STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF BUSINESS ) AND PROFESSIONAL REGULATION, ) DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4855

)

MERMAID BAR, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on October 28, 1993, in West Palm Beach, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John F. Gilroy, Esquire

Assistant General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Ronald E. Jones, Esquire

1610 Southern Boulevard

West Palm Beach, Florida 33406 STATEMENT OF THE ISSUES

1. Whether Respondent should be held responsible for the violations alleged in the amended Administrative Action?

   
   

2. If so, what penalty should be imposed against it?

   
   

   PRELIMINARY STATEMENT

   
   

   On July 1, 1993, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (hereinafter referred to as the "Department") issued a nine-count Administrative Action against Respondent.

   Respondent denied the allegations of wrongdoing advanced in the Administrative Action and requested a formal hearing. On August 25, 1993, the Department referred the matter to the Division of Administrative Hearings (hereinafter referred to as the "Division") for the assignment of a hearing officer to conduct the formal hearing Respondent had requested.

   On September 24, 1993, the Division issued a Notice of Hearing advising the parties that the hearing would be held on October 28, 1993. The hearing was held on October 28, 1993, as scheduled. At the outset of the hearing, the Department requested leave to amend the Administrative Action. The request was granted by the Hearing Officer. As amended, the Administrative Action alleges the following:

   
   

   COUNT #1

   
   

   On April 7, 1993, you, MERMAID BAR, INC., or

   your agent(s), servant(s), or employee(s), to wit: "KELLIE," engaged in lewdness by repeatedly rubbing their buttocks/vagina against the groin area of patrons and rubbing [her] bare breasts on patrons' faces, contrary to Section 796.07(3)(a), F.S., within Section 561.29(1)(a), F.S.

   
   

   COUNT #2

   
   

   ON May 6, 1993, you, MERMAID BAR, INC., a

   licensed vendor, and/or your agent(s), servant(s), or employee(s), to wit: LUCIA MARIA CAMPOS, unlawfully committed or engaged in lewdness by dancing topless and fondling her breasts and rubbing her buttocks against Special Agent STOOPS' groin area contrary to Section 796.07(3)(a), F.S., within Section 561.29(1)(a), F.S.

   
   

   COUNT #3

   
   

   On May 12, 1993, you, MERMAID BAR, INC., a

   licensed vendor, and/or your agent(s), servant(s), or employee(s), to wit: KERREN

   1. FLORES, unlawfully committed or engaged in lewdness by dancing topless, by rubbing her breasts, licking her nipples, and grinding her buttocks against Agent JEFF ANDREWS' groin area, contrary to Section 796.07(3)(a), F.S., within Section 561.29(1)(a), F.S.

COUNT #4

On May 12, 1993, you, MERMAID BAR, INC., a

licensed vendor, and/or your agent(s), servant(s), or employee(s), to wit: LAURA J. CHAPMAN, unlawfully committed or engaged in lewdness by dancing topless, by rubbing her breasts, licking her nipples, and grinding her buttocks against Agent JEFF ANDREWS' groin area, contrary to Section 796.07(3)(a), F.S., within Section 561.29(1)(a), F.S.

COUNT #5

On May 12, 1993, you, MERMAID BAR, INC., a

licensed vendor, and/or your agent(s), servant(s), or employee(s), to wit: ANGELA RATLIFFE KING, unlawfully performed an obscene show, by dancing nude, by caressing her vaginal area and simulating masturbation and by clearly exhibiting her genitals, contrary to Section 847.011(4), F.S., within Section 561.29(1)(a), F.S.

COUNT #6

On May 12, 1993, you, MERMAID BAR, INC., a

licensed vendor, and/or your agent(s), servant(s), or employee(s), to wit: MAIJA LIISA CARDINAUX, unlawfully committed or engaged in lewdness by dancing topless, by fondling her breasts, and rubbing her anal and vaginal area against Agent KEVIN O'BRIEN'S groin and leg area, contrary to Section 796.07(3)(a), F.S., within Section 561.29(1)(a), F.S.

