STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNIE EVANS BROADWAY, D/B/A ) DISCO JUNCTION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2634

) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., conducted a formal hearing in this case on November 17, 1981, in Lauderhill, Florida.

APPEARANCES

For Petitioner: Janice G. Scott, Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Annie Evans Broadway, pro se

1620 Hammondville Road Pompano Beach, Florida 33060

ISSUE

Whether petitioner's application for a beverage license should be denied on the ground that she was convicted of a beverage law violation within the past five years.

BACKGROUND

By letter dated June 10, 1981, respondent Division of Alcoholic Beverages and Tobacco ("Division") notified petitioner Annie Evans Broadway, d/b/a Disco Junction ("Applicant"), that her application for a beverage license was denied because she had been convicted of a beverage violation within the past five years.

On June 27, 1981, Applicant requested a hearing on the Division's denial of her application. The Division granted her request and forwarded this case to the Division of Administrative Hearings on October 21, 1981. By notice dated October 27, 1981, hearing was set for November 17, 1981.

At hearing, Applicant testified in her own behalf and called William Piroth, a Pompano Beach police officer, as a witness; she offered Petitioner's Exhibit No. 1 into evidence. The Division called Richard Boyd, a beverage officer, as its witness and offered Respondent's Exhibit 1/ Nos. 1 and 2 into evidence.

After the hearing, neither party filed proposed findings of fact and conclusions of law.

Based on the evidence presented, the following facts are determined:

FINDINGS OF FACT

1. In April, 1981, Applicant applied to the Division for a 2-COP alcoholic beverage license. If granted, the license will allow her to sell beer and wine for consumption on the premises of her business, Disco Junction, located at 1702 Hammondville Road, Pompano Beach, Florida. (R-2.)

   
   

2. Court records indicate that, by judgment dated January 22, 1981, Applicant was convicted by the County Court of Broward County on three charges of selling liquor without a license. She was sentenced to 90 days' probation and required to pay certain fines, contributions, and costs. These beverage law violations constitute the sole ground for the Division's denial of her license. (Testimony of Boyd; R-1.)

   
   

3. In December, 1980, Applicant met William Piroth, a Pompano Beach police officer. He is assigned to investigate crimes committed in the area of Pompano Beach where she seeks to operate her business establishment. Since December, 1980, she has assisted him by providing information concerning criminal activity in the area. If she is licensed, she has promised to continue doing so. (Testimony of Broadway, Piroth.)

   
   

4. Based on her help in the past and her promise of continued assistance in the future, Officer Piroth asked the Broward County Court to set aside her earlier conviction so that she would be able to qualify for a beverage license. The court granted his request and, by order rendered on August 25, 1981, set aside its earlier judgment and withheld adjudication. (Testimony of Piroth;

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.57(1), Fla. Stat. (1979).

   
   

6. An applicant has the burden of establishing entitlement to the requested license. 28-6.08(3), F.A.C.

   
   

7. Section 561.15, Florida Statutes, provides, in pertinent part:

   
   

   (2) No license under the Beverage Law shall be issued to any person who has been convicted within the last past five years of any offense against the beverage laws of this state . . . .

   
   

8. The Division sought to deny Applicant's license based on her beverage law conviction. That conviction and judgment of guilt has now been set aside and adjudication has been withheld; thus, the issuance of the requested beverage

license to Applicant is no longer proscribed by Section 561.15, supra. Accordingly, there being no other basis for denial of her application, Applicant is entitled to issuance of the requested beverage license.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Applicant's request for a beverage license be GRANTED.

DONE AND ORDERED this 1st day of December, 1981, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1981.

ENDNOTE

1/ Petitioner's and Respondent's Exhibits will be referred to as "P- ," and "R- ," respectively.

COPIES FURNISHED:

Janice G. Scott, Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Annie Evans Broadway 1620 Hammondville Road

Pompano Beach, Florida 33060

Charles A. Nuzum, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Richard A. Boyd Division of Beverage Post Office Box 8276

Lauderhill, Florida 33310

Docket for Case No: 81-002634

Orders for Case No: 81-002634