STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCOTT E. BRUCK, d/b/a SCOOTER'S, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1295

) STATE OF FLORIDA, 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, K. N. Ayers, held a public hearing in the above- styled case on June 15, 1983, at Tampa, Florida.

APPEARANCES

For Petitioner: William F. Casler, Esquire

7217 Gulf Boulevard

St. Petersburg, Florida 33706

For Respondent: John A. Boggs, Esquire

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

By letter dated March 3, 1983, Petitioner, by and through his attorney, requested an administrative hearing to contest Respondent's denial of Petitioner's application for a New Quota 4-COP license. As grounds for the denial, Respondent alleged that applicant has been convicted of a beverage law violation within the past five years which disqualified Petitioner for the drawings or the license; and Petitioner was not deemed to be of good moral character because he falsely swore to a material statement on his application for the New Quota license.

Although no pleadings were submitted by either party, evidence was submitted that after having his 4-COP application denied, Petitioner applied for a 2-COP (beer and wine) license which was also denied by Respondent because Petitioner's false statement on his original application showed him not to be of good moral character. Despite the absence of pleadings both parties apparently believed the denial of the 2-COP license was also in issue and presented evidence on this matter. Accordingly, the findings, conclusions and recommendations will address this issue.

At the hearing Petitioner called three witnesses, including himself, Respondent called one witness, and five exhibits were admitted into evidence. There is no basic dispute regarding the facts here involved. Proposed findings

submitted by the parties and not included below were not supported by the evidence or were deemed immaterial to the results reached.

FINDINGS OF FACT

1. On November 17, 1981, Petitioner submitted a preliminary application (Exhibit 5) for a New Quota alcoholic beverage license. This application, which was sworn to by Petitioner, contained the query whether applicant had been convicted in the past five years of any beverage law violation. To this question Petitioner marked the "No" block.

   
   

2. This application was filled out by each applicant in pencil, gone over with the applicant by a beverage office supervisor, given to a secretary to type, and returned to the applicant to check for completion and accuracy before the applicant executed the application by signing the affidavit at the bottom of the application in which, under oath, he swore to the accuracy of the information contained in the application.

   
   

3. On December 26, 1977, Petitioner was arrested for allowing alcoholic beverages to be served and consumed after hours in his father's bar. He was convicted of this misdemeanor and sentenced to serve ten (10) days in the county jail by order entered January 20, 1978 (Exhibit 4).

   
   

4. As a result of this conviction of a beverage law violation within five years of the filing of the application for a New Quota beverage license, the information contained on the application was untrue and Petitioner was not then eligible for a New quota license.

   
   

5. After Petitioner's application for a New Quota license was facially approved, Petitioner was required to, and did, furnish fingerprints to Respondent. A check of the fingerprint records disclosed Petitioner's prior conviction of a beverage law violation in January, 1978.

   
   

6. No evidence was presented showing the date Petitioner applied to have a New Quota 4-COP license issued, but Petitioner testified this occurred more than five years after he was convicted of the beverage law violation, i.e., after January 20, 1983. By letter dated February 14, 1983 (Exhibit 2) , this application was denied because of the beverage law violation and the false entry in the application sworn to as true by Petitioner.

   
   

7. Had Petitioner answered the question on the New Quota application regarding a beverage law violation within the past five years accurately, his application would have been disapproved.

   
   

8. Again, no evidence was submitted when Petitioner submitted his application for a 2-COP license, but he testified this was after his 4-COP license application had been denied, i.e., after February 14, 1983. At this time an answer that he had not been convicted of a beverage law violation within the past five years would have been truthful.

   
   

9. Petitioner presented his father and a friend of his father, who had worked part-time at the father's pizza shop, to testify that Petitioner had always been truthful in his dealings with them.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

11. Section 561.15, Florida Statutes, provides in pertinent part, that beverage licenses shall be issued only to persons of good moral character who are not less than 19 years of age and who have not been convicted within the last past five years of any offense against the beverage laws of this state.

    
    

12. This provision of the statute regarding conviction of any offense against the beverage laws of this state within the last past five years has been interpreted by the Division of Alcoholic Beverages and Tobacco to mean within five years of the application for such license rather than within five years of the date of issuance of such license. Although Section 561.15, Florida Statutes, provides no license shall be issued to any person who has been convicted within the last past five years of any offense against the beverage laws of this state, the interpretation by the Division that the applicant must appear qualified at the time of his application is not an unreasonable interpretation of the statute. Such an interpretation by the state agency charged with the enforcement of that statute will normally be accorded great deference unless there is a clear error or conflict with the law. Sans Souci v. Florida Division of Land Sales and Condominiums, 421 So.2d 623 (Fla. 1 DCA 1982)

    
    

13. This 4-COP license was also denied because Petitioner, under oath, falsely answered the question regarding conviction of a violation of the beverage laws within the past five years. As noted in the findings above, had Petitioner correctly answered this question, his application to participate in the drawing for a New Quota beverage license would have been disapproved. If he was aware this application would be disapproved if he accurately responded to this question, Petitioner had an obvious motive for not disclosing this fact so that not less than two months later he could apply for the issuance of such license. By this time the "issuance" of the license would not have been within the five-year period immediately following the conviction of the beverage law violation. Such conduct does not evince good moral character. As stated in Zemour, Inc. v. State of Florida, Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1 DCA 1977):

    
    

    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 [when not one included in the prohibitions of Section 561.15(2) , Florida Statutes] or. acts of indiscretion wherever committed

    do not necessarily establish bad moral character. . .

    
    

14. By swearing to the accuracy of a false statement on an application for a beverage license, Petitioner has demonstrated a moral character unsuited to the issuance of a beverage license. This false affidavit on the application for

    a New Quota beverage license on November 17, 1983, demonstrates lack of good moral character which also disqualifies Petitioner for the issuance of a 2-COP license even though his application for such license was without error.

    
    

15. From the foregoing it is concluded that Petitioner failed to demonstrate good moral character so as to qualify for the issuance of a 4-COP license or for the 2-COP license requested after the former was disapproved. It is

RECOMMENDED that a Final Order be issued denying Scott E. Bruck a New Quota 4-COP beverage license and a 2-COP beverage license in Pinellas County.

ENTERED this 6th day of July, 1983, at Tallahassee, Florida.

K. N. AYERS, 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 6th day of July, 1983.

COPIES FURNISHED:

William F. Casler, Esquire 7217 Gulf Boulevard

St. Petersburg, Florida 33706

John A. Boggs, Esquire

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

Howard Milan Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

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

Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 83-001295

Orders for Case No: 83-001295