STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOSE MANUEL CAMINO, d/b/a )
TORREMOLINOS RESTAURANT, )
)
Petitioner, )
)
vs. ) CASE NO. 83-390
) STATE OF FLORIDA, DEPARTMENT ) OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
)
Respondent. )
)
RECOMMENDED ORDER
The Division of Administrative Hearings, by its duly designated Hearing Officer, Arnold H. Pollock, held a formal hearing in this case in Miami, Florida, on June 14, 1983.
APPEARANCES
For Petitioner: Dennis E. LaRosa, Esquire
516 North Duval Street Tallahassee, Florida 32301
For Respondent: Janice G. Scott, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
ISSUE
Whether Petitioner's application for an alcoholic beverage license, 4-COP, SRX, should be granted or denied on the grounds stated in Respondent's letter of denial dated December 9, 1982.
BACKGROUND
On September 9, 1982, Petitioner prepared and signed an application for alcoholic beverage license (DBR, Form 700L), which was received in the Office of the State Beverage Department in Miami, Florida, on September 14, 1982. On December 9, 1982, by form letter, the Director of the Florida Division of Alcoholic Beverages and Tobacco, Charles A. Nuzum, forwarded a letter of denial to Petitioner stating that the application was incomplete in that applicant had failed to provide complete financial documentation. An additional basis for denial was that documentation submitted was not consistent with information contained on the application. Thereafter, on December 16, 1982, the Petitioner, in a letter to Mr. Nuzum, requested a formal hearing under the provisions of Sections 561.18 and 120.62, Florida Statutes.
At the hearing, Petitioner presented the testimony of Sgt. Jorge Herrera and Oreste Hernandez, as well as Exhibit Numbers 1-6. Respondent presented the testimony of Juanita Loud and Exhibits A-F. Joint Composite Exhibit Number 1, a copy of Petitioner's application and allied papers, was admitted into evidence as well.
FINDINGS OF FACT
Alcoholic beverage license No. 23-4572, 4-COP, SRX, was, at all times pertinent hereto, held in the name of Cafe del Sol, Inc., whose stockholders, officers and directors were Oreste Hernandez and Egidio F. Balzola.
On or about September 14, 1982, Petitioner Jose Manuel Camino and his wife, Ofelia Camino, purchasers of the stock of Cafe del Sol, Inc., referenced above, submitted an application for approval of a change of stockholders, officers and directors of the said corporation from the former owners to the Petitioners. This application was submitted to the Miami Office of the Division of Alcoholic Beverages and Tobacco. The application and accompanying documents reflected that Petitioners, Mr. and Mrs. Camino, were purchasing all of the stock of Cafe del Sol, Inc., with each to own 50 percent of the outstanding shares. The documentation submitted further reflected that Jose Camino would be president of the corporation and his wife, Ofelia, would be secretary-treasurer.
The personal questionnaire (DBR, Form 710L) for each individual attached to the application reflected that the total purchase price of the business was to be $12,000 cash. None of the purchase price was to be in the form of mortgages or other loans held by the seller. The questionnaire form in both cases reflected the $12,000 was coming from two loans from the Republic National Bank of Miami, which, taken together, totaled $45,000.
According to the stock purchase agreement dated June 24, 1982, between Messrs. Hernandez and Balzola (sellers) and the Caminos (buyers) the capital of the corporation consisted of 7,500 shares of common stock ($1 par value), 500 shares of which were issued and outstanding, 50 percent to each of the sellers. The purchase price was to be split, however, $10,000 to Mr. Balzola and $2,000 to Mr. Hernandez. On June 24, 1982, the date of the stock purchase agreement, which called for the buyers to assume responsibility for all debts of the corporation, Mr. Hernandez was listed as president of the corporation and Mr. Balzola as secretary-treasurer.
Also on June 24, 1982, three share-certificates in the corporation Cafe del Sol, Inc., bearing Numbers 6, 7 and 8, were issued. Numbers 6 and 7 issued to Jose Camino, each in the amount of 250 shares, bore the signature of Jose Camino as both president and secretary-treasurer. The third certificate, numbered 8,in the name of Ofelia Camino, in the amount of 500 shares, bore the signature of Jose Camino as president and Ofelia Camino as secretary-treasurer.
These three share-certificates which contained inconsistencies on their faces, were attached to Petitioner's application, which was submitted on September 14, 1982.
