STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FOXIE'S OF ORLANDO, INC., )
d/b/a FOXIE'S LOUNGE, )
)
Petitioner, )
)
vs. ) CASE NO. 80-923
) 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 in the offices of the State of Florida, Division of Alcoholic Beverages and Tobacco, 5600 Diplomat Circle, Orlando, Florida, on June 3, 1980.
APPEARANCES
For Petitioner: H. Franklin Robbins, Jr., Esquire
and Tanya M. Plaut, Esquire
112 South Lake Avenue Orlando, Florida 32801
For Respondent: James N. Watson, Jr., Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
ISSUE
The issue presented here concerns the entitlement of Foxie's of Orlando, Inc., d/b/a Foxie's lunge to change the corporate officers listed with the State of Florida, Division of Alcoholic Beverages, in License No. 58-1133, Series 2- COP, by substituting the name Carol Valdyke for Wiley U. Pridgen.
FINDINGS OF FACT
The Petitioner, Foxie's of Orlando, Inc., is a Florida corporation owned by Carol Valdyke. She is also the President, Secretary and Treasurer of the corporation. Foxie's Lounge of Orlando, Inc., is the record holder of License No. 58-1133, Series 2-COP, which was issued by the Respondent, State of Florida, Division of Alcoholic Beverages and Tobacco. This agency, among other functions, is responsible for the licensure of certain entities who wish to sell alcoholic beverages in the State of Florida.
This action arises from the attempt of Foxie's Lounge of Orlando, Inc., to gain the permission of the Respondent to change its corporate officers from
Wiley U. Pridgen to Carol Valdyke and the subsequent rejection of that effort, followed by a request by the licensee to be granted a hearing. The Director of the State of Florida, Division of Alcoholic Beverages and Tobacco, asked that the matter be heard by the State of Florida, Division of Administrative Hearings, and there ensued a de novo hearing on June 3, 1980.
The facts reveal that License No. 58-1133, Series 2-COP, was held by Wiley U. Pridgen on October 5, 1979. At that time, Pridgen asked the Respondent to grant a transfer of the license from Pridgen as an individual to the corporation, Foxie's of Orlando, Inc. (From the record, it is not clear whether the corporation had been formed effective October 5, 1979; however, it was established that the corporation was in existence on October 31, 1979.)
On October 31, 1979, in a transaction which Wiley U. Pridgen, as 100 percent owner, stockholder, President and Secretary of the corporation entered into with Carol Valdyke, the corporation was sold to Valdyke and she became the
100 percent owner. At the time she became the President, Secretary and Treasurer of the corporation, and Pridgen signed over the outstanding shares of stock in favor of Valdyke. Terms and conditions of this sale may be found in the Petitioner's Exhibit 6 and Petitioner's Composite Exhibit 9 admitted into evidence.
Following the sale, Pridgen and Valdyke went to the offices of the Division of Alcoholic Beverages and Tobacco in Orlando and indicated to a licensing official, Robert Bishop, a beverage officer, that Valdyke was assuming the corporation, Foxie's of Orlando, Inc. On this occasion, Valdyke filled out a personal questionnaire. A copy of the personal questionnaire may be found as Petitioner's Exhibit 4 admitted into evidence. Pridgen had previously told Bishop that he intended to transfer the corporate license to Valdyke after the corporation had been formed and subsequent to the time that the license had been transferred from Pridgen's name individually into the corporate name, Foxie's of Orlando, Inc., and the October 31, 1979, events were in furtherance of that design.
On November 1, 1979, a temporary license in behalf of Foxie's of Orlando, Inc., d/b/a Foxie's Lounge, 2915 South Orange Blossom Trail, Orlando, Florida, was issued in License No. 58-1133, Series 2-COP. This was in response to the October 5, 1979, application for transfer of license from Wiley U. Pridgen to Foxie's of Orlando, Inc. A copy of that temporary license may be found as Petitioner's Exhibit 11 admitted into evidence.
