STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRED EARL CHAPPIE, D/B/A ) WATERMELON INN & TRUCKSTOP, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2652

)

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on October 14, 1983, in Bronson, Florida.

APPEARANCES

For Petitioner: Earl Chappie, pro se

Post Office Box 622 Chiefland, Florida 32626

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

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

BACKGROUND

By application dated April 21, 1983 Petitioner, Fred Earl Chappie, d/b/a Watermelon Inn & Truckstop, sought the issuance of a new beverage license from Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. By letter dated May 16, 1983 Respondent denied the application on the grounds the "(a)pplicant ha(d) been convicted within the last past five years, in this state, of soliciting for prostitution" and because he had "falsely sworn to a material statement."

Thereafter, Petitioner requested a formal hearing to contest the licensure denial pursuant to Subsection 120.57(1), Florida Statutes. The matter was referred by Respondent to the Division of Administrative Hearings on August 19, 1983 with a request that a Hearing Officer be assigned to conduct a hearing.

By notice of hearing dated September 23, 1983 the final hearing was scheduled for October 14, 1983 in Bronson, Florida. At the final hearing Petitioner testified on his own behalf. Respondent presented the testimony of

Bradley Dean Brown, beverage officer, and offered Respondent's Exhibits 1 and 2; both were received in evidence.

The issue herein is whether Petitioner's application for a beverage license should be approved.

Based upon all of the evidence the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Fred Earl Chappie, filed an application for a 2-COP beverage license on April 21, 1983 with Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). He intends to use the license at the Watermelon Inn & Truckstop, a business which he owns and operates, and which is located approximately seven miles north of Chiefland, Florida, on Highway 19. A 2-COP license authorizes the licensee to sell beer and wine for consumption on the premises.

   
   

2. On May 16, 1983 Respondent denied the application on the grounds Chappie "had been convicted within the last past five years, in this state" and had "falsely sworn to a material statement" on his application. The denial prompted this proceeding.

   
   

3. An applicant for a beverage license is required to submit a sworn application with the Division. The application form contains the following question: Have you ever been arrested or charged for a violation of soliciting for prostitution? Chappie answered no to this question. However, a background check of Chappie by the Division revealed Chappie had pled guilty to the charge of "soliciting for prostitution" on April 11, 1979 in County Court for Hillsborough County, Florida.

   
   

4. The application form also requires the applicant to swear or affirm that the information given on the form is true and correct. Chappie did so despite the incorrect response to the above question.

   
   

5. Chappie acknowledged that he had been arrested on a charge of solicitation for prostitution in March, 1979, and paid a $75 fine when he subsequently pled guilty to that charge a month later. However, he stated the incorrect response was unintentional for he did not know that a male (vis a vis a female) could be charged with that crime and accordingly he responded to the question in the negative. He also acknowledged that he had indeed sworn that all answers in the application were correct.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

7. Subsection 561.15(2), Florida Statutes, provides in pertinent part as follows:

   
   

   (2) No license under the Beverage Law shall be issued to any person who has been convicted within the last past 5 years

   of soliciting for prostitution . . . .

   Section 559.791, Florida Statutes, provides in part that:

   
   

   (a)ny license issued by the Department of Business Regulation which is issued or renewed in response to an application upon which the person signing under oath or

   affirmation has falsely sworn to a material statement, shall be subject to denial of the application . . . .

   
   

8. The evidence discloses that Petitioner has violated both of the foregoing statutes. Although the failure to disclose the prior conviction may have been unintentional, the law is absolute and prohibits the issuance of a license until at least five years has passed since the conviction. Accordingly, the application should be denied without prejudice to Petitioner refiling his application when the five-year period has passed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Fred Earl Chappie for a beverage

license be DENIED without prejudice to refiling the same when the five-year

statutory period of time since his conviction has passed.

DONE and ENTERED this 24th day of October, 1983, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 24th day of October, 1983.

COPIES FURNISHED:

Fred Earl Chappie Post Office Box 622

Chiefland, Florida 32626

James N. Watson, Jr., 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

Harold F.X. Purnell, Esquire General Counsel

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

Docket for Case No: 83-002652

Orders for Case No: 83-002652