STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLUB SHANGRI-LA, INC., d/b/a ) CODE I, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3079

) 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 December 29, 1982, in Lauderhill, Florida.

APPEARANCES

For Petitioner: Alexander M. Siegel, Esquire

505 Northwest 65th Court, Suite 102 Ft. Lauderdale, Florida 33309

For Respondent: John A. Boggs, Esquire

Staff Attorney

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

ISSUE

Whether petitioner qualifies for a II-C Club alcoholic beverage license, which is issued to Nonprofit organizations or clubs devoted to promoting community, municipal, or county development or any phase of community, municipal or county development.

BACKGROUND

By letter dated August 3, 1982, the Division of Alcoholic Beverages and Tobacco ("DABT") denied petitioner Club Shangri-La, Inc., d/b/a Code I's application for a II-C Club alcoholic beverage license, citing Section 561.20(7)(a) Florida Statutes, (1981) and Rule 7A-3.19, Florida Administrative Code. Petitioner requested a hearing on the denial and, on November 9, 1982, this case was referred to the Division of Administrative Hearings for assignment of a hearing officer.

At hearing, Petitioner ("Code I" or the "Club") presented the testimony of Thomas J. Reddick, Jr., Leroy Washington, Jr., Bessie Walton, Alice Franklin,

Willie S. Johnson, John Johnson, Charles Felder, and Tommie Troutman. Petitioner's Exhibit 1/ numbers 1-6 were received in evidence.

DABT presented no testimony, but Respondent's Exhibit numbers 1-3 were received. Posthearing proposed findings of fact were received by January 25, 1983. Those proposed findings which are incorporated herein are adopted; otherwise they are rejected as unsupported by the evidence or unnecessary to resolution of the issues. No transcript of hearing has been filed.

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

FINDINGS OF FACT

1. Code I is a nonprofit Florida corporation located at 3420-31 West Broward Boulevard, Ft. Lauderdale, Florida. In February, 1982, it applied for a II-C or Club alcoholic beverage license pursuant to Section 561.20(7)(a)3, Florida Statutes (1981) and Rule 7A-3.19, Florida Administrative Code. On August 3, 1982, DABT denied its application, asserting that it was not qualified for licensing under tie statute and rule.

   
   

2. Code I was incorporated as a Florida nonprofit corporation in 1962. Ms. Bessie Walton and her former husband formed the corporation to raise funds to build a home for the elderly. With funds subsequently generated by the corporation, Tropical Home for Senior Citizens was constructed and continues to be operated in Ft. Lauderdale, Florida. In 1974, the corporation became inactive.

   
   

3. According to several members of Code I, the goals and purposes of the Club are to support and make contributions to benevolent causes. This testimony, however, is based upon representations made to them by others concerning the goals and purposes of the Club. (Testimony of Troutman, Reddick) In the past, Code I has donated funds to numerous organizations or allowed them to use its facilities--without charge. These organizations, included Broward County Youth Football, Greater Bethel AME Church, Tropical Home for Senior Citizens, North Fork Elementary School, and Kappa Alpha Psi Fraternity (for scholarships). It has also sponsored foster families. Code I has charged, however, some organizations $175 for the use of its facilities. (Testimony of Troutman)

   
   

4. The articles of Incorporation of Code I state that the objectives of the organization are to provide a meeting place for recreational purposes of its members, to provide aid and comfort for its members in case of sickness or death, and to assist in any other matters pertaining to the highest orders of American Citizenship. For carrying out these purposes, the corporation is authorized to buy, hold and sell real and personal property, to invest funds, and to construct and operate social club houses. (P-1)

   
   

5. Neither the articles nor the bylaws of the corporation explicitly, or by reasonable inference, dedicate it to promoting community, municipal, or county development. (P-1, P-4)

   
   

6. According to its treasurer, its main purpose is to provide a facility where the public can enjoy an evening on the town in a conducive club atmosphere. Membership is open to the general public. An alcoholic beverage license would enable the Club to earn additional funds for its operations.

   CONCLUSIONS OF LAW

   
   

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

   
   

8. Section 565.02(4) , Florida Statutes, authorizes DABT to issue alcoholic beverage licenses to qualified clubs, and fraternal or benevolent organizations.

   
   

9. Section 561.20(7)(a)3, Florida Statutes (1981) provides in pertinent part:

   
   

   There shall be no limitation as to

   the number of licenses issued pursuant to s.565.02(4). However, any licenses issued under this section shall be limited to:

   * * *

   3. Nonprofit organizations or clubs devoted to promoting community, municipal, or county development or any phase of community, municipal, or county development.

   
   

10. This statute is implemented by Rule 7A-3.19, Florida Administrative Code, which provides in pertinent part:

    
    

    All clubs licensed under the

    Beverage Law must adhere to the following regulations:

    * * *

    (9) It shall be shown conclusively

    that the organization has actively pursued the purposes and objectives and goals of the charter and bylaws of that organization prior to the issuance of the club license.

    
    

11. The burden of proof is on the applicant to establish entitlement to a license. See, J. W. C. Company, Inc. v. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981). Here, Code I has shown that it has engaged in promoting community development through its contributions to benevolent organizations and a home for the elderly. Section 561.20(7)(a)3 requires, however, that a club be devoted to promoting community development. According to the dictionary, "devote" means "to dedicate by a solemn act," or "to give over. . .wholly or purposefully". Webster's New Collegiate Dictionary (1981). Thus, a club must do more than engage in promoting community development; it must be solemnly, wholly, or purposefully dedicated to that purpose. Rule 7A- 3.19(a) contemplates that such purpose be stated in the club's charter and bylaws. Since Code I's ostensible purpose, that of promoting community development, is not expressly or impliedly stated in its charter and bylaws, its application must be denied.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That Code I's application for a II-C Club alcoholic beverage license be DENIED, without prejudice to its right to reapply after amendment of its charter and bylaws.

DONE AND ORDERED this 25th day of February, 1983, 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 25th day of February, 1983.

ENDNOTE

1/ Petitioner's Exhibits will be referred to as "P- "; respondent's as "R-

."

COPIES FURNISHED:

Alexander M. Siegel, Esquire

5050 Northwest 65th Court, Suite 102 Ft. Lauderdale, Florida 33309

John A. Boggs, Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Gary Rutledge, Secretary Department of Business

Regulation

The Johns Building

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 82-003079

Orders for Case No: 82-003079