98-004703 Division Of Alcoholic Beverages And Tobacco vs. Florida Ventures, Inc., D/B/A Club Diamonds Status: Closed Recommended Order on Tuesday, March 16, 1999.

Summary: Licensee was held responsible for lewd dances performed by dancers on licensed premises during three visits made by undercover officers to premises in ten-day period. $1,000.00 fine recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 98-4703

)

FLORIDA VENTURES, INC., d/b/a )

CLUB DIAMONDS, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was

conducted in this case on February 25, 1999, by video

teleconference at sites in West Palm Beach and Tallahassee,

Florida, before Stuart M. Lerner, a duly designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Miguel Oxamendi, Esquire

Department of Business and

Professional Regulation

Office of the General Counsel

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent: James S. Telepman, Esquire

COHEN, NORRIS, SCHERER,

WEINBERGER and WOLMER, P.A.

712 U. S. Highway One, Suite 400

North Palm Beach, Florida 33408-7146

STATEMENT OF THE ISSUES

1. Whether the violations alleged in the Administrative

Action, as amended, were committed?

2. If so, should Respondent be held responsible for these

violations?

3. If so, what penalty should be imposed against

Respondent?

PRELIMINARY STATEMENT

On June 16, 1998, the Department of Business and

Professional Regulation, Division of Alcoholic Beverages and

Tobacco (Department) issued a three-count Administrative Action

against Respondent containing the following allegations:

COUNT #1

On or about May 27, 1998, you Florida

Ventures, Inc., d/b/a Club Diamonds, your

agent(s), employee(s), or entertainers, to

wit: dancer named Faith, did unlawfully

commit or engage in lewdness by: rubbing her

bare breasts against Agent Murray's face and

did sit on Agent Murray's lap and moved her

clothed vagina against Murray's clothed penis

in such a manner as to simulate sexual

intercourse, on your licensed premises,

contrary to section 796.07(1)(a), within

561.29(1)(a), Florida Statutes.

COUNT #2

On or about June 2, 1998, you Florida

Ventures, Inc., d/b/a Club Diamonds, your

agent(s), employee(s), or entertainers, to

wit: dancer named Traci Cohen, did unlawfully

commit or engage in lewdness by: rubbing her

bare breasts against Agent Murray's chest and

did sit on Agent Murray's lap and moved her

clothed vagina against Murray's clothed penis

in such a manner as to simulate sexual

intercourse, on your licensed premises,

contrary to section 796.07(1)(a), within

561.29(1)(a), Florida Statutes.

COUNT #3

On or about June 6, 1998, you Florida

Ventures, Inc., d/b/a Club Diamonds, your

agent(s), employee(s), or entertainers, to

wit: dancer named Bridget Smith, did

unlawfully commit or engage in lewdness by:

rubbing her bare breasts against Agent

Murray's face and did sit on Agent Murray's

lap and moved her clothed vagina against

Murray's clothed penis in such a manner as to

simulate sexual intercourse, on your licensed

premises, contrary to section 796.07(1)(a),

within 561.29(1)(a), Florida Statutes.

Respondent denied the allegations of wrongdoing advanced in the

Administrative Action and requested a formal hearing. On

October 23, 1998, the Department referred the matter to the

Division of Administrative Hearings (Division) for the assignment

of an administrative law judge to conduct the hearing Respondent

had requested.

On February 22, 1999, the Department filed a motion

requesting leave to amend the Administrative Action issued in the

instant case to reflect that the statutory provision allegedly

violated by the conduct described in Counts 1 through 3 was

Section 796.07(2), Florida Statutes, not Section 796.07(1)(a),

Florida Statutes. A hearing on the motion was held by telephone

conference call on February 23, 1999. On that same day

(February 23, 1999), the undersigned issued an order granting the

Department's motion.

As noted above, the final hearing in this case was held on

February 25, 1999. Three witnesses testified at the hearing:

Sergeant Carol Owsiany, a Sergeant Supervisor with the

Department; Special Agent John Murray, a Special Agent with the

Department; and Jorge Courts, the general manager of Club

Diamonds since September of 1998. In addition to the testimony

of these three witnesses, a total of four exhibits (Petitioner's

Exhibits 1 and 2 and Respondent's Exhibits 1 and 2) were offered

and received into evidence.

Following the conclusion of the evidentiary portion of the

hearing, the undersigned advised the parties of their right to

file proposed recommended orders and established a deadline

(March 8, 1999) for the filing of such post-hearing submittals.

