STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAL & FAMILY, INC., )

d/b/a SAL'S PIZZERIA, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2240

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on May 17, 1989, in Rockledge, Florida.

APPEARANCES

For Petitioner: Steven J. Jacovitz, Esquire

43 South Atlantic Avenue Cocoa Beach, Florida 32931

Baya Harrison, III, Esquire The Murphy House

317 East Park Avenue Tallahassee, Florida 32301

For Respondent: Elizabeth C. Masters, Esquire

Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

STATEMENT OF THE ISSUES

The issue for determination in this proceeding is whether the Division of Alcoholic Beverages and Tobacco should grant Petitioner's application for an alcoholic beverage license change of corporate officers. This requires a determination of whether Guiseppe Camarda has an interest in the corporation and whether that interest bars approval of the application.

PRELIMINARY STATEMENT

This proceeding arises from a notice of disapproval, dated April 4, 1988, from L. B. Schoenfeld, Chief of the Bureau of Licensing and Records, Division of Alcoholic Beverages and Tobacco, Department of Business Regulation, informing

Petitioner of its intent to deny a license application. A timely request for formal hearing was filed by Petitioner's counsel.

The hearing was scheduled, but was continued, to allow the parties, at their request, to pursue settlement. When discussions failed to produce an agreement the hearing was rescheduled.

On May 16, 1989, a telephone hearing was conducted on the Respondent agency's request for leave to amend its notice of disapproval. The two statutory provisions sought to be added did not materially change the basis for disapproval and the motion was granted.

At the formal evidentiary hearing Petitioner presented the testimony of Rosa and Guiseppe Camarda, husband and wife. Petitioner's two exhibits, a stock certificate and an application form, were received into evidence.

Respondent presented the testimony of its employees, Michael Fath and Barry Schoenfeld. Its three exhibits, a certified copy of conviction, a license file and the notice and amended notice of disapproval were received into evidence.

In addition, a joint composite exhibit, the application packet at issue, was received.

After the hearing, a transcript was prepared. Petitioner's request for extension of time to file proposed recommended orders was granted, without objection, and the deadline of June 29, 1989, was established. The proposed findings of fact submitted by each party are addressed in the appendix attached.

FINDINGS OF FACT

1. On February 16, 1988, Rosa Camarda submitted an application for change of corporate officers for alcoholic beverage license number 15-00776, 2-COP, on behalf of Sal and Family, Inc., doing business as Sal's Pizzeria, located at 925 Barton Boulevard, Rockledge, Brevard County, Florida.

   
   

2. Although at the time that the application was filed, Mrs. Camarda said she was a sole stockholder, she indicated on the application that she owned 95% of the stock, and that her husband owned 5%.

   
   

   She did this at the insistence of a clerk working at the local office of the Division of Alcoholic Beverages and Tobacco (DABT), who told her that some interest by her husband had to be listed because he contributed money for the purchase.

   
   

3. The personal questionnaire for Guiseppe Camarda, attached to the application, candidly reveals his conviction in New York for grand larceny on December 15, 1987.

   
   

   For that conviction he was sentenced to five years' probation and restitution in the amount of $45,918.00, upon completion of the sale of his Farmingville, New York, home. Mr. Camarda is still on probation and has not been granted restoration of civil rights in Florida or New York.

   
   

4. Sgt. Michael Fath, law enforcement officer with DABT and manager of the Rockledge sub-office of the division, processed the application at issue. He obtained verification from the state of New York regarding the Guiseppe Camarda conviction.

   He also noted in attachments to the application that Mr. Camarda was jointly liable on a promissory note to the prior owner of Sal's Pizzeria, and that other funds for purchase of the business had come from the sale of the Camardas' home in Farmingville, New York.

   
   

5. Michael Fath recommended disapproval of the application based on the showing of Mr. Camarda's direct interest in the corporation and his disability due to the felony conviction. At no time was Sgt. Fath informed that the information on the application was not correct. The division, through Barry Schoenfeld, accepted the recommendation, and informed the Camardas of the disapproval.

   
   

6. The Camardas have been married for twenty-two years and both have worked and contributed financially throughout the marriage. When they sold their home in New York, jointly owned, a part of the proceeds went for Mr. Camarda's restitution; and what Mrs. Camarda claims is her portion of the proceeds went toward partial payment for purchase of Sal's Pizzeria in Rockledge.

   
   

   The remainder of the investment in the corporation is in the form of a note co-signed by the Camardas to the prior owners, Salvatore and Antonina Marchica, in the amount of $30,000, dated December 21, 1987, and payable in 60 monthly payments of $637.42.

   
   

7. When the business was purchased in December 1987, Guiseppe was listed as corporate vice-president. Approximately a month later, in January 1988, Mrs. Camarda had second thoughts about allowing her husband to share in the business and she said she had the documents changed to reflect her sole ownership. She did not produce those documents. As evidence of that sole ownership, Mrs. Camarda presented her exhibit #1, a stock certificate, reflecting that she owns

   50 shares of capital stock of Sal and Family, Inc. The certificate also reflects on its face that 100 shares of stock are authorized. Other shares may be outstanding and Exhibit #1 does not, on its face, establish Mr. Camarda's non-interest.

   
   

   Rosa Camarda runs the business, handles the funds, pays the bills and employs Guiseppe to cook, sweep and wash dishes. This is his only employment, and he is paid $172.00 per week, in cash, by his wife.

   
   

8. Funds for payment on the note to the Marchicas come from the proceeds of the pizzeria business. Mr. Camarda has an interest in that business through his liability on the note.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), Florida Statutes.

