STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LEE COUNTY LIQUORS, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 84-3084
)
DEPARTMENT OF BUSINESS )
REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )
)
Respondent. )
)
RECOMMENDED ORDER
For Petitioner: Leslie T. Ahrenholz, Esquire
Ft. Myers Beach, Florida
For Respondent: Sandra P. Stockwell, Staff Attorney
Tallahassee, Florida
A hearing was held in this case in Ft. Myers on May 28, 1985. By agreement, the evidentiary record remained open until the filing on June 26, 1985, of the transcript of the deposition of J. Foster Pate, Jr., which was received in evidence as Joint Exhibit A.
The issue in this case is whether respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), should issue to petitioner, Lee County Liquors, Inc. (petitioner), a quota alcoholic beverages license. Preliminary to these formal administrative proceedings, the Division had given Petitioner notice of its intent to deny Petitioner's application for licensure on two grounds:
The suspected interest of an undisclosed third party in the proposed license; and
The suspected failure to Petitioner to secure a right of occupancy to the premises of the proposed license.
FINDINGS OF FACT 1/
On November 4, 1981, Kathryn A. Riddle, individually filed a preliminary application seeking inclusion in the lottery for a quota liquor license in Lee County, Florida.
Instructions contained on the preliminary application notify applicants: that it is only the first part of a two part application process; that the second part will be provided if the applicant is selected in the drawing; and that the second part will require zoning approval and right of occupancy.
No investigation is done with respect to information contained on preliminary applications. That application appearing to be complete and showing no disqualification, Riddle's name was included in the lottery held on December 16, 1982.
On January 5, 1983, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division) notified Ms. Riddle that she was selected in the drawing for a license available in Lee County. The notification again advised Riddle that the completed application must be filed and would include location and zoning approval among other things. Riddle was also advised that the Division had only 180 days to act upon her application.
In early 1983, O.C. Allen, Jr. and his wife, Sandra Biebber Allen, became interested in acquiring interests in quota alcoholic beverage licenses that were in the process of being issued as a result of drawings held in 1982. Each was able to obtain a separate interest in separate corporations which had a right to apply for a license in the Ft. Myers area. Although Mrs. Allen is a Gainesville lawyer, the Allens retained the services of a Tallahassee attorney, Dennis LaRosa, to assist them and the corporations in which they had acquired an interest in the application process.
In the course of their application processes, the Allens became interested in the idea of forming a type of cooperative with other licensees in the Ft. Myers area for purposes of pool purchasing. They contacted Riddle about the idea and persuaded her to consider transferring her right to apply for a quota license to a corporation to be formed. Riddle would be the majority stockholder and chief executive officer of the corporation, and Mrs. Allen's sister, Francine Wunk, would be the minority stockholder and would provide financing for the operation of the licensed business.
LaRosa had some contact with the Allens in connection with their negotiations with Riddle. The arrangements the Allens suggested to Riddle were similar to those which LaRosa already had counseled them to enter into with the two Ft. Myers area quota license lottery winners. On or about May 20, 1985, LaRosa formed a corporation named Lee County Liquors, Inc. (Petitioner) to be used as the vehicle for such an arrangement if the Allens were able to complete their negotiations with Riddle on behalf of Wunk.
As the 180-day deadline approached, the Allens notified LaRosa that negotiations were completed. LaRosa obtained a power of attorney on behalf of his client, Wunk, and traveled to Ft. Myers on June 10, 1983, to close the transaction among Petitioner, Riddle and Wunk. LaRosa, the Allens, and Riddle met in the offices of a Ft. Myers law firm and executed necessary documentation. Mrs. Allen was there in her capacity as Wunk's lawyer as well as her sister. Riddle did not have legal counsel. As a result of the closing, Riddle conveyed her right to apply for the available quota license to Lee County Liquors, Inc., the Petitioner. In exchange, Riddle received 51 percent of the shares of the corporation. The remaining 49 percent of the shares were purchased by Wunk in consideration for her promise to finance the corporation. Other documentation evidencing the agreements between Riddle and Wunk were executed (including a curious security agreement under which Wunk purported to pledge the liquor license to be applied for by use corporation to secure Wunk's obligations to Riddle and the corporation.)
