G & B of Jacksonville, Inc. v. State, Dept. of Business Regulation, Division of Beverage

• Decision Date: 17 August 1978
• Docket Number: No. DD-443,DD-443
• Parties: G & B OF JACKSONVILLE, INC., d/b/a Out Of Sight, Petitioner, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF BEVERAGE, Respondent.
• Court: Florida District Court of Appeals

Page 951

362 So.2d 951

G & B OF JACKSONVILLE, INC., d/b/a Out Of Sight, Petitioner, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF BEVERAGE, Respondent.

No. DD-443.

District Court of Appeal of Florida, First District.

Aug. 17, 1978.

Rehearing Denied Oct. 6, 1978.

Harry Katz, Jr. of Katz & Katz, Jacksonville, for petitioner.

Charles F. Tunnicliff, Dennis E. LaRosa and Charles T. Collett, Tallahassee, for respondent.

BOYER, Judge.

By petition for review pursuant to Chapter 120, Florida Statutes, the Administrative Procedure Act, and F.S. 561.29(7), G & B of Jacksonville, Inc. doing business as Out Of Sight, hereinafter referred to as petitioner, seeks review of an order of the Director of the State of Florida Department of Business Regulation, Division of Beverage, hereinafter referred to as respondent, by which order civil penalties were assessed against petitioner.

F.S. 561.29 provides, inter alia, that the Division of Alcoholic Beverages and Tobacco 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 that a licensee or his or its agents, officers, servants or employees, on the licensed premises, or elsewhere while in the scope of employment, has violated any of the laws of the State of Florida or of the United States. Provision is also made for imposition of civil penalties against a licensee for any violation of the Beverage Law, or any rule issued pursuant thereto, "not to exceed $1,000.00 for violations arising out of a single transaction."

F.S. 561.29(3) further provides:

" * * * If a hearing is required, the licensee shall be entitled to produce witnesses and be represented by counsel. Hearings may be conducted by a person designated by the division. The hearing officer shall make findings of fact and may make recommendations for disposition of the case based on such findings of fact. Upon receipt of the finding of fact made by the person designated as hearing officer, the division may enter its decision thereon."

F.S. 796.07, entitled "Prohibiting prostitution, etc.; evidence; penalties; definitions." provides, in so far as is here material, as follows:

"(1) As used in this section, unless the context clearly requires otherwise:

"(a) The term 'prostitution' shall be construed to include the giving or receiving of the body for sexual intercourse for hire, and shall also be construed to include the giving or receiving of body for licentious sexual intercourse without hire.

"(b) The term 'lewdness' shall be construed to include any indecent or obscene act.

"(c) The term 'assignation' shall be construed to include the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.

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

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

"(b) To solicit, induce, entice, or procure another to commit prostitution, lewdness, or assignation with himself or herself.

"(c) To reside in, enter, or remain in, any place, structure, or building, or to enter or remain in any conveyance, for the purpose of prostitution, lewdness, or assignation.

* * *" re

F.S. 800.03 proscribes exposure of sexual organs. It provides, in material part:

"It shall be unlawful for any person to expose or exhibit his sexual organs in any public place or on the private premises of another, or so near thereto as to be seen from such private premises, in a vulgar or indecent manner, or so to expose or exhibit his person in such place, or to go or be naked in such place. * * * "

The Division of Beverage charged petitioner with three offenses:

"(1) That, on or about April 16, 1975, an agent, servant or employee of the Respondent, (G & B of Jacksonville, Inc.) Sarah Jane Smith, did unlawfully commit or engage in lewdness in violation of Section 796.07(3)(a), Florida Statutes, by dancing in a topless state for Detective H. R. Hall and, while dancing, pulling down her bikini panties and exposing her vagina and pubic area and by continually rubbing her vagina, buttocks and legs on Hall's legs while dancing.

"(2) That, on or about April 16, 1975, an agent, servant or employee of the Respondent, (G & B of Jacksonville, Inc.) Sarah Jane Smith, did unlawfully expose or exhibit her sexual organs in violation of Section 800.03, Florida Statutes.

"(3) That, on or about April 16, 1975, an agent, servant or employee of the Respondent, (G & B of Jacksonville, Inc.) Doris Pesnell Edwards, did unlawfully commit or engage in lewdness, in violation of Section 796.07(3)(a), Florida Stat utes, by continually rubbing her vagina and buttocks on the legs of H. R. Hall while dancing for Hall in a topless state."

