STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH SMITH d/b/a FOUR ) ROSES BEER AND WINE PARLOR, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2293

)

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Miami, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on December 11, 1979.

APPEARANCES

For Petitioner: Petitioner appeared on his own behalf. For Respondent: Harold F.X. Purnell, Esquire

General Counsel

Department of Business Regulation 725 South Bronough Street Jacksonville, Florida 32201

After respondent applied to petitioner for a beverage license, Charles A. Nuzum, respondent's director, wrote petitioner on October 23, 1979, stating that petitioner's application was disapproved because petitioner's "arrest history is inactive of a lack of the required good moral character," citing Section 561.15, Florida Statutes (1977).

FINDINGS OF FACT

1. On August 15, 1979, petitioner Joseph William Smith executed a personal questionnaire in support of his application for a beverage license. On sheets of paper attached to the application, he listed some, but not all, of the occasions on which he was arrested.

   
   

2. At one time respondent lived in Savannah, Georgia, where he was arrested at least as early as July of 1956. An arrest on July 10, 1958, eventuated in a two month stay in jail as punishment for armed robbery. On November 18, 1967, petitioner was arrested for threatening somebody with a weapon, an accusation of which he was subsequently found not guilty. In 1968, he was sentenced to 30 days for shoplifting.

   
   

3. Petitioner was arrested for gambling with dice in January of 1971. He was arrested again on May 26, 1972. In June of 1973, he was found not guilty of

   robbery. Also in 1973, he was placed on probation for buying and receiving stolen property. In June of 1975, petitioner was found not guilty of murder. He was found not guilty of possession of marijuana in March of 1978.

   
   

4. Petitioner lives in one of the worst neighborhoods in the United States. The uncontroverted testimony was that a person could be arrested simply for standing on a street corner.

   
   

   CONCLUSIONS OF LAW

   
   

5. Within ninety days of receipt of petitioner's application for a beverage license, respondent disapproved the application and "state[d] with particularity the grounds or basis for the . . . denial." Section 120.60(2), Florida Statutes (1977). The stated grounds were that petitioner's "arrest history is indicative of a lack of the required good moral character." As the applicant for a beverage license, petitioner had the burden to demonstrate good moral character within the meaning of Section 561.15(1), Florida Statutes (1977). Even assuming that a series of arrests has no bearing, legally or factually, on a person's moral character, the grounds for denial stated by respondent put petitioner on notice that he had not established good moral character to respondent's satisfaction. At the hearing, petitioner did not meet his burden to show that he had the requisite good moral character.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent deny petitioner's application for a beverage license. DONE AND ORDERED this 3rd day of January, 1980, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

Telephone: (904) 488-9675

COPIES FURNISHED:

Harold F.X. Purnell, Esq. General Counsel Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Mr. Joseph W. Smith 818 N.W. 2nd Avenue Miami, Florida 33136

Docket for Case No: 79-002293

Orders for Case No: 79-002293