The parties both filed their proposed recommended orders on

March 8, 1999. These proposed recommended orders have been

carefully considered by the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record

as a whole, the following findings of fact are made:

1. Respondent is now, and has been at all times material to

the instant case, the holder of alcoholic beverage license number

60-00602, Series 4-COP issued by the Department.

2. The licensed premises is Club Diamonds (Club), an adult

entertainment establishment located in West Palm Beach (at 1000

North Congress Avenue) that features scantily clad female

dancers. 1 Patrons of the Club are served in two main areas: at

the bar and at tables that are located between the bar and the

stage area where the dancers perform to recorded music played by

a DJ stationed in an elevated booth. On the north and west ends

of the Club are partitioned areas with couches (Partitioned

Areas).

3. After receiving an anonymous complaint concerning the

Club, the Department began an undercover operation at the

establishment in which Special Agent John Murray and others

participated.

4. In his undercover capacity, Special Agent Murray visited

the Club on three occasions during its normal business hours when

there were other patrons, as well as Club employees (including

dancers, at least one bartender/barmaid, a waitress, and a DJ)

present. These visits were made on May 27, 1998, June 2, 1998,

and June 6, 1998.

5. On each visit, Special Agent Murray was approached by a

dancer at the Club ("Faith" on May 27, "Riley" on June 2, and

"Memphis" on June 6), who, after ascertaining that he was

interested in a "private dance" for $20.00, escorted him to a

couch in one of the Partitioned Areas on the north and west ends

of the Club, sat him down on the couch, and spread his legs

apart. The dancer then positioned herself between Special Agent

Murray's legs and took off her top. Wearing only a thong-style

bikini (G-string) bottom (which left her buttocks exposed), the

dancer proceeded to perform for a fully clothed Special Agent

Murray what is commonly referred to as a "lap dance." During the

course of the "dance," the dancer, to the rhythm of the music,

provocatively rubbed her bare breasts against Special Agent

Murray's face and (while on his lap) rhythmically grinded her

(covered) crotch area against his in a manner designed to

simulate sexual intercourse and to sexually arouse Special Agent

Murray. The "lap dance" lasted approximately the length of a

song being played by the DJ over the Club's sound system.

Following the conclusion of the "lap dance," Special Agent Murray

paid the dancer $20.00.

6. While at the Club, Special Agent Murray witnessed other

patrons receive "lap dances" from the Club's dancers.

7. Although the "lap dances" that Special Agent Murray and

other patrons of the Club received were given in an area of the

Club with "subdued" lighting (in contrast to the stage area,

which was brightly lit), there was sufficient lighting for others

in the Club at the time, including other employees, to observe

these "lap dances," which were performed in an open and notorious

manner in plain view. At no time did any employee of the Club

make an effort to stop these "lap dances." Indeed, the DJ made

comments to the patrons over the sound system encouraging them to

purchase "private dances" from the Club's dancers.

8. Although Respondent's officers and shareholders may not

have been present on the premises during the May 27, 1998,

June 2, 1998, and June 6, 1998, undercover operations, given the

persistent and repeated instances of "lap dancing" engaged in by

the dancers working at the Club, the inference is made that

Respondent either fostered, condoned, or negligently overlooked

these flagrant acts of indecency, which were patently offensive,

lacked any serious artistic value and that the average person,

applying contemporary community standards, would find, taken as a

whole, appealed to prurient interests.

9. On June 9, 1998, Special Agent Murray returned to the

Club. On this occasion, however, he identified himself as a

Special Agent for the Division. After doing so, he provided the

Club's management with a written notice of the Department's

intention to file administrative charges against Respondent based

upon the conduct he had observed during his previous three visits

to the Club. At no time prior to this June 9, 1998, visit had

Special Agent Murray informed the Club's management that the

Department had any concerns regarding activities taking place at

the Club.

10. Administrative charges were filed against Respondent on

June 16, 1998.

11. In September of 1998, Respondent hired a new general

manager, Jorge Courts, to run the Club. Mr. Courts has taken

measures reasonably calculated to prevent the reoccurrence of the

inappropriate conduct that Special Agent Murray observed on his

May 27, 1998, June 2, 1998, and June 6, 1998, visits to the Club.

