STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PRICE CANDY COMPANY, INC., t/a ) ST. JAMES PLACE, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1577

) STATE OF FLORIDA, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted on November 27, 1979, in Jacksonville, Florida.

APPEARANCES

For Petitioner: James M. Bailey

Area Supervisor

Price Candy Company, Inc.

117 West Duval Street Jacksonville, Florida

For Respondent: Daniel C. Brown, Esquire

Staff Attorney

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

ISSUE

This case concerns the entitlement of the Petitioner, Price Candy Company, Inc., trading as St. James Place, to be granted a new Series 2-COP beverage license from the State of Florida, Division of Alcoholic Beverages and Tobacco.

FINDINGS OF FACT

1. Beginning on June 13, 1978, the Petitioner, Price Candy Company, Inc., began the process of applying for a new Series 2-COP beverage license to be issued by the State of Florida, Division of Alcoholic Beverages and Tobacco. This license was to be issued for a premises located at 117 West Duval Street, Jacksonville, Duval County, Florida.

   
   

2. The establishment for which this license is intended is a restaurant located in a building known as the May Cohens Building. The Petitioner leases a portion of that building from May Cohens and the balance of the building which constitutes the structure of the prospective licensed area, is controlled by May

   Cohens. The part of the building controlled by the Petitioner as a street entrance into the dining room area of the restaurant and an entrance from the May Cohens part of the building, which is an interior entrance to the restaurant. These entrances may be seen in examining the Respondent's Exhibit No. 1 admitted into evidence, which is the Petitioner's sketch of the prospective licensed premises which was submitted to the Respondent as a part of the application. Within this diagram are several pencilled changes to the sketch which represent the current state of the building showing an extension of a wall, thereby closing off any direct access from May Cohens to the restrooms associated with Petitioner's restaurant.

   
   

3. On May 30, 1979, the Director of the State of Florida, Division of Alcoholic Beverages and Tobacco indicated his intent to deny the application stated that the reason was "Premises to be licensed is connected to other areas over which the applicant will have no dominion or control." As authority for that statement the Director referred to Subsection 561.01(11), Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. The Respondent, State of Florida, Division of Alcoholic Beverages and Tobacco has denied the Petitioner's application for a new Series 2-COP beverage license premised solely on the belief that the issuance of such a license would be contrary to the provisions of Subsection 561.01(11), Florida Statutes. That provision states:

   
   

   (11) 'Licensed premises' means not only rooms where alcoholic beverages are stored or

   sold by the licensee, but also all other rooms in the building which are so closely connected therewith as to admit of free passage from drink parlor to other rooms over which the licensee has some dominion or control and shall also include all of the area embraced within the sketch, appearing on or attached

   to the application for the license involved and designated as such on said sketch, in addition to that included or designated by general law.

   
   

   The Respondent reads the above-cited provision to prohibit the issuance of a license because it creates a prohibition against the issuance of a license to anyone whose prospective licensed premises is connected to other areas over which the applicant would not have dominion or control. This opinion and interpretation of Subsection 561.01(11), Florida Statutes, is not correct. The purpose of that provision is to identify by definition the parameters of the licensed premises and the use of the terms "dominion" and "control" refer to other portions of the licensed premises outside the drink parlor proper. These terms do not relate to a requirement that the prospective licensee have "dominion" and "control" over the entire structure within which the licensed premises may be found. Therefore, it is possible to be granted an alcoholic beverage license in a situation wherein the prospective licensee only controls a portion of the structure which houses the licensed premises. There are no other provisions within the Beverage Laws or the Florida Administrative Code which create the necessity for the prospective licensee to have "dominion" and

   "control" over the entire structure within which his licensed premises is to be found, as a precondition to the issuance of that license. Consequently, this ground for denying the license is inviable.

   
   

6. The Respondent has suggested no further reason for denying this application and it is concluded as a matter of law that the Petitioner, Price Candy Company, Inc., trading as St. James Place, should be entitled to the issuance of a new Series 2-COP beverage license.

RECOMMENDATION

It is recommended that the Petitioner, Price Candy Company, Inc., trading as St. James Place, be granted a new Series 2-COP beverage license.

DONE AND ENTERED this 19th day of December, 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:

James M. Bailey, Area Supervisor Price Candy Company, Inc.

117 West Duval Street Jacksonville, Florida 32204

Daniel C. Brown, Esquire Staff Attorney

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

Docket for Case No: 79-001577

Orders for Case No: 79-001577