Also attached to Petitioner's application when submitted was the resignation of Mr. Hernandez as president and director of Cafe del Sol, Inc., dated June 24, 1982, and the resignation of Mr. Balzola as director and secretary-treasurer, dated February 24, 1982. Nothwithstanding this, according to the stock purchase agreement dated June 24, 1982, Mr. Hernandez was still
listed as president and director as of that date, and Mr. Balzola was listed as director and secretary-treasurer as of that date; even though Mr. Balzola had ostensibly resigned on February 24, some four months previously. Additionally, a waiver of notice of special meeting of the board of directors of Cafe del Sol, Inc., dated January 24, 1982, reflects that Jose Camino was a director as of that date even though the stock purchase agreement dated five months later failed to reflect him as a director.
Another document attached to the application when it was received by the Respondent on September 14, 1982, was a copy of the 1982 corporation annual report for Cafe del Sol, Inc.; which reflected Messrs. Hernandez and Balzola as director and officers, solely, but listed Mr. Camino as the new registered agent effective June 24, 1982. This annual report which bears the signature of Mr. Hernandez and an illegible date was, however, filed with the Division of Corporations, Florida Secretary of State, in its Miami Office, on September 1, 1982, long after the purported resignation of Messrs. Hernandez and Balzola as officers and long after the transfer of stock interest from them to the Caminos.
Another series of documents attached to the Petitioner's application at the time it was filed were the two notes in favor of the Republic National Bank of Miami in the amount of $25,000 and $20,000, respectively, which were listed in the personal questionnaires attached to the application by the Petitioner and his wife. The note in the amount of $25,000 is dated February 24, 1982, and is signed by both Jose and Ofelia Camino and reflects that the security for the payment of the note is an open second mortgage. The other note in the amount of
$20,000 was dated July 19, 1982, almost a month after the stock transfer agreement, and is signed for Cafe del Sol, Inc., by Jose Camino and Mr. Hernandez, who had ostensibly divested himself of ownership and/or directorship well prior to this time. The application and the allied papers submitted therewith contained on their faces, several substantial inconsistencies which gave rise to several questions which required answers in the processing of the application.
When submitted, the license application was processed through the Miami District Office of the Division of Alcoholic Beverages and Tobacco. According to Sgt. Jorge Herrera, the licensing supervisor for the Miami office, upon receipt, the Petitioner's application looked like a completed application. When an application in a completed form is received, a date stamp reflecting date and time of receipt is placed thereon. The date stamp appears on not only the application form but both personal questionnaires attached thereto in this case.
The purpose of the application process is to permit the Division of Alcoholic Beverages and Tobacco to ascertain if the applicants have been convicted of a felony, own an interest in other licenses of this nature, own an interest in other business which relates to other areas of the beverage industry and whether other individuals than the applicant appear to be able to have an interest in the license through sources of financing. In the event an application is received which is incomplete, or which is questionable, the application must be verified either through direct contact with the applicant, or through other sources.
In the instant case, the stock purchase agreement bears a date stamp the same date as the application. The investigative file also contains stock certificates, and the accuracy of the stock record book is important to show all owners of the business and their proportionate ownership, to ensure there are no hidden owners.
The Division has 90 days to fully investigate applications. Requests for further information are generally made in writing, unless the applicant can be contacted to be questioned verbally.
The Petitioner's application and the allied documents were assigned for review and investigation to Beverage Officer Juanita Loud. As a result of what Officer Loud felt to be several deficiencies in her initial review of the application, on October 6, 1982, she met with Mrs. Camino at the Cafe del Sol Restaurant. After advising Officer Loud that Mr. Balzola was paid $25,000 for the purchase of his shares of the corporation, Mrs. Camino was surprised to learn that the documentation submitted with the application reflected that the only owner of stock in the corporation was her husband Jose, and that she did not hold title to any of it. In fact, Mrs. Camino had very little information to tell about any of the inconsistencies brought out in the paragraphs above. Because of this, Officer Loud asked Mrs. Camino where she could contact her husband. Parenthetically, one of the questions Officer Loud needed the answer to was the work address of Petitioner Jose Camino which was left unanswered on the application form. Since at that time, October 6, 1982, Mr. Camino was out working on a construction project, Mrs. Camino tried to contact him, but could not. Mrs. Camino advised Officer Loud that she would try to get her husband to call Officer Loud and also referred Loud to the license broker with whom they had dealt, a Mr. Valdez.
