STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS W. SOLOMON, d/b/a TRAMPS, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2815

)

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Jacksonville, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R.

1. Carpenter, on March 10, 1982. The parties were represented by: APPEARANCES

   For Petitioner: James A. Fischette, Esquire

   Suite 1916 Gulf Life Tower Jacksonville, Florida 32207

   
   

   For Respondent: James N. Watson, Jr., Esquire

   725 South Bronough Street Tallahassee, Florida 32301

   
   

   This matter arose on the application for transfer of alcoholic beverage license no. 26-532, Series 4-COP. Respondent disapproved said application and Petitioner requested a hearing pursuant to Subsection 120.57(1)(b), Florida Statutes, (1981)

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner originally held alcoholic beverage license no. 26-532, Series 4-COP, as an individual. He transferred this license to M & S, Inc., a Florida corporation, about one year ago. Petitioner is a 50 percent shareholder in this corporation. Jimmy G. Maddox holds the other 50 percent stock interest.

      
      

   2. Petitioner and Maddox are currently engaged in civil litigation involving the corporate licensee. Respondent referred to this civil suit in its notice disapproving the transfer application, citing the pending litigation as a basis for disapproval.

      
      

   3. Petitioner has not purchased the license from the corporation or entered into any agreement in contemplation of license transfer. Rather, he believes he is entitled to the return of the license because he received no consideration for the prior transfer from either the corporation or Maddox. Alternatively, Petitioner asks that the prior transfer to the corporation be set aside due to this lack of consideration.

      CONCLUSIONS OF LAW

      
      

   4. Section 561.32, Florida Statutes, provides in part:

      
      

      1. Licenses issued under the provisions

         of the Beverage Law shall not be transferable except as follows:

         1. When a licensee has made a bone fide sale of the business which he is so licensed to conduct, he may obtain a

            transfer of such license to the purchaser . . .

         2. A person holding a lien against an alcoholic beverage license may have

            his rights enforced in a judicial proceeding . . .

            
            

   5. The above statute prohibits transfer of a beverage license except where there is a bone fide sale of the business or through judicial proceedings. Neither of these exceptions is applicable here. Therefore the application for transfer must be disapproved.

      
      

   6. Petitioner argues, alternatively, that no sale took place when he transferred the license from himself to the corporation and that this action should be set aside. However, the instant proceeding was convened to consider Petitioner's application for transfer to himself, and it was not contemplated that files involving this earlier transaction would be reopened. Petitioner's alternative argument is therefore rejected.

      
      

   7. Mr. Jimmy G. Maddox, through his attorney, sought to intervene at the time of hearing and by written motion thereafter. Respondent argues that such motion should be rejected as the substantial interests of the corporation are at stake and not those of shareholder Maddox. In any event, the petition for intervention comes too late. Rule 28-5.207, Florida Administrative Code, provides that such petitions must be filed at least five days prior to final hearing. The petition to intervene is therefore denied.

RECOMMENDATION

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

That Respondent enter a Final Order denying Petitioner's request for transfer of alcoholic beverage license no. 26-532, Series 4-COP.

DONE and ENTERED this 6th day of April, 1982 in Tallahassee, Florida.

R. T. CARPENTER, 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 6th day of April, 1982.

COPIES FURNISHED:

James A. Fischette, Esquire Suite 1916 Gulf Life Tower Jacksonville, Florida 32207

James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Herbert T. Sussman, Esquire 3030 Independent Life Building Jacksonville, Florida 32202

Mr. Charles A. Nuzum, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 81-002815

Orders for Case No: 81-002815