Appendix — Seminole Entertainment, Inc. v. City of Casselberry
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APPENDIX TABLE OF CONTENTS
Appendix A — Order of Fifth District Court of
Appeal dated March 22, 2002, Seminole Enter-
tainment, Inc. v. City of Casselberry, 813 So.2d
186 (Fla. 5th DCA 2002) ......c.cccsessesssssesssssesvestenees App.
Appendix B — Order of Fifth District Court of
Appeal dated March 22, 2002, Seminole Enter-
tainment, Inc. v. City of Casselberry, 811 So.2d
BO Ge. GE ICA BOOT) nsec ereccosesscossvscvcsesesessedenes App.
Appendix C — Circuit Court Order dated July 17,
2001 Seminole Entertainment, Inc. v. City of Cas-
selberry, 8 Fla. L. Weekly Supp. 613a .................. App.
Appendix D — Supreme, Court of Florida Order
dated December 30, 2002, Seminole Entertain-
ment, Inc. v. City of Casselberry, 835 So.2d 269
i oni ilar cea tania takpinioneineitenonies App.
Appendix E — Section 14-92, Casselberry Adult
Racial le stich cei chignieiiabienedockenendeomentinubenrnewnns App.
Appendix F — Section 14-93, Casselberry Adult
IIT a ui a oon caldcal bu rebdguebbasveabinenekbrveuabinsien App.
Appendix G — Seminole Entertainment, Inc.'s
Complaint/Petition for Writ of Certiorari Di-
rected to the City of Casselberry, March 2, 2001,
In the Circuit Court in and for Seminole County,
Florida, Case No. 0123AP (without lower court
ET iii csktuldiseynniincloemesniirstsniiiverenixvebeanivenieeds App.
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21
30
32
36
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App. 1
APPENDIX A
SEMINOLE ENTERTAINMENT, INC., ETC.,
Petitioner, v. CITY OF CASSELBERRY, FLORIDA,
Respondent.
Case No. 5D01-2312
COURT OF APPEAL OF FLORIDA,
FIFTH DISTRICT
813 So. 2d 186; 2002 Fla. App. LEXIS 3771;
27 Fla. L. Weekly D 682
March 22, 2002, Opinion Filed
COUNSEL:
Steven G. Mason of Law Offices of Steven G. Mason,
Orlando, for Petitioner.
Usher L. Brown, Anthony A. Garganese, and Jeffrey S.
Weiss of Brown, Ward, Salzman & Weiss, P.A., Orlando,
for Respondent.
JUDGES:
GRIFFIN and PALMER, J.J., concur. COBB, J., dissents
with opinion.
OPINION:
PER CURIAM.
Seminole Entertainment, Inc. d/b/a Rachel’s (“Ra-
chel’s”), petitions this court to issue a writ of certiorari
directed to the circuit court’s decision upholding the
revocation of the Rachel’s adult entertainment license.
Applying the narrow scope of review required in this
second tier certiorari proceeding, we deny the petition.
App. 2
Casselberry served Rachel’s with a notice of intent to
revoke its adult entertainment license on the basis that
Rachel’s was permitting the sale and use of controlled
substances, as well as prostitution and other prohibited
sexual activities, to take place on its premises. Pursuant to
Casselberry’s adult entertainment code, an evidentiary
hearing was held before the city commission which re-
sulted in the revocation of Rachel’s license.
Rachel’s timely filed a petition for writ of certiorari in
the circuit court alleging six claims of error. The circuit
court denied the petition and affirmed the city commis-
sion’s decision. In an extensive opinion, the circuit court
addressed and rejected all of Rachel’s claims. Rachel’s
thereafter timely petitioned this court for certiorari review
of that decision.
In this second tier certiorari appeal, the scope of
review is extremely narrow. As articulated by the Supreme
Court in Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523
(Fla. 1995):
Certiorari in circuit court to review local admin-
istrative action under Florida Rule of Appellate
Procedure 9.030(c)(3) is not truly discretionary
common-law certiorari, because the review is of
en In other words, in such review the cir-
cuit court functions as an appellate court, and,
among other things, is not entitled to reweigh
the evidence or substitute its judgment for that
of the agency.
As the case travels up the judicial ladder, review
should consistently become narrower, not broader.
We have held that circuit court review of an ad-
ministrative agency decision, under Florida Rule
of Appellate Procedure 9.030(c)(3), is governed by
PEST aD I LROMISE Gud DA
App. 3
a three-part standard of review: (1) whether pro-
cedural due process is accorded; (2) whether the
essential requirements of law have been ob-
served; and (3) whether the administrative find-
ings and judgment are supported by competent
substantial evidence. The standard of review for
certiorari in the district court effectively elimi-
nates the substantial competent evidence com-
ponent. The inquiry is limited to whether the
circuit court afforded procedural due process and
whether the circuit court applied the correct law.
Id. at 530 (citations omitted) (emphasis added).
As to whether the circuit court afforded Rachel’s
procedural due process, in its petition for certiorari Ra-
chel’s does not even contend to the contrary. Rather, in
asserting a due process argument, Rachel’s improperly
argues that it was not afforded procedural due process in
the hearing before the city commission. Arguments as to
the alleged lack of due process before the city commission
were properly presented to the circuit court but are beyond
the scope of the due process review available here.’
* Rachel’s also sought a determination of whether the city commis-
sion had failed to afford it due process by initiating a separate action in
the circuit court seeking declaratory and injunctive relief against the
city’s enforcement of the license revocation. Seminole Entertainment v.
City of Casselberry, 811 So. 2d 693, 2001 Fla. App. LEXIS 16909, 27 Fla.
L. Weekly D19 (Fla. 5th DCA 2001) (“Rachel’s I”). Since no party to that
proceeding raised the impropriety of seeking injunctive relief by filing a
separate action, rather than seeking review or a stay in the original
proceedings, this court did not dismiss Rachel’s I won procedural
grounds. Had Casselberry raised such an objection, [?ache!’s I would
have been dismissible on procedural grounds, since Rachel’s had no
right to initiate an independent action to enjoin the license revocation
in light of Rachel’s adequate remedy at law to review the propriety of
(Continued on following page)
App. 4
As to whether the circuit court applied the correct law,
the certiorari petition filed by Rachel’s once again primar-
ily and improperly focuses on alleged legal errors commit-
ted during the city commission proceedings, not the
application of incorrect law by the circuit court during the
certiorari proceedings. Such arguments are not properly
before us for review. The only arguments directed toward
the circuit court’s alleged application of incorrect law were
as follows:
(1) The circuit court failed to apply the cor-
rect law in upholding the license revocation on
the grounds that the notice of revocation was le-
gally sufficient;
(2) The circuit court failed to apply the cor-
rect legal standard in determining whether the
evidence supported revocation; and
(3) The circuit court applied the incorrect
law in finding that the prompt judicial review
constitutionally mandated in prior restraint
the city commission’s action through certiorari in the original proceed-
ing. Although Rachel’s had the right to seek an injunction against the
enforcement of the city’s adult entertainment ordinances, it had no
right ic seek to enjoin the license revocation decision. See City of
Melbourne v. Hess Realty Corp., 575 So. 2d 774 (Fla. 5th DCA 1991). All
Rachel’s had a right to receive was certiorari review of the city commis-
sion’s decision. If it wished to suspend the effect of that decision, it had
the right to seek a stay pending review in this case. Rachel’s never had
a right to obtain from the circuit court an injunction preventing the city
commission from proceeding with the license revocation based upon
events at the hearing. In any event, the Rachel’s I panel, by limiting the
duration of the temporary injunction to the time necessary for issuance
of a decision by this merits panel, in essence deemed the injunction
action as a motion for stay associated with this certiorari proceeding.
App. 5
cases simply means prompt judicial access, not a
prompt judicial decision.
However, in support of each of these arguments,
Rachel’s simply contends that the circuit court came to an
incorrect legal conclusion based on the facts before it. As
such, its arguments do not support a reversal in this
second tier certiorari proceeding.
The remaining arguments raised by Rachel’s relate to
whether there was error in the ccnduct of the hearing by
the city commission or evidentiary rulings made during
that hearing. These issues were for determination by the
circuit court in its first tier certiorari review and do not
support a granting of second tier certiorari by this court.
For example, as to the cross-examination rulings refer-
enced in Rachel’s I, Rachel’s contends that the rulings
denied it due process, whereas Casselberry argued that
objections were properly sustained on the basis that the
questions asked went beyond the scope of direct examina-
tion. A review of the cross examination at issue (attached
hereto as an appendix) does not support a conclusion that
the circuit court applied the incorrect law in denying the
petition for certiorari on that issue. In addition, in apply-
ing the correct law, the circuit court could reasonably have
found that disallowing a response to the question objected
to was harmless error, since the question was related to
whether the owners of the licensee had knowledge of the
illegal conduct occurring on the premises and the circuit
court found that the term “licensee” was broadly defined in
the city ordinances so as not to require knowledge by the
owners of the licensee.
We deny Rachel’s petition for writ of certiorari. By the
terms of this court’s order in Rachel’s I, the injunction
App. 6
entered pursuant thereto automatically expires upon
issuance of this opinion.
GRIFFIN and PALMER, J.J., concur.
COBB, J., dissents with opinion.
APPENDIX
CROSS-EXAMINATION OF MR. LANEY
BY COUNSEL FOR RACHELS:
Q: During the course of your investigation, which, as I
understand it, was pretty much full-time for six months —
A: That’s correct.
Q: -— how much arrests were made for prostitution?
A: I don’t have an exact number. If you'd like, I can
count up what I’ve got here.
Q: Please. Please. And I take it, it would take a long
time to do that?
I would say within a minute or two.
Go for it.
There was a total of six —
Six?
yr oO Pr Oo P
— entertainers from the Casselberry location that
were hemmed with prostitution, two of which, which were
also charged with RICO, organized crime.
Q: And what evidence do you have that any of the
five individuals whom I named, who were on the board of
RRS UI REAL SNE ee sa See ta:
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App. 7
directors of Seminole Entertainment, had knowledge of
the activities of these six individuals?
A: That’s going to be part of an ongoing investiga-
tion, and I’m not going to answer that at this time.
MS. McINTOSH: Mr. Sheppard, did you say, the five
individuals that I named?
COUNSEL FOR RACHEL’: I thought that’s what I
said.
MS. McINTOSH: I only had four individuals down.
COUNSEL FOR RACHEL’: I stand corrected.
Thank you.
MS. McINTOSH: I just wanted to make sure we
didn’t miss one.
COUNSEL FOR THE CITY: For the record, my
objection is that the testimony is the subject of a pending
investigation.
COUNSEL FOR RACHEL’S: Well, I move for a
continuance until it’s completed so that we can have due
process and the right to confront our witness.
COUNSEL FOR THE CITY: My response to that is,
Mr. Mayor, is as far as the pending investigation or unre-
lated charges based upon statewide investigations and
other criminal charges that have nothing to do with this
civil revocation hearing, there’s — and that the evidence
before this commission, we will stand on the evidence as
presented before this commission.
Should counsel, in his closing argument, deem that
that evidence is insufficient, certainly he can argue that,
App. 8
such as he already has with the state evidence. But there’s
no necessity for a continuance. We’ll stand on the evidence
that we present in these days of testimony.
COUNSEL FOR RACHEL’S: My position is that
once an individual has a license granted by a governmen-
tal entity, that the Constitution of the United States,
specifically the due process clause of the 14th Amendment,
as well as Article 1, Section 9 of the Florida Constitution,
affords a licensee due process of law.
And I believe in fundamental fairness and fundamen-
tal principles of due process would afford the licensee the
opportunity to cross-examine and to pursue his theory of
defense. But if I am confronted with “Oh, it’s a matter of
an ongoing investigation,” I’m blocked from the very
rudiment of due process, period.
And so respectfully, I’d ask that you direct the witness
to answer my question, most respectfully, Mr. Mayor.
MAYOR PRONOVOST: Madam Attorney.
MS. McINTOSH: Mr. Mayor, the Cross-examination
can’t exceed the scope of the Direct Examination, and
there was nothing direct about inquiry into ongoing. The
evidence that you heard is the evidence that the city
manager’s moving forward with. That’s the scope of
inquiry.
MAYOR PRONOVOST: The objection is sustained.
COUNSEL FOR RACHEL’S: I want to object to
gettin’ double-teamed here. Counsel for the city manager
makes an objection and counsel for the board is arguing,
and I never have an opportunity to respond. And that is
denial of due process in and of itself.
App. 9
MAYOR PRONOVOST: Thank you, Madam Attor-
ney.
MS. McINTOSH: Im here -
COUNSEL FOR RACHEL’S: I can’t hear.
MS. McINTOSH: I’m here to function as legal
counsel for the city commission, so all I’m doing is provid-
ing you with legal advice as to the objections that you’re
hearing.
MAYOR PRONOVOST: Thank you.
7 COUNSEL FOR RACHEL’S: I would also submit
that there is no exception in the civil proceeding for, quote,
: an ongoing investigation, unquote.
COUNSEL FOR THE CITY: Mr. Mayor, I'll with-
draw the formal objection based upon the ongoing nature
of the investigation, and basically object because of the
fact that the testimony or the question exceeds the scope of
Direct, which actually is provided directly in the code. And
although these are lax rules of procedure, the code re-
quires for Cross Examination to follow that rule.
MAYOR PRONOVOST: Mr. Sheppard.
COUNSEL FOR RACHEL’S: The theory of the City
here, as I understand it is, that the licensee or any person
on its or his behalf, or any person listed on the application.
If they allow possession or sale of a controlled substance, if
they allow prostitution, if they allow any specified sexual
activity, then the license is subject to revocation. Now,
counsel stood up here and got the second shot at an
opening statement, and that’s exactly what he told you
he’s going to prove.
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App. 10
Now, the method by which he’s attempting to prove it
is, that these low-level people, quote, are acting as man-
agement, end quote. Well, they got to get their power from
somewhere and it ain’t coming from the dancers. It’s got to
come from above. So the purpose of my inquiry is, who
gave Mr. Otero any authority to do anything? Who gave
any of these individuals by whom the witness is character-
izing as a quote, management, end quote, the power to
quote, manage? I’m sure the chief of police gave this
sergeant his power. Did anybody above these rogue man-
agers give them the power to act on their behalf?
And that’s my purpose of inquiry, is that we have in
evidence, Exhibit 1. Exhibit 1 has five — four names on it. I
got that right. Got four names on it. He’s never — he can’t
give you any evidence about them. And what I’m asking is,
does he have any evidence? And he says, “I can’t tell you.”
Well, how in the world is anybody going to carry their
burden here if he isn’t able to answer those questions?
COUNSEL FOR THE CITY: Mr. Mayor, in response,
counsel has asked this witness whether or not this witness
had any direct knowledge as of the four individuals
whether they knew or participated in the different catego-
ries of the testimony that Sergeant Laney has testified to.
He’s already established that fact, the fact that this
‘witness has admitted and said that he, himself — as far as
the testimony that’s before this commission — did not see —
or his testimony is what it is with regard to the limitations
with regard to these four individuals.
As counsel has said, that is not, by any means, all that
the city manager is relying upon for submitting this case
of revocation to you. That is, counsel has, in my opinion
and the city manager’s opinion, mischaracterized these
iia te NS hd eal See ha et
App. 11
individuals for purposes of the record as, quote, low-level,
end quote, employees, and quote, rogue, end quote, em-
ployees. The evidence is what it is. Mr. Otero with his
testimony is who he is. Whatever you decide as fact-
finders is who is he. So is Mr. Rexroad. So are the dancers
that were named.
I am comfortable to submit the record to you with its
limitations. The questions exceeded the scope of Direct,
and there’s no necessity for going any further. Counsel’s
already established the facts that he wanted to establish.
MAYOR PRONOVOST: Mr. Sheppard.
COUNSEL FOR RACHEL’: I have nothing further
to submit.
MAYOR PRONOVOST: Okay. Objection is sustained.
Please continue.
COUNSEL FOR RACHEL’: Thank you.
BY COUNSEL FOR RACHEL’:
Q. Do you have any evidence that either of the four
individuals that I named that are in Exhibit 1 — you have
Exhibit 1 there before you, correct —
A. Yes, sir.
Q: those four individuals, do you have any evidence
to indicate that they knew of any of the drug transactions
about which you've testified?
A: Once again, it’s part of an ongoing investigation
and I’m not going to answer that.
COUNSEL FOR RACHEL’S: Same argument, I
suppose.
App. 12
MS. McINTOSH: I have a question of the witness.
You're saying that, as you stand here today, you are not
prepared to provide this commission with any evidence
relating to that question; is that true?
THE WITNESS: Yes, ma’am; that’s correct.
MS. McINTOSH: So his answer is, none.
COUNSEL FOR RACHEL’: That isn’t what he
answered. Is your answer, none?
MS. McINTOSH: He’s not giving you any, and that’s
the answer.
COUNSEL FOR RACHEL’S: Well, but that isn’t the
answer to my question is, none. I'll accept that if that’s the
answer. If somebody wants to stipulate to me that there is
no evidence that either of these four individuals knew of
any drug transactions, I’ll go on. But that isn’t what he
said. He said, “I’m not telling you,” is what he said. And I’d
say to you — and I respect the ongoing investigation
privilege. It just doesn’t simply apply here, is what my
position is. But he’s not telling me, no, he doesn’t know of
any.
MS. McINTOSH: No. But what he’s saying is that,
he’s not going to testify as to if there’s any evidence.
COUNSEL FOR RACHEL’S: And I’m asking you to
compel him to, Mr. Mayor. In the — in the spirit of due
process and fundamental fairness, I have the right to ask
him those questions and I have a right to receive the
answers.
MS. McINTOSH: Mr. Mayor, as a matter of law, I
would advise you that the question exceeds the scope- of
Abd eR RT At A Re HATE
App. 13
Direct Examination. There was no Direct regarding any
ongoing investigation or inquiry into what other - the
folks listed in Exhibit 1 did. He’s testified as to what he
saw at Rachel's.
MAYOR PRONOVOST: Objection overruled.
COUNSEL FOR RACHELS: Yes, sir.
