STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID JECKSOVICH,

Petitioner,

vs.

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

Respondent.

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) Case No. 05-1457

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RECOMMENDED ORDER

Notice was provided and on May 24, 2005, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes (2004). The hearing location was the Offices of the Division of Administrative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. The hearing was held before Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: No appearance

For Respondent: Michael J. Wheeler, Esquire

Department of Business and Professional Regulation

Northwood Centre, Suite 6 1940 North Monroe Street

Tallahassee, Florida 32399-2202

STATEMENT OF THE ISSUE

Is Petitioner entitled to the issuance of an alcoholic beverage license made available by the January 6, 1993, Quota License Drawing, Log No. 69-98 (the Drawing)?

PRELIMINARY STATEMENT

On December 10, 2004, Respondent denied Petitioner's application for issuance of alcoholic beverage license made available by the Drawing. Having denied the application, Respondent notified Petitioner of his right to a hearing to contest that preliminary decision. Consistent with that opportunity Petitioner, through Horace A. Moody, President, Beverage Law Institute, Inc., requested a formal hearing. That request was pursuant to Section 120.57(1), Florida Statutes (2004). The request was made December 29, 2004.

On April 19, 2005, the case was forwarded to the Division of Administrative Hearings (DOAH) for the assignment of an administrative law judge to conduct a hearing pursuant to Section 120.57(1), Florida Statutes (2004), to resolve the dispute between the parties concerning the license application.

The case was assigned to Suzanne F. Hood, Administrative Law Judge. It was assigned as DOAH Case No. 05-1457. The case was scheduled for hearing on May 24, 2005.

A request was made by Horace A. Moody to withdraw his participation in the case. On May 6, 2005, an order was entered by Administrative Law Judge Hood granting that request.

The case was reassigned to the undersigned.

Notwithstanding Petitioner's failure to attend the hearing to establish his entitlement to the alcoholic beverage license as contemplated by Section 120.57(1)(b), Florida Statutes (2004), and the need for Petitioner to establish that entitlement upon a preponderance of the evidence, Section 120.57(1)(j), Florida Statutes (2004), as the party bearing the burden of proof, Respondent chose to proceed with its case in Petitioner's absence. In support of its case Respondent had admitted Exhibits numbered R-A through R-D.

No hearing transcript was prepared. Proposed findings of fact and an order were submitted by Respondent, as allowed by Section 120.57(1)(b), Florida Statutes (2004), and have been considered in preparing the Recommended Order.

FINDINGS OF FACT

1. On September 27, 2004, Petitioner under the trade name Warehouse Liquors, Etc., made an application for issuance of an alcoholic beverage license made available by the Drawing.

2. On December 10, 2004, Respondent notified Petitioner that the license application had been denied leading to the formal hearing.

3. At hearing it was revealed that Respondent had refused to issue the license under consideration based upon authority set forth in Subsection 561.15(3)(a), Florida Statutes (2004), which states:

   The Division may . . . refuse to issue a license under the Beverage Law to:

   
   

   1. Any person . . . the license of which under the Beverage Law has been revoked. . . after written notice that revocation . . . had been . . . brought against the license.

      
      

4. The statutory authority cited above has pertinence in relation to the case Department of Business and Professional

   Regulation, Division of Alcoholic Beverages and Tobacco, Petitioner v. Cadillac Jack's Saloon, Inc., d/b/a Cadillac Jack's Saloon, Respondent, Case No. RK15930196A, wherein by amended final order the Respondent's alcoholic license No. 15- 00435, Series 4COP was revoked effective January 17, 1995. That revocation was without prejudice for the named Respondent to apply for another license "contingent upon the filing of all outstanding reports; payments of all outstanding payments of surcharge principal; payment of all outstanding late penalty fees and interest; and, provided Respondent is otherwise qualified to hold said license."

5. Although the amended final order in Case No.

   
   

   RK15930196A contemplated the possibility that application could be made for another license, that opportunity was conditioned

   upon the Respondent being otherwise qualified to hold the new license.

6. Proof at hearing indicated that Petitioner in this cause was the license holder for license No. 15-00435, Series 4- COP.

7. As a prior license holder, Petitioner made the present application for a new beverage license. In the present application, the question was asked, "Have you ever had any type of alcoholic beverage, or bottle club license, or cigarette, or tobacco permit refused, revoked or suspended anywhere in the past 15 years?" Petitioner answered that question in the negative. That answer was untrue given the circumstances in relation to action revoking alcoholic license No. 15-00435, Series 4-COP. This implicated consideration of whether Petitioner had the necessary qualifications in relation to good moral character as required by Subsection 561.15(1), Florida Statutes (2004), as a condition to issuing the present license in dispute. The untrue response made to the question in the application for the present license demonstrates that Petitioner is without the necessary good moral character.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this

   case in accordance with Sections 120.569 and 120.57(1), Florida Statutes (2004).

9. Petitioner has applied for an alcoholic beverage license. The application was denied. As the party seeking relief, Petitioner must present affirmative proof to achieve that relief. Florida Department of Transportation v. J.W.C.

   Co., 396 So. 2d 778 (Fla 1st DCA 1981). Petitioner must prove the entitlement to the beverage license by a preponderance of evidence as required by Section 120.57(1)(j), Florida Statutes (2004).

10. Petitioner did not attend the hearing to present proof of his entitlement to the alcoholic beverage license. In his absence, Respondent chose to present a case to explain the reasons why Respondent had not received the beverage license.

11. Proof at hearing revealed that Petitioner was the license holder for the license issued to Cadillac Jack's Saloon, Inc., alcoholic license No. 15-00435, Series 4-COP, which was revoked in Case No. RK15930196A. With that revocation, Respondent in this cause, by law, would have the right to refuse to issue the present license, Petitioner having had the prior license revoked. Authority for Respondent in this cause to deny the present license is found within Section 561.15(3)(a), Florida Statutes (2004), which has been referred to earlier. However, the amended final order in Case No. RK15930196A granted

    the opportunity for the present Petitioner to apply for another license, provided that the present Petitioner was otherwise qualified. He is not otherwise qualified because he lacks the necessary good moral character incumbent upon persons who seek to obtain a license issued under the Beverage Law. On this occasion in relation to the alcoholic beverage license made available by the Drawing, Petitioner applied for another license. Section 561.15(1), Florida Statutes (2004), explains the necessity for good moral character as a precondition to licensure wherein it is stated, "Licenses shall be issued only to persons of good moral character. . . ." Petitioner does not have the requisite good moral character because he lied on his application for license by denying the prior license discipline in Case No. RK15930196A.

12. Without the necessary good moral character, Petitioner is not entitled to the issuance of the new alcoholic beverage license.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a Final Order be issued denying Petitioner's application for issuance of the alcoholic beverage license made available by the Drawing.

DONE AND ENTERED this 23rd day of June, 2005, in

Tallahassee, Leon County, Florida.

S

CHARLES C. ADAMS

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 23rd day of June, 2005.

COPIES FURNISHED:

Michael J. Wheeler, Esquire Department of Business and Professional Regulation

Northwood Centre, Suite 6 1940 North Monroe Street

Tallahassee, Florida 32399-2202

David Jecksovich Post Office Box 761

Cornellus, North Carolina 28031

David Jecksovich

66 Mount Desert Street Bar Harbor, Maine 03609

Jack Tuter, Director Division of Alcoholic

Beverages and Tobacco Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Leon Biegalski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 05-001457

Orders for Case No: 05-001457