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DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs JACK HOPE, D/B/A JACK`S FOOD STORE, 97-001678 (1997)

Court: Division of Administrative Hearings, Florida Number: 97-001678 Visitors: 38
Petitioner: DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO
Respondent: JACK HOPE, D/B/A JACK`S FOOD STORE
Judges: STUART M. LERNER
Agency: Department of Business and Professional Regulation
Locations: Miami, Florida
Filed: Apr. 04, 1997
Status: Closed
Recommended Order on Wednesday, August 6, 1997.

Latest Update: Jul. 15, 2004
Summary: Jurisdiction relinquished to Division of Alcoholic Beverages and Tobacco (DABT) where licensee admitted to criminal conviction that DABT alleged disqualified him from licensure.
97-1678.PDF

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS


DEPARTMENT OF BUSINESS AND )

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

)

Petitioner, )

)

vs. ) Case No. 97-1678

) JACK HOPE, d/b/a JACK’S FOOD ) STORE, )

)

Respondent. )

)


ORDER RELINQUISHING JURISDICTION


On February 13, 1997, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division) issued an Administrative Action against Respondent in which it alleged the following:

On or about August 10, 1994, you, HOPE, JACK, d/b/a JACK'S FOOD STORE your agent(s), servant(s), or employee(s), to wit: JACK HOPE, Corporate Officer, was found guilty of Possession of Unauthorized Access Device, a violation of U.S. Title & Section 18:1029(a)(3). This felony record impairs your qualification to hold an alcoholic beverage license pursuant to Section 561.15(2), Florida State Statute.

Section 561.15(2), Florida Statutes, provides that "[n]o license under the Beverage Law shall be issued to any person . . . who has been convicted in the last 15 years of any felony in this state or any other state or the United States." It further provides that "[t]he term 'conviction' shall include an

adjudication of guilt on a plea of guilty or nolo contendre." Subsection (3) of Section 561.15, Florida Statutes, authorizes the Division to revoke "[a]ny license issued to a person . . . [who] would not qualify for the issuance of a new license or the transfer of an existing license." Accordingly, the Division is statutorily authorized to revoke the license of a person "who has been convicted in the last 15 years" of a federal crime classified as a felony under the laws of the United States, as, the Administrative Action issued in the instant case alleges, Respondent has been. See McCoy Restaurants, Inc. v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 616 So. 2d 545 (Fla. 1st DCA 1993)("The Division has construed this statutory language as encompassing a felony conviction in another jurisdiction without regard to whether the offense would be classified as a felony under the laws of Florida. We agree that this is a straight-forward and appropriate construction of the statute. As indicated in Guiseppe Pizzeria v. Department of Business Regulation, 472 So.

2d 1331 (Fla. 3d DCA 1985), under section 561.15(2) it is irrelevant whether the foreign offense would be a felony in Florida."); Guiseppe Pizzeria v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 472 So. 2d 1331, 1332 (Fla. 3d DCA 1985)("Section 561.15(2), Florida Statutes (1981) provides that '[n]o license under the Beverage Law shall be issued to any person who has been . . . convicted in

the last 15 years of any felony in this state or any other state or the United States. . . .' This provision does not allow the Division to exercise any discretion, but requires denial of a license when such a conviction exists. The fact that the crime may not be a felony in this state is irrelevant.").

In response to the issuance of the Administrative Action, Respondent completed and submitted to the Division a "Request for Hearing" form on which he checked the box indicating that he "dispute[d] issues of fact." He also wrote the following on the form:

I was found guilty of interstate commerce. The credit report that was found in my house belongs to "Tuboson" which was established from handwriting. I have paid a great price for this offense. My wife and children cannot bear more destruction.


On April 4, 1997, the matter was referred to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct the "formal hearing" Respondent had requested.

On June 20, 1997, the undersigned issued a notice advising the parties that the hearing in this case would be held by video teleconference (at sites in Miami and Tallahassee, Florida) on July 8, 1997. On July 7, 1997, the Division filed a motion requesting that "an order be entered relinquishing jurisdiction in this cause to the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco for the purpose of scheduling a 120.57(2) hearing." In its motion, the

Division argued that "[t]he only fact material to a violation of Section 561.15(2), Florida Statutes, is whether Respondent has been convicted within the last past 15 years of a felony against the United States" and that "[t]his fact [wa]s clearly established by Exhibits 'A' and 'B'" appended to the motion.

