Judges: ARNOLD H. POLLOCK
Agency: Department of Business and Professional Regulation
Latest Update: Jun. 13, 1983
Summary: Whether Petitioner's application for an alcoholic beverage license should be granted or denied on the grounds stated in Respondent's letter of denial dated November 18, 1982.Evidence found by Hearing Officer was insufficient to deny license to owner of other concern whose license was disciplined. Division of Alcoholic Beverages and Tobacco (DABT) found otherwise and denied license.
83-0544.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LEONARD P. DEL PERCIO, d/b/a ) YUM YUM TREE, )
)
Petitioner, )
)
vs. ) CASE NO. 83-544
) DEPARTMENT OF BUSINESS REGULATION ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Arnold H. Pollock, held a formal hearing in this case on March 23, 1983, in Daytona Beach, Florida.
APPEARANCES
For Petitioner: Leonard P. Del Percio, pro se
Post Office Box 6202, Station A Daytona Beach, Florida 32022
For Respondent: James N. Watson, Jr., Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
ISSUE PRESENTED
Whether Petitioner's application for an alcoholic beverage license should be granted or denied on the grounds stated in Respondent's letter of denial dated November 18, 1982.
BACKGROUND
On November 18, 1982, Petitioner and Michael Rocco Del Percio, doing business as the Yum Yum Tree, received a letter from Charles A. Nuzum, Director of the Division of Alcoholic Beverages and Tobacco for the State of Florida, advising them that the 4-COP license application numbered 74-375 for the business formerly mentioned at 701 Ridgewood Avenue, Holly Hill, Volusia County, Florida, had been disapproved because one of the applicants had an interest in a revoked beverage license.
Petitioner, in response to the above denial letter, on December 8, 1982, submitted a request in writing for an administrative hearing on the matter.
At the hearing, Petitioner, Leonard P. Del Percio, testified and submitted the documents which constitute Petitioner's Composite Exhibit 1. Respondent did not have any witnesses, but introduced Respondent's Composite Exhibit A, and Respondent's Exhibits B and C, without objection.
Based on the evidence presented at the hearing, the following facts are determined:
FINDINGS OF FACT
During September, 1979, Del Percio was asked by an acquaintance of his in Orlando, Florida, Kenneth McCall, to assist in the running of a lounge which McCall owned there called "The Foxy Lady."
Del Percio agreed to do this, and a written agreement was signed by the parties whereby Del Percio bought into a newly formed corporation, Success and Prosperity, Inc., with both Del Percio and McCall to each receive 50 percent of the corporate stock and with Del Percio to be president and McCall, vice president.
Leonard P. Del Percio was a 50 percent owner of Success and Prosperity, Inc., and had the right and duty to manage the business operated by it called "The Shingle Shack." McCall was to have no management responsibilities.
The Shingle Shack was the new name of the lounge owned previous to September, 1979, by Kenneth McCall known as "The Foxy Lady," which operated under license numbered 58-1076, at 3135 South Orange Avenue, Orlando, Florida.
Notwithstanding Del Percio's allegation that his 50 percent ownership of the corporate stock was for his protection in managing the business, the stockholders' agreement signed on August 13, 1979, by both McCall and Petitioner reflects that Del Percio loaned McCall a certain amount of money and McCall sold Del Percio one-half of all the shares of the corporation for an amount equal to the loan.
On September 13, 1979, Del Percio, as corporate president, filled out and signed various papers requesting that 2-COP license numbered 58-1076, issued in the name of Kenneth McCall, be transferred to Success and Prosperity, Inc., for a lounge called "The Shingle Shack" doing business at the same location as its predecessor business, The Foxy Lady, which was utilizing the license at that time.
These application forms were never submitted to the appropriate authorities for transfer, and the license was never issued in Del Percio's name or the name of Success and Prosperity, Inc., although the business was formed and the lounge name was changed from The Foxy Lady to The Shingle Shack. Del Percio became actively engaged in management of the business during September, 1979.
The license was to be the only asset of any major value to the corporation, but it never became an asset of the corporation.
On April 20, 1980, Kenneth McCall signed a stipulation calling for the revocation of license numbered 58-1076 because of repeated violations of Florida Statutes taking place at the lounge in question during the month of November, 1979, and because of the failure to file the application for the transfer of the
license after a bona fide sale of the business in whose name the license was issued.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.
In licensing proceedings, an applicant must prove his entitlement to the requested license and that it meets all criteria and standards for issuance. See J. W. C. Company v. Department of Transportation, 396 So.2d 778 (1 DCA Fla. 1981)
Petitioner here was denied licensure on the basis that he had an interest in a revoked beverage license under the authority of Section 561.15, Florida Statutes. That statutory provision states, in part, at Subsection (3)(c):
(3) The division may suspend or revoke the license under the Beverage Law of, or may refuse to issue a license under the Beverage Law to:
* * *
(c) Any person who is or has been an officer of a corporation, or who
was interested directly or indirectly in a corporation, the license of which has been revoked or abandoned after written notice that revocation or suspension proceedings had been or would be brought against the license.