In addition, all in attendance at the closing were aware that it was necessary to obtain a right to occupancy of the premises proposed to be licensed in an application to the Division. Some efforts had been made to secure
premises, but there still was no right of occupancy. LaRosa and Mrs. Allen instructed Allen to secure a suitable premises. Allen went to Pate Associates, but no general partner was available to sign a lease. Telephone calls were made, and J. Foster Pate, Sr., authorized an office assistant to sign a binder letter for Suite 102, Pine Brook Park. Allen signed as agent for Petitioner and left a $500 check drawn by him on his personal account as a deposit on behalf of Petitioner. Allen accidentally dated the check June 10, 1984.
Allen returned with a binder letter, but the Division would not accept it signed by him. As a courtesy to LaRosa, the Division's Ft. Myers office agreed to hold Petitioner's application until Petitioner was able to secure proper documentation of its right of occupancy. Since LaRosa already had executed on behalf of Petitioner an open-ended waiver of the 180-day time requirement for Division action. LaRosa executed the waiver voluntarily and knowingly after having been advised by Division personnel that the Division would be forced to disapprove the application without the waiver because it would have no time to discharge its statutory duty to investigate the application before approval. Therefore, there was no obstacle to granting LaRosa this favor so that he could return to Tallahassee.
On Use next business day, Riddle went to Pate Associates and entered into a business lease with Pate Associates, by J. Foster Pate, Jr., for Suite 140, Pinebrook Park Complex. Riddle added this business lease, minus Clause 26, to Petitioner's application.
On June 14, 1983, the second part of the application filed by Petitioner was accepted as being complete on its face by the Division. That application recited under oath that the names of all persons connected directly or indirectly in the business for which the license was sought were Kathryn Riddle and Francine Wunk. The application also recited that Petitioner had a legal right of occupancy to Pinebrook Park, 9600 South Tamiami Trail, Fort Myers, Lee County, Florida commencing October 1, 1983. No amendments to the application have been filed with the Division.
In support of its assertion that it had a legal right of occupancy to Pinebrook Park, Petitioner included with its application a copy of the form business lease with Pate Associates dated June 10, 1983 for Suite 140, Pinebrook Park complex. The lease was for a term of three years commencing on June 1, 1983 and ending on the last day of May 1976. Typed additions to the form provided for tax escalation (Clause 22), signs (Clause 23), and improvements (Clause 24). Clause 25, also a typed addition, recited:
This lease is contingent upon receipt of a liquor quota license by Lee County
Liquors, Inc., from the State of Florida and subject to approval of bank financing and other conditions as may be required by lessor.
The lease was signed by J. Foster Pate, Jr., a general partner of Pate Associates and by Kathryn Riddle for Petitioner. It was not witnessed.
Also enclosed with the application was the binder letter for Suite 102, Pinebrook Park signed on June 10, 1983 by Ocie Allen as agent for petitioner. This letter recited receipt of a $500 deposit. However, Suite 102 was rented to Weavers on June 15, 1983, and the $500 was applied toward the deposit of 1st and last months rent required by the lease for Suite 140.
On June 28, 1983, Division Investigator Robert Baggett, in the course of investigating the application, visited Suite 140, Pinebrook Park and sketched the premises, which were vacant at that time. Also on June 27, 1983, Baggett met with Riddle and requested documentation as to the financial investment of Wunk. Riddle referred Baggett to LaRosa as she had not yet met and did not know Wunk. On July 7, 1983, Baggett contacted LaRosa for documentation of Wunk's finances. But the documentation was not received until December 19, 1983.
On January 16, 1984, the Fort Myers district office prepared a transmittal to the Tallahassee central office, but the application was not received in Tallahassee until March 19, 1984. On July 27, 1984, the Division's Tallahassee office directed the Fort Myers district office to conduct additional investigation as to Allen's involvement and the availability of the premises.
