STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK LYNN TAYLOR and )

BIMINI'S BEACHSIDE OF )

COCOA BEACH, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 91-1761

)

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF )

ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Rockledge, Florida, on May 14, 1991, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jack L. Taylor, pro se

400 W. Cocoa Beach Causeway Cocoa Beach, Florida 32931

For Respondent: John B. Fretwell

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

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is entitled to issuance of a quota liquor license.

PRELIMINARY STATEMENT

By letter dated January 8, 1991, Respondent advised Petitioners that it rescinded its prior approval of Bimini's Beachside of Cocoa Beach, Inc. for transfer of a new quota liquor license. The letter states that the intent to deny the license is based on the fact that Petitioners failed to remit timely the $26,250 fee. An exchange of correspondence failed to resolve the dispute, and Respondent advised Petitioners, by letter dated February 5, 1991, that their application was denied.

By letter dated February 15, 1991, Petitioners requested a formal hearing.

At the hearing, Petitioners called four witnesses and offered into evidence

10 exhibits. Respondent called two witnesses and offered into evidence 14 exhibits. All exhibits were admitted.

No transcript was ordered. Each party filed a proposed recommended order.

Treatment of the proposed findings is detailed in the appendix.

FINDINGS OF FACT

1. By Notice of Selection dated August 20, 1990, Respondent informed William Davis Tharpe that it had approved his application for the grant of a new quota liquor license in Brevard County. By application received on September 28, 1990, by the Cocoa Beach District office of Respondent, Mr. Tharpe and Bimini's Beachside of Cocoa Beach, Inc. jointly applied to Respondent for the transfer of the Notice of Selection from Mr.Tharpe to Bimini's Beachside.

   
   

2. By Transfer of Notice of Selection dated November 2, 1990, Respondent informed Petitioners of the approval of the application for transfer of the Notice of Selection. In material part, the Transfer of Notice of Selection states:

   
   

   * * *

   
   

   Enclosed is a notice of fee payment due for the transfer of the Notice of Selection. By law, this must be paid to the Division within

   45 days of the date of this letter. Please be sure to return the payment notice with your remittance.

   
   

   . . . Failure to remit the transfer fee to this office . . . within the 45 day period allotted will be deemed as a waiver of your right to file for the new quota license. The application will be denied and the next applicant with priority shall be given consideration for a new quota license.

   
   

   Therefore, you must immediately contact the office whose address is listed on the bottom of this letter. They will be able to supply the forms and instructions necessary to file a complete application for the "grant" or "issuance" of the license as well as answer any questions. . . .

   
   

   Please bear in mind that you must pay the applicable transfer fee and file either application within 45 days of the date of this letter which is calculated to be December 17, 1990. We urge you to move forward promptly in order to save time necessary to process the application and complete the investigative process.

   
   

3. The Transfer of Notice of Selection was on the letterhead of the Department of Business Regulation and signed by the Chief, Bureau of Licensing

   and Records on behalf of the Director, Division of Alcoholic Beverages & Tobacco. A courtesycopy of the Transfer of Notice of Selection was shown to have been sent to the "Div. of Alcoholic Beverages and Tobacco, District #12 Rockledge" at the address of the District office in Rockledge.

   
   

4. After receiving the Transfer of Notice of Selection, Mr. Taylor, who is the president and sole shareholder of Bimini's Beachside, arranged a meeting with Joan Root of the Rockledge District office. At the meeting, Mr. Taylor applied for and received a temporary license to sell liquor, which was signed by another individual of the Rockledge District office. In connection with the temporary license, Mr. Taylor paid Ms. Root $437.50--apparently by personal check.

   
   

5. At the same meeting, Mr. Taylor presented Ms. Root with a personal check dated November 12, 1990, in the amount of $26,250 and payable to the Department of Business Regulation. This check, for which ample funds existed at the payor bank, was for payment of the transfer fee referenced in the Transfer of Notice of Selection dated November 2, 1990.

   
   

6. Ms. Root declined to accept the larger check and informed Mr. Taylor that he had to send that money to the Division office in Tallahassee. She also told him that the check had to be from the corporation and that the fee had to be paid by the deadline of December 17, 1990, as set forth in the Transfer of Notice of Selection.

