STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN BROWN, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1505

) 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 April 24, 1989, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Harold F. X. Purnell, Esquire

Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road

Post Office Box 6507 Tallahassee, Florida 32314-6507

For Respondent: John B. Fretwell, Esquire

Assistant General Counsel Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

STATEMENT OF THE ISSUES

The ultimate issue is whether Petitioner is entitled to apply for a new quota liquor license in Hillsborough County. This requires a determination of whether Petitioner waived his right to apply for the license when he failed to do so within forty-five (45) days of a notice sent by the Division of Alcoholic Beverages and Tobacco, but returned undelivered.

PRELIMINARY STATEMENT

On February 10, 1989, the Division advised Petitioner that his right to apply for a new quota liquor license in Hillsborough County pursuant to Section 561.19, F.S., had been waived and that he was no longer eligible for entitlement to a new quote license. Petitioner responded with a timely request for a formal hearing.

At the hearing Petitioner testified in his own behalf and presented the testimony of Barry Schoenfeld, Chief of Licensing for the Division of Alcoholic Beverages and Tobacco. His request that official notice be taken of Emergency Rule 7AER 88-12, was granted without objection.

Respondent also presented the direct testimony of Barry Schoenfeld, and its exhibits #1-7, comprising the agency file in this matter, were received into evidence without objection. The handwritten notes on these exhibits were disregarded, as requested.

After the hearing both parties submitted proposed recommended orders within the 10-day deadline. Thereafter, Respondent filed a motion to strike Petitioner's proposed recommended order, and Petitioner responded. The motion to strike is DENIED. Respondent misconstrued Petitioner's submittal as a rule challenge.

Both proposed orders have been considered in the preparation of this order.

The findings of fact proposed by both parties are adopted in substance herein, as the material facts are not in dispute.

FINDINGS OF FACT

1. On July 5, 1988, John Wilson Brown (Brown) filed a preliminary application for a new quota liquor license in Hillsborough County, Florida. This application entitled him to be considered in a double random selection public drawing held by the Division of Alcoholic Beverages and Tobacco (DABT) for the purpose of awarding licenses which have become available through population growth in a county permitting the sale of alcoholic beverages.

   
   

2. On the application form, Brown gave his "correct mailing address" as 3327 Holly Hock Court, Orlando, Florida 32812. This is his residence, and is the only address supplied on the form.

   
   

3. The drawing was held for Hillsborough County applicants on October 28, 1988. The Division advertises the drawings in the Florida Administrative Weekly and gives notice to the news media to run stories.

   
   

4. Brown received a priority number in the October 28, 1988 drawing which entitled him to be one of the initial applicants for award of a liquor license. "Winners" of the drawing, like Brown, must apply for the license. Those applications are reviewed and an investigation is conducted to determine whether they qualify under the beverage law. If not, the next applicant in line is considered.

   
   

5. In a letter dated November 8, 1988, sent certified mail, to Brown's Holly Hock Court address, DABT attempted to notify Brown that he was one of the preliminary applicants selected in the Hillsborough County drawing. The letter cited the applicable statute and rule and stated that a full and complete application must be filed within forty-five (45) days of the date on the letter, in this case, December 23, 1988. The letter further provided that failure to file within the deadline would be deemed a waiver of the right to file for the new quota license.

   
   

6. Brown never received that letter. During the period, July 1988 through January 1989, he was working twelve to fourteen hours a day, seven days a week at two restaurant-lounges he owns in the Orange County area.

   He did not review his mail for weeks at a time and relied on his live-in girlfriend to pick it up. He looked at the mail at the end of the month in order to pay the bills.

   
   

7. The postal-service attempted to deliver the certified letter on November 10, 1988, November 16, 1988 and November 23, 1988. Brown never picked up the letter from the post office and it was returned unclaimed to the DABT, on or about November 28, 1988.

   
   

8. Brown vaguely remembers seeing the certified letter slip from the post office, but did not attempt to pick up the letter until late November or early December. By then, the letter had been returned. Brown had no idea at that time who had attempted to send him a certified letter.

   
   

9. No further contact was attempted by the DABT until January 23, 1989, when Brown was sent, by regular mail, a notice that the Division intended to deny his entitlement to apply for the license because he failed to apply within the prescribed time period.

   
   

   Brown received this notice and immediately sent a response, dated January 27, 1989, that he had not been aware of the certified mail and requesting reconsideration.

   
   

10. Brown also spoke by telephone with Barry Schoenfeld, Chief of Licensing for the Division. Brown explained that he had been extraordinarily busy and had not attempted to pick up the certified letter until it was too late.

    
    

11. On February 10, 1989, DABT sent, by certified mail, the notice of disapproval which gave rise to this proceeding. Brown received that notice, sent also to his Holly Hock Court residence.

    
    

12. The value of a new quota liquor license varies from county to county. In Hillsborough County it is worth $50,000.00 to $75,000.00, or more.

    
    

13. The agency utilizes certified mail for its notice of drawing results to help assure that the applicant actually gets the notice. Only one application extension has been granted in the seven years since the drawing procedure was initiated. That case involved an individual who was in the military and presented a hardship based on that service. The individual was given an additional forty-five (45) days to apply.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), F.S. and Section 561.19(4), F.S.

