitioner demonstrated through substantial, competent evidence that 11 of the 12 violations charged in Case No. 81-1824 involved direct requests for the purchase of drinks by persons who were employees of Respondent, in violation of this statute (Count no. 18 was not proven and should be dismissed). Although it was not shown that the licensee had actual knowledge, the persistent and recurring nature of these violations renders it culpably responsible.

    
    

27. Subsection 796.07(3) , Florida Statutes (1979) provides in part:

    
    

    (3) It shall further be unlawful in the state:

    * * *

    1. To solicit, induce, entice, or procure another to commit prostitution, lewdness, or assignation with himself or herself.

       
       

28. The offers of sexual intercourse for pay described herein constitute offers of prostitution in violation of the above quoted provision. Such offers were made by employees of Respondent on the licensed premises as charged in Counts 1, 2, 21, 22, 23, 27, and 28, Case No. 81-1824, and Count 9, Case No. 81- 1825. The involvement of the bartender-waitress as charged in Count 29, Case No. 81-1824, was also demonstrated.

    
    

29. The recurrence of these offers and the involvement of various employees, including the bartender-waitress, establish the openness and persistence of this illegal activity. The licensee was negligent through its failure to properly supervise the premises in this regard, and is therefore culpably responsible. 3/

30. Section 798.02, Florida Statutes (1979), provides: Lewd and lascivious behavior.--

    If any man and woman, not being married to each other, lewdly and lasciviouly associate and cohabit together, or if any man or woman, married or unmarried, engages in open

    and gross lewdness and lascivious behavior, they shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

    
    

31. The acts complained of by Petitioner in Counts 20 and 25, Case No. 81- 1824, and Counts 1, 2, 7, and 8, Case No. 81-1825, were identified by competent testimony. However, Petitioner failed to establish any standards for determination of conduct which constitutes lewd or lascivious behavior.

Evidence of contemporary community standards is essential to a finding of such violation in an administrative proceeding. 4/

RECOMMENDATION

From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner find Respondent guilty as charged in Counts l

through 7, 9 through 17, 19, 21 through 24 and 26 through 29, Case No. 81-1824, and Count 9, Case No. 81-1825. It is further

RECOMMENDED that Petitioner dismiss all other charges against Respondent.

It is further

RECOMMENDED that Petitioner suspend Respondent's alcoholic beverage license no. 26-919 for a period of 45 days.

DONE and ENTERED this 26th day of August, 1982, in Tallahassee, Florida.

R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1982.

ENDNOTES

1/ G&B of Jacksonville Inc. v. State, 371 So.2d 138, 371 So.2d 139, 351 So.2d

1074 (Fla. 1st DCA 1979); Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962). 2/ Id.

3/ Id.

4/ See, Golden Dolphin No. 2, Inc. v. State, 403 So.2d 1372 (Fla. 5th DCA 1981), and Campbell v. State, 331 So.2d 209 (Fla. 1976).

COPIES FURNISHED:

James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Lacy Mahon, Jr., Esquire Joseph F. Farley, Jr., Esquire MAHON, MAHON & FARLEY, P.A.

350 East Adams Street Jacksonville, Florida 32202

Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco

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

Gary A. Rutledgep, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 81-001824

Orders for Case No: 81-001824