STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 79-1287

) (DABT NO. 33234A)

KEITH NOTHNAGEL, d/b/a )

THE INN BETWEEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on July 20, 1979, in Room 702, Park Trammell Building, 133 Tampa Street, Tampa, Florida.

APPEARANCES

For Petitioner: Mary Jo M. Gallay, Esquire

Staff Attorney

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

For Respondent: Waldense D. Malouf, Esquire

325 South Garden Avenue Clearwater, Florida 33516

ISSUE

This case concerns action by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, through a Notice to Show Cause (Administrative Complaint) to assess a civil penalty, suspend or revoke or deny the renewal of the beverage license of the Respondent, Keith Nothnagel. This action is promoted on the allegation that the Respondent was convicted in the United States District Court for the Eastern District of Michigan of the offense of conspiracy to possess marijuana in violation of the United States Code, Title 21, Section 846, on May 25, 1978, in that this conviction constituted a violation of Subsections 561.15(2) and 561.29(1)(a), Florida Statutes, and thereby subjects the Respondent to penalties found in Section 561.29, Florida Statutes.

FINDINGS OF FACT

1. The Respondent, Keith Nothnagel, holds license No. 62-1311, series 2- COP, issued by the State of Florida, Division of Alcoholic Beverages and

   Tobacco. This license allows the Respondent to sell beer and wine to be consumed on his premises located at 606-608 Court Street, Clearwater, Florida.

   
   

2. The beverage license was issued on January 17, 1977, at a time subsequent to the commission of an offense for which the Respondent pled guilty to conspiracy to possess marijuana in violation of the United States Code, Title 21, Section 846, and this plea was made on March 15, 1978. On May 24, 1978, the Respondent was found guilty of the offense and convicted and sentenced to serve one (1) year. The Respondent did serve seven (7) months of that sentence. A copy of the Judgment and Commitment Order may be found as Petitioner's Exhibit No. 1 admitted into evidence.

   
   

3. It is on the strength of this plea and adjudication of guilty and sentence that the Petitioner has charged the Respondent with violations of Subsections 561.15(2)(a) and 561.29(1)(a), Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this cause.

   
   

5. One of the grounds on which the Petitioner has offered its prosecution is set forth in Subsection 561.29(1)(a), Florida Statutes, which reads as follows:

   
   

   1. Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state or of the United States, or violation of any municipal or county regulation in regard to the course of sale,

      service, or consumption of alcoholic beverages, or engaging in or permitting disorderly

      conduct on the licensed premises, or permitting another on the licensed premises to violate any of the laws of this state or of the United States; except that whether or not the licensee or his or its agents, officers, servants, or employees have been convicted in any criminal court of any violation as set forth in this paragraph shall not be considered in proceedings before the Division of 1/ [Alcoholic Beverages and Tobacco] for suspension or revocation of a license except a permitted by Chapter 92 of the rules of evidence.

      
      

      An examination of the substantive provision alluded to, shows that the only potential violation under the facts reported would the on the theory that the Respondent has violated United States Code, Title 21, Section 846, dealing with the conspiracy to possess marijuana; however, this violation cannot pertain due to the fact that the offense at issue was not committed on the licensed premises or in some ether place while the Respondent was acting in the scope of his employment connected with the licensed premises. Consequently, the Petitioner has failed to demonstrate a violation of Subsection 561.29(1)(a), Florida Statutes.

6. The Petitioner has made a further allegation that the conviction for the offense of conspiracy to possess marijuana in violation of United States Code, Title 21, Section 846, constitutes a basis for action against the Respondent's license under the language of Subsection 561.15(2), Florida Statutes. That language states:

   
   

   (2) No license under the Beverage Law shall be issued to any person who has been convicted within the last past 5 years of the offense against the beverage laws of this state, the United States, or any other state; who has been convicted within the last past 5 years in this state or any other state or the United States of soliciting 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 any other state or 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.

   
   

   Again, this theory of prosecution is not a viable one. Subsection 561.15(2), Florida Statutes, sets forth a grounds for the denial of the original issuance of a license and the conviction herein occurred at a time subsequent to the issuance of the beverage license in question. In addition, any contention on the part of the Petitioner that Subsection 561.15(2), Florida Statutes, can be made applicable to the Respondent on the theory that a license renewal is being attempted by the Respondent and in the course of a license renewal, renewal applicants may be held to the same standards as an original applicant, is not convincing.

   
   

7. A reading of the provision dealing with license renewals under the beverage laws of the State of Florida shows that this act of renewal is a ministerial function, except on the occasions when a substantive violation has been charged under Section 561.29, Florida Statutes, against the existing license. (In that latter event, the substantive prosecution would be allowed to run its course and the license would or would not be issued based upon the outcome of that prosecution.) The language of the license renewal provision states the following:

1. 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 that 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 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 60-day period after good and sufficient cause for the delinquency has been shown to the division by the licensee.

1. Finally, even assuming for purposes of argument that provision Subsection 561.15(2), Florida Statutes, has application to license renewals, nothing in that section would prohibit the issuance of a license to the Respondent because his violation of the United States Code and conviction for that violation does not pertain to one of the designated types of violations for which a license may be denied. The item most nearly approximating a violation is the statement of conviction for illegally dealing in narcotics and a conspiracy to possess marijuana is not a dealing in narcotics.