Petitioner was the president of Success and Prosperity, Inc., and owned 50 percent of the corporate stock. The corporation operated a lounge in Orlando, Florida, called "The Shingle Shack," and Petitioner had almost exclusive management responsibility for the operation of that operation. The license purportedly being utilized to operate it was revoked approximately six to seven months after Petitioner took over active management, for repeated violations of the law.
The evidence also shows that the license would have been the primary asset of the business. It also shows, however, that the license that was revoked was issued in McCall's name and revoked while in McCall's name and was never issued to the corporation in which Petitioner had an interest or to Petitioner, even though he filled out the transfer forms and intended for the transfer to take place.
Accordingly, Petitioner was not an officer in a corporation the license of which was revoked as envisioned by Section 561.15, Florida Statutes, since the corporation never held the license.
RECOMMENDATION
On the basis of the facts and conclusions above, it is RECOMMENDED:
That Leonard P. Del Percio, doing business as the Yum Yum Tree, be issued a license as applied for.
RECOMMENDED this 20th day of April, 1983, in Tallahassee, Florida.
ARNOLD H. POLLOCK
Hearing Officer
Division of Administrative Hearings Department of Administration
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:
Mr. Leonard P. Del Percio
Post Office Box 6202, Station A Daytona Beach, Florida 32022
James N. Watson, Jr., Esquire Department of Business Regulation
725 South Bronough Street Tallahassee, Florida 32301
Mr. Howard M. Rasmussen Executive Director
Division of Alcoholic Beverages and Tobacco
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Mr. Gary R. Rutledge Secretary
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO
LEONARD P. DEL PERCIO, d/b/a YUM YUM TREE,
Petitioner,
vs. DOAH CASE NO. 83-544
DEPARTMENT OF BUSINESS REGULATION DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO,
Respondent.
/
FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Arnold H. Pollock, held a formal hearing in this case on March 23, 1983, in Daytona Beach, Florida.
APPEARANCES
For Petitioner: Leonard P. Del Percio, pro se
Post Office Box 6202, Station A Daytona Beach, Florida 32022
For Respondent: James N. Watson, Jr., Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
ISSUE PRESENTED
Whether Petitioner's application for an alcoholic beverage license should be granted or denied on the grounds stated in Respondent's letter of denial dated November 18, 1982.
BACKGROUND
On November 18, 1982, Petitioner and Michael Rocco Del Percio, doing business as the Yum Yum Tree, received a letter from Charles A. Nuzum, Director of the Division of Alcoholic Beverages and Tobacco for the State of Florida, advising them that the 4-COP license application numbered 74-375 for the business formerly mentioned at 701 Ridgewood Avenue, Holly Hill, Volusia County, Florida, had been disapproved because one of the applicants had an interest in a revoked beverage license.
Petitioner, in response to the above denial letter, on December 8, 1982, submitted a request in writing for an administrative hearing on the matter.
At the hearing, Petitioner, Leonard P. Del Percio, testified and submitted the documents which constitute Petitioner's Composite Exhibit 1. Respondent did not have any witnesses, but introduced Respondent's Composite Exhibit A, and Respondent's Exhibits B and C, without objection.
Based on the evidence presented at the hearing, the following facts are determined:
FINDINGS OF FACT
During September, 1979, Del Percio was asked by an acquaintance of his in Orlando, Florida, Kenneth McCall, to assist in the running of a lounge which McCall owned there called "The Foxy Lady."
Del Percio agreed to do this, and a written agreement was signed by the parties whereby Del Percio bought into a newly formed corporation, Success and Prosperity, Inc., with both Del Percio and McCall to receive 50 percent of the corporate stock and with Del Percio to be president and McCall, vice president.
Leonard P. Del Percio was a 50 percent owner of Success and Prosperity, Inc., and had the right and duty to manage the business to be operated by it called "The Foxy Lady." McCall was to have no management responsibilities.
The record and transcript shows that Success and Prosperity, Inc. purchased the Foxy Lady and its assets from McCall on August 13, 1979 and continued to operate it under the same name. Nothing presented by way of testimony or exhibits shows that the business ever changed its name or operated under the name Shingle Shack. An application for such was prepared by McCall and Del Percio but was never submitted to the proper authorities.
The finding that the Shingle Shack was the new name of the lounge is not supported by the record. McCall sold the Foxy Lady to the newly formed corporation and the corporation's officers completed the necessary paperwork to effect the transfer of the beverage license of Foxy Lady to Success and Prosperity, Inc. and to change its name to the Shingle Shack.
A review of the exhibits show that after the sale the business continued to operate as the Foxy Lady (sales and use tax form; cancelled check) and the transcript reveals the applications were never submitted so as to allow a change in the business name. The Foxy Lady operated under license no. 58- 1076, 2-COP, at 3135 South Orange Avenue, Orlando, Florida.
Notwithstanding Del Percio's allegation that his 50 percent ownership of the corporate stock was for his protection in managing the business, the stockholders' agreement signed on August 13, 1979, by both McCall and Petitioner reflects that Del Percio loaned McCall a certain amount of money and McCall sold Del Percio one-half of all the shares of the corporation for an amount equal to the loan.
