STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RED KING ENTERPRISES, INC., ) t/a RED ROAD LOUNGE, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1594

) 4-COP 23-2867

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on December 15, 1977 at Miami, Florida.

APPEARANCES

For Petitioner: Alvin Goodman, Esquire

Suite 180, 8585 Sunset Drive

Miami, Florida 33143

For Respondent: Dennis E. LaRosa, Esquire

Staff Attorney

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32304

ISSUE

By letter dated July 18, 1977 the Division of Alcoholic Beverages and Tobacco disapproved Petitioner's application for transfer of beverage license for the stated reason that corporate officer Anthony DuVal was not believed to be of good moral character. By letter dated July 25, 1977 DuVal contested the denial of the license transfer and requested a hearing. Two witnesses including DuVal testified in behalf of Petitioner, two witnesses were called by Respondent, and 4 exhibits were admitted into evidence.

FINDINGS OF FACT

1. Red Wing Enterprises, Inc., a Florida corporation, acquired ownership of the Red Road Lounge and the beverage license appurtenant thereto. Anthony DuVal and his wife own fifty percent of the stock of Red Wing Enterprises although Exhibit 3 shows DuVal to own one hundred percent of the applicant. Exhibit 3 shows DuVal was born in 1933; he testified that he is now 46. He changed his name to DuVal from Anthony Anello.

2. On his original application, Exhibit 3, under his arrest record DuVal showed arrests in 1961 for FHA fraud and worthless check for which he was placed on probation and in 1965 a conviction for buying receiving, and concealing stolen property for which he was sentenced to one year in the county jail.

   
   

3. During the investigation of his application DuVal was questioned at the Miami Division of Beverage office in April, 1977 regarding various arrests. He then denied having been arrested in New Jersey under the name of Anello and had no recall of various other arrests prior to 1960.

   
   

4. Exhibit 4, Personnel Questionnaire, was prepared by DuVal with assistance of counsel on December 9, 1977 at the time of his previously scheduled hearing which was then continued until December 15.

   
   

5. Exhibit 4 shows 6 worthless check offenses between March and August, 1960 for which he pleaded guilty and was placed on two year's probation; worthless check conviction in 1961 for which he was given probation; PEA fraud conviction 1961, for which he was given probation; a grand larceny charge dismissed for want of prosecution 10-7-63; aggravated assault, 1966 for which he was found not guilty; possession of firearms by a convicted felon, 1966 which was dismissed for want of prosecution; buying, receiving or concealing stolen property, 1965 and 1967 for which he was found not guilty; worthless check, 1967 for which he was found not guilty; buying and receiving or concealing stolen property, 1965, found guilty and sentenced to one year in county jail; and buying and receiving stolen property, 1969 for which he was found not guilty.

   
   

6. In his testimony DuVal admitted arrests and convictions in New Jersey under the name of Anello plus numerous arrests from the operation of his store "Tony's Trading Post" in Miami as well as citations for not keeping his property clean of trash. His explanation of Exhibit 3 not including numerous arrests was that he thought only convictions need to be reported. His explanation for not listing the arrests prior to 1960 was that he thought he only needed to go back fifteen years in disclosing his record. DuVal described his trading post as a borderline operation by which he obviously implied that he often bought stolen property but could only take the seller's affidavit that the property was rightfully his to tell. For complaints stemming from this operation he was arrested perhaps 20 times but was not convicted. Numerous other times he was arrested for municipal code violations when trash was dumped on his property.

   
   

7. In 1972 DuVal had his civil rights restored that had been -lost by reason of his convictions of the worthless check offenses and FHA fraud in 1961, and for the 1965 conviction of buying, receiving and concealing stolen property.

   
   

8. The one witness who testified regarding DuVal's character had worked for DuVal as bookkeeper and bartender when he first took over the Red Road Lounge. Although she testified DuVal's reputation was good and people spoke highly of him, her observations were limited generally to the patrons of the bar. She had never spoken to the police, to patrons of Tony's Trading Post, or to any of the local politicians she knew, about DuVal's reputation.

   
   

9. DuVal's explanation for failure to bring in various witnesses whose names he dropped as good friends, was that he didn't want them to know about his criminal record.

   
   

10. DuVal owns motels, apartments, the Trading Post, and several lots in Miami in addition to the interest he acquired in the Red Road Lounge.

    CONCLUSIONS OF LAW

    
    

11. Section 561.15 F.S. contains criteria disqualifying applicants for the issuance of licenses. Among these are:

    
    

    "(1) Licenses shall be issued only to persons of good moral character ...

    (2) No license under the Beverage Law shall be issued to any person ... who has been convicted in the last 15 years of any felony in this state ... or to a corporation any of whose officers shall have been so convicted."

    
    

12. Not only has DuVal been convicted of a felony within the past 15 years, i.e. buying, receiving and concealing stolen property in 1965, but also he has produced no evidence tending to show that despite his earlier convictions he is now a person of good moral character. The evidence of continued and continuing arrests for receiving stolen property, despite the lack of convictions, does not bolster his claim that he is a person of good moral character.

    
    

13. Moral character as used in Section 561.15 F.S. means not only the ability to distinguish between right and wrong, but the character to observe the difference. Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102 (1st DCA FLA. 1977). Although DuVal admitted in his own testimony that the Trading Post was a borderline operation he continued to engage in questionable business practices which led to numerous arrests for handling stolen property.

    
    

14. From the foregoing it is concluded that Section 561.15(2) F.S. precludes the issuance of a license to a corporation of which DuVal is an officer because he has been convicted of a felony in this state within the past

    15 years.

    
    

15. It is further concluded that Anthony DuVal is not a person of good moral character so as to qualify him for the issuance of a beverage license to a corporation of which he is an officer. It is therefore,

RECOMMENDED that the petition be dismissed and the determination that DuVal does not possess the good moral character required for an alcoholic beverage license be sustained.

DONE and ENTERED this 30th day of December, 1977, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Alvin Goodman, Esquire Suite 180

8585 Sunset Drive

Miami, Florida 33143

Dennis E. LaRosa, Esquire Staff Attorney

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32304

Docket for Case No: 77-001594

Orders for Case No: 77-001594