COUNT #7

On May 12, 1993, you, MERMAID BAR, INC., a

licensed vendor, and/or your agent(s), servant(s), or employee(s), to wit: LISA BERLING, unlawfully performed an obscene show, by dancing nude and rubbing her vagina with her fingers and simulating masturbation and by clearly exhibiting her genitals, contrary to Section 847.011(4), F.S., within Section 561.29(1)(a), F.S.

COUNT #8

On May 12, 1993, you, MERMAID BAR, INC., a

licensed vendor, and/or your agent(s), servant(s), or employee(s), to wit: JAMES GALBRAITH, unlawfully allowed your employees ANGELA RATLIFFE KING and LISA BERLING to

perform an obscene show, contrary to Section 847.011(4), F.S., within Section 561.29(1)(a), F.S.

COUNT #10 1/

On the below listed dates, you, MERMAID BAR, INC., a licensed vendor, and/or your agent(s), servant(s), or employee(s), engaged

in lewdness by simulating sexual intercourse, simulating masturbation, and/or exposure of sexual organs:

Date Employee

1. April 7, 1993 "KELLIE"

2. May 6, 1993 "LUCIA CAMPOS" 3. May 12, 1993 "K. FLORES," "L.

CHAPMAN," "A. KING," "M. CARDINAUX," AND "L. BERLING"

contrary to 796.07(2)(a), F.S., within 561.29(1)(a), F.S.

During the evidentiary portion of the hearing, the testimony of six witnesses was presented: Detectives Jeffrey Andrews, Ted Smith and Kevin O'Brien of the Palm Beach County Sheriff's Office; Special Agents Danny Stoops and Johnnie Wilson of the Department; and James Galbraith, the manager of the Mermaid Bar. In addition to the testimony of these six witnesses, a total of four exhibits (Petitioner's Exhibits 1 and 2 and Respondent's Exhibits 1 and 2) were offered into evidence. All of these exhibits, except for Respondent's Exhibit 2, were admitted by the Hearing Officer.

Following the conclusion of the evidentiary portion of the hearing, the Hearing Officer advised the parties of their right to file post-hearing submittals and established a deadline for the filing of such submittals. The parties filed their post-hearing submittals on December 8, 1993. Each contains what are labelled as "findings of facts." These "findings of fact" proposed by the parties have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, the factual stipulations of the parties, and the record as a whole, the following Findings of Fact are made:

Respondent and the Mermaid Bar

1. Respondent, whose sole corporate officer and shareholder is Robert Simone, holds alcoholic beverage license number 60-00429, Series 4-COP issued by the Department.

   
   

2. The licensed premises is the Mermaid Bar (hereinafter referred to as the "Mermaid"), a bar located in Palm Beach County that, like a handful of others in the County, offers adult entertainment featuring female dancers wearing little or no clothing.

   
   

   Operation and Management of the Mermaid

   
   

3. James Galbraith manages the Mermaid pursuant to a verbal agreement that he has with Simone.

   
   

4. Simone nonetheless plays an active role in the day-to-day operation of the bar and pays regular visits to the establishment, usually in the daytime during the morning hours, to check on things.

5. Among the managerial responsibilities that Simone has delegated to Galbraith is authority over personnel matters, including the hiring, disciplining and firing of the barmaids and dancers who work at the bar.

   
   

6. Galbraith exercised such authority when, with input from Simone, he drafted the following written "[r]ules for conduct of dancers" (hereinafter referred to as the "Rules"):

   
   

   1. Anyone dancing on stage [is] not allowed to show any pubic area. Anyone doing so will be dismissed.

   2. Anyone dancing on floor must wear cover up at all times.

   3. All girls are to work a minimum of 4 days.

   4. No girls are to solicit for anything (drinks, etc.).

   5. No girls are to take phone numbers or give out phone numbers.

   6. Private dances are $5.00 or $10.00 contribution. 2/

   7. No bumping or grinding, no letting customers grab breast or pubic area.

   8. No touching of customers.

   9. You will be called down one time. If you have to be called down twice, you will be dismissed.

   10. If you have a problem with a customer, stop dancing and get a bouncer. Do not try to handle it yourself.

       
       

7. Each dancer receives a copy of the Rules upon being hired. In addition, a copy is posted in the dancers' dressing room.

