STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 76-474

) DOB CASE NO. 6-75-175A

CESAR A. RODRIGUEZ, t/a )

Leonard's Drive Inn, )

)

Respondent. )

)

RECOMMENDED ORDER APPEARANCES

For Petitioner: William A. Hatch, Esquire

Staff Attorney

Department of Business Regulation The Johns Building

Tallahassee, Florida 32304

For Respondent: Cesar A. Rodriguez

1700 West Columbus Drive Tampa, Florida

This matter was brought before this Division on a Notice to Show Cause why the Respondent's liquor license should not be suspended or revoked for the following charges:

1. On or about December 12, 1974, Cesar A. Rodriguez, licensed under the beverage law, failed to disclose the names and addresses of persons interested directly or indirectly with his business for which his beverage

   license was issued, contrary to Section 561.17, Florida Statutes, more specifically, the undisclosed interest of Angelo A. Cannata.

   
   

2. On or about December 12, 1975, investigation revealed that Cesar A. Rodriguez had relinquished all of the management and control of his licensed premises to one, Angelo A. Cannata, contrary to Rule 7A-3.17, Florida Administrative Code.

1. The Respondent holds License No. 39-697 with the Division of Beverage. This is for an establishment known as Leonard's Drive Inn located at 1700 West Columbus Drive, Tampa, Florida.

   
   

2. The evidence presented at the hearing on this matter revealed that Angelo A. Cannata had paid approximately $1,500.00 per month which was the rent

   for Leonard's Drive Inn; had drawn checks on the account of Leonard's Drive Inn; had made deposits to the establishment's bank account; and, had borrowed money in the name of Leonard's Drive Inn from the Barnett Bank. A loan to Angelo Cannata from the Barnett Bank was paid by checks drawn from Leonard's Drive Inn by Angelo Cannata and other payments on loans and notes from Barnett Bank were paid again by Angelo Cannata signing checks on the account of Leonard's Drive Inn.

   
   

3. The Respondent, Cesar A. Rodriguez, testified on his own behalf and stated that Angelo Cannata is a good friend of his and has a status of an employee at Leonard's Drive Inn. Rodriguez stated that he is indebted to the Barnett Bank on various notes and obligations roughly in the amount of

   $200,000.00. He stated that with this amount outstanding the Barnett Bank is not in a position to be able to advance him any more funds. The arrangement between he and Cannata is that of a friend and employee who has let him use his credit so that he may continue the operations off Leonard's Drive Inn using Cannata's credit as a signer on the obligations which were introduced into evidence. Furthermore, he stated that as an employee of Leonard's Drive Inn Cannata is authorized signator on the establishment's account at the Barnett Bank.

   
   

4. Rodriguez stated Cannata receives no salary from him, however, the arrangement is that whatever profits Leonard's Drive Inn makes Cannata will share in those profits on an equal basis with Rodriguez. No evidence was presented to the effect that Angelo Cannata was in any way unfit to hold a beverage license. Rodriguez stated Cannata had no proprietary interest in Leonard's Drive Inn and did not own any part of the business. None of this testimony was rebutted by the Division of Beverage.

   
   

5. Section 561.17, F.S., is directed at applicants for liquor licenses. in this case, the Respondent already possesses a liquor license. Although Section 561.17, F.S., deals with the denial of a liquor license application, here the Respondent has not sought a liquor license; he already possesses one.

   Furthermore, no evidence was presented that Angelo Cannata, if he did own interest in Leonard's Drive Inn, was in any way unfit to have an interest in the establishment licensed by the Petitioner. This situation is somewhat similar to the case of Wilkenfeld v. Meiklejohn 216 So.2d 237. In that case the First District Court of Appeal stated that the nature of interest one must have in a business described in Section 561.17, F.S., must be a pecuniary interest. Here there is only an interest demonstrated in the profits, if any, of the establishment not in the business itself. No evidence was submitted that Cannata had a proprietary interest in the establishment itself. The evidence presented was consistent with the explanation that Cannata is an employee who may be terminated at any time by the Respondent. Although the evidence raises a strong suspicion that Cannata is more than just an employee, the evidence does not support a finding consistent with Count I of the Notice to Show Cause.

   Additionally, the case of Westermen v. Shell's City, Inc. 265 So.2d 43 where that court held that holding an obligation for 2 percent of the gross sales of a liquor store was not an interest in the business under Section 561.17, F.S., lends credence to the holding that a profit sharing agreement is not, per se, an interest in the business under that statutory section.

   
   

6. As to Count II of the Notice to Show Cause, it is sufficient to say that the evidence certainly showed Angelo Cannata greatly participates in the financial affairs of Leonard's Drive Inn. The evidence does not support a finding that the Respondent, Cesar A. Rodriguez, "relinquished all of the management and control of the licensed premises". This Hearing Officer takes

notice of the fact that there is more to running a licensed premises than paying the rent, borrowing money and paying bills, which are the only areas about which evidence was presented. It is therefore recommended that the Notice to Show Cause filed in this case be dismissed.

DONE and ORDERED this 3rd day of May, 1976, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Willian A. Hatch, Esquire Staff Attorney

Department of Business Regulation The Johns Building

Tallahassee, Florida 32304

Cesar A. Rodriguez

1700 West Columbus Drive Tampa, Florida

Docket for Case No: 76-000474

Orders for Case No: 76-000474