STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY L. HOOKS, d/b/a )

MARY'S BAIT AND TACKLE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2916

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was conducted in this case on August 7, 1990, in West Palm Beach, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. At the hearing the parties were represented as follows:

APPEARANCES

For Petitioner: No appearance

For Respondent: D. Lance Langston

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

STATEMENT OF THE ISSUES

The issue in this case is whether the Petitioner's application for an alcoholic beverage license should be approved or whether it should be disapproved for the reason set forth in the letter of disapproval dated April 13, 1990.

PRELIMINARY STATEMENT

This case began on April 13, 1990, when the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Department) notified Petitioner, Mary L. Hooks, that her application for an alcoholic beverages license, license no. 60-5357, 1-APS, had been disapproved. The basis for that denial was alleged to be Petitioner's past felony conviction and lack of good moral character. Petitioner timely requested a hearing and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on May 10, 1990.

At the hearing, the Department presented the testimony of Cpt. Debbie L. Gray. The Department's exhibits numbered 1, 2, 3 and 7 were admitted into evidence. The Department requested and official recognition was taken of the recommended orders entered in the following cases: 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; Big John's Amoco v.

Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, DOAH Case No. 84-3155; 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.

A transcript of the proceedings has not been filed. Specific rulings on the proposed findings of fact submitted by the Department are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witness and the evidence admitted into evidence, the following findings of fact are made:

1. The Department is the state agency authorized to process applications for alcoholic beverage licenses.

   
   

2. On January 10, 1990, the Petitioner, Mary L. Hooks, submitted an application to the Department for a series 1-APS alcoholic beverage license. Petitioner sought the license for a business known as Mary's Bait & Tackle which is located at 110 Conners Highway, Canal Point, Palm Beach County, Florida. According to records submitted to the Department, Petitioner's mailing address was P.O. Box 604, Canal Point, Florida, 33438.

   
   

3. In response to questions posed on the alcoholic beverage application form, Petitioner disclosed that she was convicted of a felony, the delivery of marijuana, on January 22, 1986. That charge and conviction stemmed from activities which had purportedly occurred in Palm Beach County, Florida.

   
   

4. Petitioner's civil rights were restored by executive order entered December 2, 1988.

   
   

5. On April 13, 1990, the Department notified the Petitioner that her application for license no. 60-5357, 1-APS had been disapproved. That notice provided the following reason and authority for the disapproval:

   
   

   Authority 561.15(1)(2) and

   112.011, Florida Statutes Reason(s)

   Applicant, Mary L. Hooks, has been convicted of a felony within the last past fifteen years and is not believed to be of good moral character. While Mrs. Hooks has a Restoration of Civil Rights, the crime for which she was convicted directly relates to the alcoholic beverage laws and, for this reason, the application is being denied.

   
   

6. Petitioner timely filed a challenge to the notice of disapproval, but did not appear for the formal hearing. No evidence was presented on her behalf.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57, Florida Statutes.

   
   

8. The burden of establishing entitlement to the license applied for rests with the applicant, the Petitioner. See J.W.C. Company, Inc. v. Department of Transportation, 396 So2d 778 (Fla. 1st DCA 1981).

   
   

9. Section 561.15, Florida Statutes, provides, in part:

   
   

   1. 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 past 5 years in this state or any other state or the United States of soliciting for prostitution, pandering, letting premises for prostitution, or keeping a disorderly place or of any criminal violation of chapter 893 or the controlled substance act of any other state or the Federal Government; or who has been convicted in the last past 15 years of any felony in this sate 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.

   
   

10. Section 112.011, Florida Statutes, provides, in part:

    
    

    (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.

    
    

11. In the case at issue, the Petitioner has failed to establish she is entitled to the license for which she has applied. As a matter of law, Petitioner is barred from licensure since her felony conviction related to the illegal dealing of a controlled substance. The identification of such crimes as a bar to licensure is persuasive that the commission of such a crime is directly related to the business of selling alcoholic beverages. Petitioner has presented no evidence to rebut the conviction disclosed in her application. Moreover, the Petitioner has presented no evidence to establish she is of good moral character.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

That the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco entered a final order denying Petitioner's application for a series 1-APS license.

DONE AND ENTERED this 24th day of August, 1990, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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

24th day of August, 1990.

APPENDIX TO CASE NO. 90-2916

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT:

1. Paragraphs 1, 2, 3, 5, and 6 are accepted.

2. Paragraph 4 is rejected as not supported by the record or hearsay.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

None submitted.

COPIES FURNISHED:

D. Lance Langston Assistant General Counsel

Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007

Mary L. Hooks

P.O. Box 605

Canal Point, FL 33438

Cpt. Debbie L. Gray

Elisha Newton Dimick Building

111 Georgia Ave., Room 207 West Palm Beach, FL 33401

Leonard Ivey, Director

Dept. of Business Regulation Div. of Alcoholic Beverages &

Tobacco

The Johns Building

725 S. Bronough Street Tallahassee, FL 32399-1007

Docket for Case No: 90-002916

Orders for Case No: 90-002916