   
   

8. When he is present at the bar, Galbraith is responsible for monitoring the activities taking place on the premises and maintaining order.

   
   

9. He relies on the barmaids to assist him in keeping an eye on the dancers.

   
   

   Prior Disciplinary Action

   
   

10. In November of 1992, the Department's predecessor, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (hereinafter referred to as "DBR"), served on Respondent a Notice to Show Cause that contained the following allegations:

    
    

    1. On or about August 20, 1992, you, MERMAID BAR, INC., a vendor licensed under the

       beverage laws of the State of Florida, through you, your agents, servants, employees or entertainers, to wit: LESSIE MAE STRANGE AKA LESSIE MAE COLLIGAN, while on your licensed premises, did unlawfully commit or engage in lewdness by dancing in a topless state for Special Agent Sgt. HOOPER, rubbing her breasts across the Agent's face and body

       and forcefully rubbing her crotch area against the Agent's groin, simulating sexual intercourse, in exchange for U.S. Currency, contrary to Section 796.07(3)(a), F.S., within Section 561.29., F.S.

    2. On or about August 20, 1992, you, MERMAID BAR, INC., a vendor licensed under the

       beverage laws of the State of Florida, through you, your agents, servants, employees or entertainers, to wit: DEBRAH BACON, while on your licensed premises, did unlawfully commit or engage in lewdness by dancing in a topless state for Special Agent Sgt. HOOPER, rubbing her breasts across the Agent's face and body and forcefully rubbing her crotch area against the Agent's groin, simulating sexual intercourse, in exchange for U.S. Currency, contrary to Section 796.07(3)(a), F.S., within Section 561.29., F.S.

    3. On or about August 20, 1992, you, MERMAID BAR, INC., a vendor licensed under the

       beverage laws of the State of Florida, through you, your agents, servants, employees or entertainers, to wit: DEBBIE ANN SEIWELL, while on your licensed premises, did unlawfully commit or engage in lewdness by dancing in a topless state for Special Agent STOOPS and Sgt. HOOPER, rubbing her breasts across the Agent's face and body and forcefully rubbing her crotch area against the Agent's groin, simulating sexual intercourse, in exchange for U.S. Currency, contrary to Section 796.07(3)(a), F.S., within Section 561.29., F.S.

    4. On or about August 20, 1992, you, MERMAID BAR, INC., a vendor licensed under the

       beverage laws of the State of Florida, through you, your agents, servants, employees or entertainers, to wit: BARBARA GENE PORTER, the Manager/Person in Charge, did maintain a place for lewdness, by allowing female dancers to rub their exposed breasts across the faces and bodies of Special Agents STOOPS and Sgt. HOOPER and by allowing the female dancers to forcefully rub their buttocks and crotch areas into the groin areas of Special Agents STOOPS and Sgt.

       HOOPER, simulating sexual intercourse, a violation of Section 796.07(2)(a), F.S., within Section 561.29, F.S.

       
       

11. These activities in which the dancers allegedly engaged with Stoops and Hooper are commonly referred to, in adult entertainment establishments, as "lap dances."

12. On May 28, 1993, Simone signed a consent agreement acknowledging the violations alleged in the Notice to Show Cause and agreeing to pay a fine of

    $2,000.00 to settle the matter. DBR accepted and signed the agreement on July 6, 1993.

    
    

    The April 7, 1993, Undercover Operation

    
    

13. On April 7, 1993, the Department conducted an undercover operation at the Mermaid in which Special Agent Johnnie Wilson participated.

    
    

14. While Wilson was at the bar, he observed from his vantage point a female dancer whose stage name was "Kellie," as well as five or six other female dancers, in exchange for money, perform "lap dances" with patrons of the establishment. 3/

    
    

15. Galbraith and a barmaid were on the premises at the time and neither took any action to try to stop "Kellie" and the other dancers from "lap dancing."

    
    

16. No arrests were made as a result of this April 7, 1993, undercover operation.

    
    

    The May 6, 1993, Undercover Operation

    
    

17. Special Agent Stoops went to the Mermaid the afternoon of May 6, 1993, as part a follow-up undercover operation conducted by the Department.

