STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GUISEPPI PIZZERIA, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3298

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

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the notice of hearing issued by the undersigned on March 21, 1984, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in Miami, Florida, on June 1, 1984. The issue for consideration at the hearing was whether petitioner's application for a 2-COP liquor license should be denied because of disqualifications outlined in the letter of denial dated August 29, 1983.

APPEARANCES

For Petitioners: William A. Hatch, Esquire

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

For Respondent: Murray Meyerson, Esquire

Second Floor East AmeriFirst Federal Building

100 Northeast First Avenue Miami, Florida 33132

BACKGROUND INFORMATION

In mid-1982 and early 1983, the Petitioners, Gumersindo Gonzalez and Miguel Porte, submitted to Respondent, Division of Alcoholic Beverages and Tobacco, applications for a beverage license for a business--Guiseppi Pizzeria, located in Hialeah, Florida. This application was denied by the Respondent by letter dated August 29, 1983. Thereafter, by letter dated September 19, 1983, counsel for Petitioners requested an administrative hearing on the denial. A hearing was originally set for February 3, 1984, but was, on January 6, 1984, placed in abeyance due to proposed settlement of the dispute. Thereafter, on March 1, 1984, counsel for Petitioners requested the case again be set for hearing and hearing was set for April 27, 1984, but because of a conflict, was rescheduled for June 1, 1984.

At the hearing Petitioners presented the testimony of Miguel Porto, Gumersindo Gonzalez, the Petitioners, Eusebio Tarradell, Porto's accountant, and

Francesco Jiminez, a neighboring businessman. Petitioners also introduced Petitioners' Exhibits 2 and 3. Petitioners' Exhibit 1, though marked, was not admitted. Respondent presented testimony of investigator Luis Viglione and introduced Respondent's Exhibits A-G.

FINDINGS OF FACT

1. On October 30, 1982, Petitioner Gumersindo Gonzalez, and on February 25, 1983, Petitioner Miguel Porto, both registered aliens from Cuba, made application with respondent, Department of Alcoholic Beverages and Tobacco, for an alcoholic beverage license.

   
   

2. The personal questionnaire submitted by each applicant reflected that the business to be licensed was Guiseppi Pizzeria, located at 1780 West 68th Street, Hialeah, Florida. It also reflected in each case that the total purchase price of the business being purchased was $45,000 (with nothing financed) with the sources of cash being, in each case, "from my own resources and prior businesses." Petitioner Gonzalez answered "no" to questions 1-7 on the first page of the questionnaire dealing with arrests or aliases, but Petitioner Porto admitted to having been arrested on "11/10/77" by the New York Police for carrying a concealed weapon. By affidavit attached to the questionnaire, the Petitioner Porto indicated he pled guilty to the lesser offense of an attempt to commit the crime of criminal possession of a weapon in the third degree and was adjudged guilty with probation on July 27, 1978.

   
   

3. On September 6, 1983, Robert M. Haft, a Justice of the Supreme Court, executed a form DP-53, State of New York Certificate of Relief from Disabilities for the offense outlined above. The form reflected that the certificate shall "relieve the holder of the forfeitures, disabilities for bars hereinafter enumerated-desires to obtain liquor license for business." By this time, according to the questionnaire, Petitioner Porto was already a resident of Florida residing with his wife and Petitioner Gonzalez and his wife at 15411 Durnford Drive, Miami Lakes, Florida, 33014, with home phones for both listed as 557-8063.

   
   

4. In addition to this offense for which the certificate of relief was issued, the Union City Police Department, Union City, New Jersey, related a police record reflecting a prior arrest for possession of a dangerous weapon on February 19, 1976. The disposition of this offense was shown as "held for grand jury." There is no indication that Mr. Porte was ever convicted of this offense, but he did fail to list it on his personal questionnaire accompanying the application for a beverage license.

   
   

5. Luis S. Viglione, an investigator with the Respondent, Division of Alcoholic Beverages and Tobacco, was assigned to review Petitioners' application. During the course of his investigation he was furnished certain financial documentation by the petitioners which consisted of bank statements, investment records and bills for the licensed premises and the Petitioners' income tax records.

   
   

6. The bank documents furnished showed large deposits of money without any explanation of where the money came from. The documents were originally submitted with only account numbers without any identification as to what bank they related to. At this point Petitioners and their accountant represented to Mr. Viglione that the money was for investment in the business, but in addition to there being no way to trace where it came from, there was no way to show where it went. The investment documents and receipts submitted show what monies

   were spent on equipment and set-up costs without any showing of where the monies came from. In addition to the above, the petitioners also submitted miscellaneous financial documents which confused Mr. Viglione and from which he could make no sense whatsoever.

   
   

7. Further confusion was provoked by a review of the documentation submitted by the Petitioners which showed combined investment of approximately

   $120,000 which figure was less than the total of the receipts for monies spent to set up the business. Review of these documents resulted in no identification of or way to trace where this money, mostly in the form of cash, came from.

   This was in part the basis for the disapproval.

   
   

8. Mr. Viglione does not speak Spanish and both Petitioners are Spanish speaking and speak little if any English. He did not personally talk with them about the documents and what he needed, but Mr. Porto was accompanied by an interpreter during many of their conversations and Mr. Viglione was always accompanied by a Spanish speaking agent. Notwithstanding this, Viglione indicated that on some occasions it appeared to him that Mr. Porto did not understand what it was that was expected of him. It was only after disapproval on the basis of the insufficiency of the records that counsel was brought into the picture. When counsel began to take part in the process more paperwork was submitted. Notwithstanding the additional paperwork and notwithstanding the fact that petitioners did cooperate at all times and furnish all available documentation, the application was still denied.

