STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BUENAVENTURA LAKES COUNTRY CLUB, ) INC., )

)

Petitioner, )

)

vs. ) CASE NO. 75-1781

)

STATE OF FLORIDA, )

DIVISION OF BEVERAGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to proper notice, an administrative hearing was held before Charles C. Adams, Hearing Officer, Division of Administrative Hearings, on October 21, 1975, at 1300 West Lee Road, Orlando, Florida.

APPEARANCES

For Petitioner: Norman J. Smith, Esquire

Brinson and Smith, P.A. Post Office Drawer 1549 Kissimmee, Florida 32741

For Respondent: William A. Hatch, Esquire

State of Florida

Department of Business Regulation Division of Beverage

ISSUE

Whether or not the, Respondent, Buenaventura Lakes Country Club, Inc., may be issued Division of Beverage, license number 7-COP-59-2, for use at 301 Buenaventura Boulevard, Kissimmee, Florida.

FINDINGS OF FACT

The Petitioner and Respondent stipulated and agreed to the underlying facts which they deemed to have necessary application in considering the question of the propriety of the Respondent issuing the Division of Beverage, license number 7-COP-59-2 to the Petitioner for use at 301 Buenaventura Boulevard, Kissimmee, Florida. Notwithstanding the lack of dispute in facts surrounding this issue, the Respondent and Petitioner have requested the undersigned to examine those facts and to offer conclusions of law on the dispute.

In the course of the presentation, it was agreed that Mr. Norman J. Smith, attorney for the Petitioner, would be allowed to set forth the factual stipulation for the record. Mr. Smith indicated that the official description of the license was, Division of Beverage, license number 7-COP-59-2. It was

stated that the Petitioner is now a qualified motel and restaurant as set forth in Florida Statute, 561.20, which describes those establishments which would qualify for a "special" beverage license. It was further indicated that when the license in question was issued originally it was not issued to such a qualified hotel, motel or restaurant as set forth in Florida Statute, 561.20, which established the requirements for issuance of a "special" beverage license, and that when the subject license was transferred to the present location, that the motel and restaurant, at the present location, was not such a qualified hotel, motel or restaurant in accordance with Florida Statute, 561.20, which established those requirements for issuance of a "special" beverage license.

However, as of October 21, 1975, and as of the application date for license transfer, filed by the Petitioner, by improvements and physical changes to the edifice, (location where the license currently is housed), would meet the definitional requirements of Florida Statute, 561.20, which sets forth the qualifications for "special" beverage licenses to be issued to a hotel, motel or restaurant. This qualification referred to as of October 21, 1975, and as of the date of application, applies to the section on hotels/motels and restaurants. That is to say the establishment would qualify under the standards for a hotel/motel or under the standards for a restaurant.

It was further established that the application which was filed by the Petitioner was duly filed with the Division of Beverage upon form, DBR-704L, which is the application for the transfer of an alcoholic beverage license in this type request.

Mr. Smith stated that the Petitioner understood that the letter of August 21, 1975, from the Director of the Division of Beverage, addressed to the Petitioner, stated the only basis for denying the application which had been filed by the Petitioner, and Mr. Hatch, attorney for the Respondent, agreed that there were no other grounds for disapproving the license application other than the one established in the letter from Mr. C. A. Nuzum, Director of the Division of Beverage.

It was more specifically developed that the language which was relied upon to deny the application was that language set forth in Florida Statute, 561.20(2)(a)(3), "... However, any license heretofore issued to any such hotel, motel, motor court, or restaurant or hereafter issued to any such hotel, motel, or motor court [including a condominium accommodation] under the general law shall not be moved to a new location, such license being valid only on the premises of such hotel, motel, motor court, or restaurant."

Mr. Hatch, in behalf of the Respondent, agreed to the accuracy of the depiction of the stipulation as stated for the record by Mr. Smith.

The parties through their respective attorneys then offered oral argument on the law as it relates to the Petitioner's request for issuance of a license at the aforementioned location. Additionally, Mr. Bishop, a licensing supervisor with the Division of Beverage, was called to testify concerning his interpretation of the operation of Florida Statute, 561 as it pertains to license applications, moves, and transfers.

One further item was offered in the way of a stipulation, and that is an agreement on the part of Mr. Smith, for the Petitioner, to allow examination of two memoranda offered by the Respondent as part of its argument. Mr. Smith indicated that he had a copy of the memoranda and that he had no objection to the use of that memoranda in the way of argument in behalf of the Respondent.

Upon that representation the undersigned was provided with a copy of the

Respondent's memoranda and has considered the same in addressing the legal issue.