DISSENT BY:
COBB —
DISSENT:
COBB, J., dissenting.
A quasi-judicial proceeding contemplates a certain
level of basic fairness in order to comply with the require-
ments of due process. See Hadley v. Department of Ad-
ministration, 411 So. 2d 184 (Fla. 1982). As I read the
transcript of the proceeding before the city commission in
this case, that basic fairness was denied. For example, the
city attorney flatly advised the mayor, as the presiding
officer at the hearing, that the city’s principal witness was
not going to subject himself to cross-examination on a
crucial issue, thereby depriving Rachel’s of even a proffer
of evidence on that issue. And the mayor agreed. Despite
the stringent standard of review for a second tier of
certiorari review, I would hold that the circuit court failed
to apply the correct law in its consideration of this issue.
App. 14
Rachel’s is entitled to a new hearing, one which comports
with elementary notions of due process.”
" The harmless error analysis has no application to this matter
since it cannot be determined (1) what the witness’ answer would have
been, (2) what avenues of inquiry would have developed had an answer
favorable to Rachel’s been given, and (3) what effect all this would have
had on the tribunal’s consideration as to: (a) whether a violation of the
licensing laws was established and (b) if so, whether a penalty short of
revocation might have been appropriate. See Austing v. State, 804
So. 2d 603 (Fla. 5th DCA 2002).
App. 15
APPENDIX B
SEMINOLE ENTERTAINMENT, INC.,
Appellant, v. CITY OF CASSELBERRY,
FLORIDA, Appellee.
Case No. 5D01-811
COURT OF APPEAL OF FLORIDA,
FIFTH DISTRICT
811 So. 2d 693; 2001 Fla. App. LEXIS 16909;
27 Fla. L. Weekly D 19; 26 Fla. L. Weekly D 2822
November 30, 2001, Opinion Filed
COUNSEL:
Steven G. Mason of Law Offices of Steven G. Mason,
Orlando, for Appellant.
Usher L. Brown and Anthony A. Garganese of Brown,
Ward, Salzman & Weiss, P.A., Orlando, for Appellee.
JUDGES:
COBB, J. HARRIS and PETERSON, JJ., concur.
OPINION BY:
COBB
3 OPINION:
COBB, J.
| The appellant, Seminole Entertainment, Inc. d/b/a
Rachel’s, appeals the circuit court’s denial of its motion for
a temporary injunction against the City of Casselberry,
which had revoked its adult entertainment license by
order dated January 31, 2001.
App. 16
Prior to revocation, Rachel’s had been operating as a
licensed adult entertainment establishment in Cassel-
berry, Seminole County, Florida, for approximately ten
years, featuring striptease/erotic dancing. Such enter-
tainment was a permitted activity under Casselberry’s
adult entertainment code.’ On November 10, 2000, Cassel-
berry served Rachel’s with a notice of intent to revoke its
license on the basis that the licensee was permitting the
sale and use of controlled substances, prostitution and
other prohibited sexual activities on its premises. Cassel-
berry’s code provides for a hearing before the city commis-
sion in regard to revocation proceedings if requested. Once
a hearing date was set, Rachel’s moved to disqualify the
commission for bias. This motion to disqualify was denied
and subsequent to the revocation hearing a final revoca-
tion of license was filed.
Rachel’s then filed a two count complaint with the
circuit court seeking a permanent injunction and declara-
tory relief. In addition, Rachel’s sought a temporary
injunction. A hearing was held on this later motion on
March 9, 2001. The circuit court ultimately denied Ra-
chel’s motion for temporary injunction and that order is
the subject of this appeal.
Rachel’s indicates in its initial brief that it demon-
strated a substantial likelihood of success on the merits
since it was denied a neutral and unbiased fact-finder. The
evidence supporting the motion to disqualify showed that
* The City’s adult entertainment licensing ordinance was exrcessly
declared to be valid in Boss Capital, Inc. v. City of Casselberry, 187 F.3d
1251 (11th Cir.1999).
ee a te Se _-
App. 17
the Casselberry mayor (Pronovost), who subsequently
presided over the proceedings and ruled upon legal objec-
tions to proffered evidence and testimony, had run for
office on a platform directed against alleged “illegal
activities” at “strip bars” in Casselberry, such as Rachel’s.
The mayor had publicly charged that Rachel’s was a hot
spot of drug proliferation, underage drinking, and prosti-
tution. Priur to the hearing, the Casselberry city manager,
acting as the prosecutor of the case against Rachel’s, had
consulted with various commission members about the
illegal activities at Rachel’s. The motion to disqualify also
asserted that one commissioner (Henson) actually partici-
pated in an uncercover investigation by the Casselberry
police against Rachel’s” Pursuant. to the City of Cassel-
berry’s code, the procedures utilized in a revocation hear-
ing are those typically used in a civil case with the city
manager having the burden of proof. The hearing is to also
be “informai. ’
The evidence’ presented at the hearing by the city
manager in his prosecutorial role basically showed that
illegal activities were observed at Rachel’s, but arguably
may have occurred outside the presence of any key mana-
gerial personnel. Virtually all objections raised by Rachel’s
were overruled by Pronovost; those by the city manager
were inevitably sustained. Considerable testimony was
presented about illegal activity at a different nightclub
located in Orange County. Significantly, the principal
? Commissioner Henson ultimately cited a conflict of interest and
did not participate in any vote.
2 The commission decided to utilize a “clear and convincing”
standard as opposed to a preponderance of the evidence standard.
App. 18
witness for the City, one Laney, refused to answer an
inquiry by counsel for Rachel’s in regard to any informa-
tion showing that the owners of Rachel’s had knowledge of
any illegal activities on the premises. The basis for this
refusal was that any such information was part of an
ongoing investigation. The mayor then improperly sus-
tained the City’s objection to further cross examination by
Rachel’s in this regard.
On appeal the City concedes that the hearing was
“quasi-judicial in nature.” See Vicbar, Inc. v. City of
Miami, 330 So. 2d 46 (Fla. 3d DCA 1976). It points out,
however, that the quality of due process required in a
quasi-judicial hearing is not the same as that to which a
party to a full judicial hearing is entitled, and such hear-
ings are not controlled by strict rules of evidence and
procedure. See Lee County v. Sunbelt Equities, II, Ltd.
Partnership, 619 So. 2d 996, 1002 (Fla. 2d DCA 1993). The
City also points out that its adult entertainment code
specifically prohibits prostitution, sexual activity or drug
use at licensed establishments where the licensee “or any
person on its or his behalf” has knowingly allowed such
conduct. The City may regulate such unlawful conduct
“ The standard for determining whether an act of a municipal
corporation is quasi-judicial is whether that action is dependent upon a
showing made at a hearing required by law to afford due process to the
affected party. Hargrove v. Town of Cocoa Beach, 96 So.2d 130
(Fla.1957); City of Tampa v. Islands Four, Inc., 364 So.2d 738 (Fla. 2d
DCA 1978); Board of County Comm'rs of Hillsborough County v. Casa
Development Ltd., II, 332 So.2d 651 (Fla. 2d DCA 1976). The act is
quasi-judicial if due process is simply required by the nature of the
right or privilege at issue. A licensee has a property right in renewal of
a business license of which he cannot be deprived absent the requisites
of due process. Vicbar.
VN OOO GE OL eth OEE EE GATES o
ata
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App. 19
pursuant to its police powers. City of Daytona Beach v. Del
Percio, 476 So. 2d 197, 204 (Fla. 1985).
Rachel’s counters that quasi-judicial proceedings, such
as those herein concerned, contemplate a certain level of
basic fairness in order to afford due process. See Hadley v.
Department of Administration, 411 So. 2d 184 (Fla. 1982);
Lee County, 619 So. 2d at 1002; Jennings v. Dade County,
589 So. 2d 1337 (Fla. 3d DCA 1991). As succinctly stated in
one leading treatise:
A hearing or trial in an administrative pro-
ceeding to revoke a license or permit must be
fair. While the tribunal may not be a court or the
proceeding strictly judicial, there must be an or-
derly and fair procedure. Technical legal rules of
evidence and procedure may be disregarded, but
no essential element of a fair trial can be dis-
pensed with unless waived. The licensee must be
fully apprised of the claims against him or her
and of the evidence to be considered, and must be
given the opportunity to cross-examine wit-
nesses, to inspect documents and to offer evi-
dence in explanation or rebuttal. The presiding
official should be judicial in attitude and de-
meanor and free from prejudgment and from zeal
for or against the licensee or permittee. ...
[Footnotes omitted].
9 McQuillin, Municipal Corporations, § 26.89 (3rd Ed.).
The City points out that there is authority for the
proposition that mere political bias or an adverse political
philosophy is not sufficient to invalidate a quasi-judicial
proceeding or disqualify members of a city commission.
Hortonville Joint School Dist. No. 1 v. Hortonville Educ.
Ass’n, 426 U.S. 482, 49 L. Ed. 2d 1, 96 S. Ct. 2308 (1976)
App. 20
(union felt that board manifested personal bitterness
towards teachers in hearing to determine whether said
teachers should be dismissed. Court found that teachers
did not show that board members had the kind of personal
or financial stake in the decision that might create a
conflict of interest).
In this case, Rachel’s has established more than mere
political bias or an unfriendly political atmosphere. In
effect, it was denied the right to challenge, through cross-
examination, the testimony of the principal witness
against it. The evidentiary rulings by Mayor Pronovost
were not merely erroneous but rather reflect a bias so
pervasive as to have rendered the proceedings violative of
the basic fairness component of due process. We reverse
the order denying Rachel’s motion for a temporary injunc-
tion.
REVERSED.
HARRIS and PETERSON, JJ., concur.
lin Be a, Rta pac i i FCA RIN EN IO.
App. 21
APPENDIX C
8 Fla. L. Weekly Supp. 613a
SEMINOLE ENTERTAINMENT, INC., d/b/a
RACHEL’s, Petitioner, vs. CITY OF CASSELBERRY,
FLORIDA, a municipal corporation, Respondent.
Circuit Court, 18th Judicial Circuit (Appellate)
in and for Seminole County.
Case No. 01-23.
Decision filed July 17, 2001.
Debra S. Nelson, Judge.
Petition for Writ of Certiorari.
Counsel: Steven G. Mason, for Petitioner.
Anthony A. Garganese, for Respondent.
(NELSON, J.) The Plaintiff, Seminole Entertainment,
Inc. d/b/a Rachel’s (hereinafter “Rachel’s”), has filed a
Petition for Writ of Certiorari, challenging the revocation of
its adult entertainment license by the City of Casselberry.
During a lengthy undercover operation by the Semi-
nole County Sheriff’s Office and the City/County Investi-
gative Bureau, law enforcement agents obtained evidence
that prostitution, lewd activity, and drug sales occurred on
the premises of the Rachel’s club, which is owned by
Seminole Entertainment, Inc. As a result of this evidence,
several arrests were made, and the City held proceedings
to revoke Rachel’s adult entertainment license. The City
Commission revoked the Petitioner’s adult entertainment
license for a period of two years, effective February 1,
2001.
The Petitioner claims six errors during the hearing
that require reversal: (1) that the City Commission should
App. 22
have disqualified itself; (2) that there was no due process
afforded at the hearing; (3) that there was insufficient
evidence that ownership knew or should have known that
the illegal activities occurred on the premises; (4) that the
City Commission had unfettered discretion to suspend or
revoke the license; (5) that the City Commission used the
incorrect standard of review; and (6) that there is no
prompt judicial review. For the reasons stated below, the
decision of the City Commission is affirmed.
When considering an appeal from a final administra-
tive order, the Circuit court must look to three compo-
nents: whether procedural due process was accorded to the
party seeking review, whether the essential requirements
of the law were observed by the enforcement board, and
whether the administrative findings and judgment are
supported by competent, substantial evidence. City of
Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla. 1982).
The circuit court may not reweigh the evidence or substi-
tute its judgment about what should be done for the
administrative agency. Lee County v. Sunbelt Equities, 619
So.2d 996 (Fla. 2d DCA 1993).
Disqualification of the City Commissioners
The actions of the City Commission are not governed
by the same rules as an elected or appointed judge. There
is no “right” to have the City Commission recused, as there
is such a “right” in the case of disqualifying a judge.’
Chapter 112, Florida Statutes, and Section 286.012,
Florida Statutes set forth the only basis on which a city
commissioner may abstain from voting. A reading of these
’ See Fla. R. Jud. Admin. 2.160.
ee Se
App. 23
statutes shows that a city commissioner may abstain from
voting is when there is a conflict of interest.” See $286.012,
Florida Statutes. The only time a city commissioner must
abstain from voting is when a measure would inure to the
commissioner’s “special private gain or loss.” See
§112.3143(3)(a), Florida Statutes. The Petitioner has not
alleged that any city commissioner would receive any
“special gain or loss” as a result of the vote on the revoca-
tion of the license. Even if there were some personal bias
or prejudice against the Petitioner by the city commission-
ers, the rules do not allow the commissioner to abstain.
See Op. Fla. Comm. Ethics 79-14 (1979) (“it is clear that,
when adopting the Code of Ethics, the Legislature was
concerned primarily with the effect of a public official’s
economic interests and relationships upon the perform-
ance of his public duties, rather than the effect of his
personal preferences or animosities.”).
This Court is also guided by the United States Su-
preme Court’s opinion in Hortonville Joint School District
#1 v. Hortonville Education Association, et al., 426 U.S.
482 (1976). In Hortonville, the court ruled that political
opposition or political bias of school board members
against the teachers’ union was not sufficient to disqualify
elected officials. Id. As such, the court would not interfere
with the exercise of the local government's discretion
notwithstanding evidence that the elected officials had, in
the context of political speech, made statements from
which one could infer an anti-union bias. Id. The fact that
the elected officials may have expressed political and
policy views as a legislator or politician on an issue that
may potentially come before them in a quasi-judicial
proceeding does not prevent them from deciding a particu-
lar case fairly. Jd. In the instant case, none of the alleged
prejudicial statements made by the City Commissioners
related specifically to the license revocation proceedings.
App. 24
Therefore, there was no basis for the City Commissioners
to disqualify themselves.
Due Process under Article I, Section 9 of the
Florida Constitution
The Petitioner’s second claim is that they were not
afforded procedural or substantive due process as guaran-
teed by Article I, Section 9 of the Florida Constitution. The
Petitioner claims that the revocation of its adult enter-
tainment license violates its substantive due process right
to freedom of expression. The Petitioner also cites numer-
ous instances where it believes that the City Commission-
ers failed to afford procedural due process.
The Petitioner’s claim that its substantive due process
rights have been violated is without merit. “When ‘speech’
and ‘non-speech’ elements are combined in the same
course of conduct, a sufficiently important governmental
interest in regulating the non-speech element can justify
incidental limitations on First Amendment freedoms.”
United States v. O’Brien, 391 U.S. 367, 1678-79 (1968). In
order to determine whether a government regulation is
sufficiently justified, the regulation must satisfy a four-
prong test. The regulation is sufficiently justified
if it is within the constitutional power of the gov-
ernment; it furthers an important or substantial
governmental interest; if the governmental in-
terest is unrelated to the suppression of free ex-
pression; and if the incidental restriction on
alleged First Amendment freedoms is no greater
than is essential to the furtherance of that inter-
est.
Id.
App. 25
The Supreme Court, in City of Erie v. Pap’s A.M., 529
U.S. 277 (2000), adopted the O’Brien test for evaluating
laws which regulate public nudity. In Erie, the Supreme
Court upheld an ordinance that banned all public nudity.
Justice O’Connor, writing for the Court, acknowledged
that nude dancing is expressive conduct, although “only
within the outer ambit of the First Amendment’s protec-
tion.” Id. at 289. Justice O’Connor went on to hold that
“government restrictions on public nudity ... should be
evaluated under the framework set forth in O’Brien for
content-neutral restrictions on symbolic speech. Jd. The
Supreme Court, in Erie, addresses the third and fourth
prongs of the O’Brien test. As to the third prong, the Court
stated that “the State’s interest in preventing harmful
secondary effects of nude dancing is not related to the
suppression of expression.” Id. at 293. The Court also
dealt with the fourth prong of the O’Brien test, finding
that the dancers at such an establishment are “free to
perform wearing pasties and G-strings. Any effect on the
overall expression is de minimis.” Id. at 294.
In the case at bar, the dancers are allowed to dance
erotically at the Petitioner’s place of business, even after
the revocation of the adult entertainment license, so long
as they wear bikini tops and sexy dresses. This, according
to Erie, is a de minimis intrusion, satisfactory under the .
O’Brien test. In fact, the Supreme Court has upheld a
sanction as extreme as a one year closure, under the
fourth prong of the O’Brien test, in Arcara v. Cloud Books,
Inc., 478 U.S. 697 (1986). In Arcara, a case factually
similar to the instant case, the Supreme Court held that
such a sanction “was directed at unlawful conduct having
nothing to do with ... expressive activity.” Id. at 707.
Therefore, the Petitioner has not shown that it has
App. 26
suffered a deprivation of its substantive due process right
to freedom of expression as guaranteed under Article I,
Section 9 of the Florida Constitution.
The Petitioner’s claim that it was deprived of its
procedural due process rights is also without merit. The
notice provided told the Petitioner that the charges were
that “the licensee or a person on its behalf or a person
listed on the application pursuant to Section 14-80(b) of
this article has knowingly allowed possession, use, or sale
of controlled substances on the premises of the establish-
ment or business; (2) ... knowingly allowed prostitution
on the premises of the establishment; [and] (3) ... know-
ingly allowed any specified sexual activities to occur on the
premises of the establishment.” Therefore, the Petitioner
knew the nature of the charges brought against it at the
hearing. These were the same violations that the Peti-
tioner was found to have violated after the hearing. As
such, the Petitioner cannot claim to have been “surprised”
by the charges brought at the hearing. The Petitioner had
the assistance of counsel at the hearing. Counsel con-
ducted cross-examination of the witnesses regarding the
events which were alleged to have occurred at the estab-
lishment, but chose not to put on its own witnesses. The
Petitioner also claims that inadmissible hearsay tainted
the proceedings. However, the rules of evidence are not as
strictly enforced in a quasi-judicial proceeding. Therefore,
hearsay is admissible in this type of proceeding. Finally,
the order by the Board of City Commissioners comports
with due process, setting forth the factual basis for its
findings. |
App. 27
Failure to Prove that the Owners Knew or
Should Have Known of the Alleged Improprieties
The Petitioner claims that there was insufficient
evidence to establish that the owners knew or should have
known that the alleged violations were occurring on the
premises of the business. However, Section 14-70 of the
City of Casselberry Adult Entertainment Code defines
“licensee” as “any person ... who... operates or controls
the establishment or business,” and defines an “operator”
as a “manager” or “doorman.” Therefore, the owners are
held responsible for the actions of those they leave in
control of the business. The City Commission found that
both managers and doormen knew of the activities that
were alleged to have occurred on the premises of the
business. Therefore, this claim has no merit.
