STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY HARVEY, d/b/a HI NEIGHBOR ) STORE, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1529

) CHARLES A. NUZUM, Director, )

Division of Beverage, Department ) of Business Regulation, State of ) Florida, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, G. Steven Pfeiffer, held a public hearing in this case on August 26, 1975, in Orlando, Florida.

APPEARANCES

For Petitioner: Aaron A. Green

Mickle, Harris, Green & Woolfork Gainesville, Florida

For Respondent: William A. Hatch

Tallahassee, Florida

The Division of Beverage ("Agency" hereafter) filed an administrative complaint against Henry Harvey d/b/a Hi Neighbor Store ("Licensee" hereafter) on May 14, 1975. The complaint is styled "Notice to Show Cause Why Beverage License Should Not Have Civil Penalty Assessed Against it or be Suspended or Revoked".

The substantive charge set out in the Notice to Show Cause, is as follows:

"On or about February 10, 1975 investigation revealed that you, HENRY P. HARVEY, current license holder of License No. 52-207, Series

2-COP, issued to you by the State of Florida for the current license year 1974-1975, did plead guilty to one count of violation, Florida Comprehensive Drug Abuse Prevention and Control

Act and were adjudicated guilty of that offense, contrary to Florida Statutes 561.29 of the Beverage Law."

The final hearing was scheduled in accordance with a separate paragraph of the Notice to Show Cause.

No witnesses were called by either party at the hearing. The Agency offered Agency Exhibit number 1 into evidence. The Licensee objected to introduction of the exhibit on the grounds that the exhibit was not properly authenticated, and constituted inadmissible hearsay. Agency Exhibit number 1 was received into evidence at the hearing subject to the Licensee's objections. The parties have had an opportunity to file legal memoranda respecting the admissibility of Agency Exhibit number 1. In accordance with the Findings of Fact and Conclusions of Law which follow, Agency Exhibit number 1 has been rejected as evidence in this case, and should be given no consideration. The Licensee offered Licensee's Exhibit number 1 into evidence, and it was received. In addition to the exhibits, the Information filed by the State of Florida in Case No. 74-730 in the Circuit Court for the Fifth Judicial Circuit of the State of Florida in and for Marion County Florida has been considered as evidence in this case.

At the hearing the Licensee moved to dismiss on the grounds that the final decision in Division of Beverage Case No. 5-74-13A is dispositive of the issues in this case under the doctrine of res judicata. After the Agency offered its evidence, the Licensee moved to dismiss on the further ground that insufficient proof was offered at the hearing.

The Licensee had filed a declaratory judgment action respecting some of the same issues involved in this case in the Circuit Court in Marion County, Florida. The undersigned deferred further action in this case until that litigation was completed.

The undersigned was advised on March 5, 1976, that the litigation was completed by the Licensee's entering a voluntary dismissal.

FINDINGS OF FACT

1. No evidence was offered at the hearing to establish that the Licensee holds a beverage license issued by the State of Florida, Department of Business Regulation, Division of Beverage.

   It is alleged in the Agency's Notice to Show Cause that the Licensee holds beverage license number 52-207. No issue was raised as to whether the Licensee holds a beverage license. It will be assumed for the purpose of this order that the Licensee holds beverage license number 52-207.

   
   

2. No admissible evidence was offered or received at the hearing to establish that the Licensee has violated any provisions of Florida Statutes s. 561.29 as is alleged in the Notice to Show Cause issued by the Agency.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

   
   

4. Facts which would justify suspension or revocation of a beverage license must be established by substantial competent evidence. Holland v. State Beverage Department, 213 So.2d 310 (1 DCA Fla. 1968); State Beverage Department v. Ernal, Inc., 115 So.2d 566 (3 DCA Fla. 1959). Statutes permitting revocation of occupational licenses are penal in nature, and the agency has the burden of affirmatively establishing that a licensee has committed an act or acts which would justify revocation of the license. Buchman v. State Board of Accountancy, 300 So.2d 671 (Fla. 1974).

   
   

5. The only evidence offered by the Agency at the hearing was Agency Exhibit number 1. Agency Exhibit number 1 appears to be a copy of a clerk's minute entries. The case number on the entry coincides with the case number of an Information which was filed against the Licensee in the Fifth Judicial Circuit Court of the State of Florida, Marion County, Florida. The minute entry is not dated, contains no statement as to what statute or statutes the Licensee may have violated, and contains no statement as to what acts the Licensee committed. A stamp appears on Agency Exhibit number 1 as follows:

   
   

   Certified: A True Copy John F. Nicholson, Clerk By: Frieda N. Mather D.C.

