STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 96-5972

)

WILLIE LEE LEWIS d/b/a )

LS LOUNGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on July 2, 1997, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Leslie Anderson-Adams, Esquire

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Iola Mosley, Esquire

Whitfield & Mosley, P.A. Post Office Box 34

West Palm Beach, Florida 33402 STATEMENT OF THE ISSUE

The issue presented is whether Respondent Willie Lee Lewis d/b/a LS Lounge is guilty of the allegations contained in the

notice of Administrative Action filed against him, and, if so, what disciplinary action should be taken, if any.

PRELIMINARY STATEMENT

On October 17, 1996, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, issued its notice of Administrative Action, and Respondent Willie Lee Lewis d/b/a LS Lounge timely requested an evidentiary hearing regarding the Department's allegations. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

The Department presented no witnesses in its case-in-chief.

Respondent testified on his own behalf. The Department then presented the testimony of Lt. Bob M. Young and Special Agent Leon James Weech as rebuttal evidence. The Department's exhibits numbered 1-4 were also admitted in evidence.

FINDINGS OF FACT

1. Respondent Willie Lee Lewis d/b/a LS Lounge is the holder of alcoholic beverage license No. 53-01765, series 2-COP, authorizing him to operate as a vendor of alcoholic beverages.

2. On May 31, 1996, Respondent filed with the Department his Application for Alcoholic Beverage License and Cigarette Permit and its accompanying Personal Questionnaire form.

3. The Personal Questionnaire form contains a question asking if the applicant has ever been arrested or charged with any violation of the law other than minor traffic violations,

   and, if so, whether the applicant was convicted. Respondent answered "yes" to the first part of the question and "no" to the second part and added a notation that "adjudication was withheld." At the bottom of that series of questions, the form requests full particulars for any "yes" answer and lists the type of information requested, only a portion of which is legible on the copy of the form admitted in evidence. On this portion of the application, Respondent wrote "Martin County Sherifs [sic] Department."

4. On April 14, 1992, Respondent was charged by Information in the Martin County Circuit Court, Case No. 92-352 CFA, with one count of unlawfully selling, delivering, or possessing with the intent to sell or deliver a controlled substance, cocaine. The second count alleged that Respondent unlawfully used or possessed with the intent to use drug paraphernalia, i.e., a razor blade. Respondent pled nolo contendere to count one, possession of cocaine.

5. On December 9, 1992, the Court entered its Order Withholding Adjudication of Guilt and Placing Defendant on Drug Probation, placing Respondent on probation for a period of two years.

6. When Respondent was completing his application for a beverage license, he went to the Department's offices in Martin County on several occasions. Department employees assisted him in completing his application.

7. Respondent was concerned as to whether he was eligible for licensure due to the arrest which resulted in adjudication being withheld. He discussed that concern with the Department's employees in its Martin County office. The lady he spoke with did not know if Respondent could obtain a beverage license if adjudication had been withheld. She telephoned the Department's Tallahassee office regarding that question and then advised Respondent that he was not precluded from licensure. Respondent submitted certified copies of the Information and of the Order Withholding Adjudication of Guilt.

8. The Department issued a beverage license to Respondent in May 1996, and Respondent set up his business. He entered into a lease for the business premises at a cost of $1,000 a month and spent $5,000 to $6,000 renovating the premises. He leased a big- screen T. V. at a cost of $200 a month. He purchased D. J. equipment for $8,000. He purchased inventory, hired employees, and began advertising. It costs Respondent approximately $1,800 a week to operate the business. He has a one-year contract for radio advertising and renewed the lease for his business premises for another year in May of 1997.

9. It is the policy of the Department to determine on a case-by-case basis whether a person who has a criminal history should be given a license. The Department does issue licenses to persons who have been charged with a crime, have pled nolo

   contendere to those charges, and have had adjudication withheld and been placed on probation.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sections 120.569 and 120.57(1), Florida Statutes.

11. The notice of Administrative Action filed in this cause contains two counts. Count 1 alleges that Respondent falsely swore to arrest data on the Personal Questionnaire form, which was signed under oath, "in violation of Section 559.791, within 561.29(1)(a), Florida Statutes." Count 2 alleges that Respondent does not qualify to hold an alcoholic beverage license under Section 561.15(1) due to a violation of Rule 61A-1.017(2)(a), Florida Administrative Code, which involves being penalized for a criminal act involving unlawful drugs.

12. As to Count 1, Section 559.791, Florida Statutes, authorizes the Department to deny, suspend, or revoke a license where the applicant (or licensee) has falsely sworn to a material statement in the application for licensure. Section 561.29(1)(a) authorizes the Department to revoke or suspend a license where the licensee violates the law on the licensed premises or elsewhere while in the scope of employment. There is no evidence that Respondent violated the law on the licensed premises or elsewhere while in the scope of his employment, and Respondent cannot be found guilty of violating Section 561.29(1)(a).

