Allen, Louis S. Viglione, and Frederick H. Mills, Jr., together with Respondent's Exhibits 1, 2, and 4-8 admitted in evidence. The parties filed post-hearing deposition testimony of Joseph H. Forbes and Thomas A. Klein.
The parties filed proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have been considered. A ruling has been made on each proposed finding of fact in the Appendix hereto and made a part hereof.
By Stipulation filed September 11, 1986, the parties agreed to findings of fact 1-11.
Donna Sawyer filed a preliminary application to participate in the state lottery for liquor license on January 20, 1984, on Department of Business Regulation form No. 747L.
On September 18, 1984, Donna Sawyer was notified by Respondent that she had been selected in the lottery held on September 12, 1984, to be eligible to apply for a state quota liquor license.
That on or about November 2, 1984, Donna Sawyer, acting through her wholly owned corporation, Sarasota County Liquors, Inc., filed a sworn "application for Alcoholic Beverage License" (Department of Business Regulation Form No. 700L), with the Division of Alcoholic Beverages and Tobacco. That application included a description of a location which was to be the licensed premises. A Personal Questionaire, Department of Business Regulation Form 710L, was also included by Petitioner with said application.
The license application was denied by Respondent on March 8, 1985. The grounds for the denial as stated in the denial letter were Petitioner's failure to provide: (1) proof of right of occupancy to the premises Petitioner was seeking to license; (2) verification of financial investment; (3) business name, and (4) sketch of the premises affixed to the application.
On April 10, 1985, Sandra Allen, Esquire, acting on behalf of Petitioner, requested an administrative hearing in order to contest the March 8, 1985, denial of the subject license. Joseph Forbes, Esquire, of Gainesville, Florida, was then retained by Petitioner to resolve the denial of the requested license, which was then pending before the Director of the Division of Alcoholic Beverages and Tobacco, as an informal administrative proceeding, pursuant to Section 120.57(2), Florida Statutes. In this capacity, Forbes, among other things filed a Motion for Continuance and Stipulation in this case attached to a June 6, 1985 cover letter. Forbes thereafter reached an agreement in the informal proceeding with Thomas Klein, Esquire, then counsel of record for Respondent, evidenced by letter dated October 1, 1985, which in its relevant portions indicated:
This is to continue our telephone conversation of October 1, 1985, in which the following was discussed and agreed upon:
Sarasota Liquors - your client will have
45 days from the date of this letter to cure the defects set forth in the March 8, 1985 letter of denial. Please direct your
client to respond to the Tallahassee office.
In order to rectify the original deficiencies causing the license denial, Petitioner re-filed an Application for Alcoholic Beverage License, Department of Business Regulation Form 700L, including exhibits, with Respondent, on or about November 13, 1985.
Petitioner's re-filed license application was denied by Respondent on February 19, 1986, for two reasons: (1) "Application incomplete as applicant does not have right of occupancy to the premises for which she is seeking to license," and (2) "Division is unable to fully investigate applicant's financial documentation."
On or about November 4, 1985, while searching for a location to submit as the licensed premises, in the re-filed application of November 13, 1985, Donna Sawyer and Ocie Allen met with Alton Allen at 258 S. Tamiami Trail, Sarasota, Florida, who was an agent for Walter Spector, owner of several retail store spaces at that address.
Ocie Allen, acting on behalf of his corporation, Ft. Myers A & T Corporation, entered into a lease for a store at 258 S. Tamiami Trail, Sarasota, Florida.
On or about November 4, 1985, Ocie Allen, acting on behalf of his corporation Ft. Myers A & T Corporation, purportedly subleased the premises at
258 S. Tamiami Trail, Sarasota, Florida to Petitioner.
That Petitioner had submitted a letter dated November 4, 1984, signed by Jim Irey, as President of Florida Home Equity of Lee County, Inc., which is attached to the November 13, 1985 application, which stated that certain financial support would be available to the subject alcoholic beverage sales contemplated by Petitioner. That as a result of the investigation following the November 13, 1985 application, Respondent was "unable to fully investigate applicant's financial documentation," since Respondent's agents were unable to locate Jim Irey or his company at the address indicated on the November 4, 1984 letter.
