STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES S. METZCUS, JR., t/a ) THE LAKESIDE CAFE, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2106

) 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., held a formal hearing in this case on September 8, 1982, in Miami, Florida.

APPEARANCES

For Petitioner: Paul J. Kneski, Esquire

Westland Executive Square

1575 West 49th Street, Suite 115

Hialeah, Florida 33012

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

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

ISSUE

Whether the Division of Alcoholic Beverages and Tobacco is estopped from denying petitioner's application for a transfer of a special restaurant license.

BACKGROUND

Petitioner Charles S. Metzcus, Jr., t/a the Lakeside Cafe's ("Applicant") application for transfer of a special restaurant alcoholic beverage license was denied by respondent Division of Alcoholic Beverages and Tobacco ("DABT") for failure to meet the seating and square footage requirements of Section 561.20 (2)(b) Florida Statutes (1981) and Rule 7A-3.15, Florida Administrative Code.

Applicant requested a hearing on DABT's denial and, on July 29, 1982, this case was referred to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was thereafter set for September 8, 1982.

At hearing, Applicant offered Petitioner's Exhibits 1/ No. 1 through 3 into evidence. DABT called H. Kennedy as its witness and offered Respondent's

Exhibit 1/ No. 1 into evidence. At the outset, counsel stipulated to the essential facts of this case.

The parties filed proposed findings of fact by September 20, 1982. A transcript of hearing has not been filed.

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

FINDINGS OF FACT

1. In December, 1981, Applicant applied for transfer of alcoholic beverage license no. 23-02433, 4-COP SRX, a special restaurant license held by Charlies the Lakes Restaurant, Inc. & Willman Co.. DABT denied the application, contending that the licensed premises did not meet minimum seating or square footage requirements. (P-1, letter of denial dated April 8, 1982).

   
   

2. The licensed premises, known as the Lakeside Cafe, is located at 6125 Miami Lakes Drive, Miami Lake percent, Florida. It has less than 4,000 square feet of service area and is able to seat less than 200 patrons at tables. (P-1, R-1 Stipulation of counsel)

   
   

3. Applicant contends that since DABT granted a special restaurant license (4 COP-SRX) to the present and previous licensees, it is now estopped to deny the application. Although DABT has continuously granted such a license, license applicants have twice filed affidavits indicating that the licensed premises meets square footage and seating requirements. In 1976 and 1980 two separate applicants filed sworn affidavits stating that the licensed premises occupied 4,000 or more square feet of floor space and could accommodate 200 or more patrons at tables.

   
   

4. On November 17, 1981, Applicant signed an agreement to purchase the licensed premises from the present licensee for $210,000.00. Under that agreement, the present licensee was required to transfer its interest in the beverage license to applicant. (P-3)

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.57(1), Florida Statutes (1981).

   
   

6. In licensing proceedings, the applicant must prove its entitlement to the requested license. See, J.W.C., Inc. v. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981).

   
   

7. In order to qualify for a special restaurant alcoholic beverage license, Applicant must show that he can serve at least 200 patrons at tables and that he has at least 4,000 square feet of floor space. 561.20 (2)(b) Fla. Stat. (1981); Chapter 71-862, Laws of Fla. (1971); Rule 7A-3.15 (3) Florida Administrative Code. Applicant concedes that she does not meet these criteria but contends that DABT is equitably estopped from denying the application.

   
   

8. Although under certain circumstances the state may be estopped, "such circumstance must be exceptional and must include some positive act on the part of some officer of the state upon which the aggrieved party had a right to rely and did rely to its detriment. Greenhut Construction Co. v. Knott, 247 So.2d

   517, 524 (Fla. 1st DCA 1971). Further, the state cannot be estopped by unauthorized acts of its officers.Id. A party claiming estoppel must satisfy three essential elements:

   
   

   "* * * '(1) a representation by the party estopped to the party claiming the estoppel as to some material fact, which representation is contrary to the condition of affairs later asserted by the estopped party; (2) a reliance upon this representation by the party claiming the estoppel; and (3) a change in the position of the party claiming the estoppel to his detriment, caused by the representation and his reliance thereon.'"(e.s.)

   
   

9. Here, Applicant has not shown that any DABT employee made a representation of fact upon which he relied to his detriment. Essentially, Applicant contends that he was misled by DABT's prior licensing actions into believing that the premises qualified for a special restaurant license. But this is a question of law, not of fact. The state cannot be estopped by mistaken statements of law. Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977); Accord, Cirnigliaro v. Florida Police Standards and Training Commission,

   409 So.2d 80 (Fla. 1st DCA 1982). Furthermore, a government agency cannot be estopped from enforcing the statutes within its charge by its mistaken issuance of a license. See, Dade County v. Bengis Associates, 257 So.2d 291 (Fla. 3rd DCA 1972)

   
   

10. Since the application does not meet licensing criteria, and the elements of estoppel have not been satisfied, the application for transfer of the special restaurant license must be denied.

    
    

11. The parties' proposed findings of fact which are incorporated in this recommended order are adopted. Otherwise, they are rejected as unsupported by the evidence or unnecessary to resolution of the issues presented.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That Applicant's application to transfer license No. 23-02433, 4-COP SRX, be DENIED.

DONE and RECOMMENDED this 16th day of November, 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 16th day of November, 1982.

ENDNOTE

1/ Petitioner's Exhibits will be referred to as "P-1," "P-2," etc; respondent's Exhibit will be referred to as "R-1."

COPIES FURNISHED:

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

J. Maurice Finkel, Esquire Roberts Building

28 West Flagler Street Miami, Florida 33130

Captain John Harris Division of Beverage 1350 Northwest 12 Avenue

Miami, Florida 33136

Docket for Case No: 82-002106

Orders for Case No: 82-002106