vs. ) CASE NO. 79-532
) STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )
Respondent. )
Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at Room 202, City Hall,
301 South Ridgewood, Daytona Beach, Florida, at 11:00 A.M., June 8, 1979.
For Petitioner: Reginald E. Moore, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Whether the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, was correct in its denial of the Petitioner's application and request to transfer a Series 4-COP beverage license for the premises, Hank's Bar and Grill.
The facts reveal that sometime in December, 1978, the Petitioner, James Sylvester Cooper, determined to apply for the transfer of a Series 4-COP beverage license which originally had been issued to the Petitioner's since deceased father. The license was issued by the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. The license which had been held by Mr. Cooper's father was for the premises known as Hank's Bar and Grill, 518 South Campbell Street, Daytona Beach, Florida.
In pursuit of the request for transfer, the Petitioner completed a personal questionnaire form which was given to him by the Respondent, and may be found as the Respondent's Composite Exhibit No. 2 admitted into evidence. In actuality, a form was completed for this license transfer and the transfer of a license in a companion application, D.O.A.H. Case No. 79-533. The Petitioner also completed a fingerprint card by affixing his fingerprints to that document, and the document may be found as the Respondent's Exhibit No. 1 admitted into evidence. The fingerprint card was submitted in December, 1978. The questionnaire was completed on January 3, 1979. Both items were filed with the Respondent in its office located in Daytona Beach, Florida.
When the Petitioner completed the questionnaire form, his initial response to question No. 6 was, "No". The thrust of the question No. 6 was to ask the applicant if he had been arrested for the violation of any other laws of the State of Florida not enumerated in questions Nos. 1 through 5 of the first page of the questionnaire or arrested for the violation of laws of other states or the United States, excluding minor traffic violations and instructed that if the answer was, "Yes," that details be provided concerning the nature of the events surrounding the arrest.
When the questionnaire which was submitted on January 3, 1979, was reviewed by employees of the respondent, it was noted that the answer to question No. 6 was in the negative, notwithstanding the fact that the Respondent had received information from the Florida Department of Law Enforcement that possible charges for carrying a concealed firearm in Daytona Beach, Florida, and for issuing a check for which insufficient funds were available to honor the check, which latter charge purportedly was brought in Duval County, Florida. Officer Blanton, the employee of the Respondent who made this discovery, tried to contact the Petitioner in person and was unsuccessful. Later, Officer Blanton was able to contact Mr. Cooper by telephone and to request that the Petitioner come in to discuss the answer to question No. 6. Cooper agreed and came to the office of the Respondent in Daytona Beach on January 8, 1979.
At the meeting on January 8, 1979, when confronted with his answer to question No. 6, the Petitioner responded that he did not understand that question to mean that you had to indicate all arrests. The Petitioner said he understood the question to mean that only convictions should be reported. Once the Petitioner had teen specifically advised by the Respondent's employee that the form, as it suggested, required an applicant to indicate arrests, he admitted that he had been arrested by the Daytona Beach, Florida, Police Department for carrying a concealed firearm, and stated further that the adjudication of quilt in that matter had been withheld. Cooper said that he would verify this disposition of the case and report back to the Respondent to establish the fact of the disposition by providing the Respondent with an official record.
At the meeting referred to above which was held on January 8, 1979, between Officer Blanton and the Petitioner, Mr. Cooper denied any arrest having occurred in Duval County, Florida, relating to a worthless check.
The Petitioner left the office of the Respondent, to shortly return with his attorney, Mr. Moore, and a further conversation was held on January 8, 1979, pertaining to the Petitioner's arrest record. A discussion was held concerning the carrying of a concealed firearm case in Daytona Beach, Florida, and the Duval County, Florida, worthless check allegations. Again, the Petitioner admitted being arrested for carrying a concealed firearm, but denied any involverent in a worthless check charge in Duval County, Florida. In view
of this further denial of a knowledge of a Duval County, Florida, charge, Officer Blanton indicated that he would check into the matter further.
After the second meeting between the Respondent's employee and the Petitioner, and on the same day, January 8, 1979, the employee of the Respondent discovered another allegation of an arrest which had taken place in Daytona Beach, Florida, for the offenses of loitering and prowling.