CONCLUSIONS OF LAW

12. The Department is statutorily empowered to suspend or

revoke an alcoholic beverage license, such as the one held by

Respondent, and to "impose a civil penalty against a

licensee . . . not to exceed $1,000" per violation based upon any

of the grounds enumerated in Section 561.29(1), Florida Statutes,

provided that the proof establishing the existence of such

grounds is clear and convincing. See Department of Banking and

Finance, Division of Securities and Investor Protection, v.

Osborne Stern and Company , 670 So. 2d 932, 935 (Fla. 1996); 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). To be "clear and convincing," 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).

13. Among the grounds upon which disciplinary action

against an alcoholic beverage licensee 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), Florida Statutes.

14. 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 be disciplined 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 licensee may be disciplined 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; Pinacoteca Corporation v.

Department of Business Regulation, Division of Alcoholic

Beverages and Tobacco , 580 So. 2d 881, 882 (Fla. 4th DCA

1991)("An alcoholic beverage licensee is not an absolute insurer

of the propriety of all conduct and human activities upon its

premises, but is held to a high degree of accountability for a

violation of law occurring during the operation of its

establishment.").

15. 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, a penalty may be imposed upon the

licensee 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)("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 subsection (1)(a) of Section

561.29, Florida Statutes.). The Administrative Action issued in

the instant case, as amended, alleges that violations of Sections

796.07(2), Florida Statutes, were committed on three separate

occasions at the Club and that Respondent should be held

accountable for these violations and penalized pursuant to

subsection (1)(a) of Section 561.29, Florida Statutes.

16. At all times material to the instant case, Section

796.07(2), Florida Statutes, has provided, in pertinent part, as

follows:

(2) It is unlawful:

(a) To own, establish, maintain, or operate

any place, structure, building, or conveyance

for the purpose of lewdness . . . .

(b) To offer, or to offer or agree to

secure, another for the purpose of . . . any

. . . lewd or indecent act.

(c) To receive, or to offer or agree to

receive, any person into any place,

structure, building, or conveyance for the

purpose of . . . lewdness . . . or to permit

any person to remain there for such purpose.

(d) To direct, take, or transport, or to

offer or agree to direct, take, or transport,

any person to any place, structure, or

building, or to any other person, with

knowledge or reasonable cause to believe that

the purpose of such directing, taking, or

transporting is . . . lewdness . . . .

(e) To offer to commit, or to commit, or to

engage in . . . lewdness . . . .

(f) To solicit, induce, entice, or procure

another to commit . . . lewdness . . . .

(g) To reside in, enter, or remain in, any

place, structure, or building, or to enter or

remain in any conveyance, for the purpose of

. . . lewdness . . . .

(h) To aid, abet, or participate in any of

the acts or things enumerated in this

subsection. . . .

17. "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."

18. 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).

19. "Lap dances," such as those described in the

Administrative Action issued in this case, as amended, are

"indecent . . . act[s]" that fall within the definition of

"lewdness" set forth in Section 796.07, Florida Statutes. 2 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).

20. The record evidence clearly and convincingly

establishes that on May 27, 1998, June 2, 1998, and June 6, 1998,

dancers working at the Club performed "lap dances" for Special

Agent Murray and thereby engaged in "lewdness," in violation of

Section 796.07(2), Florida Statutes, as alleged in the

Administrative Action, as amended. Furthermore, there is clear

and convincing evidence, in the form of Special Agent Murray's

testimony (which the undersigned has credited) concerning the

flagrant and persistent 3 nature of these violations, establishing

that they must have been either fostered, condoned, or

negligently overlooked by Respondent and that therefore

Respondent should be held responsible for the commission of these

violations.

21. In determining the particular penalty the Department

should select, it is necessary to consult Rule 61A-2.022, Florida

Administrative Code, which contains the Department's "penalty

guidelines." Cf . Williams v. Department of Transportation , 531

So. 2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply

with its disciplinary guidelines in taking disciplinary action

against its employees).

22. Rule 61A-2.022, Florida Administrative Code,

establishes the "penalties that will be routinely imposed by the

[Department] for violations." It provides that the "routine"

penalty for "a pattern of three violations [of Chapter 796,

Florida Statutes, dealing with lewd and lascivious conduct] on

different dates within a 12-week period by employees, independent

contractors, agents, or patrons on the licensed premises or in

the scope of employment in which the licensee did not

participate; or violations which were occurring in an open and

notorious manner on the licensed premises" is a fine in the

amount of $1,000.00.