The City Code Vests Unbridled Discretion
with the City Commission
The Petitioner’s next claim is that the City Commis-
sion has the unfettered and unbridled discretion to deter-
mine whether to revoke or suspend a license under the
code. However, this is without merit. The revocation of a
license can occur only after a showing that the licensee
knowingly allowed the use or sale of controlled substances
on the premises of the business, knowingly allowed prosti-
tution on the premises of the business, or knowingly
allowed specified sexual acts on the premises of the busi-
ness. A suspension does not require such knowledge.
Therefore, there are different standards that must be met
in order for the City Commission to suspend or revoke 2n
adult entertainment license, and the City Commission
does not have the alleged unfettered discretion to suspend
or revoke a license.
App. 28
The City Commission Relied on
the Wrong Standard of Proof
The claim that the City Commissioners relied on the
wrong standard of proof is without merit. In Paragraph 21
of its order, the City Commission states that “(a]lthough
Article III, Section 14-93(b)(3) of the Casseiberry Code of
Ordinances provides that the City Manager has the
burden of proof by a preponderance of the evidence, the
City Commission, in an abundance of caution, has deliber-
ated and rendered its findings of fact and order in this
case utilizing the higher standards of proof of clear and
convincing evidence.” There was also a motion and second
at the hearing, before the deliberations, to use the higher
standard of clear and convincing evidence. There is no
evidence that the City Commission did not understand the
higher standard, and this Court will not require the City
Commission to affirmatively explain the nuances of the
appropriate burden of proof before making its decisions.
This Court also finds that the burden of proof was not
improperly shifted to the Petitioner at the hearing.
The Casselberry Code does not
Provide for Prompt Judicial Review
The Petitioner claims that, since the Casselberry Code
at issue in this case is a prior restraint on expression,
there must be meaningful and prompt judicial review. For
the reasons stated below, this argument has no merit.
First, the code at issue in this case is not a prior
restraint, but a punishment for subsequent acts. The
City’s application of the Code was “not the result of any
prior restraint ... but is the direct result of appellant’s
abuse of their licenses.” Bay Area News, Inc. v. Poe, 364
PLT BRIT,
App. 29 |
So. 2d 830 (Fla. 2d DCA 1978). The Petitioner was permit-
ted to present nude dancing when it possessed its adult
entertainment license. Only the conduct in violation of the
ordinance allowed the City to revoke the license under the
Code.
Second, the Code at issue here has already been
reviewed and found to be constitutional in Boss Capital v.
City of Casselberry, 187 F. 3d 1251 (11th Cir. 1999). In
Boss Capital, the Eleventh Circuit addressed the “judicial
review” provision of the Casselberry ordinance. The court
held that prompt judicial review only means access to
prompt judicial review, not prompt judicial decision and
certainly not the right of the executive branch to mandate
how quickly the judicial branch does its business. This
decision applies to licensing schemes, not censorship cases.
However, the case at bar is a licensing issue, involving
misconduct under the license, not a censorship issue,
involving the prevention of expression. This Court now
adopts the reasoning of the Eleventh Circuit, as set forth
in Boss Capital.
Since the Petitioner has failed to show that there was
a denial of procedural due process, that the essential
requirements of law were not followed, or that the findings
were not supported by substantial, competent evidence,
the Petition for Writ of Certiorari is hereby DENIED.
App. 30
APPENDIX D
Supreme Court of Florida
MONDAY, DECEMBER 30, 2002
CASE NO.: SC02-1032
Lower Tribunal No.: 5D01-2312
SEMINOLE ENTERTAIN- vs. CITY OF CASSEL-
MENT, INC., ETC. BERRY, FLORIDA
Petitioner(s) Respondent(s)
This cause having heretofore been submitted to the
Court on jurisdictional briefs and portions of the record
deemed necessary to reflect jurisdiction under Article V,
Section 3(b), Florida Constitution, and the Court having
determined that it should decline to accept jurisdiction, it
is ordered that the Petition for Review is denied.
No Motion for Rehearing will be entertained by the
Court. See Fla. R. App. P. 9.330(d).
ANSTEAD, C.J., and WELLS, PARIENTE, QUINCE and
CANTERO, JJ., concur. SHAW and LEWIS, JJ., dissent.
Respondent’s Motion to Strike Supplemental Author-
ity is hereby denied.
ANSTEAD, C.J., and SHAW, WELLS, PARIENTE,
LEWIS, QUINCE and CANTERO, JJ., concur.
A True Copy
Test:
/s/ Thomas D. Hall [SEAL]
Thomas D. Hall
Clerk, Supreme Court
App. 31
bh
Served:
HON. FRANK J. USHER LARRY BROWN
HABERSHAW, CLERK STEVEN G. MASON
HON. MARY ANNE MORSE, JEFFREY S. WEISS
CLERK ANTHONY ANGELO
W/COPY TO CIRCUIT GARGANESE
JUDGE
VICTOR L. CHAPMAN
RALPH STEVEN RUTA
App. 32
APPENDIX E
Sec. 14-92. Suspension and revocation of license.
The City Manager or his designee shall suspend a license
when he or his designee determines that any one (1) of the
following has occurred:
(a) For purposes of this Section 14-92, the term “viola-
tion” shall mean an incident having occurred at, or by, an
adult entertainment establishmert or sexually oriented
business which is prohibited by the provisions of this
Article or made unlawful by F‘S. chs. 561, 562, 563, 564,
565, 794, 796, 800, 826, 827, 847, 893 or 895, or an analo-
gous federal statute.
(b) Inspection of records and premises. In the event that
the City Manager or his designee determines that the
licensee or an operator at or of the licensee has refused to
allow any inspection of records or premises as required by
this Article; the City Manager or his designee may sus-
pend the license for a period not to exceed 30 days.
(c) Illegal Activity/Suspension.
(1) In the event three or more violations occur within a
two year period, and convictions result from at least three
of the violations, the City Manager or his designee shall,
upon the date of the third conviction, notify the licensee
that the license shall be suspended for a period of 30 days
unless good cause is shown in accordance with this Article,
that the violations have not occurred. For purposes of
calculating this two year period, the two year period shall
be deemed to be those 24 months occurring immediately
prior to the violation occurrence date for which the 30 day
suspension is sought.
App. 33
(2) In the event one (1) or more violations occur within a
two (2) year period from the date of the last violation
occurrence date from which the conviction resulted in a
thirty (30) day suspension pursuant to subsection (b)(1),
but not including any time during which the license was
effectively suspended, and a conviction results from one (1)
or more of the violations, the City Manager or his designee
shall, upon the date of the latest conviction, provide notice
to the licensee that the license shall be suspended for a
period of ninety (90) days unless good cause is shown in
accordance with this Article that the violation has not
occurred.
(3) In the event one (1) or more violations occur within a
two (2) year period from the date of the last violation
occurrence date from which the conviction resulted in a
ninety (90) day suspension pursuant to subsection (b)(2),
but not including any time during which the license was
effectively suspended, and a conviction results from one (1)
or more of the violations, the City Manager or his designee
shall, upon the date of the latest conviction, provide notice
to the licensee that the license shall be suspended for a
period of One Hundred Eighty (180) days unless good
cause is shown in accordance with this Article that the
violation has not occurred.
(c) Revocation. The City Manager or his designee shall
revoke a license when he or his designee determines that
any one (1) of the following has occurred.
(1) There has been one (1) or more violations that have
occurred within a two (2) year period from the date the
last violation occurrence date from which the conviction
resulted in a One Hundred Eighty (180) day suspension
pursuant to (cX3), but not including any time during
App. 34
which the license was effectively suspended, and a convic-
tion results from one (1) or more of the violations, the City
Manager or his designee shall, upon the date of the latest
conviction, provide notice to the licensee that the license
shall be revoked unless good cause is shown in accordance
with this Part that the violation has not occurred.
(2) The licensee or any person on its or his behalf or any
person listed on the application pursuant to Section 14-
80(b) of this Article, gave false or misleading information
in the material submitted during the application process.
(3) The licensee or any person on its or his behalf or any
person listed on the application pursuant to Section 14-
80(b) of this Article has knowingly allowed possession, use,
or sale of controlled substances on the premises of the
establishment or business or when with a customer.
(4) The licensee or any person on its or his behalf or any
person listed on the application pursuant to Section 14-
80(b) of this Article has knowingly allowed prostitution on
the premises of the establishment or business or when
with a customer.
(5) The licensee or any person on its or his behalf or any
person listed on the application pursuant to Section 14-
80(b) of this Article knowingly operated the adult enter-
tainment establishment or sexually oriented business
during a period when the licensee’s license was suspended.
(6) Except in the case of an adult motel, the licensee or
any person on its or his behalf or any person listed on the
application pursuant to Section 14-80 of this Article has
knowingly allowed any specified sexual activities to occur
on the premises of the establishment or business.
App. 35
(d) Effective dates of suspensions and revocations.
Except as otherwise provided in this Article, all periods of
suspension and revocation shall become effective 15 days
after the City Manager or his designee posts the notice of
suspension or revocation at the licensee’s establishment,
or on the date that the licensee turns in his, her or its
license, whichever happens first. The suspension or
revocation shall be abated in the event that the licensee
files a timely challenge to the suspension or revocation in
accordance with the procedures set forth in this Article or
upon order of a court of competent jurisdiction. If an adult
entertainment establishment or sexually oriented business
license is revoked, the licensee shall not be issued another
adult entertainment establishment or sexuaily oriented
business license for a period of two years running from the
date the revocation actually takes effect after all abate-
ment periods have lapsed.
(e) Other remedies. Notwithstanding the provisions of
this Section, the City may pursue any and all other avail-
able remedies through any and all other available proc-
esses and procedures available to correct violations of City
codes. Included within such remedies are the enforcement
actions set forth in this Article, actions in a court of
competent jurisdiction for injunctive or other appropriate
relief, criminal prosecution, code enforcement proceedings,
the issuance of citations, the suspension or revocation of
permits relating to health or safety matters, and any and
all other remedies available under the laws of the State of
Florida and the United States.
(Ord. No. 99-934, § I, 6-7-99)
App. 36
APPENDIX F
Sec. 14-93. Suspension and revocation proceedings.
(a) Challenge to suspension or revocation. If the City
Manager or his designee notifies a licensee in writing of
the pending suspension or revocation of a license as
provided in Section 14-92 of this Article, then the suspen-
sion or revocation shall become final and effective fifteen
(15) days after mailing to the licensee’s record address,
posting at the licensed establishment, or actual delivery of
the notice to the licensee, unless the licensee first files
with the City Manager or his designee a written response
stating the reasons why the suspension or revocation is
alleged to be in error or inappropriate and a written notice
of intent to challenge the suspension or revocation re-
questing a hearing to determine whether the suspension
or revocation will become effective. The suspension or
revocation shall be abated in the event that a licensee files
a timely challenge to the suspension or revocation in
accordance with the procedures of this Article or upon an
order of a court of competent jurisdiction. A suspension or
revocation already in effect, but not previously challenged
in a suspension or revocation hearing, may be challenged
in the same manner but is not abated during the proceed-
ings.
(b) Hearing on suspension or revocation. When a licensee
files a written response and notice of intent to challenge a
pending or existing suspension or revocation then a public
hearing to determine if the pending suspension or revoca-
tion will become effective and final shall be held by the
City Commission. The City Manager or his designee shall
notify the City Attorney and any appropriate City offices
who shall schedule and provide notice of the hearing date
and time.
App. 37
(1) The suspension or revocation hearing shall be held
within thirty (30) days of the City Manager’s receipt of a
written challenge and request for a hearing by the ag-
grieved licensee.
(2) The participants before the City Commission shall be
the licensee, any witnesses of the licensee, the City Man-
ager or his designee and any witnesses of the City Man-
ager or his designee. All witnesses shall provide their legal
name, mailing addresses and telephone number.
(3) The procedures used shall be those typically used in a
civil case with the City Manager or his designee having
the burden of proof by preponderance of the evidence.
(4) Testimony and evidence may be submitted by any
witness but shall be limited to matters directly relating to
the grounds for suspension or revocation. Irrelevant,
immaterial, or unduly repetitious testimony or evidence
shall be excluded.
(5) All testimony shall be under oath. The City Commis-
sion shall decide all questions of procedure and standing.
Unless otherwise mutually agreed to between the licensee
and the City Manager or his designee, the order of presen-
tation of testimony and evidence shall be as follows:
a. The City Manager or his designee and any witnesses
of the City Manager or his designee.
b. The licensee and any witnesses of the licensee.
c. Rebuttal witnesses from the City Manager or his
designee.
d. Rebuttal witnesses from the licensee.
e. Summation by the City Ma.azer or his designee.
App. 38
f. Summation by the licensee.
(6) The City Commission may also call and question
witnesses or request additional evidence as the City
Commission deems necessary and appropriate.
(7) To the maximum extent practicable, the hearing shall
be informal. Reasonable cross examination of witnesses
shall be permitted, but questioning shall be confined as
closely as possible to the scope of direct testimony.
(8) If the City Commission comes to believe that any
facts, claims, or allegations necessitate additional review
or response by either the licensee or the City Manager or
his designee, then the City Commission may order the
hearing continued until an announced date certain, not to
exceed thirty (30) days from the date of continuance. The
City Commission shall render a final decision on the
appeal within sixty (60) days of the City Manager’s receipt
of licensee’s written notice of challenge.
(9) The City Commission shall render a written decision
determining whether the suspension or revocation will
become or remain effective at the conclusion of the hearing
at which the appeal is decided or as soon as practicable
thereafter.
(c) Filing of decision. The original of the written decision
of the City Commission shall be filed with the City Clerk
and copies shall be delivered or mailed to the licensee, the
City Manager or his designee and the City Police Depart-
ment.
(d) Judicial Review. Any person who participated in a
suspension or revocation hearing before the City Commis-
sion and who is aggrieved by the decision of the City
Commission may immediately challenge the decision in
App. 39
any court of competent jurisdiction pursuant to the Rules
of Procedure of that court. The record of the hearing shall
consist of the complete record of the proceedings before the
City Commission. The City Commission’s decision shall be
promptly reviewed by the court.
(e) Requirement of exhaustion procedures. Judicial
review of a suspension or revocation, or related hearing or
appeal proceedings, shall be available only after the
administrative procedures and remedies set forth in this
Section have been exhausted.
(f) Notice of final suspension or revocation. If no response
or request for a suspension or revocation hearing is filed
within 15 days of the notice of a pending suspension or
revocation, or if the licensee who requested the hearing
does not appear at the suspension or revocation hearing —
after notice, or if the City Commission decides after a
hearing that a pending suspension or revocation will
become final, then the City Manager or his designee shall
issue to the licensee notice of final suspension or revoca-
tion of the adult entertainment license and mail or ar-
range delivery of the notice to the licensee's record
address.
(g) Effective date of suspension or revocation. The suspen-
sion or revocation of a license shall take effect the day
after delivery of a notice of final suspension or revocation
to the licensee in person, by posting on the licensed estab-
lishment, or by mail to the licensee’s record address, or on
the date the licensee surrenders the license, whichever
happens first. The licensee shall immediately return and
surrender a revoked license to the City Manager or his
App. 40
designee or surrender the revoked license, upon demand,
to a member of the Police Department.
(Ord. No. 99-934, § I, 6-7-99)
App. 41
APPENDIX G
IN THE CIRCUIT COURT
EIGHTEENTH JUDICIAL CIRCUIT
SEMINOLE COUNTY, FLORIDA
SEMINOLE ENTERTAINMENT, INC.,
d/b/a RACHELS,
Petitioner, . CASE NO.: 0123AP
v.
CITY OF CASSELBERRY, FLORIDA,
Respondent.
SEMINOLE ENTERTAINMENT, INC.’S
COMPLAINT/PETITION FOR WRIT OF CERTIORARI
DIRECTED TO THE CITY OF CASSELBERRY
TO: HONORABLE JUDGES
CIRCUIT COURT
EIGHTEENTH JUDICIAL CIRCUIT
301 N. PARK AVENUE
SANFORD, FLORIDA 32771
The Petitioner, SEMINOLE ENTERTAINMENT,
INC., through its undersigned legal counsel, respectfully
petitions this Court pursuant to Fla.R.Civ.P. 1.630, to issue
a Writ of Common Law Certiorari to review the decision of
the Casselberry City Commission (hereinafter “the city” or
“the commission”) revoking Seminole Entertainment, Inc.’s
(hereinafter “Rachel’s” or “Seminole Entertainment, Inc.”)
adult entertainment license.
App. 42
I
BASIS FOR INVOKING JURISDICTION
This Court has jurisdiction to issue a Writ of Common
Law Certiorari pursuant to Article V, Section 5(b), Fla.
Const. and Fla.R.Civ.P. 1.630. The city’s revocation order
(and the underlying process) constitutes a clear departure
from the essential requirements of law and is constitu-
tionally infirm. Haines City Community Development v.
Heggs, 658 So.2d 523 (Fla. 1995); Tomeu v. Palm Beach
County, 430 So. 2d 601 (Fla. 4th DCA 1983); Article I,
Sections 2, 4 and 9, Florida Constitution.
