STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RIALTO FOOD SERVICE, INC., d/b/a ) HOY'S RIALTO RESTAURANT, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1677

)

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for final formal hearing in Fort Pierce, Florida, on September 22, 1987, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph J. DeRoss, Jr., Esquire

133 South Second Street Fort Pierce, Florida 34950

For Respondent: Thomas A. Klein, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

ISSUE

Whether or not Petitioner may be granted an alcoholic beverage license.

BACKGROUND AND PROCEDURE

Petitioner and Respondent agreed to the admission of their Prehearing Stipulation as Hearing Officer Exhibit A. Petitioner presented the oral testimony of Bob Young, James E. Willis, Mark Orr, Gary Ellwood, Bruce Hunter, and Andy Hoy and had admitted three exhibits. Petitioner also made an oral proffer that six additional witnesses would, if called, testify to the good moral character of James E. Willis. Respondent presented only the oral testimony of Barry Schoenfe1d. No transcript was provided, but the parties timely submitted their respective proposed findings of fact and conclusions of law. All proposed findings of fact have been ruled upon in the appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.

FINDINGS OF FACT

1. Petitioner is Rialto Food Service, Inc. d/b/a Hoy's Rialto Restaurant, whose president is James E. Willis.

   
   

2. Respondent is the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco.

   
   

3. On August 14, 1986, Petitioner filed an application for an alcoholic beverages license in connection with the purchase of Hoy's Rialto Restaurant.

   
   

4. On September 29, 1980, James E. Willis was convicted of two counts of delivery of a controlled substance (methaqualone).

   
   

5. On January 10, 1986, James E. Willis received a certificate of restoration of civil rights.

   
   

6. James E. Willis currently enjoys a good reputation within the Ft. Pierce, Florida business community. Particularly persuasive of Willis' present good moral character is the entirely favorable factual and opinion evidence offered on his behalf by the prosecutor who presented the original case resulting in Willis' 1980 conviction. Several witnesses with opportunity to observe and good reason to know, also testified that Willis has taken an active and apparently effective stand against drug possession and/or drug use in Hoy's Rialto Restaurant.

   
   

7. Subsequent to Petitioner's application for licensure, Sgt. Bob Young of the Division of Alcoholic Beverages and Tobacco investigated James E. Willis. Willis had made full disclosure on his application and thereafter concealed none of the facts found in findings of fact paragraphs 4-6, supra. After completing his investigation and despite Mr. Willis' conviction, Sgt. Young recommended approval of the Petitioner's application for licensure.

   
   

8. Nonetheless, on February 6, 1987, Respondent denied Petitioner's license application on the grounds that Petitioner's corporate officer, James E. Willis, had been convicted of a felony within the past 15 years for a crime which directly related to the Alcoholic Beverages Law.

   
   

9. Barry Schoenfeld, Chief of Licensing for the Division of Alcoholic Beverages and Tobacco, testified that it is Respondent's unwritten, uncodified "policy" to deny licensure when an applicant has a corporate officer with a felony conviction within 15 years from the date of application, which conviction involves one of the five crimes enumerated in Section 561.15, Florida Statutes. This agency "policy" has been in effect at least 5 years immediately prior to the formal hearing. Likewise, it is Respondent's position that a narcotics conviction, as in the instant case, is "directly related" to the license sought by Petitioner.

   
   

10. Sgt. Young did not advise Mr. Willis of said policy, nor did he indicate that Petitioner's application would not be approved. Had this policy been in writing or otherwise available or made known to Petitioner prior to submitting its application, Petitioner would not have purchased Hoy's Rialto Restaurant.

11. There are no other unwritten policies concerning automatic rejections for applications by persons convicted of any crime other than drug related crimes. There is no written agency policy or unwritten agency policy as to what crimes directly relate to Chapter 561, Florida Statutes, the Alcoholic Beverages Law.

    
    

12. No other facts exist that would disqualify Petitioner's application for licensure.

    
    

    CONCLUSIONS OF LAW

    
    

13. Pursuant to Section 120.57(1), Florida Statutes, the Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause.

    
    

14. The burden of demonstrating entitlement to the license applied for rests with the applicant. J.W.C. Company, Inc. v. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

15. Pursuant to Section 561.15(1), Florida Statutes, alcoholic beverages licenses to corporations shall be issued only to corporations whose officers are of good moral character and not less than twenty-one years of age. No testimony reflects that Petitioner's corporate officer, Willis, has bad moral character. In fact, the overwhelming evidence is to the contrary.

