STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONMARK ENTERPRISES, INC., )

d/b/a GABY'S LIQUORS, )

)

Petitioner, )

)

vs. ) Case No. 88-2924

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on August 25, 1988, in Fort Lauderdale, Florida, before Joyous D. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Raymond A. Doumar

ALLSWORTH DOUMAR CAZEL CURTIS & CROSS

1177 Southeast 3rd Avenue

Fort Lauderdale, Florida 33316-1197

For Respondent: Harry Hooper

Deputy General Counsel

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

BACKGROUND AND PROCEDURAL MATTERS

This case began on April 25, 1988, when the Department of Business Regulation, Division of Alcoholic Beverages, Bureau of Licensing and Records (Department) issued a Notice of Disapproval regarding a new quota application filed by Donmark Enterprises, Inc., d/b/a Gaby's Liquors. The reason for the disapproval was that the applicant, Donald C. Morton, had been ruled ineligible to receive a new quota license since the preliminary application had been allegedly signed by William Morton, father of the applicant. The authority for the disapproval was cited as Sections 561.18 and 561.19, Florida Statutes, together with Rule 7A-2.017, Florida Administrative Code. Thereafter, Petitioner filed a request for an administrative review of the disapproval, and the case was forwarded to the Division of Administrative Hearings for formal proceedings on June 14, 1988.

At the outset of the hearing, Respondent made an ore tenus Motion to Dismiss and claimed that, under the facts of this case, the Division of

Administrative Hearings does not have jurisdiction to review the matter. Ruling on that motion was reserved at that time but is addressed in the conclusions of law that follow.

Petitioner offered the testimony of the following witnesses in support of its case: Donald Chester Morton, the applicant in this cause; William Chester Morton, the applicant's father; and Barry Shoenfeld, the Bureau Chief for the Division. Petitioner's exhibits numbered 1 through 6 were admitted into evidence. Respondent offered no evidence.

After the hearing, the parties submitted proposed recommended orders which have been considered in the preparation of this recommended order. Specific rulings on the proposed findings of fact are included in the attached appendix.

ISSUE

The central issue in this case is whether the Petitioner's application for a new quota license should be approved or disapproved.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. On December 17, 1986, the Department processed a preliminary application for a new quota alcoholic beverage license for Broward County which was submitted in the name of Donald Chester Morton.

   
   

2. The preliminary application provided, in pertinent part, an affirmation for the applicant and all persons listed which stated:

   
   

   I hereby certify and affirm under penalty of perjury as provided for in 837.06 and 559.791, Florida Statutes, that the foregoing information is true and correct to the best of my knowledge.

   
   

3. The preliminary application instructions further stated:

   
   

   Each person listed anywhere on the application must sign affirming that the answers are true and correct to the best of their knowledge.

   
   

4. Following notification of being selected, Petitioner filed an application for a new-temporary 3 PS license on August 21, 1987. This temporary license was issued by the Department and was to expire on November 18, 1987.

   
   

5. During the period the temporary license was in effect, the Department conducted an investigation which revealed that the original preliminary application had not been signed by the applicant, Donald Chester Morton. Instead, the applicant's father, William Chester Morton, had signed his son's name on that portion of the preliminary application which required an affirmation.

   
   

6. Based upon this discovery, the Department issued a Notice of Disapproval on April 25, 1988 The notice provided as follows:

   As a disapproved applicant you are entitled to a hearing pursuant to 120.57, Florida Statutes, Florida Administrative Procedure Act, provided you file a written request for an administrative review of this decision within twenty-one (21) days of the date of this letter.

   
   

7. Thereafter, on May 16, 1988, Petitioner filed a request for an administrative review of the decision and alleged the basis to be "Chapter

   120.57 of the Florida Statutes."

   
   

8. Prior to the submission of the preliminary application Donald Chester Morton had authorized his father to sign the form on his behalf. This authorization was given in a telephone conversation when the younger Morton determined he could not, due to work scheduling, file the preliminary application for himself. The senior Morton also filed a preliminary application in his own behalf. Coincidentally, both Mortons were chosen for quota licenses.

   
   

9. Prior to the submission of the preliminary application in the name of Donald Morton, no written power of attorney was executed. William Chester Morton, acting on the verbal instructions from his son, signed the preliminary application. All information on the preliminary application, other than the affirmation, was true and correct.

   
   

10. Neither Morton notified the Department of the manner in which the preliminary application had been executed. The facts regarding the father signing for his son came out during the background investigation of the license.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

12. Section 561.19(4), Florida Statutes, provides, in pertinent part:

    
    

    The granting of licenses pursuant to subsection (2) or subsection (3) shall not be governed by the provisions of

    120.60... Any applicant whose name is included in the pool for drawing to determine priority but who is not granted a license shall be entitled to request a hearing on the denial pursuant to s. 120.57 only on the grounds that the selection process was not conducted in accordance with law or that the licensee selected does not possess the qualifications required by law.