23. There appears to be no reason to deviate from this

"routine" penalty in the instant case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department enter a final order finding

Respondent liable for the violations alleged in the

Administrative Action, as amended, and penalizing Respondent

therefor by imposing an administrative fine in the amount of

$1,000.00.

DONE AND ORDERED this 16th day of March, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of March, 1999.

ENDNOTES

1/ The Club is one of approximately ten to twelve adult

entertainment establishments in Palm Beach County.

2/ In its proposed recommended order, Respondent argues that,

inasmuch as the Department failed "to put on any evidence

whatsoever of a community standard," there is insufficient record

evidence upon which to base a finding that the "lap dancing" that

occurred at the Club constituted "lewdness," within the meaning

of Section 796.07, Florida Statutes. In support of its argument,

Respondent cites Golden Dolphin No. 2, Inc., v. Division of

Alcoholic Beverages and Tobacco , 403 So. 2d 1372 (Fla. 5th DCA

1981), a case in which the appellate court determined that,

"since there was no evidence submitted to the hearing officer as

to the contemporary community standards of the area [in which the

licensed establishment was located], there was insufficient

evidence to support a finding that the dance [performed on the

licensed premises] was obscene," within the meaning of Chapter

847, Florida Statutes. Respondent's argument is not persuasive.

As noted above, "lewdness," within the meaning of Chapter 796,

Florida Statutes, is "define[d] in terms of either indecency or

obscenity" and an act may be "lewd because it is indecent, even

though [it may not be] obscene." State v. Waller , 621 So. 2d

499, 501 (Fla. 2d DCA 1993). Moreover, the holding in Golden

Dolphin regarding the need for evidence as to contemporary

community standards in obscenity cases tried (without a jury) by

a judge or hearing officer is no longer good law inasmuch as it

was overruled by the Florida Supreme Court in City of Miami v.

Florida Literary Distributing Corporation , 486 So. 2d 569 (Fla.

1986). In Florida Literary Distributing Corporation , the Florida

Supreme Court, disagreeing with the district court below, which

had relied on Golden Dolphin , answered in the negative the

question of "whether [a] trial judge, acting as a finder of fact

in a proceeding where a defendant has no right to a jury trial,

must be apprised of contemporary community standards by evidence

presented by the governmental entity seeking to establish

obscenity." The Court noted that its holding

was best summed up by Judge Sharp's dissent

in Golden Dolphin :

"The general rule that a trial judge, sitting

as a trier of fact, and without hearing any

testimony regarding contemporary community

standards, may apply what he has determined

to be the common conscience of the community

has been the law in our sister courts for

some time.

Absent a showing by the defense at trial that

the judge trying the case is unaware of the

community standards, I see no reason why the

trial judge or hearing officer should not be

able to make the obscenity determination by

examining the challenged activity and

applying his own knowledge of the community

standardsial judges, like juries, are

deemed competent to know community standards

and apply them in other contexts. No

different rule should be evolved for

obscenity cases without express guidance from

our two Supreme Courts."

Id . at 572

3/ It appears from a review of the findings of fact contained in

the Recommended Order issued in the underlying administrative

proceeding in the above-cited case of Hoskins v. Department of

Business Regulation , 592 So. 2d 1145 (Fla. 1st DCA 1992) (which

Recommended Order is reported at 1990 WL 749961 (Fla. Div. Admin.

Hrgs.)) that the licensees in that case were held responsible for

the lewd conduct of their dancers based upon testimony concerning

what occurred at the licensed premises on only two dates (which

were more than four months apart). In the instant case, Special

Agent Murray testified regarding visits that he made to the Club

on three different dates over a ten-day period, during which he

observed "lap dancing." If the evidence in Hoskins was

sufficient to establish the licensees' liability for the lewd

conduct of their dancers (which also occurred in an area of the

licensed premises with "subdued lighting"), then, a fortiori,

Special Agent's Murray testimony is sufficient to establish

Respondent's liability for the lewd conduct of its dancers on the

dates Special Agent Murray visited the Club. See also Rule 61A-

2.022, Florida Administrative Code, which suggests that a

licensee may be held liable and be penalized for "a pattern of

three violations [of Chapter 796, Florida Statutes, dealing with

lewd and lascivious conduct] on different dates within a 12-week

period by employees, independent contractors, agents, or patrons

on the licensed premises or in the scope of employment in which

the licensee did not participate."

