STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROTHERS II RESTAURANT & PIZZA, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2371

) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Lauderhill, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on December 19, 1979. At the hearing the parties were represented by counsel:

APPEARANCES

For Petitioner: Gordon Brydger, Esquire

1930 Tyler Street

Hollywood, Florida 33020

For Respondent: Harold F.X. Purnell, Esquire

725 South Bronough Street Tallahassee, Florida 32301

After petitioner applied for a beverage license, respondent disapproved the application by letter dated September 26, 1979, for the stated reason: "Application failed to list all persons having an interest in the business."

The letter disapproving the application cited Section 561.17, Florida Statutes.

FINDINGS OF FACT

1. Walter and Marion Licausi are the parents of Joseph Antony "Sonny" Licausi. Walter Licausi is a contractor who works with a partner, under the name "Supreme Crafts." Among other things, Sonny Licausi, who was 39 years of age at the time of the hearing, performs as a professional musician, under the name of "Sonny Allegro." More than 12 years ago, Sonny Licausi was convicted of a felony.

   
   

2. In recent years, Joseph Licausi and his then wife left south Florida, travelled to Gainesville, Georgia, and started a restaurant that seated 60 to 80 persons. Walter and Marion Licausi contributed some capital to this venture. When Joseph decided to accept an offer from the U.S. Army to tour Europe entertaining, his parents agreed to take over the restaurant. In June of 1977, Joseph transferred his interest in the business to his parents and they undertook all of the business' liabilities. After Joseph Licausi left for the tour, Marion Licausi ran the business. Walter and Marion Licausi lived off the

   income from this restaurant for three months. They sold it in 1979, to Doug Byers for some twenty-four thousand dollars. The senior Licausis retained the net proceeds of the sale; Joseph Licausi realized nothing from the sale.

   
   

3. In the spring of 1979, Walter, Marion and Joseph Licausi were once again resident in Pembroke Pines, Florida. Joseph Licausi heard that a place called Franco's was for sale, and approached Norma Shively who took ten dollars for all the equipment still on the premises. The landlord agreed to lease the property to Joseph Licausi, who then spent one or two thousand dollars of his money on renovating what became petitioner Brothers II Restaurant & Pizza. Another one or two thousand dollars for renovation was generated by the business. As an outgrowth of the sale of the restaurant in Georgia, Walter and Marion Licausi had repossessed four-year-old equipment which had been worth seven thousand dollars when new. This equipment was installed at Brothers II Restaurant & Pizza.

   
   

4. On or about June 28, 1979, Joseph Licausi applied to petitioner for a beverage license for Brothers II Restaurant & Pizza. He was told that he was disqualified for licensure on account of his felony conviction. On June 23, 1979, Marion Licausi signed petitioner's application for beverage license, disapproval of which eventuated in the present proceedings. On July 27, 1979, a bill of sale for one hundred dollars signed by "Joseph Allegro" was notarized, reflecting the sale to Marion Licausi of the equipment Joseph Licausi had bought from Norma Shively.

   
   

5. At the time of the hearing, and regularly since the inception of the Brothers II Restaurant & Pizza, except for a two and one half to three month period during which she was incapacitated, Marion Licausi put in ten-hour days at the restaurant. She arrives between ten and eleven o'clock in the morning, puts money in the cash register, and begins cooking and answering the telephone. Twice weekly she goes to Fran's Produce Market. She also calls on a butcher; the other suppliers deliver to the restaurant. At two or three o'clock in the afternoon, she goes home to take care of matters there, but she returns to the restaurant between five and six o'clock and stays until closing, after which she goes to the First National Bank of Hollywood to deposit the day's proceeds. At home she tabulates receipts for the day which sometimes keeps her up until two o'clock in the morning. Joseph Licausi also works at the restaurant as does Walter Licausi; when he is between contracting jobs. Joseph Licausi's hours vary to accommodate his work as a musician and for other reasons. Generally, he is at the restaurant during the middle of the day to manage in his mother's absence. He is paid a salary of $100.00 weekly. While Marion was incapacitated, Joseph pretty much ran the business.

   
   

6. Originally, licensees for the restaurant and agreements with the telephone and other utility companies and the like were all in Joseph Licausi's name. The original lease, however, was signed by Marion Licausi. Prior to December 17, 1979, the telephone and other utilities were in Joseph's name, but since that time, they have been in Marion's name. In the beginning, Joseph Licausi added his name to an existing checking account for the restaurant in his own name, and still later, Marion Licausi's name was added to the account. At the time of the hearing, Joseph Licausi had authority to draw against the restaurant's only checking account.

   CONCLUSIONS OF LAW

   
   

7. In the letter disapproving petitioner's application, respondent cites Section 561.17, Florida Statutes. In pertinent part, this statute provides:

   
   

   If . . . any person interested with the applicant either directly or indirectly in the business is not qualified, the application shall be denied by the Division. Section 561.17(1), Florida Statutes (1979).

   
   

   In the present case, Joseph Antony Licausi is disqualified by virtue of a felony conviction within the last fifteen years. Section 561.15(2), Florida Statutes (1979).

   
   

8. Both at the time petitioner's application was submitted and at the time of the hearing, Joseph Licausi had a pecuniary interest in petitioner. Even though he divested himself of all interest in the restaurant equipment (shortly after Marion Licausi filed application), and even though the renovations he helped to finance will ultimately inure to the landlord's benefit, and are available to Marion Licausi, as lessee, in the interim, Joseph Licausi still shared control with Marion Licausi over the restaurant's checking account, at the time of the hearing.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent deny petitioner's application for a beverage license, without prejudice to the refiling of the same in the event that Joseph Licausi relinquishes control of the checking account.

DONE and ENTERED this 17th day of January, 1980, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Gordon Brydger, Esquire 1930 Tyler Street

Hollywood, Florida 33020

Harold F.X. Purnell, Esquire General Counsel

Department of Business 725 South Bronough Street

Tallahassee, Florida 32301

Docket for Case No: 79-002371

Orders for Case No: 79-002371