STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-221

) FUN AND FROLIC, INC., d/b/a ) HAMMER'S PACKAGE STORE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, conducted a formal hearing in this case on April 19, 1983.

APPEARANCES

For Petitioner: John A. Boggs, Esquire

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

For Respondent: John R. Harrington, Esquire

Suite 101N, Justice Building

524 South Andrews Avenue

Ft. Lauderdale, Florida 33301

ISSUE

Whether respondent's alcoholic beverage license should be revoked for violating a stipulation stated on the record in a prior license revocation proceeding.

BACKGROUND

By order dated November 22, 1982, petitioner Division of Alcoholic Beverages and Tobacco ("DABT") sought to revoke the alcoholic beverage license of respondent Fun and Frolic, Inc., d/b/a Hammer's Package Store ("respondent") for failure to comply with an alleged stipulation or consent order entered into in a Prior license revocation proceeding. Respondent requested a hearing and, on January 17, 1983, this case was forwarded to the Division of Administrative Hearings.

At hearing, DABT called Beverage Officer R. A. Boyd as its only witness; DABT's Exhibit No. 1 was received into evidence. 1/ Respondent called no witnesses and presented no direct evidence.

The transcript of hearing was filed on May 9, 1983. The parties filed proposed findings of fact by May 13, 1983. DABT also filed a motion to strike portions of respondent's posthearing memoranda, which motion is now denied.

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

FINDINGS OF FACT

1. Respondent holds alcoholic beverage license no. 16-2337, Series 2-APS and owns and operates Hammer's Package Store, the licensed premises, at 3231-A West Broward Boulevard, Ft. Lauderdale, Florida.

   
   

2. In 1981, DABT filed two administrative actions to revoke respondent's alcoholic beverage license pursuant to Section 561.29, Florida Statutes. The charges were, apparently, disputed and a hearing officer requested, since the cases were forwarded to the Division of Administrative Hearings for assignment of a hearing officer. Thereafter, on April 18, 1981, Hearing Officer Robert T. Benton, II, conducted a Section 120.57(1) hearing on the charges.

   
   

3. At hearing, both parties were represented by counsel: DABT by James N. Watson, Jr., a staff attorney for the Department of Business Regulation; respondent by Ray Russell, whose address was 200 S. E. 6th Street, Ft. Lauderdale, Florida 33301.

   
   

4. At the outset, counsel for both parties advised Hearing Officer Benton that they had reached "an agreement" (P-1, p. 3), thus obviating the need for a hearing on the charges. Counsel then recited, on the record, the terms of their settlement agreement: respondent was given 90-days in which its corporate entity could be sold, with the period beginning to run from March 19, 1981--the next day--and ending on June 16, 1981; when the corporate entity was sold or the 90-day period expired, whichever occurred first, respondent was to surrender its alcoholic beverage license to DABT for cancellation; respondent waived its right to an evidentiary hearing on the charges and to appeal any matters covered by the agreement; and, from the time the corporate entity was sold or the 90-day period for sale expired, no corporate officers, directors, or shareholders of respondent would again engage in the alcoholic beverage business, make any application for a beverage license, apply for transfer of a beverage license, or hold an interest in any business involved in the sale or distribution of alcoholic beverages. (DABT Ex. 1, p. 5-8). Without objection from respondent's counsel, DABT's counsel described the consent order (or settlement agreement) as "in the nature of a final administrative action and [respondent] acknowledges that its failure to abide by such would subject him to the provisions of Florida Statutes 120.69 (P-1, p. 6).

   
   

5. Although this settlement agreement was effective and began to operate immediately (the 90-day period for sale commenced the next day) DABT's counsel contemplated that a written and signed consent order embracing the terms of the settlement agreement would be subsequently issued. Although such follow-up action was intended, it never occurred. DABT never issued a written order, consent or otherwise, embracing the terms of the settlement agreement.

   
   

6. Hearing Officer Benton and, at least one party, thereafter relied on the settlement agreement. The hearing officer closed both Division of Administrative Hearings files, and DABT no longer prosecuted respondent under the pending charges.

7. Since June 16, 1981, the expiration of the 90-day period provided in the agreement, respondent has continued to operate its licensed alcoholic beverage premises, has failed to sell its corporate entity, and has failed to surrender its alcoholic beverage license. Respondent has presented no evidence justifying or excusing its failure to surrender its alcoholic beverage license to DABT for cancellation on or before June 16, 1981. Neither does it seek to withdraw from or set aside the settlement agreement.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.57(1), Fla.Stat. (1981).

   
   

9. Section 561.11(1), Fla.Stat. (1981), authorizes DABT to issue administrative orders to carry out the purposes of the Beverage Law. Such orders, when issued in accordance with Chapter 120, have the full force and effect of law. Id.

   
   

10. Section 561.29(1) grants DABT explicit authority to revoke or suspend alcoholic beverage licenses upon specified grounds. Finally, Section 120.57(3) provides:

    
    

    (3) Unless precluded by law, in formal disposition may be made

    of any proceeding by stipulation, agreed settlement, or consent order. (e.s.)