II
RELIEF SOUGHT
The petitioner would request the following relief from
the court:
A. That the court issue an order directed to the City
of Casselberry to show cause why the petitioner’s com-
plaint should not be granted;
B. That Seminole Entertainment, Inc. be allowed a
reasonable period of time to file a reply to any response
submitted by the city;
C. A final order — writ of certiorari directed to the
city vacating or requiring the city to vacate its order
revoking Seminole Entertainment, Inc.’s adult entertain-
ment license.
'
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App. 43
III
APPENDIX DOCUMENTS
In support of its petition, Seminole Entertainment,
Inc., is submitting under separate cover the following
materials:
App.A Casselberry Code of Ordinances, Article
III, Sections 14-66 through 14-114
App. B Notice of Revocation dated November 10,
2000 and Amended Notice
App. C Challenges to Revocation dated Novem-
ber 21, 2000
App. D Motion to Disqualify
App. E Supplemental Motion to Disqualify
App. F Resolution #95-19 reference ex parte
communications, City of Casselberry
App. G On-Line Excerpt from The Orlando Sen-
tinel, published November 5, 2000
App. H Political Advertisement for the Re-
Election Campaign of Bruce Pronovost
App.I Transcript dated April 7, 1997, “Public
Hearing II. Second and Final Reading of
Ordinance 97-884”
App. J Deposition Transcript of Deponent Bruce
Pronovost dated August 17, 1998
App. K Deposition Transcript of Deponent Jack
Schluckebier dated August 17, 1998
App. L Deposition Transcript of Deponent Jack
Schluckebier dated May 28, 1997
App. 44
App. M Article published in the Orlando Senti-
App. N
App. O
App. V
nel titled “Casselberry official wore wire
in probe of club owner”
Deposition Transcript of Deponent David
Henson dated September 23, 1997
Transcript dated December 14, 2000,
“Motion to Disqualify, Motion to Con-
tinue and Challenge to Revocation”
Transcript dated December 27, 2000,
“Hearing on Rachel’s Challenge to Revo-
cation of License”
Transcript dated December 28, 2000,
“Hearing on Rachel’s Challenge to Revo-
cation of License”
Transcript dated January 9, 2001, “Hear-
ing on Rachel’s Challenge to Revocation
of License”
Transcript dated January 16, 2001,
“Hearing on Rachel’s Challenge to Revo-
cation of License”
Notice of Final Revocation of Adult En-
tertainment License
Letters to City Commission urging revo-
cation of Rachel’s adult entertainment li-
cense
Index to Rachel’s License Hearing Exhib-
its
App. W Application for Adult Entertainment Li-
cense and Adult Entertainment License
App. X Affidavit for Arrest. Warrants (Hearing
App. Y
Exhibit 8)
Credit Card Receipts
App. 45
IV
STATEMENT OF THE FACTS
On November 10, 2000, the city of Casselberry, through its
city manager, served Seminole Entertainment, Inc. with a
notice of revocation of its adult entertainment license. The
notice is generic in nature and rather than specifying the
specific criminal acts which formed the basis for same, it
simply regurgitates stock language from the city’s adult
entertainment code. For a copy of the code, see Appendix
(hereinafter “App.”) A, §14-92(c) 3, 4, and 6. The notice
reads in part:
1. The city manager has determined that the licen-
see or a person on its behalf or a person listed on the
application pursuant to Section 14-80(b) of this article has
knowingly’ allowed possession, use, or sale of controlled
substances on the premises of the establishment or busi-
ness or when with a customer.
2. The city manager has determined that the licen-
see or a person on its behalf or a person listed on the
application pursuant to Section 14-80(b) of this article has
' One of Rachel’s challenges is that the city code allows an adult
entertainment license to be revoked if a worker at the establishment
“knowingly” allows certain criminal acts to occur — even though there is
a lack of actual knowledge or, at a minimums, culpable negligence on
the part of the licensee. The court will note in reviewing the application
(App. W) that Rachel’s ownership is required to list every worker at the
establishment including entertainers. Under the verbiage used in the
city code, if one of these dancers “knowingly” allows the commission of a
criminal act, Rachel’s license can be revoked. On this ground alone, the
city code denies due process and constitutes an unlawful prior restraint.
App. 46
knowingly allowed prostitution on the premises of the
establishment or business or when with a customer.
3. Except in the case of an adult motel, the licensee
or any person on its or his behalf or any person listed on
the application pursuant to Section 14-80 of this article
has knowingly allowed any specified sexual activities to
occur on the premises of the establishment or business.
See App. A (Emphasis added).
The city amended its notice of revocation making
some technical changes including changing the date that
Rachel’s had its license renewed from October 1, 1999 to
October 1, 2000. See App. B. Rachel’s filed a letter chal-
lenging same. See App. C.
Rather than appointing an independent hearing
officer to hear the allegations against Rachel’s, Cassel-
berry’s adult code provides that the city commission
presides over revocation proceedings.” Because of the
political posture and tenor of these proceedings, as well as
evidence of bias on the part of the Casselberry officials,
Seminole Entertainment, Inc. had a well-founded fear that
it would not be treated fairly by the city commission. As
such, a sworn motion to disqualify the commission was
filed. See App. D. Thereafter, Rachel’s filed a supplement
to its motion to disqualify. See App. E.
As presented at the December 14, 2000 hearing, the
evidence and sworn testimony supporting the motion
* These proceedings are quasi-judicial in nature and do not involve
any legislative function — thus, entitling Rachel’s to due process of law.
6 il
App. 47
revealed the following. In an Orlando Sentinel article
which appeared on November 5, 2000, Casselberry’s mayor
made the following statements.”
However, the strip bars with all their money, and
corrupting influence, continue to negatively im-
pact our community. We should focus on improv-
ing our standards, ...
* * *
My vision of Casselberry is a community that has
redefined itself. By focusing on improving our
neighborhoods, we can encourage citizen partici-
pation and involvement. This redefinition in-
cludes shedding our past image of being the
adult entertainment capitol of Central Florida.
See App. G (Emphasis added).
It should be remembered that the mayor was em-
broiled in a contested election prior to the initiation of
revocation proceedings against Rachel’s (November 7, 2000
election). During this election, the mayor ran on a plat-
form involving “Strict enforcement of the illegal activities
going on inside the strip bars.” See App. H. Obviously, the
mayor’s advertisement presupposed that illegal activities
were occurring inside these so-called “strip bars.”
Additionally, the following statements appeared in
another advertisement/article that appeared on the
mayor’s campaign website.
* In this case not only did the mayor (a non-lawyer) preside over
the proceedings, but pursuant to a vote of the city commission, he ruled
upon all legal objections raised by Rachel’s — the overwhelming
percentage of same were overruled.
App. 48
And, of course, there was the ongoing battle over
adult entertainment. Clubs proliferated. All-
night bars have become a draw. The city had de-
veloped a reputation as Central Florida’s hot spot
for nude dancing. The city took it on the chin.
* * *
Elected officiais have brought adult entertain-
ment under control. Strong leadership provides
the framework for such a turn around. Cassel-
berry mayor Bruce Pronovost has delivered that
leadership.
See App. H.
Rachel’s also tendered a transcript from an April 7,
1997 hearing showing the historical and political antago-
nism between Rachel’s ownership, the mayor and city
politicos. At that hearing, the mayor made the following
statements.
Well, I'll tell you who came to me originally. It
was a man by the name of Jim Veigle. Jim
Veigle was, I don’t know what the correct legal
term is, but he’s certainly the controlling person
over at Puzzles, also the controlling person over
at Rachel’s, the adult entertainment. The ques-
tion that was raised here tonight was also very
important with respect to adult entertainment, is
community standards. It’s obvious that if this or-
dinance was approved either by this city commis-
sion, or if put before the vote of the city of
Casselberry, this would certainly lower the city of
Casselberrys community standards. And what
does that mean? What is our community stan-
dards mean? Well I dare say that if our commu-
nity standards are in fact lowered, then it will be
open season in the city of Casselberry. I have to
App. 49
also take a look and prior to this whole is-
sue coming before us, our own police had
an investigation. In that investigation‘ that
started out at Puzzles and spilled over into
Rachel’s, there are arrests made and there
are signed affidavits that talk about a num-
ber of different things. The proliferation of
drugs. High level staff at the establishments
getting involved. Talking about under-aged,
forced under-aged drinking, talking about
forced prostitution, and the question I always
have to keep coming back is how is this good pub-
lic policy to establish a precedent and a monopoly
for two former all-night clubs?
* * *
I’ve said it before, the strategy has been to
confuse, to intimidate, to divide and to con-
quer. I’m not confused. I will not be intimidated.
I do believe that the city of Casselberry will come
together and not be divided, and the city of Cas-
selberry will not be conquered.
See App. I. (Emphasis added).
In an August 17, 1998 deposition in the case of State v.
Wisenthal, et al., the mayor refused to answer whether he
had made public statements regarding forced prostitution
at Rachel’s.
Q. Well, have you not made public statements
that there’s forced prostitution going on at
Rachel’s?
‘ This “investigation” was also a subject of discussion during the
instant revocation proceedings. See pp. 27-31, infra.
App. 50
A. I don’t recall.
See App. J at 16.
The mayor ultimately conceded that he had read
reports regarding alleged criminal activity at Rachel’s.
Q. Anyway, the affidavits that you reviewed, did
the affidavits — the signed affidavits include
allegations of under-aged drinking and forced
prostitution?
A. I do recall some discussion about under-aged
drinking and specifically that girls could not
refuse drinks.
Q. Did you specifically see any information re-
garding forced prostitution.
A. I don’t recall.
Q. How about any information regarding prolif-
eration of drugs at Rachel’s or any other es-
tablishment?
A. Yes.
App. J at 17. See also, page 27 (Emphasis added).
The mayor was also approached by Florida state
legislator Bob Starks reference closing down the adult
clubs in Casselberry.
A. Bob Starks is an elected official and I’ve
talked to him on various issues.
Q. Has he ever asked about closing down the
adult entertainment establishments in Cassel-
berry?
MOORE RR ee Paro
A. Yes.
App. 51
* * *
Q. What did he ask you about adult entertain-
ment in Casselberry?
A. He’s asked me what are we doing about, you
know, the seediness of 17-92, something to
that effect.
App. J at 30.
In its sworn motion, Rachel’s also alleged that the city
manager had discussions with the city commission about
issues involving adult entertainment and criminal investi-
gations involving Rachel’s.
Q. Have you discussed adult entertainmert is-
sues with any of the commissioners individu-
ally?
A. Im sure I have.
Q. Which commissioner?
A. Probably all of them.
App. K at 32. See motion to disqualify and discussion
infra at pp. 27-31.
Per Casselberry’s adult code, the city manager was
the individual charged with the responsibility to prosecute
Rachel’s for the alleged revocation violations. Therefore, it
is pertinent to note that the city manager’s relationship
with two of Rachel’s principal owners had become so
hostile that he no longer spoke with either one of them.
Q. How would you describe your relationship
with Jim and Charlie Veigle?
App. 52
A. I think it was fine until they leveled some al-
legations at me and I haven't really spoken
with either one since that I know of, ...
App. K at 39.
Similarly, it was alleged that in 1997 the city manager
had “[vJerbally informed every member of the Casselberry
City Commission that there was an investigation into
illegal activities at Rachel’s.” See App. D. Support for this
assertion is also found in the sworn deposition testimony
of the city manager in Time Traveler’s Inc. v. City of
Casselberry. This issue was also discussed at the revoca-
tion hearing, infra at 27-31.
The sworn motion also provided that the city manager
had “on one or more occasions advised and/or sought to
influence one or more Casselberry city commissioners on
the very matter [revocation of license] to be addressed in
this proceeding”. See App. D.
The motion to disqualify also asserted that Commis-
sioner David Henson (who also holds the post of vice-
mayor) participated in an undercover investigation con-
ducted by the police to collect evidence against one or more
principals of Seminole Entertainment, Inc.
To further buttress its claim that Seminole Enter-
tainment, Inc. had a reasonable fear of bias, consider the
following:
Commissioner Henson has had a number of con-
versations with people regarding alleged drug
use and prostitution at Rachel’s. These conversa-
tions include Lieutenant Joey Mulson of the
Casselberry Police Department. Commissioner
Henson also spoke with the city manager and he
overheard comments made by mayor Pronovost.
App. 53
Commissioner Henson has also testified that Mr.
Larry Wilder has witnessed sex acts at Rachel’s.
Additionally, Commissioner Henson has testified
that his wife had witnessed illegal drug use at
Rachel’s and that he passed this information on
to the city manager with a request to “check it
out”. He also questioned the city manager as to
whether “we” were monitoring alleged sexual ac-
tivity in limousine owned by Rachel’s. These
statements by Commissioner Henson and other
testimony by him occurred during a deposition on
September 23, 1997 in a case styled Time Travel-
ers v. City of Casselberry.
See App. D.
Later it was confirmed in an Orlando Sentinel article
that Commissioner Henson wore a hidden microphone in
an attempt to prosecute one of Seminole Entertainment,
Inc.’s principal owners.
One of the city commissioners who will rule
whether to shut down Rachel’s nightclub because
of allegations of prostitution, drug use and
money laundering once wore a hidden micro-
phone in an attempt to catch the club’s principal
owner in a bribery attempt.
Commissioner David Henson acknowledged Fri-
day that he served as a confidential informant
for the City, County Investigative Bureau — the
vice squad in Seminole County — during the 1996
investigation.
See App. M (Emphasis added).
A hearing on Rachel’s motion to disqualify was held
before the City Commission on December 14, 2000. App.
O. The commission denied the motion with three of the
App. 54
commissioners denying that they were biased against
Rachel’s. See App. O at p. 38. However, interestingly
enough, Commissioner Clark made a statement expressing
disapproval that Rachel’s was attempting to disqualify the
commission. “[A]nd it perhaps should have been done
much earlier, rather than being more concerned about
disqualifying us.” See App. O at p. 17.
Despite the commissioners assertions that they could
be fair, Rachel’s request to question the commissioners
regarding their knowledge of the case and potential bias
was denied. See App. O at p. 21.
Rachel’s moved to dismiss the charging document (the
notice of revocation) because it merely referenced the code
provisions that Rachel’s allegedly violated — it did not
provide any specifics that would allow Rachel’s to properly
defend and prepare itself for trial.
In other words, we are here with a certain degree
of history, but absolutely no idea what specific
acts we're being charged with. This is not a pro-
ceeding where there is some sort of discovery
that’s permitted under the ordinance code of the
city of Casselberry.
In other words, we don’t have an opportunity to
take pretrial depositions and pursue other mat-
ters that can result in clarification.
So here we are on the day of the hearing. It’s
impossible to prepare, because we don’t know
what we're defending against, other than some
vague generalities.
Somebody at sometime, somewhere, did some-
thing wrong, and one of our — somebody who can
EC
App. 55
be deemed to be, the corporation, Seminole En-
tertainment, Incorporated, is to be held responsi-
ble for that. That’s all we know. That’s
constitutionally just insufficient.
App. O at pp. 9-10 (Emphasis added).
The motion to dismiss was denied. See App. O at p.
19.
Prior to the hearing, Rachel’s expressed concern that
it could not cross examine the city’s documents and that
the city manager refused to provide a witness list or
disclose the evidence to be offered against Rachel’s.
Mr. Thomas’: I spoke on the telephone with Mr.
Kahn.° This was not done in writing. And Mr.
Kahn, I believe, would acknowledge and correct
me, but the conversation is, essentially, “I’m not
trying to be coy, but I intend to use some, per-
haps, depositions, perhaps some other tran-
scripts.” I believe he may have referenced some
sort of other documentary evidence. Kahn, “but
without meaning to be coy, I’m not going to tell
you who my witnesses are, because I don’t
have to. I don’t have to list my documents
for you.”
App. O at pp. 48-49 (Emphasis added).
Rachel’s motion to continue was denied. App. O at p.
51. In lieu thereof, the commission gave Rachel’s one hour
* Mr. Thomas and Mr. Sheppard represented Rachel’s at the
hearing.
* Mr. Kahn was the attorney representing the city manager who
prosecuted the case.
App. 56
to review the initial documents prior to the commence-
ment of the hearing. Various objections were levied
against the exhibits including that much of it was hearsay
and was not germane to the proceedings.
Testimony of Michael J. Laney/Revocation Hearing
Mr. Laney is employed with the Seminole County
Sheriff’s Office. He was the assigned case agent in the
investigation involving Rachel’s. Laney first went under-
cover in January, 2000, and the investigation lasted six
months. App. O at p. 77.His testimony included an expla-
nation of Exhibit 8-a 200+ page affidavit’. Counsel for
Rachel’s objected to Laney’s testimony because he was
merely providing legal conclusions that certain individuals
(acting on behalf of the licensee) “knowingly” allowed
specified sexual activities to occur on the premises. At this
point the commission voted to allow the mayor to hear and
rule upon any objections. Apparently, in response to
Rachel’s objections, Commissioner Clark stated, “'t’s going
to be real difficult for me to sit here and let him say
anything, but Ill agree to that” App. O at p. 79. Mayor
Pronovost overruled Rachel’s objections. App. O at p. 81.
Laney stated that he saw Julie Meyers dance for two
unknown persons and state “that feels good.” Later he saw
her pull her undergarments back under her dress and
show her vaginal area to Laney. App. O at p. 83. On
February 4, 2000, Laney stated that a dancer simulated
” An overwhelming percentage of this affidavit has nothing to do
with the Casselberry nightclub. Further, it contains numerous refer-
ences to hearsay statements.
App. 57
oral sex over a police officer’s groin area. He also testified
regarding oral sex between girls and a discussion of sex
shows in a limousine. Rachel’s objections that much of this
information was hearsay was overruled by the mayor.
App. O at p. 86.
While testifying regarding events that occurred in
April 2000, Laney preiaced his testimony by stating “I was
not present during this time,” and that he would “[rjead
you the information that I received.” App. O at p. 97
(Emphasis added). Rachel’s objected that this hearsay
evidence was inadmissible. The mayor overruled the
objection. App. O at pp. 97-99.
The city prosecutor, Michael Kahn, continually ques-
tioned Laney whether he knew that workers “knowingly”
allowed possession or sale of a controlled substances on
the premises. Objections were raised that Kahn was
asking for a legal conclusion and there was an insufficient
predicate for Laney to give such an opinion. App. O at. p.
