vs. ) CASE NO. 87-5566
) DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
Respondent. )
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on April 19, 1988, in Miami, Florida.
Petitioners G.W. Liquors of Broward, Inc., d/b/a Case Deliveries and G.W. Liquors of Collier, Inc., d/b/a Discounted by the Case were represented by Sy Chadroff, Esquire, Miami, Florida, and Bruce Rogow, Esquire, Fort Lauderdale, Florida; and Respondent Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, was represented by W. Douglas Moody, Jr., Esquire, Tallahassee, Florida.
Petitioners filed applications for alcoholic beverages licenses and Respondent denied each of the applications stating:
Applicant corporate officer, Eugene Willner, has been convicted of a felony within the last past fifteen years and is not believed to be of good moral character. Although said officer has a Restoration of Civil Rights, the crime for which he was
convicted directly relates to the alcoholic beverage laws and, for this reason, the application is being denied.
Petitioners timely requested a formal hearing on that denial. Accordingly, the issue for determination herein is whether Petitioners' applications should be approved.
Petitioners presented the testimony of Eugene Burton Villner and James B. Burgin, and Respondent presented the testimony of Thomas Patrick Wheeler and John Chase. Additionally, Petitioners' Exhibits numbered 1-4 were admitted in evidence.
At the commencement of the final hearing, by stipulation of the parties, these cases were consolidated, and the style of this cause was amended as is reflected hereinabove.
Petitioners and Respondent submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.
Eugene Willner is the corporate officer and sole stockholder of G.W. Liquors of Broward, Inc., d/b/a Case Deliveries, and G.W. Liquors of Collier, Inc., d/b/a Discounted by the Case.
On August 27, 1980, Eugene Willner entered a plea of guilty in the United States District Court for the Eastern District of Louisiana to a violation of Title 21, United States Code s. 963, Conspiracy to Import Marijuana. Based upon his plea he was convicted and sentenced to two years of imprisonment, and a fine of $5000 was imposed.
Willner had never before been convicted of any offense, nor has he been convicted of any offense subsequent to the 1980 conviction. Other than the 1980 conviction, Willner has a reputation of good moral character in his community.
On July 8, 1983 Willner received a Certificate of Restoration of Civil Rights which provided, in relevant part, that he
... is restored to all civil rights in this State, except the specific authority to possess or own a firearm, lost by reason of any and all felonies this person may have been convicted of in another state, federal, or military court .
In early 1987, the Petitioner corporate entities controlled by Willner applied for new quota alcoholic beverage licenses. Those applications disclosed Willner's 1980 conviction and his 1983 restoration of civil rights. On October 28, 1987, Respondent denied the applications.
Of the 8500 licensed alcoholic beverage premises in Dade and Monroe Counties, only approximately 20 to 25 (or approximately one-quarter of one percent) are experiencing a problem with narcotics.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.
This case focuses upon Willner's 1980 federal conviction for conspiracy to import marijuana. Respondent has stipulated that "subsequent to the conviction [there is] no evidence indicating that Mr. Willner, apart from the facts and circumstances of the conviction, is of bad moral character..." The facts and circumstances of the conviction demonstrate Willner's participation in a marijuana conspiracy, his 1980 personal use of cocaine, and that the investigating agent called Willner "a couple of times" at the bar Willner then owned. However, the subsequent restoration of civil rights, the favorable character testimony, and the lack of any pre- or post-1980 evidence impugning Willner's character compel the conclusion that the facts and circumstances of the 1980 conviction do not constitute character flaws which justify a license denial under section 561.15(1), Florida Statutes. Compare, DWL Enterprises, Inc. , d/b/a Hideaway Raw Bar & Restaurant v. Department of Business Regulation. Division of Alcoholic Beverages and Tobacco, DOAH Case No. 84-3063 (December 5, 1984), where the Recommended Order detailed numerous criminal episodes over an eleven-year period and the filing of a false application for an alcoholic beverage license as evidence of the applicant's poor moral character. Nor do the telephone calls evidence a direct relation between an alcoholic beverage establishment and the offense, pursuant to section 112.011(1)(b) , Florida statutes. Respondent's main position, and the real issue in this case, is whether section 112.011(1)(b) and section 561.15(2) permit denial of the license because Willner was convicted within the last 15 years of a felony which, on its face, is "directly related" to the license sought. The two pertinent statutes provide:
112.011 Felons; removal of dis- qualifications for employment, exceptions.
(b) A person whose civil rights have been restored shall not be disqualified to practice, pursue, or engage in any occupation, trade, vocation, profession, or business for which a license, permit, or certificate is required to be issued by the state, any of its agencies or political subdivisions, or any municipality solely because of a prior conviction for a crime. However, a person who has had his civil rights restored may be denied a license, permit, or certification to pursue, practice, or engage in an occupation, trade, vocation, profession, or business by reason of the prior conviction for a crime if the crime was a felony or first degree misdemeanor and directly related to the specific occupation, trade, vocation, profession, or business for which the license, permit, or certificate is sought. [Emphasis added.]
561.15 Licenses; qualifications required.--
(2) No license under the Beverage Law shall be issued to any person who has been convicted within the last past 5 years of any offense against the beverage laws of
this state, the United States, or any other state; who has been convicted within the last past 5 years in this state or any other state or the United States of soliciting for prostitution, pandering, letting premises for prostitution, keeping a disorderly place, or illegally dealing in narcotics; or who has been convicted in the last past 15 years of any felony in this state or any other state or the United States; or to a corporation, any of the officers of which shall have been so convicted. The term conviction shall include an adjudication of guilt on a plea of guilty or nolo contendere or the forfeiture of a bond when charged with a crime.
