STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELVIN E. SMITH t/a )

MELVIN'S EXXON, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2217

) 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: Melvin E. Smith

5057 U.S. 1, North

Jacksonville, Florida

For Respondent: Daniel C. Brown, Esquire

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

ISSUE

The Petitioner, Melvin E. Smith, has submitted a request to the Respondent, State of Florida, Division of Alcoholic Beverages and Tobacco, to issue him a new Series 2-APS beverage license and this request has been denied. The issue to be resolved by this Order is the question of the Petitioner's entitlement to the subject license.

FINDINGS OF FACT

1. The Petitioner, Melvin E. Smith, who trades as Melvin's Exxon in a location at 5057 U.S. 1, North, Jacksonville, Duval County, Florida, has applied for a new Series 2-APS beverage license. On July 5, 1979, the Director of the State of Florida, Division of Alcoholic Beverages and Tobacco, replied to the request for license by denying that license application, with the stated grounds for denial being the alleged indication of lack of good moral character on the part of the Petitioner; specifically, a felony conviction within the last fifteen (15) years and beverage law conviction within the past five (5) years, which made the applicant unqualified per Section 561.15, Florida Statutes.

2. The testimony in the course of the hearing revealed that in 1966 the Petitioner was convicted of breaking and entering, an offense against the laws of United States and a felony. Furthermore, on May 29, 1975, in the County Court of Duval County, Florida, Criminal Division, the Petitioner was adjudged guilty of the offense of refusing to allow a search of the premises in violation of Section 562.41, Florida Statutes, and received a fine of $50.00 together with

   $2.00 court cost. See Respondent's exhibit No. 1 admitted into evidence, which is a copy of the Judgment and Sentence in that matter. Section 562.41, Florida Statutes, is a part of the Beverage Law, Enforcement Section.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

4. In response to the Petitioner's request for a new Series 2-APS beverage license, the Director of the State of Florida, Division of Alcoholic Beverages and Tobacco has denied that request because the Petitioner was not felt to meet the qualifications set forth in Section 561.15, Florida Statutes. The Director was correct in his decision.

   
   

5. This legal conclusion was reached by comparing the evidential facts in this case with the qualification statements found in Subsections 561.15(1) and (2), Florida Statutes, which indicate the following:

   
   

   1. Licenses; qualifications required.--

      1. Licenses shall be issued only to persons of good moral character, who are not less than

         21 years of age. Licenses to corporations shall be issued only to corporations whose officers are of good moral character and not less than 21 years of age. There shall be no exceptions from the license taxes herein provided to any person, association of persons or corporation, any law to the contrary notwithstanding.

      2. No license under the Beverage law shall be issued to any person who has been convicted within the last past 5 years of any offense against the beverage laws of this state, the United States or any other state, or 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 who has been convicted in any other state or the United States, or any offense designated as a felony by such 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.

   While it would at first appear that the Petitioner has had sufficient time to be rehabilitated following his conviction of breaking and entering by United States District Court in 1966, such that this act could not, standing alone, demonstrate a lack of good moral character on the part of the Petitioner, the subsequent Beverage Law conviction of refusing to allow search of his premises per Section 562.41, Florida Statutes, which took place as recently as May 29, 1975, leads to the conclusion that the Petitioner still is without good moral character as defined in Section 561.15, Florida Statutes. For that reason, the Petitioner is not qualified to hold a beverage license.

   
   

6. There are two other independent grounds for denying the Petitioner's request for a license. The Petitioner has been convicted of a felony within the last fifteen (15) years by the offense of breaking and entering which occurred in 1966 contrary to the laws of the United States. He also has been convicted in the last five (5) years of an offense against the Beverage laws of the State of Florida, in that the Petitioner was convicted of the offense of refusing to allow a search of his premises in violation of Section 562.41, Florida Statutes, this offense occurring on May 29, 1975.

   
   

7. In summary, the petitioner lacks good moral character within the meaning of Subsection 561.15(1), Florida Statutes; the Petitioner has been convicted within the last fifteen (15) years of a felony against the laws of the United States within the meaning of Subsection 561.15(2), Florida Statutes; and the Petitioner has been convicted within the last five (5) years of an offense against the Beverage laws of the State of Florida within the meaning of Subsection 561.15(2), Florida Statutes, and for each of these reasons should be denied a beverage license.

RECOMMENDATION

It is recommended that the Petitioner, Melvin E. Smith's request for a new Series 2-APS beverage license be DENIED.

DONE AND ENTERED this 18th 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:

Daniel C. Brown, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Melvin E. Smith 5057 U.S. 1 North

Jacksonville, Florida

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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELVIN E. SMITH t/a MELVIN'S EXXON,

Petitioner,

vs. CASE NO. 79-2217

STATE OF FLORIDA, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO,

Respondent.