COPIES FURNISHED:

Miguel Oxamendi, Esquire

Department of Business and

Professional Regulation

Office of the General Counsel

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-1007

James S. Telepman, Esquire

COHEN, NORRIS, SCHERER, WEINBERGER

and WOLMER, P.A.

712 U. S. Highway One, Suite 400

North Palm Beach, Florida 33408-7146

Richard Boyd, Director

Division of Alcoholic Beverages and Tobacco

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

Lynda L. Goodgame, 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 within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.

1 The Club is one of approximately ten to twelve adult

entertainment establishments in Palm Beach County.

2 In its proposed recommended order, Respondent argues that,

inasmuch as the Department failed "to put on any evidence

whatsoever of a community standard," there is insufficient record

evidence upon which to base a finding that the "lap dancing" that

occurred at the Club constituted "lewdness," within the meaning

of Section 796.07, Florida Statutes. In support of its argument,

Respondent cites Golden Dolphin No. 2, Inc., v. Division of

Alcoholic Beverages and Tobacco , 403 So. 2d 1372 (Fla. 5th DCA

1981), a case in which the appellate court determined that,

"since there was no evidence submitted to the hearing officer as

to the contemporary community standards of the area [in which the

licensed establishment was located], there was insufficient

evidence to support a finding that the dance [performed on the

licensed premises] was obscene," within the meaning of Chapter

847, Florida Statutes. Respondent's argument is not persuasive.

As noted above, "lewdness," within the meaning of Chapter 796,

Florida Statutes, is "define[d] in terms of either indecency or

obscenity" and an act may be "lewd because it is indecent, even

though [it may not be] obscene." State v. Waller , 621 So. 2d

499, 501 (Fla. 2d DCA 1993). Moreover, the holding in Golden

Dolphin regarding the need for evidence as to contemporary

community standards in obscenity cases tried (without a jury) by

a judge or hearing officer is no longer good law inasmuch as it

was overruled by the Florida Supreme Court in City of Miami v.

Florida Literary Distributing Corporation , 486 So. 2d 569 (Fla.

1986). In Florida Literary Distributing Corporation , the Florida

Supreme Court, disagreeing with the district court below, which

had relied on Golden Dolphin , answered in the negative the

question of "whether [a] trial judge, acting as a finder of fact

in a proceeding where a defendant has no right to a jury trial,

must be apprised of contemporary community standards by evidence

presented by the governmental entity seeking to establish

obscenity." The Court noted that its holding

was best summed up by Judge Sharp's dissent

in Golden Dolphin :

"The general rule that a trial judge, sitting

as a trier of fact, and without hearing any

testimony regarding contemporary community

standards, may apply what he has determined

to be the common conscience of the community

has been the law in our sister courts for

some time.

Absent a showing by the defense at trial that

the judge trying the case is unaware of the

community standards, I see no reason why the

trial judge or hearing officer should not be

able to make the obscenity determination by

examining the challenged activity and

applying his own knowledge of the community

standardsial judges, like juries, are

deemed competent to know community standards

and apply them in other contexts. No

different rule should be evolved for

obscenity cases without express guidance from

our two Supreme Courts."

Id . at 572

3 It appears from a review of the findings of fact contained in

the Recommended Order issued in the underlying administrative

proceeding in the above-cited case of Hoskins v. Department of

Business Regulation , 592 So. 2d 1145 (Fla. 1st DCA 1992) (which

Recommended Order is reported at 1990 WL 749961 (Fla. Div. Admin.

Hrgs.)) that the licensees in that case were held responsible for

the lewd conduct of their dancers based upon testimony concerning

what occurred at the licensed premises on only two dates (which

were more than four months apart). In the instant case, Special

Agent Murray testified regarding visits that he made to the Club

on three different dates over a ten-day period, during which he

observed "lap dancing." If the evidence in Hoskins was

sufficient to establish the licensees' liability for the lewd

conduct of their dancers (which also occurred in an area of the

licensed premises with "subdued lighting"), then, a fortiori,

Special Agent's Murray testimony is sufficient to establish

Respondent's liability for the lewd conduct of its dancers on the

dates Special Agent Murray visited the Club. See also Rule 61A-

2.022, Florida Administrative Code, which suggests that a

licensee may be held liable and be penalized for "a pattern of

three violations [of Chapter 796, Florida Statutes, dealing with

lewd and lascivious conduct] on different dates within a 12-week

period by employees, independent contractors, agents, or patrons

on the licensed premises or in the scope of employment in which

the licensee did not participate."