STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

) GEORGE LOPEZ, d/b/a SMILEY'S, )

)

Respondent. )

Case No. 01-1306

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on June 5, 2001, by means of video technology in Tallahassee and Daytona Beach, Florida, before Don W. Davis, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael Martinez, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-1007

For Respondent: Paul Kwilecki, Jr., Esquire

629 North Peninsula Drive Daytona Beach, Florida 32118

STATEMENT OF THE ISSUE

Whether Respondent's plea of nolo contendere to the crime of possession of a controlled substance (for which adjudication was withheld) is sufficient to support the imposition of discipline with regard to his alcoholic beverage license.

PRELIMINARY STATEMENT

By Administrative Action issued March 5, 2001, Petitioner charged Respondent with pleading guilty to the offense of possession of a controlled substance, to-wit: Cocaine.

Petitioner's Administrative Action also noticed Respondent that Petitioner contemplated imposition of sanctions against Respondent's beverage license on the grounds that Respondent was not believed to be of good moral character.

Respondent timely challenged the proposed action. The matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the final hearing, Petitioner's motion to have the request for admissions deemed admitted, pursuant to Florida Rule of Civil Procedure 1.370, was granted, along with admission of three other exhibits. Respondent testified in his own behalf and submitted two exhibits.

A Transcript of the proceeding was filed on June 27, 2001. Both parties filed Proposed Recommended Orders, which have been

duly considered by the undersigned in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to issue beverage licenses pursuant to Chapter 561, Florida Statutes, and applicable rules.

2. Prior to September 11, 2000, Respondent, doing business as Smiley's, was the owner and holder of a beverage license, DBPR License No. 74-05336, Series 2-COP, which permits him to sell beer and wine for consumption on premises.

3. On October 9, 1998, Respondent was charged by information with sale and delivery of cocaine. He was acquitted of that charge on May 12, 2000.

4. Subsequently in a separate incident, Respondent was charged with possession of cocaine and on September 11, 2000, pleaded no contest to that charge.

5. Pursuant to Respondent's timely request for formal proceedings, Petitioner's counsel initiated discovery in the course of this administrative proceeding through a Request for Admissions to which Respondent failed to respond. Respondent failed to provide a satisfactory explanation for this circumstance and, upon motion of Petitioner, the Request for Admissions was deemed admitted. Those admissions establish that

   Respondent entered a no contest plea on September 11, 2000, to the charge of possession of cocaine and that the plea bargain negotiated at that time also included two days' incarceration. Additionally, the admissions establish that Respondent is aware that possession of cocaine is a crime punishable by imprisonment for a term of five years.

6. Respondent's own testimony is uncorroborated by other direct evidence and fails to establish that he possesses good moral character.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. Section 120.57(1), Florida Statutes.

8. Section 561.15(1), Florida Statutes, provides that Petitioner shall allow beverage licenses only to persons of good moral character who are not less than 21 years of age.

9. Rule 61A-1.017, Florida Administrative Code, provides, in pertinent part, the following pertaining to moral character:

   1. For purposes of the Beverage Law, a person of "good moral character" shall mean a person who:

      1. Has the ability to distinguish between right and wrong and the character to observe the difference;

      2. Observes the rules of right conduct; and

      3. Acts in a manner that indicates and establishes the qualities of trust and confidence that is generally acceptable to the state.

   2. 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 within the last 15 years.

         
         

10. Petitioner established clearly and convincingly that it was within its discretion to impose discipline upon Respondent's beverage license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order revoking Respondent's alcoholic beverage license, DBPR License No. 74-05336, Series 2-COP.

DONE AND ENTERED this 30th day of July, 2001, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2001.

COPIES FURNISHED:

Paul Kwilecki, Jr., Esquire 629 North Peninsula Drive Daytona Beach, Florida 32118

Michael Martinez, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-1007

Lt. John P. Szabo Department of Business and

Professional Regulation

400 West Robinson Street, Room 709 Orlando, Florida 32801

Richard Turner, Director Division of Alcoholic Beverages

and Tobacco

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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: 01-001306

Orders for Case No: 01-001306