Judges: R. L. CALEEN, JR.
Agency: Department of Business and Professional Regulation
Latest Update: Sep. 28, 1983
Summary: Whether petitioner's application to change its corporate officers should be denied because the proposed officer allegedly lacks good moral character.Grant application to change corporate officers. There was no proof that the replacing man is not of good moral character.
83-0389.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE VILLAGE ZOO, INC., d/b/a ) VILLAGE ZOO, )
)
Petitioner, )
)
vs. ) CASE NO. 83-389
) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
)
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 May 11, 1983, in Lauderhill, Florida.
APPEARANCES
For Petitioner: Charles L. Curtis, Esquire
1177 S.E. 3rd Avenue
Fort Lauderdale, Florida 33316
For Respondent: John A. Boggs, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
ISSUE
Whether petitioner's application to change its corporate officers should be denied because the proposed officer allegedly lacks good moral character.
BACKGROUND
By letter of December 7, 1982, respondent Division of Alcoholic Beverages and Tobacco ("DABT") denied the application of petitioner The Village Zoo, Inc., d/b/a Village Zoo ("Village Zoo") to change corporate officers by adding James
Dowd as an assistant vice president. The Village Zoo challenged the denial and requested a Section 120.57(1) hearing.
On February 3, 1983, DABT forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was thereafter set for March 17-18, 1983, then continued and reset for May 11, 1983.
At hearing, the Village Zoo presented the testimony of Peter Balcunas, Robert Blaiky, Scott Hale, and Joannie Hayward. DABT presented the testimony of William Esler, Kelly Heatherman and T. P. Wheeler. DABT Exhibit No. 1 was received into evidence.
Posthearing proposed findings of fact were submitted by May 31, 1983. No transcript of the hearing has been filed.
Based on the evidence presented, the following facts are determined: FINDINGS OF FACT
The Village Zoo holds alcoholic beverage license no. 16-839, Series 4- COP SR, authorizing it to serve alcoholic beverages at its bar (the "licensed premises") at 900 Sunrise Lane, Ft. Lauderdale, Florida.
On September 22, 1982, the Village Zoo filed an application with DABT to change corporate officers by adding James C. Dowd as a vice president. 1/
While this application was pending, James C. Dowd was employed as one of the managers at the Village Zoo. One of his duties was to help the bartender serve alcoholic beverages on an as-needed basis.
On November 5, 1982, undercover Beverage Officer Tom Wheeler, 24, entered the licensed premises to investigate complaints of alleged sales of alcoholic beverages to underaged persons- -persons under the age of 19. He paid a cover charge at the door, his identification was not checked. Inside, he saw 50-75 young-patrons crowded in the area of the second floor bar.
Two persons were tending bar, one of whom was James C. Dowd. Officer Wheeler saw two young patrons, William Esler, 17, and Kelly Heatherman, 18, approach the bar and ordered drinks from Mr. Dowd, who then served them two alcoholic beverages. (William Esler ordered and was served a Whiskey and Seven- Up; Kelly Heatherman ordered and was served a Budweiser beer). Mr. Dowd served them these drinks without asking their age or checking their identification. When these two underaged individuals ordered the drinks, they were standing at the bar and in plain view of Mr. Dowd; they were neither standing behind others or hidden from view. After Mr. Dowd served these two drinks, he was arrested and charged with the crime of serving alcoholic beverages to persons under the age of 19. As of the date of hearing, these charges were still pending and undetermined.
When Kelly Heatherman and William Esler, the two underaged persons, entered the premises that evening, they paid a cover charge but their age was not questioned at the entry door. Neither was their identification checked.
The Village Zoo has a reputation in the community as a popular gathering place for young people. Both William Esler and Kelly Heatherman had been there before. William Esler had been there twice prior to the November 5, 1982, incident, and once since. His identification had never been checked, although he did not order a drink on his last visit. Kelly Heatherman had been there every week from approximately September to November 5, 1982. During most of his visits, he ordered alcoholic beverages. One time, his identification was checked at the door, and he was turned away. Since November 5, 1982, he has returned to the Village Zoo a couple of times. William Esler and Kelly Heatherman are still underage and are not yet 19 years old.
