STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACOB'S LADDER, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 76-1220

)

DIVISION OF BEVERAGE, )

)

Respondent. )

)

RECOMMENDED ORDER

The subject cause came on for hearing before the Division of Administrative Hearings' duly designated Hearing Officer, James E. Bradwell, on July 13, 1976, in Ft. Lauderdale, Florida. The parties to this proceeding were duly noticed in accordance with the notice provisions of Chapter 120, F.S., and all parties were allowed to present evidence and to introduce documentary evidence regarding the issues posed herein.

APPEARANCES: 1/

For Petitioner: Charles Bayard Hankel, III, Esquire

2641 East Atlantic Boulevard Pompano Beach, Florida 33062

For Respondent: Charles F. Tunnicliff, Esquire

Department of Business Regulation Division of Beverage

The Johns Building Tallahassee, Florida 32304

ISSUES

The Petitioner appeals the disapproval of its license transfer application by the Respondent. Hence the issue posed is whether or not the Respondent unlawfully disapproved the application for transfer on the grounds that "the location failed to qualify for zoning approval" within the meaning of Section 561.18, F.S.

The premises sought to be licensed is located at 1480 South Ocean Boulevard, Pompano Beach, Florida. The former name of the business was Paddock International, Inc., d/b/a Paddock International. The proposed name of the new business is Jacob's Ladder, Inc., d/b/a Jacob's Ladder. When the application for transfer was submitted to the Division of Beverage for approval, it was rejected on May 19, 1976, for, as previously stated, the reason that it "failed to qualify for zoning approval", citing Section 561.18, F.S., as amended. The disapproval was appealed and the matter is now before the undersigned to determine whether or not the applicants and the premises met all of the qualifications required in the beverage law.

The Petitioner takes the position that the Respondent's and County Zoning Board's action amounts to arbitrary and capricious conduct and that in no instance, has zoning approval been required in license approval situations. C.

1. Lloyd, Respondent's representative and employee for approximately eight years, testified that he processes approximately 600 license applications yearly of which approximately 40 to 50 percent represent transfer applications. Based on his experience, the Petitioner's application is the only transfer application requiring zoning approval. He was advised during his investigation by a Mr. Kauth that the Broward County Zoning Board acted on a previous mix-up in the type of license which was previously issued and the county was misinformed in giving zoning approval to the prior licensee. He testified further that in almost all cases no inspection is made as to whether or not the particular premises meets the zoning requirements in transfer application situations.

   
   

   By way of background, the record evidence reveals that the license was initially issued to the owners of the premises sought to be licensed here on or about January 4, 1960. Since that time, approximately 21 licenses have been issued and/or renewed and at no time has zoning ever surfaced as a problem. The most recent zoning certificate was dated December 4, 1974 and the zoning was satisfactory at that time.

   
   

   George Maurer, Chief of Zoning Inspection for Broward County and who has served as the Zoning Chief for the past three years testified that he supervises personnel in the zoning department and is charged with maintaining records; overseeing and enforcing zoning procedures. He recalled being asked to sign the zoning approval form for the subject premises and he refused in that there was no certificate on file and according to his testimony, such must be current with the present owner's name contained thereon. He admitted that the prior zoning approval certificate had not been revoked either administratively or otherwise and that there was no hearing as to any proposed revocation or notice of any intent to revoke the current zoning approval certificate. The zoning approval was withheld here due to the inadequate parking spaces and for violations of the South Florida Building Code and numerous other code violations. To the best of his knowledge, the code violations had been corrected with the exception of a sign which was erected on the premises sought to be licensed. When Petitioner filed its application for transfer of license from the previous owners, he was advised that there existed 47 parking spaces, however, based on a field examination conducted by him on August, 1976, his inspection revealed that there were only 38 parking spaces. On cross examination he testified that there has been no change in the zoning regulations from the time of issuance of the prior zoning certificate through the time that the disapproval was given for the license application in question.

