vs. ) CASE NO. 78-1496
) DABT NO. 27-375
Respondent. )
This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on September 2, 1978. The parties were represented by counsel:
For Petitioner: Edmund W. Holt, Esquire
By letter dated March 31, 1978, Charles A. Nuzum advised Donald Gomillion and Ruby Gomillion, on behalf of respondent, that their application for transfer of a beverage licence had been disapproved on the ground that "Earl Gomillion who has a direct or indirect interest in the business for which the license is sought has been convicted of a felony in the past 15 years." Petitioners dispute the contention that Earl Gomillion has a direct or indirect interest in the business with respect to which the license transfer is sought.
Earl Gray Gomillion is Donald Gomillion's brother and Ruby Gomillion's husband. In 1974, Earl was convicted of shooting into a dwelling, which is a felony.
Thereafter, Larry Clifton entered into an agreement with Louis Matrone and Louis' wife, Santa Matrone, to purchase Matrone's Liquors Lounge, the bar and package store in Pensacola around which the present controversy revolves. Under his agreement with the Matrones, Mr. Clifton operated the establishment during part of 1977. From May or June until October of 1977, Earl worked on the premises putting up stock and serving liquor. He left this job when respondent's agents objected to his working, because of his being a convicted felon. Beginning in May of 1977, Ruby worked at the establishment part-time,
keeping books. In the fall of that year, Mr. Clifton's arrangement with the Matrones came to an end and the Matrones resumed full ownership and control of the business. In September of 1977, Ruby took over the management of Matrone's Liquors Lounge, as a full-time employee of the Matrones.
Ruby and Donald decided they wanted to buy the business and asked Earl for money for that purpose. Earl was receptive. He realized fifteen thousand dollars ($15,000.00) from the sale of some land, which he made available to Ruby and Donald. In addition, Ruby obtained a loan in the amount of five thousand dollars ($5,000.00) from an Alabama bank. On January 28, 1978, Donald and Ruby concluded an agreement with the Matrones to purchase the business. Respondent's exhibit No. 2. On February 6, 1978, Donald and Ruby signed a promissory note, in the principal amount of fifteen thousand dollars ($15,000.00), as co-makers, in favor of Earl; and executed a mortgage encumbering the business premises, as security for payment of the note. Respondent's exhibit No. 3.
On or about March 3, 1978, Earl executed an instrument cancelling the mortgage encumbering the business premises. Petitioner's exhibit No. 2. On March 6, 1978, Ruby executed an unsecured promissory note to Earl in the amount of five thousand dollars ($5,000.00). Respondent's exhibit No. 6. The note does not bear interest. Ruby received five thousand dollars ($5,000.00) from Earl which she used to pay personal debts and for some other personal purposes, but most of the money went into the business. At the time of the hearing, Ruby had paid all of the monthly installments she undertook to pay, in executing the note in favor of Earl on March 6, 1978.
Also on March 6, 1978, Donald executed an installment promissory note in favor of Earl. Respondent's exhibit No. 5. This note is in the principal amount of ten thousand dollars ($10,000.00) and is secured by a mortgage on Donald's house, which Donald and his wife executed on the same date. Donald receive ten thousand dollars ($10,000.00) from Earl. Most, if not all, of this money went into the business. Donald has made periodic payment to Earl, but at the time of the hearing, he had not paid the full amount of the installment payments he agreed to make, when he executed the note in favor of Earl on March 6, 1978.
At the time of the hearing and for several months previously, Ruby Gomillion was the only person authorized to draw checks against the business checking account. Earl Gomillion has never been authorized to draw on this account. Before it was established, however, a joint checking account, shared by Earl and Ruby Gomillion, was used for the business as well as for personal purposes.
Since the beginning of May and continuously to the time of the hearing Earl Gomillion has been employed by H & W Tile, Inc., a contracting company with offices in Mobile, Alabama. During the course of his employment, he has worked in Louisiana, Mississippi, Texas and Ohio. On the average, he has been getting to Pensacola every other weekend. Earl has been exercising no control over the day to day operation of the liquor business and has made no attempt to do so.
CONCLUSIONS OF LAW
Because of his conviction, Earl Gomillion is not qualified to hold a license under the Beverage Law. Section 561.15(2), Florida Statutes (1977). Although his brother Donald and his wife Ruby Gomillion are not subject to this disability, their application for transfer of license must be denied if "any
person interested with [them] . . . either directly or indirectly in the business is not qualified . . . Section 561.17(1), Florida Statutes (1977).
The "interest in a business which one must have to come within the statute . . . [has been] take[n] . . . to mean a pecuniary interest." Wilkenfeld v. Meiklejohn, 216 So.2d 237, 239 (Fla. 1st DCA 1968).
Responsibility "for the critical function of supervision of the employees in the entertainment business of the establishment," Robbie's Yum Yum Tree West, Inc.
v. Division of Beverage, Department of Business Regulation, 330 So.2d 743, 744 (Fla. 1st DCA 1976), coupled with "receiv[ing] through the business some
$20,000.00," id., has been held to constitute the possession of an interest in a business, within the meaning of Section 561.17(1), Florida Statutes (1977).
One Armand Cerami was held to have an indirect interest in a corporation that controlled the restaurant where he "was the real manager, ran the restaurant and was responsible for hiring and firing of employees." Tony's Fish Market of Ft. Lauderdale, Inc. t/a Tony's Fish Market Restaurant v. State of Florida, Division of Beverage, No. 76-2221 (Fla. DOAH; rec. order entered Feb. 24, 1977). The application for approval to transfer his stock in the corporation to his wife, who "was not shown to have any active interest in the management of the licensed premises," id., was denied on the ground that he continued to be interested with his wife in the business. Final Order entered May 3, 1977, pet. for rev. den. 358 So.2d 125 (Fla. 1st DCA 1978).
In the present case, the applicants made a convincing showing that Earl Gomillion had nothing to do with the day to day management of the business as of the time of the hearing, and for some months before. The evidence also showed that some of the money Donald and Ruby Gomillion put into the business could be traced to Earl Gomillion, from whom they borrowed it. But the loans were not to the business or to the partnership. Donald and Ruby Gomillion borrowed separate and different amounts. Each is personally obligated to repay Earl Gomillion at a time and in a manner that bear no relationship to the business. Earl Gomillion has no legally recognized interest in his relatives' enterprise.
That respondent grant petitioners' application.
DONE and ENTERED this 23rd day of October, 1978, in Tallahassee, Florida.
ROBERT T. BENTON, II
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Edmund W. Holt, Esquire