The Village Zoo had an announced policy prohibiting the sale of alcoholic beverages to underaged persons and prohibiting their entry onto the licensed premises. To enforce this policy, two persons were posted at the entryway to check identification and collect cover charges from patrons. Peter
Balcunas, an off-duty Fort Lauderdale policeman, was also hired to provide security and assistance to the door-checkers. He was ordinarily posted near the front door, outside the premises.
Under this Village Zoo policy, the two door-checkers had the primary responsibility to check the identification of patrons and prevent underaged persons from entering the premises. All employees, however, had the duty to check the identification of any patron if there was any question or doubt about whether the individual was of drinking age.
Both William Esler and Kelly Heatherman fall within this "questionable or doubtful" category. From their demeanor and outward appearance at hearing, it is difficult to determine their true age. Their faces are mature for their age and they could reasonably pass as 18, 19, or 20-year old's.
On the evening of November 5, 1982, Kelly Heatherman and William Esler entered the premises, walking past the door-checkers and Officer Balcunas They then proceeded to the second floor bar and ordered drinks from Mr. Dowd. Their age was not questioned and their identification was not checked.
The Village Zoo's announced policy of forbidding sale of alcoholic beverages to minors, including steps taken to enforce it, compares favorably with those of similar businesses in the area serving alcoholic beverages.
James C. Dowd, the person allegedly lacking in good moral character, has a reputation in the community as an honest, trustworthy, hardworking, and law-abiding man. He attends church regularly. His business associates view him as a man who honors his financial obligations and who has good moral character.
Mr. Dowd does not recall serving alcoholic beverages to William Esler and Kelly Heatherman on November 5, 1982. There was a crowd of customers near the bar at the time, and he was helping the bartender serve drinks as quickly as possible. Nevertheless, in his haste, he violated the Village Zoo policy. He served alcoholic beverages to two youthful-looking persons whose age was difficult to determine, without inquiring as to their age or checking their identification.
There is no evidence, however, that he knowingly and intentionally sold alcoholic beverages to underaged persons. His serving of drinks to William Esler and Kelly Heatherman can be fairly characterized as an isolated act of simple negligence. The evidence also supports a conclusion that, despite his negligent act on November 5, 1982, he is a man of good moral character.
Although there was evidence that the two underaged persons had been served alcoholic beverages at the Village Zoo prior to and after November 5, 1982, it was not shown that Mr. Dowd served them or that (as one of the managers) he was culpably responsible.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Fla.Stat. (1981).
Section 561.15(1), Florida Statutes (1981) provides in relevant part:
Licenses to corporations shall be issued only to corporations
whose officers are of good moral character and not less than 19 years of age. (e.s.)
"Good moral character," is a broad, debatable standard subject to interpretation. It is not defined by statute or DABT rule. Whether an applicant has the requisite "good moral character" has been left for case-by- case adjudication.
The courts have, however, provided some guidance in defining and applying this standard. In Zemour, Inc. v. State of Florida, Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977), the court stated:
Moral character, as used in this statute, means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to
the populace for positions of trust and confidence. An isolated unlawful act or acts of indiscretion wherever committed do not necessarily establish bad moral character. (e.s.)
In Wash & Dry Vending Company v. State, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, So.2d , Case No. 82-1442 (Fla. 3rd DCA April 12, 1983) [8 FLW 1032] the Third District Court of Appeal provided further guidance. In that case, the persons allegedly lacking good moral character had reputations as honest people who paid taxes, timely repaid loans, met their financial obligations, and kept business records as required by law. Nevertheless, DABT concluded that the prior revocation of their beverage license for negligently failing to exercise due diligence in preventing drug activity on their premises established, as a matter of law, that they lacked good moral character. The court reversed, holding, in effect, that one act of simple negligence by a person whose moral character is otherwise unassailable, is insufficient to establish lack of good moral character. There, as here, DABT presented no witnesses who controverted testimony that the applicant was an honest and trustworthy person. Neither did it affirmatively establish that he lacks moral integrity or qualities generally acceptable for positions of trust and confidence. DABT has proved only that Mr. Dowd, on one occasion, negligently served alcoholic beverages to two underaged persons in violation of Section 562.11. Such showing is insufficient to overcome the Village Zoo's prima facie evidence that Mr. Dowd is a man of good moral character. The application to change corporate officers must, therefore, be granted.
