STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION ) OF ALCOHOLIC BEVERAGES AND )

TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 79-299

) DABT NO. 32985-A HENRY RODRIGUEZ t/a HICKORY )

HOUSE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at Room 705, Park Trammell Building, 1313 Tampa Street, Tampa, Florida. The hearing was conducted on April 5, 1979, at 9:00 a.m.

APPEARANCES

For Petitioner: Mary Jo M. Gallay, Esquire

Staff Attorney

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Henry Rodriguez

38 Sunshine Ball Clearwater, Florida

Whether or not on or about April 10, 1978, the Respondent, Henry Rodriguez, licensed under the beverage laws, failed to disclose the names and addresses of all persons connected directly or indirectly with him in the business, to-wit: William Vasios, in violation of Section 561.17, Florida Statutes.

FINDINGS OF FACT

1. This cause comes on for consideration based upon a Notice to Show Cause filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, against Henry Rodriguez, trading as Hickory House, 38 Sunshine Mall, Clearwater, Florida. This Notice to Show Cause was filed against the license, No. 62-1602, Series 2-COP, which the Respondent had been granted by the Petitioner.

   
   

2. This license was in effect on or about April 10, 1978, at a time the Respondent was accused of failing to disclose the name and address of a person connected directly or indirectly with the business, namely, William Vasios, and

   this failure to disclose was allegedly contrary to Section 561.17, Florida Statutes. That provision reads:

   
   

   "561.17 License application; approved person.--

   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 division may require the applicant to file a set of fingerprints on regular United States Department of Justice forms for himself and 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.

   2. All applications for alcoholic beverage licenses for consumption on the premises shall be accompanied by a certificate of the Department of Health and Rehabilitative Services or the county health department that the place of business where in the business is to be conducted meets all of the sanitary requirements of the state."

      
      

3. The facts in this case reveal that on April 10, 1978, when a routine inspection was made of the licensed premises by an employee of the Petitioner, one William Vasios was found to be in charge of the premises. Vasios reported that in July, 1977, he had loaned the Respondent, Henry Rodriguez, an amount of

   $14,000.00 to keep the Hickory House business open and Vasios had taken over the operation of the business to protect his interest in the loan. Some of the indicia of Vasios' interest in the business are shown by the fact that the sales tax permit for operating the business was issued in both Rodriguez' and Vasios' names, as demenstrated through the Petitioner's opposite Exhibit No. 2 admitted into evidence. Certain cancelled checks drawn on the business, as shown by Petitioner's Exhibits 3 through 5 admitted into evidence, were written by William Vasios and not the Respondent. These checks pertained to the operation of the business. Certain recap slips and ledger entries indicated that Vasios was controlling the business.

   
   

4. The only indication that Rodriguez is still involved in the operation of the licensed premises is shown by his comments to the effect that he makes periodic checks of the business a couple of times a week.

   
   

5. Henry Rodriguez had not disclosed the interest which William Vasios had in the license even though this requirement was stated in law through Section 561.17, Florida Statutes, and in our system of jurisprudence the Respondent is

   presumed to know the requirements of law. Additionally, when the Respondent applied for the license, he completed a form which indicated that he was disclosing any interest which other persons would have in the licensed premises; and even though this form was filled out at a time prior to Vasios' involvement with the business, common sense would have dictated that the Respondent apprise the Petitioner of any future interest which a third party might have in the licensed premises.

   
   

6. The license was last renewed for the period October 1, 1977, through September 30, 1978. There has been no further effort on the part of the Respondent, Henry Rodriguez, to renew the license and, by his remarks in the course of the hearing, he has indicated that he has no future desire to renew the license. The license is nonetheless still in effect and subject to the penalties provided for through the Section 561.29, Florida Statutes.

   
   

7. The license is deemed to be a viable license, based upon an examination of the provisions of Section 561.27, Florida Statutes, which states:

   
   

   "561.27 Renewing license.-

   1. A licensee under the Beverage Law shall be entitled to a renewal of his annual license from year to year, as a matter of course, on or before September 30 by presenting the license for the previous year or satisfactory evidence of its loss or destruction to the division and by paying the annual license tax and giving any bond required of such licensee under the Beverage Law.

   2. A license may be renewed subsequent to September 30 of each year only upon making to the division a delinquent application for approval, accompanied by an affidavit stating that no sales of alcoholic beverages have been

      made subsequent to September 30, and upon payment of a penalty of $5 for each month or fraction

      of a month of delinquency, or upon payment of a penalty of 5 percent of the license fee, whichever amount is the greater. All licenses not renewed within 60 days of September 30 will be canceled by the division unless such license

      is involved in litigation; however, the division may allow a licensee to renew the license subsequent to the 60day period after good and sufficient cause for the delinquency has been shown to the division by the licensee."

      
      

      It was not revealed in the course of the hearing whether the Notice to Show Cause (Administrative Complaint) was filed later than sixty days beyond September 30, 1978, and under the language of Section 561.27, Florida Statutes, the automatic cancellation set out in that provision only applies to licenses which were not renewed sixty days beyond September 30, 1978, and it excepts those licenses which were the subject of litigation or those licenses where the licensee was able to show good and sufficient cause for his delinquency in the payment of the renewal fee. Since the proof failed to demonstrate the effective date of the filing of the Notice of Show Cause, it is presumed for the purposes of this hearing that the Notice to Show Cause was filed prior to the expiration

      of the sixty-day grace period which follows the September 30, 1978, date. Therefore, the license would have been in litigation and not subject to cancellation by the provisions of Section 561.27, Florida Statutes. This analysis can be supported by the fact that the Respondent was apprised of the Petitioner's concern on the question of the non-disclosure of the name of William Vasios and this knowledge was imparted to the Respondent on April 11, 1978, at a time when the license was still in operation under the payment of fees for the period October 1, 1977, through September 30, 1978.

      
      

8. In summary, the Respondent is the holder of a license within the meaning of the law and has violated the provisions of Section 561.17, Florida Statutes, thereby subjecting the Respondent to the penalties found Section 561.29, Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction in this cause.

   
   

10. Based upon a full consideration of the facts herein, it is concluded as a matter of law that the Respondent, Henry Rodriguez, failed to disclose the name and address of William Vasios, who had a direct interest in the licensed premises, Hickory House, and that non-disclosure violated the provisions of Section 561.17, Florida Statutes, thereby subjecting the Respondent to the penalties found in Section 561.29, Florida Statutes.

RECOMMENDATION

In consideration of the facts herein, it is recommended that the license, No. 62-1602, Series 2-COP, held by the Respondent, Henry Rodriguez to trade as Hickory House, at the location 38 Sunshine Mall, Clearwater, Florida, be revoked.

DONE AND ENTERED this 20th day of April, 1979, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Mary Jo M. Gallay, Esquire Staff Attorney

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Henry Rodriguez t/a Hickory House

38 Sunshine Mall Clearwater, Florida 33516

Captain R. Caplano

Park Trammell Building, Room 705 1313 Tampa Street

Tampa, Florida 33623

Docket for Case No: 79-000299

Orders for Case No: 79-000299