On July 27, 1984, Baggett interviewed J. Foster Pate, Jr. At that time, Baggett obtained a copy of the $500 binder check, the original of which remains in Pate's possession, which was drawn on the personal account of Ocie C. Allen, Jr. Although the binder letter was dated June 10, 1983, the date on the check was June 10, 1984. Pate had not noticed the date on the check until Baggett brought it to his attention. The address printed on the check is Post Office Box 1022, Gainesville, Florida, which is also recited as the address for Francine Wunk on the security agreement filed with Petitioner's application.
During Baggett's interview with Mr. Pate, he also reviewed the lease in Pate's possession. The lease in Pate's possession differed from that filed with the Division by Petitioner. Pate's lease had attached to it on a separate sheet of paper and over his and Riddle's signature Clause 26, which provided:
Lease is valid and in full force upon receipt of balance of first and last months rent in the amount of $2,806.51.
No explanation was offered by Petitioner as to why Clause 26 was contained on a separate sheet of paper although it would have fit on the face of the form provided to the Division; nor was any explanation provided by the Petitioner as to why Clause 26 was omitted from the lease provided to the Division.
The $500 binder for Suite 102 was applied toward Suite 140, but the balance due for the deposit of first and last months rent was never paid. Pate had no further contact by Riddle or Allen or anyone else on behalf of Petitioner after the lease was executed, and Pate relet the premises on July 25, 1983.
Allen and Riddle both testified that they thought they had a binding lease for Pinebrook Park on June 10, 1983. Nevertheless, they continued to search for premises after that date, including in February 1984 and as recently as August 1984, when Allen requested Baggett's opinion of a rough draft of a lease for Petitioner on San Carlos Boulevard which Allen proposed to sign as agent for Wunk. Despite her assertions that the lease with Pate was binding, Riddle testified that the search continued in case something happened. Allen testified that the search continued because the Pate premises might not have been the most suitable. Neither could explain how they intended to get out of the "binding" lease with Pate. Although Allen could not explain why the binder check was post dated, he testified that he gave no thought to seeking any reimbursement from the corporation for his investment. Pate testified that he also believed the June 10, 1983 lease for Suite 140 was binding but he later
testified that he never deposited the $500 check because he did not want to tie up Suite 140 since others were negotiating with him for the space. It is his opinion that the "other conditions" language in Clause 25 would have allowed him to substitute suites under the lease at the time the contingencies were met.
Pate further testified that the deposit of the 1st and last months rent was not due until the license was received, although he also testified that in his experience he had never executed a lease containing contingencies without a deposit up- front. It is his assertion that the deposit paid for the contingent lease on Suite 140 was the post-dated $500 check which he never deposited for Use reason that he did not want to be obligated to produce the premises described in the lease to Petitioner.
Most applications for alcoholic beverage licenses show a present right of occupancy. However, if the time period is not unreasonable, the Division accepts applications which state a future date certain for right of occupancy. Although the application due by and filed on June 14, 1983 by Petitioner did not reflect a present right of occupancy, the occupancy date of October l, 1983, specified by Petitioner was deemed reasonable by the Division, and the application was accepted as complete by the Division.
Due to the regulated nature of the industry generally, tax revenues derived therefrom, and the absence of any provision in the law which would prompt a licensee to obtain premises otherwise, the Division does not grant a license until premises are available to which to issue the license. In those instances, as here, where the right of occupancy arises, according to the applicant, at a future date certain, the Division attempts to coordinate Use grant and issuance of the license with the availability of the premises.
Both Riddle and Wunk are qualified persons as those terms are defined by Section 561.15, Florida Statutes.
Petitioner, Lee County Liquors, Inc., is a valid Florida corporation and is a permissible form of doing business as an alcoholic beverages licensee. The Division raised no objection to its officers, directors or shareholders, Riddle and Wunk.
