STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: The Division of Beverage )

and J. and R. Lounge, ) CASE NO. 76-642 License No. 23-619 )

)

ORDER

This matter was scheduled for hearing on April 15, 1976, in Fort Lauderdale, Florida. The Hearing Officer being delayed, the parties agreed between themselves that they would proceed with the hearing and submit a transcript to the Hearing Officer which transcript would be used for entry of the Recommended Order. On page 3 of the transcript the parties note that they have stipulated and agreed that the disposition of the license application is one to be decided as a matter of law since there are no disputed issues of material facts. Further, the transcript discloses that the parties have purported to stipulate to the pertinent facts in this case.

ISSUE

The basic issue for determination in an application for transfer of a license, which is the subject matter of this proceeding, is whether or not such transfer should be granted by the Division of Beverage. A review of the transcript reveals that the parties have not stipulated to facts sufficient to determine whether the applicant is entitled to a transfer. Rather, the parties have stipulated only to what is in essence a hypothetical situation wherein a secured party under the Uniform Commercial Code retakes a license pursuant to Chapter 679, Part V, Florida Statutes, without resorting to the courts of this state. The parties do not appear to have stipulated that in this case the applicant properly complied with the requirements of Chapter 679, Part V, Florida Statutes, but rather they seek an advisory opinion from the Hearing Officer on whether the Division of Beverage should recognize such action as validly vesting ownership of the license in the purchaser or his successors under Section 579.504, Florida Statutes. From the exhibits attached to the transcript it appears that Division of Beverage has issued a Declaratory Statement setting forth its position that the Division should not place itself in the position of recognizing a secured party's alleged interests in a liquor license through the default procedures of the UCC without court approval and direction. The exhibits to the transcript also show that the particular license in question is under an Order of Suspension dated July 24, 1974. As pointed out by counsel for the Division of Beverage in the transcript, Section 561.32(1), Florida Statutes, states that ". . . no one shall be entitled as a matter of right to a transfer of a license when . . . suspension proceedings have been instituted against a licensee, and a transfer of license in any such case shall be within the discretion of the division." The stipulated facts in this matter contain no showing that the discretion of the division has been challenged in this case or has been exercised arbitrarily or, for that matter, that the division intends in the exercise of this discretion to deny transfer. It is further noted that Section 561.32(1), Florida Statutes, sets forth the basic requirements for the transfer of a license issued under the beverage law and notes that the application for transfer shall be approved by the division in accordance with the same procedure provided for in Sections 561.17, 561.18 and

561.19, Florida Statutes. The stipulated facts in this matter do not pretend to show that the foregoing requirements have or have not been met.

The Hearing Officers of the Division of Administrative Hearings are empowered to conduct hearings under Section 120.57(1), Florida Statutes. That section deals with matters involving disputed issues of material fact, Administrative hearings in which there are no disputed issues of material fact are to be conducted pursuant to Section 120.57(2), Florida Statutes, entitled "Informal Proceedings". Such a proceeding does not necessarily involve a Hearing Officer from the Division of Administrative Hearings and Chapter 120, Florida Statutes does not appear to give a Hearing Officer from the Division of Administrative Hearings any inherent or unique authority or responsibility with regard to such a proceeding. Any conclusion of law entered by a Hearing Officer from the Division of Administrative Hearings in an informal proceeding would, by law, be in no way binding on the agency involved and would amount to little more than a gratuitous legal opinion about a matter in which, in this case, the agency has issued a definitive statement setting forth its legal position. For that reason Hearing Officers from the Division of Administrative Hearings do not normally conduct informal proceedings. Further, in the matter currently at hand, the parties have not presented a fully developed, existing factual situation to the Hearing Officer, but rather have presented a hypothetical situation on a narrow issue of law and seek an advisory opinion on this theoretical question. Such advisory opinions by a Hearing Officer are not appropriate in proceedings conducted pursuant to Section 120.57, Florida Statutes.

Therefore, considering the nature of this proceeding, it is not deemed proper for the Hearing Officer to enter a Recommended Order, Conclusions of Law and Findings of Fact as provided for in Section 120.57(1), Florida Statutes, and this matter is hereby returned to the Division of Beverage for further proceedings as appropriate.

ORDERED this 28th day of June, 1976, in Tallahassee, Florida.

CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Charles L. Curtis, Esquire Staff Attorney

Division of Beverage The Johns Building

Tallahassee, Florida 32304

Henry A. Amoon, Esquire

123 N.W. 12th Avenue Miami, Florida 33128

Docket for Case No: 76-000642

Orders for Case No: 76-000642