    
    

16. Pursuant to Section 112.011(1)(b), Florida Statutes, one who has had his civil rights restored may be denied a license by reason of his prior conviction of a crime if the crime was a felony and directly related to the specific business for which the license is sought and pursuant to Section 561.15(2), Florida Statutes, no license under the Alcoholic Beverages Law shall be issued to a corporation, any of the officers of which shall have been convicted of a felony in this state in the last 15 years prior to the application. For these reasons, it is not necessary to address whether the agency procedures, as enunciated by Mr. Schoenfield, ascend to the level of "policy," and if so, whether or not such a "policy" is rational or whether or not such a "policy" should have been duly promulgated as a formal rule because it has been in effect so long. It is not necessary to make such determinations because the same result as applied by the agency's so-called "policy" can be reached purely by reading the applicable statutes in para materia. See Big John's Amoco v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, DOAH Case No. 84-3155 (February 28, 1985).

    
    

17. Petitioner's suggestion that the agency is somehow collaterally estopped from asserting its "policy" due to its failure to disclose that policy to Mr. Willis prior to his purchase of Hoy's Rialto Restaurant is rejected upon the same grounds.

    
    

18. It is uncontroverted that Mr. Willis, Petitioner's corporate officer, was convicted of a felony less than 15 years before the date of Petitioner's application for licensure, but he also has had his civil rights restored. Although Petitioner argues that Willis' conviction is not "directly related" to the business of selling alcoholic beverages, [a situation which would bar licensure of a person under Section 112.011(1)(b)] the Legislature appears to have resolved the matter otherwise. At Section 561.15, Florida Statutes, five specific crimes are listed. Conviction of any person of these crimes within 5 years constitutes a bar to the issuance of an alcoholic beverages license to that person. One of those enumerated crimes is described as "illegally dealing

    in narcotics." The legislative identification of those five specific crimes as complete bars to licensure of a person and the specific crime quoted above which so neatly dovetails with Willis' two count 1980 felony conviction is strong evidence of a legislative presumption that his crime/conviction is "directly related" to the business of selling alcoholic beverages. See DWL Enterprises, d/b/a Hideaway Raw Bar and Restaurant v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, DOAH Case No. 84-3063 (December 5, 1984). Moreover, common sense and normal human experience, not to mention repeated similar fact situations in reported case law, remind us that the use and dealing of drugs often occurs on premises featuring food, and/or alcohol/and/or entertainment.

    
    

19. If conviction of such a crime will completely bar licensure to an individual because it is "directly related," then it must likewise be such a crime, the conviction of which by its corporate officer, as will bar licensure of a corporation, provided the conviction was within 15 years.

    
    

20. In the instant case, Mr. Willis has not been pardoned for his past crime nor has he qualified for the sealing of his criminal history record pursuant to Section 943.058, Florida Statutes. By contrast, the restoration of Mr. Willis' civil rights, pursuant to Section 112.011, Florida Statutes, merely removed certain employment disqualifications.

    
    

21. As in DWL Enterprises, Inc., supra, this applicant had a felony narcotics conviction within 15 years from the date of license application. In accordance with Section 561.15(2), Florida Statutes, Respondent's license denial was justified and should be upheld.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law it is, RECOMMENDED that the Department of Business Regulation, Division of

Alcoholic Beverages, enter a Final Order denying Petitioner's application for an

alcoholic beverages license.

DONE and RECOMMENDED this 17th day of December, 1987, at Tallahassee, Florida.

ELLA JANE P. DAVIS

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 17th day of December, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1677

The following constitute specific rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (FOF):

Petitioner's PFOF:

1. Covered in FOF 1 and 3.

2. Covered in FOF 2.

3, 4, 5. Covered in FOF 7.

1. Covered in FOF 8.

2. Rejected as subordinate and unnecessary.

3. Covered in FOF 10.

4. Covered in FOF 9. To the extent it is not accepted, it is rejected as not supported by the evidence as a whole.

5. Accepted but subordinate and unnecessary. See FOF 9-11.

6. Covered in FOF 10.

7. Covered in FOF 12.

13-14. Covered in FOF 6 except for those matters which are subordinate and unnecessary to a disposition of the issues in this cause.

COPIES FURNISHED:

Daniel Bosanko, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32399-1000

Joseph J. DeRoss, Jr., Esquire

133 South Second Street Fort Pierce, Florida 34950

Thomas A. Klein, Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1000

Van B. Poole, Secretary Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1000

Docket for Case No: 87-001677

Orders for Case No: 87-001677