DABT argues that it would be inconsistent to bold that Mr. Dowd is entitled to status as a corporate officer of the Village Zoo, when his negligent conduct would support the filing of administrative charges against the Village Zoo's beverage license. This argument ignores the teaching of Wash & Dry Vending, and overlooks the difference between simple negligence and lack of good moral character--one does not equate to the other. An isolated act of negligence, without more, does not necessarily establish lack of good moral character. See, Wash & Dry Vending, supra.
Finally, DABT's proposed denial of the Village Zoo's application draws no support from Section 561.15(2), which prohibits issuance of a license to a person convicted (in criminal court) of violating the Beverage Law within the previous five years. Mr. Dowd, as yet, has not been convicted of violating the Beverage Law.
The parties' proposed findings of fact, to the extent they are incorporated herein are adopted; otherwise they are rejected as unsupported by the evidence, unnecessary to resolution of the issue, or mere recitation of testimony presented at hearing.
RECOMMENDATION
Based on the foregoing, it is RECOMMENDED:
That the Village Zoo's application to change corporate officers be granted. DONE and ENTERED this 29th day of June, 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 29th day of June, 1983.
ENDNOTE
1/ Village Zoo also sought to amend the previously filed sketch of its premises, but that proposed amendment is not at issue here.
COPIES FURNISHED:
Charles L. Curtis, Esquire 1177 S.E. 3rd Avenue
Fort Lauderdale, Florida 33316
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
Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages
and Tobacco
The Johns Building
725 South Bronough Street Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
DEPARTMENT OF BUSINESS REGULATIONS DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO
THE VILLAGE ZOO, INC., d/b/a VILLAGE ZOO,
Petitioner,
vs. CASE NO. 83-389
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO,
Respondent.
/
FINAL ORDER
The undersigned as Director of the Division of Alcoholic Beverages and Tobacco, after a review of the record in this matter, hereby enters this the final order of the agency as follows:
Pursuant to notice, R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, conducted a formal hearing in this case on May 11, 1983, in Lauderhill, Florida.
APPEARANCES
For Petitioner: Charles L. Curtis, Esquire
1177 Southeast 3rd Avenue
Fort Lauderdale, Florida 33316
For Respondent: John A. Boggs, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
ISSUE
Whether petitioner's application to change its corporate officers should be denied because the proposed officer lacks good moral character.
BACKGROUND
By letter of December 7, 1982, respondent Division of Alcoholic Beverages and Tobacco ("DABT") denied the application of petitioner the Village Zoo, Inc. d/b/a Village Zoo ("Village Zoo") to change corporate officers by adding James
Dowd as an assistant vice president. The Village Zoo challenged the denial and requested a Section 120.57(1) hearing.
On February 3, 1983, DABT forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was thereafter set for March 17-18 1983, then continued and reset for May 11, 1983.
At hearing, the Village Zoo presented the testimony of Peter Balcunas, Robert Blakie, Scott Hale, and Joannie Hayward. DABT presented the testimony of William Seller, Kelly Heatherman and T. P. Wheeler. DABT Exhibit No. 1 was received into evidence.
FINDINGS OF FACT
The Village Zoo holds alcoholic beverage license no. 16-839, Series 4- COP SR, authorizing it to serve alcoholic beverages at its bar (the "licensed premises") at 900 Sunrise Lane, Fort Lauderdale, Florida.
On September 22, 1982, the Village Zoo filed an application with DABT to change corporate officers by adding James C. Dowd as a vice president1.
While this application was pending, James C. Dowd was employed as one of the managers at the Village Zoo. One of his duties was to help the bartender serve alcoholic beverages on an as-needed basis.
On November 5, 1982, undercover Beverage Officer Tom Wheeler, 24, entered the licensed premises to investigate complaints of alleged sales of alcoholic beverages to underaged persons--persons under the age of 19. He paid a cover charge at the door, his identification was not checked. Inside, he saw 50-75 young patrons crowded in the area of the second floor bar.