When Officer Loud returned to her office, she prepared a letter, dispatched on October 7, 1982, to Mr. Camino, verifying the questions which she needed answered prior to October 12, 1982. She also contacted Mr. Valdez by phone several days later. During this conversation, Mr. Valdez agreed to meet with Officer Loud and to bring in the corporate ledger. A meeting was set for October 11, 1982, and Officer Loud advised Mrs. Camino by phone of when and where the meeting was to be held. However, neither Mrs. Camino nor Mr. Valdez appeared as scheduled. The meeting was thereafter scheduled for October 12, 1982, at Mr. Valdez' request. Neither he nor Mrs. Camino showed up for the second meeting.
On October 13, 1982, Mr. Valdez appeared at Officer Loud's office, bringing with him the corporate ledger. Officer Loud was permitted to look at the record book, but it was not left with her. During the course of this meeting, officer Loud discussed the inconsistencies outlined above with Mr. Valdez. Mr. Valdez either could not or would not explain the inconsistencies. When Officer Loud asked him about the purchase price of $25,000 as stated by Mrs. Camino, Mr. Valdez indicated that Mrs. Camino was in error and that the purchase price was only $12,000. When Officer Loud asked Mr. Valdez about other possible interests or investments, Mr. Valdez indicated it was none of the Division's business what the Caminos did with their money, and he would not provide any further information on that subject.
Approximately a day or so later, Officer Loud again called Mrs. Camino indicating she needed more information to process the application. Neither Mrs. Camino nor her husband ever came into the office to provide it. However, after Loud's report was submitted to her supervisor, Sgt. Herrera, recommending disapproval because of the unresolved inconsistencies and questions, and final disapproval was entered on January 13, 1983, additional information was submitted to Sgt. Herrera by the Caminos and by Mr. Valdez. After review of this additional information, Officer Loud had a meeting with the Caminos on January 17, 1983, at which the services of an interpreter were utilized to insure there was no misunderstanding of the substance of the conversation. At
this meeting, a request was made by Officer Loud for clarification of the still remaining inconsistencies, but neither Petitioner nor his wife could provide reasons for these defects. Though Mr. Camino recognized his signature on the documents presented to him, he could explain very little else. His explanation was that he had signed many of these forms on the advice of someone else, either Mr. Valdez or his attorney Mr. Silver, but could not remember when or why he signed them.
After this meeting with the Caminos, some further documents were submitted, including an Affidavit dated January 13, 1983, signed by the Caminos, which purported to explain the majority of the inconsistencies. However, according to Officer Loud, it did not do so. For example, as to the stock discrepancies (all being issued to Jose), the affidavit indicated that there was an additional certificate No. 8, for an additional 500 shares issued to Mrs. Camino on June 24, 1982, the same date the other two certificates were issued to Mr. Camino. However, according to Officer Loud, when Mr. Valdez brought the stock ledger to her office on January 13, 1983, stock certificate No. 8 was not filled out. She saw it uncompleted in the book. Additionally, certificate Nos.
6 and 7 reflected Jose Camino as secretary-treasurer and Number 8 showed Mrs. Camino as secretary-treasurer, but there were no supporting documents in the corporate minutes to explain this inconsistency. Further, certificate No. 8 in the amount of 500 shares and certificate Nos. 6 and 7 for 250 each would total 1,000 shares. However, the stock purchase agreement indicated that only 500 shares were issued on June 24, 1982. In other words, the explanation of an inconsistency created another inconsistency, and when the Caminos were asked about these subsequent inconsistencies, they could not explain them. Further, the affidavit statement that the Caminos knew nothing about the inconsistency in the annual report is not a satisfactory explanation to satisfy the Division.
In an effort to resolve the inconsistencies, Officer Loud met with Mr. Hernandez once before the application was denied, but Mr. Hernandez could not clarify any of the inconsistencies either.
According to Officer Loud, there were too many inconsistencies that were not satisfactorily explained. There were and are too many questions unanswered. The lack of knowledge expressed by the Caminos was not sufficient explanation of the unanswered questions, and it appeared as well after several tries that no further usable explanation was or would be forthcoming. Had any information been forthcoming, it would have been examined, considered, and if possible, utilized by Officer Loud in support of the application. As it was, based upon further review of the Petitioner's application and the supplemental documentation submitted, Officer Loud could not in good conscience alter her original recommendation of disapproval of Petitioner's application.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over tone parties and the subject matter of this proceeding.
