STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OWEN MARTIN YOUNG and )

AUDREY MAY YOUNG, )

)

Petitioners, )

)

vs. ) CASE NO. 90-4470

)

DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND ) TOBACCO, BUREAU OF LICENSING ) AND RECORDS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William R. Cave, held a formal hearing on November 28, 1990 in Sebring, Florida.

APPEARANCES

For Petitioners: James P. McCollum, Esquire

129 South Commerce Avenue Sebring, Florida 33870

For Respondent: Eric S. Haug, Esquire

Department of Business Regulation

175 South Bronough Street Tallahassee, Florida 32399-1007

STATEMENT OF THE ISSUES

Whether Petitioners should remain eligible for entitlement to a new quota alcoholic beverage license in St. Lucie County, Florida under the facts and circumstances of this case.

PRELIMINARY STATEMENT

In November of 1989 the Petitioners filed a Preliminary Application For New Quota Alcoholic Beverage License for St. Lucie County, Florida. By letter dated April 6, 1990, the Respondent notified the Petitioners that they were one of the preliminary applicants selected in the drawing for available liquor license in St. Lucie County, Florida and that a complete application for a grant or issuance of a liquor license must be filed with the Respondent within 45 days.

By letter dated June 5, 1990 the Respondent notified Petitioners of its intent to deny their entitlement to apply for a new quota liquor license in St. Lucie County on the basis that a complete application for issuance or grant of a license had not been filed within the prescribed time. This same letter also

granted Petitioners until June 15, 1990 to respond to the intent to deny. By letter dated June 25, 1990 the Respondent advised the Petitioners that their entitlement to apply for a new quota liquor license in St. Lucie County had been disapproved. The same letter advised them of their right to an administrative hearing. The Petitioners timely requested an administrative hearing and this proceeding ensued.

At the hearing, the Petitioners testified in their own behalf and presented the testimony of John Clark and L. B. Schoenfeld. Petitioners' exhibits 1 through 13, 14(b), 15 and 17 through 20 were received into evidence.

Petitioners withdrew exhibits 14(a) and 16. Respondent presented the testimony of L. B. Schoenfeld. Respondent's exhibits 1 and 2 were received into evidence.

No transcript was filed with the Division of Administrative Hearings. The Petitioners requested, and with concurrence of the Respondent, were granted until December 17, 1990 to file their Proposed Recommended Orders. In accordance with Rule 22I-6.031(2), Florida Administrative Code, the provision of Rule 28-5.402, Florida Administrative Code requiring a Recommended Order within

30 days of the hearing in this case was waived. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. On December 4, 1989 the Petitioners filed an application for inclusion in the drawing for a new quota alcoholic beverage license for St. Lucie County, Florida in accordance with Section 561.19(2), Florida Statutes. The application to participate in the drawing was properly and timely filed on DBR Form 747L, entitled, "Preliminary Application for New Quota Alcoholic Beverage License".

   
   

2. Paragraph 4 of the General Instructions of DBR Form 747L, advised the applicants as follows:

   
   

   This is Part One of a two (2) part applica- tion. The Division will only accept final application (Part Two) and award licenses to those persons listed on the application, provided such persons are qualified under the beverage laws and are successful in the drawing.

   
   

3. On March 29, 1990, the Respondent held a drawing in Tallahassee, Florida for 163 new quota liquor licenses. Petitioners were selected as a preliminary applicant for a new quota license in St. Lucie County.

4. On April 6, 1990, the Petitioners were mailed a certified letter entitled "Notice of Selection" advising the Petitioners of their selection as preliminary applicants for a new quota liquor license in St. Lucie County. Petitioners received this letter on April 9, 1990. This letter clearly advises the Petitioners:

   
   

   1. that an application for either a "grant" or an "issuance" of a license must be filed;

   2. of the difference between "grant" and "issuance";

   3. that a complete application for a "grant" or "issuance" must be filed within 45 days of the date of the letter which is calculated to be May 21 ,1990;

   4. that failure to timely file such applica- tion shall be deemed a waiver of the Peti- tioners' right to file for a new quota

      license and;

   5. of the immediacy of contacting the District 10 office in Ft. Pierce, Florida to obtain instructions and, if necessary, answer questions.

      
      

5. On or about April 17, 1990 John Clark, Petitioners' employee went to the District 10 office in Fort Pierce and discussed with Irene Wahlenmeyer the suitability of a location of a former lounge. There was no evidence that Clark discussed the May 21, 1990 deadline for applying for the new quota liquor license with Wahlenmeyer at this time.