The evidence proves that Allen had no pecuniary interest in Petitioner. His interest arose out of his concern for his sister-in-law, Wunk, and his desire to please his wife, Wunk's sister. In addition, Allen had an interest in the future possibility of being able to deal directly with his sister-in- law, Wunk, in negotiating pool purchasing agreements and other business deals if Wunk bought out Riddle's interest in Petitioner at a future date, as the agreements included with the application gave her the option to do. This was the extent of Allen's interest in Petitioner and its business.
CONCLUSIONS OF LAW
Petitioner, as applicant, has the burden to prove its entitlement to an alcoholic beverage license. Astral Liquors, Inc. vs. Department of Business Regulation, 432 So.2d 93 (Fla. 3rd DCA 1983); Florida Department of Transportation vs. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981).
Section 561.17, Florida Statutes (1983), the provision governing applications for alcoholic beverage licenses in general, provides in pertinent part:
Any person, before engaging in the business of manufacturing, bottling, distri- buting, selling, or in any way dealing in alcoholic beverages shall file . . . a sworn application in duplicate on forms provided to to the district supervisor by the division. Prior to any application being approved, the division may require the applicant to file a set of fingerprints . . . for himself and for any person or persons interested directly or indirectly with the applicant in the business for which the license is being sought, when
so required by the division. If the applicant or any person who is interested with the appli- cant directly or indirectly in the business or who has a security interest in the license being sought or has a right to a percentage payment from the proceeds of the business, either by lease or otherwise, is not qualified,
the application shall be denied by the division.
The Division has, by its rules and forms, required disclosure of all persons interested directly or indirectly with the applicant in a business for which an alcoholic beverage license is sought.
Section 559.79, Florida Statutes (1983), provides in pertinent part:
Each application for a license issued by the Department of Business Regulation shall include a statement showing the name and address of each . . . person who, in accord- ance with the rules of the issuing agency,
is determined to be able directly or indirectly to control the operation of the business of
the licensed entity . . .
Rule 7A-3.17, Florida Administrative Code, sets out guidelines for determining whether a person other than the licensee is able directly or indirectly to control the operation of the business of a licensed entity. Rule 7A-3.17 provides, among other things, that the licensee "must be responsible for all debts of the business and legally entitled to all incomes therefrom." Rule 7A- 3.17(3)(d). It also provides that the licensee "must be primarily responsible for the rent, utilities and insurance covering the premises, and all other incidental expenses occasioned in the operation of the business." Rule 7A- 3.17(3)(h). Ultimately, however, the rule provides that the pole star determination is "who has ultimate over-all control and direction of the licensed premises under the terms of the agreement." Rule 7A-3.17(4).
As to the issue of an undisclosed direct or indirect interest by a third party, Petitioner proved that Ocie C. Allen, Jr. did not have either control of or a direct or indirect interest in the business to be licensed. Allen did make a check in payment of a $500.00 deposit on behalf of Petitioner in an effort to lease qualifying business premises. But, the proof was that Petitioner retained all of the responsibility for the rent and for all debts of the business. See Rule 7A- 3.17(3)(d)(h), Florida Administrative Code (1984 Annual Supp.). Likewise, Petitioner was entitled to all incomes from the business; Allen had no entitlement to income. Id. The proof was that there was
no relationship between Petitioner and Allen by which Allen would participate in any way with the operation of Petitioner or its business. Regarding Allen's interest in Petitioner and its proposed business, the proof was that Allen's interest was not a direct or indirect interest which was required to be disclosed. His interest may have been more than simply his concern for his wife's sister and his desire to please his wife, as he testified, but his interest was no more than possibility that his wife's sister would be more willing than an unrelated third party to enter into business deals with Allen and his wife at some future date if his wife's sister acquired control of Petitioner at a future date. as contemplated by the agreements entered into among her, Riddle, and Petitioner. See White vs. Beary, 237 So.2d 263 (Fla. 1st DCA 1970); Wilkenfeld vs. Meiklejohn, 216 So.2d 237 (Fla. 1st DCA 1968).
