STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 84-0132

) ALENO'S ENTERPRISES, INC., d/b/a ) RANDY'S SUBS #41 )

)

Respondent. )

)

RECOMMENDED ORDER

After notice was properly given to the parties, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with Division of Administrative Hearings, on January 30, 1984, in DeLand, Florida. The issue for consideration in the hearing was whether Respondent's liquor license should be revoked or disciplined because of the allegations contained in the Notice to Show Cause filed in the case.

APPEARANCES

For Petitioner: James N. Thatson, Jr., Esquire

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

For Respondent: James R. Clayton, Esquire

105 West Wisconsin Avenue, Suite 205 DeLand, Florida 32720

BACKGROUND INFORMATION

Petitioner, Division of Alcoholic Beverages and Tobacco, on some date shortly prior to December 21, 1983, issued a Notice to Show Cause in this case to Aleno's Enterprises, Inc., trading as Randy's Subs #41, containing allegations that starting on or about April 1, 1983, and up until the date of the Notice, Respondent did not qualify for an APS alcoholic beverage license such as was issued to it pursuant to Section 565.02(3)(a), Florida Statutes, and also that Respondent, during the same period, unlawfully sold alcoholic beverages as package sales in violation of Rule 7A-3.13, Florida Administrative Code, and Section 561.29(1)(e) , Florida Statutes. The license in question here was number 74-1565.

Though not initially made a part of this action, Division of Alcoholic Beverages and Tobacco filed identical Notices to Show Cause against Respondent's other two APS licenses, numbers 74-1566 and 74-1567, which were issued to Respondent trading as Randy's Subs #42 and #43, respectively.

Thereafter, Respondent, through a letter of counsel dated December 21, 1903, requested a hearing on all three proposed disciplinary proceedings. Those two actions relating to licenses 74-1566 and 74-1567 were not forwarded to the Division of Administrative Hearings along with the instant case and were not, at the time of the hearing, formally filed with this office. However, both Parties agreed that all three cases were identical except for the license number and the individual facility to which it relates. As a result, both parties entered into a joint oral motion for consolidation requesting that the undersigned hear evidence on all three licenses and issue a recommended order on all three. This motion was granted by the Hearing Officer.

At the hearing, Petitioner called Barry Schoenfeld and introduced Petitioner's Exhibit 1. Respondent presented the testimony of Louis M. Clark, Jimmie E. Powell, and Randall R. Aleno and introduced Respondent's Exhibits A-C.

RECOMMENDATION

That Respondent's licenses be revoked without prejudice so as to permit Respondent or its officers to, in the future, apply for the issuance of a beverage license, if otherwise qualified.

RATIONALE FINDINGS OF FACT

1. At some time prior to March 1, 1963, Randall R. Aleno, a former deputy sheriff with the Volusia County, Florida, Sheriff's Department; his brother, Mick Aleno; his father, Charles Aleno; and his wife, Patty Aleno, formed Aleno's Enterprises, Inc., a Florida corporation, with Randall Aleno owning more than 50 percent of the corporate stock. Randall Aleno is the corporate president; Mick Aleno,the vice president; Charles Aleno, the treasurer; and Patty Aleno, the secretary.

   
   

2. Having been a long-time resident of Volusia County, Randall Aleno saw a need for and developed a concept for a form of mobile concession stands to operate on the St. Johns River in the general area of Volusia County and the contiguous counties north and south of it.

   
   

3. Before taking any definitive steps toward implementing this idea, Randall Aleno, on January 10, 1983, wrote letters both to the Commanding Officer of Port Operations for the U.S. Coast Guard in Jacksonville, Florida, and a representative of the Volusia County Health Department outlining in general terms the nature of his plan and seeking approval of those agencies for the project. Apparently, neither agency interposed any objection.

   
   

4. He also contacted the local office of the Petitioner, Division of Alcoholic Beverages and Tobacco, where he spoke with Agents Dunbar, Blanton, and Clark, outlining his proposal. On at least one occasion, Mr. Aleno told Division of Alcoholic Beverages and Tobacco representative Clark, while at the counter in the Division of Alcoholic Beverages and Tobacco Daytona Beach office, that he intended to make bulk sales of beer from boats tied to buoys in the St. Johns River at the time of sales, but which would, when not in operation, be

   moored at the Tropical Marina in DeLand, Florida. In Dir. Clark's opinion, this type of proposed operation was not covered or provided for in the statutes or in the rules of the Division and he felt the applications for licenses for these operations should he denied. According to Mr. Clark, when he advised Mr. Aleno of this on several occasions, Mr. Aleno still wanted to try and submitted the application.