   
   

6. On April 18, 1990 Petitioner, Owen Young contacted the District 10 office by phone and talked to Wahlenmeyer concerning the procedural aspects of applying for a new quota liquor license including the procedural aspects of applying for a "grant" of a license as opposed to applying for the "issuance" of a license. There is insufficient evidence to show that Wahlenmeyer suggested or implied that the Petitioners should apply for the "issuance" of a license as opposed to applying for a "grant" of a license. During the telephone conversation with Wahlenmeyer on April 28, 1990, Petitioner, Owen Young discussed with Wahlenmeyer the suitability of a location of a former lounge known as "Fanny's" and, the potential lease of this property. This was the same location discussed by Clark on April 17, 1990. There is no evidence that either of the Petitioners had any further contact with any of Respondent's employees subsequent to April 18, 1990 and prior to May 21, 1990, the final deadline to submit an application for a new quota liquor license. Although Petitioners' employee Clark visited the District 10 office sometime between May 10, 1990 and June 5, 1990, there is insufficient evidence to show that this visit was prior to May 21, 1990.

   
   

7. Subsequent to April 18, 1990 Owen Young began work on the application process by publishing a fictitious name, applying for an occupational license and obtaining a distance waiver from the zoning board as to the Fanny's location. Additionally, Petitioners entered into a lease for the Fanny's location, expended considerable sums of money on remodeling and obligated themselves to a monthly expenditure of approximately $2,500.00 per month.

   
   

8. There is no evidence that either of the Petitioners or Clark, on behalf of Petitioners, contacted the District 10 office or any of Respondent's other offices or any of Respondent's employees subsequent to April 6, 1990, the date

   of the notice of selection letter and prior to June 5, 1990, the date of the Notice of Intent to Disapprove letter inquiring as to the significance of the deadline date of May 21, 1990 or requesting an extension or waiver of the deadline date. Furthermore, there is no evidence that Wahlenmeyer or any of Respondent's other employees advised, suggested or implied that the May 21, 1990 deadline date could be or would be extended or waived.

   
   

9. On June 5, 1990 a letter entitled, Notice of Intent to Disapprove was mailed to the Petitioners advising them that: (a) their application for a new quota liquor license had not been filed within the prescribed time period of 45 days from April 6, 1990 the date the Notice of Selection had been mailed; (b) it was Respondent's intent to deny the Petitioners' entitlement to apply for a new quota liquor license in St. Lucie County; (c) they were given until June 18, 1990 to respond as to why this entitlement should not be disapproved and; (d) this time period to respond should not be considered as an extension of the time originally granted to file the application.

   
   

10. On June 8, 1990 Petitioners filed an Application for the Grant of a New Quota Liquor License with the District 10 office in Fort Pierce. This application was forwarded to Respondent's central office on an "Application Transmittal Form" which indicated a recommendation of approval by the District

    10 office Investigator, Irene Wahlenmeyer on June 8, 1990 and her supervisor, Bob Young on January 11, 1990. Bob Young later withdrew his recommendation of approval. There is insufficient evidence to show why Young withdrew his initial recommendation of approval.

    
    

11. On June 25, 1990, a letter entitled, "Notice of Disapproval" was sent to Petitioners from Respondent advising the Petitioners that their entitlement to apply for a new quota liquor license had been disapproved. The reasons stated for the disapproval was the failure of the Petitioners to timely file a complete application within the 45 days required by Section 561.19, Florida Statutes.

    
    

12. On or about July 5, 1990 the Petitioner, Owen Young contacted Schoenfeld via telephone and followed up with a letter on July 6, 1990 concerning the "Notice of Intent to Disapprove" and the "grant" of a license application filed on June 8, 1990. Schoenfeld responded with an investigation of the matter with the assistance of Captain D. L. Gray of the West Palm Beach district office. Gray's investigation concluded with a memorandum dated July 16, 1990 wherein Gray advised Schoenfeld that while the Fort Pierce office should not have accepted the application for grant of license from Petitioners or recommended approval, the notice of disapproval of June 25, 1990 was justified.

    
    

13. Respondent did not consider the application for grant of license filed on June 8, 1990 as being a completed application and as of December 6, 1990 the Petitioners have not filed any other application for a new quota alcoholic beverage license.

    
    

14. Respondent has extended the deadline date or re-initiated the application process where it was shown that the Respondent had incorrectly advised an applicant or had lost an application resulting in the applicant's untimely filing of an application. The purpose of the "Notice of Intent To Disapprove" is to allow the applicant the opportunity to point out to the Respondent its error. There is insufficient evidence to show that Petitioners' failure to timely file their application was due to any incorrect advise given them by the Respondent notwithstanding Petitioners' contention that they were

    advised to apply for an issuance of a license as opposed to a grant of a license. In any event, the Petitioners neither requested nor were they advised by the Respondent that the deadline date could or would be waived or extended.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceedings pursuant to Section 120.57(1), Florida Statutes.

    
    

16. Petitioners have the burden of proving their entitlement to apply for a new quota liquor license. Astral Liquors v. State Department of Business Regulation, 432 So.2d 93 (3 DCA Fla. 1982), affirmed, 463 So.2d 1130 (Fla. 1985). The Petitioners have failed to sustain their burden in this regard.