In licensing proceedings, the applicant must establish his entitlement to the requested license. J.W.C. Co. v. Department of Transportation, 392 So.2d 778 (Fla. 1 DCA 1981)
Petitioner here was denied licensure on the basis that the application did not provide complete financial documentation as well as the fact that the documentation submitted was inconsistent with the application. Section 561.15(1), Florida Statutes (1981), states that:
Licenses shall be issued only to persons
of good moral character who are not less than
19 years of age. Licenses to corporations shall be issued only to corporations whose officers are of good moral character and not less than 19 years of age. There shall be no exemptions from the license taxes herein provided to any person, association of persons, or corporation, any law to the contrary notwithstanding.
To determine the good character of the corporate officers, an investigation is called for under the provisions of Section 561.18, Florida Statutes (1981), which provides:
After the application has been filed with the local district office supervisor, the district supervisor shall cause the application to be fully investigated, both as to qualifications of the applicants and a manager or person to be in charge and the premises and location sought to be licensed, except that, in the event of any licenses issued pursuant to Section 561.19(2), the division shall cause only those applications selected by public drawing in the order selected to be fully investigated.
Subsection 561.19(1), Florida Statutes (1981), permits the issuance of the license upon approval of the Division after completion of the investigation.
Even though Sgt. Herrera testified initially that he received what bore the stamp of a complete application from the Respondent, further review of the documentation by Officer Loud, the individual charged with the actual investigation into its accuracy, revealed that it was not in any way sufficiently complete to support approval action. An application is not complete until sufficient information is furnished to the Division to enable it to conduct an effective investigation with a view toward meeting the criteria set forth in the aforementioned findings of fact herein. When the documentation submitted is insufficient to supply the Division with the necessary information, the Division is unable, under the law, to approve the application, Sans Souci v. Florida Division of Land Sales and Condominiums, 421 So.2d 623 (Fla. 1 DCA 1982) and ABC Liquors v. Department of Business Regulation, 397 So.2d 696 (Fla. 1 DCA 1981).
The testimony of Sgt. Herrera and Officer Loud clearly established the failure of the Petitioner to provide sufficient information to the Division to allow it to effectively, and for the purposes set out, investigate the application. The affidavit submitted after the application failed to provide sufficient additional information, nor did the additional documentation submitted at the hearing.
As a complete application is one which does not contain material inconsistencies, and which provides sufficient documentation to allow the agency to make adequate inquiry into the onwership and financing arrangements of the proposed license, the failure to provide that information necessary to permit
the agency to do that, as we see is the case here, leads to the inescapable conclusion that the application submitted by Petitioner was incomplete at the time of submission and was not made complete by any further presentation of requested information.
Since Section 561.18, Florida Statutes (1981) establishes the statutory authority for disapproval of an incomplete application; since this application has been clearly shown to be incomplete in many particulars; since the applicants were repeatedly afforded the opportunity to, and were solicited to, submit further clarifying and supporting documentation and failed to do so; and since the Division was thereby unable to fully investigate the application as called for by the statute, the application must be, as it was here, disapproved.
The Respondent has submitted a proposed recommended order which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.
On the basis of the facts and conclusions above, it is RECOMMENDED:
That Petitioner's application for approval of transfer of interest in alcoholic beverage license No. 23-4572, 4-COP, SRX, be denied.
RECOMMENDED this 13th day of July, 1983, in Tallahassee, Florida.
ARNOLD H. POLLOCK, 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 13th day of July, 1983.
COPIES FURNISHED:
Dennis E. LaRosa, Esquire
516 North Duval Street Tallahassee, Florida 32301
Mr. Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Janice G. Scott, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Mr. Howard M. Rasmussen, Director Division of Alcoholic Beverages
and Tobacco
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Harold F. X. Purnell, Esquire General Counsel
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ALCOHOLIC BEVERAGE AND TOBACCO
JOSE MANUEL CAMINO, d/b/a TORREMOLINOS RESTAURANT,
Petitioner,
vs. DOAH CASE NO. 83-390
DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO,
Respondent.
/
FINAL ORDER
The Division of Administrative Hearings, by its duly designated Hearing Officer, Arnold H. Pollock, held a formal hearing in this case in Miami, Florida, on June 14, 1983.
