STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RALPH AND MARY JANE CONTE, )

CACTUS ROOM, )

)

Petitioner, )

)

vs. ) CASE NO. 76-872

)

DIVISION OF BEVERAGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled cause on May 17, 1976 at Winter Park, Florida.

APPEARANCES

For Petitioner: William F. Simonet, Esquire

1720 E. Washington Street Orlando, Florida

For Respondent: Charles F. Tunnicliff, Esquire Staff Counsel

Department of Business Regulation 725 South Bronough Street

Room 210, Johns Building Tallahassee, Florida

By application for transfer of alcoholic beverage license dated November 6, 1975, Ralph W. Conte and Mary Jane Conte applied to the Division of Beverage to have the beverage license of the Cactus Room 121 N. Bumby Avenue, Orlando, Florida, transferred to them. The application was denied by the Division of Beverage for the sole reason that Ralph W. Conte was not qualified to hold such license by reason of not being a person of good moral character. Conte petitioned for an administrative hearing pursuant to the provisions of Chapter

120 F.S. and this hearing followed. Two witnesses testified on behalf of the Division of Beverage, six witnesses including Petitioner testified on behalf of Petitioner, and 10 exhibits were offered into evidence, of which 6 were admitted.

FINDINGS OF FACT

1. Ralph W. Conte and his wife agreed to buy the Cactus Room in Orlando from the present owner for $108,000 which consisted of cash above, and the assumption of, an existing mortgage of approximately $57,000.

   
   

2. Exhibit 1, Fingerprint Transmittal Sheet, shows District Supervisor's recommendation of approval and final disposition by Division of Beverage of

   disapproval. Under comments appears "Statutory Limitations expired" and thereunder appears "561.15(1)" an apparent reference to s. 561.15(1) F.S. Exhibits 2, 3, 4, and 5 are Application Transmittal Form; Financial Statement of Conte; Personal Data Sheet signed by Conte; and Application for Transfer of License, respectively.

   
   

3. Exhibit 6 is an agent's report of investigation which shows FBI Rap Sheet and ABC letter from Cleveland attached; and that information, not included on Exhibit 6, was forwarded to Mr. Ivey and Mr. Ball. The agent recommended disapproval of the application. The objection to the admission of this exhibit on grounds that it was hearsay, and that request therefor before the hearing had been refused, was sustained. The investigating officer was present and testified.

   
   

4. Exhibit 7, which was offered into evidence, is a copy of an unsigned form letter which purports to have been transmitted to the Ohio Alcoholic Beverage Commission for information respecting applicant's interest in two licensed premises in Cleveland. The form requested information "relative to the above named holding an alcoholic beverage license in your state, d/b/a Melody Bar & Conte's Lounge Bar and any history of conduct, criminal violation and/or administrative violations that your records may reflect". In the blank provided thereunder was written in longhand "no record of the above mentioned". The objection to the admission of this exhibit into evidence was sustained on the grounds that there was no authentication of document, it was not signed by anyone purporting to have authority to do so, and it was hearsay. Upon more careful perusal of the exhibit it further appears that the handwritten response contained thereon of "no record" could well relate to the second part of the requested information, viz. "any history of conduct, criminal violation and/or administrative violations that your records may reflect."

   
   

5. The objection to Exhibit 8, which purports to be an FBI Rap Sheet, was sustained on the grounds that it was not authenticated. Even if admitted this document shows one arrest in 1936 which was dismissed, and two offenses in 1940 some 36 years ago.

   
   

6. Exhibit 9, which consisted of a series of newspaper articles relating to Conte's operation of a sanitary landfill in Cleveland, Ohio, in 1970, was also objected to on the grounds that it constituted rank hearsay. This objection was also sustained.

   
   

7. On the Personnel Data Sheet (Exhibit 4) Conte showed thereon that he had been arrested in 1973 on a charge of DWI and that adjudication of guilt was withheld. No evidence to the contrary was presented. Conte was also arrested in 1975 for violation of Orlando's City Ordinance 43.56-1, carrying concealed weapon through airport security. This case was nolle prossed due to absence of any evidence of criminal intent on the part of Conte (Exhibit 10).

   
   

8. Respondent testified to his landfill operations in Cleveland and no evidence of impropriety was presented. Five witnesses who had known Conte in Florida for the past 3 to 5 years attested to his good moral character, and an attorney from Cleveland, who has known Conte for some 25 years, attested to his honesty, integrity, and good moral character. In addition, Exhibit 10 containing letters attesting to the good moral character of Conte from the mayor of the City of Garfield Heights, Ohio; the president of Suburban Builders Supply Company, Maple Heights, Ohio; and the president of United States Saving Association of Cleveland, Ohio, was admitted into evidence.

   CONCLUSIONS OF LAW

9. Section 561.32(1) F.S. provides in pertinent part: "Licenses issued under the provisions of

   the beverage law shall not be transferred except as follows: When a licensee shall have made a bona fide sale of the business which he is so licensed to conduct he may obtain a transfer of such license to the purchaser of said business, provided the application of the purchaser shall be approved by the Division in accordance with the same procedure provided for in ss. 561.17, 561.18, and 561.19 in the case of issuance of new licenses."

10. Section 561.17(1) F.S. provides in pertinent part: "If the applicant [transferee of license] or

    any person interested with the applicant either directly or indirectly in the business is not qualified, the application shall be denied by the Division."

    
    

11. Qualifications required to obtain beverage licenses are contained in

    s. 561.15(1) F.S. which provides in pertinent part:

    
    

    "Licenses shall be issued only to persons of good moral character"

    
    

12. As noted above the Division stipulated at the hearing that the sole basis for denying the license is the moral character of Conte. Therefore the sole issue for consideration is whether there was substantial, competent evidence to support the conclusion that applicant was not of good moral character so as to justify the denial of the transfer of license.

    
    

13. Here the only evidence offered to show Conte not to have good moral character was not admitted because of lack of authentication, failure to lay proper predicate or as hearsay. Even if this evidence had been admitted it showed a conviction of a felony 36 years ago, an ambiguous report from the ABC office in Cleveland, an innuendoes of guilt by association in connection with Conte's landfill operation in Ohio.

    
    

14. Section 561.15(1) F.S. provides that a license cannot be issued to an applicant who has been convicted of a felony within the past 15 years. Here applicant's conviction was more than double the number of intervening years warranting denial of a license. Half a lifetime since such a conviction should certainly mute any stigma resulting there from.

    
    

15. Here the evidence did not reach the point where it could be said Conte was suspected of criminal activity and mere suspicion was rejected by the court in Wilkenfeld v. Meiklejohn, 216 So.2d 237, as grounds for denial of a license.

    
    

16. The offense of DWI does not involve an act of baseness, vileness, or depravity in the private or social duties which man owes to his fellow man so as to reach the status of an offense involving moral turpitude.

17. In the absence of any substantial competent evidence showing that applicant is not of good moral character the testimony presented that his character is good cannot be ignored, even if there is no presumption that a man's character is good until the contrary appears.

    
    

18. From the foregoing it is concluded that no substantial competent evidence was presented to show that the applicant, Ralph W. Conte, has other than good moral character, and the action in denying the transfer of the beverage license to operate the Cactus Room in Orlando was unwarranted. It is therefore,

RECOMMENDED that the application of Ralph W. Conte, and Mary Jane Conte, to be transferees of the beverage license to operate the Cactus Room, 121 N. Bumby Avenue, Orlando, Florida, be approved.

DONE and ENTERED this 27th day of May, 1976, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Docket for Case No: 76-000872

Orders for Case No: 76-000872