On September 13, 1979, Del Percio, as corporate president, filled out and signed various papers requesting that 2-COP license number 58-1076, issued in the name of Kenneth McCall be transferred to Success and Prosperity, Inc., and that the name of the present business be changed from The Foxy Lady to "The Shingle Shack." The business was to remain at the same location.
These application forms were never submitted to the appropriate authorities for transfer, and the license was never issued in Del Percio's name or the name of Success and Prosperity, Inc. Del Percio became actively engaged in management of the business during September, 1979.
There is no evidence to support the finding the lounge name was ever changed. On page 15 of the transcript Del Percio stated that as far as he was concerned Success and Prosperity was the Foxy Lady. Also, Del Percio was still writing checks in October on the business Foxy Lady and had filed a sales and tax use form in the name of Foxy Lady.
On page 11 of the transcript Del Percio testified that he considered the lease of the business premises as the principal asset and that the beer and wine license was not much of an asset. Other than this testimony there is no other evidence to support the contrary finding of the recommended order.
On April 20, 1980, Kenneth McCall signed a stipulation calling for the revocation of the license numbered 58-1076 because of repeated violations of Florida Statute taking place at the lounge in question during the month of November, 1979, and because of the failure to file the application for the transfer of the license after a bona fide sale of the business in whose name the license was issued.
A review of the stockholders' agreement dated August 13, 1979 under paragraph 6.1 shows that Del Percio assumed management responsibility and that he was responsible for obtaining the license and compliance with the laws pertaining to the operation of the lounge.
Del Percio testified that Success and Prosperity, Inc. was, in fact, running the Foxy Lady and that as far as he was concerned Success and Prosperity, Inc. was the Foxy Lady.
On the application Del Percio filed on a previous occasion for a business named the Chapparal on December 18, 1980, Del Percio indicated under oath that he had had an interest in a business, i.e. Foxy Lady that dealt in selling of alcoholic beverages.
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, an applicant must prove his entitlement to the requested license and that it meets all criteria and standards for issuance. See J. W. C. Company v. Department of Transportation, 396 So.2d 778 (1 DCA Fla. 1981)
Petitioner here was denied licensure on the basis that he had an interest in a revoked beverage license under the authority of Section 561.15, Florida Statutes. That statutory provision states, in part, at Subsection (3)(c):
(3) The division may suspend or revoke the license under the Beverage Law of or may refuse to issue a license under the Beverage Law to:
* * *
(c) Any person who is or has been an officer of a corporation, or who
was interested directly or indirectly in a corporation, the license of which has been revoked or abandoned after written notice that revocation or suspension proceedings had been or would be brought against the license.
Any license issued to a person, firm,
or corporation that would not qualify for the issuance of a new license or the transfer of an existing license may be revoked by the division.
Petitioner was the president of Success and Prosperity, Inc., and owned 50 percent of the corporate stock therein. The corporation purchased the business operating as the Foxy Lady on August 13, 1979 and all its assets which included alcoholic beverage license 2-COP, 58-1076. Subsequent to the sale the business continued to operate under the name Foxy Lady with the ultimate authority for management and control vested in Del Percio. The license of the Foxy Lady that was purchased by Success and Prosperity, Inc. was revoked approximately six to seven months after Petitioner took over active management of the bar.
Both corporate officers had completed an application for the transfer of the license to the corporation and changing the business name. This application was never submitted to Respondent to act upon. Pursuant to the stockholders' agreement this was to have been Del Percio's responsibility.
The parties did not condition the sale of the business Foxy Lady and its license upon Respondent's approval. Since both McCall and Del Percio were active licensees at time of sale there was no hinderance to the transfer other than the failure to submit the application.
Although the license was never formally transferred the parties treated it as having been sold to Success and Prosperity, Inc. which operated the business after the sale. It was the corporation of which Del Percio was president that was operating the business at the time the charges were made that resulted in the license being revoked and it was Del Percio who had assumed the responsibility for the lawful operation of the bar. This is exactly the situation envisioned by the requirements of Section 561.15, Florida Statutes.
ORDER
On the basis of the facts and conclusions above, it is
ORDERED that the application submitted by Leonard P. Del Percio for the Yum Yum Tree be DENIED.
DONE AND ORDERED this 6 day of June, 1983, in Tallahassee, Florida.
HOWARD M. RASMUSSEN, Director
Division of Alcoholic Beverages and Tobacco
725 South Bronough Street Tallahassee, Florida 32301
COPIES FURNISHED:
James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Mr. Leonard P Del Percio
Post Office Box 6202, Station A Daytona Beach, Florida 32022
Arnold H. Pollock, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway
Tallahassee, Florida 32301
Docket for Case No: 83-000544
Orders for Case No: 83-000544
| Issue Date |
Document |
Summary |
|
Jun. 06, 1983 |
Agency Final Order
|
|
|
Apr. 20, 1983 |
Recommended Order
|
Evidence found by Hearing Officer was insufficient to deny license to owner of other concern whose license was disciplined. Division of Alcoholic Beverages and Tobacco (DABT) found otherwise and denied license.
|