103. The mayor summarily dispatched with the objection.
Okay. That takes us now to the motion that we
heard just prior to our break — the objection, I
should I should say. And the objection was over-
ruled. So I will ask Mr. Kahn to go ahead and
continue.
App. O at p. 109.
seo W aS ETN,
App. 58
Mr. Laney described drug transaction(s) that occurred
at the nightclub, specifically the purchase of Ecstasy from
Julie Myers’.
At page 111 of the transcript, the city asked Laney
about conversations involving another agent and individu-
als at the club. Again, a hearsay objection was raised, and
again it was overruled.
Mr. Thomas: May I object to the gratuitous
hearsay comments?
* * *
Mr. Thomas: Again, just to make my hear-
say objection.
* * *
Mayor Pronovost: We'll allow the testimony.
App. O at p. 112.
After the objection was overruled, Laney regurgitated
the hearsay evidence contained in the affidavit referenced
at paragraphs 162 and 171.
Clearly, Commissioner Henson was listening atten-
tively and wanted to make certain that the city presented
a good case to revoke the license. Vice-mayor Henson made
a number of interesting comments as it pertains to the
admission of a credit card receipt.
Mr. Henson: So let’s make sure we get all
our ducks in a row. I’ve seen a
* Again, much of this tracks the affidavit which was admitted into
evidence. For a discussion of this document, see page 37, infra.
es
App. 59
copy bandied about. It doesn’t ap-
pear to be an original credit card
receipt.
* * *
Mr. Henson: Let’s make sure we understand
what we're doing.
Mr. Kahn: _ I understand.
App. O at p. 119 (Emphasis added).
At that point, the hearing was adjourned. App. O at
pp. 119-120.
December 27, 2000 Hearing - Continuation
On December 27, 2000 the hearing was reconvened
and Laney’ testimony resumed. Laney described an
instance where he saw two females, Ms. Meyers and Ms.
Lethig, engage in oral sex with one another. App. P at pp.
26-27. Again, Laney was asked to tell the commission
what several individuals had told him, including Robert
Rexroad and Frank Otero. When the hearsay objection
was raised, the mayor asked for guidance from city attor-
ney Donna McInvosh.
Mayor Pronovost: Any direction, madam attor-
ney?
Ms. McIntosh: No. Other than it appears that
he was — he didn’t really tell us
what he said he was just telling
us. Of course, the conduct could
be an admission against inter-
est as a manager of this facility.
App. P at p. 30.
App. 60
The mayor overruled Rachel’s objection. App. P at p.
31.
Darin Terry and Robert Rexroad both identified
themselves to Laney as the general manager of Rachel’s.
Laney also met, Jim Mulrenin. Rachel’s objected that all of
this information was irrelevant and waived by the city
because it took the affirmative step of renewing Rachel’s
license in November, 2000 — after the alleged criminal
episodes. The objection was overruled. App. P at p. 34.
Hearsay after hearsay was admitted during these proceed-
ings, and the objections were continually overruled. App.
P at pp. 39-41.
To show how keenly Commissioner Henson was
interested in the proceedings, he asked several questions
of this witness.
Henson: I don’t want to assume anythir ,. i want
to make sure you're clear ari I under-
stand what you're talking about.
App. P at p. 48.
Cross Examination of Laney
On cross it was shown that the testimony regarding
illegal activity involving Jim Mulrenin did not occur in
Casselberry. These allegations stem from an investigation
of the Rachel’s in Orange County.
Q. Did you observe him engage in any of the ac-
tivities about which you’ve been testifying re-
lating to dope, prostitution or specified
sexual activity?
A. Not at that location.
App. 61
Q. So he has nothing to do with this particular
case other than he happened to walk through
the premises on one occasion?
(Objection omitted)
Q. Well, what did he have to do with this inves-
tigation as it relates to Rachel’s —
A. The —as far as Mr. Mulrenin is concerned?
Q. —Rachel’s on 436.
A. —ihad no contact with him. His involvement
was at the south location.
Q. Which is not even in Seminole County?
A. That’s correct.
App. P at pp. 49-50 (Emphasis added).°
Further, Laney never had any contact with the own-
ers/board members of Seminole Entertainment, Inc. —
Charles Veigle, James Veigle, Nancy Voegtlin or Robert
Kelley. App. P at pp. 50-52.
There were a total of six arrests for prostitution over
the course and scope of the six month investigation. App.
P at p. 53. When asked whether Laney had any informa-
tion to show that the owners of Seminole Entertainment,
Inc. had any knowledge of these activities, Laney refused
to answer the question
* The court will note when it reviews the 200+ page affidavit (App.
X) which the city relied upon to revoke Rachel’s license that an over-
whelming percentage of it does not involve the Casselberry Rachel’s.
ee i a ee wee
App. 62
That’s going to be part of an ongoing investiga-
tion, and I’m not going to answer that at this
time. |
App. P at pp. 53-54.
Rachel’s attorney moved for a continuance until the
investigation was completed so that he could adequately
confront the witness. Ms. McIntosh advised the mayor
that the questions to Laney exceeded the scope of direct
examination. Therefore, the mayor sustained the prosecu-
tor’s objection and permitted the witness not to answer the
questions. App. P at pp. 54-56.
Clearly, Rachel’s attorney, Mr. Sheppard, was dis-
tressed that the attorney for the city manager would make
an objection and then the attorney for the city commission
would come to his aid and advise the mayor to sustain it.
Mr. Sheppard: I want to object to getting double-
teamed here. Counsel for the city
manager makes an objection and
counsel for the board is arguing,
and I never have an opportunity
to respond. And that is denial of
due process in and of itself.
App. P at p. 56.
Rachel’s continued to object that there was no eviden-
tiary exception for a so-called ongoing criminal investiga-
tion” which would allow a witness to refuse to answer
*° A review of Chapter 90 of the Florida Statutes reveals that no
such evidentiary privilege exists in Florida law.
AN ah Rahat ae © POA SRI anc igi RAP RI 3 le ROW Dee licen OMT
App. 63
questions. The mayor continued to sustain the city prose-
cutor’s objections — limiting cross examination. App. P at
pp. 57-60.
Laney also refused to answer questions when asked if
any of the owners of Rachel’s had knowledge of drug
transactions occurring on the premises. App. P at pp. 60-
61. Once again, the commission’s attorney, Ms. McIntosh,
became an advocate for the prosecution, essentially telling
Laney he did not have to answer the question.
Mr. Sheppard: That isn’t what he answered. Is
your answer, none?
Ms. McIntosh: He’s not giving you any, and
that’s the answer.
* * *
Ms. McIntosh: No, But what he’s saying is that,
he’s not going to testify as to if
there’s any evidence.
App. P at pp. 61-62.
Again, Rachel’s objections were overruled by the
mayor.
When asked whether the owners had knowledge of
specified sexual activity, Laney again refused to answer
the question. Again, the mayor overruled the objection.
App. P at pp. 62-63. No one higher in the chain of com-
mand over Otero told Laney that Otero was in fact the
manager. App. P at p. 65. When asked whether Otero was
assisting law enforcement, Laney again refused to answer
asserting the so-called ongoing criminal investigation
privilege — which does not exist in the Florida evidence
code. App. P at p. 66. Rachel’s request to require the
App. 64
witness to answer the question was overruled. The same
question was posed and the same response was given
regarding Mr. Rexroad. Again the mayor overruled the
objection. App. P at pp. 67-68.
Mr. Sheppard: Well, I guess my motion to
compel him to testify is denied.
Mayor Pronovost: Right.
App. P at p. 68.
The scenario continued to repeat itself with the
witness refusing to answer questions. App. P at p. 69.
Q. And then I'd ask the same question about
Jennifer Sue Lethig?
A. I refuse to answer that on the grounds of an
ongoing investigation.
Mr. Sheppard: Same Argument
Mayor Pronovost: Same ruling.
App. P at pp. 69-70.
The theme repeated itself with Mr. Mulrenin. App. P
at p. 73. ;
As for Julie Meyers, Laney could present no evidence
that she was acting on behalf of anyone other than herself.
Q. Do you have any evidence with respect to
paragraph 377, that Julie Meyers was acting
on behalf of anyone other than herself.
A. No sir; I don’t.
App. P at p. 74-75.
2
li MOE
ak abe TNS A IN SOO
App. 65
The city prosecutor raised an objection that the
answer called for a legal conclusion. Counsel rephrased
the question.
Q. Do you have any evidence that she acted on
behalf of anyone other than herself when she
made the transaction?
Mr. Kahn: Same objection.
Mr. Sheppard: It’s not what you opine. Just
do you have any evidence?
Mr: Kahn: Again, my objection is because
the phraseology that it calls
for a legal conclusion.
Mayor Pronovost: Objection is sustained”.
App. P at pp. 75-76.
The police never documented any involvement by the
owners of Rachel’s pertaining to the criminal allegations.
No owners were ever arrested. App. P at pp. 78-79. Of
greater importance, Laney conceded that to his knowledge
no one above Otero and Terry knew that they took a tip
involving prostitution.
Q. To your knowledge, did any one in the chain
of command above Otero and Terry know
that they took a tip providing you, I guess
with — .
" Perhaps it is not surprising that the mayor would overrule
Rachel’s objections but would sustain objections raised by the city.
Throughout the proceedings, Rachel’s objections were routinely
overruled. App. P at pp. 103, 124, 129, 135, 139 and 170.
App. 66
A. Not to my knowledge.
App. P at p. 83.
At the end of Rachel’s questioning, Commissioner
Henson once again questioned the witness. App. P at pp.
87-88.
Testimony of Christine Gigicos
Ms. Gigicos is a police officer assigned to the Metro-
politan Bureau of Investigation. She described sex acts
which occurred between two female dancers. App. P at pp.
125-126. Ms. Gigicos also related an incident involving the
purchase of drugs. App. P at p. 139. There was also a
discussion with Mr. Otero reference [sic] prostitution and
getting girls from Gigicos to engage in prostitution. Appar-
ently, Ms. Gigicos was pretending to be the head of an
escort service. App. P at p. 145.
Ms. Gigicos had no knowledge of any wrongdoing by
James Veigle, Charlie Veigle, Robert Kelley or Nancy
Voegtlin, and she had no idea if the owners knew about
the credit card transactions dealing with drugs. App. P at
pp. 217-218. She did provide some interesting testimony
regarding one of the managers, Janice Royce. On one
occasion, Agent Gigicos was informed by Darin Terry, a
doorman employed by Rachel’s, that he would be the “look-
our for Agent Gigicos and her associates while they re-
ceived a private performance in the VIP room at Rachel’s.
Mr. Terry was looking out for management, in particular
Janice Royce, as well as other customers and bouncers.
App. P at pp. 167-170, 201 and 215.
Ms. Gigicos testified that Janice Royce, the General
Manager of Rachel’s, terminated the employment of two
App. 67
day shift dancers upon finding out that the two had
engaged in oral sex in the establishment. App. P at p. 177.
Ms. Gigicos was also aware that Jim Mulrenin was fired
by the owners. App. P at p. 184. Ms. Gigicos did not know
that Jennifer Lethig was fired on March 9.
Otero apologized to Gigicos for not spending more
time with her — he was unable to do so because Janice
Royce was on duty. Ms. Royce was the manager over
Otero. App. P at p. 189. Agent Gigicos never witnessed
any acts of prostitution or drug transactions occur in the
presence of Janice Royce. Nor was Ms. Royce present
during any “sex shows.” App. P at p. 216.
Agent Gigicos interpreted statements by Rachel’s
employees that Ms. Royce was a “dragon lady” and a “hard
ass” to mean that Ms. Royce strictly enforced the rules as
to what the employees could and could not do. App. P at
pp. 216-217.
At the end of Gigico’s questioning, Commissioner
Henson once again had to question the witness. App. P at
p. 204-206. Clearly, Commissioner Henson was attempting
to prejudice the proceedings and “convict” Rachel’s.
Commissioner Henson: Eighteen visits, a ma-
jority — what I’m trying to get a sense of — of
the number of violations and how obvious
they were to you..
App. P at p. 206.
Commissioner Henson’s questions continued. App. P
at p. 208-210.
Commissioner Henson: So what you're saying,
its possible that for one event, for lack of a
App. 68
better term, there could be five violations or
ten violations per one event.
App. P at p. 209.”
Commissioner Henson again questioned the witness
regarding whether the manger, [sic] Janice Royce, could
see anything. App. P at p. 218-219.
Testimony of William Christensen
Mr. Christensen is employed as a police officer with
the city of Casselberry. App. P at pp. 221-222. He wit-
nessed two females, Melissa Zinkiewicz and Julie Meyers,
have oral sex and digitally penetrate each other. App. P at
p. 229. Ms. Meyers also attempted to unzip agent Laney’s
zipper during a private dance. Darin Terry offered to
provide a condom to Laney if he wanted to have sex with
Ms. Meyers. App. P at pp. 229-230. Mr. Christensen also
testified about a discussion with Robert Rexroad involving
a drug transaction. App. P at p. 247. He also stated that
Frank Otero used a flashlight to illuminate a straddle
dance that Sherry Allen performed for agent McGriff.
App. P at p. 244-245.
Although there was testimony that Rexroad or Otero
had knowledge of these acts, the testimony also revealed
that these incidents were not condoned by Rachel’s owner-
ship or management. For instance, Christensen stated
that none of these acts occurred in the presence of Jim or
Charles Veigle, Robert Kelley or Nancy Voegtlin. Further,
* It is worth repeating that Commissioner Henson previously wore
a “wire” in an attempt to have one or more of Rachel’s owners arrested.
Oe
App. 69
in all of the incidents he described, someone was acting as
a look-out — which reinforces the point that these events
were not sanctioned by Rachel’s.
Q. And, in fact, in all those instances someone
was up there lookin’ out for whomever, cor-
rect?
A. I'd have to refresh myself, but I would say
almost everyone. Yes.
App. P at p. 250.
The person they were watching for was Janice Royce,
the manager.
Q. And it was communicated to you that, in
part, the person they were lookin’ out for was
Janice Royce, correct?
A. I wouldn’t say on every incident, but on sev-
eral. Yes.
Q. And there was an attempt to conceal from
Ms. Royce what was occurring; would you
agree to that? That was your observation?
A. That’s what we were told. Yes.
©
Time and time again, correct?
>
I don’t know if I’d say time and time again,
but there were several times. Yes.
App. P at p. 250.
* * *
Q. Did that give you the impression that there
were acts occurring that were contrary to
what Miss Royce would allow?
A. Yes.
App. 70
Q. And whenever on occasion when Janice
Royce would come to the area where specified
sexual acts were occurring, those acts would
stop, wouldn’t they?
A. I can only say on two incidences [sic] do I re-
member that. But, yes.
App. P at p. 251.
As he did with the other witnesses, at the end of
Christensen’s testimony, Vice-mayor Henson had ques-
tions.
Commissioner Henson: And your knowledge of
Casselberry’s code are pasties in violation of
the code?
App. P at p. 255.
Commissioner Henson and the other commissioners
were in a hurry to finalize the revocation hearing.
Commissioner Henson: We're taking a lot more
time than I anticipated.
App. P at p. 259.
* * *
Commissioner Sheppard: You know, there’s an-
other fact here we have to consider. Those
we represent, the citizens are looking
for us to resolve this thing with some
sense of urgency. They don’t want it
drawn out.
App. P at p. 266. (Emphasis added).
* * *
App. 71
Commissioner Henson: I just don’t want to drag
this thing out to the next millennium.
App. P at p. 277.
December 28, 2000 Proceedings
On December 28, 2000, the city manager (the prosecu-
tor under the code), Jack Schluckebier, testified. App. Q at
p. 288. He serves at the pleasure of the city commission. In
other words, the city commission is his boss. App. Q at p.
318.
Schluckebier related that there had been undercover
investigations by both the city and a special task force
against Rachel’s over the past nine years.” App. Q at p.
290. He relayed that there was an investigation in the
Summer of 1996, and there was a monitoring event in
April 1998.“ Schluckebier relayed that an attorney for
Rachel’s had requested audio recorded tapes involving the
daily activity summary of officer Botechello (City of
Casselberry) between the dates of May 16, 1996 and
August 22, 1996. App. Q at p. 297. Schluckebier had
discussions with law enforcement regarding the status of
the “ongoing investigation” both before and after the
arrests at Rachel’s on July 20, 2000.”
’* This directly ties in to the city manager and the city commis-
sion’s animus toward Rachel’s ownership. See discussion, supra at 7-11.
“ None of this information was disclosed in advance of the hearing
and, more specifically, none of it was contained within the charging
document/notice of revocation — in either general or specific terms.
* This is the same ongoing investigation that Rachel’s was
‘foreclosed from cross examining witnesses about.
App. 72
The city manager then discussed the transcript of a
hearing held before Judge Kirkwood — an Orange County
Judge, Florida Ninth Judicial Circuit. App. Q at p. 301-
303. Schluckebier was then provided a copy of Exhibit 9,
the [Judge Kirkwood] transcript — even though it was not
moved into evidence. App. Q at pp. 304-305. In deciding to
revoke Rachel’s license, Schluckebier also relied upon a
revocation notice from the Division of Alcoholic Beverages
& Tobacco.” App. Q at p. 306. The city manager believed
that the evidence was sufficient to “[s]ecure convictions so
in [his] mind, the threshold of the standard that I was
using went beyond mere allegations.” App. Q at p. 307.
To further reinforce the illusory notion that Rachel’s
received due process, the city manager relayed that he
provided a copy of Exhibit 9 (the transcript of the hearing
held before Orange County Judge Kirkwood) to either
Mayor Pronovost or Commissioner Henson — even though
this exhibit was never moved into evidence and was not
made part of the record for this court’s review.
Q. And you don’t have the recollection of which
city commissioner you distributed what’s
been marked as exhibit 9, the transcript of
the hearing of the State of Florida, Office of
Attorney General, reference Rachel’s Men’s
Club et al., dated August 2, 2000?
* This document was likewise marked as an exhibit but was not
contained in the record of the proceedings.
