STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANDRA ELIZABETH BIEBER, d/b/a ) SEB LIQUORS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1615

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before Marvin

1. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on August 30, 1983, in Jacksonville, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Dennis E. LaRosa, Esquire

   516 North Duval Street Tallahassee, Florida 32301

   
   

   For Respondent: James N. Watson, Jr., Esquire

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

   
   

   ISSUES AND BACKGROUND

   
   

   This case concerns the issue of whether the Respondent properly denied Petitioner's entitlement to a quota beverage license in Bradford County, Florida. At the formal hearing the Petitioner called as witnesses Allen F. Nash and, by deposition, L. B. Schoenfeld. Petitioner also testified on her own behalf. The Respondent called as its only witness Allen F. Nash. The Petitioner offered and had admitted into evidence four exhibits. The Respondent offered no exhibits into evidence. Counsel for the Petitioner and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that these proposed findings of fact and conclusions of law are inconsistent with the findings and conclusions in this order, they were considered by the Hearing Officer and rejected as being not supported by the evidence or unnecessary to the disposition of this cause.

   
   

   FINDINGS OF FACT

   
   

   1. The Petitioner in this case is an applicant for a quota beverage license and filed her initial application for that license on October 23, 1981.

      That application was titled "Preliminary Application for New Quota Alcoholic Beverage License."

      
      

   2. Paragraph five of the instructions contained in the preliminary application referred to above states:

      
      

      This is Part I of a two (2) part application. Part II will be fur- nished to you if selected in the drawing. Part II includes among other things, health approval (if required), zoning approval and proof of right of occupancy.

      
      

   3. On October 13, 1982, the Petitioner was notified by letter from the Director of the Division of Alcoholic Beverages and Tobacco that she had been selected in the random drawing on October 6, 1983, for a new quota beverage license for Starke, Bradford County, Florida. This letter informed Petitioner that her name had been drawn and that the agency must act on her application within 180 days of the drawing. Paragraph three of that letter states:

      
      

      We suggest that you contact our Jackson- ville field office located at the Richard P. Daniel Building, 111 East Coastline Drive, Suite 514, Jacksonville, as soon as pos- sible. You must file your complete appli- cation which will include, among other items, a location, zoning approval, and fingerprints, if you are not already

      a current licensee, for yourself and those to be interested with you in your business. Please bear in mind that our agency has only 180 days from the date of the drawing to

      act upon your application. We urge you to move forward in order to save time necessary to process the appli- cation and complete the investigative process.

      
      

   4. On October 22, 1982, the Division of Alcoholic Beverages and Tobacco forwarded to Petitioner the forms necessary to complete Part II of the application process. Those forms and the accompanying letter were received by the Petitioner.

      
      

   5. Petitioner failed to file Part II of the application and on April 7, 1983, the Division of Alcoholic Beverages and Tobacco by letter notified the Petitioner that her entitlement to a quota beverage license had been disapproved. The authority for such disapproval was given as Florida Statute

      561.17 and Florida Statute 561.19.

      
      

   6. The information which was to be provided subsequent to the drawing, which was not included in the preliminary application, included:

      
      

      1. Information relating to the right of the applicant to occupy the premises to be licensed.

      2. The health approval of the premises to be licensed. This approval must

         be signed by a proper representative

         of the state/county health authorities.

      3. Information relating to the zoning of the premises to be licensed. A portion of the second application form in

         section 7 must be completed by the local zoning authorities and must reflect that the premises to be licensed complies with the local zoning ordinance for the sale of alcoholic beverages.

         
         

         CONCLUSIONS OF LAW

         
         

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

      
      

   8. When, as here, an application for a license or permit has been denied on statutory grounds, the applicant bears the burden of proving entitlement to the license. See, Florida Department of Transportation v. J.W.C. Company, Inc., 398 So.2d 778 (Fla. 1st DCA 1981).