   
   

7. Mr. Taylor mailed a corporate check in the amount of $26,250 to the Division office in Tallahassee, but not untilDecember 21, 1990, according to the postmark on the envelope. Respondent received the check on December 28, 1990.

   
   

8. By letter dated January 8, 1991, Respondent informed Petitioners that it was rescinding its prior approval and notifying them of Respondent's intent to deny the new quota liquor license because the fee had been untimely paid. Following an exchange of correspondence that failed to resolve the dispute, Petitioner timely requested a formal hearing.

   
   

9. Petitioners expended over $20,000 to obtain Mr. Tharpe's rights in the new quota liquor license, as well as additional costs in connection with the preparation of the business premises.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

11. In material part, Section 561.19(3)(b) provides:

    
    

    If the application to transfer the notice of selection is approved by the division, the transferee shall have 45 days from the date of approval to pay a fee . . .. Failure of the transferee to timely pay the fee required by this paragraph . . . shall cause the selection to become void, in which case the application shall be denied and the next applicant with priority shall be considered for issuance of the license.

12. In tendering the transfer fee on November 13 to Ms. Root of the Rockledge District office, Mr. Taylor ignored theclear instructions contained in the November 2 Notice of Selection. Refusing the tender, Ms. Root informed Mr. Taylor when and where he had to pay the transfer fee. Ms. Root's acceptance of Mr. Taylor's check for $437.50 for the temporary license and refusal of his check for $26,250 for the transfer fee, although unexplained at the hearing, is irrelevant. The November 2 letter was clear where the transfer fee was to be paid. Also, Mr. Taylor had more than enough time to send the money to Tallahassee following the November 13 visit to the Rockledge District office. When he failed to do so, his interest in the subject new quota liquor license was voided.

RECOMMENDATION

Based on the foregoing, it is hereby recommended that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order voiding the Transferee Notice of Selection previously sent to Petitioners.

RECOMMENDED this 29th day of May, 1991, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-1761

Treatment Accorded Petitioners' Proposed Findings

1 (first two sentences): adopted.

1 (third sentence): rejected as irrelevant and unsupported by the greater weight of the evidence.

1 (fourth sentence): rejected as subordinate.

1 (last sentence): rejected as recitation of testimony.

2-3: rejected as irrelevant.

4: rejected as unsupported by the greater weight of the evidence.

5: first sentence adopted. Remainder rejected as irrelevant. The November 2 letter clearly states when the transfer fee had to be paid to Tallahassee.

Nothing in the handling of the matter by Respondent warrants the relief that Petitioners seek. The result in this case is harsh when the mere neglect of Mr.

Taylor is weighed against the loss of more than $20,000 and the value of a new quota liquor license. However, in the absence of other factors, such as some ambiguity or confusion for which Respondent is responsible, the law does not permit a recommendation compelling Respondent to give Mr. Taylor another chance. This case does not raise the issue whether Respondent has such discretion and, if so, whether it should be exercised here.

6: rejected as irrelevant. The evidence concerning a single extension involved an applicant who was not a transferee. In any event, Petitioners failed to request an extension during the 45-day period.

7: rejected as not finding of fact.

Treatment Accorded Respondent's Proposed Findings

Except as otherwise noted, all proposed findings are adopted or adopted in substance.

7: rejected as irrelevant and unsupported by the greater weight of the evidence.

9-17 and 24: rejected as subordinate.

COPIES FURNISHED:

Janet E. Ferris, Secretary Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, FL 32399-1000

Donald D. Conn, General Counsel Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, FL 32399-1000

Richard W. Scully, Director

Division of Alcoholic Beverages and Tobacco Department of Business Regulation

The Johns Building

725 South Bronough Street Tallahassee, FL 32399-1000

Jack L. Taylor

400 W. Cocoa Beach Cswy. Cocoa Beach, FL 32931

John B. Fretwell Assistant General Counsel

Department of Business Regulation 725 S. Bronough St.

Tallahassee, FL 32399-1007

Docket for Case No: 91-001761

Orders for Case No: 91-001761