Section 561.17(2), Florida Statutes (1983), provides:
All applications for alcoholic beverage licenses for consumption on the premises shall be accompanied by a certificate of the Department of Health and Rehabilitative Services or the county health department that the place of business wherein the business is to be conducted meets all of the sanitary requirements of the state.
In addition, Rule 7A-3.08, Florida Administrative Code, provides in pertinent part:
A vendor must have a different license for each place of business operated.
All licenses . . . must be for a permanent location at which the business is to be operated
Section 561.18, Florida Statutes (1983), provides:
After the application has been filed with the local district office supervisor, the district supervisor shall cause the applicator to be fully investigated, both as to qualifications of the applicants and a manager or person to be in charge and the premises and location to be
sought to be licensed, except that, in the event of any licenses issued pursuant to
s. 561.19(2), the division shall cause only those applications selected by public drawing in the order selected to be fully investigated.
Section 561.19(2), Florida Statutes (1983), establishes a random drawing process by which the division determines the order in which applicants for a limited number of available quota licenses are considered for licensure. Section 561.19(2), Florida Statutes (Supp. 1984), provides in pertinent part:
Subject to this selection process, if an applicant is found qualified as provided 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 question raised by the above quoted language of Section 561.19(2) whether a two-phased consideration of license applications is established is significant in this case. The quoted language suggests that the qualifications of the applicant only are to be considered in determining whether to "grant" a license and that the qualification of the premises to be licensed need not be considered until the license is to be `-issued." But statutes covering the same subjects must, of course, be read together. See City of Boca Raton vs. Gidnan, 440 So.2d 1277 (Fla. 1983). A review of the unadvised use of different and confusing terminology in related legislation leads to the conclusion that the apparent distinction between granting and issuing a license suggested in the quoted language is born only of poorly written legislation, not of any legislative intent to distinguish the two.
Section 561.19(1), Florida Statutes (Supp. 1984), provides:
Upon the completion of the investigation of an application, the division shall approve or disapprove the application. If approved,
the license shall be issued upon payment to the division of the license tax hereinafter provided. (Emphasis added.)
This distinction between approval of an application and issuance of the license is similar but not identical to the distinction in Section 561.19(2) between the granting and issuing of a license.
Next, Section 561.19(4), Florida Statutes (Supp. 1984), provides in pertinent part:
The granting of licenses pursuant to sub- section (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 in the Florida Administra- tive Weekly or, in the event no drawing is held within 180 days of the final date for the filing of the applications. (Emphasis added.)
This language may be read either to support the concept of a two- phased consideration of applications under Section 561.19(2), or to imply that the entire process referred to in Section 561.19(2), including consideration of the qualifications of the premises to be licensed, is to be viewed as the process by which licenses are "granted."
Adding to the confusion, Section 120.60, Florida Statutes (Supp. 1984), provides in pertinent part:
. . . Every application for a license shall be approved or denied within 90 days after receipt of the original application
The 90-day . . . period will be
tolled by the initiation of a proceeding under
s. 120.57 and will resume 10 days after the recommended order is submitted to the agency. Any application for a license
which is not approved or denied within the 90-day . . . period, . . . or within 45 days after the recommended order is submitted
to the agency and the parties, whichever is latest, shall be deemed approved; and, subject to the satisfactory completion of an examination, if required as a pre- requisite to licensure, the license shall be issued. . . . Each agency, upon issuing or denying a license, shall state with particularity the grounds or basis for the issuance or denial of the license, except when issuance is a ministerial act. On denial of a license application on which there has been no hearing, the denying agency shall inform the applicant of any right to a hearing pursuant to s. 120.57.
Each applicant shall be given written notice either personally or by mail that the agency intends to grant or deny, or has granted or denied, the application for license. (Emphasis added.)
And finally, Section 561.29(1)(h), Florida Statutes (1983), refers to "the acquisition of the license by the licensee, regardless of the date the license was originally issued" in determining the commencement of a licensee's obligation to operate licensed premises.
