STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROLYN K. PETERSON, )

)

Petitioner, )

)

vs. ) Case No. 85-3517

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

)

Respondent. )

)

RECOMMENDED ORDER

The first part of the final hearing in this case was held in Orlando on March 7, 1986. The final hearing was completed on April 7, 1986, with the testimony of Carolyn Thompson taken by telephone conference call.

APPEARANCES

For Petitioner: Carolyn K. Peterson

797 Pinetree Road

Winter Park, Florida 32789

For Respondent: Thomas A. Klein, Esquire

Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32301

The issue is whether Petitioner, Carolyn K. Peterson, failed to timely file an application for a quota alcoholic beverage license. Since the facts are clear that Peterson's application was filed out of time, the only issue is whether representatives of Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), told Peterson that she could file a later application without prejudice, thereby estopping the Division from maintaining that Petitioner's application was filed untimely.

FINDINGS OF FACT

1. Petitioner, Carolyn K. Peterson, entered a drawing held by Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), on September 12, 1984, for priority entitlement to apply for one of thirteen new quota alcoholic beverage licenses to be issued for Seminole County. Peterson initially was not successful, having been ranked 15.

   
   

2. Later, three applicants selected in the September 12 1984, drawing failed to qualify or file a proper application. By letter dated January 25,1985, the Division notified Peterson that her ranking now entitled her to apply For licensure. The January 25, 1985, letter informed Peterson "you must file a full and com- plete application within 45 days of the date of this letter pur- suant to Rule 7A-2.17, Florida Administrative Rule." The letter also notified Peterson: "Failure to file your complete application within such 45 day period will be deemed a waiver of your right to file for the new quota license." The Division consistently follows Rule 7A-2.17.

   
   

3. On February 4, 1985, Peterson and her husband went to the Division's Orlando office to inquire concerning application for licensure. Peterson's husband, who had experience in applying for quota alcoholic beverage licenses, inquired whether it was necessary to jump through the procedural hoop of having a location selected and reflected in the application only to put the resulting license in escrow while seeking a more suitable license location within 180 days. The Division's representative, former employee Carolyn Thompson, responded that applicants no longer had to jump through that procedural hoop but could leave the designation of the location of the license blank on the initial application so long as a suitable location was selected and the application updated within 180 days. Thompson partially typed the application forms for Peterson, duplicated them so that Peterson could file the completed application in duplicate as required, and kept a copy for the Division's files. Thompson also gave Peterson, and kept a copy of, an instruction form for completion of Peterson's application.

4. Thompson did not explicitly tell Peterson or her husband that Peterson could file the completed application after the expiration of the 45 day time limit. The Petersons confused the 45-day deadline for filing a full and complete application with the 180-day deadline for obtaining an appropriate location and zoning approval. As a result, the Petersons misunderstood and believed that the application was not required to be completed and filed within 45 days.

   
   

5. After the February 4, 1985 meeting, the Petersons inquired about the process of finding a suitable location with

   suitable zoning. Meanwhile, they let the 45-day time limit ex- pire without filing a full and complete application.

   
   

   CONCLUSIONS OF LAW

   
   

6. Rule 7A-2.17, Florida Administrative Code, requires successful quota alcoholic beverage license lottery winners to file a full and complete application within 45 days of notification of selection in the lottery. The rule also specifies: "Failure to file an application within such 45-day period shall be deemed a waiver of the applicant's right to file for a quota liquor license." The Division consistently follows Rule 7A-2.17.

   
   

7. The courts have consistently held that estoppel of the State requires a positive act or statement by a government official. Gay v. Inter-County, INC., Tel. & Tel. Co., 60 So. 2d

22 (Fla. 1952); Department of Administration v. Flowers, 356 So. 2d 14 (Fla. 1st DCA 1978); Greenhut Construction Co. v. Henry Knott, Inc., 247 So. 2d 517 (Fla. 1st DCA 1971). In this case, there was no positive statement to Peterson that she could file her application after the 45-day deadline notwithstanding Peterson's misunderstanding that she could. Moreover, as a general rule, equitable estoppel would be applied against the State only in rare instances and under exceptional circumstances. North American Co. v. Green, 120 So. 2d 603 (Fla. 1959). The facts of this case reflect none of the exceptional circumstances found in cases in which the State has been estopped. See Department of Revenue v. Anderson, 389 So. 2d 1034 (Fla. 1st DCA 1980); George W. Davis & Sons, Inc. v. Askew 343 So. 2d 1329 (Fla. 1st DCA 1977). Peterson has failed to prove in this case that the Division is estopped from enforcing the 45-day deadline against her.

RECOMMENDATION

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, deny the application of Petitioner, Carolyn K. Peterson, for a quota alcoholic beverage license.

RECOMMENDED this 9th day of May, 1986, 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 May, 1986.

COPIES FURNISHED:

Ms. Carolyn K. Peterson 797 Pinetree Road

Winter Park, Florida 32789

Thomas A. Klein, Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Thomas A. Bell, Esquire General Counsel.

Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32301

Howard M. Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

James Kearney, Secretary Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

APPENDIX

To the extent Petitioner's written final argument contains proposed findings of fact, they are rejected as contrary to the greater weight of the evidence and the Findings of Fact.

Respondent's proposed findings of fact 1 through 5 are accepted, but 4 is subordinate and 5 is unnecessary.

Docket for Case No: 85-003517

Orders for Case No: 85-003517