CONCLUSIONS OF LAW

1. The Petitioner, in his argument in support of the application for the issuance of the license in question, referred to the legislative history, on the development of Florida Statute, 561.20. He felt that this historical statement was not very beneficial in determining the reasonable outcome of this application, as a matter of law. It was further stressed that there is a difference in definition between the words issue and transfer, and this was felt to be significant because the Petitioner seemed to perceive that the Respondent was trying to substitute the word transfer, for the word issue in the section in question, which is Florida Statute, 561.20(2)(a)(3), which says "... However, any license heretofore issued to any such hotel, motel, motor court, or restaurant or hereafter issued to any such hotel, motel, or motor court [, including a condominium accommodation,] under the general law shall not be moved to a new location, such license being valid only on the premises of such hotel, motel, motor court, or restaurant." He followed this argument up by alluding to the use of the words issue and transfer, within Florida Statute, 561. Mr. Smith then said that the Petitioner perceives the form of operation which it has set in motion as being a transfer and therefore the real question is one involving the availability of making the transfer, that is completing such a transfer. Moreover, according to Mr. Smith, since the words issue and transfer are not interchangeable in their meaning then any restriction associated with requirements for issuance should not be a bar to a transfer.

   
   

2. The Petitioner went on to say that even if issuance was involved in the procedure which the Petitioner was effectuating, then the denial by the Respondent of the request for transfer would still not be well founded. It would not be well founded because the restriction within the aforementioned subsection applies only to those motels or restaurants which were qualified to have a "special" license at the time they were issued a quota license. This is as opposed to the situation which exists with the sending party (motel/restaurant), which started out with a quota license and was not qualified for such a "special" license, and since the qualification was founded on expansion and not a right at the inception of the issue, then there should be no restriction on the transfer of the quota license.

   
   

3. Both parties seemed to agree that perhaps the legislative intent in the questioned language cited above, was to discourage hotels, motels, and restaurants from competing in the quota license market, and by doing so encourage the use of, and application for "special" licenses. As a secondary consideration it was also felt that this prohibitive apparatus would encourage the development of smaller hotels, motels, and restaurants to the point of qualifying for such a "special" license.

   
   

4. The thrust of the Respondent's position on the question is that the prohibition as set forth above applies to any hotel, motel, or restaurant which is moving the location of the license, regardless of whether that hotel, motel, or restaurant was sufficiently developed to have qualified for a "special" license and a quota license at the point they obtained their beverage license or in the alternative, that the hotel, motel, or restaurant could not have qualified for a "special" license in the beginning and therefore took a quota license, but eventually became qualified for a "special" license by growth and development, and was so qualified at the moment a transfer was attempted. In support of this position the Respondent offered memoranda as prepared by Mr.

   Herbert M. Klein, Assistant to the Executive Director and General Counsel, Department of Business Regulation, Office of the Executive Director. This reason also seems to be supported by decisions which have been made in the attempt to transfer the subject license from its location to another location.

   
   

5. Apparently there were two instances before in the case at bar in which such a transfer from one location to another was attempted. The first being in February or March of 1972, and the second being in July of 1973. The licensee who was holding the license in question, and who is still holding the license in question, was characterized as being a motel license holder, for that reason the Division took the position that the subject subsection of Florida Statute, 561.20(2)(a)(3), did not allow the requested transfer. It was indicated that a memorandum was filed on the question as it arose in February or March of 1972, and that the same rationale set forth in that memorandum was used in denying the July, 1973, application; however, it is not clear whether the memorandum referred to in those instances is the same memorandum as offered by the Respondent in this cause.

   
   

6. It was further suggested by the Respondent that the word issue is not restricted to the original issuance of a license to a party, but is also used as a basis of defining annual operation of the Division of Beverage continuing to allow the holder to operate under the license.

   
   

7. Finally, during the course of the presentation, the undersigned requested that counsel for the Respondent possibly provide a copy of the history, a document which establishes the history of the license in question, and the propriety of this request was stipulated and agreed to by the Respondent's attorney and by the Petitioner's attorney. This document has been provided to the Hearing Officer and has been considered in formulating this Recommended Order. Copies of the document which have been received will be attached to this Recommended Order, together with exhibits in the hearing and all other matters of record.

   
   

8. Having considered the argument of counsel and their witnesses, together with the exhibits and memoranda, the following conclusions seem appropriate:

   
   

9. To answer the inquiry, it must first be determined who is restricted from moving a license, under the proviso of Florida Statute, 561.20(2)(a)(3). This question is best divided into, two segments, the first segment being a determination of what the word "issue" means, and a second segment being a determination of what the words "any such" mean. Once this has been determined then a further consideration should be made of the meaning of the word "moved" as provided in Florida Statute, 561.20(2)(a)(3), in the aforementioned language.