Exhibit "A" was a certified copy of the judgment of conviction entered in United States of America v. Jack Hope, United States District Court for the Southern District of Florida Case Number 94-152-CR-HIGHSMITH. The judgment of conviction reflected that, on August 10, 1994, based upon a guilty plea, the defendant in that case, Jack Hope, was adjudicated guilty of violating 18

      1. Section 1029(a)(3), placed on probation for a period of three years, fined $500.00, and directed to pay a special assessment in the amount of $50.00. Exhibit "B" consisted of certified copies of materials concerning Respondent's licensure on file with the Division. The Division pointed out in its motion that "[t]he name [Jack Hope] and date of birth [July 25, 1945] on both Exhibits 'A' and 'B' are identical."

        On July 8, 1997, at the outset of the final hearing in the instant case, Respondent (who was appearing pro se) requested that the hearing be continued. During a discussion on the requested continuance, which the Division opposed, Respondent indicated that he was not disputing that he had been convicted of violating 18 U.S.C. Section 1029(a)(3) in United States District Court for the Southern District of Florida Case Number 94-152-CR-

        HIGHSMITH, as alleged in the Administrative Action. After hearing argument on the matter, the undersigned granted Respondent's request for a continuance and further declared that "[a]ny written response to Petitioner's Motion to Relinquish Jurisdiction that Respondent desires to file shall be filed no later than July 22, 1997."

        On July 22, 1997, Respondent, through newly retained counsel, filed a written response to the Division's Motion to Relinquish Jurisdiction. In his written response, Respondent contended that the Division's "motion should be denied because [Respondent] intends to raise factual issues that require a formal administrative hearing." These "factual issues," Respondent explained in his written response, concerned the "nature of the criminal proceeding" referenced in the Administrative Action and Respondent's claim that the Division is barred from revoking his license by the doctrines of equitable estoppel and laches. The body of Respondent's response read as follows (with case citations and statutory references, as well as accompanying parentheticals, omitted):

        Respondent, Jack Hope, responds to Petitioner's Motion Relinquish Jurisdiction, as follows:


        1. This is an administrative proceeding to review the attempt by the Department of Business and Professional Regulation ("Department") to revoke Mr. Hope's beverage and tobacco licenses.


        2. Mr. Hope applied for these licenses in the spring of 1996. On his application, he

          clearly disclosed that he was placed on probation for three years in a federal court criminal proceeding in which he was charged with allegedly having possession of an unauthorized credit card machine. Mr. Hope did not receive any prison time in that proceeding. Rather, he was ordered to pay

          $50 and he was placed on three year[s] probation.


        3. Mr. Hope disclosed this fact on his application on a separate sheet of paper that is not attached to the Department's motion to relinquish jurisdiction. He also told the Department clerk who took the application. The Department clerk affirmatively represented to him that the prior criminal proceeding would not be a problem for his application.


        4. Despite the fact that the Department had full knowledge of the prior proceeding, the Department approved his application and gave Mr. Hope a beverage and tobacco license. In reliance upon the Department's representation, Mr. Hope paid the licensure fee and invested his money into his business, based upon the knowledge that he had a beverage and tobacco license.


        5. Almost one year after approving the license, the Department is attempting to revoke the license, claiming that the criminal proceeding constitutes grounds for revocation. Mr. Hope informed the Department that he disputed the allegations and timely requested a formal hearing on the Department's decision.


        6. At the video telephone conference held on July 8, 1997, Mr. Hope, appearing without counsel, stated the facts outline[d] above. The Administrative Law Judge recommended that Mr. Hope obtain counsel and entered an order requiring Mr. Hope to respond to the motion to relinquish jurisdiction by July 22, 1997.


        7. The Department's motion should be denied because Mr. Hope intends to raise factual

          issues that require a formal administrative hearing.


        8. In considering this proceeding, it is important to remember that, in order to justify revocation of a business license, the Department is required to demonstrate grounds for the revocation by clear and convincing evidence. Moreover, because [business] license disciplinary statutes are penal in nature, they must be construed strictly, with any ambiguities in the statute resolved in favor of the licensee.


