STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MACK'S CONFECTIONERY, HENRY ) McCALISTER & WILLIE MACK, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1364

)

DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF ALCOHOLIC ) BEVERAGES AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on August 24, 1978 in the offices of the Department of Business Regulation, 1934 Beachway Road, Jacksonville, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This case arose upon the denial of the Petitioner's application for a beverage license pending a Section 120.57, Florida Statutes, hearing, if requested, because one of the applicants, Willie Mack, had been allegedly convicted of a felony within the past 15 years pursuant to Section 561.15, Florida Statutes.

APPEARANCES

For Petitioner: Willie Mack

838 Robinson Avenue

Jacksonville, Florida 32209 Appeared in his own behalf

For Respondent: Francis Bayley, Esq.

Division of Alcoholic Beverages and Tobacco Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32304

ISSUES

Was the Petitioner's application denied for good cause and is the Petitioner entitled to the beverage license for which he applied?

FINDINGS OF FACT

1. Henry McCalister and Willie Mack applied for a beverage license to the Division of Alcoholic Beverage and Tobacco, Department of Business Regulation.

2. Willie Mack was notified that this application was to be denied because he had been convicted of a felony within the past 15 years pursuant to Section 561.15, Florida Statutes. He was further advised that he was entitled to a hearing pursuant to Section 120.57, Florida Statutes.

   
   

3. The Respondent failed to produce at hearing any evidence of Mack's conviction of a felony.

   
   

   CONCLUSIONS OF LAW

   
   

4. The burden falls upon the applicant to show his qualifications for licensure. The applicants, McCalister and Mack, presented their qualifications for licensure by filing an application. The Department denied the application on the basis that one applicant, Mack, had been convicted of a felony within the past 15 years. Section 561.15, makes this grounds for denial of a beverage license. Although the burden generally rest on the applicant to show his or her qualifications, the burden falls on the agency to produce proof of disqualifying factors when the agency denies a license because of specific factual allegations.

   
   

5. At the hearing there was no evidence produced that Willie Mack had been convicted of a felony. The Respondent failed to meet its burden of proof that the applicant was disqualified because of a felony conviction. There being no other stated basis for denial of the license, the applicants are qualified.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Respondent issue the applicant the beverage license for which they applied.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 6th day of September, 1978.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Mr. Willie Mack

834 Robinson Avenue

Jacksonville, FL 32209

Francis Bayley, Esq.

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, FL 32304

Docket for Case No: 78-001364

Orders for Case No: 78-001364