10 . There appears to be little doubt that the parties currently holding the license, to wit, J & S Lounge, Inc. and Osceola Inn corporation d/b/a The Keg Room at Highway 441 and Sunshine State Parkway, are holding the license, at least in part, as a qualifying hotel/motel and restaurant within the meaning of Florida Statute, 561.20(2)(a)(3), and have been such a qualifier since the subject application for transfer was made. The question then becomes one of how the word issue within the aforementioned subsection of Florida Statute, 561.20, affects the ability of some party such as the Petitioner, to ask for the transfer of the license which is being held by those aforementioned corporations. To determine the answer to that question one must consider the activity between those corporations and the Division of Beverage regarding the subject license in question.

1. That activity spoken of above, started apparently with the change of license in the form of some issuance to the existing partnership. There is no doubt that this issuance to the partnership group was the same type issuance referred to in Florida Statute, 561.20(2)(a)(3), under the disputed language. However, it should be noted that at that time the hotel/motel and restaurant aspects of the group would not have qualified for a "special" license. Since that date it would appear that annual renewals of the license have been made, and although these matters are referred in Florida Statute, 561.26 as being an annual license issue, it does not seem that this issue is the type issue discussed in Florida Statute, 561.20(2)(a)(3), as set forth in the disputed language. This conclusion is reached by a further examination of Florida Statute, 561.26 and 561.27, which seem to characterize the annual operation vis a vis the license as being a renewal. Therefore, when the partnership, grantor, became qualified for a "special" license and subsequent to that time an annual license renewal came due, the act of issuing a new annual license would not seem to be the type issuance described in the questioned section which is Florida Statute, 561.20(2)(a)(3).

   
   

2. Perhaps this interpretation of the meaning of the word "issue" would have no significance, if one agreed that the prohibition as set forth in Florida Statute, 561.20(2)(a)(3), questioned language, applied to every hotel, motel, and restaurant which qualified at any time for the issuance of a "special" license, regardless of whether that qualification came about at the inception of applying for the license or through growth on the premises, and this would seem to be the contention of the Respondent. However, a careful analysis of the language of the questioned section which sets out, "... However, any license heretofore issued to any such hotel, motel, motor court or restaurant or hereafter issued to any such hotel, motel, or motor court ...", Florida Statute, 561.20 (2)(a)(3), would not seem to support that theory. The language in Florida Statute, 561(2)(a), which immediately precedes the aforementioned sentence seems to identify the class of hotel, motel, motor court or restaurant which is being referred to and that class is those hotels, motels, motor courts or restaurants which could qualify for a "special" license. Consequently, considering that classification the prohibition would seem to apply to those hotels, motels motor courts or restaurants, which could have had a "special" license when they elected to take a quota license at the moment of a license being issued to them, which is not the case here.

   
   

3. By combining the analysis of the definition of the words issue and any such, as set forth in Florida Statute, 561.20(2)(a)(3), the conclusion is reached that whatever the intention of the legislature might have been in developing that language, the language itself would not seem to support a general prohibition against any hotel, motel, motor court, or restaurant moving a license to another location if they could have had a "special" license at any time, either at the inception of their license application or by subsequent growth. It would only prohibit such a move by a hotel, motel, or restaurant who could have had a "special" license when they first were issued a license and elected to take a quota license.

   
   

4. Turning to the question of the right to move the license to a new location, as set forth in Florida Statute, 561.20(2)(a)(3), in the questioned part of the subsection, it would appear from the commentary in the course of the hearing and the August 21, 1975, letter from the Director of the Division of Beverage, that there does not exist any further prohibition against such movement beyond the prohibition outlined in the discussion of the words issue and any such. That is to say were it not for the prohibition as it is

   established in Florida Statute, 561.20(2)(a)(3), the attempt to relocate the quota license housed at the location mentioned would have been allowed.

   
   

5. It is therefore concluded that the Petitioner is entitled to affect the transfer which it is attempting, and the denial of the application would seem to be contrary to the language of Florida Statute, 561.20(2)(a)(3), as it now exist.

RECOMMENDATION

It is recommended that the application for transfer as filed by the Respondent, Buenaventura Lakes Country Club, Inc., to transfer Division of Beverage, license number 7-COP-59-2 from its present location to 301 Buenaventura Boulevard, Kissimmee, Florida, be granted.

DONE and ENTERED this 20th day of November, 1975, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Norman J. Smith, Esquire Brinson and Smith, P. A. Post Office Drawer 1549 Kissimmee, Florida 32741

William A. Hatch, Esquire Department of Business Regulation Division of Beverage

725 Bronough Street Johns Building

Tallahassee, Florida 32304

Docket for Case No: 75-001781

Orders for Case No: 75-001781