STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LIBERTY BANK OF CANTONMENT, )

)

Petitioner, )

)

vs. ) CASE NO. 83-255

) STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION ) OF ALCOHOLIC BEVERAGES AND )

TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on February 28, 1983, in Pensacola, Florida.

APPEARANCES

For Petitioner: Charles L. Hoffman, Jr., Esquire

SHELL FLEMING DAVIS & MENGE

Seventh Floor, Seville Tower

226 South Palafox Street Post Office Box 1831 Pensacola, Florida 32598

For Respondent: William A. Hatch, Esquire

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

ISSUES

This matter arises out of the denial or rejection of a filing by the Liberty Bank of Cantonment with the Division of Alcoholic Beverages and Tobacco for the purpose of perfecting a lien against a beverage license pursuant to Section 561.65, Florida Statutes. Mr. Charles L. Hoffman, attorney for Liberty Bank of Cantonment, testified on behalf of the Petitioner. The Petitioner offered two exhibits into evidence and both were accepted without objection.

The Respondent presented no evidence on its behalf.

Neither party filed proposed findings of fact and conclusions of law. However, the Petitioner filed a Memorandum of Law in support of its legal argument as to why it should be granted a lien against Beverage License No. 27-

426. To the extent that the legal conclusions presented in that memorandum of law and the facts stated are not adopted in this order, they are considered to be irrelevant to the issues in this cause or not supported by the facts or the law.

FINDINGS OF FACT

1. On July 10, 1981, The Rafters, Inc. executed a security agreement in favor of the Liberty Bank of Cantonment. That security agreement is a part of Petitioner's Exhibit 1 and included a security interest in State Liquor License No. 27-426 issued in the name of The Rafters, Inc.

   
   

2. On July 24, 1981, the necessary U.C.C. documents were filed in order to permit the Liberty Bank of Cantonment to file the proper documents with the Secretary of State.

   
   

3. No documents were filed with the Division of Alcoholic Beverages and Tobacco. On September 20, 1982, the Petitioner first filed the necessary documentation with the Division of Alcoholic Beverages and Tobacco for the purpose of perfecting a lien pursuant to Section 561.65, Florida Statutes.

   
   

4. The Division of Alcoholic Beverages and Tobacco rejected the filing on the grounds that it was filed beyond the 90-day period provided in Section 561.65(4), Florida Statutes. On October 19, 1982, The Rafters, Inc. filed its answer to an amended complaint in foreclosure which had been filed by the Liberty Bank of Cantonment against the property set forth in the aforementioned security agreement. In its answer, The Rafters, Inc. admitted all allegations of the amended complaint.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action

   
   

6. On July 1, 1981, Section 561.65(4), Florida Statutes became effective and required in relevant part as follows:

   
   

   In order to perfect a lien or security interest in a spirituous alcoholic beverage license which may be enforceable against the license, the party which holds the lien or security interest, within 90 days of the date of creation of tide lien or security interest, shall record the same with the Division on or with forms authorized by the Division, which forms shall require the names of the parties and the terms of the obligation.

   
   

7. Section 561.65(4), Florida Statutes, addresses the necessary procedure that a party must follow in order to perfect a lien or security interest in a beverage license and sets a specific time period of 90 days within which the party seeking to perfect a lien "shall" record the same with the Division. There is no provision within this statutory section which expressly authorizes the Division to waive the requirements of the provision.

   
   

8. There was no evidence presented nor specific law cited to the undersigned Hearing Officer which would show an authority on the part of the Division to waive the 90-day requirement.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That the Division of Alcoholic Beverages and Tobacco enter a Final Order rejecting the application for a lien filed by the Petitioner to perfect a security interest in Beverage License No. 27-426.

DONE and ORDERED this 20th day of April, 1983, in Tallahassee, Florida.

MARVIN E. CHAVIS, 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 20th day of April, 1983.

COPIES FURNISHED:

Charles L. Hoffman, Jr., Esquire Seventh Floor, Seville Tower

226 South Palafox Street Post Office Box 1831 Pensacola, Florida 32598

Harold F.X. Purnell, Esquire

William A. Hatch, Esquire General Counsel

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

Howard M. Rasmussen, Director Gary Rutledge, Secretary Division of Alcoholic Beverages Dept. of Business Regulation

and Tobacco The Johns Building

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

Docket for Case No: 83-000255

Orders for Case No: 83-000255