APPEARANCES
For Petitioner: Dennis E. LaRosa, Esquire
615 North Duval Street Tallahassee, Florida 32301
For Respondent: Janice G. Scott, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
ISSUE
Whether Petitioner's application for an alcoholic beverage license, 4-COP, SRX, should be granted or denied on the grounds stated in Respondent's letter of denial dated December 9, 1982.
BACKGROUND
On September 9, 1982, Petitioner prepared and signed an application for alcoholic beverage license (DBR, Form 700L), which was received in the Office of the State Beverage Department in Miami, Florida, on September 14, 1982. On December 9, 1982, by form letter, the Director of the Florida Division of Alcoholic Beverages and Tobacco, Charles A. Nuzum, forwarded a letter of denial to Petitioner stating that the application was incomplete in that the applicant had failed to provide complete financial documentation. An additional basis for denial was that documentation submitted was not consistent with information contained on the application. Thereafter, on December 16, 1983, the Petitioner, in a letter to Mr. Nuzum, requested a formal hearing under the provisions of Sections 561.18 and 120.62, Florida Statutes.
At the hearing, Petitioner presented the testimony of Sgt. Jorge Herrera and Oreste Hernandez, as well as Exhibit Numbers 1-6. Respondent presented the testimony of Juanita Loud and Exhibits A-F. Joint Composite Exhibit Number 1, a copy of Petitioner's application and allied papers, was submitted into evidence was well The Recommended Order of the Hearing Officer was received July 15, 1983. No exceptions to said Order were filed.
FINDINGS OF FACT
Alcoholic beverage license No. 23-4572, 4-COP, SRX, was, at all times pertinent hereto, held in the name of Cafe del Sol, Inc., whose stockholders, officers and directors were Oreste Hernandez and Egidio F. Balzola.
On or about September 14, 1982, Petitioner Jose Manuel Camino and his wife, Ofelia Camino, purchases of the stock of Cafe del Sol, Inc., referenced above, submitted an application for approval of a change of stockholders, officers and directors of the said corporation from the former owners to the Petitioners. This application was submitted to the Miami Office of the Division of Alcoholic Beverages and Tobacco. The application and accompanying documents reflected that Petitioners, Mr. and Mrs. Camino, were purchasing all of the stock of Cafe del Sol, Inc., with each to own 50 percent of the outstanding shares. The documentation submitted further reflected that Jose Camino would be president of the corporation and his wife, Ofelia, would be secretary-treasurer.
The personal questionnaire (DBR, Form 710L) for each individual attached to the application reflect that the total price of the business was to be $12,000 cash. None of the purchase price was to be in the form of mortgages or other loans held by the seller. The questionnaire form in both cases reflected the $12,000 was coming from two loans from the Republic National Bank of Miami, which, when taken together, totaled $45,000.
According to the stock purchase agreement dated June 24, 1982, between Messrs. Hernandez and Balzola (sellers) and the Caminos (buyers) the capital of the corporation consisted of 7,500 shares of common stock ($1 par value), 500 shares of which were issued and outstanding, 50 percent to each of the sellers. The purchase price was to be split, however, $10,000 to Mr. Balzola and $2,00 to Mr. Hernandez. On June 24, 1982, the date of the stock purchase agreement, which called for the buyers to assume responsibility for all debts of the corporation, Mr. Hernandez was listed as president of the corporation and Mr. Balzola as secretary-treasurer.
Also dated June 24, 1982, were three share-certificates in the corporation Cafe del Sol, Inc., bearing Numbers 6, 7 and 8. Number 6 and 7 issued to Jose Camino, each in the amount of 250 shares, bore the signature of Jose Camino as both president and secretary-treasurer. The third certificate, numbered 8, in the name of Ofelia Camino, in the amount of 500 shares, bore the signature of Jose Camino as president and Ofelia Camino as secretary-treasurer.
Of these three share-certificates which contained inconsistencies on their faces, the record reflects that Numbers 6 and 7 were attached to Petitioner's application, which was submitted on September 14, 1982.
