vs. ) CASE NO. 77-1593
Respondent. )
Pursuant to notice a hearing was held before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings at 2331 North State Road 7, Lauderhill, Florida, at 10:00 A.M., September 27, 1977.
For Petitioner: Linda B. Wimmer
2300 Northwest 34th Terrace Ft. Lauderdale, Florida 33311
For Respondent: Dennis E. LaRosa, Esquire
Consideration of the disapproval of the change of officers for the Helm Corporation, which holds a series 4-COP, license no. 16-1999-SRX, held with the State of Florida, Division of Alcoholic Beverages and Tobacco.
The Helm Corporation, which trades as the Helm Restaurant, located at
505 North State Road 7, Plantation, Broward County, Florida, is the holder of a certain license with the Respondent, State of Florida, Division of Alcoholic Beverages and Tobacco. This license held is a series 4-COP, number 16-1999-SRX. The dispute in this cause concerns th intent by the Petitioner to change the corporate officers listed with the Respondent, State of Florida, Division of Alcoholic Beverages and Tobacco, and gain the Respondent's acceptance of this change. IT is the intention of the Petitioner that Linda B. Wimmer be listed as the President/Secretary/Treasurer of the licensee corporation for benefit of recognition by the Respondent.
The Respondent has failed to accept the change of officers and the Director of the Division of Alcoholic Beverages and Tobacco has transmitted a letter of disapproval dated February 18, 1977. The formal hearing was held to consider the propriety of that disapproval.
The Director's disapproval is grounded in the alleged authority of 561.17, F.S. The pertinent provisions of that section state:
"(1) Any person, before engaging in the business of manufacturing, bottling, distributing, selling, or in any way dealing in alcoholic beverages, shall file with the district supervisor of the district of the division in which the place of business for which a license is sought is located a sworn application in duplicate on forms provided to the district supervisor by the division. Prior to any application being approved,
the applicant may file a set of fingerprints on regular United States Department of Justice forms for himself and the manager or person to be in charge. The applicant may also file such a set of fingerprints for any person or persons interested directly or indirectly with the applicant in the business for which the license is being sought, when so required by the division. If the applicant or any person interested with the applicant either directly or indirectly in the business is not qualified, the application shall be denied by the division."
A statement of qualifications is found in 561.15, F.S. And the requisite provisions of that section require:
"(1) Licenses shall be issued only to persons of good moral character, who are not less than 21 years of age. Licenses to corporations shall be issued only to corporations whose officers are of good moral character and not less than 21 years of
age. There shall be no exemptions from the license taxes herein provided to any person, association or persons or corporation, any law to the contrary notwithstanding."
"(2) No licensee under the Beverage Law shall be issued to any person who has been convicted within the last past 5 years of any offense against the beverage laws of this state, or who has been convicted within the last five years in this state or any other state of the United States of solicitation for prostitution, pandering, letting premises for prostitution, keeping a disorderly place, or illegally dealing in narcotics; or who has been convicted in the last past 15 years of
any felony in this state; or who has been convicted in any other state or the United States, of any offense designated as a felony by such state of the United States; or to a corporation, any of whose officers shall have been so convicted. The term "conviction" shall include an adjudication of guilt on a plea of guilty or nolo contendere or the forfeiture of a bond when charged with a crime."
To measure the application for change of officers in the Petitioner corporation against the above requirements of law, it is necessary to begin with a prior business in which Linda Wimmer was a principal. Information concerning the prior business and information concerning Linda Wimmer's involvment with the licensee corporation may be found in the Petitioner's Composite Exhibit #1, admitted into evidence. One of the items found in that composite exhibit is a deposit receipt contract in which one George G. Salvo purchased a business known as the Top of the Mark, Inc., from Linda B. Wimmer and her husband R. C. Wimmer, also known as Richard Wimmer. The deposit receipt contract only reflects the name of Linda Wimmer; however, testimony in the hearing revealed that R. C. Wimmer held an interest in the Top of the Mark, Inc., in terms of a monetary investment, in connection with that licensed premises. This is further demonstrated by a copy of a cancelled cashier's check in which Richard A. Bird was the trustee and it pertained to $30,000 cash for the purchase of the Helm Restaurant, naming R. C. Wimmer as the purchaser. This $30,000 was part of the proceeds derived from the sale of the Top of the Mark, Inc. Restaurant to Mr.
Salvo. The specific terms of the agreement for purchase and sale of the shares in the Helm Corporation, may be found in the document entitled `Agreement for purchase and Sale of Shares." Through that agreement, John Oprian, Joseph Santoro, and Carl Renda, sold their shares in the corporation to Robert C. Wimmer, husband of Linda B. Wimmer, the present owner of the Helm Corporation. This purchase took place in September, 1976. It is unclear when the actual closing was held, but the closing did occur in September or October, 1976.