      
      

   9. Here, the Petitioner applied for and was selected by random drawing for entitlement to a new quota license for Bradford County, Florida. Such quota licenses and their issuance are controlled by Florida Statute 561.19, which provides in relevant part:

      
      

      1. When beverage licenses become available by reason of an increase in the population of a county or by reason of a county permitting the the sale of intoxicating beverages when such sale had been prohibited, the division, if

         there are more applicants than the number of available licenses, shall provide a method of double random selection by public drawing to determine which applicants shall be considered for issuance of licenses. The double random selection drawing method shall allow each applicant whose application is complete and does not disclose on its face any matter ren- dering the applicant ineligible an equal opportunity of obtaining an available license. After all applications are filed with the director, the director shall then determine

         by random selection drawing the order in which each applicant's name shall be matched with

         a number selected by random drawing; and that number shall determine the order in which the applicant will be considered for

         a license. Subject to this selection process, if an applicant is found qualified as pro- vided by the Beverage Law, a license shall

         be granted. However, it shall not be issued until and unless the applicant establishes to the satisfaction of the director that

         the premises to be licensed qualify under the Beverage Law. The director shall not include more than one application from any one person, firm, or corporation in the

         random selection process, nor may he consider more than one application for any one person, firm, or corporation when there are fewer applications than available licenses.

      2. In the event that the number of applications does not exceed the number of licenses available, the drawing provided in subsection (2) shall not be held, but the licenses shall be issued in accordance with the provisions of subsection (2).

      3. The granting of licenses pursuant to subsection (2) or subsection (3) shall not be governed by the provisions of s.

      120.60. The granting of any such license shall occur no later than 180 days after a drawing is held pursuant to notice pub- lished in the Florida Administrative

      Weekly or, in the event no drawing is held, within 180 days of the final date for filing applications. Any applicant who is not included in the pool for drawing to determine priority shall file, within 30 days of the date of mailing of notice to such appli- cant, a challenge to such action pursuant

      to s. 120.57, or the right to file any action as to such matter shall be forever lost.

      Any applicant whose name is included in the pool for drawing to determine priority but who is not granted a license shall be entitled to request a hearing on the

      denial pursuant to s. 120.57 only on the grounds that the selection process was not conducted in accordance with law or that the licensee selected does not possess the qualifications required by law.

      
      

   10. Petitioner was well aware of the two-step process involved in obtaining a quota license. The preliminary application, as well as subsequent correspondence from the Division of Alcoholic Beverages and Tobacco, informed her quite clearly that additional information was required after the drawing and that the Department had 180 days within which to act upon the application.

       
       

   11. One mandatory requirement of Section 561.19(4), Florida Statutes, provides that the license "shall not be issued until and unless the applicant establishes to the satisfaction of the director that the premises to be licensed qualify under the Beverage Law." Florida Statute 561.17 requires that the application be accompanied by a certificate from the Department of Health and Rehabilitative Services or a county health department that the place of business to be licensed meets all sanitary requirements. This certificate, along with the zoning approval, was essential for the issuance of the license under the requirement of 561.19(4) relating to the licensed premises. Without this information, the license could not be issued. The Petitioner, by failing to

       submit the additional forms, also failed to submit the necessary information for the issuance of the license.

       
       

   12. A quota beverage license must be granted, if at all, within 180 days of the date of the drawing, which in this case was October 6, 1982. The Petitioner was informed of this requirement and failed to submit the necessary information for approval of her quota beverage license within the 180-day period. The Petitioner has failed to prove that she is entitled to a quota beverage license. The evidence rather establishes that the denial of entitlement was proper under the requirements of Florida Statute 561.17 and Florida Statute 561.19.

RECOMMENDATION

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

That the Division of Alcoholic Beverages and Tobacco issue a final order denying Petitioner's application for a quota beverage license.

DONE AND ENTERED this 16th day of November, 1983, at Tallahassee, Florida.

MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 1983.

COPIES FURNISHED:

Dennis E. LaRosa, Esquire

516 North Duval Street Tallahassee, Florida 32301

James N. Watson, Jr., Esquire Staff Attorney

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida u2301

Howard M. 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: 83-001615

Orders for Case No: 83-001615