Respondent contends that because section 561.15(2) lists a conviction for "illegally dealing in narcotics" as an offense mandating denial if it occurred within 5 years of the license application, then a conviction for "illegally dealing in narcotics" is per se "directly related" to a beverage license. Therefore, reasons Respondent, it may deny the Petitioners' license applications based upon Willner's 1980 conviction for conspiracy to import marijuana because, despite his restoration of civil rights, his conviction was directly related to the license sought. Neither the facts nor the law support Respondent's position in this case.
An Attorney General's Opinion emphasizes the burden which must be met to deny a license under the section 112.011(1)(b) proviso:
A prior conviction is no longer a fatal disqualification, and a 'clean record' of criminal convictions is not a condition precedent to eligibility for ... licensing unless such prior conviction directly relates to a particular ... license sought ... [Emphasis in original].
1973 Opinions of the Attorney General of Florida, 073-355 (September 20, 1973), p. 600. The word "directly" is not defined in the statute, and it must, therefore, be accorded its plain and commonly understood meaning.
Thomas Wheeler, Respondent's Dade and Monroe Captain and former administrative assistant to the Director of the Division of Alcoholic Beverages and Tobacco testified that there are 8500 licensed alcoholic beverage premises in Dade and Monroe Counties and Respondent is having a problem with narcotics in approximately 20 to 25 places. Therefore, the evidence reflects that narcotics are a problem in a very small number of the licensed alcoholic beverage premises
in Dade and Monroe Counties (approximately one- quarter of one percent) . Based upon that evidence, illegally dealing in narcotics is not per se, on the record established here, an offense which is sufficiently directly related to an alcoholic beverage license so as to permit denial of a license to a person who has had his civil rights restored.
Further, Willner was not convicted of illegally dealing in "narcotics." His conviction in federal court was for conspiracy to import marijuana, and, under federal law, marijuana is not a "narcotic." See, Title 21
U.S.C. s. 802(17) A-E, defining narcotic drugs to be opium, poppy straw, coca leaves, cocaine ecgonine and mixtures of these substances. Marijuana is not defined as a "narcotic" drug under federal law. See, Title 21 U.S.C. s. 802(16). Therefore, even if illegally dealing in narcotics constitutes a directly related offense pursuant to a combined reading of sections 112.011(1)(b) and 561.15(2), that interpretation would not apply to the facts of this case.
None of Respondent's Final Orders relied on by Respondent is dispositive. In Rialto Food Service, Inc., d/b/a/ Hoy's Rialto Restaurant v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, DOAH Case No. 87-1677 (December 17, 1987), the applicant had been convicted (apparently in state court) of a methaqualone violation. There was no evidence introduced regarding the relationship between illegally dealing in narcotics and alcoholic beverage establishments. The constitutional issues present here were not raised. Therefore, the Rialto Food Order is not persuasive authority for this case where different facts and legal issues are present.
Big John's Amoco v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, DOAH Case No. 84-3155 (February 25, 1985) involved a Florida, not a federal, marijuana conviction. The Order does not reflect the presence of any of the factual or constitutional issues present in this case and the Order's conclusion that s. 561.15(2) operates independently of
s. 112.011(1)(b) goes beyond that which the Division has contended in this case.
DWL Enterprises, Inc., 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) presents a long record of theft, marijuana, cocaine, qualude, and DWI offenses which supported a poor moral character finding. The Order also found there to be a false swearing on the license application. The Order's reference to the section 561.15(2) "illegally dealing in narcotics" language as "strong evidence" of a legislative conclusion that such offenses are directly related to selling alcoholic beverages was made on a factual record far different from that established in this case. In addition, the legal arguments presented here were not made in DWL. Therefore, because poor moral character reasons justified denial in DWL, and because the record in that case was far different from that presented here, DWL does not support a conclusion different from that rendered in this Recommended Order.
A reading of section 112.011(b), Florida Statutes, reveals that statute creates a presumption in favor of non- disqualification. Even the exception within that statute, i.e., disqualification if the conviction relates to the license being sought, is discretionary and not mandatory. Accordingly, approval or denial of a license application where the applicant has had his civil rights restored must be determined on a case by case basis and cannot follow a rigid interpretation. The strict interpretation urged by Respondent would mean that even though the Governor as Chief Executive of state government restores a person's civil rights with no limitation save for owning and
possessing a firearm, the Chief Executive's subordinates in the executive branch can add an additional condition to that restoration of civil rights by prohibiting the holding of an alcoholic beverages license by anyone who has previously been convicted within the last 15 years of a crime involving drugs, both narcotic and non-narcotic. Although Respondent is entitled to a strict interpretation of the statute prohibiting an applicant from having been convicted of any felony within the last 15 years, that strict statutory interpretation fails where the applicant has had a restoration of his civil rights.
Respondent argues that Willner lacks good moral character, which is a separate basis for denial of the license applications at issue in this cause. Yet, Respondent admits that it has no evidence of any lack of good moral character except for the conviction and the circumstances involved in the conviction. Since Respondent cannot rely solely on Willner's conviction because of the restoration of Willner's civil rights, then the Respondent cannot rely solely on the facts and circumstance subsumed in that conviction. Respondent cannot do indirectly that which it is prohibited from doing directly. See, AGO 073-355 at p. 599.
Petitioners raise some provocative constitutional arguments regarding the interplay among section 112.011(1)(b), Florida Statutes, and section 561.15(2), Florida Statutes, and Article IV, Section 8 (a) , Florida Constitution, which cannot be resolved in this forum. Those arguments involve both the facial constitutionality of those statutes and the constitutionality of those statutes as Respondent proposes to interpret them.
