STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HURDEE M. WEATHERFORD, D/B/A ) SUTTERS MILL, )

)

Petitioner, )

)

vs. ) CASE NO. 81-3039

) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, 1/ the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on December 15, 1981, in Daytona Beach, Florida.

APPEARANCES

For Petitioner: William G. Norwich, Esquire

Post Office Box 606

Cocoa Beach, Florida 32931

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

725 South Bronough Street Tallahassee, Florida 32301

ISSUE

Whether petitioner's application for a beverage license should be disapproved on the ground that he has been convicted of illegally dealing in narcotics within the last five years.

FINDINGS OF FACT

The facts of this case are simple and undisputed:

1. Petitioner, Hurdee N. Weatherford ("petitioner") applied to the respondent, Division of Alcoholic Beverages and Tobacco ("Division"), for a 2- COP alcoholic beverage license to be issued under the name of Sutters Mill, 4345 North Atlantic Avenue, Cocoa Beach, Florida. (Testimony of Weatherford.)

   
   

2. On October 22, 1981, the Division denied petitioner's application on grounds that he had been convicted of illegally dealing in narcotics within the last five years. Petitioner requested a hearing on the Division's denial and this proceeding followed. (Testimony of Weatherford; Stipulation of Counsel.)

3. On May 20, 1980, petitioner pleaded nolo contendere to Attempted Sale of Controlled Substance, a violation of Section 893.13(1)(a)2, Florida Statutes (1979). The Circuit Court of Broward County accepted the plea and adjudged him guilty; he was fined $500 and sentenced to six months (suspended) in the county jail. (Petitioner's Exhibits 1, 2, and 3.)

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.57, Fla. Stat. (1981)

   
   

5. Section 561.15(2), Florida Statutes (1981), prohihits the Division from issuing a beverage license to any person "who has been convicted within the last past 5 years . . . of . . . illegally dealing in narcotics." Id. Petitioner argues that he is not disqualified by this language because he was convicted only of an attempt to sell a controlled substance--that an attempt falls short of "dealing in narcotics" within the ambit of Section 561.15(2), supra.

   
   

6. This contention is rejected. Petitioner was convicted of Attempted Sale of a Controlled Substance, a violation of Section 893.13(1)(a)2, Florida Statutes (1981):

   
   

   [I]t is unlawful for any person to sell a controlled substance.

   
   

   In Chapter 893, Florida Statutes (1981), "to sell" means "to deliver" something to another in exchange for money, something of value, or a promise of money or something of value. Milazzo v. State, 359 So.2d 923 (Fla. 3rd DCA 1978)., "Delivery" is defined as the actual, constructive, or attempted transfer of a controlled substance to another person. 893.02(4), Fla. Stat. (1981). Hence, under Chapter 893, one who attempts to make a transfer (or sale) is guilty of the substantive offense even though the transfer is not successful; by statutory definition, attempted sale is the same crime as sale. Milazzo, supra at 925.

   
   

7. To be disqualified from licensure, the applicant must have been convicted of "illegal dealing in narcotics," Section 561.15 (2), Florida Statutes (1981). Since "dealing" is not statutorily defined, it must be given its plain and ordinary meaning. See, American Bankers Life Assurance Company of Florida v. Williams, 212 So.2d 777 (Fla. 1st DCA 1968). The dictionary defines "dealing" as "the act of one who deals"; "to deal" means "to traffic; to trade"; to traffic or trade means "to sell." Webster's Dictionary, (1962).

   
   

8. Therefore, it is concluded that petitioner was convicted of "illegally, dealing in narcotics" within the meaning of Section 561.15(2), Florida Statutes (1981), and is statutorily disqualified from obtaining a beverage license during the five years following his conviction.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That petitioner's application for an alcoholic beverage license be denied.

DONE AND RECOMMENDED this 3rd day of February, 1982, 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 3rd day of February, 1982.

ENDNOTE

1/ Petitioner waived his right to written notice pursuant to Section 120.57(1), Florida Statutes (1981).

COPIES FURNISHED:

William G. Norwich, Esquire Post Office Box 606

Cocoa Beach, Florida 32931

James N. Watson, Jr., Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Lt. Joe Ogonowski Division of Beverage Post Office Box 688 Daytona Beach, Florida

32015 Charles A. Nuzum, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 81-003039

Orders for Case No: 81-003039