STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1689

) OSVALDO and ROSALBA IGLESIA d/b/a ) AIRES CONSTENOS SUPPER CLUB, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Miami, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on September 25, 1979. No appearance was entered on behalf of respondents. Petitioner was represented by counsel.

APPEARANCES

For Petitioner: Dennis E. LaRosa, Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: No appearance.

By notice to show cause, petitioner alleged that respondent "[o]n or about

17 February 1978, . . . failed to appear before . . . Peter D. Palermo, Magistrate of the United States District Court [S. D. Fla.] . . . to answer [felony] charges . . ., in violation of F.S. 561.15(2) within F.S. 561.29(1B)"; and that respondent's failure to appear violated his "moral duty" and showed him to be of bad moral character within the meaning of "the Beverage Law under F.S. 561.15(1) and (3)." At the hearing, petitioner's motion ore tenus to amend the administrative complaint in order to state another allegation was granted; and the administrative complaint is now deemed to allege that respondent forfeited a bond within the meaning of Section 561.29, Florida Statutes (1977), by failing to appear before Magistrate Palermo on February 16, 1978.

FINDINGS OF FACT

1. Petitioner issued license No. 23-1635-2COP to respondents, authorizing them to sell beer and wine for consumption on the premises. Later, on February 2, 1978, after Osvaldo Iglesia's indictment for conspiracy to import "approximately 50,000 pounds of marijuana . . . and 25 kilos of cocaine," Special Agent Harold Lierly of the federal Drug Enforcement Agency (DEA) telephones petitioner's Officer Alford, seeking assistance in apprehending Osvaldo Iglesia. Officer Alford then telephoned Osvaldo Iglesia and asked him to come to petitioner's office and to bring his driver's license with him; and notified the DEA. When Mr. Iglesia arrived, Officer Alford checked his

   identification, and DEA agent Leslie W. Thompson effected an arrest, pursuant to warrant.

   
   

2. Subsequently, Osvaldo Iglesia was released from custody upon the posting of a $150,000.00 bond. When he failed to report for his removal hearing on February 16, 1978, a bench warrant issued, Petitioner's exhibit No. 4, and the magistrate recommended bond forfeiture. Petitioner's exhibit No. 1. On February 24, 1978, a United States District Judge ordered forfeiture of the bond. Petitioner's exhibit No. 2. On April 18, 1978, a judgment of bail bond forfeiture, in the amount of $50,000.00, seems to have been entered. Petitioner's exhibit No. 3.

   
   

   CONCLUSIONS OF LAW

   
   

3. Section 561.(2), Florida Statutes (1877), forbids the issuance of a beverage license "to any person . . . who has been convicted in the last 15 years of any felony in . . . the United States. . . ." The term "conviction" for purposes of the statute is defined "to include . . . the forfeiture of a bond when charged with a crime." Since respondent's bond was forfeited when he had been charged with a felony, within the last 15 years, respondent is disqualified to hold a beverage license. Section 561.15(2), Florida Statutes (1977). The felony alleged against Osvaldo Iglesia has never been proven, but petitioner argues that his failure to appear before the magistrate makes him a person not of good moral character. The argument that a single failure to keep a court appointment shows bad moral character must be rejected, especially in the absence of a showing that the failure was intentional.

   
   

4. Petitioner is authorized to revoke a license "issued to a person, firm or corporation prohibited from obtaining such license. . . ." Section 561.15(3), Florida Statutes (1977).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED that petitioner revoke respondent's license, No. 23-1635-2COP.

DONE AND ENTERED this 9th day of October 1979 in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Dennis E. LaRosa, Esquire Staff Attorney

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Osvaldo & Rosalba Iglesia 2500 Palm Avenue Hialeah, Florida

Docket for Case No: 79-001689

Orders for Case No: 79-001689