   
   

10. As applicant, Petitioner has the burden of proving its entitlement to an alcoholic beverage license. Astral Liguors v. Department of Business Regulation, 432 So.2d 93 (Fla. 3rd DCA 1983). Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

11. The amended notice of disapproval cites Sections 561.15(1) and (2) and Section 561.17, Florida Statutes, as authority. Those provide, in pertinent part:

    561.15 Licenses; qualifications required.-

    1. Licenses shall be issued only to persons of good moral character who are not less than 21 years of age. Licenses to corporations shall be issued only to

       corporations whose officers are of good moral character and not less than 21 years of age. There shall be no exemptions from the license taxes herein provided to any person, association of persons, or corporation, any law to the contrary notwithstanding.

    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 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 IS 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 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. (Emphasis added)

    516.17 License applications; approved person.-

    (1) Any person, before engaging in the business of manufacturing, bottling, distributing, selling, or in any way dealing in alcoholic beverages, shall file, with the district supervisor of the district of the division in which the place of business for which a license is sought is located, a sworn application in duplicate on forms provided 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 on regular United States Department of Justice forms 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 applicant either 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.

    However, any company regularly traded on a national securities exchange and not over the counter; any insurer, as defined in the Florida Insurance Code; or any bank or savings and loan association chartered by this state, another state, or the United States which has an interest, directly or indirectly, in an alcoholic beverage license shall not be required to obtain division approval of its officers, directors, or stockholders or any change of such positions or interests. A shopping center with five or more stores, one or more of which has an alcoholic beverage license and is required under a lease common to all shopping center tenants to pay no more than 10 percent of the gross proceeds of the business holding the license to the shopping center, shall not be considered as having an interest, directly or indirectly, in the license.

    * * *

    (3) A transfer of 10 percent of any financial interest, a change of executive officers or directors, or a divestiture or resignation of such interest or position, in a business holding a vendor's license permitting the sale of any alcoholic beverages regardless of alcoholic content shall be contingent upon the express approval by the division of the persons holding or acquiring such interest or position except for persons exempted in subsection (1). (Emphasis added)

    
    

    In addition, section 561.15(4), Florida Statutes, provides in pertinent part:

    
    

    * * *

    If a corporation is unable to qualify for or continue to hold an alcoholic beverage license because an officer of the corporation has been convicted of an offense enumerated in subsection(2), such conviction will not constitute an absolute bar to the issuance, renewal, or transfer of a license to the corporation, or to the continued holding of an alcoholic beverage license by the corporation, if the corporation can demonstrate to the satisfaction of the division that the corporation has terminated its relationship with the officer so convicted.

    
    

12. Mr. Camarda's felony conviction is undisputed. His interest in the corporation is, however, in dispute.

The stock certificate submitted by Mrs. Camarda fails to support her claim that she is the sole stockholder.

Whether the DABT clerk properly required that the application reflected some percentage of stock ownership, Guiseppe Camarda's interest in the business is apparent in the application packet. The division correctly relied on information provided in that application. Peterson v. Department of Business Regulation, 451 So.2d 983 (Fla. 1st DCA 1983).

The Camardas failed to prove that Mr. Camarda's interest in the corporation has been terminated, through surrender of stock and otherwise. The business is his employment; he is jointly liable on the note for purchase of the business; proceeds to pay that note come from the business.

Denial by the DABT of Petitioner's application is compelled by Section 561.15(2), Florida Statutes and 561.17(1), Florida Statutes. Guiseppe Pizzeria

v. Department of Business Regulation Division of Alcoholic Beverages and Tobacco, 472 So.2d 1331 (Fla. 3rd DCA 1985).

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED:

That a Final Order be entered denying Petitioner's application.

DONE and ENTERED this 23rd day of August, 1989, at Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1989.

APPENDIX

The following constitute my specific rulings on the findings of fact proposed by the parties:

Petitioner's Proposed Findings

1. Adopted in paragraph Nos. 1 and 2.

2. Adopted in substance in paragraph No. 5.

3. Adopted in substance in paragraph No. 5.

4. Adopted in part in paragraph No. 3. The finding that his civil rights have been restored in New York is not supported by the evidence.

5. Rejected as inconsistent with the evidence.

6. Adopted in substance in paragraph No. 2.

7. Adopted in paragraph Nos. 6 and 7.

8. Adopted in substance in paragraph No. 6.

9. Adopted in paragraph No. 4.

10. Included in Preliminary Statement.

11. Rejected as cumulative and unnecessary.

12. Adopted in part in paragraph No. 7.

13. Rejected as cumulative and unnecessary.

Respondent's Proposed Findings

1. Adopted in paragraph No. 1.

2. Adopted in paragraph No. 5.

3. Adopted in paragraph No. 5.

4. Adopted in paragraph No. 3.

5. Adopted in paragraph No. 4.

6. Rejected as unnecessary.

7. Adopted in paragraph Nos. 6. and 7.

8. Adopted in paragraph No. 6.

9. Adopted in paragraph No. 6.

10. Adopted in substance in paragraph No. 5.

11. Reflected in the Preliminary Statement.

12. Rejected as unnecessary.

13. Adopted in paragraph No. 7.

14. Rejected as unnecessary.

COPIES FURNISHED:

Steven J. Jacovitz, P.A.

43 South Atlantic Avenue Cocoa Beach, Florida 32931

Elizabeth C. Masters Assistant General Counsel

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Baya Harrison, III, Esquire The Murphy House

317 East Park Avenue Tallahassee, Florida 32301

Leonard Ivey, Director

Division of Alcoholic Beverages and Tobacco Department of Business Regulation

The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

Joseph A. Sole General Counsel

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

Stephen R. MacNamara Secretary

The Johns Bldg.

725 S. Bronough St. Tallahassee, Florida 32399-1000

Docket for Case No: 88-002240

Orders for Case No: 88-002240