    
    

18. After he had been there for approximately 15 to 20 minutes, he was approached by one of the dancers working at the establishment that afternoon, Lucia Maria Campos.

    
    

19. Campos asked Stoops if he wanted a "lap dance." Stoops responded in the affirmative.

    
    

20. Campos thereupon removed her top (but not her bottoms) and proceeded to "lap dance" with a fully clothed Stoops. During the "lap dance," Campos rubbed her breasts against Stoops' chest and grinded her groin and buttocks in the area of his crotch in a provocative manner.

    
    

21. Stoops paid Campos for the "lap dance."

    
    

22. Stoops observed Campos "lap dance" with another patron during his visit to the Mermaid that afternoon.

    
    

23. Although Campos performed her "lap dances" openly, in plain view, neither the barmaid on duty nor anyone else on the premises expressed any disapproval of Campos' actions.

    
    

    The May 12, 1993, Undercover Operation

    
    

24. On May 12, 1993, at around 10:00 or 11:00 p.m., three detectives from the Palm Beach County Sheriff's Office working undercover, Jeffrey Andrews, Kevin O'Brien and Ted Smith, entered the Mermaid.

    
    

25. The purpose of their visit was to determine if any of the dancers working at the establishment were engaging in lewd behavior.

26. After entering the Mermaid, Andrews and O'Brien sat down next to each other at a table in front of the stage on which the dancers performed. Smith took a seat near the bar.

    
    

27. While Andrews was seated at the table, Kerren Flores, a dancer who was working at the Mermaid that evening, came up to him and asked him if he wanted a "lap dance" for $10.00.

    
    

28. Flores was wearing a bikini top and G-string bottom. After Andrews accepted her offer, she took off her top. Standing approximately two feet in front of Andrews, she began fondling her breasts with her hands and manipulating, and then licking, her nipples. Next, she leaned over and rubbed her bare breasts against the lower portion of Andrews' face. She then turned around, sat down on Andrews' lap and started to simulate sexual intercourse by grinding her buttocks into his groin area.

    
    

29. The "lap dance" lasted the length of one song that was being played by the DJ over the bar's sound system. After it was over, Andrews' paid Flores the

    $10.00 she had requested for the "dance."

    
    

30. Another dancer working at the Mermaid that evening was Laura Chapman. While performing on stage, she removed all of her clothing, fondled and licked her bare breasts and suggestively stroked her vaginal area.

    
    

31. After finishing her performance on stage and putting back on her bikini top and G-string bottom, Chapman approached Andrews and inquired if he was interested in a "lap dance." Andrews said he was and, at Chapman's request, the two moved to a different table. Chapman then proceeded to remove her bikini top and performed a "lap dance" with Andrews which was virtually identical to the one Flores had performed with him earlier that evening. Andrews paid Chapman the $10.00 she had asked for to perform the "lap dance."

    
    

32. Andrews' colleague, O'Brien, was also propositioned during the undercover operation that evening by one of the bar's dancers.

    
    

33. Maija Liisa Cardinaux was the dancer who propositioned him. She was also helping serve drinks that evening.

    
    

34. Cardinaux walked up to O'Brien and asked him if he wanted to order a drink. At the same time, she inquired if he wanted a "lap dance." O'Brien expressed an interest in the latter.

    
    

35. Cardinaux led O'Brien to another area of the bar and had him sit down on a bar stool.

    
    

36. After O'Brien was seated, Cardinaux placed her hands on his shoulders and told him to relax.

    
    

37. Cardinaux, who was wearing a bikini top and bottom, then took off her top and started to fondle her breasts and lick her nipples while standing in front of O'Brien. Next, she put her arms around O'Brien and pulled his head into her breasts. She then let go of O'Brien, turned around, sat down on his lap and began to vigorously rub her buttocks and groin area against his crotch. These bumping and grinding movements simulating sexual intercourse lasted approximately one to one and a half minutes.

38. Two other dancers working at the Mermaid that evening during the undercover operation, Angela Ratliffe King and Lisa Berling, gave sexually suggestive performances that were patently offensive, that lacked any serious artistic value and that the average person, applying contemporary community 4/ standards, would find, taken as a whole, appealed to prurient interests.