    
    

13. In the case at issue, the Petitioner has attempted to claim that the selection process was not conducted in accordance with law. While this argument lacks merit for the reasons expressed herein, it nonetheless is sufficient to vest jurisdiction with the Division of Administrative Hearings. Accordingly, Respondent's Motion to Dismiss is denied.

14. The true thrust of Petitioner's claim is that the rule, as applied in this case, improperly exceeds the scope of the statute (Section 561.19, Florida Statutes). However, Petitioner did not challenge the rule pursuant to Section 120.56, Florida Statutes. Petitioner may not challenge the rule except as provided by law. For purposes of this case, the statute and the rules promulgated under it stand as the measuring factor to determine whether or not the Department complied with the law.

    
    

15. Section 561.19(2), Florida Statutes, provides, in part:

    
    

    The director shall not include more than one application from any one person, firm, or corporation in the random selection

    process, nor may he consider more than one application for any one person, firm, or corporation when there are fewer applications than available licenses.

    
    

16. Rule 7A-2.017(3), Florida Administrative Code, provides:

    
    

    The Division shall not include more than one application from any one person, firm or corporation in the drawing. The Division shall require each applicant for inclusion in the drawing to attest under oath that such applicant has submitted either directly or indirectly no more than one application for inclusion in such drawing. The Division shall not accept for filing and shall return by regular mail, any application disclosing that more than one application has been filed by any one person, firm or corporation.

    
    

17. Rule 7A-2.019, Florida Administrative Code, contains a list of all forms used by the Department. One of the approved forms is DBR 747L which is the preliminary application for new quota alcoholic beverage license. This form and Rule 7A-2.019 have not been challenged.

    
    

18. Section 120.56(1), Florida Statutes, provides:

    
    

    Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

    
    

19. Clearly, the rules and the form promulgated require all preliminary applicants to personally sign the form and attest to the accuracy of the information contained within the form. The purpose of the rule is to assure only one application is filed per applicant. In this case, the applicant did not sign the preliminary application on his own behalf. Thus, Petitioner did not comply with the rule. Moreover, Respondent does not have the authority to unilaterally waive any noncompliance with the stated rule and form.

    
    

20. In essence, Petitioner's argument is that the rule cannot abrogate a common law right to have a power of attorney for the purpose of executing

    documents. Again, this argument challenges the reasonableness of the rule. Petitioner has not proved Respondent somehow failed to follow its rule.

    
    

21. The evidence in this case does not suggest that Petitioner tried to submit more than one application. Nor does it show Petitioner's father attempted to file more than one application. The unrefuted evidence established that Petitioner simply did not execute the preliminary application when the rule and form clearly required him to do so.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, Bureau of Licensing and Records enter a final order disapproving Petitioner's application for a new quota beverage license.

DONE and RECOMMENDED this 11th day of October, 1988, in Tallahassee, Florida.

JOYOUS D. PARRISH

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 11th day of October, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2924

Rulings on Petitioner's proposed findings of fact:

Petitioner's proposed findings of fact are rejected as a recitation of the proceedings, argument, or commentary which have not been set forth in a form which allows specific rulings to be made. The following facts gleaned from the discussion offered by Petitioner are accepted:

That William C. Morton had no interest in the license acquired by the applicant, Donald C. Morton.

That Donald C. Morton took all steps to comply with the Department's regulations regarding the temporary license.

That William C. Morton was verbally authorized to sign the preliminary application for his son.

It is the policy of the Department to require an applicant to personally sign the preliminary application although the rule does not specifically prohibit execution by verbal power of attorney or agency.

Rulings on Respondent's proposed findings of fact:

1. Paragraphs 1,2, and 3 are accepted.

2. While the exact date is uncertain from the record, the fact that during the investigation it was discovered that Morton's father executed the preliminary application is accepted. Consequently, that portion of paragraph 4 which makes that assertion is accepted.

3. Paragraph 5 is accepted.

4. With the exception of the date, paragraph 6 is accepted. See the comment to paragraph 4 above.

5. Paragraph 8 is rejected as unsupported by the record.

6. Paragraph 9 is accepted.

7. Paragraph 10 is rejected as irrelevant, immaterial or unnecessary to the resolution of the issue of this case.

8. Paragraphs 11 and 12 are accepted.

COPIES FURNISHED:

Raymond A. Doumar

ALLSWORTH DOUMAR CAZEL CURTIS & CROSS

1177 Southeast 3rd Avenue

Fort Lauderdale, Florida 33316-1197

Harry Hooper

Deputy General Counsel

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

Daniel Bosanko, Director Department of Business Regulation Division of Alcoholic Beverages The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

Van B. Poole, Secretary The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

Thomas A. Bell, General Counsel Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

Docket for Case No: 88-002924

Orders for Case No: 88-002924