A hearing was conducted before a hearing officer at which hearing Detective Hall testified that Ms. Smith and Ms. Edwards did in fact commit the charged offenses. Ms. Smith denied exposing her vagina and pubic hair, testifying that she wore a G-string underneath a white bathing suit thereby rendering such exposure impossible. Ms. Edwards also denied the alleged acts. The hearing officer rendered a recommended order containing findings of fact and conclusions of law in which he found that the offenses were committed but that the violations attributed to Ms. Smith arose out of a single transaction. He accordingly recommended that a civil penalty be assessed against petitioner in the amount of $1,000.00 for the violations committed by Ms. Smith and that an additional civil penalty of $1,000.00 be assessed as a result of the violation committed by Ms. Edwards.

The recommended order was entered on May 3, 1976. On September 27, 1976 the Director entered an order adopting the findings of fact and conclusions of law contained in the recommended order of the hearing officer but, without discussing the "single transaction" provision of F.S. 561.29(4) or of the recommended order, assessed a civil penalty of $1,000.00 for each of the three offenses.

We will address the six points raised by the petitioner in the order presented.

In doing so, we pause to observe that our task would have been made much easier had respondent's attorney, in the preparation of respondent's brief, followed the rules applicable to appellate practice by addressing the points raised by petitioner in the same order as presented in petitioner's brief. The reasons for such rules and the affect on the court of ignoring them is fully set out in the court's opinion in American Baseball Cap v. Duzinski, 308 So.2d 639 (Fla. 1st DCA 1975) and therefore will not be repeated here.

Petitioner first urges that F.S. 796.07 is unconstitutional as embracing multiple subjects not expressed in the title, contrary to Article III, Section 6 of the Constitution of the State of Florida which requires that every law shall embrace but one subject and matter properly connected therewith which subject shall be briefly expressed in the title. Respondent properly points out, however, that the subject statute was originally enacted as Chapter 21664, Laws of Florida, 1943, wherein its full title was set forth as follows:

"AN ACT defining and prohibiting lewdness, assignation and prostitution, making it unlawful to engage in, solicit, procure for, aid or abet, lewdness, assignation or prostitution, providing for the admission in evidence of certain testimony in trials hereunder, and providing penalties for the violation of the provisions of this Act."

We find the constitutional attack to be without merit. (See Bell v. State, 289 So.2d 388 (Fla.1973) and Chesebrough v. State, 255 So.2d 675 (Fla.1971)).

Petitioner next urges that respondent impermissibly increased the recommended penalty without a review of the complete record in violation of F.S. 120.57(1) (b)(9). Although we find petitioner's point to be well taken we find no necessity for reversal nor remand but, instead, in accordance with F.S. 120.68(9)(a) we modify the penalty imposed by respondent and reduce same to that recommended by the hearing officer, viz: A total of $2,000.00. ¹

By its third point, petitioner, citing F.S. 120.57(1)(b)(7); F.S. 120.57(1) (b)(8) and F.S. 120.57(1)(b)(9) urges that upon petitioner having filed exceptions to the findings of fact made by the hearing officer, the Director could not meaningfully consider the exceptions and determine whether the findings of fact were based upon competent substantial evidence and thereby enter an order adopting the findings of fact without first reviewing the entire record. To hold that an agency, petitioner argues, may enter a final order adopting the findings of fact of a hearing officer, when those findings have been challenged, without first reviewing the complete record reduces the final order to a useless act. That argument is not without logic. However, to so hold would ignore the plain language of the cited statute. It is clear from a reading of F.S. 120.57(1)(b)(9) that the legislature intended that a complete review of the entire record be required of the agency only in those instances wherein the agency in its final order rejects or modifies the findings of fact in the recommended order and when, by agency order, the recommended penalty is increased.

Petitioner next challenges the subject order on the basis of timeliness, citing F.S. 120.59 which requires that: "The final order in a proceeding which affects substantial interests shall be in writing or stated in the record * * * and it shall be rendered within 90 days * * * after a recommended order is submitted to the agency and mailed to all parties, if the hearing is conducted by a hearing officer * * * ". The statute further provides that the 90-day period may...