   
   

   Frieda N. Mather is apparently a deputy clerk. Her name appears as a signature. Agency Exhibit number 1 is clearly hearsay. The document contains a statement that Henry Harvey, apparently the Licensee herein, entered a plea pursuant to plea bargaining, and was adjudicated guilty of Count I. There is no statement on the exhibit that it emanated from the Fifth Judicial Circuit of the

   State of Florida in and for Marion County, Florida. It is only a matter of supposition that the case number 74-730, which appears on the exhibit, relates to the Information in case number 74-730 before the Circuit Court for the Fifth Judicial Circuit of the State of Florida, Marion County, Florida.

   
   

6. Hearsay is admissible in an administrative proceeding only if it would be admissible over objection in civil actions, or is offered to supplement or explain other evidence. Florida Statutes s. 120.58(1)(a). Agency Exhibit number 1 was not offered in this case to supplement or explain other evidence. Agency Exhibit number 1 is apparently a copy of a court record. Copies of court records are admissible in evidence in civil cases when authenticated by the attestation of the officer having charge of the records of such court, with the seal of such court annexed. Florida Statutes s. 92.10. A recital by the person attesting that he has charge of such records constitutes prima facie evidence that he has such charge. Id. Agency Exhibit number 1 is not accompanied by the seal of the court, nor by a recital that the attesting party has charge of the records. Agency Exhibit number

   1 would not be admissible in a civil action without further authentication, and is therefore not admissible in evidence in this proceeding. The document should be given no consideration.

   
   

7. Since insufficient evidence was offered by the Agency to justify taking any action against the Licensee, no consideration need be given to the affirmative defense raised by the Licensee based upon the doctrine of res judicata. In the interest of economizing future action in this case, should this Recommended Order not be followed, consideration will be given the defense.

   It cannot be determined from the material submitted at the hearing whether the previous charge made against the Licensee is based upon the same facts involved in the instant matter, or whether the dismissal of the previous matter by the Agency constituted an adjudication of the previous matter on the merits. The doctrine of res judicata would constitute a defense in this case; however, the party relying upon the doctrine has the burden of establishing the defense. Hough v. Menses, 95 So.2d 410 (Fla. 1957); Betts v. Betts, 63 So.2d 302 (Fla. 1953). The Licensee's defense based upon the doctrine of res judicata should fail because of the Licensee's failure to establish facts which would justify invocation of the doctrine.

   
   

8. The Division of Beverage has failed to establish that the Licensee has committed any violation of Florida Statutes s. 561.29; that the Licensee has violated any laws of the State of Florida, or any state or territory of the United States; or that

the Licensee plead guilty to or was convicted of any violation of the laws of the State of Florida, or any state or territory of the United States. This action should therefore be dismissed.

RECOMMENDED ORDER

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

RECOMMENDED:

That the complaint brought by the Division of Beverage against the Licensee, Henry P. Harvey, d/b/a Hi Neighbor Store, which has been designated Case No. 5-75-21A of the Department of Business Regulation, Division of Beverage be dismissed.

RECOMMENDED this 29th day of March, 1976 in Tallahassee, Florida.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Aaron A. Green, Esquire 1441 North West 6th Street Suite D-200

Gainesville, Florida 32601 Capt. Leon Rousseau District Supervisor

William A. Hatch, Esquire Division of Beverage Department of Business Regulation 1300 West Lee Road The Johns Building Orlando, Florida Tallahassee, Florida

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION

DIVISION OF BEVERAGE

HENRY HARVEY, d/b/a HI NEIGHBOR STORE,

Petitioner,

vs. CASE NO. 75-1529

CHARLES A. NUZUM, Director,

Division of Beverage, Department of Business Regulation, State of Florida,

Respondent.

/

FINAL ORDER

COMES NOW the Director of the Division of Beverage, after due consideration of Petitioner's Exceptions to Hearing Examiners Recommended Order and Findings of Fact; after due consideration of the original Findings of Fact, Conclusions of Law and Recommended Order in Case No. 75-1529 and after a careful reading of the transcript of testimony in this case and the attached exhibits, it is hereby Ordered:

1. That a preponderance of the evidence supports Petitioners contention that Henry Harvey was convicted of a felony in Case Number 74-730, in Marion County, Florida, in violation of Florida Statutes 561.29, of the Beverage Laws.

   
   

2. Florida Statutes 561.15, prohibits a convicted felon from obtaining a beverage license within the State of Florida and grants the Division of Beverage the authority to revoke any license issued to any person prohibited from originally obtaining such license under the beverages law.

3. It is hereby Order that License Number 52-207, Series 2- COP, issued to Henry P,. Harvey, t/a Hi Neighbor Store, 1951 S.W. Broadway Street, Ocala, Florida is revoked.