Also attached to Petitioner's application when submitted was the resignation of Mr. Hernandez as president and director of Cafe del Sol, Inc., dated June 24, 1982, and the resignation of Mr. Balzola as director and secretary-treasurer, dated February 24, 1982. Notwithstanding this, according to the stock purchase agreement dated June 24, 1982, Mr. Hernandez was still listed as president and director as of that date, and Mr. Balzola was listed as director and secretary-treasurer as of that date, even though Mr. Balzola had ostensibly resigned on February 24, some four months previously. Additionally, a waiver of notice of special meeting of the board of directors of Cafe del Sol, Inc., dated January 24, 1982, reflects that Jose Camino was a director as of that date even though the stock purchase agreement dated five months later failed to reflect him as director.
Another document attached to the application when it was received by the Respondent on September 14, 1982, was a copy of the 1982 corporation annual report for Cafe del Sol, Inc., which reflected Messrs. Hernandez and Balzola as director and offices, solely, but listed Mr. Camino as the new registered agent effective June 24, 1982. This annual report which bears the signature of Mr. Hernandez and an illegible date was, however, filed with the Division of Corporations, Florida Secretary of State, in its Miami Office, on September 1, 1982, long after the purported resignation of Messrs. Hernandez and Balzola as offices and long after the transfer of stock interest from them to the Caminos.
Another series of documents attached to the Petitioner's application at the time it was filed were the two notes in favor of the Republic National Bank of Miami in the amount of $25,000 and $20,000, respectively, which were listed in the personal questionnaires attached to the application by the Petitioner and his wife. The note in the amount of $25,000 is dated February 24, 1982, and is signed by both Jose and Ofelia Camino and reflects that the security for the payment of the note is an open second mortgage. The other note in the amount of
$20,000 was dated July 19, 1982, almost a month after the stock transfer agreement, and is signed for Cafe del Sol, Inc., by Jose Camino and Mr. Hernandez, who had ostensibly divested himself of ownership and/or directorship well prior to this time. The application and the allied papers submitted therewith contained on their faces, several substantial inconsistencies which
gave rise to several questions which required answers in the processing of the application.
When submitted, the license application was processed through the Miami District Office of the Division of Alcoholic Beverages and Tobacco. According to Sgt. Jorge Herrera, the licensing supervisor for the Miami Office, upon receipt, the Petitioner's application looked like a completed application. When an application in a completed form is received, a date stamp appears on not only the application form but both personal questionnaires attached thereto in this case.
The purpose of the application process is to permit the Division of Alcoholic Beverages and Tobacco to ascertain if the applicants have been convicted of a felony, own an interest in other licenses of this nature, own an interest in other business which relates to other areas of the beverage industry and whether other individuals than the applicant appear to be able to have an interest in the license through sources of financing. In the event an application is received which is incomplete, or which is questionable, the application must be verified either through direct contact with the applicant, or through other sources.
In the instant case, the stock purchase agreement bears a date stamp the same date as the application. The investigative file also contains stock certificates, and the accuracy of the stock record book is important to show all owners of the business and their proportionate ownership, to ensure there are no hidden owners.
The Division has 90 days to fully investigate applications. Requests for further information are generally made in writing, unless the applicant can be contacted to be questioned verbally.
The Petitioner's application and the allied documents were assigned for review and investigation to Beverage Officer Juanita Loud. As a result of what Officer Loud felt to be several deficiencies in her initial review of the application, on October 6,1 982, she met with Mrs. Camino at the Cafe del Sol Restaurant. After advising Officer Loud that Mr. Balzola was paid $25,000 for the purchase of his shares of the corporation, Mrs. Camino was surprised to learn that the documentation submitted with the application reflected that the only owner of stock in the corporation was her husband Jose, and that she did not hold title to any of it. In fact, Mrs. Camino had very little information to tell about any of the inconsistencies brought out in the paragraphs above. Because of this, Officer Loud asked Mrs. Camino where she could contact her husband. Parenthetically, one of the questions Officer Loud needed the answer to was the work address of Petitioner Jose Camino which was left unanswered on the application form. Since at that time, October 6, 1982, Mr. Camino was out working on a construction project, Mrs. Camino tried to contact him, but could not. Mrs. Camino advised Officer Loud that she would try to get her husband to call Officer Loud and also referred to the license broker with whom they had dealt, a Mr. Valdez.