        9. The Florida statutes provide that a person whose substantial interests are affected by agency action is entitled to a formal hearing before an administrative law judge whe[re] the proceeding involves a disputed issue of material fact. It is an abuse of discretion for a petitioner to be denied a formal hearing, where there are disputed issues.


        10. Mr. Hope intends to raise, and requests permission to raise, the following issues in his [defense]:


          Nature of the criminal proceeding.


        11. The statute permits revocation only if the Department shows that Mr. Hope's conviction was a felony conviction. Here, although the relevant statute authorizes penalties of more than one year imprisonment, Mr. Hope was only charged with a technical violation of possession of an unauthorized credit card machine. The standard sentence for such a violation is less than one year. For that reason, Mr. Hope's conviction should not be considered a felony.

          Equitable Estoppel


        12. The caselaw provides that the doctrine of equitable estoppel applies in administrative proceedings. Equitable estoppel is shown whenever affirmative conduct or representations by a government official upon which a citizen relies will

          cause a serious injustice and application of the doctrine will not unduly harm the public interest.


        13. The Florida courts have found that, where a licensee detrimentally relied upon a representation by an agency representative that the licensee fulfilled the requirements of the licens[ing statute], the agency may be equitably estopped from later revoking the license.


        14. In the present case, Mr. Hope disclosed the prior criminal proceeding to the agency. An agency representative speci[fic]ally represented to him that it would not be a problem. In reliance upon this representation, he paid the license fee and invested his money in opening the business. The public harm will not be unduly affected because the conviction was a technical offense, for which he was not guilty, but rather pl[ed] no contest to avoid a lengthy proceeding.

          Laches


        15. Florida law provides that the doctrine of laches applies in administrative proceedings. Here, the Department delayed in taking any action against Mr. Hope's license. In these circumstances, the Department's actions may be barred by the doctrine of laches.


        16. Because Mr. Hope has valid defenses to the revocation, the Florida Statutes provide that he is entitled to a formal hearing before an Administrative Law Judge.


WHEREFORE, [Respondent] Jack Hope respectfully requests that the Administrative Law Judge deny the Department's Motion to Relinquish Jurisdiction, grant [Respondent] permission to amend his petition to include the issues raised in this Response, reschedule the formal hearing, and grant such further relief as appropriate.

On July 23, 1997, the undersigned entered an order in which he issued the following directive:

No later than August 4, 1997, [the Division] shall advise the undersigned in writing as to whether, in light of the "factual issues" raised in Respondent's written response, [the Division] still takes the position that there is no need for a Section 120.57(1) hearing in the instant case and, if so, the basis for its position that such a hearing is not necessary.

The Division filed its response to the undersigned's July 23, 1997 order on July 29, 1997. In its response, the Division maintained that a Section 120.57(1) hearing is not necessary in the instant case because there are no disputed issues of material fact.

It appears that the Division is correct. Respondent does not dispute that, in August of 1994, he was convicted of violating 18 U.S.C. Section 1029(a)(3), as alleged in the Administrative Action. Whether this crime constituted a "felony," within the meaning of Section 561.15(2), Florida Statutes, is a legal issue, the resolution of which does not require any fact-finding. In deciding this question, the Division need only review the provisions of 18 U.S.C. Section 1029 which prescribe the punishment that may be imposed for violations of the statute, in conjunction with the provisions 18

U.S.C Section 3559 which classify federal offenses as either felonies, misdemeanors, or infractions depending upon "the maximum term of imprisonment authorized." It is unnecessary for

the Division to ascertain the punishment Respondent actually received or that which is "standard" for a violation of 18 U.S.C. Section 1029(a)(3). These matters are immaterial. Cf. Griffin v. State, 217 So. 2d 893, 895 (Fla. 4th DCA 1969)("The

definition [of a felony set forth in Section 775.08, Florida Statutes (1959), to wit: 'Any crime punishable by death, or imprisonment in the state prison'] does not hinge on what punishment is actually given, but what punishment is authorized.").

While Respondent has raised the affirmative defenses of equitable estoppel and laches, the Division has not disputed any of the factual assertions that Respondent has made in connection with these defenses, nor has it alleged the existence of additional facts germane to these defenses. Moreover, it appears that these undsputed facts alleged by Respondent are insufficient to justify invocation of either the doctrine of equitable estoppel or the doctrine of laches.