13. The Department argues that Respondent is guilty of violating Section 559.791 because he did not disclose all of his arrests. The Department's first argument is that Respondent did not provide all of the particulars on his Personal Questionnaire regarding the arrest he disclosed. That argument is not persuasive since Respondent disclosed the arrest, disclosed the disposition, disclosed the arresting agency, and provided to the Department certified copies of the Information and of the Order Withholding Adjudication of Guilt and Placing Defendant on Drug Probation. There was nothing more to disclose.

14. The Department's second argument is that Respondent did not disclose all of his arrests. That allegation must be placed in context with the evidence and its order of presentation. The law is well settled that in a revocation proceeding such as this the Department must prove its allegations by clear and convincing evidence. At the final hearing, the Department's case-in-chief consisted of placing into evidence four exhibits, the facts concerning which were stipulated to by the Respondent: his licensure application, his Personal Questionnaire, the Information, and the Order Withholding Adjudication. The Department then rested. The Respondent then testified on his own behalf, and the Department waived cross-examination. The Respondent then rested. At that point, the Department had not proven its allegations regarding the Respondent submitting false

    information. The Department was then afforded its opportunity to present rebuttal evidence.

15. Instead of presenting rebuttal evidence, i.e., evidence to rebut something unanticipated which was presented during Respondent's case, the Department then put on two witnesses. One of the witnesses testified that in September 1996 he saw a piece of paper which stated that Respondent had been arrested on other occasions but either no charges were filed or the charges were nolle prossed. No evidence was offered as to when, where, or why, and no competent evidence was offered regarding that witness' hearsay testimony.

16. Section 120.57(1)(c), Florida Statutes, prohibits basing a finding of fact on only hearsay evidence unless it would be admissible over objection. The Department's witness' testimony as to what that document purported to recite would not be admissible over objection, and there is no competent evidence which that hearsay explained or supplemented. Accordingly, that evidence was not clear or convincing of anything.

17. Moreover, the Department's allegation that Respondent had been arrested more than one time is not included in the notice of Administrative Action, is not mentioned in the stipulated facts filed as part of the parties' Pre-hearing Stipulation, is not listed as a issue to be tried, and was raised for the first time in the Department's rebuttal presentation. By the Department's approach to putting on its evidence after

    Respondent had rested, the Respondent had no opportunity to explain whether those arrests were his, whether he understood he had been arrested where no charges had been filed or they were nolle prossed, or why he had not disclosed them, if in fact any of them had even occurred.

18. The Department failed to present clear and convincing evidence to prove that Respondent swore falsely to his arrest record. Therefore, the Department failed to meet its burden of proof that Respondent is guilty of violating Section 559.791, Florida Statutes, as alleged in Count 1.

19. As to Count 2, Section 561.15(1), Florida Statutes, requires an applicant for licensure to have good moral character. Rule 61A-1.017(2)(a), Florida Administrative Code, provides as follows:

    
    

    1. Conduct that does not establish the qualities of trust and confidence include the following:

       
       

       1. Being penalized for a criminal act in this country or a foreign country that is punishable by imprisonment for a term exceeding 1 year when the act is related to alcoholic beverages,

    failure to pay taxes, unlawful drugs or controlled substances, prostitution, or injuring another person in the preceding 15 years . . . .

    
    

    The Department cited no cases and presented no testimony that a person is "penalized" when a plea of nolo contendere is accepted by the Court, adjudication is withheld, and a defendant is placed on probation. Whether a person has been "penalized" may well be

    a subjective determination. Certainly, being convicted of a crime and incarcerated would be a penalty; having adjudication withheld may not be.

20. In any event, the evidence is uncontroverted that the Department looks at each situation where adjudication is withheld on a case-by-case basis. In the case at bar, the Department has simply relied on its rule and has not presented any evidence that Respondent lacks good moral character other than its evidence regarding the arrest which Respondent disclosed. There is no clear and convincing evidence that Respondent lacks good moral character as alleged in Count 2 of the notice of Administrative Action.

21. Finally, the Department was on notice of Respondent's disclosed arrest before it issued a license to Respondent, in effect determining that Respondent does possess good moral character. Section 561.15(1), Florida Statutes, makes lack of good moral character a basis for denying an application for licensure, not for revoking a license once it has been issued.

22. In its proposed recommended order, the Department argues that Respondent has violated statutory provisions which were not charged in the Department's notice of Administrative Action. Those provisions are not addressed in this Recommended Order since Respondent was not on notice that those violations were charged and, therefore, had no opportunity to defend against them.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED THAT a final order be entered finding Respondent not guilty of the allegations against him and dismissing the notice of Administrative Action.

DONE AND ENTERED this 12th day of September, 1997, at Tallahassee, Leon County, Florida.

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1997.

COPIES FURNISHED:

Leslie Anderson-Adams, Esquire Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1007

Iola Mosley, Esquire Whitfield & Mosley, P.A. Post Office Box 34

West Palm Beach, Florida 33402

Lt. Bob M. Young

800 Virginia Avenue, Suite 7 Fort Pierce, Florida 34982

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Richard Boyd, Director Department of Business and

Professional Regulation Division of Alcoholic Beverages

and Tobacco

1940 North Monroe Street Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-005972

Orders for Case No: 96-005972