On September 21, 1976, Linda Wimmer made application with the Respondent to change the name of the corporate officers from those reflected with the Respondent (which were John J. Oprian, Joseph Santoro, Carl Renda) to Linda H. Wimmer. This application form completed by her is part of composite exhibit #1 and reflects that she was the present owner of the Top of the Mark Restaurant, and was 100 percent owner of the stock in the Helm Corporation. The form also indicated that the purchase price of the Helm Corporation was $130,000 of which $90,000 was a security agreement to the sellers and $40,000 balance was to come from the sale of the Top of the Mark Restaurant for $85,000, from which Mrs. Wimmer cleared $46,500. In fact, as established before, Richard C. Wimmer, shared in the proceeds of that sale of the Top of the Mark Restaurant.
One of the other items which came with the application was a certificate of the minutes of the meeting of the Petitioner which made Linda B. Wimmer the President/Secretary/Treasurer of the Corporation. This was effective September 21, 1976. This document also shows that Linda B. Wimmer is the holder of 100 percent of the stock.
In reality the specific change of officers of the corporation did not take place until October 5, 1976. This is reflected in the combined minutes of special meeting of stockholders and board of directors of Helm Corporation of that same date. On October 5, 1976, John J. Oprian resigned as President and
Director, Joseph Santoro as Secretary/Treasurer and Carl Renda resigned as Vice President. Robert C. Wimmer became the President and Director and Linda B. Wimmer became the Vice President, Secretary/Treasurer and Director.
On October 5, 1976, stock issues number 4 and 5 pertaining to 167 shares and 166 shares respectively of the stock of Helm Corporation, were mode over to and cancelled by Robert C. Wimmer. Those shares were effectively cancelled by the assignment of the shares on October 7, 1976 from Robert C. Wimmer to L. B. Wimmer, aka Linda B. Wimmer. This transpired one day after Robert C. Wimmer had resigned as President and Director of the Helm Corporation. On October 6, 1977, by written action of the shareholders and Directors, in lieu of a special meeting, Linda B. Wimmer then became the President/Treasurer if the subject corporation. New issues if the stock were made by numbers 7, 9 and 9 respectively.
An examination of the underlying facts demonstrates that at the time application was made to change the officers in the subject corporation, Linda B. Wimmer had not disclosed the existance of her husband's, Robert C. Wimmer's, interest in the Helm Corporation. Moreover, his resignation as Director and officer, and surrender of stock shares does not foreclose his interest in the corporation. He still holds an interest within the meaning of 561.17, F.S. In his testimony, he agreed with this in the sense that he indicated that the running of the Helm Restaurant would be in the form of him operating the kitchen, while his wife operated the bar. Therefore, if Robert C. Wimmer as a person interested in the license, is not qualified, the application should be denied by the Respondent.
Robert C. Wimmer's interest, can be regarded as a direct interest in the subject Helm Corporation, based upon his financial involvement, his relationship as husband to the applicant, and his stated interest. He has also been convicted of a felony within the last 15 years of the request for change of officers. Specifically, he was convicted in 1968 in an action by the United States, which trial was held in Cincinnati, Ohio. He was convicted of conspiracy to commit counterfeiting and served 15 months in a federal prison compound at Eglin Air Force Base, Florida. He has not had his civil rights restored. This is reflected in a letter filed by Mrs. Wimmer with Director Nuzum, dated November 22, 1976.
Consequently, the change of officers to make Linda B. Wimmer the officer of the Helm Corporation, listed with the Respondent, should be denied.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this cause.
The application by Linda Wimmer to become the officer listed with the Respondent, State of Florida, Division of Alcoholic Beverages and Tobacco, should be denied premised on the fact that her husband, Robert C. Wimmer, is a person interested with the applicant directly, in the business known as Helm Corporation, t/a Helm Restaurant, and the husband, Robert C. Wimmer is not qualified to be a licensee because of his conviction in 1968 of an offense against the laws of the United States, specifically, conspiracy to counterfeit, a felony. See 561.15 and .17, F.S.
It is recommended that the application to change officers in the Helm Corporation, for purposes of the beverage licensee held by that corporation, which would list Linda B. Wimmer as the answerable officer in the corporation, be denied.
DONE AND ENTERED this 18th day of October, 1977, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
Dennis E. LaSosa, Esquire Linda B. Wimmer
Division of Alcoholic Beverages 2300 Northwest 34th Terrace and Tobacco Ft. Lauderdale, Florida 33311 725 South Bronough Street