   
   

   Robert R. Krauth, Deputy County Administrator of Broward County, testified he mailed a mailgram to beverage agent Joseph J. Scozzafava and advised that the zoning certificate had been improperly granted for the premises sought to be licensed under the previous ownership. The testimony is that he had no knowledge that zoning certificates were required in transfers and that to his knowledge no steps had been taken to close the restaurant due to these alleged inadequacies. On cross examination he testified that he had some knowledge that the use of the premises had changed however he had no evidence on that point.

   He received no complaints from Jacobs Ladder and to his knowledge the sole problem centered around the inadequate parking spaces.

   
   

   George C. Gatterer, 2/ an employee of Broward County Board of County Commissioners and the Assistant Director of General Services for the zoning department, testified that the area is located in a R-6 zoning area. The zoning

   certificate could not be approved for the subject premises based on the "improper parking spaces". He was aware of no regulation which required that new zoning certificates be changed based solely on a name change. He knew the former compliance officer, Smith, who certified that the property had been in compliance during the prior periods in which the zoning approval had been certified. Other evidence revealed that the parking lot had not changed nor had the use changed and that prior licensees had no problem getting licenses transferred. Petitioner's agents attempted to obtain parking in contiguous areas but were unable to obtain such.

   
   

   FINDINGS OF FACT

   
   

   1. Based on the record evidence, it is clear that the request for a new zoning certificate was a new procedure utilized by the Division of Beverage in the subject case. Respondent's own witness testified that he was in charge of processing most license transfers and that he was aware of no other application in which a zoning certificate was required in order to gain transfer approval from the Respondent. The evidence further revealed that the same number of parking spaces, at least in terms of footage, now exist as has existed when zoning approval was given in the earlier situations. This situation has existed for more than 16 years and the county's witness who is in charge of the zoning approval testified that there has been no change in the zoning regulations since the issuance of the most recent zoning certificate in 1974. Evidence further reveals that at no time did the Petitioner receive and notification that the prior zoning approval was being withdrawn either administratively or otherwise, nor was any notice given of an intent to revoke the prior zoning approval.

      Based on these facts, the undersigned concludes that the requirement that a zoning approval be submitted along with the transfer application in this case represented a marked departure from the existing rules, regulations and procedures of the Division of Beverage, and amounted to a denial of due process. Based thereon I shall recommend that the transfer application be approved since, in my opinion, based on the evidence presented, the premises possess the requisite qualifications as required by the beverage law. It thus appears that Respondent's failure to approve the application for reasons advanced cannot stand and I shall recommend that the approval be issued forthwith.

      
      

      CONCLUSIONS OF LAW

      
      

   2. The parties to this proceeding were properly noticed in accordance with the notice provision of Section 120, F.S.

      
      

   3. The authority of the Respondent is derived from Section 561, F.S.

      
      

   4. The Petitioner's premises satisfied all the qualifications as required by the beverage law and the disapproval of the license transfer application herein was erroneously withheld.

      
      

   5. The Respondent's actions in failing to approve the application in this cause for the reason that it "failed to qualify for zoning approval" did not comport with its established investigative techniques in prior licensing investigations.

RECOMMENDATION

Based on the foregoing findings and conclusions of law, I recommend that the Department of Business Regulations, Division of Beverage, approve the application submitted in the subject case.

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

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTES

1/ International Studio Apartment Association, a Florida nonprofit corporation petitioned the Division of Beverage to grant its status as a party to intervene in the above license application in that "Petitioner is a substantially affected person under the provisions of Chapter 120, F.S., and Rule 28-5.02, of the F.A.C." Said motion was renewed at the outset of the hearing in this cause and the undersigned denied the motion to intervene.

2/ Phonetic spelling used.

COPIES FURNISHED:

Charles Bayard Hankel, III, Esquire 2641 East Atlantic Boulevard Pompano Beach, Florida 33062

Charles F. Tunnicliff, Esquire Department of Business Regulation Division of Beverage

The Johns Building Tallahassee, Florida 32304

Rod Tennyson, Esquire

208 Clematis Street, Suite 600 West Palm Beach, Florida 33401

Docket for Case No: 76-001220

Orders for Case No: 76-001220