STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7697

)

LUNAR GUPPIES, INC., )

d/b/a CLUB SPACE FISH CAFE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on December 6, 1991, in Orlando, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Thomas A. Klein

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Howard S. Marks

Graham, Clark, Pohl & Jones

369 North New York Avenue Post Office Drawer 1690 Winter Park, Florida 32790

STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent is guilty of the violations alleged in the emergency order of suspension and notice to show cause dated November 25, 1991; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on November 25, 1991, when the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Department) entered an emergency order of suspension and notice to show cause and notified the Respondent, Lunar Guppies, Inc., d/b/a Club Space Fish Cafe, that its beverage license (number 58-03679, Series 2-COP) was subject to discipline based upon the allegations of the suspension and show cause documents. More specifically, the Department claimed the Respondent had violated provisions of Chapter 561, Florida Statutes, by allowing band members to perform lewd acts, and by keeping

its licensed premises for the purpose of lewdness. Respondent timely requested an expedited hearing in connection with the allegations, and the matter was scheduled for December 5, 1991.

The case was then forwarded to the Division of Administrative Hearings for formal proceedings on December 2, 1991. To accommodate the hearing officer's schedule, the matter was rescheduled to December 6, 1991. At the outset of the hearing, Respondent filed an answer and defenses to the emergency order of suspension which maintained that the Respondent did not foster or condone the performance, that the Respondent did not have prior knowledge of the performance activity, that the occurrence was the sole performance of such acts at the licensed premises, and that the Respondent exercised reasonable diligence in connection with the performanc

At the hearing, the Department presented the testimony of the following witnesses: Elizabeth Doyle, special agent employed by the Department; Emmitt Browning, patrol officer employed that the City of Orlando Police Department; and Karen Walker, a patron of the licensed premises on the night of the alleged lewd acts. The Department's exhibits numbered 6 through 10 were admitted into evidence. The Respondent presented the testimony of Michael Brown, sixty percent shareholder/owner of the licensee; and Robert Crouch, volunteer security worker for the licensee. Respondent's exhibits numbered 1 and 2 were admitted into evide

After the hearing, the parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix. A transcript of the proceedings has not been filed.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. Lunar Guppies, Inc. is the holder of an alcoholic beverage license, number 58-03679, series 2-COP, for a licensed premises known as Club Space Fish Cafe (Cafe) which is located at 536 West Church Street, Orlando, Florida. All activities described herein took place at the licensed premises.

   
   

2. Michael Brown is the president and majority shareholder of Lunar Guppies, Inc. Michael Buchanan is the corporation's vice president and he owns fifteen percent of the shares issued by the entity. At all times material to the allegations of this case, both owners, Mr. Brown and Mr. Buchanan, were present on the licensed premises.

   
   

3. Some time prior to November 18, 1991, Mr. Brown was contacted by an individual known to him only as "Merle." Apparently, Merle represented the band known as "G.G. Allin and the Murder Junkies" (hereinafter referred to as the group or the band) and was responsible for seeking work for the group. After some discussions, the parties reached a verbal agreement whereby the band would play the second set at the Cafe on November 18, 1991. Flyers for the performance billed the event as the group's only Florida show. All arrangements were verbal, and were conducted between Mr. Brown and Merle.

   
   

4. Initially, Mr. Brown expected the band to perform at 11:00 p.m. on the designated date; however, after checking in and reviewing the equipment, the group announced that they would return to perform around 11:30 p.m. During the

   check in meeting with the band, Mr. Brown advised the group that he did not expect them to damage property belonging to the Cafe.

   
   

5. Prior to the group's performance Cafe staff had covered speakers with plastic to protect them from moisture. Also, areas of the stage were lined with plastic. According to Mr. Brown, such precautions are standard when rowdy bands are booked for the Cafe. The speakers, which belong to the Cafe, are expensive and sensitive to moisture. Spills from beverages are not uncommon with certain types of bands.

   
   

6. Also prior to the group's performance on November 18, 1991, Mr. Brown prepared a written warning which was posted on the Cafe's door. While there is some dispute as to the exact language of the warning, the purpose was to warn Cafe patrons that the performance (by the band) was expected to contain language and subject matter which might be considered offensive or obscene by some. The exact language of the warning is unknown because shortly after the police arrived on the scene someone removed the sign and its current whereabouts is unknown. That the sign existed is not disputed.