   
   

9. After the second denial, at the request of Mr. Viglione, a meeting was held in Petitioners' counsel's office. At this meeting Mr. Viglione was accompanied by an agent of the Florida Department of Law Enforcement who was an accountant. At that Point, Gonzalez and Porto produced documentation showing the funds had been transmitted from an out-of-state bank or banks. When asked where these finds originated, the Petitioners indicated they came from cash on hand which was the result of business operations up north--over several years.

   
   

10. Mr. Viglione indicated that at that point, he may not have specifically asked for more information, but contends that from the beginning, after the initial denial, he had indicated a need for proof of where the money came from. He felt and indicated to the Petitioners that the tax returns which they submitted as justification for the cash were not sufficient explanation in and of themselves. He did not however, do an audit of the tax forms or go into their background. He also did not contact any banks to see where the money came from.

    
    

11. Mr. Porte came to Miami approximately 4 1/2 to 5 years ago from Union City, New Jersey, where he was in the poultry market business since 1974. He is still the owner of that business and still derives an income from it. It is from this business that the $45,000 was accumulated and was subsequently used to invest in the business. He has known Mr. Gonzalez for 10 years. They are close friends and Mr. Gonzalez is his daughter's Godfather. This is their first business experience together.

    
    

12. Mr. Gonzalez, also from Union City, New Jersey, is now and has been for the past few years the owner of a food and beverage market in New York. Ha has a beverage license to sell beer in New York and has had it for approximately

    7 to 8 months. He did not have it, however at the time he applied for the Florida license. The money that he invested in the business came from his operation of the food and beverage market in New York over a several year period.

13. Francisco Jiminez has known Mr. Porte for over a year as a nice, quiet, hard working individual of good moral character. Mr. Jiminez owns a neighboring business (a liquor store) in the same shopping center where the business for where the license was applied is located. He himself owns a liquor license.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. The license application was denied in the case because of two alleged basic disqualifications. The first is that one of the applicants, Mr. Porte, was convicted of a felony within the past 15 years. This is a violation of Section 581.15(2), Florida Statutes, which in part states "no license under the beverage law shall be issued to any person who has been . . . convicted in the past 15 years of any felony in this state or any other state or the United States; . . ." The evidence establishes, and Mr. Porto admits, that in 1977 he was convicted of a felony in the State of New York which falls within the prescriptions of the statute. He contends, however, that the certificate of relief of civil disabilities issued by the State of New York serves to restore his civil rights as regarding his eligibility for a liquor license within the State of New York and therefore should carry the same effect in Florida especially in light of the fact that Respondent will grant a license to one who gets a "restoration of civil rights" in this state.

    
    

16. A review of the New York State Correction Law at Article 23, Section

    701.3 reveals that "a certificate of relief from this disability shall not, however, in any way prevent any judicial, administrative, licensing or other body, board of authority from relying upon the conviction specified therein as the basis for the exercise of its discretionary power to suspend, revoke, refuse to issue or refuse to renew any license, permit, or other authority." From this it can be seen that the State of New York does not treat its own certificate of relief as an absolute restoration of qualification, but makes it discretionary with the licensing body as to whether or not to issue a license based on that certificate. It becomes clear therefore, that if the State of New York is not bound by its own certificate of relief, the State of Florida certainly should not be. This is not to say that by adopting this position Florida does not recognize under the full faith and credit clause of the U.S. Constitution, the effect of the New York State certificate of relief. To the contrary, adopting its discretionary nature is an exact parallel to the New York State application.

    
    

17. With regard to the failure to produce documentation which is listed as the other basis for denial, the Respondent admits that ultimately all other available documentation has been submitted. It also admits that once English speaking counsel got into the picture everything that was requested was provided. The evidence here shows that between the two applicants $90,000 was provided from savings accounts in New Jersey and New York which, upon the testimony of the Petitioners, was generated out of the conduct of ongoing legitimate businesses for several years. The balance over the savings account deposits were paid in cash and the Petitioners' tax records show that each applicant had income sufficient to generate this amount of cash.

    
    

18. The standards of Respondent, Division of Alcoholic Beverage and Tobacco, are subjective, not objective, and approval depends upon the interpretation by an agent of the sufficiency of the submitted documentation.

    There are no objective standards which outline the required documentation necessary to support an application and define the standards by which this documentation can be quantitatively analyzed.

    
    

19. On the balance it appears the petitioners have provided sufficient information to support the origin of this income even though admittedly this information was not produced in a timely fashion originally. However, an administrative hearing under Section 120.57(1), Florida Statutes, is a de novo proceeding and at this hearing the evidence provided by Petitioners is sufficient to explain the origin of the investment funds.

    
    

20. In light of the fact that the offenses of which Mr. Porto was charged, while felonies, nonetheless where not crimes involving violence or moral turpitude and in light of the fact that the State of New York has chosen to issue a certificate of relief followed by the issuance of a liquor license, it would appear there is scant reason to deny Mr. Porto a license in Florida.

RECOMMENDED ACTION

Based on the foregoing it is therefore,

RECOMMENDED that Petitioners Gumersindo Gonzalez and Miguel Porto be issued a 2-COP alcoholic beverage license for the premises outlined in the application.

Recommended in Tallahassee, Florida, this 25th day of July 1984.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 25th day of July 1984.

COPIES FURNISHED:

William A. Hatch, Esquire 725 S. Bronough St.

Tallahassee, Florida 32301

Murray Meyerson, Esquire Second Floor East AmeriFirst Federal Bldg.

100 N.E. First Ave. Miami, Florida 33132

Gary R. Rutledge, Secretary Department of Business Regulation Johns Building

725 South Bronough Street Tallahassee, Florida 32301

Howard M. Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

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

Docket for Case No: 83-003298

Orders for Case No: 83-003298