On January 10, 1979, the Petitioner reported back to the office of the Respondent in Daytona Beach, Florida, and amended his application form by striking in the column the word, "No" and writing in the column the word, "Yes" and indicating that the carrying a concealed firearm complaint had taken place in 1974. In support of his position he produced documents that showed that the disposition of that case had been: withhold adjudication of quilt and place the Petitioner on two years unsupervised probation.
When questioned about the loitering and prowling arrest, the Petitioner initially denied that arrest, but later indicated that he thought it was vagrancy. Subsequent to that discussion, he indicated on the application form that a loitering charge had occurred in June, 1976, for which he had paid a
$35.00 fine.
In the meeting on January 10, 1979, when the employee of the Respondent interrogated Petitioner further about any incidents in Duval County, Florida, involving a worthless check, the Petitioner again replied that he had no connection with such a charge.
On January 11, 1979, the Respondent, in its Daytona Beach office, received a reply to its inquiry about the Duval County, Florida, case for a worthless check. That response may be found as Respondent's Composite Exhibit No. 4 which is a transmittal sheet and an arrest and booking report. The arrest and booking report shows that the Petitioner, James Sylvester Cooper, had been arrested in May of 1975 in connection with a check charge.
Officer Blanton then contacted Mr. Cooper and indicated that the Respondent would need to know the disposition of the Duval County, Florida, charge, to which Cooper replied that be would go to Jacksonville and take care of the matter by bringing back a disposition of the case.
Later in the month, Mr. Moore, the Petitioner's attorney, spoke with Officer Blanton and asked for the case number of the Duval County, Florida, allegation against the Petitioner. Mr. Moore was given the information and stated he would discover the nature of the allegation in Duval County and contact the Respondent when he had ascertained the facts of those charges and had attended them.
On January 31, 1979, Officer Blanton saw that the application for the license was submitted through channels to the Director of the Division of Alcoholic Beverages and Tobacco, in Tallahassee, Florida. The application was reviewed in view of the answer to question No. 6 as amended, on January 10, 1979, which answer reflected the carrying of a concealed firearm charge and the loitering charge in Daytona Beach, but did not reflect the worthless check charge in Duval County, Florida. Acting in view of this information, the Director issued a letter on February 7, 1979, indicating his intent to deny the application for transfer of the license. In that letter the operative provisions of the statement of denial were couched in this language:
The applicant's failure to truthfully answer questions concerning his qualifications and his criminal history record are indicative of a lack of good moral character.
Subsequently, in keeping with his representations, the Petitioner's attorney went to Jacksonville and discovered that there was outstanding a case against the Respondent for failure to appear in connection with a worthless chock charge, and this allegation was pursuant to Section 300.405, Florida Statutes. A disposition of the case was achieved on March 8, 1979. A copy of the disposition may be found in the Respondent's Exhibit No. 3 admitted into evidence.
In the course of the hearing in this cause, the Petitioner testified about the matter in Duval County, Florida, which dates from May, 1975. Petitioner's explanation was that he had some occasional contact in Duval County, Florida, in 1974 and 1975 and that while living there he mistakenly assumed that his roommate would pay the landlord, which did not occur, and led to some type of claim by the landlord. The Petitioner stated that although he does not recall a summons being served on him, he does recall that his roommate contacted him to tell him about an outstanding worthless check, for which he went voluntarily to the Judge's Chambers, then reported to be fingerprinted in the jail area and reported back to the Judge's Chambers and paid off the check through the Judge's secretary.
In fact, the Petitioner had been arrested in Duval County, Florida, in the year 1975, in connection with a worthless check claim and the facts of this case indicate that he had a knowledge of that case when he answered question No.
6 in the submitted questionnaire on January 3, 1979, as amended on January 10, 1979. This is borne out by the facts which were revealed in the process of checking on the arrest allegation through the office of the Respondent and the answers that the Petitioner gave to the representative of the Respondent, and by the Petitioner's admission in the course of the hearing that he had been fingerprinted and taken to court in connection with a worthless check charge and by his grudging recognition in the course of the hearing that the events and charges complained about in the Respondent's Exhibit No. 3; i.e., the arresting and booking report and attendant disposition of the case, were matters which took place in Duval County, Florida, and matters that pertained to him.