   
   

2. The Petitioner in its Notice to Show Case has made a general reference to Section 561.29, Florida Statutes, which serves to state the penalties that may be imposed for violating the beverage laws and rules and to set forth substantive grounds for establishing a violation of the beverage laws. An examination of those portions of Section 561.29, Florida Statutes, other than that provision Subsection 561.29(1)(a), Florida Statutes, which has been discussed; does not establish that the facts related in this cause would show a violation of any of the remaining provisions of Section 561.29, Florida Statutes, not previously discussed.

   
   

3. In summary, it is concluded as a matter of law that the Petitioner has failed to establish a violation of Subsections 561.15(2) and 561.29(1)(a), Florida Statutes, for facts related to the May 25, 1978, conviction of the Respondent on the offense of conspiracy to possess marijuana, a violation of United States Code, Title 21, Section 846.

RECOMMENDATION

It is recommended that the action through this Notice to Show Cause filed against the Respondent, Keith Nothnagel, be DISMISSED.

DONE AND ENTERED this 16th day of August, 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

Waldense D. Malouf, Esquire

325 South Garden Avenue Clearwater, Florida 33516

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION

DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO

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

Petitioner,

v. DOAH NO. 79-1287

DABT NO. 33234A

THE INN BETWEEN/KEITH NOTHNAGEL,

Respondent.

/

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly assigned Hearing Officer, Charles Adams, held a hearing in this cause on Keith Nothnagel t/a The Inn Between, on July 20, 1979 in Tampa, Florida. The Division of Alcoholic Beverages and Tobacco (Petitioner herein) seeks to assess a civil penalty, suspend or revoke the beverage license of Keith Nothnagel t/a The Inn

Between, (License No. 62-1311, Series 2-COP), Respondent, pursuant to its Notice to Show Cause issued in April of 1979.

The Notice to Show Cause filed against the Respondent alleges that:

On or about May 25, 1978, you, Keith Nothnagel, licensee, were convicted in the United States District Court for the Eastern District of Michigan of the offense, to wit: Conspiracy to possess marijuana in violation of the United States Code, Title 21, Section 846 and Florida Statutes 561.15(2), to wit: Florida Statutes 561.29(1)(a).

The Recommended Order of the Hearing Officer was entered on August 16, 1979. Exceptions were timely filed to such Order by Petitioner. Such exceptions are found to be meritorious and are granted.

In the Recommended Order entered by the Hearing Officer it was determined as a conclusion of law that Section 561.15(2), Florida Statutes applies only to the denial of an original issuance of a license, and that the act of renewing a beverage license in the State of Florida is a ministerial function, and hence precludes a revocation of an already issued license predicated upon the failure to maintain the statutory requirements for issuance.

The Hearing Officer further determined, as a conclusion of law, that a conviction for conspiracy to possess marijuana is not a conviction for illegally dealing in narcotics as contemplated in Section 561.15(2), Florida Statutes.

The factual findings of the Hearing Officer are accepted, and adopted herein. The above-quoted conclusions of law are, however, rejected for the following reasons.

Section 561.15, Florida Statutes, in subsection (2) sets forth a prohibition against the issuance of licenses to any person who has been convicted within the preceding five years of illegally dealing in narcotics. The title of Section 561.15 is "Licensees; qualifications required." No language contained in Section 561.15 limits its application to the original act or occasion of the issuance of a license to a particular person or entity.

Therefore, in order to obtain or continue to hold a license issue by the Division of Alcoholic Beverages and Tobacco, a person must constantly maintain the qualifications required under Section 561.15.

Furthermore, it is noted that, as a matter of law, although the annual renewal of a license is a ministerial duty, if a violation of the applicable licensing statute has occurred, the proper vehicle for the removal of the license is revocation, rather than a denial of a renewal. Therefore, the failure to maintain license qualifications set forth by statute is a valid basis for revocation.

It is further determined that the term "dealing in narcotics," as employed in Section 561.15, Florida Statutes, does encompass a charge and conviction for conspiracy to possess marijuana. It was clearly the intent of the Legislature to exclude those involved in any way with narcotics from the field of alcoholic beverages.

WHEREFORE, and for the above-cited reasons, I, Charles A. Nuzum, Director of the Division of Alcoholic Beverages and Tobacco, Department of Business Regulation, of the State of Florida, do hereby reverse, in part, the Recommended

Order of the Hearing Officer and to the extent specified in this Order, substitute the agency's conclusions of law, and make the following final order.

FINAL ORDER

It is hereby ORDERED that License No. 62-1311, Series 2-COP, issued to and held by Keith Nothnagel t/a The Inn Between, be and hereby is

REVOKED.

DONE AND ORDERED this 31st day of October, 1979.

CHARLES A. NUZUM, DIRECTOR

Division of Alcoholic Beverages and Tobacco

Department of Business Regulation State of Florida

COPIES FURNISHED:

Mary Jo M. Gallay Staff Attorney

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304

Waldense D. Malouf, Esquire

325 South Garden Avenue Clearwater, Florida 33516

Docket for Case No: 79-001287

Orders for Case No: 79-001287