STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM E. MOREY, d/b/a )

MOREY'S RESTAURANT, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1291

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was hold before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on July 20, 1979, at Room 702, Park Trammell Building, 1313 Tampa Street, Tampa, Florida.

APPEARANCES

For Petitioner: William E. Morey, d/b/a

Morey's Restaurant 4101 North 66th Street

St. Petersburg, Florida 33709

For Respondent: Mary Jo M. Gallay, Esquire

Staff Attorney

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

ISSUE

This case concerns the application of William E. Morey, who does business as Morey's Restaurant, to acquire a new series 2-COP beverage license from the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, in which the Respondent has denied the license application on the grounds that the granting of such a license would be contrary to provisions of Section 561.42, Florida Statutes, and Rule 7A-4.18, Florida Administrative Code. These provisions of the Florida Statutes and Florida Administrative Code deal with the prohibition of a financial interest directly or indirectly between distributors of alcoholic beverages and vendors of alcoholic beverages.

FINDINGS OF FACT

1. The Petitioner, Willian E. Morey, applied to the State of Florida, Departent of Business Regulation, Division of Alcoholic Beverages and Tobacco, for the issuance of series 2-COP alcoholic beverage license. By letter dated,

   January 23, 1979, the Director of the Division of Alcoholic Beverages and Tobacco denied the application based upon the belief that such issuance wood violate the provisions of Section 561.42, Florida Statutes, and Rule 7A-4.18, Florida Administrative Code.

   
   

2. The pertinent provision of Section 561.42, Florida Statutes, states:

   
   

   561.42 Tied house evil; financial aid and assistance to vendor by manufacturer or distributor prohibited; procedure for en- forcement; exception.--

   (1) No licensed manufacturer or distributor of any of the beverages herein referred to shall have any financial interest, directly or indirectly, in the establishment or business of any vendor licensed under the Beverage Law, nor shall such licensed manu- facturer or distributor assist any vendor by any gifts or loans of money or property of any description or by the giving of rebates of any kind whatsoever.

   * * *

   
   

   In keeping with the general principle announced in Section 561.42, Florida Statutes, the Respondent has enacted Rule 7A-4.18, Florida Administrative Code, which states:

   
   

   7A-4.18 Rental between vendor and distri- butor prohibited. It shall be considered a violation of Section 561.42, Florida Sta- tutes, for any distributor to rent any property to a licensed vendor or from a licensed vendor if said property is used, in whole or part as part of the licensed premises of said vendor or if said property is used in any manner in connection with said vendor's place of business.

   
   

3. The facts in this case reveal that William E. Morey leases the premises, for which he has applied for a license, from Anthony Distributors, Inc., of 1710 West Kennedy Boulevard, Tampa, Florida. Anthony Distributors, Inc., is the holder of a J-DBW license to distribute alcoholic beverages in the State of Florida. This license is held with the permission of the State of Florida, Division of Alcoholic Beverages and Tobacco. Consequently, the issuance of a series 2-COP license to William E. Morey at a time when he is leasing the licensed premises from a distributor of alcoholic beverages, namely, Anthony Distributors, Inc., would be in violation of Section 561.42, Florida Statutes, and Role 7A-4.18, Florida Administrative Code.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Based upon a full consideration of the facts herein, it is concluded as a matter of law that the Director of the Division of Alcoholic Beverages and Tobacco was correct in denying William E. Morey's application for a series 2-COP

beverage license for operation at the premises, 4101 66th Street North, St. Petersburg, Florida. The Director's action was proper because this premises is leased from Anthony Distributors, Inc., the holder of a series J-DBW alcoholic beverage distributorship license issued by the State of Florida, and to grant Morey's request for license would violate the provisions of Section 561.42, Florida Statutes, and Role 7A-4.18, Florida Administrative Code.

RECOMMENDATION

It is recommended that the Petitioner, William E. Morey's application for a series 2-COP beverage license be DENIED.

DONE AND ENTERED this 10th 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:

Willian E. Morey

d/b/a Morey's Restaurant 4101 North 66th Street

St. Petersburg, Florida 33709

Mary Jo M. Gallay, Esquire Staff Attorney

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

Docket for Case No: 79-001291

Orders for Case No: 79-001291