Two persons were tending bar, one of whom was James C. Dowd. Officer Wheeler saw two young patrons, William Esler, 17, and Kelly Heatherman, 18, approach the bar and ordered drinks from Mr. Dowd, who then served them two alcoholic beverages. (William Esler ordered and was served a Whiskey and Seven- up; Kelly Heatherman ordered and was served a Budweiser beer). Mr. Dowd served
them these drinks without asking their age or checking their identification. When these two underaged individuals ordered the drinks, they were standing at the bar and in plain view of Mr. Dowd; they were neither standing behind others nor hidden from view. After Mr. Dowd served these two drinks, he was arrested and charged with the crime of serving alcoholic beverages to persons under the age of 19.
When Kelly Heatherman and William Esler, the two underaged persons, entered the premises that evening, they paid a cover charge but their age was not questioned at the entry door. Neither was their identification checked.
The Village Zoo has a reputation in the community as a popular gathering place for young people. Both William Esler and Kelly Heatherman had been there before. William Esler had been there twice, prior to the November 5, 1982, incident, and once since. His identification had never been checked, although he did not order a drink on his last visit.
Kelly Heatherman had been there every week from approximately September (1982) to November 5, 1982. During most of his visits, he ordered alcoholic beverages. One time, his identification was checked at the door and he was turned away. Since the November 5, 1982, incident, he has returned to the Village Zoo a couple of times. James C. Dowd was aware of Heatherman's continued patronage of the Village Zoo and described Heatherman as a regular customer.
Heatherman continued to order and was served alcoholic beverages during his visits to the Village Zoo after November 5, 1982. After November 5, 1982, Heatherman continued to enter the Village Zoo without having his identification checked, despite the fact he was identified to the Village Zoo and James C. Dowd, on November 5, 1982, as being under the legal age (19) to possess or consume alcoholic beverages.
Both William Esler and Kelly Heatherman were, as of the date of the administrative hearing on this case, under the age of 19 years. James C. Dowd knew or should have known that Kelly Heatherman's consumption of alcoholic beverages served by the Village Zoo after November 5, 1982, was contrary to the Beverage Law. (This paragraph contains findings of fact which are in addition to those found by the Hearing Officer. Such additional facts are not contrary to those found by the Hearing Officer, rather they amplify the same and are supported by competent, substantial evidence in the form of sworn testimony of Kelly Heatherman, William Esler and James C. Dowd).
The Village Zoo had an announced policy prohibiting the sale of alcoholic beverages to underaged persons and prohibiting their entry onto the licensed premises. To enforce this policy, two persons were posted at the entryway to check identification and collect cover charges from patrons. Peter Balcunas, and off-duty Fort Lauderdale policeman, was also hired to provide security and assistance to the door-checkers. He was ordinarily posted near the front door, outside the premises.
Under this Village Zoo policy, the two door-checkers had the primary responsibility to check the identification of patrons and prevent underaged persons from entering the premises. All employees, however, had the duty to check the identification of any patron if there was any question or doubt about whether the individual was of drinking age.
Both William Esler and Kelly Heatherman fall within this "questionable or doubtful" category. From their demeanor and outward appearance at hearing, it is difficult to determine their true age. Their faces are mature for their age and they could reasonably pass as 18, 19 or 20-year olds.
On the evening of November 5, 1982, Kelly Heatherman and William Esler entered the premises, walking past the door-checkers and Officer Balcunas. They then proceeded to the second floor bar and ordered drinks from Mr. Dowd. Their age was not questioned and their identification was not checked.
The Village Zoo's announced policy of forbidding sale of alcoholic beverages to minors, including steps taken to enforce it, compares favorably with those of similar businesses in the area serving alcoholic beverages.
James C. Dowd, the person allegedly lacking in good moral character, has a reputation in the community as an honest trustworthy, hardworking and law- abiding man. He attends church regularly. His business associates view him as a man who honors his financial obligations and who has good moral character.