Based upon the evidence presented, the following additional findings of fact are made:
Donna Sawyer's preliminary application to participate in the state lottery for a quota liquor license included instructions to the applicant that it was the first part of a two part application and that the second part would require proof of occupancy for the premises to be licensed. The second part of the application was that license application filed with the Division of Alcoholic Beverages and Tobacco on November 2, 1984, and again on November 13, 1985.
As part of the notification that she was eligible to apply for a state quota liquor license, Donna Sawyer was advised that she had 45 days to file a full and complete application and that if she failed to do so, this failure would be deemed as a waiver of her right to file for a new quota liquor license. The letter also advised her that the Division had 180 days from the date of the drawing to act upon her application.
The Petitioner's first quota liquor license application was denied on March 8, 1985. March 8, 1985, was within 180 days of the applicable lottery drawing held on September 12, 1984.
The agreement of the parties to resolve the March 8, 1985, denial of the subject license evidences an tacit agreement by the parties to waive any applicable time limits existing at that time in order to allow the Petitioner to resubmit a corrected application within 45 days as allowed by the Thomas Klein letter of October 1, 1985.
The Division investigated the Petitioner's second application and determined that the applicant did not have a right of occupancy to the premises sought to be licensed, 258 Tamiami Trail, Sarasota, Florida, because Petitioner only had a purported sublease for the subject premises from Ft. Myers A & T Corporation. Ft. Myers A & T Corporation had obtained a lease for the property
on November 4, 1985, from Walter Spector, deceased at the time of the administrative hearing. Said lease between Walter Spector, lessor, and Ft. Myers A & T Corporation, lessee, provided that subleases must be approved by the lessor and be in writing. The Petitioner did not produce evidence of written authorization by Walter Spector to allow Ocie Allen or Ft. Myers A & T Corporation, Inc., to sublease the subject premises to the Petitioner or to any other person. The only evidence of such authorization was the hearsay statement by Ocie Allen that Walter Spector had orally given such authorization.
Furthermore, Mr. Alton Allen, then agent for Mr. Spector for leasing this property testified he had no knowledge that Mr. Spector was ever informed of a sublease. Therefore it is found that the sublease violated a material provision of the underlying lease from Walter Spector to Ft. Myers A & T Corporation.
Mr. Ocie Allen, agent for the Petitioner and Donna Sawyer, testified and it is found that there was no intention for the Petitioner to operate an alcoholic beverage license at the 258 Tamiami Trail location.
Petitioner's November 13, 1985, license application was also denied on February 19, 1986, for:
Application incomplete as . . . the Division is unable to fully investigate applicant's financial documentation.
This denial was due to the Division's agents being unable to verify the availability of financial funding from Florida Home Equity of Lee County, Inc. The Petitioner had submitted a November 9, 1984 letter from that corporation in its November 13, 1985 license application offering certain funding. Upon checking phone directories and making attempted telephone calls to the source named in that letter, the Division was not able to find the named business as source of funding.
The Division further investigated Florida Home Equity of Lee County, Inc. as an alleged source of funding by sending an agent, Robert B. Baggett, to the address supplied by the applicant in a November 9, 1984 letter from Florida Home Equity of Lee County, Inc., only to find that no such business was located there and no neighbors knew of a new location.
Sandra Allen, Esquire, testified that the source of the funding at the time of the second application was a new company run by the same person who was behind Florida Home Equity of Lee County, Inc., which was named as the source in the November 9, 1984 letter. However, this new company's name and address and verification of continued financial support to the Petitioner could not reasonably be determined by the Division and no evidence was presented that the Division had ever been provided with said new company's name or location prior to the denial of the second license application.
Contradictory testimony was presented by Lt. Ewing and Sgt. Mills as to the existence of a policy requiring a "14 day" deficiency notice letter to applicants. It is clear that that policy was not recognized in the office supervised by Sgt. Mills. It was also not established that Lt. Ewing had the authority to set or enunciate policy for the Division.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
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. 3 DCA 1983); Florida Department of Transportation vs. J.W.C. Company, 396 So.2d 778 (Fla. 1 DCA 1981).
Pursuant to Sections 561.19, 561.20, and 565.02, Florida Statutes, applications for certain types of Florida liquor licenses are selected by lottery. Rule 7A-2.17, Florida Administrative Code, sets certain procedures for such lotteries and processing of applicants for the subject licenses. These licenses are referred to in that rule as "quota" liquor licenses. Donna Sawyer applied to participate in Florida's lottery for said "quota" liquor licenses.