” As stated in the body of this paper, no convictions were obtained
or tendered to the commission.
App. 73
A. I would be able to narrow it down to, I’m cer-
tain it was either mayor Pronovost or
Commissioner Henson, but I don’t remember
which one.
Q. But you feel it was one or the other?
A. Yes sir.
App. Q at pp. 313-344.
Mr. Schluckebier could not remember whether he
received this document from Mr. Kahn (the prosecutor) or
from another source. App. Q at pp. 316-317. He also had a
discussion with the mayor regarding newspaper articles
addressing what was “going on” at Rachel’s. App. Q at pp.
320-321 (Emphasis added).
A. Probably roughly in the same time as when
he was reading in the newspaper that people
were being arrested for illicit activities.
App. Q at p. 321.
When Rachel’s attempted to question the city man-
ager regarding the mayor’s views on Rachel’s and adult
entertainment as contained in his campaign materials, the
mayor sustained the prosecutor’s objection. App. Q at pp.
331-333. Schluckebier also recalled statements in a tran-
script containing quotes by the mayor involving conversa-
tions he had with Seminole County’s sheriff regarding
Rachel’s. The mayor expressed concern and alarm about
the arrests that occurred at Rachel’s and other establish-
ments. Further, the city manager briefed the mayor on the
‘undercover investigation that Rachel’s conducted by the
police officials. App. Q at pp. 339-340.
App. 74
Commissioner Henson also questioned Schluckebier in
the past about whether there was “abundant illegal
activity” at Rachel’s. App. Q at pp. 341-342. Schluckebier
(previously) informed the Casselberry City Commission of
the 1996 criminal investigation against Rachel’s. App. Q at
pp. 344-345. Apparently this is the same investigation that
he testified formed the basis (at least in part) for the revoca-
tion action against Rachel’s. See App. Q at pp. 290-295.
Schluckebier was aware that Commissioner Henson
had participated in an undercover investigation to collect
evidence in an attempt to prosecute one or more principals of
Seminole Entertainment. Schluckebier knew this because
Commissioner Henson told him so. App. Q at p. 346.
A. I knew that he had a discussion somewhere
along the way with someone at the county
level about — since he knew some of the peo-
ple involved at Rachel’s, and since he had in
the past been actually in attendance at Ra-
chel’s, would he agree to have a conversation
with the principals.
App. Q at p. 345.
Henson also told him about allegations regarding drug
use and prostitution at Rachel’s. App. Q at pp. 346-347.
When the city manager’s attorney objected to the question,
the mayor sustained the objection. App. Q at p. 348. When
asked whether Commissioner Henson had made state-
ments that his wife had witnessed illegal drug use at
Rachel’s, the mayor once again stepped in and sustained
an objection preventing disclosure. App. Q at p. 348. A
follow up question was asked whether Henson had asked
that this information be passed on to the city manager and
that he check it out. Once again, the mayor stepped in.
iii
App. 75
“Objection is sustained.” App. Q at pp. 348-349. In the
past, city police officers would take on extra duty assign-
ments at Rachel’s. App. Q at p. 357. In summation,
Schluckebier reaffirmed that he hai had discussions with
members of the city commission regarding (purported)
illegal activities at Rachel’s.
Q. Have you had any discussions with any other
members of the city commission with respect
to illegal activities at Rachel’s other than the
mayor and vice-mayor?
* * *
A. I think I - I’ve already affirmed statements
that you read today and I’m certainly aware
of those.
Are you aware of any others?
> ©
No sir. But I certainty might have had
some.
App. Q at p. 358 (Emphasis added),
Testimony of Cleveland Peters
The investigation against Rachel’s in Casselberry
started in March, 2000. App. Q at pp. 366-367. On two
occasions, Peters used his credit card to get cash and then
used the money to purchase drugs. The person involved in
this transaction was Robert Rexroad. App. Q at p. 368.
Through Rexroad, Peters would purchase drugs from
Carlos Sanchez.” App. Q at pp. 369-370. He left Rachel’s
‘* Mr. Sanchez is not employed by Rachel’s.
App. 76
and finalized the drug buy at a location in Orange County.
App. Q at p. 370. Rexroad told Peters that he was the
manager and the general manager. App. Q at p. 371.
There was one other drug buy that occurred on July 12,
2000 when he was able to obtain cash with his credit card.
App. Q at p. 372. It was during this time that Rexroad
said, “well, I don’t — I don’t actually sell the drugs.” App.
Q at p. 371. Rexroad explained that Rachel’s received ten
percent for “running the credit cards”. App. Q at p. 378.
Peters did not know what Rexroad meant by that.
On March 9, 2000, Peters was taken by limousine
from the Casselberry Rachel’s to the Orange County
Rachel’s. The girls had sex with each other in the back of
the limousine during the trip. App. Q at pp. 385-386. On
April 27, 2000, two females, Julie Meyers and Melissa
Zinkiewicz, had sex with one another upstairs at Rachel’s.
App. Q at p. 386. On each occasion, Peters paid the girls.
App. Q at p. 387. The managers on duty were Bobby
Rexroad and Frank Otero.
Peters was shown an easel and Commissioner Henson
suggested that they just hand the laser point to him
because “that might be helpful to him.” App. Q at p. 389.
The easel/diagram shows that there are stairs leading up
to the second floor at Rachel’s. Peters described the area in
[sic] following manner.
A. Okay. It would be over in this dark location,
in this area right in here. (Indicating). That
was the one on the second floor, was over in
that — they — they moved the chairs around.
App. Q at p. 389.
App. 77
Peters characterized Otero as a “low-level manager.”
App. Q at p. 398. Darin Terry was also considered lower
management. App. Q at p. 398.
Peters then discussed manager Janice Royce and her
reputation at the club.
Q. It appeared — the reputation was that she
appeared to be an enforcer?
A. They just said she was hard. They didn’t like
her.
App. Q at p. 400.
Manager Danny Beers had the same reputation.
Q. Well, you were told that he was a, “hard ass,”
were you not?
A. Shawn Smith said he didn’t like him; that he
was different.
App. Q at p. 400.
Peters has never witnessed any illegal activity on the
part of James Veigle, Charles Veigle, Robert Kelley or
Nancy Voegtlin. App. Q at p. 402. Peters does not even
know who these individuals are. When Rachel’s attorney
asked Peters whether they had any other evidence to tie the
company into the drug transactions, the mayor sustained the
prosecutor's objection. App. Q at p. 404. The only person
that he was aware of that had knowledge of the drug trans-
actions at the Casselberry club was Rexroad.
Q. That’s it, as far as your investigation re-
vealed?
A. Yes, sir.
App. 78
App. Q at p. 405.
As for Carlos Sanchez, he is not employed by Rachel’s.
He has his own company. App. Q at pp. 405-406.
At the conclusion of Peters’ testimony, Commissioner
Henson had a number of questions. App. Q at pp. 408-413
and 416-418. The following is a sampling of Commissioner
Henson’s questions.
Commissioner Henson: Did you witness viola-
tions of Casselberrys adult entertainment
ordinance —
* * *
Commissioner Henson: Were managers present
or — to your knowledge, did mangers observe
violations of the Casselberry adult enter-
tainment ordinance and were they in the
proximity of you when that occurred?
App. Q at p. 417-418.
After closing arguments, Commissioner Henson
wanted to know if he could reserve the right to request
additional evidence later after he had reviewed what was
available. App. Q at pp. 472-473.
January 9, 2001 Hearing/Commissioner
Henson’s Disqualification
On January 9, 2001 the city commission convened a
hearing on the Rachel’s case. At that time, vice-mayor
Henson stated that he was the one who had received a
copy of the hearing transcript (which was not moved into
evidence) which is identified as Exhibit 9 on the index. See
App. V. Henson explained that he had received this
App. 79
transcript prior to the revocation proceedings being
initiated. App. R at pp. 3-4. Although he disqualified
himself, he continued to maintain that he could be impar-
tial. App. R at p. 4.
It was also during this hearing that a number of
disclosures were made by the city commission. Several
letters were received by the commission. These letter [sic]
reflect in part the-following.
Dear Commissioners: It is my hope that the
City of Casselberry will do there best to rid
their city and out [sic] county of clubs such
as Rachel’s. It is demeaning to women and
insulting to Christian people.
* * *
As a private citizen of Seminole County I appreci-
ate what you're doing to combat the adult industry.
* * *
We have been following as have many other resi-
dents of Seminole County, the on-going proceedings
relating to the unsavory goings on at that club.
* * *
We feel that this club is a detriment to the city as
well as to the county. The citizens of Casselberry
and Seminole County are closely watching the
commission to see what transpires regarding this
issue.
App. U (Emphasis added).
App. 80
Commissioner Sheppard was also approached by
Reverend John Book in an attempt to encourage “[h]im
to vote in a measure that would, I think, restrict adult
entertainment.” App. R at p. 12. Commissioner Sheppard
thought that he was just saying “hello” to Mr. Book. “All I
thought we were doing was saying hello.” App. R at
p. 12. However, Reverend Book obviously thought
different.
Mr. Book: I never say hello on a subject like
this that I don’t try to influence.
App. R at p. 12.
Hearing January 16, 2001/Deliberations
On January 16, 2001 the city commission began its
deliberations. During same, the commission stated that
although the adult code states that the revocation need
only- be proven by a preponderance of the evidence, it
would change the standard to clear and convincing evi-
dence. Despite this assertion, there was never any state-
ment showing exactly what the commission meant by clear
and convincing evidence or whether they understood the
concept. It was equally clear that the city commission also
felt that Rachel’s should be “convicted” because, in the
commission’s “mind”, Rachel’s did not disprove the allega-
tions against it. The following quotes from two of the city
commissioners support this assertion.
Mr. Pronovost: We had half of that, a case presented
by the city manager, but the licen-
see chose to rest their case with-
out presenting any evidence to
substantiate their defense and
simply chose to rely on raising doubts
App. 81
on the evidence or the witnesses or
punch holes in the city manager’s
case.
App. S at p. 14.
* * *
Defense provided no evidence that
these were in fact rogue employees;
App. S at p. 23.
* * *
Ms. Hart: The sale and use of drugs, prostitu-
: tion, and sexual activities on the
premises were clearly evident and
not denied by Mr. Sheppard, Rachel’s
attorney.
* * *
In my opinion nothing was presented
into evidence to prove the owners had
no knowledge.
App. S at p. 9 (Emphasis added).
* * *
I don’t believe that enough evidence
was provided to me in support for
Rachel’s, .. .
App. S at p. 11 (Emphasis added).
General Summary of City’s 200+ page affidavit
A central focus of the revocation proceedings was a
231 page affidavit for arrest warrants. See App. X. It is
App. 82
replete with irrelevant and multiple hearsay statements —
all of which were not subject to cross examination by
Rachel’s.
Page 4 reflects that the Casselberry Police Depart-
ment was conducting an investigation of Rachel’s in 1996.
This is the same investigation which the Casselberry City
Commission was previously made aware of and which
supported (in part) Rachel’s motion for disqualification.
Pages 4 through 6 contain hearsay statements of Jason
Rarick who did not testify at the hearing. Furthermore,
Rachel’s was not put on notice of any of this information
since it was not referenced in the notice of revocation. An
additional hearsay statement of Jay Lewis appears at page
7 of the affidavit. Statements from Julie Meyers and
Jennifer Lethig are referenced at page 11. At page 32 the
affidavit states that a manager identified as Janice Royce
caught two day shift dancers engaging in oral sex upstairs
and “threw the dancers out of the business”.
Because this affidavit contains hearsay upon hearsay,
Rachel’s attorneys repeatedly objected to it. App. R at p.
439.
From pages 25 through 37 there is a typed version of
an audiotape (not subject to confrontation, review or
moved in to evidence) which references statements be-
tween two individuals discussing sex and a limousine
driver. However, none of these actions or discussions
occurred at Rachel’s.
Pages 37 through 42 discuss actions which occurred at
Rachel’s South in Orange County. At page 42 the affida-
vit references a discussion with an individual regarding a
drug transaction — but again, none of this occurred at
Rachel’s. Page 43 the affidavit references a telephone
—EESEE ——
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App. 83
discussion between a police agent and Julie Meyers — but
again, none of this occurs at Rachel’s.
At page 46, paragraph 170, Darin Terry references
that it is not his job to make the dancers dance on boxes, it
is really the manager’s job. At page 49, paragraph 187,
there is a hearsay statement from Frank Otero stating
that there is no upstairs at Rachel’s South “[s]o that kinda
eliminates that.””
Pages 49 through 52 involve incidents at Rachel’s
South in Orange County.
Page 52, paragraph 202, states that two agents
entered the business but there is no description of whether
it is Seminole or Orange County. Page 54 et seq. involve
activities and conversations which occurred at Rachel’s
South, Orange County. Page 57 references a hearsay
statement from agent Cynthia Sherman which again
references Rachel’s South, not Casselberry. Page 59
references telephone conversations that did not occur at
Rachel’s.
Page 60, paragraph 234, again references the Orange
County Rachel’s location — also known as Rachel’s South.
The discussions at page 61, paragraph 238, focus upon the
Orange County location. Page 61 through 68 reference
Rachel’s South-Orange County. Page 68 references
activity that occurred in a limousine and not on the
Rachel’s premises. At paragraph 276 there is a reference
that someone came into the upstairs area of Rachel’s
” The implication is that these activities had to be done in secret.
App. 84
North and the dancers stopped their sexual activity. One
of the dancers left and hid in the dancers’ dressing room.
Pages 71 through 73 reference incidents at Rachel’s
South. Page 73, paragraph 297, references events that
“ occurred in a limousine in Orange County, Florida. Pages
74 through 85, starting with paragraph 304, again discuss
Rachel’s South —- none of which is pertinent to the
revocation claims levied against the Casselberry Rachel’s.
Pages 88 through 103 reference the Orange County
Rachel’s. The bottom of page 99 the discussion focuses
upon a limousine ride which does not involve Rachel’s
Casselberry. Pages 109 through 111 reference the Orange
County Rachel’s.
At page 111, paragraph 399, Frank Otero made a
statement that Janice Royce is the “overall person in
charge.” Paragraph 399 references that former manager
Jim Mulrenin was fired.
Pages 112 through 117 reference Rachel’s South,
Orange County. Pages 117 through 120 reference events
that occurred in a limousine — not at the Casselberry
Rachel’s. Pages 120 through 121 discuss telephone conver-
sations. Pages 121 through 131 reference Rachel’s South,
Orange County. Pages 132 through 134 reference Orange
County and a limousine ride. Pages 134 through 140
reference a telephone conversation. Pages 140 through 142
reference a telephone conversation between agent Peters
and Bobby Rexroad of Rachel’s South. Pages 143 though
171 reference Rachel’s South, Orange County. Pages 171
through 193 reference Orange County, a limousine ride
and telephone conversations — again, none of which is
germane to the Casselberry proceedings.
App. 85
Pages 197 through 201 discuss a limousine ride where
Carlos Sanchez (not an employee of Rachel’s) arrived at
the Radisson Hotel and entered a limousine with agents
Peters and Sherman.
At page 204, paragraph 536, it is reported that two
dancers stopped what they were doing when they were
warned that “Janice Royce was in the area”... At page
204, paragraph 539, there is a reference that “(I]t should
be alright when Janice Royce leaves.” Pages 207 through
208 reference a telephone conversation to Darin Terry,
apparently at his home. At page 210, paragraph 568, there
is another reference to Janice Royce being downstairs in
the main stage area and, therefore, it was alright to
continue with the activities.
At paragraph 569 there is another reference to the
intolerance of Janice Royce to criminal activity.
Darin Terry stated, “Sit down, because when
you're standing there is guy over here with a girl
and he’s friends with her”, meaning the subject
was friends with Janice Royce.
Page 212 references a telephone call to Frank Otero’s
cellular telephone. At page 214 there is a reference to a
telephone call made to Carlos Sanchez’s cellular telephone.
Page 214-215 references Rachel’s South. Pages 216
through 225 reference a conversation that occurred in
Carlos Sanchez’s limousine. Mr. Sanchez is not an em-
ployee of Rachel’s. Page 225 to 226 references surveillance
of Carlos Sanchez. Pages 226 through 227 reference
Rachel’s Orange County.
Considering the irrelevant, highly prejudicial and
hearsay nature of this voluminous document, it never
should have been admitted into evidence during the
App. 86
revocation proceedings. On this ground alone, the revoca-
tion order should be set aside.
¥
LEGAL ARGUMENT
The petitioner should succeed on the merits for at
least the following reasons, to-wit:
a. Seminole Entertainment was denied its right to a
neutral, unbiased and detached fact finder as manifested
by the plethora of evidence that the Casselberry City
Commission was biased against “Rachel’s” and so-called
“adult entertainment” in general.
b. Sections 14-92 and 14-93, Casselberry City Code
and the Hearing process “afforded” the Plaintiff, denied
Seminole Entertainment Inc. substantive and procedural
due process as guaranteed by Article I, Section 9 of the
Florida Constitution.
c. The revocation was improperly and unlawfully
entered in that no evidence was tendered to the city
commission establishing that Seminole Entertainment,
Inc.’s ownership had actual knowledge or was culpably
negligent in failing to stop or deter the alleged criminal
improprieties which the city relied upon in revoking the
Plaintiff's adult entertainment license. Further, the code
unlawfully allows the revocation of an adult license based
upon the criminal activity of a worker without proving
complicity or actual knowledge of the licensee/owner.
d. The Casselberry City Code vests unbridled and
unfettered discretion with the city commission to deter-
mine whether a license should be revoked or suspended
Re
App. 87
based upon the same (alleged) criminal conduct. As such,
the City Code, Sections 14-92 and 14-93, and the City’s
revocation order constitute an unconstitutional prior
restraint in violation of Article 1, Section 4 of the Florida
Constitution.
e. The city relied upon the wrong (and de minimis)
standard of review specifically preponderance of the
evidence and further improperly and unlawfully shifted
the burden of proof to Seminole Entertainment, Inc. to
establish that its adult entertainment license should not
be permanently revoked.
f. The Casselberry Adult Entertainment Code does
not provide “prompt judicial review” when the city perma-
nently revokes an adult entertainment license nor does it
provide a “stay” or abatement of the license revocation
pending review and decisicn by the court.