Likewise, the Petitioner only admitted the loitering arrest and conviction after being confronted for a third time, the first time being in filling out the form which was handed in on January 3, 1979; the second occasion of January 8, 1979, when he was told that the questionnaire, just as it said, required that all arrests be reported; the third instance, January 10, 1979, by direct questioning concerning the offense in which he initially denied the loitering arrest.
Finally, the Petitioner in his initial completion of the questionnaire, even though the questionnaire clearly said to report arrests, did not do so until told to do so specifically on January 8, 1979, and then he only reported the arrest for carrying a concealed firearm.
In reading the basis of the denial of the license, which has been set out above, it could be read to address the issue of the answers which the Petitioner gave in the application questionnaire on the basis that those answers were not truthful and the additional allegation that the Petitioner's criminal history record both show a lack of good moral character as described in Section
561.15, Florida Statutes; however, in the course of the hearing, the Respondent's counsel asserted that the true basis of denying the license application was related solely to whether the answers which the Petitioner gave on the questionnaire were truthful concerning the subject of his criminal history record, and that the denial was not related to any criminal history per se. Therefore, this Recommended Order is rendered in keeping with the Respondent's counsel's representation and the Petitioner conducted his case to comport with that limitation.
Having established the nature of the statement of denial the question becomes one of whether the answers to question No. 6 on the personal questionnaire are of such a caliber that they demonstrated a lack of good moral character on the part of the Petitioner to the extent that he is not entitled to be the recipient of the beverage license that he has applied for.
Subsection 561.15(1), Florida Statutes, states:
561.15 Licenses; qualifications required.--
(1) Licenses shall be issued only to persons of good moral character, who are not less than 18 years of age. Licenses to corporations shall be issued only to corporations whose officers are of good moral character and not less than 18 years of age. There shall be no exemptions from the license taxes herein provided to any person, association of persons or corporation, any law to the contrary notwithstanding.
When considered in view of that standard, the facts in this case demonstrate that the Petitioner does not show the requisite good moral character expected of a person licensed by the Division of Alcoholic Beverages and Tobacco. The Petitioner's response to question No. 6, a legitimate inquiry made to him by the Respondent, ranged from equivocation to undeniable misstatements of the facts known to him and by these actions the Petitioner has shown himself to be a person not to be entrusted with a beverage license.
The Petitioner, the record will show, has had some experience as a law enforcement officer and for this reason, his counsel contended that the Petitioner would not be so bold as to erroneously answer the questionnaire, knowing that the fingerprint identification card would be the vehicle by which a successful records check could be conducted and the arrests discovered. The tone of the testimony in this case as concluded puts that theory to rest. There is, however, another view which can be asserted on the question of the significance of the Petitioner's police experience. That view is that the Petitioner indeed knew the difference between what it meant to be convicted of an offense as contrasted with being arrested, and even with this knowledge selected the course of conduct which he pursued in answering question No. 6 on the application form.
Finally, it was shown in the course of the hearing that the Petitioner had lived at certain residences in Duval County, Florida, which residence addresses are not reflected in the answers to the questionnaire and had held employment with an organization known as General Wholesale, which statement of employment is not reflected in the answers to the questionnaire. These items were first revealed at the hearing. These facts were made known subsequent to the Director's letter denying the application which was dated February 7, 1979,
and for that reason they did not constitute the basis for denying the application and have not been relied upon by the Hearing Officer in reaching the factual conclusions, conclusions of law and recommendation in this matter.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to this action and the subject matter in this cause.
Based upon a full consideration of the facts offered herein, it is concluded as a matter of law that the Director of the Division of Alcoholic Beverages and Tobacco is well founded in his denial of the Petitioner's application to transfer the Series 4-COP beverage license pertaining to the premises, Hank's Bar and Grill, in view of the fact that the Petitioner failed to answer truthfully the question No. 6 contained in the application questionnaire and this failure was of such a quality that it demonstrated a lack of good moral character on the part of the Petitioner as defined in Subsection 561.15(1), Florida Statutes.
It is recommended that the Petitioner's application for transfer of the Series 4 COP beverage license connected with the premises, Hank's Bar and Grill, be DENIED.
DONE AND ORDERED this 29th day of June, 1979, in Tallahassee, Florida.
CHARLES C. ADAMS
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1979.
Reginald E. Moore, Esquire 724 Second Avenue
Francis Bayley, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