When Officer Loud returned to her office, she prepared a letter, dispatched on October 7, 1983, to Mr. Camino, verifying the questions which she needed answered prior to October 12, 1982. She also contacted Mr. Valdez by phone several days later. During this conversation, Mr. Valdez agreed to meet with Officer Loud and to bring in the corporate ledger. A meeting was set for October 11, 1982, and Officer Loud advised Mrs. Camino by phone of when and where the meeting was to be held. However, neither Mrs. Camino nor Mr. Valdez
appeared as scheduled. The meeting was thereafter scheduled for October 12, 1982, at Mr. Valdez' request. Neither he nor Mrs. Camino showed up for the second meeting.
On October 13, 1982, Mr. Valdez appeared at Officer Loud's office, bringing with him the corporate ledger. Officer Loud was permitted to look at the record book, but it was left with her. During the course of this meeting, Officer Loud discussed the inconsistencies outlined above with Mr. Valdez. Mr. Valdez either could not or would not explain the inconsistencies. When Officer Loud asked him about the purchase price of $25,000 as stated by Mrs. Camino, Mr. Valdez indicated that Mrs. Camino was in error and that the purchase price was only $12,000. When Officer Loud asked Mr. Valdez about other possible interests or investments, Mr. Valdez indicated it was none of the Division's business what the Caminos did with their money, and he would not provide any further information on that subject.
Approximately a day or so later, Officer Loud again called Mrs. Camino indicating she needed more information to process the application. Neither Mrs. Camino nor her husband ever came into the office to provide it. However, after Loud's report was submitted to her supervisor, Sgt. Herrera, recommending disapproval because of the unresolved inconsistencies and questions, and final disapproval was entered on January 13, 1983, additional information was submitted to Sgt. Herrera by the Caminos and by Mr. Valdez. After review of this additional information, Officer Loud had a meeting with the Caminos on January 17, 1983, at which the services of an interpreter were utilized to insure there was no misunderstanding of the substance of the conversation. At this meeting, a request was made by Officer Loud for clarification of the still- remaining inconsistencies, but neither Petitioner nor his wife could provide reasons for these defects. Though Mr. Camino recognized his signature on the documents presented to him, he could explain little else. His explanation was that he had signed many of these forms on the advice of someone else, either Mr. Valdez or his attorney Mr. Silver, but could not remember when or why he signed them.
After this meeting with the Caminos, some further documents were submitted, including an Affidavit dated January 12, 1983, signed by the Caminos, which purported to explain the majority of the inconsistencies. However, according to Officer Loud, it did not do so. For example, as to the stock discrepancies (all being issued to Jose), the affidavit indicated that there was an additional certificate No. 8, for an additional 500 shares issued to Mrs. Camino on June 24, 1982, the dame date the other two certificates were issued to Mr. Camino. However, according to Officer Loud, when Mr. Valdez brought the stock ledger to her office on January 13, 1983, stock certificate No. 8 was not filled out. She saw it uncompleted in the book. Additionally, certificate Nos.
6 and 7 reflected Jose Camino as secretary-treasurer and Number 8 showed Mrs. Camino as secretary-treasurer, but there we no supporting documents in the corporate minutes to explain this inconsistency. Further, certificate No. 8 in the amount of 500 shares and certificate Nos. 6 and 7 for 250 each would total 1,000 shares. However, the stock purchase agreement indicated that only 500 shares were issued on June 24, 1982. In other words, the explanation of an inconsistency created another inconsistency, and when the Caminos were asked about these subsequent inconsistencies, they could not explain them. Further, the affidavit statement that the Caminos knew nothing about the inconsistency in the annual report is not a satisfactory explanation to satisfy the Division.
In an effort to resolve the inconsistencies, Officer Loud met with Mr. Hernandez once before the application was denied, but Mr. Hernandez could not clarify any of the inconsistencies either.
According to Officer Loud, there were too many inconsistencies that were not satisfactorily explained. There were and are too many questions unanswered questions, and it appeared as well after several tries and no further usable explanation was or would be forthcoming. Had any information been forthcoming, it would have been examined, considered, and if possible, utilized by Officer Loud in support of the application. As it was, based upon further review of the Petitioner's application and the supplemental documentation submitted, Officer Loud could not in good conscience alter her original recommendation of disapproval of Petitioner's application.
CONCLUSIONS OF LAW
The Division of Alcoholic Beverages and Tobacco has jurisdiction over the parties and the subject matter of this proceeding.
In licensing proceedings, the applicant must establish his entitlement to the requested license. J. W. C. Co. v. Department of Transportation, 392 So.2d 778 (Fla. 1 DCA 1981).