Each of the foregoing will be argued separately below.
(a)
SEMINOLE ENTERTAINMENT WAS DENIED ITS
RIGHT TO A NEUTRAL, UNBIASED AND DE-
TACHED FACT FINDER
As reflected by the hearing transcripts and documents
filed with this court, Seminole Entertainment, Inc.’s adult
entertainment license was suspended by the Casselberry
City Commission after a quasi-judicial hearing. At the
outset one of the fatal flaws in this process was the city
commission’s determination to not only sit as the fact
finder in this case, but further its pre-determination to
revoke the Plaintiff’s license.
App. 88
Prior to the hearing, Seminole Entertainment, Inc.
filed a sworn motion to disqualify which set forth numer-
ous factual allegations and it further tendered a number of
documents supporting its claims that the mayor and the
Casselberry City Commission did not constitute a fair and
unbiased forum to litigate the revocation action. The
factual statements and assertions raised by Seminole
Entertainment, Inc. were legally sufficient and would
place a normal and reasonable person in fear of not receiv-
ing a fair hearing. Further, not only did the city commis-
sion ultimately deny the motion to disqualify but it
challenged the truth of the allegations by repeatedly
asserting (in a self-effacing manner) that it would be fair
and impartial. However, the two commissioners who
refused to address the allegations were vice-mayor Henson
and mayor Pronovost, who stood silent.
In support of the petitioner’s position that it was
denied its right to a neutral, unbiased and detached fact
finder, see Goldberg v. Kelly, 397 U.S. 254, 271 (1970)
(impartial decision maker essential to due process]; Ward
v. Monroeville, 409 U.S. 57 (1972) (due process violated
where mayor presided over traffic offenses and held
responsibility for village’s finances]. In Jennings v. Dade
County, 589 So.2d 1337 (Fla. 3rd DCA 1991), the court
held that due process was implicated based upon ex parte
communications with the Dade County Commission while
acting in a quasi-judicial capacity. Further, Judge Fergu-
son in concurring made the following instructive com-
ments.
Ex parte lobbying of an administrative body act-
ing quasi-judicially denies the parties a fair,
open, and impartial hearing. (Citation omitted)
Adherence to procedures which insure fairness
App. 89
“Is essential not only to the legal validity of the
administrative regulation, but also to the main-
tenance of public confidence in the value and
soundness of this important governmental proc-
ess.” (Citation omitted) The constitutional
compulsions which led to the establishment
of rules regarding the disqualification of
judges apply with equal force to every tri-
bunal exercising judicial or quasi-judicial
functions. 1 Am. Jur. 2d Administrative Law
§64, at 860 (1962); City of Tallahassee v. Florida
Pub. Serv. Comm’n, 441 So.2d 620 (Fla. 1983)
(standard used in disqualifying agency head is
same standard used in disqualifying judge), (re-
mainder of citations omitted).
Jennings at 1345 (Emphasis added).
See also, e.g., Cherry Communications, Inc. v. Deason,
652 So.2d 803, 805 (Fla. 1995) [in license revocation
proceedings an impartial decision maker is a basic con-
stituent of minimum due process]; Pelham v. School Board
of Wakulla County, 451 So.2d 1004 (Fla. 1st DCA 1984)
[ordering members of the school board disqualified from
participating in a hearing because Plaintiff showed a
“well-grounded fear that he will not receive a fair {hear-
ing] at the hands of the [respondent agency]”]; National
Labor Relations Board v. Phelps, 136 F.2d 562 (5th Cir.
1943) [finding “a fair triai by an unbiased and non-
partisan trier of facts is of the essence of the adjudicatory
process as well when the judging is done in an administra-
tive proceeding by an administrative functionary as when
it is done in court by a judge,” and that respondents had
been denied a fair trial due to the impartiality of the
examiner]; R. C. Wall v. American Optometric Ass’n, Inc.,
379 F.Supp. 175 (N.D. Ga. 1974) [finding that bias of
ee
App. 90
members of the board violated plaintiffs right to obtain a
fair hearing and the “role which the board must inevitably
play in the process is sufficient to infect the process with
substantial unfairness”]. See Livingston v. State, 441 So.2d
1083, 1085 (Fla. 1983) [when presented with a motion for
disqualification, “if predicated on grounds with a modicum
of reason, the judge against whom raised, should be
prompt to recuse himself. No judge under any circum-
stances is warranted in sitting in the trial of a cause
whose neutrality is shadowed or even questioned”]; Franco
v. State, ___ So.2d ___ (Fla. 4th DCA 2001) [2001 Fla.App.
Lexis 823] [court’s comments manifesting dislike of attor-
ney warranted disqualification]; Coucher v. Licht, 731
So.2d 835 (Fla. 5th DCA 1999) [writ of prohibition granted
where judge had prejudged the credibility of witnesses];
State ex rel. Allen v. Board of Public Instruction of Brow-
ard County, 214 So.2d 7 (Fla. lst DCA 1968) [ordering rule
nisi in prohibition be made absolute due to bias and
prejudice of school board members, thereby prohibiting
them from presiding over quasi-judicial proceedings
affecting livelihood of individuals]; The Tower Group, Inc.
v. Doral Enterprises, 760 So.2d 256 (Fla. 3rd DCA 2000)
[acrimonious judicial campaign involving re-election
opponent]; Cammarata v. Jones, 763 So.2d 552 (Fla. 4th
DCA 2000) [trial judge’s suggestions warranted well-
founded fear]; Stockstill v. Stockstill, 770 So.2d 191 (Fla.
5th DCA 2000) [trial judge’s questioning of witness war-
ranted removal]; Royal Caribbean Cruises, Ltd. v. Jane
Doe, 767 So.2d 626 (Fla. 3rd DCA 2000) [judge’s remarks
suggested pre-existing unfavorable opinions warranted
disqualification].
App. 91
(b)
SECTIONS 14-92 AND 14-93, CASSELBERRY CITY
CODE AND THE HEARING PROCESS “AFFORDED”
THE PLAINTIFF, DENIED SEMINOLE ENTER-
TAINMENT, INC. SUBSTANTIVE AND PROCE.
DURAL DUE PROCESS AS GUARANTEED BY
ARTICLE 1, SECTION 9 OF THE FLORIDA CON-
STITUTION
The Florida Supreme Court has defined the due
process parameters of Article 1, Section 9 of the Florida
Constitution in the following manner:
The basic due process guarantee of the Florida
Constitution provides that “no person shall be
deprived of life, liberty or property without due
process of law” Art. 1, Section 9, Fla. Const. Sub-
stantive due process under the Florida Constitu-
tion protects the fully, panoply of individual
rights from unwarranted encroachment by the
government. To ascertain whether the encroach-
ment can be justified, courts have considered the
propriety of the state’s purpose; the nature of the
party being subjected to state action; the sub-
stance of that individual’s right” being infringed
upon; the nexus between the means chosen by
* Here, the issue is Seminole Entertainment, Inc.’s constitutional
right to freedom of expression. Seminole Entertainment, Inc. is being
regulated and denied its right to offer erotic-striptease dancing as set
forth within Casselberry’s adult entertainment code. See Seminole
Entertainment, Inc.’s application for an adult entertainment license,
App. W, “adult performance establishment,” (presentation of erotic
dancing, exposure of specified anatomical areas, etc.] and Section 14-70,
Casselberry Adult Entertainment Code. For cases addressing the
constitutional protection afforded this type of entertainment, see page
60 infra.
App. 92
the state and the goal it intended to achieve;
whether less restrictive alternatives were avail-
able; and whether individuals are ultimately be-
ing treated in a fundamentally fair manner in
derogation of their substantive rights.
Department of Law Enforcement v. Real Property, 588
So.2d 957, 960 (Fla. 1991). See also, Club Misty, Inc. v.
Laski, 208 F.3d 615, 617-618 (7th Cir. 2000) [discussion of
interests involved in license revocation proceedings].
Further, because Casselberrys adult code is penal in
nature (revocation of license), it must be strictly construed
in favor of Seminole Entertainment. Dyer v. Dept. of
Insurance and Treasurer, 585 So.2d 1009, 1013 (Fla. 1st
DCA 1991) and ‘cases cited therein.
The Casselberry City Code and the hearing under-
taken in this case violated the petitioner’s due process
rights (both substantive and procedural) for at least the
following reasons.
1. The notice and amended notice of revocation are
insufficient as a matter of Florida law. See J.C. v. State,
630 So.2d 1187, 1189 (Fla. 2nd DCA 1994); Chrysler v.
Department of Professional Regulation, 627 So.2d 31, 33-
34 (Fla. lst DCA 1993); Conklin Center v. Williams, 519
So.2d 38 (Fla. 5th DCA 1987). See also, Burgess v. Storey
County Board of Commissioners, 992 P.2d 856 (Nev.2000)
[revocation of license]. In this regard, the petitioner filed a
motion to dismiss the citys amended notification of revo-
cation. The motion to dismiss was denied.
2. The Casselberry Code does not provide the corol-
lary right to subpoena witnesses and thus denies due
process. See Spiegel v. Lavis Plumbing Services, 373 So.2d
72 (Fla. 3rd DCA 1979).
lireseeensemeerenenesnnmentiiiiiiiiial
App. 93
3. The revocation was improperly based upon irrele-
vant, highly prejudicial and inadmissible and overwhelm-
ing hearsay testimony. See Florida Department of
Administration v. Porter, 591 So.2d 1108 (Fla. 2nd DCA
1992); Campbell v. Central Florida Zoological Society, 432
So.2d 684 (Fla. 5th DCA 1983); see also Richardson v.
Perales, 402 U.S. 389 (1971) [no due process violation
where right to subpoena witnesses available].
4. The petitioner was given insufficient time to
prepare for the hearing, and more specifically was not
provided notification of the specific allegations which
formed the basis for the revocation action. The petitioner
was not provided a witness list in advance of the hearing
not was it given an opportunity to adequately conduct
discovery and prepare for the hearing.
5. The petitioner was not given an opportunity to
remedy the (alleged) criminal wrong doings at Rachel’s
prior to the city commission imposing the ultimate sanc-
tion, in this case revocation of its adult entertainment
license. See Health Clubs, Inc. v. Eagan, 338 So.2d 1324
(Fla. 2nd DCA 1976); Health Clubs of Jacksonville, Inc. v.
Austin, 381 So.2d 1174 (Fla. lst DCA 1980); City of Miami
v. Keshbro, 717 So.2d 601 (Fla. 3rd DCA 1998), rev.
granted, 729 So.2d 392 (Fla. 1999).
6. The petitioner was denied its right to confront and
cross examine its accusers. For instance, police witnesses
refused to answer petitioner’s questions asserting a so-
called continuing criminal investigation privilege. The
effect of this assertion was to deny the petitioner a fair
hearing. On one hand the city presented witnesses who
offered testimony that the city believed benefitted its
cause but on the other hand, the city refused to allow the
App. 94
petitioner to adequately confront and cross examine these
same witnesses.” Further, on several occasions the city
thwarted the petitioner’s cross examination by claiming
that its questioning was beyond the scope of direct exami-
nation. It is axiomatic that great latitude is given in cross
examination and that the refusal to afford such broad
latitude to explore bias or to clarify any points which were
addressed during direct examination, constitutes reversi-
ble error. See Young-Chin v. City of Homestead, 597 So.2d
879, 881-882 (Fla. 3d DCA 1992); Dempsey v. Shell Oil
Company, 589 So.2d 373, 378 (Fla. 4th DCA 1991).
7. The citys order of revocation does not comport
with the requirements of Florida law. Thomas v. Office of
Sheriff, 507 So.2d 145 (Fla. lst DCA 1987).
(c)
THE REVOCATION WAS IMPROPERLY AND
UNLAWFULLY ENTERED IN THAT NO EVIDENCE
WAS TENDERED TO THE CITY COMMISSION
ESTABLISHING THAT THE OWNERS OF SEMI-
NOLE ENTERTAINMENT, INC. HAD ACTUAL
KNOWLEDGE OR WERE CULPABLY NEGLIGENT
IN FAILING TO STOP OR DETER THE ALLEGED
CRIMINAL IMPROPRIETIES WHICH THE CITY
RELIED UPON IN REVOKING THE PLAINTIFF'S
ADULT ENTERTAINMENT LICENSE
Due process requires that the city prove that Seminole
Entertainment, Inc. had actual knowledge or, at a mini-
mum, was culpably negligent in failing to prevent the
” Plaintiffs objections were repeatedly overruled by the mayor.
App. 95
alleged criminal activity from occurring at Rachel’s.
Record testimony reveals that these incidents were com-
mitted by a few rogue employees who concealed their
actions from other personnel and managers at Rachel’s
and obviously to the exclusion of Seminole Entertainment,
Inc. owners. These individuals used “look-outs” to make
sure the wrong doing was not observed and further made
concerted efforts to insure that the manager, -lanice Royce,
did not witness same as she would not tolerate such
activity.
Q. Darin Terry went on to say on, March 2, in your
presence, quote, that the last — best time to be
here is Sunday when the lady manager, Janice
Royce, is not here just Frank, end quote. Is that
what he told you?
A. That’s correct.
Now, how did you interpret that?
> ©
That they — from previous conversations with
Darin Terry — that Janice Royce was a real hard
quote, unquote, ass at the — at Rachel’s. She ran
upstairs VIP.
Page 183, December 27, 2000 transcript, App. P.
The testimony also revealed that no prostitution or
drug activity occurred in front of Janice Royce. See page
183-184, App. P.
Q. Can you testify that Janice Royce ever knew that
such a show ever went on?
A. I believe she knew that it was going on. Yes.
Q. I understand you might believe that. But do you
have any evidence to prove what you believe? Did
you ever see her there when it was happening?
OP O& P
App. 96
During the time the sex show was going on, no,
sir.
Now, the dancers referred to her as Dragon Lady
Yes.
— and Hard Ass?
Correct.
And your understanding of what they were
communicating in that regard was that she was
strict about what they could and couldn’t do?
(Objection omitted)
Q.
Isn’t that true, that that was your impression?
(Discussion omitted)
Q.
A.
Isn’t it true that your interpretation of the
reference to Janice Royce by the dancers that she
was, quote, Dragon Lady, end quote, and Hard
Ass, end quote, was that she strictly enforced
some rules, prohibited some conduct?
That was probably part of the interpretation.
See page 216-217, December 27, 2000 Transcript, App. P.
Additional testimony from the police also indicated
that these actions were not condoned nor did they occur
with the knowledge of high-level management of Rachel’s
and certainly not to the knowledge of Seminole Enter-
tainment’s ownership.
Q.
And, in fact, in all those instances someone was
up there lookin’ out for whomever, correct?
Q.
A.
App. 97
I'd have to refresh myself, but I would say almost
every one. Yes.
And it was communicated to you that, in part,
the person that they were lookin’ out for was
Janice Royce, correct?
I wouldn’t say on every incident, but on several.
Yes.
And there was an attempt to conceal from Ms.
Royce what was occurring; would you agree to
that? That was your observation?
That’s what we were told. Yes.
Time and time again, correct?
I don’t know if I'd say time and time again, but
there were several times. Yes.
See page 250, December 27, 2000 Transcript, App. P.
This testimony continued and established that man-
ager Royce would not allow such acts to occur at Rachel’s.
Q.
A.
Did that give you the impression that there were
acts occurring that were contrary to what Ms.
Royce would allow?
Yes.
And whenever on occasion when Janice Royce
would come to the area where specified sexual
acts were occurring, those acts would stop,
wouldn’t they?
I can only say on two incidences do I remember
that. But, yes.
See page 251, December 27, 2000 Transcript, App. P.
App. 98
There is no competent evidence that any person
committed any illegal acts while acting within the scope of
authority of Seminole Entertainment or in any responsible
relationship with Seminole Entertainment. Any illegal
acts committed on or about the premises of Seminole
Entertainment were done by individuals not acting on
behalf of or for the benefit of Seminole Entertainment. No
evidence was established that these purported violations
occurred with Seminole Entertainment’s actual knowledge
or that it was culpably negligent in failing to stop same.
Accordingly, there was insufficient evidence presented at
the hearing upon which to base the decision of the City
Commission. The evidence tendered provided that:
1. James Veigle, Charles Veigle, Nancy Voegtlin and
Robert Kelly are the officers and directors of Seminole
Entertainment, Inc.
2. On one occasion, Sergeant Laney purchased one
tablet of MDMA, also known as ecstacy, for $25.00 from
Julie Meyers, a dancer at Rachel’s. No evidence was
presented that dancers were employees of Rachel’s. [App.
P, page 39, lines 12-16]
3. During the course of his investigation, Sgt. Laney
never observed James Paul Veigle involved in any acts of
prostitution, drug possession, sale or use, or conduct in
violation of the City of Casselberry Code of Ordinances.
[App. P, page 51]
4. During the course of his investigation, Sgt. Laney
never observed Nancy Lee Voegtlin involved in any acts of
prostitution, drug possession, sale or use, or conduct in
violation of the City of Casselberry Code of Ordinances.
[App. P, pages 51-52]
ee
App. 99
5. During the course of his investigation, Sgt. Laney
never documented any involvement of James Veigle,
Nancy Voegtlin, Charles Veigle, or Robert Kelly in any acts
of prostitution, drug possession, sale or use, or conduct in
violation of the City of Casselberry Code of Ordinances.
[App. P, pages 78-79]
6. On two occasions, Agent Ray Peters gave his
credit card to Robert Rexroad in order for Mr. Rexroad to
obtain a cash advance to purchase cocaine. On one occa-
sion, Mr. Rexroad received a tip of $300.00 for obtaining a
cash advance of $1,000.00. On this same occasion, a fee of
10% was also included for obtaining the cash advance.
[App. P, page 368]. No evidence was presented that James
Veigle, Nancy Voegtlin, Charles Veigle or Robert Kelly had
any knowledge that cash advance fees received by the
licensee were related to any unlawful transaction. (App.
P, pages 217-218]. Furthermore, any such fees were at
best nominal in amount and insufficient to support license
revocation.
