STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS L. and THEDA Q. PENNINGTON, ) T/A PENNINGTON'S GROCERY, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1025

) DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF BEVERAGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, at 9:30

1. on June 14, 1976, in Room 103 of the Collins Building, Tallahassee, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Thomas L. Pennington

   Theda Q. Pennington 2024 Airport Boulevard Sanford, Florida

   
   

   For Respondent: Charles L. Curtis

   Department of Business Regulation Division of Beverage

   The Johns Building Tallahassee, Florida 32304

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

   
   

   1. Petitioners filed their application for a transfer of alcoholic beverage license number 69-195, Type 2-APS, and for a change of business name. Also submitted to the respondent were personal data sheets for each petitioner.

      
      

   2. District supervisor Leon Rousseau processed the application and forwarded it to Tallahassee with a recommendation of disapproval, remarking that co-applicant Thomas L. Pennington "has arrest record which creates questionable moral character" and citing F.S. 561.15.

      
      

   3. State licensing supervisor Charles Leonard Ivey, Jr. reviewed the application, the personal data sheets, the agent's report of investigation and the arrest record of petitioner Thomas Pennington, which revealed arrests for attempted grand larceny, possession of non-tax-paid whiskey, possession of

      untaxed cigarettes, impersonating a beverage officer and worthless checks. Such arrests date back to 1960-61, with the latest conviction for attempted grand larceny, a misdemeanor, occurring on May 28, 1975. Mr. Ivey considered Mr.

      Pennington's arrest record and the omissions of data concerning such arrests in both the petitioners' application and the personal data form of Thomas Pennington. On the application for transfer, petitioners gave an answer of "?" to the question of "have any of said persons been convicted of any other offense, excluding minor traffic violations?" While admitting on his personal data sheet that he had been arrested twice and giving the place of arrest, he failed to provide the further information requested as to the arresting agency, the nature of the offense and the disposition of the case. Mr. Ivey concluded that these facts were indicative of a disregard of the beverage laws and accordingly recommended that the application be disapproved.

      
      

   4. On April 26, 1976, petitioners were notified by Division of Beverage Director Charles A. Nuzum that their application had been disapproved for the reason that "co-applicant T.L. Pennington has arrest record which creates questionable moral character," citing F.S. 561.15.

      
      

   5. Thomas L. Pennington admitted that he had committed various wrongs in the past, but stated that he felt he had changed since his last arrest in 1975. He stated that many of his prior problems were a result of excessive drinking and he no longer drinks. He has a job as a carpenter and would only help out on the licensed premises a small portion of the time.

      
      

   6. Theda Q. Pennington testified that Thomas has changed enough since his last offense so that she believes he will no longer commit such offenses. As evidence of such change, Mrs. Pennington cited that he no longer drinks, works hard and is predictable.

      
      

      CONCLUSIONS OF LAW

      
      

   7. Subsection (2) of F.S. 561.15 prohibits the issuance of an alcoholic beverage license to persons convicted of certain offenses within the past five years and to persons convicted of any felony within the past fifteen years. Subsection (1) of F.S. 561.15 provides that "licenses shall be issued only to persons of good moral character, who are not less than twenty-one years of age." In the present case, there is no evidence that petitioner Thomas L. Pennington had been convicted of any of the enumerated offenses within the past five years or of any felony within the past fifteen years. It is respondent's position that petitioner Thomas Pennington lacks the good moral character required of one authorized to hold an alcoholic beverage license due to his past arrest record and lack of evidence of a change in behavior.

      
      

   8. As stated in Permenter v. Kounan, 159 Fla. 226, 31 So.2d 387 (Fla. 1947), one of the principal reasons underlying alcoholic beverage laws is to restrict liquor traffic to persons of good moral character who may be reasonably expected to keep their business free from greater vices. What constitutes good moral character is a matter to be developed by facts and evaluated by the respondent, with a review provided to check against abuses in the discretion exercised by the respondent.

      
      

   9. Here, there is substantial competent evidence to support the respondent's finding that petitioner Thomas Pennington lacks the good moral character necessary to qualify him for a transfer of an alcoholic beverage license. His prior arrests involved offenses which illustrate a complete disregard of the beverage laws of this State. It simply cannot be said that,

      based upon his prior activities, petitioner Thomas Pennington can be reasonably expected to keep his business free from greater vices. If, indeed, petitioner has changed since the date of his last conviction for attempted grand larceny, he failed to illustrate such fact either at the hearing or when he filled out the requisite forms for a license transfer.

      
      

   10. This being a joint application on the part of both Mr. and Mrs. Pennington, and it appearing that Mr. Pennington lacks the requisite good moral character entitling him to hold an alcoholic beverage license, it is concluded that the respondent's action of disapproving the application for transfer is supported by competent and substantial evidence.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that the application for transfer of alcoholic beverage license number 69-195 be denied.

Respectfully submitted and entered this 7day of June, 1976, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Thomas L. Pennington Theda Q. Pennington 2024 Airport Boulevard Sanford, Florida

Mr. Charles A. Nuzum Director

Department of Business Regulation Division of Beverage

The Johns Building Tallahassee, Florida 32304

Mr. Charles A. Curtis Attorney for Respondent

Department of Business Regulation Division of Beverage

The Johns Building Tallahassee, Florida 32304

Docket for Case No: 76-001025

Orders for Case No: 76-001025