    
    

11. Thus, the Administrative Procedure Act explicitly authorizes agencies to resolve disputes by "agreed settlement." This is consistent with the axiom that the law favors resolution of disputes through settlement rather than litigation. Unless contrary to law or policy, settlements are upheld and enforced. They are final, conclusive, and as binding upon the parties as if embodied in a judgment. No particular formality is required; they need not be in writing. See, 15 Am. Jur. 2nd, Compromise and Settlement Sections 5, 10, 25.

    
    

12. The record in this case convincingly demonstrates that there was a bona fide dispute between the parties involving two DABT orders seeking to revoke respondent's alcoholic beverage license for alleged violations of the Beverage Law; that the dispute was resolved by agreed settlement rather than litigation; that the agreement, announced at a formal Section 120.57(1) hearing, is clear, definite, and verifiable by official transcript; and that the agreement has not been fulfilled. Within a specified time period, long since past, it required the surrender and cancellation of respondent's beverage license.

    
    

13. Respondent, disregarding the settlement, failed to surrender the license, thus cancellation never occurred. "Cancel" means to revoke or recall. Black's Law Dictionary, 259 (4th ed. 1951). Surrender of a license is not a precondition to revocation. DABT, authorized to revoke respondent's license upon proof of its original charges, is also authorized to. revoke pursuant to an agreed settlement entered to avoid a hearing on the charges.

    
    

14. No further predicate to revocation is required. Respondent has not shown that it complied with the agreement or that it should be excused or allowed to withdraw from it. The agreement is clear, conclusive, and binding.

    All that remains is to effectuate it, Therefore, in fulfillment of the agreement, and pursuant to Sections 120.57(3) and 561.11, Florida Statutes (1981), respondent's license should be revoked.

    
    

15. The parties have submitted proposed findings of fact. To the extent they are incorporated in this recommended order they are adopted; otherwise they are rejected as unsupported by the evidence or unnecessary to resolution of the issue.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That respondent's alcoholic beverage license be revoked.

DONE and ENTERED this 26th day of May, 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 26th day of May, 1983.

ENDNOTE

1/ Petitioner's Exhibit 1 will be referred to as "P-1."

COPIES FURNISHED:

John A. Boggs, Esquire Gary Rutledge, Secretary Department of Business Department of Business Regulation

Regulation 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301

John R. Harrington, Esquire Suite 101N, Justice Building

524 South Andrews Avenue

Ft. Lauderdale, Florida 33301

Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street

Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION

DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO

DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO,

Petitioner,

DOAH CASE NO. 83-221

vs. DABT CASE NOS. 33684-A

33732-A

FUN AND FROLIC, INC. d/b/a HAMMERS PACKAGE STORE,

Respondent.

/

FINAL ORDER

Pursuant to notice, R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, conducted a formal hearing in this case on April 19, 1983.

APPEARANCES

For Petitioner: John A. Boggs, Esquire

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

For Respondent: John R. Harrington, Esquire

Suite 101N, Justice Building

524 South Andrews Avenue

Ft. Lauderdale, Florida 33301 ISSUE

Whether respondent's alcoholic beverage license should be revoked for violating a stipulation stated on the record in a prior license revocation proceeding.

BACKGROUND

By order dated November 22, 1982, petitioner, the Division of Alcoholic Beverages and Tobacco (DABT) sought to revoke the alcoholic beverage license of respondent Fun and Frolic, Inc. d/b/a Hammer's Package Store (respondent) for

failure to comply with an alleged stipulation or consent order entered into in a prior license revocation proceeding. Respondent requested a hearing and, on January 17, 1983, this case was forwarded to the Division of Administrative Hearings.

At hearing, DABT called Beverage Officer R.A. Boyd as its only witness; DABT's Exhibit No. 1 (P-1) was received into evidence. Respondent called no witnesses and presented no direct evidence.

The transcript of hearing was filed on May 9, 1983. The parties filed proposed findings of fact by May 13, 1983.

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

FINDINGS OF FACT

1. Respondent holds alcoholic beverage license no. 16-2337, Series 2-APS and owns and operates Hammer's Package Store, the licensed premises, at 321-A West Broward Boulevard, Ft. Lauderdale, Florida.

   
   

2. In 1981, DABT filed two administrative actions to revoke respondent's alcoholic beverage license pursuant to Section 561.29, Florida Statutes. The charges were, apparently, disputed and a hearing officer requested, since the cases were forwarded to the Division of Administrative Hearings for assignment of a hearing officer. Thereafter, on April 18, 1981, Hearing Officer Robert T. Benton, II, conducted a Section 120.57(1) hearing on the charges.

   
   

3. At hearing, both parties were represented by counsel: DABT by James N. Watson, Jr., a staff attorney for the Department of Business Regulation; respondent by Hay Russell, whose address was 200 S.E. 6th Street, Ft. Lauderdale, Florida 33301.