The issues in this case concern the denial of the Petitioner's application for said quota liquor license after the Petitioner's sole stockholder, Donna Sawyer, won the right to apply for such license in Florida's September 18, 1984, liquor license lottery.
After Donna Sawyer acting through Sarasota County Liquor, Inc., was selected in the September 12, 1985 lottery she filed an alcoholic beverage license application which was denied on March 8, 1986. This denial occurred within the 180 day time limit set out in Section 561.19(4), Florida Statutes, for granting of a beverage license issued by lottery. Even if the license had not been denied earlier, the license would have been automatically denied on the 180th day because it could only be "granted" within the 180 day period, Section 561.19(4), Florida Statutes. Furthermore the license could only be granted to a qualified person during the 180 day period and the Petitioner was notified during the 180 day period that it was not qualified.
However, in a settlement agreement relating to the March 8, 1985 license denial, evidenced by Thomas Klein's letter of October 8, 1985, the Petitioner was given 45 days to correct the deficiencies in the first application. This settlement agreement implicitly included waiver by the parties of any time limit that would be contrary to or directly defeat the purpose of the settlement agreement.
On November 13, 1985, the Petitioner resubmitted a new application for alcoholic beverage license, and the Sarasota district offices reviewed the new application in its entirety. Two deficiencies were found. No notice was given to the Petitioner to correct said deficiencies.
Although there was testimony that the Division did on occasion issue "14 day" deficiency correction notices to applicants, no evidence was presented in this case that such was required by statute or rule and controverted testimony was presented whether this was the policy of the Division. Where policy is relied upon, the policy must be clearly enunciated and supported at the formal hearing. That burden has not been met here and therefore it cannot be concluded that such a policy is employed by the Division.
Rule 7A-3.08, Florida Administrative Coda, 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 Statues (1983), provides:
After the application has been filed with the local district office supervisor, the dis- trict supervisor shall cause the application to be fully investigated, both as to qualifi- cations 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.
When Donna Sawyer filed a preliminary application to participate in the state lottery for a liquor license on January 20, 1984, she was given notice, by that form, that she would be required to prove her right of occupancy to the subject premises where the license would be operated.
Here the Petitioner submitted a premises in her second (November 13, 1985) application, but never obtained the right to occupy it as required by Rule 7A-3.08, Florida Administrative Code, because neither Donna Sawyer nor Sarasota County Liquors, Inc., ever obtained a valid sublease from Ft. Myers A & T Corporation, which held the lease on the property in question from Walter Spector.
Furthermore, here the evidence demonstrates clearly that the licensee had no intention of operating the subject alcoholic beverage license at the premises obtained by the purported sublease. This finding in itself demonstrates that pursuant to the above referenced Rule 7A-3.08(2), Florida Administrative Code, Petitioner could not qualify for a license because it did not submit as part of the application, a location at which the business would be operated. Since the Petitioner neither had the right to occupy the premises nor the intent to use it to sell alcoholic beverages, that location could not qualify as the licensed premises.
As to the verification of source of financial support of the Petitioner, this was properly investigated by the Division after the November 13, 1985, application was filed because Section 561.18, Florida Statutes, requires the Division to fully investigate all alcoholic beverages license applications. The Petitioner failed to inform the Division, as part of this application, that the required financial support would come from a different company at a different address from that provided to the Division although such new source may have been operated by the same individual who previously operated Florida Home Equity of Lee County, Inc.
The Division did not unreasonably delay processing of the subject application. In fact the evidence supports that the Division extended the process, with agreement of Petitioner, to assist the Petitioner in qualifying for the license. This was the obvious purpose of the second application which the Division accepted from the Petitioner.
There is no evidence that the Division denied the Petitioner the right to amend either of its two applications. Also, it was not established that the Division is required to give notice of license application deficiencies to the applicant prior to denial. However, in this case, notice was given by the first March 8, 1985, license denial and a second chance was given to the Petitioner to correct its deficiencies. The Petitioner failed to do this.
It is concluded that the Petitioner failed to meet its burden of proving entitlement to the subject license. It is further concluded that the Division has acted according to law in investigating and denying the license for the deficiencies alleged.