A permanent license was issued for the benefit of Foxie's of Orlando, Inc., effective November 26, 1979, related to License No. 58-1133, Series 2-COP. This license authorized the sale of alcoholic beverages at 2015 South Orange Blossom Trail, Orlando, Florida. A copy of the license may be found as Petitioner's Exhibit 12 admitted into evidence.
On December 7, 1979, the Respondent received final information from Carol Valdyke, the owner of Foxie's of Orlando, Inc., necessary to effectuate her request to become the President, Secretary and Treasurer and listed owner/stockholder of the license holder, Foxie's of Orlando, Inc., for purposes of complying with Respondent's regulations related to these changes. The materials associated with that request included the Certificate of Incumbency and Declaration of Stock Ownership, a copy of which may be found as the Petitioner's Exhibit 5 admitted into evidence. At that point in time, from the facts presented in the hearing, it is concluded that the agency was aware of the
sale of the corporation to Valdyke, as reflected in Petitioner's Composite Exhibit 9, which features the Promissory Note and Security Agreement.
A licensee application investigation was commenced after the case had been assigned to an employee within the agency on December 7, 1979. The investigation was completed on January 16, 1980, as established through a copy of the license application investigation which may he found as Petitioner's Exhibit 7 admitted into evidence. The only reservation about granting the request which was made in the investigative report was that comment found in Item 21. This item is a question which solicits comments from the investigator on the subject of reasons for approval or disapproval and, in responding, the comment "Yes" was made and by explanation stated, "See administrative case number 29383 pending".
This reference in Item 21 to Petitioner's Exhibit 7 concerning case number 29383, means case number 29383-A, which is a Notice to Show Cause/Administrative Complaint containing allegations of October 31, 1979, and November 7, 1979, which had been placed against Foxie's of Orlando, Inc., License No. 58-1133, Series 2-COP. The exact date of the preparation of the allegations as set forth in a Notice to Show Cause document was not established in the hearing. It was shown that the Notice to Show Cause/Administrative Complaint and Notice of Informal Conference was served on Wiley U. Pridgen on March 17, 1980. A copy of the Notice to Show Cause and Notice of Informal Conference together with the statement of service may be found as the Petitioner's Composite Exhibit 3 admitted into evidence.
Case DABT number 29383-A is now pending before the Division of Administrative Hearings as DOAH No. 80-1039.
There had been another case, DABT number 29332-A, which had been placed against Foxie's of Orlando, Inc., License No. 58-1133, Series 2-COP. This case was premised upon allegations of violations which occurred in May,
1979, and shows service of the Notice to Show Cause/Administrative Complaint and Notice of Informal Conference on January 2, 1980. A copy of this Notice to Show Cause/Administrative Complaint and Notice of Informal Conference may be found as Petitioner's Composite Exhibit 2 admitted into evidence. This case was subsequently dismissed by order of the Director of the Division of Alcoholic Beverages and Tobacco dated April 7, 1980, a copy of which order may be found as Petitioner's Exhibit 1 admitted into evidence.
Sometime between December 7, 1980, the completion date of Carol a1dyke's request for change of officers and ownership/stockholder, and March 7, 1980, the Director of the Division of Alcoholic Beverages and Tobacco issued a memorandum to the corporation, Foxie's Lounge of Orlando, Inc., denying the request to change the officers. This relates to the change of officers from Wiley U. Pridgen to Carol Valdyke. No mention was made in the course of the denial of the application about the subject of the change of ownership/stockholder. A copy of the memorandum of denial may be found as the Petitioner's Exhibit 10 admitted into evidence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.
