STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOROTHY RISBY, d/b/a VIP )

NIGHT CLUB, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1302

) 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. The hearing was conducted on August 5, 1980, in Room 409, Richard P. Daniel State Office Building, 111 East Coast Line Drive, Jacksonville, Florida.

APPEARANCES

For Petitioner: Dorothy Risby

922 East Brownlee Street Starke, Florida 32091

For Respondent: William Hatch, Esquire

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

ISSUE

The issue presented here concerns the entitlement of the Petitioner to be granted a new Series 2-COP beverage license from the Respondent.

FINDINGS OF FACT

1. The Petitioner, Dorothy Risby, filed an application to be issued a new Series 2-COP alcoholic beverage license. The application was filed on January 28, 1980, and if the license were issued, it would allow for the sale of beer and wine to be consumed at the Petitioner's premises known as the V I P Night Club, located at 922 East Brownlee Street, Starke, Florida.

   
   

2. After the Respondent, State of Florida, Division of Alcoholic Beverages and Tobacco, had received and reviewed the application, it was denied. The basis of the denial was, quoting from the license application denial, "undisclosed interest" and reference was made to Section 561.17, Florida Statutes, as the authority for such denial. Specifically, the Respondent is persuaded that Albert Parrish has an "undisclosed interest" in the prospective

   licensed premises and that in view of this interest the Petitioner is not entitled to receive the beverage license.

   
   

3. Albert Parrish was the former holder of an alcoholic beverage license issued by the Respondent, and the licensed premises to which the license pertained was the same premises as contemplated by the present Petitioner. Parrish did business at that location under the name Red Honey until his license was revoked on December 31, 1979.

   
   

4. The current Petitioner has known Albert Parrish for a period of ten to twelve years and in the course of that time, Parrish has helped support the children of the Petitioner who presently live at home with her. This support spoken to is financial support. The Petitioner and Albert Parrish have also lived together in that period of time and as recently as February, 1980.

   
   

5. The latter statement concerning the living arrangements between the Petitioner and Parrish was ascertained when Beverage Officer Robert W. Cunningham went to the licensed premises in making a pre-licensure inspection in February, 1980, and encountered Albert Parrish on the proposed licensed premises. Parrish indicated that he was just at the licensed premises sleeping following a break-in that had occurred at that location. At the same time he indicated that he was living at Apartment 51 on Brownlee Street, Starke, Florida, which is the residence address given by the Petitioner in her application for licensure. This also was the same residence address that Albert Parrish had put on his beverage license application when he had applied for the beverage license issued to him in the past.

   
   

6. In the course of the meeting referred to above, Parrish stated that the utilities for the licensed premises were being paid for by him and that the phone in the licensed premises was primarily for the benefit of the ABC Junk Yard, a business operated by Parrish, which was located at that time behind the prospective licensed premises. The phone located at the licensed premises also rang at the Apartment 51 when calls were made in.

   
   

7. At the time of Cunningham's conversation with Parrish, the rent for the licensed premises was being paid month to month and was paid at times by the Petitioner and at other times by Parrish. The most recent rent of August, 1980, was paid by the Petitioner.

   
   

8. At the time of the hearing, the utilities for the licensed premises still remained in the name of Albert Parrish, although payment for those utilities was being made by the Petitioner. The telephone remained in the name of Albert Parrish because in the words of the Petitioner, it cost $200.00 to change over the phone from Parrish's name to the Petitioner's name and the Petitioner could not afford to make that change. In the interim, the Petitioner intends to pay for the telephone until such time as she cannot afford to pay and the service charges and at that time she would expect the telephone to be removed for nonpayment.

   
   

9. At the time of the hearing, Albert Parrish was no longer in the junk yard business at the licensed premises and was not living with the Petitioner at the Apartment 51 due to the fact that the welfare officials had instructed the Petitioner that if Parrish lived there, the Petitioner could not receive help for her children. At present, the Petitioner does not know the exact residence address of Parrish nor of his future intentions regarding their relationship in which she had been his "girlfriend" in the past. Parrish still gives her $10.00 or $15.00 when he can afford it and when she asks him for the money.

10. The Petitioner presently sells sandwiches and soft drinks at the licensed premises and has an occupational license from Bradford County, Florida, which allows her to do this. This license is in her sole name. Albert Parrish is not involved in the daily operation of this business.

    
    

11. It is the intention of the Petitioner to expand the base of her operations to include the sales of alcoholic beverages. In taking over the licensed premises, she intends to continue to pay the month-to-month rent due at the licensed premises. In pursuit of the expansion of her business, Parrish gave the Petitioner certain tables and chairs in the licensed premises to use for her purposes. Parrish was not paid any amount of money for his good will or inventory and no inventory remained to be used by the current Petitioner. The Petitioner receives other income from the licensed premises in the form of a concessions for a "piccolo and pool tables". The average amount of income from those concessions being $65.00 for the piccolo and $80.00 for the pool table, on a weekly basis, of which one-half of the money is paid to the concessionaire of those items in lieu of rentals.

    
    

12. Presently, the apartment rent of the Petitioner is paid primarily from funds received from the business, from money provided by the Petitioner's elder sons, and from welfare payments to the Petitioner.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. In discussing the requirements for licensure, Subsection 561.17(1), Florida Statutes, states:

    
    

    "If the applicant or any person interested with the applicant either directly or indirectly in the business is not qualified, the application shall be denied by the Division."

    
    

15. An examination of the facts presented herein leads to the conclusion that Albert Parrish has an indirect interest in the business. Therefore, if Albert Parrish is not qualified to hold a beverage license, then the Petitioner may be denied her application for beverage license.

    
    

16. One of the stated grounds for disqualification of a beverage license applicant is found in Subsection 561.15(3), Florida Statutes, in that language, "The Division of may refuse to issue a license under the Beverage Law to any person. . .whose license under the Beverage Law has been revoked. . .". Albert Parrish has had his beverage license revoked in the past and the Respondent was acting within its discretion by refusing to issue a beverage license to the current Petitioner on the basis of the prior revocation of Albert Parrish's beverage license.

RECOMMENDATION

It is RECOMMENDED that the Petitioner, Dorothy Risby's application for a new Series 2-COP alcoholic beverage license be DENIED.

DONE AND ENTERED this 4th day of September, 1980, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1980.

COPIES FURNISHED:

Dorothy Risby

922 East Brownlee Street Starke, Florida 32091

William Hatch, Esquire

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

Docket for Case No: 80-001302

Orders for Case No: 80-001302