Taken together, the legislative language is not unambiguous and does not compel the conclusion that Section 561.19(2) provides for a two-phased consideration of applications by which licenses are "granted" within the 180-day time limit established by Section 561.19(4), but not issued until some indeterminable date in the future on which the applicant secures a location which the division approves and pays the license-tax and fee referred to in Subsections (1) and (5) of Section 561.19.
A two-phased application process would give an applicant an opportunity to avoid the requirement of Section 561.29(1)(h) to actively operate a licensed premises by simply delaying the second phase of the application process. The evidence was that the Division has construed the applicable statutes to avoid this result by requiring applicants selected in a quota lottery to establish right to occupancy of an approvable location. The Division requires this to be done in the application itself. See Rule 7A-2.17, Florida Administrative Code (1984 supp.). The application form requires right to occupancy, too. Finally, the evidence was clear that Petitioner was fully aware of the Division's requirement that right to occupancy of an approvable location be included in its application and established to the satisfaction of the agency.
An administrative construction of a statute by an agency charged with its administration is entitled to great weight. Dept. of Insurance vs. Southeast Volusia Hosp. Dist., 438 So.2d 815 (Fla. 1983). Like others, this
rule of construction applies where, as here, the statutes are ambiguous. See Braddy vs. Southern Bell Tel. & Tel. Co., 458 F.2d 666 (5th Cir. 1972).
Logically, the more ambiguous the statutes, the more deference should be given to the agency interpretation. In these circumstances, the agency's interpretation need not be the sole or even most desirable one, but need only be within the range of possible interpretations. Dept. of Prof. Regulation vs.
Durrani, 455 So.2d 515 (Fla. 1st DCA 1984).
The Division's interpretation of the statutes in question here is well within the range of possible interpretations. It prevents applicants from avoiding the requirements of Section 561.29(1)(h), of even greater concern in relation to quota licenses. Therefore, it must be concluded the language of Section 561.19(2) prohibiting issuance of a license "until and unless the applicant establishes to the satisfaction of the Director that the licensed premises qualify under the Beverage Law" does not create a two-phased application process. Rather, however ambiguous or superfluous, it must be construed simply (1) to stand for the proposition that an alcoholic beverage license is issued for a particular location which must qualify, not just to an applicant who must qualify, and (2) to give the Division additional authority to withhold issuance of a license if the applicant changes location or if a previously approved location becomes unapprovable.
As for the qualification of the premises, the evidence was that petitioner did not have a right to occupy the premises specified in the application at any time after approximately July 25, 1983. At no time did Petitioner amend its LIZ application or put the Division on notice of the specific identity of the location that actually would be licensed under the application. In fact, not even Petitioner knew the specific identity of the location to be licensed. Petitioner was not able to confirm that there was any space at all available to be leased from Pate Associates until Petitioner was able to take the deposition of J. Foster Pate, Jr., on July 6, 1985. Petitioner's failure to have a right to occupy the premises specified in the application on the date the right of occupancy was to have arisen or on any later date made it impossible for Use Division to discharge its duty to investigate the premises and location under Sections 561.17 and 561.18, Florida Statutes (1983). For this reason, Petitioner was not able to prove its entitlement to a license in this proceeding.
Petitioner cannot avail itself of its argument that the Division's unreasonable delay in the application process created Petitioner's difficulty in securing right to occupancy. Petitioner did not have a right of occupancy on or about October 1, 1983, as represented in the application. Nor did Petitioner amend its application for other premises to which Petitioner subsequently secured a right of occupancy. In either of those two circumstances, the legal implication of the Division's delay might be different. But there is no need to resolve that legal issue on the facts of this case.