Following the Petitioner, Foxie's of Orlando, Inc., d/b/a Foxie's Lounge's request to change the officers of the corporation from Wiley U. Pridgen
to Carol Valdyke and to change the record owner/shareholder from Wiley U. Pridgen to Carol Valdyke, the Director, Division of Alcoholic Beverages and Tobacco disapproved the request to change officers prior to March 7, 1980, stating as a reason for the denial, "Administrative Action is pending and undetermined against the subject license," and citing as authority Chapter 559, Florida Statutes, and Section 561.32, Florida Statutes. Reference was not made to the case number of the pending administrative action which the Director had in mind in offering his denial; consequently, that suggests the possibility that it could refer to DABT number 29332-A or DABT number 29383-A, or both. This opinion is held, notwithstanding the investigative materials which indicate that DABT number 29383-A was the case upon which concern was expressed as being a possible basis for denying the subject application for change. However, the dilemma is solved because DABT number 29332-A has been removed as a viable basis for denying the request for change of officers alluded to in the Director's memorandum, in view of his Order of Dismissal dated April 7, 1980, entered in DABT number 29332-A.
That leaves for consideration the question of whether the pending action in DABT number 29383-A (DOAH No. 80-1039) which is yet undetermined may serve as a basis for denying the requested change of officers.
An analysis of that provision of Chapter 559, Florida Statutes, which the Director has offered in support of his action denying the request to change officers leads to the conclusion that this chapter would not support the Director in his action. There are only two actions within Chapter 559 which might have application to tie question of the change of officers. The first is that provision found in Part VI, in particular Section 559.79, Florida Statutes. If the Director had contended that some element of this provision had not been complied with and stated this as a grounds for denying the license, then it would be necessary to address that concern; however, nothing in the course of the hearing nor set forth in the memorandum of the Director stating the denial, which memorandum establishes the parameters of this inquiry, would demonstrate the relevancy of Section 559.79, Florida Statutes.
A second provision that might serve as a basis for denial is Section 559.79, Florida Statutes. Likewise, this provision does not have application to the dispute.
The next citation of authority offered in support of the Director's denial of the request is as found in Section 561.32, Florida Statutes, which states in pertinent part:
561.32 Transfer of licenses.--
(1) Licenses issued under the provisions
of the Beverage Law shall not be transferable except as follows: When a licensee shall have made a bona fide sale of the business which
he is so licensed to conduct he may obtain a transfer of such license to the purchaser of said business, provided the application of
the purchaser shall be approved by the division in accord with the same procedure provided for in ss. 561.17, 561.18, and 561.19, in the case of issuance of new licenses. However, no one shall be entitled as matter of right to a transfer of a license when revocation or suspension proceedings have been instituted
against a licensee, and transfer of license
in any such case shall be within the discretion of the division. ...
This provision creates the discretion in the Director of the Division of Alcoholic Beverages and Tobacco to deny the transfer of the license when revocation or suspension proceedings have been instituted against the licensee. The comment on the question of transfer of the license would include the discretion to reject the requested change of officers. It then becomes a question of whether the revocation or suspension proceedings as established in the Notice to Show Cause/Administrative Complaint, DABT number 29383-A (DOAH No. 80-1039) had been instituted against the licensee at the time the request was made for change of officers, providing that the Director was timely in acting on the request.
The request for change of officers was completed and received by the agency on December 7, 1979. Under the circumstances, the agency had ninety (90) days after receipt of the request for change of officers to act upon that request. See Subsection 120.60(2), Florida Statutes. Prior to March 7, 1980, the agency took action denying the change of officers and this was within the ninety (90) day period.
Relating back to the stated grounds for denial and the professed authority found in Section 561.32, Florida Statutes, at that point where the Director entered his denial, disciplinary action had not been instituted against the licensee by the advent of Notice to Show Cause/Administrative Complaint, DABT number 29383-A (DOAH 80-1039) 1/ It was not instituted until March 17, 1980, when the Notice to Show Cause/Administrative Complaint and Notice of Informal Conference was served on the licensee. This institution of agency proceeding occurred at a time subsequent to the period within which the Director was required to evaluate and approve or deny the change of officer request. Consequently, no revocation or suspension proceedings had been instituted against the licensee, Foxie's Lounge of Orlando, Inc., at the time the Director issued his memorandum denying the request for change of officers and when the proceedings for revocation or suspension had been instituted it was beyond the period of time in which the Director could have acted to deny the license on the basis of discretion reposed in him pursuant to Subsection 561.32(1), Florida Statutes.