    
    

15. The substance of Petitioner's case is that the agency had some affirmative obligation to notify the applicant by other means when it became apparent that the certified mail notice was unsuccessful. Petitioner also argues that his failure to retrieve the letter at the post office was excusable and that an extension of the deadline should be granted. Finally, Petitioner argues that the circumstances as presented do not constitute a "waiver" of his right to apply for the new quota license.

16. Petitioner has the burden of proving his entitlement to apply for a new quota liquor license. Astral Liquors v. State Department of Business Regulation, 432 So.2d 93 (Fla. 3d DCA 1983) affirmed, sub nom, 463 So.2d 1130 (Fla. 1985).

    
    

17. Section 561.19(2), F.S. was amended in 1988, effective October 1, 1988, to include this pertinent language:

    
    

    Subject to this selection process, an applicant shall, after a drawing is held, have 45 days from the date the division mails the notice of selection to file an application on forms provided by the

    division and if such applicant is found qualified as provided by the Beverage Law, a license shall be granted.

    
    

    Prior to that amendment, the statute did not plainly require another application after the drawing, but appeared to contemplate that the drawing would simply establish the order in which the applicant would be considered:

    
    

    ... After all applications are filed with the director, the director shall then determine

    by random selection drawing the order in which each applicant's name shall be matched with a number selected by random drawing; and that number shall determine the order in which the applicant will be considered for a license. Subject to this selection process, if an applicant is found qualified as provided by the Beverage Law, a license shall be granted...

    Section 561.19(2), F.S. (1987)

    
    

18. The rules of the division did, however, require a subsequent application. Rule 7A-2.017(6), F.A.C.

    
    

    Those rules were amended first by emergency rule 7AER 88-12, effective 11/9/88, then by regular rule 7A-2.017, F.A.C., in pertinent part as follows:

    
    

    (6) All applicants in the drawing whose number corresponds with the available number of quota liquor licenses shall file a full and complete application for issuance of a new quota liquor license using DBR form 700L. Application for Alcoholic Beverage License, or for a grant of a new quota liquor license on DBR form 701L, Application for the Grant of a New Quota Liquor License, an alcoholic beverage license, following their selection in the drawing. Such applications, instructions, and other forms or documents required are available from the District Field Office having jurisdiction over such county and must be filed within 45 days of the date the division mails the notice of their selection. Failure to file an

    application within such 45-day period shall be deemed a waiver of the applicant's right to file for a quote liquor license.

    
    

    [Underlined text denotes additions; text struck through denotes deletions.]

    
    

19. Contrary to Petitioner's assertions, nothing in the statute, as amended, or the rules impose an obligation on the division to assure that the applicant is notified of his success in the drawing.

    
    

    It is, rather, the applicant's responsibility to keep himself informed:

    
    

    (5) Upon completion of the drawing, the Division shall maintain a list of all applicants in the order in which they were selected at both the Division's District Office having jurisdiction over the county and at the Division's headquarters in Tallahassee. It is the final responsibility of each applicant to determine their priority as established at the random drawing. The Division will, however, notify by certified mail those applicants whose priority number is within the number of available quota licenses. Such notification will be sent to the address listed in the application and shall notify the applicant of their entitlement to apply for a new quota liquor license. Should the Division be unsuccessful in perfecting the mailing of such notice at the address listed on the application, the Division shall have no further responsibility in notifying the applicant of their entitlement to apply for a quota liquor license.

    Rule 7A-2.017, F.A.C.

    (emphasis added)

    
    

20. It is uncontroverted that the Division followed the notification requirements in its rule and was relieved of further responsibility. The statute as amended in 1988 does not, by its plain language, create additional notice requirements.

    
    

21. In spite of the evidence that he is a hard-working business man and vitally interested in obtaining another liquor license, Petitioner was negligent in following through on his preliminary application and failed to prove his entitlement to an extension of the deadline for filing a further application. Although the drawing "winners" have the "right" to apply for a license, Rule 7A-

2.017 F.A.C. imposes on them the ultimate responsibility for perfecting that right. The operation of a liquor business is nonetheless, a privilege. Astral Liquors, supra. The cases cited by Petitioner regarding waiver of a known right are, thus, distinguished.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that the Division of Alcoholic Beverages and Tobacco issue its final order finding that Petitioner has waived his entitlement to file for a new quota liquor license.

DONE and ORDERED this 6th day of June, 1989, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1989.

COPIES FURNISHED:

HAROLD F. X. PURNELL, ESQUIRE OERTEL, HOFFMAN, FERNANDEZ

& COLE, P.A.

2700 BLAIR STONE ROAD POST OFFICE BOX 6507

TALLAHASSEE, FLORIDA 32314-6507

JOHN B. FRETWELL, ESQUIRE ASSISTANT GENERAL COUNSEL DEPARTMENT OF BUSINESS REGULATION THE JOHNS BUILDING

725 SOUTH BRONOUGH STREET TALLAHASSEE, FLORIDA 32399-1000

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, ESQUIRE GENERAL COUNSEL

DEPARTMENT OF BUSINESS REGULATION THE JOHNS BUILDING

725 SOUTH BRONOUGH STREET TALLAHASSEE, FLORIDA 32399-1000

STEPHEN R. MACNAMARA, SECRETARY DEPARTMENT OF BUSINESS REGULATION THE JOHNS BUILDING

725 SOUTH BRONOUGH STREET TALLAHASSEE, FLORIDA 32399-1000

Docket for Case No: 89-001505

Orders for Case No: 89-001505