Mr. Dowd does not recall serving alcoholic beverages to William Esler and Kelly Heatherman on November 5, 1982. There was a crowd of customers near the bar at the time, and he was helping the bartender serve drinks as quickly as possible. Nevertheless, in his haste, he violated the Village Zoo policy. He served alcoholic beverages to two youthful-looking persons whose age was difficult to determine, without inquiring as to their age or checking their identification.
There is no evidence that he knowingly and intentionally sold alcoholic beverages to underaged persons. (Two sentences contained in the Recommended Order at this place, were deleted as such constitute conclusions of law, not of fact). Although there was evidence that the two underaged persons had been served alcoholic beverages at the Village Zoo prior to and after November 5, 1982, it was not shown that Mr. Dowd served them or that (as one of the managers) he was culpably responsible.
CONCLUSIONS OF LAW
Section 561.15(1), Florida Statutes (1981) provides in relevant part:
Licenses to corporations shall be issued only to corporations whose officers are of good moral character and not less than 19 years
of age. (e.s.)
"Good moral character," is a broad, debatable standard subject to interpretation. It is not defined by statue or DABT rule. Whether an applicant has the requisite "good moral character" has been left for case-by-case adjudication.
The courts have, however, provided some guidance in defining and applying this standard. In Zemour, Inc. v. State of Florida, Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977), the court stated:
Moral character, as used in this statute, means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance
of the rules of right conduct, and conduct which indicates and establishes the quali- ties generally acceptable to the populace for positions of trust and confidence.
An isolated unlawful act or acts of in- discretion wherever committed do not necessarily establish bad moral character. (e.s.)
In Wash & Dry Vending Company v. State, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, So.2d , Case No. 82-1442 (Fla. 3rd DCA April 12, 1983) [8 FLW 1032] the Third District Court of Appeal provided further guidance. In that case, individuals were denied a license or permit to sell cigarettes. The basis for denial was that the individuals who sought cigarette licensure had been corporate officers of a Florida corporation whose alcoholic beverage had been revoked. The revocation of the alcoholic beverage license was based upon corporate negligence in which the individuals (those who sought cigarette licensure) were not personally involved.
In reversing DABT's denial of the cigarette license, the district court held, in effect, that simple corporate negligence could not be imputed to corporate officers who were not present during the commission of such negligence.
The evidence in the instant case, as distinguished from Wash & Dry shows James C. Dowd personally violated the Beverage Law and corporate policy by serving alcoholic beverages to minors and when the Village Zoo has a reputation as a minor's hangout. Dowd himself acknowledged that one of the underage persons (Heatherman who was still underage) continues to patronize the Village Zoo. The actions of Dowd are involved in the very area where licensure is sought which was not the case in Wash & Dry.
The testimony presented concerning Dowd's moral character can best be described as primarily limited to business relationships with employees and creditors. Peter Balcunas' knowledge of Dowd is strictly business related, as an employee of the Village Zoo (TR-32); Bob Blakie's knowledge of Dowd is limited to Blakie's status as a former wholesale beer salesman who sold beer to the Village Zoo but they have spent spare time together; and no other person testified regarding Dowd's character.
Dowd's personal violation of the Beverage Law, after warnings regarding the same, distinguishes this case from Wash & Dry and constitutes lack of good moral character required for licensure under the Beverage Law.
ORDER
Based upon the foregoing it is:
ORDERED that the license application of the Village Zoo, Inc. d/b/a The Village Zoo to add James C. Dowd as an assistant vice president is DENIED.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of September, 1983.
HOWARD M. RASMUSSEN, Director
Department of Business Regulation Division of Alcoholic Beverages
and Tobacco
725 South Bronough Street Tallahassee, Florida 32301
COPIES FURNISHED:
Charles L. Curtis, Esquire 1177 Southeast 3rd Avenue
Fort Lauderdale, Florida 33316
John A. Boggs, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
R. L. Caleen, Jr.
Hearing Officer
2009 Apalachee Parkway
Tallahassee, Florida 32301
Docket for Case No: 83-000389
Orders for Case No: 83-000389
| Issue Date |
Document |
Summary |
|
Sep. 26, 1983 |
Agency Final Order
|
|
|
Jun. 29, 1983 |
Recommended Order
|
Grant application to change corporate officers. There was no proof that the replacing man is not of good moral character.
|