Based upon the facts as found and the discussion set out above, it is concluded as a matter of law that the Petitioner, Foxie's Lounge of Orlando, Inc., d/b/a Foxie's Lounge, is entitled to change the corporate officers from Wiley U. Pridgen to Carol Valdyke in License No. 58-1133, Series 2-COP.
It is RECOMMENDED that Petitioner, Foxie's Lounge of Orlando, Inc., d/b/a Foxie's Lounge, holder of License No. 58-1133, Series 2-COP, be allowed to change the officers reflected in its license from Wiley U. Pridgen to Carol Valdyke.
DONE AND ENTERED this 26th day of June, 1980, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1980.
ENDNOTE
1/ See discussion of the meaning of "institution of agency proceedings" found in Sheppard v. Board of Dentistry, Case 55-51 (1DCA Fla. 1980) and Shavers Sr.
Florida Real Estate Commission, Case 00-286 (1DCA Fla. 1980)
COPIES FURNISHED:
H. Franklin Robbins, Jr., Esquire and Tana M. Plau, Esquire
112 South Lake Street Orlando, Florida 32801
James N. Watson, Jr. Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FOXIE'S OF ORLANDO, INC., d/b/a/ FOXIE'S LOUNGE,
Petitioner,
vs. CASE NO. 80-923
STATE OF FLORIDA, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO,
Respondent.
/
FINAL ORDER
Pursuant to notice, a hearing was held before Charles C. Adams, a Bearing Officer with the Division of Administrative Hearings. This hearing was conducted in the offices of the State of Florida, Division of Alcoholic Beverages and Tobacco, 5600 Diplomat Circle, Orlando, Florida, on June 3, 1980.
APPEARANCES
For Petitioner: H. Franklin Robbins, Jr., Esquire
and Tanya M. Plau, Esquire
112 South Lake Avenue Orlando, Florida 32801
For Respondent: James N. Watson, Jr., Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
ISSUE
The issue presented here concerns the entitlement of Foxie's of Orlando, Inc., d/b/a Foxie's Lounge to change the corporate officers listed with the State of Florida, Division of Alcoholic Beverages, in License No. 58-1133, Series 2-COP, by substituting the name Carol Valdyke for Wiley U. Pridgen.
FINDINGS OF FACT
The Petitioner, Foxie's of Orlando, Inc., is a Florida corporation owned by Carol Valdyke. She is also the President, Secretary and Treasurer of the corporation. Foxie's Lounge of Orlando, Inc., is the record holder of License No. 58-1133, Series 2-COP, which was issued by the Respondent, State of Florida, Division of Alcoholic Beverages and Tobacco. This agency, among other functions, is responsible for the licensure of certain entities who wish to sell alcoholic beverages in the State of Florida.
This action arises from the attempt of Foxie's Lounge of Orlando, Inc., to gain the permission of the Respondent to change its corporate officers from Wiley U. Pridgen to Carol Valdyke and the subsequent rejection of that effort, followed by a request by the licensee to be granted a hearing. The Director of the State of Florida, Division of Alcoholic Beverages and Tobacco, asked that the matter be heard by the State of Florida, Division of Administrative Hearings, and there issued a de novo bearing on June 3, 1980.
The facts reveal that License No. 58-1133, Series 2-COP, was held by Wiley
U. Pridgen on October 5, 1979. At that time, Pridgen asked the Respondent to grant a transfer of the license from Pridgen as an individual to the corporation, Foxie's of Orlando, Inc. (From the record, it is not clear whether the corporation had been formed effective October 5, 1979; however, it was established that the corporation was in existence on October 31, 1979.)