    
    

39. King was initially dressed in a black bra and panties. During the first song that she danced to on stage, she took off her top and started to fondle her breasts. She thereupon turned her back to the audience, slapped and rubbed her buttocks, and began to fondle and stroke her vaginal area.

    
    

40. During the second song, she removed her panties and exposed her vaginal area to the audience. She then turned around and, with her back to the audience and her legs a little more than shoulder width apart, bent over, put her arms between her legs and started to pull her buttocks apart, further exposing her vaginal area to the audience. Still bent over with her back to the audience, she began to stroke her vaginal area with her fingers as if she was masturbating.

    
    

41. Lisa Berling gave a similar performance, except that, unlike King, she was completely nude throughout her performance and, although she started out on the stage, she concluded her performance on the counter of the bar, within an arm's length of where one of the undercover detectives, Ted Smith, was seated, along with other patrons.

    
    

42. Galbraith's wife, Ann Galbraith, was tending bar at the time of Berling's performance and she commented to Smith about the performance upon its conclusion. From her vantage point, Ms. Galbraith was able to see most of the public area of the establishment.

    
    

43. Her husband was in the back of the establishment near the DJ booth during most of the approximately one and a half hours that Detectives Andrews, O'Brien and Smith were in the Mermaid.

    
    

44. At no time during the detectives' undercover operation did Galbraith, his wife, or anyone else that had been hired to work at the Mermaid do anything to discourage or stop the frequent "lap dancing" or the performances of King and Berling, notwithstanding that these activities were in violation of the Rules that Galbraith had given to each dancer and posted in the dancers' dressing room.

    
    

45. Arrests were made as a result of the detectives' May 12, 1993, undercover operation.

    
    

46. The action taken by the Palm Beach County Sheriff's Office in the instant case is no different than what it has done in similar cases involving other adult entertainment establishments where there is "lap dancing" or similar activity taking place.

    
    

    Respondent's Liability

    
    

47. Although Simone may not have been present on the premises during either the April 7, 1993, May 6, 1993, or May 12, 1993, undercover operations, given the persistent and repeated instances of "lap dancing" and other flagrant acts of indecency engaged in by the dancers working at the Mermaid, the inference is made that Simone either fostered, condoned, or negligently overlooked these acts.

    CONCLUSIONS OF LAW

    
    

48. The Department is statutorily empowered to suspend or revoke an alcoholic beverage license, such as the one held by Respondent, based upon any of the grounds enumerated in Section 561.29(1), Florida Statutes, provided that the proof establishing the existence of the such grounds is clear and convincing. See Pic N' Save v. Department of Business Regulation, 601 So.2d

    245 (Fla. 1st DCA 1992); Evans Packing Company v. Department of Agriculture and Consumer Services, 550 So.2d 112, 116 (Fla. 1st DCA 1989). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

49. Among the grounds upon which the suspension or revocation of an alcoholic beverage license may be based is the "[v]iolation by the licensee 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." Section 561.29(1)(a), Fla. Stat.

    
    

50. Although a literal reading of the language employed by the Legislature in subsection (1)(a) of Section 561.29, Florida Statutes, suggests that a licensee may have its license suspended or revoked based upon a violation of state law committed by its agents, officers, servants, or employees on the licensed premises, regardless of the licensee's own personal fault or misconduct in connection with the unlawful activity, the courts of this state have consistently held to the contrary. Under the well established case law, a license may be suspended or revoked pursuant to subsection (1)(a) only if it is determined that the licensee is culpably responsible for the violation as a result of his own negligence, intentional wrongdoing, or lack of diligence. See Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992) and the cases cited therein.