/

FINAL ORDER

The Petitioner, Melvin E. Smith, who trades as Melvin's Exxon in a location at 5057 U.S. 1 North, Jacksonville, Duval County, Florida, made application for a new Series 2-APS Beverage License. On July 5, 1979 the Director of the State of Florida, Department of Business Regulation , Division of Alcoholic Beverages and Tobacco, denied that license application on the grounds that the applicant did not possess good moral character and had been convicted of a felony within the preceding fifteen (15) years and a beverage law violation within the preceding five (5) years, 561.15, Florida Statutes. The Petitioner requested a hearing upon his license denial, which was granted. Pursuant to Notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. The hearing was conducted on November 27, 1979, in Jacksonville, Florida. At that hearing the Petitioner appeared and the Department of Business Regulation appeared and was represented by counsel.

ISSUE

The Petitioner, Melvin E. Smith, has submitted a request to the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, to issue him a Series 2-APS Beverage License and this request has been denied. Issue to be resolved by this order is the question of the Petitioner's entitlement to the requested license.

FINDINGS OF FACT

1. The evidence adduced in the course of the hearing revealed, and the Hearing Officer so found, that in 1966, the Petitioner was convicted of breaking and entering, an offense against the laws of the United States and a felony thereunder. Moreover, on May 29, 1975, in the County Court of Duval County, Florida, Criminal Division, the Petitioner was judged guilty of the offense of refusing to allow a search of the premises in violation of Section 562.41, Florida Statutes, a portion of the Beverage License Law, and received a fine of

   Fifty-Dollars ($50.00), together with Two-Dollars ($2.00) Court Cost. See response Exhibit No. 1 admitted into evidence, and attached hereto.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings appropriately exercised its jurisdiction over the subject matter and the parties to this action.

   
   

3. The decision of the Director of the Division of Alcoholic Beverages and Tobacco of the Department of Business Regulations, of the State of Florida to deny the Petitioner's request for a new Series 2-APS Beverage License was proper, in as much the Petitioner did not meet the qualifications found in Section 561.15, Florida Statutes.

   
   

4. This legal conclusion was reached by comparing the evidential facts in this case with the qualifications found in Section 561.15 (1) and (2), Florida Statutes, which states as follows:

   
   

   1. Licenses shall be issued only to persons of good moral character, who are not less than

      21 years of age. Licenses to corporations shall be issued only to corporations whose officers are of good moral character and not less than 21 years of age. There shall be no exceptions from the license taxes herein provided to any person, association of persons or corporation, any law to the contrary notwithstanding.

   2. No license under the Beverage law shall be issued to any person who has been convicted within the last past 5 years of any offense against the beverage laws of this state, the United States or any other state, or 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 who has been convicted in any other state or the United States, or any offense designated as a felony by such 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.

While it would at first appear that the Petitioner has had sufficient time to be rehabilitated following his conviction of breaking and entering by the United States District Court in 1966, such that this act could not, standing alone, demonstrate a lack of good moral character on the part of the Petitioner, the subsequent Beverage Law conviction of refusing to allow search of his premises under Section 562.41, Florida Statutes, which took place as recently as May 29, 1975, leads to the conclusion that the Petitioner is without good moral

character as defined in Section 561.15, Florida Statutes. For that reason, the Petitioner is not qualified to hold a Beverage License. In addition, there are independent grounds for denying the Petitioner's request for a license. The Petitioner has been convicted of a felony within the last Fifteen (15) years, by the offense of breaking and entering which occurred in 1966 contrary to the laws of the United States. He has been convicted in the last Five (5) years of an offense against the Beverage Laws of the state, in that Petitioner was convicted of the offense of refusing to allow a search of his premises in violation of Section 562.41, Florida Statutes, this offense occurring on May 29, 1975.

In summary, the Petitioner lacks good moral character within the meaning of Section 561.15 (1), Florida Statutes; The Petitioner has been convicted within the last Fifteen (15) years of a felony against the laws of the United States within the meaning of Section 561.15 (2), Florida Statutes; and the Petitioner has been convicted within the last Five (5) years of an offense against the Beverage Laws of the State of Florida within the meaning of Section 561.15(2), Florida Statutes, and for each of these reasons should be denied a Beverage License. The hearing examiner has recommended upholding the denial of Beverage License.

Accordingly, it is ordered that the Petitioner, Melvin E. Smith's request for a new Series 2-APS Beverage License be and remained denied.

DONE AND ORDERED THIS 27TH DAY OF DECEMBER 1979. IN TALLAHASSEE, FLORIDA.

CHARLES A. NUZUM, DIRECTOR

Department of Business Regulation Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

(904) 488-7891

Copies Furnished To:

Daniel C. Brown

Deputy General Counsel

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Melvin E. Smith t/a MELVIN'S EXXON

5057 U.S. 1 North

Jacksonville, Florida

Mr. Charles C. Adams Hearing Examiner

101 Collins Building

Division of Administrative Hearings Tallahassee, Florida 32301

Docket for Case No: 79-002217

Orders for Case No: 79-002217