Petitioner here was denied licensure on the basis that the application did not provide complete financial documentation as well as the fact that the documentation submitted was inconsistent with the application. Section 561.15(1), Florida Statutes (1981), states that:
Licenses shall be issued only to persons of good moral character who are not 19 years of age. Licenses to corporations shall be issued only to corporations whose officers are of good moral character and not less than 19 years of age. There shall be no exemptions from the license taxes herein provided to any person, association or persons, or corporation, or law to the contrary notwith- standing.
To determine the good character of the corporate officers, an investigation is called for under the provisions of Section 561.18, Florida Statutes (1981), which provides:
After the application has been filed with the local district office supervisor, the district supervisor shall cause the application to be fully investigated, both as to qualifications of the applicants and a manger or person to be in charge and the premises and location sought to be licensed, except that, in the event of any licenses issued pursuant to s. 561.19(1), the division shall cause only those applications selected by public drawing in the order selected to be fully investigated.
Subsection 561.19(1), Florida Statutes (1981), permits the issuance of the license upon approval of the Division only after completion of the investigation.
Even though Sgt. Herrera testified initially that he received what bore the stamp of a complete application from the Respondent, further review of the documentation by Officer Loud, the individual charged with the actual investigation into its accuracy, revealed that it was not in any way sufficiently complete to support approval action. An application is not complete until sufficient information is furnished to the Division to enable it to conduct an effective investigation with a view toward meeting the criteria set forth in the aforementioned findings of fact herein. When the documentation submitted is insufficient to supply the Division with the necessary information, the Division is unable, under the law, to approve the application. See Sans Souci v. Florida Division of Land Sales and Condominiums, 421 So.2d 623 (Fla. 1 DCA 1982), and ABC Liquors v. Department of Business Regulation, 397 So2d 696 (Fla. 1 DCA 1981), regarding agency construction of the statutes it is charged with enforcing.
The testimony of Sgt. Herrera and Officer Loud clearly established the failure of the Petitioner to provide sufficient information to the Division to allow it to effectively, and for the purposes set out, investigate the application. The affidavit submitted after the application failed to provide sufficient additional information, nor did the additional documentation submitted at the hearing
As a complete application is one which does not contain material inconsistencies, and which provides sufficient documentation to allow the agency to make adequate inquiry into the ownership and financing arrangements of the proposed license, the failure to provide that information necessary to permit the agency to do that, as we see is the case here, leads to the inescapable conclusion that the application submitted by Petitioner was incomplete at the time of submission, was not made complete by any further presentation of requested information, and impeded the Division's ability to fully investigate as required by law.
Since Section 561.18, Florida Statutes (1981), establishes the statutory authority for disapproval of an incomplete application; since this application has been clearly shown to be incomplete in many particulars; since the applicants were repeatedly afforded the opportunity to, and were solicited to, submit further clarifying and supporting documentation and failed to do so; and since the Division was thereby unable to fully investigate the application as called for by the statute, the application must be, as it was here, disapproved.
The Respondent submitted to the Division of Administrative Hearings a proposed recommended order which included proposed findings of fact and conclusions of law. The proposed findings and conclusions were adopted in the Recommended Order and in this Final Order only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, or otherwise unnecessary to the determination of the issues.
ORDER
On the basis of the facts and conclusions above, and after a review of the record received from the Division of Administrative Hearings, it is
ORDERED:
That Petitioners' application for approval of transfer of interest in alcoholic beverage license No. 23-4572, 4-COP, SRX, be and the same is hereby DENIED.
DONE AND ORDERED this 31 day of August 1983, in Tallahassee, Florida.
HOWARD M. RASMUSSEN, Director
Division of Alcoholic Beverages and Tobacco
725 South Bronough Street Tallahassee, Florida 32301
COPIES FURNISHED:
Dennis E. LaRosa, Esquire
516 North Duval Street Tallahassee, Florida 32301
Janice G. Scott, Esquire 725 South Bronough Street Tallahassee, Florida 32301
Arnold H. Pollock, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Sep. 08, 1983 | Final Order filed. |
| Jul. 13, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 31, 1983 | Agency Final Order | |
| Jul. 13, 1983 | Recommended Order | Incomplete license application was not sufficient to show good character sufficient to support transfer of license. |