    
    

17. The process of issuing new quota liquor licenses is accomplished through a two-step process. The first step of this process is the filing of a preliminary application for inclusion in the drawing. The drawing is held and those selected are then required to submit an application for an alcoholic beverage license in accordance with Section 561.19(2)(c), Florida Statutes and Rule 7A-2.017(6), Florida Administrative Code. This is the second step of the application process.

    
    

18. Section 561.19(2)(c), Florida Statutes provides in pertinent part as follows:

    
    

    Subject to this selection process, an appli- cant 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. However, the license shall not be issued until and unless the applicant establishes to the satisfaction of the director that the premises to be licensed qualify under the Beverage Law. The applicant shall file an application for the premises on forms provided by the division within 45 days after

    the license has been granted, and the division shall investigate the premises as provided in

    s. 561.18. Failure to file an application for the premises within the time provided or failure of the applicant to maintain qualifi- cation during the period of time after the grant and before issuance shall cause the grant of the license to become void, the application shall be denied, and the next applicant with priority shall be considered for issuance of the license. (e.s.)

19. To further clarify and implement this provision of the law regarding the granting and issuing of alcoholic beverage licenses, the Respondent, pursuant to the authority granted it under Section 561.11, Florida Statutes, adopted Rule 7A-2.017(6)(a) and (b), Florida Administrative Code, which provides as follows:

    
    

    (6)(a) All applicants in the drawing whose number corresponds with the available number of quota liquor licenses shall file a full and complete application for a new quota liquor license, following their selection in the drawing. Such applications, instruc- tions, and other forms required are available from the District Field Office having juris- diction over such county and must be filed within 45 days of the date the division mails the notice of selection.

    (b) After selection and within the time requirement specified, an applicant shall file for a grant of a new quota liquor license on DBR form 701L, Application for the Grant of a New Quota Liquor License, referenced in Rule 7A-5.011, or alternatively shall simultaneously file for grant and issuance of a new quota liquor license using DBR form 700L, Application for Alcoholic Beverage License, referenced in Rule

    7A-5.010. For the purposes of this rule, simultaneously means filed at the same time at the appropriate District Field Office.

    Failure to file an application within such

    45-day period shall be deemed a waiver of the applicant's right to file for a quota liquor license. (e.s.)

    
    

20. It is uncontroverted that Petitioner received the "Notice of Selection" mailed to them by the Respondent but failed to file an application for a grant of a liquor license or an application for the issuance of a liquor license within the prescribed time period set forth in Section 561.19(2), Florida Statutes, and Rule 7A-2.017(6)(a), Florida Administrative Code. They, therefore, have waived their entitlement to apply for a new quota liquor license as set forth in Rule 7A-2.017(6)(b), Florida Administrative Code, notwithstanding Petitioners' contention that they were advised by Respondent's employee to file simultaneously for the grant and issuance since there was no evidence that the Respondent advised the Petitioners that the May 21, 1990 deadline date could be or would be extended or waived.

RECOMMENDATION

Based on the foregoing, it is recommended that the Respondent enter a Final Order finding that the Petitioners have waived their entitlement to apply for a new quota liquor license.

RECOMMENDED this 15th day of January, 1991, in Tallahassee, Florida.

WILLIAM R. CAVE

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 15th day of January, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4470

The following constitutes my specific rulings pursuant to Sections 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner

1. - 2. Adopted in Finding of Fact 1 as modified.

1. Not material or relevant.

2. Adopted in Finding of Fact 3 except the date was March 29, 1990 instead of April 6, 1990.

3. - 6. Adopted in Finding of Fact 4.

4. - 7. Adopted in Finding of Fact 5 but clarified.

8. - 9. Adopted in Finding of Fact 6 but clarified.

10. - 11. Adopted in Finding of Fact 7 but clarified.

1. Not material or relevant.

2. Adopted in Finding of Fact 9.

3. - 19. Restatement of testimony and not of Finding of Fact but see Finding of Fact 14.

20. - 21. Not material or relevant.

1. Third sentence adopted in Finding of Fact 10 otherwise not material or relevant.

2. Adopted in Finding of Fact 10.

3. Not material or relevant.

4. Adopted in Finding of Fact 12.

5. Adopted in Finding of Fact 12 as clarified otherwise not material or relevant.

Specific Rulings on Proposed Findings of Facts Submitted by Respondent

COPIES FURNISHED:

Leonard Ivey, Director

Division of Alcoholic Beverages and Tobacco

Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000

Joseph Sole, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000

Eric S. Haug, Esquire

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

James P. McCollum, Esquire

129 South Commerce Avenue Sebring, FL 33870

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-004470

Orders for Case No: 90-004470