Finally, Petitioner is not entitled to licensure by default. Section 561.19(4), Florida Statutes (Supp. 1984), modifies the provisions of Section 120.60, Florida Statutes (Supp. 1984), at least to the extent that it extends to
180 from 90 days the time within which the Division must either approve or deny licensure. In this case, Petitioner, through its attorney, waived its right to require approval or denial within the 180 days. 4/
Petitioner's waiver was given voluntarily and knowingly. The Division merely accurately told Petitioner's attorney that it would be legally obligated to deny Petitioner's application without a waiver because it would not have been
able to complete the investigation required by Sections 561.17 and 561.18, Florida Statutes (1983) before the expiration of the 180-day deadline established by Section 561.19(4), Florida Statutes (Supp. 1984). The Division's statement did not destroy Petitioner's free will not to execute the waiver. If Petitioner had not executed a waiver, the Division would have denied Petitioner's application on or about June 16, 1983, and this administrative proceeding would have been initiated within approximately 30 days from the denial instead of more than one year later. See Cooper vs. Cooper, 69 So.2d 881 (Fla. 1954); Corporacion Peruana de Aeropuertos y Aviacion Comercial vs. Boy, 180 So.2d 503 (Fla. 2nd DCA 1965).
Nor was Petitioner's waiver given under legal duress. Legal duress cannot exist without there being a threat to do some act which the threatening party has no legal right to do. See 11 FLA.JUR.2d Contracts, Sec. 38 (1979). Here, without a waiver of the 180-day deadline, the Division would have had not only the legal right but the legal obligation to deny Petitioner's application.
Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order in this case denying the application of Petitioner, Lee County Liquors, Inc. for a quota alcoholic beverage license.
RECOMMENDED this 9th day of August, 1985 in Tallahassee, Florida.
J. LAWRENCE JOHNSTON 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 9th day of August, 1985.
ENDNOTES
1/ Both parties submitted proposed findings of fact. The proposed findings of fact were reviewed, and the following Findings Of Fact attempt to rule, either directly or indirectly, on each proposed finding of fact. Proposed findings of fact which were approved and adopted are reflected in the following Findings Of Fact. Where proposed findings of fact are not reflected and no direct ruling rejecting them is apparent, the proposed findings of fact have been rejected as being subordinate, cumulative, immaterial or unnecessary.
2/ At final hearing, the Division objected to the admission of Petitioner's Exhibit A in evidence. Since the Hearing Officer had not yet had an opportunity to review the exhibit, ruling on the objection was reserved. It is now ruled that portions of Petitioner's Exhibit A--from line 10 on page 37 through line 21 on page 40 and from line 9 on page 42 through line 25 on page 44--contain pure
legal conclusions on the proper interpretation of Section 561.19(2), Florida Statutes (Supp. 1984), and on the elements of waiver. Cf. paragraph 14 below. Those portions of the exhibit are there7ore inadmissible and are not received in evidence; the balance of Petitioner's Exhibit A is received in evidence.
3/ The Division's rules are not particularly helpful in resolving the questions raised by the terminology in the legislation. On the contrary, Rule 7A-2.17(7), Florida Administrative Code (1984 Annual Supp.) adds additional terminology, providing: "The Division shall accept final applications from and shall award quota licenses only to the person or persons listed on the application for inclusion in the random drawing and whose application received a successful priority number in such drawing, provided such persons are qualified under the Beverage Laws." (Emphasis added.)
4/ No issue has been raised in this case whether the Division and an applicant for a quota license have the ability to waive the 180-day time limitation notwithstanding Use existence of applicants for quota licenses whose applications will not be considered unless an applicant with priority consideration is denied.
COPIES FURNISHED:
Leslie T. Ahrenholz, Esquire Post Office Box 2656
Ft. Myers Beach, Florida 33931
Sandra P. Stockwell Staff Attorney Department of Business
Regulation
725 S. Bronough St. Tallahassee, Florida 32301
Howard M. Rasmussen Director
Division of Alcoholic Beverages and Tobacco
Department of Business Regulation 725 S. Bronough St.
Tallahassee, Florida 32301
Richard B. Burroughs, Jr. Secretary
Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Aug. 09, 1985 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 09, 1985 | Recommended Order | Division of Alcoholic Beverage and Tobacco (DABT) interpretation of ambiguous statutes, to mean applicant for quota liquor license had to have approvable location in application, approved. |