    
    

51. Where the violations committed by the licensee's agents, officers, servants, or employees on the licensed premises are flagrant and repeated over a relatively short period of time, an inference may be drawn that the licensee either fostered, condoned, or negligently overlooked the unlawful activity and, based upon such an inference, its license may be suspended or revoked pursuant to subsection (1)(a) of Section 561.29, Florida Statutes, notwithstanding that the licensee itself may not have been present on the premises when the violations were committed. See Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992) and the cases cited therein. "A licensee may not remove itself from responsibility by not being present on the premises or by claiming ignorance of the repeated violations." G & B of Jacksonville, Inc. v. Department of Business Regulation, 371 So.2d 139, 140 (Fla. 1st DCA 1979); see also Pauline v. Lee, 147 So.2d 359, 362 (Fla. 2d DCA 1962)("[c]ertainly it is not the intent or purpose of the law that the licensee must be present during any and every violation of law by his employees in proceedings for revocation of an alcoholic beverage license" under subsection (1)(a) of Section 561.29, Florida Statutes).

    
    

52. The amended Administrative Action issued in the instant case alleges that violations of Sections 796.07(2)(a), Florida Statutes(Count 10), Section 796.07(3)(a), Florida Statutes(Counts 1-4 and 6), and Section 847.011, Florida

    Statutes (Counts 5 and 7-8) were committed at the Mermaid for which Respondent should be held accountable and penalized pursuant to subsection (1)(a) of Section 561.29, Florida Statutes.

    
    

53. At all times material to the instant case, Section 796.07(2)(a), Florida Statutes, made it unlawful "[t]o keep, set up, maintain, or operate any place, structure, building, or conveyance for the purpose of lewdness. "

    
    

54. At all times material to the instant case, Section 796.07(3)(a), Florida Statutes, made it unlawful "[t]o offer to commit, or to commit, or engage in, . . . lewdness "

    
    

55. "Lewdness," as that term is used in Section 796.07, Florida Statutes, is defined in subsection (1)(b) thereof as "any indecent or obscene act."

    
    

56. An act may constitute "lewdness," within the meaning of Section 796.07, Florida Statutes, if it is indecent, even though it may not be obscene. See State v. Waller, 621 So.2d 499, 501-02 (Fla. 2d DCA 1993). However, "something more than a negligent disregard of accepted standards of decency, or even an intentional but harmlessly discreet unorthodoxy" is required. Unless it is "an intentional act of sexual indulgence or public indecency [which] causes offense to one or more persons viewing it or otherwise intrudes upon the rights of others," it is not "lewdness," as that term is used in Section 796.07, Florida Statutes. See Schmitt v. State, 590 So.2d 404, 410 (Fla. 1991); State v. Waller, 621 So.2d 499, 501-02 (Fla. 2d DCA 1993).

    
    

57. "Lap dances," such as those described in Counts 1-4, 6 and 10 of the amended Administrative Action issued in this case, are "indecent act[s]"

    that fall within the definition of "lewdness" set forth in Section 796.07, Florida Statutes. See Hoskins v. Department of Business Regulation, 592 So.2d 1145, 1146 (Fla. 1st DCA 1992)("lap dancing" performed by dancers in lounge deemed to constitute "lewdness," within the meaning of Section 796.07, Florida Statutes).

    
    

58. Section 847.011(4), Florida Statutes, provides, in pertinent part, as it has at all times material to the instant case, as follows:

    
    

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

    
    

59. "Obscene," as that term is used in Section 847.011(4), Florida Statutes, is defined in Section 847.001(7), as follows:

    
    

    "Obscene" means the status of material which:

    
    

    1. The average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest;

    2. Depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and

    3. Taken as a whole, lacks serious literary, artistic, political, or scientific value.

    
    

60. "Sexual conduct" is defined in Section 847.001(11), Florida Statutes, as "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."

    
    

61. The performances given by Angela Ratliffe King and Lisa Berling at the Mermaid on the evening of May 12, 1993, which are described in Counts 5 and 7-8 of the amended Administrative Action issued in this case, were "obscene shows" prohibited by Section 847.011(4), Florida Statutes.

    
    

62. Having carefully reviewed the record in the instant case, the Hearing Officer concludes that it clearly and convincingly establishes that the agents of Respondent named in Counts 1-8 and 10 of the amended Administrative Action committed the violations of state law alleged therein and that, given the flagrant and persistent nature of these violations, they must have been either fostered, condoned, or negligently overlooked by Respondent.

    
    

63. Such being the case, the Department has grounds to suspend or revoke Respondent's alcoholic beverage license pursuant to Section 561.29(1)(a), Florida Statutes.

