STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RALPH KING, SR., d/b/a KING'S ) RESTAURANT AND LOUNGE, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1518

)

DIVISION OF BEVERAGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated hearing officer, K. N. Ayers, held a public hearing in the above styled cause on September 10, 1975 at Miami, Florida.

APPEARANCES

For Petitioner: Harden King, Esquire

1057 North West 79th Street Miami, Florida

and

Isiah Bruce King, Esquire 1400 Calumet

Houston, Texas

For Respondent: Charles Tunnicliff, Esquire

Department of Business Regulation Johns Building

Tallahassee, Florida

By this application, Ralph King, Sr., d/b/a King's Restaurant and Lounge, seeks a new beverage license to sell alcoholic beverages at 950 North Davis Parkway, Florida City, Florida in conjunction with the restaurant. The application was denied by the Director, Division of Beverage by reason of failure to submit health department and zoning approval.

At the hearing applicant produced a certificate from the State Board of Health to show Health Department approval for the proposed site, leaving only the question of zoning approval as required by 562.45(2), Florida Statutes.

Thereafter applicant produced documentary evidence to show that the property is zoned industrial (zng 70) and land use as amusement (use 15)(Exhibit 6).

Applicant and Isiah Bruce King purchased the property in question on November 15, 1973 (Exhibit 5) from the former owners.

The site was formerly licensed as the Top Cat's Club and the licensee was

T. C. Ford. Ford sold the furniture, equipment, and license to Margaret King. Subsequent thereto the restaurant license was shown in the name of Ralph King, but the Division of Beverages was never solicited to transfer the beverage

license. Following a hearing on September 3, 1972 at which the examiner found violations of statutes and regulation, to wit: allowing minors to play pool on licensed premises in violation of s. 849.06 F.S.; failing to transfer license in violation of rule 7A-3.17FAC; failure to disclose names of interested parties in violation of s. 561.17 F.S.; and allowing minors to consume alcoholic beverages on the premises in violation of s. 562.111(1); the license was revoked without prejudiced to the location by the Division of Beverage.

After purchasing the property, King submitted the instant application. The City of Florida City refused to issue the required zoning permit and an action of mandamus was instituted in the circuit court in and for Dade County against Florida City. At the mandamus proceeding the court found that

"the use of said premises as a restaurant-lounge is a nuisance within

a meaning of s. 11, Master Zoning Code of the City of Florida City, Florida, and a menace to the life and property of the citizens of Florida City, Florida, law enforcement agencies, and the patrons of said establishment. The court further finds that petitioner, Ralph King was previously licensed to operate said cafe prior to it being closed by the State Beverage Department; and that, Isiah King, Ralph King, and Adolph King, a former operator, are brothers."

On appeal to the District Court of Appeal Third District, that court on January 28, 1975, in a pro curium opinion held that the petitioners failed to show on this appeal that they were, under the facts found, entitled to a writ and affirmed the judgment of the Circuit Court.

Ralph King, Sr. has operated under a Beverage Department License at the Tropicana on 1057 N.W. 79th Street in Miami, since 1967. The evidence submitted is clear that no zoning change on the property in question has been instituted by the City of Florida City since the time the property was previously operated as the Top Cat's Club. Section 11 of the Florida City zoning code was not admitted into evidence.

From the foregoing the hearing officer finds the zoning authorities have refused to issue the required permit for the operation of the proposed restaurant and lounge, and this refusal has been affirmed in the courts of Dade County. In accordance with s. 562.45(2) F.S., the zoning of the property is a matter wholly within the discretion of the municipality. In the absence of a zoning permit from the City, the application must be denied. It is therefore,

RECOMMENDED that the application be denied.

DONE and ORDERED this 29th day of September, 1975 in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Harden King, Esquire Isiah Bruce King, Esquire

Charles Tunnicliff, Esquire

Docket for Case No: 75-001518

Orders for Case No: 75-001518