The fact that the Division knew or should have known of Respondent's 1994 conviction at the time it granted Respondent's application for licensure does not estop the Division from now seeking to revoke his license based upon this conviction. See Donaldson v. Department of Health and Rehabilitative Services,

425 So. 2d 145, 147 (Fla. 1st DCA 1983)("[W]e find without merit appellant's argument that the Department's issuance of a license [to sell hearing aids] to appellant during the pendency of

administrative proceedings through its own administrative error amounted to a 'ratification' of appellant's unlawful conduct."); Cirnigliaro v. Florida Police Standards and Training Commission,

409 So. 2d 80 (Fla. 1st DCA 1982)(Florida Police Standards and Training Commission not barred from revoking police officer's certificate based upon officer's pre-certification federal conviction that officer had disclosed to sponsoring law enforcement agency and that sponsoring law enforcement agency, during pre-certification conversation, had made known to Commission); Section 561.15(3), Florida Statutes. Neither is the Division estopped from taking such action by virtue of the fact that a Division employee expressed the opinion to Respondent, upon receipt of his licensure application, that "the conviction would not be a problem for his application." See Department of Revenue v. Anderson, 403 So. 2d 397, 400 (Fla. 1983)("As a general rule, equitable estoppel will be applied against the state only in rare instances and under exceptional circumstances. . . . Another general rule is that the state cannot be estopped through mistaken statements of the law. . . .

In order to demonstrate estoppel, [it must] be shown [among other things, that there has been] a representation as to a material fact that is contrary to a later asserted position. ");

Cordes v. Department of Environmental Regulation, 582 So. 2d 652, 654-55 (Fla. 1st DCA 1991)("[E]ven if such representation were made, it would have amounted to a mistaken statement of law that

could not be used as a basis for applying the principle of equitable estoppel against the Department under the circumstances of this case."); Reedy Creek Improvement District v. Department of Environmental Regulation, 486 So. 2d 642, 647 (Fla. 1st DCA 1986)("Equitable estoppel will apply against a state agency, however, only upon a showing of exceptional circumstances. . . .

And, it is fundamental that the doctrine of estoppel will not apply to 'transactions that are forbidden by statute or that are contrary to public policy.'"); Cirnigliaro v. Florida Police Standards and Training Commission, 409 So. 2d 80, 84-85 (Fla. 1st DCA 1982)("In any event, it has been held that '(a)dministrative officers of the state cannot estop the state through mistaken statements of law;' . . . and a mistaken conclusion as to the nature of the conviction and whether it involves moral turpitude would not preclude the Commission from revoking appellant's certificate.").

With respect to Respondent's laches defense, "[i]t is well established that mere lapse of time does not in itself constitute laches." Wiggins v. Lykes Bros., Inc., 97 So. 2d 273, 275 (Fla. 1957). "Prejudice to one's defense by reason of the delay is required." Gordon v. Savage, 383 So. 2d 646, 649 (Fla. 5th DCA 1980). In the instant case, Respondent has failed to allege facts establishing "[p]rejudice to [his] defense by reason of the [the Division's prosecutorial] delay." Accordingly, even if laches is available to licensees as a possible defense in a

Section 561.15 license revocation proceeding, 1/ the allegations made by Respondent are insufficient to establish the applicability of the doctrine to the particular facts of the instant case.

Because there are no remaining disputed issues of material fact in this case, the Division's Motion to Relinquish Jurisdiction is granted and the instant matter is returned to the Division for proceedings pursuant to Section 120.57(2), Florida Statutes. See McGraw v. Department of State, Division of Licensing, 491 So. 2d 1193, 1195 (Fla. 1st DCA 1986)(where private investigator admitted he had been found guilty of crime of witness tampering as alleged in administrative complaint issued by agency, which sought revocation of investigator's license based upon such finding of guilt, agency did not err in denying investigator's request for Section 120.57(1) hearing; in so ruling, appellate court stated: "To the extent that appellant sought to relitigate the question of his guilt regarding the subject offense, such is improper. To the extent that appellant's petition for hearing sought to present mitigation, an informal hearing under Section 120.57(2), would have provided a forum more than adequate for such purpose."); Magnolias Nursing and Convalescent Center v. Department of Health and Rehabilitative Services, 438 So. 2d 421, 424 (Fla. 1st DCA 1983)("Once it appeared that there were disputed issues of fact, which necessarily was the case after Magnolias's failure to

answer the request for admissions, and failure to timely respond to the hearing officer's show cause order, there was no necessity for a formal hearing.").