   
   

4. At the outset, counsel for both parties advised Hearing Officer Benton that they had reached "an agreement" (P-1, p. 3), thus obviating the need for a hearing on the charges. Counsel then recited, on the record, the terms of their settlement agreement: respondent was given 90-days in which its corporate entity could be sold, with the period beginning to run from March 19, 1981--the next day--and ending on June 16, 1981; when the corporate entity was sold or the 90-day period expired, whichever occurred first, respondent was to surrender its alcoholic beverage license to DABT for cancellation; respondent waived its right to an evidentiary hearing on the charges and to appeal any matters covered by the agreement; and, from the time the corporate entity was sold or the 90-day period for sale expired, no corporate officers, directors, or share- holders of respondent would again engage in the alcoholic beverage business, make any application for a beverage license, apply for transfer of a beverage license, or hold an interest in any business involved in the sale or distribution of alcoholic beverages. (P-1, p. 5-8). Without objection from respondent's counsel, DABT's counsel described the consent order (or settlement agreement) as "in the nature of a final administrative action and [respondent] acknowledges that its failure to abide by such would subject him to the provisions of Florida Statutes 120.69 (P-1, p.6).

   
   

5. Although this settlement agreement was effective and began to operate immediately (the 90-day period for sale commended the next day) DABT's counsel contemplated that a written and signed consent order embracing the terms of the settlement agreement would be subsequently issued. Although such follow-up

   action was intended, it never occurred. DABT never issued a written order, consent or otherwise, embracing the terms of the settlement agreement.

   
   

6. Hearing Officer Benton and, at least one party, thereafter relied on the settlement agreement. The hearing officer closed both Division of Administrative Hearings files, and DABT no longer prosecuted respondent under the pending charges.

   
   

7. Since June 16, 1981, the expiration of the 90-day period provided in the agreement, respondent has continued to operate its licensed alcoholic beverage premises, has failed to sell its corporate entity, and has failed to surrender its alcoholic beverage license. Respondent has presented no evidence justifying or excusing its failure to surrender its alcoholic beverage license to DABT for cancellation on or before June 16, 1981. Neither does it seek to withdraw from or set aside the settlement agreement.

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 561.11(1), Florida Statutes (1981), authorizes DABT to issue administrative orders to carry out the purposes of the Beverage Law. Such orders when issued in accordance with Chapter 120, have the full force and effect of law.

   
   

   Section 561.29(1) grants DABT explicit authority to revoke or suspend alcoholic beverage licenses upon specified grounds. Finally, Section 120.57(3) provides:

   
   

   (3) Unless precluded by law, informal disposition may be made of any proceeding by stipulation, agreed settlement, or consent order. [emphasis added]

   
   

9. Thus, the Administrative Procedure Act explicitly authorizes agencies to resolve disputes by "agreed settlement." This is consistent with the axiom that the law favors resolution of disputes through settlement rather than litigation. Unless contrary to law or policy, settlements are upheld and enforced. They are final, conclusive, and as binding upon the parties as if embodied in a judgment. No particular formality is required; they need not be in writings. See, 15 Am. Jur.2d, Compromise and Settlement Sections 5, 10, 25.

   
   

10. The record in this case convincingly demonstrates that there was a bona fide dispute between the parties involving two DABT orders seeking to revoke respondent's alcoholic beverage license for alleged violations of the beverage Law; that the dispute was resolved by agreed settlement rather than litigation that the agreement announced at a formal Section 120.57(1) hearing, is clear, definite, and verifiable by official transcript; and that the agreement has not been fulfilled. Within a specified time period, long since past, it required the surrender and cancellation of respondent's beverage license.

    
    

11. Respondent, disregarding the settlement, failed to surrender the license, thus cancellation never occurred. "Cancel" means to revoke or recall. Black's Law Dictionary, 259 (4th ed. 1951). surrender of a license is not a precondition to revocation. DABT, authorized to revoke respondent license upon proof of its original charges, is also authorized to revoke despondent's license pursuant to an agreed settlement entered to avoid a hearing on the charges.

12. No further predicate to revocation is required. Respondent has not shown that it complied with the agreement or that it should be excused or allowed to withdraw from it. The agreement is clear, conclusive and binding. All that remains is to effectuate it. Therefore, in fulfillment of the agreement and pursuant to Sections 120.57() and 561.11, Florida Statutes (1981), respondent's license should be revoked.

ORDER

Based on the foregoing, it is ORDERED

That Respondent's alcoholic beverage license is hereby REVOKED.

DONE AND ORDERED this 24th day of June, 1983, at Tallahassee, Florida.

HOWARD M. RASMUSSEN, DIRECTOR

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

(904) 488-7365

Copies furnished:

John A. Boggs, Esquire 725 South Bronough Street

Tallahassee, Florida 32301

John R. Harrington, Esquire Suite 101N, Justice Building

524 South Andrews Avenue

Ft. Lauderdale, Florida 33301

R. L. Caleen, Jr.

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 83-000221

Orders for Case No: 83-000221