   
   

7. Upon his arrival back at the Cafe, the lead singer of the band, G.G. Allin a/k/a Kevin Allin (Allin), appeared for the band's microphone check wearing only a hooded jacket, studded dog collar, and shoes. Shortly after the check, removed his jacket to reveal that he was nude but for the dog collar and shoes. Also at that time the drummer for the band appeared and played in the buff as well.

   
   

8. Just prior to, and during the first song performed by the band: Allin broke glass and rubbed it into his head causing a flow of blood which continued to stream down his head throughout his performance; he smashed his microphone into his head to further damage the wounds; he constantly grabbed his penis; and he leaped off the stage, knocked a female patron to the floor, and rubbed his face into her groin area simulating oral sex. The female patron kicked Allin and resisted his advances. At the conclusion of the first song, Allin grabbed a male patron and rubbed his penis against the man's head.

   
   

9. During the second song, Allin's acts prompted most of the Cafe's patrons to flee the interior of the licensed premises. Most fled after Allin defecated onto the Cafe floor, urinated into his own hand (so he could drink it), followed by his licking the floor (with the feces) and spitting and throwing it at patrons. When Allin returned to the stage, he stuck his finger into his rectum and rubbed the microphone in the anal area as well.

   
   

10. During the remainder of the performance (three or four more songs), Allin continued to dance around the Cafe (encumbered only by the microphone cord), continued to fondle his penis, allowed at least one patron to fondle his penis, and poured himself a beer at the bar.

    
    

11. At all times described above, Mr. Buchanan observed the performance and did nothing to deter Allin.

    
    

12. During the performance there was a sound and/or light technician above the Cafe's main floor who watched the band and, presumably, assisted.

    
    

13. The Cafe has flood lights above the main floor area where Allin performed.

14. When the patrons from the Cafe fled into the street outside, officers in a patrolling police car observed the commotion. Two officers, Browning and Arnott, went to the Cafe to investigate. Upon entering the premises, Officer Browning observed Allin on the floor rubbing his head into glass. Obviously, Officer Browning noted that Allin was au naturale. At that point the band's performance ceased. The term "performance" has been used herein loosely to describe what occurred at the Cafe; such "acts" could hardly be described as entertainment.

    
    

15. After taking statements from Cafe patrons, the police officers filed criminal charges against Allin in connection with the incidents described above.

    
    

16. Incidental to the arrest, Mr. Brown and Mr. Buchanan voluntarily went to the police station and filed sworn statements regarding the night's activities. While Mr. Buchanan was present behind the bar during the entire performance (approximately twenty-six minutes, six songs) his sworn statement is replete with factual errors regarding what occurred.

    
    

17. Additionally, Mr. Brown's sworn police statement incorrectly chronicled the acts which had occurred. Mr. Brown's explanation at the hearing has not been deemed credible nor were his comments regarding the disappearance of the written warning which had been posted on the Cafe's door.

    
    

18. At the start of Allin's performance, Mr. Buchanan and Mr. Brown should have provided appropriate security for the Cafe patrons. At least one female patron was touched by Allin and demonstrated her displeasure at such conduct. Volunteer security help (which incidently fled with the others) is not sufficient when a band's performance might be considered to be, and anticipated to be, rowdy (as the plastic suggested).

    
    

19. Once the band member Allin exhibited inappropriate conduct (as early as the first two songs), the Cafe owners should have taken measures to stop the performance.

    
    

20. Given public sensitivity related to exposure to body fluids, the Cafe owners were negligent in not aborting Allin's act once it began, and in not previewing his proposed performance since they were made aware of the potentially objectionable nature of the show (as evidenced by the warning and Mr. Brown's prior conversations with band members and groupies).

    
    

21. Even if Mr. Brown and Mr. Buchanan did not know the full extent of Allin's proposed performance, once he exhibited offensive and lewd conduct, they bore a burden to interrupt the act and take precautionary measures to insure the safety of the Cafe patrons. Mr. Brown's explanation that he was fearful for his own safety (and thus excused from action) has not been deemed credible. At the minimum, Mr. Brown or Mr. Buchanan could have sought assistance from 911 (which was not done). Had the police not arrived when they did, no telling how long the Cafe owners would have allowed Allin to reign. Presumably, until the set contracted for was finished. As it was, Mr. Brown paid the band for a partial performance.

    
    

22. Subsequent to the Allin performance, the Cafe owners have drafted a written agreement to attempt to avoid any reoccurrence of an unlawful performance.

    
    

23. The Cafe did not prior to, or subsequent to, November 18, 1991, allow an unlawful performance such as that which is described herein to be conducted

    on its licensed premises. The acts which occurred on November 18, 1991, are the sole basis for disciplinary action against this licensee.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

    
    

25. Section 561.29(1), Florida Statutes, provides, in pertinent part:

    
    

    1. 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:

       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 the 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 license 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.