On October 31, 1979, in a transaction which Wiley U. Pridgen, as 100 percent owner, stockholder, President and Secretary of the corporation entered into with Carol Valdyke, the corporation was sold to Valdyke and she became the
percent owner. At the time she became the President, Secretary and Treasurer of the corporation, and Pridgen signed over the outstanding shares of stock in favor of Valdyke. Terms and conditions of this sale may be found in
the Petitioner's Exhibit 6 and Petitioner's Composite Exhibit 9 admitted into evidence.
Following the sale, Pridgen and Valdyke went to the offices of the Division of Alcoholic Beverages and Tobacco in Orlando and indicated to licensing official, Robert Bishop, a beverage officer, that Valdyke was assuming the corporation, Foxie's of Orlando, Inc. On this occasion, Valdyke filled out a personal questionnaire. A copy of tee personal questionnaire may be found an Petitioner's Exhibit 4 admitted into evidence. Pridgen had previously told Bishop that he intended to transfer the corporate license to Valdyke after the corporation had been formed and subsequent to the time that the license had been transferred from Pridgen's name individually into the corporate name, Foxie's of Orlando, Inc., and the October 31, 1979, events were in furtherance of that design.
On November 1, 1979, a temporary license in behalf of Foxie's of Orlando, Inc., d/b/a Foxies's Lounge, 2015 South Orange Blossom Trail, Orlando, Florida, was issued in License No. 58-1133, Series 2-COP. This was in response to the October 5, 1979, application for transfer of license from Wiley U. Pridgen to Foxie's of Orlando, Inc. A copy of that temporary license may b found as Petitioner's Exhibit 11 admitted into evidence.
A permanent license was issued for the benefit of Foxie's of Orlando, Inc., effective November 26, 1979, related to License No. 58-1133, Series 2-COP. This license authorized the sale of alcoholic beverages at 2015 South Orange Blossom Trail, Orlando, Florida. A copy of the license may be found as Petitioner's Exhibit 12 admitted into evidence.
On December 7, 1979, the Respondent received final information from Carol Valdyke, the owner of Foxie's of Orlando, Inc., necessary to effectuate her request to become the President, Secretary and Treasurer and listed owner/stockholder of the license holder, Foxie's of Orlando, inc., for purposes of complying with Respondent`s regulations related to these changes. The materials associated with that request included the Certificate of Incumbency and Declaration of Stock Ownership, a copy of which may be found as the Petitioner's Exhibit 5 admitted into evidence. At that point in time, from the facts presented in the hearing, it is concluded that the agency was aware of Use sale of the corporation to Valdyke, as reflected in Petitioner's Composite Exhibit 9), which features the Promissory Note and Security Agreement
A licensee application investigation was commenced after the case had been assigned to an employee within the agency on December 7, 1979. The investigation was completed on January 16, 1980, as established through a copy of the license application investigation which may be found as Petitioner's Exhibit 7 admitted into evidence. The only reservation about granting the request which was made in the investigative report was that comment found in Item 21. This item is a question which solicits comments from the investigator on the subject of reasons for approval or disapproval and, in responding, the comment "Yes" was made and by explanation stated, "See administrative case #29383 pending".
This reference in Item 21 to Petitioner's Exhibit 7 concerning case #29383, means case 29383-A, which is a Notice to Show Cause/Administrative Complaint containing allegations of October 31, 1979, and November 7, 1979, which had been placed against Foxie's of Orlando, Inc., License No. 58-1133, Series 2-COP. The exact date of the preparation of the allegations as set forth in a Notice to Show Cause document was not established in the hearing. It was shown that the
Notice to show Cause/Administrative Complaint and Notice of Informal Conference was served on Wiley U. Pridgen on March 17, 1980. A copy of the Notice to Show Cause and Notice of Informal Conference together with the statement of service may be found as the Petitioner's Composite Exhibit 3 admitted into evidence.
