STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADULT WORLD, INC., d/b/a )

STRIP WORLD TOPLESS )

ENTERTAINMENT, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1144

) 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 September 8, 1980, in Room 16, Dan T. McCarty Building, 941 West Morse Boulevard, Winter Park, Florida.

APPEARANCES

For Petitioner: H. Franklin Robbins, Jr., 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

ISSUES

The issue presented here concerns the entitlement of Wiley Ulee Pridgen to transfer the beverage license which be owned to the entity, Adult World, Inc., a corporation.

FINDINGS OF FACT

Pursuant to an agreement entered into between the parties in the person of their counsel, made on September 8, 1980, the date for hearing in this cause, and in view of the written Stipulation which consummated the purposes of that agreement, the following facts are found:

1. Wiley U. Pridgen was served with official notice that charges would be filed against him on December 10, 1979.

   
   

2. On December 21, 1979, Wiley U. Pridgen filed an application with Respondent's Orlando District Office for transfer of ownership of his beverage license to Adult World, Inc., a corporation.

3. On March 6, 1980, Wiley U. Pridgen was notified by the Director of the Division of Alcoholic Beverages and Tobacco that his application for transfer of ownership had been disapproved for the reason that administrative action is pending and undetermined against the subject licensee pursuant to Florida Statute 561.32.

   
   

4. On March 17, 1980, a copy of the formal administrative charges were served on Wiley U. Pridgen.

   
   

5. On August 8, 1980, Charles C. Adams, Hearing Officer, Division of Administrative Hearings, entered an order dismissing the instant Notice to Show Cause with leave to refile.

   
   

6. On August 25, 1980, formal charges were served upon Petitioner in the form of a Notice to Show Cause after affording a hearing to Wiley U. Pridgen under Florida Statute 120.60(6).

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. In responding to Wiley U. Pridgen's request to change the ownership of the subject beverage license from Pridgen as an individual to the corporation, Adult World, Inc., the Director, Division of Alcoholic Beverages and Tobacco, denied that request in keeping with the alleged authority found in Section 561.32, Florida Statutes. That provision 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 trans-

      fer 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 a 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..."

      
      

      As contended by the Director, this provision does establish the discretion in 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 form of transfer spoken of in this provision, would include the discretion to reject the requested change of ownership. Having made this determination, there remains to be decided the question of whether the revocation or suspension proceedings, as established in the Notice to Show Cause/Administrative Complaint, DABT No. 29384-A (DOAH No. 80-900) had been "instituted" against the licensee at the time the request was made for change of ownership, providing that the Director made a timely response to the request.

9. To be timely in his response, the Director in this case had to act within ninety (90) days after receipt of the request for change of ownership. 1/

   
   

10. The application for change of officers was filed on December 21, 1979, followed by the March 6, 1980, notification to Wiley U. Pridgen that the application for transfer of ownership had been disapproved on the basis of administrative action pending and undetermined against the subject licensee.

    
    

11. On March 17, 1980, Wiley U. Pridgen was served with the aforementioned Notice to Show Cause/Administrative Complaint and although this service postdated notification of the denial of the application, the "institution" of agency proceedings on March 17, 1980, relates back to the notification of disapproval. The effect of the relation back allows the "institution" of agency proceedings through the subject Notice to Show Cause/Administrative Complaint of March 17, 1980, to describe those pending agency proceedings mentioned in the March 6, 1980, letter of denial. This interpretation is further supported by the December 10, 1979, official notification of the pendency of the charges to be filed against Wiley U. Pridgen's license, which official notification predated the application for transfer of ownership.

    
    

12. Unlike the situation Presented in Foxie's of Orlando, Inc., d/b/a Foxie's Lounge, Petitioner v. State of Florida, Division of Alcoholic Beverages and Tobacco, Respondent, DOAH Case No. 80-923, the "institution" of agency proceedings took place within the ninety (90) day period within which time the agency head had the opportunity to deny the application for transfer of ownership. 2/

    
    

13. Moreover, the fact that the Notice to Show Cause/Administrative Complaint, DABT No. 29384-A (1)OMI No. 80-900) was dismissed for noncompliance with Subsection 120.60 (6) Florida statutes, 3/ does not disturb the conclusion that the Director made a timely denial of the application for transfer of ownership. The dismissal was interlocutory and the agency has refiled the charges after granting the Respondent in that cause the opportunity to show that he had complied with requirements of law within the meaning of Subsection 120.60(6), Florida Statutes.

    
    

14. Based upon the facts as found in the discussions set forth herein, it is concluded as a matter of law that Petitioner, Adult World, Inc., d/b/a Strip World Topless Entertainment, is not entitled to transfer the ownership of the license from Wiley U. Pridgen to Adult World, Inc., in License No. 58-1278, Series 2-COP.

RECOMMENDATION

It is RECOMMENDED that the Petitioner, Adult World, Inc., d/b/a Strip World Topless Entertainment, be denied its request to have the ownership of License No. 58-1278, Series 2-COP, transferred from Wiley U. Pridgen to Adult World, Inc.

DONE AND ENTERED this 7th day of October, 1980, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

ENDNOTES

1/ "(2) then an application for a license is made as required by law, the agency shall conduct the proceedings required with reasonable dispatch

and with due regard to the rights and privileges of all affected parties or aggrieved persons.

Within 30 days after receipt of an application for a license, the agency shall examine

the application, notify the applicant of any apparent errors or omissions, and request any additional information the agency is permitted

by law to require. Failure to correct an error or omission or to supply additional information

shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30-day period. The agency shall notify the applicant if the activity for which he seeks

a license is exempt from the licensing requirement and return any tendered application fee within 30 days after receipt of the original application or within 10 days after receipt of the

timely requested additional information or correction of errors or omissions. Every application for license shall he approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions unless a shorter period of time for agency action is provided by law. The 90-day or shorter time period shall he tolled by the initiation of a proceeding under s. 120.57 and shall resume 10 days after the recommended order is submitted to the agency and the parties. Any application for a license not approved or denied within the 90-day or shorter time period, within 15 days after conclusion of a public hearing held on the application, or within 45 days after the recommended order is submitted to the agency and the parties, whichever is latest, shall he deemed approved and, subject to the satisfactory completion of an examination, if required as a prerequisite to licensure, the license shall he issued. The Public Service Commission, when issuing a license, and any

other agency, if specifically exempted by law, shall be exempt from the time limitations within this subsection. Each agency, upon issuing or denying a

license, shall state with particularity the grounds or basis for the issuance or denial of same, except where issuance is a ministerial act. On denial of a license application on which there has been no hearing, the denying agency shall inform the applicant of any right to a hearing pursuant to s. 120.57."

2/ See discussion of the meaning of "Institution of agency proceedings" found in Sheppard v. Board of Dentistry, Case 55-51, 385 So.2d 143, (1st DCA Fla.

1980) and Chavers v. Florida Real Estate Commission, Case 00-286, 384 So.2d 963 (1st DCA Fla. 1980).

3/ "(3) The provisions of subsection (2) notwithstanding, every application for a certificate of authority as required by s. 624.401 shall be approved or denied within 180 days after receipt of the original application. Any application for such a certificate of authority not approved or denied within the 180-day period, or within 30 days after conclusion of a public hearing held on the application, shell be deemed approved, subject to the statutory completion of conditions required by statute as a prerequisite to license."

COPIES FURNISHED:

H. Franklin Robbins, Jr., Esquire,

112 South Lake Avenue Orlando, Florida 32801

James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 80-001144

Orders for Case No: 80-001144