7. Agent Christine Gigicos has no knowledge that
James Veigle, Charles Veigle, Nancy Voegtlin, or Robert
Kelly were aware that the cash advance was used to
purchase cocaine. [App. P, pages 217-218]
8. On one occasion, Agent Gigicos was informed by
Darin Terry, a doorman employed by Rachel’s, that he
would be the “look-out” for Agent Gigicos and her associ-
ates while they received a private performance in the VIP
room at Rachel’s. Mr. Terry was looking out for manage-
ment, in particular Janice Royce, as well as other custom-
ers and bouncers. [App. P, pages 167-170, 201 and 215]
9. Agent Gigicos has no personal knowledge as to
any violation committed under the City of Casselberry
App. 100
Code of Ordinances by James Veigle, Charles Veigle,
Nancy Voegtlin, or Robert Kelly. [App. P, pages 174-175]
10. Janice Royce, General Manager of Rachel’s,
terminated the employment of two day shift dancers upon
finding out that the two had engaged in oral sex in the
establishment. [App. P, pages-177]
11. Agent Gigicos never witnessed any acts of prosti-
tution or drug transactions occur in the presence of Janice
Royce. Nor was Ms. Royce present during any alleged “sex
shows” that purportedly occurred at the establishment.
[App. P, page 216]
12. Agent Gigicos interpreted statements by Rachel’s
employees that Ms. Royce was a “dragon lady” and a “hard
ass” to mean that Ms. Royce strictly enforced the rules as
to what the employees could and could not do. [App. P,
pages 216-217]
13. Agent William Christiansen never observed any
acts of prostitution or ads in violation of the City of Cas-
selberry Code of Ordinances committed in the presence of
James Veigle, Charles Veigle, Nancy Voegtlin, or Robert
Kelly. [App. P, page 249]
14. Agent Christiansen was informed that persons
who operated as “lookouts” were doing so in an attempt to
conceal from Janice Royce certain employee conduct
prohibited by Rachel’s and Ms. Royce. [App. P, pages 250-
251]
15. When Ms. Royce would come to an area where
employees were engaging in conduct prohibited by Ra-
chel’s, the employees would cease engaging in the conduct.
(App. P, page 251]
App. 101
16. Agent Christiansen has no evidence that stock-
holders, directors, or officers of Seminole Entertainment,
Inc. had knowledge of or condoned the actions of lower
level personnel, such as Frank Otero. [App. P, page 253]
17. Agent Cleveland Ray Peters characterizes Frank
Otero and Darin Terry as lower level management person-
nel with Rachel’s. [App. P, page 398]
18. Agent Peters discovered over the course of his
investigation that Janice Royce had a reputation among
the employees of Rachel’s for being “hard,” in that she
would require the dancers to not engage in performances
prohibited by Rachel's and city ordinances. [App. P, pages
399-400]
19. Agent Peters never observed James Veigle,
Charles Veigle, Nancy Voegtlin, or Robert Kelly engage in
any illegal activity and he has no knowledge that they
engaged in or condoned any illegal activity. [App. P, page
402]
20. According to Agent Peters, the only person at
Rachel’s who had knowledge of the alleged drug transac-
tions was Robert Rexroad. [App. P, page 405]
Even in cases not involving freedom of expression
rights (which are implicated here) the evidence in this case
does not satisfy the requisite standard of knowledge in
order to revoke Seminole Entertainment Inc.’s license and
thus it should not stand. Woodbury v. State Beverage
Department, 219 So.2d 47 (Fla. lst DCA 1969): Freeze v.
Department of Business Regulation, 556 So.2d 1204 (Fla.
5th DCA 1990).
App. 102
(d)
THE CASSELBERRY CITY CODE VESTS UNBRI-
DLED AND UNFETTERED DISCRETION WITH THE
CITY COMMISSION TO DETERMINE WHETHER A
LICENSE SHOULD BE REVOKED OR SUSPENDED
BASED UPON THE SAME (ALLEGED) CRIMINAL
CONDUCT
The Casselberry Code, specifically Sections 14-92 and
14-93 are an unconstitutional prior restraint in violation of
Article 1, Section 4 of the Florida Constitution because
they vest overbroad discretion in the city commission to
determine whether a license should be suspended or
revoked. This discretion is further exacerbated due to the
fact that the code, Section 14-92, contains two subsections
designated “c,” one titled “Illegal activity/suspensions” and
the other titled “Revocation.” The first subsection “c” deals
with the suspension of an adult entertainment license
based upon three or more “violations” and “convictions.”
Under this subsection, criminal conduct resulting in a
“conviction” can result in a suspension starting with thirty
days, increasing to ninety days, and then to 180 days.
However, in this case, the City proceeded under the second
subsection “c,” styled “Revocation,” paragraphs (3), (4) and
(6), which allow the City to revoke an adult entertainment
license absent a criminal conviction or an escalation in
criminal activity. As such, this section is not only unduly
vague and inconsistent, but vests unbridled discretion
with the City to determine whether it will suspend a
license based upon three or more criminal convictions or,
in the alternative, to revoke a license without any evidence
that a criminal conviction has been obtained, reviewed or
adjudicated by the court. Further, both subsections can be
predicated upon the same (alleged) violations, e.g., Chapter
Da eeeeeeeenenieemennenneeel
App. 103
800, Florida Statutes [sexual offenses] or Chapter 895,
Florida Statutes [illicit drug activity]. See Section 14-
92(a), City Code. However, once again, the operative
distinction is that the City has the unfettered discretion,
as it did in this case, to proceed under the latter subsec-
tion (c), paragraphs (3), (4), and (6) absent criminal convic-
tion. As such, Sections 14-92 and 14-93 violate Article 1,
Sections 4 and 9 of the Florida Constitution.
Any licensing scheme (predicated upon restricting free
speech rights) which vests overbroad discretion in a
government body is deemed an unconstitutional prior
restraint. The underpinnings of this requirement (prohib-
iting overbroad discretion) is to prevent a government
entity from denying a party its constitutional right to
freedom of expression — without constitutionally adequate
and fundamental fairness in the process. Here it is clear
that the city is vested with unconstitutional discretion as
can be seen simply by reviewing the city code. As support
for this assertion, the Plaintiff relies upon the following
authorities. Diamond v. City of Taft, 29 F.Supp. 2d 633,
648-650 (E.D. CA), affirmed 215 F.3d 1052 (9th Cir. 2000);
Dease v. City of Anaheim, 826 F.Supp. 336, 342-344 (C.D.
CA 1993); MJA Susu, Inc. v. County of Benton, 853 F.Supp.
1147, 1151-1152 (D. MN 1994); Lady Lingerie, Inc. v. City
of Jacksonville, 176 F.3d 1358, 1361-1362 (11th Cir. 1999);
University Books, Inc. v. Miami-Dade County, 14
Fla.L.Weekly F. 0178, D181-182 (S.D. Fla. 2001); Nichols
v. Village of Pelham Manor, 974 F.Supp. 243 (S.D. NY
1997); Franken Equities, L.L.C. v. City of Evanston, 967
F.Supp. 1233 (D. Wy. 1997); BJS No. 2, Inc. v. City of Troy,
87 F.Supp.2d 800 (S.D. OH 1999); Silver Spurs, Inc. v.
Town of Palm Shores, 1997 U.S. Dist. Lexis 23742 (M. D.
Fla. 1997); Gayety Theaters, Inc. v. City of Miami, 719 F.2d
eo ee eee ee
App. 104
1550 (11th Cir. 1983); Spokane Arcades, Inc. v. City of
Spokane, 1997 Wash. App. Lexis 1989 (Ct. App. Wash.
1997); Cannabis Action Network v. City of Gainesville, 907
F.Supp. 1508 (N.D. Fla. 1995); Lee v. City of Newport, 1991
U.S. App. Lexis 26785 (6th Cir. 1991); Genusa v. City of
Peoria, 619 F.2d 1203 (7th Cir. 1980).
(e)
THE CITY RELIED UPON THE WRONG (AND DE
MINIMIS) STANDARD OF REVIEW, SPECIFICALLY
PREPONDERANCE OF THE EVIDENCE AND FUR-
THER IMPROPERLY AND UNLAWFULLY SHIFTED
THE BURDEN OF PROOF TO SEMINOLE ENTER-
TAINMENT, INC. TO ESTABLISH THAT ITS ADULT
ENTERTAINMENT LICENSE SHOULD NOT BE
PERMANENTLY REVOKED
Even in administrative cases which do not involve
constitutional rights protected under Article I, Section 4
(which, as set forth above at page 56 and infra at 59, are
subjected to a higher standard of review), the government
entity is still required to prove its allegations by clear and
convincing evidence. That is in direct contravention of the
citys adult entertainment code which states that the
burden of proof is preponderance of the evidence. See
Section 14-93(b)(3), City Code. In this case the city initi-
ated its revocation in reliance upon the preponderance
standard, received and accepted testimony, and questioned
witnesses. It was not until the deliberation stage of the
proceedings that the city commission took an about face
and gratuitously stated that it would in fact review the
evidence based upon a clear and convincing standard of
review. This constitutional infirmity is not cured by this
political rhetoric. Further, there is nothing in the record to
App. 105
indicate that the city commission understood what the
clear and convincing standard of review entailed — other
than the revocation order prepared by its attorneys after
the fact. As support for this point, Plaintiff relies upon the
following authorities. Department of Banking and Finance
v. Osborne Stern & Company, 670 So.2d 932 (Fla. 1996);
Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Further, the city commission improperly shifted the
burden of proof to Seminole Entertainment, Inc. to dis-
prove the charges as reflected by the commissioner’s
comments during their deliberation. The Supreme Court of
the United States has repeatedly held that the entity
seeking to restrict free speech rights has the burden in
such proceedings. Elrod v. Burns, 427 U.S. 347, 362-363
(1976) [exacting scrutiny applied even if restrictions
unintended but are the inevitable result of government
action]; United States v. O’Brien, 391 U.S. 367 (1968)
[expressive conduct]; 44 Liquormart, Inc. v. Rhode Island,
517 U.S. 484 (1996) [commercial speech]; Sable Communi-
cations of California, Inc. v. Federal Comm., 492 U.S. 115
(1989) [dial-a-porn legislation banning indecent telephone
messages violated First Amendment]; Reno v. ACLU, 521
U.S. 844 (1997) [Internet speech]; Riley v. Nat'l Fed. of the
Blind of No. Carolina, Inc., 487 U.S. 781, 793-795 (1988)
[requiring speaker to prove reasonableness unconstitu-
tionally chills speech]; Freedman v. Maryland, 380 U.S.
51, 58 (1965) [burden of proof rests with the censor and
same must bear the burden of persuasion]. See also,
Article I, Sections 4 and 9, Florida Constitution.
App. 106
(f)
THE CASSELBERRY ADULT CODE DOES NOT
PROVIDE PROMPT JUDICIAL REVIEW WHEN THE
CITY PERMANENTLY REVOKES AN ADULT EN-
TERTAINMENT LICENSE
Casselberry’s judicial review provision appears in
Section 14-93(d) of its adult entertainment code. Neither
this provision or any other provision in Casselberry’s Adult
Code provides an abatement or stay of the revocation
order pending review and decision on the merits by the
court. Under this provision, an aggrieved party must file a
lawsuit in the Seminole County Circuit Court. Obviously,
there are few time constraints in ordinary civil actions. It
is unfortunate that some cases can take years to resolve.
Casselberrys Adult Code reflects its belief that “prompt
judicial review” is satisfied by providing prompt judicial
“access.” As explained below, mere access to the courts is
not sufficient to satisfy the United States Supreme Court’s
“prompt judicial review” requirement in prior restraint
cases. See 4805 Convoy, Inc. v. City of San Diego, 183 F.3d
1108 (9th Cir. 1999) [city’s scheme for suspending and
revoking license unconstitutional in that it did not provide
for an automatic stay pending judicial review]; Nightclub
Management, Ltd. v. City of Canon Falls, 95 F.Supp.2d
1027 (D. Minn. 2000) [although automatic stay went into
effect pending city review of suspension/revocation, same
was dissolved once city council rendered decision, thus law
rendered unconstitutional]; Spokane Arcade, Inc. v. City of
Spokane, 1998 Wash. App. Lexis 1237 (Ct. App. Wash.
1998) [until city enacts a mandatory stay, ordinance is
unconstitutional in its entirety].
Any law that requires governmental approval, such as
a license or permit, before one may engage in any form of
App. 107
“expression” that is constitutionally protected is called a
“prior restraint.” See Near v. Minnesota, 283 U.S. 697
(1931). The suspension/revocation scheme contained in
Casselberry’s Adult Entertainment Code is a shining
example of a prior restraint. In Casselberry one must
obtain an adult entertainment license prior to operating a
business where exotic dancers perform. Dancing, even
nude dancing, is a form of expression protected under the
Federal and Florida Constitutions. See California v.
LaRue, 409 U.S. 109, 118 (1972); Doran v. Salem Inn, Inc.,
422 U.S. 922, 932 (1975); Schad v. Mt. Ephraim, 452 U.S.
61, 66 (1981); Barnes v. Glen Theatre, Inc., 501 U.S 560
(1991); and City of Erie v. Pap’s A.M., 529 U.S. 277 (2000).
Therefore, Casselberry’s adult licensing scheme is unques-
tionably a “prior restraint.”
Although prior restraints are not unconstitutional per
se, the Supreme Court has repeatedly ruled that any
system of prior restraints on expression “comes to this
Court with a heavy presumption against its constitutional
validity.” Bantam Books v. Sullivan, 372 U.S. 58, 70
(1963); New York Times Co. v. United States, 403 U.S. 372
(1963); Organization for a Better Austin v. Keefe, 402 U.S.
415, 419 (1971); Carroll v. Commissioners of Princess
Anne, 393 U.S. 175, 181 (1968); Southeastern Promotions,
Ltd. v. Conrad, 420 U.S. 546, 558 (1975); and Vance v.
Universal Amusements Co., 445 U.S. 308, 315-16 (1980).
Because of the danger that protected expression might be
suppressed, the Supreme Court has set out certain proce-
dural safeguards that all legislative prior restraints must
contain in order to pass constitutional muster. Beginning
with Freedman v. Maryland, 380 U.S. 51, 58-60 (1965),
and for twenty-five years thereafter, the Supreme Court
has repeatedly ruled that any system of prior restraints
App. 108
must contain three procedural safeguards. First, any
restraint imposed prior to a final judicial determination
must be for a specified, brief period of time and must be
limited to preserving the status quo. Second, prompt
judicial review must be available. Third, the government
must bear both the burden of seeking judicial review and
the burden of proof.” See, e.g., Teitel Film Corp. v. Cusack,
390 U.S. 139, 141 (1968); Blount v. Rizzi, 400 U.S. 410,
417 (1971); United States v. Thirty-seven Photographs, 402
U.S. 363, 367 (1971); and Southeastern Promotions, Ltd. v.
Conrad, supra at 560. Thus, for twenty-five years after the
Freedman decision there was no doubt concerning the
requirements of laws such as Sections 14-92 and 14-93 of
the Casselberry Adult Entertainment Code. Then came
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990).
FW/PBS was a plurality decision written by Justice
O’Connor in which only Justice Kennedy joined. Part II of
the opinion is the only part that dealt with the prior
restraint doctrine, and therefore the only part relevant to
this memorandum. Five other justices concurred in Part
II, three with reservations that will be explained below.
The case involved a Dallas licensing scheme, similar to
Casselberry’s, which required adult-oriented businesses to
obtain a license as a prerequisite to operating. Justices
O’Connor, Kennedy and concurring Justice Stevens first
suggested that one of the three Freedman requirements,
i.e., the requirement that the government bear the burden
” A related prong of the prior restraint doctrine is that Casselberry
not vest itself with overbroad discretion in its hearing process and in
deciding whether a license should be suspended or revoked which is
discussed supra at 56-57.
App. 109
of instituting judicial procedures and carry the burden of
proof in court, be eliminated (their reasoning is explained
below). The court nonetheless found the Dallas ordinance
unconstitutional because it lacked the two remaining
_ Freedman safeguards, i.e., a specified brief period in which
to grant or deny a license application and prompt judicial
review. The court found these two safeguards to be “essen-
tial.” Although the plurality failed to offer any enlighten-
ment on the precise meaning of the term “prompt judicial
review,” Justice O’Connor mentioned the prompt judicial
review requirement three times in her opinion. She re-
ferred to licensing laws that regulate protected expression
as requiring “the possibility of,’ or “an avenue for,” or
“availability of’ prompt judicial review. 493 U.S. at 228-30.
Other than these three references, the plurality failed to
further define or discuss what they meant by “prompt
judicial review.” In fact, the Supreme Court has never
specifically defined the term, but as explained below, our
highest court has always used “prompt judicial review” to
mean a prompt judicial “decision.”
During the ten years following FW/PBS, Justice
O’Connor’s language has created a split in the federal
courts over the meaning of prompt judicial review. The
First, Fifth and Eleventh Circuits have all interpreted
FW/PBS to require that a statute provide only access to
judicial review.” See Jews for Jesus, Inc. v. MBTA, 984
* A Seventh Circuit case, Graff v. City of Chicago, 9 F.3d 1309 (7th
Cir. 1993), has also been cited to support the argument that mere
“access” satisfies the prompt judicial review requirement, but it is not a
proper citation. Graff was a plurality, en banc decision rendered by
twelve sharply divided judges. Judge Manion and four others concluded
that common law certiorari satisfied the prompt judicial review
(Continued on following page)
App. 110
F.2d 1319 (1st Cir. 1993); TKS Video, Inc. v. Denton
County, Tex., 24 F.3d 705 (5th Cir. 1994); and Boss Capital,
Inc. v. City of Casselberry, 187 F.3d 1251 (11th Cir. 1999).
The Fourth, Sixth and Ninth Circuits have rejected any
modification by FW/PBS of the traditional meaning of
prompt judicial review and have maintained that a judi-
cial decision is necessary to satisfy the requirement. See
East Brooks Books, Inc. v. City of Memphis, 48 F. 3d 220
(6th
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