STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NAUTICAL JUNK YARD, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 78-1608

)

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Lauderhill, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on October 24, 1978. The parties were represented by counsel:

APPEARANCES

For Petitioner: John V. Russell, Esquire

312 Southeast 17th Street

Ft. Lauderdale, Florida 33136

For Respondent: Mary Jo M. Gallay, Esquire

Staff Attorney

725 South Bronough Street Tallahassee, Florida 32304

By letter dated August 21, 1978, Charles A. Nuzum advised petitioner that its application for transfer of a beverage license had been disapproved on the ground that a "[c]orporate officer has been convicted of a beverage law violation in the past 5 years."

FINDINGS OF FACT

1. In support of petitioner's application for transfer, one Robert Shepard Pierpont completed respondent's form 710-L, "Personal Questionnaires' signing it in a blank labeled "Signature of Applicant." Mr. Pierpont would like to operate the establishment in Broward County for which the present license transfer is sought. He has invested forty thousand dollars ($40,000.00) in the proposed operation and stands ready to invest another like amount.

   
   

2. For some 20 years Mr. Pierpont has owned and operated bars and restaurants. In August of 1976, a minor obtained something alcoholic to drink at a restaurant operated by Mr. Pierpont in Branford, Connecticut. Even though he was unaware of the events at the time, Mr. Pierpont was convicted, on November 10, 1976, of "sales to minor" in the West Haven, Connecticut, Court of Common Pleas, as a result of the incident. Mr. Pierpont has never been convicted of any other violation of any beverage law.

   CONCLUSIONS OF LAW

   
   

3. Florida law provides that "[n]o license under the Beverage Law shall be issued to any person who had been convicted within the last past 5 years of any offense against the beverage laws of . . . any . . . state . . . or to a corporation, any of whose officers shall have been so convicted." Section 561.15(2), Florida Statutes (1977), The transfer of a license is equivalent to the issuance of a license, for purposes of the statute.

   
   

4. Petitioner conceded that Mr. Pierpont is a person who has been convicted of an offense against a beverage law of the State of Connecticut, but argued that the conviction should not preclude its holding a beverage license because, according to Mr. Pierpont's account of the circumstances giving rise to the conviction, he was not "culpably responsible for such violation as a result of his own negligence, intentional wrongdoing or lack of diligence." Woodbury

   v. State Beverage Department, 219 So.2d 47, 48 (Fla. 1st DCA 1969). Since nothing in Section 561.15, Florida Statutes (1977), makes the factual situation underlying a conviction relevant to disqualification from holding a license, this argument must be rejected.

   
   

5. Mr. Pierpont's precise relationship to the corporate petitioner was not developed in the evidence, although the general tenor of the testimony suggested a close relationship and Mr. Pierpont signed a questionnaire in connection with petitioner's application in a blank labeled "Signature of Applicant." Nobody, including petitioner's able counsel, as much as suggested that Mr. Pierpont was not a corporate officer of petitioner.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent deny petitioner's application for transfer of license unless, within twenty days, Mr. Pierpont furnishes respondent an affidavit reciting that he is not a corporate officer of petitioner.

DONE and ENTERED this 17th day of November, 1978, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

John V. Russell, Esquire

312 S.E. 17th Street

Ft. Lauderdale, Florida 33136

Mary Jo M. Gallay, Esquire Staff Attorney

725 South Bronough Street Tallahassee, Florida 32304

Docket for Case No: 78-001608

Orders for Case No: 78-001608