   
   

5. At some time during this period, Mr. Aleno, who had been with the sheriff's office for 14 years, retired from that employment, 1/ purchased three houseboats (one 39-foot boat and two 26-foot boats) which he thoroughly rehabilitated to be capable of storage and the sale of sandwiches and package sales of soft drinks and beer. The sandwiches to be sold were to he pre- wrapped, the beverages in cans, coffee in styrofoam cups with lids, and all condiments would be in sealed packages. No food or drink was to be opened or consumed on board the boats, floating concession stands. When the boats were completed, because he had been told by Division of Alcoholic Beverages and Tobacco agents at the Daytona Beach office that a license would not be issued to a moving establishment, he secured a boat slip for each boat at the Tropical Marina.

   
   

6. Mr. Aleno picked up the applications for beverage licenses from the Daytona Beach office. Me also wrote to a beverage supervisor at the Jacksonville office in an effort to prepare the way for his applications. Mr. Aleno was told, at some point in the procedure, that he would need to submit copies of the plans, the boat layouts and details of the operation. All of these, in addition to the letters from the Coast Guard and the county health department, were submitted for consideration with the applications.

   
   

7. Mr. Aleno attempted to describe his proposal to each official with whom he came into contact. The local Division of Alcoholic Beverages Supervisor, Lt. Powell, and Mr. Clark admit that Mr. Aleno told them what he planned to do with his operation and how it would work. Lt. Powell reviewed the complete application and discussed it with Mr. Clark. He, Powell, was aware that the sales of unopened packages of beer would be made out on the river and not at the Tropical Marina before the application was forwarded to Tallahassee for action, but there was nothing written in the application to indicate the sales would be made up and down the river. The applications showed the location of the premises as Tropical Marina, Slips 41, 42 and 43. The applications were forwarded to Tallahassee in the normal course of business apparently without recommendation one way or the other by the local office. The licenses were issued on April 1, 1983, showing their location as Tropical Marina, Slips 41, 42 and 43, respectively, Lakeview Road, DeLand, Florida. The 1-APS licenses were issued to Aleno's Enterprises, Inc. trading as Randv's Subs #41, 42 and 43. (License Numbers 74-1565, 74-1566, and 74-1567)

   
   

8. Respondent does not operate its boats as a steamship line. It does not carry people, other than employees, on the boats for pay or gratis. None of the boats go more than 100 miles in either direction from the point of mooring. Respondent has not been selling beverages for consumption on the premises, but has been making package sales only of beer off the boats.

   
   

9. Barry Schoenfeld, Chief of Licensing Records for Respondent in Tallahassee, reviewed these applications and the license files sometime during the summer of 19-83 after the licenses were issued. His review of the files led him to conclude that the Respondent's operation does not qualify for a 1-APE license because the boats are not permanently moored at their docks. Florida Beverage Laws require, generally, a fixed permanent structure. There are some

   exceptions for movable vehicles such as steamships, trains, and airplanes and also for pleasure boats which go more than 100 miles per outing. He believes Respondent's boats would qualify for this latter license which, however, is a COP license, not an APS license. He has thoroughly examined the Respondent's applications; and the way the total file reads, it gives him the impression the boats would be moored at the dock in a fixed permanent location. This is why the licenses were issued. Since an obvious mistake was made, and since Mr.

   Schoenfeld did not know of any provision in the Florida Beverage Law which covers an operation such as that of Respondent, in the summer of 1983, he called Respondent, speaking with Mrs. Patty Aleno, and advised her the operation would have to cease. Upon advice of counsel, Respondent did not stop the operation at that time.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. The Notices to Show Cause issued in these cases by Petitioner allege that because Respondent does not operate a steamship or steamship line, it does not gualify for a beverage license pursuant to Section 565.02(3)(a) , Florida Statutes (1981)(Allegation 1), and that Respondent in each case sold alcoholic beverages in violetion of Rule 7A-3.13, Florida Administrative Code, and Section 561.29(1)(e), Florida Statutes (1901)(Allegation 2)

    
    

12. Section 565.02(1), in its various subsections, provides for state license taxes to be imposed, in the sum described, for various categories of vendors of alcoholic beverages, regardless of alcoholic content. Subsection (c) provides for a license tax in an establishment where beverages are sold only in sealed containers for consumption off the premises where sold. This provision, it would appear, would apply to Respondent's operations were it not for the provision of Rule 7A-3.08, Florida Administrative Code, which requires that the licenses must be for a permanent location at which the business is to be operated. It is clear that Respondent is not willing to conduct its operation solely from its slips at the Tropical Marina.