DONE AND ENTERED this 6th day of August, 1997, in Tallahassee, Leon County, Florida.


STUART M. LERNER

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 6th day of August, 1997.


ENDNOTE


1/ Contrast Ong v. Department of Professional Regulation, 565 So. 2d 1384, 1386 (Fla. 5th DCA 1990)("Possible application of the equitable principle of laches in disciplinary proceedings has been recognized in Florida [in the case of] The Florida Bar v.

McCain, 361 So. 2d 700 (Fla. 1978). Subsequent to McCain, this court in dicta recognized a defense based on delay in a case involving proceedings to suspend or revoke a dentistry license. Gordon v. Savage, 383 So. 2d 646 (Fla. 5th DCA), rev. denied, 389 So. 2d 1110 (Fla. 1980).") with Farzad v. Department of Professional Regulation, 443 So. 2d 373, 375-76 (Fla. 1st DCA 1983)("Having found that the statute of limitations is not applicable, we are persuaded that the parallel concept, the doctrine of laches, usually utilized in equitable proceedings, is similarly inapplicable to this administrative license revocation proceeding. On this issue we follow the line of authority reflected in the collection of cases discussing the applicability of the statute of limitations or doctrine of laches to a proceeding to revoke a license to practice medicine found in the Annotation, 63 A.L.R. 2d 1080 (1959).").

COPIES FURNISHED:


James D. Martin, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007


Jack Hope

13180 Northwest 7th Avenue Miami, Florida 33168


David T. Azrin, Esquire Courthouse Tower

44 West Flagler Street, Suite 2550 Miami, Florida 33130


Docket for Case No: 97-001678
Issue Date Proceedings
Jul. 15, 2004 Final Order filed.
Oct. 06, 1997 Respondent`s Hearing Statement filed.
Oct. 02, 1997 DCA case no. 3-97-2478. filed.
Aug. 29, 1997 Notice of Appeal filed.
Aug. 06, 1997 Recommended Order (hearing held , 2013). CASE CLOSED.
Aug. 06, 1997 Order Relinquishing Jurisdiction sent out. CASE CLOSED.
Jul. 29, 1997 (Petitioner) Response to Order filed.
Jul. 23, 1997 Order sent out. (Petitioner to respond by 8/4/97; re: motion to relinquish jurisdiction)
Jul. 22, 1997 (Respondent) Response to Motion to Relinquish Jurisdiction (filed via facsimile).
Jul. 18, 1997 (From D. Azrin) Notice of Appearance filed.
Jul. 09, 1997 Order sent out. (Respondent`s request for continuance is granted; hearing cancelled; respondent to file any responses by 7/22/97)
Jul. 08, 1997 CASE STATUS: video final hearing continued.
Jul. 07, 1997 (Petitioner) Notice of Intent to Participate in Video Teleconference (filed via facsimile).
Jul. 07, 1997 (Petitioner) Motion to Relinquish Jurisdiction filed.
Jun. 20, 1997 Notice of Hearing by Video Teleconference sent out. (Video Final Hearing set for 7/8/97; 1:00pm; Miami & Tallahassee)
Jun. 18, 1997 (Petitioner) Response to Order (filed via facsimile).
Jun. 03, 1997 Order Granting Continuance sent out. (hearing cancelled; parties to file unavailable hearing dates within 7 days)
Jun. 02, 1997 (Petitioner) Motion for Continuance (filed via facsimile).
May 06, 1997 Notice of Hearing by Video Teleconference sent out. (Video Final Hearing set for 6/10/97; 9:15am; Miami & Tallahassee)
Apr. 25, 1997 (Petitioner) Response to Initial Order filed.
Apr. 14, 1997 Initial Order issued.
Apr. 04, 1997 Agency referral letter; Request for Hearing Form; Administrative Action filed.

Orders for Case No: 97-001678
Issue Date Document Summary
Aug. 06, 1997 Recommended Order Jurisdiction relinquished to Division of Alcoholic Beverages and Tobacco (DABT) where licensee admitted to criminal conviction that DABT alleged disqualified him from licensure.
Source:  Florida - Division of Administrative Hearings

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