Pauline v. Lee

• Decision Date: 28 September 1962
• Docket Number: No. 3144,3144
• Citation: 147 So.2d 359
• Parties: Rick PAULINE, d/b/a Rick Pauline's Celebrity Club, Appellant, v. Thomas E. LEE, Jr., as Director of the State Beverage Department of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 359

147 So.2d 359

Rick PAULINE, d/b/a Rick Pauline's Celebrity Club, Appellant, v. Thomas E. LEE, Jr., as Director of the State Beverage Department of Florida, Appellee.

No. 3144.

District Court of Appeal of Florida, Second District.

Sept. 28, 1962.

Rehearing Denied Oct. 24, 1962.

Manuel M. Garcia, Tampa, for appellant.

Young J. Simmons, Ocala, for appellee.

ALLEN, Acting Chief Judge.

Appellant, petitioner below, is the holder of a license to sell alcoholic beverages at his place of business known as the Celebrity Club and located in Tampa. On April 13, 1961, pursuant to Section 561.29, Florida Statutes (1959), F.S.A., the Director of the State Beverage Department, appellee here and respondent below, caused to be issued and served on appellant, hereinafter referred to as licensee, a notice to show cause why his license to sell alcoholic beverages should not be revoked or suspended. Said notice charged the licensee and/or his employees with violations of the law on the licensed premises under Section 796.07, Florida Statutes (1959) ,F.S.A., relating to solicitations to commit prostitution.

Upon proper notice, a hearing was duly held before the beverage director at which considerable conflicting testimony was adduced tending to show, if the state's witnesses are to be believed, that five of the licensee's female employees offered to commit prostitution with said witnesses at various designated times over a three day period during March of 1961.

At the conclusion of the hearing the director determined that the charges were true and issued an order revoking the licensee's alcoholic beverage license. From said order of revocation the licensee filed a petition for writ of certiorari in the Circuit Court of Hillsborough County. It is said lower court's order denying the petition of which review is sought by appeal in this court. Embraced within its order was the court's comprehensive and accurate summary of the testimony taken before the director coupled with the quoted findings of fact made by the director. Said summary and findings followed by the lower court's own observations and conclusions of law are set forth as follows:

'At a hearing held by the beverage director pursuant to Section 561.29 F.S.A., two beverage department agents and two City of Tampa police officers testified that various entertainers at the Celebrity Club, who were employed by petitioner, sat with each one of the beverage agents and police officers on separate occasions during the nights of March 21, 22, 23 and 24, 1961, induced them to buy drinks, and offered to engage in sexual intercourse with them for a consideration. None of the men followed through on the solicitations and no sexual intercourse was consummated on any of these occasions. The respondent's witnesses testified that the bartender at the Celebrity Club was in a position to hear some of the conversations between them and the girls. The entertainers, who were accused by the respondent's witnesses, testified on behalf of the petitioner and denied any improper action on their part. The bartender also denied any improper action on his part or on the part of the girls. The petitioner testified that the girls employed at the Celebrity Club were instructed not to solicit and not to date customers and he further testified that he was out of town and not at the Celebrity Club during the nights in question. He further testified that in the past few years he has had to dismiss a few girls for soliciting men to have sexual relations with them. Pursuant to this hearing, which was held on May 25, 1961, the beverage director on June 7, 1961, made the following findings of fact:

"* * * that from about March 21, 1961, to about March 24, 1961, both dates inclusive, at his licensed place of business, he and/or his employee were keeping, setting up, maintaining or operating a place for the purpose of lewdness, assignation or prostitution, in violation of Sections 796.07 and 561.29, Florida Statutes; and from about March 21, 1961 to about March 24, 1961, both dates inclusive, at his licensed place of business, three of his white female employees whose names are not known but who are known as and called Rita, Sojna or Sonia, and Jeannie were offering to commit or committing, or engaging in prostitution, lewdness or assignation, in violation of Sections 796.07 and 561.29, Florida Statutes; and from about March 21, 1961, to about March 24, 1961, both dates inclusive, at his licensed place of business, three of his white female employees whose names are not known but who are known as and called Rita, Sojna or Sonia, and Jeannie were soliciting, inducing, enticing or procuring others to commit prostitution, lewdness or assignation with themselves, in violation of Sections 796.07 and 561.29, Florida Statutes; and from about March 21, 1961, to about March 24, 1961, both dates inclusive, at his licensed place of business, he and/or his employee were aiding, abetting or participating in the offering by several white females whose names are not known but who were known as and called Rita, Sojna or Sonia, and Jeannie, to commit or engage in prostitution, lewdness or assignation, in violation of Sections 796.07 and 561.29, Florida Statutes; and from about March 21, 1961, to about March 24, 1961, both dates inclusive, at his licensed place of business, he or his employee were aiding, abetting or participating in the soliciting, inducing, enticing or procuring others to commit prostitution, lewdness or assignation with several white females whose names are not known but who were known as and called Rita and Sojna or Sonia, in violation of Sections 796.07 and 561.29, Florida Statutes.'

The director then revoked the alcoholic beverage license of the petitioner at the Celebrity Club and this petition for certiorari followed.

'The petitioner contends as follows: First, that no sexual intercourse was consummated between the respondent's witnesses and the petitioner's employees; second, that the testimony of the officers relating to alleged conversations the officers had with, and statements made to the officers by employees of petitioner on the licensed premises, when said conversations were not had or made in the presence or hearing of petitioner, are hearsay evidence and therefore not admissible in proceedings under Section 561.29 F.S.A.; and finally, that there was no competent substantial evidence to support the findings and order revoking the alcoholic beverage license order revoking the alcoholic beverage license of the petitioner.

As to petitioner's first contention, the Court cannot agree. Section 796.07 F.S.A. provides as follows:

"(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.'

Under this statute, the mere act of offering to engage in sexual intercourse for a consideration is a violation of law. No overt act is required to complete the offense.

Petitioner's second contention is without merit. Section 561.29 F.S.A. provides as follows:

"(1) The director is given full power and authority to revoke or suspend the license of any person, firm or corporation holding a license under the beverage law, where it is determined or found by the director upon sufficient cause appearing of:

"(a) Violation by the licensee, his or its agents, officers, servants or employees, on the licensed premises, of any of the laws of this state, or any state, or of the United States, or violation of any municipal or county regulation in regard to the hours of sale, or engaging in or permitting disorderly conduct on the licensed premises.'

Certainly 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 said section.

'On his third contention, that is, that there was no competent substantial evidence to support the director's findings and order of revocation, the director found against him and with this finding the Court agrees. In Florida Industrial Commission v. Nordin, Fla.App.1958; 101 So.2d 890, and Cohen v. State, Fla.1957; 99 So.2d 563, the Court held that where there is competent substantial evidence to support the findings of an administrative body it should not be disturbed on appeal. And in Trader Jon, Inc. v. State Beverage Department, et al., Fla.App.1960, 119 So.2d 735, the First District Court of Appeal defines 'competent substantial evidence' as 'such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably...