vs. ) CASE NO. 79-1576
Respondent. )
Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, commencing at 9:00 a.m., November 27, 1979, in Jacksonville, Florida.
For Respondent: Daniel C. Brown, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
This case concerns the entitlement of the Petitioners to be granted a Series 2-COP beverage license from the State of Florida, Division of Alcoholic Beverages and Tobacco.
The Petitioners, Emilio and Wilma Beth Toro t/a The Place In Between, are currently the holders of a Series 1-COP beverage license issued by the State of Florida, Division of Alcoholic Beverages and Tobacco. That series of license allots the Petitioners to vend beer for consumption on the premises which is located in the incorporated city of Fernandina Beach, Florida. On April 25, 1979, the Petitioners applied to the Respondent for an increase in series of license from a Series 1-COP to a Series 2-COP. A Series 2-COP license allows for the sale of beer and wine and for the consumption of those beverages on the licensed premises.
On May 22, 1979, the Director of the Division of Alcoholic Beverages and Tobacco denied the application for an increase in series. The sole ground given for such denial is that the issuance of such a license would be contrary
to Chapter 57-1601, Laws of Florida (1957), in that the provision of law prohibits the issuance of such a license. This subject law limits the number of licenses that may be issued by the Respondent in the incorporated areas of Nassau County, Florida, to the extent that only one license, of any kind or nature, shall be issued for each 4,000 persons within any incorporated city or town lying in the said county where beverages containing alcohol of core than 14 percent by weight are being sold. The population measurement is based on the last preceding Federal Census.
Within Nassau County, Florida, the Federal Census indicates that the following incorporated cities or towns are recognized in 1970. Those communities are: Boulogne City, Callahan Town, Hilliard Town, and Fernandina Beach City. Of those incorporated communities, only Fernandina Beach City exceeded the 4,000-person threshold. Fernandina Beach City had a population of 6,955 persons as reflected in the 1970 Federal Census. (See page 7 of the Respondent's Exhibit No. 2 admitted into evidence, which is a copy of the U.S. Department of Commerce, Bureau of Census, "1970 Census of Population" for the State of Florida.)
An affidavit submitted by the Respondent shows that on May 7, 1979, the records of the Respondent indicated the existence of four quota liquor licenses (Series 8-COP) and twenty-one wine licenses (Series 2-APS and Series 2-COP) within the limits of the incorporated areas of Nassau County, Florida.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.
Official notice is taken of Chapter 7A-1, Florida Administrative Code.
The Petitioners' request for a Series 2-COP beverage license should be denied. To issue that beverage license to the Petitioners would violate the terms of Chapter 57-1601, Laws of Florida (1957), in particular Section 1 of that law. The language of Section 1 is as follows:
Section 1. The number of licenses which may be granted for the sale of intoxicating beverages within the territory of any incor- porated city or town lying within the limits of Nassau County, Florida by vendors operating places of business where beverages containing alcohol of more than 14 per centum by weight are sold is hereby limited to one license,
of any kind or nature, for each four thousand (4,000) persons within any incorporated city or town lying within the limits of Nassau County, Florida, according to the last preceding Federal census, and no license, of any kind or nature, shall be issued to any applicant therefor, for the sale of intoxi- cating beverages within the territory of any incorporated city or town lying within the limits of Nassau County, Florida, containing alcohol of more than 14 per centum by weight, in excess of one license for each four thousand (4,000) persons within any such
incorporated city or town lying within the limits of Nassau County, Florida according to the last preceding Federal census.
That language limits the number of licenses of any kind or nature that would be issued by the Respondent to vendors selling beverages containing alcohol of more than 14 percent by weight to one such license for each 4,000 persons within the incorporated cities or towns of Nassau County, Florida.
The facts in this case reveal four quota liquor license, Series 8-COP, and twenty-one Series 2-APS and 2-COP licenses for the sale of beer and wine, those licenses being located in the incorporated areas of Nassau County, Florida.
The Series 8-COP liquor licenses are issued to vendors selling liquor for consumption on the premises and that liquor contains alcoholic content of more than 14 percent by weight. The twenty-one beer and wine licenses, in combination of Series 2-APS and Series 2-COP, carry the possibility that "fortified wine" might be sold under those licenses and, therefore, the beer and wine licenses of the two categories are regulated by Chapter 57-1601, Laws of Florida (1957). This conclusion is reached because "fortified wine" contains more than 14 percent of alcohol by weight, (see Subsection 564.01(2), Florida Statutes) and there being no differentiation in the issuance of beer and wine licenses between wine containing 14 percent or less of alcohol by weight and "fortified wine" containing more than 14 percent of alcohol by weight, all existing licenses to sell beer and wine in the incorporated areas of Nassau County, Florida, shall be considered in determining an applicant's entitlement to this quota license. (For clarification, the APS designation stands for the sale of a beverage by package not for consumption on the premises. The rule pertaining to license classifications is Rule 7A-1.13, Florida Administrative Code.)
In looking at the 1970 Federal Census, which is the cost recent census, the only incorporated community in Nassau County, Florida, which would be entitled to any series of alcoholic beverage license to sell such beverages containing more than 14 percent of alcohol by weight would be Fernandina Beach, Florida, which has a population of 6,955 persons. Fernandina Beach, Florida, is entitled to one license of any kind or nature to sell alcoholic beverages containing more than 14 percent by weight of alcohol. This is concluded because the subject law only allows one license for each complete increment of 4,000 persons. Fernandina Beach with a population of 6,955 constitutes one and a fraction of the necessary population count.
There are twenty-five licenses in existence in the incorporated areas of Nassau County, Florida, of the series which a1low for the sale of alcoholic beverages containing alcohol of core than 14 percent by weight and this exceeds by twenty-four the number of quota licenses authorized and to allow the Petitioners to obtain a license under these circumstances would be contrary to the restrictions found in Chapter 57-1601, Laws of Florida (1957).
It is recommended that the Director of the Division of Alcoholic Beverages and Tobacco deny the Petitioners' request for a Series 2-COP beverage license.
DONE AND ENTERED this 18th day of December, 1979, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301
Daniel C. Brown, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