          * * *

          (c) Maintaining a nuisance on the licensed premises.

          
          

26. Section 796.07, Florida Statutes, provides, in part:

    
    

    1. As used in this section:

       * * *

       (b) "Lewdness" means any indecent or obscene act.

       * * *

       (e) "Sexual activity" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object, or the handling or fondling of the sexual organ of

       another for the purpose of masturbation; however, the term does not include acts done for bona

       fide medical purposes.

    2. It is unlawful in the state:

       (a) To keep, set up, maintain, or operate any place, structure, building, or conveyance for the purpose of lewdness, assignation, or prostitution.

       * * *

    3. It is also unlawful in the state:

       (a) To offer to commit, or to commit, or to engage in prostitution, lewdness, or assignation.

       
       

27. Section 847.001(11), Florida Statutes, provides: When used in this chapter:

    
    

    (11) "Sexual conduct" means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation,

    or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with

    a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.

    
    

28. Section 847.011(4), Florida Statutes, provides:

    
    

    (4) Any person who knowingly promotes, conducts, performs, or participates in an obscene show, exhibition, or performance by live persons or a live person before an audience is guilty of a misdemeanor of the first degree. . .

    
    

29. Based upon the record in this case, the Department has established by clear and convincing evidence that the Respondent allowed a nuisance to be maintained on its licensed premises. The acts complained of in this case, and left unbridled or unrestricted by the Respondent, are so outrageous as to warrant disciplinary action. Respondent allowed Allin to perform after numerous lewd acts had been exhibited. Respondent allowed Allin to perform after reasonable men would have been concerned for the health and safety of Cafe patrons. Indeed, officers of the Respondent did not take action to stop the performance even when the volunteer security man fled. One owner nonchalantly served beer from the bar during the act. Such complete disregard for the statutes governing lewd and sexual behaviors rises to the level of negligence despite the fact that it occurred only during one night. It is apparent in this case that the Cafe owners failed to use ordinary care in the maintenance of the premises since they failed to preview the band's performance (they knew it was potentially obscene, and at the minimum offensive), failed to have adequate security (volunteer help when a rowdy performance is anticipated is inadequate), and failed to abort the performance once the lewd acts were exhibited. Such conduct cannot be tolerated by licensees.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order suspending Respondent's alcoholic beverage license for a period of ninety (90) days retroactive to the date the emergency order was entered.

DONE and ENTERED this 7th day of January, 1992, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this

day of January, 1992. APPENDIX TO CASE NO. 91-7697

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

The Petitioner footnoted many of its proposed findings of fact. Such footnotes are not accepted as they contain argument, comment, or irrelevant matters. The proposed findings have been addressed without reference to footnotes as follows:

1. Paragraphs 1 through 5 are accepted.

2. With the deletion of the phrase "Once back on the stage" paragraph 6 is accepted.

3. Paragraph 7 is accepted.

4. With regard to paragraph 8 it is unknown if Merle was, in fact, the band's manager; otherwise, the paragraph is accepted.

5. With the deletion of the second sentence which is rejected as hearsay, paragraph 9 is accepted.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

NOTE: Respondent's proposed findings of fact begin with the numbered paragraph 4.

1. Paragraphs 4 through 8 are accepted.

2. Paragraph 9 is accepted but is irrelevant.

3. Paragraph 10 is rejected as argument or comment. The weight of the credible evidence suggests that, utilizing ordinary care, the Cafe owners should have made inquiries to assure that the band would not perform lewd acts (they were on notice of the band's potential for offensive behavior).

4. The first sentence of paragraph 11 is accepted; otherwise rejected as argument or comment.

5. Paragraph 12 is rejected as contrary to the weight of the credible evidence. Respondent knew the band's performance might be offensive or obscene and failed to use ordinary care to assure it would not be unlawful.

6. Paragraph 13 is accepted to the extent that it states most patrons fled; however, others remained and the Respondent allowed the performance to continue.

COPIES TO:

Janet E. Ferris, Secretary Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32399-1000

Donald D. Conn General Counsel

Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32399-1000

Richard W. Scully Director, Division

of Alcoholic Beverages and Tobacco

Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32399-1000

Thomas A. Klein Chief Attorney

Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32399-1000

Howard S. Marks

Graham, Clark, Pohl & Jones

369 North New York Avenue Post Office Drawer 1690 Winter Park, Florida 32790

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-007697

Orders for Case No: 91-007697