    
    

13. It is also clear from the evidence presented that Respondent does not operate the business at the Tropical Marina in DeLand, but merely moors the boats there when they are not engaged in Respondent's business out on the river. Respondent's business is conducted from the temporary moorings on the river, which can change from time to time. Consequently, Respondent would not qualify for a package store license.

    
    

14. Subsection 565.02(3)(a) authorizes operators of steamships and steamship lines to obtain licenses for consumption on the premises on its boats or in one passenger waiting lounge operated at its terminal, except that this license is not required for operation of pleasure or excursion boats not having regular round-trip runs of more than 100 miles in each direction. An operator such as described here could get a different type of consumption-on-premises license. Rule 7A-3.00 implements this statutory provision.

    
    

15. Again, however, this license would not be appropriate for Respondent's boats because Respondent does not carry passengers and cannot be classified as either the operator of a steamship line or a pleasure boat. As a result,

    Subsection 565.02(3)(a) does not apply, and Respondent is not properly licensed. As a result, its package sales from nonfixed locations violate the provisions of Rule 7A-3.13, which provides for boat operators to sell for consumption on the premises to the passengers in transit and, in turn, the provisions of Subsection 561.29(1)(e), which provides for revoking or suspending the license of any vendor when there is shown a:

    
    

    Violation by the licensee, or, if a corporation, by any officer or stockholder thereof, of any rule or rules promulgated by the division in accordance with the provisions of this chapter or of any law

    referred to in paragraph (a), or a violation of any such rule or law by any agent, servant, or employee of the licensee on the licensed premises or in the scope of such employment.

    
    

16. Since, therefore, it is obvious that under the factual situation here, the licenses in question were improperly issued, and since the issue of estoppel is not appropriate here, Respondent must somehow be divested of its licenses.

    
    

17. There has been no showing of any illegality in the applications for the licenses or any misrepresentations made by Respondent with regard to the applications. Therefore, it would be undoubtedly inequitable to revoke the licenses so long as revocation, with the stigma of impropriety and discipline that go along with it, results in a possible barring of Respondent from later applying for and securing the appropriate license of its own desire.

18. Section 561.15, Florida Statutes (1991), provides, in part: Any license issued to a person, firm,

    or corporation that would not gualify for the issuance of a new license or the transfer of an existing license may be revoked by the division.

    
    

    Subsections (3)(a) and (c) of the same section permit the refusal to issue a license under the Beverage Law to:

    
    

    1. Any person, firm, or corporation the license of which under the Beverage

       Law has been revoked or has been abandoned after written notice that revocation or suspension proceedings had been or would be brought against the license;

       * * *

       (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.

       
       

       It would be patently unfair to restrict Respondent corporation or any of its officers from, in the future, securing a beverage license, if otherwise

       qualified, solely because Respondent corporation's licenses were revoked under the circumstances shown here. If recision of the license were a viable alternative, it would undoubtedly be more appropriate. Since it is not, and revocation is the only available option, it must be applied here.

       
       

19. The Petitioner has submitted a memorandum of law which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

RECOMMENDATION

Based upon the foregoing, it is

RECOMMENDED that Respondent's 1-APS licenses #74-1363, 74-1566, and 74-1567 be revoked without prejudice to Respondent, or any of its officers, to apply for issuance of appropriate licenses if otherwise qualified.

RECOMMENDED this 29th day of February, 1984, in Tallahassee, Florida.

ARNOLD H. POLLOCK

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 29th day of February, 1984.

ENDNOTE

1/ Though his retirement eligibility was vested due to his length of service, he does not currently draw any retirement pay

because be is still under 35 years of age.

COPIES FURNISHED:

James N. Watson, Jr., Esquire Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32301

James R. Clayton, Esq.

10-5 West Wisconsin Avenue Suite 205

DeLand, Florida 32720

Mr. Gary R. Rutledge Secretary

Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32301

Mr. 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: 84-000132

Orders for Case No: 84-000132