    
    

64. Because of the number of "lewd" and "obscene" acts involved and their similarity to those violations committed at the Mermaid less than a year before, for which Respondent was held responsible and penalized by the Department's predecessor, the Department should revoke, rather than simply suspend, Respondent's license.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department enter a final order finding Respondent liable for the violations alleged in the amended Administrative Action and penalizing Respondent therefor by revoking its alcoholic beverage license, license number 60-00429, Series 4-COP.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of January, 1994.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1994.

ENDNOTES

1/ There is no Count #9 in the Administrative Action, as amended.

2/ The dancers at the bar are not paid a wage or salary. The only money they receive for their labor is from customer tips and "contributions."

3/ "Kellie" was topless, but not totally nude, during the "lap dance." 4/ The community, in this case, is Palm Beach County.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4855

The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the parties in their post-hearing submittals:

The Department's Proposed Findings

1-3. Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

4. First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Accepted as true and incorporated in substance.

5-7. Accepted as true and incorporated in substance.

8. First sentence: To the extent that this proposed finding asserts that in the prior case "four [as opposed to three] female dancers committed lewdness," it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted as true and incorporated in substance; Second sentence: Accepted as true and incorporated in substance; Third sentence: To the extent that this proposed finding states that the Consent Agreement was entered into on July 9, 1993, as opposed to July 6, 1993, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted as true and incorporated in substance.

9-10. Accepted as true and incorporated in substance.

11. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

12-13. Accepted as true and incorporated in substance.

14. First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Accepted as true and incorporated in substance.

15-16. Accepted as true and incorporated in substance.

17. First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Accepted as true and incorporated in substance.

18-20. Accepted as true and incorporated in substance.

21. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

22-23. Accepted as true and incorporated in substance.

Respondent's Proposed Findings

1-2. Accepted as true and incorporated in substance.

1. Rejected because it is a conclusion of law rather than a finding of fact and, moreover, is a conclusion of law with which the Hearing Officer disagrees.

2. Accepted as true and incorporated in substance.

3. Rejected because it is a conclusion of law rather than a finding of fact and, moreover, is a conclusion of law with which the Hearing Officer disagrees.

4. Accepted as true and incorporated in substance.

5. Rejected because it is a conclusion of law rather than a finding of fact and, moreover, is a conclusion of law with which the Hearing Officer disagrees.

6. Accepted as true and incorporated in substance.

7. Rejected because it is a conclusion of law rather than a finding of fact and, moreover, is a conclusion of law with which the Hearing Officer disagrees.

8. Accepted as true and incorporated in substance.

9. Rejected because it is a conclusion of law rather than a finding of fact and, moreover, is a conclusion of law with which the Hearing Officer disagrees.

10. Accepted as true and incorporated in substance.

11. Rejected because it is a conclusion of law rather than a finding of fact and, moreover, is a conclusion of law with which the Hearing Officer disagrees.

12. Accepted as true and incorporated in substance.

13. Rejected because it is a conclusion of law rather than a finding of fact and, moreover, is a conclusion of law with which the Hearing Officer disagrees.

14. Accepted as true and incorporated in substance.

15. Rejected because it contrary to the greater weight of the evidence.

16. Rejected because it is a conclusion of law rather than a finding of fact and, moreover, is a conclusion of law with which the Hearing Officer disagrees.

17. Accepted as true and incorporated in substance.

18. Rejected because, even if true, it would have no bearing on the outcome of the instant case.

19. First sentence and second sentence, before comma: Accepted as true and incorporated in substance; Second sentence, after comma: Rejected because, even if true, it would have no bearing on the outcome of the instant case.

20. Rejected because it constitutes legal argument rather than a finding of fact.

COPIES FURNISHED:

John F. Gilroy, Esquire Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Ronald E. Jones, Esquire 1610 Southern Boulevard

West Palm Beach, Florida 33406

John J. Harris, Acting Director

Division of Alcoholic Beverages and Tobacco Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Jack McRay, Esquire General Counsel

Department of Professional and Business Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

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 of time 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: 93-004855

Orders for Case No: 93-004855