DONE AND ORDERED this 4th day of August, 1976, in Tallahassee, Florida

Charles A. Nuzum Director

Division of Beverages

Department of Business Regulation State of Florida

Copies furnished to:

Aaron A. Green, Esquire 1441 North West 6th Street Suite D-200

Gainesville, Florida 32601

William A. Hatch, Esquire Department of Business Regulation The Johns Building

Tallahassee, Florida

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA JANUARY TERM, A. D. 1977

HENRY HARVEY, d/b/a HI NOT FILAN UNTIL TIME EXPIRES NEIGHBOR STORE, TO FILE REHEARING PEITITION AND

DISPOSITION THEREOF IF FILED.

Petitioner,

CASE NO. DD-239

vs. DOAH CASE NO. 75-1529

CHARLES A. NUZUM, Director,

Division of Beverage, Department of Business Regulation, State of Florida,

Respondent.

/ Opinion filed May 20, 1977.

Petition for review of Final Order of the Division of Beverage - Original Juristiction

Aaron A. Green for Petitioner. William A. Hatch for Respondent.

RAWLS, Acting Chief Judge

Petitioner Harvey seeks review of a final order of the Division of Beverage (division) revoking his beverage license.

On May 14, 1975, the division filed an administrative complaint against Harvey, alleging that he had earlier pled guilty to one count of a drug violation, had been adjudicated guilty of same, and such conduct was grounds for revoking his license pursuant to Section 561.29 of the beverage laws.

A hearing was held by the Division of Administrative Hearings. On March 29, 1976, the hearing officer published his recommended order that the administrative complaint against Harvey be dismissed. In support of this recommendation, the hearing officer found that the division had failed to present any admissible evidence that Harvey had violated any provision of Section 561.20, Florida Statutes, and that it also failed to offer evidence that Harvey even held a beverage license issued by the State.

On August 4, 1976, notwithstanding the recommended order of the hearing officer, the division revoked Harvey's beverage license. Without stating any specific findings of fact to refute those of the hearing officer, the division found that "a preponderance of the evidence supports Petitioner's [Division] contention that Henry Harvey was convicted of a felony in Case No. 74-730, in Marion County, Florida, in violation of Florida Statutes 561.29 of the Beverage Laws".

Harvey first argues that the Division's final order was devoid of the specific factual recitations required by statute when an agency has rejected the recommended order of a hearing officer. We agree.

Section 120.57(1)(9), Florida Statutes (1975), states that an agency in its final order:

" ... may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law."

In Powell v. Board of Public Instruction of Levy Co., 229 So.2d 308 (Fla. 1st DCA 1969), this court stated:

"It has been held that a final order of a county school board terminating a teacher's contract of employment which is couched in such general language as to amount to nothing more than a 'verdict of guilty as charged' is insufficient. Due process as well as the requirements of the Administrative Pro- cedure Act dictates that the agency's final action

be reduced to writing, contain findings of fact based upon the evidence adduced at the hearing, and

specifically state the charges which the agency finds to have been sustained ... "

And, as this court in Gentry v. Department of Professional and Occupational Regulations, 283 So.2d 386 (Fla. 1st DCA 1973), stated:

"It has been repeatedly held by the courts of this state that in order to assure due process and equal protection of the laws, every final order entered by an administrative agency in the exercise of its

quasi-judicial functions must contain specific findings of fact upon which its ultimate action is taken. An administrative order which fails to contain such findings is ineffectual as a predicate for the order sought to be enforced."

Here, the division rejected the findings of fact found in the hearing officer's recommended order without stating "with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law." Such action of the division fails to comport with the requirements of due process, the Administrative Procedure Act and Florida case law, and, as such, is fatally defective. See also Edwards v. Division of Beverage, 278 So.2d 659 (Fla. 1st DCA 1973).

Although remand with instructions requiring a more specific order is customary in cases in which an agency fails to comply with the provisions of Section 120.59(1)(9), Florida Statutes, a review of the record in the instant case shows that the division's order was not supported by competent substantial evidence, and it is, therefore, quashed.

Last, Harvey petitions for an award of attorney's fees and costs pursuant to Section 120.57(1)(b)(9), Florida Statutes, contending that the division's bad faith or malice has been demonstrated by its deliberate failure to comply with the 90-day statutory time limitation and its failure to state specific findings of fact and conclusions of law in the final order.

Although the division exhibited a degree of carelessness in its compliance with the requirements of Chapter 120, the record before this court does not demonstrate either bad faith or malice on its part, and thus this point is without merit. Bryan v. Department of Business Regulation, 316 So.2d 637 (Fla. 1st DCA 1975).

The petition for review of final agency action is granted, and the final order of the Division of Beverage revoking Harvey's beverage license is quashed.

SMITH and ERVIN, JJ., CONCUR

Docket for Case No: 75-001529

Orders for Case No: 75-001529