# Appendix — Seminole Entertainment, Inc. v. City of Casselberry > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1386%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2003 - **Citation:** 539 U.S. 915 ## Text 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. 15 21 30 32 36 41 k 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: | ye ae 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. ees Ske od repate S Whe rk to ONS eet Heal LD Et ee eed we Lorrie oD apa A CAS Bah ater ORE WAR Ad ee ab ves Desi ba we RY SST Ait caR EAL tac, sco aat es outslttne s 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 NOISE FAS Re OR ASRS Bi Ribe bt Tui adian. tiated Daa git i idtbies wlai bt ah secaibatcs le 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. ' j i t i t 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 —— Te LE LOR TON See MEO ORL TE Sw ad a ee ey eee, ae 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 A [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1386%3A2. Public record. Not legal advice.