Howell v. Metro. Sexually Oriented Bus. Licensing Bd.
| Citation | 466 S.W.3d 88 |
| Decision Date | 05 November 2014 |
| Docket Number | No. M2013–02369–COA–R3–CV.,M2013–02369–COA–R3–CV. |
| Parties | Gabrielle HOWELL, et al. v. METROPOLITAN SEXUALLY ORIENTED BUSINESS LICENSING BOARD. |
| Court | Court of Appeals of Tennessee |
John E. Herbison, Clarksville, Tennessee, for the appellant, Gabrielle Howell, doing business as Gabrielle's VIP Club.
J. Brooks Fox and Emily Herring Lamb, Nashville, Tennessee, for the appellee, Metropolitan Sexually Oriented Business Licensing Board.
Owner of a sexually oriented nightclub filed a writ of certiorari challenging the Respondent Board's decision to sanction the nightclub for the inappropriate behavior of an entertainer. The trial court affirmed the decision of the Board. The nightclub raises several errors on appeal. Discerning no error, we affirm.
This case involves a petition for a writ of certiorari filed by Petitioner/Appellant Gabrielle Howell, d/b/a Gabrielle's VIP Club (together with Ms. Howell, “the Club”) to challenge the decision of the Respondent/Appellee Metropolitan Sexually Oriented Business Licencing Board (“Metro Licensing Board”) to suspend its operation for thirty-one days based upon evidence that the Club violated an ordinance applicable to sexually oriented businesses.
Sexually oriented businesses are governed by various rules and regulations regarding conduct and must be licensed. On October 28, 2011, the Club was issued a sexually oriented business license by the Metro Licensing Board. The license states that it “evidences” that the Club is permitted to “conduct business as described under Chapter 6.54 of the Metropolitan Code of Laws” (“Metro Code”). The Club's license was later renewed. On March 14, 2012, the entertainer at issue in this case obtained an entertainer's permit to work in a sexually oriented business. It was undisputed that the entertainer was an independent contractor with the Club.
On March 8, 2012, two compliance inspectors, for the Metro Licensing Board, Christine Gibson and James Hodge, visited the Club. According to Ms. Gibson's later testimony, she observed an entertainer make physical contact with a patron in a “VIP room.” Specifically, Ms. Gibson testified that the entertainer was “grinding her breasts on the front groin area of the customer.”1 The physical contact at issue did not take place on a stage. According to Ms. Gibson, at the time she entered into the VIP Room, the alleged improper performance was already in progress. The compliance inspector further testified that the entertainer's breasts were completely exposed at the end of the performance.
Later testimony revealed that the VIP Room is a room where customers can pay a fee to “spend time with an entertainer ... to get her away from the rest of the club or the stage.” Indeed, Ms. Gibson testified, without objection, that a floor manager informed her that the customer paid $150.00 to be entertained in the VIP Room. Both compliance inspectors also testified that a manager was close by and could have seen into the VIP Room and stop the incident, but did not take any action to prevent the alleged violation. Ms. Gibson testified that out of the ten inspections they had performed over the years, the Club had been issued only one prior citation based on the conduct of another entertainer.
On March 14, 2012, the Metro Licensing Board voted to issue a citation to Ms. Howell. The Metro Licensing Board held an evidentiary hearing on June 27, 2012. The compliance inspector testified that Ms. Howell had previously been cited for having an illegal VIP dance in violation of the Metro Code, for which the Club was issued a five-day suspension. The incident report regarding the prior violation was admitted into evidence and stated that:
[The Club] allowed or permitted an entertainer to have physical contact with a customer while engaged in a performance of sexually oriented entertainment. The Board further found that the aformentioned sexually oriented entertainment did not occur upon a stage at least eighteen inches in height or at least three feet from the customer. The Board found that these acts constituted a violation of Metropolitan Code of Laws Section 6.54.140(C).
The final decision of the Metro Licensing Board with regard to the prior violation was issued on March 24, 2011. Ms. Howell agreed to waive any right of appeal of that ruling and the Club served the five-day suspension handed down by the Metro Licensing Board.
Both compliance inspectors testified as to what they witnessed on March 8, 2012. On cross examination, Ms. Gibson admitted that the alleged violation had caused no actual harm to Metropolitan Nashville beyond the expense of sending letters and the inspectors' overtime working on the case. Ms. Howell and an employee of the Club detailed the efforts they had taken to prevent any violations of the Metro Code, including making entertainers sign pledges not to violate the Code, training, and supervision of the VIP Room. While Ms. Howell testified that she would terminate the employment of any entertainer who had violated the code, she later admitted that she had not terminated the employment of the entertainer involved in the prior violation. The floor manager charged with supervising the VIP Room on the day in question testified that he is stationed inside the VIP Room and has clear visibility of the activities inside the room. According to the floor manager, he only walked away from the VIP Room after Ms. Gibson went to the VIP Room to inspect. The floor manager testified that he walked away from the VIP Room to inquire as to who the inspectors were, as they showed no badges or identification. The floor manager indicated that while he was observing the activity in the VIP Room approximately twenty-five seconds prior to the inspectors' visit, no noncompliant activities were occurring, and that he did not see the alleged violation. Further, he testified that he was familiar with the entertainer charged with the violation, and that the Club never had problems with her compliance previously. The entertainer did not appear at the hearing, and therefore, did not testify.2
The Metro Licensing Board rendered a written judgment on June 28, 2012, finding that an entertainer at the Club improperly engaged in physical contact with a patron, that the subject performance did not take place on a stage at least eighteen inches high, as required by law, and that Ms. Howell, as the business licensee, was vicariously liable for the entertainer's code violations. The Metro Licensing Board entered the following findings of fact and conclusions of law, which were noted on the Board's agenda:
On August 24, 2012, Ms. Howell filed a petition for a writ of certiorari, arguing that the Metro Licensing Board's decision with regard to the Club was not supported by substantial and material evidence. On or around September 5, 2012, the Clerk and Master entered an order directing the Metro Licensing Board to transmit the administrative record to the Chancery Court. The administrative record was filed on November 6, 2012. On January 16, 2013, the...
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