Case DABT #29383 is now pending before the Division of Administrative Hearings as DOAH No. 80-1039.
There had been another case, DABT #29332-A, which had been placed against Foxie's of Orlando, Inc., License No. 58-1133, Series 2-COP. This case was premised upon allegations of violations which occurred in May, 1979, and shows service of the Notice to Show Cause/Administrative Complaint and Notice of Informal Conference on January 2, 1980. A copy of this Notice to Show Cause/Administrative Complaint and Notice of Informal Conference may he bound as Petitioner's Composite Exhibit 2 admitted into evidence. This case was subsequently dismissed by order of the Director of the Division of Alcoholic Beverages and Tobacco dated April 7, 1980), a coby of which order may be found as Petitioner's Exhibit 1 admitted into evidence.
Sometime between December 7 1970 the completion date of Carol Valdyke's request for change of officers and ownership/ stockholder, and March 7, 1990, the Director of the Division of Alcoholic Beverages and Tobacco issued a memorandum to the corporation, Foxie's Lounge of Orlando, Inc., denying the request to change the officers. This relates to the change of officers from Lily U. Pridgen to Carol Valdyke. No mention was made in the course of the denial of the application about the subject of the change of Ownership- stockholder. A copy of the memorandum of denial may be found as Petitioner's Exhibit 10 admitted into evidence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.
Following the Petitioner, Foxie's of Orlando, Inc., d/b/a Foxie's Lounge's request to change the officers of the corporation from Wiley U. Pridgen to Carol Valdyke and to change the record owner/shareholder from Wiley U. Pridgen to Carol Valdyke, the Director, Division of Alcoholic Beverages and Tobacco disapproved the request to change officers prior to March 7, 1980, stating as a reason for the denial, "Administrative Action is pending and undetermined against the subject license," and citing as authority Chapter 559, Florida Statutes, and Section 561.32, Florida Statutes. Reference was not made to the case number of the pending administrative action which the Director had in mind in offering his denial; consequently, that suggests the Possibility that it could refer to DABT 29332-A or DABT #29383-A, or both. This opinion is held, notwithstanding the investigative materials which indicate that DABT 29383-A was the case upon which concern was expressed as being a possible basis for denying the subject application for change. However, the dilemma is solved because DABT #29332-A has been removed as a viable basis for denying the request for change of officers alluded to in the Director's memorandum, in view of his Order of Dismissal dated April 7, 1980, entered in DABT #29332-A.
That leaves for consideration the question of whether the pending action in DABT #29383-A (DOAH No. 80-1039) which is yet undetermined may serve as a basis for denying the requested change of officers.
An analysis of that provision of Chapter 559, Florida Statutes, which the Director has offered in support of his action denying the request to change officers leads to the conclusion that this chapter would not support the Director in his action. There are only two sections within Chapter 59 which might have application to the question of the change of officers. The first is that provision found in Part VI, in particular Section 559.79, Florida Statutes. If the Director had contended that some element of this provision had not been complied with and stated this as a grounds for denying the license, then it would be necessary to address that concern; however, nothing in the course of the hearing nor set forth in the memorandum of the Director stating the denial, which memorandum establishes the parameters of this inquiry, would demonstrate the relevancy of Section 559.79, Florida Statutes.
A second provision that might serve as a basis for denial is Section 559.791, Florida Statutes. Likewise, this provision does not have application to the dispute.
The next citation of authority offered in support of the Director's denial of the request is as found in Section 561.32, Florida Statutes, which states in pertinent part:
561.32 Transfer of licenses.--
(1) Licenses issued under the provisions
of the Beverage Law shall not be transferable except as follows: When a licensee shall have made a bona fide sale of the business which
he is so licensed to conduct he may obtain a transfer of such license to the purchaser of said business, provided the application of
the purchaser shall be approved by the division in accord with the same procedure provided
for in 55. 561.17, 561.18, and 561.19, in
the case of issuance of new licenses. However, no one shall be entitled as a matter of right to a transfer of a license when a revocation or suspension proceedings have been instituted against a license, and
transfers of license in any such case shall be within the discretion of the division....
This provision creates the discretion in the Director of the Division of Alcoholic Beverages and Tobacco to deny the transfer of the license when revocation or suspension proceedings have been instituted against the licensee. The comment on the question of the transfer of the license would include the discretion to reject the requested change of officers. It then becomes a question of whether the revocation or suspension proceedings as established in the Notice to Show Cause/Administrative Complaint, DABT #29383-A (DOAH No. 80- 1039) had been instituted against the licensee at the time the request was made for change of officers, providing that the Director was timely in acting on the request.
The request for change of officers yes completed and received by the agency on December 7, 1979. Under the circumstances, the agency had ninety (90) days after receipt of the request for change of officers to act upon that request.
See Subsection 120.60(2), Florida Statutes. Prior to March 7, 1980, the agency took action denying the change of officers and this was within the ninety (90) day period.
Relating back to the stated grounds for denial and the professed authority found in Section 561.32, Florida Statutes, at that point where the Director entered his denial, disciplinary action had not been instituted against the licensee by the advent of Notice to Show Cause/Administrative Complaint, DABT #29383-A (DOAH 80-1039) 1/ It was not instituted until March 17, 1980, when the Notice to Show Cause/Administrative Complaint and Notice of Informal Conference was served on the licensees. This institution of agency procoeding occurred at a time subsequent to the period within which the Director was required to evaluate and approve or deny the change of officer request.
Consequently, no revocation or suspension proceedings had been instituted against the licensee, Foxie's Lounge of Orlando, Inc., at the time the Director issued his memorandum denying the request for change of officers and when the proceedings for revocation of suspension had been instituted it was beyond the period of time in which the Director could have acted to deny the license on the basis of discretion reposed in him pursuant to Subsection 561.32(1), Florida Statutes.
Based upon the facts as found and the discussion set out above, it is concluded as a matter of law that the Petitioner, Foxie's Lounge of Orlando, Inc., d/b/a Foxie's Lounge, is entitled to change the corporate officers from Wiley U. Pridgen to Carol Valdyke in License No. 58-1133, Series 2-COP.
ORDER
It is ORDERED that Petitioner, Foxie's Lounge of Orlando, Inc., d/b/a Foxie's Lounge, holder of License No. 58-1133, Series 2-COP, be allowed to change the officers reflected in its license from Wiley U. Pridgen to Carol Valdyke.
DONE AND ORDERED this 25th day of September, 1980.
CHARLES A. NUZUM, Director Division of Alcoholic Beverages
and Tobacco
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
(904) 488-7891
ENDNOTE
1/ See discussion of the meaning of institution of agency proceedings found in Sheppard v. Board of Dentistry, Case ss-51 (1DCA Fla. 1980. and Shavers v.
Florida Real Estate Commission, Case 00-286 (1DCA Fla. 1980).
Copies furnished to:
Charles C. Adams, Hearing Officer James N. Watson, Jr., Esq. Division of Administrative Hearings Department of Business
Collins Building Regulation Tallahassee, Florida 32301 725 South Bronough Street
Tallahassee, Florida 32301
H. Franklin Robbins, Jr., Esquire and Tana M. Plau, Esquire
112 South Lake Street Orlando, Florida 32801
| Issue Date | Proceedings |
|---|---|
| Sep. 30, 1980 | Final Order filed. |
| Jun. 26, 1980 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 25, 1980 | Agency Final Order | |
| Jun. 26, 1980 | Recommended Order | Grant change of officers received before the administrative process began. |
